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EXHIBIT 10.1
AUTHORIZED SALES SUBAGENT AGREEMENT
AGREEMENT made this 1 day of April 1997 by and between X.X.
COMMUNICATIONS, INC. ("LDCI"), 0000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX
00000 a Texas Corporation and XETA Corporation ("Subagent"), An Oklahoma
Corporation, with principal offices located at 0000 X Xxxxxxx, Xxxxx 0000,
Xxxxx XX 00000.
WHEREAS, LDCI wishes to expand all commercial entities' access to MCI
Commercial Dial "1" Long Distance Service, MCI Prism Plus, MCI Prism I, MCI
Preferred, MCI Vision, MCI 800, MCI Card, MCI Corporate Account Service, MCI
Corporate Account Service Plus, MCI Hospitality Services, Dedicated Leased Line
Services and MCI Forum (the "MCI Services"), as described in MCI Tariff FCC No
1, any state tariff, and amendments thereto or successor tariffs (together, the
"Tariff"); and
WHEREAS, Subagent desires to market the MCI Services set forth herein as
an independent Authorized Sales Subagent of LDCI;
NOW, THEREFORE, the parties agree as follows:
1. Grant of Subagency. Subject to the terms of this agreement, Subagent is
hereby appointed an independent subagent authorized to solicit, on
behalf of MCI, commercial customers (as distinguished from residential
customers) for MCI Services.
2. Sales Subagency.
a) Subagent hereby accepts the appointment by LDCI as its authorized
representative to solicit orders from commercial customer for MCI
Services subject to the terms and conditions of this Agreement.
b) LDCI shall pay subagent a commission on monthly usage revenues
from orders for Services solicited by Agency and accepted by MCI,
based on the commission table below. Commission percentage is
based on total monthly revenues.
$ 0 - XX9,999 XX %
$ X00,000 - X99,999 XX %
$ X00,000 - X99,999 XX %
$ X00,000 - X99,999 XX %
$ X00,000 and above XX %
The monthly usage revenues eligible for commission hereunder include
monthly recurring usage revenue from services sold by Subagent but do
not include: 1) any MCI charges for goods or services that are not
tariffed; 2) pass through access/egress (or related) charges imposed by
third parties; 3) any non-recurring charge imposed in MCI Tariff FCC
No.1; 4) MCI Directory Assistance Services; 5) any taxes or surcharges
applicable to services; and 6) any promotional or other credits granted
by MCI.
The effective rate of commissions hereunder will be derived by applying
the applicable commission rate set forth above to eligible charges
incurred under MCI Tariff FCC No. 1 during a monthly billing period.
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c) Unless otherwise agreed in writing by LDCI, commission shall not
be payable for monthly usage derived from any person or entity
that was an MCI customer at the time of order solicitation or
within thirty (30) days prior thereto. Commission shall not be
payable on monthly usage derived from any person or entity that
is an MCI National account. Commission shall not be payable on
any usage derived from any person or entity controlled by
Subagent.
d) Subagent shall not solicit orders by means of telemarketing
without prior written consent of LDCI. If Subagent solicits by
means of telemarketing, Subagent shall coordinate with LDCI to
ensure that no PIC change order resulting from telemarketing is
submitted without confirmation by one of the means required by
FCC regulations. MCI may take steps to confirm compliance with
this provision including without limitation contacting MCI
customers solicited by Subagent.
e) Subagent may not delegate all or any portion of the Subagency
appointment under this Agreement to any third party without prior
express written consent of LDCI and under a written agreement
satisfactory to LDCI. Breach of this provision shall be deemed
an irregular marketing activity. LDCI shall not be liable to pay
commissions under this Agreement or otherwise for revenue
generated by any unauthorized subagent.
