Exhibit 10.5
Form SB-2
Skypath Networks, Inc.
RESELLER AGREEMENT FOR MESSAGING SERVICES
THIS RESELLER AGREEMENT FOR MESSAGING SERVICES (the "Agreement") is entered
into as of December 20, 2002 ("Effective Date"), between Skypath Networks, Inc.,
a Delaware corporation, with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ ("Reseller") and Motient Communications Inc.,
("Motient") a Delaware corporation, and a wholly-owned subsidiary of Motient
Corporation, with offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇-▇▇▇▇.
WHEREAS, Motient is engaged in providing shared radio-based data
communications network services as authorized by the U.S. Federal Communications
Commission; and
WHEREAS, Reseller currently provides certain value added services in the
wireless communications marketplace; and
WHEREAS, Motient and Reseller desire a non-exclusive relationship to pursue
opportunities within the marketplace; and
NOW THEREFORE, in consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. DEFINITIONS - For purposes of this Agreement:
(a) "FCC" shall mean the United States Federal Communications Commission.
(b) "Initial Term" shall mean the period commencing on the date hereof and
ending thirty-six (36) months thereafter.
(c) "Prices" shall mean Motient prices, as set forth in Attachment A and
Attachment D.
(d) "Service" or "Services" means Motient's shared radio-based data
communications network services which enable a user to access and communicate
wirelessly with various third party supplied information sources, or with
certain subscribers using the MotientSM wireless terrestrial network. The
Services include but are not limited to Motient's eLinkSM wireless email
services and eLink EnterpriseSM wireless email service. The Service includes the
use of the Motient message switches and related network software when accessed
by user procured terminals and compatible software.
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(e) "Territory" shall mean the United States and any other countries or
jurisdictions where the Services are provided by Motient in accordance with
applicable legal and regulatory requirements.
2. SCOPE OF AGREEMENT
Motient hereby agrees to establish a non-exclusive marketing relationship with
Reseller as follows:
(a) Motient hereby licenses Reseller to be a non-exclusive remarketer of the
Services within the Territory. In connection with its performance hereunder,
Reseller may enter into agreements with subagents as set forth in section 3(d)
of this Agreement. Reseller acknowledges that Motient reserves the right to
market and provide the Service directly to end-users and to license other
resellers within the Territory. Reseller agrees that it will not market the
Services to current customers of Motient. During the term of this Agreement and
for a period of one (1) year after termination of this Agreement (whether
voluntary or involuntary, with or without cause) Reseller, including its
officers, or employees, and successors, shall at no time request any Motient
customers of the Service and/or Reseller customers of the Service, to curtail or
cancel, or otherwise to solicit, divert, or attempt to divert, any such customer
from utilizing the Service.
(b) Reseller shall develop and implement a non-exclusive marketing plan to
facilitate its remarketing of the Services. Such marketing plan may include,
without limitation:
(i) joint development of product literature describing the Services and
their capabilities;
(ii) joint attendance at trade shows, conferences and related events within
the marketplace;
(iii) joint presentations to prospective clients of the Services;
(iv) joint press releases, advertising and participation at the Motient
booth at certain trade shows;
(v) joint marketing projections for the Services;
(vi) joint development activities with data terminal vendors; and
(vii) previews of Motient's future technology and business plan.
(c) Each party (a "Licensee") may use the trademarks and service marks (the
"Marks") of the other party subject to the prior approval of and in accordance
with the usage guidelines established and as may be revised from time to time by
the owner of such Marks. Licensee may provide a sublicense to its authorized
subagents to use the other party's Marks provided that such sublicense is no
less restrictive than the provisions of this Agreement relating to the use of
such Marks and Licensee shall be liable for its subagent's use of the Marks of
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the other party. Licensee's and its subagent's use of the Marks shall inure to
the benefit of the owner of such Marks and each party shall at all times retain
full ownership, right, title, and interest in and to its respective Marks.
(d) Reseller and Motient agree not to publish or use advertising, sales
promotions or any publicity matters, including the mention of the existence of
this Agreement, without the prior written consent of the other party, which
consent will not be unreasonably withheld.
3. RESELLER MARKETING AND DEVELOPMENT OBLIGATIONS
(a) Reseller shall be responsible for ensuring that all end user customers to
whom it remarkets the Services are, if required by applicable law or regulation,
licensed by the FCC prior to use of the Services. Motient shall, however,
provide commercially reasonable levels of administrative and consultative
support to Reseller to facilitate the licensing process.
(b) During the Initial Term of this Agreement, Reseller will use commercially
reasonable efforts to meet the performance milestones set forth in Attachment A
- Pricing and Performance Milestones within the timeframes indicated in
Attachment A. If Reseller fails to meet the performance milestones on the dates
indicated, Motient reserves the right to terminate this agreement or increase
the prices for the Service to a level commensurate with Reseller's actual volume
and Reseller agrees to pay such increased rates for the Service. If Motient
elects to increase the price for Service as set forth in this Section 3(b), the
price increase will apply only to new customers activated after the date Motient
increases the price for Service.
