A. Company desires to appoint Agent as a non-exclusive independent marketing agent for the Company.
B. Company has a legitimate, commercially reasonable business interest to obtain Agent’s assistance in marketing its services to Agent’s clients and contacts, and wishes to pay Agent a fee for such assistance.
C. Agent is in sales and will be responsible for delivering prospective customers to Company.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Agent, intending to be legally bound, hereby agree as follows:
Beginning on the Effective Date, Agent will provide to Company the following services (collectively, the “Services”):
1.1. Agent agrees to market and assist Company in marketing Company’s products and services as may be defined and agreed to by the Parties from time to time either verbally or in writing to prospective customers. Agent agrees to deliver prospective customers to Company. Agent agrees to provide such Services to Company on a non-exclusive basis.
In consideration for Agent’s Services, the Parties agree to the following payment structure:
2.1. Referred Customers. Company shall pay Agent on a commission basis for “Referred Customers”. A Referred Customer is defined as a newly paying customer that generates monthly recurring revenue for Company where the lead came from the Agent subsequent to the execution of this agreement. Evidence of the origin of the Referred Customer can be in the form of personal introduction at events, email trails from Agent to the Referred Customer directing them to Company, tracking code from lead software, or communication from the Referred Customer at the time of introduction to Company. Referred Customers must acknowledge having been referred from Agent during their first interaction with Company.
2.2. Commissions. Company shall pay to Agent a commission equal to the applicable percentage of the “Net Revenue” of a Referred Customer. Net Revenue is defined as the monthly Recurring Revenue, it does not include set up fees. Recurring Revenue is defined as the receipt of the customer’s monthly subscription payment. Exhibit A to this Agreement contains the payout details for each partnership level of the Company’s Strategic Partner Program.
2.3.1. Company is not required to pay any commission to Agent where the account of the Referred Customer is suspended or terminated. In the event that Company has already paid a commission to Agent from a banned, suspended, or terminated Referred Customer, then Company reserves the right to offset the already paid commission against any upcoming payments to Agent, or to require a refund from Agent.
2.3.2. Company reserves the right to refuse or withhold commissions concerning Referred Customers whose address, bank information, credit card, or any other information is unverified or under investigation.
2.4. Method of Payment. Payments will be mailed by check by Company to Agent on either a quarterly, semi-annual, or annual basis depending on the Partner Level of Agent.
2.5. Forfeiture. Company will reasonably attempt to pay Agent using the information provided by Agent. In the event that Company is unable to successfully pay Agent due to circumstances beyond its control, Company shall make reasonable efforts to contact Agent using details provided. If, after six months, Company has been unable to pay or contact Agent, Company reserves the right to close or suspend Agent’s account, with all payments forfeited.
2.6. Refunds. In the event a Referred Customer requests a refund for a transaction for which Agent has earned a commission, any commission earned on the refund amount will be deducted from Agent’s balance.
2.7. Taxes. The amounts payable to Agent by Company under this Section 2 do not include any national, state or local sales, use, value-added or other taxes, customs duties, or other tariffs and fees which either party may be required to pay, to the extent applicable.
3.1. Initial Term. The term of this Agreement shall be for one (1) year and shall be automatically renewed from year to year unless either party gives sixty (60) days’ written notice of termination to the other party prior to the effective date of the renewal term.
3.2. Termination for Cause. If either party breaches any provision of this agreement and if such breach is not cured within thirty (30) days after receiving written notice from the other party specifying such breach in reasonable detail, the non-breaching party shall have the right to terminate this agreement by giving written notice thereof to the party in breach, which termination shall go into effect immediately on receipt. Any such termination shall not affect the Company’s obligations with respect to earned commissions.
3.3. Termination Without Cause. Either party may terminate this Agreement without cause upon thirty (30) days’ written notice to the other party, but any such termination shall not affect the Company’s obligations with respect to earned commissions.
4.1. The Parties agree, that unless required by law, they shall not make each other’s Confidential Information (as hereinafter defined) available in any form to any third party or to use each other’s confidential information for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
4.2. A Party’s “Confidential Information” shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; (d) is independently developed by the other party; or (e) is required to be disclosed by any judicial or governmental requirement or order (provided that Recipient timely advises the disclosing party of the governmental demand for disclosure).
4.3. Agent agrees that all of Company’s financial, business, legal and technical information, including but not limited to, Company’s fee structure, the identity of and information relating to Company’s employees, affiliates, and business partners which Agent learns or obtains during this engagement, constitute “Confidential Information”. Agent will hold in strict confidence and not disclose any Confidential Information.
4.4. Further, all oral and written proposals, information, advice, and all documents, papers, models, diagrams, programs and materials provided by Company are confidential, and for the exclusive use and benefit of Agent. Agent shall not copy or disclose or permit copying or disclosure of the whole or any part to any third party, other than employees, in any way, without the prior written approval of Company.
4.5. All discussions, negotiations, and terms and conditions of all contracts between Company and Agent also constitute Confidential Information. These shall not be disclosed nor shall disclosure be permitted, in whole or in part, by either Company or Agent to any third party, other than its own employees, without the prior written consent of the other party.
4.6. Agent shall, both during and after the engagement, keep all Confidential Information confidential and shall not use any of it except for the purpose of carrying out authorized activities on behalf of Company. Agent shall return to Company or destroy, as directed by Company, any proposal or Confidential Information upon request by Company at any time.
4.7. Agent covenants and agrees not to make any unauthorized use whatsoever of any trade secrets, Confidential Information or proprietary property of any third party, including without limitation any trade-marks or copyrighted materials, during the course of engagement.
4.8. Both parties agree that customer list information is considered Confidential Information and any access to this information will be restricted to persons bound by this agreement. Both parties agree they shall not publish, copy or otherwise disclose customer list information to others or permit its use to others outside of this agreement.
