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RADIUS COMMUNICATION PRODUCTS RESELLER AGREEMENT
This Radius, Communication Products Reseller Agreement ("Agreement") is
made and entered into as of September 22, 1994 ("Agreement Date") at
Schaumburg, Illinois, by and between MOTOROLA, INC., a Delaware Corporation
having a principal place of business at 0000 X. Xxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000 ("Motorola" or "Seller") and Champion Comm. Services, Inc. a
Delaware Corporation with a principal place of business at Houston, Tx.
("Buyer" or "Reseller").
1. TERM, PRODUCTS, RETAIL SALE ONLY, AND SALES AGENTS.
The initial term of this Agreement shall commence as of 9/23/94 and shall
continue for a term expiring on June 30th of each year unless sooner terminated
as provided in this Agreement. Thereafter, this Agreement shall renew
automatically for successive one-year additional terms unless terminated by
either party in writing no less than thirty days prior to the expiration date of
the initial or any additional term or unless otherwise terminated pursuant to
the terms of this Agreement.
During the term of this Agreement, Buyer agrees to purchase and Seller
agrees to sell selected Radius Communication Products as listed on Attachment A
to this Agreement ("Products"). Motorola in its sole discretion may revise the
list of selected Products from time to time without any liability to Buyer.
Also in its sole discretion, Motorola may discontinue the production or sale or
modify the design or material specifications of any Products or parts of any
Products without any liability or obligations to Buyer or its customers.
Buyer specifically acknowledges the existence of other products and
product lines of Motorola and agrees and consents to the limitation of this
Sales Agreement solely to selected Motorola Radius Communication Products as
listed on Attachment A, Products and Pricing Schedule, attached to this
Agreement and made a part of it.
Buyer shall sell the Products purchased under this Agreement at retail sale
only, (i.e., to end users).
Additionally, Buyer shall refrain from appointing without the prior written
approval of Motorola any sales agent or representative (other than its
employees) in connection with the performance of this Agreement. In the event
that Motorola grants such approval, it is understood that such appointment
shall be made only in the name and for the account of Buyer and shall be for a
term no greater than the term of this Agreement. Buyer shall not grant to such
sales agent or representative any rights greater than those which are granted
by Motorola to Buyer under this Agreement. Buyer shall also impose on such
sales agent and representative the same obligations as Motorola has imposed on
Buyer under this Agreement for the purpose of protecting the goodwill of
Motorola and the Products.
Buyer shall provide Motorola with information in detail satisfactory to
Motorola regarding any sales agent or representative proposed by Buyer for
appointment.
2. PRICES.
The prices for the applicable quantity of Products purchased pursuant to
this Agreement shall be as set forth on the Pricing Schedule which is attached
to this Agreement as Attachment A, Products and Pricing Schedule. Such prices
are subject to change upon thirty days written notice to Buyer.
3. ORDERS, ACCEPTANCE, CREDIT APPROVAL.
Purchase and sale shall occur only by Motorola's acceptance of Orders
submitted by Buyer. An order may be submitted on the Reseller Order form
attached to this Agreement as Attachment B and incorporated by reference into
it. Such form may be amended from time to time by Motorola. Facsimile,
telegraph and verbal orders may also be submitted. Acceptance shall be
documented by a Motorola invoice sent to Buyer. Buyer acknowledges and agrees
that the invoice is accurate and final unless objected to in writing within ten
days of receipt by Buyer.
Acceptance shall be only upon the terms and conditions of this Agreement
and the listed Attachments. The only effect of any terms and conditions in
Buyer's purchase orders or elsewhere shall be to request the time and place of
delivery and number of Products to be delivered, but they shall not change,
alter or add to these terms and
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conditions in any way. One of the conditions of acceptance is Buyer's obtaining
and maintaining credit approval from Motorola. Buyer shall provide Motorola
with financial information and statements as requested by Motorola to obtain
and maintain Buyers credit approval.
4. CANCELLATION.
Buyer may cancel an individual order by giving Motorola notice of such
cancellation which notice must be received by Motorola at least six or more
days prior to the scheduled shipping date of such order. Motorola shall not
cancel an individual order when the notice is received by Motorola within five
days of the scheduled shipping xxxx of the order.
