EXHIBIT 10.33
MARKETING AGREEMENT
This Marketing Agreement is made as of this 8th day of November, 1999,
between Preferred Voice, Inc., a Delaware corporation ("PVI") and Midwest
Wireless Communications, L.L.C., a Delaware limited liability company, on behalf
of itself and its wholly owned subsidiaries and affiliates ("WIRELESS
PROVIDER"). PVI and WIRELESS PROVIDER are collectively referred to in this
Agreement as the "Parties."
BACKGROUND INFORMATION
PVI has developed a system (the "System") that when interconnected with
a telephone switching system is capable of performing the services described in
Exhibit A attached hereto and incorporated herein by reference (the "Services").
Each System consists of the hardware described in Exhibit B, certain third party
software and certain proprietary application software developed by PVI. WIRELESS
PROVIDER is a licensed wireless carrier that is currently providing
telecommunications service in the calling areas described in Exhibit C. WIRELESS
PROVIDER wishes to offer the Services to end users ("End Users") under its own
brand in conjunction with its telecommunications services.
In consideration of the mutual promises made in this Agreement, PVI and
WIRELESS PROVIDER agree that the terms and conditions set forth as follows will
apply to the license of Application Software.
ARTICLE 1. INSTALLATION
1.01 INSTALLATION. PVI shall install its Systems at WIRELESS PROVIDER's
switch locations set forth in Exhibit C to interconnect with switches described
in Exhibit C. The System will remain the property of PVI. WIRELESS PROVIDER
shall prepare the site in accordance with PVI's specifications. Installation of
Systems will be completed within 90 days of that date set forth in the
introductory paragraph of this Agreement. At WIRELESS PROVIDER'S option,
additional Systems may be added as the WIRELESS PROVIDER expands into additional
calling areas.
PVI agrees that it will use best efforts to comply with all
WIRELESS PROVIDER's security, confidentiality and regulatory requirements in
relation to the System installed at any site. In addition, PVI agrees to use all
reasonable efforts to install Systems so that they shall comply in all material
respects with all federal, state, and local laws and regulations in force on the
date hereof, which directly impose obligations upon PVI or the applicable
manufacturer.
1.02 PVI TESTING. PVI shall test the Systems to ensure that
they work properly. The testing period shall (i) commence promptly upon the
completion of installation of the System at the sites, but in no event later
than five (5) days following such completion of installation (the "Commencement
Date"), and (ii) conclude upon acceptance by as described in Section 1.03 below.
Should material deficiencies arise in the performance of the System during
testing, PVI
**[Confidential Treatment] indicates portions of this document that have been
deleted from this document and have been separately filed with the Securities
and Exchange Commission.
MARKETING AGREEMENT - Page 1
shall inform WIRELESS PROVIDER promptly thereof by submitting notice, including
a written, reasonably detailed description of each deficiency, to WIRELESS
PROVIDER. PVI shall then use reasonable efforts to cure the noncompliance.
WIRELESS PROVIDER shall use its best efforts to assist PVI in curing such
noncompliance. Upon completion of such cure, PVI shall give notice to WIRELESS
PROVIDER thereof. The total period of time that may be spent on the testing
period shall not exceed ninety (90) days from the Commencement Date. If PVI,
using commercially reasonable efforts, is unable to cure any material deficiency
of the System within 90 days of the Commencement Date, then following notice
thereof either party may give the other party thirty (30) days' written notice
of its election to terminate this Agreement and the reasons therefor.
1.03 WIRELESS PROVIDER ACCEPTANCE. PVI shall inform WIRELESS PROVIDER
in writing of the completion of PVI's testing under Section 1.02. WIRELESS
PROVIDER will thereupon commence testing of the System, and shall have 60 days
in which to test the functionality of the System with employees. Upon completion
of the 60 day test period, WIRELESS PROVIDER shall either provide PVI with
written notice of any problems revealed in its tests or deliver PVI an
acceptance certificate, substantially in the form attached hereto as Exhibit D
(the "Acceptance Certificate"). The System shall be deemed to have been accepted
by WIRELESS PROVIDER upon execution and delivery by WIRELESS PROVIDER to PVI of
an Acceptance Certificate, executed by an authorized representative of WIRELESS
PROVIDER or failure of WIRELESS PROVIDER to provide written notice to PVI of any
problems WIRELESS PROVIDER discovers within the 60-day period it is conducting
tests.
