EXHIBIT 10(iii)
EXPRESSVU INC.
APPROVED AGENT AGREEMENT
This Agreement made this 10th day of October, 1995
Between
ExpressVu Inc.
0000 Xxxxxxx Xxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
(hereinafter referred to as "ExpressVu")
-And-
West Coast Wireless Cable
#29 - 0000 000xx Xxxxxx
Xxxxxxxxxx XX
X0X0X0
(hereinafter referred to as the "Approved Agent")
WHEREAS ExpressVu is engaged in the business of providing a Direct to
Home TV broadcast service in Canada.
AND WHEREAS the Approved Agent wishes to act as an agent of such
service.
SECTION 1. DEFINED TERMS. In this Agreement, the following terms shall be
defined as follows:
"ACTIVATION" means activating the Service for a Subscriber who, within
the past 180 days of the date of becoming a Subscriber, has not
previously been a Subscriber activated on the Service.
"COMMERCIAL CUSTOMER" means a Subscriber who receives the Service for
display in an establishment to which the general public is invited or
permitted access.
"CUSTOMER" means a Subscriber who is not a person engaged in the
resale or distribution of the Services.
"DISTRIBUTION BUSINESS" means the business to be carried on by the
Approved Agent.
"EXCLUSIVE APPROVED AGENT" means an agent who sells, services and
installs only the digital ExpressVu system on an exclusive basis in
accordance with Section 2.
"INITIAL TERM" means a period of thirty-six (36) months under the
terms of this Agreement.
"MANUAL" means the agent's manual as from time to time provided to the
Approved Agent by ExpressVu, together with all amendments made by
ExpressVu and provided to the Approved Agent.
"NON-EXCLUSIVE APPROVED AGENT" means an agent who sells, services and
installs the Service on a non-exclusive basis in accordance with
Section 2.
"PREMISES" means the premises out of which the Approved Agent carries
on the Distribution Business.
"RESIDENTIAL CUSTOMER" means a Subscriber who receives the Service for
display exclusively by the Subscriber only within that Subscribers
residence.
"SERVICE" means the Direct to Home broadcast service provided or to be
provided by ExpressVu in Canada.
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"SUBSCRIBER" means any person or entity that has subscribed to
ExpressVu in order to receive the Service with satellite receiving
equipment.
SECTION 2. APPOINTMENT. (1) ExpressVu hereby appoints the Approved Agent,
and the Approved Agent hereby accepts appointment as, an agent of the
Service. The Approved Agent shall promote and sell the Service to
Customers in accordance with the terms and conditions of this Agreement.
(2) The Approved Agent may, by agreement of the parties, be
designated as an Exclusive Approved Agent or a Non-Exclusive Approved Agent
as may be indicated on the signature page hereof opposite the name of the
Approved Agent. If the Approved Agent has been designated as an Exclusive
Approved Agent, the Approved Agent shall not sell, service or install any
other Digital Direct to Home broadcast service other than the Service or
any Direct to Home broadcast receiving equipment not compatible with the
Service. If the parties have not agreed to designate the Approved Agent as
an Exclusive Approved Agent, the Approved Agent shall be a non-exclusive
Approved Agent.-
(3) ExpressVu shall have the right to appoint any number of
distributors of the Service and the Approved Agent shall not be entitled to
exclusivity within any defined market.
SECTION 3. TERM OF AGREEMENT. The term of this Agreement is a period of
thirty-six (36) months beginning on the 1ST day of NOVEMBER, 1995 and
ending on the 31ST day of OCTOBER, 1998. This Agreement may be earlier
terminated in accordance with Section 5 of Schedule "B".
SECTION 4. DUTIES AND RESPONSIBILITIES OF THE APPROVED AGENT. The Approved
Agent agrees to promote and market the Service in a manner consistent with
the expectations, policies and procedures of ExpressVu. Without limiting
the generality of the foregoing, the Approved Agent agrees:
i) To devote all necessary resources, time and attention to the
establishment, development, and operation of the Distribution
Business and to maximize the market penetration of the Service in
the area served by the Approved Agent.
ii) Not to sell the Service to customers outside Canada.
