Exhibit 10.10
SALES AGENCY AGREEMENT BETWEEN
SPRINT COMMUNICATIONS COMPANY L.P. AND
AIRGATE PCS, INC.
This Sales Agency Agreement (as amended from time to time, "Agreement") made as
of May 1, 2001 ("Effective Date"), is between Sprint Communications Company
L.P., a Delaware limited partnership ("Sprint") and AirGate PCS, Inc., ("Sales
Agent").
RECITALS
A. Sales Agent desires to act as Sprint's agent for the marketing and sale of
Sprint's residential wireline voice long distance telecommunications
services ("Sprint Services") to Customers through Sales Agent's retail
stores in the United States.
B. Sprint desires to appoint Sales Agent as its limited agent to promote,
distribute and sell Sprint Services as described in this Agreement and any
Exhibits, Attachments or Addenda hereto.
TERMS
In consideration of the covenants, terms and conditions of this Agreement the
parties agree as follows:
1. Defined Terms
1.1. "A-Status Sale" or "A-Status" means a sale of Sprint Services to a Customer
who passes all Sprint's screening processes and whose Sprint Service is
activated by Sprint.
1.2. "Customer" means a person who purchases Sprint Services as a result of a
sale by Sales Agent under this Agreement.
1.3. "Commission" means the commission payable to Sales Agent by Sprint pursuant
to this Agreement.
1.4. "Market" means a market defined by Sprint for its internal marketing
purposes, which market generally corresponds to a metropolitan area rather
than to an individual city or other governing unit.
1.5. "Net Collectible Monthly Revenue" means the total amount billed to the
customer for monthly recurring charges and monthly usage charges for Sprint
Services. Net Collectible Monthly Revenue excludes taxes and surcharges,
special access charges, directory assistance charges, charges for non-voice
telecommunications services, charges which are subsequently credited,
volume and other promotional discounts, fraudulently charged amounts, bad
debt and uncollectibles, write-offs, and amounts Sprint is required by
governmental or quasi-governmental authorities to collect on behalf of or
pay to others in support of statutory or regulatory programs. Examples of
such programs include, but are not limited to, the Universal Service Fund,
the Primary Interexchange Carrier Charge, and compensation to payphone
service providers for use of their payphones to access Sprint's service.
1.6. "Rate Schedules" means Sprint's schedules of rates, terms and conditions
for Sprint Services.
1.7. "Retail Sales Force" means Sales Agent's employees that are engaged in
direct sales activities at Sales Agent's retail stores.
1.8. "Sprint Marks" are the trade names, logo, service marks, brands and other
trademarks of Sprint.
1.9. "Sprint Services" means Sprint's residential wireline voice long distance
telecommunications services. "Sprint Services" does not include other
services offered by Sprint, such as data services.
1.10."Tariff' means those tariffs filed by either Party with state regulatory
commissions for intrastate Service.
1.11."Terms and Conditions of Service" means the terms and conditions that
govern either Party's interstate Service.
2. Appointment
2.1. Agency. Subject to this Agreement, Sprint appoints Sales Agent as its agent
for the limited purposes of selling Sprint Services to Customers through
Sales Agent's Retail Sales Force in the United States. Sales Agent accepts
the appointment.
2.2. Restriction on Sales Agent Authority. Sales Agent is a limited agent of
Sprint only for the purposes expressly set out in this Agreement. Sales
Agent is not authorized to sign any offer, proposal or agreement on behalf
of Sprint. Sales Agent is authorized to use only its Retail Sales Force for
the sale of Sprint Services. Sales made by Sales Agent of Sprint Services
may be made only via a one-on-one consultative basis with the Customer.
Sales Agent is must use commercially reasonable efforts to perform its
sales obligations under this Agreement. Sales Agent may not set up a
multi-level marketing, pyramid promotional scheme or any similar structure
to sell Sprint Services.
2.3. Compliance. Sales Agent must comply with all procedures, policies and
operating guidelines on the marketing and sale of Sprint Services that are
established by Sprint, including procedures required by law or contract or
policies adopted by Sprint (e.g., advising Customers of the terms and
conditions of the Sprint Services or pre-approval of marketing packets).
Sprint will notify Sales Agent in writing a commercially reasonable time,
but not less than 30 days, in advance of the effective date of any new or
revised procedures and/or operating guidelines, unless a shorter time
period is required by law or specified in this Agreement.
