DSL Services Agreement
WE’RE DIFFERENT. IN A GOOD WAY
v.1.01 20140414TekSavvy Solutions Inc.800 Richmond StreetChatham
ON N7M5J51.877.779.1575
LEAD GENERATION AGENT AGREEMENT
AA No.:
This Lead Generation Agent Agreement (“Agreement”) is by and
between TekSavvy Solutions Inc., (“TSI”) and [AGENT NAME]
(“Agent”). The corresponding address and contact information of
each party are:
Provider:
(“TSI”):
TEKSAVVY SOLUTIONS INC.
Agent Name:
(“Agent”)
Address
800 Richmond Street Chatham, Ontario, Canada N7M 5J5
Address:
Telephone:
+1 (705) 690-5618
Telephone:
Facsimile:
+1 519 360 1716
Facsimile:
Contact (name and title):
Guy Myre, VP Corporate Affairs
Contact (name and title):
E-mail:
[email protected]
E-mail:
In consideration of the mutual promises and covenants contained
herein, the receipt and sufficiency of which are hereby
acknowledged, TSI and the Agent agree to be bound by the terms and
conditions in this Agreement. This Agreement is to be effective on
the date it is executed by TSI (the “Effective Date”).
1.Appointment as Agent and Agent Obligations.
1.1.Appointment. TSI hereby appoints Agent to generate leads for
the sale by TSI of TSI branded communications services and
equipment as described in Attachment “A” (hereinafter collectively
"Services") to potential prospects identified by Agent
(“Subscribers”). This activity of Agent is hereinafter called “Lead
Generation”.
1.2.Duties of Agent. It is the responsibility of Agent to
review, periodically, the TSI description of Services and
corresponding prices and conditions on the TSI website,
teksavvy.com, in order to ensure Agent presents accurate Service
and pricing information to Subscribers when engaged in Lead
Generation. The Agent involved in the performance of this Agreement
shall also adhere to the policies, procedures, rules, regulations
and directives that TSI establishes for its agents generally or for
Agent specifically, as amended or supplanted from time-to-time
(“TSI Agent Policies”). TSI reserves the right to give Agent notice
of any amendments to the TSI Agent Policies terms by sending a
notice to Agent by email or postal mail. Agent shall also ensure
that any of its employees involved in the performance of this
Agreement on Agent’s behalf shall also adhere to all of the
requirements of this Agreement, including, without limitation, the
TSI Agent Policies. TSI will assume sole responsibility for the
actual sale of all Services to Subscribers and confirmation of all
corresponding orders. Agent will not sell any Services, confirm an
order, hold itself out as selling any Services on behalf of TSI or
otherwise, or assume any responsibility or liability on behalf of
TSI or Subscribers.
2.Agent Qualifications.
2.1. Service Knowledge and Agent Training. Agent shall ensure
that it has, at all times, sufficient knowledge of the Services to
represent them effectively in order to engage in Lead Generation.
Agent must attend, at its own cost, such training in such forms and
at such locations as TSI deems necessary from time-to-time.
2.2.Sales Targets. In order to maintain its status under this
Agreement, Agent must meet the sales targets set out in Attachment
“B” (hereinafter called “Quotas”). A failure by Agent to meet its
Quotas for two consecutive quarters of a calendar year shall
constitute a material breach of a material provision of this
Agreement.
3.Relationships.
3.1. Agent for Authorized Purposes Only; Parties are Independent
Contractors. Agent may only act as TSI’s agent for the purposes
explicitly authorized by this Agreement in Article 1 of the
Agreement. Agent agrees that no other act or omission of Agent
shall be deemed to be within the scope of the limited agency
created by the previous sentence of this Section 3.1. Agent may not
perform its obligations under this Agreement through
subcontractors. The relationship between TSI and Agent is that of
independent contractors, and nothing in this Agreement shall be
construed to constitute the parties as partners, joint venturers,
co-owners or otherwise as participants in a joint or common
undertaking between the parties hereto, and the parties expressly
agree that no such partnership is intended. No person or entity
other than the parties hereto shall have, is deemed to have or
claim any third party, direct or indirect benefits, rights or
claims to this Agreement or the matters described herein.
3.2.Subscribers are TSI customers. Agent agrees that Subscribers
who purchase or lease Services are the end customers of TSI and are
not the end customers of Agent with respect to any such Services.
Agent shall not represent itself to Subscribers as the supplier of
the Services or sell the Services to them directly, either under
TSI’s brand or otherwise. Agent shall always acknowledge to
Subscribers that TSI is the supplier of the Services and that all
Services must be purchased directly from TSI in accordance with
TSI’s normal processes and procedures. Agent agrees that TSI
retains title to all of the Services delivered to Subscribers.
3.3. No Misleading or Deceptive Practices. Agent shall not
employ any deceptive or misleading business practices in the course
of performing its obligations under this Agreement. Agent will
immediately change or discontinue any such business practice
associated with the performance of its obligations under this
Agreement upon written demand by TSI. Agent shall not describe the
Services in any manner that is not accurate.
4.Non-exclusive Appointment.
4.1Other Channels of Distribution. Agent acknowledges that its
appointment under this Agreement is non-exclusive. TSI expressly
reserves the right, in its absolute discretion, to appoint other
agents for lead generation and/or to sell Services through any
additional direct or indirect sales channels it deems appropriate,
including, without limitation, direct sales and other wholesalers,
whether branded as TSI Services or otherwise.
5.Agent Compensation.
