EXHIBIT 10.19
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RESELLER AGREEMENT
This Reseller Agreement, as the same may be amended, supplemented, or modified
from time to time ("Agreement"), is made and entered into by and between
Destineer Corporation ("Destineer"), a Delaware corporation, and SATELLINK
PAGING, INC. d/b/a Satellink Messaging ("Reseller"), a Georgia corporation.
1. The term of this Agreement shall commence as of the Effective Date (as
defined in the attached Terms and Conditions) and shall continue for a period of
one (1) year thereafter (the "Initial Term").
2. The parties' rights and obligations under this Agreement are set forth in
the Terms and Conditions attached hereto and the accompanying exhibits which are
incorporated by reference herein.
3. Reseller's address for purposes of Section 15 of the attached Terms and
COnditions shall be ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇; ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; telephone
number (▇▇▇) ▇▇▇-▇▇▇▇; facsimile number _________________; attention ▇▇▇▇▇
▇▇▇▇▇▇▇▇.
In Witness Whereof, Destineer and Reseller have executed this Agreement on the
dates noted below.
DESTINEER CORPORATION
Date:10/17/97 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: SVP, DESTINEER
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SATELLINK PAGING INC.
Date:10/16/97 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: President
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CONFIDENTIAL
PAGE 3
Terms and Conditions
Page 1 of 2
TERMS AND CONDITIONS
1. Definitions.
(a) Affiliate: As applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For purposes of this definition, "control" (including with currelative
meanings, the terms "controlling", "controlled by", and "under common control
with"), as applied to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
that Period through the ownership of voting securities, by contract or
otherwise.
(b) Ancillary Services: The ancillary services, support and rights
identified and described in more detail in Exhibit "A" attached hereto.
(c) Cap Code: A Device specific identification code, to be assigned by
Reseller to each Device placed in service on the SkyTel Network in accordance
with the provisions of Section 6(d) below.
(d) Confidential Information: Any business, marketing, sales, financial or
technical information including, without limitation, any information relating to
the present and future business operations or financial condition, and all other
information of any kind which may reasurably be deemed confidential or
proprietary, disclosed by one party to the other pursuant to this Agreement,
which is designated or identified as "confidential", "proprietary", or in some
other manner to indicate its confidential nature. Notwithstanding the above,
"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 by the receiving party
at the time of disclosure by the disclosing party as evidenced by competent
written proof; (iii) is independently developed by the receiving party without
use of the disclosing party's Confidential Information; or (iv) is lawfully
obtained from a third Person who has the right to make such disclosure.
(e) Device: Any wireless messaging unit that Destineer, in its sole
discretion, deems acceptable for use on the SkyTel Network, a current listing of
which is set forth in Exhibit "B" attached hereto.
(f) Effective Date: The date this Agreement is executed by Destineer.
Notwithstanding the Effective Date of this Agreement, if Reseller is an existing
reseller of Destineer or its Affiliates, pricing under this Agreement shall not
become effective until the first day of the first Destineer billing cycle
immediately following the Effective Date.
(g) Person: Any individual, company, corporation, firm, partnership, joint
venture, association, organization, or trust, in each case whether or not having
a separable legal identity.
(h) PIN: A unique, Subscriber specific, personal identification number,
mailbox identification number, or other form of identification number, which may
include, without limitation, a personal toll free number, to be assigned by
Reseller in accordance with the provisions of Section 6(d) below.
(i) SkyTel: SkyTel Corp., a Delaware corporation and Affiliate of
Destineer.
(j) SkyTel Marks: The trade names, trademarks, logos, and service marks
owned by or licensed to Destineer that are listed in Exhibit "C" attached
hereto, as Exhibit "C" may be amended from time to time.
(k) SkyTel Network: Collectively, the one-way and two-way wireless
messaging systems owned and operated by Destineer and its Affiliates to provide
the SkyTel Services.
