CERBERUS SENTINEL BUSINESS PARTNER AGREEMENT TERMS
This document details the binding contractual terms of the Cerberus Sentinel Business Partner Program and is included by reference to the Cerberus Business Partner Agreement.
Cerberus Cyber Sentinel Corporation (“CERBERUS SENTINEL”) and the AGENT defined in the Business Partner Agreement are entering into a Business Partnership Agreement referencing these Business Partner Terms which is executed by AGENT and accepted by CERBERUS SENTINEL. Acceptance by CERBERUS SENTINEL will be evidenced by the return of a signed copy of the Business Partner Agreement to AGENT. The Business Partnership Agreement will incorporate and be subject to the terms and conditions of this document named Business Partner Terms. No changes to a Business Partner Agreement shall be made except in writing and executed by authorized representatives of both parties.
RECITALS:
WHEREAS, AGENT desires to engage as a non-exclusive representative of CERBERUS SENTINEL to market the Services described in the Exhibits attached hereto;
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Term. The Agreement shall commence from the Effective Date and remain in effect for a period of three (3) years (the “Initial Term”) unless terminated sooner as provided herein. However, the Agreement will be automatically extended for consecutive and successive terms of (12) months (each a “Renewal Term”) unless written notice of termination is provided by the terminating party to the non-terminating party not less than thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable. The Initial Term and any Renewal Terms are referred to collectively as the “Term.”
2. Appointment as CERBERUS SENTINEL Business Partner (“CERBERUS SENTINELBP”). CERBERUS SENTINEL hereby appoints AGENT as a non-exclusive CERBERUS SENTINELBP to promote and solicit orders (the extent to which shall be determine in AGENT’s sole discretion) for the Services from Individuals or entities (collectively referred to as the “Customer” or “Customers”) within the United States (“Territory”).
AGENT hereby accepts the appointment and agrees to promote and solicit orders for the Services, subject to the terms and conditions of this Agreement and the requirements of the CERBERUS SENTINELBP Program as hereafter defined. AGENT understands and acknowledges that this appointment does not create a contractual or employment relationship that is direct, or implied in law or in fact, between any CERBERUS SENTINEL and AGENT.
AGENT shall conduct its business at its own initiative, responsibility and expense. All employees, agents, contractors, servants, officers, directors, invitees or other persons directly or indirectly furnished by AGENT to perform any and all duties hereunder shall at all times remain subordinate to AGENT. AGENT shall, at all times, remain responsible for compliance with all terms, conditions, and obligations of this Agreement. AGENT shall remain solely responsible for all actions of said employees, agents, contractors, servants, officers, directors, invitees or other persons and will be liable for any breach of this agreement caused by their actions or omissions.
3. Orders. AGENT shall promptly forward all orders that AGENT receives for Services to CERBERUS SENTINEL via electronic delivery, or other authorized method. AGENT shall use forms and documents provided by CERBERUS SENTINEL for such orders and will not modify any form without prior written authorization by CERBERUS SENTINEL. AGENT shall adhere to CERBERUS SENTINEL order entry procedures. Each order solicited by AGENT is subject to acceptance by CERBERUS SENTINEL, and CERBERUS SENTINEL may reject any order, in whole or in part, for any reason before or after acceptance. Upon acceptance by CERBERUS SENTINEL of the order solicited by AGENT, CERBERUS SENTINEL shall issue to the customer the sales order form with the terms and conditions that will govern the sale of the Services.
4. Commissions and Chargeback Policy.
a. Subject to the provisions of this Agreement, CERBERUS SENTINEL shall pay AGENT a sales commission (“Commission”) for all Customers procured by AGENT on behalf of CERBERUS SENTINEL as set forth in the schedules attached hereto and incorporated into this Agreement.
b. Commissions will be paid by the twenty-fifth (25th) calendar day of each month and will be calculated on payments received by CERBERUS SENTINEL from the Customer by the 25th day of the previous month. A commission check will not be issued for any amount less than $50.00. In the event that an AGENT is due an amount less than $50.00, that amount will be held in reserve until such time that the total Commissions due to an AGENT is equal to or greater than $50.00. AGENT will not accept payment of Commissions by a credit card payment or any other type of payment for which a corresponding fee will be charged.
