1. PARTNER PROGRAM
Subject to the terms and conditions of this Agreement, GreenLink retains Partner as a non-exclusive, marketer and promoter of GreenLink’s VOIP Services and Products without limitations of geography, markets, or types of clients to which Partner desires to market. GreenLink may offer Services and Products nationwide either directly to customers or potential customers, or through other Partners, sales representatives, promoters or marketers, or any combination thereof. Territory is on a non-exclusive basis.
Partner agrees to use its best efforts to market and promote the Services and Products of GreenLink. Partner shall refer any potential End User (as described below) interested in GreenLink’s Products and Services directly to GreenLink in consideration for a Partner commission for each End User referred by Partner, provided, however, that all Services and Products to be provided to End Users shall be subject to acceptance, limitation or rejection by GreenLink in its sole discretion. GreenLink reserves the right to amend its Services and Products at any time and from time to time. Partner shall have no right, power or authority to represent that Services and Products may be obtained on terms and conditions different than those currently offered by GreenLink (and any modifications thereto) or to grant any discount or make any adjustment to any rate for the Services or Products. GreenLink shall have no obligation or liability in connection with any Services or equipment not purchased through GreenLink, or for any abuse or misuse of any equipment by any party other than GreenLink. For the purpose of this Agreement, “End User” shall mean customers purchasing Services and Products from GreenLink forwarded by Partner or, if the customer orders directly from GreenLink through GreenLink’s web site, any customer who specifies Partners as referring such customer to GreenLink’s web site.
GreenLink agrees to pay Partner a commission on sales to referred End Users for Services and/or Products provided by GreenLink. Partner agrees not to seek commissions for any order for which it was not the producing cause. There is no right to any commission until an End User Agreement has been signed by the End User and an invoice has been paid by the end-user.
GreenLink may make available a reasonable amount of pricing brochures, sales literature, and such other materials (collectively, the “Sales Literature”) as may be necessary, proper, or convenient in the GreenLink’s sole judgment to assist Partner under this Agreement. GreenLink will use commercially reasonable efforts to keep Partner informed of new Products and Services via periodic product updates. GreenLink may from time to time offer general educational seminars for both new and authorized Partner’s, but is under no obligation to do so.
Subject to the terms and conditions set forth herein, this agreement will remain in effect until either party has terminated the agreement.
Either GreenLink or Partner may terminate this Agreement for any reason upon 30 days prior written notice to the other, in which case this Agreement shall terminate on the last day of the month immediately following the 30th day of such notice. In addition, this Agreement may be terminated immediately by GreenLink, in its sole discretion, through written notice under any of the following conditions: (1) Partner’s cessation of business, election to dissolve, dissolution, insolvency, failure in business, commission of an act of bankruptcy, receivership, general assignment for the benefit of creditors, or filing, voluntary or involuntary, any petition in bankruptcy or relief under the provisions of the bankruptcy laws, or a receiver, or a liquidator or trustee is appointed with respect to any part of Partner’s assets; (2) Partner breaches any of the provisions of this Agreement and fails to remedy such breach within (30) days after written notification by GreenLink or GreenLink is not satisfied that Partner’s breach has been fully cured or remedied; (3) Partner or any of its key executive officers is convicted of a crime which could adversely affect, in the GreenLink’s sole discretion, the goodwill of GreenLink; (4) Partner breaches the provisions in this Agreement; or (5) Partner makes a material misrepresentation to GreenLink, its customers or any potential customer concerning its relations which GreenLink or GreenLink’s Products or Services. Neither party shall have any liability to the other for any claims arising out of a termination of this Agreement, including without limitation, for compensation, reimbursement or damages for the loss of profits, sales or goodwill. In the event that GreenLink terminates this Agreement, GreenLink will pay Partner commissions to Partner on all revenue received on orders that were “live” service for the period prior to such termination.