ARTICLE 2. SALES AND MARKETING
2.01 SALES. WIRELESS PROVIDER shall use all commercially reasonable
efforts to promote sale of the Services so as to maximize revenues, including
conducting commercially reasonable advertising campaigns and maintaining an
inventory of collateral support materials for promotion, advertising,
point-of-sale, record keeping, subscriptions, and other items related to sales
of the Services. WIRELESS PROVIDER shall xxxx and collect for Services used by
End Users.
2.02 PRICING. WIRELESS PROVIDER will establish pricing for the Services
in its absolute discretion.
2.03 ADVERTISING AND PROMOTIONAL LITERATURE. If so requested by
WIRELESS PROVIDER, PVI will assist WIRELESS PROVIDER in the development and
production of original copy of advertising and collateral support materials
(i.e. layout, verbiage, plates, negatives, dies, and/or other setup materials)
that may be utilized by WIRELESS PROVIDER for marketing the Services.
ARTICLE 3. PAYMENT
WIRELESS PROVIDER shall pay PVI a share of WIRELESS PROVIDER's revenue
from the Services determined from the schedule set forth in Exhibit E. This
amount shall be paid monthly by the last day of each month for Services billed
in the prior month.
MARKETING AGREEMENT - Page 2
ARTICLE 4. TRAINING AND SUPPORT
4.01 TECHNICAL SUPPORT. During the term of this Agreement, PVI shall
provide a technical support help desk that WIRELESS PROVIDER may call to report
System troubles twenty-four (24) hours per day, seven (7) days per week basis.
PVI shall troubleshoot the problems and contact the appropriate vendor to
resolve problems that cannot be resolved by actions WIRELESS PROVIDER may take
on PVI's instruction. During the term of this Agreement, PVI shall provide (i)
remote, dial-up System support, on a twenty-four (24) hours per day, seven (7)
days per week basis, and (ii) packages, generally containing corrections of
known software defects and updates or patches to increase or improve performance
and occasionally also containing minor feature enhancements of existing
software, relating to a current System. WIRELESS PROVIDER shall provide
permanent digital connectivity to each System for the purpose of off-site
software revision and maintenance.
4.02 PROVISIONING. For up to the first six months following
installation of the System, PVI shall update and maintain the customer and names
data bases in the System based on information provided by End Users directly or
through WIRELESS PROVIDER. During that period PVI shall train WIRELESS
PROVIDER's personnel in data base update and maintenance procedures. WIRELESS
PROVIDER will be responsible for such work after such training period.
4.03 TRAINING. As part of the installation process, PVI shall provide
WIRELESS PROVIDER's personnel with the initial training and instruction as
described on Exhibit F attached hereto concerning the operation and use of the
System by conducting training sessions at a mutually convenient time at WIRELESS
PROVIDER's facility. Any additional training services that are requested by
WIRELESS PROVIDER shall be invoiced to WIRELESS PROVIDER in accordance with
PVI's then prevailing hourly rates. WIRELESS PROVIDER shall be responsible for
all travel and other expenses of its personnel attending such training sessions.
ARTICLE 5. TERM
The initial term of this Agreement shall be five years. Upon expiration
of the initial term specified above, the Agreement shall automatically renew for
up to five successive one (1) year terms unless either party gives the other
notice of its intention not to renew the license at least sixty (60) days prior
to the expiration of the then current term.
ARTICLE 6. WARRANTY PROVISIONS
6.01 GENERAL. PVI warrants that the System will provide Services when
properly interconnected to WIRELESS PROVIDER's functioning switches of the types
described in Exhibit C (provided, that ANY MODIFICATION OF THE SYSTEM BY ANY
PERSONS OTHER THAN PVI SHALL VOID THE WARRANTY IN THIS SECTION 6.01).
