QWEST SERVICES CORPORATION MASTER REPRESENTATIVE AGREEMENT
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This Agreement is made by and between Qwest Services Corporation, 0000
Xxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 ("Qwest") and the representative identified
below ("Representative"). This Agreement shall be effective on the date that
Qwest accepts it after Representative's execution ("Effective Date").
1. Solicitation of Orders. Representative may, during the term of this Agreement
and on a non-exclusive basis, solicit orders only from prospective commercial
(not residential) subscribers to telecommunications and multimedia services
specified and provided by Qwest ("Services"). A list of the Services is posted
on Qwest's Q. Partner web site at xxxxx://x.xxxxxxx.xxxxx.xxx/xxxxx.xxx and is
made a part of this Agreement. Qwest reserves the right to modify the Services,
the prices o( the Services and associated commissions set forth in the
applicable commission addendum effective upon posting the modifications to
Qwest's Q. Partner web site or other notice to Representative.
2. Commissions. Qwest shall pay to Representative a commission in accordance
with the applicable commission addendum, on valid orders for Services submitted
by Representative, for each actual subscriber of Services ("Subscriber") which
arose directly from the solicitation efforts of Representative in accordance
with the terms of this Agreement. Qwest may also pay to Representative
Commissions for Qwest offerings other than the Services in accordance with any
other addenda agreed upon by Representative and Qwest in writing and attached
hereto. Qwest may in its sole discretion accept or reject any prospective
Subscriber or service order submitted to Qwest by Representative and terminate
or assign any agreement for Services with any Subscriber. Representative shall
have one hundred eighty (180) days from the date of any commission statement to
dispute the accuracy and completeness of such statement, and any such statement
(or portion thereof) not disputed within such period shall be deemed correct and
binding upon Representative. Upon termination of this Agreement pursuant to
Section 9, Qwest's commission payment obligation with respect to each account
for which Representative receives a commission pursuant to this Agreement shall
survive so long as the Subscriber remains a customer of Qwest (including any
extensions or renewals), but in no event longer than twenty four (24) months
past such termination; provided, however, that Representative shall be bound by
all material obligations of this Agreement for so long as commissions are paid
to Representative pursuant to this Agreement. Qwest reserves the right to
terminate commission payments immediately upon termination of this Agreement in
accordance with Section 10. Qwest shall have no liability to Representative for
commissions that might have been earned by Representative under this Agreement
but for the inability or failure of Qwest to provide Services to any person
solicited by Representative or for whom an order was submitted by Representative
or in the event of discontinuation or modification of the Services. In order for
a Contract Renewal to be eligible for compensation under the applicable
commission addendum, Representative must have been responsible for the original
sale to the customer. Contract Renewals are defined as changing the term of an
existing customer contract or extending a customer's service contract, by
selling a new contract to that customer prior to a current contract's
expiration. Contract Renewals also include renewals of any expired customer
contracts. In the event that any Subscriber account(s) for which Representative
receives a commission is merged into an existing Subscriber account(s) for which
Representative is not entitled to a commission, and such account migration is by
reason of a merger, acquisition, operation of law, or otherwise at the request
of the Subscriber, Qwest's commission obligation on the merged Subscriber
account shall cease immediately upon such account migration.
3. Relationship of Parties. Representative is an independent contractor, and no
joint venture, partnership, agency or employment relationship is created by this
Agreement. Representative shall be responsible for the control and acts of its
employees and all agents, including all Direct Sub-Agents (as defined) and all
indirect sub-agents (collectively "Sub-Agents"), as well as any other agents of
Representative. The term "partner" as used in any materials Qwest provides to
Representative shall not be deemed to create a partnership between the parties.
Neither party is authorized to bind the other with respect to any matter
including, without limitation, express or implied agreements, guarantees,
representations or debts. Representative shall do nothing that would tend to
discredit, injure the reputation of, or reflect adversely upon Qwest or its
products or services. Representative shall be responsible for all harm caused by
or occurring in connection with Representative's acts, omissions or
misrepresentations. Nothing contained herein shall be deemed to limit Qwest's
ability to market and to solicit sales of the Services directly, through other
representatives, affiliates, distributors, or dealers, or through any other
channel of distribution at any time in any area, as Qwest may determine in its
sole discretion. Qwest ultimately is responsible for its customer relationship
with a Subscriber and for resolution of all customer disputes regarding the
Services.
