Exhibit 10.14
A request for confidential treatment for portions of this exhibit has been filed
with the United States Securities and Exchange Commission. The portions for
which confidential treatment has been requested have been separately filed with
the commission. The xxxx "Confidential Treatment Requested" has been inserted at
all places within this Exhibit where information has been deleted.
AUTHORIZED AGENCY AGREEMENT
BETWEEN
CARRIER IDENTIFIED ON EXHIBIT B
AND
AGENT IDENTIFIED ON EXHIBIT B
THIS AGREEMENT IS ENTERED INTO BY AGENT IDENTIFIED ON EXHIBIT B, a (SEE
EXHIBIT B) corporation with its principal place of business at (SEE EXHIBIT B)
("AGENT") and CARRIER IDENTIFIED ON EXHIBIT B ("CARRIER"), a Georgia
corporation, having its principal place of business at SEE EXHIBIT B on behalf
of the entities listed on Exhibit A for the specific markets associated with
such entities as set forth on Exhibit A. Each entity in whose behalf CARRIER
contracts shall only contract for the market listed beside that entity's name.
In consideration of the mutual promises and covenants set forth herein,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Capitalized words and phrases used in this Agreement shall have the
following meaning:
1.1 Affiliate. A person, association, partnership, corporation or
joint-stock company, trust or other business entity ("Person") is an affiliate
of that person that directly or indirectly Controls, is Controlled by or is
under common Control with another Person. Affiliates also include Persons who
share the same facilities for their operations.
1.2 AGENT. The party defined as "AGENT" above and any sub-contractor,
employee, servant, Affiliate or agent of said party. The term "AGENT" as used
herein is applicable to one or more persons, a corporation or a partnership, as
the case may be, and the singular use includes the plural and the masculine and
neuter usages include the other and the feminine.
1.3 Area. The Metropolitan Statistical Area(s) ("MSA"), Rural Service
Areas(s) ("RSA"), Basic Trading Area ("BTA") or Metropolitan Trading Area
("MTA") as set forth in Exhibit A, within which CARRIER has or intends to apply
for regulatory authority to provide WRS and within which AGENT has the authority
to solicit and contract, on behalf of CARRIER, with Subscribers.
1.4 Wireless Radio Service. ("WRS"). Any and all services authorized by
the FCC under 47 Code of Federal Regulations, Parts 22 and 24.
1.5 Competing Service. WRS sold by anyone other than CARRIER. Competing
Service includes CARRIER WRS sold by resellers.
1.6 Control or Controlling Interest. Ownership of fifty-one percent
(51%) of the voting power of all classes of voting stock or fifty-one percent
(51%) of the beneficial interests in income and capital of an entity other than
a corporation.
1.7 Equipment. Mobile and portable radio units that are used by
Subscribers in conjunction with WRS and approved by the FCC.
1.8 FCC. The Federal Communications Commission.
1.9. Home System. The Wireless Service System on which the Subscriber
is a registered home Subscriber.
1.10 Marks. Trademarks, trade names, insignia, symbols, decorative
designs, or the like which CARRIER or its Affiliate owns or is licensed or
sublicensed to use in connection with Cellular Radio Service or products
relating thereto, and which CARRIER, in its sole discretion, determines that
AGENT is authorized to use.
1.11 Reseller. Any person, association, partnership, corporation or
joint-stock company, trust, and any other business entity which purchases bulk
quantities of WRS from CARRIER for resale distribution, directly or indirectly,
to ultimate users of WRS.
1.12 Roamer. A WRS user who takes the Equipment out of the range of the
Home System and receives cellular service in another system's coverage area.
1.13 Subagent. An entity or person with which AGENT has an agreement
for the enrollment of Subscribers to CARRIER's WRS through AGENT.
1.14 Subscriber. Any potential or actual customer who is the ultimate
user of WRS provided by CARRIER. However, for the purpose of calculating
compensation in Exhibit B, each WRS telephone number assigned to a customer of
CARRIER's WRS is deemed to be a separate Subscriber, regardless of how many WRS
telephone numbers may be used by that customer.
1.15 Usage. A period of time during which a Subscriber uses the
cellular system and incurs charges for such use.
ARTICLE II
APPOINTMENT OF AGENT
CARRIER hereby appoints AGENT, and AGENT hereby accepts the
appointment, as a nonexclusive, authorized agent of CARRIER to solicit and
contract on behalf of CARRIER with Subscribers for WRS in the Area, subject to
all of the terms and conditions hereof. AGENT recognizes and agrees that CARRIER
has the right to and may appoint other nonexclusive, authorized WRS agents in
the Area, including retailers and other business organizations as distributors
of WRS in the Area, and that CARRIER has the right to and may directly offer and
furnish WRS to Subscribers within the Area. AGENT recognizes and agrees that
CARRIER will market Equipment directly or indirectly through Affiliates. In
addition, AGENT recognizes that under current applicable FCC cellular rules,
CARRIER must sell its WRS to Resellers. AGENT is not entitled to any geographic
privileges under this Agreement and either CARRIER, other agents or both may
open retail facilities in close proximity to AGENT from which to sell WRS in
competition with AGENT.
AGENT agrees to act as CARRIER's agent in offering WRS to Subscribers.
All of such offerings shall be at the rates and under the terms and conditions
which CARRIER shall from time to time specify.
It is understood and agreed that Subscribers shall be customers of
CARRIER for WRS.
ARTICLE III
GENERAL OBLIGATIONS AND REPRESENTATIONS
3.1 General. AGENT acknowledges and agrees that AGENT has read and
understands the obligations imposed by the FCC upon WRS licensees such as
CARRIER as specified in Part 22 of the FCC's rules. AGENT acknowledges that it
has conducted an independent investigation of the WRS business that it will
conduct pursuant hereto. AGENT recognizes that entry into the WRS business as an
agent of CARRIER involves business risks and that AGENT's success in such
business will depend primarily upon its abilities and efforts. CARRIER expressly
disclaims the making of, and AGENT acknowledges that it has not received or
relied upon, any guaranty, express or implied, as to the amount of compensation
or other revenue that it may earn as a result of its agency relationship with
CARRIER.
3.2 Acceptance of Terms of Agreement. CARRIER and AGENT each
acknowledges that it has read this Agreement and understands and accepts the
terms, conditions and covenants contained herein as being reasonably necessary
to maintain CARRIER's high standards for WRS and to protect and preserve the
goodwill of CARRIER and of CARRIER's WRS and its Marks.
3.3 No Misrepresentations. AGENT represents to CARRIER, as an
inducement to its entry into this Agreement, that AGENT has made no
misrepresentations to CARRIER in its application for appointment as a
nonexclusive, authorized agent of CARRIER or in any other manner. Neither Party
has knowledge of any representations relating to this agency relationship by any
officer, employee or agent of the other that are contrary to the terms herein.
3.4 Lost Profits. AGENT and CARRIER mutually agree that neither shall
have any liability to the other for any lost profits or consequential damages
even if advised of the possibility of such damages.
3.5 Best Efforts. CARRIER and AGENT mutually agree that each will at
all times faithfully, honestly and diligently perform its obligations hereunder,
and that it will continuously exert its best efforts to promote and enhance the
use of CARRIER's programs.
ARTICLE IV
AGENT'S USE OF SUBAGENTS
AGENT agrees that in the event that AGENT enters into agreements with
Subagents, its use of such Subagents shall be subject to the following terms and
conditions:
4.1 Notice to CARRIER. AGENT shall, upon request of CARRIER, notify
CARRIER in writing of all Subagents, Subagents' principals and the terms of the
agreement AGENT has with each of its Subagents.
4.2 Information to be Provided to Subagents. AGENT shall inform
Subagents of al1 of AGENT's contractual obligations pursuant to this Agreement
and at all times keep each Subagent fully apprised of CARRIER's requirements
with respect to Subagents and any procedures relevant to Subagent's sale of WRS.
4.3 Activations. Subagents will have no direct communications with
CARRIER. All communications regarding activations, compensation, procedures, and
any other matters are to be handled solely by AGENT.
4.4 Training. AGENT shall be responsible for ensuring that all
Subagents are adequately trained at AGENT's premises. Such training shall be as
specified in Article V.
4.5 Use of Marks. Subagents are prohibited from using CARRIER's Marks
in a manner which identifies Subagents as representatives of CARRIER.
4.6 Compliance with Agreement. Subagents must at all times comply with
provisions of this Agreement which may relate to Subagents, including but not
limited to Articles VII, X, XI, XV, XVI, XVII, XXIV, and XXVIII and the
provisions of any Exhibit.
4.7 Responsibility of AGENT for Acts of Subagents. Subagents are
representatives of AGENT only. AGENT shall be fully responsible for the acts of
its Subagents. If CARRIER determines that any Subagent is not in compliance with
any of the terms and conditions stated herein which CARRIER determines are
applicable to Subagents. CARRIER may terminate this Agreement with AGENT.
ARTICLE V
TRAINING
5.1 Initial Training by CARRIER. CARRIER will provide initial training
to AGENT's employees regarding the processing of customer orders, credit policy
and communication of billing information between CARRIER and AGENT. The duration
of the training period will be up to two business days and will be conducted at
AGENT's work location or at a location in the Area prescribed by CARRIER.
Training manuals and user documentation will be provided by CARRIER.
Training will be provided at no cost to AGENT. Any incidental costs,
including travel and living expenses, incurred by AGENT relative to this
training will be the sole responsibility of AGENT or its employees. Any
additional training requested by AGENT will be provided at CARRIER's sole
discretion and at AGENT's expense.
5.2 Training Program. CARRIER has developed a training program for all
of AGENT's sales and sales support personnel with regard to the sales and sales
order process of CARRIER's WRS. Training will be conducted at AGENT's work
location or at a location in the Area prescribed by CARRIER. Training shall
include cellular technology, system operation, and service features. Unless
waived in writing by CARRIER, each salesperson shall complete the required
training within thirty (30) days of employment by AGENT. No salesperson is to
commence selling CARRIER's WRS until such training is complete. All expenses
incurred by AGENT's sales and sales support personnel participating in the
training program shall be borne by the AGENT. CARRIER agrees to pay its own
expenses regarding its personnel involved in conducting the training program.
