MPARTNER INDEPENDENT AGENT AGREEMENT
This Mpartner Independent Agent Agreement ("Agreement") is made and entered into
by and between Mpower Communications Corp., a Nevada Corporation, ("Mpower")
with its principal place of business atJ75 ▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, and Network Installations Corp. ("Agent"), whose address
ARTICLE I TERM OF AGREEMENT
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1.01. The term of this Agreement is two (2) years beginning on the date last
executed by both parties except at the end of the first six (6) months of this
Agreement, Mpower may terminate this Agreement if Agent has failed to satisfy
the performance criteria provided in Exhibit A.03 attached hereto. This
Agreement shall automatically renew for a period of one year unless either party
provides a written request to terminate within sixty (60) days of the original
expiration date.
ARTICLE II AUTHORIZATION
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2.01. Subject to the terms and conditions of this Agreement, Mpower hereby
authorizes Agent and Agent accepts its appointment as a non-exclusive Agent to
solicit and procure customers for Mpower's products and services ("Products and
Services") as set forth in Exhibit A.01 attached hereto. This authorization does
not allow Agent to act on behalf of Mpower or to bind Mpower in any way
whatsoever, exclusive of the specific scope of this Agreement. All customers
procured hereunder are, and shall at all times remain, Mpower customers.
2.02. Agent is, and will remain throughout the term of this Agreement, an
Independent Agent and separate entity from Mpower. This authorization does not
constitute or create a joint venture, partnership, employee relationship or
franchise. Both parties agree that Agent, together with its employees, agents,
sub -contractors and affiliates, is not and will not become a legal Agent,
except to the limited extent authorized in this Agreement, and will not become
an employee of Mpower while this Agreement is in effect, and is not entitled to
the rights or benefits afforded to Mpower's employees, including disability or
unemployment insurance, medical insurance, sick leave or any other employment
benefit. Agent is responsible for providing, at its own expense, disability,
unemployment, and other insurance, training, permits, and licenses for Agent and
for Agent's employees and subcontractors. Agent shall, upon request, present
evidence to Mpower of all appropriate business licenses and adequate general
liability insurance.
PAYMENT OF INCOME TAXES
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2.03. Agent is responsible for paying when due all income taxes, including
estimated taxes, incurred as a result of the compensation paid by Mpower to
Agent for services under this Agreement Agent agrees to indemnify Mpower for any
claims, costs, losses, fees, penalties, interest, attorneys fees or damages
suffered by Mpower resulting from Agent's failure to comply with this provision.
USE OF EMPLOYEES OR SUBCONTRACTORS
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2.04. Agent may, at its own expense, direction and supervision, use any employee
it deems necessary to perform the services anticipated by this Agreement Agent
warrants that it shall inform all employees so used, of the applicable terms and
provisions of this Agreement as well as the proper representation of Mpower's
services. Agent agrees that it shall hold full responsibility for its employee's
performance of this Agreement, and that the performance of itself and its
employees shall be considered as one performance hereunder.
2.05. Agent may, at its own expense, direction, and supervision, use any
sub-contractor it deems necessary to perform the services anticipated by this
Agreement. All sub-contractors must agree to be independently bound by the
applicable terms and provisions of this Agreement and shall execute such other
agreements and instruments with Agent to bind sub-contractor to said terms and
provisions.
ARTICLE III AGENT OBLIGATIONS
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3.01. Services sold by Agent hereunder shall be offered in accordance with
Mpower's current products, services, terms, pricing, and policies as set forth
by Mpower from time to time. Such offers are subject to change at any time at
Mpower's sole discretion. Agent is not authorized to deviate from the services
or the pricing schedule of Mpower without prior written consent from Mpower.
3.02. Agent shall represent Mpower and its products with the highest degree of
ethics, professionalism, and skill.
3.03. Agent agrees to perform its obligations hereunder in a professional and
efficient manner. Agent represents and warrants that it possesses the
qualifications, experience, and skills necessary to perform such obligations in
a professional and efficient manner. Mpower shall have the right, at all
reasonable times, to observe the performance of Agent and to review Agent's
records and books of account pertaining to this Agreement.
