EXHIBIT 10.4
** Certain information omitted and filed separately with the Commission
pursuant to a confidential treatment request under Rule 406 of the
Commission.
OWNERTEL, INC.
INDEPENDENT SALES REPRESENTATIVE AGREEMENT
THIS INDEPENDENT SALES REPRESENTATIVE AGREEMENT ("AGREEMENT") is entered into
on ___September 5, 2001_ between OwnerTel, Inc., ("Company"), a Georgia
corporation, with offices at 0000 Xxxxxxxxx Xxxx, #000, Xxxxxxx, Xxxxxxx 00000
and Plenitude, ("Independent Sales Representative") a _____Nevada_____
corporation Individual sales agent; with its principal office located at 0000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000.
BACKGROUND:
OwnerTel, Inc. recruits and appoints individuals and companies to act
as Independent Sales Representatives for the purpose of establishing initial
introductions with qualified accounts that have a need to purchase any
combination of the Telecommunications Services available from
telecommunications providers that have relationships with OwnerTel, Inc.
Independent Sales Representatives are responsible for securing new business for
OwnerTel, Inc. It is believed by OwnerTel, Inc. that Plenitude has the
qualities required to be such an Independent Sales Representative.
AGREEMENT:
NOW, THEREFORE, intending to be legally bound, the parties agree as follows:
1. DESCRIPTION OF REPRESENTATION OwnerTel, Inc. hereby appoints
the entity identified above as a non-exclusive Independent
Sales Representative to identify potential accounts and to
generate new business in accordance with the terms and
conditions established within this Agreement to include any
and all attached Addendum. Representative agrees to use its
best efforts in selling OwnerTel, Inc.'s services to
customers, including having each customer sign a Letter of
Authorization (LOA) approved by OwnerTel, Inc., or via
internet sign-up.
2. DEFINITIONS
A. Billing Period - shall mean the various billing
cycles utilized by OwnerTel, Inc. for Customer
invoicing and collection purposes.
B. Commissions - shall be amounts payable to the
Independent Sales Representative for services
rendered under this agreement.
C. Commission Payment Date - shall mean forty-five days
subsequent to the close of a billing cycle.
D. Customer - shall mean a user of OwnerTel, Inc.
supplied Telecommunications Services that was
secured by the Independent Sales Representative.
OwnerTel, Inc. reserves the sole right to review and
approve or reject all orders submitted by the
Independent Sales Representative.
E. Qualified Revenue - shall mean revenues collected by
OwnerTel, Inc. related to a Customer's usage of Long
Distance Services and or Internet Services.
Independent Sales Representative will receive
commission payments and revenue reports from
OwnerTel, Inc. in accordance with
1
Addendum 1. All taxes, fees, directory assistance,
message units and other non-usage related charges
are excluded from Qualified Revenues.
F. Telecommunications Services - integrated services
consisting of a combination of Long Distance
switched services and Internet dial-up services.
3. EFFECTIVE DATE - SERVICE TERM
A. Term Commencement Date. The term of this Agreement
will commence effective when signed and accepted by
OwnerTel, Inc.
B. Duration of Agreement. This Agreement shall be for
an initial term of one year beginning with the Term
Commencement Date as set forth above. This Agreement
will renew automatically for additional one (1) year
terms unless either party cancels the Agreement by
sending written notice of intent to cancel,
effective with the final day of the Agreement, to
the other party at least thirty (30) days prior to
the expiration of the current term. This Agreement
shall continue and remain in full force until
canceled by either party in accordance with the
provisions as contained within.
