SME Sales Network, LLC.

Business Associate Agreement: HIPAA

This Business Associate Agreement (“BAA”) is entered into by and between SME Sales Network, LLC. (“Business Associate”) and (“Vendor” and “Sub-Contractor Business Associate”) and concerns access to Protected Health information. Business Associate and Sub-Contractor Business Associate shall be collectively referred to herein as the “Parties”). Vendor is a Sub-Contractor Business Associate under the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and must comply with all terms and conditions of this BAA.

Sub-Contractor Business Associate and Business Associate agree to the following in order to secure compliance with HIPAA, the requirements of Subtitle D of the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”), (Pub. L. 111-5, §§ 13400 to 13423), and more specifically with the Privacy and Security Rules at 45 C.F.R. Part 160 and Part 164, subparts A, C, D and E (collectively referred to herein as the “HIPAA Standards”).

 

1.  Definitions:

   1. “Breach” shall have the same meaning as the term is defined in section 45 C.F.R. 164.402 and shall also include any use or disclosure of PHI that violates the HIPAA Standards and shall also include a State Breach, as defined herein.

       

   2. Sub-Contractor Business Associate” shall mean Vendor as that term is defined in 45 C.F.R. § 160.103.

       

   3. “Covered Entity” shall have the same meaning as the term “covered entity” in 45 C.F.R. § 160.103.

       

   4. “Designated Record Set” shall have the same meaning as the term “designated record set” in 45 C.F.R. § 164.501.

       

   5. “Electronic Health Record” shall have the same meaning as the term is defined in section 13400 of the HITECH Act (42 U.S.C. §17921(5).

       

   6. “Individual” shall have the same meaning as the term “individual”’ in 45 C.F.R. § 160.103 and shall include a person who qualifies as a personal representative as defined in 45 C.F.R. § 164.502(g).

       

   7. “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 C.F.R. part 160 and part 164, subparts A and E.

       

   8. “Protected Health Information” or “PHI” shall have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, and includes electronic PHI, as defined in 45 C.F.R. 160.103, limited to information created, maintained, transmitted or received by the Sub-Contractor Business Associate from or on behalf of the Covered Entity or Business Associate or from another Sub-Contractor Business Associate of the Covered Entity and Business Associate.

       

   9. “Recipients” shall mean agents, including subcontractors of Sub-Contractor Business Associate, which receive PHI disclosed by Sub-Contractor Business Associate

       

   10. “Required by Law”’ shall have the same meaning as the term “required by law” in 45 C.F.R. § 164.103.

        

   11. “Secretary” shall mean the Secretary of the Department of Health and Human Services or his or her designee.

        

   12. “More stringent” shall have the same meaning as the term “more stringent” in 45 C.F.R. § 160.202.

        

   13. “Security Incident” shall have the same meaning as the term “security incident” in 45 C.F.R. § 164.304.

        

   14. “Security Rule” shall mean the Security Standards for the Protection of Electronic Protected Health Information at 45 C.F.R. part 160 and part 164, subpart A and C.

        

   15. “Unsecured protected health information” shall have the same meaning as the term as defined in 45 C.F.R. 164.402.
       
       

2. Obligations and Activities of Sub-Contractor Business Associate.

   1. Sub-Contractor Business Associate is required to safeguard the use, publication and disclosure of information on all applicants for, and all clients who receive, services under the service agreement between Business Associate and Sub-Contractor Business Associate in accordance with all applicable federal and state law regarding confidentiality, which includes but is not limited to HIPAA, more specifically with the Privacy and Security Rules at 45 C.F.R. Part 160 and Part 164, subparts A, C, and E; and

    

   2. Sub-Contractor Business Associate agrees not to use or disclose PHI other than as permitted or required by this BAA or as Required by Law.

    

   3. Sub-Contractor Business Associate agrees to use and maintain appropriate safeguards and comply with applicable HIPAA Standards with respect to all PHI and to prevent use or disclosure of PHI other than as provided for in this BAA and in accordance with HIPAA Standards.

       

   4. Sub-Contractor Business Associate agrees to use administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of electronic Protected Health Information that it creates, receives, maintains, or transmits on behalf of the Covered Entity and Business Associate.

       

   5. Sub-Contractor Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to the Sub-Contractor Business Associate of a use or disclosure of PHI by Sub-Contractor Business Associate in violation of this BAA.

       

   6. Sub-Contractor Business Associate agrees to report to Business Associate any use or disclosure of PHI not provided for by this BAA or any Security Incident of which it becomes aware.

       

   7. Sub-Contractor Business Associate agrees, in accordance with 45 C.F.R. 502(e)(1)(ii) and 164.308(d)(2), if applicable, to ensure that any subcontractors that create, receive, maintain or transmit PHI on behalf of the Sub-Contractor Business Associate, agree to the same restrictions, conditions, and requirements that apply to the Sub-Contractor Business Associate with respect to such information.

       

   8. To the extent applicable, Sub-Contractor Business Associate agrees to provide access (including inspection, obtaining a copy or both), at the request of the Business Associate, and in the time and manner designated by the Business Associate, to PHI in a Designated Record Set, to Business Associate or, as directed by Business Associate, to an Individual in order to meet the requirements under 45 C.F.R. § 164.524. Sub-Contractor Business Associate shall not charge any fees greater than the lesser of the amount charged by the Covered Entity or Business Associate to an Individual for such records; the amount permitted by state law; or the Sub-Contractor Business Associate’s actual cost of postage, labor and supplies for complying with the request.

       

   9. To the extent applicable, Sub-Contractor Business Associate agrees to make any amendments to PHI in a Designated Record Set that the Business Associate directs or agrees to pursuant to 45 C.F.R. § 164.526 at the request of the Business Associate, and in the time and manner designated by the Business Associate.

       

   10. Sub-Contractor Business Associate agrees to make internal practices, books, and records, including policies and procedures and PHI, relating to the use and disclosure of PHI received from, or created, maintained, transmitted or received by, Sub-Contractor Business Associate on behalf of Covered Entity and Business Associate, available to Business Associate or to the Secretary in a time and manner agreed to by the Parties or designated by the Secretary, for purposes of the Secretary investigating or determining Covered Entity and Business Associate’s compliance with the HIPAA Standards.

        

   11. To the extent applicable, Sub-Contractor Business Associate agrees to document such disclosures of PHI and information related to such disclosures as would be required for Covered Entity and Business Associate to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528 and section 13405 of the HITECH Act (42 U.S.C. § 17935) and any regulations promulgated thereunder.

        

   12. Sub-Contractor Business Associate agrees to provide to Business Associate, in a time and manner designated by the Business Associate, information collected in accordance with this BAA, to permit Business Associate to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. §164.528 and section 13405 of the HITECH Act (42 U.S.C. § 17935) and any regulations promulgated thereunder. Sub-Contractor Business Associate agrees at the Business Associate’s direction to provide an accounting of disclosures of PHI directly to an individual in accordance with 45 C.F.R. § 164.528 and section 13405 of the HITECH Act (42 U.S.C. § 17935) and any regulations promulgated thereunder.

        

   13. Sub-Contractor Business Associate agrees to comply with any State or federal law that is more stringent than the Privacy Rule.

        

   14. Sub-Contractor Business Associate agrees to comply with the requirements of the HITECH Act relating to privacy and security that are applicable to the Covered Entity and Business Associate and with the requirements of 45 C.F.R. §§ 164.504(e), 164.308, 164.310, 164.312, and 164.316.

    

   15. Sub-Contractor Business Associate agrees to notify Business Associate, in writing, within five Days of the request in the event that an Individual requests that the Sub-Contractor Business Associate:

       1. restrict disclosures of PHI;

           

       2. provide an accounting of disclosures of the Individual’s PHI;

           

       3. provide a copy of the Individual’s PHI in an Electronic Health Record; or

           

       4. amend PHI in the Individual’s Designated Record Set

    

   16. To the extent applicable, Sub-Contractor Business Associate agrees that it shall not, and shall ensure that its subcontractors do not, directly or indirectly receive any remuneration in exchange for PHI of an Individual without:

       1. the written approval of the Business Associate, unless receipt of remuneration in exchange for PHI is expressly authorized by this BAA; and

           

       2. the valid authorization of the Individual, except for the purposes provided under section 13405(d)(2) of the HITECH Act, (42 U.S.C. § 17935(d)(2)) and in any Business Associate regulations.

    

   17. Obligations in the Event of a Breach.

       1. The Sub-Contractor Business Associate agrees that, following the discovery by the Sub-Contractor Business Associate or by a subcontractor of the Sub-Contractor Business Associate of any use or disclosure not provided for by this BAA, any breach of Unsecured protected health information, or any Security Incident, it shall notify Business Associate of such Breach in accordance with Subpart D of Part 164 of Title 45 of the Code of Federal Regulations and this BAA.

           

       2. Such notification shall be provided by the Sub-Contractor Business Associate to the Business Associate without unreasonable delay, and in no case later than 30 days after the Breach is discovered by the Sub-Contractor Business Associate, or a subcontractor of the Sub-Contractor Business Associate, except as otherwise instructed in writing by a law enforcement official pursuant to 45 C.F.R. 164.412. A Breach is considered discovered as of the first day on which it is, or reasonably should have been, known to the Sub-Contractor Business Associate or its subcontractor. The notification shall include the identification and last known address, phone number and email address of each Individual (or the next of kin of the individual if the Individual is deceased) whose Unsecured protected health information has been, or is reasonably believed by the Sub-Contractor Business Associate to have been, accessed, acquired, or disclosed during such Breach.