5.1Commissions. TSI shall pay to Agent compensation in the form
of commissions in the amounts and for the duration set out in
Attachment "C" (“Commissions”) for Lead Generation in each instance
where the corresponding Lead Generation results in the sale or
lease of Services by TSI to a Subscriber in the ninety (90) day
period following the date that the Lead Generation occurred. Lead
Generation shall be confirmed by Agent to TSI monthly using reports
in the form set out in Attachment “D” for all Lead Generations
initiated by Agent during the immediately preceding month.
5.2. Changes to Compensation Plan. TSI may, in its sole
discretion and upon ninety (90) days’ notice to Agent, modify the
amounts or duration of Commissions or substitute a new compensation
plan on a going forward basis for new Lead Generations following
such notice (“Revised Compensation Plan”). Agent may, within sixty
(60) days’ receipt of such notice terminate this agreement for
convenience, failing which the Revised Compensation Plan shall
apply on a going forward basis to new Lead Generations occurring
immediately following the ninety (90) notice period described in
the first sentence of this Section 5.2 of the Agreement. In such
event, references to Commissions in this Agreement shall thereafter
be read as references to the Revised Compensation Plan.
5.3.Fraudulent Sales. Agent shall not commit any act of
misrepresentation of Lead Generation to earn Commissions or any
other form of compensation. TSI shall have the right to recoup 100%
of Commissions obtained by Agent through fraud at any time, whether
such recoupment occurs before or after the termination of this
Agreement.
5.4. Not an Employment Agreement. Compensation paid to Agent
under this Agreement is not employment income and this Agreement is
not an employment agreement.
5.5. Payment. Payment of Commissions shall be made by TSI to
Agent within thirty (30) days of receipt by TSI of the revenues
from each Subscriber to which are attached the obligation to pay
Commissions. Payments shall be accompanied by reports provided to
Agent by TSI that show the relevant Subscriber details, Services
and payment summary.
5.6Right of Audit. TSI shall have the right to request the
records of Agent and appoint an independent third party to audit
the records of Agent, at any time, upon seventy-two (72) hours’
notice excluding weekends and holidays, to confirm the Lead
Generations claimed by Agent and Agent shall immediately provide
all of the records requested to TSI upon such request. TSI shall
bear the cost of any such audit, unless the results of the Audit
disclose that Agent was overpaid by five (5) percent or more in
excess of the Commissions actually owing for the period audited, in
which case the Agent shall pay for the cost of the Audit.
6.TSI Agent Program.
6.1.Marketing of Services. Agent shall, at its expense, exert
its best commercial efforts to market the Services, and in doing so
shall employ the promotional materials supplied by TSI. Agent and
TSI shall each contribute funding and activities towards the
promotion of Services by Agent in the amounts and according to the
conditions set out in Attachment “E”.
6.2. Advertising and Promotion of Services. Subject to the
provisions of Article 8 of this Agreement, Agent is expected and
encouraged to advertise and promote TSI Services through all
appropriate media including trade show exhibits, catalogues and
direct mailings, space advertising, educational meetings, sales
aids, etc. Marketing initiatives may include the distribution of
TSI-branded swag and other promotional materials pre-approved in
writing, by TSI.
6.3.Removal or Modification of Services. TSI does not represent
that it will continue to sell or lease any particular Service
indefinitely, or for any specific period. TSI specifically reserves
the right to modify any of the specifications or characteristics of
its Services, to remove any Service from the market, and/or to
cease supporting it, irrespective of whether any obligation to pay
Commissions pursuant to Agent under this Agreement would be
eliminated or reduced by any such action on TSI’s part.
7.Agent Service and Support Requirements.
7.1.Agent Service and Technical Support. All technical and other
support of Services sold or leased by TSI to Subscribers following
Lead Generation by Agent to Subscribers shall be provided solely by
TSI in accordance with applicable Service warranties, terms and
conditions.
8.Use of TSI Trademarks.
8.1. Definition. For purposes of this Agreement, “Affiliate”
means an affiliated body corporate as defined in the Canada
Business Corporations Act and, any partnership or other
unincorporated association in which a party or any of its
affiliated bodies corporate (as so defined) has a controlling
interest.
8.2Ownership of Marks and Names. Agent acknowledges the
following: (a) TSI and/or its Affiliates own all right, title and
interest in the TSI name and logotypes; (b) TSI and/or its
Affiliates are the owners of certain other trade-marks and trade
names, whether or not registered, used in connection with the
Services and other wares, services and activities of TSI. The TSI
name and logotypes and all other trade-marks and trade names
referenced in the preceding sentence are hereinafter called “TSI
Marks”. Agent agrees that it will acquire no interest in the TSI
Marks by virtue of this Agreement, Agent’s activities under it, or
any relationship with TSI.
8.3. Announcements, Promotion and Advertising. While this
Agreement is in effect and has not expired or been terminated,
Agent may indicate to the trade and to the public that it is an
authorized Agent of TSI for the sole purposes authorized by this
Agreement. Agent may use the TSI Marks for Lead Generation as
permitted by this Agreement if done so in strict accordance with
the provisions of this Agreement and any other applicable TSI
guidelines. TSI must approve in writing, all materials that use the
TSI Marks in accordance with Section 6.2 or as otherwise permitted
by this Agreement, prior to such use Agent will not adopt or use
any TSI Mark, or any confusing word or symbol, as part of its
company name or allow such marks or names to be used by others.
8.4. Cessation of Use upon Expiry or Termination of Agreement.
Upon the expiry or termination of this Agreement however caused,
Agent shall immediately discontinue any use of the TSI Marks or any
other combination of words, designs, trade-marks or trade names
that would indicate that it is or was an Agent of TSI or that it is
or was affiliated with TSI in any way.
