This Moxtra Referral Agreement (“Agreement”) is entered into by and between Moxtra, Inc., dba Moxo, having its principal place of business at 1601 S. De Anza Blvd., Suite 158, Cupertino, CA 95014 USA (“Moxo”), and the Company who signs up on-line for the Moxo Referral Program (“Company”). The Agreement is effective on the date Company signs up for the Moxo Referral Program and agrees to be bound by this Agreement. Company and Moxo are referred to herein individually as a “Party” and collectively as the “Parties”.
WHEREAS, Moxo offers a customer-branded front office, which includes a customer-branded mobile app for communicating and conducting business with clients;
WHEREAS, Company desires to refer customers to Moxo and be compensated for such referrals;
NOW, THEREFORE, in consideration of the promises, agreements, representations, covenants and warranties herein contained, the Parties agree as follows.
1. Definitions.
(a) “Affiliate” means any legal entity worldwide in which a Party, directly or indirectly, owns more than fifty percent (50%) of the stock, shares, membership or other indicia of ownership, entitled to vote for the board of directors or other governing body of such entity.
(b) “Customer” shall mean a third party that is referred by Company to Moxo with the use of PartnerStack’s Leads Submission Module, provided (a) Company fills out the lead form and it is accepted by Moxo, and (b) within twelve (12) months after acceptance by Moxo of such referral such third party enters into a Customer Agreement with Moxo. A Customer may include either a third party using Moxo internally or reselling Moxo to other end users, either by itself or in combination with other products and services.
(c) “Customer Agreement” shall mean the agreement between a Customer and Moxo pursuant to which the Customer obtains the Service.
(d) “Intellectual Property Rights” shall mean all rights in and to trade secrets, patents, copyrights, trademarks, know-how, as well as moral rights and similar rights of any type under the laws of any governmental authority, domestic or foreign.
(e) “Marks” shall mean the Moxo logo and “Moxo”.
(f)“PartnerStack’s Lead Submission Module” means the online web form PartnerStack creates for use by Company to submit leads to Moxo.
(g) “Referral Fees” means the referral fees described in Exhibit B.
(h) “Service” shall mean the Moxo Service, as more fully described in Exhibit A.
2. Training and Materials
(a) Training and Materials. Moxo will provide training and materials to the sales personnel of the Company to familiarize them with the Service and enable them to identify prospective Customers, including copies of materials to provide to prospective Customers.
(b) Identifying Prospective Customers. Company will provide information and materials to each prospective Customer regarding the Service and will determine whether the prospective Customer has a serious interest in procuring the Service. If the prospective Customer has such an interest, Company will provide the PartnerStack unique referral URL to prospective Customer and they will submit a demo request with said URL.
(c) Non-exclusive Relationship. Company acknowledges that the relationship set forth in this Agreement is non-exclusive and that Moxo is free to enter into other referral and resale arrangements without notice or compensation to Company.
3. Provision of Services. Moxo will be solely responsible for installing, configuring, testing, hosting, managing, maintaining, supporting and providing the Service. Moxo is responsible for all customer support and training for the Services and account management for the Customers.
4. Customer Agreement. Only Moxo may enter into a Customer Agreement for the Service. Company may not obligate Moxo to any agreements, contracts, terms, conditions, obligations or warranties.
