Exhibit 10(y)
AMENDED AND RESTATED
MALL STORES OPERATING AND MARKETING AGREEMENT
THIS AGREEMENT is made as of the 21st day of June, 2001, and effective
January 1, 2002.
BETWEEN:
XXXXXX WIRELESS INC.
a corporation incorporated under the laws of Canada
("Rogers")
- and -
XXXXXX WIRELESS COMMUNICATIONS INC.
a corporation incorporated under the laws of Canada
("RWCI")
- and -
INTERTAN CANADA LTD.
a corporation incorporated under the laws of Alberta
and continued under the laws of British Columbia
("RS")
- and -
INTERTAN, INC.
a corporation incorporated under the laws of the State
of Delaware ("InterTAN")
WHEREAS Rogers is engaged in the business of providing a variety of
wireless communications services and products and services related thereto;
AND WHEREAS certain of Rogers Affiliates are engaged in a broad range of
telecommunications and other services and products, including cable television,
video sales and rentals Internet access services and magazine publishing;
AND WHEREAS RS is engaged in the business of retailing consumer electronics
products through a network of both corporate and dealer operated stores;
AND WHEREAS pursuant to that certain Second Amended and Restated Licence
Agreement dated as of May 1, 2001, as amended (the "RS Licence Agreement"), RS
has been granted by RadioShack Corporation (formerly Tandy Corporation ("RS
Corp")) the licence to use in Canada in the conduct of RS' retail operations (i)
on an exclusive basis, the trade name "RadioShack", and (ii) on a non-exclusive
basis, all trademarks or service marks owned by RS Corp;
AND WHEREAS on April 16, 1996 Rogers and RS entered into the Original
Agreement pursuant to which RS operates designated Rogers retail stores in
shopping malls and other mutually agreed locations across Canada, and RS and
Rogers developed a Store-in-Store Arrangement within the RS Corporate Stores,
for the purpose of, among other things, selling subscriptions to Xxxxxx wireless
communications services and related equipment;
AND WHEREAS the designated Rogers retail stores and RS Corporate Stores may
also offer the products and services of Rogers Affiliates;
AND WHEREAS Rogers is a wholly-owned subsidiary of RWCI and RWCI agreed to
guarantee the obligations of Rogers under the Original Agreement;
AND WHEREAS RS is a wholly-owned subsidiary of InterTAN and InterTAN agreed
to guarantee the obligations of RS under the Original Agreement;
AND WHEREAS the parties wish to enter into this Amended and Restated Mall
Stores Operating and Marketing Agreement to renew the relationship between the
parties;
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties agree as follows:
1. INTERPRETATION
1.1. Definitions
When used in this Agreement, the following terms shall have the
following meanings:
"Activation" has the meaning attributed to it in Schedule "A-4";
"Additional Non-Wireless Services" means the non-wireless
communications products and services offered from time to time after
the date hereof by Rogers Affiliates which (i) RS has determined to
offer through any RS Corporate Store; and/or (ii) Rogers has
determined to offer through any Mall Store;
"Additional Wireless Services" means the wireless communications
products and services other than the Services, offered from time to
time after the date hereof (including by way of example only, fixed
wireless services) by Rogers, or its Affiliates, which (i) RS has
determined to offer through any RS Corporate Store; and/or (ii) Rogers
has determined to offer in any Mall Store;
"Affiliates" means a relationship which exists where one corporation
is a subsidiary of the other, or where both are subsidiaries of the
same corporation, or where each of them are controlled, directly or
indirectly, by the same person or corporation or group of persons
and/or corporations. Control, for the purposes hereof, means effective
control and one corporation shall be a subsidiary of another if the
first referred to corporation is controlled directly or indirectly by
the other;
"Average Base Commission" means the average Base Commission paid to
RS, for Core Subscriptions obtained in RS Corporate Stores, weighted
by the allocation among Core Subscriptions obtained in RS Corporate
Stores in 2001.
"Average Equipment Cost" means the average cost charged by Rogers, as
reflected in its published price list, to the Independent Dealers or
the then current equivalent channel of distribution, for the five
highest selling cellular telephone models (having regard only to the
sales by Rogers to the Independent Dealers) which are intended by
Rogers to be sold with Core Subscriptions weighted as to the relative
sales volumes of each of such five cellular telephone models. For
greater certainty, this excludes Boxed Product, Equipment intended for
sale for use exclusively with Prepaid Services and Margin-based
Products;
"Boxed Products" means voice Equipment sold in a box, where activation
of the Equipment on to the Services does not occur in-store, is
intended for sale to consumers (as opposed to commercial customers)
and which Rogers determines to make available for sale through its
retail channel generally (for greater certainty, excluding any
arrangements or offers uniquely available
through another retailer) but excludes Equipment activated onto
Prepaid Services;
"Commission(s)" has the meaning attributed to it in sections 4.1, 4.2
and 4.4;
"Core Subscription" means a Subscription to voice Services or
integrated voice and data Services accessed over a single device where
the Customer pays for such services after charges have been incurred,
commonly referred to as "postpaid services". For greater certainty, a
Core Subscription does not include a Subscription to Prepaid Services,
a Paging Subscription or other Margin-based Products, as contemplated
in section 4.5 and Schedules "A-2" and "B";
"CRTC" means the Canadian Radio-television and Telecommunications
Commission and any successor body;
"Customer" means an end user of any of the Services, Prepaid Products,
Additional Non-Wireless Services or Additional Wireless Services;
"Equipment" means the terminals for the Rogers wireless communications
networks including mobile telephones, portable telephones including
PCS and 3G telephones, data terminals, combined voice and data
devices, hybrid telephones, satellite phones and/or PBX environments,
wireless messaging devices, pagers and such other related products and
accessories which Rogers from time to time determines are to be
offered in the Mall Stores and which the parties agree may be offered
in the RS Corporate Stores and RS Dealer Stores;
"Existing Mall Stores" has the meaning attributed to it in section
3.1;
"Force Majeure" means any cause of any kind whatsoever not reasonably
within the control of the relevant party (which, for the purposes of
this definition, shall include any person supplying goods, services or
authorizations to such party) and includes, without limitation, acts
of God and the public enemy; the elements; fire; accidents; vandalism;
sabotage; breakdowns or accident to equipment; failure, delay or
disruption of transportation facilities; inability to obtain, or
curtailment of supplies of materials, equipment or labour required to
perform or comply with any obligation or condition of this Agreement
(but not inability to obtain financing); strikes, lockouts or any
other industrial, civil or public disturbances; any laws, orders,
rules, regulations, acts or restraints of any
government or governmental body or authority, civil or military,
including the orders and judgements of courts;
"Independent Dealers" means persons who are, pursuant to a long term
agreement with Rogers (presently known as a "Cantel-Canada's
Communications Store Agreement"), operating retail premises
exclusively for the sale and servicing of the Services or as otherwise
permitted by Rogers, exclusively or predominately under the brand
"Xxxxxx AT&T Wireless The Communications Store", or as may otherwise
be branded by Rogers.
"Licence" means the licence or other documentation by which RS is
permitted by Rogers to occupy the Mall Store;
"Mall Store" or "Mall Stores" means the retail "in-line" stores and
kiosks operated under the Rogers name by RS pursuant to this
Agreement;
"Margin-based Products" has the meaning attributed to it in section
4.5;
"Minimum Performance Standard" means the annual minimum number of
Wireless Subscriptions to be obtained by each Mall Store, as
determined by Rogers and RS for each Mall Store on or before the lease
is signed for the particular Mall Store. In no event shall the Minimum
Performance Standard for a Mall Store be less than the greater of (i)
750 Wireless Subscriptions or (ii) the number of Wireless
Subscriptions required to ensure the particular Mall Store exceeds the
projected breakeven point of such Mall Store, calculated on the basis
of the operating costs for the particular Mall Store (operating costs
defined for the purpose of this paragraph to be those items for which
Rogers is responsible under section 3.5), divided by 40;
"Operating Procedures" means the rules, standards, requirements,
policies and procedures governing the operation and management of the
Mall Stores and performance of RS' obligations hereunder, as jointly
developed by the parties, except those matters relating to the
subscription process, which shall be ultimately determined by Rogers.
Without limiting the potential scope of the Operating Procedures,
Schedule "D" summarizes the matters which the parties have agreed to
deal with in the Operating Procedures;
"Original Agreement" means the Mall Stores Operating and Marketing
Agreement between Rogers, RWCI, RS and InterTan, made as of April 16,
1996, as amended;
"Paging Subscription" means a Subscription by a Customer for the use
of Rogers wireless messaging system. For greater certainty, this does
not include a Core Subscription;
"Prepaid Services" means Services where the charges are paid in
advance of actual usage by a customer, which is as of the date hereof,
commonly referred to as "Pay As You Go" but excludes credit limit
monitoring;
"Residual Commissions" has the meaning attributed to it in Schedule
"A-1";
"RS Corporate Stores" means the consumer electronics retail stores
owned by RS;
"RS Dealer Stores" means the consumer electronics retail stores which
have entered into a dealer agreement with RS and are authorized
sellers of RS Products;
"RS Products" shall have the meaning attributed to it in section 3.7;
"RS Trademarks" means the service xxxx or trademark "RadioShack" and
any other service marks or trademarks owned or used under the RS
Licence Agreement by RS, including those used by RS (whether
registered or unregistered), those for which RS has applied for
registration based upon use or proposed use, and those for which, to
the actual knowledge of Xxxxxx, XX intends to use or apply for
registration based upon use or proposed use;
"Rogers Paging System" means the system of wireless messaging which
Rogers is authorized or permitted by the appropriate regulatory
authorities to provide in Canada;
"Rogers Trademarks" means the trademarks "Rogers", "The Rogers Store",
"AT&T", "Xxxxxx AT&T Wireless" and any other trademarks owned by
Rogers or licensed to Rogers by Xxxxxx Communications Inc., AT&T
Canada Enterprises Company, AT&T Corp. or AT&T Wireless Services,
Inc., including those used by Rogers (whether registered or
unregistered), those for which Rogers has applied for registration
based upon use or proposed use, and those for which, to the actual
knowledge of RS, Rogers intends to use or apply for registration based
upon use or proposed use;
"Services" or "Service" means the wireless communication services
offered by or through Rogers (or through Rogers Affiliates),
consisting of cellular
radio telephone (analogue and digital), including PCS, third
generation (3G) services, wireless messaging (paging), data and
satellite (voice and data, excluding direct-to-home) communications
services and any naturally synergistic extensions or evolutions
thereof. Any reference to cellular service in this Agreement shall be
deemed to include the wireless communications services commonly
referred to as "PCS" and "3G";
"Shopping Mall" means a fully enclosed, consumer-oriented, multi-store
shopping environment. For greater certainty, this does not include
those shopping facilities commonly referred to as strip malls and
power centres;
"Store-in-Store Arrangement" means space and fixtures within a retail
store in a Shopping Mall exclusively dedicated to the offering of (i)
the Services and Equipment or (ii) the Additional Non-Wireless
Services or Additional Wireless Services, in the event such additional
services are offered in an RS Corporate Store;
"Subscription" means a subscription by a Customer for the use of a
Service (and, if applicable, Additional Non-Wireless Service, or
Additional Wireless Service), which shall be deemed to have occurred
when: (i) a subscription is approved and accepted by Rogers or its
Affiliate; and (ii) the Customer's Equipment is activated within
Rogers or its Affiliate's billing system so that Rogers or its
Affiliate is able to record for billing purposes the Customer's usage
of the Service (and, if applicable, Additional Non-Wireless Service,
or Additional Wireless Service); and (iii) when required by Rogers,
any credit approval or security deposit stipulated by Rogers or its
Affiliate is obtained;
"Wireless Communications System" means the provision of wireless
communications services, including the products and services of a
cellular radio telephone system (analogue or digital, including PCS
and 3G), wireless messaging (paging), data and satellite (voice and
data, excluding direct-to-home and global positioning services
("GPS"), except where the GPS is integrated with or available over the
Equipment but excludes devices that do not operate on a PCS, cellular
or 3G communications system) communications services;
"Wireless Subscription" means a subscription by a Customer for the use
of the Services. For greater clarity, a Subscription includes but is
not limited to the sale of Prepaid Services and other margin-based
Rogers Products and Services. A subscription to integrated voice and
data Services constitutes a single Wireless Subscription.
1.2. Headings
The headings of all Articles or sections herein are inserted for
convenience of reference only and shall not affect the construction or
interpretation hereof.
1.3. Rogers Approval
Whenever reference is made herein to the consent or approval of
Rogers, such consent or approval shall be deemed to have not been
given, unless and until such consent is evidenced by the signature of
the Executive Vice-President, Sales and Marketing or other officer(s)
or employee(s) of Rogers designated by him or the Chief Executive
Officer of Rogers in writing for such purpose.
1.4. RS Approval
Whenever reference is made herein to the consent or approval of RS,
such consent or approval shall be deemed to have not been given,
unless and until such consent is evidenced by the signature of the
President, RadioShack Canada or other officer(s) or employee(s) of RS
designated by him in writing for such purpose.
