SALES AGENT AGREEMENT
THIS SALES AGENT AGREEMENT (hereinafter "Agreement) is made and entered
into this 10th day of May, 2001 (hereinafter "Effective Date") by and between
Rare Telephony, Inc. with an office at 000 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx
00000 (hereinafter "RARE") and Jamaica Call Centers Limited, with an office at
Kingston Freezone, Kingston, Jamaica, W.I. (hereinafter "JCCL").
WHEREAS RARE is engaged in retail telecommunications services and desires
to engage JCCL as an independent contractor to sell said telecommunication
services; and
WHEREAS JCCL is engaged in the business of call center applications for a
variety of companies throughout the world, and desires, for a commission, to
engage in the sale of RARE's telecommunications services;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants herein contained, the parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the meanings set forth below:
a) "Services" means the telecommunications services that RARE provides.
b) "Commission" means the amount that RARE agrees to pay JCCL pursuant to
Paragraph 3 (entitled "Commissions.").
c) "Customer" means a person who accepts RARE's Services as a result of
JCCL's performance under this Agreement, and does not cancel RARE's Services
within the thirty (30) day money-back guarantee period. Customer shall not
include an individual who was an active customer of RARE prior to JCCL's
submission of the person for RARE Services.
2. Relationship of Parties. JCCL is an independent sales agent selling
RARE's Services with no authority to neither act for or on behalf of RARE nor to
bind RARE in any manner whatsoever, except as expressly granted herein. RARE
will incur no obligation to employees or agents utilized by JCCL to attract
Customers to RARE. Such individuals shall at all times remain employees or
agents of JCCL. JCCL is responsible for all expenses and obligations incurred by
it as a result of its efforts to solicit Customers for RARE. Commissions paid by
RARE hereunder are paid in consideration for JCCL selling RARE Services.
3. Commissions. a) RARE agrees to pay JCCL a one-time fee, as well as a
residual ten percent (10%) net of customer rebates for switching to RARE's
Services, as a monthly residual fee for RARE's Services, said residual fee is to
be in relation to Customer's core monthly xxxx for RARE Services, exclusive of
any taxes, credit card charges, etc. (hereinafter collectively "Commission" for
each sale of RARE Services made by JCCL. Said one-time fee shall be either US
Forty Dollars (US$40.00) or US Fifty-Five Dollars (US$55.00) depending on
whether Customer agrees to RARE's one-time, up-front charge of US Sixty-Nine
Dollars (US$69.00) or opts for RARE's monthly recurring charge of US Four
Dollars and Fifty Cents (US$4.50). JCCL shall continue to receive the ten
percent (10%) residual fee net of customer rebates so long as Customer uses
RARE's Services. b) RARE shall pay JCCL the one-time fee of US Forty Dollars
(US$40.00) plus the ten percent (10%) Customer-based monthly residual fee net of
customer rebates for any and all sales of RARE's Services made by JCCL when the
Customer opts for RARE's monthly recurring charge of US Four Dollars and Fifty
Cents (US$4.50). The ten percent (10%) Customer-based monthly residual fee shall
take effect beginning with the second month that RARE bills Customer for its
Services. c) RARE shall pay JCCL the one-time fee of US Fifty-Five Dollars
(US$55.00) plus the ten percent (10%) Customer-based monthly residual fee net of
customer rebates for any and all sales of RARE's Services made by JCCL when the
Customer opts for RARE's one-time, up-front (rather than the monthly recurring
charge) charge of US Sixty-Nine Dollars (US$69.00). The ten percent (10%)
Customer-based residual fee shall take effect beginning with the second month
that RARE bills Customer for its Services.
4. Representations and Warranties Each party shall perform its obligations
under this Agreement in a legal, ethical and professional manner. Neither party
shall commit any act which would reflect unfavorably on the other. Neither party
shall misrepresent RARE's prices or Service. Each party shall require its
respective employees to comply with all of the provisions of this Agreement.
5. Confidentiality; Trade Secrets Neither party, nor its officers,
directors, agents, or employees, shall disclose the terms of this Agreement to
any third party without the prior express written consent of the other party,
except as may be required by law. JCCL shall not sell, release, or otherwise
identify Customers as customers of RARE, or disclose the identities, including,
but not limited to, the name, address and telephone number of the persons or
entities it solicits as customers or any trade secrets of RARE to any third
party at any time.
6. Term and Termination a) Except as otherwise provided herein, this
Agreement is for an initial term of three (3) years from the Effective Date.
