exv10w3





CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
UNDER A CONFIDENTIAL TREATMENT REQUEST, PURSUANT TO RULE 406 OF
THE SECURITIES ACT OF 1933, AS AMENDED, AND RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. THE REDACTED TERMS HAVE
BEEN MARKED IN THIS EXHIBIT AT THE APPROPRIATE PLACE WITH THREE
ASTERISKS [***].



Exhibit 10.3




REDACTED
COPY OF

MASTER PROFESSIONAL SERVICES AGREEMENT



This MASTER PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is entered into this 30th day of
March 2009 (the “Effective Date”) by and between XO Communications Services, Inc. on behalf of
itself, its operating affiliates and subsidiaries, with a principal place of business at 13865
Sunrise Valley Drive, Herndon, VA 20171 (“XO”) and THOMAS CADY, with his principal residence at
5308 Wriley Road, Bethesda, MD 20816 (“Consultant”). The parties may individually be referred to
herein as a “Party” and collectively as the “Parties.”





     WHEREAS, Consultant has particular expertise in the area of telecommunications sales and
marketing;



     WHEREAS, XO desires to engage Consultant to provide business consulting services to the
Company or one or more of its subsidiaries, to specifically include, but not limited to providing
to XO an accelerated growth plan for XO’s Interactive Voice Recognition services (“IVR”) and to
provide certain deliverables as may be specified hereunder and requested by XO from time to time;
and



     WHEREAS, Consultant desires to be so engaged by XO.



     NOW, THEREFORE, in consideration of the foregoing, of the mutual promises herein contained,
and of other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending legally to be bound, hereby agree as follows:



ARTICLE 1. — DEFINITIONS.



Capitalized terms and phrases used in this Agreement will have the meanings set forth in Exhibit 1
hereto or as otherwise defined throughout the terms herein. Terms that are not so defined will be
deemed defined in the context in which they are used.




ARTICLE 2. SERVICES.



A. Description of Services. Consultant will function as an independent Consultant. In that
capacity, and as directed by XO, Consultant will research XO’s current IVR capabilities, customers,
and IVR expansion and growth opportunities for XO’s IVR business. Consultant will provide to XO on
or before June 30, 2009 a report outlining a three year $[***] growth plan for XO Interactive to
increase IVR Sales Revenue from current IVR Sales Revenue to $[***] IVR Sales Revenue (the
“Business Plan”). Specifically, Consultant’s Business Plan will include:





	 	a.	 	An evaluation of XO’s IVR market position.
	 
	 	b.	 	An evaluation of XO’s current IVR platform capabilities.
	 
	 	c.	 	An evaluation of current IVR market opportunities.
	 
	 	d.	 	An evaluation of the current IVR competitive landscape.
	 
	 	e.	 	An evaluation and business plan for XO to expand its IVR market to include, but not limited to:






	 	(i)	 	Operational plan including:






	 	a.	 	Technology requirements
	 
	 	b.	 	Product development
	 
	 	c.	 	Distribution strategies
	 
	 	d.	 	Market coverage plans
	 
	 	e.	 	Partnership development
	 
	 	f.	 	Target customers
	 
	 	g.	 	Value proposition






	 	(ii)	 	Required investments




In order to ensure that all expectations of the Services, priorities and outcomes are being met, it
is expected that Consultant will schedule regular meetings with appropriate XO management and
executives to review the progress of this project, any issues, etc; and that Consultant will issue
regular reports on progress and outcomes as directed by XO. All decisions made in connection with
advice and recommendations made as a result of the Services will be the responsibility of, and made
by XO. If XO accepts the Business Plan, Consultant will, through June 2010, meet and consult with
and advise and provide oversight for XO as needed or as reasonably requested by XO on how best to
implement and execute the Business Plan.



B. Additional Services. Additional professional services that may be required from Vendor which
differ from those described above, (e.g., consulting, analysis, development, etc) will be set forth
in a mutually agreed upon SOW. Any future SOW(s) will contain a conspicuous reference identifying
it as an SOW under this Agreement, and will include the following information: (i) a statement of
project requirements; (ii) a description of the Services; (iii) specifications covering any
Deliverable(s) and the design, testing, and final acceptance thereof; (iv) required progress
meetings and personnel; (v) compensation structure, including maximum authorized total expenditure
(if applicable); (vi) any assumption(s) on which performance of Services or delivery of
Deliverables is conditioned; and (vii) any special warranty provisions.



