Execuserve Corp. Independent Sales Representative Agreement
Execuserve
Corp.
THIS AGREEMENT is made and
entered into this 15 day of June, 2010 and between Execuserve Corp., a Virginia
Corporation, having its principal place of business at 0000 Xxxx Xxxxxx,
Xxxxxxxxxx XX 00000 (hereinafter referred to as “EXECUSERVE”) and EPC, LLC,
having its principal place of business at Xxx 000, Xxxxxxx, XX 00000 (“Sales
Representative.”)
RECITALS
A.
|
EXECUSERVE
is in the business of providing workforce automation services to its
customers and desires to retain Sales Representative on a non-exclusive
basis to secure new customers for its workforce automation
services.
|
B.
|
Sales
Representative desires to sell Execuserve’s workforce automation services
to new customers and has the professional expertise to sell and market
workforce automation services.
|
C.
|
“EXECUSERVE”
shall also mean to include tests from eSkill and Understanding Corp, as
well as the eLearnNow LMS system when EXECUSERVE utilizes one to provide
service.
|
NOW
THEREFORE, in consideration of the mutual covenants and promises made herein,
the parties agree as follows:
1.
|
TERM
AND TERMINATION
|
1.1
|
Term of
Agreement. Except as otherwise provided herein, the term
(the “Term”) of this Agreement shall be for a period of one (1) year,
commencing on June 1, 2010, upon execution of this
agreement. Thereafter, the Agreement shall remain in force and
effect unless and until terminated by either party upon thirty (30) day’s
written notice to the other party.
|
1.2
|
Termination for
Cause. Notwithstanding anything to the contrary
contained herein, EXECUSERVE may terminate this Agreement at any time
during the Term immediately upon written notice,
to the Sales Representative in the event
that:
|
|
(a)
|
Sales
Representative makes (or is discovered to have made) any material
false representations, reports, or claims to EXECUSERVE
or to any third party in connection with this Agreement, the services of
EXECUSERVE, or EXECUSERVE as a whole;
or
|
|
(b)
|
Sales
Representative engages in fraudulent, criminal or negligent conduct or
violates any laws in the connection with the business relationship of the
parties or the performance of its services hereunder;
or
|
|
(c)
|
Sales
Representative attempts to assign this Agreement or any of Sales
Representative’s duties under this Agreement to another
party.
|
Initials
[s]JAR
|
1
|
Initials
[s]
WTE
|
(EXECUSERVE)
|
(
Sales Rep)
|
|
Execuserve
EPC Sales Rep Agreement Form V12-3
|
|
(d)
|
Sales
Representative markets, sells, or assist any third party in the sale of
any products that are competitive with EXECUSERVE workforce automations
services.
|
|
(e)
|
Sales
Representative continues to violate any provision(s) of this agreement
after 5 days notice to cure
|
2.
|
RETENTION
OF SALES REPRESENTATIVE
|
2.1
|
Retention.
EXECUSERVE hereby retains Sales Representative on a non-exclusive basis to
perform the tasks and responsibilities specified herein under the terms
and conditions stated in this Agreement. During the Term and
thereafter, EXECUSERVE reserves the right, without obligation or liability
to Sales Representative, to market the same workforce automations services
as EXECUSERVE deems appropriate, whether in any territory including but
not limited to the Designated Territory (as defined
herein).
|
2.2
|
Sales Representative’s
Authority. Sales Representative shall perform the duties and
provide the services specified in this Agreement, which shall consist of
marketing those workforce automation services set forth in Exhibit A (the
“EXECUSERVE Services”) to potential customers. During the term
of this agreement, the Sales Representative shall not market, sell, or
assist any third party in the sale of any products that are competitive
with EXECUSERVE workforce automations services. All customers obtained
through the efforts of the Sales Representative shall belong to
Execuserve. Sales Representative at all times, during the term
of this agreement shall act in good faith assisting in the retention of
all such customer as EXECUSERVE customers, on an on-going
basis.
