SALES
COMMISSION AGREEMENT
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AGREEMENT dated _________________2004, made between Diverse Community, Inc. 250 Bellevue Avenue, Upper Montclair, New Jersey 07043 ("DC”) and _________________________________________________________________________ as an independent contractor (“Contractor”), for the sale and promotion of DC's services which are described generally in Exhibit A (“Services”) according to the terms set forth in this Agreement, in the territory described in Exhibit A (“Territory”). In consideration of the foregoing and for good and valuable consideration which the parties hereby acknowledge, the parties to this Agreement hereby agree as follows: 1. DC has developed the Services and is marketing them to non-profit corporations itself. 2. DC desires and hereby appoints the Contractor as its non-exclusive independent contractor sales representative in the Territory so as to obtain customer orders for DC's Services. 3. For the purpose of determining when a commission is due, the following definitions will apply: a. “Signed Sponsor” means a Sponsor (as defined in Exhibit A) that, through Contractor's efforts, has submitted an application and signed Sponsor Agreement, which have been accepted by DC. b. "Retained Rebates" means the portion of the rebates retained by DC (i.e. not paid out to a Sponsor or returned to a merchant) from the rebates generated from purchases made by a Member (as defined in Exhibit A) who has designated a Signed Sponsor to receive the rebates generated by that Member's purchases. c. "Retained Service Fees" means the portion of service fees retained by DC (i.e. not paid out to a Sponsor or returned to a merchant) from the service fees generated by a Member who has designated a Signed Sponsor as the recipient of fees that such Member earns by completing a survey or doing something else that generates a service fee. 4. DC agrees to pay a commission to Contractor at the rate set forth in Exhibit A on Retained Rebates and Retained Service Fees that are received by DC during the period of one year from the date that an entity becomes a Signed Sponsor. DC may change the commission rate on sixty (60) days prior written notice to Contractor, provided that the changed commission rate will only apply to entities that become Signed Sponsors after the effective date of such notice. All commissions that you earn are subject to subsequent adjustment for returns, cancellations, and such other events as require DC to make a payment back to the merchant and/or accept an offset to other payments that DC receives from that merchant. Such adjustments can be applied at any time by DC at its sole discretion. 5. Within thirty (30) days of the last day of each quarter, DC will calculate the commissions that it owes Contractor, provide Contractor with a statement regarding same and make payment of said commissions. In the event that, as a result of adjustments, Contractor owes DC a payment at the end of any month, DC shall have the option of either (a) carrying such negative balance to the following month and offsetting it against income in the following month, or (b) providing Contractor with a bill requiring Contractor to pay DC the amount of such negative balance within ten (10) days of receipt of the bill.6. All payments shall be made in U.S. currency.7. Consistent with the understanding of the parties to this Agreement, Contractor is an independent contractor and not an employee, partner, franchisee or joint venturer of DC. The Contractor declares and covenants that the Contractor is engaged in an independent business, that the commissions received from DC are not the only income source for such business and has complied and will comply with all federal, state and local laws relating to business permits and licenses of any kind that may be required to carry out the business and tasks to be performed by the Contractor under this Agreement. Contractor is not required by DC to incur any costs or expenses pursuant to this Agreement. If Contractor does incur costs and expenses, such as premiums for insurance of any kind, hiring assistants, or local, state and federal taxes due and/or relating to income received by the Contractor from DC, Contractor agrees to pay them, and not seek reimbursement from DC. No payment or withholding of any federal, state, local, city or other payroll or employment taxes, including but not limited to FICA, state and federal income taxes, FUTA, state disability insurance taxes, and state unemployment insurance taxes relating to income received by Contractor from DC will be made by DC. The Contractor agrees to indemnify and hold DC harmless should a claim related to his expenses, insurance or the lack thereof and/or local, state or federal taxes be made by anyone, including any governmental authority. 7. Contractor is not granted any right to use any of DC’s trademarks, including but not limited to the trademarks listed in Exhibit A in conjunction with the sales and promotions of DC's services. Under no circumstances is a DC trademark to be used as part of Contractor’s corporate name. In the event that Contractor wants to use any trademark of DC, Contractor will first submit the proposed use (e.g. sales brochure, fact sheet) to DC. DC will determine, in its sole discretion, whether or not to permit such use and Contractor will not proceed with the use unless Contractor first receives approval for it. No license and no approval is required for the use and distribution of any materials supplied by DC, including but not limited to information about DC's services. 