2.4. No Contractual Relationship with Retail Sales Force.
2.4.1. General. Notwithstanding Sales Agent's right to use its Retail Sales
Force to sell Sprint Services, Sprint will deal only with Sales Agent and
will not deal directly with or have any obligations to any member of Sales
Agent's Retail Sales Force. Without limiting the generality of the
foregoing, Sales Agent:
(1) must place all orders for Sprint Services;
(2) coordinate all advertisements and promotional activity under Sections
4.5 and 4.6; and
(3) is liable for payment of all amounts due Sprint under this Agreement.
2.4.2. Independent Contractor. Sales Agent is an independent contractor with no
authority to act for or on behalf of Sprint, except as expressly granted
herein. Sales Agent may not use agents or third party vendors or
representatives to solicit Customers for Sprint without Sprint's prior
consent. Sales Agent has no authority to bind Sprint in any manner
whatsoever except as authorized by Sprint. Sprint has no obligation to
employees or agents utilized by Sales Agent to attract Customers to Sprint.
Such individuals are at all times employees or agents of Sales Agent. Sales
Agent is solely responsible for all expenses and obligations incurred by it
as a result of its efforts to solicit Customers for Sprint, unless
otherwise agreed to in advance by the Parties. Sales Agent agrees to comply
with laws, regulations and orders relating to equal employment opportunity,
workers' compensation, unemployment compensation and FICA.
2.4.3. Methods of Operations. Sales Agent, its subcontractors, employees and
agents, are independent contractors for all purposes and at all times.
Sales Agent is responsible for control over the methods and details of
performing the services described in this Agreement, subject to Sprint's
inspection. Sales Agent is also solely responsible for providing all tools,
material, training, hiring, supervision, hours of work, employment policies
and procedures, work rules, compensation, discipline, and termination of
employment for Sales Agent's employees.
2.4.4. Wages and Payroll Taxes. Sales Agent is solely responsible for payment of
wages, salaries, fringe benefits and other compensation of, or claimed by,
its employees including, without limitation, contributions to any employee
benefit, medical or savings plan and is responsible for all payroll taxes
including, without limitation, the withholding and payment of all federal,
state and local income taxes, FICA, unemployment taxes and all other
payroll taxes.
2.4.5. Sprint's Right to Reject. Sprint has the right, in its sole discretion,
to reject any individual as a member of Sales Agent's Retail Sales Force.
If Sprint rejects an individual as a member of the Sales Agent's Retail
Sales Force, Sales Agent must insure that that individual does not sell
Sprint Services. Sprint has the further right to notify Sales Agent in
writing and require that Sales Agent insure that that individual is no
longer selling Sprint Services from and after the date of notice. Sprint
does not have to pay Commissions to Sales Agent for sales of Sprint
Services made by any (i) individual whom Sprint has rejected as a member of
the Retail Sales Force, or (ii) individual whom Sprint has notified Sales
agent can no longer sell Sprint Services.
2.4.6. Sales Agent Representations, Warranties and Covenants with Respect to
Retail Sales Force. Sales Agent represents, warrants and covenants to
Sprint as follows:
(1) Sales Agent is responsible for the acts or omissions of each member of
the Retail Sales Force;
(2) no one other than the members of the Retail Sales Force may sell
Sprint Services;
(3) each member of the Retail Sales Force will comply with the applicable
provisions of this Agreement, including the confidentiality provisions
(Section 7) and the sales and marketing provisions (Section 4); and
(4) each member of the Retail Sales Force has a confidentiality obligation
to Sales Agent at least as restrictive as Sales Agent's
confidentiality obligations to Sprint under this Agreement.
2.5. No Sale to Resellers. Sales Agent will require that the Retail Sales Force
sell Sprint Services to Customers only. Sales Agent acknowledges that one
of Sprint' primary reasons for selecting Sales Agent as a sales agent for
the Sprint Services is to assure a broad distribution of Sprint Services to
Customers. Sales Agent agrees that it will not knowingly, directly or
indirectly, sell, or permit the Retail Sales Force to sell, Sprint Services
to a reseller of telecommunications services or to anyone that is
purchasing the Sprint Services for the purpose of reselling them. Sales
Agent will take and require its Retail Sales Force to take reasonable
efforts to determine if a volume purchaser is a reseller of
telecommunications services.
3. Term
The term of this Agreement is 1 year from the Effective Date, unless sooner
terminated as permitted in this Agreement. This Agreement automatically
renews for consecutive 1 year periods on each anniversary date of the
Effective Date, unless either party gives the other party written notice of
non-renewal at least 30 days before the anniversary date.
