Exhibit 10.10
Exhibit 10.10 Resellers Agreement between Xxxxxx Wireless Inc. and
Innofone Canada Inc., dated as of April 20, 2000
RESELLER AGREEMENT
BETWEEN
XXXXXX WIRELESS INC.
and
INNOFONE CANADA INC.
DATED APRIL 20, 2000
TABLE OF CONTENTS
DEFINITIONS
5
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1.1 DEFINITIONS
5
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1.2 GENDER.
7
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1.3 HEADINGS.
7
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1.4 SCHEDULES.
8
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1.5 EFFECTIVE DATE.
8
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APPOINTMENT OF RESELLER
8
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2.1 APPOINTMENT AS RESELLER.
8
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2.2 RESALE MARKET.
8
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2.3 COMPETITION.
8
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2.4 NO RIGHTS TO ROGERS' FACILITIES.
8
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ROGERS SERVICES
9
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3.1 PROVISION OF SERVICE.
9
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3.2 LIMITATIONS ON SERVICE.
9
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3.3 LIMITATIONS ON ROAMING SERVICE.
9
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3.4 REASSIGNMENT OF/NO PROPERTY IN NUMBERS.
10
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3.5 LACK OF PRIVACY.
10
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3.6 DESIGN OF ROGERS FACILITIES.
10
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3.7 CHANGES TO SERVICES.
10
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3.8 ACTIVATION/DEACTIVATION.
10
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3.9 DIRECTORY LISTINGS.
11
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3.10 OPERATOR ASSISTANCE.
11
RESTRICTIONS ON USE OF SERVICE
11
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4.1 ABUSE OR FRAUDULENT USE.
11
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4.2 CANCELLATION OF SERVICE TO END USER.
12
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4.3 INTERFERENCE.
12
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RATES AND TERMS OF PAYMENT
12
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5.1 RATES.
12
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5.2 PAYMENT OF CHARGES.
12
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5.3 BILLING RECORDS
13
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5.4 TIME OF PAYMENT
13
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5.5 DISPUTED CHARGES.
13
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5.6 SECURITY.
14
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5.7 MIGRATION PROTECTION
15
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EQUIPMENT
15
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6.1 EQUIPMENT.
15
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6.2 SUPPLY TERMS.
15
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RESELLER'S OBLIGATIONS
16
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7.1 OBLIGATIONS TO END USERS.
16
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7.2 ETHICAL RESPONSIBILITIES.
16
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7.3 RESPONSIBILITY FOR ACTIONS OR OMISSIONS
16
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7.4 RESPONSIBILITY FOR AGENTS.
17
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7.5 CONTRACTS WITH END USERS
17
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7.6 RESELLER OPERATIONS MANUAL
18
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7.7 INTERFERENCE WITH ROGERS DEALERS/CUSTOMERS
18
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7.8 MINIMUM NUMBER OF CUSTOMERS.
19
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7.9 COMMITMENT.
19
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7.11 RIGHT OF FIRST OFFER
19
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ROGERS' OBLIGATIONS
20
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8.1 SERVICE.
20
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8.2 REGULATORY APPROVAL
20
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8.3 NOTICE OF MATERIAL CHANGE IN SERVICE.
20
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LIMITATION OF LIABILITY/INDEMNITY/INSURANCE
20
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9.1 LIMITATION OF ROGERS' LIABILITY.
20
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9.2 LIMITATION OF LIABILITY.
21
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9.3 INDEMNITY AND INSURANCE
22
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9.4 MAINTENANCE OF INSURANCE
22
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NO WARRANTY
22
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10.1 NO WARRANTY.
22
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10.2 ACKNOWLEDGEMENT.
23
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TERM AND TERMINATION
23
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11.1 TERM.
23
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11.2 TERMINATION BY ROGERS.
23
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11.3 TERMINATION BY RESELLER.
25
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11.4 USE OF INFORMATION UPON TERMINATION.
25
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11.5 CONTINUING OBLIGATIONS
25
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11.6 NO OBLIGATION FOR CONTINUING SERVICE TO END USERS
25
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RIGHT OF FIRST REFUSAL
26
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12.1 RIGHT OF FIRST REFUSAL
26
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12.2 EXTENSION OF RIGHT OF FIRST REFUSAL.
27
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TRADE NAME AND TRADEMARK
27
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13.1 ROGERS' RIGHTS.
27
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13.2 EQUIPMENT BRANDING.
27
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CONFIDENTIALITY
28
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14.1 CONFIDENTIAL INFORMATION.
28
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14.2 REMEDY FOR BREACH
29
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RESTRICTIONS
29
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15.1 RESTRICTION ON BUNDLING.
29
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15.2 NON-SOLICITATION.
29
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GENERAL
30
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16.1 RELATIONSHIP OF PARTIES.
30
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16.2 NOTICES.
30
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16.3 FORCE MAJEURE
31
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16.4 FURTHER ASSURANCES.
31
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16.5 WAIVER.
31
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16.6 SUCCESSORS AND ASSIGNS
31
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16.7 SEVERABILITY
31
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16.8 TIME.
32
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16.9 GOVERNING LAW
32
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16.10 EXECUTION IN COUNTERPARTS.
32
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16.11 SURVIVAL.
32
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16.12 ENTIRE AGREEMENT
32
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16.13 AMENDING THE AGREEMENT
32
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16.14 REVIEW BY COUNSEL
33
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INDEPENDENT INVESTIGATION
33
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RESELLER AGREEMENT
This Agreement shall be effective as of the 20 day of April, 2000.
BETWEEN:
XXXXXX WIRELESS INC., a corporation incorporated
under the laws of Canada
(hereinafter referred to as "Rogers")
- and -
INNOFONE CANADA INC. a corporation incorporated
under the laws of Canada__
(hereinafter referred to as "Reseller")
WHEREAS Rogers is engaged in the business of providing a variety of
wireless communications services, including the Rogers Services (as defined
below);
AND WHEREAS Reseller desires to purchase and resell access to and use
of the Rogers Services to (i) VISA customers of Canadian Imperial Bank of
Commerce ("CIBC") through CIBC's "Guaranteed Proof" program, (ii) VISA customers
of VISA Desjardin and (iii) other customers who participate in similar programs
as may be approved by Rogers from time to time, on the terms set out in this
Agreement;
NOW THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions
"Activate" means the establishment by Rogers of an initial connection
of a unit of Equipment to the Rogers Facilities, and "Activated" shall have a
corresponding meaning.
"Affiliates" means a relationship which exists where one corporation is
a subsidiary of the other, or where both are subsidiaries of the same
corporation, or where each of them are controlled, directly or indirectly, by
the same person or corporation or group of persons and/or corporations. Control,
for the purposes hereof, means effective control and one corporation shall be a
subsidiary of another if the first referred to corporation is controlled
directly or indirectly by the other.
"Agreement" means this reseller agreement and all schedules and
amendments to it. Allowed Migration Percentage" means, with respect to the
calendar year ending on (i) December 31, 2000, 16%, (ii) December 31, 2001, 18%,
and (iii) December 31, 2002, 20%.
"Bundle" means the promotion, marketing or offering by Reseller of the
cellular services together with one or more other services or products, where
the fees for the cellular services are not separately set out (i.e. a single
price point) or where a customer is required to purchase more than one product
or service from Reseller.
"Business Hours" means the hours during which Rogers offices are open
to conduct business as set out in the Reseller Operations Manual.
"Deactivate" means the termination of the provision of the Rogers
Services with respect to a unit of Equipment.
"End User" means a person or entity that (i) uses the Rogers Services
as a result of being offered the Rogers Services by Reseller, and (ii) that is
billed directly for the Rogers Services by Reseller as provided for in this
Agreement.
"Equipment" means a receiving/transmitting device which has been
approved by
(i) Industry Canada for use in Canada, and (ii) Rogers for use as an end-user
terminal in connection with the Rogers Services.
"Monthly Migrated Customers" means, for any period of one month, the
total number New Customers during such period and who were formerly customers of
Rogers at any time during the period of three months prior to the commencement
of such monthly period.
"Monthly Migration Percentage" means for any calendar month, the
quotient obtained by dividing the (i) Monthly Migrated Customers for such month,
by (ii) number of New Customers for such month.
"New Customers" means, during any period, the aggregate of all
customers of Reseller that commenced receiving the Rogers Services during such
period, which would occur with respect to each customer once Rogers had
activated such customer's number in its billing system.
"Number" means any telephone number or e-mail address, assigned to
Reseller by Rogers
and associated with the Equipment of Reseller or its End Users, enabling use of
the Rogers Facilities.
"Person" includes an individual, partnership, firm, body corporate or
government body or department thereof and the legal representatives of such
person.
"Reseller Operations Manual" means the rules, policies and procedures
governing the operations of Reseller and the performance of its obligations
hereunder, as the same may be issued or amended from time to time by Rogers,
with any amendment becoming effective for the purposes of this Agreement upon
receipt by Reseller of written notice thereof. The initial Reseller Operations
Manual is attached hereto as Schedule "C".
"Rogers Facilities" means the telecommunications switching equipment,
cell site transceiver equipment and other equipment maintained, expanded,
modified or replaced by Rogers to provide the Rogers Services.
"Rogers Services" means the cellular radio-based telecommunications
services, both analogue and digital, offered by Rogers from time to time using
the
Rogers Facilities, including Personal Communications Services (PCS), and which
Rogers is authorized or permitted by the appropriate regulatory authorities to
provide in Canada.
"Service Area" means the geographic locations in which the Rogers
Services are available from time to time.
"Unauthorized Use" means any use of the Rogers Facilities or any
Equipment or Number by any Person in any abusive or fraudulent manner or in a
manner that has not been authorized by Rogers, including but not limited to the
modification of the electronic serial number (ESN) originally installed by the
manufacturer in a cellular phone (which shall include the practices generally
referred to as "counterfeiting", "cloning fraud" or "tumbling fraud") or
engaging in any of the practices referred to in Section 4.1.
"VISA Customers" means VISA customers of (i) CIBC that participate in
CIBC's "Guaranteed Proof" program, and (ii) VISA Desjardin that participate in
VISA Xxxxxxxxx'x "Aim to Save" program.
1.2 Gender.
Except where the context otherwise indicates, words importing the
singular number only shall include the plural, and vice versa, and words
importing the masculine gender shall include the feminine gender.
1.3 Headings.
The headings of all Articles or Sections herein are inserted for
convenience of reference only and shall not affect the construction or
interpretation hereof.
1.4 Schedules.
The following are the Schedules attached to and incorporated in this
Agreement by reference and deemed to be part hereof:
Schedule "A" - Pricing
Schedule "B" - Billing Information
Schedule "C" - Reseller Operations Manual
Schedule "D" - Reseller Supply Terms
1.5 Effective Date.
There shall be no agreement, oral or written, between the parties set
forth in this document with respect to the provisions set forth herein until
Reseller shall have signed and delivered two copies of this Agreement to Rogers
and two duly authorized signing officers of Rogers shall have executed this
Agreement and delivered a signed copy thereof to Reseller.
