INDEPENDENT SALES
REPRESENTATION AGREEMENT
Version 1.1,
effective April 25, 2006
THIS AGREEMENT is between prybuy.com.com,
LLC, a Wisconsin limited liability company (“prybuy.com.com”), and the person
or entity who accepts this Agreement as a Representative. In this Agreement, the terms
“Representative,” “you” and “your” mean and refer to the Representative.
BACKGROUND
prybuy.com.com intends to operate an on-line
marketplace for merchant coupons and other discount offerings (collectively,
“Coupons”) through a commercial web site located at www.prybuy.com.com (the
“Site”). The Site is to feature Coupons
and general business information about participating merchants (“Merchants”),
who have been approved by prybuy.com and desire to extend their discounts to
Site visitors. Representative desires to
promote the Site and secure Merchants for participation in the Site in
accordance with and subject to the terms of this Agreement.
AGREEMENT
1. Definitions.
1.1 Payment Account
2. Appointment.
2.1 Sales. prybuy.com appoints Representative as a
non-exclusive independent sales representative to secure Merchants for
participation in the Site as set forth in this Agreement. This appointment is
non-exclusive, in that it does not confer upon Representative an exclusive
right to sell or an exclusive sales territory.
2.2 Recruitment. As a Representative, you are authorized to
recruit other representatives to the prybuy.com organization, each of which
must enter an Independent Sales Representation Agreement with prybuy.com. Once you recruit a representative, you then
become a Lead Representative, and the representatives recruited by you and by
representatives who you have recruited become your Sales Team. Representatives directly recruited by you are
Level 1 Representatives in your Sales Team. Representatives recruited by your
Level 1 Representatives are your Level 2 Representatives, and so on, up to your
Level 8 Representatives, if applicable.
prybuy.com will recognize you as a Lead Representative based solely on the
identification of the recruiting Representative on the representative
applications of your sales team.
2.3 Representative Fee. To remain in good standing as a
Representative, you must pay a Representative fee of $10.00 per month, due on
the first business day of each calendar month. Representative hereby
authorizes prybuy.com to charge the
Representative fee to the Representative’s Payment Account on each due date
during the term of this Agreement.
2.4 prybuy.com
Policies. Representative agrees to abide
by any additional policies for representatives, which prybuy.com may, in its
sole discretion, impose on the conduct and practices of representative. Notice of such policies will be provided to
Representative at the Representative’s email address of record.
2.5 Additional Obligations
of Representative. In addition to the
other obligations of Representative under this Agreement, Representative shall
undertake the following at all times:
2.5.1 actively and
aggressively use its best efforts to promote the Site and identify Merchants
for participation in the Site;
2.5.2 attend mandatory
training sessions as may be required by prybuy.com from time to time;
2.5.3 refrain from selling any
other services which compete with prybuy.com or the Site;
2.5.4 conduct business in a
manner which at all times reflects favorably on prybuy.com and the Site and not
engage in any unfair, unlawful or deceptive practices or publish any misleading
or deceptive advertising material;
2.5.5 promptly inform
prybuy.com of any complaint by a customer relating to the Site;
2.5.6 promptly furnish
potential Merchants identified by Representative with all information provided
by prybuy.com for the purpose of informing such Merchants as to the uses of, or
other information concerning, the Site;
2.5.7 maintain at all times
records which accurately reflect the sales activities of Representative to
market the Site to Merchants;
2.5.8 notify prybuy.com of any
change in ownership, personnel, location, credit standing, operation or
management of Representative;
2.5.9 refrain from making any
representations or warranties regarding the Site whatsoever, except for
statements pre-approved by prybuy.com; and
2.5.10 comply with applicable
laws and regulations in each and every jurisdiction in which Representative
markets the Site.
3. Submission and Approval
of Merchants.
3.1 Submission. Representative shall submit Merchant
candidates to prybuy.com for approval, and Representative shall not earn any
commission on any Merchant candidate that is not approved by prybuy.com.