3. Relationship Of Parties.
a) Subagent will have no authority to bind LDCI or MCI by contract
or otherwise or to make representations as to the policies or
procedures of LDCI/MCI other than as specifically authorized by
the Agreement. LDCI/MCI and Subagent acknowledge and agree that
their Subagency relationship arising from this Agreement does not
constitute or create a general agency, joint venture,
partnership, employee relationship or franchise between them and
that Subagent is an independent contractor with respect to the
services provided by it under this Agreement.
b) Subagent will identify itself as an Authorized Sales Agent of MCI
only with respect to the MCI Services and will otherwise identify
itself as an independent business. Unless specifically
authorized in writing, neither LDCI/MCI nor Subagent will make
any express or implied agreement, guarantees or representations,
or incur any debt, in the name of or on behalf of the other.
c) Subagent's employees will not be deemed to be LDCI/MCI employees
or joint employees and for their supervision, daily direction and
control. LDCI/MCI will not be responsible for worker's
compensation, disability benefits, unemployment insurance,
withholding taxes, social security and other taxed and benefits
for Subagent's employees.
4. Training And Certification.
a) MCI shall provide product sales training for each of the MCI
services as provided for in this agreement. Subagent and
Subagent employees may not solicit orders for any MCI Services
until trained in product sales for that product by MCI.
5. Sales Aids.
a) Subagent shall us LDCI/MCI-approved marketing materials and order
forms only.
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b) SUBAGENT SHALL MAKE NO REPRESENTATION OR WARRANTIES RELATING TO
THE SERVICES EXCEPT AS SET FORTH IN SALES LITERATURE APPROVED IN
WRITING BY LDCI/MCI OR AS SET FORTH IN THE FORM OR FORMS OF
ORDERS PROVIDED BY SUBAGENT BY LDCI/MCI, OR AS OTHERWISE
EXPRESSLY PERMITTED BY LDCI/MCI.
6. Reporting; Payment.
a) LDCI will provide Subagent with monthly commission reporting,
which will include the usage of each customer solicited by
Subagent and for which commission is due hereunder.
b) LDCI will pay commissions monthly. LDCI will use reasonable
efforts to calculate and pay commissions within ten (10) days
following payment to LDCI by MCI, which is approximately sixty
(60) days after the close of an applicable billing month.
7. Order Acceptance.
Subagent expressly acknowledges that its appointment hereunder is as a
sales representative for MCI Services offered through LDCI, that any
solicitation by Subagent of orders from customers for the MCI services
will be subject to MCI's acceptance, in its sole discretion, of such
orders and the availability, from time to time, of the MCI Services, and
that LDCI will have no responsibility or liability whatsoever to
Subagent with respect to continued availability or operation of the MCI
Services or MCI's acceptance or, or failure to accept, orders therefore
from customers solicited by Subagent.
8. Standards Of Conduct.
In performing duties under this Agreement, Subagent will observe the
highest standard of integrity and fair dealing with members of the
public. Subagent will do nothing which would tend to discredit,
dishonor, reflect adversely upon or in any manner injure the reputation
of LDCI or MCI.
9. Tradenames And Trademarks.
a) During the term of this Agreement, unless otherwise instructed by
MCI, Subagent may refer to itself as an MCI Authorized Sales
Agent, but solely in connection with the marketing of MCI
Services to commercial customers hereunder. Subagent may use
only such other MCI trademarks, tradenames, and services marks
("Marks") as may be authorized by MCI in writing, subject to any
and all limitations contained in the grant of the right of such
use.
b) Upon termination of this Agreement, any permission or right to
Marks granted hereunder will cease to exist and Subagent will
immediately cease any use of such marks and immediately cease
referring to itself as an MCI Authorized Sales Agent
10. Non-Competition/Confidentiality.
a) During the term of this agreement and for as long as LDCI is
paying commission under this Agreement but in no event for fewer
than ninety (90) days after termination of the Agreement subagent
will not promote, sell or provide leads for the services to
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commercial customer, of any other person or entity that offers
services identical or similar to any one or more of the MCI
services.