In meeting AGENT's obligations under this Agreement, AGENT shall retain
and train salespersons in the enrollment of Subscribers, the operation of WRS,
and the sale, rental and lease of Equipment. Salespersons retained by AGENT must
meet criteria prescribed by CARRIER and shall, at the option of CARRIER, be
subject to continuing approval by CARRIER, which approval shall not be
unreasonably withheld.
ARTICLE VI
ADMINISTRATIVE PROCEDURES
6.1 Subscriber Enrollment. CARRIER may periodically prescribe various
reasonable procedures to be followed by AGENT and its salespersons in the
solicitation of Subscribers, presentations relating to WRS and enrollment of
Subscribers. Attached hereto as Exhibit C and incorporated herein are current
procedures for reducing fraud with which AGENT shall comply when activating
Subscribers. CARRIER will also furnish WRS literature and forms of agreements
AGENT must use in the enrollment of Subscribers. CARRIER may also furnish to
AGENT certain computer systems and software that will enable AGENT to
electronically activate Subscribers and generate contracts. Such computer
systems and software shall remain the property of CARRIER. AGENT agrees to
comply with all reasonable procedures prescribed by CARRIER from time to time
for the solicitation of Subscribers, presentations to Subscribers relating to
WRS and enrollment of Subscribers. AGENT shall communicate Subscriber enrollment
and billing information to CARRIER as prescribed by CARRIER.
6.2 Billing, Credit and Collections. Upon enrollment of a particular
Subscriber by AGENT, that Subscriber shall become a customer of CARRIER for WRS
and CARRIER shall xxxx such Subscriber and offer and furnish such customer
billing services as CARRIER deems appropriate. CARRIER shall be responsible for
collecting any charges for WRS unpaid by Subscribers. CARRIER shall be
responsible for approving Subscribers for credit. CARRIER shall not activate any
Subscriber unless and until such Subscriber has satisfactorily passed a credit
check and has paid any required deposit. AGENT shall not be entitled to
compensation for a Subscriber who fails to pass the credit check or to pay any
required deposit.
6.3 Rates. CARRIER shall, subject to any required regulatory approval,
determine and periodically modify rates for WRS and shall notify AGENT as soon
as practicable of each modification. AGENT acknowledges that from time to time
CARRIER may offer rates for WRS, by contract or otherwise, which rates may not
be made available to AGENT and its customers. AGENT shall take no action
inconsistent with and agrees to support CARRIER's efforts before regulatory
authorities regarding any modification of rates. Modifications of rates may
apply to both existing and future Subscribers. Upon enrollment, CARRIER may
solicit Subscribers to purchase other products, services, and additional
Wireless Service telephone numbers. CARRIER shall owe AGENT no additional
compensation for any such additional sales. AGENT shall not have any exclusive
right to sell to any Subscriber or group of Subscribers.
6.4 WRS Telephone Numbers. CARRIER will furnish WRS telephone numbers
for Subscribers subject to availability and technological capacity. In the event
technological changes occur which restrict or limit CARRIER's ability to furnish
WRS telephone numbers for Subscribers, CARRIER shall inform AGENT and CARRIER
shall have no liability to AGENT hereunder for the inability to furnish such
numbers.
6.5 Technological Changes. If technological changes change the size of
CARRIER's coverage area or impose restrictions on the use of a Subscriber's
Equipment, CARRIER will inform AGENT of such changes and AGENT will inform
Subscribers with whom AGENT comes into contact of such changes or restrictions.
Failure by AGENT to inform Subscribers of such changes will be considered a
material breach of this Agreement.
ARTICLE VII
DUTIES AND RESPONSIBILITIES OF AGENT REGARDING EQUIPMENT
7.1 General Responsibilities. AGENT agrees to sell Equipment to be used
by Subscribers of CARRIER's WRS. AGENT shall be responsible for the warranty
service for and installation and maintenance of such Equipment, either through
its own facility or by subcontracting with another facility. AGENT agrees to
offer only models of Equipment for sale that meet quality standards set by the
FCC and the manufacturer's recommendations for use of such Equipment. At
CARRIER's request AGENT agrees to submit to CARRIER for CARRIER's approval the
models of Equipment which it proposes to sell. AGENT agrees that CARRIER shall
have the absolute right to approve or disapprove any Equipment. CARRIER shall
not be obligated to pay any commission to AGENT for any Subscriber whom AGENT
enrolls on CARRIER's WRS with an unapproved FCC type Equipment, Equipment which
does not meet the manufacturer's recommendations, or Equipment which CARRIER has
not approved or disapproved.
Subscribers shall be customers of AGENT with respect to Equipment.
CARRIER shall have no responsibility to AGENT or Subscribers with respect to the
sale, installation, warranty service for or maintenance of Equipment. The
indemnification provisions of Article XXIX of this Agreement shall apply to any
claims or demands against CARRIER which relate to AGENT's sale of Equipment.
7.2 Inventory. AGENT agrees to maintain' an inventory of approved
models of Equipment sufficient to meet reasonably anticipated demand therefore
by Subscribers AGENT enrolls. Should AGENT sell Equipment to customers other
than Subscribers, AGENT agrees to allocate Equipment, installation, warranty and
maintenance service first to Subscribers and second, after satisfying in full
the demand of Subscribers, to other customers of AGENT.
AGENT may purchase Equipment from any available source, including
CARRIER. Such Equipment shall be of the style, appearance and quality as to be
adequate and suitable for use with CARRIER's WRS. Such Equipment will be sold in
accordance with all applicable federal, state and local laws, and the same shall
not reflect adversely upon the good name of CARRIER or any of its programs or
the Marks. AGENT acknowledges and agrees that CARRIER offers Equipment for sale
to those of its agents who meet CARRIER's credit criteria, as may be established
from time to time, as an accommodation to enable agents to meet the needs of
CARRIER's WRS customers. AGENT further acknowledges that CARRIER may from time
to time stock equipment that it does not sell to AGENT or that CARRIER will only
consign to AGENT for sale in conjunction with WRS. CARRIER shall not owe any
commission for Subscribers activated on Equipment that was originally sold by
CARRIER for use with Prepaid Service.
ARTICLE VIII
COMPENSATION
CARRIER shall pay compensation to AGENT in accordance with the
Compensation Schedule in Exhibit B attached hereto and incorporated herein,
which Schedule may be amended from time to time as set forth in Exhibit B.
Nothing herein shall prohibit CARRIER from offering from time to time rates,
promotions or additional service packages with reduced compensation for AGENT
(Reduced Compensation Plans). In the event such rates, promotions or service
packages are offered, AGENT shall be required to evidence in writing its consent
and agreement to the change in compensation in order to be eligible to offer
such rates, promotions or services to Subscribers. If AGENT fails to agree to
such change in compensation, AGENT shall not be paid any compensation for any
Subscriber enrolled on a Reduced Compensation Plan, and the amount of any
compensation paid for any Subscriber so enrolled, or who switches to a Reduced
Compensation Plan within [CONFIDENTIAL TREATMENT REQUESTED] days of initial
enrollment, shall be deducted from future compensation payable to AGENT, if any,
and if none, shall be paid by AGENT to CARRIER on demand. AGENT understands that
no compensation shall be paid unless AGENT complies with the terms and
conditions specified in this Agreement and the Compensation Schedule. AGENT
acknowledges that compensation paid and other terms and conditions for adding
Subscribers to CARRIER's WRS may vary among AGENT and other distributors of
CARRIER's WRS in CARRIER's sole discretion.
ARTICLE IX
GENERAL
AGENT acknowledges that CARRIER bases its commission payments on an
expectation that each Subscriber will use CARRIER's WRS. AGENT represents and
covenants that it will use its best efforts to encourage each Subscriber to use
CARRIER's WRS, and that under no circumstances will AGENT activate a cellular
telephone number if it knows or should have known that the Subscriber does not
intend to use CARRIER's WRS on a regular basis.
ARTICLE X
AGENT'S SALES FACILITIES
AGENT agrees that it will sell WRS and Equipment at sales facilities in the Area
and at such additional or substitute sales facilities which CARRIER approves in
writing from time to time during the term of this Agreement. Each of AGENT's WRS
sales facilities shall comply at all times during the term hereof with any
reasonable requirements which may be established by CARRIER for showroom and
display capacity, appearance, accessibility, and efficiency and shall, at
AGENT's expense, display such signage identifying AGENT's WRS business as
CARRIER may reasonably prescribe. AGENT shall submit for approval by CARRIER
such sales facilities, specifications and renderings of the business facility
(or part thereof to be utilized for AGENT's WRS business) as CARRIER designates,
approval of which will not be unreasonably withheld or withdrawn. At a minimum,
each sales facility must: be a local facility which is open to the public at
least eight (8) hours per day during normal business hours; be leased or owned
in AGENT's name; have a telephone with a number listed in the local directory
and with directory assistance in AGENT's name; and have at least one full-time
cellular sales representative. AGENT or AGENT's principals shall directly own a
Controlling Interest in each location at which AGENT's WRS business is conducted
pursuant to this Agreement, and shall operate such locations in AGENT's name.
AGENT shall not permit any other person or entity to sell any Competing Service
from such facility.
AGENT shall inform CARRIER in writing of any substitute or additional
sales facility prior to purchasing or entering into a lease agreement with
respect to such facility. AGENT agrees that CARRIER may make regular inspections
of AGENT's sales facilities to insure that each such facility is meeting
CARRIER's requirements. Failure to meet CARRIER's requirements within thirty
(30) days from the date of notice to AGENT of noncompliance with such
requirements may result in exclusion of that facility as an authorized sales
location or in termination of this Agreement.
ARTICLE XI
AGENT'S INSTALLATION AND MAINTENANCE FACILITIES
11.1 Facilities. If AGENT sells equipment to be mounted in a motor
vehicle, AGENT agrees to furnish high quality and prompt installation and
service for all such Equipment sold by AGENT to Subscribers. If AGENT sells a
model of Equipment not sold by CARRIER, AGENT shall provide warranty service for
such Equipment.
11.2 Personnel. Unless waived in writing by CARRIER, all of the
established facilities' installation, warranty and maintenance service WRS
personnel shall be required to obtain appropriate certification of training for
the Equipment AGENT sells. Further, AGENT shall assure that its personnel are at
all times technologically updated on all products AGENT sells.
11.3 Corrective Work by CARRIER. AGENT will be invoiced by CARRIER for
the cost of any and all corrective work performed on behalf of or by CARRIER
which is caused by AGENT's negligence or faulty installation, if such corrective
work is performed within one hundred twenty (120) days from the date of such
installation. If practical, CARRIER will notify AGENT prior to performing such
corrective work.
