DISTRIBUTOR/MARKETING AGREEMENT
This agreement (this "Agreement") is entered into as of April 29, 1999
(the "Effective Date") by and between Qwest Communications Corporation
("Qwest"), with offices at 000 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, and
TechWave Inc. ("TechWave"), with principal offices at 000 Xxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, XX 00000.
WITNESSETH:
WHEREAS, Qwest and TechWave desire to enter into an agreement pursuant to
which: (a) TechWave will act as a distributor of certain business and
consumer services of Qwest; (b) TechWave will market certain services over
the Internet; through inbound calls and during TechWave sales calls (c)
TechWave will purchase its telecommunications services from Qwest; and (d)
TechWave will issue a warrant to Qwest for the purchase of certain shares of
common stock of TechWave.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants,
agreements and representations herein contained and subject to the terms and
conditions herein set forth, and intending to be legally bound hereby, Qwest
and TechWave hereby agree as follows:
1) TERM.
The terms and conditions of this Agreement shall be effective between the
Effective Date and the Expiration Date (as hereinafter defined), inclusive
(such period sometimes hereinafter the "Initial Term"), unless sooner
terminated as provided herein. The term "Expiration Date" shall mean that
date which is three (3) years after the Effective Date. Unless either party
shall give written notice to the other party at least ninety (90) days prior
to the Expiration Date, this Agreement shall automatically renew for a one
(1) year period ("First Renewal Term"). Unless either party shall give
written notice to the other party at least ninety (90) days prior to the
expiration of the First Renewal Term, this Agreement shall automatically
renew for an additional one (1) year period ("Second Renewal Term").
2) THIRD PARTY SALES ARRANGEMENTS.
a) Qwest and TechWave each agree to all of the terms and conditions
set forth in Exhibits 2(a), 2(b) and 2(c) and all of the terms,
conditions, agreements, representations, warranties and covenants
set forth therein are hereby incorporated herein as fully as if
rewritten in the body of this Agreement. Residential Services,
Business Distributor Services and Business Affinity Services shall
be collectively referred to as "Services".
b) Qwest shall provide initial training and support to certain
TechWave employees and agents, who shall thereafter be responsible
for training TechWave's employees and agents. All such training and
support, other than the salaries of Qwest employees so involved,
shall be at TechWave's expense, subject to TechWave having given
its prior approval.
c) If TechWave, at any time during the term of this Agreement, desires
to use any marketing materials, whether in print or any other media
or form, including, without limitation, electronic, internet,
"world wide web" sites, visual, audio or any combination thereof,
and whether or not there is any reference to Qwest, relating to the
Services then TechWave may submit proposed marketing materials to
Qwest for Qwest's written approval. If Qwest does not provide its
written approval within fifteen (15) business days of receipt, then
such marketing materials shall be deemed to have been rejected and
TechWave agrees not to use any such marketing materials. If Qwest
does not provide its written
* CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO PORTIONS OF THIS
EXHIBIT.
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approval within such fifteen (15) days, Qwest shall use reasonable
efforts to advise TechWave as to the reasons for not approving the
marketing materials.
d) TechWave shall not engage in solicitation of Services by outbound
telemarketing, sweepstakes, contests, or drawings without the prior
written consent of an officer of Qwest. In the event TechWave makes
a request for any such consent by Qwest, then Qwest agrees to
review and respond to TechWave within ten (10) business days of
receipt of such request and if such request is denied to provide
Qwest's reason or reasons for such denial. Notwithstanding the
immediately preceding sentence, any failure of Qwest to respond, or
to provide a reason for denial, shall not be deemed to constitute
consent.
e) TechWave shall not make any representation of rates, terms or
conditions of the Services that conflict with the applicable
tariffs or information provided by Qwest. TechWave shall not engage
in any activity that would cause Qwest to incur any obligation or
liability to employees, contractors or other parties utilized by
TechWave in selling the Residential Services. TechWave is
responsible for all expenses and obligations incurred by it as a
result of its efforts to solicit persons to become a new Customer
(as hereinafter defined) of Qwest. The term "Customer" shall mean
any person to which Qwest provides services.
f) If a person that is not a Customer is solicited by TechWave and
also by either another independent authorized sales representative
or by an employee of Qwest, Qwest may reasonably determine to which
representative or employees to credit such order, and TechWave
agrees to abide by and be bound by Qwest's decisions in this
regard. Qwest agrees to use commercially reasonable best efforts to
make such determination on the basis of which representative or
employee first submitted to Qwest a complete order, executed by the
person solicited, for Service. Qwest shall have no liability to
TechWave for commissions that might have been earned hereunder but
for the inability or failure of Qwest to provide Qwest Services to
any person solicited by TechWave or in the event of interruption,
discontinuation or modification of the Qwest Services.
g) TechWave shall not provide customer service to Customers that
TechWave obtains for Qwest, including billing, collections or
repair service, without Qwest's prior written consent. Every
Customer attracted by TechWave shall be a customer of Qwest and the
termination or expiration of this Agreement shall have no effect on
Qwest's relationship with any such Customer.
h) Qwest shall have the sole right to verify, accept or reject all
orders, to set the prices for the Services, and the terms and
conditions of the Services or other adjustments thereto without
liability to TechWave.
i) The availability of the Services to any person solicited by
TechWave will be at the discretion of Qwest based on business
reasons including, but not limited to, creditworthiness and
geographic location.
j) TechWave shall provide prominent placement of Qwest's name on each
of the following home pages: "xxx.xxxxxxx.xxx", "xxx.xxxxxxxxx.xxx"
and "xxx.xxxxxxxxxxx.xxx" (collectively sometimes hereinafter the
"Main Pages") TechWave shall also provide prominent placement of
Qwest's name and logo on those other pages, screens or links over
which TechWave, or any Affiliate (as hereinafter defined) of
TechWave, exercises Content Control (as hereinafter defined) (such
other pages and the Main Pages collectively sometimes hereinafter
the "Relevant Homepages"). TechWave shall not permit any Relevant
Homepage to display any advertisement or offer for the sale of long
distance telecommunications service through any phrase, graphic or
image, or through any combination thereof, provided however that
such restriction shall not preclude TechWave from making any such
display on a Relevant Homepage that is not a Main Page with respect
to Startel Communications prepaid cards. TechWave shall not permit
any Main Page to display any reference to AT&T, MCI/WorldCom,
Sprint or Excel (collectively the "Named Entities") or to any
successor in interest to any such entity, other than Permitted
References (as hereinafter defined). TechWave represents and warrants
that it has the right, and covenants that during the term of this
Agreement it
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will maintain the right, with respect to the Relevant Homepages, to
provide for the placement of Qwest's name and logo, and to restrict
such other usage, as contemplated by this Agreement. The term
"Permitted References" shall mean a reference to a Named Entity
that includes a reference to, and is made only in the clear context
of, offering a service or product, including without limitation
cellular service, that is not in any manner similar to the type of
services covered by this Agreement and that does not, directly or
indirectly, make reference to, suggest or have any reasonable
connotation relating to any of the types of services provided
hereunder. TechWave shall cause all of its indexing systems to
point all references to, or including, long distance
telecommunications to point to Qwest. The term "Affiliate", when
used with respect to either party, shall mean any person that,
directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such
party. The term "Content Control" means that a page resides in a
data center owned or controlled by TechWave or a TechWave Affiliate
and that TechWave owns or controls the root URL associated with
such page.
k) Qwest shall provide Co-Branding Service (as hereinafter defined) to
TechWave, provided however that if during any Measuring Period (as
hereinafter defined) TechWave fails to obtain at least [ * ]
Residential Service Customers and at least [ * ] Business Affinity
Customers,then Qwest may thereafter elect to discontinue providing
such Co-Branding Service. The term "Measuring Period" shall mean
any six (6) month period during the term of this Agreement that
begins after that date which is ninety (90) days after the Program
Launch Date. The term "Co-Branding Service" shall mean: i) the
display of TechWave's name and logo on residential calling cards;
ii) the display of TechWave's name and logo on the invoices of
Qwest Residential Service Customers that are sold by TechWave and
that are direct billed by Qwest; iii) the display of TechWave's
name and logo on fulfillment/welcome kits for Residential Service
Customers that are sold by TechWave; iv) the display of TechWave's
name and logo on Business Affinity Calling Cards for Customers sold
by TechWave; and v) the display of TechWave's name and logo on
Business Affinity fulfillment/welcome kits for Business Affinity
Customers sold by TechWave.
l) Both parties acknowledge that the agreement between said parties
was introduced to both parties through the Woodstock Group, LLC and
from time to time may, but shall not be required to, utilize WGI to
facilitate future activities;
3) OTHER COMPENSATION.
a) Qwest shall provide Marketing Development Funds based upon a
Program Launch Date (as hereinafter defined) of July 1, 1999. The
Marketing Development Funds shall be payable in [ * ] calendar
quarter installments of [ * ] each, with the first installment due
(45) days after the Program Launch Date, provided however that if
the Program Launch Date is June 1, 1999, then Qwest shall make an
initial installment payment of [ * ] within 45 days of the Program
Launch Date, [ * ] quarterly installment payments of [ * ] and a
final quarterly installment payment of [ * ], and further provided
that if the Program Launch Date is May 1, 1999, then Qwest shall
make an initial installment payment of [ * ] within 45 days of the
Program Launch Date, [ * ] quarterly installment payments of [ * ]
and a final quarterly installment payment of [ * ]. If this
Agreement is terminated, as provided for herein, then Qwest shall
have no obligation to make any such payment of Marketing
Development Funds that would otherwise be due after the date of
such termination. The term "Program Launch Date" shall mean the
first day of the calendar month in which TechWave is first able to
accept, on such date, orders for Qwest Service and shall be July 1,
1999, unless TechWave and Qwest are able to perform the requisite
services on either May 1, 1999 or June 1, 1999.
* CONFIDENTIAL TREATMENT REQUESTED.
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b) In the event Business Affinity Monthly Revenue during the first
twelve (12) months of this Agreement meets or exceeds [ * ]
additional commission shall be paid on Business Monthly Affinity
Revenue for the remainder of said twelve month period. In the event
Business Affinity monthly Revenue during the second twelve months
of the Agreement meets or exceeds [ * ] additional commission shall
be paid on Business Affinity Monthly Revenue for the remainder of
that twelve month period. In the event Business Affinity Monthly
Revenue during the third twelve month period of this Agreement
meets or exceeds [ * ] additional commission shall be paid on
Business Affinity Monthly Revenue for that the remainder of that
twelve month period.
c) Qwest agrees to contribute to a Cooperative Advertising Fund (as
hereinafter defined) and that the contribution for each calendar
quarter, as provided for herein, shall be equal [ * ] of CAF
Revenue (as hereinafter defined) for such calendar quarter. The
first such calendar quarter shall end on September 30, 1999 and the
contribution shall take place within forty-five (45) days
thereafter and subsequent contributions shall be made forty-five
(45) following the end of each applicable calendar quarter. Amounts
contributed to the Cooperative Advertising Fund by Qwest shall be
matched dollar for dollar by TechWave and shall be used only for
joint marketing campaigns that have been agreed upon by both
parties. With respect to any applicable calendar quarter (sometimes
hereinafter a "Measuring Calendar Quarter"), the term "CAF Revenue
shall mean, with respect to any calendar quarter ending after the
Program Launch Date and before the termination of this Agreement,
the aggregate amount of Commissionable Residential Revenue and
Business Affinity monthly Revenue for such calendar quarter and for
each other prior calendar quarter ending after the Program Launch
Date, if any.
4) MARKETING PROGRAMS.
Each party shall implement the marketing components/programs in the Marketing
Plan set forth in Exhibit 4 but the parties acknowledge that the roles,
responsibilities and program aspects may evolve and change during the term of
this Agreement. However, there will be no adverse changes to Qwest during the
term of this Agreement in exposure, number of impressions or placement as
currently set forth in the Marketing Plan.
5) WARRANT.
TechWave shall, simultaneously with the execution and delivery of this
Agreement, execute a Warrant Purchase Agreement, a Registration Rights
Agreement and related agreements set forth in Exhibit 5.
6) RETAIL SERVICES.
TechWave shall purchase all of its telecommunications services and Internet
access and web hosting services requirements from Qwest if the service is
available from Qwest, provided however that in the event any specific service
provided by Qwest does not comply in all material aspects with the minimum
performance levels and other material provisions set forth in the agreement
for such service, then TechWave shall thereafter not be required to purchase
such specific service from Qwest.
7) SERVICEMARKS, TRADEMARKS AND TRADENAMES.
Except as expressly permitted herein, neither party shall use any trademark,
service xxxx, brand name, trade name or any other intellectual property of
the other party or its affiliates without such party's prior written consent.
Without limiting the generality of the foregoing, TechWave shall not, except
as expressly permitted herein or with the prior written consent of Qwest,
advertise, market or provided information about Qwest services or use Qwest's
service marks, trademarks, logos or other intellectual property, whether in
print, electronically, on the "Internet" or otherwise.
8) REPRESENTATIONS, WARRANTIES AND COVENANTS.
* CONFIDENTIAL TREATMENT REQUESTED.
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a) Each party represents and warrants to the other party that it has
all material licenses, permits or authorizations to perform its
obligations under this agreement and covenants that it will
maintain all such licenses, permits or authorizations.
b) Each party represents and warrants to the other party that neither
the execution and delivery of this Agreement nor the performance of
the obligations provided herein will violate: i) the provisions
of, or obligations under, any other agreement to which such party
is a party to or by which it is bound; ii) the party's articles of
incorporation, by-laws or similar governing documents; or iii) any
license, judgment, decree, order, statute, law or other restriction
on such party.