4. Sub-Agency. Prior to any sales of Services or solicitation of orders for
Services by a direct sub-agent of Representative ("Direct Sub-Agent"),
Representative shall enter into an enforceable written agreement with such
Direct Sub-Agent ("Sub-Agent Agreement") that (i) requires such Direct Sub-Agent
to comply with (A) the obligation to maintain responsibility for the control and
acts of each of its Sub-Agents, as well as the employees and all agents of such
Sub-Agents; (B) the prohibition against binding Qwest with respect to any matter
including, without limitation, express or implied agreements, guarantees,
representations or debts; (C) the prohibition against taking any action that
would tend to discredit, injure the reputation of, or reflect adversely upon
Qwest or its products or services; (D) the obligation to maintain responsibility
for all harm caused by or occurring in connection with its Sub-Agents' acts,
omissions or misrepresentations; (E) the obligation to comply with the
responsibilities as set forth in Section 5 sub-sections (a) through (f) of this
Agreement; (F) the obligation to make the representations as set forth in
Section 6.a. sub-sections (1) through (6) of this Agreement; (G) the obligation
to maintain confidentiality as set forth in Section 7 of this Agreement; (H) the
prohibition against the solicitation of Subscribers or employees of Qwest as set
forth in Section 8 of this Agreement; (I) the obligation to comply with the
terms of Addendum X-0, Xxxxxxxx X-0, Xxxxxxxx X-0; and Addendum C-1 of this
Agreement, (ii) requires such Direct Sub-Agent to include in all agreements with
all of its sub-agents, terms and conditions that are substantially similar to
requirements set forth in Section 4(i) sub-sections A) through (I) above, and
(iii) expressly names Qwest as an intended third party beneficiary with the
right to rely on and directly enforce the terms thereof. Representative shall
enforce each Direct Sub-Agent Agreement and shall notify Qwest of any breach or
suspected breach of any obligation under a Direct Sub-Agent Agreement, as well
as any breach or suspected breach of any obligation under an agreement with any
other Sub-Agent, that comes to its attention. In addition, Representative and
Sub-Agent shall cooperate with Qwest in any legal action to prevent or to stop
unauthorized use or sales of Services,
5. Representative Responsibilities.
a. Unless Qwest otherwise consents in writing, Representative shall solicit
orders only in accordance with (i) this Agreement, (ii) other terms established
by Qwest in writing, (iii) Addendum B-1 with respect to Qwest Services to which
a Qwest Rate and Service Schedule ("Service Schedule") applies and (iv) the
prices set forth in the applicable Service Schedule (as posted on Qwest's Q.
Partner web site or otherwise provided to Representative).
b. If a prospective or current Subscriber of Qwest is solicited or
serviced, as the case may be, by both Representative and either another
independent authorized sales representative or an employee of Qwest, Qwest
reserves the right to determine how Representative and/or either another
independent authorized sales representative or an employee of Qwest will be
credited with such Subscriber or order, and Representative agrees to be bound by
Qwest's decision in this regard.
c. Representative shall identify itself as a Representative for the Qwest
Business Partner Program' solely in connection with the marketing to
prospective Subscribers and shall otherwise identify itself as an independent
business.
d. Representative shall only use Qwest-approved marketing materials and
shall not develop or use any other product literature or modify any materials
provided by Qwest. Qwest shall provide to Representative (i) Qwest approved
literature and marketing materials describing Qwest and the products and
Services at prevailing prices and (ii) a general product overview.
Representative shall make no representations or warranties relating to the
services except as set forth in the literature, approved in writing by Qwest, or
as otherwise expressly permitted by Qwest.
e. Representative shall not use the name, service marks or trademarks of
Qwest or its affiliates, including without limitation Qwest Business Partner
Program"", without Qwest's prior written consent. Representative shall abide by
the Guidelines Regarding Use of Qwest's Service Marks set forth in Addendum C-1.
f. Representative shall meet the requisite requirements for participation
in the Qwest Business Partner Program"" as set forth on Qwest's Q. Partner web
site. Qwest reserves the right to modify those requirements effective upon
posting the modifications to Qwest's Q. Partner web site or other notice to
Representative.
g. Representative shall not directly induce or solicit any person employed
by Qwest to terminate his or her relationship with Qwest for the purpose of
providing sales or marketing services on behalf of Representative, either
directly or as a sub-agent. Further, for a period of one hundred eighty (180)
days following a Qwest employee's voluntary termination from Qwest,
Representative shall not directly solicit such former employee for the purpose
of providing sales or marketing services on behalf of Representative, either
directly or as a sub-agent. In addition, if, during the term of this Agreement,
Representative employs any former employee of Qwest, or contracts with any
former employee of Qwest to be a Direct Sub-Agent, Representative will not,
without prior written approval of Qwest, allow such former Qwest employee: (i)
access to any Qwest Confidential Information associated with this Agreement,
including, but not limited to, the terms and conditions of this Agreement; or
(ii) to work on or consult on, or in any way be associated with, the
Representative's performance of its duties in this Agreement.
6. Representations.
a. Representative represents and warrants that:
(1) at its own expense, it is in compliance with and shall continue to be in
compliance with all applicable international, federal, state, and local laws and
regulations applicable to its performance under this Agreement and it shall
maintain in full force and effect all licenses and permits required for its
performance under this Agreement;
(2) it is not currently bound by any other agreements, restrictions, or
obligations that interfere with this Agreement and will not assume any such
obligations during the term of this Agreement;
(3) in performing its duties under this Agreement, Representative shall be
governed in all dealings with members of the public by professional standards of
honesty, integrity and fair dealing;
(4) it shall make no representations or guarantees concerning Qwest or its
products or services which are false, misleading or inconsistent with the
representations set forth in promotional materials, literature, manuals and
price lists published and supplied by Qwest from time to time (including,
without limitation, the Tariff and the Agency Price List).
(5) it shall, at all times during the term of this Agreement, maintain at its
sole expense (i) worker's compensation insurance with statutory limits as
required in the states of operation, even if not required by statute, and (ii)
commercial general liability insurance for claims of bodily and personal injury,
death and property damage. Such insurance shall provide coverage in the amount
of at least one million dollars ($1,000,000.00) per occurrence. Upon request by
Qwest, Representative shall furnish proof satisfactory to Qwest that all
required insurance coverage is in full force and effect.
