CONSULT IP AGENT AGREEMENT
TERMS AND CONDITIONS
1. DEFINITIONS. Terms appearing in this Agreement and the Exhibits are defined either in this Agreement or in Exhibit A. Words or expressions not defined are to be construed as having the meaning generally attributed to them in the Telecommunications, Hosting and Information Technology Services industries.
2. APPOINTMENT. Consult IP hereby appoints Agent as an independent marketing and sales Agent of Consult IP for the sale of Services to qualified End Users in Certified Jurisdictions, and Agent hereby accepts such appointment, subject to the terms, conditions and limitations set forth herein.
3. SCOPE OF AUTHORITY; RELATIONSHIP CREATED; LIMITATION OF SUB-CONTRACTORS.
3.1 This Agreement does not contemplate, create, constitute or make a partnership or joint venture, or an employer-employee relationship, between Consult IP and Agent. In entering into and carrying out its obligations under this Agreement, Agent is, and shall always operate as, an independent contractor.
3.2 Agent shall be solely responsible for any and all costs incurred by Agent of any kind or type whatsoever including, but not limited to, the following: (a) any and all costs associated with running Agent’s business; and (b) any and all costs incurred by Agent in procuring, promoting, marketing and/or soliciting orders from End Users.
3.3 Consult IP hereby grants to Agent authority during the Term of this Agreement to promote the sale of, to solicit inquiries about and to obtain orders for Services to qualified and potentially qualified End Users in Certified Jurisdictions in accordance with the terms and conditions set forth herein and the Exhibits.
3.4 Agent shall act solely as an independent marketing and sales Agent in soliciting and obtaining orders for and otherwise promoting the sale of Services.
3.5 Agent shall not market or sell Services to any person or entity that (a) Agent knows or discovers is an End User and (b) is not then one of Agent’s Accounts.
3.6 Agent shall have no right, authority or power, and shall not represent itself as having the right, power or authority, to create any contract or obligation, express or implied, binding upon Consult IP, including but not limited to, accepting orders for Services, agreeing to or offering prices, terms or conditions of sale that are not in compliance with the prices and terms and conditions that Consult IP provides to Agent. Agent shall make no representations regarding its relationship with Consult IP other than that Agent has been retained by Consult IP as an independent contractor.
3.7 Agent is prohibited from utilizing Sub-Contractors as independent marketing representatives of Consult IP’s Services unless Agent causes such Sub-Contractor to sign an agreement with Agent whereby Sub-Contractor agrees that:
(a) Sub-Contractor shall not misrepresent and/or misquote the quality, Service, Supplier, pricing or any other element or fact with respect to the Services being offered by Consult IP;
(b) Sub-Contractor acknowledges that any agreement entered into with Agent does not contemplate, create, constitute or make or form any relationship with, or partnership or joint venture between, Consult IP and said Sub-Contractor;
(c) Sub-Contractor will not offer prices, terms or conditions of sale which are not in compliance with those that Agent has been authorized to sell;
(d) Sub-Contractor will take no action which would compromise the trademarks, Service marks, trade names, copyrights or other intellectual property rights of Consult IP or any Associated Supplier;
(e) Sub-Contractor will comply with all obligations and policies set forth in the current Order, Policies and Procedures Statement, as it may be amended from time to time;
(f) Sub-Contractor will comply with all other obligations and policies imposed upon Agent under the terms and conditions of this Agreement; and
(g) Sub-Contractor only has rights against Agent and that Consult IP has no liability, relationship and/or responsibility of any nature or of any kind to Sub-Contractor.
Agent agrees that in the event a Sub-Contractor violates any term of the agreement between Agent and Sub-Contractor, as is required by this Section 3.7, Agent shall immediately cease taking orders from such Sub-Contractor and shall immediately notify Consult IP of the nature, scope and other details of Sub-Contractor’s activities as may be reasonably requested by Consult IP. Furthermore, in the event a Sub-Contractor violates any term of the agreement between Agent and Sub-Contractor, as is required by this Section 3.7, Consult IP reserves the right to immediately terminate this Agreement with Agent.
4. MARKETING AND PROMOTIONAL MATERIALS.
5.1 All marketing and promotional materials used by Agent in connection with the sale of Services shall not misrepresent or misstate the Services and/or pricing of such Services. All marketing and promotional materials used by Agent in connection with the sale of Services must be provided by Consult IP or pre-approved by Consult IP for use. In no event shall any such marketing materials use the name, Service marks, trademarks, copyrights or other intellectual property of any Associated Supplier.
