ATC is in the business of providing voice communication service in the United States.
ATC desires to expand its commercial customer base to include a greater number of active commercial customers in the United States and ATC desires to use The Company services on a nonexclusive basis to promote and market the Service to prospective commercial customers within the United States, and ATC has agreed to compensate The Company for such service, all as set forth in this Agreement. ATC will award cash or an account credit to any Eligible Referrer who refers an Eligible New Customer. Rewards will be calculated at 100% of the first bill of each accounts activated by the Eligible New Customer at thirty (30) days of service.
NOW, THEREFORE, intending to be legally bound, ATC and The Company agree as follows:
1. Subject to the terms and conditions of this Agreement, ATC hereby appoints The Company, and The Company hereby accepts such appointment, as a non-exclusive independent representative for the promotion and marketing of the Service to potential commercial customers located within the United States ("Targets"). Subject to the terms and conditions of this Agreement, ATC authorizes The Company, to (a) market and promote Service to potential customers and (b) refer such Customers to ATC.
2. The Company shall not make use of ATC's trademarks, service marks, logos or designations, other than the information included within ATC's marketing and promotional materials provided to The Company, without ATC's prior written consent.
3. Term. This Agreement will commence on the Effective Date and continue for a period of one (1) year (the "Term"), unless earlier terminated in accordance with Section 8. This Agreement shall continue thereafter on a month-to month basis unless terminated upon written notice by one of the parties giving at least thirty (30) days' prior written notice to the other party.
4. Referral Process. The Company will introduce ATC sales personnel to Targets and facilitate meetings between ATC sales personnel and Targets. For each Target that The Company is referring to ATC, The Company will submit an electronic Target lead form online as directed by ATC via an online point of interaction between ATC and The Company (the "Portal"). Target referrals that are not submitted via the Portal will not be valid. In addition, Target leads that are submitted by The Company via the Portal may not be considered valid, registered leads unless and until such referral registrations are approved in writing (which may include electronic notification) by an ATC Sales Manager or Director. If a ATC Sales Manager or Director electronically approves a Target lead that has been submitted by The Company via the Portal, and such Target is not an Excluded Target (as defined in Section 1, above), then such Target will be considered an "Approved Lead" and the date the applicable Target lead form was submitted to the Website will be considered the "Lead Effective Date." Approved Leads are valid for 180 days from the Lead Effective Date, meaning that if an Approved Lead has not executed an agreement for Service with ATC no Referral Fee will be owed with respect to the Target, and The Company must submit a new lead form for the applicable Target via the Portal if The Company would like to be eligible to earn a Referral Fee with respect to that Target. Nothing in this agreement will obligate ATC to accept any introduction to a Target, and ATC will retain sole and absolute discretion to determine whether to negotiate with or enter into a transaction for Service with any Target.
5. If any Approved Lead introduced to ATC by The Company executes an agreement for service with ATC within one hundred eighty (180) days of the applicable Lead Effective Date, ATC will pay to The Company a one-time referral fee for the applicable Service ordered by such Approved Lead. The parties agree that the Referral Fee will be a payment solely with respect to a particular Approved Lead, and that such payment will be the sole, exclusive, and final compensation due from ATC to The Company with respect to The Company's referral of each such Approved Lead. The Referral Fees will be due and payable by ATC to The Company sixty (60) days after ATC has installed the applicable Service ordered by the Approved Lead. In no event will ATC pay any Referral Fee to The Company hereunder with respect to any Target lead that (i) did not become an Approved Lead pursuant to Section 4 above prior to such Target lead's placement of an order for Service with ATC; or (ii) constitutes an Excluded Target or other ATC-rejected Target. For the avoidance of doubt, this Agreement is intended only for the referral of new customers referred by The Company and ATC has no obligation to pay a Referral Fee based on any renewal or upgrade of an existing agreement between ATC and an existing ATC customer. Notwithstanding anything to the contrary herein, in the event that more than one person or entity, including, but not limited to, The Company and ATC, is involved in the referral of an Approved Lead that results in an agreement for Service between such Target and ATC, ATC will generally pay the entire Referral Fee to the person or entity through the closed sale of an Approved Lead. In certain circumstances, however, ATC may elect in its discretion to apportion the Referral Fee hereunder between such entities.
6. No Agency. The Company is engaged by ATC solely as an independent contractor and not as an agent, employee, joint venture, or partner, and has no authority to bind ATC to any third party, by contract or otherwise. The Company will not have, and will not represent that it has, any authority to assume or create any obligation, express or implied, to enter into any agreements regarding service, or to make any warranties or representations on behalf of ATC or in ATC's name. The Company shall not represent itself as an ATC-sponsored agent, re-seller, or alternate channel sales partner. The Company represents that, as of the Effective Date, it is not an existing ATC agent, channel sales partner, ATC employee, or family member of an ATC employee.
7. Without limiting the foregoing and notwithstanding any other provision of this Agreement, and
except to the extent necessary to perform The Company's obligations under this Agreement, The Company will not access, gather and/or retain any data that relates to ATC's customers ("Customer Information") and will not take any action, or allow any third party to take any action, that would enable a third party to access, gather, or retain any such Customer Information for any purpose. The Company will provide ATC with immediate written notice upon The Company's discovery or receipt of notification of any actual potential, or threatened unauthorized access to, use, and/or disclosure of any Customer Information in the possession or control of The Company or any of its representatives or otherwise occurring through the provision of services provided by The Company hereunder (each a "Security Breach") and, except as otherwise directed by ATC, immediately and at its own expense investigate and take all steps to identify, prevent, and mitigate the effects of any Security Breach. The Company will promptly provide to ATC a detailed description of any such Security Breach, any affected Customer Information, the identity of affected ATC customers, and any other information as ATC may request concerning the Security Breach, and conduct any recovery necessary and requested by ATC to remediate the impact of such Security Breach.
8. Termination. This Agreement may be terminated at any time by ATC with or without cause upon thirty (30) days written notice to The Company. Upon termination or expiration of this Agreement, The Company will promptly return all materials containing ATC's Confidential Information. The Company acknowledges that (a) The Company has no expectation and has received no assurances that any investment by The Company in its performance of this Agreement will be recovered or recouped or that The Company will obtain any anticipated amount of profits by virtue of this Agreement, and (b) The Company will not have or acquire by virtue of this Agreement or otherwise any vested proprietary or other right in the promotion of the Service or in any "goodwill" created by its efforts hereunder.
9. Subject to the terms of Section 5 of the Agreement and the following paragraph, the Referral Fee will equal 100% of the Monthly Recurring Charge (MRC) (excluding taxes & surcharges), as defined and charged to the Approved Lead under the applicable Service agreement entered into between ATC and such Approved Lead. Notwithstanding the foregoing, in no event shall ATC pay a Referral Fee for any particular Service agreement in excess of $5000 unless such amount has been expressly approved in writing by the ATC Vice President of Sales.