5. Company Referral Process
(a) From time to time, Company may refer potential customers to Moxo with the use ofPartnerStack’s Lead Submission Module, provided that the Company has verified through direct contact with the potential Customer that it has a serious interest in the Service. Upon receipt of a demo request with the use of said URL, Moxo will review such referral and determine whether or not to accept the demo request and notify Company of its decision. If the demo request is accepted, Moxo will start the sales cycle. If Moxo decides not to accept the demo request, it will not use any information contained in the demo request to solicit the potential customer identified therein, but may still solicit such potential customer based on other information obtained by Moxo independently of this Agreement and may enter into an agreement to provide the Service to such potential customer. In such event, such potential customer will not be deemed a “Customer” for purposes of calculating and paying Referral Fees. Moxo may reject a referral demo request in its sole discretion for any reason, including the following: (i) the potential Customer is already a Moxo customer; (ii) the potential Customer has already been referred by another source; (iii) Moxo had engaged in sales activity with the potential Customer within the previous six months; (iv) Moxo concludes that it is unlikely to succeed in selling the Service to the potential Customer; (v) Moxo reasonably believes that the potential Customer is a credit risk; or (vi) Moxo reasonably believes that Customer’s use of the Service may be unlawful, unethical, could damage Moxo's reputation, or might otherwise violate Moxo's terms of service.
(b) If the third party identified in a referral demo request does not, within twelve (12) months after acceptance by Moxo of such referral demo request, enter into a Customer Agreement with Moxo, the potential customer will not be deemed a Customer.
(c) Company: (a) will not perform any marketing activities for the Marks or Service, in the following channels used by Moxo: (i) Google AdWords (ii) Facebook (iii) YouTube ads, and any other channel used by Moxo, as updated by Moxo, from time to time; (b) shall not use, procure, bid on, or otherwise arrange for a Sponsored Link (as defined below) which uses or includes any of the Marks; and (c) shall not register, procure, or use any internet domain name that includes any of the Marks or any variations thereof. “Sponsored Link” means a link offered, created, or displayed for a fee (whether on a “cost-per-click” basis, commission, or any other commercial arrangement) by any internet search engine, portal, sponsored advertising service or other search or other referral service which uses search terms or key words to identify, draw attention to, or direct internet traffic to an internet site.
6. Referral Fees
Moxo agrees to remit payment for the Referral Fees, as delineated in Exhibit B, within 90 days of Moxo entering into a relevant Customer Agreement through PartnerStack. Company may initiate the commission withdrawal process from PartnerStack on the upcoming withdrawal date via PayPal, Stripe , or DirectDeposit (For more information, please refer to: here).
If the referred Customer terminates the CustomerAgreement with Moxo before Moxo collects at least 2 months’ service fees from the Customer, Moxo will not be obligated to pay any Referral Fee to Company for such Customer.
For Customers that pay the Customer Agreement monthly, Moxo may pay the Referral Partner their commission in up to 3 installments.
7. Independent Contractor Status. The Parties are independent contracting parties and nothing in this Agreement shall be deemed to establish or otherwise to create a relationship of principal and agent, partners, fiduciaries, or joint venturers. Neither Party will be deemed an agent of the other Party for any purpose whatsoever and neither Party nor any of its agents or employees will have any right or authority to assume or create any obligation of any kind, whether express or implied, on behalf of the other Party. This Agreement is not a franchise agreement and does not create a franchise relationship between the Parties and if any provision of this Agreement is deemed to create a franchise between the Parties, then those provisions shall be deemed void and will automatically terminate as if such provision had been deemed unenforceable by a court.
8. Changes to Service. Moxo may, in its sole discretion and at any time, modify or change the Service and the software that enables the Service. Moxo will use commercially reasonable efforts to provide at least thirty (30) days prior written notice to Company of any change that materially affects the functionality of the Service.
9. Confidentiality. Each party (the “Receiving Party”) agrees it shall not during the term of this Agreement and for five (5) years thereafter, directly or indirectly, use or disclose to others any Confidential Information obtained from the other party (the “Disclosing Party”) without the Disclosing Party’s prior written consent. As used herein, “Confidential Information” shall mean any information, whether written or oral, regarding this Agreement, and the Service, technology, research, development, pricing, business plans and activities, employees, existing and prospective customers, and finances of either Party; provided, however, that Confidential Information shall not include any information that: (i) was publicly available at the time it was received by the Receiving Party, (ii) is later made publicly available by the Disclosing Party through no fault of the Receiving Party,(iii) was acquired by the Receiving Party from a third party who was under no legal duty to maintain the confidentiality of the information, or (iv) is independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information compelled by subpoena or other legal process, provided the Receiving Party provides prompt written notice to the Disclosing Party and cooperates in seeking confidential treatment for the information. Upon termination, the Receiving Party will return all the Disclosing Party’s Confidential Information.