c. CERBERUS SENTINEL will provide a monthly commission statement to AGENT reflecting each commission payment. AGENT is responsible for reviewing the accuracy and completeness of their commission statements. AGENT shall have ninety (90) days from the delivery date of any commission statement to dispute the accuracy and completeness of such statement, and any such statement (or portion thereof) not disputed within such period shall be deemed correct and binding upon AGENT.
d. AGENT will receive Commission for unique or specially priced Services on an individual case basis. CERBERUS SENTINEL will provide advanced notice to AGENT in such instances.
e. AGENT shall not be entitled to any Commission after termination of this Agreement if this Agreement is terminated by CERBERUS SENTINEL due to AGENT’s breach as described in Section 7. Notwithstanding the foregoing, CERBERUS SENTINEL shall continue to pay AGENT full Commissions after termination of this Agreement for all Customers sold and/or procured by AGENT on behalf of CERBERUS SENTINEL for so long as such Customers continue to utilize the Services, continuations thereof, renewals thereof (including but not limited to automatic and month-to-month renewals), substitutions therefor and/or additions thereto. CERBERUS SENTINEL further agrees that Commissions will continue to be paid after termination of this Agreement in accordance with Schedule A on all continuations, renewals (including but not limited to automatic and month-to-month renewals) and replacements of, and additions to, Customer accounts, contracts and/or Services, regardless of whether such Customer accounts, contracts or Services are continued, renewed, replaced or added to by AGENT, by another person acting on behalf of CERBERUS SENTINEL or automatically. No termination of this Agreement for any reason (including but not limited to termination by CERBERUS SENTINEL for cause pursuant to Section 7) shall cancel CERBERUS SENTINEL’s obligation to continue to pay full Commissions to AGENT. CERBERUS SENTINEL understands and acknowledges that its obligations to continue to pay full Commissions set forth in this Section 4(e) are an essential part of this Agreement. In the event of any conflict between the terms of this Section 4(e) and the terms of any attachment, exhibit or schedule hereto (including but not limited Schedule A), the terms of this Section 4 shall govern and control.
f. CERBERUS SENTINEL may not charge back any alleged overpayment of Commission to AGENT more than ninety (90) days after any such overpayment; and if CERBERUS SENTINEL subsequently collects payment from a Customer for whom AGENT has been charged back by CERBERUS SENTINEL, CERBERUS SENTINEL shall pay AGENT Commissions on any such payment minus AGENT’s pro rata portion of any associated collection costs.
5. No Warranties AGENT shall not make any representations as to warranties to any Customer or potential customer other than any applicable warranty published by CERBERUS SENTINEL in sales literature or order forms from time to time.
6. No Partnership or Agency CERBERUS SENTINEL and AGENT each agree and acknowledge that AGENT is acting and will act as an independent contractor, and not as an employee or agent of CERBERUS SENTINEL, in connection with CERBERUS SENTINEL’s performance under this Agreement. Any personnel acting on behalf of AGENT in relation to this Agreement shall at all times be under CERBERUS SENTINEL’s exclusive control and shall not be employees of CERBERUS SENTINEL for any purpose. Except for the authority to engage in the activities described in Section 2 of this Agreement, AGENT agrees that neither AGENT nor personnel of AGENT, if any, shall be an agent of CERBERUS SENTINEL or will represent or hold himself or herself out as having authority to bind CERBERUS SENTINEL or to incur any obligations whatsoever on behalf of CERBERUS SENTINEL. The relationship contemplated by the parties to this Agreement is in no way or event intended to establish a dealership or franchise of any kind.
