PRIVATE & CONFIDENTIAL
Authorised Agent Agreement
Fizz Telecom
CBS House
The Courtyard
Herts
AL4 0LA
Confirmation and Signatures 16
The below Agreement is made on the (date)
Fizz Telecom Limited a limited company incorporated in England and Wales registered under number 5019609 VAT Registered No 836 2714 24and whose registered office is at The Courtyard Alban Park Hatfield Road St. Albans, Herts. AL4 0LA hereinafter called Fizz.
and
a limited
company incorporated in
whose registered office is at
(The Agent)
Company Reg.
VAT Registered No.
Telephone No.
Whereas
Fizz wishes to appoint the Agent as its non-exclusive representative with respect to the provision of the Services and the Agent is willing to accept such appointment on the terms and conditions set out in this agreement:
The Agent has considerable expertise in the field of sales and marketing and is willing to make their expertise available to Fizz and its clients.
The Agent is a commercial organisation therefore this agreement is non exclusive on both the Agent and Fizz.
Fizz has agreed to engage the Agent and the Agent has agreed to accept such appointment on the terms and conditions hereinafter set out.
In this Agreement and in the recitals to it the following terms shall have the following meanings
THE ACT means the Telecommunications Act 1984 and any statutory modification or re-enactment of it.
AUTHORISED AGENT means a Fizz Approved Agent
ASSOCIATED COMPANY means, as appropriate, either Fizz or the Agents ultimate holding company or any subsidiary of either (holding company and subsidiary having the meanings as defined in Section 736 or Associate Company of the Companies Act 1985).
CONFIRMED SALES A customer who has been introduced by the Agent who receives the services from Fizz and who had paid in full for a full months worth of the complete services by Direct Debit.
CUSTOMER means a customer introduced by the Agent to Fizz.
GO LIVE DATE The date of the Electronic Date Record (EDR) complete as notified to Fizz by BT for all/the final the Call Line Identifier (CLI) on the customers contract
MARKETING INFORMATION all promotional material including any brochure user guide Information leaflet and instructions published by or on behalf of Fizz in connection with the Services.
MONTH OF THIS AGREEMENT means each calendar month during the term of this Agreement.
THE POLICIES & PROCEDURES means the procedures laid down in the Sales Information to be observed by the Agent in connection with this Agreement, including without limitation the procedures for seeking orders for the Services to be delivered by or on behalf of Fizz.
SALES INFORMATION means the sales information which shall be delivered from time to time by or on behalf of Fizz to the Agent and which at the time of reference is the latest version of it.
THE SERVICES means the Fizz services and products which are to be sold by the Agent as referred to in the Sales Information and any additional services that may be added from time to time to the Sales Information having been properly communicated to the Agent.
STANDARD TERMS means the standard terms and conditions for the
AND CONDITIONS supply of the Services by Fizz to Customers and which at the time of reference is the latest version of them.
Any reference in this Agreement to writing or cognate expressions includes a reference to facsimile or electronic transmission or other comparable means of communication.
Any reference in this Agreement to any statute or provision of a statute shall be construed as a reference to that statute or provision as amended re enacted or extended from time to time whether before or after the date of this Agreement.
The headings in this Agreement are for convenience only and shall not affect its interpretation.
Except where the context otherwise requires words denoting the singular include the plural and vice versa, words denoting any gender include all genders words denoting persons include firms and corporations and vice versa.
This Agreement shall subject as hereinafter provided be for a period of one year commencing on the date of this Agreement and thereafter shall continue unless terminated by at least 3 months prior written notice served by either party on the other party at any time after the first 9 months of this Agreement.
Additional commission may be payable from time to time in accordance with special short term sales promotions which Fizz may offer to Authorised Agents and which Fizz may withdraw at any time at its entire discretion by providing 7 (seven) days notice in writing. These sales promotions will be set out in writing by Fizz and specifically agreed by Fizz again in writing in advance of the promotion.
Fizz will pay to the Agent the commissions as defined in Appendix 1 in respect of all confirmed sales.
Fizz may at its entire discretion alter or vary the commission payable in Appendix 1 either up or down by the provision of 7 (seven) days notice sent to the agent in writing.