5. SHIPPING, DELIVERY, PAYMENT, TITLE AND SECURITY.
(a) Shipping and handling charges shall be as set forth in Attachment A.
Such shipping and handling charges are subject to change upon thirty days
written notice to Buyer.
(b) Each delivery will be separately invoiced without regard to other
deliveries. Payment for each invoice will be according to the payment terms set
forth in Attachment A. Such payment terms are subject to change upon thirty
days written notice to Buyer.
(c) Shipping or delivery dates are best estimates only. Motorola reserves
the right to make deliveries in installments and the contract shall be
severable as to such installments. Delivery delay or default of any installment
shall not relieve Buyer of its obligation to accept and pay for remaining
deliveries. IN NO EVENT SHALL MOTOROLA BE LIABLE FOR INCREASED COSTS, LOSS OF
PROFITS OR GOODWILL OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO
LATE OR NONDELIVERY OF PRODUCTS.
(d) Title to Products sold and risk of loss shall pass to Buyer at the
shipping point. Buyer grants to Motorola a security interest in and lien upon
all of Buyer's now existing or hereinafter acquired inventory of the Products
and all of Buyer's accounts, chattel paper, instruments, contract rights,
general intangibles, accounts receivable and the proceeds thereof now existing
or hereinafter arising out of Buyer's sale or other disposition of the
Products. Buyer agrees to cooperate in whatever manner necessary to assist
Motorola in perfecting and recording such security interest and lien by
completing the UCC 1 form attached to this Agreement as Attachment C and such
other security as Motorola may from time to time request, all such security
interests and liens to become part of this Agreement.
6. WARRANTY.
Motorola warrants the Products in accordance with the Limited Warranty
attached to the Agreement as Attachment D and made a part of it and makes no
representation or warranty of any other kind. This Limited Warranty is extended
by Motorola not to Buyer but to the original purchaser of the Products from
Buyer and is not assignable or transferable to subsequent purchasers. Buyer,
upon the sale of the Products, is authorized to provide this Limited Warranty
to its customers and shall deliver to its customers the printed Limited
Warranty attached hereto as Attachment D. Buyer shall not issue any warranties
or guarantees with respect to the Products which purport to obligate Motorola
to any person or entity other than the aforesaid Limited Warranty furnished for
the Products by Motorola. Such Warranty may be changed from time to time by
Motorola on one hundred twenty days prior written notice to Buyer. SUCH
WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH
ARE SPECIFICALLY EXCLUDED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE RADIUS COMMERCIAL
WARRANTY DOES NOT APPLY OUTSIDE OF THE FIFTY UNITED STATES AND THE DISTRICT OF
COLUMBIA.
7. PATENT, COPYRIGHT AND TRADEMARKS.
(a) INDEMNIFICATION. Motorola agrees to defend, at its expense, any suits
against Buyer based upon a claim that any Motorola-manufactured Products
furnished hereunder directly infringe a U.S. patent or copyright and to pay
costs and damages finally awarded in any such suit, provided that Motorola is
notified promptly in writing of the suit and, at Motorola's request and at its
expense, is given control of said suit and all requested assistance for defense
of same. If the use or sale of any such Product(s) furnished hereunder is
enjoined as a result of such suit, Motorola, at its option and at no expense to
Buyer, shall obtain for Buyer the right to use or sell such Product(s), or
shall substitute an equivalent Product reasonably acceptable to Buyer and shall
extend this indemnity thereto, or shall accept the return of such Product(s)
and reimburse Buyer the purchase price therefor less a reasonable charge for
reasonable wear and tear. This indemnity does not extend to any suit based
upon any infringement or alleged infringement of any patent or copyright by the
combination of any such Product(s) furnished hereunder and other elements nor
does it extend to any such Product(s) of Buyer's design or formula. The
foregoing states the entire liability of Motorola for patent or copyright
infringement. IN NO EVENT SHALL MOTOROLA BE LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF
PATENTS OR COPYRIGHTS.