11.4 Failure to Meet CARRIER's Criteria. If AGENT's installation,
warranty and maintenance facilities do not meet CARRIER's criteria, or if
CARRIER has to invoice AGENT for more than one occurrence of faulty work,
CARRIER may terminate this Agreement.
11.5 Subcontracting. AGENT may delegate by contract the installation,
warranty and maintenance service obligations hereunder to a subcontractor, so
long as the subcontractor meets CARRIER's criteria, and obtains any approval
necessary from each manufacturer and/or distributor of an approved model of
Equipment to be sold by AGENT. Such delegation shall be by written agreement
between AGENT' and the subcontractor. Notwithstanding such agreement with a
subcontractor, AGENT shall remain primarily responsible under the terms of this
Agreement for all installation, warrant}- and maintenance service obligations.
In the event AGENT should elect to close, abandon, or cease selling
from any sales facility during the term of this Agreement, AGENT hereby grants
CARRIER a first right of refusal to assume the lease of such sales facility.
ARTICLE XII
ADVERTISING
AGENT agrees to advertise CARRIER's WRS throughout the Area. If AGENT
follows CARRIER's procedures concerning enrollment of a Subscriber, adheres to
applicable tariffs, and complies with the terms and conditions of this
Agreement, then, to the extent permitted by CARRIER's annual budget, CARRIER may
reimburse AGENT for advertising costs in accordance with CARRIER's Advertising
Guidelines, as such guidelines may be amended from time to time.
All advertising and promotion by AGENT shall be completely factual and
shall conform to the highest standards of ethical advertising. Samples of
advertising and marketing materials which AGENT is using or intends to use in
connection with WRS or products bearing CARRIER's Marks, and which have not been
prepared or previously approved by CARRIER, shall be submitted to CARRIER for
approval, which approval shall not be unreasonably withheld or withdrawn. If
written approval is not received by AGENT within three (3) days from the date of
confirmation of receipt by CARRIER of such materials, CARRIER shall be deemed to
have approved the materials. AGENT shall not use any advertising or marketing
materials that CARRIER has disapproved.
ARTICLE XIII
MARKS
13.1 List of Marks. CARRIER has published a list of Marks which AGENT
is authorized to use under this Agreement in conjunction with the sale of
CARRIER's WRS and products. CARRIER will periodically update the list of Marks
AGENT is authorized to use under this Agreement. The most current updated list
will always supersede any previously issued list. Such list will also be
supplemented with rules and regulations pertaining to the Marks which AGENT
agrees to follow.
13.2 Right to Use Marks: Value of Marks. AGENT acknowledges that its
right to use the Marks is derived solely from this Agreement and is limited to
the right to identify AGENT as an agent of CARRIER for the sale of WRS and to
identify products and services bearing the Marks which may be sold by AGENT.
AGENT agrees to comply with all rules and regulations pertaining to such Marks
prescribed by CARRIER from time to time during the term of this Agreement. AGENT
agrees to maintain the quality and nature of the goods and services associated
with the Marks as established by CARRIER. AGENT recognizes the great value of
the goodwill associated with the Marks, and acknowledges that it has no interest
in the Marks and all rights therein and goodwill pertaining thereto belong
exclusively to CARRIER and its Affiliates, and that the Marks have a secondary
meaning in the mind of the public. AGENT acknowledges and agrees that all usage
of the Marks by AGENT and any goodwill established thereby shall inure to the
exclusive benefit of CARRIER and its Affiliates and that this Agreement does not
confer any goodwill or other interests in the Marks upon AGENT. Any unauthorized
use of the Marks by AGENT, or any use not in compliance herewith, shall
constitute an infringement of the rights of CARRIER and its Affiliates in and to
the Marks. Use of the Marks by a Subagent of AGENT shall constitute an
infringement of the rights of CARRIER in and to the Marks.
13.3 Use of Marks by Agent. AGENT shall use the Marks with such words
qualifying or identifying the agency relationship of CARRIER and AGENT as
CARRIER from time to time reasonably prescribes. AGENT shall not use the Marks
as part of any corporate or trade name or with any prefix, suffix or other
modifying words, terms, designs or symbols, or in any modified form, nor may
AGENT use the Marks in connection with the sale of any unauthorized product or
service or in any other manner not expressly authorized by this Agreement or
separately in writing by CARRIER. AGENT agrees to display the Marks on
stationery and other forms used in its WRS business in the manner prescribed by
CARRIER, to give such notices of registration as CARRIER specifies and to obtain
such fictitious or assumed name registrations as may be required under
applicable law. Misuse of the Marks by AGENT or its Subagents may result in
termination of this Agreement or such other remedy, including withholding of
commissions, as CARRIER may establish from time to time in its Advertising
guidelines.
13.4 Modification of Marks. If it becomes advisable at any time in
CARRIER's sole discretion for AGENT to modify or discontinue use of any Xxxx or
substitute one or more additional trade or service marks to identify its
relationship with CARRIER or any Equipment, AGENT agrees to comply therewith
within a reasonable time after notice thereof by CARRIER and the sole
obligations of CARRIER in any such event shall be to reimburse AGENT for the
out-of-pocket costs, if any, of complying with this obligation and to indemnify
AGENT as provided for in Paragraph 13.5 below. In addition, AGENT shall replace
identification signs or identification material with new signs or identification
material should CARRIER agree to pay the cost of doing so.
13.5 Protection of Rights in the Marks. AGENT agrees that it will not
during the term of this Agreement, or thereafter, attack the title or any rights
of CARRIER or its Affiliates in and to the Marks. CARRIER hereby indemnifies
AGENT and undertakes to hold AGENT harmless against any damages and costs from
claims or suits arising out of the use by AGENT of the Marks as authorized in
this Agreement, provided that prompt notice is given to CARRIER of any such
claim or suit and provided further, that CARRIER or its Affiliates shall have
the option to undertake and conduct the defense of any suit so brought and that
no settlement of any such claim or suit shall be made by AGENT without the prior
written consent of CARRIER.
AGENT agrees to assist CARRIER or its Affiliates and CARRIER agrees to
reimburse AGENT for all associated reasonable costs to the extent necessary in
the procurement of any protection or to protect any of CARRIER's or its
Affiliates rights to the Marks, and CARRIER or its Affiliates, if it or they so
desire, may commence or prosecute any claims or suits in its own name or that of
its Affiliates or in the name of AGENT with AGENT's approval or join AGENT as a
party thereto. When known, AGENT shall notify CARRIER in writing of any
infringements or imitations by others of the Marks which are the same as or
similar to those covered by this Agreement. CARRIER shall have the sole right to
determine whether any action shall be taken on account of any such infringements
or imitations. AGENT shall not institute any suit or take any action on account
of any such infringement or imitations without first obtaining the written
consent of CARRIER.
ARTICLE XIV
RULES AND PROCEDURES
AGENT agrees to comply, as applicable, with Part 22 of the FCC's rules,
all tariffs, other governmental rules, and procedures reasonably prescribed from
time to time by CARRIER relating to the sale of WRS, the sale, warranty service
and repair of Equipment and the conduct of AGENT's WRS business hereunder, all
of which shall constitute provisions of this Agreement as if fully set forth
herein. All references herein to this Agreement shall include all such tariffs,
rules and procedures. CARRIER may, at its option, incorporate such tariffs,
rules and procedures in one or more Operations Manuals or other written form.
Except as to any liabilities covered by AGENT's insurance, CARRIER agrees to
indemnify and hold AGENT harmless against liabilities from and costs of suits or
claims arising out of AGENT's actions or inactions which are required by CARRIER
in writing for AGENT's compliance with rules and procedures prescribed by
CARRIER in accordance with this paragraph. In no event shall CARRIER indemnify
and hold AGENT harmless against liabilities from and costs of suits or claims
arising out of AGENT's actions or inactions unless CARRIER has required in
writing such actions or inactions.
ARTICLE XV
COMPLIANCE WITH LAWS AND GOOD BUSINESS PRACTICES
15.1 Compliance with CARRIER Criteria, Laws and Regulations. AGENT
shall secure and maintain in force all licenses and permits required by AGENT
and its employees in the enrollment of Subscribers and the sale, installation
and maintenance of Equipment, including without limitation all required FCC
permits and certifications. AGENT shall comply with all CARRIER installation,
warranty and maintenance criteria, and shall conduct its business in full
compliance with all laws, ordinances and regulations applicable to AGENT's
business. AGENT shall not engage in any activity which, in the judgment of
CARRIER's legal counsel, would cause AGENT and/or CARRIER to be in violation of
any requirement, rule, decision, law, regulation, judgment or order of any state
or Federal governmental agency or court. CARRIER shall offer WRS in accordance
with applicable rules, regulations, statutes and decisions governing WRS.
AGENT shall maintain its business on a sound financial basis and comply
with all legal obligations to CARRIER, to AGENT's employees, suppliers, lenders,
lessors, and to federal, state and municipal authorities, including but not
limited to tax authorities. AGENT shall maintain all real and personal property
used in connection with its WRS business free of all liens and encumbrances of
every kind or character which may impair or jeopardize the AGENT's conduct of
its business.
AGENT shall comply, at its own expense, with the provisions of all
applicable municipal requirements and those state and federal laws applicable to
AGENT as an employer of labor or otherwise. AGENT expressly agrees not to
discriminate against any employee or applicant for employment because of race,
creed, color, national origin or sex. The provisions of Executive Order No.
11246, as amended, are incorporated herein by reference. AGENT will fully comply
with the provisions of the Federal Occupational Safety and Health Act of 1970
and any rules and regulations issued pursuant to such Act.
15.2 Standards of Conduct. AGENT agrees to refrain from any business or
advertising practice which may be injurious to the business of CARRIER and the
goodwill associated with the Marks.
15.3 Notification of Actions Involving Agent. AGENT shall notify
CARRIER in writing within five (5) days of the commencement of any material
action, suit or proceeding, and of the issuance of any order, writ, injunction,
award or decree of any court, agency or other governmental instrumentality,
involving AGENT or any business conducted by AGENT. Notwithstanding any of the
foregoing provisions of this paragraph, a default by AGENT with respect to such
provisions shall be construed as a breach if it has a material and adverse
impact upon the AGENT's ability to furnish the services for which it has become
obligated under this Agreement.