4. Sale of Sprint Services
4.1. Commissions. Except as otherwise provided in Exhibit A attached to this
Agreement, Sprint will pay Sales Agent a Commission as described in Exhibit
A (Commissions) on or before the last day of the month following the month
in which a sale of Sprint Services by Sales Agent becomes A-Status. Any
Commission paid is subject to charge back as provided in Exhibit A. Sprint
will pay Sales Agent Commissions only for sales of Sprint Services made
while this Agreement is in effect. Sales Agent must not rebate, split or
otherwise share any Commissions Sales Agent is paid with respect to the
sale of Sprint Services with any Customer obtaining a Sprint Service
without Sprint's prior written consent.
4.2. Sales Activity.
4.2.1. Authorization to Sell Sprint Services. Sprint authorizes Sales Agent to
sell Sprint Services in the retail stores described in Exhibit B and any
other mutually agreed-upon Sales Agent retail stores. Sales Agent may not
modify, amend, waive, cancel or otherwise change any Sprint Services
offering. Sprint reserves the right, in its sole discretion, to: (a) add or
delete individual service offerings or Sprint Services from those that the
Sales Agent is authorized to sell; or (b) change the Rate Schedules, Terms
and Conditions of Service or Tariffs for any Sprint Services or individual
service offerings that Sales Agent is authorized to sell. Any changes to
the Sprint Services that Sales Agent may sell are effective as soon as
Sprint gives notice of the change to Sales Agent, except that non- material
changes to Sprint's Rate Schedules, Terms and Conditions of Service or
Tariffs are effective immediately when made. Sprint is not obligated to
make all of its service offerings available for sale by Sales Agent;
rather, Sprint can make as limited a set of service offerings as Sprint may
choose, in its sole discretion, available to Sales Agent.
4.2.2. Marketing and Sale of Sprint Services.
(1) Sales Agent must provide a one-on-one, consultative sales experience
for the Customer to ensure the Customer's understanding of the nature
of the Sprint Service purchased and the terms of the Sprint Service
selected by the Customer.
(2) Sales Agent must complete and deliver to Sprint all orders for Sprint
Services obtained by the Sales Agent. Sprint will conduct its standard
credit check on the proposed Customer.
(a) If the Customer qualifies for the Sprint Service for which the
credit check was run, is otherwise a Customer to whom Sprint is
willing to provide the Sprint Service, and the order is complete,
legible and accurate, Sprint will provide Sprint Service to the
Customer.
(b) If the Customer does not qualify for the Sprint Service for which
the credit check was run, Sales Agent or Sprint will notify the
Customer directly and Sales Agent or Sprint may offer the
Customer an alternative Sprint Service for which the Customer
qualifies. If Sprint provides the Customer an alternative Sprint
Service, Sales Agent will earn Commission for that Sprint Service
when the sale of that Sprint Service becomes A-Status if the
requirements of Section 4.1 and Exhibit A are met.
4.2.3. Order Acceptance and Cancellation. Orders for Sprint Services submitted
by Sales Agent are not binding until accepted by Sprint. Sprint may, in its
sole discretion, reject any order solicited or taken by Sales Agent if the
order fails to pass any of Sprint's screening processes.
4.2.4. Customers. All Customers purchasing Sprint Services through the efforts
of Sales Agent are Customers of Sprint. Sales Agent must comply with all
Sprint procedures regarding activation, care and dealing with Sprint's
Customers. Sales Agent will not impose any activation or other fees,
standards, sales conditions, or contracts not written by Sprint on any
Customer. Sales Agent is not authorized to xxxx or collect any moneys from
Customers on behalf of Sprint.
4.3. Training. Sprint will provide all training (trainers and training
materials, initial and continuing) for the Retail Sales Force trainers
regarding the features and functionality of Sprint Services. Sales Agent
must provide the place for this training and make the trainers of the
Retail Sales Force available. Sales Agent and Sprint will use commercially
reasonable efforts to coordinate and plan all training sessions. Sales
Agent must have each member of the Retail Sales Force receive a sufficient
amount of training from Sprint in order to provide a professional,
one-on-one consultative sales experience to Customers. If Sprint
establishes a training program designed to provide a Sprint certification
of Sales Agent as a trainer, Sales Agent will obtain the appropriate
certification, as determined by Sprint, within 90 days of Sprint notifying
Sales Agent of the establishment of the certification program.
4.4. Liability for Sprint Services Procured by Fraud or Misrepresentation. Sales
Agent is liable to Sprint for all uncollected amounts billed to any
Customer purchasing a Sprint Service through Sales Agent's efforts for
Sprint Services that are procured by or through fraud or fraudulent means
of Sales Agent or its Retail Sales Force or if Sales Agent or any member of
its Retail Sales Forces fails to follow Sprint procedures, policies and
operating guidelines on the marketing and sale of Sprint Services in any
material respect in accordance with Section 2.3.
