REFERRAL PARTNER PROGRAM

Residuals Payment Agreement

This Referral Partner Program (“Program”) Residuals Payment Agreement (“Agreement”) is made by and between the business services subsidiary or subsidiaries and/or affiliate(s) of EarthLink, Inc. certified to provide the Service(s) resulting from this Agreement (separately and collectively, “EarthLink Business”) and the entity or individual accepting this Agreement (“Referral Partner”). EarthLink Business and Referral Partner also may be referred to separately as “Party” and together as “Parties.” Upon approval by EarthLink Business, this Agreement is effective as of the date of its acceptance by Referral Partner (“Effective Date”).

1. Definitions. The following terms shall have the definitions attributed to them below:

“MRC” means the monthly recurring charge paid by a new EarthLink Business commercial customer for its monthly Service, exclusive of taxes, fees, non-recurring charges, surcharges and other similar charges.

“Net Billed Revenue” means the monthly recurring charge (“MRC”) for Services billed to a Qualified Customer during the initial service term of its services agreement with EarthLink Business, less applicable taxes, fees, non-recurring charges, surcharges and other similar charges, all discounts, credits, rebates, adjustments or allowances and any Service exclusions set forth in this Agreement or permitted set-off charges.

“Qualified Customer” means a Referral that becomes a new EarthLink Business customer, receives its first invoice for the Services within six (6) months of the original Referral submission and timely pays the first monthly invoice in full. A zero dollar amount billed or the payment of a non-recurring or excluded charge will not constitute a monthly payment.

“Referral” means a prospective commercial customer referred to EarthLink Business by Referral Partner, which in Referral Partner’s reasonable business judgment is qualified to receive a Service, has indicated an interest in purchasing a Service and for whom Referral Partner provides EarthLink Business with such information as it reasonably requests for the purpose of selling such Service. Referrals of current EarthLink Business customers or customers generated by EarthLink Business, its other agents, partners, resellers or another Referral Partner, are not eligible for a Referral Fee.

“Referral Fee” means each monthly payment described in Section 3 (Referral Fees) of this Agreement that EarthLink Business will pay to Referral Partner for a Qualified Customer directly generated by Referral Partner.

“Services” means one or more of the Internet, data, voice and other telecommunications services, including the EarthLink IT Services listed in Section 5, that are offered for sale by EarthLink Business and not otherwise excluded under this Agreement.

2. Responsibilities of Referral Partner. Referral Partner shall submit Referrals by providing the requested information through the Referral Partner Website (www.earthlinkbusiness.com/referralpartner). EarthLink Business hereby grants to Referral Partner a non-exclusive, revocable license to use the Referral Partner Website solely for the purposes of this Agreement. Referral Partner at all times must comply with the Website terms and conditions and strictly maintain the confidentiality of its Referral Partner user ID and password. Referral Partner shall immediately notify EarthLink Business in writing upon learning of any unauthorized use of the Website. Referral Partner shall not directly make referrals to any EarthLink Business employee, agent or other independent sales representative. Referral Partner shall not quote prices or make other commitments with respect to any Service. Referral Partner is to identify itself as an authorized sales representative of EarthLink Business only with respect to the Services and must not promote a Service in any way that is misleading or untrue. Referral Partner is prohibited from legally binding, or making a guarantee or pledge on behalf of, EarthLink Business. Referral Partner shall be solely responsible for its acts and omissions and for all costs incurred by it in performing this Agreement.

3. Referral Fees. Referral orders for eligible Services with a total monthly recurring charge (“MRC”) greater than $250.00 and a service term of at least two (2) years qualify for a monthly residual Referral Fee, unless otherwise excluded under this Agreement. The residual Referral Fee will be determined, on a customer-by-customer basis, by multiplying (i) the monthly Net Billed Revenue for the Service(s) attributable to Referral Partner and (ii) the Referral Fee rate of six percent (6%). This residual Referral Fee rate only applies to Referral orders with standard terms (e.g. pricing) where the prospective aggregate, residual Referral Fee is less than $50,000.00. Referral orders where the aggregate residual Referral Fee is likely to exceed $50,000.00, or that are subject to promotional or non-standard terms, will be evaluated on an individual case basis (“ICB”) and may be subject to a capped or reduced Referral Fee, if any. EarthLink Business reserves the right to change any Referral Fee rate(s), or any other term of the Referral Partner Program, including, without limitation, eligible Services, without notice, with such change being effective, and applicable to all subsequently submitted Referrals, upon posting to the EarthLink Business website (http://www.earthlinkbusiness.com).

