SUB-DEALER AGREEMENT
This Sub-Dealer Agreement, dated this 1st day of September, 2003, is
between T. Mobile USA, Inc. d/b/a T-Mobile, a Delaware corporation ("Company")
Action Wireless I [insert Sub-Dealer Name], a, Florida (insert state where
incorporated] corporation with an address at 000 XX 00xx Xx. Xxxx Xxxxx [insert
Sub-Dealer address] ("Sub-Dealer"), and Access Wireless [insert Dealer name]
("Dealer").
RECITALS
A. Company provides or is authorized to provide wireless communications
service ("Wireless Service") directly to Subscribers utilizing
authorized digital frequencies assigned by the Federal Communications
Commission and accessed by digital wireless - telephone equipment in
the Area defined herein.
B. Company and Dealer have entered into that certain Dealer Agreement
dated September 8, 03, (the "Dealer Agreement") pursuant to which
Dealer agrees to promote, market, and sell Company's Wireless Services
and Equipment: in the defined Area.
C. Sub-Dealer has agreed to become a sub-dealer of Dealer in order to use
Company's experience, Confidential Information, Marks, and goodwill to
promote, market, and sell Company's Wireless Services and Equipment in
the Area to Subscribers under the terms and conditions of this
Agreement and the Dealer Agreement,
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS
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Area. The collective geographic area, set forth in Exhibit B of the Dealer
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Agreement, in which the Company provides Wireless Service and with respect
to which the Dealer may act as an authorized dealer for Company pursuant to
such Dealer Agreement.
Equipment. Any approved voice, data, or combined voice and data devices,
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handsets, telephones, or related equipment or accessories to be used on
Company's network, including SIM Cards.
Intellectual Property Rights. All copyright, trademark, service xxxx, trade
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secret, patent and other intellectual property rights (including all rights
of registration or renewal thereof and all causes of action relating
thereto).
Market. The covered population in the geographic area which boundaries are
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defined by the Federal Communication Commission Licenses referenced in
Exhibit B,
Marks. All service marks, trademarks and trade names used by Company,
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including, but not limited to, the xxxx T-Mobile.
Market Rules. The rules and procedures pertaining to the Marks prescribed
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by Company from time to time.
Subscriber. Customers, subscribers, or end users purchasing the Equipment
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and activating Service through the Dealer and/or Sub-Dealer in the Area.
Each individual or business entity who (i) purchases a PCS handset(s) and
SIM Card(s) from Dealer, (ii) places an order for Service to a handset
through Dealer that is accepted by Company, and (iii) for whom Service is
Activated is a Subscriber.
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Subscriber Information. Any information gathered by or for Dealer about an
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actual or potential Subscriber including, without limitation, names,
addresses, e-mail addresses, telephone numbers, and other personally
identifying, whether or not such information was gathered prior to the
commencement of the Agreement.
Wireless Service. Wireless communication service, including voice and data
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service, provided by Company utilizing authorized digital frequencies
assigned by the Federal Communications Commission and accessed by digital
wireless.
2. SUB-DEALER GUIDELINES
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2.1 Adherence to Agreement. Sub-Dealer agrees to adhere to the terms and
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conditions of Company's Dealer Agreement, which is incorporated by this
reference. Sub-Dealer acknowledges that a breach by Sub-Dealer of the
Dealer Agreement shall be considered a breach by Dealer and shall entitle
Company to pursue all rights and remedies it may have under the Dealer
Agreement or under the law. The terms and conditions set forth in this
Sub-Dealer Agreement are in addition to the terms and conditions set forth
in the Dealer Agreement.
2.2 Termination of Sub-Dealer. Company shall have the right, in its sole
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discretion and at any time during the term of the Dealer Agreement, to
terminate a Sub-Dealer upon written notice to Dealer.
2.3 Non-Solicitation of Company's Dealers. During the term of the Dealer
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Agreement, Sub-Dealer and anyone acting on its behalf shall not recruit or
solicit sub-dealers, employees, dealers, agents, or independent contractors
from Company or from any other dealer of Company.
2.4 Prohibition on Non-Competition Agreements. Sub-Dealer, its employees, and
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agents shall not enter into an exclusivity or non-competition agreement
prohibiting them from working directly for Company, or from selling
Company's Wireless Service or Equipment.
2.5 Sub-Dealer Support. Sub-Dealer acknowledges that Dealer shall be
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responsible for providing adequate management support and resources to
Sub-Dealer and that Company has no such responsibility.