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iii) To distinguish between Residential Customers, Commercial
Customers, SMATV and other classes of Customers for the purposes
of activation.
iv) To provide prompt, courteous and efficient service to every
Customer and prospective Customer and adhere to the highest
standards of honesty, integrity, fair dealing and ethical conduct
in all dealings with its customers, suppliers, ExpressVu and the
public.
v) To maintain the internal and external condition and appearance of
the Premises including all signage as an attractive, modern,
clean, convenient and efficiently operated business offering high
quality products and prompt and courteous service.
vi) To participate fully in national, regional, and local sales and
service programs and promotions as ExpressVu may request.
vii) To strictly comply with all applicable municipal, provincial and
federal laws and regulations and the terms and conditions of all
applicable orders, permits, certificates and licenses and obtain
and maintain at all times all permits, certificates and licenses
necessary or desirable for the proper conduct of the Distribution
Business and pay when due all required taxes, duties and charges.
viii) To provide all after-sales service to Customers, including but
not limited to, repairs and maintenance of the satellite
equipment and handling warranty claims, in order to maintain the
Service as intended.
ix) To obtain a receiver and other equipment necessary to receive the
Service and maintain an operational display of the Service for
demonstration purposes.
x) Not to alter trade names or marks affixed to the receiver by
ExpressVu or by the manufacturer or other distributor of
receivers or repackage or relabel any promotional materials
supplied by ExpressVu.
xi) To fulfill all performance criteria.
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All costs incurred by the Approved Agent in performing its obligations
hereunder, should unless otherwise specifically agreed be the sole
responsibility of the Approved Agent and shall not be subject to
reimbursement by ExpressVu.
SECTION 5. DUTIES AND RESPONSIBILITIES OF EXPRESSVU. ExpressVu agrees:
i) To supply the Approved Agent with reasonable quantities of
promotional material in both English and French at a reasonable
cost to the Approved Agent.
ii) To participate in local co-operative advertising programs with
the Approved Agent in accordance with Schedule A.
iii) To inform the Approved Agent of changes to the rates, conditions,
and other material aspects of the Service and the service area as
soon as practical after any such change.
iv) To refer potential Subscribers to the Approved Agent according to
such procedures as ExpressVu may establish from time to time at
a reasonable cost to the Approved Agent as determined by
ExpressVu.
v) To provide the Service (other than Pay and Pay Per View movies)
for demonstration purposes within the Premises.
vi) To activate qualified Subscribers referred to ExpressVu by the
Approved Agent in accordance with their programming request.
ExpressVu reserves the right to refuse to activate certain
Subscribers at its discretion.
vii) To loan to the Approved Agent, at no cost, an interior sign which
designates the Distribution Business as an approved authorized
ExpressVu Approved Agent.
viii) To adhere to the highest standards, honesty, integrity, fair
dealing, and ethical conduct in all dealings with its Customers,
suppliers and dealers.
SECTION 6. ADVERTISING. (1) PROMOTIONS AND ADVERTISING. The Approved Agent
shall participate in promotional programs, including national programs from
time to time established by ExpressVu. These promotional programs may, at
ExpressVu's option, promote the sale of hardware or the sale of the Service
and may include programs directed towards existing Subscribers.
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(2) APPROVED AGENT ADVERTISING. The Approved Agent may conduct
advertising and promotions and produce its own advertising material in
respect of the Service provided that the Approved Agent obtains the written
approval of all advertising and promotions to be used by the Approved
Agent. ExpressVu may from time to time make available to the agent
advertising lay-out and material. ExpressVu reserves the right to limit
the quantities of this material when provided free of charge to the
Approved Agent and to charge the Approved Agent a reasonable price for
certain of these materials.
(3) CO-OPERATIVE ADVERTISING. ExpressVu will provide co-operative
advertising funding to the Approved Agent according to Schedule
"A" Co-operative advertising must be approved by ExpressVu as provided in
Schedule "A" prior to publication, and must be supported by proof of
purchase and copy (tear sheet) when claiming approved reimbursement from
ExpressVu. The Approved Agent shall comply with all guidelines outlined in
the Manual with respect to co-operative advertising.
