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Exhibit 10.23.3
AMENDED AND RESTATED
RESIDENTIAL DISTRIBUTOR PROGRAM AGREEMENT
IT IS AGREED as of September, 1, 1998, by and between LCI International Telecom
Corp., d.b.a. Qwest Communications Services ("Qwest"), a Delaware corporation,
with a principal place of business at 0000 Xxxxx Xxxxx, 000 Xxxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxx 00000 and Quintelcomm, Inc., a Delaware corporation
(hereinafter "Representative), whose address is One Xxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxx Xxxxx, Xxx Xxxx 00000.
THIS AGREEMENT amends and restates in its entirety the agreement dated as of
January 5, 1998 between the parties hereto.
1. GRANT OF AUTHORITY
a.) Quest appoints Representative as a non-exclusive
representative in the territory set forth in Exhibit A to
promote the sale of and solicit orders for the services
defined in Exhibit A ("Services") and to obtain customers for
such Services (a customer obtained by Representative shall be
referred to as the "Customer"), all subject to the terms and
conditions of this Agreement. Representative agrees to market
the Services in accordance with the terms of this Agreement
using the methods of Customer acquisition set forth in Exhibit
C. Qwest may 1) add to or delete from the Services, 20 change
the tariffs or terms and conditions relating to the Services,
or 3) change its requirements in connection with Verbal
Authorizations and LOAs (as hereinafter defined) (collectively
"Changes"); provided however, Qwest shall in the case of a
Material Change (defined as any change in the oral or written
marketing descriptions of the price or material terms and
conditions of the Services used by Representative hereunder)
that is not required as a result in a change in federal or
state laws or regulations ("Laws"), provide Representative
sixty (60) days prior written notice ("Notice") of such
Material Change (and Representative's sole remedy for Qwest's
failure to provide such Notice shall be the reimbursement of
Representative's actual expenses in making the Material
Change), and in the case of all other Changes, Qwest shall use
commercially reasonable efforts to provide as much advance
written notice as is practicable. In the event of a Material
Change that is required by a change in Laws, Qwest and
Representative shall share equally in the mutually agreed upon
expenses Representative may incur in changing its oral or
written materials. In the event of a Material Change or a
material change in Qwest's nationwide, residential long
distance service offerings, which, in either case, materially
adversely impacts Representative's rights or obligations or
ability to generate commissions hereunder, Representative
shall provide written notice to Qwest and the parties shall
work together in good faith to agree upon a course of action
whereby both parties continue to receive the benefits expected
under this Agreement, provided however, if the parties fail to
reach such an agreement within thirty (30) days of such notice
"Representative Discussion Period"), Representative may
terminate this Agreement by written notice to Qwest given
within ten (10) days following the Representative Discussion
Period. In the event any federal or state action, by
legislation,
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decision, order or otherwise, which materially adversely
effects Qwest's rights or obligations hereunder or the
marketing and sales method used by the parties hereunder or
materially increases the risk that the continuation of such
marketing and sales methods will have a material adverse
effect on Qwest's residential long distance business in that
jurisdiction, Qwest shall provide written notice to
Representative and the parties shall work together in good
faith to agree upon a course of action whereby both parties
continue to receive the benefits expected under this
Agreement, provided however, if the parties fail to reach such
an agreement within thirty (30) days of such notice ("Qwest
Discussion Period"), Qwest may eliminate from Representative's
marketing efforts the jurisdiction(s) in which the
governmental action applies, by providing written notice to
Representative given within ten (10) days following the Qwest
Discussion Period, and if such jurisdiction as the federal
government or if the foregoing procedure in the aggregate
results in 33% or more of U.S. population being eliminated,
Qwest may, upon ten (10) days written notice to Representative
terminate this Agreement. Representative further agrees to
secure and use at its own expense and within thirty (30) days
from the date hereof, for the purpose of communication and
electronic download of LOAs to Qwest, the equipment or its
equivalent as outlined in Exhibit E. If Qwest offers, via
nationwide third party sales representatives, 1) residential
voice, data and fax long distance services not previously
marketed by Qwest as of the date hereof, 2) or non-traditional
telecommunications services for residential customers such as
cellular, internet access or paging services, such services
shall be made available to Representative to market on terms
and conditions to be mutually agreed upon.
b.) Representative shall only use those means of marketing and
selling the Services which are set forth in Exhibit C or are
agreed upon in the sales and marketing plan ("Plan"). Qwest
reserves the right to approve all customer databases used by
Representative that are not set forth in the initial Plan
which approval or disapproval shall be consistent with Qwest's
general residential marketing guidelines, strategies and
objectives. Qwest acknowledges that it has approved the
customer database described in Representative's letter dated
December 30, 1997. Representative agrees to submit for
approval by Qwest an updated Plan every ninety (90) days.
Representative agrees to submit any changes in the Plan to
Qwest for written approval, prior to any implementation by
Representative. Qwest shall have ten (10) business days to
approve the Plan, but any failure to so approve shall not be
deemed approval. Thereafter, Qwest shall have five (5)
business days to approve changes to the Plan and any failure
to approve or disapprove the changes shall be deemed approval.
If the parties cannot reach agreement on changes to the Plan,
the previous Plan shall continue to apply. The initial
proposed Plan and any changes or updates thereto shall include
the identifying characteristics of each prospect class,
segment or group proposed to be solicited, identified as
specifically as possible by Representative including the
approximate number of prospects therein ("Cell"). If Qwest
does not approve the
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initial Plan, such disapproval shall be consistent with
Qwest's general residential marketing guidelines, strategies
and objectives and Qwest shall provide to Representative the
reasons for such disapproval. If the initial Plan is not
approved within thirty (30) days of initial submission by
Representative ("Plan Period"), Representative may terminate
this Agreement by providing written notice within ten (10)
days following the Plan Period. Solicitation by sweepstakes,
contests, or drawings is not permitted by Representative, its
employees, agents, or contractors under this Agreement without
prior written approval from Qwest. Qwest understands that
Representative will use premiums that are astrological in
nature in connection with its solicitation process.
c.) Qwest shall have the right to remotely monitor inbound and
outbound telemarketing calls performed by Representative
hereunder. Following thirty (30) days of selling by
Representative of a particular Cell, Qwest shall have the
right to terminate all solicitations to that Cell as set forth
below:
i.) If the "Billing Rate" for a Cell is less
than {Confidential portion omitted and filed
separately with the Commission} per month,
Qwest may terminate all solicitations to
that Cell pursuant to this Section 1.c.i
upon written notice to the Representative.
"Billing Rate" shall be defined as Billed
Revenue from a Cell as measured over a
30-day period divided by the number of
Customers in that Cell measured over the
same 30-day period who had dial one Service
during the entire thirty (30) day period and
for whom an Installation Commission was
payable hereunder. Representative shall have
thirty (30) days from receipt of such notice
to "cure" by increasing the Billing Rate to
{Confidential portion omitted and filed
separately with the Commission} or more per
month for that Cell as measured over the
30-day cure period. If Representative fails
to so cure, all solicitations to that Cell
shall terminate upon written notice from
Qwest to Representative.
ii.) If the "Churn Rate" for a particular Cell is
greater than {Confidential portion omitted
and filed separately with the Commission},
Qwest may terminate all solicitations to
that Cell pursuant to this Section 1.c.ii
upon written notice to Representative.
"Churn Rate" shall be defined as the number
of Customers from the Cell disconnecting
from dial one Service during a thirty (30)
day period ("Measuring Period") divided by
the number of Customers from the Cell on
dial one Service at the start of that
Measuring Period. Measuring Periods in all
instances shall begin on the same day of the
week and for purposes of this Section
1.c.ii, a Cell must contain at least
{Confidential portion omitted and filed
separately with the Commission} Customers.
