EXHIBIT 10.12
PCS DEALER AGREEMENT
This PCS Dealer Agreement ("Agreement"), entered into this 13th day of May,
1998, by and between LOUISIANA UNWIRED, LLC, a limited liability company
organized under the laws of Louisiana with its principal place of business at
Xxx Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000 ("LA UNWIRED"),
and US UNWIRED INC., a corporation organized under the laws of Louisiana with
its principal place of business at Xxx Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxxx
Xxxxxxx, Xxxxxxxxx 00000 ("DEALER").
WHEREAS, LA UNWIRED provides Personal Communications Service ("PCS") in the
Lake Charles, Louisiana Basic Trading Area ("BTA").
WHEREAS, DEALER desires to solicit prospective subscribers for LA UNWIRED'S
PCS and desires to assume certain responsibilities relating to such
solicitation.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained, LA UNWIRED and DEALER hereby agree as follows:
1. Definitions:
The following terms when used herein shall have the following meanings:
1.1 "Facilities" shall include, but not be limited to, the telecommunications
switching equipment, cell site transceiver equipment and other equipment
maintained, expanded, modified or replaced to render PCS to Subscribers in
the Market Area.
1.2 "Market Area" shall include the Lake Charles, Louisiana BTA. LA UNWIRED
expressly reserves the right to unilaterally modify this Agreement in order
to add or delete areas herefrom at any time upon at least 30 days advance
notice.
1.3 "Service" or "PCS" shall mean personal communications service provided by
LA UNWIRED to Subscribers.
1.4 "Subscriber" or "Subscriber Account" shall mean any party referred by
DEALER to LA UNWIRED for PCS pursuant to this Agreement and to whom LA
UNWIRED sells PCS.
2. Appointment of Dealer. LA UNWIRED hereby appoints DEALER to be an authorized
dealer for the Service of LA UNWIRED, and DEALER shall be authorized to perform
the functions of a dealer in accordance with this Agreement
3. Term. The term of this Agreement shall be for a period of one (1) year
commencing on May 13th, 1998, the date of execution by LA UNWIRED (Initial
Term). Unless otherwise terminated pursuant to Section 17 hereof, this Agreement
shall automatically renew for additional one year terms unless notice of non-
renewal is received by either party prior to the expiration date of the then
current one (1) year term.
4. Duties and Responsibilities of DEALER. DEALER agrees that it shall perform
the duties specified in this Agreement including, but not limited to, the
following:
4.1 Standards and Services. During the term of the Agreement, DEALER shall
maintain the following standards and services.
(A) DEALER shall operate a retail outlet and dedicate an appropriate
amount of retail space and live demonstration units for viewing by the
public. DEALER's outlet shall be professional in appearance and image.
(B) DEALER shall use its best efforts at all times to promote and sell
the Service of LA UNWIRED and shall abide by the highest standards of
honesty, integrity, and fair dealing.
4.2. Sale of Equipment. If DEALER sells or leases any type of equipment to
Subscribers for use with the Service, DEALER shall be responsible for all
aspects of such equipment, sale or leasing. LA UNWIRED shall have no
responsibility or liability of any kind whatsoever to DEALER or to any
Subscriber arising from the relationship between such Subscriber and
DEALER, and DEALER agrees to indemnify and hold LA UNWIRED harmless for any
such responsibility or liability, in addition to all expenses, cost and
attorney fees incurred as a result thereof.
5. Non-Exclusivity. The appointment of DEALER by LA UNWIRED hereunder is non-
exclusive with regard to both parties.
6. Commissions. Provided DEALER is not in material default hereunder, during the
term of this Agreement, DEALER shall be entitled to commissions on all orders
procured by DEALER for PCS. The rate of commissions payable to DEALER by LA
UNWIRED and, if applicable, the timing of the payment of such commissions, the
length of Subscriber Service required to earn commissions and all rules relating
to the forfeiture or crediting of commissions shall be as set forth in Exhibit
"A" and supplied to DEALER, as in effect from time to time. LA UNWIRED shall
have the unilateral right to change and modify such commissions and other terms
set forth in Exhibit "A," upon giving thirty (30) days' advance written notice
to DEALER of such change. The only commissions to which DEALER is entitled are
as set forth in Exhibit "A," provided, however, that LA UNWIRED may, in its sole
discretion, establish bonus and incentive programs to supplement such
commissions.
