SME Sales Network, LLC .

Trusted Advisor Information

Trusted Advisor Referral Agreement 

 

This Trusted Advisor Referral Agreement (“Agreement”) is entered into as of by and between a with the principal address of  (“Referrer”) and SME Sales Network, LLC . (“SME”).  Referrer and SME are referred to collectively herein as the (“Parties”).  The Referrer has identified potential clients for SME (“Referrals”), SME does not have an existing relationship with such Referrals, and Referrer would like to refer such Referrals to SME.  In consideration of the mutual covenants and benefits described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the following terms as of the Effective Date.

 

1. Referrals.
   1. During the Term, Referrer will refer Referrals to SME to offer its Services (as defined in Schedule A). The Referrer will use its professional judgment as to the appropriateness of a particular introduction (recognizing that some Referrals may not be appropriate at a particular time or at any time).
      
      
   2. SME will meet or conference and negotiate independently with a Referral. The Referrer may not object to any decisions made by SME regarding the terms or conditions of a particular relationship entered into after an introduction. Further, SME will have sole discretion to enter into or not enter into an agreement or other arrangement with a Referral.
      
      
   3. Referrer represents and warrants:
      1. Referrer has a prior or existing relationship with Referral;

      2. Referrer is familiar with Referral’s current financial records;

          

      3. Referrer introduced SME and SME’s Services to Referral;

          

      4. Referral is interested in learning more about SME; and

          

      5. Referrer reasonably believes Referral would benefit from SME’s Services.
         
         

2. Referral Fee.  During the Term, Company will pay Referrer a commission (“Referral Fee”) on “Services” (as defined in Schedule A attached hereto and incorporated herein) generated as a result of contractual relationships entered into between SME and Referrals referred by Referrer in accordance with Schedule A. The Referral Fee shall be considered complete consideration for all Referrals made during the Term. Referrer shall be responsible for any and all income and other taxes applicable to it in connection with its receipt of the Referral Fee.   SME will not be responsible for any expenses of the Referrer in the course of the performance of its obligations hereunder. SME shall notify Referrer in writing within the first 10 days of this Agreement if SME maintains an existing relationship with Referral. In the event SME maintains an existing relationship with Referral, Referrer will not be eligible for a Referral Fee.
   
   
3. Agreement. By signing this Agreement, Referrer acknowledges, understands, accepts, agrees the Referral Fee shall be full and complete compensation in connection with Referrer sourcing Referral for SME.
   
   
4. Representations and Warranties.
   1. Each Party represents and warrants to the other Party that (i) such Party has full right or corporate or other power and authority to enter into this Agreement, (ii) 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 is bound; (iii) each Party has had the opportunity to have their respective counsel review this Agreement; and (iv) 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, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors’ rights generally and by equitable limitations on the availability of specific remedies.
      
      
   2. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE MARKETING SERVICES PROVIDED TO THE OTHER PARTY AND OTHER OBLIGATIONS UNDERTAKEN HEREUNDER, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF REFERRER HAS BEEN INFORMED OF SUCH PURPOSE), OR WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. FURTHER, SME DOES NOT MAKE ANY WARRANTY THAT THE QUALITY OF THE SERVICES PURCHASED BY A REFERRAL WILL MEET SUCH REFERRAL’S EXPECTATIONS.
      
5. Non-Waiver. It is expressly understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties hereto shall be used to modify, interpret, supplement or alter in any manner the express terms of this Agreement or any part hereof. No delay or failure by either Party to exercise or enforce at any time any right or provision of the Agreement shall be considered a waiver thereof or of such Party’s right thereafter to exercise or enforce each and every right and provision of the Agreement.
   
   
6. Severability. If any provision of this Agreement shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of the remaining provisions are not affected thereby.
   
   

7. Covenant of Good Faith.  Each Party, in its respective dealings with the other Party under or in connection with this Agreement, shall act in good faith.

