This Agreement is entered between ConferTel, a California Corporation, with its principal place of business at 2385 Camino Vida Roble, Suite 202, Carlsbad, California 92011, and Marketing Agent.
RECITALS
WHEREAS, ConferTel is a provider of integrated teleconferencing services (“Service(s)”); and
WHEREAS, Marketing Agent desires to obtain a non-exclusive right to market ConferTel Services; and
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein set forth, the parties agree as follows:
1. RELATIONSHIP BETWEEN CONFERTEL AND MARKETING AGENT
1.1 ConferTel hereby grants the Marketing Agent a non-exclusive right to offer Services to prospective customers on the terms and conditions set forth by ConferTel. ConferTel may, at its sole discretion, at any time during the term of this Agreement, and without liability to Marketing Agent, add new products and Services, delete specific products or Services from the definition of Service provided hereunder, or change the terms and conditions under which these Services may be offered.
1.2 Marketing Agent may, at its own expense, employ, appoint or otherwise designate such sub-agents, employees, representatives, and assistants (herein collectively referred to as “Marketing Agent’s Representatives”) as Marketing Agent deems necessary to perform any or all of Marketing Agent’s duties hereunder. Any person employed by Marketing Agent shall not be an employee of ConferTel and shall be so advised upon hire and/or upon appointment by Marketing Agent to perform Marketing Agent’s duties pursuant to this Agreement. In the event that Marketing Agent’s Representative does not comply with the terms and conditions of this Agreement, as determined by ConferTel in its sole discretion, ConferTel may bar the use of any such sub-agent, employee or representative. Marketing Agent will remain solely responsible for all actions or omissions of Marketing Agent’s Representatives and will be liable for any breach of this Agreement caused by the conduct of Marketing Agent’s Representatives.
1.3 Marketing Agent acknowledges that it has only those rights specifically described in this Agreement. Marketing Agent does not have the authority to bind ConferTel or its affiliates by contract, either express or implied, or otherwise or to make oral, written or implied representations as to ConferTel’s business policies or procedures, or to quote any price not specifically authorized by ConferTel in writing to Marketing Agent.
1.4 ConferTel holds all title, right, possession and dominion over its Services and no such title, right, possession and dominion shall pass to Marketing Agent hereunder.
2. AGENT COMMISSION COMPENSATION
2.1 Marketing Agent shall solicit potential customers with ConferTel standard Service offerings, including ConferTel’s standard prices, rates, terms and conditions unless any changes thereto are pre-approved in writing by ConferTel.
2.2 Marketing Agent shall earn either a Buy-Rate or Fixed Percentage commission, based on the applicable class-of service for all per-minute Services pursuant to the rates and provisions set forth in the Exhibits and Section 2.3. Buy-Rate commission is defined as the per-minute margin difference between Customer Selling Price and the Agent Buy-Rate, converted to a percentage of that Selling Price. Buy-Rate and Fixed Percentage commission shall be subject to Standard selling prices as shown in the Exhibits and Sections 2.8 and 7.3. Buy Rate commission shall be superceded by a Fixed Percentage commission at ConferTel authorized non-standard selling prices that are at or below the Agent Buy Rate. Commission on non per-minute Ancillary Services and Event Conferences and other outsourced services shall be based on a Fixed Percentage. ConferTel shall have no further obligation to pay Agent a separate or other commission that is in addition to its Buy-Rate or Fixed percentage commission.
2.3 Agent commissions shall be computed on Customer Net Revenues. For purposes of this Agreement, Net Revenue shall be equal to the revenue earned by ConferTel, excluding: (i) taxes and surcharges; (ii) credits, discounts, promotions, and adjustments; (iii) late or finance charges; (iv) any pass through or other amount ConferTel collects for or pays to third parties, including, without limitation, payments in support of statutory or regulatory programs mandated by governmental or quasi-governmental authorities such as the Universal Service Fund (“USF”); (v) markups from outsourced service providers. Commissions on International calls shall be calculated on the domestic base price only (less any international surcharges).
2.4 Agent compensation shall be deemed earned by Agent when payment is received from Customer and shall be paid to Marketing Agent in the ConferTel commission payment cycle immediately following the month in which the payment is collected by ConferTel.
2.5 Notwithstanding any other provision contained in this Agreement, there shall be no obligation to pay commissions under this Agreement on past due Customer accounts, or with orders that were secured in violation of the terms and conditions of this Agreement. ConferTel shall have the right to offset any money owed Marketing Agent against any money owed to ConferTel by Marketing Agent.
2.6 In the event ConferTel terminates this agreement or reassigns any of Agent’s accounts, without cause, ConferTel shall continue paying Marketing Agent earned commissions for the duration of its Customers’ Service. If the Marketing Agent terminates the Agreement for any reason, the Marketing Agent shall not be entitled to any commission payments after the date of termination other than unpaid commission(s) earned prior to termination.
