CommPeak Partner Program - Reseller Agreement

This Referral Agreement (the "Agreement") is made effective as of the date of execution (the "Effective Date") by and between CommPeak Limited, a Hong Kong registered corporation with a registered address at 1906 Lee Garden One, 33 Hysan Avenue, Causeway Bay, Hong Kong ("CommPeak Limited") and the party who executes this agreement ("Reseller").

IN CONSIDERATION OF the mutual promises and covenants hereinafter contained and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:

1. Referrals
   1. Subject to the terms and conditions of this Agreement, Reseller may from time to time refer potential customers ("Potential Customers") to CommPeak Limited. Reseller shall give CommPeak Limited written notice of Potential Customers via email to resellers@commpeak.com.
   2. CommPeak Limited, in its sole discretion, shall have the option to enter into, or decline to enter into, an agreement with any Potential Customer. In the event CommPeak Limited declines, for any reason, to enter into an agreement with any Potential Customer, CommPeak Limited shall have no obligation to Reseller under this Agreement or otherwise with respect to such Potential Customer.
   3. If (a) such Potential Customer has: (i) not previously entered into an agreement with CommPeak Limited; (ii) not previously been referred or introduced to CommPeak Limited by any other person; and (iii) not previously been documented as a Customer (as defined below); and (b) CommPeak Limited enters into an agreement with any such Potential Customer, upon such terms and conditions acceptable solely to CommPeak Limited and such Potential Customer, within sixty (60) days of such Potential Customer being referred to CommPeak Limited by Reseller, such Potential Customer shall be considered a "Customer" for purposes of this Agreement and CommPeak Limited shall pay a fee to Reseller as set forth below in Section 2.
   4. In the event a referral of a Potential Customer is disputed among one or more Resellers, finders or other persons, CommPeak Limited alone shall determine which party, based solely upon who first provided it with written notice of such Potential Customer, is entitled to a fee, if any, with respect to such Potential Customer.
2. Compensation
   1. Reseller shall be entitled to a commission of 2% (the "Reseller Commission") of the referred customers gross revenue pursuant to the initial contract entered into by CommPeak Limited.
   2. CommPeak Limited shall pay the Referral Fee to Reseller within 14 days of the commencement of customers the previous months billing cycle for all commissions exceeding one hundred U.S. dollars ($100 USD). Any commission below $100 will be accumulated and paid once the $100 threshold is met. Neither the Reseller Commission nor any other amount shall be owed to Reseller with respect to any order (i) that CommPeak Limited rejects for any reason, (ii) which may be cancelled by a customer, whether or not due to a default by CommPeak Limited or (iii) for which full payment is not actually received by CommPeak Limited. Reseller acknowledges that the Reseller Commission is the only compensation Reseller shall receive in connection with Reseller’s efforts and that all goodwill and benefit derived from such efforts shall inure to the sole benefit of CommPeak Limited.
3. Term and Termination
   1. The term of this Agreement shall be one (1) year from the Effective Date.
   2. Either party may terminate this Agreement at any time upon thirty (30) days prior written notice to the other party. Upon termination of the Agreement, a list shall be prepared of all pending unfinished business involving any Customers or Potential Customers introduced by Reseller (which list shall be agreed to and signed by both parties hereto and shall control any and all claims for Referral Fees after the termination of this Agreement). Reseller shall be entitled to the Reseller Commission as long as a Customer continues to pay CommPeak Limited for services under the initial contract or for a maximum of six months upon termination; provided, however, Reseller shall cease to be entitled to any Reseller Commission due to it as of the date of termination if this Agreement is terminated by CommPeak Limited for cause as hereinafter defined. As used herein, "cause" shall mean any breach of sections 4.1, 4.2, 8.3 or 8.4 of this Agreement by Reseller. In no event shall the above referenced list include any parties that were not identified to CommPeak Limited by Reseller as Potential Customers in writing prior to giving the termination notice.
4. Acting as Finder Only; Non-Exclusivity
   1. It is understood that Reseller is acting as a finder only and shall have no authority to enter into any agreements, obligations or commitments on CommPeak Limited’ behalf, or to negotiate the terms of Potential Customers’ agreements with CommPeak Limited. Reseller hereby agrees to indemnify, defend and hold CommPeak Limited harmless from and against any claims, actions, lawsuits, damages, awards or judgments arising out of any such agreements, obligations or commitments undertaken by Reseller or the breach thereof. Reseller is required to provide a minimum of one referral during each quarter.
   2. Reseller acknowledges that CommPeak Limited may enter into referral agreements or other similar arrangements with other parties and that Reseller shall have no rights under such agreements or to any fees for customers referred to CommPeak Limited by others or identified by CommPeak Limited itself. During the term of this agreement and for a period of three years following termination, Reseller agrees not hire or to cause anyone to hire any employee or contractor of CommPeak Limited. Reseller also agrees during the term of this agreement and for a period of three years following termination, not to reveal the names or identities of any CommPeak Limited customer or customer contact.
5. Relationship

   Reseller and CommPeak Limited expressly intending that no employment, partnership, or joint venture relationship is created by this Agreement, hereby agree as follow: (i) neither Reseller nor anyone employed by or acting for or on behalf of Reseller shall ever be construed as an employee of CommPeak Limited and CommPeak Limited shall not be liable for employment taxes respecting Reseller or any employee of Reseller; (ii) Reseller shall not make any commitment or incur any charge or expense in the name of CommPeak Limited without the prior written approval of CommPeak Limited; (iii) Reseller expressly acknowledges and agrees that except to the extent expressly provided herein, neither Reseller nor anyone employed by or acting on behalf of Reseller shall receive or be entitled to any consideration, compensation or benefits of any kind from CommPeak Limited.

