This Authorized Referral Partner Agreement (this "Agreement”) is effective as of this ____ day of _________________, 2023 (the "Effective Date”) by and between Monscierge USA, LLC, with offices at 15121 Traditions Lake Pkwy Edmond, Oklahoma 73013 ("Monscierge”) and ______ with offices at the address ______. Each Monscierge and Referral Partner is a "Party” and together are the "Parties.”
1.1 Monscierge has developed the software products identified on Exhibit A ("Software”).
1.2 Referral Partner desires to obtain, and Monscierge has agreed to grant, the right to promote the Software in accordance with the terms of this Agreement.
Subject to Referral Partner's compliance with the terms of this Agreement, Monscierge hereby appoints Referral Partner a "Monscierge Authorized Referral Partner" and grants the the rights described in Section 3.
3.1 Use of the Monscierge products and services are subject to:
3.2 Referral Partner Status. During the Term, Referral Partner may represent that it is an authorized referral partner of the Software. Referral Partner shall not in any way misrepresent the referral partner's relationship with Monscierge, partner duties as specified in this Agreement, the features of the Software (including any technical specifications and expected benefits of use) or the origin of the Software. In particular, Referral Partner shall not represent itself as the exclusive agent or exclusive vendor of the Software nor shall Referral Partner represent itself as the developer or manufacturer of the Software.
4.1 Definition. "Confidential Information" means, with respect to a Party, all confidential, proprietary or trade secret information of such Party or of a third party that is in the possession of such Party, including discoveries, ideas, concepts, know-how, techniques, processes, procedures, designs, specifications, strategic information, proposals, requests for proposals, proposed products, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, marketing plans, customer information, employee personal information, health or financial information, authentication credentials, operations, infrastructure, networks, systems, facilities, products, rates, regulatory compliance, competitors and other technical, financial or business information, whether disclosed in writing, orally, or visually, in tangible or intangible form, including in electronic mail or by other electronic communication. The contents of this Agreement and Monscierge's other agreements with its resellers shall be deemed Confidential Information of Monscierge.
4.2 Obligations. A Party (the "Receiving Party”) receiving Confidential Information of the other Party (the "Disclosing Party”) shall not use such Confidential Information except as permitted herein, shall protect Confidential Information with the same degree of care with which it protects its own Confidential Information and shall not disclose Confidential Information to any third party except for parties with a need to know such information in order for the Receiving Party to perform its obligations or exercise its rights in connection with this Agreement and who are subject to an obligation to protect the confidentiality of such Confidential Information.
4.3 Exceptions. The Receiving Party is not obligated Under Section 5 regarding information that (a) is generally known or readily ascertainable by proper means by the public other than through a breach of this Agreement by the Receiving Party; (b) is known by the Receiving Party prior to the date of receipt; (c) is received by the Receiving Party from a third party not subject to confidentiality obligations; (d) is independently developed by the Receiving Party as evidenced by the Receiving Party's written records, and without any direct or indirect use of or access to the Disclosing Party's Confidential Information; or (e) is required by applicable Laws to be disclosed. If the Receiving Party is required to provide or disclose the Disclosing Party's Confidential Information to any court or government agency pursuant to a written court order, subpoena, regulatory demand, National Labor Relations Act request or other process of law, then, unless prohibited by applicable law, the Receiving Party must give prompt written notice to the Disclosing Party of the required disclosure and reasonably cooperate with the Disclosing Party's efforts to limit such disclosure or otherwise obtain confidential treatment of such disclosure. The Receiving Party's obligations set forth herein shall remain in effect, including after the expiration or termination of this Agreement, until such time as the Confidential Information qualifies for one of the exceptions set forth in (a) through (e) above.
4.4 Replacement of Previous Nondisclosure Agreements. From and after the Effective Date, the Parties shall treat any information previously disclosed under any other confidentiality or nondisclosure agreement executed by the Parties in accordance with this Section 4 and such other agreement shall be of no further force or effect.
5.1 Assignment. Neither Party may assign or otherwise transfer this Agreement (or any interest herein) without the other Party's prior written consent; any attempt to do so will be void. Notwithstanding the foregoing, upon written notice to the Reseller, Monscierge may assign or otherwise transfer this Agreement to a Monscierge affiliate or subsidiary or a successor entity pursuant to a merger, consolidation or other reorganization or as part of the sale of all or substantially all of the assets or equity interests of Monscierge.
