Heart Telecom

Commission Agreement

BETWEEN:
(1) Heart Telecom Limited ("the Company") and
(2) The Introducer

WHEREAS:
(1) The Company is in the business of the sale and supply of Telecoms services;
(2) The Company wishes to appoint the Introducer to identify Prospective Clients and introduce them to the Company.

IT IS AGREED as follows:
1 Definitions and Interpretation

1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

1.1.1 "Accept" or "Acceptance"
means (i) clicking on the "I accept" or "I confirm" or similar button during the registration process, where you join online;
(ii) orally confirming your acceptance of this Agreement where you join by telephone;

1.1.2 "Business Day"
means any day other than a Saturday, Sunday or bank holiday;

1.1.3 "the Company"
Heart Telecom Limited, Company Registration Number 6484755, registered address 11 Faraday Building, Nottingham Science and technology park, Nottingham, NG7 2QP;

1.1.4 "Completed Transaction"
means an agreement between the Company and a Prospective Client for the provision of the Product;

1.1.5 "Confidential Information"
means all business, technical, financial or other information created or exchanged between the parties in the course of the Agreement;

1.1.6 "Follow-up"
means an attempt by the Company to contact a Prospective Client using the details supplied by the Introducer pursuant to Sub-clause 3.2;

1.1.7 "the Introducer"
The name of the entity or person which was entered on the online application form;

1.1.8 "Introduction"
means the Company being introduced to a Prospective Client by the method stated at Sub-clause 3.2;

1.1.9 "Product"
means the goods and services provided by the Company, as more particularly defined at Schedule 2; and

1.1.10 "Prospective Client"
means any person who is not an existing client of the Company and who has not been a client of the Company in the 24 month period prior to Introduction.

1.2 Unless the context otherwise requires, each reference in this Agreement to:

1.2.1 "writing", and any cognate expression, includes a reference to any communication effected by electronic mail, telex, facsimile transmission or similar means;

1.2.2 "this Agreement" is a reference to this Agreement and each of the Schedules, as amended or supplemented at the relevant time;

1.2.3 a Schedule is a schedule to this Agreement; and

1.2.4 a clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.

1.3 In this Agreement:

1.3.1 any reference to the parties includes a reference to their respective personal representatives, heirs, successors in title and permitted assignees;

1.3.2 any reference to a person includes any body corporate, unincorporated association, partnership or any other legal entity;

1.3.3 words importing the singular number include the plural and vice versa; and

1.3.4 words importing any gender include any other gender.

2 Appointment of Introducer

2.1 The Company appoints the Introducer to identify and Introduce to the Company Prospective Clients for the Products supplied by the Company, pursuant to the terms and conditions of this Agreement, on a non-exclusive basis.

2.2 The Agreement shall commence with effect from the date of Acceptance until this Agreement is terminated in accordance with Clause 10.

2.3 The Company shall pay to the Introducer a commission fee for either each new client service or each ongoing service taken by a client and Introduced by them at the rate set out at Clause 5 of this Agreement ("the Commission").

2.4 The Company shall be entitled to supply the Product to clients notwithstanding those clients not having been Introduced to the Company by the Introducer.

3 Introduction of Prospective Clients

3.1 The Introducer shall use reasonable endeavour to identify and solicit Prospective Clients to Introduce to the Company.

3.2 The Introducer shall Introduce identified Prospective Clients to the Company by directing Prospective Clients to the Heart Telecom web site. In addition the Introducer shall ensure that the click through tracks the Introducer's identity, for the purpose of ensuring that Prospective clients introduced to the Company by the Introducer are properly identified and that the Fee is accurately calculated.

