IAS Terms and Conditions
1. Non-Exclusive Appointment.
1.1 NY 2109 North, LLC D/B/A Cable Squad USA (“Cable Squad”) and Dealer entered into a Dealer Agreement and Dealer agrees to be bound by these additional Terms (collectively, the “Agreement”).
1.2 Cable Squad hereby appoints Dealer, and Dealer hereby accepts the appointment, to act as a non-exclusive dealer of the IAS Products and Services in accordance with the Agreement. Individuals who purchase or subscribe to IAS Products and Services through Dealer shall be referred to as “Customers”. Cable Squad may, in its sole discretion sell the IAS Products and Services to any other person, including distributors, retailers, and customers. By accepting this appointment, Dealer agrees to purchase all IAS Products and Services solely from Cable Squad under the IAS “PrePaid Program” and conform to all quality standards, marketing rules, applicable Provider Requirements (hereinafter defined) and operational guidelines established or as modified from time to time by Cable Squad and/or IAS (collectively “Guidelines”). Guidelines shall include, without limitation, those requirements and terms and conditions posted at any time by IAS located at http://mca.incomm.com, https://controlcenter.qpay123.com/controlcenter, and http://IncommAgentSolutions.com/carriers or as otherwise communicated to Dealer. Third party suppliers of certain IAS Products and Services (“Providers”) may impose certain requirements for the retail sale of such IAS Products and Services (“Provider Requirements”). These Guidelines are subject to change by Cable Squad and/or IAS in their sole discretion without notice to Dealer.
1.3 Dealer understands and agrees that Cable Squad will set, and may change from time to time, in its sole discretion, the terms, conditions, prices and pricing parameters for the IAS Products and Services and that Dealer shall not imply or represent anything to the contrary to any person or entity.
1.4 Unless otherwise expressly set forth herein or as agreed to in writing by Cable Squad, Dealer is solely responsible for all risks, liabilities, costs and expenses incurred in connection with its activities and those of its personnel, representatives, and other agents in the performance of its obligations under this Agreement.
2.1 Dealer Obligations. Dealer shall:
(a) market, advertise, promote, and sell the IAS Products and Services to Customers in a manner that reflects favorably at all times on the IAS Products and Services and the good name, goodwill and reputation of Cable Squad and IAS and consistent with good business practice, in each case using its best efforts to maximize the sales volume of the IAS Products and Services;
(b) post all point-of-sale marketing materials provided by Cable Squad or IAS and execute specific marketing agreements or other agreements as required by certain Providers in order to be eligible to offer certain IAS Products and Services;
(c) observe all directions, instructions, policies and Guidelines provided by Cable Squad and/or IAS in relation to the sale, marketing, advertisement, and promotion of the IAS Products and Services, as they currently exist or as they may hereafter be modified from time to time and not use any promotional and marketing materials, without the prior written consent of Cable Squad;
(d) not engage in any activity or business transaction which could be considered unethical or anti-competitive, in accordance with applicable laws or prevailing business standards;
(e) not make any materially misleading or untrue statements, including any deceptive or disparaging practices in advertising or otherwise concerning Cable Squad, IAS or the IAS Products and Services;
(f) not condition, tie or otherwise bundle any purchase of IAS Products and Services with purchase of other services or products other than as specifically agreed to in writing by Cable Squad and Cable Squad shall have the absolute right to approve or disapprove the content of any bundle of services, rebates, or products that Dealer intends to offer in conjunction with the IAS Products Services;
(g) not engage in any business, directly or indirectly, which offers, provides, markets or procures products or services which competes with the business of Cable Squad without Cable Squad’s prior written consent during the Term of this Agreement and for a period of one year after termination of this Agreement. This Section 2.1(g) shall also apply to Dealer’s affiliated entities and Dealer and its affiliated entities’ owners, shareholders, directors, officers and senior employees.;
(h) promptly notify Cable Squad of any complaint or adverse claim about any IAS Products and Services or its use;
(i) submit to Cable Squad complete and accurate monthly reports with information regarding marketing and sales of the IAS Products and Services in a format acceptable to Cable Squad, and maintain books, records, and accounts of all transactions and permit full examination thereof by Cable Squad in accordance with Section 7;
(j) provide customer support in connection with all activities performed by it hereunder in accordance with its normal course of business and industry practices. Such customer support provided by Dealer hereunder, when taken as a whole or in any particular respect, shall (1) not discriminate against Customers, and (2) be at levels or of a quality equivalent to reasonable industry standards;
(k) record, collect and pay all applicable federal, state and local sales, use, and other taxes, including without limitation, taxes in the income of Dealer, arising out of the transactions contemplated by this Agreement. Upon the request of Cable Squad or IAS, provide resale exemption certificates in connection with the transactions contemplated by this Agreement within three (3) days of such request.
