VAULT AMERICA AGENT AGREEMENT
This Representation Agreement ("Agreement") is entered into by and between Network Access Corporation dba Vault America including its affiliates (hereinafter referred to as "Vault America"), and Agent Representative (hereinafter referred to as "Representative"). This Agreement will be effective only after it has been accepted by both parties, and the date it is accepted by the authorized Vault America executive will be the "Effective Date".
BACKGROUND:
1. Vault America is engaged primarily in providing online data backup and email archiving cloud storage services to customers.
2. Vault America desires to expand its customer base to include a greater number of customers through its representation program.
3. Vault America has agreed to permit Representative to market Vault America’s product and services under the terms and conditions set forth herein to permit customers that are not current customers of Vault America.
THE AGREEMENT:
The parties agree as follows:
1. Representative Responsibilities:
1.1 Representative may use employees to perform certain duties under this Agreement, provided that Representative must first obtain Vault America’s written consent. Vault America may withhold such consent or revoke any in its sole discretion. Representative will remain solely responsible for all actions or omissions.
1.2 Representative will, at its own cost, meet and continue to meet any required training criteria for the representation program.
1.3 Representative will obtain the authorized signature or other appropriate authorization of the Prospect on Vault America’s then-current standard service agreement. All standard service agreements and service order forms are subject to credit approval and acceptance by Vault America. Vault America reserves the right to cancel or reject any request for services and any service agreement or service order form for any reason without liability to Representative.
2. Representative’s Standard of Conduct:
In performing this Agreement, Representative will observe the highest standard of integrity and fair dealing and Representative will do nothing to discredit, dishonor, reflect adversely upon or in any manner injure the reputation or business of Vault America.
3. Appointment
3.1 Vault America appoints Representative on a non-exclusive basis as its authorized sales representative to obtain orders for services from Prospects located within the continental United States and the District of Columbia. Representative will only use the materials approved in advance in writing by Vault America or supplied by Vault America. Upon notice to Representative, Vault America may limit the prospects that Representative may solicit.
3.2 Representative’s appointment is non-exclusive and Vault America reserves the right at any time to offer to any third party (including other representatives and Prospects) the same or different arrangement. In addition, Vault America reserves the right at any time to offer to any party (including prospects) the same or different services through its employees or other persons who may be designated or appointed as authorized representatives. Representative may not at any time form a direct relationship with Vault America’s underlying service(s) and or software provider(s).
3.3 Representative agrees that after the delivery of an account or customer to Vault America, and provided that Vault America continues to pay commissions owed, if any, to Representative as provided in Exhibit A and or B, if applicable, that Representative during the term of this agreement and for a period of (1) year following the termination of this agreement shall not in any manner attempt to solicit those same accounts or customers to utilize remote access, remote data backup, collocation, and internet services of any other provider. Representative will not solicit customers deemed not creditworthy by Vault America or any customers not in regions where Vault America presently provides services or Vault America elects not to provide services. Representative will not convey to Prospect(s) that the services of Vault America are available only from Representative or are available only with another product(s) or service(s) provided by Representative.
4. Representative is an Independent Contractor:
4.1 Representative does not have the authority to bind Vault America, by contract or otherwise, or make representations as to the policies and procedures of Vault America. Representative’s employees or agents shall not be deemed to be Vault America’s agents, and Representative assumes all responsibility for the supervision, control, acts and omissions of its employees and agents. Neither Representative nor anyone employed by Representative or working with Representative as an agent or in any other capacity will be considered an agent of Vault America for any purpose, including but not limited to Workers’ Compensation coverage, the same being expressly waived and excluded by the parties hereto.
4.2 All of the expenses incurred by Representative in connection with Representative’s efforts to obtain orders for Vault America services will be entirely Representative’s responsibility. Vault America will not in any way be responsible or liable for such expenses.
4.3 Representative will be responsible for payment of all taxes and other fees due as a result of Vault America’s payment of Commissions (defined below).
5. Compensation
5.1 In exchange for Representative’s performance under this Agreement, Vault America will compensate Representative by paying commissions ("Commissions") for providing qualified sales to Vault America in accordance with Exhibit A.
5.2 No commission checks under $100 shall be mailed, but shall be accrued until Representative is due at least $100 of commission.
Terms and Duration of Agreement:
6.1 The term of this Agreement shall be effective for 12 months commencing on the Effective Date. This Agreement will be automatically renewed in consecutive additional periods of one year, unless terminated earlier in accordance with Section 6.2 of this agreement.