ARTICLE 2
APPOINTMENT OF RESELLER
2.1 Appointment as Reseller.
In reliance on the representations made by Reseller, Rogers hereby
appoints Reseller and Reseller agrees to act as an authorized reseller of the
Rogers Services upon the terms and conditions of this Agreement.
1.2 Resale Market.
Reseller agrees that it shall resell the Rogers Services and the
Equipment purchased in accordance with this Agreement only to (i) VISA Customers
, and (ii) other customers who participate in similar programs as may be
approved by Rogers in writing from time to time in its sole discretion.
2.3 Competition.
Rogers reserves the right to appoint other persons as resellers of the
Rogers Services in any area at any time and to itself engage, directly or
indirectly in the solicitation of customers and the sale of the Rogers Services
in competition with Reseller.
2.4 No Rights to Rogers' Facilities.
No provision of this Agreement shall be construed as vesting in
Reseller any control or ownership interest whatsoever in any equipment,
facilities or operations of Rogers including the Rogers Facilities.
ARTICLE 3
ROGERS SERVICES
3.1 Provision of Service.
Rogers agrees to provide the Rogers Services to End Users with respect
to whom Reseller has requested the provision of the Rogers Services in
accordance with the provisions of this Agreement. In this regard, Rogers shall
register on the Rogers Facilities Equipment used by such End Users and provide
the Rogers Services to such End Users during the term of this Agreement, unless
it is notified by Reseller to cease the provision of the Rogers Services to such
End Users as specified in such notice. Reseller agrees to inform its End Users
of the Service limitations contained in this Section.
3.2 Limitations on Service.
Reseller acknowledges and agrees that the Rogers Services are made
available to End Users only when their Equipment is in operating range of the
Rogers Facilities. The Rogers Services may be temporarily refused, interrupted,
or limited because of: (i) limitations to the Rogers Facilities; (ii)
transmission limitations caused by atmospheric, topographical or other factors
reasonably outside of Rogers' control; or (iii) equipment modifications,
upgrades, relocations, repairs, and other similar activities necessary for the
proper or improved operation of the Rogers Services. Individual calls may be
involuntarily disconnected for a variety of reasons, including without
limitation atmospheric conditions, topography, weak batteries, system over-
capacity, movement outside a Service Area and gaps in coverage within a Service
Area.
3.3 Limitations on Roaming Service.
Rogers will use reasonable commercial efforts to provide the same
roaming service to End Users that is available to Rogers' other customers.
Notwithstanding the preceding sentence,
Rogers, or another entity with which Rogers has a roaming agreement, may in its
sole discretion suspend roaming privileges to any end User if it discovers or
suspects that the Numbers assigned to such End-User are being used in a
fraudulent manner. Rogers agrees to use reasonable commercial efforts to provide
Reseller with prior or prompt subsequent, notification of any such suspension of
roaming service; provided, however, that Rogers shall have no liability arising
out of any failure to notify Reseller.
3.4 Reassignment of/No Property in Numbers.
Reseller acknowledges that Rogers may be required to change or reassign
Numbers previously provided to Reseller from time to time. Rogers will endeavour
to provide Reseller with notice of the intended change in advance of making any
such change. Reseller agrees to inform its End Users of the provisions of this
Section, and further acknowledges and agrees that neither it nor any End User
shall have or acquire any proprietary right in any specific Number provided by
Rogers.
3.5 Lack of Privacy.
Reseller acknowledges, and shall inform all End Users, that (i) it is
possible for third parties to monitor voice and data traffic over the Rogers
Facilities and privacy cannot be guaranteed, (ii) if Reseller or an End User
desires to secure transmission of data, Reseller or such End User must provide
for its own means of data encryption, and (iii) Reseller and the End User assume
full responsibility for the establishment of appropriate security measures
(including, without limitation, the selection of passwords and the like) to
control access to their own respective Equipment and information.
3.6 Design of Rogers Facilities.
Reseller acknowledges and agrees that the design, engineering and
construction of the Rogers Facilities is entirely within Rogers' discretion and
Rogers is under no obligation to make any additions or modifications to the
Rogers Facilities to accommodate the needs or desires of Reseller or its End
Users.
3.7 Changes to Services.
Reseller acknowledges and agrees that the Rogers Services being
provided shall be subject to such modifications, additions and deletions as
Rogers may determine from time to time.
3.8 Activation/Deactivation.
(1) Rogers will use reasonable commercial efforts to Activate the Equipment of
End Users to the Rogers Facilities within four (4) Business Hours of Rogers'
receipt of a request from Reseller for the provision of the Rogers Services in
accordance with the procedures set out in this Agreement and the Reseller
Operations Manual.
(2) Rogers will use reasonable commercial efforts to Deactivate the Equipment of
End Users from the Rogers Facilities within four (4) Business Hours of Rogers'
receipt of a request from Reseller to effect such Deactivation in accordance
with the procedures set out in this Agreement and the Reseller Operations
Manual.
(3) Any requests from Reseller to Activate, Deactivate or make any change in the
Rogers Services will be accepted by Rogers only from Reseller, and not from
agents of Reseller or from End Users.
(4) Rogers shall use reasonable efforts to maintain a sufficient inventory of
Numbers in order to satisfy Reseller's requirements therefor from time to time.
If, at any time, Reseller requires an unusual number of Numbers in any
particular geographic location, it shall provide Rogers written notice of its
requirement for such Numbers not later than seventy-five (75) days prior to the
time when such Numbers are required. Failure to provide such a notice or
inaccurate forecasting could result in delays in receiving Numbers up to
seventy-five (75) days from the time of request.
3.9 Directory Listings.
Rogers does not provide a directory listing service for the Numbers. It
is the responsibility of Reseller or the End Users to obtain such directory
listings at its or their expense.
3.10 Operator Assistance.
Rogers does not itself provide operator assistance to End Users, but
shall make available the operator assistance which is offered by the wireline
telephone companies, at the same rates as Rogers charges its retail customers.
ARTICLE 4
RESTRICTIONS ON USE OF SERVICE
4.1 Abuse or Fraudulent Use.
The Rogers Services are furnished by Rogers for use by Reseller and its
End Users in accordance with the terms of this Agreement and the Reseller
Operations Manual and subject to the condition that there will be no abuse or
fraudulent use thereof. Abuse and fraudulent use of the Rogers Services
includes, but is not limited to:
(a) attempting or assisting another to access, alte or interfere with
the communications of and/or information about another customer;
(b) tampering with or making an unauthorized connection to the Rogers
Facilities;
(c) using or assisting another to use any scheme, false representation
or false credit device, or other fraudulent means or devices in
connection with the Rogers Services;
(d) using the Rogers Services in such a manner so a to interfere
unreasonably with the use of the Rogers Service by one or more
other customers or End Users or to interfere unreasonably with
Rogers' ability to provide the Rogers Service; or
(e) using the Rogers Services to convey information that is obscene,
salacious, prurient or unlawful.
4.2 Cancellation of Service to End User.
If Rogers determines that any End User has engaged in any Unauthorized
Use of the Rogers Services, Rogers may Deactivate such End User from the Rogers
Services. Further, Rogers reserves the right to disconnect or suspend the Rogers
Services to any Equipment that Rogers believes may not function properly on, or
that may adversely affect the operation of the Rogers Facilities.
4.3 Interference.
The parties understand that from time to time one or more End Users may
interfere with the Rogers Facilities in such as way as to impair the quality of
the Rogers Services. Upon either party's discovery of any such abuse by an End
User, such party shall promptly notify the other party, and Reseller shall
immediately order the End User to cease from engaging in such act(s) of
interference. Rogers shall have the right to discontinue the Rogers Service to
that End User should such act(s) continue. Reseller shall assist Rogers in
taking all actions reasonably necessary to prevent any further interference.
ARTICLE 5
RATES AND TERMS OF PAYMENT
5.1 Rates.
(1) Rogers agrees to sell to Reseller, and Reseller agrees t purchase from
Rogers, the Rogers Services at the rates and on the terms and
conditions described in Schedule "A".
(2) For purposes of calculating volume-based charges in accordance with the
pricing with respect to Rogers Services as set out on Schedule "A".
5.2 Payment of Charges.
(1) Without limiting the generality of Section 5.1, Reseller agrees to pay to
Rogers all fees and other charges as set forth in Schedule "A" for each Number
assigned to Reseller, including, without limitation:
(a) the applicable charges for all calls originatin from, and all
charged calls accepted by an End User using, Equipment that uses
Numbers assigned to Reseller;
(b) the applicable charges for all services of othe telecommunications
carriers and the exercise of roaming privileges in those areas
served by other cellular telephone system operators with whom
Rogers has roaming agreements; and
(c) any minimum charges, early cancellation fees an other charges.
(2) Reseller shall be responsible for all charges associated with any
Equipment that is stolen, lost or destroyed until such time as Rogers
is notified of any such theft, loss or destruction in accordance with
the procedures outlined in the Reseller Operations Manual.
(3) No compensation or adjustment will be made to rates and charges owing
by Reseller in the event of any refusal or interruption of service or
equipment.
(4) Reseller agrees to pay all applicable taxes in connectio with the
transactions set out in this Agreement.
5.3 Billing Records
Reseller shall keep accurate books and records of all amounts owing to
it by its customers and by it to Rogers and of all calculations of such amounts.
Reseller agrees to provide monthly reports to Rogers of such items in a form
acceptable to Rogers. Unless otherwise specified by Rogers, such reports with
respect to a month shall be provided to Rogers contemporaneously with the
monthly payment for such month as set out in Section 5.4(1). In addition, Rogers
shall have the right to audit Reseller's books and records during normal
business hours in respect of all amounts owing under this Agreement and the
calculation thereof.
5.4 Time of Payment
(1) Subject to Section 5.4(2), all amounts owing by Reseller to Rogers under
this Agreement with respect to any month shall be due on the 20th day of the
following month. Reseller agrees to pay to Rogers interest on all overdue
amounts at a rate of 1.5% per month (19.56% per annum) calculated and applied
monthly.
(2) In the event that a Reseller has incurred a material amount of non-recurring
charges or otherwise presents an unacceptable risk of loss to Rogers, as
determined by Rogers in its sole discretion, Rogers may request immediate
payment from Reseller on an interim basis. In such cases, the charges will be
considered past due three (3) days after Rogers demands payment thereof.
