|
<PAGE>
Exhibit 10.10
SALES AGENCY AGREEMENT BETWEEN
SPRINT COMMUNICATIONS COMPANY L.P. AND
AIRGATE PCS, INC.
This Sales Agency Agreement (as amended from time to time,
"Agreement") made as
of May 1, 2001 ("Effective Date"), is between Sprint
Communications Company
L.P., a Delaware limited partnership ("Sprint") and AirGate PCS,
Inc., ("Sales
Agent").
RECITALS
A. Sales Agent desires to act as Sprint's agent for the
marketing and sale of
Sprint's residential wireline voice long distance
telecommunications
services ("Sprint Services") to Customers through Sales Agent's
retail
stores in the United States.
B. Sprint desires to appoint Sales Agent as its limited agent to
promote,
distribute and sell Sprint Services as described in this
Agreement and any
Exhibits, Attachments or Addenda hereto.
TERMS
In consideration of the covenants, terms and conditions of this
Agreement the
parties agree as follows:
1. Defined Terms
1.1. "A-Status Sale" or "A-Status" means a sale of Sprint
Services to a Customer
who passes all Sprint's screening processes and whose Sprint
Service is
activated by Sprint.
1.2. "Customer" means a person who purchases Sprint Services as
a result of a
sale by Sales Agent under this Agreement.
1.3. "Commission" means the commission payable to Sales Agent by
Sprint pursuant
to this Agreement.
1.4. "Market" means a market defined by Sprint for its internal
marketing
purposes, which market generally corresponds to a metropolitan
area rather
than to an individual city or other governing unit.
1.5. "Net Collectible Monthly Revenue" means the total amount
billed to the
customer for monthly recurring charges and monthly usage charges
for Sprint
Services. Net Collectible Monthly Revenue excludes taxes and
surcharges,
special access charges, directory assistance charges, charges
for non-voice
telecommunications services, charges which are subsequently
credited,
volume and other promotional discounts, fraudulently charged
amounts, bad
debt and uncollectibles, write-offs, and amounts Sprint is
required by
governmental or quasi-governmental authorities to collect on
behalf of or
pay to others in support of statutory or regulatory programs.
Examples of
such programs include, but are not limited to, the Universal
Service Fund,
the Primary Interexchange Carrier Charge, and compensation to
payphone
service providers for use of their payphones to access Sprint's
service.
1.6. "Rate Schedules" means Sprint's schedules of rates, terms
and conditions
for Sprint Services.
1.7. "Retail Sales Force" means Sales Agent's employees that are
engaged in
direct sales activities at Sales Agent's retail stores.
1.8. "Sprint Marks" are the trade names, logo, service marks,
brands and other
trademarks of Sprint.
1.9. "Sprint Services" means Sprint's residential wireline voice
long distance
telecommunications services. "Sprint Services" does not include
other
services offered by Sprint, such as data services.
1.10."Tariff' means those tariffs filed by either Party with
state regulatory
commissions for intrastate Service.
1.11."Terms and Conditions of Service" means the terms and
conditions that
govern either Party's interstate Service.
2. Appointment
2.1. Agency. Subject to this Agreement, Sprint appoints Sales
Agent as its agent
for the limited purposes of selling Sprint Services to Customers
through
Sales Agent's Retail Sales Force in the United States. Sales
Agent accepts
the appointment.
2.2. Restriction on Sales Agent Authority. Sales Agent is a
limited agent of
Sprint only for the purposes expressly set out in this
Agreement. Sales
Agent is not authorized to sign any offer, proposal or agreement
on behalf
of Sprint. Sales Agent is authorized to use only its Retail
Sales Force for
the sale of Sprint Services. Sales made by Sales Agent of Sprint
Services
may be made only via a one-on-one consultative basis with the
Customer.
Sales Agent is must use commercially reasonable efforts to
perform its
sales obligations under this Agreement. Sales Agent may not set
up a
multi-level marketing, pyramid promotional scheme or any similar
structure
to sell Sprint Services.