6.2 Vault America may terminate this Agreement effective immediately in the event of any of the following occurrences:
6.2.1 Representative’s insolvency, bankruptcy, receivership or dissolution;
6.2.2 Representative’s actual or attempted assignment of this Agreement or any duties under this Agreement to another party without Vault America’s prior written consent;
6.2.3 Representative’s material breach of any provision of this Agreement;
6.2.4 Representative’s making of misrepresentation’s about Vault America;
6.2.5 Representative’s attempted or actual sale of unauthorized services or unauthorized rates;
6.2.6 Conduct by Representative, or any of its employees or agents or any other person, firm or entity acting on its behalf which subjects Vault America to any fine, penalty, complaints, inquiry or investigation regarding customer slamming, cramming, or any other unfair, illegal or unethical business practice;
6.2.7 Termination of any other agreement between the parties by Vault America under a provision similar to one set forth in this Section 6.2;
6.2.8 Representative’s attempt to contract directly with Vault America’ underlying service and or software provider(s).
6.2.9 Representative fails to submit one new customer order per year.
6.2.10 Any regulatory, judicial or legislative body having jurisdiction over the services provided by Vault America issues any order, policy, procedure, ruling, action or mandate that effects in any way the manner, method or terms under which Vault America provides the services; or
6.2.11 Representative’s death or incapacity, if Representative is an individual and not a company.
In the event of a termination by Vault America under this Section 6.2, Vault America’s obligation to pay Commissions will cease immediately.
7. Submission of Orders:
7.1 Representative will submit orders from Prospects according to the procedures that Vault America provides to Representative and on those order forms that Vault America provides.
7.2 Vault America shall have no obligation to pay Commissions on any order that is not made or submitted in accordance with the terms of this Agreement, regardless of whether Vault America initially accepted such order.
8. Pricing:
Vault America reserves the right to prescribe the pricing and the terms and conditions under which its services are offered and provided. Vault America also reserves the right to change it prices and terms and conditions and to discontinue or modify any service offering with no advance notice to Representative or any Prospect ordering service.
9. Advertising Review and Trademark Use:
9.1 Representative may not use any service mark, trademark or logo design of Vault America except as set forth in this Section. Representative, under no circumstances, will advertise Vault America products or services without Vault America’ prior written approval. All advertising materials utilized by Representative, including but not limited to press releases or publications of Representative, or a third party on behalf of or with the authorization of Representative, are subject to prior written approval. Failure to obtain prior written Vault America approval for all advertising materials will be deemed a material breach of the Agreement, subject to immediate termination as set forth in Section 6.2.3.
9.1.1 Representative may use service marks, trademarks, trade names and logo designs of Vault America only in the marketing materials, advertising and promotional literature (collectively, the "Materials") used in its solicitation of Prospects for the sale of Vault America services, provided that any usage of any Vault America mark or trade name in such materials and the advertising claims associated therewith, in Vault America instance, has been approved in writing in advance by Vault America.
9.1.2 Representative acknowledges and agrees that: (i) the marks are owned by Vault America; (ii) it will do nothing inconsistent with such ownership; (iii) all use of the Vault America marks by it will inure to the benefit of and be on behalf of Vault America; (iv) all goodwill resulting from use of such marks or trademarks vest solely in Vault America; (v) that nothing in this grant will give it any right, title or interest in Vault America marks other than the right to use the marks in accordance herewith; (vi) it will not attack Vault America’ s title to the marks or the validity of this grant and Representative will neither have nor make any claim to such service marks or trademarks; and (vii) further agrees to use Vault America marks only in the form and manner prescribed from time to time by Vault America and not to use any other trademark or service mark in combination with any of Vault America’s marks without the prior written approval of Vault America.
9.1.3 This grant of a limited, non-exclusive authorization may not be assigned to any other entity or person without the prior written approval of Vault America.
9.1.4 Representative agrees, at its own expense, to defend, indemnify and hold Vault America harmless from and against any and all claims, suits, actions, proceedings, judgments, damages, liabilities, costs and expenses, including attorneys’ fees, arising whether from use of Vault America marks by Representative or any third party authorized by Representative or Representative advertising claims made in connection therewith, other than a claim based on an assertion by a third party either that Vault America does not own the marks, does not have the right to grant the authorization provided herein, or that the substance of an advertising claim approved by Vault America is materially false or misleading.
9.1.5 Upon termination of this Agreement, any permission or right to use the marks granted hereunder will cease to exist and Representative will immediately cease any use of such marks and immediately cease referring to itself as an authorized representative.
9.2 Representative must submit prior use to Vault America all advertising and marketing materials, including but not limited to business letterhead, press releases, flyers, brochures and electronic media content utilizing Vault America’s name.
