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EXHIBIT 10.18
MOTOROLA AUTHORIZED TWO-WAY RADIO DEALER AGREEMENT
This Motorola Authorized Two-Way Radio Dealer Agreement including its
attachments ("Agreement") is made and entered into as of the Agreement Date, as
defined below, at Schaumburg, Illinois, by and between MOTOROLA, INC., a
Delaware Corporation having its principal place of business at 0000 X.
Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("Motorola") and BearCom Operating
L.P., a Partnership of the State of Texas having its principal place of
business at 00000 Xxxxxxxx Xxxx, Xxxxxx, XX 00000 ("Dealer").
WHEREAS, for many years Motorola has sold certain communications products
through a direct sales force of Motorola employees, which it has developed and
supported at great expense; and
WHEREAS, Motorola intends to continue direct distribution to customers of
communications equipment and services which because of business or
technological reasons should, in Motorola's judgment, be served by Motorola; and
WHEREAS, Motorola also desires to expand its distribution system to include
Dealer and other resellers to solicit other customers and develop other markets.
THEREFORE, it is hereby agreed as follows:
1. TERM
The initial term of this Agreement shall commence as of the Agreement Date and
shall continue for an initial term which expires on December 31 of the calendar
year that the Agreement Date occurs in, unless sooner terminated as provided in
this Agreement. Thereafter, this Agreement shall renew automatically for
successive one-year additional terms unless a written notice of non-renewal is
sent by either party no less than thirty (30) days prior to the expiration date
of the initial or successive term or unless otherwise terminated pursuant to
the terms of this Agreement.
Nothing contained in this Agreement shall be deemed to create any express or
implied obligation on either party to renew or extend this Agreement or to
create any right to continue this Agreement on the same terms and conditions
contained herein. Dealer understands that Motorola intends to review its
distribution strategy and the terms and conditions of this Agreement on an
ongoing basis.
2. PRODUCTS, PRICES, RETAIL SALE ONLY, FINDER FOR SELECTED SERVICES AND DEALER
LOCATION
(a) During the term of this Agreement, Dealer agrees to purchase and Motorola
agrees to sell, in accordance with the terms and conditions of this Agreement,
selected Motorola manufactured and non-Motorola manufactured communications
products ("Products") as listed in the then current Motorola Authorized Two-Way
Radio Dealer Price Book ("Dealer Price Book").
(b) Motorola appoints Dealer as a finder, in accordance with the terms and
conditions of this Agreement for the sale of Motorola network services contracts
("Networks Services") and Motorola maintenance service agreements
("Maintenance").
(c) As further consideration for Motorola entering into this Agreement, Dealer
shall promptly refer all inquiries and leads concerning other Motorola products
and services not listed in the Dealer Price Book to such Motorola office as may
be designated by Motorola.
(d) The Dealer Price Book and Attachment B-Finder's Terms will be published by
Motorola from time to time to keep Dealer informed about products and services
available, current prices of those products and services to Dealer, available
discounts, delivery schedules and other terms and conditions of sale and doing
business with Motorola. Dealer agrees that the entire contents of the Dealer
Price Book and Attachment B-Finder's Terms are subject to change or withdrawal
at any time at the sole discretion of Motorola and, when written notice of said
changes or withdrawals has been sent to Dealer by Motorola, all earlier
inconsistent or withdrawn contents shall be automatically superseded from and
after the effective date stated in such notices. Motorola may withdraw or change
the Dealer Price Book and Attachment B-Finder's Terms and the design or
specifications for the Products, at any time, in any way, without liability or
obligations to Dealer or its customers.
(e) Dealer specifically acknowledges the existence of other products, product
lines and services of Motorola and agrees and consents to the limitation of this
Agreement solely to the Products, Network Services, and Maintenance as listed in
the Dealer's Price Book and Attachment B-Finder's Terms. Dealer also
specifically acknowledges that Motorola distributes various products and
services by other contractual relationships, and Dealer agrees that nothing
contained in this Agreement shall be deemed to create any express or implied
obligation on Motorola to establish any such other contractual relationship with
Dealer.