(l) SkyTel Services: The wireless messaging service offerings provided by
Destineer and its Affiliates as more fully described in Exhibit "D" attached
hereto. Notwithstanding the provision of Section 16(j) below. Destineer may
revise Exhibit "D" from time to time in its sole discretion upon the delivery
written notice to Reseller at least ninety (90) days prior to the effective date
such revision.
(m) Subscriber: A customer of Reseller that, by virtue of the reseller
relationship established hereunder, is an end-user of the SkyTel Services.
(n) UIS or Unit in Service: A SkyTel Service account activated ?? Reseller
that consists of (I) "Basic Services" (see Exhibit "I)" attached hereto or (II)
Voice Mail services. For example, a SkyWord service account constitutes one (1)
UIS: a SkyWork service account activated in connection with Voice Mail services
constitutes two (2) UIS.
2. Authority
(a) Destineer grants Reseller a non-exclusive right to resell the SkyTel
Services in the United States in accordance with the Terms and Conditions of
this Agreement, and, in connection therewith, Reseller shall use its best
efforts to promote, market and sell the SkyTel Services to Subscribers. The
right ???? authority granted herein is subject to and conditioned upon
Reseller's satisfaction of Destineer's standard credit review policies and
procedures.
(b) Notwithstanding the provision of Section 2(a) above, all personnel of
Reseller involved in the promotion, marketing and sale of wireless messaging
services provided over the advanced messaging network owned and operated by
Destineer and its Affiliates, as a condition of Reseller's right to promote,
market and sell such services, must undergo and successfully complete training
on the ???? and utilization of such services in accordance with the provisions
set forth in Exhibit "A-I" attached hereto.
(c) Notwithstanding anything to the contrary herein, Destineer and its
Affiliates expressly reserve the right to promote, solicit, market and sell the
SkyTel Services directly to Subscribers and other Persons, whether located
within or outside of the United States.
3. Price and Payment.
(a) Reseller shall compensate Destineer for the SkyTel Services in
accordance with the pricing schedule attached hereto as Exhibit "E". Monthly
service fees shall be payable by Reseller in advance and are not contingent upon
usage. Reseller shall pay applicable usage and other charges in arrears.
Notwithstanding the provisions of Section 16(j) below, Destineer reserves the
right to modify the fees and charges set forth in Exhibit "E" upon at least
thirty (30) days advance written notice to Reseller. Prices charged by Reseller
to Subscribers for the SkyTel Services shall be determined solely by Reseller.
(b) To the extent requested by Reseller, Reseller shall compensate
Destineer for the Ancillary Services in accordance with the rates and charges
set forth in Exhibit "A" attached hereto.
(c) Destineer shall invoice Reseller on a monthly basis for all fees and
charges accruing hereunder. Such fees and charges shall be due and payable by
Reseller as of the date of Destineer's invoice. Any balance not paid within
thirty (30) days following such due date shall bear interest from and after the
maximum rate allowed by law. All taxes relating to this Agreement, the SkyTel
Services and the Ancillary Services, except taxes based upon the income of
Destineer, shall be paid by Reseller.
(d) Reseller shall be liable to Destineer for all fees and charges
accruing hereunder, whether or not Reseller collects any amounts from its
Subscriber(s). Reseller shall bear all risks and expenses incurred in connection
with performance of its obligations and activities under this Agreement.
(e) [LETTER OR CREDIT/PAYMENT SECURITY PROVISION, IF APPLICABLE]
CONFIDENTIAL
Terms and Conditions
Page 2
4. Reseller Obligations.
(a) Reseller shall conduct its operations in an orderly, competent and
professional manner, and shall ensure that its officers, agents, employees and
representatives employ the highest standards of business conduct. Reseller shall
ensure that each of its employees performing any operations in connection with
the provision of the SkyTel Services are adequately trained, prior to the
commencement of any such operations, and are competent to perform their
respective duties.
(b) In providing the SkyTel Services to its Subscribers, Reseller shall
comply with all laws, rules and regulations promulgated by the FCC applicable to
the activities of Reseller hereunder, as well as with all message length,
message volume and other such operational procedures and limitations established
by Destineer from time to time.
