RECITALS
WHEREAS, Company develops and provides payment processing services and AI-powered dental imaging diagnostic tools for dental practices; and
WHEREAS, Representative desires to serve as an independent sales representative for Company's products and services on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows:
1. APPOINTMENT AND SCOPE OF SERVICES
1.1 Independent Sales Representative. Company hereby appoints Representative as a non-exclusive independent sales representative to market, promote, and generate sales of Company's products and services, including but not limited to: (a) payment processing services for dental practices ("Payments"), and (b) PrognosiX, Company's AI-powered dental imaging diagnostic tool ("PrognosiX," and together with Payments and any other products or services Company may offer, the "Products").
1.2 Territory. Representative's territory shall be limited to the United States. Company may expand Representative's territory to additional regions upon written notice to Representative. Any such expansion shall be documented through a written amendment to this Agreement signed by both parties.
1.3 Sales Activities. Representative shall use commercially reasonable efforts to identify prospective customers, generate leads, arrange sales meetings and presentations, and otherwise actively promote and sell the Products to dental practices and other potential customers. Company shall provide Representative with reasonable initial and ongoing training, product information, and sales enablement materials regarding the Products, and Representative shall use commercially reasonable efforts to complete such training and to become sufficiently knowledgeable about the Products so that, following such training and enablement, Representative is able to effectively describe and, if requested by Company, conduct or facilitate product demonstrations for prospective customers. Representative acknowledges that a sale will only be deemed complete and attributable to Representative upon execution of a binding written agreement between Company and the customer, provided that Representative's contribution to such sale meets the "actively contributes" standard set forth in Section 2.3(a).
1.4 Independent Contractor Status. Representative is an independent contractor and not an employee, partner, joint venturer, or agent of Company. Representative shall have no authority to bind Company to any agreement or obligation, and Representative shall not represent to any third party that Representative has such authority. Representative is responsible for all taxes, insurance, and other obligations related to Representative's status as an independent contractor. Company will not withhold or pay any taxes on Representative's behalf, and Representative will receive an IRS Form 1099 for any commissions earned.
2. COMPENSATION
2.1 Commission Structure. Representative shall earn commissions equal to thirty basis points (0.30%) of Gross Payment Revenue generated from sales of the Products that are directly attributable to Representative's sales efforts (the "Commission"). For clarity, Commissions shall be calculated and paid on all Gross Payment Revenue (including both initial and recurring revenue) actually received by Company from customers acquired through Representative's sales efforts during the term of this Agreement, subject to the perpetual commission provisions in Section 2.5, the termination provisions in Section 2.6, and the exclusions and adjustments set forth in the definition of Gross Payment Revenue and in Section 2.4.
2.2 Definition of Gross Payment Revenue. "Gross Payment Revenue" means the gross amounts actually received by Company from a customer for Products, in each case to the extent such amounts are attributable to customers and transactions for which Representative is entitled to receive Commissions under this Agreement, less only the following: (a) any refunds, credits, chargebacks, or reversals actually made or issued by Company to or on behalf of such customer; (b) any amounts that are not collected by Company due to uncollectibility, fraud, or bad debt and that are written off in Company's ordinary course of business; and (c) any amounts that the parties expressly agree in writing shall be excluded from the Commission base (including, by way of example, taxes, duties, or other governmental charges that are required to be collected and remitted by Company and that do not constitute retained revenue of Company). Company shall provide Representative with a detailed explanation of any deductions from gross amounts actually received within the monthly commission statement required under Section 2.4(c). Company may provide additional itemization details at its discretion to assist Representative in understanding the calculation methodology.
2.3 Attribution of Sales.
(a) First Year. During the first year of this Agreement (i.e., through the first anniversary of the Effective Date), Representative shall earn Commissions on any sale to which Representative actively contributes, regardless of whether the customer is within any other sales representative's network or other networks Company develops internally or through partnerships. For purposes of this provision, "actively contributes" means Representative's substantive and meaningful involvement in the sales process, including but not limited to: (i) a series of emails or telephone calls with the prospective customer; (ii) arranging and/or conducting a lunch-and-learn presentation with the prospective customer; or (iii) arranging a sales meeting between the prospective customer and Company's sales leadership. Active contribution does not include merely sending a single email or making a single phone call. In the event of a dispute regarding attribution, Company shall provide Representative with documentation supporting its attribution decision within fifteen (15) days of Representative's written request. Representative shall have the right to contest such decision in accordance with Section 8.2. During the pendency of any attribution dispute, Company shall hold the disputed commission amounts in reserve and pay them to the prevailing party within thirty (30) days of resolution.