3.04. Agent agrees to meet with Mpower representatives at mutually agreed upon
times to discuss sales activities. Such meetings shall include, at a minimum,
the provision of present and projected customer contact information, sales
forecasts, Mpower customer orders to date and a record of all customer
complaints previously reported to Agent or Mpower pursuant to this Agreement
(the "Progress Information"). Agent agrees to provide, upon Mpower's request,
documentation of such Progress Information in the form designated by Mpower.
3.05. Agent shall work with Mpower to ensure customer satisfaction in all
matters relating to the telecommunication services provided by Mpower to
customers secured by Agent, including but not limited to, the provision,
installation and activation, maintenance, and additional marketing and billing
of such services. Agent shall promptly report all complaints regarding Mpower
services to Mpower's customer care department.
3.06. Agent shall assist Mpower's Customer Care Divisions with customer care and
repair issues. Agent will be trained on Mpower's repair process and is expected
to manage each issue to resolution. In addition, Mpower will send a welcome kit
to each new end-user which sets forth Mpower's policies for Customer Care.
3.07. Agent shall comply with all applicable federal, state, and local laws
including without limitation, federal and state tariff regulations, Mpower's
specific tariffs, and Mpower's rules and procedures related to the sale of
services and the conduct of its business. Agent shall also comply with Mpower's
sales policies issued from time to time, including the use, without
modification, of Mpower's applications, forms, documents, sales and marketing
materials, and any documents required by Mpower for the sale, provisioning, or
maintenance of customers.
3.08. Agent shall procure customers for Mpower services in amounts or quantities
sufficient to meet or exceed the minimum performance requirements as set by
Mpower from time to time.
3.09. Agent agrees to submit promptly completed applications for approved
services on appropriate forms and to deliver such applications to an authorized
Mpower representative. Applications for services shall not be binding until
approved and accepted by Mpower. If as a result of Agent's failure to provide
accurate and validated customer information, a customer terminates its
relationship with Mpower, Mpower reserves the right to recover any commissions
or other fees paid by Mpower to Agent with respect to such customer.
3.10. Mpower retains the right to deal directly with all customers, including
those secured by Agent, in all matters, including with respect to installation,
maintenance, additional marketing and billing of telecommunication services.
3.11. Agent shall designate an employee as its primary point of contact with
Mpower. Such employee shall be made reasonably available to Mpower during normal
office hours and shall establish procedures for escalation and/or emergency
contact after normal office hours.
3.12. Agent shall neither solicit nor receive commission payments for customers
which became Mpower customers through any other source. Any dispute regarding
the procurement of customers and/or Agent's entitlement to commissions
associated with such customers shall be decided at the sole discretion of
Mpower.
3.13. At Mpower's direction, Agent agrees to discontinue sales or marketing
efforts with regard to a potential customer, upon learning or discovering that
the potential customer is an existing Mpower customer currently being serviced
by an existing Mpower Account Manager.
3.14. It is expressly understood and agreed that customers who purchase Mpower
Services from or through Agent are Mpower customers for those Services, and that
Agent shall have no claim on ownership for those customers whatsoever for the
Services provided by Mpower.
3.15. Ail orders that Agent obtains and submits are subject to Mpower's approval
and acceptance in Mpower's sole discretion. In the event, Mpower receives orders
for services from different authorized agents and/or employees of Mpower, Mpower
in its sole discretion may determine who will receive credit for such order(s)
and whether Agent will receive or continue to receive commissions for Agent's
orders or any part thereof regardless of the sequence in which the various
orders are received, processed or accepted.
3.16. Mpower specifically prohibits the use by any Agent of the industry
practice known as "slamming", (e.g. obtaining the account without the knowledge
and consent of the customer). Should Mpower become aware that an account has
been acquired through "slamming", the customer will be given the immediate
option to return to their original service provider. Should the customer choose
to cancel Mpower service, Agent shall pay to Mpower a service charge in the
amount of $50.00 per account, in addition to reimbursing the cost of any
customer charges or other liability incurred by Mpower.
3.17. Agent agrees to maintain general liability insurance in amounts which are
sufficient to cover any negligent acts or omissions committed by Agent or
Agent's employees or sub-contractors during its performance of this Agreement
and to provide proof of such insurance upon request by Mpower.
