Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment to Form S-1 HTML 115K
2: EX-4.6 Investor Rights Agreement 14 77K
3: EX-9.1 Voting Agreement 10 44K
4: EX-10.10 Agreement 9 47K
5: EX-10.11 Amendment to Agreement 31 128K
6: EX-10.12 Agreement and Undertaking 2 14K
7: EX-10.25 Form of Subscription Agreement 45 169K
8: EX-10.26 Market Operation, Spectrum Lease and Sublicense 190 679K
Agreement
9: EX-10.29 Subscription Agreement 21 97K
10: EX-10.30 Master Supply Agreement 105 316K
11: EX-10.31 Side Agreement 17 77K
12: EX-10.39 Vendor Agreement 12± 50K
13: EX-10.40 Subscription Service Addendum to Vendor Agreement 39 100K
14: EX-10.41 Co-Marketing Agreement 22 86K
15: EX-10.42 Purchase and Sale Agreement 48 166K
16: EX-10.45 Bundled Wireless Broadband Services Agreement 32 83K
17: EX-10.46 Subscription Agreement 29 113K
18: EX-10.47 Side Agreement 3 21K
19: EX-10.48 Amended and Restated Limited Liability Company 58 207K
Agreement
20: EX-10.51 Common Stock Purchase Agreement 51 217K
21: EX-10.52 Mobile Wimax Network Collaboration Agreement 36 112K
22: EX-10.53 Stock Purchase Agreement 81 340K
23: EX-10.55 Wireless Broadband System Services Agreement 20 48K
24: EX-10.56 Wireless Broadband System Infrastructure Agreement 146 358K
25: EX-10.57 Wireless Broadband Cpe Supply Agreement 40 94K
26: EX-10.58 Side Letter Agreement 9 51K
27: EX-10.59 Master Royalty and Use Agreement 196 648K
28: EX-10.60 Master Royalty and Use Agreement 103 325K
29: EX-10.61 Membership Interest Purchase Agreement 51 181K
30: EX-10.62 Purchase Agreement 64 201K
31: EX-10.63 Educational Broadband Service Long Term De Facto 84 276K
Transfer Lease Agreement
32: EX-21.1 List of Subsidiaries 2± 13K
Exhibit 10.41
CO-MARKETING AGREEMENT
THIS AGREEMENT ("Agreement") is made this 14th day of September, 2006 (the
"Effective Date") by and between CIRCUIT CITY STORES, INC. ("Circuit City") a
Virginia corporation, with a principal place of business at 9950 Mayland Drive,
Richmond, Virginia 23233, and CLEARWIRE, US, LLC, ("Clearwire") a Nevada limited
liability company. Clearwire and Circuit City are hereinafter referred to as
"Party" or "Parties" as the context may require.
RECITALS
WHEREAS, Clearwire is an Internet services provider;
WHEREAS, Circuit City, either directly or through its Affiliates, operates
retail stores and the Circuit City Website which offer, among other things,
computer, electronics, communication and data products and services to the
general public; and
WHEREAS, Circuit City and Clearwire desire for Circuit City to market, promote,
sell and solicit orders for Clearwire Internet and Internet-based services
through the Stores mutually selected by Circuit City and Clearwire and via the
Circuit City Website, subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
below, the receipt and sufficiency of which is hereby acknowledged, the Parties
hereto agree as follows:
1. DEFINITIONS.
1.1 "Affiliate(s)" means an entity that is directly or indirectly owned or
controlled, is under the common ownership or control with, or is owned
or controlled by the entity with which it is affiliated.
1.2 "Agreement" means this Agreement, and its Attachments and Exhibits,
which are attached hereto and incorporated fully herein.
1.3 "Bounty" means the amount that Clearwire shall pay Circuit City for
each Qualified Subscriber generated by Circuit City's promotional
efforts hereunder as specifically set forth in Exhibit B attached
hereto.
1.4 "Circuit City Website" means www.circuitcity.com.
1.5 "Intellectual Property" shall mean all intellectual property rights
world wide, including copyrights, patents, trademarks, service marks,
trade names, and trade secrets, and rights of personality and
likeness, and all similar rights whether arising by operation of law,
contract, license or otherwise.
1.6 "Marks" means all domain names, trademarks, trade names, service
marks, logos and slogans associated with a Party's or that Party's
third party licensors' products or services in Exhibit C for Clearwire
and Exhibit D for Circuit City.
1.7 "Promotional Materials" means advertising and other promotional
communications, in any media, directed at potential Subscribers, which
describes the Services.
1.8 "Promotional Offer" means a special offer to potential Subscribers in
terms of pricing or free service for a specified period of time.
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
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1.9 "Qualified Subscriber" means a Subscriber who, as a result of Circuit
City's efforts satisfies the Clearwire pre-qualification process,
subscribes to the Services, and makes the initial monthly payment for
such Service and remains paying for [***] days, excluding promotions.
1.10 "Services" means the wireless broadband and related Internet access
and services where Clearwire has contractual arrangements for
provisioning.
1.11 "Stores" means Circuit City's retail "super stores" located within the
United States.
1.12 "Subscriber" shall mean an individual or entity that orders any
offered Service by means of Circuit City under this Agreement.
1.13 "Subscriber Information" means personally identifying information
about Subscribers or potential Subscribers, such as the names,
addresses, usernames, passwords, e-mail addresses of and financial
information related to any Subscribers.
2. OBLIGATIONS OF THE PARTIES.
2.1 The obligations and duties of Clearwire and Circuit City with respect
to the establishment and administration of the various obligations,
respectively, are stated in this Agreement
2.2 Each Party shall assign an account manager to coordinate the
promotional programs with the other Party. If a Party changes the
person assigned as the account manager, such Party shall notify the
other Party in writing of the name and contact information of such new
account manager.
2.3 Subject to the terms and restrictions set forth in this Agreement,
Clearwire hereby grants Circuit City limited rights to market and
promote the Services described in the manner set forth herein. Circuit
City hereby accepts the foregoing and agrees to market and promote the
Services in the manner set forth herein.
2.4 Clearwire shall be solely responsible for providing Circuit City with
information relating to the Services and any Promotional Offers,
including the content of Promotional Materials. Circuit City agrees to
use such information solely in connection with its obligations under
this Agreement.
2.5 Clearwire shall at all times be solely responsible for providing and
maintaining the Services including, but not limited to, billing and
customer service. The Services promoted hereunder shall be comparable
in features, functionality and pricing to the Services offered
directly by Clearwire through its own sales channel or other
retailers. Clearwire, in its sole discretion, reserves the right to
accept, or reject, any potential Subscriber. Additionally, Clearwire
and each Subscriber shall have the right, at any time, to terminate
the Service provided to a Subscriber in accordance with the terms and
conditions of the then current Clearwire Internet Services Agreement
and related policies.
