CINGULAR WIRELESS LLC EQUIPMENT AND PREPAID PURCHASE AGREEMENT
Exhibit
10.14
CINGULAR
WIRELESS LLC
THIS
AGREEMENT IS ENTERED INTO BY the purchaser executing this Agreement below
("PURCHASER"), and CINGULAR WIRELESS LLC ("CINGULAR").
WHEREAS,
PURCHASER contemplates repetitive purchases of equipment, accessories, and
prepaid service, personal identification numbers ("PINS"), or cards ("Cards")
(collectively, "Equipment") from CINGULAR; and
WHEREAS,
PURCHASER and CINGULAR agree that the terms and conditions controlling such
repetitive purchases shall be consistent, uniform, and agreed to by both
parties;
NOW,
THEREFORE, in consideration of the mutual promises, covenants, and conditions
herein contained, PURCHASER and CINGULAR agree as follows:
1.
Term
and Termination.
This
Agreement shall be effective as of the date executed by CINGULAR, and shall
continue until terminated by either party as follows. This Agreement may be
terminated by either PURCHASER or CINGULAR, at any time, upon thirty (30) days
advance written notice to the other party. Termination of the Agreement shall
not affect the obligations or rights of either party regarding orders
outstanding on the date of termination. Upon termination, PURCHASER shall return
all INFORMATION under Paragraph 9 hereof and cease all use of CINGULAR
trademarks or service marks.
2.
Orders.
PURCHASER agrees to order Equipment as needed from CINGULAR in such amounts
that
PURCHASER can adequately fill requests from its customers. Orders shall be
sent
to the ordering address set forth below. Orders placed by PURCHASER may be
canceled only at the discretion of CINGULAR, unless such cancellation occurs
prior to shipment of the order by CINGULAR. Title to material purchased by
PURCHASER hereunder shall vest in PURCHASER and risk of loss pass to PURCHASER
when the material has been shipped at the dock of CINGULAR.
3.
Invoicing
and Payment.
CINGULAR shall render an invoice and submit the same to PURCHASER at its billing
address set forth below. Due dates for the payment of the invoice shall be
computed from the date of the invoice.
Terms
of
payment shall be net thirty (30) days from the date of the invoice for Cards
and
PINS, and net sixty (60) days from the date of the invoice for all other
Equipment (or such other period as is established from time to time) if a line
of credit has been established by CINGULAR for PURCHASER. If no such line of
credit has been established, payment must be C.O.D. in the form of a credit
card, cash, or check. Net overdue amounts shall be subject to a late payment
charge of up to 1.5% per month, provided that such charge shall not exceed
the
maximum amount permitted by law.
If
invoices are not timely paid and PURCHASER owes CINGULAR monies for any other
reason, CINGULAR reserves the right to deduct the past due sums owed hereunder
from such monies.
PURCHASER
may not offset credits due for returns or defective Equipment, or otherwise
from
invoice payments to CINGULAR. CINGULAR shall apply appropriate credits for
properly returned Equipment to invoices for subsequent Equipment purchases
made
by PURCHASER. To receive credit for defective Equipment and other returns,
PURCHASER must follow CINGULAR's procedures and guidelines for returns the
current version of which is attached hereto as Exhibit B.
4.
Warranty.
CINGULAR shall pass through to PURCHASER such warranties as are provided to
CINGULAR by the manufacturer of the Equipment purchased by PURCHASER hereunder.
THE MANUFACTURERS' WARRANTIES PASSED ON TO PURCHASER HEREUNDER SHALL BE THE
EXCLUSIVE WARRANTIES PROVIDED TO PURCHASER HEREUNDER. NO OTHER WARRANTY, EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS MADE.
1
5.
Limitation
of Liability.
PURCHASER'S SOLE AND EXCLUSIVE REMEDY RELATING TO PURCHASES UNDER THIS AGREEMENT
SHALL BE THE REMEDY AFFORDED BY THE MANUFACTURER OF THE EQUIPMENT TO PURCHASER
AND/OR PURCHASER'S CUSTOMERS. IN NO EVENT SHALL CINGULAR BE LIABLE UNDER THIS
AGREEMENT, INCLUDING THE RETAILER PROGRAM, FOR LOST PROFITS OR REVENUES, OR
OTHER INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES.
6.
Service
Terms.
Terms
of wireless radio service are as set forth on customer service agreement
included with prepaid cards.