C. Consultant Responsibilities. This Agreement is personal and Consultant may not provide or
perform any of the Services through Affiliates, subcontractors or agents of any kind without XO’s
express written consent. In providing the Services, neither Consultant nor its employees,
suppliers, subcontractors, agents or other licensees will restrict or interfere with any XO system
or the maintenance or use thereof. Consultant will adhere to all reasonable security measures
implemented by XO. Consultant will advise XO immediately of any actual or potential conflict of
interest involving Consultant’s anticipated or actual provision of services to other







Page 1 of 8









 







clients, employers or other third parties and Services provided by Consultant to XO (“Conflict of
Interest”).




ARTICLE 3. FEES AND PAYMENT TERMS.



A. Fees and Expenses. XO will pay the Consultant $15,000 on or about May 15, 2009, and another
$15,000 on or about June 15, 2009. XO will evaluate the Business Plan within 30 Days of its
submission to XO. If the Business Plan is accepted by XO, XO may undertake execution of the
Business Plan with the assistance of Consultant as described in Article 2 A. above. Further, if
and only if the Business Plan is accepted by XO and XO undertakes the execution of the Business
Plan, XO will pay the Consultant within ten days after the end of each of the following four
quarters (July 2009 through June 2010) $7,500 as payment for consulting and oversight services.
Within thirty (30) days after June 30, 2010, XO will evaluate the effectiveness of the Business
Plan. At that time, if XO determines that it has achieved at least ninety five percent (95%) of the
IVR Sales Revenue Target, XO will pay Consultant a Plan Execution Bonus as follows within thirty
(30) days of such determination:




	 	 	 	 	 
	PERCENT	 	 
	ACHIEVEMENT OF	 	PLAN EXECUTION
	IVR SALES REVENUE	 	BONUS PAYABLE TO
	TARGET:	 	CONSULTANT:
	At least 95% but less than 96%
	 	$	95,000	 
	96% or more but less than 97%
	 	$	96,000	 
	97% or more but less than 98%
	 	$	97,000	 
	98% or more but less than 99%
	 	$	98,000	 
	99% or more but less than 100%
	 	$	99,000	 
	100% or more but less than 101%
	 	$	100,000	 
	101% or more but less than 102%
	 	$	101,000	 
	102% or more but less than 103%
	 	$	102,000	 
	103% or more but less than 104%
	 	$	103,000	 
	104% or more but less than 105%
	 	$	104,000	 
	105% or more
	 	$	105,000	 





No Plan Execution Bonus will be paid to the Consultant if the IVR Sales Revenue Target is below
ninety five percent (95%).



All reasonable out-of-pocket expenses of Consultant that are approved in writing in advance by XO
will be reimbursed by XO, including reasonable and customary business expenses. Consultant will
comply with then-current XO travel and expense policy.



B. Payment. Except as otherwise provided for herein, Consultant will render invoices for Services,
goods or other billable items to XO on a weekly basis. Payment on undisputed charges will be due
and payable no later than forty-five (45) Days after the date of the invoice.



C. Taxes. All charges will be calculated exclusive of any applicable federal, state or local use,
excise, value-added, gross receipts, sales and privilege taxes, duties, universal service
assessments or similar liabilities associated with the Services, whether charged to XO, its
suppliers or Affiliates, Consultant or End User. XO is not responsible for or obligated to pay
taxes based on Consultant’s income or payroll taxes, any state business franchise or occupation
taxes, or any goods or services not covered by this Agreement.




ARTICLE 4. TERM & TERMINATION.



A. Term. This Agreement will commence on the Effective Date and will continue for a Term of
eighteen months from the Effective Date, and may be extended by written authorization of XO unless
otherwise earlier terminated in accordance with this Agreement.



B. Event of Default Termination. Except as provided in Section 4(B), if either Party commits an
Event of Default, the other Party may, by giving written notice to the defaulting Party,
immediately terminate the applicable SOW or the entire Agreement at the election of the terminating
party. The foregoing notwithstanding, the non-defaulting party may pursue any legal remedies it may
have under applicable law or principles of equity relating to such breach and subject to the terms
of this Section.