2.6 Circuit City may not make any representations or warranties with
respect to the Services other than those authorized in writing by
Clearwire.
3. TERM AND TERMINATION.
3.1 Term. The term of this Agreement shall run from the Effective Date for
a term of two (2) years (the "Initial Term"), unless otherwise
terminated in accordance with Section 3.2 (Termination) below.
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
[*** Confidential Treatment Requested]
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3.2 Termination.
3.2.1 During the Term, either Party may terminate this Agreement: (a)
immediately upon written notice to the other Party if the other
Party files a petition for bankruptcy or insolvency or has such a
petition filed against it that is not dismissed within ninety
(90) days, makes a general assignment for the benefit of
creditors, becomes generally unable to pay its debts as they
become due, suffers or permits the appointment of a receiver,
trustee, or custodian for its business or any substantial part of
its assets, or becomes subject to any proceeding under any
statute of any governing authority relating to insolvency or the
protection of rights of creditors, and is thereby rendered
substantially unable to perform its material obligations
hereunder; or (b) in the event the other Party is in material
breach, or otherwise is materially in default of any other term,
condition or provision of this Agreement, and such breach or
default continues for thirty (30) days after the non-breaching
Party gives written notice to the breaching Party thereof and
such party fails to cure such breach or default, then, in
addition to all other rights and remedies provided hereunder or
at law or equity, the non-breaching party shall have the right to
terminate this Agreement in whole or in part without any
liability to the breaching party whatsoever, other than monies
not otherwise in dispute and owed to the breaching party for
services rendered during and under the Term of this Agreement.
Upon termination of this Agreement for any reason Circuit City
shall return all Cleanwire devices provided pursuant to this
Agreement within ninety (90) days of the end of the Term.
3.2.2 Notwithstanding anything to the contrary contained herein, after
the first year of the Initial Term either Party shall have the
right to terminate this Agreement at any time without cause, upon
ninety (90) days' prior written notice.
3.2.3 Upon the expiration or termination of this Agreement for any
reason (a) all licenses granted under this Agreement shall
immediately terminate; (b) Circuit City shall cease marketing the
Services and shall cease distributing Promotional Materials; (c)
the Parties shall promptly cease all use of each other's Marks
that were licensed by this Agreement (as opposed to Marks that
were licensed pursuant to another agreement); (d) all payments
that have accrued prior to the termination or expiration shall be
payable in full on the later of (i) ninety (90) days following
the termination or expiration, or (ii) the date on which the
payment would be otherwise due; and (f) all rights herein granted
shall revert to the granting Party. Except for materials kept for
archival purposes, each Party shall promptly return to the other
Party any and all documents or other media embodying any use of
the other Parry's Intellectual Property (including specifically,
but not limited to, any copies of Promotional Materials that have
not been distributed at the time of expiration or termination);
provided, that if this Agreement is terminated because of an
event set forth in 3.2.1 above, the Party responsible for the
event (e.g., the breaching Party) shall bear all costs associated
with the return of the Parties' respective Intellectual Property.
Materials retained for archival purposes may not be used for any
commercial purpose or distributed and shall be treated as
Confidential Information. Clearwire shall have payment
obligations (as set forth herein) in connection with Subscribers
who sign up for the Service prior to or on the date of
termination or expiration of this Agreement.
3.2.4 All obligations of the Parties under this Agreement which, by
their nature, would continue beyond termination, cancellation or
expiration of this Agreement, including by way of illustration
and not limitation those clauses relating to the obligations of
Parties under Sections 1, 2.5, 3, 10, 11, 13 and 15 through 25
shall survive such termination, cancellation or expiration.
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
Page 3
4. INTELLECTUAL PROPERTY RIGHTS.
4.1 Each Party acknowledges that the other Party owns and retains all
rights to Intellectual Property associated with such other Party's
products and services ("Intellectual Property Rights") and agrees that
it will not at any time during or after the Term of this Agreement
assert or claim any interest in or do anything that may adversely
affect the validity of any Intellectual Property Rights of the other
Party (including without limitation any act or assistance to any act
which may infringe or lead to the infringement of any Intellectual
Property Rights of the other Party). Each Party agrees (i) not to
knowingly remove or destroy any proprietary markings of the other
Party contained in product, service, marketing or sales materials
produced pursuant to this Agreement and (ii) to include such
proprietary markings where appropriate when referring to the other
Party's products or services in product, service, marketing or sales
materials produced pursuant to this Agreement
4.2 Clearwire Licensed Marks.
4.2.1 Subject to the terms and conditions specified in this Agreement,
Clearwire hereby grants to Circuit City (and Circuit City's
Affiliates), for the term of this Agreement, a non-exclusive,
non-transferable license to use the Clearwire licensed marks set
forth in EXHIBIT C ("the Clearwire Licensed Marks") exactly as
depicted in the graphic configuration or as subsequently modified
by Clearwire. Clearwire may, in its sole discretion, at any time
add to or delete from the Clearwire Licensed Marks and change the
graphic configuration of the Clearwire Licensed Marks.
4.2.2 Circuit City agrees that the style of use of the Clearwire
Licensed Marks shall be in the form and style conforming to the
trademark usage guidelines as provided to Circuit City in
writing. Circuit City shall not use any of the Clearwire Licensed
Marks as part of its corporate name, trade name, business name or
Internet domain name.
4.2.3 Circuit City shall submit to Clearwire for review and approval,
at least ten (10) business days prior to proposed use, any web
pages or other Internet locations, and all marketing,
advertising, press releases or other Promotional Materials in
which the Clearwire Licensed Marks are used. Clearwire shall
approve or disapprove such materials at least five (5) business
days after its receipt of such materials; Clearwire will not
unreasonably withhold or delay the granting of its approval
thereof. Circuit City shall not publish, distribute or use any
such web pages or other Internet locations, or any such
marketing, advertising, press releases or other Promotional
Materials in which the Clearwire Licensed Marks are used, without
the prior written approval of Clearwire.
4.2.4 Notwithstanding the foregoing, Circuit City may designate at the
time of submission that the requested approval is for
multiple/repetitive, identical uses on the same medium. Circuit
City may request approval for such multiple/repetitive, identical
use through the end of the Initial Term or any Renewal Term of
this Agreement, or six (6) months, whichever is less. Such
multiple/repetitive, identical use shall be in accordance with
this Agreement and shall be subject to revocation by Clearwire
upon written notice to Circuit City.
