This Agreement is made with reference to the following recitals which are incorporated into and are part of this Agreement.
RECITALS
WHEREAS, Company is in the business of Business Consulting, Commercial Lending, General Construction, Solar Sales, Electricity Procurement and host of other services provided by thired party providers / servicers wishes to engage Direct Seller to generate qualified enrollments (the “Sales”) for the program listed in Schedule A, as developed, administered, offered, and modified by Company in its discretion from time to time (the “Program”), to end-user commercial and residential customers (“Customer” or “Customers”) in the non-exclusive territory designated by Company here;
WHEREAS, Direct Seller desires to market the Program, and to engage in the business of conducting service solicitations on a direct sales/marketing basis, generating qualified enrollments, and providing such other services as may be assigned to Direct Seller by Company during the Term (collectively, the “Services”), directly and through a network of sales representatives, including any sub-agents and their respective employees and sales representatives (collectively the “Network”); and
WHEREAS, Company desires to engage Direct Seller on an independent contract basis and allow it to provide the Services, and Direct Seller has agreed to provide the Services to generate sales for the Program, at all times subject to the terms and conditions contained in this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the premises, the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which each Party hereby acknowledges, the Parties covenant, undertake and agree, each with the other, as follows:
1. Relationship of Parties
Company hereby authorizes Direct Seller on a non-exclusive basis to generate Sales for the Program through the Network within such parts of the geographic area serviced by Company set forth in Schedule B, as such geographic area may be expanded or modified from time-to-time by Company in its discretion (the “Territory”).
1.1 The Parties agree that their relationship is one of independent contracting parties and that this Agreement does not create a general agency, joint venture, employment relationship, partnership or franchise between them. No Party has the authority to make business decisions for, execute agreements for, or otherwise bind the other Party, to respond on the other Party’s behalf or in any way represent itself as having decision making authority beyond the rights set forth herein, or to represent the other Party in any way without the Party’s express prior written approval and authority. Direct Seller shall be an independent contractor for all purposes, including, without limitation, federal, state and local taxation. Direct Seller shall have full control of its activities and the right to exercise independent judgment as to the time, place, and manner of soliciting Sales and providing Services for the Program and otherwise carrying out the provisions of this Agreement, subject to applicable laws and regulations. Except as otherwise expressly provided herein, Direct Seller shall be solely responsible for all expenses or obligations incurred by Direct Seller or its Network in connection with performing its obligations hereunder and shall not incur any indebtedness on behalf of Company.
1.2 Company expressly reserves the right, without obligation or liability to Direct Seller, to directly or indirectly market and sell the Program and any other products and services in the Territory, whether though Company’s own stores or representatives or through others, including, but not limited to, other authorized representatives, dealers, resellers, distributors, agents, sub-agents, and retailers.
2. Obligations of Direct Seller
2.1. During the Term of this Agreement, Direct Seller, directly and/or through the Network, shall use best efforts to market and sale Services on behalf of Company on a full-time basis in the Territory. Direct Seller shall at all times devote, and ensure that each member of its Network devotes, their respective full business time, attention, and efforts to such activities on behalf of Company and shall not / does not, directly or indirectly, engage in any other business activities
that conflict or interfere with Direct Seller’s / Network’s performance of their respective duties under this Agreement, including but not limited to any activities competitive with or similar to Company’s business or any product or service, offered by Company. Direct Seller will ensure that it and its Network uses best efforts to (a) perform the Services in a professional and ethical manner consistent with the terms of this Agreement and applicable laws, rules and
regulations; (b) preserve and protect Company’s intellectual property, confidential and proprietary information and trade secrets; and (c) promote and preserve the business and business opportunities of the Company and the goodwill of its customers, clients, suppliers, and other business relationships.
2.2. Direct Seller shall inform the Network of all of the obligations and requirements imposed by Company and by this Agreement, and shall use best efforts to ensure that the Network complies with all such obligations and requirements. Direct Seller shall further use diligent efforts to (i) ensure that its Network and each member thereof complies with applicable laws and regulations and does not misrepresent the Program or otherwise modify or expand the claims, representations or warranties provided by Company in connection with the Program; (ii) ensure that the Network is provided with sufficient information and resources to fully educate the Network with the Services, Program, and the rates and promotions available to Company’s prospects and customers; and (iii) cause the Network to provide professional and efficient service to the public and do nothing that would tend to discredit, disparage, or in any way
reflect adversely upon Company.
2.3. Direct Seller shall strictly adhere to Company’s branding requirements as appended to the Agreement or provided in writing by Company to Direct Seller from time to time.