C. Termination for Convenience. XO may terminate this Agreement or any SOW (i) immediately upon
written notice to Consultant in the event that XO determines that Consultant has a Conflict of
Interest, and (ii) upon ten (10) Days advance written notice to Consultant for any reason or no
reason. Consultant may terminate this Agreement for any reason or no reason upon thirty (30) Days
advance written notice to XO.



D. Effect of Termination. Termination refers to the cessation of the Parties’ respective
commitments and obligations under an SOW or this Agreement from and after the date of termination,
but does not relieve the Parties of their payment and other obligations. If termination occurs,
except for termination for nonpayment of fees by XO, Consultant agrees to: (1) provide reasonable
transition assistance to XO; (2) inform XO of the extent to which performance has been completed
through the date of termination or expiration; (3) wind up its work in a commercially reasonable
manner; (4) preserve items of value created prior to termination; (5) deliver to XO all work in
progress that XO has paid for at that time; and (6) invoice XO all amounts properly due and owing
since the date of last invoice. Additionally, as requested by XO at any time after a notice of
termination or non-renewal of this Agreement, Consultant will cooperate with XO to







Page 2 of 8









 







develop an appropriate plan, and to provide professional services for a reasonably period of time
to transition any Services to XO or a replacement provider. Upon termination of this Agreement, XO
shall be required to pay to the Consultant fees owed on a prorate basis and, except as otherwise
provided herein, XO shall have no further obligations pursuant to this Agreement. If this
Agreement is terminated before the Consultant submits the Business Plan to XO, the Consultant will
not be required to submit the Business Plan to XO and XO will XO will not be required to pay the
Consultant any part of the $120,000 Plan Execution Bonus.




ARTICLE 5. REPRESENTATIONS & DISCLAIMERS.



A. Consultant Representations. Consultant represents and warrants, as of the Effective Date and
throughout the term of this Agreement, that Consultant : (1) is appropriately qualified, skilled
and trained to provide the Services and will operate the Services in a professional and workmanlike
manner, in accordance with then-current, accepted industry standards, and in compliance with all
laws, regulations, rules, orders and decrees applicable to Consultant; (2) will comply with all
applicable federal, state and local laws, rules and regulations in the provision of Services and
creation of any Deliverable; and (3) will own or otherwise have the right to provide the Services
and Deliverables contemplated hereunder and will not infringe, misappropriate or violate the
Intellectual Property rights, confidentiality or established privacy rights of any Person in the
provision thereof.



B. Disclaimers. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, ALL SERVICES AND
DELIVERABLES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND NEITHER PARTY NOR ITS AFFILIATES,
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ASSIGNS MAKE ANY WARRANTIES OR REPRESENTATIONS TO THE
OTHER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION,
WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT
RELATING TO ANYTHING PROVIDED HEREUNDER, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES AND
REPRESENTATIONS ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.




ARTICLE 6. INTELLECTUAL PROPERTY.



XO owns and shall retain all right, title and interest in and to its Intellectual Property. XO
hereby grants to Consultant the limited right to use XO Materials only in connection with
Consultant’s performance of Services; otherwise, no licenses will be deemed to have been granted by
XO to any of its Intellectual Property rights. Consultant will not reverse engineer or otherwise
attempt to derive any formula, business plans or source code from any XO Materials. XO will own,
solely and exclusively, all rights in any Deliverables or other newly-developed materials or work
product created pursuant to this Agreement, which will also constitute a “work made for
hire,” as such term is defined in 17 U.S.C. §101. If all or any part of that work product does
not constitute work made for hire, Consultant will assign all those rights to XO without further
consideration and will secure any necessary consents or waivers from any individual creator(s).
All Deliverables rendered hereunder will be deemed Confidential Information of XO.




ARTICLE 7. CONFIDENTIALITY.



A. Nondisclosure Agreement. The Parties may disclose valuable Confidential Information to the
other in the course of obtaining and/or providing Services under this Agreement. The use and
disclosure of all such Confidential Information will be subject to the General Nondisclosure
Agreement by and between the Parties executed with this Agreement and that the Term thereof will
run concurrently with the Term of this Agreement.



