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MOTOROLA AUTHORIZED TWO-WAY RADIO DEALER AGREEMENT
This Motorola Authorized Two-Way Radio Dealer Agreement including its
attachments ("Agreement") is made and entered into as of the Agreement Date, as
defined below, at Schaumburg, Illinois, by and between MOTOROLA, INC., a
Delaware Corporation having its principal place of business at 0000 X.
Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("Motorola") and CHAMPION COMM.
SERVICES, INC., A Corporation (cross out two) of the State of DELAWARE having
its principal place of business at Houston, Texas ("Dealer").
WHEREAS, for many years Motorola has sold certain communications products
through a direct sales force of Motorola employees, which it has developed and
supported at great expense; and
WHEREAS, Motorola intends to continue direct distribution to customers of
communications equipment and services which because of business or technological
reasons should, in Motorola's judgment, be served by Motorola; and
WHEREAS, Motorola also desires to expand its distribution system to include
Dealer and other resellers to solicit other customers and develop other markets.
THEREFORE, it is hereby agreed as follows:
1. TERM
The initial term of this Agreement shall commence as of the Agreement Date and
shall continue for an initial term which expires on December 31 of the calendar
year that the Agreement Date occurs in, unless sooner terminated as provided in
this Agreement. Thereafter, this Agreement shall renew automatically for
successive one-year additional terms unless a written notice of non-renewal is
sent by either party no less than thirty (30) days prior to the expiration date
of the initial or successive term or unless otherwise terminated pursuant to
the terms of this Agreement.
Nothing contained in this Agreement shall be deemed to create any express or
implied obligation on either party to renew or extend this Agreement or to
create any right to continue this Agreement on the same terms and conditions
contained herein. Dealer understands that Motorola intends to review its
distribution strategy and the terms and conditions of this Agreement on an
ongoing basis.
2. PRODUCTS, PRICES, RETAIL SALE ONLY, FINDER FOR SELECTED SERVICES AND DEALER
LOCATION
(a) During the term of this Agreement, Dealer agrees to purchase and Motorola
agrees to sell, in accordance with the terms and conditions of this Agreement,
selected Motorola manufactured and non-Motorola manufactured communications
products ("Products") as listed in the then current Motorola Authorized Two-Way
Radio Dealer Price Book ("Dealer Price Book").
(b) Motorola appoints Dealer as a finder, in accordance with the terms and
conditions of this Agreement for the sale of Motorola network services
contracts ("Network Services") and Motorola maintenance service agreements
("Maintenance").
(c) As further consideration for Motorola entering into this Agreement Dealer
shall promptly refer all inquiries and leads concerning other Motorola products
and services not listed in the Dealer Price Book to such Motorola office as may
be designated by Motorola.
(d) The Dealer Price Book and Attachment B-Finder's Terms will be published by
Motorola from time to time to keep Dealer informed about products and services
available, current prices of those products and services to Dealer, available
discounts, delivery schedules and other terms and conditions of sale and doing
business with Motorola. Dealer agrees that the entire contents of the Dealer
Price Book and Attachment B-Finder's Terms are subject to change or withdrawal
at any time at the sole discretion of Motorola and, when written notice of said
changes or withdrawals has been sent to Dealer by Motorola, all earlier
inconsistent or withdrawn contents shall be automatically superseded from and
after the effective date stated in such notices. Motorola may withdraw or
change the Dealer Price Book and Attachment B-Finder's Terms and the design or
specifications for the Products, at any time, in any way, without any liability
or obligations to Dealer or its customers.
(e) Dealer specifically acknowledges the existence of other products, product
lines and services of Motorola and agrees and consents to the limitation of
this Agreement solely to the Products, Network Services, and Maintenance as
listed in the Dealer's Price Book and Attachment B-Finder's Terms. Dealer also
specifically acknowledges that Motorola distributes various products and
services by other contractual relationships, and Dealer agrees that nothing
contained in this Agreement shall be deemed to create any express or implied
obligation on Motorola to establish any such other contractual relationship
with Dealer.
(f) Dealer agrees to limit its distribution of the Products purchased under
this Agreement to direct sale by Dealer to customers at retail for end use as
limited by the terms and conditions of this Agreement. Dealer shall sell the
Products and offer Network Services and Maintenance only from the Dealer's
location written above or such other location as is expressly authorized, in
writing, by an authorized Motorola Division General Manager. Dealer shall not
appoint any sales agent or representative (other than its employees) in
connection with the performance of this Agreement; provided, however, Motorola,
in its sole discretion upon a duly executed amendment to this Agreement, may
allow Dealer to appoint specified agents to seek sales of the Products within
Dealer's Area and promotion of Network Services and Maintenance where defined
in Attachment B-Finder's Terms.
3. SUPPLEMENTARY TERMS AND CONDITIONS, PASS THROUGH PROVISIONS
Dealer agrees that the Supplementary Terms and Conditions contained in
Attachment C are incorporated into this Agreement by this reference. Dealer
acknowledges that certain of the provisions contained in Attachment C are, by
their sense and context, intended for the end user customer who will acquire
one or more of the Products from Dealer. For each such provision in Attachment
C, Dealer agrees that both prior to and as part of each transaction between it
and its customer, Dealer will notify its customer of the specific requirements,
rights, duties and limitations contained in the Warranty/Warranty Disclaimer,
Software License and Software Warranty/Warranty Disclaimer, Patent, Copyright
and Trademarks, FCC and Other Governmental Matters provisions in Attachment C,
and any other provisions Motorola may from time to time notify Dealer are
required.
4. DEALER A NON-EXCLUSIVE DEALER
Dealer is a non-exclusive dealer. Dealer specifically acknowledges the right of
Motorola in Motorola's sole and unrestricted discretion, without any liability
or obligation to Dealer, to appoint additional dealers or finders and/or make
direct or indirect sale or distribution of any Motorola products or services,
similar or dissimilar, or any non-Motorola products or services in Dealer's
defined area of primary marketing responsibility and elsewhere, anytime and to
anyone.
5. CONFIDENTIALITY
During and for three years after the termination or expiration of this
Agreement, Dealer shall maintain in strict confidence all information disclosed
to Dealer by Motorola or others, including, but not limited to, the contents of
Dealer's Price Book and Attachment B-Finder's Terms and all revisions thereof,
all price and marketing information, customer lists, drawings, technical
information and data, and other information of any nature relating to all
Motorola products and services or the sale or distribution thereof. All
information disclosed by Motorola hereunder and information Dealer obtains in
connection with this Agreement shall be used solely in furtherance of the
distribution of Motorola Products and services.
6. AREA OF PRIMARY MARKETING RESPONSIBILITY FOR PRODUCTS
Dealer agrees that its defined role in Motorola's distribution system is
necessary in order to encourage Motorola, Dealer, and Motorola's other dealers,
distributors and resellers to make the distribution efforts necessary to expand
Motorola's distribution of Products and to provide the highest levels of
customer satisfaction. Accordingly, Dealer agrees to use its best efforts to
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promote, sell and service the Products within the territory described on
Attachment A-Area of Primary Marketing Responsibility for Products, then in
effect ("Area"). Dealer acknowledges that while it may sell Products to
customers for end use by those customers outside of Dealer's Area, Dealer's
sales volume performance as a distributor of the Products will be evaluated
based only on its sales volume performance of sales to customers for use in
Dealer's Area. Dealer's use of its best efforts within the Area is essential to
the continuation of this Agreement. Motorola may modify Dealer's Area by
revising Attachment A-Area of Primary Marketing Responsibility for Products
from time to time without any liability or obligation to Dealer.
Sales to the U.S. Government: Any direct or indirect distribution,
transshipment and/or sale of Products by Dealer to the United States Government
or any of its departments, agencies or subdivisions is prohibited.
Sales outside of the United States: Any direct or indirect distribution,
transshipment and/or sale of Products by Dealer outside of the United States is
prohibited.
7. SALES PERFORMANCE
(a) Best Efforts: Dealer agrees to use and devote its best efforts during
any term of this Agreement to actively promote Network Services, and Maintenance
and actively promote and sell the Products to maximize the sale at retail to
end users in Dealer's Area in accordance with this Agreement. Regarding the
promotion of Network Services, Dealer shall inform each customer of the radio
frequency ("RF") coverage area for each SMR and/or CR as listed in Attachment
B-Finder's Terms using only RF coverage maps supplied to Dealer by Motorola.
(b) Permitted and Prohibited Advertising: Dealer's sales and service
personnel shall be kept properly informed by Dealer as to all of the
advertising and marketing programs and policies of Motorola and shall pursue
said programs and policies in a manner reflecting the high standards, valuable
goodwill and business reputation of Motorola. To assist Dealer in promoting
sales of the Products, Motorola may furnish such promotional literature and
other advertising aids as Motorola deems necessary.
Motorola may advertise and promote the Products and Motorola may use Dealer's
name in such advertising and promotions.
