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EXHIBIT 10.87
INDEPENDENT CONTRACTOR SALES AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into this __ day of May, 1995, by
and between SPRINT COMMUNICATIONS COMPANY L.P. ("Sprint") and XXXXXXX XXXX &
ASSOCIATES, INC. ("Contractor"). Sprint and Contractor are "Parties" hereto.
In consideration of the mutual promises contained herein, the Parties agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings set forth below. Capitalized terms appearing in these
definitions are defined in this paragraph.
"A-STATUS SALE" means an order for Service obtained by Contractor from
a Sales Prospect and submitted to Sprint that (i) is accepted into
Sprint's CIS system, (ii) is not rejected because it duplicates an
account already in CIS, (iii) is not pending a credit check, and (iv)
is not an Unauthorized Sale.
"CUSTOMER" means a Sprint customer subscribing to Service as a result
of a sale made by Contractor under this Agreement. Customer shall not
include any individual or entity excluded in Subsection 3 of the
attached Exhibit A.
"MONTHLY ACTIVATED ORDERED REVENUE" means the estimated value of
A-Status Sales in a given calendar month. The estimated value of each
A-Status Sale shall be as set forth in Subsection 1(a)(2) of the
attached Exhibit B.
"PERFORMANCE STANDARDS" means the performance standards set forth in
Subsection 2 of the attached Exhibit B that must be met as provided in
Subparagraph 3.6 herein.
"REVENUE DOLLARS" means the total net invoiced revenue posted in the
Compensation Accounting System. Revenue Dollars include: (i) charges
for domestic, international, operator services and travel card; (ii)
charges for equipment, access, installation, ISC (mileage),
maintenance, tele-feature and minimum usage charges; (iii) surcharges
for directory assistance, operator services, and travel surcharge,
(iv) adjustments for bulk service agreements and special pricing
arrangements; and (v) discounts and credit adjustments issued by
Sprint. Revenue Dollars do not include taxes. The measurement month
for Revenue Dollars is a non-calendar period during which time one
posting of each billing cycle is made to the billing system. A
billing cycle is a non-calendar period of approximately 30 days in
which customer traffic is captured and invoiced.
"SALES AREA" means the non-exclusive but restricted sales territory as
set forth in attached Exhibit A.
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"SALES PROSPECT" means a prospective Sprint Customer to which
contractor will direct telemarketing efforts hereunder.
"SALES REPRESENTATIVE" means a telemarketing sales representative
employed by Contractor to perform telemarketing services hereunder.
"SERVICE" means Sprint's Tariffed interLATA, and intraLATA where
authorized, commercial telecommunications network service as described
in attached Exhibit A, as modified from time to time at Sprint's
discretion.
"TARIFF" means Sprint's tariffs relating to Service as filed with the
Federal Communications Commission for interstate or international
Service (including Tariff revisions made from time to time) and/or
such tariffs (and revisions) filed with state regulatory commissions
for intrastate Service.
"TELEMARKETING FACILITY" means a telemarketing facility at a
particular geographic location used by Contractor to perform
telemarketing services hereunder.
"UNAUTHORIZED SALE" means a Sales Representative's reported sale of
Service that Sprint, in Sprint's sole discretion, determines is
unauthorized by the Sales Prospect. Unauthorized Sale shall include,
without limitation, a sale invalidated by the Sales Prospect, a LEC or
regulatory commission.
2. RELATIONSHIP OF PARTIES. Contractor shall function hereunder as an
independent contractor with no authority to act on behalf of Sprint except as
expressly provided herein. Sprint shall incur no responsibility or obligation
to Sales Representatives or other employees or agents of Contractor used to
perform services under this Agreement. Such persons shall be employees or
agents of contractor for all purposes.
3. CONTRACTOR TELEMARKETING.
3.1. Sales Representatives shall be trained only by individuals
trained and certified by Sprint.
3.2. Sprint will provide Contractor, at Sprint's expense, with what
Sprint determines to be a sufficient quantity of promotional
materials. Contractor shall not use any other promotional material,
sales scripts, or advertising without obtaining Sprint's prior written
consent.
