AGENT AGREEMENT

THIS AGENT AGREEMENT (“Agreement”), is made and entered into between RocketCert, LLC, a Tennessee limited liability company (“Company”), and the person or entity (either, “Agent”) identified on and executing this Agreement through the click to accept process on the Company website, effective as of the date fully executed thereby (the “Effective Date”).

1. Appointment as Independent Sales Agent. Subject to the terms and conditions of this Agreement, Company hereby appoints Agent, and Agent hereby accepts such appointment, to serve as a non-exclusive independent sales agent of the Company to solicit orders for the products and services specified on Schedule A provided to the Agent which is incorporated into this Agreement by reference (“Services”), and for no other purpose whatsoever; provided, if so specified on the Schedule A. Company and Agent from time to time may agree on a new Schedule A that allows Agent to solicit orders for additional Services. Each such additional Schedule A is incorporated herein by reference in its entirety. 

2. Acceptance/Rejection of Orders for Services. Each order of Services solicited by Agent shall be deemed to be offers to purchase the Services on the terms set forth in the Company’s Terms and Conditions. Company reserves the right to reject any orders and to refuse to sell the Services to any entity or individual in its sole discretion.

3. Prices; Commissions.

(a) The price for Services is specified solely by Company on Company’s website (“Purchase Price”).

(b) Company shall pay Agent the amount specified on Schedule A for orders for Services solicited by Agent (“Commissions”), in accordance with this Section. Within thirty days of the end of each calendar month during the Term, Company shall pay to Agent, Commissions payable with respect to Services for which the Purchase Price was actually collected by Company during such calendar month for an order solicited by Agent. If the Purchase Price is refunded by Company for Services then the Agent’s Commission will be reduced accordingly.

(c) If Agent or Agent’s owners, shareholders, members, partners, employees, agents, or representatives (collectively “Benefiting Agent”) are entitled to a commission, directly or indirectly, under this Agreement and another agreement with the Company, or entitled to multiple commissions under this Agreement, then Company, in its sole discretion, shall choose only one such commission to which the Benefiting Agent is entitled.

(d) In Company’s sole discretion Company may pay Agent a Commission before Company has received the Purchase Price (“Unearned Commission”). Agent is not entitled to retain the Unearned Commission, in the event that (i) Company does not collect the Purchase Price with respect to an order solicited by Agent within 45 calendar days of the date the order was solicited, or (ii) the Purchase Price for the Service is refunded by Company. Company will either deduct the Unearned Commission from future Commissions or payments owed to Agent or require Agent to repay the Unearned Commission to Company.

4. Company’s Other Duties. As long as this Agreement remains in effect, Company agrees to: (a) use reasonable efforts to perform its obligations under this Agreement; and (b) provide reasonable sales support to Agent, including training of Agent on the proper sale and use of the Services.

5. Agent’s Other Duties. As long as this Agreement remains in effect, Agent agrees to: (a) use its best efforts to sell, market and promote Services and otherwise perform its obligations under this Agreement; (b) conduct its business in a businesslike, professional, and lawful manner, and in the best interests of Company; (c) comply with all Federal, State, international and local laws, rules and regulations applicable to the sale of Services, including without limit all import/export laws, rules and regulations; (d) inform Company of all material matters relating to the sale of Services, including any complaints or comments made relating to any of the Services; (e) not make any warranty or guaranty, orally or in writing, concerning any of the Services, which might be perceived by a customer as in any way binding Company, except for such warranties as are expressly authorized in writing by Company, nor make or provide any statement, representation or information concerning the Services in addition to or inconsistent with any written statement, representation or information provided to Agent by Company, including without limitation, the warranties, representations, disclaimers and other information contained in the Company’s Terms and Conditions; (f) not appoint any sub-agent, unless the agreement between the sub-agent and Agent is in writing and approved by Company in writing; (g) employ a trained and qualified sales staff to market the Services; (h) not engage in commercial bribery of any current or potential customer, client or account, or its agents or employees, whether the bribes be in the form of cash payments, gifts of goods or services, extra promotional considerations, price discounts, or otherwise; and (i) not provide any services similar to the Services or other services to be provided to customers by Company. 