ARTICLE XVI
INSURANCE
A. AGENT, at AGENT's expense, shall maintain during the term
of this Agreement, all insurance and/or bonds required by law or this Agreement,
including but not limited to:
(i) Adequate Workers Compensation and related
insurance as prescribed by law of any state in which the work is to be
performed;
(ii) Employer's Liability insurance with limits of
not less that $100,000 each accident/$100,000 each employee by disease/$500,000
policy limit by disease;
(iii) Commercial General Liability insurance,
including but not limited to contractual liability, broad form property damage
and premises/completed operations coverage with limits of not less than
$1,000,000 per occurrence and in the aggregate for bodily injury, including
death, and property damage:
(iv) If the use of motor vehicles is required,
Business Auto coverage for all owned, non-owned, hired and leased vehicles with
limits of at least $1,000,000 per occurrence and in the aggregate for bodily
injury, including death, and property damage; and
(v) All Risks Property insurance on the Agent's
property, tools and equipment used and necessary in the performance of services
under this contract.
B. The General Liability policy required herein shall name
CARRIER as an additional insured with respect to work performed hereunder.
Completed operations coverage must be maintained for one year after the
completion of the work.
C. AGENT shall also require subagents, if any, who may enter
upon CARRIER's premises, to maintain the insurance coverage required herein and
to furnish CARRIER certificates of insurance or adequate proof of such
insurance. Any non-compliance with the insurance provisions of this Agreement on
the part of any Agent or subagent shall be the sole responsibility of the AGENT
who will be held liable for the performance or non-performance of the subagent.
D. All insurance policies required of AGENT and subagents
shall contain a provision stating the name and address of CARRIER and that
CARRIER is to be notified in writing by the insurer at least thirty (30) days
prior to cancellation of, or any material change in, the policy.
E. AGENT shall, prior to the start of work and upon the
renewal of each line of coverage required herein, furnish certificates of
insurance or adequate proof of the foregoing insurance to CARRIER. AGENT shall
also furnish a Certificate of Insurance within thirty (30) days of any request
by CARRIER.
F. All policies shall be endorsed to provide primary coverage
and not be contributing to or in excess of any similar coverage.
G. CARRIER may at any time and with ninety (90) days prior
notice to AGENT require AGENT or its subagents to increase the amount of
coverage of any type of insurance to reflect inflation, higher damage awards or
comparable factors which make the above limits insufficient to cover AGENT's or
subagents" liabilities and Agent's indemnification of CARRIER under this
Agreement.
H. All policies required herein shall be maintained with
insurers acceptable to CARRIER. CARRIER retains the right to disallow coverage
from any insurer that does not maintain a rating from A.M. Best Company of B++
or higher.
I. Should insurance policy limits be exhausted or should the
AGENT or its subagents fail to maintain the required insurance coverages, the
AGENT or its subagents will in no way be released from liability to CARRIER
should a loss occur.
ARTICLE XVII
AGENT'S BUSINESS RECORDS
AGENT agrees to create and to maintain at its principal office and to
preserve for five (5) years from the date of their preparation full, complete
and accurate records of its business conducted pursuant to this Agreement. At
CARRIER's request or upon prior notice to AGENT, AGENT also agrees to have
available at AGENT's premises records of its Subagents conforming to the
requirements imposed upon AGENT by this Article XVII. Such records must include,
for example, but not be limited to, records of all WRS enrollment and Equipment
sales, installation and repairs performed at AGENT's facilities. Such records
may be audited by CARRIER at reasonable times after reasonable notice to AGENT.
ARTICLE XVIII
RELATIONSHIP OF CARRIER AND AGENTS
With the sole exception of the Subscribers enrolled by AGENT for the
account of CARRIER, with respect to which AGENT acts as agent of CARRIER and
owes CARRIER the fiduciary and other obligations of an agent to its principal,
CARRIER and AGENT acknowledge and agree that their agency relationship arising
from this Agreement does not constitute or create a general agency, joint
venture, partnership, employment relationship or franchise between them. In all
dealings with Subscribers, public officials and others, AGENT shall
conspicuously identify itself as an agent of CARRIER in the provision of WRS and
otherwise as an independent business and shall place such notices of its
independent ownership of its business on such forms, stationery, advertising and
other materials as CARRIER may reasonably require from time to time. CARRIER has
not authorized or empowered AGENT to use the Marks except as herein provided and
AGENT shall not employ any Xxxx in signing any contract, lease, mortgage,
purchase agreement, negotiable instrument or other legal obligation, or in a
manner that may result in liability of CARRIER (or its Affiliates) for any
indebtedness or obligation of AGENT. Unless specifically authorized in writing,
neither CARRIER nor AGENT shall make any express or implied agreements,
guarantees or representations, or incur any debt, in the name of or on behalf of
the other, except as otherwise set forth herein.
AGENT agrees that CARRIER has no fiduciary obligations to AGENT. AGENT
acknowledges that modern business parlance often includes words such as
"partner," "joint venture," "partnership," and words of similar import to
describe parties to business relationships, but those words have no legal import
and create no obligation.
Neither CARRIER nor AGENT shall be obligated by or have any liability
under any agreements or representations made by the other party that are not
expressly authorized hereunder, nor shall CARRIER be obligated for any damages
to any person or property directly or indirectly arising out of the WRS business
conducted by AGENT pursuant hereto, whether caused by AGENT's negligent or
willful action or failure to act, unless such damage is proximately caused by
CARRIER or arises out of AGENT's compliance with the rules or procedures
prescribed in writing by CARRIER pursuant to this Agreement.
ARTICLE XIX
AGENT'S PERSONNEL AND SUBAGENTS NOT DEEMED CARRIER'S EMPLOYEES
OR AGENTS
The parties agree that personnel employed by AGENT to perform services
under this Agreement and Subagents of AGENT are not CARRIER employees and AGENT
assumes full responsibility for their acts. Personnel employed by AGENT,
subcontractors of AGENT and subagents shall be informed that they are not
entitled to the provisions of any of CARRIER's employee benefits. With respect
to such personnel, AGENT shall have sole responsibility for supervision, daily
direction and control. AGENT shall be responsible for worker's compensation,
disability benefits, unemployment insurance and withholding and remitting income
and social security taxes for said personnel, including contributions from them
as required by law.
AGENT warrants it has an appropriate agreement with all persons whose
services AGENT may require sufficient to enable it to comply with all provisions
of this Agreement.
ARTICLE XX
ASSIGNMENT
This Agreement is fully assignable by CARRIER.
AGENT acknowledges that CARRIER has entered into this Agreement in reliance upon
the character, business experience and ability of AGENT and its owner(s) and
that the rights and duties created by this Agreement are personal to AGENT and
its owner(s). Therefore, neither this Agreement nor a Controlling Interest in
the ownership of AGENT may be voluntarily, involuntarily, directly or indirectly
assigned, or otherwise transferred (including, without limitation, by transfer
of capital stock or partnership interests, by merger or consolidation, by
issuance of additional securities representing an ownership interest in AGENT or
convertible thereto, or, in the event of the death of a shareholder or partner
of AGENT, by will, in declaration of or transfer in trust or the laws of
interstate succession) except as to transfers between existing shareholders of
AGENT as of the date of this Agreement, without the written approval of CARRIER,
which will not be unreasonably withheld, subject to such reasonable conditions
as CARRIER deems necessary. Any assignment or transfer without approval or which
is not expressly subject to the written approval of CARRIER shall constitute a
breach hereof and convey no rights or interests herein.
ARTICLE XXI
TERM OF AGENCY RELATIONSHIP
The term of this Agreement shall commence on the date shown on Exhibit
B and end on December 31, 2003. AGENT shall provide to CARRIER written notice of
the date on which AGENT initiates WRS operations in the Area. This Agreement
shall be effective only after its execution by an officer or other authorized
employee of both AGENT and CARRIER.
ARTICLE XXII
TERMINATION OF AGREEMENT
22.1 Termination by AGENT. If AGENT is in substantial compliance with
this Agreement and CARRIER materially breaches this Agreement and fails to cure
such breach within thirty (30) days after written notice thereof is delivered to
CARRIER, AGENT may terminate this Agreement effective thirty (30) days after
delivery to CARRIER of written notice.
22.2 Termination by CARRIER for Regulatory Reasons. CARRIER shall have
the right to terminate this Agreement effective upon thirty (30) days' written
notice in the event that:
A. the FCC's wireless rules are not continued in substantially
the same form and such change has a material adverse impact on CARRIER's ability
to conduct its business in the Area;
B. regulatory approval empowering CARRIER or an Affiliate to
construct and provide WRS in the Area is granted or modified subject to terms
and conditions unacceptable to CARRIER or an Affiliate, or is granted under
terms and conditions which, in CARRIER's sole opinion, materially affect the
intended purpose of this Agreement;
C. regulatory authorization of the Compensation Schedule or
this Agreement is made subject to terms and conditions unacceptable to CARRIER
or its Affiliates; or
D. AGENT or any Affiliate is granted regulatory authority to
construct or operate WRS in any area where CARRIER or any Affiliate has also
been granted such regulatory authority.
22.3 Termination for Cause.
A. In addition to other rights of termination set forth in
this Agreement, CARRIER shall have the right to terminate this Agreement for
cause effective upon delivery of notice of termination to AGENT, if AGENT (or
one or more of its owners and Affiliates):
(i) has made any material misrepresentation or
omission in its application to establish an agency relationship with CARRIER or
is arrested for, convicted of or pleads no contest to a felony or other crime or
offense;
(ii) makes an unauthorized assignment of this
Agreement or makes an assignment of this Agreement that is not expressly subject
to the written approval of CARRIER;
(iii) receives a notice of violation of the terms or
conditions of any license or permit required by AGENT or its employees in the
conduct of AGENT's WRS business and fails to correct such violation, or to
terminate the employment of such employee(s), within the time period specified
in such notice, if any, or within thirty (30) days after receipt of such notice,
whichever is earlier; or
(iv) sells a Competing Service or suffers or permits
anyone else to sell a Competing Service at any Sales Facility of AGENT.
B. CARRIER shall also have the right to terminate this
Agreement if AGENT:
(i) fails to comply with any material provision of
this Agreement, or any tariff relating to WRS, and does not correct such failure
within thirty (30) days after written notice of such failure to comply is
delivered to AGENT; or
(ii) fails on two or more separate occasions within
any period of six (6) consecutive months to comply with any material provision
of this Agreement, or any tariff relating to WRS, whether or not such failures
to comply are corrected after notice thereof is delivered to AGENT.
