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
EX-10.40 — Subscription Service Addendum to Vendor Agreement
Exhibit Table of Contents
EXHIBIT 10.40
SUBSCRIPTION SERVICE ADDENDUM
THIS SUBSCRIPTION SERVICE ADDENDUM ("Addendum") TO THE VENDOR AGREEMENT,
dated 9-27-05 ("VA") is made effective as of 9-27-05 2005, by and between BEST
BUY STORES, L.P., a Virginia limited partnership, with offices at 7601 Penn
Avenue South, Richfield, Minnesota 55423 ("Dealer") and CLEARWIRE LLC, a Nevada
limited liability company, with offices at 5808 Lake Washington Blvd. NE, Suite
300, Kirkland, Washington 98033 ("Vendor"). Dealer and Vendor may each be
referred to herein as "Party" or together may be referred to as "Parties", as
appropriate.
RECITALS:
WHEREAS, Vendor is a provider of wireless broadband service and is duly
authorized by all applicable regulatory agencies to provide such services in its
service areas; and
WHEREAS, Dealer is a nationwide specialty retailer of various products,
including without limitation consumer electronics, personal computers,
entertainment software, appliances, and internet connectivity and content
products and services; and
WHEREAS, Vendor and Dealer each wish to enter into this Addendum to the
Agreement to provide for the Marketing and sale of Vendor Services through
Dealer's Sales Channels.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Parties agree as follows.
1. DEFINITIONS:
1.1 ACTIVATION OR ACTIVATED: Means Vendor's initiation of Services in
Equipment that is owned or leased by a Member.
1.2 ACTIVATION COMMISSION: Activation Commission shall have the meaning
described in Exhibit C.
1.3 AFFILIATE: Affiliate of a Party shall mean an entity that directly or
indirectly controls, is controlled by, or is under common control
with such Party.
1.4 ADDENDUM: Addendum shall mean this Subscription Service Addendum,
including the Exhibits attached hereto and any amendment, addendum,
Exhibit or schedule later executed by authorized representatives of the
Parties.
1.5 COMPETITORS: Competitors, with respect to Dealer's competitors, shall mean
any physical or on-line retailer selling Vendor services similar to those
offered through the Sales Channels, including Vendor and its Affiliates.
1.6 CONFIDENTIAL INFORMATION: Confidential Information shall have the meaning
described in Section 13 of the VA.
1.7 CURRENT SERVICES: Current Services shall mean those broadband wireless
services provided by Vendor to its customers that Dealer may Market
through the Sales Channels, with mutually agreed upon Activation
Commissions or other compensation arrangements, as set forth in Exhibit C.
1.8 CUSTOMER DATA: Customer Data shall have the meaning described in Section
10.
1.9 DEALER MARKS: Dealer Marks shall mean trademarks, service marks, trade
names, logos and other brand marks and names used by Dealer for purposes
of identifying itself.
1.10 EQUIPMENT: Means the Vendor-approved communications equipment needed by a
Member to use the Services.
1.11 FUTURE SERVICES: Future Services shall mean services offered by Vendor,
either now or in the future, other than those Current Services identified
in Exhibit C.
1.12 MARKET: Market (and all other forms of the word, such as "Marketing")
shall mean promoting the sale of the Services through efforts within the
Sales Channels, and marketing efforts through advertising and other means,
in an effort to sell the Services.
1.13 MARKS: Marks shall mean collectively the Vendor Marks and the Dealer
Marks.
1.14 MEMBER: Member shall mean those consumers who initiate a transaction and
subscribe as a customer of Vendor for a Current Service through a Sales
Channel in accordance with the Vendor requirements described on Exhibit F.
A Member shall continue to be a Member for so long as the Member continues
to subscribe to the
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Service. Any Current Service reinstated by a former Member within thirty
(30) days after interruption in such Current Service, which is reinstated
either through a Sales Channel or a sales channel internal to Vendor,
shall result in such person continuing to be a Member.
1.15 PUBLISHED RATES: The rates that Vendor publishes in its rate plan
brochures, or other Vendor documentation, as revised from time to time.
1.16 SALES CHANNELS: Sales Channels shall mean Selected Dealer Stores and other
channels through which the Parties agree to Market and sell the Current
Services, including (a) the Selected Dealer Stores, (b) BestBuy.com and
other Dealer Affiliates, and (c) a "1-800" number to be designated by the
Parties for Members and potential Members. The Parties do not intend to
use the channels described in clauses (b) and (c) of this Section 1.16
until they execute a separate agreement with respect to those channels.
1.17 SELECTED DEALER STORES: Selected Dealer Stores are the retail stores of
Dealer listed on Exhibit A.
1.18 SERVICES: Services shall mean the Current Services and Value Added
Enhancements.
1.19 TERM: Term shall have the meaning described in Section 6.1.
1.20 VALUE ADDED ENHANCEMENTS: Value Added Enhancements shall mean those
enhancements to Current Services mutually agreed upon by the Parties and
developed by Vendor.
1.21 VENDOR MARKS: Vendor Marks shall mean any and all trademarks, service
marks, trade names, designs, logos and other brand marks, names and
insignia owned or used by Vendor or its Affiliates in connection with
identifying themselves, their products, their business units or otherwise.
2. CHANNEL CONTROL; CUSTOMER PROTECTION.
2.1 NO INDUCEMENT TO CANCEL. In consideration and recognition of (1) Vendor's
grant to Dealer of the right to use the Vendor Marks on the terms stated in this
Addendum and the great value of the goodwill associated with Dealer's ability to
use the Marks, which rights and value are not available to distributors
generally, (2) the right of Dealer to advertise affiliation with Vendor as an
authorized representative of Vendor, (3) the value of specialized, technical
knowledge of the broadband wireless industry, and of the Equipment and the
Services, imparted by Vendor to Dealer from time to time, and (4) Dealer's
access to Vendor's Confidential Information and trade secret information on the
terms stated in this Addendum, Dealer will not (and Dealer will not permit its
officers, directors, key employees, principals, any Sub-Representative, any
Affiliate of Dealer or any Person owning a controlling interest in Dealer or an
Affiliate of Dealer to), during the Term of this Addendum, and for a period of
two years thereafter, produce, publish, or make available, advertising or
marketing materials specifically targeting Members suggesting or inducing them
to cancel their Service and purchase wireless broadband services from a provider
other than Vendor. Notwithstanding the foregoing, nothing contained herein is
intended to limit or restrict Dealer's general marketing and advertising.
2.2 NO OTHER USE OF VENDOR TECHNOLOGY. During the Term of this Addendum, Dealer
will not, through any Sales Channel (including, but not limited to, Selected
Dealer Stores, as updated from time to time), sell any wireless broadband
services or equipment that include, incorporate or rely upon any Vendor
Equipment, Marks, intellectual property or Services, except for sales of the
Services to Members in accordance with the terms of this Addendum.
3. NO MINIMUM COMMITMENT. Despite anything to the contrary contained in this
Addendum, nothing in this Addendum shall be construed to provide that any
minimum amount of the Current Services, Future Services, Value Added
Enhancements, or Welcome Kits shall be Marketed or sold through the Sales
Channels.
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4. DUTIES AND RESPONSIBILITIES OF PARTIES.
4.1 Marketing, Pricing and Sale of the Current Services.
4.1.1 MARKETING. Dealer shall offer and Market the Services in the Sales
Channels pursuant to the terms of this Addendum, and Vendor shall
provide the Services as set forth in this Addendum. Dealer will use
commercially reasonable efforts to promote and sell the Services
consistent with Dealer's internal sales, marketing and merchandising
plans as may be amended from time to time, and consistent with the
requirements of Section 9.1. Dealer has the right to establish and
customize, at its discretion, Marketing efforts related to the Services,
provided that Dealer complies with its obligations under this Addendum.