The foregoing milestones are in addition to Reseller's firm commitment to
purchase from Motient, subject to availability in Motient's inventory, the
minimum number of mobile terminal devices as set forth in Attachment D of this
Agreement.
(c) In addition to the Reseller responsibilities set forth in Attachment B,
Reseller agrees to perform the following at its own expense:
(i) Provide its own internet domain for E-mail connectivity;
(ii) perform end user registration via the reseller registration process
established on the Motient Internet website;
(iii) promptly provide Motient with the following information for with end
user customer of Reseller: PIN number; LLI number; and Internet mail
address.
(d) In the performance of its rights and obligations under this Agreement,
Reseller may at its option enter into agreements with subagents subject to the
following:
(i) Subagents shall be subject to all applicable provisions of this
Agreement, and Reseller shall be responsible for the acts or omissions of
subagents relative to the Service and data terminals and shall ensure that
subagents' actions are in compliance with the terms and conditions of this
Agreement;
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(ii) Reseller shall provide Motient upon request with any further
information regarding a subagent that Motient reasonably deems necessary to
permit Motient to assure itself that the provisions of this section 3(d)
are being met;
(iii) Actions by any subagent which result in a breach by Reseller shall
not be deemed to be beyond the reasonable control of Reseller;
(iv) Reseller's payment arrangements with subagents shall be the sole
responsibility of Reseller, and Motient shall have no responsibility or
obligation to compensate subagents; and
(v) Motient reserves the right to request that Reseller terminate a
subagent's right to market or promote the Service or sell or service data
terminals, who has violated the provisions of items (i), (ii), and/or (iii)
of this paragraph 3(d).
4. PRICING
Reseller will pay Motient for the Services as set forth in Attachment A, and for
the data terminal devices as set forth in Attachment D.
5. BILLING AND PAYMENTS
(a) Reseller will be responsible for billing to and collection from its end user
customers (including subagents, if any) for all products and Services. Reseller
shall make payment to Motient for all Services and products purchased hereunder,
regardless of whether it receives payment from its subagents and/or end user
customers.
(b) Within ten (10) days after the end of the monthly billing period, Motient
will provide Reseller with an invoice for the previous month's Service and
network usage information, in the format Motient generally provides to all of
its resellers, to enable Reseller's to invoice its end user customers.
(c) Reseller will pay Motient's invoices within 30 days after the date of such
invoice. Motient reserves the right to charge, and Reseller agrees to pay, a
late charge on any undisputed amount unpaid on or after the due date, and on any
other outstanding balance, equal to the maximum amount allowed by applicable
law.
(d) Creditworthiness: Motient reserves the right to satisfy itself as to
Reseller's continuing creditworthiness. All decisions with respect to Reseller's
creditworthiness and the amount of a deposit, advance payment, or letter of
credit required under this Agreement shall be made in Motient's sole discretion,
based on Motient's then-current policies for Reseller's generally, and on the
amount of Reseller's then-current financial obligation under this Agreement.
(e) Security Deposit: Based on Motient's assessment of Reseller's
creditworthiness and financial standing, Motient may require Reseller to provide
Motient with a Security Deposit on the Commencement Date, in an amount
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determined by Motient in light of the size of the Commitment and Motient's
assessment of Reseller's creditworthiness and financial standing, but no more
than one percent (1%) of the Commitment. Motient will retain the Security
Deposit as security for Reseller's prompt payment of amounts due under this
Agreement and reserves the right to apply the Security Deposit against any
amounts not paid to Motient within 30 days after the due date. In such an event,
Motient reserves the right to require Reseller to, and Reseller promptly shall,
restore the Security Deposit to its original amount or to increase the amount of
the Security Deposit to an amount reasonably related to the amounts due under
this Agreement and Motient's determination of Reseller's creditworthiness.
(f) Letter of credit.
(1) Amount of letter of credit: Subject to the consent of Motient, which
shall not unreasonably be withheld, Reseller may, in lieu of the Security
Deposit required under paragraph (b) of this section 2.4. deliver to Motient an
irrevocable letter of credit in an amount equal to twenty five percent (25%) of
the amounts due for the first year of the Initial Term. Reseller shall maintain
such letter of credit in accordance with the terms hereof for the duration of
the first year of the Initial Term. Thereafter, Reseller shall, upon request by
Motient, maintain the Letter of Credit in an amount equal to twenty five percent
(25%) of the total annual charges for the Service for the then-current year.
Motient shall be entitled to draw upon the letter of credit to pay any amounts
not paid by Reseller within 60 days after the due date. All amounts so drawn
shall be credited against Reseller's unpaid obligations under this Agreement.