1.5. Schedules
The following are the Schedules attached to and incorporated in this
Agreement by reference and deemed to be part hereof:
Schedule "A-1" - Compensation - Postpaid Cellular
Schedule "A-2" - Compensation - Prepaid Cellular
Schedule "A-3" - Residual Commission
Schedule "A-4" - Volume Bonus
Schedule "A-5" - Churn Bonus
Schedule "B" - Compensation - Paging
Schedule "C" - Form of Licence
Schedule "D" - Operating Procedures
Schedule "E-1" - Mall Allocation List
Schedule "E-2" - Current Mall Store Locations
Schedule "F" - Demo Line Policy
Schedule "G" - Cooperative Advertising Policy
Schedule "H-1" - Non-Exclusive RS Corporate Stores - Cellular
Schedule "H-2" - Non Exclusive RS Corporate Stores - Paging
Schedule "I" - RS Product Categories
Schedule "J" - Mall Stores Operating Reports
Schedule "K" - Revised Costs 2002
Schedule "L" - Commission and Hardware Band Example
1.6. Amendments to Agreement - This Agreement may not, except as otherwise
provided herein, be amended or modified except by a written instrument
executed by both parties (and in the case of Rogers, evidenced by the
signature of the Executive Vice-President, Sales and Marketing or
other officer(s) or employee(s) of Rogers designated by him or the
Chief Executive Officer of Rogers in writing for such purpose),
provided however that, subject to the terms of this Agreement, Rogers
shall have the right upon thirty (30) days written notice to RS to
amend the schedules hereto in any respect, excluding Schedules "X-0",
"X-0", "X-0", "C", "D" (other than the subscription process), "E-1",
"E-2", "G" (other than the "Available Funding" and the "Logo Usage
Guidelines" sections thereof), "I" and "K" provided further that
Schedules "A-1", "A-2" and "B" may be changed pursuant to section 4.3.
2. APPOINTMENT OF AGENT
2.1. Appointment as Agent - Rogers hereby appoints RS, and RS agrees to act
for Rogers as an agent at the Mall Stores and the RS Corporate Stores
for:
2.1.1. the solicitation of Subscriptions;
2.1.2. the servicing of Customers and prospective Customers; and
2.1.3. the activation and maintenance of Equipment and related
accessories;
at such rates of Commission and upon such terms and conditions as
Rogers may from time to time specify in accordance with the provisions
of this Agreement.
2.2. Competition - RS acknowledges that Rogers currently solicits
Subscriptions through a variety of distribution channels, including
dealer-operated stores, stores owned and operated by Rogers or by
Affiliates of Rogers, and through websites, 1-800 numbers and other
direct fulfilment channels, and that these distribution channels are
subject to change from time to time. Rogers reserves the right to
appoint other persons as may be determined by Rogers, agents or
dealers in any area at any time, subject to section 16.6, and to
itself engage, directly or indirectly in the solicitation of
Subscriptions, sale of
Equipment in competition with RS, provided that Rogers shall not open
or authorize any new (other than a relocation within a Shopping Mall)
"in-line" retail stores or kiosks in Shopping Malls in which there is
a Mall Store or an RS Corporate Store, without having first complied
with Article 18.
2.3. Sub-Agents - RS shall be entitled, but not obliged, subject to section
5.9, to appoint RS Dealers Stores as sub-agents to carry out at RS
Dealer Stores the functions set forth in section 2.1. RS shall not
otherwise be entitled to appoint any sub-agents in respect of the
subject matter of this Agreement.
3. DEVELOPMENT AND OPERATION OF MALL STORES
3.1. As of the date hereof, RS is operating the Mall Stores listed in
Schedule "E-2" (the "Existing Mall Stores"). Additional Mall Stores
may be developed and operated during the term in accordance with
section 18.1. While it is the intention of the parties to establish
"in-line" retail stores, they acknowledge that, due to space and
location limitations within the Shopping Malls, Rogers may determine
to proceed with a kiosk instead of an "in-line" retail store until
such time as an appropriate location is available on terms acceptable
to Rogers. Rogers shall be primarily responsible for initiating and
negotiating an appropriate lease arrangement for each of the
designated Shopping Malls. All leases and the location within each
shopping mall of each Mall Store are subject to Rogers prior approval.
Rogers shall enter into a lease acceptable to it, as lessee, for the
designated Mall Stores. Rogers shall be entitled to relocate or
upgrade a Mall Store within the same Shopping Mall. It is agreed that
Rogers will consult with RS prior to the entering into a lease for any
new Mall Stores and any extension or renewal of an existing lease for
a Mall Store.
3.2. Rogers shall provide the design specifications and construction
drawings for each Mall Store.
3.3. Rogers shall be responsible for the cost of leasehold improvements,
furniture and fixtures at each Mall Store (less the amount of any
landlord's allowances) provided that Rogers has approved such costs in
advance. No construction or change to the layout of a Mall Store may
occur without the prior approval of Rogers.
3.4. RS shall enter into a Licence with Rogers for the premises occupied by
each Mall Store, in substantially the form annexed hereto as Schedule
"C", pursuant to which, inter alia, RS shall assume responsibility
for, and shall
operate the Mall Store in accordance with, all non-financial
obligations under the applicable head lease.
3.5. Rogers shall be responsible for payment of the rent (excluding
percentage rent, if any, attributable to the sale of RS Products which
shall be the responsibility of RS, as described in section 3.6),
premises liability insurance (subject to section 11.3), realty and
business taxes, common area and maintenance costs, mall marketing and
mall promotion expenses, HVAC, gas, water and electric utilities in
respect of each Mall Store and subsequent leasehold improvements which
have been approved by Rogers. RS acknowledges that Rogers will not
enter into a lease which provides for percentage rent on Commissions
or the service revenue generated by Customers.
3.6. RS shall be responsible for all operating costs of the Mall Stores,
including without limitation any percentage rent attributable to the
sale of RS Products and payroll costs, other than as specified above
in section 3.5, RS shall be responsible to prepare the certificates as
to percentage rent which may be required under the leases for the Mall
Stores and deliver same to the applicable landlord, with a copy to
Rogers. The percentage rent, if any, attributable to the RS Products,
calculated as a proportion of the total percentage rent payable at the
particular Mall Store, shall be based on the proportion that the sale
of RS Products is of the total sales at the Mall Store which are
included in the calculation of percentage rent. All employees of the
Mall Stores shall be employees of and the sole responsibility of RS
unless Rogers commences to operate a Mall Store itself and an offer or
offers of employment is made by Rogers which is accepted by the
employee(s).
3.7. Twenty-five percent (25%) of the total available selling space (the
"RS Space"), calculated by reference to the wall space and floor
space, as designated in the drawings for each Mall Store, as amended
with the prior approval of Rogers, shall be allocated to RS for the
sale by it of consumer electronics merchandise, related accessories
and ancillary services (the "RS Products"). The RS Products to be
offered in the Mall Stores will not compete with any items in Rogers
product line. Rogers shall not be entitled to any proceeds from the
sale of the RS Products, subject to section 9.2.3.4. Until modified by
the parties, the general categories of proposed RS Products are set
out in Schedule "I", however all RS Products which RS proposes to
offer for sale in a Mall Store shall be subject to the prior approval
of Rogers on a product-by-product basis; such approval may not
be unreasonably withheld except with respect to RS Products which are
wireless communications and ancillary products.
3.8. Rogers shall have all rights and interest in the telephone numbers
assigned to the Mall Stores by Xxxx Canada and the other local
exchange carriers.
3.9. RS shall be responsible for the installation, maintenance and costs of
a point-of-sale system for the Mall Stores. If requested by Xxxxxx, XX
will cooperate with Rogers in developing the technical bridge between
the RS point of sale system and the Rogers customer service system
referenced in section 5.7.
3.10. The parties agree to discuss the appropriateness and desirability of
offering their respective products and services through the other
party's distribution channels.
3.11. The parties agree to establish an advisory committee, consisting of a
representative or representatives of each party, to discuss from time
to time marketing initiatives that may be undertaken by the parties
with respect to the Services, Additional Non-Wireless Services or
Additional Wireless Services, as the case may be.
3.12. Rogers and RS agree to work together to develop a "co-management
structure" for the Mall Stores to jointly lead:
. Incentive plans
. Launch roll-outs and pre-launch management events
. Sales budget and sales results management
. Coaching
. Performance evaluation
. Formatted weekly calls between district sales managers and retail
sales representatives
4. COMPENSATION
4.1. In addition to Rogers other obligations as set out in this Agreement,
Rogers shall compensate RS as follows: (a) for Subscriptions obtained
by RS at the Mall Stores, at a rate equal to 80% of the amounts and on
the terms stated in the applicable compensation schedule (excluding
the Volume Bonus described in Schedule "A-4" and the Churn Bonus
described in Schedule A-5, each of which shall be paid at 100%); and
(b) for Subscriptions obtained
by RS at the RS Corporate Stores and RS Dealer Stores at a rate equal
to 100% of the amounts and on the terms stated in the applicable
compensation schedule (the "Commissions"). RS will be entitled to earn
margin on the sale of Prepaid Products, in the amounts and on the
terms stated in Schedule "A-2" and to earn margin on Margin-based
Products. During the term of this Agreement RS will be entitled,
subject to the 80% rate applicable in Mall Stores, to not less than
the same commission for Wireless Subscriptions obtained by RS which is
payable upon commencement of the Wireless Subscription, as is then
currently offered generally to Independent Dealers. RS shall be
entitled to earn residual commissions, volume bonus and churn bonus in
accordance with Schedules "A-3", "A-4" and "A-5", respectively.
4.2. Rogers shall pay to RS the Commission for each Paging Subscription as
set forth in Schedule "B". During the term of this Agreement RS will
be entitled to not less than the same Commission for a Paging
Subscription as is then currently offered generally to Independent
Dealers.
4.3. Rogers shall be entitled to amend Schedules "A-1", "A-2" or "B" from
time to time on at least sixty (60) days notice, provided that the
reductions during any twelve month period in the Average Base
Commission shall not exceed the actual dollar reductions in Average
Equipment Cost during such twelve month period, plus or minus five
percent (5%) of such reductions (the "Proviso"). If during any twelve
month period, the Average Base Commission is reduced by greater than
the reduction in Average Equipment Cost plus or minus 5% during such
twelve month period, then, provided that the reduction in Average Base
Commission for the preceding twenty-four month period is not greater
than the reduction in Average Equipment Cost plus or minus 5%, Rogers
shall be deemed to be in compliance with the Proviso. For greater
certainty, an example of how the Proviso is to be calculated is
attached as Schedule "L".
RS acknowledges and agrees that: (a) the Commission amounts described
in Schedule A-1 are aggregated amounts representing both compensation
for obtaining a new Customer ("Sales Commission") and assistance to
Radio Shack in purchasing Equipment for resale to Customers
("Equipment Assistance"); and (b) notwithstanding the Proviso, Rogers
may determine from time to time, in its discretion, to separate these
two amounts, and in such event Base Commission shall not include
Equipment Assistance, provided that such change is also applied to the
Independent Dealers; and (c) circumstances in the wireless
communications marketplace may evolve or develop during the term of
this Agreement such that it would become
inappropriate to continue to apply the Proviso. In the event that
Rogers or RS makes such determination as is set out in (b) or (c)
herein, the parties agree to negotiate in good faith a method to limit
reductions in Average Base Commission consistent with the Proviso
herein. If the parties cannot reach agreement within 90 days, then
either party may submit the issue to binding arbitration in accordance
with the Arbitrations Act (Ontario).
4.4. During the term of this Agreement, Rogers may determine that
Additional Non-Wireless Services and/or Additional Wireless Services
are to be offered through the Mall Stores and shall deliver to RS a
Commission schedule setting forth the compensation for offering each
such Service, which shall form part of this Agreement. RS shall be
entitled, subject to a rate of sixty (60%) to be applicable in the
Mall Stores, to not less than the same commission for such additional
services as then offered generally to Independent Dealers, provided
that if Equipment Assistance is to be provided as part of such
additional service, RS and Rogers shall negotiate in good faith the
appropriateness of increasing the percentage allocation of commission
payable to RS for sales by RS within the Mall Stores.
4.5. Rogers may from time to time in its sole discretion, authorize RS to
offer products and Services, with respect to which no Commissions or
other compensation will be paid by Rogers to RS. RS acknowledges and
agrees that, unless otherwise specified by Rogers in writing, in its
entire compensation for the sale of any such products and Services
shall be the margin between the amount that it pays to Rogers for such
products and Services and the price for which RS sells such products
and Services to Customers ("Margin-based Products").
5. RS' OBLIGATIONS
5.1. RS to Promote the Services - RS agrees to use its commercially
reasonable best efforts to promote the Services (and, as determined by
Rogers, the Additional Non-Wireless Services and Additional Wireless
Services) and the Equipment and solicit Subscriptions at the Mall
Stores in accordance with the Operating Procedures and the terms of
this Agreement, provided that Rogers provides or causes to be provided
sales and promotional material in support thereof. RS acknowledges
that Rogers shall determine which Services, Additional Non-Wireless
Services, Additional Wireless Services, Equipment, plans, packages and
promotions are to be offered through the Mall Stores. Notwithstanding
the foregoing but subject to section 6.1.3, RS shall not be obliged to
advertise the Mall Stores.
5.2. Maintenance of Rogers Standards - RS shall maintain at the Mall Stores
such marketing, selling and servicing standards as are appropriate
considering the quality and reputation of the Services (and, if
applicable, Additional Non-Wireless Service, or Additional Wireless
Service) and as set out in the Operating Procedures. RS acknowledges
that compliance with such standards in all material respects is
necessary in order to properly promote the Services (and, if
applicable, Additional Non-Wireless Service, or Additional Wireless
Service) and for RS to retain its status with Rogers as provided for
in this Agreement. For greater certainty, RS shall not refer to Rogers
or use any Rogers trademarks, tradenames or logos in any advertising
which has not been expressly approved by Rogers.