2.2 Cable Squad’s Obligations. Cable Squad shall:
(a) provide any information and support that may be reasonably requested by Dealer regarding the marketing, advertising, promotion, and sale of the IAS Products and Services; and
(b) approve or reject, in its discretion, any promotional information or material submitted by Dealer for Cable Squad’s approval.
3. Orders Procedure.
3.1 Orders. Dealer shall utilize the intake and referral process/”sales flow” or such other process as approved by Cable Squad from time to time (“Order Intake and Referral Process”).
3.2 Cable Squad’s Right to Accept or Reject Orders. Cable Squad may, in its sole discretion, accept or reject any order for a potential customer submitted by or through Dealer (“Order”). No Order is binding unless accepted by Cable Squad and such IAS Products and Services is installed. Cable Squad reserves the right to reasonably allocate its installation service workforce in its sole discretion.
3.3 Availability/Changes in IAS Products and Services. Cable Squad may, in its sole discretion, add or make changes to the IAS Products and Services upon notice to Dealer.
3.4 Subscription Relationship. At all times the subscription relationship for IAS Products Services shall be between Customer and IAS. Dealer acknowledges that IAS shall have the right, in its sole discretion, to determine whether to serve or discontinue IAS Products and Services to any Customer.
4. Representations and Warranties.
4.1 Dealer represents and warrants that: (i) it has all necessary rights and interest to market and sell IAS Products and Services on or through the Authorized Sales Channels and any other Dealer property or tools used for marketing activities or otherwise hereunder, including any portions thereof, and that such rights and interest are free of any restrictions, settlements, judgments or adverse claims; (ii) it is duly organized and validly existing; (iii) the execution, delivery and/or performance of this Agreement shall not conflict with or result in any breach of any agreement, contract or legally binding commitment or arrangement to which Dealer is a party; and (iv) it is not subject to any limitation or restriction (including, without limitation, non-competition and confidentiality arrangements) that would prohibit, restrict or impede the performance of Dealer’s obligations under this Agreement.
4.2 Dealer further represents and warrants that: (i) Dealer’s (and all personnel’s) performance in connection with this Agreement will be completed in a professional and workmanlike manner in accordance with the highest industry standards; (ii) Dealer’s (and all personnel’s) performance in connection with this Agreement complies with all applicable laws, including, without limitation, Federal and State “Do Not Call” laws, the Telemarketing and Consumer Fraud and Abuse Telemarketing Act, the Federal Trade Commission’s Telemarketing Sales Rule, the Cable TV Privacy Act of 1984, laws governing emails and other digital communications, data privacy laws and laws governing advertising and solicitations; (iii) Dealer is PCI compliant and has developed, implemented and shall maintain a comprehensive information security program that includes administrative, technical, and physical safeguards and controls (collectively, “Security”) (iv) Dealer will not use any property that shall contain or otherwise be used to communicate any unlawful, threatening, abusive, false, libelous, defamatory, obscene, pornographic, profane, or otherwise infringing or objectionable content or material of any kind; (v) Dealer shall include only materials that Dealer is authorized to use; (vi) Dealer shall not use property that conflict with or infringe upon or violate any intellectual property rights or rights of publicity or privacy or other rights of, and shall not cause injury to, any person; (vii) Dealer shall not include, or use materials to perpetrate, any false, misleading or deceptive advertising; and (viii) all obligations owed to third parties with respect to the activities contemplated to be undertaken by Dealer under this Agreement including, but not limited to, all third-party licensing fees, are or shall be fully paid up by Dealer so that Cable Squad shall have no obligations with respect thereto.
