These Moxo Referral Partner Terms and Conditions (this “Agreement”) are entered into by and between Moxo, Inc. (“Moxo”), having offices at 2261 Market St., Suite 97451, San Francisco, CA 94114, and the party (“Company”) that submits the referral partner registration form made available by Moxo and whose registration is accepted by Moxo. This Agreement becomes effective on the date Moxo accepts Company’s registration form (the “Effective Date”). Company and Moxo are referred to herein individually as a “Party” and collectively as the “Parties”.
WHEREAS, Moxo offers a service which uses AI agents to enable intelligent orchestration of complex business processes within and across organizations;
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 identified in a Qualified Lead Form submitted by Company to Moxo, provided (i) that such Qualified Lead Form is accepted by Moxo as more fully described in Section 5, and (ii) within twelve (12) months after acceptance by Moxo of such Qualified Lead Form 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) “First Customer Agreement Year” means the first 12 months of a Customer Agreement.
(e) “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.
(f) “Net Revenue” shall mean the gross revenue actually collected by Moxo, less any applicable taxes, credits and discounts, which a Customer pays for the Service provided during the First Customer Agreement Year. Net Revenue is from subscription license fees only and does not include any one-time fees including, but not limited to, fees for set-up or professional services. Net Revenue does not include any fees due from Customer which were not actually collected by Moxo.
(g) “Qualified Lead Form” means a form provided by Moxo for use by Company, pursuant to which Company identifies for Moxo a potential Customer.
(h) “Referral Fees” means the lesser of (i) 30% of the Net Revenue collected by Moxo for Service provided in the First Customer Agreement Year for each Customer or (ii) $30,000.
(i) “Service” shall mean the Moxo Service, as more fully described at https://www.moxo.com/legal/description-of-services.
2. Prospective Customers and Non-Exclusivity.
(a) Identifying Prospective Customers. Company will provide information made available by Moxo 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 a Qualified Lead Form to Moxo.
(b) 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. Qualified Lead Form Process.
(a) From time to time, Company may submit to Moxo a Qualified Lead Form setting forth details regarding a potential Customer, provided that the Company has verified through direct contact with the potential Customer that it has a serious interest in the Service. Upon receipt, Moxo will review such Qualified Lead Form and, within ten (10) business days of receipt, determine whether or not to accept the Qualified Lead Form and notify Company of its decision. If the Qualified Lead Form is accepted, Company will use reasonable efforts to set up an introductory meeting between Moxo and appropriate key personnel of the potential Customer within thirty (30) days after notice of acceptance. If Moxo decides not to accept the Qualified Lead Form, it will not use any information contained in the Qualified Lead Form 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 Qualified Lead Form 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 an accepted Qualified Lead Form does not, within twelve (12) months after acceptance by Moxo of such Qualified Lead Form, enter into a Customer Agreement with Moxo, the potential customer will not be deemed a Customer.
6. Referral Fees.
Within forty five (45) days after the end of each calendar quarter during the term of this Agreement and during which Customer Agreements were in effect, Moxo shall pay to Company the Referral Fees specified in Section 1(h).
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, NONINFRINGEMENT, 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 SHALL MOXO’S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF THE REFERRAL FEES DUE TO COMPANY.
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) violates 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 in connection with this Agreement (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 and 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 which default is not remedied within ten (10) days after notice thereof; 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(d), 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 Qualified Lead Forms 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 notices@moxo.com or to Head of Commercial Sales, 2261 Market St., Suite 97451, San Francisco, CA 94114; and (ii) if to Company, be given to the email or physical address provided in Company’s referral registration form. 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 hereunder will be the date on which such notice is deemed to be given.
15. General.
(a) Assignment. Neither Party may assign or 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) 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.
(d) 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.
(e) 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 be entitled to recover reasonable attorneys’, accountants’ and experts’ fees, and costs in addition to such other relief as the court may award.
(f) 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.
(g) 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.
(h) 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.
(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 Company 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 hereunder 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, except that nothing herein contained shall be construed as intended to relieve or release either Party from its obligation to make payment of any monies which either Party may owe to the other Party. 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 by a written instrument signed by the Parties to this Agreement, which instrument makes specific reference to this Agreement and the changes to be made hereto.
Acceptance. By checking the acceptance box and submitting the referral partner registration form, Company’s authorized representative agrees to this Agreement on behalf of Company. This Agreement becomes effective, and a binding contract is formed, only upon Moxo’s acceptance of Company’s registration form, which Moxo will confirm in writing (email sufficient).
