RECITALS
1. Comlink provides online marketing services to multi-system operators and other telecommunications companies who offer services to end users including services such as video, high speed internet access and telephone together with cross-selling complimentary services (collectively, the companies offering such services are referred to as “Comlink Service Providers”).
2. Comlink provides online marketing services through the use of various tactics including, but not limited to: custom websites, lead generation, landing page optimization, targeted advertising, organic search strategies and paid search advertising (the “Comlink Services”). The Comlink Services provide prospects with available offers from Comlink Service Providers and then attempts to convert the prospect into a customer using Comlink systems including web order, on-line chat and call center assets. Comlink is paid by the Comlink Service Provider, typically after the prospect who has been converted to a customer by way of an order from the Comlink Service Provider has installed and made an initial payment to the Comlink Service Provider.
3. Independent Contractor has the desire and capability to generate leads for the Comlink Service Providers products through the use of marketing tactics, specifically for the products and services of the Comlink Service Providers. (“Independent Contractor Services”).
4. The Parties desire to enter into an agreement pursuant to which Independent Contractor will provide the Independent Contractor Services to Comlink, as further described herein.
NOW THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows:
I. Definitions. Capitalized terms used herein and not otherwise defined herein are used as defined in this Section I.
A. “Advertisements” means direct marketing, search marketing, digital advertising, door to door marketing, sponsorship messages, banner advertisements, buttons, toll-free numbers and other promotional items developed for online and direct promotions.
B. “Applicable Law” means any law or regulation governing the transaction, consumer, prospect or any of the parties or Independent Contractors, under the circumstances of the particular event or action.
C. “Banner Ad” means an Advertisement that is placed on an Independent Contractor Site or by Independent Contractor in accordance with the brand and other guidelines of this Agreement
D. “Commission” means the manner in which an Independent Contractor Customer is referred to a Comlink Service Provider, which shall occur when the Independent Contractor Customer contacts Comlink via a warm transfer from Independent Contractor to a Comlink call center or using the COMLINK portal such other manner as the Parties may mutually agree upon from time-to-time.
D. “Commission Fees” means any fees earned by Independent Contractor under this Agreement.
E. “Confidential Information” means any and all nonpublic business or technical information disclosed by a Party hereto (a “Disclosing Party”) to the other Party hereto (a “Receiving Party”) in connection with this Agreement including information concerning the Disclosing Party’s past, present and future customers, suppliers, technology (including software), and business, and any other information identified as confidential, including without limitation know-how, data, technology, trade secrets, processes, techniques, programs, programming interfaces, designs, formulae, marketing, advertising, financial, commercial, sales or programming materials, written materials, compositions, drawings, diagrams, computer programs, studies, work in progress, visual demonstrations, ideas, concepts, and other data, in oral, written, graphic, electronic, or any other form whatsoever. Notwithstanding the foregoing, “Confidential Information” does not include:
1. Information which is generally known to the public when received by the Receiving Party or which subsequently becomes generally known to the public through no fault of the Receiving Party;
2. Information which is already known to the Receiving Party at the time of its disclosure and is not the subject of an obligation of confidence of any kind;
3. Information which is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party;
4. Information which is rightfully received by the Receiving Party from a third party without an obligation of confidence; and
5. Information that is required to be disclosed by law, provided that the Receiving Party gives prompt notice of such requested disclosure to the Disclosing Party and complies with any valid protective order obtained by the Disclosing Party.
F. “Customer Proprietary Network Information” or “CPNI” means the data collected by Independent Contractor which can be used to distinguish or trace an individual’s identity, such as their name, social security number, credit card information, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother’s maiden name, et, and information about any consumer who Links onto an Independent Contractor Site, which may include, but not be limited to, the time, date, duration and destination of the Link, the type of network a consumer subscribes to, and any other personal information that Independent Contractor receives about such consumer and that may be considered CPNI under Applicable Law.
G. “Comlink Sites” means the URLs/domains used by Comlink to offer the Comlink Services.
H. “Hosted” means to provide and manage servers, facilities, telecommunications, maintenance and operations related to the delivery of Internet based services and content.
I. “Independent Contractor Customer” means a consumer who contacts COMLINK, through its portal or call center, through Independent Contractor’s Advertisement efforts, is processed through Independent Contractor’s call center or is warm-transferred by Independent Contractor’s call center to a COMLINK portal or call center in all cases directly due to Independent Contractor’s Marketing Tactics performed pursuant to this Agreement.
I. “Intellectual Property Rights” means:
1. Any and all proprietary rights provided under: patent law, copyright law, trademark law, design patent or industrial design law, semi-conductor chip or mask work law, trade secret law, or any other similar statutory provision or common law principle which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions or know-how; and
2. Any and all applications, registrations, licenses, sublicenses, agreements or any other evidence of a right in any of the foregoing;
J. “Link” means a URL hidden behind a formatting option that may take the form of a colored item of text (such as a URL description), logo, button, banner or image, and which allows a user to automatically and directly transfer to such other URL, that is, to move to or between Internet pages, sites or within a document; the term Link will also include the act of moving to or between such locations as the context may require.
K. “Mark” means a trademark or service mark of a Party hereto.
L. “Marketing Tactics” means the ad copy, lead generation techniques, websites, landing pages, call script, collateral and other means by which Independent Contractor performs sales and marketing services under this Agreement and in accordance with Article 2, including the Rules of Engagement.
M. “Non-qualified Call or Lead” means a call or lead that is received by the Comlink portal or a COMLINK call center agent that is delivered by Independent Contractor where the customer is not a potential sale for the products and services offered by Comlink from the Comlink Service Providers.
N. “Qualified Call or Lead” means a call or lead that is received by the Comlink portal or a COMLINK call center agent, delivered from Independent Contractor by means of a toll-free number (“TFN”) assigned by Comlink to Independent Contractor or warm transfer where the customer has been properly informed and is willing to speak with a Comlink call center agent for more than two minutes about obtaining products or services from the Comlink Service Providers in accordance with the Comlink approved Marketing Tactics or pre-qualification guidelines submitted by Comlink and as amended from time to time.
O. “Qualified Sale” means a Qualified Call which results in an order of an RGU, product or
service from a Comlink Service Provider.
P. “RGU” means, in context of MSO and Telecommunication Companies, a revenue generating unit and refers to the phone, Internet and video products or services that Comlink sells to Independent Contractor Customers, regardless of tier. Each product or service is considered a single RGU even if a customer orders more than one product or service in a single transaction. For example, a customer who orders video and Internet, will be considered to have sold two RGUs.
Q. “RGU Conversion Rate” means the rate at which Independent Contractor’s Qualified Calls are closed according to the following formula: Qualified Sales/Qualified Calls. The RGU Conversion Rate will be calculated on a monthly basis and shall be targeted for at least twenty percent (20%) RGU Conversion Rate.
R. “RGU Install Rate” means the ratio at which Independent Contractor’s Qualified Sale or Qualified Web- Generated Sale take install or receipt of the products or services offered by Comlink Service Providers as a percentage, e.g., Month 1 has 100 orders; 60 customers take install and pay the first bill. The RGU Install rate is equal to 60%. The RGU Install Rate shall be targeted for at least fifty percent (50%).
S. “Commission” means the manner in which an Independent Contractor Customer is referred to a Comlink Service Provider, which shall occur when the Independent Contractor Customer contacts Comlink via a warm transfer from Independent Contractor to a Comlink call center or using the COMLINK portal such other manner as the Parties may mutually agree upon from time-to-time.
T. “Commission Fees” means any fees earned by Independent Contractor under this Agreement.
U. “Rules of Engagement” means those rules that Independent Contractor must at all time follow in the performance of the Independent Contractor Services, and as typically passed from the Comlink Service Provider to Comlink for obligatory use by Comlink and the Comlink Independent Contractors.
