Marketing and Sales Agreement

Last Modified: February 20, 2018

These Terms and Conditions for Partner Agreement, together with the Partner Agreement and any exhibits or addendums, schedules, policies, or other supplemental documents incorporated herein by reference and published by Cytracom from time to time (collectively, the “Agreement”) constitutes the entire agreement between Cytracom, LLC (“we,” “us” or “Cytracom”) and the party identified in the associated Partner Agreement (“Representative”) regarding Cytracom’s Services (defined herein).

Cytracom is a Hosted PBX and VoIP provider that owns, develops and markets voice and data products and services as identified in Attachment A to the Partner Agreement (“Cytracom Services”). Cytracom and Representative desire that the parties enter into an agreement whereby Representative shall market the Services to end user customers (“Customers”) in the continental United States (“Territory”) pursuant to the terms and conditions of this Agreement.

1. DEFINITIONS. In addition to other terms defined herein, capitalized terms in this Agreement shall have the following meanings.

1.1 “ Confidential Information” shall mean any and all technical and non-technical information provided by either party to the other, including that regarding either party or their affiliates, their business activities and operations or those of their customers and suppliers, and their trade secrets (including their customer lists, prospective customers, rates, price lists, network configuration, traffic volume, financial information, source code underlying the object code versions of the Software, service, processes, methods, knowledge, research, development or other information of a confidential and proprietary nature), and which at the time of disclosure is either (a) marked as being “confidential” or “proprietary,” (b) otherwise not generally known or readily ascertainable by proper means by third parties, including competitors or the general public, and includes trade secrets, or (c) under the circumstances of disclosure should reasonably be considered as the confidential or proprietary information of the disclosing party. Confidential Information shall not include information that is (i) already known by the recipient party without an obligation of confidentiality, (ii) publicly known or becomes publicly known through no unauthorized act of the recipient party, (iii) rightfully received from a third party without an obligation of confidentiality, (iv) approved by the other party for disclosure, or (v) is required to be disclosed pursuant to court order or order of governmental authority, provided that the receiving party shall use reasonable efforts to provide the disclosing party advance notice of any such disclosure and to permit and assist the disclosing party to intervene in any relevant proceedings to protect the disclosing party’s interests.

1.2 “ Customer” shall mean a company or other entity that purchases the Services as a result of this Agreement and is subject to the terms of the Cytracom Customer Agreement.

1.3 “ Documentation” shall mean any documents, including user manuals, relating to the Services that are made available to Customer by Cytracom or Representative in any medium or manner.

1.4 “ Customer Agreement” shall mean Cytracom’s standard Customer Agreement as modified by Cytracom from time to time. All Customer Agreements will be between the Customer and Cytracom. Representative will not be a party to the Customer Agreements.

1.5 “ Marks” shall mean the trademarks, service marks, trade names, logos and other identifiers of a party’s products and services.

1.6 “ Proprietary Rights” shall mean any and all rights existing from time to time in any jurisdiction under copyright law, patent law, moral rights law, trade secret law, confidential information law, trademark law, unfair competition law or other similar rights.

1.7 “ Software” shall mean any proprietary software owned or licensed by Cytracom, or sublicensed by Cytracom under a Customer Agreement, which is provided to Customer or otherwise used by Customer in conjunction with the Services, and any copy, translation, modification, enhancement or other derivative work thereof made by Cytracom or any other third party, as well as any Documentation related thereto.

2. LICENSE GRANT

2.1 Representative License. Cytracom grants to Representative a revocable, nonexclusive, nontransferable, limited license within the Territory to market the Services to Customers for use only under the Customer Agreements.

2.2 Representative Duties. Representative shall:

(a) use only promotional material approved by Cytracom for purposes of promotion of the Services and avoid making any representations, warranties or guarantees regarding the Services except as specifically authorized by Cytracom. Representative agrees that it shall strictly adhere, and it shall ensure that its employees and agents strictly adhere, to the directives of Cytracom with respect to the content of any advertising or promotional materials concerning the Services;

(b) exert commercially reasonable efforts to promote sales and marketing to prospective Customers within the Territory. Commercially reasonable efforts shall include, without limitation (i) obtaining commitments and orders for the Services from Customers, (ii) obtaining Customer Agreements and order forms, credit applications, and/or other documentation from Customers as necessary to transfer ownership or establish an account with Cytracom, (iii) educating Customers and prospective Customers as to the benefits and advantages of using the Services, and (iv) providing such other services and assistance as Cytracom reasonably requires in furtherance of Representative’s obligations hereunder;