(2) Form and content: All letters of credit delivered to Motient by
Reseller (i) shall be in form and substance, and from issuers, acceptable to
Motient in Motient's reasonable judgment; (ii) shall provide specifically that
the only requirement for a draw thereunder shall be presentation of a sight
draft certifying that the amount drawn thereunder is due and owing pursuant to
the terms of this Agreement and has not been paid within 60 days after the due
date; (iii) shall have a maturity date of not less than one (1) year; (iv) shall
be extended not later than 60 days prior to the expiration thereof; and (v)
shall be reinstated in their full amounts within five (5) business days after
any draw by Motient thereunder.
(3) Failure to extend, renew, or replace: If Reseller (i) fails to extend,
renew or replace a letter of credit on or before 60 days prior to its maturity,
(ii) fails to obtain and deliver to Motient a replacement letter of credit
within fifteen (15) days after Motient delivers notice to Reseller that it is no
longer satisfied with the strength and soundness of the issuing bank, or (iii)
fails to timely reinstate a letter of credit in full following any draw thereon,
or if Motient terminates this Agreement in accordance with the provisions of
section 4.1 or 4.2 of this Agreement, Motient shall be entitled to draw the full
amount of such letter of credit at any time thereafter.
(g) Taxes. All charges payable under this Agreement are exclusive of applicable
taxes, assessments, surcharges, levies, or similar items assessed by a
governmental body, including but not limited to charges for Universal Service
Fund maintained by the FCC ("Applicable Taxes"). Reseller is liable for and will
indemnify Motient from and against, all Applicable Taxes with respect to
Motient's provision of the Service to Reseller or relating to Reseller's use or
resale of the Service or must provide Motient with a tax exemption certificate.
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6. ORDERING
(a) Reseller shall order data terminals from Motient, as set forth in Attachment
D (data terminals may also be referred to as "hardware"), for its end user
customers Reseller may order data terminals from Motient using Reseller's form
of purchase order and the parties agree that Reseller's purchase order or other
acceptance is expressly limited to the terms of this Agreement and Motient
objects to any additional or different terms in Reseller's purchase order or
acceptance; and any additional or different terms in the purchase order or
acceptance shall be of no effect.
(b) Reseller shall order the Services for each new end user customer
electronically as mutually agreed. Motient shall process all such orders within
a reasonable period after receipt of order.
7. RESTRICTIONS ON USE
Reseller acknowledges that Motient reserves the right to deny service to any
Reseller end user should the Service be used other than as intended, as
reasonably determined by Motient (e.g., without limitation, the Service is not
intended for data streaming or file transfer).
8. TERM AND TERMINATION
(a) This Agreement shall have an Initial Term of thirty-six (36) months and
shall automatically continue after the Initial Term for additional twelve (12)
month renewal terms until terminated by either Reseller or Motient upon six (6)
months' advance written notice to the other party.
(b) Notwithstanding anything to the contrary contained herein, if a party (the
"breaching party") (i) commits a material breach of its obligations under this
Agreement; or (ii) dissolves or commits an act of bankruptcy or becomes
insolvent, the other party may provide to the breaching party written notice of
termination of this Agreement, which includes a description of the nature of the
breach. If the breaching party does not cure the breach within 30 days following
the date of such notice, this Agreement shall terminate at the end of the 30-day
notice period. Reseller failure to make any payment of any sum due under this
Agreement shall be deemed a material breach and subject to this section 8(b).
Notwithstanding the foregoing, this Agreement shall terminate immediately with
no further liability of Motient to Reseller or its end users if the FCC
authorization held by Motient is revoked by the FCC.
(c) In the event of default by Reseller as set forth in this section 8, Motient
shall have the right to immediately terminate this Agreement, retain all
payments made hereunder, and deny Reseller, and its customer's access to the
Services provided under this Agreement. Each and all of the rights and remedies
of Motient hereunder are cumulative to and not in lieu of each and every other
such right and remedy. Failure or delay on the part of Motient or Reseller to
exercise any right, remedy, power or privilege hereunder shall not operate as a
waiver thereof. A waiver, to be effective, must be in writing and signed by the
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party making the waiver. A written waiver of a default shall not operate as a
waiver of any other default or of the same type default on a future occasion.
(d) Reseller shall pay Motient a $25.00 (twenty-five dollars) charge per unit
for reactivation of Service, which has either been suspended or previously
terminated.