5.3. Affirmative Covenants of RS
5.3.1. Mall Stores - RS agrees at all times during the term of
this Agreement at each Mall Store to:
5.3.1.1. solicit and accept only Subscriptions and not,
directly or indirectly, solicit or accept
subscriptions for the services offered by or on behalf
of or accept compensation from any other provider of
a Wireless Communications System;
5.3.1.2. comply with the Minimum Performance Standards;
5.3.1.3. provide sales reports as may be stipulated from time
to time in the Operating Procedures;
5.3.1.4. display only Rogers signage at the Mall Stores except
as otherwise approved by Rogers pursuant to
section 5.6;
5.3.1.5. use commercially reasonable efforts to promote and
maintain the goodwill and reputation of Rogers and the
Services (and, if applicable, the Additional
Non-Wireless Services and Additional Wireless
Services);
5.3.1.6. carry on at all Mall Stores the business contemplated
by this Agreement;
5.3.1.7. promote and offer the products and services, and only
the products and services, prescribed from time to
time by Rogers. RS acknowledges that the promotion and
offering of products and services other than those
approved by Rogers is injurious to the goodwill and
reputation of Rogers, its Affiliates and the Services (and,
if applicable, the Additional Non-Wireless Services and
Additional Wireless Services);
5.3.1.8. comply with the Operating Procedures in all material
respects;
5.3.1.9. provide quality activation and post sale service in
connection with the sale of Equipment and activation of the
Services (and, if applicable, the Additional Non-Wireless
Services and Additional Wireless Services) and in accordance
with the Operating Procedures in all material respects.
Without limiting the generality of the foregoing, RS will
cause, at least on a semi-annual basis, all of its personnel
involved in the sale and/or promotion of the Services (and,
if applicable, the Additional Non-Wireless Services and
Additional Wireless Services) and Equipment to attend
training seminars at mutually agreed locations and times, in
order to ensure that all personnel who deal with Customers
have the knowledge of the Services (and, if applicable, the
Additional Non-Wireless Services and Additional Wireless
Services) and Equipment necessary to be able to service the
Customers properly. RS will also arrange for any of its new
sales or service representatives to attend such training
seminars within 60 days of being hired by RS;
5.3.1.10. provide service to all Customers requesting service from RS
regardless of from whom the Customer purchased the Equipment
or subscribed to a Service (and, if applicable, the
Additional Non-Wireless Services and Additional Wireless
Services), including without limitation, Equipment warranty
service or exchange, accepting xxxx payments, changes to
cellular telephone and pager numbers and other such
ancillary services prescribed from time to time by Rogers
(but excluding the installation of Equipment); provided that
Rogers will from time to time prescribe reasonable rates of
compensation to RS for providing material ancillary
services;
5.3.1.11. use all cellular telephone numbers provided by Rogers
for Customer demonstrations solely for such purpose and not
rent, loan or permit the use of such cellular telephone
numbers for any other purpose whatsoever without the prior
written consent of Rogers and further agrees to abide by the
conditions described in Schedule "F";
5.3.1.12. maintain sufficient inventory levels of, and display for
sale, all merchandise sold by it to meet the needs of
Customers and prospective Customers in a timely fashion and
shall submit orders for Equipment ordered from Rogers to
Rogers promptly and in anticipation of RS' needs for the
ensuing periods;
5.3.1.13. devote all resources, time and attention reasonably
necessary to the establishment and development of the Mall
Stores;
5.3.1.14. devote all resources, time and attention reasonably
necessary to the operation of the Mall Stores;
5.3.1.15. operate the Mall Stores in accordance with all material
respects and provisions of the Operating Procedures with due
diligence and efficiency in a quality and reputable manner,
during such days, nights and hours as may be designated by
the landlord for the Mall Stores and/or, acting reasonably,
Rogers;
5.3.1.16. accept, implement, use and display as part of the Mall
Stores all aspects of the Services, and all modifications
and changes thereto as Rogers may make from time to time;
5.3.1.17. submit when due, or otherwise, if no due date is specified,
as promptly as practicable, upon reasonable request, all
reports and other documents to be provided hereunder to
Rogers;
5.3.1.18. ensure that at all times prompt, courteous and efficient
service is accorded to every Customer and prospective
Customer, whether or not a Customer through RS' own efforts,
and adhere to the highest standards of honesty,
integrity, fair dealing and ethical conduct in all dealings
with its customers, suppliers, Rogers and the public;
5.3.1.19. use its commercially reasonable best efforts to ensure that
every application or other contract for a Service (and, if
applicable, the Additional Non-Wireless Services and
Additional Wireless Services) is completed by the potential
Customer fully, accurately and without apparent
misrepresentation;
5.3.1.20. at RS' cost, maintain the internal and external condition
and appearance of the Mall Stores, including all signage, as
an attractive, modern, clean, convenient and efficiently
operated business offering high quality products and prompt
and courteous service, and effect such maintenance of and
repairs to the Mall Stores and the Equipment installed
therein as is reasonably required on a regular basis to
maintain such condition and appearance;
5.3.1.21. participate fully in all national, regional and local sales
and service programs and promotions which Rogers asks it to
participate in from time to time;
5.3.1.22. strictly comply with all applicable municipal, provincial
and federal laws and regulations and the terms and
conditions of all applicable orders, permits, certificates
and licences, and obtain and at all times maintain all
applicable permits, certificates and licences necessary or
desirable for the proper conduct of the Mall Stores pursuant
to the terms of this Agreement and remit and pay when due
all applicable sales and payroll taxes, duties and charges
required to be remitted and paid by it;
5.3.1.23. maintain its status as an authorized retail outlet and
warranty depot for the Equipment required by Rogers to be
sold, rented or leased by RS in connection with the
operation of the Mall Stores;
5.3.1.24. at all times cooperate with Rogers representatives and
report promptly to Rogers any information which may come to
RS' attention regarding complaints or claims with respect to
the Services (and, if applicable, the Additional
Non-Wireless Services and Additional Wireless Services) and
the Equipment, customer needs and interests and local market
conditions; and
5.3.1.25. in connection with RS' provision of Additional Non-Wireless
Services and Additional Wireless Services and related
equipment and solicitation of Subscriptions therefor comply
with all the provisions contained in the applicable
schedules as mutually developed from time to time, in
addition to all other terms and conditions of this
Agreement.
5.3.2. RS Corporate Stores - RS agrees at all times during the term of this
Agreement at each RS Corporate Store to:
5.3.2.1. subject to section 16.2, promote and offer only the Services
offered by Rogers and not, directly or indirectly, solicit
or accept subscriptions for the services offered by or on
behalf of or accept compensation from any other provider of
a Wireless Communications System;
5.3.2.2. use commercially reasonable efforts to promote and maintain
the goodwill and reputation of Rogers and the Services;
5.3.2.3. provide quality activation and post sale service in
connection with the sale of Equipment and activation of the
Services (and, if applicable, the Additional Non-Wireless
Services and Additional Wireless Services) and in accordance
with the Operating Procedures in all material respects
regarding Subscriptions and activations. Without limiting
the generality of the foregoing, RS covenants to cause, at
least on a semi-annual basis, all of its personnel involved
in the sale and/or promotion of the Services (and, if
applicable, the Additional Non-Wireless Services and
Additional Wireless Services) and Equipment to attend
training seminars at mutually agreed locations and times, in
order to ensure that all personnel who deal with Customers
have the knowledge of the Services (and, if applicable, the
Additional Non-Wireless Services and Additional Wireless
Services) and Equipment necessary to be able to service the
Customers
properly. RS will also arrange for any of its new sales or
service representatives to attend such training seminars
within 60 days of being hired by RS;
5.3.2.4. provide service to all Customers requesting service from RS
regardless of from whom the Customer purchased the Equipment
or subscribed to the Services, (and, if applicable, the
Additional Non-Wireless Services and Additional Wireless
Services) including without limitation, Equipment warranty
service or exchange, accepting xxxx payments (which, if
introduced by Rogers, shall be a drop box), changes to
cellular telephone and pager numbers, but excluding
installations and other such ancillary services prescribed
from time to time by Rogers (but excluding the installation
of Equipment); provided that Rogers will from time to time
prescribe reasonable rates of compensation to RS for
providing material ancillary services;
5.3.2.5. use all cellular telephone numbers provided by Rogers for
Customer demonstrations solely for such purpose and not
rent, loan or permit the use of such cellular telephone
numbers for any other purpose whatsoever without the prior
written consent of Rogers and further agrees to abide by the
conditions described in Schedule "F";
5.3.2.6. ensure that at all times prompt, courteous and efficient
service is accorded to every Customer and prospective
Customer, whether or not a Customer through RS' own efforts,
and adhere to the highest standards of honesty, integrity,
fair dealing and ethical conduct in all dealings with its
customers, suppliers, Rogers and the public;
5.3.2.7. use its commercially reasonable best efforts to ensure that
every application or other contract for the Services (and,
if applicable, the Additional Non-Wireless Services and
Additional Wireless Services) is completed by the potential
Customer fully, accurately and without apparent
misrepresentation;
5.3.2.8. to the extent practicable participate fully in all national,
regional and local sales and service programs and
promotions which Rogers asks it to participate in from time
to time;
5.3.2.9. at all times cooperate with Rogers representatives and
report promptly to Rogers any information which may come to
RS' attention regarding complaints or claims with respect to
the Services (and, if applicable, the Additional
Non-Wireless Services and Additional Wireless Services) and
the Equipment, customer needs and interests and local market
conditions; and
5.3.2.10. maintain a Store-in-Store Arrangement approved by
Rogers in accordance with section 6.1.6, at each RS
Corporate Store, excluding the non-exclusive RS Corporate
Stores listed in Schedule "H-1".
5.4. Negative Covenants of RS
5.4.1. Mall Stores - RS agrees that at all times during the term of
this Agreement at each Mall Store RS shall not:
5.4.1.1. directly, indirectly or by inference, orally or in writing,
make or give any guarantees, representations or warranties,
express or implied, with respect to Equipment, rate
packages, plans, promotions, the Services (and, if
applicable, the Additional Non-Wireless Services and
Additional Wireless Services) or the provision of the
Services (and, if applicable, the Additional Non-Wireless
Services and Additional Wireless Services) by Rogers and its
Affiliates to Customers or prospective Customers, other than
to refer them to information concerning the Equipment or
Services (and, if applicable, the Additional Non-Wireless
Services and Additional Wireless Services) as Rogers and its
Affiliates from time to time provides in writing, or make
any misrepresentations of any kind with respect to any of
the foregoing;
5.4.1.2. sell or offer to sell any Subscriptions or any aspect of
the Services (and, if applicable, the Additional
Non-Wireless Services and Additional Wireless Services) to
any person or group of persons at rates or prices other than
those specified by Rogers and its Affiliates from time to
time, or
provide incentives or subsidies which may have the effect of
doing so, without first having obtained the approval of
Rogers. This prohibition does not apply to incentives or
subsidies on Equipment alone;
5.4.1.3. engage in any unfair or unethical trade practices or any
other similar business practice with respect to the
Equipment or Services (and, if applicable, the Additional
Non-Wireless Services and Additional Wireless Services), nor
make any false or misleading representations regarding any
Equipment or the Services;
5.4.1.4. make or cause to be made any alterations to the exterior or
material alterations to the interior of the Mall Stores so
as to modify the appearance thereof or any alterations or
replacements of any of the leasehold improvements, fixtures
or equipment at the Mall Stores without first having
obtained the prior approval of Rogers;
5.4.1.5. modify any device to emulate the ESN (electronic serial
number) of any other device (including without limitation
providing "extension" cellular service with the same MIN
(mobile identification number) or ESN phones); modify any
cellular telephone or other hardware, software or firmware
(programming) or memory for the purpose of altering the
phone's ESN; or possess equipment to execute such emulation
or modification, without the prior approval of Rogers;
5.4.1.6. induce, assist or encourage any person to avoid any charges
relating to the Equipment or the Services (and, if
applicable, the Additional Non-Wireless Services and
Additional Wireless Services), including without limitation
activation fees, monthly access fees, features charges, toll
charges, local airtime charges, or long distance charges;
5.4.1.7. induce, assist or encourage any person to misrepresent
themselves or details about themselves on any application or
contract for the Services (and, if applicable, the
Additional Non-Wireless Services and Additional Wireless
Services);
5.4.1.8. re-sell any of the Services (and, if applicable, the
Additional Non-Wireless Services and Additional Wireless
Services) to any person, including without limitation any
Customer, or bundle any parts of the Services (and, if
applicable, Additional Non-Wireless Service, or Additional
Wireless Service) or make available the Services (and, if
applicable, the Additional Non-Wireless Services and
Additional Wireless Services) for any person not otherwise
qualified by existing Services (and, if applicable, the
Additional Non-Wireless Services and Additional Wireless
Services) definitions, except as specifically authorized by
Rogers in writing from time to time;
5.4.1.9. reallocate Subscriptions or redirect Customers and
prospective Customers among the Mall Stores or the RS
Corporate Stores or otherwise;
5.4.1.10. carry on any other business at any Mall Stores other than
the business permitted by this Agreement; or
5.4.1.11. offer or promote any products and services other than
those approved by Rogers in accordance with this Agreement.