10. Representations and Warranties.
(a) Warranty Disclaimers. Except for the express warranties set forth in Section 10(b), the Parties expressly disclaim all warranties of any kind, whether express, implied, statutory, or otherwise, including without limitation any warranty of merchantability, title, performance, quality, non infringement, fitness for a particular purpose, or accuracy of informational content. Moxo makes no warranty or representation regarding the Service or that the Services will meet Company’s or Customers’ requirements, or be uninterrupted, timely, secure or free from error or defect. Warranties, if any, from Moxo to Customers will be contained in the Customer Agreements.
(b) Each Party represents and warrants solely to and for the benefit of the other that: (i) it has the right and power to enter into and fully perform the obligations it has undertaken in this Agreement; and (ii) it is not under any obligations, contractual or otherwise, to any other entity that is inconsistent with any of the provisions of this Agreement.
11. Limitation of Liability. to the extent permitted by applicable law, under no circumstances will either Party be liable to the other under this Agreement for any consequential, special, indirect, incidental or punitive damages of any kind, including, but not limited to, lost profits, lost data, business interruption, loss of business reputation or goodwill, or the cost of procurement of substitute goods or services, even if the Party has been advised of the possibility of such damages. In no event will Moxo’s cumulative, aggregate liability under this Agreement exceed the referral fees due to Company in the previous 12 months.
12. Indemnification.
(a) By Moxo. Subject to Section 12(c), Moxo, at its own expense, will defend Company and its Affiliates (and each of their officers, directors, employees, and representatives) against any action, suit, or proceeding brought by a third party against Company or its Affiliates based on a claim that the Service: (i) infringes in any manner any Intellectual Property Right of any third party, or (ii) violate any law or regulation (each, a “Moxo Covered Claim”). Moxo will pay any and all costs and damages (including reasonable attorneys’ fees) awarded against Company or its Affiliates in connection with or arising from, or any and all amounts agreed to in settlement of, any such Moxo Covered Claim. Moxo will have no indemnification obligation hereunder for any infringement claim to the extent the infringement arose from: (1) any modification (including alterations, additions or changes) to the Service other than by Moxo, (2) the combination of the Service with products, services or content provided other than by Moxo, or (3) Moxo's conformance with Company’s or Customers’ specifications, requests or requirements to the extent such conformance differs from the Service Moxo makes generally available.
(b) By Company. Subject to Section 12(c), Company, at its own expense, will defend Moxo and its Affiliates (and each of their officers, directors, employees, and representatives) against any action, suit, or proceeding brought by a third party against Moxo or its Affiliates based on a claim relating to: (i) any representation, statement or warranty made or alleged to have been made by Company regarding Moxo or the Service which was not expressly authorized by Moxo, or (ii) Company’s violation of any law or regulation (each, a “Company Covered Claim”). Company will pay any and all costs and damages (including reasonable attorneys’ fees) awarded against Moxo or its Affiliates in connection with or arising from, or any and all amounts agreed to in settlement of, any such Company Covered Claim.
(c) Mechanics. A “Covered Claim” means a “Company Covered Claim” with respect to Company, and a “Moxo Covered Claim” with respect to Moxo. Each indemnified Party agrees to provide prompt notice and to permit the indemnifying Party to provide the defense and settlement as described in this Section 12 and to provide reasonable assistance in that defense and settlement. The indemnifying Party may settle any Covered Claim without the indemnified Party’s prior written approval, provided such settlement imposes no affirmative obligation on, and no admission against interest on behalf of, the indemnified Party. If a settlement imposes such obligation or admission, the indemnified Party will not unreasonably reject or withhold or delay approval of the proposed settlement.
