DEALER AGREEMENT
---------
XxXXX COMMUNICATIONS
OF FLORIDA, INC.
AND ITS
FLORIDA REGION AFFILIATES
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January 1, 1995
TABLE OF CONTENTS
PAGE
1. APPOINTMENT OF DEALER
1.1. General.......................................................... 1
1.2. Incorporation and Amendment of Dealer Program Rules.............. 2
1.3. Other Dealers' and Company's Right to Solicit Potential
Subscribers...................................................... 2
1.4. No Franchise .................................................... 2
2. GENERAL DUTIES OF DEALER.................................................. 2
2.1. Ethical Conduct and Practices.................................... 3
2.2. Records.......................................................... 3
2.3. Employees and Owners............................................. 3
2.4. Compliance with Other Obligations................................ 4
2.5. Compliance with Laws............................................. 4
2.6. Compliance with Company Policies and Procedures.................. 5
2.7. Store Front Location; Advertising Restricted to Area............. 5
2.8. Store Maintenance................................................ 5
3. DUTIES RELATING TO SERVICE................................................ 5
3.1. Best Efforts; Subscriber Contacts................................ 5
3.2. Company Is Service Provider...................................... 5
3.3. Subscriber Forms/Service Agreements.............................. 5
3.4. Rates, Terms and Conditions of Service........................... 5
3.5. Company Exclusive Rate Plans and Subscribers..................... 6
3.6. Changes in Rates and Terms....................................... 6
3.7. Acceptance of Potential Subscriber Applications for Service...... 6
3.8. Rejected Applications............................................ 6
3.9. Service Activation............................................... 6
3.10. Deposits and Subscriber Payments................................. 6
3.11. No Charges or Billing by Dealer.................................. 7
3.12. Billing by Company............................................... 7
3.13. Company's Right to Settle Claims................................. 7
3.14. Relationship Between Dealer and Subscribers...................... 7
3.15. Dealer Shall Not Process Improper Applications................... 7
4. DUTIES RELATING TO EQUIPMENT.............................................. 8
4.1. FCC and Company Equipment Standards.............................. 8
4.2. Dealer's Sales and Lease Terms................................... 8
4.3. Equipment Supplied By Company.................................... 8
4.4. Demonstration Equipment.......................................... 8
5. PROGRAMMING AND EQUIPMENT SERVICES PROVIDED BY DEALERS.................... 9
5.1 Dealer's Obligation to Program Cellular Telephones............... 9
5.2. Only Qualified Personnel Shall Program and Repair Equipment...... 9
5.3. Referral to Company Authorized Service Centers................... 9
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6. COMMISSIONS ON SUBSCRIBER ACTIVATIONS..................................... 9
6.1. Applicability.................................................... 9
6.2. Activations Obtained by Dealer................................... 9
6.3. Commission Rates, Payment and Modification....................... 9
6.4. Commissions Are Total Compensation of Dealer..................... 10
6.5. Company's Right to Offset........................................ 10
6.6. Disputes between Dealers and Others.............................. 10
6.7. Dealer's Obligation to Obtain Confidentiality and Non-Competition
Agreements; Effect on Commissions................................ 10
7. TRAINING AND CERTIFICATION OF DEALER PERSONNEL............................ 10
7.1. Requirement to Attend Training................................... 10
7.2. Certification Program............................................ 10
8. TRADEMARKS, SERVICE MARKS AND TRADE NAMES................................. 11
8.1. Exclusive Property of Company.................................... 11
8.2. Authorization for Use Is Required................................ 11
8.3. Unauthorized Use Is Infringement................................. 11
8.4. No Rights in or to Names......................................... 11
8.5. Termination of Use............................................... 11
9. CO-OP ADVERTISING AND DEALER AIRTIME PROGRAMS............................. 11
9.1. Co-Op Advertising................................................ 11
9.2. Dealer Responsibility to Pay for Advertising..................... 12
9.3. Dealer Airtime Program........................................... 12
10. RELATIONSHIP OF COMPANY AND DEALER....................................... 12
10.1. General Description.............................................. 12
10.2. Dealer Supervision of Its Personnel.............................. 12
10.3. Other Dealer Business Activities................................. 12
10.4. Dealer Responsible for Own Costs................................. 12
10.5. Limitation of Dealer Authority................................... 12
10.6. Variance of Company's Terms and Conditions by Dealer............. 13
11. DEFAULT BY DEALER OR COMPANY............................................. 13
11.1. Events of Default by Dealer...................................... 13
11.2. Events of Default by Company..................................... 13
12. TERM AND TERMINATION..................................................... 14
12.1. Term of Agreement................................................ 14
12.2 Ninety-Day Termination........................................... 14
12.3 Termination for Cause............................................ 14
12.4. Dealer's Right to Terminate Due to Change in Dealer
Program Rules.................................................... 14
12.5. Expiration, Revocation or Transfer of Licenses................... 14
13. OBLIGATIONS FOLLOWING TERMINATION........................................ 15
13.1. Surviving Obligations upon Termination........................... 15
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13.2. Post-Termination Reserve......................................... 15
13.3. Dealer to Cease to Hold Itself Out as a Dealer Post-Termination.. 15
14. CONFIDENTIAL INFORMATION................................................. 16
14.1. "Confidential Information"....................................... 16
14.2. Agreement Establishes Confidential Relationship.................. 16
14.3. Obligations on Termination....................................... 16
14.4. Material Consideration for Agreement............................. 17
14.5. Information in Public Domain..................................... 17
14.6 Customer Lists................................................... 17
14.7. Information of Company's Affiliates.............................. 17
15. NONDIVERSION OF SUBSCRIBERS.............................................. 17
15.1. Dealer Shall Not Divert Subscribers.............................. 17
15.2. Continuation of Confidentiality.................................. 17
15.3. Subscribers Are Customers of Company............................. 18
16. NON-COMPETITION.......................................................... 18
16.1. Covenant Not to Compete.......................................... 18
16.2. Elimination of Non-Competition Period............................ 18
16.3. Covenant Is Ancillary and Necessary.............................. 19
16.4. Construction of Covenants by Courts.............................. 19
17. FINANCIAL DATA........................................................... 19
17.1. Dealer Warranty of Dealer Financial Data......................... 19
17.2. Dealer's Duty to Update Financial Data........................... 19
18. DISPUTES AND CLAIMS...................................................... 19
18.1 Notice of Disputes and Waiver of Claims.......................... 19
18.2 Indemnification.................................................. 20
18.3 Court Proceedings................................................ 20
18.4 Attorneys' Fees.................................................. 20
18.5 Waiver of Consequential Damages.................................. 21
19. MISCELLANEOUS............................................................ 21
19.1 Notices.......................................................... 21
19.2. No Waiver........................................................ 21
19.3. Ambiguities...................................................... 21
19.4. Construction of Agreement........................................ 22
19.5. Amendments....................................................... 22
19.6. Benefit of Agreement; Prohibited Assignments..................... 22
19.7. Severability..................................................... 22
19.8. Sections and Clauses............................................. 22
19.9 Descriptive Headings............................................. 23
19.10. Confidentiality Agreement of Terms............................... 23
19.11. Authority........................................................ 23
19.12. No Interlineation................................................ 23
20. INDEPENDENT INVESTIGATION................................................ 23
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DEALER AGREEMENT
THIS AGREEMENT, effective as of January 1, 1995, is between XxXXX
COMMUNICATIONS OF FLORIDA, INC., d/b/a Cellular One, a Florida corporation with
executive offices at 000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx
00000, on behalf of itself and its affiliates holding licenses from time to time
to provide non-wireline cellular radiotelephone service ("Service") within the
State of Florida (collectively, "Company"), and SOUND ADVICE, INC., a Florida
corporation with executive offices at 0000 Xxxxxxxxx Xxxx., Xxxxx, Xxxxxxx 00000
("Dealer").
RECITALS
I. Company is authorized to provide Service in certain areas within the
State of Florida, which areas may change from time to time (collectively, the
"Area"), to Subscribers (as defined in Exhibit A to this Agreement), and desires
to enter into agreements with Dealer and with others to obtain their assistance
in obtaining requests from potential Subscribers in the Area. A list of the
areas in Florida within which Company provides Service as of the date set forth
therein pursuant to licenses granted by the Federal Communications Commission
("FCC") is set forth in the attached Schedule 1.
II. Dealer desires to enter into this Agreement with Company to assist
Company in obtaining requests for Service by referring potential Subscribers to
Company for activation on Company's Service in the Area.
AGREEMENTS
In consideration of the covenants and promises contained herein, and
intending to be legally bound hereby, the parties agree as follows:
1. APPOINTMENT OF DEALER
1.1. General. Company appoints Dealer to be an authorized Dealer for
Company within the Area: (i) to obtain requests from potential Subscribers to
Company's Service in the Area; and (ii) to provide such after-activation
assistance to Subscribers for Company's Service as may be authorized by Company.
Dealer hereby accepts this appointment by Company. Dealer shall perform the
functions of a dealer and shall be compensated in accordance with this
Agreement. As an agent for obtaining requests from potential Subscribers for
Company's Service in the Area, Dealer's authority is limited to soliciting
potential Subscribers for Company's Service in the Area and programming the
equipment of all Subscribers whose applications are accepted by Company, in
accordance with this Agreement. Dealer is not a general agent of Company.
