SALES REPRESENTATIVE AGREEMENT
THIS SALES REPRESENTATIVE AGREEMENT (hereinafter "Agreement") is
made and entered into between GTC Telecom, Inc., its assigns, and
successors (hereinafter "GTC") and XxXxxxx.xxx, Inc., its assigns,
and successors (hereinafter "OhGolly"), on this 9th day of March, 1999.
RECITALS
WHEREAS GTC Telecom, Inc. is a corporation duly organized
and existing under the laws of the State of Nevada with offices
located at 0000 Xxxxxx Xxx., Xxxxx X-0, Xxxxx Xxxx, XX 00000; and
WHEREAS OhGolly, Inc. is a corporation duly organized and
existing under the laws of the State of California with offices
located at 00000 Xxxxx Xxxx., Xxxxx 000, Xxxxxxxxxx Xxxxx, XX 00000;
and
WHEREAS GTC and OhGolly desire to enter into a legal and
binding agreement whereby OhGolly agrees to market GTC's Internet
Web Page Hosting services according to the terms of the Agreement as
set forth herein;
NOW, THEREFORE, GTC and OhGolly agree as follows:
MARKETING, PROMOTING, AND ADVERTISING
OF INTERNET WEB PAGE HOSTING SERVICES
1. APPOINTMENT OF OHGOLLY. Effective upon execution of this
Agreement, GTC hereby appoints OhGolly as its
non-exclusive independent marketing distributor, to
promote, market and distribute GTC's Internet Web Page
Hosting services at the rate plans and terms set forth in
this agreement. OhGolly hereby accepts its appointment
subject to the terms, conditions and limitations set forth
herein.
2. RATE PLAN. OhGolly agrees to market GTC's Internet Web
Page Hosting services at the rates set by GTC. Prior to
commencement of OhGolly's duties under this Agreement, GTC
shall furnish OhGolly with copies of its current price
lists and rate plans for GTC's Internet Web Page Hosting
service. OhGolly shall quote to Customers only those
prices and rates authorized by GTC.
3. INVOICES. GTC shall render all invoices directly to the
Customers and shall send copies of all Commissionable
invoices to OhGolly. Payments by Customers shall be made
directly to GTC.
4. NONSOLICITATION. OhGolly, its officers, directors, and
employees, including but not limited to, Xxxx Xxxxxxx XX,
Xxxx Xxxxxxx, Xxxx Xxxxxxx, and Xxxx Xxxxxxxx, acknowledge
that GTC's relationships with its employees, customers,
clients, suppliers, sponsors and other persons are
valuable business assets. To forestall any use of any
such information, OhGolly and its shareholders, officers,
directors, and employees agree that for the term of this
Agreement and for a period of one (1) year thereafter,
OhGolly and its shareholders, officers, directors, and
employees shall not, directly or indirectly, attempt to
remarket customer accounts which have been sold to GTC by
OhGolly.
5. TRADEMARKS. OhGolly shall not use GTC's name or marks
without the express written consent of GTC.
6. RETURN OF MARKETING MATERIALS. OhGolly shall return all
marketing, promotional, advertising, or any other sales
literature, information, or confidential information
provided to OhGolly by GTC within thirty (30) days of the
effective termination of this agreement.
7. PRESS RELEASES AND OTHER MARKETING MATERIALS. Either
party to this agreement must obtain approval for any and
all press releases, advertisements, or any other marketing
materials to be used, prior to dissemination.
SALE CONFIRMATION
8. TIMING OF COMMENCEMENT OF SALES. An order (the
"Customer") solicited by OhGolly will be considered a sale
( "Sale") upon the completion of the following:
(a) OhGolly has successfully completed a personal Internet
Web Page for the Customer;
(b) OhGolly has sent the Customer a Fulfillment Package
(an example of which is attached hereto was Exhibit "A"); and
(c) GTC has assigned an Authorization number to the
Customer.
Upon the occurrence of paragraph 8(a)(b) & (c), the order
shall be considered a Sale and OhGolly will receive its
Commission as outlined in paragraph 9 & 10.