5.5 Disputed Charges.
(1) Reseller may provide Rogers with written notice of any disputed charges
within (i) 30 days, in the case of roaming charges, and (ii) 90 days, in the
case of all other charges, after the mailing date of the first invoice
containing such disputed charges. If Reseller fails to provide Rogers written
notice of any disputed charges within such time periods, Reseller shall have no
right to dispute such charges. Further, Reseller acknowledges and agrees that
sending such a notice of disputed charges does not excuse or defer Reseller's
obligations of full payment of the invoice in accordance with Section 5.4(1).
Rogers shall use reasonable commercial efforts to provide Reseller with its
determination with respect to disputed charges within 20 days after its receipt
of Reseller's notice of dispute and, if appropriate, will credit Reseller's
account.
(2) Without limiting the generality of any other provision hereof, it is
acknowledged that the failure of End Users to pay Reseller any amount or the
perpetration of any fraud or deceit upon Reseller or any direct or indirect
agent of Reseller shall not relieve Reseller of any of its obligations to pay
Rogers all amounts owing under Section 5.1.
5.6 Security.
(1) Contemporaneously with the execution of this Agreement, Reseller shall
provide to Rogers a security deposit or an irrevocable letter of credit
in a form satisfactory to Rogers in the amount of $100,000 to secure
the performance of Reseller's obligations under this Agreement and any
other agreement between Rogers and Reseller. Thereafter, Reseller
shall, upon Rogers' request, be obligated to increase the amount of
such security deposit or replace such letter of credit such that the
amount of the security deposit or letter of credit is equal to the
value of the amount of charges incurred by Reseller hereunder during
the three month period prior to such request. In the event that
Reseller provides
Rogers with a cash deposit, Reseller hereby grants to Rogers a security
interest in such deposit.
(2) The provision of a deposit or letter of credit by Reseller does not in
any way modify Reseller's obligations under this Agreement with respect
to the payment of amounts due to Rogers. From time to time, Rogers may
apply all or any part of the deposit or amount available under the
letter of credit to sums due hereunder or to cure other breaches of
this Agreement by Reseller. This right of setoff is in addition to all
other rights and remedies available to Rogers under this Agreement or
at law or in equity. Reseller shall restore the deposit or amount
secured by the letter of credit to an amount that is acceptable to
Rogers within ten days of Rogers' written notice to do so.
(3) Any deposit paid to Rogers in accordance with Section 5.6(1) shall be
held by Rogers without interest payable to Reseller. Upon the expiry or
termination of this Agreement for any reason, Rogers shall have the
right to apply the deposit or letter of credit against any outstanding
balance in Reseller's account. In the event that there is no
outstanding balance or it is less than the amount of the deposit, the
deposit or the remainder of the deposit, as the case may be, shall be
refunded to Reseller.
(4) In the event that Reseller files for bankruptcy protection or an
involuntary bankruptcy petition is filed against Reseller, Rogers and
Reseller agree that Rogers shall be entitled to recoup against the
deposit any sums that are owed by Reseller to Rogers at that time.
Should Rogers seek relief from any stay in order to effect such
recoupment, although such relief may not be required under applicable
law, Reseller agrees to the entry of relief from the stay to allow
Rogers to recoup the deposit and to raise no defences thereto. Rogers
and Reseller agree that the deposit and Reseller's obligations under
this Agreement arise out of the same transaction.
5.7 Migration Protection
If at the end of each calendar year during the term of the Agreement,
the weighted average of the Monthly Migration Percentage for each month during
such year exceeds the Allowed Migration Percentage for such year, then Reseller
would pay to Rogers an amount equal to the product of A multiplied by B where:
A equals $200; and
B equals the product of (i) the amount (expressed as a percentage) by
which the weighted average of the Monthly Migration Percentage for each
month during such year exceeds the Allowed Migration Percentage for
such year, multiplied by (ii) the sum of all New Customers during such
year.
ARTICLE 6
EQUIPMENT
6.1 Equipment.
(1) Reseller shall ensure that any Equipment used by it, its agents, or its
End Users in connection with the Rogers Services is approved by Rogers
for use in connection with the Rogers Facilities and meets the
standards of all applicable regulatory authorities. Rogers may, without
liability, refuse to Activate or Deactivate any Equipment that does not
comply with these standards.
(2) Rogers shall not be responsible to Reseller or any End User for the
installation, operation, quality of transmission, or testing and
maintenance of any cellular telephone unit or cellular terminal
equipment. Rogers shall have no obligation to sell or otherwise provide
Equipment to Reseller's End Users.
6.2 Supply Terms.
(1) Rogers agrees to supply certain Equipment described in Section 6.2(2)
to Reseller from time to time in accordance with the Reseller Supply
Terms attached hereto as Schedule "D"(as the same may be amended by
Rogers at any time in its sole discretion upon notice to Reseller),
provided, however, that if Rogers provides not less than sixty (60)
days prior written notice to Reseller that it will no longer be
supplying Equipment to its distributors of Rogers Services, then Rogers
shall have no further obligation to supply Equipment to Reseller under
this Section 6.2(1).
(2) During the term of the Reseller Agreement, Rogers agrees to make
the Nokia 5160 available to Reseller for a price of $99. Upon the request of
Reseller, Rogers agrees to make available for purchase by Reseller, cellular
phones of a particular make and model instead of such phone, which make and
model shall be determined from time to time by mutual agreement of the parties.
The price for such phones shall be determined by Xxxxxx.
(3) In the event that a customer who has purchased a phone from Reseller and
such customer deactivates from the Xxxxxx Facilities prior to the date that is
12 months following such customer's activation (the "Initial Term"), then
Reseller shall pay to Xxxxxx an additional amount equal to the lesser of $200
and the amount determined by multiplying (i) the number of months (for the
purpose of this calculation, partial months shall be counted as full months)
from the date of such deactivation remaining in the Initial Term, by (ii) $20.
Also, if a phone purchased from Xxxxxx is not activated by Reseller within 75
days of its purchase, then Reseller shall be required to pay Xxxxxx' full retail
rate for such phone.
ARTICLE 7
RESELLER'S OBLIGATIONS
7.1 Obligations to End Users.
(1) With respect to the matters covered by this Agreement, Xxxxxx shall be
obligated only to Reseller and not to End Users. End Users shall not be deemed
to be third-party beneficiaries of this Agreement.
(2) Reseller shall be solely responsible to provide an adequate and properly
trained staff to receive and investigate any complaints from its End Users
relating to the Xxxxxx Services. Reseller agrees to report any trouble with the
Xxxxxx Services to Xxxxxx immediately upon Reseller's reasonable verification
that such trouble is due to reasons other than the misuse or malfunctioning of
the End User's Equipment or the failure of such Equipment to meet the technical
standards for compatibility with the Xxxxxx Service.
7.2 Ethical Responsibilities.
Neither party shall do anything that would tend to discredit,
dishonour, reflect adversely upon, or injure, in any manner, the reputation or
business of the other party, or in the case of Xxxxxx, any other reseller, agent
or dealer of Xxxxxx. Each party shall be governed in all its dealings with
respect to this Agreement by the highest standards of honesty, integrity, and
fair dealing.
7.3 Responsibility for Actions or Omissions
Reseller shall be solely responsible for all risks and expenses
incurred in connection with its actions or omissions in the sale of the Xxxxxx
Services or otherwise relating to this Agreement. Reseller shall act in all
respects on its own account, and shall be solely responsible for such things as
credit verification, deposits, billing, collection, consolidation, rebilling,
customer complaints, charges for usage, bad debts, and except as provided in the
Reseller Operations Manual, Unauthorized Use of any Number assigned to Reseller,
whether by Reseller, an End User, or any third party.
7.4 Responsibility for Agents.
Reseller is responsible for the performance of its agents, if any, and
shall ensure that its agents are in compliance with any applicable terms of this
Agreement, and any other applicable industry standards.
7.5 Contracts with end Users
(2) Contract Required - Reseller agrees that each End
User will sign a contract containing the information
referenced in Sections 3.1, 3.4 and 3.5, together with
language similar in all material aspects to the subparagraphs
set forth below:
(i) [END USER] HAS NO PROPERTY RIGHT IN THE TELEPHONE ACCESS NUMBER
OR E-MAIL ADDRESS, IF APPLICABLE.
(ii) [END USER] EXPRESSLY UNDERSTANDS AND AGREES THA IT HAS NO
CONTRACTUAL RELATIONSHIP WHATSOEVER WITH UNDERLYING CARRIER AND
THAT [END USER] IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT
BETWEEN [RESELLER] AND THE UNDERLYING CARRIER. IN
ADDITION, [END USER] EXPRESSLY UNDERSTANDS AND AGREES THAT THE
UNDERLYING CARRIER SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER
LIABILITY OF ANY KIND TO [END USER]. REGARDLESS OF THE FORM OF
THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE,
STRICT LIABILITY IN TORT OR OTHERWISE, END USER'S EXCLUSIVE
REMEDY AND THE TOTAL LIABILITY OF THE UNDERLYING CARRIER ARISING
IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, FOR ANY CAUSE
WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY FAILURE OR
DISRUPTION OF SERVICE PROVIDED HEREUNDER, IS LIMITED TO PAYMENT
OF DAMAGES IN AN AMOUNT EQUAL TO THE PORTION OF THE FIXED MONTHLY
(iii) CHARGE TO (END USER) FOR THE SERVICES RELATING TO THE PERIOD OF
SERVICE DURING WHICH SAID DAMAGES OCCUR.
(iv) UNLESS CAUSED BY THE NEGLIGENCE OF [RESELLER] [END USER] SHALL
INDEMNIFY AND HOLD HARMLESS THE UNDERLYING CARRIER SUPPLYING
SERVICES TO [RESELLER], AND ITS OFFICERS, EMPLOYEES, AND AGENTS
AGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS
FOR LIBEL, SLANDER, INFRINGEMENT OF COPYRIGHT, OR PERSONAL INJURY
OR DEATH, ARISING IN ANY WAY DIRECTLY OR INDIRECTLY IN CONNECTION
WITH THIS AGREEMENT OR THE USE, FAILURE TO USE, OR INABILITY TO
USE THE ACCESS TELEPHONE NUMBER. THIS INDEMNITY SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
(2) Reseller may, at its option, include such other
provisions or modify the foregoing provisions to apply to
Reseller as well as to Xxxxxx, so long as such additions or
modifications do not mitigate the effect of the foregoing.
7.6 Reseller Operations Manual
Reseller shall at all times comply with the rules, policies, and
procedures and other matters set out in the Reseller Operations Manual,
including, without limitation, all fraud management procedures.
7.7 Interference with Xxxxxx Dealers/Customers
Reseller shall not contract with, enter into arrangements with or
otherwise deal with or accept subscriptions or sales leads from any Xxxxxx
agent, dealer or sales representative. Similarly, Reseller shall not, directly
or indirectly, target Xxxxxx' customers for the purpose of contracting them as
End Users.