V. “URL” means Universal Resource Locator, which will design the unique Internet protocol address for locating and accessing an Internet web site and page.
II. Description of the Independent Contractor Services.
A. Independent Contractor desires to sell services from Comlink Service Providers and as mutually amended, agreed and supplemented from time to time.
B. Rules of Engagement. Independent Contractor will comply in all respects with the Rules of Engagement set forth in Schedule 2.
C. Use of Marketing Tactics. All of Independent Contractor’s Marketing Tactics related to selling under this Agreement, including, but not limited to, the use of Advertisements in Print, on website(s) and Banner Ads, must be pre-approved in writing by Comlink, without exception. Independent Contractor acknowledges that Comlink’s ability to continue offering its services to Comlink Service Providers is subject to and conditioned upon Comlink following the brand guidelines are subject to rules of engagement of Comlink Service Providers. Accordingly, a material, critical and ongoing condition of this Agreement is the compliance with the Rules of Engagement and the pre-approval of Independent Contractor’s Marketing Tactics by Comlink in accordance with the provisions of this Agreement. In the event of a failure to comply with this provision, Comlink may, inter alia, immediately suspend this Agreement, terminate the Agreement and pursue all legal remedies including injunction and damages, and all other remedies available under this Agreement. Comlink may, in its reasonable discretion, determine when a violation of this provision has occurred. Upon notification of a violation of this provision, Independent Contractor agrees to immediately suspend the offending Marketing Tactic until the parties have resolved the issue to Comlink reasonable satisfaction.
D. Independent Contractor understands and agrees that the requirement to comply in all respects with the Rules of Engagement and to obtain pre-approval of all Marketing Tactics are material terms of this Agreement, the individual breach of which will give rise to Comlink’s immediate right to terminate this Agreement and the forfeiture of Commission Fees, as further provided in Section 6 (Term and Termination), without prejudice to any other rights and obligations of COMLINK for breach of this provision.
III. Commissions.
A. Restrictions on Commissions.
1. Independent Contractor will not hold itself out as a Comlink Service Provider or Independent Contractor of a Comlink Service Provider except in accordance with Marketing Tactics approved by Comlink in writing.
2. Independent Contractor will not make any representations regarding the Comlink Services or the services of any Comlink Service Provider, other than those expressly approved in writing or distributed by Comlink or the applicable Comlink Service Provider.
B. Integration and User Information. Beginning from the Effective Date, Independent Contractor will, subject to applicable laws, privacy policies and contractual and other obligations, disclose to Comlink certain identifying information (“User Information”) it obtains from each Independent Contractor Customer that is a Commission so that the Independent Contractor Customer can avoid re-entering information that it may already have provided to Independent Contractor. Comlink will own all rights in and to such User Information. Independent Contractor acknowledges and agrees that, except as expressly provided herein, all User Information will constitute Confidential Information of Comlink, and will be treated as Comlink Confidential Information in accordance with the confidentiality provisions of this Agreement. In addition, each of Parties agrees not to disclose the User Information in a manner that would violate any Applicable Law or regulations, including without limitation, anti-spamming laws and regulations governing the use of Customer Proprietary Network Information (CPNI).
IV. Commission Fees. COMLINK shall pay the Commission Fees on a monthly basis as calculated in accordance with INDEPENDENT CONTRACTOR Partnership Rate Card hereto.
V. Payment Terms.
A. Comlink will pay all Commission Fees on a monthly basis, in US dollars, within thirty (30) days from the end of the month in which an order is installed by Comlink. In the cases where COMLINK is paid commission sooner than 30 days, COMLINK will pay INDEPENDENT CONTRACTOR sooner, as well.
B. Accompanying all payments, Comlink will provide to Independent Contractor a statement itemizing the basis for its calculation of the Commission Fees.
C. Commission Fees cannot be earned on calls that are placed for the personal or business use of the Independent Contractor, Independent Contractor’s immediate family members, or other Independent Contractor Customers whose relationship is judged by Comlink, in its sole discretion, to constitute a self-Commission by Independent Contractor. Any such calls shall be deemed to be Non-Qualified Calls.
E. If applicable, upon execution of this Agreement, Independent Contractor will complete and return IRS form
W-9 to Comlink.
VI. Term and Termination.
A. Unless terminated as provided herein, the term of this Agreement will begin on the Effective Date and continue for an initial period of one year. Thereafter, the Agreement will continue automatically for additional periods of one year, unless either Party terminates the Agreement as provided herein.
B. Either Party may terminate this Agreement for convenience upon thirty (30) days prior written notice.
C. Comlink may terminate this Agreement immediately by written notice to Independent Contractor if Comlink reasonably determines that Independent Contractor has failed to comply in all respects with the Rules of Engagement or is engaged in improper or unapproved Marketing Tactics. In such event, Independent Contractor agrees that, amongst any other available remedies at law, all Commission Fees owed and not yet paid by Comlink shall be forfeited.
E. Upon the expiration or termination of this Agreement for any reason, each Party will immediately deactivate all phone numbers, Order Entry Tools and Links to the other Party’s Site. Except as provided in Section 6.c. immediately above, all accrued payment obligations of COMLINK to Independent Contractor, including those of COMLINK with respect to Qualified Calls that have not yet been paid, will survive expiration or termination of this Agreement. Any and all other obligations under this Agreement which, by their very nature, should reasonably survive the termination or expiration of this Agreement, will so survive. Each Party will, at the request and expense of the other, provide reasonable assistance to effect an orderly termination.
VII. Exclusivity. During the term of this Agreement and for thirty (30) days following the termination of this Agreement, Independent Contractor will not enter into Commission agreements with other third parties to provide services that are the same as or substantially similar to the Independent Contractor Services that Independent Contractor is providing to Comlink.
VIII. Tracking. Comlink will use commercially reasonable good faith efforts to track all Qualified Calls that generate Commission Fees to Independent Contractor and report such information as part of the payment process. Independent Contractor acknowledges and accepts that the tracking system used by Comlink may not be fail-safe and that there may, on occasion, be instances of that are not credited to Independent Contractor. Comlink will try to avoid and/or correct all such omissions; provided, however, that the occasional failure to do so shall not be deemed to be a material breach by Comlink of this Agreement.
IX. Confidentiality Obligations.
A. During the Term of this Agreement and for a period of three (3) years thereafter, each Party will hold all Confidential Information disclosed by the other Party in confidence, using the same degree of care that it uses to protect its own Confidential Information of like importance. To the extent that any Confidential Information disclosed hereunder consists of computer software, application programming interfaces (“APIs”) or similar technology, the receiving Party may only use such technology in furtherance of the express purposes of this Agreement and may not decompile, disassemble or reverse engineer any such Confidential Information.
B. Each Party may, however, disclose Confidential Information on a “need-to-know” basis under an obligation of confidentiality to its employees and professional advisors, provided that such employees and advisors comply with the provisions of this Section.
C. The terms and conditions of this Agreement will be deemed to be the Confidential Information of each Party and will not be disclosed without the written consent of the other Party.
D. The terms and conditions of any Comlink Service Provider agreement or similar agreement of Comlink and which is provided to Independent Contractor for review, will be deemed to be the Confidential Information of Comlink.
E. Upon the termination of this Agreement, each Party will return to the other all Confidential Information of the other which is then in its possession or control, and will remove all digital representations thereof in any form from all electronic storage media in its possession or under its control.
F. Each Party acknowledges that its failure to comply with the provisions of this Section may cause irreparable harm to the other Party which cannot be adequately compensated for in money, and accordingly acknowledges that the other Party will be entitled to seek, in addition to any other remedies available to it, interlocutory and permanent injunctive relief to restrain any anticipated, present or continuing breach of this Section without having to post a bond or other security.
