Affiliate Terms of Service

2.   Representative shall represent Company in a sales territory comprising the following geographic area: contiguous 48 (FORTY-EIGHT) states of the continental United States, which area shall comprise Representative's "Territory." Representative shall perform services for the Company pursuant to the terms and conditions set forth below and accepts such engagement on those terms.

3.  Using its existing internet website, Representative will display a photograph of the Product supplied by the Company as a digital file. Representative shall create a clickable link to additional information concerning the capabilities of the Product. The text of the link narrative shall be supplied by the Company. Its final wording shall be subject to suggestion for revisions by Representative with respect to harmonization of such text to the narratives supplied by Representative with respect to other products sold on its website and reasonable consideration by the Company as to suggested revisions. However, because the Product is a complex, computer-controlled electronic device as to which Company has operational knowledge superior to that of Representative, Company shall retain the final authority as to the narrative descriptive text which Representative may use in connection with Representative's sale of the Product.

4.   Representative will promptly forward to Company each order secured, but in no event shall electronic transmittal by the Representative be made more than 24 hours following Representative's receipt of an order accompanied by verified credit card authorization from Representative's clearing bank. 5.   Representative's authorization is limited solely to securing orders for the Product from residential purchasers within the Territory on prices and terms specified on Representative's website reached by agreement between Company and Representative.

6.   All orders obtained by Representative and submitted to the Company are subject to acceptance by Company and shall be without change, modification, alteration, condition, or expres-sion of warranty of any kind different from or contrary to the warranty information expressed in the descriptive narrative text appearing on Representative's website.

7.   Representative's customer service personnel shall not initiate any "cold canvass" telephone solicitations of the public regarding purchase of the Product without specific written instruction and authorization of the Company.

8.   Representative is not authorized to commit, legally bind, or otherwise obligate Company in any way other than through the use of the descriptive narrative text appearing on Representative's website and the acceptance of a purchase request supported by sufficient customer funds.

9.   All expenses of Representative, including, but not by way of limitation, its personnel costs, server charges, and other costs and fees of Representative resulting from the operations and maintenance of its website shall be at the sole cost and expense of Representative, and shall not be reimbursed by Company.

10. Upon receiving and accepting an order from Represen-tative, Company will cause arrangements to be made for the Product to be shipped by common carrier delivery, insured at the expense of the Company, to the address specified by the Representative's customer. Representative shall be responsible for providing only commercially reasonable and legally-compliant post-customer-order support commensurate with the level of support provided with respect to other products sold by Representative through its website. Post-delivery support and/or installation assistance to the customer in connection with the Product shall be the obligation of the Company under this Agreement and in conformance with the descriptive narrative text. 

11. Representative will cooperate with and assist Company in every possible way to promote sales of the Company's Products and to secure orders from homeowners within the Territory, including designation of a contact within Representative's corporation with whom officers of the Company can discuss, and to whom they can communicate, their ideas for promoting and marketing the Product. Representative shall retain final approval for implementation of any promotional concepts developed as a result of such discussions and communications.

12. Representative shall promptly and expeditiously furnish to Company all information which Representative may receive in the course of conducting its business which may affect Company's policies, prices, or terms of sale, such as policies, prices, or terms of sale Representative learns of with respect to products which compete with the Company's Product. Representative shall also promptly and expeditiously furnish to Company all information which Representative may receive as customer or potential customer "feedback" and comment with respect to the Company's Product and/or its sales literature as available on the EcoloBlue website, which may have bearing on customers' or potential customers' dis-satisfaction with any aspect of the design, specifications, or function of the Company's Product or its product literature.

13. Representative will comply with any and all applicable laws, statutes, rules, regulations, and ordinances at Represen­tative's own cost and expense including, without limitation, all applicable licensing and registration requirements pertinent to the Representative itself, as opposed to the Company's Product.

14. Representative represents and warrants to the Company that its execution of and performance under this Agreement will not violate or conflict with the terms of any other agreement by which Representative is legally bound.

            15. Nothing in this Agreement shall be construed as creating or intending to create third-party-beneficiary rights in any third party.

16. Representative shall not pay over as a credit, allow­ance, reduction, offset, or rebate any part of its commis­sions to a customer or to any person or organization acting on the behalf of, or under control of, any customer.