8.5Injunctive Relief. Since a breach of this Article 8 of the
Agreement by either party may cause irreparable harm to the other
party, for which monetary damages may be inadequate, in addition to
other available remedies, the non-breaching party may seek
injunctive relief for any apprehended or actual violation hereof in
addition to any other remedies available at law.
9.Term, Limitations, Termination.
9.1. Initial Term. Subject to the termination provisions of this
Agreement, the initial term of the Agreement is three (3) years
from the Effective Date (“Initial Term”). This Agreement shall,
subject to the termination provisions of this Agreement thereafter
automatically renew each subsequent year for a one-year term (each
a “Renewal Term”), unless it is terminated upon at least thirty
(30) days prior written notice by either party to the other. The
Initial Term and all additional Renewal Terms are hereinafter
called the “Term”.
9.2.Termination for Cause by TSI. TSI reserves the right to
terminate the Agreement for cause on ten (10) days’ prior written
notice to Agent, and upon providing Agent the opportunity to
correct the default or deficiency within this notice period if that
default or deficiency is of a type that is capable of a cure, if
one or more of the following conditions apply: (i) If Agent becomes
insolvent or ceases to carry on business; (ii) If Agent changes
ownership without prior written notification to TSI; (iii) If Agent
utilizes subcontractors for the performance of its obligations
under this Agreement; (iv) If Agent misrepresents the Services; (v)
for any act of misrepresentation of Lead Generation to earn
Commissions or any other form of compensation; or (vi) for any
other material breach of a material provision of this
Agreement.
9.3Termination for Cause by Agent. Agent reserves the right to
terminate the Agreement for cause on ten (10) days’ prior written
notice to TSI, and upon providing TSI the opportunity to correct
the default or deficiency within this notice period if that default
or deficiency is of a type that is capable of a cure, if: (i) TSI
becomes insolvent or ceases to carry on business; or (ii) for any
other material breach of a material provision of this
Agreement.
10.Rights and Obligations after Expiry or Termination.
10.1. Accrued Obligations that Survive Expiry or Termination and
Exceptions. Subject to the provisions of this Agreement (including,
without limitation, Section 10.3), the termination of this
Agreement shall not release either party from any obligation which
has accrued on or prior to the date of termination of the
Agreement.
10.2Non-compete, Non-solicitation and Non-disparagement. Agent
agrees not to market any services that compete directly with the
Services to any Subscribers anywhere in Canada during the Term of
this Agreement and for a period of one year thereafter. Neither TSI
nor Agent shall solicit each other’s employees or contractors
during the Term and for a period of one year thereafter. Subject to
Article 18, TSI and Agent agree that each shall not either during
or after the Term or at any time thereafter, utter, publish,
disclose or convey to any person or entity, any negative or
disparaging comment about the other, or do anything that a
reasonable person would expect to diminish, disparage or constrain
the good will or good reputation of the other. Since a breach of
this Section 10.2 by either party may cause irreparable harm to the
other party, for which monetary damages may be inadequate, in
addition to other available remedies, the non-breaching party may
seek injunctive relief for any apprehended or actual violation
hereof in addition to any other remedies available at law.
10.3Treatment of Commissions on Expiry or Termination. If the
Agreement is terminated for any reason other than due to the
default of Agent, TSI agrees to continue paying Commissions as
required by the Agreement on any Services sold or leased to
Subscribers prior to the date of termination for the balance of the
period that Commissions would be due in the absence of such expiry
or termination. For greater certainty, the quantum, duration and
timing of such Commissions shall be unaffected by the expiry or
termination of the Agreement under these circumstances. In the
event that the Agreement is terminated by TSI for cause (i.e., due
to a default by Agent) pursuant to section 9.2, no additional
Commissions shall be payable by TSI to Agent in respect of any
period that follows the date of termination of the Agreement.
10.4. Agent will cease using and return all TSI training
materials, marketing materials and sales materials to TSI within
five (5) days of notification of termination of the Agreement.
11.Compliance with Laws and Representations of Parties.
11.1.Compliance with Law and Industry Standards of Conduct.
Agent agrees to abide by all applicable legal requirements and
industry standards of conduct, including without limitation, all
requirements imposed by the Canadian Radio-television and
Telecommunications Commission, and to cooperate fully with law
enforcement and national security authorities as permitted or
required by law.
11.2.Representations. Each party hereby represents and warrants
to the other party that:
(a) It has the corporate power and authority to enter into this
Agreement and to perform its obligations under this Agreement;
(b) It has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement;
(c) This Agreement constitutes a valid and binding obligation on
it enforceable against it in accordance with its terms;
(d) Neither the execution nor the delivery of this Agreement by
it, nor compliance with the terms, conditions and provisions
thereof: (i) conflicts with, or will conflict with, or results or
will result in, any breach of, or constitute a material default
under any of the provisions of any agreement or instrument to which
it is a party; or (ii) will result in the contravention of any
applicable law; and
(e) It is conducting its business and operations in compliance
with all material applicable laws, rules, and regulations.
12.Terms and Conditions for Services.
12.1.Terms and Conditions for Services. Other than providing
Service characteristics and prices to Subscribers during the Lead
Generation process, Agent shall refer all subscriber questions
regarding the detailed terms and conditions under which Services
are provided to TSI and shall ensure that Subscribers understand
that all Services must be purchased or leased directly from TSI,
are provided solely by TSI and that Agent has no authority to sell
or lease such Services or to modify the terms and conditions under
which any Service is provided by TSI.
13.Indemnification.