X. Ownership. All software, application programming interfaces, business processes, marketing techniques or technology used by a Party to fulfill its obligations hereunder shall at all times be, and shall be deemed to be, solely the property of such Party, including all patents, copyrights, trademarks, trade secrets and other Intellectual Property Rights therein. Except as it pertains to the limited rights of one Party to use the Marks of another Party and relating to User Information, no rights in any intellectual property are conveyed in this Agreement.
XI. Representations and Warranties of the Parties.
A. Each Party represents and warrants to the other Party that:
1 it has the full corporate power and authority to enter into this Agreement and to perform its obligations hereunder;
2. none of the Intellectual Property Rights licensed or furnished by such Party to the other Party hereunder does not and will not, during the term hereof, infringe or conflict with the Intellectual Property Rights of any third party;
3. in performing this Agreement, it will comply in all material respects with all applicable laws and regulations;
4. in accessing the other Party’s sites, or utilizing any aspect of the other Party’s services on behalf of itself or a prospective customer, it will do so in accordance with the other Party’s stated privacy and other applicable policies; and
5. no website used in this Agreement will be used to disseminate any malicious code, including without limitation viruses, worms, trojans, adware or spyware, or contains or will contain any material that is pornographic, libelous, defamatory, obscene or infringing.
B. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY WARRANTS THAT ITS WEBSITE OR SERVICES WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION.
XII. Indemnities. Each Party agrees to defend, indemnify and hold the other Party and its directors, officers, employees and contractors (including Comlink Service Providers) harmless from and against all third party claims, losses, costs, damages, expenses and liabilities, including court costs and reasonable legal fees brought by a third party (collectively “Claims”) arising from or in connection with, or based on allegations: arising out of any material breach or non-performance of any provision of this Agreement or personal injury or damage to property caused by such Party or its employees or contractors in connection with its performance of this Agreement. The indemnified Party shall promptly notify the indemnifying Party of any Claims, and the indemnifying Party shall have the right to defend such Claim with counsel of its choosing. At the request of an indemnifying Party, the indemnified Party shall reasonably cooperate in the defense and settlement of such Claim at the indemnifying Party’s expense.
XIII. Limitation of Liability. Neither Party shall be liable to the other Party hereunder for any special, consequential, indirect, incidental, exemplary or punitive damages or loss of profit, whether in contract, tort or otherwise, even if such Party has been advised of the possibility of such damages. Except with regard to violations by Independent Contractor of the Rules of Engagement, the Warranties and as set forth in Article II.C, each Party’s liability to the other Party hereunder will not exceed the amounts paid to Independent Contractor over an immediately preceding twelve (12) month period, calculated as of the date that the default or indemnification obligation arose.
XIV. Independent Contractor Status of Parties. Nothing in the Agreement shall be deemed to constitute a partnership or joint venture between Independent Contractor and Comlink. No Party or their respective employees, agents, customers, or subcontractors shall be deemed an employee, agent, customer, or subcontractor of the other Party by virtue of the performance of the services set forth in this Agreement. Under no circumstances shall a Party’s employees, agents, customers, or subcontractors, be entitled to any benefits which the other Party may offer to its own employees, agents, customers, or subcontractors from time to time.
XV. Notices. All notices and other correspondence to be served under this Agreement, whether as notice of process or otherwise, shall be made in writing and shall be sufficiently be deemed given on the date received by:
A. certified mail (postpaid and return receipt requested), or
B. Federal Express or comparable overnight courier of national reputation with proof of receipt.
XVI. Publicity. Each Party hereto has the right periodically to publicize the relationship set forth in this Agreement, provided the publicity has been submitted to and approved by the other Party prior to disclosure, such approval not to be unreasonably withheld or delayed. The Parties will agree on the timing and content of a press release for release promptly upon signing of this Agreement, announcing the Parties’ relationship.
XVII. Miscellaneous Provisions.
A. The failure of either Party to exercise any right provided for herein shall not be deemed to be a waiver of any other right hereunder. No waiver of any right or breach of this Agreement shall be deemed to be a waiver of any subsequent exercise of a right or breach of this Agreement. No waiver of any right of obligation in this Agreement may be made except through a writing signed by the waiving Party.
C. Neither Party shall be liable to the other for any loss or damage which may be suffered by the other due to any cause beyond the Party’s reasonable control including, but not limited to, any failure of third-party software, telephone or database systems, act of God, terrorism, inclement weather, failure or shortage of power supplies, power outages, flood, drought, lightning or fire, strike, lock-out, trade dispute or labor disturbance, the act or omission of government, telecommunications operators or administrators or other competent authorities, war, military operation, or difficulty, delay or failure in manufacture, production or supply by third parties of materials or equipment necessary to carry out this Agreement.
D. This Agreement shall be governed by and construed in accordance with the laws of the Delaware without regard to its conflict-of-law rules. The Parties hereby consent to the exclusive jurisdiction of the state or federal courts located in Washington DC for resolution of disputes arising out of this Agreement.
E If any term of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that will not affect: (a) the legality, validity or enforceability in that jurisdiction of any other term of this Agreement; or (b) the legality, validity or enforceability in other jurisdictions of that or any other provision of this Agreement.
F. This Agreement and the schedules annexed hereto constitute the entire Agreement between the Parties regarding the subject matter hereunder and supersede all prior and contemporaneous representations, proposals, discussions, and communications, whether made orally or in writing. This Agreement may be modified or amended only in writing signed by each of the Parties.
G. A person who is not a party to this Agreement shall not have any third party rights under this Agreement.
H. This Agreement may be executed and delivered in any number of counterparts by facsimile or electronic mail, all of which taken together will constitute one and the same agreement.
SCHEDULE 1
Exhibit G: Services Rate Sheet – Comlink Total Solutions
The Services that the Independent Contractor can expect to receive, at no additional charge, except as noted below, include the following:
• Track, reconcile, report, and record each order at the dealer level
• Qualification tool by zip code for business and residential carriers throughout the country by carrier
• Add unlimited sub-users for their organizations, giving the sub-users the ability to manage and track their sales progress and sales goals, while limiting sub-users from any admin features.
• Unlimited access to the training portal and training videos
• Unlimited use of the mobility application
• A lead portal will be provided. This can be used for Direct Mail Campaigns, on-line marketing, SEO campaigns and more.
• A Commission Program for dealers. This will allow dealers to register and track leads from Commission partners.
• BYOC. Independent Contractors can bring their own contracts (BYOC) to the portal
• If a Independent Contractor has more than 50% of their orders flowing through their own contracts, Comlink has the option of charging of $5 per transaction rate to the Independent Contractor
• Ability to integrate hosted phone systems or have the option of using Comlink’s hosted, “Five Nine,” which provides complete full call recordings, which will be stored up to six (6) months
• Commission partner to sell ADT Home Security
• Commission partner to sell Sprint wireless
• Commission partner to sell T-mobile and AT&T Wireless
• Commission partner to sell Multiple Dwelling Units (MDU) and Lodging and Institutions (L&I)
• Commission partner to sell upmarket complex data sales such as Fiber, MIS, and cloud based solutions
SCHEDULE 2A
RULES OFENGAGEMENT
In order to maintain consistency and to honor Comlink’s relationships with all of the Comlink Service Providers, it is imperative that Comlink accurately represent brands and products in accordance with contractual obligations and not engage in any actions or omissions that will cause Comlink to be in breach of its agreements with the Comlink Providers. These requirements must be honored by Independent Contractor, whether Independent Contractor is directly or indirectly involved in the offering of the products and services of any Comlink Service Provider under this Agreement. Comlink may unilaterally update these Rules of Engagement from time-to-time to, among other things; remain compliant with its agreements with the Comlink Service Providers. In the event that Independent Contractor does not agree to any amendment of this Schedule 2, it shall immediately cease marketing and terminate any campaigns as to the relevant Comlink Service Provider.
1. Spam/Unsolicited Commercial Email (UCE). Independent Contractor may not participate in mass, unsolicited emailing (i.e., spamming).