           

       3. The Sub-Contractor Business Associate agrees to include in the notification to Business Associate at least the following information:

          1. A description of what happened, including the date of the Breach; the date of the discovery of the Breach; the unauthorized person, if known, who used the PHI or to whom it was disclosed; and whether the PHI was actually acquired or viewed.

              

          2. A description of the types of Unsecured protected health information that were involved in the Breach (such as full name, Social Security number, date of birth, home address, account number, or disability code).

              

          3. The steps the Sub-Contractor Business Associate recommends that Individual(s) take to protect themselves from potential harm resulting from the Breach.

              

          4. A detailed description of what the Sub-Contractor Business Associate is doing or has done to investigate the Breach, to mitigate losses, and to protect against any further Breaches.

              

          5. Whether a law enforcement official has advised the Sub-Contractor Business Associate, either verbally or in writing, that he or she has determined that notification or notice to Individuals or the posting required under 45 C.F.R. 164.412 would impede a criminal investigation or cause damage to national security and; if so, contact information for said official.

        

       4. If directed by Business Associate, the Sub-Contractor Business Associate agrees to conduct a risk assessment using at least the information in subparagraphs (i) though (iv) above, inclusive of (2)(q)(3) of this Section and determine whether, in its opinion, there is a low probability that the PHI has been compromised. Such recommendation shall be transmitted to the Business Associate within 20 business days of the Sub-Contractor Business Associate’s notification to the Business Associate.

           

       5. If the Business Associate determines that there has been a Breach, as defined in 45 C.F.R. 164.402, by the Sub-Contractor Business Associate or a subcontractor of the Sub-Contractor Business Associate, the Sub-Contractor Business Associate, shall cooperate with Business Associate in order to enable  Business Associate information to fulfill its notification obligations required by 45 C.F.R. 164.404 and 45 C.F.R. 164.406.

           

       6. In addition to the requirements of this Section 2(q), the Vendor agrees to implement reasonable systems for the discovery and prompt reporting of any breach of individually identifiable information (including but not limited to PHI, and referred to hereinafter as “Individually Identifiable Information”) that, if misused, disclosed, lost or stolen, Business Associate believes would trigger an obligation under one or more State data breach notification laws (each a “State Breach”) to notify the individuals who are the subject of the information. Such systems must be described in writing and submitted to Business Associate for review and approval within thirty (30) days of the date of this Agreement, along with any procedures Vendor will use to fully and promptly notify Business Associate of any such breach. A similar process must be in place in writing between Vendor and Recipients, and Vendor shall submit the same to Business Associate for approval by Business Associate.  Business Associate shall respond to Vendor’s or Recipient’s written safeguards within thirty (30) days of receipt of same and shall not unreasonably withhold its approval. Vendor agrees that in the event any Individually Identifiable Information is lost, stolen, used or disclosed in violation of one or more State data breach notification laws, Vendor shall promptly: (i) cooperate and assist Business Associate with any investigation into any State Breach or alleged State Breach: (ii) cooperate and assist Business Associate with any investigation into any State Breach or alleged State Breach conducted by any State Attorney General or State Consumer Affairs Department (or their respective agents); (iii) comply with Business Associate’s determinations regarding Business Associate’s and Vendor’s obligations to mitigate to the extent practicable any potential harm to the individuals impacted by the State Breach; and (iv) assist with the implementation of any decision by Business Associate or any State agency, including any State Attorney General or State Consumer Affairs Department (or their respective agents), to notify individuals impacted or potentially impacted by a State Breach. The same terms applying to Vendor in this section apply equally to any and all Recipients who may have access to the individual’s Individually Identifiable Information (including PHI); Recipient’s duty is to Vendor as Vendor’s duty is to Business Associate.

           

       7. Should Sub-Contractor Business Associate be the cause of a Breach, Sub-Contractor Business Associate shall reimburse Business Associate for the reasonable costs associated with notification obligations to the patient individuals, State and Federal Agencies and media outlet as applicable.  Such costs may include maintenance of call center, credit monitoring and mailing of letters.
          
          

3. Permitted Uses and Disclosure by Sub-Contractor Business Associate.

   1. General Use and Disclosure Provisions. Except as otherwise limited in this BAA, Sub-Contractor Business Associate may use or disclose PHI to perform functions, activities, or services for, or on behalf of Covered Entity and Business Associate as specified in this BAA, provided that such use or disclosure would not violate the HIPAA Standards if done by Covered Entity and Business Associate or the minimum necessary policies and procedures of the Covered Entity and Business Associate.

       

   2. Specific Use and Disclosure Provisions.

      1. Except as otherwise limited in this BAA, Sub-Contractor Business Associate may use PHI for the proper management and administration of Sub-Contractor Business Associate or to carry out the legal responsibilities of Sub-Contractor Business Associate.

          

      2. Except as otherwise limited in this BAA, Sub-Contractor Business Associate may disclose PHI for the proper management and administration of Sub-Contractor Business Associate, provided that disclosures are Required by Law, or Sub-Contractor Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person, and the person notifies Sub-Contractor Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

          

      3. Except as otherwise limited in this BAA, Sub-Contractor Business Associate may use PHI to provide data aggregation services to Business Associate as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B).
         
         

4. Provisions for Business Associate to Inform Sub-Contractor Business Associate of Privacy Practices and Restrictions.

   1. Business Associate shall notify Sub-Contractor Business Associate of any limitations in its notice of privacy practices of Business Associate, in accordance with 45 C.F.R. § 164.520, or to the extent that such limitation may affect Sub-Contractor Business Associate’s use or disclosure of PHI.

       

   2. Business Associate shall notify Sub-Contractor Business Associate of any changes in, or revocation of, permission by Individual(s) to use or disclose PHI, to the extent that such changes may affect Sub-Contractor Business Associate’s use or disclosure of PHI.

       

   3. Business Associate shall notify Sub-Contractor Business Associate of any restriction to the use or disclosure of PHI that Business Associate has agreed to in accordance with 45 C.F.R. § 164.522, to the extent that such restriction may affect Sub-Contractor Business Associate’s use or disclosure of PHI.
      
      

5. Permissible Requests by Business Associate.
   1. Business Associate shall not request Sub-Contractor Business Associate to use or disclose PHI in any manner that would not be permissible under the HIPAA Standards if done by the Covered Entity and Business Associate, except that Sub-Contractor Business Associate may use and disclose PHI for data aggregation, and management and administrative activities of Sub-Contractor Business Associate, as permitted under this BAA.
      
      
6. Term and Termination.

   1. Term. The term of this BAA shall be effective as of the date any service agreement between the Business Associate and Sub-Contractor Business Associate is effective and shall terminate when the information collected in accordance with provision (2)(k) of this BAA is provided to Business Associate and all of the PHI provided by Business Associate to Sub-Contractor Business Associate, or created or received by Sub-Contractor Business Associate on behalf of Business Associate, is destroyed or returned to Business Associate, or, if it is infeasible to return or destroy PHI, protections are extended to such information, in accordance with the termination provisions in this section.

    

   2. Termination for Cause Upon Business Associate’s knowledge of a material Breach by Sub-Contractor Business Associate, Business Associate shall either:

      1. Provide an opportunity for Sub-Contractor Business Associate to cure the Breach or end the violation and terminate the BAA if Sub-Contractor Business Associate does not cure the breach or end the violation within the time specified by the Business Associate; or

          

      2. Immediately terminate this BAA if Sub-Contractor Business Associate has breached a material term of this BAA and cure is not possible.

    

   3. Effect of Termination.

      1. Upon termination of this BAA, for any reason, Sub-Contractor Business Associate shall return or destroy all PHI received from Business Associate, or created, maintained, or received by Sub-Contractor Business Associate on behalf of Business Associate. Sub-Contractor Business Associate shall also provide the information collected in accordance with section (2)(k) of this BAA to the Business Associate within ten Days of the notice of termination. This section shall apply to PHI that is in the possession of subcontractors or agents of Sub-Contractor Business Associate. Sub-Contractor Business Associate shall retain no copies of the PHI.

          

      2. In the event that Sub-Contractor Business Associate determines that returning or destroying the PHI is infeasible, Sub-Contractor Business Associate shall provide to Business Associate notification of the conditions that make return or destruction infeasible. Upon documentation by Sub-Contractor Business Associate that return or destruction of PHI is infeasible, Sub-Contractor Business Associate shall extend the protections of this BAA to such PHI and limit further uses and disclosures of PHI to those purposes that make return or destruction infeasible, for as long as Sub-Contractor Business Associate maintains such PHI. Infeasibility of the return or destruction of PHI includes, but is not limited to, requirements under State or federal law that the Sub-Contractor Business Associate maintains or preserves the PHI or copies thereof.
         
         

7. Miscellaneous Provisions.

   1. Regulatory References. A reference in this BAA to a section in the HIPAA Standards means the section as in effect or as amended.

       

   2. Amendment. The Parties agree to take such action as is necessary to amend this BAA from time to time as is necessary for Business Associate to comply with requirements of HIPAA, the HITECH Act and the HIPAA Standards (all as amended).

       

   3. Survival. The respective rights and obligations of the Parties shall survive the termination of this BAA.

       

   4. Construction. This BAA shall be construed as broadly as necessary to implement and comply with HIPAA, the HITECH Act and the HIPAA Standards (all as amended). Any ambiguity in this BAA shall be resolved in favor of a meaning that complies, and is consistent with, HIPAA, the HITECH Act and the HIPAA Standards (all as amended).