17. In consideration for Representative's services, Company shall pay a commission to Representative on all "Commissionable Orders." A Commissionable Order is (a) an order for the Product obtained as a result of Representative's work and efforts for which consideration has been tendered by the customer and which order and payment have been accepted by Company, pursuant to which order the Product or Products ordered have been received by the customer and have remained in the customer's possession in excess of the Returnable Period. As of the time of entry into this Agreement, the Returnable Period has been established as 20 (TWENTY) calendar days from the date of delivery to the customer, not counting the date on which delivery of the Product occurred. No commission shall be due or payable upon returns for any reason. If already paid, an appropriate credit or adjustment will be made in favor of Company.

18. Company shall pay Representative a commission in the amount of 20% or $[270] (TWO HUNDRED SEVENTY DOLLARS) for each EcoloBlue Model 28 unit sold at $[1350] (ONE THOUSAND THREE HUNDRED AND FIFTY) and retained by the customer pursuant to Paragraphs 2 through 16 above. No commission shall be due or payable, or if already paid by Company, a credit or adjustment will be made on commissions subsequently earned, upon products returned by customer within the Returnable Period or as to which the account of a customer is un-collected for any reason.

19. Commissions to which Representative is entitled under this Agreement shall be paid, subject to any credits or adjust­ments, on or before the 20th day of the month after the month in which the Returnable Period for the Product purchased in each sale of the Product expired. Commissions to which Represen-tative is entitled may be paid to Representative in advance, in the Company's sole discretion, on a sale-by-sale basis.

20. Representative represents that it is, or prior to the first sale by Representative of the Product, will become, duly licensed to sell the Products in each state within the Territory in which a sale is made, and that it possesses and can produce, upon request by Company, all necessary licenses and/or permits, that it is not barred therefrom due to any order of a court or any criminal action previously brought against Representative, and that all necessary licenses and permits will be maintained in force and effect at all times Representative secures or solicits orders for Company's products.

21. Representative agrees that for the duration of this Agreement, it will not, without Company's written consent, whether for compensation or without compen­sation, engage in, supervise, organize, invest in, nor carry on directly or indirectly, either on its own behalf or on behalf of any other person or entity, a business which competes with the Products sold by Company or directly or indirectly sell or otherwise deal in merchandise which competes with, or which is substantially similar to, the Product. Representative agrees it will not represent or otherwise become associated or affili­ated with any person manufacturing, selling, or dealing in products sold by any of Company's competitors, or competitive with, the Product (collectively, "Prohibited Activities"). Should Company determine Repre­sen­tative is involved in Prohibited Activities, Company may terminate this Agreement immediately, in which case Represen­tative forfeits all commissions due and voids the terms of Paragraphs 17 - 20 of this Agreement.

22. Representative shall not directly or indirectly, for compensation or otherwise, dis­close to any other person, firm, corporation or other entity the names and addresses of any clients of Company or purchaser of the Product, nor shall it directly or indirectly solicit any business relationship for personal benefit from any purchaser of the Product other than is offered to the general public through Representative's website, or induce or attempt to influence any person or entity with whom or which Company has a business relationship to alter that business relationship in any way or for any reason.

23. While employed or engaged by Company and at all times thereafter, Representative shall not disseminate or release to any third party any information regarding any of the following: (a) the methods and details relating to Company's sales of its Products; (b) any of Company's methods, business practices, pricing information, trade secrets, processes, ideas, systems, procedures, inventions, discoveries, concepts, software in various stages of development either by Company or a provider to Company, designs, drawings, specifications, models, data, documents, diagrams, flow charts, research, economic and financial analysis, business plans, developments, procedures, know‑how, policy manuals, form contracts and other techniques, plans, materials, forms, copyrightable materials and trade information that was obtained in the course of the negotiations of this Agreement or in the course of Representative's perfor­mance of this Agreement, in that all which is referred to in this Paragraph is among Company's "Confidential Information."

24. Sales Representative shall take all necessary and proper precautions against disclosure of any Company Confidential Information to unauthorized persons. Representa-tive shall keep the Company's Confidential Information in strict confidence and agrees not to disclose it to any unauthorized person or entity.