1.2. Incorporation and Amendment of Dealer Program Rules. The terms of
the Dealer Program Rules, including all future amendments and modifications, are
and shall at all times be incorporated into this Agreement. The Dealer Program
Rules which shall apply immediately upon the effectiveness of this Agreement are
attached as Exhibit A. The Dealer Program Rules may be amended and modified by
Company on thirty (30) days advance written notice to Dealer, subject to
Dealer's right to terminate under Clause 12.4. Each amendment to the Dealer
Program Rules shall specify its effective date and shall apply with respect to
activations of Service to Subscribers on or after such date, until further
amendment and modification. The provisions of the Dealer Program Rules in effect
on any particular date shall govern the commissions payable to Dealer,
charge-back periods, and the like with respect to the Subscribers accepted on
such date. The Dealer Program Rules may include, in addition to the matters
referenced in Clause 6.3, such other rules, policies and procedures as Company
may from time to time establish pursuant to this Agreement (although it shall
not be necessary to include all such matters in the Dealer Program Rules),
including, without limitation, reasonable charges to be imposed on Dealer
arising out of irregularities in its performance of its duties hereunder.
1.3. Other Dealers' and Company's Right to Solicit Potential
Subscribers. Dealer acknowledges and agrees that Company shall have, at all
times during the term of this Agreement, the right:
(a) to market its Service to potential Subscribers, to obtain
requests for its Service and to activate Subscribers, itself and through
affiliated and unaffiliated entities, including, without limitation,
other dealers or agents, with or without Dealer's assistance; and to
obtain requests for additional service from existing Subscribers,
whether or not such Subscribers were referred by Dealer; and
(b) to sell or lease cellular radio telephone parts and equipment
and related cellular telephone equipment (e.g., modems, computers, and
fax machines) ("Equipment"); and to provide installation, maintenance or
repair service for such Equipment ("Equipment Service"), itself and
through affiliated and unaffiliated entities, to (i) potential
Subscribers, (ii) Subscribers, (iii) other dealers, and (iv) any other
person or entity.
1.4. No Franchise. Dealer shall not pay, and Dealer acknowledges that it
has not paid, any franchise or other fee for the right to become or to remain
Company's dealer, or to use or to continue to use any trademark, service xxxx,
or trade name of Company. The parties agree that no franchise is created under
this Agreement and will not be created by any performance of this Agreement.
2. GENERAL DUTIES OF DEALER
Dealer understands and acknowledges that the high quality operation of
its business is very important to Company, to its affiliates, to other dealers
of Company, and to the licensors of the Names (as defined in Clause 8.1)
utilized by Company from time to time. In order to maintain high standards of
service, integrity and fair dealing, and to protect the
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reputation and goodwill of Company and the Names, Dealer acknowledges and
accepts the following duties:
2.1. Ethical Conduct and Practices. In all dealings with Subscribers,
Company, and members of the public, Dealer will be governed by the highest
standards of honesty, integrity, fair dealing, and ethical conduct. Dealer shall
not engage in any activity harmful to Company's goodwill or reflecting
unfavorably on Company or the Names. This prohibition shall include, but not be
limited to, the commission of any unfair trade practice, the publication of any
false, misleading, or deceptive advertising, or the commission of any fraud or
misrepresentation, including the falsification of Subscriber applications or any
other misrepresentation by Dealer to Company.
2.2. Records. Dealer shall create and maintain reasonable records of all
transactions and activities relating to this Agreement and any other records
required from time to time by applicable law. Dealer shall store such records at
its principal place of business and preserve them for a reasonable time from the
date of their preparation. Dealer shall make these records available to Company
during normal business hours upon 72 hours prior notice.
2.3. EMPLOYEES AND OWNERS.
(a) "Dealer Personnel." Dealer Personnel are defined to be all
persons or entities (whether or not called employees of Dealer) who (i)
are engaged by Dealer primarily to solicit potential Subscribers; (ii)
have access through Dealer to Confidential Information (as defined in
Clause 14.1 herein); or (iii) directly or indirectly own or control ten
percent or more of the ownership interest in Dealer.
(b) Approval of Dealer Personnel. Before hiring anyone or allowing
anyone to act as Dealer Personnel, Dealer agrees to inquire of that
person whether (s)he has any prior experience in the wireless
communications industry. If the person indicates that (s)he has such
experience, Dealer agrees to notify Company, at least seven days in
advance of hiring anyone or allowing anyone to act as Dealer Personnel,
of the person's name, potential position, and experience, and to inquire
of Company whether the person would be approved to solicit business on
behalf of Company. If Company determines not to approve someone (whether
a potential or current Dealer Personnel) to solicit applications for
Company's Service, it shall promptly notify Dealer of that
determination. Dealer agrees to abide by Company's determination, and
not to employ any person as Dealer Personnel not approved by Company.
Approval or non-approval by Company of Dealer Personnel shall not be
deemed to reflect any substantive review of the credentials and
qualifications of such persons. Company, in its sole discretion, and
acting in good faith, shall be entitled to revoke its prior approval of
any Dealer Personnel. Dealer shall advise all Dealer Personnel of
Company's rights under this Clause.
(c) Responsibility for All Personnel. Dealer will be responsible
for the performance by any person or entity associated with Dealer in
connection with Dealer's obligations hereunder, including Dealer
Personnel, as if such acts were performed by Dealer, including, without
limitation, compliance by them with the provisions of this Section and
of Sections 3, 8, 14, 15, and 16. Any action taken or
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omitted by any such associated person or entity may constitute an
event of default under Section 11 hereof as if such action had been
taken by the Dealer. Notwithstanding the foregoing, Company shall be
under no obligation to any such associated person or entity and they
shall not be regarded as intended third-party beneficiaries of this
Agreement. Company shall have no responsibility or liability with
respect to any such associated person or entity.
(d) Sales Agents; Sharing of Commissions. Without Company's
specific written consent, Dealer shall not, directly or indirectly,
share any commissions earned pursuant to this Agreement with any
commission agents, subdealers or other persons or entities, except for
Dealer's own employees.
(e) Confidentiality and Non-Competition Agreements. Dealer shall
cause each Dealer Personnel to enter into a Confidentiality and
Non-Competition Agreement in a form satisfactory to Company, a copy of
which shall be delivered to Company within one week after the
commencement of the Dealer Personnel relationship. A currently
acceptable form is attached as Exhibit B.
(f) Communications between Dealer and Company. In order to
establish and maintain clear lines of communication between Dealer and
Company, Company may elect to deal only with specified officers of the
Dealer, if Dealer is a corporation; a partner, if Dealer is a
partnership; or the proprietor, if Dealer is a proprietorship.
2.4. Compliance with Other Obligations. As a material consideration for
inducing Company to enter into this Agreement, Dealer represents and warrants as
follows:
(a) that, by executing and implementing this Agreement, Dealer is
neither in breach nor in violation of any terms or conditions of any
other contract to which Dealer is or was a party, including, but not
limited to, terms relating to covenants not to compete;
(b) that, during the term of this Agreement, Dealer shall not
disclose to Company, or use, or induce Company to use, any proprietary
information or trade secrets of others. Dealer represents and warrants
that it has returned all property and confidential information belonging
to any other wireless telecommunications provider or to any other dealer
of Company with which it was previously affiliated in the Area except as
otherwise permitted by the owner of such property or information. Dealer
further represents and warrants that its performance of the terms of
this Agreement will not breach any agreement to keep in confidence
proprietary or trade secret information acquired by Dealer in confidence
or in trust prior to Dealer's engagement by Company; and
(c) that Dealer has not entered into, and Dealer agrees it will not
enter into, any agreement in conflict with this Agreement.
2.5. Compliance with Laws. Dealer shall comply with all applicable
federal and state laws, rules, regulations and court orders, including all FCC
rules, federal and state tariffs, and
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rules and procedures relating to the Dealer's obligations under the Agreement
and the conduct of Dealer's or Company's business.
2.6. Compliance with Company Policies and Procedures. Dealer shall
comply with Company's written policies and procedures as promulgated from time
to time (whether before or after the making of this Agreement) as Company deems
reasonable for the administration of its business.
2.7. Store Front Location; Advertising Restricted to Area. Dealer shall
operate its business hereunder at such store-front location(s) as Company
approves from time to time. Dealer shall not establish any other location from
which to conduct business pursuant to this Agreement or advertise Service in a
media that is primarily directed to potential Subscribers residing more than 50
miles from the store without the prior written consent of Company, which may be
granted or withheld in Company's sole discretion. This provision is for the
benefit of Company. Company shall have no liability to Dealer in connection with
its approval of any location of Dealer or of any other dealer; Company's
approval shall not be deemed to imply any assessment of the potential profits or
losses which may arise from Dealer's operations at any location. Dealer
acknowledges that Company may base its decision on confidential information
regarding Company's business plans and that Company may decline to provide any
reason for its decisions. Notwithstanding the foregoing, if Dealer is primarily
engaged in the sale of a broad range of consumer products from one or more
retail outlets, Company may not object to the solicitation of potential
Subscribers at a new location unless Company can show substantial harm to its
general business from such activity.
2.8. Store Maintenance. Dealer agrees that each store location must be
maintained in a first-class manner in order to promote and protect Company's
business, reputation and goodwill, and the Names used by Company.
3. DUTIES RELATING TO SERVICE
3.1. Best Efforts: Subscriber Contacts. Dealer shall use its best
efforts to solicit and obtain requests for Service from potential Subscribers.
Dealer shall use commercially reasonable efforts at all times and give prompt,
courteous, and efficient service to the public. When soliciting potential
Subscribers, Dealer shall perform these duties in the manner provided in this
Agreement, including the Dealer Program Rules.
3.2. Company Is Service Provider. Dealer shall not represent itself as a
licensee of Service. In all dealings with the public with respect to Service,
Dealer will identify Company as Service provider.
3.3. Subscriber Forms/Service Agreements. All service agreements,
applications and other documents relating to Service that are used by Dealer in
its efforts to solicit and obtain requests for Service from potential
Subscribers shall be on forms approved by Company.
