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EXHIBIT 10.31
MARKETING AGREEMENT
BY AND BETWEEN
LECSTAR COMMUNICATIONS CORPORATION
F/K/A EMPIRE TECHNOLOGY CORPORATION
AND
MARIETTA FIBERNET
DATED: JULY 1, 2000
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TABLE OF CONTENTS
EXHIBIT LIST..................................................................2
SCHEDULES.....................................................................2
1. DEFINITIONS..........................................................3
1.1 Active Customer......................................................3
1.2 Adverse Regulatory Determination.....................................3
1.3 Affiliate(s).........................................................3
1.4 Agreement............................................................3
1.5 Commission...........................................................3
1.6 Confidential Information.............................................3
1.7 Reserved.............................................................3
1.8 Deficient Quarter....................................................3
1.9 Direct Costs.........................................................4
1.10 Disclosing Party.....................................................4
1.11 LECSTAR Customer Support.............................................4
1.12 LECSTAR Objectives...................................................4
1.13 Inactive Customer....................................................4
1.14 Joint Program Launch.................................................4
1.15 ▇▇▇▇(s)..............................................................4
1.16 Marketer Customer Support............................................4
1.17 Marketer Objectives..................................................4
1.18 Marketer Revenue Percentage..........................................4
1.19 Party(ies)...........................................................4
1.20 Product Package(s)...................................................4
1.21 Qualified Customer...................................................4
1.22 Qualification Protocol...............................................5
1.23 Rate.................................................................5
1.24 Recipient............................................................5
1.25 Regulated Service(s).................................................5
1.26 Regulatory Authority.................................................5
1.27 Service(s)...........................................................5
1.28 Service Policies.....................................................5
1.29 Term.................................................................5
1.30 Termination Date.....................................................5
1.31 Territory............................................................5
1.32 Trade Secrets........................................................5
1.33 Use Policy...........................................................5
1.34 Warm Transfer........................................................6
2. DURATION.............................................................6
2.1 Initial Term.........................................................6
3. TERMINATION..........................................................6
3.1 Option to Terminate..................................................6
3.2 Notice of Breach.....................................................6
3.3 Effect of Termination................................................6
4. MARKETING............................................................7
4.1 Obligation to Market and Promote.....................................7
4.2 Marketing Performance Review.........................................7
4.3 Amendments to Exhibit "A"............................................8
4.4 Amendments to Exhibit "B"............................................8
4.5 Marketing Materials..................................................8
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4.6 Inconsistent Representations.........................................9
4.8 Marketing Expenditures, Costs........................................9
5. PROVISION OF SERVICE(S).............................................10
5.1 Obligation to Provide Services......................................10
5.2 Qualification of Customers by LECSTAR...............................10
6. BILLING, PAYMENT AND REPORTING......................................11
6.1 Exchange of Information.............................................11
6.2 Billing and Collecting..............................................11
6.3 Payment.............................................................11
6.4 Statements.........................................................11
7. SUPPORT.............................................................11
7.1 Marketer Customer Support...........................................11
7.2 LECSTAR Customer Support............................................12
7.3 Transfer of Support Requests........................................12
8. AUDIT...............................................................12
9. CONFIDENTIALITY.....................................................12
9.1 Acknowledgment......................................................12
9.2 Embodiments.........................................................13
9.3 Protection of Confidential Information..............................13
9.4 Protection of Trade Secrets.........................................13
9.5 Exceptions..........................................................13
9.6 Injunctive Relief...................................................13
9.7 Survival............................................................13
10. WARRANTIES..........................................................14
10.1 Marketer's Representations and Warranties...........................14
10.2 LECSTAR's Representations and Warranties............................14
10.3 Exclusion of Other Warranties.......................................15
11. LIMITATION OF LIABILITY.............................................15
11.1 Limitation..........................................................15
11.2 Period of limitations...............................................15
12. COMPLIANCE WITH LAWS................................................15
12.1 Covenant............................................................15
13. GENERAL PROVISIONS..................................................15
13.1 Headings............................................................15
13.2 Time of Essence.....................................................15
13.3 Severability........................................................16
13.4 Governing Law, Arbitration..........................................16
13.5 Notices.............................................................16
13.6 Force Majeure.......................................................16
13.7 Assignment..........................................................16
13.8 Pronouns............................................................16
13.9 Agreement Confidential..............................................16
13.10 Partnership.........................................................16
13.11 Entire Agreement....................................................17
13.12 Binding Agreement...................................................17
13.13 Counterparts........................................................17
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13.14 Qualification of Indemnities........................................17
EXHIBIT LIST
"A" SERVICES AND PRODUCT PACKAGES
"B" TERRITORY
"C" MARKETER OBJECTIVES
"D" LECSTAR OBJECTIVES
"E" QUALIFICATION PROTOCOL
"F" NOTIFICATION LETTER
"G" LECSTAR CUSTOMER SUPPORT
"H" MARKETER CUSTOMER SUPPORT
SCHEDULES
4.1.2 MARKETING ACTIVITIES
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MARKETING AGREEMENT
THIS MARKETING AGREEMENT made and entered into this 1st day of July,
2000 ("Date of this Agreement"), by and between LECSTAR COMMUNICATIONS
CORPORATION F/K/A EMPIRE TECHNOLOGY CORPORATION, a Delaware corporation with
principal offices at 4501 Circle ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "LECSTAR") and the Marietta Board of
Lights and Water d/b/a Marietta FiberNet, a Georgia governmental corporation
with principal offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(hereinafter referred to as "Marketer").
