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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.