Exhibit No. 19
XxxxxxXxxxxx.xxx, Inc.
Form 10-KSB/ 2000
File No. 0-26917
buyersonline Agent Sales Division
Non-Exclusive Sales Agency Agreement
The following terms and conditions will serve as the basis for a
Non-Exclusive Agency Agreement between BuyersOnline, Inc.
(hereafter referred to as the "Company") and____________
(hereafter referred to as "Agent"), located
at________________________:
WHEREAS, the Company is in the business of providing various
products and services; and, Agent desires to act on behalf of the
Company to sell the Company's products and services utilizing e-
commerce and other direct selling strategies; and, the parties
have agreed to cooperate with each other under the terms and
conditions contained below for the mutual benefit of the parties.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the parties agree as follows:
1. Appointment of Agent:
Company hereby appoints Agent as an independent contractor to
market and sell the services and products of the Company.
Services and products may be added or discontinued, at the sole
discretion of the Company. For the purposes of this Agreement,
"Agent" shall include Agent; it's officers, directors,
shareholders, employees, dealers, etc.
2. The Obligations of the Company:
Company will pay Agent Commissions on customer accounts, once per
month, in accordance with the terms designated in Section 11 and
at the rates designated in the Commission Payment Addenda. Unless
this Agreement is terminated for good cause (defined hereafter)
Company's obligation to pay commissions shall continue in
perpetuity for all customers signed as a result of Agent's
marketing efforts, even after the termination of the Agreement,
until such time that all customers choose to terminate their use
of Company's services.
Company will provide all customers signed through Agent, and
accepted by the Company, with complete provisioning, billing,
customer service and collection services.
Company will provide Agent with appropriate sales and marketing
information for any new services that the Company, at its sole
discretion, might offer in the future.
Company will use reasonable efforts to maintain its overall
network quality. The quality of products and services provided
hereunder shall be consistent with telecommunications common
carrier industry standard, government regulations and sound
business practices. The Company makes no other warranties about
the service provided hereunder, express or implied.
Company reserves the right to modify, alter, improve, change or
discontinue any or all of the services and/or products during the
term of this Agreement.
In no event will the Company be liable to Agent for any indirect,
special, incidental or consequential losses or damages, including
without limitation loss of revenue, loss of customers or clients,
loss of goodwill or loss of profits arising, in any manner, from
this Agreement and the performance or non-performance of
obligations hereunder.
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3. The Obligations of Agent:
Agent will use its commercially reasonable best efforts to sell
the Company's products and services to potential customers in
Agent's market. Agent's market is defined as all geographical
areas in which the Company offers service.
Agent agrees to abide by all the terms and conditions herein.
Agent agrees to use its best efforts to locate customers for the
Company and to honestly and diligently perform its obligations
hereunder.
Agent agrees to not create, without prior written Company
approval, any sales presentations or collateral materials
containing Company trademarks without prior written Company
approval, which will not be unreasonably withheld.
In the performing this Agreement, Agent may have access to
private or confidential information relating to the Company or
the Company's customers, including but not limited to pricing,
compensation/commission rates and fees, contract terms, business
plans and strategies, intellectual assets, business processes,
etc. Agent agrees that the confidential information will remain
the exclusive property of the Company; that such material will
not be copied, published or disclosed to others without the
written permission of the Company; that such material will be
used solely in the performance of the Agreement, and will be
returned to the Company upon termination of this Agreement.
Agent's obligation to keep confidential information confidential
shall survive the termination of this Agreement.
Agent understands that at no time during the term of this
Agreement, or for a period of one (1) year after the termination
of the Agreement, and for as long as Agent continues to receive
commission payments from the Company, may Agent knowingly solicit
the telecommunications business, or any business competitive with
Company products and services, of any of the customers of the
Company in Agent's market. In the event that Agent or Agent's
representatives shall become aware that a prospective customer is
already a customer of Company, it shall be the obligation of
Agent or Agent's representatives to immediately cease any and all
contact with that customer with regard to any products or
services that are competitive with Company. Upon notice of any
such violation by its representatives or sub-representatives,
Agent agrees to immediately notify the Company and use its best
efforts to assist the Company in preventing further violations.