2.6 Sub-Dealer Compensation. Sub-Dealer acknowledges that Dealer shall be
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solely responsible for payment of any compensation owed, and for reporting
any and all information used by Company for purposes of compensating
Dealer.
2.7 Restrictions. Sub-Dealer shall only sell Equipment provided by Company and
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Dealer to Subscribers for end use and shall not sell or otherwise provide
such Equipment to other distributors, re-sellers, or other non-Subscribers.
Sub-Dealer shall not employ or enter any agreement to use sub-dealers.
Sub-Dealer shall not sell any restricted promotions or plans as defined in
the Dealer Agreement. Company shall have the right, in its sole discretion,
to approve or disapprove Sub-Dealer's retail locations.
2.8 Termination of Relationship Between Dealer and Sub-Dealer. Company in its
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sole discretion and at any time may choose to accept Sub-Dealer as a direct
dealer of Company. If Company accepts Sub-Dealer as a direct dealer of
Company, Company and Sub-Dealer shall enter into Company's dealer
agreement.
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2.9 No Agency Relationship. Sub-Dealer acknowledges that this Agreement does
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not create an agency, joint venture, partnership, employment relationship,
franchise or third party beneficiary rights with Company. Sub-Dealer shall
not have the authority to bind Company in any manner
3. ADDITIONAL OBLIGATIONS OF SUB-DEALER
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3.1 This Section Left Intentionally Blank
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3.2 Non-Diversion. Sub-Dealer acknowledges it has obtained significant goodwill
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from Company through use of its Confidential Information and Marks. During
the term of this Agreement and for a period of one year after termination
of this Agreement (whether voluntary or involuntary, with or without
cause), Sub-Dealer shall not directly or indirectly (a) request any
Subscriber in the Area whom Sub-Dealer knows to be a Subscriber of Company,
to curtail or deactivate the Wireless Service, or cancel its relationship
with Company, or (b) otherwise solicit, divert or attempt to divert any
such Subscriber from patronizing Company, Company dealers, Company retail
stores or the Wireless Service. During such period, any Subscribers of
Company who contact Sub-Dealer or its personnel regarding GSM Wireless
Service shall be referred directly to Company.
3.3 Confidential Information. "Confidential Information" means all information
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of or relating to Company (whether of a business, technical or other
nature) which Sub-Dealer knows or reasonably should know to be confidential
or proprietary. Without limiting the generality of the: foregoing,
"Confidential Information" includes all information not generally known to
the public that relates to the business, technology, Subscribers, potential
Subscribers, finances, budgets, projections, proposals, practices of
Company, including without limitation the terms of this, Agreement and the
Dealer Agreement, the identities of and all information regarding
Subscribers and potential Subscribers, and all information relating to
Company's business plans and proposals, marketing plans and proposals,
technical plans and proposals, and research and development. All
Confidential Information will be considered trade secrets of Company and
shall be entitled to all protections given by law to trade secrets. Any and
all media (whether written, film, tape, optical, magnetic, opto-magnetic or
otherwise) embodying any of the information described above shall also
constitute Confidential Information. Except for Subscriber Information,
which under all circumstances shall be treated as Confidential Information,
Confidential Information shall not include information which: (a) was in or
entered the public domain through no fault of Sub-Dealer; (b) Sub-Dealer
can show, by written evidence, was rightfully in Sub-Dealer's possession
prior to receipt thereof from Company; or (c) is disclosed to Sub-Dealer by
a third party legally entitled to make such disclosure without breach of
any obligation of confidentiality.
3.4 Non-Disclosure of Confidential Information. During the term of this
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Agreement and at all times thereafter, Sub-Dealer shall not directly or
indirectly (a) use any Confidential Information for any purpose other than
that for which it is used or disclosed under the terms of this Agreement or
the Dealer Agreement, (b) disclose to any person or entity any Confidential
Information or in any other way publicly or privately disseminate any
Confidential Information, or (c) assist, authorize or encourage anyone else
to use, disclose, or disseminate any Confidential Information, Without
limiting the foregoing, Sub-Dealer shall not use Confidential Information
related to Subscribers or potential Subscribers to directly or indirectly
contact or communicate with Subscribers or potential Subscribers concerning
the Company or its Wireless Service. Sub-Dealer further agrees it shall:
(a) hold all such Confidential Information in Confidence using the
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same degree of care that Sub-Dealer uses to protect its own confidential
and proprietary information (but in no event less than reasonable care);
(b) use the Confidential Information only for the purpose of performing
obligations under this Agreement; (c) reproduce any Confidential
Information only to the extent necessary to perform such obligations; (d)
restrict disclosure of and access to such Confidential Information only to
those Personnel who are directly concerned with, and who agree to maintain
the confidentiality of, the Confidential Information; and (e) take all
precautions necessary and appropriate to guard the confidentiality of the
Confidential Information, including informing employees who handle such
information that it is confidential and not to be disclosed to others. Upon
termination of this Agreement, all Confidential Information in the
possession or control of Sub-Dealer (including all originals and copies of
all or any portion of any Confidential Information) shall be promptly
returned to Company. Sub-Dealer shall be responsible for ensuring
compliance with this section by its officers, employees, agents,
contractors, and representatives.