       

   5. Disclaimer. Business Associate makes no warranty or representation that compliance with this BAA will be adequate or satisfactory for Sub-Contractor Business Associate’s own purposes. Business Associate shall not be liable to Sub-Contractor Business Associate for any claim, civil or criminal penalty, loss or damage related to or arising from the unauthorized use or disclosure of PHI by Sub-Contractor Business Associate or any of its officers, directors, employees, Recipients or agents, or any third party to whom Sub-Contractor Business Associate has disclosed PHI contrary to the sections of this BAA or applicable law. Sub-Contractor Business Associate is solely responsible for all decisions made, and actions taken, by Sub-Contractor Business Associate regarding the safeguarding, use and disclosure of Individually Identifiable Information (including PHI) within its possession, custody or control.

       

   6. No Warranty. TO THE EXTENT PHI IS PROVIDED TO VENDOR BY BUSINESS ASSOCIATE, SUCH PHI IS PROVIDED SOLELY ON AN “AS IS” BASIS. BUSINESS ASSOCIATE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

       

   7. Indemnification. The Sub-Contractor Business Associate shall indemnify, defend and hold  Business Associate and its officers, directors, employees, agents, successors and assigns harmless,  from and against any and all claims, liabilities, judgments, fines, assessments, penalties, awards and any statutory damages that may be imposed or assessed pursuant to HIPAA, the HIPAA Standards, or the HITECH Act (all as amended), including, without limitation, reasonable attorney’s fees, expert witness fees, costs of investigation, litigation or dispute resolution, and direct costs awarded thereunder (collectively, “Information Disclosure Claims”) relating to or arising from: (i) the use of disclosure of Individually Identifiable Information (including PHI) in violation of the terms of this Agreement or applicable law, and (ii) whether in oral, paper or electronic media, any Breach of unsecured PHI and/or Individually Identifiable Information.  If Vendor assumes the defense of an Information Disclosure Claim, Vendor shall not take any action with respect to any Information Disclosure Claim without the prior written consent of Business Associate.  To the extent permitted by law, Vendor shall be fully liable to Business Associate for any acts, failures or omissions of Recipients in furnishing the services as if they were Business Associate’s own acts, failures or omissions. 

       

   8. Assignment. Vendor may not assign (whether by operation of law or otherwise) any of its rights or delegate or subcontract any of its obligations under this downstream BAA without the prior written consent of the Business Associate. Notwithstanding the foregoing, Business Associate shall have the right to assign its rights and obligations hereunder to any entity that is an affiliate or successor of Business Associate or assignee of the Business Associate, without the prior approval of Vendor.

       

   9. Severability.  Any provision of this Agreement that is determined to be invalid or unenforceable will be ineffective to the extent of such determination without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such remaining provisions.

       

   10. Nature of Agreement; Independent Contractor. Nothing in this Agreement shall be construed to create (i) a partnership, joint venture or other joint business relationship between the Parties or any of their affiliates, or (ii) a relationship of employer and employee between the Parties. Vendor is an independent contractor, and not an agent of Business Associate. This Agreement does not express or imply any commitment to purchase or sell goods or services.

        

   11. Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart executed by the party against whom enforcement of this Agreement is sought.  Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in portable document format (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same force and effect as physical execution and delivery of the paper document bearing the original signature.                             

 

 

SME Sales Network, LLC.

Background Screening Disclosure Form

Please be advised that a consumer report may be obtained on you for employment purposes, which includes independent contractors under the Fair Credit Reporting Act (FCRA).

 

Consumer reports may be obtained at any time after the company receives your written authorization, including during the contracting process; and, during any subsequent period of your association with the company, where permitted by law.

 

Under the FCRA, consumer reports include any written, oral or other communication of information by a consumer reporting agency bearing on your credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living that is used or is expected to be used for contracting purposes. Consumer reports may include credit reports, criminal records and driving records, among other forms of information obtained from private and public record sources.

 

 

SME Sales Network, LLC.

Background Screening Authorization Form

Please be advised that we may also obtain an investigative consumer report including information as to your character, general reputation, personal characteristics, and mode of living. This information may be obtained by contacting and/ or conducting personal interviews with your present and previous employers or references supplied by you. Please be advised that you have the right to request, in writing, within a reasonable time, that we make a complete and accurate disclosure of the nature and scope of the investigation requested.

 

Additional information concerning the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., is available at the Federal Trade Commission’s web site (http://www.ftc.gov). For more information, including information about additional rights, go to www.consumerfinance.gov/ or write to: Consumer Financial Protection Bureau, PO Box 4503, Iowa City, IA 52244.

 

By signing below, I hereby authorize the company to obtain a consumer report and/or an investigative consumer report on me, and further authorize all entities having information necessary to complete a consumer report and/or investigative consumer report on me to release such information to the company or any of its affiliates or carriers, including: present and former employers; personal references; criminal justice agencies; law enforcement and all other federal, state and local agencies; federal, state and local courts; the military; departments of motor vehicles and motor vehicle records agencies; schools and learning institutions; licensing agencies; and credit bureaus and credit reporting agencies.

 

By signing below, I acknowledge the information that can be disclosed to the consumer reporting agency, if and only as allowed by law, includes information concerning my employment and earnings history, education, credit history, motor vehicle history, criminal history, military service, and professional credentials and licenses.

 

By signing below, I acknowledge and agree that this Background Screening Authorization Form shall remain valid and in effect during the term of my contract, subject to applicable laws, and authorize the company to obtain a consumer report and/or an investigative consumer report on me during the hiring process as well as at any time during the term of my employment and/or contract, where permitted by law.

A SUMMARY OF YOUR RIGHTS UNDER THE FAIR CREDIT REPORTING ACT

 

The federal Fair Credit Reporting Act (FCRA) promotes the accuracy, fairness, and privacy of information in the files of consumer reporting agencies. There are many types of consumer reporting agencies, including credit bureaus and specialty agencies (such as agencies that sell information about check writing histories, medical records, and rental history records).

 

Here is a summary of your major rights under the FCRA. For more information, including information about additional rights, go to www.consumerfinance.gov/learnmore or write to: Consumer Financial Protection Bureau, 1700 G Street N.W., Washington, DC 20552.

• You must be told if information in your file has been used against you. Anyone who uses a credit report or another type of consumer report to deny your application for credit, insurance, or employment - or to take another adverse action against you - must tell you, and must give you the name, address, and phone number of the agency that provided the information.
• You have the right to know what is in your file. You may request and obtain all the information about you in the files of a consumer reporting agency (your “file disclosure”). You will be required to provide proper identification, which may include your Social Security number. In many cases, the disclosure will be free.

 

 You are entitled to a free file disclosure if:

• a person has taken adverse action against you because of information in your credit report;
• you are the victim of identity theft and place a fraud alert in your file;
• your file contains inaccurate information as a result of fraud;
• you are on public assistance;
• you are unemployed but expect to apply for employment within 60 days.

 

In addition, all consumers are entitled to one free disclosure every 12 months upon request from each nationwide credit bureau and from nationwide specialty consumer reporting agencies.

See www.consumerfinance.gov/learnmore for additional information.

 

• You have the right to ask for a credit score. Credit scores are numerical summaries of your credit-worthiness based on information from credit bureaus. You may request a credit score from consumer reporting agencies that create scores or distribute scores used in residential real property loans, but you will have to pay for it. In some mortgage transactions, you will receive credit score information for free from the mortgage lender.
• You have the right to dispute incomplete or inaccurate information. If you identify information in your file that is incomplete or inaccurate, and report it to the consumer reporting agency, the agency must investigate unless your dispute is frivolous. See www.consumerfinance.gov/learnmore for an explanation of dispute procedures.
• Consumer reporting agencies must correct or delete inaccurate, incomplete, or unverifiable information. Inaccurate, incomplete or unverifiable information must be removed or corrected, usually within 30 days. However, a consumer reporting agency may continue to report information it has verified as accurate.
• Consumer reporting agencies may not report outdated negative information. In most cases, a consumer reporting agency may not report negative information that is more than seven years old, or bankruptcies that are more than 10 years old.
• Access to your file is limited. A consumer reporting agency may provide information about you only to people with a valid need usually to consider an application with a creditor, insurer, employer, landlord, or other business. The FCRA specifies those with a valid need for access.
• You must give your consent for reports to be provided to employers. A consumer reporting agency may not give out information about you to your employer, or a potential employer, without your written consent given to the employer. Written consent generally is not required in the trucking industry. For more information, go to www.consumerfinance.gov/learnmore.
• You may limit “prescreened” offers of credit and insurance you get based on information in your credit report. Unsolicited “prescreened” offers for credit and insurance must include a toll-free phone number you can call if you choose to remove your name and address from the lists these offers are based on. You may opt out with the nationwide credit bureaus at 1-888-5-OPTOUT (1-888-567-8688).
• You may seek damages from violators. If a consumer reporting agency, or in some cases a user of consumer reports or a furnisher of information to a consumer reporting agency violates the FCRA, you may be able to sue in state or federal court.
• Identity theft victims and active duty military personnel have additional rights. For more information, visit www.consumerfinance.gov/learnmore.
• States may enforce the FCRA, and many states have their own consumer reporting laws. In some cases, you may have more rights under state law. For more information, contact your state or local consumer protection agency or your state Attorney General.

 

For information about your federal rights, contact:

SME Sales Network, LLC.

INDEPENDENT SALES AGENT AGREEMENT

 

This INDEPENDENT SALES AGENT AGREEMENT (“Agreement”) is entered into the 1^st day of September 2022 (the “Effective Date”), by and between SME SALES NETWORK, LLC (“SME”), with an office located at 4099 McEwen Road, Suite 700, Farmers Beach, TX 75244 and

                                                                            , an entity incorporated or organized under the laws of

                                , with a mailing address of                                  (“Sales Agent”). SME and Sales Agent shall be referred to herein as the “Parties”.