4.1.2 MARKET MAKER CAMPAIGN. Dealer will use its commercially reasonable
efforts (consistent with the requirements of Section 9.1) during the
Term of this Addendum to initiate, promote and manage the "Dealer Market
Maker Campaign" more specifically described on the attached Exhibit B
and incorporated herein by this reference. The fees or payments related
to the Dealer Market Maker Campaign are described in Exhibit C attached
hereto.
4.1.3 Reserved.
4.1.4 CUSTOMER SERVICES. Dealer will direct all Members who request
troubleshooting assistance, or assistance with Activation or warranty
issues, or who have problems with the Equipment, to make contact with
Vendor's customer service department either through appropriate links at
www.clearwire.com or by calling Vendor at its toll-free number.
4.1.5 COMPLIANCE WITH POLICIES; ACCESS. Dealer agrees to maintain operations
and follow procedures that are in substantial compliance with the
policies and requirements specified on Exhibit F. Subject to a separate
written agreement and associated processes and guidelines, Dealer will
allow Vendor reasonable access to Selected Dealer Stores.
4.1.6 Reserved.
4.1.7 Reserved.
4.1.8 Reserved.
4.1.9 Reserved.
4.1.10 DEALER CODES. Dealer agrees that it will not allow any other Person to
use its Dealer code(s) or other identifying numbers provided by Vendor.
4.1.11 STANDARD OF CONDUCT. Dealer will conduct any and all activities in
connection with this Addendum in compliance with all applicable laws and
regulations, consistent with the highest standards of fair trade, fair
competition and business ethics. Further, Dealer will represent the
Services fairly and make no false or misleading representations
regarding the Services, and will not engage in any illegal, deceptive,
misleading, unethical or improper acts in performing its duties under
the Agreement.
4.1.12 NOTICE OF EVENTS. Dealer will notify Vendor in writing immediately upon
the occurrence of any of the following events that arise in connection
with or related to Vendor, the Services or the Equipment:
(1) suit or proceeding initiated against Dealer;
(2) written claim or demand; and
(3) any investigation of Dealer by any governmental authority.
4.1.13 USE OF VENDOR MARKS. Dealer will use Vendor's Marks in accordance with
the terms, conditions and guidelines set forth on Exhibit D attached
hereto.
4.1.14 VENDOR PROMOTION. Vendor may (i) promote Dealer's Marketing of the
Current Services and the sale of the Current Services and the Equipment
and Value Added Enhancements, and (ii) support Dealer's branding efforts
via Vendor's agreed upon marketing channels.
4.1.15 PRICING FOR SERVICES. Prices paid by Members for the Services shall not
be greater than the prices paid by subscribers to the Current Services
through any Dealer Competitor, other than prices paid by employees
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of Vendor or its Affiliates or employees of Vendor's marketing or
distribution partners. The parties acknowledge that Service pricing may
vary geographically and that the foregoing parity language is not
intended to reflect or require a national standard. Vendor shall use
commercially reasonable efforts to notify Dealer of any changes in
prices at least sixty (60) days prior to the effective date of the
change; provided however that failure to provide such notice despite
reasonable efforts shall not constitute a breach of this Addendum. In no
event, however, will such notice be less than the notice provided by
Vendor to any Dealer Competitor. Notwithstanding the above, the Parties
agree that Vendor sets the prices for Services in its sole and absolute
discretion. Dealer shall not vary the Published Rates or any terms of
the Services.
4.1.16 SERVICE AVAILABILITY DATABASE. Vendor will provide access to Vendor's
service availability database to assist Dealer with the registration of
Members. The sale of the Current Service will occur through Vendor and
be finalized by Vendor. Vendor shall have the sole right in its
discretion to reject the enrollment of any customer submitted by Dealer
to Vendor for the Current Services. No contract between Vendor and a
customer shall exist until the customer is accepted and approved by
Vendor, and a Current Service is Activated.
4.1.17 INVENTORY. Dealer will make commercially reasonable efforts to maintain
an inventory of Equipment sufficient to meet reasonable, anticipated
demand from Members.
4.1.18 FUTURE SERVICES. The Parties anticipate that Future Services may become
available for Marketing after the date of this Addendum and that such
Future Services, and the compensation related to those Future Services,
may become part of this Addendum. Vendor will notify Dealer of any
changes in such prices at least sixty (60) days prior to the commercial
launch of such Future Service provided however that failure to provide
such notice despite reasonable efforts shall not constitute a breach of
this Addendum. Exhibit C shall be amended from time to time to include
any Future Service that is re-designated as a Current Service under this
Addendum and the agreed upon compensation arrangements related thereto.
4.1.19 BILLING, INSTALLATION, SERVICE AND SUPPORT. Vendor will be responsible
for billing Members for the Services and collecting payment for the
Services from the Members as it determines in its sole discretion.
Dealer will refer billing and service questions regarding the Current
Services to Vendor. Dealer shall have no right or obligation to bill or
collect from a Member any money or charges for Services, unless
otherwise agreed to in writing by the Parties. Vendor shall also be
responsible for providing the installation, service and support of the
Services. Upon Activation of a particular Member in accordance with
Vendor's Activation procedures, such Member will become a customer of
Vendor and Dealer shall have no responsibility with respect to billing
or provision of Service.
4.1.20 VALUE ADDED ENHANCEMENTS. From time-to-time, Vendor and Dealer shall
discuss and may mutually agree upon Value Added Enhancements to be
bundled with the Current Services or offered separately by Dealer
through the Sales Channels.
4.1.21 SERVICE INFORMATION AND TRAINING. Vendor shall provide to Dealer
information that is accurate and updated in a timely manner about
Services' features, functionality, and offers and promotions including
accurate descriptions of the Current Service price plan options and the
benefits of such offers, plans or promotions, for Dealer to use as it
Markets the Services to interested customers. In addition, Vendor shall
provide Dealer with prior written notice at least *** before there are
any changes in Service features, pricing, promotions, offers, service
and support packages or technology and such notice shall describe the
changes, provided however that failure to provide such notice despite
reasonable efforts shall not constitute a breach of this Addendum.
Vendor will also provide Dealer, at no charge, with an adequate number
of copies of any necessary training and product information brochures
and will assist with the training of Dealer personnel on Dealer's
premises, at no charge, as mutually agreed, in order that Dealer's sales
force will be adequately knowledgeable about the Services.
4.1.22 VENDOR GUIDELINES. Vendor will use commercially reasonable efforts to
comply, to the extent permitted under applicable regulatory
requirements, with Dealer's vendor, reporting and information system
requirements, specification and guidelines in accordance with the
provisions of Exhibits F and G.
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5. COMPENSATION
5.1 PAYMENT. Vendor agrees to pay Dealer the Activation Commissions in the
amounts and at the times described in Exhibit C.
5.2 OTHER DISTRIBUTORS. Dealer acknowledges that the compensation paid by
Vendor and other terms and conditions applicable to adding Members to
Vendor's Services may vary among representatives and other distributors of
Vendor's Services in Vendor's sole discretion. Dealer agrees that it will
have no claim against Vendor as a result of any such variation.
5.3 LATE FEES; OFFSETS. If Vendor fails to make any required payment within
thirty days following the due date, except to the extent such payment is
disputed by Vendor in good faith, with written notice of the dispute to
Dealer, it will pay to Dealer a late fee equal to the lesser of *** of the
amount of the delinquent payment (including unpaid late fees), or the
highest amount allowed by law, for each month such payment is not made.
The Parties further agree that, regardless of whether this Addendum is in
effect or not, any past due monies owed by one Parry to the other under
this Addendum, may be offset against other amounts due to the paying
Party.
6. TERM, TERMINATION AND DEFAULT.
6.1 TERM. This Addendum shall commence on the date hereof and shall continue
for *** ("Initial Term"). After the Initial Term, this Addendum shall
automatically renew for up to *** terms ("Renewal Term"), unless
terminated by either Party upon written notice provided at least *** days
prior to the expiration of the Initial Term or any Renewal Term. The
Initial Term and Renewal Term(s) may be collectively referred to herein as
the "Term." Vendor's obligations to make Activation Commission and
Residual Payments (as described in Exhibit C) to Dealer shall survive any
expiration or termination of this Addendum only as provided in Exhibit C.