3.5 Records. Sub-Dealer agrees to maintain at its principal place of business
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complete and accurate records of Sub-Dealer's business conducted pursuant
to this Agreement. Records will include, but are not limited to, documents
relating to sales of Equipment and Activation of Subscribers. All records
shall be made available for inspection by Company upon reasonable notice to
Sub-Dealer. Such records constitute Confidential Information that shall be
returned to Company upon termination or expiration of this Agreement.
Sub-Dealer shall provide Company with original Subscriber Wireless Service
agreements upon Company's request and according to policies and procedures
that may be issued by Company from time to time in its sole discretion.
4. INTELLECTUAL PROPERTY RIGHTS
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4.1 Marks. Sub-Dealer understands and acknowledges that the Marks, along with
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all Intellectual Property Rights associated therewith, are the property of
Company. Sub-Dealer acknowledges that it has no rights in or to the Marks
and shall not acquire any rights in the Marks or expectancy to their use as
a result of any use of the Marks by Sub-Dealer, and that all goodwill
arising out of any use of the Marks by, through OT under Sub-Dealer shall
inure solely to the benefit of Company. Following the termination of this
Agreement, Sub-Dealer shall immediately discontinue use of any Marks (and
any other trademarks or service marks which Company deems to be confusingly
similar thereto) and shall promptly destroy, or, at Company's option,
forward to Company, all advertising and promotional literature and signage
which contain any Marks.
4.2 Other Rights. Sub-Dealer acknowledges that the Wireless Service and
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Equipment involve: valuable Intellectual Property Rights of Company or its
licensors. As between Sub-Dealer and Company, Company shall retain all
right, title, and interest therein, and no title to or ownership of any
Intellectual Property Rights associated with any Wireless Service or
Equipment is transferred to Sub-Dealer or any Subscriber pursuant to this
Agreement.
4.3 Protection of Company Rights. Sub-Dealer will immediately notify Company of
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any infringement, misappropriation or violation of any Intellectual
Property Rights of Company or its licensors that comes to Sub-Dealers
attention. Sub-Dealer will not infringe or violate, and will use its best
efforts to preserve and protect Company's and its licensors' interest in,
all such Intellectual Property Rights. In the event of any such
infringement, misappropriation or violation by or resulting from the
activities of Sub-Dealer or any of its officers, employees, agents,
contractors or representatives, Sub-Dealer will promptly report such
infringement, misappropriation or violation to Company and Company will
take all steps Company deems reasonably necessary to terminate any such
infringement, misappropriation or violation. Company or its designee will
have exclusive control over the prosecution and settlement of any
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legal proceeding to enforce, to recover damages on account of any
infringement, misappropriation or violation, or to defend any of its or its
licensor's Intellectual Property Rights. Without limiting the generality of
the foregoing, Sub-Dealer will: (a) provide such assistance related to such
proceeding as Company may reasonably request; and (b) assist Company in
enforcing any settlement or order made in connection with such proceeding;
provided that Company will reimburse the expenses reasonably incurred by
Sub-Dealer to provide such assistance in accordance with Company's requests
for the same.
5. This Section Left Intentionally Blank.
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6. INDEMNITY; CONSEQUENTIAL DAMAGES
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6.1 General Indemnity. Sub-Dealer hereby agrees to indemnify, defend, protect,
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and hold Company, and its parent, subsidiaries, affiliates, officers,
directors, employees, agents, and --insurers, harmless from and against any
and all claims, costs, suits, liabilities, damages, losses, demands, and
expenses of every kind, including but not limited to attorneys' fees and
disbursements, arising out of any negligent act or omission or willful
misconduct of, or breach of this Agreement, by Sub-Dealer, or its
employees, agents, or independent contractors.