(f) Dealer agrees to limit its distribution of the Products purchased under
this Agreement to direct sale by Dealer to customers at retail for end use as
limited by the terms and conditions of this Agreement. Dealer shall sell the
Products and offer Network Services and Maintenance only from the Dealer's
location written above or such other location as is expressly authorized, in
writing, by an authorized Motorola Division General Manager. Dealer shall not
appoint any sales agent or representative (other that its employees) in
connection with the performance of this Agreement; provided, however, Motorola,
in its sole discretion upon a duly executed amendment to this Agreement, may
allow Dealer to appoint specified agents to seek sales of the Products within
Dealer's Area and promotion of Network Services and Maintenance where defined in
Attachment B-Finder's Terms.
3. SUPPLEMENTARY TERMS AND CONDITIONS, PASS THROUGH PROVISIONS
Dealer agrees that the Supplementary Terms and Conditions contained in
Attachment C are incorporated into this Agreement by this reference. Dealer
acknowledges that certain of the provisions contained in Attachment C are, by
their sense and context, intended for the end user customer who will acquire one
or more of the Products from Dealer. For each such provision in Attachment C,
Dealer agrees that both prior to and as part of each transaction between it and
its customer, Dealer will notify its customer of the specific requirements,
rights, duties and limitations contained in the Warranty/Warranty Disclaimer,
Software License and Software Warranty/Warranty Disclaimer, Patent, Copyright
and Trademarks, FCC and Other Governmental Matters provisions in Attachment C,
and any other provisions Motorola may from time to time notify Dealer are
required.
4. DEALER A NON-EXCLUSIVE DEALER
Dealer is non-exclusive dealer. Dealer specifically acknowledges the right of
Motorola in Motorola's sole and unrestricted discretion, without any liability
or obligation to Dealer, to appoint additional dealers or finders and/or make
direct or indirect sale or distribution of any Motorola products or services,
similar or dissimilar, or any non-Motorola products or services in Dealer's
defined area of primary marketing responsibility and elsewhere, anytime and to
anyone.
5. CONFIDENTIALITY
During and for three years after the termination or expiration of this
Agreement, Dealer shall maintain in strict confidence all information disclosed
to Dealer by Motorola or others, including, but not limited to, the contents of
Dealer's Price Book and Attachment B-Finder's Terms and all revisions thereof,
all price and marketing information, customer lists, drawings, technical
information and data, and other information of any nature relating to all
Motorola products and services or the sale or distribution thereof. All
information disclosed by Motorola hereunder and information Dealer obtains in
connection with this Agreement shall be used solely in furtherance of the
distribution of Motorola Products and services.
6. AREA OF PRIMARY MARKETING RESPONSIBILITY FOR PRODUCTS
Dealer agrees that its defined role in Motorola's distribution system is
necessary in order to encourage Motorola, Dealer, and Motorola's other dealers,
distributors and resellers to make the distribution efforts necessary to expand
Motorola's distribution of Products and to provide the highest levels of
customer satisfaction. Accordingly, Dealer agrees to use its best efforts to
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(5) any untrue statement of a material fact, or omission to state a
material fact in any communication provided by Dealer to anyone in
connection with this Agreement, its terms, conditions or amounts, the
performance of this Agreement or any Motorola products or services
referred to by this Agreement;
(6) Dealer's engaging in any act or failure to act related to the subject
matter of this Agreement which is determined to be illegal or an
unfair or deceptive trade practice in violation of any applicable
federal, state or local law, or which in the opinion of counsel to
Motorola constitutes such an illegal, unfair, or deceptive act or
practice;
(7) any unauthorized use by Dealer or any sales agent or representative in
connection with the performance of this Agreement;
(8) receipt of customer complaints which, in Motorola's sole opinion,
indicate that Dealer is not achieving Motorola's standards of total
customer satisfaction;
(9) Dealer's failure to conduct its business in an ethical manner as
required by Paragraph 8.-Ethical Practices.