5.4.2. RS Corporate Stores - RS agrees that at all times during the term of
this Agreement, at each RS Corporate Store, RS shall not:
5.4.2.1. directly, indirectly or by inference, orally or in writing,
make or give any guarantees, representations or warranties,
express or implied, with respect to Equipment, rate
packages, plans, promotions, the Services (and, if
applicable, the Additional Non-Wireless Services and
Additional Wireless Services) or the provision of the
Services (and, if applicable, the Additional Non-Wireless
Services and Additional Wireless Services) by Rogers and its
Affiliates to Customers or prospective Customers, other than
to refer them to information concerning the Equipment or
Services (and, if applicable, the Additional Non-Wireless
Services and Additional Wireless Services) as Rogers and its
Affiliates from time to time provides in
writing, or make any misrepresentations of any kind with respect
to any of the foregoing;
5.4.2.2. sell or offer to sell any Subscriptions or any aspect of the
Services (and, if applicable, the Additional Non-Wireless Services
and Additional Wireless Services) to any person or group of
persons at rates or prices other than those specified by Rogers
and its Affiliates from time to time, or provide incentives or
subsidies which may have the effect of doing so, without first
having obtained the approval of Rogers. This prohibition does not
apply to incentives or subsidies on Equipment alone;
5.4.2.3. engage in any unfair or unethical trade practices or any other
similar business practice with respect to the Equipment or
Services (and, if applicable, the Additional Non-Wireless Services
and Additional Wireless Services), nor make any false or
misleading representations regarding any Equipment or the Services
(and, if applicable, the Additional Non-Wireless Services and
Additional Wireless Services);
5.4.2.4. modify any device to emulate the ESN (electronic serial number) of
any other device (including without limitation providing
"extension" cellular service with the same MIN (mobile
identification number) or ESN phones); modify any cellular
telephone or other hardware, software or firmware (programming) or
memory for the purpose of altering the phone's ESN; or possess
equipment to execute such emulation or modification, without prior
approval from Rogers;
5.4.2.5. induce, assist or encourage any person to avoid any charges
relating to the Equipment or the Services (and, if applicable, the
Additional Non-Wireless Services and Additional Wireless
Services), including without limitation activation fees, monthly
access fees, features charges, toll charges, local airtime
charges, or long distance charges;
5.4.2.6. induce, assist or encourage any person to misrepresent themselves
or details about themselves on any application
or contract for Services (and, if applicable, the
Additional Non-Wireless Services and Additional Wireless
Services);
5.4.2.7. re-sell any of the Services (and, if applicable, the
Additional Non-Wireless Services and Additional Wireless
Services) to any person, including without limitation any
Customer, or bundle any parts of the Service (and, if
applicable, the Additional Non-Wireless Services and
Additional Wireless Services) or make available the
Services (and, if applicable, Additional Non-Wireless
Service, or Additional Wireless Service) for any person not
otherwise qualified by existing Services (and, if
applicable, the Additional Non-Wireless Services and
Additional Wireless Services) definitions, except as
specifically authorized by Rogers in writing from time to
time;
5.4.2.8. reallocate Subscriptions or redirect Customer and
prospective Customers among the Mall Stores or the RS
Corporate Stores or otherwise; or
5.4.2.9. use the Store-in-Store Arrangement within the RS Corporate
Stores, described in section 6.1.6, for any purpose other
than the offering of the Services and the Equipment (and,
if applicable, Additional Non-Wireless Service, or
Additional Wireless Service).
5.5. "Xxxxxx AT&T Wireless The Communications Store Express" Prominence of
Identification - Rogers and RS acknowledge that it is of fundamental
importance to the success of each Mall Store that its identity as such be
prominently reinforced to the general public. Rogers and RS therefore
agree that the sole feature of each Mall Store's identity conveyed to the
public will be as determined from time to time by Rogers and that,
subject to section 3.7, all marketing tools (including advertising and
signage), business forms and documents will be prepared consistently with
this objective. Until otherwise determined by Rogers, each Mall Store
shall be identified as "Xxxxxx AT&T Wireless The Communications Store
Express".
5.6. Signage - All signage and interior designs and displays shall be
constructed and erected in a form and pursuant to plans approved by
Rogers. Title to all signage bearing the "Xxxxxx AT&T Wireless" logo or
other Rogers trademarks shall remain at all times with Rogers. All
non-Rogers signage,
including all RS signage, in Mall Stores, except as provided in the
Operating Procedures, is subject to Rogers prior approval, which shall not
be unreasonably withheld.
5.7. Activation Terminal - RS will maintain in good operating condition the
terminal and other related equipment and software that Rogers may provide
for the purpose of accessing and transmitting information in order to
effect activations of the Services and other customer services including
xxxx payments (and, if applicable, the Additional Non-Wireless Services and
Additional Wireless Services). Any costs incurred due to the misuse or
damage to the terminal and equipment shall be borne by RS, as will ongoing
transmission line charges between RS and Rogers. Title to such equipment
shall remain at all times with Rogers. Except as noted above, Rogers shall
be responsible for all costs of the activation and customer service
terminals.
5.8. Representations of RS - As of the date hereof, RS hereby covenants,
represents and warrants to Rogers as follows, and acknowledges that Rogers
is relying upon such covenants, representations and warranties in entering
into this Agreement:
5.8.1. Organization and Good Standing - RS is a corporation duly
incorporated and is validly existing as a corporation under the
laws of the jurisdiction of its organization with all requisite
corporate power and authority to own, lease and licence its
properties and to conduct its business as now conducted;
5.8.2. Qualification - RS is duly licensed and qualified as a foreign
corporation in each jurisdiction which requires any licence or
qualification to carry on its business therein, except where the
failure to do so would not have a material adverse effect on such
entity's business operations taken as a whole;
5.8.3. Due Authorization, Etc. - RS has full legal right and all
necessary corporate power, authority and capacity to enter into
this Agreement and to carry out its obligations hereunder and the
execution and delivery hereof and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action;
5.8.4. Enforceability - This Agreement has been duly executed and
delivered and constitutes a valid and binding obligation of RS
enforceable against it in accordance with its terms subject,
however, to limitations with respect to enforcement imposed by law
in connection with bankruptcy or similar proceedings and to the
extent that equitable remedies, such as specific performance and
injunction, are in the discretion of the court from which they are
sought;
5.8.5. Absence of Conflicting Agreements - The execution and delivery of
this Agreement by RS and the consummation by it of this Agreement:
5.8.5.1. will not result in a breach or violation of any
provision of the charter or by-laws (as amended or
restated) of RS;
5.8.5.2. to the best of the knowledge of RS, will not
materially violate any applicable statue,
regulation, decree, law, order or judgement to which
it or its property is subject; and
5.8.5.3. to the best of the knowledge of RS (after due
inquiry), will not result in a material breach of or
materially violate any provision of any agreement to
which RS is a party which breach or violation would,
taken as a whole, adversely affect its availability
to carry out its obligations hereunder; and
5.8.6. Consents and Approvals - To RS' current actual knowledge, no
approval, consent, waiver, authorization, order, designation,
filing, clearance or similar grant of authority is required from
or of any governmental regulatory or legislative body or tribunal
in connection with the entering into by RS of this Agreement and
the consummation of the transactions contemplated hereby.
5.8.7. Recitals - The representations made by RS in the recitals to this
Agreement are true and correct.
5.8.8. Intellectual Property Rights - RS owns or possesses adequate
licences or other rights to use all trademarks, service marks or
trade names necessary to entitle RS to conduct its business as now
conducted.
5.9. RS Dealer Stores - Rogers acknowledges that RS cannot bind the RS Dealer
Stores. RS undertakes to use its commercially reasonable best efforts to
promote the offering of the Services (and, if applicable, the
Additional Non-Wireless Services and Additional Wireless Services) by
the RS Dealer Stores.
5.10. Non-Solicitation of Rogers Employees - During the term of this
Agreement, RS shall not solicit any person employed by Rogers to leave
their employment with Rogers without first having obtained the
approval of Rogers.
5.11. Advertising Funding - RS and Rogers will work in good faith to ensure
the appropriate use of and calendar allocation of the advertising
funding being provided by Rogers pursuant to sections 6.1.2 and 6.1.3.
RS acknowledges the importance to Rogers of allocating significant
advertising funding to the fourth calendar quarter.
5.12. Boxed Products - RS shall be authorized, but not compelled, as
determined by Rogers, to offer Boxed Products as such products may be
developed or defined by Rogers from time to time, within the RS
Corporate Stores and RS Dealer Stores and such authorization shall be
governed by the following rules:
5.12.1 on a market-by-market basis wherein "market" is defined as a
grouping of RS Corporate Stores or RS Dealer Stores where
all or substantially all of the RS generated media (e.g.,
flyers) is distinct from its national advertising activities
which are intended to be read or viewed outside an
individual local market.
5.12.2 RS will be entitled, in its discretion, to determine which
of the markets will offer the Boxed Products on a
quarter-by-quarter basis, provided however that RS Corporate
Stores and RS Dealer Stores shall not be entitled to offer
Boxed Product and core products (as such "core product" is
developed or defined from time to time by Rogers) at the
same time.
5.12.3 RS shall not unbundle the Boxed Product or otherwise offer
the Boxed Product and other Margin-based Products on a basis
which would entitle RS to Commission in accordance with
Schedule "A-1". RS agrees to offer Boxed Products strictly
in accordance with the rules and procedures established for
such purpose from time to time by Rogers.
5.12.4 Notwithstanding anything contained in this Agreement or the
schedules hereto, Wireless Subscriptions obtained through
the
offering of Boxed Products shall not be included in the
calculation of entitlement for cooperative advertising
funding or Residual Commissions but shall be deemed to be an
Activation for the purposes of Schedule A-4.
6. ROGERS OBLIGATIONS
6.1. Covenants of Xxxxxx - Xxxxxx agrees during the term of the Agreement
to:
6.1.1. actively advertise and promote the Services (and, if
applicable, the Additional Non-Wireless Services and
Additional Wireless Services) by such means as it may
determine from time to time and supply RS, at no cost to RS,
with Rogers promotional literature as well as any other
material which Rogers may commit to provide free of charge
from time to time;
6.1.2. provide cooperative advertising funding to RS with respect
to Wireless Subscriptions obtained by the RS Corporate
Stores and RS Dealer Stores, in accordance with the policy
established by Rogers from time to time. The current
cooperative advertising policy is attached as Schedule "G".
6.1.3. provide advertising funding to RS of $* for each incremental
Activation in the Mall Stores exceeding the number of
Activations obtained by RS in the Mall Stores during the
previous calendar year. For the purpose of this subsection,
an Activation means a new Wireless Subscription to the
Rogers System, including a Wireless Subscription for voice,
prepaid and data Services but excluding one-way paging
Services. Notwithstanding the foregoing, Rogers agrees to
provide to RS advertising funding for the Mall Stores in
2002 of not less than $1.4 million. In 2003 and each
subsequent calendar years during the term of this Agreement,
Rogers agrees to provide to RS a minimum of $* million in
advertising funding for the Mall Stores. The current
co-operative advertising policy (attached as Schedule "G")
will apply (including pre-approval of expenditures) and RS
will be required to match Rogers' contributions @ $* per
Activation once the minimum funding provided by Rogers as
described above has been exceeded.
6.1.4. provide, at its expense, cellular telephone lines for
demonstration purposes, in accordance with Schedule "F".
Such cellular telephone
lines will be included in RS' account and RS agrees to assume
full responsibility for all long distance charges incurred;
6.1.5. provide introductory level training seminars for RS' sales
personnel and technical staff as referred to in sections
5.3.1.9 and 5.3.2.3 of this Agreement;
6.1.6. provide funds to be used solely for the purpose of developing a
Store-in-Store Arrangement, consisting of space and fixtures
within each new RS Corporate Store which is not operating as of
January 1, 2002, dedicated to the offering of the Services and
the Equipment (and, if applicable, the Additional Non-Wireless
Services and Additional Wireless Services). RS and Rogers
shall, on an ongoing basis, jointly develop an overall budget
and prototype design specifications and construction layouts
for all such RS Corporate Stores leasehold improvements and
fixtures, all of which shall be subject to Rogers' prior
approval. RS shall be required to account to Rogers for all
expenses claimed by RS pursuant to this section 6.1.6;
6.1.7. refrain from soliciting any person employed by RS to leave
their employment with RS without first having obtained the
approval of RS.
6.1.8. support three multi-tiered promotions of the Services per year,
exclusive to RS of an amount not less than the 2000 levels
(approximately $* per promotion) and increasing at a rate of no
less than 6% per year. For the purpose of this subsection,
"Multi-tiered promotions" means a promotion of the Services in
which there are incentives for each of the customer, the sale
representative and/or sales management.
6.1.9. include the RS corporate logo in all national print advertising
of the Services, which are being offered in the RS Corporate
Stores. The RS logo shall be larger than and in first position
ahead of any other point of distribution (including for
example, Rogers Video). This does not apply to brand image
advertising or to Services not being offered by RS. While the
---
parties acknowledge that regional advertising initiatives may
vary to accommodate specific regional distribution, Rogers
shall use commercially reasonable efforts include the RS
corporate logo in applicable regional print
advertising such as print media referencing "call 1-800
Imagine", "shop on line" or "visit a Rogers AT&T location".
6.1.9.1. Rogers shall ensure a that approximately 33% of tag
lines in radio advertising outside Ontario include the
phrase "available at RS stores" or similar phrases as
may be determined by Rogers and agreed to in advance
by RS.
6.1.9.2. Rogers shall ensure that all tag lines in radio
advertising within Ontario include the phrase
"available at RS" or similar phrase as may be
determined by Rogers and agreed to in advance by RS
provided that such phrase or subsequently agreed upon
version shall preceed a reference to any other
retailer that is not an Affiliate of Rogers.
RS acknowledges that the tag line will include
additional phrases as determined by Rogers.