9. RESELLER RESPONSIBILITIES:
(a) Reseller shall not misrepresent the Services to its customers or otherwise
make any claims, representations or warranties regarding the Services other than
as expressly authorized by Motient. Reseller acknowledges and agrees to inform
its end user customers that:
- 100% radio coverage for any on-street or in-building area at all times is
improbable, even within coverage areas on Motient's radio frequency
coverage maps;
- radio frequency coverage maps, if provided, are intended to indicate
expected coverage and are not binding as an exact representation of
coverage;
- uninterrupted or error-free operation of the Services is virtually
unobtainable; and
- occasionally network availability will be lost, and that Motient (or
Reseller) cannot be responsible for transmission errors, for corruption of
data, or for the security of data during transmission via public
telecommunications facilities.
(b) Reseller will also inform its end user customers that the end user customer
should assess the effect such potential problems will have on their operation
and develop, implement and/or maintain procedures, external to the MotientSM
network, to safeguard their programs and data and to establish procedures for
the backup and reconstruction of lost data and programs adequate for their
protection. Reseller will also inform its end user customers that in using the
Service, they are required to (a) observe and abide by all applicable statutes,
laws, ordinances, rules and regulations including, but not limited to, those of
the FCC; (b) use the MotientSM network and the Service on a shared basis with
other end user customers so as not to cause undue interference with any other
end user customer using the Service; and (c) use the Motient network and the
Service in accordance with Motient's policies and rules of use, as may be
amended from time to time by Motient.
(c) Reseller will enter into an agreement with eLink Enterprise end users that
is no less restrictive than the terms and conditions contained in Attachment E.
10. RESELLER PROGRAM AND DATA SECURITY
Motient shall use commercially reasonable security procedures to protect the
programs and data of Reseller, which come into Motient's custody under this
Agreement. Reseller shall use commercially reasonable security procedures to
protect the programs and data of Motient, which come into Reseller's custody
under this Agreement.
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11. FORCE MAJEURE
Motient and its subcontractors do not assume and shall have no liability under
this Agreement for failure to provide, or delay in providing the Service
resulting directly or indirectly from causes beyond the control of Motient or
its subcontractors including, but not restricted to, acts of God, or
governmental entities, or of the public enemy, strikes, or unusually severe
weather conditions.
12. TRAINING AND TECHNICAL SUPPORT
(a) Motient shall make available to Reseller, at no charge, a commercially
reasonable level of initial training on the use of Motient Services.
(b) Motient shall continue to provide Reseller, at no charge, with technical
assistance in connection with the ongoing use of the Services by Reseller and
its end user customers. Such assistance shall include, without limitation,
telephone consultation, updates relating to changes and enhancements to the
Services and diagnostic services.
13. THIRD PARTY LIABILITY AND INDEMNIFICATION
Reseller warrants that it will inform its end user customers and others to whom
it remarkets the Services, including to subagents, if any, (x) of the applicable
terms and conditions of this Agreement, as expressed in Attachment C hereof, and
(y) of the Motient's applicable policies and rules of use of the Service, as may
be amended and revised by Motient from time to time. Reseller further warrants
that it will indemnify Motient against any liability, including reasonable
attorney's fees, to any third party resulting from the actions or inactions of
Reseller except to the extent caused by Motient. In addition, each party (the
"Indemnifying Party") shall defend, indemnify, and hold the other party (the
"Indemnified Party") harmless from and against any and all liabilities, losses,
damages and costs, including reasonable attorney's fees, resulting from, arising
out of, or in any way connected with (i) any breach by the Indemnifying Party of
any warranty, representation, agreement, or obligation contained herein, (ii)
the performance of Indemnifying Party's duties and obligations hereunder; and
(iii) the violation by Indemnifying Party of any federal, state or local law,
rule or regulation.
14. CONFIDENTIAL INFORMATION
(a) Each party agrees that it will not disclose the other's confidential
information and trade secrets, including but not limited to data, software,
documentation, client names and addresses, and all other proprietary
information, to persons other than its employees and subcontractors who are
required to have such information for the furtherance of the purposes of this
Agreement, provided that such employees and subcontractors must be bound by an
obligation of confidentiality that is no less restrictive than that contained in
this Agreement. Each party shall take all steps reasonably necessary to protect
the confidential information of the other party from unauthorized disclosure.
This obligation of confidentiality shall survive the termination of this
Agreement. This Agreement, including but not limited to reseller pricing
information contained in Attachments A and D, is the confidential information of
Motient.
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(b) Nothing in this Agreement shall cause either party to have any rights or
licenses in any inventions, patents, trade secrets, trademarks and/or copyrights
of the other relating to the subject matter of this Agreement.
15. INDEPENDENT RELATIONSHIP
Reseller and Motient specifically disclaim any partnership relationship, and
this Agreement shall in no way be construed to make Reseller and Motient
partners or members of a joint venture. For the purposes of this Agreement,
Reseller and Motient shall be deemed to be independent contractors. Furthermore,
in the event Reseller elects to sell the Services to the United States
government, a state, local or non-United States government, or to a contractor
selling to any of the foregoing government entities, Reseller does so at its own
option and risk and agrees that Motient shall have no obligation as a
subcontractor or otherwise to such government customers. Reseller remains solely
and exclusively responsible for compliance with all statutes, regulations, and
clauses governing sales to any such government customer. Motient makes no
representations, certifications, or warranties whatsoever with respect to the
ability of its goods, or services, or prices to satisfy any such statutes,
regulations, or clauses.
