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EXHIBIT 10.55
MARKETING SERVICES AGREEMENT
* AN ASTERISK in this document indicates that the portion of the text so marked
is confidential and has been omitted and filed separately with the Securities
and Exchange Commission.
THIS MARKETING SERVICES AGREEMENT (the "Agreement") is made as of the
15th day of August, 1994, between New Enterprise Wholesale Telephone Services,
Limited Partnership, a Delaware limited partnership ("NEWTS") and Consortium
2000, Inc., a California corporation ("Contractor").
W I T N E S S E T H:
WHEREAS, NEWTS is engaged in the business of marketing certain
telecommunications services and products provided by GE Capital Communication
Services Corporation, a Georgia corporation ("GECCS") through its GE Exchange
Program (the "Program") and desires to develop and increase its residential
customer base through mass marketing promotional techniques;
WHEREAS, Contractor is engaged in the business of developing and
conducting mass marketing promotions for the acquisition of residential long
distance subscribers through point of sale contest displays and has a national
network of independent dealer/contractors to place and properly service point
of sale displays through its Millennium Telecom program; and
WHEREAS, NEWTS desires to engage Contractor to develop and conduct a
mass marketing promotion for the acquisition of residential long distance
subscribers through point of sale contest displays utilizing its Millennium
Telecom program in connection with the Program, and Contractor is willing to
undertake to perform such services for NEWTS in accordance with the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other valuable consideration, the adequacy and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Services, Term and Termination
a. During the term of this Agreement, Contractor agrees to
develop and conduct a mass marketing promotion for the acquisition of
residential long distance customers through point of sale contest displays and
perform other associated services as may be agreed between the parties (the
"Services") for NEWTS in accordance with the terms and conditions contained
herein and in Exhibit A attached hereto.
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b. This Agreement shall commence on the date hereof and, unless
sooner terminated as otherwise provided herein, shall continue for a period of
one (1) year (the "Initial Term"). Following the expiration of the Initial
Term, NEWTS shall have the option to renew this Agreement for additional
successive terms of one (1) year each. NEWTS shall exercise such option by
giving written notice thereof to Contractor at least sixty (60) days before the
expiration of the then current term.
c. NEWTS shall have the right to terminate this Agreement with or
without cause at any time upon ninety (90) days' written notice to Contractor,
except that notice is not required and this Agreement shall terminate
immediately upon the occurrence of one of the following:
i. the institution of any proceeding, voluntary or
involuntary, in bankruptcy, insolvency, dissolution or liquidation by
or against Contractor, other than an involuntary proceeding which is
dismissed within sixty (60) days of filing;
ii. any assignment of Contractor's assets for the benefit
of creditors;
iii. placement of the assets of Contractor in the hands of
a trustee or receiver, unless the receivership or trust is
dissolved within sixty (60) days thereafter;
iv. any transfer of substantially all of Contractor's
business or assets to a third party; or
v. a breach by Contractor of any material provision of
this Agreement or failure by Contractor to comply with all applicable
laws and regulations in connection with the performance of the
Services, subject to Contractor's right to cure under Section 3.d.
During such ninety (90) day period, NEWTS and Contractor will continue
to fulfill their obligations hereunder, except that Contractor will not
commence new promotions for GECCS service without NEWTS' express written
authorization.
d. Upon expiration or termination of this Agreement without
cause, NEWTS' sole obligation shall be to pay commissions to Contractor on the
sales made by Contractor prior to the date of expiration or termination in
accordance with paragraph (c) of Exhibit B attached hereto; provided, however,
that in the event of termination as a result of causes listed in subparagraphs
(i) through (v) of Section 1.c. above or for other material breach of this
Agreement by Contractor (including, without limitation, Contractor's failure to
comply with any of its duties and obligations under Section 2 below), NEWTS
shall have the right to set-off against future commission payments the amount
of any damages or losses incurred by NEWTS as a result of such breach; and
provided further, however, that such future commissions shall be subject to
NEWTS' right to receive repayment of Advances (as defined in Section 4(a)
below) pursuant to Section 4(c) below. In the event that Contractor has not
repaid any such Advances
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following the expiration of Contractor's right to receive commissions
hereunder, NEWTS shall send Contractor an invoice for the amount of such
unrepaid Advances, which Contractor shall pay to NEWTS within seven (7) days of
the date of such invoice.
e. Upon the termination of this Agreement, Contractor immediately
shall deliver to NEWTS (or, with NEWTS' permission, destroy) all reports,
memoranda and other materials provided to Contractor by NEWTS and all reports,
memoranda and other materials developed or prepared by Contractor pursuant to
the terms of this Agreement, including all LOAs and other documentation
obtained pursuant to Section 4.e. hereof, and all copies thereof.