Upon receipt of
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written notice from Qwest, Representative
shall have thirty (30) days to "cure" by
maintaining the Churn Rate for that Cell
during such 30 day cure period at
{Confidential portion omitted and filed
separately with the Commission} or less and
achieving a Churn Rate for all new Customers
for that Cell during such 30 day cure period
at {Confidential portion omitted and filed
separately with the Commission}.
d.) The term "telemarketing" shall mean Representative's inbound
and outbound telephone sales, with Representative initiating
telephone calls to third parties for the purpose of marketing
Qwest's Services to those third parties.
i.) All telemarketing services shall be in accordance
with the highest professional standards.
ii.) Representative shall perform the telemarketing
services in compliance with all applicable federal,
state and local laws relating to telemarketing
including, without limitation, compliance with all
applicable third party verification procedures and
regulations as required by the Federal Communications
Commission (FCC) including, without limitation, 47
CFR Sections 64.1100 and 64.1200 of the FCC rules, as
amended, and compilation of a "Do Not Call" list as
legally required. As applicable under federal, state
or local laws and regulations, Representative shall
supply sales information to a third party verifier,
at Qwest's option, or a third party verifier in
accordance with an arrangement with Quest and a third
party verification company approved by Qwest in
writing.
iii.) Representative shall not use Qwest's name and/or any
of Qwest's registered trademarks and services marks
unless expressly authorized by Qwest in writing. Even
if permission is granted, Representative shall
immediately cease use of Qwest's marks on direction
from Qwest and, in any event, at the termination of
the Agreement.
iv.) Representative shall manage, direct, hire and train
all personnel assigned to Qwest and Representative
shall have sole responsibility for all salaries,
wages and benefits of such employees. Representative
shall only use telemarketing sales representatives
who have satisfactorily completed Representative's
sales training program.
v.) Representative shall maintain full, accurate and
complete records and books of account, regarding the
telemarketing services performed under the Agreement.
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vi.) Representative shall be responsible for the
formulation of all scripts subject to prior review
and written approval of Qwest. Written materials
describing Qwest programs and procedures contained in
telemarketing scripts shall not be used by
Representative in any other manner without Qwest's
prior written approval. Representative, its
employees, agents, and contractors, shall use only
the approved telemarketing script(s) and associated
sales materials provided by Qwest for sales training
and telemarketing sales generation. Representative,
its employees, agents, and contractors shall not make
any revisions to or materially deviate from the
script of any other sales materials approved by Qwest
without Qwest's written approval. Any scripts
developed by Representative shall remain
Representative's property.
vii.) As applicable under any federal, state or local law
or regulation i) any party wishing not to be called
shall immediately be added to Representative's DO NOT
CALL list, ii) all names and telephone numbers and
sales leads shall immediately be matched against the
Direct Marketing Association and Representative's DO
NOT CALL files and shall not be called, and iii)
Representative shall submit a report to Qwest each
week listing those who request to be added to the DO
NOT CALL list.
viii.) Qwest reserves the right, without providing prior
notice and to the event permitted by law, to monitor
the handling of telemarketing calls where the
telemarketing services are being performed and to
ensure compliance with Qwest's scripts and sales
materials.
e.) The parties shall execute Amendments No. 1 and 2 as set forth
in Exhibits F and G.
2. COMMISSION
Representative shall receive commissions in accordance with the
commission structure set forth in Exhibit B, provided however, no
commission shall be paid on then current LCI customers (except as
specifically set forth in Exhibit B) or Qwest customers for the
Services or on new customers that call Qwest directly to subscribe to
the Services (other than inbound programs previously approved by Qwest
in writing).
3. RELATIONSHIP
During the term of this Agreement and for as long as commissions are
payable following termination or expiration, Representative shall not
knowingly, directly or indirectly, encourage or solicit any Customer to
discontinue using the Services. Except as permitted by the provisions
of Section 15 hereof, neither Representative nor an affiliate of
Representative shall enter into any oral or written agreement with a
provider of residential
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long distance services similar to this Agreement nor shall
Representative, directly or indirectly, market, solicit or sell
residential long distance of a competitor of Qwest (the term "long
distance service" excludes for purposes of this Agreement internet
telephony and 10xxx or "casual" calling). Representative shall not make
any representations of rates, terms or conditions of the Services that
conflict with the applicable tariffs or written information provided by
Qwest. Representative is responsible for all expenses and obligations
incurred by it as a result of its efforts to solicit Customers
including all costs for third party verification (TPV). The terms and
condition of the TPV contract, the costs associated therewith and
identity of any TPV vendor shall at all times be subject to mutual
approval of the parties hereto. The TPV contract shall be among Qwest,
Representative and the TPV, provided however, both Qwest and
Representative shall have the unilateral right to terminate the
contract for inadequate performance by the TPV vendor after prior
written notice and consultation with one another. Representative shall
be responsible for payment of all income taxes due on Representative's
income from the payments made to Representative by Qwest.
4. CUSTOMER SERVICE AND OTHER CUSTOMER MATTERS
a.) Representative shall not provide customer service with regard
to the Services to Customers solicited by Representative,
including billing, collections or repair service. Customers
attracted by Representative are customers of Qwest and any
termination or expiration of this Agreement shall have no
effect on Qwest's relationship with such Customers. All
information and data specific to the Customer's phone number
and the long distance usage thereon obtained by Representative
from Qwest Customers, potential customers or Qwest in
connection with this Agreement (such information and data is
referred to as the "Confidential Customer Telecommunications
Information") shall be proprietary to Qwest and shall be
governed by the Confidentiality Agreement. Representative
shall in no event use or disclose such Confidential Customer
Telecommunications Information, except to provide its services
hereunder. All information and data regarding the Customer
provided by Representative (including, without limitation, the
name and address of the Customer) other than the Confidential
Customer Telecommunications Information shall be proprietary
to the Representative and its parent corporation and other
entities owned or controlled by or under common control with
Representative and its parent corporation (hereafter such
parent corporation and other entities are referred to as the
"Affiliates"), and shall be governed by the Confidentiality
Agreement. Representative and its Affiliates shall have the
right to use the phone number of the Customer in their
business activities, subject to the restrictions under the
first two sentences of Section 3 of this Agreement provided
such name, address and phone number were known by
Representative prior to the Customer becoming a Customer
pursuant to this Agreement.
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b.) Qwest shall train, at each of Representative's telemarketing
sites, Representative's trainers and supervisors with the
intent that those employees will train the remainder of the
employees, staff and agents affiliated with Representative.
All other training and support shall be at Representative's
expense unless otherwise agreed in writing by the parties
hereto.
5. PRODUCT LITERATURE AND MARKETING
Representative, Representative's agents, contractors or franchisees
shall not develop or use any product literature, telemarketing scripts
or other marketing or sales material ("Marketing Material"), other than
that provided by Qwest or approved by Qwest pursuant to this Agreement,
without the prior written consent of Qwest. Qwest shall have ten (10)
business days to approve the initial submittal of any Marketing
Material, but any failure to so approve shall not be deemed approval.
Thereafter, Qwest shall have five (5) business days to approve changes
to the Marketing Material and any failure to approve or disapprove the
changes shall be deemed approval. If Qwest does not approve the initial
Marketing Materials, such disapproval shall be consistent with Qwest's
general residential marketing guidelines, strategies and objectives and
Qwest shall provide to Representative the reasons for such disapproval.