5. Intellectual Property.
5.1 “Intellectual Property” includes, but is not limited to trademark(s), trade names, service marks, designs, logos, symbols, advertising materials and any other materials or properties owned or licensed by IAS and/or Cable Squad that are provided to Dealer for use in connection with this Agreement, including without limitation, any artwork and offers associated with its products and services. Notwithstanding anything in this Agreement to the contrary and in addition to and without limiting the terms and conditions of this Section 5, generally, Dealer’s use of the Intellectual Property at all times shall comply with the Guidelines provided by Cable Squad and/or IAS.
5.2 Dealer shall submit each proposed use of the Intellectual Property to Cable Squad for its approval. If Cable Squad does not approve the proposed use of the Intellectual Property in writing within ten (10) business days, such proposed use shall be deemed disapproved. All approvals granted in accordance herewith shall (i) be valid solely during the term specified by Cable Squad (or if no such term is specified, during the Term of this Agreement), and (ii) be limited to the specific purpose for which Dealer’s approval was sought and received (to the extent reasonably required in connection with Dealer’s performance in connection with this Agreement). Without limiting the foregoing, Dealer shall use appropriate trademark and other notices for the Intellectual Property on the materials prepared by or on behalf of Dealer, as directed in writing by Cable Squad and/or IAS.
5.3 All rights not expressly granted by Cable Squad and/or IAS are reserved. No implied licenses are granted by the terms of this Agreement and no license rights with respect to any Intellectual Property of IAS and/or Cable Squad shall be created by implication or estoppel.
6.1 IAS or Cable Squad shall pay to Dealer the Commission(s) described in EXHIBIT A for those IAS Products and Services activations (each, an “Activation”) that qualify for a Commission, if undisputed and less any applicable Chargebacks (as defined below). Dealer acknowledges that Commissions shall be the sole, full and total compensation due to Dealer under this Agreement. IAS and/or Cable Squad shall not have any obligation to pay to Dealer any Commission disputed in good faith by IAS and/or Cable Squad until the dispute is resolved to IAS and/or Cable Squad’s reasonable satisfaction.
6.2 IAS and/or Cable Squad may deduct, offset, suspend, withhold and/or otherwise retain from Commissions otherwise owed to Dealer, or directly charge to Dealer (in which case Dealer shall promptly pay to IAS and/or Cable Squad), certain amounts as set forth in this Agreement, including EXHIBIT A (collectively, “Chargebacks”).
6.3 Dealer agrees that in no event shall Cable Squad have any liability under this Agreement for any Commission not received by Dealer as a result of an error in any way attributable to: (i) any bank or financial institution; (ii) Dealer; (iii) IAS; or (iv) any other person or entity outside of Cable Squad’s direct control.
6.4 In addition to any other rights and remedies available, IAS and/or Cable Squad shall not be required to pay any Commissions to Dealer when Dealer is in breach or default of this Agreement, and IAS and/or Cable Squad shall have no liability to Dealer as a result of such suspension of payment. Without limiting the foregoing, if Dealer breaches this Agreement, IAS and/or Cable Squad may withhold payment of Commissions otherwise due to Dealer until an audit is completed.
