Terms and Conditions

DEFINITIONS OF TERMS USED HEREIN:

1. (A) “Mobile SMS Marketing-service” or “Service” (as used throughout this Agreement) is a text message marketing service utilizing current mobile phone technology.
2. (B) “After-Sales Agreements” and “Special Marketing Promotions” (as contained in Article 1, ¶ 1.03 and elsewhere in this Agreement) shall mean: any post-sales agreement(s) or promotions that may, from time to time, come into effect by the Company, and will be addressed on a case by case basis should such have any bearing on this Agreement. 
3. (C) “Products” (as contained in Article 2, ¶ 2.01(G)) and elsewhere in this Agreement) shall mean: any future services or products that the Company may introduce other than the existing Mobile SMS Marketing-service described above. 
4. (D) “Reasonable Effort” (as contained in Article 2, ¶ 2.01(H) and elsewhere in this Agreement) shall mean: the Representative’s best efforts to diligently pursue all potential sales in a prudent, professional and above all else, in a completely ethical and legal manner so as to ensure that the Representative’s duty of loyalty to the Company and the Company’s good name and reputation are preserved. 
5. (E)  “Initial Contract” (as contained in Article 4, ¶ 4.01 – base commission, and elsewhere in this Agreement) shall mean: the time when a purchaser’s payments have been made and cleared by Company’s banking instutiton.
6. (F) “Territory” (as contained in Article 5, ¶ 5.03(C) , and elsewhere in this Agreement) shall mean the United States and Canada.

 
NOW, THEREFORE, in consideration of the mutual agreements and obligations and covenants herein contained and in accordance with the definitions herein provided, the parties agree as follows:

ARTICLE 1: APPOINTMENT

1.01  Representation Appointment. Company hereby appoints Representative within the Territory to be its representative of the Mobile SMS Marketing-service.  

1.02  Sales are subject to the "Commission Schedules," described in Article 4.0 hereof. 

1.03  Excluded Sales. This Agreement excludes all "after sales agreements" and sales such as special marketing promotions. Commissions for such will be agreed separately.

1.04  Independent Contractor. In making this appointment, Representative is and shall remain, an independent business contractor and nothing herein shall be deemed to imply or create a relationship of employee and employer.  Accordingly, all compensation of any type or nature made to Representative by Company shall be made to reflect that Representative is an independent contractor (IRS form W-9 shall be completed to reflect 1099 status). 

1.05   Representative has no authority to enter into any agreement or contractual obligations whatsoever on behalf of the Company and shall not represent to anyone at any time that he/she/it has the power or authority to enter into any agreements or contractual obligations on behalf of Company unless Company provides a separate letter of authorization authorizing Representative to execute agreements on behalf of Company.

ARTICLE 2: SCOPE OF WORK

2.01  Representative's Obligations. During the term of this Agreement, Representative agrees that he/she/it will perform the following:

(A)  develop and maintain contacts necessary to solicit, develop and promote the sale of the service actively;

(B) act as a liaison with Company's potential customers and/or customers' procurement and engineering staffs with respect to developing procurement specifications and ascertaining performance requirements of any sales of the service.

(C)  obtain and transmit to Company information pertaining to the technical needs and requirements of potential customers as is to the service;

(D)  provide assistance to Company in discussions, preparations of proposals, and negotiation held leading to selling the service therein;

(E)  pay all costs of conducting Representative's business, including, but not limited to: any and all necessary occupational license(s); business license(s); telephone/fax/e-mail/internet services; fixed business address; and any other normal costs associated with the conduct of any business per State and Federal requirements;

(F)  assist Company in obtaining any relevant financial or other information as requested by Company regarding existing and potential customers with whom Representative intends to sell the Products;

(G)  provide his/her/its best effort to assure active participation and attendance by Representative in sales meetings and training sessions held by Company; and

(H)  provide a designated phone number for contacts or potential customers to call with professional answering service or voice mail.

ARTICLE 3: COMPANY’S OBLIGATIONS

3.01  During the term of this Agreement, Company agrees to:

(A) provide Representative written materials relating to the Service necessary to support product promotion and sales efforts;

(B)  respond within reasonable time to requests for price and delivery of the Service and/or Products covered by this Agreement;

(C)  provide Representative with current information as to technical improvements in the Service and/or Products covered hereunder; and

(D)  make timely payments of commission and fees earned as specified herein.

(E) To prepare proposals and other paperwork arising there from upon reasonable notice by Representative and upon Representative providing accurate and sufficient information to Company.

ARTICLE 4: COMPENSATION

4.01  Commissions. The commissions due and payable, as described in this Article, to Representative for a sale of a new Mobile SMS Marketing accounts, including White Label accounts are based on the following payment table:

Commission: 30% per sale of the initial contract. Each renewal period 30%.

Set up fee commission: 30%.  New Account Executive Finder fee: 50%.

Text message purchase commission: 10% of each one time purchase of messages.