|
2.3
|
EXECUSERVE reserves
the right, from time to time, to modify the EXECUSERVE
Services. Sales Representative shall not have the authority to
bind EXECUSERVE, except as expressly set forth herein. All customer
billing and collection shall be exclusively performed by
Execuserve.
|
2.4
|
EXECUSERVE Dealings
With Customers. EXECUSERVE shall have the right to deal
directly with the customer in all matters relating to the provisioning of
EXECUSERVE Services, including but not limited to additional marketing of
EXECUSERVE Services.
|
3.
|
COMPENSATION
|
Payment
of Commission. EXECUSERVE shall pay Sales
Representative a commission (the “Commission”) based upon collected Net Billed
Revenue (”Net Billed Revenue”) from Firm Orders (“Firm Orders”) secured by Sales
Representative for EXECUSERVE Services and for which the Sales Representative is
also the procuring cause as determined by
EXECUSERVE. Procuring cause is defined as the Sales
Representative having had one or more meetings, after the date of this agreement
with the client and has identifiable contacts by name and has subsequently
registered the prospect with Execuserve in writing. Net Billed Revenue is all
billing to customer less, if applicable, 5% for merchant credit card charges,
actual charges for taxes, hardware, shipping, software integration or
customization, and technical support.
Initials
[s]JAR
|
2
|
Initials
[s]
WTE
|
(EXECUSERVE)
|
(
Sales Rep)
|
|
Execuserve
EPC Sales Rep Agreement Form V12-3
|
3.1
|
Compensation Rate (as
per attached Exhibit A).
|
3.2
|
Commissions After
Term. Except as provided in Section 3.4 or otherwise in
this Agreement, Commissions will continue to be paid for a period of 12
months on Net Billed Revenue received by EXECUSERVE after termination of
this Agreement for each customer as long as the customer is a EXECUSERVE
customer and Sales Representative acts in good faith to retain such
customer as a EXECUSERVE customer, including working with EXECUSERVE on an
on-going basis to evaluate customers’ satisfaction with EXECUSERVE
Services. However, in the event that the total monthly Net
Billed Revenue for Sales Representative is less than $1,500.00 following
the termination of this Agreement, thereafter EXECUSERVE shall have no
obligation to pay Commissions for EXECUSERVE Services rendered to Sales
Representative.
|
3.3
|
Commission
Forfeiture. In the event that EXECUSERVE terminates this
Agreement for the reasons stated in section 1.2, or in the event that
Sales Representative breaches the provisions of Section 7 or 8, then,
notwithstanding Section 3.3, EXECUSERVE’s obligation to pay Commissions to
Sales Representative shall immediately terminate, and Sales Representative
agrees that it shall make no further claims for any Commission
hereunder.
|
3.4
|
Provision for Bad
Debt. In the event EXECUSERVE cancels a customer
sold by Sales Representative for non-payment by the customer, Sales
Representative agrees to refund to EXECUSERVE via charge back to Sales
Representative, any commissions paid on Net Billed Revenue uncollected or
chargeback from the customer. EXECUSERVE’s rights
under this section may be exercised by EXECUSERVE at any time after
EXECUSERVE, in its sole discretion, deems the customer’s account
delinquent. EXECUSERVE shall have no obligation to initiate any
legal proceedings against such a delinquent customer, prior to exercising
EXECUSERVE’s rights under this section or thereafter, nor shall EXECUSERVE
pay Sales Representative commission on any funds collected after such
termination, unless EXECUSERVE in its sole discretion reinstates said
customer.
|
4.
|
SALES
REPRESENTATIVE RESPONSIBILITIES
|
4.1
|
Marketing. Sales
Representative shall use good faith efforts to diligently market
EXECUSERVE services to its customers. Such marketing shall be
consistent with, and subject to, the terms and conditions set forth
herein, EXECUSERVE’s then current price list, (which may from time to time
be amended at the discretion of EXECUSERVE), applicable laws and
EXECUSERVE’s policies for the sale of its services (which may from time to
time be amended at the discretion of EXECUSERVE). Sales
Representative may not offer any terms or conditions on behalf of
EXECUSERVE which conflict with relevant prices, policies, or contracts or
which differ from the terms set forth in Exhibit
A..