    

8. Term and Termination.

   1. The term (the “Initial Term”) of this Agreement shall commence on the Effective Date and shall continue for a period of twelve (12) months. Prior to the end of the Initial Term and each Renewal Term (as hereafter defined), this Agreement will automatically extend for an additional twelve (12) month period (each, a “Renewal Term”) unless either party sends the other party a notice of non-renewal at least thirty (30) days prior to the expiration of the Term (as hereafter defined). The Initial Term and any Renewal Terms shall be collectively referred to herein as the (“Term”). This Agreement may be terminated by either party upon thirty (30) days prior written notice without cause, fee, or penalty. SME may also terminate this agreement for cause immediately without fee or penalty at any time if Referrer breaches the terms of this Agreement (i.e., Referrer breaches its representations and warranties herein).
       

   2. The following provisions shall survive the Termination Date: Sections 4 (Representations and Warranties), 9 (Limitation of Liability), 10 (Confidentiality), and 11 (Additional Terms).
      
      

9. Limitation of Liability.

   1. NEITHER PARTY HERETO WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. SME’S LIABILITY TO REFERRER UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID TO REFERRER OR DUE TO REFERRER PRIOR TO EVENT THAT GAVE RISE TO THE REFERER’S CLAIM.
       

       

   2. A party’s failure to bring a claim against the other party within one (1) year after the date on which the claiming party becomes aware of the existence of a potential claim, constitutes a waiver of such claim.
      
      

10. Confidentiality.

    1. Referrer and SME, and either party’s affiliates, and their or their affiliates’ officers, directors, trustees, employees, advisers, agents and other personnel, shall use at least the same care and discretion to prevent disclosure of Confidential Information (as hereinafter defined) of the other party as it uses with similar Confidential Information of its own that it does not desire to disclose, but in no event with less than a reasonable degree of care. Either party may use Confidential Information of the other party in order to carry out its obligations hereunder, but in doing so will only allow dissemination of Confidential Information internally on a need-to-know basis (provided such persons are first informed of the confidential nature of such information and directed to use or disclose it only as permitted herein). If either party must disclose any Confidential Information of the other party as required by law, then that party may make such disclosure after providing the other party with reasonable notice so that the other party may seek protective relief.
        

        

    2. Nothing herein shall be construed as granting either party any property rights, by license or otherwise, to any Confidential Information of the other party, or to any invention or any patent, copyright, trademark, or other intellectual property right of the other party except as specifically provided for in this Agreement. Neither party shall make, have made, use or sell any product or service or other item using, incorporating or derived from any of the other party’s Confidential Information except as provided in this Agreement.
        

        

    3. The obligations under this Section 10 will survive the Termination Date, but Confidential Information that is not a trade secret will cease to be protected hereunder two (2) years after the Termination Date. On or before the Termination Date, each party will return to the other party all of that other party’s Confidential Information embodied in tangible form, and will destroy, unless otherwise agreed, all such other Confidential Information in that party’s possession.
        

        

    4. For purposes of this Section 10, (“Confidential Information”) means (1) business or technical information or data (oral, written, electronic or otherwise), including, without limitation, a trade secret (as defined under applicable law), of or about a party provided or made available by such party to the other party that is competitively or commercially valuable to that party and not generally known or readily available by legal means to others, and (2) information regarding the existence, content or status of the business relationship described herein. Confidential Information shall not include information which (i) at the time of disclosure, was published, known publicly, or otherwise in the public domain, (ii) after disclosure, is published, becomes known publicly, or otherwise becomes part of the public domain through no fault of the party receiving the Confidential Information, (iii) prior to the time of disclosure, is known by that receiving party or, after disclosure, is independently developed by that receiving party as evidenced by its written records, (iv) after disclosure, is made available to that receiving party in good faith by a third party who is under no obligation of confidentiality or secrecy to the party disclosing the Confidential Information, or (v) information agreed to be disclosed in accordance with Section 10 hereof.
       
       

11. Additional Terms.
    1. SME here under or otherwise for vacation pay, sick leave, retirement benefits, social security, worker's compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.  Referrer represents and warrants that it is in compliance with all federal, state, and local laws and regulations relating to Referrer’s business. Referrer agrees to comply with completing and maintaining Employment Eligibility Verification Form I-9. I Referrer agrees to defend and indemnify SME for breach of any provision of this Section 11(a) of the Agreement. 

