Exhibit 10.13
SAMPLE DEALER AGREEMENT
THIS AGREEMENT (Agreement), made and entered into this ____ day of
_______________, 2006, (Effective Date) by and between DataCall Technologies,
Inc., (DataCall), a Nevada corporation, with its principal place of business at
000 Xxxxxxx, Xxxxx X-00, Xxxxxxx, TX., and ____________ (Dealer) and together
(Parties).
PURPOSE OF AGREEMENT
DataCall and Dealer wish to enter into an Agreement in which Dealer will be
authorized to furnish the DataCall Direct Xxxx Messenger(TM) data feed for
compensation. In pursuit of this goal the Parties agree to the following:
1. DEALER RELATIONSHIP & GRANT OF AUTHORITY
1.1 Independent Contractor. Dealer is an independent contractor and not an
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employee, franchiser, partner or co-venturer of or with DataCall. Dealer is
solely responsible for its own business expenses, including, without
limitation, all federal, state and local taxes as well as all payroll taxes
for himself and his employees.
1.2 Authorization. Except as restricted by this Agreement, effective as of the
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date of this Agreement, Dealer shall be authorized, on a non-exclusive
basis, to carry on the customary activities of a DataCall Vendor,
including, but not necessarily limited to, the sale of DataCall Direct Xxxx
Messenger(TM) service to all persons and entities in the United States,
Canada, and the Islands of the Caribbean. Dealer shall be bound to and
agrees to comply with the terms of this Agreement.
2. DEALER RESPONSIBILITIES
2.1 Day-to-Day Management. Dealer shall be responsible for the overall
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day-to-day management of Dealer issues.
2.2 Delivery of Signed Agreement to DataCall. Dealer shall be responsible for
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delivering signed DataCall Direct Xxxx Messenger(TM) System Agreements to
DataCall for approval prior to installation.
2.3 National Account Pre-Approvals. Dealer must have pre-approval of DataCall
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prior to approving any of his or Dealer's Rep's national accounts.
3. DATACALL RESPONSIBILITIES
3.1 System Activation. DataCall will activate all services(s) via the DataCall
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website. An approved login name and password will be provided for each
account.
3.2 Promotional Materials. DataCall shall provide Dealer with a reasonable
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quantity of Promotional Materials commensurate with the Dealer's business
activities with DataCall free of charge. If larger quantities or varied
promotional material is desired, DataCall will provide necessary artwork to
facilitate such requirements. DataCall must review and approve supplemental
promotional material.
3.3 Price Adjustments. DataCall must pre-approve any increase or decrease of
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set price structure(s).
3.4 Support. DataCall shall provide assistance to Dealer on one-on-one calls,
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conference calls with respect to prospects and Dealer accounts, registering
of Reps, training, as well as approval of any and all advertising,
brochures, marketing materials, emails, business cards, stationery,
proposals, "help wanted" advertising or other such related materials;
provided, however, that Dealer may list DataCall and the DataCall Direct
Xxxx Messenger(TM) service(s) in its catalogs, line cards and general
correspondence and advertising without the need for prior approval.
3.5 Training. DataCall shall provide training as needed to Dealer and/or his
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Reps on the use of DataCall Direct Xxxx Messenger(TM) service(s). Dealer
Agreement - Page #1 ______ Dealer ______ DataCall
4. COMMISSIONS ON SALES
4.1 Commissions on Dealer Subscriptions. Dealer shall be entitled to receive,
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and DataCall agrees to pay Dealer, a commission equaling ____% of gross
subscription contract. Payment of commission shall be made to Dealer within
five (5) working days after DataCall's acceptance of a paid subscription
contract.
4.2 Special Pricing. Any reductions or changes in standard pricing and/or fees
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negotiated between a Dealer Account, Dealer and DataCall may affect
Dealer's commission at the sole discretion of DataCall. DataCall will
handle such commission adjustments on a case-by-case basis.
4.4 Disputed Commissions. Dealer shall be given thirty (30) days from
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DataCall's receipt of any approved sales document to dispute, in writing,
any commission calculations by DataCall. DataCall shall then be given
thirty (30) days to respond and attempt to resolve such dispute with
Dealer. If resolved dispute results in payment being due to Dealer, then
such payment shall be due and payable to Dealer within five (5) working
days.
5. DURATION OF AGREEMENT - TERMINATION
The term of this Agreement shall be for one (1) year, commencing on the date of
this Agreement, which shall be renewed for the term of one (1) year on the
year's anniversary date. Either party may terminate this Agreement by providing
sixty (60) day's written notice to the other party. If, on termination of this
Agreement, DataCall has advanced moneys to Dealer against commissions to be
earned, the amount of commissions actually earned by Dealer will be calculated
and Dealer will promptly refund the amount of the excess advances. Dealer shall
receive commissions on all subscription contracts submitted prior to the
termination date.
