This AGENT Agreement (“Agreement”) is entered into by and between COMPLIANCY GROUP LLC (“COMPANY”) and “AGENT”.
WHEREAS, COMPANY has developed certain computer programs, software, services, and related documentation referred to as “the “Products”, and WHEREAS, AGENT desires to resell or refer the Products in the United States.
NOW, THEREFORE, in consideration of the mutual covenants and promises made by the parties hereto, the COMPANY and the AGENT (individually, each a “Party” and collectively, the “Parties”) covenant and agree as follows:
SECTION 1: COST
- Pricing: See Proposal/Invoice. If AGENT has 5 or more active, paid, subscriptions or total billing in excess of $10,000 per year, AGENT shall upon renewal receive one (1) “ENTERPRISE” version of The Guard™ software for no charge. If AGENT falls below 5 active subscriptions, the annual rate applies.
SECTION 2: TERM AND TERMINATION
A. Term of Agreement. This Agreement shall be effective for a period of one (1) year from the date of its execution (“Initial Year”). The Agreement shall thereafter Auto-Renew on an annual basis, unless AGENT provides notice of termination not less than thirty (30) days prior to end of the then-current term.
B. Mutual Termination Rights. In the event that either party is in breach of any material obligation set forth in this Agreement, that party shall notify the other party in writing. If the breaching party has not cured its breach within sixty (60) days following such notice, then the other party may elect to terminate this Agreement. In the event of termination by AGENT, AGENT shall be entitled to a pro rata refund, and COMPANY retains the right to continue to provide services to the End-User Customer.
C. Bankruptcy. If one of the parties is declared insolvent or bankrupt, either party may immediately terminate this Agreement.
D. Company may terminate this Agreement for certain agent conduct or convenience. If COMPANY determines that AGENT uses or seeks to use the Products in a manner that is unlawful, or that is inconsistent with Agent’s rights, duties, and obligations hereunder, COMPANY may immediately terminate this Agreement.
SECTION 3: NEW OPPORTUNITY REGISTRATION
AGENT shall notify COMPANY in writing of a new potential subscription opportunity. AGENT shall register the potential subscription opportunity. COMPANY shall notify AGENT as to whether the potential new subscriber is qualified. If the subscription opportunity is determined to be a “qualified new subscriber,” as defined in “Definitions,” below, the lead shall be registered and protected for ninety (90) days and shall expire thereafter. If AGENT desires to extend, AGENT is responsible for re-registering the potential subscriber.
COMPANY retains the right to refuse any sale that does not meet the terms and conditions of this Agreement or local, state, and federal laws and regulations
SECTION 4: RESELLER PRICING AND PAYMENT TERMS
A. AGENT may choose either Reseller Pricing or Referral Subscription Revenue Percentage Rate.
B. RESELLER PRICING. AGENT shall receive a twenty percent (20%) discounted price off the company current pricing or a discounted price that is determined at the sole discretion of the COMPANY.
Each new subscription will require a separate user agreement.
Agent may bundle the pricing within the Agent’s fee structure but is prohibited in any manner licensing the COMPANY products for any price that is below The Guard™ List Pricing.
C. REFERRAL SUBSCRIPTION REVENUE PERCENTAGE RATE. If AGENT chooses to refer a new customer to COMPANY, for a period of one (1) year from the time a Customer acquires a new Subscription, AGENT shall be compensated at a referral subscription revenue percentage rate of twenty percent (20%) of the amount billed, or at a discounted price determined at the sole discretion of COMPANY.
COMPANY shall pay commissions due to AGENT by the 15th day of each calendar month for all commissions earned in the prior calendar month. Earnings shall be based on paid and collected funds to the COMPANY.
D. Payment Terms. All payments due to COMPANY are due NET 30 days. If AGENT’S account is past due by 30 days, Company reserves the right to terminate access or collect the outstanding balance from the end-user.
SECTION 5: DUTIES AND OBLIGATIONS OF AGENT
AGENT shall perform its reseller obligations in a professional and business-like manner.
A. Assign one individual REPRESENTATIVE, to be responsible for fulfilling its obligations under Sections 5(B) and 5(C) hereunder.
B. Stay current with respect to information and specifications concerning the COMPANY Products and attend and participate in COMPANY’s Training (See Section 6(C), below) with respect to the Products.
