SALES AFFILIATE AGREEMENT LEGAL TERMS AND CONDITIONS
This Sales Referral Partner Agreement (the “Agreement”) is entered into effective as of the date of execution above (the “Effective Date”) by and between FRONT ROW CONSULTANTS, LLC, a Texas limited liability company, d/b/a “Client Chat Live” with its principal place of business located at 8834 N. Capital Texas Hwy. Suite 304, Austin, Texas 78759 (the “Company”) and the Referral Partner. The Company and the Referral Partner may be referred to hereinafter individually as a “Party” or collectively as the “Parties” to this Agreement, as the context may require.
In consideration of the mutual promises and covenants contained herein, the Parties agree as follows:
ARTICLE I: DEFINITIONS
1.1 “Products”: The products provided by Company which are sold to Customers. Products also include the services provided by the Company.
1.3 “Customers”: Purchasers and potential purchasers of the Company’s Products whose places of business are located in the Territory.
1.4 “Transactions”: Sales of the Company’s Products within the Territory.
1.5 “Term”: The duration of this Agreement, as specified in Article 3, as extended or shortened by the provisions of that Article.
1.6 “Company Proprietary Marks”: The tradename, trademarks, service marks, logos or similar proprietary marks and designations of the Company and its affiliates.
1.7 “Proprietary Data”: The trade secrets, manuals and other technical service and marketing knowledge and other proprietary information used by the Company to maintain an advantage over competitor and which the Company does not want disclosed.
1.8 “U.S.”: The United States of America
ARTICLE 2: APPOINTMENT AND RELATIONSHIP
2.1 Relationship Created
The Company and the Referral Partner are independent contractors as to one another. The Referral Partner has no authority expressed or implied to bind or represent the Company in any capacity other than those expressly provided for herein and nothing in this Agreement shall be deemed to create an agency, franchise, joint venture, partnership or employer-and-employee relationship between the Parties. The acts and omissions of the Referral Partner shall not create any liability for the Company. The Referral Partner has no authority and cannot accept “service of process” in any legal action brought against the Company. The authority of the Referral Partner hereunder is limited to the solicitation of orders to purchase the Company’s Products. Subject to the provisions of this Agreement, the Referral Partner shall conduct its business at its own initiative, responsibility and expense.
- The Company shall be under no obligation to the Referral Partner to continue its business or to continue to sell or supply any of the Products. The Company shall have the right in its sole discretion from time to time to discontinue or modify its Products, and may add or subtract Products from the Referral Partner’s product line representation. The Company may amend this agreement accordingly by giving thirty (30) days prior written notice to the Referral Partner, except that amendments adding Products shall be effective upon receipt of notice. So long as prior notice, reasonable under the circumstances, is given to the Referral Partner, the Company reserves the right to sell the Products in the Territory and the further right to engage one or more third parties to assist in such sales.
Upon receiving notice of amendment of this agreement by the Company, Referral Partner may terminate this agreement if Referral Partner does not agree with such amendment by providing notice of termination prior to the effective date of the amendment. In the event of termination under this section, such termination shall be effective on the date that the relevant amendment would have become effective.
- Any such amendment shall not alter the Referral Partner’s right to receive commissions on orders accepted prior to the effective date of the amendment.
2.3 Ownership and Control
The Referral Partner agrees that this agreement is not transferable or assignable, that the rights and duties contained herein are granted only to the Referral Partner, and, if the Referral Partner is an entity, the Referral Partner agrees that it shall notify the Company in writing in advance of any proposed material change in its ownership or management. The Company reserves the right to enter into an agreement or to decline to so do with any successor in interest to the Referral Partner. The Referral Partner, further, shall not, without the written consent of the Company, utilize any firm or person other than a principal, officer, or regular employee of the Referral Partner in connection with the sales or promotional efforts related to any transaction arising under this Agreement.
2.4 Company Trademarks, Tradenames, etc.
- The Referral Partner shall not use any Company Proprietary Marks in any advertising or promotional materials without the prior written consent of the Company and such usage shall be in compliance with any Company directives. The Referral Partner shall not use any Company Proprietary Mark or any confusingly similar words or symbols as part of its name or incorporate the same in its letterhead.
- The Referral Partner agrees that all right, title and interest in and to the Company Proprietary Marks shall at all times be and remain in the Company and the Referral Partner acquires no interest therein and shall at all times recognize and protect the Company’s right of ownership of Company Proprietary Marks and shall not in any way derogate the Company’s sole rights to such Marks.
- Any registration of the Company Proprietary Marks within the Territory shall be obtained by the Company. The Referral Partner shall promptly notify the Company of any infringement or illegal uses of Company Proprietary Marks which may come to the Referral Partner’s attention and, at the Company’s request, shall assist the Company in obtaining protection of such items in the Territory. The Referral Partner acknowledges and agrees that only the Company shall have the right to bring suit in connection with any such infringement or to otherwise enforce its rights in connection with the Company Proprietary Rights.