C. CARRIER shall also have the right to terminate this
Agreement if CARRIER determines, in its reasonable discretion, that AGENT has
inflated or otherwise manipulated its count of Gross Additional Customers by
falsifying applications, adding nonexistent Subscribers, adding Subscribers who
do not use minimal amounts of airtime, adding Subscribers which in CARRIER's
sole opinion do not constitute new Subscribers, or by any other means or
methods.
D. This Agreement shall automatically terminate upon AGENT
closing its WRS Sales Facilities in the Area.
22.4 Termination by Either Party. Either party shall have the right to
terminate this Agreement effective upon written notice if:
A. the other party makes an assignment for the benefit of
creditors;
B. an order for relief under Title 11 of the United States
Code is entered by any United States Court against the oilier party; or
C. a trustee or receiver of any substantial part of the other
party's assets is appointed by any Court.
ARTICLE XXIII
OBLIGATIONS OF AGENT UPON TERMINATION OR EXPIRATION
AGENT agrees that upon the expiration or termination of this Agreement,
AGENT and its owner(s) and Affiliates will: (1) not thereafter, use any actual
or similar Marks, or any actual or similar trade name, service xxxx, trademark,
logo, insignia, symbols or decorative designs theretofore used by AGENT in the
conduct of its WRS business, in any manner or for any purpose except that AGENT
and its owner(s) may use or continue to use any trade name, service xxxx, logo,
insignia, symbols or decorative designs AGENT or its owner(s) used in any
business prior to the date of this Agreement: and will not utilize for any
purpose any actual or similar trade name, trade or service xxxx or other
commercial symbol or in any manner, identify itself or any business as
associated with CARRIER or an Affiliate of CARRIER; (2) remove at AGENT's
expense any signage containing any Xxxx; (3) return to CARRIER all advertising
and marketing materials, forms, signage, and other materials containing any Xxxx
or otherwise identifying or relating to CARRIER's WRS business in the Area and
cancel any pending orders for advertising which may be canceled without penalty;
(4) take such action as may be required to cancel all fictitious or assumed name
or equivalent registrations relating to any Xxxx; or authorize CARRIER, and any
officer of CARRIER, as AGENT's attorney in fact, to take such actions as may be
required to cancel such fictitious or assumed name or equivalent registrations,
and if AGENT fails or refuses to do so, all governmental agencies ^administering
fictitious or assumed name or equivalent registrations may accept and rely upon
appropriate documents executed by CARRIER or its officer canceling any such
registration; (5) destroy any list of names, addresses and all other relevant
information AGENT then possesses concerning Subscribers of WRS AGENT had
enrolled in the Area: (6) covenant to CARRIER that AGENT will not attempt to
refer current CARRIER WRS Subscribers to any competitive entity providing
cellular radio service; (7) return all Equipment belonging to CARRIER within ten
(10) days after termination or expiration; and (8) notify the applicable
telephone company in the Area of the termination or expiration of AGENT's right
to use any telephone number used solely by the WRS business conducted by AGENT
hereunder, execute such notices and documents as may be required by any
applicable telephone company or an\ applicable telephone directory listing
agency to reflect the termination of all association of AGENT with any such
telephone numbers and directory listings and authorize or permit the removal of
such telephone numbers from each AGENT's business facilities in the Area. AGENT
authorizes CARRIER (or its nominee), and hereby appoints CARRIER, and any
officer or nominee of CARRIER, as AGENT's attorney in fact, to execute any and
all notices and documents required by any telephone company or listing agency to
reflect the termination of all association of AGENT with any such telephone
numbers or directory listings and authorize or permit the removal of such
telephone numbers from each of AGENT's business facilities, and if AGENT fails
or refuses to do so, each telephone company and listing agency may accept such
notice or document executed by CARRIER or its officers or nominee, or this
Agreement, as conclusive of the exclusive rights of CARRIER to terminate such
telephone numbers and directory listings.
ARTICLE XXIV
COVENANTS NOT TO COMPETE
24.1 No Competition During Term of Agreement; Exclusivity. AGENT
acknowledges that CARRIER has granted the rights herein in material part in
consideration of AGENT's agreement to act exclusively for C'ARRIER. As a
consequence, during the term of this Agreement (and any extensions thereof),
AGENT agrees that AGENT, any affiliate, or persons owning a controlling interest
in AGEN I' or an Affiliate will not, directly or indirectly, (a) solicit, sell,
offer or accept offers for a Competing Service in the Area, (b) induce or refer
any actual or prospective Subscriber of CARRIER's WRS to subscribe to a
Competing Service in the Area, (c) provide any subscriber leads to a Competing
Service in the Area, sell Equipment intended to be activated on a Competing
Service or (d) activate Subscribers through a reseller or act as a reseller of
WRS.
24.2 Following Termination of Agreement. If this Agreement expires by
its terms, or is terminated by CARRIER for cause in accordance with the
provisions of this Agreement or by AGENT without cause, or if this Agreement is
transferred or assigned, the covenant not to compete in Paragraph 24.1 above
shall extend for a period of six (6) months from the effective date of such
expiration, termination or assignment. If, however, prior to its expiration,
this Agreement is terminated by AGENT for cause, the "covenants not to compete"
do not apply.
ARTICLE XXV
SEVERABILITY AND SUBSTITUTION OF VALID PROVISIONS
Except as expressly provided to the contrary herein, each term and condition of
this Agreement, and any portion thereof, shall be considered severable and if,
for any reason, any such provision hereof is held to be invalid, contrary to or
in conflict with any applicable present or future law, regulation or public
policy in a final, unappealable ruling issued by any court, agency or tribunal
with competent jurisdiction in a proceeding to which CARRIER is a party, that
ruling shall not impair the operation of, or have any other effect upon, such
other portions of this Agreement as may remain otherwise enforceable, which
shall continue to be given full force and effect and bind the Parties hereto,
although any portion held to be invalid shall be deemed not to be a part of this
Agreement from the date the time for appeal expires, if AGENT is a party
thereto, otherwise upon AGENT's receipt of a notice of nonenforcement thereof
from CARRIER.
To the extent that Article XXIII or XXIV hereof contains or imposes a
restriction upon AGENT that is deemed unenforceable by virtue of its scope in
terms of area, business activity prohibited and/or length or time, but could be
enforceable by reducing any or all thereof, AGENT and CARRIER agree that same
shall be enforced to the fullest extent permissible under the laws and public
policies applied in the jurisdiction in which enforcement is sought. CARRIER and
AGENT shall mutually agree to a modification of any invalid or unenforceable
term or condition of Article XXIII or XXIV to the extent required to be valid
and enforceable. Such modifications to this Agreement shall be required only in
the area directly affected by any such ruling.
ARTICLE XXVI
WAIVER OF OBLIGATIONS
CARRIER or AGENT may by written instrument unilaterally waive or reduce
any obligation of or restriction upon the other under this Agreement, effective
upon delivery of written notice thereof to the other and such other effective
date stated in the notice of waiver.
Whenever this Agreement requires the consent of a Party, such request
shall be in writing and no consent may be unreasonably withheld. All consents or
withholding of consent with reasons therefore shall be in writing. Neither Party
makes any guarantees upon which the other may rely, and assumes no liability or
obligation to the other, by granting any waiver, approval or consent to the
other, or by reason of any neglect, delay or denial of any request therefore.
Any waiver granted by either Party shall be without prejudice to any other right
that Party may have, will be subject to continuing review, and may be revoked,
at the waiving Party's sole discretion, at any time and for any reason,
effective upon delivery to the other often (10) days' prior written notice.
CARRIER and AGENT shall not be deemed to have waived, or impaired any
right, power or option reserved by this Agreement (including, without
limitation, the right to demand exact compliance with every term, condition and
covenant herein, or to declare any breach hereof to be a default and to
terminate this Agreement prior to the expiration of its term), by virtue of any
custom or practice of the Parties at variance with the terms hereof or any
failure, refusal or neglect of CARRIER or AGENT to exercise any right under this
Agreement or to insist upon exact compliance by the other with its obligations
hereunder, including, without limitation, any rule or procedure, or any waiver,
forbearance, delay, failure or omission by CARRIER to exercise any right, power
or option, whether of the same, similar or different nature, with respect to one
or more other authorized agents.
ARTICLE XXVII
RIGHTS OF PARTIES ARE CUMULATIVE
The rights of CARRIER and AGENT hereunder are cumulative and no
exercise or enforcement by CARRIER or AGENT of any right or remedy hereunder
shall preclude the exercise or enforcement by CARRIER or AGENT of any other
right or remedy hereunder, of which CARRIER or AGENT is entitled by law to
enforce.
ARTICLE XXVIII
CONFIDENTIAL INFORMATION
Any specifications, drawings, sketches, models, samples, data, computer
programs or documentation, or technical or business information ("Information")
furnished or disclosed by CARRIER to AGENT hereunder shall be deemed the
exclusive property of CARRIER, including title to copyright in all copyrightable
material, and, when in tangible form, shall be returned to CARRIER upon
completion or terminal ion of authorized work.
Further, the Parties hereby agree that Subscriber lists and related
information or data are the exclusive property of CARRIER and are to be used by
AGENT, its officers, employees, Subagents, subcontractors and servants solely in
the performance of its duties and obligations hereunder.
Unless any confidential information was previously known to AGENT free
of any obligation to keep it confidential, or has been or is subsequently made
public by CARRIER or a third party, it shall be held in confidence by AGENT,
shall be used only for the purposes hereunder, and may be used for other
purposes only upon such terms and conditions as may be mutually agreed upon in
writing.
If AGENT is served with process to obtain Information, AGENT shall
immediately notify CARRIER, which shall, in addition to AGENT's efforts, if any,
have the right to seek to quash such process.
Unless marked "proprietary", any Information furnished, or disclosed by
AGENT to CARRIER shall not obligate CARRIER to hold such Information in
confidence.
CONSUMER PROPRIETARY NETWORK INFORMATION.
It is the policy of CARRIER and its affiliates to protect all
proprietary information belonging to or in control of CARRIER, including,
without limitation, information about its customers and the services and
products provided to those customers by CARRIER.