(6) neither Representative nor any of its officers, directors, employees or
representatives have ever been dismissed, fined, or otherwise sanctioned for
fraudulent or improper sales practices.
b. Qwest represents and warrants that:
(1) at its own expense, it is in compliance with and shall continue to be in
compliance with all applicable international, federal, state, and local laws and
regulations applicable to its performance under this Agreement and it shall
maintain in full force and effect all licenses and permits required for its
performance under this Agreement;
(2) it is not currently bound by any other agreements, restrictions, or
obligations that interfere with this Agreement and will not assume any such
obligations during the term of this Agreement;
(3) in performing its duties under this Agreement, Qwest shall be governed in
all dealings with members of the public by professional standards of honesty,
integrity and fair dealing.
7. Confidentiality.
a. During the term of this Agreement and after termination or expiration of
this Agreement, neither party shall in any way transfer to any third party or
use in direct or indirect competition with the other party or any of its other
agents any information disclosed by a party to the other party that is marked as
confidential or that is or should be reasonably understood to be confidential
{"Confidential Information"). Confidential Information includes, but is not
limited to, technical information, price lists, data and business plans.
Confidential Information is the exclusive property of the disclosing party and
may be used by the receiving party solely in the performance of its obligations
under this Agreement.
b. The Federal Communications Commission ("FCC") has promulgated certain
rules and orders relating to the use of Customer Proprietary Network Information
("CONE"), as defined in the Communications Act of 1934, as amended. It is
essential for both Qwest and Representative to fully comply with such CONE
Rules. Qwest may provide Representative with, and Representative may otherwise
receive, certain information regarding Qwest's Subscribers pursuant to the terms
of this Agreement, including, but not limited to. Subscribers' names, addresses
and telephone numbers, and other Subscriber information that relates to
telecommunications and/or other services provided by Qwest to its Subscribers
("Subscriber Information"). The Parties agree that all Subscriber Information
provided to Representative by Qwest or otherwise received by Representative
pursuant to this Agreement, whether oral or written, and whether disclosed prior
to or after the effective date of any amendment hereto, including, but not
limited to, Subscriber Information and CONE, will be deemed and treated as
Confidential Information under this Agreement, whether or not such information
is marked as confidential. Representative will not use Subscriber Information
for telemarketing, other forms of marketing or any other purpose including but
not limited to preparing aggregated information or any new sources of
information, except as specifically approved in writing by an authorized agent
of Qwest. Representative shall limit access to the Subscriber
Information solely to those employees who need to have access to it in order to
perform under this Agreement. Representative shall not share, disclose, market
or sell Subscriber Information to any other person or entity, including any
affiliate of division of such party. At the conclusion of the Agreement, or any
time at the specific request of Qwest, any and all Subscriber Information,
including copies of any notes, reports, or other descriptive materials of any
kind will be returned to Qwest or, alternatively, Qwest may, at Qwest's sole
discretion, permit Representative to timely destroy such Subscriber Information
provided that Representative shall, immediately after such destruction, certify
in writing that the Subscriber Information has been so destroyed.
c. The parties agree that monetary damages for breach of this Section are
not adequate and that either party shall be entitled to injunctive relief with
respect to such breach. In addition, Representative shall not make any public
announcement Including but not limited to press releases regarding this
Agreement or any relation between Representative and Qwest, without prior
written consent from the Qwest Corporate Communications Department. This
Confidential Information section and all obligations contained therein will
survive any termination or expiration of the Agreement.
8. No Solicitation. During the term of this Agreement and so long after the
termination of the Agreement as Qwest is obligated to pay to Representative
commissions, as set forth in Section 2, Representative shall not directly or
Indirectly induce any Subscriber or its affiliates to discontinue its
relationship with Qwest, provided that this clause shall not be interpreted to
restrict in any way the ability of Representative to seek, for itself or its
customers, and present to its customers competitive bids for telecommunication
services, including but not limited to telecommunication services similar to the
Services. Where Representative is assisting a Subscriber in obtaining additional
or replacement telecommunications services, Representative shall, subject to
Subscriber consent, give Qwest an opportunity and reasonable time to respond to
any competitive offer provided to Representative on behalf of the Subscriber
prior to presenting such competitive offer to the Subscriber. Where Qwest is
able to match or beat such competitive offer, Representative shall first present
Qwest's offer to the Subscriber,
9. Term. The initial term of this Agreement shall be for a period of one (1)
year from the Effective Date and shall be renewed thereafter automatically for
successive one (1 } year terms, unless sooner terminated under this Agreement.
Either party may terminate this Agreement at any time upon giving the other
party at least thirty (30) days prior written notice.
10. Termination by Qwest.
a. This Agreement may be terminated by Qwest: i) upon at least ten (10) days
prior written notice by Qwest for breach by Representative of any provision of
this Agreement, unless such breach has been cured by Representative within the
notice period: (ii) immediately upon written notice by Qwest (A) if
Representative participates or engages in any activity relating to fraud against
Qwest or if Representative falsifies or forges any order for service; (B) for
insolvency, bankruptcy, receivership, dissolution or death of Representative or
Representative's attempted assignment of the Agreement without Qwest's prior
written consent; (C) in the event Qwest discovers any irregular marketing
activity by Representative or any irregular activity by current or prospective
Subscribers solicited by Representative; or (D) if Representative fails to
comply with the provisions set forth in Sections 5.e. 6.a(6), 7, 8 or Addendum
B-2 of this Agreement; (iii) upon thirty (30) days prior written notice by Qwest
in the event that Representative fails to achieve and to maintain any applicable
minimum requirement as set forth in the applicable commission addendum. For
purposes of this Agreement, 'irregular marketing activity1 shall refer to any
marketing activity that violates any federal, state, or local law, any Qwest
policy communicated via Q.Partner. or the terms of this Agreement. For purposes
of this Agreement, "irregular activity by current or prospective Subscribers"
shall refer to any activity of any Subscriber that violates any federal, state
or local law, the terms of this Agreement or the terms of Qwest's Acceptable Use
Policy, if applicable, if such activity is under the direction of Representative
or based on a representation made by Representative.
