MASTER TERMS AND CONDITIONS
1. APPOINTMENT OF REFERRAL PARTNER.
a. Appointment. PRINCIPAL appoints REFERRAL PARTNER as a non-exclusive representative to promote the sale of and solicit orders for local, long distance and/or internet, data telecommunication services, colocation, cloud and web services provided through Principal to its business customers (collectively, the “Principal Services”); provided that the Principal Services shall not include REFERRAL PARTNER Services. PRINCIPAL reserves the right to add or delete from the Principal Services at its sole option; provided Principal will make commercially reasonable efforts to provide written notices to REFERRAL PARTNER of such additions or deletions and will be bound by any sales made prior to such notice. REFERRAL PARTNER agrees and acknowledges that PRINCIPAL markets and sells the Principal Services through direct sales, indirect sales (including other REFERRAL PARTNERs of Principal), and other sales channels. REFERRAL PARTNER agrees and acknowledges that PRINCIPAL may terminate any of the Principal Services, at any time following the Initial Term, without any compensation or fees owed to REFERRAL PARTNER following such termination date, except as expressly provided in this Agreement, including Section 7 hereof.
b. Compensation. In exchange for REFERRAL PARTNER’s performance under this Agreement, PRINCIPAL agrees to compensate REFERRAL PARTNER in accordance with the terms and conditions of this Agreement and at the rates set forth in Exhibit B attached hereto and incorporated by this reference.
c. Independent Contractor. REFERRAL PARTNER is, and throughout the term of this Agreement shall remain, an independent contractor and not an employee of PRINCIPAL or its affiliates or parent corporations or subsidiaries. PRINCIPAL shall not be responsible for withholding federal, state or municipal income, or any other taxes from the payments made by PRINCIPAL to REFERRAL PARTNER. REFERRAL PARTNER shall be solely responsible for filing all tax returns and paying any income, social security or other tax levied upon REFERRAL PARTNER with respect to the payments made to REFERRAL PARTNER pursuant to this Agreement. PRINCIPAL is, and throughout the term of this Agreement shall remain, an independent contractor and not an employee, partner or REFERRAL PARTNER of REFERRAL PARTNER or its affiliates or parent corporations or subsidiaries. REFERRAL PARTNER shall not be responsible for withholding federal, state or municipal income, or any other taxes from the payments made by REFERRAL PARTNER to PRINCIPAL. PRINCIPAL shall be solely responsible for filing all tax returns and paying any income, social security or other tax levied upon it by any government entity with respect to the payments made by REFERRAL PARTNER to PRINCIPAL pursuant to this Agreement.
2. DEFINITIONS. All capitalized terms used but not otherwise defined herein or in the Exhibits hereto shall have the meaning set forth in this Section.
End User, Client or Customer: A person or entity who is a paying customer of PRINCIPAL or a customer for which REFERRAL PARTNER receives Commissions as a result of the sale of the Services to such customer by Blue Equinox or its other agents, partners, resellers.
Principal Provider: An IT and communications carrier who sells or provides its services and products wholesale to PRINCIPAL for marketing and/or resale by a REFERRAL PARTNER.
Person: Any individual, subsidiary, corporation, limited liability company, partnership, co-partnership, firm, joint venture, association, joint stock company, trust, estate, unincorporated organization, governmental or regulatory body or other entity.
Principal Services: PRINCIPAL’s products and services including, without limitation, equipment, applications, and services referenced in Section 1(a).
REFERRAL PARTNER Prospect: A commercial customer referred to Blue Equinox by REFERRAL PARTNER, which in REFERRAL PARTNER’s reasonable business judgment is qualified to receive a Service, has indicated an interest in purchasing a Service and for whom REFERRAL PARTNER provides Blue Equinox with such information as it reasonably requests for the purpose of selling such Service. Referrals of current Blue Equinox customers or customers generated by Blue Equinox, its other agents, partners, resellers or another REFERRAL PARTNER, are not eligible for a REFERRAL PARTNER Fee
Services: Collectively, the Principal Services and the REFERRAL PARTNER Services.
Order: Orders taken by REFERRAL PARTNER from Customers for the Principal Services provided by Principal Providers.
Commission(s): A one-time, upfront payment and/or residual payments due from PRINCIPAL to REFERRAL PARTNER, from REFERRAL PARTNER to PRINCIPAL, as set forth in Exhibit B.