Due to such things as the importance of customer contact in connection with the
sales of the Products, Dealer shall not promote, advertise, or sell the
Products outside of Dealer's Area through mail order, phone bank solicitation,
catalog sales or similar activities.
(c) Performance Standards: Motorola will evaluate Dealer's performance with
respect to the sale of Products, Network Services and Maintenance primarily on
the basis of Dealer's sales volume and promotional efforts. Sales volume shall
be measured by total number of units and/or total dollar sales per year of
Products sold by Dealer to customers for use in Dealer's Area and by total
number of units and/or total dollar revenues of Network Services and
Maintenance sold by Dealer pursuant to Attachment B-Finder's Terms and in this
Agreement. Motorola may, in its sole discretion, establish reasonable sales
objectives for Dealer for each contract term and may consider those
objectives, among other factors, in evaluating Dealer's sales performance.
Dealer shall achieve the performance standards set forth on Attachment
D-Performance Standards for Sales of Products, Network Services and
Maintenance, for all time periods set forth in said attachment. No later than
sixty (60) days prior to the expiration of the initial and any subsequent term
of this Agreement, Motorola shall provide performance standards for any
subsequent twelve (12) month term or other time period of this Agreement. If
Motorola does not provide new performance standards, within the time provided
in the preceding sentence, the previous year's standards shall apply on a
prorated basis until such time as the new performance standards are provided
to Dealer. Notwithstanding such revisions of performance standards, the
remaining provisions of this Agreement shall remain in full force and effect.
Dealer agrees that the provisions of this Paragraph are essential, fair and
reasonable and that Dealer's failure to meet a performance standard shall be
grounds for termination of this Agreement.
(d) Dealer Marketing Reports: Dealer shall provide to Motorola by the first
Wednesday of each month during any term of this Agreement, a marketing report
("Dealer Marketing Report") by customer name setting forth the number of units
of each Product sold by Dealer during the preceding month, including dollar
volume of sales by ultimate destination zip code, customer Standard Industrial
Code ("SIC"), or other categories or industry groupings requested by Motorola.
The Dealer Marketing Report Form shall also set forth the customer name and
monthly units and dollar volume of Motorola Network Services and Maintenance
sold during the same period. Dealer shall provide said information by
completing and sending to Motorola a marketing report in whatever form
requested by Motorola. The current form of marketing report is attached as
Attachment E-Dealer Marketing Report Form.
(e) Forecast: During the term of this Agreement, Dealer shall provide
Motorola, in a form to be provided by Motorola, a monthly usage forecast to
assist Motorola in maintaining an orderly production flow for the purpose of
meeting Dealer's delivery requirements. Dealer's failure to provide
such information may be considered cause by Motorola for excusable delivery
delay.
(f) Inspection of Dealer's Facilities: Motorola may inspect Dealer's
facilities and operations as related to Dealer's performance under this
Agreement during normal business hours and without prior notice.
8. ETHICAL PRACTICES
Motorola has historically depended on product quality and superiority,
combined with outstanding support capability, to market its products
throughout the world. Motorola believes it can continue to grow and to
prosper without succumbing to legally questionable or unethical demands or
practices. Dealer agrees to conduct its business in an ethical manner.
9. PRODUCT PURCHASES DO NOT INCLUDE COMMUNICATIONS SERVICES
Dealer agrees that its purchase of Products under this Agreement does not
include communications services such as Specialized Mobile Radio ("SMR"),
community repeater ("CR") or other communications services. Dealer or the end
user must enter into separate agreements with the service provider(s) to obtain
such services. MOTOROLA DISCLAIMS LIABILITY FOR RANGE, COVERAGE, AVAILABILITY
OR OPERATION OF ANY COMMUNICATIONS SYSTEM.
10. PARTY RELATIONSHIP
This Agreement does not create an agency, joint venture or partnership between
Dealer and Motorola. Neither party shall impose or create any obligation or
responsibility, express or implied, or make any promises, representations or
warranties on behalf of the other party, other than as expressly provided
herein. Nothing in this Agreement shall be construed so as to make Dealer, its
employees or agents an employee of Motorola, and Dealer shall not be entitled
to participate in any of Motorola's employee benefit programs. Motorola shall
not be liable to pay wages, withhold any taxes, provide any insurance, or
otherwise be obligated as an employer. Motorola shall not be responsible to any
of the various governmental agencies for Worker's Compensation Insurance or any
other type of employee insurance, withholding taxes, or social security taxes
for Dealer, employees or other agents of Dealer.
The relationship created by this Agreement is not intended by the parties to
constitute the granting of a franchise to Dealer by Motorola, and no federal
state or local franchise statute, law, regulation or rule is intended by the
parties to apply to such relationship; nor shall any such franchise statute,
law, regulation or rule be deemed or construed to apply to the formation,
operation, administration, termination or expiration of this Agreement. Dealer
expressly acknowledges and confirms that it has not paid and will not pay any
fee to Motorola in connection with this Agreement, and that none of the terms,
conditions or amounts provided for in this Agreement can be characterized to
constitute such a fee.
11. TERMINATION
This Agreement may be terminated:
(a) By either party, without cause and for its convenience, upon thirty (30)
days prior written notice to the other party at any time after the expiration
of the first one-hundred and twenty (120) days of the initial term; or
(b) By Motorola at any time upon the occurrence of any of the following
events:
(1) Dealer's failure to meet the sales performance standards set
forth in Paragraph 7, Sales Performance;
(2) a change in the control, management or ownership of Dealer which
in Motorola's sole opinion is unacceptable to Motorola;
(3) Dealer's ceasing to function as a going concern, declaring
bankruptcy, having a receiver for it appointed, or otherwise
taking advantage of any insolvency law;
(4) Dealer's failure to cure any breach of this Agreement within
fifteen (15) days after Motorola's written notification to
Dealer of such breach;
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(5) any untrue statement of a material fact, or omission to state a
material fact in any communication provided by Dealer to anyone
in connection with this Agreement, its terms, conditions or
amounts, the performance of this Agreement or any Motorola
products or services referred to by this Agreement;
(6) Dealer's engaged in any act or failure to act related to the
subject matter of this Agreement which is determined to be
illegal or an unfair or deceptive trade practice in violation of
any applicable federal, state or local law, or which in the
opinion of counsel to Motorola constitutes such an illegal,
unfair, or deceptive act or practice;
(7) any unauthorized use by Dealer of any sales agent or
representative in connection with the performance of this
Agreement;
(8) receipt of customer complaints which, in Motorola's sole
opinion, indicate that Dealer is not achieving Motorola's
standards of total customer satisfaction;
(9) Dealer's failure to conduct its business in an ethical manner
as required by Paragraph 8 - Ethical Practices.
12. EFFECT OF TERMINATION OR EXPIRATION
IF THIS AGREEMENT IS TERMINATED OR EXPIRES, OR IF MOTOROLA CANCELS ANY OF
DEALER'S ORDERS FOR THE PRODUCTS WHICH REMAIN UNDELIVERED ON THE EFFECTIVE DATE
OF ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT, EACH SUCH ACT OR
OCCURRENCE, AS APPLICABLE, IN AND OF ITSELF OR IN COMBINATION, CANNOT OPERATE
TO CREATE A CLAIM IN DEALER AGAINST MOTOROLA FOR ANY DAMAGES WHATSOEVER
(INCLUDING, BUT NOT LIMITED TO, ANY CLAIM FOR LOSS OF PROFITS OR PROSPECTIVE
PROFITS) WHICH ARE IN ANY WAY RELATED TO THE SALE OR PURCHASE OF PRODUCTS OR
SERVICES UNDER THIS AGREEMENT.
(b) All sums owed by either party to the other shall become due and payable
immediately upon termination or expiration of this Agreement.
(c) Upon termination or expiration of this Agreement, Dealer shall, within
five (5) working days of such termination or expiration, deliver to such
address as Motorola shall specify all Motorola property, including, but not
limited to, all equipment, customer data, software items, catalogs, drawings,
designs, engineering photographs, samples, literature, sales aids and any
confidential business information and trade secrets of Motorola in Dealer's
possession along with all copies.
(d) Upon termination or expiration of this Agreement, Motorola shall be
relieved of any obligation to make any further shipments under this Agreement
and, with respect to termination, may cancel all of Dealer's unshipped orders
for the Products, irrespective of previous acceptance by Motorola. Motorola
shall have no obligation or liability to Dealer, its prospective customers or
any other party in connection with any such cancellations.
(e) Motorola's acceptance of any order by Dealer for Products or customer
order submitted by Dealer for Network Services or Maintenance after the
termination or expiration of this Agreement shall not be construed as a renewal
or extension of this Agreement, nor as a waiver of termination or expiration of
this Agreement.
(f) The terms, provisions, representations and warranties contained in this
Agreement that by their sense and context are intended to survive the
performance thereof by either or both parties shall so survive the completion
of performances and termination or expiration of this Agreement, including
without limitation the making of any and all payments due under this Agreement.