5.2 All marketing and promotional materials used by Agent shall comply with all obligations and policies set forth in the current Order, Policies and Procedures Statement.
5.3 Agent shall take no action through the use of marketing and promotional materials or otherwise, that would compromise the name, Service marks, trademarks, copyrights or other intellectual property of Consult IP or any Associated Supplier.
5. ORDER PROCESS PROCEDURES; ORDER LIMITATIONS.
6.1 All orders for Services submitted by Agent to Consult IP shall comply with all obligations and policies set forth in the current Order, Policies and Procedures Statement. Agent understands and agrees that Consult IP, in its sole discretion, reserves the right to change and/or modify said Order, Policies and Procedures Statement.
6.2 Agent shall only solicit End Users or potential End Users in Certified Jurisdictions. Agent shall only submit orders for Services from qualified End Users or potential qualified End Users located in Authorized Selling Areas.
6.3 End Users or potential End Users must be located in areas where one of Consult IP’s Supplier’s offers their Services.
6. ACTIVATIONS LIMITATIONS AND DELAYS. Consult IP shall exercise reasonable efforts, consistent with the Telecommunication and Hosting Industries’ standard practices, to provide to each End User on a timely basis the Services ordered by Agent on behalf of such End User. Agent acknowledges that even if an order for Services is accepted by Consult IP, such order may be rejected or delayed for any reason or for no reason at all, by an Associated Supplier. Consult IP shall not be liable for any provisioning or activation delays caused by any such Associated Supplier.
7. SERVICE AUTHORIZATION. Agent shall only submit to Consult IP an order for Services with respect to a particular End User after Agent has obtained from such End User authorization in accordance with the policies and procedures set forth in the Order, Policies and Procedures Statement.
8. CUSTOMER CHANGES AND TERMINATION. Agent acknowledges and agrees that Consult IP's Suppliers, as the providers of the Services, shall have the unilateral right to change and terminate Service to an End User per their respective terms and conditions.
9. COMMISSIONS. Consult IP shall pay Agent on a monthly basis in accordance with the terms set forth in the Commission Policies and Procedures Statement. Notwithstanding anything else contained herein to the contrary, all commissions are based on a percentage of the End User’s actual collected monthly billings. Regulatory fees, surcharges, taxes and any other amounts required to be collected by Consult IP’s Suppliers by law are excluded from the calculation of commissions.
10. INDEMNIFICATION. The Parties agree to indemnify, defend and hold each other and their respective officers, directors, employees and representatives harmless from and against any and all losses, claims, demands, actions, suits, liabilities, costs, counsel fees, penalties, fines and damages (including, but not limited to attorney’s fees) resulting from or arising out of: (a) any material breach by a Party of any representations, warranties or covenants of this Agreement and (b) the Party’s marketing, advertising, sales or promotional activities; (c) any infringement or violation by a Party of Confidential Information or any right of third parties; and (d) any activities of either Party which subjects the other Party to any liability or suit by any public or private entity. For the avoidance of doubt, the term “Party” as used in this Section includes any Sub-Contractor.
11. CONFIDENTIALITY. Agent agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to Agent, including, but not limited to Consult IP End User names, addresses and all other associated information, CPNI, commission schedules, rates and/or non-public information learned in the course of performing obligations under this Agreement (the “Confidential Information”). Confidential Information also includes, but is not limited to, the terms and conditions of this Agreement, all non-public information regarding the business of Consult IP, and any other information designated by Consult IP orally or in writing as confidential or proprietary. Except as provided for in this Agreement, Agent shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Agent shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations.
Without the prior written consent of Consult IP, Agent shall not disclose to any other person or entity any Confidential Information of Consult IP unless such disclosure is pursuant to obtaining Regulatory Approvals or unless otherwise required by law or a court of competent jurisdiction.
Confidential Information shall remain the property of Consult IP and, at the written direction of Consult IP, shall be returned to Consult IP or destroyed upon termination of the performance pursuant to this Agreement on the basis of which such Confidential Information was provided. Notwithstanding the foregoing, Agent shall be entitled to maintain a copy of its End User names and associated information even though they may become End Users.
The provisions of this Section shall remain in full force and effect indefinitely after expiration or termination of this Agreement. Violation of the foregoing provision by Agent shall entitle Consult IP to injunctive relief for specific performance of the obligations described in this Section without a showing of irreparable harm or injury and without bond. For the avoidance of doubt, the term “Agent” as used in this Section includes any Sub-Contractor.