3.3. Sprint will provide Contractor with names and telephone
numbers of Sales Prospects in quantities reasonably sufficient to
enable Contractor to meet its sales goals. All lists of Sales
Prospects shall remain the exclusive property of Sprint.
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3.4 Sprint will not request Contractor to perform any service that
violates any applicable law or government regulation.
3.5. Contractor shall telemarket Sprint Service, at Sprint's
Tariffed rates, not of Tariffed promotional offerings, to Sales
Prospects located in the Sales Area. Contractor shall suspend all
sales activities in any geographic portion of the Sales Area upon ten
days written notice from Sprint.
3.6. Contractor shall meet the Performance Specifications specified
in Subsection 2 of the attached Exhibit B.
3.7. Contractor shall use Sprint's telecommunications services
exclusively in performing its obligations hereunder, and shall
promptly pay Sprint all amounts that Contractor is billed for use of
such service.
3.8. Contractor shall not use Telemarketing Facilities to sell
service on behalf of any other interexchange carrier. Sales
Representatives shall not work on any other interexchange carrier
project for Contractor during the term of this Agreement.
3.9. Sprint will provide a reasonably quantity of logo items for
incentives for Contractor.
4. QUALITY CONTROL.
4.1. Sprint may visit and inspect Telemarketing Facilities at any
time during the term of this Agreement.
4.2. Contractor shall provide suitable office space at a
Telemarketing Facility for use by Sprint personnel during visits
thereto.
4.3. Sprint may remotely monitor the activities of Sales
Representatives hereunder. Contractor will provide monitoring
capability via telephone from anywhere in the United States. Sprint
will comply with remote monitoring operating procedures required by
Contractor, provided such procedures are reasonable and provided to
Sprint in writing.
4.4. Sprint may audit all documentation pertaining to the
monitoring of Sales Representative and resolution of customer and/or
regulatory complaints.
5. CONTRACTOR EXPENSES. Except as provided herein, or otherwise agreed
to by the Parties in writing, Contractor is solely responsible for all expenses
and obligations that it incurs in performing under this Agreement.
6. PAYMENT FOR CONTRACTOR SERVICES. Sprint shall pay Contractor for
telemarketing hours in accordance with the schedule in the attached Exhibit B.
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7. CONTRACTOR REPRESENTATIONS AND WARRANTIES.
7.1. Contractor shall conduct its business and represent Sprint in
a professional, ethical, legal and businesslike manner, and shall
commit no act which would reflect unfavorably on either Party.
7.2. Contractor shall not sponsor or participate in any pyramid or
multilevel marketing system with respect to Sprint Service.
7.3. Contractor shall require all of Sales Representatives,
employees and agents to comply with the terms and conditions or this
Agreement.
7.4. Contractor shall not package any of its business activities in
such a manner that Sprint customers must pay any Contractor-imposed
fee, start-up charge or minimum associated with a Service.
7.5. Contractor shall comply with all laws and government
regulations including, but not limited to, those relating to
telemarketing. Customer shall make no unauthorized representations
concerning Sprint Service to Customers or Sales Prospects.
7.6. Sprint shall notify Contractor of any complaint from a
Customer, Sales Prospect, or regulatory agency. Contractor shall
resolve or respond to such complaints within one work day after
receipt of Sprint's notification.
7.7. Contractor shall comply with all operational procedures set
forth in attached Exhibit C.
8. UNAUTHORIZED SALES. Contractor shall reimburse Sprint, up to $100 per
Unauthorized Sale, for the amount of any PIC dispute fee imposed by a LEC
because of an Unauthorized Sale. This reimbursement shall be accomplished, at
Sprint's option, by (i) Sprint deducting the reimbursement from any amount owed
by Sprint to Contractor for services provided hereunder, or (ii) by submitting
an invoice to Contractor which shall be paid within thirty days.
9. PROVISION OF SERVICE TO CUSTOMERS. Sprint shall service Customers in
accordance with Sprint's standard practices, including billing and collection
for Services. Customers shall be customers of Sprint, and shall remain
customers of Sprint after termination of this Agreement.
10. CONFIDENTIALITY; TRADE SECRETS. Neither Party shall disclose the
following to a third party without the other Party's written consent, except as
required by law: (i) the terms and/or conditions of this Agreement; or (ii) any
confidential information
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or trade secret of the other Party. Contractor shall not sell, release or
disclose the identity (including name, address and telephone number) of
Customers and Sales Prospects to any third party.