 

WHEREAS, SME is in the business of maintaining an independent contractor sales channel for its affiliates;

 

WHEREAS, SME’s affiliates are not primarily in the business of sales, rather SME’s affiliates devote their time, effort, and resources to develop, refine, and specialize in account receivable management solutions (“ARM”), call center related services, and business process outsourcing services (“BPO”) for business entities throughout the United States (collectively, “Services”); and

 

WHEREAS, Sales Agent desires to become, an independent contractor sales agent of SME to sell the following Services of SME’s affiliates: Accelerator®, Profit Recovery®, Profit Recovery Plus, and third- party contingency collections (“Products”).

 

NOW THEREFORE, the Parties for good and valuable consideration hereby agree as follows:

 

1.       SALE OF PRODUCTS FOR SME’S AFFILIATES.

SME grants Sales Agent the non-exclusive right to market, solicit and sell the Products of SME’s affiliates in the United States and its territories, pursuant to the terms and conditions in this Agreement. The Sales Agent covenants that it will not solicit business or sell the Products beyond the geographical boundaries of the United States.

 

2.       SME AND ITS AFFILIATES NAMES.

SME, through a license provided by its affiliates, hereby grants Sales Agent a limited, royalty-free license to use the name, trademarks, and trade names of SME’s affiliates that provide the Products in furtherance of Sales Agent’s sales efforts in compliance with this Agreement. Upon termination of this Agreement by either Sales Agent or SME for any reason, the license provided per this Section shall terminate, and Sales Agent will immediately and permanently stop using SME’s affiliates’ names, trademarks, trade names, and related copyrighted materials.

 

3.       INDEPENDENT CONTRACTOR RELATIONSHIP.

1. The relationship of Sales Agent to SME is at all times that of an independent contractor. Neither Sales Agent, nor anyone affiliated with Sales Agent, is an employee, partner, or joint venturer of or with SME or its Sales Agent shall have the limited authority (as determined by the Sales Agent) to perform the following acts on behalf of SME’s affiliates in connection with selling the Products:
   1. To inform clients and prospective clients of SME’s affiliates’ Products;
   2. To sell the Products of SME’s affiliates; and
   3. To manage client needs regarding the sale of Products, and follow up with clients that Sales Agent has sold SME’s affiliates’ Products to in the past (in order to determine if additional Products should be purchased by the Client); and
   4. To facilitate the securing of form contracts created by SME’s affiliates for sales of the Products (“Client Contract”); and
   5. To facilitate payments to SME affiliates for Products by delivering checks payable to SME affiliates or by facilitating payments to SME affiliates via credit card and ACH.

 

2. Notwithstanding the matters covered herein, Sales Agent agrees not to open a bank account or any other financial account in the name of SME or any of its affiliates.

 

3. Sales Agent also represents, warrants, and agrees to refrain from holding out to the public any title that indicates or implies Sales Agent: (i) is anything other than an independent sales agent of SME; (ii) is authorized to make or enter into any contracts, agreements, or obligations on behalf of SME or its affiliates beyond those authorized herein. A breach of this paragraph shall be a Material Change in Circumstances per Section 14 herein.

 

4. Except as set forth in the Agreement, Sales Agent shall be free from control or direction by SME over the operation of its business and its performance under this Agreement. Sales Agent and its owners’, employees’, agents’, contractors’, and representatives’ (collectively, “Sales Agent’s Representatives”) independent judgment and discretion will be required since Sales Agent must manage client relationships and decide matters of significance without oversight or input.

 

5. On or before the date of Sales Agent’s first sale of any Product, Sales Agent will provide SME with Sales Agent’s Employer Identification Number (“EIN”).

 

6. In the event Sales Agent asserts or claims there is any relationship with SME or its affiliates other than that of an independent contractor; and/or in the event any governmental board, agency, commission, or court, having jurisdiction over this Agreement or any of the Parties, determines that this Agreement creates a relationship other than that of an independent contractor relationship, or determines Sales Agent and/or any individuals affiliated with Sales Agent and/or any individuals similarly situated to Sales Agent are employees of SME or its affiliates, such assertion, claim, or determination shall constitute a Material Change in Circumstances, resulting in immediate termination of this Agreement.

 

7. The Parties warrant, represent and agree that this Agreement is entered into based on the fundamental understanding and agreement that Sales Agent will at all times hold itself out as an independent contractor and not as an employee of SME or its affiliates. Any representation by Sales Agent to any person, client, governmental board, agency, commission, or court, that Sales Agent and/or any similarly situated individual is not an independent contractor shall constitute a Material Change in Circumstances, resulting in immediate termination of this Agreement.

 

8. Sales Agent acknowledges and agrees that it is an independent contractor of SME, and Sales Agent acknowledges and agrees Sales Agent and Sales Agent’s Representatives do not maintain or have a relationship with any of SME’s affiliates regardless of whether or not Sales Agent is selling Products of SME’s affiliated entities.

 

9. Sales Agent warrants, represents and agrees that if it has any concerns that SME is asking Sales Agent to perform duties that may call into question Sales Agent’s independent contractor classification, Sales Agent shall report, in writing, such concerns to SME’s Chief Revenue Officer or other designated SME employee on or before the date when such duties are to be performed. Failure to timely report such concerns shall constitute a Material Change in Circumstances, resulting in immediate termination of this Agreement.

 

10. Sales Agent understands, acknowledges, and agrees that SME and its affiliates have other sales channels that do not compete with the Products or alter or negate the independent contractor relationship between Sales Agent and SME.

 

11. Sales Agent shall be solely responsible for the payment of all taxes with respect to commissions earned hereunder. SME will not pay or deduct any taxes including by way of example FICA, federal income tax, state income tax, workers’ compensation insurance premiums, state disability insurance, unemployment benefit insurance or tax, or any other amounts that are ordinarily paid or withheld by an employer on behalf of an employee.

 

4.       COMMISSIONS.

1. Subject to terms and conditions herein, SME will pay Sales Agent commissions for Products sold to SME’s affiliates’ clients after: (i) a signed contract is received by SME’s affiliate; and

(b) SME’s affiliate receives funds in connection with the signed contract.

 

1. Fixed Fee Services: The SME commission schedule for Phase I - Fixed Fee Products (Accelerator®, Profit Recovery®, Profit Recovery Plus) sold by Sales Agent is provided in Exhibit 1 attached hereto (“Commission Guide”), which is made part of this Agreement.

 

2. Contingency Collections: The SME commission schedule for Phase II - Contingency Collections is included in the Commission Guide, which is made part of this Agreement.

 

3. Chargebacks: If any of SME’s affiliates refund any or all of the selling price of the Products or Services to a client for any reason, except non-performance per a performance guarantee in the Client Contract, the amount of such refund up to the amount of the commission will be deducted from any commissions that would otherwise be due to Sales Agent under this If an order is sold and the client’s check or payment is returned for non-sufficient funds (NSF), stop payment, or electronic chargeback, or the order is cancelled, the full commission will be recovered from Sales Agent’s scheduled commission payment(s). If a client utilizes Products without paying according to the payment terms of the Client Contract, the amount of the commission paid to the Sales Agent will be charged back to Sales Agent in the future commission date(s) to the Sales Agent. Notwithstanding the foregoing, SME, in its sole discretion, may issue a warning to Sales Agent in event that a sale by the Sales Agent is in arrears or otherwise owes money to SME’s affiliate(s) relating to the Products sold by Sales Agent.

 

4. New Orders & Reorders: For the purpose of this Agreement, a “New Order” shall be defined herein and in the attached Exhibits as an order for Fixed Fee Services purchased by a client to whom Sales Agent has not previously sold Products or SME’s affiliates have not provided Services, in the past. A New Pay as Used (“PAU”) order shall be considered New Order only if the client places at least five accounts within 120 days of signing the contract. A “Reorder” herein and in the attached Exhibits is an order from an existing SME affiliate client that is in good standing with SME’s affiliate and the Sales Agent.

 

5. Offset Right. To the extent that any commission is owed to Sales Agent and a balance is owed to SME for the Technology Fee, Sales Agent acknowledges and agrees that SME may offset any Technology Fees owed to SME by deducting such fees from the commission due to Sales Agent.

 

6. Changes in Commission. SME retains the right to amend the Commissions in the Commission Guide upon thirty (30) calendar days’ written notice to Sales Agent. To the extent that Sales Agent does not agree to the changes in commission rate, Sales Agent shall have the right to terminate this Agreement without fee or penalty to Sales Agent or

 

5.       SUGGESTED RETAIL SALES PRICE.

The suggested retail sales price is a price provided by SME for its affiliates’ Products (“Suggested Retail Price”). The Suggested Retail Price is included in the Commission Guide (e.g., Exhibit No. 1, Section III). SME retains the right to amend the Suggested Retail Price in the Commission Guide upon thirty (30) calendar days’ written notice to Sales Agent. To the extent a prospective customer will not agree to the Suggested Retail Pricing, Sales Agent must seek SME’s approval of the reduced pricing. If Sales Agent sells Products for a price less than the Suggested Retail Price without SME’s affiliate’s approval, SME’s affiliate will retain the amount that it would have received if that order had been sold for the Suggested Retail Price. In that event, Sales Agent agrees to accept a lesser commission amount, to be determined by SME, which in certain instances may be $0.00, as full compensation for Sales Agent’s efforts in connection with selling the Products at a fee rate below the Suggested Retail Price.