3.4. Rates, Terms and Conditions of Service. When soliciting potential
Subscribers for Service, Dealer shall quote only such rates, rate plans, prices,
terms, and conditions of Service as Dealer is specifically authorized by Company
to communicate to potential
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Subscribers. Dealer shall have no authority to offer any other rates, rate
plans, prices, terms, or conditions to Subscribers for Service. Moreover, Dealer
shall not grant any discount or make any adjustment to any rate, rate plan,
price, term, or condition for Service or charge an application or programming
fee for Dealer's services, or agree to any prices, terms, or conditions relating
to Service with Subscribers or potential Subscribers without Company's express
written permission. Dealer acknowledges that the hold harmless obligations of
Clause 18.2 apply to this Clause 3.4, and authorizes Company to offset, against
any commissions owed Dealer, all costs, expenses, losses and damage suffered by
Company from a breach of this Clause 3.4. This remedy is in addition to any
other remedy Company has for breach under this Agreement or applicable law.
3.5. Company Exclusive Rate Plans and Subscribers. Dealer acknowledges
that (i) Company may, from time to time, authorize or not authorize Dealer to
solicit requests for Service from potential Subscribers under certain of
Company's rate plans, including, for example, rate plans designed for
governmental entities or other special categories of Subscribers or potential
Subscribers; and (ii) Company may also, from time to time, authorize or not
authorize Dealer to solicit requests for Service from certain categories of
Subscribers or potential Subscribers, or certain specific Subscribers or
potential Subscribers identified by Company.
3.6. Changes in Rates and Terms. Consistent with applicable regulatory
requirements, laws or tariffs, Company may change or amend its rates, terms, or
conditions for Service at any time for existing or potential Subscribers.
3.7. Acceptance of Potential Subscriber Applications for Service. All
applications received by Dealer for Service from potential Subscribers shall be
subject to acceptance or rejection by Company, based upon the credit of the
potential Subscriber, the sufficiency and validity of information relating to
the potential Subscriber's application, or any other valid business reason as
Company, in its sole reasonable judgment, may determine.
3.8. Rejected Applications. If Company does not accept an application
obtained by Dealer from a potential Subscriber, Dealer shall not enter into a
written agreement for Service with, or otherwise agree to provide Service to,
the potential Subscriber concerned. Furthermore, Dealer may not sell, refer or
disclose any information respecting the rejected applicant to any third party.
3.9. Service Activation. Dealer shall comply with all Service activation
procedures generally utilized by Company of which it is advised from time to
time.
3.10. Deposits and Subscriber Payments. Dealer shall, as trustee for
Company, collect from potential Subscribers prior to activation of Service such
deposits and advance payments for Service as Company shall require. Except as
Dealer is otherwise advised in writing, all deposits and advance payments shall
be made payable to Company, not Dealer. Dealer shall deliver all such payments
to Company in accordance with activation procedures established by Company. If
Dealer fails to collect the required deposits and advance payments, Dealer shall
be liable therefor, and Company shall have the right to collect such amounts
from Dealer.
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3.11. No Charges or Billing by Dealer. Except as otherwise advised in
writing by Company, Dealer shall not charge, xxxx, or collect any sums from any
person in connection with the person's acquisition or use of Service. Dealer's
sole compensation for assisting such persons shall be the commission provided
for in this Agreement.
3.12. Billing by Company. All billing of Subscribers for Service shall
be made directly by Company, and all remittances resulting from such xxxxxxxx
shall be the property of Company and shall be made payable to Company by such
Subscribers. When requested by Company, Dealer shall give reasonable assistance
to Company in obtaining any information relating to a claim or obligation of a
Subscriber.
3.13. Company's Right to Settle Claims. Company retains for itself the
sole right to collect all monies and to settle all claims by Subscribers
relating to Service. Dealer shall have no right to require Company to assert or
enforce claims against Subscribers beyond what Company believes, in its
reasonable judgment, to be commercially desirable.
3.14. Relationship Between Dealer and Subscribers. The parties
acknowledge that Dealer's duties hereunder consist solely of acting on Company's
behalf as a facilitator to match Service needs of potential Subscribers with
Service made available by Company within the Area. Dealer's only compensation
for this service is the commission provided for by Section 6 herein. Dealer
shall not charge Subscribers for its services in connection with facilitating
Subscribers' relationships with Company. The parties acknowledge and agree that
the provision of Service is a transaction between Company and the Subscriber
only, and that Dealer has no rights in or to the transaction. Dealer shall not
act, directly or indirectly, as a reseller of Service in the Area during this
Agreement or any non-competition period that follows. Without limiting the
generality of the foregoing, neither Dealer nor its parents, subsidiaries,
affiliates, owners, or Dealer Personnel will take any financial responsibility
for payment for Service for third parties, or otherwise suggest, initiate or
facilitate the establishment of any arrangement to mitigate the Subscriber's
financial risk arising out of his agreement for Service or for management of the
account or otherwise interfere with the intended contractual relationship
between Company and Subscriber. Notwithstanding the foregoing, Dealer may submit
applications in its own name as Subscriber and receive commissions thereon if
the Service is provided (i) for the predominant use of employees of Dealer,
Dealer Personnel or their family members and (ii) on a rate plan available to
the general public through Dealer.
3.15. Dealer Shall Not Process Improper Applications. During the term of
this Agreement, Dealer, its owners, Dealer Personnel, and affiliates shall not
at any time process an application for Service involving: (i) a "No Install"
account; (ii) an unauthorized corporate or "Multi-User" account; (iii) "Internal
Churn" or "Delayed Internal Churn" (to the extent and as each is defined from
time to time in the Dealer Program Rules); or (iv) any other action or device
intended to manipulate the timing or inflate the amount of commissions payable
with respect to a Subscriber beyond that which is contemplated by this
Agreement. It shall be a breach of this Agreement for Dealer knowingly to
process any application in violation of this provision, or to encourage or to
permit any Subscriber or potential Subscriber, or any Dealer Personnel, to
submit such applications. Dealer shall be deemed to be in breach of this
Agreement if more than 10% of Dealer's applications for Service for any calendar
month are
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determined to have been submitted in violation of this Clause 3.15, regardless
of whether Dealer had prior knowledge of the violation.
4. DUTIES RELATING TO EQUIPMENT
4.1. FCC and Company Equipment Standards. Dealer acknowledges that the
quality of Equipment used by Subscribers is important because faulty Equipment
may denigrate the quality, security, and reliability of Service. Therefore,
Company shall have the right to approve the Equipment sold or leased by Dealer
to Subscribers to ensure that the minimum technical standards of the FCC and
Company are met. Dealer shall not recommend, sell, lease, or furnish to
potential or actual Subscribers of Company any Equipment disapproved by the FCC
or Company for failure to meet minimum technical, security and reliability
standards. Company's approval of Equipment will not be unreasonably withheld.
4.2. Dealer's Sales and Lease Terms. All sales of Equipment by Dealer to
Subscribers and potential Subscribers and all leases of Equipment to Subscribers
and potential Subscribers, where Dealer is the Seller or Lessor, shall be for
Dealer's own account and not as an agent of Company. Dealer shall be solely
responsible for establishing the price and other terms and conditions for all
such sales and leases of Equipment owned by it. In addition, Company may, at its
option, from time to time provide Dealer the opportunity to sell or lease
Equipment owned by Company or a third-party lessor ("Lease Equipment") to
subscribers. Such programs may be the subject of separate agency or consignment
agreements with Dealer and may or may not include provisions for any additional
commission to Dealer; no entitlement to any additional commission shall be
presumed. In the event such program is offered, Dealer may, as agent for Company
acting as a seller or lessor or for a third-party seller or lessor (collectively
"Seller" or "Lessor"), supply Equipment to Subscribers through sales or leases
between Subscriber and Seller or Lessor. In such event, all terms and
conditions, including price, shall be established and shall be subject to change
by the Seller or Lessor. Dealer shall use forms, applications and other
documents provided by the Seller or Lessor, and shall offer the Equipment to
Subscribers for sale or lease from the Seller or Lessor only at prices and on
terms and conditions established by Seller or Lessor from time to time.
Company's interest in leased Equipment may be sold or assigned to third parties.
4.3. Equipment Supplied By Company. If Company chooses to supply any
type or style of Equipment for sale to Dealer, all of Dealer's purchases of such
Equipment from Company shall be governed by terms and conditions separately
established between Dealer and Company in another agreement. Dealer understands
that Company is not under any obligation to sell Equipment to Dealer under this
Agreement and that Dealer is under no obligation to purchase Equipment from
Company.
4.4. Demonstration Equipment. Company may, at its sole option, supply
Equipment to Dealer for demonstrating Service to potential Subscribers
("Demonstration Equipment"). Notwithstanding Company's ownership of
Demonstration Equipment, Dealer shall bear the risk of loss or damage by any
means whatsoever (ordinary wear and tear excepted) from the time any such
Equipment is placed in the possession of Dealer until it is returned to Company.
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5. PROGRAMMING AND EQUIPMENT SERVICES PROVIDED BY DEALERS
5.1 Dealer's Obligation to Program Cellular Telephones. It shall be
Dealer's obligation to program the Equipment of each Subscriber whose
application for Service was obtained through Dealer's efforts and which
application was accepted by Company with the cellular telephone number assigned
by Company for use on Company's Service and other parameters specified by
Company in connection with Service. The commission paid to Dealer pursuant to
the Dealer Program Rules shall be the only compensation Dealer is entitled to
receive for programming a new Subscriber's Equipment. Dealer may not charge a
new Subscriber for the initial programming of its Equipment.
5.2. Only Qualified Personnel Shall Program and Repair Equipment. Only
personnel who possess the requisite training and equipment (as may be specified
from time to time in rules, policies, or procedures reasonably adopted by
Company) may provide Equipment Services and programming for Equipment that is
activated on the Service.
