EXHIBIT 3.4.2
TELEMARKETING AGENT AGREEMENT
This Agent Agreement (the "Agreement") is effective immediately when
signed by authorized principals of both PowerSource Corporation, ("Company") and
Consumer Sales Solutions, Inc. ("Agency"). This agreement is executed and
effective for 90 days from the date signed.
WHEREAS, the Company provides the resale of Electricity ("Services");
and
WHEREAS, the Agency is engaged in the business of providing
telemarketing services; and
WHEREAS, the Company desires the services of Agency as an independent
contractor in marketing such services to its customers on the behalf of the
Company.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT:
1. RIGHT TO SELL ELECTRICITY RESALE SERVICES.
(a) The Company hereby grants Agency the right to sell the Company's
Electricity Resale Services, and Agency hereby agrees to telemarket and
solicit customers for the benefit of the Company, all pursuant to the
terms and conditions of this Agreement.
(b) Agency shall telemarket and sell Electricity Resale Services at the
rates and on the other terms and conditions prescribed by the Company
from time to time.
(c) All customers and customer orders submitted to the Company by Agency
(including those submitted by Agency through Agency's employees or
representatives) shall be submitted in accordance with Company policies
and procedures as communicated to Agency from time to time, and shall
be subject to acceptance by the Company and, if accepted, such
customers shall become customers of the Company and not of any other
party, including Agency (herein referred to as the "Solicited
Customers" and individually as a "Solicited Customer").
2. INDEPENDENT CONTRACTOR. In fulfilling its obligations to the Company, under
this Agreement, Agency is acting as an independent contractor of the Company,
and not as a partner, co-venturer, employee, franchisee or representative of the
Company. Agency shall have no right, power or authority to make any
representations or enter into any agreement for, or on behalf of, or incur any
obligation or liability, of, or to otherwise bind the Company. Except as
specifically agreed to by the Company in writing, the Company shall not
reimburse Agency for any expenses incurred by Agency or any fringe benefits in
connection with this Agreement. Agency shall have full responsibility for
withholding taxes, social security withholding, workers' compensation,
withholding, unemployment withholding or any similar taxes or charges
attributable to Agency or Agency's employees or representatives.
3. COMPENSATION
(a) Company shall pay Agency a commission for each customer
obtained by Agency pursuant to Exhibit "A" herein.
(b) Company shall withhold 20% of Agency's commissions and place
funds into a Deferred Commission Account assigned to Agency.
(1) Company will draw down from Agency's assigned
Deferred Commission Account in the amount equaled to
Agency's commission pursuant to Exhibit "A" for each
customer cancellation procured by Agency within the
first two (2) Company billing cycles.
(2) Funds remaining in the Deferred Commission Account
after first two (2) Company billing cycles customers
will be available to Agency.
(c) Notwithstanding anything herein to the contrary, no commission
shall be due Agency for any customer that is an existing
customer of Company at the time Service is ordered.
4. TERM. The initial term of this Agreement shall commence on the date hereof
and shall continue for ninety (90) days thereafter unless earlier terminated
pursuant to Section 5 (the "Initial Term").
5. TERMINATION
(a) Agency may terminate this Agreement by giving the Company at least
thirty (30) days prior written notice and the Company may terminate
this Agreement by giving Agency at least thirty (30) days prior written
notice.
2
(b) If either party fails to perform or comply with any provision of
this Agreement, or if Agency fails to perform or comply with any
provision of the Confidentiality, Non-Compete and Non-Solicitation
Agreement described in Section 9 of this Agreement, the non-breaching
party may, at its option, immediately terminate this Agreement.
(c) Upon termination, the provisions of this Agreement shall have no
further force or effect; provided, however, that Sections 5, 7, and 9
hereof shall survive indefinitely.
6. COVENANTS OF AGENCY.
(a) Agency agrees not to make any false or misleading statements
concerning the Company, including, but not limited to, the Company's
business services, performance, commitments and fees, and Agency
understands that any such statement shall constitute a breach of this
Agreement which, in the sole discretion of the Company, is cause for
immediate termination thereof.