2. Contractor's Duties and Obligations.
a. Contractor shall diligently, in a professional manner and in
good faith, perform the Services and other obligations hereunder.
Notwithstanding the foregoing, Contractor shall perform the Services to NEWTS'
reasonable satisfaction in accordance with GECCS' standards of ethics,
professionalism and integrity with respect to customer service and quality
assurance, as set forth in the guide to GE policies. Integrity: The Spirit &
Letter of Our Commitment, which may be modified by GECCS from time to time and
which NEWTS shall provide to Contractor from time to time.
b. Contractor shall not, directly or indirectly, misrepresent in
any manner the relationship between GECCS and its telecommunications carriers,
and agrees to take appropriate disciplinary action with respect to any employee
or agent of Contractor who does misrepresent such relationship.
c. Contractor will designate a Contractor representative
(currently Xxxxx Xxxxx) to serve as a liaison between Contractor and NEWTS'
liaison (currently Xxxxxxx Xxxxx), and to whom Contractor's personnel may
address questions regarding the Services and the Program.
d. Contractor will receive and screen Letters of Agency ("LOAs"),
arrange for keypunching to electronic media and provide data processing
services to screen LOAs for duals, duplicates, invalid NPA/NXX combinations,
address errors and other readily discernible defects. Contractor will transmit
completed data files to NEWTS each week and ship physical LOA documents,
together with all accompanying order information required under Section 4(e)
below to NEWTS weekly. Upon receipt of the data file, NEWTS will check the
data file containing the orders for technical integrity and proper processing
to arrive at the count for which the Advances will be paid. In addition, at
such times during the term of this Agreement as NEWTS and Contractor mutually
agree, Contractor shall provide NEWTS with written status reports containing
information about sales status, process improvement, actions and plans, issues
requiring resolution by NEWTS and any other information related to the status
of Contractor's performance of the Services that NEWTS requests.
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e. Contractor shall provide NEWTS and its associates with
reasonable access to Contractor's management and employees and facilities
during normal business hours so that NEWTS can conduct reviews of Contractor's
operations for the purpose of monitoring Contractor's performance of the
Services hereunder and identifying areas for enhancement and/or improvement.
f. Contractor represents that it is familiar with and is
currently in compliance with all laws and regulations applicable to its
performance of the Services for NEWTS hereunder, and covenants that it will
comply with all applicable laws and regulations, including without limitation
laws and regulations governing sweepstakes, in the performance of the Services
throughout the term of this Agreement. Contractor shall indemnify and hold
NEWTS, GECCS, their respective officers, directors, agents, employees and their
successors and assigns harmless from and against all liability, loss or damages
(including attorneys' fees) arising from Contractor's failure to comply with
all applicable laws and regulations in connection with its performance of the
Services hereunder.
g. Immediately following the execution of this Agreement by both
parties, Contractor shall produce marketing materials and present them to NEWTS
for approval. NEWTS will respond to a request for approval within ten (10)
business days. Following receipt of NEWTS' approval, Contractor shall promptly
distribute the NEWTS approved marketing materials in sufficient quantities to
service its point of sale display pieces. Contractor will ensure that its
personnel at all times use current promotional and instructional materials
relating to the Program, and will not use and, in a timely manner, will dispose
of such materials which are obsolete.
h. Contractor hereby acknowledges that this Agreement and the
terms and conditions contained herein are Confidential Information (as defined
in Section 7(a) below) subject to the provisions contained in Section 7 below.
Contractor hereby agrees that it will not disclose, directly or indirectly, any
terms of this Agreement, including, without limitation, the financial terms
contained herein, to any third party (including other NEWTS agents or
representatives) without the prior written consent of NEWTS. Contractor
further agrees that it shall take appropriate disciplinary action with respect
to any of its employees or agents who makes a disclosure in violation of this
Section 2(i), which in no event shall be less than the disciplinary action that
Contractor would take for any such disclosure of its own confidential and
proprietary information.
i. Contractor shall not disseminate, by any means or media, any
materials (including, but not limited to, materials bearing the GE Exchange
name, marks or logos) in connection with the rendition of the Services that
have not been furnished or previously approved by NEWTS and GECCS. All uses by
Contractor of the GE Exchange name, marks or logos, whether on tangible
materials or in communications in connection with the rendition of the Services
hereunder, must conform to the terms of this Agreement and, where applicable,
to GE's
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Trademark & Graphic System Practices for Sales & Service Businesses, which may
be modified by General Electric Company from time to time and which NEWTS or
GECCS shall furnish to Contractor.