If the initial Marketing Material is not approved within thirty (30)
days of initial submission by Representative ("Material Period"),
Representative may terminate this Agreement by providing written notice
within ten (10) days following the Material Period.
6. ORDER PROCESSING, BILLING AND COLLECTION
a.) Qwest shall have the sole right to accept or reject all orders
in its sole discretion but only for reasons relating to
credit, fraud, invalid PIC authorizations, or the inability to
provide Service in a geographic area. Qwest shall provide to
Representative a suppression file stating the geographic areas
where the Service is not available and Qwest shall update the
file as needed to keep current. If geographic areas are added
following submission of the initial suppression file, the
Revenue Volume commitments in Section 4 of Exhibit B shall be
reduced proportionate to the number of potential customers
eliminated. Upon execution of this Agreement, Qwest shall
provide to Representative a list of NECA and USINTELCO
exchanges where Qwest does not provide the Services, which
list may be updated by Qwest from time to time by written
notice to Representative. Qwest shall provide installation and
other services to the Customers, including customer service,
consistent with that provided to other customers of Qwest.
Representative agrees that all orders submitted to Qwest are
subject to verification by Qwest for accuracy and completeness
and/or the TPV process.
b.) Representative shall submit to Qwest Verbal Authorizations and
LOAs that are compliant in all respects with all laws and
regulations. Further, Representative shall only use
telemarketing scripts and LOAs that have been approved and
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authorized for current use by Qwest. In the event a local
exchange carrier (LEC) or any regulatory or judicial entity
assesses or levies against Qwest or any Qwest Affiliate
(defined herein as Qwest, any entity controlled by Qwest or
its direct or indirect subsidiaries and any entity under
common control with Qwest or its direct or indirect
subsidiaries) any charges, fines, or forfeitures for invalid
PIC authorizations relating to any Qwest Services ordered
through or by Representative (collectively referred to as
"Fines"), Representative shall promptly reimburse Qwest or
Qwest Affiliate for all Fines plus a Qwest management fee not
to exceed {Confidential portion omitted and filed separately
with the Commission} per customer telephone number ordered
through or by Representative that is deemed to be invalid
and/or is not compliant with any law or regulation (defined
herein as "Fees"), provided however, Representative shall not
be liable for Fines or Fees if, in connection with the PIC
change(s) relating to the Fee and/or Fine, Representative has
fully complied with its obligations under this Section 6.b.,
the TPV process, the then current Policy (as hereinafter
defined), Qwest's Verbal Authorization requirements and has
used the LOA approved by Qwest, as applicable. The payment for
any such Fees and Fines may be withheld by Qwest from
otherwise payable commissions. Upon the request of Qwest,
Representative shall promptly and in good faith provide to
Qwest, Qwest Affiliate, or the LEC, at Representative's
expenses, any documentation required by the LEC or regulatory
agency regarding PIC selections or authorizations for
customers sold hereunder. In addition, Representative shall
completely and in good faith cooperate with Qwest and all LECs
and regulatory and enforcement agencies in attempting to
resolve all PIC selection and authorization and related
disputes including, but not limited to, promptly responding to
inquiries or complaints from governmental bodies or private
individuals or entities and providing tape recordings,
original LOAs, TPV data, and order forms containing customer
signatures. Further Qwest, in its sole discretion and without
obligation or liability for possible or actual reduction of
commission payment to Representative, may suspend the
acceptance of orders by Representative in any state where
there is any investigation or litigation involving the sales
practices or marketing activities of Representative. The
obligations under this Section are in addition to
Representative's obligations under Section 8 below.
Notwithstanding the foregoing, if the number of PIC
authorizations which have not been obtained in accordance with
applicable legal requirements exceed {Confidential portion
omitted and filed separately with the Commission} of the total
PIC authorizations obtained by Representative hereunder, Qwest
may terminate this Agreement.
c.) Representative shall provide, at Representative's cost, a copy
of "Qwest's POLICIES AND PROCEDURES REGARDING SLAMMING
PREVENTION" ("Policy") including an "Acknowledgment" form as
set forth in Exhibit D, to all employees, agents, contractors,
or independent distributors involved in the selling of Qwest
services. Qwest may modify such Policy from time to time and
any such modifications shall be provided to Representative by
written notice.
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Representative shall have such employee, agent, contractor, or
independent distributor review the aforementioned policy and
return to the Representative a signed "Acknowledgment" form,
indicating they understand and will comply with the Qwest
policy. Representative further agrees to produce a copy of the
signed "Acknowledgment" form within forty-eight (48) hours,
upon Qwest's request, for any such employee, agent,
contractor, or independent distributor. If Representative does
not comply with the request for providing a signed
"Acknowledgment" form, then Qwest may suspend accepting LOAs
hereunder and/or service order information or terminate this
Agreement immediately.
7. CONFIDENTIALITY
The parties agree to abide by the terms of the Agreement set forth in
Exhibit H ("Confidentiality Agreement"). Representative shall not
disclose the terms and conditions of this Agreement to any person or
entity without the prior written consent of Qwest.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 Representative represents, warrants and covenants to Qwest
that as of the date of this Agreement and continuing for the
term of this Agreement that:
a.) Representative is a (check one):
(X) Corporation
( ) Partnership
( ) Sole Proprietorship
duly organized, validly existing and in good standing
under the laws of Delaware, with a Federal EIN of
, is qualified to do business in all
states necessary for the conduct of its business and
has full and unrestricted power and authority to
execute and perform under this Agreement.
b.) Representative has obtained all licenses, permits and
other authorizations necessary to perform its
obligations under this Agreement and shall maintain
same, as required, in full force and effect during
the term of this Agreement. Representative shall
comply with all applicable tariffs and orders of
judicial and regulatory bodies and all local, state
and federal laws.
c.) Representative shall not participate in any pyramid
or multilevel marketing system in conjunction with
any person who has an agreement with Qwest.
Representative shall 1) appoint a single point of
contact for Qwest regarding all matters pertaining to
this Agreement, 2) commit no act which would reflect
unfavorably upon Qwest.
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d.) Representative shall not knowingly solicit any
existing Qwest or LCI customer not originally sold by
Representative, for the purposes of selling,
upgrading or converting such account to Qwest
service. Representative shall not knowingly solicit
any existing Qwest or LCI customer for the purposes
of converting such account to a competitor of Qwest.
e.) Representative agrees that the consummation of this
Agreement is not in conflict in any respect with, and
will not constitute a default under any other
agreements or judicial or administrative orders to
which Representative is a party or by which it may be
bound;
f.) Representative is not in default or otherwise in
non-compliance in any material respect with any
contract, agreement or other arrangement for goods,
services or technology, the termination of which
might reasonably be expected to have a material
adverse effect on Representative's ability to perform
any of its obligations hereunder.
g.) Representative has the unencumbered right to use all
information or data to be used by Representative in
connection with its performance hereunder.
h.) Representative is not subject to any consent decree,
judgment, injunction, restraining order, settlement
agreement, or agreement or order similar in nature
relating to the conduct of its business.
i.) In addition to its obligations under this Section 8
of this Agreement, Representative hereby covenants
and agrees that during the term of this Agreement
that it will notify Qwest in writing within three (3)
business days of:
i.) Representative becoming aware of any
investigation or threatened investigation of
Representative's sales or marketing
activities by any federal, state, or local
governmental body or agency, that is related
to the performance of this Agreement or
ii.) Representative becoming subject to or
entering into any consent decree, judgment,
injunction, restraining order, settlement
agreement or agreement or order relating to
the conduct of its business, that is related
to the performance of this Agreement.
j.) Qwest may, at its sole discretion, exercised in a
commercially reasonable manner and following written
notice and a three (3) business day "cure" period,
suspend the acceptance of orders from Representative
in any state where there is an investigation or
decree as described in Section 8.1.i following the
receipt of any notice issued by Representative
pursuant to
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Section 8.1.i or if no notice is sent following Qwest
becoming aware of any such investigation or decree.