8. The Contractor cannot hold DC responsible for the loss of a Signed Sponsor or Member, or for any expense, work, effort and/or hardship that is or seemingly is encountered in selling DC's services under this Agreement. 9. DC retains the right to control the sales and promotion activities to insure that they are consistent with the best interests of DC. DC retains the right to establish policies to enhance business and/or customer relations for both the Contractor and DC and to establish other business procedures consistent with these goals and the Contractor agrees to pursue these procedures and policies to the best of Contractor's ability. 10. No worker's compensation insurance has been or will be obtained by DC on account of Contractor. Contractor shall comply with any applicable workers' compensation law with respect to Contractor and Contractor’s employees, if any. Contractor has warranted and represented to DC that Contractor carries automobile liability insurance for injuries to persons and property. Contractor shall indemnify and hold DC harmless against any claim for injuries or damages caused by Contractor while traveling in an automobile in the scope of Contractor’s activities pursuant to this Agreement. 11. Contractor is not entitled to receive and will not receive benefits that employees of DC may or may not receive such as medical insurance, life insurance, paid vacation or holidays, pension or profit-sharing benefits, deferred compensation or any other similar benefits. 12. It is understood that the Contractor may receive proprietary and sensitive information from DC in conjunction with providing the services hereunder. The Contractor agrees that Contractor shall not divulge such information to anyone other than DC during the term of this Agreement and for a period of three (3) years from date of the termination of this Agreement. 13. Contractor acknowledges and agrees that Contractor (A) is not required to maintain a place of business for the purpose of demonstrating the services or for any other purpose related to this Agreement; (B) has not made any payments to DC pursuant to this Agreement and is not required to make any such payments under the terms of this Agreement except to the extent that it is required to refund money paid to it by DC as a result of an adjustment, provided however that this shall not preclude DC from recovering damages, if any, from Contractor in the event of a breach of this Agreement by Contractor; and (C) Contractor is not obligated to purchase anything from DC. DC and Contractor further agree that this is not intended to be a franchise agreement, and DC and Contractor shall take such actions as are necessary to prevent this Agreement from being subject to the franchise or business opportunities laws of any state. 14. This Agreement is governed by New Jersey law, without giving effect to New Jersey's conflict of laws principles. The parties consent to the jurisdiction of the courts of the State of New Jersey and the United States District Court located in New Jersey for any dispute arising out of a breach of paragraphs 12 or 15 of this Agreement. Any other controversy, dispute or question arising out of, in connection with, or in relation to this Agreement shall be determined by arbitration conducted in Northern New Jersey in accordance with New Jersey law and the then existing Commercial Rules of the American Arbitration Association or the Center for Alternative Dispute Resolution, and judgment upon any award may be entered by the highest State or Federal court having jurisdiction. 15. Contractor agrees that it will not solicit any Signed Sponsors, Members, Sponsors or Merchants that are part of DC's program for any business that competes with DC during the term of this Agreement and for a period of two years after the termination of this Agreement. This provision does not prevent Contractor from soliciting Signed Sponsors, Members, Sponsors or Merchants for businesses that do not compete with DC. Contractor further agrees that it will not send spam and more specifically that it will not send e-mails to unknown individuals to solicit their membership at DC. 16. The Term of this Agreement shall commence upon execution hereof and
shall continue for successive one year periods until terminated as provided
below. a) The
Contractor may terminate this Agreement on 30 days written termination notice
to DC, in which case this Agreement will terminate at the end of such notice
period. b) DC
may terminate this Agreement on 60‑days written termination notice to the
Contractor, in which case this Agreement will terminate at the end of such
notice period. c) In
the event that Contractor commits a material breach of this Agreement and DC
notifies Contractor of such breach in writing, Contractor shall have a period
of thirty (30) days to cure such breach.