6.2. Representations by Rogers - As of the date hereof, Rogers hereby
covenants, represents and warrants to RS as follows, and acknowledges
that RS is relying upon such covenants, representations and warranties
in entering into this Agreement:
6.2.1. Organization and Good Standing - Rogers is a corporation duly
incorporated and is validly existing as a corporation under the
laws of the jurisdiction of its organization with all requisite
corporate power and authority to own, lease and licence its
properties and to conduct its business as now conducted;
6.2.2. Qualification - Rogers is duly licensed and qualified as a
foreign corporation in each jurisdiction which requires any
licence or qualification to carry on its business therein,
except where the failure to do so would not have a material
adverse effect on Rogers business operations taken as a whole;
6.2.3. Due Authorization, Etc. - Rogers has full legal right and all
necessary corporate power, authority and capacity to enter into
this Agreement and to carry out its obligations hereunder and
the execution and delivery hereof and the consummation of the
transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of Rogers;
6.2.4. Enforceability - This Agreement has been duly executed and
delivered and constitutes a valid and binding obligation of
Rogers enforceable against it in accordance with its terms
subject, however, to limitations with respect to enforcement
imposed by law in connection with bankruptcy or similar
proceedings and to the extent that equitable remedies, such as
specific performance and injunction, are in the discretion of
the court from which they are sought;
6.2.5. Absence of Conflicting Agreements - The execution and delivery
of this Agreement by Rogers and the consummation by it of this
Agreement:
6.2.5.1. will not result in a breach or violation of any
provision of the charter or by-laws (as amended or
restated) of Rogers;
6.2.5.2. to the best of the knowledge of Xxxxxx, xxxx not
materially violate any applicable statue, regulation,
decree, law, order or judgement to which it or its
property is subject; and
6.2.5.3. to the best of the knowledge of Rogers (after due
inquiry), will not result in a material breach of or
materially violate any provision of any agreement to
which Rogers is a party which breach or violation
would, taken as a whole, adversely affect Rogers
ability to carry out its obligations hereunder;
6.2.6. Consents and Approvals - To Rogers current actual knowledge no
approval, consent, waiver, authorization, order, designation,
filing, clearance or similar grant of authority is required
from or of any governmental regulatory or legislative body or
tribunal in connection with the entering into by Rogers of this
Agreement and the consummation of the transactions contemplated
hereby; and
6.2.7. General Approvals - Rogers owns, possesses or has obtained all
material permits, licenses, franchises, certificates, consents,
orders, approvals and other authorizations of governmental or
regulatory authorities as are necessary to own or lease, as the
case may be, and to operate its properties and to carry on its
business as presently conducted, including the Services
(excluding municipal licences for the Mall Stores, which shall
be the responsibility of RS), and
neither Rogers, nor its Affiliates, have received any notice
of any proceedings relating to revocation or modification of
any such licenses, permits, certificates, consents, orders,
approvals or authorizations.
6.2.8. Recitals - The representations made by Rogers in the recitals
to the Agreement are true and correct.
6.2.9. Intellectual Property Rights - Rogers owns or possesses
adequate licences or other rights to use all trademarks,
service marks or trade names necessary to entitle Rogers to
conduct its business as now conducted.
6.2.10. Digital Coverage - Rogers digital cellular radio telephone
service area, which is capable of receiving PCS service covers
approximately 70% or more of the population of Canada and
includes the metropolitan areas of Vancouver, Calgary,
Edmonton, Winnipeg, Toronto, Montreal and Ottawa.
6.2.11. To the best of Rogers actual knowledge (relying on the
information provided to Rogers by RS with respect to RS
Corporate Stores), the RS Corporate Stores listed in Schedules
"H-1" and "H-2" are the only RS Corporate Stores which are not
located within areas serviced by the applicable Service.
7. BILLING SYSTEM
7.1. Obligation to Collect - Upon acceptance of a Subscription by Rogers,
the relevant Customer shall become a customer of Rogers and Rogers
shall invoice the Customer and offer and furnish such other invoicing
services as Rogers deems appropriate. Subject to sections 5.3.1.10,
5.3.2.4 and the rules pertaining thereto which Rogers may from time to
time prescribe, Rogers shall be responsible for collection from
Customers of all charges for Subscriptions for Services.
7.2. Changes of Rates - RS acknowledges that Rogers may from time to time
vary the rates charged by Rogers for Services and RS further
acknowledges that such rates may be subject to regulation by the CRTC.
8. RS' SERVICE RESPONSIBILITY
8.1. Responsibility of RS for Service Capabilities - Rogers and RS agree
that a high degree of technical sophistication, capability and
training is needed in connection with the proper sale, and activation
of Equipment. It is therefore a condition of this Agreement that RS be
at all times duly qualified and equipped to provide to the Customers
and prospective Customers service with regard to the activation, use
and maintenance of the Equipment and the use of the Services (and, if
applicable, the Additional Non-Wireless Services and Additional
Wireless Services) as described in the Operating Procedures.
8.2. At each Mall Store and RS Corporate Store, RS shall (i) employ an
appropriate number (as determined by RS in its sole discretion) of
qualified sales and service persons and ensure that at least one
trained sales/service person is within each Mall Store during all
business hours; and (ii) efficiently, courteously and properly provide
and perform sales, activation and will honour in-warranty service on
Equipment.
9. TERM OF AGREEMENT
9.1. Term - Subject to section 9.2, unless earlier terminated under Article
10 hereof, this Agreement shall commence on the date first written
above and remain in effect until December 31, 2006. In the event this
Agreement expires, and the parties do not enter in a new agreement
governing the subject matter hereof, Rogers may continue to accept
Subscriptions submitted by RS, in which event this Agreement shall be
deemed to continue on a month to month basis until either party, upon
thirty (30) days written notice to the other, terminates this
Agreement.
9.2. Renewal Procedures
9.2.1. In the event that RS wishes to renew this Agreement, it shall
provide written notice to Rogers by October 31, 2005, setting
forth its proposal as to the Mall Stores which it would be
prepared to operate during any renewal term. If no renewal
notice is delivered by RS by October 31, 2005, the Agreement
shall expire on December 31, 2006. If a timely renewal notice
is delivered to Rogers by RS, then by December 31, 2006 Rogers
shall provide a written response to RS, indicating which Mall
Stores Rogers would be prepared to include in any renewal term.
Any Mall Stores which are not referenced on both the RS and
Rogers proposals (the "Rejected Mall Stores") shall not be
subject to renewal, and Rogers may allow the
leases for the Rejected Mall Stores to expire or offer same to
another agent or dealer as it determines in its sole discretion.
Provided however, that RS shall be entitled, by written notice to
Rogers on or before January 31, 2006, to elect to negotiate, on
such terms as may be acceptable to it, leases for those Mall
Stores which were rejected by Rogers but were not rejected by RS
in their respective proposals, which shall be used only for the
purpose of operating RS Corporate Stores or RS Dealer Stores. RS
shall not be entitled to negotiate or enter into a lease with
respect to those Mall Stores excluded from its proposal.
9.2.2. The parties shall negotiate the terms of the proposed renewal,
provided that any renewal would be for a term of five years
(without any further automatic right of renewal) and would be
based on a similar allocation of responsibilities, but excluding
any financial obligations, which shall be subject to the
negotiation of mutually acceptable terms. Any renewal would also
be subject to the successful negotiation of leases for the
continuing Mall Stores, on terms acceptable to Rogers.
9.2.3. If, by April 1, 2006, the parties have not entered into a
binding agreement for the renewal of this Agreement this
Agreement shall terminate on December 31, 2006. Upon termination,
Rogers shall repurchase from RS all Equipment supplied by Rogers
to the RS Mall Stores, within the six month period prior to
termination, at then current prices at which Rogers offers the
Equipment to its Independent Dealers. Rogers shall be entitled to
offer employment to all persons employed by RS at the Mall
Stores, except for those individuals whom RS intends to transfer
to an RS Corporate Store or other RS location (such transferees
not to exceed an aggregate of fifteen percent (15%) of RS' then
current Mall Store employees) and RS has so advised Rogers in
writing. Notwithstanding such termination, provided that:
9.2.3.1. RS has been at all times during the term in material
compliance with this Agreement;
9.2.3.2. RS does not, at any time prior to or during the Royalty
Period (as defined below), enter into an agreement with
any other provider of a Wireless Communications System
providing for the development or operation of retail
stores in Shopping Malls or of a Store-in-Store
Arrangement, for
the purpose of offering the services of any other Wireless
Communications System;
9.2.3.3. RS does not, at any time prior to or during the Royalty
Period, breach its obligations pursuant to section 16.2
hereof (which shall survive the termination of this
Agreement solely for the purpose of this section 9.2.3); and
9.2.3.4. at all times during the Royalty Period, RS makes
available for purchase by Rogers, for resale through the
Mall Stores, all RS Products which RS offers to the RS
Dealer Stores from time to time. The cost to Rogers of the
RS Products shall be not more than the cost to the RS Dealer
Stores for such products, and may be lower having regard to
the volumes being purchased by Rogers;
then RS shall be entitled to receive, from January 1, 2007 until
December 31, 2009 (the "Royalty Period"), ongoing monthly
payments equal to six percent (6%) of the Revenue obtained by
Rogers through the Mall Stores which Rogers continues to operate
during the Royalty Period. For the purposes of this section
9.2.3, "Revenue" shall consist of (i) the proceeds from the sale
of RS Products and Equipment, (but excluding any proceeds other
than the Commissions, in the case of Equipment bundled with a
Wireless Subscription) and (ii) the Commissions which RS would
have been entitled to receive pursuant to Schedules "A-1" and "B"
hereto, had RS continued to operate the Mall Stores during the
Royalty Period, but excludes all applicable taxes.
9.2.4. As the leases for the Mall Stores approach their respective
expiry dates, Rogers may elect, by notice to RS not later than 30
days prior to each such expiry, to allow any such leases to
expire without renewal (the "Expired Mall Stores"). In such event
RS shall be entitled to negotiate, on such terms as may be
acceptable to it, a lease or leases for the Expired Mall Stores,
but solely for the purpose of operating an RS Corporate Store or
RS Dealer Store. However, RS shall make available to Rogers the
benefit of any lease terms more favourable than had been
available to Rogers. Rogers shall, within 15 business days of
receipt of written notice from RS as to any such revised lease
terms, notify RS as to whether such terms are acceptable to
Rogers and, if acceptable to Rogers, Rogers shall
remain as lessee on the renewed lease in respect of any such
Mall Stores and RS shall continue to operate each such
Mall Store, subject to sections 9.2.2 and 9.2.3.
10.TERMINATION
10.1. Termination by Xxxxxx - Xxxxxx may immediately (except as
provided in section 10.1.1) terminate this Agreement by
written notice to RS upon the occurrence of any of the
following events:
10.1.1. RS is in default in the performance of any of its
obligations under this Agreement or breaches any provision
hereof (except as otherwise provided in this section 10.1)
and such default or breach continues, or has not been
corrected to the satisfaction of Rogers, or RS has not
commenced bona fide efforts to correct such default or
breach within thirty (30) days (the "Cure Period") after
receipt of written notice (the "Default Notice") from Rogers
to RS stating the particulars of such default or breach and
stating that Rogers considers such obligation or provision
to be material and, if appropriate in the discretion of
Rogers, specifying the actions required to correct such
default or breach; or if, RS having commenced bona fide
efforts to correct the default or breach within the Cure
Period, the default or breach has not been corrected to the
satisfaction of Rogers within 60 days after the Default
Notice;
10.1.2. RS breaches section 5.3.1.1, section 5.3.2.1 or Article
16 hereof, or enters into an agreement providing for the
payment of commissions or other remuneration, on the sale of
subscriptions or equipment for any other Wireless
Communications System;
10.1.3. RS reallocates or redirects Subscriptions or Customers
among or between Mall Stores and RS Corporate Stores, or
otherwise, in a manner or to an extent that Rogers deems to
be material;
10.1.4. 30% or more of the Mall Stores fail to achieve the
Minimum Performance Standard or Rogers otherwise has a right
to terminate its obligations with respect to 30% of the Mall
Stores pursuant to section 10.5, having regard in either
case to all such events during the term of this Agreement;
10.1.5. bankruptcy or insolvency proceedings are instituted by or
against RS, RS is adjudicated as bankrupt, becomes
insolvent, makes an
assignment for the benefit of its creditors or proposes or makes
any arrangements for the liquidation of its debts or a receiver
or receiver and manager is appointed with respect to all or any
material part of the assets of RS;
10.1.6. all or substantially all of RS' assets are sold or conveyed or
there has been a change in the ultimate control of RS without the
prior written consent of Xxxxxx;
10.1.7. RS agrees to assign, purports to assign or is deemed to have
assigned this Agreement or if an assignment occurs by operation
of law other than in compliance with section 21.4;
10.1.8. RS or any Affiliate of RS defaults in payment or performance
of any of its obligations under, or has breached any provision
of, any other agreement with Xxxxxx or any agreement with an
Affiliate of Xxxxxx relating to the Services (and, if applicable,
the Additional Non-Wireless Services and Additional Wireless
Services);
10.1.9. RS commits or participates in any fraudulent actions in the
course of acting as an agent or dealer of Xxxxxx including,
without limitation, the submission to Xxxxxx of any demonstrably
false or fraudulent claims for commission, bonus payment, refund,
credit, rebate, allowance, discount or other payment by Xxxxxx;
10.1.10. the determination by a court or tribunal of competent
jurisdiction that Article 16, section 5.3.1.1 or section 5.3.2.1
of this Agreement is unenforceable by Xxxxxx in whole or part;