3.2 Approval of
Merchants. Following receipt of the
Merchant information by prybuy.com, prybuy.com will evaluate the information
for each candidate, and such additional information as may be requested by
prybuy.com, and approve or reject the candidate within a reasonable period of
time. Although prybuy.com desires to
approve as many Merchants as are appropriate for participation in the Site,
prybuy.com reserves the right to reject Merchant candidates proposed by
Representative if, in prybuy.com’s sole discretion, prybuy.com determines that
such candidates are inappropriate. Representative acknowledges that prybuy.com
makes no guarantee whatsoever that any Merchant candidate will be accepted by
prybuy.com. For purposes of
illustration, and without limitation, prybuy.com may reject a Merchant
candidate if such candidate:
3.2.1 sells goods or services
which directly compete with or are otherwise incompatible with other Merchants
participating in the Site;
3.2.2 would likely prevent
participation of other Merchants who are deemed more desirable or appropriate
for participation in the Site;
3.2.3 sells goods or services
which are of questionable moral or ethical standards such that the goods or
services may alienate visitors to the Site; or
3.2.4 presents an apparent
risk (whether financial or otherwise) of being unable to fulfill its
obligations under the Merchant Agreement.
3.3 Merchant Agreement. All Merchants candidates must, before
submitting coupons for display on the Site, enter into a Merchant Agreement
with prybuy.com. You state that you are
familiar with terms and conditions of the Merchant Agreement, and you agree
that you will remain current in your knowledge of those terms and conditions as
the Merchant Agreement is revised from time to time.
3.4 No Negotiation of Terms
of Merchant Agreement. Representative
shall have no authority to negotiate the terms of the Merchant Agreement, or to
bind prybuy.com to the Merchant Agreement.
You agree that you will not hold yourself out to Merchant candidates as
having any such authority.
4. Commissions.
4.1 Procurement of
Merchants. Provided Representative is
not in default of this Agreement, or any other agreement with prybuy.com,
prybuy.com shall pay Representative commissions for Merchants that
Representative, or Representative’s Sales Team, has procured for
prybuy.com. prybuy.com will attribute a
Merchant to your Sales Team based on the sales representative identification
number submitted with the Merchants account information through the Site.
4.2 Earning of
Commissions. All commissions earned upon
receipt of payment from the Merchant.
Payments are received when prybuy.com has actually received and verified
the funds from the Merchant.
4.3 Representative
acknowledges that he or she is entitled to no other compensation or payment
from prybuy.com under this Agreement other than the commissions referenced in
this Section.
4.4 Commission
Schedule. Representative shall receive
the commission payments as provided on Schedule A.
4.5 Change in
Commissions. prybuy.com reserves the
right to adjust the rates set forth in this Section should competitive
circumstances dictate, provided that prybuy.com furnishes Representative with
sixty (60) days written notice of the adjustment and allows Representative the
opportunity to terminate this Agreement within thirty (30) day of receipt of
notice if Representative wishes to discontinue its services at the adjusted
rate.
5. Term and Termination.
5.1 Term. This Agreement may
be terminated without cause by prybuy.com upon thirty (30) days written notice
to Representative. This Agreement may be terminated without cause by
Representative immediately upon written notice through the Site to prybuy.com.
5.2 Termination for
Breach. prybuy.com may terminate this
Agreement immediately for any material breach of this Agreement by
Representative, effective upon prybuy.com’s sending notice to Representative at
the e-mail address Representative provides in Representative’s application for
membership, or such other e-mail address as Representative may later provide to
prybuy.com.
5.3 Automatic
Termination. This Agreement shall
terminate automatically without any further action if Representative (i) files
(or has filed against it) any action or proceeding bankruptcy laws, (ii)
becomes insolvent or has a receiver or trustee appointed or makes any
assignment for the benefit of creditors, (iii) is subject to dissolution or
(iv) otherwise assigns or attempts to assign any of Representative’s rights or
duties under this Agreement.
