EXHIBIT 10.10
SALES AGENCY AGREEMENT
AGREEMENT made by and between MCI Wireless, Inc., WorldCom Wireless,
Inc., and their wireless affiliates, d/b/a MCI WorldCom Wireless ("MWW"), with
offices at 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, and IDS
Cellular, Inc. ("Agent"), a Florida corporation, with offices at 0000 Xx.
Xxxxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000.
WHEREAS, MWW wishes to expand access to its wireless telephone
commercial mobile radio services ("MWW Services"); and
WHEREAS, Agent desires to market MWW Services as an independent
authorized agent of MWW pursuant to the terms and conditions-set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein and other good and valuable consideration, the adequacy and
receipt of which is hereby acknowledged, the parties agree as follows:
1. Appointment of Agent
Subject to the terms of this Agreement, Agent is hereby appointed an
independent sales agent with limited authority to solicit, on behalf of
MWW, customers for the MWW Services. Such solicitation may occur in
person, Online (i.e., on Agent's World Wide Web site), or through any
other method that meets the requirements of this, Agreement and which
has been agreed-to in advance by MWW. The parties acknowledge and agree
that the agency relationship established by this Agreement is for the
solicitation of wireless telephone communication service and not for
the sale of phones or other equipment to be used in conjunction with
such services. Any sales by Agent of phones or other equipment shall be
solely on the account of Agent and Agent shall not represent that MWW
is in any manner associated with such sale, even if Agent resells
phones or equipment purchased from MWW.
2. Acceptance of Agent Appointment
Agent hereby accepts the appointment by MWW as its authorized sales
agent to solicit orders from customers for the MWW Services, subject to
the terms and conditions of this Agreement within the MWW-served market
area(s) listed oil Schedule A, as MWW defines the market area(s) from
time to time ("Agent Sales Territory"). Each such request for MWW
Service to an individual Mobile Identification Number ("MIN") is
referred to herein as an Order, which when the MIN is activated, is
referred to as an Account. Agent acknowledges that this is an
appointment of limited agency with restricted authority to act on
behalf of MWW Services.
3. Commissions/Restrictions
a. After receipt by MWW of (1) an original service application
and agreement signed by the applicant (including authorization
to check the applicant's credit), the applicant's driver's
license and/or corporate letter of authorization (as
applicable) (collectively, these elements are referred to here
as the "Order Documentation "), and (ii) acceptance of an
Order by MWW, MWW shall pay the Agent an activation commission
as set forth in .Section 4 below. In the instance of an Order
solicited and received Online (an "Online Order"), the Order
Documentation must meet the requirements of Section 7 below.
b. Unless otherwise agreed in writing by MWW, the only
commissions or other compensation due Agent are those
commissions payable pursuant to Section 4 below.
c. Any activation commission paid by MWW to Agent shall be
refunded if the Account on which the activation is paid is
deactivated within the first 180 days, or if MWW determines in
its sole discretion that the Account was obtained as a result
of fraud, misrepresentation, misleading information, or other
material departure from MWW's stated policies, practices or
marketing positions as they may change from time to time,
including but not limited to those relating to Online Orders.
Any credit issued to an Account to resolve any issue caused by
Agent or its representatives making any misleading, improper
or inaccurate representation, such as implying that the
customer may be given a price plan or discount that is not
authorized in MWW's published price lists may be set off
against any commission amounts owed to Agent under this
Agreement. It is agreed by Agent that any activation
commissions or bonus payments due Agent may be retained by MWW
to offset any debts owed to MWW by Agent for equipment or
otherwise. In the event that Agent files any bankruptcy
proceeding or has such a proceeding filed against it, Agent
specifically agrees that MWW's right to offset as described
herein shall continue unabated.
d. (i) Agent shall not utilize or allow non-employee
Personnel (as defined in Section 9.c below) to offer
MWW Services or otherwise assist in the Performance
of this Agreement (whether directly, through an
Online site, or otherwise) without MWW's prior
written approval. MWW reserves the right to direct
Agent to bar any of its non- employee Personnel
(including all such Personnel associated with a
particular subagent or other entity) from selling MWW
Services if, in MWW's sole opinion, any one of such
Personnel has not complied with MWW sales guidelines
or the terms of this Agreement.
(ii) Agent is liable for any breach of this Agreement by
any of its Personnel. MWW is not liable to pay
commissions under this
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Agreement or otherwise for revenue generated by any
non-employee Personnel not approved by MWW as
provided for in this Agreement. Agent's Personnel
have no claim against MWW for commissions, salaries
or other items of expense. Agent expressly agrees
that all of Personnel are subordinate to Agent and
subject to all rules, restrictions and regulations
set forth in this Agreement that are applicable to
Agent. Breach of this Section 3.d. by Agent is an
Irregular Marketing Activity for purposes of this
Agreement.
e. Subject to the restrictions of Section 2 and-Schedule A, the
territory in which Agent may sell the MWW Services may never
exceed that portion of the United States, not including any
possession, territory, commonwealth or dependency thereof, in
which MWW has the legal and regulatory authority to provide
the MWW Service ("MWW Service Territory"). Changes in MWW's
legal and regulatory authority to provide the MWW Service will
reduce or enlarge the MWW Service Territory during the course
of this Agreement.
f. Agent shall not knowingly and without MWW prior written
consent, solicit any person or, entity that is a common
carrier of telecommunications service, or which is all MCI
Corporate National Account (also known as MCI Large Accounts),
or which is any of the following: (i) a user of MWW Service
(except for the purpose of selling additional service); (ii) a
reseller or rebiller of MWW Service; or, (iii) an agent or
subagent of Agent for further solicitation of MWW Service.
Solicitation of a prohibited customer shall be deemed a
material breach of this Agreement.
g. Unless otherwise agreed in writing by MWW, no commissions or
other compensation will be paid for usage derived from any
person or entity that was a MWW customer at the time MWW
received the Agent's Order Documentation submission or during
the ninety (90) days preceding the customer's Order.
Commissions will not be payable on monthly usage derived from
any person or entity that is a MCI National Account (such as
accounts that are multinational, corporate, global, etc.)
unless preapproved in writing by MWW.
4. Commissions/Calculation
a. Activation commissions will be paid according to the
Attachment "A" schedule based on the monthly access charge of
the calling plan of the Account activated, except as provided
in subsection b.
b. MWW may choose to offer special promotions for which Agent
will receive a reduced commission so long as Agent is told in
advance of the commission that will be paid in connection with
such promotions.
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5. Term and Termination
a. The term of this Agreement begins the first day of the month
following the execution of this Agreement by both parties
("Effective Date") and continues for a period of one (1) year.
Either party may terminate this Agreement with or without
cause at any time upon ninety (90) days prior, written notice
to the other party.
b. MWW may terminate, this Agreement with cause: (1) for breach
by Agent of any provision of this Agreement provided that
written notice of breach has been given to Agent and such
breach has not been cured within thirty (30) days after
delivery of such notice; (ii) immediately upon notice and
without any cure period if MWW discovers any Irregular
Marketing Activity by Agent, including, but not limited to,
solicitation or marketing of customers outside the Agent Sales
Territory (including, without limitation, by failing to
provide prominent notice to persons visiting the Agent Online
Site of the geographic limits on Agent's authority to sell MWW
Services); (iv) immediately upon notice and without any cure
period for unethical conduct by Agent including, but not
limited to, offering or providing to any MWW sales agent or
employee any financial or other incentive for the purpose of
obtaining customer leads or other information which is deemed
to, be beneficial to the Agent; and (v) immediately upon
notice and without any cure period if use of the MWW Services
by Agent is deemed to be for any illegal purpose or if Agent
uses the MWW Services to send any message which is illegal,
obscene, indecent, threatening or harassing, including but,
not limited to, the transmission of unsolicited messages, or
messages which infringe any third party's proprietary right.
For purposes of this Agreement, "Irregular Marketing Activity"
means any activity that constitutes a clear and material
breach or is otherwise clearly and materially inconsistent
with the terms of this Agreement or which, in MWW's reasonable
judgment, would harm MWW's reputation if it were publicly
known. Irregular Marketing Activity includes without
limitation those activities referred to in this Agreement as
Irregular Marketing Activities.
c. MWW has no liability to Agent for commissions from usage by a
customer if Agent knowingly solicited such a customer who uses
the MWW Services to send any message which is illegal,
obscene, indecent, threatening or harassing, including but not
limited to, the transmission of unsolicited messages which
infringe any third party's proprietary right. MWW also has no
obligation to pay commissions in any instance where Agent is
knowingly involved in any deceitful or fraudulent activity,
such as cloning or otherwise.
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d. If MWW terminates this Agreement for cause, Agent waives all
claims for any expected commissions or profits or for any
investments, expenditures or commitments made in connection
with this Agreement.
e. If MWW terminates this Agreement, in whole or in part, during
the Term pursuant to Section 5.a, MWW will pay Agent for those
outstanding current activations due Agent. Agent will not
continue to receive any payments if Agent approaches any of
the Accounts for which Agent was paid or is due a commission
for any purpose that may lead to a deactivation or
disconnection of wireless service. Agent will only receive a
commission for an Account upon receipt of proper Order
Documentation.
f. Upon the expiration or termination of this Agreement, Agent
shall immediately discontinue solicitation of Online Orders,
and remove from the Agent Online Site all references to MWW
and MWW Services as well as the capability for visitors to
that Site to order MWW Services. With MWW's prior written
approval of its content, appearance and duration, Agent may
display on the Site for a limited time a transitional message
stating that the Agent is no longer selling MWW Services.
g. It any regulatory, Judicial, or legislative body having
jurisdiction over the way in which the MWW Services or other
services referenced herein are provided, changes the manner in
which the MWW Services are permitted to be provided, MWW may
then terminate this Agreement in its sole discretion
immediately upon notice and without further liability for new
activation commissions, or otherwise.
6. Order Acceptance
a. Agent expressly acknowledges that: (i) its appointment
hereunder is as a non-exclusive sales representative for MWW
Services as offered by MWW; (ii) any solicitation by Agent of
Orders from customers for the MWW Services will be subject to
MWW acceptance, in its sole discretion, of such Orders and the
availability, from time to time, of the MWW Services; (iii)
MWW has no responsibility or liability whatsoever to Agent
with respect to the continued availability or operation of the
MWW Services or MWW's acceptance of, or failure to accept,
Orders for the MWW Services from customers solicited by Agent,
and, (iv) MWW has the right to independently verify all Orders
submitted by Agent and reject without penalty any Orders not
verified as accurate or complete. Agent agrees to use the
wireless service activation and other forms (and their online
equivalents) supplied by MWW and to comply with all reasonable
procedures prescribed by MWW for solicitation of MWW Service
Orders (including without limitation those relating to Online
Orders). Agent agrees to secure original signed wireless
service agreements from all Orders prior to activating such
Orders for MWW Services and to
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submit the wireless service agreements by mail to MWW within
thirty (30) business days of initiation of service. In the
instance of an Online Order, Agent must submit wireless
service agreements as specified in Section 7 below. MWW will
have no obligation to pay activation commissions on any
Account unless the sign ed application for that Account is
received within ninety (90) days of the MIN being activated.
Agent will not, under any circumstances, activate any customer
without MWW prior consent and credit approval.
b. MWW may, from time to time and at its discretion, submit leads
of potential customers to Agent. The submission of any lead is
not and may not be deemed to be MWW approval of the lead as a
customer and Agent is responsible for ensuring that the lead
is a proper customer prior to submitting any Order, though
Agent is under no obligation to so solicit the leads submitted
by MWW. MWW may, as set forth in this Agreement, refuse any
Order for service submitted by Agent from leads referred to
Agent by MWW.
c. As indicated above, all Orders submitted by Agent are subject
to credit screening and credit approval by MWW in its sole
discretion. MWW has the absolute right to reject Orders or
require deposits or other forms of security based on MWW's
estimation of customer's creditworthiness.
7. Online Sales
a. Online Sales Channel. As provided in this Agreement, Agent may
solicit and receive Orders from customers for MWW Services on
Agent's Online Site. Online orders be accepted only when
accompanied by all appropriate, valid credit card. For
purposes of this Agreement, those pages and other related
parts of the Agent's Online Site which Agent uses, in whole or
in part, to promote or sell MWW Services is referred to as the
Agent's Online Site. The Agent's Online Site must display
branding and other information so that a person visiting the
Site would readily understand that the Site belongs to Agent
and that the offers and representations made on the Site are
made by Agent. Agent is responsible for all aspects of the
Agent Online Site, whether or not Agent creates, operates and
maintains all aspects directly, through contractors or
otherwise MWW, at it's sole discretion, has the right to
review, approve or deny any Site representations of MWW
services which are not in compliance with this agreement.
Agent's Site must at all times display the current and correct
published rates and services as authorized by MWW.
b. Online Order Process. The process through which customers may
order MWW Services on the Agent Online Site must include
(without limitation) the following functionalities:
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(i) Notify Site visitors of available MWW Services, rate
plans, optional features and associated rates, terms
and conditions of service, and other associated
charges.
(ii) Allow a Site visitor to submit an order for MWW
Services only after taking affirmative actions that
(1) prominently display All material services
selected by the Site Visitor (including options) and
all associated rates and charges, and (2) indicate
that he/she has read and understands the listed
services and associated charges and agrees to
subscribe to them.
(iii) Notify Site visitors that customers must agree to
terms and conditions of service.
(iv) Allow a Site visitor to submit an order for MWW
Services only after taking affirmative actions that
(1) prominently and legibly display full terms and
conditions of service on screen and (2) indicate that
he/she has read and understands the terms and
conditions and agrees to them. The Site visitor must
be given the option to indicate that he/she does not
agree to the tent s and conditions, which will
prevent him/her from submitting an order.
(v) Allow all Site visitors the option of rejecting the
terms and conditions of service, which will prevent
the Order from being submitted.
(vi) Reject an Order (and immediately inform the person
submitting it that the Order has been rejected) if
any of the following pieces of information don't
match:
- Credit Card Billing Address, Invoice Billing
Address, and Shipping Address
(vii) Send a confirming email to the customer's email
address confirming or rejecting the order. If the
order is accepted, the confirming email must also
contain MWW's online terms and conditions.
(viii) Agent must utilize MWW approved customer
"verification software" packages or other industry
accepted verification software packages which MWW has
reviewed and approved for agent*s online order
processing in advance of taking orders.
c. Online Order Documentation and Retention.
(i) Agent must store and retain for at least two years
full documentation of every Online Order and the
representations and offers that the
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customer saw on Agent's Online Site during the same
online session (whether before or after the customer
submitted the order) in which the customer placed the
Online Order.
(ii) Upon a request from WNW, Agent must promptly retrieve
and provide such documentation to MWW in the format
and medium requested by MWW. Such retrieval and
production must typically be available within 24 to
48 hours; under no circumstances may such retrieval
and production take more than 3 business days. In the
event the Agent does not provide such documentation,
the Agent is solely liable for all charges incurred
associated with the account in question should there
be fraud-related issues. MWW at it's sole discretion
can offset any fraud related charges against
commissions earned in addition to any commissions or
bonus payments associated with the original order
acceptance.
(iii) Agent must take reasonable measures to preserve and
protect the Online Order documentation, including
maintaining two sets of all such documentation,
stored in different, secure buildings. The
documentation must be stored in a manner reasonably
calculated to preserve it in a retrievable, usable
form, in light of the then-current information
available about the effects of light, temperature,
moisture, magnetic forces and other variables on the
mediums in which the documentation is stored.
(iv) Agent's documentation of each Online Order must
include (without limitation) the following:
o Completed service application and agreement,
including all optional services selected by
the customer and all related charges
o Online "signature" of a type that is equal
to or better than the industry (online
wireless) standard and consistent with the
requirements (if any) of the state in which
the customer lives
o Terms and conditions of service in effect at
the time the customer submitted the Order
o All other material offers, promotions and
other representations displayed to the
customer in the course of the Online Order
process
o Applicant's electronic mail address
o Credit Card information (including without
limitation Credit Card Account Name and
Billing Address)
o Billing Name and Address
o Shipping Name and Address (if applicable)
o Service Name and Address (if different from
Billing Address)
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o Social Security Number
o Driver's License or other State ID
d. Required Online Content.
Prior to the agents Online Site becoming operational and
available to tile public, and with the pre-approval of MWW,
the Agent's Online Site must contain (without limitation) the
following content, the existence of which must be clearly and
conspicuously displayed to any visitor to the Site.
o Statement of Geographic Limits of Agent's Sales
Authority and MWW Service Authority
o Privacy Statement (following FTC guidelines)
o Terms and Conditions of MWW Service
o MWW must receive visibility on Agent's Online Site
equal to or better than any other wireless carrier
o Wherever customer's email address is sought, a notice
of how Agent will use that address and information on
how the customer can stop such use
e. Operational Standards.
The Agent Online Site must be operational and fully functional
in all material respects (i.e., capable of displaying
information and conducting transactions as contemplated in the
ordinary course of business) at least ninety-seven percent
(97%) of the time during any thirty (30) day period.
f. Legal Requirements.
Agent's Online Site, and Agent's activities related to it,
will at all times comply with all relevant legal requirements,
including without limitation those relating to the use of
personal and other information collected online, the use of
promotional email ("spamming"), the taxation and documentation
of sales, and other consumer protection measures.
g. Online Site Exclusivity.
To the greatest extent reasonably possible, Agent shall set
aside a part of its Agent Online Site exclusively for MWW,
within which it will not sell or permit any links, pointers,
sponsorships, promotions or similar advertisements or rights.
h. Notification of Fraudulent Activity.
To the extent permitted by law, and at the earliest
practicable time after Agent believes or has a reasonable
basis to believe that an Online Order is
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fraudulent or otherwise not valid, Agent will report that
belief and the basis for it to MWW, including the date, the
MWW Services ordered, and the electronic mail address of the
applicant. In the event the Agent does not provide such
notification, the Agent is solely liable for all charges
incurred associated with the account in question should there
be fraud related issues. MWW at it's sole discretion can
offset any fraud related charges against commissions earned in
addition to any commissions or bonus payments associated with
the original order acceptance.
i. Ownership of Agent Online Site.
The parties acknowledge and agree that as between Agent and
MWW, Agent owns all right, title and interest in and to the
Online Site, subject to MWW's ownership rights in any MWW
trademarks or copyrighted materials within the Agent Online
Site.
j. Warranty.
Agent represents and warrants for the benefit of MWW that
during the Term: (I) the content developed by Agent, or on its
behalf, on the Agent's Online Site, does not and will not
infringe any copyright, trademarks, or trade secrets of any
third party and does not and will not constitute a defamation
or invasion of the rights of privacy or publicity of any third
party; and (ii) the Agent's Online Site does not violate the
laws, statutes, or regulations of any jurisdiction.
k. MWW Right to Audit.
As previously noted, Agent must keep detailed records of all
material aspects of any Online Order. Upon thirty (30) days'
prior notice to Agent, MWW may conduct an audit of these and
any other records to determine Agent's compliance with this
Agreement's requirements relating to online activity,
including federal and state legal requirements. Such audits
will be at MWW's expense except that Agent shall reimburse MWW
for that part of any audit relating to an area in which the
Agent was determined to have materially failed to meet a
requirement under this Agreement. In no event, however, will
MWW's review of the Agent's Online Site relieve or lessen
Agent's obligations under the Agreement.
8. Reporting for Commission Payment
a. Agent will provide MWW with monthly commission reporting,
which will include all customer orders accepted by Agent and
for which commissions are due hereunder. Agent will also agree
to submit to MWW any other
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reasonable reporting information requests as set forth from
time to time by MWW's accounts payable organization.
MWW will provide to Agent a detailed monthly statement of the
activation commissions earned by Agent. For purposes of this
Agreement, activation of an Account's wireless telephone MIN
occurs when that Account's ANI is established in MWW's order
entry and billing systems.
b. A customer solicited by Agent becomes an MWW customer with
respect to the MWW Services at the time the Account is
accepted by MWW. Agent may maintain periodic contact with the
customer for purposes unrelated to the MWW Services and as is
required for warranty service, installation or maintenance of
equipment, or sale of new equipment or the activation of new
or supplemental wireless telephone lines. MWW will xxxx each
Account for the MWW Services. MWW is responsible for issuing
invoices and collecting all charges for the MWW Services.
c. MWW will pay commissions monthly. MWW will use reasonable
efforts to calculate and pay commissions sixty (60) days after
close of each month. MWW has no liability to pay commissions
on any sales not made in accordance with the terms of this
Agreement. MWW may deduct from any amounts due Agent, any
amounts which Agent may owe to MWW or its affiliates under
this Agreement or otherwise.
9. Relationship of Parties
a. Agent has no authority to bind MWW by contract or otherwise or
to make representations as to the policies and procedures of
MWW other than as specifically authorized by this Agreement.
MWW and Agent acknowledge and agree that the relationship
arising from this Agreement does not constitute or create a
general agency, joint venture, partnership, employee
relationship or franchise between them and that Agent is an
independent contractor with respect to the services provided
by it under this Agreement.
b. Agent shall identify itself as an authorized representative of
MWW only with respect to the services covered by this
Agreement and shall otherwise identify itself as an
independent business. Unless specifically authorized in
writing, neither MWW nor Agent shall make any express or
implied agreements, guarantees or representations, or incur
any debt, in the name of or on behalf of the other.
c. Agent's Personnel (as defined below) are not and may not be
deemed to be MWW employees or joint employees. Agent assumes
full responsibility for the acts of its employees and for
their supervision, daily direction and control. Agent is
equally responsible for the actions of any subcontractors,
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subagents, consultants or other agents or representatives of
Agent as if they were Agent's employees. Collectively, Agent's
employees, subcontractors, subagents, consultants and other
agents and representatives arc referred to herein as Agent's
Personnel. MWW is not responsible for worker's compensation,
disability benefits, unemployment insurance, withholding
taxes, social security or any other taxes or benefits for
Agent's Personnel.
d. AGENT SHALL MAKE NO WARRANTIES RELATING TO THE SERVICES
DESCRIBED HEREIN EXCEPT AS SET FORTH IN SALES LITERATURE
PROVIDED TO AGENT BY MWW OR AS SET FORTH IN THE FORM OR FORMS
OF ORDERS PROVIDED AGENT BY MWW, OR AS OTHERWISE EXPRESSLY
PERMITTED BY MWW IN WRITING.
e. Agent, and not MWW, is fully responsible for all content and
functionality of Agent's Online Site. MWW is responsible only
for MWW-created materials and information it provides to Agent
that is used in the manner for which it was provided.
f. This Agreement is not intended to and does not create any
third party beneficiaries to the rights and obligations set
forth herein, nor may any third party beneficiaries be
inferred by operation of law or otherwise.
10. Marketing
a. On a semiannual basis, Agent will provide to MWW sales
projections for the next six (6) months, specifying volumes
for each applicable sales channel (e.g., retail, online).
b. Agent shall provide to MWW, for MWW prompt approval, all
promotional materials related to the MWW Services, including,
but not limited to, the content to be used in the Agent's
Online, print ads, radio scripts, television commercials,
sales brochures, telemarketing scripts and supporting
materials, publicity and press releases and user's manuals,
whether or not such materials explicitly refer to MWW. Agent
may not use any such promotional materials or otherwise make
public references to MWW (including telemarketing) without MWW
prior written approval, which approval will not be
unreasonably withheld. All such materials must be sent to the
addresses noted in Sections 16 and 20 hereof for approval. MWW
will use reasonable efforts to provide written approval to
Agent on such promotional materials within twenty-one (21)
days of receipt of such materials. However, non-response by
MWW does not constitute approval of such materials by MWW. In
addition, all presentations and representations will be
consistent with, and must not misrepresent, MWW product
offerings as may be in effect from time to time. Failure to
obtain
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MWW approval for promotional materials or other public
references to MWW is an Irregular Marketing Activity.
c. Agent shall not convey to customers or prospective customers
that the MWW Services are available only from the Agent or
only in conjunction with any other product or service of
Agent.
d. Agent shall provide MWW with such periodic and special reports
relating to its activities under this Agreement as MWW may
reasonably request from time to time.
11. Sales Aid and Training
a. MWW will provide Agents with an initial sales kit for each of
Agent's sales representatives that includes a program
description, sales literature, sales aids, and order forms to
be used by Agent in its activities as provided by this
Agreement.
b. Agent shall use MWW approved marketing materials (including
telemarketing scripts) and order forms only. Where such
materials and forms are adapted for use online, Agent shall
obtain MWW approval for the materials and forms as adapted.
c. Each sales representative authorized or acting on behalf of
Agent shall be fully and competently trained in the MWW
Services and product sales. Agent shall not use, employ or
allow any sales representative who is not trained and
reasonably knowledgeable about the MWW Services.
12. Standards of Conduct
Agent shall give prompt, courteous and efficient service to the public
and all business dealings with members of the public will be governed
by the highest standards of honesty, integrity and fair dealing. Agent
will do nothing, which would tend to discredit, dishonor, reflect
adversely upon or In any manner injure the reputation of MWW.
13. Non-Competition.
a. At no time during or after the termination of this Agreement
may Agent use any Confidential Information for any purpose
other than to solicit customers for the MWW Services.
b. After normal expiration of the term or earlier termination of
this Agreement (except termination with cause), Agent shall
not promote or sell to MWW customers, including without
limitation through any online promotions or
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electronic mail, or provide leads of MWW customers for, the
services of any other person or entity that offers services
identical or similar to any one or more of the MWW Services
for as long as MWW is paying a commission under this Agreement
or for three (3) months after termination, whichever is
longer.
c. Upon termination with cause pursuant to the provisions of
Section 5.b. of this Agreement, Agent shall not promote or
sell to MWW customers, or provide leads of MWW customers for,
the services of any other person or entity that offers service
identical or similar to any one or more of the MWW Services
for as long as MWW is paying a commission under this Agreement
or for twelve (12) months after termination, whichever is
longer.
14. Confidentiality; Publicity
a. For purposes of this Agreement, "Confidential Information"
means information disclosed by one party ("Owner") to the
other party ("Recipient") which relates to the subject matter
of this Agreement, including, but not limited to customer,
business and/or technical information and data, or which,
although not related to such subject matter, is nevertheless
disclosed. as a result of the parties' discussions in that
regard, and which, in any case, is disclosed by Owner, or an
affiliate of the Owner, to Recipient in document or other
tangible form or electronic form bearing an appropriate legend
indicating its confidential or proprietary nature, or which,
if initially disclosed orally or visually is identified as
confidential at the time of disclosure (or if disclosed
visually by electronic means, the identification as
confidential may be delayed a reasonable time) and a written
summary thereof, also marked with such a, legend, is provided
to Recipient within ten (10) days of the initial, disclosure.
The following information is automatically deemed confidential
and proprietary with need of any further legend or notice: (i)
all customer account and service record information, (ii) all
commission-related information, and (iii) all MWW information
to which Agent obtains access through a nonpublic Internet or
other electronic information source.
b. During the Term of this Agreement, Recipient may use the
Confidential Information of Owner only for the purpose of this
Agreement, and shall protect such Confidential Information
from disclosure to others, using the same degree of care used
to protect its own proprietary information of like importance,
but in any case using no less than a reasonable degree of
care. Recipient may disclose Confidential Information received
hereunder only to its approved Personnel having a need to know
for the purposes of this Agreement, and who are bound in
writing to protect the Confidential Information from
unauthorized use and disclosure. Owner has the right to
injunctive relief in the event of any breach or threatened
breach of this Section 14.
14
c. The restrictions of this Agreement on use and disclosure of
Confidential Information do not apply to information that:
(i) is in the possession or control of Recipient at the
time of its disclosure hereunder through no wrongful
act of Recipient and with no obligation to Owner not
to disclose it;
(ii) is, or becomes, publicly known through no wrongful
act of Recipient, subsequent to the time of Owner's
communication thereof to the Recipient,
(iii) is received by Recipient from a third party free to
disclose it without obligation to Owner;
(iv) is developed independently by Recipient without
reference to any of Owner's confidential information
or other information that owner disclosed in
confidence to any third party; or
(v) is identified by Owner as no longer proprietary or
confidential.
d. Confidential Information disclosed under this Agreement
(including information in computer software or held in
electronic storage media) is and will remain the property of
Owner. All such information, whether in tangible or intangible
form, must be either returned promptly to Owner or destroyed,
as requested by Owner, and must not thereafter be retained in
any form by Recipient, except that one (1) copy may be made
and retained solely as necessary for monitoring continued
compliance with this Agreement. No licenses or rights under
any patent, copyright, or trademark are granted or are to be
implied by this Agreement.
e. Agent acknowledges and shall inform its approved Personnel
that every password of a user is confidential to such user and
may not be revealed. Agent's Personnel shall not utilize user
passwords except in connection with the instruction of such
user. All such passwords are proprietary to MWW and its users.
Any improper use by Agent's Personnel of a password shall be
grounds for immediate termination with cause of this Agreement
by MWW.
f. Neither party shall disclose any of the terms or conditions of
this Agreement without the other party's prior written consent
except as required by subpoena or other judicial or
administrative process.
15
g. Neither party shall issue any publicity statement,
informational release or consent to any interview, relating to
this Agreement or its activities under this Agreement without
the prior written consent of the other party.
h. Any MWW specifications, drawings, sketches, data or technical
or business Information, and any other material which by its
nature should reasonably be understood to be confidential,
that is furnished or disclosed by MWW to Agent hereunder, is
Confidential Information and the exclusive property of MWW. In
particular, any customer names or lists identifying MWW
customers as such and related information or data ("Customer
Information") is Confidential Information, the exclusive
property of MWW and may be used by Agent solely in the
performance of its obligations and duties hereunder and is to
be returned to MWW upon termination of this Agreement.
i. In particular, both during the term of this Agreement and
thereafter, Agent shall not reveal, divulge, make known, sell,
exchange, lease or in any other way transfer any Customer
Information or other Confidential Information for purposes of
using said information to contact customer Accounts that were
activated by Agent or otherwise in competition with MWW or any
of its other agents. Agent agrees that monetary damages for
breach of its obligations under this Section may not be
adequate and that MWW will be entitled to injunctive relief
with respect thereto.
j. The terms and conditions of this Section will survive the
termination of this Agreement.
k. Any breach of the terms and conditions of this Section during
the Term of this Agreement by either party is grounds for
immediate termination of this Agreement with cause by the
non-breaching party.
l. Notwithstanding any terms to the contrary herein, Agent may
comply with any government order, court order or other decree
to produce or disclose the information after MWW has been
notified of the order or decree and had an opportunity to
prevent or restrict its production or disclosure. Agent will
provide such notice promptly.
15. Tradenames and Trademarks
a. During the term of this Agreement, unless other-wise
instructed by MWW, Agent may refer to itself as an MWW
Authorized Sales Agent, but solely in connection with the
marketing of MWW Services to customers hereunder. Agent may
use MWW marks, tradename, and logo design only in marketing
materials, advertising, telemarketing, Agent's Online Site and
promotional literature (collectively, "Materials") in
conjunction with its sale of MWW products and services,
provided that any usage of any MWW xxxx or
16
tradename in such Materials and the advertising claims
associated therewith, in each instance, has been approved in
writing in advance by MWW.
b. Agent acknowledges and agrees that: (i) the marks are owned by
MWW; (ii) it will do nothing inconsistent with such ownership;
(iii) all use of the MWW marks by it will Inure to the benefit
of and be on behalf of MWW; (iv) that nothing in this grant
gives it any right, title or interest in MWW marks other than
the right to use the marks in accordance herewith; (v) it will
not attack MWW's title to the marks or the validity of this
rant; and (vi) further agrees to use MWW marks only in the
form and manner prescribed from time to time by MWW, and not
to use any other trademark or service xxxx in combination with
any of MWW's marks without the prior written approval of MWW.
c. The limited, nonexclusive authorization granted by this
Section 15 may not be assigned to any other entity or party
without the prior written approval of MWW.
d. Agent agrees, at its own expense, to defend, indemnify and
hold MWW harmless from and against any and all claims, suits,
actions, proceedings, judgments, damages, liabilities, costs
and expenses (including allocated costs of in-house counsel
and other attorneys' fees) arising either from use of MWW
marks by Agent or any third party authorized by Agent or
advertising claims made in connection therewith, other than a
claim based on an assertion by a third party either that MWW
does not own the marks, does not have the right to grant the
authorization provided herein, or that the substance of an
advertising claim approved by MWW is materially false or
misleading.
e. Upon termination of this Agreement, any permission or right to
use Marks granted hereunder will cease to exist and Agent will
immediately cease any use of such marks and immediately cease
referring to itself as an MWW authorized sales agent.
16. Advertising Review
a. Agent may under no circumstances advertise, telemarket or
otherwise make public representations about MWW products and
services without MWW's prior approval.
b. Agent agrees to submit all MWW Services-related advertising,
claims language and marketing materials (including but not
limited to business letterhead, business cards, print, content
for Agent's Online Site, radio or television advertising,
telemarketing scripts and related support, press
17
releases, flyers, brochures, posters and LOAs), whether or not
they refer explicitly to MWW Services, for prior written
approval to:
[INSERT TITLE AND ADDRESS OF BUSINESS CONTACT]
For pre-approval prior to submitting the aforementioned, to:
Advertising Review Group
Law & Public Policy
MCI WorldCom
0000 00xx Xxxxxx, X. X.
Xxxxxxxxxx, X.X. 00000
ATTN: Director, Advertising Review Group
17. Limitation of Liability
a. EXCEPT IN CASES INVOLVING WILLFUL OR WANTON MISCONDUCT, MWW'S
LIABILITY TO AGENT IS LIMITED TO ITS OBLIGATIONS TO PAY
COMMISSIONS AS DESCRIBED HEREIN. NEITHER PARTY HERETO WILL IN
ANY EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, INCLUDING BUT NOT
LIMITED TO LOST PROFITS OR LOST REVENUE (WHETHER OR NOT SUCH
PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE)
OR PUNITIVE DAMAGES, BY REASON OF ANY ACT OR OMISSION IN ITS
PERFORMANCE UNDER THIS AGREEMENT. The foregoing limitation
does not apply to Agent's indemnification obligations with
respect to liability to third parties under Section 18 below
and any violation of the non-competition provisions of Section
13 above.
b. MWW HAS NO LIABILITY TO AGENT FOR LOST REVENUE, LOST PROFIT OR
COMMISSIONS THAT MIGHT HAVE BEEN EARNED HEREUNDER BUT FOR THE
INABILITY OR FAILURE OF MWW TO PROVIDE SERVICE TO ANY PERSON
SOLICITED BY AGENT, OR IN THE EVENT OF DISCONTINUATION OR
MODIFICATION OF THE MWW SERVICES, OR FOR DELAY IN ACCEPTANCE
OF OR REJECTION OF ANY ORDER FOR MWW SERVICES.
c. Agent acknowledges and agrees that MWW directly, or through
other sales agents may offer the MWW Services in the MWW
Service Territory or elsewhere, and that Agent will be
entitled to no compensation for sales made through such other
channels. In the event MWW receives conflicting Orders for
service from different agents or MWW employees, MWW may, in
its sole discretion, determine who will receive credit for
such Orders. In the event of such conflicts relating to Orders
for the MWW Services, MWW may, in its
18
sole discretion, compensate Agent as if the Cider were for a
service subject to commission.
d. In the event MWW is required to enforce or preserve its rights
hereunder, Agent will pay all of MWW's reasonable attorney's
fees and costs including allocable costs of in-house counsel,
incurred in connection with any such successful action.
MWW MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
AS TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE
OR OTHERWISE WITH RESPECT TO THE MWW WIRELESS SERVICES
PROVIDED UNDER THIS AGREEMENT.
18. Indemnification
a. Agent shall indemnify and hold harmless MWW, its affiliates,
employees, officers and directors from and against any and all
claims, actions, suits, proceedings, judgments, damages,
liabilities, costs and expenses, including reasonable
attorney's fees and allocable cost of in-house counsel,
arising directly or indirectly from breach of this Agreement,
negligent acts or omissions, or willful misconduct of Agent
(including all its Personnel, whether or not approved). MWW
shall give Agent prompt notice of any matter for which it has
an indemnification obligation. As between the parties, MWW
will control the defense of such action and settlement
negotiations.
b. Notwithstanding the above or other provisions of this Section
18, Agent agrees to defend, indemnify and hold harmless. MWW
and its affiliated companies, their directors, officers,
employees and agents from and against any claim or action
whatsoever arising from (i) operation of the Agent's Online
Site; or (ii) the use or representations by Agent and/or
customers and/or any third party authorized by Agent of the
MWW Services to transmit any message or other material which
may be libelous or which constitutes an infringement of any
copyright or trademark or third party proprietary right, or
which violates any provision of any applicable statute or
regulation of a Federal, state or local government, or which
constitutes false and/or misleading representations or
advertising claims.
c. Agent shall defend, indemnify and hold harmless MWW and its
affiliated companies, their directors, officers, employees and
agents, from any and all claim, liabilities, damages or
expenses (including allocated costs of in-house counsel and
other legal fees and costs) arising from or claimed to have
arisen from any fraudulent activity on the Agent's Online Site
or for any breaches of security on Agent's Online Site.
d. Agent shall defend, indemnify and hold harmless MWW and its
affiliated companies, their directors, officers, employees and
agents, from any and all
19
claims, liabilities, damages or expenses (including allocated
costs of inhouse counsel and other legal fees and costs)
arising from or claimed to have arisen from the payment or
nonpayment of any sums to Agent's Personnel or any other
person or entity with respect to MWW Services, and Agent shall
receive and respond to all inquiries related thereto.
e. Agent will immediately notify MWW in writing of the
commencement or threatened commencement of any action, suit or
proceeding, and of the issuance or threatened issuance of any
order, writ, injunction, award or decree of any court, agency
or other governmental instrumentality, involving Agent's
activities under this Agreement or which may affect Agent's
ability to perform its obligations hereunder.
19. Insurance
Agent will at all times during the term of this Agreement, at Agent's
sole expense, maintain automobile insurance, comprehensive general
liability insurance against claims for bodily and personal injury,
death, property damage and all other harm caused by or occurring in
connection with Agent's acts, omissions and/or misrepresentations,
including without limitation coverage with respect to defamation,
infringement of copyright and trademark, and infringement of privacy
rights or rights of publicity. Such insurance will have limits of: (i)
One Million Dollars ($1,00,000.00) per occurrence combined single limit
and Two Million Dollars ($2,000,000.00) general aggregate for
commercial general liability insurance; and, (ii) One Million Dollars
($ 1,000,000.00) combined single limit per accident for automobile
insurance. Each such insurance policy will provide for not less than
thirty (30) days prior notice to all insureds of any modification,
cancellation or nonrenewal. Upon request of MWW, Agent will furnish
proof satisfactory to MWW that insurance coverage required is in
effect. All insurance maintained by Agent under this Agreement will be
placed with insurance companies which are properly licensed and have
either an A.M. Best's rating of A8, a Standard & Poor's rating of AA,
or a Xxxxx'x rating of Aa2.
20. Notices
Notices to be given pursuant to this Agreement will be in writing and
will be deemed to have been duly and properly given on the earlier of
(i) the date such notice has been received, including but not limited
to where such receipt is established by a reputable overnight courier
service; or, (ii) five (5) days after deposit of such notice in the
United States Mail, postage prepaid, to be delivered by certified mail,
return receipt requested, addressed to Agent at the address given above
or at such address as it may designate in writing from time to time and
addressed to MWW at:
[INSERT TITLE AND ADDRESS OF BUSINESS CONTACT]
20
with a copy to:
MCI WorldCom
Mass Markets Law and Public Policy
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
or at such address it may designate in writing from time to time.
21. Compliance with Law
Agent will, at its own expense, operate in full compliance with all
laws, rules and regulations applicable to, and maintain in force all
licenses and permits required for, its performance under this
Agreement.
22. Arbitration and Disputes
Any dispute arising out of or related to this Agreement, which cannot
be resolved by negotiation (including, without limitation, any dispute
over the arbitrability of an issue), will be settled by binding
arbitration in accordance with the J.A.M.S/ENDISPUTE Arbitration Rules
and Procedures, as amended by this Agreement. Unless the parties select
a different location, the arbitration will be held in the Washington,
DC metropolitan area. The costs of arbitration, including the fees and
expenses of the arbitrator, will be shared equally by the parties
unless the arbitration award provides otherwise. Each party will bear
the cost of preparing and presenting its case. The parties agree that
this provision and the Arbitrator's authority to grant relief are
subject to the United States Arbitration Act, 9 U.S.C. 1- 16 et seq.
("USAA"), the provisions of this Agreement, and the ABA-AAA Code of
Ethics for Arbitrators in Commercial Disputes. The parties agree that
the arbitrator have no power or authority to make awards or issue
orders of any kind except as expressly permitted by this Agreement, and
in no event does the arbitrator have the authority to make any award
that provides for punitive or exemplary damages. The Arbitrator's
decision must follow the plain meaning of the relevant documents, and
shall be final and binding. The award may be confirmed and enforced in
any court of competent jurisdiction. All post-award proceedings will be
governed by the USAA.
23. Impossibility of Performance
Neither MWW nor Agent Will be liable for loss or damage or deemed to be
in breach of this Agreement if its failure to perform its obligations
under this Agreement results from (i) compliance with any law, ruling,
order, regulation or requirement of any federal, state or municipal
government or department or agency thereof or court of competent
jurisdiction; (ii) acts of God; (iii) acts or omissions of the other
party; (iv) fires, strikes, war, insurrection or riot; (iv) or any
other cause
21
beyond the party's reasonable control. Any delay resulting therefrom
will extend performance, in whole or in part, as may be reasonable.
24. No Waiver
No waiver of any of the provisions of this Agreement is binding unless
It is in writing and signed by both parties. The failure of either
party to insist on the strict enforcement of any provision of this
Agreement does not constitute a waiver of any provision and all terms
shall remain in full force and effect.
25. Binding Effect
This Agreement will be binding upon and inure to the benefit of the
parties, their successors and assigns; provided, however, that Agent
may not assign or otherwise transfer this Agreement or any of its
interest herein without the prior, express written consent thereto by
MWW which consent will not be unreasonably withheld, Any attempted
assignment without MWW's prior written consent will be void. Neither
the whole nor any part of the interest of Agent in this appointment
will be transferred or assigned by operation of law. MWW may assign
this Agreement to its parent, or any subsidiary or affiliate company.
26. Severability
No provision of this Agreement which may be deemed illegal, invalid or
unenforceable will in any way invalidate any other provisions of this
Agreement, all of which will remain in full force and effect.
27. Entire Agreement
This Agreement supersedes and replaces all prior and contemporaneous
agreements, understandings and representations, whether oral or
written, between the parties and relating to the subject matter hereof,
and together with the applicable published tariffs and price lists and
other documents referenced herein, constitutes the entire understanding
of the parties with respect to the subject matter of this Agreement.
This Agreement may not be modified, changed, altered or amended except
by an express written agreement signed by duly authorized
representatives of the parties hereto.
28. Controlling Law
This Agreement, including all matters relating to the validity,
construction, performance and enforcement thereof, is governed by the
laws of the State of New York without giving reference to its
principles of conflicts of law, except to the extent the
Communication's Act of 1934, as amended, and as interpreted and applied
by the Federal Communications Commission, applies.
22
29. Headings
The section numbers and captions appearing in tills Agreement are
inserted only as a matter of convenience and are in no way intended to
define, limit, construe or describe the scope or intent of such
sections of this Agreement, or in any way affect this Agreement.
30. Expiration
This Agreement is not be valid unless executed by Agent and accepted by
MWW. Any and all prior offers made to Agent, whether written or oral,
are superseded by this Agreement.
MCI Wireless, Inc.,
WorldCom Wireless, Inc.,
and their wireless affiliates, d/b/a
AGENT MCI WORLDCOM WIRELESS
AGENT
___________________________ _______________________________
Authorized Signature Authorized Signature
___________________________ _______________________________
Printed Name Printed Name
___________________________ _______________________________
Title Title
___________________________ _______________________________
Date Date
23
SCHEDULE "A"
Agent Sales Territories:
All United States domestic markets where MWW offers services.
ATTACHMENT "A"
Agent Agreement Commission Schedule
1. Commission Provisions
1.1 MWW, shall pay Agent for each Order accepted by MWW, an initial
applicable commissions, as described in sections 2-4 below, if the
Subscriber signs up for MWW Cellular Service within the Territory (ies)
identified in Schedule "A" hereto.
1.2 To receive Initial commissions, Agent must submit to MWW a properly
signed and executed Order or its online equivalent within thirty (30)
days of the activation of the customer's cellular phone number. If the
Agent does not deliver a signed Order to MWW within the specified time,
the initial commission will be forfeited. Initial commissions will not
be paid without the receipt by MWW of the Order executed by Subscriber
according to the requirements within this agreement. Although Initial
commissions are paid as noted above, Initial commissions are earned
after the Subscriber has remained on MWW service for a minimum of six
(6) consecutive months.
1.3 If Agent has been paid a commission for a Subscriber that terminates
Cellular service or the Subscriber changes their initial rate plan to a
lower rate plan as described in MWW effective tariffs and as noted in
paragraph (2) below, prior to completing six (6) consecutive months, on
the initial rate plan, the amount or the commission paid will either be
deducted from subsequent commission payments or billed to the Agent for
repayment within Fifteen (15) days of transmittal. In the In the event
Subscriber changes its initial rate plan to a higher rate plan as
described MWW effective tariffs and as noted in paragraphs (2) below,
then any applicable increase in commission will be paid to the Agent.
Initial commission will be paid to Agent for Subscribers accepted by
MWW is noted in paragraphs (2) below.
1.4 Net Subscriber schedules are based on combined carrier activation's in
Agent's Territory (ies) defined in Schedule "A". Net Subscriber is
defined as monthly gross new subscriber activation's less 180-day
deactivations "Subscriber" is defined as those who have not subscribed
to MWW Service within the 3 months immediately preceding the
commencement of service.
1.5 The MWW reserves the right to pay reduced commissions on activation's
associated with the customers purchase of discounted equipment or
discounted airtime packages. In addition, commissions are paid on
activation's involving MWW authorized discounts or promotions, only
when the customer actually receives that discount.
1.6 Although commissions for new subscribers are paid monthly on this
schedule, commissions are actually earned after the subscriber has
remained on MWW service for a minimum of six (6) consecutive months.
Any subscriber terminations within the first six months of service will
result in forfeiture of Agent commission and will be adjusted on
following month's commission payment. No partial commission payments
will be made for new subscribers Who do not fully meet this rule.
2 Initial Commissions Schedule
2.1 Agent shall be paid Initial commissions solely on the amount of the
monthly access charge of the rate plan sold to the Subscriber.
Monthly Rate Plan Access Charges Commissions
-------------------------------- -----------
Digital $18.00 or less $125.00
Digital $18.01 - $34.94 $215.00
Digital $34.95 - $50 00 $235.00
Digital $50.01 + $285.00
3 Activation Bonus
3.1 Agent shall receive an activation bonus (as listed below) based on
monthly Net Subscriber activation's achieved:
Volume Payout
------ ------
0 -- 75 n/a
00 -000 $ 15.00
300-399 $ 20.00
400-499 $ 25.00
500 + $ 30.00
3.2 This bonus will be paid after the completion of each calendar month.
4 Digital SPIFF*
Rate Plan Payout
--------- ------
All Digital (CDMA) $29.00 and above $40.00
All Digital (TDMA) $29.00 and above $25.00
*Spiffs are subject to change with a 30 day written notice
MCI Wireless, Inc.,
WorldCom Wireless, Inc.,
and their wireless affiliates, d/b/a
AGENT MCI WORLDCOM WIRELESS
AGENT
/s/Xxxxxxxx Xxxxxxxx /s/Xxxxx Xxxxxxxx
-------------------- -----------------
Authorized Signature Authorized Signature
Xxxxxxxx Xxxxxxxx Xxxxx Xxxxxxxx
----------------- --------------
Printed Name Printed Name
CEO RVP
--- ---
Title Title
9/28/01 9/25/01
------- -------
Date Date
