THE REFERRAL Agreement (this “Agreement”) is made and entered by and between E Com Security Solutions Private Limited, a company incorporated under Indian Laws, having its Corporate Office at Jain PCH Rock Garden, Phase – 3, Vittal Rao Nagar, HITEC City, Hyderabad – 500081, India (“Hereinafter be called and referred to as E Com Security Solutions”), and The Referral.
1. SCOPE OF AGREEMENT:
a. Subject to the provisions of this Referral Agreement (the “Agreement”), THE REFERRAL agrees to refer potential customers (“Potential Customers”), to E Com Security Solutions who, in THE REFERRAL’S reasonable opinion, has a requirement for E Com Security Solutions’ software products and services.
b. E Com Security Solutions, in its sole discretion, shall have the option to enter, or decline to enter, an agreement with any Potential Customer. In the event E Com Security Solutions declines, for any reason, to enter an agreement with any Potential Customer, E Com Security Solutions shall have no obligation to THE REFERRAL under this Agreement or otherwise with respect to such Potential Customer.
c. If (a) such Potential Customer has (i) not previously entered into an agreement with E Com Security Solutions; (II) not previously been referred or introduced to E Com Security Solutions in writing by any other person; and (III) not previously been documented as a Customer (as defined below); and (b) E Com Security Solutions enters into an agreement with any such Potential Customer, upon such terms and conditions acceptable solely to E Com Security Solutions and such Potential Customer, within sixty (60) days of such Potential Customer being referred to E Com Security Solutions by THE REFERRAL, such Potential Customer shall be considered a “Customer” for purposes of this Agreement and E Com Security Solutions shall pay a fee to THE REFERRAL as set forth below in Section 2.
d. In the event a referral of a Potential Customer is disputed among one or more Referrals, finders or other persons, E Com Security Solutions 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 and such determination of E Com Security Solutions shall be final
2. PAYMENT; REFERRAL COMMISSIONS:
The Referral is entitled to a commission of an amount, equal to ten percent (10%) of the Net Revenue received from the Prospect on said transaction. “Net Revenue” shall mean all amounts received (and not subject to refund or other contingency), minus shipping and handling, insurance, interest, finance charges, third-party content royalties, service tax and other applicable taxes (other than taxes based on E Com Security Solutions income). The Referral shall only be entitled to receive commission as stated above only on receipt of the payment from the Customer. The Referral is entitled to commission only on the first assignment referred by him and not on subsequent assignments that are offered by the Customer. Commissions will be paid only on the Net Revenue and not on maintenance services. Each Commission under this Section shall be due no later than the last day of the calendar month following the calendar month in which E Com Security Solutions collects the amount on which such Commission is due.
Neither party will issue any press releases nor make any public statements regarding this Agreement without the prior written consent of the other party
4. TERM AND TERMINATION:
This Agreement will commence with effect from the Date on which the both parties have signed and will continue for one (1) year, unless earlier terminated as provided in this Section 6. Either party will have the right to terminate this Agreement, at any time, by giving thirty (30) days written notice to the other party. E Com Security Solutions may terminate this Agreement immediately in the case of THE REFERRAL’S breach of any terms and conditions of this Agreement. Each party understands that, after the date of termination of this Agreement, each party shall have no right whatsoever to continue any relationship with the other party and that THE REFERRAL shall not be entitled to any compensation in connection with such termination.
THE REFERRAL and E Com Security Solutions expressly intending that no employment, partnership, or joint venture relationship is created by this Agreement, hereby agrees as follow: (i) neither THE REFERRAL nor anyone employed by or acting for or on behalf of THE REFERRAL shall ever be construed as an employee of E Com Security Solutions and E Com Security Solutions shall not be liable for employment taxes respecting THE REFERRAL or any employee of THE REFERRAL; (ii) THE REFERRAL shall not make any commitment or incur any charge or expense in the name of E Com Security solutions without the prior written approval of E Com Security Solutions; (iii) THE REFERRAL expressly acknowledges and agrees that except to the extent expressly provided herein, neither THE REFERRAL nor anyone employed by or acting on behalf of THE REFERRAL shall receive or be entitled to any consideration, compensation or benefits of any kind from E Com Security Solutions. (iv) E Com Security Solutions will be responsible for preparing and providing all price quotes to Prospects. (v) THE REFERRAL shall not collect any amounts from customers in the name of E Com Security Solutions.
THE REFERRAL acknowledges that by reason of its relationship to E Com Security Solutions herein, it may have access to certain information and material concerning E Com Security Solutions business, plans, customers, technology and products that are confidential and of substantial value to E Com Security Solutions, which value would be impaired if such information were disclosed to third parties. THE REFERRAL 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 E Com Security Solutions. In the event of termination of this Agreement, there shall be no use or disclosure by THE REFERRAL of E Com Security Solutions and disclosure by THE REFERRAL of any confidential information of E Com Security Solutions and any materials related to E Com Security Solutions shall be immediately returned to E Com Security Solutions. THE REFERRAL acknowledges that the provisions of this Section are reasonable and necessary for the protection of E Com Security Solutions and that E Com Security Solutions will be irrevocably damaged if such covenants are not specifically enforced. Accordingly, THE REFERRAL agrees that, in addition to any other relief to which E Com Security Solutions may be entitled in the form of actual or punitive damages, E Com Security Solutions shall be entitled to seek and obtain injunctive relief from an arbitration panel or a court of competent jurisdiction for the purposes of restraining THE REFERRAL from any actual or threatened breach of such provision.
7. ILLEGAL, FRAUDULENT OR IMPROPER ACTIVITY
The Referral will not use the company assigned email or any service or product by Key for any illegal, fraudulent, unauthorized, or improper activity (a “Prohibited Use”). If we suspect that The Referral may be engaging in any Prohibited Use, the access to the email or web Site and any service or product may be suspended or terminated without notice. The Referral agrees to cooperate fully with Key to investigate any suspected Prohibited Activity or unauthorized use.
This Agreement shall be governed by and construed in accordance with the local laws of India. Any controversies, differences or disputes (“dispute/s”) arising out of or in connection with this agreement shall be resolved amicably by both the parties failing which such dispute/ shall be referred to exclusive jurisdiction of the courts of the Hyderabad, in accordance with Arbitration and Conciliation Act, 1996.