7.8 Minimum Number of Customers.
Reseller agrees that during the period commencing eighteen months
following the date of this Agreement and ending on the expiry of this Agreement,
Reseller agrees to maintain at all times at least 10,000 End Users Activated to
the Xxxxxx Facilities.
7.9 Commitment.
Reseller shall be required to have not less than 5,000 Numbers
activated on the first anniversary of the date of the Agreement, 15,000 Numbers
activated on the second anniversary of the date of the Agreement, and 25,000
Numbers activated on the third anniversary of the date of the Agreement. If, on
any such anniversary, Reseller does not have the applicable Numbers activated as
set out above, then it would be required to pay to Xxxxxx an amount equal to the
product of $20 and the amount by which the applicable number of Numbers for such
anniversary exceeds the actual number of Numbers activated by Reseller on such
anniversary date. Reseller acknowledges that any amounts that become payable by
it to Xxxxxx pursuant to this Section 7.9 are a genuine pre-estimate of Xxxxxx
damages in connection with the Retailer's failure to meet its commitments and
not a penalty. In addition to Xxxxxx' right to receive such payments, if, on any
such anniversary, Reseller does not have the applicable Numbers activated as set
out above, then Xxxxxx would be permitted to terminate the Reseller Agreement on
ten days written notice to Reseller.
7.10 Restrictions on Numbers.
Reseller shall ensure that there is a single unique MIN/ESN or MAN
number combination, as applicable associated with each unit of Equipment.
7.11 Right of First Offer
(1) In the event that Reseller wishes to offer, sell or resell any wireless
communications services, including without limitation cellular/PCS,
paging and data services, to any other person, then it would first
offer Xxxxxx the
opportunity to sell such services to Reseller for resale to such person
on the terms specified in the Agreement or on other terms by notice in
writing clearly specifying such terms.
(2) Xxxxxx agrees to notify Reseller within 15 days of receiving such
notice whether it wishes to provide the services to Reseller on such
terms. If Xxxxxx notifies Reseller that such terms are not acceptable
to Xxxxxx, then during the period commencing on the date of Reseller's
receipt of such notice from Xxxxxx and ending 45 days thereafter, at
Xxxxxx' discretion, Reseller shall be obligated to negotiate in good
faith terms for the provision of the services that are mutually
agreeable.
(3) If, after the end of such 45 day period, the parties are unable to
agree on the terms for the sale by Xxxxxx of such services to Reseller,
then Reseller would be permitted to, but need not, obtain such services
from a third party for purposes of offering, selling or reselling such
services only such services only to such person, provided such services
are obtained on terms no less favourable than the terms on which Xxxxxx
was willing to make such services available to Reseller.
(4) If the services are not obtained from a third party within 90 days from
the end of such thirty day period, then the above provisions would
reapply.
ARTICLE 8
XXXXXX' OBLIGATIONS
8.1 Service.
Xxxxxx agrees to provide the Xxxxxx Services to Reseller in accordance
with the terms and conditions specified in this Agreement. Xxxxxx' obligation to
provide the Xxxxxx Services is conditional upon Xxxxxx' ability to obtain,
retain and maintain, without unreasonable expense, suitable facilities,
equipment, licenses and rights to provide the Xxxxxx Services. Xxxxxx'
obligation to provide the Xxxxxx Services is further conditional upon Reseller's
compliance with the terms and conditions of this Agreement.
8.2 Regulatory Approval.
Xxxxxx will use reasonable commercial efforts to obtain and comply with
all regulatory approvals and licences necessary to provide the Xxxxxx Services.
8.3 Notice of Material Change in Service.
Xxxxxx agrees to use commercially reasonable efforts to provide advance
notice to Reseller of any material changes in the Xxxxxx Services of either a
permanent or temporary nature.
ARTICLE 9
LIMITATION OF LIABILITY/INDEMNITY/INSURANCE
9.1 Limitation of Xxxxxx' Liability.
(1) XXXXXX' TOTAL LIABILITY WITH RESPECT TO ANY AND ALL CLAIMS, REGARDLESS
OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE
AND PRODUCT LIABILITY), STRICT LIABILITY OR
OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR
NON-PERFORMANCE OF ANY OF XXXXXX' OBLIGATION'S UNDER THIS AGREEMENT, OR THE USE
OF THE XXXXXX SERVICES BY OR ON BEHALF OF RESELLER OR ANY END USERS SHALL NOT
EXCEED, WHERE APPLICABLE, RESELLER'S DIRECT DAMAGES, IF ANY, LIMITED SOLELY TO
THE PURCHASE PRICE ALLOCABLE TO SUCH XXXXXX SERVICES AND PAID TO XXXXXX WHICH
GIVES RISE TO THE CLAIM.
(2) NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, XXXXXX, ITS
AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS
AND DEALERS SHALL NOT BE LIABLE TO RESELLER FOR, AND RESELLER FOR
ITSELF AND THE END USERS HEREBY WAIVES THE RIGHT TO
CLAIM ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL COST,
LOSS, EXPENSE, DAMAGES OR LIABILITY OF ANY NATURE (INCLUDING WITHOUT
LIMITATION LOSS OF PROFITS, OR REVENUE, LOSS OF DATA, COST OF CAPITAL,
DOWN TIME COSTS, COSTS OF SUBSTITUTE GOODS OR SERVICES, LOSS OF
BUSINESS OPPORTUNITIES OR LOSS OF PROPERTY) (i) ARISING OUT OF THE
FAILURE OF THE XXXXXX SERVICES TO OPERATE AT ANY TIME OR TIMES, OR (ii)
ARISING OUT OF A THIRD PARTY'S UNAUTHORIZED ACCESS TO DATA OR VOICE
COMMUNICATIONS TRANSMITTED OVER THE XXXXXX FACILITIES OR THE
COMPLETENESS OR ACCURACY OF SUCH DATA OR VOICE COMMUNICATIONS AND
WHETHER OR NOT SUCH DAMAGES WERE FORSEEN OR UNFORSEEN.
(3) NOTWITHSTANDING SECTION 9.1(1), XXXXXX SHALL NOT BE LIABLE TO RESELLER,
ANY END USER, OR ANY OTHER PERSON FOR ANY ACCIDENT OR INJURY CAUSED BY
OR TO A VEHICLE, WATERCRAFT OR AIRCRAFT OWNED OR OPERATED BY AN END
USER, SUCH END USER OR OTHER PERSON IF THE ACCIDENT RESULTED FROM THE
OPERATION OR FAILURE OF EQUIPMENT.
9.2 Limitation of Liability.
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, NEITHER PARTY,
ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND
DEALERS SHALL BE LIABLE TO THE OTHER PARTY FOR ANY DIRECT, INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL COST, LOSS, EXPENSE, DAMAGES OR LIABILITY OF ANY
NATURE (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, OR REVENUE, LOSS OF DATA,
COST OF CAPITAL, DOWN TIME COSTS, COSTS OF SUBSTITUTE GOODS OR SERVICES, LOSS OF
BUSINESS OPPORTUNITIES OR LOSS OF PROPERTY) IN CONNECTION WITH THIS AGREEMENT
WHETHER OR NOT SUCH DAMAGES WERE FORSEEN OR UNFORSEEN.
9.3 Indemnity and Insurance
Reseller agrees to indemnify and hold Xxxxxx harmless against any and
all liabilities, claims, damages, costs or expenses (including legal fees and
expenses) directly or indirectly incurred by Xxxxxx by reason of or arising out
of or relating to claims by End Users or to any acts, duties and obligations or
omissions of Reseller or of any personnel employed by, or agent of, Reseller and
Reseller shall, at the request of Xxxxxx and at Reseller's expense, assume the
defence of any demands, claims, actions, suits or proceedings brought against
Xxxxxx by reason thereof and pay any and all damages assessed against or that
are payable by Xxxxxx as a result of the disposition of any such demands,
claims, actions, suits or proceedings. Notwithstanding the foregoing, Xxxxxx may
be represented in any such demands, claims, actions, suits or proceedings by its
own counsel at the expense of Reseller. No settlement or compromise shall be
agreed to without the concurrence of Xxxxxx.
9.4 Maintenance of Insurance
Reseller shall maintain, in full force and effect, a comprehensive
general liability insurance policy or policies with personal injury liability
blanket, contractual liability and complete operations liability insurance
endorsements protecting Reseller, Xxxxxx, its Affiliates and their respective
directors, officers and employees and representatives against any loss,
liability or expense due to personal injury, death or property damage or
otherwise arising out of or occurring in connection with the business of
Reseller. Xxxxxx shall be named as an additional insured in such policy or
policies which shall be written by a responsible insurance company or companies
licensed to do business in the province in which Reseller conducts its business
and meeting with the reasonable approval of Xxxxxx, with a combined single limit
of not less than Three Million ($3,000,000) Dollars for bodily injury or death
and for property damage. Such policy or policies shall provide that they will
not be cancelled or materially altered without at least sixty (60) days prior
written notice to Xxxxxx. Within ten (10) days after execution of this
Agreement, Reseller shall furnish Xxxxxx with a certificate or certificates of
such insurance, together with evidence that the premiums therefore have been
paid. Maintenance of such insurance and the performance by Reseller of its
obligations under this Section shall not relieve Reseller of liability under the
indemnity provisions hereinabove set forth in Section 9.3.
ARTICLE 10
NO WARRANTY
10.1 No Warranty.
XXXXXX MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE XXXXXX
SERVICES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES AS TO
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR DOES XXXXXX
WARRANT UNINTERRUPTED WORKING OF THE XXXXXX SERVICES OR THE XXXXXX
FACILITIES, AND RESELLER SHALL MAKE NO WARRANTY, WRITTEN OR ORAL, ON
XXXXXX' BEHALF, AND NO EMPLOYEE OR REPRESENTATIVE OF XXXXXX IS
AUTHORIZED TO PERMIT RESELLER TO DO SO.
10.2 Acknowledgement.
Reseller acknowledges that the Xxxxxx Services may be interrupted
because of capacity or equipment limitations, equipment modifications, upgrades,
relocations and repairs and similar activities necessary for the proper
operation of the Xxxxxx Facilities.
ARTICLE 11
TERM AND TERMINATION
11.1 Term.
This Agreement shall be effective commencing on the date indicated on
the first page of this Agreement and shall remain in force for a period of three
(3) years. In the event this Agreement expires, and the parties do not enter
into a new agreement governing the subject matter hereof and Xxxxxx continues to
provide the Xxxxxx Services to Reseller, this Agreement shall be deemed to
continue on a month-to-month basis until one party, upon thirty (30) days
written notice to the other, terminates this Agreement.