3. Obligations of Company
3.1 Company will from time to time provide Direct Seller and the Network with such support services and updated Program information as may be determined by Company in its discretion, to enable Direct Seller and the Network to effectively, knowledgeably and professionally sell the Program and provide Services in the Territory. This information may include periodic updates regarding changes to the Program or the Territory. Company will from time to time provide Direct Seller reports, schedules and support for the marketing of the Program and provision of Services in such detail and format, and at such frequency and at such times as Company may determine in its discretion. Such reports may include, without limitation, periodic reports defining particulars of order status to include Sales that are pending and/or have been cancelled, including the reasons for any cancellation, if known to Company. Direct Seller shall have the right, for a period of ten (10) business days from the date of any report of a rejection or cancellation of an order to appeal such finding to Company by submitting written reasons for its dispute. Company shall research the reasons for dispute and determine if the “Cancelled” or “Rejected” orders were cancelled correctly or incorrectly and report its findings to Direct Seller. If Company determines that any orders were cancelled incorrectly, Company will take reasonable corrective action, including payment of remuneration, if any, owed in connection with such orders pursuant to the terms of this Agreement.
3.2 Taxes - Company shall not have any responsibility for any and all taxes relating to Direct Seller’s or its Network’s participation in the Program including, but not limited to (i) Direct Seller’s or Network’s compensation or income under this Agreement; or (ii) Direct Seller’s engagement or payment of compensation to employees, agents, or subcontractors, or the Network. Direct Seller acknowledges and agrees that, as an independent contractor, the
Company will not withhold federal income taxes, social security, Medicare, or any other taxes from payments due hereunder. Direct Seller shall remain solely responsible for payment of all federal, state, and local taxes, and for filing of all required tax returns and reports. The Company shall issue a Form 1099 to Direct Seller reporting all compensation as income. Unless otherwise agreed upon.
4. Billing and Payment
4.1 Company shall pay fees to Direct Seller in accordance with and pursuant to the plan attached as Schedule A to this Agreement. The fees earned by Direct Seller shall be based on Sales, and Company shall endeavor to pay Direct Seller any compensation owed under this Agreement for properly documented Sales by Direct Seller within ten (10) business days after Company’s actual receipt of payment from the energy provider for those Sales. Company will pay any payments due to Direct Seller electronically via ACH, provided Direct Seller provides Company with all pertinent banking information to facilitate electronic bank payment. Direct Seller may dispute, in writing, within ten (10) business days of receipt of a commission statement from Company, any payment documented on such statement. Direct Seller’s failure to notify Company in writing within the 10-day period as to any disputed item shall constitute agreement to the validity of such payment. If the total or any part of the disputed fee are determined by both Parties to be incorrect: a) if the disputed fee has already been paid by the Company, then a new invoice will be generated within three (3) business days by Direct Seller reflecting the correct fee and the disputed fee amount will be credited to the Company’s account via ACH; or if the disputed payment is not yet due, the Direct Seller will generate a new invoice within three (3) business days reflecting the corrected amount and said invoice will be due within two (2) business days of receipt by Company. If the total disputed fee is determined by both Parties to be correct: a) if the disputed fee has already been paid by the Company, then no action is necessary by either Party; or if the disputed payment is not yet due, the Company will pay the payment on the later of the due date or within ten (10) business days of resolution of the disputed amount.
5. Restrictive Covenants
5.1 Relationship between Company and Direct Seller / Network. Direct Seller recognizes and agrees that its engagement
by Company is one of the highest trust and confidence because of the following:
(a) Company has made and will make a significant investment in engaging and preparing Direct Seller and its Network to market and sell the Program; will provide substantial resources that Direct Seller and Network will use; has at substantial cost and effort built an established supplier and client base and reputation upon and from which Direct Seller and Network will be relying and benefitting; and has invested significant resources in advertising the Company and Program and developing goodwill; (b) Direct Seller and Network will become familiar with proprietary information and aspects of the business of Company and its suppliers and clients during the period of Direct Seller’s engagement with Company, which information Direct Seller/Network did not possess prior to engagement by Company; and certain information of which Direct Seller/Network will gain knowledge of is proprietary and confidential information which is of special and peculiar value to Company, which knowledge Direct Seller and Network did not and would not possess prior to engagement by Company; and if any such proprietary and confidential information were imparted to or became known by any person, irreparable hardship, loss, injury and damage would result to Company, the measurement of which would be difficult if not impossible to ascertain. Direct Seller therefore agrees that it is necessary for Company to protect its business from such damage, and Direct Seller further agrees that the following covenants constitute a reasonable and appropriate means, consistent with the best interest of both Direct Seller and Company to protect Company against such damage and will be binding upon Direct Seller as provided in this Agreement.
