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EXHIBIT 10.30
MARKETING AGREEMENT
BY AND BETWEEN
LECSTAR TELECOM, INC.
AND
XXXX ENERGY MANAGEMENT CORPORATION
DATED: NOVEMBER 30, 2000
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TABLE OF CONTENTS
EXHIBIT LIST...................................................................A
SCHEDULES......................................................................A
LECSTAR TELECOM, INC. .........................................................1
1 DEFINITIONS...........................................................1
1.1 ACTIVE CUSTOMER.......................................................1
1.2 ADVERSE REGULATORY DETERMINATION......................................1
1.3 AFFILIATE(S)..........................................................1
1.4 AGREEMENT.............................................................2
1.5 COMMISSION............................................................2
1.6 CONFIDENTIAL INFORMATION..............................................2
1.7 CONTRACT RATE.........................................................2
1.8 RESERVED..............................................................2
1.9 DIRECT COSTS..........................................................2
1.10 DISCLOSING PARTY......................................................2
1.11 LECSTAR CUSTOMER SUPPORT..............................................2
1.12 INACTIVE CUSTOMER.....................................................2
1.13 XXXX(S)...............................................................2
1.14 MARKETER CUSTOMER SUPPORT.............................................2
1.15 MARKETER REVENUE PERCENTAGE...........................................2
1.16 PARTY(IES)............................................................2
1.17 PRODUCT PACKAGE(S)....................................................2
1.18 QUALIFIED CUSTOMER....................................................3
1.19 RATE..................................................................3
1.20 RECIPIENT.............................................................3
1.21 REGULATED SERVICE(S)..................................................3
1.22 REGULATORY AUTHORITY..................................................3
1.23 SERVICE(S)............................................................3
1.24 SERVICE POLICIES......................................................3
1.25 TERM..................................................................3
1.26 TERMINATION DATE......................................................3
1.27 TERRITORY.............................................................3
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1.28 TRADE SECRETS.........................................................3
1.29 USE POLICY............................................................3
1.30 WARM TRANSFER.........................................................3
2. TERM & TERMINATION....................................................4
2.1 TERM..................................................................4
2.2 EARLY TERMINATION.....................................................4
2.3 NOTICE AND OPPORTUNITY TO CURE........................................4
2.4 EFFECT OF TERMINATION.................................................4
3 MARKETING.............................................................5
3.1 OBLIGATION TO MARKET AND PROMOTE......................................5
3.2 AMENDMENTS TO EXHIBIT.................................................5
3.3 AMENDMENTS TO EXHIBIT.................................................6
3.4 MARKETING MATERIALS...................................................6
3.7 MARKETING OF COMPETING PRODUCTS.......................................7
4. PROVISION OF SERVICE(S)...............................................7
4.1 OBLIGATION TO PROVIDE SERVICES........................................7
4.2 QUALIFICATION OF CUSTOMERS BY LECSTAR.................................8
5. BILLING, PAYMENT AND REPORTING........................................8
5.1 EXCHANGE OF INFORMATION...............................................8
5.2 BILLING AND COLLECTING................................................8
5.3 PAYMENT...............................................................9
5.4 ADDITIONAL COMMISSIONS/MOST FAVORED NATION............................9
5.5 STATEMENTS............................................................9
6. SUPPORT...............................................................9
6.1 MARKETER CUSTOMER SUPPORT.............................................9
6.2 LECSTAR CUSTOMER SUPPORT.............................................10
6.3 TRANSFER OF SUPPORT REQUESTS.........................................10
7. AUDIT................................................................10
8. CONFIDENTIALITY......................................................10
8.1 ACKNOWLEDGMENT.......................................................10
8.2 EMBODIMENTS..........................................................11
8.3 PROTECTION OF CONFIDENTIAL INFORMATION...............................11
8.4 PROTECTION OF TRADE SECRETS..........................................11
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8.5 EXCEPTIONS...........................................................11
8.6 INJUNCTIVE RELIEF....................................................11
8.7 SURVIVAL.............................................................11
9 WARRANTIES...........................................................12
9.1 MARKETER'S REPRESENTATIONS AND WARRANTIES............................12
9.2 LECSTAR'S REPRESENTATIONS AND WARRANTIES.............................12
9.4 RESTRICTION ON USE OF MARKETER'S CUSTOMER INFORMATION................13
10. COMPLIANCE WITH LAWS.................................................13
10.1 COVENANT.............................................................13
10.2 INDEMNITY BY LECSTAR.................................................13
10.4 INDEMNITY BY MARKETER................................................13
11. GENERAL PROVISIONS...................................................13
11.1 HEADINGS.............................................................13
11.2 TIME OF ESSENCE......................................................13
11.3 SEVERABILITY.........................................................13
11.4 GOVERNING LAW........................................................13
11.5 NOTICES..............................................................14
11.7 ASSIGNMENT...........................................................14
11.8 PRONOUNS.............................................................14
11.9 AGREEMENT CONFIDENTIAL...............................................14
11.10 PARTNERSHIP..........................................................14
11.11 ENTIRE AGREEMENT.....................................................14
11.12 BINDING AGREEMENT....................................................15
11.13 COUNTERPARTS.........................................................15
11.14 QUALIFICATION OF INDEMNITIES.........................................15
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EXHIBIT LIST
"A" SERVICES, PRODUCT PACKAGES AND COMMISSIONS
"B" TERRITORY
"C" LECSTAR CUSTOMER SUPPORT
"D" MARKETER CUSTOMER SUPPORT
SCHEDULES
3.1.2 MARKETING ACTIVITIES
6.3 RULES FOR PAYMENT APPLICATION
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MARKETING AGREEMENT
THIS MARKETING AGREEMENT made and entered into this 30th day of
November, 2000, and effective the 1st day of July, 2000 ("Effective Date"), by
and between LecStar Telecom, Inc., a Georgia corporation with principal offices
at 4501 Circle 00 Xxxxxxx, Xxxxx 0000, Xxxxxxxx X, Xxxxxxx, Xxxxxxx 00000
(hereinafter referred to as "LecStar") and the Xxxx Energy Management
Corporation, a Georgia corporation with principal offices at 0000 XXX Xxxxxxx,
Xxxxxxxx, XX 00000 (hereinafter referred to as "Marketer").