For the avoidance of doubt the commission structure set out in Appendix 1 and/or the existing retail prices offered by Fizz at the time of this agreement may be subject to variation either up or down by Fizz at any time and notice in writing of such variation will be given to the Agent 7 (seven days in advance of such a change).
Upon the date of this Agreement Fizz shall deliver to the Agent in writing:
(i) The Fizz Sales and Marketing information including the policies and procedures.
(ii) Sales and marketing Code of Practice for Fixed Line Telephone Services (OFCOM) Guidelines.
Applicable at the date of this Agreement and thereafter during the term Fizz shall deliver any revised version of the Sales and Marketing information and OFCOM guidelines to the Agent both of which may be amended from time to time.
The Agent must adhere to the provisions outlined in the Sales and Marketing information and the Sales and Marketing Code of Practice for Fixed Line Telephone Services (OFCOM) Guidelines any breach may result in termination of the Agent agreement by Fizz.
For the avoidance of doubt any contract for Fizz Services sold by the agent will be between Fizz and the Customer.
Without prejudice to its other rights Fizz shall be entitled to terminate this Agreement by seven (7) days written notice to the Agent
(a) if the Agent shall default in the due performance or observance of any of its material obligations under this Agreement and (in the case of a remedial breach) fails to remedy the breach within thirty (30) days of being requested by written notice to do so or
(b) if the Agent shall in Fizz's judgment fail to use its best endeavours to promote the Services and fails to remedy the situation within thirty (30) days of being requested by written notice so to do or
(c) if the Agent shall be guilty of fraud or misconduct or
(d) in the event of the Agent appointing an Administrative Receiver or going into liquidation or making any form of voluntary arrangement with its creditors.
(e) For the avoidance of doubt if the Agent shall default in the due performance or observance of Clause 6 this will be regarded as a material breach under this Agreement.
Upon termination of this Agreement for any reason all rights obligations and liabilities of either party will cease without prejudice to either parties rights or obligations up to termination with the exception of the provisions of and Sections 9 10 and 11 of this agreement shall continue notwithstanding termination.
At all times during this Agreement We shall act towards You dutifully and in good faith.
We shall be entitled from time to time to extend or amend down the range of the Services or discontinue the same by giving you at least 7 days written notice.
We shall
at our own expense promptly supply You with such samples catalogues price lists terms and conditions of sale advertising promotional and selling materials literature and information as Fizz considers necessary for the purpose of promoting sales of the Services.
Supply You with any information which may come into our possession which may assist You to sell the Services under this Agreement.
Honour any contracts which we have accepted as valid orders for the sale of the Services entered into under this Agreement.
Use all reasonable endeavours to promptly and efficiently deal with any after sales enquiry relating to the Services raised by a Customer.
Unless there is anything to the contrary in this Agreement give You notice of any changes in the range of the Services Our terms or conditions of sale or Our prices for the Services as will enable You to market and sell the Services in an effective manner.
We shall be responsible for sending to Customers suitable VAT invoices for all sales of the Services.
The Agent hereby undertakes and agrees with Fizz that it shall:
Subject to the provisions of Clause 6.1.3 below use its best endeavours to promote and extend the supply of the Services.
Procure that any contract for the sale of Services is made directly between Fizz and the Customer using the Fizz standard Terms and Conditions of Sale.
Not commit to supply any Customer with the Services unless Fizz has accepted the Customer's order for the Service in the manner set out in the Policies and Procedures.
With respect to all quotations for the supply of the Services to a Customer the Agent shall clearly identify any charges regarding line rental select services installation connection maintenance and commissioning to the extent these are applicable.
With respect to all quotations for the supply of the Services to a Customer the Agent shall only provide the relevant Fizz tariff(s) as provided to the Agent.
Conform and adhere to the Policies and Procedures and the Sales and Marketing Code of Practice in soliciting orders installing and bringing into service and where appropriate maintaining the Services.
Continue to maintain such sales and distribution personnel and facilities to ensure the most efficient and productive marketing and support of the Services.
Not permit any person on its behalf to sell the service other than Sub Agents approved by Fizz in writing pursuant to the provisions of Clause 6.1.11 below which in any event all responsibility and liability for the Sub Agents shall vest and remain with the Agent.
