This agreement (“Agreement”) is between NetTek, LLC (“NetTek”) and company named above (“Partner”), and is dated as of the later date of signature below.
  1. BACKGROUND
    • Partner will solicit new customers for NetTek’s Desktops2Go® service (“D2G” or "Service"), according to the terms and conditions of this Agreement. Accordingly, the parties agree as follows:
  1. DEFINITIONS
    • “Firm Order” means a definitive, binding, written purchase commitment for NetTek services executed by an authorized representative of a prospective or current customer which is submitted to NetTek by the Partner on forms specified by NetTek, in accordance with NetTek procedures and which is accepted by NetTek.
    • “Cloud Provider” (CSP) means an organization who is a provider or aggregator of web based software as a service (“SaaS”), desktop hosting (“DaaS”), Hardware as a Service (“HaaS”) or similar service.
    • “Internet Service Provider” (ISP) means an organization providing on-line or data connection service utilizing modems to connect to World Wide Web or Internet.
    • “Billed Revenue” means amounts invoiced directly by NetTek to a Relevant Customer or Partner for the Offered Services, excluding charges for installation, taxes, network access charges, governmental charges, or other fees.
    • “Prospective Customer” means those entities that have been contacted by a NetTek employee within the 90 days prior to being contacted by Partner.
    • “Relevant Customer” means a customer solicited by Partner which was neither a current nor Prospective Customer of NetTek prior to solicitation by Partner is neither a Cloud Provider nor an Internet Service Provider and from which Partner has secured a Firm Order which has been accepted by NetTek.
  1. TERM AND TERMINATION
    • Term of Master Service Agreement. The term of this Agreement begins on the date this Agreement is signed, and continues for 1 year.  After the initial term, this Agreement will automatically renew for successive (1) year periods (“Renewal Agreement”) unless either party notifies the other party in writing of its intention not to renew this Agreement at least sixty (60) days before the end of the then current term.
    • Termination for Cause. NetTek may terminate this Agreement immediately upon written notice if the Partner
      • makes (or is discovered to have made) any false representations, reports, or claims in connection with this Agreement or the services of NetTek;
      • engages in fraud, criminal or negligent conduct;
      • has any proceeding brought or filed against it seeking any reorganization, liquidation, dissolution or together similar relief with respect to any present or future bankruptcy or similar laws, or Partner otherwise becomes insolvent, ceases to function as a going concern, or ceases to pay its debts as they become due;
      • breaches or violates any provision of this Agreement or any applicable law, regulation, rule or order; or
      • attempts to assign or delegate this Agreement or any of its rights or duties under this Agreement without the prior written consent of NetTek.
  1. NETTEK PROPERTY
    • NetTek Property. Nothing contained in this Agreement grants any rights to Partner by license, franchise, title, interest or otherwise, in NetTek or any property of NetTek.  Partner will not, either directly or indirectly, adopt, use, register or attempt to register any word, mark, design or logo which is likely to be similar to or confusing with the NetTek service marks or logo, without NetTek’s prior written consent.
  1. ENGAGEMENT OF PARTNER
    • Engagement. NetTek engages Partner, and Partner agrees to provide the services and perform the tasks stated in this Agreement.
    • Partner’s Authority; Territory.
      • Partner has the non-exclusive right to market the D2G services offered by NetTek that are listed on Schedule A (“Offered Services") in and throughout all geographic areas served by NetTek. NetTek may, upon notice to Partner, modify Schedule A or change the geographic areas served by NetTek.
      • Partner may request to offer a service that is not defined the Schedule A with prior written permission of NetTek. Partner will not have the authority to bind NetTek and will not represent to any third party that it has such authority.
      • Partner will advise customers and potential customers that it is soliciting orders for services that will be provided by NetTek.
    • Rights Not Exclusive. Partner agrees that its right to market the Offered Services is and will be a non-exclusive right and that during the term of this Agreement and thereafter, NetTek reserves the right, without obligation or liability to Partner, to market the Offered Services, directly or indirectly, in and throughout any geographic area that NetTek deems appropriate.
