WITH TRUPHONE, EVERYBODY WINS.
Join the Truphone Referral Partner Program and help us get more businesses connected globally.
Affordable global connectivity is its own reward, but as a registered Truphone Referral Partner, you can earn up to $100 cash for every successful new activation* on our global mobile network, now through March 31, 2014.
Apply now, start referring - and start earning!
*Offer available to registered Truphone Referral Partners for successful activations on the Truphone network on or before February 28, 2014. See Terms and Conditions for further details.
You will receive confirmation of your application submission to the email address you provided.
Truphone Referral Associate Terms & Conditions
NOW IT IS HEREBY AGREED BY TRUPHONE AND REFERRAL ASSOCIATE as follows:
1.1 In this Agreement (including the Recitals) unless the context otherwise requires, the following terms shall have the following meaning:
“Activation” means a voice and/or data subscription that is assigned to a single SIM to TRUPHONE Service for a minimum term of 12 months and is fully set out in Article 5 of this Agreement.
“Affiliate” means any other Person that either directly or indirectly controls, or is under common control with, or is controlled by, a respective party to this Agreement. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a party (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
“Business Days” means any week day excluding Saturday, Sunday and any other public or official holidays where the banks in the city of New York are not open for business.
“Commission” means the commission payment that is due to the REFERRAL ASSOCIATE hereunder in consideration for the provision of services provided by the REFERRAL ASSOCIATE under this Agreement and is fully set out in Article 5 of this Agreement.
“Customer” means any retail end user, consumer or business entity, [residing or incorporated] in the United States of America that has entered into a contract with TRUPHONE for the provision of products or services by TRUPHONE.
“Effective Date” has the meaning specified in the opening paragraph of this Agreement.
“Intellectual Property” means any and all (i) inventions, discoveries, methods, processes, original works of authorship, mask works, databases, data, trademarks, service marks, trade dress, know-how, trade secrets, domain names, and confidential and proprietary information and other subject matter; (ii) all patent, copyright, trademark, trade secret and other proprietary rights in and to the any of the foregoing in clause (i), including without limitation all registrations and registration and other applications in connection therewith and all extensions, renewals, reissues, re-examinations, divisions, continuations, and substitutions thereto and thereof, in and under the laws of any jurisdiction worldwide; and (iii) any and all modifications, improvements, derivative works, and compilations of or to any of the foregoing in clause (i).
“Marketing Guidelines” means the TRUPHONE branding and marketing guidelines required to be used by REFERRAL ASSOCIATE for marketing the sale of TRUPHONE Services to prospective Customers.
“Marketing Material” means any and all marketing collateral, advertising and promotional material, Marketing Guidelines, or any other branding or material carrying the logos, marks, names, trading names, or brands of TRUPHONE or its Affiliates.
“Opportunity” means a qualified sales prospect which may be a prospective Customer interested in purchasing the TRUPHONE Services.
“Opportunity Registration Form” means the form of Schedule 1 attached hereto and incorporated by reference herein (“Schedule 1”), in which each prospective Opportunity is to be registered in accordance with the terms of this Agreement.
“Parties” means TRUPHONE and REFERRAL ASSOCIATE, collectively, and “Party” means either TRUPHONE or REFERRAL ASSOCIATE, as the context so requires.
“Person” includes a natural person or any partnership, corporate, unincorporated, governmental, or other business entity.
“REFERRAL ASSOCIATE” has the meaning specified in the opening paragraph of this Agreement.
“Services” means the provision by or on behalf of TRUPHONE of international mobile communications services based on or relating to the TRUPHONE SIM Card’s multi-IMSI technology.
“Service Fees” means all fees associated with wireless communication.
“Taxes” means any taxes that are levied on a payment under this Agreement, now or imposed in the future, including but not limited to any form of general sales tax, value added tax, withholding tax, export taxes or taxes applicable to the sale of any goods and/or services.
“Term” means the duration of this Agreement, which shall commence on the Effective Date and shall continue until terminated in accordance with the provisions of this Agreement.
“TRUPHONE” has the meaning specified in the opening paragraph of this Agreement or any of its Affiliates as the context so requires.