(b) COPYRIGHTS AND MASK WORKS. Laws in the United States and other
countries preserve for Motorola certain exclusive rights in the Motorola
Software, mask works and other works of authorship furnished
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hereunder, including without limitation the exclusive right to prepare works
derived from same, reproduce same in copies and distribute copies of same. Such
Motorola Software, mask works and other works of authorship may be used in and
redistributed only with the Products associated with same. No other use,
including without limitation reproduction, modification or disassembly of such
Motorola Software, mask works or other works of authorship or exercise of
exclusive rights in same, is permitted.
(c) REVERSE ENGINEERING. Buyer acknowledges Motorola's claim that the
Motorola Software and Products furnished hereunder contain valuable trade
secrets of Motorola and therefore agrees that it will not translate, reverse
engineer, de-compile or disassemble or make any other unauthorized use of such
Motorola Software and Products. Since unauthorized use of such Motorola
Software and Products will greatly diminish the value of such trade secrets and
cause irreparable harm to Motorola, Buyer agrees that Motorola, in addition to
any other remedies it may have, shall be entitled to equitable relief to
protect such trade secrets, including without limitation temporary and
permanent injunctive relief without the proving of damage by Motorola.
(d) TRADEMARK AND PROPRIETARY MARKS.
(1) The Products shipped under the terms and conditions of this
Agreement will carry Motorola's trademark and proprietary marks or such other
logo or proprietary marks as Motorola may expressly agree to in writing prior
to any use of such other logo or xxxx.
(2) Buyer hereby acknowledges the validity of the trademark "RADIUS"
as well as of all other proprietary marks which are affixed to the Motorola
Products and agrees that the aforesaid trademark and proprietary marks are and
shall remain the property of Motorola.
(3) Buyer shall not do anything to infringe upon, harm, or contest the
validity of the aforesaid trademark or other proprietary marks of Motorola.
(4) Buyer may use the trademark "RADIUS" in connection with the
promotion or sale of such Motorola Products and state that such Products are
manufactured by Motorola. Except as Motorola may otherwise specifically
provide, such promotion shall be at Buyer's sole cost and expense.
(5) Buyer agrees that it shall not use the trademark "RADIUS" as part
of the name under which it conducts business.
(6) Permission to display the word "MOTOROLA", "RADIUS" or any other
proprietary word or symbol owned by Motorola or its affiliates, is only as
stated above and it is expressly understood that nothing herein shall grant to
Buyer any right, title or interest in the words "MOTOROLA", "RADIUS" (either
alone or in association with other words, names or symbols), or in the
corporate name of Motorola, or any part thereof or in any other trademark or
trade name adopted by Motorola or its affiliates.
(7) In order that Motorola may protect its trademarks, trade names,
corporate slogans, goodwill and product designations, Buyer shall not use any
such marks, names, slogans, or designations in any advertising copy,
promotional material, signs or other written or printed material except in a
form specifically approved in writing by Motorola.
(8) If, as set forth in subparagraph (4) above, any such xxxx is used
in signs, advertising or in any other manner by Buyer, Buyer will, upon
termination or expiration of this Agreement, immediately discontinue all such
use or display.
(e) LICENSE DISCLAIMER. Except for the right to use the Motorola Software
and Products for the purpose provided herein which arises by operation of law
and except as expressly provided in the Agreement, nothing contained in this
Agreement shall be deemed to grant to Buyer either directly or by implication,
estoppel or otherwise, any license or right under any patents, copyrights,
trademarks or trade secrets of Motorola or any third party.
8. USE OF BUYER'S NAME.
Motorola may advertise the Products subject to this Agreement and Motorola
may with Buyer's consent use Buyer's name in such advertising. To assist Buyer
in promoting sales Motorola may furnish such promotional literature and other
advertising aids as Motorola deems necessary.