7.
Force
Majeure.
CINGULAR shall not be responsible for failure to provide Equipment due to causes
beyond its control, including, but not limited to, work stoppages, manufacturer
shortages, fires, civil disobedience, riots, rebellions, acts of God and similar
occurrences. Equipment shall be provided as soon as possible after the cessation
of such causes.
8.
Notice.
Notice
or other advice required to be given hereunder shall be deemed given when
deposited, postage prepaid, in the United States Mail, or sent via a nationally
recognized overnight courier (such as Fed Ex) to the parties' respective notice
addresses set forth below. If either party changes its address during the term
hereof, it shall so advise the other party in writing and all notices and advice
thereafter required to be given shall be sent to such new address.
9.
Use
of
Information.
Any
information, including but not limited to data, business information, technical
information, computer programs and documentation, programs, files,
specifications, drawings, sketches, models, samples, tools or other data, oral,
written or otherwise, (hereinafter called "INFORMATION"), furnished or disclosed
to PURCHASER hereunder or in contemplation hereof (including any relating to
the
Retailer Program), shall remain CINGULAR's property. All copies of such
INFORMATION in written, graphic or other tangible form shall be returned to
CINGULAR immediately upon CINGULAR's request. Unless such INFORMATION was
previously known to PURCHASER free of any obligation to keep it confidential,
or
has been or is subsequently made public by CINGULAR or a third party, it shall
be kept confidential by PURCHASER, shall be used only in performing under this
Agreement and may not be used for other purposes except upon such terms as
may
be agreed upon between PURCHASER and CINGULAR in writing.
10.
Assignment.
Any
assignment by PURCHASER of any interest hereunder without CINGULAR's prior
written consent, except an assignment solely of monies due or to become due
shall be void. It is agreed that CINGULAR, upon five (5) days prior written
notice to PURCHASER, may assign all its rights, duties and obligations under
this Agreement to an affiliate or affiliates of CINGULAR, or to a partnership
or
partnerships to which CINGULAR or its affiliate has an interest, or to any
entity into which CINGULAR may be merged or consolidated.
11.
No
Tortious Interference with Business or Contractual Relationship.
Should
PURCHASER resell equipment to third parties for further resale to end users,
PURCHASER shall accrue no rights under this agreement to continue making sales
to such third parties. CINGULAR may at anytime sell Equipment directly to such
third parties, and may begin to sell such Equipment in quantities substantially
smaller than sold to PURCHASER. PURCHASER agrees that any such sale or sales
shall not constitute a tortious interference with any business or contractual
relationship that may exist between PURCHASER and such third party even if
PURCHASER has advised CINGULAR of such relationship.
12.
No
Resale for Post Paid Activation.
PURCHASER acknowledges and agrees that CINGULAR may sell Equipment to PURCHASER
at less than the cost of such equipment. PURCHASER acknowledges and agrees
that
such Equipment is sold to PURCHASER solely for activation on CINGULAR prepaid
wireless service plans. PURCHASER
agrees that PURCHASER shall not resell any Equipment without the reasonable
expectation that such Equipment shall be activated on CINGULAR prepaid service.
Similarly, PURCHASER agrees that it shall not resell any Equipment that it
knows, or with reasonable diligence should know, will be activated on CINGULAR's
post paid service plans. In the event that PURCHASER (1) resells Equipment
without a reasonable expectation that it will be activated on CINGULAR's prepaid
cellular service, or which it knows, or with reasonable diligence should know,
will be activated on CINGULAR's post paid service or (2) fails to activate
Equipment on CINGULAR's prepaid cellular service within 90 days of purchase,
PURCHASER agrees to pay to CINGULAR the difference between the price charged
by
CINGULAR for such Equipment and the price CINGULAR's would have charged for
such
equipment had it been purchased for post paid service, including the costs
of
handling and shipping such Equipment, and the full face value of any cards
bundled with the Equipment.
2
13.
Entire
Agreement.
This
Agreement constitutes the entire Agreement between PURCHASER and CINGULAR with
respect to the subject matter hereof and, except as set forth in Paragraph
1
above, shall not be amended or modified without specific written provision
to
that effect, signed by both parties. No oral statement of any person shall,
in
any manner modify or otherwise affect the terms and provisions of this
Agreement. In the event of any conflict between the terms in the body of this
Agreement and those in Schedule A hereto (as the same may be amended from time
to time), the terms of Schedule A shall control and prevail. In the event of
any
conflict between the terms of this Agreement and those of any purchase order
of
PURCHASER, the terms of this Agreement shall control and prevail.