11.2 Termination by Xxxxxx.
(1) Xxxxxx may, immediately upon written notice, terminate this
Agreement if:
(a) Reseller fails to pay any amount owed to Xxxxxx when due
and
such failure is not cured within five (5) days after
written notice of such failure is given to Reseller by
Xxxxxx;
(b) Reseller fails to provide or maintain deposit or letter of
credit when required to do so pursuant to this Agreement
and such failure is not cured within ten (10) days of
written notice thereof;
(c) Reseller fails to abide by the terms and conditions of this
Agreement or any other agreement with Xxxxxx and such
failure is not cured within ten (10) days of written notice
thereof;
(d) Reseller fails to meet its sales commitment in any calendar
year as set out in Section 7.9.
(e) Reseller provides false or misleading information to Xxxxxx
in connection with any application for the Xxxxxx Services;
(f) Reseller uses or permits an End User o other person to use
the Xxxxxx Services or the Xxxxxx Facilities in a manner
that adversely affects Xxxxxx' operations or the use of the
Xxxxxx Services by other customers;
(g) Reseller initiates proceedings for its winding up,
liquidation or dissolution, or takes action to become a
voluntary bankrupt, or consents to the filing of bankruptcy
proceedings against it or files a petition or answer or
consent seeking reorganization, readjustment, arrangement,
composition or similar relief under any bankruptcy law or
consents to the filing of such petition or consents to the
appointment of a receiver, liquidator, trustee or assignee
in bankruptcy or insolvency or makes an assignment for the
benefit of creditors, or admits in writing its inability to
pay its debts generally as they become due or commits any
other act of bankruptcy, or suspends transaction of its
usual business, or any action is taken against Reseller by
a third party in furtherance of any of the foregoing and
such action by a third party is not dismissed within thirty
(30) days;
(h) a material part of the assets used in the operation of
Reseller's
wireless resale business are sold or conveyed to a wireless
carrier, reseller or dealer without the prior written
consent of Xxxxxx;
(i) Reseller agrees to assign, purports to assign or is deemed
to have assigned this Agreement or if an assignment occurs
by operation of law, without the prior written consent of
Xxxxxx;
(j) a wireless carrier, reseller or dealer acquires control of
Reseller without the prior written consent of Xxxxxx; (k)
Reseller commits or participates in an fraudulent or
improper actions in the course of acting as a reseller of
the Xxxxxx Service including, without limitation, the
intentional submission to Xxxxxx of any false or fraudulent
claims for refund, credit, rebate, allowance, discount or
other payment;
(l) the conviction in any court of competent jurisdiction of
Reseller, key shareholders, director or officer of Reseller
for any crime or violation of law if, in the opinion of
Xxxxxx, such conviction is likely to adversely affect the
operations or business of Reseller or tend to be harmful to
the goodwill or reputation of Xxxxxx or the Xxxxxx
Facilities; or
(m) any conduct or practice by Reseller, its directors,
officers, employees or key shareholders not already
enumerated above is in the reasonable opinion of Xxxxxx
injurious to the goodwill or reputation of Xxxxxx or the
Xxxxxx Facilities.
(2) The termination of this Agreement or suspension of the
Xxxxxx Service in whole or part does not affect Reseller's
obligation to pay any amount owing to Xxxxxx.
11.3 Termination by Reseller.
Reseller may, immediately upon written notice, terminate this Agreement
if:
(a) Xxxxxx fails to abide by the terms and conditions of this
Agreement and such default is not cured within ten (10)
days of written notice thereof; or
(b) Xxxxxx initiates proceedings for its winding up liquidation
or dissolution, or takes action to become a voluntary
bankrupt, or consents to the filing of bankruptcy
proceedings against it or files a petition or answer or
consent seeking reorganization, readjustment, arrangement,
composition or similar relief under any bankruptcy law or
consents to the filing of such petition or consents to the
appointment of a receiver, liquidator, trustee or assignee
in bankruptcy or insolvency or makes an assignment for the
benefit of creditors, or admits in writing its inability to
pay its debts generally as they become due or commits any
other act of bankruptcy, or suspends transaction of its
usual business, or any action is taken against Xxxxxx by a
third party in furtherance of any of the foregoing and such
action by a third party is not dismissed within thirty (30)
days.
11.4 Use of Information Upon Termination.
If this Agreement expires or is terminated by Xxxxxx pursuant to
Section 11.2, Xxxxxx may use any information in its possession regarding
Reseller or the End Users in any manner whatsoever, so as to retain the End
Users as users of the Xxxxxx Facilities, and without limiting the generality of
the foregoing, may contact End Users directly.
11.5 Continuing Obligations
Termination pursuant to the terms of this Agreement, regardless of
cause or nature, shall be without prejudice to any other rights or remedies of
the parties, and Reseller shall remain solely responsible for its obligations to
the End Users. The termination of this Agreement with or without cause shall not
release either party hereto from any liability which at the time of termination
has already accrued to the other party or which thereafter may accrue with
respect to any act or omission prior to termination, or from any obligation
which is expressly stated herein to survive termination. Xxxxxx may, without
liability, cancel any previously accepted orders for Numbers which have not been
assigned to End Users on or before the date of termination.
11.6 No Obligation for Continuing Service to End Users
Upon termination, Xxxxxx shall have no further obligation to provide
the Xxxxxx Services to Reseller. However, in order to avoid disruption of the
Xxxxxx Services to End Users, Xxxxxx may, in its discretion, continue the Xxxxxx
Services directly to any End User who meets Xxxxxx' credit requirements and
enters into a contract for the Xxxxxx Services with Xxxxxx. Such continuation of
the Xxxxxx Services shall not entitle Reseller to any compensation. Upon
termination, Xxxxxx may re-route calls using any Numbers previously assigned to
Reseller so that any attempts to access the Xxxxxx Services will result in
connection to Xxxxxx, which will advise callers how they may obtain the Xxxxxx
Services directly from Xxxxxx.
ARTICLE 12
RIGHT OF FIRST REFUSAL
12.1 Right of First Refusal
(1) Reseller agrees that it will not transfer (i) the wireless
communications business of Reseller operated in accordance with this
Agreement, (ii) the customer lists or End User service accounts, or a
significant portion of the assets of Reseller used in connection with
such business, or (iii) control (as such term is defined in the
Business Corporations Act (Ontario)) of a permitted assignee of this
Agreement without first complying with this Section 12.1.
(2) In the event that Reseller receives a bona fide cash offer in writing from
an arm's-length purchaser to purchase (i) the wireless communications business
of Reseller operated in accordance with this Agreement or all or a significant
portion of the assets of Reseller, (ii) the customer lists or End User service
accounts, or a significant portion of the assets of Reseller used in connection
with such business, or (iii) a controlling interest in the shares of a permitted
assignee of this Agreement (an "Offer"), which Offer Reseller is prepared to
accept, Reseller shall first offer to Xxxxxx the opportunity to purchase the
said business, assets or securities for the same cash consideration as is
contained in the Offer.
(3) If Xxxxxx elects to purchase the business, assets or securities, as the case
may be, such purchase and sale shall be completed on the terms and conditions
contained in the Offer. In the event that Xxxxxx fails to advise Reseller in
writing within thirty (30) days following such Offer that it agrees to purchase
the said business, assets or securities on the same terms and conditions as are
contained in the Offer, then Reseller may complete the sale under the Offer upon
the terms and conditions contained in the Offer during a period of ninety (90)
days following the lapse of such thirty (30) day period.
(4) If Reseller completes the sale under the Offer to such third party as
provided above, Reseller may assign its rights and obligations under this
Agreement to such third party with Xxxxxx' prior written consent, which shall
not be unreasonably withheld or delayed by Xxxxxx. Without limiting the
generality of the foregoing, Xxxxxx may withhold its consent to any such
assignment if the third party purchaser:
(a) has not agreed in writing to be subject to all of the terms and
conditions of this Agreement, mutatis mutandis, including this
Section 12.1,as if said purchaser had executed this Agreement and
such other conditions as Xxxxxx may reasonably require;
(b) has not provided such financial information as Xxxxxx may
reasonably require, together with a letter of credit or security
deposit in an amount that Xxxxxx determines, in its discretion
acting reasonably, is necessary to secure such third party's
present and future obligations under this Agreement; or
(c) is a reseller, dealer or is a carrier of wireless communications
products or services.
(5) If such sale pursuant to the Offer is not completed within the ninety (90)
day period specified above, the right of Reseller to sell its business, assets
or securities hereunder pursuant to the Offer shall be terminated and this
Section shall again apply to any such proposed sale of such business or assets,
and so on from time to time.
12.2 Extension of Right of First Refusal.
Section 12.1 hereof shall survive the termination of this Agreement by
a period of one hundred and twenty (120) days.
ARTICLE 13
TRADE NAME AND TRADEMARK
13.1 Xxxxxx' Rights.
Reseller recognizes the right, title and interest of Xxxxxx and its
Affiliates through ownership or licence in and to all service marks, trademarks
and trade names used by Xxxxxx in connection with the Xxxxxx Services (the
"Marks"). Reseller agrees not to engage in any activities or commit any acts,
directly or indirectly, which may contest, dispute, or otherwise impair such
right, title and interest of Xxxxxx and its Affiliates therein. Reseller has no
rights to the Marks, shall not use the Marks and shall not refer to "Xxxxxx" or
"AT&T" in connection with the Xxxxxx Service, without the express prior written
consent of Xxxxxx. Reseller shall not acquire or claim any right, title or
interest in or to the Marks through the resale of the Xxxxxx Services or
otherwise. Reseller is specifically prohibited from incorporating any of the
Marks into its own service marks, trademarks and trade names or from using any
service xxxx, trademark or trade name which is confusingly similar to any of the
Marks.
13.2 Equipment Branding.
Without limiting the generality of Section 13, Reseller agrees that it
shall, at its sole cost and expense, remove the Marks, including the "Xxxxxx
AT&T" label, from all Equipment sold to End Users and arrange for the
re-programming of all Equipment to remove references to the Marks.
ARTICLE 14
CONFIDENTIALITY
14.1 Confidential Information.
(1) Each party agrees that any and all information, written or oral, which is
proprietary or confidential in nature and which is disclosed by a party to the
other party concerning the business
or affairs of the receiving party, shall be treated as confidential and that
such information shall not be disclosed during the term of this Agreement or at
any time thereafter, directly or indirectly, to any other person, firm or
corporation without the prior written consent of the disclosing party.
Notwithstanding the foregoing, nothing in this section shall preclude the
receiving party from disclosing or using confidential information if it can
demonstrate that the information:
(a) is publicly available prior to the date of this Agreement;
(b) becomes publicly available after the date of this Agreement
through no wrongful act of the receiving party;
(c) is furnished to others by the disclosing party without similar
restrictions on their right to use or disclose;
(d) is rightfully known by the receiving party without any proprietary
restrictions at the time of receipt of such information from the
disclosing party or becomes rightfully known to the receiving
party without proprietary restrictions from a source other than
the disclosing party;
(e) is independently developed by the receiving party by persons who
did not have access, directly or indirectly, to the information;
or
(f) is obligated to be produced under order of a court of competent
jurisdiction or a valid administrative or congressional subpoena,
provided that the receiving party promptly notifies the disclosing
party of such event so that the disclosing party may seek an
appropriate protective order.
