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EXHIBIT 10.54
* 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.
DISTRIBUTOR PROGRAM AGREEMENT
It is agreed on this _________________ day of __________, 19______ by
and between LCI International Telecom Corp. herein after ("LCI"), a Delaware
Corporation with its principal place of business at 0000 Xxxxxxxxx Xxxxx,
Xxxxxx, Xxxx 00000 and Consortium 2000, Inc. ________ hereinafter
(Representative") whose address is 0000 Xxxxxxx Xxxxxxx, Xxxxx 000 Xxxxxx Xxxx,
Xxxxxxxxxx 00000
1. Services LCI appoints Representative as a non-exclusive representative
in the territory set forth in Exhibit A to promote the sale of and
solicit orders for the services defined in Exhibit A ("Services"), all
subject to the terms and conditions of this Agreement. LCI reserves
the right to add to or delete from the Services as may be required
from time to time. Such additions or deletions will be specified in
writing by LCI. Tariffs relating to the Services may be changed by
LCI at its sole discretion.
2. Commission - During the term of this Agreement Representative shall
receive a commission, as defined in Exhibit's B and C (attached), on
"Collected Revenue" for new accounts referred to LCI (excluding
existing LCI account conversions). "Collected Revenue" is defined as
interexchange toll and line charges actually collected by LCI relating
to the Services sold by Representative (excluding taxes, installation
charges and local loops). Commissions set forth in Exhibit's B and C
under "Level J Commissions" shall be payable only during the term of
this Agreement provided that if this Agreement is terminated by LCI
pursuant to Section 11.A., Representative shall receive commissions
set forth in Exhibit B under "Level II Commissions" for any customer
sold by Representative for each month such customer remains with LCI
up to a maximum of twenty-four (24) months following termination of
this Agreement. LCI, at its sole option, may pay commissions based on
billed revenue, however in such event, LCI reserves the right to
compare Collected Revenue to billed revenue and chargeback
Representative the difference in commissions. The last month's
payment of commissions may be withheld by LCI for up to three (3)
months so that a final "true up" may be performed by LCI. LCI
reserves the right to set off from commissions any amount due to LCI
by Representative.
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3. Relationship - The parties agree and understand that Representative is
an independent contractor and there is no employer-employee
relationship, joint venture or agency created hereby. During the term
of this Agreement and for twenty-four (24) months following the
termination of this Agreement, Representative shall not, directly or
indirectly, convert any LCI account to any other interlata
telecommunications carrier. Representative has no authority to act
for, or on behalf of, LCI. Representative is not authorized to incur
any obligation on behalf of LCI or to bind LCI in any manner
whatsoever. Representative will not make any representations of
rates, terms or conditions of the Services that conflict with the
applicable tariffs or information provided by LCI. LCI shall incur no
obligation to employees, contractors or other parties utilized by
Representative in selling services to customers for LCI. Such
individuals shall at all times remain employees, agents or contractors
of Representative. Representative is responsible for all expenses and
obligations incurred it as a result of its efforts to solicit
customers for LCI. Representative shall be responsible for payment of
all taxes due as a result of payments made to Representative by LCI
4. Customer Service - Representative shall not provide customer service
to any customers solicited by Representative, including billing,
collections or repair service. Representative agrees to assist LCI
when, from time to time, LCI requests assistance with collections.
Customers attracted by Representative are customers of LCI and shall
remain customers of LCI after termination of this Agreement.
5. Product Literature and Marketing - LCI shall provide Representative
with quantities of LCI product literature required by Representative
to meet Representative's responsibilities under this Agreement, as
reasonably determined by LCI Representative shall not develop or use
in any other product literature other than that provided by LCI
without the written consent of LCI. LCI shall provide product training
for Representative and employees of Representative as mutually agreed
upon between Representative and LCI.
6. Order Processing, Billing and Collection - LCI shall have the sole
right to accept or reject all orders, to fix the prices of the
Services, the terms and conditions of the Service or other adjustments
and to discontinue offering or selling any service, without liability
to Representative.