3. TERM. This Agreement shall remain in full force and effect from the Effective Date through the date six (6) months following the Effective Date (the “Initial Term”), and shall automatically renew for six (6) month terms (each a "Renewal Term;" the Initial Term and each Renewal Term shall be collectively referred to as the "Term"), unless either party provides a written notice of termination to the other within sixty (60) days prior to the last day of the Initial Term or any Renewal Term.
4. REFERRAL PARTNER RESPONSIBILITIES AND RESTRICTIONS.
a. REFERRAL PARTNER shall use commercially reasonable efforts to send Blue Equinox sales representative(s) referral(s). No quote, estimate, proposal or Order given or taken by Blue Equinox from referral for Principal Services shall be binding until accepted by PRINCIPAL and/or the applicable Principal Provider in writing, which PRINCIPAL shall use commercially reasonable efforts to provide timely. All Referrals by Referral Partner that enter into a Services agreement with Blue Equinox will be deemed to be Customers of Blue Equinox for as long as they are under a contractual obligation with Blue Equinox with respect to the Services. Blue Equinox must receive an acceptable letter of authority (“LOA”) on the Customer’s letterhead, signed by an appropriately authorized employee of the customer and specifically describing the authority granted to Referral Partner, before Blue Equinox will provide any Customer account information to Referral Partner.
b. REFERRAL PARTNER will be responsible for all costs incurred by REFERRAL PARTNER in performing this AGREEMENT.
c. Marketing Restrictions. Referral Partner shall not engage in any form of unsolicited marketing, including unsolicited telephone calls, faxes or electronic communications. Referral Partner shall not hold itself out as a Blue Equinox company or employee, or otherwise promote any Service in a way that may confuse anyone as to its source. Referral Partner shall not use, print or distribute any materials or information containing an Blue Equinox trademark or logo, or issue any press release or similar public announcement regarding the relationship established by this Agreement without prior written approval from Blue Equinox.
d. REFERRAL PARTNER agrees to perform in accordance with, and be governed by, in all its actions and duties hereunder, the highest standards of honesty, integrity, and fair dealings. PRINCIPAL agrees to perform in accordance with, and be governed by, in all its actions and duties hereunder, the highest standards of honesty, integrity, and fair dealings. REFERRAL PARTNER will not make any representations or warranties to third parties (including, without limitation, End Users, Clients, Customers, other REFERRAL PARTNERs, AGENTS, resellers) on PRINCIPAL’s or any Principal Provider’s behalf. PRINCIPAL will not make any representations or warranties to third parties (including, without limitation, End Users, Clients, Customers, other REFERRAL PARTNERs, AGENTS, resellers) on REFERRAL PARTNER’s or any Principal Provider’s behalf.
e. REFERRAL PARTNER agrees to conduct [himself or herself] at all times with due regard to public conventions and morals. REFERRAL PARTNER agrees not to do or commit any act that will reasonably tend to degrade [him or her] or bring PRINCIPAL into public hatred, contempt, or ridicule, or tend to shock or offend society and/or the IT community, or to prejudice PRINCIPAL or the IT community in general. These include but are not limited to: recreational drug use, public intoxications, sexual misconduct, verbal or physical misconduct, arrests that result while REFERRAL PARTNER agreement in place. REFERRAL PARTNER acknowledges and agrees that this provision is necessary to protect PRINCIPAL’s goodwill in the community in which REFERRAL PARTNER represents it and thus to protect the profitability of PRINCIPAL’s business.
f. REFERRAL PARTNER has total control of the management of REFERRAL PARTNER's affairs, subject to the limitations contained in this Agreement. REFERRAL PARTNER is not a legal representative of PRINCIPAL for any purpose whatsoever. REFERRAL PARTNER does not have the power to bind PRINCIPAL, and therefore may not enter into any agreement that purports to binds PRINCIPAL unless PRINCIPAL has given its express prior written consent in each case. PRINCIPAL has total control of the management of PRINCIPAL and its related entities’ affairs, subject to the limitations contained in this Agreement. PRINCIPAL is not a legal representative of REFERRAL PARTNER for any purpose whatsoever.