COMMISSIONS
9. SALES COMMISSION. GTC agrees to pay OhGolly $100 per each
Sale (the "Sales Commission") within the time period
specified in paragraph 10.
10. SUBMISSION OF SALES AND PAYMENT OF COMMISSION. OhGolly
agrees to submit an invoice for all Sales to GTC weekly by
11:59 p.m. Friday, Pacific Standard Time. OhGolly shall
receive compensation for all such submitted Sales as follows:
GTC shall pay OhGolly 65% of all Commissions due on a weekly
basis within seven (7) days from the date of submission to
GTC. GTC shall pay the balance of 35% of the Commission
within sixty days from the date of submission to GTC. Sales
submitted after the deadline will be payable on the next
payment cycle.
11. COMMISSION CREDIT. Pursuant to that certain Purchase and
Services Agreement dated March 9, 1999 between GTC and
Service One Communications, Inc. (the "Service One
Agreement"), OhGolly agrees to credit GTC towards the payment
of any Commissions owed to OhGolly under this Agreement, any
credit due to GTC pursuant to paragraph 3(d) of the Service
One Agreement.
12. MONTHLY STATEMENTS. GTC shall submit to OhGolly
monthly statements of Commissions due and payable to OhGolly
under the terms of this Agreement, with reference to the
specific invoices on which the Commissions are being paid.
13. INSPECTION OF RECORDS. OhGolly shall have the right, at its
own expense and not more than once in any four (4) month
period, to inspect at reasonable times, GTC's relevant
accounting records to verify the accuracy of Commissions paid
by GTC under the terms of this Agreement.
CUSTOMER SUPPORT
14. CUSTOMER SUPPORT. GTC shall have the option to appoint
OhGolly as its Customer Support Representative to the
Customers (the "Support Option"). Should GTC elect to
exercise the Support Option, OhGolly agrees to respond to all
customer support calls on a timely basis and to provide
support to Customers with regards to the operation and
maintenance of the Customer's Personal Internet Web Page. In
return, GTC shall pay OhGolly $3.00 for each customer support
call made by a Customer to OhGolly (the "Support Fee").
OhGolly shall provide GTC with an invoice of all such
customer support calls weekly by Friday at 11:30 am, Pacific
Standard Time. GTC shall pay OhGolly the Support Fee within
seven (7) days of the date of such invoices. GTC shall have
the right to terminate the Support Option provided that GTC
provide OhGolly with seven (7) days notice of such
termination.
RELATIONSHIP BETWEEN OHGOLLY AND GTC
15. INDEPENDENT CONTRACTOR. OhGolly's relationship to
GTC hereunder shall be that of an independent vendor. Neither
party shall be deemed to be the agent of the other, and
neither shall have the authority to act on behalf of the
other party except in the matter and extent agreed to in
writing. Nothing contained in this Agreement shall be
construed to imply that OhGolly or GTC, or any employee,
agent or other authorized representative of any such party,
is a partner, joint venturer, agent officer or employee of
the other. Neither party hereto shall have any authority to
bind the other in any respect vis a vis any third party, it
being intended that each shall remain an independent
contractor and responsible only for its own actions. OhGolly
and GTC are independent contractors, each responsible for its
own actions, costs and expenses. Neither OhGolly nor GTC
shall have any right to, and shall not, commit the other
party to any agreement, contract, or undertaking or waive or
compromise any of such other party's rights against customers
or other parties.
16. NOT EMPLOYEES. Persons retained by a party hereto as
employees or agents shall not be deemed to be employees or
agents of the other party because of the relationship
established herein. OhGolly, its agents or employees, shall
not be entitled to participate in, or otherwise receive, any
benefit or right as any employee under any GTC benefit or
welfare plan, including but not limited to, employee
insurance, pension, or security plans, as a result of
entering into this agreement.
