Perimeter Hero

This Contract shall supersede and replace any previous or contemporaneous written or oral contract, warranty, representation or understanding regarding its subject matter.

Consultant Contract (printable version):

MX RESOURCES, LLC AGREEMENT FOR MX RESOURCES EMAIL SECURITY SERVICE This Agreement for MX Resources Email Security Service (“Agreement”) is entered into as of the date of submission, (the "Effective Date") between MX Resources, LLC (hereinafter “MX”), a California limited liability company, and the company specified above (hereinafter "Consultant"). In consideration of the mutual promises set forth herein, and whereas MX is an authorized service provider of Postini Services (the “Services”), and whereas Consultant wishes to offer the Services to its clients. 1. Appointment. Subject to the terms contained in this Agreement, MX hereby appoints Consultant, during the Term (as hereinafter defined) hereof, as a non-exclusive representative for the purpose of consulting, promoting and selling to its clients (“Clients”) the Services in the United States of America (the “Territory”). 2. Territory. Consultant and MX recognize and acknowledge that Consultant's promotion and sale of the Services shall be limited to the Territory. Consultant agrees that Consultant will not represent or promote the sale of the Services outside of the Territory without the prior written consent of an authorized executive officer of MX. 3. Acceptance of Appointment. Consultant hereby accepts its appointment as MX’s Consultant to promote the sale of the Services in the Territory. Consultant agrees to perform its obligations hereunder in a timely and professional manner. Consultant specifically acknowledges that MX shall have the right to cancel this Agreement and all grants of representation hereunder in the event Consultant fails to fulfill its obligations hereunder. 4. Consultant’s Duties. In satisfaction of certain of its obligations under this Agreement, Consultant shall undertake the following duties: 4.1. Consultant will identify and close Clients in accordance with this Agreement. Consultant will not specifically direct promotional activities at other consultants’ existing Clients so as to encourage them to become Consultant’s Clients with respect to the Services. 4.2 Consultant shall cause Clients to enter into a written Services Contract with MX. 4.3 Consultant will provide sales support to potential and existing Clients in a diligent manner consistent with industry standards including, but not limited to, responding to questions from Clients about the features and prices of the Service and introducing Clients to new features and new services as such become available. 4.4 In the course of promoting the Services, it is understood that Consultant will provide additional consulting services to Clients, such as researching, recommending and supporting the Services. Consultant’s consulting services are not MX’s responsibilities or obligations, but are to be invoiced by and paid directly to Consultant by Clients. 4.5 Consultant will perform its duties hereunder in a diligent and businesslike manner and will refrain from any activity or action that would reasonably be expected to damage the reputation of Postini and/or MX and/or the Services. 5. Term. The Term of this Agreement shall commence on the date hereof and terminate one year later, except that the Term shall be automatically renewed for successive periods of one year unless a party serves written notification to the other party, that the Term shall not be renewed. This Agreement shall be effective for the placement of orders (the "Orders") for Services from Clients in the Territory which are generated as a result of the representation and promotional efforts of Consultant during the Term. 6. Compensation. 6.1 MX agrees to pay Consultant a commission ("Consultant Compensation") on payments made by Consultant's Clients in accordance with the amounts and terms set forth in Exhibit "A”. 6.2 MX’s commission structure described in Exhibit A is subject to revision by MX with a 30-day notice being given prior to any revision taking place. 6.3 Consultant understands that MX retains the right to make final determination (a), in cases of dispute, as to which Consultant has earned a particular commission; and (b) and to accept, reject, modify or cancel, in whole or in part, any or all of a Client Service Contract. 6.4 Consultant shall turn in a Weekly Sales Report Sheet to MX detailing the Client’s name and contact information. This form is to be turned in by the end of Monday for the preceding week’s transactions. 6.5 Commissions will be paid on the 15th day of each month for the previous month’s cash receipts (checks will not constitute “cash” until 10 days after deposit) from Client payments. Accompanying the payment shall be a Monthly Commission Report. Any Client payment found not to be processed for any reason will be counted and paid as part of the following month’s commission after successful processing. 6.6 In the event of cancellation or termination of this Agreement, Commissions will be earned up to, but not beyond, the date of such cancellation or termination. 6.7 In the case of charge-backs, the full commission amount paid to Consultant will automatically be deducted from the current commission payment due. 6.8 Consultant understands that all commissions are considered ordinary income and will be reported as such to the Internal Revenue Service. 