MARKETING AGREEMENT - Page 3
6.02 YEAR 2000. PVI warrants that the System delivered or modified by
PVI is Year 2000 Compliant (as defined below). Year 2000 Compliant software that
is intended to interoperate with third party products as described herein will
be compatible and inter-operate in such manner as to process between them, as
applicable, date related data correctly as described in the definition of "Year
2000 Compliant." Except as set forth in the preceding sentence, (i) PVI assumes
no responsibilities or obligations to cause third party products to function
with the System; and (ii) PVI will not be in breach of this warranty for any
failure of the System to be Year 2000 Compliant if such failure results from the
inability of any software, hardware, or systems of WIRELESS PROVIDER or any
third party to be Year 2000 Compliant. "Year 2000 Compliant" means that (a)
neither the performance nor functionality of the System will be affected by
dates prior to, during and after the year 2000, (b) no value for current date
will cause any interruption in the operation of the System; (c) the year 2000 is
recognized as a leap year; (d) in all interfaces and data storage the century,
in any date, is specified either explicitly or by unambiguous algorithms or
inferencing rules; and (e) date-based functionality of the System behaves and
will behave consistently for dates prior to, during and after the year 2000.
ARTICLE 7. TERMINATION
7.01 CAUSE FOR TERMINATION. This Agreement shall terminate
automatically and without further notice upon the occurrence of expiration of
the term, specified in Article 5 or of any renewal term in the absence of a
subsequent renewal in accordance with the terms of this Agreement. PVI may
terminate this Agreement in the event that revenue sharing payments to PVI are
less than $2000 per System per month for three consecutive months, unless
WIRELESS PROVIDER pays PVI the shortfall. In addition, either party may
terminate this Agreement at any time if (a) the other party breaches any
material term hereof and fails to cure such breach within 30 days (or ten days
in the case of a failure to pay any sum due) after receipt of written notice,
(b) the other party shall be or becomes insolvent, (c) the other party makes an
assignment for the benefit of creditors, (d) there are instituted by the other
party proceedings in bankruptcy or under any insolvency or similar law or for
reorganization, receivership or dissolution, (e) there are instituted against
the other party proceedings in bankruptcy or under any insolvency or similar law
or for reorganization, receivership or dissolution, which proceedings are not
dismissed within 60 days, or (f) the other party ceases to do business. As long
as WIRELESS PROVIDER continues to pay PVI the fees due pursuant to this
Agreement, the WIRELESS PROVIDER shall be permitted to continue to use the
System to provide the Services for a period of up to ninety (90) days following
termination in order for the WIRELESS PROVIDER to test and install a replacement
service.
7.02 EFFECT OF TERMINATION. WIRELESS PROVIDER agrees that on
termination under Xxxxxxx 0.00, XXX may recover all Systems that have been
installed. Upon termination of the license, PVI's obligations under this
Agreement shall cease. The termination or expiration of this Agreement shall in
no way relieve either party from its obligation to pay the other any sums
accrued hereunder prior to such termination or expiration.
MARKETING AGREEMENT - Page 4
ARTICLE 8. INSURANCE
Each party hereto shall maintain, during the term of this Agreement,
the following insurance coverage as well as all other insurance required by law
in the jurisdictions where the work is performed: (a) workers compensation and
related insurance as required by law; (b) employer's liability insurance with a
limit of at least five hundred thousand ($500,000) dollars for each occurrence;
(c) comprehensive general liability insurance, with a limit of at least one
million ($1,000,000) dollars per occurrence; and (d) comprehensive motor vehicle
liability insurance with limits of at least one million ($1,000,000) dollars for
bodily injury including death, to any one person, three hundred thousand
($300,000) dollars for each occurrence of property damage, and one million
($1,000,000) dollars for each occurrence. Each party shall (i) furnish the other
prior to the start of the relevant work, if requested by the other, certificates
or adequate proof of the insurance required by this Section and (ii) notify the
other in writing at least thirty (30) days prior to cancellation of or any
material change in the policy. Notwithstanding the above, each party shall have
the option where permitted by law to self-insure any or all of the foregoing.
ARTICLE 9. MISCELLANEOUS
9.01 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT THAT ANY CONFLICTS OF
LAW RULES OR PRINCIPLES OF THE STATE OF TEXAS THAT WOULD REQUIRE REFERENCE TO
THE LAWS OF ANOTHER JURISDICTION SHALL BE DISREGARDED.
