NONEXCLUSIVE DEALER AGREEMENT
THIS NONEXCLUSIVE DEALER AGREEMENT ("Agreement") is made this ______ day of
______________, 2001 (the "Effective Date") between Cricket Communications. Inc.
a Delaware corporation doing business as Cricket Wireless, Inc. In Pennsylvania
("Cricket"), with chief executive offices at
and Lo Xxxxxx & Associates, Inc. dba All Pro Communications
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a Pennsylvania corporation partnership or sole proprietor (circle one))
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("Dealer"),having its principal place of business at
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WHEREAS, Cricket is in the business of providing wireless Personal
Communications services (PCS) to subscribers in specific local geographic areas
(the "Business" or "Service"); and
WHEREAS, as part of providing the PCS service. Cricket sells, either
directly or through a designated third party supplier (the "Designated
Supplier"), mobile wireless telephones and accessories which can be used on the
Cricket wireless network in specific local geographic areas; and
WHEREAS, Dealer desires to become authorized by Cricket to market and sell
the mobile wireless telephones and accessories to end users ("Subscribers") upon
the ten1ls and conditions set forth in this Agreement; and
WHEREAS, Dealer contemplates repetitive purchases from Cricket of mobile
wireless telephone instruments (that generally include handsets, batteries, and
one or more accessories such as a power adapter/charger or phone strap), which
are more particularly described in Exhibit A attached hereto (the "Telephone
Packages" or "Phones"); and
WHEREAS, Cricket and Dealer agree that the terms and conditions of this
Agreement shall govern their relationship, and that all of Dealer's purchase
orders for Phones shall be subject to and consistent with the ten1ls and
conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
conditions herein contained, Cricket and Dealer agree as follows:
1. PERIOD OF AGREEMENT
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2. TERMINATION OR EXPIRATION
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d) Termination of this Agreement pursuant to paragraph {a) above shall not
affect purchase orders placed and accepted by Cricket or the Designated Supplier
prior to the date the termination notice was given or the date of expiration of
this Agreement. However, Cricket and the Designated Supplier shall have the
right and option, in their sole discretion, to reject any orders or require COD
on all orders shipped during any of the above notice period(s). Following
termination of this Agreement, Dealer shall not place further orders for the
Phones from Cricket or its Designated Supplier.
e) Text Omitted Per Request for Confidential Treatment by Pinnacle Business
Management, Inc.
f) Text Omitted Per Request for Confidential Treatment by Pinnacle Business
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g) Text Omitted Per Request for Confidential Treatment by Pinnacle Business
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h) Text Omitted Per Request for Confidential Treatment by Pinnacle Business
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i) Text Omitted Per Request for Confidential Treatment by Pinnacle Business
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3. PRODUCT ORDERS
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4. NON-EXCLUSIVE RIGHTS
a) Appointment of Non-exclusive Dealer. Cricket hereby appoints Dealer as a
non-exclusive dealer to sell Telephone Packages to end-users, upon the terms and
conditions of this Agreement, and Dealer accepts such appointment. Dealer's
appointment shall continue until the termination or expiration of this
Agreement. Dealer's appointment shall be effective only for the specific
geographic market area(s) (the "Area(s)") that are set forth in Exhibit C where
Cricket offers the Service.
Dealer agrees to use its best efforts to promote and sell the Telephone Packages
in the Area under the terms and conditions of this Agreement. Dealer
acknowledges that this Agreement is non-assignable and non-transferable in whole
or in part by Dealer. It is expressly understood and agreed that this Agreement
does not grant Dealer an exclusive privilege to sell Cricket Telephone Packages,
and Cricket may, in its sole discretion, appoint other dealers or distributors
of the Telephone Packages in the Area. Dealer understands that Cricket actively
markets and sells Cricket's Business and Telephone Packages directly in the
Area, in other areas, over the Internet, or otherwise in Cricket's discretion,
Dealer shall have no power or authority to appoint any other person or firm as a
distributor or dealer for the Telephone Packages.
Dealer acknowledges that Cricket has not required Dealer to pay any franchise
fee or other payment or commit to pay such fee or other payment as a condition
of the execution of this Agreement, and that the State franchise laws do not
govern the interpretation or enforceability of this Agreement. Dealer represents
and warrants to Cricket that Dealer does not and shall not deem itself to be a
franchisee of Cricket under any applicable law- Nothing in this Agreement shall
be deemed to establish or otherwise create a relationship of principal and agent
between Cricket and Dealer, nor does it create any joint venture or pal1nership
between Cricket and Dealer.