2.1 In consideration of the REFERRAL ASSOCIATE identifying, introducing, and registering an Opportunity in accordance with this Agreement, TRUPHONE agrees to pay the REFERRAL ASSOCIATE a Commission based on sales of Services directly resulting from such new Opportunity, as further described in Article 5.
2.2 For the avoidance of any doubt, the arrangement between TRUPHONE and the REFERRAL ASSOCIATE set forth herein is non-exclusive, and TRUPHONE may freely use individuals or entities other than the REFERRAL ASSOCIATE for the same or similar services provided by the REFERRAL ASSOCIATE hereunder.
2.3 For the avoidance of doubt, each party is responsible for the costs and expenses incurred by such party in connection with the marketing and promotion of the Services.
3. RESPONSIBILITIES OF THE REFERRAL ASSOCIATE
3.1 The REFERRAL ASSOCIATE shall:
(i) Identify in writing to TRUPHONE each Opportunity for the sale of Services promptly after the REFERRAL ASSOCIATE discovers such Opportunity.
(ii) Promptly thereafter provide TRUPHONE with a formal introduction to the Opportunity and any Persons relevant to a future sale of Services.
(iii) Promptly thereafter, register the Opportunity by properly completing and submitting to TRUPHONE an Opportunity Registration Form.
During the Term, the REFERRAL ASSOCIATE shall serve TRUPHONE (i) in accordance with the terms of this Agreement with all due and proper diligence (acting dutifully and in good faith); (ii) in a manner that, at all times, reflects favorably on TRUPHONE and is in TRUPHONE’s best interests and otherwise in accordance with accepted industry standards; and (iii) by using all reasonable commercial endeavors to increase the sale of TRUPHONE Services to Customers.
3.2 REFERRAL ASSOCIATE shall not promote or market or solicit referrals for any products or services of TRUPHONE or its Affiliates, other than the Services. REFERRAL ASSOCIATE will not be a party under any agreement for the Services, and TRUPHONE or its Affiliates shall enter into a separate agreement for the Services with each applicable Opportunity.
3.3 REFERRAL ASSOCIATE may use the Marketing Material solely in accordance with the provisions of Article 6 of this Agreement.
3.4 Except to the extent expressly authorized by TRUPHONE in writing in advance, the REFERRAL ASSOCIATE shall not incur any responsibilities, duties, obligations, or liabilities on behalf of TRUPHONE nor pledge the credit of TRUPHONE nor make any commitments, representations, warranties, or guarantees on behalf of TRUPHONE. REFERRAL ASSOCIATE acknowledges and agrees that REFERRAL ASSOCIATE is an independent contractor for all purposes hereunder and in no event shall REFERRAL ASSOCIATE be an agent of TRUPHONE or have any authority to bind TRUPHONE or any of the employees, officers, directors, agents, or other representatives (collectively, “Representatives”) of TRUPHONE.
3.5 REFERRAL ASSOCIATE represents and warrants to TRUPHONE that the collection, processing and storage of any information that can be used to uniquely identify, contact, or locate an Opportunity, Customer, or other person or can be used with other sources to uniquely identify an Opportunity, Customer, or other person shall be done in full compliance with all applicable laws, rules, regulations, and ordinances, including with limitation all data protection laws and regulations.
3.6 REFERRAL ASSOCIATE assumes full responsibility and liability for the actions and omissions of its, and any of its Affiliates’, Representatives and third-party contractors with respect to the REFERRAL ASSOCIATE’s and such Affiliates’, Representatives’, and contractors’ activities in connection with this Agreement, including without limitation any breach of the obligations hereunder regarding Confidential Information, and shall be solely responsible for all supervision, daily direction, control, and payment and provision of all compensation and other employment-related benefits of any of the foregoing. For the avoidance of doubt, any REFERRAL ASSOCIATE human resources, even if dedicated to providing services to TRUPHONE under this Agreement, shall remain employees or contractors of REFERRAL ASSOCIATE or any REFERRAL ASSOCIATE Affiliate, as the case may be, and no contractual, employment, or relationship exists or shall exist between any such human resources and TRUPHONE. In no event shall the REFERRAL ASSOCIATE use any of its Affiliates or any third-party contractors in connection with its activities and obligations under this Agreement without the prior written consent of TRUPHONE.