- The Referral Partner shall only use the Company Proprietary Marks in connection with the marketing and sale of the Products and shall not commingle its own or any other Company’s marks in connection therewith. The Referral Partner shall not publish or cause to be published any statement or encourage or approve any advertising practice which might mislead or deceive any parties or might be detrimental to the good name, Company Proprietary Marks, good will or reputation of the Company or its Products. The Referral Partner shall withdraw any statement made and discontinue any advertising or practice deemed by the Company to have a detrimental effect.
ARTICLE 3: TERM
3.1 The Term
The Term of this Agreement shall be from the Effective Date and shall continue until either party gives 10 days written notice or earlier pursuant to ARTICLE 7.0 TERMINATION.
4.2 Specific Limitations on Referral Partner in Fulfilling Duties
- The Referral Partner shall not have the authority to accept any order or to assume or create any obligation, express or implied, on behalf of the Company, nor to modify or limit the terms and conditions in a quotation by the Company, nor make any allowances or adjustments in accounts, nor authorize the return of any Products without first obtaining the Company’s prior written authorization.
- The Referral Partner shall not give or refer to any warranty, guarantee or representation other than those contained in the Company’s Terms and Conditions of Sale or other documents executed by the Company.
ARTICLE 5: DUTIES OF THE COMPANY
5.1 General Duties of the Company
The Company shall fulfill the responsibilities of sections 5.1.A. through 5.1.G. below.
- The Company shall provide the Referral Partner with price lists for standard items and updates thereof as appropriate.
- The Company shall provide marketing and technical assistance to the Referral Partner as deemed appropriate by the Company.
- The Company shall furnish to the Referral Partner, without charge, except as may otherwise be specifically agreed upon in writing between the parties, reasonable quantities of English language promotional materials describing the Company’s Products. The Company shall pay shipping charges for such literature. Such material remains the property of the Company until it is passed on to Customers or potential Customers, or is requested by the Company to be returned to the Company.
- The Company shall provide the Referral Partner with copies of all purchase orders and inquiries received and accepted from Customers in the Territory.
ARTICLE 6: COMMISSIONS
6.1 Payment of Commissions
The Company shall pay the Referral Partner, as the sole and exclusive compensation for all services performed in the Territory, a commission on the income actually received by the Company from sales of the Products to Customers in the Territory during the Term of this Agreement and any Compensation Period thereafter. No additional compensation, bonus or other payment will be made by the Company in connection with any services provided by the Referral Partner unless agreed upon in writing in advance by the Company. Commissions shall be paid at the rates set forth in Exhibit A, attached hereto.
6.2 Determination of Commission
- Commissions shall be computed by the Company on the income actually received by the Company from sales, after any credits or adjustments given to the Customer.
- Should the Customer require a credit or refund in any form, a proportionate amount of such credit or refund shall be charged against Commissions thereafter payable by the Company or, in the event that no Commissions are payable within one hundred twenty (120) days thereafter, the Referral Partner shall reimburse the Company for such proportionate amount.
6.3 When Earned: Payment Applicable Taxes
- Unless otherwise provided in writing in Exhibit C, Commissions shall be earned and paid as follows:
- Commission is earned by the Referral Partner when Income is received. Income is defined as payments on each applicable invoice are made to the Company by the Customer. Late payment fees, interest, and other collection-related fees are not considered Income.
- The amount of the Commission earned is determined by the amount of Income, multiplied by the applicable Commission Rate.
- The Commission is payable to the Referral Partner the first week of the month following the month in which payment was received.
- Commissions shall be paid in U.S. Dollars or in such other currency as may be required by applicable Territory regulations.
- Any taxes, U.S. or foreign, attributable to commissions paid to the Referral Partner shall be the responsibility of the Referral Partner.
ARTICLE 7: TERMINATION
7.1 Termination for Cause.
- By either party: Either Party shall have the right to terminate this Agreement upon giving written notice in accordance with Section 14.6 to the other in the event of the other party’s (I) voluntary or involuntary bankruptcy or insolvency; (ii) an assignment against the other party for the benefit of creditors or (iii) if a petition shall have been filed against the other party under a bankruptcy or other law for relief of debtors, the effect of which is to cause substantial interruption to the other party’s business.
- By the Company: The Company shall have the right to terminate this Agreement upon giving written notice in accordance with Section 14.7 to the Referral Partner if:
- There is a material change in the form, control, management or key personnel of the Referral Partner’s organization (if any), and such change is unacceptable to the Company.
- There is a significant reduction of activity by key personnel in the Referral Partner’s organization (if any) on behalf of the Company.