C. Provide prompt, reliable, and competent assistance to AGENT’s end-user customers with respect to the Products. AGENT shall have in place a reporting and escalation process to regularly inform and report to COMPANY any problems, as they relate to the Products. When selling The Guard™, AGENT will have all customers execute an End-User License Agreement. COMPANY shall have no liability to AGENT in the event any prospective End-User refuses to agree to enter into an End-User License Agreement.
D. Conduct its business in a manner that will reflect favorably on COMPANY and the Products. AGENT shall not engage in deceptive, fraudulent, misleading, illegal or unethical business practices, whether with respect to the Products or otherwise. AGENT agrees to use good-faith efforts in the process of learning The Guard™, and during COMPANY-provided training for The Guard™. In the event that AGENT fails to complete The Guard™-related training or refuses to cooperate with COMPANY in its provision of The Guard™-related training, COMPANY reserves the right to terminate this Agreement.
E. AGENT shall not sell, refer or represent a product that is competitive to COMPANY’s Compliance Tracking Solution, The Guard™.
F. Achieve and maintain the Seal of Compliance during the length of this Agreement.
G. Collect all applicable sales taxes.
H. Use its best efforts to promote the sale of the Products. AGENT agrees to permit COMPANY to review all of Agent’s promotion and advertising material for the Products prior to use thereof. AGENT shall not use and shall withdraw and retract any promotion or advertising that COMPANY finds unsuitable, or that is in breach of the terms of this Agreement.
SECTION 6: DUTIES AND OBLIGATIONS OF COMPANY
A. COMPANY will provide an Enterprise Version of The Guard™ Compliance Tracking Solution. A signed EULA is required.
B. COMPANY will provide reasonable commercial and technical assistance to AGENT as may be necessary and appropriate to assist AGENT in effectively carrying out its obligations under this Agreement, and in the promotion and sale of the Products to AGENT’s customers.
C. COMPANY will provide to AGENT up to four (4) hours of product, sales, marketing, and services training. This training will be specific to Company Marketing Material, Product usage, configuration, management and updating. Company will provide sales support calls as needed. COMPANY will provide implementation and support services to the end-user.
D. COMPANY retains the right to refuse any sale that does not meet the terms and conditions of this Agreement and/or the laws and regulations of state, federal and local laws and regulations.
SECTION 7: LICENSE
A. AGENT is hereby appointed as a nonexclusive reseller of the Products for sale in the United States pursuant to this Agreement. AGENT accepts such appointment and agrees to serve as a reseller for the licensing of the Products to end-users as provided herein. This Agreement is not exclusive to AGENT, and COMPANY reserves the unrestricted right to sell, license, market, distribute, or grant to others the right to sell, license, market and distribute the Products and value-added versions thereof anywhere in the world. AGENT may use the trademarks and trade names specified by COMPANY in writing for normal advertising, selling, and promotion of the Products under this Agreement. AGENT agrees that the trademarks, trade names, copyrights, patents, trade secrets, and all other intellectual property rights in the Products, whether or not registered, are and shall remain the sole property of COMPANY, and shall not be used or modified by AGENT except as stated above. AGENT agrees not to remove any copyright notice from the Products.
B. Product Changes. COMPANY has the right to modify, alter, amend or delete from the Products at any time at its sole discretion, following at least thirty (30) days prior written notice to AGENT.
SECTION 8: CONFIDENTIALITY
In the performance of this Agreement, AGENT may have access to confidential, proprietary, or trade secret information owned or provided by COMPANY relating to, but not limited to, software computer programs, object code, source code, customer information, marketing plans, business plans, financial information, specifications, or flow charts (“Confidential Information”). All Confidential Information supplied by COMPANY pursuant to this Agreement shall remain the exclusive property of COMPANY. AGENT may use such Confidential Information only for the purposes of this Agreement. AGENT may not copy, disclose, convey or transfer any of the Confidential Information or any part thereof to any third party without prior written consent from COMPANY.
SECTION 9: LIMITED WARRANTY
COMPANY warrants that it is the owner of or otherwise has the right to license the Products, and otherwise perform its obligations set forth herein. COMPANY makes no other warranties herein.