2.3. Compliance. Sales Agent must comply with all procedures,
policies and
operating guidelines on the marketing and sale of Sprint
Services that are
established by Sprint, including procedures required by law or
contract or
policies adopted by Sprint (e.g., advising Customers of the
terms and
conditions of the Sprint Services or pre-approval of marketing
packets).
Sprint will notify Sales Agent in writing a commercially
reasonable time,
but not less than 30 days, in advance of the effective date of
any new or
revised procedures and/or operating guidelines, unless a shorter
time
period is required by law or specified in this Agreement.
2.4. No Contractual Relationship with Retail Sales Force.
2.4.1. General. Notwithstanding Sales Agent's right to use its
Retail Sales
Force to sell Sprint Services, Sprint will deal only with Sales
Agent and
will not deal directly with or have any obligations to any
member of Sales
Agent's Retail Sales Force. Without limiting the generality of
the
foregoing, Sales Agent:
(1) must place all orders for Sprint Services;
(2) coordinate all advertisements and promotional activity under
Sections
4.5 and 4.6; and
(3) is liable for payment of all amounts due Sprint under this
Agreement.
2.4.2. Independent Contractor. Sales Agent is an independent
contractor with no
authority to act for or on behalf of Sprint, except as expressly
granted
herein. Sales Agent may not use agents or third party vendors
or
representatives to solicit Customers for Sprint without Sprint's
prior
consent. Sales Agent has no authority to bind Sprint in any
manner
whatsoever except as authorized by Sprint. Sprint has no
obligation to
employees or agents utilized by Sales Agent to attract Customers
to Sprint.
Such individuals are at all times employees or agents of Sales
Agent. Sales
Agent is solely responsible for all expenses and obligations
incurred by it
as a result of its efforts to solicit Customers for Sprint,
unless
otherwise agreed to in advance by the Parties. Sales Agent
agrees to comply
with laws, regulations and orders relating to equal employment
opportunity,
workers' compensation, unemployment compensation and FICA.
2.4.3. Methods of Operations. Sales Agent, its subcontractors,
employees and
agents, are independent contractors for all purposes and at all
times.
Sales Agent is responsible for control over the methods and
details of
performing the services described in this Agreement, subject to
Sprint's
inspection. Sales Agent is also solely responsible for providing
all tools,
material, training, hiring, supervision, hours of work,
employment policies
and procedures, work rules, compensation, discipline, and
termination of
employment for Sales Agent's employees.
2.4.4. Wages and Payroll Taxes. Sales Agent is solely
responsible for payment of
wages, salaries, fringe benefits and other compensation of, or
claimed by,
its employees including, without limitation, contributions to
any employee
benefit, medical or savings plan and is responsible for all
payroll taxes
including, without limitation, the withholding and payment of
all federal,
state and local income taxes, FICA, unemployment taxes and all
other
payroll taxes.
2.4.5. Sprint's Right to Reject. Sprint has the right, in its
sole discretion,
to reject any individual as a member of Sales Agent's Retail
Sales Force.
If Sprint rejects an individual as a member of the Sales Agent's
Retail
Sales Force, Sales Agent must insure that that individual does
not sell
Sprint Services. Sprint has the further right to notify Sales
Agent in
writing and require that Sales Agent insure that that individual
is no
longer selling Sprint Services from and after the date of
notice. Sprint
does not have to pay Commissions to Sales Agent for sales of
Sprint
Services made by any (i) individual whom Sprint has rejected as
a member of
the Retail Sales Force, or (ii) individual whom Sprint has
notified Sales
agent can no longer sell Sprint Services.
2.4.6. Sales Agent Representations, Warranties and Covenants
with Respect to
Retail Sales Force. Sales Agent represents, warrants and
covenants to
Sprint as follows:
(1) Sales Agent is responsible for the acts or omissions of each
member of
the Retail Sales Force;
(2) no one other than the members of the Retail Sales Force may
sell
Sprint Services;
(3) each member of the Retail Sales Force will comply with the
applicable
provisions of this Agreement, including the confidentiality
provisions
(Section 7) and the sales and marketing provisions (Section 4);
and
(4) each member of the Retail Sales Force has a confidentiality
obligation
to Sales Agent at least as restrictive as Sales Agent's
confidentiality obligations to Sprint under this Agreement.