        

    2. This Agreement shall be construed, governed and enforced in accordance with the laws of the State of Illinois.  Each Party to this Agreement consents and submits to the exclusive jurisdiction and venue of the state and federal courts located in Cook County, Illinois.  THE PARTIES WAIVE TRIAL BY JURY AND AGREE THAT ANY ACTION TO ENFORCE THIS AGREEMENT SHALL BE SUBMITTED TO BINDING ARBITRATION.
        

        

    3. The Parties agree such disputed matter shall be submitted to binding arbitration in accordance with the Rules of the American Arbitration Association, at a location in Cook County, Chicago, Illinois, and judgment upon the award rendered by the arbitrator may be entered in a court in Illinois.  A Party may submit a matter to arbitration by: (a) giving written notice to the other Party of the intent to submit such controversy or Claim to arbitration of the matter; and (b) if the Parties have not reached a mutually agreed solution within ten days after such notice, a Party may demand by written notice that the controversy or Claim in question be arbitrated in compliance with the AAA Rules. In the event of a dispute or disagreement between or among the Parties hereto either with respect to the interpretation of any provision of this Agreement or with respect to the performance hereunder by SME or Client, within 14 days after notice of such dispute or disagreement, each of the Parties will appoint a designated officer to meet for the purpose of resolving such dispute or negotiating an adjustment to such provision.  In no event, unless other terms are agreed to in writing by the Parties during the pendency of an ongoing negotiation to resolve a dispute, shall such negotiations continue for more than 60 days after the appointment of the designated officers. This Section shall survive termination of this Agreement.
        

        

    4. Referrer shall not assign its rights under this Agreement, or delegate the performance of any of duties hereunder, without the prior written consent of SME. SME may assign any rights under this Agreement, or delegate the performance of any of duties hereunder, at its sole discretion.;
        

        

    5. Notices, demands, and other communications required or desired to be given hereunder shall be in writing and delivered to a party by either hand delivery, deposited via overnight delivery with return receipt, or by electronic transmission (including email) with a copy sent by United States First Class Mail. If such notice or demand is served personally or by electronic transmission with a copy sent by United States Mail, notice shall be deemed constructively made at the time of such personal service or within 24 hours of the date and time the email was sent. If such notice, demand or other communication is given only by mail, such notice shall be conclusively deemed given five days after deposit thereof in the United States mail addressed to the party to whom such notice, demand or other communication is to be given as follows:
       
       

       To Company:

        

       SME Sales Network, LLC.

       Attention:  VP, Corporate Legal

       Two Conway Park

       150 N. Field Drive, Suite 200

       Lake Forest, IL 60045

       legalcontracts@SMEco.com
       
       

    6. No amendment, change, or modification of this Agreement or any exhibit shall be valid unless in writing signed by the Parties.
       
       
12. Electronic Signatures. This Agreement may be executed in one or more counterparts, and counterparts 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 or logically associated with an electronic document provided, executed, or adopted by a person with the intent to sign the electronic document. For clarity, an electronic signature on this document shall have the same legal effect as an ink or hand-written signature.

TRUSTED ADVISOR REFERRAL AGREEMENT

Schedule A

1. SME agrees to pay a Referral Fee for revenue generated from by a Referral entering a contract with SME for one of the following SME collection services: Accelerator®, Profit Recovery®, Profit Recovery Plus, or third-party contingency collections (collectively referred to as “Services”).
   
   
2. The Parties hereby agree the Referrer shall be eligible for a Referral Fee per the terms of this Schedule A: (a) for so long as this Agreement remains effective and has not otherwise terminated or expired; and (b) if SME does not have an existing relationship with such Referral.
   
