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Programs |
Referral ProgramAGREEMENTTHIS AGREEMENT (the "Agreement") dated_________, 2006 (the "Effective Date"), by and between Broadband National, Inc., a Florida corporation (“Broadband National") with its principal place of business at 2770 Indian River Blvd., Ste. 501, Vero Beach, Florida 32960, and , a corporation with its principal place of business at (the "Company"). Broadband National and Company together shall be individually referred to as a “Party” or collectively referred to as the “Parties.” WHEREAS, the Parties desire to enter into a strategic partnership pursuant to which Broadband National shall assist the Company to offer certain telecommunication products, web hosting, web development, Search Engine Optimization products or services (“Services”) for sale via the Internet, call center or other direct response programs, on the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth below: “Advertisements” means privately branded sponsorship messages, banner advertisements, interstitials and buttons developed or agreed upon by Broadband National promoting the Services for on-line promotions or call center sales, executed or promoted by the Company. “Company Site” means the world wide web site: _______________________. “Customer” means any business or consumer that purchases any Service from Broadband National or through one of Broadband National’s Suppliers as a result of Broadband National’s efforts. “Final Sale” means an order placed for a Service that results in Broadband National receiving full and complete payment from the Customer for such a Product and does not result in a chargeback by the Supplier. “Order Form” means an on-line purchase process and purchase order form for prospective customers to order the Private Label Products. “Services” means the Services identified on Exhibit A as attached to this Agreement. “Private Label Web Site” means a privately branded web site publishing offers for the Services, and the terms and conditions upon which such Services shall be offered for sale. 2. Term; Programs; Principal Covenants of the Parties.
3. The Responsibilities of Broadband National. 3.1. On the Effective Date or on such other date as is mutually agreed upon by the Parties hereto, Broadband National shall develop a Private Label Web Site. Broadband National shall update the Private Label Web Site and provide to the Company supplemental information regarding the Private Label Products promoted by Company on the Company Site, including updated and other promotional information, within fourteen (14) business days of creation or changes to any such. Broadband National shall also provide to the Company, upon reasonable request, technical literature pertaining to the Services, to the extent that such literature is available from the Suppliers. 3.2 Broadband National shall be responsible for the procurement of Services from its suppliers and/or telecommunication carriers (the "Suppliers") listed in Exhibit A. Services shall be ordered together with (i) any equipment provided by the Suppliers pertaining to the operation and maintenance of the products; (ii) the terms and conditions of the service plans offered by the Suppliers in connection with such products; and (iii) any material provided by the Company pertaining to such products. 3.3 Broadband National shall remit royalties to the Company in accordance with Section 7 hereof, subject to the Company’s fulfillment of its obligations, as set forth in Section 4 hereof, on a monthly basis. 3.4 Broadband National shall supply monthly reports summarizing inquiries and sales for each customer referred by the Company. Company will receive an Affiliate number that will be used to track all inquiries including leads generated from the private label website. 4. The Responsibilities of the Company. 4.1 The Company shall actively promote the Private Label Products during the Initial Term as described in this Section 4. Any promotion must conform in all respects to any content, design and functionality specifications provided by Broadband National to the Company. Any amendments, supplements or modifications that the Company proposes to make with respect to the promotion of the Sevices shall be subject to the prior written approval of Broadband National, such approval not to be unreasonably withheld. 4.2 Both Parties shall use best efforts to promptly report to the other Party any malfunctions adversely affecting the Company Site or Private Label Web Site and shall take all actions reasonably required to restore access to the Company Site or the Private Label Web Site. 4.3 The Company shall promote offers only for the Services pursuant to the terms of this Agreement. Exhibit A shall be deemed to be automatically amended from time to time to reflect modifications with respect to the Services approved and available for promotion by Company as such shall be mutually agreed upon by the Parties. 4.4 The Company shall not make representations regarding the Services, other than those approved or distributed by Broadband National or any of its Suppliers, unless otherwise authorized in writing by Broadband National. Broadband National shall not be bound by any unauthorized representations or warranties regarding the Services that are made by the Company. 4.5 The Company shall promptly notify Broadband National of any information pertaining to any defects in Services and any Customer complaints it receives regarding such Services. 4.6 Company shall comply in all material respects with all international, federal, state and local laws and regulations pertaining to the privacy of visitors to the Company Site, including, by way of example and not limitation, all anti-spamming laws and shall include a prominent and easy means to “opt-out” of receiving any future commercial communications from the Company. 6. Links. 6.1 During the Initial Term, as material consideration for the fees payable by Broadband National in accordance with Section 7 below, the Company shall promote the Services via its marketing channels. 6.2 The Advertisements may be branded with the name and mark of the Company, subject to the restrictions set forth in Section 9, but shall, in any event, serve to promote the sale of the Services. 6.3 Links. The Company agrees that during the Initial Term of this Agreement it shall not provide links or advertising to any telecommunication products or services that compete with or are substantially similar to the Services, other than those procured through Broadband National.
