XO Referral Agreement

This Referral Agreement ("Agreement") contains the complete terms and conditions that apply to your/your company's participation in the XO COMMUNICATIONS SERVICES, INC. ("XO") Affiliate, Agent and Referral Program ("Referral"). As used in this Agreement, "Referrer" refers to the Affiliate or Agent Program applicant.

1. REFERRED ACCOUNT GENERATION AND REFERRER CONDUCT.

a. Subject to the terms of this Agreement, XO will compensate Referrer for sales of XO Web Site Hosting Services ("Services" or "XO Web Site Hosting Services") to accounts referred by Referrer and to referred Accounts ("Referred Accounts")created by Referrer on behalf of XO that match the terms of this Agreement.

b. All Referred Accounts shall be submitted by Referrer by utilizing the XO Referrer registration system or by contacting telesales with Referrer's id. Should Referrer sign up a Referred Account in the XO Referrer registration system Referrer warrants that Referrer is authorized to do that on behalf of account owner.

c. XO will pay Referrer commission for sales of XO Services to Referred Accounts in accordance with the terms set forth on the Commission Schedule ("Commission"). Referrer may only submit Referred Accounts for XO Web Site Hosting Services and not for any other services provided by XO Communications, Inc or any Third Parties. Referrer shall only receive Commission for sales of the XO Web Site Hosting Service Plans specified on the Commission Schedule and not for any other service.

d. Referrer understands and agrees that it shall not be both a Referrer and a sales agent or Referred Account agent for XO, and that in no event shall Referrer be eligible to receive commission or other compensation from XO under both this Agreement and any other agreement with XO or pursuant to any other XO sales agent, Referred Account or referral program. In addition, in no event shall Referrer be permitted to receive commission or compensation more than one time for the same Referred Account nor shall two parties be paid commission for the same Referred Account.

e. Referrer will generate sales of Services to Referred Accounts in a manner that will reflect favorably on the good name and reputation of XO and XO Services and, specifically, Referrer agrees to:

(i) comply with all applicable national, international, state and local laws, ordinances and regulations in its dealings with XO and Referred Accounts;

(ii) observe the highest standards of integrity and fair dealing with the public; and

(iii) make no false or misleading statements with respect to XO Services, and engage in no illegal, deceptive, misleading, unethical, or improper acts or practices in performing its duties under this Agreement.

f. Referrer shall not refer or enroll any Referred Account in XO Services without the Referred Account's explicit authorization and shall comply with all state and federal laws, rules and regulations applicable to the enrollment of Referred Accounts in telecommunications services. Breach of this Section 1.f. shall be grounds for immediate termination of this Agreement pursuant to Section 6.a. and Referrer shall have liability to XO for such breach as set forth in Section 7.

g. Referrer must notify Referred Account of all of the terms and conditions associated with XO Services, but specifically, must inform Referred Account of its mandatory compliance with XO's Acceptable Use Policy. XO's Acceptable User Policy can be found at http://www.xo.com/legal/statement.html.

h. In no event shall Referrer share commission with any XO sales representative and/or any other Referrer.

2. RELATIONSHIP OF PARTIES.

a. Neither XO nor Referrer shall have the authority to bind the other by contract or otherwise or to make representations as to the policies or procedures of the other except as specifically authorized by this Agreement. XO and Referrer acknowledge and agree that their relationship arising from this Agreement does not constitute or create a general agency, joint venture, partnership, employee relationship or franchise between them and that Referrer is an independent contractor with respect to the services provided by it under this Agreement. Referrer shall conduct its business at its own initiative, responsibility and expense. All persons furnished by Referrer to perform the obligations required or permitted under this Agreement shall be considered solely Referrer's employees. Referrer shall at all times remain responsible for compliance with all terms, conditions and obligations of this Agreement. Subcontracting by Referrer, in any form, of any of Referrer's obligations, in whole or in part, without XO prior approval shall be prohibited.

b. Referrer's employees will not be or be deemed to be XO employees or joint employees. Referrer assumes full responsibility for the acts of its employees and for their supervision, daily direction and control. XO will not be responsible for worker's compensation, disability benefits, unemployment insurance, withholding taxes, social security and any other taxes or benefits for Referrer's employees.

