Exhibit 10.2
Motorola Reseller Agreement
This Agreement is between Motorola, Inc., by and through its Broadband Wireless
Technology Center with offices at 00 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000
("Motorola") and the Authorized Canopy Solution Provider named above ("ACSP")
and establishes the terms and conditions for ACSP's participation in the
Motorola Canopy ACSP Program (the "Program"). Under the Program, Motorola will
provide marketing and promotional support to ACSP related to ACSP's purchase and
license of Motorola Canopy Wireless Broadband Internet Access products
("Products"), from the Motorola identified Authorized Canopy Distributor
("Distributor"), for resale in the United States, its Territories and Canada.
Added-Value, Minimum Purchase Targets, Area of Primary Marketing Responsibility
1.1 Motorola Products purchased from Distributor for resale by ACSP will be
sold with added-value services such as network system analysis, design,
integration, or implementation.
1.2 In order to ensure adequate technical and marketing support to end users,
eligibility to resell Motorola Products is subject to meeting certification
requirements as described in the Program materials. ACSP will not sell Motorola
Products without arranging for adequate post-sales support.
1.3 ACSP shall sell, as a minimum target, two hundred thousand dollars
($200,000) in Product on an annual basis. Sales will be monitored on a quarterly
basis and reviewed with ACSP to ensure ACSP is capable of reaching the annual
minimum target. If after 2 consecutive quarters, ACSP has not sold seventy five
thousand dollars ($75,000) of Product, ACSP may no longer qualify to participate
as a Motorola Authorized Canopy Solution Provider.
1.4 ACSP agrees that its defined role in Motorola's distribution system is
necessary in order to most efficiently assist Motorola, Distributor and
Motorola's other distributors, dealers, representatives and resellers to expand
Motorola's distribution of the Products and to provide the highest levels of
customer satisfaction. Accordingly, ACSP agrees to use its best efforts to
promote and sell the Products only within the United States, its Territories and
Canada ("Area of Primary Marketing Responsibility"). ACSP acknowledges that it
may not sell Products to any customer whose principal place of business is
outside of ACSP's Area of Primary Marketing Responsibility. ACSP's sales volume
performance as a reseller of the Products will be evaluated based only on its
sales volume performance of sales to customers whose principal places of
business are in ACSP's Area of Primary Marketing Responsibility. ACSP's use of
its best efforts within the Area of Primary Marketing Responsibility is
essential to continuation of the Agreement.
Relationships
This Agreement shall be applicable to all ACSP company-owned or franchise branch
locations and/or remote sales and support offices.
ACSP is an independent contractor engaged in purchasing Motorola Products for
resale to its customers. ACSP is not an agent or legal representative of
Motorola for any purpose, and has no authority to act for, bind or commit
Motorola.
ACSP has no authority to make any commitment on behalf of Motorola with respect
to quantities, delivery, modifications, interfacing capability, suitability of
software or suitability in specific applications. ACSP has no authority to
modify the warranty offered with Motorola Products. ACSP will indemnify
Motorola from liability for any modified warranty or other commitment by ACSP
not specifically authorized by Motorola.
ACSP will not represent itself in any way that implies ACSP is an agent or
branch of Motorola. ACSP will immediately change or discontinue any
representation or business practice found to be misleading or deceptive by
Motorola immediately upon notice from Motorola.
Term, Limitations, Termination
The term of this Agreement is twelve (12) months from the date of acceptance by
ACSP and Motorola. This Agreement shall automatically renew on each subsequent
year for a one-year term, unless it is terminated earlier in accordance with
this Agreement.
Motorola or ACSP may terminate this Agreement without cause at any time upon
thirty (30) days written notice or with cause at any time upon fifteen (15) days
written notice, except that neither the expiration nor earlier termination of
this Agreement shall release either party from any obligation which has accrued
as of the date of termination.
Motorola may, from time to time, give ACSP written notice of amendments to this
Agreement. Any such amendment will automatically become a part of this
Agreement thirty (30) days from the date of the notice, unless otherwise
specified in the notice.
Upon expiration, non-renewal or termination of this Agreement, all interests in
any accrued marketing funds will automatically lapse.
ACSP Programs
Motorola will invite ACSP from time to time to participate in the rebate,
co-operative advertising and promotional programs offered by Motorola as part of
the Program. ACSP may, at its option, participate in such programs during the
term of this Agreement. Motorola reserves the right to terminate or modify such
programs at any time at its sole discretion.