3.18. Agent agrees to designate at least one (1) representative as a "trainer".
Such trainer shall, at Agent's expense, attend Mpower training for all products
and services to be sold by Agent. Such trainer shall assume ongoing
responsibility for the training of all other employees and sub-contractors of
Agent.
ARTICLE IV OBLIGATIONS OF MPOWER
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4.01. Mpower shall designate an employee as its primary point of contact with
Agent. Such employee shall be made reasonably available to Agent during normal
office hours and shall establish procedures for escalation and/or emergency
contact after normal office hours.
4.02. Mpower shall compensate Agent on a commission basis. Commissions and terms
of payment are set forth in Exhibit A attached hereto unless the amount owed by
Mpower to Agent is less than One Hundred Dollars ($100.00), in which case Agent
shall be paid at such time as the amount due Contractor totals at least One
Hundred Dollars ($100.00).
4.03. Mpower shall provide statements and related commission payments to Agent
within thirty (30) days following the calendar month in which a customer which
has been procured by Agent receives an invoice for Mpower services.
4.04. Upon Agent's request, but no later than 90 days after commission has been
paid, Mpower shall review all commission payments made to Agent hereunder. If,
in Mpower's sole discretion, an error has been made, Mpower shall adjust such
error in the next commission payment.
ARTICLE V PUBLICITY AND USE OF MPOWER'S NAMES. LOGOS OR MARKS
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5.01. Prior to use, Agent shall submit to Mpower for approval all advertising,
press releases and marketing materials that refer in any way to Mpower's
services, Mpower's products or to this Agreement.
5.02. Agent is prohibited from using Mpower's names, logos, or marks without the
express written consent of Mpower.
ARTICLE VI CONFIDENTIALITY - RESTRICTIVE COVENANTS
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Confidential Information
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6.01. Any information furnished by Mpower to Agent for Agent's use is the sole
property of Mpower. This proprietary business information includes, but is not
limited to, customer requirements, customer lists, pricing strategies, marketing
information and strategies, and information concerning Mpower's employees,
products, services, prices, and operations, except promotional or sales material
and pricing information intended for actual or prospective customers.
6.02. Information described in 6.01 of this Agreement, except promotional or
sales material and pricing information intended for actual or prospective
customers, will be considered to be confidential regardless of the existence or
absence of protection under any proprietary right; and information described in
6.01 of this Agreement will be considered to be confidential regardless of the
manner in which the information has been received and/or disclosed to Agent by
Mpower, whether orally, in writing, or by any other means.
AGREEMENT NOT TO DISCLOSE
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6.03. Agent will keep all confidential information, as described in 6.01 of this
Agreement, in the strictest confidence and will not disclose said information,
directly or indirectly, to any other person, firm, entity, or corporation or use
it in any other way except with Mpower's approval. Mpower will approve use of
such information only to the extent necessary to perform the Services under this
Agreement.
6.04. Agent will take necessary actions to prevent improper use or disclosure of
confidential information by employees, Agent, subcontractors or other parties
who may have access to the information. This provision shall remain in full
force and effect and shall survive the termination of this Agreement
Return of Confidential Information After Termination
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6.05. Within 30 days of termination of this Agreement, Agent
will return any confidential information in Agent's possession to Mpower.
Restrictions on Solicitation
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6.06.During the term of this Agreement and for one (1) year after Agent's
receipt of final payment from Mpower, and except as required pursuant to Agent's
duties to Mpower in connection with this Agreement or unless Mpower gives prior
written consent to the contrary, Agent will not directly or indirectly
solicit or contact any customer of Mpower for any commercial pursuit that to
Agent's knowledge is in competition with Mpower,
(ii) take away or interfere or attempt to interfere with any custom,
trade, business, patronage or other business relation of Mpower, or induce, or
attempt to induce any independent contractors, employees, agents or consultants
of or to Mpower to do anything from which Agent is restricted by reason of this
Section 6; or
(iii) induce or aid others to induce independent contractors, employees,
agents or consultants of Mpower to terminate their relationship with Mpower, or
interfere or attempt to interfere with any independent contractors, employees,
agents or consultants of Mpower.