13. OPTION TO REPURCHASE PRODUCTS
(a) Upon any termination or expiration of this Agreement, Dealer shall notify
Motorola in writing of its currently existing inventory of Products and
Motorola shall have the option, but not the obligation, to repurchase on the
basis of last purchased by Dealer being the first repurchased by Motorola, all
or any part of Dealer's remaining inventory of Products at the net price paid
to Motorola for such inventory of Motorola's price for such Products to its
other dealers at the time of such repurchase, whichever is lower. Said option
may be exercised upon written notice to Dealer mailed with fourteen (14) days
following the receipt by Motorola of Dealer's written inventory report. Upon
exercise of said option to repurchase, Motorola and Dealer shall take an
inventory of all Products in control of Dealer.
(b) Upon any termination or expiration of this Agreement, prior to selling
Products in its control to any third party, Dealer shall first have offered in
writing to sell such Products to Motorola for the lower of Dealer's net purchase
price or the price offered by such third party, and Motorola shall have refused
to accept such offer within ten (10) days after receipt thereof.
(c) In the event Motorola exercises its option to repurchase all or any part
of Dealer's inventory of Products, Dealer hereby agrees to sell such inventory
to Motorola as of the date of termination or expiration of this Agreement, and
to deliver the same immediately upon such termination, at Motorola's sole cost
and expense, to such place(s) as Motorola shall designate, free and clear of
any liens or encumbrances thereon, undamaged and in the original and unopened
packaging therefor.
(d) Motorola shall pay Dealer for the inventory of Motorola Products
repurchased within thirty (30) days after receipt of said Motorola Products by
Motorola. Motorola shall have the right to offset against any monies payable
hereunder for repurchased Products any monies that are due and owing from
Dealer to Motorola as of the date any such payment is due.
14. MOTOROLA FINDER FOR DEALER NETWORK SERVICES
If Dealer owns or manages any communications Network Services systems, such as
SMRs and CRs, within the United States, Dealer appoints Motorola, subject to
Motorola's express written acceptance, as a finder for such services under the
same terms and conditions under which Dealer is a finder for Motorola of
Network Services under this Agreement.
15. WAIVER
The failure of either party to insist in any one or more instances upon the
performance of any of the terms, covenants, or conditions in this Agreement or
to exercise any right under this Agreement, shall not be construed as a waiver
or relinquishment of the future performance of any such term, covenant, or
condition or the future exercise of any such right, and the obligation of each
party with respect to such future performance or future exercise of any such
right shall continue in full force and effect.
16. MOTOROLA COMMUNICATION PRODUCTS
RESELLER AGREEMENT TERMINATED
In consideration of Motorola entering into this Agreement, Dealer
agrees that any existing Motorola Communication Products Reseller agreement
between Dealer and Motorola for the sale of Motorola branded products is
terminated upon the execution of this Agreement in accordance with all the terms
and conditions of any such Motorola Communication Products Reseller agreement.
Any software license agreements between Dealer and Motorola entered into in
connection with such Reseller agreement are also terminated.
17. LIMITATIONS
(1) LIMITATION OF LIABILITY. EXCEPT FOR PERSONAL INJURY AND EXCEPT AS PROVIDED
FOR IN ATTACHMENT C IN THE SECTION "PATENT, COPYRIGHT AND TRADEMARKS",
MOTOROLA'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER
FOR BREACH OF CONTRACT, WARRANTY, MOTOROLA'S NEGLIGENCE, STRICT LIABILITY IN
TORT OR OTHERWISE, IS LIMITED TO THE PRICE OF THE PARTICULAR PRODUCTS SOLD
HEREUNDER WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. DEALER'S SOLE
REMEDY IS TO REQUEST MOTOROLA AT MOTOROLA'S OPTION TO EITHER REFUND THE
PURCHASE PRICE, OR REPAIR OR REPLACE PRODUCTS THAT ARE NOT AS WARRANTED, IN NO
EVENT, WHETHER FOR BREACH OF CONTRACT, WARRANTY, MOTOROLA'S NEGLIGENCE, STRICT
LIABILITY IN TORT, OR OTHERWISE, WILL MOTOROLA BE LIABLE FOR INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, FRUSTRATION OF
ECONOMIC OR BUSINESS EXPECTATIONS, LOSS OF PROFITS, LOSS OF DATA, COST OF
CAPITAL, COST OF SUBSTITUTE PRODUCT(S), FACILITIES OR SERVICES, DOWNTIME COST
OR ANY CLAIM AGAINST DEALER BY ANY OTHER PARTY.
(2) INSURANCE. IT IS FURTHER UNDERSTOOD THAT MOTOROLA IS NOT AN INSURER AND
THAT DEALER SHALL OBTAIN ALL INSURANCE, REQUIRED BY THIS AGREEMENT AND THAT
MOTOROLA DOES NOT REPRESENT OR WARRANT THAT MOTOROLA PRODUCTS WILL AVERT OR
PREVENT OCCURRENCES, OR THE CONSEQUENCES THEREFROM, WHICH ARE MONITORED,
DETECTED OR CONTROLLED WITH USE OF THE PRODUCTS.
(3) TIME TO XXX. EXCEPT FOR MONEY DUE UPON AN OPEN AC-
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COUNT, NO ACTION SHALL BE BROUGHT FOR ANY BREACH OF THIS AGREEMENT MORE THAN
TWO (2) YEARS AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION EXCEPT WHERE A SHORTER
LIMITATION PERIOD IS PROVIDED BY APPLICABLE LAW.
(4) NO REPRESENTATIONS. THE ISSUANCE OF INFORMATION, ADVICE, APPROVALS,
INSTRUCTIONS OR COST PROJECTIONS BY MOTOROLA'S SALES PERSONNEL OR OTHER
REPRESENTATIVES SHALL BE DEEMED EXPRESSIONS OF PERSONAL OPINION ONLY AND SHALL
NOT AFFECT MOTOROLA'S AND DEALER'S RIGHTS AND OBLIGATIONS HEREUNDER UNLESS THE
SAME IS IN WRITING AND SIGNED BY AN AUTHORIZED MOTOROLA DIVISION GENERAL
MANAGER WITH THE EXPLICIT STATEMENT THAT IT CONSTITUTES AN AMENDMENT TO THIS
AGREEMENT.
18. GENERAL
(a) All Attachments and the Dealer Price Book and any and all deletions,
additions and revisions thereto, are incorporated into this Agreement and made
a part hereof.
(b) This Agreement can be amended as follows:
(i) any additions, deletions, amendments or changes ("modification") to
the Dealer Price Book, or Attachments (other than Attachment
C-Supplementary Terms and Conditions) can be unilaterally made by
Motorola; Dealer's failure to terminate this Agreement when it is
sent notice of the modification shall be deemed Dealer's consent to
the modification, and this Agreement shall be deemed amended
accordingly; or,
(ii) any other additions, deletions, amendments or changes to this
Agreement must be in writing and signed by an authorized Motorola
Division General Manager and Dealer.
(c) Dealer acknowledges that it has read and understands these terms and
conditions and agrees to be bound by them, and that this Agreement, including
the Attachments and the Dealer Price Book, is the complete and exclusive
statement of the agreement between the parties and supersedes all proposals,
oral or written, and all other communications between the parties relating to
the subject matter hereof.
(d) This Agreement is binding upon, and shall inure to the benefit of, the
parties hereto and their respective heirs, executors, legal representatives,
successors and assigns. Dealer may not assign or subcontract this Agreement or
any interest herein, including, without limitation, rights and duties of
performance, without the express prior written consent of an authorized
Motorola Division General Manager.
(e) If any provision of this Agreement is contrary to, prohibited by or held
invalid by any law, rule, order or regulation of any government or by the final
determination of any state or federal court, such invalidity shall not affect
the enforceability of any other provisions not held to be invalid.
(f) Section and paragraph headings used in this Agreement are for convenience
only and are not to be used to construe the provisions of this Agreement.
(g) THIS AGREEMENT IS DEEMED BY THE PARTIES TO HAVE BEEN ENTERED INTO IN
ILLINOIS; AND THIS AGREEMENT'S INTERPRETATION, CONSTRUCTION AND THE RIGHTS,
DUTIES AND REMEDIES FOR ITS ENFORCEMENT OR BREACH ARE TO BE DECIDED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
Motorola and Dealer will attempt to settle any claim or controversy arising out
of this Agreement through consultation and negotiation in good faith and a
spirit of mutual cooperation. If those attempts fail, then the dispute will be
mediated by a mutually acceptable mediator to be chosen by Motorola and Dealer
within thirty (30) days after written notice by one of us demanding non-binding
mediation. Neither one of us may unreasonably withhold consent to the selection
of a mediator, and Motorola and Dealer will share the costs of the mediation
equally. By mutual agreement, however, Motorola and Dealer may postpone
mediation until we have completed some specified but limited discovery about
the dispute. The parties may also agree to replace mediation with some other
form of non-binding alternate dispute resolution ("ADR").