9) SURVIVAL OF OBLIGATIONS UPON EXPIRATION OR TERMINATION.
Each obligation of a party to pay the other party any monies for amounts that
accrue or become due prior to the expiration or termination of this Agreement
shall survive the expiration or termination of this Agreement. Each
obligation of a party to indemnify the other party under this Agreement shall
survive the expiration or termination of this Agreement, provided that the
action, or inaction, giving rise to the indemnity claim arose prior to the
expiration or termination of this Agreement.
10) TERMINATION.
a) Either party may give a written "Notice of Intent to Terminate" to
the other party:
i) if there occurs an Event of Default; or
ii) if the other party becomes or is declared insolvent or
bankrupt, is the subject of any proceedings relating to its
liquidation, insolvency or for the appointment of a receiver or
similar officer for it, makes an assignment for the benefit of
all or substantially all of its creditors, or enters into an
agreement for the composition, extension or readjustment of all
or substantially all of its obligations
b) If the party to whom the Notice of Intent to Terminate was given
has not cured the Event of Default within twenty (20) business days
of receipt of the notice of Intent to Terminate, the party that
gave the Notice of Intent to Terminate shall immediately thereafter
have the right to terminate this Agreement by the giving of written
notice of termination to the other party.
11) DEFAULT.
The following shall constitute an "Event of Default" under this Agreement:
A party's failure to observe, perform or satisfy any material agreement,
covenant, warranty, term or condition contained herein
12) INDEMNIFICATION AND LIABILITY.
Each party shall protect, defend, and hold harmless from any loss, damage,
claim, expense, or cost, including legal expenses and counsel fees, that the
other party becomes liable for by reason of any breach by the indemnifying
party of any warranty, representation or covenant hereunder. NEITHER PARTY
SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL,
INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR ANY DAMAGES FOR LOST
DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUES OR LOST BUSINESS
ARISING FROM THIS AGREEMENT, WHETHER OR NOT FORESEEABLE, EVEN IF THE PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13) CONFIDENTIALITY.
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Any confidential data or technical or business information, and any
other confidential material ("Confidential Information"), furnished or
disclosed by a party to the other party hereunder, will remain the
property of the disclosing party and any such disclosure shall not in
any way be deemed to transfer any interest in the Confidential
Information to the party to whom it is disclosed. In addition, any list
or lists identifying Qwest Customers as such, and related information
or data, shall be considered to be Confidential Information of Qwest,
and shall be used by TechWave solely in the performance of its
obligations and duties hereunder and shall be returned to Qwest upon
termination of this Agreement. Any list identifying TechWave customers
as such, and related information or data shall be considered to be
Confidential Information of TechWave, and shall be used by Qwest solely
in the performance of its obligations and duties hereunder and shall be
returned to TechWave upon termination of this Agreement. Nothing in
this Agreement shall: (i) entitle Qwest to information relating to any
person that is not and has not been a Customer of Qwest; or (ii) affect
or restrict TechWave's ownership of data, lists or other information
relating to persons with whom TechWave had a preexisting relationship
or whose relationship with TechWave exists separate and apart from
Qwest's provision of Services. During the term of this Agreement and
for a period of three (3) years after termination of this Agreement,
neither party shall reveal, divulge, make known, sell, exchange, lease
or in any other way transfer any Confidential Information of the other
party to any third party or utilize such Confidential Information, in
direct or indirect competition with the other party. Each party shall
use reasonable precautions to protect the other's Confidential
Information and employ at least those precautions that such party
employs to protect its own confidential or proprietary information.
"Confidential Information" shall not include information the receiving
party can document (a) is in or (through no improper action or inaction
by the receiving party or any affiliate, agent or employee) enters the
public domain (and is readily available without substantial effort), or
(b) was rightfully in its possession or known by it prior to receipt
from the disclosing party, or (c) was rightfully disclosed to it by
another person without restriction, or (d) was independently developed
by it by persons without access to such information and without use of
any Confidential Information of the disclosing party. Each party, with
prior written notice to the disclosing Party, may disclose such
Confidential Information to the minimum extent possible that is
required to be disclosed to a governmental entity or agency in
connection with seeking any governmental or regulatory approval, or
pursuant to the lawful requirement or request of a governmental entity
or agency, provided that reasonable measures are taken to guard against
further disclosure, including without limitation, seeking appropriate
confidential treatment or a protective order, or assisting the other
party to do so. Each party agrees that monetary damages for breach of
obligations under this Section may not be adequate and that a party
will be entitled to seek injunctive relief with respect thereto.
14) MISCELLANEOUS PROVISIONS.
a) AMENDMENTS. The Agreement, together with all Exhibits, represents
the entire understanding of the parties as it pertains to the
subject matter herein. Any and all prior offers, agreements,
representations and understandings, whether oral or written, with
respect to the subject matter hereof shall be superseded by this
Agreement. Exclusive of any Tariff modifications initiated by
Qwest, once this Agreement has been fully executed, any amendment
hereto must be made in writing and signed by authorized
representatives of both parties.
b) ASSIGNMENT. This Agreement shall be binding on Qwest and TechWave
and their respective successors and permitted assigns. Neither
Party shall assign, sell or transfer this Agreement or any interest
herein or the right to receive the Services provided hereunder,
whether by operation of law or otherwise, without the prior written
consent of the other Party, provided however that neither party
shall unreasonably withhold or delay such consent if the
assignment, sale or transfer is to an affiliate of the party
desiring to make the assignment, sale or transfer.
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c) PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in
this Agreement, express or implied, is intended to or shall confer
upon any other Person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
d) WAIVER. Either Party's failure to insist upon or enforce strict
performance of any provision of this Agreement shall not be
construed as a waiver of any provision or right. Neither the waiver
by either of the parties hereto of a breach or a default under any
provision of this Agreement, nor the failure of either of the
parties, on one or more occasions, to enforce any provision of this
Agreement or to exercise any right or privilege hereunder shall
thereafter be construed as a waiver of any subsequent breach or
default of a similar nature, or as a waiver of any of such
provision, right, or privilege hereunder. Neither the course of
conduct between parties nor trade practice shall act to modify any
provision of this Agreement.
e) NOTICE. All notices, demands, requests, elections or other
communications which either Party may be required or desire to
serve upon the other party under the terms of this Agreement shall
be in writing and shall be served upon such other party: (a) by
personal service upon such other party at such other party's
address set forth below; or (b) by mailing a copy thereof by
certified or registered mail, postage prepaid, with return receipt
requested, addressed to such other party at the address of such
other party as set forth below; or (c) by sending a copy thereof by
Federal Express or equivalent courier service, addressed to such
other party at the address of such other party set forth below; or
(d) by sending a copy thereof by facsimile to such other party at
the facsimile number, if any, of such other party set forth below.
In case of service by Federal Express or equivalent courier service
or by facsimile or by personal service, such service shall be
deemed complete upon receipt by the Party. In the case of service
by mail, such service shall be deemed complete upon reasonable
proof of receipt by the Party. The addresses and facsimile numbers
to which, and persons to whose attention, notices and demands shall
be delivered or sent may be changed from time to time by notice
served, as herein provided, by any Party upon the other Party.
To TechWave:
TechWave Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
ATTN: Xxxxxx Xxxxxx, CEO
Facsimile#: 000-000-0000
With copies to:
TechWave Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx, Executive Vice President
Attn: General Counsel
To Qwest:
Qwest Communications Corporation
0000 Xxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
ATTN: Xxxx Xxxxxx, Senior Vice President
ATTN: Xxxxx Xxxxxx, Senior Vice President
ATTN: Xxxx Xxxxxx, Director of Consumer Distribution
With copies to:
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Qwest Communications Corporation
0000 Xxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
ATTN: Legal Department Facsimile # 000-000-0000
ATTN: Xxxxxx X. Xxxxxx, Vice President of Business Affinity
ATTN: Xxxxxx Xxxxx, Vice President of Distributor Markets
f) SEVERABILITY. In the event that any one or more of the provisions
contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been
contained herein. Further, in the event that any provision of this
Agreement shall be held to be invalid, illegal or unenforceable by
virtue of its scope or period of time, but may be made enforceable
by a limitation thereof, such provision shall be deemed to be
amended to the minimum extent necessary to render it valid, legal
and enforceable or in the alternative both parties shall negotiate
in good faith to substitute for such invalid, illegal, or
unenforceable provision a mutually acceptable provision that is
consistent with the original intent of the parties as specifically
expressed herein. The remainder of the provisions shall remain in
full force and effect.
g) RELATIONSHIP. Neither party shall have the authority to bind the
other by contract or otherwise make any representations or
guarantees on behalf of the other. Both parties acknowledge and
agree that the relationship arising from this Agreement does not
constitute an agency, joint venture, partnership, employee
relationship or franchise. TechWave acknowledges and agrees that it
is an independent contractor.
h) GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of New York law
applicable to contracts executed and fully performed within the
State of New York.
i) ARBITRATION OF DISPUTES. i) All claims, disputes and other legal
matters in question between the parties hereto arising out of or
relating to this Agreement or the breach or interpretation thereof,
shall be submitted to binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association. Arbitration shall be conducted in the City and County
of Denver, State of Colorado. There shall be no discovery other
than the exchange of information which is provided to the
arbitrator by the parties. The arbitrator shall have authority only
to award compensatory damages and shall not have authority to award
punitive damages, other noncompensatory damages or any other form
of relief; the parties hereby waive all rights to and claims for
relief other than compensatory damages.
ii) At any time after a dispute arises, but not later than thirty
(30) days after the earlier of the filing or a complaint in
state or Federal court located in the City and County of
Denver, State of Colorado, or the delivery of a demand notice
seeking arbitration, each party may require the other to
attempt in good faith to settle the dispute by mediation
administered by the American Arbitration Association under its
Commercial Mediation Rules before resorting to, or continuing
with, arbitration, litigation or some other dispute resolution
procedure.
iii) Nothing in this Section shall prohibit a party from seeking
injunctive relief.
j) HEADINGS. The headings of sections and subsections used in this
Agreement are for convenience only and are not part of its
operative language. They shall not be used to affect the
construction of any provisions hereof.
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k) THIRD-PARTIES. The representations, warranties, covenants and
agreements of the parties set forth in this Agreement are not
intended for, nor shall they be for the benefit of or enforceable
by, any person not a party hereto.
l) ATTACHMENTS AND EXHIBITS. All Attachments and Exhibits annexed to
this Agreement are expressly made a part of this Agreement as fully
as though completely set forth in it. All references to this
Agreement shall be deemed to refer to and include this Agreement
and all such Attachments and Exhibits.
m) AUTHORIZATION. Each Party represents that the person executing
this Agreement has been duly authorized by it to execute and bind
it to the terms and conditions contained herein. Each Party, with
full knowledge of all terms and conditions herein, does hereby
warrant and represent that the execution, delivery, and performance
of this Agreement are within its corporate powers, have been duly
authorized, and are not in conflict with law or the terms of any
charter or bylaw or any agreement to which it is a party or by
which it is bound or affected.
n) AUDIT. During the term of this Agreement and for a period of one
(1) year following the expiration or termination hereof, each party
shall have the right, at its own expense and following fifteen (15)
days prior written notice, to audit the books and records of the
other party which directly relate to the transactions set forth
herein. If, with respect to any audit period, the parties determine
that the party being audited owes any amount to the auditing party
in excess of the amounts previously paid or acknowledged to be due
(such excess amount sometimes hereinafter an "Audit Amount Due"),
then the party owing the Audit Amount Due shall immediately pay
such amount to the other party and, if the Audit Amount due exceeds
five percent (5%) of the amount otherwise paid and/or agreed to be
due for such audit period, the party owing the Audit Amount Due
shall pay the reasonable costs of such audit. Such audit rights may
not be exercised more than one (1) time in any twelve (12) month
period, provided however that if the Audit Amount Due for any audit
period exceeds ten percent (10%) of the amount otherwise paid
and/or agreed to be due for such audit period then such audit shall
not be considered in limiting the frequency of audits.
IN WITNESS WHEREOF, Qwest and TechWave have executed and delivered
this Agreement, all as of the date first written above.
TECHWAVE INC. QWEST COMMUNICATIONS
CORPORATION
By: Xxxxxxx X. Xxxxxxxx By: Xxxx Xxxxxx
------------------------------ -----------------------------------
Xxxxxx Xxxxxx, CEO & President Xxxx Xxxxxx, Senior Vice President
Date: 29 April 1999 Date: _________________________________
By: Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx, Senior Vice President
Date: 4/30/99
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EXHIBIT 2(a)
BUSINESS DISTRIBUTOR SERVICES
1. SERVICES - Qwest appoints TechWave as a non-exclusive representative
within the contiguous 00 xxxxxx xx xxx Xxxxxx Xxxxxx to promote the sale of
and solicit orders for the following Qwest services ("Business Distributor
Services"): Q.Guaranteed, X.Xxx, Q.icommerce, WorldCard, WAL, Point-To-Point,
Broadcast Fax, and Audio Teleconferencing. TechWave shall represent and
describe the Services to potential customers of Qwest only as said Business
Distributor Services are described in the applicable Qwest Tariffs. Tariffs
relating to the Business Distributor Services may be changed by Qwest at its
sole discretion.