ACSP shall exert best efforts to market Motorola Products, and shall use all
promotional materials supplied by Motorola. It is ACSP's responsibility to help
its customers determine which system configuration would best serve their needs.
ACSP shall have sufficient technical knowledge of Motorola Canopy products and
broadband wireless technology in general, and will have access to all Motorola
sales and technical training programs.
Motorola does not represent that it will continue to manufacture any particular
item or model of Product indefinitely or even for any specific period. In fact,
Motorola specifically reserves the right to modify any of the specifications or
characteristics of its Products, to remove any Product from the market, and/or
to cease manufacturing or supporting it.
ACSP is expected and encouraged to advertise and promote the sales of Motorola
Products through all appropriate media including trade show exhibits, catalogs
and direct mailings, space advertising, educational meetings, sales aids, etc.
Motorola must approve all such materials that use Motorola's name or trademarks.
Motorola will assist ACSP in advertising and promoting Motorola Products in
accordance with Motorola's policy.
Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING ANY INFRINGEMENT CLAIMS, SHALL MOTOROLA BE
LIABLE TO ACSP OR ANY OTHER PARTY FOR ANY RE-PROCUREMENT COSTS, LOST REVENUE OR
PROFITS OR FOR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF
MOTOROLA HAS BEEN INFORMED OF SUCH POTENTIAL LOSS OR DAMAGE.
Use of Motorola Trademarks
ACSP acknowledges the following:
Motorola owns all right, title and interest in the Motorola name and logotype.
Motorola is the owner of certain other trademarks and tradenames used in
connection with certain product lines and software.
ACSP will acquire no interest in any such trademarks or tradenames by virtue of
this Agreement, its activities under it, or any relationship with Motorola.
During the term of this Agreement, ACSP may indicate to the trade and to the
public that it is an Authorized Canopy Solution Provider of the Motorola
Products. ACSP may also use the Motorola trademarks and tradenames to promote
and solicit sales or licensing of Motorola Products if done so in strict
accordance with Motorola's guidelines. ACSP will not adopt or use such
trademarks or tradenames, or any confusing word or symbol, as part of its
company name or allow such marks or names to be used by others.
At the expiration or termination of this Agreement, ACSP shall immediately
discontinue any use of the Motorola name or trademark or any other combination
of words, designs, trademarks or tradenames that would indicate that it is or
was a ACSP of the Motorola Products.
Product Warranty
The warranty terms and conditions will be as specified in the warranty and
license terms, which accompany the Product.
MOTOROLA'S WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED
OR STATUTORY INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
Software and Firmware
8.1 The software license terms will be specified in the license agreement that
accompanies the software shipment or is made available on Motorola's Product
web-site.
8.2 One or more components of equipment ACSP purchases may contain firmware
programs built into their circuitry. ACSP's purchase of that equipment includes
a non-exclusive license to use and sub-license the firmware only as part of the
equipment and only under the following conditions: (a) Motorola (or its
supplier) retains all title and ownership to the programs; (b) the firmware may
not be copied, disassembled, decompiled or reverse engineered under any
circumstances; and (c) ACSP will only transfer possession of the programs in
conjunction with a transfer of equipment.
9. Proprietary Information
9.1 Motorola and ACSP shall each exercise due diligence to maintain in
confidence and not disclose to any third party any proprietary information
furnished by the other to it on a confidential basis and identified as such when
furnished. Except in accordance with this Agreement, neither party shall use
such information without permission of the party that furnished it. As used in
this paragraph, "due diligence" means the same precaution and standard of care
which that party uses to safeguard its own proprietary data, but in no event
less than reasonable care. The provisions of this Section shall survive for
five (5) years beyond the expiration, non-renewal or termination of this
Agreement.
9.2 This Agreement does not grant any license under any patents or other
intellectual property rights owned or controlled by or licensed to Motorola.
ACSP shall not have any right to manufacture Motorola Products.