b. In the event a Sub-Agent (as defined) (i) participates or engages in any
activity relating to fraud against Qwest; (ii) falsifies or forges any order for
service; (iii) engages in any Irregular Marketing Activity, or any other
activity that is in violation of any federal, state or local law; or (iv)
breaches any material provision of this Agreement, then this Agreement may be
terminated by Qwest upon at least ten (10) days prior written notice by Qwest,
unless within such ten (10) day cure period Representative (A) terminates such
Sub-Agent from all participation in, and association of any kind with this Qwest
sales and marketing program, and (B) delivers to Qwest sufficient proof, to
Qwest's reasonable satisfaction, that such Sub-Agent has been so terminates by
Representative.
11. Limitation of Liability. EXCEPT WITH REGARD TO REPRESENTATIVE'S
INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, AND SET FORTH IN SECTION 7,
NEITHER PARTY, ITS AFFILIATES OR CONTRACTORS SHALL BE LIABLE FOR ANY INDIRECT.
INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR
IMPUTED PROFITS OR REVENUES OR LOST DATA OR COSTS OF COVER ARISING FROM OR
RELATED TO THIS AGREEMENT, OR EITHER PARTY'S PERFORMANCE OR NONPERFORMANCE
WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS
OR DAMAGE. QWEST'S LIABILITY HEREUNDER WITH SUCH THE CLAIM IS MADE.
Notwithstanding the foregoing, Qwest has no responsibility to Representative and
shall incur no liability with respect to (i) the continued availability or
operation of any Services, (ii) any adjustment(s) by Qwest to the terms and
conditions of any Services, (iii) the failure by Qwest to accept any prospective
Subscriber, (iv) the failure by Qwest to provide or to continue to provide any
Services to a prospective or current Subscriber due to an initial or continuing
credit approval process or due to termination or assignment of such Subscriber's
agreement with Qwest and (v) any non-Qwest products or services marketed, sold
or licensed by Representative.
12. Indemnification.
a. Representative shall indemnify, defend, and hold harmless Qwest and its
officers, directors, employees, agents and affiliates from and against any and
all claims, demands, actions, losses, damages, assessments, charges,
liabilities, costs and expenses (including, without limitation, interest,
penalties, attorney's fees and disbursements) which may at any time be suffered
or incurred by or be asserted against any or all of them, directly or
indirectly, on account of or in connection with: (i) Representative's default
under any provision in this Agreement, breach of any warranty or representation
in this Agreement, or failure in any way to perform any obligation under this
Agreement; or (ii) any Claim, cause Of action, judgment, liability or expense
relating to or arising out of the acts or omissions of Representative, its
employees, contractors or agents.
b- Qwest shall, to the extent provided in this Section, indemnify, defend
and hold harmless Representative from and against any third-party claim, action,
suit or proceeding ("Claim") by a Subscriber brought to Qwest by Representative
pursuant to this Agreement, which Claim is directly
related to Qwest's provision of the Services to such Subscriber; provided that
Qwest shall not have any obligation to indemnify Representative if such Claim
was caused directly or indirectly by any, action or omission of Representative
or any other breach of this Agreement by Representative. Qwest's obligation to
indemnify Representative is contingent upon: (i) Representative providing Qwest
prompt written notice of any Claim and (ii) Representative providing Qwest, at
Qwest's expense, all information and assistance reasonably requested by Qwest
for Qwest to defend or to bring a countersuit in conjunction with such Claim.
This Section sets forth the sole and exclusive remedy of Representative and the
entire obligation and liability of Qwest as to any Claims by a Subscriber
related to Qwest's provision of the Services.
13. Notices. Notices to be given pursuant to this Agreement shall be in writing
and shall be deemed to have been duly and properly given on the earlier of: (t)
the date such notice has been received; (ii) the next day if sent by overnight
courier designated for next day delivery or (iii) five (5) days after deposit of
such notice in the United States Mail, postage prepaid, to be delivered by
certified mail, return receipt requested, addressed to the party at the address
given in this Agreement or at such address as such party may designate in
writing from time to time.
14. Dispute Resolution. Any dispute arising out of this Agreement which cannot
be resolved by the parties will be settled by arbitration, which will be
conducted in accordance with the JAMS Comprehensive Arbitration Rules. Either
party may initiate arbitration by providing written demand for arbitration to
JAMS (with a copy to the other party), a copy of this Agreement and the
administrative fee required by JAMS. The written demand for arbitration shall be
sufficiently detailed to permit the other party to understand the claim(s) and
identify witnesses and relevant documents. The remaining cost of the
arbitration, including arbitrator's fees, shall be shared equally by the
parties; provided, however, each party shall bear the cost of preparing and
presenting its own case (including its own attorneys' fees). The arbitrator has
no authority to award any indirect, incidental, special, punitive, or
consequential damages, including damages for lost profits. The arbitrator's
decision shall follow the plain meaning of the Agreement and shall be final,
binding, and enforceable in a court of competent jurisdiction. If either party
fails to comply with the dispute resolution process set forth herein (e.g.,
non-payment of an arbitration award) and a party Is required to resort to court
proceedings to enforce such compliance, then th8 non-complying party shall
reimburse all of the costs and expenses incurred by the party requesting such
enforcement (including reasonable attorneys' fees).
