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:
1.1 Subject to the terms and conditions of this Agreement, Agent may from time to time refer potential customers (“Potential Customers”) to Voyant. Agent shall give Voyant written notice of Potential Customers in accordance with Section 8.2 below.
1.2 Voyant, 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 Voyant declines, for any reason, to enter into an agreement with any Potential Customer, Voyant shall have no obligation to Agent under this Agreement or otherwise with respect to such Potential Customer.
1.3 If (a) such Potential Customer has: (i) not previously entered into an agreement with Voyant; (ii) not previously been referred or introduced to Voyant by any other person; and (iii) not previously been documented as a Customer (as defined below); and (b) Voyant enters into an agreement with any such Potential Customer, upon such terms and conditions acceptable solely to Voyant and such Potential Customer, within sixty (60) days of such Potential Customer being referred to Voyant by Agent, such Potential Customer shall be considered a “Customer” for purposes of this Agreement and Voyant shall pay a fee to Agent as set forth below in Section 2.
1.4 In the event a referral of a Potential Customer is disputed among one or more agents, finders or other persons, Voyant 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.
2.1 Agent shall be entitled to a commission of 10% (the “Referral Fee”) of the referred “retail or SMB” customers gross revenue pursuant to the initial contract entered into by Voyant. If Agent refers a customer that signs up as an eVAR or wholesale customer, the Agent shall be entitled to a commission of 7% of that customer’s monthly gross revenue.
2.2 Voyant shall pay the Referral Fee to Agent within 14 days of the commencement of customers the previous months billing cycle for all commissions exceeding fifty dollars ($50). Any commission below $50 will be accumulated and paid once the $50 threshold is met. Neither the Referral Fee nor any other amount shall be owed to Agent with respect to any order (i) that Voyant rejects for any reason, (ii) that may be cancelled by a customer, whether or not due to a default by Voyant or (iii) for which full payment is not actually received by Voyant. Agent acknowledges that the Referral Fee is the only compensation Agent shall receive in connection with Agent’s efforts and that all goodwill and benefit derived from such efforts shall inure to the sole benefit of Voyant.
3.1 The term of this Agreement shall be one (1) year from the Effective Date.
3.2 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 Agent (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). Agent shall be entitled to the Referral Fee as long as a Customer continues to pay Voyant for services under the initial contract or for a maximum of six months upon termination; provided, however, Agent shall cease to be entitled to any Referral Fees due to it as of the date of termination if this Agreement is terminated by Voyant 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 Agent. In no event shall the above referenced list include any parties that were not identified to Voyant by Agent as Potential Customers in writing prior to giving the termination notice.
4.1 It is understood that Agent is acting as a finder only and shall have no authority to enter into any agreements, obligations or commitments on Voyant’s behalf, or to negotiate the terms of Potential Customers’ agreements with Voyant. Agent hereby agrees to indemnify, defend and hold Voyant harmless from and against any claims, actions, lawsuits, damages, awards or judgments arising out of any such agreements, obligations or commitments undertaken by Agent or the breach thereof. Agent is required to provide a minimum of one referral during each quarter.
4.2 Agent acknowledges that Voyant may enter into referral agreements or other similar arrangements with other parties and that Agent shall have no rights under such agreements or to any fees for customers referred to Voyant by others or identified by Voyant itself. During the term of this agreement and for a period of three years following termination, Agent agrees not hire or cause anyone to hire any employee or contractor of Voyant. Agent 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 Voyant customer or customer contact.
Agent and Voyant expressly intending that no employment, partnership, or joint venture relationship is created by this Agreement, hereby agree as follow: (i) neither Agent nor anyone employed by or acting for or on behalf of Agent shall ever be construed as an employee of Voyant and Voyant shall not be liable for employment taxes respecting Agent or any employee of Agent; (ii) Agent shall not make any commitment or incur any charge or expense in the name of Voyant without the prior written approval of Voyant; (iii) Agent expressly acknowledges and agrees that except to the extent expressly provided herein, neither Agent nor anyone employed by or acting on behalf of Agent shall receive or be entitled to any consideration, compensation or benefits of any kind from Voyant.
Each party shall indemnify, defend and hold the other party (and all officers, directors, employees, agents 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, agents, 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 or registered or certified United States mail, 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.
Agent acknowledges that by reason of its relationship to Voyant hereunder, it may have access to certain information and material concerning Voyant’ business, plans, customers, technology and products that are confidential and of substantial value to Voyant, which value would be impaired if such information were disclosed to third parties. Agent 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 Voyant. In the event of termination of this Agreement, there shall be no use or disclosure by Agent of any confidential information of Voyant and any materials related to Voyant shall be immediately returned to Voyant. Agent acknowledges that the provisions of this Section are reasonable and necessary for the protection of Voyant and that Voyant will be irrevocably damaged if such covenants are not specifically enforced. Accordingly, Agent agrees that, in addition to any other relief to which Voyant may be entitled in the form of actual or punitive damages, Voyant shall be entitled to seek and obtain injunctive relief from an arbitration panel or a court of competent jurisdiction for the purposes of restraining Agent from any actual or threatened breach of such provision. The terms of this Section shall survive termination of this Agreement.
Agent represents, warrants and covenants to Voyant 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 Voyant services in accordance with the terms of this Agreement violates or will violate the provisions or obligations of any other agreements to which Agent 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. Agent shall not assign this agreement without the prior written consent of Voyant.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflicts of law principles. Venue for any dispute under this Agreement shall be Minneapolis, MN
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 facsimile signatures shall be sufficient to indicate acceptance by the parties, each of which shall be original, and all of which shall constitute one and the same instrument named below.