7. Confidentiality All information disclosed by either party to the
other pursuant to this
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Agreement. other than such information as may be generally available
to the public or the industry, is and will be disclosed to it in
confidence solely for its use in the conduct of its business. Each
party agrees to keep such information secret and confidential
indefinitely and not to disclose it to any other person or use it
during the term of this Agreement or after its termination except in
carrying out its obligations hereunder or in response to obligations
imposed by tariff or order of a court or regulatory body.
Representative shall not disclose the terms and conditions of this
Agreement to any person or entity without the prior written consent of
LCI.
8. Representations, Warranties and Covenants Representative represents,
warrants and covenants to LCI that as of the date of this Agreement
and continuing for the term of this Agreement that:
A. Representative is a (check one):
(X) Corporation
( ) Partnership
( ) Sole Proprietorship
duly organized, validly existing and in good standing
under the laws of California with a Federal EIN of
00-0000000 and is qualified to do business in the
state of California and has full and unrestricted
power and authority to execute and perform under this
Agreement.
B. Representative has obtained all licenses, permits and
other authorizations necessary to perform its
obligations under this Agreement and shall maintain
same, as required, in full force and effect during
the term of this Agreement. Representative shall
comply with all applicable tariffs and orders of
judicial and regulatory bodies and all local, state
and federal laws.
C. Representative shall not participate in any pyramid
or multilevel marketing system in conjunction with
any person who has an agreement with LCI.
Representative shall 1) prepare and submit any sales
reports reasonably requested by LCI, 2) appoint a
single point or contact for LCI regarding all matters
pertaining to this Agreement, 3) commit no act which
would reflect unfavorably upon LCI and 4) not package
any other business activity in such
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a manner to cause customers to pay fees in excess of
tariff rates to obtain LCI services.
D. Representative shall not solicit any existing LCI
account not originally sold by Representative for
the purposes of selling, upgrading or converting such
account to LCI service. Representative shall not
solicit any existing LCI account for the purposes of
converting such LCI account to a competitor of LCI.
9. Insurance - Representative shall secure and maintain Worker's
Compensation, Comprehensive General Liability and Automobile Insurance
in sufficient amounts to comply with law and to cover its respective
obligations under this Agreement. Upon request, each party shall
furnish insurance certificates as evidence of such coverage.
10. Trademarks and Trade Names - Representative shall sell the services
under the trademarks and trade names only as approved in writing in
advance by LCI. Representative agrees to comply with any standards
for usage of such trademarks and trade names issued or to be issued by
LCI from time to time. Representative shall not use in its business
or trade or corporate name the name "LCI" or any name of a service
provided by LCI, or the LCI symbol, nor shall it use any trademark or
service xxxx of LCI or symbol related to LCI without the prior,
express written consent of LCI, unless advance provision to do so is
made in separate agreement between the parties.
11. Term of Agreement and Termination
A. The initial term of this agreement shall be (3) years, and the
Agreement shall be renewed thereafter automatically on a year-
to-year basis unless sooner terminated as hereinafter
provided, subject to and upon the terms and conditions herein
specified. LCI may terminate this Agreement at any time
during a renewal term upon giving the Representative 30 days
prior written notice.
B. LCI may cancel this Agreement upon written notice to
Representative in the event of:
1. Representative's failure to attain the
monthly Revenue volume commitment level
specified in Exhibit B or C.
2. Breach of any provision of this Agreement by
Representative, or if
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Representative defaults, fails to perform its
obligations or participates or engages in any
activity relating to fraud against LCI
3. Insolvency, bankruptcy, receivership or
dissolution of Representative.
4. Representative's assignment of the Agreement
without LCI's prior written consent.
5. Representative receives, directly or
indirectly, from any person or entity
associated with LCI (including but not
limited to employees of LCI or its
affiliates, but excluding LCI assigned
distributor support personnel) sales leads or
information relating to potential customers
of LCI, and actively pursues these
prospective customers.
No commission shall be payable following any termination
pursuant to this Section 11.B.