9.02 HEADINGS. Headings used in this Agreement are to facilitate
reference only, are not a part of this Agreement, and will not in any way affect
the interpretation hereof. The use herein of the word "including," when
following any general statement, term or matter, shall not be construed to limit
such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not
non-limiting language (such as "without limitation," or "but not limited to," or
words of similar import) is used with references thereto, but rather shall be
deemed to refer to all other items and matters, that reasonably could fall
within the broadest possible scope of such general statement, term or matter.
9.03 ASSIGNMENT. This Agreement, and all rights and obligations
hereunder, are personal as to the parties hereto and may not be assigned, in
whole or in part, by any of the parties to any other person, firm or corporation
without the prior written consent thereto by the other party hereto, which
consent will not be unreasonably withheld; except that either party may freely
assign any or all of its rights and obligations hereunder to any affiliate. An
affiliate is (a) an entity that owns all or substantially all of the outstanding
stock of the entity so assigning, (b) an entity all or substantially all of
whose stock is owned by the entity so assigning, or (c) an entity under common
ownership with the entity so assigning. Such assignee entity shall thereupon be
free to assign the rights and obligations under this Agreement to any other
affiliate. Any assignment contrary to the terms hereof shall be null and void
and of no force or effect.
MARKETING AGREEMENT - Page 5
9.04 FAILURE OR PARTIAL EXERCISES. No failure on the part of any party
to exercise, and no delay in exercising, any right or remedy hereunder shall
operate as a waiver thereof. Nor shall any single or partial exercise of any
right or remedy hereunder exclude any other or further exercise thereof or the
exercise of any other right hereunder.
9.05 ENTIRE AGREEMENT, Amendments. This Agreement and all schedules and
exhibits annexed hereto constitute the entire agreement among the parties
respecting the subject matter hereof and supersedes all prior agreements among
the parties relative to the subject matter hereof. In entering this Agreement,
WIRELESS PROVIDER did not rely on any representations or warranties of PVI or
its employees or agents other than those set forth in this Agreement. This
Agreement may not be modified or amended except by a writing that states that it
is an amendment to this Agreement and which is signed by duly authorized
representative of the parties.
9.06 NOTICES. All notices required or permitted to be given hereunder
shall be in writing and shall be valid and sufficient if dispatched either (i)
by hand delivery, (ii) by facsimile transceiver, with confirming letter mailed
promptly thereafter by first class mail, postage prepaid, (iii) by reputable
overnight express courier or (iv) by certified mail, postage prepaid, return
receipt requested, deposited in any post office in the United States, in any
case, addressed to the addresses set forth on the signature page of this
Agreement, or such other addresses as may be provided from time to time in the
manner set forth above. When sent by facsimile as aforesaid, notices given as
herein provided shall be considered to have been received at the beginning of
recipient's next business day following their confirmed transmission; otherwise,
notices shall be considered to have been received only upon delivery or
attempted delivery during normal business hours.
9.07 PARTIAL INVALIDITY. If any clause or provision of this Agreement
is held to be illegal, invalid, or unenforceable under present or future laws
effective during the term of this Agreement, then and in that event, it is the
intention of the parties hereto that the remainder of this Agreement shall not
be affected thereby, and it is also the intention of the parties to this
Agreement that in lieu of each clause or provision of this Agreement that is
held to be illegal, invalid, or unenforceable, there be added as a part of this
Agreement a clause or provision as similar in terms to such illegal, invalid, or
unenforceable clause or provision as may be possible and still be legal, valid,
and enforceable.
9.08 ATTORNEYS FEES. The prevailing party in any litigation,
arbitration or other proceedings arising out of this Agreement shall be
reimbursed by the other party for all costs and expenses incurred in such
proceedings, including reasonable attorneys' fees.