It is the policy of CARRIER to treat all customer proprietary network
information (CPNI) in a confidential manner. Further, it is the policy of
CARRIER to limit disclosure and the use of CPNI in a manner consistent with the
requirements of the CPNI Rules. All employees of AGENT who may have access to
C'PNI shall receive CPNI rules training, including, without limitation, with
respect to when they are and are not authorized to use CPNI. No employee of
AGENT shall gain access to any CPNI unless such employee has attended training.
Use of or access to CPNI without having attended CPNI Rules training or
uses CPNI in any manner which is contrary to the CPNI rules shall be a material
breach of this Agreement and in the event of such breach, CARRIER may terminate
this Agreement upon ten (10) days' written notice to AGENT.
ARTICLE XXIX
INDEMNITIES
29.1 Indemnification of CARRIER. AGENT agrees to indemnify, defend and
hold CARRIER harmless against any liability for any claims or demands arising
out of the conduct of business by AGENT that are the result of AGENT's negligent
or willful act or failure to act, including, but not limited to, any claims or
demands (a) by AGENT's subagents, (b) by AGENT's employees or any other persons,
including but not limited to Subscribers, for bodily injury, damage to property
or other damages caused by the acts or omissions of the AGENT or its
subcontractors, or the employees or agents of any of them, and (c) by AGENT's
employees under worker's compensation or similar laws. AGENT also agrees to
indemnify, defend and hold CARRIER harmless against any liability arising out of
any allegedly unauthorized use of a trademark, patent, copyright, process, idea,
method or devise by AGENT covered by this Agreement.
If two or more persons are at any time AGENT hereunder, whether or not
as partners or joint venturers, their obligations and liabilities to CARRIER
shall be joint and several.
29.2 Procedures with Respect to Indemnification. All indemnities
created in this Agreement shall include indemnification of Indemnitee's
Affiliates, directors, officers, employees, agents, successors and assigns and
their heirs, legal representatives, and assigns thereof. The indemnification
shall be for all claims arising out of the specific event referred to in this
Agreement which is covered by the indemnification, including all obligations,
actual and consequential damages and costs reasonably incurred in the defense of
any claim, including without limitation reasonable accountant's, attorneys', and
expert witness fees, costs of investigation and proof of facts, court costs, and
other litigation expenses, including, but not limited to, travel and living
expenses. Written notice of claim shall be forwarded promptly by the Indemnitee
to the Indemnitor and there shall be no settlement of the claim without the
consent of the Indemnitor, which consent shall not be unreasonably withheld.
Indemnitee shall have the right to defend any such claim in which it is named as
a defendant at its own cost and expense. The indemnities created by this
Agreement shall continue in full force and effect subsequent to and
notwithstanding the expiration or termination of this Agreement. Provisions for
indemnification in this Agreement are not in lieu of and do not supplant
insurance coverage required in the Agreement, and are not intended to act as
insurance.
ARTICLE XXX
MUTUAL GENERAL RELEASE
AGENT and CARRIER, subject to the exceptions set forth below, shall and
do hereby release and discharge each other and their parents, partners,
officers, directors, employees and assigns from any and all claims, losses,
liabilities, obligations, damages and actions of any kind, known or unknown, up
to the date hereof.
This Mutual Release shall not apply to the following claims,
liabilities or obligations:
1. CARRIER's right to offset against commissions owed to AGENT any
amounts due and owing to CARRIER for equipment sold to AGENT by CARRIER or
moneys owed to CARRIER for any other reason:
2. CARRIER's right to offset against commissions owed to AGENT any
amounts (a) determined by CARRIER to be due as the result of fraud by AGENT; (b)
determined by CARRIER to be due to CARRIER by AGENT for Subscribers that fail to
remain on service for the chargeback period required by the agreement between
CARRIER and AGENT; and (c) determined by CARRIER to be due to CARRIER by AGENT
for payments due under Exhibit B, Section I - Up-Front Compensation - Paragraph
H;
3. Determined by CARRIER to be due to AGENT for residual or other
compensation to which AGENT may be entitled.
ARTICLE XXXI
ARBITRATION
Independent Arbitration. (PLEASE READ THIS PARAGRAPH CAREFULLY. IT AFFECTS
RIGHTS THAT YOU MAY OTHERWISE HAVE.)
(a) AGENT and CARRIER shall use their best efforts to settle any
dispute or claim arising from, or relating to this Agreement.
To accomplish this, they shall negotiate with each other in
good faith. If AGENT and CARRIER do not reach agreement within
30 clays, instead of suing in court, AGENT and CARRIER agree
to arbitrate any and all disputes and claims (including but
not limited to claims based on or arising from an alleged
tort) arising out of or relating to this agreement, to any
prior agreement, or any subsequent agreement for cellular
products or service between CARRIER and AGENT or any of
CARRIER's or AGENT's affiliates or predecessors in interest.
(b) The arbitration of any dispute or claim shall be conducted in
accordance with the Wireless Industry Arbitration Rules ("WIA
Rules") as modified by this Agreement and as administered by
the American Arbitration Association ("AAA"). The WIA rules
and fee information are available from CARRIER or the AAA upon
request.
(c) AGENT and CARRIER acknowledge that this Agreement evidences a
transaction in interstate commerce and that the United States
Arbitration Act and Federal Arbitration law shall govern the
interpretation and enforcement of, and proceedings pursuant to
this or a prior Agreement.
(d) Unless AGENT and CARRIER agree otherwise, the location of any
arbitration shall be in Atlanta, Georgia.
(e) AGENT and CARRIER agree that no arbitrator has the authority
to: (1) award relief in excess of what this or a prior
agreement provides; (2) award punitive damages or any other
damages not measured by the prevailing Party's actual damages;
or (3) order consolidation or class arbitration.
(f) Except as otherwise provided herein, all fees and expenses of
the arbitration shall be equally borne by CARRIER and AGENT.
(g) The arbitrator(s) must give effect to the limitations on
AGENT" s liability as set forth in this or a prior Agreement,
any applicable tariff, law, or regulation.
(h) In any arbitration utilizing the rules applicable to
Large/Complex cases, as defined under the WIA rules. I he
arbitrators must also apply the Federal Rules of Evidence, and
the losing Party may have "the award reviewed in accordance
with the review procedures set forth in the WIA rules.
(i) AGENT and CARRIER acknowledge and agree that each is waiving
its respective right to a trial by jury, both acknowledge that
arbitration is final and binding and subject to only very
limited review by a court. If for some reason this arbitration
clause is at some point deemed inapplicable or invalid,
CARRIER and AGENT agree to waive, to the fullest extent
allowed by law," any trial by jury, in such case, a judge
shall decide the subject dispute or" claim. AGENT, CARRIER and
Arbitrator(s) shall not disclose the existence, content, or
results of any arbitration. Judgment on the award rendered by
the arbitrator(s) may be entered in any court having
jurisdiction thereof.
ARTICLE XXXII
MISCELLANEOUS
32.1 Governing Law. Except to the extent governed by United States law
that preempts state law, this Agreement shall be interpreted under and governed
by the laws of the State of Georgia.
32.2 Testimony. Matters relating to this Agreement may be in issue
before various regulatory bodies. Upon reasonable notice, AGENT agrees to fully
cooperate with CARRIER regarding any such matters including willingly providing
employees of AGENT to testify at appropriate times regarding any aspect of this
Agreement or other related issues. CARRIER agrees to reimburse AGENT for
reasonable costs expended in supplying such testimony.
32.3 Binding Effect. This Agreement, including the preambles and
Exhibits (as amended), is binding upon the parties hereto, their respective
executors, administrators, heirs, assigns and successors in interest.
32.4 Impossibility of Performance. Neither CARRIER nor AGENT shall be
liable for loss or damage or deemed to be in breach of this Agreement if its
failure to perform its obligations results from: (1) compliance with any law,
ruling, order, regulation, requirement or instruction of any federal, state or
municipal government or any department or agency thereof or court of competent
jurisdiction: (2) acts of God; (3) acts or omissions of the other party; or (4)
fires, strikes, embargoes, war, insurrection or riot. CARRIER shall not be
liable for loss or damage or be deemed to be in breach of this Agreement if
technological changes occur which prohibit CARRIER from issuing numbers to
Subscribers. Any delay resulting from any of said causes shall extend
performance accordingly or excuse performance, in whole or in part, as may be
reasonable.
32.5 Survival. The terms, provisions, obligations, representations, and
warranties contained in this Agreement that by their sense and context are
intended to survive the performance thereof by either or bulb Parties hereunder
shall so survive the completion of performances and termination of this
Agreement, including the making of any and all payments due hereunder.
32.6 Licenses. No licenses, express or implied, under any patents are
granted by CARRIER or its Affiliates to AGENT hereunder.
32.7 Notices and Payments. All payments due AGENT shall be made to such
address or bank as AGENT from time to time designates. All notices, consents and
reports required to be delivered by the provisions of this Agreement shall be
deemed so delivered: (1) when delivered personally; or (2) seventy-two (72)
hours after being mailed, registered or certified mail, return receipt
requested, postage prepaid, to the most current principal business address of
which the notifying Party has been notified ("Business Address"); or (3) one
business day after being delivered to a reputable overnight courier service,
prepaid, marked for next day delivery, addressed to the addressee at the
Business Address; or (4) on the first business day after receipt, if delivered
by facsimile transmission to the FAX number (if any) of the receiving party, if
receipt is confirmed by the addressee cither orally or in writing. All reports,
financial records and other information required by this Agreement shall be
directed to such other persons and places as CARRIER may direct from time to
time.
32.8 Publicity. AGENT agrees not to initiate any cellular
service-related public relations activities, including but not limited to news
releases, news conferences, news briefings or any other type of function
involving reporters, editors or news directors of any news organizations,
without first consulting CARRIER public relations personnel. Further, AGENT
agrees to refer all cellular service-related questions from news organizations
to CARRIER public relations personnel.
32.9 Product Liability. CARRIER shall not be liable or responsible for
nor warrant any products or accessories sold by AGENT. Any and all problems or
claims from said sale shall be referred back to AGENT.
32.10 Headings. The headings in this Agreement are for convenience only
and shall not be construed to define or limit any of the terms herein.
32.11 Prior Agreements. By signing hereunder AGENT acknowledges and
agrees that as of the effective date of this Agreement, any Agreement providing
compensation from CARRIER to AGENT for new Subscriber enrollment which AGENT has
with CARRIER for the Area(s) referenced herein shall be null and void and no
further compensation will be paid under the prior Agreements by CARRIER unless
otherwise provided herein.