(c) Except to the extent otherwise requested by Reseller and expressly set
forth in Exhibit "A" attached hereto, Reseller shall be solely responsible for
the provision of any and all sales and associated activities (including, without
limitation, ▇▇▇▇▇▇▇▇ to and collections from Subscribers), Devices and customer
support services to its Subscribers as related to the SkyTel Network, and shall
be solely responsible for any and all costs and expenses related thereto.
(d) Reseller shall not misrepresent the SkyTel Services to Subscribers or
otherwise make any claims, representations or warranties in connection with the
SkyTel Services other than expressly authorized by Destineer.
(e) Reseller shall ensure that provisions consistent with the provisions
set forth in Section 9 hereof are incorporated in all agreements between
Reseller and its Subscribers relative to the provision of the SkyTel Services.
Reseller shall make the form of all such agreements available to Destineer for
review and shall incorporate any modifications or amendments therein that
Destineer may reasonably request.
5. Destineer Obligations.
(a) Destineer and its Affiliates shall, at all times, have the sole and
exclusive control and authority over the design, construction, development,
management, operation, and maintenance of the SkyTel Network and the SkyTel
Services.
(b) Destineer shall provide Subscribers, through a carrier or carriers of
Destineer's choice, toll-free or local dial up access to the SkyTel Network from
any point in the continental United States, Alaska and Hawaii, and shall ensure
that the SkyTel Services provided to Subscribers shall be of at least the grade
and quality as provided by SkyTel to its direct customers.
(c) To the extent requested by Reseller, Destineer shall provide the
Ancillary Services to Reseller in accordance with the provisions set forth in
Exhibit "A" attached hereto.
6. Devices.
(a) General, Reseller and its Subscribers shall only activate the Devices
listed in Exhibit "B" in connection with the SkyTel Services. All Devices placed
in service on the SkyTel Network by or through Reseller shall comply with the
provisions of this Agreement, including, without limitation, the provisions of
this Section 6(a) and, to the extent applicable, the restrictions relative to
use of the SkyTel Marks in Retail Distribution as set forth in Exhibit "A-5"
attached hereto. Notwithstanding the provisions of Section 16(j) hereof,
Destineer may revise the Device listing set forth in Exhibit "B" from time to
time upon the delivery of written notice to Reseller at least ninety (90) days
prior to the effective date of such revision. If Destineer amends Exhibit "B" in
such a manner whereby previously authorized Devices are no longer authorized for
use on the SkyTel Network, Reseller shall take such actions as are necessary, at
Reseller's sole cost and expense, to substitute authorized Devices for the
previously authorized Devices then utilized by Subscribers in accordance with
the following time frames:(i)for Devices utilized on the one-way wireless
messaging networks owned and operated by Destineer and Affiliates, within
thirty-six (36) months following the effective date of revision to Exhibit "B",
and (ii) for Devices utilized on the two-way wire messaging network owned and
operated by Destineer and its Affiliates, with forty-eight (48) months following
the effective date of the revision to Exhibit "H".
(b) Procurement. At Reseller's request, Destineer shall sell Devices
Reseller at the prices set forth in Exhibit "B", provided that the Devices
requested are available by Destineer for distribution to Reseller, determined by
Destineer in its sole discretion. Subject to the provisions Section 6(a) above.
Reseller may also obtain Devices from the Devices manufacturer or from any other
authorized source of such Devices.
(c) Activation. All Devices activated on the SkyTel Network, Reseller
shall be ended and activated only in accordance with directive policies and
procedures established by Destineer, which, with respect to the two-way wireless
messaging network owned and operated by Destineer and Affiliates, may include,
without limitation, coding and activation of the Devices at the manufacturer
level or by or at the direction of Destineer.
(d) Cap Code and PIN Coordination.