7. Audit and Inspection Rights. During the Term of this Agreement and for a period of three (3) years following the termination or early termination of this Agreement, on request and during regular business hours, Cable Squad or its representatives may at its own expense reasonably inspect Dealer’s facility and audit Dealer’s books, records, and other documents as necessary to verify compliance with this Agreement.
8. Term; Termination.
8.1 Term. This Agreement shall be effective as of the Effective Date and unless sooner terminated in accordance with its terms, shall continue for a period of one (1) year (“Initial Term”) and, thereafter, shall be automatically renewed for successive one (1) year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless terminated by either party upon (i) thirty (30) calendar days’ notice to the other party prior to the expiration of the then current Initial Term or Renewal Term, as applicable, or (ii) in accordance with Sections 8.2 below.
8.2 Termination Rights. Notwithstanding anything to the contrary in this Agreement, Cable Squad may terminate this Agreement and the appointment of Dealer under Section 1, for any or no reason, at any time upon written notice to Dealer, and said termination shall become effective thirty (30) days following the delivery of such notice, except where a shorter period is provided for in this Agreement. In addition to any remedies that may be provided in this Agreement, Cable Squad may immediately terminate this Agreement, upon notice to Dealer if Dealer:
(a) fails to pay any amount when due under this Agreement;
(b) is in breach of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured within ten (10) days following Dealer’s receipt of notice of such breach;
(c) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
(d) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;
(e) seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts;
(f) makes or seeks to make a general assignment for the benefit of its creditors;
(g) applies for or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or
(h) receives an order by any court or governmental authority with proper jurisdiction which deems the activities of either party to be in conflict with an applicable law, or if Cable Squad and/or IAS loses any authorization necessary to provide the IAS Services.
8.3 Effect of Expiration or Termination. Upon the expiration or earlier termination of this Agreement:
(a) All rights granted herein shall immediately revert to Cable Squad and no residual rights shall remain with Dealer and Dealer shall cease all use of the intellectual property rights pursuant to this Agreement, including, without limitation with respect to Dealer’s use of Intellectual Property, and not use any marks confusingly similar thereto;
(b) Dealer shall cease to represent itself as Cable Squad’s authorized dealer regarding the IAS Products and Services, and shall otherwise desist from all conduct or representations that might lead the public to believe that Dealer is authorized by Cable Squad to sell the IAS Products and Services; and
(c) Dealer shall promptly return or destroy (pursuant to Cable Squad’s instructions) all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on Confidential Information or otherwise provided pursuant to this Agreement.
9. Confidential Information/Privacy.
9.1 All non-public, confidential or proprietary information of Cable Squad and/or IAS, including, but not limited to, financial plans, developments, strategies, market plans, business plans, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates (“Confidential Information”), disclosed by Cable Squad to Dealer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Cable Squad in writing. Upon Cable Squad’s request, Dealer shall promptly return or destroy all documents and other materials received from Cable Squad. Cable Squad shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is:
(a) in the public domain other than as a result of a disclosure by Dealer;
(b) known to Dealer prior to disclosure; or
(c) rightfully obtained by Dealer on a non-confidential basis from a third party.
9.2 Dealer shall comply with the Security and any Security Requirements in Exhibit B.
For the avoidance of doubt, this Section 9 shall not in any way limit Dealer’s additional obligations with respect to Personal Information, which obligations shall remain in effect and continue indefinitely following the termination or expiration of this Agreement, notwithstanding anything herein to the contrary.
10. Except as explicitly authorized in this Agreement or in a separate written agreement with Cable Squad, Dealer shall not modify, alter, reverse engineer, or otherwise change the IAS Products and Services it sells to Customers.
11. NEITHER CABLE SQUAD NOR ANY PERSON ON CABLE SQUAD’S BEHALF HAS MADE OR MAKES FOR DEALER’S BENEFIT ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR PURPOSE; (iii) TITLE; OR (iv) NON-INFRINGEMENT; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. DEALER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY CABLE SQUAD, OR ANY OTHER PERSON ON CABLE SQUAD’S BEHALF.