9. TERM, TERMINATION.
This Agreement will begin on the Agreement Date and is effective for the
term indicated in Paragraph 1 unless terminated sooner according to this
Paragraph. This Agreement may be terminated:
(a) by either party without cause upon sixty days prior written notice to
the other party; or
(b) by Motorola immediately upon the occurrence of any of the following
events:
(1) a breach of any term or provision of Paragraphs 7 or 15;
(2) a change in the control or management of Buyer which is
unacceptable to Motorola;
(3) Buyer ceasing to function as a going concern, declaring
bankruptcy, having a receiver for it appointed, or otherwise taking advantage
of any insolvency law;
(4) Buyer's failure to cure a breach of this Agreement, other than a
breach of Paragraphs 7 or 15, within thirty days after Motorola's written
notification to Buyer of such breach;
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(5) the untrue statement of a material fact, or omission to state a
material fact necessary to make the statements contained therein not
misleading, in any written information or statement furnished by Buyer to
Motorola in connection with this Agreement or the performance of this
Agreement;
(6) Buyer's engaging in any practice with respect to the Products which
is determined to be an illegal or unfair trade practice in violation of any
applicable Federal, State or Local law, or which in the opinion of counsel to
Motorola is an illegal or unfair trade practice in violation of any applicable
Federal, State or Local law;
(7) any direct or indirect sale of Products by Reseller outside of the
fifty United States and the District of Columbia which are not in accordance
with Paragraph 20 of this Agreement; or
(8) any use by Buyer of any sales agent or representative (other than
its employees) in connection with the performance of this Agreement without the
prior written approval of Motorola.
(c) Nothing contained in this Agreement shall be deemed to create any
express or implied obligation on either party to renew or extend this Agreement
or to create any right to continue this Agreement on the same terms and
conditions contained in it.
10. EFFECT OF TERMINATION OR EXPIRATION.
(a) Neither Motorola nor Buyer shall be liable to the other, or to any
other party, by virtue of the termination or expiration of this Agreement for
any reason whatsoever, or by virtue of the cancellation of any orders for the
Products that are undelivered on the effective date of any termination of this
Agreement, including, but not limited to, any claim for loss of profits or
prospective profits for anticipated sales of Radius Communication Products.
(b) All sums owed by either party to the other shall become due and payable
immediately upon termination of this Agreement.
(c) Upon termination or expiration of this Agreement, Buyer shall, within
two working days of such termination or expiration, deliver to such address as
Motorola shall specify all Motorola property, including but not limited to all
catalogs, drawings, designs, engineering photographs, samples, literature,
sales aids and other confidential business information and trade secrets of
Motorola in Buyer's possession.
(d) Upon expiration or termination, Motorola shall be relieved of any
obligation to make any further shipments under this Agreement and, with respect
to termination, may cancel all of Buyer's unshipped orders for the Products,
irrespective of previous acceptance by Motorola. Motorola shall have no
obligation or liability to Buyer or its prospective customers in connection
with any such cancellations.
(e) Motorola's acceptance of any order by Buyer for the Products after the
termination or expiration of this Agreement shall not be construed as a renewal
or extension of this Agreement, nor as a waiver of termination.
(f) The terms, provisions, representations and warranties contained in this
Agreement that by their sense and context are intended to survive the
performance thereof by either or both parties shall so survive the completion
of performances and termination or expiration of this Agreement, including the
making of any and all payments due under this Agreement.
11. TAXES.
Except for the amount, if any, of Federal, State, or Local taxes stated in
Attachment A, the prices set forth herein are exclusive of any amount for
Federal, State, or Local excise, sales, use, property, retailers' occupation or
similar taxes. If any such excluded taxes are determined to be applicable to
this transaction or if Motorola is required to pay or bear the burden of such
taxes, the prices set forth herein shall be increased by the amount of such
taxes and any interest or penalty thereon, and Buyer shall pay to Motorola the
full amount of any such increase no later than ten days after receipt of an
invoice for such taxes, or Buyer may provide Motorola an executed resale
exemption certificate as required by state tax authorities to establish Buyer's
tax exempt status as a reseller under this Agreement.
12. EXCUSABLE DELAYS.
Motorola shall not be liable for any delay or failure to perform due to any
cause beyond its control. Causes include but are not limited to strikes, acts
of God, acts of the Buyer, interruptions of transportation or inability to
obtain necessary labor, materials or facilities, or default of any supplier.