It is understood and agreed that Dealer is not a partner, agent, or employee or
other legal representative of Cricket for any purpose whatsoever. and Dealer has
no legal right or authority to make any representations. promises or agreements
in the name of or for the account of Cricket or any affiliate or parent of
Cricket. It is agreed that, when products are sold to Dealer under the terms of
this Agreement, the relationship of the parties hereto is that of a vendor and a
vendee. Dealer shall conduct its business for its own interest and all persons
employed in the conduct of Dealer's business shall be Dealer's employees or
agents. Dealer shall be solely responsible for the withholding or payment of all
federal. state, and local taxes, social security, unemployment, sickness.
disability, and worker's compensation insurance and other payroll taxes with
respect to its business. Dealer has the sole responsibility for directing its
own day-to-day business operations. Dealer shall pay its own business expenses.
Neither Dealer nor any of its employees. shall be entitled to any employee
benefits from Cricket. Dealer's sole financial incentive from this relationship
shall be the purchase of Cricket Products under the terms of this Agreement, the
profit (or loss) from selling Cricket Products to permitted Dealers. and any
other compensation as set forth in this Agreement.
b) Non-exclusive market rights - Marks
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5. NON-DIVERSION. CONFIDENTIAL INFORMATION, CONFIDENTIALITY AND NON-DISCLOSURE
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Management, Inc.
6. HANDSET AND ACCESSORY PRICING
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Management, Inc.
7. PAYMENT TERMS
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Management, Inc.
8. FREIGHT CHARGES
All freight charges shall be paid as set forth in Section 6 above, except if
indicated otherwise in exhibit A-1.
9. PRODUCT RETURNS AND REPAIRS.
a) Defective products. Dealer may return to the Designated Supplier any of the
purchased Telephone Packages that are defective for a full credit, provided that
the complete Telephone Package is returned (with handset, battery, charger and
power adapter). Prior to return, Dealer must receive from the Designated
Supplier a return material authorization ("RMA") for each return shipment.
Returns sent without a prior RMA will be returned to Dealer at Dealer's expense.
Dealer shall be charged for missing accessories if incomplete Telephone Packages
are returned. Dealer agrees to take reasonable care in preparing returns for
shipment. Improperly packaged material, or material damaged during shipment,
will be accepted at the discretion of the Designated Supplier. The Designated
Supplier may reject any material that was damaged during shipment or by improper
packaging prior to shipment.
"Defective" product means a Phone that fails immediately out of the package, or
fails within the first 30 days of ownership by the subscriber and within the
first 30 minutes of usage.
b) Customer Satisfaction Returns. Dealer may return, for a full credit, any of
the subscriber Telephone Packages returned to Dealer by a subscriber in the
first thirty (30) days after the subscriber's purchase of the Telephone Package.
provided that the Telephone Package is returned complete, with all accessories
that came with the product, with less than 30 minutes of usage and with proof of
purchase. Dealer will furnish such Telephone Package information as Cricket or
its Designated Supplier reasonably requests to verify the timeliness of the
returns.
c) Stock Balancing. Dealer may return unopened, unsold Telephone Packages to
Cricket at Dealer's expense for a full credit, provided such Telephone Packages
are in their original package, with all accessories, and in otherwise salable
condition. Telephone Packages that remain in Dealer's inventory for more than
ninety (90) days from date of shipment to Dealer, and discontinued Telephone
Packages which remain in Dealer's inventory for more than thirty (30) days from
date of shipment to Dealer are not eligible for stock balancing.
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e) Product repairs. All repairs, whether in warranty or out of warranty, shall
be the responsibility of the manufacturer(s) of the respective Telephone Package
or Accessory.
f) Return of Telephone package Cricket-operated retail stores. Telephone
Packages which qualify for repair or replacement under the terms of this
Agreement or under the terms of the limited warranty provided by the
manufacturer(s) of the Telephone Packages may be returned by the subscribers
directly to any of the Cricket-operated retail stores for the Service (instead
of to the Dealer) in the specific geographic market area where the Telephone
Packages are designated for use Cricket will advise Dealer when such
Cricket-operated retail store opens in the Dealer's Area serviced by the Cricket
wireless system, and Cricket will provide information to Dealer as to the
location, hours of operation and types of services available at the Cricket
store to subscribers. Dealer agrees to cooperate with Cricket in providing this
information to subscribers and to offer this option to subscribers as a
preferred option for repair or replacement of qualifying Telephone Packages.
10. MARKETING
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11. DEALER'S RESPONSIBILITIES
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12. MISCELLANEOUS
a) Assignment. Dealer shall not sell, assign, sublicense or transfer this
Agreement or any of its rights or obligations hereunder without Cricket's prior
written consent, which may be withheld at Cricket's sole and absolute
discretion. Cricket shall have the right, at Cricket's discretion, to assign
this Agreement.
b) Text Omitted Per Request for Confidential Treatment by Pinnacle Business
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c) Text Omitted Per Request for Confidential Treatment by Pinnacle Business
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d) Text Omitted Per Request for Confidential Treatment by Pinnacle Business
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e) Text Omitted Per Request for Confidential Treatment by Pinnacle Business
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f) Arbitration. Except with respect to a breach of the obligations of
confidentiality, non-competition and actions detrimental to the Business of
Cricket. as to which Cricket shall have the right to seek injunctive remedy or
other equitable remedies, disputes shall be settled by arbitration in accordance
with the Rules of the American Arbitration Association.
g) Governing Law, Jurisdiction, Venue, and Attorney's Fees. This Agreement and
the rights and obligations of the parties hereunder shall be construed in
accordance with and shall be governed by the laws of the State of California.