7. Marketing. MX shall retain control over the content of all promotional material and advertisements created or used by Consultant and all such promotional material and advertisements, prior to any use in the Territory, shall be approved by MX. Upon expiration or termination of this Agreement for whatever reason, unless otherwise agreed by MX, Consultant will immediately cease all use of any trademarks of MX and Postini, and deliver to MX or destroy all materials bearing any of MX's and Postini’s, and their respective licensors’, trademarks, including all advertising and promotional materials. 8. Confidentiality. 8.1 Consultant acknowledges that in the course of this Agreement, Consultant may have access to MX’s Confidential Information. “Confidential Information,” as used in this Contract, means information not generally known to the public, in written, oral or any other form, that MX designates as being confidential or that, under the circumstances surrounding disclosure, should be clear that it is confidential. 8.2 The obligations of this Section 8 shall not apply to Confidential Information that (i) was in the possession of, or was rightfully known by Consultant, without an obligation to maintain its confidentiality, prior to the time of disclosure; (ii) is or becomes generally known to the public without violation of this Agreement; or (iii) is obtained by Consultant in good faith from a third party having the right to disclose it without an obligation of confidentiality. 8.3 Consultant hereby agrees that during the term of this Agreement and for a period of five (5) years after the expiration of this Agreement, it will not make any such Confidential Information available to any third party and will not use the Confidential Information for any purposes other than to exercise its rights and perform its obligations under this Agreement. Consultant shall take all reasonable steps to ensure that the Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, and in any event Consultant shall exercise the same prudent practice in preserving this information as it does to preserve its own Confidential Information. The foregoing obligations will not restrict Consultant from disclosing Confidential Information or the terms and conditions of this Agreement pursuant to the order or requirement of a court or other governmental body, provided that Consultant gives prompt notice to MX to enable it to contest such order or requirement. 8.4 Without prejudice to any rights and remedies otherwise available to a party, Consultant understands and agrees that MX will be entitled to seek a restraining order and/or injunction, in addition to any other remedy to which MX may be entitled by law or in equity, and/or an order compelling specific performance of this Agreement, in the case of the use or disclosure of any Confidential Information by Consultant in any unauthorized manner or the breach or threatened breach of the provisions of this Agreement by Consultant, without the necessity of posting any bond. 9. Indemnity. MX, at its expense, shall indemnify, defend and hold harmless Consultant against any losses, costs and damages arising from a claim by a third party against Consultant that the Services, or any part thereof, infringe any U.S. intellectual property or proprietary rights of such third party or misappropriates any protected trade secret of such third party. MX’s obligations under this Section 9 are subject to Consultant providing MX with (i) prompt written notice of the claim, (ii) sole control over the defense or settlement (subject, in the case of settlement, to Consultant’s consent, which consent shall not be unreasonably withheld or delayed), and (iii) reasonable support and cooperation with regard to the defense. 10. Limitation of Liability. IN NO EVENT WILL MX BE LIABLE TO CONSULTANT FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR OPERATION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF AGREEMENT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT MX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 11. Termination - Either Consultant or MX may at its option immediately terminate this Agreement by giving written notice thereof to the other party in the event of the happening of any of the following: (a) If the other party becomes insolvent, or a petition in bankruptcy is filed, or any similar relief is filed by or against the other party, or a receiver is appointed with respect to any of the assets of the other party, or a liquidation proceeding is commenced by or against the other party; or (b) Failure to correct or cure any material breach by the other party of any representation or warranty, covenant or obligation under this Agreement hereunder within thirty (30) calendar days after receipt by the other party of a written notice from such party specifying such breach; or (c) Unauthorized assignment of this Agreement by Consultant. MX shall have the right to immediately terminate this Agreement without prior notice if Consultant, its employees or agents shall breach the confidentiality provisions of this Agreement referenced in Section 9, “Indemnity”, of this Agreement. In addition to any other obligations hereunder, upon expiration or termination of this Agreement for whatever reason, Consultant shall return all Confidential Information to MX and cease using all trademarks of MX, Postini and their respective licensors. 