EXHIBIT 10.3
10.3 DSL Partnership Program Agreement.
DSL PARTNERSHIP PROGRAM
-----------------------
AGREEMENT
---------
THIS AGREEMENT is by and between Southwestern Bell Telephone Company,
a Missouri corporation ("Company "), and Networks On-line, a Texas Corp.
----------------- ----------
("Partner"). This Agreement replaces any and all previous agreements between
Company and Partner with respect to the subject matter and term contained
herein, and any and all such agreements are hereby terminated.
WHEREAS, Company is engaged in the business of marketing and providing
telecommunications services;
WHEREAS Partner is an Internet access service provider and/or a
network integrator and desires to become a sales representative for certain of
Company's services;
WHEREAS Company wishes to engage Partner to promote the sale of such
services;
NOW THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties agree as follows:
I. EFFECTIVE DATE AND TERM OF AGREEMENT
- ------------------------------------------------
The term of this Agreement shall commence as of the date of the last
signature hereon or January 1, 1999, whichever is later, and shall continue:
(i) through December 31, 1999; or
(ii) until the effective date of any written notice of termination,
whichever is earlier. Such notice shall be effective thirty days
from the date of mailing except where the end of the year
terminates the Agreement earlier or for terminations as otherwise
provided herein.
II. SERVICES
- ----------------
1. The services subject to this Agreement ("Services") are listed in
Exhibit C, attached hereto and incorporated herein by reference.
2. Company reserves the right to modify Exhibit C, including, but not
limited to, modifying, adding to, and/or deleting Services and commissions, at
any time effective upon written notice. Company further reserves the right at
any time to seek regulatory approval to change the specifications of any
Services as shown in the tariffs, to alter or eliminate any Services or any
aspects thereof, and to change any Service rates. Tariff changes become
effective on the
2
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
environment. New commission structures, and any changes thereto, will become
part of this Agreement.
6. Partner represents that it is not an Authorized Sales
Representative of Company under Company's Sales Agency Program. If, during the
term of this Agreement, Partner or an affiliate should become an Authorized
Sales Representative or part of any other compensation! commission program
offered currently or in the future by Company, this Agreement will be terminated
immediately.
7. Each party agrees that during the term of this Agreement it will
not solicit any employee of the other party to terminate his/her employment to
become an employee of the first party. This provision does not apply to
situations in which an employee of one party initiates contact with the other
party with regard to possible employment.
8. Partner agrees if Company identifies a situation in which Partner's
activities are violating this Agreement, Company may (1) withhold payment of
commission during the investigation such violation, and (2) require Partner to
cease all activities hereunder. Failure to cease the activities hereunder as
directed by Company is cause for immediate termination of this Agreement.
Partner shall work with Company to resolve the issues causing Company to impose
such requirement(s), and shall not resume activities hereunder until such issues
are resolved.
9. Company may, as Company deems appropriate, make available to
Partner additional opportunities including, but not limited to: contests,
advertising, lists of leads for sales of Services, referrals for sales of
Services, and participation in other similar programs which Company may from
time to time deem appropriate. Such opportunities shall be offered solely at
Company's discretion and shall be defined by Company if and when offered.
10. Company shall supply Partner, from time to time, with a reasonable
number of brochures, price lists and other material necessary for promoting the
sale of Services, and with reasonable support for training Partner's personnel.
If Partner requires unusual support or excess services, a charge may be applied
for such support or services. Any portion of the foregoing material for which
Partner has been charged which remains unused at the time Company makes changes
in any Services when such changes make such material unusable, or upon the
termination of this Agreement, except where such termination results from
Partner's acts or omissions, may be promptly returned to Company for credit.
IV. Partner's Responsibilities
- -----------------------------------
Partner agrees:
1. To act as a single point of contact for the customer's Services
needs.
4
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
2. To only submit orders for Services on behalf of customers who have
requested Partner to place bondable orders on their behalf after being fully
informed of the related charges, terms, and conditions.
3. Before requesting information from Company about a customer's
account. to provide Company with a letter of authorization signed by the
customer authorizing such disclosure. Such letter of authorization will be in a
format approved by Company.
4. If Partner is ordering Digital Subscriber Line ("DSL") Service on
behalf of its subscriber(s), it must obtain a written or electronic letter of
agency ("LOA" or "Authorization Letter"), in conformance with Company's business
practices in effect at the time of such authorization, from the end user
subscriber customer; Partner shall store the Loans in a secure location and
shall immediately produce them for Company's inspection and review upon request.
If requested by Company, Partner shall also send such Loans to Company as part
of the ordering and qualification process. If Partner obtains written Loans,
Partner shall store the same in a secure place and retain them pursuant to the
provisions of Section VIII, and additionally shall provide the original to
Company immediately upon Company's request for a period of up to one year
following the termination of the customer's subscription to Partners s services.
5. Partner shall obtain written or electronic permission ("Premise
Permission"), in conformance with Company's business practices in effect at the
time of such authorization, from the end user subscriber customer for Company 's
agents or employees to enter the customer's designated premises at any
reasonable hour for the purpose of installing, inspecting, repairing, or upon
termination of the service, removing the service components of Company. Partner
shall store the Premise Permissions in a secure location and shall immediately
produce them for Company's inspection, review, and use upon request.
6. Upon notification from Company, Partner shall put in place and use
a designated electronic funds transfer and/or electronic data interchange
capability. Partner shall enter into an agreement with Company with respect to
use of such capabilities.
7. Partner is responsible for providing its personnel with sufficient
training that Company reasonably deems necessary to maintain a staff of
competent sales personnel conversant in the specifications, features and
advantages of Services. Such training will include instruction as to the proper
use of, and restrictions on. the use of information as set forth in Section VIII
herein. Partner agrees that if it schedules any training with Company and fails
to cancel such training at least three business days before the class date, or
fails to attend, Company may, at its sole discretion, charge Partner a minimum
of $150 per person per day - higher charges may apply depending on the specifics
of the training session.
8. Not to use random or sequential dialers or automatic dialing and
announcing devices ("ADADS") in placing calls to customers.
5
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
9. To sell Services to customers regardless of whether such customers
purchase CPE or other services from Partner.
10. If required by Company pursuant to Company 's internal rules and
practices, to submit to Company a Minority, Women, and Disabled Veteran Business
Enterprise subcontracting plan.
11. Upon request from Company, to provide Company with the Federal
Taxpayer Identification Number and/or, as appropriate, the Social Security
number, for Partner to be used for tax reporting purposes.
12. If Partner elects to telemarket any of the services listed in
Exhibit C, Partner must first secure written permission from Company. The
employees engaged in telemarketing must be physically located upon Partner's
business premises unless authorized in writing in advance by Company.
13. Partner shall market Services to customers strictly in accordance
with the prices, terms, and conditions set forth in applicable Company tariffs,
policies, and customer service standards for the sale of the Services hereunder.
Should the Services be offered under an eligible contract, Partner shall offer
such Services subject to the applicable terms and conditions contained in such
contract.
14. If Partner provides CPE, it must coordinate its installation of
CPE for all of Partner's Services customers with installation of any services to
be provided by Company, in a manner and within installation intervals acceptable
to Company, and in conformance with any agreements between Partner and such
customers with respect to due date. Partner will employ sufficient technical
staff to provide service and support for such CPE.