Notwithstanding the foregoing, termination of the Vendor Agreement between
the parties shall constitute termination of this Addendum.
6.2 EVENT OF DEFAULT. In the event that any of the following (hereinafter
referred to as an "Event of Default") occurs:
6.2.1 either Party, at any time, fails to perform any of their respective
"material obligations" set forth in this Addendum; or
6.2.2 a receiver of any property of either Party shall be appointed in any
action, suit or proceeding by or against such Party;
then upon the occurrence of such Event of Default the non-defaulting Party may
give written notice of such Event of Default to the Defaulting Party who shall
have thirty (30) days to cure such Event of Default. If such breach is not cured
within 30 days of the Defaulting Party's receipt of written notice adequately
describing such breach, then the non-defaulting Party may immediately terminate
this Addendum upon notice but without further obligation and without incurring
any liability for such termination. For purposes of this Section 6.2, and for
purposes of clarification and not of limitation, Dealer's obligation set forth
in Sections 4.1.1 and 4.1.2 shall be considered "material obligations."
7. SURVIVAL. The provisions of Sections 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 18,
Exhibit C, and those other provisions that by their nature are intended to
survive, shall survive any termination or expiration of this Addendum.
8. PROPRIETARY RIGHTS.
8.1 OWNERSHIP. All rights, title and interests in the Vendor Marks and other
intellectual property rights of Vendor are and shall remain the property
of Vendor. All rights, title and interests in the Dealer Marks and other
intellectual property rights of Dealer are and shall remain the property
of Dealer.
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8.2 LICENSE FOR VENDOR MARKS. Vendor grants Dealer a non-exclusive, royalty
free, revocable license to use, copy, affix, reproduce and display, during
the Term of this Addendum, only those Vendor Marks identified in writing
by Vendor to Dealer for use in connection with the performance of Dealer's
obligations under this Addendum; provided, however, that such use is
subject to written approval by Vendor and in compliance with Vendor's
rules and procedures relating to the Vendor Marks as described and
attached as Exhibit D. In the event Vendor's rules and procedures are
changed and Dealer has existing Marketing ads and other such collateral in
use, Vendor will use commercially reasonable efforts to provide Dealer
with ninety (90) days notice of such changes. Vendor will provide Dealer
with an account manager that will serve as Dealer's single point of
contact for all questions regarding the use of Vendor's Marks. In no event
will Dealer be required to obtain written approval for advertising
materials.
8.3 LICENSE FOR DEALER MARKS. Dealer grants Vendor a non-exclusive, royalty
free, revocable license to use, copy, affix, reproduce and display, during
the Term of this Addendum, any and all of the Dealer Marks in connection
with the performance of Vendor's obligations under this Addendum;
provided, however, that such use is in compliance with Dealer's rules and
procedures relating to the Dealer Marks as outlined on Dealer's extranet
site www.extendingtbereach.com.
8.4 CHALLENGES. Dealer will not challenge the title or any rights of Vendor
(or other owners of the Marks) in and to the Marks either during the Term
of this Addendum or thereafter.
8.5 PROTECTION OF MARKS. Dealer agrees to assist Vendor at Vendor's request,
and Vendor agrees to reimburse Dealer for all associated reasonable and
necessary costs incurred by Dealer at Vendor's request in connection with
this Addendum, to protect Vendor's rights to the Marks. Vendor, if it so
desires, may commence or prosecute any claims or suits in its own name or
in the name of Dealer or join Dealer as a party to this Addendum for such
purposes. When known by Dealer, Dealer will promptly notify Vendor in
writing of any infringements or imitations by others of the Marks. Vendor
will have the sole right to determine whether any action will be taken on
account of any such infringements or imitations. Dealer will not institute
any suit or take any action on account of any such infringements or
imitations without first obtaining the written consent of Vendor.
9. MUTUAL OBLIGATIONS.
9.1 STANDARD OF CARE. In connection with the performance by the Parties of their
respective obligations under this Addendum, each Party shall employ a standard
of care, skill, and diligence consistent with the highest professional standards
practiced in the Parties' respective industries. Each Party's personnel shall
adhere to the highest standards of honesty, integrity, fair dealing and ethical
conduct in all dealings under this Addendum or related to the Marketing, sale,
service and support of the Current Services program provided hereunder. Each
Party's personnel, delegates and subcontractors shall be courteous, respectful,
and professional with customers, employees, and suppliers.
9.2 LICENSES AND PERMITS. Each Party shall, at its sole cost and expense, have
the sole responsibility to (i) obtain all applicable licenses, permits and other
authorizations necessary to perform its obligations under this Addendum and (ii)
ensure that all aspects of the Services provided by either Party to Dealer's
customers or to Members under this Addendum, and the obligations of each Party
under this Addendum, are performed in compliance with all applicable laws,
ordinances, rules and regulations.
9.3 RIGHT TO AN AUDIT. Either Party shall, within *** of the written request of
the other Party, provide to the requesting Party an accounting of sales of
Current Services to Members during the Term of this Addendum. Throughout the
Term of this Addendum and for a period of two years following its termination,
each Party shall also have the right to inspect, audit and copy the other
Party's books and records directly relating to the sale of the Current Services
to Members upon thirty (30) days prior written notice at the sole cost of the
party conducting or representing the audit and not more than twice in any 12
month period. The audited Party will use commercially reasonable efforts to
cooperate with the auditing party or their representatives performing such audit
and shall give them full access to all of their books and records directly
related to sale of the Services to Members. In the event that such Audit reveals
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an underpayment greater than 5% the underpaying party agrees to pay for the
reasonable costs of the audit in addition to making appropriate payment to
address the underpayment.
9.4 RECONCILIATION: Dealer and Vendor agree that it is to the best interest of
both Parties to follow a timely and periodic reconciliation process to determine
any compensation disputes and secure resolution. Vendor agrees to respond to
Dealer compensation disputes within 30 days, including the result and Vendor's
reasons. Should Vendor be unable to comply with the 30-day response period, it
will inform Dealer as to the reasons and also a revised date upon which the
results can be expected. This Section 9.4 is not intended to supersede any other
post audit rights currently in existence.
10. CUSTOMER DATA.
10.1 DEFINITION OF "CUSTOMER DATA". ***
10.3 SHARING OF CUSTOMER DATA. Subject to applicable law, each Party agrees to
provide the other with Customer Data obtained from or about Members as may be
reasonably requested from time to time by a Party solely for purposes of
confirming compliance with a Party's obligations described this Addendum.
11. REPRESENTATIONS AND WARRANTIES.
11.1 REPRESENTATIONS AND WARRANTIES OF VENDOR. Vendor represents, warrants and
covenants to Dealer as follows:
11.1.1 Vendor, through itself or its Affiliates, has the authority to enter
into and perform its obligations under this Addendum and the person(s)
signing this Addendum on behalf of it are authorized to execute this
Addendum and bind Vendor.
11.1.2 Vendor, through itself or its Affiliates, is the sole owner of or has
the authority to use, license and sub-license all proprietary rights in
and relating to the Vendor Marks, including all copyright, trademark,
service mark, trade secret and other intellectual property rights, and
the use by Dealer of the Vendor Marks in compliance with this Addendum
will not infringe on or otherwise interfere with the rights of any third
party.
11.1.3 Vendor, through itself or its Affiliates, has all applicable licenses,
permits and other authorizations necessary to perform its obligations
under this Addendum and sell the Services and its performance of its
obligations under this Addendum (whether through itself, its employees,
representatives, designees, agents or any other person or entity
performing Vendor's obligations) shall at all times be in compliance
with all applicable laws, ordinances, rules and regulations and shall
not infringe on any right of any third party.
