REFERRAL AGREEMENT
(Entity Referrer)
THIS AGREEMENT is entered into as of Date (the “Effective Date”), by and between
Cafeto Software USA LLC, a Texas limited liability company located at 405 Main Street,
Suite 700, Houston, Texas 77002 (“Cafeto”) and XXXXX located at XXXXXXXXX
(“Referrer”).
RECITALS
WHEREAS, Cafeto is a technology company providing Staff Augmentation Services and
Software Development Services (collectively, the “Services”); and
WHEREAS, Referrer desires to refer potential customers (“Referrals”) of the Services to
Cafeto in exchange for a referral fee on any revenue generated by Cafeto as a result of such
Referrals.
NOW, THEREFORE, for and in consideration of the premises and the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Referrals
There are two ways Referrer may refer customers to Cafeto:
Scenario 1 (Direct Agreement Between Cafeto and Customers for Staff
Augmentation Services): Referrer will make an introduction of Cafeto’s Staff
Augmentation Services to potential customers for the purpose of promoting the Cafeto’s
Services to such potential customers. Cafeto will meet or conference and negotiate with
potential customers after an introduction by Referrer. Cafeto will have sole discretion
whether to enter into an agreement with the potential customers introduced by Referrer.
Scenario 2 (Direct Agreement Between Cafeto and Customers for Software
Development Services): Referrer will make an introduction of Cafeto’s Software
Development Services to potential customers for the purpose of promoting the Cafeto’s
Software Development Services to such potential customers. Cafeto will meet or
conference and negotiate with potential customers after an introduction by Referrer.
Cafeto will have sole discretion whether to enter into an agreement with the potential
customers introduced by Referrer.
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Section 2. Referral Payments.
The referral fee for customers referred to by Referrer shall be based on the actual
collection of accounts receivable from the referred customers, exclusive of any taxes
collected, (the “Referral Fee”) by Cafeto or Referrer, as the case may be, as follows:
Under Scenario 1 (Direct Agreement Between Cafeto and Customers for Staffing
Services): Cafeto will pay the Referral Fee within thirty (30) days of its receipt of payments
from the referred customer as follows:
3% monthly, but only for the first project closed with the client and up to 12 months.
For example, if the first project lasts only 6 months, Referrer is entitled to
commissions during this 6-month period, and Referrer is not entitled to any
commission for the second and subsequent projects with that customer. For clarity,
no commissions are paid without Cafeto’s actual collection of fees from the client
even if, for example, the resource is terminated by the client for cause.
Under Scenario 2 (Direct Agreement Between Cafeto and Customers for Software
Development Services): Cafeto will pay the Referral Fee within thirty (30) days of its
receipt of payments from the referred customer as follows:
• 3% for the first project for each client – regardless of the duration of the
project.
Section 3. Term and Termination.
1. The term of this Agreement shall commence on the Effective Date and shall
continue for a period of twelve (12) months (the “Initial Term”). The Agreement will
automatically renew for successive additional one-year terms (each, a “Renewal Term”)
unless either party gives a written notice not to renew prior to the expiration of the Initial
Term or any Renewal Term, as applicable.
2. In addition to the terms by their nature survive the expiration or earlier
termination of the Agreement, the following provisions shall survive the expiration or
earlier termination of this Agreement: Section 3.2, Sections 4 through 8.
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Section 4. Representations and Warranties.
Each of Referrer and Cafeto represents and warrants that: (i) it has the right to enter
into this Agreement and the right to grant the rights and licenses granted herein; (ii) it is
not a party to any agreement, contract, or understanding that would prevent, limit or hinder
its performance of this Agreement; (iii) during the Term, it will not enter into any contract,
agreement or understanding which is in conflict or which would interfere with the full and
complete performance of any of the duties or grants hereunder; and (iv) it is not a party to
any pending claims or litigation which might affect its performance of this Agreement.
Section 5. Indemnification.
1. Each party (an “Indemnifying Party”) shall indemnify, defend and hold
harmless the other party (the “Indemnified Party”), its affiliates, and each of their directors,
officers, employees, and agents from and against all claims, suits and proceedings and any
and all related liabilities, losses, expenses, damages and costs (including, without
limitation, reasonable attorneys’ fees) incurred by the Indemnified Party, relating to or
arising out of the breach by the Indemnifying Party of any of its duties, obligations,
representations or warranties under this Agreement.
2. An Indemnified Party will (i) promptly notify the Indemnifying Party of any
claim, suit, or proceeding for which indemnity is claimed (but the Indemnifying Party shall
be relieved from liability only to the extent any delay in providing such notice prevents the
Indemnifying Party from defending such claim, suit or proceeding); (ii) cooperate
reasonably with the Indemnifying Party at the Indemnifying Party’s expense; and (iii)
allow the Indemnifying Party to control the defense or settlement thereof. The Indemnified
Party will have the right to participate in any defense of a claim and/or to be represented
by counsel of its own choosing at its own expense.
Section 6. Limitation of Liability.
Neither party hereto will be liable to the other party for indirect, incidental,
consequential, special or exemplary damages (even if such party has been advised of the
possibility of such damages) such as, but not limited to, loss of revenue or anticipated
profits or lost business.
Section 7. Confidentiality.
1. The following confidentiality obligation is in addition to the confidentiality
obligation of the parties set forth in any agreement with the customers referred to Cafeto
by Referrer.