SECTION 10: REMEDIES
If AGENT commits a breach of any of the provisions of this Agreement pertaining to Confidentiality or Intellectual Property Rights, COMPANY may terminate this Agreement. In the event of such breach, COMPANY shall have, in addition to all other rights in law and equity: (a) the right to have such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach will cause irreparable injury to COMPANY and that monetary damages will not provide an adequate remedy; and (b) the right to require AGENT to account for and pay to COMPANY all compensation, profits, monies or other tangible benefits (collectively “Benefits”) derived or received as the result of any transactions constituting a breach of any provision of this Agreement pertaining to Confidentiality or Intellectual Property Rights. AGENT hereby agrees to account for and pay such Benefits.
SECTION 11: FORCE MAJEURE
Neither party shall be liable or deemed to be in default for any delay, failure in performance, or interruption of service under this Agreement resulting directly or indirectly from acts of God, or any causes beyond the reasonable control of such party.
SECTION 12: DUTIES UPON TERMINATION
Provided termination is not a result of a material breach of the provisions of this Agreement pertaining to Confidentiality or Intellectual Property Rights, the parties agree to continue their cooperation to effect an orderly termination of their relationship. Upon termination, AGENT may not order or receive any additional copies of the Products, and all of AGENT’s rights and licenses granted hereunder shall immediately cease.
Within thirty (30) days of termination, AGENT shall return all copies of any promotional materials, demonstration software, marketing literature, written information, reports, and any related information pertaining to the Products that have been supplied by COMPANY.
Within thirty (30) days of termination of this Agreement, COMPANY shall pay AGENT all compensation due and owing for referrals made prior to the date of termination. Commissions shall be paid based on funds already paid and collected by COMPANY.
SECTION 13: NOTICES
All notices under this agreement shall be in writing, to the addresses specified herein.
SECTION 14: SEVERABILITY
If any term of this Agreement, to be invalid or unenforceable, the remaining terms shall remain in full force and effect as if such invalid or unenforceable term had never been included.
SECTION 15: GOVERNING LAW
This Agreement shall be construed and enforced in accordance with the laws of the United States and the State of New York without regard to principles of conflict of laws.
SECTION 16: FINAL AND ENTIRE AGREEMENT
This Agreement constitutes the final and entire agreement between the parties with respect to the subject matter hereof. This agreement terminates and supersedes all prior understandings, agreements, previous proposals (both oral and written), negotiations, representations, commitments, writings and all other communications between the parties. This Agreement may not be modified except in writing signed by a duly authorized representative of each of the parties.
SECTION 17: RELATIONSHIP BETWEEN PARTIES
Each party is an independent contractor. Neither Party shall assume, either directly or indirectly, any liability of or for the other Party. Neither Party shall have the authority to bind or obligate the other Party and neither Party shall represent that it has such authority.
SECTION 18: SUCCESSORS AND ASSIGNS
This Agreement is not assignable by either party, unless the other provides written consent to assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors.
Customer: the term “Customer” means an individual or entity that purchases a Subscription for one or more Sites.
End User License Agreement: A required document signed from any user of The GuardTM. The agent is responsible for collecting and providing to Company a signed user agreement from each new subscription.
The GuardTM: the term “The GuardTM” refers to The GuardTM” Risk Assessment and Compliancy Management SoftwareTM (aka the “Products” as used in this Agreement).
Price: the term “Price” means the gross amount a Customer pays to Company for a Subscription to The GuardTM”.
Qualified New Subscriber: A subscriber with whom COMPANY has not previously entered into an End-User License Agreement, a Reseller Agreement, or a Referral Agreement.
Renewal: the term “Renewal” means the payment by a Customer for another year’s Subscription for each Primary and Secondary Site.
Site: The term “Site” means a physical location that requires its own compliance assessment and audit tracking (e.g., an individual Customer may have multiple sites), and that requires a distinct, yearly subscription. “Primary Site” means the first Site a Customer purchases a subscription for. “Secondary Site” means a site that a Customer purchases a Subscription for in addition to the Primary Site.
Subscription: the term “Subscription” means the method by which a new Customer licenses The GuardTM on an annual basis during the first year or via a Renewal and includes a signed end user license agreement, that is implemented, and wherein the Company has received payment