SALES AGENT AGREEMENT
1. Appointment and Acceptance. Subject to the terms and conditions of this
-----------------------------
Agreement, PAETEC authorizes Agent to serve as a non-exclusive independent
contractor to procure customers for PAETEC's various telecommunications products
and services as described in the attached Schedule A hi the territory identified
hi the attached Schedule D (the 'Territory"). Agent accepts such appointment and
represents to PAETEC that it has all licenses, consents, approvals,
authorizations, qualifications, and/or registrations necessary to lawfully
procure customers for PAETEC in the Territory pursuant to the terms of this
Agreement, and that it is not prohibited in any way from entering into or
performing this Agreement by any other agreement, commitment, law. or
regulation. Agent agrees to use its best efforts to solicit and procure orders
on behalf of PAETEC, and expressly acknowledges that it is granted no right,
privilege, or authority to offer for sale any of PAETEC's products or services
outside of the Territory.
2. Term and Termination.
-----------------------
(a) This Agreement shall commence on the date set forth at the beginning
and shall continue in full force and effect until terminated (i) by either party
on thirty (30) days prior written notice to the other or (ii) as provided below.
(b) If either party breaches any provision of this Agreement, The other
party may give written notice of such breach. If the breach is not cured within
ten (1.0) days of receipt of the notice, the non-breaching party may immediately
terminate this Agreement without liability for such termination.
(c) PAETEC shall have the right to terminate this Agreement immediately
upon written notice to Agent in the event of (i) any misrepresentation made by
Agent to any customer or prospective customer relating to PAETEC's products or
services; (ii) any fraudulent activity on the part of Agent; or (iii) any
violation of Section 5 of this Agreement by Agent.
(d) Upon any termination of this Agreement, Agent shall immediately return
to PAETEC the originals and all copies of any information, documents, and other
materials provided to it by PAETEC.
3. Acceptance of Orders. All orders procured by Agent for PAETEC products and
-----------------------
services shall be subject to the written acceptance of PAETEC in its sole
discretion before such orders shall become final and binding. Agent shall have
no signatory authority to bind PAETEC to any agreement, and PAETEC reserves the
right to reject any order submitted by Agent. Agent shall advise all customers
and prospective, customers of the
4. Pricing/Terms of Service. The prices and terms and conditions of sale of
---------------------------
PAETEC's products and services shall be set by PAETEC. PAETEC expressly reserves
-
the right to change the prices, lams, and conditions of sale, and/or to expand,
reduce, or modify the products and services H offers, at any time without prior
notice to Agent. Agent agrees that it shall not impose any direct or indirect
charge on customers relating to PAETEC's products and services without PAETEC's
prior written consent. Agent further agrees that it will make no warranties or
representations about PAETEC's products and services other than those
specifically authorized by PAETEC.
5. Customers. All customers accepted by PAETEC under this Agreement shah1 be and
----------
shall remain customers of PAETEC with respect to PAETEC services. Agent shall
not terminate, attempt to terminate, or otherwise interfere in any way with
PAETEC's relationship with any such customer without the prior written consent
of PAETEC. If Agent violates this prohibition during the term of this Agreement,
PAETEC may terminate this Agreement pursuant to Section 2(c) above, if Agent
violates this prohibition after this Agreement has been terminated, any
obligation of PAETEC to pay residual commissions to Agent shall immediately and
irrevocably terminate.
(a) Agent shall be paid commissions under the terms and conditions set
forth below and on the attached Schedule A within thirty (30) days following the
month in which customers procured hereunder are invoiced by PAETEC, Commission
payments shall be based on "Net Billed Revenue" (as defined on Schedule A) and
may be accrued until such time as the total payment exceeds $100.00.
(b) Except in cases where this Agreement is terminated by PAETEC in
accordance with Section 2(b) or 2(t), Agent shall be entitled to receive
commissions for products and services provided by PAETEC to customers procured
hereunder for as long as such customers remain customers of PAETEC. In the event
of termination pursuant to Section 2(b) or 2(c), PAETEC shall cease to pay
commissions to Agent as of the date of termination.
(c) A commission report will be provided to Agent with each commission
payment and will (i) reflect those customers procured by Agent for PAETEC during
the term of this Agreement and (ii) reflect Net Billed revenue for such customer
usage for the applicable month.
(d) Agent shall not be entitled to commissions on customer invoices which
remain unpaid for greater than ninety (90) days from the date of the invoice.
Accordingly, PAETEC shall have the right to deduct or offset from Agent's
commission payments on an ongoing basis, and to retain such deductions or
offsets for PAETEC's own account, any commission payments previously made to
Agent relating to invoices which are not paid by the customer within this stated
ninety (90) day period.
(e) The commission percentages set forth in Schedule A are valid only on
standard PAETEC products arid services. Commissions on non-standard products and
services will be determined on a case-by-case basis.
(f) The commission percentages set forth in Schedule A are subject to
change at PAETEC's discretion. Any changes shall not retroactively affect any
obligation incurred prior to the date of such change. PAETEC shall notify Agent
at least ninety (90) days prior to any such change.