Qwest, at its sole discretion, exercised in a
commercially reasonable manner, will determine if any
order suspensions will be lifted.
k.) Representative shall, upon reasonable prior notice,
provide to Qwest access to its books, records and
operations so that Qwest may verify Representative's
performance hereunder.
8.2 Qwest represents, warrants and covenants to
Representative that as of the date of this Agreement
and continuing for the term of this Agreement that:
a.) Qwest is a (check one):
(X) Corporation
( ) Partnership
( ) Sole Proprietorship
duly organized, validly existing and in good standing
under the laws of Delaware, is qualified to do
business in all states where necessary for the
conduct of its business and has full and unrestricted
power and authority to execute and perform under this
Agreement.
b.) Qwest has obtained all licenses, permits and other
authorizations necessary to perform its obligations
under this Agreement and shall maintain same, as
required, in full force and effect during the term of
this Agreement. Qwest shall comply with all
applicable tariffs and orders of judicial and
regulatory bodies and all local, state and federal
laws.
c.) Qwest agrees that the consummation of this Agreement
is not in conflict in any respect with, and will not
constitute a default under any other agreements or
judicial or administrative orders to which Qwest is a
party or by which it may be bound;
d.) Qwest is not in default or otherwise in noncompliance
in any material respect with any contract, agreement
or other arrangement for goods, services or
technology, the termination of which might reasonably
be expected to have a material adverse effect on
Qwest's ability to perform any of its obligations
hereunder.
e.) Qwest is not subject to any consent decree, judgment,
injunction, restraining order, settlement agreement
or agreement or order similar in nature relating to
the conduct of its business.
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f.) In addition to its obligations under this Section 8
of this Agreement, Qwest hereby covenants and agrees
that during the term of this Agreement that it will
notify Representative in writing within three (3)
business days of:
i.) Qwest becoming aware of any investigation or
threatened investigation of Qwest's or
Representative's sales or marketing
activities by any federal, state, or local
governmental body or agency, that is related
to the performance of this Agreement;
provided however, Qwest shall have no such
obligation if in its good faith judgment
such notice would impede the investigation,
if it is requested by the investigating
authorities to not so notify Representative,
or if it is prohibited by law or court
order.
ii.) Qwest becoming subject to or entering into
any consent decree, judgment, injunction,
restraining order, settlement agreement or
agreement or order relating to the conduct
of its business, that is related to the
performance of this Agreement.
9. INSURANCE
Representative shall secure and maintain Workers Compensation, General
Comprehensive Liability Insurance and Automobile Insurance in
sufficient amounts to comply with all applicable laws and to cover its
respective obligations under this Agreement, including claims for
bodily and personal injury, death, property damage, and all other harm
caused by or occurring in connection with Representative's performance
under this Agreement. Further certificates of insurance shall be
submitted to Qwest naming Qwest an ADDITIONAL INSURED on such policies
as appropriate, prior to the execution of this Agreement. These
certificates shall certify that no material alteration, modification or
termination of such coverage shall be effective without at least thirty
(30) days advance notice to Qwest. Upon request, Representative shall
furnish insurance certificates as evidence of such coverage.
At a minimum, Representative agrees to maintain the following insurance
coverages.
a.) Comprehensive or Commercial General Liability Insurance:
$1,000,000 per occurrence combined single limit/$2,000,000
general aggregate and will include coverage for the use of
independent contractors, products, and completed operations.
b.) Workers Compensation and Employer's Liability Insurance:
Workers Compensation in the statutory amounts and with
benefits required by the laws of the state in which the Qwest
Services are sold and the states (in which
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employees and/or Representative's independent contractors are
hired, if the state(s) are other than that in which the Qwest
Services are sold).
THE REQUIRED MINIMUM LIMITS OF COVERAGE SHOWN ABOVE WILL NOT
IN ANY WAY RESTRICT OR DIMINISH REPRESENTATIVE'S LIABILITY
UNDER THIS AGREEMENT.
10. TRADEMARKS AND TRADE NAMES
Representative shall sell the Services under the Qwest trademarks and
trade names only in accordance with the manner of use approved in
writing in advance by Qwest. Representative agrees to comply with any
standards for usage of such trademarks and trade names issued or to be
issued by Qwest from time to time. Representative shall not use in its
business or trade or corporate name the name "Qwest" or any name of a
service provided by Qwest, or the Qwest symbol, nor shall it use any
trademark or service xxxx of Qwest or symbol related to Qwest without
the prior, express written consent of Qwest as to the manner of such
use, unless advance provision to do so is made in separate agreement
between the parties. Without limiting the foregoing, Representative
shall not, without Qwest's prior written consent as to the manner of
use, advertise, market or provide information about Qwest services or
use Qwest's trademarks, service marks, logos or other intellectual
property, on the "Internet" or on any print or electronic media.
11. TERM OF AGREEMENT AND TERMINATION
a.) The initial term of this Agreement shall be until
January 5, 2001, and the Agreement shall be renewed
thereafter automatically on a year-to-year basis,
unless sooner terminated as hereinafter provided,
subject to and upon the terms and conditions herein
specified. Either party may terminate this Agreement
at any time during a renewal term upon giving the
other party one hundred twenty (120) days prior
written notice.
b.) Qwest may terminate this Agreement upon written notice to
Representative in the event of:
i.) Representative's failure to attain the monthly
Collected Revenue level specified in Exhibit B.
ii.) Breach by Representative of any warranty or covenant
under this Agreement, or if Representative defaults
or fails to perform any obligation hereunder,
provided however, if such breach, default or failure,
is subject to cure. Representative shall have twenty
(20) days after written notice from Qwest to so cure,
or such longer period as necessary to so cure
provided Representative diligently and in good faith
works to so cure in such longer period; and
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iii.) Insolvency, bankruptcy, receivership or dissolution
of Representative.
iv.) Representative violates any federal, state or local
law or regulation in connection with its performance
hereunder or Representative engages in, participates
in, or allows the perpetration of any fraud against
Qwest.
12. INDEMNIFICATION
Each party shall indemnify, defend and hold the other (and all
officers, directors, employees, agents and affiliates thereof) harmless
from and against any and all claims, demands, actions, losses, damages,
assessments, charges, liabilities, costs and expenses (including,
without limitation, interest, penalties, and attorney's fees and
disbursements) which may at any time be suffered or incurred by, or be
asserted against, any or all of them, directly or indirectly, on
account of or in connection with:
a.) The indemnifying party's default under any provision herein,
breach of any warranty or representation herein, or failure in
any way to perform any obligation hereunder; or
b.) Bodily injury or damage to property (including death) to any
person (including, without limitation, any employee of either
party and any third person), and any damage to or loss of use
of any property, arising out of or in any way relating to the
services or pursuant, directly or indirectly, to this
Agreement.
Each party shall hold harmless and indemnify the other from and against
any claim, cause of action, judgment, liability or expense relating to
or arising out of the acts or omissions of that party's
Representative's employees, contractors and agents.