(i) Reseller shall assign Cap Codes and PINs to Devices utilized by
Subscribers only from blocks of Cap Codes and PINs to be allocated ? Reseller by
Destineer. Destineer will use commercially reasonable efforts to make a
sufficient number of Cap Codes and PINs available to Reseller as shall be
necessary to service the number of Subscribers which Reseller, in the exercise
of its reasonable judgment, projects will utilize the SkyTel Services.
(ii) All PINs and Cap Codes assigned to Reseller by Destineer shall
remain the property of Destineer. Destineer shall have the right to utilize
PIN(s) and Cap Codes which are not utilized by Reseller, as well as those
associated with deactivated Devices, as Destineer may determine from time to
time in its sole discretion.
7. SkyTel Marks. The SkyTel Services and Devices provided by Reseller to its
Subscribers shall be private branded (i.e., except to the extent otherwise
provided herein, Reseller shall have no right or authority to market, promote or
sell the SkyTel Services and related Devices under any brand, trade or service
marks owned by or licensed to Destineer or its Affiliates). Notwithstanding the
foregoing, Destineer shall, to the extent requested by Reseller, license to
Reseller the right to utilize the SkyTel Marks in connection with such
activities in accordance with and subject to the provisions set forth in Exhibit
"A-5" attached hereto.
8. Representations and Warranties. Each party represents and warrants to the
other that (a) it is a corporation duly organized, validly existing, and in good
standing under the laws of the State of its incorporation; (b) it has all
requisite corporate power and authority to enter into this Agreement and to
carry out and perform its obligations under the terms of this Agreement; (c)
this Agreement has been duly authorized, executed, and delivered and constitutes
a valid and binding obligation of such party enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency, moratorium,
and other laws of general application affecting the enforcement of creditors'
rights; and (d) the execution, delivery, and performance of and compliance with
this Agreement does not and will not conflict with, or constitute a default
under, or result in the creation of, any mortgage, pledge, lien, encumbrance, or
charge upon any of the properties or assets of such party, nor result in any
violation of (i) any term of its certificate of incorporation or bylaws, (ii) in
any material respect, any term or provision of any mortgage, indenture,
contract, agreement, instrument, judgment, or decree, or (iii) to the best of
its knowledge, any order, statute, rule, or regulation applicable to such party,
the violation of which would have a material adverse effect on its business or
properties.
9. Limitation of Liabilities.
CONFIDENTIAL
Terms and Conditions
Page 3
(a) DESTINEER AND ITS AFFILIATES MAKE NO WARRANTIES, EITHER EXPRESS OR
IMPLIED, CONCERNING THE SKYTEL SERVICES, THE SKYTEL NETWORK OR THE ANCILLARY
SERVICES, AND HEREBY EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. UNDER
NO CIRCUMSTANCES SHALL DESTINEER OR ITS AFFILIATES BE LIABLE TO RESELLER OR ANY
OTHER PERSON, INCLUDING, WITHOUT LIMITATION, SUBSCRIBERS, FOR ANY LOSS, INJURY,
OR DAMAGE, OF WHATEVER KIND OR NATURE, RESULTING FROM OR ARISING OUT OF ANY
MISTAKES, ERRORS, OMISSIONS, DELAYS OR INTERRUPTIONS IN THE RECEIPT,
TRANSMISSION, OR STORAGE OF ANY MESSAGES, SIGNALS OR INFORMATION ARISING OUT OF
OR IN CONNECTION WITH THE SKYTEL SERVICES OR USE OF THE SKYTEL NETWORK, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, DESTINEER AND ITS AFFILIATES SHALL IN
NO EVENT BE LIABLE TO RESELLER OR ANY OTHER PERSON, INCLUDING, WITHOUT
LIMITATION, SUBSCRIBER, FOR INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, LOST
PROFITS, LOST SAVINGS OR ANY OTHER FORM OR CONSEQUENTIAL DAMAGES REGARDLESS OF
THE FORM OF ACTION, EVEN IF DESTINEER HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, WHETHER RESULTING FROM BREACH OF ITS OBLIGATIONS UNDER THIS
AGREEMENT OR OTHERWISE.