4.5. Advertising and Marketing. Sales Agent will actively promote and market the
Sprint Services in accordance with the standards set from time to time by
Sprint. Sprint will develop and design all advertising, marketing and
promotional plans and sales collateral (collectively, "Marketing
Materials") to be used in Sales Agent's retail stores and will pay for such
development and design costs. Sales Agent may not use any Marketing
Materials not provided by Sprint, and may not modify any Sprint-provided
Marketing Materials, without Sprint's prior written consent. Sales Agent
will pay for the inventory of Marketing Materials that are used in its
retail stores.
4.6. Internet Advertising; No Internet Sales. Sales Agent may advertise the
Sprint Services or tell Customers how to reach Sales Agent on Sales Agent's
Internet website. Any Internet advertising must receive Sprint's prior
written approval. Sales Agent may not use unsolicited commercial electronic
or "spam" messages to advertise or sell the Sprint Services. Sales Agent
may not sell Sprint Services via the Internet.
5. Limitation of Liability
NEITHER PARTY IS LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, INCIDENTAL,
EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR LOSS OF PROFITS, ARISING FROM
THE RELATIONSHIP OF THE PARTIES OR THE CONDUCT OF BUSINESS UNDER, OR BREACH OF
THIS AGREEMENT, EXCEPT WHERE SUCH DAMAGES OR LOSS OF PROFITS ARE CLAIMED BY OR
AWARDED TO A THIRD PARTY IN A CLAIM OR ACTION AGAINST WHICH ONE PARTY TO THIS
AGREEMENT HAS A SPECIFIC OBLIGATION TO INDEMNIFY THE OTHER.
6. Termination of Agreement
6.1. Events of Termination
6.1.1. Either party may terminate this Agreement for its convenience upon 30
days written notice to the other party.
6.1.2. Sprint may terminate this Agreement immediately if:
(1) Sales Agent fails to pay any amount due to Sprint under this Agreement
when due;
(2) Sales Agent resells (directly or indirectly) the Sprint Service;
(3) Sales Agent actively seeks or has a high percentage of terminations
and re-activations of Customers purchasing Sprint Services through
Sales Agent's efforts;
(4) Sales Agent institutes or becomes the subject of proceedings under any
bankruptcy act, insolvency law or any law for the relief of debtors;
(5) a receiver is appointed for, or applied for by, Sales Agent;
(6) Sales Agent makes any assignment for the benefit of its creditors; or
(7) Sales Agent materially breaches this Agreement (other than as provided
in (1) through (6) of this subparagraph 6.1.2.), Sprint gives notice
of breach to Sales Agent and Sales Agent fails to cure the breach
within 30 days of the date of the notice.
6.1.3. Sales Agent may terminate this Agreement immediately (except for
termination under Section 6.1.3(2)) if:
(1) Sprint fails to pay when due any amount due to Sales Agent under this
Agreement;
(2) Sprint materially breaches this Agreement, Sales Agent gives notice of
breach to Sprint, and Sprint fails to cure the breach within 30 days
of the date of the notice;
(3) Sprint institutes or becomes the subject of proceedings under any
bankruptcy act, insolvency law or any law for the relief of debtors;
(4) Sprint makes an application for the appointment of a receiver for
Sprint; or
(5) Sprint makes an assignment for the benefit of its creditors.
6.1.4. Sprint may immediately terminate Sales Agent's right to sell Sprint
Services through a particular member of the Retail Sales Force without in
any way affecting the rights and obligations of Sales Agent and Sprint
under this Agreement.
6.1.5. Sprint may immediately terminate Sales Agent's right to sell Sprint
Services in any Market without terminating this Agreement and without in
any way affecting Sales Agent's rights and obligations to sell Sprint
Services in any other Market. If Sales Agent sells or attempts to sell
Sprint Services in any Market which Sprint has not approved, Sales Agent
will immediately terminate all sales activity in that Market upon notice
from Sprint. If Sales Agent fails to immediately terminate all such sales
activity in that Market, Sprint may immediately terminate this Agreement.
6.2. Method of Termination. A party having the right to terminate this Agreement
(in whole or in part) may exercise the right by giving the other party
written notice stating the Agreement (in whole or in part) is terminated as
of the later of the date of the notice or the permitted termination date.
