Paging Sales Agency Agreement

EXHIBIT 10.4





PAGING SALES AGENCY AGREEMENT





MAJORCO, L.P.





SPRINT COMMUNICATIONS COMPANY, L.P.



JANUARY 17, 1996





TABLE OF CONTENTS

1. DEFINITIONS.............................................................. 1



1.1 General................................................................. 1

1.2 Rules of Construction................................................... 3



2. RELATIONSHIP OF PARTIES;................................................. 3



2.1 Agency.................................................................. 3

2.1.1 Appointment of Agent................................................ 3

2.1.2 Execution of Program Schedule....................................... 3

2.1.3 Customers........................................................... 4

2.1.4 Compliance.......................................................... 4

2.2 Program Schedule........................................................ 4

2.2.1 Contents............................................................ 4

2.2.2 Effect.............................................................. 5

2.3 Subagents............................................................... 5

2.4 Tariffs and Prices...................................................... 6

2.5 Marketing............................................................... 6

2.5.1 General............................................................. 6

2.5.2 Packaging........................................................... 6

2.5.3 Telemarketing....................................................... 6

2.5.4 Trademark........................................................... 7

2.5.5 Joint Marketing Agreement........................................... 7

2.6 Restriction on Agent Authority.......................................... 7

2.7 Outsourcing............................................................. 7

2.7.1 General............................................................. 7

2.7.2 Outsourcing to Agent................................................ 8

2.8 Order Acceptance and Cancellation; Discontinuation of Service........... 9

2.9 Cooperation............................................................. 9

2.10 Resale Agreement....................................................... 9

2.10.1 General............................................................ 9

2.10.2 Notice............................................................. 9

2.10.3 Vendor intellectual property....................................... 10

2.10.4 Misuse............................................................. 10

2.11 Access................................................................. 10



3. PAYMENTS................................................................. 11



3.1 Determination........................................................... 11

3.2 Commissions of Subagents................................................ 11

3.3 Sole Compensation....................................................... 11

3.4 Taxes................................................................... 12



4. ETHICAL CONDUCT AND RELATED COVENANTS.................................... 12



5. CONFIDENTIALITY; TRADE SECRETS........................................... 12



5.1 Restriction............................................................. 12

5.2 Use..................................................................... 12

5.3 Copying................................................................. 13

5.4 Care.................................................................... 13

5.5 Ownership............................................................... 13

5.6 Limitation.............................................................. 13

5.7 Relief.................................................................. 14





5.8Term.................................................................... 14

5.9Right to Disclose....................................................... 14



6.INSURANCE................................................................ 15



6.1Required Insurance of Agent............................................. 15

6.2Required Insurance of Principal......................................... 15

6.3Policies of Insurance................................................... 15

6.4No Limitation on Liability.............................................. 15

6.5Compliance.............................................................. 16

6.6Release................................................................. 16



7.REPRESENTATIONS AND WARRANTIES........................................... 16



7.1Due Incorporation or Formation; Authorization of Agreements............. 16

7.2No Conflict; No Default................................................. 17

7.3Litigation.............................................................. 17



8.LIABILITY OF PARTIES..................................................... 17



9.INDEMNIFICATION.......................................................... 18



9.1Indemnification by Agent................................................ 18

9.2Indemnification by Principal............................................ 19

9.3Procedure............................................................... 19

9.3.1 Notice........................................................... 19

9.3.2 Defense by Indemnitor............................................ 19

9.3.3 Defense by Indemnitee............................................ 20

9.3.4 Costs............................................................ 20



10.DISPUTE RESOLUTION....................................................... 20



10.1Negotiation............................................................. 20

10.2Arbitration............................................................. 21

10.3Attorneys and Intent.................................................... 21



11.TERMINATION.............................................................. 21