6. Trade Marks and Trade Names. Agent acknowledges that Company is the exclusive owner or licensee of all right, title and interest in and to the trade names, trademarks, service marks, trade dress, collective marks, certification marks, symbols, logos, and other indicia of origin whether registered with a federal or state government or subsisting solely under the common law, (collectively, the “Marks”), including all good will associated therewith, used in connection with the Services. Agent shall in no way (i) infringe upon, (ii) harm, or (iii) take any action that could be detrimental to the goodwill associated with the Marks or Company. Agent shall not contest the rights of Company in and to these Marks or any other intellectual property rights of Company. Agent hereby renounces any goodwill that is generated based on Agent’s use of the Marks. Any right that Agent may obtain in the Marks, or any other intellectual property rights of Company, as a consequence of Agent’s use thereof shall inure solely to the benefit of Company. Agent is granted the non-exclusive privilege of displaying the Marks in connection with the sale of the Services; provided, however, that Agent shall immediately discontinue the display or use of any of the Marks, or change the manner in which any of the Marks is displayed or used, when requested to do so by Company. The Marks may only be used on or in connection with the Services supplied by Company, in the form and manner specified by Company, or as otherwise approved by Company in writing in advance. Agent may not use the Company name or any of the Marks as part of Agent’s business name without the prior written consent of Company. Upon expiration or termination of this Agreement, Agent shall immediately discontinue all use of the Marks, including, but not limited to, any and all use of such Marks on signs, stationary, advertising and other means of identification. Following expiration or termination of this Agreement, Agent shall in no way represent, whether passively or actively, that it is still an agent of Company. Additionally, Agent shall inform any retail customer who inquires about Services that Agent is no longer an agent and shall refer each such customer to Company. Agent shall promptly notify Company of any suspected infringement or dilutions of any of the Marks, suspected false advertising including use any of the Marks, or suspected acts of cybersquatting, typosquatting, or unauthorized use of any of the Marks as a metatag (collectively “Unauthorized Use”). Company may determine what action (if any) will be taken in respect of any Unauthorized Use of any of the Marks. Agent shall cooperate with Company in the prosecution of any legal action regarding the Unauthorized Use of any of the Marks. Agent shall not copy, reverse engineer, or reproduce the Services or in any way infringe the Marks or enable, assist or cause others to do so. Agent shall not re-package, alter, modify or re-label the Services without the prior written consent of Company.

7. Indemnification. Agent agrees to indemnify, defend and hold Company and its officers, directors, employees, agents and contractors harmless from any loss, cost, expense (including attorney’s fees and expenses), demand, claim, liability, damages or cause of action of any kind or character (collectively referred to as “claim”), in any manner arising out of or relating to (i) any violation or breach of any provision of this Agreement; (ii) any acts or omissions of Agent in the conduct of its business, including, without limitation, the solicitations of orders for the Services; (iii) any statements, representations, warranties or other conduct by Agent in connection with any transaction involving the Services, other than that expressly provided to Agent by Company or otherwise expressly authorized by Company in writing; and (iv) the negligence, recklessness or intentional misconduct of Agent or its officers, directors, employees, or agents.

8. DISCLAIMER; LIMITATION OF LIABILITY. COMPANY MAKES NO WARRANTY TO AGENT, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMIT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, BOTH OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. THE TOTAL LIABILITY OF COMPANY WITH RESPECT TO ANY AND ALL CLAIMS, IRRESPECTIVE OF THE FORM OF ACTION, WHETHER IN CONTRACT, OR TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY) OR OTHERWISE, ARISING OUT OF OR INCIDENT TO THIS AGREEMENT OR USE OF ANY OF THE SERVICES SHALL NOT EXCEED THE PRICE PAID TO COMPANY ALLOCABLE TO THE SPECIFIC SERVICES ON WHICH SUCH CLAIM IS BASED. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFIT OR REVENUES, LOSS OF USE, LOSS OF DATA, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWNTIME COST, OR CLAIMS OF AGENT FOR SUCH DAMAGES, EVEN IF COMPANY KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY SHALL HAVE NO LIABILITY WHATSOEVER TO AGENT FOR ANY CLAIMS OF PATENT, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHT INFRINGEMENT OR MISAPPROPRIATION OF TRADE SECRETS, MADE AGAINST AGENT INCIDENT TO THE PURCHASE OR USE OF SERVICES.