12. Compliance With Laws. Dealer shall at all times comply with all federal, state and local laws, ordinances, regulations and orders that are applicable to the operation of its business, and this Agreement and its performance hereunder. Without limiting the generality of the foregoing, Dealer shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement.
13. Indemnification. Subject to the terms and conditions of this Agreement, Dealer shall indemnify, hold harmless, and defend Cable Squad and its officers, directors, partners, members, shareholders, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, relating to any claim of a third party arising out of or occurring in connection with:
(a) Dealer’s acts or omissions as Dealer of the IAS Products and Services, including breach of this Agreement;
(b) Dealer’s advertising or representations that warrant performance of IAS Products and Services beyond that provided by Cable Squad’s written warranty or based upon Dealer’s business or trade practices;
(c) any failure by Dealer or its personnel to comply with any applicable laws;
(d) allegations that Dealer breached its agreement with a third party as a result of or in connection with entering into, performing under or terminating this Agreement; or
(e) Dealer’s failure to comply with the requirements set forth in Exhibit B, including, but not limited to a Security Requirements/Cardholder Data Security Breach.
14. LIMITATION OF LIABILITY. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT:
(a) IS CABLE SQUAD OR ANY CABLE SQUAD REPRESENTATIVE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF:
(i) WHETHER THE DAMAGES WERE FORESEEABLE;
(ii) WHETHER OR NOT CABLE SQUAD WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND
(iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) ON WHICH THE CLAIM IS BASED.
(b) SHALL CABLE SQUAD’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO CABLE SQUAD UNDER THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $1,000, WHICHEVER IS LESS.
THE FOREGOING LIMITATIONS APPLY EVEN IF THE DEALER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
15. Insurance. For the Term of this Agreement and a period of one (1) year thereafter, Dealer shall, at its own expense, maintain and carry insurance in full force and effect that includes, but is not limited to, commercial general liability (including product liability) with limits no less than $1,000,000 in the aggregate with financially sound and reputable insurers. Upon Cable Squad’s request, Dealer shall provide Cable Squad with a certificate of insurance and policy endorsements for all insurance coverage required, and shall not do anything to invalidate such insurance. The certificate of insurance shall name Cable Squad as an additional insured. Dealer shall provide Cable Squad with thirty (30) days’ advance written notice in the event of a cancellation or material change in Dealer’s insurance policy. Except where prohibited by law, Dealer shall require its insurer to waive all rights of subrogation against Cable Squad’s insurers, Cable Squad and the other Indemnified Parties.
16. Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
17. Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties and any other provision that, in order to give property effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
18. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
19. Amendments. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
20. Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
21. Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise. Notwithstanding the previous sentence, the parties intend that Dealer’s rights under Section 11 are Dealer’s exclusive remedies for the events specified therein.
22. Assignment. Dealer shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Cable Squad. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Dealer of any of its obligations hereunder. Cable Squad may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without Dealer’s prior written consent.
23. Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
24. No Third-Party Beneficiaries. Subject to the next paragraph, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person (including any Customer) any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
25. Choice of Law. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the principles of conflict of law. The parties hereto consent that any legal or equity proceeding brought in connection with, or arising out of, any matter relating to this Agreement, and the transaction to which it relates, shall be instituted only in a federal or state court of competent jurisdiction within the State of New York, County of Kings. Dealer hereby irrevocably consents to, and submits to the jurisdiction of, the courts of the State of New York, County of Kings, and waives any objection it or he may have to either the jurisdiction or venue of such courts. Dealer hereby further consents and agrees, and without limiting any other method of obtaining jurisdiction, that in any action or proceeding commenced under the terms of this Agreement, service of a summons and complaint or any other process in any action or proceeding, shall be sufficient if made on the Dealer by registered or certified mail, return receipt requested, at the last known address of the Dealer whether such address shall be within or without the jurisdiction of the court where such action or proceeding is pending, and the Dealer hereby unconditionally and irrevocably waives personal service of such process.
26. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
27. Force Majeure. No Party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party under this Agreement), when and to the extent the failure or delay is caused by or results from acts beyond the impacted party’s (”Impacted Party”) control (which events may include natural disasters, embargoes, explosions, riots, wars or acts of invasion or terrorism, pandemics, requirements of law, national or regional emergency) (each, a “Force Majeure Event”). A party shall give the other party prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. An affected party shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized, and resume full performance under this Agreement.
28. No Franchise or Business Opportunity Agreement. The parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between Cable Squad and Dealer. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Dealer has the sole discretion to determine Dealer’s methods of operation, Dealer’s accounting practices, the types and amounts of insurance Dealer carries, Dealer’s personnel practices, Dealer’s advertising and promotion, its Customers, and Dealer’s service areas and methods. The relationship created hereby between the parties is solely that of Cable Squad and dealer. If any provision of this Agreement is deemed to create a franchise relationship between the parties, then Cable Squad may immediately terminate this Agreement.
29. The Dealer agrees that during the term of this Agreement and after termination the Dealer and its shareholders, officers and directors will not disparage Cable Squad and/or IAS or any of their affiliates, officers, directors or employees. For purposes of this section, “disparage” shall mean any negative statement, whether written or oral, including communications made or transmitted on the internet or social media sites about Cable Squad and/or IAS. The parties agree and acknowledge that this non-disparagement provision is a material term of this Agreement, the absence of which would have resulted in Cable Squad refusing to enter into this Agreement. For the avoidance of doubt, no cure period shall apply.
COMMISSION RATE DECK
Commission Rates shall be provided to Distributor via email or otherwise by Cable Squad and are subject to change upon five (5) days notice.
CARDHOLDER DATA OBLIGATIONS
If and to the extent ever applicable in connection with Dealer’s performance under this Agreement, Dealer shall comply with the following:
In connection with its performance hereunder: (i) if and to the extent that any Cardholder Data (as defined below) of IAS’s subscribers or prospective subscribers is shared with, or stored, processed or transmitted by Dealer in connection with Dealer’s performance of its obligations under the Agreement, Dealer acknowledges that Dealer is responsible for the privacy and security of any and all Cardholder Data that Dealer, at any time, accesses, stores, processes, transmits, or otherwise possesses; and (ii) Dealer shall comply with all: (A) applicable laws, including, without limitation, 201 CMR 17.00, to the extent that Dealer collects, receives, stores, maintains, processes or otherwise has access to any Subscriber information or Cardholder Data, and (B) rules, regulations, standards, and security requirements of the PCI Security Standards Council and any credit or debit card provider, gift card provider, or other stored value and loyalty program card provider, including, but not limited to, American Express, Visa, U.S.A., Inc., MasterCard International, Inc., Discover Financial Services, LLC, and JCB International (the “Payment Brands”), including, without limitation, the current version of the Payment Card Industry Data Security Standard, (“PCI-DSS”), in each case, as such may be amended, modified, supplemented, or replaced from time to time (“Security Requirements”). For the purposes of this Agreement, “Cardholder Data” has the meaning provided in the PCI-DSS.
In the event of any Security Requirements/Cardholder Data Security Breach, or at any time if requested by IAS, Dealer shall permit IAS, any Affiliate of IAS, a Payment Card Industry (“PCI”) representative, and/or a PCI approved third party (individually or collectively, the “PCI Auditor”), to conduct a thorough review of Dealer’s books, records, files, computer processors, equipment, systems, physical and electronic log files, and facilities relating to the performance under this Agreement, to investigate or remediate a Security Requirements/Cardholder Data Security Breach or validate and confirm Dealer’s compliance with the Security Requirements (the “Audit”). Dealer shall provide the PCI Auditor with full cooperation and access to enable such Audit.