Exhibit 10.18
MARKETING AGREEMENT
This Marketing Agreement is made as of this 1st day of March, 2000,
between Preferred Voice, Inc., a Delaware corporation ("PVI") and North Carolina
RSA 3 Cellular Telephone Co. dba Carolina West Wireless, a North Carolina
corporation, on behalf of itself and its wholly owned subsidiaries and
affiliates ("WIRELESS PROVIDER"). PVI and WIRELESS PROVIDER are collectively
referred to in this Agreement as the "Parties."
Background Information
PVI has developed a system (the "System") that when interconnected with
a telecommunications switching system is capable of performing the services
described in Exhibit A attached hereto and incorporated herein by reference (the
"Services"). Each System consists of the hardware described in Exhibit B,
certain third party software and certain proprietary application software
developed by PVI. WIRELESS PROVIDER is a licensed wireless carrier that is
currently providing telecommunications service in the areas described in Exhibit
C. WIRELESS PROVIDER wishes to offer the Services to end users ("End Users")
under its own brand in conjunction with its telecommunications services.
In consideration of the mutual promises made in this Agreement, PVI and
WIRELESS PROVIDER agree that the terms and conditions set forth as follows will
apply to the license of Application Software.
ARTICLE 1. INSTALLATION
1.01 Installation. PVI shall install, at its cost, its Systems at
WIRELESS PROVIDER's switch locations set forth in Exhibit C to interconnect with
switches described in Exhibit C. The System will remain the property of PVI.
WIRELESS PROVIDER shall prepare the site in accordance with PVI's
specifications. Installation of Systems will be completed within 90 days. PVI
agrees to install Systems so that they shall comply in all material respects
with all federal, state, and local laws and regulations in force on the date
hereof.
1.02 PVI Testing. PVI shall test, at its cost, the Systems to ensure
that they work properly. The testing period shall (i) commence promptly upon the
completion of installation of the System at the sites, but in no event later
than five (5) days following such completion of installation (the "Commencement
Date"), and (ii) conclude upon acceptance by as described in Section 1.03 below.
Should material deficiencies arise in the performance of the System during
testing, PVI shall inform WIRELESS PROVIDER promptly thereof by submitting
notice, including a written, reasonably detailed description of each deficiency,
to WIRELESS PROVIDER. PVI shall then use reasonable efforts to cure the
noncompliance. WIRELESS PROVIDER shall use its best efforts to assist PVI in
curing such noncompliance. Upon completion of such cure, PVI shall give notice
to WIRELESS PROVIDER thereof. The total period of time that may be spent on the
testing period shall not exceed thirty (30)
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**[Confidential Treatment] indicates portions of this document that have been
deleted from this document and have been separately filed with the Securities
and Exchange Commission.
days from the Commencement Date. If PVI, using commercially reasonable efforts,
is unable to cure any material deficiency of the System within 30 days of the
Commencement Date, then following notice thereof either party may give the other
party thirty (30) days' written notice of its election to terminate this
Agreement and the reasons therefor.
1.03 WIRELESS PROVIDER Acceptance. PVI shall inform WIRELESS PROVIDER
in writing of the completion of PVI's testing under Section 1.02. WIRELESS
PROVIDER will thereupon commence testing of the System, and shall have 30 days
in which to test the functionality of the System with employees. Upon completion
of the 30-day test period, WIRELESS PROVIDER shall either provide PVI with
written notice of any problems revealed in its tests or deliver PVI an
acceptance certificate, substantially in the form attached hereto as Exhibit D
(the "Acceptance Certificate"). The System shall be deemed to have been accepted
by WIRELESS PROVIDER upon execution and delivery by WIRELESS PROVIDER to PVI of
an Acceptance Certificate, executed by an authorized representative of WIRELESS
PROVIDER or failure of WIRELESS PROVIDER to provide written notice to PVI of any
problems WIRELESS PROVIDER discovers within the 30-day period it is conducting
tests.
ARTICLE 2. SALES AND MARKETING
2.01 Sales. WIRELESS PROVIDER shall use commercially reasonable efforts
to promote sale of the Services so as to maximize revenues, including conducting
commercially reasonable advertising campaigns and maintaining an inventory of
collateral support materials for promotion, advertising, point-of-sale, record
keeping, subscriptions, and other items related to sales of the Services.
WIRELESS PROVIDER shall ▇▇▇▇ and collect for Services used by End Users.
2.02 Pricing. The WIRELESS PROVIDER will determine the prices at which
the Services will be made available to End-Users and any changes to these
prices.