9. Changes in Services. Company may discontinue selling any Service or vary the selection of Services available to Agent upon 30 days prior written notice, or in the event of an emergency, without prior notice to Agent. Company shall have no liability to reimburse Agent for any damages or loss that Agent may sustain by reason of any discontinuing or changing of any Service pursuant to this Section. 

10. Background Investigations. Agent hereby consents to the obtaining by Company of background, credit, and other investigations of Agent and/or any employee or subcontractor of Agent.

11. Insurance. Agent hereby acknowledges that Company does not maintain comprehensive general liability, workman’s compensation, or other insurance on behalf of Agent. Agent shall obtain and keep in force such insurance as Agent determines to be prudent and appropriate to all risks associated with the solicitation of orders for Services, and Agent assumes all risk of the adequacy and sufficiency of any and all such insurance that Agent so obtains.

12. Term, Termination.

(a) Term. The term (“Term”) of this Agreement shall commence on the Effective Date and shall continue thereafter for a period of one (1) year. Company may extend the Term by providing written notice to Agent.

(b) Voluntary Termination. 

(i) Either Company or Agent shall have the right and option to terminate this Agreement after not less than 10 calendar days prior written notice to the other.

(ii) Company may terminate this Agreement immediately upon (1) Agent’s failure to make any payment due under the Agreement, (2) a failure of Agent to timely comply with Company policies, procedures, and instructions in effect from time to time, (3) the commission by Agent of a breach of any of the terms and conditions in this Agreement, (4) the commission by Agent of an act of gross misconduct, including fraud, forgery, theft, or any other act in violation of applicable laws, or of dishonesty, malfeasance, or willful misconduct, or (5) the occurrence of any act by Agent in a manner harmful to the best business interests or reputation of Company.

(iii) Agent may terminate this Agreement if Company commits any material breach of this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice from Agent specifying the nature of such breach; provided that, if any breach is unable to be cured within such period of time, Agent may not terminate this Agreement for such breach so long as Company has commenced efforts to cure such breach within such period of time and is diligently pursuing the completion thereof.

(c) Involuntary Termination. Notwithstanding the provisions of Section 12(a), this Agreement shall terminate, and the Term shall expire, without notice to any party in the event of the insolvency, bankruptcy, liquidation, or filing of a petition seeking relief under the laws of insolvency or bankruptcy by or against Agent.

(d) Effect of Termination. Upon termination of this Agreement, for cause or otherwise, Agent shall cease to be an independent sales agent of the Services, and:

(i) All amounts and indebtedness owing by Agent to Company shall, notwithstanding prior terms of sale, become immediately due and payable;

(ii) Company shall not pay Agent Commissions on any orders solicited by Agent after the termination of this Agreement;

(iii) All unshipped orders may be canceled by Company without liability of either party to the other;

(iv) Agent shall promptly remove all signage and other references to Company and the Marks.

(e) Survival of Certain Obligations of Agent. Claims or disputes that arise at or prior to termination of this Agreement shall not be extinguished as a result of such termination and the obligations of Sections 6, 7, and 13 herein shall survive termination of this Agreement. Except as provided in this Section, Company has no other obligation to Agent upon termination of this Agreement. 

(f) Injunctive Relief. Agent acknowledges a violation of Sections 6, 7, and 13 would cause immediate harm to Company and that damages for such harm would be difficult to calculate. Agent agrees that Company may seek an injunction, temporary, permanent or otherwise, restraining order or such other equitable relief as may be available to prevent or restrain Agent’s breach of these Sections.

13. Confidentiality.

(a) “Confidential Information” means all information of every nature and kind, whether written, oral, on magnetic or other storage media, or in any other form of every nature and kind, including without limit: prospective and existing customer information of Company, this Agreement, plans, formulas, formulations, specifications, designs, prototypes, technology, samples, patents, copyrights, trade names, trademarks, business plans, sales methods, and present and future products and policies of Company, all as disclosed in any manner by Company, and any derivates of such information. “derivatives” means (a) for copyrightable or copyrighted material, any translation, abridgment, revision or other form in which an existing work may be recast, transformed or adapted; (b) for patentable or patented material, any improvement thereon; and (c) for material that is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected under copyright, patent and/or trade secret laws.