2. COMMISSION - During the term of this Agreement and provided TechWave is
not in default of any material obligations hereunder, TechWave shall receive
a commission as defined below on "Collected Revenue" for new accounts
solicited by TechWave on the Business Distributor Services sold by TechWave
in accordance with Qwest's then existing tariffs, provided however that Qwest
shall not pay a commission with respect to any account that at the time of
solicitation or sale is a Business Distributor Services Customer of Qwest or
of any Qwest Affiliate. "Collected Revenue" is defined as interexchange toll
and line charges actually collected by Qwest relating to Business Distributor
Services sold by TechWave in accordance with this Agreement (excluding taxes,
installation charges, local loops, termination charges and other fixed
monthly service fees).
A. During the first twelve (12) months after the Effective Date, the
commission rates shall be [ * ] for all Collected Revenue from
voice, frame relay and private lines Business Distributor Services
and [ * ] for all Collected Revenue from dedicated Internet access
Business Distributor Services.
B. Except for the first twelve (12) months after the Effective Date,
during the term of this Agreement and thereafter until the earlier
of i) twelve (12) months from the date of termination of this
Agreement and ii) the date the amount of commissions otherwise
payable hereunder is [ * ] or less a month, provided in all events
TechWave is not in default of its obligations under Section 13 of
the Agreement or Section 3, 4 or 5 of this Exhibit, the commission
for each month shall be based upon the commission rate schedule
below.
COLLECTED REVENUE COMMISSION PERCENTAGE
$0 - 9,999
$10,000 - $24,999
$25,000 - $49,999 [ * ]
$50,000 - $99,999
$100,000 - $199,999
* CONFIDENTIAL TREATMENT REQUESTED
1
EXHIBIT 2(a)
COLLECTED REVENUE COMMISSION PERCENTAGE
$200,000 - $299,999
$300,000 - $399,999 [ * ]
$400,000 - $499,999
$500,000+
Qwest may, with the prior written consent of TechWave, elect to pay
commissions based upon billed revenue, however in such event, Qwest reserves
the right to compare Collected Revenue to billed revenue and chargeback
TechWave the difference in commissions. Qwest reserves the right to set off
from commissions any amount due to Qwest by TechWave. Commission payments
for each Customer xxxx will be paid by Qwest approximately forty-five days
from the end of the month in which such xxxx cycle ends.
3. TechWave shall not sell Qwest Business Distributor Services or the long
distance telecommunications services, frame relay or dedicated internet access
services of any other person to Qwest Major Accounts, as designated by Qwest
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 Qwest.
4. TechWave shall use commercially reasonable efforts to not, directly or
indirectly, induce or solicit any person employed by or under contract with
any sales representative, agent or master agent of Qwest or any Qwest
Affiliates ("Qwest Rep."), to terminate his, her or its relationship with the
Qwest Rep. and/or to provide sales or marketing services on behalf of
TechWave.
5. TechWave shall not, as long as commissions are payable pursuant to this
Agreement (including those payable after termination or expiration of this
Agreement), solicit any Business Service Customer of Qwest or of any Qwest
Affiliate to obtain long distance telecommunication service, frame relay or
dedicated internet access services of any other person or induce any Business
Service Customer of Qwest or of any Qwest Affiliate to discontinue its
relationship with Qwest or with any Qwest Affiliate.
6. Provided that TechWave obtains Qwest's prior written consent, which
consent shall not be unreasonably withheld, TechWave may permit non-employees
to promote the sale of and solicit orders for Business Distributor Services.
7. TechWave shall provide, at TechWave's cost, a copy of "QWEST'S POLICIES
AND PROCEDURES REGARDING SLAMMING PREVENTION", including an
"Acknowledgement" form as set forth in Exhibit 4(e), of this Agreement,
to all employees, agents, contractors or independent distributors
involved in soliciting orders for the Business Distributor Services.
TechWave shall have each such person review such policy and return to
TechWave a signed "Acknowledgment" form, indicating that they
understand and will comply with such policy. TechWave agrees to produce
a copy of the signed Acknowledgment form within forty eight (48) hours
of Qwest's request for any person involved in soliciting orders for
Business Distributor Services.
* CONFIDENTIAL TREATMENT REQUESTED.
2
EXHIBIT 2(a)
8. TechWave shall obtain a signed authorization for the Business
Distributor Services in a format approved by Qwest in writing, for each
customer sold hereunder ("Authorization"), and TechWave shall use
commercially reasonable efforts to safeguard against the submission of
improper, inaccurate and invalid Authorizations. In the event a local
exchange company ("LEC") or any regulatory entity assesses Qwest any
charges for improper, inadequate or invalid Authorizations relating to
Business Distributor Services ordered through TechWave, TechWave shall
promptly reimburse Qwest for all LEC or regulatory charges, plus an
Qwest management fee of [ * ] per customer telephone number ordered
through TechWave that is deemed to lack proper Authorization. Payment
for said charges may be withheld from payable commissions, provided
however, no charge or fee shall be payable by TechWave if the charge or
fee is the result from an improper format of the Authorization as
approved by Qwest hereunder. Upon the request of Qwest, TechWave will
provide to Qwest or the LEC, at TechWave's expense, any documentation
required by the LEC regarding the Authorizations for sales of Business
Distributor Services sold hereunder. In addition, TechWave shall
promptly and in good faith cooperate with Qwest and all LECs in
attempting to resolve all carrier selection and Authorization disputes.
* CONFIDENTIAL TREATMENT REQUESTED.
3
EXHIBIT 2(b)
RESIDENTIAL SERVICES
1) GRANT OF AUTHORITY
Qwest appoints TechWave as a non-exclusive representative in the territory
set forth in this Exhibit 2(b) ("Territory") to promote the sale of and
solicit orders for the services defined in this Exhibit 2(b) ("Residential
Services"), all subject to the terms and conditions of this Agreement.
TechWave agrees to use its best efforts in selling Qwest's Residential
Services, including having each person solicited authorize the selection of
Qwest as his, her or its Primary Interexchange Carrier ("PIC") in accordance
with: i) all federal, state and local laws and regulations relating thereto
("Legal Requirements"); and ii) Qwest's procedures (such authorization shall
hereinafter be referred to as "PIC Authorization"). In performing duties
described in this Exhibit 2(b), TechWave shall observe the highest standard
of integrity and fair dealing with members of the public and shall do nothing
which would tend to discredit, dishonor, reflect adversely upon or in any
manner injure or impugn the reputation of Qwest or any of its affiliates.
2) COMMISSION.
TechWave shall receive commissions with respect to Residential Services sold
by TechWave in accordance with this Exhibit 2(b), provided however, no
commission shall be paid for Customers of Residential Service that contact
Qwest directly to subscribe to Qwest services (other than inbound sales
programs previously approved by Qwest in writing).
3) RELATIONSHIP.
a) During the term of this Agreement and thereafter for as long as
Qwest is paying commissions for Residential Services pursuant to
this Agreement, TechWave shall not, directly or indirectly, market,
solicit or sell residential long distance to any person on behalf
of a competitor of Qwest.
b) TechWave shall secure and use at its own expense the equipment
necessary for the purpose of communication and electronic download
of PIC Authorizations to Qwest. Based on Qwest's current standards,
the cost of the minimum equipment required would be less than ten
thousand dollars ($10,000).
4) ORDER PROCESSING
a) TechWave shall obtain a valid and accurate PIC Authorization, for
each Residential Service Customer telephone number. If TechWave
submits service order information electronically to Qwest, upon
request by Qwest, TechWave shall, within forty-eight (48) hours of
Qwest's request, produce a copy of the PIC Authorization or such
other evidence of the PIC Authorization as requested by Qwest, for
the Residential Service Customer telephone number requested. If
TechWave does not comply with such request, Qwest reserves the
right not to accept additional service orders until TechWave
complies.
1
EXHIBIT 2(b)
b) TechWave shall safeguard against the submission of invalid PIC
Authorizations and PIC Authorizations that do not meet the Legal
Requirements. Without limiting the generality of the previous
sentence, if the number of Residential Service PIC Authorizations
that are determined to be Deficient PIC Authorizations (as
hereinafter defined) exceeds one tenth of one percent (.1%) of the
total Residential Service PIC Authorizations obtained by TechWave
hereunder, Qwest may terminate TechWave's right to promote the sale
of, and solicit orders for, Residential Services under this
Agreement without further liability hereunder. A PIC Authorization
shall be deemed to be a "Deficient PIC Authorization" if it:
i) results in any form of dispute, controversy or complaint; or
ii) has the same type of deficiency, error, mistake or other
characteristic that gave rise to any PIC Authorization that resulted
in any actual dispute, controversy or complaint. A PIC Authorization
shall not be considered to be a Deficient PIC Authorization if the
only reason that it would otherwise have been considered to be a
Deficient PIC Authorization is based solely upon the form provided by
Qwest. A PIC Authorization shall also not be considered to be a
deficient PIC Authorization if TechWave has obtained a legitimate PIC
Authorization.
c) In the event a local exchange company ("LEC") or any governmental
body assesses any charge for invalid PIC Authorizations obtained
through TechWave, in addition to indemnifying Qwest for any such
charge, TechWave shall pay to Qwest a Qwest management fee of [ * ]
per invalid PIC Authorization, provided however, TechWave shall
have no obligation under this sentence if the invalid PIC
Authorization resulted from the format of the PIC Authorization
provided by Qwest to TechWave. In addition, Qwest shall chargeback
to TechWave all Usage Commissions and any other payments previously
made to TechWave in connection with any such invalid PIC
Authorization. Payment for said charges may be withheld from
commissions otherwise payable hereunder.
d) Upon the request of Qwest, TechWave shall provide to Qwest, the
LEC, or the applicable governmental body, at TechWave's expense,
any documentation required regarding the PIC selection or PIC
Authorization for Residential Service Customers sold hereunder. In
addition, TechWave shall promptly and in good faith cooperate with
Qwest, the LEC and the applicable governmental body in attempting
to resolve all PIC selection and PIC Authorization disputes.
e) TechWave shall provide, at TechWave's cost, a copy of "QWEST'S
POLICIES AND PROCEDURES REGARDING SLAMMING PREVENTION", including
an "Acknowledgement" form as set forth in Exhibit 4(e), of this
Agreement, to all employees, agents, contractors or independent
distributors involved in soliciting orders for the Residential
Services. TechWave shall have each such person review such policy
and return to TechWave a signed "Acknowledgment" form, indicating
that they understand and will comply with such policy. TechWave
agrees to produce a copy of the signed Acknowledgment form within
forty eight (48) hours of Qwest's request for any person involved
in soliciting orders for Residential Services.
* CONFIDENTIAL TREATMENT REQUESTED.
2
EXHIBIT 2(b)
5) CERTAIN DEFINITIONS
a.) Billed Residential Revenue is defined as the amount billed to
Residential Service Customers for the Residential Services sold
in the Territory pursuant to this Agreement including Qwest
Surcharges and excluding taxes, Mandated Surcharges, installation
charges and local exchange company charges.
b.) Qwest Surcharges shall mean monthly recurring subscription fees or
enrollment fees.
c.) Mandated Surcharges shall mean government or LEC charges passed
through by Qwest to the Residential Service Customer essentially
without xxxx-up, including but not limited to PICC charges and
universal service fund charges. Qwest Surcharges and Mandated
Surcharges may be combined into one charge on a Residential Service
Customer's xxxx.
d.) Commissionable Residential Revenue shall mean Billed Residential
Revenue less an amount, either the Initial Holdback Percent or the
Adjusted Holdback Percent, as applicable, for estimated
uncollectables, chargebacks, credits and LEC holdbacks. The Initial
Holdback Percent is [ * ]. Commissionable Residential Revenue shall
not include actual uncollectibles, chargebacks, credits or LEC
holdbacks.
6. INSTALLATION AND USAGE COMMISSION
a.) After the aggregate amount of Commissionable Residential Revenue for
Customers obtained by TechWave exceeds [ * ] (the "Residential
Threshold Amount"), Qwest shall pay TechWave [ * ] for each newly
installed 1+ Residential Service Customer in the Territory obtained
by TechWave hereunder upon said Customer's First Usage, provided
said First Usage is within one hundred twenty (120) days from
installation of said Customer phone number ("Installation
Commission(s)"). "First Usage" shall be defined as the first call on
a PIC'd line using Residential Services. Neither Installation
Commissions nor Usage Commissions shall be paid for any person that
is an existing Qwest Customer or for stand alone calling card or
Home 800 services. Qwest shall not pay more than one Installation
Commission on the sale of any particular Customer phone number or
"ANI".
b.) After the aggregate amount of Commissionable Residential Revenue for
Customers obtained by TechWave exceeds the Residential Threshold
Amount, Qwest shall pay TechWave a [ * ] commission on
Commissionable Residential Revenue that is in excess of the
Residential Threshold Amount for Residential Service Customers who
remain on the Residential Service a minimum of thirty (30) days from
First Usage ("Usage Commission(s)"), provided however, ISP Services
and Paging Services shall be paid [ * ] the first 12 months of this
Agreement and [ * ] thereafter. Usage Commissions shall be payable
only during the term of this Agreement and until the earlier of i)
twelve (12) months from the date of termination of this
* CONFIDENTIAL TREATMENT REQUESTED.