10. Limitation of Liability:
10.1 THE LIABILITY OF VAULT AMERICA TO REPRESENTATIVE UNDER THIS AGREEMENT IS LIMITED TO THE OBLIGATION TO PAY COMMISSIONS AS DESCRIBED HEREIN.
10.2 VAULT AMERICA WILL NOT BE LIABLE, IN ANY EVENT, FOR CONSEQUNTIAL, INCIDENTIAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, WHETHER OR NOT VAULT AMERICA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, OR PUNITIVE DAMAGES, BY REASON OF ANY ACT OR OMISSION IN ITS PERFORMANCE UNDER THIS AGREEMENT.
10.3 VAULT AMERICA WILL HAVE NO LIABILITY TO REPRESENTATIVE FOR COMMISSIONS THAT MIGHT HAVE BEEN EARNED UNDER THIS AGREEMENT BUT FOR VAULT AMERICA’S DELAY IN ACCEPTING OR PROCESSING ANY ORDER, REFUSAL OF ANY ORDER OR THE INABILITY OR FAILURE OF VAULT AMERICA TO PROVIDE SERVICES TO ANY PERSON OR ENTITY OR IN THE EVENT OF DISCONTINUATION OR MODIFICATION OF THE SERVICES.
11. Indemnification:
Each party agrees to indemnify and hold harmless the other, its officers, directors, shareholders, employees, agents, successors, assigns and independent contractors from and against all losses, claims, damages, liabilities or expenses of any description, including but not limited to reasonable attorneys’ fees and costs and allocable costs of in house legal counsel, arising out of the indemnifying party’ acts or omissions, or those of its officers, directors, partners, employees, agents or other representatives, if any, including but not limited to the misrepresentation of prices or services or the payment or nonpayment of any sums to Prospects or other third parties. The indemnifying party must also allow the other party to participate in the defense. Each party will immediately notify the other of the commencement or threatened commencement of any action, suit or proceeding, and of the issuance or threatened issuance of any order, writ, injunction, award or decree of any court, agency or other governmental instrumentality involving activities under this Agreement or that may affect such indemnification.
12. Non-solicitation:
Representative agrees that, for a period of eighteen months following the termination of this Agreement, it will neither directly nor indirectly, solicit, or attempt to solicit, the business of any customer of Vault America with which Representative had contact, or any customer or prospective customer of Vault America which was provided to Representative by Vault America (whether on a lead list or otherwise) for the purposes of selling products or services that are substantially similar to the Services. Furthermore Representative agrees that it shall neither directly nor indirectly, divert or solicit or attempt to solicit, the business of any customer of Vault America for which Representative receives compensation from Vault America.
13. Confidential Information:
Representative will not disclose to any third party any information in any and all forms received from Vault America under this Agreement, including but not limited to information relating to Vault America technology, business strategies, development and pricing. All such information will remain the property of Vault America and Representative may make only copies of such information in tangible form as is reasonably required for Representative’s use. In consideration of the right to sell and market Vault America cloud storage services and for receipt of commissions, Representative specifically understands and agrees that the above referenced information, as well as the identity, names, addresses, telephone numbers and personal information about customer accounts contracted by Representative, are Vault America’s proprietary trade secrets and confidential to Vault America. Representative agrees not to divulge Vault America’s proprietary information to any entity or individual other than to employees of Vault America. Representative agrees that this provision is binding during the term of this Agreement and for a period of two (2) years thereafter.
The parties also agree that the potential damage from a breach of this Section would result in irreparable injury to Vault America and that monetary damages would be difficult or impossible to calculate and would not provide full relief to Vault America. Therefore, Representative agrees that Vault America may apply to a court of competent jurisdiction in the State of Massachusetts for injunctive relief, including the issuance of a mandatory permanent injunction. Further, if Representative violates this Section, Vault America and Representative agree that Representative forfeits its right to any outstanding or future commission payments. Nothing in this Agreement is intended to limit the remedies available to either party at law or in equity in the event of breach of this or any other provision of this Agreement.
14. Jurisdiction and Venue:
The parties agree that this Agreement shall be governed by, interpreted and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without regard to choice of law principals. The parties further agree that any suit, action or proceeding with respect to this Agreement shall be brought in the courts of the Commonwealth of Massachusetts. The parties accept the sole and exclusive jurisdiction of those courts for the purpose of any such claim, suit, action or proceeding. The parties waive their right to a trial by jury.
15. Assignment:
Neither this Agreement nor any of Representative’s rights or obligations hereunder may be sold, assigned, sublet, encumbered or transferred by operation of law or otherwise (hereafter, a "Transfer") without the prior written consent of Vault America which will not be unreasonably withheld. Any Transfer by Representative without Vault America’s prior written consent shall entitle Vault America, at its option to: (a) consider the Transfer void; (b) consent to the Transfer and hold the Representative and any transferee(s) liable hereunder; or (c) terminate this Agreement immediately upon delivering written notice to Representative. Subject to the foregoing this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors or purported assigns. Vault America may transfer, assign or otherwise in any manner encumber this Agreement and its rights and obligations hereunder without Representative’s prior consent.