2.5. No Sale to Resellers. Sales Agent will require that the
Retail Sales Force
sell Sprint Services to Customers only. Sales Agent acknowledges
that one
of Sprint' primary reasons for selecting Sales Agent as a sales
agent for
the Sprint Services is to assure a broad distribution of Sprint
Services to
Customers. Sales Agent agrees that it will not knowingly,
directly or
indirectly, sell, or permit the Retail Sales Force to sell,
Sprint Services
to a reseller of telecommunications services or to anyone that
is
purchasing the Sprint Services for the purpose of reselling
them. Sales
Agent will take and require its Retail Sales Force to take
reasonable
efforts to determine if a volume purchaser is a reseller of
telecommunications services.
3. Term
The term of this Agreement is 1 year from the Effective Date,
unless sooner
terminated as permitted in this Agreement. This Agreement
automatically
renews for consecutive 1 year periods on each anniversary date
of the
Effective Date, unless either party gives the other party
written notice of
non-renewal at least 30 days before the anniversary date.
4. Sale of Sprint Services
4.1. Commissions. Except as otherwise provided in Exhibit A
attached to this
Agreement, Sprint will pay Sales Agent a Commission as described
in Exhibit
A (Commissions) on or before the last day of the month following
the month
in which a sale of Sprint Services by Sales Agent becomes
A-Status. Any
Commission paid is subject to charge back as provided in Exhibit
A. Sprint
will pay Sales Agent Commissions only for sales of Sprint
Services made
while this Agreement is in effect. Sales Agent must not rebate,
split or
otherwise share any Commissions Sales Agent is paid with respect
to the
sale of Sprint Services with any Customer obtaining a Sprint
Service
without Sprint's prior written consent.
4.2. Sales Activity.
4.2.1. Authorization to Sell Sprint Services. Sprint authorizes
Sales Agent to
sell Sprint Services in the retail stores described in Exhibit B
and any
other mutually agreed-upon Sales Agent retail stores. Sales
Agent may not
modify, amend, waive, cancel or otherwise change any Sprint
Services
offering. Sprint reserves the right, in its sole discretion, to:
(a) add or
delete individual service offerings or Sprint Services from
those that the
Sales Agent is authorized to sell; or (b) change the Rate
Schedules, Terms
and Conditions of Service or Tariffs for any Sprint Services or
individual
service offerings that Sales Agent is authorized to sell. Any
changes to
the Sprint Services that Sales Agent may sell are effective as
soon as
Sprint gives notice of the change to Sales Agent, except that
non- material
changes to Sprint's Rate Schedules, Terms and Conditions of
Service or
Tariffs are effective immediately when made. Sprint is not
obligated to
make all of its service offerings available for sale by Sales
Agent;
rather, Sprint can make as limited a set of service offerings as
Sprint may
choose, in its sole discretion, available to Sales Agent.
4.2.2. Marketing and Sale of Sprint Services.
(1) Sales Agent must provide a one-on-one, consultative sales
experience
for the Customer to ensure the Customer's understanding of the
nature
of the Sprint Service purchased and the terms of the Sprint
Service
selected by the Customer.
(2) Sales Agent must complete and deliver to Sprint all orders
for Sprint
Services obtained by the Sales Agent. Sprint will conduct its
standard
credit check on the proposed Customer.
(a) If the Customer qualifies for the Sprint Service for which
the
credit check was run, is otherwise a Customer to whom Sprint
is
willing to provide the Sprint Service, and the order is
complete,
legible and accurate, Sprint will provide Sprint Service to
the
Customer.
(b) If the Customer does not qualify for the Sprint Service for
which
the credit check was run, Sales Agent or Sprint will notify
the
Customer directly and Sales Agent or Sprint may offer the
Customer an alternative Sprint Service for which the
Customer
qualifies. If Sprint provides the Customer an alternative
Sprint
Service, Sales Agent will earn Commission for that Sprint
Service
when the sale of that Sprint Service becomes A-Status if the
requirements of Section 4.1 and Exhibit A are met.