The delivery schedule shall be considered extended by a period of time equal to
the time lost because of an excusable delay. In the event Motorola is unable to
wholly or partially perform because of any cause beyond its control, Motorola
may terminate any order without any liability to Buyer.
13. WAIVER.
The failure of either party to insist in any one or more instances upon the
performance of any of the terms, covenants, or conditions in this Agreement, or
to exercise any right under this Agreement, shall not be construed as a waiver
or relinquishment of the future performance of any such term, covenant, or
condition or the future exercise of any such right but the obligation of each
party with respect to such future performance shall continue in full force and
effect.
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14. FCC AND OTHER GOVERNMENT MATTERS.
Buyer or the end-user is solely responsible for obtaining any licenses or
other authorizations required by the Federal Communications Commission ("FCC")
or any other Federal, State or Local governmental agency. Buyer is solely
responsible for complying with applicable FCC rules and regulations and the
applicable rules and regulations of any other Federal, State or Local
governmental agency. Neither Motorola nor any of its employees is an agent of
Buyer or the end-user in FCC or other governmental matters.
15. COMPLIANCE WITH LAW.
Buyer shall at all times conduct its efforts hereunder in strict accordance
with all applicable Federal, State and Local laws and regulations and with the
highest commercial standards. Buyer agrees to promptly comply with any notices
received from Motorola regarding compliance with any State or Federal law
including but not limited to laws regarding warranty or consumer protection.
16. COMMUNICATIONS SERVICES.
Buyer agrees that communications services such as Specialized Mobile Radio,
community repeater or other communications services are not provided under the
Agreement. Buyer or the end-user must enter into separate agreements with the
service provider(s) to obtain such services. MOTOROLA DISCLAIMS LIABILITY FOR
RANGE, COVERAGE, AVAILABILITY OR OPERATION OF ANY SYSTEM.
17. LIMITATIONS.
(a) LIMITATION OF LIABILITY. EXCEPT FOR PERSONAL INJURY AND EXCEPT AS
PROVIDED FOR IN THE SECTION "PATENT, COPYRIGHT AND TRADEMARKS", MOTOROLA'S
TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER FOR BREACH
OF CONTRACT, WARRANTY, MOTOROLA'S NEGLIGENCE, STRICT LIABILITY IN TORT OR
OTHERWISE, IS LIMITED TO THE PRICE OF THE PARTICULAR PRODUCTS SOLD HEREUNDER
WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. BUYER'S SOLE REMEDY IS TO
REQUEST MOTOROLA AT MOTOROLA'S OPTION TO EITHER REFUND THE PURCHASE PRICE, OR
REPAIR OR REPLACE PRODUCTS THAT ARE NOT AS WARRANTED. IN NO EVENT, WHETHER FOR
BREACH OF CONTRACT, WARRANTY, MOTOROLA'S NEGLIGENCE, STRICT LIABILITY IN TORT,
OR OTHERWISE, WILL MOTOROLA BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES, INCLUDING, BUT NOT LIMITED TO, FRUSTRATION OF ECONOMIC OR BUSINESS
EXPECTATIONS, LOSS OF PROFITS, LOSS OF DATA, COST OF CAPITAL, COST OF
SUBSTITUTE PRODUCT(S), FACILITIES OR SERVICES, DOWNTIME COST OR ANY CLAIM
AGAINST BUYER BY ANY OTHER PARTY.
(b) INSURANCE. IT IS FURTHER UNDERSTOOD THAT MOTOROLA IS NOT AN INSURER AND
THAT BUYER SHALL OBTAIN ALL INSURANCE, IF ANY, THAT IS DESIRED AND THAT
MOTOROLA DOES NOT REPRESENT OR WARRANT THAT MOTOROLA PRODUCTS WILL AVERT OR
PREVENT OCCURRENCES, OR THE CONSEQUENCES THEREFROM, WHICH ARE MONITORED,
DETECTED OR CONTROLLED WITH USE OF THE PRODUCTS.