Any dispute which we cannot resolve between us through negotiation or mediation
within two (2) months of the date of the initial demand for it by one of us may
then be submitted to a court located in Illinois for resolution. Both Motorola
and Dealer consent to jurisdiction over it by such a court. The use of any ADR
procedures will not be construed under the doctrine of laches, waiver or
estoppel to affect adversely the rights of either party. Nothing will prevent
either of us from resorting to the judicial proceedings mentioned in this
paragraph if (a) good faith efforts to attempt resolution of the dispute under
these procedures have been unsuccessful or (b) interim relief from the court is
necessary to prevent serious and irreparable injury to one of the parties or
to others.
(h) If Dealer is a corporation, the Attestation should be completed, the
corporate seal affixed and a witness is not necessary. If Dealer is an
individual or a partnership, the Attestation should not be completed, but a
witness should sign.
(i) Notices: Any notice required or permitted herein shall be in writing and
shall be hand delivered or mailed, postage fully prepaid, properly addressed to
the party to be notified at the address shown below or the last known address
given by such party to the other. Any such notice shall be considered to have
been given when hand delivered or on the second business day after it has been
deposited in the mail in the manner herein provided.
(j) Acceptance: This Agreement is an offer by Dealer to Motorola to be
appointed as a dealer as set forth in this Agreement. This Agreement shall not
become a binding contract between Dealer and Motorola until two (2) days after
the date Motorola accepts this Agreement by sending Dealer a fully executed copy
of the Agreement from the office of the Motorola Division General Manager
authorized to make such appointments in the geographic area Dealer is located in
("Agreement Date"). No act or omission regarding this Agreement or its
performance by anyone, including Dealer or Motorola, which occurs prior to the
Agreement Date can be characterized by anyone to either constitute acceptance of
this Agreement by Motorola or otherwise create a claim in anyone related in any
way to the subject matter of this Agreement.
19. ATTACHMENTS
The following attachments are attached hereto and made a part hereof.
A. Area of Primary Marketing Responsibility for Products
B. Finder's Terms
C. Supplementary Terms and Conditions
D. Performance Standards For Sales of Products, Network Services and
Maintenance
E. Dealer Marketing Report Form
F. Dealer Product Order Form
G. Uniform Commercial Code UCC-1
The parties deem this Agreement to be executed by their duly authorized
representatives on the Agreement Date.
MOTOROLA, INC. DEALER
By: Xxx Xxxxxxxx By: Xxxxx X. Xxxxxx
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(Authorized Signature) (Authorized Signature)
Signature Date Nov. 8, 1994
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Print Name: Xxx Xxxxxxxx Print Name: Xxxxx X. Xxxxxx
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V.P. and General Manager
Title: Division General Manager Print Title: President
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Witness or Attest:
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Print Motorola Address For Notices: Print Dealer Address For Notices:
Motorola Champion Comm. Services, Inc.
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RPG Distribution 0000 Xxxxx #2121
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0000 Xxxxxx Xxxxx Xxxxxxx, Xx. 00000
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Wood Xxxx, XX 00000 (SEAL)
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DEALER NAME: Champion Comm. Services, Inc.
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AGREEMENT DATE: 9/22/94
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REVISION DATE:
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MOTOROLA AUTHORIZED TWO-WAY RADIO DEALER AGREEMENT
ATTACHMENT A
AREA OF PRIMARY MARKETING RESPONSIBILITY FOR PRODUCTS
AREA OF PRIMARY MARKETING RESPONSIBILITY FOR PRODUCTS
Dealer's area of primary marketing responsibility for Products shall be
the following counties:
Harris, Waller, Xxxxxxxxxx, Liberty, Xxxxxxxx, Galveston, Brazoria, Fort Bend,
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& Austin, Texas, & Xxxxxx County, Texas.
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6
DEALER NAME: Champion Comm. Services, Inc.
-----------------------------
CITY/STATE: Houston, Tx.
-----------------------------
AGREEMENT DATE: 9/22/94
-----------------------------
REVISION DATE:
-----------------------------
MOTOROLA AUTHORIZED TWO-WAY RADIO DEALER AGREEMENT
ATTACHMENT B
FINDER'S TERMS
1. GENERAL FINDER TERMS AND CONDITIONS.
The following terms and conditions apply to Dealer's appointment as a finder
for Network Services and Maintenance:
(a) Except only in cases where the Dealer as finder has prior written approval
from Motorola to use different prices, the Dealer shall solicit and take all
orders for Network Services and Maintenance at the prices designated by
Motorola which are then current at the time of taking the order. Motorola shall
have the right to change these prices at any time.
(b) All customer orders must be taken on Motorola's then current applicable
standard contract signed by the customer and shall state that it is an offer to
purchase and will not become binding until accepted by Motorola. Prior to the
taking of an order, Dealer as finder shall provide any applicable warranty(s),
license(s) and coverage maps to the customer as required by this Agreement.
Motorola may also establish other order entry procedures. Verbal orders will
not be accepted.
(c) Dealer in its capacity as a finder is not a distributor or purchaser of
Maintenance and Network Services and shall have no right to purchase same.
(d) Motorola will invoice customers directly for Network Services and
Maintenance and payment therefor will be made directly to Motorola by the
customer. Under no circumstance will Motorola invoice the Dealer for a
customer's order, and the Dealer shall not receive or accept any payments from
the customer except by check or money order referencing the specific order and
made payable to Motorola, Inc.
(e) Motorola reserves the right to exercise its sole determination of the
acceptability of a customer order from a credit, financial, legal or any other
standpoint. Motorola's failure to accept a customer order or its failure or
delay in the performance of any contract once accepted shall not operate to
give or create in the Dealer any claim for damages or cause of action of any
kind against Motorola, any subsidiary or any employee or officer thereof.
(f) Compensation as Finder:
(1) Motorola shall not be responsible for nor will it provide any part of
the Dealer's expenses as a finder. Dealer's sole compensation as a
finder shall be the finder's fee set forth in this Attachment B. A
finder fee will not be paid on sales, use, retailers, occupation and
similar taxes.
(2) In no event will any finder fee be paid to the Dealer on orders procured
by the Dealer from potential Network Services or Maintenance customers
not approved for Dealer's solicitation or outside the locations assigned
for the applicable Network Services and Maintenance as defined in this
Attachment B.
(3) All finder fees due at the time of termination of this Agreement shall
be paid within thirteen (13) days of termination or expiration, and fees
that become due after termination shall be paid within thirteen (13)
days of the date on which such fees become due.
2. NETWORK SERVICES FINDER'S FEE.
Motorola may unilaterally change the following Network Services finder's fees
upon thirty (30) days written notice to Dealer. If the end user maintains
service for less than six (6) months for reasons other than verifiable RF
coverage or interference problems, Motorola may deduct all finders fees paid
Dealer by Motorola for said end user from any other monies owed by Motorola to
Dealer or debit any of Dealer's accounts with Motorola in the amount of said
fees.
All SMR user agreements shall be offered by Dealer pursuant to the then current
Motorola SMR user agreements as supplied to Dealer.
(a) SMR Systems:
While the Motorola Authorized Two-Way Radio Dealer Agreement remains in effect,
Motorola will pay Dealer: a one-time fee of $100.00 for dispatch service and a
one-time fee of $150.00 for duplex interconnect service (where available) per
unit of new Motorola user primary equipment sold to an end user by Dealer that
is added to the SMR systems listed below. Fee payments will be made within
thirty (30) days after Motorola's receipt from the end user of the initial
payment for the Network Services.
Dealer shall only offer Network Services on the below-listed SMRs:
System No. SMR Call Sign City State
---------- ------------- ---- -----
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Those Counties as listed on Attachment "A"
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(b) Community Repeaters:
While the Motorola Authorized Two-Way Radio Dealer Agreement remains in effect,
Motorola will pay to Dealer a one-time fee of $30.00 per unit of new end user
Motorola equipment sold to an end-user by Dealer that is added by Dealer to the
community repeaters listed below. Fee payments will be made within thirty (30)
days after Motorola's receipt from the end user of the initial payment for the
Network Services.
Dealer shall only offer Network Services on the below-listed CRs:
CR City State
-- ---- -----
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Those Counties as listed on Attachment "A"
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(See other side for additional terms)
7
3. MAINTENANCE FINDER'S FEE:
(a) Dealer will be paid a Maintenance finder's fee of eight and three/tenths
percent (8.3%) (one month) of the first year's service dollar amount for each
Motorola Service Agreement sold. Five percent (5%) of the yearly service dollar
amount will be paid to Dealer for each year thereafter that the Service
Agreement remains in force with Motorola. All Motorola Service Agreements shall
be offered by Dealer pursuant to the then current Motorola Service Agreement
form as supplied to Dealer by Motorola.
