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Exhibit
Item 16-4h
MATERIAL CONTRACTS
Telemarketing Agent Agreement
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TELEMARKETING AGENT AGREEMENT
This Agent Agreement (the "Agreement") is effective immediately when signed
by authorized principals of both PowerSource Corporation, ("Company") and ___
("Agency"). This agreement is executed and effective for one year from the date
signed.
WHEREAS, the Company provides the resale of Electricity ("Services"); and
WHEREAS, the Agency is engaged in the business of providing telemarketing
services; and
WHEREAS, the Company desires the services of Agency as an independent
contractor in marketing such services to its customers on the behalf of the
Company.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT:
1. Right to Sell Electricity Resale Services.
(a) The Company hereby grants Agency the right to sell the Company's Electricity
Resale Services, and Agency hereby agrees to telemarket to and solicit customers
for the benefit of the Company, all pursuant to the terms and conditions of this
Agreement.
(b) Agency shall telemarket and sell Electricity Resale Services at the rates
and on the other terms and conditions prescribed by the Company from time to
time.
(c) All customers and customer orders submitted to the Company by Agency
(including those submitted by Agency through Agency's employees or
representatives) shall be submitted in accordance with Company policies and
procedures as communicated to Agency from time to time, and shall be subject to
acceptance by the Company and, if accepted, such customers shall become
customers of the Company and not of any other party, including Agency (herein
referred to as the "Solicited Customers" and individually as a "Solicited
Customer").
(d) Independent Contractor. In fulfilling its obligations to the Company, under
this Agreement, Agency is acting as an independent contractor of the Company,
and not as a partner, co-venturer, employee, franchisee or representative of the
Company. Agency shall have no right, power or authority to make any
representations or enter into any agreement for, or on behalf of, or incur any
obligation or liability, of, or to otherwise bind the Company. Except as
specifically agreed to by the Company in writing, the Company shall not
reimburse Agency for any expenses incurred by Agency or any fringe benefits in
connection with this Agreement. Agency shall have full responsibility for
withholding taxes, social security withholding, workers compensation,
withholding, unemployment withholding or any similar taxes or charges
attributable to Agency or Agency's employees or representatives.
3. Compensation
(a) Company shall pay Agency a commission for each customer obtained by Agency
pursuant to Exhibit "A". Agency's commissions shall be computed as set forth on
Exhibit "A" attached hereto. Company shall pay commissions based upon services
provided to the customer with the dates and commission structures set forth in
Exhibit "A".
(b) Notwithstanding anything herein to the contrary, no commission shall be due
Agency for any customer that is an existing customer of Company at the time
Service is ordered.
4. Term. The initial term of this Agreement shall commence on the date hereof
and shall continue for one (1) year thereafter unless earlier terminated
pursuant to Section 5 (the "Initial Term"). Thereafter, this Agreement shall be
renewed automatically for successive one year terms (each a "Renewal Term"),
unless earlier terminated pursuant to Section 5.
5. Termination
(a) Agency may terminate this Agreement by giving the Company at least sixty
(60) days prior written notice and the Company may terminate this Agreement by
giving Agency at least thirty (30) days prior written notice.
(b) If either party fails to perform or comply with any provision of this
Agreement, or if Agency fails to perform or comply with any provision of the
Confidentiality, Non-Compete and Non-Solicitation Agreement described in Section
9 of this Agreement, the non-breaching party may, at its option, immediately
terminate this Agreement.
(c) Upon termination, the provisions of this Agreement shall have no further
force or effect; provided, however, that Sections 5, 7, and 9 hereof shall
survive indefinitely.
6. Covenants of Agency.
(a) Agency agrees not to make any false or misleading statements concerning the
Company, including, but not limited to, the Company's business services,
performance, commitments and fees, and Agency understands that any such
statement shall constitute a breach of this Agreement which, in the sole
discretion of the Company, is cause for immediate termination thereof.
(b) Agency agrees to comply with all federal, state, and local laws governing
the sale of services on behalf of the Company, including, but not limited to,
any licenses or permits that may be required in order to perform the activities
or satisfy the duties and obligations under this Agreement.
(c) Agency agrees not to use any written materials to advertise, to solicit
customers or take customer orders for the Company other than those written
materials provided or approved in writing by the Company.
(d) Agency agrees not to engage any other party to perform its activities or
meet its duties or obligations hereunder without the prior written consent of
the Company.