B. Publicity. Neither Party will identify, either expressly or by implication, the other Party or
its Affiliates or use any of their trade names, trademarks, service marks, or other proprietary
marks in any advertising, sales presentation, news releases, advertising, or other promotional or
marketing materials without such other Party’s prior written consent, which will not be
unreasonably withheld.




ARTICLE 8. INDEMNIFICATION.



A. Consultant Obligations. Consultant will defend, indemnify and hold harmless XO, its Affiliates,
officers, directors, employees, and shareholders from and against any Claims arising out of,
relating to, incurred in connection with, or based upon: (1) any breach by Consultant of its
obligations, warranties and representations set forth in this Agreement or any SOW hereunder; (2)
any actual or alleged non-compliance with Law by Consultant; (3) any breach of the provisions
respecting Confidentiality; and (3) any infringement, misappropriation or violation of any
Intellectual Property right asserted by any third party relating to a Service or Deliverable,
including the provision or use thereof by Consultant, except to the limited extent such a Claim is
based on XO-provided specifications where such specifications form the basis for the Claim unless
Consultant could have chosen a non-infringing alternative while complying with such XO’s
specifications.



B. Procedure. If a third party makes a Claim against a Party which is subject to indemnification
hereunder, the Party in receipt of such Claim (“Indemnified Party”) will promptly notify the other
Party (“Indemnifying Party”) in writing no later than sixty (60) Days after receipt of such
notification of a potential claim. The Indemnifying Party may assume sole control of the defense of
such claim and all related settlement negotiations. The Indemnified Party will







Page 3 of 8









 







provide the assistance, information and authority necessary to assist the Indemnifying Party in its
obligations under this Section. Neither Party may settle any such matter without the consent of
the other as to any settlement that imposes an obligation on,, or requires any admission by, the
Indemnified Party. Failure of the Indemnified Party to promptly notify the other will not relieve
the Indemnifying Party of its obligations hereunder except to the limited extent such delay
prejudices the Indemnifying Party.



C. Option. In addition to the foregoing indemnification obligations, if all or any part of a
Service or a Deliverable is, or in the reasonable opinion of Consultant may become, the subject of
a claim of infringement, misappropriation or violation of a third party’s United States
Intellectual Property rights, XO may elect that Consultant, at its expense, either: (1) procure for
XO the right to continue receiving and using the Services or Deliverable; or (2) replace or modify
the allegedly infringing aspect of the Services or Deliverable to make it non-infringing, without
altering its functionality. If neither option is reasonably available, XO may terminate this
Agreement [or the affected SOW] and receive a refund of fees paid for the affected Service or
Deliverable.




ARTICLE 9. LIABILITY AND LIMITATIONS OF LIABILITY



A. Mutual Liability. Subject to the specific provisions of this Article, it is the intent of the
Parties that each will be liable to the other only for any direct damages incurred by the
non-breaching Party as a result of the breaching Party’s failure to perform its obligations in the
manner required by the Agreement.



B. Limitations UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER PARTY, ITS AFFILIATES,
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ASSIGNS WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,
PUNITIVE, SPECIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES, INCLUDING, BY WAY OF EXAMPLE AND NOT
LIMITATION, LOSS OF BUSINESS, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE, WHETHER BY STATUTE,
IN TORT, OR IN CONTRACT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR
BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, THAT EXPRESS
REMEDY OR MEASURE OF DAMAGES WILL BE THE EXCLUSIVE REMEDY OF THE PARTIES AND THE SOLE LIABILITY OF
EACH. OTHERWISE, EACH PARTY’S LIABILITY HEREUNDER WILL BE LIMITED TO THE LESSER OF (1) ACTUAL
DIRECT DAMAGES, OR (2) AMOUNTS ACTUALLY PAID TO CONSULTANT BY XO IN CONNECTION WITH THE CONTESTED
SERVICE OVER THE PRECEEDING TWELVE (12) MONTHS FROM THE TIME THE EVENT RESULTING IN LIABILITY
OCCURS. THE FORGOING LIMITATIONS DO NOT APPLY TO THIRD PARTY CLAIMS SUBJECT TO CLAIMS FOR (i)
INDEMNIFICATION, (ii) CONSULTANT’S NON-COMPLIANCE WITH LAW OR ITS OBLIGATIONS RESPECTING
CONFIDENTIAL INFORMATION.