(c) comply with instructions provided by Cytracom regarding the subscription process for Customers, as updated by Cytracom from time to time;

(d) not alter in any way the terms and conditions of the Customer Agreements or represent to prospective Customers that such terms and conditions are subject to revision or are otherwise non-enforced or unenforceable;

(e) verify with Cytracom the availability and pricing structures of the Services in applicable jurisdictions before offering them to prospective Customers in any applicable jurisdiction;

(f) exert commercially reasonable efforts to assist Cytracom (i) in the collection of past-due invoices payable by Customers who subscribe to the Services as a direct result of Representative’s efforts (“Representative-Sold Customers”) and (ii) in ensuring effective subscription, registration, and provisioning of Representative-Sold Customers;

(g) strictly comply with all applicable laws and regulations in the Territory, or any nation, or political subdivision thereof, in which it engages in business in performing its responsibilities hereunder, including, but not limited to, the use, licensing, distribution, promotion, and marketing of the Services;

(h) conduct its business, and ensure that its employees and agents conduct their business, in a professional and lawful manner so as to maintain and increase the goodwill and reputation of Cytracom and the Services;

(i) not in any way disparage Cytracom, its products, or its agents or employees, including, without limitation, taking any action or making any statement the intent or reasonably foreseeable effect of which is to impugn or injure the reputation or goodwill of Cytracom or any of its agents or employees; and

(j) assist Cytracom in reporting performance under this Agreement and in developing mechanisms for measuring performance under this Agreement.

2.3 Limits of Authority. Representative shall not, without prior written approval from an authorized representative of Cytracom, take any of the following actions: (i) waive, alter, or change any provision of any Customer Agreement; (ii) modify or extend the amount of or time for the payment of any charge or fee required under any Customer Agreement; (iii) enter into any contract with Customers with respect to the Services; (iv) incur any expense or obligation in the name of Cytracom; or (v) use Cytracom’s Marks in connection with its business other than in the manner expressly authorized by Cytracom.

2.4 Audit. All business records maintained by Representative relating to the Services are subject to inspection at any reasonable time by Cytracom’s authorized representatives.

2.5 Personnel. Any act or omission or failure to act on the part of any employee, agent or contractor of Representative shall be deemed an act or omission or failure to act on the part of Representative.

3. ORDERS AND CYTRACOM RESPONSIBILITIES

3.1 Orders. Representative shall submit orders for Services to Cytracom, in accordance with the procedure made available on the Cytracom website. Orders shall not be binding on Cytracom unless and until accepted by Cytracom. Cytracom reserves the right to accept or reject new Customers at its sole discretion. Any additional or conflicting terms stated by Representative that are contrary to the terms and conditions of the Customer Agreement shall be void and of no effect. Cytracom will provision the Representative-Sold Customers to receive the Services as set forth on the written order in accordance with Cytracom’s customary procedures.

3.2 Prices. Services shall be priced according to Cytracom’s latest price list, unless otherwise agreed to in writing by Cytracom. All prices are subject to change, at Cytracom’s sole discretion. Changes in pricing will be posted on Cytracom’s website and shall be effective the day following the posting of such revised pricing.

3.3 Expenses. Representative shall pay all of its own expenses in connection with the solicitation of sales under this Agreement. Cytracom’s sole obligation is to pay the applicable Sales Commissions (as hereinafter defined).

3.4 Support. Cytracom will provide all support and maintenance services directly to the Customers.

3.5 Training and Materials. Cytracom may from time to time develop and provide Representative with promotional materials, product and technical information, and training relating to the Services.

3.6 Representative Customers. To the extent that Representative is engaged in providing additional managed services to customers and such services are outside of the telecommunications field (“Representative Services”), and Cytracom is aware of the nature of Representative Services, Cytracom will refrain from directly marketing or offering to any Representative-Sold Customers services that compete with or are substantially similar to Representative Services. Cytracom will not share any information regarding Representative-Sold Customers, or prospective Customers identified by Representative, with third parties for the purpose of allowing such third parties to directly market or offer to such Representative-Sold Customers or prospective Customers services that compete with or are substantially similar to Representative Services. Notwithstanding the foregoing, Cytracom is permitted to share information regarding Representative-Sold Customers to third parties for general marketing purposes.

4. FEES AND PAYMENT TERMS

4.1 Fees. The Customers will directly pay all fees to Cytracom. In turn, Cytracom agrees to pay Representative the commissions defined herein.

