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EXHIBIT 10.32
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| APPROVED BY: | |
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| DATE: | |
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| AGENT NUMBER: | |
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LECSTAR TELECOM, INC.
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Authorized Enhanced Solution Agent Agreement
THIS AUTHORIZED ENHANCED SOLUTION AGENT AGREEMENT (hereinafter
"Agreement") is made and entered as of the latest date written below, between
LecStar Telecom, Inc., a Georgia Corporation ("LecStar") and Inter-Tel
Technologies ("Agent").
IN CONSIDERATION of the mutual promises and covenants herein contained,
XxxXxxx and Agent (collectively, "the Parties") agree as follows:
1. APPOINTMENT AND DEFINITIONS.
X. XxxXxxx hereby appoints Agent, and Agent xxxxxx accepts the
appointment on a non-exclusive basis, to serve as an independent representative
of LecStar for the promotion and sale to potential customers in the territory
(the "Territory") described in Exhibit A - AGENT TERRITORY, of the LecStar
products and services (the "Services") described in Exhibit B - LECSTAR PRODUCTS
AND SERVICES. Agents shall be assigned sales support, including LecStar sales
person(s) and sales engineer(s) to assist the Agent with Customer interfacing,
proposal development, pricing requests, sales order processing, and other
support as needed.
B. For purposes of this Agreement, the following terms shall have the
meanings set forth herein. Unless otherwise expressly defined, other terms used
in this Agreement shall be accorded their common meanings.
1. Customers. A "Customer" is a Prospect (as defined below) that has
entered into a mutual written Service Agreement (as defined below) with LecStar
for the provision of Services (as defined below).
2. Prospects. A "Prospect" is a party that has been identified by
Agent as a potential Customer based on their current and potential
telecommunications service requirements, and that is introduced to LecStar
through the efforts of the Agent.
3. Services. The "Services" are telecommunications services provided
by LecStar for use by the Customer pursuant to a Service Agreement.
4. Service Agreement. A "Service Agreement" is the service order
form issued by XxxXxxx and signed by XxxXxxx and the Customer, together with
applicable terms and conditions and any addenda or other attachments thereto.
2. TERMS AND TERMINATION.
A. This Agreement shall be effective as of the date last written below
and shall continue for twelve (12) months unless sooner terminated as provided
below. Upon completion of the initial twelve (12) month term, this Agreement
shall be automatically renewed for successive one (1) year periods.
B. Either Party may terminate this Agreement without cause at any time
upon thirty (30) days written notice. If LecStar terminates this Agreement
without cause, Agent's right to receive commissions will continue for all
Service Agreements executed prior to the date of such termination for the term
of those Service Agreements.
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X. XxxXxxx may suspend this Agreement if Agent is in material breach of
any of the covenants set forth herein and upon written notice to Agent. In case
of such suspension, Agent shall have a reasonable period of time, not to exceed
thirty (30) days, in which to cure its breach. All commission accruals and
payments will cease immediately (upon receipt of notice of suspension by Agent)
until the breach is corrected. Upon correction of the breach to the satisfaction
of LecStar, this Agreement and all commission accruals and payments will be
resumed (without credit for accruals occurring during the period of suspension).
If a breach is not cured within such thirty (30) day period, LecStar shall have
the sole option of either terminating the Agreement, or providing an additional
period of time for Agent to cure its breach.
D. This Agreement and commission accruals hereunder shall
immediately terminate in the event of any of the following:
1. a significant change in the nature, control, or ownership of
Agents business, whether voluntary or by operation of law without the prior
written approval of LecStar;
2. insolvency of Agent, the filing by or against Agent for relief
under the U.S. Bankruptcy Code, or the execution by Agent of any assignment for
the benefit of its creditors:
3. any transfer or assignment of this Agreement by Agent without
prior written consent of XxxXxxx:
4. any statute or regulation, or any proposed or threatened action
by state or federal regulatory authorities which would render this Agreement or
any of the obligations of either party hereunder illegal, or otherwise would
materially and negatively affect the business interests of LecStar as it applies
to this Agreement; or,
5. the expiration of any cure period as described in section 2.C
above, if the breach giving rise to suspension has not been cured, and LecStar
has not agreed to an extension of the cure period; or
6. Agent acts illegally or in a manner that reflects negatively on
LecStar or its business interests.