5.3. Referral to Company Authorized Service Centers. To the extent that
Dealer is not qualified to furnish the Equipment Services required by a
Subscriber, Dealer shall inform Subscribers of the locations of Company's
authorized and approved service centers.
6. COMMISSIONS ON SUBSCRIBER ACTIVATIONS
6.1. Applicability. Subject to the Dealer Program Rules and other
limitations in this Agreement, Dealer shall be entitled to commissions for each
activation of a new Subscriber on a Company authorized rate plan with respect to
which Dealer is specifically authorized to solicit potential Subscribers,
provided that: (i) the activation resulted from an application for Service from
a potential Subscriber that Dealer solicited which was accepted by Company; (ii)
Service is activated during the term of this Agreement; (iii) Dealer programs
the new Subscriber's Equipment as provided in Clause 5.1; (iv) Dealer follows
Company's activation procedures as specified from time to time; and (v) the
Subscriber remains active for the minimum time necessary for Dealer to earn a
commission, if any, as stated in the Dealer Program Rules.
6.2. Activations Obtained by Dealer. Dealer shall be entitled to
commissions only for activations which were obtained solely by Dealer or its
Dealer Personnel. Dealer shall not be entitled to any commission for activations
procured on applications submitted by other dealers of Company, or by Company
itself, or by Company's affiliates.
6.3. Commission Rates, Payment and Modification. The Dealer Program
Rules will specify the rates of commission payable to Dealer by Company, and may
set forth provisions with respect to related matters, such as the timing of the
payment of such commissions, the length of time a Subscriber is required to
remain on Service for Dealer to earn a commission, specifications of authorized
rate plans and other rules relating to the forfeiture or crediting of
commissions.
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6.4. Commissions Are Total Compensation of Dealer. The commissions set
forth in the Dealer Program Rules shall be the total compensation payable to
Dealer by Company for any and all services provided by Dealer to Company.
6.5. Company's Right to Offset. Company shall have the right, at any
time, to offset against commissions owed to Dealer any amounts owed by Dealer to
Company or its affiliates pursuant to this Agreement, or otherwise, including
without limitation, any costs, expenses, losses and damages incurred by Company
and indemnified by Dealer under Clause 18.2.
6.6. Disputes between Dealers and Others. In the event that there is a
dispute between Dealer and another dealer of Company or any third party relating
in any way to any payment alleged to be due Dealer from Company (including the
amount, allocation or accrual of any such payment), Company may, at its sole
option, withhold payment until the parties mutually resolve the dispute or until
the matter is resolved by final order of a court or arbitral tribunal. Company
shall not be under any obligation to accrue interest on the disputed amount.
6.7. Dealer's Obligation to Obtain Confidentiality and Non-Competition
Agreements; Effect on Commissions. In order to receive compensation as to any
Subscriber whose Activation resulted from a request for Service solicited by any
Dealer Personnel, Dealer must have obtained and delivered to Company a duplicate
original of the Confidentiality and Non-Competition Agreement between Dealer
and such Dealer Personnel duly executed by each of them, and approved by
Company, as required by Clause 2.3. In the event any compensation is paid to
Dealer by Company for an Activation resulting from a request for Service
solicited by any Dealer Personnel, and Dealer has not complied with the
foregoing sentence, then Dealer shall, upon demand, repay all such amounts to
Company. Pending such repayment, Company shall be entitled to offset any such
amounts to be repaid against any amounts otherwise owed to Dealer by Company.
7. TRAINING AND CERTIFICATION OF DEALER PERSONNEL
7.1. Requirement to Attend Training. In order to provide the highest
quality service, all Dealer Personnel who obtain applications from potential
Subscribers or who provide programming or Equipment Service shall attend
training courses at reasonable times and locations to be established by Company.
Such training shall be provided by Company at no charge to Dealer or its Dealer
Personnel; provided, however, that any incidental costs (including but not
limited to travel and living expenses) incurred by Dealer or its Dealer
Personnel shall be the sole responsibility of Dealer.
7.2. Certification Program. Should Company determine that a
certification program is required to enhance or maintain the quality of its
Service, then Company shall certify Dealer Personnel individually upon Company
receiving evidence, reasonably acceptable to Company, that each has acquired
current training and skills deemed sufficient by Company. Thereafter, Dealer
shall allow only Dealer Personnel who are certified by Company to engage in
obtaining applications for Service, demonstrating Service, leasing Equipment,
programming Equipment, and Equipment Service. Company may at any time deny or
terminate the certification of any Dealer Personnel who fail to attend or
complete any training course or who otherwise demon-
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strate that they are not qualified to be or remain certified by Company.
Certification does not relieve Dealer of responsibility for Dealer Personnel
conduct as contemplated in Clause 2.3.
8. TRADEMARKS, SERVICE MARKS AND TRADE NAMES
8.1. Exclusive Property of Company. All trademarks, service marks and
trade names of Company ("Names"), including, without limitation, the name
"CELLULAR ONE/registered trademark/," are the exclusive property of Company or
Company's licensors, and Dealer shall not use such Names without the specific
prior written approval of Company. Dealer shall comply with all rules and
procedures pertaining to such Names prescribed by Company or Company's licensors
from time to time.
8.2. Authorization for Use Is Required. Without limiting the generality
of Clause 8.1 above, all signage, brochures, sales documents, print, radio, or
television advertising, stationery, or any other publication or use by Dealer
that contains any Name of Company or Company's licensors must be approved in
advance by Company.
8.3. Unauthorized Use Is Infringement. Any unauthorized use of Names by
Dealer, or by any Dealer Personnel, or any use thereof that is not in compliance
with any rules and procedures prescribed by Company, shall be an infringement of
the rights of Company and of Company's licensors and shall constitute a material
breach of this Agreement. Such use may be restrained by Company's licensors, if
one or more of the licensors' Names is infringed, and by Company if either a
Company or a licensor Name is infringed.
8.4. No Rights in or to Names. Dealer acknowledges that it has no rights
to the Names except as provided herein, and shall not acquire any such rights or
an expectancy to their use during the term of this Agreement, and that Company
may discontinue the use of any Name during the term of this Agreement, or
discontinue licensing any Name, and that Dealer shall have no right to require
Company to continue to use or license any Name.
8.5. Termination of Use. Upon the termination of this Agreement, Dealer
shall immediately discontinue any use of Company's Names, and the Names of
Company's licensors, including any use of the name "CELLULAR ONE/registered
trademark/."
9. CO-OP ADVERTISING AND DEALER AIRTIME PROGRAMS
9.1. Co-Op Advertising. If specified in the Dealer Program Rules or any
Cooperative Advertising Guidelines, Company may maintain a cooperative
advertising account for purposes of partially reimbursing Dealer for cooperative
advertising approved in advance by Company. Such account would pertain only to
advertisements promoting Service. No interest will be paid on credits posted to
this account, and any amounts remaining in the account upon termination of the
Agreement shall be forfeited. Company has no obligation to establish or maintain
any cooperative advertising program, and may cancel any program it may establish
during the term hereof, or may have at the beginning of the term hereof, without
liability to Dealer.
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9.2. Dealer Responsibility to Pay for Advertising. Dealer shall pay, and
will be responsible for paying, all third parties for all expenses of any
advertising that it purchases.
9.3. Dealer Airtime Program. A Dealer Airtime Program providing Service
in the Area to Dealer so that Dealer may demonstrate Service to potential
Subscribers may be made available at the discretion of Company, and will be
governed by separate Dealer Airtime Guidelines. Company has no obligation to
establish or maintain any Dealer Airtime Program, and may cancel any program it
may establish during the term hereof, or may have at the beginning of the term
hereof, without liability to Dealer.
10. RELATIONSHIP OF COMPANY AND DEALER
10.1. General Description. Company and Dealer acknowledge and agree that
the relationship arising from this Agreement does not constitute or create a
general agency, joint venture, partnership, employment relationship, or
franchise between them. Dealer is a limited agent of Company with only the
authority specified in this Agreement or arising by necessary implication.
Except as otherwise provided in this Agreement or by other requirements, rules,
policies and procedures referred to in this Agreement, Dealer shall operate
Dealer's business as Dealer sees fit. Neither Dealer nor any Dealer Personnel
shall be deemed an employee of Company for any purpose.
10.2. Dealer Supervision of Its Personnel. Subject to the provisions of
Clause 2.3 and Section 7 of this Agreement, Dealer may hire and engage Dealer
Personnel as Dealer deems necessary or desirable. Dealer shall exercise the sole
and exclusive control and supervision of such personnel.
10.3. Other Dealer Business Activities. Dealer shall be free to engage in
such other business activities as Dealer may desire to pursue, as long as such
other business activities do not interfere or conflict with any of Dealer's
duties or obligations under this Agreement.
10.4. Dealer Responsible for Own Costs. Dealer will be responsible for
the costs and expenses of conducting and operating Dealer's business. Company
shall not make any deductions, withholdings, or contributions with respect to
Dealer on account of social security, industrial insurance, unemployment
compensation, income tax or otherwise, under any federal, state or local law
applicable to the relationship of employer and employee.
10.5. Limitation of Dealer Authority. Except for the limited purposes
expressly set forth herein or except as expressly directed by Company in
writing, Dealer (i) is in no way the legal representative or agent of Company
for any purpose whatsoever, (ii) has no right or authority to assume or create
any obligation of any kind, express or implied, on behalf of Company, (iii) has
no right to make any representation or warranty on behalf of Company regarding
Service, Equipment Service, or Equipment leased or sold by Dealer as agent for
Company, and (iv) has no right to make any representations or warranties on
behalf of Company concerning Equipment sold by Company to Dealer, if any, except
that Dealer may inform customers of warranties issued in writing by the
manufacturers of such Equipment.