17. BUSINESS EXPENSES. OhGolly shall be responsible for, and
GTC shall have no liability for, any and all business
expenses incurred by OhGolly in performing its duties
hereunder. Business expenses shall include, but are not
limited to, all operating, travel, meals, and entertainment
expenses. Each of OhGolly and GTC shall bear its own costs
and expenses for marketing, promoting and advertising the
services of GTC unless mutually agreed to in writing
otherwise in advance.
18. TAXES. GTC is not responsible for any taxes, unemployment
insurance, insurance, Social Security, or any local, state,
or federal fees and/or taxes incurred by OhGolly, its agents
or employees. GTC shall pay OhGolly fees and commissions
only according to the provisions of this agreement. OhGolly
is responsible for all state, local, and federal taxes and
fees on all monies paid to OhGolly by GTC. Conversely, GTC
shall be responsible for all applicable state, federal, and
local taxes and fees on all monies paid to GTC by its consumers.
19. REPRESENTATIONS TO THIRD PARTIES. OhGolly agrees that it
will make no representations with respect to its relationship
to GTC except that it is an independent marketing distributor
of GTC telecommunication services.
CONFIDENTIAL INFORMATION AND TRADE SECRETS
20. CONFIDENTIAL INFORMATION. OhGolly hereby acknowledges and
agrees that all information disclosed to OhGolly by GTC,
whether written or oral, relating to GTC's business
activities, its customer names, addresses, all operating
plans, information relating to its existing services, new or
envisioned GTC products or services and the development
thereof, scientific, engineering, or technical information
relating to GTC's interface with long distance carriers,
GTC's marketing or product promotional material, including
brochures, product literature, plan sheets, and any and all
reports generated to customers, or to OhGolly with regard to
customers, unpublished list of names, and all information
relating to GTC's order processing, pricing, cost and
quotations, and any and all information relating to GTC's
relationship with customers and OhGolly, is considered
confidential information, and is proprietary to, and is
considered the invaluable trade secret of GTC (collectively
"Confidential Information"). Any disclosure of any
Confidential Information by OhGolly, its employees, agents or
representatives shall cause immediate, substantial, and
irreparable harm and loss to GTC, and GTC's competitive
position in the marketplace. OhGolly understands that GTC
desires to keep such Confidential Information in the
strictest confidence, and that OhGolly's agreement to do so
is a continuing condition of the receipt and possession of
Confidential Information, and a material provision of this
agreement, and a condition that shall survive the termination
of this Agreement. Consequently, OhGolly shall use
Confidential Information for the sole purpose of performing
its obligations as provided herein. OhGolly agrees:
A. not to disclose Confidential Information to future or
existing competitors;
B. to limit dissemination of Confidential Information to
only those OhGolly employees who have a need to know
such Confidential Information in order perform their
duties as set forth herein;
C. to return Confidential Information, including all
copies and records thereof, to GTC upon receipt of a
request from GTC, or termination of the agreement as
provided herein, whichever occurs first.
MISCELLANEOUS PROVISIONS
21. TERM AND TERMINATION. This Agreement shall be for an
initial term of 12 months. Either GTC or OhGolly may
terminate this Agreement at any time upon thirty (60) days
written notice given by the terminating party.
Notwithstanding the above, if either party defaults in the
performance of any material obligation in this Agreement,
then the non-defaulting party may give written notice to the
defaulting party, and if such default is not cured within ten
(10) days following such notice, the non-defaulting party
shall be entitled to terminate this Agreement.
22. ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding of the parties hereto with
respect to the transactions contemplated hereby, and
supersedes all prior agreements, arrangements and
understandings related to the subject matter hereof. No
understanding, promise, inducement, statement of intention,
representation, warranty, covenant or condition, written or
oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in
this Agreement or the written statements, certificates, or
other documents delivered pursuant hereto or in connection
with the transactions contemplated hereby, and no party
hereto shall be bound by or liable for any alleged
understanding, promise, inducement, statement,
representation, warranty, covenant or condition not so set
forth.