4. COMPENSATION.
A. Commissions. OwnerTel, Inc. will pay Independent
Sales Representative a commission in accordance with
"Addendum 1" for each actual subscriber of
Telecommunications Services, which arose directly
from the solicitation efforts of Independent Sales
Representative in accordance with the terms of the
Agreement. As compensation for services rendered
hereunder, OwnerTel, Inc. shall pay to Independent
Sales Representative on or before the Commission
Payment Date, all commissions for Qualified Revenues
that have been invoiced to and collected from
end-user Customers secured by Independent Sales
Representative within five (5) days receipt of these
revenues by OwnerTel, Inc. OwnerTel, Inc.'s records
shall be deemed correct for the purposes of
calculating Qualified Revenues, unless written
OwnerTel, Inc. receives notice within ten (10) days
of Independent Sales Representative's receipt of the
Qualified Revenues Statement. Independent Sales
Representative will be entitled to commissions in
accordance with the guidelines outlined within the
attached Addendum 1. OwnerTel, Inc. reserves the
right to change commissions or rates by providing
the Independent Sales Representative with written
notification ten (10) days prior to the effective
date of such changes. No commission shall be paid on
existing OwnerTel, Inc. accounts conversions or new
accounts that call OwnerTel, Inc. directly to
subscribe for services. No commission shall be paid
on any accounts which are the subject of any
complaint or investigation by any local, state or
federal entity. Further, OwnerTel, Inc. may, at its
sole discretion, exercised in a commercially
reasonable manner, suspend the acceptance of orders
from Independent Sales Representative where there is
an investigation or threatened investigation or
consent decree, judgment, injunction, restraining
order, settlement agreement or agreement or order
similar in nature relating to the conduct of its
business. Representative is obligated to immediately
inform OwnerTel, Inc. of the entry of such judgment,
order or decree.
2
B. Commission Continuation. Upon expiration of the
Agreement's term, in accordance with Item #.B. and
subject to the terms and conditions of
Confidentiality as outlined within Section 11,
OwnerTel, Inc. will continue paying commissions to
the Independent Sales Representative for orders
submitted by the Independent Sales Representatives
and accepted by OwnerTel, Inc. prior to the
Agreement's expiration. Precedent to OwnerTel,
Inc.'s obligation to pay commissions, the Customer's
account must be paid current and the Customer must
be an active Customer. In the event that this
Agreement expires, the Customer will continue to be
a Customer of OwnerTel, or of its service provider,
for monthly-billed revenues. If, for any reason, the
Customer fails to pay OwnerTel, Inc., or its service
provider, for invoiced charges or ceases to be a
Customer of OwnerTel, Inc., or its service provider,
the Company's obligation to pay Independent Sales
Representative commissions will cease immediately.
5. OWNERTEL, INC. RESPONSIBILITIES
OwnerTel, Inc. represents and warrants the following:
A. To the best of OwnerTel, Inc.'s knowledge, each
representation made by OwnerTel, Inc. within this
Agreement is accurate.
B. OwnerTel, Inc. has and will continue to enter into
agreements with various service providers that
OwnerTel, Inc. deems are necessary to enable the
Independent Sales Representative to perform the
services for which it has been appointed.
C. OwnerTel, Inc. has the unrestricted right to grant
the rights conveyed to Independent Sales
Representative herein and OwnerTel, Inc. has the
power and authority to enter into this Agreement and
to grant to Independent Sales Representative the
rights conveyed herein.
6. INDEPENDENT SALES REPRESENTATIVE RESPONSIBILITIES
A. Sales. Independent Sales Representative shall use
its best efforts to solicit, market and sell
Telecommunications Services to prospective Customers
in existing territories currently available, as well
as new territories, as they become available in
accordance with the terms of the Agreement and
applicable law. Independent Sales Representative
shall at all times conduct its efforts in a
commercially reasonable and professional manner and
in compliance with existing law.
B. Authorized Advertising. Independent Sales
Representative shall solicit and obtain from
prospective Customers service orders on forms
supplied and approved by OwnerTel, Inc. for
transmittal to the contact designated by OwnerTel,
Inc. for acceptance or rejection at OwnerTel, Inc.'s
sole discretion. At a minimum, long distance
service, orders will include completion by the
Customer and submission to
3
OwnerTel, Inc. of a Letter of Authorization and
Transfer Service Agreement in accordance with Rule
25-4.188, Florida Administrative Code, as
incorporated by Rule 25-24.490 (or any successor to
that rule).
C. Agent Advertising. Independent Sales Representative
shall not use any promotional, marketing advertising
or other forms of solicitation in any fashion
whatsoever, concerning the sale or delivery of any
of the services or equipment furnished by OwnerTel,
Inc. to Customers without first obtaining OwnerTel,
Inc.'s written approval. Said approvals must be
obtained in writing from an officer of the Company
and at least ten (10) days prior to use of said
materials or solicitation approaches.
