EXHIBIT 10.39
VENDOR AGREEMENT
Effective Date: September 27, 2005.
THIS VENDOR AGREEMENT (the "Agreement") is made and entered into by and between
Best Buy Purchasing LLC, a Minnesota corporation ("Best Buy"), having its
principal office at 0000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx, 00000, U.S.A.,
and Clearwire LLC, a Nevada limited liability company ("Vendor"), having its
principal office at 0000 Xxxx Xxxxxxxxxx Xxxx. XX #000, Xxxxxxxx, XX 00000.
WHEREAS, This Agreement is intended to set forth the terms and conditions
applicable to the order, shipment and delivery of certain equipment by Vendor to
Best Buy and distribution of such equipment by Best Buy and its designated
affiliates. The parties agree that certain terms of this Agreement are only
applicable to the purchase of goods from Vendor and the marketing and resale of
such goods by Best Buy should the parties at some point agree to such purchase
and resale relationship.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereby agree as follows:
1. LICENSE TO DISTRIBUTE EQUIPMENT
1.1 Appointment of Authorized Dealer. Vendor appoints Best Buy and each of its
affiliates designated to Vendor in writing (collectively, "Dealer") as an
authorized dealer to provide for the Marketing and sale of Vendor Services and
the sale or lease of Equipment through Dealer's Sales Channels in accordance
with the terms and conditions set forth in the Subscription Service Addendum
attached hereto and incorporated herein by this reference (the "SSA").
Capitalized terms not otherwise defined in this Agreement shall have the meaning
ascribed to such terms in the SSA. To the extent of any inconsistency between
the terms of this Agreement and those in the SSA related to the marketing and
sale of Vendor Services, the terms of the SSA shall control. The designated
affiliates will include Best Buy Stores, L.P., and XxxxXxx.xxx, Inc., or as
updated from time to time upon notice to and consent of Vendor ("Affiliates").
1.2 Territory. Vendor grants Dealer a non-exclusive license to distribute the
Services and Equipment (collectively "Products"), to Members in the United
States (and its territories) or other geographic areas as mutually agreed in a
writing signed by Vendor and Dealer from time to time through Dealer's Sales
Channels and Selected Dealer Stores all in accordance with the SSA.
2. PRICING AND TAXES
2.1 Prices. Vendor will sell the Products to Dealer at the prices then in effect
on its current price list, as may be changed from time to time, or as otherwise
agreed between the parties. [***] Vendor's prices do not include sales, use,
excise, or similar taxes.
2.2 Taxes. The amount of any valid present or future sales, use, excise, or
other similar tax that is attributable to purchase or delivery of the Products
will be paid by Dealer; or in lieu thereof, Dealer will provide Vendor with a
tax exemption certificate acceptable to the taxing authorities.
2.3 No Minimum Purchase Requirement. Dealer shall have no obligation or
liability to purchase or distribute all or any particular volume of any type of
Products or parts from the Vendor; and (ii) Dealer does not guarantee, and is
not obligated to issue, any particular number or type of purchase orders with
the Vendor. Dealer shall not be liable to the Vendor for loss of business or
revenues, or excess inventory, if Dealer's distribution of the Products does not
meet the Vendor's expectations.
3. PURCHASE ORDERS
Orders for Vendor's Products will be initiated by Dealer no later than ten (10)
days before the shipment date by electronic purchase orders submitted by Dealer
and will govern the shipment and delivery of Products upon acceptance by Vendor,
provided that Dealer reserves the right to cancel a purchase order at any time
prior to the shipment date. Vendor will be deemed to have accepted a purchase
order if Vendor fails to reject the purchase order by notifying Dealer within
forty-eight (48) hours of its receipt thereof, not including weekends and
nationally recognized holidays. Dealer will use commercially reasonable efforts
to provide Vendor with periodic forecasts of Dealer's anticipated inventory
requirements for Product.
4. PAYMENT
4.1 Invoices. All Vendor invoices or other evidence of Dealer's orders will be
sent via Electronic Data Interchange (EDI) to Dealer no earlier than the Product
shipment date in connection with each accepted and fulfilled purchase order.