4. RESPONSIBILITIES OF TRUPHONE
4.1 TRUPHONE shall provide REFERRAL ASSOCIATE with such quantities of Marketing Material that TRUPHONE in its sole discretion deems reasonably necessary for REFERRAL ASSOCIATE’s performance hereunder in a form and on such media as the Parties agree.
4.2 TRUPHONE shall have the sole right, but in no event shall be obligated, to undertake any cost savings or bill analysis for an Opportunity and, without limiting Section 3.4 hereof, in no event shall REFERRAL ASSOCIATE make any representations or warranties to an Opportunity on the form or other aspects of cost savings or bill analysis comparing the Services with the services of any other communications providers, unless approved by TRUPHONE in writing in advance.
4.3 TRUPHONE agrees to provide strategic updates to REFERRAL ASSOCIATE with respect to the Services, in particular in relation to the addition of new TRUPHONE countries and pricing adjustments, as appropriate.
4.4 Within a reasonable time after receipt of a properly completed Opportunity Registration Form from the REFERRAL ASSOCIATE, TRUPHONE shall either accept or reject such Opportunity in writing. An Opportunity may be rejected in TRUPHONE’s sole discretion for any reason. TRUPHONE reserves the right to further review at any time any Opportunity that it accepts pursuant to the immediately preceding sentence and may decide, in its sole discretion and for any reason, that such Opportunity will not be pursued, including without limitation and solely by way of example, because the Opportunity does not have appropriate credit-worthiness, TRUPHONE believes that unsustainable costs may arise out of the Opportunity, TRUPHONE was already aware of and/or working with the Opportunity prior to the REFERRAL ASSOCIATE’s involvement with the Opportunity, and/or TRUPHONE becomes aware of technical reasons for not pursuing the Opportunity that were not evident at the time of TRUPHONE’s initial appraisal of the Opportunity.
5.1 TRUPHONE agrees to pay any undisputed, due and payable sales Commissions to REFERRAL ASSOCIATE as follows and otherwise in accordance with this Article 5:
If TRUPHONE consummates a sale from an Opportunity within nine (9) months after TRUPHONE receives from the REFERRAL ASSOCIATE and accepts a properly completed Opportunity Registration Form for such Opportunity, TRUPHONE will pay the REFERRAL ASSOCIATE a Commission, as a one-time finder’s fee, of $75 per Activation for the number of Activations made on the commencement of the Customer contract and within three (3) months of the Customer contract commencement date (“Commission Rate”). For the avoidance of doubt, any short term, trial, or pilot activation shall in no event be considered an “Activation” for purposes of this Agreement.
5.2 Payment under this Article 5 will only be in relation to an Opportunity accepted by TRUPHONE in accordance with and subject to Section 4.4 of this Agreement.
5.3 The Commission payments including any finder’s fee compensation will become due within 45 days of TRUPHONE receiving at least $150.00 of Customer’s Service Fees (not including taxes and government fees) per Activation to which such Commission payments apply. TRUPHONE will provide the REFERRAL ASSOCIATE a written statement detailing which Activations are being compensated hereunder.
5.4 TRUPHONE reserves the right to recover by way of charge back any Commission for specific Activations if there is substantial evidence, as determined by TRUPHONE in its sole discretion, that the Opportunity associated with such Activation is later determined fraudulent or that the Commission was obtained by the REFERRAL ASSOCIATE in violation of any of the terms or conditions of this Agreement.
5.5 The Parties agree that TRUPHONE shall be entitled to initiate and undertake a review of the Commission Rate payable under this Agreement every twelve (12) months, commencing from the Effective Date and has the right to modify the commission rates after such review in its absolute discretion.
5.6 All collection, remittance and payment of any Taxes, charges, levies, assessments and other fees of any kind imposed by any governmental or other authority in respect of the activities and obligations of REFERRAL ASSOCIATE hereunder shall be the sole responsibility of, and for the account of, REFERRAL ASSOCIATE.
5.7 Unless otherwise stated in this Agreement, each Party will bear its own costs, fees and expenses incurred in performing its obligations under this Agreement.
5.8 In the event that the REFERRAL ASSOCIATE fails to comply with any of its obligations under this Agreement, TRUPHONE reserves the right to withhold any future Commission payments until such time, if any, as the REFERRAL ASSOCIATE has remedied any non-compliance.