(g) Notwithstanding anything to the contrary contained elsewhere in this
Agreement, Agent acknowledges and expressly agrees that the commission
percentages set forth in Schedule A are at the Master Agent level and are based
on commitments from Agent that it will have total xxxxxxxx of at least
$20,000.00 in monthly revenue within six (6) months and $50,000.00 in monthly
revenue within twelve (12) months from the date of this Agreement, If Agent
fails to meet this revenue threshold, PAETEC shall have the right to immediately
and retroactively reduce all of Agent's accounts from the Master Agent
commission percentages to PAETEC's standard agent commission percentages, and to
deduct from nature commission payments due to Agent any and all overpayments
made to Agent based on previous commissions paid to Agent at the Master Agent
level versus the standard agent commission level. If such action is taken by
PAETEC and Agent thereafter exceeds the threshold of $50,000.00 PAETEC will from
that point forward increase Agent's total commission percentages to the Master
Agent level. Commission percentages will not then be reduced from the Master
Agent level unless Agent's total xxxxxxxx drop below $40,000.00 in any given
month.
7. Withholding. Agent shall provide PAETEC with a completed 1RS form W-9
------------
indicative of Agent's tax status. Failure to do so will require PAETEC to
withhold twenty percent (20%) of all commissions exceeding $600.00 in any
calendar year.
8. Independent Contractors. The relationship created by this Agreement shall be
------------------------
that of independent contractor and not of employer and employee or partners. As
independent contractors, the parties shall not have, or hold themselves out as
having, the power or authority to bind or create liability for the other by
their intentional or negligent acts. Agent shall be solely responsible For and
shall pay all its expenses incurred in connection with the performance of its
duties under this Agreement and shall not be entitled to receive any fringe
benefits or other benefits of any kind provided by PAETEC to its employees.
Agent shall be solely responsible for the payment of all taxes (including
estimated taxes) payable with respect to commissions earned by it pursuant to
this Agreement.
9. Employment of Additional Personnel. Agent may hire salesmen or sub-agents to
-----------------------------------
assist Agent in its performance of this Agreement, provided that in so doing
Agent shall act individually and not as agent for PAETEC. In no event shall such
personnel be considered PAETEC employees, nor shall PAETEC be responsible for
their compensation, payroll taxes, withholding, direction or control.
10. Confidentiality. Agent shall keep confidential all information disclosed by
----------------
PAETEC to Agent for purposes of this Agreement. All such information shall
remain the sole and exclusive property of PAETEC, and it may not be directly or
indirectly disseminated to any third party without the prior written consent of
PAETEC.
11. Intellectual Property/Approval of Advertising. Agent agrees that PAETEC is
-----------------------------------------------
the exclusive owner of all trademarks and tradenames relating to the products
and services provided by PAETEC. Agent may use such trademarks and tradenames
only for the purpose of advertising and promoting PAETEC's products and
services, and Agent shall acquire no proprietary or other rights with respect to
such tradenames, trademarks or other intellectual property of PAETEC. All
advertising by Agent regarding PAETEC's products and services is subject to
PAETEC's prior written
approval.
12. Indemnification and Limitation of Liability.
------------------------------------------------
(a) Each party shall indemnify, defend, and hold harmless the other from
and against any and all claims, losses, damages, costs, and expenses (including
reasonable attorney's fees) arising out of or alleged to have been caused by
their respective negligent, willful, or unauthorized acts, omissions, or
misrepresentations.
(b) In no event shall either party be liable to the other or to any
customer procured by Agent for any indirect, special, incidental, or
consequential damages for any reason whatsoever, nor shall PAETEC be liable for
damages in excess of those which could be awarded to a customer of PAETEC under
PAETEC's tariffs.
(c) PAETEC's entire liability for any failure of its products or services
shall be limited to that set forth in its customer contracts or tariffs as filed
from time to time with the appropriate state or federal regulatory agency.
13. Non-Solicitation.
-----------------
(a) With respect to the products and services described on Schedule A,
Agent agrees that, for as long as Agent is entitled to receive commissions
pursuant to this Agreement, Agent shall not (i) solicit in competition with
PAETEC any PAETEC customer, or (ii) induce or attempt to persuade any PAETEC
employee to terminate his or her employment relationship; nor shall Agent cause
or permit its employees and sub-agents to do so.
(b) Except as expressly permitted by this Agreement, Agent shall not,
during the term of this Agreement or at any time following termination of this
Agreement, make use of any list of PAETEC customers or otherwise divulge any
trade secrets or other confidential information of PAETEC.
(c) The following provision shall apply to the interpretation and
enforcement of subparagraphs (a) and (b) above: (i) since other remedies cannot
fully compensate PAETEC for a violation, PAETEC shall be entitled, in addition
to any other remedies or relief available to it, to injunctive relief to prevent
a violation or halt a continuing violation of the covenants set forth in
subparagraphs (a) and (b) above; (ii) if, in any action before a court or agency
empowered to enforce this Agreement, any covenant is found to be unenforceable,
such covenant shall be deemed modified to the extent necessary to make it
enforceable; and (iii) if PAETEC must commence litigation to enforce its rights
under this Section 13, it may also recover its reasonable attorney's fees from
Agent in connection with the litigation.