SECTION 7. TRADE MARKS. (1) The Approved Agent acknowledges that all trade
marks associated with the Service and all goodwill associated with the
trade marks or the Service are the exclusive property of ExpressVu.
(2) The Approved Agent shall not use any of the trade marks as
any part of its corporate, firm or business name(s), and may only use such
of the trade marks and in such manner and for such purpose as ExpressVu may
approve from time to time in writing.
(3) The Approved Agent shall not, either directly or indirectly,
dispute or contest the validity or enforceability of any of the trade
marks, attempt any registration thereof, or attempt to dilute the value of
any goodwill attaching to the trade marks or the Service. The Approved
Agent shall immediately notify ExpressVu of any infringement of or
challenge to the Approved Agent's use of the trade marks. This obligation
shall survive any termination of this Agreement.
SECTION 8. COMMISSIONS: PAYMENT OF COMMISSIONS. ExpressVu will pay to the
Approved Agent the commissions defined, calculated and determined in
accordance with Schedule "A".
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SECTION 9. PRODUCT PURCHASE AGREEMENT. The Approved Agent shall enter into
a product purchase agreement for products compatible with the Service from
Tee-Comm Electronics Inc. or any other vendor designated as an authorized
manufacturer or wholesaler by ExpressVu.
SECTION 10. GENERAL PROVISION. The Standard Terms and Conditions attached
as Schedule B are fully incorporated into this Agreement.
IN WITNESS WHEREOF the parties hereto have caused this Agreement
to executed as follows:
ExpressVu INC.
Per: /s/
---------------------------------
Authorized Signing Officer
Per: /s/
---------------------------------
Authorized Signing Officer
[APPROVED AGENT]
The Approved Agent
Per: /s/
---------------------------------
with the consent of Authorized Signing Officer
ExpressVu shall be
designated as (check one Per: /s/
and initial): ---------------------------------
Authorized Signing Officer
Exclusive Agent X
________
Non-Exclusive Agent ________
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SCHEDULE A
EXPRESSVU INC.
APPROVED AGENT AGREEMENT
COMMISSIONS, ADVERTISING, ETC.
------------------------------
1. COMMISSIONS. Commissions payable to the Approved Agent in respect of
programming for Subscribers subject to Activation shall be calculated and
determined as set out below, provided, however, that for competitive market
reasons, commissions with respect to promotions may be varied by ExpressVu
from time to time. ExpressVu will give the Approved Agent no less that
sixty (60) days notice of changes or additions to commission percentages or
structure. Upfront commissions will be paid to the Approved Agent thirty
(30) days after confirmed Subscriber Activation and 'Residual Commissions'
shall be paid to the Approved Agent quarterly, thirty (30) days after the
end of each calendar quarter. Commissions will only be payable on
receivers activated by the Approved Agent or their authorized employees.
1.1 UP-FRONT ACTIVATION COMMISSIONS- EXCLUSIVE APPROVED AGENTS. With
respect to each Activation, an "Up-Front Activation Commission" of Twenty-
five Dollars ($25.00) will be paid to Exclusive Approved Agents. No
"Up-Front Activation Commission" will be paid to Approved Agents who sell
other small dish products not compatible to the digital ExpressVu System.
1.2. RESIDUAL COMMISSIONS - EXCLUSIVE APPROVED AGENTS. ExpressVu shall
also pay "Residual Commissions" to the Exclusive Approved Agent, in
accordance with this Agreement (based upon the calendar year in which the
Activation occurs) commissionable revenues in the case of all programming
packages and subscriptions to the ExpressVu Programming Guide, but
excluding Pay Per View, of five percent (5%) annally for three (3) years
from the date of Activation.
1.3. PERFORMANCE CRITERIA - EXCLUSIVE APPROVED AGENTS. (1) Provided that
the Exclusive Approved Agent (i) has fulfilled all other terms and
conditions of the Agreement, and (ii) and meets minimum Activation targets,
to be determined, in each twelve (1 2) months of operations, ExpressVu
agrees to pay the Commission set out in Section 1.2.