C. Force Majeure. Neither Party will be liable for any loss or damage resulting from any cause
beyond its reasonable control (a “Force Majeure Event”) including an “act of God”, insurrection or
civil disorder, war or military operations, national or local emergency, acts or omissions of
government or other competent authority, compliance with any statutory obligation or executive
order not otherwise applicable to the Parties in the ordinary course of business, fire, lightning,
explosion, flood, subsidence, weather of exceptional severity, or any similar act or omission
beyond the reasonable control of any Party. Upon the occurrence of a Force Majeure Event and to the
extent such occurrence interferes with a Party’s performance of this Agreement, each Party will be
excused from performance of its obligations during the period of such interference, provided that
such Party uses all reasonable commercial efforts to avoid or remove such causes of nonperformance.




ARTICLE 10




GENERAL



A. Assignment. Consultant may not assign or otherwise transfer all or any portion of its rights or
obligations under this Agreement without prior written consent of XO. Any assignment or transfer in
violation of this Section will be void and have no effect.



B. Notices. Any notices, requests, demands, and determinations under this Agreement (other than
routine operational communications), will be in writing with copies to the legal representative of
the receiving Party, and will be duly given by verifiable means either upon receipt via express,
overnight or certified courier or mail with a reliable system for tracking delivery, delivery costs
paid, sent to the address listed on the first page of this Agreement. A Party may change its
address or designee for notice purposes by giving the other prior written notice of the new address
or designee and the date upon which it will become effective.



C. Counterparts. This Agreement may be executed in counterparts, all of which taken together will
constitute one single agreement between the Parties.



D. Relationship of Parties. The Parties are independent contractors, bound to each other only as
provided for herein. Neither Party has the authority to bind, act on behalf of or represent the
other. Nothing in this Agreement creates a relationship of partnership, employer and employee,
principal and agent, master and servant, or franchisor and franchisee. Neither Party will act or
fail to act in a way that could reasonably cause others to believe that it has authority to act on
behalf of the other beyond the authority expressly granted herein.



E. Audit. During the Term and for a period of three (3) years after any termination or expiration
of this Agreement, Consultant will: (1) provide to XO, access at







Page 4 of 8









 







all reasonable times to billing and payment records relating to the Services and Deliverables, and
reasonable supporting documentation, for the sole purpose of performing audits to verify the
accuracy of charges and invoices; and (2) cooperate fully with XO’s reasonable requests in
connection with such audit, and provide to XO such assistance as they reasonably require. The
Auditors will comply with Consultant’s reasonable security requirements.



F. Insurance. During the Term of this Agreement, Consultant
will procure and maintain at its sole expense (including all deductible and self-insured expenses)
appropriate business insurance, including but not limited to the following types: (a) Property
Insurance covering Consultant property, tools and equipment used and necessary in the performance
of services under this Agreement; (b) Automobile Liability Insurance including coverage for owned,
hired, leased, rented and non-owned vehicles. Except as otherwise provided herein, all coverage
must be primary and non-contributory and must be maintained without interruption from the date of
this Agreement until the date of termination of this Agreement.



G. Severability and Modification. If any provision of this Agreement conflicts with the law under
which this Agreement are to be construed or if any such provision is held invalid by an arbitrator
or a court with jurisdiction over the Parties, such provision will be modified to reflect as
nearly as possible the original intentions of the Parties in accordance with applicable law. The
remainder of this Agreement will remain in full force and effect. If any state or federal body of
competent jurisdiction determines that any provision of this Agreement violates any applicable
rules, policies, or regulations, both Parties will make reasonable efforts to promptly bring this
Agreement into compliance and will endeavor in those efforts to preserve for both Parties the
economic benefits as reflected in this Agreement to the maximum extent possible.



H. Consents and Approval. Except where expressly provided as being in the sole discretion of a
Party, where agreement, approval, acceptance, consent, or similar action by either Party is
required under this Agreement, such action will not be unreasonably delayed, conditioned or
withheld. An approval or consent given by a Party under this Agreement will not relieve the other
Party from responsibility for complying with the requirements of this Agreement, nor will it be
construed as a waiver of any rights under this Agreement, except as and to the extent otherwise
expressly provided in such approval or consent.