4. Payment.

a. Referral Fees. Referral Fees will be paid monthly, by check, within thirty (30) days after EarthLink Business timely receives the full monthly invoice payment from the Qualified Customer, and will be deemed to be correct and binding unless disputed by Referral Partner within thirty (30) days of their payment date. Referral Partner will receive monthly residual Referral Fee payments for eligible Services through the remainder of the initial service term, unless the Service is terminated or this Agreement is terminated in accordance with its terms. No Referral Fee will be paid on any service term renewal or for any service provided on a month-to-month basis. If this Agreement is terminated for any reason by either Party, all Referral Fee payments will immediately end. If EarthLink Business terminates any Service due to non-payment or the breach a Services agreement, the associated Referral Fee payments will immediately end, and will recommence, at Company’s discretion, only if all amounts due are brought current and any other default is cured to the satisfaction of EarthLink Business. If, as of the Effective Date of this Agreement, Referral Partner is being paid a residual referral fee under the legacy referral partner program of an EarthLink Business company, then Referral Partner will continue to receive such payment(s), in accordance with the terms of the agreement pursuant to which that payment was being made as long as Referral Partner is entitled to such payments.

b. Payment Option. During the initial term of this Agreement, Referral Partner may not change their selected payment option (residual vs. one-time payment); however, after the initial term, Referral Partner may change their selected payment option one time per calendar year. EarthLink Business reserves the right (a) to deny any Referral Fee resulting from (i) misrepresentation, fraudulent activity or any violation of law or this Agreement, (ii) Service Orders that Referral Partner did not submit, (iii) Referral orders and customers not accepted by EarthLink Business, (iv) Services that have not been fully paid for or (v) Services that are excluded under this Agreement and (b) to recover any unearned or excess Referral Fee already paid or credited to Referral Partner (e.g. due to miscalculation or an account settlement for less than the outstanding balance) through set-off against any future Referral Fee or by billing Referral Partner, which Referral Partner agrees to pay within thirty (30) days of the billing date.

5. IT Services. The following EarthLink IT Services are eligible for Referral Fees: Data Center Services, Dedicated Server Hosting, Secure Email (Shared Microsoft hosted Exchange 2010, Dedicated Microsoft Exchange 2010 and Dedicated Zimbra), Cloud Hosting, Managed Firewall, Secure Remote Access, Asset Management, Laptop Security, Remote Data Protection, Secure File Transfer Portal, Email Archiving and Email Encryption. Additional information about eligible EarthLink IT Services is available on the EarthLink Business website.

6. Exclusions. Referral Fees will not be paid on any non-recurring charges (e.g. for installations and equipment), any discount, credit, rebate, adjustment or allowance granted to a customer, any tax, fee or surcharge, or other similar charge, including, without limitation, the Universal Service Fund surcharge, E911 and number portability, Cloud Security BusinessReachSM, POTS, single-site DSL, certain usage-based services (e.g. long distance voice, toll free voice, and conference calling), operator services and directory assistance, late fees, collection fees and other administrative charges, EUCL & PILD charges, and all pass-through charges, overage charges on usage based plans (only the monthly recurring charge for bundled usage will be included in the MRC for usage based-services), resale Services and Services ordered for Referral Partner’s own use. The following are not eligible to receive a Referral Fee: existing customers of any EarthLink Business company, current employees of any EarthLink Business company, their parent company or another affiliate (and their immediate family members); Referral customers previously referred to EarthLink Business by a third party or previously solicited by EarthLink Business, its agent, partner, reseller or independent sales representative, or by another referral partner. EarthLink Business sales agents, partners, resellers and independent sales representatives, are excluded from the Referral Partner Program unless prior written approval is obtained from EarthLink Business.