g. During the Term of this Agreement and for a period of twelve (12) months thereafter, REFERRAL PARTNER agrees not to [i] directly or indirectly, commit any act or undertake any activity that would tend to interfere with any existing relationship between PRINCIPAL and any of its Principal Providers, suppliers, vendors, distributors, business partners, employees or Customers; or [ii] contact or solicit any of the Customers, including the REFERRAL PARTNER Customers, who subscribe to the Principal Services as a result of PRINCIPAL’S sales and marketing efforts or REFERRAL PARTNER’s referral during the Term for the purpose of switching any of said Customers to another competing provider or master agency unless, without solicitation by REFERRAL PARTNER or its REFERRAL PARTNERs or representatives, such Customer expressly requests to do so. During the Term of this Agreement and for a period twelve (12) months thereafter, PRINCIPAL agrees, subject to REFERRAL PARTNER’S obligations set forth in this Section 4(e), not to [i] directly or indirectly, commit any act or undertake any activity that would tend to interfere with any existing relationship between REFERRAL PARTNER and any of its providers, suppliers, vendors, distributors, business partners, employees, or End Users, Clients or Customers or [ii] contact or solicit any of the Customers who are not receiving any of the Principal Services, for the purpose of switching any of said Customers to another competing provider or master agency unless, without solicitation by PRINCIPAL or its REFERRAL PARTNERs or representatives, such Customer expressly requests to do so.
5. PRINCIPAL RESPONSIBILITIES.
a. PRINCIPAL shall pay compensation to REFERRAL PARTNER in accordance with the terms set forth in Section 6 and Exhibit B.
b. PRINCIPAL will use its commercially reasonable efforts to work with each Principal Provider to ensure the timely payment of the Commission to PRINCIPAL by such Principal Provider.
c. PRINCIPAL shall receive and verify each Order once such Order has been submitted by Blue Equinox sales representaitve to PRINCIPAL. PRINCIPAL shall process and submit Orders to Principal Providers.
d. PRINCIPAL shall provide monthly reports to REFERRAL PARTNER which list the active Orders generated by REFERRAL PARTNER and the status of Customer accounts.
e. An Order shall be deemed accepted by a Principal Provider only when it has been reviewed and accepted in writing by the Principal Provider. Except as may otherwise be set forth herein, PRINCIPAL or a Principal Provider, in their absolute discretion and without incurring any liability of any type to REFERRAL PARTNER or to a prospective Customer (either for the payment of Commissions or otherwise): (i) may refuse or reject any Order, in whole or in part, whether referred by REFERRAL PARTNER hereunder or otherwise; (ii) may fix the terms and conditions upon which they will accept any Order, provided that such terms and conditions are provided in writing to REFERRAL PARTNER and the Customer; (iii) may cancel or permit cancellation of any Order by a Customer or prospective Customer after acceptance thereof; provided that no cancellation is permitted after REFERRAL PARTNER begins any installation; (iv) may grant such allowance or concessions to the Customer or prospective Customer, as either may deem proper; provided PRINCIPAL or Principal Provider use its commercially reasonable efforts to provide written notice of such allowance or concession to REFERRAL PARTNER; and/or (v) may move a Customer or prospective Customer from one pricing plan to another pricing plan, based upon competitive pressures, volume or other similar criteria. Further, PRINCIPAL or a Principal Provider may make any additional modifications in connection with the Principal Services, an Order, pricing or any other term of this Agreement to a Customer or prospective Customer as PRINCIPAL or the Principal Provider, as applicable, deem necessary or desirable to ensure Customer satisfaction. Notwithstanding the foregoing, any material modification, change or addition made by PRINCIPAL or the Principal Provider to an Order must be provided to REFERRAL PARTNER in advance and in writing.
a. PRINCIPAL shall pay REFERRAL PARTNER, and REFERRAL PARTNER shall accept in exchange for the duties that REFERRAL PARTNER is required to perform hereunder, a Commission on the sale of the Principal Services solicited by REFERRAL PARTNER based upon a flat percentage of the Commission that is paid to PRINCIPAL by its Principal Providers. The Commission shall be calculated in accordance with the compensation table set forth in Exhibit B.