(b) Acknowledgement. Agent acknowledges and agrees that Confidential Information is proprietary to and a valuable trade secret of Company and that any disclosure or unauthorized use thereof will cause irreparable harm and loss to Company.

(c) Obligations. In consideration of the disclosure of Confidential Information, Agent agrees to treat Confidential Information in confidence and to undertake the following additional obligations with respect thereto:

(i) to use Confidential Information for the sole purpose of fulfilling its obligations under this Agreement;

(ii) not to copy, in whole or in part, that Confidential Information specified by Company as not to be copied;

(iii) to limit dissemination of Confidential Information to only those employees who have a need to know to perform the limited tasks set forth in this Agreement, and to prevent further dissemination and/or the use of Confidential Information by any employee or agent for any purpose other than that set forth in this Agreement; and

(iv) to return Confidential Information, including all copies and records thereof, to Company upon receipt of request therefor, or a decision by either party to terminate this Agreement, whichever occurs first.

(d) Non-circumvention. In addition to the obligations above, Agent expressly agrees that Agent will not, directly or indirectly, reverse engineer, analyze or otherwise subject Confidential Information to any tests that would disclose the identity or makeup of the Confidential Information, nor shall Agent permit others to reverse engineer, analyze or otherwise subject Confidential Information to any tests that would disclose the identity or makeup of the Confidential Information. Agent agrees Agent will not, directly or indirectly, make for or sell (except as expressly authorized herein) to any third party any product that uses the Confidential Information.

14. Independent Contractor Status. Agent is and shall remain an independent contractor with Company in the performance of the terms and conditions hereof and in the performance of the obligations hereunder. Nothing contained herein is intended nor shall be construed to constitute Agent as an employee, agent, partner, or joint venture of or with Company. Nothing contained in this Agreement is intended or shall be construed as constituting the exercise by Company of any degree of control or direction over the manner or method by which Agent performs its obligations hereunder. As an independent contractor with Company, Agent shall be solely responsible for all incidents of employment for herself or itself and any employee of Agent, including without limitation any employee benefits, workman’s compensation insurance, unemployment insurance, withholding and payment of federal and state income taxes and social security and Medicare taxes, and other legally required payments on sums received by Agent from Company, or otherwise. If any charges or taxes described in this Section are levied against Company for any reason, then Company shall be entitled to be immediately reimbursed by Agent for any sums paid by Company in respect thereof.

15. No Authority to Bind. Agent shall have no right, power, or authority to bind Company to any term, condition, contract, obligation, or liability binding on Company to any party whatsoever. All costs, expenses, and liabilities incurred by Agent in the performance of its obligations hereunder shall be an obligation solely of Agent.

16. Assignment. Company may assign the rights of Company hereunder without prior notice to Agent and upon such assignment, Company shall be released from all liability hereunder. The provisions hereof are for the benefit of Company and Agent and not for any other entity. Agent may not delegate or assign any or all of Agent’s duties or rights hereunder without the prior written consent of Company, such consent to be granted or withheld in Company’s sole and absolute discretion, and any such delegation or assignment shall be ineffective.

17. Notices. Except as specifically provided in this Agreement, all notices required hereunder shall be in writing and shall be given by personal delivery, overnight courier service, first class mail postage prepaid, at the parties’ respective addresses set forth herein, or at such other address(es) as shall be specified in writing by such party to the other party in accordance with the terms and conditions of this Section. All notices shall be deemed effective upon personal delivery, or one business day following deposit with any overnight courier service, or three business days following deposit with the U.S. Postal System, first class postage attached, in accordance with this Section. Notices for Agent shall be sent to the address set forth by Agent when registering with the Company. Notices for Company shall be sent to the address set forth for Company on the Company website. 