(b) DESTINEER MAKES NO WARRANTIES AS TO ANY DEVICES, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR USE OR PURPOSE, TO THE EXTENT LEGALLY PERMISSIBLE. DESTINEER SHALL
ASSIGN ALL MANUFACTURER'S WARRANTIES FOR SUCH DEVICES, IF ANY, TO RESELLER.
10. Term.
(a) The Initial Term of this Agreement shall be as specified on the
signature page of this Agreement. The term of this Agreement shall automatically
renew for additional, successive one (1) year terms at the expiration of the
Initial Term and at each anniversary thereof, unless either party provides the
other party with prior written notice of its intention not to renew this
Agreement at least ninety (90) days prior to the expiration of the then current
term.
(b) Upon any termination of this Agreement, Destineer and Reseller shall,
subject to the provisions of Sections 10(c) and 11(c) below, be released from
all obligations and liabilities to the other occurring or arising after the date
of such termination or the transactions contemplated hereby, except with respect
to those obligations which by their nature are designed to survive termination;
provided that no such termination will relieve Reseller from any amount due and
owing hereunder or any liability arising from any breach of this Agreement
occurring prior to termination.
(c) Termination of this Agreement shall not affect or diminish Reseller's
obligation to make payment to Destineer for services provided before or after
the date of termination, and such obligation shall survive termination of this
Agreement. Upon any termination of this Agreement, the parties shall, subject to
the provisions of Section 11(c) below, cooperate in good faith to effect an
orderly wind-down of the relationship created under this Agreement. Destineer's
provision of the SkyTel Services to Reseller following the date of any such
termination shall be expressly conditioned upon and subject to Reseller's
compliance with the Terms and Conditions of this Agreement, including, without
limitation, Reseller's timely payment to Destineer for services provided in
accordance with the first sentence of this Section 10(c).
11. Default.
(a) The following shall constitute an Event of Default: (i) failure by
Reseller to make any payment when due; (ii) failure by either party to observe
or perform in any material respect any of the covenants or agreements contained
in this Agreement; or (iii) a party's insolvency, assignment for benefit of
creditors, appointment or sufferance of appointment of a trustee receiver or
similar officer, or commencement of a proceeding seek reorganization,
rehabilitation, liquidation or similar relief under bankruptcy, insolvency or
similar debtor-relief statutes.
(b) Upon the occurrence of an Event of Default, the party not in ????
shall have the right to terminate this Agreement upon written notice to the
other party and the failure of the other party to cure such Default within
thirty (30) days of receiving such written notice. Notwithstanding anything
herein ???? the contrary. Destineer shall have the right, at its option, to
immediately terminate this Agreement, without further notice or right to cure,
upon ???? occurrence of any second or subsequent Default under Section 3(c) ????
within any given twelve (12) month period.
(c) In the event of termination of this Agreement by Destineer due ?????
the occurrence of an Event of Default by Reseller, Reseller shall provide
Destineer immediate access to all pertinent Subscriber records, including ????
not limited to, each Subscriber's name , address, PIN(s), and payment history as
well as all other Subscriber related records requested by Destineer whereafter
Destineer and its Affiliates shall have the absolute right, without notice to
Reseller, to take whatever action Destineer deems necessary ???? advisable to
solicit the business of such Subscribers for the benefit of Destineer and its
Affiliates. Reseller's obligations under this Section shall survive the
termination of this Agreement.
12. Assignment. This Agreement, including any rights or obligations and this
Agreement, may not be assigned or transferred, directly or indirectly, ???
either of the parties to any other Person without the prior written consent ???
the other party. In the event of any assignment or transfer of this Agreement
all terms and conditions hereof shall be binding upon and ???? to the assignee
as though such assignee were an original party herein. For purposes of this
provision, an "assignment" or "transfer" shall mean and include without
limitation, (a) any voluntary or involuntary assignment by Reseller ????
contract, law or otherwise, (b) the merger of Reseller or any controlling
Affiliate into any third Person, or (c) a change in control of Reseller or an
???? controlling Affiliate of Reseller that occurs by reason of (i) the sale of
controlling interest in the voting stock of Reseller or any controlling
Affiliate of Reseller, or (ii) a merger of a third Person into Reseller or any
controlling Affiliate of Reseller. Notwithstanding the above, Destineer may
assign this Agreement, without the prior consent of Reseller, to any Affiliate
of Destineer or to any Person acquiring all or substantially all of the assets
or a controlling interest in the voting stock of Destineer. SkyTel or any
controlling Affiliate of Destineer.
13. Indemnity and Insurance.
(a) Indemnity.
(i) Reseller shall defend, indemnify, and hold Destineer and its
Affiliates 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 (A) any breach by Reseller of any warranty ??
representation, agreement, or obligation contained herein, (B) the performance
of Reseller's duties and obligations hereunder, or (C) any unauthorized use of
the SkyTel Marks by Reseller. Reseller's obligations under this Section shall
survive the termination of this Agreement.
(ii) Destineer shall defend, indemnify, and hold Reseller 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 (A) any breach by Destineer of any warranty, representation,
agreement, or obligation contained herein, or (B) the performance of Destineer's
duties and obligations hereunder. Destineer's obligations under this Section
shall survive the termination of this Agreement.
(b) Insurance. Reseller shall maintain comprehensive general liability
insurance in a combined single limit of not less than [***], which shall
cover bodily injury (including death) and property damage. Purchase and
CONFIDENTIAL
maintenance of such insurance shall not be construed as relieving Reseller of
any of its obligations hereunder.
14. Confidentially. Each party acknowledges that, during the term of this
Agreement, it will be entrusted with Confidential Information relating to the
business of the other party. Neither party will use the other's Confidential
Information for purposes other than those necessary to further the purposes of
this Agreement. Neither party will disclose to third Persons the other's
Confidential Information without the prior written consent of the other party.
Each party understands, acknowledges and agrees that the terms and conditions of
this Agreement are confidential and restricted by this Section as to disclosure
to any third Person. Should either party be required under applicable law, rule
or regulation, or pursuant to the order of any court or governmental entity of
legal process of any governmental entity of competent jurisdiction to disclose
Confidential Information of the disclosing party in the receiving party's
possession, custody or control, the receiving party shall use commercially
reasonable efforts to: (a) give at least thirty (30) days prior written notice
of such disclosure to the disclosing party: (b) limit such disclosure; and (c)
make such disclosure only to the extent so required. The parties' obligations
hereunder with respect to Confidential Information shall survive the expiration
or earlier termination of this Agreement.
15. Notices. Any notice or other communication herein required or permitted to
be given shall be in writing and may be personally served, telecopied, telexed,
or sent by overnight courier, and shall be deemed to have been received when (a)
delivered in person or received by telecopy or telex, or (b) one (1) business
day after delivery to the office of such overnight courier service with postage
prepaid and properly addressed to the other party, at the following respective
addresses:
To Destineer: Destineer Corporation
200 South ?? Street
?? ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Fascimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Senior Vice President, Wholesale Distribution
To Reseller: See address specified on the signature page of this Agreement.
or to such other address or addresses as either party may from time to time
designate as to itself by like notice.
16. Miscellaneous.
(a) Laws, Rules and Regulations. This Agreement is subject to all laws,
rules, regulations, and ordinances relative to, among other things, the
provision of wireless messaging services, including, without limitation, the
Communications Act of 1934 and the Telecommunications Act of 1996, as amended,
and all rules and regulations promulgated thereunder.
(b) Force Majeure. Neither party will be liable for any nonperformance
under this Agreement due to causes beyond its reasonable control that ?? not
have been reasonably anticipated by the non-performing party as of Effective
Date and that cannot be reasonably avoided or overcome; provided the non-
performing party gives the other party prompt written notice such cause
promptly, and in any event within fifteen (15) calendar days discovery thereof.
