MARKETING AGENT AGREEMENT
*
This Marketing Agent Agreement (“Agreement”) is made and entered as of the date below, by and between the (“Licensee”) and (“Marketing Agent”), Licensee and Marketing Agent are sometimes collectively referred to herein as “parties” and individually as a “party”. RECITALS A. Licensee is engaged in the business of income tax preparation under the service mark VTax™. B. Marketing Agent desires to act as an Marketing Marketing Agent in marketing the services of Licensee, and Licensee desires to secure Marketing Agent’s services under the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants and promises, terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each party hereto to the other, it is agreed as follows: AGREEMENT 1. Retention of Services. Licensee hereby retains the services of Marketing Agent on a non-exclusive, Marketing Agent basis. 2. Provision of Services. A. Marketing Agent agrees to and shall solicit customers for Licensee’s income tax preparation services (the “Services”) and shall provide VTax information to such customers, who are or who may be interested in using the Services or who have used the Services through the Marketing Agent’s efforts. Marketing Agent acknowledges and agrees that all Services shall be provided to Customers exclusively by Licensee. In no event, shall Marketing Agent provide income tax preparation services to Customers. “Customers” is defined in Section 3.B below. B. All orders for Services shall be effective only upon acceptance by the Licensee of the person requiring Services as a Customer. All approvals, billings and orders of the Services shall be handled and processed by Licensee directly with Customers. Marketing Agent shall have no authority to make any approvals, billings or collections relating to Customers on behalf of Licensee. Notwithstanding the foregoing, and only if requested by Licensee in writing, Marketing Agent will assist Licensee in the collection of monies owed to Licensee by Customers. Marketing Agent shall immediately forward to Licensee any and all monies or remittances, in any form, which Marketing Agent received from or otherwise were placed in Marketing Agent's possession or control by Customers. 3. Performance. A. Marketing Agent shall maintain its own schedule and shall determine in its sole discretion the manner of performance and the amount of time to devote to the solicitation of Licensee’s Services provided, however, Marketing Agent shall not make any representations or unauthorized statements regarding the Services in violation of Section 7 hereof. B. Marketing Agent shall not provide services to any person who is solicited by Marketing Agent and accepted by Licensee to receive Licensee’s Services (each, a “Customer”). 4. Compensation. A. The commissions payable to Marketing Agent under this Agreement shall be based upon the payment terms (as defined below) for Services paid by Customers as a result of Marketing Agent’ services during the term of this Agreement. Licensee shall pay Marketing Agent, as Marketing Agent’s sole compensation, commissions based on the number of paid Customer returns, as set forth in the payment terms. The “Prep Fees” on which the commissions shall be based shall not include any applicable taxes and shall be reduced for any discounts, refunds and allowances. B. Commissions are earned by Marketing Agent only for returns for which the Customer has paid in full for the Services and such Customer has no further right to cancel or receive a discount on the Services. In the event a Customer cancels or receives a discount for Services already paid for, Licensee will be entitled to deduct from future commissions any amount previously paid to Marketing Agent with respect to cancelled or discounted Services. C. Any loans or monies due to Licensee and unpaid by Marketing Agent shall be deducted from the next Commissions due to Marketing Agent. D. In the event of termination of this Agreement for any reason other than Marketing Agent’s breach, Marketing Agent shall be entitled to commissions on paid returns from Customers that were submitted to and accepted by the Licensee prior to the date of termination, provided that such Customer was solicited by Marketing Agent and that Marketing Agent provided customer with Marketing Agent’s unique referral code that it is assigned by Licensee. 5. Marketing Price of Services. Licensee shall determine all Prep Fees and terms of marketing for its Services. Licensee shall notify Marketing Agent of any changes in Prep Fees. 6. Licensee’s Assistance to Marketing Agent. Licensee may, in its sole discretion, supply Marketing Agent with leads, brochures, digital marketing tools, printed materials, catalogs advertising, marketing and promotional data and materials and other information to assist Marketing Agent in performing under this Agreement. 