CINGULAR
gives notice of its objection to any additional or different conditions in
PURCHASER's purchase orders.
14.
Miscellaneous.
The
construction, interpretation, and performance of this Agreement shall be
governed by the laws of the State of Georgia. In the event that anyone or more
of the provisions contained herein shall for any reason be held to be
unenforceable in any respect under the laws of the jurisdiction governing the
entire Agreement, such unenforceability shall then be construed as if such
unenforceable provision or provisions had never been contained herein. The
headings in this Agreement are for convenience only and shall not be construed
to define or limit any of the terms herein.
15.
Commission
for New Subscribers.
CINGULAR shall from time to time advise PURCHASER of the commission then being
paid for new prepaid SUBSCRIBER Activations initiated by PURCHASER (the
"Commission"). The Commission, if any will be paid within thirty (30) days
of
the end of the calendar month in which the Activation occurs.
The
current amount of the Commission is set forth on Exhibit A, which Exhibit may
be
amended at any time and from time to time by CINGULAR upon thirty (30) days
prior written notice.
IN
WITNESS WHEREOF, PURCHASER and CINGULAR have caused this Agreement to be
executed in duplicate by their duly authorized representatives as of the day
and
year first stated above.
PURCHASER:
BBI
Ent. Dba Cyber Cynergy
(NAME
OF
COMPANY)
By:
/s/ Xxxxx X. Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
COO
Date:
7-25-03
Notice
and billing address:
BBI
Ent.
Dba Cyber Cynergy
000X
Xxxxxxx Xxxx
Xxxxx,
XX
00000
CINGULAR:
CINGULAR
WIRELESS LLC
By:
/s/ Xxxx Xxxx
Name:
Xxxx Xxxx
Title:
Director of Finance
Date:
7-3-03
Notice
address:
CINGULAR
WIRELESS LLC
0000
Xxxxxxxxx Xxxxxxxxx
Xxxxxxx,
XX 00000
Attention:
Legal Department
3
Ordering
address:
Ship-to
address:
000X Xxxxxxx Xxxx
Xxxxx,
XX 00000
EXHIBIT
A
PREPAY
COMMISSION
The
current
Commission is $35.00 per new prepaid Subscriber activation initiated by
PURCHASER. The Commission shall not be earned until the Subscriber has added
prepaid dollars to his account. If notwithstanding the foregoing, CARRIER pays
PURCHASER a Commission before a Subscriber has added prepaid dollars to his
account, and the PURCHASER fails to add prepaid dollars to his account within
ninety (90) days of the initial activation, CARRIER agrees to repay such
commission to CARRIER. CARRIER may deduct such amount from any other amount
due
from CARRIER to PURCHASER.
4
EXHIBIT
B
CINGULAR
WIRELESS LLC RETURN POLICY
Handset
Returns will be categorized as follows:
Buyer's
Remorse:
§ |
CINGULAR
will allow the Retailer to return Equipment to CINGULAR that was
originally sold to retailer by CINGULAR within 60 Days of shipment
to the
Retailer from CINGULAR. A 5% restocking fee will apply on these returns,
except that the restocking fee will be waived for each handset that
was
deactivated within 15 day s of its activation
date.
|
§ |
CINGULAR
will not accept the return of SIM cards that have been activated.
Non-activated SIM cards may be returned for credit within 60 days
of
purchase from CINGULAR. A 5% restocking fee will apply on these
returns.
|
§ |
CINGULAR
will not credit the Retailer for Equipment returned as Buyers Remorse
if
the Equipment is identified by CINGULAR as abused (water damage,
excessive
wear & tear, etc.,).
|
Defective
on Arrival:
§ |
CINGULAR
will allow the Retailer to return Defective on Arrival Equipment
that was
originally sold by CINGULAR to the retailer with no restocking fee,
provided it is returned to CINGULAR within 30 days after shipment
to the
Retailer. Defective on Arrival is defined as a non-functioning handset/81M
Card out of the box.
|
§ |
Equipment
returned as Defective on Arrival is subject to inspection and diagnostic
testing by CINGULAR as a condition to refund and waiver of restocking
fee.