WHEREAS, LecStar is both a facilities based provider and a seller of
residential and commercial local and long-distance telephone services
("Telephone Services"); and
WHEREAS, Marketer wishes to engage LecStar to either directly provide
or contract with qualified, licensed telecommunications carriers to provide for
the delivery, maintenance, and support of the Telephone Services so that
Marketer may offer such Telephone Services to its customers; and
WHEREAS, Marketer wishes LecStar to grant Marketer the right to market
and sell Telephone Services subscriptions and earn a commission for such
subscription; and
WHEREAS, LecStar desires to grant such right to Marketer; and
WHEREAS, Marketer and LecStar desire to enter into this Agreement
authorizing Marketer to market and distribute the Telephone Services to its
Customers, as well as confirm the understanding relative to Commissions Marketer
may earn.
NOW, THEREFORE, in consideration of the mutual promises, agreements and
covenants undertaken herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is agreed by and
between LecStar and Marketer as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
1.1 ACTIVE CUSTOMER. "Active Customer" shall have the meaning set forth
in Section 4.2.2.
1.2 ADVERSE REGULATORY DETERMINATION. "Adverse Regulatory
Determination" shall mean any determination by any Regulatory Authority that (i)
the Agreement, in whole or in part, is unlawful or unenforceable, or (ii)
adversely affects the Agreement or any right or privilege of LecStar thereunder
or any Service(s) or Product Package(s) (including without limitation the cost
to LecStar or to any Affiliate for same or the pricing for same).
1.3 AFFILIATE(s). "Affiliate(s)" shall mean each subsidiary, affiliate,
successor or permitted assign of LecStar, in all instances whether now existing
or hereafter acquired or formed, which are designated by LecStar to provide
Service(s) or Product Package(s) to Active Customers.
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1.4 AGREEMENT. "Agreement" shall mean this Marketing Agreement between
LecStar and Marketer, including all exhibits and attachments hereto, as the same
may be amended from time to time.
1.5 COMMISSION. "Commission" shall have the meaning set forth at
Section 5.3.
1.6 CONFIDENTIAL INFORMATION. "Confidential Information" shall have the
meaning set forth at Section 8.
1.7 CONTRACT RATE. "Contract Rate" shall mean that rate of interest
equal to the lesser of (i) twelve percent (12%) per annum or (ii) the highest
rate allowed by law.
1.8 RESERVED.
1.9 DIRECT COSTS. "Direct Costs" shall mean all costs incurred by
LecStar or any Affiliate in performance of, or attributable to the performance
of, duties hereunder, and shall include without limitation charges, surcharges
or taxes imposed upon LecStar or any Affiliate by any other provider of
telecommunications services or by any Regulatory Authority.
1.10 DISCLOSING PARTY. "Disclosing Party" shall have the meaning set
forth in Section 8.1
1.11 LECSTAR CUSTOMER SUPPORT. "LecStar Customer Support" shall mean
the direct assistance provided by LecStar to Active Customers or Qualified
Customers, as described in Exhibit "C".
1.12 INACTIVE CUSTOMER. "Inactive Customer" shall have the meaning set
forth at Section 4.2.2.
1.13 XXXX(s). "Xxxx(s)" shall have the meaning set forth at Section 3.4
1.14 MARKETER CUSTOMER SUPPORT. "Marketer Customer Support" shall mean
the direct assistance provided by Marketer to Active Customers or Qualified
Customers, as described in Exhibit "D".
1.15 MARKETER COMMISSION RATE. "Marketer Commission Rate" shall mean,
with respect to any Service(s) or Product Package(s), the Marketer Commission
Rate corresponding thereto as set forth on Exhibit "A" hereto, as the same may
be amended, supplemented or replaced from time to time.
1.16 PARTY(IES). "Party(ies)" shall mean LecStar and/or Marketer.
1.17 PRODUCT PACKAGE(s). "Product Package(s)" shall mean those Product
Package(s) set forth at Exhibit "A" hereto, as the same may be amended,
supplemented or replaced from time to time, which Product Package(s) consist of
combinations of Service(s).
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1.18 QUALIFIED CUSTOMER. "Qualified Customer" shall have the meaning
set forth at Section 4.2.1.
1.19 RATE. "Rate" shall mean with respect to any Service(s) or Product
Package(s), the Rate corresponding thereto as set forth on Exhibit "A" hereto,
as the same may be amended, supplemented or replaced from time to time.
1.20 RECIPIENT. "Recipient" shall have the meaning set forth in Section
8.1.