13. LIABILITY
Except for Representative's liability for consequential damages,
including lost profits, for any breach of the obligations in the first
two sentences of Sections 3, Section 8.1.d., and Section 7, in no event
shall either party be liable for special, indirect, incidental, or
consequential damages, including loss of profits, arising from the
relationship or the conduct of business contemplated herein. With the
exception of willful misconduct, gross negligence and the amount of
commissions due pursuant to Exhibit B, in no event shall Qwest's
liability in connection with this Agreement exceed {Confidential
portion omitted and filed separately with the Commission}. With the
exception of willful misconduct and gross negligence, in no event shall
Representative's liability in connection with this Agreement exceed
{Confidential portion omitted and filed separately with the
Commission}, provided however, {Confidential portion omitted and filed
separately with the Commission}.
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14. MISCELLANEOUS
Representative shall not assign this Agreement or any interest therein
without Qwest's prior written consent. This Agreement shall be governed
by and construed in accordance with the laws of New York. This
Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Provisions
of this Agreement identified by the context to survive the termination
or expiration of this Agreement shall so survive. This Agreement
(including any Exhibits hereto) constitutes the entire Agreement
between the parties hereto with respect to the subject matter hereof,
and it supersedes all prior oral or written agreements, commitments or
understandings, with respect to the matters provided for herein.
15. EXCLUSIVITY
{Confidential portion omitted and filed separately with the Commission}
Should Representative wish to acquire customers in excess of the
commitments set forth in this Section 15, Qwest shall either:
a.) accept those customers and pay Representative pursuant to this
Agreement; or
b.) allow Representative to solicit and sell such excess customers
on behalf of another telecommunications provider, in which
event Qwest shall have no liability to Representative for
payment of any kind for such excess customers. The residential
long distance customers sold on behalf of another
telecommunications provider in accordance with this Section
15.b. shall be representative of the customers obtained for
Qwest and in no event shall Representative reserve or provide
for such other telecommunications provider a Cell, customer
class, segment or group that is superior in any way to the
customers obtained by Representative for Qwest
hereunder. Notwithstanding the provisions of Section 3 to the
contrary, Representative shall have the right to enter into
oral or written agreements with providers of residential long
distance service or otherwise deal with competitors of Qwest
in order to provide for the sale of telecommunications service
to such excess customers. Representative shall also have the
right to enter into oral or written agreements with providers
of residential long distance service or otherwise deal with
competitors of Qwest in order to provide for the sale of
telecommunications services to a person in databases and
Cells, excluding Qwest Customers, disapproved by Qwest or to
which marketing has been terminated pursuant to Section 1.c.
of this Agreement.
16. NOTICES
All notices under this Agreement, whether addressed to Qwest or
Representative, shall be sent by Certified Mail, Return Receipt
Requested ("Certified Mail") or by a nationally
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recognized overnight delivery service ("Overnight Mail") and shall be
deemed received on the date of delivery if delivered by Certified Mail
and on the next business day if delivered by Overnight Mail.
If to Qwest: Qwest Communications Corporation
0000 Xxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
ATTN: Legal Department
With a copy to: Qwest Communications Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
ATTN: Legal Department
If to Representative: Quintelcomm, Inc.
c/x Xxxxxxx Communications, Inc.
One Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxx Xxxx 00000
ATTN: Xxxxxxx Xxxxxxxx
With a copy to: Xxxxxxxx X. Xxxx, Esq.
Feder, Kaszovitz, Isaacson, Weber,
Xxxxx & Bass LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
17. ARBITRATION
Except for the right of either party to apply to a court of competent
jurisdiction for a temporary restraining order, a preliminary
injunction, or other equitable relief, any claim or controversy arising
out of or related to this Agreement, shall be settled by binding
arbitration administered by the American Arbitration Association under
its Commercial Arbitration with the matter to be heard in Washington,
D.C. The arbitration shall be conducted in accordance with the United
States Arbitration Act (Title 9, U.S. Code) notwithstanding any choice
of law provision in this Agreement. The parties agree that judgment
upon the award rendered in such arbitration may be entered in and
enforced by any court of competent jurisdiction. Each party shall bear
the cost of preparing and presenting its case. The cost of the
arbitration, including the fees and expenses of the arbitrator(s) will
be shared equally by the parties.
Each of the parties shall select one arbitrator; the party requesting
arbitration shall name its arbitrator together with its notice
demanding arbitration and the other party shall name its arbitrator
within fifteen (15) days after the giving of such notice. If the second
party fails to notify the first party of the appointment of its
arbitrator within the time specified,
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then the appointment of the second arbitrator shall be made in the same
manner as provided for the appointment of a third arbitrator in a case
where the two arbitrators appointed by the parties are unable to agree
upon that appointment. The two arbitrators so chosen shall meet within
ten (10) days after the second arbitrator is appointed and the two
arbitrators shall together appoint a third arbitrator. If the two
arbitrators are unable to agree upon that appointment within thirty
(30) days after the appointment of the second arbitrator the third
arbitrator shall be selected by the parties themselves if they can so
agree within a further period of ten (10) days. If the parties do not
so agree, then either party, on behalf of both and on notice to the
other, may request such appointment by the American Arbitration
Association (or successor organization) in accordance with its ten-
prevailing rules or if the American Arbitration Association (or
successor organization) shall fail to appoint the third arbitrator
within twenty (20) days after the request is made, then either party
may apply, on notice to the other, to a justice of the Supreme Court of
the State of New York for the appointment of the third arbitrator. Each
arbitrator chosen or appointed pursuant to this Article shall have at
least ten (10) years experience in a calling connected with the
dispute; and the third arbitrator shall be a disinterested person and
an attorney admitted to the practice of law for not less than fifteen
(15) years and experienced in business and financial transactions. The
arbitrators' decision shall be in writing, and counterparts shall be
delivered to the parties. The arbitrators shall have no power to modify
the terms of this Agreement and their jurisdiction is expressly so
limited.
18. NO WAIVER
The failure of either party to insist on the strict performance of any
terms, covenants and conditions of this Agreement at any time, or in
any one or more instances, or its failure to take advantage of any of
its rights shall not be construed as a waiver or relinquishment of any
such rights or conditions any time and shall in no way affect the
continuance in full force and effect of all the provisions and
conditions of this Agreement.
19. SEVERABILITY
If any term or provision of this Agreement or any exhibit is found to
be invalid or unenforceable in any situation or jurisdiction, such
determination shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or enforceability
of the offending term or provision in any other situation or in any
other jurisdiction, and the remaining provisions of this Agreement and
all exhibits shall remain in full force and effect.
20. INTERPRETATION
The parties have participated jointly in the negotiations and drafting
of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of
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proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
21. THIRD PARTY BENEFICIARY
This Agreement confers no rights of any kind upon any third party.
22. INDEPENDENT CONTRACTOR
Representative is an independent contractor and not an agent or
employee of Qwest. Representative has no authority to act for or on
behalf of Qwest. Representative is not authorized to incur any
obligation on behalf of Qwest or to bind Qwest in any manner
whatsoever. Qwest shall incur no obligation to employees, contractors
or other parties utilized by Representative in selling services to
customers for Qwest. Such individuals shall at all times remain
employees, agents or contractors of Representative.
23. AUDIT
Qwest shall provide reports regarding the customers obtained through
Representative with respect to the following information:
a.) A residential Commission Summary Report containing billed
revenue information by ANI by service type on a monthly basis;
b.) A weekly report of all residential Customer Account Record
Exchange ("CARE") codes by ANI including the In-House
Disconnect Report (2200 Report); and
c.) A weekly First Call Report by ANI.
The parties shall mutually agree in writing on any additional reports
or information regarding Representative-sold Customers reasonably
requested by Representative.