7. Payments. (a) the fulfillment by Broadband National of a purchase order for Services by end user “Final Sale”; (b) the collection by Broadband National of the purchase price of the Services ordered by a Customer; and (c) the collection by Broadband National of any amounts due from Suppliers as a direct result of the Final Sale of the Services to Customers.
8. Non-Disclosure of Proprietary Information. 8.1 Both Parties acknowledge that during the Initial Term of this Agreement they may come into possession of or become acquainted with certain Proprietary Information (as hereinafter defined) of the other party. The term “Proprietary Information” shall mean all information of a private, secret or confidential nature including but not limited to, information related to the disclosing party’s business, business relationships or financial affairs, whether or not marked or otherwise designated as “confidential” or “proprietary” or with a similar legend indicating its proprietary nature. By way of illustration, but not limitation, Proprietary Information shall include the back-end order fulfillment process developed and utilized by Broadband National in connection with the fulfillment of purchase orders for the Services, information concerning the terms of Broadband National’s strategic partnerships with telecommunication communications service and product providers, and all inventions, products, processes, methods, techniques, formulas, compounds, projects, developments, research data, source code, financial data, personnel data, computer programs, customers and supplier lists, and contacts at or knowledge of customers or prospective customers of Broadband National. The terms of this Agreement shall be treated as Proprietary Information. 8.2 The term “Proprietary Information” shall not include information that: (i) is or becomes generally known or available by publication or otherwise through no fault of the receiving party; (ii) is already rightfully in the receiving party's possession without restriction prior to its receipt from the disclosing party; (iii) is independently developed or learned by the receiving party; or (iv) is lawfully obtained by the receiving party from a third party that has the right to make such disclosure. 8.3 Disclosure/Use Restrictions. Neither Party shall, directly or indirectly (i) disclose Proprietary Information to any person or entity other than its employees, and then only in the event that such employees agree in writing to be bound by the terms of this Section 8; or (ii) use Proprietary Information for its own benefit or for the benefit of any other person or entity, except as specifically authorized by the other Party. 8.4 Required Disclosures. In the event that a Party is required by applicable law, rule or regulation, or pursuant to the order of any court or governmental authority of competent jurisdiction to disclose Proprietary Information of the other Party, such Party shall use commercially reasonable efforts to (i) provide the other Party with at least ten (10) business days prior written notice of such disclosure; and (ii) limit such disclosure to the extent practicable. 8.5 Remedies. Each Party hereto acknowledges that breach of this Section 8 would cause irreparable harm to the other Party and/or its Suppliers for which monetary damages alone would be an inadequate remedy. For this reason, the Parties hereto agree that in the event of a breach or a threatened breach of this Section 8, the non-breaching Party and/or its Suppliers shall be entitled to the entry, by a court of competent jurisdiction, of a temporary restraining order, injunction or similar relief, as well as reimbursement of reasonable attorneys' fees or other costs incurred in obtaining such relief. Nothing in this Section 8 shall be construed as prohibiting either Party and/or its Suppliers from pursuing other remedies available at law or in equity against the breaching party or any other person or entity. 9. Ownership; Non-Solicitation; Non-Competition. 9.1 Ownership. (a) All tangible information, including but not limited to any drawings, designs, information or specifications submitted by Broadband National to the Company with respect to the Private Label Web Site or the Advertisements, shall at all times be, and shall be deemed to be, the property of Broadband National, and Broadband National shall retain all right, title and interest in and to any intellectual property rights with respect to the content of the Private Label Web Site and the Advertisements, as amended, supplemented or modified from time to time by Broadband National or the Company. Notwithstanding anything to the contrary contained herein, the Company Marks shall at all times be, and shall be deemed to be, the property of the Company. (b) Information pertaining to individual Customers obtained by Broadband National or the Company in connection with the sale of the Services through the Private Label Website or the Company Site shall at all times be, and shall be deemed to be, owned jointly by Broadband National and the Company; provided, however, that all such information shall be used in accordance with applicable law, including but not limited to the Children’s Online Privacy and Protection Act. 9.2 Non-Solicitation of Customers. During the Initial Term of this Agreement, and for a period of ninety (90) calendar days thereafter (the "Non-Solicitation Period"), the Company shall not knowingly take any action to cause any Customer to transfer its then active telecommunication communications products or services to any other telecommunication communications service, system or carrier. Such prohibited actions include, but are not limited to, providing competitive telecommunication communications products or service providers or carriers with the name, address, telephone number, email address, or other identifying information relating to any Customer. Information pertaining to Customers shall be deemed to be Proprietary Information subject to Section 8 hereof. Notwithstanding such, the foregoing shall not prohibit the Company from performing general solicitations not specifically targeting Customers via general advertisements and contracting with any person who may respond to such general advertising. 