I. Waiver of Default. No waiver or discharge hereof will be valid unless in writing and signed by
an authorized representative of the Party against which such amendment, waiver, or discharge is
sought to be enforced. A delay or omission by either Party hereto to exercise any right or power
under this Agreement will not be construed to be a waiver thereof. A waiver by either of the
Parties of any of the covenants to be performed by the other or any breach thereof will not be
construed to be a waiver of any succeeding breach thereof or of any other covenant.



J. Cumulative Remedies. Except as otherwise expressly provided, all remedies provided for in this
Agreement will be cumulative and in addition to and not in lieu of any other remedies available to
either Party at law, in equity or otherwise.



K. Survival. Any provision of this Agreement which contemplates performance or observance
subsequent to any termination or expiration (in whole or in part) will survive any such termination
or expiration (in whole or in part, as applicable) and continue in full force and effect.



L. Third Party Beneficiaries. Except as otherwise expressly provided, this Agreement will not
create any rights in third parties, including End Users, suppliers and vendors of a Party, or to
create any obligations of a Party to any such third parties, or to give any right to either Party
to enforce this Agreement on behalf of a third party.



M. Governing Law. This Agreement and performance hereunder will be governed by and construed in
accordance with the laws of the State of New York, without regard to its choice of law principles
or the U.N Convention on Contracts for the International Sale of Goods. The Parties hereby
expressly opt-out from the applicability of any State’s version of the Uniform Computer Information
Transactions Act.



N. Arbitration. Without prejudice to either Party’s right to seek equitable relief (including, but
not limited to, injunction) from a court of competent jurisdiction, any dispute arising out of or
related to this Agreement that cannot be resolved by negotiation, will be settled by binding
arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the
American Arbitration Association . The arbitration will take place in Fairfax, Virginia, and be
governed by the laws of the State of New York. The Parties will share the costs of arbitration,
including the fees and expenses of the arbitrator, equally, unless the arbitration award provides
otherwise. Each Party will bear the cost of preparing and presenting its case. The arbitrator
will have no power or authority to make awards or issue orders of any kind except as expressly
permitted by this Agreement, and in no event will the arbitrator have the authority to make any
award that provides for punitive or exemplary damages. The arbitrator will use all reasonable
means to settle the dispute with dispatch and will state his/her opinion in writing along with
his/her reasons for the decision. The arbitrator’s decision will follow the plain meaning of the
relevant documents, and will be final and binding. The award may be confirmed and enforced in any
court of competent jurisdiction pursuant to Federal Arbitration Act, 9 U.S.C. §§ 1-16, et
seq. To the extent applicable, the Parties each waive any right they may have to a trial by
jury in any legal proceeding arising from or related to this Agreement.



O. Order of Precedence. Any conflict among or between the terms and conditions of the documents





Page 5 of 8









 







making up this Agreement will be resolved in accordance with the following order of precedence (in
descending order of precedence): (i) this Agreement; (ii) the SOW; (iii) any additional
documentation (e.g, invoices, etc).



P. Mutual Representations. Each Party represents that it has the requisite corporate power and
authority to enter into this Agreement and to carry out the transactions contemplated there under,
and the execution, delivery and performance of this Agreement have been duly authorized.



Q. Entire Agreement. This Agreement, including all addenda, exhibits, schedules or SOWs made
hereunder, constitutes the entire agreement between the Parties with respect only to the subject
matter in this Agreement, the SOW hereunder which specifically reference this Agreement and
supersedes all prior agreements, whether written or oral, with respect to the subject matter
contained therein. This Agreement may be modified only by a written instrument executed by both
parties.



IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly
authorized representatives as of the Effective Date.




	 	 	 	 	 	 	 	 	 
	XO Communications Services, Inc. for itself
and its operating affiliates and subsidiaries:	 	 	 	Thomas Cady:
	 
	 	 	 	 	 	 	 	 
	By
	 	 /s/ Daniel Wagner	 	 	 	 	 	 /s/ Thomas W. Cady
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Printed Name

	 	 Daniel Wagner	 	 	 	Date:	 	 4/15/'09
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title

	 	 President
 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date

	 	 4/21/'09
 

	 	 	 	 	 	 








Page 6 of 8









 








Exhibit 1 To Master Professional Services Agreement



Pursuant to Article 1 of the Master Professional Services Agreement (“Agreement”), the following
capitalized terms and phrases used in the Agreement will have the meanings set forth herein. Terms
that are not so defined will be defined in the context in which they are used.