6.3. Duties upon Expiration or Termination. Upon the expiration or termination
of this Agreement by either party:
6.3.1. Sales Agent must use all commercially reasonable efforts to immediately
(a) cease all of its efforts to promote the sale of the Sprint Services and
(b) stop using Sprint's Marks in connection with the sale of Sprint
Services under this Agreement;
6.3.2. Sales Agent must notify each member of the Retail Sales Force that this
Agreement is terminated and they are to immediately (a) cease all efforts
to promote the sale of the Sprint Services and (b) stop using Sprint's
Marks;
6.3.3. both parties will immediately refrain from making any statements or
taking any actions that might cause third parties to infer that any sales
agency relationship continues to exist between the parties pursuant to this
Agreement, and where necessary or advisable, immediately inform third
parties that the parties no longer have a sales agency relationship
pursuant to this Agreement;
6.3.4. Sprint is not obligated to accept and process any further orders received
from Sales Agent after the date of termination or expiration;
6.3.5. if Sprint terminates Sales Agent's right to sell Sprint Services through
a particular member of the Retail Sales Force, Sales Agent must use all
commercially reasonable efforts to ensure that member of the Retail Sales
Force immediately ceases all efforts to promote the sale of the Sprint
Services, including notifying that member of the Retail Sales Force that he
or she is to immediately (a) cease all efforts to promote the sale of the
Sprint Services, and (b) stop using Sprint's Marks.
6.4. Effect of Termination. Termination of this Agreement is without prejudice
to any other rights or remedies of the parties and is without liability for
any loss or damage occasioned by the termination. Termination of this
Agreement for any cause does not release either party from any liability
which, at the time of termination, has accrued to the other party, or which
may accrue in respect of any act or omission before termination or from any
obligation which is expressly stated to survive the termination. Sales
Agent is not entitled to the payment of any Commissions that was not
already earned on the termination date (other than Monthly Residual
Commissions payable after the Termination of this Agreement with respect to
sales occurring prior to Termination of this Agreement).
7. Confidentiality; Trade Secrets
7.1. Neither Party, nor its directors, officers, employees or agents, may
disclose the terms of this Agreement to any unaffiliated third party
without the written consent of the other Party, except as otherwise
required by law.
7.2. All information, including without limitation all oral, visual and written
information, including all information disclosed prior to the date of this
Agreement pursuant to the negotiations of the parties, disclosed to the
other party and marked "Confidential" or "Proprietary" is deemed to be
confidential, restricted and proprietary to the disclosing party (the
"Confidential Information"). Written materials must be conspicuously
labeled "Confidential" or "Proprietary" at the time disclosed or as soon as
practicable thereafter, but not more than 15 days after the disclosure.
Oral and visual information must be confirmed in writing as "Confidential"
or "Proprietary" within 15 days of the date disclosed.
7.3. Each party will maintain the confidentiality of the other party's
Confidential Information. The party receiving Confidential Information will
use it only to further the relationship between the parties. Confidential
Information may not be disclosed to any third party without the written
consent of the disclosing party. Each party agrees that the other may
disclose Confidential Information it receives to its employees, directors,
officers, accountants, lawyers or other agents who have a need to know,
subject to the terms of this Agreement. The party receiving Confidential
Information must provide at least the same reasonable care to avoid
disclosure in breach of this Agreement or unauthorized use of the
disclosing party's Confidential Information as it provides to protect its
own similar Confidential Information. All Confidential Information remains
the property of the disclosing party, and no rights, licenses, trademarks,
inventions, copyrights, patents, or other intellectual property rights are
implied or granted under this Agreement, except to use the Confidential
Information as provided in this Agreement. The receiving party will not
reproduce Confidential Information except to accomplish the purpose of this
Agreement.
7.4. The receiving party does not have an obligation to protect Confidential
Information that is: (a) in the public domain through no fault of the
receiving party; (b) within the legitimate possession of the receiving
party, with no confidentiality obligations to a third party; (c) lawfully
received from a third party having rights in the information without
restriction, and without notice of any restriction against its further
disclosure; (d) independently developed by the receiving party without
breaching this Agreement or by parties who have not had, either directly or
indirectly, access to or knowledge of the Confidential Information; or (e)
disclosed with the prior written consent of the disclosing party. If in the
opinion of counsel for the receiving party, Confidential Information is
required to be produced by law, court order, or governmental authority, the
receiving party must immediately notify the disclosing party of that
obligation. The disclosing party may move the ordering court or authority
for a protective order or other appropriate relief.
7.5. All information (including but not limited to name, address, telephone
number, usage and billing information, income and feature preference) of
individuals solicited by Sales Agent to become Sprint Customers and/or sold
Sprint Services by Sales Agent is Sprint Confidential Information under
this Section 7 and is trade secret information belonging to Sprint. Sales
Agent has no rights to information that Sprint has regarding a Customer who
has purchased Sprint Services through Sales Agent's efforts. Sales Agent
will not sell or otherwise disclose that a Customer is a Sprint Customer,
or any other trade secrets of Sprint to any third party at any time.