16. WARRANTIES
Motient warrants that its network is in good working order on the date of the
Agreement and conforms to Motient's officially published and publicly available
performance information. Motient will provide preventative and remedial service
to keep its network in, or to restore it to, good working order. Motient does
not warrant that the Service will be uninterrupted or that its operation will be
error-free.
17. DISCLAIMER
THE FOREGOING WARRANTIES ARE IN PLACE OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
18. EXCLUSIVE REMEDY
In the event of any failure or delay in it's provision of the Services that is
attributable to the fault of Motient or its subcontractors, or for breach of
warranty, Reseller's sole remedy shall be limited to a refund of Reseller's
charges for the affected Services during the time of such failure or delay.
19. LIMITATION OF LIABILITY
(a) Neither party shall be liable for special, incidental, indirect or
consequential damages under this Agreement, even if such party has been advised
of the possibility of such damages.
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(b) Except for Reseller's obligation to pay amounts owing under this Agreement
and Motient's obligation to refund Reseller's charges for affected Services
during the time of any failure or delay, Reseller's and Motient's total
liability for any other claim arising out of or in any way connected with this
Agreement and the sole remedy regardless of the form of action (whether in
contract, tort or otherwise) shall be actual, proven damages not to exceed fifty
thousand ($50,000) dollars U.S. This section shall not apply to breaches of the
confidentiality provisions.
20. NOTICES
All notices, demands, offers, elections, requests or other communications
required or permitted by this Agreement shall be in writing and shall be sent by
prepaid registered or certified mail, return receipt requested, and addressed to
the parties at the addresses set forth below or to such other address as shall,
from time to time, be supplied by any party to the other party by like notice,
and shall be deemed given upon receipt. All such notices shall be addressed to
persons listed below:
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If to Motient: If to Reseller:
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Senior Vice President, Sales
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Motient Communications Inc.
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Telephone: 847 / ▇▇▇-▇▇▇▇ Telephone:
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Fax: 847 / ▇▇▇-▇▇▇▇ Fax:
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Copy to: Copy to:
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Senior Vice President and General
Counsel
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Motient Communications Inc.
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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21. GENERAL
This Agreement shall be binding on the successors and permitted assigns of the
parties hereto. Neither party shall assign this Agreement without the other
party's prior written consent, provided that either party may assign this
Agreement to an affiliate, or to an entity that is a parent or subsidiary
organization without the other party's consent but shall provide sixty days'
advance notice of such permitted assignment.
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If any provision of this Agreement or the application thereof to any party or
circumstance shall be determined by any court of competent jurisdiction to be
invalid and unenforceable to any extent, the remainder of this Agreement or the
application of such provision to such person or circumstance, other than those
as to which it is so determined invalid or unenforceable, shall not be affected
thereby, and each provision hereof shall be valid and shall be enforced to the
fullest extent permitted by law.
Neither party may bring an action, regardless of form, arising out of this
Agreement more than one year after the cause of action has arisen.
The provisions of this Agreement, which by their nature are intended to remain
in effect after the expiration or termination of this Agreement, including but
not limited to the provisions regarding payment for Services and taxes in
section 5, section 13, section 14, section 15, section 17, section 19, and this
paragraph regarding survival of Agreement provisions in this section 21, shall
survive the termination or expiration of this Agreement for any reason.
The headings in this Agreement are solely for convenience of reference and shall
not affect its interpretation.
THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL
BE CONSTRUED IN ACCORDANCE WITH AND SHALL BE GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF VIRGINIA, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF
LAWS THEREOF. THE PARTIES AGREE THAT ANY AND ALL CAUSES OF ACTION, WHETHER OR
NOT ARISING UNDER THIS AGREEMENT, BETWEEN THE PARTIES SHALL BE BROUGHT
EXCLUSIVELY IN THE CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA, OR IN THE U.S.
DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA.
This Agreement, including Attachments A, B, C, D, and E, each of which is hereby
incorporated by reference, is the entire agreement between the parties with
respect to the subject matter hereof, and no alteration, modification or
interpretation hereof shall be binding unless in writing signed by both parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first written above.
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MOTIENT COMMUNICATIONS INC. SKYPATH NETWORKS INC.
/s/ /s/
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Signature Signature
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ATTACHMENT A
Reseller Performance Milestones and Pricing
Performance Milestones
During the Initial Term of this Agreement, Reseller will use commercially
reasonable efforts to meet the performance milestones set forth below within the
timeframes indicated.