(c) TIME TO XXX. EXCEPT FOR MONEY DUE UPON OPEN ACCOUNT, NO ACTION SHALL BE
BROUGHT FOR ANY BREACH OF THIS AGREEMENT MORE THAN TWO YEARS AFTER THE ACCRUAL
OF SUCH CAUSE OF ACTION EXCEPT WHERE A SHORTER LIMITATION PERIOD IS PROVIDED BY
APPLICABLE LAW.
(d) NO REPRESENTATIONS. THE ISSUANCE OF INFORMATION, ADVICE, APPROVALS,
INSTRUCTIONS OR COST PROJECTIONS BY MOTOROLA'S SALES PERSONNEL OR OTHER
REPRESENTATIVES SHALL BE DEEMED EXPRESSIONS OF PERSONAL OPINION ONLY AND SHALL
NOT AFFECT MOTOROLA'S AND BUYER'S RIGHTS AND OBLIGATIONS HEREUNDER UNLESS THE
SAME IS IN WRITING AND SIGNED BY AN OFFICER OF MOTOROLA WITH THE EXPLICIT
STATEMENT THAT IT CONSTITUTES AN AMENDMENT TO THIS AGREEMENT.
18. FORECAST.
During the term of this Agreement, Buyer shall update, on a monthly basis,
its inventory of Products and provide Seller, in a form to be provided by
Seller, a monthly usage forecast to assist Seller in maintaining an orderly
production flow for the purpose of meeting Buyer's delivery requirements.
Buyer's failure to provide such information may be considered cause by Seller
for excusable delivery delay.
19. PARTY RELATIONSHIP.
This Sales Agreement does not create an agency, joint venture or
partnership between Buyer and Seller. Neither party shall impose or create any
obligation or responsibility, express or implied, or make any promises,
representations or warranties on behalf of the other party, other than as
expressly provided herein.
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20. SALES OUTSIDE OF THE UNITED STATES.
In the event that Reseller elects to sell Motorola Radius Products or
services to entities outside of the United States, Reseller does so solely at
its own option and risk. Reseller remains solely and exclusively responsible
for compliance with all statutes and regulations governing sales to foreign
entities. These statutes include, but are not limited to those of the United
States Government including United States export control law and those of the
foreign entity involved, as well as those of certain international
organizations whose function it is to regulate such sales, such as The
Coordinating Committee for East West Trade. Radius makes no
representations, certifications or warranties whatsoever with respect to the
ability of its goods, services or prices to satisfy any such statutes or
regulations. Failure of the Reseller to conduct any sales to foreign entities
in strict accordance with all statutes and regulations of all governments and
organizations involved shall constitute a material breach of this Agreement.
The Radius Limited Warranty does not apply outside of the fifty United States
and the District of Columbia.
21. SALES TO THE U.S. GOVERNMENT.
In the event that Reseller sells Products or services to the U.S.
Government, or to a prime contractor selling to the U.S. Government, Reseller
does so at its own option and risk. Reseller remains solely and exclusively
responsible for compliance with all statutes and regulations governing sales to
the U.S. Government. Motorola Radius makes no representations, certifications
or warranties whatsoever with respect to the ability of its goods, services or
prices to satisfy any such statutes or regulations. Failure of the Reseller to
conduct any sales to the U.S. Government, or to U.S. Government prime
contractors, in strict accordance with U.S. law shall constitute a material
breach of this Agreement.
22. GENERAL.
(a) Except for changes by Motorola in the various attachments to this
Agreement or in the price, design, terms of sale, warranty, or specifications
of the Products, any amendment to this Agreement must be in writing and signed
by an authorized representative of Motorola and Reseller.
(b) Buyer acknowledges that it has read and understands these terms and
conditions and agrees to be bound by them, and that this Agreement, including
the Attachments, is the complete and exclusive statement of the agreement
between the parties and supersedes all proposals, oral or written, and all
other communications between the parties relating to the subject matter hereof.
(c) This Agreement is binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, executors, legal representatives,
successors and assigns. Buyer may not assign this Agreement without the express
written consent of Seller.