Notice:
16. All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be given by: (a) hand delivery; (b) registered or certified mail with postage prepaid; (c) overnight receipted courier service; or (d) telephonically confirmed facsimile transmission, which notice is addressed to Representative at the address first given above and to Vault America at the address set forth below or such other address as may hereafter be designated in writing by the party. Notices given in accordance with subpart (b) shall be deemed delivered three days from the date of mailing. Notices given in accordance with subparts (a), (c) or (d) of this Section shall be effective upon receipt or when receipt is refused.
Vault America
One Post Office Square
Suite 3600
Boston, MA 02109
17. Miscellaneous:
17.1 The failure of either party to give notice as required hereunder or to enforce or insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of any right, term or condition of this Agreement.
17.2 If any claim, suit, arbitration is brought or an attorney is retained by either party to enforce the terms of this Agreement, to enforce a judgment of a court or the arbitrators or to collect any monies due hereunder or to collect money damages for breach hereof, the prevailing party shall be entitled to recover, in addition to any other remedy reimbursement for reasonable attorney’s fees, court costs, costs of investigation and other related expenses incurred in connection therewith.
17.3 If any provision of this Agreement is invalid or unenforceable under applicable law, the provision shall be ineffective only to the extent of such invalidity, without affecting the remaining parts of the provision or the remaining provisions of this Agreement. Representative and Vault America agree to negotiate any such invalid or unenforceable provision to the extent necessary to render such part valid and enforceable.
17.4 This Agreement includes Exhibit A and constitutes the entire agreement between the parties relating to the subject matter hereof, and supersedes any prior oral or written agreements or representations relating to such subject matter.
17.5 This Agreement may be executed in counterparts, and signatures exchanged by facsimile or other electronic means are effective for all purposes hereunder to the same extent as original signatures.
EXHIBIT A
COMMISSION SCHEDULE
A. Base Commission. The following schedule is applicable for Vault America Online Backup and Vault America Email Archiving cloud storage services. For each prospect submitted after the effective date of this agreement, Vault America will pay Representative submitting the order for such services monthly Commissions as follows, based on Monthly Recurring Charges (as defined below):
|
Cloud Storage Services |
Commission Percentage |
|
Vault America Online Backup |
10% |
|
Vault America Email Archiving |
5% |
B. Vault America will pay Representative solely on Monthly Recurring Charges. "Monthly Recurring Charges" refers to the net monthly recurring charges actually paid to Vault America by a prospect hereunder where Vault America has accepted the applicable Prospect’s service order. Monthly Recurring Charges are calculated after netting the application of all discounts, credits (including any billing adjustments), commissions, waivers, promotions and non-payments greater than 60 days. Monthly Recurring Charges exclude:
1. all other charges or rate related adjustments, including but not limited to equipment charges, pass-through charges, access charges, non-recurring charges, hardware charges, and taxes, tax related or tax like charges or surcharges;
2. sales made to existing Vault America customers, including where such customers are converting from a current service type(s) to a new service type(s), unless Representative has obtained the prior written consent of Vault America to such conversion;
3. any Revenue associated with any fraudulent use of the services by any customer solicited by Representative; and
4. any accounts terminated by Vault America.
C. Representative expressly authorizes Vault America to offset any amounts that Representative owes to Vault America either under this Agreement or otherwise including refund of sign up bonus monies paid on any and all Prospects which do not fulfill a minimum one-year term with Vault America.
D. All Commissions will be paid on Monthly Recurring Charges for accounts in good standing. Accounts in good standing assume billing for customers is not greater than 60 days old. All commissions will be paid after the end of that month. For example, Commissions on July Monthly Recurring Charges will be paid 45 days from the end of July (i.e., mid-September).
E. With each Commission payment, Vault America will provide Representative a statement summarizing the computation of the amount paid. All such payments will be final and binding on Representative unless written objection is delivered to Vault America within 30 days of delivery to Representative of such payments. Representative will provide any additional information requested by Vault America that is in Representative’s possession or reasonably available to Representative necessary to resolve the objection.
F. Vault America, in its sole discretion and without prior notice, may terminate an account of a customer solicited by Representative for any reason, including but not limited to, that customer’s credit, bankruptcy or insolvency, inactivity, or breaches of contract terms and conditions. No Commissions will be due to Representative on terminated accounts.