D. Misrepresentation. Independent Sales Representative
shall not misrepresent itself as an "authorized
agent" of any of OwnerTel, Inc.'s underlying
carriers.
E. No Provision of Service. Independent Sales
Representative may not provide Telecommunication
Services or any billing collection or repair
service. Customers solicited by Independent Sales
Representative are customers of OwnerTel, Inc., or
its service providers, and remain Customers of
OwnerTel, Inc, or its service providers, after the
termination of this Agreement.
7. OBLIGATION OF THE INDEPENDENT SALES REPRESENTATIVE
A. Compliance with Laws. During the term of this
Agreement, Independent Sales Representative shall
comply with all local, state and federal laws and
regulations applicable to this Agreement or to its
respective business, including, but not limited to,
Section 364.603, Florida Statutes, and Rule
25-4.118, as incorporated by Rule 25-24.490, Florida
Administrative Code. Upon request, Independent Sales
Representative will supply copies to OwnerTel, Inc.
of applicable permits, authorizations, licenses or
similar documentation to substantiate compliance.
B. No Agency. Neither party is authorized to act as an
agent for, or legal representative of, the other
party and neither party shall have the authority to
assume or create any obligation on behalf of, in the
name of, or binding upon the other party.
Independent Sales Representative is an independent
contractor. There is no employer-employee
relationship, joint venture or agency created
hereby. During the term of the Agreement and for
thirty-six (36) months following the termination of
the Agreement, Independent Sales Representative
shall not directly or indirectly, knowingly convert
any OwnerTel, Inc. account to any other
telecommunications carrier.
C. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties' hereto and
their respective heirs, successors and assigns.
D. No Assignment. Neither party shall voluntarily or by
operation of law, assign, transfer, license, or
otherwise transfer all or any part of its rights,
duties or other interests in this Agreement or the
proceeds thereof (collectively, "Assignment"),
without the other party's prior written consent. It
is hereby agreed that such
4
consent shall not be unreasonably withheld or
delayed. Any attempt to make an Assignment in
violation of this provision shall be null and void.
Independent Sales Representative and OwnerTel, Inc.
shall provide written notice to each other of any
change in ownership or control of their
organization. Either party's failure to comply with
the assignment provisions, as contained in this
paragraph, shall give the other, at its sole
discretion, the option to either accept the other's
assignee or to terminate this Agreement. No
assignment shall release the other of its
obligations hereunder.
E. Representation of Authority. Each party represents
and warrants that: (1) the signatory shown below has
the authority to bind the party on whose behalf
he/she is signing (ii) the execution and delivery of
this Agreement and the performance of such party's
obligations hereunder have been duly authorized; and
(iii) the Agreement is valid and legal and is
binding and enforceable upon each of the parties in
accordance with the terms contained herein.
F. Further Assurances. Each party shall, at its own
cost and expense, execute and deliver any and all
further documents and instruments and shall take all
other actions as may be reasonably required or
appropriate to carry out the intent and purposes of
this Agreement.
8. LIABILITY
A. Limitation of Liability and Indemnification.
Independent Sales Representative agrees that
OwnerTel, Inc. shall not be liable for indirect,
consequential, incidental, punitive or exemplary
damages, including without limitation, lost profits
or revenues, credits for service outages or lost
traffic and subscriber credits. Independent Sales
Representative indemnifies and holds harmless
OwnerTel, Inc. from any damages real or implied that
may occur as the result of an interruption or
discontinuance of service.
1. Further, and in addition to the
indemnification obligations set forth
within, Independent Sales Representative
shall be responsible for and shall save,
defend, indemnify, and hold OwnerTel, Inc.,
its directors, officers, employees and
agents free and harmless from any and all
claims (to include claims from End-User and
regulatory agencies), taxes, expenses,
damages, lawsuits, or other liabilities
(including without limitation, reasonable
attorneys' fees and court costs) relating
to or arising out of (i) the operation of
Independent Sales Representative's
business; (ii) Independent Sales
Representative's breach of any of the terms
or provisions of this Agreement.
2. The statute of limitations applicable to
all claims arising under this Agreement
shall be one year from the date the claim
accrues.