1.21 REGULATED SERVICE(s). "Regulated Service(s)" shall mean (i) those
Service(s) which, at the time in question, are regulated by any Regulatory
Authority as to the rates, terms or conditions of provision of such Service(s),
and (ii) any Product Package(s) which contain one or more Service(s) which, at
the time in question, are regulated by any Regulatory Authority as to the rates,
terms or conditions of provision of such Service(s)
1.22 REGULATORY AUTHORITY. "Regulatory Authority" shall mean
individually and collectively (i) the Federal Communication Commission, (ii) any
public service commission, and (iii) any administrative agency, judicial
authority, or other federal, state, municipal, international, or foreign
governmental body or agency having authority over any Service(s), this Marketing
Agreement, the Parties, or any matter related hereto or thereto.
1.23 SERVICE(s). " Service(s)" shall mean those services set forth at
Exhibit "A" hereto, as the same may be amended, supplemented or replaced from
time to time.
1.24 SERVICE POLICIES. "Service Policies" shall have the meaning set
forth at Section 4.1.
1.25 TERM. "Term" shall mean that period of time during which this
Agreement shall be in effect, including all renewals and extensions hereof; and
"termination" shall include both termination and expiration of the term of this
Agreement.
1.26 TERMINATION DATE. "Termination Date" shall mean the date on which
the Term ends, regardless of the cause thereof.
1.27 TERRITORY. "Territory" shall mean the geographic area(s) set forth
at Exhibit "B" hereto, as the same may be amended, supplemented or replaced from
time to time.
1.28 TRADE SECRETS. Trade Secrets" shall have the meaning set forth in
O.C.G.A. Section 10-1-761(4).
1.29 USE POLICY. "Use Policy" shall have the meaning set forth at
Section 3.4.
1.30 WARM TRANSFER. "Warm Transfer" shall mean the transfer of (or to
transfer) live telephone calls directed from one Party to the other, without
requiring the calling party to disconnect the call.
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2. TERM & TERMINATION
2.1 TERM. The Initial Term shall be for a period of five (5) years
commencing upon the Effective Date (the "Initial Term"). Upon the expiration of
the Initial Term or any Renewal Term, the Term hereof shall automatically be
renewed for additional two (2) year terms ("Renewal Term"), unless terminated by
either party upon sixty (60) days written notice prior to the expiration of the
Initial Term or any Renewal Term.
2.2 EARLY TERMINATION. Subject to Section 2.3, without prejudice to
any other remedies, the non-defaulting party shall have the right at any time by
giving written notice to the other Party to terminate the Agreement forthwith in
any of the following events (an "Event of Default"): (i) if the other Party
commits a material breach of any of the terms, representations, warranties or
conditions of this Agreement; or (ii) if the other Party becomes insolvent,
makes a general assignment for the benefit of creditors, suffers or permits an
appointment of a receiver for its business or assets, becomes subject to any
proceedings under any bankruptcy or insolvency law, whether domestic of foreign,
or is liquidated, voluntarily or otherwise. Notwithstanding any provision herein
to the contrary, after the expiration of the Initial Term, either party may
terminate this Agreement on one hundred eighty (180) days written notice to the
other party.
2.3 NOTICES AND OPPORTUNITY TO CURE. Upon the occurrence of an Event of
Default, the non-defaulting Party shall deliver to the defaulting Party a Notice
of Intent to Terminate that identifies in detail the Event of Default. If the
Event of Default is curable and remains uncured for thirty (30) days, the
non-defaulting Party may terminate this Agreement by delivering to the
defaulting Party a Notice of Termination that identifies the effective date of
the termination, which date shall not be less than thirty (30) days after the
delivery of the Notice of Intent to Terminate. In the event the default is
incurable, the non-defaulting Party may terminate this Agreement effective
immediately.
2.4 EFFECT OF TERMINATION. Upon termination of this Agreement for any
cause whatsoever:
2.4.1 All licenses and rights of Marketer provided for hereunder,
including without limitation the right to market or promote the Service(s) and
Product Package(s), shall immediately cease;
2.4.2 Upon termination or expiration of this Agreement for any
reason, LecStar agrees to provide the Service(s) and Product Package(s) to all
Active Customers and to support Active Customers existing as of the termination
date, and Marketer shall be entitled to continue to receive Commissions for each
Active Customer until the termination of such Customer's affiliation with
LecStar. Marketer shall also be entitled to continue to do billing for
Customers, if applicable. Provided in the event of termination because of an
Event of Default by Marketer, Marketer will not continue to receive Commissions.
2.4.3 Termination by either Party will not affect the rights of any
Active Customer under such Active Customer's agreement with LecStar.
2.4.4 Neither Party shall publish or cause to be published any
derogatory,
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disparaging, libelous or slanderous statement or materials of any type with
respect to the other Party or with respect to any of the Service(s) or Product
Package(s).
3. MARKETING
3.1 OBLIGATION TO MARKET AND PROMOTE.
3.1.1 Subject to the terms and conditions hereof, LecStar hereby
designates and appoints Marketer, for the Term, as its Affiliates' non-exclusive
sales representative with respect to the Service(s) and Product Package(s), and
Marketer hereby accepts such designation and appointment. Marketer shall not
obligate or bind LecStar or any Affiliates in any manner whatsoever nor
represent to third parties that it may enter into any binding obligation on
behalf of LecStar or any Affiliates, without the prior express written consent
of LecStar or such Affiliates.
3.1.2 For the Term, Marketer shall exercise commercially
reasonable efforts to market and promote the Service(s) and Product Package(s)
to consumers throughout the Territory (including without limitation Marketer's
own business and residential customers), in accordance with and subject to the
terms and conditions of this Agreement including the marketing activities
described in Schedule 3.1.2. Marketer shall not engage in fraud, dishonesty,
gross negligence or willful misconduct in the performance of its duties
hereunder.