 

6.       CPO FEE.

Sales Agent and SME agree and understand SME charges a processing fee (referred to as the “CPO Fee”) on New Orders and Reorders. The amount of the CPO Fee on each sale is non- commissionable. The CPO fee is referenced in the Commission Guide and subject to change upon thirty (30) calendar days’ notice to Sales Agent. The CPO Fee may include an additional surcharge, as determined by SME, in connection with additional requirements or material edits (as determined by SME) to the Client Contract.

 

7.       PAYMENT FOR SME’s AFFILIATES SERVICES.

Sales Agent shall forward to SME’s affiliate each New Order or Reorder that Sales Agent negotiates with an existing or prospective client of SME’s affiliate, together with evidence of the payment to SME’s affiliate (to the extent applicable) within two (2) business days of the sale if the client or prospective client tenders payment via live check (i.e., signed contract and receipt of payment from SME affiliate’s client). Sales Agent further agrees that each such payment shall be made payable to the order of the SME affiliates’ corporate name. Sales Agent shall have no right of any kind whatsoever to receive payment or to endorse or deposit any check or payment for any Products. Payment for Products will be deemed received by SME’s affiliate and credited to Sales Agent per the terms of this Agreement upon the moneys being actually received by SME’s affiliate.

 

8.       COMPANY MATERIALS & TECHNOLOGY PLATFORM.

1. SME will provide, in electronic format for Sales Agent’s optional use, training or sales materials relating to SME’s affiliates’ Products (hereinafter referred to as the “Materials”); Sales Agent’s use of such materials is 100% voluntary and Sales Agent shall bear the cost of printing or production of such Materials should Sales Agent incorporate the Materials into Sales Agent’s sales efforts.

 

2. If Sales Agent desires to use any materials not furnished by SME in furtherance of its performance under this Agreement, Sales Agent will provide a copy of such materials for SME’s review to determine if such materials are consistent with the license granted to SME by SME’s affiliates.

 

3. SME maintains a series of guides, which are applicable to SME in connection with the use of each SME affiliate’s name and likeness in the sale of the Products and interacting with prospective and existing customers of SME’s To the extent any of SME’s affiliates modify or amend the manner in which SME may use the SME affiliates’ name or likeness, SME may modify the terms of the applicable guides on thirty (30) calendar days’ prior written notice to the Sales Agent, seeking Sales Agent’s acknowledgement of same. To the extent that Sales Agent does not agree to such changes, Sales Agent may terminate this Agreement in its entirety without penalty or fee to either Party.

 

4. SME may opt to maintain certain marketing materials and information about the Products and SME’s affiliates in electronic format on a cloud-based technology platform, which the Sales Agent and its Representatives may access from time to In connection with accessing or maintaining information on SME’s technology platform, Sales Agent agrees to pay forty dollars ($40) per month (“Technology Fee”) during the term of this Agreement.

9.       CONFIDENTIAL INFORMATION.

1. In consideration of the benefits provided to Sales Agent through this Agreement, Sales Agent, including Sales Agent’s Representatives, agrees and covenants to consider all materials (including any materials posted or hosted on SME’s technology platform), SME’s training guides, Commission Guide, contracts, agreements, client lists, financial information, pricing data, commission data, status reports, and other documents of SME and its affiliates, including names and information about prospective clients for the Products (hereinafter referred to as “Confidential Materials”), confidential and the sole property of SME during the term of this Agreement and after its Sales Agent agrees, during the term of this Agreement and after its termination, Sales Agent, including any independent contractor, employee, or representative of Sales Agent, will not use or distribute, directly or indirectly, any Confidential Materials to any persons except as is reasonable and appropriate in connection with the selling the Products or to SME’s officers, employees, or duly appointed authorized agents.

 

2. Sales Agent may share Confidential Materials with its principals, employees, and contractors (“Representatives”) engaged in assisting the Sales Agent in selling the Products so long as Sales Agent agrees to inform any Representatives receiving Confidential Material of the confidential nature of such Confidential Materials and that by receiving such Confidential Materials they are required to comply with the terms of this Agreement applicable to Confidential Materials. Sales Agent shall be responsible to SME and its affiliates for any action or failure to act that would constitute a breach or violation of this Agreement by any Sales Agent’s Representative.

 

3. Nothing herein shall be construed as granting Sales Agent any property rights, by license or otherwise, to any Confidential Materials of SME’s affiliates, or to any invention or any patent, copyright, trademark, or other intellectual property right of SME or its Sales Agent shall not make, have made, use or sell any Product or service or other item using, incorporating or derived from any of the Confidential Material without SME’s prior written consent, which may be withheld in SME’s sole discretion.

 

4. The obligations under this Section 9 will survive the termination of this Agreement. Sales Agent further covenants that upon termination of this Agreement it will destroy or return to SME within five (5) business days, all Confidential Materials, and other documents of SME and its affiliates, including clients of the Products or Services and other documents containing the names and addresses of SME’s affiliates’ clients, including any Confidential Materials held by an independent contractor, employee, agent, or representative of Sales

 

10.   AGREEMENT NOT TO SOLICIT OR INTERFERE WITH SME’S AFFILIATES’ CLIENTS.

1. During the term of this Agreement and for a period of twelve (12) months after the date of termination of this Agreement, Sales Agent, including any employee or independent contractor of Sales Agent, shall not call upon for competitive purposes, solicit, divert, take away, or attempt to solicit for competitive purposes any of the clients or prospective clients of SME’s affiliates with whom Sales Agent had direct or indirect contact during the term of this Agreement related to the selling of Products or learned of through SME, any SME affiliate, or the sales platforms provided (e.g., Outstand) to Sales Agent. Sales Agent acknowledges and agrees all clients to which Sales Agent sells Services are clients of SME’s affiliates in connection with abiding by the terms of this Section.


2. Sales Agent and SME agree that any damage caused by a breach of the non-solicitation covenant in this Section will be irreparable and it would be difficult or impracticable to determine the actual damages to SME or its affiliates caused by any such breach. Sales Agent therefore agrees SME shall, in its sole option and discretion, be entitled to: (i) indemnification from Sales Agent for all damages Sales Agent, including any independent contractor, representative, or employee of Sales Agent, causes SME or SME’s affiliates, or (ii) payment from Sales Agent, as liquidated damages, of either $5,000 per violation, or 50% of the SME’s affiliate’s revenue from the client relationship(s) that Sales Agent violated under Section 10(a) during the 12-month period prior to Sales Agent’s initial act(s) taken in violation of Section 10(a), whichever is greater. Sales Agent further agrees to pay all reasonable attorney’s fees and related costs SME incurs in enforcing this section and/or seeking any relief or damages for Sales Agent’s violations of this section. Sales Agent agrees SME shall be entitled to an injunction prohibiting or restricting Sales Agent’s breach of the covenants in this Agreement without the necessity of posting bond. The remedies for any such breach are not exclusive and SME shall be entitled, in addition, to any other remedies at law or in equity. The covenants and restrictions in this Section 10 shall survive termination of this Agreement. To the extent any covenants or restrictions in this Agreement are deemed unenforceable as written, the Parties expressly authorize the arbitrator or judicial body having jurisdiction over the Parties to reform, revise, delete, or add to the covenants and restrictions to the extent necessary to enforce the intent of the Parties and to preserve Confidential Materials and other business interests of SME and its affiliates with effective protection.

 

11.   RIGHT TO WITHDRAW SALE OF SERVICES OR PRODUCTS.

SME reserves the right to withdraw or cancel the selling of the Products of SME’s affiliates from any state, jurisdiction, or territory or any part thereof, if it so chooses due to a Material Change in Circumstance or in the event SME’s affiliates no longer engage SME to provide independent contractor sales network services for the Products in a specific region, jurisdiction, or nationally. SME will provide Sales Agent thirty (30) days’ written notice of any such withdrawal or prohibition on the sale of the Products pursuant to this Section.

 

12.   PERMITS AND LICENSES.

Sales Agent agrees to refrain from performing soliciting or selling the Products in any state or territory unless and until Sales Agent has secured all necessary licenses, permits and other governmental approvals required to do business in such state or jurisdiction. Sales Agent agrees to comply with all local, state, and federal laws in conducting business under this Agreement and to take all steps necessary to qualify Sales Agent to do business therein. Sales Agent shall bear all costs connected with Sales Agent maintaining good standing and proper registrations, as well as any required licenses or permits, and all ancillary costs required by such licenses (i.e., maintaining a physical office). It is specifically agreed and understood that, if Sales Agent fails to apply for and maintain any such licenses or permits required to do business in any state or jurisdiction, SME shall have the right to terminate this Agreement, and Sales Agent is solely responsible for any fines, penalties, or liability resulting from its failure to maintain required licenses or permits. Sales Agent agrees to provide copies of all such licenses and permits at the request of SME.

 

13.   NON-WAIVER, PART PERFORMANCE DOES NOT PRECLUDE LATER DEMAND FOR FULL PERFORMANCE.

The failure of SME or Sales Agent to insist on full performance of any part of this Agreement or the waiver by either party of any breach under this Agreement shall not prevent a subsequent enforcement of such term nor be deemed a waiver of any subsequent breach of said term, nor prevent demand of full performance of said part of this Agreement from the other party at a later date.

 

14.   EFFECTIVE DATE & TERMINATION.

1. The Agreement shall commence on the Effective Date and continue until terminated by either party pursuant to the provisions of this Section 14.