3
EXHIBIT 2(b)
Agreement and ii) the date the amount of commissions otherwise
payable hereunder is [ * ] or less a month, provided in all
events TechWave is not in default of its obligations under the
first sentence of Section 3.a. of this Exhibit. No Usage
Commission shall be payable following termination by Qwest
pursuant to Section 11.a.i or ii of the Agreement. Qwest shall
not pay Installation Commissions for upgrades of service.
c.) So long as Qwest is paying commissions based upon Commissionable
Residential Revenue, Qwest may periodically review and adjust
once annually the Holdback Percent to reflect Qwest's
experience with uncollectibles, chargebacks, credits and LEC
holdbacks ("Adjusted Holdback Percent"). The Adjusted Holdback
Percent shall not result in an increase to the previous Adjusted
Holdback Percent or Holdback Percent, as applicable, by more than
[ * ].
d.) Qwest may periodically perform a "true up" to compare the actual
amount collected from Residential Service Customers ("Collected
Residential Revenue") to Commissionable Residential Revenue and
"charge back" or pay TechWave the difference between commissions
already paid and what would have been paid on Collected
Residential Revenue. The last month's payment of commissions
hereunder may be withheld no more than three (3) months so that
the final "true up" may be performed. Qwest reserves the right to
set off from commissions any amount due to Qwest by TechWave
under this Agreement or otherwise.
e.) Qwest may, upon thirty (30) days prior written notice to
TechWave, pay commissions based on Collected Residential Revenue
instead of Commissionable Revenue.
7. CHURN RATE
If the "Churn Rate" is greater than a number determined pursuant to this
Agreement ("Maximum Churn"), Qwest may reduce Usage Commissions upon written
notice to TechWave, provided however that any such change may not be effected
any more frequently than every six (6) months and that no such individual
reduction in Usage Commission shall be greater than [ * ] of the
then existing Usage Commission. "Churn Rate" shall be defined as the number
of Residential Service Customers changing its PIC from Qwest within thirty
(30) days of PIC confirmation of service divided by the number of Residential
Service Customers confirmed during a Measuring Period. A Measuring Period is
any defined interval of time not less than thirty (30) days. Upon receipt of
written notice from Qwest, TechWave shall have thirty (30) days to "cure" by
maintaining, during such 30 day cure period, the Churn Rate equivalent to or
less than the Maximum Churn and achieving a Churn Rate for all new
Residential Service Customers in a Measuring Period during such 30 day cure
period equivalent to or less than the Maximum Churn. Upon 30 days prior
written notice to TechWave, Qwest may change the Maximum Churn, provided
however that Qwest may make such a change no more frequently than every six
(6) months and further provided that no such change shall reduce the Maximum
* CONFIDENTIAL TREATMENT REQUESTED.
4
EXHIBIT 2(b)
Churn by more than [ * ]. The Maximum Churn as of the date of this Agreement
shall be [ * ].
8. BILLING RATE
If the "Billing Rate" is less than [ * ] per month, Qwest may reduce Usage
Commissions upon written notice to the TechWave, provided however that Qwest
may make such a change no more frequently than every six (6) months and
further provided that no such change shall reduce the Usage Commissions by
more than [ * ] of the then existing Usage Commission rate. "Billing Rate"
shall be defined as Billed Residential Revenue as measured over a calendar
month divided by the number of Residential Service Customers measured over
the same calendar month who had PIC'd Residential Service during at the
beginning of the calendar month and First Usage. TechWave shall have thirty
(30) days from receipt of such notice to "cure" by increasing the Billing
Rate to [ * ] or more per month as measured over the 30-day cure period.
9. PAYMENT OF COMMISSIONS
Installation Commissions will be paid by Qwest approximately fifteen (15)
days following the availability of the First Usage occurrence report (but in
no event longer than thirty (30) days following the month of installation),
as long as First Usage occurs no later than one hundred twenty (120) days
after install by Qwest. Usage Commissions shall be paid by Qwest
approximately forty-five (45) days following the end of the month in which
the Commissionable Revenue is billed.
10. TechWave's nonexclusive territory ("Territory") shall be the contiguous
forty-eight states of the Continental U.S. (excluding exchanges of members of
the National Exchange Carrier Association, commonly known as "NECA", and the
United States Independent Telephone Company organization, commonly known as
"USINTELCO"). In the event Qwest begins permitting other similarly situated
distributors to sell Qwest Residential Services in either Alaska or Hawaii,
then Qwest agrees to include such state to the Territory, provided however
that commissions for sales in any such addition to the Territory may, in
Qwest's discretion, differ from those set forth herein.
11. The term "Residential Services" shall include:
1. 1+ (online/credit card billed) services - $.09/min. (interstate) no
monthly fee (PICC and USF charges apply) and $.05/min. (interstate),
$14.95 monthly fee
2. Associated calling card and international services
3. ISP Services - $19.95/month standalone and $14.95/month with Qwest
1+ service
4. Paging - Service Plans- $9.95/month (numeric), $24.95/month (text) -
Equipment with products - Top Display $49.95, Numeric Side Display
$59.95 and Text $79.95
5. Click to Fax and Click to Conference t (when available)
* CONFIDENTIAL TREATMENT REQUESTED.
5
EXHIBIT 2(b)
6. Wholesale ISP Service (when available and at its fully loaded cost)
12. All Residential Services and rates will be provided in accordance with
Qwest's tariffs and are subject to change. Qwest reserves the right to add to
or delete from the Residential Services as may be required from time to time.
Tariffs relating to the Residential Services may be changed by Qwest at its
sole discretion.
6
EXHIBIT 2(c)
BUSINESS AFFINITY SERVICES
1. MARKETING SERVICE
TechWave and Qwest agree to jointly market Qwest's X.Xxx services
(on-line) ("Business Affinity Services"), to TechWave's business customers
in a manner consistent with Qwest's Co-Marketing program and at the times
Qwest and TechWave jointly determine to be appropriate.
2. QWEST'S RESPONSIBILITIES
2.1 Orders taken for customers shall not be binding to Qwest until an
authorized representative of Qwest accepts them in writing.
2.2 Qwest shall provide TechWave with monthly revenue reports listing
active Business Affinity Services customers.
3. TECHWAVE'S COMPENSATION
3.1 Qwest shall pay the TechWave commissions based on Business Affinity
Monthly Revenue as follows:
BUSINESS AFFINITY MONTHLY REVENUE COMMISSION*
$0-$3,000,000.............................[ * ]
$3,000,000+...............................[ * ]
* Commissions are payable from the first dollar of Business Affinity Monthly
Revenue; however, commission payments for a particular month will not begin
until the total commissions to be paid for such month exceed [ * ].
3.2 "Business Affinity Monthly Revenue" as used in this Agreement shall mean
the revenue collected in a month by Qwest for rendering the Business
Affinity Services to business customers of TechWave ("Collected
Revenue"); provided, however, that Business Affinity Monthly Revenue
shall exclude monthly recurring charges, taxes, installation charges,
surcharges, subscription fees paid to third parties or passed through
from third parties, equipment charges, and local telephone company
charges (including loop charges) and Qwest carrier service charges
(collectively, "Excluded Charges").
3.3 Payment of commissions shall be made within forty-five (45) days
following the end of the month in which the Services are rendered to
business customers of TechWave.
3.4 Qwest may calculate the amount of "Business Affinity Monthly
Revenue" based on "Billed Revenue" (as hereinafter defined) as
opposed to Collected Revenue. (As used herein, "Billed Revenue" shall
be defined as revenue due and owing from TechWave business customers
for Qwest's rendering of the Services to such business customers,
which revenue, although charged to business customers via billing
statements, has not been collected by Qwest.) In the event Qwest pays
commissions based on Billed Revenue, Qwest may periodically perform a
"True-up" (as hereinafter defined). As used herein, a "True-up" shall
1
* CONFIDENTIAL TREATMENT REQUESTED.
EXHIBIT 2(c)
be defined as a comparison of the difference between commissions paid
based upon Billed Revenue and the amount that would have been paid if
commissions were based upon Collected Revenue. In the event that the
commissions paid based upon Billed Revenue exceed the amount that
would have been paid based upon Collected Revenue ("Excess
Commissions"), TechWave will be subject to a "Chargeback" (as
hereinafter defined). As used herein, "Chargeback" shall be a
reduction, made in the month(s) following a True-up, in the amount of
commissions to be paid, which reduction shall be equivalent to the
amount of Excess Commissions. The last month's payment of commissions
hereunder may be withheld no more than [ * ] so that Qwest
may perform a final True-up.
3.5 If TechWave fully implements the Inbound Up Sell program, as
provided for in Exhibit 4, the Qwest-TechWave Marketing Plan, by July
30, 1999, then for a period of three (3) months from and after the
Program Launch Date, Qwest shall pay TechWave an additional
commission of [ * ] based on Business Affinity Monthly
Revenue.
2
* CONFIDENTIAL TREATMENT REQUESTED.
QWEST-TECHWAVE MARKETING PLAN
-------------------------------------------------
T
TechWave-Registered Trademark-
March 23, 1999
ride the light
--------------
QWEST-Registered Trademark-
TABLE OF CONTENTS
> INTRODUCTION..........................................................3
What is this marketing plan for?......................................3
What does this marketing plan contain? ...............................3
Last Revision Date....................................................3
A Reminder about Confidentiality and Risk Management..................3
Agreement/Sign Off....................................................3
PRODUCTS..................................................................4
Consumer Products.....................................................4
Business Products.....................................................6
Product Fulfillment/Collateral/Billing................................9
MARKETING PROGRAMS.......................................................11
WEBSITE PROGRAMS.......................................................11
Qwest Communications Center..........................................11
Personal Stores Program (MyShopNow)..................................14
Cross Merchandising: Up Sell and Cross Sell Programs.................16
Recommendation Program...............................................18
Website Advertising Programs.........................................20
E-MAIL PROGRAMS........................................................23
Electronic Receipt Program...........................................23
Online Direct Mail Program...........................................26
OTHER CONSUMER PROGRAMS................................................27
Quantum Club Program................................................27
Inbound Program.....................................................27
SOHO PROGRAMS..........................................................29
SOHO Survey Program - Online........................................29
SOHO Tradeshow Program..............................................30
SOHO Merchant Center - Online.......................................31
DISTRIBUTOR PROGRAMS...................................................32
Distributor Program - TechWave Sales Force..........................32
ADMINISTRATION PLAN......................................................33
Contacts.............................................................33
Team Coordination/Structure..........................................33
Change Request Process...............................................33
Indoctrination.......................................................33
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Revised: April 13, 1999
> INTRODUCTION
UNDERSTANDING AND AGREEMENT OF THE MARKETING PROGRAMS. . .
-----------------------------------------------------------------------------
WHAT IS THIS MARKETING PLAN FOR?
This manual is divided into separate sections that address each marketing
component of the TechWave/Qwest LOI. These sections are further divided by
program so there is a definite roadmap and plan for implementation. By
Signing Off on this agreement, both companies agree to the scope and
understanding of each marketing program.
WHAT DOES THIS MARKETING PLAN CONTAIN?
Products -- Business and Consumer products for distribution
Marketing Programs -- Consumer and Business distribution marketing,
operational and program planning templates.
Administration Plan -- Methods for communicating program changes, Team
Contacts.
LAST REVISION DATE
This document was last revised on APRIL 13, 1999.
A REMINDER ABOUT CONFIDENTIALITY AND RISK MANAGEMENT. . .
Partner relationships are sensitive and must be given extra consideration
given the competitive nature of our industry. Please recognize the binding
nature and responsibilities you have as an employee of Qwest/TechWave under
the mutually signed Non Disclosure Agreement. Information about each company
and the terms of their relationship with each other should only be shared on
a need to know basis with internal employees to accomplish the program and
implementation of the distribution vehicles, using your best judgment.
AGREEMENT/SIGN OFF
By signing, each company agrees to fulfill the obligations required for each
marketing programs outlined in this document.
Qwest: Date:
------------------------------------ ---------------
TechWave: Date:
--------------------------------- ---------------
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Page 3
Revised: April 13, 1999
- PRODUCTS
CONSUMER AND BUSINESS PRODUCTS DISTRIBUTED BY TECHWAVE
-----------------------------------------------------------------------------
CONSUMER PRODUCTS
LOI LANGUAGE
TECHWAVE'S MARKETING AND SELLING OF QWEST CONSUMER SERVICES WOULD BE IN
ACCORDANCE WITH THE TERMS OF QWEST'S STANDARD REPRESENTATIVE (AGENT)
AGREEMENT;
1+ PRODUCTS
Qwest will sell 1+ (interstate and intrastate long distance) products on the
TechWave websites.
- Qwest will provide competitive information to TechWave for consumer
education.
- Qwest will provide intrastate rate charts to TechWave so that
consumers can look up their intrastate rates by zip code.
- Qwest will work with TechWave to create basic calling information to
develop savings example (e.g. avg. call times, etc.).
Below are some of the features and benefits of the product set:
- 9 CENTS/NO FEE: 24x7 RATES AT 9 CENTS/MINUTE.
- 5 CENTS/$14.95: 24X7 RATES AT 5 CENTS/MINUTE.
- 30 CENTS CALLING CARD RATE: NO SURCHARGES, LOW FLAT RATES.
- EXACT BILLING (AFTER THE FIRST MINUTE)/NO FEE 800#: EXACT BILLING
SAVES ON AVERAGE 10% OVER FULL MINUTE ROUNDING
- STANDARD 4-HOLIDAY PROMOTION: THE HOLIDAY PROMOTION IS 30
MINUTES/HOLIDAY AT 1 CENT
- STANDARD 90 MINUTES AT 1 CENT/MINUTE PROMOTIONS: THESE PROMOTIONS
APPLY TO NO FEE 800 AND CALLING CARD (FIRST USAGE IS AT 1 CENT)
- CO-BRANDED FULFILLMENT/CALLING CARDS: THE TECHWAVE/QWEST BRANDED
CALLING CARD FEATURES INDUSTRY LEADING COMPONENTS LIKE SPEED DIAL LIST,
VOICEMAIL, AND CONFERENCE CALLING.