2.03 Advertising and Promotional Literature. PVI will assist WIRELESS
PROVIDER in the development and production of original copy of advertising and
collateral support materials (i.e. layout, verbiage, plates, negatives, dies,
and/or other setup materials) that may be utilized by WIRELESS PROVIDER for
marketing the Services. WIRELESS PROVIDER shall utilize the PVI published, most
current, marketing support materials as a guideline to establish advertising and
promotional literature.
2.04. Exclusivity. WIRELESS PROVIDER agrees that during the term of
this Agreement it will not install, for testing or any other purposes, any
system which competes with PVI's commercially deployed Systems to provide
service in any calling area that WIRELESS PROVIDER is authorized to serve during
the term of this Agreement as long as PVI is in compliance with the terms and
conditions of this Agreement.
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ARTICLE 3. PAYMENT
WIRELESS PROVIDER shall pay PVI a share of WIRELESS PROVIDER's revenue
from the Services determined from the schedule set forth in Exhibit E. This
amount shall be paid monthly on the fifteenth day of each month for Services
billed in the prior month.
ARTICLE 4. TRAINING AND SUPPORT
4.01 Technical Support. During the term of this Agreement, PVI shall
provide a technical support help desk that WIRELESS PROVIDER may call to report
System troubles twenty-four (24) hours per day, seven (7) days per week basis.
PVI shall troubleshoot the problems and contact the appropriate vendor to
resolve problems that cannot be resolved by actions WIRELESS PROVIDER may take
on PVI's instruction. During the term of this Agreement, PVI shall provide (i)
remote, dial-up System support, on a twenty-four (24) hours per day, seven (7)
days per week basis, and (ii) packages, generally containing corrections of
known software defects and updates or patches to increase or improve performance
and occasionally also containing minor feature enhancements of existing
software, relating to a current System. WIRELESS PROVIDER shall provide
permanent connectivity to each System for the purpose of off-site software
revision and maintenance.
4.02 Training. As part of the installation process and at no cost to
WIRELESS PROVIDER, PVI shall provide WIRELESS PROVIDER's personnel with the
initial training and instruction as described on Exhibit F attached hereto
concerning the operation and use of the System by conducting training sessions
at a mutually convenient time at WIRELESS PROVIDER's facility. Any additional
training services that are requested by WIRELESS PROVIDER shall be invoiced to
WIRELESS PROVIDER in accordance with PVI's then prevailing hourly rates.
WIRELESS PROVIDER shall be responsible for all travel and other expenses of its
personnel attending such training sessions.
ARTICLE 5. TERM
The initial term of this Agreement shall be three years. Upon
expiration of the initial term specified above, the Agreement shall
automatically renew for up to seven successive one (1) year terms unless either
party gives the other notice of its intention not to renew the license at least
sixty (60) days prior to the expiration of the then current term.
ARTICLE 6. WARRANTY PROVISIONS
6.01 General. PVI warrants that the System will provide Services when
properly interconnected to WIRELESS PROVIDER's functioning switches of the types
described in Exhibit C (provided, that ANY MODIFICATION OF THE SYSTEM BY ANY
PERSONS OTHER THAN PVI SHALL, UNLESS PURSUANT TO PVI'S INSTRUCTION, VOID THE
WARRANTY IN THIS SECTION 6.01).
6.02 Year 2000. PVI warrants that the System delivered or modified by
PVI is, or will be, Year 2000 Compliant (as defined below). Year 2000 Compliant
software that is intended to interoperate with third party products as described
herein will be compatible and inter-operate in such manner as to process between
them, as applicable, date related data correctly as described in the definition
of "Year 2000 Compliant." Except as set forth in the preceding sentence, (i) PVI
assumes no responsibilities or obligations to
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cause third party products to function with the System; and (ii) PVI will not be
in breach of this warranty for any failure of the System to be Year 2000
Compliant if such failure results from the inability of any software, hardware,
or systems of WIRELESS PROVIDER or any third party to be Year 2000 Compliant.
"Year 2000 Compliant" means that (a) neither the performance nor functionality
of the System will be affected by dates prior to, during and after the year
2000, (b) no value for current date will cause any interruption in the operation
of the System; (c) the year 2000 is recognized as a leap year; (d) in all
interfaces and data storage the century, in any date, is specified either
explicitly or by unambiguous algorithms or inferencing rules; and (e) date-based
functionality of the System behaves and will behave consistently for dates prior
to, during and after the year 2000.