APPLICATION OF COVENANTS
------------------------
6.07. The activities described in this Section 6 shall be prohibited regardless
of whether undertaken by Agent in an individual or representative capacity, and
regardless of whether performed for Agent's own account or for the account of
any other individual, partnership, firm, corporation or other business
organization (other than Mpower).
REASONABLENESS OF COVENANTS
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6.08. If, at the time of enforcement of the covenants set forth in this Section
6, a court holds
that the restrictions stated herein are unreasonable under circumstances then
existing, the parties
hereto agree that the maximum period, scope or geographical area reasonable
under such
circumstances shall be substituted for the stated period, scope or area. ^
ARTICLE VII TERMINATION OF AGREEMENT PRIOR TO EXPIRATION OF TERM
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7.01. This Agreement shall be terminable by either parry upon thirty (30) days'
prior written notice (hereinafter "Termination Without Cause"). If Mpower
terminates this Agreement pursuant to this section , Mpower shall pay Agent
earned commissions for the lesser of (a) the remaining term of the Agent's
customer contracts in existence on the date Mpower gives notice of termination;
or (b) two (2) years. Agent's commissions shall be calculated each month
pursuant to the commission table in section A.02 of Exhibit A based upon Agent's
monthly revenue level for the then-current revenue month. If Agent terminates
this Agreement for any reason, Agent shall forfeit any unpaid commissions after
the date of termination.
7.02. Mpower may terminate this Agreement and Agent will forfeit any unpaid
commissions upon the occurrence of any of the following (hereinafter
"Termination for Cause"):
a. For breach by Agent of any provision of this Agreement (including
suspension of business, any act amounting to business failure,
institution of receivership or liquidation proceedings, substantial
change in ownership) provided that written notice of breach has been given to
Agent and such breach has not been cured within thirty (30) days after delivery
of such notice;
b. Immediately upon notice and without cure period by Mpower in the event
Mpower discovers any improper marketing activity by Agent, including, but not
limited to, disparaging or slandering the Services of Mpower, moving or
attempting to move Mpower customers to providers of services similar to the
Services covered hereunder, or slamming;
c. Immediately upon notice and without cure period for unethical conduct by
Agent including, but not limited to, offering or providing to any employee any
financial or other incentive for the purpose of obtaining customer leads or
other information which is deemed to be beneficial to the Agent;
d. Immediately upon notice and without cure period if use of the Mpower
Services by Agent is for any purpose which is illegal or if Agent uses the
Mpower Services to send any message which is illegal, threatening or harassing,
including but not limited to, the transmission of unsolicited messages, or
messages which infringe any third party's proprietary right;
e. Immediately upon notice and without cure period in the event in Mpower's
sole discretion, Agent commits repeated breaches of this Agreement or otherwise
demonstrates a pattern of deviating from professional standards with regard to
the marketing and sales of Mpower Services; or
f. If Agent attempts or actually sells unauthorized Mpower Services or
authorized Mpower Services at unauthorized rates, provided that written notice
of breach has been given to Agent and such breach has not been cured within
thirty (30) days after delivery of such notice.
g. Immediately upon notice and without cure period if the quantity of
contractor's lines sold and installed during the first six (6) months of the
Agreement fails to reach the performance level defined in Exhibit A attached
hereto; or
h. Immediately upon notice and without cure period if any material rate,
term, condition or provision of this Agreement is substantially changed by order
of any court or governmental authority having jurisdiction over this Agreement
or the telecommunications industry;
i. Immediately upon notice and without cure period if Agent shall
materially or repeatedly violate or fail to perform under any tariff, applicable
law or regulation;
j. Immediately upon notice and without cure period if Agent breaches the
provisions of Article VI of this Agreement.
7.03. Any obligation or liability incurred by either party prior id
termination shall survive. The aggrieved party shall, further, have the right
to pursue any and all remedies at law or in equity.
ARTICLE VIII
RIGHT TO MODIFY SERVICES AND COMMISSION FEES
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8.01. Mpower may change the Products and Services and Commission Plan as set
forth in Exhibit A under this Agreement on 30 days written notice to Agent. All
orders accepted and installed by Mpower prior to end of the 30-day notice period
shall be paid on Products and Services and pursuant to the Commission Plan in
place prior to the notice.