3.2 AMENDMENTS TO EXHIBIT "A".
3.2.1 Service(s) or Product Package(s) may be added to Exhibit "A"
upon the mutual agreement of the Parties. Upon such agreement, LecStar shall
deliver to Marketer a new Exhibit "A" indicating (i) such additional Service(s)
or Product Package(s), (ii) the Rates and Marketer Revenue Percentages
therefore, and (iii) other information therefore indicated on Exhibit "A".
3.2.2 Service(s) or Product Package(s) may be deleted from Exhibit
"A" upon the mutual agreement of the Parties. In addition, LecStar may at any
time and from time to time during the Term, delete Service(s) or Product
Package(s) from Exhibit "A" upon ninety (90) days' written notice to Marketer;
provided, however, anything to the contrary in this Agreement notwithstanding,
LecStar may delete any Service(s) or Product Package(s), with such deletion
effective immediately, in the event of an Adverse Regulatory Determination
affecting such Service(s) or Product Package(s); provided further however, all
Customers accepted by LecStar and subsequently installed prior to the expiration
of the old Service(s) or Product Package(s) will be provided such Service(s)
under the old Package(s) unless such customer chooses to change to a new plan.
Upon any deletion of Service(s) or Product Package(s) from Exhibit "A", LecStar
shall deliver to Marketer a new Exhibit "A" reflecting such deletion.
3.2.3 Rates for specific Service(s) or Product Package(s) set
forth upon Exhibit "A" may be modified upon the mutual agreement of the Parties;
provided, however, that LecStar may modify any Rates upon ten (10) days written
notice to Marketer in the event of any determination by any Regulatory Authority
that directly affects any rates, terms or conditions set forth in any
applicable, then-effective tariff or Service Policies; provided further that, in
the event of a conflict between any Rates and a rate set forth in any
applicable, then-effective tariffs, the rate set forth in
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such tariffs shall control, and Exhibit "A" shall be deemed automatically
amended to reflect such rates. Upon any modification of any Rate set forth on
Exhibit "A", LecStar shall deliver to Marketer a new Exhibit "A" reflecting such
modification. All customers accepted by LecStar prior to the rate modification
will be billed under the prior rate to the extent permitted by law; provided,
however customers opting for new service plans are exempt from this provision.
3.3 AMENDMENTS TO EXHIBIT "B". The Territory may be amended only upon
the mutual Agreement of the parties; provided, however, that LecStar may amend
the Territory to delete from Exhibit "B" any geographic area(s) in the event of
an Adverse Regulatory Determination affecting LecStar's or any Affiliate's
provision of any Service(s) in such geographic area(s), with such deletion
effective immediately. In the event of any amendment to Exhibit "B" hereunder,
LecStar shall deliver to Marketer a new Exhibit "B" reflecting such amendment.
3.4 MARKETING MATERIALS. During the Term, the Parties shall create or
cooperate in the creation of, or either Party may deliver to the other Party,
certain news releases, publicity or marketing and promotional materials which
describe Marketer, LecStar, any Affiliate, or any Service(s) or Product
Package(s) (collectively "Marketing Materials"). In connection therewith, each
Party grants to the other Party a nonexclusive, nontransferable license to (i)
distribute such Marketing Materials to third parties, and (ii) use the
trademarks, service marks, trade names, logos, and symbols used in such
Marketing Materials to denote the other Party or any product or service of the
other Party (each a "Xxxx" and collectively the "Marks") as reasonably necessary
to perform such Party's obligations under this Agreement and only in accordance
with the terms of this Agreement. The Parties shall use the other Party's Marks
only in accordance with such Party's or Affiliates' (as the case may be)
then-current use policies for the Marks ("Use Policy"), which shall be made
available upon request; provided, however, any provision of the Use Policy to
the contrary notwithstanding, the license granted in this Section 3.4 shall not
entitle either Party to make any use, and the Parties shall make no use, of the
Marks which is disparaging to either Party or to any Affiliate or is likely to
cause confusion as to the source or sponsorship of any Service(s) or Product
Package(s), the source or sponsorship of any other products or services, or the
existence of any relationship, sponsorship, affiliation or association between
LecStar or any Affiliate and any third party. All Marketing Materials must be
approved in writing by both Parties prior to distribution to third parties. Both
Parties shall have the right, immediately and without notice, to suspend or
revoke the licenses granted under this Section 3.4 upon any breach of this
Agreement by the other Party. Marketer shall provide written notice, in all
Marketing Materials that "Telecommunications services are provided by LecStar."
3.5 INCONSISTENT REPRESENTATIONS. Marketer shall provide a means for
consumers to contact Marketer by telephone during Marketer's regular business
hours for purposes of inquiries related to any Service(s) or Product Package(s),
and Marketer shall respond to such inquiries in a timely and accurate manner.
Marketer shall ensure that no employee or agent of Marketer, or of any of
Marketer's affiliates or subsidiaries, with respect of any third party, (i)
makes any representation or warranty regarding LecStar, any Affiliates, or any
Service(s) or Product Package(s), whether verbal, written or otherwise, which is
false or inconsistent (a) with LecStar's or any Affiliates most current
technical documentation or Marketing Materials, or (b) with respect to Regulated
Service(s), with any tariff, price sheet or other document then in effect and of
record with any Regulatory Authority; or (ii) fails to provide information which
Marketer or Marketer's affiliates or subsidiaries reasonably know the omission
of which is likely to create an impression inconsistent (a) with
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LecStar's or any Affiliate's most current technical documentation or Marketing
Materials, or (b) with respect to Regulated Service(s), with any tariff, price
sheet or other document then in effect and of record with a Regulatory Authority
(each of (i) and (ii) above an "Inconsistent Representation"). Marketer shall
defend, indemnify and hold LecStar and all affiliates harmless from and against
any claim, judgment, loss, damage or harm (including without limitation
reasonable attorneys' fees) arising directly or indirectly from or in connection
with an Inconsistent Representation.