18. Force Majeure. Company shall not be deemed in default hereof for delay, failure in performance, loss, or damage due to fire, strike, embargo, explosion, power irregularities or interruptions, earthquake, nuclear incident, volcanic action, flood, war, water, the elements, labor dispute, civil disturbances, governmental requirement, civil or military authority, pandemic, acts of God or public enemy, inability to secure transportation facilities, acts or omissions of common carriers, or other causes beyond the reasonable control of Company.

19. Attorneys’ Fees.  If any party hereto resorts to litigation to remedy a breach of this Agreement, the prevailing party in the litigation, in addition to any other remedies available under this Agreement or by law, may collect all or a portion of its reasonable attorney fees and other costs and expenses of litigation at the discretion of the judge, who shall consider both the reasonableness of the attorney fees and other costs and the relative merits of each party’s position. It is the intent of all parties hereto to avoid litigation without preventing a party from seeking redress for a valid dispute. To that end, all parties express their intent and agreement that unreasonable attorney fees and costs not be awarded, and that all or a portion of reasonable attorney fees and costs be awarded when in the court’s opinion the party against whom such fees and costs are awarded has maintained position(s) which have significantly less merit compared to the prevailing party’s position(s).

20. Governing Law, Consent to Jurisdiction, Venue. This Agreement has been entered into in Knoxville, Tennessee, and shall be construed and enforced in accordance with the laws of the State of Tennessee, without resort to its conflict of laws provisions. The parties hereby irrevocably submit to the jurisdiction of the state courts of the State of Tennessee and to the jurisdiction of the United States District Court for the Eastern District of Tennessee, for the purpose of any suit, action, or other proceeding arising out of or based upon this Agreement; waive and agree not to assert by way of motion, as a defense, or otherwise, in any such suit, action, or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action, or proceeding is brought in any inconvenient forum, that the venue of the suit, action, or proceeding is improper, or that this Agreement or the subject matter hereof may not be enforced in or by such court; and waive and agree not to seek any review by any court of any other jurisdiction which may be called upon to grant an enforcement of the judgment of any such Tennessee state or federal court. The parties hereby consent to service of process by registered mail at the address to which notice is to be given. Venue for any proceeding under this Agreement will be solely and exclusively in Knox County, Tennessee, in courts of the State of Tennessee, or federal district courts.

21. Representations. Agent represents and warrants that the signing of this Agreement and performance under this Agreement will not violate any other agreement that Agent has entered into.

22. Miscellaneous. The invalidity, in whole or in part, of any term or condition hereof shall not affect the validity of the remainder hereof. The failure of either Company or Agent to enforce at any time any of the terms and conditions hereof shall not constitute or be construed to be a waiver of such terms and conditions or of the right of such party thereafter to enforce any such terms and conditions. Agent is solely responsible for complying with any orders, rules, and regulations of any federal, state or local governmental authority, applicable to the purchase and use of Services. Except as expressly provided herein, the terms and conditions hereof are for the benefit of Company and Agent and no other party. This Agreement constitutes the final and entire agreement between Agent and Company and supersedes any prior agreements, written or oral. There are no other agreements written or oral. Company has made no representation, warranty, or covenant not contained in this Agreement. Further, no amendment, modification, or waiver of, or supplement to, this Agreement shall be effective, unless it is in writing. Company may send Agent written notification of any modification, amendment or supplement to this Agreement and Agent will have thirty (30) days from the date of such written notification to object in writing to such modification, amendment or supplement, in which case Company will have the right to either immediately terminate this Agreement or allow this Agreement to continue without the proposed modification, amendment or supplement. Failure to object to any modification, amendment or supplement in writing will constitute Agent’s acceptance of such modification, amendment or supplement. The agreements made herein may not be modified, supplemented, or changed in whole or in part by any waiver (other than a written waiver signed by the party to be charged), oral representation, or course of dealing. The terms and conditions of this Agreement shall govern notwithstanding any inconsistent or additional terms and conditions of any other document submitted by Agent. This Agreement may be executed in two (2) or more counterparts, each of which shall constitute an original, but together which shall constitute one and the same instrument. Each of the undersigned individuals for themselves represents and warrants that they have full power and authority to execute this Agreement on behalf of the party designated below for whom they sign.