7. Warranties. Marketing Agent shall not make any warranties, promises, representations or guarantees to anyone with respect to the Services of Licensee. Any warranties, promises, representations or guarantees to be made by Licensee shall be reflected only in other agreements, documents, forms and materials prepared by Licensee and described in Section 6 hereof. 8. Term. A. The term of this Agreement shall commence on the date first set forth above and continue for the duration of one (1) Tax Season, which shall end on April 30 of the calendar year, unless earlier terminated pursuant to the terms hereof. A Tax Season is the period from December 26 through April 30 of the subsequent year. B. Either party may terminate this agreement by delivering three (3) business days written notice to the other party. 9. Relationship of Parties In the event this Agreement is terminated for any reason, Licensee agrees to pay Marketing Agent for all commissions earned up through the date of termination. Earned will mean returns filed, paid for by Customer, and acknowledged by the IRS as received and valid. Relationship of Parties. A. Marketing Agent is and at all times shall be an Independent Contractor and not a partner, agent or employee of Licensee. Marketing Agent shall represent itself to all Customers and all other persons only as an Marketing Agent and not as an agent, officer, partner or employee of the Licensee. Compensation to Marketing Agent shall not be subject to withholding or other employment taxes and Marketing Agent shall be, and is, solely responsible for all state and federal tax reporting and payment. B. Marketing Agent may employ, at its sole expense, such marketing persons or assistants as Marketing Agent deems necessary or proper to solicit orders for the Services. Any contract which Marketing Agent enters into with a marketing person or assistant must contain a provision that the marketing person or assistant is solely the employee or representative of Marketing Agent, is to be paid exclusively by Marketing Agent, and, that in employing the marketing person or assistant, Marketing Agent is acting individually and not in any manner on behalf of the Licensee. C. Marketing Agent shall timely file all required United States federal, state and local income, self-employment, unemployment and other tax, labor, information and all other returns and shall pay when due all taxes on account of its compensation hereunder, including payroll and other taxes of any persons employed by or working with Marketing Agent in the furtherance of this Agreement. Marketing Agent will indemnify Licensee for all employment taxes and/or withholdings (including interest and additions thereto) Licensee might be required to pay (including employer's share of FICA, FUTA, CASDI and similar payroll items) if any tax authorities treat Agent as an employee of Licensee or if Marketing Agent fails to comply with any tax laws. The provisions of this Section 9 shall survive the termination of this Agreement. D. Marketing Agent will have no claim or right under this agreement (or otherwise against Licensee) to any vacation pay, sick leave, retirement, insurance, social security, workers' compensation, disability or unemployment benefits, or employee benefits of any kind and will not participate in any pension, bonus or stock plans provided by Licensee to its employees. 10. Expenses. Marketing Agent shall be solely responsible for and shall pay, and hereby indemnifies Licensee against, any and all expenses incurred by Marketing Agent in connection with its performance under this Agreement. 11. Confidentiality. A. Marketing Agent agrees that it shall not, at any time during the term of this Agreement or thereafter, in any form or manner, directly or indirectly, voluntarily or involuntarily, disclose, furnish or make accessible to any person or other entity, or use for Marketing Agent’s own benefit, any Confidential Information (hereinafter defined) which Marketing Agent may obtain or have access to, receive, contribute to, originate, or discover from Licensee relating to its trade secrets (as that term is defined under all applicable laws), Services, Customers, prospective customers, services and marketing information. Confidential Information shall include, without limitation, any of the following types of information outside of the public domain: (i) Any and all forms of raw and other data relating to Licensee’s business, the Services or processes, whether or not marked “confidential”, derived from any and all sources, including without limitation: meetings, information from correspondence or otherwise analyzed data; computer printouts, computer programs, flow charts; graphs and graphic materials; and operating manuals, training manuals, webinars, software. (ii) Any and all materials, documents, information, systems, processes and techniques relating to the Services, its computer software, market or other research techniques, and any and all