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11.2 REPRESENTATIONS AND WARRANTIES OF DEALER. Dealer represents warrants and
covenants to Vendor as follows:
11.2.1. Dealer, through its Affiliates, has the authority to enter into and
perform its obligations under this Addendum and the person(s) signing
this Addendum on behalf of it are authorized to execute this Addendum
and bind Dealer.
11.2.2. Dealer is the sole owner of or has the authority to use, license and
sublicense all proprietary rights in and relating to the Dealer Marks,
including all copyright, trademark, service mark, trade secret and other
intellectual property rights and the use by Vendor of the Dealer Marks
in compliance with this Addendum will not infringe on or otherwise
interfere with the rights of any third party.
11.2.3. Dealer, through its Affiliates, has all applicable licenses, permits and
other authorizations necessary to perform its obligations under this
Addendum and its performance of its obligations under this Addendum
(whether through itself, its employees, representatives, designees,
agents or any other person or entity performing Dealer's obligations)
shall at all times be in compliance with all applicable laws,
ordinances, rules and regulations and shall not infringe on any right of
any third party.
12. INDEMNIFICATION. In addition to the indemnity obligations contained in
the Agreement the Parties agree as follows:
12.1 VENDOR'S INDEMNIFICATION. Vendor shall indemnify, defend and hold harmless,
Dealer, its Affiliates and its and their respective officers, directors,
employees and agents from and against any and all losses, costs, obligations,
liabilities, damages, actions, suits, causes of action, claims, subpoenas
demands, settlements, judgments, and other expenses, (including but not limited
to cost of defense, settlement, and reasonable attorney's fees) of whatever type
or nature, including, but not limited to, damage or destruction to property,
injury (including death) to any person or persons, which are asserted against,
incurred, imposed upon or suffered by Dealer by reason of, or arising from (1)
performance or the failure of Vendor (or any of its officers, directors,
employees, agents, delegates or subcontractors) to perform under the terms of
this Addendum, (2) the breach of this Addendum by Vendor (or any of its
officers, directors, employees, agents, delegates or subcontractors), (3) the
violation of any law, rule, regulation or authority by Vendor (or any of its
officers, directors, employees, agents, delegates and subcontractors), and (4)
the acts or omissions of Vendor (or any of its officers, directors, employees,
agents, delegates and subcontractors) relating to the scope of the Addendum,
including but not limited to claims relating to alleged infringement by Vendor
or its Affiliates of third party patent, copyright, trademark or other
proprietary rights.
12.2 DEALER'S INDEMNIFICATION. Dealer shall indemnify, defend and hold harmless,
Vendor, its Affiliates and their respective officers, directors, managers,
employees and agents from and against any and all losses, costs, obligations,
liabilities, damages, actions, suits, causes of action, claims, subpoenas
demands, settlements, judgments, and other expenses, (including but not limited
to cost of defense, settlement, and reasonable attorney's fees) of whatever type
or nature, including, but not limited to, damage or destruction to property,
injury (including death) to any person or persons, which are asserted against,
incurred, imposed upon or suffered by Vendor by reason of, or arising from (1)
performance or the failure of Dealer (or any of its officers, directors,
employees, agents, delegates or subcontractors) to perform under the terms of
this Addendum, (2) the breach of this Addendum by Dealer (or any of its
officers, directors, employees, agents, delegates or subcontractors), (3) the
violation of any law, rule, regulation or authority by Dealer (or any of its
officers, directors, employees, agents, delegates and subcontractors), and (4)
the acts or omissions of Dealer (or any of its officers, directors, employees,
agents, delegates and subcontractors) relating to the scope of the Addendum,
including but not limited to claims relating to alleged infringement by Dealer
or its Affiliates of third party patent, copyright, trademark or other
proprietary rights.
12.3 WAIVER OF DAMAGES. Dealer and Vendor mutually agree that except in the case
of gross negligence, willful misconduct, breach of confidentiality,
Indemnification, or infringement by one party of the other party's intellectual
property, neither party will have any liability to the other party for any
punitive, special, consequential, incidental, or indirect damages, or lost
profits or revenues arising from or relating to this Addendum, the Services, or
the Equipment, even if advised of the possibility of such damages.
13. WAIVER OF LIENS. The Parties hereby waive and relinquish any and all
materialman's, mechanics, workman's and other liens, statutory or
otherwise, upon the property of the other Party's customer.
Subscription Service Addendum Final 100305
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14. PRESS RELEASES. Either Party may, in its sole discretion, issue an
initial separate or joint press release relating to this Addendum,
provided that the releasing Party must obtain the prior written approval
of the non-releasing Party. Either Party may use the name of such other
Party in a press release or public announcement(s) relating to the
rights and obligations set forth in this Addendum and/or the
relationship established by this Addendum; provided that neither Party
shall issue any such press release or make any such public
announcement(s), except for general statements in a Party's marketing
material identifying that a Vendor/Dealer relationship exists between
the Parties, without the express prior written consent of the other
Party.
15. RELATIONSHIP OF PARTIES. The Parties to this Addendum are independent
contractors and neither Party shall be deemed an agent, representative,
or partner of the other Party. This Addendum shall not be interpreted or
construed to create an association, agency, joint venture or
partnership, employment, franchise or agency relationship between the
Parties nor shall it be interpreted or construed to impose any liability
attributable to such a relationship upon either Party. Neither Party
shall have any right, power or authority to enter into any Addendum of
or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. Dealer acknowledges that this is a
non-exclusive agreement with respect to Vendor. Vendor expressly
reserves the right, without obligation or liability to Dealer, to market
and sell the Services, the Equipment, and any other products and
services in the same area served by Dealer, whether through Vendor's own
stores or representatives or through others, including, but not limited
to, other authorized representatives, dealers, resellers, distributors,
and retailers.
16. DISCLAIMER.
16.1 NO MINIMUM REFERRALS. VENDOR ACKNOWLEDGES THAT DEALER DOES NOT GUARANTEE
ANY MINIMUM NUMBER OF REFERRALS OF CUSTOMERS FOR THE SERVICES AND DOES NOT
GUARANTEE ANY MINIMUM AMOUNT OF REVENUES TO VENDOR UNDER THIS ADDENDUM.
SIMILARLY, DEALER ACKNOWLEDGES THAT VENDOR DOES NOT GUARANTEE ANY MINIMUM NUMBER
OF SALES TO MEMBERS FOR WHICH VENDOR WILL PAY COMMISSIONS TO DEALER UNDER THIS
ADDENDUM.
17. MISCELLANEOUS.
17.1 DELEGATION, SUBCONTRACTING. Each Party shall be solely responsible for the
conduct of all its agents, subcontractors and transferees. Any delegation,
subcontracting or transferring of duties, obligations or services shall in no
way modify or affect the duties of Vendor or Dealer under this Addendum. Subject
to the foregoing, this Addendum shall be binding upon and inure to the benefit
of the Parties and their respective successors and assigns.
17.2 ASSIGNMENT. This Addendum may not be assigned by either Party without first
obtaining the other Party's express written consent, which consent shall not be
unreasonably withheld, conditioned or delayed; provided, however, that either
Party may assign this Addendum without obtaining the other Party's express
written consent, but only after written notice to the other Party (i) to a
purchaser of all or substantially all of the Party's assets or a majority or
controlling interest in such Party's voting stock, provided that the purchaser's
net worth at the time of purchase is equal to or greater than that of the Party
that seeks to assign the Addendum, and further provided that the purchaser is
not a competitor of the non-assigning Party; or (ii) to a present or future
Affiliate.
17.3 GOVERNING LAW. This Addendum shall be governed, construed and interpreted
in accordance with the laws of the State of New York. The parties hereby waive
their respective rights to trial by jury.
17.4 Amendments. This Addendum may not be modified except by a writing
referencing this Addendum and signed by the Parties.