7. Termination Either party may terminate this Agreement for cause if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice thereof; provided, however, if CERBERUS SENTINEL is the terminating party and the material breach was committed by a sub-agent or other sales representative of AGENT, CERBERUS SENTINEL may not terminate this Agreement if AGENT terminates the ability of the applicable sub-agent or sales representative to market the Services within thirty (30) days of receipt of written notice from CERBERUS SENTINEL detailing same. CERBERUS SENTINEL may terminate this Agreement for cause if AGENT fails to cure such breach upon written thirty (30) days’ notice to AGENT in the event: (a) except as expressly set forth otherwise in this Section 7, AGENT fails to perform or observe any of its other covenants or obligations under this Agreement and such failure continues for more than ten (10) days after CERBERUS SENTINEL has sent written notice of such failure; or (b) AGENT solicits customers of CERBERUS SENTINEL and fails to cease and desist solicitation of the prospective customer upon written notice from CERBERUS SENTINEL; or (c) AGENT fails to use commercially reasonable efforts at all times to give prompt, courteous, and efficient service to customers; or (a) AGENT fails to provide reasonable assistance as requested by CERBERUS SENTINEL in the collection of amounts owed by Customers for Services sold on credit; (b) AGENT knowingly commits any act of fraud or dishonesty or other misrepresentation with respect to CERBERUS SENTINEL or its business or in connection with AGENT’s performance under this Agreement; (c) AGENT breaches its representations, warranties and obligations set forth under Section 11 of this Agreement; or (d) AGENT commits any other act of whatever nature which would or may have the effect of harming the CERBERUS SENTINEL name or its business reputation; or (i) AGENT fails to increase and maintain their commission base compared to the previous year by no less than $2,000.00 in total gross billed monthly revenue within 12 months of the execution of this agreement. This Agreement may be terminated by AGENT if CERBERUS SENTINEL fails to pay Commissions to AGENT on or before the date such payment is due and such failure continues for a period of ten (10) days from delivery of written notice thereof.
8. Indemnification and Limitation of Liability. Each party agrees to defend the other party, indemnify the other party and hold the other party harmless from and against any claims, losses, costs, damages, liabilities, penalties, fines or expenses (including court costs and reasonable fees of attorneys and other professionals) arising out of any negligent act or failure to act or willful misconduct of the party, its employees, agents, contractors, servants, officers, directors or invitees, in connection with or related to the party’s performance under this Agreement, or the breach by the party, its employees, agents, contractors, servants, officers. Directors or invitees, of the party’s representations, warranties and obligations hereunder (except for such losses, costs, liabilities or expenses incurred by the other party which are directly attributable to the gross negligence or willful misconduct of the other party). In no event shall either party be liable to the other party or any third party for special, incidental, indirect, punitive or consequential damages, including without limitation loss of use of capital, lost profits, lost revenues, commissions or compensation, whether or not such damages were foreseeable.
9. Assignment. Neither party shall assign this Agreement without the express prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, either party may assign this Agreement immediately without the prior written notice to or consent of the other party (a) to any entity that controls, is controlled by, or is in common control with the assigning party, (b) to any successor-in-interest to the assigning party, or (c) if necessary to satisfy the rules, regulations, and/or orders of any federal, state, or local governmental agency or body). Notwithstanding the foregoing, AGENT may assign its right to receive Commissions hereunder without the prior written consent of CERBERUS SENTINEL. Either party (“Assignor”) may, without notice to the other party, assign all of its rights and obligations under this Agreement in connection with and in contemplation of any reorganization, bankruptcy, merger, consolidation or sale of all or substantially all of the stock, ownership/membership interests or assets of such party, or any other transaction substantially similar in effect (collectively, a “Change of Control”). This Agreement is binding upon and shall inure to the benefit of the successors and assigns of the Assignor in the event of a Change of Control. Upon a Change of Control, this Agreement will be deemed assigned to and assumed by Assignor’s successor regardless of whether or not such assignment and assumption is formally reduced to writing. In any sale or disposition of all or any portion of the Customer base procured by AGENT hereunder (the “Transferred Customer Base”), CERBERUS SENTINEL shall cause the acquiring party to assume this Agreement as to the Transferred Customer Base, including but not limited to CERBERUS SENTINEL’s obligation to pay Commissions hereunder on the Transferred Customer Base.