8. Indemnification.
8.1. Indemnification by Sprint. Sprint agrees to indemnify, defend and hold
harmless Sales Agent, its directors, managers, officers and employees from
and against any and all claims, demands, causes of action, losses, actions,
damages, liability and expense, including costs and reasonable attorneys'
fees, against Sales Agent, its directors, managers, officers and employees
arising from or relating to Sprint's provision of the Sprint Services, or
by Sprint, or its directors', officers', employees', contractors',
subcontractors', agents' or representatives' breach of any representation,
warranty or covenant contained in this Agreement, except where and to the
extent the claim, demand, cause of action, loss, action, damage, liability
and expense results from the negligence or willful misconduct of Sales
Agent, its directors, managers, officers, employees, agents or
representatives. Sprint's indemnification obligations under this Section do
not apply to any third party vendors that provide services directly to
Sales Agent under a separate agreement.
8.2. Indemnification of Sales Agent. Sales Agent agrees to indemnify, defend and
hold harmless Sprint, its directors, officers and employees from and
against any and all claims, demands, causes of action, losses, actions,
damages, liability and expense, including costs and reasonable attorneys'
fees, against Sprint, its directors, officers and employees arising from or
relating to Sales Agent's sale of Sprint Services, or its directors',
managers' officers', employees', contractors', subcontractors', agents' or
representatives' violation of any law, regulation or ordinance applicable
to Sales Agent, or by Sales Agent's, or its directors', managers'
officers', employees', contractors', subcontractors', agents' or
representatives' breach of any representation, warranty or covenant
contained in this Agreement, except where and to the extent the claim,
demand, cause of action, loss, action, damage, liability and expense
results from the negligence or willful misconduct of Sprint, its directors,
officers, employees, contractors, subcontractors, agents or
representatives.
8.3. Procedure.
8.3.1. Notice. Any party being indemnified ("Indemnitee") will give the party
making the indemnification ("Indemnitor") written notice as soon as
practicable but not later than 5 business days after the party becomes
aware of the facts, conditions or events that give rise to the claim for
indemnification if:
(1) any claim or demand is made or liability is asserted against
Indemnitee; or
(2) any suit, action, or administrative or legal proceeding is instituted
or commenced in which Indemnitee is involved or is named as a
defendant either individually or with others.
Failure to give notice as described in this Section does not modify the
indemnification obligations of this provision, except if Indemnitor is
harmed by failure to provide timely notice to Indemnitor, then Indemnitor
does not have to indemnify Indemnitee for the harm caused by the failure to
give the timely notice.
8.3.2. Defense by Indemnitor. If within 30 days after giving notice Indemnitee
receives written notice from Indemnitor stating that Indemnitor disputes or
intends to defend against the claim, demand, liability, suit, action or
proceeding, then Indemnitor will have the right to select counsel of its
choice and to dispute or defend against the claim, demand, liability, suit,
action or proceeding, at its expense.
Indemnitee will fully cooperate with Indemnitor in the dispute or defense
so long as Indemnitor is conducting the dispute or defense diligently and
in good faith. Indemnitor is not permitted to settle the dispute or claim
without the prior written approval of Indemnitee, which approval will not
be unreasonably withheld. Even though Indemnitor selects counsel of its
choice, Indemnitee has the right to retain additional representation by
counsel of its choice to participate in the defense at Indemnitee's sole
cost and expense.
8.3.3. Defense by Indemnitee. If no notice of intent to dispute or defend is
received by Indemnitee within the 30-day period, or if a diligent and good
faith defense is not being or ceases to be conducted, Indemnitee has the
right to dispute and defend against the claim, demand or other liability at
the sole cost and expense of Indemnitor and to settle the claim, demand or
other liability, and in either event to be indemnified as provided in this
Section. Indemnitee is not permitted to settle the dispute or claim without
the prior written approval of Indemnitor, which approval will not be
unreasonably withheld.
8.3.4. Costs. Indemnitor's indemnity obligation includes reasonable attorneys'
fees, investigation costs, and all other reasonable costs and expenses
incurred by Indemnitee from the first notice that any claim or demand has
been made or may be made, and is not limited in any way by any limitation
on the amount or type of damages, compensation, or benefits payable under
applicable workers' compensation acts, disability benefit acts, or other
employee benefit acts.