j. Subject to Section 2(k) hereof, NEWTS will assume full
responsibility for all billing costs, direct and indirect, for services
provided to end users by reason of orders submitted by Contractor.
k. Contractor commissions will be reduced to the extent that
billing costs exceed $0.013 times the number of minutes of billed usage in any
month. Contractor commissions will also be reduced to the extent of any end
user charges that become more than 120 days past due during the period for
which such commissions are paid, provided that Contractor will be reimbursed to
the extent such sums are subsequently paid by the end user.
l. Contractor will provide the Services described herein to NEWTS
on a nonexclusive basis until and including September 30, 1994. Beginning
October 1, 1994, Contractor will not provide residential services substantially
similar to those described herein to any other telecommunications service
provider, provided that (i) Contractor may continue to provide such services to
such service provider(s) under agreements existing as of the date of this
Agreement; (ii) Contractor may provide such services to any such service
provider in any state in which GECCS ceases to provide telecommunication
service; or (iii) Contractor may provide such services to one or more other
such service provider(s) if, during any ninety (90) day period, the average
provisioning time for orders (defined as the interval between Contractor's
submission of a clean order for service for an ANI and the cutover of that ANI
to GECCS) exceeds thirty (30) days.
m. It is understood and agreed between the parties that GECCS may
be obligated to file changes to certain of its federal and/or state tariffs,
and such changes may be required to take effect, prior to offering residential
service in the affected jurisdictions. In the event that GECCS has not
obtained the effectiveness of such changes in one or more jurisdiction(s) within
one hundred and eighty (180) days after the execution of this Agreement,
Contractor will be released from its obligation of exclusivity in such
jurisdiction(s), as described in Section 2.m hereof. NEWTS will provide
Contractor with a list of the jurisdictions within which GECCS is authorized to
provide residential service, and will update such list from time to time.
Contractor will not at any time conduct any promotion within any jurisdiction
in which GECCS is not then authorized to provide residential service, and
Contractor will not submit to GECCS any order for service to a telephone number
within such jurisdiction.
n. Contractor shall be responsible for, and bear the cost of,
duplication of all materials described in Section 3(b) hereof in quantities
sufficient to enable it to perform the Services.
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3. NEWTS' Duties and Obligations.
a. NEWTS will provide the sales Program to Contractor for sale by
Contractor through its point of sale display mass marketing promotion;
provided, however, that NEWTS hereby reserves the right to change the pricing,
offerings and terms and conditions of sale for the Program in accordance with
law, provided that NEWTS will cause GECCS not to modify its Federal
Communications Commission ("FCC") tariff for one (1) year from the date of this
Agreement without Contractor's consent in a manner that prevents customers from
being solicited by Contractor at the interstate rates set forth in Exhibit C
hereto. At any time, Contractor may recommend a change in such rates to NEWTS
or GECCS. NEWTS will provide intrastate service (subject to Section 2.a.
hereof) and international service at its regular tariffed rates.
b. During the term of this Agreement, NEWTS will provide
Contractor with faxables, including, without limitation, letters of agency
("LOAs"), rates and special promotional materials, and current promotional and
instructional materials relating to the Program. All faxables will be subject
to GECCS approval. Upon such approval, Contractor will produce such faxables
in print runs of up to one million (1,000,000). Contractor will notify GECCS
at least thirty (30) days prior to each new print run, and GECCS will make any
changes it desires to such faxables within fifteen (15) days of such
notification. GECCS may also make changes to faxables at other times for
substantial regulatory or legal reasons, and Contractor will arrange for the
prompt production of such changed faxables. In such event, Contractor will
destroy all faxables not conforming to such changes at the time such changes
are made.
c. NEWTS shall be responsible for order fulfillment with respect
to properly completed orders submitted by Contractor.
d. If NEWTS determines that Contractor has failed to perform any
of its duties or obligations under this Agreement, NEWTS shall notify
Contractor of such deficiency and provide Contractor with the opportunity to
cure such deficiency within thirty (30) days before terminating this Agreement
for cause under this Section 1(c) above.
e. NEWTS will provide Contractor with all revenue and
provisioning status reports within a reasonable time after receiving them from
the underlying carrier.
f. NEWTS represents that is familiar with and is currently in
compliance with all laws and regulations applicable to its performance of its
obligations hereunder, and covenants that it will comply with all applicable
laws and regulations in the performance of its obligations throughout the term
of this Agreement. NEWTS shall indemnify and hold Contractor, its officers,
directors, agents. employees and their successors and assigns harmless from and
against all liability, loss or damages (including attorneys' fees) arising from
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NEWTS' failure to comply with all applicable laws and regulations in connection
with its performance of its obligations hereunder.
g. NEWTS hereby acknowledges that this Agreement and the terms
and conditions contained herein are Confidential Information (as defined in
Section 7(a) below) subject to the provisions contained in Section 7 below.