(b) Finder's fees shall be due thirty (30) days after receipt by Motorola from
the end user of the initial payment for each year. Finder's fees shall only be
paid on Service Agreements while in force and during the term of the Motorola
Authorized Two-Way Radio Dealer Agreement. Finder's fees paid on Motorola
Service Agreements which fail to remain in force for a period of twelve (12)
months or which are in force at the termination or expiration of the Motorola
Authorized Two-Way Radio Dealer Agreement will be prorated and Dealer shall
return any overpayment to Motorola.
(c) Dealer shall only offer Motorola Service Agreements to end users located in
the following counties:
Those Counties as listed on Attachment "A"
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8
DEALER NAME: Champion Comm. Services, Inc.
-------------------------------
CITY/STATE: Houston, TX.
-------------------------------
AGREEMENT DATE: 9/22/94
-------------------------------
REVISION DATE: 10/24/94
-------------------------------
MOTOROLA AUTHORIZED TWO-WAY RADIO DEALER AGREEMENT
ATTACHMENT B
FINDER'S TERMS
1. GENERAL FINDER TERMS AND CONDITIONS
The following terms and conditions apply to Dealer's appointment as a finder
for Network Services and Maintenance:
(a) Except only in cases where the Dealer as finder has prior written
approval from Motorola to use different prices, the Dealers shall solicit and
take all orders for Network Services and Maintenance at prices designated by
Motorola which are then current at the time of taking the order. Motorola shall
have the right to change these prices at any time.
(b) All customer orders must be taken on Motorola's then current applicable
standard contract signed by the customer and shall state that it is an offer to
purchase and will not become binding until accepted by Motorola. Prior to the
taking of an order, Dealer as finder shall provide any applicable warranty(s),
license(s) and coverage maps to the customer as required by this Agreement.
Motorola may also establish other order entry procedures. Verbal orders will
not be accepted.
(c) Dealer in its capacity as a finder is not a distributor or purchaser of
Maintenance and Network Services and shall have no right to purchase same.
(d) Motorola will invoice customers directly for Network Services and
Maintenance and payment therefor will be made directly to Motorola by the
customer. Under no circumstances will Motorola invoice the Dealer for a
customer's order, and the Dealer shall not receive or accept any payments form
the customer except by check or money order referencing the specific order and
made payable to Motorola, Inc.
(e) Motorola reserves the right to exercise its sole determination of the
acceptability of a customer order from a credit, financial, legal or any other
standpoint. Motorola's failure to accept a customer order or its failure or
delay in the performance of any contract once accepted shall not operate to
give or create in the Dealer any claim for damages or cause of action of any
kind against Motorola, any subsidiary or any employee or officer thereof.
(f) Compensation as Finder:
(1) Motorola shall not be responsible for nor will it provide any part
of the Dealer's expenses as a finder. Dealer's sole compensation
as a finder shall be the finder's fees set forth in this Attachment
B. A finder fee will not be paid on sales, use, retailers,
occupation and similar taxes.
(2) In no event will any finder fee be paid to the Dealer on orders
procured by the Dealer from potential Network Services or
Maintenance customers not approved for Dealer's solicitation or
outside the locations assigned for the applicable Network Services
and Maintenance as defined in this Attachment B.
(3) All finder fees due at the time of termination of this Agreement
shall be paid within thirteen (13) days of termination or
expiration, and fees that become due after termination shall be
paid within thirteen (13) days of the date on which such fees
become due.
2. NETWORK SERVICES FINDER'S FEE.
Motorola may unilaterally change the following Network Services finder's fees
upon thirty (30) days written notice to Dealer. If the end user maintains
service for less than six (6) months for reasons other than verifiable RF
coverage or interference problems, Motorola may deduct all finders fees paid
Dealer by Motorola for said end user from any other monies owned by Motorola to
Dealer or debit any of Dealer's accounts with Motorola in the amount of said
fees.
All SMR user agreements shall be offered by Dealer pursuant to the then current
Motorola SMR user agreements as supplied to Dealer.
(a) SMR Systems:
While the Motorola Authorized Two-Way Radio Dealer Agreement remains in effect,
Motorola will pay Dealer: a one-time fee of $100.00 for dispatch service and a
one-time fee of $150.00 for duplex interconnect service (where available) per
unit of new Motorola user primary equipment sold to an end user by Dealer that
is added to the SMR systems listed below. Fee payments will be made within
thirty (30) days after Motorola's receipt from the end user of the initial
payment for the Network Services.
Dealer shall only offer Network Services on the below-listed SMRs:
System No. SMR Call Sign City State
---------- ------------- ---- -----
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See attached list
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Page # 1 Houston 900 MHz Network
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Page # 2 Houston Metro 800 Systems
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Page # 3 Houston Rural 800 Systems
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(b) Community Repeaters:
While the Motorola Authorized Two-Way Radio Dealer Agreement remains in effect,
Motorola will pay to Dealer a one-time fee of $30.00 per unit of new end user
Motorola equipment sold to an end-user by Dealer that is added by Dealer to the
community repeaters listed below. Fee payments will be made within thirty (30)
days after Motorola's receipt from the end user of the initial payment for the
Network Services.
Dealer shall only offer Network Services on the below-listed CRs:
CR City State
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(See other side for additional terms)
9
3. MAINTENANCE FINDER'S FEE:
(a) Dealer will be paid a Maintenance finder's fee of eight and
three/tenths percent (8.3%) (one month) of the first year's service dollar
amount for each Motorola Service Agreement sold. Five percent (5%) of the
yearly service dollar amount will be paid to Dealer for each year thereafter
that the Service Agreement remains in force with Motorola. All Motorola Service
Agreements shall be offered by Dealer pursuant to the then current Motorola
Service Agreement form as supplied to Dealer by Motorola.
(b) Finder's fees shall be due thirty (30) days after receipt by Motorola
from the end user of the initial payment for each year. Finder's fees shall
only be paid on Service Agreements while in force and during the term of the
Motorola Authorized Two-Way Radio Dealer Agreement. Finder's fees paid on
Motorola Service Agreements which fail to remain in force for a period of
twelve (12) months or which are in force at the termination or expiration of
the Motorola Authorized Two-Way Radio Dealer Agreement will be prorated and
Dealer shall return any overpayment to Motorola.
(c) Dealer shall only offer Motorola Service Agreements to end users
located in the following counties:
Harris, Waller, Xxxxxxxxxx, Liberty,
Xxxxxxxx, Galveston, Brazoria, Fort Bend,
Austin and Xxxxxx Counties, TX.
10
HOUSTON METRO 900MHz NETWORK
CALL ICO/ FREE PASS
LOCATION/LICENSEE SYS# SIGN DISPATCH HARK MINS ATB THRU
----------------- --------- ------------- ---------- ------ ------ ----- ------
ALLIED 1A28 15 25/5 0 .25 5
Motorola, Inc./ WNID263/
Trunked Mobile Radio, Inc. WNKL350
ALLIED 1B10 15 25/5 0 .25 5
Metrolink Mobile Tele., Inc./ WNID219/
ANSA Comm., Inc. WNKL369
ALLIED OF13 WNKX736 15 25/5 0 .25 5
Xxxxx Community Property Trust
ALLIED 1C35 15 25/5 0 .25 5
C & E Inc./ WNKL337/
Xxxxxxx X. Xxxxxxxxx XXXX000
XXXXXXXXX XX00 XXXX000 13 25/5 0 .25 0
Xxxxx Xxxxxxxxxxx, Xxx.
XXXXXXX XX00 XXXX000 13 25 0 .25 5
Mobile Message Service of Texas, Inc.
HITCHCOCK XX00 XXXX000 13 25 0 .25 5
Leader Communications Inc.
XXXXXXXXX 0X00 XXXX000 13 25/5 0 .25 5
Xxxxxx Xxxxxx
HEMPSTEAD 2615 WNKL333 13 25/5 0 .25 5
Xxxxxx Xxx
XXXXX 0X0X XXXX000 13 25/5 0 .25 5
CLW Communications Inc.
BRAZORIA OD37 WNKL349 13 25/5 0 .25 5
Motorola, Inc.
INTERCONTINENTAL AIRPORT 2BOE WNKL394 13 25 0 .25 5
Motorola, Inc.
NOTES:
------
$25.00 Telephone includes Dispatch. Show published rate for Dispatch on contract
and compute Interconnect rate as difference between Dispatch rate and $25.00.
PRICES EFFECTIVE 7/1/94
11
HOUSTON TRADE AREA (METRO SYSTEMS)
CALL ICO/ FREE ROAMER
LOCATION/LICENSEE SYS# SIGN DISPATCH HARK MINS ATB FLEET
----------------- ---- ------- -------- ---- ---- --- ------
HITCHCOCK TX 1006 WNAF809 18 30 0 .30 $10/1
Motorola, Inc.
HOUSTON/ALLIED TX 1423 WNAF881 18 30/5 0 .30 $10/1
Motorola, Inc. DISPATCH AIRTIME BILLING: 150 FREE MIN/UNIT/.15/MIN.
AIRTIME IS CUMULATIVE FOR SYSTEM.