E. Upon termination of this Agreement for any reason, Agent shall
immediately cease all work hereunder, and, except as otherwise specifically set
forth herein, all of Agent's rights to earn commissions under this Agreement
shall also cease. Upon termination the Agent shall promptly:
1. discontinue the use, if any, of all Trademarks (as described
herein);
2. remove all LecStar-related signs, brochures or other marketing
materials in offices and facilities used by Agent; and
3. return to LecStar, (a) all property, equipment or materials
provided to Agent by XxxXxxx, (b) all lists and other writings containing
information relating to existing Customers, or Prospects, (c) all other
confidential or proprietary information of LecStar, and (d) all copies of the
foregoing.
3. AGENT RESPONSIBILITIES.
A. Agent agrees to promote XxxXxxx and the Services to Prospects, and
to exert its reasonable best efforts in so doing.
B. Agent activities will include: identifying Prospects; informing each
Prospect of the benefits and advantages of becoming a Customer; introducing
LecStar sales and engineering staff to Prospects as required; and obtaining
commitments and orders to procure LecStar Services as detailed in EXHIBIT C -
AGENT PROCEDURES.
C. Agent shall obtain the proper signature of the Customer on the
Service Agreement, or other document as may be provided by LecStar. LecStar
reserves the right, at any time, to cancel or reject any Service Agreement or
order for Services for any reason, in its sole discretion, and without liability
to Agent.
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D. Agent shall have full and sole responsibility for the acts and
omissions of its employees, agents, representatives and subcontractors, and for
all matters relating to their conditions of employment or retention, and will
indemnify and hold LecStar harmless from and against any claims or allegations
arising from such acts, omissions or matters. The foregoing includes, without
limitation:
1. any act or omission contrary to applicable law, rule or
regulation, or violation of the rights of any third parties;
2. responsibility for compensation, including (without limitation)
all payroll matters, withholdings, taxation and tax status;
3. workplace matters including (without limitation) discrimination
in employment and harassment; and,
4. job-related injury or illness including (without limitation) all
worker's compensation insurance and claims handling matters.
E. Agent shall, at all times, act in a professional, courteous and
businesslike manner, and shall exert its best efforts to create and maintain
goodwill for LecStar and the Services. Furthermore, Agent expressly agrees that
it shall, both during and after the term of this Agreement, refrain from
engaging in any conduct that is or may be disparaging towards LecStar or the
Services, and that any act or omission by Agent that is or may be disparaging
shall entitle LecStar to injunctive relief from a court of competent
jurisdiction, in addition to, and not in any way limiting, any other rights it
may have against Agent at law or in equity.
F. Agent shall have full and sole responsibility for its own expenses
and those of its employees, agents, representatives and subcontractors,
including without limitation, all travel and related costs.
G. Agent shall, at all times, maintain a level of expertise in matters
relating to LecStar, the Services, and current telecommunications practices in
accordance with the qualifications set forth in Exhibit D - AGENT QUALIFICATION
CRITERIA. This shall include, without limitation, attending training sessions,
seminars and/or other reasonable and customary means of maintaining such
expertise.
4. COMPENSATION AND ELIGIBILITY.
X. XxxXxxx shall compensate Agent on a monthly commission basis
(according to the schedule(s) set forth in Exhibit E - AGENT COMPENSATION for
each Service Agreement that it actively and materially contributes to the
execution of, in accordance with the terms and conditions hereof. Agent's
eligibility for commissions shall be determined by XxxXxxx and all
determinations shall be final. All disputes regarding commissions shall be
presented by Agent to XxxXxxx, and shall be handled by amicable, good-faith
negotiations.
B. LecStar shall mail commission payments approximately fifteen (15)
days from the end of the month in which such commissions accrued. All payments
will be made in U.S. dollars.
X. XxxXxxx shall provide monthly statements to the Agent describing
commission payments.
D. Payments shall be made only with respect to Service Agreements with
Customers sold by Agent for as long as that Service Agreement remains valid, and
subject to the limitations described herein.
E. Agent is eligible for commission on renewals of Service Agreements
and for additional Services provided pursuant to existing Service Agreements
only to the extent that Agent actively and materially contributed to the renewal
or addition. Nothing herein shall entitle Agent to commissions on all business
between LecStar and any Customer.
F. Month-to-month services will be commission-eligible for a maximum of
twelve (12) months.