Not more than twice annually and upon not less than fifteen (15) days
written notice to the other party, Representative shall have the right
to engage a certified public accounting firm or such other assistance,
other than the assistance of a direct competitor, as it deems desirable
to conduct an audit of all books and records of Qwest directly related
to the calculation and/or payment of commissions hereunder by either,
but excluding the call detail of Qwest customers and Qwest switch
tapes. Either party may require any person or firm retained for this
purpose to execute a nondisclosure agreement in favor of the other
party. Such audit shall be conducted during regular business hours at
Qwest's offices where such books and records are regularly maintained
and shall be paid for by the requesting party. If the Audit discloses
any overpayments of commissions by Qwest, Qwest will have the right to
offset Representative commissions against any commissions due or owed.
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In the event that as a result of such audit, Representative alleges an
underpayment to Representative of its commissions due hereunder,
Representative shall have the right to appoint an independent firm of
certified public accountants to examine such books and records, and in
the event that such accountants and Qwest's firm of certified public
accountants are unable to resolve the discrepancy within thirty (30)
days thereafter, the two accounting firms shall appoint a third firm of
certified public accountants to resolve the dispute and the decision of
such third accounting firm shall be final and binding upon Qwest and
Representative. Qwest shall forthwith pay to Representative the amount
of any underpayment determined to be due to Representative, and
Representative shall forthwith pay to Qwest the amount of any
overpayment ultimately determined to be due to Qwest. The costs of the
third accounting firm engaged pursuant to this paragraph shall be paid
by Representative, unless it is ultimately determined that there has
been an underpayment to Representative of its commissions, in which
case Qwest shall pay the cost of the third accounting firm. In
addition, if the underpayment is greater than five percent (5%) of the
commission payment(s) to Representative in issue, Qwest shall pay the
costs for Representative's first accounting firm.
24. FORCE MAJEURE
Neither Qwest nor Representative will be liable for loss or damage or
deemed to be in breach of this Agreement if its failure to perform its
obligations result from (a) compliance with any law, ruling, order,
regulation, requirement of any federal, state or municipal government
or department or agency thereof or court of competent jurisdiction; (b)
acts of God; (c) acts or omissions of the other party; (d) fires,
strikes, war, insurrection or riot; (e) or any other cause beyond its
reasonable control. Any delay resulting therefrom will extend
performance accordingly or excuse performance, in whole or in part, as
may be reasonable.
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25. EFFECTIVE
This Agreement shall become effective only upon approval and signature
of an officer of Qwest.
26. SURVIVAL
The obligations set forth in the first two sentences of Section 3,
Section 7, Section 12, Section 13, the last paragraph of Section 2 of
Exhibit B and any other provision by its context that is intended to
survive the termination or expiration of this Agreement, shall so
survive.
IN WITNESS WHEREOF, the parties have executed this Agreement intending to be
legally bound.
QWEST COMMUNICATION SERVICES QUINTELCOMM, INC.
By: /s/ By: /s/ Xxxxxxx Xxxxxxxx
---------------------------- -------------------------
Title: Title: Chairman
---------------------------- -------------------------
Date: Date: 10/28/98
---------------------------- -------------------------
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EXHIBIT A
I. Representative's nonexclusive territory ("Territory") shall be the
contiguous forty-eight states of the Continental U.S. and Hawaii
(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"). If Qwest offers other territories in the US to other
residential sales representatives selling on a national basis, such
other territories shall be added to Representative's territory
hereunder.
II. Services:
1. Q,Home
2. 9(cent) per minute (interstate) 24 hours/7 days with $4.95 MRC
3. Difference Card and WorldCard Plus calling card
4. Home 800
5. Residential base international
6. Residential International Tell the World
III. The services shall include substantially similar services of Qwest's
affiliated corporations. All Services and rates will be provided in
accordance with Qwest's tariffs and are subject to change in accordance
with Section 1 of the Agreement. Day, Evening and Night/Weekend periods
are as defined in Qwest's tariffs.
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EXHIBIT B
COMMISSIONS
1. INSTALLATION COMMISSION
During the term of this Agreement, Qwest shall pay Representative
{Confidential portion omitted and filed separately with the Commission}
for each newly installed Customer for the Services in the Territory
upon said Customer's first usage, provided said usage is within
{Confidential portion omitted and filed separately with the Commission}
from installation ("Installation Commission(s)"). "First usage" shall
be defined as any activity on either Qwest's Dial One service or
connected calling card service. "Newly installed customers" shall
include Customers obtained by Representative hereunder who previously
had Qwest or LCI residential service and disconnected that service but
who were not previously obtained by Representative hereunder or under
the LCI agreement. Neither Installation Commissions nor Usage
Commissions shall be paid on LOAs or Verbal Authorizations submitted
from customers who are existing Qwest or LCI residential customers,
home 800 accounts or for any usage on a calling card service that is
not a connected calling card service. "Connected calling card service"
shall mean calling card service where there is at least one call made
on "Dial One" service (sometimes called "PIC'd service") that is
provided by Qwest in conjunction with the calling card. {Confidential
portion omitted and filed separately with the Commission}.
2. USAGE COMMISSION
Subject to Section 2.a., Qwest shall pay Representative a commission on
"Billed Revenue" for sales of the Services in the Territory pursuant to
this Agreement ("Usage Commission(s)"). Usage Commissions shall be
payable for "newly installed Customers" and for Customers originally
obtained by Representative who disconnected and were resigned by Qwest
by using a Representative-funded promotion.
BILLED REVENUE COMMISSION
RATE
{Confidential portion omitted and filed separately with the Commission}
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EXHIBIT B
Except as set forth in the following sentence, Usage Commissions shall
be paid following termination or expiration of this Agreement for any
reason until the date Usage Commissions equal or are less than
{Confidential portion omitted and filed separately with the
Commission}, for a consecutive two (2) month period, provided
Representative does not knowingly, directly or indirectly, engage in a
program to encourage or solicit Customers to discontinue using the
Service. No commission shall be payable following the termination of
this Agreement by Qwest in connection with Representative's failure to
comply with any obligation under the first sentence of Section 3 of
this Agreement.
a.) Qwest shall pay Usage Commissions based on interchange toll
billed by Qwest to Customers for the Services sold hereunder
including "Qwest Surcharges" and excluding taxes and "Mandated
Surcharges", less a percentage related to Qwest estimated
unbillables, uncollectables and LEC holdbacks ("Percent"),
which Percent is currently {Confidential portion omitted and
filed separately with the Commission} (referred to as "Billed
Revenue"). Mandated Surcharges shall mean government or LEC
mandated charges passed through by Qwest to the Customer
essentially without xxxx-up, including but not limited to
PIXIE charges and universal service funds charges. Qwest
Surcharges shall mean all surcharges other than Mandated
Surcharges. Qwest Surcharge and Mandated Surcharges may be
combined into one surcharge in a Customer's xxxx.
{Confidential portion omitted and filed separately with the
Commission}
b.) Qwest reserves the right to reduce from commissions any amount
due to Qwest by Representative under this Agreement.
c.) Customers and the associated "Billed Revenue" obtained by
Representative pursuant to the Residential Distributor Program
Agreement, ("LCI Agreement"), dated January 5, 1998, between
LCI International Telecom Corp. ("LCI") and Representative
shall be included as Billed Revenue hereunder for purposes of
paying Usage Commissions and calculating the Commission Rate.
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EXHIBIT B
3. 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 (180) days after install by Qwest. Usage Commissions
will be paid by Qwest approximately forty-five (45) days following the
end of the month in which the Billed Revenue is billed.