13.1.Indemnification by Agent. Agent agrees to indemnify,
defend, and hold harmless TSI and its Affiliates, and the
directors, officers, employees and agents of TSI and its
Affiliates, and defend any action brought against same with respect
to any claim, demand, cause of action, debt or liability, including
reasonable attorneys’ fees, to the extent that such action is based
upon a claim that: (i) if true, would constitute a breach of any of
Agent’s representations, warranties, or agreements hereunder; (ii)
arises out of the negligence or willful misconduct of Agent; (iii)
Agent attempts to modify a warranty or other commitment or
representation regarding Services or TSI; or (iv) is brought by any
Subscriber or otherwise against TSI in connection with Lead
Generation or other matters related to this Agreement.
13.2.Notice. In claiming any indemnification hereunder, TSI
shall promptly provide Agent with written notice of any claim which
TSI believes falls within the scope of Section 13.1 hereof. TSI
may, at its own expense, assist in the defence if it so chooses,
provided that Agent shall control such defence and all negotiations
relative to the settlement of any such claim and further provided
that any settlement intended to bind TSI shall not be final without
TSI’s written consent, which shall not be unreasonably
withheld.
14.Limitation of Liability.
14.1LIABILITY FOR DAMAGES AND CAP. TSI’S TOTAL CUMULATIVE
LIABILITY FOR DAMAGES, EXPENSES, COSTS, LIABILITY, CLAIMS OR LOSSES
(COLLECTIVELY, “DAMAGES”) ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY,
CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY
EVEN IF TSI HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES,
IS LIMITED TO DIRECT, ACTUAL, PROVABLE DAMAGES AND WILL IN NO EVENT
EXCEED AN AMOUNT EQUAL TO THE TOTAL AGGREGATE AMOUNTS PAID BY TSI
TO AGENT UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD
BEFORE THE EVENT GIVING RISE TO THE DAMAGES.
14.2NO LIABILITY FOR CERTAIN DAMAGES. NEITHER PARTY IS LIABLE
FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
(INCLUDING ANY OTHER COMMERCIAL OR ECONOMIC LOSS, OR ANY THIRD
PARTY CLAIM), WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY,
CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE
DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY IN
RESPECT OF AGENT’S INDEMNIFICATION OBLIGATION SET FORTH IN SECTION
13.1 AND SHALL NOT APPLY IN RESPECT OF BREACH BY A PARTY OF ITS
CONFIDENTIALITY OBLIGATIONS. tsi IS NOT LIABLE FOR, AND AGENT SHALL
BE LIABLE FOR: (1) THE FAILURE BY AGENT TO PERFORM ITS OBLIGATIONS
UNDER THIS AGREEMENT; OR (2) CLAIMS AGAINST TSI BY SUBSCRIBERS IN
CONNECTION WITH THIS AGREEMENT.
15.Intellectual Property Rights.
15.1.Proprietary Right of TSI. Title to, ownership of, and all
intellectual property rights in, any facilities, equipment,
software, systems, processes and documentation used to provide the
Services (“Service Components”) shall belong and remain with TSI,
or its suppliers and licensors. Unless expressly stated elsewhere
in this Agreement, this Agreement does not grant to Agent any
intellectual property or other rights or licenses in or to any
Service Components.
15.2Proprietary Rights of Parties. TSI shall have sole
responsibility for interacting with all Subscribers in all matters
pertaining to the Services following Lead Generation. TSI’s sole
responsibility shall include fulfillment of accepted service
orders, service installation, operation and termination, dispute
handling and resolution, technical support and billing and
collection matters. Agent shall incur no obligation, nor shall it
be deemed to have any obligation or any right, to interact with any
Subscribers for any reason or purpose once service orders have been
placed by Subscribers. Since a breach of this Section 15.2 of the
Agreement by either party may cause irreparable harm to the other
party for which monetary damages may be inadequate, the
non-breaching party may seek injunctive relief for any apprehended
or actual violation hereof in addition to any other remedies
available at law.
16.Confidential Information.
16.1Definitions. “Confidential Information" means any data,
documentation or other information of a proprietary or confidential
nature of a party (“Disclosing Party”), or its affiliates, or which
is treated as confidential by a party or its Affiliates, whether or
not identified as being confidential or proprietary, which is
disclosed or made available to the other party in connection with
the negotiation, preparation or performance of this Agreement
(“Receiving Party”). All non-public information regarding the
design, installation, delivery or implementation of the Services,
including non-public pricing information, service levels and
network design specifications and all information regarding
Subscribers shall constitute Confidential Information of
TSI. Confidential Information excludes Agent’s name, address
and listed telephone number and any data, documentation or other
information which is: (i) is in the public domain at the time of
disclosure; (ii) becomes publicly available through no fault of the
Receiving Party; (iii) is known to the Receiving Party prior to
receipt thereof from the Disclosing Party, free of any
confidentiality obligation; or (iv) is available to the Receiving
Party on a non-confidential basis from a source other than the
Disclosing Party, if that source or its source is not in breach of
any obligations of confidentiality to the Disclosing Party.
16.2Ownership and Protection of Confidential Information.
Confidential Information shall remain the property of the
Disclosing Party. The Receiving Party shall use commercially
reasonable efforts to protect the confidentiality of all
Confidential Information, using at least the same standard of care
as it uses to protect its own Confidential Information, but in any
event, a reasonable standard of care. Neither party shall at any
time, without the prior written consent of the other party,
disclose or use (except as expressly permitted by, or required to
achieve the purposes of, this Agreement) the Confidential
Information of the other party. Each party shall allow the
disclosure of such information within its own organization only on
a need-to-know basis and only to individuals who have agreed to
maintain the confidentiality of such Confidential Information. If
the recipient reproduces any part of such information for permitted
use within its own organization, the recipient shall indicate the
Disclosing Party's proprietary interest in all such reproductions.