materials, documents, information, systems, processes obtained from or on behalf of or at the direction of either party, or any current Customer or prospective customer of Licensee. (iii) Any and all information, computer printouts, materials, documents, processes, schematics, compilations or reports relating to the marketings history of any Customer or prospective customer, including but not limited to Customer names, addresses, phone numbers, social security numbers and other tax return information, customer files, pricing structure, rebates, marketing information, customer base or business forms of Licensee. B. Marketing Agent confirms, acknowledges and agrees that any and all tangible and intangible records, tapes, notes, pictures, video tapes, printouts and documents which it may use, create, utilize or possess during the term of this Agreement, including but not limited to those written, produced or created by Marketing Agent, is the sole and exclusive property of Licensee as “work for hire”, and may not be duplicated without the express written consent of Licensee. All such items in Marketing Agent’s possession or control will be immediately delivered to Licensee upon request and, if not earlier requested, upon the termination of this Agreement. C. The provisions of this Section 11 shall survive termination of this Agreement for any reason, for a period of four (4) years following termination of the Agreement. 12. Covenants. A. During the term of this Agreement and for a period of two (2) years following the termination of this Agreement (the “Restricted Period”), Marketing Agent shall not employ or seek to employ any person who is then employed or who was employed within the immediately preceding twenty-four (24) months, by Licensee or otherwise directly or indirectly induce such person to leave his or her employment without obtaining Licensee’s prior written permission. B. Marketing Agent further acknowledges and agrees that Marketing Agent shall not take any action or make any disparaging statements or representations, either directly or indirectly, whether orally or in writing (including social media and Internet postings), by word or gesture, to any person whatsoever, about Licensee. Without limiting the generality of the foregoing, Marketing Agent shall not disparage Licensee, including its business methods and operations, employees, officers or directors. For the purposes of this provision, a disparaging statement or representation includes any communication which, if publicized to another, would cause or tend to cause the recipient of the communication to question the business condition, integrity, competence, good character or product quality of the person or entity that is the subject of such communication. 13. Remedies The parties hereto recognize and affirm that in the event of a breach of Sections 11 and/or 12 of this Agreement, money damages would be inadequate and the Licensee would not have an adequate remedy at law. Accordingly, the parties hereto agree that in the event of a breach or a threatened breach of Sections 11 and/or 12, the Licensee may, in addition and supplementary to other rights and remedies existing in its favor, apply to any court of law or equity of competent jurisdiction for injunctive or other relief in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security). In addition, Marketing Agent agrees that in the event a court of competent jurisdiction or an arbitrator finds that Marketing Agent violated Sections 11 or 12, the time periods set forth in those Sections shall be tolled until such breach or violation has been cured. Marketing Agent further agrees that Licensee shall have the right to offset the amount of any damages resulting from a breach by Marketing Agent of Sections 11 or 12 against any payments due Employee under this Agreement. The parties hereto agree that if one of the parties hereto is found to have breached this Agreement by a court of competent jurisdiction or arbitrator, the breaching party will be required to pay the non-breaching party's attorneys' fees. 14. Assignment. This Agreement may not be assigned by Marketing Agent in whole or in part without the prior written consent of Licensee. 15. Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of Puerto Rico, without reference to any conflicts of law provisions of Puerto Rico. 16. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal or personal representatives, successors and assigns. 17. Notice. All notices required hereunder shall be in writing and shall be deemed to have been given if delivered personally or by United States certified or registered mail, postage prepaid, return receipt requested, or by a recognized overnight delivery service to the parties at their respective addresses set forth in the introductory paragraph of this Agreement, or to such other addresses as shall be specified in writing by either party to the other in like fashion. 