Agent's obligation hereunder shall survive the termination of
this Agreement.
Agent agrees that at no time during the term of this Agreement,
or for a period of two (2) years after the termination of this
Agreement, may Agent knowingly solicit, divert, take away or
interfere with, either directly or indirectly, a current Employee
of the Company; interfere with the contractual relation of any
current salesperson or other current Employee of the Company or
hire any current Employee of the Company. This restriction
applies to Agent and any officer, director, employee,
representative, sub-representative, partner, or shareholder of
Agent. Upon notice of any such violation by its representatives
or sub-representatives, Agent agrees to immediately notify
Company and use its best efforts to assist Company in preventing
further violations. Agent's obligation hereunder shall survive
the termination of this Agreement.
4. Agent as an Independent Contractor:
For the purposes of this Agreement, Agent is deemed to be an
independent contractor and that nothing contained herein or any
document executed in connection herewith shall be deemed or
construed by the parties hereto, nor by any third party, as
creating the relationship of employer and employee, partnership,
or joint venture between the parties. The parties hereby declare
and acknowledge that the relationship existing is one of an
Independent Agent.
All sums paid to Agent are gross sums being paid to Agent as an
Agent and not as an employee of the Company. Agent hereby
acknowledges that neither it nor its employees shall have the
right of entitlement in or to any of the unemployment, workers'
compensation, health, pension, retirement or other benefit
programs now or hereafter available to Company employees. Any and
all sums subject to taxation, deductions, withholding and/or
payment under any applicable state, federal or municipal laws or
union or professional guild regulations shall be Independent
Agent's sole responsibility.
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5. Agent's Right to Designate Affiliates:
It is agreed Agent may, at Agent's discretion, designate
Affiliates to sell the Company's services on behalf of Agent. It
is the responsibility of Agent to ensure that each Affiliate has
complete knowledge of and adheres to all mutual covenants and
conditions contained in this Agreement. Furthermore, in the event
Agent does designate Affiliates, it shall be Agent's
responsibility to pay said Affiliates.
6. Indemnification:
Agent agrees to conduct its business in a lawful, ethical, and
moral manner and will exercise reasonable commercial efforts to
operate in compliance with all laws, rules, regulations, orders
and opinions of the Federal Communications Commission, the
Federal Trade Commission, and regulatory and consumer agencies of
the various states; and to hold Company harmless, defend and
indemnify Company and its officers, directors, employees, and
servants from and against any and all claims, damages, losses,
injuries, causes of action, demands and expenses, including
reasonable legal fees and expenses (including costs on appeal),
of whatever kind and nature directly or indirectly arising out of
or on account of or resulting from the Agent's activities, or the
activities of his/her employees, Agents or sub-representatives
which are not required by the express, specific and explicit
written terms of this Agreement, or out of the Agent's failure,
or the failure of his/her employees, Agents or sub-
representatives to comply with the obligations under this
Agreement.
7. Term and Termination:
This Agreement shall continue in full force and effect for a term
of two (2) years from the date hereof and shall continue in full
force and effect for successive periods of one (1) year
thereafter unless terminated as follows:
by either party by the giving of notice in writing by certified
mail return-receipt requested at least thirty (30) days prior to
the expiration of any period;
by Company immediately and with notice to the Agent for cause.
The term "cause" as used in this Agreement shall include but
shall not necessarily be limited to the following conduct by the
Agent:
* false representations, reports or claims made to Company or
to any third party (including end-users) in connection with
this Agreement, the services of Company or Company as a
whole;
* breach of fiduciary duty involving Company's financial
interest, i.e. divulging pricing, compensation plans,
contract terms, and other inside information that Agent may
become privy to;
* actions subversive to Company business processes, methods,
or systems, including but not limited to false or misleading
representations on or interference with customer
applications, third-party verification processes,
commissions, etc.;
* conduct disloyal to Company including conduct which is
disparaging or tends to hold Company or its services up to
ridicule in the marketplace;
failure to perform obligations stated in Section 3;
* negligent or willful violation of any law, rule or
regulation (other than traffic violations or similar
offenses) by its officers or final cease-and-desist order;
* attempts to assign this Agreement or any of Agent's duties
under this Agreement to another party without approval from
Company, which approval shall not be unreasonably withheld;
and
* material breach of any provision of this Agreement.