(b) After First Year. The parties acknowledge that the attribution methodology set forth in Section 2.3(a) is intended to apply during the Initial Term of this Agreement. Prior to the expiration of the Initial Term, the parties may negotiate an extension of this Agreement and revised attribution terms. Any revised attribution methodology agreed by the parties shall apply only on a prospective basis to new prospective customers and opportunities first engaged after the effective date of such revised terms and shall not alter the attribution of, or Representative's entitlement to trailing Commissions on, any customers or accounts that were previously attributed to Representative in accordance with this Agreement as of such effective date, subject to the conditions of Sections 2.5 and 2.6. If the parties agree to extend this Agreement but fail to agree on revised attribution terms within sixty (60) days prior to the expiration of the Initial Term, the provisions of Section 2.3(a) shall continue to apply during any extension period unless and until modified by mutual written agreement. If the parties do not agree to extend this Agreement, this Agreement shall terminate in accordance with Section 3.1, and Representative's rights to post-termination commissions shall be governed by Section 2.6.
2.4 Payment Terms.
(a) Commissions shall be calculated on a monthly basis based on Gross Payment Revenue received by Company during the applicable month. For recurring revenue products and services (including but not limited to payment processing fees and subscription-based products), Gross Payment Revenue shall be recognized in each month that Company receives payment from the customer.
(b) Commissions shall be paid to Representative within thirty (30) days after the end of the month in which the corresponding Gross Payment Revenue is received by Company (i.e., deposited into Company's bank account). Company shall use commercially reasonable efforts to make timely payments.
(c) Company shall provide Representative with a statement showing the calculation of Commissions earned for each payment period.
2.5 Perpetual Commissions; Quarterly Quota Requirement.
(a) Subject to the conditions set forth in this Section 2.5 and Section 2.6, Representative shall continue to earn Commissions on recurring Gross Payment Revenue generated from customers acquired through Representative's sales efforts for the entire duration that such customers continue to generate revenue for Company (i.e., "perpetual" or "trailing" commissions).
(b) Quarterly Quota. Representative's entitlement to receive perpetual Commissions under Section 2.5(a) is contingent upon Representative's continued sales success, as measured by Representative achieving at least three (3) new practice sales per calendar quarter (the "Quarterly Quota"). The Quarterly Quota may be adjusted by mutual written agreement of the parties if: (i) Company makes material changes to its product offerings, pricing, or sales strategy that materially impact Representative's ability to close sales; (ii) Company fails to provide adequate product support, training, or marketing materials; or (iii) market conditions change materially such that the quota becomes commercially unreasonable.
(c) Definition of Sale. For purposes of calculating Representative's achievement of the Quarterly Quota, a "sale" means: (i) a new binding written agreement for Payments services executed between Company and a dental practice or other customer; or (ii) a new binding written agreement for PrognosiX executed between Company and a dental practice or other customer. Additional products or features may be added to the definition of "sale" by written amendment to this Agreement as Company develops its product roadmap. A sale is counted toward the Quarterly Quota when the contract with the new practice is signed by both parties.
(d) Quota Shortfall. If Representative fails to achieve the Quarterly Quota in any calendar quarter (excluding the first full calendar quarter following the Effective Date, which shall serve as a ramp-up period):
(i) Payment of trailing commissions from prior sales shall be suspended for that quarter; provided, however, that commissions on new sales closed during that quarter shall be paid in accordance with Section 2.4;
(ii) Commission payments shall resume in the immediately following quarter if Representative achieves the Quarterly Quota in such following quarter;
(iii) Commissions that were suspended due to a quota shortfall shall be forfeited permanently; however, future Commission payments shall resume prospectively once Representative re-achieves the Quarterly Quota; and
(iv) Representative's underlying entitlement to future trailing commissions shall not be forfeited due to a temporary quota shortfall, provided Representative resumes meeting the Quarterly Quota in subsequent quarters.