ARTICLE IX DISPUTE RESOLUTION
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9.01. Any dispute, controversy or claim arising out of or relating to this
Agreement, or the breach thereof, which the parties are unable to resolve
through direct negotiations, shall be settled by binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. The arbitrators may, upon
application of either party, provide for discovery pursuant to the Civil
Practice Law and Rules of the State of New York. The arbitration shall be
conducted in Rochester, New York. The prevailing party, as part of the mediation
or arbitration award, shall be awarded its fees and costs, including reasonable
attorneys' fees.
ARTICLE X
LIMITATION OF LIABILITY
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10.01. Except as otherwise expressly provided in this Agreement, neither party
shall be liable to the other party for compensation, damages, loss of
prospective profits or anticipated sales, expenditures, investments, loss of
business commitments, or good will of either party, or otherwise, except for
compensation owed by Mpower to Agent for any orders signed by Mpower which are
in process at the time of termination or expiration.
10.02. In no event shall either party be liable to the other for any incidental,
punitive, special or consequential damages of any nature whatsoever, including
without limitation lost profits or revenues, regardless of the foreseeability
thereof, arising out of a parry's actions or inactions or otherwise occasioned
by a party's inability to perform its obligations hereunder.
ARTICLE XI INDEMNIFICATION
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11.01. Agent agrees to defend, indemnify, and hold Mpower harmless from and
against any and all claims, liabilities, demands, actions, damages, suits, or
other expenses (including reasonable attorney's fees and costs of litigation)
resulting from any slamming by Agent (see paragraph 3.16), or any other
intentional misrepresentation by Partner, whether such actions are directly
against Mpower or against Agent and Mpower.
ARTICLE XII ASSIGNMENT
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12.01.Mpower reserves the right to assign its rights and duties under this
Agreement. This Agreement shall inure to the benefit of (a) Mpower's successors
(including by way of merger, consolidation and reorganization) and assigns, (b)
Mpower Communications Corp.'s successors (including by way of merger,
consolidation and reorganization) and assigns. Agent may not assign its rights
or obligations (whether by sale of stock, sale of assets, merger, consolidation,
reorganization, or otherwise) under this Agreement without the advance written
notice of Mpower's General Counsel or Assistant General Counsel, which consent
may be withheld by Mpower in its sole discretion. Subject to the foregoing, this
Agreement shall be binding upon Agent, its heirs, executors, administrators,
guardians, successors and assigns.
ARTICLE XIII OTHER PROVISIONS
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BINDING EFFECT
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13.01. This Agreement shall be binding and shall inure to the benefit of the
parties hereto and
their respective, permitted successors and assigns.
WAIVER
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13.02. The waiver in writing by either party of any right granted to it
shall not operate as a
waiver of any other rights or future breach of any such provision or any other
provision hereof. The
failure to enforce any provision of this Agreement shall not constitute a waiver
of either party's right
hereunder unless such waiver shall be in writing signed by both parties to this
Agreement
SURVIVAL
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13. 03. The respective rights and obligations of Mpower and Agent under this
Agreement which by their nature would continue beyond the termination,
cancellation or expiration of this Agreement, shall survive such termination,
cancellation or expiration.
ENTIRE AGREEMENT
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13.04.This Agreement, together with its schedules, exhibits and attachments,
comprises the entire agreement between the parties on the subject matter
contained in this Agreement and supersedes all prior representations,
agreements, and understandings of the parties, including, without limitation,
any letter of intent, letter or memorandum of understanding, or similar
documents.
ADDITION/MODIFICATION
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13.05.Without limiting the specific exceptions noted in this Agreement, no other
addition to or modification of this Agreement shall be binding unless executed
in writing by both parties.
NOTICES
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13.06. All notices or other communications given in connection with this
Agreement shall be made in writing and either delivered in person, or by a
recognized overnight courier service, or deposited with the United States Postal
Service as first-class certified mail, postage prepaid, and return receipt
requested, at the following address:
Such communication shall be effective upon receipt but no later than five (5)
days after mailing. The notice address as provided herein may be changed by
written notice given as provided above.