17.5 CONSTRUCTION. The headings contained herein are for the convenience of
reference only and are not of substantive effect Whenever necessary or proper
herein, the singular imports the plural or vice versa, and masculine, feminine
and neuter expressions are interchangeable. This Addendum incorporates
provisions, comments and
Subscription Service Addendum Final 100305
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suggestions proposed by both Dealer and Vendor. No ambiguity or omission in this
Addendum shall be construed or resolved against either Dealer or Vendor on the
ground that this Addendum, or any of its provisions were drafted or proposed by
Dealer or Vendor.
17.6 SEVERABILITY. If any provision herein shall be deemed or declared
unenforceable, invalid or void by a court of competent jurisdiction, the same
shall not impair any of the other provisions contained herein which shall be
enforced in accordance with their respective terms.
17.7 REMEDIES; WAIVER. No failure or delay by either Party hereto to exercise
any right, power or privilege provided hereunder or under the Addendum or by
applicable law shall operate as a waiver (hereof; nor shall any single or
partial exercise of any such right, power, or privilege preclude any other or
future exercise thereof of the exercise of any other right, power or privilege.
The remedies provided herein shall be cumulative and shall not be exclusive of
any rights or remedies provided by law.
17.8 COUNTERPARTS/FACSIMILE COPIES. THIS Addendum may be executed in one or more
counterparts, each of which shall be deemed an original, but which collectively
will constitute one and the same instrument Facsimile copies of the fully
executed Addendum shall be effective, and the Parties will execute and return
original signature Addendums as soon as reasonably possible.
IN WITNESS WHEREOF, the Parties have executed this Subscription Service Addendum
as of the date first above written.
CLEARWIRE LLC BEST BUY STORES, L.P.
------------------------------------- --------------------------------------
Signed: /s/ Ben Wolff Signed: /s/ Daniel Moc
--------------- -----------------
Print Name: BEN WOLFF Print Name: Daniel Moc
Title: EXECUTIVE VICE PRESIDENT Title: VP. Vendor Mgmt.
Date: 10-3-05 Date: 10-5-05
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EXHIBIT A
SELECTED
DEALER STORES
This Exhibit A sets forth the Selected Dealer Stores in which Dealer is
authorized to Market the Services. Vendor and Dealer agree that this Exhibit A
shall be amended from time to time by the Parties and that Vendor will notify
Dealer when additional Dealer store locations become available for Marketing as
well as when Selected Dealer Stores are no longer available for Marketing due to
changes in the geographic coverage of the Current Services.. Vendor shall give
Dealer at least [***} prior written notice of such changes. If Dealer removes a
store from this Exhibit A for any reason other than a breach of this Addendum by
Vendor, Dealer will immediately pay Vendor *** for each such store that is
removed by Dealer, unless Dealer substitutes for each removed store a reasonably
equivalent store that is approved by Vendor (such approval not to be
unreasonably withheld by Vendor). Dealer shall consult with Vendor prior to any
changes to the list of stores on this Exhibit A. If Vendor deactivates a
particular market, and Dealer removes from this Exhibit A the store or stores in
that market, Dealer will be entitled to retain the *** Store Fee for each such
store that is removed from this Exhibit A.
In addition, Vendor has the option to assort a store outside of the Market Maker
program as mutually agreed in the event that Vendor anticipates a low
performance store based on experience in that market. These will be defined as
non-Market Maker stores and not subject to the Market Maker store fee.
Assortment fee for non-Market Maker stores to be mutually agreed upon by Vendor
and Dealer.
[Download Table]
CLEARWIRE MARKET MAKER STORES
REGION DISTRICT STORE NUMBER STORE NAME STATE PROTOTYPE
1 2 12 ST. CLOUD MN MN 36K C2
1 1 40 EAU CLAIRE Wl Wl 45K C3-2
1 1 43 DULUTH MN MN 45K C3-2
10 41 128 RENO NV NV 45K C4.5
10 40 141 MODESTO CA CA 45K C4.5
3 8 182 KILLEEN TX TX 30K SM
3 8 244 WACO TX TX 30K C5
3 65 280 MIDLAND/ODESSA TX TX 45K C3-1
12 20 350 JACKSONVILLE FL FL 45K C5
10 45 359 BELLINGHAM WA WA 30K SM
10 40 391 TRACY CA CA 30K C5
12 20 429 REGENCY MALL FL FL 45K C4.5
12 20 430 ORANGE PARK FL FL 42K C4.5
12 20 515 DAYTONA BEACH FL FL 58K C3-1
1 2 522 BAXTER MN MN 30K C5
2 57 526 BOISE ID ID 45K C5
10 40 528 STOCKTON CA CA 45K C5
8 33 529 VISALIA CA CA 30K C5
10 46 539 ANCHORAGE AK AK 45K C5
10 46 590 KENNEWICK WA WA 30K SM
10 46 600 SPRINGFIELD OR 45K C5
10 45 798 BURLINGTON WA WA 20K C5
10 40 844 MERCED CA CA 30K C5
10 41 850 CARSON VALLEY NV NV 30K C5
3 65 940 ABILENE TX 20K C5
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EXHIBIT B
*** EXHIBIT
Capitalized terms not otherwise defined in this Exhibit B shall have the meaning
ascribed to such terms in the SSA., This Exhibit B represents further commitment
to promote the Services as set forth in the SSA.
1. TERM. Status of CLEARWIRE as a featured WIRELESS DATA service provider
shall commence on *** ("Launch"), and continue as provided herein or
until the SSA has expired or is Terminated.
2. RESERVED.
3. ***
3.1 Best Buy will develop and implement each of the following elements of the
Market Maker Plan to promote the Services in Selected Dealer Stores.
3.1.1 ***. Clearwire shall participate in the *** free of additional cost, with
the exception of vendor funded items booth/display, ***, shipping, additional
hotel room beyond sponsorship agreements. In addition, Best Buy will provide
incremental man hours of training and will promote the Services to its employees
using tools such as: ***, Retail Associate Training, and ***, as those
promotions are currently defined by Best Buy internal practices; and.
3.1.2 ***. 1) Best Buy will provide signage for the Services and Equipment. 2)
Clearwire's Equipment and Services shall have placement on the *** or other
similar display. 3) Best Buy will also provide the Services and Equipment with
placement on interactive terminals (where available); and
3.1.3 ***. Best Buy will provide ***. This support will include advertising
within the following major areas, or other advertising of equivalent value:
i) [***] on service availability and version options;
ii) [***]
iii) [***]
3.1.4 Promotions. [***] Clearwire will have input into such promotions, all
fees, expenses and related administrative charges will be included in the Co-Op
Fee, Store Fee and other marketing funds as described in Exhibit C to the SSA.
4. MARKETING AND USE OF *** FEE. Except as expressly stated otherwise in this
Exhibit or the SSA, the Market Maker Fee and resources shall be expended by Best
Buy in its sole discretion in accordance with this Market Maker Campaign.
5. MARKET MAKER EVALUATION.
Best Buy shall develop the *** and provide it to Clearwire for its review and
comment. Clearwire will then have ten (10) business days to review the *** and
provide its comments to Best Buy. Best Buy will consider Clearwire's comments in
good faith and deliver a final *** to Clearwire for its review prior to Launch.
After Launch, the Parties will meet throughout the duration of the *** to
discuss and evaluate the success of the ***. At these meetings, Clearwire may
propose reasonable revisions to the *** and Best Buy will not unreasonably
reject such proposals.
Best Buy will provide Clearwire with *** reports in a form acceptable to the
Clearwire detailing Best Buy's expenditures in fulfillment of Best Buy's
obligations under the ***.
If the *** declines below the original store funding amount, Best Buy will have
the discretion to modify the plan according to the revised budget. These changes
will be reflected within a revision of the [***]. If the store funding ends
after the initial *** month launch period, according to the Subscription
Services Compensation Addendum, the Market Maker plan ends within a commercially
reasonable time frame to decommission current store placement and assort
Clearwire within the traditional assortment of broadband vendors.