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2. Either party may use Confidential Information of the other party, including
that of Referrer’s customers, in order to carry out its obligations hereunder, but in doing so
will only allow the disclosure of Confidential Information on a need-to-know basis
(provided such persons are first informed of the confidential nature of such information
and directed to use or disclose it only as permitted herein). If either party must disclose any
Confidential Information of the other party as required by law, then that party may make
such disclosure after providing the other party with reasonable notice so that the other party
may seek protective relief.
3. Referrer and Company, and either party’s affiliates, and their respective
affiliates’ officers, directors, trustees, employees, advisers, agents and other personnel,
shall use at least the same care and discretion to prevent disclosure of Confidential
Information (as hereinafter defined) of the other party as it uses with similar Confidential
Information of its own that it does not desire to disclose, but in no event with less than a
reasonable degree of care.
4. Nothing herein shall be construed as granting either party any property rights,
by license or otherwise, to any Confidential Information of the other party, or to any
invention or any patent, copyright, trademark, or other intellectual property rights of the
other party.
5. Except as otherwise provided in the agreements with the referred customers
with respect to their Confidential Information, the obligations under this Section will
survive the expiration or earlier termination of this Agreement and the obligation of
confidentiality of Confidential Information shall continue for three (3) years after the
expiration or earlier termination of this Agreement. Upon request by the other party, each
party will return to the other party or destroy all of that other party’s Confidential
Information embodied in tangible form unless otherwise agreed; provided that archival or
backup copies of Confidential Information may be maintained to the extent the return or
destruction of Confidential Information is commercially impracticable so long as the
confidentiality of Confidential Information is maintained.
6. For purposes of this Section, “Confidential Information” means (1)
business or technical information or data (oral, written, electronic or otherwise), including,
without limitation, a trade secret (as defined under applicable law), of or about a party
provided or made available by such party to the other party that is competitively or
commercially valuable to that party and not generally known or readily available by legal
means to others; and (2) similar information belonging to and maintained by the referred
customers; and (3) information regarding the existence, content or status of the business
relationship described herein. Confidential Information shall not include information
which (i) at the time of disclosure, was published, known publicly, or otherwise in the
public domain, (ii) after disclosure, is published, becomes known publicly, or otherwise
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becomes part of the public domain through no fault of the party receiving Confidential
Information, (iii) prior to the time of disclosure, is known by that receiving party or, after
disclosure, is independently developed by that receiving party as evidenced by its written
records, (iv) after disclosure, is made available to that receiving party in good faith by a
third party who is under no obligation of confidentiality or secrecy to the party disclosing
the Confidential Information, or (v) information agreed to be disclosed.
Section 8. Miscellaneous.
1. Notice. All notices under this Agreement will be given in writing or by
written telecommunications via overnight mail, facsimile, or electronic mail to the
addresses set forth below or such other address as either party may substitute by notice
hereunder and all such notices given in accordance hereunder will be deemed as given as
of the date of sending:
If to Cafeto:
Attn: ___________________
Phone: __________________
Email: __________________
If to Referrer:
Attn: ___________________
Phone: __________________
Email: __________________
2. Severability. If any provision of this Agreement will be held to be invalid or
unenforceable for any reason, the remaining provisions will continue to be valid and
enforceable. If a court finds that any provision of this Agreement is invalid or
unenforceable, but that by limiting such provision it would become valid and enforceable,
then such provision will be deemed to be written, construed, and enforced as so limited.
3. Waiver. The waiver by any party of any breach of any provision of the
Agreement by any other party will not be construed to be a waiver of that party’s rights
regarding any succeeding breach of any such provision or a waiver of the provision itself.
4. Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to this subject matter and supersedes all previous proposals, both
oral and written, negotiations, representations, commitments, writings and all other
communications among the parties. This Agreement may not be released, discharged or
modified except by an instrument in writing signed by the parties.
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5. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas, without regard to any applicable conflicts
of laws, except to the extent that certain matters may be governed by federal law by reason
of preemption.
6. Relationship of Parties. Nothing contained in this Agreement will be deemed
or construed as creating a joint venture or partnership between Cafeto and Referrer. Neither
party, by virtue of this Agreement, is authorized as an agent, employee or legal
representative of the other. Except as specifically set forth herein, neither party will have
the power to control the activities and operations of the other and their status is, and at all
times will continue to be, that of independent contractors.
7. Assignment; Effect of Change in Control. Neither party may assign its rights
or obligations under this Agreement (whether by merger, consolidation, sale of assets, sale
of stock or otherwise) without the other parties’ written consent; except that Cafeto may
provide the Services through its affiliates, including Cafeto Software SAS and Cafeto
Software Mexico SA de CV.
8. Dispute Resolution; Waiver of Jury Trial. The parties will attempt to resolve
any dispute arising out of or relating to this Agreement through good-faith negotiations
between the parties prior to commencing any legal proceeding. EACH OF THE PARTIES
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT, INCLUDING THE VALIDITY AND INTERPRETATION OF THE
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREUNDER.
9. The singular form of any noun or pronoun shall be considered to include
within its meaning the plural form of the noun or pronoun so used, and vice versa. The
masculine form of a noun or pronoun shall be considered to include within its meaning the
feminine and neutral genders.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date hereof.
Cafeto Software USA LLC Referrer Company
By: _________________________ By: _______________________________
Name: Luis Pérez Name: _____________________________
Title: CEO Title: ______________________________