23. NOTICES. All notices provided for in this Agreement shall
be in writing signed by the party giving such notice, and
delivered personally or sent by overnight courier or
messenger or sent by registered or certified mail (air mail
if overseas), return receipt requested, or by telex,
facsimile transmission, telegram or similar means of
communication. Notices shall be deemed to have been received
on the date of personal delivery, telex, facsimile
transmission, telegram or similar means of communication, or
if sent by overnight courier or messenger, shall be deemed to
have been received on the next delivery day after deposit
with the courier or messenger, or if sent by certified or
registered mail, return receipt requested, shall be deemed to
have been received on the third business day after the date
of mailing. Notices shall be sent to the addresses set forth
below:
If to GTC:
GTC Telecom, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx X-0
Xxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx, President
With a copy to:
Law offices of M. Xxxxxxx Xxxxxx, Esq.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attention: M. Xxxxxxx Xxxxxx
If to OhGolly:
XxXxxxx.xxx, Inc.
00000 Xxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxx XX, President
24. CHOICE OF LAW. This Agreement and the rights of the
parties hereunder shall be governed by and construed in
accordance with the laws of the State of California including
all matters of construction, validity, performance, and
enforcement and without giving effect to the principles of
conflict of laws.
25. JURISDICTION. The parties submit to the jurisdiction of the
Courts of the State of California or a Federal Court
empaneled in the State of California for the resolution of
all legal disputes arising under the terms of this Agreement,
including, but not limited to, enforcement of any arbitration
award.
26. VENUE. The parties hereto hereby consent to the venue and
jurisdiction of the Superior Court of the State of
California, Orange County, Central District and waive all
defenses of improper venue or jurisdiction.
27. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original,
but all of which shall together constitute one and the same
instrument.
28. AMENDMENT AND MODIFICATION. Subject to applicable law,
this Agreement may be amended, modified, or supplemented only
by a written agreement signed by all of the parties hereto.
29. TITLES AND CAPTIONS. All section titles or captions
contained in this Agreement are for convenience only and
shall not be deemed part of the context nor affect the
interpretation of this Agreement.
30. PRONOUNS AND PLURALS. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as the identity of the person or
persons may require.
31. AGREEMENT BINDING. This Agreement shall be binding upon
the heirs, executors, administrators, successors and assigns
of the parties hereto.
32. PRESUMPTION. This Agreement or any Section thereof shall
not be construed against any party due to the fact that said
Agreement or any Section thereof was drafted by said party.
33. FURTHER ACTION. The parties hereto shall execute and
deliver all documents, provide all information and take or
forbear from all such action as may be necessary or
appropriate to achieve the purpose of the Agreement.
34. PARTIES IN INTEREST. Nothing herein shall be construed
to be to the benefit of any
third party, nor is it intended that any provision shall be for
the benefit of any third party.
35. SAVINGS CLAUSE. If any provision of this Agreement, or
the application of such provision to any person or
circumstance, shall be held invalid, the remainder of this
Agreement, or the application of such provision to persons or
circumstances other than those as to which it is held
invalid, shall not be affected thereby.
36. INDEMNIFICATION. OhGolly agrees to indemnify and hold
harmless GTC for any errors or omissions by OhGolly, either
intentional or unintentional resulting in a claim by third
parties, arising out of its work in accordance with this
Agreement.
37. SEVERABILITY. Should any provision or any part of this
agreement be held unenforceable by any court or arbitrator,
then the remainder of the agreement shall be given full force
and effect and the invalid provision shall be deemed severed
from this agreement.
GTC AND OHGOLLY ACKNOWLEDGE THAT THEY HAVE READ EACH AND EVERY
PARAGRAPH OF THIS AGREEMENT AND THAT THEY UNDERSTAND THEIR RIGHTS
AND OBLIGATIONS AND THAT THEY HAVE BEEN ADVISED TO CONSULT THEIR
RESPECTIVE ATTORNEYS PRIOR TO EXECUTING THIS AGREEMENT.
GTC Telecom, Inc. OhGolly, Inc.
/s/ Xxxx Xxxxxx /s/ Xxxx Xxxxxxx XX
By: Xxxx Xxxxxx, President By: Xxxx Xxxxxxx XX, President