15. Partner will provide Services sales support functions including,
but not limited to: providing to customers with information regarding Services
(i.e. brochures, pricing); managing client implementation issues for Services
sold under this Agreement; and answering customer billing questions regarding
Partner's products and Services Partner has sold to customer. Partner shall
refer all other customer questions on Services, including billing questions not
associated with Services sold under this Agreement, to Company.
16. Partner will take action as needed to meet customer service
requirements and to ensure that its activities are properly coordinated to
customers' and Company's satisfaction. Partner is responsible for the prompt
reporting to Company of customer complaints. Partner agrees to escalate customer
issues following Company's escalation procedures.
17. Each party shall submit to the other for approval prior to use all
advertising material and customer collateral that refer in any way to the
other's services or products or to this Agreement. Any advertising performed by
Partner to promote the Services covered by this Agreement shall be done at
Partner's own expense, with the only exception being any authorized
6
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
cooperative advertising programs offered by Company. Any advertising copy
outside the scope of the material provided by Company to Partner (i.e. new copy
or entirely new advertisements such as Directory ads, direct mail, flyers, etc.)
must be submitted to Company for its prior review and written approval, at least
thirty days before use, or such shorter period as agreed to by Company, and
Partner shall, solely at Partner's expense and prior to use of any such
advertising material, make any and all changes. corrections or alterations to
such material that Company, in its sole discretion, deems necessary or
advisable. Advertising and promotional materials will be created and used in
accordance with all applicable laws and regulations, including those on false
advertising and unfair competition and in accordance with Section IX herein. It
is expressly understood and agreed that Company may offer or Partner may request
the right to use promotional materials developed by Company covering Services
included in this Agreement. If such promotional material is provided, at
Company's sole discretion, to Partner, Partner shall abide by any rules
regarding the use of said material as Company shall establish from time to time.
18. Partner agrees at all times to act in a professional and ethical
manner and maintain a level of quality of service to its customers satisfactory
to Company in its sole discretion in accordance with standards established by
Company and then in effect. Partner agrees that it will not use commissions
earned under this Agreement to offer customers rebates or discounts which are
contingent upon the purchase of Services, make misleading statements to
customers, give money, gifts or any other consideration to Company 's employees,
do anything that will dishonor, discredit, reflect adversely on. or injure the
reputation of Company, or create sales that do not provide value to the customer
and Company, or to manipulate the compensation system. Partner further agrees to
comply with all statutes, rules, regulations, and decisions which apply to
Company's employees marketing similar products to similar customers.
19. Partner will take and permit to be taken by Company all actions
reasonably requested in order to ensure adequate opportunity for review of
Partner's performance by Company, including, but not limited to. observation by
Company of Partner's employees in their performance of the duties and
obligations of this Agreement and periodic review and analysis by Company of the
customer service provided by Partner.
V. Orders
- -----------
1. Partner agrees to place orders only with the channel(s) designated
by Company, in a manner consistent with the then current documented standards,
order format, data requirements, method of transmission of orders. procedures
and time frames, set by Company. Partner agrees not to place orders with other
Company internal sales channels, unless otherwise authorized in writing in
advance by Company, or with other Partners. Partner will receive compensation
only on orders it places as prescribed. unless otherwise authorized in writing
in advance by Company.
2. All orders entered by Partner from customers shall be in accordance
with Section IV. Partner shall determine availability of Services on the basis
of information received from Company. All orders shall be subject to the
availability of suitable facilities, which shall be determined in the sole
discretion of Company. All orders for Services shall be further subject to
7
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
approval and acceptance by Company. In the event an order submitted by Partner
is rejected, Company will supply Partner with a specific reason for such
rejection.
3. In the event that Company has indicated that it is willing to
extend credit to a customer or customers, Partner shall obtain accurate and
appropriate credit information as specified by Company, which it shall forward
to Company with the order involving the extension of credit. All extensions of
credit must be approved by Company, and Company reserves the right to deny
credit to any customer. Company further reserves the right to require a deposit
and/or advance payment from any customer in any amount which it, in its sole
discretion, will determine in accordance with applicable tariff provisions.
Partner does not hereby guarantee the credit of any customer, but does agree
that it will use commercially reasonable efforts to obtain accurate credit
information. Partner shall inform customer that an order for service may not be
considered binding upon Company until received and approved by Company,
including receipt of any applicable deposit.
4. Each party shall maintain records of all sales made pursuant to
this Agreement. A Service Application/Authorization Letter, in a form approved
by Company, must be signed by each customer, maintained as part of Partner's
records, and made available for review upon request. All such records and all
other records pertaining to its performance under this Agreement shall be
retained by each party for a reasonable period of time, for at least four years
from the date of final payment by Company for services rendered under this
Agreement. Each party and its authorized agents and representatives shall have
access to such records of the other party for purposes of audit during normal
business hours during the term of this Agreement and for four years from the
date of final payment. A party shall notify the other party in writing at least
seven days before it intends to conduct such an audit, except that such audit
may be required on 24 hours notice to comply with regulatory requirements or in
circumstances adversely affecting customer(s) services.
VI. Commissions
- ----------------
1. Subject to the restrictions regarding sales of Services to the
entities specified in 4(c) below, and provided that Partner has fulfilled its
obligations under this Agreement, for each completed Service sale made by
Partner, Company shall pay to Partner the commission provided for in Exhibit C
for the particular Service ordered. If the customer terminates its Services
within the time period specified in Exhibit C any such commission shall be, at
Company's choice, refunded to Company within thirty days or deducted from later
commissions otherwise due Partner. Company shall pay commissions only for
qualifying orders placed by Partner during the term of this Agreement.
2. After termination of this Agreement, any debit commission balance
for Partner shall be paid by Partner to Company within thirty days written
notice of such debit commission status. Until such debit balance is paid to
Company, Partner will not be considered for participation in any Company channel
program.
8
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
3. Upon termination of this Agreement, Partner's final commission check
may, at the discretion of Company, be held by Company for up to six months from
the termination date.
4. Partner will receive no commissions for Partner's sales of Services
to:
(i) Partner or to affiliates (as defined in Section XII) of
Partner;
(ii) Any business or individual under contract with Company to
market Services;
(iii) Resellers of Services; or
(iv) Company or its affiliates.
Notwithstanding the foregoing, Partner will receive commissions for Partner's
sales of Services that are ordered by and billed to the Partner when all of the
following conditions are met:
(i) Partner is ordering and billing Service as a means to
facilitate the sale of another service which is not
telecommunications service (e.g. information access, network
management);
(ii) Partner is ordering a Service that originates or terminates
with an end user who is not affiliated with Partner; and
(iii) The Service ordered is either a private line or a virtual
private line.
The commissions on such sales shall be computed on the basis of the
circuit terminating at the end user's site.
5. No commission shall be paid to Partner for any orders for Services
sold to a customer directly by Company or sold to a customer by any entity other
than Partner. Company shall pay commissions only for qualifying order(s) placed
by Partner during the term of this Agreement.
6. Subject to Company's rights under Section II, the applicable
commission rate will be based on the commission rate in effect on the date of
service order completion in Company's billing system.