11.1Termination by Breach................................................... 21

11.2Voluntary Termination................................................... 22

11.3Transition Period....................................................... 22

11.4Effects of Termination.................................................. 23

11.5Sale of Customers....................................................... 23



12.GENERAL PROVISIONS....................................................... 24



12.1Notices and Inquiries................................................... 24

12.2Construction............................................................ 25

12.3Time.................................................................... 25

12.4Headings................................................................ 25

12.5Severability............................................................ 25

12.6Further Action.......................................................... 26

12.7Governing Law........................................................... 26

12.8Counterpart Execution................................................... 26

12.9Specific Performance.................................................... 26

12.10Entire Agreement....................................................... 26

12.11Parties in Interest; Limitation on Rights of Others.................... 27

12.12Assignability.......................................................... 27

12.13Waivers; Remedies...................................................... 27

12.14Force Majeure.......................................................... 27





12.15 Continuation of Exclusivity........................................... 28

12.16 Consistency........................................................... 28

12.17 Disclosure............................................................ 28

Exhibit A: Form of Program Schedule

Exhibit B: Senior Executives for Dispute Resolution







THIS PAGING SALES AGENCY AGREEMENT is entered into as of the 17th day of January, 1996, by and between SPRINT COMMUNICATIONS COMPANY L.P., a Delaware limited partnership ("Sprint"), and MAJORCO, L.P., a Delaware limited partnership ("MajorCo").



1. DEFINITIONS



1.1 GENERAL - - -----------



As used in this agreement, the following terms have the meanings set forth below:



"AGENT" means Sprint.



"AGREEMENT" means this agreement, any exhibit to this agreement and any Program Schedule made pursuant to this agreement.



"CUSTOMER" means customers of Principal for purposes of Paging Services. The term does not include persons who are customers of Agent for non-Paging Services.



"DISTRIBUTOR" means an Entity authorized by an Agent or Subagent pursuant to Section 3 in this Agreement to market Paging Services directly to end-users.



"ENTITY" means any firm, corporation, company, partnership, group, trust, joint venture, association, Governmental Authority or other legal entity or organization.



"GOVERNMENTAL AUTHORITY" means any federal, state, or local court, administrative agency, board, bureau, or commission or other governmental department, authority, or instrumentality.



"LICENSED MARK" means the trademark "Sprint" together with the related "Diamond" logo.



"MAJORCO AGREEMENT" means the Agreement of Limited Partnership of MajorCo, L.P.



"MARK" means the tradename, service mark, brand, or trademark of a Party.



"PAGING SERVICE" means that paging service identified as the paging service on a Program Schedule pursuant to Section 2 in this Agreement.



"PARTY" means Sprint or MajorCo individually, and "PARTIES" means Sprint and MajorCo collectively.



"PERSON" means any individual or Entity.



"PRINCIPAL" means MajorCo.



"PROGRAM SCHEDULE" means a program schedule that is Issued pursuant to Section 2 in this Agreement.



"PROPRIETARY INFORMATION" as described in Section 5.1.



"RESALE AGREEMENT" means an agreement between a Vendor and Principal under which Principal purchases paging services from Vendor for resale by Principal.



"RESPONSIBILITY" means a responsibility undertaken by Agent in connection with its marketing of Paging Services offered by Principal under this Agreement.



"SPRINT TRADEMARK LICENSE AGREEMENT" means the Sprint Trademark License Agreement of March 28, 1995, between Sprint and MajorCo.



"SUBAGENT" means an Entity authorized by an Agent to appoint Distributors and to market Paging Services directly to end-users.



"SUBSIDIARY" of any Person means an Entity



(a) of which more than fifty percent (50%) of the outstanding shares or

securities are owned or controlled, directly or indirectly through one or

more Subsidiaries, by such Person, and the shares or securities so owned

entitle such Person and/or Subsidiaries to elect at least a majority of

the members of the board of directors or other managing authority of such

Entity or



(b) which does not have outstanding shares or securities, as may be the

case in a partnership, joint venture or unincorporated association, but of

which more than fifty percent (50%) (by value) of the ownership interest is

owned or controlled, directly or indirectly through one or more

Subsidiaries, by such Person, or in which the ownership interest so owned

entitles such Person and/or Subsidiaries to make the decisions for such

Entity,



provided, in each case, that such Entity will be deemed to be a Subsidiary only so long as such ownership or control exists.



"TARIFF" means a tariff filed with the Federal Communications Commission and/or a state regulatory Commission and pursuant to which Principal offers Paging Services.



"TRANSITION PERIOD" as described in section 11.3.



"VENDOR" means a provider of paging service to Principal.



1.2 RULES OF CONSTRUCTION - - -------------------------



The definitions in this Agreement apply equally to both the singular and plural forms of the terms defined.



Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter formS.