12. Indemnification - Representative shall indemnify, defend and hold LCI
(and all officers, directors, employees, agents and affiliates
thereof) harmless from and against any and all claims, demands,
actions, losses, damages, assessments, charges, liabilities, costs and
expenses (including without limitation interest, penalties, and
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:
A) Representative's default under any provision herein, breach of
any warranty or representation herein, or failure in any way
to perform any obligation hereunder; or
B) Bodily injury of damage to property (including death) to any
person (including without limitation any employee of either
party and any third person), and any damage to or loss of use
of any property, arising our of or in any way relating to the
services or pursuant, directly or indirectly, to this
Agreement.
Representative shall hold harmless and indemnify LCI from and against
any claim, cause of action, judgment, liability or expense relating to
or arising out of the acts or omissions of Representative's employees,
contractors and agents.
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13. Cure - Either party may terminate this Agreement and preserve all
available remedies if the other party fails to perform any term,
condition or covenant of this Agreement and such failure continues for
a period of thirty (30) days after receipt of written notice of said
failure; provided however, the foregoing cure right shall not apply to
any term, condition or covenant that specifically excludes a cure
right hereunder.
14. Liability - In no event shall either party be liable for special,
indirect, incidental or consequential damages, including loss of
profits, arising from the relationship or the conduct of business
contemplated herein. Without limiting the previous sentence, in no
event shall LCI's liability in connection with this Agreement exceed
one month's average commission paid to Representative.
15. Miscellaneous - Representative shall not assign this Agreement or any
interest therein without LCI's prior written consent. The terms of
this Agreement shall be governed by and construed in accordance with
the laws of Ohio. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and assigns. Provisions of this Agreement identified by
the context to survive the termination or expiration of this Agreement
shall so survive. This Agreement (including any Exhibits hereto)
constitutes the entire Agreement between the parties hereto with
respect to the subject matter hereof, and it supersedes all prior oral
or written agreements, commitments or understandings, with respect to
the matters provided for herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
LCI International Telecom Corp. Consortium 2000, Inc,
By: /s/ XXXXXXXX XXXXX By: /s/ ILLEGIBLE
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Xxxxxxxx Xxxxx
Title: Sr. Vice President, Sales Title: EVP
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Date:11-3-94 Date: 01-09-95
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EXHIBIT A
I. Representative Non-Exclusive territory shall be Continental U.S.
II. Services: America Plus. America WATS, Audio Teleconferencing, Campus
Talk, Dedicated Nationwide 800. Easyline, Integrity, Macroline,
Nationwide 800, Operator Services. Point-To-Point Products, WAL,
WorldCard, & Simply Business.
EXHIBIT B
I. Commission Schedule/Payments
A. Level I Commissions - Commissions for all Services except
Operator Services and Campus Talk shall be paid to
Representative based upon total monthly Collected Revenue as
follows:
1. * of monthly Collected Revenue for a
period of twelve (12) months from the date of the
Agreement or the percentage shown in 2.2 below based
on monthly Collected Revenue, whichever is higher.
2. In the event Representative fails to meet the Monthly
Collected Revenue Thresholds in II. below anytime
during the first twelve (12) months from the date of
the Agreement, commissions will be pay at *
of Monthly Collected Revenue instead of *
and LCI shall have the right to charge Representative
the difference in commissions between * and *
from the original date of this Agreement.
2.1 In the event Representative meets all of the Monthly
Collected Revenue Thresholds in II. below, the
following commissions shall be paid to Representative
beginning the thirteenth (13th) month from the date
of this Agreement and throughout the remaining term
of this Agreement and any subsequent renewal periods,
except in the event of termination, in which event
commission in C. below shall apply.
Monthly Collected Revenue Category Percentage
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$ 0 - 199,999 *
200,000 - 499,999 *
500,000 + *
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*Note: These percentages are applied incrementally, that is
only to the Collected Revenue in the applicable
category.
2.2 In the event Representative fails to meet any one of
the Monthly Collected Revenue Thresholds in II.
below, the following commissions shall be paid to
Representative beginning the thirteenth (13th) month
from the date of this Agreement and throughout the
remaining term of this Agreement and any subsequent
renewal periods, except in the event of termination
in which event commission in C. below shall apply.