Ensure that such Sub Agents at their own expense send such of their personnel and at such times as Fizz considers necessary to training sessions conducted by the Agent or its nominee notified to Fizz by the Agents from time to time so as to remain abreast of the latest and most current Fizz standards.
Subject always to the indemnity set out in Clause 8 the Agent may appoint a Sub Agents to sell the Services and to seek orders for the provision of the Services by Fizz PROVIDED ALWAYS that the Agent shall ensure:
(a) Any person, partnership or body corporate proposed to be appointed as such a Sub Agent is first approved by Fizz in writing prior to their appointment.
(b) The terms of any agreement between the Agent and the Sub Agent are previously approved in writing by Fizz and shall include without limitation similar obligations to those imposed upon the Agent by this Agreement.
(c) The Sub Agent Agreement is directly between the Agent and the Sub Agent. Fizz will not be a party to that agreement.
(d) Any such Sub Agent shall not hold itself out nor suffer itself to be held out in respect of the Services as an Authorised Fizz Agent or in any other capacity other than as an agent of the Agent and shall not make or suffer to be made any use of the Fizz or BT name logo or any other trade mark of Fizz or BT except as expressly permitted by Fizz in the agency agreement.
(e) The Agent shall send to Fizz a copy of the agency agreement made with any such Sub Agent forthwith upon its execution by the Sub Agent and
(f) in the event of default in due performance or observance of any of the Sub Agents obligations under its agency agreement the Agent shall terminate forthwith such agency agreement in writing to the agent to that effect (providing a copy of such notice to Fizz) and in the case of a remedial breach the Agent shall first afford the Sub Agent an opportunity to remedy such breach within fourteen (14) days of the breach PROVIDED ALWAYS that the Agent shall not afford the Sub Agents an opportunity to remedy a breach where such breach is a breach of a material term of the agency agreement including without limitation any abuse by the agent of Fizz or BT's name reputation logo and/or trade marks.
(g) For the avoidance of doubt it is hereby acknowledged by the Agent that any breach of a material term of the agency agreement by the Sub Agent is construed as a breach of a material obligation of this agreement by the Agent.
Inform Fizz immediately of any changes in the Agents organisation or methods of doing business which might affect the performance of the Agents obligations under this Agreement.
Comply with all applicable laws best practice and regulations concerning the marketing and sale of the Services.
By the second Friday of every month submit a six month rolling forecast to Fizz of future sales in the format outlined in Appendix 2.
Maintain appropriate full proper and up to date records relating to the operation of this Agreement, which shall be made available to Fizz upon receipt of 48 hours written notice.
Not refer directly or indirectly to Fizz or Fizz Services in its marketing literature in its dealings with the Press or in trade literature or elsewhere except in terms previously approved by Fizz either in writing or verbally which shall immediately be confirmed in writing.
In all its marketing and publicity material and in dealings with third parties the agent shall make it clear that it is an Approved Agent of Fizz and not otherwise connected to or associated with Fizz and or BT and any of its subsidiaries.
Not remove tamper with or obliterate any Fizz trade mark service mark or trade name or logo from the Services or their packaging or labelling.
Within thirty (30) days of notice from Fizz to the Agent from time to time with respect to any reprogramming of the Services (or such other period expressly agreed between the Agent and Fizz in accordance with this Agreement following a request from the Agent showing reasonable cause for such extension) the Agent shall reprogram or arrange through the maintainer of the Services to re-programme such Customer equipment as advised by Fizz and shall make no charge to Fizz which shall not be reasonable in the circumstances and further without prejudice to the foregoing such charge shall be no more than the Agents standard time and materials rate with respect to the engineer carrying out such reprogramming. The Agent shall make no charge to any Customer with respect to such reprogramming.
Inform Fizz in writing should your status as a limited company change.
(a) Fizz grants to the Agent on the terms set out in this Agreement a non exclusive licence to use such trade names trade marks or service marks as may be required by Fizz for the purposes of distributing the Services under this agreement such non-exclusive licence to be coterminous with this Agreement.