Greenlink provides Evergreen commission for products and services to the partner specified on such agreement. Such commission shall remain in place as long as the End User continues to: 1) Use Greenlink’s Products & Services 2) Continues to pay invoices associated with the service. Compensation only applies to sales of GreenLink’s Products or Services pursuant to an End User Agreement, which come about and are a direct result of Partner’s marketing efforts. GreenLink agrees to compensate Partner as defined in Schedule A attached hereto. Partner agrees that if it receives commissions for any product or service that is subsequently determined to be fraudulent or otherwise uncollectible, then the amount paid to Partner for said Products or Services shall be deducted from subsequent commission by charge-back to Partner. If subsequent commissions are not sufficient to repay the charge-back. Partner will pay the charge-back commission.
All Partner commissions shall cease (unless already earned) upon termination of this Agreement: (i) if this Agreement is terminated by GreenLink for any reason, (ii) if this Agreement is terminated by Partner for any reason, or (iii) upon expiration of this Agreement as set forth herein.
4. BEST EFFORTS
Partner shall submit orders for such specified Products or Services in writing or by any other manner as prescribed by GreenLink. It is understood and agreed that no order submitted by Partner is effective or binding upon GreenLink unless approved and accepted by GreenLink, which may reject any order or portion thereof; however approval and acceptance shall not be unreasonably withheld. Partner will disclose to any potential Customer the fact that an order is not binding until accepted by GreenLink in writing. GreenLink shall use its best efforts as it deems appropriate to provide approved Products or Services promptly, but GreenLink shall in no way be held liable for any actual, special, incidental, consequential or punitive damages for any delay in providing such Products and Services, however caused. GreenLink at is sole discretion, shall have the right to terminate Services or Products to any or all Partner customers or locations, without notice, for fraud, violation of applicable international, federal, state, or local laws or regulations of any Regulatory Authority. Partner will not imply or represent that it has the authority to bind GreenLink.
Subject to the terms and conditions of this Agreement, GreenLink grants Partner a non-exclusive, non-transferable, royalty-free, and restricted license to use GreenLink’s registered and unregistered trademarks and service marks and GreenLink’s trade name (collectively, the “GreenLink’s Trademarks”), to the extent necessary in the GreenLink’s judgment for Partner to perform its duties under this Agreement. Partner acknowledges that the GreenLink’s Trademarks and the goodwill related thereto are the exclusive and sole property of GreenLink and agrees that it will not contest the ownership or validity of the GreenLink’s Trademarks. Partner agrees that any and all goodwill arising from its use of the GreenLink’s Trademarks shall inure solely to the benefit of GreenLink. Partner agrees to cease use of any of the GreenLink’s Trademarks, immediately upon receipt of written request from GreenLink. Partner agrees not to use or register in any country and trademarks, service marks, trade names, or other designations resembling or confusingly similar to the GreenLink’s Trademarks.
Partner agrees that all uses of the GreenLink’s Trademarks shall be under the control of GreenLink, which shall also control the nature and quality of all Products and Services provided or advertised in connection with the GreenLink’s Trademarks. When requested, Partner agrees to furnish, at no charge, to GreenLink, samples of advertising, promotional, and any other materials that may permit GreenLink to determine whether Partner’s use of the GreenLink’s Trademarks meets the standards, specifications, and directions approved by GreenLink. If, at any time, the advertising, promotional, or other materials bearing the GreenLink’s Trademarks shall fail to conform to GreenLink’s standards, specifications, and directions, Partner shall promptly remove the GreenLink’s Trademarks from the promotional, advertising or other materials, and cease using the same. Partner agrees to indemnify, defend, and hold harmless GreenLink against any and all damages, losses, claims, suits, or other expenses whatsoever arising out of (1) Partner’s promotion, advertising, or use of Products and Services under GreenLink’s Trademarks and (2) any use of the GreenLink’s Trademarks inconsistent with this Agreement, including GreenLink’s attorney’s fees and costs incurred in defense of any action against GreenLink arising from any action, omission or misrepresentation of Partner.