(b) Agency agrees to comply with all federal, state, and local laws
governing the sale of services on behalf of the Company, including, but
not limited to, any licenses or permits that may be required in order
to perform the activities or satisfy the duties and obligations under
this Agreement.
(c) Agency agrees not to use any written materials to advertise, to
solicit customers or take customer orders for the Company other than
those written materials provided or approved in writing by the Company.
(d) Agency agrees not to engage any other party to perform its
activities or meet its duties or obligations hereunder without the
prior written consent of the Company.
7. INDEMNIFICATION.
(a). Agency shall indemnify, defend and hold harmless the Company and
its officers, directors and affiliates from and against any and all
losses, liabilities, damages, costs, claims and expenses (including
reasonable attorney's' fees and disbursements) sustained or incurred by
the Company as a result of (I) any breach of this Agreement by Agency
or its employees or representatives, (ii) any breach of Agency's
representations or warranties as set forth herein, (iii) any act of
negligence or willful misconduct by Agency or its employees or
representatives, or (iv) any claim made against the Company by a third
party, including any federal, state or local regulatory agency, or any
entity organized for the purpose of providing consumer protection,
which arises out of the acts or omissions of Agency, whether or not
related to Agency's performance under the terms and conditions of this
Agreement. Agency hereby agrees that the Company shall have the right
to offset Agency's indemnification liability arising out of this
Section 7 against any Fees due to Agency.
3
(b). Company shall indemnify and hold harmless the Agency and its
officers, directors and affiliates from and against any and all losses,
liabilities, damages, costs, claims and expenses (including reasonable
attorney's' fees and disbursements) sustained or incurred by the Agency
as a result of (i) any breach of this Agreement by Company or its
employees or representatives, (ii) any breach of Company's
representations or warranties as set forth herein, (iii) any act of
negligence or willful misconduct by Company or its employees or
representatives, or (iv) any claim made against the Company by a third
party, including any federal, state or local regulatory agency, or any
entity organized for the purpose of providing consumer protection,
which arises out of the acts or omissions of Company, whether or not
related to Company's performance under the terms and conditions of this
Agreement.
8. NOTICES. Any and all notices or other communications required or permitted by
any provision of this Agreement shall be in writing and shall be hand-delivered,
or mailed by certified mail, return receipt requested, and shall be deemed to be
given, dated and received when so hand delivered or, if mailed, 48 hours after
the time of mailing, to the Company, PowerSource Corporation. at 0000 Xxxxxxxx
Xxxx., Xxxxx 0000 Xxx Xxxxxxx, Xxxxxxxxxx 00000 and the Agency at the address
set forth at the end of this Agreement (or to such other address or addresses as
either party may subsequently designate by notice given hereunder).
9. CONFIDENTIALITY; NON-COMPETITION; NON-SOLICITATION.
(a) During the Agency's business association with Company, Company may
have disclosed, and may disclose, to the Agency, or may have given the
Agency access to, customer files and lists, vendor files and lists,
trade secrets, intellectual property, proprietary information,
inventions, financial information and marketing, sales and billing
techniques owned or developed by Company, and other information
regarding the business, process or products of Company which is treated
by Company as confidential or which the Agency has reasonable basis to
believe is confidential ("Confidential Information").
(b) The Agency agrees to use Confidential Information solely in
connection with its business association with Company for Company's
sole benefit, to maintain any Confidential Information in the strictest
of confidence, and not to use, disclose or publish any such
Confidential Information, directly or indirectly, in any other manner
whatsoever.
4
9.1 NON-COMPETE/NON-SOLICITATION. The Agency agrees that during the period of
the Agency's business association with Company and for a period of one (1) year
thereafter, it will not, without the prior written consent of Company, directly
or indirectly, engage in any of the following actions in or within the state of
California:
(a) Render services, advice or assistance to any corporation, person,
organization or other entity which develops, supports, designs,
produces, markets, telemarkets, related to the sale of electricity to
residential consumers.
(b) Induce, solicit, endeavor to entice or attempt to induce any
customer, supplier, licensee, licensor or other business relation of
Company to cease doing business with Company, or in any way interfere
with the relationship between any such customer, vendor, licensee,
licensor or other business relation and Company.