3. REFERRED ACCOUNT SUBMISSION, ACCEPTANCE AND PRICING.

a. Referrer expressly acknowledges that any submission of Referred Account for XO Services will be subject to XO's acceptance of such Referred Accounts in XO's sole discretion. Referrer must accurately provide all information needed for the establishment of Referred Account's XO Service. Furthermore, XO will have no responsibility or liability whatsoever to Referrer with respect to the continued availability or operation of XO Services or XO's acceptance of, failure to accept, or follow up of Referred Accounts submitted by Referrer.

b. Referrer expressly acknowledges that every Referred Account must comply with the terms and conditions associated with the purchase and use of XO Services, including but not limited to contractual terms and conditions and XO's Acceptable Use Policy, and that the failure of an Referred Account to adhere to any such terms and conditions could Referred Account to discontinuance of Service to the Referred Account by XO.

c. Referrer acknowledges and agrees that XO directly or indirectly (or through other sales Referrers) may offer XO Services and that Referrer will be entitled to no compensation for sales made through such other channels. In the event XO receives conflicting orders or referrals for Services from different Referrers or XO employees, XO may in its sole discretion determine who will receive credit for such orders.

d. All rates and charges for XO Services shall be determined in XO's sole discretion and may change from time to time without notice to Referrer.

4. TRADENAMES AND TRADEMARKS.

During the term of this Agreement, Referrer may refer to itself as a "Member of the XO Web Developer Network" solely in connection with its provision of Referred Accounts. Referrer may use only such other XO trademarks, tradenames, and service marks ("Marks") as may be authorized by XO in writing. Upon termination of this Agreement, any permission or right to use the Marks will cease to exist, and Referrer will immediately cease any use of the Marks and immediately cease referring to itself as a "Member of the XO Web Developer Network." NEITHER REFERRER NOR ITS EMPLOYEES SHALL MAKE ANY REPRESENTATIONS OR WARRANTIES RELATING TO XO SERVICES.

5. CONFIDENTIALITY AND COMMUNICATIONS.

a. Any confidential specifications, drawings, sketches, data or technical or business information, and any other confidential material ("Information"), furnished or disclosed by XO to Referrer under this Agreement, will be deemed the exclusive property of XO. In addition, any customer names or lists identifying XO Referred Accounts as such and related information or data ("Referred Account Information") are the exclusive property of XO, and are to be used by Referrer solely in the performance of its obligations and duties hereunder and are to be returned to XO upon termination of this Agreement.

b. During the term of this Agreement and for a period of eighteen (18) months thereafter, Referrer agrees not to reveal, divulge, make known, sell, exchange, lease or in any other way transfer any Information or Referred Account Information to any third party or to utilize such Information or Referred Account Information in direct or indirect competition with XO or any of its other Referrers. Referrer agrees that monetary damages for breach of its obligations under this Section may not be adequate and that XO will be entitled to injunctive relief with respect to any breach or default of Referrer's obligations under this Section.

c. Referrer shall not reveal the existence of this Agreement or the parties' relationship in any advertisement, promotional activity or publicity release without XO's prior written consent. Any breach of this prohibition shall be a material breach of this Agreement and XO may then terminate this Agreement upon written notice to Referrer.

6. TERM AND TERMINATION.

a. This Agreement shall commence upon XO's acceptance of Referrer's program application and shall continue for a period of one (1) year thereafter, unless otherwise terminated as set forth below. This Agreement shall automatically renew for additional one (1) year periods unless one party advises the other of its intent to terminate at least thirty (30) days prior to the anniversary date of the Effective Date of this Agreement. This Agreement may be terminated: (a) at any time without cause by either party on thirty (30) days prior written notice to the other party; (b) for breach by Referrer of any provision of this Agreement, provided that written notice of such breach has been given to Referrer and, if such breach is curable, has not been cured within ten (10) days after delivery of such notice (if such breach is not curable, XO may terminate this Agreement immediately upon written notice); or (c) immediately upon written notice by XO in the event Referrer, in XO's sole discretion, breaches its obligation

b. Referrer shall not be compensated for renewals of an Referred Account service agreement, unless specifically stated in the Commission section herein. Referrer shall not be entitled to any Commission after termination of this Agreement if this Agreement is terminated by XO due to Referrer's breach.