6.2 Indemnity as to Advertisement. In furtherance and not in limitation of the
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Indemnification obligations of Sub-Dealer set forth in section 6.1,
Sub-Dealer hereby agrees to indemnify, defend, protect, and hold Company
and its parent, subsidiaries and affiliates, and each of their officers,
directors, employees, agents, and insurers, harmless from and against any
and all claims, costs, suits, liabilities, damages, losses, demands, and
expenses of every kind, including, but not limited to, attorneys' fees and
disbursements, arising out of advertisements or promotional materials
developed or used by Sub-Dealer (except advertisements and promotional
materials that have been developed and provided by Company).
6.3 Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE FOR
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INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT
LIMITED TO LOST REVENUE OR PROFITS, IN CONNECTION WITH THIS AGREEMENT OR
THE CONDUCT OF BUSINESS BETWEEN DEALER AND SUB-DEALER, EVEN IF COMPANY WAS
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY HEREBY DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, NOT EXPLICITLY STATED IN THIS AGREEMENT,
AND IN PARTICULAR DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE,
7. TERMINATION
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7.1 Unless earlier terminated pursuant to paragraph 2.2 above, or under other
provisions of the Dealer Agreement, this Sub-Dealer Agreement shall
terminate contemporaneously with the Dealer Agreement; provided, however,
that Sub-Dealer's obligations under sections 3, 4, 5, and 6 of this
Sub-Dealer Agreement shall survive the termination of the Sub-Dealer
Agreement.
8. MISCELLANEOUS
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8.1 Entire Agreement. This Agreement represents the entire, complete, final and
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exclusive Agreement between the parties hereto with respect to the matters
addressed in this Agreement and, except as expressly provided herein, shall
not be affected by reference to any other documents.
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8.2 No Other Agreements. Sub-Dealer represents and warrants that the execution
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and performance of this Agreement does not and will not violate any other
contract or obligation to which Sub-Dealer is a party, including terms
relating to covenants not to compete and confidentiality covenants.
Sub-Dealer will not disclose or use, or induce others to use, any
proprietary information or trade secrets of any other person, association
or entity. Sub-Dealer represents and warrants that it has returned all
property and confidential information belonging to all other service
providers for whom Sub-Dealer may have acted as a dealer. This Agreement
and its Exhibit constitute the entire agreement and understanding between
the parties and supersede all offers, negotiations and other agreements
concerning the subject matter set forth in the Agreement. Sub-Dealer is not
relying on any representations or warranties from Company or Dealer,
including, but not limited to, any representation or warranty as to the
nature of competition or the results or effect of any advertising. Except
as set forth herein, any amendments to this Agreement must be in writing
and signed by both parties.
8.3 Remedies Cumulative. The right; and remedies herein expressly provided are
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cumulative and not exclusive of any rights or remedies that a party would
otherwise have.
8.4 Assignment. Sub-Dealer shall not assign its rights or delegate its
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obligations hereunder without the prior written consent of Company. This
prohibition shall extend to a change in the control of Sub-Dealer, which is
defined to be any change as a result of which any person or entity holds
50% or more of the ownership interest or assets of Sub-Dealer.
8.5 Severability. If any provision of this Agreement shall be held invalid
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under any applicable laws, such invalidity shall not affect any other
provisions of this Agreement that can be given an effect without the
invalid provision. Further, all terms and conditions of this Agreement
shall be deemed enforceable to the fullest extent permissible under
applicable law and, when necessary, the court is requested to reform any
and all terms or conditions to give them such effect.
8.6 Authority. Each person signing below hereby warrants and represents that he
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or she has full authority to execute this Agreement for the party on whose
behalf he or she is signing.
8.7 No Waiver. No failure by a party to take action on account of any default
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or breach of this Agreement by the other party shall constitute a waiver of
any such default or breach, or of the performance required of the other
party under this Agreement.
8.8 Notices. All notices and other communications hereunder shall be given in
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writing and shall be deemed to have been duly given and effective (i) upon
receipt if delivered in person, or via telecopy, (ii) one day after deposit
prepaid with a national overnight express delivery service, or (iii) three
days after deposit in the United States mail, Notices to Sub-Dealer shall
be delivered or transmitted to its address specified on the first page of
this Agreement. Any Party may from time to time change such address by
giving the other Party notice of such change in accordance with this
Section.