7. Term and Termination. The initial term of this Agreement will be one (1) year, commencing on its Effective Date. Upon the expiration of its initial term, this Agreement will continue on a month-to-month basis unless either Party provides the other Party with written notice of termination at least thirty (30) days before such expiration date. Either Party can terminate this Agreement for convenience with thirty (30) days prior written notice to the other Party. Upon termination of this Agreement by either Party for convenience, EarthLink Business shall have Referral Fee payment obligations only with respect to Referrals made by Referral Partner prior to the termination date that become a Qualified Customer within three (3) months of the termination date. Either Party may immediately terminate this Agreement, with written notice, if the other Party breaches this Agreement or commences (or has commenced against it) a petition, arrangement, action or other proceeding seeking relief or protection under any bankruptcy or similar law. The terms of this Agreement that by their nature are intended to survive its termination shall survive such termination.

8. Confidential Information. Referral Partner shall not disclose to any third party, or use for any purpose other than the performance of this Agreement, any EarthLink Business information that one could reasonably believe to be proprietary or confidential, whether marked or otherwise identified as proprietary or confidential (“Confidential Information”), and will take all reasonable measures to prevent the misuse or unauthorized disclosure of such information. EarthLink Business may immediately terminate this Agreement for any violation of this provision by Referral Partner. Referral Partner agrees that any disclosure or misuse of Confidential Information would result in irreparable injury and that in such event EarthLink Business will be entitled to seek temporary and/or permanent injunctive relief, in addition to any other remedy available at law or in equity, without the requirement of obtaining a bond or proving damages. This obligation of confidentiality will not apply to information that is publicly available through authorized disclosure, that is known by the receiving Party at the time of disclosure (as evidenced in writing), that is rightfully obtained from a third party with the right to disclose it, or that is required by law to be disclosed (provided sufficient notice is given to the disclosing Party to seek an appropriate protective order or exemption from such request or requirement, unless such notice is prohibited). The provisions of this section will remain in effect for a period of two (2) years following the termination of this Agreement.

9. Marketing Restrictions. Referral Partner shall not engage in any form of unsolicited marketing, including unsolicited telephone calls, faxes or electronic communications. Referral Partner shall not hold itself out as an EarthLink Business company or employee, or otherwise promote any Service in a way that may confuse anyone as to its source. Referral Partner shall not use, print or distribute any materials or information containing an EarthLink Business trademark or logo, or issue any press release or similar public announcement regarding the relationship established by this Agreement without prior written approval from EarthLink Business.

10. Indemnity. Referral Partner shall defend, indemnify, and hold harmless EarthLink Business, and its respective directors, officers, employees and agents, from and against any and all third party claims, demands, actions, damages, liabilities, losses and expenses (including attorney’s fees) incurred as a result of Referral Partner’s negligence, willful misconduct, violation of law or claim that EarthLink Business is obligated to pay any tax obligation with respect to compensation received by or paid to Referral Partner pursuant to this Agreement. EarthLink Business will have the right to participate in the defense of all such claims and Referral Partner shall not settle, dismiss or otherwise compromise any such claim without the prior written consent of EarthLink Business.

11. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. ALL SERVICES ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS, WITH NO WARRANTIES, AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, ARE EXPRESSLY DISCLAIMED TO THE EXTENT PERMITTED BY LAW. EARTHLINK BUSINESS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE SERVICES OR THIS AGREEMENT AND THE CUMMULATIVE LIABILITY OF EARTHLINK BUSINESS TO REFERRAL PARTNER FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF REFERRAL FEES, IF ANY, THAT EARTHLINK IS OBLIGATED TO PAY REFERRAL PARTNER UNDER THIS AGREEMENT.

12. Assignment. Neither this Agreement, nor any right or interest hereunder, may be assigned or otherwise transferred without the prior written consent of the other Party, which consent shall not be unreasonably withheld. The foregoing notwithstanding, EarthLink Business may assign this Agreement without consent to an entity that controls, is controlled by, or under common control with, it or pursuant to a merger, reorganization or sale of all or substantially all of its assets or a controlling share of its ownership interests.