4.2.5 Circuit City further acknowledges and agrees that all use of the
Clearwire Licensed Marks by Circuit City and all goodwill
developed therefrom shall inure to the benefit of and be on
behalf of Clearwire except for the goodwill associated or derived
from the Circuit City Licensed Marks.
42.6 Circuit City agrees that nothing in this Agreement shall give
Circuit City any right, title or interest in or to the Clearwire
Licensed Marks other than the right to use the Clearwire Licensed
Marks in the manner contemplated by this Agreement, and only for
so long a
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
Page 4
this Agreement is in force or as otherwise permitted under this
Agreement (unless such Clearwire Licensed Marks are licensed
pursuant to a separate agreement).
4.2.7 Infringement.
4.2.7.1 Circuit City agrees to use commercially reasonable
efforts to notify Clearwire promptly of any unauthorized use
of the Clearwire Licensed Marks by others, to the extent
Circuit City has actual notice of such use. Clearwire and
its parent and affiliated companies shall have the sole
right to engage in infringement or unfair competition
proceedings involving the Clearwire Licensed Marks.
4.2.7.2 Any recovery obtained in connection with or as a result
of any infringement action contemplated under this section,
whether by settlement or otherwise, shall be retained by
Clearwire.
4.3 Circuit City Licensed Marks.
4.3.1 Subject to the terms and conditions specified in this Agreement,
Circuit City hereby grants to Clearwire (and Clearwire's
Affiliates), for the terra of this Agreement, a non-exclusive,
non-transferable license to use the Circuit City licensed marks
set forth in EXHIBIT D ("the Circuit City Licensed Marks")
exactly as depicted in the graphic configuration or as
subsequently modified by Circuit City. Circuit City may in its
sole discretion at any time add to or delete from the Circuit
City Licensed Marks and change the graphic configuration of the
Circuit City Licensed Marks.
4.3.2 Clearwire agrees that the style of use of the Circuit City
Licensed Marks shall be in the form and style conforming to the
trademark usage guidelines and brand identity standards, as
provided to Clearwire in writing. Clearwire shall not use any of
the Circuit City Licensed Marks as part of its corporate name,
trade name, business name or Internet domain name.
4.3.3 Clearwire shall submit to Circuit City for review and approval,
at least ten (10) business days prior to proposed use, any web
pages or other Internet locations, and all marketing,
advertising, press releases or other Promotional Materials in
which the Circuit City Licensed Marks are used. Circuit City
shall approve or disapprove such materials at least five (5)
business days after its receipt of such materials; Circuit City
will not unreasonably withhold or delay the granting of its
approval thereof. Clearwire shall not publish, distribute or use
any such web pages or other Internet locations, or any such
marketing, advertising, press releases or other Promotional
Materials in which the Circuit City Licensed Marks are used,
without the prior written approval of Circuit City.
4.3.4 Notwithstanding the foregoing, Clearwire may designate at the
time of submission that the requested approval is for
multiple/repetitive, identical uses on the same medium. Clearwire
may request approval for such multiple/repetitive, identical use
through the end of the Initial Term or any Renewal Term of this
Agreement, or six (6) months, whichever is less. Such
multiple/repetitive, identical use shall be in accordance with
this Agreement and shall be subject to revocation by Circuit City
upon written notice to Clearwire.
4.3.5 Clearwire further acknowledges and agrees that all use of the
Circuit City Licensed Marks by Clearwire and all goodwill
developed therefrom shall inure to the benefit of and be on
behalf of CC West Coast, except for goodwill associated or
derived from the Clearwire Licensed Marks.
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
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4.3.6 Clearwire agrees that nothing in this Agreement shall give
Clearwire any right, title or interest in or to the Circuit City
Licensed Marks other than the right to use the Circuit City
Licensed Marks in the manner contemplated by this Agreement, and
only for so long as this Agreement is in force or as otherwise
permitted under this Agreement (unless such Circuit City Licensed
Marks are licensed pursuant to a separate agreement).
4.3.7 Infringement.
4.3.7.1 Clearwire agrees to use commercially reasonable efforts
to notify Circuit City promptly of any unauthorized use of
the Circuit City Licensed Marks by others, to the extent
Clearwire has actual notice of such use. Circuit City and
its parent and affiliated companies shall have the sole
right to engage in infringement or unfair competition
proceedings involving the Circuit City Licensed Marks.
4.3.7.2 Any recovery obtained in connection with or as a result
of any infringement action contemplated under this section,
whether by settlement or otherwise, shall be retained by
Circuit City.
5. JOINT MARKETING PROGRAMS. Upon execution of this Agreement, the Parties
will develop and implement the Joint Marketing Program set forth on EXHIBIT
A. All aspects of the Joint Marketing Program will be approved by the
Parties in writing as required by this Agreement Clearwire and Circuit City
may work together in good faith to develop additional joint marketing
programs.
6. COMPENSATION. In consideration of the services to be rendered by Circuit
City, Clearwire shall pay Circuit City the Bounty as described in EXHIBIT B
for all Subscribers. Bounties shall be paid to Circuit City within [***]
calendar days following the end of the month in which the Subscriber signed
up for the Services. For each Subscriber that becomes a Qualified
Subscriber, the corresponding Bounty shall become vested in Circuit City
[***] days from Subscriber Activation. For each Subscriber that fails to
become a Qualified Subscriber and for which Clearwire has already made the
corresponding Bounty payments, Clearwire shall be entitled to deduct the
prior Bounty and payments from future payments ("Deduction(s)") as more
fully set forth on EXHIBIT B.
7. REPORTS.
7.1 Clearwire shall provide Circuit City with a monthly written report
setting forth the monthly number of new Subscribers and the monthly
number of Deductions, if any, thirty (30) calendar days following the
end of each calendar month. Notwithstanding the foregoing, no report
shall be issued when there is no underlying activity to report.
7.2 Clearwire and Circuit City shall also use the Reconciliation Document,
attached hereto as EXHIBIT E, for purposes of defining the interface
requirements and expected results for transaction processing of
activity, invoicing and payments between the Parties.
8. PUBLICITY. Neither Party shall issue a press release or similar public
announcement of any kind regarding the Parties' relationship established
hereunder without the prior written approval of the other Party. Other than
expressly set forth herein, neither Party shall use publicly the other
Party's name or refer to the other Party in any way in or with the media,
including, but not limited to, in advertising, without the other Party's
prior written consent as required herein; provided, however, that either
Party may make disclosures or filings required to comply with applicable
laws, including filings with regulatory agencies, such as the United States
Securities and Exchange Commission, or disclosures or filings required to
comply with the rules of a national securities exchange or automated
quotations systems such as the National Association of Securities Dealer's
Automated Quotations. A VIOLATION OF THIS PROVISION SHALL CONSTITUTE A
MATERIAL BREACH OF THIS AGREEMENT.