(2) Nothing in this Section 14.1 shall prohibit Rogers from disclosing
any information concerning End Users to:
(a) another telecommunications carrier or other person providing
services to a telecommunications carrier, provided the information
is to be used for the establishment of, or the efficient and cost
effective provision of services to the End User or Reseller and
disclosure is made on a confidential basis with the information to
be used solely for that purpose;
(b) an agent retained by Rogers to collect outstanding balances owed
to Rogers by Reseller, or to perform other administrative
functions for Rogers, provided that the information is released
solely for those purposes; or
(c) to a law enforcement agency whenever Rogers has reasonable grounds
to believe that Reseller or an End User has knowingly supplied
Rogers with false or misleading information or Reseller or an End
User is otherwise involved in unlawful activities.
14.2 Remedy for Breach
Each receiving party acknowledges that damages would not be an adequate
remedy for any breach of this Agreement by the receiving party or its
Representatives and that the disclosing party may obtain injunctive or other
equitable relief to remedy or prevent any breach or threatened breach of this
Agreement by the receiving party or any of its Representatives. Such remedy
shall not be deemed to be the exclusive remedy for any such breach of this
Agreement, but shall be in addition to all other remedies available at law or in
equity to the disclosing party.
ARTICLE 15
RESTRICTIONS
15.1 Restriction on Bundling.
Reseller agrees not to Bundle the Rogers Services with a product or
service that is:
(a) the same or similar to any wireless communications product or
service that is offered by Rogers;
(b) a broadcast distribution product or service including, without
limitation, direct to home satellite service, multi-channel,
multi-point distribution service, or any other cable distribution
service; or
(c) a high speed internet access service.
15.2 Non-Solicitation.
Rogers and Reseller acknowledge and agree that the primary purpose of
this Agreement is to expand the cellular marketplace. Reseller accordingly
agrees that it will not knowingly directly solicit existing customers of Rogers
for the purpose of selling the Rogers Services to such customers. Similarly,
Reseller agrees that it shall not solicit or appoint the dealers, agents or
other distributors and sales representatives of Rogers as representatives of
Reseller for the purpose of selling the Rogers Services to prospective End
Users.
ARTICLE 16
GENERAL
16.1 Relationship of Parties.
Nothing in this Agreement shall be construed as in any way placing
either party in the position of an agent of the other party and neither party
shall have the power to bind the other party or to contract in the name of or
create a liability against the other party in any way for any purpose. Neither
party shall be responsible for the acts or defaults of the other party or any of
the other party's employees or agents. This Agreement does not create a
partnership or joint venture between the parties. The relationship of the
parties is that of independent contractors.
16.2 Notices.
Any notice, waiver or other document or communications required or
permitted to be given to any party under this Agreement shall be validly given
only if in writing and if delivered personally or by over-night courier or if
telecopied to that party at the following address:
To Rogers: Xxxxxx Wireless Inc.
Xxx Xxxxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Telecopier No.: (000) 000-0000
Attention: General Manager, Resale
with a copy sent to: Xxxxxx Wireless Inc.
Xxx Xxxxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Telecopier No.: (416) 935-762
Attention: Legal Department
To Reseller: Innofone Canada Inc._________________________
Suite 4 - 241 Applewoood Crescent______________
Xxxxxxx, Xxxxxxx X0X 4E6____________________
Telecopier No.: (000) 000-0000_________________
Attention: Xxxxx Xxxx, CEO
Any such notice delivered or telecopied as aforesaid shall be deemed to
have been given or made on the date on which it was telecopied or, if delivered,
on the day following delivery, as the case may be. Any party may at any time
give notice in writing to the other party of any change of address of the party
giving such notice and from and after the giving of such notice the address
therein specified shall be deemed to be the address of such party for the giving
of notice hereunder.
16.3 Force Majeure
Rogers shall promptly notify Reseller in writing of any situation or
event arising from circumstances beyond its control and which it could not
reasonably foresee which prevent Rogers from carrying out in whole or in part
its obligations under this Agreement. Upon the occurrence of such a situation or
event the Rogers Services shall be deemed to be postponed for a period of time
equal to that caused by the force majeure event and a reasonable period to
remobilize for the continuation of the Rogers Services.
16.4 Further Assurances.
The parties agree to do all such things and to execute such further
documents as may reasonably be required to give full effect to this Agreement.
16.5 Waiver.
No provision of this Agreement shall be deemed waived by a course of
conduct unless such waiver is in writing signed by all parties and stating
specifically that it was intended to modify this Agreement.
16.6 Successors and Assigns
This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. Neither this
Agreement, nor any of the rights or obligations of the parties hereunder may be
assigned by Reseller without the prior written consent of Rogers. Any request
for assignment shall be accompanied with reasonably detailed terms of the
proposed assignment (including copies of relevant proposed agreements) and such
financial information pertaining to the proposed assignee and, if applicable,
the shareholders thereof, as Rogers may request. This Agreement shall be deemed
to be assigned by Reseller in the event of a change, directly or indirectly, in
the ultimate effective control of Reseller from those persons having such
control at the date hereof, but no such assignment shall relieve Reseller of
their covenant hereunder.
16.7 Severability
If any term or provision of this Agreement shall to any extent be found
to be invalid, void or unenforceable, the remaining terms and provisions shall
nevertheless continue in full force and effect.
16.8 Time.
Time shall be of the essence hereof.
16.9 Governing Law
This Agreement shall be construed and enforced in accordance with the
laws of the Province of Ontario and the parties hereto irrevocably attorn to the
exclusive jurisdiction of the courts of such Province. This Agreement and the
parties' obligations hereunder, are also subject to any orders, rules and
regulations issued by any regulatory authority having jurisdiction over the
Rogers Service.
16.10 Execution in Counterparts.
This Agreement may be executed in one or more counterparts, each of
which so executed shall constitute an original and all of which together shall
constitute one and the same agreement.
16.11 Survival.
The terms of Sections 5.1, 5.2, 5.5, 5.6, 11.4, 11.5, 11.6, 12.1, and
12.2 and Articles 9, 10, 13 and 14 shall survive any termination or expiry of
this Agreement and shall continue in force thereafter for the period
contemplated by the Agreement or indefinitely if no such period is specified.
Other provisions of this Agreement which, by the nature of the rights or
obligations set out therein, might reasonably be expected to be intended to so
survive, shall survive termination or expiry of this Agreement until they are
satisfied or by their nature expire.
16.12 Entire Agreement
This Agreement, including the schedules hereto, constitutes the entire
agreement of the parties relating to the subject matter hereof and supersedes
all prior agreements, understandings, negotiations, memoranda, correspondence
and discussions, whether written or oral, relative to the subject matter hereof.
Except as otherwise specifically set forth in this Agreement, neither party
makes any representation, warranty or condition express or implied, collateral,
or otherwise to the other.
16.13 Amending the Agreement
This agreement may not, except as provided herein, be amended or
modified except by a written instrument executed by both parties, provided
however that Rogers shall have the right upon thirty (30) days written notice to
the Reseller to amend any or all of the Schedules hereto in any respect.
16.14 Review by Counsel
The parties acknowledge that their respective legal counsel have
reviewed and participated in settling the terms of this Agreement, and that any
rule of construction to the effect that any ambiguity is to be resolved against
the drafting party shall not be applicable in the interpretation of this
Agreement.
ARTICLE 17
INDEPENDENT INVESTIGATION
RESELLER ACKNOWLEDGES IT HAS READ THIS AGREEMENT AND UNDERSTANDS AND
ACCEPTS THE TERMS, CONDITIONS AND COVENANTS CONTAINED HEREIN AS BEING REASONABLY
NECESSARY TO MAINTAIN ROGERS' HIGH STANDARDS FOR THE ROGERS SERVICES. RESELLER
ACKNOWLEDGES AND UNDERSTANDS THAT ROGERS MAY AT ANY TIME ALSO BE ENGAGED
DIRECTLY OR INDIRECTLY THROUGH OTHER DEALERS, OR OUTLETS OF ANY KIND, IN
SOLICITING POTENTIAL CUSTOMERS FOR THE ROGERS SERVICES. RESELLER ALSO
ACKNOWLEDGES AND UNDERSTANDS THAT ROGERS MAY SELL THE ROGERS SERVICES TO OTHERS
WHO MAY RESELL IT. RESELLER HAS INDEPENDENTLY
INVESTIGATED THE ROGERS SERVICES OR EQUIPMENT AND THE PROFITABILITY (IF
ANY) AND RISKS THEREOF AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR
STATEMENT OF ROGERS OTHER THAN AS SET FORTH IN THIS AGREEMENT.
IN PARTICULAR, RESELLER ACKNOWLEDGES THAT ROGERS HAS NOT REPRESENTED:
(a) RESELLER'S PROSPECTS OR CHANCES FOR SUCCESS SELLING THE ROGERS SERVICES
UNDER THIS AGREEMENT; (b) THE TOTAL INVESTMENT THAT RESELLER MAY NEED TO MAKE TO
OPERATE UNDER THIS AGREEMENT (ROGERS DOES NOT KNOW THE AMOUNT OF THE TOTAL
INVESTMENT THAT MAY BE REQUIRED FOR THIS PURPOSE); OR (c) THAT ROGERS WILL LIMIT
ITS EFFORTS TO SELL THE ROGERS SERVICES OR ESTABLISH OTHER RESELLERS.
RESELLER ALSO ACKNOWLEDGES THAT ROGERS HAS NOT REPRESENTED TO IT THAT:
(a) ROGERS WILL PROVIDE LOCATIONS OR ASSIST RESELLER TO FIND LOCATIONS TO
PROMOTE THE SALE OF THE ROGERS SERVICE UNDER THIS AGREEMENT; (b) ROGERS WILL
PURCHASE ANY PRODUCTS MADE BY RESELLER THAT ARE IN ANY WAY ASSOCIATED WITH THE
ROGERS SERVICES SOLD BY RESELLER UNDER THIS AGREEMENT; (c) RESELLER WILL DERIVE
INCOME FROM THE SALE OF THE ROGERS SERVICE XXXXXX THIS AGREEMENT, OR ROGERS WILL
REFUND ANY PAYMENTS MADE BY RESELLER TO ROGERS UNDER THIS AGREEMENT; OR (d)
ROGERS WILL PROVIDE A SALES OR MARKETING PROGRAM THAT WILL ENABLE RESELLER TO
DERIVE INCOME UNDER THIS AGREEMENT.