ARTICLE 7. TERMINATION
7.01 Cause for Termination. This Agreement shall terminate
automatically and without further notice upon the occurrence of expiration of
the term, specified in Article 5 or of any renewal term in the absence of a
subsequent renewal in accordance with the terms of this Agreement. PVI may
terminate this Agreement in the event that revenue sharing payments to PVI are
less than $2000 per System per month for three consecutive months, unless
WIRELESS PROVIDER pays PVI the shortfall. In addition, either party may
terminate this Agreement at any time if (a) the other party breaches any term
hereof and fails to cure such breach within 30 days (or ten days in the case of
a failure to pay any sum due) after receipt of written notice, (b) the other
party shall be or becomes insolvent, (c) the other party makes an assignment for
the benefit of creditors, (d) there are instituted by the other party
proceedings in bankruptcy or under any insolvency or similar law or for
reorganization, receivership or dissolution, (e) there are instituted against
the other party proceedings in bankruptcy or under any insolvency or similar law
or for reorganization, receivership or dissolution, which proceedings are not
dismissed within 60 days, or (f) the other party ceases to do business.
7.02 Effect of Termination. WIRELESS PROVIDER agrees that on
termination under ▇▇▇▇▇▇▇ ▇.▇▇, ▇▇▇ may recover all Systems that have been
installed. PVI shall remove the Systems within 60 days of the termination of
this Agreement and if it fails to do so, WIRELESS PROVIDER may remove them and,
at PVI's cost, ship the Systems to PVI. Upon termination of the license, the
obligations of both parties under this Agreement shall cease. The termination or
expiration of this Agreement shall in no way relieve either party from its
obligation to pay the other any sums accrued hereunder prior to such termination
or expiration.
ARTICLE 8. INSURANCE
Each party hereto shall maintain, during the term of this Agreement,
the following insurance coverage as well as all other insurance required by law
in the jurisdictions where the work is performed: (a) worker's compensation and
related insurance as required by law; (b) employer's liability insurance with a
limit of at least five hundred thousand ($500,000) dollars for each occurrence;
(c) comprehensive general liability insurance, with a limit of at least one
million ($1,000,000) dollars per occurrence; and (d) comprehensive motor vehicle
liability insurance with limits of at least one million ($1,000,000) dollars for
bodily injury including death, to any one person, three hundred thousand
($300,000) dollars for each
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occurrence of property damage, and one million ($1,000,000) dollars for each
occurrence. Each party shall (i) furnish the other prior to the start of the
relevant work, if requested by the other, certificates or adequate proof of the
insurance required by this Section and (ii) notify the other in writing at least
thirty (30) days prior to cancellation of or any material change in the policy.
ARTICLE 9. MISCELLANEOUS
9.01 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT THAT ANY CONFLICTS OF
LAW RULES OR PRINCIPLES OF THE STATE OF TEXAS THAT WOULD REQUIRE REFERENCE TO
THE LAWS OF ANOTHER JURISDICTION SHALL BE DISREGARDED.
9.02 Headings. Headings used in this Agreement are to facilitate
reference only, are not a part of this Agreement, and will not in any way affect
the interpretation hereof. The use herein of the word "including," when
following any general statement, term or matter, shall not be construed to limit
such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not
non-limiting language (such as "without limitation," or "but not limited to," or
words of similar import) is used with references thereto, but rather shall be
deemed to refer to all other items and matters, that reasonably could fall
within the broadest possible scope of such general statement, term or matter.
9.03 Assignment. This Agreement, and all rights and obligations
hereunder, are personal as to the parties hereto and may not be assigned, in
whole or in part, by any of the parties to any other person, firm or corporation
without the prior written consent thereto by the other party hereto, which
consent will not be unreasonably withheld; except that either party may freely
assign any or all of its rights and obligations hereunder to any affiliate or to
any person acquiring all or substantially all of that party's stock or assets.
An affiliate is (a) an entity that owns all or substantially all of the
outstanding stock of the entity so assigning, (b) an entity all or substantially
all of whose stock is owned by the entity so assigning, or (c) an entity under
common ownership with the entity so assigning. Such assignee entity shall
thereupon be free to assign the rights and obligations under this Agreement to
any other affiliate. Any assignment contrary to the terms hereof shall be null
and void and of no force or effect.
9.04 Failure or Partial Exercises. No failure on the part of any party
to exercise, and no delay in exercising, any right or remedy hereunder shall
operate as a waiver thereof. Nor shall any single or partial exercise of any
right or remedy hereunder exclude any other or further exercise thereof or the
exercise of any other right hereunder.