12. EFFECT OF TERMINATION OR EXPIRATION
IF THIS AGREEMENT IS TERMINATED OR EXPIRES, OR IF MOTOROLA CANCELS ANY OF
DEALER'S ORDERS FOR THE PRODUCTS WHICH REMAIN UNDELIVERED ON THE EFFECTIVE DATE
OF ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT, EACH SUCH ACT OR OCCURRENCE,
AS APPLICABLE, IN AND OF ITSELF OR IN COMBINATION, CANNOT OPERATE TO CREATE A
CLAIM IN DEALER AGAINST MOTOROLA FOR ANY DAMAGES WHATSOEVER (INCLUDING, BUT NOT
LIMITED TO, ANY CLAIM FOR LOSS OF PROFITS OR PROSPECTIVE PROFITS) WHICH ARE IN
ANY WAY RELATED TO THE SALE OR PURCHASE OF PRODUCTS OR SERVICES UNDER THIS
AGREEMENT.
(b) All sums owed by either party to the other shall become due and payable
immediately upon termination or expiration of this Agreement.
(c) Upon termination or expiration of this Agreement, Dealer shall, within five
(5) working days of such termination or expiration, deliver to such address as
Motorola shall specify all Motorola property, including, but not limited to, all
equipment, customer data, software items, catalogs, drawings, designs,
engineering photographs, samples, literature, sales aids and any confidential
business information and trade secrets of Motorola in Dealer's possession along
with all copies.
(d) Upon termination or expiration of this Agreement, Motorola shall be
relieved of any obligation to make any further shipments under this Agreement
and, with respect to termination, may cancel all of Dealer's unshipped orders
for the Products, irrespective of previous acceptance by Motorola. Motorola
shall have no obligation or liability to Dealer, its prospective customers or
any other party in connection with any such cancellations.
(e) Motorola's acceptance of any order by Dealer for Products or customer order
submitted by Dealer for Network Services or Maintenance after the termination
or expiration of this Agreement shall not be construed as a renewal or
extension of this Agreement, nor as a waiver of termination or expiration of
this Agreement.
(f) The terms, provisions, representations and warranties contained in this
Agreement that by their sense and context are intended to survive the
performance thereof by either or both parties shall so survive the completion
of performances and termination or expiration of this Agreement, including
without limitation the making of any and all payments due under this Agreement.
13. OPTION TO REPURCHASE PRODUCTS
(a) Upon any termination or expiration of this Agreement, Dealer shall notify
Motorola in writing of its currently existing inventory of Products and Motorola
shall have the option, but not the obligation, to repurchase on the basis of
last purchased by Dealer being the first repurchased by Motorola, all or any
part of Dealer's remaining inventory of Products at the net price paid to
Motorola for such inventory or Motorola's price for such Products to its other
dealers at the time of such repurchase, whichever is lower. Said option may be
exercised upon written notice to Dealer mailed within fourteen (14) days
following the receipt by Motorola of Dealer's written inventory report. Upon
exercise of said option to repurchase, Motorola and Dealer shall take an
inventory of all Products in control of Dealer.
(b) Upon any termination or expiration of this Agreement, prior to selling
Products in its control to any third party, Dealer shall first have offered in
writing to sell such Products to Motorola for the lower of Dealer's net
purchase price or the price offered by such third party, and Motorola shall
have refused to accept such offer within ten (10) days after receipt thereof.
(c) In the event Motorola exercises its option to repurchase all or any part of
Dealer's inventory of Products, Dealer hereby agrees to sell such inventory to
Motorola as the date of termination or expiration of this Agreement, and to
deliver the same immediately upon such termination, at Motorola's sole cost and
expense, to such place(s) as Motorola shall designate, free and clear of any
liens or encumbrances thereon, undamaged and in the original and unopened
packaging therefor.
