Independent Agent Agreement
THIS INDEPENDENT AGENT AGREEMENT (the “Agreement”) is entered into as of , between (“Agent") and iTelecom, Inc., ("Company").
WHEREAS, Company, under contract with various telecommunications and technology solution providers (“Service Providers”) is in the business of selling telecommunications and technology services provided by such Service Providers (the “Services”) to individuals and businesses, and
WHEREAS, Agent is interested in promoting and marketing Services, in accordance with the terms of this Agreement, and
WHEREAS, Company desires to authorize Agent to promote and market Services to prospective end user customers (“Customers”) subject to the terms and conditions contained in this Agreement;
In consideration of the mutual covenants set forth in this Agreement, the parties agree as follows:
1. AGREEMENTThis Agreement consists of the Authorized Sales Agent Agreement and any exhibits, addenda or other attachments or forms signed by both parties.
2. AUTHORIZATION AND DUTIESDuring the Term of this Agreement Agent is authorized to act as an independent sales representative and to market and promote the Services. Agent will use its best efforts to market Services, and shall abide by the policies and procedures of Company and each Service Provider. Agent Agrees to the following:
3. COMPENSATIONAs compensation for Agent's services, Company will pay to Agent a percentage of the monthly charges received by Company from Service Provider for Services sold to Customers by Agent (the “Monthly Recurring Charges” or “MRC”. The percentage of MRC received by Company that is, in turn, paid by Company to Agent shall be referred to hereafter as “Commissions”. Commissions shall be calculated in accordance with Schedule A.
For as long as Commissions are payable to Agent pursuant to this Agreement, Company reserves the right to offset said Commissions as follows:
4. NON-SOLITICATION, ETC.Agent hereby agrees that during the Term and for a period of one (1) year thereafter, Agent shall not directly or indirectly:
Should such solicitations occur unintentionally, upon notice or discovery, Agent agrees to immediately cease any such solicitation, unless otherwise agreed to in writing by Company at its sole discretion. Further, Agent must immediately cease and desist any activity that has caused Company to be in breach of any agreement with a Service Provider.
5. INDEMNIFICATIONCompany will indemnify, defend and hold harmless Agent from and against any and all claims, demands, actions, damages, losses, assessments, charges, liabilities, costs and expenses including without limitation, interest, penalties' and attorney’s fees which at any time may be asserted against or suffered by it, directly or indirectly, which arise out of Company’s negligence in the performance of its duties hereunder.
Agent will indemnify, defend and hold harmless Company, including all its officers, directors, employees, agents and affiliates from and against any and all claims, demands, actions, damages, losses, assessments, charges, liabilities, costs and expenses including without limitation, interest, penalties and attorney’s fees which at any time may be asserted against or suffered by any or all of them, and which arise solely as a result of Agent’s negligence in the performance of its duties hereunder.
6. LIMITATION OF LIABILITYExcept for each party’s undertaking to indemnify the other in Section 4, and except for liability arising out of slamming or cramming complaints, neither party will be liable to the other for anything other than Commissions with respect to this Agreement except for the party’s gross negligence or willful misconduct. Neither party will be liable for consequential, incidental, special or indirect loss or damage of any kind. In no event shall Company be liable to Agent for any indirect, special, incidental, consequential, special, punitive or exemplary damages, including but not limited to damages for loss of revenue, loss of profits, loss of Customers or loss of goodwill, arising in any manner from this agreement and/or Company’s and/or any Service Provider’s performance or nonperformance hereunder. Without limiting the foregoing, in no event shall Company’s total liability hereunder exceed an amount equal to the lesser of the Commissions due to Agent during the six (6) months prior to any claim of breach or damage or $5,000. . Nothing in this agreement shall be construed to create a third party beneficiary relationship with any of Agent’s customers.
7. TRADE SECRETSThe Parties expect that each of them, in the course of rendering Services to the other pursuant to this agreement, may have access to information relating to the other Party’s financial plans, techniques and processes, customers, proprietary know-how or marketing plans. All such information and this Agreement are trade secrets that the Parties shall not disclose directly or indirectly, or use in any manner, either during the Term of this Agreement or at any later time except as required in the course of the Parties’ performance of this Agreement or as required by law.
Any Sales Lead information provided to Agent by Company shall be considered a trade secret and shall only be used for the purposes of marketing Company’s Services.
8. TERM AND TERMINATIONThe initial term (the “Initial Term”) of this Agreement shall be for one (1) year commencing on the date first written above. The Agreement shall be renewed automatically thereafter for succeeding terms of one (1) year (each a “Renewal Term”) unless terminated in writing in accordance with the requirements below. The Initial Term and all applicable Renewal Terms shall hereafter be referred to collectively as the “Term”.
9. CUSTOMER SUPPORTAgent agrees to maintain regular contact with Customers in order to provide support and ongoing customer service, including but not limited to assisting with Customer contract renewals and working with Customers during any interruptions of the Services. If Company, in its reasonable business judgment, determines that Partner is not satisfying this requirement, Company shall notify Partner in writing regarding same. If Partner is unwilling or unable to perform the duties set forth within 30 days of such notice, Company may, in its reasonable business judgment, assign Agent’s Customer accounts to a qualified Company partner or support representative.