10.1.11. the RS Licence Agreement expires without renewal or is
terminated; or
10.1.12. RS ceases to operate a minimum of 300 RS Corporate Stores.
10.2. Termination by RS - RS may immediately (except as provided in section
10.2.1) terminate this Agreement by written notice to Xxxxxx upon the
occurrence of any of the following events:
10.2.1. Xxxxxx is in default in the performance of any of its
obligations under this Agreement or breaches any provision hereof
(except as otherwise provided in this section 10.2) and such
default or breach continues, or has not been corrected to the
satisfaction of RS, or
Xxxxxx has not commenced bona fide efforts to correct such
default or breach, within thirty (30) days (the "Cure Period") of
the receipt of written notice (the "Default Notice") from RS to
Xxxxxx stating the particulars of such default or breach and
stating that RS considers such obligation or provision to be
material and, if appropriate in the discretion of RS, specifying
the actions required to correct such default or breach; or if
Xxxxxx, having commenced bona fide efforts to correct the default
or breach within the Cure Period, the default or breach has not
been corrected to the satisfaction of RS within 60 days after the
Default Notice;
10.2.2. Xxxxxx fails to pay Commissions when due, and such default
continues or has not been corrected to the satisfaction of RS
after 30 days written notice from RS to Xxxxxx stating the
particulars of such default (but excluding any bona fide dispute
between RS and Xxxxxx as to Commission) or any bona fide claim to
setoff by Xxxxxx;
10.2.3. Xxxxxx fails to pay rent when due pursuant to the terms of the
leases for not less than 15% of the Mall Stores (excluding any
bona fide disputes between Xxxxxx and the landlords);
10.2.4. bankruptcy or insolvency proceedings are instituted by or
against Xxxxxx, Xxxxxx is adjudicated as bankrupt, becomes
insolvent, makes an assignment for the benefit of its creditors
or proposes or makes any arrangements for the liquidation of its
debts or a receiver or receiver and manager is appointed with
respect to all or any material part of the assets of Xxxxxx;
10.2.5. all or substantially all of Xxxxxx assets are sold or conveyed
to a competitor of RS, or a competitor of RS has acquired the
ultimate control of Xxxxxx;
10.2.6. Xxxxxx agrees to assign, purports to assign or is deemed to
have assigned this Agreement or if an assignment occurs by
operation of law other than in compliance with section 21.4;
10.2.7. Xxxxxx commits or participates in any fraudulent or improper
actions in the course of dealing with RS including, without
limitation, the submission to RS of any demonstrably fraudulent
reports for commission, bonus payment, refund, credit, rebate,
allowance, discount or other payment by RS; or
10.2.8. Xxxxxx is no longer authorized to operate the Services.
10.3. Commissions Earned Prior to Termination or Expiry
10.3.1. Subject to the applicable schedules, all Commissions payable
on Subscriptions generated by RS prior to expiry of this
Agreement shall be paid by Xxxxxx within sixty (60) days of the
expiry date. The entitlement of RS to any and all Commissions
(including any bonus commissions provided for from time to time),
other than any commission or Commission payable pursuant to
sections 4.1, 4.2 or 4.4 earned but unpaid prior to the date of
termination, shall immediately cease upon termination of this
Agreement if this Agreement is terminated pursuant to section
10.1 hereof and Xxxxxx shall in no event have any further
liability therefor.
10.3.2. Upon expiry or in the event of termination pursuant to section
10.1, in addition to its other rights, Xxxxxx shall be entitled
to holdback all amounts, including Commissions owing to RS but
unpaid prior to termination (the "Holdback"), to be applied
against any debits to RS' account due to deactivations of
Customers activated by RS within six months after the activation
of such Customers, or due to the failure of RS to comply with
section 10.4. Subject to section 10.4, the Holdback shall be
released by Xxxxxx to RS over the six month period immediately
after termination, on a proportionate basis to the activations
during the six month period immediately prior to termination. If
the Holdback is insufficient to cover the amount of such debits
to RS' account, RS agrees to promptly pay to Xxxxxx the amount of
such deficiency.
10.4. RS Obligations Upon Expiry or Termination - Upon expiry or termination
of this Agreement for any reason, RS shall (unless otherwise instructed
by Xxxxxx):
10.4.1. upon receipt of written instructions from Xxxxxx, immediately
deliver all signage, advertising materials, displays and other
material which uses any of the trade marks of Xxxxxx whether
acquired from Xxxxxx or produced by or for RS, as well as all
equipment referred to in section 5.7. Should Xxxxxx instruct RS
that such signage, material or documents are not to be returned
to it, RS shall immediately cause the same to be destroyed at its
cost. Furthermore, RS agrees that it shall not adopt or use any
word, name or xxxx confusingly similar to the trademarks,
tradenames or logos of Xxxxxx;
10.4.2. promptly permit Xxxxxx or Xxxxxx representatives to enter the
Mall Stores and, at Xxxxxx option, operate the Mall Stores,
provided that the foregoing shall not derogate in any way from
RS' obligations or any of Xxxxxx other rights or remedies
hereunder;
10.4.3. promptly pay to Xxxxxx all accounts then due and unpaid by RS;
10.4.4. immediately discontinue the operation of the Mall Stores and
any and all use of the Xxxxxx Trademarks, other proprietary
rights licensed under this Agreement, and any other designations
associating RS with Xxxxxx. RS shall cease displaying and/or
using any and all signs, stationery, letterheads, packaging,
forms, manuals, bulletins, instruction sheets, printed matter,
advertising and other physical objects used from time to time in
connection with Xxxxxx or containing or bearing any of the Xxxxxx
Trademarks, promptly execute such documents or take such actions
as may be necessary to abandon RS' use of any Xxxxxx Trademarks,
and shall not thereafter operate or do business under any name or
in any manner that might lead to the inference that it is or was
associated with Xxxxxx or that it is operating a business similar
to a Xxxxxx business;
10.4.5. promptly remove or cooperate in the removal of, at Xxxxxx
request, RS' listing as a Xxxxxx dealer from all telephone
directories and all other trade or business directories (in
respect of the next publication thereof), and to assign to Xxxxxx
or any other party designated by Xxxxxx, all of RS' telephone
numbers and listings in connection with the Mall Stores;
10.4.6. immediately return to Xxxxxx the Operating Procedures, all
other Confidential Information, all other material provided to RS
by Xxxxxx and all information, data and materials pertaining to
the Services (and, if applicable, the Additional Non-Wireless
Services and Additional Wireless Services). Should Xxxxxx not
request the return of any of the foregoing, RS shall immediately
cause the same to be destroyed at its cost; and
10.4.7. upon receipt of written instructions from Xxxxxx, immediately
return to Xxxxxx all Equipment loaned by Xxxxxx to RS, all
unpaid-for inventory and all inventory supplied by Xxxxxx on
consignment.
10.5. Termination of Mall Stores
10.5.1 Xxxxxx hereby represents and warrants that the costs in respect
of each individual Mall Store listed under column 6 of Schedule
"K" under the title "Revised Costs 2002" are substantially
accurate with respect to each Mall Store. Xxxxxx agrees to
provide to RS by January 31 of each year of the term with an
annual operating cost estimate by Mall Store for the then current
year. Xxxxxx agrees that for purposes of this section that such
estimate will be used in determining the Minimum Performance
Standard for that year.
10.5.2 In any calendar year of this Agreement, commencing January 1,
2002, in the event that (i) a particular Mall Store fails to
achieve a percentage increase in the number of Wireless
Subscriptions sold in a calendar year of at least the "Final
Target" percentage (as determined in accordance with paragraph
(d) of Schedule "A-4" for the current year) as compared to the
immediately preceeding calendar year; and (ii) the Minimum
Performance Standard was not achieved, that Mall Store shall be
deemed a store in default (the "Defaulting Store").
10.5.3 In the case of a Defaulting Store, RS shall, within 30 days of
receiving written notice from Xxxxxx, deliver to Xxxxxx a written
remedial action plan. If the Defaulting Store does not achieve
the Minimum Performance Standard in any quarterly period during
the year following the year in which it failed to achieve its
Minimum Performance Standard (the "Review Period"), Xxxxxx shall
be entitled to terminate its obligations with respect to the
Defaulting Store and the provisions of section 10.4 shall apply
with respect to the subject Mall Store. Xxxxxx may elect to close
the Defaulting Store, operate the Defaulting Store itself, or
appoint another dealer or agent to operate the Defaulting Store.
If Xxxxxx elects to close the Defaulting Store, in this event
only, RS and Xxxxxx shall share equally the costs attributable to
the closure and each party shall use its commercially reasonable
best efforts to mitigate such costs; principally employee and
lease costs (excluding leasehold improvement and fixture costs).
If the Defaulting Store achieves the Minimum Performance
Standard, determined on a quarterly basis, as seasonally adjusted
(in accordance with prior years' performance), during the Review
Period, its status as a Defaulting Store shall, for the balance
of the Review Period, be determined by Xxxxxx on a quarterly
basis.
11. INDEMNITY AND INSURANCE
11.1. Indemnification - Each of the parties (the "Indemnifying Party")
agrees to indemnify and hold the other party (the "Indemnified Party")
harmless against any and all liabilities, claims, damages, costs or
expenses (including legal fees and expenses) directly or indirectly
incurred by the Indemnified Party by reason of or arising out of or
relating to any acts, duties and obligations or omissions of the
Indemnifying Party or of any personnel employed by, or agent of the
Indemnifying Party, in breach of the obligations of the Indemnifying
Party or of its duties arising from this Agreement, the Indemnifying
Party shall, at the request of and at the Indemnifying Party's
expense, assume the defence of any demands, claims, actions, suits or
proceedings brought against the Indemnified Party by reason thereof
and pay any and all damages and awards including pre- and
post-judgement interest and costs assessed against or that are payable
by the Indemnified Party as a result of the disposition of any such
demands, claims, actions, suits or proceedings. Notwithstanding the
foregoing, the Indemnified Party may be represented in any such
demands, claims, actions, suits or proceedings by its own counsel at
the expense of the Indemnifying Party. No settlement or compromise
shall be agreed without the concurrence of the Indemnified Party.
11.2. Maintenance of Insurance - Xxxxxx shall maintain, in full force and
effect, a comprehensive general liability insurance policy or policies
with personal injury liability, blanket contractual liability and
products and completed operations liability insurance endorsements
protecting RS, Xxxxxx, its Affiliates and their respective directors,
officers and employees and representatives against loss, liability or
expense due to personal injury, death or property damage or otherwise
arising out of or occurring in connection with the Mall Stores. RS
shall be an additional insured in such policy or policies which shall
be written by a responsible insurance company or companies licensed to
do business in the province in which RS is operating the Mall Stores
with a combined single limit of not less than Five Million
($5,000,000) Dollars for bodily injury or death and for property
damage. Such policy or policies shall provide that they will not be
cancelled or materially altered without at least sixty (60) days prior
written notice to RS. Xxxxxx shall furnish RS with a certificate or
certificates of such insurance, together with evidence that the
premiums therefor have been paid. Maintenance of such insurance and
the performance by Xxxxxx of its obligations under this subsection
shall not relieve Xxxxxx of liability under the indemnity provisions
hereinabove set forth in section 11.1 above.
11.3. Exclusions from Insurance Coverage - Notwithstanding section 11.2,
Xxxxxx shall not be liable for and shall not be responsible to insure
for the following risks (collectively referred to as "RS Risks"):
employee benefits liability, voluntary worker's compensation,
employer's liability, contingent employer's liability, non-owned
automobiles, property damage relating to RS inventory and equipment
(including its point-of-sale system), property damage of any kind
which is valued at less than the deductible threshold in Xxxxxx
insurance policy, and business interruption insurance relating to RS'
operations. RS shall indemnify and save Xxxxxx harmless from any
liability with respect to the RS Risks, in accordance with section
11.1.
12. RECORDS AND REPORTS
12.1. Maintenance of Records - RS shall maintain accurate accounts and
records of all sales transactions pertaining to this Agreement,
including sales of Subscriptions, and such other records as may be
specified by Xxxxxx from time to time, and shall retain the same
during the term of this Agreement and for a period of two (2) years
after the date of termination of this Agreement, provided that RS
shall not be required to retain records for greater than seven (7)
years.
If Xxxxxx requires any information in connection with such accounts
and records, the aforesaid accounts and records shall be made
available by RS during normal business hours for examination by
Xxxxxx.
12.2. Delivery of Reports to Xxxxxx - RS will, as promptly as practicable,
prepare and forward, from time to time, the operating reports
reasonably requested by Xxxxxx relating to the Mall Stores listed on
Schedule "J", prepared in a manner specified by Xxxxxx and such other
reports which the parties deem necessary or desirable. Xxxxxx and RS
will mutually develop the format of these reports.
12.3. Provision of Financial Statements - RS shall provide Xxxxxx, with
respect to the Mall Stores, within ninety (90) days following
completion of each calendar year, with financial statements and such
quarterly financial statements as may be requested by Xxxxxx.
13. TRADEMARKS AND OTHER PROPRIETARY MARKS OF XXXXXX
13.1. Use of "Xxxxxx" Trademarks
13.1.1. Unless otherwise determined by Xxxxxx, each Mall Store shall
be prominently identified as "Xxxxxx AT&T Wireless The
Communications Store Express" and shall be referred to as
such by Xxxxxx and by RS in the conduct of business therein
and in association therewith.
13.1.2. In each Mall Store and in each of the RS Corporate Stores, RS
shall, in association with the promotion, solicitation and
sale of Subscriptions, the sale, service and repair of
Equipment and the servicing of Customers utilize, pursuant to
the terms of a licence from Xxxxxx as hereinafter provided
for, such of the Xxxxxx Trademarks as shall be directed by
Xxxxxx from time to time in the manner directed by Xxxxxx and
in accordance with the terms of this Agreement.
13.1.3. With respect to each of the RS Dealer Stores RS shall
require, that as a condition of their acting as a subagent
of RS with respect to the promotion, solicitation and sale of
Subscriptions and Equipment, the operator of such RS Dealer
Stores shall utilize the Xxxxxx Trademarks directed by Xxxxxx
from time to time in the manner directed by Xxxxxx subject to
and pursuant to the provisions of the licence from Xxxxxx as
hereinafter provided for. RS shall monitor and require
compliance with such provisions by the operator of such RS
Dealer Stores, failing which RS shall terminate their rights
of subagency under this Agreement.