5.4 Payments After
Termination. After termination by
prybuy.com without cause under Section 5.1, Representative shall be entitled to
the following payments:
5.4.1 commissions that have
been earned before termination but not yet paid to Representative; and
5.4.2 commissions on First
Year Subscriptions for Merchants or Merchant candidates that have been
submitted to prybuy.com, but for which payment has not yet been received by
prybuy.com.
5.5 No Other Payments After
Termination. Representative acknowledges
that after termination, Representative shall not be entitled to any refund of
already paid membership fees, and shall not be entitled to payment of any
royalties, other than those payments expressly provided for in Section 5.4.
5.6 Return of Property. Upon
termination or expiration of the Agreement, Representative shall (i) cease all
sales and other activities relating to the Site or prybuy.com; (ii) shall
return to prybuy.com immediately and cease all use of any Confidential
Information, all promotional material, all supplies and all prybuy.com property
furnished to Representative by prybuy.com; and (iii) shall provide to
prybuy.com complete copies of its records maintained pursuant to this
Agreement.
5.7 Additional Remedies. In
addition to the termination rights set forth in this Section 5, prybuy.com
shall be entitled to pursue all rights and remedies available at law or in
equity for any breach of this Agreement, including without limitation, the
right to sue for all damages as a result of the breach, to seek injunctive
relief to prevent or enjoin Representative from continuing such breach or
noncompliance, or to seek specific performance of Representative’s
obligations. Representative shall be
liable to prybuy.com for all costs and expenses (including reasonable attorney
fees’ and disbursements) incurred by prybuy.com in enforcing the terms of this
Agreement.
6. Independent
Contractor/Indemnification
6.1 prybuy.com and
Representative agree that their relationship is that of independent
contractors, not as employer and employee, principal and agent, partners, nor
joint venturers. Representative
acknowledges that prybuy.com has no responsibility to Representative, or to
Representative’s employees if applicable, to provide any benefits to or for
federal and state withholding taxes, social security taxes, worker’s
compensation, unemployment taxes or any other similar coverages or taxes.
6.2 Representative shall
have no right or authority to assume or claim any obligation of any kind,
express or implied, by or on behalf of prybuy.com, or to bind prybuy.com in any
way whatsoever.
6.3 prybuy.com shall have no
responsibility whatsoever for, and Representative shall indemnify, defend and
hold prybuy.com harmless from any and all costs, losses, expenses, liability,
damages or injuries, including reasonable attorney fees, which arise from or
relate to (i) representations made by Representative about the Site,
prybuy.com, or about prybuy.com’s services that are false or misleading ,(ii)
warranties made or offered by Representative that are inconsistent with or
broader than the limited warranty offered by prybuy.com in its Merchant
Agreement, (iii) any act or omission of
Representative, its employees, or agents, (iv) any breach of this
Agreement by Representative, or (v) any violation by Representative of
applicable law.
7. Intellectual Property
and Non-Disclosure of Confidential Information.
7.1 Representative concedes
and recognizes that prybuy.com is the owner of the Site and the System of which
the Site is a part, and of any patent, trademark, trade name, copyright, domain
name and any other intellectual property embodied in the Site and the System
(collectively, “prybuy.com Intellectual Property”). Representative has no right or interest in to
the prybuy.com Intellectual Property, and shall acquire no such right or
interest under this Agreement or through the performance of the
Representative’s duties under this Agreement.
7.2 “prybuy.com Trademarks”
shall mean such trademarks, trade names, service marks, slogans, labels, logos
and other trade identifying symbols, whether or not registered with local,
state or federal authorities used by prybuy.com, in connection with the Site.
7.3 prybuy.com grants
Representative a non-exclusive license to use the prybuy.com Trademarks
exclusively for the promotion and advertisement of the Site and the online
Coupons marketplace connected to the Site, in accordance prybuy.com’s Trademark
usage guidelines as may be provided by prybuy.com from time to time. Representative concedes for all purposes that
the Trademarks, whether or not registered, are valid and are the exclusive
property of prybuy.com, and Representative hereby irrevocably waives, releases
and disclaims any and all right, title and interest in or to the Trademarks
following such termination.
