EXHIBIT 10.17
AGREEMENT
This Agreement is made as of March 3, 1995 between X.X. Xxxxxxx Company, a
Minnesota corporation ("Xxxxxxx") and RadioSoft, Inc., a Delaware corporation
("RadioSoft").
Recitals
--------
WHEREAS, Xxxxxxx is in the business of, among other things, developing and
manufacturing two-way land mobile radio equipment;
WHEREAS, RadioSoft is in the business of, among other things, marketing a
computer aided dispatch software package known as "Radio Soft Real Time" and
RadioSoft desires to purchase two-way land mobile radio equipment from Xxxxxxx
for resale with such software;
WHEREAS, RadioSoft is familiar with the marketing of two-way land mobile
radio equipment and may, from time to time, identify third parties interested in
purchasing two-way land mobile radio equipment on a direct basis from Xxxxxxx;
and
WHEREAS, Xxxxxxx is interested in marketing, on a direct basis, a limited
quantity of the Software Packages and increasing its sales of two-way land
mobile radio equipment through sales leads supplied by RadioSoft and by selling
such equipment on a direct basis to RadioSoft.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. For the purposes of this Agreement, the following terms shall
-----------
have the meanings set forth below and shall include the plural as well as the
singular:
"Eligible Equipment" shall mean two-way land mobile radio equipment and
accessories which Xxxxxxx sells and distributes in the ordinary course of
business.
"Qualified Prospect" shall mean a potential buyer of the Eligible Equipment
which (i) was, at the time of Xxxxxxx'x receipt of the applicable Prospect
Notice, not known as a potential buyer to Xxxxxxx or any Xxxxxxx employee and
(ii) desires to purchase the Eligible Equipment. Subject to the terms herein,
the parties acknowledge that potential buyers which RadioSoft notifies Xxxxxxx
of will be considered Qualified Prospects if Xxxxxxx, on a good faith basis,
determines that sales of the Eligible Equipment to such potential buyers would
not have occurred if not for the participation by RadioSoft in Xxxxxxx'x
specific sales transactions with such potential buyers.
"Software Package" shall mean all the software, subsystems, technical
information and other materials RadioSoft makes available to its customers to
install and operate its RadioSoft Real Time software product.
"Prospect Notice" shall mean written notice from RadioSoft to Xxxxxxx
identifying a potential Qualified Prospect; such notice to contain (i) the
prospect's complete name, business address and contact person, (ii) RadioSoft's
business relationship with such prospect, (iii) the type and estimated quantity
of Eligible Equipment the prospect is interested in purchasing and (iv) such
additional information as Xxxxxxx may request, including information regarding
the prospect's RF licenses and financial status.
2. Notice of Leads. From time to time during the Term (as defined below),
---------------
RadioSoft shall provide Xxxxxxx with Prospect Notices. Xxxxxxx will review, on
a good faith basis, each Prospect Notice (and any additional information Xxxxxxx
deems appropriate) and based on such review, Xxxxxxx will notify RadioSoft (i)
whether the prospect identified in the Prospect Notice constitutes a Qualified
Prospect; and (ii) if such prospect constitutes a Qualified Prospect, then
whether Xxxxxxx desires to pursue the sale of Eligible Products to such
prospect.
3. Eligible Equipment Sale. If Xxxxxxx pursues and finally concludes a sales
-----------------------
transaction with a Qualified Prospect pursuant to which Xxxxxxx sells Eligible
Equipment to such prospect (an "Eligible Transaction"), then RadioSoft shall be
eligible to receive a sales lead fee equal to five percent (5%) of the purchase
price of Eligible Products shipped by Xxxxxxx pursuant to such transaction
during the Term (the "Sales Lead Fees"). The Sales Lead Fees are not intended
to be paid to RadioSoft, but are instead applied and credited against the Fee
Prepayment (as defined below) pursuant to Section 4 below. Such purchase price
shall be net of freight and handling charges, insurance, taxes and similar
government impositions. The parties acknowledge and agree that subsequent to
the Term, RadioSoft shall not be entitled to any credit or payments related to
Qualified Prospects, Eligible Transactions, Sales Lead Fees or otherwise.