15.Miscellaneous. Representative may not assign this Agreement or any of its
rights or obligations hereunder without the prior written consent of Qwest. In
the event that any portion of this Agreement is held to be unenforceable, the
unenforceable portion shall be construed as nearly as possible to reflect the
original intent of the parties and the remainder of the provisions shall remain
in full force and effect. Neither party's failure to insist upon strict
performance of any provision of this Agreement shall be construed as a waiver of
any of its rights hereunder. Neither the course of conduct between parties nor
trade practice shall act to modify any provision hereunder. The terms and
conditions of this Agreement, including all Addenda, shall prevail
notwithstanding any conflicting terms and conditions of any order form or other
form for order solicitation submitted by Representative to Qwest. All terms and
provisions of this Agreement that should by their nature survive the termination
of this Agreement shall so survive. Neither party will be liable for any delay
or failure to perform its obligations hereunder (except with regard to payment
obligations) where delayed or hindered by war, riots, embargoes, strikes or acts
of its vendors or suppliers, accidents, acts of God, changes in law or
government regulation or any other event beyond its reasonable control. The laws
of the State of New York shall govern this Agreement. This Agreement and any
addenda or order forms accepted hereunder constitute one and the same legally
binding instrument and the entire agreement between Representative and Qwest,
and it supersedes all prior oral or written agreements between the parties with
respect to the matters provided for herein. This Agreement shall not be amended
except by written amendment signed by authorized representatives of both parties
to this Agreement.
Network Installation-Corporation
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
QWEST SERVICES CORPORATION
/s/ Xxx Xxxxx
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Xxx Xxxxx
ADDENDUM A-1 Commission Rate Schedule
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1. Commission. During the term of this Agreement and provided that
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Representative is not in default of any obligations under this Agreement,
Representative shall receive a commission as set forth in Section 2 below based
on Billed Monthly Revenue {as defined below in this Section 1), for new Services
solicited and sold by Representative in accordance with Qwest's then existing
Service Schedules. For purposes of this Agreement, "Billed Monthly Revenue"
(which may also be referred to in certain communications as "Commissionable
Revenue") shall mean the interexchange toll or usage charges billed by Qwest
related to the use of Services by Subscribers (excluding taxes, installation
charges, subscription fees, surcharges, directory assistance, pass through
access/egress or related charges imposed by third parties, and a percentage
related to estimated uncollectibles, unbillables, and LEG holdbacks (if such
percentage deduction is necessary as determined by Qwest in its sole discretion
and upon written notice to Representative) and revenue attributable to Touch
America services). The amount of commissions paid to Representative under this
Addendum A-1 shall be derived by applying the commission percentage set forth
below to eligible charges (after application of all discounts, credits, and
promotions) incurred under the Service Schedule for Qwest Services used by
Subscribers who are accepted by Qwest. Qwest shall use commercially reasonable
efforts to make commission payments to Representative approximately forty-five
(45) days from the end of the month to which said percentage is applied. Qwest
reserves the right to compare, from time to time, Billed Monthly Revenue to
"Collected Monthly Revenue" (defined as the amount of Billed Monthly Revenue
actually collected by Qwest) and charge back to Representative the amount of
commissions paid to Representative in excess of the amount Representative would
have received had Qwest paid commissions based on Collected Monthly Revenue.
Qwest reserves the right to set-off from commissions without notice any amount
due to Qwest by Representative or its affiliates, including, without limitation,
any commissions paid to Representative in error. Qwest may withhold the last
month's payment of commissions owed to Representative for up to six (6) months
in order for Qwest to determine whether to charge back to Representative any
commissions paid in excess of commissions based on Collected Monthly Revenue.
2. Commission percentages. Subject to Section 1 of this Addendum A-1, Qwest
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shall pay to Representative commissions in accordance with this Section 2. The
commission percentage is valid only on standard Qwest Services as normally
offered to Qwest customers in accordance with Qwest's then existing Service
Schedules. Qwest shall determine commissions on non-standard Qwest Services
and/or Qwest Services provided under a special pricing and/or promotion
arrangement on a case-by-case basis.
(A) Commission*:
For accounts other than Existing Accounts and Previously Fixed Accounts (both as
defined in Exhibit 1 to this Addendum A-1 if applicable), Qwest shall pay
Representative a monthly commission percentage of fourteen percent (14%) on the
Billed Monthly Revenue Qwest derives under this Agreement.
* Percentages are applied from the first dollar of Billed Monthly Revenue.