32.12 Entire Agreement. This Agreement, including the preambles and
exhibits, sets forth the entire Agreement between the parties as to the subject
matter hereof and merges all prior discussions between them, and neither of the
parties shall be bound by any conditions, definitions, understandings, or
representations with respect to such subject matter other than as expressly
provided herein, or as duly set forth subsequent to the effective date hereof in
writing and signed by the duly authorized representatives of both parties.
IN WITNESS WHEREOF the parties hereto have executed, sealed and
delivered this Agreement in two counterparts on the day and year first above
written.
CARRIER SHOWN ON EXHIBIT B AREAWIDE CELLULAR, LLC
AS PROVIDED HEREIN ON BEHALF (NAME OF AUTHORIZED AGENT)
OF ENTITIES LISTED ON EXHIBIT A
FOR SPECIFIC MARKETS NOTED
BY: /s/ Xxx Xxxxxx BY: /s/ Xxxxxxx Xxxxxx
--------------------------------- ---------------------------------
Xxx Xxxxxx Xxxxxxx Xxxxxx
------------------------------------ ------------------------------------
(PRINT OR TYPE NAME) (PRINT OR TYPE NAME)
TITLE: VP/GM NFL TITLE: President
------------------------------ ------------------------------
DATE: DATE: /s/ March 22, 2001
------------------------------- -------------------------------
LIST OF EXHIBITS:
A. Markets
B. Compensation
C. Fraud Procedures
EXHIBIT A
AUTHORIZED AGENT AREA AND LOCATIONS
AREA:
Market Name Licensee Name
----------- -------------
Jacksonville, Florida Jacksonville MSA Limited Partnership
Additional Market Licensee:
----------------- ---------
FL RSA #5(B3)-Xxxxxx (Palatka) Jacksonville MSA Limited Partnership
As long as AGENT has no sales facility in any Area listed below, and as
long as AGENT does not actively advertise or solicit business in such Area,
Cingular Wireless shall pay compensation to AGENT for new Subscriber enrollment
in those specified Areas in accordance with the compensation Schedule in Exhibit
B which is currently in effect for the Jacksonville, Florida Area as such
Exhibit B may be amended from time to time as set forth in therein. For purposes
of computing Compensation, Subscriber enrollment for the area listed below and
the Jacksonville, Florida Area shall be aggregated.
AGENT BUSINESS LOCATIONS:
This Exhibit may be amended from time to time by written agreement of the
parties.
EXHIBIT B
AGREEMENT START DATE: April 15. 2001
--------------
AGENT LEGAL NAME: Areawide Cellular, LLC
----------------------
AGENT d/b/a NAME (IF DIFFERENT)
-------------------------------------------------
--------------------------------------------------------------------------------
AGENT PLACE OF INCORPORATION (if applicable): Illinois
--------
AGENT ADDRESS: 0000 Xxxxxxx Xxxx., Xxxxxxx Xxxxx. IL 6089
------------------------------------------
CARRIER: CINGULAR WIRELESS LLC
---------------------
CARRIER ADDRESS: 0000 XXXXXXXXX XXXXXXXXX, XXXXXXX, XX 00000
-------------------------------------------
Standard Up-Front compensation [CONFIDENTIAL TREATMENT REQUESTED]
Low User Up-Front for Plans with a minimum monthly access charge less than
[CONFIDENTIAL TREATMENT REQUESTED]
QUOTAS FOR RESIDUAL PAYOUT
---------------------------------- ----------------------------------------
MONTH IN WHICH PERFORMANCE QUOTA FOR 2001
COMMISSION CYCLE
BEGINS
---------------------------------- ----------------------------------------
January [CONFIDENTIAL TREATMENT REQUESTED]
---------------------------------- ----------------------------------------
February [CONFIDENTIAL TREATMENT REQUESTED]
---------------------------------- ----------------------------------------
March [CONFIDENTIAL TREATMENT REQUESTED]
---------------------------------- ----------------------------------------
April [CONFIDENTIAL TREATMENT REQUESTED]
---------------------------------- ----------------------------------------
May [CONFIDENTIAL TREATMENT REQUESTED]
---------------------------------- ----------------------------------------
June [CONFIDENTIAL TREATMENT REQUESTED]
---------------------------------- ----------------------------------------
July [CONFIDENTIAL TREATMENT REQUESTED]
---------------------------------- ----------------------------------------
August [CONFIDENTIAL TREATMENT REQUESTED]
---------------------------------- ----------------------------------------
September [CONFIDENTIAL TREATMENT REQUESTED]
---------------------------------- ----------------------------------------
October [CONFIDENTIAL TREATMENT REQUESTED]
---------------------------------- ----------------------------------------
November [CONFIDENTIAL TREATMENT REQUESTED]
---------------------------------- ----------------------------------------
December [CONFIDENTIAL TREATMENT REQUESTED]
---------------------------------- ----------------------------------------
AGENT COMPENSATION
I
STANDARD UP-FRONT COMPENSATION
AGENT will be paid the Standard Up-Front or Low User Up-Front shown
above for each new Subscriber enrolled in the Area under a service package for
which CARRIER does not pay reduced compensation ("Up-Front Compensation").
A. Up-Front Compensation shall he paid within thirty (30) working days
following the close of the commission cycle in the Area in which the
Subscriber began using CARRIER's service. AGENT will not be paid for
Subscribers who subscribe to CARRIER's service outside of any area
specified in (his Agreement. CARRIER reserves the right, at any time
and from time to time, to change the period used to determine payment
of AGENT compensation. AGENT shall be notified in writing of any change
in such period.
If a Subscriber does not complete [CONFIDENTIAL TREATMENT REQUESTED]
days of continuous active service (as defined in Section V of this
Exhibit B) in the Area in which the Subscriber began using CARRIER's
service, AGENT shall be required to repay to CARRIER the amount of
compensation paid by CARRIER to AGENT for such Subscriber. Such
repayment may be deducted by CARRIER from any amounts otherwise owed to
AGENT by CARRIER. If such amount is not deducted by CARRIER, such
repayment shall be made by AGENT to CARRIER within thirty (30) days
after CARRIER notifies AGENT that the Subscriber has failed to complete
[CONFIDENTIAL TREATMENT REQUESTED] days of continuous active service in
the Area in which the Subscriber began using CARRIER's service.
B. In order to be paid within the time period set forth in Paragraph A
above, AGENT must submit all deposits, xxxxxxx payments and appropriate
paperwork to CARRIER no later than fifteen (15) days from the date the
service request was submitted to CARRIER by the AGENT. No compensation
will be paid unless all paperwork is accurately completed to CARRIER's
satisfaction and in accordance with CARRIER's procedures. Additionally,
CARRIER shall not be obligated to pay any compensation to AGENT for any
Subscriber whom AGENT enrolls on CARRIER's WRS with any unapproved FCC
type Equipment or Equipment which does not meet the manufacturer's
recommendations. In order to ensure that compensation is appropriately
credited to AGENT's account, AGENT must supply CARRIER with the correct
security code when submitting activations.
If, notwithstanding the above. CARRIER pays AGENT compensation for a
Subscriber before all paperwork is processed, CARRIER may, in its
discretion require AGENT to repay to CARRIER the amount of compensation
paid by CARRIER to AGENT for such Subscriber. Such repayment may be
deducted by CARRIER from any amounts otherwise owed to AGENT by
CARRIER. If such amount is not deducted by CARRIER, such repayment
shall be made by AGENT to CARRIER within 30 days after CARRIER notifies
AGENT that the repayment is due. After such repayment is made, if AGENT
submits all completed, appropriate paperwork for such Subscriber within
ninety (90) days from the date of such repayment, CARRIER shall repay
to AGENT the amount due as compensation for such Subscriber.
C. AGENT is responsible for obtaining and remitting to CARRIER the
deposit, if any, required from subscribers enrolled by AGENT. If
CARRIER does not receive such deposit within thirty (30) days of the
Subscriber's activation date, CARRIER may, in its discretion, require
AGENT to pay to CARRIER the amount of the deposit due for such
Subscriber's account. Such payment may be deducted by CARRIER from any
amounts otherwise owed to AGENT by CARRIER. If such amount is not
deducted by CARRIER, such payment shall be made by AGENT to CARRIER
within thirty (30) days after CARRIER notifies AGENT that the payment
is due.
D. A Subscriber who is enrolled by AGENT and has attained [CONFIDENTIAL
TREATMENT REQUESTED] days of continuous active service and who then
voluntarily disconnects and reconnects within a [CONFIDENTIAL TREATMENT
REQUESTED] day period shall not be included in AGENT's count of new
Subscribers and CARRIER shall not pay any additional Up-Front
Compensation to AGENT for any such Subscriber.
If, notwithstanding the above, CARRIER pays AGENT compensation for a
Subscriber described in this Paragraph D, CARRIER may, in its
discretion require AGENT to repay to CARRIER the amount of compensation
paid by CARRIER to AGENT for such Subscriber. Such repayment may be
deducted by CARRIER from any amounts otherwise owed to AGENT by
CARRIER. If such amount is not deducted by CARRIER, such repayment
shall be made by AGENT to CARRIER within 30 days after CARRIER notifies
AGENT that the repayment is due.
Additionally, if a Subscriber changes telephone numbers or Equipment,
such Subscriber shall not be included in AGENT's count of new
Subscribers because of such change, and CARRIER shall not pay any
additional compensation to AGENT for any such Subscriber because of
such change. Subscribers shall be deemed to have changed telephone
number or equipment when one person disconnects service, another person
subscribes to the service, but in CARRIER's sole judgment, the second
subscription is a substitute for the original subscription.
The provisions of this Paragraph D shall apply only to Subscriber
enrollment in the Area in which the Subscriber began using CARRIER's
service.
E. A Subscriber who is enrolled by AGENT and has attained [CONFIDENTIAL
TREATMENT REQUESTED] days of continuous active service and who then is
disconnected for nonpayment and is subsequently reconnected shall not
be included in AGENT's count of new Subscribers and CARRIER shall not
pay any additional Up-Front compensation to AGENT for any such
Subscriber.