Agent shall have the right to cure any claim within thirty (30)
days from the date written notice is received. However, if Agent
cannot cure a claim from Company after thirty (30) days, then
this Agreement shall be terminated immediately. The termination
of this Agreement in any manner shall not impair the rights or
obligations of either party which may survive the termination of
this Agreement.
8. Solicitation and Acceptance of Orders:
Agent shall not make any representation regarding the Company's
services and/or products other than those authorized by the
Company. Agent shall sell only the pricing plans approved by
Company and provided to Agent by
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Company. Agent acknowledges that
it shall not be entitled to a commission on the sale of any
service or product not approved by Company.
All orders shall be forwarded to the Company (in a form and
manner mutually agreeable to both parties) for acceptance. No
order shall constitute a binding obligation upon the Company
until it is accepted by the Company, at Company's sole
discretion.
Agent will be assigned an Agent Identification Number ("AIN")
which will become Company's method for identifying Agent's sales.
Agent shall include this number on all orders. Orders will not be
accepted without Agent's assigned Company AIN.
At any time and without prior notice, Company reserves the right
to refuse new requests for service from Agent when, in Company's
sole discretion, Company determines that any of the following
have or may occur:
Company's network capacity becomes over-burdened or constrained;
Company's order provisioning service becomes inoperable; or
Company, or its affiliates, causes a disruption in service or
makes it impossible for Company to carry out its marketing plans.
9. Covenant Not to Compete:
Agent recognizes and agrees that it will receive unique product,
service and customer knowledge from the Company which it did not
previously possess. As consideration for the disclosure of
confidential information now and in the future, together with the
commissions and other compensation provided to Agent, Agent
agrees that during the term of this Agreement, and for a period
of one (1) year after the termination of this Agreement, not to
induce, influence, or suggest to any Company customer referred to
Company by Agent or Agent's representatives that the Services
provided by the Company to customer be changed to another
provider (of products and services competitive to Company). Agent
shall not knowingly permit its representatives or Affiliates to
violate this covenant. Upon notice of any such violation by its
representatives or Agent's Affiliates, Agent agrees to
immediately notify Company and use its best efforts to assist
Company in preventing further violations. In the event a customer
requests to removed from Company-provided services for reasons
related to quality of service, the Agent may notify Company in
writing of such and request permission to remove said customer
from Company services, which permission will not be unreasonably
withheld.
A customer of the Company using the services of the Company is
the sole property of the Company for the purpose of services
provided by Company. Agent agrees not to use any organizational
reports, customer lists, customer profiles, identity of
customer's representatives, customer's needs, pricing, and/or
promotional materials, or any other information to compete with
the Company directly or indirectly with regard to the services
provided by Company. Agent agrees not to reveal, divulge, make
known, sell, exchange, give away, or transfer in any way a list
of subscribers or use any information or divulge any trade
secrets to any third parties, which knowledge was acquired during
the term of this agreement.
10. Channel Conflicts:
In order to avoid conflicts, both parties agree that once any
potential customer has met with a representative of either the
Company or the Agent, the other party shall be obligated to
desist from any and all contact with that potential customer for
a period of two (2) months from the date the potential customer
was contacted by the other party. This restriction only applies
to the solicitation of products and services that are competitive
with Company.
11. Commissions:
Agent shall be paid commissions by the Company in compliance with
the Commission Payment Addendum, attached hereto. Unless this
Agreement is terminated for cause, Agent shall receive the
applicable commission as designated in the Commission Payment
Addenda for as long as the customer retains applicable Company
services. Commissions will be calculated and paid on toll-billed
revenue approximately 30 days after the bills are mailed on
customer accounts that have not been referred for collection. In
the event that a charge-back is levied against Agent,
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the charge-
back will not exceed the amount of commission paid to Agent on
the account(s) for which bills remain unpaid (overpaid
commissions). If for any reason a customer is referred to a third-
party collection agency, Agent will immediately cease earning
commissions for that customer whether or not said collection
agency is successful in securing payment. If Company elects to
reinstate customer subsequent to any collections activities,
commissions to Agent for said customer shall recommence at that
time.