7. Placement and Acceptance of Orders. DEALER agrees to comply with all
reasonable procedures prescribed by LA UNWIRED for the solicitation of
subscribers, informational presentations to subscribers relating to PCS and the
enrollment of subscribers. DEALER acknowledges that the prices, discounts,
specifications, marketing policies and terms and conditions of sale prescribed
by LA UNWIRED and utilized by DEALER may be amended by LA UNWIRED, in its sole
discretion, from time to time, either in whole or in part.
8. Prices, Terms, and Conditions. DEALER shall offer PCS to potential
subscribers at such prices and upon such terms and conditions as shall be set
forth by LA UNWIRED in written descriptions or schedules supplied to DEALER.
Such prices, terms, and conditions are subject to change by LA UNWIRED, in its
sole discretion, upon thirty (30) days' written notice to DEALER, or upon rates
being amended, accepted, or altered
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by any appropriate regulatory agency. DEALER shall not vary, offer to vary or
compromise, or in any way represent that the prices and terms of PCS are other
than as set forth on the schedules supplied to DEALER by LA UNWIRED, as amended
from time to time.
9. Compliance With Laws.
9.1 DEALER shall comply with all applicable FCC rules, tariffs, and federal
and local governmental rules and procedures relating to the sale of PCS, the
sale, lease, installation, warranty service, and repair of PCS equipment,
and the conduct of DEALER's PCS business. All advertising and promotion by
DEALER shall be completely factual and shall conform to the highest ethical
standards of advertising.
9.2 DEALER shall adhere to the highest standards of honesty, integrity, fair
dealing, and ethical conduct in all dealings with Subscribers, LA UNWIRED
and the public, and shall refrain from engaging in any business advertising
practice that may be injurious to the business of LA UNWIRED or other
dealers, agents, contractors, or parties associated with LA UNWIRED and the
goodwill associated therewith.
10. Xxxxxxxx and Collections. If applicable, all billing of LA UNWIRED
Subscribers for PCS and, where appropriate, PCS equipment shall be made directly
by LA UNWIRED and all remittances resulting from such direct Subscriber xxxxxxxx
shall be the property of LA UNWIRED and shall be made payable to LA UNWIRED by
such Subscribers; provided, however, that DEALER may directly xxxx those
Subscribers for the sale of equipment owned by DEALER. To the extent applicable,
LA UNWIRED retains for itself the sole right to xxxx and collect all monies and
to settle all claims against such Subscribers, but shall not be obligated to
proceed to enforce its claims beyond what, in LA UNWIRED's sole judgment, is
commercially desirable. DEALER shall give LA UNWIRED reasonable cooperation and
assistance in collecting accounts from Subscribers, but understands that it is
without authority, and will not make allowances, adjustments or settlements in
connection with such accounts or Subscribers without specific written prior
approval of LA UNWIRED. PCS Subscriber payments or deposits shall be made to LA
UNWIRED or its assignees, and any such payments or deposits received by DEALER
shall be held in trust by DEALER for the benefit of LA UNWIRED and shall be
transmitted promptly to LA UNWIRED.
11. Authority of DEALER. DEALER's authority shall be specifically limited to the
items set forth in this Agreement. DEALER is not authorized to make any
representations or warranties concerning PCS, any PCS plans or rates other than
as expressly provided to DEALER in writing by LA UNWIRED and designated by LA
UNWIRED as being available for presentation to prospective subscribers,
established Subscribers or any other person or entity, nor any representations
or warranties concerning PCS equipment except for those released in writing by
the manufacturers of such equipment. DEALER shall not vary orally or in writing
any standard terms and conditions appearing on any forms utilized by LA UNWIRED
or DEALER relating to PCS.
12. Relationship of LA UNWIRED and DEALER.
12.1 Except for reasonable requirements imposed on DEALER by LA UNWIRED to
ensure the high quality of service to be provided to PCS Subscribers,
DEALER shall have the right to operate DEALER's business as DEALER sees
fit, and shall hire employees and have the right to engage other personnel
as DEALER may deem necessary or desirable, and DEALER shall exercise that
sole and exclusive control and supervision of such persons. In addition,
DEALER is free to engage in such other
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business activities as DEALER may desire to pursue, so long as such other
business activities do not interfere with DEALER's performance hereunder or
violate the provisions hereof.
