T.Mobile.
Stick together
|
|
Dealer Code:_______________
|
|
Date Submitted to BDM:_______________
|
|
|
Sub Delear Candidate/Selling Point Approval Form -Limted Permission to sell Prepay
Products
|
|
Proposed Selling Point Information:(Must be completed for all doors)
|
LIMITED AUTHORIZATION TO PROMOTE AND STELL PREPAY PRODUCTS
SUB-DEALER AGREEMENT
|
|
This limited Authorization to promote and sell Prepay Products Sub-Dealer Agreement("Agreement"),Dated
This ------Day of -----------,200---is between T-Mobile USA,Inc.,a Delaware corporation
("Company"),---------------------[insert Sub Dealer name], a ----------------[Insert
State When Incorporated /formed if applicable] with an address at -------------------------------------[Insert
-SubDealer address]("Sub-Dealer"), and ------------------------------[Insert Wholesaler
name]("Dealer")
|
|
1. RECITALS
|
1.Company provides or is authorized to provide Wireless Service directly to Subscribers
in the Area defined herein
2.Company and Dealer have entered into that certain Prepay Only Agent Agreement,dated
--------------------(the "Dealer Agreement"),pursuant to which Dealer agrees to
promote,Market,and sell Company's prepay Wireless Service and Equipment in the defined
area.
3.Sub-Dealer has agreed tobecome sub-Dealer of Dealer in order to use Company's
experince,Confidential Information,Marks,and goodwill for the limited purpose of
promoting marketing, and selling Company's Wireless Service and prepay Product,including
Prepay Equipment,in the Area to Subscribers under the terms and conditions of this
Agreement.
NOW,THEREFORE,the parties agree as follows:
|
|
2.AGREEMENT
|
1. DEFINITIONS. Certain captalized terms used in this Agreement shall
have the same meanings specified in the Dealer Agreement.
2.RELATIONSHIP OF THE PARTIES.
|
2.1 Dealer Agteement;Sub-Dealer Support and Compensation.
Sub-Dealer agrees to adhere to the terms and conditions of shall be cosidered a
breach by Dealer,entitling Company to pursue all rigths and remedies it may have
under the Dealer Agreement Or under the law the terms and conditions of Company's
Dealer Agrement.Sub-Dealer acknowledges that Sub-Dealer's breach of any provision
of the Dealer Agreement Shall be Considered a breach by Dealer,entiling Company
to pursue all rigths and remedies ift may have under the Dealer Aggrement Or Under
the law. The terms and Conditions set forth in this Aggrement Supplent the tems
and conditions set forth in the Dealer Aggrement.Sub-Dealer acknowledges that this
aggrement does not create an agency joint venture,partnership,employment relationship,franchies
or third party beneficiary rights with company.Sub-Dealer Shall not have the authority
to bind Company in any manner.Sub-Dealer acknowledgs and agrees that it is not a
Party to or a third-party beneficiary of the Dealer agreement and shall have no
rights contractual or otherwise to enforce the terms of the Dealer Agreement. Sub-Dealer
acknowledges that Dealer shall be responsible for providing adequate management
support and resources to Sub-Dealer and that Company has no such responsibility.Sub-Dealer
acknowledges that dealer shall be solely responsible for payment of any compensation
owed to Sub-Dealer or its personnel and for reporting any and all information used
by Company for purposes of compensating Dealer.
|
2.2 Restrictions. Sub-Dealer shall have limited permission
to onely sell Prepay Products(Including Prepay Equipment),purchased by Dealer from
Company,to Subscribes for end use and shall not sell or otherwise provide such prepay
products(or Prepay Equipment) to other distributors,re-sellers,or other non-Subscribers.Sub-Dealer
shall not employ or enter any agreement to use sub-dealers.Sub-Dealer shall not
sell any restricted promotions or plans as defined in the Dealer Agreement.Company
Shall have the right,in its sole discretion,to approve or disapprove of Sub-Dealer's
Individual locations
|
3 SUB-DEALER SALES PRACTICE.
|
3.1 Compliance With Policies. Sub-Dealer shall strictly comply
with all policies governing the sales of Company's Wireless Service,and use of Company's
Marks.
|
3.2 Prohibited Sales Activities.As set forth in the Dealer
Agreement, all sales of Equipment and Wireless Service must be made out of an easily
accessible retail store front location or locations as appropriate. Accordingly,
neither Sub-Dealers, nor any sales representative acting on Sub-Dealer's behalf
shall promote or sell the Equipment or the Wireless Service throught telephone sales
or telemarketing activities, direct mail activities,broadcast faxing activities,
catalog sales activities, internet sales activities, text messaging to consumers,
or any other similar direct sales method. Sub-Dealer acknowledges and agrees to
comply with Company's Policy on Direct Sales Solicitation ( the "Solicitation Policy"),
which is incorportated herein by this reference, as provided to Dealer and as may
be amended from time to time.