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G. Any accrued monthly commission of less than Fifty Dollars ($50.00)
may be held and either paid in full upon installation of the Services giving
rise to such commissions, or accrued until total commissions due are at least
$50.00, at XxxXxxx's discretion.
X. XxxXxxx may at its sole discretion pay Agent commissions on a
monthly basis, as a lump sum, or in combination thereof. Order commission rates
are as follows:
I. Commission accruals (and payments) may, at LecStar's discretion, be
subject to a reduction, suspension or cancellation if:
1. the charges for Services provided in the Service Agreement are
insufficient to cover payment of full commissions due to discounting (Agent
shall be notified of such reduction prior to execution of the applicable Service
Agreement);
2. the Service Agreement is suspended or terminated for any reason;
3. Services under the Service Agreement and/or the charges therefore
are reduced or otherwise negatively affected for any reason; or
4. payment by the Customer pursuant to the Service Agreement is
delinquent or delayed, or becomes the subject of legal proceedings, including
without limitation, a collections action, or bankruptcy or insolvency
proceedings. Commission accruals shall be restored or resumed in whole or in
part, as warranted, upon resolution of the condition giving rise to a reduction
or suspension under this Section. In addition, commissions may be reduced,
suspended or terminated, as warranted, if Agent, as billing party of record for
any account (including its own) or pursuant to any Service Agreement becomes
delinquent in, or terminates, the payment of its invoice obligations to LecStar,
for any reason.
5. TRAINING AND LITERATURE.
LecStar may from time-to-time develop and provide Agent with service,
promotional and other training, and all necessary product and technical
information for the Services. Upon reasonable request, Agent agrees to attend,
assist and cooperate in such training programs.
6. CONFIDENTIALITY.
During the period of this Agreement and for at least two (2) years
following its termination for any reason Agent will keep in strictest confidence
all information identified by XxxXxxx as confidential or proprietary, and all
information that, by its nature, is obviously confidential. Such information
specifically includes, without limitation, information regarding LecStar's
facilities, technical capabilities and operations, business plans and
strategies, product marketing, costs, customer relations, training-related
literature and materials and all information relating to Customers or Prospects
such as (without limitation) customer lists, contact information, proposals,
notes, correspondence, technical requirements, and designs. Except as
specifically authorized by the parties in advance in writing, Agent will not, at
any time, use, publish, communicate, or otherwise disclose to any third party
any such information. In all cases, the parties shall treat all confidential
information of the other party with at least the same degree of care as it
treats its own confidential information, which shall be at least a reasonable
degree of care. Agent expressly agrees that monetary damages may not be
sufficient compensation for a violation of this Section, and that LecStar shall
be entitled to injunctive relief from any court of competent jurisdiction for
any such violation, in addition to, and not in any way limiting, any other
rights that LecStar may have against Agent at law or in equity.
7. NAME AND TRADEMARKS.
Agent acknowledges and agrees that XxxXxxx's trademarks, service marks,
copyrights, logos, slogans and trade-names and all other intellectual property
(collectively the "Trademarks") shall at all times remain the property of
LecStar, that LecStar has title thereto, and that LecStar has the right to
control the use of the Trademarks and to take all appropriate measures for their
protection. Agent may not use the Trademarks except as specifically authorized
by XxxXxxx, and Agent shall cooperate fully with LecStar at LecStar's expense,
in any actions against third parties in defense and protection of the
Trademarks.
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8. LIMITATION OF AGENT'S AUTHORITY.
A. Agent shall tender quotations for Services to Prospects as prepared,
issued and approved by XxxXxxx. Any and all negotiations with prospects relating
to price and/or terms and conditions of sales shall be conducted solely by
LecStar.
X. XxxXxxx will be responsible for Customer billing and Customer
support for the Services and shall be entitled to all revenues deriving
therefrom.
C. Agent shall have no authority to assume or create any obligation,
express or implied, on behalf of LecStar or to represent LecStar in any
capacity, except as expressly set forth in this Agreement or in specific written
authorizations given from time-to-time by XxxXxxx.
D. The relationship between the Parties shall be solely that
independent contractors, and nothing herein shall create or imply any other
different relationship.