    • NetTek Dealings with Partner’s Customers. Partner is the primary point of contact for Partner’s customers and retains ownership of said customers.  In the event NetTek currently provides service prior to D2G, both Partner and NetTek will retain their respective relationships with the customer.  NetTek will notify Partner of any existing relationship before accepting a Firm Order.  NetTek has the right to deal directly with all customers of NetTek services, including, without limitation, customers generated or contacted by Partner, in all matters relating to the provision, servicing and support of NetTek services.
  1. COMPENSATION
    • Signing Bonus. Upon the acceptance of a Firm Order and after NetTek receives the Relevant Customer’s initial deposit, NetTek will pay the Partner for each full desktop sold as defined in Schedule B.  Additionally, the Signing Bonus is paid only for the initial sale, it is not paid on contract renewals or for added users after the initial setup.
    • Compensation. Will be the difference between the amounts the Partner bills the Relevant Customer less the amount charged by NetTek.
    • Payments after Term. Except as stated herein, if this Agreement is terminated for cause by NetTek as provided in Section 2, NetTek will assume responsibility to bill Relevant Customer directly in the same amount that Partner billed and will pay a Commission equivalent to the Compensation based on Billed Revenue.  The payment to the Partner will continue for three (3) months after termination or until the end of the end-customer term, whichever is less.  In such event, Partner agrees that it will be entitled to Commissions or Compensation only with respect to the period ending with the last full calendar month in which this Agreement is in effect.  If this Agreement expires, or if it is terminated without cause, Commissions and Compensation will continue to be paid beyond such expiration or termination.
  1. PARTNER RESPONSIBILITIES
    • End Customer Billing. Partner is responsible for billing and collecting from the customers that Partner brought into the D2G service.
    • Marketing. Partner will use good faith efforts to diligently market the Offered Services to Prospective Customers in accordance with the terms of this Agreement.  Partner will not offer any terms or conditions that are not authorized by NetTek.
    • Installation Support. Partner will provide technical assistance during the setup and installation of Desktops2Go (“Installation Assistance”).  Installation Assistance includes but is not limited to,
      • Filling out proper documentation to prepare for the migration to Desktops2Go;
      • Copying, packaging and shipping files to NetTek’s installation team;
      • Creating portable files of the Relevant Customer’s end users (“End-Users”)
      • Attend and assist in webinar End-User Training;
      • Install 3rd party applications that NetTek’s installation team may not have authorization to install or may not be familiar enough to install;
      • Help with troubleshooting and quality assurance testing and taking the customer live (“Go Live”);
      • Setup any on-site equipment such as modems, routers, fire walls, VPNs and the like;
      • Other duties and tasks as requested by the Installation Team.
    • Customer Support. Partner is responsible for initial customer support calls (“Help Desk”).  If the Help Desk is unable to resolve a problem, the Partner will call or create a service request (“Service Ticket”) in NetTek’s ticket management system.  NetTek will schedule and manage the Service Ticket in accordance with its normal service procedures.
    • Periodic Meetings and Training. Partner agrees to meet with NetTek representatives to discuss sales activities and provide present and projected customer contact information, sales forecasts, sales to date and any customer problems.  Partner will attend training programs required by NetTek.
    • Partner’s Conduct. In all dealings with its customers and with NetTek, Partner will act with the highest standards of honesty, integrity and fair dealing, including compliance with all applicable laws, ordinances and regulations.  Partner will obtain authorized signatures of customer’s representatives on NetTek form customer agreements, correct information from the customer regarding the customer’s service requirements, and legitimate and authorized licenses for any software that is not provided by NetTek.  Any action of NetTek in providing services under erroneous terms obtained by Partner will not be deemed a ratification of Partner’s acts.
    • Customer Complaints. Partner will promptly report to NetTek all customer service complaints regarding NetTek services.
  1. PROMOTIONAL/MARKETING MATERIALS
    • Promotional Materials. NetTek will provide to the Partner, templates of approved marketing materials.  No other promotional materials will be used by Partner without NetTek’s prior written consent.
    • Demo Account. NetTek will provide to the Partner, a single account ("Demo Account") that may be used for demonstration of the Service to a Prospective Customer.  The Demo Account will remain active provided it is accessed by the Partner for a minimum of once every 30 days.
