PROFESSIONAL SERVICES CONTRACTUAL AGREEMENT
THIS PROFESSIONAL SERVICES CONTRACTUAL AGREEMENT (hereafter Agreement) is made
by and between
Acme Voice Mail, LLC AKA Universal Number (also referred to as "UN") and Independent
Sales Rep Logging on above (also referred to as “ISR”).
FOR CONSIDERATION of the mutual promises and covenants contained in this Agreement,
the UN and ISR agree as follows:
ISR agrees to provide the following services (hereafter also referred
to as Professional Services): Independent Sales and Marketing Services for
COMPENSATION AND PAYMENT
The UN agrees to pay ISR for the Professional Services referenced above
in accordance with the rates and provisions set forth below:
be paid a percentage of all collected funds excluding any Federal, State,
Local, Municipal, Sales, Taxes or surcharges. Said percentage will be
mutually agreed upon.
Based solely on the ISRs efforts to perform and collect
on the sale of UN. Payments
will be made by UN on or before the tenth day of the month encomposing
collected sales as stated above for
ISR will be paid on all
money collected on every account ISR sells for the life of the client
Number. So if a client stays with UN for three years you will
receive a commission check every month for three years as long as UN
receives payment for the services it renders minus any taxes or surcharges.
The commission due must be greater than $25 for a check
to be cut. If the commission for any given month is below
this minimum then commisson will roll-over to the next month until the
commission amout is greater than $25.
EXAMPLE OF PAYMENT
ISR sells customer a $10 Universal Number with $3.99 fax service
on July 1 in Texas with a sales tax rate of 8.25%.
Customer pays first bill on July 10 of $13.99 plus $1.15 sales tax.
On August 10 a commission check of $2.10 ($13.99 * 15%) is sent to
the ISR. If agreed upon commission rate is 15%.
PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION
ISR agrees to hold in trust and confidence any confidential and proprietary
information or data relating to UN business and shall not disseminate or
disclose such confidential information to any individual or entity, except
ISR’s employees performing services hereunder
(who shall be under a duty of confidentiality), and any other individuals
specifically permitted in each instance by the UN.
With respect to any confidential information, the ISR’s
obligations of nondisclosure set forth above shall continue to apply
to such information for as long after this Agreement expires or terminates,
as such information remains confidential.
An item will not be considered confidential information
or a trade secret of the UN if it is:
In the public domain prior to disclosure to ISR or subsequent to such
disclosure but through no fault of ISR; or Obtained from a third party
not subject to a duty of confidentiality.
ISR agrees that any computer programs, software,
documentation, copyrightable work, discoveries, inventions, improvements,
or other deliverables (hereinafter “Work”) developed by ISR
solely, or with others, resulting from the performance of ISR’s
responsibilities and obligations pursuant to this Agreement are the property
of the UN. If for any reason the Work would not be considered a work
made for hire under applicable law, for the consideration included herein,
ISR does hereby sell, assign, and transfer to the UN, its successors
and assigns, the entire right, title and interest in and to the Work,
including but not limited to exclusive rights to reproduce, distribute,
prepare derivative works, display and perform the Work. ISR agrees
to provide whatever assistance is necessary for the UN to preserve its
commercial interest including, but not limited to, the filing of patent
and copyright protection. This provision shall survive expiration and
termination of this Agreement.
The UN may terminate this Agreement, upon ten (10) days written notification,
without penalty to the UN, should the ISR fail to carry out its provisions
or fail to provide services acceptable to the UN. The ISR may terminate
this agreement at any time without any cause or penalty.
REMEDIES UPON DEFAULT
In any case where the ISR fails in whole or in part to substantially
perform its obligations or has delivered nonconforming services, the UN shall
provide a Cure notice. If after notice the ISR continues to be in default,
the UN may terminate this agreement immediately. The UN shall only be obligated
to compensate the ISR for compliant services performed prior to notice
INDEPENDENT ISR STATUS
ISR agrees that the relationship between ISR and UN is that
of an independent contractor for employment tax purposes. ISR shall
be solely responsible for self-employment income or any other taxes relating
to payments under this agreement including those of any employees. ISR
shall be solely responsible for liability, disability and health insurance
Terms and provisions of this Agreement shall be construed in accordance with
the laws of the State of Texas, and any and all litigation or actions commenced
in connection with this Agreement shall be instituted in the appropriate courts
in the State of Texas.