5.2 Non-solicitation. During the Term and for twelve (12) months thereafter, neither Party may solicit for employment or engagement as an independent contractor, or employ or engage as an independent contractor, any person who is or was an employee or contractor of the other Party during the twelve (12) month period prior to any such actions, without the prior written consent of such other Party.
5.3 No Waiver. No failure on the part of either Party to exercise and no delay in exercising any right, power, or privilege will operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. 5.4 Parties in Interest. All the terms, provisions and conditions of this Agreement will be to the benefit of and will be enforceable by the Parties hereto and their respective successors.
5.5 Entire Agreement; Amendments. The Parties agree that: (a) this Agreement contains the entire understanding of the Parties hereto in respect to the subject matter hereof; (b) there are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein; (c) this Agreement supersedes all prior agreements and understandings between the Parties with respect to such subject matter; and (d) this Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party that expressly states the sections of this Agreement to be modified; no other act, usage or custom shall be deemed to amend or modify this Agreement. Each Party hereby waives any right it may have to claim that this Agreement was subsequently modified other than in accordance with this Section 15.5. In the event of any inconsistency between the statements in the body of this Agreement and the related Exhibits or an End User Agreement, the statements in the body of this Agreement shall control.
5.6 Nature of Relationship. Referral Partner is a limited agent of Monscierge for the exclusive and express purpose of executing the Referral Agreement. Referral Partner has no power or authority to accept offers or enter into or execute any contract on behalf of Monscierge. This Agreement will not be construed to constitute Referral Partner or any of its employees or agents as an agent, employee, partner or joint venturer of Monscierge or to create any relationship between the Parties other than is expressly provided herein.
5.7 Notices. All notices, requests, demands, and other communications hereunder by either Party must be in writing and shall be deemed to have been duly given if (i) delivered by hand (and duly receipted); (ii) mailed, certified or registered mail, return receipt requested; (it) sent by internationally recognized overnight courier, or (iv) entailed, with documented verification of receipt; in each case to the people and addresses set forth in this Agreement or on Exhibit D, or to such other person or address as a Party may furnish or designate to the other Party in writing in accordance herewith. Notice given by mail, overnight courier, or email will be deemed to have been given upon the date shown on the receipt showing delivery to the recipient.
5.8 Governing Law. This Agreement will be governed and construed and enforced in accordance with the internal laws of the State of Oklahoma and the United States of America. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
5.9 Legal Expenses. If either Party takes legal action to enforce its rights under this Agreement, all costs and expenses incurred by the prevailing Party (including reasonable attorney fees and court costs) will be paid by the other Party.
5.10 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, unenforceable or in conflict with applicable Laws, the validity of the remaining portions or provisions will remain in full force and effect.
5.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument. Any signature page delivered by confirmed facsimile or electronic image transmission (including in the form of a PDF file) are binding to the same extent as an original signature page.
5.12 Third-Party Beneficiaries. Referral Partner agrees that the Referral PartnerIndemnified Parties and the Monscierge Indemnified Parties are third-party beneficiaries to this Agreement and may enforce their respective rights under Section 5. No other party, as described in the Terms of Service, will be deemed a third-party beneficiary hereunder.
5.13 Compliance with Laws. Referral Partner shall comply with all applicable Laws , including those relating to this Agreement and to the testing, production, importation, packaging, labeling, use, sale, sublicensing or other distribution of the Software, or otherwise applicable to Reseller's activities hereunder. Referral Partner understands and acknowledges that the transfer of certain commodities and technical data, including the transfer of products made with the use of technical data, is subject to U.S. laws and regulations controlling the export of such commodities and technical data, including all Export Administration Regulations of the U.S. Department of Commerce ("Export Laws”). Referral Partner understands that computer software is included in the definition of technical data. Export Laws prohibit or require a license for the export of certain types of products and technical data to certain specified countries, individuals and/or organizations. Referral Partner shall comply with all U.S. Laws controlling the export of commodities and technical data and to be solely responsible for any violation of such U.S. Laws and regulations by Referral Partneror its End Users.
5.14 Construction.
SOFTWARE AND FEES