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
[*** Confidential Treatment Requested]
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9. REPRESENTATIONS AND WARRANTIES.
9.1 Circuit City represents and warrants that (a) it has the right, power
and authority to enter into this Agreement and fully perform its
obligations hereunder; (b) this Agreement does not and will not
conflict with any agreement between it and any other party; (c) it has
all necessary federal, state and local authorizations, to operate and
otherwise perform its obligations under this Agreement and will be in
compliance with all applicable laws and regulations governing such
performance; and (d) Circuit City has the full and exclusive right to
grant or otherwise permit Clearwire to use the Circuit City Marks in
accordance with the terms of this Agreement.
9.2 Clearwire represents and warrants that (a) it has the right, power and
authority to enter into this Agreement and fully perform its
obligations hereunder; (b) this Agreement does not and will not
conflict with any agreement between it and any other party; (c) it has
all necessary federal, state and local authorizations, including
intellectual property rights in and to the Services and to operate and
otherwise perform its obligations under this Agreement and will be in
compliance with all applicable laws and regulations governing such
performance; and (d) Clearwire has the full and exclusive right to
grant or otherwise permit Circuit City to use the Clearwire Marks.
10. LIMITATION OF LIABILITY.
10.1 EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, NEITHER PARTY MAKES,
AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR
WARRANTIES RELATING TO THIS AGREEMENT OR THE PARTIES' RESPECTIVE
SERVICES HEREUNDER, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING
FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
10.2 EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION
11 AND CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 13, BELOW,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, IN WHOLE OR IN PART,
FOR LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF TIME, INCONVENIENCE,
LOSS OF USE, OR ANY OTHER INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR
CONSEQUENTIAL LOSS OR DAMAGE ARISING OUT OF THIS AGREEMENT, OR THE USE
OR PERFORMANCE OF THE SERVICES, IN WHOLE OR IN PART, EVEN IF ADVISED
OF THE POSSIBILITY THEREOF, OR IF REASONABLY FORESEEABLE, WHETHER IN
AN ACTION FOR OR ARISING OUT OF ALLEGED BREACH OF WARRANTY, ALLEGED
BREACH OF CONTRACT, DELAY, NEGLIGENCE, STRICT TORT LIABILITY OR
OTHERWISE. THE LIMITATIONS SET FORTH IN THIS SECTION 10 SHALL NOT
AFFECT EITHER PARTY'S RIGHT TO SEEK INJUNCTIVE RELIEF.
11. INDEMNIFICATION.
11.1 In connection with Clearwire's performance under this Agreement,
Clearwire agrees to indemnify, defend and hold harmless Circuit City,
its Affiliates, and their respective representatives, employees,
directors, officers, and assigns against any losses, liabilities,
lawsuits, penalties, claims or demands (including all costs, expenses,
and reasonable attorneys' fees on account thereof) arising out of or
in connection with (a) any third party claims for actual or alleged
direct infringement of a third party's intellectual property rights
with respect to the hardware leased or provided by Clearwire under
this Agreement where such infringement of the claim arises from the
hardware operating alone and not in combination with any other
hardware or software not licensed, sold or provided by Clearwire, (b)
any third party claim arising out of the sale, resale, use or failure
of the Services, including, but not limited to claims for injuries
(including death) to persons or damage to real or tangible property
that results from Clearwire's negligent or willful
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
Page 7
acts or omissions or those of persons furnished by Clearwire, (c) any
employee or former employee of Clearwire or any of its sublicensees or
subcontractors for which Clearwire's or its sublicensee's or
subcontractor's liability to such employee or former employee would
otherwise be subject to payments under the state Worker's Compensation
or similar laws, (d) Clearwire's actual or alleged breach of any
applicable law, statute, order, decree or regulation in performance of
its obligations, or (e) any third party claim based upon any marketing
material provided by Circuit City which Clearwire materially alters
and uses without Circuit City's prior consent in accordance with
Section 4.3 above. Circuit City agrees to promptly notify Clearwire of
written claims or demands made against Circuit City, which Circuit
City has received written notice of, for which Clearwire is
responsible hereunder. Circuit City further agrees to assist Clearwire
in its defense of such claim, at reasonable cost to Clearwire.
Clearwire shall bear full responsibility for the defense (including
any settlements) of any such claim; provided however, that (i)
Clearwire shall not have any right, without Circuit City's written
consent, to settle any such claim if such settlement arises from or is
part of any criminal action, suit or proceeding or contains a
stipulation to or admission or acknowledgment of, any liability or
wrongdoing (whether in contract, tort or otherwise) on the part of
Circuit City, or provides for less than a full release of Circuit
City. Circuit City shall be entitled to participate in the action with
counsel of its choice at its own expense. Clearwire shall not be
responsible for any claims arising under (a) and/or (e) where Circuit
City was informed of a claim or notice of infringement and failed to
promptly remove or cease in the distribution of the infringing
materials.
11.2 In connection with Circuit City's performance under this Agreement,
Circuit City agrees to indemnify, defend and hold harmless Clearwire,
its Affiliates, and their respective representatives, employees,
directors, officers, and assigns against any losses, liabilities,
lawsuits, penalties, claims or demands (including all costs, expenses,
and reasonable attorneys' fees on account thereof) arising out of or
in connection with (a) any third party claims for actual or alleged
infringement of a third party's intellectual property rights, (b) any
employee or former employee of Circuit City or any of its sublicensees
or subcontractors for which Circuit City's or its sublicensee's or
subcontractor's liability to such employee or former employee would
otherwise be subject to payments under the state Worker's Compensation
or similar laws, (c) Circuit City's actual or alleged breach of any
applicable law, statute, order, decree or regulation in performance of
its obligations, or (d) any third party claim based upon any marketing
material provided by Clearwire which Circuit City materially alters
and uses without Clearwire's prior consent in accordance with Section
4.2 above. Clearwire agrees to promptly notify Circuit City of written
claims or demands made against Clearwire, which Clearwire has received
written notice of, for which Circuit City is responsible hereunder.