The words "include", "includes" and "including" are deemed to be followed by the phrase "without limitation".



Unless the context otherwise requires, any references to any agreement or other instrument or statute or regulation are to it as amended and supplemented from time to time (and, in the case of a statute or regulation, to any corresponding provisions of successor statutes or regulations).



Any reference in this Agreement to a "day" or number of "days" is a reference to a calendar day or number of calendar days.



If any action or notice is to be taken or given on or by a particular calendar day, and such calendar day is not a business day for Principal then such action or notice will be deferred until, or may be taken or given on, the next business day.



2. RELATIONSHIP OF PARTIES;

AGENT RESPONSIBILITIES



2.1 AGENCY - - ----------



2.1.1 APPOINTMENT OF AGENT



MajorCo ("Principal") appoints Sprint ("Agent") to be its agent for the sale of Paging Services. The Paging Services are all of the Paging Services that MajorCo, now or in the future, has the right to resell as a reseller pursuant to a paging resale agreement between MajorCo and any paging company and which agreement is identified on a Program Schedule, as described in section 11.3



2.1.2 EXECUTION OF PROGRAM SCHEDULE



Concurrently with the execution of this Agreement, the Parties will execute an initial Program Schedule with respect to those Paging Services that MajorCo has the right to resell as of the date of this Agreement. If MajorCo subsequently obtains the right to sell additional Paging Services (e.g. 2-way paging and voice paging) then Majorco and Sprint will use commercially reasonable efforts to negotiate a Program Schedule covering such additional Paging Services. The parties may



designate on the Program Schedule certain paging network features that Agent may provide rather than using the paging network feature as provided by Principal.



2.1.3 CUSTOMERS



All Customers obtained by Agent are the Customers of Principal. Upon termination of this Agreement Agent does not have the right to take the Customers, rather the Customers remain the Customers of Principal. The Agent and Principal may communicate with Customers at such time and on such conditions as each separately determines. Agent and Principal will use commercially reasonable efforts to coordinate their communications to the Customer to ensure the Customer is receiving a consistent message regarding Paging Services. Agent and Principal will send to the other a copy of any communication directed to Customers and relating to paging services, including copies of print ads, tapes of commercials, and samples of mailing insert within a reasonable time after the communication with the Customer.





2.1.4 COMPLIANCE



Agent agrees to comply with all procedures and operating guidelines established by Principal, including procedures required by law, contract or policies adopted by Principal (e.g. advising Customers of the terms and conditions of the limitations of liability relevant to the Paging Services or pre-approval of marketing packets). Principal will notify Agent in writing 30 business days in advance of the adoption, modification, or termination of any such procedure and operating guideline, unless a shorter time period is required by law.



2.2 PROGRAM SCHEDULE - - --------------------



2.2.1 CONTENTS



Program Schedules will be in the form of Exhibit A. The terms and conditions included in the Program Schedule will include the following:



a) the specific Paging Services;



b) the marketing and sales vehicles in addition to those authorized in

Section 2.5 through which the Paging Services may be offered;



c) the Tariff under which, or price at which, the Paging Services are to

be offered by Agent;





d) the specific Responsibilities, in addition to those provided in this

Agreement, that the Agent is to perform in connection with the

marketing and sales of such Paging Services;



e) the payments to be made between Principal and Agent with respect to

the agency relationship and any other services provided by one to the

other pursuant to this Agreement;



f) the duration of the Program Schedule. If no duration is indicated

then the Program Schedule will continue until this Agreement is

terminated;



g) the redacted Resale Agreement.



The Program Schedule may specify additional terms and conditions, including without limitation restrictions on the Agent's authority with respect to Customers, territories, sales vehicles, sales channels and appointment of Subagents and Distributors.



2.2.2 EFFECT



If there are any inconsistencies between the Resale Agreement and the Program Schedule of which the Resale Agreement is a part, then the terms and conditions of the Resale Agreement are controlling. If there are any inconsistencies between the Program Schedule (as modified to be consistent with the Resale Agreement) and this Agreement, then the terms and conditions of the Program Schedule are controlling.