- The Referral Partner attempts to assign, convey or otherwise transfer in whole or in part this Agreement or any rights or obligations hereunder to any third party without the Company’s advance written consent.
- The Referral Partner fails to perform its obligations hereunder to the satisfaction of the Company. In this regard, the Company’s determination shall be binding upon both Parties and may be based upon one or more of the following factors: significant reduction of sales, failure by the Referral Partner to obtain new business where the Company determines that such new business was reasonably attainable, diminishing customer satisfaction as evidenced by significant complaints regarding the Referral Partner’s performance, or the general desire of customers to do business with competitors of the Company as evidenced by loss of business.
- The Company receives a good faith legal opinion that termination is necessary to avoid possible civil, criminal or tax liabilities under United States or foreign law.
- The Referral Partner breaches any other term of this Agreement and fails to remedy such breach within thirty (30) days of receipt of notice from the Company that such brief has occurred.
7.2 Termination for Convenience
Either Party may terminate this Agreement without cause ninety (10) days after giving written notice in accordance with Section 13.6. Such notice shall provide the reason(s) for the termination to the other Party, subject to the conditions of Section 7.3.
7.3 Effect of Expiration or Termination
Upon any expiration or earlier termination of this Agreement as provided in this
- The Referral Partner shall immediately cease all use of the Company’s Proprietary Data.
- The Referral Partner shall promptly provide the Company with lists of all current and prospective Customers, as well as current contracts for the sale of Products.
- The Referral Partner shall provide the Company with all information and assistance reasonably required for the Company to properly support and/or service any
Products previously sold to Customers.
7.4 Notice of Termination
Termination of this Agreement for any reason other than the expiration of the Term hereof shall be effectuated by notice sent by mail and/or facsimile to the other Party at its address set forth below and thereupon confirmed by registered mail. The notice shall set forth the effective date of termination, and the reason(s) therefore. The effective date of termination shall be deemed to be the date the notice is first sent, unless the termination is for cause in which case it shall be effective as of the date the event occurred giving rise to the right to terminate.
7.5 No Liability For Termination Or Expiration
The Parties acknowledge that the right to terminate and the effects of termination or expiration of this agreement may result in monetary or other losses or damages to the parties. Nevertheless, the parties acknowledge that the inclusion of the right to terminate is an inducement to enter into the Agreement and is an essential part of the fair and adequate consideration given for the promises contained herein. The parties agree that neither party shall be liable to the other or to any third party by reason of expiration or termination for any compensation, reimbursement, commission or for any direct, indirect, special, punitive, incidental, consequential or other damages in any form, including but not limited to lost profits, anticipated sales, employee termination payments, good will, or for expenditures, investments, or otherwise except as expressly provided in this Agreement.
The provisions on Confidentiality and Proprietary Data shall survive expiration or termination of this Agreement.
7.7 No Waiver of Breach
Any election to terminate this Agreement by either Party pursuant to this Article 7 shall not limit either Party’s right to seek appropriate relief relating to the breach or event giving rise to such termination pursuant to ARTICLE 13 below.
ARTICLE 8: INDEMNIFICATION BY REFERRAL PARTNER
As an independent contractor, the Referral Partner acknowledges that its operations under this Agreement are at its own risk. The Referral Partner accepts exclusive liability for, and, shall indemnify, defend and hold the Company harmless from any and all claims, damages, liabilities, costs and expenses (including attorneys’ fees), arising from, or related to the Referral Partner’s actions or omissions under this Agreement including the following:
- The making of any oral or written warranty, guarantee or representation offered by the Referral Partner on behalf of the Company which was not expressly authorized in writing, in advance, by an authorized officer of the Company;
- Any oral or written warranty, guarantee or representation offered by the
Referral Partner on its own behalf or on behalf of a third Party;
- Loss, or damage to real or personal property, or injury to, or death of any person, caused by the Referral Partner, its officers, employees or agents.
ARTICLE 9: LIMITATION OF LIABILITY
IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE REFERRAL PARTNER FOR ANY SPECIAL, PUNITIVE INCIDENTAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, FOR DAMAGES FOR LOSS OF PROFITS OR REVENUE, OR LOSS OF USE OF PRODUCTS OR DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, HOWEVER ARISING IN CONNECTION WITH THIS AGREEMENT. NOTWITHSTANDING PRIOR NOTICE TO COMPANY OF THE POSSIBILITY OF SUCH DAMAGES, IN NO EVENT SHALL THE COMPANY’S LIABILITY FOR DAMAGES HEREUNDER FOR ANY CAUSE WHATSOEVER EXCEED THE AMOUNTS RECEIVED BY THE COMPANY WITH RESPECT TO THE PARTICULAR TRANSACTION GIVING RISE TO THE LIABILITY
ARTICLE 10: FORCE MAJEURE
Neither Party shall be liable to the other or to any third party for failure or delay in performance of an obligation under this Agreement resulting from any cause or occurrence beyond its reasonable control, including war whether declared or undeclared, revolution, riot, piracy, sabotage, blockade or embargo; explosions, fire, earthquake, flood or any other casualty or accident of nature; strikes, lock-outs or other labor disturbances of any kind; governmental act, law, regulation, order or other requirement whether military or civil, lawful or unlawful; provided that the Party claiming relief hereunder shall give assistance for more than ninety (90) days, either party shall be entitled to terminate this Agreement with notice and without liability pursuant to Section 7.5.