2nd tier commission 5%.

(A)  Payment of Commissions. The Sales Commissions shall be paid to Representative as follows: Representative shall be paid the above commission(s) after receipt of payments tendered by the purchaser. For example, if the purchaser agrees to pay 3 months service fees down upon execution of a service agreement and half down after three months from the execution, Representative shall be paid his/her/its Sales Commission upon each such payment by such purchaser. It being understood and agreed to by both parties herein that Commissions for all payments received between the 1st and 15th of the month will be paid on the 1st business day of the next month and commissions for all payments received between the 16th and 30th/31st of the month will be paid on the first business day after the 15th of the next month.                

(B)  Sales Exclusions. The sales price upon which the Sales Commission is based shall be exclusive of the following:

1. (i) Transportation, shipping and handling, including but not limited to: packing; freight forwarding charges; and insurance;

 
(ii) Taxes and duties of any kind;

(iii) Credits and allowances; special discounts if not agreed with the Company in writing;

(iv)  any portion of a contract that is executed by a customer directly with Company with 
no involvement by Representative. Such portions may include changes to the 
original quantity or scope of work as indicated in the initial contract.  

4.02   Prior Contacts. Representative understands that other sales calls may have been made to the same potential customer by other representatives of Company, including formal proposals for which a prior claim to the Commission(s). In a case such as this, a split commission may apply.

4.03 Commission Splitting. In any situation where there is a question of prior sales calls, the splitting of any and all commissions described herein, or relative to any other commission dispute, the Company shall make a determination of disposition of commissions, including split commissions with the intention of dividing the same fairly between and/or among all parties fairly. The Company's decision shall be final, except that Representative, or others involved in the sale, shall have a right to appeal the decision in writing stating why the determination is considered unfair. Company's Chief Executive Officer and two other company officers shall review the decision based on such appeal and the decision on the appeal shall be final on all parties, with no other remedy of any kind or nature to be afforded to the Representative.

4.04  Commission Modification. The Commissions may be subject to modification, upon thirty (30) days written notice to Representative. No such modification shall apply to any proposal for which a customer has signed a Client Agreement.

4.05  Overpayments. Any overpayment of any of the commissions described herein by Company to Representative resulting in a downward adjustment of the price for the purchase of the Products, any failure to receive payment, repudiation or failure to complete the terms of any contract relating to the Products or Services at no fault of Company, Representative, upon notice from Company shall ensure such overpayment to be repaid.  Such “overpayments” would include chargebacks made by a client.  In addition to any other remedy Company may have, Company may withhold from subsequent commissions due Representative the amount of such over payment. Notwithstanding the foregoing if any contract by a Company customer is fulfilled in its entirety and Company is paid in full thereon, such contract shall not be subject to the repayment obligations described in this paragraph.

ARTICLE 5: TERM OF AGREEMENT AND TERMINATION

5.01  Term. The term of this Agreement shall be one (1) year from the date of this Agreement (the "Term"). The Term may be extended upon mutual agreement of the parties hereto, for up to a period of two (2) additional one (1) year Terms upon mutual agreement of the parties to this Agreement reduced to writing.  

5.02  Termination By Either Party. This Agreement may be terminated by either party at least sixty (60) days before the date of expiration of this Agreement or any extension thereof of the terminating party's intention to terminate.

5.03  Company Termination. Company may terminate this Agreement by providing five (5) days written notice to Representative if: 

(A)    Representative  fails  to  comply   with  the  terms  of  this Agreement;

(B)   Representative shall become insolvent, bankrupt or if any proceeding by or 
against Representative as a debtor is commenced, or there is a change in 
ownership or control of Representative's business, whether voluntary or by 
operation of law; 

1. (C) Representative shall have violated the criminal provisions of applicable laws or 

  resolutions within the Territory; 

1. (D) Company is contacted by no less than three of Representative’s clients and

  indicates that Representative is not meeting their needs and/or acting in a 
professional manner; and/or

1. (E) Company determines, at its sole and complete discretion, that Representative is 

  not acting in the best interest of Company and/or is acting in a manner that Company feels is detrimental to the good name and professional standing the 
Company maintains in the Territory.
    
5.04  Payments Upon Termination. Termination of this Agreement shall not relieve either party of the obligation to pay to the other any amounts payable at the time of termination or which were earned up to the point in time that the termination became effective.  IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IF THE COMPANY TERMINATES REPRESENTATIVE UNDER § 5.03 ABOVE, THAT REPRESENTATIVE WILL LOOSE ANY AND ALL CLAIMS AND OR RIGHTS TO COLLECT ANY COMPENSATION HE/SHE/IT MAY OTHERWISE HAVE BEEN ENTITLED TO.