4.2 Commissions. Cytracom will pay Representative a flat rate for certain Services paid for by Representative-Sold Customers, at the rates listed on Attachment B to the Partner Agreement (“Commission”). Commissions will be based solely on revenue for the Services and shall not be based on any other monthly recurring charges, non-recurring charges, taxes, USF, E911, or other FCC or regulatory imposed charges. Commissions will be paid to Agent within thirty (30) days after the end of the calendar month in which they are earned. Cytracom will provide to Representative a written statement supporting the amount of the Commissions paid as soon as practicable following the end of the calendar month in which the Commissions were earned. Cytracom will assign to Representative an identification code (“Referral Code”) for identification and tracking of Representative-Sold Customers.

4.3 Collected Amounts. Representative acknowledges that Commissions are based solely on revenues actually received by Cytracom from Representative-Sold Customers. Representative acknowledges that any changes to the monthly subscription of any Representative-Sold Customers, or to the pricing schedules for the applicable Services, during the term of this Agreement may result in a decrease in the amount of the Commission for such Representative-Sold Customers. With respect to any overdue or unpaid amounts by Representative-Sold Customers that are deemed by Cytracom in its sole discretion to be uncollectible or are outstanding for ninety (90) days or more (“Uncollected Invoice”), Cytracom shall be entitled in its sole discretion to (i) withhold from or offset against Representative’s future Commissions an amount equal to Commissions paid on any Uncollected Invoice, or (ii) request that Representative refund to Cytracom the amount of any Commissions paid on any Uncollected Invoice.

4.4 Offset. Cytracom at any time may offset against all Commissions accrued or to accrue to Representative any indebtedness, payment or liability of Representative or its affiliates (including indebtedness resulting from advances and indemnification obligations by Representative described herein) arising in connection with Representative’s responsibilities under this Agreement that, in the opinion of Cytracom, are due or owed by Representative to Cytracom. Such withholding and setting off shall not create any cause of action against Cytracom.

4.5 Taxes. Each party shall be responsible for the payment of any and all of its own income taxes and income tax withholding or other taxes accessed against it based on its performance under this Agreement.

5. TERM AND TERMINATION

5.1 Term. The term of this Agreement shall begin on the Effective Date and shall continue until the Services are discontinued in the Territory, unless terminated early as provided below.

5.2 Early Termination. Either party may terminate this Agreement early as follows:

(a) Upon providing written notice to the other party no less than ten (10) days prior to termination, without cause;

(b) Immediately upon written notice to the other party in the event of a material breach by the other party (i) of the confidentiality or intellectual property ownership terms set forth herein, or (ii) of any obligation set forth herein, with written notice to the other party, if such material breach is not cured within fifteen (15) days after receipt of such written notice; or

(c) Immediately in the event that the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium, or becomes incapacitated or guilty of a felony or crime of similar gravity, including but not limited to fraud or misrepresentation.

5.3 Post Termination Obligations. Upon termination or expiration of this Agreement, the rights and duties shall be as follows: (a) All rights and licenses granted to Representative under this Agreement shall terminate immediately and Representative shall immediately discontinue all promotion of the Services and all use of any Documentation, sales and marketing material and the like; (b) Representative shall discontinue all representation or statements from which it might be inferred that the relationship as identified in this Agreement exists between Representative and Cytracom and shall cease to promote, solicit orders for or procure orders for Services; (c) Representative shall immediately stop using all Cytracom Marks, and shall not use any mark confusingly similar to any Cytracom Marks; (d) Within five (5) business days following the termination or expiration of this Agreement, Representative shall return to Cytracom all copies of the Documentation, sales and marketing material and the like in whole or in part provided by Cytracom and destroy any additional copies (electronic or otherwise) of such software or other materials made by Representative; (e) Within five (5) business days following the termination or expiration of this Agreement, Representative shall provide to Cytracom all files, lists, and other materials containing information regarding Cytracom Customers and identified prospective Customers. All Customers shall remain Customers of Cytracom regardless of whether Representative’s relationship with Cytracom is terminated. Unless this Agreement is terminated by Cytracom pursuant to Section 5.2(ii) or 5.3(iii), all Commissions will continue to be paid to representative for revenues received from Representative-Sold Customers for Services.

5.4 Survival. The provisions of Sections 5.3, 5.4, 6, 7, 8.2-8.6, and 13 shall survive the expiration or termination of this Agreement by either party for any reason. All other rights and obligations under this Agreement which by their nature should survive, will remain in effect after termination or expiration hereof.