Subscription Service Addendum Final 100305
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EXHIBIT C
SERVICE DEFINITIONS AND COMPENSATION
1. CURRENT SERVICES SOLD THROUGH DEALER SALES CHANNELS: Vendor Services that
have been mutually agreed upon by the Parties to be Current Services include:
Wireless Broadband Internet Access service.
2. COMPENSATION. Vendor will compensate Dealer in accordance with the following
procedures.
2.1 ACTIVATION COMMISSIONS
Vendor will pay Dealer a one-time commission equal to *** (the "Activation
Commission") for each Member Activated by Dealer on a one (1) or two (2) year
(as required by the applicable rate plan) Member contract for any Authorized
Service rate plan made available by Vendor to its Members in the same market
area, provided such Member continuously subscribes to the Services during ***
consecutive day period beginning on the date of Activation (the "Chargeback
Period"). Notwithstanding the foregoing, should a Member's service be suspended,
but restored, the period of active service before and after the suspension will
count toward satisfaction of the Chargeback Period, but the period of the
suspension will not be included. In the event a Member's service is suspended
and terminated prior to being restored, the number of days for purposes of
computing the length of the Chargeback Period that was satisfied will not
include the period of the suspension and the Member will be deemed to have
terminated service on the date the suspension period began. Vendor will pay
Dealer all Activation Commissions owing Dealer within thirty (30) calendar days
from the end of the calendar month in which the Member Activations occur. Dealer
acknowledges and agrees that from time to time, Vendor may have rate plans which
Dealer is not authorized to offer hereunder. No Activation Commissions will be
paid for demonstration activations or Dealer employees who activate special
accommodation plans.
The Activation Commission will be subject to Vendor's right to recover or
"Chargeback" the Activation Commission if the applicable Member fails to satisfy
the Chargeback Period for reasons which include, but are not limited to: Service
cancellation, the Member moves out of the area, lack of coverage, suspension or
interruption for any reason (including nonpayment) during the Chargeback Period.
Dealer further understand and agrees that at Vendor's sole discretion,
charge-backs and debits may be offset against any Commissions, bonuses, or other
amounts owed to Dealer by Vendor. If a Member continuously subscribes to
Vendor's broadband wireless service for less than the full Chargeback Period,
Vendor will chargeback 100% of the Activation Commission. In no event will
Vendor charge-back Activation Commissions on more than *** of the total number
of Members Activated by Dealer during the Term of this Addendum. All Chargebacks
must be raised within *** days of Activation or such Chargebacks are waived.
2.2 RESIDUAL
Vendor will pay to Dealer a monthly recurring residual fee (the "Residual")
equal to *** of the gross revenue received by Vendor for the monthly service fee
for the Services (and excluding any modem rental charges of up to *** per month,
and excluding any taxes, governmental surcharges, and other similar charges)
from each Member during the first *** months of such Member's agreement to
purchase Clearwire Authorized Services. Payment of the Residual will be made
within thirty (30) calendar days from the end of the calendar month in which the
Member Activations occur. Vendor's obligation to pay such Residuals survives the
expiration or termination of this Agreement, unless termination results from
Dealer's breach of this Agreement.
2.3 MARKETING FEES
Co-Op Fee: Vendor will pay to Dealer, within thirty (30) calendar days from the
end of the calendar month in which the Member Activations occur, a one-time fee
equal to *** per Activated
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Member to a marketing co-op fund. Such fund shall be allocated and used in
accordance with Vendor's Co-Op Program or as otherwise agreed by Vendor and
Dealer in writing. This Co-Op Fee is not subject to chargeback by Vendor.
Store Fee: Vender will pay to Dealer a fee equal to *** for each Selected Dealer
Store (" Store Fee") that activates and implements the "dealer Market Maker
Campaign" identified on Exhibit B attached hereto, which includes premiere
product/service positioning, advertising, and sales training related to selling
Vendor service. The Store Fee will be payable within *** days of such Selected
Dealer Store being activated and selling Services as provided herein.
If the average annual gross Activations per store per week, as measured on
*** for the immediately preceding ***, is below *** then all future annual
store payments will change according to the following schedule:
[Download Table]
Ads/Store/week New annual store fee
------------------ ---------------------
*** ***
Only the gross add data for stores open more than *** will be included in
the average calculation. In addition, the average calculation will exclude
any day in which Vendor's order entry and billing system is available to
Activate Members for less than *** store hours. "Store hours", means the
*** period during which a Selected Dealer Store is open for business to
the general public. The gross add data will be included regardless of
excluded days caused by system unavailability.
Infrastructure Fee: Vendor will pay to Dealer the total amount of *** to be used
solely in connection with fulfillment of Dealer's obligations under this
Addendum the Infrastructure Fee will be paid in three (3) equal payments. The
first payment will be made within thirty (30) days of mutual execution of this
Addendum; the second payment will be made on *** and the third payment will be
made on *** Vendor's obligation to make either of the second or third payments
will be conditioned on the continuing effectiveness of this Addendum.
2.4 ADDITIONAL COMPENSATION OPPORTUNITIES
The parties will use commercially reasonable efforts to identify and implement
additional commission, bonus and related compensation opportunities for Dealer
with the intent to reward top performing Selected Dealer Stores and make
available additional marketing funds in connection with this Addendum. Special
marketing programs and special compensation arrangements must be agreed to in
writing and signed by authorized representatives of both parties.
Preferred method of payment is via wire sent to the bank account below:
Name on Bank Account = Best Buy Co., Inc.
US Bank
101 E. Fifth Street
St. Paul, MN. 55101
Best Buy Co., Inc.
Acct# ***
ABA# ***
Subscription Service Addendum Final 100305
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EXHIBIT D
VENDOR BRAND GUIDELINES
(SEE ATTACHED)
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CLEARWIRE(R)
wireless broadband
EXHIBIT D
SUBSCRIPTION SERVICE ADDENDUM
VENDOR BRAND GUIDELINES
Proprietary and confidential information of Clearwire. Not for use by any third
party, or disclosure to any third party, other than Clearwire and its
affiliates, and Clearwire's Authorized Representatives, except with Clearwire's
written approval.
1
ADVERTISING AND MARKETING REQUIREMENTS
For all advertising and marketing Dealer will comply with Clearwire's
requirements and the terms, conditions and Standards set forth in this Exhibit.
Notwithstanding anything to the contrary herein, Dealer will be responsible for
ensuring that its advertising and marketing complies with all applicable laws,
rules and regulations.
- All claims in any advertising or marketing regarding Clearwire's products
and/or Services must be truthful, in good taste and consistent with Clearwire's
brand, as determined by Clearwire. Any false or misleading advertising or
advertising that is not in good taste or is inconsistent with the Clearwire
brand, as determined by Clearwire, may be reported to Clearwire's legal
department for possible action.
- Advertising that contains any claims (express or implied) must have supporting
documentation that substantiates such claims, THESE INCLUDE CLAIMS SUCH AS
CLAIMS ABOUT THE PRODUCT, CLEARWIRE, OR THE RETAILER.
- Advertised rate plans must be Clearwire's approved, current retail pricing.
Special rate plans, other rate plans and/or promotional pricing plans are NOT to
be quoted or referenced in any advertisement under any circumstances unless the
advertising is placed in a business specific circular and is approved by
Clearwire in writing and in advance. Each price listed must include disclaimers
or explanations that clearly and conspicuously state what the price represents,
such as invoice price, rebate, final price, etc.
- All advertising must clearly and conspicuously state that "certain other
restrictions apply."
CLEARWIRE DOES NOT PROVIDE LEGAL ADVICE ABOUT ADVERTISING REQUIREMENTS.