18. Entire Agreement. This Agreement sets forth and constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof. This Agreement supersedes any and all prior agreements, negotiations, correspondence, undertakings, promises, covenants, arrangements, communications, representations and warranties, whether oral or written (together the “Prior Communications”) of any party to this Agreement and no party to this Agreement may rely or shall be deemed to have relied upon any Prior Communications. 19. Indemnity. Licensee shall specifically indemnify and hold harmless Marketing Agent at its own expense from and against any and all suits, claims, losses, penalties and damages of any kind, including attorneys’ fees, arising out or incident to the Services performed by Licensee for Customers, unless caused by Marketing Agent’s negligence or willful misconduct. Marketing Agent for itself and its successors and assigns hereby indemnifies Licensee and agrees to and shall hold Licensee harmless of, from and against, and agrees to and shall pay on demand, any and all claims, costs, damages, demands, expenses, payments, including without limitation court costs and attorneys’ fees, whether known or unknown or suspected or unsuspected, for, upon or by reason of any manner, cause or thing whatsoever in any way or to any extent directly arising from and out of Marketing Agent’s services under this Agreement, including, without limitation representations and warranties to Customers and prospective customers, unless caused by Licensee’s negligence or willful misconduct. 20. Severability. If any provision of this Agreement shall be declared by any court of competent jurisdiction to be illegal, void or unenforceable, the other provisions hereof shall not be affected thereby but shall remain in full force and effect. Furthermore, if any of the restrictions regarding post-termination activities is found to be unreasonable or invalid, the court before which the matter is pending shall enforce the restriction to the maximum extent it deems to be valid and enforceable. Such restrictions shall be considered divisible as to time and as to geographical scope. 21. Waiver. Failure of either party hereto to insist upon strict compliance with any of the terms, covenants and conditions hereof shall not be deemed a waiver or relinquishment of such terms, covenants and conditions or of any similar right of power hereunder at any subsequent time. 22. Amendment. This Agreement may not be amended except by a writing executed by both parties hereto. 23. Construction. Whenever applicable in this Agreement, the singular and the plural, and the masculine, feminine and neuter shall be freely interchangeable, as the context requires. The Section headings or titles shall not in any way control the construction of the language herein, such headings or titles shall having been inserted solely for the purpose of simplified reference. Words such as “herein”, “hereof”, “hereinafter”, “hereby” and “hereinabove” when used in this Agreement refer to this Agreement as a whole, unless otherwise required by the context. The Recitals constitute an integral part of this Agreement and are fully incorporated herein. All Section and subsection references set forth herein refer to the corresponding Sections and subsections of this Agreement. 24. Further Assurances. Each party agrees to and shall execute and deliver further instruments and perform such further acts as may be requested by the other party or which are otherwise required to carry out the intent and purposes of this Agreement. 25. Venue. All actions and proceedings in any way, manner or respect arising out of or from or related to this Agreement shall be litigated only in courts having sites within Texas, as to state court actions and Texas, as to federal court actions, which courts shall have exclusive jurisdiction over all such actions or proceedings, and all parties and their transferees hereby consent and submit to the jurisdiction of any local, state or federal court located within said city and state, and all parties and their transferred hereby waive any and all rights they may have or obtain to transfer or change the venue of any litigation brought by any party hereto against any other party hereto. PAYMENT TERMS 20% of Prep Fees paid for each tax return. PAYMENT SCHEDULE Beginning January 1st through April 30th, commissions will be paid on a weekly basis every Friday for returns paid through Saturday of the previous week. After April 30th, Licensee will notify Marketing Agent of new payment schedule. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day, month and year first above written.
Marketing Agent NAMES
*
Full Names
Marketing Agent Phone
*
Marketing Agent ADDRESS
*
Street, City, State, ZIP
Marketing Agent EMAIL
*
example@example.com
Marketing Agent Signature:
*
Please sign here.
DateTime Submitted
*
Agree to the Terms and Submit
Should be Empty: