SALES AGENCY AGREEMENT
AGREEMENT made by and between MCI WorldCom Wireless, Inc. ("MCIW"), a
Delaware corporation with offices at and
("Agent"), Lo Castro & Associates, Inc. dba All Pro Communications, with
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offices at .
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WHEREAS, MCIW wishes to expand access to its wireless telephone commercial
mobile radio services ("MCIW Services"); and
WHEREAS, Agent desires to market MCIW Services as an independent authorized
agent of MCIW 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
MCIW, customers for the MCIW services. 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 MCIW is in any
manner associated with such sale, even if Agent resells phones or equipment
purchased from MCIW.
2. Acceptance of Agent Appointment.
Agent hereby accepts the appointment by MCIW as its authorized sales agent
to solicit orders from Great Lakes Chicago Midwest Region (CGSA) customers
for the MCIW Services, subject to the terms and conditions of this
Agreement.
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3. Commissions/Restrictions.
A.
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b. Unless otherwise agreed in writing by MCIW , the only commissions or
other compensation due Agent are those commissions payable pursuant to
Section 4 below.
c.
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d.
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MCIW 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 MCIW Services if, in MCIW's
sole opinion, anyone of such Personnel has not complied with MCIW
sales guidelines or the terms of this Agreement.
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e. The territory in which Agent may sell the MCIW Services is that
portion of the United States, not including any possession, territory,
commonwealth or dependency thereof, in which MCIW has the legal and
regulatory authority to provide the MCIW Service. Changes in MCIW's
legal and regulatory authority to provide the MCIW Service will reduce
or enlarge the territory during the course of this Agreement.
f.
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.
g.
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h.
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4. Commissions/Calculation.
a.
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b.
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c.
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d.
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5. Term and Termination.
a. The service term begins the first day of the month following the
execution of this Agreement by both parties ("Effective Date") and
continues for a period of three (3) years. 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.
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c.
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d.
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e.
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f.
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6. Order Acceptance.
a.
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b. MCIW 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 MCIW 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 MCIW. MCIW may, as set forth in this
Agreement, refuse any Order for service submitted by Agent from leads
referred to Agent by MCIW.
c. All Orders submitted by Agent are subject to credit screening and
credit approval by MCIW in its sole discretion. MCIW has the absolute
right to reject Orders or require deposits or other forms of security
based on MCIW's estimation of customer's creditworthiness.
7. Reporting; Payment.
a.
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b.
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c.
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8. Relationship of Parties.
a. Agent has no authority to bind MCIW by contract or otherwise or to
make representations as to the policies and procedures of MCIW other
than as specifically authorized by this Agreement. MCIW 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 MCIW
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 MCIW 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 MCIW 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, 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 are referred to
herein as Agent's Personnel. MCIW 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
MCIW OR AS SET, FORTH IN THE FORM OR FORMS OF ORDERS PROVIDED AGENT BY
MCIW , OR AS OTHERWISE EXPRESSLY PERMITTED BY MCIW IN WRITING.
e. 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.
9. Marketing.
a.
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b.
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c.
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d.
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10. Sales Aids and Training.
a.
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b.
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c.
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11. Standards of Conduct.
a.
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12. Non-Competition.
a.
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b.
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c.
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13. Confidentiality; Publicity.
a.
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b.
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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.
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e.
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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.
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.
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i.
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j. 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 .
k.
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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 MCIW 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.
14. Tradenames and Trademarks.
a.
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b.
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c.
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d.
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e.
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15. Advertising Review.
a.
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b.
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For pre-approval prior to submitting the aforementioned, to:
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16. Limitation of Liability.
a.
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b.
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c.
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d.
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e.
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17. Indemnification.
a. Agent shall indemnify and hold harmless MCIW , 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). MCIW
shall give Agent prompt notice of any matter for which it has an
indemnification obligation. As between the parties, MCIW will control
the defense of such action and settlement negotiations.
b. Notwithstanding the above or other provisions of this Section 17,
Agent agrees to defend, indemnify and hold harmless MCIW from and
against any claim or action whatsoever arising from the use or
representations by Agent and/or customers and/or any third party
authorized by Agent of the MCIW 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 MCIW and its
affiliated companies, their directors, officers, employees and agents,
from any and all claims, 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 the payment or nonpayment
of any sums to Agent' s Personnel or any other person or entity with
respect to MCIW Services, and Agent shall receive and respond to all
inquiries related thereto.
d. Agent will immediately notify MCIW 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.
18. Insurance.
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19. 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 MCIW at:
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with a copy to:
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or at such address it may designate in writing from time to time.
20. 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.
21. 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 Chicago, Illinois 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.
22. Impossibility of Performance.
Neither MCIW 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; (v) or any other cause beyond the party's
reasonable control. Any delay resulting therefrom will extend performance
accordingly or excuse performance, in whole or in part, as may be
reasonable.
23. 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.
24. 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 MCIW which
consent will not be unreasonably withheld. Any attempted assignment without
MCIW'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. MCIW may assign this Agreement to its parent,
or any subsidiary or affiliate company.
25. 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.
26. 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.
27. 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.
28. Headings.
The section numbers and captions appearing in this 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.
29. Expiration.
This Agreement is not be valid unless executed by Agent and executed by
MCIW . Any and all prior offers made to Agent, whether written or oral, are
superseded by this Agreement.
Agent WorldCom WIRELESS, INC.