7. Partner's eligibility for a commission based on a sale of Services
accrues as of the date of service order completion or upon payment for prepaid
eligible contracts, whichever is later. Except as otherwise provided herein or
as specified in Exhibit C, amounts due hereunder shall be paid by Company to
Partner on or before the last day of the month following the month in which
Company bills the customer.
9
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
8 Company shall have the right to deduct from payments to Partner any
amounts owed to it by Partner, including, but not limited to, customer account
adjustments (including those due to incorrect or inappropriate use of
promotions), amounts due for advertising, or amounts due for failure to attend
scheduled training or other seminars or workshops. Company shall also have the
right to require Partner to pay to Company any amounts owed to Company by
Partner.
9. Partner shall have one year from the date of completion of a
service order in which to claim payment for such sale of Services, to raise any
discrepancies regarding such payments, or to otherwise raise any issues
regarding commissions on sales of Services. Such claims shall be made with
specificity in writing and shall include all supporting documentation. Company
shall have no obligation to make payments or adjustments beyond such one year
period.
VII. Exclusivity
- ----------------
1. Partner shall specify by initialing below whether it elects to
market the Services specified in Exhibit C exclusively on behalf of Company or
to also market or otherwise promote the functionally similar services of other
providers. A Partner that designates itself as "exclusive" and is subsequently
determined by Company to be "non-exclusive" shall be subject to immediate
termination and will be liable for any past commissions received over and above
those owed per the "non-exclusive" schedule in Exhibit C. Company's
determination of whether an Partner is "exclusive" shall be final. If Partner
requests to change from "exclusive" to "non-exclusive", this Agreement will be
terminated as of the effective date of such request. Partner may, if new
participants are being accepted, reapply to participate in the Partner
Partnership Program.
Partner hereby makes an election by initialing below:
( ) Exclusive - Partner elects to market or otherwise promote
exclusively the Services specified in Exhibit C and to obtain from Company and
use Company's services to meet its administrative business service requirements.
Partner will not use the services of another provider, for its administrative
business service requirements, except in those instances where Company does not
provide a functionally similar service in which case Partner may, only for so
long as Company does not have a functionally similar service, use the service of
another provider. Partner will not take any action, in return for compensation
of any type from another provider, which would result in an end user's service
being provided in any way using the services of any provider other than Company,
unless a functionally similar service is not available from Company. If approved
in writing by Company, Partner may purchase or submit orders for network
facilities from another provider to serve strictly as redundant network
facilities in case of network failure. Partner shall receive payment of
commissions on a per unit basis, as described in Exhibit C, and Partner may use
Company's logo, trademarks, and/or service marks in conjunction with Company's
Services, as provided herein.
10
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
(DB) Non-Exclusive - Partner elects not to market or otherwise promote
exclusively the services specified in Exhibit C. Partner shall receive
payment of commissions on a per unit basis, as described in Exhibit C,
and Partner may use Company's logo, trademarks, and/or service marks in
conjunction with Company's Services as provided herein.
Partner shall specify by initialing below whether it elects to market the
eligible services specified in Exhibit C on a branded or a non-branded basis as
described in Exhibit C. branded. Branded - Partner elects to market the eligible
services specified in Exhibit C on a
(DB) Branded - Partner elects to market the eligible services specified
in Exhibit C on a branded basis.
( ) Non-Branded - Partner elects to market the eligible services
specified in Exhibit C on a non-branded basis.
2. During the effective period of this Agreement, an Partner may
change, with the appropriate notice, from non-exclusive to exclusive and from
non-branded to branded. Such changes shall be prospective only.
VIII. Confidentiality
- -------------------------
1. Partner acknowledges that 1) Company is a regulated
telecommunications company with a duty not to release confidential customer
information without prior written consent, and that (2) unauthorized release of
confidential customer information may result in Company suffering significant
injury including, but not limited to, monetary damages and impairment of
Company's relationship with its regulators, customers, and potential customers.
2. All information relating to either party's customers and business,
including but not limited to the terms and conditions of this Agreement, and all
information that is marked confidential and/or proprietary or is designated as
confidential and/or proprietary when disclosed. which is disclosed by either
party to the other pursuant to this Agreement, other than such information as
may be generally available to the public or the industry, is and will be
disclosed in confidence solely for use in the conduct of business hereunder.
Nothing contained herein shall grant either party any right, title, or interest
to any information provided by the other party hereunder. Each party agrees to
keep such information secret and confidential and not to disclose it to any
other person or use it during the term of this Agreement or after its
termination except in carrying out its obligations hereunder or in response to
obligations imposed by tariff or order of a court or regulatory body.
3. Each party shall take effective precautions, contractual and
otherwise, reasonably calculated to prevent unauthorized disclosure or misuse of
such information by any of its employees or by any other person having access to
such information.
11
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
4. Within thirty days after the termination of this Agreement, by
either party and for any reason, each party shall notify the other which
specific information disclosed by it pursuant to this Agreement is to be
returned. Each party agrees promptly to return to the other any physical or
written records containing such specifically identified information then in its
possession, regardless of whether such physical or written records were prepared
by Partner or by Company. The duty to keep information confidential shall
continue notwithstanding the termination of this Agreement. Upon the termination
of this Agreement, all confidential information in tangible form provided to
Partner by Company shall be returned to Company.
IX. Trademarks and Trade Names; Invention and Patent Rigts
- ----------------------------------------------------------------------
1. Partner shall not be deemed by anything contained in this Agreement
or done pursuant to it to acquire any right, title or interest in or to the use
of the name "Bell", the Bell symbol, nor in or to any other trademark or
service-mark now or hereafter owned by Company or SBC Communications Inc.
("SBC"), or any affiliate or parent thereof (for the purposes of this section,
collectively "the Company"). Partner shall not use in its business or trade or
corporate name the name "Bell", "SBC", or the Company's names or the Bell, SBC,
or the Company's symbols, nor shall it use any trademark or service-mark owned
by the Company, or adopt or use any similar mark or symbol without the express
written consent of the Company. Any such consent given is subject to the
Company's subsequent right to review and forbid any such use from time to time.
Partner agrees that it will comply with any standards for usage of such names,
trademarks and service-marks issued or to be issued by the Company. Immediately
upon termination of this Agreement, Partner will destroy or turn over to the
Company any materials using any trademark or service-mark of the Company, unless
the Company has consented to such use pursuant to a separate agreement.
2. The Company shall not be deemed by anything contained in this
Agreement or done pursuant to it to acquire any right, title or interest in or
to the use of Partner's name, trademarks and service-marks. Subject to Partner's
right to review and forbid any such use from time to time, the Company may,
during the term of this Agreement or until the Company is notified to the
contrary by Partner, use such names, trademarks and service-marks in its
advertising. The Company agrees that it will comply with any standards for usage
of such names, trademarks and service-marks issued or to be issued by Partner.
Immediately upon termination of this Agreement, the Company will destroy or turn
over to Partner any materials using any trademark or service-mark of Partner,
unless Partner has consented to such use pursuant to a separate agreement.
3. Company may withhold payment of commissions if, and for so long as,
Partner fails to comply with this section and any standards provided to Partner
with respect to use of any names, trademarks, or service-marks.