b) Any confidential specifications, drawing, sketches, data or
technical material ("Information"), furnished or disclosed by
LDCI/MCI to Subagent hereunder, will be deemed the exclusive
property of LDCI/MCI. In addition, any customer names or lists
identifying MCI customer as such and related information or data
("Customer Information") are the exclusive property of LDCI/MCI,
and are to be used by Subagent solely in the performance of its
obligations and duties hereunder and are to be returned to
LDCI/MCI upon termination of this Agreement.
c) During the term of this Agreement and for a period of three (3)
years after termination of this Agreement, Subagent agrees not to
reveal, divulge, make known, sell, exchange, lease or in any
other way transfer any Information or Customer Information to any
third party or to utilize such Information or Customer
Information in direct or indirect competition with MCI or any of
its other Agents. Subagent agrees that monetary damages for
breach of its obligations under this section may not be adequate
and that LDCI/MCI will be entitled to injunctive relief with
respect thereto. Notwithstanding the foregoing, it is understood
and agreed that nothing herein shall prohibit the Subagent from
selling either during or after the term of this Agreement,
telecommunications systems (e.g., call accounting, voice mail,
answer detection, PBX systems and related products) to hotels and
other customers, including the MCI Services customers. Moreover,
upon termination of this agreement nothing herein shall prohibit
Subagent from selling services offered by any other carrier that
are similar or identical to the MCI services, to any MCI customer
upon the expiration of such customer's contract for the MCI
services.
d) LDCI hereby agrees to keep confidential all information
concerning Subagent's activities under this Agreement and the
amount of commissions paid to the Subagent hereunder or to the
Subagent's customers, and will not disclose any such information
to any third party (except MCI as may be necessary to enable MCI
and/or LDCI to perform under this Agreement) or any other
subagent of LDCI, except as may otherwise be required by law.
11. Term And Termination.
a) The term of this Agreement is (3) three years and will thereafter
be renewed automatically for an additional term of one (1) year
unless either party notifies the other in writing of its desire
to terminate the Agreement at least ninety (90) days prior to the
expiration of the initial term. This Agreement may be
terminated: (a) immediately upon written notice from LDCI that
LDCI's contract with MCI has been terminated; (b) for breach by
Subagent of any provision of this Agreement provided that written
notice of such breach has been given to Subagent and such breach
has not been cured within thirty (30) days after delivery of such
notice; (c) immediately upon notice by LDCI/MCI in the event
LDCI/MCI discovers any irregular marketing activity by Subagent
or irregular customer activity by customers solicited by
Subagent.
b) After normal expiration of the term LDCI shall (a) continue to
pay commission for a period of six (6) months at the commission
rate applicable under Section 2.b. hereof (direct sales
commission) for the last full month prior to expiration on
monthly usage revenues calculated in accordance with Section 2.b.
If LDCI terminated this Agreement pursuant to Section 11.a.(a)
hereof, LDCI's commission payment obligations shall survive
termination for a number of monthly equal to the number of
completed calendar
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months of the term of this Agreement prior to termination not to
exceed six (6) months. Upon termination for any other reason,
LDCI's commission payment obligations shall cease.
12. Limitation Of Liability.
a) Subagent agrees to hold LDCI free and harmless from any loss,
damage, or cost, including legal expenses and counsel fees, that
LDCI becomes liable for by reason of an act of Subagent in
marketing in the Services, including but not limited to
misrepresenting to customers the Services or the terms under
which the Services are made available by LDCI. LDCI agrees to
hold Subagent free and harmless from any loss, damage, or cost,
including legal expenses and counsel fees, that Subagent becomes
liable for to third persons by reason of any negligent or
wrongful act of LDCI in the performance of this Agreement.
b) LDCI will have no liability to Subagent for commissions that
might have been earned hereunder but for the inability or failure
of MCI to provide Services to any person solicited by Subagent or
in the event of discontinuation or modification of the Services.