If the Equipment is determined not to be Defective on Arrival, the
Retailer will be charged a 5% restocking fee, and if the Equipment
is
identified by CINGULAR as abused (water damage, excessive wear & tear,
etc.), no refund will be given.
|
Repairs:
§ |
Customers
in need of handset repair on handsets originally sold to retailer
by
CINGULAR should be referred by the Retailer to a CINGULAR store.
The
CINGULAR store will provide an exchange handset or make other appropriate
accommodations if the original handset is under warranty. Handsets
not
under warranty will be sent out for repair and the customer notified
when
the handset is returned.
|
§ |
Handset
repair for handsets purchased from sources outside of CINGULAR are
the
responsibility of the retailer.
|
Upgrades:
§ |
Customers
requesting to upgrade their handset should be referred by the Retailer
to
a CINGULAR store.
|
Costs
and
credits associated with returns are based on the following
guidelines:
5
1. |
The
Retailer is responsible for all shipping charges associated with
all
returns.
|
2. |
Returned
kits must be complete (including all items as purchased from CINGULAR)
in
order to qualify for maximum credit. If returned complete, the credit
amount will be equal to the current PDC cost of that kit SKU less
any
applicable restocking charges. If the returned kit is no longer stocked,
the most recent cost associated with that kit SKU will apply
.
|
3. |
Incomplete
handset kits (including the handset but missing any other Equipment)
will
be credited at 20% of the current cost of the complete
kit.
|
Return
Authorization Procedure:Retailers with a line of credit must complete CINGULAR's
Return Authorization form and fax it to the ISG in Charlotte, N.C.
· |
Retailer
must provide CINGULAR with all serial numbers for the IMEI/ SIM Card(s)
being returned.
|
· |
CINGULAR
will verify that the handset / SIM Card was shipped to the retailer
within
the past 90 days and establish a projected credit total for the return,
subject to adjustment following the diagnostic testing of the Equipment
described above.
|
· |
CINGULAR
will provide Retailer with a RA# and fax to the Retailer for
shipment.
|
· |
Retailer
must enclose a copy of the RA form and print the RA# on the outside
of the
package.
|
· |
Packages
received without a copy of the RA form and the RA# on the outside
of the
package, or received more than four weeks after the issuance of the
RA#
will be returned to Retailer at Retailer's
expense.
|
· |
The
final approved credit total will be issued to Retailer' s CINGULAR
account.
|
6
VOLUME
INCENTIVE BONUS
ADDENDUM
TO
AUTHORIZED
AGENCY AGREEMENT
BETWEEN
Cingular
Wireless
d/b/a
CINGULAR WIRELESS ("CINGULAR")
AND
BBI
Ent. Dba Cyber Cynergy
("AGENT")
WHEREAS,
the parties entered into an Agreement effective ___9-1_____,_03__
("Agreement ");
WHEREAS,
the parties wish to revise the compensation to provide for a volume
incentive;
NOW
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
it
is agreed as follows:
1.
In
addition to all other compensation payable under the Agreement, for the term
of
this Addendum, CINGULAR shall pay AGENT a Volume Incentive Bonus ("VIB") as
follows:
The
VIB
shall be as specified below for each Gross Subscriber who is Activated by AGENT
and continuously subscribes to CINGULAR's WCS in the Area during a 150
consecutive day period (the Vesting Period"). CINGULAR will pay AGENT the VIB
owing AGENT within 30 working days from the end of the commission cycle in
which
the Gross Subscriber Activations occur. CINGULAR will not pay AGENT any VIB
for
Gross Subscribers Activated under no-commitment post-paid rate plans (also
known
as "month-to-month plans"), or revised, or special plans introduced from time
to
time which pay different compensation, unless otherwise explicitly agreed in
writing by the parties;
Gross
Subscribers activated under such plans shall not count toward meeting the
Monthly Volume Quota. The VIB shall be the VIB per Gross Subscriber
corresponding, in the Monthly Volume Bonus Table, to the Tier Level achieved
by
AGENT for such month.
The
Monthly Volume Quota for commission cycles not corresponding to calendar months
shall be the Monthly Volume Quota for the month in which the commission cycle
ends. In the event a Subscriber fails to satisfy the Vesting Period, the VIB
shall be charged-back in the same fashion as the Activation
Commission.