REPRESENTATIVE SHOULD CONSULT ITS OWN LEGAL COUNSEL REGARDING COMPLIANCE WITH
THESE GUIDELINES AND APPLICABLE LAW.
IF ANY FINES OR PENALTIES ARE IMPOSED ON CLEARWIRE DUE TO REPRESENTATIVE'S
FAILURE TO ABIDE BY APPLICABLE LAW, REPRESENTATIVE SHALL IMMEDIATELY PAY TO
CLEARWIRE THE AMOUNT OF THE FINE(S) OR PENALTIES AND ALL REASONABLE ATTORNEYS'
FEES AND COSTS INCURRED BY CLEARWIRE IN CONNECTION WITH SUCH FINE(S) OR
PENALTIES. IF REPRESENTATIVE FAILS TO REIMBURSE CLEARWIRE THE AMOUNT OF SUCH
FINE(S) OR PENALTIES AND ALL REASONABLE ATTORNEYS' FEES AND COSTS INCURRED BY
CLEARWIRE IN CONNECTION WITH SUCH FINE(S) OR PENALTIES, CLEARWIRE SHALL HAVE THE
RIGHT TO DEDUCT SUCH AMOUNT FROM ANY OTHER PAYMENT DUE REPRESENTATIVE UNDER THE
AUTHORIZED REPRESENTATIVE AGREEMENT, THESE GUIDELINES OR OTHERWISE.
Proprietary and confidential information of Clearwire. Not for use by any third
party, or disclosure to any third party, other than Clearwire and its
affiliates, and Clearwire's Authorized Representatives, except with Clearwire's
written approval.
2
CLEARWIRE NATIONAL BRAND STANDARDS
All advertising and marketing incorporating the Clearwire brand name and/or
Clearwire Marks (as defined in Subscription Service Agreement), or other
representative indicator must be submitted to Clearwire for written approval
prior to being produced, published or aired, regardless of whether such
advertising or marketing is eligible for any other Clearwire-sponsored program.
This includes, for example, business cards, stationery, and location signs. All
use of Marks must comply with these Standards, including the requirements as
described under Logo Standards below. Representative must use camera-ready
artwork, as provided by Clearwire.
USE OF THE CLEARWIRE MARKS
The following guidelines explain how Dealer will use the Clearwire Marks in
their marketing and promotional materials. All usage of the Clearwire signature
(logo, logo-type, broadband wireless services) must be authorized by Clearwire
prior to any use at all times and must comply with all of the Clearwire graphic
standards and give Clearwire control over all uses of its name and Marks.
Clearwire names and Marks must be used by Representative only in conjunction
with the sale of authorized Clearwire Services. Clearwire at all times reserves
the unilateral right to modify or alter the Marks or establish and enforce such
quality standards and additional terms and conditions concerning the use of the
Marks as it deems necessary.
The CAR Logo is a graphical element and can be used in either a horizontal or a
vertical format.
See examples below.
Typeface for "Authorized Representative" is Gotham.
CLEAR SPACE REQUIREMENTS
Dealer will make commercially reasonable efforts to incorporate the minimum
clear space (i.e., the clear area around the logo) is equal to the height of the
letter "1" in the Clearwire Logo.
SIZE REQUIREMENTS
a. Vertical Logo ***
b. Horizontal Logo ***
Proprietary and confidential information of Clearwire. Not for use by any third
party, or disclosure to any third party, other than Clearwire and its
affiliates, and Clearwire's Authorized Representatives, except with Clearwire's
written approval.
3
APPROVED COLOR PALETTE FOR AUTHORIZED REPRESENTATIVE LOGO
The color palette is consistent with the Clearwire color palette.
The CAR Logo can be printed in color or reversed out of a colored background
(only the specific color palette blocks). The preferred standard is placement of
the logo on a white background, using the standard logo color palette.
CLEARWIRE GREEN
***(printed on coated stock)
***(printed on uncoated stock)
CLEARWIRE BLUE
*** (printed on coated stock)
*** (printed on uncoated stock)
CLEARWIRE GRAY
(This color should only be used when silver is not available.)
*** (printed on coated stock)
*** (printed on uncoated stock)
PRIMARY (AND PREFERRED) COLOR USAGE:
Clearwire green, Clearwire blue and Clearwire gray
Use this application when the logo appears against white.
SECONDARY COLOR USAGE:
Black (screens of)
Use this application if you are printing in black and white (no color).
COLORED BACKGROUND USAGE:
There are four colored background options on which to use the Logo. The Logo
color compliments the specific color background and is reversed out of the
background.
The Clearwire Logo should ONLY appear in the approved Logo colors.
Proprietary and confidential information of Clearwire. Not for use by any third
party, or disclosure to any third party, other than Clearwire and its
affiliates, and Clearwire's Authorized Representatives, except with Clearwire's
written approval.
4
EXAMPLES OF CLEARWIRE AUTHORIZED REPRESENTATIVE LOGO AND PROPER USAGE:
CLEARWIRE AUTHORIZED
REPRESENTATIVE LOGO.
[CLEARWIRE LOGO]
Full Color
[CLEARWIRE LOGO]
Black & White
Proprietary and confidential information of Clearwire. Not for use by any third
party, or disclosure to any third party, other than Clearwire and its
affiliates, and Clearwire's Authorized Representatives, except with Clearwire's
written approval.
5
CLEARWIRE AUTHORIZED
REPRESENTATIVE LOGO.
Minimum size for printing
[CLEARWIRE LOGO]
Vertical Signature
[CLEARWIRE LOGO]
Horizontal Signature
Proprietary and confidential information of Clearwire. Not for use by any third
party, or disclosure to any third party, other than Clearwire and its
affiliates, and Clearwire's Authorized Representatives, except with Clearwire's
written approval.
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6
CLEARWIRE AUTHORIZED
REPRESENTATIVE LOGO
MINIMUM AREA. CLEARSPACE.
The minimum clear area around the logo is equal to the height of the letter "I"
in the Clearwire logo.
[CLEARWIRE LOGO]
Vertical Signature
[CLEARWIRE LOGO]
Horizontal Signature
Proprietary and confidential information of Clearwire. Not for use by any third
party, or disclosure to any third party, other than Clearwire and its
affiliates, and Clearwire's Authorized Representatives, except with Clearwire's
written approval.
7
CLEARWIRE LOGO AND TAGLINE.
[CLEARWIRE LOGO]
Color
[CLEARWIRE LOGO]
Black & White
Proprietary and confidential information of Clearwire. Not for use by any third
party, or disclosure to any third party, other than Clearwire and its
affiliates, and Clearwire's Authorized Representatives, except with Clearwire's
written approval.
8
CLEARWIRE COLOR PALETTE.
[Download Table]
Coated Uncoated CMYK RGB
------ -------- ----- -----
clearwire green *** *** *** ***
clearwire blue *** *** *** ***
clearwire gray *** *** *** ***
Coated and Uncoated refers to the printing paper surface. CMYK is typically used
when creating color with 4-color process ink. RGB refers to color builds for
monitor-viewing only.
Proprietary and confidential information of Clearwire. Not for use by any third
party, or disclosure to any third party, other than Clearwire and its
affiliates, and Clearwire's Authorized Representatives, except with Clearwire's
written approval.
9
CLEARWIRE
WIRELESS BROADBAND
WEB-SAFE IDENTITY COLORS
PMS WEB
*** ***
PMS WEB
*** ***
PMS WEB
*** ***
Proprietary and confidential information of Clearwire. Not for use by any third
party, or disclosure to any third party, other than Clearwire and its
affiliates, and Clearwire's Authorized Representatives, except with Clearwire's
written approval.
10
CLEARWIRE AUTHORIZED
REPRESENTATIVE LOGO.
Logo reversed out of a color
[CLEARWIRE LOGO]
Proprietary and confidential information of Clearwire. Not for use by any third
party, or disclosure to any third party, other than Clearwire and its
affiliates, and Clearwire's Authorized Representatives, except with Clearwire's
written approval.