(d) Motorola shall pay Dealer for the inventory of Motorola Products
repurchased within thirty (30) days after receipt of said Motorola Products by
Motorola. Motorola shall have the right to offset against any monies payable
hereunder for repurchased Products any monies that are due and owing from
Dealer to Motorola as of the date any such payment is due.
14. MOTOROLA FINDER FOR DEALER NETWORK SERVICES
If Dealer owns or manages any communications Network Services systems, such as
SMRs and CRs, within the United States, Dealer appoints Motorola, subject to
Motorola's express written acceptance, as a finder for such services under the
same terms and conditions under which Dealer is a finder for Motorola of
Network Services under this Agreement.
15. WAIVER
The failure of either party to insist in any one or more instances upon the
performance of any of the terms, covenants, or conditions in this Agreement or
to exercise any right under this Agreement, shall not be construed as a waiver
or relinquishment of the future performance of any such term, covenant, or
condition or the future exercise of any such right, and the obligation of each
party with respect to such future performance or future exercise of any such
right shall continue in full force and effect.
16. MOTOROLA COMMUNICATION PRODUCTS
RESELLER AGREEMENT TERMINATED
In consideration of Motorola entering into this Agreement, Dealer agrees
that any existing Motorola Communication Products Reseller agreement between
Dealer and Motorola for the sale of Motorola branded products is terminated
upon the execution of this Agreement in accordance with all the terms and
conditions of any such Motorola Communication Products Reseller agreement. Any
software license agreements between Dealer and Motorola entered into in
connection with such Reseller agreement are also terminated.
17. LIMITATIONS
(1) LIMITATION OF LIABILITY. EXCEPT FOR PERSONAL INJURY AND EXCEPT AS PROVIDED
FOR IN ATTACHMENT C IN THE SECTION "PATENT, COPYRIGHT AND TRADEMARKS",
MOTOROLA'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER
FOR BREACH OF CONTRACT, WARRANTY, MOTOROLA'S NEGLIGENCE, STRICT LIABILITY IN
TORT OR OTHERWISE, IS LIMITED TO THE PRICE OF THE PARTICULAR PRODUCTS SOLD
HEREUNDER WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. DEALER'S SOLE
REMEDY IS TO REQUEST MOTOROLA AT MOTOROLA'S OPTION TO EITHER REFUND THE
PURCHASE PRICE, OR REPAIR OR REPLACE PRODUCTS THAT ARE NOT AS WARRANTED. IN NO
EVENT, WHETHER FOR BREACH OF CONTRACT, WARRANTY, MOTOROLA'S NEGLIGENCE, STRICT
LIABILITY IN TORT, OR OTHERWISE, WILL MOTOROLA BE LIABLE FOR INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, FRUSTRATION OF
ECONOMIC OR BUSINESS EXPECTATIONS, LOSS OF PROFITS, LOSS OF DATA, COST OF
CAPITAL, COST OF SUBSTITUTE PRODUCT(S), FACILITIES OR SERVICES, DOWNTIME COST
OR ANY CLAIM AGAINST DEALER BY ANY OTHER PARTY.
(2) INSURANCE. IT IS FURTHER UNDERSTOOD THAT MOTOROLA IS NOT AN INSURER AND
THAT DEALER SHALL OBTAIN ALL INSURANCE REQUIRED BY THIS AGREEMENT AND THAT
MOTOROLA DOES NOT REPRESENT OR WARRANT THAT MOTOROLA PRODUCTS WILL AVERT OR
PREVENT OCCURRENCES, OR THE CONSEQUENCES THEREFROM, WHICH ARE MONITORED,
DETECTED OR CONTROLLED WITH USE OF THE PRODUCTS.
(3) TIME TO XXX. EXCEPT FOR MONEY DUE UPON AN OPEN AC-
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DEALER NAME: BEARCOM OPERATING LP
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CITY, STATE: DALLAS, TX
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AGREEMENT DATE: 6-12-96
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REVISION DATE:
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