9.05 Entire Agreement, Amendments. This Agreement and all schedules and
exhibits annexed hereto constitute the entire agreement among the parties
respecting the subject matter hereof and supersedes all prior agreements among
the parties relative to the subject matter hereof. In entering this Agreement,
WIRELESS PROVIDER did not rely on any representations or warranties of PVI or
its employees or agents other than those set forth in this Agreement. This
Agreement may not be modified or amended except by a writing that states that it
is an amendment to this Agreement and which is signed by duly authorized
representative of the parties.
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9.06 Notices. All notices required or permitted to be given hereunder
shall be in writing and shall be valid and sufficient if dispatched either (i)
by hand delivery, (ii) by facsimile transceiver, with confirming letter mailed
promptly thereafter by first class mail, postage prepaid, (iii) by reputable
overnight express courier or (iv) by certified mail, postage prepaid, return
receipt requested, deposited in any post office in the United States, in any
case, addressed to the addresses set forth on the signature page of this
Agreement, or such other addresses as may be provided from time to time in the
manner set forth above. When sent by facsimile as aforesaid, notices given as
herein provided shall be considered to have been received at the beginning of
recipient's next business day following their confirmed transmission; otherwise,
notices shall be considered to have been received only upon delivery or
attempted delivery during normal business hours.
9.07 Partial Invalidity. If any clause or provision of this Agreement
is held to be illegal, invalid, or unenforceable under present or future laws
effective during the term of this Agreement, then and in that event, it is the
intention of the parties hereto that the remainder of this Agreement shall not
be affected thereby, and it is also the intention of the parties to this
Agreement that in lieu of each clause or provision of this Agreement that is
held to be illegal, invalid, or unenforceable, there be added as a part of this
Agreement a clause or provision as similar in terms to such illegal, invalid, or
unenforceable clause or provision as may be possible and still be legal, valid,
and enforceable.
9.08 Attorneys Fees. The prevailing party in any litigation,
arbitration or other proceedings arising out of this Agreement shall be
reimbursed by the other party for all costs and expenses incurred in such
proceedings, including reasonable attorneys' fees.
9.09 Force Majeure. No party hereto shall be liable for delay or
default in performing hereunder, other than a delay or default in payment of any
monies due to the other party, if such performance is delayed or prevented by a
Force Majeure Condition. "Force Majeure Condition" means any condition or event
beyond the reasonable control of the party affected thereby, including fire,
explosion, or other casualty, act of God, war or civil disturbance, acts of
public enemies, embargo, the performance or non-performance of third parties,
acts of city, state, local or federal governments in their sovereign,
regulatory, or contractual capacity, labor difficulties, and strikes, but
specifically excluding a party's failure to be Year 2000 Compliant. If a Force
Majeure Condition occurs, the party delayed or unable to perform shall give
prompt notice of such occurrence to the other party. The party affected by the
other party's inability to perform may, after sixty (60) days, elect to either
terminate this Agreement or continue performance with the option of extending
the terms of the Agreement up to the length of time the Force Majeure Condition
endures. The party experiencing the Force Majeure Condition must inform the
other party in writing when such a condition ceases to exist. Each party shall,
with the cooperation of the other, exercise all reasonable efforts to mitigate
the extent of a delay or failure resulting from a Force Majeure Condition.
9.10 Independent Contractor. The relationship of the parties
established by this Agreement is that of independent contractors, and nothing
contained in this Agreement will be construed (a) to give either party the power
to direct and control the day-to-day activities of the other, (b) to constitute
the parties as partners, joint venturers, owners or otherwise as participants in
a joint or common undertaking, or (c) to allow either party to create or assume
any obligation on behalf of the other for any purpose whatsoever.
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9.11 Confidentiality. The terms of this Agreement, and all information
transmitted between or among the parties pursuant hereto or in connection
herewith, including, without limitation, any information concerning WIRELESS
PROVIDER's customers, shall be maintained in confidence by all parties and shall
be disclosed only to such of the receiving party's employees or agents having a
need to know the information for the purposes set forth below. No party may
disclose such information to any third party, except as may be required pursuant
to a lawfully issued subpoena or other formal demand for the production of
information by a court of competent jurisdiction or a regulatory body with
jurisdiction over the party. In the event any such demand is made, the party
ordered to produce such information shall promptly notify the other parties and
shall use its best efforts to maintain the confidentiality of such information.
In addition, if either party determines that this Agreement is a "material
contract," that party may file this Agreement with the Securities and Exchange
Commission, provided that it notifies the other party at least fifteen (15) days
prior to such filing and cooperates with the other party to seek confidential
treatment of provisions reasonably designated by the other party for such
treatment. Each party may use confidential information obtained solely as a
result of this Agreement only for the purpose of performing hereunder. Neither
party may use the other party's confidential information for any other purpose
without the express written agreement of the owner.