Dealer and Cricket agree that any action or arbitration relating to this
Agreement shall be brought only in the County of San Diego, State of California.
Dealer and Cricket hereby submit to the jurisdiction of the state court sitting
in San Diego County California or ,the .federal district court for the Southern
District of California sitting in San Diego.
h) Dealer's Authority. Dealer is duly organized, validly existing, and in good
standing under the laws of its incorporating jurisdiction, and has all requisite
power and authority to enter into this Agreement, to conduct the business
contemplated herein, and to own, lease and operate any properties or assets in
connection herewith, and that doing so does not conflict or cause a default with
respect to Dealer's obligations under any other agreement. Dealer shall at all
times during this Agreement maintain all business licenses, permits and
authorities required to perform Dealer's obligations hereunder in each Area.
Dealer shall provide to Cricket, upon Cricket's request, all license,
authorizations, certificates and other evidence of the Dealer's compliance with
the terms of this Agreement and all applicable laws.
i) Notices. All notices and other communications hereunder shall be given in
writing and shall be deemed to have been duly given and effective (1) upon
receipt if delivered in person, by telegram, telecopy of telex, (2) one day
after deposit prepaid with a national overnight express delivery service or (3)
three days after deposit in the United States mail (registered or certified,
postage prepaid, return receipt requested).
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j) Severability. In the event that any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement and such invalid or
unenforceable to the maximum extent compatible with, and possible under,
applicable law.
k) Waiver. The waiver by either party of a breach or a default of any provision
of this Agreement by the other party shall not be construed as a waiver of any
succeeding breach of the same or any other provision, nor shall any delay or
omission on the part of either party to exercise or avail itself of any right,
power or privilege that it has, or may have hereunder, operate as a waiver of
any right, power or privilege by such party.
l) Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. In making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart and
supersedes all prior agreements, understandings, negotiations, representations,
and proposals, whether written or oral, relating to its subject matter.
13. LIQUIDATED DAMAGES
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14. ENTIRE AGREEMENT
This Agreement, and the Exhibits attached hereto constitute the entire Agreement
between Cricket and Dealer with respect to the subject matter hereof and, except
as otherwise allowed in this Agreement. shall not be amended or modified without
specific written provisions to that effect, signed by authorized representatives
of both parties. No oral statement of any person whomsoever, shall in any manner
or degree. modify or otherwise affect the terms and provisions of this
Agreement.
IN WITNESS WHEREOF, Cricket and Dealer have caused this Agreement to be executed
by their duly authorized representatives as of the day and year first stated
above.
CRICKET COMMUNICATIONS, INC.
d/b/a Cricket Wireless, Inc.
By: _______________________________
Name: _____________________________
Title:______________________________
Lo Xxxxxx & Associates, Inc.
d/b/a All Pro Communications
By: _______________________________
Name: _____________________________
Title:______________________________
LIST OF EXHIBITS
Exhibit A- Price List
Exhibit A-1 .Payment Terms
Exhibit B -MDF/Co-op Advertising and Logo Guidelines
Exhibit C - Geographic Market Areas and Designated Supplier
When executing this Agreement. please remember to:
Fill out page 1 with the true corporate name of the Dealer and include a d/b/a
if applicable -also indicate the principal-place of business of the Dealer;
Fill out the blank space in Article 11c (the minimum number of Telephone
Packages to be sold by Dealer each month);
Fill out the blanks in Section 12i (the name and address of Dealer for notice
purposes);
Fill out the Area in item #1 in Exhibit C (the Markets services by Cricket where
Dealer is permitted to market and sell the Telephone Packages) and the address
of each Dealer location that will be authorized to sell the Cricket Telephone
Packages in the Area.
Execute two (2) originals of this Agreement.
EXHIBIT A
PRICE LIST
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EXHIBIT A-1
PAYMENT TERMS
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Management, Inc.
EXHIBIT B
MDF/CO-OP ADVERTISING AND LOGO GUIDELINES
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Management, Inc.
CRICKET AUTHORIZED DEALER LOGO GUIDELINES
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AUTHORIZED DEALER LOGO SLICK
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EXHIBIT C
DESIGNATED MARKET AREA(s) AND DESIGNATED SUPPLIER
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