Referral Partner Agreement

This Referral Partner Agreement (the “Agreement”) is a legal agreement between you (“Referral Partner”) and Modus Create LLC (“Modus”),  a company established under the laws of Delaware, having its registered office at 1200 Sunset Hills Road, Suite, 150, Reston, VA 20190 USA,  (“Modus”), herein being collectively referred to as the “Parties.”  BY SUBMITTING A FORM ON THE “REFER A CLIENT” PAGE, YOU AGREE TO AND ARE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. THIS AGREEMENT INCLUDES THE TERMS AND CONDITIONS BELOW AND ANY DOCUMENTS OR MATERIALS REFERENCED HEREIN. This Agreement shall be effective as of the date of such form submission(“Effective Date”). 

  1.  Subject matter.  Referral Partner may submit leads for professional services to potential new clients (each a “Prospective Client”) to Modus for the purpose of assisting Modus to win new business. 
  2.  Referral  Process.  Referral Partner shall submit sale leads to Modus for each Prospective Client through the online form on the “Refer a Client” webpage. Referral Partner shall complete all required fields as specified on such online form and go through the required process. Modus shall notify Referral Partner, via email, if a lead has been “accepted” within five (5) business days of submission of the form. Modus may reject any sale lead for any reason at its sole discretion. For the avoidance of any doubt, if the Prospective Client is already in the Modus pipeline or a client of Modus, no Referral Fee will be paid. In order for Referral Partner to receive a Referral Fee, Modus and Prospective Client must enter into a valid and binding professional services agreement within ninety (90) days of Modus’s email notification to Referral Partner of its acceptance of the Prospective Client sales lead.  
  3.  Referral Fees and Payment. Modus shall pay to Referral Partner the following Referral Fees, 10% of the amounts Collected (inclusive of all taxes) of the first twelve (12) months’ gross contract value (measured exclusive of GST and all other sales or use taxes) received by Modus for the professional services, or if the period mentioned above is less than twelve (12) months, Modus shall pay to Referral Partner 10% of the amounts Collected (inclusive all taxes) of those months’ gross contract value (measured exclusive of GST and all other sales or use taxes) received by Modus for the professional services. To avoid doubt, the payment for the Referral Fees will be made only for work executed and paid by the Prospective Client. After the first 12 months, no additional Referral Fees shall be owed to Referral Partner. 

The Referral Fee is payable no later than thirty (30) days after the date on which Modus receives payment from the Prospective Client in connection with the professional services rendered.

Referral Partner shall be solely responsible for any and all taxes imposed or incurred in connection with any Referral Fees.

  1. Unauthorized Representations and Non-exclusivity.  Referral Partner shall not participate in any sales, meetings, or negotiations, nor have the authority to bind Modus to any commitments to a Prospective Client and shall refrain from making any representations, warranties, or guarantees to Prospective Clients with respect to the capabilities of Modus’s professional services that are deceptive, misleading or otherwise inconsistent with Modus’s business operations.  Referral Partner shall not engage in any conduct which may damage Modus’s reputation. This Agreement is non-exclusive and neither party is prohibited from entering into a similar Agreement with a third party. Furthermore, the Parties understand and agree that Modus has the right to solicit Prospective Clients directly and to appoint any number of additional representatives or agents to provide leads to Modus.
  2. Representations and Warranties; Disclaimer.  Each Party represents and warrants that in its performance of any obligations or services contemplated under this Agreement that such Party shall comply with all applicable laws, rules, and regulations. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OTHER THAN THE FOREGOING, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY OR TO ANY PERSON OR ENTITY WITH RESPECT TO MODUS’S PROFESSIONAL SERVICES OFFERING OR OTHERWISE, AND EACH PARTY HEREBY  DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF SATISFACTORY QUALITY AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.  
  3.  Limitation of Liability. EXCEPT FOR REFERRAL PARTNER’S BREACH OF SECTION 4 (“UNAUTHORIZED REPRESENTATIONS”) OR SECTION 8 (“COMPLIANCE”), (i) NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF THE BREACH OF THE AGREEMENT, TORD (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT WILL MODUS TOTAL, AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED $10,000 USD.
  4. Term and Termination.  The term of this Agreement shall begin on the Effective Date and shall continue until terminated in accordance with the terms of this Section 7.  Either Party may terminate this Agreement for its convenience at any time by providing the other Party with thirty (30) days written notice of termination (email will suffice).  Sections 2, 3, 6, 7, 8, and 9 shall survive the termination of this Agreement.  Any referrals received and accepted by Modus prior to the effective date of termination shall be honored and payment made pursuant to the terms of this Agreement. 
  5. Compliance.  Referral Partner shall comply with the U.S. Foreign Corrupt Practices Act (FCPA), the U.K. Bribery Act, and other similar laws of other countries, to the extent applicable.  Referral Partner hereby represents and warrants that, in its performance under this Agreement, Referral Partner has not, and will not at any time, directly or indirectly (through a subcontractor or other third party), pay, offer, give, or promise to pay or give, or authorize the payment of, money or any other thing of value to influence the decision of the Prospective Client. Referral Partner shall promptly inform Modus in writing upon becoming aware of any violations of laws in connection with this Agreement.  Referral Partner hereby acknowledges and agrees that any violation by Referral Partner of this Section will constitute a material breach of this Agreement.  In the event of such a violation, Modus will have the right to terminate this Agreement, and stop any and all payments remaining, without any liability whatsoever to Referral Partner, immediately upon providing written notice of termination to Referral Partner.  Termination of this Agreement by Modus under this section shall be in addition to, and not in lieu of, Modus’s other legal rights and remedies.

In case the Referral Partner would work for one of the Prospective Clients, Modus shall not pay any referral fees, as provided in Section 3 as it could be construed as a kickback.

  1. General Provisions.  

9.1 Independent Contractors

The Parties are independent contractors and this Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between the Parties for any purpose. 

9.2 Applicable legislation 

This Agreement was entered into in Reston, Virginia, and will be governed by and construed in accordance with the laws of the State of Virginia, excluding its conflicts of law rules and the U.N. Convention on the International Sale of Goods. The Parties agree that any and all disputes arising out of or in any way relating to this Agreement shall be resolved according to Virginia law. 

Notwithstanding the foregoing, in the event of a breach or alleged breach of Section 7 (“Confidential Information”) of this Agreement, Modus shall be entitled to seek injunctive relief in a state or federal court located in Virginia. The Parties further agree that the prevailing Party in any action or proceeding to enforce any right or provisions under this Agreement will be entitled to recover its costs and attorneys’ fees, whether by in-house legal staff or outside counsel.  No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.  

9.3 Severability

If one or more provisions of this Agreement are held to be unenforceable under applicable law, the Parties agree to renegotiate such provision in good faith.  In the event that the Parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded, and (iii) the balance of the Agreement shall be enforceable in accordance with its terms. 

9.4 Notices

All notices, requests, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or email of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.

Notices to Modus shall be addressed to contact@moduscreate.com.  Notices to Referral Partner shall be addressed to Referral Partner’s signatory of this Agreement. 

9.5 Entire Agreement 

This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

9.6 Amendments

 This Agreement may not be amended, waived, or modified except as expressly provided herein or in writing by the Parties. Neither Party shall assign any of its rights, or delegate any of its obligations, under this Agreement, without the prior written consent of the other Party.  Notwithstanding the preceding, either Party may assign this Agreement in its entirety without the consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors, and permitted assigns. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.