7. INDEMNITY AND LIMITATION OF LIABILITY.

a. Referrer agrees to indemnify, defend and hold XO free and harmless from any loss, damage, or cost, including attorney's fees, that XO becomes liable for by reason of any act of Referrer in marketing or soliciting XO Services to Referred Accounts, including but not limited to misrepresenting to Referred Accounts the XO Services or the terms under which the Services are made available by XO. Specifically, Referrer shall indemnify, defend and hold XO free and harmless from any loss, damage, cost, fine, fee or penalty, including attorney's fees, incurred by XO as a result of Referrer's breach of Section 1.f. of this Agreement. Referrer shall immediately notify XO in writing of any claim, threatened claim, suit or other action related to Referrer's performance under this Agreement.

b. XO will have no liability to Referrer for Commissions that might have been earned hereunder but for the inability or failure of XO to provide service to any person solicited by Referrer or for whom a Referred Account was submitted by Referrer, or in the event of XO's discontinuation or modification of XO Services.

c. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OR PUNITIVE DAMAGES.

8. NOTICES.

XO shall post any updates to the XO Web Site Hosting Terms of Service on the XO Gateway for viewing by Referrer. It shall be Referrer's sole obligation to visit the XO Gateway periodically and XO shall not have any obligation to otherwise communicate updates to Referrer in any other manner. Any notices to be given XO pursuant to this Agreement will be in writing and will be deemed to have been duly and properly given on date such notice has been received. Notices to XO shall be sent to the following:

Director, Marketing Programs
XO Communications
11111 Sunset Hills Road
Reston, VA 20190
Fax: 703.547.2800

With a copy to:

Vice President, Market Legal Operations
XO Communications
11111 Sunset Hills Road
Reston, VA 20190
Fax: 703.547.2800

9. IMPOSSIBILITY OF PERFORMANCE.

Neither XO nor Referrer will be liable for loss or damage or deemed to be in breach of this Agreement if its failure to perform its obligations results from (i) compliance with any law, ruling, order, regulation, requirement of any federal, state or municipal government or department or agency thereof or court of competent jurisdiction; (ii) acts of God; (iii) acts or omissions of the other party; (iv) fires, strikes, war, acts of terrorism, insurrection or riot; (v) or any other cause beyond its reasonable control. Any delay resulting therefrom will extend performance accordingly or excuse performance, in whole or in part, as may be reasonable.

10. ASSIGNMENT.

Referrer may not assign or otherwise transfer this Agreement without the prior and express written consent by XO. Neither the whole nor any part of the interest of Referrer in this Agreement may be transferred or assigned by operation of law.

11. CONTROLLING LAW, JURISDICTION, ENTIRE AGREEMENT, NON-WAIVER AND SEVERABILITY.

(i) This Agreement, with Attachments, will be governed by the domestic laws of the Commonwealth of Virginia and Referrer consents to the jurisdiction of the federal and state courts of the State of Virginia. (ii) This Agreement constitutes the entire agreement between Referrer and XO with respect to the subject matter hereof, and supersedes all prior agreements and representations, written or oral, concerning the subject matter of this Agreement. (iii) This Agreement cannot be amended or modified except by written amendment signed by authorized representatives of Referrer and XO. (iv) No provision of this Agreement which may be deemed unenforceable will in any way invalidate any other provisions of this Agreement, all of which will remain in full force and effect. (v) No failure by either party to take action on account of any default by the other will constitute a waiver of any such default or of the performance required of the other.