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Number of Months After the Effective Date 12 24 36
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Cumulative Number of Reseller Subscribers 10,000 20,000 30,000
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Pricing for Service Based on Annual Volumes
Unlimited Plan*
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Quantity Monthly Wholesale Airtime
Base Price Per Device
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Tier 1 1,000 - 4,999 Subscribers $45.00
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Tier 2 5,000 - 24,999 Subscribers $40.00
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Tier 3 25,000 and greater $35.00
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* Unlimited Plan is based on eLinkSM usage profile of 300KB for email messages
per subscriber per month. If average monthly usage per subscriber is
significantly more or less than this usage profile, Motient reserves the right
to revise the base price for the Service based on actual average usage. Base
price for Service does not include add-on services such as BlackBerry by Motient
and Go America services or other additional service fees. To the extent it is
authorized to do so, Motient will offer these services to Reseller at Motient's
cost.
Options:
Reseller may reduce the Monthly Wholesale Airtime Base Price Per Device by the
amounts shown below by performing one or more of the following:
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▇▇▇▇ Customer / Collections -$4.00
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Hardware Fulfillment:
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End User Fulfillment -$2.00
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Private Labeling -$1.00
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Customer Care (Level One) -$1.00
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Operator Assisted Messaging -$1.00
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Branding -$1.00
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Total -$10.00
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Faxing: $0.50 / page
Motient will provide the Service to Reseller during the Initial Term of the
Agreement at the Monthly Wholesale Airtime Base Price Per Device of $35.00 (Tier
3 above) ($25.00 if Reseller performs all of the Options listed above)
regardless of the actual number of Subscribers. At the expiration of the Initial
Term, if Reseller has not activated a cumulative total number of Subscribers as
set forth in the Performance Milestones section above, Motient reserves the
right to increase the Monthly Wholesale Airtime Base Price Per Device for all
Subscribers activated after Motient provides notice to Reseller of Motient's
intent to increase the Monthly Wholesale Airtime Base Price Per Device. Motient
may increase the Base Price to the price associated with the tier corresponding
to the actual number of Subscribers.
Limited Usage Plan (includes up to 150,000 characters per month per device)
Monthly Wholesale Airtime Base Price Per Device: $12.50 plus $0.20 per kilobyte
per Subscriber for usage above 150,000 characters per month on a particular
device).
Network Registration Fee: One time fee of $9.95 per device (waived for the first
12 months of the Agreement and thereafter for bulk registration of wireless
handheld devices in excess of 5,000 devices). The Network Registration Fee
applies to both the Unlimited Plan and Limited Usage Plan.
Special Provision. Reseller may designate up to 25 Devices as demonstration
devices ("Demo Devices") to be used for demonstrating the Service to customer
prospects. Reseller shall pay a Monthly Fee of $15.00 per Demo Device for the
Service under the Unlimited Plan.
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ATTACHMENT B
RESELLER
RESPONSIBILITIES
================================================================================
SALES RESPONSIBILITY
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Lead Generation Reseller shall be the primary sales
lead provider. Motient may provide leads to
Reseller as Motient identifies such
opportunities as part of its normal course of
business.
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Proposal Support Reseller will be responsible for
developing any and all proposal materials.
Motient will support with Motient background,
network coverage, cost justification model
development and any other boilerplate
requirements.
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PROJECT IMPLEMENTATION
--------------------------------------------------------------------------------
Implementation Training Reseller will be responsible for all training
to include end user customer, help desk and
system administrator training. Motient will
support such training by providing telephone
consultation and commercially reasonable levels
of documentation related to the Service.
--------------------------------------------------------------------------------
Hardware/Software Install Reseller will be responsible for
installation and testing of all hardware and
software components.
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POST INSTALL SUPPORT
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Billing and Collection Reseller shall be responsible
for billing and collection of fees from its end
user customers. Reseller will pay Motient
invoices as set forth in this Agreement.
--------------------------------------------------------------------------------
Help Desk (End User Customer) Reseller will provide
its employees and agents with help desk
training as required and will act as the first
level of support for end user customer service.
Motient will provide second level help desk
support to Reseller (and Motient shall not be
required to provide support directly to the end
user customers of Reseller).
================================================================================
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ATTACHMENT C
1. Nature and Control of Motient Network: Reseller may remarket the MotientSM
Services to its customers in conjunction with database information services
and/or other value-added services. Motient controls the radio network,
which enables communication and provides access in accordance with FCC
rules and regulations to and through Reseller on a shared basis. All
customers of Reseller shall use the MotientSM network so as not to cause
undue interference with any other users of the MotientSM network and in
accordance with Motient's policies and rules of use for the Motient network
and the Service, which Motient, in it's sole discretion, may amend from
time to time.