- CO-BRANDED/CREDIT CARD/DIRECT BILLING AND ONLINE BILLING: QWEST WILL
CO-BRAND ALL OF ITS DIRECT AND ONLINE BILLING.
- $1.93 PICC/USF CHARGES APPLY TO ALL 1+ PRODUCTS
- COMPETITIVE INTERNATIONAL RATES (X.XXXXX PRODUCT)
QWEST COMMUNICATIONS CORPORATION, RESERVES THE RIGHT TO CHANGE PRODUCTS.
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Page 4
Revised: April 13, 1999
ISP
Qwest will sell its ISP service on the TechWave site.
- Qwest will provide coverage maps and current POP city listings to
TechWave so that consumers can determine if they live in an area which
is covered by a local POP.
- Qwest will use commercially reasonable efforts, to work with TechWave
to develop a program to sell TechWave its ISP service at a wholesale
cost for TechWave to give to its high spending customers as a retention
promotion.
- Qwest will handle all fulfillment and shipping of the ISP product for
the orders that TechWave sends Qwest, however if Qwest sells the ISP to
TechWave, TechWave will be responsible for fulfillment.
Features and benefits of the ISP service include:
- $19.95/MONTH STANDALONE
- $14.95/MONTH BUNDLED: CONSUMER PAYS LESS WHEN THEY SIGN UP FOR ANY
QWEST LONG DISTANCE PLAN
- STANDARD 1ST MONTH FREE PROMOTION
- NO USAGE FEES OR CAPS
- 56K CONNECTIONS
- NETSCAPE PRODUCT INITIALLY, CHOICE OF IE5/NETSCAPE IN DEVELOPMENT.
MACINTOSH VERSIONS ARE NOT YET BEING PLANNED.
- QWEST BRANDED INITIALLY
PAGING
Qwest will sell its paging products via the TechWave online programs.
[ * ] All pagers are Motorola products.
- Qwest will provide TechWave with artwork of the product, as well as
coverage information by zip code.
- Qwest will handle all of the programming and fulfillment of the pager
orders.
Features and benefits of the Paging service include:
- $9.95/MONTH (NUMERIC), $24.95/MONTH (TEXT)
- FREE VOICEMAIL/TOLL FREE ACCESS NUMBER AND PIN
- 50% OF FIRST TWO MONTH SERVICE
- NO PER MESSAGE USAGE FEES OR CAPS
- QWEST BRANDED
- PRODUCTS: NUMERIC TOP DISPLAY, $49.95; NUMERIC SIDE DISPLAY, $59.95;
TEXT, $79.95
QWEST COMMUNICATIONS CORPORATION, RESERVES THE RIGHT TO CHANGE PRODUCTS.
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Page 5
Revised: April 13, 1999
* CONFIDENTIAL TREATMENT REQUESTED.
ENHANCED SERVICES
Qwest will sell/provide its online products via the TechWave site (when
available).
These products include:
- SEND A PAGE: USERS CAN SEND PAGES TO QWEST PAGING CUSTOMERS VIA AN
ONLINE GUI.
- CLICK TO CONFERENCE: QWEST PROVIDES A CONFERENCE CALLING SERVICE,
WHERE CUSTOMERS CAN SET UP THE CALL ONLINE VIA AN ONLINE ADDRESS BOOK.
CONSUMERS ARE BILLED EITHER TO THEIR LONG-DISTANCE XXXX OR TO THEIR
CREDIT CARD. THERE IS NO NEED TO DEAL WITH OPERATORS, CODES OR ADVANCE
SCHEDULING. A FLAT RATE OF 25-CENTS PER MINUTE FOR EACH LINE IS
CHARGED FOR DOMESTIC CALLS. INTERNATIONAL RATES VARY
- CLICK TO FAX: IS AN ONLINE SERVICE THAT LETS CUSTOMERS FAX
INFORMATION BOTH DOMESTICALLY AND INTERNATIONALLY USING ONLY A
BROWSER AND AN INTERNET CONNECTION. SENDING A FAX THROUGH THE FAX
CENTER IS AS SIMPLE AS SENDING AN E-MAIL. A MINIMUM MONTHLY COST OF
$2.95 COVERS THE FIRST 19 PAGES. ADDITIONAL PAGES SENT THROUGHOUT THE
MONTH ARE ONLY 15-CENTS EACH.
PREPAID CARDS
Qwest will provide TechWave with a co-branded prepaid card program.
Qwest will also work with TechWave to develop an online distribution
program (no physical product) for use in personal stores. These programs
will be as an addendum to the existing agreement, between Qwest and
TechWave.
- PRICING TBD
- RECHARGEABLE
- INTERNATIONAL TERMINATION AND ORIGINATION (ORIGINATION IN 47 CITIES)
- CO-BRANDED
- LANGUAGE NEEDS TBD
QWEST COMMUNICATIONS CORPORATION, RESERVES THE RIGHT TO CHANGE PRODUCTS.
BUSINESS PRODUCTS
LOI LANGUAGE
TECHWAVE'S MARKETING AND SELLING OF QWEST BUSINESS SERVICES WOULD BE
IN ACCORDANCE WITH THE TERMS OF QWEST'S STANDARD REPRESENTATIVE
DISTRIBUTOR AND BUSINESS AFFINITY AGREEMENT;
X.XXX
X.xxx is a simple business calling solution for SOHO type customers who
have basic business calling needs and are very price sensitive. This
product will be sold via the TechWave websites and is targeted at those
business customers who spend less than [ * ] for business
communications.
- Qwest will provide competitive information to TechWave, as well as
basic demographic information so that TechWave can target the correct
segment of their customer database.
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Page 6
Revised: April 13, 1999
* CONFIDENTIAL TREATMENT REQUESTED.
Features and Benefits of the product:
- 7.9 CENTS/$25 MINIMUM: 24X7 RATES AT 7.9 CENTS/MINUTE (REQUIRES ONE
YEAR CONTRACT).
- 8.5 CENTS/$25 MINIMUM: 24X7 RATES AT 8.5 CENTS/MINUTE (MONTH TO MONTH
-NO CONTRACT).
- EXACT BILLING/SPONSOR PROGRAM/MONTH-TO-MONTH AGREEMENT/NO FEE 800#
- CO-BRANDED FULFILLMENT/CALLING CARDS
- 100% SWITCHED
Q.GUARANTEE/WEB HOSTING/DIA
These products are for the more complex business. They will be sold via the
TechWave sales force direct to merchants and retailers. Qwest will provide
all sales material needed to sell the product. This product is targeted at
those accounts that are expected to spend more than [ * ], or those
that have more complex data needs.
- PRICING BASED ON USAGE AND COMMITMENT LEVELS. TYPICALLY 5-6
CENTS/MINUTE.
- IP/FRAME/PRIVATE LINE/TELECONFERENCING/BROADCAST FAX/IVR SERVICES
- INTL TOLL FREE AND DOMESTIC TOLL FREE/EXACT BILLING/GUARANTEED RATES
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
JOINT RESPONSIBILITIES/PROGRAM ASPECTS
- Qwest and TechWave will work together to create new offer and product
ideas, when applicable.
QWEST RESPONSIBILITIES
- Qwest will be responsible for communicating new product information to
TechWave. TechWave will be responsible for communicating timing and
informational needs to Qwest regarding website copy changes, etc. See
Administration section for more.
- Qwest will provide materials for TechWave customer service training
for all online products.
- Qwest to provide international rates to TechWave.
- Qwest to provide Telco glossary to TechWave for internal training.
- Business distributor product training for TechWave professional
services will be handled separately.
TECHWAVE RESPONSIBILITIES
- TechWave will send a confirmation e-mail to each customer that signs
up with Qwest service. This e-mail will contain the TPV information so
the customer can call and verify their order in those states where
applicable.
- TechWave will create offers and premiums to keep the Qwest products
"fresh" and compelling for the consumer.
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Page 7
Revised: April 13, 1999
* CONFIDENTIAL TREATMENT REQUESTED.
PRODUCT FULFILLMENT/COLLATERAL/BILLING
LOI LANGUAGE
QWEST WOULD PROVIDE TECHWAVE WITH THE FOLLOWING SERVICES, AND BRANDING;
- PROVIDE TECHWAVE WITH CO-BRANDED CONSUMER FULFILLMENT AND CALLING
CARDS FOR ALL RESIDENTIAL AND BUSINESS SERVICES;
- PROVIDE TECHWAVE WITH CO-BRANDED BILLING FOR ALL QWEST RESIDENTIAL
SERVICES SOLD THROUGH XXXXXXX.XXX AND OTHER AGREED UPON MARKETING
PROGRAMS;
OVERVIEW
The TechWave/Qwest program is reinforced by co-branded joint marketing
campaigns. From the website, to the fulfillment, and even to the product
offer, the consumer will be presented with a tightly integrated
communications offer that bears the trademarks of both companies. This
section deals with the artwork, copy, and implementation of the co-branding
process.
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
QWEST RESPONSIBILITIES/PROGRAM ASPECTS
- Qwest needs approximately 90 days to design/implement/test co-branded
fulfillment.
QWEST RESPONSIBILITIES
- Qwest has responsibility to design - with TechWave input - the
co-branded fulfillment kits for its products.
- Qwest will submit mock ups and final product to TechWave for review.
- Qwest ensures that all materials are approved by branding, legal and
regulatory teams.
- Qwest will implement all co-branded fulfillment programs for its
services.
- Qwest will implement all co-branded invoicing for TechWave customers.
- Qwest will provide the applicable co-branded services as long as all
sales performance levels are maintained.
TECHWAVE RESPONSIBILITIES
- TechWave will send a confirmation e-mail to each customer that signs
up with Qwest service. This e-mail will contain the TPV information so
the customer can call and verify their order in those states where
applicable.
- TechWave will send a follow-up confirmation e-mail to customers who
have not TPV'd within 30 days of PIC submission to Qwest. A report is
provided to all distributors via COINS regarding TPV activity. Please
check the TPV folder for daily files regarding specific TPV held
orders. There are 2 files that are provided. [ * ]
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Page 8
Revised: April 13, 1999
* CONFIDENTIAL TREATMENT REQUESTED.
[ * ]
- Review any changes to fulfillment (after launch).
- TechWave will need to supply logos, copy and graphics necessary for a
co-branded card, invoice, and welcome kit.
- TechWave must supply customized messages for co-branded invoicing at
least 60 days prior to expected implementation and in accordance with
the parameters set up by the direct billing team within Qwest.
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Page 9
Revised: April 13, 1999
* CONFIDENTIAL TREATMENT REQUESTED.
OVERVIEW FULFILLMENT PROCESS FLOW--LONG DISTANCE
Customer fills Customer order Q runs edit/reject Order pending
out online LoA received by Q on record. Q TPV. Orders
reworks PIC matched against
freeze, and basic TPV files.
edit problems
TW sends
confirmation
e-mail and TPV
phone #
Customer calls
TPV Center
After TPV
match, Q sends
order to LEC
Q ACTIVATES
CUSTOMER AND
SENDS FULFILLMENT
KIT SPECIFIC TO
TECHWAVE AND LEC returns
PRODUCT confirmed switch
FULFILLMENT PROCESS FLOW--ISP/PAGING
Customer fills Customer order Q runs edit/reject Q generates
out online order received by Q on record. unique
form Forwards order registration code
to fulfillment and sends
TW sends confirmation house. If LD is product to
e-mail and shipping ordered, see customer. Pager
expectations fulfillment is activated by Q
process above.
CUSTOMER
RECEIVES CD OR
PAGER AND
ACTIVATES ISP
ONLINE (VIA
CREDIT CARD).
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Page 10
Revised: April 13, 1999
-- MARKETING PROGRAMS
CONSUMER AND BUSINESS MARKETING PROGRAMS
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
OVERVIEW
This section addresses each agreed upon marketing program. The LOI language
will be referenced at each subsection. Most of these marketing programs
pertain to the TechWave websites, however some of the business joint
marketing programs are outside of that medium.
WEBSITE PROGRAMS
QWEST COMMUNICATIONS CENTER (QCC)
LOI LANGUAGE
TechWave would create and maintain, without limitation, the following
"Marketing Programs";
-- a "Qwest Communications Center", a telecommunications shopping category,
that would offer the sale of Qwest business and consumer services and which
would be developed and maintained by TechWave, subject to Qwest input and
with Qwest's control over the Qwest services offered;
OVERVIEW
For the term of the contract, the Qwest Communications Center would be the
online "store" for Qwest products and services. Links from advertising and
other on-line programs for Qwest services would send the user to this online
store. The store is a permanent component of XxxxXxx.xxx and is linked
severally to TechWave websites (see advertising programs below).
EXPOSURE
This will be seen by all unique visitors ShopNow, BuySoftware and other
future sites. Current unique visitors are 2.7 million/month and growing
significantly.
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
JOINT RESPONSIBILITIES/PROGRAM ASPECTS
-- The design of the Qwest Communications Center (QCC) will be a joint
effort between Qwest and TechWave, following the basic online templates
used by Qwest but displayed in a manner consistent with the other
shopping categories on XxxxXxx.xxx.
-- The QCC will be accessed from the front pages of
XxxxXxx.xxx/Xxx/Xxxxxxxx.xxx and the TechWave personal stores (My
XxxxXxx.xxx) via banners, logos and hyperlinks.
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Revised: April 13, 1999
-- The QCC makes up the service offering section of the telecommunications
shopping category (created by TechWave). It will include all consumer
products, as well as the SOHO X.xxx product.
-- Consumer will enter data into Qwest order form. Related product
information will also be available, as well as online enhanced features.