2. Spyware and Other Parasitic Software. Independent Contractor is prohibited from forming a relationship, formal or informal, with any provider of spyware or parasitic software.
3. Website Restrictions. Independent Contractor is prohibited from including content on any of the Independent Contractor Sites that is reasonably determined, in Comlink’s sole discretion to contain any of the following:
a. X-rated or sexually explicit materials;
b. Violence or discord;
c. Discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
d. Illegal, morally questionable or controversial activities;
e. Violation of intellectual property rights.
4. Behavior/Conduct. Independent Contractors are to conduct themselves professionally and respectfully when dealing with potential customers, Comlink employees, Comlink Service Provider or any group or individual associated or Independent Contractor Comlink. Abusive and/or unprofessional behavior is prohibited.
5. Domain Masking. Independent Contractor is prohibited from hiding the actual domain name of any Independent Contractor Site from the URL field of a user’s web browser in favor of another name. For Comcast, Independent Contractor may not use a Comcast branded term in the Comcast table below in any URL without the express written permission of Comcast and Comlink.
6. Branded Search. Independent Contractor shall not use any Comlink Service Provider name or trademark, including a trademark of a company Independent Contractor with a Comlink Service Provider, in any Advertisement, including paid search.
7. Additional Restrictions.
Sub Independent Contractors cannot use branded terms in search, ads, social media or URLs.
Schedule 2B Time Warner Cable Restrictions on Marketing Tactics
1. Pursuant to Article I, definition of “Marketing Tactics” and Article II of the Agreement (including Schedule 2 (Rules of Engagement), Comlink is subject to brand guidelines and Rules of Engagement from the Comlink Service Providers and all Marketing Tactics are subject to pre- approval in writing by Comlink and the affected Comlink Service Provider. Under the Agreement, Comlink is permitted to unilaterally amend the Rules of Engagement when so required by a Comlink Service Provider.
2. In addition to all provisions within the Agreement, the Marketing Tactics and Rules of Engagement of the Agreement shall be supplemented with the following:
Until otherwise notified in writing, in any and all Time Warner Cable related programs, Independent Contractor is required to abide by the following restrictions applicable to all Time Warner Cable solicitations or Time Warner Cable related Marketing Tactics:
Brand Presentation Objective: Ensure that consumers are aware that they are doing business with an authorized retailer and not TWC directly.
• All written marketing creative to be approved in writing by TWC merchandising personnel.
• Consumers exposed to any marketing will be fully aware that they are doing business with an authorized retailer and not TWC. Partners to seek every opportunity to make this distinction including but not limited to making the partner’s consumer brand most prominent.
• In call centers, the agent/IVR greeting will not include the TWC brand. For example:
o “…thank you for calling buy Time Warner Cable dot com…”
o “…thank you for calling Time Warner Cable specials dot com…”
Instead, greeting shall say “…thank you for calling ETAILER, an authorized retailer of Time Warner Cable. The same concept applies to all marketing and communications including but not limited to: chat, text, email, etc.
• The TWC brand shall never appear on a credit card statement.
• Position management applies to branded search (mobile & desktop). No etail ad shall be positioned higher than TWC corporate ad.
• You are prohibited from buying branded keywords.
o A branded keyword is considered as any iteration or misspelling of the following:
▪ Time Warner
▪ Time Warner Cable
▪ Time Warner Communications
▪ Road Runner
▪ Digital Home Phone
Customer Experience Objective: Proactively eliminate the complaints of e Tailer-managed promotions. Remove the burden on TWC to support e Tailer-managed promotions.
• All promotions attached to TWC offering are to be approved by TWC and require a one-sheeter/
job-aid with all promotion details.
• Each Independent Contractor will provide escalation procedures meant to minimize the burden on TWC.
• The sale of TWC services shall not be contingent on any other product/service sale or vice versa.
Customer Privacy Objective: Maintain consumers’ trust of TWC, uphold all legal provisions within the Customer Privacy Agreement.
• Any opt-in messaging on a website or otherwise will read, “Check box to receive promotional information from eTailer”. The default opt-in is unchecked. The opt-in message will state that remarketing will be from the etailer. Unless the customer checks the opt-in box, they shall not be exposed to remarketing of non-TWC services after providing information within a TWC experience. This includes situations where consumer provides PII but does not complete an order.
• Separately, the customer may be given the option to opt-in for installation updates.
Channel Conflict Objective: Prevent eTailer marketing efforts from cannibalizing business from other TWC marketing.
• Through 10/31/11, TWC will test a unique commission structure in all of California and require eTailers to cease advertising of single products. See details under separate cover.
• Use of “Official Website” or similarly intended copy is prohibited.
• Use of “Best Price” or similarly intended copy is prohibited.
• Listings on phone directories (e.g. 800-555-1212) is prohibited.
• Use of vanity phone numbers containing TWC marks (e.g. 800-TWC-SALE) is prohibited.
Competitive Conflict Objective: Prevent the TWC brand from being used to sell services that directly compete with TWC services.
• Competing areas include voice, video, Internet, home security and home networking.
• eTailers shall not directly target TWC customers with competing services/hardware. This includes modems and routers.
• Following any point where a consumer engages with the TWC brand (e.g. clicks on a plan, performs a branded search, etc.), no competing products/services shall be offered.
Schedule 2C DirectTV Restrictions on Marketing Tactics
Statement for Independent Retailers Regarding DIRECTV’s Policies
Relating to Telemarketing, Internet Marketing, and Home Solicitation
Today’s technology provides a variety of methods for marketing to consumers, many of which may be used effectively to produce sales. However, several of these methods present particular risks and concerns which are the subject of this Policy Statement. In addition, virtually every method of marketing
is subjected to a variety of state and federal laws – ranging from laws protecting consumers from unfair and deceptive practices to home solicitation laws. A general overview of these types of laws is also provided; however, it is your responsibility to determine which specific laws are applicable to your activities. Please review this Policy Statement carefully. You are expected to know and comply with all marketing laws applicable to your activities.
The retailer agreement (the “Agreement”) you have with DIRECTV creates an independent contractor relationship due to the fact that DIRECTV does not have control over how you run your business. However, your Agreement requires that you conduct your activities in a manner that will not impugn DIRECTV’s reputation and goodwill, and that you comply with all applicable laws and DIRECTV policies.
DIRECTV’s policy is to adhere to all laws relating to marketing activities. Each retailer is responsible for making sure that its own marketing activities conform to the law. Retailers must identify themselves in all marketing, and cannot hold themselves out as DIRECTV. Moreover, in making any outbound or taking any inbound calls, retailers cannot state that they are calling or answering calls “on behalf of” DIRECTV. You are not authorized to hold yourselves out as an agent of DIRECTV.
The purpose of this Policy Statement is to alert you to the existence of certain types of marketing laws and DIRECTV’s policies in regards to certain marketing activities. You must take all steps necessary to tailor your marketing efforts to conform to the law and DIRECTV’s policies. DIRECTV maintains the right to immediately terminate its Agreement with any retailer that DIRECTV believes, in its sole discretion, may have breached the Agreement, violated DIRECTV’s policies, or otherwise engaged in illegal, objectionable, inappropriate, or otherwise forbidden marketing activities. DIRECTV will also immediately terminate the Agreement of any retailer found to have made misrepresentations to DIRECTV about its marketing activities.
The information provided in this Policy Statement is in summary form only and is not intended to provide legal advice or counsel. Legal requirements differ from jurisdiction to jurisdiction, and are constantly evolving. Therefore, it is imperative that you consult your legal counsel for full details on the requirements of all applicable marketing laws and regulations before undertaking any marketing campaign.