Dealer will pay amounts due in each such invoice pursuant to the credit terms
established by the parties, which will be set forth in the SSA attached as an
addendum hereto, as further described in Section 10. The designated credit term
will commence on the later of (a) the date Dealer receives Products at the FOB
point specified in Section 5, or (b) the date Dealer is authorized to resell the
applicable Products, i.e. the "street date." Payment will not be considered late
by Vendor for purposes of calculating early payment discounts if payment is sent
by Dealer within one (1) week of the due
[*** Confidential Treatment Requested]
date or if payment is delayed because of an EDI communication failure or due to
an indebtedness of Vendor to Dealer. No interest or other charges will be
payable by Dealer upon this Agreement, or any resulting invoice, whether claimed
by reason of late payment or otherwise. All transactions will be valued and paid
in United States currency.
4.2 [***]
4.3 Statement of Account. From time to time upon request by Dealer, Vendor will
provide a complete statement of account that will include but not be limited to
unpaid invoices and disputed deductions. Such statement of account will also
disclose all credit memos issued and outstanding. The statement of account will
be forwarded by electronic mail in spreadsheet format or by regular mail per
Dealer's instructions. Statements for merchandising/inventory accounts will be
separate from any statement of account for parts purchased by Dealer for Product
service and out-of-warranty repairs.
4.4 Debit Balances. If Vendor is indebted to Dealer but there is no outstanding
balance due to Vendor, Vendor will pay the amount due to Dealer via check or
wire transfer in full within thirty (30) days of receipt of notification thereof
from Dealer. Dealer reserves the right to charge Vendor interest at the rate of
1.5% per month for any debit balance not paid within such time. If the amount in
question is disputed, the parties agree to work in good faith to reconcile the
matter so that payment to Dealer of any undisputed amount will be made within
sixty (60) days of Dealer's original notice to Vendor. In no event will Dealer
be obligated to take a credit against future purchases.
5. SHIPPING
5.1 Shipping Terms: The parties hereby agree to the ground shipment terms
selected below:
[X] FOB Destination, Freight Prepaid by Vendor. Vendor will be responsible for
carrier selection and routing instructions. Vendor will pay all costs and
expenses incurred prior to the FOB point, including without limitation,
insurance, freight, and any notification, sort and segregation charges.
Unless otherwise agreed, title remains with Vendor and Title risk of loss
passes to Dealer upon delivery at the destination specified by Dealer,
which may include but is not limited to its stores, distribution centers,
and third-party fulfillment providers. Vendor is encouraged to utilize
Dealer's preferred carriers to improve on-time performance, minimize
transit times and reduce the need for expedited shipments.
[ ] FOB Origin, Freight Collect and Allowed. Dealer will be responsible for
carrier selection, routing instructions and pick-up appointments at
Vendor's domestic origin facility. In addition, Dealer is responsible for
carrier freight payments, submitting freight claims for loss and damage,
scheduling appointments at destination, and tracking and tracing freight
in transit. Title and risk of loss passes upon delivery at Vendor's
domestic origin shipping dock. Vendor agrees to have Products in
ship-ready condition on the ship date specified in the applicable purchase
order and provide forty-eight (48) hour notice of pick-up request to
Dealer. The attached Collaborative Transportation Agreement, as amended
from time to time by the parties, if applicable, contains additional terms
that define the parties' responsibilities under this shipping arrangement.
5.2 Time is of the Essence. TIME IS OF THE ESSENCE OF THIS AGREEMENT WITH
RESPECT TO THE SPECIFIED DATES FOR SHIPMENT OF PRODUCT.
5.3 Expedited Shipments. Vendor will pay any additional freight expenses
incurred in connection with an expedited shipment arising from a shipment delay
or other cause attributable to Vendor.
5.4 Other Charges. Any charges related to special requests of Vendor to carrier,
including loading assistance, detention, or any other instructions, prior to
title passage, will be the responsibility of the Vendor.
5.5 Direct Import Addendum. Terms relating to Products that are imported by
Dealer, if applicable, are set forth in the attached Direct Import Addendum,
which is incorporated herein by reference.
6. PRICE PROTECTION; NOTICE OF PRICE INCREASES. The parties agree and
acknowledge that this Section 6 is applicable only to Products purchased by
Dealer from Vendor.