6. PROPRIETARY RIGHTS.

6.1 Ownership. Representative acknowledges and agrees that Cytracom and its subsidiaries and/or licensors own and retain all Proprietary Rights in the Software, the Services, including the business model, technology, and proprietary concepts embodied in and relating to the Services, the Cytracom web sites, the Cytracom Marks, the Cytracom Confidential Information, Documentation, training materials, collateral or other related materials licensed or provided under this Agreement, and any copies, modifications, adaptations, derivative works, improvements and enhancements thereof, by whomever produced, and all patents, trademarks, copyrights, trade secrets and other intellectual property rights therein (collectively, “ Cytracom IP”). Representative does not acquire any rights, express or implied, in the Cytracom IP other than those specified in this Agreement. Representative hereby waives any claim that it may have had or has to title and ownership of any Proprietary Rights in and to the Cytracom IP. Representative shall not remove any copyright or similar notices on the Software and Documentation.

6.2 Joint Materials. Cytracom shall have the right to use Representative’s Marks on the Cytracom website to identify Representative as a marketer of the Services. Representative must obtain express written agreement from Cytracom prior to the use of any marketing and promotional materials using Cytracom’s Marks and Cytracom must provide express written approval of all such materials. All Marks will be represented accurately and without defacement. Except as expressly authorized herein, the parties will not use each other’s Marks. Each party retains all rights and title in and to the Marks held by such respective party and upon termination of the Agreement, each Party shall immediately cease use of the other Party’s Marks.

7. CONFIDENTIALITY. During the term of the Agreement and for three (3) years thereafter, each party will hold in confidence and will not use, reproduce, distribute, transmit, or disclose, directly or indirectly, the other party’s Confidential Information and may only disclose the other party’s Confidential Information to its employees or third party contractors with a need to know the information for the implementation of this Agreement and who are under a written obligation to abide by the confidentiality terms of this Agreement. Without limiting the foregoing, each party agrees that it will exercise the highest standard of care in protecting the other party’s Confidential Information. Confidential Information of Cytracom includes, but is not limited to, customer lists, price sheets, price quotes, information regarding Cytracom’s facilities, information relating to Cytracom Customers or prospective Customers, marking and business plans, projections, and all information developed or provided by Representative or Cytracom related to the Customers or the Representative-Sold Customers.

8. WARRANTIES, LIMITATIONS, AND INDEMNIFICATIONS

8.1 Customer Warranty. All warranties with respect to the Software or Services delivered to the Customer run directly to the Customer under the Customer Agreements. Representative shall not make any warranty on Cytracom’s behalf other than those which are consistent with Cytracom’s standard Customer Agreements.

8.2 Disclaimer. CYTRACOM DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OR SERVICES, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY REPRESENTATIVE OR THE CUSTOMER. NEITHER CYTRACOM NOR ITS SUPPLIERS MAKES ANY REPRESENTATION REGARDING THE ACCURACY, COMPLETENESS OR ERROR-FREE NATURE OF THE SOFTWARE. CYTRACOM IS NOT THE CREATOR OF THIRD PARTY SOFTWARE AND/OR THIRD PARTY DATABASES AND DOES NOT GIVE ANY WARRANTY, EXPRESS OR IMPLIED, IN RELATION TO THOSE ITEMS. NEITHER CYTRACOM NOR THE THIRD PARTY LICENSORS SHALL BE LIABLE FOR ANY DELAY, FAILURE IN PERFORMANCE OR INTERRUPTION OF SERVICES RESULTING DIRECTLY OR INDIRECTLY FROM ANY CAUSE BEYOND ITS REASONABLE CONTROL. IN NO EVENT SHALL CYTRACOM BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICES, THE USE OF OR INABILITY OF ANY CUSTOMER TO USE THE SERVICES, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICES, ANY LOSS OF CUSTOMERS, LOSS OF BUSINESS OPPORTUNITIES, OR PERCEIVED REPUTATIONAL DAMAGE RESULTING FROM THE USE OF AND/OR INABILITY TO USE THE SERVICES.

8.3 Cytracom Indemnification. Subject to all exclusions and limitations provided herein, Cytracom shall indemnify Representative against, and hold Representative harmless from, all liabilities, claims, demands, costs and judgments (including reasonable attorney’s fees) and causes of action arising out of or resulting from: (i) any breach by Cytracom of any of its obligations under this Agreement, or (ii) the negligence or willful misconduct of Cytracom.