2.7 ConferTel shall have no obligation to pay, compensate or reimburse Marketing Agent any of Marketing Agent’s costs or expenses and Marketing Agent waives all claims against ConferTel for any such costs or expenses unless previously agreed to in writing by both parties.
2.8 The Agent Compensation Plan Exhibits of this Agreement are valued for standard ConferTel Services sold at standard prices and rates and under standard terms and conditions only. All other Services or business opportunities that require Special Support shall be deemed Non-Standard Services. Non-Standard Services, Prices or Term(s) may, at ConferTel’s sole discretion, result in Non-Standard Compensation, which may be different than the compensation defined in the Exhibits of this Agreement. Any business opportunity that Marketing Agent reasonably believes will be a Non-Standard Service must be brought to the attention to ConferTel, requesting written approval prior to pursuing. ConferTel may pay Marketing Agent a Non-Standard or reduced compensation on such Non-Standard Service. Should the Marketing Agent fail to reasonably identify such a potential Non-Standard Service prior to the order, ConferTel reserves the right to pay no compensation for such Non-Standard Service.
3. TERM OF AGREEMENT. The initial term of this Agreement shall be two (2) years; provided, however (a) either party may terminate this Agreement with or without cause upon thirty (30) days written notice to the other; and (b) ConferTel may terminate this Agreement, for cause, effective upon the date of the mailing of written notice to Marketing Agent; and (c) this Agreement shall renew automatically for successive one year terms, unless written notice is received by either party at least thirty (30) days prior to the renewal date. ConferTel’s obligation to pay Marketing Agent any commission will cease and Marketing Agent will lose any unpaid commissions, in the event, in ConferTel’s unfettered discretion, Marketing Agent:
3.1 Makes any false or misleading representation, report or claim with respect to the Agreement or the Services of ConferTel or its suppliers, or
3.2 Becomes insolvent, files or has filed against it any state or federal proceedings which result in transfer of control or loss of control or possession of a material portion of its assets, or
3.3 Engages in fraud, criminal or gross negligent conduct in connection with its business relationship with ConferTel or with the Customers, or
3.4 Participates, directly or indirectly, in the conversion of a ConferTel customer in good standing over to another service provider, or
3.5 Breaches any other material provision of this Agreement, as determined by ConferTel in its sole discretion, and fails to cure within five (5) business days after written notice of the same.
3.6 If Agent fails to cure a breach of its Agent Responsibilities, ConferTel, in its sole discretion, may terminate this Agreement upon thirty (30) days notice and ConferTel shall have no further liability to Marketing Agent except for unpaid commission(s) earned prior to termination.
4. CHANGES IN TERMS. ConferTel reserves the right to change the terms and conditions of this Agreement at any time during the initial or renewed term(s), including, without limitation, charges to customers and Marketing Agent compensation upon giving thirty (30) days written notice to the Marketing Agent.
4.1 If Marketing Agent fails to meet the Sales Volume Quota established for its Buy-Rate pricing level as set forth in the Exhibits for two consecutive quarters commencing with the second and third quarters following the inception date of that pricing, ConferTel, in its sole discretion, may revise that Agent’s pricing status upon thirty (30) days notice.
4.2 Upon receipt of written Agent-of-Record request from Customer, ConferTel reserves the right to remove Customer from Marketing Agent’s account base. There shall be no obligation to continue payment of commissions following receipt by ConferTel of such request, except that ConferTel shall pay to Marketing Agent those unpaid commissions earned by it prior to receipt by ConferTel of such request. Notwithstanding the above, ConferTel agrees not to solicit Marketing Agent’s Representatives or its lead sources or to induce Customers in any way that would interfere with Marketing Agent’s right to receive compensation pursuant to this Agreement.
5. CUSTOMER ACCEPTANCE
5.1 All customer account applications must be approved by an authorized representative of the Customer and by ConferTel’s credit department before the account can be activated. ConferTel, in its sole discretion, may reject any application for Service.
5.2 Payment is due ConferTel from customer on or before the date stated in Customer’s invoice. Customer’s Service may be interrupted or discontinued, at ConferTel’s sole discretion, and without any liability to Marketing Agent, if Customer does not pay invoices in a timely manner or if ConferTel stops offering or selling any Service.
5.3 Marketing Agent assumes responsibility for the validity of the customer applications that Marketing Agent submits, as well as for the correctness of the information that is contained in those applications. Marketing Agent understands that any inaccuracies in such information may result in delay in the processing of such applications and may result in the rejection of the application by ConferTel. ConferTel may recover from Marketing Agent any commission payments that are made by ConferTel as a result of an incorrect or invalid application.