11. TRADEMARKS; SERVICE MARKS; TRADENAMES. Contractor shall sell service
under the tradenames, service marks and trademarks (the "Marks") indicated by
Sprint. Contractor will not display or use any of Sprint's Marks other than in
connection with the sale of Service hereunder. Absent Sprint's prior written
consent, Contractor shall not use any part of a Sprint Xxxx as part of its own
name, service xxxx or tradename. Sprint Marks are proprietary to Sprint and
nothing in this Agreement constitutes a general license for their use. Upon
termination of this Agreement, all rights to use Sprint's Marks shall expire
and Contractor shall discontinue the use thereof.
12. TAXES. Contractor shall be liable for all taxes due as a result of
payments made by Sprint to Contractor hereunder. Contractor shall indemnify
Sprint for any attorney's fees and court costs incurred by Sprint in defense of
any claim or demand for such taxes.
13. TERM OF AGREEMENT; TERMINATION.
13.1. Except as otherwise provided herein, the initial term of this
Agreement (the "Initial Term") shall commence on the date first above
written and end nine months thereafter. After the Initial Term, the
Agreement shall remain in full force and effect until otherwise
terminated as provided in this paragraph.
13.2. Either Party may terminate this Agreement at any time after
the Initial Term upon ninety days written notice to the other Party.
13.3. sprint may terminate this Agreement upon ten days written
notice to Contractor as follows:
a) If Contractor's productivity for any month is 65% or
less of the Performance Standards specified in Exhibit B.
b) If Sprint notifies Contractor in writing that
Contractor's productivity for any month is between 65 and 90%
of Performance Standards, and Contractor fails to meet 90% of
Performance Standards within thirty days following such
notice.
c) If, during any month, Contractor submits to Sprint
Unauthorized Sales in excess of 6% of total sales.
d) If Contractor becomes insolvent, or is the subject
of any bankruptcy proceeding, an arrangement with
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creditors, a corporate reorganization, receivership or
dissolution.
e) If Contractor attempts to assign this Agreement, or
any interest or right therein, without Sprint's prior written
consent.
f) If Contractor undergoes any significant change in
ownership or management without Sprint's prior written
consent.
g) If a judgment is entered against Contractor which, in
Sprint's opinion, adversely affects the interests of either
Party.
13.4. Either Party may terminate this Agreement upon ten days
written notice to the other Party if the other Party breaches a
material provision herein, or in the event of any material change in
state or federal law or governmental regulation that renders
performance hereunder impractical.
14. INSURANCE. Contractor shall secure and maintain the following
insurance in amounts that are the greater of (i) the amounts set forth below or
(ii) such other amounts required by law;
14.1. Worker's Compensation insurance as required by law;
14.2. Comprehensive general liability insurance, including
contractual liability insurance with limit of liability not less than
$1,000,000 per occurrence, combined single limit, for bodily injury
and third party property damage. The policy shall include Sprint as
an additional insured.
14.3. Automobile liability insurance covering use or all owned,
non-owned and hired vehicles with limit of liability not less than
$1,000,000 per occurrence, combined single limit, for bodily injury
and property damage. The policy shall include Sprint as an additional
insured.
Contractor shall furnish certificates to Sprint on the effective date of this
Agreement evidencing the above coverage.
15. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR LOSS OF PROFITS, ARISING FROM
THE CONDUCT OF SUCH PARTY HEREUNDER.
16. INDEMNIFICATION. Each Party shall indemnify, defend and hold harmless
the other from and against any and all liabilities, costs, damages and expenses
(including reasonable attorney's fees) resulting from the indemnifying Party's
(or its employees' or agents') actions hereunder. This indemnification shall
include, without limitation, breach of this Agreement, misrepresentation of
Sprint Service, and unauthorized or illegal acts of the indemnifying Party, its
employees or agents.
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17. ARBITRATION. Any dispute arising out of or relating to this Agreement
will be finally settled by arbitration in accordance with the rules of the
American Arbitration Association. The arbitration will be governed by the
United States Arbitration Act, 9 U.S.C. Sec. 1, et. seq., and judgment upon the
award rendered by the arbitrator(s) may be entered by any court with
jurisdiction. The arbitration will be held in the Kansas City, MO metropolitan
area.