b. REFERRAL PARTNER’s Commission shall be deemed earned when PRINCIPAL receives actual payment for the Services sold, and REFERRAL PARTNER’s Commission shall be calculated based upon the commission received by PRINCIPAL. REFERRAL PARTNER acknowledges and agrees that it shall be subject to either a changed Commission level, no Commission, a reduced payment or a delayed payment if, for any reason, PRINCIPAL: (i) does not receive the payments from a given Principal Provider that PRINCIPAL expects to receive relative to any account’s usage; (ii) receives no payment; (iii) receives a reduced payment; or (v) receives a delayed payment, unless otherwise mutually agreed by PRINCIPAL and REFERRAL PARTNER. PRINCIPAL agrees that Commissions will be paid to REFERRAL PARTNER within thirty (30) days of PRINCIPAL's receipt of payment from the respective Principal Provider.
c. REFERRAL PARTNER agrees to submit, in writing, to PRINCIPAL any dispute about a Commission within fifteen (15) business days of REFERRAL PARTNER'S receipt of a statement of Commissions from PRINCIPAL. Statements of Commissions from PRINCIPAL to REFERRAL PARTNER shall be sent at least monthly.
d. PRINCIPAL may hold back a portion or all of a Commission to protect itself from a Principal Provider charging back PRINCIPAL with respect to an upfront or residual Commission paid in connection with a Service sold by Blue Equinox for REFERRAL PARTNER if REFERRAL PARTNER does not have enough anticipated future Commissions to cover such chargeback. If there are insufficient future Commissions to cover the chargeback amount, then REFERRAL PARTNER shall immediately pay to PRINCIPAL the amounts due to PRINCIPAL as a result of the chargeback within fifteen (15) business days of notice to REFERRAL PARTNER.
e. If overbilling or overpayment to REFERRAL PARTNER results from mistakes in quantities, sales price, mistaken reporting from a Principal Provider or a PRINCIPAL error, or if any service is rejected by a prospective Customer, a proportionate amount of the Commission previously paid to REFERRAL PARTNER with respect to the sale of such Principal Service shall be deducted from any future Commissions to be paid to REFERRAL PARTNER. If there are insufficient future Commissions to cover the chargeback amount, then REFERRAL PARTNER shall immediately pay to PRINCIPAL the amounts due PRINCIPAL as a result of the chargeback within fifteen (15) business days of written notice to REFERRAL PARTNER.
f. PRINCIPAL shall have the right to charge back to or set‑off against REFERRAL PARTNER’s Commission any amounts owed to PRINCIPAL by REFERRAL PARTNER under this Agreement or any other agreement between PRINCIPAL and REFERRAL PARTNER upon providing REFERRAL PARTNER with written notice of the amount of the chargeback or set-off and in reasonable detail the reasons for the same. REFERRAL PARTNER shall have the ability to challenge any such charge back or set‑off and the parties shall negotiate in good faith to resolve the issues.
g. Exclusions. Referral Fees will not be paid on any non-recurring charges (e.g. for installations and equipment), any discount, credit, rebate, adjustment or allowance granted to a customer, any tax, fee or surcharge, or other similar charge, including, without limitation, the Universal Service Fund surcharge, E911 and number portability, resale Services and Services ordered for Referral Partner’s own use. The following are not eligible to receive a Referral Fee: existing customers of any Blue Equinox company, current employees of any Blue Equinox company, their parent company or another affiliate (and their immediate family members); Referral customers previously referred to Blue Equinox by a third party or previously solicited by Blue Equinox, its agent, partner, reseller or independent sales representative, or by another referral partner. Blue Equinox sales agents, partners, resellers and independent sales representatives, are excluded from the Referral Partner Program unless prior written approval is obtained from Blue Equinox.
h. PRINCIPAL’s obligation to pay Commissions shall cease upon termination of this Agreement if no Commission has accrued under Section 6(b) at the time of termination. In the event, Commissions have accrued and are continuing to accrue at the time of termination of this Agreement, PRINCIPAL agrees to continue to pay REFERRAL PARTNER Commissions received by PRINCIPAL on the sale of the Services to Customers solicited by REFERRAL PARTNER prior to the termination of this Agreement.
i. REFERRAL PARTNER acknowledges that any agreement between PRINCIPAL and a Principal Provider may, for any reason or no reason, be (1) terminated or (2) modified to such an extent that, in its reasonable business judgment, PRINCIPAL cannot continue to offer Principal Services from such Principal Provider under this Agreement. Upon the effective date of any such termination or modification, Commissions relative to that Principal Provider may terminate or be reduced in direct proportion if PRINCIPAL’s contract with such Principal Provider terminated or reduced the Commissions. PRINCIPAL agrees to notify REFERRAL PARTNER of such modification or termination in writing, with sufficient detail to explain the termination or reduction in Commissions; provided that failure to provide such notice will not affect in any manner, the resulting termination or reduction in Commissions.