NEWTS hereby agrees that it will not disclose, directly or indirectly, any
terms of this Agreement, including, without limitation, the financial terms
contained herein, to any third party without the prior written consent of
Contractor. NEWTS further agrees that it shall take appropriate disciplinary
action with respect to any of its employees or agents who makes a disclosure in
violation of this Section 2(I), which in no event shall be less than the
disciplinary action that NEWTS would take for any such disclosure of its own
confidential and proprietary information.
4. Payments and Commissions
a. During the term of this Agreement, NEWTS shall pay Contractor
an advance (an "Advance") against commissions earned under Section 4(c) on each
sale satisfying the criteria set forth in Section 4(e) below. Each such
Advance shall equal the amount set forth in paragraph (a) of Exhibit B;
provided, however, that any Advance payable hereunder shall be subject to
Contractor's satisfaction of mutually agreed upon performance-based criteria.
Each Advance shall bear interest at a rate of two percent (2%) over the prime
rate published daily in The Wall Street Journal from the date the Advance is
paid by NEWTS until the amount of the Advance plus interest thereon has been
repaid by Contractor. NEWTS hereby reserves the right to adjust the Advance
amount set forth in paragraph (a) of Exhibit B upon thirty (30) days' written
notice to Contractor (i) in the event of customer attrition that is determined
by NEWTS to be excessive in comparison with typical residential service
attrition in the industry; provided that NEWTS will provide reasonable
substantiation for such determination upon request, or (ii) for other reasons
related to Contractor's performance of this Agreement that would have a
material adverse impact on the financial position of NEWTS, provided that NEWTS
provides evidence of such adverse impact to Contractor, or (iii) in the event
that fifteen percent (15 %) or more of the orders submitted to NEWTS hereunder
in any month are incomplete, or (iv) for other substantial reasons.
b. Contractor shall send to NEWTS a statement of the sales made
each week, in a form reasonably acceptable to NEWTS. NEWTS shall pay Advances
on each such statement in accordance with Section 4(a) above for all sales
satisfying the criteria specified in Section 4(e) below by wire transfer to
Contractor's designated bank account by 2:00 p.m. on the fifth (5th) business
day after the date on which NEWTS receives such statement.
C. For each sale to a customer for which NEWTS paid Contractor an
Advance under Section 4(a) above, Contractor shall earn a commission (the
"Actual Commission") each month that such Customer continues to be a customer
of the Program. Each such Actual Commission
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shall equal the rate set forth in paragraph (b) of Exhibit B multiplied by the
actual monthly long distance charges billed to such customer and collected
during such month (for purposes of this Agreement "long distance charges" shall
mean the net charge to the customer for interstate, intrastate and
international calls only). NEWTS hereby reserves the right to adjust the
Actual Commission rate prospectively upon thirty (30) days' written notice to
Contractor (i) for reasons related to Contractor's performance of this
Agreement that would have a material adverse impact on the financial position
of NEWTS, provided that NEWTS provides evidence of such adverse impact to
Contractor, or (ii) for other substantial reasons.
d. The aggregate amount of all Actual Commissions earned by
Contractor in any week under Section 4(c) above shall be paid on a monthly
basis thirty (30) days after GECCS, or NEWTS on GECC's behalf, receives payment
of customers' bills for long distance charges; provided, however, that NEWTS
shall deduct from each such monthly payment, from and after the third (3rd)
complete month of this Agreement, as a repayment of Advances plus interest
thereon an amount equal to the lesser of (i) the aggregate amount of all
Advances made to such date and not theretofore repaid, or (ii) the aggregate
amount of the Actual Commissions earned during such month.
e. For purposes of this Section 4, and notwithstanding anything
contained herein to the contrary, Contractor shall be entitled to receive
Advances under Section 4(a) and Actual Commissions only on sales for which it
has obtained the following information, properly completed: enrollment form
(LOA), order form and, if applicable, the following (which Contractor shall
obtain from each customer within forty-eight (48) hours after receipt of such
customer's LOA): RESPORG form, coordinated order form, term contract, federal
excise tax exemption form, state tax exemption form and such other forms as may
be required by the FCC, the long distance carrier and federal or state law.