18. ASSIGNMENT. Neither Party may assign this Agreement without the
written consent of the other Party, which consent shall not be unreasonably
withheld.
l9. NOTICE. All notices given hereunder shall be sufficient if in writing
and delivered in person to the Party to be notified, or sent to the Party to be
notified, addressed as set forth below, postage prepaid, by registered or
certified mail:
If to Sprint: Sprint Communications Company
0000 Xxxx Xxxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Vice President Law -
Sales & Marketing
If to Contractor: Xxxxxxx Xxxx & Associates
000 0xx Xxx. XX
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx
20. SEVERABILITY. If a provision of this Agreement shall for any reason
be held invalid or unenforceable, the remaining provisions hereof shall remain
in full force and effect.
21. GOVERNING LAW. The terms of this Agreement shall be construed and
interpreted under the laws of the State of Kansas.
22. EXCUSABLE DELAY. Neither Party shall be liable for failure to perform
its obligations hereunder due to causes beyond its reasonable control,
including without limitation, acts of God, law or government regulation,
national emergency, or labor difficulty.
23. RULES OF CONSTRUCTION. No rule of construction requiring
interpretation against the draftsman shall apply in the interpretation of this
Agreement.
24. ENTIRE AGREEMENT; WAIVER; MODIFICATION. This Agreement, and the
Exhibits hereto, contain the full understanding of the Parties and supersede
any prior agreement between such Parties. No waiver, alteration or
modification of any provision hereof shall be binding unless in writing and
signed by a duly authorized officer of each Party.
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IN WITNESS WHEREOF, the Parties have executed this agreement effective the date
first above written.
XXXXXXX XXXX & ASSOCIATES, INC. SPRINT COMMUNICATIONS COMPANY L.P.
By: By:
------------------------------------------ ---------------------------------------------
Title: Title:
--------------------------------------- ------------------------------------------
Date: Date:
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EXHIBIT A
SERVICE AND SERVICE AREA
1. SERVICE:
a) Business Sense Inbound
b) Business Sense Outbound (w/ card and mobile phone)
c) Sprint Sense (w/ Business Sense only)
d) Clarity Inbound
e) Clarity Outbound (w/ card and mobile phone)
f) The Most for Business Inbound
g) The Most for Business Outbound (w/ card and mobile phone)
h) Sprint Plus
i) Sprint World
2. NON-EXCLUSIVE SALES AREA.
The continental United States
3. CUSTOMER RESTRICTIONS.
Contractor shall not solicit to become Customers, nor shall Contractor
be compensated for any sale, or attempted sale to: (i) National
Accounts as designated by Sprint from time to time; and (ii) Sprint's
installed, existing Customer base.
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EXHIBIT B
PAYMENT SCHEDULE AND PERFORMANCE STANDARDS
1. PAYMENT SCHEDULE:
a) Sprint shall pay Contractor each month the following:
1) $ 15.00 per hour of training received by a Sales
Representative, and
2) $3.15 times the Monthly Activated Ordered Revenue
produced by Contractor; provided, however, that such rate
shall not be less than than $27.125 per hour, nor greater than
$40.00 per hour, of Sales Representative time devoted to sales
under this Agreement. Monthly Activated Ordered Revenue shall
be calculated by multiplying the number of accounts activated
in the given month by the par value of $50. Sprint may, at
its option, change the amount paid to Contractor per activated
account based on the actual value of activated accounts
submitted to Sprint by Contractor.
b) There shall be no minimum billable Sales Representative hours
or training hours during the term of the Agreement. Maximum billable
Sales Representative hours and training hours shall be as follows:
Maximum Maximum
Agreement Sales Rep Training
Months Hours Hours
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37 to 46 14,400 376
c) Contractor shall submit a complete and accurate invoice to
Sprint within five (5) working days after: (i) the 15th of each month;
and (ii) the last working day of each month. Sprint shall pay
Contractor within thirty (30) days after receipt of an approved
invoice. Sprint shall notify Contractor of invoice approval status
within two (2) business days of receipt of such invoice.