6. Indemnification

   Each party shall indemnify, defend and hold the other party (and all officers, directors, employees, Resellers and affiliates thereof) harmless from and against any and all claims, demands, actions, losses, damages, assessments, charges, liabilities, costs and expenses (including without limitation interest, penalties, and attorney’s fees and disbursements) which may at any time be suffered or incurred by, or be assessed against, any and all of them, directly or indirectly, on account of or in connection with: (i) such party’s default under any provision herein, breach of any representation or warranty herein, or failure in any way to perform any obligation hereunder; or (ii) negligent acts or omissions or the willful misconduct of such party or its employees, Resellers, contractors or invitees.

7. Liability

   Under no circumstances shall either party be liable for any indirect, incidental, economic, special, punitive or consequential damages, whether for breach of contract, negligence or under any other cause of action, that result from the relationship or the conduct of business contemplated herein.

8. Miscellaneous
   1. Entire Agreement

      This Agreement constitutes the sole and entire understanding between the parties with respect to the subject matter hereof and may not be altered or amended except in writing signed by both parties. This Agreement supersedes all prior communications or agreements written or oral, and is intended as a complete and exclusive statement of the terms of the Agreement between the parties.

   2. Notice

      All notices given and requests made hereunder must be sent in writing and must be delivered or sent either by nationally recognized overnight courier, return receipt requested, postage prepaid. All notices to either party shall be delivered to their respective address listed above. The parties may change their address by notice delivered to the other party. Any notice or request sent by registered or certified United States mail, return receipt requested, postage prepaid shall be deemed given on the date of receipt or refusal as indicated on the return receipt. Any notice or request sent by overnight courier service shall be deemed given on the date of receipt or refusal of the same.

   3. Confidentiality

      Reseller acknowledges that by reason of its relationship to CommPeak Limited hereunder, it may have access to certain information and material concerning CommPeak Limited’ business, plans, customers, technology and products that are confidential and of substantial value to CommPeak Limited, which value would be impaired if such information were disclosed to third parties. Reseller agrees that it will not use in any way for its own account or the account of any third party, nor disclose to any third party, any such confidential information revealed to it by CommPeak Limited. In the event of termination of this Agreement, there shall be no use or disclosure by Reseller of any confidential information of CommPeak Limited and any materials related to CommPeak Limited shall be immediately returned to CommPeak Limited. Reseller acknowledges that the provisions of this Section are reasonable and necessary for the protection of CommPeak Limited and that CommPeak Limited will be irrevocably damaged if such covenants are not specifically enforced. Accordingly, Reseller agrees that, in addition to any other relief to which CommPeak Limited may be entitled in the form of actual or punitive damages, CommPeak Limited shall be entitled to seek and obtain injunctive relief from an arbitration panel or a court of competent jurisdiction for the purposes of restraining Reseller from any actual or threatened breach of such provision. The terms of this Section shall survive termination of this Agreement.

   4. Representations, Warranties and Covenants

      Reseller represents, warrants and covenants to CommPeak Limited that at the Effective Date and continuing for the term of this Agreement that neither the execution and delivery of this Agreement nor the sale of CommPeak Limited services in accordance with the terms of this Agreement violates or will violate the provisions or obligations of any other agreements to which Reseller is a party or by which it is bound.

   5. Successors and Assigns

      Except as otherwise expressly provided in this Agreement, the obligations under this Agreement shall bind and benefit the successors and assigns of the parties hereto. Reseller shall not assign this agreement without the prior written consent of CommPeak Limited.

   6. Governing Law

      The laws of the country of Hong Kong shall govern this Agreement without giving effect to the choice of law provisions thereof. Reseller agrees to submit to the jurisdiction of the country courts of Hong Kong.

   7. Authority

      If either party is a corporation or limited liability company, each person executing this Agreement on behalf of such party hereby covenants, represents and warrants that such party is duly formed or duly qualified and that each person executing this Agreement on behalf of such party is an officer or member of such party and is duly authorized to execute, acknowledge and deliver the Agreement to the other party.

   8. Counterparts

      This Agreement may be executed in one or more counterparts and both parties agree by ‘checking’ and/or enabling the "OK, I Agree" box below shall be sufficient to indicate the understanding and acceptance and of the above Terms And Conditions by the parties.