|
4.2
|
Periodic
Meetings. Sales Representative agrees to meet with
EXECUSERVE at mutually agreed upon times, if requested by EXECUSERVE, no
less frequent than quarterly, to discuss sales activities. Such
meetings shall include, at a minimum, providing present and projected
customer contact information, sales forecasts, sales to date and any
customer problems.
|
Initials
[s]JAR
|
3
|
Initials
[s]
WTE
|
(EXECUSERVE)
|
(
Sales Rep)
|
|
Execuserve
EPC Sales Rep Agreement Form V12-3
|
4.3
|
Sales Representatives
Conduct. Sales Representative shall be governed in all
dealings with such customers by the highest standards of honesty,
integrity, and fair dealing, including compliance with all applicable
laws, ordinances and regulations, and shall do nothing which would attend
to discredit, dishonor, reflect adversely upon, or in any manner injure
the reputation of EXECUSERVE or upon the services covered by this
Agreement and the quality image associated with EXECUSERVE Services and
EXECUSERVE as determined by EXECUSERVE. Sales Representative
shall be responsible for and must obtain authorized signatures of
customer’s Sales Representatives on EXECUSERVE customer agreement forms,
as well as correct information from the customer regarding the customer’s
service requirements and, when requested by EXECUSERVE, Sales
Representative shall obtain appropriate credit information as specified by
EXECUSERVE. EXECUSERVE shall have no obligation to pay
Commissions to Sales Representative in connection with any EXECUSERVE
Services rendered to a customer procured by Sales Representative if Sales
Representative has provided EXECUSERVE with erroneous or inaccurate
information regarding such
customer.
|
4.4
|
Customer
Complaints. Sales Representative shall promptly report
to EXECUSERVE all customer service complaints regarding EXECUSERVE
Services.
|
4.5
|
Insurance. Notwithstanding
the provisions of the Section 9, Sales Representative shall obtain and
maintain, during the Term, at its own cost and expense, adequate insurance
coverage, as may be deemed appropriate by EXECUSERVE, including but not
limited to automobile insurance, general liability and worker’s
compensation, if applicable. Sales Representative shall furnish
a certificate naming Execuserve as additional insured within 30 days of
the execution of this agreement.
|
5.
|
PRICING
AND TERMS OF PRODUCT OFFERINGS
|
5.1
|
EXECUSERVE
Rights. EXECUSERVE retains the sole and absolute right
to determine the prices and terms under which it will offer EXECUSERVE
Services. This includes, but is not limited to, the right to
change prices, restrict offerings, amend regulations, or entirely
discontinue the offering of specific services, with or without the consent
of Sales Representative and without incurring any liability to Sales
Representative. Any such change, restriction, amendment or
discontinuance shall be at EXECUSERVE’s sole discretion, and will become
effective on the date specified by
EXECUSERVE.
|
5.2
|
No
Deviation. Sales Representative shall not, in any
communication with customers or prospects, offer prices for services that
deviate form EXECUSERVE’s published prices, nor will Sales Representative
offer volume discounts, rebates, waivers, or any other prices adjustments,
except with the express written authorization of EXECUSERVE and such price
adjustments may be subject to modification of Sales Representative’s
compensation.
|
Initials
[s]JAR
|
4
|
Initials
[s]
WTE
|
(EXECUSERVE)
|
(
Sales Rep)
|
|
Execuserve
EPC Sales Rep Agreement Form V12-3
|
6.