For and in consideration of the mutual promises and covenants
undertaken herein, 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 5.2.2.
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 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.
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 6.3.
1.6 CONFIDENTIAL INFORMATION. "Confidential Information" shall have the
meaning set forth at Section 9.1.
1.7 RESERVED.
1.8 DEFICIENT QUARTER. "Deficient Quarter" shall have the meaning set
forth at Section 4.2.
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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 9.1
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 "G".
1.12 LECSTAR OBJECTIVES. "LECSTAR Objectives" shall mean those LECSTAR
Objectives set forth at Exhibit "D" hereto, as the same may be amended,
supplemented or replaced from time to time.
1.13 INACTIVE CUSTOMER. "Inactive Customer" shall have the meaning set
forth at Section 5.2.2.
1.14 JOINT PROGRAM LAUNCH. "Joint Program Launch" shall have the
meaning set forth at Section 4.8.
1.15 ▇▇▇▇(s). "▇▇▇▇(s)" shall have the meaning set fort at Section 4.5
1.16 MARKETER CUSTOMER SUPPORT. "Marketer Customer Support" shall mean
the direct assistance provided by Marketer to Active Customers or Qualified
Customers, as described in Exhibit "H".
1.17 MARKETER OBJECTIVES. "Marketer Objectives" shall mean those
Marketer Objectives set forth at Exhibit "C" hereto, as the same may be amended,
supplemented or replaced from time to time.
1.18 MARKETER REVENUE PERCENTAGE. "Marketer Revenue Percentage" shall
mean, with respect to any Service(s) or Product Package(s), the Marketer Revenue
Percentage corresponding thereto as set forth on Exhibit "A" hereto, as the same
may be amended, supplemented or replaced from time to time.
1.19 PARTY(IES). "Party(ies)" shall mean LECSTAR and/or Marketer.
1.20 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).
1.21 QUALIFIED CUSTOMER. "Qualified Customer" shall have the meaning
set forth at Section 5.2.1.
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1.22 QUALIFICATION PROTOCOL. "Qualification Protocol" shall mean that
Qualification Protocol set forth at Exhibit "E" hereto, as the same may be
amended, supplemented or replaced from time to time.
1.23 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.
1.24 RECIPIENT. "Recipient" shall have the meaning set forth in Section
9.1.
1.25 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)
1.26 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.
1.27 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.
1.28 SERVICE POLICIES. "Service Policies" shall have the meaning set
forth at Section 5.1.
1.29 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.
1.30 TERMINATION DATE. "Termination Date" shall mean the date on which
the Term ends, regardless of the cause thereof.
1.31 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.
1.32 TRADE SECRETS. Trade Secrets" shall have the meaning set forth in
O.C.G.A. Section 10-1-761(4).
1.33 USE POLICY. "Use Policy" shall have the meaning set fort at
Section 4.5.
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1.34 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.
2. DURATION
2.1 INITIAL TERM. The initial Term shall be for a period of three (3)
years commencing upon the Date of this Agreement. Upon the expiration of the
initial Term or any renewal Term, the Term hereof shall automatically be renewed
for a period of one (1) year, unless terminated as otherwise provided herein.
3. TERMINATION
3.1 OPTION TO TERMINATE. Any other provision of this Agreement to the
contrary notwithstanding, either Party may terminate this Agreement upon twelve
(12) months' prior written notice to the other Party, given at any time after
the initial Term, with termination effective on the last day of such notice
period.