3.5.1 During the Term, Marketer shall not, and shall cause its
parent, subsidiaries and entities under common control with Marketer to not,
market to consumers within the Territory the products or services of any other
telecommunications carrier.
3.5.2 During the Term, Marketer shall not, and shall cause its
subsidiaries and entities under common control with Marketer to not, directly or
indirectly (i) offer, market or provide any competitive local exchange services
in the State of Georgia, or (ii) become certificated with any Regulated
Authority as a competitive local exchange carrier.
3.5.3 In the event that LecStar or an Affiliate receives an offer
or proposal from any Electric Membership Corporation (as defined in O.C.G.A.
Section 46-3-3(2) in the State of Georgia (an "EMC"), pursuant to which LecStar
or an affiliate would provide Service(s) or Product packages(s) to such EMC's
customers, then prior to accepting such offer or proposal, LecStar shall first
provide Marketer with written notice thereof and fourteen (14) days in which to
provide LecStar (or such Affiliate) with marketer's competitive proposal
incorporating terms and conditions no less favorable to LecStar than those
contained in the EMC's offer or proposal.
3.6 MARKETING EXPENDITURES, COSTS. Marketer shall be solely responsible
for all costs incurred by Marketer in its performance of its obligations under
this Agreement.
3.7 MARKETING OF COMPETING PRODUCTS. LecStar acknowledges that Marketer
provides a broad range of products and services to its Customers, and agrees
that within the CEMC Market Area, as provided in Exhibit "B", LecStar will not
directly market products and services in competition with the same or similar
products and services offered by Marketer and its Affiliates without the prior
written consent from CEMC. In the event that a third party, other than an agency
in Exhibit "A", provides services on behalf of LecStar and markets and sells
competing products in the CEMC Service area provided on Exhibit B, Marketer
shall be entitled to the commission on such sales stated for LecStar Customers
on page 2 of Exhibit "A". Marketer acknowledges that LecStar provides a broad
range of products and services to its Customers and agrees that Marketer will
not directly or through another entity market products and services in
competition with the same or similar products and services offered by LecStar
and its Affiliates without the prior written consent from LecStar.
4. PROVISION OF SERVICE(S)
4.1 OBLIGATION TO PROVIDE SERVICES. During the Term, and during the
term of any Active Customer agreement, LecStar may designate Affiliates to, and
shall cause such designated Affiliates to, provide to Active Customers those
Service(s) and Product Package(s) designated by such Active Customers (and for
which such Active Customer remains a Qualified Customer), in
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accordance with the terms and conditions of this Agreement and pursuant to such
Affiliate's then current terms and condition of service ("Service Policies");
provided, however, that Regulated Service(s) shall be provided in accordance
with any applicable, then-effective tariffs governing such Regulated Service(s)
(to the extent that such tariffs are applicable) and, in the event of a conflict
between this Agreement, any Service Policies and any such tariffs, such tariffs
shall control. Each Affiliate shall be a third party beneficiary of this
Agreement. Upon designation of an Affiliate by LecStar, LecStar hereby
guarantees and covenants that such designated Affiliate is qualified to and will
provide to Active Customers those Service(s) and Product Package(s) in
accordance with the terms and conditions of this Agreement. No designation by
LecStar of an Affiliate shall act to absolve or excuse LecStar of its duties and
covenants to provide Service(s) and Product Package(s) to Active Customers under
this Agreement.
4.2 QUALIFICATION OF CUSTOMERS BY LECSTAR.
4.2.1 Marketer shall direct consumers seeking to subscribe to any
Service(s) or Product Package(s) to contact LecStar to initiate the provisioning
of such Service(s) or Product Package(s).
4.2.2 Upon the completion of processing by Affiliates to such
Affiliates' sole satisfaction, such Qualified Customer shall be deemed an
"Active Customer"; provided, however, that such Qualified Customer will cease to
be an Active Customer, with respect to given Service(s) or Product Package(s),
upon the earliest to occur of (i) such Qualified Customer's voluntary
termination of such Service(s) or Product Package(s) or (ii) suspension or
termination of Service(s) or Product Package(s) to such Qualified Customer
pursuant to the terms of any Service Policies or any applicable, then-effective
tariffs. Upon the occurrence of (i) or (ii) above, such Qualified Customer shall
thereafter be deemed an "Inactive Customer" with respect to such Service(s) or
Product Package(s) until such time as LecStar has rescreened such Inactive
Customer in accordance with Section 4.2.1 and such Inactive Customers is
otherwise satisfactory to the Affiliate(s) providing such Service(s) or Product
Package(s) to such Affiliate(s)' sole satisfaction.
5. BILLING, PAYMENT AND REPORTING
5.1 EXCHANGE OF INFORMATION. The Parties shall within thirty (30) days
of the execution of this Agreement, implement a process which will permit the
electronic transfer between the Marketer and LecStar and Affiliates of data
pertaining to Active Customers and Inactive Customers.