j. PRINCIPAL may, in its sole discretion, amend at any time the list of Principal Services and the associated Commissions paid, if such change results from a change in the nature of terms of Principal’s agreement with the Principal Provider. Principal will use its commercially reasonable best efforts to provide written notice of any such amendments to REFERRAL PARTNER at least thirty (30) days prior to any termination of a Principal Provider (to prevent REFERRAL PARTNER from selling Principal Services that have been terminated).
k. EVERGREEN. PRINCIPAL will continue to pay REFERRAL PARTNER a residual commission for as long as those Customers earned during the term of this agreement, remain customers of PRINCIPAL, unless the Service is terminated by the Customer. REFERRAL PARTNER will continue to pay PRINCIPAL a residual commission for as long as those Customers, earned during the term of this agreement, remain customers of REFERRAL PARTNER, unless the Service is terminated by the Customer.
a. Termination for Cause. Either party may terminate this Agreement for cause upon Default by the other party, provided that the other party has not cured such Default within thirty (30) days after the date of notice of the Default. For purposes of this section, Default shall mean:
i. With respect to either party, the material breach, nonperformance or noncompliance with any material provision, condition, or covenant in this Agreement;
ii. With respect to either party, any assignment for the benefit of creditors or the filing of a voluntary or involuntary bankruptcy petition under the United States Code or any similar state statutes or insolvency laws or if a trustee, receiver, or other administrator is appointed to operate or administer either parties' business;
iii. With respect to either party, the violation, breach or other conflict of or with any other judicial, regulatory, state, federal or local law, rule, regulation, decree, order or other requirement in connection with the party’s performance under this Agreement; or
iv. With respect to either party, its employees and representatives (including for PRINCIPAL), any fraudulent acts committed in the performance of this Agreement or otherwise.
b. Immediate Termination.
i. PRINCIPAL may terminate this Agreement immediately, without notice to the REFERRAL PARTNER if REFERRAL PARTNER attempts to assign this Agreement except in accordance with the terms enumerated herein or with PRINCIPAL's prior written consent, which shall not be unreasonably withheld or delayed; or
c. Termination without cause
i. Notwithstanding anything contained to the contrary herein, either party may terminate this Agreement for any reason or no reason, with or without cause, and without further liability other than the fees and Commissions accrued prior to the date of such termination, by providing thirty (30) days written notice to the other party of its intention to so terminate this Agreement; provided, however that neither party to this Agreement may exercise its rights under this Section 6(c)(i) during the Initial Term.
d. Effect of Termination. Upon termination of this Agreement, REFERRAL PARTNER will immediately cease providing referrals or receiving reporting from PRINICIPAL. In the event that PRINCIPAL terminates this Agreement without cause under Section 7(c), then Commissions received by PRINCIPAL on the sale of the Services to Customers referred by REFERRAL PARTNER prior to the termination of this Agreement will continue to be paid to REFERRAL PARTNER.
8. TARIFFS AND INFORMATIONAL MATERIAL. This Agreement and all Services are governed by the terms and conditions contained in PRINCIPAL’s tariffs and price list (collectively, the “Tariffs”) filed with federal and state regulatory agencies. Tariff rates and terms are subject to change by PRINCIPAL or the appropriate regulatory agency at any time and from time to time. Tariffs and informational materials relating to the Services may be changed by PRINCIPAL in its sole discretion.
9. LIMITATION OF LIABILITY. IN NO EVENT, SHALL PRINCIPAL OR REFERRAL PARTNER BE LIABLE TO THE OTHER PARTY, ANY EMPLOYEE, REFERRAL PARTNER OR CONTRACTOR OF THE OTHER PARTY, OR ANY THIRD PARTY, FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. BOTH PARTIES’S LIABILITY TO THE OTHER UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES EARNED BY PRINCIPAL PURSUANT TO THIS AGREEMENT FOR THE PRINCIPAL SERVICES PROVIDED HEREUNDER.