10. AMENDMENT NOTICESThis contract may be amended at any time by Company. Agent will be notified of such amendments to this contract via e-mail or through US Mail. Notices from one party to the other party shall be effective upon delivery when sent via e-mail or when sent via US Mail to the address listed below.
11. ATTORNEY’S FEESIf any action is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees in addition to any other relief to which the party may be entitled.
12. ENTIRE AGREEMENTThis Agreement supersedes any and all agreements, both written and oral, between the parties with respect to the rendering of Services by Agent for Company, and contains, together with any attachments hereto, all of the covenants and agreements between the parties with respect to the rendering of these Servicesin any manner whatsoever. Each party acknowledges that no inducements, promises, or agreements, written or oral, have been made by either party that are not embodied in this Agreement.
13. WAIVERThe terms, covenants, representations and warranties of this Agreement may be waived only by a written instrument executed by the Party waiving compliance. The failure of either Party at any time to require performance of any provision hereof shall, in no manner, affect the right at a later date to enforce the same. No waiver by either Party of any breach of any term, covenant, representation or warranty contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be construed as a further or continuing waiver of any such breach, or the breach of any other term, covenant, representation or warranty of this Agreement.
14. GOVERNING LAW; VENUEThe laws of the State of California will govern the validity and construction of this agreement and of the rights and duties of Company and Agent. Jurisdiction and venue of any suit or action arising out of this agreement or the performance rendered by either party pursuant to this agreement shall lie only in Los Angeles County, Los Angeles and Company and Agent, by execution of this Agreement, irrevocably consent to the personal jurisdiction of any federal or state court of such venue.
15. NON-ASSIGNABILITYNo whole or partial assignment of this Agreement or of any right, duty or obligation of performance arising under it may be made without the prior written consent of the non-assigning party which consent will not be unreasonably withheld. Notwithstanding the foregoing, (i) Company may assign, without the consent of Agent, its rights and obligations under this Agreement to any of its Affiliates, successors through merger, or acquirers of substantially all of its assets.
16. SUCCESSORS AND ASSIGNSThis Agreement shall inure to the benefit of and be binding on the parties' successors and assignees.
17. INDEPENDENT AGENTAgent is an independent agent and not an employee of Company. Company shall have no responsibility for the payment or withholding of taxes in connection with any Commissions due hereunder. Nothing in this Agreement shall constitute a Party as legal representative or agent of the other Party having the right or authority to assume, create or incur liability or any obligation of any kind, express or implied, against or in the name or on behalf of the other Party. Neither Party nor anyone employed by either Party shall be considered an agent of the other Party for purposes of Unemployment or Worker’s Compensation coverage, the same being hereby expressly waived and excluded by the parties hereto. Agent is an independent agent and not an employee of Company. Company shall have no responsibility for the payment or withholding of taxes in connection with any Commissions due hereunder.
19. AGENT PORTAL TERMS AND CONDITIONSAdditional terms and conditions of this Agreement (the “Portal Terms and Conditions” or “Terms”) governing Agent behavior in Company’s online Agent application (the “Portal”) are set forth in the Portal and may be accessed via the following link: https://itelecom.speakap.com. The Terms are specifically incorporated into this Agreement by reference as if copied herein verbatim. The Terms may be modified from time to time in Company’s sole discretion; provided, however, no such modification shall become effective until 10 days after Company provides written notice to Agent regarding same. Any violation of the Terms by Agent shall result in the revocation of Agent’s Portal access. In the event of any conflict, the following order of precedence shall apply: (1) this Agreement; (2) the Terms; (3) any exhibits, schedules, appendices or attachments.
20. FORCE MAJEURENeither party shall hold the other party liable for damages incurred which are the result of circumstances or events which are beyond the reasonable control of a party, including, but not limited to, acts of nature, war terrorism, fire, riots, work stoppages, civil disturbances, acts of a governmental entity, or failure of a third party supplier to perform a function essential of this Agreement.
21. AUTHORITY TO BINDEach signatory to this Agreement represents that they have the authority to bind their respective entities to the terms and conditions of this Agreement.
22. ACKNOWLEDGMENTBy their respective signatures below, each party acknowledges and states that the party has read and understands the provisions of this Agreement.
23. SURVIVALAll terms and provisions of this Agreement that should by their nature survive the termination of this Agreement shall survive including but not limited to Sections 2 through 6, and 16.
WHEREFORE, the parties have caused this Agreement to be executed by their authorized representatives.
Micah BevitziTelecom CEO
640 Cypress Ave
Pasadena, CA 91103
Company shall pay Commissions to Agent for Services sold by Agent for which Company receives compensation. Agent’s pass-through percentage the compensation Company receives shall be ninety percent (90%). Commissions are calculated by multiplying Agent’s pass-through percentage by the applicable MRC.
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Signed by Micah Bevitz
Signed On: August 16, 2022
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Document Name: Independent Agent Agreement
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