Notwithstanding the foregoing, the parties further agree that the
Receiving Party may disclose Confidential Information to its or its
Affiliates’ employees, contractors, directors, officers,
representatives, or advisors to whom such disclosure is necessary
for the purposes authorized herein. The Disclosing party shall
remain responsible for any breaches of this Section 16.2 by any of
such employees, contractors, directors, officers, representatives,
or advisors. The obligation to keep Confidential Information
confidential shall survive termination or expiration of this
Agreement, however caused, for a period of five (5) years. A party
may disclose Confidential Information if required by a governmental
agency, by operations of law, or if necessary in any proceeding to
establish rights or obligations under this Agreement, provided that
the party required to make the disclosure gives the other party
reasonable prior written notice sufficient to permit that other
party an opportunity to contest such disclosure. Notwithstanding
the foregoing, Agent consents to TSI disclosing Agent information
to the CRTC for regulatory purposes. Since a breach of this Section
16.2 of the Agreement by either party may cause irreparable harm to
the other party for which monetary damages may be inadequate, in
addition to other available remedies, the non-breaching party may
seek injunctive relief for any apprehended or actual violation
hereof in addition to any other remedies available at law.
16.3Consent to Receipt of Commercial Electronic Messages. Agent
agrees to receive commercial electronic messages from TSI, its
Affiliates and marketing partners.
17.Notices.
17.1Notice Provisions. All notices necessary under this
Agreement shall be given in writing, and either delivered
personally, by mail postage-prepaid and return receipt requested,
or sent by a courier that records delivery information, by fax or
by e-mail addressed using the contact information set out on the
first page of this Agreement or addressed using such other contact
information as one party advises the other by way of a written
notice provided in accordance with this Section 17.1. In the case
of notices to TSI, copies of such notices shall also be sent to:
Tacit Law c/o Christian S. Tacit, Barrister & Solicitor, 70
Belleview Drive, Kanata, Ontario, Canada K2L 1W3; Fax: +1 613 599
5345; Email: [email protected]. Notices, if personally delivered,
will be deemed to have been received the same day, or if sent by
express courier, will be deemed to have been received upon
delivery, as indicated in the express courier’s record of delivery.
Notices delivered by facsimile shall be considered to have been
received upon the sender obtaining a bona fide confirmation of such
delivery. Notices delivered by e-mail shall include the following,
and shall only be effective if the recipient provides by e-mail a
confirmation of delivery and the date of acceptance of the
delivery: (i) sender’s name, address, telephone number, fax
number and e-mail address; (ii) date and time of the transmission;
and (iii) the name and telephone number of a person to contact in
the event of transmission problems. Delivery of notices after 4:00
p.m. at the address being served constitutes delivery the following
day. Notices sent by mail shall be deemed to have been received on
the fifth (5th) day after posting. Neither party shall use the mail
to provide a notice to the other in the event of an actual or
apprehended disruption to the postal service due to a labour
dispute or otherwise.
18.Dispute Resolution.
18.1Efforts to Resolve Disputes Amicably. The parties agree that
they will utilize commercially reasonable efforts to resolve any
dispute that arises relating to the validity, construction,
meaning, performance, effect, breach or termination of this
Agreement or the rights and liabilities of the parties or any other
claim or matter arising out of or connected with this Agreement
whether or not contractual in nature (each, a “Dispute”), promptly
and in an amicable manner by negotiation.
18.2Arbitration. Except as otherwise specifically provided
herein, if, and to the extent that, either party believes that it
is not possible for a Dispute to be resolved amicably, the Dispute
shall, upon the delivery, by either party to the other party, of a
request for arbitration, be referred to and finally determined by
arbitration in accordance with the Arbitration Act, 1991 (Ontario).
The arbitration shall be conducted by a single arbitrator mutually
agreed by the parties, or failing such agreement, either party may
bring an application in the Superior Court of Ontario at Ottawa,
Ontario for the appointment of an arbitrator. The place of
arbitration shall be Ottawa, Ontario, Canada. The language to be
used in the arbitral proceedings shall be English. The Dispute
referred to arbitration shall be decided in accordance with the
laws of Province of Ontario, without reference to its principles of
conflicts of laws.
18.3Exception for Injunctive or other Mandatory Relief.
Notwithstanding anything else in this Article 18 of this Agreement,
either party may apply to a court of competent jurisdiction in
Ottawa, Ontario, Canada at any time in order to seek injunctive or
other mandatory relief in order to prevent, mitigate or stop the
occurrence of any irreparable harm.
19.Insurance.
19.1Insurance Requirements. While this Agreement is in effect
and has not expired or been terminated, Agent shall maintain
commercial general liability insurance in an amount not less than
$1 million per occurrence. The purpose of such insurance is to
cover Agent’s obligations under this Agreement and any related
potential sources of claims and liability. Agent shall provide
evidence of this insurance to TSI if requested.
20.Miscellaneous Provisions.
20.1Assignment; Binding Agreement. Agent may not assign or
transfer any of its rights or obligations under this Agreement
without the express, prior written consent of TSI which may be
withheld. TSI may assign this Agreement at any time. This Agreement
is binding on each parties successors and permitted assignees.
20.2Entire Agreement. This Agreement contains the entire
agreement between the parties. No promise, representation,
warranty, or covenant not included in this Agreement has been or is
relied upon by either party. Any prior agreements, negotiations,
correspondence, or understandings related to the subject matter of
this Agreement shall be deemed to be merged in this Agreement and
shall be of no further force or effect. Each party has relied upon
such party's own examination of the full Agreement and the
provisions thereof, and the representations and covenants expressly
contained in this Agreement itself. The failure or refusal of
either party to inspect the Agreement or other documents, or to
obtain legal advice or other advice relevant to this transaction,
constitutes a waiver of any objection, contention, or claim that
might have been based upon such reading, inspection, or advice. No
modification addendum or amendment of this Agreement shall be of
any force or effect unless in writing executed by both parties.