Clearwire further agrees to assist Circuit City in its defense of such
claim, at reasonable cost to Circuit City. Circuit City shall bear
full responsibility for the defense (including any settlements) of any
such claim; provided however, that (i) Circuit City shall keep
Clearwire informed of, and consult with Clearwire in connection with
the progress of such litigation or settlement; and (ii) Circuit City
shall not have any right, without Clearwire's written consent, to
settle any such claim if such settlement arises from or is part of any
criminal action, suit or proceeding or contains a stipulation to or
admission or acknowledgment of, any liability or wrongdoing (whether
in contract, tort or otherwise) on the part of Clearwire or any
Clearwire Affiliate, or provides for less than a full release of
Clearwire. Clearwire shall be entitled to participate in the action
with counsel of its choice at its own expense. Circuit City shall not
be responsible for any claims arising under (d) where Clearwire was
informed of a claim or notice of infringement and failed to promptly
remove or cease in the distribution of the infringing materials
12. INSURANCE.
12.1 Clearwire shall maintain, during the term hereof, all insurance
required by law and the insurance listed below. Clearwire agrees that
Clearwire, Clearwire's insurer(s) and anyone claiming by, through,
under or on behalf of Clearwire shall have no claim, right of action
or right of subrogation against Circuit City or Circuit City's
customers based on any loss or liability insurable under the foregoing
insurance, except to the extent Circuit City has an indemnification
obligation under Section 11.2 for
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
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such claim, right of action or subrogation. Certificates furnished by
Clearwire or its subcontractors shall contain a clause stating,
"Circuit City Stores, Inc. shall be notified in writing at least
thirty (30) days prior to cancellation of the policy."
12.2 Clearwire shall maintain, during the Term hereof, all insurance and/or
bonds required by law, including but not limited to:
12.2.1 Workers Compensation insurance as required by the State(s) in
which this Agreement is to be performed.
12.2.2 Comprehensive or Commercial General Liability Insurance, on an
Occurrence Basis, including by not limited to
premises-operations, broad form property damage, contractual
liability, independent contractors, and personal injury with
limits of at least $2,000,000 combined single limit for each
occurrence.
12.2.3 Automobile Liability, Comprehensive Form with limits of at
least $2,000,000 combined single limit for each occurrence.
12.3 Circuit City and its subsidiaries shall be named as an additional
insured to the liability insurance policies required under this
Agreement and this shall be so evidenced upon the Certificate(s) of
Insurance. Clearwire shall maintain insurance, as required by this
Agreement, through insurance carriers which have and maintain an A.M.
Best rating of A-VII or greater. The fulfillment of the insurance
obligations hereunder shall not otherwise relieve Clearwire of any
liability assumed by Clearwire hereunder or in any way modify
Clearwire's obligations to indemnify Circuit City.
12.4 Clearwire shall furnish, within ten (10) days of the Effective Date of
this Agreement, certificates or adequate proof of the foregoing
insurance.
13. CONFIDENTIAL INFORMATION
13.1 "Confidential Information" means any and all business, technical,
customer or third party information (including but not limited to,
trade secrets, marketing plans, financial data, specifications,
drawings, sketches, models, samples, computer programs and
documentation) provided, disclosed or made accessible by one Party
(the "Disclosing Party") to the other (the "Receiving Party") under
this Agreement, that is either identified as or would be reasonably
understood to be confidential and/or proprietary. Confidential
Information also includes (a) any Information that a Party receives,
collects, learns of, or develops in the course of performing its
obligations under this Agreement, including but not limited to
prospective and actual customer's names, addresses, telephone numbers,
email addresses, financial data, including credit card or banking
information, and other customer information; and (b) the terms and
conditions of this Agreement. Confidential Information does not
include information that the Receiving Party can clearly establish by
written evidence: (a) is or becomes known to the Receiving Party from
a third party without an obligation to maintain its confidentiality;
(b) is or becomes generally known to the public through no act or
omission of the Receiving Party; or (c) is independently developed by
the Receiving Party without the use of Confidential Information of the
Disclosing Party. Clearwire will be the owner of any Subscriber
Information generated by Clearwire in connection with a Subscriber's
order for Services and such information will be deemed Clearwire
Confidential Information for purposes of this Agreement. Circuit City
will be the owner of any Confidential Information generated by Circuit
City in connection with a Subscriber's order for Circuit City goods or
services or otherwise in connection with Circuit City's performance of
its duties and obligations hereunder and such information will be
deemed Circuit City's Confidential Information. Any information
obtained by both Parties shall be owned by each Party.
13.2 Confidential Information will be deemed the exclusive property of the
Disclosing Party. The Receiving Party will not: (a) use Confidential
Information of the Disclosing Party for any purpose
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
Page 9
other than the fulfillment of its obligations under this Agreement;
(b) disclose Confidential Information of the Disclosing Party to any
third party, without the prior written consent of the Disclosing
Party; (c) make any copies or modifications of Confidential
Information of the Disclosing Party without the Disclosing Party's
prior written consent, and provided that any authorized copies or
modifications will contain the same confidential or proprietary
notices or legends, if any, which appear on the original; and (d)
reveal, divulge, make known, sell, exchange, lease or in any other way
transfer any Confidential Information to any third party.
13.3 The Receiving Party will: (a) protect and treat all Confidential
Information of the Disclosing Party with the same degree of care as it
uses to protect its own Confidential Information of like importance,
but in no event with less than reasonable care; and (b) only disclose
Confidential Information of the Disclosing Party to its employees
and/or agents who have a "need to know" for purposes of this
Agreement, provided that the Receiving Party will notify and inform
such employees and/or agents of the Receiving Party's obligations
under this Agreement, and the Receiving Party will be responsible for
any breach of this Agreement by its employees and/or agents.
13.4 In the event that the Receiving Party is required to disclose
Confidential Information of the Disclosing Party pursuant to law, the
Receiving Party will notify the Disclosing Party of the required
disclosure with sufficient time for the Disclosing Party to seek
relief, will cooperate with the Disclosing Party in taking appropriate
protective measures, and will make such disclosure in a fashion that
maximizes protection of the Confidential Information from further
disclosure.
13.5 Upon expiration or termination of this Agreement, the Receiving Party
will promptly turn over to the Disclosing Party or, at the Disclosing
Party's direction, destroy all Confidential Information of the
Disclosing Party, in whole or in part, in whatever format, including
any copies.
13.6 Each Party agrees that monetary damages for breach of its obligations
under this Section may not be adequate and that the non-breaching
Party will be entitled to injunctive relief with respect thereto.
14. ASSIGNMENT. Neither party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
other, which shall not be unreasonably withheld; provided, however, that
nothing herein shall prevent either party from assigning its rights and
obligation under this Agreement to an Affiliate, or to an entity that
acquires all or substantially all of the assets of such party through a
merger, consolidation, or sale, provided further that the assigning party
provides notice of such permitted assignment as soon as commercially
reasonable.