I. Telemarketing
The federal Telephone Consumer Protection Act, 47 U.S.C. § 227 et. seq., (“TCPA”) places restrictions on the use of telephone equipment to market or promote products and services. Numerous states have adopted statutes modeled after or more restrictive than the TCPA, each with its own penalty scheme. Another related and significant regulatory regime in this area is the Telemarketing and Consumer Fraud Prevention Act, 15 U.S.C. § 6101 et. seq., as implemented by the Federal Trade Commission in the Telemarketing Sales Rule, 16 CFR Part 310 (“TSR”). In 2003, the FTC and FCC established and began enforcement of a National Do Not Call Registry. The FCC has also implemented stricter rules for enforcing the TCPA which began to take effect in 2012. Many states also have their own Do Not Call Registries, as well as telemarketer registration and bonding requirements. They also often impose stricter requirements than the federal law. In many instances these state laws apply to all forms of outbound and inbound telemarketing. Thus, even if you are otherwise making a permitted call, you may still be required to register and/or post a bond in certain states prior to placing or receiving a telemarketing call.
The potential penalties for violating these laws are serious. For example, the government can impose $16,000.00 in penalties “for each such violation” of the TCPA or the Telemarketing Sales Rule. In addition, under the TCPA, consumers can bring private rights of action to seek the greater of actual damages or $500, which can be trebled to $1500 by the Court if the conduct is deemed willful. Because of the myriad of laws making compliance difficult, as well as the penalties and loss of reputation and goodwill associated with non-compliance, DIRECTV does not provide discretionary marketing funds for use in connection with outbound telemarketing solicitations.
Following are DIRECTV’s specific policies and guidelines regarding particular forms of outbound telemarketing:
A. Facsimile advertising.
Facsimile advertising is a form of outbound telemarketing solicitation that is expressly disapproved of for ANY use in advertising “DIRECTV” branded products and services. In addition, it is considered a violation of this Policy Statement for any independent retailer to use facsimile advertising in connection with Dish Network or any “satellite television” product if such advertisement is likely to lead to consumer confusion and the mistaken belief that such advertising relates to DIRECTV- brand products or services.
B. Pre-recorded messages.
Pre-recorded message advertising is also a form of outbound telemarketing solicitation that is expressly disapproved of for ANY use in advertising “DIRECTV” branded products and services. In addition, it is considered a violation of this Policy Statement for any independent retailer to use pre- recorded message advertising in connection with Dish Network or any “satellite television” product if such advertisement is likely to lead to consumer confusion and the mistaken belief that such advertising relates to DIRECTV-brand products or services.
C. Text or SMS messages.
Several courts have determined that text or SMS messages are legally the same as phone calls or pre-recorded messages. Therefore, text message advertising is also a form of outbound telemarketing solicitation that is expressly disapproved of for ANY use in advertising “DIRECTV” branded products and services. In addition, it is considered a violation of this Policy Statement for any independent retailer to use text message advertising in connection with Dish Network or any “satellite television” product if such advertisement is likely to lead to consumer confusion and the mistaken belief that such advertising relates to DIRECTV-brand products or services.
D. Outbound unsolicited telephone calls by live operators (“cold calling”).
Using live operators (with or without using dialing equipment) to place unsolicited (no applicable existing business relationship or qualifying inquiry) outbound telemarketing calls, sometimes also referred to as “cold calls,” expressly disapproved of for ANY use in advertiing “DIRECTV” branded products and services. In addition, it is considered a violation of this Policy Statement for any independent retailer to place such calls in connection with Dish Network or any “satellite television” product if such advertisement is likely to lead to consumer confusion and the mistaken belief that such advertising relates to DIRECTV-brand products or services.
E. Returning Calls to Prospective Customers who have made a “qualified” inquiry, and calls to existing or former customers
1. Inquiries from prospective customers. Retailers may generally make or return telephone calls to prospective customers who initiate contact with them to inquire about DIRECTV products and services, notwithstanding the consumer’s registration in the federal Do Not Call registry or similar state registries. Current federal law permits an outbound telemarketing call to a consumer if the consumer has made an inquiry within the past 90 days regarding a product or service offered by the retailer, unless the consumer has previously asked to be placed on the retailer’s internal Do Not Call list. Some state laws do impose more restrictive time frames, require registration and/or bonding requirements or even prohibit return calls to consumers on their state Do Not Call registries altogether, so obtaining advice of counsel regarding the laws in the jurisdictions within which you plan to operate is imperative. Moreover, in recent years, states have become increasingly active in restricting the scope of traditional EBR calls (e.g. New York). You must review any state’s telemarketing laws before you choose to place any type of telemarketing call into a state.
You must also have a written Do Not Call policy, train your operators on the policy, enforce compliance with the policy, provide it upon a consumer request, and timely honor all requests to be placed on your internal Do Not Call list. You must scrub against your internal list (and more restrictive state lists) before making return calls to consumers who have made an inquiry.
Typically, in order to qualify for an “inquiry” exemption to Do-Not-Call registries, the inquiry by the consumer must be made to you, the actual retailer, and not to a third party marketer or lead generator (unless that generator clearly and conspicuously identifies you and that it is acting on your behalf). The inquiry must also be specific to DIRECTV products or services, not simply, for example, a general consent to receive more information about “electronic products” or “satellite systems.”
DIRECTV’s policy requires that return calls be made by a live operator – no pre-recorded messages, including “Press 1” or other approaches should be used. Any other method could result in violation of the law.
In addition, the FCC’s stricter rules under the TCPA announced in 2012 do not allow telemarketing calls to be made using automatic dialing equipment unless the marketer has proof of the consumer’s prior express consent to receive calls. In the case of calls to cellular phones, the proof of consent must be written (requiring written or ESIGN consent proof). Therefore, return calls should not only be made by live operator – no pre-recorded messages – but best practices suggest having operators manually dial to return calls in order to avoid potential problems in proving consent.
If automatic dialing equipment is to be used to return customer inquiries, special steps must be taken to avoid violations. First, return calls should not be made with automatic dialing equipment to any number simply “captured” through a caller ID or other system. Return calls should only be placed to consumers who talked to an agent and provided consent to future calls. Consent must be clearly and expressly given (e.g., “may I call you back at this number — — —-?” and/or “would you like to provide a number so I may call you back?”). If the consumer says no or refuses to provide a number, the consumer may not be called back using automatic dialing equipment. If the agent is unable to ask for consent (e.g., the caller hangs up or the call drops), the consumer may not be called using automatic dialing equipment. Second, because using automatic dialing equipment to make telemarketing calls to cellular phones requires consent to be written, calls in which consent is obtained must be recorded and stored to maintain ESIGN proof of consent. Either all calls need to be recorded and preserved, or, policies and procedures could be developed for identifying cellular telephones (including asking the consumer if the number they are providing is a cellular number) and recording and maintaining written consents only insofar as cellular phones are concerned. Finally, all call abandonment rules must be adhered to, including the new FCC’s 2012 rule change requiring abandoned call messages to include an interactive opt out for DNC requests..
There are several key aspects to remember when claiming “inquiry” call exemptions to the TSR or state laws:
• Time frames in which calls can be returned must be strictly obeyed, both in terms of overall call return period (as noted, federal law permits return calls within 90 days of inquiry, but some state laws are more restrictive) and hour, day of week and holiday restrictions (e.g., no calls before 8 AM or on holidays). In addition, some states impose registration and bonding requirements which may apply to all types of telemarketing calls, including calls to consumers who have made an inquiry, and to inbound calls. You must consult with legal counsel to ensure compliance in every state to which you return or place calls to inquiring consumers.
• Consumer inquiries to third parties do not create an exemption unless, in the process of obtaining the lead, the Independent Contractor clearly and conspicuously discloses that the consumer will receive a call from you, the actual retailer/seller.
• That is true even as to subsidiaries and Independent Contractord companies. Consumer inquiries to your subsidiary or Independent Contractor do not provide you an exemption to call the consumer back, unless, the consumer would reasonably expect you to respond to the inquiry. Similarly, your subsidiaries and Independent Contractors cannot return calls to consumers who make an inquiry to you, unless, the consumer would reasonably expect the subsidiary or Independent Contractor to call. And finally, such permissible return calls must involve the product the consumer originally inquired about.