8.9 Arbitration of Disputes.
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8.9.1 Submission to Arbitration. Any controversy or claim arising out of or
relating to this Agreement (including whether a particular dispute is
arbitrable hereunder), shall be resolved by submission to binding
arbitration. Such arbitration shall be held in the county in which
Dealer's principal place of business is located before a single
arbitrator who shall be an attorney in such county who has practiced
as a commercial litigator for at least fifteen (15) years. The
arbitration shall be conducted under the commercial arbitration rules
of the American Arbitration Association, except to the extent that,
those
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titles are modified herein, but shall not be administered by the
American Arbitration Association. The parties shall equally bear the
fees of the arbitrator.
8.9.2 Selection of Arbitrator. If the parties cannot agree on an
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arbitrator, the arbitrator shall be selected by the Chief Judge of
the United States District Court for the district in which
Dealer's principle place of business is located, in accordance
with the Federal Arbitration Act. The arbitrator so selected
shall possess the qualifications described in paragraph 8.9.1.
Each party may, but need not, suggest up to three potential
arbitrators to the appointing authority.
8.9.3 Discovery and Motions. The arbitrator selected may grant discovery as
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required by the reasonable needs of the case and determine
motions filed, including motions for preliminary or ancillary
relief, but shall do so in accordance with the parties' desire to
economically and quickly resolve disputes between them. Discovery
shall be allowed --only as the parties may agree or the
arbitrator may permit.
8.9.4 Limitation of Action. All claims and disputes that arise under this
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Agreement shall be submitted to arbitration by initiating the
arbitration not later than one (1) year after occurrence of the
act or omission giving rise to the dispute. Any failure to
initiate arbitration proceedings within this one (1) year period
shall constitute an absolute bar to the initiation of proceedings
based on such act or omission.
8.9.5 Limitation of Arbitration. The aggrieved party may initiate
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arbitration by sending written notice of an intention to
arbitrate to all parties, such notice to include a description of
the dispute, the amount involved, and the remedy sought. Each
party irrevocably agrees that service of process, notices or
other communications relating to the arbitration procedure shall
be deemed served and accepted by the other if given in accordance
with the provisions of this agreement.
8.9.6 Decision and Enforcement of Award. Any award rendered in the
---------------------------------
arbitration shall be final, non-appealable, and binding on both
parties, and judgment may be entered thereon in any court of
competent jurisdiction. Any award rendered shall be limited to
actual damages sustained by the party in whose favor judgment is
rendered, and no consequential, punitive, exemplary, special or
multiplied damages shall be awarded. The award of the arbitrator
shall be in writing, with one counterpart delivered to each
party.
8.9.7 Preliminary and Ancillary Relief; Forum Selection; Consent to
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Personal Jurisdiction. Where feasible, issues of preliminary and
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ancillary relief shall first be determined by an arbitrator
selected in accordance with the provisions of this Agreement. In
an emergency, however, when irreparable injury will occur before
an arbitrator can be appointed and/or hear the matter, the
aggrieved party may apply to a court for preliminary or ancillary
relief. Any such application shall be made in any state or
federal court having jurisdiction. Sub-Dealer irrevocably submits
to the personal jurisdiction of such courts. The parties agree
that violations or threatened violations of paragraphs 3.2, 3.4,
4.1, and 5.1 of this Agreement occurring when no arbitrator has
been appointed shell presumptively be grounds for application to
a court under this paragraph. In such cases, the Dealer's bond
shall be unsecured unless good cause is shown.
8.9.8 Exceptions to Arbitration. Notwithstanding the foregoing, Company
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shall have the right to institute legal or equitable proceedings
for claims or disputes regarding amounts owed by Sub-Dealer to
Dealer in connection with purchase of the Equipment
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The parties acknowledge they have fully read and understood this Agreement, and
have had the opportunity to confer with legal counsel regarding its terms and
conditions.
EXECUTED as of the day and year first above written.
SUB-DEALER NAME: Action Wireless II
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OWNER/OFFICER (printed): Xxxxxx Xxxx President Action Wireless
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SIGNATURE; /s/ Xxxxxx Xxxx Action Wireless
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TITLE: President
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DEALER NAME:
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OWNER/OFFICER (printed):
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SIGNATURE:
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TITLE:
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Sub-Dealer Approval Granted:
T-MOBILE USA, INC.
By:
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Its:
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Date:
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