9.09 FORCE MAJEURE. No party hereto shall be liable for delay or
default in performing hereunder, other than a delay or default in payment of any
monies due to the other party, if such performance is delayed or prevented by a
Force Majeure Condition. "Force Majeure Condition" means any condition or event
beyond the reasonable control of the party affected thereby, including fire,
explosion, or other casualty, act of God, war or civil disturbance, acts of
public enemies, embargo, acts of city, state, local or federal governments in
their sovereign, regulatory,
MARKETING AGREEMENT - Page 6
or contractual capacity, labor difficulties, and strikes, but specifically
excluding a party's failure to be Year 2000 Compliant. If a Force Majeure
Condition occurs, the party delayed or unable to perform shall give prompt
notice of such occurrence to the other party. The party affected by the other
party's inability to perform may, after sixty (60) days, elect to either
terminate this Agreement or continue performance with the option of extending
the terms of the Agreement up to the length of time the Force Majeure Condition
endures. The party experiencing the Force Majeure Condition must inform the
other party in writing when such a condition ceases to exist. Each party shall,
with the cooperation of the other, exercise all reasonable efforts to mitigate
the extent of a delay or failure resulting from a Force Majeure Condition.
9.10 INDEPENDENT CONTRACTOR. The relationship of the parties
established by this Agreement is that of independent contractors, and nothing
contained in this Agreement will be construed (a) to give either party the power
to direct and control the day-to-day activities of the other, (b) to constitute
the parties as partners, joint venturers, owners or otherwise as participants in
a joint or common undertaking, or (c) to allow either party to create or assume
any obligation on behalf of the other for any purpose whatsoever.
9.11 PVI'S USE. WIRELESS PROVIDER shall permit PVI to use its Systems
to provide Services to its own end users ("PVI End Users") where efficient
networking would be promoted by such use by PVI End Users.
9.12 CONFIDENTIALITY OF AGREEMENT. The terms of this Agreement shall be
maintained in confidence by all parties and may be disclosed only to such of a
party's employees or agents having a need to know its terms. No party may
disclose the terms to any third party, other than its attorneys, accountants or
contractors having a need to know, except as may be required pursuant to a
lawfully issued subpoena or other formal demand for the production of
information by a court of competent jurisdiction or a regulatory body with
jurisdiction over the party. In the event any such demand is made, the party
ordered to produce such information shall promptly notify the other party and
shall use its best efforts to maintain the confidentiality of such information.
If either party determines that this Agreement is a "material contract," that
party may file this Agreement with the Securities and Exchange Commission,
provided that it notifies the other party at least fifteen (15) days prior to
such filing and cooperates with the other party for such treatment.
MARKETING AGREEMENT - Page 7
Preferred Voice, Inc. Midwest Wireless Communications, L.L.C.,
on behalf of itself and its wholly owned
subsidiaries and affiliates
By: By:
----------------------------- -----------------------------------
Name: Name:
----------------------------- -----------------------------------
Title: Title:
----------------------------- -----------------------------------
0000 Xxxxxxxxxx Xxxxxx Address:
Suite 570 ----------------------------------------
Xxxxxx, Xxxxx 00000 ----------------------------------------
Fax No.: 000-000-0000 Fax No.:
------------------------------
Phone: 000-000-0000 Phone:
------------------------------
PV1/MW.Wire1ess.MktgAgrmt.doc
MARKETING AGREEMENT - Page 8
EXHIBIT A
PREFERRED VOICE, INC.
PRODUCT DESCRIPTIONS
FLEET CALLING ADVANTAGE permits any caller dial-up access to a
directory of cellular phones served by
WIRELESS PROVIDER, and the caller may
then speak the name of the person in the
Directory with whom he wishes to speak and
be connected with that person's cellular
phone.
INTELLIGENT CALL SCREENING gives the subscriber the ability to hear the
voice of the person calling and the option
to accept the call or deny the call. Denying
the call will automatically send it to voice
mail or if the subscriber does not have voice
mail, the system will inform the caller that
the person is currently unavailable.
SAFETY DIALING is a service that allows the person
placing the call to access the WIRELESS
PROVIDERS network, dial the assigned access
code (such as**) on the keypad, speak a name
from his or her directory. That name's
programmed number will then be dialed.