Contractor will submit such orders to NEWTS in such electronic or other form as
the parties mutually agree. NEWTS may, in its discretion, adjust the foregoing
order provisioning requirements to facilitate new technology and procedures,
including a distributed order entry process and third party verification, and
shall provide Contractor with advance written notice of any such adjustments.
In the event NEWTS implements a distributed order entry process which requires
Contractor to perform additional administrative duties with respect to orders
received from customers, NEWTS shall pay Contractor an additional two dollars
and fifty cents ($2.50) for each sale for which Contractor receives an Advance
processed by Contractor during the initial eight month period commencing on the
date NEWTS implements such process with Contractor. Each LOA received by
Contractor hereunder for each new customer shall be recorded as a sale. LOAs
and associated order information that are rejected by NEWTS for lack of
creditworthiness before being provisioned by the long distance carrier will not
be credited for sale or commission. In the event that NEWTS rejects any LOA
and associated order information as incomplete, Contractor shall correct such
order within seventy-two (72) hours of its receipt of notice thereof from NEWTS
and such order will not be credited for sale or commission until properly
completed. Further, Contractor shall correct any errors or omissions
identified by
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the applicable local exchange carrier within seventy-two (72) hours of
Contractor's receipt of notice thereof.
f. At any time during the term of this Agreement, Contractor may,
upon thirty (30) days' written notice to NEWTS, elect to cease receiving
Advances under Section 4(a) hereof. Contractor's compensation for orders
submitted following the expiration of the thirty (30) day notice period will be
limited to Actual Commissions as set forth in Section 4(c) above, subject to
the deduction described in Section 4(d) until all outstanding Advances have
been repaid.
g. The fees and other amounts described in Sections 4(a), 4(c)
and 4(e) above shall be the sole and exclusive payment to Contractor for its
Services hereunder, and Contractor shall not be entitled to any separate or
additional payment or reimbursement for any expenses incurred in connection
with performing the Services, nor shall Contractor be entitled to any payment
or reimbursement whatsoever in the event NEWTS terminates Contractor's services
for any reason, except as provided in Section 1.d. hereof.
h. Contractor shall maintain complete and accurate records, in a
form acceptable to NEWTS, of Contractor's activities relating to the
performance of the Services and other obligations hereunder and of all data
necessary to calculate the Advances and Actual Commissions due under this
Section 4. Such records shall include, but shall not be limited to, sales order
forms and LOAs for all sales under the Program. Contractor shall retain such
records during the term of this Agreement, and turn them over to NEWTS pursuant
to section 1.e. upon termination or expiration. Upon request by NEWTS,
Contractor will produce one or more signed LOA(s) and/or other applicable
documentation as described in Section 4(e) above, (in electronic or physical
form) within two (2) business days of such request.
5. Personnel
a. Contractor shall be solely responsible for hiring or
subcontracting all personnel necessary to perform the Services hereunder.
Such personnel shall be deemed to be the responsibility of Contractor only, and
shall not for any purposes be considered employees or agents of NEWTS or GECCS.
Contractor assumes full responsibility for the actions of such personnel while
performing the Services hereunder, and shall be solely and exclusively
responsible for their supervision, daily direction and control, payment of
salary (including withholding of income taxes and social security), workers'
compensation, disability benefits and other benefits to the extent that
such supervision, direction, control and payments are required by law.
Contractor's supervisors and management shall resolve all performance and
personnel matters of such personnel.
b. Contractor shall make reasonable inquiries of its employees,
agents and subcontractors regarding any past employment with NEWTS, GECCS or
any associated GE
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entity, and shall notify NEWTS of any such former NEWTS, GECCS or associated GE
entity employee prior to assigning such employee. agent or subcontractor to
perform Services under this Agreement. In its discretion, NEWTS may request
that Contractor not make any such assignment.
c. Without limiting the generality of Section 5(a) above,
Contractor agrees to take appropriate preventative steps to ensure that its
personnel shall not engage in inappropriate conduct while performing the
Services.
d. Notwithstanding the provisions of Section 5(a) above, NEWTS
may, in its sole discretion, request Contractor to reassign any employee or
agent of Contractor performing Services under this Agreement and Contractor
shall implement such request to the extent permissible under applicable local
laws. Any such request by NEWTS shall be in writing and accompanied by a
statement of reasons for such request for reassignment.
e. Contractor promptly shall notify NEWTS of any impending work
stoppage, strike or other similar personnel-related interference with
Contractor's performance of the Services hereunder. In the event of such a
work stoppage, NEWTS may, at its sole discretion and without incurring any
liability to Contractor, acquire Services from third parties for the duration
of the interference.
f. NEWTS may, in its sole discretion, require written
documentation of completion of specific training for Contractor's personnel to
ensure that GECCS' standards of professionalism, integrity and ethics are
maintained in accordance with Section 2(a) above.