8.4 Representative Indemnification. Representative shall indemnify Cytracom against, and hold Cytracom harmless from, all liabilities, claims, demands, costs and judgments (including reasonable attorney’s fees) and causes of action arising out of or resulting from: (i) any breach by Representative of any of its obligations under this Agreement, or (ii) the negligence or willful misconduct of Representative.

8.5 Indemnification Procedure. The party seeking indemnification (“Indemnitee”) shall be obligated to give the other party (“Indemnitor”) prompt notice of any event giving rise to indemnification obligations of the Indemnitor and shall permit the Indemnitor the opportunity to defend and settle such potential or actual claim or demand.

8.6 LIMITATION OF LIABILITY. EXCEPT FOR ANY LIABILITY UNDER SECTIONS 6 AND 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS SUBSIDIARIES, ITS ASSOCIATED COMPANIES, OR LICENSORS BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL, PROFITS OR SAVINGS, LOSS OF DATA, DOWNTIME, DAMAGE TO OR REPLACEMENT OF EQUIPMENT AND PROPERTY ARISING FROM CLAIMS BASED IN WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT TORT), OR OTHERWISE IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, OR NON-PERFORMANCE OF ANY SERVICES PROVIDED HEREUNDER, OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT, EVEN IF SUCH PARTY, ITS SUBSIDIARIES, ITS ASSOCIATED COMPANIES, OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. EXCEPT FOR ANY LIABILITY UNDER SECTIONS 6 AND 7, REPRESENTATIVE AGREES THAT CYTRACOM’S LIABILITY HEREUNDER FOR DAMAGES SHALL NOT EXCEED THE TOTAL FEES PAID BY REPRESENTATIVE-SOLD CUSTOMERS TO CYTRACOM FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ACTIONABLE CLAIM GIVING RISE TO THE LIABILITY.

9. GENERAL PROVISIONS

9.1 Independent Contractor. Representative shall not have any right or authority, either express or implied, to assume or create, on Cytracom’s behalf, any obligation or responsibility of any kind or nature. Cytracom and Representative are independent contractors. Neither party is or shall claim to be a legal agent of the other, and neither shall have the right or authority to create any obligations for the other. This Agreement is not intended to constitute, create, give effect to or otherwise recognize a joint venture, partnership, or formal business entity of any kind between the parties.

9.2 Mediation. In the event any dispute or claim arises between Representative and Cytracom out of or relating to this Agreement that cannot be resolved informally between the parties, the matter will be submitted to a mutually agreeable and recognized mediation service and Representative and Cytracom will jointly participate in the mediation process. If settlement cannot be reached through mediation, Representative and Cytracom will have the right to take such action as deemed appropriate, subject to Section 9.3.

9.3 Arbitration. Cytracom and Representative agree to arbitrate any and all disputes and claims arising out of or relating to this Agreement that remain unresolved following mediation under Section 9.2. The arbitration shall be administered by the American Arbitration Association (“AAA”) and governed by the AAA’s Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”), as modified by this Agreement. The arbitrator’s decision will be based on the plain meaning of the relevant documents and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides, or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

9.4 Severability. In the event any portion of this Agreement is held legally invalid or unenforceable, the remaining portions will remain valid and enforceable.

9.5 Entire Agreement. This Agreement, including all exhibits or addendums, or other supplemental documents incorporated herein by reference, as well as all future modifications, constitutes the sole agreement between Cytracom and Representative relating to the subject matter hereof and supersedes all previous writings and understandings.

9.6 Assignment. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. Any such assignment shall inure to the benefit of and be binding upon the assignee. Cytracom may assign this Agreement in connection with the sale of all or substantially all of its assets, or in connection with a merger or consolidation into or with another company provided that any such assignment shall inure to the benefit of and be binding upon the assignee.

9.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, United States of America, excluding its conflict of laws principles.

9.8 Force majeure. Both parties shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties as may occur in spite of the party’s best efforts. However, the party whose performance is delayed or affected shall use good faith efforts to minimize the effects of such delay.

9.9 Waiver. No failure or delay by any party in exercising any right hereunder shall operate as a waiver.

9.10 Changes to this Agreement. The Agreement may not be amended or modified except in writing, signed by both parties.

9.11 Interpretation. Neither this Agreement in its entirety nor any provision herein shall be construed against either party as the drafter or originator thereof. In the event of any inconsistency between this Agreement and the terms of any attachment or addendum, the terms of the attachment or addendum shall govern.

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