5.9 Upon any expiration or termination of this Agreement in accordance with its terms, any then-pending Opportunities for which the REFERRAL ASSOCIATE has properly completed and submitted to TRUPHONE an Opportunity Registration Form can be approached by TRUPHONE and, if TRUPHONE accepts such Opportunity Registration Form and consummates a sale for Services with the applicable Customer, any Commission payable to the REFFERAL PARTNER in connection therewith shall be in accordance with this Article 5.
6. MARKETING AND ADVERTISING
6.1 REFERRAL ASSOCIATE shall comply with all directions and instructions given to it by TRUPHONE in relation to promotion and advertisement of Services and, without limiting Section 3.4 hereof, shall not make any statement as to the manufacture, quality or performance of the Services without the prior written approval of TRUPHONE.
6.2 TRUPHONE agrees to provide REFERRAL ASSOCIATE with branding and Marketing Guidelines, and REFERRAL ASSOCIATE shall adhere to all the foregoing at all times. Any failure to adhere to these Marketing Guidelines shall constitute a material breach of this Agreement for which TRUPHONE may immediately terminate this Agreement.
6.3 The REFERRAL ASSOCIATE may use the Marketing Material provided by TRUPHONE solely in furtherance of its obligation to actively market and promote the Services. Any and all goodwill arising out of any use of Marketing Material in connection with this Agreement shall inure to the sole and exclusive benefit of TRUPHONE.
6.4 REFERRAL ASSOCIATE agrees to indemnify TRUPHONE, its Affiliates, and its and their Representatives and keep all the foregoing fully indemnified, and defend and hold harmless all the foregoing, from and against any and all liability, loss, damage, costs and expenses, including any reasonable legal fees, which TRUPHONE, its Affiliates, or any of its or their Representatives may incur or suffer, whether direct or consequential, as a result of any dispute, claim, action, suit, or proceeding brought against TRUPHONE, its Affiliates, or any of its or their Representatives by any third party resulting from REFERRAL ASSOCIATE’s or any of its Affiliate’s, Representative’s, or contractor’s breach of or default under this Agreement or any action or omission of any of the foregoing, which if performed or not performed, as the case may be, by the REFERRAL ASSOCIATE, would constitute a breach of this Agreement by the REFERRAL ASSOCIATE, or the negligence or willful misconduct of REFERRAL ASSOCIATE, or its Affiliates, Representatives, or contractors.
7. GRANT OF RIGHTS AND LICENSE
7.1 Subject to the terms and conditions of this Agreement, TRUPHONE hereby grants to REFERRAL ASSOCIATE, for the Term, the following limited, non-exclusive, non-transferable, non-sublicensable, revocable right:
(i) to advertise, market, promote Services to Opportunities in accordance with the terms of this Agreement; and
(ii) to use those trade names, logos, brands, trademarks and service marks of TRUPHONE associated with the Service (collectively, the "Marks") and the Marketing Material for the sole and exclusive purpose of marketing the Services and not in any other manner or for any other purpose whatsoever. REFERRAL ASSOCIATE shall use the Marks and the Marketing Material solely in the manner specified by TRUPHONE in writing, and in no other way. In using TRUPHONE Marks and the Marketing Material, REFERRAL ASSOCIATE agrees to hold itself out and describe itself solely as TRUPHONE’s authorized referral associate for TRUPHONE Services and not in any other capacity.