(c) Induce, solicit, endeavor to entice or attempt to induce any
employee of Company or Agency to leave the employ of Company or Agency,
or to work for, render services or provide advice to or supply
confidential business information or trade secrets of Company or Agency
to any third person or entity, or in any way interfere adversely with
the relationship between any such employee and Company or Agency.
(d) Company will not enter into an agreement for telemarketing services
from any individual, group, company or organization within the "813"
and "727" area codes while the this Agreement is in force.
10. MISCELLANEOUS.
(a) AMENDMENT, WAIVER AND THIRD PARTY BENEFICIARIES. This Agreement may
Not be amended orally, but only by an instrument in writing signed by
the party against which the enforcement of the change, waiver,
discharge or amendment is sought. No delay or failure on the part of
the Company to exercise any power or right hereunder shall operate as a
waiver thereof, nor as an acquiescence in any default, nor shall any
single or partial exercise of any power or right preclude any other
further exercise thereof, or the exercise of any other power or right.
The Company and Agency acknowledge and agree that this Agreement is not
intended by the parties to create any third party beneficiary rights.
(b) PARTIAL INVALIDITY. If any provision or application of this
Agreement is held unlawful or unenforceable in any respect, such
illegality or unenforceability shall not effect other provisions or
applications which can be given effect, and this Agreement shall be
construed as if the lawful and unenforceable provision or application
had never been contained hereby or prescribed hereby.
5
(c) GOVERNING LAW, SUBMISSION TO JURISDICTION. All questions concerning
the construction, validity and interpretation of this Agreement will be
governed by and construed in accordance with the internal law, and not
the law of conflicts of law, of the State of California. EACH OF THE
PARTIES HERETO CONSENTS AND AGREES TO THE JURISDICTION OF ANY STATE
COURT SITTING IN THE CITY OF LOS ANGELES, STATE OF CALIFORNIA, OR ANY
FEDERAL COURT SITTING IN THE CITY OF LOS ANGELES, STATE OF CALIFORNIA,
AND WAIVES ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH
RESPECT TO ANY ACTION INSTITUTED THEREIN.
(d) ASSIGNMENT. This Agreement shall be binding upon the Company and
Agency their successors and assigns and shall inure to the benefit of
Agency and the Company and their successors and assigns; provided,
however, that Agency shall not be permitted to assign Agency's rights
and obligations under this Agreement without the prior written consent
of the Company.
11. LIMITATION OF LIABILITY AND RIGHTS TO OFFSET. The Company's liability to
Agency shall be for prompt payment of commissions due. Neither the Company nor
its affiliates, subsidiaries, suppliers, parent corporation(s), nor any of its
parent affiliates or subsidiaries shall be liable to Agency or any third party
for any special, indirect, incidental, or consequential damages (Including lost
profits) arising from or relating to this agreement. Including without
limitation damages claimed as a result of failure or delay of Company in
approving prospective customers, or damages claimed as a result of any temporary
or permanent failure of the availability or performance of Companies services.
Company's liability for all, whether based in contract, tort (Including without
limitation, strict liability and negligence), warranty or on other legal or
equitable grounds shall be limited solely to money damages and shall not exceed
the amount of commissions due Agency.
(a) Company agrees that Agency shall not be liable to Company for any
incidental, consequential, indirect, or special damages, including lost
revenues or profits, arising from or relating to this Agreement, except
in the event that such damages stem from a willful breach or act of
gross negligence by Agency relating its obligations under this
agreement.
(b) Agency agrees to hold harmless and indemnify Company, its
subsidiaries, officers, directors, and assigns from any and all claims
of third parties arising from acts, whether willful, negligent,
intentional, or fraudulent, that may be committed by Agency, its
employees, subcontractors, or representatives.
(c) In the event Company is required to pay to any third party any
claim for moneys allegedly owed by Agency, Company shall have a right
to offset any such amount required to be paid by Company against
commissions due Agency. In the event any such claim is made against
Company, Company agrees to promptly notify Agency of such claim so that
Agency will have an opportunity to take such actions as Agency deems
proper with respect to such claim.
6
12. FORCE MAJEURE
Company shall not be liable for, and is excused from, any failure to perform or
for delay in the performance of its obligations under this Agreement due to
causes beyond its reasonable control, including without limitation,
interruptions of power or communications services, failure of Company suppliers
or subcontractors, act of nature, governmental actions, fire flood, natural
disaster, or labor disputes.