d) Sprint shall reconcile the amount of Monthly Activated
Ordered Revenue used to determine the amount paid Contractor in
Subsection 1(a)(2) of this Exhibit against the actual amount of
revenue billed and reported in Sprint's Compensation Accounting
System. Sprint shall reconcile the amount of Monthly Activated
Ordered Revenue against the revenue generated during the measurement
month specified in the following schedule (the "Measurement Month"):
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Activation Measurement
Month Month
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January March
February April
March May
April June
May July
June August
July September
August October
September November
October December
November January
December February
Sprint will notify Contractor of the results of the
reconciliation of Monthly Activated Ordered Revenue to the
actual revenue no later than 30 days after the second invoice
for a given sale month is posted to the Sprint Compensation
Accounting System.
If it is determined as a result of this reconciliation that
Sprint overpaid Contractor for Monthly Activated Ordered
Revenue, Contractor shall refund Sprint the amount of such
overpayment within 30 days from the date Contractor receives
written notice of the reconciliation. If it is determined as a
result of the reconciliation that Sprint underpaid Contractor
for Monthly Activated Ordered Revenue, Sprint shall pay
Contractor the amount of such under payment, up to a maximum
of $125,000, within 30 days from the date Contractor receives
written notice of the reconciliation.
2. PERFORMANCE STANDARDS.
a) Contractor shall complete 0.213 net A-Status Sales per Sales
Representative hour billed to Sprint.
b) The average monthly Revenue Dollars generated during the
"Measurement Period" defined below shall be no less than 90% of the
Revenue Dollars generated during the Measurement Month. The
Measurement Period means the three-month period that begins with the
Measurement Month and includes the two months immediately following
the Measurement Month. Exceptions to this performance standard may be
granted based on anomalies created by the compensation and/or billing
systems.
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EXHBIT C
OPERATIONAL PROCEDURES
1. Telemarketing by powerdialing is limited to 8:00 AM to 5:00 PM local
time of destination of call, Monday through Friday. No calls will be made on
legal holidays.
2. Sprint will provide a reasonably sufficient quantity of leads on 1600
BPI, 9 track magnetic tape.
3. Contractor will monitor each Sales Representative at least once per
shift.
4. Contractor will provide sales supervisors, at its expense, with a
ratio of no less than 1 supervisor for every 12 Sales Representative.
Additionally, Contractor will provide sales managers to supervise the sales
supervisors at a ratio of no less than 1 sales manager for every 3 sales
supervisors. These ratios must be maintained on an average basis. (It may be
acceptable to have ratios lower than specified for short periods of time.)
5. Contractor shall provide the following written reports to Sprint:
a) A daily sales report in a format specified by Sprint.
b) Weekly and monthly sales forecasts and planned sales
activities reports.
c) Customer complaints and disposition reports as required by
Sprint.
6. Sprint will establish the order in which Contractor will contact Sales
Prospects supplied by Sprint. Contractor may target Sales Prospects by time
zone.
7. Contractor will provide Sprint a monthly, program-specific
reconciliation of work done on Sales Prospects no later than the fifth workday
after the end of the month in which the work is done.
8. Contractor will direct all residential Sales Prospects to the Sprint
residential inbound operation at 0-000-000-0000. Contractor will send all
commercial Sales Prospects to Sprint via the Sprint vendor manager.
9. Contractor will transmit all sales to Sprint nightly, and within 24
hours.
10. Within 24 hours following a request for information made by a
customer, Contractor will notify Sprint of the customer's name, address,
telephone number and type of information requested.
11. Sprint will attempt to verify all sales transmitted by
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Contractor by making at least 5 verification attempts within 72 hours. If
Sprint cannot contact the customer within 72 hours the sale will be unverified.
Contractor will indicate in the "note field" of the sale transmission any
unusual circumstances that may affect Sprint's ability to verify an account
within 72 hours.
12. Contractor shall provide each Sales Representative at least 36 hours of
Sprint Service training before the representative is allowed to telemarket such
Service.
13. Contractor shall provide at least 4 hours of continuing training for
each Sales Representative who has been selling Sprint service for at least one
full month. Contractor will comply with Sprint's direction regarding the
content of said training. Training will only be provided by trainers certified
by Sprint.
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