4. REVENUE VOLUME COMMITMENTS
Representative shall generate and maintain the following monthly
Revenue (defined as Billed Revenue minus the Percent) within the
applicable Measuring Periods:
{Confidential portion omitted and filed separately with the Commission}
Average Revenue shall be determined at the end of each Measuring
Period.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
QWEST COMMUNICATIONS SERVICES QUINTELCOMM, INC.
By: /s/ By: /s/Xxxxxxx Xxxxxxxx
------------------------ -------------------------
Title: Title: Chairman
------------------------ -------------------------
Date: Date: 10/28/98
------------------------ -------------------------
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EXHIBIT C
Inbound and outbound telemarketing ("Verbal Authorizations") and by obtaining
Customer-executed, written Primary Interchange Carrier ("PIC") change
authorizations in mutually agreed upon form ("LOA") through direct mail
campaigns all in accordance with the then applicable federal and state laws and
regulations regarding PIC change authorizations. Representative shall record all
Verbal Authorizations. Representative understands that Verbal Authorizations
obtained by outbound telemarketing and by inbound telemarketing in certain
states shall be subject to third party verification ("TPV") as described in
section 3 of this Agreement.
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EXHIBIT D
Page 1 of 4 Pages
"QWEST'S POLICIES AND PROCEDURES REGARDING SLAMMING
PREVENTION"
ADVISORY TO ALL REPRESENTATIVES SELLING QWEST SERVICES:
All Representatives/Distributors selling Qwest's 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 on submitted LOAs - 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 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 sees a new long distance carrier name and thinks
something is wrong. Please ask your customers to inform the appropriate
persons 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 decision-maker and assuming that the
person would be satisfied with Qwest service.
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.
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EXHIBIT D
Page 2 of 4 Pages
- 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:
- 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 or the person whose name appears on the telephone
xxxx. It is essential that the person signing the LOA has authority to
change long distance carriers. Note that children, roommates,
receptionists, secretaries and assistants typically do not have the
authority to change long distance carriers for an individual or a
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.
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EXHIBIT D
Page 3 of 4 Pages
ACKNOWLEDGMENT
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 a 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.
/s/Xxxxxxx Xxxxxxxx
------------------------------------------------------
Signature of Representative Selling Qwest Long Distance
Date 10/28/98
---------------------
/s/Xxxxxxx Xxxxxxxx
------------------------------------------------------
Print Name
Home Phone Number
----------------------------
/s/Xxxxxxx Communications
------------------------------------------------------
Print Name of Company
Channel Code
------------------
Organization Code
-------------
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EXHIBIT D
Page 4 of 4 Pages
ACKNOWLEDGMENT BY SALES AGENT
This will verify that on behalf of Xxxxxxx Communications, 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 a 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 limitation, termination
of the sales agent relationship and enforcement of all applicable legal rights
and remedies.
/s/Xxxxxxx Xxxxxxxx Date 10/28/98
--------------------------------------------- ---------
Signature of Representative
/s/Xxxxxxx Xxxxxxxx
---------------------------------------------
Print Name
Business Phone Number
------------------------
/s/Xxxxxxx Communications
---------------------------------------------
Print Name of Company
Channel Code
---------------------------------
Organization Code
---------------------------------
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EXHIBIT E
MINIMUM COMPUTER EQUIPMENT
I. The following IBM compatible equipment shall be used by Representative
for the purpose of account information and the electronic transfer of
LOAs to Qwest. All reporting to the Representative by Qwest shall be
done via electronic files.
A. Hardware
1. PC Compatible with a Pentium 100+ MHz, recommended;
486 66 MHz, minimum
2. 16 Meg of RAM on board, minimum
3. 520 MB IDE Hard Drive, minimum
4. 28.8 internal/external FAX modem, recommended; 14.4
minimum
5. VGA color Monitor, minimum
6. 101 keyboard style
7. A working printer for reports. A wide carriage type
(EPSON FX) is preferred but not necessary.
B. Software
1. DOS 6.20 or better
2. Windows 3.11 for work groups (Windows 95 is also
supported)
3. Communications package (Quicklink or PROCOMM PLUS is
preferred, but not necessary.)
4. Microsoft Office (Optional)
5. Microsoft Access, Version 2.0 (Office 97 version not
supported) if using current versions of Qwest
provided data entry software.
6. Microsoft Internet Explorer (most recent version),
recommended; Netscape, optional
7. Wildcat browser - Qwest provided
II. Distributor may use its own or other programs for electronic submission
of LOAs, as long as files meet Qwest file type and layout requirements.
III. The above listing is a minimum guideline and is subject to change by
Qwest. Qwest should be contacted prior to any purchases of equipment or
software for confirmation of latest standards.
IV. Qwest does not currently support an Apple/Macintosh or UNIX environment.
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EXHIBIT F
Page 1 of 3 Pages
AMENDMENT NO. 1
This Amendment, effective as of September 1, 1998, amends the amended
Residential Distributor Program Agreement, dated September 1, 1998
("Agreement"), by and between LCI International Telecom Corp., d.b.a. Qwest
Communications Services ("Qwest") and Quintelcomm, Inc. ("Representative").
1. The Agreement is hereby amended as follows:
A. During the term of the Agreement, Representative shall,
working in cooperation with {Confidential portion omitted and
filed separately with the Commission} offer a program known as
"Fly Free America", whereby newly acquired Qwest customers
receive a pair of free airline ticket vouchers after being a
PIC'd Qwest customer for 60 consecutive days and a second pair
of free airline ticket vouchers after being a PIC'd Qwest
customer for 240 consecutive days. The airline tickets must be
used in conjunction with the "Fly Free America" program. The
vouchers shall be redeemable for domestic departure to 31
resort destinations through major U.S. airlines including
Continental, United, Delta, U.S. Airways, Hawaiian Airlines,
Alaska Airlines and other mutually agreed upon airlines, with
blackout periods no more than 10% of the calendar year. The
cost of the vouchers, TPV, IVR and fulfillment expenses shall
be Representative's responsibility. The foregoing shall be
referred to as the "Airline Program".
Representative shall provide an inbound toll free number for
use by customers in obtaining responses to customer's
questions. The Airline Program is separate and distinct from
other promotional programs previously authorized by Qwest
including but not limited to astrological promotions.
B. Representative shall not market a program similar to the
Airline Program on behalf of any competitor of Qwest provided
that:
1.) Qwest accepts all customer volume generated by the
Airline Program through March 1, 1999 ("Test Period")
and,
2.) Qwest may modify or terminate the Airline Program
upon 60 days prior written notice to Representative,
with any such termination or modification being
effective no earlier than March 1, 1999, but any such
modification may be limited to a reduction of the
number of customers Qwest is required to accept
provided that such acceptance rate may not be less
than the previous quarter's average monthly sales
rate, and
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EXHIBIT F
Page 2 of 3 Pages
3.) Notwithstanding Section 3 of the Agreement, Qwest
understands that Representative's arrangement
regarding the marketing of the "Fly Free America"
Airline Program for long distance services is not
exclusive with respect to print or point of purchase
advertising, and that Representative will receive
revenue in connection with print or point of purchase
marketing of long distance service using programs
similar to the "Fly Free America" Airline Program.
C. During the Test Period Quest shall not solicit any current or
new third party sales representative to offer a program
similar to the Airline Program. Until September, 1, 1999,
Qwest will not enter into a third party sales representative
contract with any person or entity whose primary offer is a
program similar to the Airline Program. Any existing third
party sales representative of Qwest may utilize a program
similar to the Airline Program as long as Qwest has complied
with the first sentence of this Paragraph 1.C.
D. The parties shall review the success of the Airline Program in
January, 1999, including consideration by Qwest of paying an
"up-front" commission.