6. Ownership of Information and Materials
a. All information and materials provided by NEWTS or GECCS to
Contractor pursuant to the terms of the Agreement shall remain the sole and
exclusive property of NEWTS or GECCS, as the case may be.
b. All reports, memoranda or other materials in written or
tangible form, including machine readable form, prepared by Contractor or its
employees or agents pursuant to this Agreement and furnished to NEWTS by
Contractor hereunder, including, without limitation, LOAs and sales records of
interfaces with NEWTS customers, shall become the sole and exclusive property
of NEWTS. NEWTS shall have the right, in its discretion, to seek and obtain in
its own name copyrights, registrations and other protection which may be
available with respect to such materials, and Contractor shall provide such
assistance as may be required to obtain such protection.
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7 Confidentiality
a. Contractor and NEWTS acknowledge that, in connection with the
performance of their respective obligations hereunder, each of them will
receive and have access to certain confidential and proprietary information of
one another and GECCS (the "Confidential Information"). Accordingly, during
the term of this Agreement and for a period of two (2) years after the
expiration or termination of this Agreement, Contractor and NEWTS shall each
take the same measures to maintain the Confidential Information of each other
and GECCS in strict confidence and secrecy as each party takes with respect to
its own confidential and proprietary information, and shall not disclose the
Confidential Information, or any portion thereof, to any third party without
the prior written consent of the other party (and, in the case of GECCS
Confidential Information, the written consent of GECCS).
b. Contractor and NEWTS shall disclose Confidential Information
only to their personnel who have a need to know such information in connection
with the performance of their respective obligations hereunder and who have
obligated themselves by written agreement in a form satisfactory to the other
party to hold the Confidential Information in trust and confidence and
otherwise comply with the terms of this Section 7. Neither party shall make any
use of the Confidential Information of the other party or GECCS except in the
performance of its obligations to such party hereunder.
c. The provisions of Section 7(a) shall not apply or shall cease
to apply to Confidential Information which:
i. is lawfully known to the receiving party prior to its
disclosure by the disclosing party;
ii. is or becomes generally available to the public
through no fault of the receiving party or its employees or agents
and without breach of this Agreement;
iii. is received by the receiving party from a third party
who is rightfully in possession of such information without the
obligation to maintain its confidentiality;
iv. is independently developed by an employee or agent of
the receiving party who did not have direct or indirect access to the
information; or
v. is required to be released by judicial order or
government law.
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8. Relationship of the Parties
a. Contractor's relationship to NEWTS shall be that of an
independent contractor only; nothing in this Agreement shall be construed to
create the relationship of employment, agency, partnership, joint venture or
otherwise.
b. Nothing in this Agreement shall be construed to constitute
Contractor and NEWTS as joint employers or NEWTS as a special employer of any
employee or agent of Contractor.
9. Indemnification
a. Contractor shall indemnify and hold NEWTS and GECCS, their
successors and assigns harmless from and against all liability, loss, damages
or injury and reasonable costs and expenses (including reasonable attorneys'
fees and costs of any suit related thereto), suffered or incurred by NEWTS or
GECCS, or either of their successors or assigns, arising out of any error,
omission, misconduct or actual negligence of Contractor, its agents,
subcontractors or employees, including without limitation all costs of
defending against, and fines, forfeitures, or damage claims paid by NEWTS or
GECCS as a result of, claims that a customer has been switched to GECCS service
without proper authorization.
b. NEWTS shall indemnify and hold Contractor, its successors and
assigns harmless from and against all liability, loss, damages or injury and
reasonable costs and expenses (including reasonable attorneys' fees and costs
of any suit related thereto), suffered or incurred by Contractor, its
successors or assigns, arising out of any error, omission, misconduct or actual
negligence of NEWTS, its agents, subcontractors or employees; provided that in
no event shall NEWTS be liable to Contractor for any act or omission of an
underlying common carrier or any other circumstance beyond NEWTS' control.
c. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEITHER PARTY
SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, ARISING FORM
THE RELATIONSHIP OR THE CONDUCT OF BUSINESS CONTEMPLATED HEREIN.