9. NOTICES, REPORTING RELATIONSHIP.
A. All notices required or permitted under this Agreement shall be in
writing and shall be deemed given:
1. when delivered in person or when a facsimile is received
(provided that receipt is acknowledged in writing or originals are sent by mail
or overnight delivery as provided below);
2. five (5) days after being sent if sent by certified mail, return
receipt requested; or,
3. upon receipt if sent by a recognized overnight delivery service
such as Federal Express, U.P.S., or DHL.
B. All notices shall be sent postage prepaid and addressed as follows:
If to LecStar: If to Agent:
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LecStar Telecom, Inc. Name: Xxx Xxxxxxxx
0000 Xxxxxx 00 Xxxxxxx, Xxxxx X-0000 Company: Inter-Tel Technologies
Atlanta, GA 30339 Street: 3170 RepsMiller PL Bldg. 000
Xxxxx: Xxx 000
Attn: Alternate Channel Sales City: Norcross State: GA Zip: 30071
Phone: 000-000-0000 Phone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
SSN or Employee ID #:
Tax ID #: 00-0000000
C. The above addresses and contact information may be changed by either
party with reasonable written notice to the other.
D. For all purposes under this Agreement, Agent shall report to and
take direction from the Alternate Channel Sales, at the address above, or its
designee, unless and until otherwise notified by LecStar.
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10. OTHER PROVISIONS.
A. Governing Law: Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia, exclusive of its
rules respecting choice of law. Agent expressly agrees to abide by the
determinations made by XxxXxxx regarding any commission disputes and payments,
and waives any rights it may have to challenge such determinations in a court of
law, or by any other means; provided however, this waiver shall not prevent
Agent from making any claim that XxxXxxx failed to act in good faith in making a
determination regarding the disposition of a commission dispute.
B. Arbitration. The parties agree that any dispute, claim or
controversy of whatever nature arising out of or relating to the negotiation,
execution, performance or breach of this Agreement or any other dealings between
them shall be resolved solely by arbitration before three panel members in
proceedings conducted in Xxxx County, Georgia before the American Arbitration
Association in accordance with its Commercial Arbitration Rules. The decision of
a majority of said panel members shall be deemed conclusive, final and binding
upon the parties; and may be entered as the judgment of any court of competent
jurisdiction. The parties shall execute all submission agreements and other
documents authorizing the submission of said dispute to arbitration for a final
determination and award. The arbitration panel shall be empowered to award
attorney's fees and expenses of arbitration (including expert witness fees) to
the prevailing party in any such arbitration.
C. Assignment. This Agreement may not be transferred, assigned, or
subcontracted by Agent without prior written consent of XxxXxxx, which will not
be unduly withheld.
D. Remedies Cumulative. The remedies provided in this Agreement shall
be cumulative, and the assertion by either party of any right or remedy shall
not preclude the assertion by such party of any other rights or the seeking of
any other remedies.
E. Entire Agreement. Amendments: Waiver. This Agreement represents the
entire agreement between Agent and LecStar and supersedes any prior or
contemporaneous understanding or agreement with respect to the subject matter
hereof. The compensation described herein for services provided by Agent under
this Agreement represents the only compensation payable by XxxXxxx and no other
compensation of any kind shalt be paid for said services. The failure of either
party to enforce any of the provisions of this Agreement or the waiver thereof
in any instance shall not be construed as a general waiver or relinquishment on
its part of any other provision, but the same shall nevertheless be and remain
in full force and effect.
F. Severability. The invalidity or unenforceability of any provision of
this Agreement shall in no manner affect the validity or enforceability of any
other provision hereof.
G. Survival of Terms. Those terms and provisions of this Agreement
that, by their nature, are intended to survive the termination or expiration of
this Agreement, shall so survive. The foregoing includes, without limitation, in
whole or in part as warranted, Sections 2, 3, 4, 6, 7, 8 and 10.
H. Headings. The Section and paragraph headings used herein are
intended to be descriptive only, and shall have no affect on the meaning or
interpretation of the provisions of this Agreement.
I. Interpretation. The terms and provisions hereof shall not be
interpreted against the drafter regardless of any law or rule to the contrary,
and regardless whether any term or provision is determined to be ambiguous or
confusing. In the event of any conflict or inconsistency between the foregoing
terms of this Agreement and a following Exhibit, the terms of the Exhibit shall
be controlling.
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IN WITNESS WHEREOF, the Parties provided below, have caused this
Agreement to be executed hereto, by their authorized signatures in the spaces
below, to be executed as of the date and year last written.
