Distributor Services Terms

AREA Communications Inc. (“AREA”), on behalf of Rogers Communications Partnership (“Rogers”), hosts and maintains an Accessories Ordering Portal, known as Wireless AREA. The Rogers Sales Channel will access Wireless AREA to order Products.

By creating a Distributor Profile, You accept the terms and conditions of this legal agreement between your organization (“You”, “Your” or “Distributor”) and AREA Communications Inc. (“AREA”) regarding Your use of, and access to, Wireless AREA (“Agreement”).  Wireless AREA is a website portal through which the Distributor offers its Products and the Rogers Sales Channel will order Products for the purpose of reselling them to end users.   This Agreement is not related to other agreements You may have with Rogers.

1 Definitions

1.1 Confidential Information means all information, data and materials (regardless of form) provided, directly or indirectly, by one Party to the other Party that (a) is marked as confidential or proprietary or in a similar fashion at the time of disclosure, or if disclosed orally, is stated to be confidential at the time of disclosure, or (b) that the recipient could reasonably conclude to be confidential to the disclosing Party. Confidential Information includes information that complies with the foregoing criteria concerning a disclosing Party’s Products or services, business, affairs, computer systems, installations or clients, technology, inventions, discoveries, ideas, algorithms, trade secrets, Products plans, designs, costs, prices and names, financial information, marketing plans, customer lists and information, business opportunities, personnel, research, development or know-how.

1.2 Delivery means shipment of the Products to the Delivery Site by the Distributor.

1.3 Distributor Profile means company name, address, telephone numbers, e-mail address, website URL, and any other information reasonably requested by AREA.

1.4 Effective Date means the date You first create a Distributor Profile and are assigned a Distributor code.

1.5 Fulfilled Order means an Order that has been shipped to the Delivery Site in full that does not contain a Discrepancy.

1.6 Order means selection of Products by a Rogers Sales Channel through Wireless AREA.

1.7 Party means AREA or Distributor.

1.8 Rogers Sales Channel means any Rogers or Fido authorized channel.

1.9 Wireless AREA means the portal at www.wirelessarea.ca hosted and maintained by AREA for the Rogers Sales Channel to order Products.

1.10 Products means all items available on Wireless Area.

2 AreA’s responsibilities.  AREA shall:

2.1 remit payment to the Distributor for the Fulfilled Order the earlier of: (i) 2%, 30 / net 45 days following Delivery of a Fulfilled Order; or (ii) direction from Rogers to remit payment for the Fulfilled Order. All fees are exclusive of applicable sales and goods and services taxes. AREA shall be entitled to withhold from all prices and fees payable to Distributor all applicable withholding taxes and to remit the taxes to all applicable taxing authorities as required by law.

2.2 maintain Wireless AREA to permit the Rogers Sales Channel to place Orders; and

2.3 maintain Wireless AREA to permit the Distributors to enter and list Products and fulfill Orders.

3 Distributor catalogue.  The Distributor shall (i) enter and list Products through Wireless AREA, including a description and image of the Products, applicable model, version or part number, pricing, serial numbers, and inventory available for immediate delivery; (ii) update and keep current in a timely manner the Products, pricing and Product descriptions (“Specifications”); and (iii) extend, at a minimum, warranty conditions to the Rogers Sales Channel as provided by the manufacturer.

4 Delivery.  The Distributor shall deliver the Products to the address listed in the Order within 48 hours (“Delivery Site”) after an Order is placed in accordance with industry standard practice.  The Distributor shall pay all costs and expenses arising in connection with the delivery of Products to the Delivery Site. All deliveries shall be DDP by the Distributor.  Further, the Distributor shall notify AREA via Wireless AREA of any delay in Delivery. For non-delivered Product or delayed Delivery, AREA may, in its reasonable discretion, cancel the remainder of the Order and request another party to fulfill the remainder of the Order.

5 Inspection and discrepancies.  The Products shall be subject to inspection and acceptance at the Delivery Site by the store listed in the Order or their agents and any discrepancies in the Specifications, quantity, etc. (“Discrepancy”) will be relayed to Area in a timely manner following Delivery of the Products. If Area is notified of a Discrepancy, Area will inform You about the nature of the Discrepancy for You to correct any shipping errors, shortages, or replace incorrect or damaged Product, The Distributor shall pay all shipping charges for incorrect quantities or Products and defective or non-conforming Products returned.