7.4 Representative agrees
not to use any prybuy.com Trademark, or any confusingly similar variation
thereof, in connection with any product or service other than those offered by
prybuy.com. Representative shall not
use, authorize, or permit the use of the Trademarks as part of its trade,
corporate or business name.
Representative will not use any other trademark or service mark
confusingly similar to the prybuy.com Trademarks in proximity to any of the
Trademarks or combine the Trademarks with other marks without prior written
approval of prybuy.com.
7.5 Representative shall,
following the termination of this Agreement, at the request of prybuy.com,
execute any assignment or other instrument relinquishing to prybuy.com any and
all interests and claims of Representative in and to, or relating to, the
prybuy.com Intellectual Property.
7.6 Proprietary Information.
Representative shall not at any time during the term of this Agreement, or at
any time thereafter, disclose any proprietary information (as hereafter
defined) to any individual or entity unless such disclosure has been
specifically authorized in writing by an officer of prybuy.com. For purposes
hereof, the term “proprietary information” shall mean (i) prybuy.com customer
list(s) or any information concerning the transactions of any customers with
prybuy.com, (ii) any information concerning any product or service under
development by or being evaluated by prybuy.com but not yet offered to the
general public, (iii) prybuy.com’s marketing methods or results of any business
plan of prybuy.com, (iv) any information which is generally regarded as
confidential in the business engaged in by prybuy.com, or (v) any other
information determined to be confidential or proprietary by prybuy.com and
which at the time of such determination or thereafter is not in the public
domain or does not enter the public domain without disclosure by
Representative.
7.7 Confidential Records.
Representative shall not at any time during the term of this Agreement, or at
any time thereafter, without the prior approval of prybuy.com, give any
confidential records (as hereafter defined) to any individual or entity or
permit any inspection or copying thereof by any individual or entity other than
an individual or entity who is affiliated with or employed by the
Representative and who has a reasonable need to know the contents of such
confidential records in the ordinary course of business. For purposes hereof,
“confidential records” means all correspondence, memoranda, drawings, flow
charts, manuals, reports, notes, customer lists, electronic or computer
generated media, video tapes, and all other documents of any kind which may be
in Representative’s possession or under its control which contain any
proprietary information as defined above. Upon the termination of this
Agreement, Representative shall immediately surrender to prybuy.com all
prybuy.com confidential records in the possession or under the control of
Representative. The provisions of this Section shall survive termination and
expiration of this Agreement.
8. Non-Competition. During the term of this Agreement and for a
period of one (1) year after its expiration or termination, Representative
shall not either directly or indirectly engage in any business enterprise which
competes with or offers services which are similar to prybuy.com or the
Site. In addition to any other remedies
available to prybuy.com, if Representative breaches this provision,
Representative will be deemed to have forfeited the right to any commissions
otherwise due under this Agreement.
9. Disclaimer of
Representations and Warranties.
prybuy.com MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND
WHATSOEVER, EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CUSTOM OR USAGE IN TRADE) TO
REPRESENTATIVE REGARDING THE SITE, THE SERVICES OF prybuy.com, OR THE POTENTIAL
EARNINGS OF REPRESENTATIVE. prybuy.com
FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE FINANCIAL VIABILITY OR
PROFITABILITY OF REPRESENTATIVE’S INTENDED BUSINESS ACTIVITIES PURSUANT TO THIS
AGREEMENT NOR DOES prybuy.com MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE
FINANCIAL OR TECHNICAL VIABILITY OF THE SITE.
10. Limitation of
Liability. Representative acknowledges
that the commissions payable to Representative is predicated on the
enforceability of the following limitation of liability and that the commission
would be substantially lower if prybuy.com could not limit its liability as
herein provided. ACCORDINGLY, prybuy.com SHALL NOT BE LIABLE TO REPRESENTATIVE
FOR ANY CLAIM, DEMAND OR SUIT, WHETHER BASED IN CONTRACT, WARRANTY, INDEMNITY,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY,
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL
DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE,
LOSS OF BUSINESS OPPORTUNITIES, LOSS OF USE OF REPRESENTATIVE’S PROPERTY, OR
CLAIMS OF REPRESENTATIVE’S CUSTOMERS. THE TOTAL AGGREGATE LIABILITY OF
prybuy.com TO REPRESENTATIVE UNDER THIS AGREEMENT SHALL NOT EXCEED THE
COMMISSIONS EARNED BY REPRESENTATIVE, BUT UNPAID BY prybuy.com.