HOUSTON/HOU-GAL TX 121D WNAF885 18 30/5 0 .30 $10/1
Leader Comm. Inc. DISPATCH AIRTIME BILLING: 150 FREE MIN/UNIT/.15/MIN.
AIRTIME IS CUMULATIVE FOR SYSTEM.
HOUSTON I TX 013B WZZ577 18 30/5 0 .30 $10/1
Motorola SMR, Inc. DISPATCH AIRTIME BILLING: 150 FREE MIN/UNIT/.15/MIN.
AIRTIME IS CUMULATIVE FOR SYSTEM.
HOUSTON II TX 112C WNAF893 18 30 0 .30 $10/1
Motorola SMR, Inc. DISPATCH AIRTIME BILLING: 150 FREE MIN/UNIT/.15/MIN.
AIRTIME IS CUMULATIVE FOR SYSTEM.
MISSOURI CITY I TX 012A KRR542 18 30 0 .30 $10/1
Motorola, Inc.
MISSOURI CITY II TX 1517 WNAF712 18 30 0 .30 $10/1
Motorola, Inc.
TAMINA TX 100F WNAF873 18 30 0 .30 $10/1
Motorola, Inc.
BRAZORIA TX 1130 WNAF716 18 30/5 0 .30 $10/1
Motorola, Inc.
NOTES:
1. Interconnect fee in addition to Dispatch on primary system. Pass thru
charge on primary (not to exceed $10.00) should be indicated on User
Agreement.
2. Show HARK charge as separate line on User Agreement.
3. Subfleet $1.00 per subfleet per unit ($3.00 max).
4. Private Conversation $1.00 per unit per system ($3.00 max).
5. Hook-up charges: $50 per customer for up to three SMR sites, $100 per
customer for four or more sites. $100 reconnect fee if disconnected for
non-payment.
ROAMERS
1. Must be primary user on one site to qualify for roamer rate, $1.00 pass
thru charges on roamer systems. (applies to interconnect only)
2. Private Fleet (Dispatch) must be primary user on one site. $3.00 per
unit per system. Private Fleet (Interconnect) $10.00 per unit per
system in addition to dispatch, $.30 per minute, no free time.
3. If primary on a MESMR, Primary rates will also be charged on MO/MCSMR.
PRICES EFFECTIVE 5/15/94
12
HOUSTON TRADE AREA (RURAL SYSTEMS)
CALL ICO/ FREE ROAMER
LOCATION/LICENSEE SYS# SIGN DISPATCH HARK MINS ATB FLEET
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BAY CITY TX 1820 WNDH847 14 30/5 0 .30 $2/.30
Trunked Mobile Radio Systems
CAMERON TX 1908 WNHJ762 12 25 30 .25 $2/.30
Motorola, Inc.
CARTHAGE, TX 1E34 WNNM221 12 25/5 0 .15 $2/.30
Motorola, Inc.
COLUMBUS, TX 210B WNKL311 12 25/5 30 .25 $2/.30
Trunked Mobile Radio Systems
XXXXXXX TX 3537 WNXT312 12 25 30 .25 $2/.30
Eastex communications
HUNTSVILLE TX 1031 KNIA947 12 25/5 0 .15 $2/.30
Motorola, Inc.
XXXXXX XX 0X0X WNNR309 12 25/5 0 .15 $2/.30
Motorola, Inc.
LIVINGSTON TX 1907 WNGC429 12 25 0 .15 $2/.30
Eastex Communications
XXXXXX TX 120A WNAC639 13 30 30 .30 $5/.30
Motorola, Inc.
PLUM GROVE TX 183F WNPQ808 12 25 0 .15 $2/.30
Motorola, Inc.
VIDOR TX 152B 12 25/5 0 .15 $5/.30
A & W Data Comm. WNAY630
Xxxxxx Xxxxxxxx WNPQ784
NOTES:
------
1. Interconnect fee includes Dispatch on primary system. Pass thru charge on
primary (not to exceed $10.00) should be indicated on User Agreement.
2. Show HARK charge as separate line on User Agreement.
3. Subfleet $1.00 per subfleet per unit ($3.00 max).
4. Private Conversation $1.00 per unit per system ($3.00 max).
5. Hook-up charges; $50 per customer for up to three SMR sites, $100 per
customer for four or more sites. $100 reconnect fee if disconnected for
non-payment.
ROAMERS
-------
1. Must be primary user on one site to qualify for roamer rate, $1.00 pass
thru charges on roamer systems. (applies to interconnect only)
2. Private Fleet (Dispatch) must be primary user on one site. $3.00 per unit
per system. Private Fleet (Interconnect) $10.00 per unit per system includes
dispatch, $.30 per minute, no free time, no pass thru charges.
3. If primary on a MESMR, primary rates will also be charged on MO/MCSMR.
PRICES EFFECTIVE 5/15/94
13
DEALER NAME: Champion Comm. Services, Inc.
-----------------------------
CITY/STATE: Houston, TX
-----------------------------
AGREEMENT DATE: 9/22/94
-----------------------------
REVISION DATE:
-----------------------------
MOTOROLA AUTHORIZED TWO-WAY RADIO DEALER AGREEMENT
ATTACHMENT C
SUPPLEMENTARY TERMS AND CONDITIONS
A. ORDERS, ACCEPTANCE, CREDIT APPROVAL
Purchase and sale shall occur only by Motorola's acceptance of orders submitted
by Dealer. An order may be submitted on the Dealer Product Order Form attached
to the Motorola Authorized Two-Way Radio Dealer Agreement as Attachment F.
Facsimile, telegraph and verbal orders may also be submitted. Acceptance of an
individual order shall only occur when a Motorola invoice is sent to Dealer.
Dealer acknowledges and agrees that the invoice is accurate and final unless
objected to in writing within ten (10) days of receipt by Dealer.
Acceptance shall be only upon the terms and conditions of the Agreement and the
listed Attachments and the Dealer Price Book. The only effect of any terms and
conditions in Dealer's purchase orders or elsewhere shall be to request the
time and place of delivery (only to the Dealer's location(s) expressly
authorized by Paragraph 2(f) of this Agreement) and number of Products to be
delivered, but they shall not change, alter or add to these terms and
conditions in any way. One of the conditions of acceptance is Dealer's
obtaining and maintaining credit approval from Motorola. Dealer shall provide
Motorola with financial information and statements as requested by Motorola to
obtain and maintain Dealer's credit approval.
B. CANCELLATION
Dealer may cancel an individual order by giving Motorola notice of such
cancellation, which notice must be received by Motorola at least six (6) days
prior to the scheduled shipping date of such order. Motorola shall not cancel
an individual order when the notice is received by Motorola within five (5)
days of the scheduled shipping date of the order. Dealer shall pay a 15%
restocking charge as liquidated damages and not as a penalty for each such
cancellation.
C. SHIPPING, DELIVERY, PAYMENT, TITLE AND SECURITY
(1) Shipping and handling charges shall be as set forth in the Dealer
Price Book. Such shipping and handling charges are subject to change upon
thirty (30) days written notice to Dealer.
(2) Each delivery shall be separately invoiced without regard to other
deliveries. Payment for each invoice shall be according to the payment terms
set forth in the Dealer Price Book.
(3) Shipping or delivery dates are best estimates only. Motorola reserves
the right to make deliveries in installments and this Agreement shall be
severable as to such installments. Delivery delay or default of any installment
shall not relieve Dealer of its obligation to accept and pay for remaining
deliveries. IN NO EVENT SHALL MOTOROLA BE LIABLE FOR INCREASED COSTS. LOSS OF
PROFITS OR GOODWILL OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO
LATE DELIVERY OR NONDELIVERY OF PRODUCTS.
(4) Title to Products sold and risk of loss shall pass to Dealer at the
shipping point. Dealer grants to Motorola a security interest in and lien upon
all of Dealer's now existing or hereinafter acquired inventory of the Products
and all of Dealer's accounts, chattel paper, instruments, contract rights,
general intangibles, accounts receivable and the proceeds thereof now existing
or hereinafter arising out of Dealer's sale or other disposition of the
Products. Dealer agrees to cooperate in whatever manner necessary to assist
Motorola in perfecting and recording such security interest and lien by
completing the UCC-1 form attached to the Agreement as Attachment G (or any
similar form as may be applicable) and such other security as Motorola may from
time to time request, all such security interests and liens to become part of
the Agreement.
D. WARRANTY/WARRANTY DISCLAIMER
Motorola warrants the Products in accordance with a commercial or limited
warranty, as applicable, and makes no representation or warranty of any other
kind. The applicable warranty is extended by Motorola not to Dealer but to the
original purchaser of the Products from Dealer and is not assignable or
transferable to subsequent purchasers. Dealer will provide the original
purchaser with the applicable Motorola Product warranty and, if applicable, a
software license and software warranty (see paragraph E, below) prior to the
sale of the Products. Dealer shall not issue any warranties, guarantees or
licenses with respect to the Products which purport to obligate Motorola to
any person or entity other than the aforesaid applicable warranties or license
furnished for the Products by Motorola. Such warranties may be changed from
time to time by Motorola on thirty (30) days prior written notice to Dealer.