4. Sales Lead Fee Prepayment. In consideration of RadioSoft notifying Xxxxxxx
-------------------------
of Qualified Prospects during the Term, Xxxxxxx hereby agrees to pay RadioSoft,
within ten (10) days of the date hereof, the sum of One Hundred Fifty Thousand
Dollars ($150,000) as a prepayment of the Sales Lead Fees (the "Fee
Prepayment"). During the Term, each of the following will be applied and
credited against the Fee Prepayment (collectively, the "Credited Items"):
(a) all Sales Lead Fees;
(b) the RadioSoft Margin (as defined below) on each RadioSoft resale of the
Eligible Equipment purchased by RadioSoft from Xxxxxxx pursuant to Section 5
below;
(c) the Software Package Fees (as defined below) paid by Xxxxxxx to
RadioSoft; and
(d) any payment to Xxxxxxx by RadioSoft denoted at the time of payment by
RadioSoft as a "Payment Against Fee-Prepayment."
For the purposes of this Agreement, the term "RadioSoft Margin" shall mean the
difference between the price for the Eligible Equipment paid by RadioSoft to
Xxxxxxx pursuant to Section 5 below and
2
the price RadioSoft charges in the resale of such equipment to its customers. At
the time of each resale of the Eligible Equipment by RadioSoft, RadioSoft shall
provide Xxxxxxx with documentation evidencing its actual resale price for such
equipment.
5. Sales of Eligible Equipment to RadioSoft. Xxxxxxx hereby agrees to sell, and
----------------------------------------
RadioSoft agrees to purchase, such quantities of the Eligible Equipment as
RadioSoft may order from Xxxxxxx from time to time during the Term, subject to
the following:
(a) the purchase price for such products shall be at Xxxxxxx'x published
dealer list prices, minus discounts offered to comparable volume dealers of
Eligible Products;
(b) delivery shall be according to Xxxxxxx'x standard lead times; and
(c) all such orders shall be subject to Xxxxxxx'x written acceptance (on an
order by order basis) and shall be upon terms and conditions satisfactory to
Xxxxxxx.
6. Software Packages to Xxxxxxx. (a) In further consideration of the Fee
----------------------------
Prepayment, within ten (10) days from the date hereof, RadioSoft shall deliver
fifteen (15) copies of the Software Package to Xxxxxxx for resale to customers
for the Permitted Uses (as defined below). From time to time during the Term,
Xxxxxxx may purchase up to fifteen (15) additional copies of the Software
Package at a price of Ten Thousand Dollars ($10,000) for each copy (the
"Software Package Fees") for resale to customers for the Permitted Uses.
RadioSoft represents and warrants to Xxxxxxx that (i) RadioSoft has the
unrestricted right to deliver and transfer the Software Packages to Xxxxxxx
according to the terms herein and (ii) that such delivery and transfer of the
Software Packages to Xxxxxxx (and Johnson's subsequent sublicense, resale or
other transfer of such packages to its customers) is free of any claims or
rights of any third parties.
(b) RadioSoft shall provide Xxxxxxx with the same level of standard technical
assistance and customer service as RadioSoft provides its other Software Package
customers (the "Standard RadioSoft Service"). RadioSoft and Xxxxxxx shall
negotiate in good faith, on a case by case basis, the price, scope and timing of
any technical assistance or end user training Xxxxxxx may reasonably request
which is beyond the Standard RadioSoft Service.
For the purposes of this Agreement, terms set forth below shall have the
following meanings:
(i) "Permitted Uses" shall mean use of the Software Package for the provision
of two-way mobile transport dispatch functions performed through a mobile
wireless communications network, whether performed by the user for itself or by
the user for the benefit of a third party; except that such term shall not
include (1) Private Ambulance Dispatch (as defined below) or (2) use of the
Software Package in any or all of Monroe, Dade, Broward or Palm Beach Counties,
Florida.