EXHIBIT A - Page 1
EXHIBIT B
=========
HARDWARE CONFIGURATION (24PTS)
ITEM DESCRIPTION
FTU-2000A CUSTOM COMPUTER
P llBX40P38 PENT 11 400MHz CPU
P11BX33P38 PENT 11 333MHz CPU
64MO40 64MB D1MM RAM
FD015 3.5" FDD, BLACK
HD91S 9.1GB HDD, XXX0
XXX-0000X-X 4.3GB HDD, SCS1
CDKIT1 ALARM BOARD
CDT240A DUAL SLIM CD-ROM
SCSR03 SLIM LINE CD-ROM
MD566A JUMPERABLE FAX/MDM
MNT40 MS WIN NT 4.0
240SCT1 PORT RESOURCE
ANTARES VOICE RESOURCE
PRO 2V ALARM RESOURCE
PORT FEE VOICE REC RESOURCE
Optional Hardware Components
48v Inverter
Master Switch
TRAFFIC ENGINEERING
USERS PORTS
1000 11
2000 20
3000 26
Spares Kit
EXHIBIT B - Page 1
EXHIBIT C
=========
MIDWEST WIRELESS COMMUNICATIONS L.L.C.
0000 00XX XXXXX XX
XXXXXXXX, XX 00000
EXHIBIT C - Page 1
EXHIBIT D
=========
FORM OF ACCEPTANCE CERTIFICATE
==============================
The undersigned, an authorized representative of ______________________
____________________________, a _______________________ corporation, on behalf
of itself and its wholly owned subsidiaries and affiliates ("WIRELESS PROVIDER")
, in his/her capacity as ______________________, does hereby certify that (a)
the testing period (as such term is defined in the Software License Agreement,
dated as of ______________________, 1999 (the "Agreement"), by and between Pre-
ferred Voice, Inc. ("PVI") and WIRELESS PROVIDER with respect to the System (as
defined in the Agreement) purchased or licensed by WIRELESS PROVIDER has been
successfully completed, (b) the System satisfies the requirements of the
Specifications (as defined in the Agreement) and (c) the System is hereby
accepted by WIRELESS PROVIDER.
Date:
----------------------------- ----------------------------------------
By:
-----------------------------------
Printed Name:
-----------------------------------
EXHIBIT D - Page 1
EXHIBIT E
=========
REVENUE SHARING FEES
====================
[Confidential Treatment Requested]** OF THE FIRST [Confidential Treatment
Requested]** IN REVENUE FOR EACH SYSTEM
[Confidential Treatment Requested]** OF THE NEXT [Confidential Treatment
Requested]** IN REVENUE FOR EACH SYSTEM
[Confidential Treatment Requested]** OF ALL REVENUE IN EXCESS OF [Confidential
Treatment Requested]** FOR EACH SYSTEM
For purposes of this Agreement, Revenue shall equal the greater of
(a) the amount that would have been received by Wireless Carrier if the
charges set forth in the Exhibit E-1 had been charged to each
subscriber using one of the Services described in Exhibit E-1 except
that if WIRELESS PROVIDER is offering reduced rates -or free service as
part of a promotion, only a new subscribers actual revenue need be
accrued for the promotion during the first 30 days of service to the
new subscriber, or
(b) the actual revenue received from subscribers using a Service
offered by means of a System, excluding sales and use taxes, interest,
late charges and shipping and handling fees.
EXHIBIT E - Page 1
EXHIBIT E-1
===========
Service Monthly Fees
--------------------------------------------------------------------------------
Fleet Calling Advantage [Confidential Treatment
Requested]**
Intelligent Call Screening [Confidential Treatment
Requested]**
Safety Dialing [Confidential Treatment
Requested]**
EXHIBIT E-1 - Page 1
EXHIBIT F
=========
TRAINING
1. SERVICES TRAINING-
O Target Audience
- Product Manager
- Product Marketing
o Contents
- Complete review of each PVI service description and
application
- Market Position
- Target Market
2. SYSTEM INSTALLATION AND MAINTENANCE TRAINING-
Installation
o Hardware Installation
o T-1 Configuration
o VIP Programming
- SCC
- DID
Maintenance
o Alarm Systems
o Hardware Replacement
o Hardware Expansion
3. PROVISIONING
EXHIBIT F - Page 1