6. CONFERTEL’S RESPONSIBILITIES.
6.1 ConferTel shall provide Customer Service and Billing and Collection Services that include the production of Customer invoices, posting of charges, payment and credits, and other work associated with Customer billing and collections. Summary customer billing and collection information will be provided to the Marketing Agent, in the form of a Monthly Agent Commission Statement.
6.2 ConferTel shall provide Marketing Agent, for purposes of marketing the Services, with reasonable access to promotional materials, sales literature, and sales aids to be used by Marketing Agent solely in its activities as provided in this Agreement.
6.3 ConferTel reserves the right to directly contact its customers to determine the satisfaction with the Services.
7. MARKETING AGENT’S RESPONSIBILITIES.
7.1 Marketing Agent shall use its best efforts to market the Services and to secure Customers for ConferTel.
7.2 Marketing Agent shall solicit Customers on behalf of ConferTel and submit or cause Customers to submit executed Service applications to ConferTel.
7.3 Marketing Agent shall offer ConferTel Services only at standard ConferTel pricing rates and under the ConferTel approved terms, or at certain designated rates previously authorized in writing by ConferTel to Marketing Agent subject to any specified terms and conditions.
7.4 Marketing Agent shall be responsible for security of all customer demonstration access codes requested by or given to Marketing Agent, and is responsible for all costs involved with unauthorized or fraudulent usage of said access codes.
7.5 Marketing Agent shall be responsible for assisting ConferTel in support of those customers solicited by Marketing Agent. Support shall include, but shall not be limited to, soliciting and expediting applications, obtaining customer credit information and assisting ConferTel in resolving Customer complaints when appropriate. Marketing Agent shall give ConferTel prompt notice of all customer complaints which are not resolved by Marketing Agent to the customer’s satisfaction or which can only be resolved by ConferTel, and shall assist ConferTel in working with customer to resolve any such complaints.
7.6 Marketing Agent shall keep ConferTel informed of its efforts to promote ConferTel products and Services including quarterly sales projections.
7.7 Marketing Agent may be required to demonstrate technical proficiency and sales competency to sell ConferTel Services and may be requested to attend training or sales teleconferences or follow instructions pertaining to Services to be provided.
7.8 All costs and expenses incurred by Marketing Agent and its subagents or employees in performing its services under this Agreement shall be borne by Marketing Agent and shall not be reimbursed by ConferTel.
8. LIMITATION OF LIABILITY. THE LIABILITY OF CONFERTEL TO MARKETING AGENT UNDER THIS AGREEMENT IS LIMITED TO THE OBLIGATION TO PAY COMMISSIONS AS DESCRIBED HEREIN.
8.1 CONFERTEL WILL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO MARKETING AGENT, CUSTOMER(S), OR ANY OTHER ENTITY OR PERSON WITH RESPECT TO CONFERTEL’S ACCEPTANCE, LOSS, DELAY OR REFUSAL TO ACCEPT APPLICATIONS SOLICITED BY MARKETING AGENT OR OTHERWISE OBTAINED FROM CUSTOMER(S), OR FOR SERVICE INTERRUPTION, FAILURE OR UNAVAILABILITY, CUSTOMER SATISFACTION, OR LOSS OF CUSTOMER.
8.2 CONFERTEL MAKES NO REPRESENTATION OR WARRANTY TO MARKETING AGENT, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR OTHERWISE WITH RESPECT TO THE SERVICES.
8.3 CONFERTEL WILL NOT BE LIABLE, IN ANY EVENT, FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, OR PUNITIVE DAMAGES, BY REASON OF ANY ACT OR OMISSION IN ITS PERFORMANCE UNDER THIS AGREEMENT. THIS CLAUSE SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
8.4 CONFERTEL WILL HAVE NO LIABILITY TO MARKETING AGENT FOR COMMISSIONS THAT MIGHT HAVE BEEN EARNED UNDER THIS AGREEMENT BUT FOR CONFERTEL’S DELAY IN ACCEPTING OR PROCESSING ANY ORDER, LOSS OR REFUSAL OF ANY ORDER, OR THE INABILITY OR FAILURE OF CONFERTEL TO PROVIDE SERVICES TO ANY PERSON OR ENTITY OR IN THE EVENT OF DISCONTINUATION OR MODIFICATION OF THE SERVICES.
9. CONFERTEL CUSTOMERS. Marketing Agent will not solicit existing ConferTel customers on behalf of ConferTel or any other provider during or after the termination or expiration of this agreement. ConferTel will reject orders placed through Marketing Agent for customers already subscribed to its Services.