Orders will be sent directly to Qwest for processing. TechWave will send
e-mail confirmation upon order submission, with TPV all necessary
information, on a state by state basis.
QWEST RESPONSIBILITIES
-- Qwest will use commercially reasonable efforts to implement its account
management features into the QCC. This will require a shell out to Qwest
servers. All other information will be maintained on the TechWave
servers.
-- Maintenance of the promotions and products in the store is Qwest
responsibility.
-- Qwest will provide keywords for Qwest products for the TechWave product
search database.
-- Qwest will provide relevant competitive information and Qwest press
release information for the dissemination of information to TechWave
shoppers.
-- Qwest will provide intrastate rates to TechWave.
-- TechWave will be given access to Qwest orders and reporting via the
online consumer COINS system. Qwest will provide all training regarding
the usage of this product. Qwest to provide TechWave with 800 number for
PIC freeze for incremental sales campaign.
-- Qwest will work with TechWave to develop a warm transfer capability from
the TechWave service center for Tier 2 customer service issues.
TECHWAVE RESPONSIBILITIES
-- TechWave will send a confirmation e-mail to each customer that signs up
with Qwest service. This e-mail will contain the TPV information so the
customer can call and verify their order in those states where
applicable.
-- TechWave will place Qwest branding in accordance with the website
advertising discussed later in this marketing plan.
-- TechWave is responsible for final implementation and communicating the
required program elements to Qwest, for Qwest approval.
-- Implementation of the programs will be handled by TechWave.
-- Implementation of promotional and content changes is TechWave's
responsibility.
-- TechWave will send QCC activity reports to Qwest on a monthly basis
which will show take rates by programs and product. These reports may
include: number of shoppers/number of visitors, number of customers,
referring URL by program.
-- The QCC site resides on TechWave's servers.
-- TechWave to create a "CALL CALCULATOR" based on calling information and
rate information supplied by Qwest. This will be a simple analyzer
showing savings via the Qwest programs.
Below is an example of the Center consistent with the general and agreed upon
co-branding and joint marketing approach (as seen from within the personal
store section).
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Revised: April 13, 1999
[GRAPHIC, REPRESENTATIVE OF THE COMPUTER SCREEN]
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Page 13
Revised: April 13, 1999
PERSONAL STORES PROGRAM (MYSHOPNOW)
LOI LANGUAGE
TechWave would create and maintain, without limitation, the following
"Marketing Programs";
-- Incorporate into its existing "Personal Stores Network" Qwest's terms
and conditions and the ability to switch consumers to Qwest residential
1+ service by acceptance of the personal store, subject to other
considerations by both parties and approval by the parties' legal
departments;
Qwest would provide TechWave with the following services, and branding;
-- for all "Personal Stores" provide customers the ability to hyperlink to
the Qwest designated site to handle online maintenance of the customer's
1+ residential xxxx "on-line billing";
OVERVIEW
The intent of the Personal Stores Program (aka MyShopNow) is to include an
Auto Sign Up Program to simplify the sign up for Qwest consumer services by
bundling the T&Cs within the TechWave Personal Store sign-up process(1).
This allows the personal store to be built with the links to account features
and the Qwest online services such as faxing, conference calls, etc.
EXPOSURE
This will be offered to all existing 1 million store members and new store
members ramping to an estimated 5 million by Year End 1999.
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
JOINT RESPONSIBILITIES/PROGRAM ASPECTS
-- Qwest will be a permanent sponsor (for the term of the contract) on the
front page of personal stores). Links will send the user to the QCC.
-- The Qwest signup will be part of the initial personal store Q&A form
when personal stores are set up by the customer. Qwest sign up will be
an optional component allowing customers to have a Personal
Communication Center within their site which allows them to view their
bills and take advantage of the Online Qwest products such as faxing,
etc.
-- Qwest and TechWave will need counsel collaboration for the Auto Sign Up
program.
QWEST RESPONSIBILITIES
-- Qwest will provide the Consumer T&Cs to TechWave that are needed for the
Auto Sign Up program.
----------------------
[ * ]
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Page 14
Revised: April 13, 1999
* CONFIDENTIAL TREATMENT REQUESTED.
TECHWAVE RESPONSIBILITIES
-- TechWave will send a confirmation e-mail to each customer that signs up
with Qwest service. This e-mail will contain the TPV information so the
customer can call and verify their order in those states where
applicable.
-- TechWave will send Qwest activity reports indicating how many numbers
are being driven back to the QCC via the links.
-- TechWave is responsible for the technical implementation of this
program.
-- TechWave will place Qwest branding in accordance with the website
advertising discussed later in this marketing plan.
-- TechWave will provide a "Check Your Long Distance" section within the
"My Account" portion of the personal store. A Qwest offer will appear
for users without Qwest LD.
Below is an example of the Personal Stores consistent with the general and
agreed upon co-branding and joint marketing approach:
[GRAPHIC, REPRESENTATIVE OF THE COMPUTER SCREEN]
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Revised: April 13, 1999
CROSS MERCHANDISING: UP SELL AND CROSS SELL PROGRAMS
LOI LANGUAGE
TECHWAVE WOULD CREATE AND MAINTAIN, WITHOUT LIMITATION, THE FOLLOWING
"MARKETING PROGRAMS";
- AN "UP-SELL PROGRAM: WHEREBY IT WOULD INTERJECT A QWEST OFFER INTO THE
XXXXXXX.XXX SHOPPING CART CHECKOUT PROCESS FOR OTHER NON QWEST PRODUCTS
AND SERVICES, WHERE CONSUMERS WOULD BE PRESENTED A QWEST OFFER, BUT NOT
BE REQUIRED TO PURCHASE, THAT WOULD ALLOW CUSTOMERS TO SIGN UP FOR
QUEST SERVICES BEFORE COMPLETING THE ONLINE TRANSACTION, SUBJECT TO OTHER
CONSIDERATIONS BY BOTH PARTIES;
- A "CROSS MERCHANDISING" CAMPAIGN THAT COULD PROMOTE CERTAIN TECHWAVE
PRODUCTS WITH CERTAIN QWEST SERVICES, EXAMPLE WOULD INCLUDE, WITHOUT
LIMITATION, BUY A COMPUTER AND RECEIVE QUEST SERVICE;
OVERVIEW
The cross merchandising programs ensure that every shopper at the
TechWave e-commerce sites will see an offer for Qwest products. This is
important so that Qwest is presented when the consumer is in the
"buying mode."
EXPOSURE
This will be offered to [ * ] ShopNow/BuySoftware/MyShopNow purchasers
at the time of check out. Currently this transactional volume ensures
that a majority of the current50,000 purchasers/month will be exposed
to the program (this number is growing significantly)..
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
JOINT RESPONSIBILITIES/PROGRAM ASPECTS
- The Qwest offer will be presented below the checkout area, along with
other suggested product cross and up sells. This soft sell approach adds
validity when other shoppers are cited as the source (e.g. other
shoppers also bought Qwest). The program is passive in the sense that
there is no direct interjection of an offer.
- When consumer elects to purchase they are taken directly to a product
LOA page (not the overall QCC).
- [ * ]
- The Qwest offer will appear in the top 3 lines of the suggestion list.
- Qwest and TechWave will test several offers and approached to the
Upsell and Cross Sell program to maximize the return.
QWEST RESPONSIBILITIES
- Quest will approve the creative and customer presentation of the Up
Sell and Cross Sell Programs as they relate to the presentation of
Qwest services.
TECHWAVE RESPONSIBILITIES
- TechWave will send a confirmation e-mail to each customer that signs
up with Qwest service. This e-mail will contain the TPV information so
the customer can call and verify their order in those states where
applicable.
------------------------------------------------------------------------------
Page 16
Revised: April 13, 1999
* CONFIDENTIAL TREATMENT REQUESTED.
- TechWave will place Qwest branding in accordance with the website
advertising discussed later in this marketing plan.
- TechWave is responsible for the technical implementation of this
program.
- TechWave will send Qwest activity reports indicating program
performance.
Below is an example of the Up-sell/Cross-sell presentation concept consistent
with the general and agreed upon co-branding and joint marketing approach:
[GRAPHIC]
------------------------------------------------------------------------------
Page 17
Revised: April 13, 1999
RECOMMENDATION PROGRAM
LOI LANGUAGE
TECHWAVE WOULD CREATE AND MAINTAIN, WITHOUT LIMITATION, THE FOLLOWING
"MARKETING PROGRAMS";
- [ * ]
OVERVIEW
[ * ]
EXPOSURE
This feature will be present on all MyShopNow pages. The consumer exposure is
similar to the unique website visits. No data yet on how many consumers
actually select the Recommendations Tab.
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
JOINT RESPONSIBILITIES/PROGRAM ASPECTS
- TechWave and Qwest will jointly develop the recommendation data and
behavior.
QWEST RESPONSIBILITIES
- Qwest will approve the creative and customer presentation of the
Recommendation Program, as it relates to Qwest services.
- Qwest is responsible for communicating offer changes to TechWave.
TECHWAVE RESPONSIBILITIES
- TechWave will send a confirmation e-mail to each customer that signs
up with Qwest service. This e-mail will contain the TPV information so
the customer can call and verify their order in those states where
applicable.
- TechWave will place Qwest branding in accordance with the website
advertising discussed later in this marketing plan.
- TechWave is responsible for the technical implementation of this
program.
- TechWave will send activity reports to Qwest indicating program
performance.
- TechWave will include Qwest products in any expansion of the
Recommendation engine (i.e. to ShopNow, e-mail vehicles, etc.)
Below is an example of the Recommendation presentation concept consistent
with the general and agreed upon co-branding and joint marketing approach
------------------------------------------------------------------------------
Page 18
Revised: April 13, 1999
* CONFIDENTIAL TREATMENT REQUESTED.
[GRAPHIC]
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Page 19
Revised: April 13, 1999
WEBSITE ADVERTISING PROGRAMS
LOI LANGUAGE
TECHWAVE WOULD CREATE AND MAINTAIN, WITHOUT LIMITATION, THE FOLLOWING
"MARKETING PROGRAMS";
- A BANNER ADVERTISING CAMPAIGN ON ITS XXXXXXX.XXX SITE AS WELL AS ALL
OTHER APPLICABLE TECHWAVE SITES PROMOTING THE QWEST SERVICES AND
ALLOWING FOR A HYPERLINK TO THE QWEST PAGE;
- AN ANIMATED BANNER AD (SIMILAR TO POP-UP AD'S(2) CAMPAIGN THAT WOULD
ALLOW FOR THE USE OF TECHWAVE'S NEW PROGRAM SOFTWARE PLATFORM THAT
WOULD BE IMPLEMENTED WITHIN 120 DAYS, THAT WOULD COMMUNICATE A QWEST
OFFERING TO CONSUMERS WHO ARE SHOPPING ON THE XXXXXXX.XXX SITE AS WELL
AS ALL OTHER APPLICABLE SITES CONTROLLED BY TECHWAVE;
- A "BANNER ADVERTISING/POP UP AD" CAMPAIGN WITH ITS PRESENT PORTAL
ADVERTISING EFFORT WITH BOTH [*] AND [*] (3)AS WELL AS WITH FUTURE PORTAL
PARTNERS WITH A FREQUENCY OF [*] MONTHLY IMPRESSIONS, INCREASING TO A
MAXIMUM OF [*] MONTHLY IMPRESSIONS DURING THE TERM OF THE AGREEMENT.
QWEST WOULD HAVE THE RIGHT TO PURCHASE ADDITIONAL IMPRESSIONS ABOVE THE
[*] IMPRESSIONS PROVIDED BY TECHWAVE, DIRECTLY FROM TECHWAVE AT
TECHWAVE'S COST IF QWEST SO DESIRES.
TECHWAVE WOULD ADDITIONALLY PROVIDE QWEST WITH THE FOLLOWING SERVICES, AND
BRANDING;
- PROVIDE PERMANENT QWEST BRANDING DURING THE TERM OF THE AGREEMENT ON
THE FRONT PAGES OF XXXXXXX.XXX (ANCHOR BRAND), XXXXXXXXXXX.XXX
(PERMANENT LINK) AND PERSONAL STORES (PERMANENT SPONSOR);
- PLACE "POWERED BY QWEST" LOGOS, ON ALL TECHWAVE PAGES THAT THEY
CONTROL, AND MAKE THEM ACTIVE HYPERLINKS TO THE QWEST COMMUNICATIONS
STORE;
OVERVIEW
The Qwest/TechWave agreement will provide for aggressive joint marketing and
website banner/button and offer advertising. In addition to advertising on
the TechWave sites, Qwest will receive impressions with TechWave's
advertising partners. Qwest will also receive prominent logo placement on
TechWave pages.
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
JOINT RESPONSIBILITIES/PROGRAM ASPECTS
- TechWave and Qwest will develop a Service Level agreement regarding
advertising changes, as well as the related communication processes.
- Qwest will have prominent and permanent banner/button visibility on
the front pages of ShopNow/MyShopNow/BuySoftware websites (anchor
buttons).
- A "Powered by Qwest" logo will appear on each page next to the
TechWave logo. This logo will link to the QCC.
- The cost of external impressions is not funded by the Coop program as
are the other marketing vehicles.
--------------------------------
(2) TechWave and Qwest will mutually decide upon the style of advertising (e.g.
POP-UP) to use which is based upon such factors as TechWave's style guide and
industry feedback on customer responsiveness to various advertising methods.
The specific use of Pop-Up style may or may not be in the best interest of
both companies; in such case, alternative high profile/high impact ads will
be used.