7. Indemnification. Agency shall indemnify, defend and hold harmless the Company
and its officers, directors and affiliates from and against any and all losses,
liabilities, damages, costs, claims and expenses (including reasonable
attorney's fees and disbursements) sustained or incurred by the Company as a
result of (I) any breach of this Agreement by Agency or its employees or
representatives, (ii) any breach of Agency's representations or warranties as
set forth herein, (iii) any act of negligence or willful misconduct by Agency or
its employees or representatives, or (iv) any claim made against the Company by
a third party, including any federal, state or local regulatory agency, or any
entity organized for the purpose of providing consumer protection, which arises
out of the acts or omissions of Agency, whether or not related to Agency's
performance under the terms and conditions of this Agreement. Agency hereby
agrees that the Company shall have the right to offset Agency's indemnification
liability arising out of this Section 7 against any Fees due to Agency.
8. Notices. Any and all notices or other communications required or permitted by
any provision of this Agreement shall be in writing and shall be hand-delivered,
or mailed by certified mail, return receipt requested, and shall be deemed to be
given, dated and received when so hand delivered or, if mailed, 48 hours after
the time of mailing, to the Company, PowerSource Corporation. at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Agency at the address
set forth at the end of this Agreement (or to such other address or addresses as
either party may subsequently designate by notice given hereunder).
9. Confidentiality; Non-Competition; Non-Solicitation.
(a) During the Agency's business association with Company, Company may have
disclosed, and may disclose, to the Agency, or may have given the Agency access
to, customer files and lists, vendor files and lists, trade secrets,
intellectual property, proprietary information, inventions, financial
information and marketing, sales and billing techniques owned or developed by
Company, and other information regarding the business, process or products of
Company which is treated by Company as confidential or which the Agency has
reasonable basis to believe is confidential ("Confidential Information").
(b) The Agency agrees to use Confidential Information solely in connection with
its business association with Company for Company's sole benefit, to maintain
any Confidential Information in the strictest of confidence, and not to use,
disclose or publish any such Confidential Information, directly or indirectly,
in any other manner whatsoever.
9.1 Non-Compete/Non-Solicitation. The Agency agrees that during the period of
the Agency's business association with Company and for a period of one (1) year
thereafter, it will not, without the prior written consent of Company, directly
or indirectly, engage in any of the following actions:
(a) Render services, advice or assistance to any corporation, person,
organization or other entity which develops, supports, designs, produces,
markets, telemarkets, related to the sale of electricity.
(b) Induce, solicit, endeavor to entice or attempt to induce any customer,
supplier, licensee, licensor or other business relation of Company to cease
doing business with Company, or in any way interfere with the relationship
between any such customer, vendor, licensee, licensor or other business relation
and Company.
(c) Induce, solicit, endeavor to entice or attempt to induce any employee of
Company to leave the employ or Company, or to work for, render services or
provide advice to or supply confidential business information or trade secrets
of Company to any third person or entity, or in any way interfere adversely with
the relationship between any such employee and Company.
10. Miscellaneous.
(a) Amendment, Waiver and Third Party Beneficiaries. This Agreement may Not be
amended orally, but only by an instrument in writing signed by the party against
which the enforcement of the change, waiver, discharge or amendment is sought.
No delay or failure on the part of the Company to exercise any power or right
hereunder shall operate as a waiver thereof, nor as an acquiescence in any
default, nor shall any single or partial exercise of any power or right preclude
any other further exercise thereof, or the exercise of any other power or right.
The Company Agency acknowledge and agree that this Agreement is not intended by
the parties to create any third party beneficiary rights.
(b) Partial Invalidity. If any provision or application of this Agreement is
held unlawful or unenforceable in any respect, such illegality or
unenforceability shall not effect other provisions or applications which can be
given effect, and this Agreement shall be construed as if the lawful and
unenforceable provision or application had never been contained hereby or
prescribed hereby.
(c) Governing Law, Submission to Jurisdiction. All questions concerning the
construction, validity and interpretation of this Agreement will be governed by
and construed in accordance with the internal law, and not the law of conflicts
of law, of the State of California. EACH OF THE PARTIES HERETO CONSENTS AND
AGREES TO THE JURISDICTION OF ANY STATE COURT SITTING IN THE CITY OF LOS
ANGELES, STATE OF CALIFORNIA, OR ANY FEDERAL COURT SITTING IN THE CITY OF LOS
ANGELES, STATE OF CALIFORNIA, AND WAIVES ANY OBJECTION BASED ON VENUE OR FORUM
NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN.
(d) Assignment. This Agreement shall be binding upon the Company and Agency
their successors and assigns and shall inure to the benefit of Agency and the
Company and their successors and assigns; provided, however, that Agency shall
not be permitted to assign Agency's rights and obligations under this Agreement
without the prior written consent of the Company.