(d) In the event of a violation by Agent of any of the prohibitions set forth in
subparagraphs (a) and (b) above, PAETEC may immediately and irrevocably
terminate the payment of any and all commissions that may be payable to Agent
hereunder, regardless of whether PAETEC seeks or obtains injunctive relief
pursuant to sub-paragraph 13(c).
Throughout the term of this Agreement, Agent shall maintain the following
minimum amounts of insurance with an insurance carrier having an A.M. Best
rating of "A" or better:
(a) workers' compensation, with employer's liability of $500,000 per
accident, $500,000 per employee, and $500,000 aggregate, with a waiver of
subrogation in favor of PAETEC;
(b) commercial general liability with $1,000,000 per occurrence, and
$1,000,000 general aggregate with PAETEC named as an additional insured; and
(c) Automobile liability for all owned, hired, and non-owned automobiles
with $[,000,000 combined single limit with PAETEC named as an additional
insured.
(a) The rights and obligations of PAETEC under this Agreement shall inure
to the benefit of and shall be binding upon the successors and assigns of
PAETEC.
(b) Agent acknowledges that the services to be rendered by Agent are unique
and personal. Accordingly, Agent may not assign any of its rights under this
Agreement nor delegate any of its duties or obligations under this Agreement
without the prior written consent of PAETEC.
16. Notices. All notices under this Agreement shall be in writing and shall be
--------
given by personal delivery, or by registered or certified mail or overnight
courier, return receipt requested, to the addresses set forth at the beginning
of this Agreement (or another address designated by notice), and shall be deemed
given upon receipt.
17. Modification of Agreement. This Agreement, including its Schedule(s), may
--------------------------
only be amended, modified, or supplemented by a separate written document duly
executed by authorized representatives of both parties.
18. Waiver. No term or provision of this Agreement shall be waived, and no
-------
breach or default excused, unless such waiver or excuse is in writing and signed
by the party to which it is attributed. No consent by a party to, or waiver of,
a breach or default, by the other, whether expressed or implied, shall
constitute a consent to or waiver of any subsequent breach or default.
19. Partial Invalidity. If any provision of this Agreement shall be held to be
--------------------
invalid or unenforceable, the validity or enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, but rather this
Agreement shall be construed as if not containing the invalid or unenforceable
provision. However, if such provision is an essential element of this Agreement,
the parties shall promptly attempt to negotiate a substitute therefore.
20. Governing Law/.Jurisdiction/Venue. The laws of the State of New York shall
-----------------------------------
govern the interpretation, enforcement, and validity of this Agreement. Any
action or proceeding involving this Agreement shall be commenced and maintained
only in the courts of the State of New York. Venue for any action or proceeding
so commenced shall be in Monroe County. Each party agrees to be subject to the
personal jurisdiction of the courts of New York State.
21. Rules of Construction. No rule of construction requiring interpretation
------------------------
against the draftsman shall apply in the interpretation of this Agreement.
22. Survival. Any obligations of the parties relating to monies owed, as well as
---------
any provisions of this Agreement relating to confidentiality, intellectual
property, indemnification, limitation of liability, non-solicitation,
interference with PAETEC's relationship with its customers, and commencement of
legal proceedings shall survive any termination of this Agreement.
23. Entire Agreement. This Agreement, together with the attached Schedule(s),
------------------
represents the entire agreement of the parties with respect to the subject
matter hereof and supersedes all other agreements, written or oral, between the
parties with respect to its subject matter.
The assent of the parties to this Agreement as of the date set forth at the
beginning is established by the following signatures of their duly authorized
representatives.
Agent: Network Installation Corporation
/s/ Xxxxxxx Xxxxxxxx
------------------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxx Xxxxxxxxxxx
------------------------
Xxxx Xxxxxxxxxxx
Schedule B Territory
-------------------
Agent is authorized to solicit orders on behalf of PAETEC anywhere in the
United States where PAETEC is authorized and certified to do business, subject
to the following restrictions:
- Section 3 of this Agreement ("Acceptance of Orders") governs all
solicitation and procurement of orders by Agent.
- Customers must be located in the contiguous forty-eight (48) states and
must be serviced by one of the following RBOC/HJBC companies:
- Verizon - Southwestern Xxxx
- Xxxx South - Frontier
- US West - SNET
- Pacific Telesis - Cincinnati Xxxx
- Ameritech - Sprint United
- Agent may not solicit any of the following on behalf of PAETEC without the
prior written consent of PAETEC:
Information Providers
- Internet Service Providers
Licensed Interexchange Carriers
- Licensed Competitive Local Exchange Carriers Independent Local Exchange
Carriers Local Exchange Carriers Colleges and Universities Government Agencies
Affinity Groups and Associations Residential Customers