12.2 DEALER will be responsible for the costs and expenses of conducting
and operating DEALER's business and will comply with all applicable laws.
LA UNWIRED shall not make any deductions, withholdings or contributions
with respect to DEALER on account of social security, insurance,
unemployment compensation or income or other tax, under any federal, state
or local law applicable to the relationship of employer and employee.
12.3 Except for the limited purposes expressly set forth herein, DEALER is
in no way the legal representative or agent of LA UNWIRED for any purpose
whatsoever, and has no right or authority to assume or create any
obligation of any kind, express or implied, on behalf of LA UNWIRED, or to
bind LA UNWIRED in any respect whatsoever.
13. Termination.
13.1 This Agreement shall automatically renew itself from year to year
unless either party gives written notice of non-renewal at least ninety
(90) days prior to expiration of the then current term, as provided in
Section 3 above.
13.2 In addition to the foregoing and except as otherwise provided herein,
this Agreement is subject to termination as follows:
(A) by mutual written consent of DEALER and LA UNWIRED;
(B) if either party fails to perform any of its obligations as
provided in this Agreement, or otherwise acts or fails to act in a
manner that constitutes a material breach hereof, then the non-
breaching party may give the other written notice of the circumstances
constituting such breach and allow thirty (30) days for the other to
cure same, except that this cure period shall not apply where this
Agreement may be terminated immediately as provided herein. If such
notice is provided and no cure has been effected within thirty (30)
days therefrom, nor substantial efforts made to effect such cure
within the thirty (30) day period where more than thirty (30) days are
necessary therefor, the non-breaching party is entitled to terminate
this Agreement at its sole discretion with no liability other than
that incurred prior to such termination. The right of either party to
terminate this Agreement in accordance with the provisions of this
section are in addition to and not in derogation of any other rights
or remedies to which such party may be entitled under this Agreement
or by law;
13.3 For purposes of this Agreement, a material breach by DEALER shall
include, but is not limited to, the following:
(A) filing a voluntary petition in bankruptcy or having an involuntary
petition in bankruptcy filed and not dismissed within sixty (60) days
after such filing;
(B) making a general assignment to or for the benefit of creditors; or
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(C) any illegal or dishonest acts of DEALER, or any material
misrepresentations by DEALER.
13.4 Notwithstanding any of the foregoing, UNWIRED specifically reserves
the right to terminate this Agreement without cause at any time without
advance notice, and in such event need not support such termination with
any reasons whatsoever.
14. Obligations Following Termination. Upon the termination or expiration of
this Agreement, all the rights and obligations of the parties hereunder shall
cease without further liability, effective as of the date of termination,
provided, however, that this Agreement shall still be valid as to any obligation
arising prior to termination or expiration which is stated in this Agreement to,
or by its nature is to, survive such termination or expiration. The parties
shall cooperate with each other to expeditiously fulfill all such obligations.
15. Hold Harmless. Each party hereby agrees to defend, indemnify and hold the
other party, its officers, employees, agents, successors and assigns, harmless
from and against any damages, liabilities, claims, costs, and expenses of any
and every kind and nature, including reasonable attorney fees, incident to or
arising or resulting from the fault or negligent conduct of the indemnifying
party, it's employees, agents, contractors, licensees, invitees, concessionaires
or the conduct of the indemnifying party's business.
16. Warranty and Limitation of Liability.
16.1 LA UNWIRED MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, CONCERNING
ITS EQUIPMENT, FACILITIES OR SERVICES, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.
IT IS INTENDED BY THE PARTIES THAT THIS ARTICLE SHALL APPLY TO DEALER AND
ANY SUBSCRIBERS, AND SHALL BE CONSTRUED IN CONFORMITY WITH THE LAWS OF THE
STATE OF LOUISIANA, NOTWITHSTANDING ITS CONFLICTS OF LAW RULES.
16.2 LA UNWIRED shall have no liability to DEALER or any Subscriber for any
loss, expense or damage arising out of or in connection with (i) mistakes,
omissions, interruptions, errors, or defects in furnishing Services
pursuant to this Agreement, (ii) failures or defects in the Facilities, or
(iii) failure to maintain proper standards or maintenance and operation of
the Facilities or to exercise reasonable supervision with respect to the
operations of the Facilities.