5.2 Non-Competition. Direct Seller, on behalf of itself and its Network, affiliates, sub-agents, and their respective sales representatives, employees, contractors, and agents (collectively, the “Restricted Parties”), grants the following restrictive covenant (“Restrictive Covenant”) to Company.
5.2.1 For a period of time beginning on the Effective Date and continuing for a period of one (1) calendar year after any termination of this Agreement (“Restricted Period”), the Restricted Parties covenant and agree that they will not, in or within 100 miles of the Territory (“Restricted Area”) directly or indirectly compete with Company including, but not limited to, offering, promoting, marketing, or selling products or services that are competitive with or substantially similar to the Services or the Program, or to any other product or service that may be offered or provided by Company during the Restricted Period (collectively, the “Restricted Activities”). During the Restricted Period, the Restricted Parties will not engage in Restricted Activities in the
Restricted Area directly or indirectly, whether as an individual, organization, corporate or business entity, partner, associate, contractor, employee, sales representative, or as a stockholder, officer, director, member, manager, partner, affiliate, agent, or representative of any Person so engaged. Nor will the Restricted Parties in any capacity during the Restricted Period, own, manage, engage in, operate, control, work for, consult with, render services for, lend or license Restricted Parties’ names or trademarks to, or otherwise participate in any
business conducting Restricted Activities in the Restricted Area.
5.2.2 If a court should hold that the Restricted Period, Restricted Activities and/or the Restricted Area is unenforceable, then to the extent permitted by law the court may prescribe a duration for the Restricted Period and/or a radius or area for the Restricted Area that is reasonable and the parties agree to accept such determination subject to their rights of appeal. Nothing herein stated will be construed as prohibiting Purchaser from pursuing any other equitable remedy or remedies available for such breach or threatened breach, including recovery of damages from Seller or injunctive relief.
5.2.3 Should the Restricted Parties be in violation of this Restrictive Covenant then the Restricted Period will be extended for a period of time equal to the period during which said violation or violations occurred. If Purchaser seeks injunctive relief from said violation in court, then the running of the Restrictive Period will be suspended during the pendency of said proceeding, including all appeals by the Restricted Parties. This suspension will cease upon the entry of a final judgment in the matter.
5.3 Non-Solicitation. For purposes of this Section, “Restricted Supplier” means any and all energy, electricity or power suppliers, providers, wholesalers, manufacturers, or sellers with whom a Restricted Party works or maintains a relationship within any capacity on behalf of Company or in connection with the Program or this Agreement. “Restricted Client” means any prospective or actual client or customer with whom a Restricted Party works or
communicates or about whom a Restricted Party receives confidential information from Company in connection with this Agreement or the Program. During the Restricted Period, the Restricted Parties covenant and agree not to, directly or indirectly, on behalf of themselves or any other person or entity:
5.3.1 Accept employment from, work in any capacity for or on behalf of, or provide competitive services or assistance of any nature, to any Restricted Supplier, or solicit or induce, attempt to solicit or induce, or assist any Restricted Supplier to terminate or alter its relationship with Company, or to market or sell products or services outside of its relationship with Company in a manner that is competitive with Company;
5.3.2 solicit or induce, or attempt to solicit or induce any sales representative, employee, contractor, agent, or subagent engaged by Company, or engaged by Direct Seller to provide Services on behalf of Company, to discontinue providing Services or participating in the Program, or to terminate or alter their relationship with the Company; or
5.3.3 solicit or induce, or attempt to solicit or induce, any Restricted Client to purchase or acquire competitive goods or services; discontinue participating in the Program or acquiring Services; or otherwise terminate or alter their client relationship with Company.
5.3 Specific Performance. Any breach of the warranties and covenants contained in this Section 5 will be subject to specific performance by temporary as well as permanent injunction or other equitable remedies by a court of competent jurisdiction. The Parties acknowledge that damages at law may be an inadequate remedy. To the extent permitted by applicable law, the Parties agree that the appropriate amount for securing or posting of bond in connection with obtaining such injunctive or equitable relief is $100.00. The obtaining of any such injunction will not prevent the obtaining Party from also seeking and obtaining any damages incurred as a result of such breach, either prior to or after obtaining such injunction. If any court of competent jurisdiction determines that a Party has breached any of the foregoing covenants, then that Party will pay all reasonable costs of enforcement of the foregoing covenants including, but not limited to, court costs and reasonable attorneys’ fees, including such costs and fees through any appeals.