5.05  Representative's Remedies. Upon termination of this Agreement for whatever reason, Company's sole liability to representative, whether by claim or right in court or otherwise, shall be to pay previously earned but unpaid commissions to Representative, except as set forth in this section.  In no event shall Company be liable for any unemployment claim(s) – as Representative is not an employee – nor any consequential or punitive damages of any kind for:

(A)   lost profits, real, anticipatory or otherwise; 
(B)   lost goodwill, creation of clients, damage to reputation; 
(C)   advertising, sales; and/or
(D)   any other cost incurred by the Representative, including but not limited to 
attorneys’ fees and costs or any kind or nature.

ARTICLE 6: CONFIDENTIALITY AND CONFLICT OF INTEREST

6.01 Confidential Information.  During the Term, Representative agrees not to divulge to anyone, except in the performance of his/her/its duties hereunder, or make use of information and knowledge relating to:

(A) Any projects for Company upon which Representative shall have worked or shall be working;

(B) Knowledge of any of Company's business, which Representative shall have obtained during the Term which is not generally known in the public domain; or

(C) Any proprietary or closely held information of Company not generally available to third parties or in the public domain.

It is expressly understood and agreed to by the parties herein that all Company information is not generally known to or readily ascertainable to the competitors of the Company or the general public and, as such, such information is deemed confidential and a trade secret, as such term is defined within the meaning of Florida Statutes § 688.02 inter alia, entitling Company to all protections available under both Florida and Federal law.

6.02 Non-Competition. Representative may render service to others in a consulting, agency or representative capacity provided that Representative shall not serve any business or organization, or engage in any business on Representative's own behalf which sponsors, produces or sells products or services which compete with or conflict with the Products, Company's business and/or requires contact with any customer, client or end user of the Products and/or Services.  The period of time to which this section shall apply shall be no less than two (2) years from the last date Representative is associated with Company.

In the event Representative breaches his/her/its obligations under this section, in addition to any other rights and remedies provided for herein, Representative agrees that Company shall be entitled to damages and to obtain an immediate injunction for violation of Florida’s Uniform Trade Secrets Act, as well as damages for Tortious Interference, Breach of Fiduciary Duty/Duty of Loyalty and/or any other related cause of action against Representative for any breach hereof.  Representative further agrees to pay Company for any and all attorneys’ fees and costs associated with the pursuit of any/all the above remedies.

ARTICLE 7: FORCE MAJEURE

7.01 Force Majeure.  Neither party shall be considered in default or held responsible  to  the  other  on  account  of  or  arising  out  of  the interruption of its performance under this Agreement due to any of the following events: Epidemics, fire, explosion, flood, unusually severe weather, or any other extraordinary natural disturbance, act of God, or of the public enemy, any civil commotion, riot, insurrection, terrorism, or hostilities, war (declared or otherwise) conditions that may adversely affect the safety of such party's personnel, restrictions due to quarantines, blockades, embargoes, unavailability of materials; unforeseen market shortages or any other cause beyond the reasonable control of such party that arise without the fault or negligence of such party, and that result in the delay of performance hereunder.

7.02 Delays. Any delay resulting from the events above shall be deemed excusable. The party whose performance will be delayed by such events will use its best efforts to notify the other with five (5) days after the occurrence of such events and within five (5) days after the cessation thereof. The party whose performance is affected will diligently proceed to perform to the best of its ability upon the resolution of the "Force Majeure" event.

ARTICLE 8: GENERAL PROVISIONS

8.01  Governing  Law.  The laws of the State of Florida shall govern this Agreement.

8.02  Entire Agreement. This Agreement supersedes and replaces all prior sales or representation agreements between Company and Representative and cannot be assigned or transferred by either party without the prior written consent of the other.

8.03  Indemnification. Representative shall indemnify and hold harmless Company from any liability, loss, or damage whatsoever, for injuries (including death) to employees or principals of Representative arising out of Representative's performance of this Agreement or from any losses whatsoever arising out of Representative's breach of this Agreement, including, but not limited to situations and/or claims from customers, individuals and/or businesses solicited by Representative, any government fines/penalties imposed against Company for the acts of the Representative and/or any costs incurred as a result of the wilful or negligent conduct of Representative.

8.04   Conduct. Representative shall at all times conduct itself in accordance with the laws of the Territory and shall insure that Representative's actions do not violate any regulations to which Company is bound. Representative agrees to provide to Company upon request a certification that Representative has not violated the provisions of any such regulations.

8.05  Notices. Any notices or order provided for in this Agreement shall be provided in writing to the other party at the address first set forth above.

8.06  Subsequent Questions. Although this Agreement attempts to address all contributions of circumstances, it is possible that questions will arise which are not adequately answered by this Agreement itself. In such cases, the specific decision of Company shall be binding.

8.07  Attorneys' Fees and Costs.  In the event of litigation, the Company shall have the right to receive from the Representative its court costs and reasonable attorneys' fees incurred as a result of the litigation.

8.08  Assignment. Representative may not assign this Agreement to any third party person or individual without the express written consent of Company.

8.09  Amendment. This agreement shall not be amended, modified and/or altered without the express written consent of each party to this Agreement.