25. Upon termination of this Agreement, Representative shall cease all use of any of Company's Confidential Information and, at the request of Company, shall execute such documents as may be necessary to evidence its renunciation and abandonment of any claim thereto.

26. Representative recognizes and acknowledges that the restrictive covenants set forth in this Agreement are reasonable and properly required for the adequate protection of the business of Company. In the event that any such restrictive covenant is deemed to be unreasonable by a court of competent jurisdiction, Representative agrees and submits to the reduction of such restrictive covenant to such geographic extent or time period as the said court shall deem reasonable and adequate to protect the Company.

27. In the event Representative is found to be in viola-tion of the restrictive covenants set forth herein, Represen-tative agrees that the time limitation thereof shall be extended for a period of time equal to the period of time during which such breach or breaches by Representative occurred. In the event it is necessary to seek relief against such breach or breaches in any court, these restrictive covenants shall be extended for a period of time equal to the pendency of the proceedings before such court, including all appeals.

            28. Representative expressly agrees and understands that at no time during its relationship with Company is it acting as, nor has it been asked to act as, Company's servant or employee. Representative shall not represent itself to any person or entity to be (or, following termination of this Agreement, to have been) other than an independent contractor sales representative for Company.

29. Representative shall make no claim, whether orally or in writing, as to an attribute of the Product, either with respect to the Product itself or in terms of a comparison of the Product and a product, system, or device of another manufac-turer, distributor, or seller, unless such claim has been expressly previously authorized by the Company.

30. Company reserves the right, in its sole discretion, at any time and from time to time, to modify alter, improve, change or discontinue Product. Company further reserves the right to change its pricing or terms and conditions of sale for the Products upon reasonable advance notice to Representative. This Agreement, unless modified pursuant to the terms hereof, shall cover, pertain to and control such Product, pricing and terms as said Product, and/or its pricing and/or its terms of sale may be modified by Company.

31. In the course of Representative's performance here-under, Company may make available to Representative, or Representative may otherwise have access to, certain trade secrets and other proprietary or confidential information of Company ("Confidential Information"). Representative agrees that the secrecy of the Confidential Information must be main-tained. Confidential Information includes, but is not limited to, Company's strategic alliances with other equipment vendors, its customer lists, projects undertaken or expected to be undertaken by Company, sources of sales leads, secret designs and processes, coatings and other materials used in EcoloBlue Products, and the methods of connection and assembly of the parts and components in the Product. Any term of or provision of this Agreement to the contrary notwithstanding, Represen-tative may use the Confidential Information solely to perform its obligations hereunder and shall not disclose any such Confidential Information to any third party without Company's prior written consent, unless and until such Confidential Information becomes generally available to the public at large through no fault of Representative.

32. Representative agrees that the secrecy of the Confi­dential Information must be maintained. Representative promises and covenants that Representative will not, either during the term of this Agreement or after this Agreement terminates for any reason, disclose or publish any Confidential Information to anyone or use any Confidential Information on Representative's behalf or on behalf of any third party.

33. Following the termination of this Agreement, Repre­sentative shall promptly return to Company all Confidential Information that is in written or electronic form and shall retain no physical or digital copies or exemplars of such Confidential Information. In such instance of termination of this Agreement, Representative shall not thereafter use, nor shall it disclose to any third party, for any purpose whatso-ever, any Confidential Information provided by or on behalf of Company.

34. Representative agrees that if Representative violates any promise contained in this paragraph, Company will be irreparably harmed, that money damages would not be a sufficient remedy to make Company whole, and that Company, on behalf of itself or its officers or shareholders, shall be entitled to injunctive relief and any other equitable remedy in addition to all other remedies available at law. Representative agrees that Company shall also be entitled to recover Company's reasonable attorney fees, costs, and expenses incurred to enforce any provision of this Agreement.

35. Representative agrees to be liable for any breach of the confidentiality obligation by its employees or agents and agrees further that Company shall be entitled to equitable relief, including injunctive relief and specific performance, in addition to damages for business loss or harm to business of the Company, and all other remedies available to it, in the event of any breach of Paragraphs 23 through 27 and 31 through 33, above. The rights and obligations of the Parties under this Paragraph shall survive expiration or termination of this Agreement.