6. RIGHTS AND OBLIGATIONS UPON TERMINATION OR EXPIRATION
Upon the termination or expiration of this Agreement, the parties hereto agree that Partner shall immediately cease using and shall deliver (or return, as applicable) to GreenLink, without retaining copies: (a) any unused sales literature of GreenLink; (b) all lists of subscribers, books, records and other information supplied to, developed or maintained by Partner pertaining to GreenLink’s customers or prospective customers of GreenLink, and otherwise pursuant to its exercise of its rights and performance of its obligations under this Agreement; and (c) all forms, directives, policy manuals and other written information and materials supplied to it by GreenLink pursuant to this Agreement or which contain GreenLink’s trademarks or service marks. Furthermore, Partner shall immediately cease to identify itself as a Partner for, or other representative of, GreenLink.
7. LIMITATION of LIABILITY
IN NO EVENT SHALL GREENLINK BE LIABLE TO Partner FOR INDIRECT, INCIDENTIAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR OTHER MONETARY LOSS INCURRED BY Partner WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING STRICT LIABILITY) ARISING OUT OF OR CONNECTED WITH THE USE OR SALE OF COMPANY’S SERVICES AND PRODUCTS, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY BE LIABLE TO Partner FOR MORE THAN THE TOTAL AMOUNT PAID IN COMMISIONS TO THE Partner UNDER THIS AGREEMENT IN THE PRIOR SIX MONTHS.
8. INDEPENDENT CONTRACTOR RELATIONSHIP
With respect to all matters relating to this Agreement, Partner shall be deemed to be an independent contractor, shall bear its own expenses in connection with this Agreement and shall have no express or implied right or authority to assume or create any obligation on behalf of GreenLink. Nothing stated in this Agreement shall be construed as creating the relationships of employer and employee, partnership or joint venture between GreenLink and Partner. Partner shall not represent itself or its organization as having any relationship to GreenLink other than that which is described in this Agreement. Partner shall not have, nor shall it hold itself out as having, the power to make contracts in the name of or binding on, nor shall it have the power to pledge credit or extend credit in the name of GreenLink. GreenLink reserves the right but not the obligation to withhold applicable state and federal taxes from Partner commissions if required by law or court order. Partner shall have no authority that is not expressly granted to it in this Agreement.
9.1. Force Majeure
Neither party shall be responsible for any failure to perform any non-monetary obligation hereunder because of any (i) act of God, (ii) war, riot or civil commotion, (iii) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages or failures (iv) loss of internet access or functionality due to hacking, worms, virus, DNS failure or by any other means, or (v) any other similar forces beyond such party’s control.
Without limiting any other provision herein, Partner shall indemnify, defend and hold GreenLink, its representatives, employees, other Partners and assignees harmless against any liability for any claims arising out of its performance or non-performance of this Agreement, or any actions of Partner’s employees, independent contractors or Partners or their duties or rights pursuant to this Agreement or any other act or omission that results in any Claim against GreenLink, its other Partners, employees or Partners. For purposes of this indemnification, “Claims” means and includes all obligations, such as taxes in connection with business conducted or referrals or sales made by Partner, actual and consequential damages, unless otherwise provided herein, and out-of-pocket costs reasonably incurred in the defense of any claim, such as accountants’, attorneys’ and expert witness fees, costs of investigation and proof of facts, court costs, other litigation expenses, travel and living expenses. Each party shall have the right to defend any such claim against it. This indemnity shall continue in effect even after, and notwithstanding, this Agreement’s expiration or termination.
GreenLink reserves the right, in its sole discretion to alter, amend or change this Agreement upon 10 days written notice to Partner.
9.4. Applicable Law and Venue
All disputes with respect to the construction of this Agreement and the rights and liabilities of the parties shall be governed in accordance with the laws of the State of Texas. Exclusive venue of any dispute involving this Agreement, or between Partner and GreenLink, shall be in Dallas County, Texas.
9.5. Entire Agreement
This Agreement sets forth the entire agreement between the parties concerning the subject hereof, and supersedes all prior and contemporaneous written or oral negotiations and agreements between them concerning the subject matter hereof.