|
CONFIDENTIALITY
|
EXECUSERVE
and Sales Representative acknowledge that this Agreement creates a relationship
of confidence and trust with respect to all information of a confidential,
proprietary or trade secret nature disclosed by or on behalf of EXECUSERVE to
Sales Representative and by Sales Representative to EXECUSERVE that relates to
the business of EXECUSERVE, its affiliates, customers, suppliers and vendors and
the EXECUSERVE Services (in the aggregate, the “Proprietary Information”) and as
relates to the business of Sales Representative, its affiliates, customers,
suppliers and vendors and the Sales Representative services. Such
Proprietary Information includes, but is not limited to:
(a)
|
technical
information, including without limitation, techniques, new ideas,
discoveries, inventions, developments, know-how and trade secrets (whether
developed by EXECUSERVE, an affiliate, employee or Sales Representative);
and
|
(b)
|
business
information, including without limitation, information relating to costs,
pricing, profit margins, markets and suppliers, business plans and
projections, financial, accounting, legal and regulatory data, names,
addresses and telephone numbers of current or prospective customers and
their respective service or product requirements, credit histories and
trade names, sales, marketing and advertising plans, marketing and
advertising budgets, rates of attrition, right-of-way plans and
agreements, building access plans and agreements, prospective
or actual regulatory strategies, prospective or actual local government
franchises, licenses or similar permissions to use public ways, and or
commercial information; and
|
(c)
|
Technical
and/or business information furnished by third parties to EXECUSERVE,
including prospects, customers, suppliers, franchisers and
vendors.
|
(d)
|
At
all times during and after the Term, Sales Representative and EXECUSERVE
shall keep all Proprietary Information in confidence and shall not
disclose such Proprietary Information to anyone, or directly or indirectly
use any of such Proprietary Information for their own benefit or for the
benefit of any person or entity without the prior consent of the
information’s provider, which may be withheld in its sole
discretion. Upon any termination of this Agreement, or upon the
request of EXECUSERVE or Sales Representative, the party so requested
shall promptly deliver to the other party all Proprietary Information, and
no party shall retain any documents or materials or copies thereof
containing any Proprietary
Information.
|
(e)
|
Sales
Representative represents and warrants that performance of all the terms
of this Agreement and Sales Representative’s duties as a Sales
Representative of EXECUSERVE will not breach any similar commitment or
proprietary information agreement with any other former employer or
party. Sales Representative represents and warrants that it
will not bring to EXECUSERVE or use in the performance of Sales
Representative’s duties for EXECUSERVE any documents or materials of a
former employer or other entity that are so restricted or any assets
(tangible or intangible) that may be owned by a Third
Party.
|
(f)
|
Both
parties agree that in the event of a breach of this Section 6 by Sales
Representative, they may suffer irreparable harm and in addition to
terminating this Agreement, will be entitled to injunctive relief to
enforce this Agreement without the need to post bond and that such relief
shall be in addition to, and not lieu of any monetary damages or such
other relief a court of law may
award.
|
Initials
[s]JAR
|
5
|
Initials
[s]
WTE
|
(EXECUSERVE)
|
(
Sales Rep)
|
|
Execuserve
EPC Sales Rep Agreement Form V12-3
|
7.
|
PROHIBITED
CUSTOMER AND EMPLOYEE CONTACT
|
(a)
|
During
the Term and for a period of two (2) years thereafter, Sales
Representative shall not, whether on its own account or for the account of
any third party, directly or indirectly, contact, solicit, participate in
any meeting or discussion with or provide any information to any then
existing customer of EXECUSERVE (“Existing Customer”) for the purpose of
soliciting such customer to obtain any type of workforce automations
services from any other entity or conducing such customer to terminate its
business with EXECUSERVE.
|
(b)
|
During
the Term and for a period of two (2) years thereafter, Sales
Representative will not directly or indirectly, for its own account or the
account of a third party, contact or solicit (or in any manner participate
in any contract, solicitation, discussions or meetings with) any then
existing employee of EXECUSERVE for the purpose of encouraging or inducing
such employee to terminate their employment with
EXECUSERVE.
|
(c)
|
Sales
Representative acknowledges that, in the event that it breaches the
provisions of this Section 7, EXECUSERVE may suffer irreparable harm,
which is difficult to measure in monetary terms. In the event
that Sales Representative breaches the terms of this section, in addition
to terminating this Agreement, EXECUSERVE may also seek any other legal or
equitable relief to which EXECUSERVE may be entitled without the need to
post bond and that such relief shall be in addition to, and not in lieu of
any monetary damages or such other relief a court of law may
award.