-12-
10.6. Variance of Company's Terms and Conditions by Dealer. Dealer shall
not vary orally or in writing any terms or conditions appearing on any forms
used by Company relating to Service, Equipment Service, or Equipment.
11. DEFAULT BY DEALER OR COMPANY
11.1. Events of Default by Dealer. Each of the following events and
occurrences is hereby defined as, and shall constitute, a "default" of this
Agreement by Dealer:
(a) any breach by Dealer of this Agreement not covered by Clause
11.1(e) below;
(b) the commission of any illegal act (excluding misdemeanor
traffic offenses and other minor misdemeanors not involving dishonesty or
moral turpitude) by, or the filing of any criminal indictment or
information against, Dealer, any person directly or indirectly owning or
controlling ten percent or more of the ownership interest in Dealer, or
any partners or executives of Dealer;
(c) Dealer ceasing to function as a going concern; or ceasing to
conduct its activities pursuant to this Agreement in the normal course of
business; or otherwise experiencing a material deterioration in its
financial condition such that, in Company's reasonable business judgment,
Dealer's ability to perform the terms of this Agreement is threatened; or
becoming insolvent; or becoming the subject of a petition in bankruptcy;
or having a receiver appointed for its business; or entering into any
arrangement with, or assignment for the benefit of, creditors;
(d) Dealer or its related companies defaulting under any other
material agreement between Dealer or any of its related companies, on the
one hand, and Company or any other entity owned or controlled, directly
or indirectly, by XxXxx Cellular Communications, Inc., or any successor
to it, on the other hand, so that Company or its related companies has
the present right to terminate such other agreement for default; and
(e) any failure by Dealer to pay Company any amount of money when
due that Dealer does not fully cure within fifteen (15) days after
Company sends Dealer a written notice of the non-payment.
11.2. Events of Default by Company. Each of the following events and
occurrences is hereby defined as, and shall constitute, a "default" of this
Agreement by Company:
(a) any breach by Company of this Agreement not covered by Clause
11.2(d) below;
(b) Company ceasing to function as a going concern; or ceasing to
conduct its activities pursuant to this Agreement in the normal course of
business; or becoming insolvent; or becoming the subject of a petition in
bankruptcy; or having a receiver appointed for its business; or entering
into any arrangement with, or assignment for the benefit of, creditors;
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(c) Company or its related companies defaulting under any other
material agreement between Dealer or any of its related companies, on the
one hand, and Company or any other entity owned or controlled, directly
or indirectly, by XxXxx Cellular Communications, Inc., or any successor
of it, on the other hand, so that Dealer or its related companies has the
present right to terminate such other Agreement for default; and
(d) any failure by Company to pay Dealer any amount of money when
due that Company does not fully cure within fifteen (15) days after
Dealer sends Company a written notice of the non-payment.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement shall commence as of the date
first above written and shall continue until terminated as provided herein.
12.2 Ninety-Day Termination. This Agreement may be terminated by either
party without cause (as defined in Clause 12.3 below) upon 90 days' written
notice; provided that Company may not terminate this Agreement without cause
prior to January 1, 1997.
12.3 Termination for Cause. This Agreement may be terminated by either
party for cause immediately upon written notice of termination; provided,
however, that if a default, other than default arising under Clause 11.1(e) or
11.2(d), is capable of being cured within 30 days, then the defaulting party
shall have 30 days from the date notice is given in which to cure the default.
If the default is not cured by the end of the 30 day period, then termination
will be effective without further notice. Cause for termination hereunder shall
be limited to any default as defined in Clause 11.1 or 11.2 above. Defaults
which are not "capable of being cured" shall include, without limitation, all
defaults based on fraud or other actions undertaken in bad faith.
12.4. Dealer's Right to Terminate Due to Change in Dealer Program Rules.
In addition, Dealer may terminate this Agreement upon or following any material
adverse change in commissions under the Dealer Program Rules, provided Dealer
must give Company written notice of such termination at least fifteen (15) days
prior to the effective date of Company's proposed reduction. However, if Company
rescinds the change within twenty (20) days after receiving such notice or such
lesser time as may remain prior to the effective date of the change, this
Agreement will not terminate but shall continue in full force and effect.
12.5. Expiration, Revocation or Transfer of Licenses. If any license
Company requires in order to operate in any portion of the Area expires or is
revoked, this Agreement shall terminate with respect to the portion of the Area
subject to such license. If a required license for any portion of the Area is
transferred by Company to an unaffiliated third party, then Company shall have
the option with respect to such portion of the Area of either terminating this
Agreement, assigning this Agreement to the license transferee, or continuing
this Agreement through the offering of some reasonable substitute for Service.
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13. OBLIGATIONS FOLLOWING TERMINATION
13.1. Surviving Obligations upon Termination. Upon the termination of
this Agreement, all the rights and obligations of the parties hereunder shall
cease without further liability, effective as of the date of termination, except
that the following shall survive:
(a) Dealer's obligations under Clauses 2.2 (to the extent records
were not previously delivered to Company), 2.3(c), 6.5, 6.7, 13.2, 13.3,
and Sections 8, 14, 15, 16, and 18 of this Agreement;
(b) any claims arising out of acts or omissions which occurred
prior to the termination of this Agreement; and
(c) Company's right to recover commissions paid for activations of
Subscribers who discontinue purchasing Service under circumstances which
would have provided Company a right to charge back commissions had the
Agreement not been terminated.
The parties shall cooperate with each other to fulfill any surviving obligations
expeditiously, and the provisions of Section 19 shall continue to apply to any
matters arising subsequent to the termination of this Agreement.
13.2. Post-Termination Reserve.
(a) Following any termination of this Agreement, whether voluntary
or involuntary, and whether with or without cause, Company may withhold
from payment to Dealer any monetary obligation that has accrued prior to
the date of termination or that accrues prior to the end of the calendar
month in which termination occurs, as a reserve to secure Company
against any amounts that Dealer may be or become obligated to reimburse
to Company. The balance of this reserve shall be paid to Dealer within
30 days after the date on which it can be determined that no commissions
previously paid to Dealer remain subject to being charged back pursuant
to the Dealer Program Rules due to the possible suspension or
cancellation of any Subscriber's Service. If at the end of any calendar
month the reserve exceeds the maximum amount which Dealer could
potentially be charged back, then Company shall, upon request by Dealer,
pay over the excess within 30 days.
(b) If Company notifies Dealer of a default which may become the
basis for termination, Company may withhold a reserve as if termination
had occurred on the date such notice was given. If it is determined that
there was no default, Company shall then pay any amounts withheld but
then due plus interest at the rate imposed on unpaid judgments by law
from the date payment would have been due if not withheld until the date
of payment.
13.3. Dealer to Cease to Hold Itself Out as a Dealer Post-Termination.
Following termination of this Agreement, Dealer shall immediately cease to
represent itself in any fashion as a dealer or representative of Company.
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14. CONFIDENTIAL INFORMATION
14.1. "Confidential Information" means all non-public information
provided by Company to Dealer before or after the date of this Agreement, or
otherwise gained by Dealer in any way in the course of Dealer's relationship
with Company, including, without limitation, Company's technical data; trade
secrets; non-public prices and sales volumes; the identity of and all
information concerning present, past and potential Subscribers; Subscriber lists
and records; business and marketing plans and dealer programs for Service; the
contractual terms between Company and its Subscribers and Dealers; Company's
regulatory applications and plans; and Company's technical and marketing data
relating to Service. All Confidential Information is the exclusive property of
Company, even if it was gained or developed by the Dealer as a result of or in
the course of Dealer's relationship with Company.
14.2. Agreement Establishes Confidential Relationship. Dealer
acknowledges that this Agreement establishes a confidential relationship between
it and Company. As a result thereof, Company will disclose to Dealer, and permit
Dealer to develop independently for the benefit of Company, certain Confidential
Information in connection with its operations under this Agreement. Dealer shall
therefore:
(a) Use of Confidential Information. Use the Confidential
Information only as permitted under this Agreement during the term hereof
and not at all thereafter, except as expressly permitted to do so in
writing signed by a Vice President of Company;
(b) Limited Disclosure. Disclose such Confidential Information only
to such persons as are directly connected with the performance of
Dealer's obligations requiring knowledge of Confidential Information (who
shall therefore be deemed "Dealer Personnel" under Clause 2.3) and
disclose only such information as is required to enable them to carry out
their assigned duties;
(c) Confidentiality Obligation. Advise Dealer Personnel of the
confidential nature of the Confidential Information and the obligation
not to disclose it and obtain from Dealer Personnel and deliver to
Company signed Confidentiality and Non-Competition Agreements as
required by Clause 2.3.
(d) Maintaining Confidential Information. Treat and maintain, and
cause all Dealer Personnel to treat and maintain the Confidential
Information as confidential during and after the term of this Agreement,
not disclosing any Confidential Information to any person, firm,
corporation, or other entity at any time.
14.3. Obligations on Termination. Upon termination of this Agreement,
Dealer shall promptly deliver to Company all materials, including but not
limited to written documents, audio and video tapes, computer diskettes, and
other magnetic, optical or other storage media, containing Confidential
Information. Dealer shall also erase all Confidential Information from its
computer hard drives or other storage media which cannot reasonably be
transferred, and shall provide Company, within ten days of the termination, with
a written certification that it has either destroyed or delivered to Company all
copies of any Confidential Information previously in its possession.
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14.4. Material Consideration for Agreement. Dealer's agreement to comply
with the provisions of this Section 14 is a material consideration to Company's
entering into this Agreement and appointing Dealer as its agent hereunder.