15. RELATIONSHIP BETWEEN THE PARTIES. The Parties to this Agreement are
independent Parties and nothing herein shall be construed as creating an
employment relationship between the Parties. Neither Party is an agent,
representative, joint venturer nor partner of the other Party and neither
Party shall have any right, power or authority to enter into any agreement
for or on behalf of, or incur any obligation or liability, or to otherwise
bind, the other Party. The Agreement shall not be interpreted or construed
to create an association, agency, joint venture or partnership between the
Parties or to impose any liability attributable to such a relationship upon
either Party.
16. FORCE MAJEURE. Neither Party shall be in default or otherwise liable for
any delay in or failure of its performance under this Agreement if such
delay or failure arises by any reason beyond its reasonable control,
including any act of God, any acts of the common enemy, the elements,
earthquakes, floods, fires, epidemics, riots, failures or delay in
transportation, electricity or communications, or any act or failure to act
by the other Party or such other Party's employees, agents or contractors;
provided, however, that lack of funds shall not be deemed to be a reason
beyond a Party's reasonable control. The Parties will promptly inform and
consult with each other as to any of the above causes which in their
judgment may or could be the cause of a delay in the performance of this
Agreement.
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
Page 10
17. THIRD PARTY BENEFICIARIES. The provisions of this Agreement are for the
sole benefit of the parties hereto and this Agreement confers no rights,
benefits or claims upon any person or entity not a party hereto. Third
party beneficiaries do not include Clearwire Affiliates.
18. CHOICE OF LAW. The Parties agree that the substantive laws of the State of
New York, without reference to its principles of conflicts of laws, will be
applied to govern, construe and enforce all of the rights and duties of the
Parties arising from or relating in any way to the subject matter of this
Agreement. THE PARTIES KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT TO TRIAL
BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY MATTER ARISING OUT OF, OR
RELATED TO, THIS AGREEMENT.
19. AUDIT RIGHTS. During the term of this Agreement and for a period of two (2)
years following the expiration or termination of this Agreement, both
Parties shall create and maintain sufficient books, records and accounts
related to this Agreement according to generally accepted accounting
practices. Each Party shall have the right, at its own expense, to inspect
or direct an independent certified public accountant to inspect and audit
those books and records of the other Party that are relevant to the
determination of compensation payable hereunder, provided, however, that
such audits will be conducted no more than once in any calendar year, upon
not less than thirty (30) days' notice, during regular business hours, at
mutually agreeable dates and times (not to be unreasonably withheld or
delayed), and provided further that such accountant, if any, executes a
confidentiality agreement reasonably satisfactory to the Party being
audited, to protect the confidentiality of any records so audited. If the
audit discloses a payment discrepancy or error, the Party responsible for
correcting such error shall make any undisputed payment or remittance
within thirty (30) business days of the generation of the audit report. In
the event an audit discloses a payment discrepancy or error of more than
five (5) percent of the correct amount, the Party owing such payment or
remittance shall bear the cost of the audit.
20. NOTICES. All notices, authorizations, and requests required or desired to
be given or made in connection with this Agreement will be in writing,
given by certified or registered mail (return receipt requested), or by
nationally recognized overnight courier (charges prepaid), and addressed as
follows (or to such other address as the Party to receive the notice or
request so designates by notice to the other):
To Clearwire: Clearwire, US LLC.
5808 Lake Washington Blvd.
Suite 300
Kirkland, Wa, 98033
To Circuit City: Circuit City Stores, Inc.
9950 Mayland Drive
Richmond, Virginia 23221
Attn: Internet Services Buyer
With copies to:
Circuit City Stores, Inc.
9950 Mayland Drive
Richmond, Virginia 23221
Attn: Legal Department
Notice shall be deemed effective upon actual delivery.
21. SEVERABILITY. In the event that one or more of the provisions contained
herein shall, for any reason, be held unenforceable in any respect, such
unenforceability shall not affect any other provision of this Agreement,
and this Agreement shall then be construed as if such unenforceable
provision(s) did not exist.
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
Page 11
22. WAIVER. Failure by either Party to enforce any provision of this Agreement
shall not be deemed a waiver of future enforcement of that or any other
provision. The waiver by a Party of any default hereunder shall not be
deemed to be a waiver of subsequent defaults of the same or different kind.
23. INTERPRETATION. This Agreement shall be fairly interpreted in accordance
with its terms and without any construction in favor of or against either
Party. The headings and captions are included for reference purposes only
and do not affect the interpretation of the provisions hereof. The captions
in this Agreement are for convenience of reference only and shall not limit
or otherwise affect any of the terms or provisions hereof. Use of the words
"herein", "hereof", "hereto" and the like in this Agreement refer to this
Agreement as a whole and not to any particular Article, Section or
provision of this Agreement, unless otherwise noted. When the context
requires, the number of all words includes the singular and plural.
24. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original and which together shall constitute one
instrument. This Agreement may be executed by facsimile, and each facsimile
signature shall be deemed to constitute a valid and binding signature of
the executing party.
25. ENTIRE AGREEMENT. This Agreement and its Attachments and Exhibits shall
constitute the entire agreement between the Parties hereto with respect to
the subject matter hereof and all previous agreements relating thereto
shall be null and void unless specifically incorporated herein. This
Agreement may not be amended, modified or rescinded except by a writing
executed by both Parties hereto.
IN WITNESS WHEREOF, the Parties have executed this Agreement, by their
authorized representatives, as of the date written above.
CLEARWIRE, U.S., L.L.C CIRCUIT CITY STORES, INC.
/s/ JAMES RYDER /s/ Phil Schoonover
------------------------------------- ----------------------------------------
Signature Signature
JAMES RYDER Phil Schoonover
Name Name
Sr VP CEO
Title Title
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
Page 12
EXHIBIT A
[***]
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
[*** Confidential Treatment Requested]
Page 13
EXHIBIT B
BOUNTY PAYMENT TERMS
I. Bounty Payments
A. Bounty Payments. Provided Circuit City is not in breach of its
obligations as set forth in this Agreement, Clearwire will pay Circuit
City a one-time Bounty payment of [***] for each Qualified Subscriber
who subscribes to the Services in accordance with the payment
provisions set forth in Section 6.
II. Deductions
Circuit City's monthly compensation may be subject to Deductions by
Clearwire for Bounties already paid to Circuit City for which the
corresponding Subscriber does not become a Qualified Subscriber. If such
amount cannot be deducted, Circuit City shall pay such Deduction amount in
the form of a charge-back or refund within thirty (30) days of the date
that Clearwire notifies Circuit City in writing that such Subscriber failed
to become a Qualified Subscriber.
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
[*** Confidential Treatment Requested]
Page 14
EXHIBIT C
CLEARWIRE MARKS
Instructions for use of the Clearwire Marks can be found at
www.clearpartner.com.
