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SurfBest Internet Services, Inc..
46 Dow Highway, Suite 7 – Eliot, ME 03903 – (207)439-5588 FAX(207)439-4287 – surfbest@surfbest.net – www.surfbest.net
Independent Agent Agreement
THIS AGREEMENT dated this ________ day of _______, 200_ by and between SurfBest Internet Services, Inc. of York County in Eliot, Maine (hereinafter referred to as “Company”) and ______________________, with offices at ________________________________________ (hereinafter referred to as “Agent”.)
WHEREAS, Company has been designated a marketing representative to promote and market Internet products and services, and Company desires to contract with Agent to present said products and services to potential customers; NOW THEREFORE, in consideration of the covenants herein, and intending to be legally bound hereby, the parties agree as follows:
1. APPOINTMENT: Company hereby appoints Agent as an independent contractor to market and sell the services and products of Company. Services and products may be added or discontinued, at the sole discretion of Company. For the purpose of this Agreement, “Agent” shall include Agent, it’s officers, directors, shareholders, employees, agents, etc.
2. TERM: The term of this Agreement shall be for a period of twelve (12) months and shall be automatically renewed for successive twelve (12) month terms unless either party terminates this agreement by giving written notice of termination to the other, 30 days prior to renewal.
3. SALES: Agent shall solicit sales for Company. All sales shall be subject to approval by Company. Company reserves the right, in its sole discretion, to decline or accept any orders, to discontinue or change or cancel service to any customer at any time after acceptance, without liability to Agent, including, but not limited to Compensation to Agent.
4. COMPENSATION: Commissions on all Programs, shall be based on this schedule:
| Collected Revenue | Commission Rate |
| $1-$4999 | 11% |
| $5000 - $9999 | 12% |
| $10,000 - $24,999 | 13% |
| $25,000 - $49,999 | 14% |
| $50,000 - $74,999 | 15% |
| $75,000 - $99,999 | 16% |
| $100,000+ | 17% |
In no event shall Agent receive Compensation on any account, sale, etc., if Company does not receive full Compensation, based on Customer’s paid usage, for the account or accounts or sale or sales, regardless of reason Company is not paid. In no event shall Agent receive Compensation on any account, sale, etc. that was a Company account within the previous 90 days. In no event shall Agent receive Compensation on any account, sale, etc., that is a current Company account. In no event shall Agent receive Compensation on any unpaid account.
Commissions are paid if Agent is in Good Standing. To remain in Good Standing, Agent must have three paid accounts after six months and add at least one new account every twelve months.
Company will pay Agent a two percent (2%) override on all Sub-agents signed up by Agent. The Sub-agent must remain in Good Standing for Agent to receive override.
Commissions shall be mailed or sent by other means on the 25th of each month or the first business day thereafter for revenue applicable to the previous month. EXAMPLE: Revenue collected for June shall be paid on July 25. Commissions shall be paid on collected revenue.
Company will pay a fifteen percent (15%) penalty for late commissions. Late commission penalty percentage shall be based on the late commission amount.
All commissions and commission penalties are paid in accordance with all terms and conditions of this Agreement. If Agent has presented Company with one approved account during the previous 75 days, then there is a $2 assessment for each commission check. Otherwise there is a $5 assessment for each commission check.
Commissions continue on collected revenue even after the expiration or termination of this Agreement and commission payments continue to be governed by the terms of this Agreement.
5. INDEPENDENT CONTRACTOR: This Agreement does not constitute Agent as legal representative, joint venturer, partner or employee of Company for any purpose. Agent is not authorized to make any contract, agreement, warranty, statement or representation or take any other action which could establish any apparent relationship of agency, joint venture, partnership or employment with Company, and Company shall not be bound in any manner by any such contract, agreement, warranty, statement or representation made by Agent to any other person or entity nor with respect to any other action by Agent. In the event that Company shall become party to any suit, claim or demand by reason of the Agreement or by any act or omission of Agent, Agent shall indemnify and save Company, its shareholders, directors, officers, employees and Agents harmless from and against any and all damages, expenses, claims, fines penalties or losses, including reasonable attorney’s fees, incurred by or imposed on Company or in connection with any such suit, claim or demand.
6. OTHER CONTRACT(S): Agent agrees not to do business directly or indirectly with any of Company’s reseller(s), rebiller(s), aggregator(s), wholesaler(s), vendor(s), etc. except through Company during the term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement. Agent may have agreements with reseller(s), rebiller(s), aggregator(s), wholesaler(s), vendor(s), etc. that Company does not do business with. If Agent does do business, either directly or indirectly with any of Company’s reseller(s), rebiller(s), aggregator(s), wholesaler(s), vendor(s), etc., then Agent will pay all damages incurred by Company, directly to Company, upon demand. Damages shall include, but are not limited to; Company’s commissions and or gross margin on Agent’s sales and all collection fees, including reasonable attorney’s fees. Notwithstanding, Agent may have contracts with any of Company’s reseller(s), rebiller(s), aggregator(s), wholesaler(s), vendor(s), etc., if the contract(s) between Agent and any of Company’s reseller(s), rebiller(s), aggregator(s), wholesaler(s), vendor(s), etc., were executed prior to this Agreement being executed. The terms and conditions of this Section 6 extend to all future contract(s) and or agreement(s) executed by Company with any reseller(s), rebiller(s), aggregator(s), wholesaler(s), vendor(s), etc.
Agent warrants and represents that Agents’ representatives, employees, contractors and the like of Agent have agreed to and are bound by all terms of this Section 6.
7. SALES LITERATURE: All sales literature, promotional materials, applications and all other forms, web pages, scripts, ads, etc., that may be distributed or shown to potential or existing customers, must be approved, in writing, by Company, prior to their use.