9. GOVERNMENT ACTION
A. Severability. If any term or provision of this
Agreement is determined to be illegal,
unenforceable, or invalid in whole or in part, for
any reason, such illegal,
5
unenforceable, or invalid provisions or part(s)
thereof shall be stricken from this Agreement. Such
provisions shall not affect the legality,
enforceability, or validity of the remainder of the
Agreement or the effected section. To the extent
possible, the stricken provision shall be replaced
with a legally enforceable and valid provision that
is similar in tenor to the stricken provision.
B. Regulations. This Agreement applies to all present
and future valid orders and is intended to comply
with all regulations of any government agency that
has jurisdiction over the subject matter hereof and
to the laws of the United States of America, any of
its states, and/or any foreign governmental agencies
that have jurisdiction. In the event this Agreement,
or any of its provisions, shall be found to be
contrary to or in conflict with any such order,
rule, regulation or law, this Agreement shall be
deemed modified to the extent necessary to comply
with said order, rule, regulation or law and shall
be modified in such a way as to be consistent with
the form, intent and purpose of this Agreement.
10. MISCELLANEOUS
A. Force Majeure. The parties obligations under this
Agreement are subject to, and neither party shall be
liable for, delays, failures to perform (except the
payment of money by Customer for services utilized
hereunder), damages, losses, destruction, or
malfunction of any equipment or any consequence
thereof caused or occasioned by, or due to, fire,
flood, water, the elements, labor disputes or
shortages, utility curtailments, power failures,
explosions, civil disturbances, governmental
actions, shortages of equipment or supplies,
unavailability of transportation, acts or omissions
of third parties, or any other cause beyond the
parties' reasonable control.
B. No Waiver. The failure of either party to enforce or
insist upon compliance with any of the provisions of
this Agreement or the waiver thereof, in any
instance, shall not be construed as a general waiver
or relinquishment of any other provision of this
Agreement.
C. Amendment. This Agreement may not be amended except
by an instrument in writing, executed by the
parties. No modification or amendment hereto shall
be effected by the acknowledgment or acceptance by
either party of any Independent Sales Representative
order, sales acknowledgment or other similar form
from the Company.
D. Interpretation. The words and phrases used herein
shall have the meaning generally understood in the
telecommunications industry. This Agreement shall be
construed in accordance with its fair meaning and
not for or against either party on account of which
party drafted this Agreement.
E. Third Party Beneficiaries/Parties in Interest. This
Agreement has been made and is made solely for the
benefit of OwnerTel, Inc. and Independent Sales
Representative and their respective successors and
permitted assigns. Nothing in
6
this Agreement is intended to confer any
rights/remedies under or by reason of this Agreement
on any third party.
F. Dispute Resolution. In the event of any controversy
or claim arising from or related to this Agreement,
its performance or interpretation, the parties, in
good faith, initially will attempt to resolve the
dispute among themselves. Failing such resolution,
the parties mutually agree to submit the matter to
arbitration before the American Arbitration
Association ("AAA"). The prevailing party in any
arbitration shall be entitled to receive, in
addition to any damages or other relief, all costs
reasonably incurred, including reasonable attorneys'
fees.
G. Governing Law. This Agreement shall be in all
respects, governed by and construed and enforced in
accordance with the laws of the State of Georgia,
including all matters of construction, validity and
performance. Any action to enforce or interpret the
terms of this Agreement shall be instituted and
maintained in the Superior Court of the County of
Xxxxxx, Georgia. Independent Sales Representative
hereby consents to the jurisdiction of such court
and waives any objections to such jurisdiction. In
any action or proceeding arising out of this
Agreement, the party prevailing in such action shall
be entitled to recover its reasonable attorney's
fees and costs.
H. Counterparts. This Agreement may be executed in
several counterparts, each of which shall constitute
an original, but all of which shall constitute the
same instrument.
11. PROPRIETARY INFORMATION
A. Confidentiality and Trade Secrets.
1. Each party agrees that all information
furnished to it and identified by the other
party as being confidential or proprietary
information or trade secrets (collectively
referred to as "Proprietary Information"),
is and shall continuously remain the sole
and exclusive property of the party
furnishing the same (the "Disclosing
Party") and the other party receiving the
same ("the Receiving Party"). Each party
shall treat the Proprietary Information and
the contents of this Agreement in a
confidential manner and, except to the
extent necessary in connection with the
performance of its obligations under this
Agreement, neither party shall directly or
indirectly disclose the same to any third
party without the written consent of the
Disclosing Party.