12. TERM AND TERMINATION OF AGREEMENT.
12.1 The duration of this Agreement shall be as follows:
(a) The initial term of this Agreement shall be for one (1) year (the “Initial Term”).
(b) At the conclusion of the Initial Term all further Extensions shall be contingent on Agent meeting the productivity levels for Renewal Terms set forth in The Commission Policies and Procedures Statement. If Consult IP receives corresponding commission payment and our Agent is active and in compliance, we will pay you, our Agent.
(c) Agent may terminate this Agreement at the end of the Initial Term or at the end of the then current Extension, in which case this Agreement shall expire at the end of that term. Notwithstanding anything contained in this Agreement to the contrary, Consult IP reserves the right to modify The Commission Policies and Procedures Statement in whole or in part as a condition precedent to any Extension. Failure of Agent to agree to any modification of The Commission Policies and Procedures Statement pursuant to this provision shall result in the expiration of this Agreement at the end of the then current term.
(d) The Initial Term and the Renewal Terms shall be collectively referred to as the “Term”.
(e) This Agreement shall be automatically extended for one year. Consult IP can notify the Agent in writing within one hundred twenty (120) days prior to the end of the initial term their wish to terminate this agreement for any reason. If no notification comes prior to the expiration then the agreement renews automatically.
12.2 Notwithstanding anything in Section 12.1 to the contrary, Consult IP may terminate this Agreement at any time, by written notice to Agent, including, but not limited to, for any of the following:
(a) Failure by Agent to meet productivity levels as set forth in the Commission Policies and Procedures Statement during the initial term or any Extension; or
(b) The instigation of any action, suit or proceeding or the adoption or issuance of any law, regulation, ruling or determination, including, but not limited to, any regulation, ruling or determination of the FCC or any public utility commission or other federal or state regulatory agency, any of which has a likelihood of materially or adversely affecting the business of Consult IP or the ability of Consult IP to render all or a material part of the Services; or
(c) Any misconduct or negligence of Agent or of a Sub-Contractor which adversely affects the business or good name of Consult IP or Agent; or
(d) Any breach by Agent of any term of this Agreement or the Exhibits; or
(e) Any event whereby Agent submits an order without first obtaining proper authority from the End User for said order as is required by the Order, Policies and Procedures Statement; or
(f) Any action of a Sub-Contractor which, if it had been done directly by Agent would permit Consult IP to terminate this Agreement.
12.3 In the event this Agreement is terminated by Consult IP for any reason other than pursuant to Section 12.2, Agent shall continue to receive commissions until the end of the Initial Term or the then current Extension under Section 12.1, as the case may be, notwithstanding that this Agreement has been sooner terminated.
12.4 In the event this Agreement is terminated by Consult IP pursuant to Section 12.2(a) above or Agent’s (or Sub-Contractor’s) misconduct, negligence or breach, Agent shall forfeit any commissions otherwise due to Agent from and after the date of the termination.
12.5 Notwithstanding anything in Section 12.1 to the contrary, Agent may terminate this Agreement at any time, with sixty (60) days written notice to Consult IP. In the event this Agreement is terminated by Agent for any reason, Agent shall forfeit any residual commissions otherwise due to Agent from and after the date of the termination.
12.6 Except as expressly provided for in Section 12.3, no commissions shall be paid after the termination or expiration of this Agreement.
13. CONVENANT NOT TO COMPETE.
13.1 In consideration of the provisions of this Agreement, Agent agrees that during the Term of this Agreement and for a period of two (2) years from the date of expiration or termination of this Agreement neither Agent, nor any Sub-Contractor, director, officer, shareholder or salesperson of Agent, shall knowingly market, sell or offer to sell to any End Users, any Services via another Master Agent that are competitive with any Service offered by Consult IP.
13.2 End-User Dissatisfaction. Notwithstanding Section 13.1, if any Agent End-User is reasonably dissatisfied with the Services, and Agent has contacted Consult IP in writing providing the details of such Agent End-User dissatisfaction, and has not received a cure for the Agent End-User to the Agent End-User’s satisfaction within fifteen (15) days of the date of the written notice, then Agent may, upon providing written request from Agent End-User, reassign the Agent End-User to one of Consult IP’ alternative Suppliers. Consult IP must be given the right of first refusal to satisfy the Agent End-User with a Consult IP Supplier. In the event that Consult IP agrees with Agent that Consult IP cannot provide an acceptable cure, and the fifteen (15) days have passed giving Consult IP adequate time to cure Agent End-User dissatisfaction, Agent may place the Agent End-User with a competing Supplier without breaching this Agreement.