This Agreement shall then automatically renew for successive one (1) year
periods. This Agreement shall remain in full force and effect until or unless
terminated by either party upon sixty (60) days prior written notice. b) Upon
the occurrence and continuation of any of the following events of default, the
non-defaulting party shall have the right to cancel and terminate this Agreement
upon ten (10) days prior written notice to the defaulting party: (i) the
insolvency of either party or the institution of voluntary or involuntary
proceedings in bankruptcy or any other insolvency law, or any arrangement with
creditors of corporate reorganization or receivership or dissolution of either
party; or (ii) material breach of this or any other Agreement between RARE and
JCCL after notice thereof and failure of the breaching party to remedy such
breach within thirty (30) days of reception of such notice if such breach is
capable of being remedied. c) Upon the occurrence and continuation of any of the
following events of default, JCCL shall have the right to cancel and terminate
this Agreement upon ten (10) days prior written notice to RARE: (i) any
significant change in the management of RARE effected without JCCL's prior
written consent; (ii) any civil judgment against, or the filing of criminal
charges against, or the conviction of RARE or any officer, director, or major
stockholder of RARE; or (iii) any significant change in the ownership or
assignment of RARE or the Agreement without a fully executed consent of
assignment from JCCL.
7. Liability of Parties IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR LOSS OF
PROFITS, ARISING FROM THE BUSINESS UNDER THIS AGREEMENT.
8. Dispute Resolution In the case of any disputes under this Agreement, the
parties shall first attempt in good faith to resolve their dispute informally,
or by means of commercial mediation, without the necessity of a formal
proceeding. Should a formal proceeding be necessary, jurisdiction shall be in
the state of New Jersey, without regard to its choice of law provisions.
9. Indemnification Each party shall indemnify, defend, and hold harmless
the other party from and against any and all liabilities (including reasonable
attorney fees) resulting from the actions of the indemnifying party (or its
employees or agents) hereunder. This indemnification shall include, but not be
limited to, breach of any provision in this Agreement, misrepresentation of
RARE's Services or prices, and unauthorized or illegal acts of the indemnifying
party, its employees or agents.
10. Force Majeure Neither party shall be liable for failure to perform its
obligations hereunder due to causes beyond its control, including but not
limited to, acts of God; fire, flood, or other catastrophes; any law, order,
regulation, or request of any government, or of any civil or military authority;
national emergencies, insurrections, riots, wars, strikes, lock-outs, work
stoppages, or other labor difficulties.
11. Notices and Inquiries
All notices and inquiries shall be addressed to the parties as forth
below:
If to RARE: If to JCCL:
RARE Telephony, Inc. Jamaica Call Centers Limited
Attn: Xxxxxxx XxXxxxx Attn: Xxxxxx Xxxxxx
000 Xxxxx Xxxxxx 1 Mangrove Way, XXX#2
0XX Xxxxx Xxxxxxx Xxx Xxxxxxxx
Xxxxxx, XX 00000 Xxxxxxx Xxx, Xxxxxxx
00. Miscellaneous a) If any provision of this Agreement is held invalid,
illegal, or unenforceable in any respect, such provision shall be treated as
severable, leaving the remaining provisions unimpaired, provided that such does
not materially prejudice either party in their respective rights and obligations
contained in the valid provisions, covenants, or conditions. b) The failure of
either party to require the performance of any of the terms of this Agreement or
the waiver by either party of any default under this Agreement shall not prevent
a subsequent enforcement of such term, nor be deemed a waiver of any subsequent
breach. c) This Agreement may not be modified, supplemented or amended except
upon the execution and delivery of a written agreement signed by both parties.
d) Both parties warrant and represent that each has the full authority to
perform its obligations under this Agreement and that the person executing this
Agreement has the authority to bind it. e) This Agreement constitutes the final
and full terms of understanding between the parties and supersedes all previous
agreements, understandings, negotiations, and promises, whether written or oral,
between the parties with respect to the subject matter hereof, except as
provided herein.
IN WITNESS WHEREOF, the parties agree that the effective date of this Sales
Agent Agreement is the date listed hereunder upon execution of all parties. Each
party warrants that it has caused this Agreement to be signed and delivered by
its duly authorized representative. A facsimile signature shall be legal and
binding just as if executed in person with all parties hereto present.
EXECUTED BY:
/s/ Xxxxxxx X. XxXxxxx 5/10/01 /s/ Xxxxxx Xxxxxx 5/10/01
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Rare Telephony, Inc. Dated Jamaica Call Centers Ltd. Dated