10. NON-EMPLOYMENT RELATIONSHIP. Marketing Agent is not an employee of ConferTel for any purpose whatsoever, but is an independent contractor. ConferTel is interested only in the results obtained by Marketing Agent, who shall have sole control of the manner and means of performing under this Agreement. ConferTel shall not have the right to require Marketing Agent to collect accounts, conform to any fixed or minimum number of hours devoted to selling effort, follow prescribed itineraries, keep records of business transacted, make adjustments, bind ConferTel, or do anything else which would jeopardize the relationship of the independent contract between ConferTel and Marketing Agent. Marketing Agent shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax laws, with respect to Marketing Agent or Marketing Agent’s Representatives who engage in the performance of this Agreement. Marketing Agent shall have full and complete responsibility for all of its costs and operating expenses, for providing worker’s compensation insurance for its employees, and shall provide adequate automobile liability coverage and general liability coverage for damages to persons, property or the business of others occasioned by its activities hereunder or contemplated hereby. Upon request, Marketing Agent will provide ConferTel with evidence of these insurance coverages, and will have ConferTel named as an additional insured under its general liability coverage. Marketing Agent warrants and represents that it is independently established in business with valid business license and maintains separate records for the business. Marketing Agent will supply a completed IRS form W9 to ConferTel.
11. INDEMNIFICATION. Marketing Agent shall indemnify, hold harmless and defend ConferTel and its suppliers, affiliates, officers, directors, shareholders, agents, employees, successors, assigns and independent contractors from and against any and all claims, demands, causes of action, losses, damages, costs and expenses, including, without limitation, reasonable attorneys fees (collectively “Claims”) arising out of or related to Marketing Agent or Marketing Agent’s Representative’s acts or omissions (or those of Marketing Agent’s officers, directors, partners, employees, agents or other representatives, if any) including, without limitation, the breach of any term of this agreement; any misrepresentation by Marketing Agent or Marketing Agent’s Representatives to Customers regarding the terms and provision of ConferTel’s Services or of the authority of Marketing Agent or Marketing Agent’s Representatives; any Service to Customer that Customer did not order, and any claim for withholding or other taxes that might arise or be imposed with respect to Marketing Agent’s or Marketing Agent’s Representatives’ activities or performance of this Agreement. Marketing Agent agrees to promptly defend against any of these losses, claims, damages, liabilities or expenses but will not settle a Claim for which it owes an obligation to indemnify without consulting with and obtaining ConferTel’s prior written approval. Marketing Agent must also allow ConferTel, at its option, to participate in the defense. Marketing Agent will immediately notify ConferTel in writing of the commencement or threatened commencement of any action, suit or proceeding, and of the issuance or threatened issuance of any order, writ, injunction, award or decree of any court, agency or governmental instrumentality, involving Marketing Agent’s activities under this Agreement or that may affect Marketing Agent’s ability to perform its obligations hereunder.
12. NOTICES. Any required notices to be given by either party to the other must be in writing delivered personally or by registered, certified or overnight mail, postage prepaid. Mailed notices shall be addressed to the parties at their last known residential or business address. Notices delivered personally shall be deemed communicated as of the date of actual receipt. Mail that is refused, unclaimed or undeliverable, if personally addressed to the party to be notified, shall be deemed communicated as of the first date said mail was refused, unclaimed or deemed undeliverable by the postal authorities.
13. SURVIVAL OF OBLIGATIONS. It is the intention of the parties that certain Sections or provisions within Sections of this Agreement are purposed to survive termination, cancellation or expiration of this Agreement, including, without limitation, this Section 13 and the Sections whose headings are titled RELATIONSHIP BETWEEN CONFERTEL AND MARKETING AGENT, CONFERTEL CUSTOMERS, LIMITATION OF LIABILITY, INDEMNIFICATION, TERM OF AGREEMENT, NOTICES, MISCELLANEOUS, ATTORNEYS’ FEES and SERVERABILITY.
14. SEVERABILITY. If any portion of this agreement is declared to be unenforceable or invalid, the parties agree that such invalidity shall not affect the enforceability or validity of the remaining provisions of this agreement.
15. MISCELLANEOUS. This contract shall be governed by the laws of the State of California. Venue for any action arising out of this agreement shall be in San Diego County. It constitutes the entire agreement between the parties on the matters covered and may not be amended except by a written document signed by authorized representatives of each party. It supersedes all prior verbal or written communications or understandings between the parties or any of their representatives.
16. ASSIGNMENT. This contract is personal to the Marketing Agent and may not be assigned to any other person, partnership or corporation without the prior written consent of ConferTel. Any such assignment, without the written consent of ConferTel, shall render this agreement void and unenforceable and shall operate as a forfeiture, by Marketing Agent, of all moneys due hereunder.
17. ATTORNEYS’ FEES. In the event legal action is instituted in order to enforce this contract, the prevailing party shall be entitled to an award of reasonable attorney’s fees and cost incurred.
18. HEADINGS. The headings which have been used throughout this Agreement have been inserted for convenience of reference only and do not constitute matters to be construed in interpreting this Agreement.
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