12. Continuation of Agreement Upon Sale or Transfer ("Evergreen"
Clause):
In the event Company is sold to a third party, is merged into or
combined with another company, or sells all or part of its
customer accounts during the term of this Agreement, the terms
and conditions of this Agreement shall remain in full force and
effect and shall inure to the purchaser of said customer accounts
or the company acquiring Company or resulting from the
combination or merger with Company whether or not the liabilities
of Company are excluded from the sale or merger, unless otherwise
terminated in writing with the mutual consent of both Company and
Agent.
13. Legal Formalities:
Both parties hereto agree to comply with all applicable federal,
state and local laws. By signing this Agreement, both parties
acknowledge that they understand that Title 18 of the United
States Code prohibits fraud by wire, including, but not limited
to, illegal use of services such as telephone or telegraph, and
that using such service facilities with intent to commit fraud is
a federal offense.
It is the desire and intent of the parties that the provisions of
this Agreement be enforced to the fullest extent permissible
under the laws of the State of Utah. Accordingly, the terms of
this Agreement are determined to be severable, and if any
particular portion is determined to be invalid or unenforceable,
such determination shall only apply to that portion of this
Agreement, and the balance of this Agreement shall nevertheless
be enforceable to the fullest extent permissible under the laws
and public policies applying thereto.
No breach of this Agreement shall be deemed waived unless
expressly waived in writing by the party charged with such
waiver. The waiver by the Company of a breach of any provision of
this Agreement shall not be construed as a waiver by the Company
of any subsequent breach. No waiver of any breach or violation
hereof shall be implied from failure by the Company to take
action.
Agent agrees that damages cannot reasonably compensate the
Company in the event of a violation of the covenants set forth in
this Agreement, and that it would be difficult to ascertain the
lost profits which would be suffered and that, by reason thereof,
injunctive relief would be essential for the protection of the
Company. Accordingly, Agent xxxxxx agrees that in the event of
any such breach, the Company may seek and obtain such injunctive
relief without proving damages or posting a bond in order to
prevent a continued violation of the terms of this Agreement
Agent, therefore, agrees that the Company may apply for a
temporary restraining order and temporary and permanent
injunctions against the Agent without advance notice to Agent.
The foregoing shall not limit the Company in the pursuit of other
remedies. Agent further agrees that in the event the Company is
compelled to seek legal redress for the breach of Agent's
obligations hereunder, and the Company is successful in obtaining
the injunction and/or damages or otherwise, Agent will
additionally be liable to the Company for all attorney's fees and
costs of the suit.
Neither party will be liable for failure to perform its
obligations hereunder due to causes beyond its control, including
damage to equipment; acts of God; laws or requirements of any
government; or national emergencies.
The provisions of this Agreement shall be binding upon and inure
to the benefit of the Company and its representatives, successors
and/or assigns. Agent shall not have the right to assign this
Agreement to any other party without the express written consent
of the Company. Any modification to this Agreement must be in
writing.
This Agreement shall be governed by and shall be construed and
enforced in accordance with the laws of the State of Utah,
without regard for its conflicts of laws rules. The parties
hereby submit to the exclusive jurisdiction of the courts for the
State of Utah, in and for the County of Salt Lake, and the United
States District Court for the purpose of construing and enforcing
this Agreement.
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In the event of any litigation arising under or related to this
Agreement, the prevailing party shall be entitled to recover all
attorneys fees incurred, including attorneys' fees incurred on
appeal.
This Agreement contains the full understanding of the
parties.
(Agent) (BuyersOnline)
By:___________________________________ By:___________________________
Title:__________________________________ Title:__________________________
Agency:________________________________ Company: BuyersOnline, Inc.
Date Signed:_____________________________ Date Signed:____________________
Checks Payable To:_______________________
SSN/Fed Tax ID:__________________________
Email:___________________________________
Phone:__________________________________
Agent ID:_____________ (Assigned by Company)
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