This Kustom360 Referral Agreement (“Agreement”) is entered into by and between Mobilemo, Inc., a corporation duly organized and existing under the laws of the Philippines, with its principal office at 15th Floor Pacific Star Bldg., Sen. Gil Puyat Ave. cor. Makati Ave., 1200 Makati City, Philippines (“Kustom360”), and ____________________, a natural or juridical person whose details are set out in Annex A, with principal office/residence at ____________________________________________ (“Referral Agent”). Kustom360 and Referral Agent may each be referred to as a “Party” and together the “Parties” in this Agreement.
1. Purpose. This Agreement contains the terms and conditions in which Referral Agent may refer Leads or prospective Customers to Kustom360 for the purpose of subscribing to Kustom360’s Service and be compensated by way of commission upon such subscription and payment.
2. Definitions. The following definitions shall apply:
2.1 “Customers” shall mean all customers that subscribe to Kustom360’s Service.
2.2. “Leads” shall mean Referral Agent’s prospective Customers in the Territory referred to Kustom360 for the purpose of subscribing to the Service for which Referral Agent may be compensated by way of commission upon such subscription and payment.
2.3. “Other and Existing Accounts” shall mean potential and current Customers so designated by Kustom360 that are not available as Leads for referral in this Agreement.
2.4. “Qualifying Leads” shall mean all Leads accepted by Kustom360 for subscription and for which Referral Agent will be compensated by way of commission upon payment in accordance with this Agreement.
2.5. “Service” shall mean Kustom360’s service products – mobile application, web application, and website – that are available for subscription by Customers.
2.6. “Territory” shall mean the geographic area defined in Annex A of this Agreement.
3. Representations and Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. Referral Agent further represents and warrants that no false identity or false information has been or will be given to Kustom360.
4. Non-Exclusive Appointment. Kustom360 appoints Referral Agent, and Referral Agent accepts the appointment, as a non-exclusive Referral Agent of Kustom360 for the Service in the Territory. Kustom360 reserves the right to appoint other referral agents and distributors for the Service inside and outside the Territory.
5. Duties of Referral Agent.
5.1. Assigned Task. Refferal Agent’s assigned task under this Agreement is to provide Leads to Kustom360 in the Territory, which excludes Other and Existing Accounts.
5.2. Promotion. Referral Agent will use best efforts to promote the Service to Leads by providing information and description of the Service in accordance with this Agreement. All materials and advertisements for promotion by Referral Agent must receive Kustom360’s prior approval.
5.3. Inquiries and Subscriptions. Referral Agent will send promptly to Kustom360 any proposed inquiry or subscription from Leads. Referral Agent will submit in writing the name, contact details, and other relevant information of each Lead. Kustom360 may request Referral Agent to arrange a meeting or conference with any Lead. Referral Agent will follow such subscription processing rules and procedures as Kustom360 may specify, including procedures relating to written and electronic (online) referral processing.
5.4. Validity of Referral. Any Lead submitted by Referral Agent to Kustom360 that has not been subscribed to the Service for any reason whatsoever within ninety (90) days from referral shall be dropped as Referral Agent’s Lead in this Agreement, unless otherwise agreed by the Parties.
5.5. Reports and Visits. Referral Agent will give written and oral reports to Kustom360 as to its activities in such form and in such frequency as Kustom360 may reasonably require.
5.6. Limits of Responsibility. For clarification, Referral Agent will have no obligation or function under this Agreement other than referring Leads for subscription to the Service of Kustom360. Upon subscription, delivery, installation, any customization, maintenance, and support of the Service will be subject to Kustom360’s sole control.
5.7. Limits of Authority. For clarification, Referral Agent will have no authority to make any representation or warranty, commitment or agreement, or incur any obligation or liability whatsoever on behalf of Kustom360. Neither shall Kustom360 be liable for any act, including any transaction, or omission of Referral Agent.
6. Other and Existing Accounts. Referral Agent shall not be entitled to any compensation for subscription to Other and Existing Accounts. To avoid any doubt, Referral Agent may at any time inquire in writing with Kustom360 whether or not a prospective Customer may be qualified as a Lead or designated by Kustom360 as part of Other and Existing Accounts not available for referral under this Agreement.
7. Confidentiality and Intellectual Property Matters.
7.1. Confidential Information. Referral Agent acknowledges that during the course of this Agreement, it may learn non-public information regarding Kustom360’s products, customer, pricing, technology, and other non-public information of Kustom360 (“Confidential Information”).
7.2. Confidentiality Obligation. Except with Kustom360’s prior written authorization, Referral Agent shall not disclose Confidential Information and shall not use Confidential Information other than for the purpose of this Agreement. Referral Agent shall take all necessary steps to assure that its employees/affiliates comply with this obligation regarding confidentiality.