5.2. BILLING AND COLLECTING. LecStar shall perform all accounting
functions pertaining to the payment for all Service(s) and Product Package(s) by
Active Customers and Inactive Customers. The terms of any applicable, then
effective tariffs regarding delinquent payments and calculation of interest and
late payment fees thereon shall apply to all Service(s) and Product Package(s)
hereunder. LecStar will calculate the customer's bills and transmit such billing
information to Marketer which will then xxxx Marketer's customers. CEMC Marketer
shall remit one hundred percent (100%) of Telecom revenues collected by Marketer
to LecStar on a weekly basis.
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5.3 PAYMENT. LecStar shall (or shall cause the appropriate Affiliate
to), no less often than once per week, remit to Marketer for each payment
received by LecStar from Active Customers or Inactive Customers during the
immediately preceding calendar week as payment for Service(s) or Product
Package(s), an amount equal to: (a) the amount of the such payment for such
commission Service or Product Package (excluding without limitation any amounts
attributable to taxes, interest or other late payment fees and after deduction
for the account transfer costs attributable to such customer and not previously
recovered), multiplied by (b) the CEMC Commissions Percentage set forth on
Exhibit "A" for such Service or Product Package ("Commission"); provided,
however, that, for purposes of calculating the Commission:
5.3.1 All amounts paid by an Active Customer or an Inactive
Customer shall first be applied to the oldest outstanding invoice of the payor;
and:
5.3.2 Subject to Section 5.3.1, all amounts paid by an Active
Customer or an Inactive Customer shall be applied on a pro-rata basis for each
Service(s) or Product Package(s) subscribed to by Customer unless otherwise
dictated by the PSC.
5.4 ADDITIONAL COMMISSIONS/MOST FAVORED NATION.
5.4.1. UTILITY ENTITIES. Notwithstanding any other provision
contained herein to the contrary, in the event LecStar engages to provide a
program or services to another utility company during the Term of this
Agreement, similar to the Service(s) and Product Package(s) provided for herein,
and Marketer, either on its own initiative or upon LecStar's reasonable request,
either (i) provides the initial contact between another entity and LecStar, or
(ii) provides an entity with an accurate appraisal of Marketer's experiences
using LecStar's program and/or services, LecStar agrees to pay Marketer, in
addition to any other amounts to be paid to Marketer hereunder, a Commission on
all sales generated by such other agency as provided on Exhibit "A".
5.4.2 FAVORABLE PRICE. LecStar agrees that if it enters into an
agreement with any other entity to provide a similar program or services as are
provided under this Agreement with prices, terms, commissions and conditions
more favorable than those contemplated herein, Marketer shall receive the same
prices, terms, commissions and conditions as the other entity.
5.5 STATEMENTS. LecStar shall provide to Marketer with the
exception of other entities' commissionable revenue, concurrently with each
remittance of Commission pursuant to Section 5.3, a statement indicating (i) the
name of each Active Customer or Inactive Customer for whom a remittance is being
made, (ii) the amount of payment remitted by each Active Customer or Inactive
Customer and the date of LecStar's (or an Affiliate's) receipt of such payment;
and payment, (iii) the commissionable revenue by product; and (iv) the
calculation of any Commissionable revenue by product.
6. SUPPORT
6.1 MARKETER CUSTOMER SUPPORT. Marketer shall provide Marketer Customer
Support with respect to the Service(s) and Product Package(s) to each Active
Customer and Inactive Customer during the Term (i) upon request by such Active
Customer or Inactive Customer, and (ii) at no additional charge to such Active
Customer or Inactive Customer.
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6.2 LECSTAR CUSTOMER SUPPORT. LecStar shall provide or cause its
Affiliates to provide LecStar Customer Support during the Term. In connection
therewith, LecStar shall cause its Affiliates, where technically feasible and
financially reasonable, to implement electronic interconnectivity with the
incumbent local exchange carrier's electronic provisioning and support systems,
if any.
6.3 TRANSFER OF SUPPORT REQUESTS. In the event that a Party receives a
request for customer support with respect to an aspect of the Service(s) or
Product Package(s) which is the responsibility of the other Party hereunder,
such Party shall, before attempting to address such request itself, direct (and,
if such request is received via telephone call, shall transfer via Warm
Transfer) the requesting party to the other Party for resolution.
7. AUDIT
Once during each calendar year for so long as Marketer is receiving
commissions hereunder, either party shall have the right, upon ten (10) days'
prior written notice to the other party, to audit the documents, books and
records of such party as they relate to calculation and payment of Revenues or
Commissions hereunder. This audit shall be done at the requesting party's
expense; provided, however, that if such audit reveals an underpayment or
overpayment exceeding ten percent (10%) of the amounts required to be paid
hereunder, then (i) the amount of the underpayment or overpayment shall accrue
interest at the Contract Rate for the date originally due until the date of
payment, and (ii) the expenses of the audit shall be borne by the other party.
8. CONFIDENTIALITY
8.1 ACKNOWLEDGMENT. Each Party acknowledges that it will, during the
Term of this Agreement, become privy to Trade Secrets, as that term is defined
in O.C.G.A. Section 10-1-761(4), and Confidential Information of the other
Party. For the purposes of this Agreement, "Confidential Information" means
information or material, whether oral or written, that is not a Trade Secret but
is nonetheless proprietary to a Party or designated as Confidential Information
by such Party and not generally known other than by personnel of such Party.