3. Minimum Billed Monthly Revenue. Qwest may terminate the Agreement
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immediately upon written notice in the event that in the nineteenth (19Ih) month
from the Effective Date Representative fails to achieve and to maintain, in each
subsequent month, Billed Monthly Revenue derived under this Addendum A-1 of at
least one hundred thousand dollars ($100,000). No commissions shall be due or
payable following termination pursuant to this Section
ADDENDUM A-10 Local Services Commission Rate Schedule
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1. Commission. During the term of this Agreement and provided that
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Representative is not in default of any obligations under this Agreement,
Representative shall receive a commission as set forth in Section 2 below based
on Billed Monthly Revenue (as defined below in this Section 1) for Local
Services (as specifically posted on Qwest's Q.Partner web site at
________________________ solicited and sold by Representative in accordance with
the Agreement. For purposes of this Addendum A-10, "Billed Monthly Revenue"
(which may also be referred to in certain communications as "Commissionable
Revenue") shall mean the usage charges billed by Qwest related to the use of
Local Services by Subscribers (excluding taxes, FCC charges and EAS charges,
right-of-use fees, Centrex Exchange Access charges, NARS (Network Access
Registers), CALC (Customer Access Line Charges), DID (Direct Inward Dialing)
number charges, GSP (Global Service Provider) charges, installation charges or
other non-recurring charges, subscription fees, surcharges, directory
assistance, pass through access/egress or related charges imposed by third
parties, and a percentage related to estimated uncollectibles and/or
unbillables). The amount of commissions paid to Representative under this
Addendum A-10 shall be derived by applying the commission percentage set forth
below to eligible charges (after application of all discounts, credits, and
promotions) incurred for Local Services used by Subscribers who are accepted by
Qwest. Qwest shall use commercially reasonable efforts to make commission
payments to Representative approximately forty-five (45) days from the end of
the month to which said percentage is applied. Qwest reserves the right to
compare, from time to time, Billed Monthly Revenue to "Collected Monthly
Revenue" {defined as the amount of Billed Monthly Revenue actually collected by
Qwest) and charge back to Representative the amount of commissions paid to
Representative in excess of the amount Representative would have received had
Qwest paid commissions based on Collected Monthly Revenue. Qwest reserves the
right to set-off from commissions without notice any amount due to Qwest by
Representative or its affiliates, including, without limitation, any commissions
paid to Representative in error. Qwest may withhold the last month's payment of
commissions owed to Representative for up to six (6) months in order for Qwest
to determine whether to charge back to Representative any commissions paid in
excess of commissions based on Collected Monthly Revenue.
2. Commission percentages. Subject to Section 1 of this Addendum A-10, Qwest
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shall pay to Representative a monthly commission percentage of fifteen percent
(15%)". The commission percentage is valid only on standard Qwest Local Services
as normally offered to Qwest customers in accordance with Qwest's then existing
Service Schedules, tariffs or other generally available offerings. Qwest shall
determine commissions on non-standard Qwest Services and/or Qwest Services
provided under a special pricing and/or promotion arrangement on a case-by-case
basis.
* Percentages are applied from the first dollar of Billed Monthly Revenue.
ADDENDUM X-x
Solicitation Of Services Subject to a Service Schedule
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1. Regulated Services. All Qwest regulated Services, including, but not
limited to, Q.GUARANTEEDSM and Q.INTB3RITYSM Services are provided pursuant to
Qwest's Service Schedules. The Service Schedules are found at 0000 Xxxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxx 00000. To the extent the Services are
subject to an interstate, state or international tariff of Qwest or its
affiliates {'Tariffs"), in such cases, references in this Agreement to Service
Schedule shall instead be deemed to refer to the applicable Tariff. Qwest may
from time to time modify Tariff or Service Schedule. Qwest will post changes to
the Service Schedule to the website listed above.
Representative represents and acknowledges that such Services shall be described
only in accordance with Qwest's Service Schedules, to the extent applicable.
2. InterLATA Services. Federal law currently prohibits Qwest from providing
interLATA long distance services in Arizona, Colorado, Idaho, Iowa, Minnesota,
Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah,
Washington, and Wyoming (i.e., voice and data services that originate in such
states, a private line with one end point in those states or toll free service
that terminates in such states) until Qwest has obtained authorization to
provide such services in those states.
3. Sales of Subscribers. Representative agrees to use its best efforts in
having each Subscriber enter into a written agreement with Qwest for the
provision of Services and/or submit a Letter of Authorization or Letter of
Agency ("LOA") (collectively "Authorization") as required by law and Qwest,
Further, Representative shall solicit orders according to the guidelines
reasonably specified from time to time by Qwest.
4. Slamming Prevention. Representative shall provide, at Representative's
expense, a copy of "Qwest's POLICIES AND PROCEDURES REGARDING SLAMMING
PREVENTION", as set forth in Addendum B-2, a "Zero Slamming Pledge" form, as set
forth in Addendum B-3, and an "Acknowledgment" form, as set forth in Addendum
B-4, to all employees, agents or independent distributors involved in the
soliciting of Services. Representative shall have the employee, agent or
independent distributor review the aforementioned policy and return to the
Representative a signed "Acknowledgment' form indicating they understand and
will comply with the Qwest policy. Representative further agrees to produce a
copy of the signed "Acknowledgment" form within forty-eight (48) hours, upon
Qwest's request, for any employee, agent or independent distributor. If
Representative does not comply with the request for providing a signed
"Acknowledgment" form, then Qwest may, at its sole discretion, suspend accepting
LOA's hereunder and/or service order information or terminate this Agreement
immediately.