4. Invention and Patent Rights. Neither party shall be deemed by
------------------------------
anything contained in this Agreement or done pursuant to it to acquire any
right, title or interest in or to any design, invention, improvement process or
system now or hereafter embodied in any services or products
12
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
provided by the other party, whether or not such design, invention, improvement,
process or system is patented or patentable under the laws of any country.
X. Indemnification I Liability I Insurance
- ------------------------------------------------
1. Indemnification. Each party agrees to indemnify and hold the other
---------------
party harmless from any and all claims, actions, damages, expenses and other
liabilities, including reasonable attorneys' fees and costs, resulting from the
first party's acts, omissions or misrepresentations, including but not limited
to the indemnifying party's failure to perform any of its obligations hereunder,
from any defect or failure of any kind in any product or service provided by the
indemnifying party, or from infringement by the indemnifying party of any
copyright, trademark, service mark, trade name or similar proprietary rights.
2. Exclusion of Damages. In no event shall either party be liable to
----------------------
the other for consequential, indirect, special or incidental damages resulting
from breach of this Agreement even if such party had been advised of the
possibility of such potential loss or damage.
3. Insurance. Without limiting the obligation to indemnify, each party
---------
shall maintain sufficient liability insurance, or provide a certificate of
self-insurance, to protect themselves and the other party from any and all
claims, demands, expenses, costs and other liabilities arising out of their
acts, omissions and/or misrepresentations. Partner shall provide a copy of such
insurance to Company upon request.
4. Partner will be responsible for obtaining, at its own expense, any
applicable permits, licenses, bond, or other necessary legal authorization for
work it is to perform.
XI. Termination
- ----------------
1. This Agreement may be terminated by one party immediately upon the
giving of notice of any of the following events:
(i) If the other party fails to perform or to observe, or commits
a breach of any section. provision or covenant of this Agreement, including, but
not limited to, the volume expectations set forth in Exhibit D, and the quality
targets, if any, established by Company, and fails to cure such breach or
failure to perform within thirty days, except as set forth below, or such lesser
period as Company may require because of legal, business, or regulatory
restrictions applicable to Company, following delivery to such defaulting party
of a written notice of the alleged breach. However, Company may terminate this
Agreement or withdraw any offer of an agreement immediately without providing a
period to cure such breach if the breach is a failure to meet the volume
expectations for the preceding calendar year, or is a failure to return to
Company a fully executed Agreement and any subsequent modifications thereof,
within 60 days of receipt from Company, a violation by an Partner of any legal
or regulatory restriction, policies, rules, orders, or other requirements, such
as. but not limited to, placing orders for customers who have
13
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
not requested service, misrepresentation of Company or Company's Services
(including but not limited to installation and service charges), charging
customers for or accepting fees for adjustments to which the customers are
entitled, failing to obtain and maintain the required LOAs, failing to obtain
the required Premises Permissions, failing to immediately produce the original
signed LOAs and Premises Permissions for Company's inspection, review, and use
upon request, misrepresentation of Partner's relationship with Company, actions
which dishonor, discredit, reflect adversely on or injure the repl4ation of
Company, or is a breach of Sections IV.2., IV.3, IV.4., IV.5., IV.12., IV.13.,
IV.14., LV.15., IV.17., IV.18., IV.19., VII, VIII, orIX of this Agreement; or
(ii) If the other party becomes insolvent or makes an assignment
for the benefit of its creditors, or if a committee of creditors or other
representative is appointed to represent its business, and that party fails
within thirty days following the appointment of such committee or representative
or the filing of any such involuntary petition to cause the discharge of such
committee or representative or the dismissal of such involuntary petition.
2. If the cause of a breach or failure to perform is an act of God,
fire or other casualty, strike, material shortages or other cause similar or
dissimilar to the foregoing that is beyond the control of the defaulting party,
the period for remedying such breach or failure to perform shall be extended by
the time measured by any such cause of delay and for a reasonable time
thereafter, and the defaulting party shall not be liable for damages to the
other party to the extent they result from such cause.
3. No delay by either party in sending any notice specified herein
shall constitute a waiver of its rights to terminate this Agreement.
4. Without waiving any of its rights under this Agreement, Company may
do any of the following short of termination if Partner violates any of the
terms of this Agreement: at its sole discretion, (1) withhold or cease paying
commission payments, and (2) prohibit Partner from using Company's logos,
trademarks, and service marks, and from participation in any additional
opportunities including, but not limited to, contests, advertising, lists of
leads for sales of Services, referrals for sales of Services, and participation
in other similar programs, until such time as the violation(s) of this Agreement
are cured.
5. Subject to Company's right of counterclaim or setoff, Partner shall
be entitled to commissions earned by it under Section VI based only on sales of
Services for which the Partner placed an order with Company prior to the
termination of this Agreement and which are completed in Company's billing
system within six months of termination. Any commissions owed and outstanding at
the time of termination of this Agreement shall be paid to Partner by Company
within six months following the date of termination. No commissions will be due
on any Services ordered from Company after termination.
14
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
6. The parties agree that any termination of this Agreement according
to the formalities specified herein shall not constitute an unfair or abusive
termination or create any liability not set forth in this Agreement.
7. The right of either party to terminate this Agreement is not an
exclusive remedy, and either of them shall be entitled, alternatively or
cumulatively, to remedies as determined pursuant to Section XII of this
Agreement.
8. Survivability. The terms and conditions contained in this Agreement
-------------
and its exhibits, including but not limited to those contained in Sections
IV.4., V.4VI, VIII, IX, K, XI.5, and Exhibit C, that by their sense and context
are intended to survive the performance hereof by either or both parties
hereunder shall so survive the completion of performance or termination of this
Agreement.
XII. General Provisions
- ------------------------
1. Assignment. Partner acknowledges that it has been specifically
----------
selected to participate in Company's Sales Agency Program after careful
evaluation by Company of Partner s financial stability, product line and
reputation in the business community, as well as the individual abilities and
reputation of Partner's management and sales force. Accordingly, the parties
agree that neither this Agreement, nor any right or obligation hereunder is
assignable, in whole or in part, whether by operation of law or otherwise, by
Partner without the prior written consent Company. Changes of the form in which
Partner does business (including but not limited to sole proprietorships,
partnerships, limited liability partnerships, and corporations, and changes due
to mergers or being acquired), shall be considered to be assignments which will
require the prior written consent of Company and requalification of Partner in
its new form under the then existing qualification requirements. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties hereto, their successors and assigns. If Partner assigns the Agreement
pursuant to this provision, the existing Agreement shall be terminated and a new
Agreement shall be entered into with Partner's qualified assignee.
2. Transfers. Partner customer accounts may only be transferred
---------
pursuant to a written signed agreement between existing Partners in good
standing, provided Company's prior written permission is obtained.
3. Subcontracting. Partner agrees that it will not subcontract or
--------------
attempt to subcontract any of its duties or obligations under this Agreement
without the prior written consent of Company.
4. Affiliates. For the purposes of this Agreement, an "affiliate" of
----------
any entity shall respectively mean:
- - for Company:
a) any corporation or business entity in which SBC Communications Inc. or
any subsidiary of SBC Communications Inc., any successor corporation SBC
15
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
Communications Inc. or any subsidiary of such successor, or any corporation
Of which SBC Communications Inc. becomes a wholly owned subsidiary or
any subsidiary of such corporation, has any ownership interest; and
- - for Partner:
b) any corporation or business entity in which Partner has any ownership
or potential ownership in any form or from which Partner receives or has
the option to receive any profits generated by such corporation or
business entity.