13. VERIFICATION OF ORDERS
Agency agrees to follow Company's approved verification process as specified by
the Company from time to time. Agency agrees and represents that a minimum of
80% of all orders submitted to Verification Company will successfully pass
through such verification process. In the event that more than 20% of the orders
submitted by Agency do not pass successfully through the verification process,
the Agency agrees that the Company can deduct from the moneys otherwise due
Agency an amount equal to $1 per transaction for all transactions over the 20%
bad orders.
14. SUBCONTRACTING
Agency agrees that any subcontracting with individuals or entities will only be
allowed if performed under a contract with Agency that includes the specific
language of Sections 6, 7, 9, 9.1, 13, and 14. A copy of all subcontractor
contracts must be provided to PowerSource immediately upon execution by Agency.
(The compensation portions of these copies of subcontractor contracts, however,
may be "Blacked out") Agency is directly responsible to ensure subcontractors
comply with these covenants and fully understands that actions of its
subcontractors are as if performed by Agency. If it is found that Agency is
subcontracting without these provisions in place, with copies of these contracts
provided to the Company in a timely manner, this contract can be terminated
immediately with no further commissions due Agency.
15. COORDINATION BETWEEN COMPANY AND AGENCY
(a) START-UP SCHEDULE: Agency will test the script, verification
process, and other procedures associated with the conversion of
customers to Company using the Direct Access Service Request process.
This test period will last long enough to verify that all business
relationships and electronic transfers between parties are operating
properly.
7
(b) TARGETED LEVEL OF CUSTOMER GROWTH : Agency will update Company on
an "as needed" basis, but in no case less than once a week, of the
sales completion progress of its telemarketing activities. Company and
Agency will jointly set monthly target levels of projected customer
growth for at least the first full year of activity under this
Agreement.
(c) TARGETED GEOGRAPHIC AREAS: Company will specify particular
geographic areas in which to concentrate telemarketing efforts. In all
cases this will be within California and within the existing service
territories of the three Utility Distribution Companies (UDCs) that
have been restructured under state law. Company will provide Agency
with the Area Codes and three-digit prefixes to the phone numbers in
these targeted areas.
16. ENTIRE AGREEMENT
(a.) INTEGRATION. This Agreement contains the full, final and exclusive
statement of the agreement between the parties hereto relating to all
matters set forth herein and supersedes all other oral and written
understandings to the contrary.
(b.) COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which will be an original and all of which taken
together will constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
Dated: 6/1/00 Dated: 5/31/00
------------------------- ------------------------
Consumer Sales Solutions, Inc. PowerSource Corporation
/s/ Xxx Xxxxxxx /s/ E. Xxxxxxx Xxxxxxxx
------------------------------- ------------------------------
Xxx Xxxxxxx E. Xxxxxxx Xxxxxxxx
------------------------------- ------------------------------
Title CEO Title President
000 Xxxxxxx Xxx. Xxx 0 0000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000 Xxx Xxxxxxx, Xxxxxxxxxx 00000
Phone: 000-000-0000 Phone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
---------------------------
Federal I.D. No.
8
EXHIBIT A
COMMISSION SCHEDULE
Description:
Agency will earn a commission as listed below for every
confirmed sale. A confirmed sale is a sale in which the
customer is been successfully DASR'ed (transfer is accepted
by their current utility).
ONE-TIME
TYPE OF CUSTOMER ACQUISITION BONUS
Residential $25.00/customer
Payment Schedule:
Acquisition Bonus' will be paid out to Agency on the 15th and
31st of each month from confirmed sale. A confirmed sale is a
sale in which the customer is been successfully DASR'ed
(transfer is accepted by their current utility).
Charge Back:
A customer Charge Back will be assessed to Agency if a
customer, procured by Agency, cancels their service with
PowerSource within the customer's first two (2) PowerSource
billing cycles. The Charge Back is equaled to the Acquisition
Bonus.
The Charge Back will be drawn down from the Deferred Commission
Account assigned to Agency pursuant to Section 3.
9