11
CLEARWIRE BRAND STANDARDS
A. CLEARWIRE BRAND LOGO
The Clearwire Brand logo ("Logo") is a graphical element and must be used with
the tagline. The Logo may be produced in full color or in black and white. The
name "clearwire" is always written as one word and lower case, non-italicized,
and accompanied by its copyright registration symbol ((R)). See samples in Logo
Standards section.
B. LOGO TAGLINE USAGE
The Clearwire Brand logo and tagline are considered a single graphical element
The following tagline should always be used with the Logo.
WIRELESS BROADBAND
Typefaces: Gotham Clearwire Medium and Gotham Clearwire Bold
SIZE REQUIREMENTS
a. Vertical Logo ***
b. Horizontal Logo ***
CLEAR SPACE REQUIREMENTS
Dealer will make commercially reasonable efforts to incorporate the minimum
clear space (i.e., the clear area around the logo) is equal to the height of the
letter "I" in the Clearwire Logo.
Proprietary and confidential information of Clearwire. Not for use by any third
party, or disclosure to any third party, other than Clearwire and its
affiliates, and Clearwire's Authorized Representatives, except with Clearwire's
written approval.
12
CLEARWIRE LOGO AND TAGLINE.
[CLEARWIRE LOGO]
Color
[CLEARWIRE LOGO]
Black & White
Proprietary and confidential information of Clearwire. Not for use by any third
party, or disclosure to any third party, other than Clearwire and its
affiliates, and Clearwire's Authorized Representatives, except with Clearwire's
written approval.
13
EXHIBIT E
DEALER MARKETING GUIDELINES
See Dealer Extranet Site www.extendingthereach.com
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EXHIBIT F
VENDOR SET-UP AND REPORTING PROCESSES
VENDOR SET-UP AND PROCESSING:
Dealer has instituted certain interface requirements between itself and its
vendor partners to more effectively manage the process of doing business
together.
NEW VENDOR SET-UP GUIDE: Vendor and Dealer have developed mutually agreed
processes and requirements for the sign-up and fulfillment of new customers, as
more fully described in attached Schedule 1 and as may be updated and modified
by written agreement of the Parties from time to time.
BACK-END/FRONT-END SYSTEMS: Vendor will, within *** days of the effective date
of this Addendum, integrate its automated order entry and fulfillment software
and other systems related to the Activation of the Services ("Vendor OSS
System") into Dealer's existing back-end and front-end systems as necessary to
the efficient performance of the Parties under this Addendum. This will include
but not be limited to providing electronic files to transfer details about
Dealer's customers in accordance with the Dealer's system specifications. Member
activation, installation, and cancellation files will be sent on a daily basis
and payment files in conjunction with issuance of monthly payment.
REPORTING:
1) RECORDS. Vendor shall on a [***] provide to Dealer and its designee an
electronic accounting and reconciliation of all Activations and other
reports or information regarding the Services as may be reasonably
requested by Dealer.
2) REPORTS TO BE JOINTLY DEVELOPED. The Parties shall work together to program
and exchange the following information:
a) Intent to Activate -- This will contain all of the Member Activations
from all Selected Dealer Stores for a particular date. This file will
be sent nightly.
b) Activations -- This file lists all Members that have Activated a
Service with Vendor in a given day. This file is sent from Vendor once
a day.
c) Cancellations -- This file contains a list of all Members who
terminated Service by calling or otherwise contacting the Vendor. This
will be sent nightly from Vendor to Dealer.
d) If requested by Vendor, Dealer has the ability to capture signatures
and send that data as part of the sales record collected at the front
lanes.
3) Vendor will provide a status for all Activations to Dealer (via ESC File
transfer) within *** of the order being installed or
cancelled.
4) Orders status responses shall follow the below example:
[Download Table]
% "Statuses" after 30 days % "Statused" after 60 days % "Statused" after 90 days
-------------------------- -------------------------- --------------------------
60% 85% 100%
PAYMENT FILE
The payment file is what Dealer uses to reconcile the scheduled accounts. This
payment file should match the physical payment amount sent to Dealer from
Vendor. The file will contain the detailed account information (including the
unique identifier) so matching can take place in the ESC system.
Subscription Service Addendum Final 100305
[*** Confidential Treatment Requested]
Page 17 of 19
Monthly payment files are acceptable and details of when during the month the
payment file is sent are determined between Dealer and Vendor.
CHARGEBACK FILE
The chargeback file is only used if Vendor has paid Dealer for a Member where a
chargeback is due under the terms of the Agreement. The chargeback file is used
to recover payment from Dealer to Vendor for those Members.
This file is seldom used, however where it is applicable, a monthly file
transfer is acceptable.
The specific details of these files are presented in the New Vendor Setup Guide
and Dealer's IT and Accounting staff will work with Vendor's IT and Accounting
staff for specific formats and content. In all files, Member account level
content is required. This level of content helps Dealer and Vendor accurately
track the proper receivables scheduled for each Member.
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SCHEDULE 1
TO
EXHIBIT F
***
***
***
***
***
***
***
EXHIBIT G
SERVICE LEVEL AGREEMENTS (SLA's)
1. ACCURACY OF QUALIFICATION DATA -Vendor's loop qualification tool will be
as accurate for Dealer as it is for any Dealer Competitor. Vendor will
make commercially reasonable efforts to minimize the number of false
positives and negatives reported via the loop qualification tool.
2. VENDOR SYSTEM UPTIME -Vendor will make commercially reasonable efforts to
ensure the OSS System will be online and available to the Selected Dealer
Stores at a level equal to that of any Dealer Competitor.
3. VENDOR, OR THIRD PARTY INSTALLATION VENDOR, WILL SETUP AND ENABLE DELIVERY
OF THE SERVICES to Members on the same or similar time intervals as that
provided to similarly situated customers from any Dealer Competitor.
SLAs
1. DEALER SERVICE LEVEL REQUIREMENTS
a. OSS System production environment available *** of retail hours
(7 am - 12 am for each time zone of represented Selected Dealer
Stores), 7 days/week 52 weeks/year
b. OSS System response times of *** or less for *** of the OSS System
requests.
2. VENDOR SYSTEM MAINTENANCE
a. Vendor will provide specific maintenance windows that align with
retail hours of Selected Dealer Stores (M-F 12 am - 5 am CST/CDT)
b. Vendor will provide 60 days advance notice for non critical
maintenance or OSS System changes that Vendor could reasonably
anticipate to result in OSS System downtime. This includes changes
that would affect Dealer partner such as G2B or GetConnected
("Dealer's Partners").
c. Vendor will not release any updates or changes to its OSS System
production environment as it affects Best Buy web service and Dealer
Partners during the Dealer Holiday Retail Freeze (11/1-1/18)
3. VENDOR PRODUCTION PROBLEMS
a. Vendor will promptly notify Dealer with any reportable OSS System
downtime information including ETS for resolution.
b. Vendor will resolve all critical OSS System production problems
within *** of Vendor's discovery of such problem during retail
business hours or within *** during non-retail hours.
c. Vendor will provide a single point of contact and an escalation path
for all OSS System production issues.
4. TESTING AND QUALITY ASSURANCE
a. Vendor agrees to provide a workable, consistently available,
production simulated environment in which Dealer or Dealer's
Partners can test against. This QA environment should be available
*** of the time during Vendor's normal business hours.
b. Vendor will provide Dealer with a full set of valid test data (e.g.
address, phone numbers, credit card numbers) that can be used in the
simulated environment to perform system and quality assurance
testing prior to OSS System production launches. Sufficient data is
necessary to support all potential production scenarios.
5. CONTENT MANAGEMENT
a. Vendor will provide updates to existing marketing plans or
promotions to Dealer 30 day's prior written notice to being
implemented.
b. Vendor will provide all plan and promotional data presented to
Members through a Dealer Partner service Vendor website or sales
tool.
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