In the even that such breach is not cured to DC's satisfaction at the
end of such period, DC may terminate this Agreement on ten (10) days prior
written notice. d) Notwithstanding
the provisions of paragraph 16(c), in the event that Contractor breaches the
provisions of paragraph 15 or 18, DC may terminate this Agreement without
giving notice of breach or an opportunity to cure to Contractor, on one (1)
day's prior written notice to Contractor.
In the event of a termination
pursuant to this paragraph, DC will have no obligation to pay Contractor for
commissions which accrued prior to the termination, unless such commissions
accrued at least sixty days prior to Contractor's earliest breach of the
provisions of paragraphs 15 or 18. e) In
the event of a termination of this Agreement by Contractor pursuant to
paragraph 16(a), DC shall continue to make payments based on Signed Sponsors
covering the three months following the date of such notice of termination so
long as Contractor is in compliance with the terms of paragraphs 15 and 18 of
this Agreement.
In the event of a termination of this Agreement by DC pursuant to
paragraph 16(c), DC shall continue to make payments based on Signed Sponsors
for a period of thirty days after such termination, so long as Contractor is in
compliance with the terms of paragraphs 15 and 18 of this Agreement. In the event of a termination of this
Agreement by DC pursuant to paragraph 16(b), DC shall continue to make payments
based on Signed Sponsors so long as Contractor is in compliance with the terms
of paragraphs 15 and 18 of this Agreement. Paragraphs 4 and 5 shall survive as long
as is necessary to complete the payments required under this paragraph 16(e). f) The
provisions of paragraphs 3, 6, 7, 10, 12, 13 and 15-23 shall survive the
termination of this Agreement. 17. The
parties acknowledge and agree that they have had the opportunity to consult
with legal counsel of their choice prior to entering into this Agreement. 18. Contractor represents and warrants that it does not violate any agreement, policy or ethical requirement of a Signed Sponsor by receiving the commission payments pursuant to this Agreement. Contractor authorizes DC to confirm with Signed Sponsors that they have no objection to such commission payments.19. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver. The remedies accorded herein to the parties are cumulative and in addition to those provided by law, and may be exercised separately, concurrently or successively.20. Contractor may not assign this Agreement without the prior express written permission of DC. Notwithstanding the foregoing, consent of DC shall not be required for assignment or transfer made by (a) operation of law, or (b) to an entity that acquires substantially all of the party's stock, provided that prompt written notice of assignment or transfer is given.21. This Agreement contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. It supercedes all prior agreements of any sort between the parties.22. All notices relating to this Agreement to shall
be sent as follows: (a) for DC, via registered mail, return
receipt requested or via an internationally recognized express mail carrier
to Diverse Community, Inc., Attn: Legal - 250 Bellevue Avenue, Upper Montclair,
NJ 07044 USA , and, (b) for Contractor via registered mail, return receipt
requested or via an internationally recognized express mail carrier or via
e-mail, to the physical address listed above or to the email address that
Contractor has provided. All
notices shall be effective upon receipt, provided however that an e-mail notice
sent to an e-mail address that has been provided by the party to whom notice is
being sent shall be effective only if there is some indicia of receipt.
23. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party's behalf. Each party is responsible for compliance with the applicable local laws in the jurisdiction from which it operates and represents and warrants such compliance.
Exhibit A Description of Services, Territory, Sales Commission Rate and Trademarks Description of Services: DC is in the business of assisting not for profit organizations ("Sponsors") in fundraising by directing the organization's members and friends ("Members") to websites that pay a rebate on purchases by referred customers, for the completion of surveys or providing other information, and websites that offer similar fundraising opportunities based on referrals. Territory: Sales Commission Rate: Trademarks: Diverse Community | ||||||||||||||||||||||||||||