Alternatively, the Introducer shall:

3.2.1 directly provide all necessary Prospective Client details, such details to be entered into the online Heart Telecom Partner Administration System and to include the Prospective Client's full name, address and daytime telephone number and any other details required to complete an order for services;

3.2.2 provide the Company with full details as to what Product(s) in particular the Prospective Client requires;

3.2.3 ensure that the Prospective Client consents to being contacted by the Company in relation to the supply of the Product;

3.2.4 ensure the Prospective Client has agreed to the terms and conditions of Heart Telecom Limited and the charges relating to the services; and

3.2.5 ensure that all steps are taken in order for the Company to be able to process the contact details and all other information provided to it by the Introducer in accordance with the Data Protection Act 1998.

3.3 The Introducer shall maintain a proper record of Prospective Clients Introduced to the Company pursuant to this Agreement and the dates on which such Introductions were made.

3.4 The Introducer shall ensure that all employees and agents are conversant with the Product supplied by the Company in order to facilitate the effective identification of Prospective Clients.

3.5 The Introducer acknowledges that it is at the complete discretion of the Company to accept or decline Prospective Clients orders and that the Company may carry out checks on the Prospective Client to establish its credit worthiness.

3.6 The Introducer acknowledges that the Company may contract the Prospective Client prior to order acceptance to confirm the prospective Clients acceptance of the terms and conditions of the order.

4 Obligations of the Company

4.1 The Company agrees that it will Follow-up all Introductions made by the Introducer with a view to reaching a Completed Transaction with the Prospective Client. If the Company decides not to contact a Prospective Client Introduced to it for any reason, the Company must inform the Introducer at the end of the calendar month in which such decision was made.

4.2 The Company shall maintain a proper record of Introductions, Follow-ups and Completed Transactions for the purpose of accurate payment of fees under Clause 5.

4.3 The Company shall provide the Introducer with such promotional and sales brochures and literature as is necessary from time to time in order for the Introducer to comply with its obligations under Sub-clause 3.4 above.

5 Commission Fees and Payment

5.1 The Company will pay the Introducer a fixed amount for each Prospective Client service introduced by the Introducer and on go-live of the service OR the Company will pay the Introducer an ongoing revenue share percentage of the revenues generated for the Company by the services taken by the Prospective Client.

All revenue based commission calculations will be applied to the amount of revenue received by the Company from the Prospective Client excluding VAT.

Any services which have accrued an up front commission shall not be eligible for ongoing commission. Commission rates shall vary by service type and shall be published online at the Heart Telecom Partner Administration System. Commission rates may be changed from time to time by the Company with any changed rates applying to new orders introduced.

5.2 Fees under this Agreement shall be payable in respect of each Completed Transaction occurring within the 5 year period immediately following the Introduction of the Prospective Client to the Company.

5.3 The Company will pay the Introducer the Fee for each Completed Transaction by bank transfer on the 15th Business Day of each calendar month following that calendar month in which the Completed Transaction occurred.

5.4 The Introducer acknowledges and agrees that, where a client introduced by him subsequently cancels an agreement with the Company which attracted payment of a Fee and for which the Fee has been paid to the Introducer, the Introducer shall be liable to repay the Fee, pro rata in relation to the amount unpaid by the prospective Client within the minimum contract term of the customer.

5.5 Where a Prospective Client is introduced by the Introducer without the express agreement of the Prospective Client the Introducer agrees to indemnify the Company against any losses suffered as a result of such act.

5.6 Commission payments will be subject to a minimum payment amount in any month of £60. If the amount due for payment is less than £60 then the amount due will be carried forward and added to the next month's due amount.

5.7 If a Client introduced by the Introducer fails to pay for any ongoing services for which the Fee has been paid to the Introducer, the Introducer shall be liable to repay the Fee, pro rata in relation to the amount unpaid by the Client.

6 Relationship of the Parties

6.1 Nothing in this Agreement shall constitute, or be deemed to constitute, a partnership between the parties nor, except as expressly provided, shall it constitute, or be deemed to constitute, any party the agent of any other party for any purpose.
6.2 Subject to any express provisions to the contrary in this Agreement, the Introducer shall have no right or authority to and shall not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on behalf of the Company or bind the Company in any way.