1. Limitation of Liability and Rights to Offset. The Company's liability to
Agency shall be for prompt payment of commissions due. Neither the Company nor
its affiliates, subsidiaries, suppliers, parent corporation(s), nor any of its
parent affiliates or subsidiaries shall be liable to Agency or any third party
for any special, indirect, incidental, or consequential damages (Including lost
profits) arising from or relating to this agreement. Including without
limitation damages claimed as a result of failure or delay of Company in
approving prospective customers, or damages claimed as a result of any temporary
or permanent failure of the availability or performance of Companies services.
Company's liability for all, whether based in contract, tort (Including without
limitation, strict liability and negligence), warranty or on other legal or
equitable grounds shall be limited solely to money damages and shall not exceed
the amount of commissions due Agency.
(a) Company agrees that Agency shall not be liable to Company for any
incidental, consequential, indirect, or special damages, including lost revenues
or profits, arising from or relating to this Agreement, except in the event that
such damages stem from a willful breach or act of gross negligence by Agency
relating its obligations under this agreement.
(b) Agency agrees to hold harmless and indemnify Company, its subsidiaries,
officers, directors, and assigns from any and all claims of third parties
arising from acts, whether willful, negligent, intentional, or fraudulent, that
may be committed by Agency, its employees, subcontractors, or representatives.
(c) In the event Company is required to pay to any third party any claim for
moneys allegedly owed by Agency, Company shall have a right to offset any such
amount required to be paid by Company against commissions due Agency. In the
event any such claim is made against Company, Company agrees to promptly notify
Agency of such claim so that Agency will have an opportunity to take such
actions as Agency deems proper with respect to such claim.
12. Force Majeure
Company shall not be liable for, and is excused from, any failure to perform or
for delay in the performance of its obligations under this Agreement due to
causes beyond its reasonable control, including without limitation,
interruptions of power or communications services, failure of Company suppliers
or subcontractors, act of nature, governmental actions, fire flood, natural
disaster, or labor disputes.
13.Verification of orders
Agency agrees to follow Compan's approved verification process as specified
by the Company from time to time. Agency agrees and represents that a minimum of
80% of all orders submitted to verification company will successfully pass
through such verification process. In the event that more than 20% of the orders
submitted by Agency do not pass successfully through the verification process,
the Agency agrees that the Company can deduct from the moneys otherwise due
Agency an amount equal to $1 per transaction for all transactions over the 20%
bad orders.
14. Subcontracting
Agency agrees that any subcontracting with individuals or entities will
only be allowed if performed under a contract with Agency that includes the
specific language of Sections 6, 7, 9, 9.1, 13, and 14. A copy of all
subcontractor contracts must be provided to PowerSource immediately upon
execution by Agency. (The compensation portions of these copies of subcontractor
contracts, however, may be "Blacked out") Agency is directly responsible to
ensure subcontractors comply with these covenants and fully understands that
actions of its subcontractors are as if performed by Agency. If it is found that
Agency is subcontracting without these provisions in place, with copies of these
contracts provided to the Company in a timely manner, this contract can be
terminated immediately with no further commissions due Agency.
Company agrees, during the term of this Agreement and for a period of one
(1) year after the Agreement is terminated, to not in any way solicit any
telemarketers with whom TCI or any of its affiliates has a business
relationship. Any proposed contact of this type will only be attempted after
first obtaining written consent of Agency, which may be conditional upon payment
of a fee or commission to Agency.
15. Coordination Between Company and Agency
(a) Start-up Schedule: Agency will test the script, verification process,
and other procedures associated with the conversion of customers to Company
using the Direct Access Service Request process. This test period will last long
enough to verify that all business relationships and electronic transfers
between parties are operating properly.
(b) Targeted Level of Customer Growth :Agency will update Company on an "as
needed" basis, but in no case less than once a week, of the sales completion
progress of its telemarketing activities. Company and Agency will jointly set
monthly target levels of projected customer growth for at least the first full
year of activity under this Agreement.
(c) Targeted Geographic Areas: Company will specify particular geographic
areas in which to concentrate telemarketing efforts. In all cases this will be
within California and within the existing service territories of the three
Utility Distribution Companies (UDCs) that have been restructured under state
law. Company will provide Agency with the Area Codes and three-digit prefixes to
the phone numbers in these targeted areas.
16. Entire Agreement
(a.) Integration. This Agreement contains the full, final and exclusive
statement of the agreement between the parties hereto relating to all matters
set forth herein and supersedes all other oral and written understandings to the
contrary.
(b.) Counterparts. This Agreement may be executed in separate counterparts
each of which will be an original and all of which taken together will
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
Dated: _________________________ Dated: ________________________
PowerSource Corporation
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Authorized Signature Authorized Signature
▇▇▇ ▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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