Moreover, Dealer expressly recognizes that Company would be irreparably damaged
if Dealer disclosed any Confidential Information to any third-party.
Accordingly, upon any violation of this Section by Dealer or any Dealer
Personnel, Company shall be entitled to (i) damages upon proof of same, (ii) an
injunction enjoining Dealer or such Dealer Personnel from further violation of
this Agreement, and (iii) any other relief permitted by law. The waiver of
consequential damages in Clause 18.5 shall not limit recovery hereunder.
14.5. Information in Public Domain. Confidential Information shall not
include, and the foregoing provisions shall not apply to, any information that
(i) at the time of disclosure by Company to Dealer or development by or for
Dealer, was a part of the public domain; or (ii) after the time of disclosure by
Company to Dealer or development by or for Dealer, became a part of the public
domain through publication or communication by persons other than Dealer or any
Dealer Personnel or persons who obtained the information directly or indirectly,
whether with or without permission, from Dealer or any Dealer Personnel.
14.6 Customer Lists. The parties acknowledge that the sale of cellular
equipment is, in most cases, merely incident to the transaction in which a
person obtains cellular service. Therefore, all information about the people who
purchased cellular equipment from Dealer will be considered Confidential
Information hereunder. However, if less than 10% of a customer list maintained
in the ordinary course of business by Dealer consists of purchasers of cellular
phones from Dealer or Subscribers for Service who were obtained for Company by
Dealer, Dealer may sell or disclose the list so long as it does not facilitate
identification of the purchasers.
14.7. Information of Company's Affiliates. For purposes of this Section
14, "Company" shall be deemed to include Company and all of its affiliates,
whether or not parties to this Agreement.
15. NONDIVERSION OF SUBSCRIBERS
15.1. Dealer Shall Not Divert Subscribers. During the term of this
Agreement, and for one year after its termination (whether voluntary or
involuntary), Dealer, its owners, Dealer Personnel, and affiliates of any of
them shall not at any time (i) request any Subscriber of Company in the Area who
Dealer knows to be a Subscriber of Company to curtail or cancel its business
with Company; or (ii) otherwise solicit, divert or attempt to divert any such
Subscriber from patronizing Company's Service. During the one year period after
termination of this Agreement, any Subscribers of Company who contact Dealer,
whether with respect to existing Service or potential additional Service, shall
be referred directly to Company.
15.2. Continuation of Confidentiality. No inference shall be drawn from
this Section 15 to the effect that Confidential Information may be used at any
time, whether or not within one year of termination of this Agreement, in
violation of Section 14.
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15.3. Subscribers Are Customers of Company. Dealer acknowledges that
Dealer and Company have entered into this Agreement on the premise that all
Subscribers to Company's Service will be customers of Company and not of Dealer
and that Dealer will have been fully compensated for procuring such Subscribers
by the commissions payable hereunder. Dealer further acknowledges that its
willingness to provide Company with the protections set forth in Clause 15.1 has
been a material consideration of Company in entering into this Agreement and
that Company would not have entered into this Agreement but for such agreement
by Dealer. The waiver of consequential damages in Clause 18.5 shall not limit
recovery hereunder.
16. NON-COMPETITION
16.1. Covenant Not to Compete. Dealer acknowledges that it would be
unfair and detrimental to the business of Company and its affiliates if Dealer
were to act on behalf of a competitor of Company or of its affiliates in any
area within the State of Florida in which Company or its affiliates provide
Service in light of the coordinated operations of the Florida Region affiliates
of XxXxx Cellular Communications, Inc. and Dealer's access to Confidential
Information about Company and its affiliates which is relevant to their
operations statewide. Therefore, Dealer covenants and agrees that, until
termination of this Agreement (whether voluntary or involuntary), and for a
period of six months thereafter, Dealer and its owners (including partners and
shareholders), officers and affiliates shall not, directly or indirectly:
(a) compete with Company or its affiliates within the Area by
offering, providing, marketing, or procuring or referring customers for a
provider other than Company (the term "provider" shall include any
reseller of Company or any other provider) of any cellular telephone
service, enhanced specialized mobile radio service, personal
communication services, or similar radiotelephone service (other than any
messaging, wireless data service, or radio dispatch service which cannot
be used for two-way voice communication between unaffiliated users); or
(b) act or serve as an owner, partner, shareholder, employee,
agent, contractor, or consultant of any person or entity other than
Company who, directly or indirectly, within the Area, offers, provides,
markets, or procures or refers customers for any cellular telephone
service, enhanced specialized mobile radio service, personal
communications services, or similar radiotelephone service (other than
any messaging, wireless data service, or radio dispatch service which
cannot be used for two-way voice communication between unaffiliated
users).
16.2. Elimination of Non-Competition Period. Dealer shall not be bound by
the provisions of Clause 16.1 under any of the following circumstances:
(a) Company terminates this Agreement without cause pursuant to
Clause 12.2;
(b) Dealer terminates this Agreement pursuant to Clause 12.3, and
Company does not dispute the grounds for termination in good faith;
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(c) Dealer terminates this Agreement pursuant to Clause 12.4,
provided that (i) Dealer notifies Company of Dealer's intent to compete
at least 90 days prior to the date Dealer actually begins competing;
(ii) if Dealer intends to compete within 45 days after the effective
date of the termination, Dealer may not advertise Equipment or Service
for 45 days prior to such competing; and (iii) Company does not dispute
the grounds for termination in good faith; or
(d) this Agreement terminates pursuant to Clause 12.5.
16.3. Covenant Is Ancillary and Necessary. The parties acknowledge that
(i) by being appointed a dealer by Company, Dealer will obtain significant,
competitive information that would give Dealer an unfair competitive advantage
if Dealer were to compete without restriction with Company during the term
hereof by becoming a dealer for any competing communications service in the Area
or a reseller of any competing communications service in the Area, or after
termination of this Agreement by becoming a dealer or reseller of any competing
communications service in the Area, and (ii) the covenants and agreements in
Section 16 are necessary and reasonably ancillary to the establishment of the
dealer relationship provided in this Agreement. The waiver of consequential
damages in Clause 18.5 shall not limit recovery hereunder.
16.4. Construction of Covenants by Courts. To the extent a court of
competent jurisdiction determines the covenants in Section 16 to be
unenforceable as written, Dealer and Company authorize such court to construe
and interpret these covenants not to compete in the broadest possible way to
provide Company and its affiliates with reasonable protections against
competition from the Dealer.
17. FINANCIAL DATA
17.1. Dealer Warranty of Dealer Financial Data. Dealer warrants and
represents to Company that any and all financial information concerning Dealer
that has been provided to Company by Dealer does not contain any false or
misleading information or omit any material information and accurately
represents the financial condition of Dealer.
17.2. Dealer's Duty to Update Financial Data. Upon request by Company,
Dealer shall quarterly, or more frequently if requested by Company, provide or
update its financial information (including a balance sheet and income
statement), and provide other financial data reasonably requested by Company.
18. DISPUTES AND CLAIMS
18.1 Notice of Disputes and Waiver of Claims. Notice of any claim or
dispute by Dealer or Company relating to the calculation of commissions or
co-operative advertising credits for any given month shall be submitted in
writing within ninety (90) days after Company delivers its initial calculations
for that month. Company's initial calculations shall be conclusive if such
written notice is not given, and failure to provide such notice shall be deemed
a waiver of any claim or dispute with regard to the amounts due for that month.
This
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provision shall not bar claims arising out of fraudulent conduct or actions
undertaken in bad faith. This provision shall not be construed as a shortening
of the applicable statute of limitations, but rather as a pre-condition to the
assertion of a claim. This provision is intended to give the parties ample
opportunity to present their claims while not requiring the other party to
maintain voluminous documents and records for a prolonged period.
18.2 Indemnification. Each party (the "Indemnitor") shall protect,
defend, hold harmless and indemnify the other party, including such party's
parents, subsidiaries, affiliates, licensors and their former, current, and
future officers, directors, employees, agents, successors and assigns (the
"Indemnitee"), from and against any damages, punitive damages, losses,
liabilities, claims, and costs (as "costs" are defined in Clause 18.4), arising
in any way out of or relating to any breach of this Agreement by the Indemnitor,
any conduct of Indemnitor, or contract to which Indemnitor is or was a party
(collectively, "Claims"). Claims shall include, but not be limited, to claims
for breach of contract, tortious interference with contractual relations,
tortious interference with prospective economic advantage, and any other
tortious or illegal conduct; provided, however, that the obligation to defend,
indemnify and hold harmless shall not apply to the extent Claims result from the
other party's negligence or willful misconduct.
Within ten days after being notified of the existence of any Claim to
which these indemnification obligations may apply, the party receiving such
notice shall notify the party from whom the indemnification is sought, and shall
give reasonable opportunity to the Indemnitor to defend the Claim at its own
expense and with counsel of its own selection; provided, however, that the party
seeking indemnification shall at all times have the right to fully participate
at its own expense in the defense of a Claim. Further, Company shall have the
right to approve the selection of counsel by Dealer and any settlement of a
Claim, which approvals shall not be unreasonably withheld. Failure to provide
timely notice shall operate only to limit rights hereunder to the extent the
party entitled to receive notice is prejudiced.
If the Indemnitor shall, within 30 days after notice, fail to accept
defense of the Claim, then the party seeking indemnification shall have the
right, but not the obligation, to undertake the defense of, and to compromise or
settle (exercising reasonable business judgment), the Claim on behalf, for the
account, and at the risk of the Indemnitor. If the Claims cannot by their nature
be defended solely by one party, the other party shall make available all
information and assistance that may reasonably be requested, regardless of any
obligations to indemnify hereunder. The waiver of consequential damages in
Clause 18.5 of this Agreement shall not limit recovery hereunder.