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
[*** Confidential Treatment Requested]
Page 15
EXHIBIT D
CIRCUIT CITY LICENSED MARKS
(CIRCUIT CITY LOGO) (CIRCUIT CITY(R) LOGO)
JUST WHAT I NEEDED(R) SM
(CIRCUIT CITY LOGO) (CIRCUIT CITY(R) LOGO)
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
Page 16
EXHIBIT E
[***]
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
[*** Confidential Treatment Requested]
Page 17
EXHIBIT F
EQUIPMENT AGREEMENT
THIS EQUIPMENT AGREEMENT ("Agreement") is made a part of and is hereby
incorporated into the Co-Marketing Agreement (the "Co-Marketing Agreement")
between Circuit City Stores, Inc. and its affiliates, having its principal place
of business at 9950 Mayland Drive, Richmond, Virginia, USA, 23221("Circuit
City") and Clearwire LLC having its principal place of business at 5808 Lake
Washington Blvd. NE, Suite 300, Kirkland, WA 98033 ("Clearwire"), which became
effective on Sept. 6, 2006. This Agreement is intended to set forth the terms
and conditions under which Clearwire will provide certain equipment (set forth
on Attachment 1, as may be amended from time to time) (the "Equipment") to
Circuit City; Circuit City will then provide the Equipment to Subscribers, which
the Subscribers lease directly from Clearwire. Terms used in this Agreement, but
not defined in this Agreement, have the meaning given in the Co-Marketing
Agreement
With respect to Equipment, the following terms shall supplement the terms of the
Co-Marketing Agreement
1. RESERVATION OF RIGHTS AND TITLE. Title to the Equipment is at all times
reserved to Clearwire. Circuit City agrees to cooperate with Clearwire in
effecting the protections afforded under Sections 9-103(d), 9-109 (a)(4) and 9-
319 of the Uniform Commercial Code as adopted and in effect (or parallel
protections, if the Uniform Commercial Code is not in effect) in each state in
which such a filing is necessary to effect such protections, to the extent
applicable under this Agreement; provided, however, Circuit City makes no
representation or warranty that Clearwire's interests in the Equipment will be
"perfected" as that term is defined in Article 9 of the Uniform Commercial Code,
however Circuit City shall not encumber such equipment nor interfere with such
perfected interest. Circuit City agrees to execute UCC-1 financing statements or
such other form as may be appropriate for the relevant state, provided that
Clearwire shall be responsible for preparation of such financing statements and
for the filing of such financing statements and payment of all applicable filing
and preparation costs. The parties acknowledge that the transaction described in
this Agreement is not a "consignment" within the meaning of the Uniform
Commercial Code. Circuit City shall take delivery of the Equipment from
Clearwire from time to time in accordance with this Agreement. Circuit City may
only distribute Equipment to Subscribers in a Clearwire service area (which
shall be subject to a sale or lease arrangement directly between Clearwire and
the Subscriber). The price for the Equipment shall be determined by Clearwire
and shall be stated in the equipment lease agreement between Clearwire and the
Subscriber (the "Equipment Lease Agreement"). Circuit City may not sell the
Equipment
2. LEASE OF EQUIPMENT. In accordance with the terms of the Co-Marketing
Agreement, Circuit City will register Subscribers for the Services. As part of
the registration process, each Subscriber will enter into an Equipment Lease
Agreement between the Subscriber and Clearwire. The lease price of the Equipment
shall be determined by Clearwire, in its sole discretion. Upon completion of the
registration process, Circuit City will give the leased equipment to the
Subscriber. In order to track Equipment in Circuit City's possession, Circuit
City will assign a stock-keeping unit to the Equipment. The Equipment will show
a price tag of [***] but will net to [***] upon a Subscriber's registration for
the Services; the [***] "price" will not be charged to Subscribers and is caused
by a point of sale systems limitation that prohibits the processing of free
tickets.
3. INVOICES; PAYMENT; ALLOWANCES. All transactions (e.g., purchase orders and
invoices) shall be conducted via Electronic Data Interchange (EDI). At
appropriate intervals, as determined by Circuit City, Circuit City will issue a
purchase order to Clearwire requesting additional Equipment. Upon receipt of a
purchase order, Clearwire will ship the requested Equipment pursuant to the
Circuit City Vendor Supply Chain Agreement dated June 9, 2006 and submit a
corresponding invoice to Circuit City that contains quantity and stock-keeping
unit information. Notwithstanding the terms on any purchase order or any
invoice, Circuit City and Clearwire agree that the Equipment will be provided at
no cost to Circuit City, and at all times thereafter, Clearwire shall continue
to retain title to the Equipment. Notwithstanding any term in any agreement
entered into between Circuit City and Clearwire in the event of a recall of
Equipment Clearwire will use commercially reasonable efforts to satisfy any
purchase
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
[*** Confidential Treatment Requested]
Page 18
order issued by Circuit City, however Circuit City acknowledges and agrees that
complete fulfillment may not be possible and that in such instance Clearwire
shall not be in breach of any agreement for failure to completely satisfy any
purchase due to such circumstances. Circuit City shall ensure that its
merchandise receipt system automatically matches each invoice to the
corresponding Equipment delivery and purchase order issued by Circuit City. Any
discrepancies (e.g., shortages) identified by Circuit City will be reconciled
with Clearwire each month to assure that the parties agree to the correct
inventory of Equipment held by Circuit City. The parties will at this time make
any necessary corrections to their records concerning invoices and quantities.
4. INVENTORY AUDITS. Clearwire may audit Circuit City's distribution centers
pertaining solely to the subject matter of this Agreement no more than 1 times
per calendar quarter, provided that Circuit City shall be given seven (7) days
written notice, and further provided that the audit shall take place at Circuit
City's facilities during normal business hours. Costs of the audit shall be
borne by Clearwire, provided that if a five percent (5%) or greater discrepancy
is found in either amounts owed or Equipment inventory, Circuit City will
reimburse the reasonable and documented costs of such audit in addition to any
moneys owed.