(b) Upon termination of this Agreement by Company without Cause or by Representative for any reason, Representative shall continue to receive trailing Commissions on customers acquired through Representative's sales efforts for a period of twelve (12) months following the effective date of termination, provided such Commissions were earned prior to termination and subject to the limitations set forth in this Section 2.6. (c) Commissions that have been earned but not yet paid as of the termination date shall be paid to Representative within sixty (60) days of termination.
2.7 Expense Reimbursement. (a) The Commissions set forth in this Section 2 constitute Representative's sole compensation under this Agreement. (b) Company shall not reimburse Representative for ordinary business expenses incurred by Representative in connection with Representative's performance under this Agreement, including but not limited to: local travel expenses, automobile expenses, telephone expenses, data expenses, computer expenses, or routine marketing expenses. (c) Notwithstanding subsection (b), Company shall reimburse Representative for pre-approved extraordinary expenses, including: (i) travel expenses exceeding 100 miles from Representative's primary residence when required for customer meetings at Company's request; (ii) costs of Company-approved marketing materials or promotional events; and (iii) meals and entertainment expenses directly related to customer meetings, subject to Company's expense reimbursement policy and prior written approval. Representative shall submit expense reports with supporting documentation within thirty (30) days of incurring such expenses.
3. TERM AND TERMINATION
3.1 Term. This Agreement shall commence on the Effective Date and continue for a period of one (1) year, unless earlier terminated in accordance with Section 3.2 (the "Initial Term"). This Agreement shall automatically expire at the end of the Initial Term unless the parties enter into a written agreement to extend or renew it. The parties may renegotiate the terms of this Agreement prior to the expiration of the Initial Term, but this Agreement shall not automatically renew.
3.2 Termination.
(a) Termination for Convenience by Representative. Representative may terminate this Agreement at any time, for any reason or no reason, upon thirty (30) days' prior written notice to Company.
(b) Termination for Convenience by Company. Company may terminate this Agreement at any time, for any reason or no reason, upon ninety (90) days' prior written notice to Representative. During such notice period, Representative shall continue to receive commissions on all sales in accordance with Section 2, and upon expiration of the notice period, Representative shall continue to receive trailing commissions as provided in Section 2.6(b).
(c) Termination for Cause. Either party may terminate this Agreement immediately upon written notice if the other party: (i) materially breaches any provision of this Agreement and fails to cure such breach within fifteen (15) days after receiving written notice of the breach; (ii) becomes insolvent, makes an assignment for the benefit of creditors, or has a receiver or trustee appointed for its business or assets; or (iii) ceases to conduct business in the normal course (each, for purposes of this Agreement, "Cause").
(d) Effect of Termination. Upon termination or expiration of this Agreement for any reason: (i) Representative shall immediately cease all sales activities and use of Company's Confidential Information (as defined below) and marketing materials; (ii) Representative's right to receive any further Commission payments, including trailing commissions, shall be determined exclusively in accordance with Section 2.6; and (iii) the provisions of Sections 2.6, 3.2(d), 4, 5, 6, 7, and 8 shall survive termination or expiration.
4. CONFIDENTIALITY
4.1 Confidential Information. In connection with Representative's performance under this Agreement, Representative may receive or have access to confidential, proprietary, or trade secret information of Company, including but not limited to: (a) technical information relating to the Products; (b) customer lists, customer data, and customer contracts; (c) pricing information, commission structures, and sales strategies; (d) business plans, financial information, and strategic plans; (e) product roadmaps and development plans; and (f) any other information designated as confidential or that should reasonably be understood to be confidential (collectively, "Confidential Information").
4.2 Nondisclosure Obligations. Representative agrees that: (a) it will not use any Confidential Information except as necessary to perform its obligations under this Agreement; (b) it will not disclose any Confidential Information to any third party without Company's prior written consent; and (c) it will protect Confidential Information using at least the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care. These obligations shall survive termination of this Agreement and continue for a period of three (3) years after termination.