5. Authorization. Representative shall use commercially reasonable efforts to
safeguard against the submission of improper, inaccurate and invalid
Authorizations. In the event a local telephone company ("LEG") or any regulatory
entity assesses Qwest any charges for improper, inadequate or invalid
Authorizations relating to Services ordered through Representative,
Representative shall promptly reimburse Qwest for all LEG and/or regulatory
charges, plus a Qwest management fee of one-hundred dollars ($100.00) for any
invalid PIC authorization and any other product, assessment or change that is
deemed to lack proper Authorization. Payment for said charges may be withheld
from payable commissions, provided however, no charge or fee shall be payable by
Representative if the charge or fee is the result from an improper format of the
Authorization as approved by Qwest hereunder. Upon the request of Qwest,
Representative will provide to Qwest or the LEG, at Representative's expense,
any documentation required by the LEG regarding the Authorizations for customers
sold hereunder. In addition, Representative shall promptly and in good faith
cooperate with Qwest and all LECs in attempting to resolve all carrier selection
and Authorization disputes.
6. Rates. Representative shall not package any other business activity in
such a manner to cause Subscribers to pay fees in excess of rates of Services
set forth in the Service Schedule.
ADDENDUM B-2 "QWEST'S POLICIES AND PROCEDURES REGARDING SLAMMING
PREVENTION"
ADVISORY TO ALL REPRESENTATIVES SELLING QWEST COMMUNICATION CORPORATION'S
SERVICES:
Unauthorized switching of long distance service, or "slamming," is the number
one problem facing the long distance industry today. Slamming is illegal,
harmful to consumers, and will not be tolerated by Qwest. Qwest offers its
customers the highest quality, reliability and value in the industry. These
attributes are more than enough to attract customers, and a sales representative
should never resort to fraud, deceit or trickery to generate sales.
The following document is designed to educate every person involved in the sale
or marketing of Qwest's long distance services about the causes of unauthorized
switches, Qwest's zero tolerance for such switches, and what can be done to
prevent unauthorized switching. ALL REPRESENTATIVES AND REPRESENTATIVES SELLING
----------------------------------------------
QWEST LONG DISTANCE SERVICE MUST CAREFULLY READ THIS ADVISORY AND MUST READ AND
-------------------------------------------------------------------------------
SIGN THE ZERO SLAMMING PLEDGE ATTACHED TO THIS DOCUMENT. The signed Zero Slam
-----------------------------------------------------------
Pledge(s) must be forwarded to Qwest before any individual begins marketing
services on behalf of Qwest and must be re-affirmed at least every 6 months
thereafter.
A. COMMON CAUSES OF SLAMMING:
- Incorrect telephone number submitted on the Letter of Authorization or
"LOA" means that incorrect telephone number is switched without the customer's
written consent.
- The submitted LOA is illegible and causes the person that keys the order
into the system to enter the wrong names and/or phones number.
- The person who "authorized" switching carriers really didn't have the
authority to make the switch. Sometimes children, roommates, receptionists,
secretaries or assistants authorize a switch to qualify for some sort of premium
or other inducement even though they lack the authority to make decisions on
behalf of the subscriber.
A simple misunderstanding when one partner doesn't tell the other partner or
accounts payable personnel about selecting a new long distance service. This is
especially common when the person authorizing the switch is not the person who
reviews or pays the bills. The xxxx-paying partner or accounts payable
representative sees a new long distance carrier name and thinks something is
wrong. Please ask your customers to inform the appropriate persons within the
household or company about the change in long distance carriers.
- Signing someone up just to "get the sale" or reach a qualification or
commission level. Laziness and "cutting corners" can lead to mistakes,
misunderstandings and improper orders. Sales agents should note that forging the
signature of another person is illegal and grounds for immediate dismissal.
- Signing someone up, without the customer's knowledge, as a result of
spending a lot of time with a decision-maker and assuming that the person would
be satisfied with Qwest service.
B. EFFECTS OF SLAMMING:
- It is illegal and will not be tolerated by Qwest!
- Creates a bad image and adversely affects Qwest's and the Sales
Agent/Representative's reputation.
- Frustrating experience for the subscriber that was slammed.
- Takes time to investigate and correct.
- If we can get information verified (correct), It will save on:
1. Order rejects
2. Returned mail
3. Time to process valid and accurate orders.
- Substantial monetary penalties and costs are assessed against Qwest when
a subscriber is improperly switched. These charges are passed back by Qwest to
the Representative and/or individual sales agent involved, and all commissions
earned on the account will be forfeited. Repeated slamming activity leads to
serious consequences for the agent, including termination of the sales agent
relationship with Qwest.
QWEST AS WELL AS FEDERAL. STATE. AND LOCAL REGULATORY AGENCIES VIEW "SLAMMING11
--------------------------------------------------------------------------------
AS A VERY SERIOUS PROBLEM. THE FCC AND STATES ROUTINELY IMPOSE SIGNIFICANT FINES
--------------------------------------------------------------------------------
ON A PER VIOLATION BASIS.
-----------------------------
C. HOW A REPRESENTATIVE/REPRESENTATIVE DOING FACE TO FACE SALES CAN PROTECT
AGAINST SLAMMING:
- You are strongly encouraged to verify information against each new
customer's actual telephone xxxx for each LOA.
- You must make sure that the person signing the LOA is a person with
authority to make decisions for the telephone line(s) to be switched. It is
essential that the person signing the LOA have authority to change long distance
carriers. Note that children, roommates, receptionists, secretaries and
assistants typically do not have the authority to change long distance carriers
for the subscriber or company. If the person signing the LOA is different from
the person with the actual authority to do so, you should attempt to contact the
other person. While this policy might jeopardize some sales orders, it should
give you a chance to retain sales by demonstrating your concern and
professionalism.