10. Confidential Information. The parties hereto acknowledge and agree that the Confidentiality Agreement between the parties is in full force and effect and serves to bind the parties hereto in connection with all Confidential Information acquired or accessed during the term of this Agreement or otherwise, directly or indirectly, as a result of the relationship between CERBERUS SENTINEL and AGENT hereunder. Without limiting the generality of the foregoing, the parties hereby expressly acknowledge and agree that the following constitute Confidential Information: (i) the terms and conditions of this Agreement; and (ii) any user names and passwords assigned to AGENT (including without limitation, its employees, agents, contractors, servants, officers and directors) for access to CERBERUS SENTINEL databases; (iii) All information contained in such CERBERUS SENTINEL databases that is not publicly available, including without limitation product, pricing and network information. Notwithstanding the foregoing, CERBERUS SENTINEL acknowledges that AGENT, in strict accordance with CERBERUS SENTINEL/AGENT Program training, may disclose certain product and pricing information to AGENT’s customers for the sole purpose of promoting the Services to such customers. AGENT shall immediately notify its CERBERUS SENTINEL Independent Sales Manager in the event an employee, agent, contractor, servant, officer or director or other affiliate of AGENT who may have had access to Confidential Information, is no longer affiliated with AGENT; however, such notification shall not affect AGENT’s indemnification or other obligations under the Confidentiality Agreement and this AGENT Agreement.
11. Compliance with Laws. AGENT represents and warrants the following: In connection with all applicable local, county, state and federal laws, ordinances and regulations of any description, including without limitation all laws, ordinances and regulations prohibiting the changing of a customer’s telephone service provider without the customer’s consent (a practice known as “slamming”), AGENT: (i) is currently in compliance with such laws, ordinances and regulations; and (ii) will comply with such laws, ordinances and regulations; and (iii) will not +will immediately remedy any such act or omission or any breach of such laws, ordinances and regulations; and (v) will immediately notify CERBERUS SENTINEL of such act or omission or breach. Notwithstanding AGENT’s notification and remedial obligations under this Section 11, AGENT acknowledges and agrees that, in addition to all other remedies CERBERUS SENTINEL has at law or in equity, CERBERUS SENTINEL shall have the right to terminate this Agreement immediately upon notice in the event of AGENT’s breach of any applicable law, ordinance or regulation or in the event of AGENT’s act or omission which results in non-compliance by CERBERUS SENTINEL with any applicable law, ordinance or regulation.
12. Proprietary Rights. AGENT acknowledges the sole and exclusive ownership and right to exercise control by CERBERUS SENTINEL over the nature, quality and use of their names, logos, trademarks, service marks and copyright rights. Without limiting the generality of the foregoing, AGENT acknowledges and agrees that, with respect to this Agreement or the subject matter contained herein, AGENT will not engage in any: joint advertising; press release or other public communications; web site or internet marketing; electronic mail solicitation or marketing; or direct mail or facsimile transmission or telemarketing campaigns without the prior, written approval of CERBERUS SENTINEL of each such use.
13. No Solicitation, Hire, or Retention. During the term of this Agreement and for a period of twelve (12) months following expiration or termination hereof, AGENT and CERBERUS SENTINEL shall not directly or indirectly: solicit; hire; or otherwise retain or engage any employee of each other’s company, without the prior written consent of the respective company. If AGENT hires or otherwise retains or engages any employee of CERBERUS SENTINEL without prior written consent, AGENT agrees to pay CERBERUS SENTINEL the sum of $50,000.00 within thirty (30) days of the CERBERUS SENTINEL employee being hired, retained, or engaged by AGENT. Furthermore, CERBERUS SENTINEL and AGENT shall not enter into any direct or indirect agreement with the employees of each other’s company without the prior written consent of the respective company. This includes but is not limited to all Agency, Referral, Bonus, Spiff, and Lead agreements which enable an employee to contract directly with the other company. AGENT understands and agrees that CERBERUS SENTINEL may have existing agreements in place with past, current, or future employees of AGENT. In this case, any orders and subsequent commissions due to employee shall be paid as stipulated in Agreement between employee and CERBERUS SENTINEL. CERBERUS SENTINEL understands and agrees that upon execution of this Agreement, CERBERUS SENTINEL will cease to accept orders from any current employees of AGENT unless authorized by employee’s company.