   
3. New Order Referral Fee.  After a fully signed contract for Services is entered between SME and a Referral, the Referrer shall receive a ten percent (10%) fee (“New Order Referral Fee”) of SME’s Net Revenue (as defined below) in connection with delivering the following letter-related Services: (a) Accelerator®; (b) Profit Recovery®; and (c) Profit Recovery Plus (collectively, “SME Letter Services”). Referrer shall be eligible for a New Order Referral Fee during the 12-month period after Referral’s first placement of accounts with SME
   
    “Net Revenue” shall mean shall be equal to the amounts paid by a Referral and received by SME, less any amounts which are required to be refunded by or to Referral (i.e., uncollected account receivables due from a Referral, NSF fees, chargebacks, offsets, etc.).
   
   
4. Re-Order Referral Fee. A Referral’s account placements for SME’s Letter Services received after the initial 12-month period are “Referral Re-Orders”. Referrer shall be eligible for a five percent (5%) fee (“Re-Order Referral Fee”) of SME’s Net Revenue in connection with Referral Re-Orders during the 24 months after the initial 12-month period.   
   
   
5. Payment. The New Order Referral Fee and the Re-Order Referral Fee will be paid to the Referrer on a quarterly frequency, or as otherwise determined by SME.   

SME Sales Network, LLC.

Terms & Conditions

Welcome to the SME Sales Network, LLC (“SME”) website located at www.tsico.com (the “Site”), the following terms and conditions (the “Terms “) govern your use of the Site. By accessing, viewing, or using the content, material, or services available on or through this Site, you indicate that you have read and understand these Terms, and that you agree to them and intend to be legally bound by them. If you do not agree to these Terms, you are not granted permission to use this Site and must exit immediately.

This Site has been prepared solely for the purpose of providing information about SME, and the products and services offered by the company and its operating subsidiaries and affiliates. Any reports filed by TSI with the Securities and Exchange Commission, which may be accessed through this Site, speak only as of the respective dates on which they are filed and the contents of those reports can become out-of-date. Without limiting the generality of anything else, TSI makes no commitment, and disclaims any duty, to update this Site or any of the information obtained through this Site, and it shall not be responsible for any errors or omissions in the Site. TSI reserves the right to add, modify or delete any information on this Site at any time, with or without notice.

Copyright and Other Proprietary Information:

As between you and SME, SME owns or licenses all data, content, graphics, forms, artwork, images, photographs, functional components and any software concepts and documentation and other material on, in or made available through the Site (“Site Materials”), as well as the selection, coordination, arrangement, and organization and enhancement of the Site Materials. All Site Materials are protected pursuant to copyright, trademark, patent, and other applicable laws. You agree not to remove or alter any copyright notice or any other proprietary notice on any Site Materials. As between any user and TSI, all names, trademarks, service marks, certification marks, symbols, slogans, and or logos appearing on the website Site are proprietary to TSI or its affiliates, licensors, or suppliers. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law. Under no circumstances will you have any rights of any kind in or to the Site Materials, other than the right to use the Site Materials in accordance with these Terms. Permission is granted to download and print materials for personal, non-commercial purposes. You agree that you will not use the Site for: (a) any illegal or unauthorized purposes that violate any local, national, or international laws (including but not limited to import, export, copyright, and trademark laws); (b) modifying, copying, distributing, displaying, performing, reproducing, publishing, licensing, creating derivative works from, transferring, selling any of the Site Materials, unless otherwise authorized by these Terms or in a separate written agreement with TSI; (c) attempting to gain unauthorized access to TSI’s computer system or engaging in any activity that interferes with the performance of, or impairs the functionality of the Site or any services provided through the Site; (d) any resale or commercial use of the Site; (e) any downloading or copying of the Site Materials for any reason, or any use of data mining, robots or similar data gathering and extraction tools; (f) using the Site to access or collect any personally identifiable information, including any names, email addresses or other such information for any purpose, including, without limitation, commercial purposes; or (g) removing, circumventing, disabling, damaging or otherwise interfering in any way with any security-related features of the Site aimed at preventing or restricting the unauthorized use of the Site or any of the Site Materials. You may use the Site and the Site Materials only as consistent with these Terms. Any other use of the Site or Site Materials, including but not limited to the aforementioned unauthorized uses, without prior written permission of TSI is strictly prohibited. You acknowledge and agree that the unauthorized use of the Site or the Site Materials could cause irreparable harm to TSI and that, in the event of such unauthorized use, TSI shall be entitled to an injunction in addition to any other remedies available at law or in equity.