7.3. Works and Inventions. All copyrightable works (“Works”) relating to or arising from Referral Agent’s services under this Agreement shall belong to Kustom360, shall be considered “work for hire” that becomes Kustom360’s property upon creation, and to the extent not deemed “work for hire” are hereby assigned to Kustom360. Referral Agent also hereby assigns to Kustom360 all patents, inventions, improvements, trade secrets, or developments (“Inventions”) conceived by Referral Agent, solely or jointly, relating to the Service of Kustom360, or to Kustom360’s business from their moment of creation. Upon Kustom360’s direction, Referral Agent will execute all papers that Kustom360 may deem appropriate to assign, register, protect, or confirm Kustom360’s rights in Works and Inventions, including, without limitation, as required for copyright, patent, or other legal assignment or registration.
7.4. Trademarks. Referral Agent shall recognize at all times Kustom360’s exclusive ownership of Kustom360’s trademarks, service marks, logos, domain names, and trade names (“Marks”). Unless otherwise agreed by the Parties in writing, Referral Agent shall use the Marks only for purposes of advertisement, promotion, and subscription of the Service and for no other purposes. Referral Agent shall use Marks solely in accordance with the written guidelines established by Kustom360 from time to time. Referral Agent shall not hold itself out as or create the impression or suggestion that it is the author, creator, manufacturer, or source of the Service. All goodwill arising from use of the Marks shall belong to Kustom360. Referral Agent shall not register the Marks or any confusingly similar marks.
8. Promotional Aids. Kustom360 will supply Referral Agent with such Service literature and aids it believes will reasonably assist Referral Agent in promoting the Service.
9. Product Changes. Kustom360 shall have right to change and discontinue any of the Service at any time.
10. Prices. Referral Agent shall quote only from Kustom360’s current price list as it may be in place from time to time. Referral Agent shall have no right to vary pricing or Kustom360’s Terms of Service. Kustom360 may make changes or adjustments to its price list at any time. Special quotations, including but not limited to “off list” pricing for large volumes or customized products, may be granted by Kustom360 from time to time in Kustom360’s sole discretion.
11. Acceptance of Subscriptions.
11.1. In its sole discretion, Kustom360 may accept or reject subscriptions from prospective Customers, including any Lead referred by Referral Agent. No subscription shall be binding until accepted by Kustom360. Referral Agent does not have authority to accept subscriptions or otherwise bind Kustom360.
11.3. Referral Agent shall follow such referral and subscription procedures as Kustom360 may specify.
12. Referral Agent’s Compensation.
12.1. Referral Fee. Kustom360 will pay to Referral Agent the commission stated in Schedule A based on Qualifying Leads in the Territory or subscriptions accepted by Kustom360 in accordance with this Agreement. Kustom360’s obligation to pay a commission shall apply only when Referral Agent, in Kustom360’s judgment, is the effective cause of the subscription. Commissions are conditioned upon such Qualifying Lead’s payment of the invoiced subscription fee for the Service.
12.2. Disqualifications. Notwithstanding, no commission shall be paid if Referral Agent provides to Kustom360 any incorrect or misleading information about a Lead; if Referral Agent is affiliated with a Lead as an employee, partner, or agent; if a Lead is either a current or previous Customer of Kustom360, Mobilemo, Inc., its affiliates, other referral agents or distributors; if a Lead is acquired through illegal means or through kickbacks or bribes; and if Kustom360, Mobilemo, Inc., its affiliates, other referral agents or distributors have had substantive contact with a Lead prior to Referral Agent’s referral or submission.
12.3. Time of Payment. Commissions are due and payable to Referral Agent on or before the thirtieth (30th) day of the month following the month in which Kustom360 receives payment of its invoice to the Qualifying Lead.
12.4. Methods of Correction. In case that, due to adjustment, return, delinquent payment, default, mistake or otherwise, Kustom360 has paid Referral Agent more than the commission that was due, Kustom360, in its discretion, may recover such amount by deductions from Referral Agent’s current or future commissions, or by requiring Referral Agent to repay such amount ten (10) days from demand.
12.5. Multiple Commissions. Where Kustom360 deems more than one referral agent or distributor is responsible for a subscription transaction with a Qualifying Lead or in case of transactions that are both inside and outside the Territory, Kustom360 may award the commission to one referral agent or distributor, or divide commissions among referral agents and other distributors. Only Kustom360 will decide if Referral Agent is entitled to a portion of a commission and the amount of such portion. If Referral Agent disagrees with Kustom360, Referral Agent will send, within ten (10) days after Kustom360’s decision, written reasons for its disagreement. Kustom360 shall review such reasons and notify Referral Agent of the conclusion, which shall be final and binding on the Parties.
12.6. No Other Payments. Except as provided in this Agreement, Referral Agent shall not be entitled to any other payments by Kustom360.