______________________________ ______________________________
Authorized Signature Authorized Signature
______________________________ _______________________________
Printed Name Printed Name
_______________________________ _______________________________
Title Title
_______________________________ _______________________________
Date Date
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MCI WORLDCOM WIRELESS SALES AGENT
EQUIPMENT PURCHASE AGREEMENT
FOR WIRELESS CELLULAR HANDSETS AND ACCESSORIES
This is a purchase agreement for wireless telephone handsets other
communications equipment and related accessories Equipment Purchase Agreement
Number between MCI Wireless. Inc., WorldCom Wireless, Inc. and their wireless
affiliates doing business as MCI WorldCom Wireless ("MCI WorldCom Wireless" or
"MCIWW") on the one hand, __________________ ("Buyer"),
located at ___________________________________ on the other hand, dated (the
"Agreement").
1. Purchase and Sale or Wireless Equipment Subject to the terms of this
Agreement, MCIWW agrees to sell to Buyer and buyer agrees to purchase from
MCIWW wireless telephone commercial mobile radio service handsets
("Handsets"), other wireless communications equipment, and any additional
accessories, (collectively "Equipment") offered by MCIWW for sale, ordered
by Buyer through a purchase order as provided in Section 3 below and
delivered by MCIWW (as available) prior to termination of this Agreement.
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2. Term.
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3. Charges.
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3.9 4. Title and Risk or Loss. Text omitted per Request For Confidential
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5. Warranty.
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6. Limitation or Liability.
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7. Intellectual Property/Use of Marks. Buyer acknowledges that it does not own
any of MCIWW's or any of the Equipment manufacturers' designated
trademarks. service marks and other symbols (the "Marks"), and agrees not to
assert any rights with regards to the Marks nor shall Buyer use any such marks
without prior written approval from the owner.
8. Indemnification. Buyer agrees to indemnify, defend and hold harmless MCIWW,
its parent companies, subsidiaries, affiliates, and all of their respective
directors and employees from any and all liability to third parties arising from
(i) a breach by Buyer of its obligations under this Agreement; (ii) the acts
errors, representations, misrepresentations, or negligence of Buyer, its
employees, affiliates, distributors or agents, or (iii) violation by Buyer, its
affiliates, distributors or agents of a third party's trademarks, service marks,
copyrights, trade secrets, proprietary rights, intellectual property rights or
publicity rights in connection with the Equipment provided under this Agreement.
9. Force Majeure. Neither party shall be deemed negligent. at fault or liable
for any delay or failure in performance resulting from acts of god, war,
accidents, labor disputes, strikes or any other cause not the fault of and
beyond the reasonable control of the party delayed; provided that the delayed
party gives the other party prompt notice of the delay in sufficient detail to
permit the notified party to minimize the effect of such delay.
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11. Arbitration. Any dispute or disagreement arising out of or related to this
Agreement shall be submitted to J.A.M.S/ENDISPUTE for final and binding
arbitration by a single, neutral arbitrator pursuant to the J.A.M.S./ENDISPUTE
Arbitration Rules and Procedures in effect on the date of commencement of
arbitration, as modified by this Agreement. The costs of arbitration.
including the fees and expenses of the arbitrator, shall be shared equally by
the parties unless the arbitration award otherwise provides. Each party shall
bear the cost of preparing and presenting its own case. The arbitration shall be
governed by the United States Arbitration Act. 9 U.S.C. 1-16 et seq. ("USAA").
notwithstanding any conflicts or choice of law provision in this Agreement. The
parties agree that Washington, D. C. shall be the location for the arbitration
hearing. Any controversy over whether an issue is subject to arbitration shall
be determined by the arbitrator. The arbitrator has no authority to award
punitive, treble or exemplary damages and the parties expressly waive their
rights to any such damages. The award may be confirmed and enforced in any court
of competent jurisdiction. All post-award proceedings are governed by the USAA.
12. Independent Contractor Status. MCIWW's relationship to Buyer in the
performance of this Agreement is that of an independent contractor. Nothing
contained in this Agreement shall be deemed or construed as creating a
partnership, joint venture or fiduciary relationship between MCIWW and Buyer.
13. Export and Legal Compliance.
13.1 Buyer acknowledges that certain Equipment and associated technical data
which may be provided hereunder may be subject to export and re-export controls
under the U.S. Export Administration Regulations and/or similar regulations of
the U.S. or any other country. Buyer shall not export or re-export any such
Equipment or associated technical data or any direct product thereof in
violation of any such laws.
13.2 Buyer shall comply with all laws and regulations. including but not limited
to import and custom laws and regulations.
13.3 Buyer shall not distribute the Equipment outside of those areas in which
MCIWW provides wireless service.
14. Survival. The rights and responsibilities of the parties hereto under the
provisions of Sections 6, 10, 11, 14 and 16 shall survive expiration or
termination of this Agreement, along with any other provisions which by their
nature extend beyond any such expiration or termination.
15. No Assignment.
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16. Entire Agreement; Amendments. This Agreement contains the entire agreement
between MCIWW and Buyer concerning its subject matter and supersedes all prior
or contemporaneous agreements, representations, expressions or discussions,
written or oral, courses of dealing, usages of trade or courses of performance
under this or other agreements. This Agreement supersedes all preprinted or
other terms and conditions of any purchase order submitted by Buyer concurrently
with or pursuant to or in connection with this Agreement. Amendments to this
Agreement, with the exception of price revisions as stated above, shall be
effective only if in writing and signed by the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives on the date first above written.
ACCEPTED AND AGREED TO:
BUYER
By: ___________________________
Name: _________________________
Title: ________________________
Date: _________________________
MCI WIRELESS, INC.
WORLDCOM WIRELESS, INC.
AND THEIR WIRELESS AFFILIATES
D/B/A MCI WORLDCOM WIRELESS
By: ___________________________
Name: _________________________
Title: ________________________
Date: _________________________
Authorized Agent: Locastro & Associates, Inc. dba All Pro Communications
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