RESELLER FURTHER ACKNOWLEDGES THAT ROGERS HAS NOT MADE ANY
REPRESENTATIONS REGARDING: (a) THE QUANTITY OR QUALITY OF THE ROGERS SERVICES TO
BE SOLD BY RESELLER; (b) THE PROVISION BY ROGERS TO RESELLER OF TRAINING AND
MANAGEMENT ASSISTANCE; (c) THE AMOUNT OF PROFITS, NET OR GROSS, THAT RESELLER
CAN EXPECT FROM ITS OPERATIONS UNDER THIS AGREEMENT; (d) THE SIZE, CHOICE,
POTENTIAL, OR DEMOGRAPHIC NATURE OF THE AREA IN WHICH THE ROGERS SERVICES IS
AVAILABLE OR THE NUMBER OF THE AREAS IN WHICH THE ROGERS SERVICE IS AVAILABLE OR
THE NUMBER OF OTHER DEALERS OR RESELLERS THAT ARE OR MAY IN THE FUTURE OPERATE
IN THAT AREA; OR (e) THE TERMINATION, TRANSFER, OR RENEWAL PROVISIONS OF THIS
AGREEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. RESELLER ACKNOWLEDGES THAT
IT UNDERSTANDS THAT IT WILL NOT OBTAIN ANY EXCLUSIVE RIGHTS UNDER THIS
AGREEMENT, EITHER WITH RESPECT TO A TERRITORY OR OTHERWISE, AND UNDERSTANDS THAT
ROGERS MAY APPOINT
OTHER DEALERS OR RESELLERS IN ANY AREA. RESELLER ALSO ACKNOWLEDGES THAT ROGERS
CANNOT CALCULATE IN ADVANCE THE TOTAL AMOUNT THAT RESELLER MUST PAY TO ROGERS
UNDER THIS AGREEMENT AS THAT AMOUNT DEPENDS ON THE QUANTITY OF THE ROGERS
SERVICES THAT THE END USERS PURCHASE.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INNOFONE CANADA INC. XXXXXX WIRELESS INC.
Per: Per:
------------------------------ ------------------------------
By: Xxxxx Xxxx By: Xxxxxx X. Xxxxxx
Title: CEO Title: V.P. National Sales
Per: Per:
------------------------------ ------------------------------
By: By: X. Xxxxxx
Title: Title: SRN V.P. & CFO
SCHEDULE "A"
PRICING
The pricing at which Rogers agrees to sell the Rogers Services to
Reseller shall be determined based on the following principles:
(a) No less than once during each period of six months during the term
of the Agreement, Rogers and Reseller shall select a separate rate
plan from both (i) Rogers' retail pricing rate card and (ii) the
retail pricing rate cards of no more than three of Rogers'
competitors that will be applicable for use by VISA Customers. At
such times, Rogers and Reseller shall also agree on any specific
rules that would govern the comparison of such selected rate plans
for purposes of determining the Best Price Amount (as defined
below). Such rules would address, without limitation, matters
relating to special promotions with respect to such plans, unusual
pricing features (for example, Fido's present caller
identification charge) and the use of analogue services on certain
rate plans. Rogers will not, at any time, agree to select any rate
plan that would require Rogers to sell the cellular services to
Reseller (as described in (c) below) at a rate that is less than
the rate that Rogers generally makes available to its resellers in
accordance with its then applicable reseller rate card. If Rogers
and Reseller are unable to agree on the applicable retail pricing
rate cards, either party shall be entitled to terminate the
agreement on 30 days notice.
(b) Reseller agrees to charge each of its customers for such
customer's actual use of the Rogers Services during any monthly
billing period (i) the applicable airtime and monthly service fees
for such use based on the lowest rate from such selected rate
plans having regard to such customer's actual use of the cellular
services during such billing period and the rules described in (a)
above (the "Best Price Amount"), plus (ii) an amount determined by
Reseller with respect to all other charges for call features, long
distance, roaming, and voicemail and other optional services, less
(iii) any additional discount offered by Reseller.
(c) Reseller agrees to pay to Rogers on a monthly basis with respect
to each VISA Customer, an amount equal to the product of (i)
79.09%, and (ii) the Best Price Amount with respect to such
customer for the previous monthly billing period.
Reseller shall also pay Rogers for all other charges for call
features, long distance, roaming, and voicemail and other optional
services based on Rogers' reseller rate card as it exists from
time to time. Initially, such rates shall be as set out below.
(d) Without limiting section (a) above, it shall be assumed that at
least 25% of a customers use of the Rogers Services will be
analogue for purposes of calculating the rate with respect to any
selected Fido rate plan.
(e) The initial rate (which may be changed by Xxxxx upon notice to
Reseller) for the optional features referred to in (c) above shall
be as follows:
-------------------------------------------------------------------------------------------------------------
Optional Services Rate
-------------------------------------------------------------------------------------------------------------
Enhanced Voicemail $3/month
-------------------------------------------------------------------------------------------------------------
Text Messaging $2.50/month
-------------------------------------------------------------------------------------------------------------
E-mail Messaging $2.50/month
-------------------------------------------------------------------------------------------------------------
Combined Enhanced Voicemail, Text Messaging, E- $5.50/month
mail Messaging
-------------------------------------------------------------------------------------------------------------
Long Distance within Canada and to the U.S. $0.15/minute
-------------------------------------------------------------------------------------------------------------
Long Distance from within U.S. and to Canada $0.75/minute airtime + U.S. Telco long distance
pass through charges
-------------------------------------------------------------------------------------------------------------
Caller ID No charge
-------------------------------------------------------------------------------------------------------------
Per Second Billing No charge (note: per second billing after 1st minute)
-------------------------------------------------------------------------------------------------------------
Call Transfer & Conference Calling No charge
-------------------------------------------------------------------------------------------------------------
Activation Fee No charge
-------------------------------------------------------------------------------------------------------------
Call Forwarding No charge up to 1000 minutes thereafter $0.10 per
minute
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
Service Charges Rate - Per Transaction
-------------------------------------------------------------------------------------------------------------
$5
Telephone Number Change
-------------------------------------------------------------------------------------------------------------
Adding/Deleting Optional Services After Initial $5
Activation
-------------------------------------------------------------------------------------------------------------
Deactivating Account No Charge - Subject to Early Cancellation Fee of
$20 per month remaining in the one-year term to a
maximum $200
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
SCHEDULE "B"
BILLING INFORMATION
1. (a) Access, optional feature, monthly service charges and other
recurring charges are billed in advance based on actuals as of
the billing date. Some features are billed in arrears. All
recurring charges are prorated for the portion of the month that
the phone has been in use.
(b) Airtime usage is billed in arrears for the billing period.
2. The billing date for Reseller may be established by Rogers at its
discretion.
3. Rogers shall provide call detail records for each Mobile Identification
Number (MIN) activated for Reseller within five (5) business days of
the xxxx close date. Initially, Rogers shall provide the call detail
records electronically using FTP protocol. Eventually a system will be
established to transmit the results from Rogers to Reseller
electronically by means of a telecommunication data link. At that time,
magnetic tape records will become the default method of record transfer
and will continue to be available. A separate charge may be levied for
the telecommunication data line.
4. The call detail record for each Number shall include:
(i) the number, location, rate period
(ii) all optional usage charges;
(iii) all toll charges, identifying number called, time and date of
call and length of call;
(iv) international roaming charges; and (v) any miscellaneous
charges.
5. Any changes to Rogers' standard billing format or processes required by
Reseller shall be at Reseller's cost. These changes will be considered
by Rogers and will be developed at Reseller's costs at Rogers' sole
discretion.
6. Timing of Calls
(a) Usage rate apply for completed calls originated or received on
each Mobile Identification Number (MIN):
(i) Chargeable time for a completed call originated from a
MIN begins when a connection to the Rogers facilities is
established, which is when the "SEND" button is pressed,
and ends when the Cellular Equipment unit disconnects
from the system, which is shortly after the "END" button
is pressed or the cellular call is otherwise
disconnected.
(ii) Chargeable time for a completed call received by a MIN
begins when connection is made with provider's equipment,
and ends when the cellular equipment unit disconnects
from the Cellular System.
(iii) Chargeable time is also incurred for use of enhanced
services such as Call Waiting, Conference Call and
automatic call delivery for each call which is set up.
(iv) There is a flat fee as outlined in Schedule "A" for Call
Forwarding, No Answer Transfers and Busy Transfers.
(b) The minimum usage charge for each call is one minute and the
airtime charges are billed in full minute increments. For
example, a one minute 20 second call will be billed as two
minutes.
(c) When a connection is established in one time period and ends in
another, the rate in effect for each period applies to that
portion of the connection occurring within each period.
7. Timing Periods for Usage Charges
(a) Usage rates apply based on the time of day and day of week.
(b) Calls made on statutory holidays will be rated at the normal
rate applicable for that day of the week.
(c) Refer to Schedule A for a schedule of Time Periods for Usage
Rates.
8. Discounts
Discounts may be applied to access and/or usage charges as set forth in
Schedule "A".
9. Landline Charges
(a) Rogers shall charge back to Reseller any third party charges or
operator assisted calls charged to the cellular number. These
calls cannot be restricted at this time. Electronic billing for
these calls cannot be provided, however a paper addendum is
provided in support of the charges.
(b) An additional charge per call shall apply for directory
assistance and directly assisted call completion. These charges
are levied separately and provided with the Rogers invoice.
(c) Any services provided by information providers (such as 900 NPA
or 976 NXX
services) will be barred as it cannot be charged back to the end
customer.
(d) Usage rates do not apply on calls placed to the 911 emergency
service operator. Rogers will route these calls in the same
manner as our retail service.
(e) Any future compensation payable to local landline companies
resulting from regulatory decisions will be passed through to
Reseller.
10. Cellular Long Distance Charges
(a) Reseller shall be charged cellular long distanc charges as set
forth in this section. Charges are in addition to usual airtime
rates set forth in Schedule "A". Cellular long distance rates
are Rogers' standard retail rates. A discount on domestic long
distance will be applied as per Schedule "A".
(b) Charges apply to cellular long distance calls initiated from
within and applicable cellular local calling area to points
outside that area and are in addition to local airtime rate. A
long distance call is rated at time of originating VH
co-ordinates to the end VH co-ordinates. A long distance call
made while being mobile is rated from its point of inception. A
long distance call crossing over to another rate period will be
prorated based on the portion of the call in each rate period.
11. Call Following and Roaming
(a) CALL FOLLOWING is the network capability for Reseller's
customers to automatically make calls, receive calls, or
activate network features anywhere in Canada. Reseller's
customers do not have to notify their callers of their location
or have callers use special access codes. Reseller is charged
Rogers' long distance rates for incoming calls when travelling
away from their home area in the network. The roam number for
that location can be used to avoid the long distance charges on
the incoming call.