13. Non-Solicitation; Authorization. All Referrals by Referral Partner that enter into a Services agreement with EarthLink Business will be deemed to be Customers of EarthLink Business for as long as they are under a contractual obligation with EarthLink Business with respect to the Services. EarthLink Business must receive an acceptable letter of authority (“LOA”) on the Customer’s letterhead, signed by an appropriately authorized employee of the customer and specifically describing the authority granted to Referral Partner, before EarthLink Business will provide any Customer account information to Referral Partner. During the term of this Agreement and for twelve (12) months after its termination, Referral Partner shall not target any prospective or existing customer of EarthLink Business for the purpose of soliciting sales for competitive products or services of another company similar to the Services offered or provided to such customer by EarthLink Business. During the term of this Agreement, and for one (1) year following its termination, Referral Partner agrees not to solicit for employment, or knowingly hire, any employee of EarthLink Business, or any former employee for one (1) year following their separation from EarthLink Business. Referral Partner shall not solicit Referrals from any employee, channel partner or other sales agent, or provide any gift or other form of remuneration to any EarthLink Business employee or their family members that violates any law or EarthLink Business policy.

14. Governing Law. The laws of the State of the state of Delaware will govern any dispute arising out of this Agreement without giving effect to its choice-of-law principles. Any action or proceeding against EarthLink Business arising out of this Agreement shall be brought in the appropriate federal or state court having jurisdiction within the county in which an EarthLink Business affiliate named as a defendant has its corporate offices, and the Parties agree to the jurisdiction and venue of those courts and with respect to such actions and proceedings. Unless otherwise prohibited by law, without the possibility of waiver or limitation, each Party hereby waives its right to a jury trial and agrees that it shall not bring any legal action or proceeding arising out of this Agreement more than two (2) years after the cause of such or proceeding accrues. The prevailing Party in such dispute shall be entitled to reimbursement from the other Party for its costs and expenses, including reasonable attorneys’ fees, regardless of whether any formal legal action or proceeding is filed. The Parties agree that the remedy at law for any breach, or threatened breach, of Section 8 of this Agreement is inadequate to compensate it for the damages certain to result and that in the event of such breach, or threatened breach, that the non-breaching Party shall be entitled to seek injunctive relief without any requirement of obtaining a bond or proving damages, in addition to any other available remedy or relief.

15. Notices. Except as otherwise provide herein, any notice required to be given in writing shall be in English and sent Agreement shall be provided: (i) in writing by fax, with such notice being effective the date transmission is confirmed by sender’s machine; (ii) by overnight courier, with such notice being effective the date of delivery; or (iii) by U.S. Mail, which notice will be effective five (5) days after the date of mailing). Referral Partner shall direct any legal notice to EarthLink Business’s General Counsel by U.S. mail, certified with return receipt. The notice for any change applicable to all Referral Partners, or to the Referral Partner Program, may, at the sole discretion of EarthLink Business, be posted to the Referral Partner Program Website or directed to the individual and address or fax number provided in Referral Partner’s program application. Either Party may change its contact information for purposes of notice by providing timely, written notice of such change to the other Party.

16. Miscellaneous. This Agreement supersedes all prior understandings and agreements, written or oral, between the Parties with respect to its subject matter and all past dealings or industry custom. This Agreement is non-exclusive and Referral Partner hereby acknowledges that EarthLink Business may market and sell its Services using its employees and other referral partners and sales agents without obligation to Referral Partner. The Parties are independent contractors and this Agreement shall not be construed to create a joint venture, partnership or employment relationship, impose any obligation or liability attributable to such an association or permit either Party to legally bind the other. Each Party hereby represents that it has the power and authority to enter into, and to perform its obligations under this Agreement and that this Agreement does not conflict with any other agreement to which it is a party. Referral Partner is responsible for all taxes, fees and surcharges on any payments made to it under this Agreement and shall indemnify EarthLink Business against any non-payment of such amounts. Except for changes applicable to all Referral Partners or the Referral Partner Program, any modification to this Agreement must be made in a writing signed by the Parties duly authorized representatives. The invalidity or unenforceability of any provision, in whole or in part, shall not affect or impair the validity or enforceability of any other provision of this Agreement or any unaffected portion of such provision. The failure of either Party to exercise any right under this Agreement shall not be considered a waiver of the right to enforce that right in the future or a waiver of any other right.

PARTNER’S ASSENT: Click “I agree” to confirm that you have read and understand this Residual Payment Agreement and to indicate your unconditional and complete acceptance and agreement to abide by all of the terms and provisions of this electronic Referral Partner Program Residual Agreement. You will receive an e-mail notice confirming whether EarthLink Business accepts your application to become a Referral Partner.