6.1 Price Protection. [***] Dealer will submit a cost adjustment claim to Vendor
that is supported by documentation that reflects Dealer's inventory records of
Product subject to price protection credit.
[*** Confidential Treatment Requested]
6.2 Notice of Price Increases. Except as otherwise agreed, Vendor will give
Dealer ninety (90) days prior written notice to Dealer of the effective date of
any price increases. A price increase will not affect Dealer's cost on a
purchase order accepted by Vendor prior to the effective date of such price
increase.
7. RETURNS
7.1 Return Rights. Dealer will have the right to return for full credit or
refund of Dealer's cost any Products (a) against which an allegation is made
that the use of such Products infringes on any patent, trademark, trade secret,
copyright, right of privacy or publicity, or any other tangible or intangible
proprietary or intellectual property right; (b) that are not manufactured,
packaged, or labeled in accordance with industry standards and/or all applicable
laws, ordinances, rules, and regulations; (c) that are shipped in error or in
non-conformance with Dealer's purchase order; (d) that have caused injury to
person or property; and (e) that are damaged or Defective. Returned Products
will be shipped FOB Origin, Freight Collect from Dealer's product return center,
distribution center or stores, as the case may be.
7.2 Defective Products. For purposes of this Agreement, a "Defective" Product
means any Product that is visually or operationally defective and Product that
has been returned by a customer in accordance with Dealer's end-user return
policy. Dealer's end-user return policy allows for the return of most Products
with or without cause for a specified period after purchase, regardless of
whether the Product packaging has been opened or whether the Product is actually
defective. Dealer will promptly notify Vendor upon Dealer's discovery of any
Defective Product.
7.3 Return Procedures. If a Vendor Return Authorization is first required by
either party prior to Dealer's return of Product to Vendor, Vendor agrees to
provide a unique Return Authorization number to Dealer within forty-eight (48)
hours of Dealer's request. Vendor will allow delivery of return Product as of
the day the Return Authorization is issued to Dealer. If Vendor requires that
Dealer make an appointment to deliver returned Product, such appointment will be
provided by Vendor within three (3) days of the carrier's expected arrival time.
Upon shipment of the return Product to Vendor, Dealer will send a Return Goods
Memo (debit memo) to Vendor that references the corresponding Return
Authorization number, if any, along with quantity and dollar amounts on a per
unit basis. Dealer may thereafter deduct the total dollar amount of the return
Product from Vendor's invoice. Vendor agrees to send a credit memo to Dealer for
the amount specified in the Return Goods Memo within ninety (90) days of the
date of Dealer's deduction. Such credit memo will reference either Dealer's
Return Goods Memo number or the Return Authorization number. Product returned to
Vendor will be delivered in their original, undamaged containers, provided that
Vendor will not consider a container with a removed UPC to be damaged for
purposes of calculating the return credit if such UPC was removed by an end-user
in connection with a Vendor-sponsored rebate offer. In the event Dealer
rightfully requests a return of Products under this Agreement and Vendor fails
to timely provide a Return Authorization or accept delivery thereof, Dealer may
take any action in its sole and reasonable discretion at Vendor's expense, which
may include but is not limited to storage, liquidation or destruction of the
Products. If Vendor receives Product from Dealer that Vendor believes is
non-returnable, Vendor will return such Product to Dealer's originating Product
returns location within ninety (90) days of Vendor's determination and the
shipment cartons will reference the original return shipment's Return
Authorization number or Return Goods Memo number.
7.4 Additional Return Rights. Additional or different return rights may be
specified in a Vendor Program Agreement (e.g., stock-balancing, defective
allowances) as further described in Section 10. If the parties agree to a
defective allowance, such allowance will replace Dealer's right to return
Defective Products as provided herein, except that if the actual defective rate
for a particular Product exceeds the applicable allowance, Dealer may either
adjust the allowance accordingly or return the excess Defective Product to
Vendor for full credit or refund. A defective allowance will have no effect upon
Dealer's return rights as otherwise provided in this Agreement.