Upon request, each party shall provide the other party with a list of its
affiliates.
5. Notices and Other Communications. Every notice, consent, approval or
other communication required or contemplated by this Agreement by either party
shall be in writing and shall be delivered in person, by postage prepaid mail,
by overnight courier service, by facsimile or by electronic messaging addressed
to the party for whom intended at the address specified below or at such other
address as the intended recipient previously shall have designated by written
notice to the other party; provided, however, that any notices with respect to
Partner's status as such may not be given by electronic messaging. Where
specifically required, notices shall be by certified or registered mail. Unless
otherwise provided in this Agreement, notice by mail shall be effective on the
date it is officially recorded as delivered by return receipt or equivalent,
and, in the absence of such record of delivery, it shall be presumed to have
been delivered the fifth day, or next business day thereafter, after it was
deposited in the mails. Notice given by overnight courier service shall be
effective on the date it is recorded by such courier service as delivered.
Notice given by facsimile shall be effective on the date noted on the facsimile
log as the date sent. Notice given by electronic messaging shall be effective on
the date sent, as indicated by the electronic messaging system. Except for
notice given by electronic messaging, notice not given in writing shall be
effective only if acknowledged in writing by a duly authorized officer of the
party to whom it was given.
To: Partner: To: Company:
------- --------
Southwestern Bell
530 McCullough, Room 5G04
San Antonio, TX 78215
Attn.: Attn.: John Robers-RVP BCS
Complementary Channels
6. No Waiver of Rights. Failure of either party at any time to require
--------------------
the other party's performance of any obligation under this Agreement shall not
affect the right to require performance of that obligation or any other
obligation. Any waiver by either party of any breach of any provision hereof
shall not be construed as a waiver of any continuing or succeeding breach of
such provision, a waiver or modification of the provision itself, or a waiver or
modification of any right under this Agreement.
16
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
7. Dispute Resolution.
--------------------
(a) If a dispute arises out of or relates to this Agreement, and
if such dispute cannot be settled through negotiation, the parties agree first
to try in good faith to settle the dispute by mediation, before resorting to
arbitration, litigation, or some other dispute resolution procedure.
(b) If the parties cannot resolve the dispute by mediation, any
controversy or claim arising out of or relating to this Agreement shall be
submitted to non-binding arbitration.
(c) Nothing in the above shall prevent the parties from mutually
agreeing to use an alternative means to resolve the dispute, such as a
"mini-trial" or other procedure. However, if the parties cannot mutually agree
to such an alternative procedure, the proceeding paragraphs are binding.
(d) If either party institutes suit to enforce or interpret this
Agreement. the prevailing party in any such proceeding shall be entitled to
recover from the losing party its costs, including reasonable attorneys' fees.
8. Governing Law. This Agreement will be governed by and construed in
-------------
accordance with the Laws of Missouri, excluding its rules governing conflict of
laws. If any provision of this Agreement is not valid, it will not affect other
provisions and the parties agree that, if that invalidity reveals a situation
not provided for by this Agreement, they will jointly seek an agreement having a
valid legal and economic effect as similar as possible to the ineffective
provision and covering the scope of any missing provision in a manner reasonably
directed to the purpose of this Agreement.
9. Regulatory Changes. This Agreement shall at all times be subject to
------------------
such changes or modifications by the Public Utilities Commissions of the states
in which Services are offered or by the Federal Communications Commission as
said Commissions may from time to time direct in the exercise of their
jurisdiction. Company reserves the right to amend or terminate this Agreement to
conform it to any requirement of applicable laws or regulations or to any
requirement imposed by the a state's Public Utilities Commission or the Federal
Communications Commission in the exercise of their jurisdiction over Company, or
to any requirement of the United States Department of Justice or the state or
federal courts in connection with the Telecommunications Act of 1996. Partner
shall have the right within thirty days of receipt of notice of any amendments
made pursuant to this section to terminate this Agreement.
10. Discontinuance of Program. Company reserves the right, on three
---------------------------
months notice to Partner, to discontinue its Partner Partnership program on a
prospective basis.
11. Compliance with Laws. Each party will comply with any and all
----------------------
applicable tariffs, rules and orders of judicial and regulatory bodies, and
local, state, and federal laws, including
17
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
specifically, but not limited to, laws, rules and orders relating to monitoring
of employees' telephone conversations with customers, and shall defend,
indemnify and hold the other party harmless from and against any and all loss,
cost, damage or liability, including but not limited to reasonable attorneys
fees and costs, arising from or in connection with any failure of the first
party to so comply.
12. If any work to be performed by Partner under this Agreement is at
variance with any law, ordinance, order, regulation, or safety or health
standards, Partner shall properly notify Company before performance of the work.
13. Partner expressly agrees not to discriminate against any employee
or applicant because of race, color, religion, age, sex, national origin or
physical handicap during the performance of this Agreement and to comply with
the applicable provisions of Exhibit A (Nondiscrimination Compliance
Requirements), incorporated herein and made a part of this Agreement. As used in
Exhibit A, "Contractor" shall refer to Partner. Partner agrees to submit to
Company, on Company's request, a statement that it is in compliance with this
subsection.
14. Modification. No modification or amendment of this Agreement shall
------------
be valid or binding on the parties unless such modification or amendment is made
by Company in accordance with Sections II or XII hereof or is in writing and
duly executed by the authorized representative of each party.
15. Entire Agreement. This Agreement sets forth the entire
-----------------
understanding and supersedes prior agreements between the parties relating to
the subject matter contained herein and merges all prior discussions between
them.
18
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement.
Southwestern Bell Telephone Company Partner: Networks On-Line, Inc.
----------------------
By: By: /s/ Don Brown
------------------------------ -------------------------
Don Brown
------------------------------ -------------------------
(Print Name) (Print Name)
Title: Title: President
------------------------------ -------------------------
------------------------------ -------------------------
Date Signed: Date Signed: 5/24/99
------------------------------ -------------------------
Partner Federal Taxpayer
ID No: 76-0488521
------------------------------ -------------------------
19
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
EXHIBIT A - NONDISCRIMINATION COMPLIANCE REQUIREMENTS
Work under this contract may be subject to the provisions of certain Executive
Orders, federal laws, state laws. and associated regulations governing
performance of this contract including, but not limited to: Executive Order
11246. Executive Order 11625, Executive Order 11701, and Executive Order 12138,
Section 503 of the Rehabilitation Act of 1973 as amended and the Vietnam Era
Veteran's Readjustment Assistance Act of 1974. To the extent that such Executive
Orders, federal laws, state laws, and associated regulations apply to the work
under this contract, and only to that extent, Contractor agrees to comply with
the provisions of all such Executive Orders. federal laws, state laws, and
associated regulations, as now in force or as may be amended in the future,
including, but not limited to the following:
1. EQUAL EMPLOYMENT OPPORTUNITY DUTIES AND PROVISIONS OF GOVERNMENT
CONTRACTORS
In accordance with 41 C.F.R.60- 1.4(a), the parties incorporate herein by
this reference the regulations and contract clauses required by that section.
including but not limited to, Contractor's agreement that it will not
discriminate against any employee or applicant for employment because of race,
color, religion, sex, or national origin. The Contractor will take affirmative
action to ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion, sex, or
national origin.