2. Security: Customers of Reseller are responsible for developing and/or
maintaining procedures, external to the MotientSM network, to safeguard
programs and data, and for the backup and reconstruction of lost data,
programs or procedures. Consequently, customers of Reseller release Motient
from all liability for the loss or alteration of programs or data or their
acquisition by another party, except for Motient's failure to implement
those aspects of security procedures, which are under Motient's direct
control. Reseller assumes no responsibility or liability for customer
activities beyond informing its customers of Motient's system requirements
and permitting the disconnection of customers violating such requirements.
Motient will not be responsible for transmission errors, corruption of data
or for the security of data during transmission via public
telecommunications facilities
3. Confidentiality: Any and all programs and other materials provided by
Motient to Reseller for distribution or use by its clients in connection
with the use of the Motient Services shall remain the exclusive and
confidential property of Motient, are licensed solely for use in
conjunction with the Services, shall not be reproduced or copied except as
required for the authorized use of the Services or as required by law, and
shall be returned to Motient or destroyed, as requested by Motient.
4. Limitation of Liability: Reseller will inform its customers that the
following provisions govern such customer's rights against Motient in the
event that the customer experiences a partial or total failure, malfunction
or defect in any of the Services provided by Motient under this Agreement.
In no event shall Motient be liable for special, incidental or
consequential damages (including without limitation, lost profits, lost
savings, incidental damages or other economic consequential damages, even
if Motient has been advised of the possibility of such damages) to the
extent such may be disclaimed by law. Further, Motient shall not be liable
for any damages based on any third party claims.
E-116
ATTACHMENT D
HARDWARE PURCHASES AND PRICING
Price. Subject to availability in its inventory, Motient will offer the RIM
Wireless Handheld device with cradle, documentation, and packaging
(collectively, the "RIM Wireless Handheld") and the Motient MobileModem at a
unit price equal to Motient's cost. The unit price for the RIM 850-2 (2MB of
RAM) is currently ninety-nine dollars U.S. ($99.00), the unit price for the RIM
850-4 (4MB of RAM) is currently one hundred ninety-nine dollars U.S. ($ 199.00)
and the unit price for the RIM 857 is currently three hundred ninety-nine
dollars U.S. ($399.00). The unit price for the MobileModem is currently two
hundred forty-nine dollars U.S. ($249.00).
Schedule. Subject to availability in Motient's inventory, Reseller agrees to
purchase from Motient a minimum of _________________ RIM Wireless Handhelds by
____________________ and an additional _______________________ RIM Wireless
Handhelds by _____________.
Limited Warranty. The RIM Wireless Handhelds and any other data terminal devices
purchased by Reseller under this Agreement (the "Product" or "Products") is
subject to a limited warranty by its manufacturer. Motient will provide such
Product warranty on a pass through basis from the manufacturer. For a period of
ONE YEAR from the date of purchase, if a Product fails to conform to the
manufacturer's specifications due to defects in materials or workmanship,
Motient, will assist Reseller obtain warranty service from the manufacturer.
Such action on the part of Motient will be the full extent of its liability and
Reseller's exclusive remedy under this Agreement for failures of or defects in
Products. The term for all implied warranties as to Products, including any
implied warranty of merchantability, shall be limited to ONE YEAR only. Motient
disclaims all other warranties, express or implied. To make a claim under the
above warranty, call Motient customer service at ▇-▇▇▇-▇▇▇-▇▇▇▇.
DISCLAIMER AND LIMITATION OF LIABILITY. THE FOREGOING LIMITED WARRANTY IS IN
LIEU OF ALL OTHER WARRANTIES AS TO PRODUCTS. MOTIENT AND ITS SUPPLIERS DISCLAIM
ANY LIABILITY for indirect, special, incidental or consequential damages
(including without limitation, lost profits), to the full extent such DAMAGES
MAY be disclaimed by law. MOTIENT'S and its suPPLIERS' total liability for any
other DAMAGES arising out of or in any way connected with the purchase of
products under this agreement, and Reseller's sole remedy FOR ANY CLAIM RELATING
TO such PURCHASE OF PRODUCTS UNDER THIS AGREEMENT, regardless of the form of the
action (whether in contract, tort or otherwise), is limited to the payment by
MOTIENT of actual damages, not to exceed the value of products purchased and
paid for by Reseller under this agreement.
E-117
ATTACHMENT E
eLink Enterprise End User Terms and Conditions
This Addendum ("Addendum") to the [End User Agreement] ("Airtime Agreement")
entered into between [Reseller] and [Customer] ("Licensee") dated
_________________ is entered into this _____ day of _______, 2002.
1. Purpose. This Addendum sets forth the terms and conditions, in addition to
those set forth in the Airtime Agreement, under which [Reseller] will provide a
license to Licensee to use eLink Enterprise software (the "Licensed Software").