13.2. Terms of Use - RS hereby acknowledges (and shall not at any time,
directly or indirectly contest) the validity of the Xxxxxx
Trademarks. RS further acknowledges the exclusive ownership of the
Xxxxxx Trademarks by Xxxxxx, its successors and assigns and agrees
that as between RS and Xxxxxx, the Xxxxxx Trademarks are and shall
remain the property of Xxxxxx. RS and its subagents shall execute and
deliver such documentation as Xxxxxx may reasonably require to
protect and preserve the rights of Xxxxxx in and to the Xxxxxx
Trademarks and other proprietary marks of Xxxxxx. RS agrees to comply
with the rules regarding the use of the AT&T trademarks as may be
determined by Xxxxxx from time to time. RS shall use and shall cause
its subagents to use such trademark notices indicating that Xxxxxx is
the owner of the Xxxxxx Trademarks and trademark symbols according to
the
specifications and guidelines provided to RS from time to time in
such a manner as to preserve the rights of Xxxxxx in the Xxxxxx
Trademarks and not to depreciate the value of the goodwill
therein. Xxxxxx agrees to indemnify and hold harmless RS from and
against any claims or liabilities arising as a result of the use
hereunder by RS of the Xxxxxx Trademarks or proprietary marks of
Xxxxxx.
13.3. Corporate Name of RS - RS agrees that it shall not use the
trademark "Xxxxxx" or "AT&T" as part of its corporate name.
13.4. Non-Alteration of Affixed Trademarks - RS agrees that it shall not
remove or alter any of the Xxxxxx Trademarks or any other
proprietary marks which are fixed to the Equipment nor affix any
additional trademarks or trade designations to any of the
Equipment which bears any of the Xxxxxx Trademarks.
13.5. Trade Practices of RS - RS agrees that it shall not engage in any
unfair trade practices or make any false or misleading statement
or representation in advertising, printed material or otherwise
with respect to any of the products and services offered from time
to time by Xxxxxx or its Affiliates.
14. TRADEMARKS AND OTHER PROPRIETARY MARKS OF RS
14.1. Terms of Use - Xxxxxx hereby acknowledges, (and shall not at any
time, directly or indirectly contest) the validity of the RS
Trademarks. Xxxxxx further acknowledges the exclusive ownership of
the RS Trademarks by RS and RS Corp, its successors and assigns
and agrees that the RS Trademarks are and shall remain the
property of RS or RS Corp, as the case may be. Xxxxxx shall
execute and deliver such documentation as RS may reasonably
require to protect and preserve the rights of RS and RS Corp in
and to the RS Trademarks and other proprietary marks of RS. Xxxxxx
shall use and shall cause its subagents to use such trademark
notices indicating that RS is the owner or licensee of the RS
Trademarks and trademark symbols according to the specifications
and guidelines provided to Xxxxxx from time to time in such a
manner as to preserve the rights of RS and RS Corp in the RS
Trademarks and not to depreciate the value of the goodwill
therein. RS agrees to indemnify and hold harmless Xxxxxx from and
against any claims or liabilities arising as a result of the use
hereunder by Xxxxxx of the RS Trademarks or proprietary marks of
RS.
14.2. Corporate Name of Xxxxxx - Xxxxxx agrees that it shall not use the
trademark "RadioShack" as part of its corporate name.
14.3. Non-Alteration of Affixed Trademarks - Xxxxxx agrees that it shall
not remove or alter any of the RS Trademarks or any other proprietary
marks which are fixed to the RS Products nor affix any additional
trademarks or trade designations to any of the RS Products which bear
any of the "RS Trademarks".
14.4. Trade Practices of Xxxxxx - Xxxxxx agrees that it shall not engage in
any unfair trade practices or make any false or misleading statement
or representation in advertising, printed material or otherwise with
respect to any of the products and services offered from time to time
by RS.
15. CONFIDENTIALITY
15.1. Confidentiality of Information - Each party (the "Receiving Party")
agrees that any and all information, written or oral, which is
designated by the other party (the "Disclosing Party") as proprietary
or confidential in nature and which is disclosed by it or its agents
to the Receiving Party concerning the business or affairs of the
Disclosing Party and its Affiliates (including this Agreement), shall
be treated as confidential and that such information (the
"Confidential Information") shall not be disclosed or used other than
as provided in this Agreement during the term of this Agreement or at
any time thereafter, directly or indirectly to any other person or
entity without the express prior written consent of the Disclosing
Party. This provision is in addition to any other covenant or
agreement previously given by the Receiving Party to the Disclosing
Party with respect to the treatment of confidential information.
Nothing in this section shall preclude the Receiving Party from
disclosing or using Confidential Information if the Receiving Party
can demonstrate that:
15.1.1. the Confidential Information was generally known to the
public or in the public domain at the time of such disclosure
or use, without breach of this or any other agreement; or
15.1.2. disclosure of the Confidential Information is required to be
made by the Receiving Party (or any affiliated entity) by any
law, regulation, governmental body or authority having
jurisdiction over the Receiving Party (or any affiliated
entity) or by court order.
The parties acknowledge and agree that the obligations under this
section are to remain in effect for a period of five years after
expiry or termination of this Agreement.
15.2. Relief for Breach of Confidentiality - The Receiving Party
acknowledges that a breach or threatened breach by the Receiving Party
of the provisions of this Article 15 will result in the Disclosing
Party and its shareholders suffering irreparable harm which cannot be
calculated or fully or adequately compensated by recovery of damages
alone. Accordingly, the Receiving Party agrees that the Disclosing
Party shall be entitled to interim and permanent injunctive relief,
specific performance and other equitable remedies, in addition to any
other relief to which the Disclosing Party may become entitled.
16. EXCLUSIVITY
16.1. Exclusivity in Mall Stores - In consideration of Xxxxxx covenants in
this Agreement, RS covenants and agrees that it will not, through the
Mall Stores, during the term of this Agreement (and any extension or
renewal thereof), directly or indirectly, in any manner promote, act
as agent or dealer for, solicit subscriptions for, accept compensation
from, or offer the products or services of any other Wireless
Communications System or service provider or any products or services
which are competitive with or substantially similar to the products or
services offered by Xxxxxx or its Affiliates from time to time.
16.2. Exclusivity in RS Corporate Stores - In further consideration of
Xxxxxx covenants in this Agreement, RS covenants and agrees that it
will not, whether through RS Corporate Stores or otherwise, during the
term of this Agreement (and any extension or renewal thereof),
promote, act as agent for, solicit subscriptions for, accept
compensation from, or offer the products or services of any other
provider of a Wireless Communications System other than new wireless
communications services which are based on new technologies which are
not naturally synergistic extensions or evolutions of the Services
("New Services"), and that Xxxxxx is not then authorized or permitted
by the appropriate regulatory authority to provide or which Xxxxxx
elects not to provide within twelve (12) months of such "New Services"
being fully commercially available in Canada, subject to section
16.4.1 with respect to the Non-Exclusive RS Corporate Stores
16.3. Additional Services in RS Corporate Stores - RS shall have the sole
discretion to determine which Additional Non-Wireless Services and
Additional Wireless Services will be offered, if at all, in any RS
Corporate
Store. In the event RS determines to offer any Additional Non-Wireless
Services or Additional Wireless Services (or, in the case of
Additional Non-Wireless Services, the comparable services offered by a
competitor of Xxxxxx or its Affiliates) in any RS Corporate Store,
Xxxxxx and its Affiliates shall be treated as a preferred supplier of
such services (if Xxxxxx and its Affiliates are offering such services
on competitive terms) provided that RS shall further determine, in its
sole discretion, whether any such additional service will be offered
on an exclusive basis; if exclusivity is granted such additional
service by RS, RS shall then treat such additional service as being
incorporated into the substantive provisions of section 16.2 above
until such time as RS determines, acting reasonably, such additional
service is no longer technologically comparable or offered on terms
competitive with the Services offered by other providers.
Notwithstanding the foregoing, before RS makes a final determination
that it will no longer treat the additional service as exclusive, it
will give not less than 90 days notice to Xxxxxx during which period
Xxxxxx may commence efforts to ensure the additional service is
technologically comparable or offered on competitive terms. After such
90 day period, RS at its sole discretion shall make its final
determination.
16.4. Exceptions to Exclusivity - Notwithstanding the foregoing:
16.4.1. RS shall be under no exclusivity obligation in respect of
those specific RS Corporate Stores identified in Schedules
"H-1" and "H-2" as being in those geographic areas in which
Rogers has not established coverage for the Services (the
"Non-Exclusive Corporate Stores"). As Rogers expands the
Services to include a geographic area in which a Non-Exclusive
RS Corporate Store is located, it shall give notice to RS.
Upon the expiry of 90 days after receipt by RS of such notice,
the applicable RS Corporate Store shall be deemed to be
deleted from Schedule "H-1" or "H-2", as the case may be.
16.4.2. nothing herein shall prevent RS from owning not more than 5%
of the issued shares of a corporation, the shares of which are
listed on a recognized stock exchange or traded in the over
the counter market in Canada; and
16.4.3. section 16.2 shall not be effective with respect to any
Additional Non-Wireless Services and Additional Wireless
Services, until 90 days after RS determines to offer such
services through the RS Corporate Stores (subject to any
previous contractual commitment which RS may have with another
service provider).
16.5. Relief for Breach of Non-Competition - RS acknowledges that a breach
or threatened breach by RS of the provisions of this Article 16 will
result in Rogers and its shareholders suffering irreparable harm
which cannot be calculated or fully or adequately compensated by
recovery of damages alone. Accordingly, RS agrees that Rogers shall
be entitled to interim and permanent injunctive relief, specific
performance and other equitable remedies, in addition to any other
relief to which Rogers may be entitled.
16.6. Restriction on Rogers - Excluding those geographic regions in which
RS is permitted to offer competitive services pursuant to this
Article 16, Rogers shall not develop or promote any new
Store-in-Store Arrangements with any speciality consumer electronics
retailer located in a Shopping Mall in which there is a Mall Store or
an RS Corporate Store, provided that Rogers may continue with all
existing arrangements and natural extensions thereof and may continue
to engage in promotions and marketing efforts with its existing
agents and dealers.
16.7. Annual Certificate/Audit Right
16.7.1. By January 31 of each year, RS' chief financial officer shall
deliver his certificate to Rogers, certifying that RS has
complied with its obligations under this Article 16 during
the previous calendar year. In addition, once in each
calendar year, Rogers shall be entitled to cause to be
carried out an audit of the books and records of the Mall
Stores and the books and records of RS relating to the RS
Corporate Stores which are necessary strictly for the purpose
of verifying the compliance of RS with this Agreement. Rogers
shall be entitled to reasonable access during regular
business hours to the books and records of the Mall Stores
for the purpose of the audit. The cost of the audit shall be
borne by Rogers unless the audit establishes that RS is in
breach of its obligations hereunder, in which case the
reasonable cost thereof shall be borne by RS.
16.7.2. RS shall be entitled, once per calendar year, to cause to be
carried out an audit of the applicable books and records of
Rogers which are necessary strictly for the purpose of
verifying Rogers compliance with this Agreement (and in
particular, without limiting the generality of the foregoing,
with respect to Commissions) during such year. RS shall be
entitled to reasonable access to such books and records
during regular business hours for the purpose of the audit.
The cost of the audit shall be borne by RS unless the audit
establishes that Rogers is in breach of its obligations
hereunder, in which case the reasonable cost thereof shall be
borne by Rogers.
16.8. Partial Compensation for Breach - While it is agreed that the breach
by RS of Article 16 will result in Rogers and its shareholders
suffering irreparable harm which cannot be calculated or fully
compensated in damages alone, in addition to all remedies available
to Rogers at law or in equity including the rights set out in section
16.5, if during the term of this Agreement (and any extensions or
renewals thereof) it is established that RS has breached its
exclusivity obligations under this Article 16, RS shall promptly pay
to Rogers, as partial compensation for the damages suffered by
Rogers, all compensation paid to RS, and shall continue to pay during
the term of this Agreement (and any extensions or renewals thereof)
to Rogers all ongoing compensation received by it, in respect of such
breach.
16.9. New RS Distribution - If RS or its Affiliates acquire control over
additional retail distribution assets or businesses which are, or may
be, involved in the offering of wireless communications products and
services ("New RS Distribution"), RS and its Affiliates shall ensure
that Rogers and the Services receive not less than twenty (20%)
percent more retail presence, as measured by floor and wall space
available to offer products and services within each retail location,
in the New RS Distribution than any other wireless service provider
in Canada.
17. NON-SOLICITATION
17.1. Customers of Rogers - RS acknowledges that all Customers are
customers only of Rogers and that the primary purpose of this
Agreement is to further and promote the relationship of Rogers and
its Customers. RS therefore agrees that it shall not, either during
the term of this Agreement or for a period of three (3) years
thereafter, directly or indirectly, in any manner whatsoever,
including without limitation, either individually or in partnership,
jointly or in conjunction with any other person, or as principal,
agent or shareholder, contact or solicit any Customers of Rogers or
its Affiliates or dealers who were activated onto the Services (and,
if applicable, the Additional Non-Wireless Services and Additional
Wireless Services) through the Mall Stores or the RS Corporate Stores
(except, in the case of Customers activated through the RS Corporate
Stores, for general offerings of wireless products and services which
are not specifically targeted at Customers) for the purpose of
selling to those Customers any services which are the same as or
substantially similar to, or competitive with, the services sold at
that time by Rogers or its Affiliates.
17.2. Customer Information - RS acknowledges and agrees that the names,
addresses and personal information of Customers and their cellular
telephone numbers constitute the confidential and proprietary
information of Rogers.