(3) In the event that the TechWave relationship with [*] and [*] expires
prior to the end of the Qwest-TechWave Agreement, TechWave will make best
efforts to provide Qwest banner advertising/impressions via Internet partners
with similar high visibility and traffic patterns.
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Page 20
Revised: April 13, 1999
* CONFIDENTIAL TREATMENT REQUESTED.
- Animated logos are discouraged on the TechWave site, however some
amount of animation on the anchor buttons is acceptable. [ * ]
- Qwest and TechWave will develop and determine the timing of a joint
press release (most likely when the site functionality is available).
QWEST RESPONSIBILITIES
- Qwest will be the exclusive carrier (as defined in the contract) in
the Telecommunications Category.
- Qwest will provide all necessary artwork and banner advertisements.
- Qwest will approve of all banner ads and Qwest branding as it related
to presentation of Qwest services and company logo.
- Qwest will supply keywords to TechWave for Product Search functions.
TECHWAVE RESPONSIBILITIES
- TechWave will send a confirmation e-mail to each customer that signs
up with Qwest service. This e-mail will contain the TPV information so
the customer can call and verify their order in those states where
applicable.
- TechWave will maintain hyperlinks and ensuring the banner links to the
correct web pages.
- TechWave will place "Powered by Qwest" logos on all pages where they
main copy privileges.
- TechWave will place anchor banner/buttons for the QCC on the front
pages of ShopNow/MyShopNow/BuySoftware.
- TechWave will place Qwest as the top merchant in the communications
category.
- TechWave will send activity reports to Qwest results of each each ad..
- TechWave will test banner advertising on the front pages of its sites,
but if results suffer this method of advertising will be revisited
(note: these banner ads are not the permanent buttons/logos mentioned
above).
Below are examples of the co-branding components consistent with the general
and agreed upon co-branding and joint marketing approach.
[GRAPHIC]
* CONFIDENTIAL TREATMENT REQUESTED.
[GRAPHIC]
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Page 22
Revised: April 13, 1999
E-MAIL PROGRAMS
ELECTRONIC RECEIPT PROGRAM
LOI LANGUAGE
TECHWAVE WOULD CREATE AND MAINTAIN, WITHOUT LIMITATION, THE FOLLOWING
"MARKETING PROGRAMS";
- AN "ELECTRONIC RECEIPT PROGRAM" WHEREBY IT WOULD SEND
CUSTOMERS WHO BUY PRODUCTS/SERVICES FROM ITS SITE, ELECTRONIC
CONFIRMATION OF THEIR TRANSACTION AND SUCH CONFIRMATION OR
"RECEIPT" WOULD CONTAIN A QWEST SERVICE OFFERING;
TECHWAVE WOULD ADDITIONALLY PROVIDE QWEST WITH THE FOLLOWING SERVICES, AND
BRANDING;
- SEND ELECTRONIC SALES CONFIRMATION TO CONSUMERS WHO WOULD SIGN UP
FOR QWEST SERVICE THROUGH THE TECHWAVE SITE;
OVERVIEW
The Electronic Receipt Program (E-Receipt) further strengthens the
Qwest/TechWave alliance by attaching a Qwest offer to each E-mail receipt
that goes out to recent purchasers as part of the TechWave Order Confirmation
process.
EXPOSURE
This offer is present on each e-mail confirmation receipt.
[ * ]
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
JOINT RESPONSIBILITIES/PROGRAM ASPECTS
- Qwest and TechWave are responsible for offer creation and
maintenance.
- The hypertext link embedded in the E-Receipt would send the
customer to the QCC or to the offer/product page.
- There are minor restrictions on this program for certain TechWave
partners.
QWEST RESPONSIBILITIES
- Qwest will approve the copy presentation of the E-Receipt Program
as it relates to the Qwest offer.
TECHWAVE RESPONSIBILITIES
- TechWave will send a confirmation e-mail to each customer that
signs up with Qwest service. This e-mail will contain the TPV
information so the customer can call and verify their order in those
states where applicable.
- TechWave will attach a Qwest offer at the end of each E-mail
receipt that it sends to buyers on ShopNow/MyShopNow/BuySoftware
websites.
- TechWave is responsible for all e-mailing activities.
- TechWave is responsible for the technical implementation
of this program
- TechWave is responsible for ensuring the E Mail receipts
link to the correct section of the QCC or product/offer LOA page.
--------------------------------------------------------------------------------
Page 23
Revised: April 13, 1999
* CONFIDENTIAL TREATMENT REQUESTED.
- TechWave to identify any communication restrictions of Qwest offers
to certain merchant customers.
- TechWave will send activity reports to Qwest indicating how many
numbers are being driven back to the QCC/product page by the program,
and how many are completing an order form.
Below are examples of the E-mail receipt program consistent with the general
and agreed upon co-branding and joint marketing approach.
[Graphic depicting screen shot of order confirmation email containing customer
services contact information, sample product imformation and billing
information.]
CONTINUED ON NEXT PAGE
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Page 24
Revised: April 13, 1999
[Chart]
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Page 25
Revised: April 13, 1999
ONLINE DIRECT MAIL PROGRAM
LOI LANGUAGE
TECHWAVE WOULD CREATE AND MAINTAIN, WITHOUT LIMITATION, THE FOLLOWING
"MARKETING PROGRAMS";
- AN "ONLINE DIRECT MAIL" CAMPAIGN, WHEREBY IT WOULD, ON A MONTHLY
BASIS, SEND AN HTML E-MAIL TO ALL OF ITS CUSTOMERS (XXXXXXX.XXX,
PERSONAL STORES AND TRY AND BUY SOFTWARE PROGRAM CUSTOMERS) PROMOTING
THE QWEST SERVICES AND AVAILABILITY OF THE SERVICES WITH THE INTENT TO
SOLICIT CUSTOMERS FOR QWEST;
OVERVIEW
The Online Direct Mail Program is a monthly e-mail touch of each TechWave
customer. The program reinforces the Qwest/TechWave alliance by trumpeting
the availability of Qwest services on TechWave websites. Each marketing offer
will be updated and will serve as a call to action to revisit the TechWave
shopping sites.
EXPOSURE
This offer is presented monthly to each customer in the TechWave database.
Currently TechWave has 1.2 Million customers who will participate initially
and will be ramping this program up.
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
JOINT RESPONSIBILITIES/PROGRAM ASPECTS
- The hypertext link embedded in the monthly e-mail directs the
customer to the QCC to obtain the offer/product.
- Qwest and TechWave are responsible for offer creation and
maintenance.
- The physical appearance of the program is similar to the E-mail
receipt program.
- Qwest offers will appear with other offerings in the mailing (i.e.
the e-mail will not be a solo Qwest offer).
- There is a 7 day turnaround time to insert new offers (specific
copy changes). New product/page design may take longer.
QWEST RESPONSIBILITIES
- Qwest will approve the copy presentation of the Direct E-mail
program as it relates to the Qwest offer.
- At a future date, and to the extent that Qwest has the ability to
scrub data lists based on email addresses, Qwest and TechWave will
address the need the Qwest to scrub database lists to filter current
Qwest customers.
TECHWAVE RESPONSIBILITIES
- TechWave is responsible for the technical implementation of this
program and facilitating the e-mail delivery.
- TechWave is responsible for maintaining hyperlinks and ensuring
the E-mails link to the correct section of QCC.
- TechWave will send mailing reports to Qwest indicating program
performance.
--------------------------------------------------------------------------------
Page 26
Revised: April 13, 1999
OTHER CONSUMER PROGRAMS
QUANTUM CLUB PROGRAM
LOI LANGUAGE
- QWEST WOULD PROVIDE TECHWAVE WITH THE FOLLOWING SERVICES, AND BRANDING;
- QWEST WOULD WORK WITH TECHWAVE TO IDENTIFY QUANTUM CLUB OPPORTUNITIES
FOR THE CO-MARKETING OF TECHWAVE SERVICES AS A PREMIUM OFFER FOR
QWEST., QUANTUM CLUB MEMBERS, SUBJECT TO OTHER CONSIDERATIONS BY
BOTH PARTIES;
OVERVIEW
By creating joint marketing programs within the Qwest Quantum Club, both
TechWave and Qwest can enjoy and leverage retention aspects of the Quantum
club and related cross-related offers.
EXPOSURE
The majority of Quantum club members and TechWave customers would receive
information about any eventual joint marketing programs that utilize the
Quantum club reward system. Parameters around the exposure will be determined
by both parties after meetings with the Qwest Retention Team to define
possible programs.
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
JOINT RESPONSIBILITIES/PROGRAM ASPECTS
- Qwest and TechWave will hold subsequent marketing meetings to
develop and explore co-marketing programs that take advantage of
the Quantum club system.
QWEST RESPONSIBILITIES
- Qwest will arrange a meeting to discuss the Quantum Club with
TechWave no more than 90 days after the launch of the Qwest/TechWave
programs.
TECHWAVE RESPONSIBILITIES
- TechWave will provide the initial "concepts" for integration of the
Quantum Club into the TechWave shopping environment.
INBOUND PROGRAM
LOI LANGUAGE
- NONE
OVERVIEW
Qwest and TechWave will create calling programs on inbound customer service
or informational calls. A Qwest offer upsell would be presented to TechWave
customers that call in to the TechWave service center.
--------------------------------------------------------------------------------
Page 27
Revised: April 13, 1999
EXPOSURE
The exact opportunity to attach Qwest offers to inbound calls is being
determined by TechWave.
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
JOINT RESPONSIBILITIES/PROGRAM ASPECTS
- Qwest and TechWave jointly develop the inbound call offer to
TechWave customers.
- Qwest and TechWave will have further discussions to develop the
operational aspects of the program since TechWave is using a 3rd
party call center.
QWEST RESPONSIBILITIES
- Qwest will provide any training that is required for the Inbound
program.
- Qwest will accept orders via the batch record system (GBUS) if
needed.
- Qwest will assist in writing and approving the inbound sales
scripts.
- Qwest will set up the TPV process for these sales.
TECHWAVE RESPONSIBILITIES
- TechWave will provide reporting to Qwest on program performance.
- TechWave will train all call centers.
- TechWave will ensure compliance with all FCC regulation regarding
telemarketing.
--------------------------------------------------------------------------------
Page 28
Revised: April 13, 1999
SOHO PROGRAMS
SOHO SURVEY PROGRAM - ONLINE
LOI LANGUAGE
TECHWAVE WOULD CREATE AND MAINTAIN, WITHOUT LIMITATION, THE FOLLOWING
"MARKETING PROGRAMS";
- DEVELOP A SOHO CUSTOMER PROFILE AND SHARE ALL RELATED SOHO DATA
WITH QWEST ABOUT SOHO SHOPPERS WHO PURCHASE PRODUCTS THROUGH ITS
SITES, AS WELL AS CUSTOMER FEEDBACK AND DATA ON CUSTOMERS WHO BUY
QWEST BUSINESS SERVICES ONLINE;
OVERVIEW
SOHO is an emerging and important market, given the typical high spending
demographic. Qwest and TechWave will explore how best to market to these
customers via a survey program.
EXPOSURE
To be determined by TechWave.
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
JOINT RESPONSIBILITIES/PROGRAM ASPECTS
- Qwest and TechWave will partner to gather SOHO data to better
understand how to market to and capture TAF/SOHO households.
- Qwest and TechWave will determine the profiling and survey
questions.
- Qwest and TechWave will determine the incentive for the SOHO
consumer to fill out the survey (e.g. free prepaid card).
QWEST RESPONSIBILITIES
- Qwest will be responsible for any offers needed, if applicable.
- Qwest will provide TechWave with SOHO demographic data and profiles
to help develop the survey program.
TECHWAVE RESPONSIBILITIES
- TechWave will be responsible for the technical implementation of
the program.
- TechWave will determine the placing of the survey to xxxxxx the
most positive and honest response.
- TechWave will recommend the operational and marketing plan for the
program.
- TechWave will communicate to Qwest the frequency of the survey (i.e.
how long it will run for).
- TechWave will share the results of the survey with Qwest.
--------------------------------------------------------------------------------
Page 29
Revised: April 13, 1999
SOHO TRADESHOW PROGRAM
LOI LANGUAGE
TECHWAVE WOULD CREATE AND MAINTAIN, WITHOUT LIMITATION, THE FOLLOWING
"MARKETING PROGRAMS";
- A NATIONAL TRADESHOW/SEMINAR CAMPAIGN ON E-COMMERCE FOR THE SOHO
MARKET PLACE WHERE QWEST WOULD BE THE FEATURED PROVIDER OF TELCO
SERVICES FOR THE SOHO MARKET PLACE AND QWEST WOULD HAVE THE OPTION
TO PARTICIPATE IN SUCH CAMPAIGN TO PROMOTE ITS SERVICES;
OVERVIEW
Qwest will have the opportunity to partner with TechWave to promote Qwest
technology and services as a simplified answer to the growing SOHO
marketplace. Qwest would be the featured communications company in such a
"road show."
EXPOSURE
To be determined by TechWave.
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
JOINT RESPONSIBILITIES/PROGRAM ASPECTS
- Qwest and TechWave will jointly target and develop a plan to
participate in a SOHO tradeshow.
- Qwest and TechWave agree to set an exploratory meeting to develop
and determine a SOHO tradeshow program within 90 days of contract
signature.
QWEST RESPONSIBILITIES
- TBD
TECHWAVE RESPONSIBILITIES
- TBD
--------------------------------------------------------------------------------
Page 30
Revised: April 13, 0000
XXXX XXXXXXXX XXXXXX - ONLINE
LOI LANGUAGE
- NONE
OVERVIEW
X.xxx and SOHO products can be leveraged in the Merchant Center of the
ShopNow site. This page is directed at merchants and potential merchants
interested in expanding their e-commerce and SOHO relationship with TechWave.