7.2 REFERRAL ASSOCIATE acknowledges and agrees that it is expressly prohibited from, or allowing any Person to attempt to (a) reverse engineer, decompile, reverse compile, or disassemble any software or other subject matter included in the Intellectual Property of TRUPHONE, the Services, TRUPHONE SIM Cards, Marketing Material, Marks, and TRUPHONE Confidential Information, or (b) use the Intellectual Property of TRUPHONE, or the Services, TRUPHONE SIM Cards, Marketing Material, or TRUPHONE Confidential Information to build a product and/or service that competes or may compete with the TRUPHONE SIM Card or Services.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 As between TRUPHONE and the REFERRAL ASSOCIATE, TRUPHONE owns and shall own all right, title, and interest in and to the Services, TRUPHONE SIM Cards, Marketing Material, Marks, and TRUPHONE Confidential Information and all Intellectual Property embodied therein or related thereto. The REFERRAL ASSOCIATE acknowledges that any and all Intellectual Property and other proprietary rights that subsist in or arise in connection with the Services, TRUPHONE SIM Cards, Marketing Material, and Confidential Information anywhere in the world belong to TRUPHONE or its licensors, as the case may be, and the REFERRAL ASSOCIATE has and shall have no right, title, or interest, whether express or implied, in or to any of the foregoing, except to the extent expressly provided herein. To the extent that, by operation of law or otherwise, any right, title, or interest in or to any Services, TRUPHONE SIM Cards, Marks, or Marketing Material or any Confidential Information or Intellectual Property of TRUPHONE vests in REFERRAL ASSOCIATE or any of its Affiliates or Representatives, REFERRAL ASSOCIATE hereby irrevocably and unconditionally assigns to TRUPHONE and forever waives and agrees never to assert, and shall cause all such Affiliates and Representatives to assign to TRUPHONE and forever waive and agree never to assert, all such right, title, and interest. REFERRAL ASSOCIATE shall, and shall cause all such Affiliates to, execute all documents and take all other actions requested by TRUPHONE in order to give further legal effect to the foregoing assignments, waivers, and agreements.
8.2 Notwithstanding the foregoing, any and all data provided by the REFERRAL ASSOCIATE, Opportunities, or Customers shall remain, as between TRUPHONE and any of the foregoing, the sole and exclusive property of the party providing the data.
8.3 The REFERRAL ASSOCIATE shall not apply for or attempt to register any patents, copyrights, mask works, trademarks, service marks, or trade dress covering or confusingly similar to the Services, TRUPHONE SIM Cards, or Marketing Material or any Confidential Information or Intellectual Property of TRUPHONE or any other products or processes owned, devised or developed by or on behalf of TRUPHONE. Any and all copies made by or on behalf of REFERRAL ASSOCIATE of any Marketing Material or other documents bearing any proprietary rights notices of TRUPHONE shall include all such notices in their original form without alteration or obliteration of any kind.
8.4 Upon termination of this Agreement for any reason the REFERRAL ASSOCIATE shall immediately cease to describe itself as a Referral Associate of TRUPHONE and cease to use all such Marketing Material, Intellectual Property and Marks in any manner whatsoever (including without limitation on stationery or vehicles) for which consent was granted by TRUPHONE and shall return to TRUPHONE or otherwise dispose of at TRUPHONE’s direction free of any charge all printed matter displaying such Marks or Intellectual Property in the REFERRAL ASSOCIATE’s possession.
9.1 Any non-disclosure agreement previously entered into between the Parties with respect to the subject matter herein shall continue to apply to this Agreement and in the case of conflict or doubt the non-disclosure agreement shall prevail. In addition thereto, “Confidential Information” as used herein shall mean any and all information, written or oral, provided or made available by or on behalf of one party or its Affiliates, contractors or vendors (each a “Disclosing Party”) to the other Party or its Affiliates, contractors or vendors (each a “Receiving Party”) in connection with performance of obligations or exercise of rights under this Agreement, in any case that is a “trade secret” (as that term is defined under applicable law), that is marked “confidential” or “proprietary” (or that bears similar markings or is otherwise clearly identified as confidential or proprietary), or that by its nature should reasonably be known by the Receiving Party to be confidential or proprietary. Confidential Information includes all client/customer lists, vendor lists and all lists or other compilations containing customer or vendor information; information about products, proposed products, research, product development, know-how, techniques, processes, costs, profits, markets, marketing plans, strategies, forecasts, sales and commissions, and unpublished information relating to technological and scientific developments; implementation methodologies or frameworks, tools and assets; plans for actual, anticipated or future business, research or development and new product concepts; all manufacturing techniques or processes, documents, books, papers, drawings, schematics, models, sketches, computer programs, databases, and other data of any kind and descriptions including electronic data recorded or retrieved by any means; software in various stages of development, and any designs, drawings, schematics, specifications, techniques, models, data, source code, algorithms, object code, documentation, diagrams, flow charts, research and development, processes and procedures relating to any software; and all other information that has been or will be given to a Receiving Party in confidence by Disclosing Party (or any Affiliate thereof) in connection with the Services, and/or this Agreement. Information of a contractor or vendor of either party, or another Third Party to whom a party owes a duty of confidentiality, will be treated as Confidential Information of that party if it meets the description above. A Disclosing Party’s Confidential Information includes material prepared by the Recipient to the extent it contains or references Confidential Information provided by the Disclosing Party.