F. Should CARRIER, in its sole discretion, determine that AGENT has
inflated or otherwise manipulated its count of new Subscribers by
falsifying applications, adding nonexistent Subscribers, adding
Subscribers who do not use minimal amounts of airtime, or by any other
means or methods, then CARRIER shall, in addition to any other rights
it may have under this Agreement, have the right to immediately
terminate this Agreement and/or to collect from AGENT, and AGENT agrees
to pay to CARRIER all payments made to AGENT by CARRIER for each such
Subscriber and all amounts due for unpaid bills for service for each
such Subscriber. AGENT agrees to pay any amounts due to CARRIER within
thirty (30) days after CARRIER provides evidence to AGENT of such
actions. Provided, however. CARRIER shall not require AGENT to repay
any compensation which was paid for such Subscriber after twelve (12)
months from such Subscriber's service activation date.
G. If AGENT activates a cellular telephone number and submits the number
to CARRIER, and on the date of submission of the number to CARRIER the
equipment is not installed or picked up by the Subscriber, or if the
Subscriber returns the equipment (a "No Install"), AGENT agrees to
notify CARRIER of the No Install by the close of business on the second
day following the submission of the number to CARRIER. If AGENT fails
to notify CARRIER of the No Install within the above time, AGENT agrees
to pay CARRIER, or CARRIER may deduct from any amounts otherwise due to
AGENT, the sum of [CONFIDENTIAL TREATMENT REQUESTED] per No Install to
compensate CARRIER for the costs incurred in processing the No Install.
CARRIER shall also have the right to deduct any compensation which was
paid for such a No Install.
H. If AGENT fails to notify a Subscriber of any charges due for CARRIER's
WRS, including activation fees, access charges, or per minute charges,
or if AGENT misrepresents or provides inadequate information about any
such charges, the size of the coverage area, or anything else about
CARRIER's WRS to a Subscriber, CARRIER shall have the right to deduct
from commissions otherwise due to AGENT, or AGENT agrees to pay CARRIER
upon demand, an amount equal to any amount which CARRIER pays to or
allows the Subscriber for such charges of which the Subscriber was not
notified or which were misrepresented to the Subscriber. Further, if
AGENT fails to program any Subscriber Equipment correctly and according
to recommendations made and/or standards set by the manufacturer and/or
CARRIER, CARRIER shall have the right to deduct from compensation
otherwise due to AGENT, or AGENT agrees to pay CARRIER upon demand, an
amount determined by CARRIER for such faulty programming. CARRIER will
notify AGENT in advance of such amount.
I. If AGENT activates a number and the billed name and address reflect the
AGENT's name and/or address and not the actual Subscriber (or his or
her employer), CARRIER may charge back the compensation paid to AGENT
and AGENT agrees to be responsible for all unpaid bills for service for
such a number.
J. CARRIER may, in its sole discretion, impose a charge upon AGENT for
Equipment changes. Such charge shall be in accordance with the
Equipment Change Guidelines specified by management in the Area.
K. No compensation will be paid to AGENT for numbers activated by, and in
the name of, AGENT, its Subagents, affiliates, employees, any person
included in the definition of AGENT, and the like.
L. NO COMPENSATION SHALL HE PAID UNDER THIS AGREEMENT FOR ANY SUBSCRIBERS
ACTIVATED UNDER A PREPAID PLAN OR PROGRAM.
II
RESIDUAL COMPENSATION
CARRIER will pay to AGENT Residual Compensation, computed as specified
below. AGENT acknowledges that Residual Compensation is not paid for past
service, but rather, is paid for current services. Therefore, AGENT agrees that
it has no vested interest in its residuals if it is failing to perform and
currently generate new Subscribers for CARRIER. A monthly commission will
commence with the first day of a Subscriber's service but will be paid to AGENT
retroactively after a Subscriber defined above has completed 150 days of
continuous active service. No Residual Compensation shall be paid for
Subscribers who fail to complete [CONFIDENTIAL TREATMENT REQUESTED] days of
continuous active service. Subscribers activated under prepaid plans or programs
shall not be included in AGENT's Subscriber bases.
A. Preliminary Residual Compensation.
The amount of Preliminary Residual Compensation is a percentage based
on the number of active new Subscribers who have completed
[CONFIDENTIAL TREATMENT REQUESTED] days of continuous active service
added to AGENT's Sbuscriber base since the inception date of this
Agreement as shown in the chart of tiers below. The amount of the
Preliminary Residual Compensation is the appropriate percentage of the
amount CARRIER bills that Subscriber for monthly access and airtime
usage, excluding ancillary services, such as, but not limited to,
insurance, roamer and Equipment charges, taxes and long distance tolls.
Preliminary Residual Compensation will be based on the aggregate number
of Subscribers activated since the inception date of this Agreement
billed during the month who have completed [CONFIDENTIAL TREATMENT
REQUESTED] days of continuous active service.
Number of Active New Subscribers
Who Completed [CONFIDENTIAL TREATMENT REQUESTED] Days of
Continuous Active Service
Added to AGENT'S Base Preliminary
Since Commencement Residual
Date of Agreement Percent
0-1000 [CONFIDENTIAL TREATMENT REQUESTED]
1001-2500 [CONFIDENTIAL TREATMENT REQUESTED]
2501-4000 [CONFIDENTIAL TREATMENT REQUESTED]
4001-6000 [CONFIDENTIAL TREATMENT REQUESTED]
6001 and above [CONFIDENTIAL TREATMENT REQUESTED]
B. The Preliminary Residual Compensation shall be multiplied by the
Percentage Residual shown on Schedule 1, attached hereto and made a
part hereof. The result is Residual Compensation payable for that
commission cycle. The Percentage Residual for each commission cycle is
the Percentage Residual that corresponds to AGENT's Percentage of
Performance Quota for such cycle. The Percentage of Performance Quota
is the number of new Subscribers activated by AGENT during the
commission cycle divided by the Performance Quota shown above for such
commission cycle.
C. Residual Compensation shall be paid within thirty (30) working days
following the close of the last billing period in the Area in which the
Subscriber completed 150 days of continuous active service. Should
CARRIER implement split cycle billing, CARRIER reserves the right, at
any time and from time to time, to change the period used to determine
payment of Residual Compensation. AGENT shall be notified in writing of
any change in such period.
Residual Compensation shall he paid for each Subscriber until the
Subscriber's service is terminated or until this Agreement terminates, whichever
event shall first occur. If a Subscriber's service is terminated and such
Subscriber reactivates service through another agent or directly through
CARRIER, no further Residual Compensation shall be paid to AGENT.
III
PAYMENT FOR SERVICE OPTIONS
CARRIER reserves the right to determine whether AGENT will receive
compensation for service options when those options are introduced or
implemented. Payment for service options shall be determined by the appropriate
CARRIER Manager in the Area.
IV
COMPENSATION MODIFICATION
Once each calendar year, CARRIER shall have the right to review and
modify any part of this Exhibit including but not limited to compensation rates
and Performance Quotas. CARRIER may make such modification any time during the
year. The first such modification may be made after the January 1 next
anniversary after the effective date of this Agreement. CARRIER shall give AGENT
thirty (30) days prior written notice of the effective date of any modification.
Up-Front Compensation shall not be reduced by more than 11% at any such
modification date.
V
GENERAL
A. Continuous active service refers to the use of CARRIER's WRS without
interruption, either voluntary or involuntary.
For purposes of calculating continuous active service, a Subscriber who
is disconnected for nonpayment and is reconnected to CARRIER's service
in the same billing cycle shall be considered as having continuous
active service.
B. If AGENT receives Equipment under any CARRIER program and invoices are
not timely paid, or if AGENT owes CARRIER amounts for any other reason,
including, but not limited to, all amounts due for unpaid bills for
cellular service or equipment provided to AGENT, its officers,
employees, principals or affiliates, CARRIER reserves the right to
deduct such unpaid amounts from AGENT's compensation.
AGENT understands that it will be invoiced for lost, stolen and damaged
Equipment which has been shipped by CARRIER or CARRIER's supplier in
accordance with standard practices.
C. If AGENT believes there are any discrepancies in commission payments,
AGENT must submit a request for reconciliation within ninety (90) days
from the date of such payment.
D. If CARRIER believes that AGENT may cease doing business as an AGENT or
if CARRIER determines that this Agreement may terminate for any other
reason, then CARRIER may, in its sole discretion, withhold compensation
otherwise due to AGENT in order to cover charge-backs or other
deductions from AGENT's compensation that CARRIER may make for
Subscribers who do not complete 150 days of continuous active service.
CARRIER shall inform AGENT in such a case of the reasons for
withholding compensation.
SCHEDULE 1
Residual Payout Schedule
------------------------------------------------------ ------------------------------------
PERCENTAGE OF PERFORMANCE QUOTA REACHED IN A GIVEN PERCENTAGE RESIDUAL
COMMISSION CYCLE
------------------------------------------------------ ------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED]
------------------------------------------------------ ------------------------------------
------------------------------------------------------ ------------------------------------
PERCENTAGE OF PERFORMANCE QUOTA REACHED IN A GIVEN PERCENTAGE RESIDUAL
COMMISSION CYCLE
------------------------------------------------------ ------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED]
------------------------------------------------------ ------------------------------------
ACKNOWLEDGED AND AGREED TO BY:
Areawide Cellular, LLC
----------------------
NAME OF AGENT
/s/ Xxxxxxx Xxxxxx
-------------------------------------
SIGNATURE
Xxxxxxx Xxxxxx
-------------------------------------
PRINTED NAME
03/22/01
-------------------------------------
DATE
EXHIBIT C
Fraudulent Subscribers are a major source of cellular fraud and consequent
revenue losses. To prevent this and protect both CARRIER and its respective
distribution channels, the following are required for qualification of
commissions and/or bonuses.
Verification of identity and signature from valid drivers license or
state issued ID card. Make sure the signature and address are the same
on the service application as on the ID.
If possible, obtain a copy OF ID to be maintained with service
application.
Accounts must be in the name of the person signing the application and
that person's credit must be used in determining qualification for
service and deposit requirements.
Account must be a new subscriber - a change of mobile number or ESN
does not constitute a new account.
Altering phones by changing the ESN (i.e. providing an extension phone)
is in violation of FCC Rules and will result in not only commission
chargeback but also is considered breach of contract.
THE MANAGER IN YOUR AREA WILL FURNISH YOU A POLICIES AND PROCEDURES
LETTER REGARDING FRAUDULENT SUBSCRIBERS, WHICH LETTER SHALL BECOME A
PART OF THIS AGREEMENT.
This Exhibit may be amended from time to time by CARRIER.