6. CONFIDENTIALITY
During the term of this Agreement, the Parties may disclose to each other
certain "proprietary" and/or "confidential information. The Parties desire to
assure the confidential and proprietary status of the information, which may be
disclosed to each other and, therefore, for they and their affiliates agree as
follows:
6.1 Proprietary Information. All information disclosed shall be deemed to be
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confidential and proprietary (hereinafter "Proprietary Information")
provided that written information is clearly marked in a conspicuous place
as proprietary or confidential, and verbal information is immediately
confirmed in writing as being proprietary or confidential. All information
contained in this Agreement shall be considered Proprietary Information
without further act of either Party.
6.2 Reproduction. Proprietary Information supplied shall not be reproduced in
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any form or orally communicated or used for a period during the term of
this Agreement and for three (3) years after its termination except as
required to accomplish the intent of this Agreement.
6.3 Use. Each Party agrees to use the Proprietary Information received from the
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other Party only for the purpose of this Agreement. No other rights, and
particularly licenses, to trademarks, service marks, inventions, copyrights
of patents, are implied or granted under this Agreement.
6.4 Agreement is Confidential. Each Party agrees not to reveal the contents of
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this Agreement to any third party, including any Rep, except as
contemplated by this Agreement.
6.5 Exceptions to the Confidentiality and Non-Use Obligations. The obligations
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imposed by this Agreement shall not apply, or shall cease to apply, to any
Proprietary Information of the other Party and/or the contents of this
Agreement if or when, and to the extent that, such Proprietary Information
and/or contents of this Agreement:
a. was known to the receiving Party, or its parents, subsidiaries or
affiliates prior to the receipt of the same from the disclosing party; or
b. was, or becomes through no breach of receiving Party's obligations
hereunder, known to the public; or
c. becomes known to the receiving Party, or its parents, subsidiaries
or affiliates from sources other than the disclosing Party under
circum-stances not involving any breach of any confidentiality obligation
between such source and the disclosing Party; or
d. Is independently developed by the receiving Party or its parents,
subsidiaries or affiliates; or
e. Is required to be disclosed by law, statute, rule, regulation,
Court order or other legal process, or order of any government agency,
provided that written information describing the relationship of the
Parties or the contents of this Agreement or the Proprietary Information
that one Party is obligated to disclose shall be first disclosed to the
other Party if permitted without being in violation of law, which shall
have an opportunity to object to such disclosure.
Any written consent to disclose Proprietary Information or the contents of this
Agreement shall be strictly construed in its scope and interpretation against
disclosure of Trade Secrets and shall be strictly construed in its scope to
limit the amount of information which constitutes Trade Secrets. Any violation
of the aforesaid shall be construed as a direct breach to this Agreement and
will be means for immediate termination of this agreement.
7. DATACALL RESPONSIBILITY
DataCall shall be solely responsible for the design, development, supply
production and performance of its DataCall Direct Xxxx Messenger(TM) service(s)
and the protection of its patents, trademarks and trade names. DataCall agrees
to indemnify, defend and otherwise hold harmless Dealer from and against and to
pay all losses, costs, liabilities, damages or expenses whatsoever, including
reasonable attorney's fees, arising from or in any way connected with the
production, sale, possession or use, including demonstration or display or
warranty, of DataCall's DataCall Direct Xxxx Messenger(TM) service(s) (whether
defective or not), or any act or omission of DataCall, including, without limit,
any which Dealer may sustain or incur on account of infringement or alleged
infringement of patents, copyrights, trade secrets, trademarks, trade names or
other rights of third parties, or breach of warranty or violation of any
municipal, state, federal or other law, statute, rule, regulation or order
governing the its DataCall Direct Xxxx Messenger(TM) service(s).
8. WRITTEN CONTRACT AS CONSTITUTING ENTIRE AGREEMENT
This Agreement constitutes the entire contract and agreement between Parties,
and there are no verbal understandings or other agreements of any nature with
respect to the subject matter hereof except those contained in this Agreement.
9. GOVERNING LAW
This Agreement shall be governed, interpreted and construed by, through and
under the laws of the State of Texas and Xxxxxx County.
10. ATTORNEYS' FEES
In the event of any legal or equitable action, including any appeals, which may
arise hereunder between or among the parties hereto, the prevailing party shall
be entitled to recover reasonable attorney fees. Attorney fees shall also
include hourly charges for paralegals, law clerks and other staff members
operating under the supervision of an attorney.
11. SEVERANCE
The invalidity or unenforceability of any portion of this Agreement shall not
affect the remaining provisions and portions hereof.
IN WITNESS WHEREOF, the parties have caused these presents to be duly executed
on the date first above written.
WITNESSES:
DATA CALL TECHNOLOGIES, INC.
(Printed Name)
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(Title)
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DEALER:
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(Printed Name)
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(Title)
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