(d) If any provision of this Agreement is contrary to, prohibited by or
held invalid by any law, rule, order or regulation of any government or by the
final determination of any State or Federal Court, such invalidity shall not
effect the enforceability of any other provisions not held to be invalid.
(e) Section and paragraph headings used in this Agreement are for
convenience only and are not to be deemed or construed to be part of this
Agreement.
(f) CONTROLLING LAW. THIS DOCUMENT AND THE RIGHTS AND DUTIES OF THE PARTIES
SHALL BE GOVERNED AND INTERPRETED ACCORDING TO THE LAWS OF THE STATE OF
ILLINOIS.
The parties deem this Agreement to be executed by their duly authorized
representatives on the Agreement Date.
SELLER: BUYER:
MOTOROLA, INC. CHAMPION COMM. SERVICES, INC.
Xxxxx X. Xxxxxx
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By: /s/ XXX XXXXXXXX By: /s/ XXXXX X. XXXXXX
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(Authorized Signature) (Authorized Signature)
Title: Xxx Xxxxxxxx Title: President
---------------------------- ------------------------
V.P. and General Manager
November 8, 1994
Attachments Included:
A. Products and Pricing Schedule
B. Reseller Order Form
C. Uniform Commercial Code UCC 1
D. Limited Warranty
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AMENDMENT TO RESELLER AGREEMENT
This amending agreement is made and entered into this 22 day of
September, 1994 by and between MOTOROLA ("Motorola"), and Champion Comm.
Services, Inc. ("Buyer").
WHEREAS, the parties hereto made and entered into a written RADIUS
COMMUNICATION PRODUCTS RESELLER AGREEMENT on September 22, 1994 ("Reseller
Agreement") which provides that Buyer shall sell the Products purchased under
the Agreement to end users only and that Buyer shall not appoint sales agents
or representatives in connection with the performance of the Agreement without
the prior approval of Motorola, and
WHEREAS, Buyer recognizes Motorola's interest in planning and maintaining
an efficient product distribution system to encourage Buyer and other resellers
to make the investments necessary to expand Motorola's distribution of Products
and services and to provide the highest levels of customer satisfaction.
THEREFORE, Motorola and Buyer agree as follows:
1. Paragraph 9(b)(8) of the Reseller Agreement ("TERM, TERMINATION") is
deleted and replaced with the following: "any direct or indirect sale
of Products by Reseller other that at retail (i.e., other than to
end-users) and/or any sale in connection with a sales agent or
representative not approved by Motorola. Buyer further agrees to pay
to Motorola damages of $150.00 for each unit so sold in addition to or
in lieu of termination, at Motorola's discretion. Any such payment
shall be in accordance with the payment terms set forth in Attachment
A. Buyer agrees to give to Motorola and to its accountants and other
representatives full access to all books, contracts, commitments and
records of Buyer related to Buyer's sale of Products, and to furnish
all other information with respect to its affairs, as deemed necessary
by Motorola to determine the amount of any such payment owed."
2. In all other respect, the Reseller Agreement shall continue in full
force and effect.
3. This amendment shall become effective on the date hereof.
MOTOROLA: BUYER:
/s/ XXXXX X. XXXXXX
-----------------------------------
By: /s/ XXX XXXXXXXX By: Xxxxx X. Xxxxxx
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Title: Xxx Xxxxxxxx Title: President
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V.P. and General Manager
November 8, 1994
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MASTER AMENDMENT NO.1
to
MOTOROLA INC. RADIUS COMMUNICATION PRODUCTS RESELLER AGREEMENT
("Agreement")
between
MOTOROLA, INC. ("Motorola")
and
Champion Communication Services Inc. ("Reseller")
The Woodlands, Texas (City, State")
Effective the Motorola execution date shown below, Reseller and Motorola
agree that the Agreement is changed as follows:
A. Subparagraph 9(b)(8) of the Agreement entitled, "TERM, TERMINATION" is
replaced in its entirety with the following:
"any direct or indirect sale of the Products by Reseller that does not
comply with Reseller's covenant to limit its distribution of the Products
purchased under this Agreement to direct sale by Reseller only to customers at
retail for end use as limited by the terms and conditions of this Agreement.".