16.3 DEALER acknowledges that the Service provided pursuant to this
Agreement is part of a rapidly changing industry and technology, and as
such LA UNWIRED shall not be liable to DEALER or any Subscribers if changes
in any of the Facilities, operations, equipment, procedures, or Services:
(i) render obsolete any equipment or software provided by DEALER or any
Subscribers in conjunction with the use of the Services; (ii) require
modification or alteration of such equipment or software; or (iii)
otherwise affect the performance of such equipment or software. LA UNWIRED
will use reasonable efforts to give thirty (30) days advance written notice
to DEALER of changes which LA UNWIRED reasonably anticipates will result in
the conditions described in (i) and (iii).
17. Miscellaneous.
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17.1 Notices. All notices, requests, consents, demands, approvals and other
communications hereunder shall be deemed to have been duly given, made or served
if in writing and when delivered personally or mailed by first class mail,
postage prepaid, to the respective parties to this Agreement as follows:
(a) If to LOUISIANA UNWIRED, LLC:
X.X. Xxx 0000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
(b) If to US UNWIRED INC.:
X.X. Xxx 0000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
The designation of the person to be so notified or the address of such
person for the purposes of such notice may be changed from time to time by
similar notice in writing, except that any communication with respect to a
change of address shall be deemed to be given or made when received by the party
to whom such communication was sent. No other method of notice is precluded by
this Section 17.1.
17.2 No Waiver. No failure or delay on the part of either party in exercising
any right, power or privilege hereunder or under Exhibit "A" and no course of
dealing between DEALER and LA UNWIRED shall preclude any further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein expressly provided are cumulative and not exclusive of any
rights or remedies which either party would otherwise have.
17.3 Entire Agreement and Amendments. This Agreement represents the entire
Agreement between the parties hereto with respect to the transactions
contemplated hereunder and, except as expressly provided herein, shall not be
affected by reference to any other documents. Neither this Agreement nor any
provision hereof may be changed, waived, discharged, or terminated orally, but
such may be accomplished only by an instrument in writing signed by the party
against whom endorsement of the change, waiver, discharge or termination is
sought.
17.4 Benefit of Agreement. This Agreement shall be binding upon and inure to the
benefit of DEALER and LA UNWIRED and their successors and assigns. Neither party
is prohibited or restricted from assigning rights or participation hereunder, or
any portion hereof.
17.5 Severability. If any provision of this Agreement shall be held invalid
under any applicable laws, such invalidity shall not affect any other provision
of this Agreement that can be given effect without the invalid provision, and to
this end, the provision held invalid shall be severed from this Agreement. If
the provision held invalid can be replaced with a provision of substantially the
same effect and which is valid, the parties agree to execute a written amendment
incorporating such valid provision herein which amendment shall be deemed to
comply with Section 23.3 hereof.
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17.6 Descriptive Headings. The descriptive heading of the several sections of
this Agreement are inserted for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
17.7 Concerning Law. This Agreement and the rights and obligations of the
parties hereunder and under Exhibit "A" shall be construed in accordance with
and shall be governed by the laws of the State of Louisiana, notwithstanding its
conflicts of law rules.
17.8 Consent to Jurisdiction, Service, and Venue. For the purpose of enforcing
obligations hereunder or otherwise in connection herewith, both parties consent
to the jurisdiction and venue of the 14th Judicial District Court, Calcasieu
Parish, State of Louisiana.
17.9 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original Agreement, but all of which together
shall constitute one and the same instrument.
17.10 Attorney's Fees. In the event an action is commenced by either party to
enforce the terms of this Agreement, the prevailing party in such action shall
be entitled to reimbursement from the other party of its costs, expenses and
reasonable attorneys' fees incurred in relation to such action.
17.11 Assignment. This Agreement shall be freely assignable by either party
without the written consent of the other party.
AGREED TO AND ACCEPTED as of the day and year first above written.
LOUISIANA UNWIRED, LLC
By: /s/ Xxxxxx Xxxxx
_______________________________
Title: Manager/President
US UNWIRED INC.
By: /s/ Xxxxxx X. Xxxxxxx
_______________________________
Title: Secretary
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EXHIBIT A
In accordance with Section 6 of this Agreement, the rate of commission
payable to DEALER by LA UNWIRED is as follows:
The amount of commission will be based on net number of Subscribers placed
on PCS in a one month period starting the first day of the month, ending the
last day of the month. Such amount shall be One Hundred Fifty and No/100 Dollars
($150.00) per PCS number activated by DEALER.
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