LECSTAR TELECOM, INC. AGENT
/s/ XXXXXXX XXXXX /s/ XXX XXXXXXXX
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Signature Signature
XXXXXXX XXXXX XXX XXXXXXXX
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Name (please print) Name (please print)
PRESIDENT AND CHIEF EXECUTIVE OFFICER SENIOR VICE PRESIDENT
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Title Title
MARCH 27, 2001 MARCH 26, 2001
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Date Date
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EXHIBIT A
AGENT TERRITORY
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Agent may market and sell LecStar services only in the State of Georgia where
facilities are available.
Local Access Service and Local Access Calling Features may only be marketed and
sold within the operating territories of BellSouth within the State of Georgia.
Agent's territory shall be updated periodically to include new areas as
LecStar's facilities and interconnection operations permit.
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EXHIBIT B
LECSTAR PRODUCTS AND SERVICES
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SERVICES AVAILABLE TO AGENT
Listed below are LecStar products and services for which Agent is currently
eligible for compensation.
BASIC SERVICES
- Local Access Business Lines
- Local Access Calling Features
- Switchless Long Distance Access
ADVANCED SERVICES
- Dedicated T-1 with Switched Long Distance
- Point-to-Point High-Speed Data
- High Speed Internet Access
- Primary Rate ISDN Service
- Dedicated T-1 with Integrated Internet and Long Distance Access
Services that are eligible to Agent shall be expanded in an amendment to EXHIBIT
B as new services become available.
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EXHIBIT C
AGENT PROCEDURES
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ENHANCED SERVICES
1) Agent Identifies Qualified Opportunity
a) Completes Lead/Order Transmittal Form
b) Establishes Preliminary Price Quote thru LecStar
2) Agent Delivers Proposal/Service Order to Prospect
a) Secures Customer Signature on Service Order
b) Returns Service Order to LecStar
3) LecStar Schedules/Conducts Site Survey
a) Validates or Modifies Prospect Profile and Requirements
b) Confirms Service Order or Submits Changes to Agent
4) LecStar Enters Order and Secures Installation Date
a) Schedules Installation with Customer
b) Notifies Agent
5) Installation Completed
a) Quality of Service Tested
b) Customer Signs Off
c) Billing and Commission Cycle Begin
BASIC SERVICES
1) Agent Identifies Qualified Opportunity
a) Provides Customer with Price Quote
2) Agent Delivers Proposal/Service Order to Prospect
a) Secures Customer Signature on Service Order
b) Returns Service Order to LecStar
3) LecStar Enters Order and Secures Installation Date
a) Schedules Installation with Customer
b) Notifies Agent
4) Installation Completed
a) Billing and Commission Cycle Begins
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EXHIBIT D
AGENT QUALIFICATION CRITERIA
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1) Agent shall maintain the ability to add value to the sales and marketing
process through assisting Prospects identify and implement solutions that
improve telecommunications functionality, and/or price-performance
improvements.
2) Agent shall maintain the ability to conduct effective site surveys for the
purpose of accurately determining LecStar service requirements based on the
Prospect's application requirements, current and planned network
configurations and customer premise equipment.
3) Agent shall maintain qualification and good standing status in one or more
of the following authorized Value Added Reseller or Authorized Agent
programs or the equivalent in the sole opinion of LecStar:
- Microsoft
- Novell
- Hewlett-Packard
- Cisco Systems
- Nortel Networks (Bay Networks)
- 3Com
- Lucent Technologies /Ascend / Cascade
- Compaq / Digital Equipment
- Apple Computer
- IBM
- BellSOUTH
- GTE/Verizon
- Sprint United
- Other LEC
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EXHIBIT E
AGENT COMPENSATION
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Local Business Lines (1-FB)
o 50% of 1st Month's Scheduled Recurring Subscriber Line Charges
o 10% of Subsequent Monthly Recurring Subscriber Line Charges
o Paid for Life of Contract
Switched Long Distance
o 10% of Monthly Long Distance Charges Associated with 1FB
Subscription
o Paid for Life of 1-FB Contract
Dedicated Internet Access
o 30% of 1st Month's Scheduled Recurring Subscriber Line Charges
o 08% of Subsequent Monthly Recurring Subscriber Line Charges
o Paid for Life of Contract
Dedicated Long Distance
o 08% of Monthly Long Distance Charges
o Paid for Life of Contract
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