10. Business Ethics
Motorola has historically depended on product quality and superiority, combined
with outstanding support capability to sell its products in all parts of the
world. Motorola believes it can continue to grow and prosper without succumbing
to improper or unethical demands. Motorola will not do business with any ACSP,
distributor, agent, customer, or other person if Motorola knows or suspects the
existence of questionable practices. ACSP agrees with the Motorola policy
stated in this Section. ACSP agrees not to offer, promise or pay anything of
value, directly or indirectly, to any government official, political party
official, political party or candidate for office in order to secure any undue
or improper advantage or benefit for it or Motorola in connection with the
business opportunities which are the subject of this Agreement. If ACSP or any
person under its responsibility, including but not limited to its directors,
officers, employees and agents fails to comply in all respects with the policy
set forth in this Section, Motorola may immediately terminate this Agreement
without any liability whatsoever to ACSP.
11. Compliance with Laws
ACSP agrees to comply with all laws and regulations applicable in the Area of
Primary Marketing Responsibility, including those dealing with the sale and
distribution of the Products. ACSP represents that it is not an employee,
officer, or representative of any government or any agency or other
instrumentality of any government. ACSP further agrees to inform Motorola of
any change in its status or representation. ACSP agrees not to use all or any
portion of any rebates or incentives, either directly or indirectly, to make or
offer a direct or indirect payment or gift to any employee, officer or
representative of any government, government agency or other instrumentality or
to any political party or official thereof or to any candidate for political
office under circumstances where the payment or gift would constitute an illegal
payment under the laws of the United States or any other applicable laws or
where the payment or gift was given for the purpose of securing an improper
advantage or of obtaining any business benefit. ACSP, including its officers,
directors, employees and agents, shall use only legitimate and ethical business
practices in the activities contemplated by this Agreement. ACSP shall comply
fully with all laws applying to the sale and distribution of the Products
purchased under this Agreement, including the U.S. Foreign Corrupt Practices Act
and local anti-corruption laws. In connection with this Agreement, neither ACSP
nor any of its officers, directors, employees or agents shall pay, offer,
promise, or authorize the payment, directly or indirectly, of any monies or
anything of value to any government official or employee, any political party or
candidate for political office, or any employee or official of a public
international organization, for the purpose of inducing or rewarding any
favorable action or obtaining any improper advantage in any commercial
transaction or in any governmental matter. ACSP further agrees to comply with
all United States laws and regulations regarding export licenses or the control
or regulation of exportation or re-exportation of Products or technical data
sold or supplied to ACSP. Both Motorola and ACSP further agree to take the
required steps necessary to satisfy any laws or requirements to declare, file,
record or otherwise render this Agreement valid. ACSP agrees to indemnify and
hold Motorola harmless for all liability or damages caused by ACSP's failure to
comply with the terms of this provision.
12. Government Contract Conditions
In the event that ACSP elects to sell Motorola Products or services to the U.S.
Government, ACSP does so solely at its own option and risk, and agrees not to
obligate Motorola as a subcontractor or otherwise to the U.S. Government. ACSP
remains solely and exclusively responsible for compliance with all statutes and
regulations governing sales to the U.S. Government. Motorola makes no
representations, certifications or warranties whatsoever with respect to the
ability of its goods, services or prices to satisfy any such statutes and
regulations.
13. Miscellaneous
Notices under this Agreement must be sent by telegram, telecopy or registered or
certified mail to the appropriate party at its address stated on the first page
of this Agreement (or to a new address if the other has been properly notified
of the change). A notice will not be effective until the addressee actually
receives it.
This Agreement and its schedules represent the entire agreement between the
parties regarding this subject. This Agreement supersedes all previous oral or
written communications between the parties regarding the subject, and it may not
be modified or waived except in writing and signed by an officer or other
authorized representative of each party. Neither party will be liable to the
other for any delay or failure to perform if that delay or failure results from
a cause beyond its reasonable control. If any provision is held invalid, all
other provisions shall remain valid, unless such invalidity would frustrate the
purpose of this Agreement. Illinois law governs this Agreement. Motorola and
ACSP will attempt to settle any claim or controversy arising out of it through
consultation and negotiation in good faith and a spirit of mutual cooperation.
Any dispute which cannot be resolved through negotiation or mediation may be
submitted to the courts within Illinois for resolution.
In Witness Whereof, each party hereto has caused this Agreement to be executed
in duplicate by its duly authorized representative:
AUTHORIZED CANOPY SOLUTION PROVIDER MOTOROLA, INC., BROADBAND WIRELESS
TECHNOLOGY CENTER
By /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
CEO
8/18/03
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
VP & GM Motorola Canopy
8/18/03