6 Transfer of Title and Risk of Loss. Title to the Products will pass to the Rogers Sales Channel upon the earlier of (i) payment in full by Area to Distributor for the Fulfilled Order, and (ii) confirmation that the Fulfilled Order does not contain a Discrepancy. Any risk of loss of, or damage to a Product will pass to the Rogers Sales Channel upon the earlier of (i) payment in full by Area for the Fulfilled Order, and (ii) confirmation that the Fulfilled Order does not contain a Discrepancy.

7 Infringement Claims. If the use of any part of the Products is threatened by court action or injunction, the Distributor will, in addition to its own obligations under this Agreement and at its own expense, either: (i) obtain the right to continue offering the Products; or (ii) replace the Products with non-infringing Products or modify the Products to make them non-infringing without materially affecting or altering their functionality.

8 Compliance with Law. Distributor shall comply with: (i) all laws relevant to the performance and execution of its obligations under this Agreement; (ii) all laws relevant to the performance and execution of warranties; and (iii) all federal and provincial laws relating to the packaging, labelling and transportation of Products (including, without limitation, hazardous materials).

9 Indemnification. Distributor shall defend, indemnify and hold harmless AREA, its affiliates, and their respective employees, officers, directors, shareholders and agents from and against any allegations, claims, costs, damages, expenses, actions or proceedings, including legal fees, direct, indirect, third party, special and consequential damages arising out of: (i) any injury to persons (including injuries resulting in death) or loss of or damage to property of others which may be or be alleged to be caused by or suffered as a result of the provision of all or part of the Products; (ii) any encumbrances upon, or in respect of, any materials, parts, works-in-process, combination with other products, or finished Products furnished to, or in respect of which payment has been made by AREA; (iii) any claim that the Products or any part thereof infringes any patent, copyright, trade-mark, trade secret or other intellectual property right or contractual right or obligation; (iv) any breach by Distributor of any of the terms, conditions, warranties and obligations under this Agreement with respect to the Products; (v) any breach of Section 8; (vi) any Products’ liability claim (whether founded in contract or tort) relating to the Products; and (vii) any Discrepancies of an Order that is not caused by Area.

10 Non-Exclusivity. This Agreement in no way limits or prohibits AREA from listing Products from any person authorized by Rogers or from using any party other than Distributor to provide Products.

11 Confidential Information

11.1 You and AREA shall protect each other’s Confidential Information against unauthorized use and dissemination exercising reasonable care. The Confidential Information will be used solely as permitted by this Agreement, and may only be disclosed if required by law or by the order of a court or similar judicial.

11.2 Confidential Information does not include information that: (i) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the receiving Party; (ii) was known and reduced to tangible form by the receiving Party prior to the time of disclosure and is not subject to restriction; (iii) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; (iv) is lawfully obtained from a third Party who has the right to make such disclosure without restriction on disclosure; or (v) is released for publication by the disclosing Party in writing.

11.3 The receiving Party shall return all Confidential Information of the disclosing Party in tangible form upon the written request of the disclosing Party, and the receiving Party shall certify promptly in writing that it has done so. For Confidential Information in electronic form “destroy” means to use reasonable efforts to permanently delete the Confidential Information from information systems so it is not accessible in the ordinary course, however electronic representations of Confidential Information may continue to exist in the other Party’s data system backup tapes, or similar storage media. Confidential Information that is retained or not completely destroyed shall be retained by the other Party in compliance with this Agreement.

12 Limited Warranty And Disclaimer. The Parties represent and warrant that: (i) they shall perform their obligations under this Agreement in good faith and in a professional, careful, efficient, diligent and business-like manner and in accordance with a quality and standard that is consistent with or exceeds the standards of performance for similar services in Canada; and neither of the Parties will take any action to circumvent the other Parties rights under this Agreement.  Except for the express warranties and conditions stated in this Section, the Parties makes no additional warranty or condition, express or implied, statutory or otherwise. All warranties of merchantability, fitness for a particular purpose and non-infringement of third party rights are expressly excluded.

13 Limitation Of Liability.  AREA’s total liability to the Distributor, its officers and employees, for any claim, regardless of the form of action (including actions for breach of contract, negligence, strict liability, rescission and breach of warranty) will not exceed the (i) aggregate amount of Fulfilled Orders pursuant to this Agreement during the 3 month period preceding a claim of damages; or (ii) $1,00,000, whichever is less.  Neither Party shall be liable for any special, indirect, incidental or consequential damages, including loss of revenues and loss of profits, arising out of this Agreement, even if advised of their possibility.  