• Remember: DIRECTV’s approval is required if you plan on using a third party to generate leads, and under no circumstance should you call a consumer whose name and phone number was provided by a lead generator unless the consumer is aware of your identity and you can prove the consumer consented to receiving a call from you, as the actual retailer/seller, about DIRECTV products or services.
• The burden is on you to maintain records and documents to “prove that an inquiry was made by the consumer” and to the extent autodialing equipment is used, the appropriate consent was obtained, including proof of written/ESIGN consent for returning calls to cellular phones. This is not only a DIRECTV policy requirement, but a legal requirement. You should never place a return call to a consumer unless you have proof that the consumer made
2. Calls made to a consumer where there is an existing prior business relationship which includes a financial transaction. Under federal law, you may also call consumers who have engaged in a financial transaction with you within the past 18 months prior to the telemarketing call. Again, however, several states have stricter laws and it is incumbent upon you to consult with counsel to ensure compliance in every jurisdiction in which you plan to make such calls, as every year more states are passing more restrictive laws. Further, as with the consumer inquiry exemption described above, the following restrictions apply:
• This exemption does not apply if the consumer has asked to be placed on your internal Do Not Call list.
• This exemption does not apply to your Independent Contractors or subsidiaries, as described above.
• The burden is on you to maintain documents and records in order to establish that the exemption exists. These documents proving the relationship must be produced upon the request of DIRECTV or any regulatory enforcement agency.
• Some state laws are more restrictive, so you must consult with local counsel to determine whether or not existing business relationship telemarketing calls can be made to consumers in particular states.
F. General Telemarketing Requirements
In addition to the national database Do Not Call provisions, the Telemarketing Sales Rule also sets forth significant requirements which must be complied with when engaging in any type of telemarketing (including calls made in response to a consumer’s inquiry or to customers with whom you have an existing business relationship). Similar requirements also exist at the state level. At a minimum, independent retailers engaging in any type of telemarketing sales call must comply with the following requirements:
Immediate disclosures. You must immediately and promptly disclose at the beginning of the call your identity, the purpose of the call, the nature of products being sold and certain other disclosures.
• Calling time restrictions – you can generally only make calls between 8:00 a.m. and 9:00 p.m. in the consumer’s time zone. Some states have more restrictive time restrictions.
• Maintenance of internal Do Not Call policies – all retailers who call consumers must maintain a written Do Not Call policy, train all employees about that policy and police for compliance. Further, upon request, a copy of the written policy must be sent to any consumer requesting the same. Lastly, you must maintain and scrub against your internal Do Not Call list and place consumers on that list immediately after receiving the request.
• Additional disclosures. Prior to the conclusion of the call, you must disclose the total cost including shipping and handling charges of any product purchased, all material conditions of the sale including any material limitations on free equipment or installation offers (such as any DIRECTV requirement to maintain a certain level of service for a specified period of time) and certain additional disclosures regarding any prize promotions.
• Record Keeping Requirements. In addition to maintaining records concerning any claimed exemption from a Do Not Call registry, you are also required to maintain other records concerning the telemarketing sale of products or services, including copies of all advertisements and promotional materials, sales and prize records, and certain contact information concerning telemarketing employees.
• Bonding and Registration Requirements: Some states require telemarketers to be registered and/or provide a bond, even for inbound calls in some states. You must consult with counsel to determine whether or not these requirements are triggered by your intended activities.
• Miscellaneous requirements: You may not engage in threats of intimidation, repetitive and annoying calls, or make false and misleading statements.
II. No Third Party Solicitors/Marketing Agents
Your Agreement with DIRECTV does not allow the use of third parties to solicit sales absent express written approval of DIRECTV. Approval must be given by both the Regional Vice President/Senior Director and Senior Vice President – Sales. No other employee is authorized to provide approval, written or otherwise. Thus, you are not authorized to use any agent, independent contractor or any other third party to conduct marketing campaigns as addressed in this Policy Statement. In the event that DIRECTV suspects you are using a third party to telemarket, email, text, conduct home solicitations, or any other similar form of marketing, DIRECTV may immediately terminate your Agreement.
III. Internet Marketing
A. E-Mail
A federal law (The Can Spam Act), effective January 1, 2004, places numerous restrictions on e-mail marketing messages that companies may send to users. The Can Spam Act creates tough penalties such as criminal sanctions with up to 5-year jail sentences and fines including statutory damages of up to $2 million per incident (trebled to $6 million for knowing violations). The law prohibits deceptive practices that mislead consumers, such as using misleading subject lines or headers, masking the marketer’s identity in the reply address, or falsifying registration information. This federal law pre-empts most state laws related to e-mail regulation, but you need to check with counsel to ensure no additional state requirements apply.
DIRECTV does not engage in nor does it condone illegal e-mail marketing, sometimes referred to as “spamming.” Accordingly, DIRECTV will not tolerate spamming from independent retailers. Your Agreement requires you to comply with all applicable laws, and also requires that in all of your activities as an independent contractor for DIRECTV, as well as in your separate equipment business, you engage in no practice which impugns DIRECTV’s commercial reputation and goodwill. Spamming not only may result in the violation of laws, but also reflects poorly on the DIRECTV-brand name.
If you choose to market via e-mail, you are responsible for adopting and adhering to policies and procedures that will prevent illegal spamming. You need to speak with your legal counsel to ensure compliance with the law, but at a minimum, your policies should address the following: E-mail messages containing advertisements are required to include a clear and conspicuous identification that the message is an advertisement or solicitation. Further, the law prohibits misleading practices such as using misleading subject lines or headers, masking the marketer’s identity in the reply address, or falsifying registration information. Messages must also include a clear and conspicuous notice that recipients can “opt-out” of receiving future messages, and the message itself must include an immediate opt-out mechanism – either a functioning return address or an automated opt-out method. The opt-out mechanism must work for at least thirty (30) days after the e-mail was sent. The sender has ten (10) days to remove an opt-out from its marketing list. Messages must further contain a valid physical postal address. Harvesting of e-mail addresses on the Internet or randomly generating electronic mail addresses by computer is strictly prohibited. Harvesting activities constitute aggravated violations which may result in trebled fines.
Some prohibitions (not any related to deceptive practices) may not apply if the advertiser has the recipient’s express affirmative consent to receive e-mail advertisements. However, consent can only be demonstrated where the recipient expressly consented to receive e-mail advertisements from that advertiser either in response to a clear and conspicuous request for consent or at the recipient’s own initiative. Finally, e-mail messages sent to facilitate, complete or confirm a commercial transaction are exempt. This includes messages that reflect account statements, change of status or terms, product updates and upgrades, warranty information, safety or security information, subscriptions, memberships and other similar commercial relationships. However, this exemption does not provide marketers with a broad “existing business relationship” exemption. Thus, before undertaking any campaign, you should consult with your legal counsel to ensure compliance with all new developments in the law.
DIRECTV expects you to keep, maintain and utilize the required “opt-out” list to prevent sending messages to consumers who have expressed a desire not to be contacted via e-mail. You must have in place, and train all employees involved in this marketing activity on, written policies and procedures to ensure that all requests – including any that may be made to your postal address – are timely addressed and honored. These written policies and procedures must be made available to DIRECTV upon request.
To the extent you claim exemption from the law due to affirmative consent or completion or confirmation of a commercial transaction, you must preserve and maintain proof of such exemption status. Such proof must be made available to DIRECTV upon request.
Failure to comply or produce materials to DIRECTV upon its request may result in termination of your Agreement.