7.5 Warranty Returns; Appointment of Authorized Return Center. Vendor appoints
Dealer as an "Authorized Return Center" for the return by end-users of those
Products under a manufacturer's warranty. Except as may otherwise be agreed in a
comprehensive Product Service Agreement, which will be an addendum hereto as
further described in Section 11, Dealer will (a) receive the in-warranty Product
from the end-user, (b) provide the end-user with an in-store credit ("In-Store
Credit"), and (c) send the end-user's defective Product to Vendor after
receiving Vendor's return authorization, if required. The appointment of Dealer
as an Authorized Return Center is non-exclusive and will include all present and
future Dealer locations which Dealer designates to accept the Product returns.
This appointment of Dealer as an Authorized Return Center will survive the
expiration or termination of this Agreement to the extent necessary to satisfy
end-user warranty requests.
8. DISCONTINUED PRODUCT. The parties agree and acknowledge that this Section 8
is applicable only to Products purchased by Dealer from Vendor.
A "Discontinued Product" means any Product that Vendor has stopped manufacturing
or any Product that undergoes a material change in appearance or packaging.
Vendor agrees to provide Dealer with at least ninety (90) days advance written
notice of the occurrence of a Discontinued Product, or as soon as possible in
the event that the discontinuance is caused by actions taken by a component part
supplier of Vendor. Upon notice of such Discontinued Product, Dealer may,
without penalty or liability, cancel any outstanding purchase orders pertaining
to the Discontinued Product. With respect to Dealer's existing inventory of
Discontinued Product, Dealer may, in its sole discretion, either return such
Discontinued Product at any time to Vendor for full credit or refund, or Vendor
and Dealer will negotiate a cost markdown of such existing inventory.
9. VENDOR PERFORMANCE AND OPERATIONS STANDARDS
Other terms that are relevant to doing business with a particular operating
division of Dealer or Affiliate may be found in the Vendor Performance and
Operations Standards, which is a part of this Agreement and incorporated herein
by reference. The Vendor Performance and Operations Standards may be accessed at
Dealer's Vendor Extranet web site, xxx.xxxxxxxxxxxxxxxxx.xxx The Vendor
Performance and Operations Standards may include but is not limited to
information concerning Electronic Data Interchange (EDI), Returns Procedures,
Routing and Shipping Guides and the Shipping Performance Management Program, all
of which may be updated from time to time by Dealer upon notice to Vendor. The
terms and conditions of this Agreement shall govern in the event of any
inconsistency.
10. VENDOR PROGRAM AGREEMENT
Dealer and Vendor may agree upon certain terms from time to time concerning
matters such as Products, pricing, market development/cooperative
advertising/merchandising funds, invoice credit terms, stock rotation, volume
rebates, new store allowances, and the like. Such terms will be contained in the
SSA, which will be considered an addendum hereto, as amended from time to time
by the parties. In the event of conflict between business terms of the SSA, as
it may be amended from time to time and this Agreement, the business terms
contained in the SSA will control.
11. PRODUCT SERVICE AND WARRANTY REPAIRS
Dealer is committed to meeting its customers' high expectations concerning
post-sale service and warranty repairs. A comprehensive Product Service
Agreement between the parties may be necessary to ensure customer satisfaction.
If applicable, the attached Product Service Agreement controls the servicing and
warranty repairs of the Products and will be executed by both parties prior to
or simultaneous with the execution of this Agreement.
12. RESERVED
13. CONFIDENTIALITY
This Agreement and any information marked as confidential or, regardless of form
(written/electronic/oral) or marking, is of the nature that a reasonable person
would understand its owner would not want it disclosed to the public will be
considered to be Confidential Information and shall be governed by the terms of
the non-disclosure and confidentiality agreement executed by the parties, dated
August 30, 2005, a copy of which is attached hereto and incorporated herein by
this reference.
14. ADDITIONAL OBLIGATIONS OF VENDOR
14.1 Product Materials. Vendor will provide to Dealer, at no charge, Product
samples, adequate copies of any marketing and technical information, service
manuals, detailed Product specifications, end-user warranties and other Product
data and materials.
14.2 Training. Vendor will assist with the training of Dealer personnel on
Dealer's premises as reasonably necessary to ensure that Dealer's sales and
service personnel will be adequately knowledgeable with respect to the Products.