9.2 Confidential Information is and will remain the property of the Disclosing Party, and the Receiving Party will not be deemed by virtue of this Agreement or any access to the Disclosing Party’s Confidential Information to have acquired any right or interest in or to any such Confidential Information. The Receiving Party agrees:
(i) to hold the Disclosing Party’s Confidential Information in strict confidence;
(ii) to limit disclosure of the Disclosing Party’s Confidential Information to the receiving Party’s own directors, other officers, employees and advisors having a need to know the information for the purposes of this Agreement;
(iii) not to disclose any such Confidential Information to any other party without the express prior written consent of the Disclosing Party;
(iv) to use the Disclosing Party’s Confidential Information solely and exclusively in accordance with the terms of this Agreement in order to carry out its obligations and exercise its rights under this Agreement;
(v) without limiting foregoing clauses (i)-(iv), to afford the disclosing Party’s Confidential Information at least the same level of protection against unauthorized disclosure or use as the Receiving Party normally uses to protect its own information of a similar character, but in no event less than reasonable care; and
(vi) to notify the Disclosing Party promptly of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information and co-operate with and assist the Disclosing Party in every reasonable way to stop or minimize such unauthorized use or disclosure.
9.3 The Receiving Party shall ensure that its directors, other officers, employees and advisors are made aware of and comply with the Receiving Party’s obligations of confidentiality under the terms and conditions of this Agreement.
9.4 Each Party will be entitled to comply with any binding subpoena or other process (“Subpoena”) to the extent required by law, but will promptly notify the other Party of the Subpoena, will provide reasonable co-operation to the disclosing Party in resisting such Subpoena, and will make every reasonable effort to secure confidential treatment of any materials it is compelled to disclose.
9.5 The obligations of this Clause 9 do not apply to disclosure of any particular Confidential Information:-
i. which is required by law or for the purpose of any judicial proceedings;
ii. which is required by any securities exchange or regulatory or governmental body to which that party is subject, wherever situated, including (amongst other bodies) any stock exchange or where the requirement for information has the force of law;
iii. that has come into the public domain through no fault of the Receiving Party or any employee or recipient;
iv. that is independently developed by the Receiving Party without any reference or prior exposure to the disclosing Party’s Confidential Information; or
v. that is given to the Receiving Party by a third party without breach of confidence.
9.6 Upon termination or expiration of this Agreement, the Receiving Party promptly will return, or, at the Disclosing Party’s option, will destroy, all Confidential Information of the Disclosing Party provided to the receiving party hereunder, and all copies thereof.
9.7 The parties acknowledge and agree that the terms of this Agreement are personal to the parties hereto and the terms and conditions themselves are confidential and shall not be disclosed to any third party without TRUPHONE’s prior written consent.
9.8 The provisions of this Article 9 shall survive any expiration or termination of this Agreement without limit in time.
10. LIMITATION OF LIABILITY
10.1The following provisions set out the entire financial liability of a party (including any liability for the acts or omissions of its representatives and contractors) to the other party in respect of any:
10.1.1 breach of the Agreement;
10.1.2 use made by a Customer of the Services;
10.1.3 representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement; and
10.1.4 any other common law or statutory cause of action arising in relation to this Agreement.
10.2 All representations, warranties, guarantees, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
10.3 Nothing in these terms and conditions excludes the liability of a Party for:
10.3.1 death or personal injury caused by such Party's negligence or intentional misconduct; or
10.3.2 fraud or fraudulent misrepresentation; OR
10.3.2 breach of Articles 7 (grant of rights and license), 8 (Intellectual Property Rights), or 9 (Confidentiality); OR
10.3.3 ANY INDEMNITY obligations PROVIDED UNDER THIS AGREEMENT.
10.4 Subject to clauses 10.2 and 10.3 above, Truphone shall not be liable, whether in tort (including for negligence, intentional misconduct, or breach of statutory duty), contract, misrepresentation or otherwise for:
10.4.1 loss of profits; or
10.4.2 loss of business; or
10.4.3 depletion of goodwill or similar losses; or
10.4.4 loss of anticipated savings; or
10.4.5 loss of goods; or
10.4.6 loss of contract; or
10.4.7 loss of use; or
10.4.8 loss or corruption of data or information; or
10.4.9 breach of any customer agreement; or
10.4.10any special, indirect, incidental, punitive, consequential or pure economic loss, costs, damages, charges or expenses.