13. Term & Termination
(a) Term. The initial term of this Agreement shall commence on the Effective Date and, unless earlier terminated in accordance with Section 13(b) or (c), expire one (1) year from the Effective Date. Thereafter, the Agreement shall automatically renew for additional one (1) year renewal terms, unless either Party sends written notice of termination at least thirty (30) days prior to the commencement of the next renewal term.
(b) Termination. Each Party may immediately terminate this Agreement by giving the other written notice if the other Party:
(i) defaults in the performance of any of its obligations under any of the terms or conditions of this Agreement; or
(ii) defaults in the performance of any of its obligations under the terms and conditions which default, by its nature, cannot be remedied; or
(iii) is unable to pay any and/or all of its debts as they become due or becomes insolvent or ceases to pay any and/or all of its debts as they mature in the ordinary course of business, or makes an assignment for the benefit of its creditors; or
(iv) is liquidated or dissolved or if any proceedings are commenced by, for or against it under any bankruptcy, insolvency, reorganization of debts or debtors relief law, or law providing for the appointment of a receiver or trustee in bankruptcy.
(c) Termination for Convenience. Either party may terminate this Agreement at any time without cause upon thirty (30) days’ written notice.
(d) Surviving Obligations and Limitations. The termination or expiration of this Agreement will not operate to discharge any liability that had been incurred by either Party prior to any such termination or expiration. The termination of this Agreement will not terminate or affect any Customer Agreements entered into prior to termination of this Agreement. Upon termination of this Agreement, all licenses granted hereunder will immediately terminate. The following provisions shall survive expiration or termination of this Agreement: Sections 1, 9, 11, 12, 13 and 15 of this Agreement. In addition, Moxo will pay Company Referral Fees following any termination other than a termination by Moxo under Section 13(b) for Customers whose demo requests were accepted by Moxo prior to termination.
14. Notices.
(a) Change in Name or Address. Any notices given under this Agreement shall: (i) if to Moxo, be given to oemcontracts@Moxo.com or to V.P., Worldwide Channels, 1601 S. DeAnza Blvd. Suite 158, Cupertino, CA 95014 USA; and (ii) if to Company, be given to the email] or to physical address provided by Company to Moxo. Notice information may be subsequently changed by either Party by notice duly given under this Section 14(a).
(b) Method of Transmission. Any notices given under this Agreement shall be in writing and will be deemed to have been sufficiently given when delivered by hand, electronic mail, overnight courier service or by certified or registered mail, postage and other charges prepaid, to the Parties at the addresses above or as subsequently changed by notice duly given. The date of receipt of any notice given here under will be the date on which such notice is deemed to be given.
15. General.
(a) Assignment. Neither Party may assignor otherwise transfer this Agreement or any interest or right hereunder or delegate the performance of any of its obligations hereunder to any third party without the prior written consent of the other Party, except that either Party may assign this Agreement to an Affiliate or in connection with a merger, acquisition, consolidation, reorganization or the sale of all or substantially all of the Party’s assets. Any attempted assignment, transfer or delegation in violation of this Section 15(a) will be deemed null and void and result in the immediate termination of this Agreement without necessity of notice.
(b) Waivers. Waiver by either Party of any default, or either Party’s failure to enforce any of the terms and conditions of this Agreement, shall not in any way affect, limit or waive such Party’s right thereafter to enforce and compel strict performance of every term and condition hereof.
(c) Non-Exclusiveness; Remedies. Any specific right or remedy provided in this Agreement shall not be exclusive but will be cumulative of all other rights and remedies set forth herein and allowed in law or equity.
(d) Litigation. In the event of any litigation between the Parties with respect to this Agreement, the prevailing Party (the Party entitled to recover costs of suit at such time as all appeals have been exhausted or the time for taking such appeals has expired) shall been titled to recover reasonable attorneys’, accountants’ and experts’ fees, and costs in addition to such other relief as the court may award.