14.3 Compliance with Laws. Vendor will notify Dealer within ten (10) days
regarding the existence and nature of Vendor's knowledge of any possible
material non-compliance with applicable laws, or its notice of a claim from a
consumer (which, individually or in the aggregate, may reasonably be expected to
result in material liability to Vendor and/or Dealer) that a Product is
defective or does not comply with all applicable laws.
15. REPRESENTATIONS AND WARRANTIES
15.1 Vendor's Representations and Warranties. Vendor represents and warrants to
Dealer that (a) it has the authority to enter into this Agreement and to make
the Products available to Dealer for distribution in accordance with the SSA and
Equipment Agreement, free and clear of all liens, charges, encumbrances, or
other restrictions, and that the persons signing this Agreement on behalf of
Vendor are authorized to sign; (b) it will comply with all applicable federal,
state, and local laws and regulations in performing its obligations under this
Agreement, including but not limited to laws and regulations pertaining to
product design, manufacture, packaging and labeling and, if applicable,
importation and the Foreign Corrupt Practices Act; and (c) the Products are not
produced, manufactured, assembled or packaged by the use of forced labor, prison
labor or forced or illegal child labor and that the Products were not
trans-shipped for the purpose of mislabeling, evading quota or country of origin
restrictions or for the purpose of avoiding compliance with forced labor, prison
labor or child labor laws.
15.2 Dealer's Representations and Warranties. Dealer represents and warrants to
Vendor that (a) it has the authority to enter into this Agreement, and that the
persons signing this Agreement on behalf of Dealer are authorized to sign; (b)
it will comply with all applicable federal, state, and local laws; and (c) it
will exert commercially reasonable efforts to promote and distribute the
Products consistent with Dealer's obligations under the SSA and Equipment
Agreement.
16. TERM AND TERMINATION
16.1 Term. This Agreement will commence on the Effective Date and will continue
until expiration or termination of the SSA and will automatically renew on the
same terms applicable to the SSA.
16.2 Events on Termination.
(a) [***]
(b) For Cause. Upon termination of this Agreement for cause, the parties
will agree to either (i) completion by Dealer of sell-through of the remaining
Product inventory; or (ii) return of the remaining Product inventory to Vendor
at the breaching party's expense, and Dealer will receive a refund of any
purchase price at Dealer's cost for all returned Products.
17. INDEMNIFICATION
Vendor will indemnify, defend, and hold Dealer, its parent, affiliates, agents
and employees, harmless from and against any and all claims, actions,
liabilities, losses, costs and expenses arising from or in connection with [***]
Vendor agrees to pay all costs of liability, settlement and defense, including
attorney fees and costs.
Dealer will indemnify, defend, and hold Vendor, its parent, affiliates, agents
and employees, harmless from and against any and all claims, actions,
liabilities, losses, costs and expenses arising from or in connection with [***]
Vendor agrees to give Dealer prompt written notice of any claims, to tender the
defense to Dealer, and to grant Dealer the right to control settlement and
resolution. Dealer agrees to pay all costs of liability, settlement and defense,
including attorney fees and costs.
18. INSURANCE
18.1 Comprehensive / Commercial General Liability. Vendor will procure and
maintain throughout the term of this Agreement a policy of comprehensive general
or commercial general liability insurance with a combined single limit of not
less than one million dollars ($1,000,000) for each occurrence.
18.2 Workers Compensation; Automobile Liability. If Vendor's agents will be
entering Dealer's premises, Vendor will procure and maintain throughout the term
of this Agreement: (a) Workers Compensation insurance in an amount not less than
the statutory limits and (b) automobile liability insurance with a combined
single limit of not less than one million dollars ($1,000,000) for each
occurrence for personal injury, including death, and property damage.
18.3 Umbrella Coverage. Vendor will procure and maintain throughout the term of
this Agreement Umbrella coverage of not less than ten million dollars
($10,000,000).