A. “Affiliate” means, with respect to an entity other than XO, any other entity or person
Controlling, Controlled by, or under common Control with, such entity. With respect to XO,
“Affiliate” means (i) XO Holdings, Inc.; and (ii) all direct or indirect subsidiaries of XO
Holdings, Inc. (other than XO itself).



B. “Claims” means any actual or threatened losses, liability, claims, damages, penalties, costs,
fees, fines, levies, assessments or expenses (including without limitation attorneys’ fees and
costs) arising from or incurred in connection with any investigations, litigation, settlement,
judgment, interest and other penalties.



C. “Confidential Information” means all information, in any form, disclosed by the disclosing Party
to the other Party as defined in the NDA, including without limitation all Deliverables and
information that:





	 	(i)	 	concerns the operations, plans, know-how, trade secrets, business affairs, personnel,
Consultants or suppliers of the disclosing Party; or
	 
	 	(ii)	 	concerns XO Customers or End Users and confidential information belonging to End Users.
	 
	 	(iii)	 	the receiving Party knows or might reasonably expect is regarded by the disclosing
Party as the confidential information of the disclosing Party;
	 
	 	(iv)	 	is designated as confidential, restricted, proprietary, or with similar designation; or
	 
	 	(v)	 	concerns any of the terms or conditions or other facts with respect to this Agreement.




D. “Control” and its derivatives means the legal, beneficial or equitable ownership, directly or
indirectly, of more than fifty percent (50%) of the outstanding voting capital stock (or other
ownership interest, if not a corporation) of an entity, or actual managerial or operational control
over such entity.



E. “Days” means calendar days unless otherwise specified.



F. “Deliverables” means the final work product or other material, regardless of form, that
Consultant is required to deliver to XO in accordance with a Statement of Work.



G. “End User” means XO or the person to which ultimately uses the services provided by Consultant.



H. “Event of Default” means any of the following:





	 	(i)	 	any representation or warranty made by a Party in this Agreement which was incorrect in
any respect when made and that could reasonably be expected to have a material adverse
effect upon the other Party’s ability to realize the benefits of its bargain;
	 
	 	(ii)	 	a material breach of this Agreement that is not cured within thirty (30) Days after
notice of breach to the breaching Party;
	 
	 	(iii)	 	Failure to make any payment when such payment or amount is due and such failure
continues for thirty (30) Days after receipt of written notice of such failure.




I. “Intellectual Property” means all statutory or common law rights in and relating to copyrights,
patents, trademarks, trade secrets, moral rights, or any similar rights established under U.S. law.



J. “IVR Sales Revenue” means revenue (as defined and quantified and reported in XO’s annual
financial statements pursuant to generally accepted accounting principles and XO’s bad debt and
credit reserve policies and procedures and subject to Sarbanes Oxley controls) generated from sales
of XO Interactive Applications, Inbound Call Automation (IVR), Outbound Call Automation,
Intelligent Call Routing, and Hosted Voice XML.



K.
“IVR Sales Revenue Target” means IVR Sales Revenue
equal to $[***].


L. “Law” means all laws, statute, regulation, ordinance, rule, order, decree or governmental
requirement enacted, promulgated or imposed by any governmental authority at any level.



M. “Person” means any individual, corporation, proprietorship, firm, partnership, limited liability
company, trust, association or other entity.



N. “Services” means services set forth in the SOW executed by the Parties and appended to this
Agreement, including access and or license to use all necessary software, third party elements, and
modifications made from time-to-time thereto.



O. “XO Customer/End User” includes, without limitation any XO customers and users of any XO systems
or service offerings. End Users and Confidential Information belonging to XO Customers and End
Users to which Consultant may have access is Confidential hereunder.







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“XO Materials” means XO business, marketing or financial information; tools, software (both in
object code and source code form), hardware, equipment, data, databases, architecture, diagrams,
other materials and know-how, intellectual property and other personal property (both tangible and
intangible) which XO developed prior to the Agreement or which XO independently develops or
licenses from a third party at any time.






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