18.3 Court Proceedings. The parties hereby consent to the sole and
exclusive jurisdiction and venue of the State and federal courts located in Palm
Beach County, Florida, for all disputes arising hereunder. Dealer acknowledges
that irreparable damage would result from a breach of Sections 8, 14, 15, or 16
and that, in the event of such breach, Company will be entitled to an injunction
restraining any threatened or continuing breach, without being required to show
any actual damage or to post a bond. If a bond is required by statute or rule,
the amount of the bond shall be the lowest amount permissible.
18.4 Attorneys' Fees. If a court action is commenced by one party against
the other, the substantially prevailing party shall be entitled to recover its
reasonable costs incurred
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therein, including any appeals. For the purposes of this Clause 18.4 and Clause
18.2, the term "costs" shall include, without limitation, attorneys' fees,
paralegal fees, investigative fees, expert witness fees, administrative costs,
and any other charges billed by the attorney to the prevailing party, and the
cost of efforts of in-house legal staff which shall be valued at market rates
for comparable services from private practitioners.
18.5 Waiver of Consequential Damages. EXCEPT AS OTHERWISE PROVIDED IN
THIS AGREEMENT, EACH PARTY HEREBY WAIVES ANY RIGHT TO CONSEQUENTIAL DAMAGES.
19. MISCELLANEOUS
19.1 Notices.
(a) All notices required hereunder shall be given, made or served
when deposited in the U.S. Mail, registered or certified, return receipt
requested, postage prepaid, to the respective parties to this Agreement.
Notice may also be given by facsimile, with a confirming copy sent by
mail, as set forth above. Notice is to be sent to the address of the
respective parties as indicated on the first page of this Agreement.
Notices to Company must also be sent by facsimile, with a confirming copy
sent by mail, as set forth above, to: Cellular Xxx Xxxxx Xxxxxxxxxx,
X.X. Xxx 00000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000, facsimile no. (407)
655-7492. Notice given in any other fashion shall be invalid unless
acknowledged in writing by a duly authorized representative of the party
receiving the notice.
(b) The designation of the person to be so notified or the address
of such person for the purposes of such notice may be changed from time
to time by similar notice in writing, except that any communication with
respect to a change of address shall be deemed to be given or made when
received by the party to whom such communication was sent.
(c) Notwithstanding the foregoing, Company may advise Dealer of
changes in Company's general policies and procedures by first-class mail,
electronic facsimile or by in-hand delivery, and such communication shall
be effective upon receipt.
19.2. No Waiver. No failure or delay on the part of Company in exercising
any right, power or privilege under this Agreement or under the Dealer Program
Rules, and no course of dealing between Dealer and Company, shall be deemed a
waiver of any further exercise of any right, power or privilege. The rights and
remedies herein expressly provided are cumulative and not exclusive of any
rights or remedies which Company would otherwise have.
19.3. Ambiguities. Any ambiguity in this Agreement shall be resolved by
reference first to generally accepted practice, if any, between Company and its
dealers or, if there is none, by Company acting in good faith. This Agreement
shall not be construed against the drafting party. No inference shall arise from
the failure to negate expressly the possibility of an inference, notwithstanding
that certain statements may be made herein to the effect that something is not
to be implied.
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19.4. Construction of Agreement.
(a) Entire Agreement. This Agreement and the Termination and
Release Agreement of even date herewith represent the entire agreement
between the parties with respect to the matters addressed in this
Agreement and, except as expressly provided herein, shall not be modified
by any other agreements, representations, or understandings, whether oral
or in writing. All prior agency agreements between the parties are hereby
superseded, except that any covenants relating to confidentiality,
business record retention, and other post-termination covenants of prior
agreements shall survive.
(b) The Company. This Agreement shall be construed as a separate
contract with each of the entities listed on Schedule 1 and any
additional entity that provides Service pursuant to this Agreement in the
future. If any such entities cease to be affiliated with XxXxx Cellular
Communications, Inc. or its successors in interest, this Agreement may
thereafter be terminated by such entities upon 30 days written notice
(which notice may be given prior to disaffiliation).
19.5. Amendments. Neither this Agreement nor any provision hereof may be
changed, waived, discharged, or terminated orally, but such may be accomplished
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought.
19.6. Benefit of Agreement; Prohibited Assignments. This Agreement shall
be binding upon and inure to the benefit of Dealer and Company and their
successors and assigns. Dealer expressly acknowledges that Company is not
prohibited or restricted from assigning its rights or obligations hereunder, or
any portion thereof, to another party or parties affiliated with Company.
Dealer, however, is precluded from assigning all or any of its rights or
delegating any of its obligations hereunder or under any of the other agreements
between Dealer and Company without the prior written consent of Company, which
may be withheld at Company's sole discretion. Such prohibition shall extend to a
change in the control of Dealer, which for the purposes of this Agreement, shall
be defined as any change by which any person or entity acquires 50% or more of
the voting power, interest in income or dividends, or assets of Dealer, or where
any person, by contract or otherwise, obtains the right to control Dealer or its
business.
19.7. Severability. If any provision of this Agreement is held invalid
under any applicable laws, such invalidity shall not affect any other provision
of this Agreement that can be given an effect without the invalid provision,
and, to this end, the provisions hereof are severable.
19.8. Sections and Clauses. The term "Clause" or "Clauses" refers to the
individual paragraphs within each section of this Agreement. For example, this
paragraph is Clause 19.8 within Section 19 of this Agreement.
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19.9 Descriptive Headings. The descriptive headings of the Sections and
Clauses of this Agreement, the Table of Contents, the Glossary, and the
Executive Description of the Agreement, if any, are for convenience only and
shall not affect the meaning or construction of any of the provisions hereof.
19.10. Confidentiality Agreement of Terms. Dealer agrees that all
information regarding commissions or other consideration paid Dealer hereunder
are to be kept strictly confidential between Dealer and Company, except as
otherwise consented to in writing by Company, or as required by Court Order, and
that any breach of this Confidentiality provision shall entitle Company to
terminate this Agreement with cause under Clause 12.3.
19.11. Authority. Each person signing below hereby warrants and
represents that (s)he has full authority to execute this Agreement for the party
on whose behalf (s)he is signing.
19.12. No Interlineation. No interlineation of, including additions to or
deletions of, the standard terms and conditions of this form of Agreement
prepared by Company shall be valid and effective unless authorized in writing by
a Vice President of Company.
20. INDEPENDENT INVESTIGATION
COMPANY AND DEALER ACKNOWLEDGE THEY HAVE READ THIS AGREEMENT AND
UNDERSTAND AND ACCEPT THE TERMS, CONDITIONS AND COVENANTS CONTAINED HEREIN AS
BEING REASONABLY NECESSARY TO MAINTAIN COMPANY'S HIGH STANDARDS FOR SERVICE.
DEALER ACKNOWLEDGES AND UNDERSTANDS THAT COMPANY MAY AT ANY TIME ALSO BE ENGAGED
DIRECTLY OR INDIRECTLY THROUGH OTHER DEALERS, RETAILERS, OR OTHERWISE, IN
SOLICITING POTENTIAL SUBSCRIBERS FOR SERVICE OR FOR THE SALE, LEASE,
INSTALLATION, REPAIR, OR SERVICING OF EQUIPMENT IN THE AREA, ON THE SAME OR
DIFFERENT TERMS AS THOSE PROVIDED TO DEALER. DEALER ALSO ACKNOWLEDGES AND
UNDERSTANDS THAT COMPANY MAY SELL SERVICE TO OTHERS WHO MAY RESELL IT. DEALER
HAS INDEPENDENTLY INVESTIGATED THE CELLULAR SERVICE OR EQUIPMENT SALE/LEASING
BUSINESS AND THE PROFITABILITY (IF ANY) AND RISKS THEREOF AND IS NOT RELYING ON
ANY REPRESENTATlON, GUARANTEE, OR STATEMENT OF COMPANY OTHER THAN AS SET FORTH
HEREIN.
IN PARTICULAR, DEALER ACKNOWLEDGES THAT COMPANY HAS NOT REPRESENTED: (A)
DEALER'S PROSPECTS OR CHANCES FOR SUCCESS SELLING SERVICES UNDER THIS AGREEMENT;
(B) THE TOTAL INVESTMENT THAT DEALER MAY NEED TO MAKE TO OPERATE UNDER THIS
AGREEMENT (COMPANY DOES NOT KNOW THE AMOUNT OF THE TOTAL INVESTMENT THAT MAY BE
REQUIRED FOR THIS PURPOSE); OR (C) THAT IT WILL LIMIT ITS EFFORTS TO SELL
SERVICE OR ESTABLISH OTHER DEALERS IN THE AREA.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers as of the day and year first above written.
SOUND ADVICE, INC. XxXXX COMMUNICATIONS
OF FLORIDA, INC.
on behalf of itself and its Florida Region
Affiliates as described above
By: /s/ XXXXX XXXXXXXX By: /s/ XXXXXX XXXXXX
-------------------- ------------------
Name: Xxxxx Xxxxxxxx Xxxxxx Xxxxxx
Title: President Vice President
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AMENDMENT TO DEALER AGREEMENT
This Amendment is executed simultaneously with the Dealer Agreement
(the "Agreement") dated January 1, 1995, between XxXxx Communications of
Florida, Inc., and its Florida Region affiliates (collectively, "Company"), and
Sound Advice, Inc. ("Dealer"). Pursuant to this Amendment, the parties agree as
follows:
1. The first sentence of Clause 2.3(b) (Approval of Dealer Personnel) of the
Agreement is modified to read as follows:
Before hiring anyone, or allowing anyone to act, as Dealer
Personnel, Dealer agrees to inquire of that person whether (s)he
has any prior experience in the wireless communications industry.