11. General Provisions.
11.1 Force Majeure. prybuy.com shall not be liable for loss,
damage or delay due to causes beyond prybuy.com’s reasonable control. In the event of any such delay, performance
will be postponed by such length of time as may be reasonably necessary under
the circumstances.
11.2 Notices. All notices to either party may shall be sent
to the email address of record provided by the party or to the party’s physical
address of record. Notice to a physical
address of record shall be personally delivered or sent to by United States
mail, postage prepaid. Notice shall be
deemed sent on the day of emailing, personal delivery, or deposit in the United
States mail. prybuy.com’s physical
address is:
prybuy.com
320 West Grand Avenue, Suite 303
Wisconsin Rapids, WI 54495
11.3 Sale, Assignment or
Other Transfer. This Agreement is
entered into in reliance upon and in consideration of the character,
qualifications and representations of
Representative. Neither this
Agreement nor any of its rights or privileges, shall be assigned, transferred
or divided in any manner by Representative without the prior written approval
of prybuy.com. prybuy.com may freely
assign its rights under this Agreement without the consent of the
Representative.
11.4 Scope of Agreement. This Agreement supersedes and terminates any
and all prior agreements or contracts concerning the subject matter hereof,
whether oral or in writing, which have been entered into between prybuy.com and
the Representative prior to the date hereof.
This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof.
11.5 Amendment. This Agreement may be amended by prybuy.com
upon sixty days written notice, and upon such notice, Representative shall have
thirty days to elect to terminate this Agreement as of the effective date of
the amended Agreement. Such an election
to terminate upon amendment of this Agreement shall be treated as a termination
by prybuy.com other than for a breach.
11.6 Severability &
Headings. If any section, paragraph, sentence, clause or other provision of
this Agreement is held by a court of competent jurisdiction to be illegal, null
and void or unenforceable, such determination shall not affect the remainder of
this Agreement, and such remainder shall remain in full force and effect. The headings and captions used in this
Agreement are for convenience only and shall not be considered part of the
subject matter hereunder or used to interpret or construe any provision hereof.
11.7 Waiver. Any waiver by prybuy.com of any right or
remedy hereunder shall be effective only if it is in writing and signed by
prybuy.com. No delay or omission by prybuy.com to exercise any right or remedy
hereunder, whether on, before, or after the happening of any breach or default,
will impair any such right or remedy or will operate as a waiver thereof or as
a waiver of any such breach or default.
No single or partial exercise by the prybuy.com of any right or remedy
will preclude any other or further exercise thereof, or preclude any other
right or remedy.
11.8 Applicable Law and
Choice of Forum. This Agreement and the
rights and obligations of the parties hereto shall be construed in accordance
with the laws of the State of Wisconsin and the United States, and any
proceedings to enforce this Agreement shall be brought in the state or federal
courts in Dane County, Wisconsin.
By providing my application information,
accepting this Agreement, and proceeding with my application, I acknowledge
that I have read and understand the prybuy.com INDEPENDENT SALES REPRESENTATION
AGREEMENT and that I intend to be bound thereby. I understand and agree that my clicking “I
accept” a the bottom of this page it is equivalent to a manual written
signature.
Schedule A
Commission Schedule
|
Sales
Category |
Selling Representative |
|||
|
|
You |
Level 1 |
Level 2-4 Reps |
Level 5-8 Reps |
|
First Year Subscriptions |
25% |
5% |
1% |
.75% |
|
Bonus for Introductory Offer valid thru 5/15/06 |
8.5% |
1.7% |
.34% |
.25% |
|
Renewal Subscriptions |
12.5% |
2.5% |
.5% |
.37% |
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