|
8.
|
INDEMNIFICATION
|
8.1
|
Sales
Representative shall indemnify and hold harmless EXECUSERVE and its
officers, directors, agent and employees, from and against any and all
claims, demands, causes of action, losses, damages, costs and expenses
(including attorney fees hereinafter “Claims”) arising out of or in any
manner relating to:
|
|
(a)
|
Sales
Representative’s material breach of any of the terms of this
Agreement;
|
|
(b)
|
Sales
Representative’s misrepresentation regarding the terms and provisions of
EXECUSERVE Services to customers, including any action of Sales
Representative in which Sales Representative falsely represents that Sales
Representative has authority to bond
EXECUSERVE;
|
|
(c)
|
Sales
Representative’s activities relating to the marketing of the EXECUSERVE
Services to EXECUSERVE customers;
and
|
|
(d)
|
Any
claims for withholding or other taxes that might arise or be imposed due
to this Agreement or the performance
hereof.
|
Initials
[s]JAR
|
6
|
Initials
[s]
WTE
|
(EXECUSERVE)
|
(
Sales Rep)
|
|
Execuserve
EPC Sales Rep Agreement Form V12-3
|
|
8.2
|
In
addition to the rights set out in this Section 9, EXECUSERVE reserves the
right to withhold payment of Commission due Sales Representative under
this Agreement in order to recover expenses for Claims covered by this
section.
|
|
8.3
|
EXECUSERVE
shall indemnify and hold harmless Sales Representative and its officers,
directors, agents, and employees from and against any and all claims
arising out of or relating to:
|
|
(a)
|
EXECUSERVE’s
material breach of any of this
Agreement;
|
|
(b)
|
EXECUSERVE’s
misrepresentations regarding the terms and provisions of EXECUSERVE’s
services to customers.
|
9.
|
USE
OF EXECUSERVE INTELLECTUAL PROPERTY
|
Pursuant
to the terms and conditions contained in this Agreement, Sales Representative
may identify itself as a "Execuserve Sales Representative.” Sales
Representative’s use of such identification shall be limited to the sales and
marketing of EXECUSERVE Services to third parties.
EXECUSERVE
grants Sales Representative the non-exclusive, personal and non-transferable
right and license to use the xxxx and the trade name “Execuserve” (see logo,
attached as Exhibit B, hereafter the “Xxxx.”) Sales Representative’s
use of the Xxxx shall be limited solely to the sales and marketing of EXECUSERVE
Services to third parties.
All
rights in the Xxxx other than those specifically licensed herein are reserved by
EXECUSERVE.
10.
|
GENERAL
PROVISIONS
|
10.1
|
Dispute Resolution
(Arbitration Clause). Any and all disputes,
controversies and claims arising out of or relating to this Agreement or
concerning the respective rights or obligations of the parties hereto
shall be settled and determined by arbitration in Nassau County, New York
before a panel of three (3) arbitrators pursuant to the Commercial Rules
then obtaining of the American Arbitration Association. The
parties agree that the arbitrators, in their discretion, may award
specific performance or injunctive relief (but not consequential or
punitive damages) and reasonable attorney’s fees and expenses to any party
in any arbitration brought hereunder. However, in any
arbitration proceeding brought hereunder, the arbitrators shall have the
power to change, modify or alter any express condition, term or provision
hereof and to that extent the scope of their authority is
limited. The arbitration award shall be final and binding upon
the parties and judgment thereon may be entered in any court having
competent jurisdiction.
|
10.2
|
Assignment. EXECUSERVE
may assign its rights under this Agreement and this Agreement shall inure
to the benefit, of the successors and assigns of EXECUSERVE, and shall be
binding upon Sales Representative. Sales Representative may not
assign its rights or obligations under this Agreement without the advance
written consent of EXECUSERVE, which consent may be withheld by EXECUSERVE
in its sole discretion.