10. Grant of License. (a) Broadband National hereby grants to the Company a non-exclusive, non-transferable, non-sublicenseable license to use the logo, trademarks or trade names of Broadband National (collectively, the "Broadband National Marks") solely in connection with the promotion and sale of the Services through the Company Site. The Company acknowledges that the Broadband National Marks are the sole property of Broadband National and, other than the license granted herein, nothing shall be construed to grant the Company any right, title or interest in or to the Broadband National Marks. (b) The Company hereby grants to Broadband National a non-exclusive, non-transferable, non-sublicenseable license to use the logo, trademarks or trade names of the Company (collectively, the "Company Marks") solely in connection with the promotion and sale of the Services. Broadband National acknowledges that the Company Marks are the sole property of the Company and, other than the license granted herein, nothing shall be construed to grant Broadband National any right, title or interest in or to the Company Marks. (c) Each Party reserves the right to approve the form and placement of their respective Marks on the Company Site, the Private Label Web Site, the Advertisements, or any materials used to promote the Services, such approval not to be unreasonably withheld or delayed. Each Party may require the other Party to suspend the use of the requesting Party’s Marks should the requesting Party reasonably determine that such use is misleading or inappropriate or fails to comply with its policies regarding the use of its intellectual property, provided the other Party has been provided a copy of such policies. 11. Representations and Warranties. Each Party represents and warrants to the other Party the following: (a) Authority; Compliance. The representing Party has all right, title and power necessary to perform its obligations hereunder and is in compliance with all federal, state and local laws material to the conduct of its business and necessary for its performance of this Agreement. (b) No Infringement. The Marks of the representing Party and all content provided by the representing Party or its affiliates for inclusion in any promotional materials distributed by the representing Party and/or in connection with offer and the sale of the Private Label Web Products, do not and will not, to the knowledge of the representing Party, infringe upon or otherwise violate any copyright, trade secret, trademark, patent, invention, privacy, or non-disclosure rights (collectively, the "Intellectual Property Rights") of any third party. The representing Party further represents and warrants that it owns or has sufficient rights in and to all of its marks to grant to the other Party the license described in Section 10. (c) No Objectionable Material. The Company Site, the Private Label Site and any other promotional materials prepared and distributed by the Company or its affiliates in connection with the offer and sale of the Services do not and will not contain any material that (i) is intentionally misleading or deceptive, or (ii) is known to be libelous, defamatory, obscene, or pornographic, intended to harass or annoy, or which violates any civil or criminal laws. Web sites utilized by the Company or its affiliates to promote the Services do not, to the knowledge of the Company, link to any site containing material of the type described in the preceding sentence. 13.1 Each Party shall indemnify and hold the other party harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorney's fees) arising from or relating to such Party’s breach of any of the representations or warranties set forth in Section 11. Each Party shall (i) defend at its own cost and through counsel of its own choice or (ii) settle, subject to the approval of the other Party, such approval not be unreasonably conditioned, withheld or delayed: any actions or suit against the other for which it is responsible hereunder and shall reimburse the other for reasonable attorney’s fees, interest, costs of suit and all other expenses by the other in connection therewith. Each Party shall notify the other promptly of any claim for which the other is responsible hereunder, and shall cooperate with the other in every reasonable way to facilitate the defense of any such claim. 13.2 The indemnifying Party's obligations are conditioned upon the indemnified Party (i) providing the indemnifying Party with prompt written notice of any claim, suit or proceeding for which the indemnified Party is seeking indemnity and (ii) reasonably cooperating with the defense or settlement negotiations, as the case may be, conducted by the indemnifying Party. 13.3 LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION 13, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, UNDER THIS AGREEMENT OR OTHERWISE, FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, ANTICIPATED PROFITS OR LOST BUSINESS. IN ADDITION, IN NO EVENT SHALL EITHER PARTY BY LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, FOR DAMAGES IN EXCESS OF THE VALUE RECEIVED BY SUCH PARTY UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH A CLAIM FOR DAMAGES AROSE. THE FOREGOING LIMITATIONS SHALL APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. 14. Independent Contractor. Each Party agrees that neither Party is an employee, attorney-in-fact, agent, partner or joint venturer of the other Party for any purpose and does not have the authority, actual or implied, to bind the other Party to any contract or obligation, other than to fulfill purchase orders for the Services, to the extent that such products are pursuant to this Agreement. The Company is, and shall be deemed to be, an independent contractor. All costs and expenses of performing a Party’s duties hereunder shall be borne solely by the Party performing such duties. 