ARTICLE 11: CONFIDENTIALITY
- The Referral Partner acknowledges that it has access to Company Proprietary Data pertaining to new orders, sales, customer relations, customer lists, marketing or other business plans or projections, pricing or information and other financial information. The Referral Partner agrees that during the Term and for a period of
five (5) years thereafter, it shall hold all such information in the strictest confidence and shall not disclose or otherwise make known to any third Party, including parent, subsidiary or affiliated company of the Referral Partner. If the Referral Partner is an organization, the Referral Partner shall restrict the use of such information to those employees who have a need to know. In such case, the Referral Partner warrants that any of its employees who receive such information shall be required to sign a statement acknowledging this obligation.
- Proprietary Data shall not include information which: (1) is or becomes part of the public domain through no act or omission of the Referral Partner; (2) was in the Referral Partner’s lawful possession prior to the disclosure and had not been obtained by the Referral Partner from the Company; (3) is lawfully disclosed to Referral Partner by a third party without restriction on disclosure; (4) is independently developed by the Referral Partner without reference to Company Proprietary Data.
ARTICLE 12: COMPLIANCE WITH LAW
In its performance of this Agreement, the Referral Partner shall not violate or cause the Company or any third party to violate any law, rule, regulation or administrative decree of the U.S. government, the government of the Territory or any other pertinent jurisdiction, and shall in every instance act consistently with principles of good conduct and business ethics. The Referral Partner shall promptly notify the Company in writing of any violation or suspected violation of this paragraph and shall indemnify, defend and hold the Company harmless from any claim, liability, cost or expense arising from any alleged violation including attorney’s fees.
ARTICLE 13: GENERAL PROVISIONS
Any provision of this Agreement held to be illegal or unenforceable shall be amended to conform to applicable law or if it cannot be so amended without materially altering the intention of the Parties, it shall be stricken and the remainder of this Agreement shall continue in full force and effect. Provisions of Agreement and to its performance and should a court or arbitration tribunal, for any reason, disallow or strike down any provisions of ARTICLE 7 the entire Agreement shall be void.
The Referral Partner represents to the Company that it has the authority to enter into this Agreement and that entry into this Agreement with the Company does not constitute a breach of any contract, covenant, or other agreement that the Referral Partner has with any other person or entity.
13.3 No Implied Waiver
The waiver of a breach or default of a covenant, condition or provision of this Agreement shall not be construed as a waiver of any subsequent breach of any covenant, condition or provision of this Agreement.
The Referral Partner may not assign, convey, delegate or otherwise transfer this Agreement or any rights or obligations hereunder without the prior written consent of the Company.
The headings in this Agreement are for identification purposes only and shall not be used for the interpretation of this Agreement.
All notices between the Parties shall be sent by tested facsimile and then confirmed by registered mail, postage prepaid, return receipt requested, to the addresses set forth below. Such notice shall be deemed to have been given on the date first sent in accordance with this procedure.
Front Row Consultants, LLC
8834 N. Capital Texas Hwy
Austin, Texas 78759
TO REFERRAL PARTNER:
The Address as Filled out on this agreement.
Either Party may change its address for notice at any time by providing written notice to the other using the procedure in this section.
13.7 Duplicate Originals
This Agreement shall be executed by two originals but each shall be sufficient without the other as evidence of the Agreement between the Parties.
13.8 Governing Law; Venue
This Agreement shall be governed by and construed under the substantive law of the State of Texas, and venue for all disputes arising under this Agreement shall be in the County Courts at Law or District Courts of Williamson County, Texas.
13.9 Entire Agreement
This Agreement, together with all attached Exhibits, which are incorporated herein by this reference, is a new agreement and constitutes the sole and exclusive understanding between the Parties regarding the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, proposals, and representations between the Parties or their agents, whether oral or written. Except as may be otherwise expressly provided herein, no supplement, modification or other amendment of this Agreement shall be binding unless set forth in writing and executed by an authorized Referral Partner of each Party.
13.10 Effective Date
This Agreement shall be effective as of the date of the Company’s signature hereto above (the “Effective Date”).