|
4. CONFIDENTIAL INFORMATION, SUBSCRIBER INFORMATION, PRIVACY. "Confidential
Inforamtion" includes all information not generally known to the public that relates
to the business, technology, Subscribers, potential Subsribers, finances,budgets,
projections, proposals, operation, plans and practices of Company, including without
limitation the terms of this Agreement, the identities of and all information regarding
Subscribers and potential Subscribers, and all information relating to Company's
business plans and proposals, marketing plans and proposals, technical plans and
proposals, and research and development. Sub-Dealer shall not disclose, nor have
any ownership interest in, Confidential Infomation. Sub-Dealer acknowledges that
Sub-Dealer will have no access to Subscriber Confidential Information as defined
in the Dealer Agreement. In the event that Sub-Dealer receives access to Subsciber
Confidential Information, Sub-Dealer shall comply withT-Mobile's applicable written
privacy and security policies that have been or will be provided to Sub-Dealer,
including but not limited to immediately notifying T-Mobile in writing. Compliance
with T-Mobile policies shall not otherwise relieve Sub-Dealer of its duties to protect
the T-Mobile Information or the other Confidential Information of T-Mobile.
|
5. INTELLECTUAL PROPERTY RIGHTS.
|
5.1 Marks. Sub-Dealer understands and acknowledges that
the Marks, along with all Intellectuall Property Rights associated therewith, are
either: (a) the property of Company ("Company Marks"); or (b) the property of Company's
parent corporation,Deutsche Telekom AG ("DT Marks"). Subject to the terms and conditions
of this Agreement (including but not limited to this Section 5), Company grants
Sub-Dealer a limited, personal, non-exclusive, non-transferable, revocable license
during the term of this Sub-Dealer Agreement to use and reproduce the Company Marks
and the DT Marks, as Company and/or DT may authorize in writing from time to time,
solely in connection with the performace of Sub-Dealer's obligations under this
Sub-Dealer Agreement. Sub-Dealer shall comply with all Marks Rules in its use and
reprodution of the Company Marks and the DTMarks. Sub-Dealer acknowledges and accepts
that Company is itselft a sublicensee of the DT Marks and that the grant of a sublicense
in the DT Marks is subject to any and all terms and conditions imposed by DT, Which
Company is required to impose on its sublicensees, and which terms and conditions
may be revised at any time without notice.
|
5.2 Company Rights; Protection; Termination.Sub-Dealer acknowledges
that it has no rights in or to the Marks except as provided herein and shall not
acquire any rights in the Marks or expectancy to their use as a result of any use
of the Marks by Sub-Dealer, and that all goodwill arisig out of any use of the Company
Marks by, through or under Sub-Dealer shall inure solely to the benefit of Company,
and any use of the DT Marks by, through or under Sub-Dealer shall inure solely to
the benefit of DT.Sub-Dealer will immediately notify Company of any infringement,
misappropriation or violation of any Marks and/or Intellectual Property Rights of
Company, DT and/or Company's licensors that comes to Sub-Dealer's attention. Following
the termination of this Sub-Dealer Agreement, Sub-Dealer shall immediately discontinue
use of any Marks (and any other trademarks or service marks which Company deems
to be confusingly similar to the Company Marks, and any other trademarks or service
marks which Company and/or DT deem to be confusingly similar to the DT Marks) and
shall promptly destroy, or, at Company's and/or DT's option, forward to Company
and/or DT all advertising and promotional materials, displays, order forms, signage,
and all other materials that contain any Marks.
|
6.INDEMNITY; CONSEQUENTIAL DAMAGES.
|
6.1General Indemnity. Sub-Dealer hereby agrees to indemnify,
defend, protect, and hold Company, and its parent, subsidiaries, affiliates, officers,
directors, employees, agents, and insurers, harmless from and against any and all
claims, costs, suits, liabilities, of any negligent act or omission or willfull
misconduct of, or breach of this Agreement, by Sub-Dealer, or its employees,agents,
or independent contractors.
|
6.2Limitation of Liablity.IN NO EVENT SHALL COMPANY BE
LIABLE FOR INCIDENTAL, SPECIAL CONSEQUENTIAL, OR PUNITIVE DAMEGES, INCLUDING, BUT
NOT LIMITED TO LOST REVENUE OR PROFITS, IN CONNECTION WITH THIS AGREEMENT OR THE
CONDUCT OF BUSINESS BETWEEN DEALER AND SUB-DEALER,EVEN IF COMPANY WAS ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS
OR IMPLIED, NOT EXPLICITLY STATED IN THIS AGREEMENT, AND IN PARTICULAR DISCLAMS
ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
|
7. TERMS & TERMINATION.
|
7.1 Unless earlier terminated pursuant to Section 7.2 below,
or under other provisions of the Dealer Agreement, this Agreement shall terminate
contemporaneously with the Dealer Agreement. Notwithstanding the above, in the event
the Dealer Agreement is renewed by extension or under a new agreement, then this
Agreement shall continue on a moth to month basis until it is terminated pursuant
to Section 7.2.
|
7.2Sub-Dealer, acknowledges Company shall have the right, in
its sole discretion, to immediately terminate this Agreement and/or Sub-Dealer's
limited authority to promote or sell the Wireless Service through Prepay Products,
with or without cause upon notice to Dealer. Dealer shall have the right to termiate
this Agreement, with or without cause by providing written notification to Company.