Monthly Collected Revenue Category Percentage
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0 - 49,999 *
50,000 - 149,999 *
150,000 - 249,999 *
250,000 - 499,999 *
500,000 + *
*Note: These percentages are applied incrementally, that is
only to the Collected Revenue in the applicable
category.
B. Commissions for Operator Services and Campus Talk shall
be * of Collected Revenue and shall be allowed
at Level I commissions only.
C. Level II Commission - Commissions for all Services except
Operator Services and Campus Talk shall be paid to
Representative based upon total monthly Collected Revenue
after termination of this Agreement pursuant to Section 11.A.
of * for twenty-four (24) months.
D. Commission payments for each customer xxxx will be paid by LCI
approximately forty-five (45) days from the end of the month
in which such xxxx cycle ends.
II. Revenue Volume Commitment - Representative shall generate the
following monthly Collected Revenue within the time frames indicated:
Monthly Collected Revenue Thresholds Time Period from Date of Agreement
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$ 4 Months
8 Months
* 12 Months
24 Months
36 Months
and monthly increases of * per month for each renewal term.
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III. Major and Commercial Accounts Restrictions: Representative shall not
sell LCI services or the services of any other provider of long
distance services offering services similar to LCI services, to LCI
Major Accounts, as designated by LCI within sixty (60) days from the
date of this Agreement and subsequently, within thirty (30) days
notice that an account has been designated a Major Account by LCI.
LCI International Telecom Corp. ("LCI") Consortium 200, Inc.
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Representative
By: /s/ XXXXXXXX XXXXX By: /s/ ILLEGIBLE
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Xxxxxxxx Xxxxx
Title: Sr. Vice President, Sales Title: EVP
Date:12-23-94 Date:12/31/94
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AMENDMENT NO. 1
To the Distributor Program Agreement dated January 9,1995
It is agreed on this 31st day of January, 1996, by and between LiTel
Telecommunications Corporation d/b/a LCI International, hereinafter ("LCI") and
Consortium 2000, hereinafter ("Representative") that the following changes be
made to the above referenced Distributor Program Agreement.
1. Exhibit B.II. is modified to read as follows:
Revenue volume commitment - Representative shall generate the
following monthly collected revenue within the time frames indicated:
Monthly Collected Revenue Thresholds Time Period From Date of Agreement
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12 months (12/95)
18 months (6/96)
* 24 months (12/96)
30 months (6/97)
36 months (12/97)
It is expressly understood by LCI and Representative that all terms of the
Distributor Program Agreement shall remain binding upon the parties hereto and
that no terms of this Distributor Program Agreement, except those set forth
above, are changed by this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date written below.
LCI International Telecom Corp. Consortium 2000
By: /s/ XXXXXXXX XXXXX By: /s/ ILLEGIBLE
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Xxxxxxxx Xxxxx
Title: Senior Vice President, Sales Title: EVP
Date: 1-31-96 Date:1/7/96
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AMENDMENT NO. 2
To the Distributor Program Agreement dated January 9, 1995
It is agreed on this 21st day of March, 1996, by and between LiTel
Telecommunications Corporation d/b/a LCI International, hereinafter ("LCI") and
Consortium 2000, hereinafter ("Representative") that the following changes be
made to the above referenced Distributor Program Agreement.
1. Exhibit B.II. is modified to read as follows:
Revenue volume commitment - Representative shall generate the
following monthly collected revenue within the time frames indicated:
Monthly Collected Revenue Thresholds Time period From Date of Agreement
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14 months (3/96)
* 18 months (7/96)
24 months (1/97)
30 months (7/97)
36 months (1/98)
It is expressly understood by LCI and Representative that all terms of the
Distributor Program Agreement shall remain binding upon the parties hereto and
that no terms of this Distributor Program Agreement, except those set forth
above, are changed by this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date written below.
LCI International Telecom Corp. Consortium 2000
By: /s/ XXXXXXXX XXXXX BY: /s/ ILLEGIBLE
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Xxxxxxxx Xxxxx
Title: Senior Vice President, Sales Title: Executive Vice President
Date: 3-26-96 Date: 3/13/96