"Confidential Information" includes without limitation the following types of
information and other information of a similar nature (whether or not reduced to
writing): discoveries, ideas, concepts, techniques, models, data, diagrams, flow
charts, research, development, marketing and development plans, names of
employees and information related to them, customer names, contacts, and other
information related to customers, price lists, pricing policies, and financial
data, information and projections. "Confidential Information" also includes any
information described above which a Party obtains from a third party and which
such Party treats as proprietary or designates as "Confidential Information",
whether or not owned or developed by such Party. Information that is publicly
known and that is generally employed by the trade or generic information or
knowledge which a Party has learned in the elsewhere in the trade without
disclosure by the other Party is not intended to and shall be deemed not to be a
part of the "Confidential Information". With respect to any Confidential
Information or Trade Secrets hereunder, the Party first disclosing such
Confidential Information or Trade Secrets to the other Party shall be referred
to as the "Disclosing Party", and the other Party shall be referred to as the
"Recipient". All obligations set forth in this Section 8 shall be deemed to be
reciprocal.
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8.2 EMBODIMENTS. All notes, data, reference materials, sketches,
drawings, memoranda, documentation and records in any form or media in any way
incorporating or reflecting any Confidential Information or Trade Secret of the
Disclosing Party shall belong exclusively to the Disclosing Party and Recipient
agrees to turn over all copies of such materials in Recipient's control, custody
or possession to the Disclosing Party upon request or on the Termination Date,
whichever is earlier. Recipient agrees to certify in writing that such action
has been completed.
8.3 PROTECTION OF CONFIDENTIAL INFORMATION. Recipient agrees that
during the Term and for a period of three (3) years thereafter, Recipient shall
hold in confidence and shall not directly or indirectly reveal, report, publish,
copy, duplicate, disclose or transfer any of the Confidential Information of the
Disclosing Party to any person or entity, or utilize any of the Confidential
Information of the Disclosing Party for any purpose, except in the course of
Recipient's performance under, and in accordance with the terms of, this
Agreement.
8.4 PROTECTION OF TRADE SECRETS. Recipient agrees that during the Term
and in perpetuity thereafter, Recipient shall hold in confidence and shall not
directly or indirectly reveal, report, publish, copy, duplicate, disclose,
transfer or otherwise misappropriate any Trade Secret of the Disclosing Party to
any person or entity, or utilize such Trade Secret for any purpose, except in
the course of Recipient's performance under, and in accordance with the terms
of, this Agreement.
8.5 EXCEPTIONS. Notwithstanding Sections 8.3 or 8.4 herein, the
obligation of Recipient to protect the confidentiality of any information or
materials shall terminate as to any information or materials which: (i) are, or
become, public knowledge through no act or failure to act of Recipient; (ii) are
publicly disclosed by the proprietor thereof; (iii) are lawfully obtained
without obligations of confidentiality by Recipient from a third party after
reasonable inquiry regarding the authority of such third party to possess and
divulge the same; (iv) are independently developed by Recipient from sources or
through persons that Contractor can demonstrate had no access to Confidential
Information; or (v) are lawfully known by Recipient at the time of disclosure
other than by reason of discussions with or disclosures by the Disclosing Party.
8.6 INJUNCTIVE RELIEF. Upon the breach or threatened breach by
Recipient of any provision contained in this Section 8, Recipient acknowledges
that the Disclosing Party will be without an adequate remedy at law, and would
suffer irreparable injury, and that the Disclosing Party shall have the right
(Section 2.3 notwithstanding) to obtain immediate injunctive relief against
Recipient, in addition to all other remedies hereunder.
8.7 SURVIVAL. This Section 8 shall survive expiration or termination
of this Agreement for any reason whatsoever.
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9. WARRANTIES
9.1 MARKETER'S REPRESENTATIONS AND WARRANTIES. Marketer hereby
represents and warrants to LecStar that:
9.1.1 it is a corporation duly organized, validly existing and in
good standing under the laws of the State of Georgia, has all requisite
corporate power and authority to own its properties and assets and carry on its
business and is in good standing in each jurisdiction in which such
qualification is required;
9.1.2 it has full corporate authority to execute and deliver this
Agreement and any other agreement to be executed and delivered by Marketer in
connection herewith, and to carry out the transactions contemplated hereby and
thereby and the obligations contemplated hereunder and thereunder;
9.1.3 the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate and shareholder action, and no other corporate
proceedings by Marketer will be necessary to authorize this Agreement or the
carrying out of the transactions contemplated hereby, and this Agreement
constitutes a valid and binding Agreement of Marketer, enforceable against in
accordance with its terms; and
9.1.4 Marketer has obtained all consents or approvals of any
Regulatory Authorities required in connection with the execution and delivery of
this Agreement by Marketer and the performance of Marketer's obligations
hereunder.
9.2 LECSTAR'S REPRESENTATIONS AND WARRANTIES. LecStar hereby represents
and warrants that:
9.2.1 it is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, has all requisite
corporate power and authority to own its properties and assets and carry on its
business and is in good standing in each jurisdiction in which such
qualification is required;
9.2.2 it has full corporate authority to execute and deliver this
Agreement and any other agreement to be executed and delivered by LecStar in
connection herewith, and to carry out the transactions contemplated hereby and
the obligations contemplated hereunder;
9.2.3 the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate and shareholder action, and no other corporate
proceedings by LecStar will be necessary to authorize this Agreement or the
carrying out of the transactions contemplated hereby, and this Agreement
constitutes a valid and binding Agreement of LecStar in accordance with its
terms; and
9.2.4 LecStar has obtained all consents or approvals of any
Regulatory Authorities
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required in connection with the execution and delivery of this
Agreement by LecStar and the performance by LecStar of its
obligations hereunder.