MOTOROLA DOES NOT EXTEND ANY WARRANTY TO DEALER, AND ALL WARRANTIES EXPRESS OR
IMPLIED ARE SPECIFICALLY EXCLUDED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
If any Motorola Product furnished hereunder is initially defective, i.e.,
defective at the time of delivery to Dealer, Dealer's sole remedy shall be to
return the product to Motorola for replacement or repair at Motorola's sole
discretion. All returns must be returned in the original container and packing
with all accessories and instructions. The foregoing constitutes Dealer's sole
remedy with respect to initially defective Motorola Products; Dealer shall have
no right to reject all or any part of any shipment of Motorola Products
furnished hereunder because of any or all of such Motorola Products which may
be initially defective.
E. SOFTWARE LICENSE AND SOFTWARE WARRANTY/WARRANTY DISCLAIMER
A separate Motorola Software license and Software Warranty may apply to certain
Products and individual items of software. When Dealer is advised by Motorola
that a Motorola Software License and Software Warranty apply to Products
containing Motorola Software that are purchased from Motorola for resale, or
relicensing, as the case may be, Motorola will advise Dealer of the procedures
that must be taken in connection with the sale and/or licensing of such
Products and/or Motorola Software such as a requirement that Dealer and
Dealer's customers sign an applicable Motorola Software License prior to
delivery of the Products and Motorola Software. MOTOROLA DOES NOT EXTEND ANY
SOFTWARE WARRANTY TO DEALER, AND ALL WARRANTIES EXPRESS OR IMPLIED ARE
SPECIFICALLY EXCLUDED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
F. PATENT, COPYRIGHT AND TRADEMARKS
(1) INDEMNIFICATION. Motorola agrees to defend, at its expense, any suits
against Dealer or its customer based upon a claim that any
Motorola-manufactured Products furnished hereunder directly infringe a U.S.
patent or copyright and to pay costs and damages finally awarded in any such
suit, provided that Motorola is notified promptly in writing of the suit and,
at Motorola's request and at its expense, is given control of said suit and all
requested assistance for defense of same. If the use or sale of any such
Product(s) furnished hereunder is enjoined as a result of such suit, Motorola,
at its option and at no expense to Dealer, shall obtain for Dealer and its
customers the right to use or sell such Product(s), or shall substitute an
equivalent Product reasonably acceptable to Dealer and shall extend this
indemnity thereto, or shall accept the return of such Product(s) and reimburse
Dealer the purchase price therefor less a reasonable charge for reasonable wear
and tear. This indemnity does not extend to any suit based upon any
infringement or alleged infringement of any patent or copyright by the
combination of any such Product(s) furnished hereunder with other elements nor
does it extend to any such Product(s) of Dealer's or its customer's design or
formula. The foregoing states the entire liability of Motorola for patent or
copyright infringement. IN NO EVENT SHALL MOTOROLA BE LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING FORM INFRINGEMENT OR ALLEGED INFRINGEMENT OF
PATENTS OR COPYRIGHTS.
(See other side for additional terms)
14
(2) COPYRIGHTS AND MASK WORKS. Laws in the United States and other
countries preserve for Motorola certain exclusive rights in the Motorola
Software, mask works and other works of authorship furnished hereunder,
including, without limitation, the exclusive right to prepare works derived
from same, reproduce same in copies and distribute copies of same. Such
Motorola Software, mask works and other works of authorship may be used in and
redistributed only with the Products associated with same. No other use,
including, without limitation, reproduction, modification or disassembly of
such Motorola Software, mask works or other works of authorship or exercise of
exclusive rights in same, is permitted.
(3) REVERSE ENGINEERING. Dealer acknowledges Motorola's claim that the
Motorola Software and Products furnished hereunder contain valuable trade
secrets of Motorola and therefore agrees that it will not translate, reverse
engineer, de-compile or disassemble or make any other unauthorized use of such
Motorola Software and Products. Since unauthorized use of such Motorola
Software and Products will greatly diminish the value of such trade secrets and
cause irreparable harm to Motorola, Dealer agrees that Motorola, in addition to
any other remedies it may have, shall be entitled to equitable relief to
protect such trade secrets, including, without limitation, temporary and
permanent injunctive relief without the proving of damage by Motorola.
(4) TRADEMARK AND PROPRIETARY MARKS.
(a) The Products shipped under the terms and conditions of this Agreement
will carry Motorola's trademark and proprietary marks or such other logo or
proprietary marks as Motorola may expressly agree to in writing prior to any
use of such other logo or xxxx.
(b) Dealer hereby acknowledges the validity of the trademark "MOTOROLA" and
the Motorola Authorized Two-Way Radio Dealer trademark as well as all other
proprietary marks which are affixed to the Products and agrees that the
aforesaid trademarks and proprietary marks are and shall remain the property of
Motorola.
(c) Dealer shall not do anything to infringe upon, harm, or contest the
validity of the aforesaid trademarks or other proprietary marks of Motorola.
(d) Dealer may use the Motorola Authorized Two-Way Radio Dealer trademark
in connection with the promotion or sale of the Products and state that the
Products are manufactured by Motorola. Except as Motorola may otherwise
specifically provide, such promotion shall be at Dealer's sole cost and expense.
(e) Dealer agrees that it shall not use the trademark "MOTOROLA" or the
Motorola Authorized Two-Way Radio Dealer trademark as part of the name under
which it conducts business.
(f) Permission to display the word "MOTOROLA", or any other proprietary word
or symbol owned by Motorola or its affiliates, is only as stated above and it is
expressly understood that nothing herein shall grant to Dealer any right, title
or interest in the word "MOTOROLA" (either alone or in association with other
words, names or symbols), or in the corporate name of Motorola, or any part
thereof or in any other trademark or trade name adopted by Motorola, or its
affiliates.
(g) In order that Motorola may protect its trademarks, trade names,
corporate slogans, goodwill and product designations, Dealer shall not use any
such marks, names, slogans, or designations in any advertising copy,
promotional material, signs or other written or printed material except in a
form specifically approved in writing by Motorola.
(h) If, as set forth in this subparagraph F.(4), any such xxxx is used in
signs, advertising or in any other manner by Dealer, Dealer will, upon
termination or expiration of this Agreement, immediately discontinue all such
use or display.
(5) LICENSE DISCLAIMER. Except for the right to use the Motorola Software
and Products for the purposes provided herein which arise by operation of law,
and except as expressly provided in the Agreement, nothing contained in the
Agreement shall be deemed to grant to Dealer or its customers either directly
or by implication, estoppel or otherwise, any license or right under any
patents, copyrights, trademarks or trade secrets of Motorola or any third party.
G. TAXES AND INSURANCE
(1) Dealer shall pay all license fees, sales, use, service use, occupation,
retailer's occupation, service occupation, personal property and excise taxes
and any other fees, assessments or taxes which may be assessed or levied by any
national, state or local government and any departments and subdivision
thereof, as a result of the performance of the Agreement or against any of the
Products ordered by the Dealer.
(2) Dealer shall provide and maintain at its own expense the following
insurance against liability arising in any way out of the Agreement and any
other insurance coverages which may deemed necessary by Motorola; (a) General
Public Liability insurance with a combined single limit of $1,000,000; (b)
Worker's Compensation and Employers Liability insurance sufficient and proper
under the laws of the state wherein the responsibilities are to be performed to
protect Motorola against claims under the compensation laws of said state; (c)
Automobile Public Liability insurance covering all vehicles used in connection
with the Agreement with a combined single limit of $1,000,000; (d) fire, theft
and extended coverage with respect to the Products in an amount no less than
the replacement value of such Products. All insurance policies shall be in
companies satisfactory to Motorola, name Motorola as an additional named
insured, and contain a waiver of subrogation clause whereby the insurer waives
all rights of subrogation it may have under such policies as related to
Motorola. Each insurance policy will contain a clause requiring the insurer to
give Motorola at least thirty (30) days prior written notice of any alteration
in the terms of such policy or the cancellation thereof. Dealer will promptly
provide Motorola with written notice thereof and make available to Motorola
all information and documentation relating thereto.
(3) Except for the amount, if any, of federal, state, or local taxes stated
in the Dealer Price Book or otherwise set forth in the Agreement, the prices
set forth in the Agreement are exclusive of any amount for federal, state, or
local excise, sales, use, property, retailers' occupation or similar taxes. If
any such excluded taxes are determined to be applicable to any transaction
related to the Agreement, or if Motorola is required to pay or bear the burden
of such taxes, the prices set forth herein shall be increased by the amount of
such taxes and any such interest or penalty thereon, and Dealer shall pay to
Motorola the full amount of any such increase no later than ten (10) days after
receipt of an invoice for such taxes, or Dealer may provide Motorola an
executed resale exemption certificate as required by state tax authorities to
establish Dealer's tax-exempt status as a reseller under the Agreement.