(b) The Agent shall use such trade names trade marks or service marks as may be required by Fizz for the purposes of distributing the Services under this agreement in the form stipulated by Fizz and shall observe Fizz reasonable directions regarding the use of such trade names trade marks or service marks in all literature publicity material sales aid promotions campaigns and the like for which the Agent shall submit details to Fizz for prior approval which approval shall not be unreasonably withheld or delayed.
(c) If the Agent wishes to use its own trade names trade marks or service marks for the purposes of distributing the Services it shall ensure that any such trade name trade mark or service mark is kept entirely separate from Fizz or BT's trade names trade mark or service marks and no composite mark shall be permitted.
(d) The Agent undertakes that it will not use any trade names trademarks or service marks of Fizz or BT other than those trade names trademarks and service marks which Fizz may require the Agent to use.
(e) The Agent recognises the proprietary rights of Fizz and BT in its trade names trade marks domain names or service marks and undertakes not to do any act either alone or jointly with others which may jeopardise or in any way infringe Fizzs title to its trade names trade marks or service marks or which might invalidate or contravene any registration of such marks.
(f) The Agent shall give Fizz written notice promptly should the Agent become aware of any use or proposed use by any other person firm or company of a trade name trade mark or service mark or other promotional advertising which might infringe Fizz trade names trade marks or service marks.
(g) Fizz shall be entitled to take whatever steps it considers necessary in the case of an infringement or alleged infringement and the Agent will assist Fizz to the extent that Fizz may reasonably require (but at the cost of Fizz) to protect Fizz and BT's rights and to contest any infringement.
(h) Upon termination of this Agreement for any reason whatsoever the Agent shall immediately cease to make use of Fizz trade names trade marks or service marks and shall do and execute all such acts deeds and things that Fizz shall require for the purpose of cancellation of the non-exclusive licence granted under this agreement.
(i) The Agent acknowledges that its use of Fizz's trade names trade marks or service marks has not created for itself any rights in such marks and if any such rights have been created the Agent undertakes to assign such rights to Fizz at the request of Fizz.
Commission and commission rates are published in our Sales information. Fizz reserves the right to alter the Sales information and resulting commission rates at any time under this agreement.
In the event that any contract for the supply of any of the services subject to this Agreement is terminated in the first year of supply for reason of misrepresentation deception or other substantial reason no commission shall be due and any payment made to the Agent in respect of the services shall be repayable to Fizz.
In the event that any Customers contract for the supply of any product or service supplied to a Customer introduced by the Agent is terminated within a month for any reason or the customer fails to pay at least one months payment for the full service (currently understood to include both call charges and line rental) Fizz shall be entitled to either reclaim in full any Commission paid to the Agent and/or deduct such sum or sums in full from any payment of Commission otherwise due from Fizz to the Agent.
In the event that Fizz overpays Commission to the Agent Fizz shall be entitled to withhold part or the whole of any future payments of Commission which may become due to the Agent in lieu of such overpayment at its discretion.
In the event of any dispute between Fizz and the Agent as to the amount of Commission payable Fizz shall be entitled to withhold any part or all of the Commission which is in dispute until such dispute is resolved.
Fizz will be under no liability to pay the Agent for any income received from customers introduced by the Agent after the termination of this Agreement.
Directly or indirectly solicit approach or entice or endeavour to entice away from Fizz any consultant authorised agent of Fizz.
The parties consider the restrictions in clause 9.1.1 to 9.1.3 to be reasonable but if a Court of competent jurisdiction finds any of them to be unenforceable the parties agree to accept any modifications to the extent or duration of the restriction concerned which the Court sees fit to impose or if it does not see fit which is reasonably necessary to render the restriction enforceable.
Each of the restrictions in this clause are agreed to be a separate obligation and shall be severally enforceable as such. In the event of any restriction being determined as being unenforceable in whole or in part for any reason such unenforceability shall not affect the enforceability of the remaining restrictions or in the case of part of a restriction being unenforceable the remainder of that restriction.