20.3Interpretation. Unless otherwise provided, all terms shall
have the meaning given to them in the ordinary English usage and as
customarily used. Words in any gender shall include both genders.
Whenever the context requires, the singular shall include the
plural, the plural shall include the singular, and the whole shall
include any part thereof. The headings in this Agreement shall not
affect the interpretation of any provision of this Agreement. The
words “including” and “includes” mean “including without
limitation” and “includes without limitation”. Unless explicitly
indicated otherwise, a reference to an “Article” and “Section”,
refers to an article or section of the document forming part of
this Agreement in which the reference occurs.
20.4Invalidity & Severability. If any part of this Agreement
is void, prohibited or unenforceable, this Agreement shall be
construed as if such part had never been part of this Agreement;
and the remaining provisions hereof shall remain in full force and
effect and shall not be affected by the void, prohibited, or
unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such void, prohibited,
or unenforceable provision, there shall be added automatically as
part of this Agreement a provision as similar in its terms to such
void, prohibited, or unenforceable provision as may be possible and
be legal, valid and enforceable.
20.5Headings. The Article, Section and other headings contained
in this Agreement are for purposes of reference only and shall not
limit, expand, or otherwise affect the construction of any of the
provisions of this Agreement.
20.6Counterparts; Facsimile or Electronic Delivery. This
Agreement and any amendment thereto may be executed in any number
of counterparts, each of which when executed and delivered shall be
deemed to be an original, and all of which shall together
constitute one and the same instrument. The transmittal of
signatures or of signed copies of this Agreement, any amendment
thereto and notices required or permitted to be given hereunder by
fax or email hereby constitutes good and valid execution and
delivery of such document and are legally binding on both TSI and
Agent.
20.7No Waiver. The failure of Agent or TSI to exercise any right
under this Agreement, or to insist upon strict or full performance
of the obligations under this Agreement, shall not constitute a
waiver or relinquishment of any provision of this Agreement. In
order to be binding upon a party, any such waiver must be expressed
and in writing signed by that party. The rights of the parties
under this Agreement are cumulative and not alternative.
20.8Authorized Execution. The individuals executing the
Agreement each represents and warrants: (1) that he or she is
authorized to execute this Agreement for and on behalf of the party
for whom he or she is signing; (2) that such party shall be bound
in all respects hereby; and (3) that such execution presents no
conflict with any other agreement of such party.
20.9Survival. All terms and provisions of this Agreement, which
should by their nature survive the termination of this Agreement,
shall so survive.
20.10Force Majeure. Each party acknowledges and agrees that the
other party shall not be in breach of this Agreement if that other
party is unable to fulfill its obligations under this Agreement, so
long as such inability is the consequence of matters that are
properly classified as “force majeure” or otherwise beyond that
other party’s reasonable control. The term “force majeure” shall
have the meaning normally afforded to that term in the legal
context and shall include, but not be limited to, “acts of God”,
natural disasters, terrorism, war, strikes and labor disputes,
third-party breaches (including failure of third party vendors and
providers to provide contracted for services and products),
defaults, or failures not within the reasonable control of a
party.
20.11Choice of Law/Venue. The parties agree that the substantive
laws of the Province of Ontario, without reference to its
principles of conflicts of laws, will be applied to govern,
construe and enforce all of the rights and duties of the parties
arising from or relating in any way to the subject matter of this
Agreement. To the extent not explicitly excluded by the alternate
dispute resolution requirements of Article 18, TSI and Agent each
consent to the exclusive personal jurisdiction of and venue in a
court located in Ottawa, Ontario for any suits or causes of action
connected in any way, directly or indirectly, to the subject matter
of this Agreement. Any cause of action or claim Agent may have with
respect to this Agreement must be commenced within two (2) years
after the claim or cause of action arises or such claim or cause of
action is barred.
20.12Language. The parties hereto have requested that this
Agreement and all correspondence and all documentation relating to
this Agreement, be written in the English language. Les parties aux
présentes ont exigé que la présente entente, de même que toute la
correspondance et la documentation relative à cette entente, soient
rédigées en langue anglaise.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date below:
TEKSAVVY SOLUTIONS INC.
[AGENT NAME]
Signature: Signature:
Name: Marc GaudraultName:
Title: CEOTitle:
Date: Date:
ATTACHMENT “A”SERVICES
This attachment sets out the TSI branded communications services
and equipment that are available for Lead Generation activities by
Agent. In accordance with section 6.3 of the Agreement, TSI
reserves the right to add, remove or modify the services that are
listed herein.
Certain TSI communications services are identified by the name
of the carriers that provide TSI with the corresponding last-mile
access. These carriers include Bell Aliant, Regional
Communications, Limited Partnership (“Aliant”), Bell Canada
(“Bell”), Cogeco Cable Inc. (“Cogeco”), Rogers Communications
Partnership (“Rogers”), Shaw Cablesystems G.P. (“Shaw”), Telus
Communications Company (“Telus”) and Videotron G.P. (“Videotron”).
Bell Aliant and Bell Canada (collectively, “Bell”) both operate in
Ontario and Quebec, and Bell Aliant operates in the Atlantic
Provinces.