2. AGREEMENT OF NON SEGREGATED FACILITIES
In accordance with 41 C.F.R.60-1.8. Contractor agrees that it does not and
will not maintain or provide for its employees any facilities segregated on the
basis of race, color, religion, sex, or national origin at any of its
establishments, and that it does not and will not permit its employees to
perform their services at any location. under its control. where such segregated
facilities are maintained. The term "facilities" as used herein means waiting
rooms. work areas, restaurants and other eating areas, time clocks, rest rooms,
wash rooms, locker rooms and other storage or dressing areas, parking lots,
drinking fountains, recreation or entertainment areas. transportation, and
housing facilities provided for employees; provided, that separate or
single-user restroom and necessary dressing or sleeping areas shall be provided
to assure privacy between the sexes.
3. AGREEMENT OF Affirmative ACTION PROGRAM
Contractor agrees that it has developed and is maintaining an Affirmative
Action Plan as required by 41
4. AGREEMENT OF FILING
Contractor agrees that it will file, per current instructions, complete and
accurate reports on Standard Form 100 (EEO-1), or such other forms as may be
required under 41 C.F.R.60-1.7(a).
5. AFFIRMATIVE ACTION FOR HANDICAPPED PERSONS AND DISABLED VETERANS,
VETERANS OF THE VIETNAM ERA.
In accordance with 41 C.F.R.60-250.20. and 41 C.F.R60-741.20. the parties
incorporate herein by this reference the regulations and contract clauses
required by those provisions to be made a part of government contracts and
subcontracts.
6. UTILIZATION OF SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS
CONCERNS
As prescribed in 48 C.F.RCh. 1. 19.708(a):
(a) It is the policy of the United states that small business concerns,
small business concerns owned and controlled by socially and economically
disadvantaged individuals and small business concerns owned and controlled by
women shall have the maximum practicable opportunity to participate in
performing contracts let by any Federal agency, including contracts and
sub-contracts for systems. assemblies, components, and related services for
major systems. It is further the policy of the United States that its prime
contractors establish procedures to ensure the timely payment amounts due
pursuant to the terms of the subcontracts with small business concerns. small
business concerns owned and controlled by socially and economically
disadvantaged individuals and small business concerns owned and controlled by
women.
(b) The Contractor hereby agrees to carry out this policy in the
awarding of subcontracts to the fullest extent consistent with efficient
contract performance. The Contractor further agrees to cooperate in any studies
or surveys as may be conducted by the United States Small Business
Administration or the awarding agency of the United States as may be necessary
to determine the extent of the Contractor's compliance with this clause.
20
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
(c) As used in this contract, the term small business concern shall mean a
small business as defined pursuant to section 3 of the Small Business Act and
relevant regulations promulgated pursuant thereto. The term small business
concern owned and controlled by social(v and economically disadvantaged
individuals shall mean a small business concern which is at least 51 percent
unconditionally owned by one or more socially and economically disadvantaged
individuals: or. in the case of any publicly owned business, at least 51 per
centum of the stock of which is unconditionally owned by one or more socially
and economically disadvantaged individuals:
and (2) whose management and daily business operations are controlled by one or
more such individuals. This term also means small business concern that is at
least 51 percent unconditionally owned by an economically disadvantaged Indian
tribe or Native Hawaiian Organization, or a publicly owned business having at
least 51 percent of its stock unconditionally owned by one of these entities
which has its management and daily business controlled by members of an
economically disadvantaged Indian tribe or Native Hawaiian Organization, and
which meets the requirements of 13 C.F.R part 124. The Contractor shall presume
that socially and economically disadvantaged individual include Black Americans,
Hispanic Americans, Native Americans, Asian-Pacific Americans. Subcontinent
Asian Americans, and other minorities, or any other individual found to be
disadvantaged by the Administration pursuant to section 8(a) of the Small
business Act. The Contractor shall presume that socially and economically
disadvantaged entities also include Indian Tribes and Native Hawaiian
Organizations.
(d) The term small business concern owned and controlled by women" shall
mean a small business concern (i) which is at least 51 percent owned by one or
more women, or. in the case of any publicly owned business, at least 51 percent
of the stock of which is owned by one or more women, and (ii) whose management
and daily business operations are controlled by one or more women: and
(e) Contractors acting in good faith may rely on written representations by
their sub-contractors regarding their status as a small business concern, a
small business concern owned and controlled by socially and economically
disadvantage individuals or a small business concern owned and controlled by
women.
7. SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS SUBCONTRACTING
PLAN. The sub-contractor will adopt a plan similar to the plan required
by 48 C.F.R. Ch. 1 at 52.2 19-9.
21
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
EXHIBIT C
PARTNER PARTNERSHIP PROGRAM
SERVICES, COMMISSIONS, TERMS AND CONDITIONS
PRODUCT EXCLUSIVE NON-EXCLUSIVE
- --------------------------------------------------------------------------------
Southwestern Bell
- -----------------
Telephone Company BRANDED NON- BRANDED NON-
- ----------------- BRANDED BRANDED
Tariff F.C.C. No.73
- -------------------
ADSL
- ----
- --------------------------------------------------------------------------------
Option I
1.544 Mbps-384 Kbps/
128 Kbps
Month-to-Month $ 40 $ 30 $ 25 $ 18
1 yr term contract $ 60 $ 40 $ 35 $ 25
3 yr contract $ 100 $ 70 $ 60 $ 45
Option II
6 Mbps-1.544Mbps/
384 Kbps
Month-to-Month $ 70 $ 50 $ 40 $ 30
1 yr term contract $ 150 $ 100 $ 90 $ 60
3yr contract $ 250 $ 175 $ 150 $ 100
1. Commissions will be paid on or before the last day of the month following
the month in which Company bills for the Service.
2. Commissions for Services which do not stay in service for six months from
the date of service order completion will be deducted from amounts owed to the
Partner, or the Partner will be required to repay the amount to Company.
3. In order to qualify for commissions at the "Branded" level, Partner must
meet all requirements as described under the "Company Branding" guidelines
described below, or sell DSL service directly to the end user customer where
Company bills such end user customer directly for the DSL service.
4. Company shall only pay commissions for DSL New orders (order type N),
Change orders resulting in incremental inward lines (order type C), and From and
To orders resulting in the move of a customer's DSL service from one location to
another (order type F and T).
23
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
Company Branding
- ------------------
Description: Partner buys DSL service from Company, at tariffed rates,
-----------
and repackages the service as part of a total Internet Package to sell to end
users. "Company Branding" refers to the identification of Company as the
provider of the DSL service associated with an Internet Package sold by an
Partner who has signed an Partner Partnership Agreement with Company and who has
selected branding participation.
Requirements: Each instance of such branding must be expressly approved
------------- in writing by Company in advance.
a) Company's brand (graphics standards to be supplied by Company) must
appear on any literature, brochures, proposals (letterhead etc.), packaging or
other collateral used to sell an Partner's internet package sold under the terms
of this Agreement.
b) Company's brand (oral and graphics standards to be supplied by
Company) must appear in any advertising in which DSL is being sold under the
terms of this Agreement. This includes any type of printed advertising or
promotion, or verbal mention in any radio or television advertising.
c) Company's brand (graphics standards to be supplied by Company) must
appear on the Partner's Web site if the Partner provides public access to such
site. Partners who have designated themselves as "exclusive" under the terms of
this Agreement may not advertise or otherwise promote any other provider of DSL
service on their Web or other Internet site).