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PREFERRED VOICE, INC. CAROLINA WEST WIRELESS,
on behalf of itself and its
wholly owned subsidiaries and
affiliates
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------- ------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President Title: General Manager
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇ Fax No: ▇▇▇-▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
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EXHIBIT A
PREFERRED VOICE, INC.
Product Descriptions
FLEET CALLING ADVANTAGE permits any caller dial-up access to a
directory of cellular phones served by
WIRELESS PROVIDER, and the caller may then
speak the name of the person in the
Directory with whom he wishes to speak and
be connected with that person's cellular
phone.
INTELLIGENT CALL SCREENING gives the subscriber the ability to hear the
voice of the person calling and the option
to accept the call or deny the call. Denying
the call will automatically send it to voice
mail or if the subscriber does not have
voice mail, the system will inform the
caller that the person is currently
unavailable.
SAFETY DIALING is a service that allows the person placing
the call to access the WIRELESS PROVIDER'S
network, dial the assigned access code (such
as **) on the keypad, speak a name from his
or her directory. That name's programmed
number will then be dialed.
EXHIBIT B
ITEM DESCRIPTION
FTU-2000A CUSTOM COMPUTER
PIIBX40P38 PENT II 400MHz CPU
PIIBX33P38 PENT II 333MHz CPU
64M040 64MB DIMM RAM
FD015 3.5" FDD, BLACK
HD91S 9.1GB HDD, SCSI
ALM-100B-H 4.3GB HDD, SCSI
CDKIT1 ALARM BOARD
CDT240A DUAL SLIM CD-ROM
SCSR03 SLIM LINE CD-ROM
MD566A JUMPERABLE FAX/MDM
MNT40 MS WIN NT 4.0
240SCT1 PORT RESOURCE
ANTARES VOICE RESOURCE
PRO 2V ALARM RESOURCE
PORT FEE VOICE REC RESOURCE
Optional Hardware Components
48v Inverter
Master Switch
Traffic Engineering
Users Ports
1000 11
2000 20
3000 26
Spares Kit
EXHIBIT C
WIRELESS PROVIDER Locations
[to be added
EXHIBIT D
Form of Acceptance Certificate
The undersigned, an authorized representative of a _______________
corporation, on behalf of itself and its wholly owned subsidiaries and
affiliates ("WIRELESS PROVIDER"), in his/her capacity as _______________, does
hereby certify that (a) the testing period (as such term is defined in the
Software License Agreement, dated as of _____________, 1999 (the "Agreement"),
by and between Preferred Voice, Inc. ("PVI") and WIRELESS PROVIDER with respect
to the System (as defined in the Agreement) purchased or licensed by WIRELESS
PROVIDER has been successfully completed, (b) the System satisfies the
requirements of the Specifications (as defined in the Agreement) and (c) the
System is hereby accepted by WIRELESS PROVIDER.
Date:
------------------------ ------------------------------------
By:
---------------------------------
Printed Name:
-----------------------
EXHIBIT E
Revenue Sharing Fees
**% OF THE FIRST $** IN REVENUE FOR EACH SYSTEM
**% OF THE NEXT $** IN REVENUE FOR EACH SYSTEM
**% OF ALL REVENUE IN EXCESS OF $** FOR EACH SYSTEM
For purposes of this Agreement, Revenue shall equal the greater of
(a) the amount that would have been received by Wireless
Carrier if the charges set forth in the Exhibit E-1 had been charged to
each subscriber using one of the Services described in Exhibit E-1
except that if WIRELESS PROVIDER is offering reduced rates or free
service as part of a promotion, only a new subscriber's actual revenue
need be accrued for the promotion during the first 30 days of service
to the new subscriber, or
(b) the actual revenue received from subscribers using a
Service offered by means of a System, excluding sales and use taxes,
interest and late charges.
**Confidential Treatment Requested.
EXHIBIT E-1
Service Monthly Fees
Fleet Calling Advantage $** per phone in the calling circle
Intelligent Call Screening $**
Safety Dialing $**
**Confidential Treatment Requested.
EXHIBIT F
Training
1. Services Training --
o Target Audience
-- Product Manager
-- Product Marketing
o Contents
-- Complete review of each PVI service description and application
-- Market Position -- Target Market
2. System Installation and Maintenance Training --
Installation
o Hardware Installation
o T-1 Configuration
o VIP Programming
-- SCC
-- DID
Maintenance
o Alarm Systems
o Hardware Replacement
o Hardware Expansion
3. Provisioning
