EXHIBIT 10.1
INDEPENDENT CONTRACTOR AGREEMENT
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Agreement made this 1st day of August 2001 between Norcom, Inc. herein
referred to as Norcom, A Florida corporation with offices located at 00
X.X. 0xx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 and Riverbend
Telecom, Inc. hereinafter referred to as "Contractor", an individual or
entity doing business as a (individual, sole proprietor, Corporation,
Partnership, etc.) with offices located at 000 Xxxxxxxx Xx., Xxx Xxxxxxx,
XX 00000.
WHEREAS, Norcom is engaged in providing Long Distance Network Services
("LD Services") to businesses throughout the United States and has
entered into multi-year agreements for this purpose and
WHEREAS, Norcom is desirous of engaging other individuals and/or entities
to assist Norcom in marketing the Xxxxxx XX Services and;
WHEREAS, Contractor desires to engage in this activity and to solicit
customers to participate in the LD service provided by Norcom.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged by the parties, it is agreed by and between Norcom
and contractor as follows:
ARTICLE I
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DEFINITIONS
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1.1 "Xxxx Payment Cycle" is the 30 days following presentation of a
Xxxxxx XX Service Invoice to an end user of the service.
1.2 "Commission Payment Date" shall be the end of the third full week of
each calendar month for the previous month billing.
1.3 "Commissions" shall be amounts payable to Contractor for service
under this agreement.
1.4 "Customer" shall consist of Norcom end-users of the LD Services
solicited by Contractor, which have had Subscriber Service
Agreements (SSA's) submitted to and accepted by Norcom.
1.5 "Commissionable Revenue" shall consist of revenues billed by Norcom
for end-users usage of Xxxxxx XX Services.
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ARTICLE II
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REPRESENTATION OF SERVICES
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2.1 DESCRIPTION OF REPRESENTATION
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Norcom hereby grants to Contractor, and Contractor hereby accepts a non
transferable (unless approved in writing by Norcom, which shall not be
unreasonably withheld), non-exclusive right to market the Xxxxxx XX
Services to Customers whereby Norcom shall, pursuant to the terms and
conditions of this Agreement, fully compensate Contractor for sales of
the Xxxxxx XX Services provided by Norcom and accepted by Norcom provided
that the sale of the Xxxxxx XX Service was performed by Contractor.
2.2 TERM/CONTINUATION OF COMMISSIONS
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(a) Except as may otherwise be agreed upon in writing by the parties,
the term of this Agreement shall begin on the date on which it is
executed by Norcom and Contractor and shall continue in force for a
period of two (2) years from the date this Agreement is signed by
both parties. At the expiration of the term, and subject to the
terms and conditions of Section 3.3 of this Agreement, Norcom and
Contractor may enter into another Independent Contractor Agreement
reflecting all revisions institutes since the signing of this
Agreement.
(b) Either party may terminate this Agreement with respect to the
services provided and commissions available if the Federal
Communications Commission, a state Public Utilities Commission, or a
court of competent jurisdiction issues an order or ruling or tariff
change which materially and adversely affects this Agreement, its
profitability to the party or the party's ability to perform its
responsibilities as set forth herein. Such termination shall not
give rise to any claims to damages, provided however, that each
party shall comply with its obligations hereunder up to the date of
termination.
ARTICLE III
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OTHER PROVISIONS
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3.1 REPRESENTATION AND WARRANTIES OF NORCOM
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(a) Norcom represents and warrants that (i) each representation made by
Norcom under this Agreement is accurate, (ii) Norcom has entered
into agreements, which are necessary to
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enable Contractor to perform the services for which they are
appointed, and for which they will receive commissions and (iii)
except as otherwise specifically provided herein, and that Norcom
has the power and authority to enter into this Agreement and to
grant to Contractor the rights conveyed herein.
(b) Norcom warrants that it shall put forth its "best effort" in
processing into the Norcom system, the Norcom SSAs submitted to
Norcom by Contractor. Norcom will accept no liability resulting
from the inability of a Local Exchange Carrier (LEC) or an
underlying carrier to process a service order in a timely fashion.
(c) Norcom warrants that it will not accept a service order from a
prospect that Norcom determines has previously been solicited by
Contractor for the same purposes. Norcom will put forth its "best
effort" in determining the origin of the SSA submitted to Norcom
headquarters so as not to undermine the sale effort of the
Contractor.