10.5 except as expressly provided elsewhere in this Agreement or in relation to (i) breach of articles 7 (grant of rights and license). 8 (intellectual property rights) or 9 (confidentiality) or (ii) any indemnity-related obligations hereunder, a party’s total aggregate liability to the other party in any twelve (12) month period, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement, shall be limited to the maximum amount of five hundred thousand (USD$500,000) US Dollars.
10.6 The Parties agree that the limitations of liability set out in this Article 10 are to be enforced to the maximum extent permitted by law, but will not be deemed to limit any liability to an extent that is impermissible under applicable law.
11. TERM AND TERMINATION
11.1 This Agreement will commence on the Effective Date of this Agreement for an initial term of 12 months at which time it will terminate automatically; provided, however, that the term of this Agreement may be renewed on written request by either party, subject to written approval by TRUPHONE for successive one-year periods.
11.2 This Agreement can be terminated by either Party at any time, with or without cause, upon fifteen (15) days’ prior written notice to the other Party. The following provisions shall survive any expiration or termination of this Agreement: Article 1 (to the extent that any definitions therein are used in any other such surviving provisions), Section 5.9, Articles 8-10, Section 11.2, and Article 17.
Any notice given under this Agreement by either Party to the other Party must be in writing and may be effected by personal delivery, courier, e-mail or recorded delivery post and shall in the case of e-mail be deemed to be received on the same date as it was sent provided it was sent during standard business hours (9am to 5pm Eastern Standard Time, Monday through Friday) and is evidenced by a return receipt delivery notice and if sent by courier within 48 hours after the date of posting. Notices shall be effective if delivered or sent to the addresses of the Parties set out below or if a substitution address is notified in writing by one Party to other Party for such purposes after the date of this Agreement.
No forbearance or delay by either Party in enforcing its rights will prejudice or restrict the rights of such Party, and a waiver of any such rights, or of any breach of any contractual term, will not be deemed to be a waiver of any other right of or any later breach.
REFERRAL ASSOCIATE shall not assign or delegate any of its rights, duties, or obligations under this Agreement. Any such attempted assignment or delegation by REFERRAL ASSOCIATE shall be null and void.
15. APPLICATION OF TERMS
15.1 The terms and conditions of this Agreement shall apply to all Opportunity Registration Forms placed with TRUPHONE by the REFERRAL ASSOCIATE, and this Agreement shall override all other terms and conditions inconsistent herewith whether express, implied or otherwise, including, but not limited to terms, conditions or stipulations contained in any of REFERRAL ASSOCIATE's or Customer’s purchase orders or other form of writing or otherwise stipulated by the REFERRAL ASSOCIATE and which are at variance with or additional to the terms and conditions of this Agreement. The same shall not be binding upon TRUPHONE unless specifically accepted in writing and signed by a duly authorized signatory of TRUPHONE.
15.2 Except as otherwise provided herein, no addition, amendment or modification of the terms and conditions of this Agreement shall be effective, unless it is in writing and signed or accepted by a duly authorized signatory of TRUPHONE.
15.3 TRUPHONE may upon giving ninety (90) days’ notice to REFERRAL ASSOCIATE vary and/or replace any schedule to this Agreement.
15.4 If any provision or part of this Agreement is or becomes invalid, illegal, void or unenforceable, the remainder of this Agreement shall not be affected but shall continue in full force and effect and the invalid, illegal, void or unenforceable provision or part shall be deemed replaced or amended so far as is necessary to maintain the purpose and continuity of this Agreement.
This Agreement may be executed in any number of counterparts and by the parties to it on separate counterparts (which may be facsimile copies), but shall not take effect until each party has executed at least one counterpart. Each counterpart shall constitute an original of this Agreement, but all counterparts together shall constitute a single agreement.
17. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without resort to the conflict of law provisions thereof, and shall be subject to the exclusive jurisdiction of and venue in the Delaware Courts.