Residential Internet
British Columbia
Cable (Shaw)Cable 1 Cable 7.5 Cable 10 Cable 25 Cable 50 Cable
100
DSL (Telus)High Speed DSL 6 - BCHigh Speed DSL 15 - BC High
Speed DSL 25 – BC
Alberta
Cable (Shaw)Cable 1 Cable 7.5 Cable 10 Cable 25 Cable 50 Cable
100
DSL (Telus)High Speed DSL 6 - BCHigh Speed DSL 15 - BC High
Speed DSL 25 – BC
Ontario
DSL (Bell)High Speed DSL 6 High Speed DSL 7 High Speed DSL
10High Speed DSL 15 High Speed DSL 15/10 High Speed DSL 25 High
Speed DSL 50
Cable (Cogeco)Cable 6Cable 10Cable 20Cable 30Cable 60
Cable (Rogers)Cable 6Cable 25Cable 35Cable 45Cable 150
Quebec
DSL (Bell)High Speed DSL 6 High Speed DSL 7 High Speed DSL
10High Speed DSL 15 High Speed DSL 15/10 High Speed DSL 25 High
Speed DSL 50
Cable (Videotron)Cable 5 Cable 10 Cable 15 Cable 20 Cable 30
Cable 60 Cable 120
Newfoundland and Labrador, Nova Scotia, New Brunswick, Prince
Edward Island
DSL (Bell Aliant)High Speed Lite DSL 2 - NSHigh Speed DSL 7 -
NSHigh Speed DSL 15 – NS
Business Internet
British Columbia
DSL (Telus)High Speed DSL 6 (BC)High Speed DSL 15 (BC)
Alberta
DSL (Telus Last Mile)High Speed DSL 6 (BC)High Speed DSL 15
(BC)
Ontario
DSL (Bell Last Mile)High Speed DSL 6High Speed DSL 10High Speed
DSL 10 PlusHigh Speed DSL 16High Speed DSL 16 PlusHigh Speed DSL
25
Quebec
DSL (Bell)High Speed DSL 6High Speed DSL 10High Speed DSL 10
PlusHigh Speed DSL 16High Speed DSL 16 PlusHigh Speed DSL 25
Newfoundland and Labrador, Nova Scotia, New Brunswick, Prince
Edward Island
DSL (Bell Aliant)High Speed DSL 2 Lite (NB)High Speed DSL 7
(NB)
Residential Phone (VoIP)
Ontario
TeksavvyTekTalk BasicTekTalk PremiumTekTalk Unlimited
Quebec
TeksavvyTekTalk BasicTekTalk PremiumTekTalk Unlimited
Hardware
Teksavvy SuppliedZyXEL P-660R ADSL2+ GatewayZyXel VSG 1432 VDSL2
GatewaySmartRG SR505N VDSL2 ModemThomson DCM475 DOCSIS 3
ModemThomson DCM476 DOCSIS 3 Modem Grandstream HT-502 Analog
Telephone Adapter
ATTACHMENT “B”QUOTAS
The Quotas applicable to the Agent under this Agreement are as
follows:
During the first year of the Term, Agent’s Lead Generations must
result directly in the sale of new Services to one hundred (100)
new or existing TSI retail customers. Thereafter, in each year of
the Term, such sales must increase by fifteen percent (15%) over
the immediately preceding year.
ATTACHMENT “C”COMMISSIONS
Applicable Commissions for services and hardware are set out in
the table below.
Commissions listed for services are represented as a $rate/month
per TSI Subscriber account resulting from Lead Generation while the
account remains in service and payment of the account is in good
standing.
Commissions listed for hardware are represented as a one time
$rate per hardware item sale resulting from Lead Generation once
the price for the hardware item has been paid by the
Subscriber.
British ColumbiaCable (Shaw)CommissionCable 1
Unlimited$2.00Cable 7.5 Pro$1.00Cable 7.5 Unlimited$1.00Cable 10
Pro$1.00Cable 10 Unlimited$2.00Cable 25 Pro$2.00Cable 25
Unlimited$2.00Cable 50 Pro$2.00Cable 50 Unlimited$2.00Cable 100
Pro$2.00Cable 100 Unlimited$2.00DSL (Telus)CommissionHigh Speed DSL
6 - BC$1.00High Speed DSL 6 - BC Unlimited$2.00High Speed DSL 15 -
BC $1.00High Speed DSL 15 - BC Unlimited$2.00High Speed DSL 25 –
BC$1.00High Speed DSL 25 – BC Unlimited$2.00AlbertaCable
(Shaw)CommissionCable 1 Unlimited$2.00Cable 7.5 Pro$1.00Cable 7.5
Unlimited$1.00Cable 10 Pro$1.00Cable 10 Unlimited$2.00Cable 25
Pro$2.00Cable 25 Unlimited$2.00Cable 50 Pro$2.00Cable 50
Unlimited$2.00Cable 100 Pro$2.00Cable 100 Unlimited$2.00DSL
(Telus)CommissionHigh Speed DSL 6 - AB$1.00High Speed DSL 6 - AB
Unlimited$2.00High Speed DSL 15 - AB$1.00High Speed DSL 15 - AB
Unlimited$2.00High Speed DSL 25 – AB$1.00High Speed DSL 25 – AB
Unlimited$2.00OntarioDSL (Bell)CommissionHigh Speed DSL 6
Lite$1.00High Speed DSL 6 Pro$2.00High Speed DSL 6
Unlimited$2.00High Speed DSL 7 Lite$1.00High Speed DSL 7
Pro$1.00High Speed DSL 7 Unlimited$2.00High Speed DSL 10
Pro$1.00High Speed DSL 10 Unlimited$2.00High Speed DSL 15
Pro$1.00High Speed DSL 15 Unlimited$2.00High Speed DSL 15/10