In either event, the Agreement will be deemed terminated in its entirety without
further action on the part of Company and Company shall have the right to immediately
cancel any and all dealer codes that may have been issued to Sub-Dealer..Notices
to Sub-Dealer terminating Sub-Dealer's limited authority to promote and/or sell
the Wireless Service, to the extent required by law, shall be the sole responsibility
of Dealer. In the event of a termination of this Agreement, Sub-Dealer's obligations
under Sections4,6 and 8.5 above shall survive the termination.
|
8. MISCELLANEOUS
|
8.1 Entire Agreement. This Agreement represents the entire,
complete, final and exclusive Agreement and supersede all offers, negotiations and
other agreements between the parties here to with respect to the matters addressed
in this Agreement and except as expressly provided herein, shall not be affected
by reference to any other documents. Sub-Dealer represents and warrants that the
execution and performance of this Agreement does not and will not violate any other
contract or obligation to which Sub-Dealer is a party, including terms relating
to convenants not to compete and confidentiality convenants. Sub-Dealer will not
disclose or use, or induce others to use, any proprietary information or trade secrets
of any other person, association or entity. Sub-Dealer is not relying on any representations
or warranties from Company or Dealer. Except as set forth herein, any amendments
to this Agreement must be in writing and signed by both parties.
|
8.3Remedies Cumulative.The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies that a party
would otherwise have.
|
8.4Non-Solicitation of Company's Employees or Dealers.Sub-Dealer
understands and acknowledges that Company's employees are, by and large, subject
to noncompetition agreements, which prohibit them from working for or otherwise
representing Sub-Dealer for a period of one year after the employee terminates his
or her employment with Company for any reason. As such during the term of the Sub-Dealer
Agreement, Sub-Dealer and anyone acting on its behalf shall not interface with such
noncimpetition agreements, or otherwise recruite or solicit employees, or other
sub-dealers, dealers, agents, or independent contractors of Company's Wireless Service
or Equipment.
|
8.5 Non-Diversion. Sub-Dealer acknowledges it has obtained significant
goodwill from Company through the use of its Confidential Inforamtion and Marks.
During the term of this Agreement and for a period of one (1) year after termination
of this Agreement (whether voluntary or involuntary, with or without cause), Sub-Dealer
shall not directly or indirectly(a) request any Subscriber in the Area whom Sub-Dealer
knows to be a Subscriber of Company, to curtail or deactivate the Wireless Service,
or cancel its relationship with Company, or (b) otherwise solicit, divert or attempt
to divert any such Subscriber from patronizing Company, Company dealers, Company
retail stores or the Wireless Service. During such period, any Subscribers of Company
who contact Sub-Dealer or its Personnel regarding GSM Wireless Service shall be
referred directly to Company.
|
8.6 Assignment.Sub-Dealer shall not assign its rights or delegate
its obligations hereunder without the prior written consent of Dealer and Company.
This prohibition shall extend to a change in the control of Sub-Dealer, Which is
defined to be any change as a result of which any person or entity holds 50% or
more of the ownership interest or assets of Sub-Dealer.
|
8.7SeverablilityIf any provision of this Agreement shall be
held invalid under any applicable laws, such invalidity shall not affect any other
provisions of this Agreement that can be given an effect without the invalid provision.
Further, all terms and conditions of this Agreement shall be deemed enforceable
to the fullest extent permissible under applicable law and, when necessary, the
court is requested to reform any and all terms or conditions to give them such effect.
|
8.8Authority. Each person signing below hereby warrants and
represents that he or she has full authority to execute this Agreement for the party
on whose behalf he or she is signing.
|
8.9No Waiver.No failure by a party to take action on account
of any default or breach of this Agreement by the other party shall constitute a
waiver of any such default or breach, or of the performance required of the other
party under this Agreement.
|
8.10Notices.Unless otherwise stated herein, all notices and
other communications required under the terms of this Agreement,Shall be given in
writing and shall be deemed to have been duly given and effective (i) upon receipt
if delivered in person, or via telecopy, (ii) one day after deposit prepaid with
a national overnight express delivery service, or (iii) three days after deposit
in the United Stats mail. Notices to Sub-Dealer shall be delivered or transmitted
to its address specified on the first page of this Agreement. Any Party may from
time to time change such address by giving the other Party notice of such change
in accordance with this Section.
|
|
The Parties acknowledge they have fully read and understood this Agreement,and have
had the opportunity to confer with legal counsel regarding its terms and conditions.
|
|
EXCUTED as of the day and Year first above written.
|
|
|
|