EXPOSURE
To be determined by TechWave.
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
JOINT RESPONSIBILITIES/PROGRAM ASPECTS
- Qwest and TechWave will work together to craft integrated SOHO offers
utilizing the X.xxx product.
- Both companies agree to meet and develop a plan for the merchant
center within 30 days of contract signature.
QWEST RESPONSIBILITIES
- Qwest will provide product information and demographics to assist
TechWave in the bundling of offers.
- Qwest is responsible for offer review and approval as it relates to
the presentation of X.xxx and Qwest services.
- Qwest will provide rate information and competitive information for
TechWave customer education and rate analysis.
- Qwest will handle all OE call backs to customers.
TECHWAVE RESPONSIBILITES
- TechWave will be responsible for the technical implementation of the
program.
- TechWave will determine the placing of the X.xxx product into the
Merchant center offerings.
- TechWave will provide reports to Qwest on the program performance.
-------------------------------------------------------------------------------
Page 31
Revised: April 13, 1999
DISTRIBUTOR PROGRAMS
DISTRIBUTOR PROGRAM - TECHWAVE SALES FORCE
LOI LANGUAGE
- DISTRIBUTOR - TECHWAVE ACTS AS THE SELLING AGENT AND COMPLETES THE END
TO END TRANSACTION...
OVERVIEW
TechWave will integrate Qwest business products such as IP products
(dedicated internet access, for example) and Q.guarantee into its product
portfolio, allowing the TechWave sales staff (Professional Services) to sell
complete communication solutions in addition to the TechWave services and
products. The targets for those products are those accounts with complex
business communication needs, and/or those accounts that generate greater
than [ * ] in billable revenue.
EXPOSURE
Qwest products will be exposed to new and exisitng TechWave accounts at
TechWave's discretion.
ROLES/RESPONSIBILITIES/PROGRAM ASPECTS
JOINT RESPONSIBILITIES/PROGRAM ASPECTS
- Qwest and TechWave will work together on larger, strategic accounts
where extra technical support is needed, or there are relationship
cross-over issues.
- TechWave will need a program coordinator to support the TechWave
sales staff.
QWEST RESPONSIBILITIES
- Qwest will provide all training and collateral support.
- Qwest will provide (via its Seattle sales office) technical and
account support, including e-mail Q&A, cost analysis coaching,
Q.partner website support (product presentations, subagent ID
assignment, special pricing requests, collateral ordering, etc.).
- Qwest will handle and track all orders and commissions.
- Qwest will provide TechWave a list of accounts that cannot be handled
by Qwest distributors.
- Qwest to provide list of top selling products to TechWave so that they
can focus on maximizing their initial sales potential.
TECHWAVE RESPONSIBILITIES
- TechWave will ensure that its entire sales staff is trained in the
Qwest business services.
- TechWave handled all order entry.
- TechWave will use the Qwest resources as their first line of support.
-------------------------------------------------------------------------------
Page 32
Revised: April 13, 1999
* CONFIDENTIAL TREATMENT REQUESTED.
-- ADMINISTRATION PLAN
IMPLEMENTATION, CONTACTS, TEAM COORDINATION...
-------------------------------------------------------------------------------
CONTACTS
-------------------------------------------------------------------------------
NAME COMPANY NUMBER ROLE
-------------------------------------------------------------------------------
Xxxx Xxxxxxxx Qwest 000-000-0000 Sponsor
-------------------------------------------------------------------------------
XXXXXXX XXXXXX QWEST 000-000-0000 PROGRAM MANAGEMENT
-------------------------------------------------------------------------------
Xxxx Xxxxx Qwest 000-000-0000 Business Affinity Sponsor
-------------------------------------------------------------------------------
Xxxxx Xxxxxxx Qwest 000-000-0000 Business Distributor Sponsor
-------------------------------------------------------------------------------
Xxxx Xxxxxx Qwest 000-000-0000 Counsel
-------------------------------------------------------------------------------
Xxxxx Xxxxxxxx Qwest 000-000-0000 Regulatory Counsel
-------------------------------------------------------------------------------
Xxxxxxx Xxxxxxxx TechWave 000-000-0000 EVP, TechWave Sponsor
-------------------------------------------------------------------------------
Xxxx Xxxxxx TechWave 000-000-0000 EVP, Finance/Counsel
-------------------------------------------------------------------------------
Xxxxx Xxxxxx TechWave 000-000-0000 Counsel
-------------------------------------------------------------------------------
XXXX XXXXXXX TECHWAVE 000-000-0000 PROGRAM MANAGEMENT
-------------------------------------------------------------------------------
Xxxxx Xxxxx TechWave 000-000-0000 Marketing
-------------------------------------------------------------------------------
Xxx Xxxxxxxx TechWave 000-000-0000 Operations
-------------------------------------------------------------------------------
Xxx Xxxxxxx TechWave 000-000-0000 Merchant Services
-------------------------------------------------------------------------------
Xxxxx TechWave 000-000-0000 Professional Services
-------------------------------------------------------------------------------
Xxx Xxxx WGI 000-000-0000 Consultant
-------------------------------------------------------------------------------
TEAM COORDINATION/STRUCTURE
Both Qwest and TechWave will have dedicated account managers for the project.
They will be responsible for all issues on the account and ensuring that each
issue is addresed by the various business units. They will establish a
regular schedule of meetings.
CHANGE REQUEST PROCESS
The Qwest account manager will initiate any changes via the TechWave forms.
These are signed and faxed to TechWave. TechWave will e-mail a confirmation
receipt. There is a 7 day turnaround for minimal changes.
The TechWave account manager will review the request for feasibility and will
begin working with the necessary groups (engineering, marketing, etc.). The
change will be accepted or returned for further discussion. Once accepted, a
project plan will be sent to Qwest.
INDOCTRINATION
Qwest will provide TechWave with adequate industry materials and training to
shorten the "ramp time" for selling and marketing communication products
(e.g. Glossary). Qwest will also investigate whether TechWave could
participate in Qwest new employee training or similar derivatives to
understand the Qwest culture.
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Page 33
Revised: April 13, 1999
EXHIBIT 4(e)
"QWEST'S POLICIES AND PROCEDURES REGARDING SLAMMING PREVENTION"
ADVISORY TO ALL REPRESENTATIVES SELLING QWEST COMMUNICATION CORPORATION'S
SERVICES:
All Representatives/Distributors selling Qwest long distance service must
carefully read the contents of this document. It will explain Qwest's
policies and procedures for the sale of Qwest long distance services. The
purpose of this document is to explain what can cause unauthorized switching
of a customer, the importance of preventing such switching, and the
seriousness of the matter to Qwest, its authorized Representatives, and their
independent distributors. This document includes an "Acknowledgment" that
must be read, signed, and returned to the Representative/Distributor by each
individual selling Qwest services. Representatives/Distributors must make a
signed copy of this document available to Qwest, upon request.
A. COMMON CAUSES OF SLAMMING:
- Incorrect telephone number submitted on the Letter of Authorization or
"LOA" - means that incorrect telephone number is switched without the
customer's written consent.
- The submitted LOA is illegible and directly causes the person that keys
the order into the system to enter the wrong name and/or phone number.
- The person who "authorized" switching carriers really didn't have the
authority to make the switch. Sometimes receptionists, secretaries or
assistants authorize a switch to qualify for some sort of premium or other
inducement.
- A simple misunderstanding when one partner doesn't tell the other partner
or accounts payable personnel about selecting a new long distance service.
This is especially true when it is the other person who reviews or pays
the bills. The xxxx-paying partner or accounts payable representative sees
a new long distance carrier name and thinks something is wrong. Please ask
your customers to inform the appropriate persons within the company about
changing long distance carriers.
- Signing someone up just to "get the sale" or reach a qualification or
commission level.
- Signing someone up, without the customer's knowledge, as a result of
spending a lot of time with a company decision-maker and assuming that the
person would be satisfied with Qwest service for the company.
B. EFFECTS OF SLAMMING:
- It is illegal and will not be tolerated by Qwest!
- Creates a bad image and adversely affects Qwest's and the Sales
Agent/Distributor's reputation.
- Takes time to investigate and correct.
- If we can get information verified (correct), it will save on:
1. Order rejects
2. Returned mail
3. Time to process valid and accurate orders.
- Frustrating experience for the company that was slammed.
- Usually the local telephone company levies a charge to make the initial
switch to Qwest and then charges again to switch the affected customer
back to the original long distance company. Qwest and then the distributor
and its sales agents are billed for these costs. These Qwest charges will
probably be billed by distributors to their sales agent. This leads to
serious consequences for the agent, including termination of the sales
agent relationship with Qwest.
QWEST AS WELL AS FEDERAL, STATE, AND LOCAL REGULATORY AGENCIES VIEW
"SLAMMING" AS A VERY SERIOUS PROBLEM. THE FCC CAN IMPOSE SIGNIFICANT FINES ON
A PER VIOLATION BASIS.
C. HOW CAN A REPRESENTATIVE/DISTRIBUTOR PROTECT AGAINST SLAMMING:
1
EXHIBIT 4(e)
- You are strongly encouraged to verify information against each new
customer's actual telephone xxxx for each LOA.
- The person signing the LOA should be a person with authority to act on
behalf of the company. It is essential that the person signing the LOA has
authority to change long distance carriers. NOTE THAT RECEPTIONISTS,
SECRETARIES AND ASSISTANTS TYPICALLY DO NOT HAVE THE AUTHORITY TO CHANGE
LONG DISTANCE CARRIERS FOR THE COMPANY. If the person signing the LOA is
different from the person with the actual authority to do so, you should
attempt to contact the other person. While this policy might jeopardize
some sales orders, it should give you a chance to retain sales by
demonstrating your concern and professionalism.
- Take your time. Review the LOA for accuracy and legibility, especially the
telephone number. Confirm the person's telephone number.
- NEVER sign someone else's name on an LOA or any other document!
- Don't force a sale that is not there.
2
EXHIBIT 4(e)
ACKNOWLEDGEMENT
THIS WILL VERIFY THAT I HAVE RECEIVED, READ, UNDERSTAND, AND WILL COMPLY WITH
THE DOCUMENT ENTITLED "QWEST'S POLICIES AND PROCEDURES REGARDING SLAMMING
PREVENTION". I FULLY UNDERSTAND AND APPRECIATE MY OBLIGATIONS AS AN QWEST
SALES AGENT OR INDEPENDENT CONTRACTOR NOT TO ENGAGE IN OR FACILITATE THE
PRACTICE OF "SLAMMING" CUSTOMERS. I UNDERSTAND THAT QWEST WILL NOT TOLERATE
FURTHER OCCURRENCES OF "SLAMMING", AND THAT QWEST WILL TAKE WHATEVER ACTIONS
ARE NECESSARY TO PROTECT AGAINST SLAMMING INCLUDING, WITHOUT LIMITATION,
TERMINATION OF THE SALES AGENT RELATIONSHIP AND ENFORCEMENT OF ALL APPLICABLE
LEGAL RIGHTS AND REMEDIES.
---------------------------------------------------------------------
SIGNATURE OF REPRESENTATIVE SELLING QWEST LONG DISTANCE
DATE
-------------------------
-------------------------------------------------------
PRINT NAME
HOME PHONE NUMBER
--------------------------------------
-------------------------------------------------------
PRINT NAME OF COMPANY
CHANNEL CODE
----------------------
ORGANIZATION CODE
-----------------
3
EXHIBIT 4(e)
ACKNOWLEDGMENT BY SALES AGENT
THIS WILL VERIFY THAT ON BEHALF OF , I HAVE
---------------------------
RECEIVED, READ, UNDERSTAND, AND WILL DISTRIBUTE THE DOCUMENT ENTITLED
"QWEST'S POLICIES AND PROCEDURES REGARDING SLAMMING PREVENTION" TO THE
INDIVIDUALS RESPONSIBLE FOR SELLING QWEST INTERNATIONAL LONG DISTANCE
SERVICE. WE FULLY UNDERSTAND AND APPRECIATE OUR OBLIGATIONS AS AN QWEST SALES
AGENT NOT TO ENGAGE IN OR FACILITATE THE PRACTICE OF "SLAMMING" CUSTOMERS. WE
UNDERSTAND THAT QWEST WILL NOT TOLERATE FURTHER OCCURRENCES OF "SLAMMING", AND
THAT QWEST WILL TAKE WHATEVER ACTIONS ARE NECESSARY TO PROTECT AGAINST
SLAMMING INCLUDING, WITHOUT LIMIATION, TERMINATION OF THE SALES AGENT
RELATIONSHIP AND ENFORCEMENT OF ALL APPLICABLE LEGAL RIGHTS AND REMEDIES.
Date
-------------------------------------------- --------------
SIGNATURE OF REPRESENTATIVE
-------------------------------------------
PRINT NAME
BUSINESS PHONE NUMBER
----------------------
-------------------------------------------
PRINT NAME OF COMPANY
CHANNEL CODE
--------------------------
ORGANIZATION CODE
---------------------
PLEASE REMIT THIS FORM WITHIN FOURTEEN DAYS OF RECEIPT TO: QWEST
COMMUNICATIONS CORPORATION, 0000 XXXXXXXXX XXXXX, XXXXXX, XXXX 00000, ATTN:
LEGAL DEPT.
SIGNATURE OF REPRESENTATIVE FOR .
------------------------------------------
4