18.4 Requirements. Vendor will supply Dealer with a Certificate of Insurance
with respect to each of the foregoing policies, except Workers Compensation,
that names BEST BUY CO., INC., ITS SUBSIDIARIES & AFFILIATES as an Additional
Insured, and which also provides that such insurance will not be canceled or
changed unless at least thirty (30) days prior written notice has been given to
Dealer. The insurance required hereunder will be issued by an insurance company
or companies authorized to do business in the United States. Vendor's insurance
will be primary and required to respond to and pay claims prior to other
coverage.
19. ASSIGNMENT
19.1 Assignment. This Agreement may not be assigned by either party without
first obtaining the other party's express written consent, which consent will
not be unreasonably withheld except in conjunction with a permitted assignment
of the SSA and Equipment Agreement.
[*** Confidential Treatment Requested]
19.2 Assignment of Accounts Receivable. If Vendor assigns payments to an
assignee/factor, Vendor understands and agrees that Vendor and the
assignee/factor will be required to sign Dealer's standard acknowledgment form
to assure Dealer that the assignee/factor understands the rights and obligations
being assigned, including the right of Dealer to make offsets.
20. AUDIT RIGHTS; CLAIMS
20.1 Audit Rights. Upon reasonable prior written notice and at reasonable times
during regular business hours, each party will have the right to audit the other
party's books and records to assure compliance with the terms and conditions of
this Agreement. If the audit reveals that a party is not performing in material
compliance with the terms of this Agreement, then, in addition to any other
legal and equitable rights and remedies available, the party not in compliance
will reimburse the other for the reasonable costs of the audit.
20.2 Claims. Except as otherwise provided in this Agreement, claims by either
party, however asserted, will be commenced within two (2) years from the date
the cause of action accrues.
21. CONFLICT OF INTEREST AND CODE OF CONDUCT POLICIES
Vendor agrees to respect and abide by Dealer's conflict of interest and code of
conduct policies, which are available at xxx.xxxxxxxxxxxxxxxxx.xxx and may be
amended from time to time by Dealer. Vendor should contact Dealer's email
hotline at xxxxxx.xxxxxxxxx@xxxxxxx.xxx for information concerning Dealer's
policies and to discuss any ethical or conduct concerns that they may have as a
result of their contact with Dealer personnel. Vendor understands and
acknowledges that Dealer's conflict of interest and code of conduct policies
address Vendor-paid travel, gifts and gratuities, offering and accepting bribes,
family members and close personal relationships involving employees of both
parties, personal investments in the other party, Vendor-sponsored charitable
and other events, Vendor product samples, Vendor promotional copies, direct
personal purchases from Vendors by Dealer employees, and awards, incentives and
other spiffs from vendors. Vendor agrees to avoid conflict of interest
situations with Dealer and to deal at arms length with Dealer. Dealer similarly
agrees to abide by Vendor's policies concerning these subject matters.
22. FORCE MAJEURE
Neither party will be in breach of this Agreement solely due to causes beyond
the control and without the fault or negligence of such party. Such causes may
include, but are not restricted to, acts of God or of a public enemy, acts of
the government in either its sovereign or contractual capacity, fires, floods,
epidemics, quarantine restrictions, strikes, freight embargoes, power failure,
or failure of the U.S. postal system, but in every case the failure to perform
will be beyond the control and without fault or negligence of the party failing
to perform. Each party will inform the other of any Force Majeure event within
five (5) business days of its occurrence.
23. NOTICES
All notices, requests, demands and other communications that are required or may
be given under this Agreement will be in writing and will be deemed to have been
duly given if hand-delivered or mailed by either registered or certified mail,
return receipt requested, or by a nationally recognized overnight courier
service, receipt confirmed. In the case of notices via first-class mail or
courier service, notices will be deemed effective upon the date of receipt.
Notices will be addressed to the parties as set forth below, unless either party
notifies the other of a change of address, in which case the latest noticed
address will be used:
Notices To Vendor: Notices To Dealer:
------------------ ------------------
Clearwire LLC Best Buy Purchasing LLC
0000 Xxxx Xxxxxxxxxx Xxxx., Xxxxx 000 0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000-0000
Attn: Chief Operations Officer Attn: Senior Vice President, Merchandising
Copy to: Legal Department Copy To: Manager, Vendor Relations
Copy To: General Counsel, Legal Department
24. GENERAL
24.1 Relationship of the Parties. The relationship between the parties will be
that of independent contractor. Nothing herein will be construed as creating or
constituting the relationship of employer/employee, franchiser/franchisee,
principal/agent, partnership, or joint venture between the parties.