Monthly
Tier
One
Tier
Two
Tier
Three
Tier
Four
Tier
Five
Jan
-
Dec
0-9
10-19
20-29
30-49
50-100
Monthly
Volume Bonus Table
Tier
Level
Volume
Bonus Per Post Paid Gross Subscriber
7
Tier
One $0.00
Tier
Two $30.00
Tier
Three $45.00
Tier
Four
$60.00
Tier
Five $75.00
2.
AGENT
will be paid, retroactively to the first gross activation for the month, one
bonus for each gross activation at the highest tier level earned by
AGENT.
3.
CINGULAR may terminate this addendum at any time upon thirty (30) days prior
written notice.
4.
Except
as modified herein, all terms and conditions of the Agreement and all Exhibits
and Addenda thereto shall remain the same and in full fore e and
effect.
IN
WITNESS WHEREOF, the parties hereto have executed, sealed and delivered this
Addendum in two counterparts.
BBI
Ent. Dba Cyber Cynergy
AGENT
By:
/s/
Xxxxx X. Xxxxx
Title:
COO
Date:
7-25-03
Cingular
Wireless
d/b/a
Cingular Wireless LLC
By:
/s/
Xxxx Xxxx
Title:
Director of Finance
Date:
7-31-03
8
March
2003
TELEMARKETING
ADDENDUM TO
EXCLUSIVE
AUTHORIZ ED AGENCY AGREEMENT
BETWEEN
CINGULAR
WIRELESS,
d/b/a
CINGULAR WIRELESS
AND
BBI
Ent. Dba Cyber Cynergy
WHEREAS,
the parties entered into an Exclusive Authorized Agency Agreement effective
September
1, 2003 for
the
SC,NC
Area
(the
"Agreement"); and
WHEREAS,
the Agreement prohibits AGENT from making sales via Telemarketing;
and
WHEREAS,
CINGULAR wishes to authorize AGENT to engage in Telemarketing under certain
circumstances:
1.
CINGULAR hereby grants AGENT limited authority to conduct outbound telemarketing
activities subject to the conditions below:
A.
Internal Do Not Call Request Process
a) |
AGENT
shall record all requests not to be called made by prospects contacted
by
AGENT ("Internal Do Not Call
Requests”).
|
b) |
AGENT
shall record Internal Do Not Call Requests in a format as prescribed
by
CINGULAR from time to time (the" Internal Do Not Call Request
File").
|
c) |
AGENT
shall transmit the Internal Do Not Call Request File to CINGULAR
in
accordance with Exhibit A attached hereto which may be amended by
CINGULAR
from time to time in its sole discretion. AGENT shall only include
names
added to the Internal Do Not Call Request File since the last
transmission.
|
d) |
AGENT
shall receive the collated Internal Do Not Call Request List from
CINGULAR
(the "Internal Do Not Call List") in accordance with Exhibit A, and
shall
combine the Internal Do Not Call List with the current Do Not Call
lists
obtained from the various state governments, the Federal Government
and
the Direct Marketing Association.
|
B.
Compliance with Do Not Call Request Requirements
AGENT
represents and warrants that it is familiar with all Federal and State laws
governing telemarketing and that AGENT shall comply with all such laws and
whether or not included as a part of any such law, AGENT agrees to the
following:
a) |
AGENT
agrees that it shall not contact anyone, or any number included on
any
state, Federal or Direct Marketing Association Do Not Call list or
on the
Internal
|
9
March
2003
Do
Not
Call List as collated by CINGULAR.
b) |
AGENT
shall properly identify itself, its telemarketing representatives,
and the
company on whose behalf it is calling, state the purpose of the call
at
the outset of the call. Within 30 seconds after beginning conversation
AGENT shall inquire whether the person being solicited is interested
in
listening to a sales presentation and immediately discontinue the
solicitation if the person being solicited gives a negative
response.
|
c) |
AGENT
shall not call outside the hours permitted under the various state
and
Federal laws for making telemarketing
calls.
|
d) |
AGENT
shall not use any artificial or prerecorded voice when calling a
prospective subscriber.
|
e) |
AGENT
shall not place any calls to wireless or paging telephone
numbers.
|
f) |
AGENT
shall not send unsolicited faxes to any facsimile
machine.
|
g) |
AGENT
shall register in all states requiring registration to which AGENT
intends
to place calls.
|
h) |
AGENT
shall not place calls to any guest room, or to any patient
room.
|
i) |
AGENT
shall not misrepresent the price or features of CINGULAR service,
or of
any equipment being sold by AGENT for use with such
service.