B. Banner Ads and Other Website Marketing
State, federal, and foreign laws generally related to advertising apply in both the online and off- line environments. Accordingly, when using or operating banner ads or otherwise advertising on websites or through other Internet channels, you should consult with your legal counsel to ensure compliance with all such laws. This includes ensuring that the content of any banner ads or other advertisements contain no misrepresentations or misleading statements about DIRECTV-branded products or services, and that all material information is clearly and conspicuously disclosed to consumers, including a clear and conspicuous disclosure in close proximity to any offer of the material limitations and requirements associated with such offer. In March 2013, the FTC released staff guidance entitled “ .com Disclosures: How to Make Effective Disclosures in Digital Advertising.” This guidance takes into account the growing use of small screen devices by consumers, and provides examples of advertising that may be problematic, so should be reviewed by you and your counsel.
Your legal counsel can provide information and advice about other required disclosures in the on-line environment, but at a minimum, your on-line marketing should clearly and conspicuously provide your identity and contact information (to avoid confusion that the advertising was placed by DIRECTV), the nature of the products and services being offered, all material terms associated with that offer, and the types of information (including personally identifiable information) that you collect from and about consumers.
With regard to the collection of information, you should be certain to disclose the types of information collected passively from the consumer, such as through cookies, Internet Protocol (“IP”) addresses, web bugs, and other passive collection devices. Independent retailers should also fully disclose to consumers information about any third parties that help support, or otherwise obtain information from, the independent retailer’s Internet marketing activities (such as DoubleClick, Coremetrics, etc.). You should realize that the failure to fully disclose and otherwise properly handle information collection, use, and disclosure might violate any number of applicable state, federal, and/or foreign consumer protection and privacy laws. DIRECTV has the right to immediately terminate its Agreement with any independent retailer that DIRECTV believes might have engaged in illegal or inappropriate banner or other website advertising.
Independent retailers must also comply with all applicable laws and intellectual property rights when using search engines and search engine listings. In particular, independent retailers must observe all such laws and rights protecting DIRECTV’s company name, logos and/or trademarks. Independent retailers must not use DIRECTV’s marks in their web addresses or metatags, and must identify themselves as independent retailers that sell DIRECTV-branded products.
Finally, it is important to note that internet marketing cannot be used to generate consumer “inquiries” for subsequent telemarketing activities unless the e-mail, web-form, etc., clearly and conspicuously identifies your business and you obtain the consumer’s demonstrable consent to receive a follow-up telephone call from you about DIRECTV products or services. For more information on this topic, see Section I on Telemarketing above.
IV. Cooling-Off Laws
Federal, state and local jurisdictional laws govern the sale of goods or services at a consumer’s place of residence. Under the FTC Rule, 17 CFR 429, a buyer in a home solicitation sale must be given a “cooling off” period which consists of three business days during which he or she may cancel an agreement without obligation. The seller may not collect or retain any cancellation fee. The Federal Rule defines a door-to-door sale as the sale of consumer goods or services in which seller or his representative solicits the sale (including those in response to buyer invitation) and the buyer’s agreement or offer to purchase is made at a place other than the seller’s place of business. Many states have similar statutes which address sales that result from direct contact by the supplier at a place other than the seller’s place of business. It is important to note that several state home solicitation statutes also apply to sales that are conducted through telemarketing activities. Various local ordinances also apply to such sales activities, including peddler registration requirements. Similarly, some local municipalities prohibit door sales.
If you are conducting sales of goods or services which fall under these criteria, you should consult your legal counsel before undertaking any home solicitation marketing activities. At a minimum, in order to comply with the FTC Rule, state statutes and local ordinances, you must provide the buyers with all required documents and information. You should use a signed agreement or offer to purchase form that is signed by the buyer. This form should include a statement regarding the buyer’s right to cancel. Several states also require that the seller provide a Notice of Cancellation form that the buyer can complete and submit to the seller in the event he wishes to cancel the contract. One example of these forms is provided below; however, you must consult your legal counsel to ensure compliance with varied federal, state and local laws:
BUYER’S RIGHT TO CANCEL
You, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the attached notice of cancellation form for an explanation of this right.
NOTICE OF CANCELLATION (Date)
You may CANCEL this transaction, without any Penalty or Obligation, within THREE (3) BUSINESS DAYS from the above date.
If you cancel, any property traded in, any payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within TEN (10) BUSINESS DAYS following receipt by the seller of your cancellation notice, and any security interest arising out of the transaction will be cancelled.
If you cancel, you must make available to the seller at your residence, in substantially as good condition as when received, any goods delivered to you under this contract or sale, or you may, if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller’s expense and risk.
If you do make the goods available to the seller and the seller does not pick them up within 20 days of the date of your Notice of Cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller, or if you agree to return the goods to the seller and fail to do so, then you remain liable for performance of all obligations under the contract.
Contractor/Business Partner Agreement Addendum
Charter Spectrum and Time Warner Cable Agreement:
In order to be a part of the Comlink program and have the ability to sell Charter Spectrum/Time Warner Cable products, Contractors and Business partners, and their staff or Independent Contractors, cannot have an existing relationship or contract with Charter Spectrum and Time Warner Cable. All Contractors and Business partners who have had a previous relationship with Charter Spectrum and Time Warner Cable and were terminated from their programs for any reason are not eligible for this Charter Spectrum/Time Warner Cable program or any program with Comlink Total Solutions Corp.
All Contractors and Business partners must provide full rosters of all staff that will be selling Charter Spectrum/Time Warner Cable products. This Roster will need to be updated immediately and emailed to admin@comlinksmb.com anytime there are changes to it. The roster that you provide will be fully vetted by Charter Spectrum/Time Warner Cable. If in anyway a Contractor or Business Partner is discovered not providing accurate information regarding their eligibility status with Charter Spectrum/ Time Warner Cable they will be immediately terminated from the program. This includes providing inaccurate misleading information regarding the roster for the Contractor/Business partner.
Charter Spectrum/Time Warner Cable Rules of engagement.
1. All Contractor/Business Partners are not permitted to door knock residential homes offering Charter Spectrum/Time Warner Cable products and services.
2. All Contractor/Business Partners are not permitted to sell Charter Spectrum/Time Warner Cable products and services to MDU’s (Multi Dwelling Units) who have an existing relationship with Charter/Time Warner Cable.
3. All Contractor/Business Partners must get approval from Comlink Total Solutions Corp for any print or Digital Media ads in regards to the Charter Spectrum/Time Warner Program.
For additional details please reference your original Comlink Contractor/Business partner agreement. For questions or concerns please email admin@comlinksmb.com 1 800 590-8644.
CONTRACTOR NON-EMPLOYEE AGREEMENT
1. The Contractor is not an employee of Comlink, but is an independent contractor.
2. The Contractor must comply with all of the rules and regulations for Comlink and each of its Telecom partners or subsidiaries.
a. For a full list of rules and regulations, see the rules and regulations section of the comlinkportal.com website.
3. The Contractor will be compensated for all contracted service provider installed sales properly submitted through the Comlink portal.
a. Comlink only compensates contractors for installed sales.
b. All independent contractor’s commissions are subject to Comlink receiving funds from the Service provider /carrier.
(1) See Comlink approved provider list in the Comlink Compensation structure for more details.
c. Once commissions have been received, funds will be dispersed to the Contractor via Direct Deposit on Comlink’s payroll funding date.
d. See the Comlink compensation guide for full detail on carrier compensation.
4. All sales are subject to carrier charge back time frames.
a. Charge backs are sales that are installed but cancelled within a set period of time by each individual telecom carrier.
b. If Charge backs occur said contract will be deducted the charge backed commissions from future commissions or be required to reimburse Comlink for charged back commissions within thirty (30) days of the charge back.
c. A terminated contractor’s final commission payments will be held in escrow until the allotted carrier charge back window has expired.
(1) Once the charge back window expired, any remaining funds will be released to the contractor for final payment.
5. Comlink has the right to:
a. terminate this agreement if it is determined that the Contractor is:
(1) committing fraudulent or illegal activity towards new or existing customers or potential customers.