3.2 REPRESENTATION AND WARRANTIES OF CONTRACTOR
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(a) Contractor shall seek and obtain the approval of Norcom for all
stationary, forms and advertising materials prepared by Contractor
prior to their use. Such materials shall comply with Norcom's
graphics and other guidelines and their use shall, in the opinion of
Norcom, be in good standing will all regulatory authorities. Norcom
shall respond to such requests for approval of marketing material as
promptly as is practical under the circumstances. Inaction by
Norcom shall constitute disapproval.
(b) Contractor shall quote to the customer only the Xxxxxx XX Service
rates contained in Norcom's current rate schedule(s), unless
Contractor and Norcom otherwise agree in writing prior to the time
of the price quotation by Contractor.
(c) An SSA obtained by contractor is not binding upon Norcom until
accepted by Norcom or unless otherwise agreed to by Norcom.
Contractor shall not represent itself as the employee, agent or
exclusive distributor of Norcom. Contractor shall indemnify and
hold Norcom harmless against any oral or written representation or
warranty regarding the Xxxxxx XX Services by Contractor, its
employees, agents or contractors not authorized by Norcom.
(d) Contractor will obtain original signatures from customers on all SSA
and RESPORG forms submitted to Norcom. Under no circumstances will
Contractor sign or caused to be signed, a customer's signature,
irrespective of any customer's permission to do so.
(e) Contractor may use Norcom's trade name and logo in connection with
its marketing and advertising activities under this agreement
provided Contractor obtains prior written approval from Norcom in
order to assure proper use.
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(f) Contractor shall not claim any right, title or interest in, or to,
Norcom's trade name, logo or any Norcom trademark and shall not use
the same except in connection with the solicitation of orders for
the Xxxxxx XX Service for Norcom's acceptance pursuant to this
Agreement.
(g) Contractor shall in good faith and with diligence maintain and
promote marketing of the Xxxxxx XX Services in accordance with
normal business procedures and practices in the industry, and in
accordance with Norcom's marketing policies. Contractor, at the
discretion of Norcom, will perform such other services incidental to
marketing the Xxxxxx XX Services as from time to time may be
reasonably requested by Norcom, including but not limited to
assistance in the collection of payment of the Xxxxxx XX Services.
(h) Contractor shall promptly transmit to Norcom all SSAs for the Xxxxxx
XX Service, which Contractor has solicited and Norcom has approved
and accepted. Contractor shall be responsible for the accuracy and
completeness of all information requested on the SSA.
(i) Contractor is not on recourse for any unpaid end user invoice unless
Contractor is in violation of Section 3.2b, Section 3.2c, and/or
Section 3.2d at which time Norcom has the option to deduct the total
amount of the unpaid end user invoice from the Contractor
commissions until such time that the unpaid invoice is satisfied.
(j) Contractor shall, solely at the request of Norcom and under its
direction, exercise its best efforts to assist the negotiation of
any change requested by a customer in Norcom's standard terms and
conditions. Norcom will assist Contractor in such negotiation
whenever practical. Any change in Norcom's standard terms and
conditions are subject to written authorization and acceptance by
Norcom.
(k) In the event of any complaint that may arise in connection with an
order for the Xxxxxx XX Service, Contractor shall promptly satisfy
such complaint to the best of its abilities, and in the event
Contractor is unable to resolve this matter, Contractor shall
promptly notify Norcom of such complaint and shall fully cooperate
with Norcom in a prompt resolution of the matter in a manner
approved by Norcom. Contractor shall at all times protect and
defend the good name and integrity of Norcom and its services.
(l) All matters related to marketing materials and advertising to
prospective customers shall be determined by Norcom. Contractor
shall use in its marketing/sales activities under this Agreement
only advertising, promotional and technical materials prepared by
Norcom or prepared by Contractor and approved by Norcom. Contractor
shall not make any representations orally or in writing that the
Xxxxxx XX Services are other than specified in Norcom's written
materials and publications.
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(m) Contractor warrants that it will protect any customer listings
provided by Norcom to Contractor as an aide in its marketing of the
Xxxxxx XX Service. Contractor should share this list with potential
customers upon request and shall put forth its "best effort" to
prevent mass circulation of the customer list or refrain from
knowingly sharing the customer list with a competitor or potential
competitor.
(n) Contractor warrants that Customers that purchase Services sold by
Contractor shall be Customers of Norcom in all respects; and, except
as otherwise expressly provided herein, Contractor shall have no
claim or right in connection with Norcom's provision of Services to
such Customers. Norcom reserves the right to deal directly with
Customers in all matters, including but not limited to those
involving the installation, maintenance, support and removal of the
Services; provided, however, that Contractor shall be deemed to have
originated additional orders for Services obtained directly by
Norcom from any Customer during a period of sixty (60) days from the
date that Contractor presented the initial order with respect to
such Customer.
3.3 TERMINATION
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(a) This Agreement may be immediately terminated by Norcom in the event,
(i) Contractor violates any of the conditions relating to Norcom's
confidential information or (ii) upon termination of this Agreement,
Contractor shall promptly return to Norcom any written matter of any
type belonging to Norcom including but not limited to, material
which may contain duly market confidential information, and all
copies thereof.
(b) This Agreement may also be terminated by Norcom, with thirty (30)
day written notice, if, in the opinion and at the sole discretion of
Norcom, the business relationship with the Contractor is deemed
unsatisfactory for any reason. This termination provision will
neither be unreasonably imposed nor relieve Norcom from the
responsibility to pay commissions on existing customers for as long
as those customers remain on Xxxxxx XX Services. Such termination
shall not give rise to any claims of damages by the Contractor
against Norcom.
3.4 TRADE SECRETS AND CONFIDENTIALITY
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(a) In order for the Contractor to effectively market the Xxxxxx XX
Services to potential customers, it is necessary and desirable for
Norcom to disclose to contractor duly marked confidential and
proprietary information relating to Norcom's business activities,
services and other of technical and proprietary information. While
it is difficult to separate confidential and proprietary information
from that which is not, Contractor will instruct its staff to regard
all information gained as a result of the services hereunder, as
proprietary information.
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(b) Contractor and Norcom agree to hold all proprietary and confidential
information in the strictest confidence and not make any use thereof
other than for the performance of this Agreement.
(c) The parties' confidential and proprietary information shall be
safeguarded by each other to the same extent that they safeguard
their own proprietary and confidential material or data relating to
their own business.
(d) Contractor agrees to disclose proprietary information to its staff
or its employees requiring such information in the performance of
this Agreement and to customers, and shall not disclose such
information to any other party without the expressed written consent
of Norcom.
(e) Contractor and Norcom acknowledge that breach of this Section may
cause irreparable harm, which would not be adequately compensated by
monetary damages. Accordingly, in the event of such breach or
threatened breach, Contractor and Norcom agree that either party
shall be entitled to equitable relief, including temporary
restraining orders or preliminary or permanent injunctions. In
addition to any legal remedies to which it may be entitled should
either party materially breach this Agreement.
(f) Provisions of this section shall survive the termination of this
Agreement.
3.5 NOTICES
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Unless subsequently changed by a party, all written correspondence
required by this Agreement must be addressed to the party at the
following addresses:
Norcom, Inc.
00 X.X. 0xx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
(000) 000-0000
Contractor
Name Riverbend Telecom, Inc.
Address 000 Xxxxxxxx Xx.
Xxxx Xxx Xxxxxxx Xxxxx LA Zip Code 70116
Voice Telephone Number (000) 000-0000 Fax Telephone Number (000) 000-0000
(call (000) 000-0000 before faxing)
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3.6 SEVERABILITY
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In the event that any section, paragraph or portion of this Agreement is
deemed, by any court having lawful jurisdiction of the subject matter of
this Agreement, to be void, voidable or invalid for any reason, this
Agreement otherwise will be deemed to be valid and enforceable as if the
void, voidable or invalid section paragraph or portion of this Agreement
had not been a part of this Agreement in the first instance.
3.7 AUTHORITY TO BIND
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Norcom warrants that it has the right to grant the right to Contractor to
market the Xxxxxx XX Services. Each person executing this Agreement on
behalf of another person or entity hereby warrants he or she has full
legal authority to execute this Agreement for an on behalf of that person
or entity so as to bind that party.
3.8 SETTLEMENT OF DISPUTES
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In the event of any controversy or claim arising from or relating to this
Agreement, or the making, performance or interpretations of it the
parties initially, in good faith, will attempt to resolve the dispute
among themselves. If the parties are unable to resolve their dispute
privately, the matter is to be settled in accordance with the laws of the
State of Florida.
3.9 MISCELLANEOUS
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(a) Neither party to this agreement is an agent, partner or employee of
the other, each party being an Independent Contractor of the other.
Neither party has the right to bind the other to any agreement to a
third party, or to incur any obligation or liability on behalf of
the other party without the prior written approval of both parties.
(b) Nothing in this agreement shall be construed to make the parties
hereto partners, joint venturers, representatives or agents of each
other, nor shall any party so hold itself out as such.
(c) No employee, agent or contractor of Contractor has the authority to
bind Norcom to any
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representation or agreement orally or in writing, with a third
party.
(d) Contractor shall not assign any or all of Contractor's rights or
obligations under this Agreement including but not limited to the
right of Contractor to receive commissions without the prior written
consent of Norcom.
(e) The parties shall not be liable or deemed to be in default for any
delay or failure to perform its obligations hereunder if such
failure results directly or indirectly for any cause beyond its
reasonable control.
(f) Norcom shall in no event be liable for loss of profit, goodwill or
any other special, or consequential damages suffered by Contractor
or others, whether or not the possibility of such damage was
disclosed to Norcom or could have been reasonably foreseen by
Norcom.
(g) Failure by Norcom or Contractor to comply with any term or condition
under this Agreement shall entitle the other party to give the party
in default written notice requiring it to make good such default.
(h) If the party in default has not commenced action to cure such
default in 30 days after receipt of notice and cured such default
within 90 days of such notice, the notifying party shall be
entitled, in addition to any other rights it may have under this
Agreement or otherwise under the law, to terminate this Agreement by
giving notice to take effect immediately.
(i) The right of either party to terminate this Agreement hereunder
shall not be effected in any way by its waiver of, or failure to
take, action with respect to any previous default.
(j) Any out-of-pocket expense incurred by Contractor in the performance
of this Agreement shall be paid solely by Contractor.
(k) In the event Norcom, Inc. as a company is purchase by another
entity, Norcom, Inc. agrees to pay contractor a lump sum equal to
one (1) month of total customer billed long distance usage up to
$100,000; two (2) months of total customer billed long distance
usage up to $200,000; and three (3) months of total customer billed
long distance usage over $300,000. Contractor will have the option
of taking the buyout, or receiving commissions from the new entity.
In selecting the buyout, contractor relinquishes all interest and
equity in their customer base.
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3.10 COUNTERPARTS
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(a) This Agreement may be signed in any number of counterparts with the
same effect as if the signatures were upon the same instrument.
(b) The Undersigned agrees to represent Norcom in the selling and
marketing of Xxxxxx XX Services, under the terms and conditions of
this contract.
(c) VOID FOR THE SOLE PURPOSE OF THIS AGREEMENT.
(d) If Contractor breaches the above, Norcom shall, at its sole
discretion, have the right to terminate this Agreement. Termination
of this Agreement shall not relieve Norcom of its obligation to pay
Contractor residual commission on submitted SSAs for as long as
Contractor's end users continue to use and pay for Norcom services.
ARTICLE IV
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COMMISSION SCHEDULE
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4.1 TERMS AND CONDITIONS OF COMMISSION PAYMENT
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(a) As compensation for services rendered hereunder, Norcom shall pay to
Contractor the commissions for revenues billed by Norcom to
Contractor's end users (Paid on Billing). Norcom records shall be
deemed correct for the purposes of calculating the commissionable
revenues and the corresponding commissions. Commissionable revenues
will consist of qualified interstate, intrastate, international, and
calling card volume less non-commissionable calls (directory
assistance, etc.), surcharges and taxes generated by the Contractor.
While Norcom assumes the responsibility for bad debt, Contractor
will be charged back any commissions previously paid on billing for
unpaid end-users invoices.
(b) Qualified interstate and intrastate volume, collectively known as
Domestic volume, consists of calls placed inside the territorial
bounds of the United States (including Puerto Rico and the U.S.
Virgin Islands), calls placed on the Xxxxxx XX Network and calls
placed by the customers of Norcom with whom the Contractor is the
representative.
(c) Qualified international volume consists of calls placed outside the
territorial bounds of the United States and during the standard
and/or discount economy rate period and calls placed by customers of
Norcom with whom the Contractor is the representative.
(d) Any per call surcharges, one-time fees or monthly recurring fees do
not qualify for
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commissions unless approved by Norcom.
(e) The rate and commission exhibit (4 pages) attached to this contract
is to be considered part of this Agreement and each page must be
initialed by contractor.
Riverbend Telecom, Inc.
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Company/Individual Name (print)
/s/ Xxxx Xxxxxxxx /s/ Xxxx Xxxxxxx
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Authorized Signature Norcom Authorized Signature
President 8/01/01 President 8/17/01
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Title Date Title Date
2056
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Assigned Dealer Number
Pending
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Federal ID or Social Security Number
CERTIFICATION
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Under penalties of perjury, I certify that:
1. The number shown above is my correct taxpayer identification
number (or I am waiting for a number to be issued to me), and
2. I am not subject to backup withholding because (a) I am exempt
from backup withholding, or (b) I have been notified by the
Internal Revenue Service that I am subject to backup
withholding as a result of a failure to report all interest or
dividends, or (c) the IRS has notified me that I am no longer
subject to backup withholding.
Signature ________________________ Date_________________
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