12.7. Expenses. The Parties shall bear their own respective expenses in this Agreement with no right to reimbursement.
13. Injunctive Relief. Referral Agent agrees that in case of Referral Agent’s breach of provisions regarding Confidential Information, Works, Inventions, or Marks, Kustom360 will suffer immediate and irreparable injury. In such a case, Referral Agent agrees that, in addition to any other remedies that may apply, the Court shall require Referral Agent’s strict compliance with this Agreement, and Kustom360 shall be entitled to preliminary and final injunctive relief to enforce this Agreement.
14. Term and Termination. This Agreement shall have a term of one (1) year and shall terminate upon the first anniversary of its date unless extended by written mutual agreement of the Parties; provided, however, that either Party may elect to terminate this Agreement during its term and with or without cause by giving the other Party not less than thirty (30) days’ prior written notice of its election to so terminate this Agreement.
15. Effect of Termination. The following terms and conditions shall apply upon termination of this Agreement:
15.1. Termination shall not affect any debt, claim, or cause of action that has accrued to the benefit of either Party against the other before termination.
15.2. Referral Agent shall earn commissions earned on subscriptions booked before termination if within ten (10) days after termination Referral Agent sends to Kustom360 a list of valid Leads, provided that such subscriptions are subsequently made and paid for in accordance with this Agreement.
15.3. Within fifteen (15) days of termination, all written technical and business material furnished to Referral Agent by Kustom360 shall be returned, and all property of Kustom360 shall be turned over to it.
15.4. Referral Agent will no longer use Kustom360’s Marks and Referral Agent will not adopt or use any trademark, service mark, trade name or brand that reasonably could be confusingly similar to names used by Kustom360.
15.5. Sections 7, 13, 15, and 16 shall survive the termination of this Agreement.
16. Miscellaneous Provisions.
16.1. Reputation of Kustom360. Referral Agent shall at all times act professionally and in a manner that enhances the reputation of Kustom360 and the Service.
16.2. Force Majeure. Neither Party shall be liable for loss or damage, failures or delays because of causes beyond its reasonable control, such as but not limited to strikes, lockouts, or labor disputes, fires, acts of God or public enemy, riots, incendiaries, interference by civil or military authorities, compliance with the law, orders, or policies of any governmental authority, delays in transportation or communications or failures of sources of raw materials or production facilities.
16.3. Entire Agreement. This is the entire agreement of the Parties and supersedes any earlier representation, discussion, promise, or agreement regarding this subject matter.
16.4. Relationship of the Parties. Referral Agent is an independent contractor and not an employee of Kustom360. Referral Agent shall not commit Kustom360 to any obligation.
16.5. Damage Limitation. Other than Kustom360’s claims for Referral Agent’s breach of provisions regarding Confidential Information, Works, Inventions, and Marks, neither Party shall be liable to the other for any indirect, incidental or consequential damages, including but not limited to, loss of profits, loss of business opportunities or loss of business investment.
16.6. Legal Compliance.
16.6.1. Referral Agent shall comply with all laws, rules and regulations issued by any governmental entity having jurisdiction over it.
16.6.2. Referral Agent shall take no steps and have no understanding, written or verbal, to encourage, arrange, pay or receive any payment or consideration: (a) which involves any illegal purpose, or (b) which, whether legal or illegal, involves government officials or employees, political candidates or parties or (c) which consists of kickbacks or
16.6.3. Documentation of all business transactions shall properly describe the pertinent events and such records must not be false, distorted, or misleading. No undisclosed or unrecorded fund or asset shall be established for any purpose.
16.7. Assignment. Referral Agent shall not assign this Agreement. Referral Agent shall not appoint subagents or otherwise delegate its duties. Any such assignment, appointment, or delegation shall be void.
16.8. Notice. Notices to either Party shall be in writing and will be deemed received upon receipt by registered mail with postage paid to the addresses set forth in this Agreement, or when received by electronic mail or facsimile, or when delivered personally. Either Party may change its address by giving notice to the other Party in accordance with this Section.
16.9. Changes in Writing. Any change to this Agreement shall not be binding unless approved in writing by persons authorized by the Parties.
16.10. No Waiver. Failing to perform a term or a condition, or waiving breach thereof, shall not prevent a subsequent enforcement of such term or condition nor be a waiver of any subsequent breach.
16.11. Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the Philippines. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof must be filed within one (1) year. Otherwise, any such dispute will be permanently barred. Any such dispute will first be referred to senior management for resolution. If senior management is unable to resolve any such dispute, it will then be referred to the Philippine Dispute Resolution Center, Inc. (“PDRCI”) for mediation. If mediation fails, then any such dispute will finally be settled by arbitration in the Philippines in accordance with the PDRCI Arbitration Rules as at present in force. Should interim judicial relief be necessary in connection with this Agreement, the Parties may seek appropriate relief before the courts of Makati City, Philippines to the exclusion of other venues. To the extent permissible, any dispute resolution in this Agreement may be conducted in person, through the submission of documents, by phone, or online.
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