Liability and Indemnity (Exclusion)
Subject always to sub-clauses 10.2 and 10.3 below the Agent acknowledges that Fizz excludes all responsibility and liability with respect to any deficiency in the Services supplied to the Agent and further Fizz shall not in any circumstances be liable to the Agent whether in contract tort or otherwise including any liability for negligence for any indirect loss consequential or indirect loss or damage howsoever arising and of whatsoever nature including (without limitation) loss of profit loss of contracts loss of operation time loss of any equipment or process or any other form of loss whatsoever (whether or not similar to some or any of the foregoing) suffered or incurred directly or indirectly by the Agent in respect of the Services.
Without prejudice to Clause 10.3 below nothing in sub-clause 10.1 shall limit or restrict or be deemed or construed to limit or restrict the liability of Fizz for death or personal injury to any person caused by its negligence.
The Agent shall indemnify Fizz (and keep indemnified notwithstanding the termination of this Agreement) and otherwise hold Fizz harmless against all claims and proceedings brought by any third party arising from or incidental to any default by any agent of the terms of its agency agreement executed under the provisions of Clause 6.1.10 above.
The Agent shall not use, divulge or communicate to any person (other than those whose province it is to know the same or with proper authority) any of the trade secrets or other confidential information of Fizz including in particular lists or details of suppliers of or customers of services on behalf of Fizz (both current and those who were suppliers or customers during the previous 2 years) which it may have received or obtained whilst in the service of Fizz.
The Agent undertakes to Fizz that it will not at any time after the termination of this agreement use, publish or otherwise disclose to any person any such confidential information of Fizz.
The restrictions set out in 10.1 and 10.2 above shall not apply to information or knowledge which becomes available to the public generally otherwise than by the Agents default.
The Agent will deliver up to Fizz on request from time to time during the course of this agreement and on the termination of this agreement all notes and records (including copies) made by the Agent relating to the provision of his services to Fizz pursuant to this agreement and all other material containing confidential information of Fizz and all documents notes specifications and any other property belonging to or relating to the business of Fizz or its clients or suppliers and all copies of any such documents.
Any notice or other communication sent by post may be served by sending it by pre paid registered or recorded delivery post to the address specified for the relevant party in this Agreement (Fizz Telecom, CBS House, The Courtyard, Alban Park, Hatfield Road, St Albans, Herts AL4 0LA or emailed to [email protected]) or to such other address as may be notified by either party to the other. Any such notice or communication sent by pre paid registered or recorded delivery post shall be deemed to have been served upon receipt thereof. Any notice sent by facsimile transmission shall be deemed to have been delivered on the same day of its despatch to the correct facsimile number (01727 816667).
Agent address:
Email:
The Sales Information Policies and Procedures are incorporated by reference in this Agreement as though set out in their entirety in this agreement.
Save as set out in clause 14.1 this Agreement represents the entire understanding between the parties in relation to the subject matter of this agreement and supersedes all other agreements. And representations made by either party whether oral or written save that neither party excludes or seeks to exclude liability for fraud to the other by reference to clause 11.2.
This Agreement shall prevail over any inconsistent terms or conditions referred to in correspondence or elsewhere and any conditions or stipulations to the contrary are hereby excluded and extinguished.
A person who is not party to this agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
The failure on the part of either party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of such right or of any other right on any later occasion.
If either You or Us are affected by Force Majeure then the affected party shall forthwith notify the other of the nature and extent of it.
Neither of Us shall be deemed to be in breach of this Agreement or otherwise be liable to the other by reason of any delay in performance or non performance, of any obligations under this Agreement to the extent that such delay or non performance is due to any Force Majeure of which it has notified the other party and the time for performance of that obligation shall be extended accordingly.
If the Force Majeure lasts for a continuous period in excess of six months we shall enter into bona fide discussions with You with a view to alleviating its effects or to agreeing alternative arrangements which may be fair and reasonable.
This Agreement shall be governed by and construed in accordance with the laws of England, and each party agrees to submit to the exclusive jurisdiction of the English Courts except that we may enforce this Agreement or any rights it may have hereunder in any jurisdiction.
In this Agreement the singular shall include the plural and vice versa and headings are inserted for ease of reference only and shall not affect the interpretation of the clause to which they relate.
Fizz shall have the right to assign or otherwise delegate all or any of its rights and obligations under this agreement to any Associated Company or to any other person without the necessary notification to the Agent.