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10. Dispute Resolution
a. The parties recognize that during the term of this Agreement,
various conflicts or disputes (a "Dispute") may arise between the parties
relating to the terms and conditions of this Agreement or from an alleged tort.
In the event that such a Dispute arises, the parties, through their appropriate
personnel, shall attempt amicably to resolve the Dispute in an expeditious
manner, utilizing the escalation procedure described in Section 10(b) below or
any other method of alternate dispute resolution mutually agreeable to the
parties.
b. In the event the parties' personnel shall be unable to resolve
any Dispute within thirty (30) days, then the Officer of each party identified
below shall designate a representative for such party (collectively, the
"Representatives"), who promptly shall be notified of the Dispute by their
respective personnel. The Representatives shall then attempt to resolve the
Dispute. If the Representatives are unable to resolve the Dispute within
fifteen (15) days, either party may (but is not required to) refer the Dispute
to its respective Officer hereinafter identified: Contractor's President -
Xxxxx Xxxxxxxxx and NEWTS' President - Xxxxxxx X. Xxxxx, who shall have fifteen
(15) days from the date of the referral in which to attempt to resolve the
Dispute.
C. In the event any Dispute shall not be resolved between the
parties by use of the procedures and within the timetable described in Section
10(b) above, the Dispute shall be resolved through binding arbitration in
accordance with Sections 10(d) and (e) below.
d. Any arbitration of a Dispute shall be conducted in accordance
with the United States Arbitration Act (Title 9, U.S. Code), notwithstanding
any choice of law provision in this Agreement, and under the Commercial
Arbitration Rules of the American Arbitration Association ("AAA"). The
arbitration shall be conducted in the City of Atlanta, Georgia. The arbitrator
shall give effect to statutes of limitations in determining any Dispute. Any
Dispute concerning whether an issue is arbitrable shall be determined by the
arbitrator. The decision of the arbitrator shall be final and binding upon the
parties. Judgment upon the arbitration award may be entered in any court
having jurisdiction. In rendering any decision or making findings of fact the
arbitrator shall apply the express intentions of the parties set forth in this
Agreement and the laws of the State of Georgia, including, without limitation,
any applicable statutes, regulations and binding judicial decisions, as such
would be applied by the courts of the State of Georgia and the United States
District Court for the Northern District of Georgia.
e. In connection with any arbitration having an amount in
controversy of less than $1,000,000.00, such arbitration shall be conducted by
a single arbitrator, chosen by the AAA. The AAA shall be guided by any
applicable rules with respect to the choosing of an arbitrator for arbitration
conducted pursuant to the Commercial Arbitration Rules of the AAA, and, in
addition thereto, (i) the AAA shall attempt to appoint an arbitrator having a
technical background, where available, consistent with the technical issues and
procedures which are the subject matter of this Agreement, and (ii) the AAA
shall prefer an arbitrator who is an attorney in good standing and
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licensed to practice law in the State of Georgia. In connection with any
arbitration where the amount in controversy is equal to or exceeds
$1,000,000.00, the arbitration shall be conducted by a panel of three (3) or
more arbitrators chosen by the AAA. giving preference to those factors
identified in subsections (i) and (ii) in the foregoing sentence.
f. Both parties hereby agree to waive their right to a trial by
jury in any Dispute arising out of this Agreement.
11. Compliance with Laws
Each party shall, at its own expense, comply with all federal, state
and local laws and regulations relating to its duties, obligations and
performance under this Agreement and shall procure all licenses and pay all
fees and other charges required thereby.
12. Miscellaneous
a. This Agreement constitutes the entire agreement among of the
parties hereto and supersedes and cancels any prior agreements,
representations, warranties, or communications, whether oral or written, among
the parties hereto relating to the transactions contemplated hereby or the
subject matter herein. Neither this Agreement nor any provisions hereof may be
changed, waived, discharged, or terminated orally, but only by an agreement in
writing signed by the party against whom or which the enforcement of such
change, waiver, discharge or termination is sought.
b. Any failure on the part of any party hereto to comply with any
of its obligations, agreements or conditions hereunder may be waived by any
other party to whom such compliance is owed. A waiver under this Section 12(b)
must be in writing signed by the party to whom compliance is owed, as specified
in Section 12(a) above. No waiver of any provision of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver.
c. No remedy referred to in this Agreement is intended to be
exclusive, but each shall be cumulative and in addition to any other remedy
referred to herein or otherwise available at law or in equity.
d. In the event that any provision of this Agreement or any word,
phrase, clause, sentence or other portion thereof should be held to be
unenforceable or invalid for any reason, such provision or portion thereof
shall be modified or deleted in such a manner so as to make this Agreement, as
modified, legal and enforceable to the fullest extent permitted under
applicable laws.