24
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
EXHIBIT B
MARKET AREA
The geographic market area(s), in which Partner is authorized to market, promote
the sale of, and be the procuring cause of orders for Services, is defined as
follows:
The State(s) of TX
----
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
DSL Partnership Agreement
EXHIBIT D
PARTNER PARTNERSHIP PROGRAM
VOLUME EXPECTATIONS
PRODUCT VOLUME
- --------------------------------------------------------------------------------
DSL-Southwestern Bell Telephone Company Tariff F.C.C. No. 73
Option 1:1.544 Mbps-384 Kbps/128 Kbps **
Option II: 6 Mbps-1.544 Mbps/384 Kbps **
** Total minimum volume expectation is 1000 per year or per month
------- -----
- --------------------------------------------------------------------------------
Note that in connection with these volume expectations, this Agreement permits
Company to terminate this Agreement under certain conditions.
PROPRIETARY AND CONFIDENTIAL INFORMATION
Not for use or disclosure outside Company and Partner
except under written agreement approved in writing by Company.
FIRST AMENDMENT TO
------------------
DSL PARTNERSHIP PROGRAM AGREEMENT
---------------------------------
THIS FIRST AMENDMENT TO DSL PROGRAM AGREEMENT ("this Amendment")
is entered into as of this 1st day of February, 2000 by and between Southwestern
-----
Bell Telephone Company (hereinafter referred to as the "Company") a Missouri
corporation, and Networks On-Line, a Texas Corp. ("DSL Partner" or "Partner").
------------------ ------------
This Amendment revises and replaces the specified terms pf the DSL Partnership
Program Agreement entered into between the parties on or about 5/24/99 ("the
----------
Original Agreement") only to the extent recited herein. All other terms
Conditions of the Original Agreement remain in full force and effect.
WHEREAS, the Company and DSL Partner entered into the Original
Agreement which, by its terms, expired on January 1, 2000;
WHEREAS, the Company and DSL Partner desire to continue the
relationship created by the Original Agreement for an additional year under
the same terms and conditions;
NOW THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the parties hereby amend the Original Agreement
as follows:
1. Section I of the Original Agreement is hereby amended and restated
in its Entirety as follows:
I. EFFECTIVE DATE AND TERM OF AGREEMENT
The term of this Agreement shall commence as of 1st Feruary, 2000
------------------
and shall continue:
(a) through January 1,2001; or
(b) until either party provides written notice of termination, whichever is
earlier.
Such notice shall be effective thirty days from the date of mailing except where
the end of the term terminates the Agreement earlier, for terminations under
Section XI below, or as otherwise provided herein.
2. All remaining terms and conditions set forth in the Original Agreement
remain in full force and effect as written.
[N WITNESS WHEREOF, the undersigned have executed this First Amendment to DSL
Partnership Program Agreement as of the date hereinabove first written.
SOUTHWESTERN BELL TELEPHONE CO. NETWORKS ON-LINE, INC.
------------------------------------
By: By: Don Brown, President
- --------------------------------- ------------------------------------
(print name and title) (print name and title)
Date: Date: 1/1/2000
- --------------------------------- ------------------------------------
(DSL PARTNER)
AGREEMENT BETWEEN SOUTHWESTERN BELL AND NETWORKS ON-LINE, INC. REGARDING THE
---------------------
SOUTHWESTERN BELL DSL WEBSITE AND INTERNET SERVICE PROVIDER
LISTINGS FOR DSL ACCESS
This Agreement ("Agreement") sets forth the terms and conditions under which
South eastern Bell, a Missouri corporation for its and its affiliates
(hereinafter "Company") will be permitted by N.O.L. INC., a TEXAS CORP.
----------- ------------
("Applicant"), an Internet Service Provider (collectively the "Parties") to post
its name and HTML link ("hyperlink") on Company web pages pertaining to
Company's Digital Subscriber Line related services ("DSL related services").
Whereas; Company offers DSL related services from designated central offices to
customers with qualified local loops and provides a Company Website with DSL
related services information and ordering forms for use by Customers ("Company
Website"); and
Whereas, Applicant has purchased Asynchronous Transfer Mode ("ATM") services
from Company, and represents that it is ready and able to provide Internet
Services and that it desires to be listed as a DSL-enabled Internet Service
Provider on Company Website;
The parties agree as follows:
1. Purpose. The purpose of this Agreement is to establish the guidelines
-------
whereby Company is permitted to post Applicant's hyperlink on Company's Website
such that Company's established End User Customers ("Customers") who initiate a
request from Company's Website to Company to check whether Customer's telephone
line(s) prequalify for DSL related services, may link to Applicant's Website to
review Applicant's Internet access charges and other pricing information, and,
if appropriate, may initiate a request to Company to designate Applicant as
Customer's intended Internet Services Provider.
2. Term. This Agreement shall become effective the 1st day of July,
---- ------ -----
1999, and shall remain in effect thereafter until terminated as provided
herein ("Term"). day of
3. Applicant here authorizes Company to use Applicant's name and
---------
hyperlink to Applicant's designated Website on the Company Website.
4. Applicant's Representations and Responsibilities.
----------------------------------------------------
a) Intellectual Property Rights. Applicant represents that it is
-------------------------------
responsible for any intellectual property rights, including but not limited to
service names, service marks, trademarks and trade names ("Marks") of
Applicant's company or respective companies, and has all the necessary rights,
titles, permissions and privileges to use any information appearing on, or
disclosed to third parties by virtue of any hyperlink access to Applicant's
Website.
b) Website Product Information. Applicant represents and agrees that it is
-------
responsible for the content and accuracy of Applicant's name and product
information appearing on Applicant's Website accessed by Applicant's hyperlink.
Applicant agrees that it will provide a hyperlink which will connect to
Applicant's pricing information on Applicant's Website.
c) Indemnification. Applicant agrees to indemnify and defend Company,
---------------
its affiliates, and the officers, directors, employees and agents of any of them
("Indemnities"), from and against any loss, cost, damage, claims, expense,
fines, penalties, or liability, including costs of defense and attorneys' fees,
arising from Applicant's failure to adhere to any of terms and conditions of
this Agreement or Applicant's failure to comply with any applicable law, rule or
regulation, including, but not limited to, any injury to any person or damage to
any property, except to the extent that such loss, cost, damage, claim, expense
or liability arises from the active negligence or willful misconduct of Company
or its employees. Applicant will also keep Company informed as to the progress
of such defense and afford Company an opportunity to participate on an equal
basis in the defense or settlement of such claim.