36. This Agreement sets forth all of the rights and obliga­tions of the Parties hereto. Except as expressly set forth in this Agreement, no payments shall be due or payable to Repre­sen­tative.

37. Either party may terminate this Agreement without cause at any time on thirty days written notice sent to the other party by Federal Express or similar overnight or next-day delivery courier, or by registered mail, certified mail with return receipt requested, or by e‑mail. The notice (if other than by e‑mail) shall be addressed to the other party at its address set forth in the heading in this Agreement unless that party has given written notice to the other of a change of that address. The thirty day period shall commence on the date shown on the appropriate postal authority or courier receipt, or, if e‑mail is used, the date of the e‑mail. The date on which this Agreement terminates shall be the Termination Date.

38. In the event of termination of this Agreement, Repre-sentative shall be entitled to commissions only as to Commis-sionable Orders secured by Representative for Products accepted by Company and which are delivered to customer and retained by customer after expiration of the Returnable Period, on orders which are placed by a customer solicited through the efforts of the Representative no more than 30 days prior to the Termination Date.

39. This Agreement shall be construed in accordance with the laws the State of Florida, without reference to or applica-tion of Florida's statutes, rules, or common law with respect to conflicts of law. Unless the parties mutually consent to arbi-tration, this Agreement shall be enforced only in the courts of the State of Florida, or in the United States District Court for the Southern District of Florida, and the parties consent to personal jurisdiction in any of those courts.

40. This Agreement shall supersede and replace all prior Agreements, practices, and understandings, oral or written, between the Parties and shall constitute the entire Agreement between the Parties.

41. This Agreement can be modified or changed only by a supplemental writing signed and dated by both Parties.

42. Company shall not be liable to Representative with respect to Company's delay in delivering or failure to deliver the Product when such delay or failure is due to strike, lockout, management and labor dispute, delays in or suspension of transportation, raw material shortages, acts of governmental authorities, storm, flood, fire, explosion, or other calamity or causality, riot, acts of God, or any other cause or causes or force majeure, whether or not of like kind or character, beyond Company's control. In such event, Company shall allocate its available quantity of Product to customers, including the customers of Representative, in such manner as it shall deem fair, reasonable, and consonant with good business practice.

43. Representative agrees to indemnify, defend and hold Company, its affiliates, and their respective directors, officers, employees and agents (the "Indemnified Parties") harmless from and against all claims, demands, causes of action, losses, costs, and expenses (including, without limitation, reasonable attorneys' fees) (collectively "Losses") arising out of or incident to the performance by Representative hereunder, including, without limitation, Losses which are attributable to: (a) the negligence or willful misconduct of Representative or its employees or other agents; (b) Representative's acts (or failure to act) under this Agreement; provided, however, that Represen­tative shall have no liability for Losses resulting solely from the negligence of Company. The parties' rights and obligations under this paragraph shall survive the termination of this Agreement.

44. Representative hereby agrees to indemnify, defend, and hold the Company harmless from and against any and all claims, charges, taxes or penalties made by any federal, state or local authority against Company as a result of the Representative's failure to remit all federal, state and/or local taxes or comply with any other requirements of law and/or licensing requirements as to which the Company may be held liable to a government agency or a third party.

45. Without Company's prior written consent, this Agree-ment shall not be assignable, in whole or in part, by Represen-tative. A sale of all, or substantially all, of the Represen-tative's stock or assets in an entity under which Representative conducts business shall be deemed an assignment hereunder.

46. This Agreement shall inure to the benefit of, and be binding upon and enforceable by, the Parties hereto and their respective successors, executors, and permitted assigns.

47. If any provision of this Agreement is held to be invalid, illegal or incapable of being enforced by reason of any rule of law, regulation, or public policy, all other provisions of this Agreement shall nevertheless remain in full force and effect, and no provision shall be dependent upon any other provision unless expressly so provided herein.

48. No waiver by any Party of a provision herein shall be effective unless in writing and signed by such Party. The waiver of or neglect of a party to enforce any of its rights under this Agreement, including, but not limited to, the right of termina­tion, shall not constitute a waiver of such Party's rights in the event of a subsequent breach or a different breach.

 

EcoloBlue, Inc.