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e. This Agreement shall be binding on the parties hereto and
their respective successors and assigns, except that neither party shall assign
its rights or delegate or subcontract its duties or obligations under this
Agreement without the other party's prior written consent.
f. This Agreement shall be governed by, construed under and
interpreted in accordance with the laws of the State of Georgia.
g. All notices, requests, demands or other communications
required or permitted to be given or made hereunder shall be in writing and
delivered personally or sent by pre-paid, first class, certified or registered
mail, return receipt requested, or by facsimile transmission, to the intended
recipient thereof at its address or facsimile number set out below. Any such
notice, demand or communication shall be deemed to have been duly given
immediately (if given or made by confirmed facsimile), or five (5) days after
mailing, and in proving same it shall be sufficient to show that the envelope
containing the same was duly addressed, stamped and posted, or that receipt of
a facsimile was confirmed by the recipient. The addresses and facsimile
numbers of the parties for purposes of this Agreement are:
NEWTS: 000 Xxxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
With a Copy To: Xxxxxxx X. Xxxxxxx
GE Exchange
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Contractor: Consortium 2000
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Any party may change the address or facsimile number to which notices,
requests, demands or other communications to such party shall be delivered or
mailed by giving notice thereof to the other parties hereto in the manner
provided herein.
h. Nothing in this Agreement grants either party any rights to
use any trademarks, service marks or trade names of the other party, directly
or indirectly, in connection with any product, service, promotion or
publication without prior written approval of such other party.
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i. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers thereunto duly authorized the day and year first
written above.
NEW ENTERPRISE WHOLESALE TELEPHONE
SERVICES, LIMITED PARTNERSHIP
By: GE Capital Communication Services
Wholesale Corporation
Its sole general partner
By:
------------------------------
Title:
---------------------------
CONSORTIUM 2000, INC.
By:
------------------------------
Title:
---------------------------
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EXHIBIT A
STANDARDS FOR PERFORMING THE SERVICES
1. Contractor shall ensure that its employees and agents:
(a) promote and sell GECCS' telecommunications services and
products in conformity with NEWTS' and GECCS' policies,
practices and procedures;
(b) maintain an extremely professional approach at all times when
communicating with prospects or customers;
(c) verify, maintain, and expand (through data entry) the existing
data base of customers or prospects based on contact with each
customer or prospect; and
(d) maintain the data base for the production of weekly and
monthly sales reports, as well as for various follow-up cover
letters.
2. Contractor shall ensure ongoing communication and documentation of all
the results of Contractor's efforts to ensure proper control,
direction and measurement.
3. Contractor shall develop and implement training and quality assurance
programs for all employees and agents to ensure that they adhere to
the terms and conditions of the Agreement and to NEWTS' and GECCS'
standards of ethics, professionalism and integrity with respect to
customer service and quality assurance.
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EXHIBIT B
COMMISSIONS
Subject to the conditions set forth in the Agreement, NEWTS will pay
Advances and Actual Commissions to Contractor as follows:
(a) Advances. The Advance payable under Section 4(a) of the
Agreement for each qualifying sale shall equal _____*________
(b) Actual Commissions. Actual Commissions under Section 4(c) of
the Agreement shall be calculated at a rate of ______*_________
(c) Commissions Upon Expiration or Termination. In the event of
expiration or termination of the Agreement, NEWTS will continue to pay Actual
Commissions to Contractor under Section 4(c) of the Agreement so long as
customers generated by Contractor continue to generate long distance charges
under the Program for which NEWTS receives payment in excess of ___*_______ per
month.
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EXHIBIT C
RETAIL RATES
INITIAL INTERSTATE RETAIL RATE TO C-2000'S END-USER
(OR SUBSCRIBER/CUSTOMER)
================================================================================
DAY EVENING NIGHT
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
0-55 * * *
--------------------------------------------------------------------------------
56-292 * * *
--------------------------------------------------------------------------------
293-430 * * *
--------------------------------------------------------------------------------
431-925 * * *
--------------------------------------------------------------------------------
926-1910 * * *
--------------------------------------------------------------------------------
1911-3000 * * *
--------------------------------------------------------------------------------
3001-4250 * * *
--------------------------------------------------------------------------------
4251-5750 * * *
================================================================================
All calls will be billed in full one-minute increments to the end-users.
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