9. Disputes Concerning Commission Payments/Books and Records/Audit.
9.1. Disputes Concerning Commission Payments. If any dispute arises concerning
any Commission payment due hereunder, the disputing party must give the
other party written notice of the nature and amount of the dispute within
120 days of receipt of payment and adequate supporting documentation to
verify such Commission. If a party does not receive such written notice
within that 120 days period, all Commission payments made will be final and
the other party may not thereafter dispute the nature or amount of the
Commission payment. If, however, the complaining party did not have
knowledge of the Commission due it because of fraud, failure to disclose,
breach of this Agreement or any other act or omission of the other party,
this provision shall not apply and the complaining party has two years from
the date of discovery of the relevant facts in which to make a claim. The
limitations provided in this Section 9.1 shall not apply to Commission
errors, issues and disputes arising in connection with, or discovered in,
an audit under Section 9.2, even though such audit is conducted more than
120 days after receipt of payment and adequate supporting documentation.
9.2. Audit. Each party will maintain complete and accurate accounting records
during the term of this Agreement and for 12 months following conclusion or
expiration of all post-agreement payment obligations of the parties in a
consistent form to substantiate the direct monetary payments and reporting
obligations of one party to any other party under this Agreement. Each
party may, upon reasonable advanced written notice, conduct during the
other party's regular business hours, and in accordance with applicable law
and reasonable security requirements, audits of such direct monetary
payment and reporting obligation accounts and records, in accordance with
the following guidelines and restriction: (a) the audit may be conducted by
members of the internal audit department who are employees of the auditing
party or by an independent auditor, provided that the auditor has signed a
confidentiality agreement acceptable to the audited party, (b) the audited
party may require audit on the premises of the audited party, (c) the
audited party will have the right to have an employee or representative
present at all times during the audit, (d) the auditing party will not have
direct unrestricted access to the audited party's computer database without
the consent of the audited party, and will be entitled to review only those
specific records of the audited party directly related to the monetary
obligations of the audited part hereunder or the applicable Addendum,
specifically limited to customer activations, deactivations, customer
billing records, and any other records directly related to the monetary
obligations of such party hereunder; and (e) the auditing party's audit of
activation, deactivation and Customer billing records will be limited to a
reasonable random sampling audit of these records.
Subject to the restrictions set forth above, the audited party shall
cooperate fully with the auditing party. All reasonable fees and costs
incurred (including a reasonable charge for the services of any employee of
the audited party directly involved in the audit) by either party in
connection with such audits shall be paid by the auditing party. The
audited party will have the right to have the results of any such audit
reviewed by the audited party's internal auditing staff or by the audited
party's independent accountants who then audit the financial statements of
the audited party ("Independent Auditors"). The cost of such internal or
Independent Auditors review shall be borne by the audited party. The
audited party shall use its commercially reasonable efforts to immediately
correct any deficiencies related to performance uncovered by such audit.
10. General Provisions
10.1.Notices. All notices required or permitted to be given by any provision of
this Agreement must be in writing and mailed (certified or registered mail,
postage prepaid, return receipt requested) or delivered by hand, or
overnight courier marked next day morning delivery, or by confirmed
facsimile, charges prepaid and addressed as follows:
If to Sales Agent: If to Sprint:
----------------- ------------
AirGate PCS, Inc. Sprint
000 Xxxxxxxxx Xx., Xxx. 0000 0000 Xxxxxx Xxxxxxx
Xxxxxx Tower Mailstop KSOPHE0406-4B753
Xxxxxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxx Attn: Director, Partnership Marketing
-NCO
With a copy to: With a copy to:
AirGate PCS, Inc. Sprint
000 Xxxxxxxxx Xx., Xxx. 0000 0000 Xxxx Xxxxxxx
Xxxxxx Xxxxx Xxxxxx City; MO 64114
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx Attn: Vice President
-Law, Marketing & Sales
Any party may from time to time specify a different address by notice to
the other party. Any notice sent registered mail or certified mail will be
deemed delivered 3 days after the notice is mailed. Any notice delivered by
hand will be deemed effective when delivered to or refused by the party to
receive the notice. Any notice sent by overnight courier, marked next day
morning delivery, will be deemed delivered the day after it is deposited
with the overnight courier. A notice sent via facsimile is deemed delivered
upon receipt of confirmation that the facsimile was transmitted to the
other party's facsimile number.
10.2.Governing Law. The terms of this Agreement will be construed and
interpreted under the laws of the State of Kansas without regard to its
choice of law principles.
10.3.Jury Trial Waiver. THE PARTIES HEREBY EXPRESSLY WAIVE ANY RIGHT THEY MAY
HAVE TO A TRIAL BY JURY FOR ANY DISPUTE ARISING OUT OF OR RELATED TO THIS
AGREEMENT.
10.4.Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if each party signed the same
document. All counterparts are construed together and constitute one
Agreement.
10.5.Entire Agreement. The provisions of this Agreement, including the Exhibits
hereto, set out the entire agreement and understanding between the parties
as to the subject matter of this Agreement and supersede all prior
agreements, oral or written, and other communications between the parties
relating to the subject matter of this Agreement.