9.3 EXCLUSION OF OTHER WARRANTIES. THE FOREGOING WARRANTIES BY LECSTAR
IN THIS SECTION 10 ARE IN LIEU OF ALL OTHER WARRANTIES BY LECSTAR, EXPRESS OR
IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9.4 RESTRICTION ON USE OF MARKETER'S CUSTOMER INFORMATION. LecStar will
not use Marketer's customer information for any purpose other than to provide
services as herein provided.
10. COMPLIANCE WITH LAWS
10.1 COVENANT. Each Party shall perform its obligations hereunder, at
all times throughout the Term, in compliance with all applicable laws or
regulations (i) imposed by any Regulatory Authority or (ii) effective in any
jurisdiction within the Territory.
10.2 INDEMNITY BY LECSTAR. LecStar shall defend, indemnify, and hold
Marketer harmless from and against any claim, judgment, loss, damage or harm
(including, without limitation, reasonable attorneys' fees arising directly or
indirectly from or in connection with a breach by LECSTAR of this Agreement.
10.3 INDEMNITY BY MARKETER. Marketer shall defend, indemnify, and hold
LecStar harmless from and against any claim, judgment, loss, damage or harm
(including, without limitation, reasonable attorneys' fees) arising directly or
indirectly from or in connection with a breach by Marketer of this Agreement.
11. GENERAL PROVISIONS
11.1 HEADINGS. Headings used in this Agreement are for reference
purposes only and shall not be deemed a part of this Agreement.
11.2 TIME OF ESSENCE. Time is of the essence of this Agreement.
11.3 SEVERABILITY. Any provision or portion of this Agreement held or
determined by a court (or other legal authority) of competent jurisdiction to be
illegal, invalid, or unenforceable in any jurisdiction shall be deemed separate,
distinct and independent, and shall be ineffective to the extent of such holding
or determination without (i) invalidating the remaining provisions of this
Agreement in that jurisdiction, or (ii) affecting the legality, validity or
enforceability of such provision in any other jurisdiction.
11.4 GOVERNING LAW. This Agreement, and the Parties' respective
performances hereunder, shall be construed and regulated in accordance with the
laws of the State of Georgia.
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11.5 NOTICES. Any notice required or permitted to be given hereunder
shall be (a) in writing, (b) effective on the first business day following the
date of receipt, and (c) delivered by one of the following means: (i) by
personal delivery; (ii) by prepaid, overnight package delivery or courier
service; or (iii) by the United States Postal Service, first class, certified
mail, return receipt requested, postage prepaid. All notices given under this
Agreement shall be addressed to the addresses stated at the outset of this
Agreement, or to new or additional addresses as the Parties may be advised in
writing.
11.6 FORCE MAJEURE. Any delay or nonperformance of any provision of
this Agreement (other than for nonpayment of amounts due hereunder) caused by
conditions beyond the reasonable control of the performing Party shall not
constitute a breach of the Agreement, and the time for performance of such
provision shall be deemed to be extended for a period equal to the duration of
the conditions preventing performance.
11.7 ASSIGNMENT. Either Party may assign this Agreement with the prior
written consent of the other Party, such consent not to be unreasonably
withheld. Either Party may delegate a part or all of its responsibilities
hereunder to any Affiliate or subcontractor, provided that such subcontractor
complies with the terms hereof and delegation to an Affiliate or subcontractor
shall not relieve the Parties of their respective duties hereunder.
11.8 PRONOUNS. Pronouns used herein shall be construed as masculine,
feminine, or neuter, and both singular and plural, as the context may require,
and the term "person" shall include an individual, corporation, association,
partnership, trust, and other organization.
11.9 AGREEMENT CONFIDENTIAL. Except as otherwise required by applicable
law (including without limitation the Georgia Open Records Act), the Parties
shall keep the content of this Agreement confidential and neither Party shall
disclose the content of this Agreement to any non-Party except upon the prior
written permission of the other Party; provided, however, that that Parties may
publicize the existence of this Agreement in Marketing Materials in accordance
with Section 3.4 herein.
11.10 PARTNERSHIP. Nothing herein contained shall be construed as
creating a partnership or joint venture by or between the Parties.
11.11 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding of the Parties with respect to the subject matter hereof, and
is intended as the Parties' final expression and complete and exclusive
statement of the terms thereof, superseding all prior or contemporaneous
agreements, representations, promises and understandings, whether written or
oral, and may be amended or modified only by instrument in writing signed by
both Parties. All exhibits referred to in this Agreement, as the same may be
amended, supplemented or replaced in accordance with this Agreement, are
incorporated herein by reference.
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11.12 BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of the Parties and their respective legatees, distributes, legal
representatives, successors and permitted assigns.
11.13 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same Agreement.
11.14 QUALIFICATION OF INDEMNITIES. Each and every provision of this
Agreement providing for indemnity and/or hold harmless provisions is hereby
qualified by inserting preceding the phrases "...agrees to indemnify..." and
"agrees to hold harmless..." or words of similar import, the phrase, "to the
extent allowed by Georgia law," so that such phrases read, "...to the extent
allowed by Georgia law, [undersigned] agrees to indemnify and hold harmless..."
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
LECSTAR TELECOM, INC. XXXX ENERGY MANAGEMENT
CORPORATION
("LecStar") ("Marketer")
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxx Xxxxxxxx
Xxxxxxx X. Xxxxx, Xxx Xxxxxxxx,
President Senior V.P., Member Relations
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