15. Inspection and Audit. Each of the Parties shall maintain records containing information sufficient to verify the completeness and accuracy of its respective accounting and promotional activities that are directly related to this Agreement. Once every fiscal year, with no less than thirty (30) days prior written notice, each Party shall have the right to have an independent auditor examine the books and records of the other Party. The examination shall be conducted during regular business hours. The examination shall be reasonably limited in scope and duration to verify the completeness and accuracy of each Party’s accounting of gross revenue derived from the Final Sale of Services through the Company or Private Label Web Site. In the event that the Party conducting the audit establishes that an amount is payable to the Party conducting the audit from the other Party, such amount shall immediately be paid together with an amount equal to the direct costs incurred as a result of the audit. 16. Termination. 16.1 Termination. This Agreement shall be terminated: (a) by either Party, upon ten (10) days prior written notice, in the event that the other Party (i) ceases to function as a going concern or to conduct operations in the normal course of business, or (ii) files a petition, voluntarily or involuntarily, under any state or federal bankruptcy or insolvency law, which petition has not been dismissed or set aside within sixty (60) days of its filing; (b) by either Party, upon one (1) day written prior written notice, in the event that the other Party (i) has committed any act of fraud or dishonesty against the other Party or other act which may reasonably harm the reputation of the other Party or any of its Suppliers, or (iii) fails to comply with the policies related to this Agreement, of which the such Party has received prior written notice; (c) by either Party in the event that the other Party breaches any material provision of this Agreement and fails to correct such breach within ten (10) days of its receipt of notice of such breach. 16.2 Effect of Termination. On the effective date of the termination of this Agreement (i) any royalty payments which have accrued on or before such date shall become immediately due and payable, and (ii) the Company shall immediately cease its promotional activities with respect to the Services and shall no longer hold itself out as a strategic partner of Broadband National. Broadband National shall have no liability for payment of any royalties in excess of the royalties accrued to the Company as of the effective date of the termination of this Agreement. 17. Assignment. Neither of the Parties may, without the other Parties' prior written consent, which shall not be unreasonably withheld, assign or transfer this Agreement, or any of its rights or obligations under this Agreement to any person ("Assignee") except as part of the sale of all or substantially all of the assets of the Party or merger of the Party; provided, however, that the Assignee agrees to fully perform and be bound by the provisions of this Agreement. 18. Notices. All notices permitted or required hereunder shall be in writing and shall be deemed to have been given (i) upon personal delivery; (ii) one (1) day following deposit with an overnight courier that keeps written records of its deliveries; or (iii) three (3) days following deposit as certified mail, return receipt requested, addressed to the party at the address first written above. 19. Governing Law; Consent to Jurisdiction. This Agreement shall be construed and governed by the laws of the State of Florida, without regard to the conflicts of law provisions thereof. 20. Expenses. Except as otherwise provided herein, each party shall pay its own legal, accounting, out-of-pocket and other expenses incident to this Agreement and to any action taken by such Party in preparation for performing its obligations under this Agreement. 21. Invalidity. In the event that any one or more of the provisions contained herein or in any instrument referred to herein shall, for any reason, be held to be invalid, illegal or unenforceable, then to the maximum extent permitted by law, such provision or provisions shall be judicially reformed consistent with the parties' intentions so as to be valid, legal and enforceable, and such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or such other instrument. 22. Arbitration. Any and all disputes arising out of or in connection with this Agreement shall be finally settled by arbitration in accordance with the rules of the American Arbitration Association. The arbitration proceeding shall take place in Northern Virginia and any award rendered shall be final and binding upon the parties. Judgment of any such award may be entered in any court having jurisdiction over the parties or their assets. The costs of arbitration shall be shared equally by the parties. Each party will pay its own attorney's fees and costs. 23. Survival. The obligations of the Parties under Sections 8, 9, and 13 shall survive the termination of this Agreement. 24. Construction; Amendments and Waivers. The Agreement, together with any exhibits attached hereto, constitutes the entire agreement of the Parties concerning the subject matter hereof and supercedes all prior agreements, understandings and discussions, whether oral or written, of the Parties. No modification or waiver of this Agreement shall be binding unless such modification or waiver is set forth in a writing that is signed by the Party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless expressly provided otherwise. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date first written above. «« Back to my application form
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