Pro$1.00High Speed DSL 15/10 $2.00High Speed DSL 25 Pro$1.00High
Speed DSL 25 Unlimited$2.00High Speed DSL 50 Pro$1.00High Speed DSL
50 Unlimited$1.00Cable (Cogeco)CommissionCable 6 Lite$1.00Cable 6
Pro$1.00Cable 6 Unlimited$2.00Cable 10 Lite$1.00Cable 10
Pro$1.00Cable 10 Unlimited$2.00Cable 20 Lite$1.00Cable 20
Pro$1.00Cable 20 Unlimited$2.00Cable 30 Lite$1.00Cable 30
Pro$1.00Cable 30 Unlimited$2.00Cable 60 Lite$1.00Cable 60
Pro$1.00Cable 60 Unlimited$2.00Cable (Rogers)CommissionCable 6
Lite$1.00Cable 6 Pro$2.00Cable 6 Unlimited$2.00Cable 25
Pro$2.00Cable 25 Unlimited$2.00Cable 35 Pro$2.00Cable 35
Unlimited$2.00Cable 45 Pro$2.00Cable 45 Unlimited$2.00Cable 150
Pro$2.00Cable 150 Unlimited$2.00QuebecDSL (Bell)CommissionHigh
Speed DSL 6 Lite$1.00High Speed DSL 6 Pro$2.00High Speed DSL 6
Unlimited$2.00High Speed DSL 7 Lite$1.00High Speed DSL 7
Pro$1.00High Speed DSL 7 Unlimited$2.00High Speed DSL 10
Pro$1.00High Speed DSL 10 Unlimited$2.00High Speed DSL 15
Pro$1.00High Speed DSL 15 Unlimited$2.00High Speed DSL 15/10
Pro$1.00High Speed DSL 15/10 $2.00High Speed DSL 25 Pro$1.00High
Speed DSL 25 Unlimited$2.00High Speed DSL 50 Pro$2.00High Speed DSL
50 Unlimited$2.00Cable (Videotron)CommissionCable 5 Lite$1.00Cable
5 Pro$1.00Cable 5 Unlimited$1.00Cable 10 Lite$1.00Cable 10
Pro$1.00Cable 10 Unlimited$1.00Cable 15 Lite$1.00Cable 15
Pro$1.00Cable 15 Unlimited$1.00Cable 20 Lite$1.00Cable 20
Pro$1.00Cable 20 Unlimited$2.00Cable 30 Lite$2.00Cable 30
Pro$2.00Cable 30 Unlimited$2.00Cable 60 Lite$1.00Cable 60
Pro$2.00Cable 60 Unlimited$2.00Cable 120 Lite$2.00Cable 120
Pro$2.00Cable 120 Unlimited$2.00Newfoundland and Labrador, Nova
Scotia, New Brunswick, Prince Edward IslandDSL (Bell
Aliant)CommissionHigh Speed Lite DSL 2$0.50High Speed DSL
7$1.25High Speed DSL 15$0.00Business InternetBritish ColumbiaDSL
(Telus)CommissionHigh Speed DSL 6 (BC)$6.00High Speed DSL 15
(BC)$6.00AlbertaDSL (Telus Last Mile)CommissionHigh Speed DSL 6
(BC)$6.00High Speed DSL 15 (BC)$6.00OntarioDSL (Bell Last
Mile)CommissionHigh Speed DSL 6$6.00High Speed DSL 10$5.00High
Speed DSL 10 Plus$5.00High Speed DSL 16$6.00High Speed DSL 16
Plus$6.00High Speed DSL 25$9.00QuebecDSL (Bell)CommissionHigh Speed
DSL 6$6.00High Speed DSL 10$5.00High Speed DSL 10 Plus$5.00High
Speed DSL 16$6.00High Speed DSL 16 Plus$6.00High Speed DSL
25$9.00Newfoundland and Labrador, Nova Scotia, New Brunswick,
Prince Edward IslandDSL (Bell Aliant)CommissionHigh Speed DSL 2
Lite$6.00High Speed DSL 7$6.00Residential Phone
(VoIP)OntarioTeksavvyCommissionTekTalk Basic$1.00TekTalk
Premium$2.00TekTalk Unlimited$2.00QuebecTeksavvyCommissionTekTalk
Basic$1.00TekTalk Premium$2.00TekTalk
Unlimited$2.00HardwareTeksavvy SuppliedCommissionZyXEL P-660R
ADSL2+ Gateway$5.00ZyXel VSG 1432 VDSL2 Gateway$5.00SmartRG SR505N
VDSL2 Modem$5.00Thomson DCM475 DOCSIS 3 Modem$5.00Thomson DCM476
DOCSIS 3 Modem $5.00Grandstream HT-502 Analog Telephone
Adapter$5.00
ATTACHMENT “D”FORM OF LEAD GENERATION REPORTS
AgentMonthNoAgent Sales PersonSubscriber Contact
Information1NameAddressStreet Name / No.DateCityProvincePostal
CodeTelephone Number
ATTACHMENT “E”MARKETING CONTRIBUTIONS BY TSI AND AGENT
After the first year of the Term, TSI shall, during the balance
of the Term, by the end of every calendar month, pay Agent a
monthly marketing contribution equal to two percent (2%) of the
retail revenues received by TSI (exclusive of taxes) from Services
sold by TSI to Subscribers as a direct results of the Lead
Generation activities of Agent during the same month of the
immediately preceding year (“Marketing Allowance”). Agent
undertakes to use all of the Marketing Allowance received to
promote the TSI services and enhance Agent’s Lead Generation
capabilities and activities, consistent with scope of those
activities as defined in the Agreement. All Marketing Allowance
expenditures shall be pre-approved by TSI, acting reasonably. For
greater certainty, no further Marketing Allowance shall be paid to
Agent once the Agreement is terminated for any reason.
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