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Mutual referral and commission agreement

Under this mutual referral and commission agreement, each party may refer customers to the other party in consideration for the other party paying commission to the referring party.

Limitations may be placed upon the scope of the referral rights. For instance, the rights of the referring party to market the services of the other party may be limited to a particular territory. Alternatively or in addition, the types of referrals may be limited by reference to the types of services to be supplied by the party receiving the referrals.

It is assumed in the agreement that each party will operate a referral tracking system. The basic rule is that commission is payable only with respect to customers that are attributed to the relevant party in the referral tracking system. If a customer is registered in the referral tracking system to another person at the point of the referral, no commission will be payable.

This agreement should not be used where the commission payments relate to the supply of physical goods; nor should it be used in relation to relationships subject to the law of agency.

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Mutual referral and commission agreement contents

  1. Definitions: definitions.
  2. Term: commencement of term; end of term.
  3. Referrals by 
    Second Party
    :
    appointment of
    the Second Party
     as referral partner; right or obligation to market 
    First Party
     services; procedure for
    Second Party
    referrals; right to reject
    Second Party
    referral registration; compliance with law relating to 
    Second Party
    referrals.
  4. Referrals by 
    First Party
    :
    appointment of 
    the First Party
    as referral partner; right or obligation to market 
    Second Party
    services; procedure for
    Second Party
    referrals; right to reject
    Second Party
    referral registration; compliance with law relating to
    First Party
    referrals.
  5. No exclusivity: no referrals exclusivity for either.
  6. Mutual obligations: neither party is agent etc of other; protection of second party reputation and goodwill; protection of first party reputation and goodwill.
  7. Second Party
    Commission:
    obligation to pay
    Second Party
    commission upon referral; notice of commission payable in respect of
    Second Party
    referrals; issue of invoice by 
    Second Party
    for commission; time for payment of commission following invoice ;
    Second Party
     referral commission after termination.
  8. First Party
    Commission:
    obligation to pay 
    First Party
    commission upon referral; notice of commission payable in respect of 
    First Party
     referrals; issue of invoice by
    First Party
    for commission ; time for payment of commission following invoice;
    First Party
     referral commission after termination.
  9. Interest: interest on late payments (mutual).
  10. Audit: right of audit in case of disputed payment (mutual); costs of audit (mutual); limits on audit right.
  11. Confidentiality obligations: first party confidentiality undertaking; second party confidentiality undertaking; disclosure of confidential information to certain persons; exceptions to confidentiality obligations; disclosures of confidential information mandated by law etc; parties to stop using confidential information upon termination; parties to return or destroy confidential information following termination; confidentiality obligations after termination.
  12. Publicity: limited public disclosures; limited public disclosures by first party; limited public disclosures by second party; confidentiality obligations overriding.
  13. Warranties: first party warranty of authority; second party warranty of authority; exclusion of implied warranties and representations.
  14. Indemnities: indemnity upon breach: any provision or specified provisions (with definition); conditions upon first party indemnity; indemnity upon breach: any provision or specified provisions (with definition); conditions upon second party indemnity; limitations of liability vs indemnities.
  15. Limitations and exclusions of liability: caveats to limits of liability; interpretation of limits of liability; no liability for loss of profits; no liability for loss of revenue; no liability for loss of use; no liability for loss of opportunities; no liability for loss of data or software; no liability for consequential loss.
  16. Termination: termination without cause (optionally assymetric); termination by either party without cause; termination upon breach; termination upon insolvency.
  17. Effects of termination: surviving provisions upon termination; termination does not affect accrued rights.
  18. Non-solicitation of personnel: non-solicitation of employees by second party; non-solicitation of employees by first party.
  19. Notices: methods and deemed receipt of contractual notices; contact details for contractual notices; substitute contact details for notices.
  20. General: no waiver; severability; variation written and signed; no assignment without written consent; no third party rights; entire agreement; governing law; exclusive jurisdiction.
  21. Interpretation: statutory references; section headings not affecting interpretation; calendar month meaning; no ejusdem generis.
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