1.4. SPECIAL PRIVILEGES TO EXCLUSIVE APPROVED AGENTS. In addition to the
above Commissions, Exclusive Approved Agents will be entitled to the
following privileges:
(i) Inclusion of Exclusive Approved Agent name, address and telephone
number in retail advertisements placed from time to time by ExpressVu
at no cost to the Exclusive Approved Agent.
(ii) Participation in certain value-added incentive programs.
(iii) Higher allowances on rebateable cooperative advertising as determined
by ExpressVu.
(iv) Certain discounts on sales aids, brochures, premium items and other
sales assistance materials.
(v) Participation in sales incentive programs.
1.5 RESIDUAL COMMISSIONS - NON - EXCLUSIVE APPROVED AGENTS. ExpressVu
shall pay to the Non-Exclusive Approved Agent commissions in accordance
with this Agreement (based upon the calendar year in which Activation
occurs), commissionable revenues in the case of all programming packages
and subscriptions to the ExpressVu Programming Guide, but excluding Pay Per
View, of three percent (3%) annually for three (3) years from the date of
Activation.
1.6. PERFORMANCE CRITERIA - NON-EXCLUSIVE APPROVED AGENTS (1) Provided
that the Non-Exclusive Approved Agent (i) has fulfilled all other terms and
conditions of the Agreement; and (ii) meets minimum Activation targets, to
be determined, in each twelve (12) months of operation, ExpressVu agrees to
pay the commission set out in Section 1.5.
(2) ExpressVu may, at its absolute discretion, change the annual
Activation target for each year after 1996 and change the quarterly
allocation of such annual targets once per year upon thirty (30) days
written notice to the Non-Exclusive Approved Agent
1.7. EFFECT OF TERMINATION ON COMMISSIONS: In the event of termination of
the Agreement for any reason, all of ExpressVu's obligations to pay
"Residual Commissions" and any bonus commissions to Approved Agents shall
cease immediately.
1.8. EFFECT ON COMMISSIONS OF RATE PLAN CHARGES. A change in a Subscribers
basic monthly rate plan may result in a change to commissions payable to
the Approved Agent if the Approved Agent is receiving "Residual
Commissions" paid annually.
"Residual Commissions" will be paid based on the plan changed to in
accordance with this Schedule as at the date of change, except that if
Residual Commissions' have already commenced, they will continue unchanged.
2. CO-OP ADVERTISING PROGRAM.
ExpressVu shall accrue to the benefit of the Approved Agent, for its
use in advertising the Service, five dollars ($5.00) per Activation. Terms
and conditions regarding eligible activities, claim and payment procedures
are detailed in the Manual.
3. PAYMENTS WITH RESPECT TO PROMOTIONS.
Notwithstanding anything else contained in this Schedule or the
Agreement, ExpressVu shall have the right for competitive and/or market
reasons to change the commission structure and/or to reduce any commissions
payable to the Approved Agent with respect to services which are specially
priced for specific promotions implemented by ExpressVu from time to time.
SCHEDULE B
EXPRESSVU INC.
APPROVED AGENT AGREEMENT
STANDARD TERMS AND CONDITIONS
-----------------------------
SECTION 1. RELATIONSHIP: This Agreement does not constitute the Approved
Agent as a partner, joint venturer, servant or employee of ExpressVu. The
Approved Agent shall have no authority to bind ExpressVu in any respect and
shall not hold itself out as having that authority. The Approved Agent
shall not hold itself out as owned by or associated with ExpressVu other
than as an independent Approved Agent authorized to sell the Service on the
terms and conditions of this Agreement.
SECTION 2. PRODUCTS. ExpressVu may at any time change the content or the
pricing of the Service.
SECTION 3. SALE, ASSIGNMENT AND/OR TRANSFER. The Approved Agent may not
assign this Agreement or any of the Approved Agent's rights or obligations
without the prior written consent of ExpressVu.
SECTION 4. CONFIDENTIALITY. 1
(1) The Approved Agent acknowledges that the Manual is loaned to the
Approved Agent and shall at all times remain the sole and exclusive
property of ExpressVu and, upon the expiration or termination of this
Agreement for any reason whatsoever, the Approved Agent shall return the
Manual to ExpressVu immediately. The Approved Agent shall at no time make
copies of the Manual.