6. Representations and Warranties
6.1 Direct Seller hereby represents and warrants to Company as follows:
6.1.1 Direct Seller is duly organized, validly existing and in good standing under the laws of the state of NC
6.1.2 Direct Seller has all the requisite corporate power and authority to enter into this Agreement and to carry out
and perform its obligations under the terms of this Agreement; and
6.1.3 The execution, delivery and performance of and compliance with this Agreement does not and will not conflict with, violate, or constitute a default under any of Direct Seller’s organizational documents or any other contract, agreement, instrument, order, statute, law, rule or regulation applicable to Direct Seller or Company in any territory or state where Direct Seller shall conduct business.
6.1.4 This Agreement, when executed by Direct Seller, will constitute a legal, valid and binding obligation of Direct Seller enforceable against Direct Seller in accordance with its terms.
6.1.5 Direct Seller shall obtain and maintain, at its own expense, all relevant permits, licenses and bonds required to furnish the Services. Additionally, Direct Seller shall provide Company with copies of any such permits, licenses or bonds upon request.
6.1.6 Direct Seller’s policies and operating procedures shall comply with all federal, state and local laws, regulations and rules, applicable to Company and to the products and services to be sold by Direct Seller pursuant to this Agreement. These may include, without limitation and only to the extent applicable to the Services to be provided hereunder (i) the California Home Solicitation Sales law (Cal. Civ. Code § 1689.5 et. seq.) and similar laws of any other applicable state, (ii) the Federal Trade Commission’s Telemarketing Sales Rules (16 C.F.R.Part 310), (iii) the Customer Proprietary Network Information rules contained in the Communication Act of
1934, as amended (47 U.S.C. § 222 and its implementing regulations, 47 C.F.R. § 64.2001 et. seq.), (iv) the privacy rules governing cable and high speed internet customers’ information (47 U.S.C. § 551), and (v) any other laws, regulations and rules specific to the products and services to be sold by Direct Seller pursuant to this Agreement. Vendor shall, every thirty (30) calendar days, prior to calling any number on behalf of Company, Vendor shall verify each number to be called against the Federal and applicable State DNC Register as well as any internal do-not-call list maintained by Company and Vendor.
6.2 Company hereby represents and warrants to Direct Seller as follows:
6.2.1 Company is duly organized, validly existing and in good standing under the laws of the state of Texas;
6.2.2 Company has all the requisite corporate power and authority to enter into this Agreement and to carry out and perform its obligations under the terms of this Agreement;
6.2.3 The execution, delivery and performance of and compliance with this Agreement does not and will not conflict with, or constitute a default under any of Company’s organizational documents or any other contract, agreement, instrument, order, statute, rule or regulation applicable to Company;
7. Use of Company’s Intellectual Property
During the Term, Company grants to Direct Seller a limited, non-exclusive, revocable, royalty-free right and license to use and display Company’s name and logo as depicted on the attached Schedule C, solely within the Territory and solely for generation of Sales for the Program, in accordance with Company’s applicable guidelines that have been provided to Direct Seller.
For purposes of this Section 7, the term “Marks” shall mean Company’s name and logo, and any and all trademarks, service marks, domain names, trade names, insignias, symbols, logos or decorative designs, which Company may authorize by license or sublicense for Direct Seller’s use during the Term. All title to and the rights in the Marks and the associated goodwill are the
exclusive property of Company. Direct Seller agrees that its use of the Marks will not create any right, title, or interest in or to such Marks other than as set forth in this Agreement, and that all goodwill associated with such Marks, including any goodwill generated through Direct Seller’s use of the Marks, will belong and inure solely to the benefit of Company. Direct Seller covenants
and agrees that it will not (1) take any action or assist any third party in any action to contest or impair Company’s ownership rights or dilute, tarnish, or infringe the Marks; (2) at any time dispute or contest the right, title, or validity of the Marks; or attempt to register or use any intellectual property, including any trademarks or service marks, confusingly similar to Marks. Direct Seller acknowledges that it has no rights in the Marks except those expressly granted under this Agreement or in a subsequent written license agreement duly executed by Company; and that all other rights are reserved by Company. In using the Marks, Direct Seller will acknowledge Company’s ownership of the applicable Marks, including properly marking any communications, marketing materials, products or services; will comply with all reasonable conditions set forth in writing from time to time by Company with respect to style, appearance, and manner of use of the Marks; and, prior to a new use of any of the Marks, will submit to Company for approval representative samples of all proposed materials bearing one or more of the Marks; and will cooperate in good faith with Company to correct and/or remedy inappropriate uses of the Marks. In connection with its use of any of the Marks, Direct Seller agrees to make proper use of the “®” symbol or other proper notice to indicate a federally
registered mark, and the “™” symbol to indicate an unregistered mark. Upon receiving notice that the use of a registration notice or “™” symbol is incorrect or otherwise deemed unacceptable to Company, Direct Seller will promptly modify such uses to address Company’s reasonable objections.