|
j) |
AGENT
must hang up when requested to do so by any
prospect.
|
k) |
If
requested, or if a sale is made, AGENT shall provide the prospect
with
AGENT's street address.
|
l) |
AGENT
shall confirm that the called party is over the age of eighteen
years.
|
m) |
AGENT
shall not make repeated calls to any prospect, or allow the prospects
phone to ring more than ten times.
|
n) |
AGENT
shall not use any threatening, intimidating or abusive
language.
|
C. |
AGENT
shall only contact prospects [include
any limitations of list providers that AGENT can
use].
|
D. |
AGENT
shall be required to secure the Subscribers signature on CINGULAR's
contract.
|
E. |
AGENT
shall provide facilities necessary and shall secure the consent of
its
telemarketing representatives and of the called party, to the extent
required by law, so as to enable CINGULAR to remotely and randomly
observe
telemarketing calls.
|
F. |
AGENT
shall provide CINGULAR with copies of all proposed telemarketing
scripts.
|
AGENT
shall not use any telemarketing script that has not been approved
in
writing by CINGULAR. CINGULAR's failure to respond to a request for
approval of a telemarketing script shall be deemed to be a rejection
of such script.
|
G. |
AGENT
shall provide CINGULAR all outbound telephone numbers and call back
numbers used in its activities. AGENT shall not employ any blocking
of
caller identification or of its outbound telephone number when making
outbound telemarketing calls.
|
H. |
AGENT
shall properly train all of its representative to assure compliance
with
the law and so as to maintain the goodwill of
CINGULAR.
|
10
March
2003
I. |
AGENT
shall provide a list of any subcontractors used by AGENT in conducting
its
activities hereunder. References to AGENT herein shall be deemed
to
include any subcontractors used by AGENT in conducting telemarketing
activities.
|
J. |
AGENT
shall develop a complaint response procedure and shall document such
process and shall respond to complaints within seventy -two
hours.
|
K. |
AGENT
shall maintain records showing all prospects contacted by AGENT,
the
names, last known addresses, and telephone numbers of all telephone
solicitors, copies of all scripts, outlines or presentation materials
used
in making telemarketing calls, and copies of all training materials
utilized by AGENT in training its
solicitors.
|
2.
CINGULAR may terminate this addendum for any reason including convenience at
any
time upon ninety (90) days notice. In the event that CINGULAR receives an
excessive number of complaints as CINGULAR may determine in its sole discretion,
this Addendum may be terminate on fifteen (15) day s notice.
This
Addendum is effective September
1, 2003.
Except
as
modified herein, all terms and conditions of the Agreement and all Exhibits
and
any Amendments or Addenda thereto shall remain the same and in full force and
effect.
IN
WITNESS WHEREOF, the parties hereto have executed, sealed and delivered this
First Amendment in two counterparts.
BBI
Ent. Dba Cyber Cynergy
(Agent)
Sign:
/s/ Xxxxx X. Xxxxx
By:
Xxxxx
X. Xxxxx
Title:
COO
Date:
7-25-03
CINGULAR
WIRELESS LLC
Sign:
/s/ Xxxx Xxxx
By:
Xxxx
Xxxx
Title:
Director of Finance
Date:
7-3-03
11
Dear
Mr.
Agent:
As
you
are aware, the purpose and intent of your contract with Cingular was for you
to
operate a physical location at which prospective Cingular subscribers might
purchase our services. A few agents have, from time to time, made out bound
calls to attract prospective subscribers.
Recently
the regulations governing telemarketing have been strengthened both at the
state
and Federal levels. For example, Federal law prohibits using automated dialing
equipment to call wireless subscribers. With the advent of local number
portability it may no longer be possible to screen prospect lists for wireless
telephone numbers. Accordingly, it might be possible to make a prohibited call
in a seemingly innocent manner.
As
another example, Federal law requires those making telemarketing calls to
maintain an internal list of prospects who have requested not to receive
additional calls. It would be difficult or impossible to maintain such a list
if
many agents were separately and without coordination calling
prospects.
Penalties
for violation of the telemarketing rules can be as much as $10,000 per
violation.
Pursuant
to our agreement, if Cingular Wireless becomes liable for your actions, you
owe
Cingular an obligation to indemnify it. Because telemarketing regulation has
become so complex, Cingular has determined that it is not in either Cingular
or
its agent's interest for the agent base to make uncoordinated outbound
solicitation calls.