17.3. Permitted Uses of Customer List - Notwithstanding sections 17.1 and
17.2 above, during the term of this Agreement, and after the expiry
of this Agreement, subject to applicable law, RS shall be permitted
to utilize any Customer list containing such Customer's name and
address developed by RS for direct marketing or other promotional
efforts undertaken by RS solely for purposes of offering RS Products
which are not used for or in connection with the Services (and, if
applicable, the Additional Non-Wireless Services and Additional
Wireless Services) or the products and services which are prohibited
pursuant to Article 16.
18. RIGHT OF FIRST OFFER
18.1. Right of First Offer - Provided that RS is not presently in breach of
its obligations hereunder, in the event that Rogers wishes to develop
or open or authorize any "in-line" retail stores or kiosks within a
Shopping Mall in Canada in addition to the Existing Mall Stores
listed in Schedule E, Rogers shall first offer (an "Offer") to RS the
opportunity to operate such additional "in-line" stores or kiosks, on
terms and conditions substantially similar to those applicable to the
Existing Mall Stores. If RS fails to confirm in writing, within 30
days after receiving an Offer, that it is electing to accept the
Offer, Rogers may develop or open or authorize the applicable Mall
Stores without further notice or obligation to RS.
18.2. Exceptions to Right of First Offer - Notwithstanding the foregoing,
RS' rights under section 18.1 shall not apply:
18.2.1. in those geographic regions as set forth in Schedules "H-1"
or "H-2" until the criteria for exclusivity in the RS
Corporate Stores have been satisfied; and
18.2.2. to those locations designated in Schedule "E-1" as being
reserved for Rogers and/or its dealers.
19. EQUIPMENT
19.1. Inventory - Payment for Equipment shall be due in full within 30 days
of shipment to RS at its Barrie warehouse or applicable Mall Store,
as the case
may be, except that payments for Equipment that is shipped between
September and December, inclusive, of each calendar year shall be
within 90 days of shipment.
19.2. Core Equipment and Accessories - Rogers may establish and amend from
time to time a list of "core" wireless communications Equipment and
accessories which shall be offered by RS in the Mall Stores. If an
item is removed from the "core" list by Rogers, Rogers will, at its
option, repurchase from RS the subject unsold items in the Mall
Stores at the original price paid by RS or, develop with RS a
marketing initiative to sell off these items, which would include a
reduction in Xxxxxx xxxx-up on these items.
19.3. Price Protection for RS - Rogers shall make available to RS the
benefit of any price protection made available to Rogers by Equipment
manufacturers or which is made generally available by Rogers to its
Independent Dealers.
19.4. Price Protection for Rogers - During the Royalty Period, RS shall
make available to Rogers the benefit of any price protection made
available to RS by manufacturers of RS Products, or which is made
available by RS to the RS Dealer Stores.
20. SET OFF
20.1. Right of Set Off - Each party shall be entitled to set off, against
any amounts owing by it to the other, any amounts owing by one party
to the other or to any Affiliate of Rogers (including without
limitation any payments received by RS on behalf of Rogers from
Customers) and, in the case of amounts owing to an Affiliate of
Rogers, Rogers is authorized to remit such deducted amount to such
Affiliate on behalf of RS. The rights of the parties under this
section are in addition to any other rights which either party may
have upon the failure of the other party to comply with any of its
obligations under this Agreement.
21. GENERAL
21.1. Notice - Any notice, approval, waiver or other document or
communications required or permitted to be given to any party under
this Agreement shall be validly given only if in writing and if
delivered personally (which shall include delivery by courier or
other agent) or if telecopied to that party at the following address:
To Rogers: Xxxxxx Wireless Inc.
Xxx Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Telecopier No.: (000) 000-0000
Attention: Senior Vice-President,
Marketing and Sales
with a copy sent to: 000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Telecopier No.: (000) 000-0000
Attention: Vice-President, Associate General
Counsel
To RS: InterTAN Canada Ltd.
000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxx
X0X 0X0
Telecopier No.: (000) 000-0000
Attention: President, RadioShack Division
with a copy sent to: InterTAN, Inc.
0000 Xxxxxxx #0
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Telecopier No.: (000) 000-0000
Attention: General Counsel
Any such notice delivered or telecopied as aforesaid shall be deemed
to have been given or made on the date on which it was delivered or
telecopied, as the case may be. Any party may at any time give notice
in writing to the other party of any change of address of the party
giving such notice and from and after the giving of such notice the
address therein specified shall be deemed to be the address of such
party for the giving of notice hereunder.
21.2. Entire Agreement - With the exception of a letter agreement dated as
of the date of this Agreement between the parties, this Agreement,
including the schedules hereto, constitutes the entire agreement of
the parties relating to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations, memoranda,
correspondence and discussions, whether written or oral, relative to
the subject matter hereof including the Original Agreement and the
agreement in principle dated April 27, 2001. Except as otherwise
specifically set forth in this Agreement, neither party makes any
representation, warranty or condition express or implied, collateral,
or otherwise to the other.
21.3. Time of Essence - Time shall be of the essence of this Agreement.
21.4. Enurement and Assignment - This Agreement shall enure to the benefit
of and be binding upon the parties hereto and their respective heirs,
executors, legal personal representatives, successors and permitted
assigns. Neither this Agreement, nor any of the rights or obligations
of the parties hereunder may be assigned by either party without the
prior written consent of the other, which may be unreasonably
withheld. Notwithstanding any other provision of this Agreement,
except in the case of an assignment to, or acquisition of control
(directly or indirectly) by a competitor of the non-assigning party,
either party (the "Assignor") may, without consent, assign its rights
and obligations under this Agreement to a person that directly or
indirectly controls, is controlled by or under common control with
the Assignor. A change of control of the Assignor shall be considered
an assignment of this Agreement.
21.5. Further Assurances - Each of the parties hereto shall provide such
further documents or instruments required by the other party as may
reasonably be necessary or desirable to give effect to the purpose of
this Agreement and to carry out its provisions.
21.6. Execution in Counterparts - This Agreement may be executed by the
parties hereto in separate counterparts each of which when so
executed and delivered shall be an original but all such counterparts
shall together constitute one and the same instrument. The parties
acknowledge that facsimile signatures shall be acceptable.
21.7. Waiver - No provision of this Agreement shall be deemed waived by a
course of conduct unless such waiver is in writing signed by all
parties and stating specifically that it was intended to modify this
Agreement.
21.8. Proper Law - This Agreement shall be construed and enforced in
accordance with the laws of the Province of Ontario and, subject to
section 21.14, the parties hereto irrevocably attorn to the
exclusive jurisdiction of the courts of such Province.
21.9. Severability - Subject to section 10.1.10, if any term or provision
of this Agreement shall to any extent be found to be invalid, void
or unenforceable, the remaining terms and provisions shall
nevertheless continue in full force and effect.
21.10. Language - The parties hereto have expressly required that this
Agreement and all deeds, documents or notices relating thereto be
drafted in the English language. Les parties aux presentes ont
expressement exige que le present acte et tous autres contrats,
documents ou avis qui y sont afferents soient rediges en langue
anglaise.
21.11. Survival - The provisions of sections 10.3, and 10.4 and Articles
11, 12, 13, 14, 15, 17 and 20 shall survive the termination or
expiry of this Agreement.
21.12. Independent Review - The parties hereto acknowledge that their
respective legal counsel have reviewed and participated in settling
the terms of this Agreement, and that any rule of construction to
the effect that any ambiguity is to be resolved against the drafting
party shall not be applicable in the interpretation of this
Agreement.
21.13. Force Majeure - If, by reason of Force Majeure, a party hereto (the
"Frustrated Party") is delayed or unable, in whole or in part, to
perform or comply with any obligation or condition of this
Agreement, then the Frustrated Party shall be relieved of liability
and shall suffer no prejudice for failing to perform or comply or
for delaying such performance or compliance during the continuance
and to the extent of the inability so caused from and after the
happening of the event of Force Majeure, provided that the
Frustrated Party gives to the other parties hereto prompt notice of
such inability and reasonably full particulars of the cause thereof.
If notice is not promptly given, then the Frustrated Party shall
only be relieved from performance or compliance from and after the
giving of such notice. The Frustrated Party shall use reasonable
efforts to remedy the situation and remove, so far as possible with
reasonable dispatch, the cause of its delay or inability to perform
or comply, provided, however, that settlement of strikes, lockouts
and other industrial disputes shall be within the discretion of the
Frustrated Party. The Frustrated Party shall give prompt notice of
the commencement and cessation of Force Majeure.
21.14. Dispute Resolution - In the event of a dispute or disagreement
between the parties hereto arising out of or in connection with this
Agreement, the parties shall use their commercially reasonable best
efforts to resolve the dispute, including, as may be appropriate,
the escalation of the dispute to senior management of their
respective organizations. Prior to submission of the dispute to
arbitration in accordance with the terms set forth below or for
resolution by a court of competent jurisdiction, the parties hereto
shall submit the controversy to mediation in a proceeding to be
conducted in Xxxxxxx, Xxxxxxx. If the parties exhaust the mediation
process without a successful resolution of the matter, the parties,
at their option, may submit said dispute or disagreement for
resolution either to a court of competent jurisdiction or to three
arbitrators to be appointed by agreement of the parties. The
arbitration shall be governed by the Arbitrations Act (Ontario). Any
decision or award by said arbitrators shall be non-binding.
21.15. Announcement - Subject to applicable law, no public announcement or
disclosure of the existence of this Agreement shall occur without
the prior consent of both parties.
21.16. Guarantee by Holding Companies
21.16.1. Guarantee by RWCI - RWCI hereby guarantees the performance
by Rogers of its obligations under this Agreement and in
the event of default by Rogers in performing any of its
obligations under, or breach of, this Agreement, RS may at
any time, and from time to time, make demand on RWCI, and
RWCI shall promptly upon such demand, perform such
obligation or correct such breach. RS is not bound to seek
recourse against Rogers before enforcing the obligation of
RWCI hereunder.
21.16.2. Guarantee by InterTAN - InterTAN hereby guarantees the
performance by RS of its obligations under this Agreement
and in the event of default by RS in performing any of its
obligations under, or breach of, this Agreement, Rogers may
at any time, and from time to time, make demand on
InterTAN, and InterTAN shall promptly upon such demand,
perform such obligation or correct such breach. Rogers is
not bound to seek recourse against RS before enforcing the
obligation of InterTAN hereunder.
22. RS' STATUS
22.1. Relationship of Parties - RS acknowledges that it is acting on behalf
of Rogers solely for the purpose of solicitation of Subscriptions and
the servicing of Customers. The relationship of RS to Rogers is
intended to be and shall be that of agent solely for such purposes
and RS shall under no circumstances be considered a partner, joint
venturer or employee of Rogers. RS acknowledges that in acting as
agent for and on behalf of Rogers, the authority hereby granted to RS
does not extend to or include binding Rogers to provide any Service
to a Customer, each Customer being subject to the sole approval of
Rogers.
23. CLAWBACK & CHARGEBACKS TO COMMISION
23.1 Notwithstanding anything in the Agreement or the Schedules, the
parties agree that, except in the instance of fraudulent behaviour on
the part of RS: (1) RS shall not be subject to chargeback, clawback
or other such reduction against Commission where the Customer remains
in good standing (including by way of example, the payment in full of
all monthly bills approximately when due) with Rogers until the end
of the sixth month following the month of activation; (2) Any
chargeback, clawback or other reduction against Commission paid to RS
shall not exceed the Base Commission paid; and (3) RS and Rogers
agree to work together to review chargeback and other business rules
governing the payment of Base Commission to RS in order to have
revised rules completed by January 1, 2002.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the date first above written.
XXXXXX WIRELESS INC.
by: /s/ Xxxxx Xxxxxxx
President and Chief Operating Officer
by: /s/ Xxxx Xxxxxxx
Senior Vice-President, Sales and Marketing
ROGERS WIRELESS COMMUNICATIONS INC.
by: /s/ Xxxxx Xxxxxxx
title:
by: /s/ Xxxxxx X. XxXxxxx
title: Vice President
Associate General Counsel
INTERTAN CANADA LTD.
by: /s/ Xxxxx X. Xxxx
title: Director and President
by: /s/ Xxxxx X. Xxxxxxxxx
title: Vice President
INTERTAN, INC.
by: /s/ Xxxxx X. Xxxx
title: President & CEO
by: /s/ Xxxxx X. Xxxxxxxxx
title: Executive Vice President & CFO
NOTE: Schedules to the Mall Store Operating and Marketing Agreement have been
----
omitted.
Exhibit 21
----------
List of Subsidiaries
Of
InterTAN, Inc.
Jurisdiction of Name Under Which
Subsidiary Name Organization Subsidiary Operates
--------------- ------------ -------------------
InterTAN Canada Ltd. British Columbia (Can.) RadioShack Canada
InterTAN Texas, Inc. Texas (U.S.A.) InterTAN Texas, Inc.
Note: The Company sold its operating subsidiary in Australia, InterTAN Australia
Ltd., in April, 2001. A second, inactive subsidiary in Australia,
Technotron Sales Corp Pty. Ltd. was placed in liquidation in June, 2001.
The Company sold its subsidiary in the United Kingdom, InterTAN U.K. Ltd.,
in January, 1999.
Exhibit 23
InterTAN, Inc.
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-8 (Nos. 33-63090, 33-92286, 33-29055, 333-4344, 333-16105,
333-22011 and 333-32694) of InterTAN, Inc. of our report dated August 13, 2001,
appearing in Item 8 of this Annual Report on Form 10-K for the year ended June
30, 2001. We also consent to the incorporation by reference of our report dated
August 13, 2001 on the Financial Statement Schedule, which is also included in
this Form 00-X.
/x/XxxxxxxxxxxxxxxXxxxxxx XXX
Xxxxxxx, Xxxxxx
September 27, 2001