12. Arbitration. Any controversy, dispute or claim arising out of the interpretation, performance or breach of this Agreement shall be resolved by binding arbitration, at the request of either party, in accordance with the rules of the American Arbitration Association in the City of Los Angeles, California. The arbitrators shall apply California substantive law and the California Evidence Code to the proceeding. The arbitrators shall have the power to grant all legal and equitable remedies and award compensatory damages provided by California law, including the power to award punitive damages. The arbitrators shall prepare in writing and provide to the parties an award including factual findings and the reasons on which the decision is based. The arbitrators shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected pursuant to California Code of Civil Procedure Sections 1286.2 or 1286.6 for any such error. 13. No Partnership. The relationship between MX and Consultant under this Agreement is solely that of independent contractor. Each of the parties is in no way the legal Consultant of the other party for any purpose and shall have no power to assume or create, in writing or otherwise, any obligation or responsibility of any kind, expressed or implied, in the name of or on behalf of the other party 14. Force Majeure. MX and/or Postini shall not be liable for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control including, without limitation, Domain Name Server (“DNS”) issues outside the direct control of MX, labor strikes or shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, or internet failures such as routing errors or ISP outages. 15. Notices. All notices required to be sent under this Agreement must be in writing and shall be delivered in person or shall be sent to Consultant at the address set forth on the signature page hereof, and to MX at the address below: MX Resources, LLC 10573 West Pico Blvd., #343 Los Angeles, CA 90064 Notices shall be deemed to have been given upon (i) the date actually delivered in person, (ii) the date transmitted via fax with confirmation of receipt thereof (iii) the day after the date sent by overnight courier or (iv) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax. 15. General Terms. 15. 1 The terms of this Agreement shall be MX’s Confidential Information, and Consultant shall undertake whatever measures are reasonably necessary to preserve such confidentiality unless disclosure is required by law. 15.2 This Agreement (while in effect and thereafter following termination) is and will be binding upon the respective parties hereto, their respective successors in interest, legal Consultants and assigns, provided that nothing herein is intended for the benefit of any other third party. 15.3 Consultant may assign this Agreement in its entirety, but not in parts, to its parent company, affiliate or subsidiary, or in connection with a merger, consolidation, or sale or other disposition of all or substantially all of its assets. Any other assignment shall be null and void, except with MX’s prior written consent. This Agreement is freely assignable by MX. 15.4 The titles of the Sections hereof are for convenience only and shall in no way affect its interpretation. 15.5 This Agreement supersedes any and all prior and contemporaneous agreements or understandings (written or oral) relating to the subject matter hereof. This Agreement cannot be terminated or modified except by a written document signed by the parties. In addition, neither party shall be bound by any terms additional to nor different from those in this Agreement that may appear subsequently in either party's quotations, acknowledgments, invoices or any other communications unless contemplated by this Agreement. 15.6 The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights, and no condition or obligation under this Agreement may be waived without a written acknowledgment of such waiver, and a waiver of one condition or obligation is not to be construed as creating a waiver of any other condition or obligation. 15.7 If any part of this Agreement shall be held void, invalid or unenforceable, it shall not affect the validity of the balance of this Agreement. 15.8 This Agreement, its construction, validity, and interpretation shall be governed by the internal laws of the State of California applicable to contracts entered into and to be wholly performed within such state. 15.9 In the event of a dispute or litigation with respect to any of the terms hereof, the prevailing party is to be awarded reasonable attorneys’ fees and costs. 15.10 Survival. The rights and obligations of MX and Customer contained in this Section and in Section 8, “Confidentiality,” Section 9, “Indemnity,” and Section 10, “Limitation of Liability,” shall survive any expiration or termination of this Agreement. 15.11 This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which taken together shall constitute one and the same instrument; and facsimile copies thereof shall be effective upon confirmation by acknowledgement of receipt thereof. EXHIBIT A MX RESOURCES, LLC CONSULTANT AGREEMENT FOR POSTINI SERVICES COMPENSATION 1. Clients brought on-line by Consultants - $1.00 per mail-box of each Client’s monthly fee.