2. Mutual Termination Right. The Parties can agree to terminate this Agreement at any


3. Termination for Material Change in SME shall have the right to immediately terminate this Agreement upon any event or the enactment of any governing law or the entry of any court order or government agency decision that materially limits, restricts or burdens either (A) Sales Agent’s freedom, right, capacity, or ability to sell the Products; or (B) SME’s affiliates’ ability to provide Products; or (C) substantially affects SME’s costs in providing an independent contractor network to SME’s affiliates (each, a “Material Change in Circumstances”). In addition to other

   circumstances described in in this Agreement, any of the following shall also constitute a Material Change in Circumstances:

   1. Dissolution of Sales Agent, administrative dissolution of Sales Agent, or Sales Agent’s failure to maintain good standing in the states it is registered;
   
   
   2. SME’s loss or expiration of contractual privity with all of SME’s current affiliates in which the Sales Agent sells Products;
   
   
   3. The filing of bankruptcy petition or entry of an order of relief under Title 11 of the United States Code by Sales Agent;
   
   
   4. Sales Agent’s commencement of, cooperation, or participation in any claim, demand, arbitration, or lawsuit against SME or its affiliates in which claims are asserted or threatened against SME or its affiliates which relate to this Agreement, or challenge Sales Agent’s status as an independent contractor; or
   
   
   5. Any assertions by Sales Agent or its officer, owners or principals that Sales Agent is not an independent contractor under either state or federal law.


4. Termination for Cause by Sales Agent. This Agreement may be terminated by Sales Agent upon SME’s failure to cure an alleged breach by SME, after Sales Agent provides thirty (30) days’ written notice to SME setting forth the alleged breach and the prospective effective date of termination, received via certified mail at SME’s address in this Agreement, or such other address provided by SME.


5. Termination for Cause by SME. This Agreement may be terminated by SME for cause, upon written notice from SME to Sales Agent’s most recent available address or emailed to Sales Agent’s email of record, setting forth the grounds of termination of the The term “cause” shall include, but not necessarily be limited to, the following:
   1. Breach by Sales Agent of any promise, warranty, representation, agreement or covenant contained in this Agreement or in any Exhibit, as determined by SME, including but not limited to Sales Agent’s failure to comply with Section 12 above.
   
   
   2. Failure to pay the Technology Fee in four (4) consecutive
   
   
   3. Failure of Sales Agent to write a New Order within a period of one hundred twenty (120) days following the Effective Date of this Agreement (“Initial Sales Period”). Such contract termination shall be automatic and without notice to Sales Agent upon the expiration of the Initial Sales Period.
   
   
   4. After the Initial Sales Period, failure of Sales Agent to sell at least two (2) New Orders in two (2) consecutive calendar months.
   
   
   5. Sales Agent’s use or misuse, in any way, of Sales Agent’s assigned email address, SME’s or any affiliates’ brand, or name in conjunction with any other business, name, and/or consultancy.
   
   
   6. Any act of moral turpitude or act which could cause SME or its affiliates reputational harm by Sales Agent, including, but not limited to, (A) Sales Agent’s representatives performing sales related functions on behalf of SME’s affiliates while under the influence of alcoholic beverages or drugs, (B) Sales Agent’s principals arrested or convicted of any crime of theft, fraud, dishonesty, or any felony, (C) participating in any fraudulent, illegal, immoral, or dishonest act which could damage SME’s or its affiliates’ reputation; (D) violating the Marketing and Brand Use Policy, (E) disciplinary investigation or action against Sales Agent by a state agency or Sales Agent is prevented from operating business in any jurisdiction; (F) misappropriation of customer payments/funds, (G) failing to repay any indebtedness owed to SME, or comply with any other obligation owed to SME under this Agreement; or (H) making disparaging remarks concerning SME or SME’s affiliates, owners, employees, affiliates, the Products, or other solutions.
   
   
   7. Any act that disrupts, interferes, or adversely impacts SME or its affiliates’ relationship with any association, client, technology partner, or other


6. Notwithstanding the foregoing, SME shall pay Sales Agent all commissions earned by Sales Agent on New Orders and Reorders on net checks (moneys) received by SME’s affiliates from new or existing clients as a result of SME’s direct sales efforts with such clients up to the date of termination of this Agreement. Sales Agent acknowledges and agrees it is not entitled to any payment or commission on New Orders or Reorders, or any other payment, where the client payment has not been received by SME’s affiliates prior to the termination of this Agreement.

 

15.   DISPUTE RESOLUTION & CHOICE OF LAW.

This Agreement shall be construed in accordance with the substantive laws of the State of Texas. SME and Sales Agent agree that all claims, controversies or disputes that relate to this Agreement, that Sales Agent may have against SME or SME’s affiliates, or that SME may have against Sales Agent, are to be settled and handled by binding arbitration held in the state where Sales Agent resides or in another location mutually agreeable to by the Parties. The arbitration shall be conducted by a mutually acceptable arbitrator licensed to practice law and experienced in commercial dispute resolution. The Federal Arbitration Act (FAA) will govern all procedural rules, including the procedure for compelling arbitration and issues regarding the enforceability of the arbitration clause, but the arbitrator will apply Texas law in deciding the substance of the underlying dispute. The arbitration shall be conducted on a confidential basis and pursuant to the rules agreed to by the Parties or, if the Parties cannot otherwise agree, the American Arbitration Association Commercial Arbitration Rules. The arbitrator’s decision shall be final and legally binding and judgment may be entered thereon. Each party shall be responsible for its pro rata share of the arbitration fees or pursuant to an agreement between the Parties. The Parties agree that all questions of arbitrability shall be decided by the arbitrator and that any award in such arbitration shall not have non-mutual collateral estoppel effect.

 

16.   CLASS ACTION WAIVER. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING BETWEEN THE PARTIES (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE), INCLUDING ANY COUNTERCLAIM, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. SALES AGENT ALSO HEREBY WAIVES ANY RIGHT TO COMMENCE OR PARTICIPATE IN A CLASS ACTION OR COLLECTIVE ACTION, EITHER AS A CLASS REPRESENTATIVE OR MEMBER OF ANY CLASS ACTION OR COLLECTIVE ACTION, IN A CASE IN WHICH CLAIMS ARE ASSERTED AGAINST SME OR ITS AFFILIATES WHICH RELATE IN ANY WAY TO THIS AGREEMENT OR ANY BUSINESS RELATIONSHIP BETWEEN SALES AGENT AND SME AND ANY SME AFFILATE. THIS WAIVER INCLUDES ANY CLASS ACTION OR COLLECTIVE ACTION THAT MAY BE AVAILABLE THROUGH ANY ARBITRATION PROCEEDING OR OTHER DISPUTE RESOLUTION PROCESS. EACH PARTY (I) MAKES THIS WAIVER VOLUNTARILY AND (II) ACKNOWLEDGES THAT SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 16.

 

17.   ENTIRE UNDERSTANDING.

1. This Agreement supersedes all previous Agreements and any unwritten understandings or written agreements between the Parties and contains the complete and entire understanding between the Parties. Any representation, promise or agreement, written or oral, not embodied herein, shall not be of any force or effect between the Parties. Prior to signing, each party had the opportunity to have counsel review this Agreement.


2. Should any part of this Agreement be declared invalid, such invalidity shall not affect the validity of any remaining portion hereof, and it is the intention of the Parties hereto that they would have executed the remaining portion of this Agreement without including therein any such part, parts or portion which may, for any reason be hereafter declared To the extent that any section of this Agreement is deemed overly broad or unenforceable, the Parties agree the overbroad section shall be modified and enforced by the arbitrator to the maximum extent allowable by applicable law.

 

18.   INDEMNIFICATION, LIMITATION OF LIABILITY, AND ATTORNEYS’ FEES.

1. Sales Agent will indemnify, defend and hold SME and its affiliates and SME’s and its affiliates’ officers, directors, employees, representatives, and agents harmless from any and all judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities (direct or indirect, contingent, known and unknown), taxes, losses, expenses, and fees, including court costs and reasonable attorneys’, accountants’ and experts’ fees and expenses (collectively, “Damages”), arising in connection with any demand, subpoena, claim, lawsuit, proceeding, investigation, or other action (collectively, “Claims”, and each a “Claim”) related to (i) the operation of Sales Agent’s business or (ii) any Claim by a third party based, in whole or in part, on Sales Agent’s negligent act of selling, adding value to, or marketing the Services; and/or (iii) Sales Agent’s breach of its representations, warranties or obligations under this Agreement, including Sales Agent’s representation that Sales Agent is an independent contractor and will not allege to be an employee; and (iv) any claim asserted by any principal, independent contractor, employee or representative of Sales Agent. The activities of any of Sale Agent’s employees, agents or representatives will be considered activities of Sales Agent for purposes of this Sales Agent shall be 100% responsible for the cost of defense of any such Claim and SME shall control the defense of such Claim with counsel from Sessions Israel & Shartle, LLP, and/or such other counsel chosen by SME in which SME provides notice of such other counsel to Sales Agent. Sales Agent shall be 100% responsible for the cost of defense of any such Claim and Sales Agent, through its counsel, which has been consented to or approved by SME in advance (and such consent may be withheld in SME’s discretion) shall control the defense of such Claim. Sales Agent shall not enter into any settlement, compromise or agree to any Damages relating to any Claim without SME’s prior written consent. Sales Agent shall pay all Damages awarded against Sales Agent and/or SME’s Affiliate in connection any Claim or expenses reasonably incurred by SME or SME’s Affiliate in connection with the defense of any Claim. The indemnification provisions of this Section shall survive the termination or expiration of this Agreement. Notwithstanding the foregoing, Sales Agent shall not have to indemnify SME or its affiliates to the extent that a client of SME’s affiliate seeks indemnification in connection with the services provided by SME’s affiliate relating to consumer protection claims (e.g., a FDCPA claim by a consumer against SME’s affiliate’s client or claim that SME’s affiliate did not comply with law in providing the services to its client).