- Where possible in face to face sales situations, verify the person's
identity and signature against a valid, government-issued ID, such as a driver's
license. Note: this procedure is MANDATORY in certain states.
- Take your time. Review the LOA for accuracy and legibility, especially
the telephone number. Confirm the person's telephone number.
- NEVER sign someone else's name on an LOA or any other document!
Forgery will get you fired.
- Don't force a sale that is not there.
D. REPRESENTATIVE'S OBLIGATIONS RELATING TO SLAMMING PREVENTION:
- Representative shall require all sales representatives who will solicit
services on behalf of Qwest to satisfactorily complete Representative's approved
sales training program, which shall include training on compliance with all
applicable federal, state and local laws and regulations. In order to facilitate
the required training, Qwest will provide training to Representative regarding
federal and state prohibitions against slamming, and shall conduct annual
refresher courses for Representative. Only those sales representatives who have
satisfactorily completed the training program and have signed Addendum B-3 (Zero
Slamming Pledge) shall be allowed to submit orders to Qwest for processing.
- Where applicable, Representative shall obtain a valid and accurate
authorization for changing a customer's Primary Interexchange Carrier to Qwest
("PIC Authorization"). Representative must submit a PIC Authorization, in a form
provided or approved by Qwest, for each customer telephone number. Such PIC
Authorization shall comply with (i) all applicable federal, state and local laws
and regulations, and (ii) Qwest's internal procedures. If Representative
submits customer order information electronically to Qwest, Representative will,
within forty-eight (48) hours of Qwest's request, produce sufficient evidence of
the PIC Authorization. Representative shall promptly and in good faith cooperate
with Qwest, the local exchange carrier, and the applicable governmental body in
attempting to resolve all PIC Authorization disputes.
- If Qwest, in its sole discretion, determines that any of Representative's
employees, agents, contractors, or other individuals soliciting services on
behalf of Qwest, have forged a subscriber's signature on a LOA or have violated
any applicable federal, state or local laws or regulations, including the FCC's
rules regarding the unauthorized switching of long distance services,
Representative agrees that such individuals shall be subject to prompt
disciplinary action, up to and including termination. At a minimum, such
individuals shall be permanently barred from soliciting services on behalf of
Qwest.
- If the number of Improper PIC Change Orders (defined below) submitted by
Representative during any calendar month exceeds two percent (2%) of the total
number of PIC change orders submitted by Representative during the month, Qwest
will implement remedial measures de-signed to improve Representative's
performance. Notwithstanding anything to the contrary, if the number of Improper
PIC Change Orders submitted by Representative during any of the first three
calendar months of this Agreement exceeds two percent (2%) of the total number
of PIC change orders submitted by Representative during the month, Qwest may
immediately terminate this Agreement without further liability. For purposes of
this paragraph, an order shall be deemed to be an "Improper PIC Change Order"
if, within fourteen (14) days after notice to Qwest of a customer dispute, (1)
Representative cannot produce evidence of an signed LOA and/or a record of third
party verification ('TPV") that complies with Qwest's policies and procedures,
or (2) the LOA or TPV is forged or otherwise fraudulent. Remedial measures
shall, at a minimum, include;
(1) Mandatory retraining by Qwest of Representative's sales personnel, at
Representative's expense, which will focus on proper sales techniques and
methods to reduce rejected customer orders;
(2) Representative's implementation of specific changes mandated by Qwest
designed to reduce the incidence of bad customer orders;
(3) Representative's reaffirmation and re-signing of the Zero Slamming Pledge;
(4) Representative's performance of a self-audit on a monthly or weekly basis
as dictated by Qwest and in accordance with Qwest's policies and procedures;
(5) Charge back of all commissions earned by Representative on Improper PIC
Change Orders plus and additional penalty equal to fifty percent (50%) of the
commissions on each Improper PIC Change Order.
- (For California only) If the number of Improper PIC Change Orders
(defined below) submitted by Representative during any calendar month exceeds
one percent (1%) of the total number of PIC change orders submitted by
Representative during the month, Qwest will place Representative on a ninety
(90) day probationary/retraining period. If the number of Improper PIC Change
Orders submitted by Representative remains at or exceeds one percent (1%) of the
total number of PIC change orders submitted by Representative during any month
after its first ninety (90) day probationary/retraining period, Qwest may
immediately terminate this Agreement without further liability. For purposes of
this paragraph, an order shall be deemed to be an "Improper PIC Change Order"
if, within fourteen (14) days after notice to Qwest of a customer dispute, (1)
Representative cannot produce evidence of an signed LOA and/or a record of third
party verification {'TPV") that complies with Qwest's policies and procedures,
or (2) the LOA or TPV is forged or otherwise fraudulent. Qwest will require
retraining, at Representative's expense, for any Representative whose Improper
PIC Change Orders are above five tenths of a percent (0.5%) for any one (1)
month.
- Third Party Verification Procedures. If required by Qwest, Representative
will follow any and all third party verification procedures that Qwest may
promulgate from time to time, including, but not limited to, instructions for
sending calls to third party verification, directions on adhering to specific
scripts supplied by Qwest, and transmission of both voice and data to third
party verification simultaneously. Further, Representative will submit proof of
adherence to such procedures to Qwest's designated third party verification
provider. Qwest will notify Representative regarding the entity serving as a
third party verification provider for a Telemarketing Program. Such third party
verification provider is subject to change upon notice to Representative