2.3 SUBAGENTS - - -------------



Unless expressly restricted from doing so in a Program Schedule, Agent has authority to appoint any of its Subsidiaries as Subagents and Distributors to market and sell Paging Services, subject to the provisions of this Agreement. Agent is responsible for ensuring compliance by its Subagents and Distributors with all the terms and conditions of this Agreement and the applicable Program Schedule. Agent does not have authority to appoint persons other than its Subsidiaries as Subagents or Distributors, unless expressly authorized to do so in a Program Schedule.



2.4 TARIFFS AND PRICES - - ----------------------



Paging Services offered by Principal pursuant to Tariff will be marketed by Agent pursuant to the appropriate Tariff. Paging Services not offered by Principal pursuant to Tariff will be marketed by Agent pursuant to a price schedule to be mutually agreed upon. Each Party will use commercially reasonable efforts in negotiating the price schedule. If Principal and Agent cannot agree upon a price schedule, then Principal may establish a price schedule and such price schedule is subject to change, modification, or withdrawal by Principal upon 120 days prior written notice by Principal to Agent, except as otherwise provided in a Program Schedule or as the Parties may otherwise agree. Tariffs are subject to change, modification, or withdrawal by Principal upon 120 days prior written notice by Principal to Agent, except as otherwise provided in a Program Schedule or as the Parties may otherwise agree.



2.5 MARKETING - - -------------



2.5.1 GENERAL



Agent may market the Paging Services by means of any of its existing, directly owned marketing and sales vehicles which Agent chooses, including outbound/inbound telemarketing, billing inserts, direct mail, direct sales, employee programs, advertising and promotions. Agent is responsible for all expenses and obligations that it incurs as a result of its efforts to market Paging Services.



Without Principals prior written consent, which will not be unreasonably withheld, Agent will not use any other marketing and sales vehicles ( e.g. retail channels or third party affinity programs like USAA) to market the Paging Services, except that Agent may use existing affinity channels (e.g. USAA) as of the date of this Agreement. The Principal may withhold the consent only to ensure effective market coordination or to comply with other obligations or restrictions imposed by other contracts to which Principal is a party and in any event such consent will not be unreasonably withheld.



2.5.2 PACKAGING



Agent may package any of the Paging Services with any of the Agent's long distance services, including personal number service (a/k/a "PNS").



2.5.3 TELEMARKETING



Agent may solicit orders by means of telemarketing. Agent must coordinate its activities with Principal to ensure that activation of Paging Services are in



accordance with federal and state law. Principal may confirm compliance with this section including, without limitation, contacting Customers solicited by Agent.



2.5.4 TRADEMARK



All advertising, marketing, and promotional activities undertaken by Agent with respect to Paging Services, and all other usage by Agent of trademarks, service marks, brands, and tradenames owned by Principal, will be in accordance with the terms of the Sprint Trademark License Agreement.



2.5.5 JOINT MARKETING AGREEMENT



The parties acknowledge that the parties are negotiating with the other partners of MajorCo, L.P. a Joint Marketing Agreement that will define the manner in which the parties to that agreement market various telecommunications products. To the extent the Joint Marketing Agreement once effective contains terms inconsistent with the terms of this Agreement then the Joint Marketing Agreement will control and this Agreement will be deemed amended to conform to the Joint Marketing Agreement as of the date the Joint Marketing Agreement becomes effective.



2.6 RESTRICTION ON AGENT AUTHORITY - - ----------------------------------



Agent has no authority to act on behalf of Principal, nor may Agent bind Principal in any manner whatsoever, except as expressly provided in this Agreement and the Program Schedules. Principal will incur no obligation to employees or agents utilized by Agent to market Paging Services offered by Principal and such persons will at all times remain employees and agents of Agent. Agent will function as a non-exclusive, independent contractor and will use reasonable commercial efforts to perform its Responsibilities. Agent will not act outside the scope of its authority granted in this Agreement.



2.7 OUTSOURCING - - --------------- 2.7.1 General



Principal may in its sole discretion contract with third-parties to provide various aspects of the operation of the paging business, including activation, fulfillment, billing, customer service, collections, and sales and marketing. Principal may make such contracts exclusive or non-exclusive. Principal will remain liable for all obligations outsourced to third parties. All materials developed for such operations, including without limitation collateral materials, scripts, marketing pieces, screen designs, and any intellectual property remains the property of Principal regardless of whether Principal or Agent directed the development of such material. Principal



may provide such material to Agent and any other agents of Principal on the co ...