2. Willful misconduct excepted, neither party shall be liable to the other party for any loss of commissions, lost profits, punitive damages, or loss of business due to mistakes, omissions, interruptions, delays, errors, defects or otherwise occurring in the course of fulfilling the terms of this Agreement or other claims relating to this Agreement. Notwithstanding any other term in this Agreement, to the maximum extent permissible by law, SME’S LIABILITY RELATING TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE RELATIONSHIP BETWEEN THE PARTIES, OR THE PERFORMANCE OF OBLIGATIONS UNDER THIS AGREEMENT, SHALL BE LIMITED TO THE AMOUNT PAID BY SME TO SALES AGENT IN THE 6 MONTHS PRIOR TO THE CLAIM WHICH GAVE RISE TOThe limitation of liability of this Section shall survive the termination or expiration of this Agreement. Any dispute about whether Sales Agent has earned a commission under this Agreement shall be determined by SME, which has the right and discretion to determine when moneys are actually received by SME and will be credited to Sales Agent


3. If it becomes necessary for SME or Sales Agent to institute any action at law or in equity to secure or to protect rights under this Agreement, the prevailing party shall be entitled to recover, in any judgment entered therein, reasonable attorney fees as allowed by the court or arbitrator, together with such court costs, fees, and any other Damages as provided by law. The Parties agree that the terms set forth in this Sub-Section 18(c) are not applicable to Section 10 herein and the terms contained in Section 10, including the attorneys’ fee provision, specific to the covenants contained therein. The terms of this Section shall survive termination or expiration of this Agreement.

 

19.    ASSIGNMENT & SUBCONTRACTING.

Sales Agent will not assign, subcontract, or delegate any of its obligations under this Agreement without SME’s prior written approval. Sales Agent also may not complete a change of control (which shall include a direct or indirect transfer of all or substantially all of the stock, interest, or assets to a third party, a merger, reorganization or any other such transaction) without SME’s prior written consent, which may be withheld at SME’s reasonable determination (i.e., Sales Agent attempting to sell to a competitor of SME or its affiliates). Notwithstanding the foregoing, Sales Agent may undergo a sale or merger with an existing Sales Agent of SME so long as the Sales Agents provide notice to SME of such transaction. Additionally, Sales Agent may not retain the use of a subcontractor without SME’s approval. Sales Agent’s use of any subcontractor for a particular service will not relieve Sales Agent of its responsibility for the performance of its obligations under this Agreement, including, but not limited to, representations and warranties, indemnification, data protection and security, and confidentiality obligations. Sales Agent will remain solely responsible for the performance or non-performance of all agreements, covenants and obligations of Sales Agent hereunder, whether the Agreement contemplates performance by Sales Agent or any Sales Agent delegates. Sales Agent shall require any subcontractors to agree to be bound by provisions substantially the same as those included in this Agreement. Sales Agent is solely responsible for all payments to, and claims by, agents or employees of Sales Agent, including Sales Agent’s subcontractors and Sales Agent will ensure that Sales Agent’s employees and agents, including Sales Agent’s subcontractors comply with this Agreement. In addition, Sales Agent must perform appropriate due diligence on all subcontractors, including but not limited to ensuring that all requirements of this Agreement are met by such subcontractors. Notwithstanding any other term herein, SME may freely assign, delegate, or otherwise transfer this Agreement, any of its rights under it, or any interest relating to this Agreement, or purport to do any of these things, without Sales Agent prior consent (written or otherwise). In the event that such transaction by SME occurs, SME shall provide notice to the Sales Agent after such transaction takes place.

 

20.   EXCLUSIVE REMEDY.

1. The indemnification rights set forth in Section 18 are and shall be the sole and exclusive remedies of the Sales Agent and SME with respect to this Agreement regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, and the Parties hereto acknowledge. Notwithstanding anything in this Agreement to the contrary, nothing herein, including this Section 20(a), is intended to or shall prevent or limit any claim against any party to this Agreement for such party’s fraud.


2. The provisions of Sections 15 and16 were specifically bargained for and reflected in the commissions that Sales Agent may earn in connection with the transactions contemplated

 

21.    NOTICE.

All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day (i.e., not a weekend or national holiday) if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail (return receipt requested, postage prepaid). Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section):

 

Sales Agent:                                     

 

Email:                                     

 

SME Sales Network, LLC: 4099 McEwen Road

Suite 700

Farmers Branch, TX 75244 Email: legalcontracts@tsico.com

 

 

22.   REPRESENTATION.

Each party represents and warrants to the other party that (a) such party has the full right and corporate or other power and authority to enter into this Agreement, and to perform their obligations hereunder, (b) the execution, delivery and performance of this Agreement does not and shall not conflict with, or result in the breach of or violation of, any other agreement, instrument, order, judgment or decree to which such party or by which such party is bound, and (c) upon execution and delivery of this Agreement, this Agreement shall be a valid and binding obligation of such party, enforceable in accordance with its terms.

 

23.    COUNTERPARTS AND ELECTRONIC SIGNATURES.

This Agreement may be executed in one or more counterparts, which may be exchanged by electronic transmission (including email), each of which will be deemed an original, but all of which together constitute one, and the same instrument. This Agreement may also be executed by electronic signature, which includes an electronic symbol, or process attached to an electronic document executed or adopted by a person with the intent to sign the electronic document, and shall have the same legal effect as a hand-written signature.

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date first written above by their respective officers thereunto duly authorized.

 

 

Sales Agent:                                              SME: SME Sales Network, LLC

 

 

By:                                                                   By:                                                              

 

Name:                                                             Name:                                                               

 

Title:                                                                Title:                                                               

 

Date:                                                                Date:                                                                

 

Exhibit No. 1

 

Commission & Pricing Guide

 

The terms and conditions provided in this Commission & Pricing Guide are governed by the Sales Agent Agreement entered between SME Sales Network, LLC (“SME”) and the Sales Agent. Capitalized terms not otherwise defined herein shall have the same meaning as provided in the Sales Agent Agreement.

 

1.       COMMISSION ON NEW ORDERS.

SME agrees to pay Sales Agent a sales commission on New Orders (as defined in the Sales Agent Agreement between the Sales Agent and SME) according to the Phase I Sales Agent Commission Chart below of all net payments (moneys) actually received by SME’s applicable affiliate, excluding the CPO Fee and taxes (if applicable). Per the terms of Section 4 of the Sales Agent Agreement, any New Order sold by the Sales Agent which does not comply with Section III (Pricing Guide) herein is subject to a reduced commission, as determined by SME, unless otherwise agreed to by SME in consultation with the applicable SME affiliate. To the extent Sales Agent sells a Product to an entity which previously was a customer of SME’s affiliates, but such entity has not generated any revenue from any SME’s affiliate in the 24 months prior to the date of the purchase order, then such sale by Sales Agent shall be commissioned as a “New Order” . Notwithstanding the foregoing, while Sales Agent shall be entitled to the higher New Order commission rate (as opposed to the Reorder commission rate), such sales efforts by Sales Agent shall not be considered a “New Order” pursuant to Section 4 of the Sales Agent Agreement. Additionally, on any New Order that is a Pay as Used order, SME will pay new order commission on the first 12 months after receipt of the New Order and reorder commission on any payments received thereafter.

 

2.       COMMISSION ON REORDERS.

SME agrees to pay Sales Agent a sales commission on re-orders according to the schedule below of all such reorder net payments (moneys) actually received by SME, excluding the CPO Fee and taxes (if applicable). Per the terms of Section 5 of the Sales Agent Agreement, any reorder sold by Sales Agent which does not comply with Section III herein is subject to a reduced commission.

 

3.       REFERRAL FEE.

SME agrees to pay Sales Agent a referral fee (“Referral Fee”) in conjunction with referring a prospective client to SME which thereafter enters into an agreement to purchase services outside the scope of Services sold by Sales Agent under this Agreement. The Referral Fee will be negotiated by and between SME and Sales Agent before SME’s affiliate enters into an agreement with the prospective new client and SME shall pay such Referral Fee after SME’s affiliate receives a payment(s) from the new client pursuant to the agreed upon terms relating to the Referral Fee (e.g., whether the Referral Fee is a one-time payment, or a payment made over time based upon revenue generated for SME’s affiliate).

 

4.       GENERATIONAL OVERIDES, TRAINING BONSU AND SPONSOR BONUS.

Generational Overrides (as set forth below) are subject to qualifications that may change from time to time at SME’s sole discretion. The Training Bonus is paid only to qualified sponsoring agents on revenue generated by Training Agents. The Sponsor Bonus is paid only on sponsored agents that are equal to or lower in rank to the Sponsor.

 

5.       COMMISSION REDUCTION, INCREASES IN CPO FEES, AND CHARGEBACKS.

SME may reduce commissions or increase the CPO fee where a sale by SME’s affiliate varies from SME’s affiliate’s standard contractual terms and the following related matters which impact the profitability of SME’s affiliates’ client relationship: (i) a commission may be reduced (or the CPO fee increased) where a sale causes SME’s affiliate to pay for technology support, or to customize interfaces for a client; (ii) involves sales relating to an association or partnership that SME or SME’s affiliate(s) maintain; (iii) involves a sale by SME’s affiliate with extensive edits to the client contract, or (iv) sales providing for non-standard payment terms. It also is agreed by Sales Agent that SME may, at its sole discretion, charge back the Sales Agent for commissions paid out to Sales Agent if a client, for which Sales Agent received a commission (regardless whether such commission is for Phase I – Fixed Fee Letter Services or Phase II – Contingency Fee Collections), fails to timely tender (i.e., 120 days) payment or amounts owed to SME’s affiliate, or when SME’s affiliate seeks a refund from SME for a broken client relationship.