7 Non Competition
The Introducer agrees not to act as an introducer or referrer or perform any similar function for any other person or organisation which provides identical or similar goods or services to those provided by the Company.

8 Confidentiality
The parties agree to keep all Confidential Information in relation to the business of the other confidential during and after the term of the agreement. This Clause 8 will not apply to:

8.1 any information which has been published or is in the public domain other than through a breach of this agreement;

8.2 information in the possession of the recipient party before the disclosure under this agreement took place;

8.3 information obtained from a third party who is free to disclose it;

8.4 information which a party is required by law to disclose.

9 Non Circumvention
The Company and the Introducer hereby irrevocably agree not to circumvent or attempt to circumvent the provisions of this Agreement, including but not limited to those provisions regarding the calculation and payment of the Fee, and affirm that in every case that they will act with the highest standards of ethics in their dealings with each other.

10 Termination

10.1 Either party has the right to terminate this Agreement immediately if the other:

10.1.1 has committed a material breach of this agreement, unless such breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the other party has failed to remedy the breach within 14 days after a written notice to do so; or

10.1.2 becomes insolvent or is the subject of a bankruptcy order.

10.2 Either party may terminate this Agreement for any other reason on giving not less than 1 months' notice in writing to the other party.

10.3 No Fee shall accrue for any Introduction of a Prospective Client after the date on which this Agreement is terminated. Any Introduction occurring prior to termination which results in a Completed Transaction after termination shall accrue a Fee pursuant to Clause 5. The termination of this Agreement shall be without prejudice to any rights which have already accrued to either of the parties under this Agreement.

10.4 Upon Termination of this Agreement any monies owed by the Introducer to the Company shall be payable immediately.

11 Nature of Agreement

11.1 This Agreement is personal to the parties and neither party may assign, mortgage, or charge (otherwise than by floating charge) or sub-license any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder, except with the written consent of the other party.

11.2 This Agreement contains the entire agreement between the parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the parties.

11.3 Each party agrees that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

11.4 No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

11.5 If any provision of this Agreement is held by any court or other competent authority to be invalid or unenforceable in whole or in part, this Agreement shall continue to be valid as to its other provisions and the remainder of the affected provision.

12 Notices and Service

12.1 Any notice or other information required or authorised by this Agreement to be given by either party to the other shall be given by:

12.1.1 delivering it by hand;

12.1.2 sending it by pre-paid registered post; or

12.1.3 sending it by email, facsimile transmission or comparable means of communication to the other party at the address given in Sub-clause 12.4.

12.2 Any notice or information given by post in the manner provided by Sub-clause 12.1.2 which is not returned to the sender as undelivered shall be deemed to have been given on the 5th day after the envelope containing it was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that the notice or information has been duly given.

12.3 Any notice or information sent by email or comparable means of communication shall be deemed to have been duly given on the date of transmission, provided that a confirming copy of it is sent as provided in Sub-clause 12.1.2 to the other party at the address given in Sub-clause 12.4 within 24 hours after transmission.

12.4 Service of any document for the purposes of any legal proceedings concerning or arising out of this Agreement shall be effected by either party by causing it to be delivered to the other party at its registered or principal office, or to such other address as may be notified to it by the other party in writing from time to time.

13 Set Off

The Company may withhold payment of, or make any deduction from, any invoice or other amount due to the Introducer by reason of any right of set-off or counterclaim which the Company may have or allege to have or for any reason whatsoever.

14 Jurisdiction

14.1 This Agreement shall be governed and construed in accordance with the Laws of England and Wales.

14.2 In relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement each of the parties irrevocably submits to the exclusive jurisdiction of the English and Welsh courts and waives any objection to proceedings in such courts

SCHEDULE 1

Commission Structure

see Heart Telecom Partner Administration System

 

SCHEDULE 2

Product Schedule

Fixed line voice calls
Fixed line rental
Internet connectivity
Wide area IT networks
Non geographic numbers
Note: additional services may be added from time to time at the discretion of Heart Telecom Limited.