E. Representative shall provide Qwest with a rolling day forecast
of sales for the Airline Program.
F. No other promotions shall be used by Representative to market
Qwest Services under the Airline Program (other than the free
airline vouchers described in Paragraph 1.A. hereof).
G. Upon termination of the Airline Program pursuant to Section
B.2. hereof, Representative may market a program similar to
the Airline Program on behalf of a competitor of Qwest to any
Cell disapproved by LCI or to any "excess" customers pursuant
to Section 15 of this Agreement.
H. Notwithstanding Sections 1 and 2 of Exhibit B of the
Agreement, Qwest shall pay Representative as follows for
customers obtained pursuant to this Amendment:
1.) {Confidential portion omitted and filed separately
with the Commission} for each Qwest customer whose
long distance service is confirmed by the LEC as
switched to Qwest, and
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EXHIBIT F
Page 3 of 3 Pages
2.) {Confidential portion omitted and filed separately
with the Commission} of the Billed Revenue for such
customers (including Qwest Surcharges and excluding
taxes and Mandated Surcharges, less the percentage
related to Qwest estimated unbillables,
uncollectibles and LEC hold backs described in
Section 2.A. of Exhibit B of this Agreement).
I. All capitalized terms not defined herein shall be as defined
in the Agreement.
II. All other terms and conditions of the Agreement remain unchanged.
QWEST COMMUNICATIONS SERVICES
By:
--------------------------------
-----------------------------------
(Print Name and Title)
QUINTELCOMM, INC.
By: /s/Xxxxxxx Xxxxxxxx
--------------------------
Xxxxxxx Xxxxxxxx, Chairman
----------------------------------
(Print Name and Title)
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EXHIBIT G
AMENDMENT NO. 2
This Agreement amends the Residential Distributor Program Agreement, dated
September 1, 1998 ("Agreement"), by and between LCI International Telecom Corp.,
d.b.a. Qwest Communications Services ("Qwest") and Quintelcomm, Inc.
("Representative").
I. The Agreement is hereby amended as follows:
A. This Amendment shall be effective for August, September and
October 1998 only. Representative shall obtain at least
{Confidential portion omitted and filed separately with the
Commission}. The commissions due as a result of the first
usage for the {Confidential portion omitted and filed
separately with the Commission}such Customers each month shall
be as set forth in the Agreement. The commissions due as a
result of the first usage for the next {Confidential portion
omitted and filed separately with the Commission} Commission
payments under this Amendment may be made based on good faith
estimates by Qwest. A "true up" shall be performed when
adequate and accurate reporting is available and additional
payments or chargebacks, as applicable, shall be made.
After obtaining at least {Confidential portion omitted and
filed separately with the Commission} installed Customers in
any month, Representative may, following written notice to
Qwest, accelerate the start of obtaining the "second"
{Confidential portion omitted and filed separately with the
Commission} installed Customers, that would otherwise begin in
the following month.
B. All capitalized terms not defined in the Amendment shall be as
defined in the Agreement.
II. All other terms and conditions of the Agreement remain unchanged.
QWEST COMMUNICATIONS SERVICES
By: Date
----------------------------- -------------------
--------------------------------
(Print Name and Title)
QUINTELCOMM, INC.
By: /s/ Xxxxxxx Xxxxxxxx Date 10/28/98
----------------------- --------------------
Xxxxxxx Xxxxxxxx, Chairman
----- --------------------------
(Print Name and Title)
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EXHIBIT H
CONFIDENTIALITY AGREEMENT
This is a Confidentiality Agreement dated September, 1998, between LCI
International Telecom Corp., d.b.a. Qwest Communications Services and
Quintelcomm, Inc.
The parties to this Confidentiality Agreement have agreed to the following terms
governing the confidentiality of certain information to be exchanged between the
parties:
DEFINITIONS
A. For the purposes of this Confidentiality Agreement, "Confidential
Information" means all information in whatever form transmitted
relating to the past, present, or future business affairs, including
without limitation, research, all Qwest customer information,
development, or business plans, operations or systems, of either party
or a third party whose information either party has in its possession
under obligations of confidentiality, which (i) is disclosed by either
party or its affiliates, or (ii) is produced or developed during the
working relationship between the parties and which could, if disclosed,
result in competitive harm to either party. Confidential Information
shall also include the terms and conditions of the Residential
Distributor Program Agreement dated September 1, 1998, between the
parties hereto ("Representative Agreement").
Confidential Information shall not include any information of either
party that (i) is already known to the other party at the time of its
disclosure; (ii) is or becomes publicly known through no wrongful act
of either party; (iii) is communicated to a third party (other than a
"third party verifier" with express written consent of the
nondisclosing party; (iv) is lawfully required to be disclosed by law,
provided that before making such disclosure the disclosing party shall
promptly give the nondisclosing party written notice and an adequate
opportunity to raise an objection or take action to assure confidential
handling of such information.
B. The term "affiliate" shall mean any person or entity controlling,
controlled by or under common control with a party.
USE OF INFORMATION
The parties hereto mutually agree to:
A. Use the Confidential Information solely for the performance of their
respective obligations under the Representative Agreement and shall not
use the Confidential Information for any other reason whatsoever.
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EXHIBIT H
B. As long as the Confidential Information is confidential, neither party
shall disclose any Confidential Information it receives from the other
party to any person or entity except employees of the parties and its
affiliates who have a need to know and who have been informed of the
other party's obligations under this Confidentiality Agreement. The
parties shall use not less than the same degree of care to avoid
disclosure of such Confidential Information as each party uses for its
own confidential information of like importance and, at a minimum,
shall exercise reasonable care.
OWNERSHIP
All Confidential Information disclosed by either party under this
Confidentiality Agreement in tangible form (including, without limitation,
information incorporated in computer software or held in electronic storage
media) shall be and remain property of the disclosing party.
All such Confidential Information shall be returned to the disclosing party
promptly upon written request and shall not be retained in any form by the other
party. The rights and obligations of the parties under this Confidentiality
Agreement shall survive any such return of Confidentiality Information.
TERMINATION
In the event of termination of the Representative Agreement, all rights and
obligations under this Agreement shall survive with respect to Confidential
Information disclosed prior to such termination.
LIABILITY
A. The parties acknowledge that Confidential Information is valuable and
unique and that disclosure will result in irreparable injury to the
disclosing party. Accordingly, the parties agree that in the event of a
breach or threatened breach of the terms of this Confidentiality
Agreement, the disclosing party shall be entitled to an injunction in
addition to and not in lieu of any other legal or equitable relief
including money damages.
B. Neither party shall in any way or in any form disclose, publicize or
advertise in any manner the discussions that are the reasons for this
Confidentiality Agreement or the discussions or negotiations covered by
this Confidentiality Agreement without prior written consent of the
other party.
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EXHIBIT H
C. The disclosing party shall not have any liability or responsibility for
errors or omissions in any Confidential Information disclosed under
this Confidentiality Agreement or for any business decisions under this
Confidentiality Agreement.
COMPLETE AGREEMENT; AMENDMENTS; GOVERNING LAW
This Confidentiality Agreement (i) is the complete agreement of the parties
concerning this subject matter and supersedes any prior such agreements; (ii)
may not be amended except in writing signed by both parties; (iii) shall be
governed by and construed in accordance with the laws of the State of New York
without regard to its choice of law provisions; and (iv) is executed by
authorized representatives of each party.
QWEST COMMUNICATIONS SERVICES
By
----------------------------
Title
-------------------------
QUINTELCOMM, INC.
By /s/ Xxxxxxx Xxxxxxxx
----------------------------
Title Chairman
-------------------------
37