H. EXCUSABLE DELAYS
Motorola shall not be liable for any delay or failure to perform due to any
cause beyond its reasonable control. Causes include but are not limited to
strikes, acts of God, acts of the Dealer, interruptions of transportation or
inability to obtain necessary labor, materials or facilities, or default of any
supplier or because Motorola's volume of orders at any time renders deliveries
impractical in the ordinary course of business. The delivery schedule shall be
considered extended by a period of time equal to the time lost because of an
excusable delay. In the event Motorola is unable to wholly or partially perform
because of any cause beyond its reasonable control, Motorola may terminate any
order without liability to Dealer or its customers.
I. FCC AND OTHER GOVERNMENT MATTERS
The end user of a Product is solely responsible for obtaining any licenses or
other authorizations required by the Federal Communications Commission ("FCC")
or any other federal, state or local governmental agency. The end user is
solely responsible for complying with applicable FCC rules and regulations and
the applicable rules and regulations of any other federal, state or local
governmental agency. Neither Motorola nor any of its employees is an agent of
Dealer or the end user in FCC or other governmental matters. Motorola, however,
may assist in preparation of an FCC license application at no charge to the end
user. Motorola shall establish Dealer's obligations in connection with any such
FCC or other governmental licensing assistance required for end users.
J. COMPLIANCE WITH LAW
Dealer shall at all times conduct its efforts under the Agreement in strict
accordance with all applicable federal, state and local laws, rules and
regulations and with the highest commercial standards. Dealer agrees to
promptly comply with any notices received from Motorola regarding compliance
with or remedial efforts which Motorola, in its sole discretion, deems are
necessary that relate to any such law, rule or regulation including, but not
limited to, such laws, rules and regulations regarding warranty, consumer
protection and product safety for Motorola products and services.
15
Paging Product Sales to the United States Government Amendment
to the
Motorola Authorized Two-Way Radio Dealer Agreement ("Agreement")
between
Motorola, Inc. ("Motorola")
and
CHAMPION COMMUNICATIONS SERVICES INC.
--------------------------------------------
('Dealer')
Effective the Motorola Signature Date shown below, Motorola and Dealer
agree to amend the Agreement as follows:
A. The second full paragraph of Section 6 of the Agreement which begins,
"Sales to the U.S. Government" is replaced in its entirety with the following:
"Sales to the U.S. Government. For purposes of this paragraph, the
Nucleus paging products in Section 2.0 of the Dealer Price Book and the
Motorola paging products listed in sections 2.7, 4.0, and 4.1 of the
Dealer Price Book constitute the "Paging Products." In the event the
dealer elects to sell Paging Products to the United States Government or
any of its departments, agencies or subdivisions ("U.S. Government"),
Dealer does so solely at its own option and risk and agrees not to
obligate Motorola as a subcontractor or otherwise to the U.S.
Government. Dealer remains solely and exclusively responsible for
compliance with all statutes, regulations, and clauses governing sales
to the U.S. Government. Motorola makes no representations,
certifications, or warranties whatsoever with respect to the ability of
its goods, services, or prices to satisfy any such statutes,
regulations, or clauses.
Except for the Paging Products, any direct or indirect distribution,
transshipment and/or sale of Products by Dealer to the United States
Government or any of its departments, agencies or subdivisions is
prohibited."
Except as amended by the foregoing, the Agreement remains in effect in
accordance with all its existing terms, conditions and amounts.
MOTOROLA, INC. DEALER
By: X. X. XXXXXX XX. By:
------------------------- ------------------------
(Authorized Signature) (Authorized Signature)
X. X. Xxxxxx Xx.
------------------------- ------------------------
Print Name Print Name
Senior Vice President
------------------------- ------------------------
Print Title Print Title
1-10-96
------------------------- ------------------------
Signature Date Signature Date
16
AMENDMENT
to
MOTOROLA AUTHORIZED TWO-WAY RADIO DEALER AGREEMENT ("AGREEMENT")
between
MOTOROLA, INC. ("Motorola")
and
Champion Communication Services Inc. ("Dealer")
Effective the Motorola Signature Date shown below, Motorola and Dealer
agree to amend the Agreements as follows:
A. Section 7 of the Agreement is entitled "Sales Performance". The
third paragraph of subparagraph (b) of Section 7 which begins "Due to such
things as the ........" and ends "........catalog sales or similar activities,"
is replaced in its entirety with the following:
"Due to such things as the importance of customer contact in connection
with the sales of the Products, Dealer shall not promote, advertise, or
sell the Products outside of Dealer's Area through mail order, phone
bank solicitation, catalogue sales, or similar activities. "Similar
activities" include but are not limited to the promotion, advertisement,
or sale of the Products through use of any type of on-line computer
service (e.g., world Wide Web, Internet, etc.).
Except as amended by the foregoing, the Agreement remains in effect in
accordance with all its existing terms, conditions and amounts.
MOTOROLA, INC. DEALER
By: By: Xxxxxxx X. Xxxxxx Xx.
---------------------------- ----------------------------
(Authorized Signature) (Authorized Signature)
Xxxxxxx X. Xxxxxx Xx.
-------------------------------- ----------------------------
Print Name Print Name
Senior V.P.
-------------------------------- ----------------------------
Print Title Print Title
2-13-96
-------------------------------- ----------------------------
Signature Date Signature Date
17
Per Unit Administrative Processing Charge Amendment
to
Motorola Authorized Two-Way Radio Dealer Agreement ("Agreement")
between
Motorola, Inc. ("Motorola")
and
Champion Communication Services ("Dealer")
-------------------------------
The Woodlands, TX ("City, State")
-------------------------------
Effective Motorola execution date shown below, Dealer and Motorola agree
that the following new sections are added to the end of the Agreement:
" AA. Per Unit Administrative Processing Charge
-----------------------------------------
Among other things, the Agreement provides that Dealer will limit its
distribution of the Products purchased under the Agreement to direct sale by
Dealer to customers at retail for end use as limited by the terms and
conditions of the Agreement, and that Dealer's defined role in Motorola's
distribution system is necessary in order to encourage Motorola, Dealer and
Motorola's other dealers, distributors and resellers to make the distribution
efforts necessary to expand Motorola's distribution of Products and to provide
the highest levels of customer satisfaction.
Dealer and Motorola agree that Motorola shall incur serious damages if
Dealer's sale of any Products unit fails to comply with the aforementioned
provisions of the Agreement and, further, that the amount of those damages are
uncertain and difficult of estimation because such damages include by way of
illustration but not limitation, Motorola undertaking a variety of record
keeping, administrative and operational activities and the costs and expenses
related thereto for each such breach of the Agreement by Dealer.
In addition to Motorola's other rights and remedies under the
Agreement, at law or in equity, to compensate Motorola for such damages,
Motorola and Dealer agree that for each such Products unit sale, as stipulated
damages and not as a penalty, on a per Products unit involved in the
transaction basis, the stipulated sum shall be a Per Unit Administrative
Processing Charge which shall consist of the difference between Motorola's
Suggested List Price and the Dealer purchase price listed in the then current
Dealer Price Book for each Products unit involved in each such non-compliant
sale ("Per Unit Administrative Processing Charge"). To assist in the
identification of each Dealer Products unit subject to the Per Unit
Administrative Processing Charge, Dealer shall give to Motorola full
cooperation and access to all of Dealer's books, contracts and records related
in any way to Dealer's sale of Products units, and to furnish to Motorola all
other information with respect to its affairs, as deemed necessary by
Motorola, to identify each such Products unit.
Motorola shall invoice Dealer for each Per Unit Administrative
Processing Charge. Payment for each such invoice shall be due upon Dealer's
receipt of invoice. In the event Dealer fails to pay an outstanding Per Unit
Administrative Processing Charge invoice within thirty (30) days of the date
such payment is due, in addition to Motorola's other rights and remedies under
the Agreement, at law or in equity, Motorola may withhold any further
processing of any Dealer order for Products until such payment is made.
BB. Marketing Reporting Delinquency Order Hold
-----------------------------------------
In the event Dealer fails to provide Motorola any marketing report
called for by this Agreement and Dealer fails to cure such failure within
fifteen (15) days of notice of such failure from Motorola then, in addition to
Motorola's other rights and remedies under the Agreement, at law or in equity,
Motorola may withhold any further processing of any Dealer order for Products
until each such report is provided to Motorola as required by the Agreement."
Except as specifically amended above, the Agreement remains in full force and
effect in accordance with its terms and conditions.
MOTOROLA, INC.: RESELLER:
By: /s/ XXX XXXXXXXX By: /s/ XXX XXXXXX
-------------------------------- ----------------------------
Print Name: Xxx Xxxxxxxx Print Name: Xxx Xxxxxx
------------------------ ---------------------
Title: VP, Division General Manager, Print Tilte: Sr. V.P.
RPAG - US & Canada --------------------
Motorola Execution Date: Sep 30 1996 Reseller Execution Date: 9-23-96
----------- -------