SEVERABILITY
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13.07. In the event that any of the terms of this Agreement or the application
of any such term shall be held to be invalid by any court of any competent
jurisdiction, the remaining terms of this Agreement, or their application shall
not be affected thereby, and shall remain in full force and effect.
FORCE MAJEURE
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13.08.Each party shall be excused for any failure, delay, or interruption in
performing its obligations hereunder that is due to causes or conditions beyond
its control, including, without limitation, acts of God, elements, weather
conditions, earthquakes, settlements, fire, accidents, sabotage, power failures,
cable cuts, acts or omissions of governmental authorities (including regulatory
authorities and courts), shortages of labor and materials, acts of third parties
for which Mpower is not responsible, injunctions, labor disputes of every kind
(including those which affect each party or its contractors, suppliers, or
subcontractors), or any other condition or circumstance, whether similar to or
different from the foregoing, which is beyond the control of each party or which
cannot be prevented or remedied by reasonable effort and at reasonable expense.
GOVERNING LAW
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13.09.This Agreement shall be governed by the laws of the State of New York
applicable to contracts made or to be wholly performed there (without giving
effect to choice of law or conflict of law principles).
LEGAL COMPLIANCE
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13.10.The parties agree that this Agreement will be carried out in compliance
with all local, state and federal laws, regulations and decisions.
BINDING TERMS AND CONDITIONS
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13.11 .Agent acknowledges that Agent has read this agreement, understands it,
and agrees to be bound by its terms and conditions.
IN WITNESS THEREOF, the parties thereto have caused this Agreement to be
executed by their duly authorized representatives upon the day and date set
forth below.
MPOWER COMMUNICATIONS CORP. Agent
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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EXHIBIT A
COMPENSATION SCHEDULE
A.01. All Products and Services provided by Mpower are eligible for commission
payment EXCEPT the following:
Residential Services Directory Charges Maintenance Fees Subscriber Line Fees
Equipment Rental Taxes and Surcharges All Non-Recurring Charges
Monthly recurring revenue billed by Mpower for eligible Products and Services is
referred to as "Billed Revenue".
A.02. Commissions.
a. The following Commission Plan is based on Billed Revenue growth. The
objective is to grow Billed Revenue on a month over month basis. Residual
commissions will be capped at 15% per month provided Billed Revenue continues to
grow each month. If for any consecutive three-month period, Mpower does not
install and ▇▇▇▇ a new customer whose order was obtained by Agent, Mpower
reserves the right to terminate this Agreement as outlined in 7.01.
below.
Commissions will be paid on eligible Products and Services in accordance with
the table
Residual Schedule One Time Bonus After Install
Monthly Revenue Commission POTS' Data'
Level One . 0 - $20,000 10% $ 20 50%
Level Two . $ 20,001 - $50,000 12% $ 25 75%
Level Three Over $50,000 15% $ 30 100%
"POTS" is defined as each unique business telephone number or DSL circuit.
"Data" is defined as each unique Internet connection, or voice service
delivered via a T-l. "One Time Bonus After Install" percentage applies to Billed
Revenue minus all usage-based services and features for the first month of
billing the applicable customer.
Residual Commissions are paid the month following the first invoice. One
time bonus is paid the month following installation.
b. If customer disconnects within One Hundred and Eighty days (180) of
installation, Mpower
reserves the right to charge back Agent commissions previously paid for (hat
customer account
including adjustments to commissions overpaid due to such customer's billed
revenues. Mpower
may deduct such charge backs from current commissions owed to Agent.
c. No commissions may be earned and will not be paid on customer accounts that
are more than ninety (90) days past due. If the end-user becomes current, Agent
shall be paid commission in full on such accounts.
d. Mpower reserves the right to impose a non-standard commission where
application sales are non-standard.
A.03. Six Month Trial Period
Mpower reserves the right to terminate this contract if less than $4000 in
new Billed Revenue from new accounts are sold and installed during the first six
(6) months of this Agreement. If terminated pursuant to this provision
commission will be paid on all orders that have been installed and accepted for
invoice at the date of the termination. No residual commissions will be paid
after date of termination.