c) Subagent acknowledges and agrees that LDCI directly or through
other sales agents may offer MCI Services and that Subagent will
be entitled to no compensation for sales make through such other
channels. In the event LDCI received conflicting orders for
services from different subagents or MCI employees, LDCI/MCI may
in its sole discretion determine who will receive credit for such
orders. In the event of such conflicts relating to orders for
MCI Services, LDCI/MCI may in its discretion compensate Subagent
as if the order were for a service subject to commission.
d) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR SPECIAL INDIRECT,
CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OR PUNITIVE
DAMAGES.
e) In the event LDCI is required to enforce or preserve its rights
hereunder, Subagent will pay all of LDCI's reasonable attorney's
fees and costs, including allocable costs of in-house counsel,
incurred in connection with any such successful action.
13. Notices.
Notices to be given pursuant to this Agreement will be in writing and
will be deemed to have been duly and properly given on the earlier of
(a) the date such notice has been received or (b) five (5) days after
deposit of such notice in the United States Mail, postage prepaid, to be
delivered by certified mail, return receipt requested addressed to the
Subagent at the address given above or at such address as it may
designate in writing from time to time and addressed to LDCI at:
Xx. Xxxxxxx Xxxxx, President & CEO
X.X Communications, Inc.
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
or at such address it may designate in writing from time to time.
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14. Compliance With Law.
a) Subagent will, at its own expense, operate in full compliance
with all laws, rules and regulations applicable to, and maintain
in force all licenses and permits required for, its performance
under this Agreement.
b) Subagent will notify LDCI in writing immediately of the
commencement or threatened commencement or any action, suite or
proceeding, and if the issuance or threatened issuance of any
order, writ, injunction, award of decree of any court, agency or
other governmental instrumentality, involving Subagent's
activities under this Agreement or which may affect Subagent's
ability to perform its obligations hereunder.
15. Non-Waiver.
No failure by either party to take action on account of any default by
the other will constitute a waiver of any such default or of the
performance required of the other.
16. Impossibility Of Performance.
Neither LDCI/MCI nor Subagent will be liable for loss or damage or
deemed to be in breach of this Agreement if its failure to perform its
obligations results from (a) compliance with any law, ruling, order,
regulation, requirement of federal, state or municipal government or
department or agency thereof or court of competent jurisdiction; (b)
acts of God; (c) acts of 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.
17. Binding Effect.
This Agreement will be binding upon and inure to the benefit of the
parties their successors and assigns; provided, however, that Subagent
may not assign or otherwise transfer this Agreement or any of its
interest herein without the prior and express written consent thereto by
LDCI. Neither the whole nor any part of the interest of Subagent in
this appointment will be transferred or assigned by operation of law.
18. Severability.
No provision of this Agreement which may be deemed unenforceable will in
any way invalidate any other provision of this Agreement, all of which
will remain in full force and effect.
19. Controlling Law And Entire Agreement.
This Agreement, with Attachments, will be governed by the domestic laws
of the State of Texas; constitutes the entire Agreement between
Subagent and LDCI with respect to the subject matter hereof; and
supersedes all prior Agreements and representations, written or oral,
concerning the subject matter herein. This Agreement cannot be changed
or modified except by written amendment signed by Subagent and LDCI.
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20. Heading.
This section numbers and captions appearing in this Agreement are
insured only as a matter of convenience and are in no way intended to
define, limit, construe or describe the scope or intent of such sections
of this Agreement, or in any way affect this Agreement.
IN WITNESS THEREOF, the parties have executed this Agreement this 1st
day of April, 1997.
XETA Corporation X.X. Communications, Inc.
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(Subagent)
/s/ Xxxx X. Xxxxxx /s/ Xxxx Xxxxxx
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(Authorized Signature) Xxxx Xxxxxx
President Vice President - Sales
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(Title) (Title)
4/1/97 4/1/97
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(Date) (Date)
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