12. DISPUTE RESOLUTION.

Except for action (i) seeking a temporary restraining order or injunction, (ii) suit to compel compliance with this dispute resolution process, (iii) disputes relating to the lawfulness of rates, terms, conditions or practices concerning Services that are subject to the Communications Act of 1934, as amended, or the rules and regulations of the FCC, a state public utility commission or other administrative agency, (iv) Customer non-compliance with publicity provisions, or (v) billing or payment disputes or collections matters, which may be litigated at the election of XO, the Parties agree to use the dispute resolution procedures set forth in this Section with respect to any controversy or claim arising out of or relating to this Agreement or its breach. Either Party may submit the dispute to binding arbitration with a professional arbitration service selected by the Parties. If the Parties do not otherwise agree on an arbitration service, such services, shall be provided pursuant to the J.A.M.S./ENDISPUTE A.

SCHEDULE A: COMMISSION SCHEDULE

1. For purposes of Commissioning, Referrers are considered to be either affiliates ("Affiliate") or Commissioned Agents ("Commissioned Agent"). Referrer must choose between either Affiliate or Commission Agent Commissioning and can not participate in both referrer programs at one time.

a. Affiliate Referrers shall receive a one-time $70.00 Commission for each Referred Account that is enrolled in an XO Web Site Hosting Service Eligible Plan specified below, is accepted by XO and subscribes to XO Web Site Hosting as a Referred Account. Such Commission shall be paid to Referrer only after the Referred Account has paid two (2) XO invoices in full. No Commission will be paid an Affiliate Referrer for a Referred Account until such Referred Account pays two (2) XO invoices in full.

b. Commissioned Agent Referrers shall receive an ongoing Commission, calculated monthly and paid monthly for each Referred Account that is enrolled in an XO Web Site Hosting Service Plan specified below in Eligible Plans. Ongoing Commissions are generated according to the Commission Agent Referrer Commission schedule below. No check will be issued in any month if the Commission Paid does not equal at least $50. In the event that the Commission Paid does not reach $50 for a given month, the Commission Paid will be rolled over to the next month. Commissioned Agent Referrers will only receive Commission in a given month if they have referred a new account through the program in the previous 1 year period. i) For purposes of calculating Commission Paid Percentage (%) XO will include all accounts referred by Commission Agent Referrer and all add-ons. However, for actual payout amount calculation only Eligible Plans and their add-on amounts shall be included and Commission Agent Excluded Features are not included. ii) The following Service features are not included in any Compensation calculation for Commission Agents and shall be excluded from any payments, including without limitation, domain name registration, premium support, all professional services, Market Builder service, and all services delivered by other XO entities or third parties.

iii) When determining Monthly Collected Revenue any prepaid monthly service fees shall be recognized for commissioning in the month that service is delivered. For Example a 6 month prepay of $60 shall be recognized for Commissioning as 6 x 1 month payments of $10.

By way of example only-Company referrers 20 accounts in a month, out of those 20:
  • 5 are e-mail plans (not an Eligible plan) at $10/monthly
  • 15 are Eligible Plans at $15/month
  • 15 domains were purchased for 1 year at $20/each (not an Eligible service)
  • 3 Eligible Plans added $20 in storage and $10 in Junk Mail Filters each

    For purposes of calculating what Commission Paid Percentage the Company will receive the calculation is as follows:
  • e-mail plans $50
  • Eligible Plans $225
  • domains $300
  • Storage $60
  • Junk Mail Filters $30
    Total $665

    Therefore, the Commission Paid Percentage is 35%. The actual Commission amount for the month will be 35% of the Eligible Plan Monthly Collected Revenue minus Excluded Plans and Services amount; thus, 35% of $315 [Eligible Plans ($225)+Storage ($60)+Junk Mail Filters ($30)] or $110.25.

    Commission Agent Referrer Schedule
    Monthly Collected Revenue | Commission Paid Percentage
    $0 - $99.99 | 10%
    $100 - $299.99 | 25%
    $300 - $599.99 | 30%
    >$600 | 35%

    2. The XO Web Site Hosting Service Eligible Plans for Commission are as follows:

    X-1, X-2, X-3, X-5 (when available), W-1, W-2 and W-3 and where available Basic, Professional, Enterprise, Enterprise Plus, WinBasic, WinProfessional and WinEnterprise.

    3. Fraud: If a Referrer signs up an account that XO considers in its sole discretion to be fraudulent it will not be included in any Referrer Commission.