14. Non-Circumvention. Other than as expressly contemplated hereunder, CERBERUS SENTINEL agrees not to circumvent AGENT by soliciting or otherwise doing business with for initial term of original contract: (a) any Customer or prospective Customer who CERBERUS SENTINEL learned of or who AGENT introduced to CERBERUS SENTINEL pursuant to this Agreement; or (b) any sub-agent of AGENT who CERBERUS SENTINEL learned of or who AGENT introduced to CERBERUS SENTINEL pursuant to this Agreement.
15. Changes to Service Offerings or Other Terms of the Agreement. CERBERUS SENTINEL must provide at least thirty (30) days prior written notice to AGENT of any change.
16. Document Requests. Upon AGENT’s reasonable written request, CERBERUS SENTINEL must furnish copies of Customer contracts, documentation of new orders, adds, moves, changes, proposals, etc. to AGENT.
17. No Waiver. No waiver of or failure to enforce any provision of this Agreement shall constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a continuing waiver unless expressly provided. Entire Agreement; Amendment. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous representations, promises, agreements and understandings, whether oral or written, between the parties. This Agreement may not be modified, amended, terminated or waived, in whole or in part, except by a written instrument signed by each of the parties hereto.
18. Entire Agreement; Amendment. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous representations, promises, agreements and understandings, whether oral or written, between the parties. This Agreement may not be modified, amended, terminated or waived, in whole or in part, except by a written instrument signed by each of the parties hereto.
19. Notices. Notices required hereunder shall be in writing and delivered to a party, via nationally recognized overnight courier or certified United States mail, at the address first written above. Notices shall be deemed effective, the earliest of: (1) one business day after deposit with a nationally recognized overnight courier; (2) three business days after deposit in the U.S. mail; or (3) actual receipt.
20. Neutral Construction. The language used in this Agreement shall be deemed to be the language chosen by both of the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against either party.
21. Governing Law. This Agreement and its application and interpretation shall be governed exclusively by its terms and by the laws of the State of Arizona. Jurisdiction and venue of any dispute hereunder shall be in the State or Federal Court located in Maricopa County, Arizona.
22. Litigation/Arbitration Expenses. As a material part of this Agreement, the parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement or of CERBERUS SENTINEL’s or AGENT’s Services shall be determined by confidential, final and binding arbitration, in accordance with the then-existing rules for commercial arbitration of the American Arbitration Association. Disputes, claims, and controversies subject to final and binding arbitration under this Agreement include, without limitation, all those that otherwise could be tried in a court to a judge or jury in the absence of this Agreement. By agreeing to submit all disputes, claims and controversies to binding arbitration, each of the parties expressly waives its rights to have such matters heard or tried in a court before a judge or jury or in any other tribunal, and shall agree to all discovery requests and submit to all depositions. Any award shall be final, binding and conclusive upon the parties, subject only to judicial review provided by statute, and a judgment rendered on the arbitration award may be entered in any state or federal court having jurisdiction thereof. Notwithstanding the foregoing, each party agrees that before undertaking the aforementioned arbitration, they shall submit all disputes, claims or controversies to a mutually agreeable mediator in an attempt to informally resolve said disputes, claims or controversies without the need for arbitration. The prevailing party in such arbitration shall be entitled to and awarded, in addition to any other relief, its documented arbitration expenses to be paid by the other party. If neither party wholly prevails, the party that substantially prevails shall be awarded its documented arbitration expenses.
23. Survivability. All confidentiality and indemnification obligations provided for herein shall survive the termination or expiration of this Agreement.
24. Severability; No Conflict. Each provision of this Agreement shall be considered severable, and if for any reason any provision or provisions of this Agreement are determined to be invalid, such invalidity shall not impair the operation or affect the portions of this Agreement that are valid. In the event of any conflict between the terms and conditions set forth in the body of this Agreement and the provisions contained in any exhibit attached hereto and made a part hereof, the terms and conditions set forth in the body of the Agreement shall control.