13.3 Agent will not utilize any Consult IP sales support resources, including but not limited to, quoting system, quoting strategy, other online resources, Consult IP supplier resources, or the time of Consult IP employees, officers, directors or agents, to generate a quote of a Service for an End-User or potential End-User and then place an order for those Consult IP quoted Services through an entity other than Consult IP, including but not limited to, a Supplier, a competing
agent, Master Agent or distribution entity.
14. LIMITATION OF LIABILITY. IN NO EVENT SHALL CONSULT IP BE LIABLE TO AGENT FOR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF CUSTOMERS OR LOSS OF GOODWILL ARISING FROM THE CONDUCT OF BUSINESS CONTEMPLATED HEREUNDER (EVEN IF CONSULT IP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN ANY EVENT, THE LIABILITY OF CONSULT IP TO AGENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO Agent BY CONSULT IP UNDER THIS AGREEMENT IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT AND BREACH OF WARRANTY.
15. WARRANTIES. EXCEPT FOR WARRANTIES EXPLICITLY SET FORTH IN THIS AGREEMENT, CONSULT IP MAKES NO WARRANTIES HEREUNDER, AND AGENT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
16. INJUNCTIONS AND ARBITRATION.
16.1 Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration (Texas Arbitration Act (“TAA”), Tex. Civ. Prac. & Rem. Code §171.001) administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any arbitration under this Agreement will be held in Houston, Texas and the losing party will pay all costs, including counsel fees, incident to arbitration.
16.2 Notwithstanding the provisions of Section 16.1 to the contrary, Agent acknowledges and agrees that any breach or threatened breach of Sections 11 or 13 of this Agreement is likely to cause Consult IP irreparable harm for which money damages may not be an appropriate or sufficient remedy. Agent therefore agrees that Consult IP is entitled to receive injunctive relief or other equitable relief to remedy or prevent any breach or threatened breach of this Agreement. Such remedy is not the exclusive remedy for any such breach or threatened breach, but is in addition to all other rights and remedies available at law or in equity.
NOTICES. All notices, requests or other communications (excluding invoices) given hereunder shall be in writing and addressed to Consult IP as follows:
7022 Shavelson St
Houston, TX 77055
Attn: Director, Alternate Channels
ASSIGNMENT. This Agreement and the rights, obligations and duties of Agent may not be assigned or delegated to any other entity without the prior written consent of Consult IP, which consent shall not be unreasonably withheld. Consult IP may assign all of its rights and obligations hereunder to a subsidiary or affiliate or purchaser of Consult IP. This Agreement is solely for the benefit of the Parties hereto and their respective permitted successors and assigns and shall not confer upon any third party any claim, liability, reimbursement, claim of action or other right in excess of those existing without reference to this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors and assigns.
19. EXCUSABLE DELAYS. Any event that prevents either Party from performing its obligations hereunder and that is beyond the reasonable control and without the fault or negligence of the Party so prevented shall constitute an excusable delay. In such event, the performance obligations of the Parties hereunder shall be suspended and the Term of this Agreement shall be extended for a period of time equal to the length of the excusable delay; provided, however, the affected Party shall promptly notify the other Party of the nature of such delay and the estimated time that such delay shall continue. In the event any delay continues for more than ninety (90) days and such delay has a material adverse impact on the other Party, such other Party may, at its option, terminate this Agreement by written notice to the other.
EXHIBITS. The following exhibits (the “Exhibits”) are attached hereto and made a part hereof:
(a) Exhibit A (the “Definitions”);
(b) Exhibit B (the “Order, Policies and Procedures Statement”);
Agent understands and agrees that Consult IP reserves the right to modify Exhibits B, D and E, at its sole discretion, at any time during the Term, without the mutual consent of Agent. Agent understands and agrees that Consult IP reserves the right to modify The Commission Policies and Procedures Statement as a condition to consenting to any Extension.
HEADINGS AND CAPTIONS. Headings and captions used herein are for reference and convenience only, and shall not be part of this Agreement and shall not define or limit any of the terms or conditions of this Agreement, or be used in the interpretation hereof.