10.6.Waivers; Amendments. The observance of any term of this Agreement may be
waived (either generally or in a particular instance and either
retroactively or prospectively) by the party entitled to enforce the term,
but any waiver is effective only if in a writing signed by the party
against which the waiver is to be asserted. Except as otherwise provided in
this Agreement, no failure or delay of any party in exercising any power or
right under this Agreement operates as a waiver thereof, nor will any
single or partial exercise of the right or power, or any abandonment or
discontinuance of steps to enforce the right or power, preclude any other
or further exercise thereof or the exercise of any other right or power.
This Agreement may only be amended in writing.
10.7.Disclosure. Neither party may make any media release, public announcement
or other disclosures relating to this Agreement, its subject matter or the
purpose of this Agreement without the prior written consent of the other
party. If such disclosure is required by law or the rules of any exchange
on which such party's securities are listed, the disclosing party will
attempt to obtain the other party's consent prior to making the disclosure,
but the disclosing party will not be in breach of this provision if the
time required by law or the exchange's rules for making the disclosure
makes it impossible or impracticable to obtain such prior consent.
10.8.Compliance with Laws. The parties must comply with all applicable federal,
state, county and local laws, rules, regulations and orders that apply to
the performance of their obligations under this Agreement.
SPRINT COMMUNICATIONS COMPANY L.P. AIRGATE PCS, INC.
By:
By: /s/ Xxxxxx X. Xxxxxxxxx
Its:
Its: President and CEO
Name:
Name: Xxxxxx X. Xxxxxxxxx
A-2
EXHIBIT A
COMMISSIONS
1. Commissions
Sprint agrees to pay Sales Agent the following Commissions for the sale of
Sprint Services to Customers.
Sprint may, in its sole discretion, amend this Exhibit, except that the Monthly
Residual Commission may not be reduced with respect to Customers who purchased
Sprint Services prior to the date of such amendment as a result of Sales Agent's
efforts under this Agreement. Any amendment that affects the amount of
Commissions or the timing of earning or payment of Commissions is effective 30
days after Sales Agent is notified of the amendment.
1.1. Standard Commission. Subject to any charge backs described in this Exhibit,
Sales Agent earns a Standard Commission of $10 for each A-Status Sale by
Sales Agent.
1.2. Monthly Residual Commission. In addition to the Standard Commission, Sprint
will pay to Sales Agent a Monthly Residual Commission of 4.5% of the
Customer's Net Collectible Monthly Revenue for each consecutive month that
the Customer remains a Sprint Customer. Sales Agent will continue to earn
Monthly Residual Commission on any A-Status Sales that became A-Status
prior to the date of expiration or termination of this Agreement for as
long as the Customer continuously remains a Sprint Customer. If the
Customer switches to a new Sprint Service or service offering without first
canceling, terminating, disconnecting or deactivating his Sprint Service
that was purchased through Sales Agent, Sales Agent's Monthly Residual
Commission will be based on Customer's Net Collectible Monthly Revenue for
the new Sprint Service or service offering. If the Customer cancels,
terminates, disconnects or discontinues his Sprint Service for any reason,
Sprint will not pay Sales Agent any further Monthly Residual Commission for
that Customer.
2. Charge Backs
A "charge back" is an amount Sprint may charge against any amounts due to Sales
Agent for Commissions earned under the specific terms of this Agreement and for
no other reason. During the term of this Agreement and upon its termination, if
charge backs exceed Commissions and other amounts, if any, due to Sales Agent,
then Sales Agent must pay the excess to Sprint immediately upon notice by Sprint
to Sales Agent of the amount of the excess. Without limiting the generality of
this Section, the following items are charge backs:
2.1. If Sprint must adjust the account of a Customer because of
misrepresentations made by Sales Agent to the Customer in violation of
Sprint procedures, policies and operating guidelines established under
Section 2.3 hereof (e.g., promising free calling); or
2.2. If Sales Agent accepts payment from a Customer for a Sprint Service and the
payment is not immediately delivered to the person at Sprint authorized to
receive the payments in violation of Sprint procedures, policies and
operating guidelines established under Section 2.3 hereof.
No chargebacks are made with respect to an A-Status Sale even though the
Customer deactivates following such sale.
3. Errors
If Sprint determines that an error was made in any Commission paid to Sales
Agent, Sprint may adjust the next payment of Commission to Sales Agent to
correct the error. If no additional amounts are due Sales Agent, Sales Agent
must immediately upon receipt of notice of the error from Sprint pay the amount
of the error to Sprint.