a. Indemnification by Principal. Principal shall defend (if required by and with counsel reasonably satisfactory to REFERRAL PARTNER), indemnify and hold REFERRAL PARTNER, its parent, subsidiary and any other affiliated or related companies of each, and the officers, owners, directors, REFERRAL PARTNERs, employees and assigns of each, harmless from and against any and all damages, claims, demands, suits, judgments, losses, or expenses (including, without limitation, reasonable attorneys' and other professionals' fees) of any nature whatsoever (whether based on tort, breach of contract, product liability, patent or copyright infringement or otherwise) arising directly or indirectly from or out of (i) any negligent act or omission of Principal, its officers, directors, REFERRAL PARTNERs, representatives, vendors, suppliers or employees; (ii) any failure of Principal to perform the Principal Services hereunder in accordance with generally accepted industry and/or professional standards as applicable, or the standards required by this Agreement; or (iii) any other failure of Principal to comply with the obligations on Principal’s part to be performed hereunder. The provisions of this paragraph shall survive the expiration or sooner termination of this Agreement.
b. Indemnification by REFERRAL PARTNER. REFERRAL PARTNER shall defend (if required by and with counsel reasonably satisfactory to Principal), indemnify and hold Principal, its parent, subsidiary and any other affiliated or related companies of each, and the officers, owners, directors, REFERRAL PARTNERs, employees and assigns of each, harmless from and against any and all damages, claims, demands, suits, judgments, losses, or expenses (including, without limitation, reasonable attorneys' and other professionals' fees) of any nature whatsoever (whether based on tort, breach of contract, product liability, patent or copyright infringement or otherwise) arising directly or indirectly from or out of: (i) any negligent act or omission of REFERRAL PARTNER, its officers, directors, REFERRAL PARTNERs, representatives, vendors, suppliers or employees; or (ii) any failure of REFERRAL PARTNER to perform its obligations under this Agreement; or (iii) any other failure of REFERRAL PARTNER to comply with the obligations on REFERRAL PARTNER’S part to be performed hereunder. The provisions of this paragraph shall survive the expiration or sooner termination of this Agreement.
11. NOTICES. For the purpose of this Agreement, notices, demands and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when delivered personally, or by private overnight mail service, postage prepaid, or (unless otherwise specified) three days after being mailed by United States registered or certified mail, return receipt requested, postage prepaid, and addressed to the parties as set forth on the first page of this Agreement, or to such other address as the parties may furnish to each other, in writing, except that notices of change of address shall be effective only upon receipt.
12. MISCELLANEOUS. This Agreement and the attached Addenda contain the entire understanding and agreement between the parties hereto with respect to its subject matter and supersedes any prior or contemporaneous written or oral agreements, representations or warranties between them respecting the subject matter hereof, other than any Addenda executed contemporaneously herewith. This Agreement may be amended only by a writing signed by REFERRAL PARTNER and PRINCIPAL. If any term, provision, covenant or condition of this Agreement, any Addenda or the application thereof to any person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement or Addenda and such term, provision, covenant or condition as applied to other persons, places and circumstances shall remain in full force and effect. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party; provided, however, PRINCIPAL may assign this Agreement or any rights or obligations hereunder in whole or in part without the prior written consent of REFERRAL PARTNER to (i) any affiliate or subsidiary of the PRINCIPAL which expressly assumes in writing all of PRINCIPAL’s duties and obligations under this Agreement, or (ii) the purchaser of all or substantially all of the assets of PRINCIPAL. Further, PRINCIPAL shall not unreasonably withhold consent to an assignment of this Agreement by REFERRAL PARTNER. Any attempt at assignment without prior written consent shall be null and void. This Agreement shall be construed in accordance with, and all actions arising hereunder shall be governed by, the laws of the State of Tennessee. Should either party hereto, or any heir, personal representative, successor or assign of either party hereto, resort to litigation to enforce this Agreement, the party or parties prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to recover its or their reasonable attorneys’ fees and costs in such litigation from the party or parties against whom enforcement was sought. The rights and remedies provided by this Agreement are cumulative, and the exercise of any right or remedy by either party hereto (or by its successors), whether pursuant to this Agreement, to any other agreement, or to law, shall not preclude or waive its right to exercise any or all other rights and remedies. No failure or neglect of either party hereto in any instance to exercise any right, power or privilege hereunder or under law shall constitute a waiver of any other right, power or privilege or of the same right, power or privilege in any other instance. All waivers by either party hereto must be contained in a written instrument signed by a duly authorized representative of the party to be charged.