(ii) "Private Ambulance Dispatch" means two-way mobile dispatch functions for
medical, paramedical, ambulance or health-related transport performed through a
mobile wireless
3
communications network by any person other than a Governmental Provider (as
defined below), whether performed by the user for itself or by the user for the
benefit of one or more third parties (including local, municipal, state and
federal governmental authorities).
(iii) "Governmental Provider" means a local, municipal, state or federal
governmental authority operating the business of transport dispatch directly or
through a subdivision or unit of such governmental authority, and excludes any
transport dispatch conducted on behalf of a local, municipal, state or federal
governmental authority under a contract or license by a private or quasi-public
service provider.
(c) The provisions of this Section 6 shall survive any termination or
expiration of this Agreement.
7. Term. Unless sooner terminated pursuant to Section 8 below, the term of this
----
Agreement shall commence as of the date hereof and shall thereafter
automatically terminate at such time as the aggregate amount of the Credit items
equals or exceeds the Fee Prepayment.
8. Termination. This Agreement shall terminate prior to the time set forth in
-----------
Section 7 above upon the happening of one or more of the following:
(a) either party breaches any term or provision herein and the breaching
party's failure to cure such breach within thirty (30) days' after written
notice from the non-breaching party demanding cure of such breach;
(b) Xxxxxxx gives RadioSoft sixty (60) days prior written notice of its
election to terminate this Agreement and such election to terminate by Xxxxxxx
may be made with or without cause; or
(c) the mutual written agreement of the parties to terminate the Agreement.
If this Agreement terminates or expires for any reason and, at such time, the
aggregate amount of the Credit Items does not equal or exceed the Fee
Prepayment, then, upon Xxxxxxx'x request, RadioSoft shall deliver to Xxxxxxx
such number of additional copies of the Software Package (for Xxxxxxx'x resale
according to Section 6 above) which, when multiplied by $10,000 and added to the
aggregate amount of the Credited Items, will equal or exceed the Fee Prepayment.
9. Miscellaneous Provisions.
------------------------
(a) The parties agree to execute and deliver all documents, and take such
other action, which may be reasonably requested by the other party hereto, in
order to carry out the purposes and intent of this Agreement. Each party hereto
represents and warrants to the other party that it has full right, power and
authority to enter into this Agreement and perform hereunder without the prior
consent or approval of any third parties.
4
(b) Neither party shall assign or delegate any of their respective rights and
obligations hereunder without the prior written consent of the other party.
(c) In fulfilling their respective obligations hereunder, each party is
acting as an independent contractor only. Neither party is granted any right or
authority to assume or create any obligations or duties, express or implied, on
behalf of or in the name of the other party.
(d) Any notice required hereunder shall be in writing and shall be delivered
in person, by registered mail, postage prepaid and return receipt requested or
via Federal Express or other similar overnight delivery service with all freight
charges prepaid, addressed as follows or at such other address requested and
designated in writing to the other party hereto:
XXXXXXX: RADIOSOFT:
X.X. Xxxxxxx Company RadioSoft, Inc.
00 Xxxxxxx Xxxxxxxxx Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000 Xxxx Xxxxxxxxxx, XX 00000-0000
Attention: Chairman Attention: Vice President
(e) This Agreement constitutes the sole written expression of the terms of
the agreement between the parties hereto on the subject matter covered herein.
All prior negotiations, discussions, quotations and agreements, written or oral,
are superseded by this Agreement. Any modification or amendment of this
Agreement is ineffective unless it is in writing declared to be a modification
or amendment of this Agreement and signed by both parties. This Agreement shall
be governed by and interpreted in accordance with the laws of the State of
Minnesota, excluding its laws regarding conflict of laws.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
X.X. Xxxxxxx Company RadioSoft, Inc.
By /s/ Xxxxxxx Xxxxxx By /s/ Xxxxxxx Xxxxxx
---------------------------- ------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx
Its Chairman Its Vice President
5