4.3 Exceptions. The obligations in Section 4.2 shall not apply to information that: (a) is or becomes publicly available through no breach of this Agreement by Representative; (b) is rightfully received by Representative from a third party without breach of any confidentiality obligation; (c) is independently developed by Representative without use of or reference to Confidential Information; or (d) is required to be disclosed by law or court order, provided Representative gives Company prompt notice of such requirement and cooperates with Company's efforts to seek a protective order.
5. NON-SOLICITATION
Non-Solicitation of Employees. During the term of this Agreement and for a period of twelve (12) months following termination, Representative shall not, directly or indirectly, solicit, recruit, or hire (or attempt to solicit, recruit, or hire) any employee, contractor, or consultant of Company with whom Representative had material contact during the twelve (12) months prior to termination, or encourage any such person to terminate their relationship with Company. This restriction shall not apply to: (a) general solicitations not specifically targeted at Company's personnel; or (b) individuals who respond to general advertisements or job postings.
6. REPRESENTATIONS AND WARRANTIES
6.1 Representative's Representations. Representative represents and warrants that: (a) Representative has the full right, power, and authority to enter into this Agreement and perform its obligations hereunder; (b) Representative's performance under this Agreement will not violate any agreement or obligation between Representative and any third party; and (c) Representative will comply with all applicable laws and regulations in performing its obligations under this Agreement, including laws related to marketing, consumer protection, and data privacy.
6.2 Company's Representations. Company represents and warrants that it has the full right, power, and authority to enter into this Agreement and grant the rights granted herein.
7. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS OPPORTUNITIES, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY'S TOTAL CUMULATIVE LIABILITY TO REPRESENTATIVE UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL COMMISSIONS ACTUALLY PAID TO REPRESENTATIVE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.
8. GENERAL PROVISIONS
8.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflicts of law principles.
8.2 Dispute Resolution. Any dispute, claim, or controversy arising out of or relating to this Agreement (a “Dispute”) shall be resolved as follows:
(a) Good-Faith Negotiation. The parties shall first attempt in good faith to resolve any Dispute through informal discussions between authorized representatives of each party. If the parties are unable to resolve the Dispute within thirty (30) days after one party provides written notice of the Dispute to the other party (or such longer period as the parties may agree in writing), either party may initiate arbitration as set forth below.
(b) Binding Arbitration. Except as expressly provided in Section 8.2(c), any Dispute shall be finally resolved by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules then in effect. The arbitration shall be conducted by one (1) arbitrator. The seat and venue of the arbitration shall be Montgomery County, Texas, and the arbitration shall be conducted in English. The arbitrator shall have authority to award any relief that would be available in a court of competent jurisdiction, including equitable relief, subject to the limitations set forth in this Agreement. Judgment on the arbitration award may be entered in any court of competent jurisdiction.
(c) Court Actions; Limited Carve-Out. Notwithstanding Section 8.2(b), either party may seek temporary restraining orders, preliminary injunctions, or other interim equitable relief in any court of competent jurisdiction to prevent irreparable harm or to preserve the status quo pending arbitration. In addition, either party may bring an action in a court of competent jurisdiction solely to compel arbitration, enforce this Section 8.2, confirm an arbitration award, or vacate or modify an arbitration award as permitted by applicable law. Except as set forth in this Section 8.2(c), the parties waive the right to litigate Disputes in court.
(d) Fees and Costs. The arbitrator shall have authority to allocate the costs of arbitration (including the arbitrator’s fees and AAA administrative fees) and reasonable attorneys’ fees and expenses in accordance with applicable law and the AAA rules.
8.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral.
8.4 Amendments. This Agreement may not be amended or modified except by a written instrument signed by both parties.
8.5 Assignment. Representative may not assign or transfer this Agreement or any rights or obligations hereunder without Company's prior written consent. Company may assign this Agreement to any successor or affiliate without Representative's consent.
8.6 Notices. All notices under this Agreement shall be in writing and delivered by email, overnight courier, or certified mail to the addresses set forth below (or such other addresses as a party may designate by written notice):
If to Company:
Prahsys Inc.
9595 Six Pines Dr.
The Woodlands, TX 77380
Attention: Chief Legal Officer
Email: richard.carson@prahsys.com
If to Representative:
Name: _________________________
Email: __________________________
8.7 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.
8.8 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. No waiver shall constitute a waiver of any other provision or a continuing waiver.
8.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
PRAHSYS INC.