 

 

SECTION I – Sales Agent Commissions Rates and Generational

 

Overrides TSI Phase I - Fixed Fee Letter Service Placements (Accelerator®, Profit Recovery®, and Profit Recovery Plus)

 

 

Commission Rates
Field Title	Level	Phase I Products (New)	Phase I Products (Reorder)
Training Agent	1	25.0%	20.0%
Sales Agent	10	30.0%	20.0%
Senior Sales Agent	15	32.0%	25.0%
District Sales Agent	17	35.0%	30.0%
Executive Sales Agent	20	40.0%	30.0%
Total Direct Commission		40.0%	30.0%
Generational Overrides (Sales Agents, Sr. Sales Agents, District Sales Agents, and Executive Sales Agents)
1st Generation	25	4.0%	4.0%
2nd Generation	30	3.0%	3.0%
3rd Generation	35	2.0%	2.0%
Total Generational Overrides		9.00%	9.00%
Training Bonus	40	10.0%	-
Sponsor Bonus	45	5.0%	5.0%
Total Mentoring Bonuses		15.0%	5.0%

 

Section II – Sales Agent Commissions

 

TSI Phase II – Contingency Fee Collection Services

 

(Transworld Collections)

 

 

1.       COMMISSION SCHEDULE ON CONTINGENCY PLACEMENTS.

SME agrees to pay the Sales Agent a commission on accounts that have been placed with TSI and collected by TSI, which are subject to a binding contract between a client solicited by Sales Agent and TSI, and such services are performed by TSI on a contingency commission compensation, provided the meet the following requirements:

1. Accounts that have been placed with SME on a percentage contingency fee basis as the result of a transfer from Phase I – Fixed Fee Services;


2. Accounts that have been placed with SME on a percentage contingency fee basis as a direct placement.

The Sales Agent’s commission is computed on Accounts that qualify based on the applicable SME affiliate’s net earned contingency fee when the debtor tenders payment to either SME’s affiliate or SME’s affiliate’s client as follows:




Phase II – Commission Rate & Generational Override Schedule for Contingency Fee Client Account Placements

Sales Agent Commission Rates
Sales Agent Title	Level	>/= 50%	40 - 49%	26 - 39%	20 - 25%	<20%
Training Agent	1	4.0%	3.0%	2.0%	0.5%	-
Sales Agent	10	5.0%	4.0%	3.0%	1.0%	-
Sr. Sales Agent	15	6.0%	5.0%	3.5%	1.5%	-
District Sales Agent	17	8.0%	6.0%	4.0%	2.0%	-
Executive Sales Agent	20	8.0%	6.0%	4.0%	2.0%	-
Generational Overrides (Sales Agents, Sr. Sales Agents, District Sales Agents, and Executive Sales Agents)
1st Generation	25	Up to 4.0%	Up to 3.0%	Up to 2.0%	Up to 1.5%	-
2nd Generation	30	Up to 3.0%	Up to 2.0%	Up to 1.0%	Up to 1.0%	-
3rd Generation	35	Up to 2.0%	Up to 1.0%	Up to 0.5%	Up to 0.5%	-



3. Generational Overrides are calculated as the difference between the Commission Rate of the Sales Agent that recruited or located the selling Sales Agent, as compared to the Commission Rate of the selling Sales Agent according to the Commission Rate schedule


4. Sales Agent understands and agrees no commissions will be paid on any sales to existing or new customers of SME’s affiliates where the contingency collection rate earned by SME’s affiliate is less than twenty percent (20%) unless the Sales Agent received prior written approval from SME, and in which case, the commission payable to the Sales Agent will be 0%.


5. It is further agreed and understood that if an Account is not placed with SME’s affiliate in one of the above listed ways, no commission will be paid to Sales Agent.

 

2.       CERTAIN NON-COMMISSIONABLE ACCOUNTS.

It is agreed and understood that on the following accounts that are placed with TSI’s Phase II – Contingency Collections, Sales Agent shall not earn, and SME shall not be obligated to pay commissions on the following type of Accounts:

1. FORWARDED ACCOUNTS: Any Accounts that are forwarded to an outside agency for


2. FINDERS FEE PAYMENTS: A setup fee charged for Accounts collected prior to


3. SERVICE FEE PAYMENTS: A fee that is charged for special collection efforts, i.e. repossession of client’s goods or merchandise or when the client requests a premature “cancellation and return” of the account because of extenuating circumstances.

 

3.       COMMISSION CHARGE-BACKS.

It is agreed and understood that if a SME Phase II – Contingency Collections account is previously paid and must be reversed for any reason or written off as a bad debt, the sales commission paid to the Sales Agent will be reversed and deducted from the next regularly scheduled SME commission payment; this will be a debt the Sales Agent owes to SME until repaid.

 

Section III - PRICING GUIDE FOR SME AFFILIATED PRODUCTS

Transworld Systems Inc. (TSI)

Phase I - Fixed Fee Services (Accelerator® & Profit Recovery®)

The terms and conditions provided in this Guide are governed by the Sales Agent Agreement entered between the Parties. Capitalized terms not otherwise defined herein shall have the same meaning as provided in the Sales Agent Agreement.

 

1. Fixed Fee Collection Services (Accelerator® & Profit Recovery®) – Installment Pricing. The below pricing is effective for TSI clients who agree to an installment payment structure for accounts (“Accounts”) placed for Fixed Fee Services.

Number of Accounts	Suggested Retail Price Per Account	Total Package Cost	CPO Fee**	Maximum Monthly Installments
Cash Flow Starter *		$ 399.00	$ 2.30	Must be Paid in Full
25	$ 27.00	675.00	2.65	3
50	16.00	800.00	2.25	3
100	14.25	1,425.00	2.40	5
250	13.25	3,312.50	2.05	7
500	11.75	5,875.00	1.90	10
1,000	10.75	10,750.00	1.70	10
2,500	10.25	25,625.00	1.70	10
5,000	9.40	47,000.00	1.70	10
10,000	8.35	83,500.00	1.70	10
15,000	7.75	116,250.00	1.70	12
25,000	7.25	181,250.00	1.70	12
50,000	6.75	337,500.00	1.75	24
75,000	6.50	487,500.00	1.75	24
100,000	6.25	625,000.00	1.75	24
150,000	5.95	892,500.00	1.80	24
200,000+	5.60	1,120,000.00	1.80	24

 

* Cash Flow Starter is valid for up to 12 Accounts and must be paid in full at the time of the order.

**CPO Fee is higher for various marketing alliances, partnerships, technology solutions, enhanced data security requirements, non-standard contracts, non-standard terms which increase service requirements or risk, and non-standard pricing arrangements (e.g., PAU, Profit Recovery Plus, or other fee arrangements).

 

2. Preferred Pricing
   Certain clients may be eligible for special pricing as members of a trade association, marketing alliance, or by leveraging on of TSI’s partner interfaces. TSI shall define the eligibility criteria and preferred price list(s), which may be modified from time to time.

 

3. Pay-as-Used Pricing.
   Certain clients may be eligible for a Pay-as-Used (“PAU”) agreement, in which the client pays monthly based on actual accounts submitted for Phase I – Fixed Fee Services. TSI shall define the eligibility criteria and pricing for PAU agreements, which may be modified from time to time.

 

4. Profit Recovery Plus

   The below pricing is effective for TSI clients who agree to an installment payment structure for accounts placed for Profit Recovery Plus. “Profit Recovery Plus” is TSI’s full service third party collection solution, whereby in addition to sending third party demands via TSI’s Fixed Fee Profit Recovery service, TSI also handles inbound communications and processes debtor payments on behalf of the client. The minimum order for Profit Recovery Plus is 250 accounts.

Number of Accounts	Suggested Retail Price Per Account	Total Package Cost	CPO Fee**
250	$ 16.75	$ 4,187.50	$ 3.85
500	15.25	7,625.00	3.70
1,000	14.25	14,250.00	3.50
2,500	13.75	34,375.00	3.50
5,000	12.90	64,500.00	3.50
10,000	10.85	108,500.00	3.50
15,000	10.25	153,750.00	3.50
25,000	9.75	243,750.00	3.50
50,000	9.25	462,500.00	3.55
75,000	9.00	675,000.00	3.55
100,000	8.75	875,000.00	3.60
150,000	8.45	1,267,500.00	3.60
200,000+	8.10	1,620,000.00	3.60



5. Paid in Full

   The below paid in full discount structure is to be used for clients that pay in full at the time of order. The discounted price will only be applied to client agreements that are accompanied by a check, ACH, or credit card authorization for full payment at the time of processing.




Paid in Full Discount Per Account
25 - 99 Accounts	$ 1.00
100 - 499 Accounts	$ 0.75
500 - 149,999 Accounts	$ 0.50
150,000 Accounts	$ 0.45
200,000+ Accounts	$0.35

6. Data Entry

   Clients who use our data entry services will be charged an additional $1.00 per account purchased and/or submitted to data entry. The $1.00 fee will be in addition to TSI’s standard pricing. Additionally, the CPO Fee to the rep will be increased by $1.00 for each account purchased and/or submitted to data entry.