To the extent there is a conflict between the provisions of this Addendum and
the Airtime Agreement as it relates to the Licensed Software, the provisions of
this Addendum shall take precedence.
2. License Grant. [Reseller] hereby grants to Licensee during the term of this
Addendum a nonexclusive, nontransferable license to use the Licensed Software
only in the form provided by [Reseller] or its licensors pursuant to the terms
of this Addendum. Licensee shall use the Licensed Software only on the computer
equipment ("Authorized Equipment") at the location ("Site") listed below:
Authorized Equipment (Manufacturer, Model and CPU serial number):
Site:
--------------------------------------------------------------------------
Licensee agrees to use the Licensed Software only for Licensee's own internal
business use. Licensee, solely to enable it to use the Licensed Software, may
make one copy of the Licensed Software on the Authorized Equipment, provided
that the copy shall include all copyright and any other proprietary notices
included in the Licensed Software in the form provided by [Reseller] and/or its
licensors. Licensee shall have no other right to copy, in whole or in part, the
Licensed Software. Licensee, including its employees, representatives and
agents, shall not have the right to alter, maintain, enhance, or otherwise
modify, the Licensed Software, in whole or in part, and Licensee, including its
employees, representatives and agents, shall not disassemble, decompile, reverse
engineer or otherwise attempt to gain access to the source code for Licensed
Software.
3. Ownership of Licensed Software. All copies of the Licensed Software shall
remain the sole and exclusive property of [Reseller] or its licensors and no
title in or to the Licensed Software or any intellectual property contained
therein, shall pass to Licensee.
4. License Fee. [To be determined by Reseller].
5. Term and Termination of Addendum. This Addendum and the license granted
hereunder shall take effect upon the date the last party executes this Addendum.
Unless otherwise terminated in accordance with the other provisions of this
Section 5, this Addendum will automatically terminate upon the termination or
expiration of the Airtime Agreement. Each party shall have the right to
terminate this Addendum and the license granted herein upon the occurrence of
any one of the following events (an "Event of Default"):
(i) in the event the other party violates any provision of this Addendum; or
(ii) in the event the other party (A) terminates or suspends its business; (B)
becomes subject to any bankruptcy or insolvency proceeding under Federal or
state statute; (C) becomes insolvent or subject to direct control by a
trustee, receiver or similar authority; or (D) has wound up or liquidated,
voluntarily or otherwise.
Upon the occurrence of an Event of Default, a party shall deliver to the
defaulting party a Notice of Intent to Terminate that identifies in detail the
Event of Default. If the Event of Default remains uncured for thirty (30) days,
the non-defaulting party may terminate this Addendum and the license granted
herein by delivering a Notice of Termination that identifies the effective date
of termination, which date shall not be less than thirty (30) days after the
date of delivery of the Notice of Intent to Terminate.
E-118
Within ten (10) days after the expiration or termination of this Addendum for
any reason, Licensee shall return to [Reseller], at Licensee's expense, the
Licensed Software, including documentation, and all copies thereof, delete or
destroy all other copies of the Licensed Software and deliver to [Reseller] a
certification, in writing signed by an officer of Licensee, that the Licensed
Software has been returned, all copies deleted or destroyed, and its use
discontinued.
6. Confidentiality. Licensed Software, although copyrighted, is unpublished and
contains proprietary and valuable information of [Reseller] and/or its licensors
and is considered to be trade secrets of [Reseller] and/or its licensors.
Licensee shall maintain the confidentiality of Licensed Software and shall
protect Licensed Software from unauthorized disclosure with at least the same
degree of care with which protect its own company's own similar confidential
information. Under no circumstance shall Licensee sell, license, publish,
display, distribute or otherwise transfer to a third party the Licensed Software
or any copy thereof, in whole or in part, without [Reseller]'s prior written
consent.
7. Warranty and Disclaimer. [Reseller], through its licensors and/or developers,
warrants to Licensee that for a period of ninety (90) days commencing upon
delivery of the Licensed Software to Licensee the Licensed Software will
substantially comply with the published description current at the time of the
delivery of the Licensed Software. This warranty on the Licensed Software is
provided on a pass through basis from [Reseller]'s licensors makes no
independent warranty. THE LIMITED WARRANTY SET FORTH IN THIS SECTION 7 IS IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability. Reseller and its licensors shall not be liable to
Licensee for indirect, special, incidental, exemplary or consequential damages
(including, without limitation, lost profits) relating to this Addendum or
resulting from Licensee's use or inability to use the Licensed Software, arising
from any cause of action whatsoever, including contract, warranty, strict
liability, or negligence, even if Reseller has been notified of the possibility
of such damages. Under no circumstances shall Reseller's liability under this
Addendum exceed the amounts paid by Licensee to Reseller hereunder.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS ADDENDUM, UNDERSTANDS IT AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
E-119