3.2 NOTICE OF BREACH. In the event a Party has committed a material
breach of this Agreement, the Party not in breach may send written notice
thereof to the breaching Party, which notice shall refer to this Section and
shall specify with particularity the nature of the material breach. The
breaching Party shall be allowed thirty (30) days from receipt of said notice to
cure the breach; and if the breach is not cured within said period, then the
Party not in breach may thereafter terminate this Agreement by sending written
notice of termination to the breaching Party with termination effective as of
the date such notice is given.
3.3 EFFECT OF TERMINATION. Upon termination of this Agreement for any
cause whatsoever:
3.3.1 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;
3.3.2 The payment obligations provided for hereunder shall accrue
through the Termination Date;
3.3.3 Sections 3, 4.7, 6, 9, 11 and 13.4 shall survive the
termination;
3.3.4 LECSTAR shall be permitted (but shall not be required to)
continue providing Services to Active Customers;
3.3.5 Marketer shall promptly transmit a Notification Letter,
substantially in the form set forth at Exhibit "F" hereto, to each Active
Customer and to each Inactive Customer, provided, however, that, in the event
that Marketer does not comply with this Section 3.3.5,
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then LECSTAR shall have the right to transmit such Notification Letter to each
Active Customer and to each Inactive Customer on Marketer's behalf, and Marketer
shall reimburse LECSTAR for, and LECSTAR shall be entitled to set off or recoup
against any amounts otherwise owed to Marketer by LECSTAR hereunder, all costs
associated therewith; and
3.3.6 Neither Party shall publish or cause to be published any
derogatory, 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).
4. MARKETING
4.1 OBLIGATION TO MARKET AND PROMOTE.
4.1.1 Subject to the terms and conditions hereof, LECSTAR hereby
designates and appoints Marketer, for the Term, as its and 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.
4.1.2 For the Term, Marketer shall exercise its best 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), strictly in accordance with and subject to the terms and
conditions of this Agreement including without limitation the marketing
activities described in Schedule 4.1.2. Marketer shall not engage in fraud,
dishonesty, gross negligence or willful misconduct in the performance of its
duties hereunder.
4.1.3 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 a breach by Marketer of Section 4.1.1 or
Section 4.1.2.
4.2 MARKETING PERFORMANCE REVIEW. Marketer shall use best efforts to
meet or exceed the Marketer Objectives set forth at Exhibit "C" hereto, as the
same may be amended, supplemented or replaced from time to time upon the mutual
agreement of the Parties. Commencing upon the last day of the first calendar
quarter after the Date of this Agreement and at the conclusion of each calendar
quarter thereafter, the Parties shall compare Marketer's performance of its
obligations hereunder with such Marketer Objectives. Upon such comparison, if
the number of Active Customers taking Service(s) from LECSTAR as of the last day
of such calendar quarter is less than eighty percent (80%) of the number of
projected Active Customers set forth in the Marketer's Objectives for that
calendar quarter, such calendar quarter shall be a "Deficient Quarter". LECSTAR
shall have the right to terminate this Agreement upon thirty (30) days' prior
written notice to Marketer upon the occurrence of three (3) or more Deficient
Quarters at any time during the Term.
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Exhibit "C" may be amended, replaced or supplemented upon the mutual written
consent of the Parties.
4.3 AMENDMENTS TO EXHIBIT "A".
4.3.1 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 therefor,
and (iii) other information therefor indicated on Exhibit "A".
4.3.2 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 thirty (30) 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). 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.
4.3.3 Rates and/or Marketer Revenue Percentages 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 and/or Marketer Revenue Percentages upon ten (10) days written notice
to Marketer in the event of (i) an increase in Direct Costs attributable to such
Service(s) or Product Package(s), or (ii) any determination by any Regulatory
Authority that affects, directly or indirectly, 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 such tariffs
shall control, and Exhibit "A" shall be deemed automatically amended to reflect
such rates. Upon any modification of any Rate or Marketer Revenue Percentage set
forth on Exhibit "A", LECSTAR shall deliver to Marketer a new Exhibit "A"
reflecting such modification.
4.4 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.