(e) Headings. The headings of Sections in this Agreement are for convenience and reference only, and they shall in no way define, limit, broaden, or otherwise describe the scope of the provisions or be considered in the interpretation, construction or enforcement hereof.
(f) Publicity. Any and all publicity relating to this Agreement and subsequent transactions between Company and Moxo and the method of its release shall be approved in advance of the release in writing by both Company and Moxo.
(g) Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of California as applied to agreements entered into and to be performed entirely within California between California residents. The Parties hereby submit to the jurisdiction of, and waive any venue objections against state and federal courts in Santa Clara County, California in any litigation arising out of the Agreement.
(h) Compliance with Laws. The Parties shall abide by all applicable laws and regulations, including but not limited to those with respect to privacy, export control and the issuance of unsolicited commercial email.
(i) Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
(j) Government Contracts. No provision required in any United States government contract or subcontract related thereto shall be deemed a part of this Agreement, or be imposed upon or binding upon either Party, and this Agreement will not be deemed an acceptance of any government provisions that may be included or referred to in any Reseller order or other purchasing document.
(k) Force Majeure. Neither Party shall be liable to the other for any delay in the performance of any of its obligations here under due to any cause beyond such Party’s reasonable control or due to acts of god, acts of civil or military authorities, fires, labor disturbances, floods, epidemics, governmental rules or regulations, war, riot, delays in transportation, shortages of raw materials, power outages, or unauthorized hacking on or through the internet.
(l) Construction and Complete Agreement. This Agreement supersedes, terminates and otherwise renders null and void any and all prior or contemporaneous written and/or oral agreements between Company and Moxo with respect to the matters herein expressly set forth herein. This Agreement represents and incorporates the entire understanding of the Parties hereto with respect to the matters herein expressly set forth and each Party acknowledges that there are no warranties, representations, covenants or understandings of any kind, nature or description whatsoever made by either Party to the other, except as are herein expressly set forth. This Agreement may be modified only be a written instrument entered into by the Parties to this Agreement (which may include online terms and conditions posted by Moxo and accepted by Company), which instrument makes specific reference to this Agreement and the changes to be made hereto.
Exhibit A: Description of the Service
The Moxo One Stop Client Interaction Hub helps includes three portals: (1) the Client Portal (2) the Business Portal and (3) the Admin Portal. The Hub enables conversational engagement between a business and their clients via a private, secure, and managed environment. Moxo is available in the below bundles found on:
https://www.moxo.com/pricing
Prices and offerings are subject to change.
Territory: Countries in which the preferred language is one for which the Moxo services are available, but excluding any country to which exporting the Moxo services would violate any applicable export control law or regulation.
Exhibit B: Referral Fees
Moxo shall pay the following Referral Fees to Company:
All partners commence as Bronze Partners, earning a 15% one-time referral commission on the initial $30,000 in the aggregate total of Annual Recurring Revenue realized by Moxo from referred Customer Agreements.
Upon the achievement of $30,000 or more in Annual Recurring Revenue from referred Customer Agreements, the Company becomes eligible for elevation to Silver Partner status. At this level, for the subsequent $70,000 in Customer Agreements they refer, Moxo will pay a 20% one-time referral commission.
Once the cumulative revenue from referred Customer Agreements by the Company surpasses $100,000 in Annual Recurring Revenue, the Company becomes eligible for advancement to Gold Partner status. At the Gold Partner level, Moxo will then pay a 25% one-time referral commission on all Customer Agreements as long as Company maintains Gold Partner status.
“Annual Recurring Revenue” means the amount of recurring subscription revenue Moxo obtains from Customer Agreements in a twelve month period. Annual Recurring Revenue does not include one time fees such as set-up fees or professional service fees which are not of a recurring nature. “One-time referral commission” means that foreach Customer Agreement Moxo will pay a commission only for the Annual Recurring Revenue Moxo obtains in the first year of the Customer Agreement.
Moxo reserves the right to accept or decline applicants at any Tier at its sole discretion.