The remainder of Clause 2.3(b) remains unchanged.
2. Clause 2.3(e) (Confidentiality and Non-Competition Agreements) of the
Agreement is modified to read as follows:
Dealer shall cause each Dealer Personnel to enter into a
Confidentiality and Non-Competition Agreement in a form
satisfactory to Company, a copy of which shall be delivered to
Company within 30 days after the commencement of the Dealer
Personnel relationship. A currently acceptable form is attached as
Exhibit B.
3. Clause 2.4(a) is deleted.
4. The last sentence of Clause 2.7 (Store Front Location; Advertising
Restricted to Area) of the Agreement is modified to read as follows:
Notwithstanding the foregoing, if Dealer will be primarily engaged
in the sale of a broad range of consumer products from one or more
retail outlets and Dealer gives Company reasonable advance notice
of the establishment of the new
outlet, Company will not object to the solicitation of potential
Subscribers at such new location, and Company's consent otherwise
required by the foregoing shall be deemed to have been given.
The remainder of Clause 2.7 remains unchanged.
5. The second sentence of Clause 4.4 (Demonstration Equipment) of the
Agreement is modified to read as follows:
Notwithstanding Company's ownership of Demonstration Equipment,
Dealer shall bear the risk of loss or damage by any means
whatsoever (ordinary wear and tear and acts of God excepted) from
the time any such Equipment is placed in the possession of Dealer
until it is returned to Company.
The remainder of Clause 4.4 remains unchanged.
6. The following section is added to the end of Clause 6.5 (Company's Right
to Offset) of the Agreement:
Notwithstanding the foregoing, if Company plans to offset against
commissions any amount in excess of $25,000 for any reason (other
than chargebacks of commissions already paid), then Company will
notify Dealer in writing of the planned offset at least ten
business days in advance. Dealer shall then, from the date of
Company's notice, have seven days to inform Company, in writing,
whether it intends to dispute the proposed offset. If Dealer timely
gives notice of its intent to dispute the offset, then Company will
place the disputed amount in a separate bank account pending the
resolution of the dispute, and will notify Dealer of the location
and number of such account. All notices pursuant to this section
shall be given by fax and mail.
The remainder of Clause 6.5 remains unchanged.
7. The second sentence of Clause 6.7 (Dealer's Obligation to Obtain
Confidentiality and Non-Competition Agreements; Effect on Commissions) of
the Agreement is modified to read as follows:
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In the event any compensation is paid to Dealer by Company for an
Activation resulting from a request for Service solicited by any
Dealer Personnel, and Dealer has not complied with the foregoing
sentence, then Dealer shall, upon demand, repay all such amounts to
Company -- unless Dealer provides to Company such duly executed
Confidentiality and Non-Competition Agreement within ten days of
such demand.
The remainder of Clause 6.7 remains unchanged.
8. Clause 8.2 (Authorization for Use Is Required) of the Agreement is
modified to read as follows:
Without limiting the generality of Clause 8.1 above, all signage,
brochures, sales documents, print, radio, or television
advertising, stationery, or any other publication or use by Dealer
that contains any Name of Company or Company's licensors must be in
accordance with the advertising guidelines provided by Company to
Dealer.
9. The first sentence of Clause 9.1 (Co-Op Advertising) of the Agreement is
modified to read as follows:
If specified in the Dealer Program Rules or any Cooperative
Advertising Guidelines, Company may maintain a cooperative
advertising account for purposes of partially reimbursing Dealer
for cooperative advertising in accordance with such Rules or
Guidelines.
The remainder of Clause 9.1 remains unchanged.
10. Sub-section (b) of Clause 11.1 (Events of Default by Dealer) of the
Agreement is deleted. In addition, sub-section (a) of Clause 11.1 is
modified to read as follows.
(a) any material breach by Dealer of this Agreement not
covered by Clause 11.1 (e) below;
The remainder of Clause 11.1 remains unchanged.
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11. Clause 11.2 (Events of Default by Company) of the Agreement is modified in
two ways. First, sub-section (a) is modified to read as follows:
(a) any material breach by Company of this Agreement not covered
by Clause 11.2(d) below;
Second, sub-section (b) is modified to read as follows:
(b) Company ceasing to function as a going concern; or ceasing
to conduct its activities pursuant to this Agreement in the normal
course of business; or otherwise experiencing a material
deterioration in its financial condition such that, in Dealer's
reasonable business judgment, Company's ability to perform the
terms of this Agreement is threatened; or becoming insolvent; or
becoming the subject of a petition in bankruptcy; or having a
receiver appointed for its business; or entering into any
arrangement with, or assignment for the benefit of, creditors;
The remainder of Clause 11.2 remains unchanged.
12. The first sentence of Clause 12.4 (Dealer's Right to Terminate Due to
Change in Dealer Program Rules) of the Agreement is deleted and replaced
by the following two sentences:
In addition, Dealer may terminate this Agreement upon or following
any change in the Dealer Program Rules or in any Company policy or
procedure which has a material adverse effect on Dealer's
relationship with Company considered as a whole. In order to
effect a termination under this section, Dealer must give Company
written notice of such termination at least fifteen (15) days
prior to the effective date of Company's proposed change.
The remainder of Clause 12.4 remains unchanged.
13. Clause 14.2(b) (Limited Disclosure) of the Agreement is modified to read
as follows:
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Disclose such Confidential Information only to such persons as are
directly connected with the performance of Dealer's obligations
requiring knowledge of Confidential Information (who shall
therefore be deemed "Dealer Personnel" under Clause 2.3) and
disclose only such information as is required to enable them to
carry out their assigned duties or as otherwise required by law;
provided, however, that notice of receipt of any order or subpoena
requiring the disclosure of Confidential Information shall be
communicated immediately upon receipt to Company's Legal
Department telephonically, and confirmed immediately thereafter in
writing with a copy of the order or subpoena, so that Company will
have the opportunity to intervene to assert whatever rights it may
have with respect to the Confidential Information prior to any
response to the order or subpoena.
The remainder of Clause 14.2 remains unchanged.
14. The second sentence of Clause 14.6 (Customer Lists) of the Agreement is
modified to read as follows:
Therefore, all information about the people who purchased cellular
equipment from Dealer will be considered Confidential Information
hereunder, except such information shall not be subject to Clause
14.3.
The remainder of Clause 14.6 remains unchanged.
15. The first part of the second sentence of Clause 16.1 (Covenant Not to
Compete of the Agreement is modified to read as follows:
Therefore, Dealer covenants and agrees that, until termination of
this Agreement (whether voluntary or involuntary), and for a
period of six months thereafter, Dealer and its owners (including
partners and controlling shareholders), officers and affiliates
shall not, directly or indirectly:
The remainder of Clause 16.1 remains unchanged.
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16. The following language is inserted at the end of Clauses 14.4 (Material
Consideration for Agreement), 15.3 (Subscribers Are Customers of Company),
and 16.3 (Covenant Is Ancillary and Necessary) of the Agreement:
Notwithstanding the foregoing, upon any violation of this Clause
involving the prohibited use of information about current or
former customers of Company by any Dealer Personnel (at a level
below that of store manager), Dealer's liability shall be limited
to the repayment of the sum of any commissions paid to Dealer by
Company with respect to the Subscribers involved and any amounts
paid by anyone else to Dealer or for Dealer's benefit in
consequence of the violation -- provided that Dealer takes prompt
action to remedy the violation. This provision has no effect on
Clause 18.4.
The remainder of Clauses 14.4, 15.3, and 16.3 remains unchanged.
17. Clause 17.2 (Dealer's Duty to Update Financial Data) of the Agreement is
modified to read as follows:
Dealer shall promptly provide Company with copies of each filing
that it makes with the Securities and Exchange Commission pursuant
to the Securities and Exchange Act of 1934, as amended, and shall
quarterly provide such other financial data reasonably requested
by Company.
18. The first sentence of Clause 18.1 (Notice of Disputes and Waiver of
Claims) of the Agreement is modified to read as follows:
Notice of any claim or dispute by Dealer or Company relating to
the calculation of commissions or co-operative advertising credits
for any given month shall be submitted in writing within 180 days
after Company delivers its initial calculations for that month.
The remainder of Clause 18.1 remains unchanged.
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19. The second sentence of the second paragraph of Clause 18.2
(Indemnification) of the Agreement is modified to read as follows:
Further, each party shall have the right to approve the selection
of counsel by the other party and any settlement of a Claim, which
approvals shall not be unreasonably withheld.
The remainder of Clause 18.2 remains unchanged.
20. Clause 19.1(a) (Notices) of the Agreement is modified to read as follows:
All notices required hereunder shall be given, made or served when
deposited in the U.S. Mail, registered or certified, return
receipt requested, postage prepaid, or when delivered in person to
the respective parties to this Agreement; provided, however, that
any notice period in this Agreement of fewer than ten days shall
be extended by three days whenever a notice is mailed. Notice may
also be given by facsimile, with a confirming copy sent by mail,
as set forth above. Notice is to be sent to the address of the
respective parties as indicated on the first page of this
Agreement. Notices given in any other fashion shall be invalid
unless acknowledged in writing by a duly authorized representative
of the party receiving the notice.
The remainder of Clause 19.1 remains unchanged.
21. All provisions of the Agreement not specifically amended herein shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by it authorized officers as of the day and year first above written.
XxXXX COMMUNICATIONS OF FLORIDA, INC. SOUND ADVICE, INC.
on behalf of itself
and its Florida Region Affiliates
By: /s/ XXXXXX XXXXXX By: /s/ XXXXX XXXXXXXX
-------------------- ------------------
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
Vice-President President
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