4.5 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,
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and symbols used in such Marketing Materials to denote the other Party or any
product or service of the other Party (each a "▇▇▇▇" 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. Marketer
shall use the Marks only in accordance with LECSTAR's or Affiliates' (as the
case may be) then-current use policies for the Marks ("Use Policy"), which shall
be made available to Marketer upon request; provided, however, any provision of
the Use Policy to the contrary notwithstanding, the license granted in this
Section 4.5 shall not entitle Marketer to make any use, and Marketer shall make
no use, of the Marks which is disparaging to LECSTAR 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. Marketing Materials
created by Marketer and describing LECSTAR, any Affiliates, or any Service(s) or
Product Package(s) must be approved in writing by LECSTAR prior to distribution
by Marketer to third parties. LECSTAR shall have the right, immediately and
without notice, to suspend or revoke the licenses granted under this Section 4.5
upon any breach of this Agreement by Marketer. Marketer shall provide written
notice, in all Marketing Materials or other correspondence to third parties to
whom it directs its marketing efforts, that "Telecommunications services are
provided by [AFFILIATE]."
4.6 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 to 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 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 an 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.
4.7 INTENTIONALLY OMITTED
4.8 MARKETING EXPENDITURES, COSTS. Marketer's total advertising budget
for fiscal year 2000 (starting July, 2000) is $110,000. Marketer agrees to
include LECSTAR in all appropriate advertising and promotions as the parties may
agree.
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5. PROVISION OF SERVICE(S)
5.1 OBLIGATION TO PROVIDE SERVICES. During the Term, 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 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.
5.2 QUALIFICATION OF CUSTOMERS BY LECSTAR.
5.2.1 Marketer shall direct (or shall Warm Transfer) consumers
seeking to subscribe to any Service(s) or Product Package(s) to contact LECSTAR
(through use of a toll-free telephone number provided by LECSTAR for such
purpose) to initiate the provisioning of such Service(s) or Product Package(s).
LECSTAR shall prescreen each such consumer who is Warm Transferred from Marketer
or who calls LECSTAR through the use of such toll-free telephone number against
the qualification criteria in the Qualification Protocol with respect to the
Service(s) and Product Package(s) requested by that consumer (thereupon, a
"Qualified Customer").
5.2.2 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), (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; or (iii) the Termination Date hereof. Upon the occurrence of (i), (ii)
or (iii) 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
5.2.1 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.
5.2.3 Marketer's transfer of a consumer via Warm Transfer to
Affiliates for completion of a request for Service(s) or Product Package(s)
shall constitute Marketer's representation to LECSTAR and each Affiliate that
such consumer is a Qualified Customer, and LECSTAR and each Affiliate shall be
entitled to rely on such 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 Marketer's breach of
any provision of, or representation made pursuant to, this Section 5.2.
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6. BILLING, PAYMENT AND REPORTING
6.1 EXCHANGE OF INFORMATION. The Parties shall, no later than the
commencement of Marketer's marketing activities hereunder, 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.
6.2. 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.
6.3 PAYMENT. LECSTAR shall (or shall cause the appropriate Affiliate
to), no later than the fifteenth day of each calendar month throughout the Term,
remit to Marketer for each payment received by LECSTAR from Active Customers or
Inactive Customers during the immediately preceding calendar month as payment
for Service(s) or Product Package(s), an amount equal to: (a) the amount of the
such payment for such 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 Marketer Revenue Percentage set
forth on Exhibit "A" for such Service or Product Package ("Commission");
provided, however, that, for purposes of calculating the Commission:
6.3.1 all amounts paid by an Active Customer or an Inactive
Customer shall first be applied to the oldest outstanding invoice of the payor;
and
6.3.2 subject to Section 6.3.1, all amounts paid by an Active
Customer or an Inactive Customer shall be applied to charges for Service(s) or
Product Package(s) with the lowest corresponding Marketer Revenue Percentage, in
ascending order.
6.4 STATEMENTS. LECSTAR shall provide to Marketer, concurrently with
each remittance of Commission pursuant to Section 6.3, 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 (iii) the calculation of any Commission thereon.
7. SUPPORT
7.1 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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7.2 LECSTAR CUSTOMER SUPPORT. LECSTAR shall 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.
LECSTAR's obligations under this Section 7.2 shall cease with respect to any
Service(s) or Product Package(s) as of the effective date of deletion of such
Service(s) and Product Package(s) from Exhibit "A".
7.3 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.
8. AUDIT
8.1 AUDIT. Once during each calendar year throughout the Term, Marketer
shall have the right, upon ten (10) days' prior written notice to LECSTAR, to
audit (at its expense) the documents, books and records of LECSTAR as they
relate to LECSTAR's calculation and payment of Commissions.