  1. PRICING AND TERMS OF PRODUCT OFFERINGS
    • Desktops2Go Price to the Partner. NetTek will set the prices and terms under which it will offer D2G services.  Any change, restriction, amendment or discontinuance of service will be at NetTek’s sole discretion effective on the date specified by NetTek, and without liability to Partner for lost margin or commission or otherwise.
    • Desktops2Go Price to the Relevant Customer. Partner will set the price that the Partner will charge Relevant Customer without restriction.
    • Migration Fee.  NetTek will bill the Partner a migration fee as defined in Schedule B.
    • Desktops2Go Contract Terms. NetTek will set the contract terms for the Desktops2Go Service Agreement that is signed by the Relevant Customer.
    • Initial PaymentWith each Firm Order Partner will pay NetTek a deposit equal to two month’s service fee (“Initial Payment”). One half of the Initial Payment will be applied to the first full month invoice and one half of the Initial Payment will be applied to the final invoice.
    • Discounted Pricing.  Prices listed in Schedule A are discounted for automatic monthly ACH billing or automatic monthly  Credit Card billing.
    • Billing. If the Partner chooses to pay by check the discounted pricing will not apply and NetTek will invoice D2G approximately 15 days in advance. If D2G is activated after the 1st of the month, the Partner's bill will reflect a pro-rated amount from the Activation Date through the end of the first month of when D2G was activated.  Payments for D2G must be paid on or before the due date to avoid service interruption.  Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the rate of two (2) percent per month or fraction thereof until paid.
    • Term and Termination. Partner may elect to pay the migration fee as stated in Schedule B otherwise, each Firm Order that includes a D2G Full Desktop will carry an initial term of Twenty-Four (24) months (“Initial Term”).  Partner may terminate a Firm Order without cause upon Sixty (60) days written notice.  In the event of termination by Partner without cause, Partner will pay NetTek for all of the Services performed up to the date of termination plus Fifty (50) percent of unused Service, as liquidated damages.  Either party may terminate this agreement upon written notice for material breach, provided, however, that the terminating party has given the other party at least Thirty (30) days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party’s right to exercise any other remedies for breach.
    • Subsequent Term.  This agreement will automatically renew for Twelve (12) months (“Subsequent Term”) upon completion of the Initial Term and will continue to automatically renew for Twelve (12) months after each Subsequent Term unless termination is given in writing at least Sixty (60) days prior to the renewal.
    • Rate Adjustments.  NetTek reserves the right to adjust the base monthly premium to reflect usage of the Service. NetTek reserves the right to adjust monthly licensing prices based on price changes by software vendors such as Microsoft, VMware, Veeam and Citrix (“Software Vendor”). Upon any adjustment, exclusive of Internet bandwidth overages, added services elected by the Partner or Software Vendor price changes, Partner may cancel this agreement without the liquidated damages clause stated above.
  1. SERVICE ORDER PROCEDURE
    • Deal Registration. Partner may choose to claim a potential sale (“Registered Prospect”) that is not already a Prospective Customer or Registered Prospect by emailing registration@desktops2go.com.  NetTek will review the request and reply by email confirming or denying the Registered Prospect.
    • Firm Orders are not binding until accepted by NetTek and the Relevant Customer’s deposit is received by NetTek. NetTek may, in its sole discretion, reject (for any or no reason) any Firm Order solicited or taken by Partner.
    • Firm Order Disputes. If more than one Firm Order is submitted for a current customer or Prospective Customer or there is a question as to whether a prospect may be either a Cloud Provider or an Internet Service Provider and a dispute arises over whether Partner or any other person may be entitled to all or part of the compensation relating to such customer then, NetTek has the right, in its reasonable discretion, to award the Relevant Customer contract to the a Partner of its choice in any manner it deems reasonable and appropriate.
  1. CONFIDENTIALITY
    • Proprietary Information. Partner acknowledges that this Agreement creates a relationship of confidence and trust with respect to all information disclosed by or on behalf of NetTek to Partner that relates to the business of NetTek, its affiliates, customers, suppliers and vendors (the “Proprietary Information”). Proprietary Information includes, but is not limited to, business information, information relating to costs, profit margins, markets, suppliers, business plans and projections, financial, accounting, legal and regulatory data, names, addresses and telephone numbers of current or prospective customers and their respective service or product requirements, credit histories and trade names, sales, marketing and advertising plans or materials.