1
5. Company's Representations and Responsibilities.
--------------------------------------------------
a) Intellectual Property Rights. Company represents that Southwestern
------------------------------
Bell Internet is an affiliate of Southwestern Bell, that Southwestern Bell is
the trademark and service mark of Southwestern Bell, that FasTrak is the service
mark of SBC Communications, Inc. Company represents that it is not responsible
for the content or accuracy of Applicant's name or logo, or any information
available via Applicant's hyperlink.
b) DSL Prequalification Phase. After Customer has designated Applicant
---------------------------
as the Customer's intended Internet Service Provider, Company will notify
Applicant that it has been selected as the ISP.
c) Company reserves the right in its sole discretion to modify or
discontinue the use of the Website and/or ordering mechanism as it deems
appropriate, provided however, that Company shall provide the Applicant
reasonable prior written notice of any plan to discontinue the Website and/or
ordering mechanism or of any significant system modification.
d) COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FiTNESS FOR
INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO THE WEBSITE SERVICES PROVIDED
HEREIN AND SHALL NOT BE RESPONSIBLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO SAID WEBSITE.
6. Termination.
------------
a) Either party may terminate this Agreement for convenience upon 15
days prior written notice to the other Party. The right of either party to
terminate this Agreement is not an exclusive remedy, and either party shall be
entitled to other remedies as provided by law or in equity.
b) Company may terminate this Agreement immediately, without liability,
upon the delivery of written notice to Applicant if in Company's reasonable
opinion the Agreement or any actions or omissions by Applicant violates any laws
or regulations, subjects Company or others to any disparagement, provides
customers with false or misleading information, would subject Company to incur
additional expenses or forego opportunities if it were to comply with those laws
and regulations, or which causes or may cause Company to be subject to any
review, inquiry or proceeding regarding its regulatory or legal requirements or
obligations.
7. Miscellaneous.
-------------
a) Assignment. The parties agree that neither this Agreement, nor any
----------
right or obligation hereunder, is assignable by Applicant, in whole or in part,
whether by operation of law or otherwise, by Applicant without the prior written
consent of Company.
b) No Proprietary Rights Conferred. Nothing contained in the Agreement
--------------------------------
shall be construed as conferring to either party by implication, estoppel, or
otherwise, any license, right or title, under any patent, Mark or other
proprietary right of Company or Applicant. In providing hyperlinks to
Applicant's Website, Company shall be authorized to use the logos, hyperlinks,
Marks and domain names of Applicant as specified in accordance with the terms
specified in this Agreement.
c) Compliance with Laws and Choice of Law. Each party will comply with
---------------------------------------
any and all applicable tariffs, rules and orders of judicial and regulatory
bodies, and local, state, and federal laws. This Agreement will be governed by
the laws of the State of Missouri, excluding its choice of law provisions.
d) Modification. No modification or amendment of this Agreement shall
------------
be valid or binding on the parties unless such modification or amendment is made
in writing and duly executed by the authorized representative of each party.
e) Entire Agreement. This Agreement sets forth the entire understanding
----------------
between the parties relating to the subject matter contained herein.
IN WITNESS WHEREOF, the duly authorized persons below have executed this
Agreement as of the date first above written on behalf of the parties.
Southwestern Bell Applicant: NETWORKS ON-LINE, INC.
----------------------------
By: Amy E. Cook By: Don Brown
- ------------------------------- ---------------------------------------
Amy E. Cook
- ------------------------------- ---------------------------------------
(Print Name) (Print Name)
Title: Area Manager Sales Agency Title: DB
- ------------------------------- ---------------------------------------
Southwestern Bell
- ------------------------------- ---------------------------------------
Date Signed: 7/7/99 Date Signed: 7/1/99
- ------------------------------- ---------------------------------------
URL
WWW.NOL.NET/DSL.HTML
SURCHARGE EXEMPTION CERTIFICATE
COMPANY NAME: Networks On Line
CONTACT NAME: Keith Crabtree TELEPHONE NUMBER: 713-554-7100
The circuit listed below is exempt from the ICC special access Surcharge because
the facility termination is on the following:
-- (A) An open-end termination in a Telephone Company switch of an Fl
line, including CC8A and CCSA-equivalent ONAL's or
-- (B) An analog channel termination that Is used for full-time radio
or television program transmission; or
-- (C) A termination used for TELEX service; or
-- (D) A termination that by the nature of its operating
characteristics could not make use of Telephone Company
common lines; or
-- (E) A termination that interconnects either directly or Indirectly
to the local exchange network whore the usage is subject to
Common Carrier Line charges such as, where the special
access facility accesses only
-FGA and no local exchange lines, or
-special access facility between customer points of
termination, or
-special access facility connecting CCSA or CCSA-type
equipment (Intermachine trunks), or
X (F) A termination that the customer certifies to the Telephone
--- Company is not connected to a PBX or other device capable
of Interconnecting the special access facility to a local
exchange subscriber line, or the PBX or other device has been
rendered incapable of Interconnection by software or hardware
changes.
BILLING NAME: Networks On Line
CIRCUIT ADDRESS: 10497 Town & Country Way Suite 460
EFFECTIVE DATE:
I Thereby certify that this circuit is exempt from the Special Access Surcharge
for the reason indicated above. I recognize that It is the responsibility of
this company to notify Southwestern Bell Telephone Company in writing of a
ingest that affect this status.
AUTHORIZED REPRESENTATIVE: DB (Don Brown)
----------------------------------------------------
TITLE: President Date: 7/13/99
------------------------------------------------ ---------------------
(TO BE FILLED BY SWBT)
SWBT CONTACT: Lauren D Blumenfeld
TITLE: Senior Account Manager
713-567-4184
[DSL ON BOARD LOGO]
[SOUTHWESTERN BELL LOGO]
ISP Co-op Advertising Plan
WHAT IS THE ISP CO-OP ADVERTISING PLAN?
One of the many benefits of partnering with Southwestern Bell for DSL! The ISP
Co-op
Ad Plan gives you the opportunity to further market DSL to your customers.
WHO IS ELIGIBLE?
All ISPs who have partnered with Southwestern Bell by signing the DSL
Partnership Program Agreement or the Authorized Sales Representative (ASR)
Agreement and are connected to the Southwestern Bell ATM network.
HOW DO WE GET STARTED?
ISPs will be awarded $2500 once the following criteria have been met:
------
(a) ISP Partnership/ASR contract is signed.
(b) The ATM connection is completed.
(c) ISP's advertising has been submitted for review by Southwestern Bell.
(Advertising can be emailed to ac7705@sbc.com or faxed to 913-676-0940)
--------------
HOW DO WE EARN CO-OP AD MONEY?
ANNUALIZED DSL REVENUE CO-OP AD MONEY AWARDED
- -------------------------------- -------------------------------------
$25,000 - $124,999 0.4% of revenue
$125,000 - $249,999 0.8% of revenue
$250,000 + 1.2% of revenue
Notes:
(1) ISP will be awarded co-op ad money on a quarterly basis.
(2) Maximum amount to be awarded annually per ISP is $25,000.
WHAT ADVERTISING CRITERIA MUST BE FOLLOWED?
The guidelines outlined in Section IV ("Partner's/ASR's Responsibilities) of the
DSL Partnership Program Agreement/Authorized Sales Representative Agreement must
be followed.
The criteria outlined in the Branding Guidelines, Exhibit C of the DSL
Partnership
Program Agreement, must be met by all ISP Partners that have elected to market
the
DSL services under the branded option.
If you have any questions about the ISP Co-op Ad Program, please contact Amy
Cook at ac7705@sbc.com or 913-676-1572.
--------------