(b) Reseller's customers will be able to use their cellular
telephone in all major markets in the United States where Rogers
has roaming agreements between carriers. In some U.S. markets
where CALL FOLLOWING is not available, the roamer will receive
incoming calls if the caller uses a special roaming access code
in addition to the roamer's cellular telephone number. Roaming
charges are the applicable roaming rates of the local cellular
network operator. Roaming rates vary from carrier to carrier and
may include a daily set up fee and a per minute airtime rate,
miscellaneous charges, plus applicable long distance charges.
Foreign and Canadian taxes may also apply. All roaming charges
will be billed at retail rates to Reseller.
12. Rogers will provide an invoice to Reseller consisting of all applicable
charges as outlined above in points 1 through 11, monthly service
charges and taxes. The standard invoice
format will be an electronic (soft) copy.
SCHEDULE "C"
RESELLER OPERATIONS MANUAL
See attached.
SCHEDULE "D"
RESELLER SUPPLY TERMS
ARTICLE 1
2. PURCHASE AND SALE OF EQUIPMENT
1.1 Equipment Available for Purchase.
Rogers agrees to make available for sale to Reseller Equipment in
accordance with Section 6.2 of the main body of the Agreement.
1.2 Purchased Equipment.
Subject to the terms and conditions hereof, Reseller may purchase
Equipment from time to time in accordance with the procedures set out in Article
2 of this Schedule (the "Purchased Equipment"). Reseller acknowledges that
availability of the Purchased Equipment is dependent on the manufacturer thereof
and Rogers is not responsible for ensuring that any Equipment desired to be
purchased by Reseller is available.
1.3 Additional Purchase Terms.
All Purchased Equipment shall be for the sole purpose of resale by
Reseller to customers for use in connection with the Xxxxxx Services. The
purchase and sale of Equipment hereunder shall also be subject to such other
rules, procedures, policies and guidelines established by Xxxxxx from time to
time and provided to Reseller ("Purchasing Procedures").
1.4. Non-Exclusivity.
Reseller hereby acknowledges that the rights granted to it pursuant to
this Agreement are non- exclusive and that Xxxxxx reserves the right to enter
into the same or similar agreements with other dealers and resellers, both third
party and those affiliated with Xxxxxx, in relation to the same or similar
Equipment. Xxxxxx further reserves the right to solicit orders and sell the
Equipment directly to end users pursuant to terms and conditions determined by
Xxxxxx at its sole discretion.
ARTICLE 2
ORDERS AND PROCESSING
1.1 Forecasts
On or before the tenth day of each calendar month during the term of
this Agreement, Reseller shall provide to Xxxxxx a written forecast (a
"Forecast") in a manner acceptable to Xxxxxx, indicating the number of units of
Equipment that Reseller anticipates it will purchase form Xxxxxx during the next
calendar month. Provided that such Forecasts are made by such dates and without
limiting Section 1.2 of this Schedule, Xxxxxx will use commercially reasonable
efforts to make such Equipment available for purchase by Reseller.
2.2 Placement of Orders.
Reseller shall submit all orders for Purchased Equipment directly to
Xxxxx, Xxxxxx' fulfilment agent on an authorized purchase order form or other
confirmation of purchase approved by Xxxxxx (each, a "Purchase Order") or in
such other manner that is acceptable to Xxxxxx and Xxxxx. No Purchase Order may
be modified without Xxxxxx' express written approval. The parties hereto agree
that the terms and conditions of this Agreement shall supersede and take
precedence over any inconsistent terms or conditions appearing on a Purchase
Order. All Purchase Orders shall be made by Reseller in accordance with the then
current Purchasing Procedures.
2.3 Acceptance by Xxxxxx.
A Purchase Order will be considered accepted by Xxxxxx when the
Purchased Equipment is delivered by Xxxxxx in accordance herewith or when
acceptance of the Purchase Order is given to the Reseller by Xxxxxx in writing.
Xxxxxx reserves the right to accept or reject any Purchase Order at its sole
discretion and subject to availability and no Purchase Order will be effective
unless and until so accepted by Xxxxxx.
ARTICLE 3
PAYMENT TERMS
2.1 Purchases Invoiced.
The Purchased Equipment shall be invoiced to Reseller weekly in arrears
at prices described in Section 6.2 of the main body of the Agreement. In
addition, Reseller agrees to pay to Xxxxxx a stocking fee in respect of each
month in an amount equal to the product of $5.00 multiplied by the greater of
(i) the number of units of Equipment actually purchased by Reseller from Xxxxxx
in such month, and (ii) the number of units of Equipment set out in the Forecast
for such month; provided that if, during any month, Xxxxxx is unable to deliver
any Equipment specified in the Forecast for such month such stocking fee shall
be in an amount equal to the product of $5.00 multiplied by the number of Units
of Equipment actually purchased by Reseller from Xxxxxx in such month.
2.2 Payment Due.
All payments for Purchased Equipment shall be due within ten (10) days
of the date of the invoice therefor.
2.3 Overdue Accounts.
All amounts which are not paid when due shall accrue and shall be
subject to the payment of interest at the rate of one and one-half (1.5%)
percent, compounded monthly (19.56% per annum). Xxxxxx reserves the right to
withhold delivery of any Purchased Equipment if Reseller has failed to meet any
of its payment obligations hereunder.
ARTICLE 4
DELIVERY
3.1 Delivery of Equipment.
Delivery of the Purchased Equipment shall be F.O.B. manufacturer's
warehouse or Xxxxxx' fulfilment agent, as indicated to Reseller by Xxxxxx. All
freight charges incidental to delivery shall be paid by Xxxxxx.
4.2 Delays in Delivery.
Xxxxxx shall not be liable for any failure to fill, or delay in
filling, Purchase Orders received from Reseller and accepted by Xxxxxx, for any
reason whatsoever, including but not limited to, force majeure. Xxxxxx will use
reasonable commercial efforts to notify Reseller of any delays or inability to
deliver the Purchased Equipment; however, if any conditions arise which prevent
compliance with delivery schedules, Xxxxxx shall not be liable for failure to
give such notice of delay or to deliver the Purchased Equipment.
4.3 Title to Equipment and Risk of Loss.
Title to all Purchased Equipment shall pass to Reseller at the moment
it is made available to Reseller by Xxxxxx at manufacturer's warehouse and,
thereafter, Reseller shall be responsible for any loss, theft and/or damage to
the Purchased Equipment, including any loss, theft or damage caused to the
Purchased Equipment as a result of, or during, shipment.
ARTICLE 5
RETURNS AND SHORT SHIPMENTS
4.1 Deficiency in a Shipment.
In the event of a shortage or deficiency in a shipment of Purchased
Equipment, Reseller shall give written notice to Xxxxxx of such claim within two
(2) business days of receipt of the subject delivery, failing which the
applicable invoice shall be considered payable in accordance with the terms
hereof.
4.2 Return Policy.
Within two (2) business days of receiving the Purchased Equipment,
Reseller will have the right to return directly to Xxxxxx or to the
manufacturer, at Xxxxxx' option, any damaged or defective equipment which is
under manufacturer's warranty as well as any equipment which does not comply
with the applicable Purchase Order, including overshipments. At its sole
discretion, Xxxxxx may refund, repair or replace equipment which it determines
to be under warranty or which fails to comply with the applicable Purchase
Order. Xxxxxx has the discretion to refuse the return where it determines that
the equipment in question was improperly used or handled.
5.3 Equipment Returned.
Any return shall be in accordance with this Agreement, whether returned
upon termination of this Agreement or at any other time, and shall be in its
original packaging and in a condition which is saleable pursuant to Xxxxxx'
normal commercial terms and shall be delivered at Reseller's expense, to
manufacturer's warehouse where such equipment was delivered to Reseller.
ARTICLE 6
SECURITY GRANTED
5.1 Purchase Money Security Interest.
Without limiting the foregoing, Xxxxxx reserves, until full payment is
received, a purchase money security interest in all Purchased Equipment and in
all proceeds derived from the resale of same. The Reseller shall provide such
information, execute and deliver such further agreements, documents and
instruments as Xxxxxx may request so that Xxxxxx may perfect and maintain such
security interest. If, in the event of default, such security interest is not
sufficient to satisfy any indebtedness of the Reseller, the Reseller
acknowledges and agrees that the Reseller shall continue to be liable for any
indebtedness remaining outstanding and Xxxxxx shall be entitled to pursue full
payment thereof.
6.2 Moveable Hypothec.
As security for any amounts owing by the Reseller to Xxxxxx and for all other
obligations of the Reseller toward Xxxxxx under this Agreement, or under any
other present or future agreement entered into between Reseller and Xxxxxx, the
Reseller hereby grants to Xxxxxx a moveable hypothec on the universality of all
the undertakings, properties and assets which the Reseller owns or has an
interest in whether such ownership or interest exists at any time thereafter and
said hypothec shall extend to all proceeds arising therefrom. The present
moveable hypothec is granted for a maximum amount of FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00). It is agreed that Xxxxxx shall have the right at its sole
discretion, at any time, to register and publish such moveable hypothec and/or
to renew such registration and/or publication.
6.3 Reseller Default.
In the event that Reseller is in default of any of its obligations
under this Agreement, Xxxxxx shall have the right to draw on the security
granted hereunder or any letter of credit or security deposit given by Reseller
to Xxxxxx pursuant to this Agreement or any other agreement.
ARTICLE 7
TERMINATION
6.1 Effect of Termination
The termination of this Agreement shall not relieve or release either
party from any of its obligations accrued hereunder prior to the effective date
of such termination. Notwithstanding the foregoing, all outstanding orders which
have not yet been delivered will automatically be cancelled and Xxxxxx will have
the option to require Reseller to return, at Reseller's expense, all unsold
Purchased Equipment.
ARTICLE 8
WARRANTY
9.1 No Warranty.
ANY WARRANTY WITH RESPECT TO THE PURCHASED EQUIPMENT SHALL BE LIMITED TO THAT
OFFERED BY THE MANUFACTURER, IF APPLICABLE. OTHER THAN ANY WARRANTY PROVIDED BY
THE MANUFACTURER OF THE PURCHASED EQUIPMENT, XXXXXX HEREBY DISCLAIMS ALL EXPRESS
OR IMPLIED WARRANTIES ON ANY PURCHASED EQUIPMENT, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF MERCHANTABILITY OR
NONINFRINGEMENT OF THIRD PARTY RIGHTS. XXXXXX' SOLE LIABILITY WILL BE TO ASSIGN
TO THE RESELLER, AT THE RESELLER'S REQUEST AND TO THE EXTENT PERMITTED BY LAW,
THE BENEFIT OF ANY WARRANTY EXTENDED BY THE MANUFACTURER OF THE PURCHASED
EQUIPMENT.