5. TAXES. Because the Equipment is not being sold by Circuit City to the
Subscribers, Circuit City will NOT be responsible for the collection and
remittance of sales, use, or lease taxes to the proper taxing authorities;
Clearwire shall be solely responsible for any such collection and remittance of
sales, use or lease taxes to the proper taxing authorities. Clearwire will be
responsible for paying any personal property taxes relating to the Equipment in
Circuit City's possession; provided that the parties will cooperate to minimize
the amount of such personal property taxes. Furthermore, Clearwire agrees to
indemnify, defend and hold harmless Circuit City and its affiliates, and each of
their officers and directors against any penalty, additional tax or interest
that may be assessed or levied as a result of the failure to timely collect or
pay any tax, or to file any return, form or information statement that may be
required by any governmental agency. Provided, however, that Clearwire shall not
be obligated to indemnify Circuit City in the event that (i) Clearwire was not
timely notified of the claim or potential claim, and/or (ii) such claim arises
out Circuit City's process or procedures relating to the sale or accounting of
Equipment as set forth in Section 2. Circuit City shall not report the Equipment
as property of Circuit City. Each party shall be responsible for reporting its
own income derived from this Agreement and for payment of its own income taxes.
6. SHIPMENTS. Clearwire will ship the Equipment to Circuit City's designated
shipping address (e.g., distribution centers and/or stores) at Clearwire's risk
and expense. Clearwire shall be responsible for making shipping arrangements,
scheduling, tracking, proof of delivery, tracing, and obtaining insurance for
loss or damage while Equipment is in transit, and filing freight claims for loss
and/or damage. If expedited shipment becomes necessary, in the reasonable
opinion of both parties, due to the fault or delay of Clearwire, then Clearwire
shall pay the costs of such expedited shipments to either Circuit City's
distribution centers or via drop ships to Circuit City's stores, as requested by
Circuit City. If expedited shipment becomes necessary, in the reasonable opinion
of both parties, due to the fault or delay of Circuit City, then Clearwire
agrees to ship product, freight collect, to either Circuit City's distribution
centers, or stores via drop ship, as requested by Circuit City; Circuit City
shall then chargeback Clearwire the difference between the standard ground
shipping costs and the expedited shipping costs. The carrier (not Clearwire)
shall invoice Circuit City in this latter freight collect situation. Clearwire
agrees not to include freight charges on any invoices under any circumstances.
7. RETURN OF GOODS. [***] Except as otherwise expressly set forth in this
Agreement, Circuit City agrees to arrange and pay for return shipments.
Notwithstanding the foregoing, Circuit City reserves the right to return, at
Clearwire's expense, any Equipment for which a claim is made that alleges that
the Equipment (1) infringes any alleged patent, design, trade name, trademark,
copyright, right of privacy, or any other tangible or intangible property
rights, or (2) is not manufactured, packaged and labeled in accordance with
industry standards and/or all applicable laws, ordinances, rules and regulations
by governmental departments, bodies and agencies governing and/or restricting
the receipt and sale of Equipment by the undersigned Circuit City, or (3) has
caused injury to person or property. In addition, Clearwire agrees to pay the
cost of return shipments of substantially defective product. Equipment that is
defective (which includes but is not limited to Equipment that is returned
without the box, with an opened box, or with a damaged box) shall be the
responsibility of Clearwire, and may be returned to
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
[*** Confidential Treatment Requested]
Page 19
Clearwire unless otherwise mutually agreed. In all cases, Clearwire agrees to
provide a return authorization ("RA") within 48 hours of request submitted to
Clearwire in accordance with Clearwire's procedures.
8. FURTHER OBLIGATIONS OF CIRCUIT CITY.
a. Circuit City will pay Clearwire [***](the "Agreed Cost') for each unit
of Equipment of the type listed on Attachment 1 that is lost, stolen or damaged
while in Circuit City's possession, less any applicable discounts, allowances or
other valid off set amounts. Notwithstanding the foregoing, Circuit City agrees
to use commercially reasonable efforts to protect and preserve the Equipment
that is in its care, custody or control, wherever located. Circuit City further
agrees to maintain all-risk property insurance in an amount adequate to fully
insure all Equipment in its care, custody or control, wherever located, in an
amount not less than $5 Million, and will name Clearwire.
b. Circuit City agrees to deliver to Subscribers, in accordance with
Clearwire's instructions and activation procedures, Equipment to be used by
Subscribers for their use of the Services. Circuit City may only offer Equipment
that is approved by Clearwire. Circuit City agrees to cooperate with Clearwire
in order to maintain a mutually agreed upon inventory of Equipment that is
sufficient, in, to meet reasonably anticipated demand by Subscribers that
Circuit City enrolls for the Services. From the time of delivery of the
Equipment to Circuit City's location until delivery to a Subscriber in
accordance with this Agreement, Circuit City will store all Equipment delivered
to Circuit City in a safe and secure location, all at Circuit City's expense.
Prior to delivery to a Subscriber in accordance with mutually agreed
authorization procedures, the Equipment may upon mutual agreement be upgraded or
otherwise modified by Clearwire. Upon Clearwire's reasonable demand, Circuit
City will ship all or any portion of the Equipment to Clearwire, at Clearwire's
expense; provided, however, Clearwire shall not pull any Equipment from Circuit
City for the purpose of supplying Equipment to another Clearwire reseller or
representative. Clearwire will have the right, from time to time, to sell,
lease, or otherwise dispose of, all or any potion of the Equipment to a third
party, at prices and on terms established by Clearwire in its sole discretion,
and Clearwire will have no obligation to share any proceeds from such sale with
Circuit City.
9. TERM; TERMINATION. The term of this Agreement shall commence on the Effective
Date, and shall continue until expiration or termination of the Co-Marketing
Agreement, and shall automatically renew on the same terms applicable to the
Co-Marketing Agreement. Termination shall not affect the parties' respective
outstanding obligations.
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
[*** Confidential Treatment Requested]
Page 20
ATTACHMENT-1 TO EQUIPMENT AGREEMENT
(Equipment to be leased to Members)
[Download Table]
DESCRIPTION OF EQUIPMENT AGREED COST
------------------------ -----------
SKU # RSU 2570-FV (LX Model) [***]
Product Description:
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
[*** Confidential Treatment Requested]
Page 21
EXHIBIT G
CLEARWIRE STORES
This Exhibit G sets forth the definition and management of Circuit City Stores
in which Circuit City is authorized and shall Market and sell the Services (the
"Selected Circuit City Stores"). Any Circuit City store located in a Clearwire
coverage area will become a Selected Circuit City Store. Initial launch will
include a minimum of 36 stores. Future Clearwire markets and subsequent new
Selected Circuit City Stores will be identified through a shared "Master Store
List" posted on a secure site accessible by both parties. Clearwire shall give
Circuit City at least sixty (60) days prior written notice of new market
availability and Circuit City shall market and sell the Services in such
markets.
Clearwire/Circuit City Confidential Information
Not to be disclosed without written permission of Clearwire and Circuit City
Page 22
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 1/8/07 | | | | | | | None on these Dates |
| | 9/6/06 | | 18 |
| | 6/9/06 | | 18 |
| List all Filings |
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