5.1. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY IN CONTRACT, TORT OR OTHERWISE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, PUNITIVE OR ECONOMIC DAMAGES OR LOST PROFITS, REGARDLESS OF WHETHER EITHER PARTY SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY. IF ONE PARTY TO THIS CONTRACT CAUSES DAMAGES TO THE OTHER PARTY, THE INJURED PARTY HAS THE RIGHT TO RECOVER THE COST OF THE DAMAGES FROM THE PARTY CAUSING THE INJURY. DAMAGE COSTS THAT COULD BE RECOVERED INCLUDE DIRECT DAMAGES, WHICH ARE DAMAGES THAT ARE A DIRECT RESULT OF WHAT HAPPENED, LIKE MEDICAL COSTS OR PROPERTY DAMAGE.
6.1. To the extent permitted by law, Agent agrees to indemnify and hold harmless Company, its officers, directors, shareholders, agents, and employees from and against all claims, losses, demands, liabilities, expenses, judgments, or causes of action of any nature for any relief, elements of recovery or damages recognized by law (including, without limitation, attorney’s fees, defense costs, and equitable relief), for any damage or loss incurred by Company arising out of, resulting from, or attributable to any acts or omissions or other conduct of Agent or its agents in connection with the performance of Agent’s or its agents’ duties under this Agreement. This indemnity shall apply even if Company is alleged to be solely or jointly negligent or otherwise solely or jointly at fault; provided, however, that a trier of fact finds Company not to be solely or jointly negligent or otherwise solely or jointly at fault.
6.2. Company shall have the option, at its sole discretion, to employ attorneys selected by it to defend any such action. Company shall provide Agent with timely notice of the existence of such proceedings and such information, documents and other cooperation as reasonably necessary to assist Agent in establishing a defense to such action.
6.3. These indemnities shall survive termination of this Agreement, and Company reserves the right, at its option and expense, to participate in the defense of any suit or proceeding through counsel of its own choosing.
7.1. Usage. Agent is permitted to use the Zingit Solutions brand and marketing resources available in the Agent’s section of the Zingit Solutions application.
7.2. Intellectual Property. Agent acknowledges Company is the owner of all associated intellectual and property rights therein, including without limitation, any and all copyrights, trademarks, logos, mask works, moral rights, patents, inventions, improvements, continuations, divisionals, trade secrets, proprietary rights and all other interests and rights as recognized by law or equity (collectively “intellectual property rights”). Agent does not gain any intellectual property rights as a result of this Agreement.
7.3. Other Obligations.
7.3.1. Agent agrees not to act on behalf of Company and not advertise Company’s products directly.
7.3.2. Agent agrees not to buy, bid on, or purchase advertisements that compete with Company including but not limited to: targeting ads for pay per click, SEO (search engine optimization), creating online properties that are similar or mimic, or give the appearance that they are directly from Company.
7.3.3. Agent agrees not to engage in the distribution of unsolicited bulk email (spam) mentioning or referencing Company.
7.3.4. Agent agrees not to represent themselves or Company or their relationship with Company in a false or misleading way.
7.3.5. Agent shall have no right or authority to set prices or rates, or to bill or collect for services by Company. Agent shall not add any additional fee, commission, or surcharge to rates and charges for services established by Company.
7.3.6. Agent shall not pay any fee or commission nor grant any type of rebate to any existing, prospective, or Referred Customer with respect to services provided by Company.
8.1. Assignment and Sale. This Agreement shall be binding upon and inure to the benefit of Agent and Company and their respective successors and assigns; provided, however, Agent may not sell, assign or delegate rights and obligations without prior written consent of Company. In the event Company is sold, Company may elect to buy out this Agreement by paying commission for one year’s worth of existing referrals at the time of buyout.
8.2. Governing Law and Venue. This Agreement shall be governed by, interpreted in accordance with and construed under the laws of the State of Nevada, without regard to any conflict of law provisions that would defer to the laws of another jurisdiction. No action may be brought arising out of this Agreement outside of the United States. Each Party agrees that all legal proceedings concerning the interpretations and enforcement of this Agreement and the transaction contemplated hereunder shall be commenced exclusively in the state and federal courts sitting in Nevada.
8.3. Relation of the Parties. Agent has no authority to enter into any Agreement or create any obligation on behalf of Company. This Agreement does not create any employer-employee relationship, agency, partnership or joint venture between the Parties. For purposes of defining its federal and state tax obligations, Company will not treat Agent as an employee with respect to the services performed and will not withhold or pay any taxes on behalf of Agent unless otherwise required by law pertaining to withholding taxes of independent contractors.
8.4. Notices. Any notices given by either party hereunder must be in writing and will be deemed to have been given upon their delivery if made by personal delivery, sent by facsimile (attached to it a certificate of acceptance), or email (attached to it a certificate of acceptance) and if sent by registered mail (attached to it a certificate of acceptance) it shall be deemed given 5 days after the delivery.
8.5. Entirety and Amendment. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, any representations or communications. The terms of this Agreement may not be amended except by a writing executed by both parties.
8.6. Force Majeure. Neither party will be in default if its performance is delayed or becomes impossible or impractical by reason of any cause beyond party’s reasonable control.
8.7. Severability and Waiver. If any provision of this agreement shall be declared by any court of competent jurisdiction to be illegal, void, or unenforceable, the other provisions shall not be affected but shall remain in full force and effect. Any delay in the enforcement by Company of its rights under this agreement shall not be construed as a waiver of its rights.
8.8. Name and Logo Use. With Agent’s implied consent, Company can use Agent’s Name, Logo and Testimonials for publicity, promotional and informational use on Company’s website or Company’s promotional material.