Commission Memorandum of Understanding

COMMISSION MEMORANDUM OF UNDERSTANDING

This Commission Memorandum of Understanding (the Memorandum) is entered into as of the day of , (Effective Date), by and between Commissioning Party Name: , and Commissioned Party Name: .

RECITALS

WHEREAS, Commissioner is engaged in the business of providing certain goods and/or services and desires to retain Agent to solicit, facilitate or procure specified transactions for the Commissioner; and

WHEREAS, Agent has represented to Commissioner that Agent has the experience, capabilities and contacts necessary to perform such solicitation, facilitation or procurement on the terms set forth herein; and

WHEREAS, the parties wish to set forth their respective rights and obligations with respect to the payment and calculation of commissions, reporting, confidentiality and other matters relevant to the Agent’s engagement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows:

1. DEFINITIONS

1.1 "Commission" means the payment due to Agent as calculated in Section 3 based on Commissionable Receipts.

1.2 "Commissionable Receipts" means gross amounts actually received by Commissioner from transactions procured by Agent, less refunds, credits and taxes collected on behalf of taxing authorities.

2. APPOINTMENT; SCOPE

2.1 Appointment. Commissioner appoints Agent, and Agent accepts such appointment, on a non-exclusive basis to solicit and procure transactions for the products and/or services described as:

2.2 Authority. Agent has no authority to bind Commissioner to contracts, make representations beyond those expressly authorized in writing, or incur obligations on behalf of Commissioner except as explicitly set forth in a separate written instrument signed by Commissioner.

3. COMMISSION RATE AND CALCULATION

3.1 Rate. Commissioner shall pay Agent a commission equal to % of Commissionable Receipts (Commission Rate).

3.2 Calculation. Commissions shall be calculated on the net amount actually received by Commissioner from the customer, exclusive of applicable taxes, shipping and handling, and after deduction for returns and chargebacks occurring within days of invoice.

4. PAYMENT TERMS

4.1 Timing. Commission payments are due within days after the end of the month in which Commissioner receives the Commissionable Receipts.

4.2 Method. Payments shall be made by wire transfer or check to the account designated by Agent in writing. Agent shall provide completed payment instructions, including bank name, account number and routing information, on request.

5. REPORTING AND RECORDS

5.1 Reports. Commissioner shall deliver to Agent, concurrently with each payment, a written statement that identifies Commissionable Receipts and the calculation of the Commission for the applicable period (a "Commission Statement"). Commission Statement frequency:

5.2 Audit. For a period of 24 months following each payment, Agent, at Agent’s expense and upon reasonable prior written notice, may inspect and copy relevant books and records of Commissioner solely for the purpose of verifying Commission calculations. Any underpayment found to be more than 5% shall be promptly remedied by Commissioner, together with interest at the lesser of 1.5% per month or the maximum rate permitted by law.

6. TERM AND TERMINATION

6.1 Term. The term of this Memorandum shall commence on the Effective Date and shall continue until , unless earlier terminated as provided herein.

6.2 Termination for Convenience. Either party may terminate this Memorandum for convenience upon days' prior written notice to the other party.

6.3 Effect of Termination. Termination will not relieve Commissioner of its obligation to pay commissions earned on transactions closed prior to the effective date of termination in accordance with the terms of this Memorandum.

7. CONFIDENTIALITY

7.1 Confidential Information. Each party shall hold in confidence and not disclose to any third party all non-public information disclosed by the other party that is designated as confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure.

7.2 Exceptions; Permitted Use. Confidentiality obligations shall not apply to information that is publicly known through no breach by the receiving party, independently developed without reference to the disclosing party’s information, or independently lawfully obtained. Each party may use Confidential Information only to perform its obligations under this Memorandum.

8. INDEPENDENT CONTRACTOR

Agent is an independent contractor and not an employee, partner, joint venturer or agent of Commissioner for any purpose except as expressly set forth. Agent shall be solely responsible for all withholding, social security, unemployment insurance and other statutory obligations arising from payments to Agent.

9. REPRESENTATIONS; WARRANTIES

Each party represents and warrants that it has full power and authority to enter into and perform this Memorandum, that the execution and delivery of this Memorandum has been duly authorized by all necessary corporate or other action, and that this Memorandum constitutes a valid and binding obligation enforceable in accordance with its terms.

10. INDEMNIFICATION

Each party shall indemnify, defend and hold harmless the other party, its affiliates and their respective officers, directors and employees from and against any third party claims, liabilities, damages, losses and expenses (including reasonable attorneys' fees) arising out of or resulting from the indemnifying party's breach of this Memorandum, willful misconduct or negligence.

11. INSURANCE; LIMITATION OF LIABILITY

11.1 Insurance. Each party shall maintain insurance in amounts customary for its industry, including commercial general liability and, where applicable, professional liability insurance with minimum limits of for each occurrence.

11.2 Limitation. Except for liability for gross negligence, willful misconduct or indemnification obligations, neither party shall be liable to the other for any incidental, consequential, punitive or exemplary damages.

12. NOTICES

Notices shall be in writing and delivered by hand, nationally recognized overnight courier, or certified mail, return receipt requested, to the addresses set forth above or such other address as either party designates by notice to the other in accordance with this paragraph.

13. AMENDMENTS; WAIVER; COUNTERPARTS

13.1 Amendment. This Memorandum may be amended only by a written instrument signed by duly authorized representatives of both parties.

13.2 Waiver. No failure or delay by either party in exercising any right shall operate as a waiver of that right, nor shall a single or partial exercise preclude further exercise.

13.3 Counterparts. This Memorandum may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

14. GOVERNING LAW; ENTIRE AGREEMENT; SEVERABILITY

14.1 Governing Law. This Memorandum shall be governed by and construed in accordance with the laws of the state specified below without regard to conflict of law principles.

14.2 Entire Agreement. This Memorandum constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, negotiations and understandings, whether written or oral.

14.3 Severability. If any provision of this Memorandum is held invalid or unenforceable, the remaining provisions will remain in full force and effect and the invalid or unenforceable provision will be replaced by a valid provision that most closely reflects the parties' original intent.

MISCELLANEOUS DETAILS

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