The failure of either party at any time to require the performance by the other party of any provision of this Agreement shall not affect in any way the right to require such performance at any later time nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of such provision.
This Agreement may be freely assigned by GreenLink to any successor of it or to any other firm or entity capable of performing its obligations hereunder.
Neither this Agreement, nor any right or obligation of Partner shall be transferred, assigned or encumbered (including by operation of law) by Partner without GreenLink’s prior written consent. This consent will not be unreasonably withheld provided that the proposed transferee meets with the GreenLink’s approval and provided it agrees to execute GreenLink’s then current form of this Agreement. Any purported transfer, assignment or encumbrance without such consent shall be void. Subject to the restrictions against assignment herein provided, this Agreement shall bind and inure to the benefit of the successors and assigns of the parties hereto.
Any notice or other written communication required or permitted to be given by this Agreement shall be deemed given when personally delivered or five (5) business days after it has been mailed, and shall be delivered by personal delivery, by certified mail, or by reliable overnight carrier, and shall be addressed to the addresses listed below or such subsequent address as notified pursuant to this section.
If any provision of this Agreement is determined to be invalid or unenforceable, the provision shall be deemed to be severable from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of this Agreement.
This Commission Plan will be in effect for all “live” Services that occur on or after the Effective Date of the Agreement. GreenLink may change this Commission Plan at any time, in whole or in part by giving thirty days (30) written notice to Partner. Continued sales efforts by Partner shall constitute acquiescence and acceptance to the new terms.
GreenLink’s (“Partner”) shall be eligible to receive commissions based on completed orders submitted by Partner. For completed orders submitted by Partner, Partner will receive Partner Service and Product commissions.
GreenLink shall pay Service and Product commissions on all Services and Products that are obtained by Partner in accordance with the terms and conditions of the Partner Agreement, of which this Schedule A is a part.
Commission Period. The commission period shall start on the activation date and end at the end of the billing month.
Commission Payment. Reasonable efforts will be made to pay reconciled Service/Hardware Revenue Commissions by the fifth day of the month following the commission period in which the service was “live”. Service must be “live” for one month in order to be eligible for commissions.
Service and Product Recurring Commissions. For recurring monthly revenue, after the first month, the commission shall be paid every month based upon actual revenue received. GreenLink reserves to right to not pay commissions for sales leads, or Services or Products not sold directly by Partner. GreenLink reserves the right to change commission amounts, add new Service or Product categories with different commission rate and eliminate Service or Product categories at its sole discretion, at any time. GreenLink shall provide a 30-day written notice of changes where practicable.
Bonus Programs/Special Incentives. GreenLink reserves the right to offer special incentive programs to promote various Services and business practices and will generally focus on customer satisfaction, service revenue, customer retention, and the promotion of value added Services.
Charge Back Period. In the event of a cancellation, or downgrade of one or more Services or Products within ninety (90) days from the “live” date, a charge back amount (as defined below) shall be deducted from the commission payment made by GreenLink to Partner during any commission period following the month in which the cancellation or downgrade occurred.
Charge Back Amount. In the event of a cancellation or downgrade of one or more Services or Products during the Charge Back Period, Partner’s commission account shall be charged back the amount that was paid for the cancelled or downgraded service.
Reactivations. In general, GreenLink will pay one commission per “live” service. If the commission associated with the service has been charged back as defined above a new commission may be paid on the new service and/or reactivation of service to the party that reinitiates the service. At GreenLink’s sole discretion, Services or Products that are cancelled after the 90 day Charge Back Period that are subsequently reactivated, that result in a net new service to a customer account, may be commissionable, if the new service or reactivation had not been cancelled in the past 12 months. This new service and/or reactivation must meet all the terms and conditions set forth in the Partner Agreement.
Services – These include Service plans listed in this addendum.
“Live” – The time at which Services are deemed by GreenLink to be installed and monthly billing begins. Partner then becomes eligible for Commissions. This does not include upgrades or reactivations.
Cancellation – The process of canceling an existing service. Includes downgrades.