B. The following new sections are added to the end of the Agreement:
"AA. RESELLER MARKETING REPORTS
Reseller shall provide to Motorola by the first Wednesday of each month
during any term of this Agreement, a marketing report ("Reseller Marketing
Report") by customer name setting forth the number of units of each of the
Products sold by Reseller during the preceding month, including dollar volume
of sales by ultimate destination zip code, customer Standard Industrial Code
("SIC"), or other categories or industry groupings requested by Motorola.
Reseller shall provide said information by completing and sending to Motorola a
marketing report in whatever form requested by Motorola. The current form of
marketing report is attached to this amendment as Attachment 1-Reseller
Marketing Report Form.
In the event Reseller fails to provide Motorola any marketing report called
for by this Agreement and Reseller fails to cure such failure within fifteen
(15) days of notice of such failure from Motorola then, in addition to
Motorola's other rights and remedies under the Agreement, at law or in equity,
Motorola may withhold any further processing of any Reseller order for Products
until each such report is provided to Motorola as required by the Agreement.
BB. Per Unit Administrative Processing Charge
Reseller agrees to limit its distribution of the Products purchased under
the Agreement to direct sale by Reseller to customers at retail for end use as
limited by the terms and conditions of the Agreement. Reseller acknowledges
that its defined role in Motorola's distribution system is necessary, in order
to encourage Motorola, Reseller and Motorola's other resellers, distributors
and dealers to make the distribution efforts necessary to expand Motorola's
distribution of Products and to provide the highest levels of customer
satisfaction.
(See Reverse Side)
9
Reseller and Motorola agree that Motorola shall incur serious damages if
Reseller's sale of any Products unit fails to comply with the aforementioned
provisions of the Agreement and, further, that the amount of those damages are
uncertain and difficult of estimation because such damages include by way of
illustration but not Limitation, Motorola undertaking a variety of record
keeping, administrative and operational activities and the costs and expenses
related thereto for each such breach of the Agreement by Reseller.
In addition to Motorola's other rights and remedies under the Agreement, at
law or in equity, to compensate Motorola for such damages, Motorola and
Reseller agree that for each such Products unit sale, as stipulated damages and
not as a penalty, on a per Products unit involved in the transaction basis, the
stipulated sum shall be a Per Unit Administrative Processing Charge which shall
consist of the difference between Motorola's Suggested List Price and the
Reseller purchase price listed in Motorola's then current Reseller Price Book
for each Products unit involved in each such non-compliant sale ("Per Unit
Administrative Processing Charge"). To assist in the identification of each
Reseller Products unit subject to the Per Unit Administrative Processing
Charge, Reseller shall give to Motorola full cooperation and access to all of
Reseller's books, contracts and records related in any way to Reseller's sale
of Products units, and to furnish to Motorola all other information with
respect to its affairs, as deemed necessary by Motorola, to identify each such
Products unit.
Motorola shall invoice Reseller for each Per Unit Administrative Processing
Charge. Payment for each such invoice shall be due upon Reseller's receipt of
invoice. In the event Reseller fails to pay an outstanding Per Unit
Administrative Processing Charge invoice within thirty (30) days of the date
such payment is due, in addition to Motorola's other rights and remedies under
the Agreement, at law or in equity, Motorola may withhold any further
processing of any Reseller order for Products until such payment is made."
C. This Master Amendment No. 1 replaces and supersedes any existing
amendment to the Agreement which had as its purpose an amendment to Paragraph 9
(b)(8) of the Agreement. Upon the Motorola execution date shown below, any such
existing amendment between Reseller and Motorola is no longer of any force or
effect.
Except as specifically amended above, the Agreement remains in full force and
effect in accordance with all its terms. conditions and amounts.
MOTOROLA. INC.: RESELLER:
By: /s/ XXX XXXXXXXX By: XXX XXXXXX
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Print Name: Xxx Xxxxxxxx Print Name: Xxx Xxxxxx
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Title: VP Division General Manager Print Title: Sr. V.P.
RPAG - US & Canada
Motorola Execution Date: Sep-30-96 Reseller Execution Date: 9-23-96
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