|
Initials
[s]JAR
|
7
|
Initials
[s]
WTE
|
(EXECUSERVE)
|
(
Sales Rep)
|
|
Execuserve
EPC Sales Rep Agreement Form V12-3
|
10.3
|
Entire Agreement and
Amendment. This Agreement represents the entire
understanding of the parties with respect to the specific matter of this
Agreement and supersedes all previous understandings, written or oral,
between the parties with respect to the subject matter. A
writing executed by both parties hereto may only amend this
Agreement. Failure by EXECUSERVE or Sales Representative to
insist upon the other party’s compliance with any provision in this
Agreement shall not be deemed a waiver of such
provision.
|
10.4
|
Notices. All
notices required or permitted under this Agreement shall be in writing and
shall be delivered personally and receipted for, sent by overnight
commercial air courier (such as Federal Express), to the parties at their
address set forth above or to such address as a party shall have notified
the other party. Any such notice shall be deemed effective and
delivered upon the earliest to occur of actual delivery, if delivered
personally, one (1) business day after shipment by commercial air courier,
or three (3) business days after mailings to the parties at the address
set forth below:
|
To
Sales Representative:
|
To
EXECUSERVE:
|
EPC,
LLC
|
Execuserve
Corp.
|
XX
Xxx 000
|
00
Xxxx Xxxxxx – Ste 308
|
Xxxxxxx,
VA 23109
|
Xxxx
Xxxx, Xxx Xxxx 00000
|
Attn:
Xxx Xxxx
|
Attn: Xxxx
Xxxxxxxxx
|
10.5
|
Independent
Contractor. Sales Representative and EXECUSERVE,
expressly intend that no employment, partnership, or joint venture
relationship is created by this Agreement, hereby agree as
follows:
|
|
(i)
|
Sales
Representative shall act at all times as an independent contractor
hereunder and shall hold itself out to third parties as an independent
contractor of EXECUSERVE.
|
|
(ii)
|
Neither
Sales Representative nor anyone employed by or acting for or on behalf of
Sales Representative shall ever be or be construed as an employee of
EXECUSERVE and EXECUSERVE shall not be liable for employment or
withholding taxes relating to Sales Representative or any employee of
Sales Representative.
|
|
(iii)
|
Sales
Representative shall be free to contract with, and provide Sales
Representative’s services to, parties other than EXECUSERVE during the
term of this Agreement, subject to the provisions
hereof.
|
|
(iv)
|
Sales
Representative shall not make any commitment or incur any charge or
expense in the name of EXECUSERVE without the prior written approval of
EXECUSERVE, which may be withheld in EXECUSERVE’s sole
discretion.
|
|
(vi)
|
Sales
Representative expressly acknowledges and agrees that except to the extent
expressly provided herein, neither Sales Representative nor anyone
employed by or acting for or on behalf of Sales Representative by license,
franchise, title of interest, in EXECUSERVE or any tangible or intangible
property of EXECUSERVE, including, without limitation, trade names,
trademarks, service marks or Proprietary
Information.
|
Initials
[s]JAR
|
8
|
Initials
[s]
WTE
|
(EXECUSERVE)
|
(
Sales Rep)
|
|
Execuserve
EPC Sales Rep Agreement Form V12-3
|
IN
WITNESS WHEREOF, EXECUSERVE and Sales Representative represent that they have
read this Agreement, understand it and agree to be bound by all the terms and
conditions stated herein.
EPC,
LLC
|
Execuserve
Corp.
|
|||
By:
|
[s]Xxxxxxx Xxxxxx Xxxx
|
By:
|
[s]Xxxxx X. Xxxxxxxx,
Xx.
|
|
Title:
|
Member
|
Title:
|
President & CEO
|
|
Date:
|
6/15/2010
|
Date:
|
6/15/2010
|
Initials
[s]JAR
|
9
|
Initials
[s]
WTE
|
(EXECUSERVE)
|
(
Sales Rep)
|
|
Execuserve
EPC Sales Rep Agreement Form V12-3
|