8. CUSTOMERS: During the term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement, all customers including, but not limited to, information about customers, such as name(s), address(es), phone number(s), usage amount(s), email address(es), etc. (hereinafter referred to as CUSTOMERS) enrolled by Agent for Company’s Services are CUSTOMERS and property of Company and may not be transferred by Agent to another program or service that does not include Company. In the event this Agreement expires or is terminated, Company shall retain ownership of CUSTOMERS. All transfers must be approved, in writing, by Company. Once a CUSTOMER has been presented to Company, by Agent, Agent will not attempt to market to that CUSTOMER a service(s) or product(s) similar in nature to Company’s programs, services and products, for any reason whatsoever. EXAMPLE: If customer has SurfBest ISP services, then that customer cannot be sold a competing ISP service. However, that customer can be sold a phone card from a company not associated with SurfBest.
9. USE of SurfBest NAME: Any use of the name SurfBest or SurfBest Internet Services, Inc., in any form whatsoever, must be pre-approved by Company, except in the case where the names SurfBest and SurfBest Internet Services, Inc. are used on company approved literature.
10. MISCELLANEOUS: Agent agrees to follow all of Company's regulations and guidelines. Company reserves the right to change regulations and guidelines as may be necessary for the smooth operation of Company. By signing this Agreement and entering into this Agreement, Agent warrants and represents that it is not violating any other agreements it is a part to.
11. PROPRIETARY INFORMATION: Agent acknowledges and agrees that Agent will not use any proprietary information of any other company to in anyway benefit Company or any affiliated companies of Company. Agent agrees not to use the proprietary information of Company to benefit any other company. Agent acknowledges, represents and covenants that in entering into this Agreement and performing its services under this Agreement Agent will not be in breach of any other contract to which it is a party and will not violate any applicable federal or state laws.
12. LIMITATION OF LIABILITY: During the term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement: (a) Company’s liability to Agent shall be for payment of Compensation due in accordance herewith. Neither Company, nor its affiliates, subsidiaries, suppliers or employees, shall be liable to Agent or any third party for any special, indirect, incidental or consequential damages, arising from or relating to this Agreement, including, without limitation, damages claimed as a result of any temporary or permanent failure of availability or performance of Company’s services. Company’s liability for all claims, of any kind, arising out of or related to this Agreement, whether based on contract, tort (including, without limitation, strict liability and negligence), warranty or on other legal or equitable ground shall be limited solely to money damages and shall not exceed the amount of Compensation due Agent in accordance herewith. (b) Agent agrees to hold harmless and indemnify Company and employees, from any acts, whether willful, negligent, reckless, fraudulent or in any way a misrepresentation of this Agreement, that may be committed by Agent, its employees, subcontractors or representatives and for any breach of tis covenants or representations under this Agreement.
13. DISPUTE RESOLUTION: During the term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement, any disputes that the parties cannot resolve in a timely manner shall be submitted to binding arbitration with and under the rules and guidelines of the American Arbitration Association, with arbitration to occur at a location and time solely determined by Company.
14. FORCE MAJEURE: In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles and/or disputes, inability to produce materials, failure of power, restrictive governmental laws or regulations, riots, insurrections, war or other reason the party delayed in performing work or doing acts required under the terms and conditions of this Agreement, then such performance of such act shall be excused for the period of delay and the period of performance of any such act shall be extended for a period equivalent to the period of such delay.
15. EVENT OF DEFAULT: Any of the following shall be Events of Default hereunder: (a) The breach, by either party, of any covenant, term or condition of this Agreement, if such breach is not cured within seven (7) days after written notice thereof; (b) Either party’s institution for relief under the Bankruptcy Code or if same is instituted against either party or if either party becomes insolvent; (c) If either party violates any law, ordinance, rule or regulation of a government agency which materially adversely effects either party’s performance hereunder and is not cured within seven (7) days after written notification thereof; (d) Fraudulent or deceptive conduct, by either party, materially effecting performance under this Agreement; (e) Agent directly or indirectly does business with any one or more of Company’s reseller(s), rebiller(s), aggregator(s), wholesaler(s), vendor(s), etc. other than through Company.
16. TERMINATION: (a) This Agreement may be terminated without cause, by either party hereto, upon thirty (30) days written notice to the other party. In the event of such termination without cause, Agent shall continue to receive Compensation in accordance with the terms and provisions of this Agreement. (b) This Agreement may be terminated in the event Agent is in Default, as defined in Paragraph 15, subparagraph (a) or (b) or (c) or (d) or (e) hereunder, and Agent shall no longer be entitled to receive Compensation in accordance herewith.
17. GOVERNING LAW: During the term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement, this Agreement shall be governed and construed in accordance with the laws of the State of Maine.
18. SEVERABILITY: If any clause or section of this Agreement shall be determined to be unenforceable or unlawful, the remaining terms shall remain in force and a suitable substitute with the same meaning shall be substituted.
19. HEADINGS: Headings are used in this Agreement for convenience only and are not to be used to interpret any part of this Agreement.
20. ENTIRE AGREEMENT: This contract contains the entire agreement between the parties with respect to the subject matter hereof. Any representation, promises or conditions in connection herewith and not incorporated herein shall not be binding on either party. This Agreement supersedes all prior understanding, representations, negotiations, promises and agreements relative to the subject matter hereof. No modification, ratification or waiver of the Agreement, or any of its provisions, or any notice of termination hereof given by the parties shall be binding unless made in writing, signed by an officer of each party.
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Agent Signature
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David B. Allen, President, SurfBest Internet Services, Inc
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