24.2 Governing Law; Jurisdiction. This Agreement will be governed by and
interpreted under the laws of the State of New York.
24.3 Enforceability. If any provision of this Agreement is held to be
unenforceable by a court of competent jurisdiction, such provision will be more
narrowly and equitably construed so that it becomes legal and enforceable, and
the entire Agreement will not fail on account thereof and the balance of the
Agreement will continue in full force and effect.
24.4 No Waiver. Any of the provisions of this Agreement may be waived by the
party entitled to the benefit thereof. Neither party will be deemed, by any act
or omission, to have waived any of its right or remedies hereunder unless such
waiver is in writing and signed by the waiving party, and then only to the
extent specifically set forth in such writing. A waiver with reference to one
event will not be construed as continuing or as a bar to or waiver of any other
right or remedy, or as to a subsequent event.
24.5 Counterparts and Electronics Signature. This Agreement may be executed in
one or more counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument. This Agreement may
be executed by facsimile or other "electronic signature" (as defined in the
Electronic Signatures in Global and National Commerce Act of 2000) in a manner
agreed upon by the parties hereto.
24.6 Entire Agreement; Amendments. This Agreement, including any addenda or
exhibits attached hereto, contains the entire Agreement between the parties with
respect to the subject matter hereof, supersedes all prior agreements,
negotiations and oral understandings, if any, and may not be amended,
supplemented, or modified in any way, except by an amendment in writing and
signed by authorized representatives of the parties hereto. No amendment will be
effected by the acknowledgement or acceptance of a purchase order, invoice, or
other forms stipulating additional or different terms. This Agreement will inure
to the benefit of and be binding upon each of the parties and their respective
successors, assigns, heirs, executors, administrators, trustees and legal
representatives.
24.7 Reservation of Rights. Duties and obligations imposed by this Agreement and
rights and remedies available hereunder will be in addition to and not a
limitation of duties, obligations, rights and remedies otherwise imposed or
available by law except as otherwise provided herein. When Dealer has exercised
the right to reject a nonconforming shipment or elected to return Product to
Vendor as provided herein, Vendor will not have the right to cure improper
tender which might otherwise be available under law.
24.8 Headings. Headings used in this Agreement are for the purposes of
convenience only and will not affect the legal interpretation of this Agreement.
24.9 Draftsmanship. Each of the parties hereto has been represented by its own
counsel. In the event of a dispute, no provision of this Agreement will be
construed in favor of one party and against the other by reason of the
draftsmanship of this Agreement.
24.10 Survival. The expiration or termination of this Agreement will not
terminate vested rights of either party from any liabilities or obligations
incurred under this Agreement prior to or which by their nature are intended to
survive expiration or termination, including but not limited to provisions
relating to confidentiality, warranties, indemnification, returns, and
proprietary rights.
ADDENDA (CHECK IF APPLICABLE)
Each checked Addendum is hereby incorporated into and made a part of this
Agreement:
[ ] Vendor Program Agreement [ ] Configure to Order Agreement
[X] Subscription Service Addendum [X] Equipment Agreement
[X] Certificate of Insurance [ ] Collaborative Transportation
Agreement
[X] Vendor Performance and Operations [ ] Direct Import Addendum
Standards (available at
xxx.xxxxxxxxxxxxxxxxx.xxx)
IN WITNESS WHEREOF, this Agreement is made effective as of the date first
written above.
BEST BUY PURCHASING LLC VENDOR: Clearwire LLC
(on behalf of its Affiliates)
Authorized Officer: /s/ Xxxxxx Xxx Authorized Officer: /s/ Xxx Xxxxx
------------------ ----------------
(Signature) (Signature)
Name: Xxxxxx Xxx Name: XXX XXXXX
(Please Print) (Please Print)
Title: VP. Vendor Mgmt Title: Executive Vice President
Date: 10.5.05 Date: 10-3-05