4.2.3. Order Acceptance and Cancellation. Orders for Sprint
Services submitted
by Sales Agent are not binding until accepted by Sprint. Sprint
may, in its
sole discretion, reject any order solicited or taken by Sales
Agent if the
order fails to pass any of Sprint's screening processes.
4.2.4. Customers. All Customers purchasing Sprint Services
through the efforts
of Sales Agent are Customers of Sprint. Sales Agent must comply
with all
Sprint procedures regarding activation, care and dealing with
Sprint's
Customers. Sales Agent will not impose any activation or other
fees,
standards, sales conditions, or contracts not written by Sprint
on any
Customer. Sales Agent is not authorized to bill or collect any
moneys from
Customers on behalf of Sprint.
4.3. Training. Sprint will provide all training (trainers and
training
materials, initial and continuing) for the Retail Sales Force
trainers
regarding the features and functionality of Sprint Services.
Sales Agent
must provide the place for this training and make the trainers
of the
Retail Sales Force available. Sales Agent and Sprint will use
commercially
reasonable efforts to coordinate and plan all training sessions.
Sales
Agent must have each member of the Retail Sales Force receive a
sufficient
amount of training from Sprint in order to provide a
professional,
one-on-one consultative sales experience to Customers. If
Sprint
establishes a training program designed to provide a Sprint
certification
of Sales Agent as a trainer, Sales Agent will obtain the
appropriate
certification, as determined by Sprint, within 90 days of Sprint
notifying
Sales Agent of the establishment of the certification
program.
4.4. Liability for Sprint Services Procured by Fraud or
Misrepresentation. Sales
Agent is liable to Sprint for all uncollected amounts billed to
any
Customer purchasing a Sprint Service through Sales Agent's
efforts for
Sprint Services that are procured by or through fraud or
fraudulent means
of Sales Agent or its Retail Sales Force or if Sales Agent or
any member of
its Retail Sales Forces fails to follow Sprint procedures,
policies and
operating guidelines on the marketing and sale of Sprint
Services in any
material respect in accordance with Section 2.3.
4.5. Advertising and Marketing. Sales Agent will actively
promote and market the
Sprint Services in accordance with the standards set from time
to time by
Sprint. Sprint will develop and design all advertising,
marketing and
promotional plans and sales collateral (collectively,
"Marketing
Materials") to be used in Sales Agent's retail stores and will
pay for such
development and design costs. Sales Agent may not use any
Marketing
Materials not provided by Sprint, and may not modify any
Sprint-provided
Marketing Materials, without Sprint's prior written consent.
Sales Agent
will pay for the inventory of Marketing Materials that are used
in its
retail stores.
4.6. Internet Advertising; No Internet Sales. Sales Agent may
advertise the
Sprint Services or tell Customers how to reach Sales Agent on
Sales Agent's
Internet website. Any Internet advertising must receive Sprint's
prior
written approval. Sales Agent may not use unsolicited commercial
electronic
or "spam" messages to advertise or sell the Sprint Services.
Sales Agent
may not sell Sprint Services via the Internet.
5. Limitation of Liability
NEITHER PARTY IS LIABLE TO THE OTHER FOR SPECIAL, INDIRECT,
INCIDENTAL,
EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR LOSS OF
PROFITS, ARISING FROM
THE RELATIONSHIP OF THE PARTIES OR THE CONDUCT OF BUSINESS
UNDER, OR BREACH OF
THIS AGREEMENT, EXCEPT WHERE SUCH DAMAGES OR LOSS OF PROFITS ARE
CLAIMED BY OR
AWARDED TO A THIRD PARTY IN A CLAIM OR ACTION AGAINST WHICH ONE
PARTY TO THIS
AGREEMENT HAS A SPECIFIC OBLIGATION TO INDEMNIFY THE OTHER.
6. Termination of Agreement
6.1. Events of Termination
6.1.1. Either party may terminate this Agreement for its
convenience upon 30
days written notice to the other party.
6.1.2. Sprint may term
| 