    • Confidentiality Term. At all times during and after the term of this Agreement, Partner will keep all Proprietary Information in confidence and will not disclose such Proprietary Information to any third party or directly or indirectly use any of such Proprietary Information for Partner’s own benefit or for the benefit of any person or entity other than NetTek. Upon any termination of this Agreement, or upon the request of NetTek, Partner will promptly deliver to NetTek all Proprietary Information, and Partner will not retain any documents or materials or copies thereof containing any Proprietary Information.
    • Breach of Confidentiality. Partner agrees that in the event of a breach of the confidentiality provisions of this Agreement by Partner, NetTek may suffer irreparable harm and will therefore be entitled to seek injunctive relief to enforce this Agreement without the need to post bond and that such relief will be in addition to, and not in lieu of any monetary damages or such other relief a court of law may award.
  1. PROHIBITED CUSTOMER AND EMPLOYEE CONTACTS
    • Non-Compete. At all times during the term of this Agreement, and for as long as NetTek is paying Partner any Commission, Partner agrees that it will not, whether on its own account or for the account of any other person or entity,
      • contact any Relevant Customer for the purpose of soliciting or inducing it to terminate its business relationship with NetTek and/or to purchase, from any business other than NetTek or its affiliates, any D2G service similar to those offered by NetTek, or
      • contact employees of NetTek with whom Partner worked or had contact during the term hereof for the purpose of encouraging or inducing them to terminate their employment with NetTek.
    • Similar Services. Nothing in this Agreement shall be construed to prohibit Partner from providing to Relevant Customers information available in the industry regarding the D2G services or products offered by other companies; provided, however, that whenever Partner provides such information to Relevant Customers, Partner shall also provide information regarding comparable D2G products or services offered by NetTek.
  1. INDEMNIFICATION
    • Indemnification. Partner will indemnify and hold harmless NetTek and its members, managers, officers, directors, agents, employees, successors and assigns from and against any and all claims, demands, causes of action, losses, damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees) (“Claims”) arising out of or relating to,
      • Partner’s breach of any of the terms of this Agreement,
      • Partner’s misrepresentation regarding the terms and provisions of NetTek’s services to customers, including, but not limited to, any action of Partner in which Partner falsely represents that Partner has authority to bind NetTek or fails to inform customers that services will be provided by NetTek,
      • Partner’s activities relating to the marketing of the Offered Services to NetTek customers, or
      • any claim for withholding or other taxes that might arise or be imposed in connection with this Agreement or the performance hereof.
  1. GENERAL PROVISIONS
    • Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, other than its rules regarding choice of law.
    • Assignment; Binding Effect. NetTek may assign or delegate its rights or obligations under this Agreement without the consent of Partner.  Partner may not assign or delegate its rights or obligations under this Agreement without the advance written consent of NetTek, which consent may be withheld or conditioned by NetTek in its sole discretion.
    • Entire Agreement; Amendment; Waiver. This Agreement constitutes the entire agreement between NetTek and Partner and supersedes any other prior or contemporaneous communication between NetTek and Partner.  Except as otherwise provided herein this Agreement may only be amended by a written amendment executed by both parties hereto.  Waiver of a breach of this Agreement by either party will be valid only if made in a signed writing.  A waiver of any current breach of this Agreement will not act as a waiver of any future breach of this Agreement.
    • Notices. All notices under this Agreement must be in writing and sent via an overnight courier that provides evidence of delivery.  All notices to Partner must be sent to the address listed on Page 1, and all notices to NetTek must be sent to: NetTek, LLC, 2415 Almeda Ave., Norfolk, VA, 23513-2445., Attn: General Counsel.
    • Independent Contractor. NetTek and Partner are independent contractors.  Nothing in this Agreement or in the activities contemplated by the parties will be deemed to create a partnership, employment or joint venture relationship between the parties (or any of their subcontractors).
IN WITNESS WHEREOF, NetTek and Partner represent that they have read this Agreement, understand it and agree to be bound by all the terms and conditions stated herein. Please sign using a stylus, your mouse, or your finger below to authorize this contract. By electronically signing this document, you agree to the terms established above.
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01/16/2021