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Intellectual Property Complaint Procedures

If you believe that any content or postings on this Site violates your intellectual property or other rights, please notify TSI through TSI-Marketing@tsico.com with a comprehensive detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your email address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: “The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message.”

Internet Security

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Forward-looking Statements Disclosure:

Certain statements in documents that appear in or are obtained through this Site, including, without limitation, statements as to any company’s objective to grow through strategic acquisitions and internal growth, the ability to realize operating efficiencies in the integration of its acquisitions or as to management’s beliefs, expectations and opinions, are forward-looking statements that involve risks and uncertainties and are subject to change at any time. Certain factors, including without limitation, risks associated with growth and future acquisitions, fluctuations in quarterly operating results, and other risks detailed from time to time in any filings with the Securities and Exchange Commission, can cause actual results and developments to be materially different from those expressed or implied by such forward-looking statements.

Disclaimers; Disclaimers Regarding Other Servers and Web Sites:

This Site, the Site materials on and in and made available through this Site, and the services, information, and products offered by TSI, and its operating subsidiaries and affiliates in connection therewith are made available “as is” and “with all faults.” Use of this Site is entirely at your own risk.

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Privacy Statement:

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Changes in Terms and Termination:

TSI shall have the right at any time and without prior notice, at its sole discretion, to revise these Terms or to impose new terms and conditions with respect to access to or use of this Site. Such revisions and additions shall be effective immediately upon notice thereof, which may be given by any means, including but not limited to posting the revised or additional terms and conditions on this Site. You are responsible for reviewing this Site periodically for any modification to these Terms that may affect your rights or obligations hereunder. You agree that you shall be deemed to be apprised of and bound by any modification by TSI to these Terms. ANY ACCESS OR USE OF THIS SITE BY YOU AFTER NOTICE OF REVISIONS OR ADDITIONS TO THESE TERMS SHALL CONSTITUTE AND BE DEEMED TO BE YOUR AGREEMENT TO SUCH REVISIONS OR ADDITIONS. No modification to these Terms by any party other than TSI shall be valid or enforceable against TSI unless expressly agreed to in writing signed by a duly authorized officer of TSI. TSI may suspend or terminate your account and/or your ability to use the Site, or any services on the Site, for failure to comply with these Terms, for providing TSI with untrue or inaccurate information about yourself, for infringement upon TSI proprietary rights, or for any reason whatsoever or for no reason.

Acts Beyond Control:

TSI shall not be liable for any nonperformance or delay in performance caused by any act beyond its reasonable control, including but not limited to acts or omissions of third parties, unavailability of supplies, equipment failure, war, strikes, lock-outs, fire, flood, or any other Act of God, any law, regulation, ordinance, or other act or order of any court, government, or governmental agency, or delays, unavailability, errors, or other failures of the Internet or other data networks.

Governing Law and Jurisdiction:

These Terms, including, without limitation, the Privacy Notice, represent the entire agreement between you and TSI and its operating subsidiaries and affiliates with respect to the subject matter hereof, and supersede any and all prior and contemporaneous written and oral representations, understandings, and agreements, express and implied, and will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without reference to its conflict of law rules; provided, however, that the terms of any applicable law now or hereafter enacted that is based on, derived from, similar to, or connected with the uniform computer information transactions act drafted by the national conference of commissioners on uniform state laws shall not apply except to the extent that the law expressly prohibits alteration by these terms and conditions of the applicability of one or more sections of the law. By accessing, viewing, or using the works, content, or materials on this Site, you consent to the exclusive jurisdiction of the federal and state courts presiding in Philadelphia County, Pennsylvania, and agree to accept service of process by personal delivery or mail and hereby waive any and all jurisdictional and venue defenses otherwise available.

Miscellany:

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