(2) The Manual and all other confidential information provided by ExpressVu
to the Approved Agent is provided on a confidential basis. The Approved
Agent shall maintain the confidentiality of all such confidential
information. The Approved Agent shall not disclose any confidential
information to any person except those with a "need to know" to enable the
Approved Agent to conduct their business, except with ExpressVu's specific
prior written authorization. The obligations of the Approved Agent under
this Section 4 shall survive any termination of this Agreement.
SECTION 5. TERMINATION, (1) Either party may terminate this Agreement at
any time by giving the other party sixty (60) days written notice to that
effect.
(2) Notwithstanding Section 5 (1) ExpressVu may terminate this Agreement
at any time with written notice:
(i) If the Approved Agent is in breach of its obligations under this
Agreement and has failed to remedy this breach within thirty (30)
days of having received written notice.
(ii) If the Approved Agent has persistently breached its obligations under
this Agreement.
(iii) If the Approved Agent ceases to conduct its operation in the normal
course of business.
(iv) If the Approved Agent is convicted of any criminal or quasi criminal
offense including fraud, misleading advertising and other sales
related offenses.
(v) If there is a change in ownership of the Approved Agent
(vi) Where the Approved Agent fails to use its best effort to maximize
market penetration for the Service in the area serviced by the
Approved Agent.
(vii) If the Approved Agent knowingly uses or knowingly allows others to
use the Service for unauthorized applications.
(viii) Where the Approved Agent copies or pirates or knowingly permits
others to copy or pirate the Service or modifies or knowingly
permits others to modify receivers without the permission of
ExpressVu.
Upon termination, the Approved Agent must immediately cease to market the
Service and return to ExpressVu the Manual and all other information, data
and materials provided to the Approved Agent by ExpressVu. Should
ExpressVu not request the return of this material, the Approved Agent shall
immediately destroy its material at it own cost.
SECTION 6. EFFECT OF TERMINATION. If this Agreement is terminated for any
reason:
i) ExpressVu may immediately deactivate all signals to the receiver
assigned to the Approved Agent for demonstration purposes.
ii) ExpressVu shall not be liable to the Approved Agent for compensation
or damages of any kind, whether for loss of profits or anticipated
profits or on account of expenditures, investments or commitments
made in connection with this Agreement, or on account of any other
thing or cause
SECTION 7. NOTICES. All Notices, consents, approvals, statements,
authorizations, documents or other communications required or permitted to
be given hereunder shall be in writing and shall be delivered personally,
sent by telecopier or mailed by registered mail, postage prepaid at the
addresses set forth hereunder namely if to ExpressVu at 0000 Xxxxxxx
Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxx, X0X 0X0. ATTENTION: VICE
PRESIDENT, SALES AND MARKETING FAX NUMBER: (000) 000-0000
SECTION 8. WAIVER AND AMENDMENTS. No waiver or amendment hereunder shall
be effective unless in writing.
SECTION 9. GENERAL PROVISIONS. If for any reason whatsoever, any term or
condition of this Agreement or the application to any party or circumstance
is to any extent invalid or unenforceable. all other terms and conditions
of the Agreement and/or the application of such terms and conditions to
parties or circumstances shall not be affected thereby and shall be
separately valid and enforceable to the fullest extent permitted bylaw.
SECTION 10. LIMITATION OF LIABILITY. ExpressVu shall not be liable to the
Approved Agent or to any customer of the Approved Agent for any
interruption in the Service or any change in the content or pricing of the
Service.
SECTION 11. INDEMNITY. The Approved Agent agrees to indemnify ExpressVu
and to hold it harmless for and against all loss, claims, demands, actions
and causes of action, including legal fees and disbursements, which
ExpressVu may suffer or incur as a result of any claim, action or
proceeding arising out of the breach of any obligation of Approved Agent
under this Agreement or arising out of the actions or omissions of the
Customers of the Approved Agent and arising out of the actions or omissions
on the part of the Approved Agent, its employees or its Agents.