(2) violating any of the rules and regulations for Comlink or its Telecom carrier partners or subsidiaries;
(3) doing anything considered detrimental to Comlink’s business and reputation.
b. withhold and forfeit any commissions from the Contractor if:
(1) fraudulent or illegal practices, including but not limited to marketing practices and selling practices, were used to obtain those commissions.
(2) obtained in violation of the rules and regulations for Comlink or any of its Telecom partners or subsidiaries.
6. This agreement is subject to change at any time without written notice provided by Comlink.
INTERNATIONAL CONTRACTOR NON-EMPLOYEE AGREEMENT
1. The International Contractor is not an employee of Comlink, but is an independent contractor.
2. The Contractor must comply with all of the rules and regulations for Comlink and each of its Telecom partners or subsidiaries.
a. For a full list of rules and regulations, see the rules and regulations section of the comlinkportal.com website.
3. The International Contractor will be compensated for all contracted service provider installed sales properly submitted through the Comlink portal.
a. Comlink only compensates international contractors for installed sales.
b. All international independent contractor’s commissions are subject to Comlink receiving funds from the Service provider /carrier.
(1) See Comlink approved provider list in the Comlink Compensation structure for more details.
c. Once commissions have been received, funds will be dispersed to the International Contractor via Direct Deposit on Comlink’s payroll funding date.
d. See the Comlink compensation guide for full detail on carrier compensation.
4. All sales are subject to carrier charge back time frames.
a. Charge backs are sales that are installed but cancelled within a set period of time by each individual telecom carrier.
b. If Charge backs occur said contract will be deducted the charge backed commissions from future commissions or be required to reimburse Comlink for charged back commissions within thirty (30) days of the charge back.
c. A terminated international contractor’s final commission payments will be held in escrow until the allotted carrier charge back window has expired.
(1) Once the charge back window expired, any remaining funds will be released to the international contractor for final payment.
5. Comlink has the right to:
a. terminate this agreement if it is determined that the International Contractor is:
(1) committing fraudulent or illegal activity towards new or existing customers or potential customers.
(2) violating any of the rules and regulations for Comlink or its Telecom carrier partners or subsidiaries;
(3) doing anything considered detrimental to Comlink’s business and reputation.
b. withhold and forfeit any commissions from the Contractor if:
(1) fraudulent or illegal practices, including but not limited to marketing practices and selling practices, were used to obtain those commissions.
(2) obtained in violation of the rules and regulations for Comlink or any of its Telecom partners or subsidiaries.
6. The International Contractor shall open and maintain a bank account within the United States or its territories for receipt of payment of all commissions during the period of time this agreement is in effect.
a. The International Contractor shall pay any and all wire transfer fees or other expenses, including, but not limited to any taxes that may be due and owing on amounts received or disbursed.
7. This agreement is subject to change at any time without written notice provided by Comlink.
MUTUAL NON-DISCLOSURE AGREEMENT
The Parties to this Agreement, in consideration of the mutual covenants contained herein, hereby agree as follows:
1. CONFIDENTIAL INFORMATION.
a. For the purposes of this Agreement, “Confidential Information” will include all information designated as confidential or which could reasonably be assumed to be confidential, including without limitation, any and all present or future product or service information, technical or financial information, business strategies, practices, procedures, customer names or related data, details of any contracts entered into by the parties, advertising and promotional ideas or material, other business information, technical information, documents, drawings, models or inventions that may be disclosed by one party (“Disclosing Party”) to the other party (“Recipient”) during the term of this Agreement, whether such disclosure is in written, oral, el electronic, website-based or other form.
2. TERM.
a. This Agreement will commence on the Effective Date and will continue for three (3) years, unless earlier terminated.
b. This Agreement may be terminated by either party with thirty (30) days prior written notice to the other.
c. The Agreement will automatically renew for another three (3) year term upon expiration of the initial term or the most recent renewal term, unless terminated as set forth in Section 2.b.
d. Upon termination, the Recipient will cease all use of the Confidential Information provided by the Disclosing Party and, upon request, will return or destroy such confidential Information.
e. The terms and conditions of this Agreement will survive termination with respect to Confidential Information disclosed prior to termination.
3. PURPOSE.
a. The Recipient may use the Confidential Information it receives only for the purpose of exploring a possible mutually agreeable business arrangement between the parties.
4. CONFIDENTIALITY.
a. The Recipient and its representatives will maintain the secret and confidential nature of the Confidential Information it receives, will permit access only to employees with a need to know, and will prevent access to it by third parties.
b. Further, the Recipient will, at a minimum, use the same degree of care that it uses with respect to its own confidential information to prevent its use or disclosure, but in no event will Recipient use less than reasonable care.
5. EXCEPTIONS.
a. This Agreement imposes no obligation upon the Recipient with respect to the following categories of information:
(1) information that at the time of disclosure to Recipient was in the public domain (other than as a result of any breach of this Agreement);
(2) information that was known by the Recipient prior to receipt from the Disclosing Party (as proven by Recipient’s written records);
(3) information that, after disclosure to the Recipient, becomes known to the general public through no act or omission of Recipient; or
(4) information that is disclosed to the Recipient without an obligation of confidentiality by a third party having the legal right to do so (as proven by its written records).
b. The Recipient may disclose Confidential Information as required by court order, but only to the extent required by such order; provided, however, that the Recipient provides notice to the Disclosing Party of such requirement to disclose, unless such notice is lawfully prohibited by the requesting governmental entity.
6. OWNERSHIP.
a. The Recipient acquires no rights under this Agreement to any Confidential Information of the Disclosing Party, and no right under any patent, copyright or trademark is granted by Disclosing Party to Recipient under this Agreement.
7. DISCLAIMER.
a. THE DISCLOSING PARTY MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND, IN PARTICULAR WITH RESPECT TO THE NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER RIGHTS OF THIRD PARTIES, EXCEPT THE DISCLOSING PARTY DOES REPRESENT THAT IT HAS THE RIGHT TO DISCLOSE THE CONFIDENTIAL INFORMATION TO THE RECIPIENT.
8. RELATIONSHIP.
a. This Agreement does not create any joint venture, partnership or other fiduciary relationship between the parties.
b. Neither this Agreement nor the disclosure or receipt of Confidential Information will constitute or imply any promise or intention to make any purchase of products or services by either party or any commitment by either party with respect to the present or future marketing, or use of any product or service of the other, nor will it constitute any promise by either party to have any further transactions whatsoever with the other.
9. EQUITABLE RELIEF.
a Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party is entitled to seek equitable relief, including without limitation, injunction and preliminary injunction, in addition to other remedies.
10. GENERAL CONDITIONS.
a. Governing Law. This Agreement will be construed in accordance with Florida law without reference to conflict of laws principles. For any disputes arising out of this Agreement, the parties hereby consent and submit to the exclusive jurisdiction of the federal and state courts sitting in Lee County, Florida.
b. Entire Agreement. This Agreement sets forth the entire understanding and agreement between the parties and supersedes all proposals or communications, oral or written, between the parties relating to the subject matter of the Agreement. No modification of the Agreement will be binding unless it is in writing and is signed by authorized representatives of both parties.
c. Waiver. No waiver of any right under this Agreement will be deemed effective unless contained in writing signed by a duly authorized representative of the party waiving such right, and no waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future right arising under this Agreement.
d. Severability. If any provision in this Agreement is invalid or unenforceable, that provision will be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain in full force and effect.
e. Assignment. Neither party may assign this Agreement without the express written consent of the other party, which will not be unreasonably withheld or delayed.
f. Notices. Any notice required or permitted to be sent under this Agreement will be delivered by hand, by overnight courier, by facsimile, or by registered mail, return receipt requested, to the address of the parties first set forth in this Agreement or to such other address of the parties designated in writing in accordance with this Section.
g. Execution in counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but such counterparts will together constitute but one and the same document. Facsimile copies of this Agreement are given the dignity of original documents.