COMPLIANCE WITH LAWS
ISR agrees that during the duration of this Agreement and as a condition
of the UN's duty to perform under the terms of this Agreement, that ISR
will be in compliance with all applicable laws and regulations of the state
and federal government, including, but not limited to, Equal Employment Opportunity
provisions, Occupational Health and Safety Act, records retention, audit
requirements and allowable costs.
RESPONSIBILITY FOR THOSE PERFORMING WORK
The ISR shall at all times enforce strict discipline and good order
among the ISR's employees and shall not employ any unfit person or anyone
not skilled in the task assigned.
Incompetent or incorrigible employees shall be dismissed
from the project by the ISR when so determined by the UN and
such persons shall be prohibited from returning to the project without
the written consent of the UN.
The ISR shall be responsible for the acts and
omissions of all the ISR’s employees and all sub contractors,
their employees, agents and agent’s employees, and all other persons
providing services under agreement with the ISR.
IMMUNITY FROM LIABILITY
Every person who is a party to this Agreement is hereby notified and agrees
that the UN is immune from liability and suit for or from ISR’s
activities involving third parties and arising from this Agreement.
This Agreement may not be assigned or transferred by either party to this Agreement
without the prior written consent of the other party.
To the fullest extent permitted by law, the ISR shall defend, indemnify
and hold harmless the UN, its agents and employees from and against all claims,
damages, losses and expenses, including but not limited to attorneys' fees,
arising out of or resulting from (A) the material non-performance, non-compliance
or breach with the terms and obligations of this Agreement or (B) bodily injury,
sickness, disease, or death, or to injury to or destruction of tangible property,
including the loss of use resulting there from caused in whole or in part by
any negligent act or omission of the ISR or Sub contractors or anyone
directly or indirectly employed by any of them or anyone for whose acts any
of them may be liable, regardless of whether or not is caused in part by a
party indemnified hereunder. Such obligation shall not be construed to negate,
abridge or otherwise reduce any other right or obligation of indemnity, which
would otherwise exist as to any party or person.
In any and all claims against the UN, its agents, successors,
and assigns by any employee of the ISR or its Sub contractors,
anyone directly or indirectly employed by any of them or anyone for whose
acts any of them may be liable, the ISR’s indemnification
obligation shall not be limited in any way by any definition or boundary
on the amount or type of damages, compensation or benefits payable by
or for the ISR or any Sub contractors under worker's compensation,
disability benefits or other employee benefit acts.
The ISR agrees to jointly and severally indemnify
and hold the UN, its agents, successors and assigns, harmless from and
against all liability, loss, damage or expense, including reasonable
attorney’s fees which the UN may incur or sustain by reason of
the failure of the selected ISR to fully perform and comply with
the terms and obligations of the Agreement.
ISR agrees it will not use the name or marks of the UN in any commercial
advertising, or as a business reference, without the expressed written consent
of the UN.
The failure of any party to strictly enforce any rights set forth in this Agreement
shall in no way be construed to be a waiver of such right, nor affect the validity
of this Agreement or any part hereof, or the right of the other party thereafter
to enforce each and every right and provision.
ISR and UN each warrant and represent to each
other that the person executing this Agreement for and on its behalf
has been, and is duly authorized by all necessary and appropriate action
to execute this Agreement.
In the event any one or more of the provisions contained in this agreement
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect
any other provision of this agreement, but this agreement shall be construed
as if such invalid or unenforceable provision had never been contained.
Words and phrases contained herein shall be interpreted and understood according
to the context in which they are used. This writing constitutes the entire
agreement between the parties hereto with respect to the subject matters, hereof;
and no statement, representation or promise with reference to this agreement,
or any purported change in the terms of this agreement, shall be binding upon
either of the parties unless in writing and signed by authorized representatives
HAVING READ AND UNDERSTOOD THIS AGREEMENT, the parties agree to