2. The Proprietary Information is to be used
by the Receiving Party only for the
purposes contemplated herein and the
Receiving Party shall not disclose the same
to anyone other than its employees who have
a need to know and who agree to be bound by
the terms of this Agreement. The
Proprietary Information shall not be copied
or retained by the Receiving Party in
written form and all originals and any
copies or summaries thereof shall be
returned to the Disclosing Party upon
request.
7
3. Each party acknowledges that its breach or
threatened breach of this section may cause
the Disclosing Party irreparable harm,
which would not be adequately compensated
by monetary damages. Accordingly, in the
event of any such breach or threatened
breach, the Receiving Party agrees that
equitable relief, including temporary
restraining orders or preliminary or
permanent injunctions, shall be an
available remedy in addition to any other
legal remedies to which the Disclosing
Party may be entitled.
4. Neither party shall use the name, trade
name, service marks, trademarks, or printed
materials of the other party, in any
promotional or advertising material,
statement, document, press release or
broadcast without the written consent of
the other party.
12. Notices.
A. All notices, demands, requests and other
communications required or permitted hereunder shall
be in writing and shall be deemed to be delivered
when actually received, when sent by certified mail,
return receipt requested, reputable overnight
carrier or facsimile, to the address set forth
below:
To OwnerTel, Inc.: To Plenitude:
0000 Xxxxxxxxx Xxxx, #000 Xxxxxxx:
--------------------
Xxxxxxx, Xxxxxxx 00000 Title:
-------------
Address:
--------------------
--------------------
Ph: (000) 000-0000 Ph:
Fax: (000) 000-0000 -----------------
Fax:
----------------
13. SURVIVAL OF OBLIGATIONS
A. This Section 13 and the Sections entitled Liability,
Binding Effect, Proprietary Information,
Governmental Action, Governmental Law and Notices
shall survive the termination, cancellation or
expiration of this Agreement.
14. ENTIRE AGREEMENT
A. This Agreement sets forth the entire understanding
and supercedes prior agreements between the parties
relating to the subject matter contained herein and
merges all prior discussions between them, and
neither party shall be bound by any definition,
condition, provision, representation, warranty,
covenant or promise other than as expressly stated
in their Agreement or as is contemporaneously or
subsequently set forth in writing and executed by a
duly authorized officer or representative of the
party to be bound thereby.
8
14. OWNERTEL, INC. APPROVAL
A. This Agreement is subject to final approval by
OwnerTel, Inc. and shall not be binding unless
executed by OwnerTel, Inc. In order to be binding,
any modifications to this Agreement must be in
writing and signed by an officer of OwnerTel, Inc.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective on the date first set forth above.
OWNERTEL, INC. PLENITUDE
By: /s/ Xxxxxxxxx Xxxxx By: /s/ Xxxx XxXxx
------------------------------- -------------------------------
Xxxxxxxxx Xxxxx, Secretary Xxxx XxXxx, Owner
0000 Xxxxxxxxx Xxxx, #000 0000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000 Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Ph: (000) 000-0000 Ph: (000) 000-0000
Fax: (000) 000-0000 Fax:
Federal ID#00-0000000 Federal ID#
9
ADDENDUM TO OWNERTEL'S
AGREEMENT WITH PLENITUDE
The rate plan for Plenitude is ** per minute with six-second billing for
interstate calling. Intrastate and intralata calling as per attached rate sheet.
OwnerTel, Inc. will pay ** to Plenitude for these services. Internet services
will be sold at ** and OT will pay ** to Plenitude.
OwnerTel, Inc. will provide tracking of customers to independent
representatives and provide a breakdown of commissions to be paid to each of
Plenitude's representatives. OwnerTel, Inc. will supply this information along
with Plenitude's ** check.
The commissions are based on long distance usage only. OwnerTel, Inc. will
provide on-line as well as hard-copy sign up for Plenitude representatives for
long distance and internet service.
** Certain information omitted and filed separately with the Commission
pursuant to a confidential treatment request under Rule 706 of the
Commission.
10
