MASTER TERMS AND CONDITIONS

1.             APPOINTMENT OF AGENT.

a.                Appointment. PRINCIPAL appoints AGENT 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 AGENT 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 AGENT of such additions or deletions and will be bound by any sales made prior to such notice.  AGENT agrees and acknowledges that PRINCIPAL markets and sells the Principal Services through direct sales, indirect sales (including other AGENTs of Principal), and other sales channels. AGENT 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 AGENT following such termination date, except as expressly provided in this Agreement, including Section 7 hereof.

b.                Compensation. In exchange for AGENT’s performance under this Agreement, PRINCIPAL agrees to compensate AGENT 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. AGENT 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 AGENT.  AGENT shall be solely responsible for filing all tax returns and paying any income, social security or other tax levied upon AGENT with respect to the payments made to AGENT pursuant to this Agreement.  PRINCIPAL is, and throughout the term of this Agreement shall remain, an independent contractor and not an employee, partner or agent of AGENT or its affiliates or parent corporations or subsidiaries.  AGENT shall not be responsible for withholding federal, state or municipal income, or any other taxes from the payments made by AGENT 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 AGENT 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 AGENT receives Commissions as a result of the sale of the Services to such customer by AGENT.

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 AGENT.

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).

AGENT Services:  AGENT products and services provided by AGENT prior to the date of this Agreement.

Services:  Collectively, the Principal Services and the AGENT Services.

Order:  Orders taken by AGENT 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 AGENT, from AGENT 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.             AGENT RESPONSIBILITIES AND RESTRICTIONS.

a.                AGENT shall use commercially reasonable efforts to identify, cultivate, and generate Orders from Customers for Services.  No quote, estimate, proposal or Order given or taken by AGENT 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.

b.                AGENT will be responsible for managing its daily sales, marketing and operational needs.

c.                AGENT 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.  AGENT will not make any representations or warranties to third parties (including, without limitation, End Users, Clients, Customers, other AGENTs and sub-AGENTs) 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 AGENTs and sub-AGENTs) on AGENT’s or any Principal Provider’s behalf. 

d.                AGENT agrees to conduct [himself or herself] at all times with due regard to public conventions and morals. AGENT 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 AGENT agreement in place. AGENT acknowledges and agrees that this provision is necessary to protect PRINCIPAL’s goodwill in the community in which AGENT represents it and thus to protect the profitability of PRINCIPAL’s business.

e.                AGENT has total control of the management of AGENT's affairs, subject to the limitations contained in this Agreement. AGENT is not a legal representative of PRINCIPAL for any purpose whatsoever.  AGENT 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 AGENT for any purpose whatsoever. 

f.                 During the Term of this Agreement and for a period of twelve (12) months thereafter, AGENT 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 AGENT Customers, who subscribe to the Principal Services as a result of PRINCIPAL’S or AGENT’s sales and marketing efforts during the Term for the purpose of switching any of said Customers to another competing provider or master agency unless, without solicitation by AGENT or its agents 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 AGENT’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 AGENT 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 agents or representatives, such Customer expressly requests to do so.

5.             PRINCIPAL RESPONSIBILITIES. 

a.                PRINCIPAL shall pay compensation to AGENT 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 forwarded by AGENT to PRINCIPAL.  PRINCIPAL shall process and submit Orders to Principal Providers.

d.                PRINCIPAL shall provide monthly reports to AGENT which list the active Orders generated by AGENT 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 AGENT 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 solicited by AGENT 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 AGENT 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 AGENT 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 AGENT; 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 AGENT in advance and in writing.

6.             COMPENSATION.

a.                PRINCIPAL shall pay AGENT, and AGENT shall accept in exchange for the duties that AGENT is required to perform hereunder, a Commission on the sale of the Principal Services solicited by AGENT 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.                AGENT’s Commission shall be deemed earned when PRINCIPAL receives actual payment for the Services sold, and AGENT’s Commission shall be calculated based upon the commission received by PRINCIPAL.  AGENT 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 AGENT.  PRINCIPAL agrees that Commissions will be paid to AGENT within thirty (30) days of PRINCIPAL's receipt of payment from the respective Principal Provider. 

c.                AGENT agrees to submit, in writing, to PRINCIPAL any dispute about a Commission within fifteen (15) business days of AGENT'S receipt of a statement of Commissions from PRINCIPAL.  Statements of Commissions from PRINCIPAL to AGENT 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 AGENT if AGENT does not have enough anticipated future Commissions to cover such chargeback.  If there are insufficient future Commissions to cover the chargeback amount, then AGENT shall immediately pay to PRINCIPAL the amounts due to PRINCIPAL as a result of the chargeback within fifteen (15) business days of notice to AGENT.

e.                If overbilling or overpayment to AGENT 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 AGENT with respect to the sale of such Principal Service shall be deducted from any future Commissions to be paid to AGENT.  If there are insufficient future Commissions to cover the chargeback amount, then AGENT shall immediately pay to PRINCIPAL the amounts due PRINCIPAL as a result of the chargeback within fifteen (15) business days of written notice to AGENT.

f.                 PRINCIPAL shall have the right to charge back to or set‑off against AGENT’s Commission any amounts owed to PRINCIPAL by AGENT under this Agreement or any other agreement between PRINCIPAL and AGENT upon providing AGENT with written notice of the amount of the chargeback or set-off and in reasonable detail the reasons for the same. AGENT 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.                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 AGENT Commissions received by PRINCIPAL on the sale of the Services to Customers solicited by AGENT prior to the termination of this Agreement.

h.                AGENT 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 AGENT 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.

i.                 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 AGENT at least thirty (30) days prior to any termination of a Principal Provider (to prevent AGENT from selling Principal Services that have been terminated).

j.                 EVERGREEN. PRINCIPAL will continue to pay AGENT 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. AGENT will continue to pay PRINCIPAL a residual commission for as long as those Customers, earned during the term of this agreement, remain customers of AGENT, unless the Service is terminated by the Customer.

7.             TERMINATION.

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 AGENT if AGENT 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.

i.                 Effect of Termination. Upon termination of this Agreement, AGENT and its personnel will immediately cease promoting, marketing, and otherwise selling PRINCIPAL Services through PRINCIPAL.  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 solicited by AGENT prior to the termination of this Agreement will continue to be paid to AGENT.

 

8.             TARRIFS 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.  AGENT shall represent and sell the Services to potential customers only as the Principal Services are described in the applicable Tariffs.  Tariffs and informational materials relating to the Services may be changed by PRINCIPAL in its sole discretion.  PRINCIPAL shall use its commercially reasonable best efforts to provide AGENT at least thirty (30) days written notice of any change to the Tariffs in order that AGENT can communicate changes to the Customers.

9.             LIMITATION OF LIABILITY. IN NO EVENT, SHALL PRINCIPAL OR AGENT BE LIABLE TO THE OTHER PARTY, ANY EMPLOYEE, AGENT 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.

 

10.           INDEMNIFICATION.

a.             Indemnification by Principal.  Principal shall defend (if required by and with counsel reasonably satisfactory to AGENT), indemnify and hold AGENT, its parent, subsidiary and any other affiliated or related companies of each, and the officers, owners, directors, agents, 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, agents, 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 AGENT.  AGENT 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, agents, 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 AGENT, its officers, directors, agents, representatives, vendors, suppliers or employees; or (ii) any failure of AGENT to perform its obligations under this Agreement; or (iii) any other failure of AGENT to comply with the obligations on AGENT’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 AGENT 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 AGENT 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 AGENT.  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.

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