The Agent shall not assign, delegate or otherwise deal with all or any of its rights and obligations under this Agreement without prior written consent of Fizz.
This Agreement shall only be amended by instrument in writing signed by the duly authorised officer of each party to it except that the Sales Information the Specifications and/or the Procedures may be amended unilaterally by Fizz by delivery from time to time in writing of such amended Sales Information Specifications and / or Policies and Procedures by Fizz to the Agent.
Miscellaneous
All Agents will be responsible for their employees and ensure they abide by this agreement.
This Agreement shall from the effective date operate in substitution for any agreement previously in force whether written or oral between Fizz and the Agent.
The expiration or determination of this Agreement shall not affect such of its provisions hereof as are expressed to operate, or have effect thereafter and shall be without prejudice to any right of action already accrued to either party in respect of any breach of this Agreement by any other party.
Entire Agreement
The various provisions of this Agreement are severable and if any provisions hereof are held to be invalid or unenforceable by any court of competent jurisdiction then such invalidity or unenforceability shall not affect the remaining provisions of this Agreement.
In witness whereof, the hands of the parties of their duly authorised representatives the day and year first before written.
SIGNED by
Name (Print)
Position of Authorised
Representative
For and on behalf of
Date
In the presence of Sign:
Print Name:
SIGNED by
Name (Print)
Position of Authorised Director
Representative
For and on behalf of Fizz Telecom Limited
Date
In the presence of Sign:
Print Name:
Appendix 1
Rollout period - Fizz will pay 2.5 Euros per hour per Telesales Operative as minimum remuneration for the first 3 weeks of the rollout period. In the event that the average sales exceed the 2.5 Euro hourly rate threshold the higher figure will be paid.
The Agent will provide a minimum if 20 Telesales Operatives who will be available for training during the rollout period and who will meet the following criteria.
Available on a full-time basis to the Fizz campaign.
Fizz will provide initial training throughout the rollout period and thereafter such continued support and additional training as considered reasonably necessary at the entire discretion of Fizz and in agreement with the Agent.
To clarify
The Agent will provide not less than 20 Telesales Operatives who meet the agreed criteria throughout the minimum campaign term of 6 months.
A Fizz sales day will consist of 7 hours committed time to outbound telesales.
Scope of this Agreement
Both
parties acknowledge that Fizz Telecom Ltd require an exclusive arrangement for
the deployment of not less than 20 Telesales Operatives for a period of not
less than 24 months from the date of this Agreement. Telesales Operatives will
be engaged in making outbound telephone sales calls into the
In agreement with Fizz Telecom, the Agent may increase the number of Telesales Operatives deployed to the Fizz campaign who must meet the agreed criteria as previously described.
During
the term of this Agreement the Agent, either by itself or through a subsidiary
or associated organisation, will not provide similar services to any other
organisation providing telecom services in the
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person per day (7 Hours) |
person per day (7 Hours) |
person per day (7 Hours) |
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The above hourly rate will be paid out weekly by Fizz. The hourly rate will be calculated from all contracts received in each week period starting Friday and finishing the following Thursday. The closing day for receipt of contracts will be the Friday morning of the week of calculation. The hourly rate will then be calculated. The payment for this period will be paid out by BACS to the agent on the Friday 10 working days after the date of calculation.
For avoidance of doubt
Example
200 contracts received by Friday closing date
20 Telesales Operatives
200 contracts divided by 20 telesales = 10
10 divided by 5 working days = 2
Hourly rate = 16 Euros
Payment: 16 Euros X 7 hours X 5 working days = 560 Euros
560 Euros X 20 agents = 11,200 Euros
In all cases
For customers that do not transfer their lines to Fizz (only their calls via Carrier pre select) a commission of 15% of call spend (excluding VAT) will be paid to the agent for shorter of the period the customer remains with Fizz or 5 years from transfer.
You are obliged to submit all available contracts relating to an individual customer simultaneously and on one contract.
For new lines/contracts sold to existing customers commission will only be paid if the period between initial sale and the new contract is over 30 calendar days.
Note for multi-site customers please refer back to Fizz for acceptance in writing of any variation to the above.
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