9. CONFIDENTIALITY
9.1 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 9 shall be deemed to be
reciprocal.
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9.2 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.
9.3 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.
9.4 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.
9.5 EXCEPTIONS.
9.5.1 Notwithstanding Sections 9.3 or 9.4 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.
9.5.2 This Section 9 shall not apply to information gained by
LECSTAR or any Affiliate hereunder regarding any Active Customer and Inactive
Customer.
9.6 INJUNCTIVE RELIEF. Upon the breach or threatened breach by
Recipient of any provision contained in this Section 9, 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 3.2 notwithstanding) to obtain immediate injunctive relief against
Recipient, in addition to all other remedies hereunder.
9.7 SURVIVAL. This Section 9 shall survive expiration or termination of
this Agreement for any reason whatsoever.
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10. WARRANTIES
10.1 MARKETER'S REPRESENTATIONS AND WARRANTIES. Marketer hereby
represents and warrants to LECSTAR and each Affiliate that:
10.1.1 it is now, and throughout the Term will be, 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;
10.1.2 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;
10.1.3 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, enforeceable against in
accordance with its terms; and
10.1.4 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.
10.2 LECSTAR'S REPRESENTATIONS AND WARRANTIES. LECSTAR hereby
represents and warrants that:
10.2.1 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;
10.2.2 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;
10.2.3 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 the Marketer in accordance with its
terms; and
10.2.4 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.
10.3 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.
10.4 RESTRICTION ON USE OF MARKETER'S CUSTOMER INFORMATION. Empire will
not use Marketer' s customer information for any purpose other than to provide
services as herein provided.
11. LIMITATION OF LIABILITY
11.1 LIMITATION. Anything in this Agreement to the contrary
notwithstanding, the liability of each Party for any losses or damage, whether
direct or indirect, arising out of this Agreement from any cause whatsoever,
including without limitation any cause of action sounding in contract, tort or
strict liability, shall be limited to actual, direct damages incurred but in no
event shall exceed Ten Thousand Dollars ($10,000). Neither Party shall be liable
for lost profits or other consequential damages, cover damages, or for any
claims against the other Party by any third party (including without limitation
any Qualified Customer, Active Customer or Inactive Customer), even if such
Party was advised of the possibility of same. Under no circumstances shall
either Party be liable hereunder for special damages, general damages,
incidental damages, indirect damages, or exemplary or punitive damages.
11.2 PERIOD OF LIMITATIONS. No action arising out of this Agreement,
regardless of form, may be brought by either Party against the other more than
one (1) year after the cause of action arose. This Section 11 shall survive the
termination of this Agreement for any reason whatsoever.
12. COMPLIANCE WITH LAWS
12.1 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.
13. GENERAL PROVISIONS
13.1 HEADINGS. Headings used in this Agreement are for reference
purposes only and shall not be deemed a part of this Agreement.
13.2 TIME OF ESSENCE. Time is of the essence of this Agreement.
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13.3 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.
13.4 GOVERNING LAW, ARBITRATION. This Agreement, and the Parties'
respective performances hereunder, shall be construed and regulated in
accordance with the laws of the State of Georgia.
13.5 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.
13.6 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.
13.7 ASSIGNMENT. Either Party may assign this Agreement with the
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
subcontractor, provided that such subcontractor complies with the terms hereof.
13.8 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.
13.9 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 4.5 herein.
13.10 PARTNERSHIP. Nothing herein contained shall be construed as
creating a partnership or joint venture by or between the Parties.
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13.11 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.
13.12 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.
13.13 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.
13.14 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..."
The parties acknowledge the Opinion of the Attorney General of Georgia
that governmental entities cannot be bound by indemnity and hold harmless
provisions as a violation of the prohibition against governmental gratuities,
however, no Court has to date adopted such a holding and there is no clear
statutory provision that indemnity and hold harmless agreements are gratuities
or that governmental entities cannot be bound by indemnity and hold harmless
provisions.
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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 COMMUNICATIONS MARIETTA BOARD OF LIGHTS
CORPORATION F/K/A EMPIRE AND WATER d/b/a Marietta FiberNet
TECHNOLOGY CORPORATION ("Marketer")
("LECSTAR")
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- ------------------------------------
Authorized Signature Authorized Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- ------------------------------------
Name Name
Chief Executive Officer Attested to: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------- -----------------------
Title ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
City Clerk
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