14 Terms of Use.  Your use of Wireless AREA must comply with the current version of the Terms of Use (“ToU”) available at www.wirelessarea.ca (or other URL designated by AREA). You agree to read and adhere to the ToU. AREA reserves the right to amend the ToU, effective upon posting of the revised ToU at the designated URL or other notice to You. AREA reserves the right to suspend access to Wireless AREA or terminate this Agreement effective upon notice for violating the ToU.  You indemnify AREA for Your breach of the ToU.

15 Updates to this Agreement.  This Agreement may be updated by AREA upon posting of a revised version.  You acknowledge and agree that posting of an update will become binding on You and Your use of Wireless AREA.  If You disagree to the terms of the update, You may contact AREA to terminate Your use of Wireless AREA.  Subject to this, no addition or modification of this Agreement shall be binding on Your or AREA unless agreed in writing and signed by authorized representatives of AREA and Distributor.

16 General Terms

16.1 This Agreement is not assignable by You, except with AREA’s prior written consent. This Agreement shall enure to the benefit of and be binding upon the Parties, their successors and permitted assigns. Non-performance of either Party shall be excused to the extent that performance is rendered impossible by fire, flood, governmental acts or orders or restrictions, war, acts of terrorism, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party (collectively, the “excusable delay”) provided that the Party affected by the excusable delay uses reasonable efforts to mitigate or eliminate the cause of the excusable delay or its effects.  The Party affected by the excusable delay shall promptly notify the unaffected Party of the type of excusable delay and the disability resulting from the excusable delay (“Declaration”). If the excusable delay lasts for more than 60 days from the date of the Declaration, the Party not affected by the excusable delay shall be entitled, without liability to the other Party, to terminate this Agreement by notifying the other Party within 60 days of receiving the Declaration.

16.2 Either Party may cease its participation in this Agreement on 30 days’ notice to the other Party for any reason or no reason.  Notices to AREA shall be given by e-mail to AREA at info@wirelessarea.ca. Notices to the Distributor will be provided by e-mail at the e-mail address in the Distributor Profile.  Notices are deemed given 24 hours after the e-mail is sent. If the e-mail address is invalid, AREA may give You notice by regular mail to the address in the Distributor Profile, in which case You are deemed to have received notice 3 days after the date of mailing.

16.3 Neither Party is an agent, employee, partner, joint venturer or legal representative of the other. Neither Party shall have any obligation, expressed or implied, except as expressly set forth in this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario without giving effect to principles of conflicts of laws.  Legal action arising pursuant to this Agreement shall be filed in the courts of the City of Mississauga and the Parties attorn to the non-exclusive jurisdiction of the courts of the Province of Ontario. The Parties waive any right to a jury trial.  

16.4 Each Party agrees that any breach by one Party of its obligations hereunder concerning the use and protection of the other Party’s Confidential Information may cause irreparable damage to such other Party for which damages will be inadequate.  Each Party agrees that in any request to a court of competent jurisdiction for injunctive or other equitable relief seeking to restrain such breach, it will not object to the remedy or require proof of actual damages or the provision of either a bond or other security.  Any such relief or remedy shall not be exclusive, but shall be in addition to all other available legal or equitable remedies.  

16.5 The headings to the sections of this Agreement are for ease of reference only and shall not affect its interpretation or construction. If any provision of this Agreement is declared void, illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. You and AREA shall use best efforts to replace the invalid or unenforceable provision by a provision that achieves the purposes intended under the invalid or unenforceable provision. No failure of a or delay by You or AREA to exercise any of its powers or rights or to insist upon strict compliance by the other Party with its obligations, and no custom or practice of the Parties at variance with the terms of this Agreement shall constitute a waiver of either Party's right to demand compliance with this Agreement. All waivers must be in writing and signed by the Party waiving its rights. Sections 1, 7, 8, 9, 11, 12, 13 and 16 shall survive termination of this Agreement.  

16.6 This Agreement constitutes the entire agreement and understanding between the Parties with respect to its subject matter, and supersedes all prior discussions, agreements, arrangements, understandings, and undertakings between the Parties. La présente convention est rédigée en anglais à la demande expresse des Parties.