Accordingly,
it is Cingular's decision that, effective immediately, you refrain from
telemarketing to prospective subscribers and focus your efforts on maximizing
sales from retail traffic at your store.
We
believe that it is still possible to contact our existing subscribers and those
who have recently cancelled their service to be sure they are informed of
promotions and new services that might be of interest. You may continue to
contact existing and recently terminated subscribers activated by you on
Cingular's service.
Even
existing and recently terminated subscribers, though, have the right to ask
Cingular and its agents not to contact them. Cingular maintains a list of its
subscribers who have asked not to be contacted. If you plan to call existing
and
recently terminated subscribers, you must participate in the Cingular internal
do not call process. As a participant, you will receive a periodic updated
list
of Cingular subscribers who have asked not to be called. You in turn will submit
to Cingular the names of subscribers who you have contact who ask not to be
called again. If you elect to participate in calling existing and recently
terminated subscribers, you will need to execute a telemarketing addendum to
your contract confirming your participation in the internal do not call process
and your commitment to stay informed of and abide by the laws governing
telemarketing.
Your
cooperation in this matter is appreciated.
Very
truly yours,
Cingular
Wireless
12
CINGULAR
-WIRELESS
What
do you have to say?
UNDERTAKING
OF CONFIDENTIALITY
The
undersigned would like to discuss with Cingular Wireless the opportunity to
be a
distributor of Cingular Wireless products and services.
In
connection with such discussions, we agree that any marketing information or
materials provided to us by Cingular Wireless are and will remain the property
of Cingular Wireless, will be used solely for the purpose of evaluating whether
to wish to participate and distribute. We understand that Cingular Wireless
consider such information and materials proprietary and confidential and would
not wish to disclose them to us if we were prohibited from becoming a Cingular
Wireless distributor by virtue of an existing exclusivity agreement with another
service provider. Accordingly, we represent to Cingular Wireless that we are
not
bound by any such agreement that would prohibit us from distributing Cingular
Wireless personal communications products or services.
Date:
__7-25-03______________________________________________________________
Name
of
Company: _BBI Ent. dba Cyber
Cynergy_____________________________________
By:
__Brian D.
Riley__________________________________________________________
Person
Signing Agreement: __Brian D.
Riley________________________________
Phone
Number: _000-000-0000___________________ Fax:
_____000-0000________________
Address:
___140 S. Airport
Road_________________________________________________
City:
___Arden__________________ State: ____NC_________ Zip:
____28704____________
By:
_______Caren
Rothrock____________________________________________________
Cingular
Wireless Representative: ____Caren
Rothrock_____________________
13
ADDENDUM
TO
EXCLUSIVE
AUTHORIZED AGENT AGREEMENT
BETWEEN
CINGULAR
WIRELESS LLC ("CARRIER")
AND
BBI
ENT. DBA CYBER CYNERGY
WHEREAS,
the
parties entered into an Exclusive Authorized Agent Agreement effective January
1, 2003 for the Area; and
WHEREAS,
the
parties desire to amend certain terms of the Agreement:
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
IT
IS AGREED AS FOLLOWS:
ADDITIONS
TO THE AGREEMENT
1.
Post
Pay Co-Op Funds
CARRIER
will establish a CO-OP Budget for AGENT based on $15.00 per commissionable
post
pay adds from the previous quarter. AGENT will submit advertising in advance
for
approval. CARRIER will pay AGENTT 100% of the cost of the pre-approved
advertising based on dollars remaining in AGENT's budget. Specific Co-Op
Guidelines will be provided by CARRIER to AGENT.
This
Addendum is effective January 1,2003
AGENT'S
compensation under this Agreement shall be the amounts stated in the Agreement,
its Exhibits and Attachments, as such amounts may be adjusted from time to
time
pursuant to the terms of the Agreement. In the event of a conflict between
the
Agreement or its Attachments and this Addendum, this Addendum shall
control.
Except
as
modified herein, all terms and conditions of the Agreement and all Exhibits
and
Addenda thereto shall remain the same and in full force and effect.
IN
WITNESS WHEREOF, the parties hereto have executed, sealed and delivered this
Addendum in two counterparts.
CINGULAR
WIRELESS LLC CYBER
CYNERGY
By:
____________
By:
____________
Title:
_ARSM -
Indirect
Title:
_________
Date:
__Jan 29,
2003_
Date:
__________
14