(c) Independent Parties. None of the provisions of this Agreement shall
be deemed to constitute a partnership, joint venture, or any other ??
relationship between the parties hereto, and neither party shall have ??
authority to blad the other in any manner. Neither party shall have or ?? itself
out as having any right, authority or agency to act on behalf of the other party
in any capacity or in any manner, except as may be ????????? authorized in this
Agreement.
(d) Applicable Law. The validity, construction and performance of ??
Agreement will be governed by and construed in accordance with the laws of the
State of Delaware, without regard to the principles of conflict of laws.
(c) Severability. If any provision of this Agreement shall be held in ??
illegal, invalid, or unenforceable, such provision will be enforced to the
maximum extent permissible so as to effect the intent of the parties, and the
validity, legality, and enforceability of the remaining provisions shall not any
way be affected or impaired thereby.
(f) No Waiver. No delay or failure by Destineer in exercising any right
under this Agreement, and no partial or single exercise of that right, shall
constitute a waiver of that or any other right. Failure Destineer to enforce
any right under this Agreement will not be deemed a waiver of future enforcement
of that or any other right.
(g) Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but which collectively
will constitute one and the same instrument.
(h) Headings. The headings and captions used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Agreement.
(i) Construction. This Agreement has been negotiated by the parties and
their respective counsel. This Agreement will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either party based on draftmanship of the Agreement or otherwise.
(j) Complete Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
and replaces all prior or contemporaneous understandings or agreements, written
or oral, between Reseller and Destineer or any of its Affiliates regarding such
subject matter. No amendment to or modification of this Agreement will be
binding unless in writing and signed by a duly authorized representative of both
parties.
Revised June 25, 1997
CONFIDENTIAL
Exhibit "A"
Ancillary Services
Destineer shall provide the Ancillary Services and rights set forth in the
attachments designated below at the prices set forth in such attachments.
Exhibit "A-1"; Training
Exhibit "A-2"; Reseller Support Services
Exhibit "A-3"; Device Repair and Replacement Services
Exhibit "A-4"; Sales and Marketing Services
Exhibit "A-5"; License Rights
EXHIBIT "A-2"
PAGE 1 OF 1
EXHIBIT "A-1"
TRAINING
1. As a condition of the rights granted to Reseller hereunder to resell SkyTel
Services utilizing the advanced messaging network owned and operated by
Destineer and its Affiliates, all personnel of Reseller involved in the
promotion, marketing and sale of such services shall undergo and successfully
complete the training and certification program established by Destineer for
resellers of such services, which program and certification process shall be
conducted in accordance with Destineer policies and procedures and which may be
amended by Destineer from time to time. Only such personnel of Reseller that
have completed such training and certification program to the satisfaction of
Destineer may represent Reseller in the sale and support of such services. Such
training and certification program shall be implemented on a fair and even basis
with respect to Reseller, as with all resellers of such services, and shall be
imposed on Reseller only to the extent Destineer reasonably believes is
necessary (a) to familiarize such personnel with the advanced messaging network
owned and operated by Destineer and its Affiliates, the SkyTel Services provided
over such network, and use of the related Devices, and (b) for Reseller to
promote and market such services in a professional and competent manner.
2. At no charge to Reseller, Destineer shall, at times and locations mutually
agreeable to the parties, train a mutually agreeable number of Reseller's
personnel to conduct such training and certification programs for Reseller's
employees on behalf of Destineer. To the extent requested by Reseller, Destineer
shall also conduct training and certification programs for Reseller's other
personnel; provided, however, that, in such an event, Reseller shall bear all
costs and expenses associated with such training and certification programs,
shall reimburse Destineer for all reasonable out-of pocket travel and lodging
expenses, and shall pay to Destineer the fees and charges, as applicable, as
specified in the attached pricing schedule.
3. To the extent requested by Reseller, Destineer shall also conduct, at times
locations mutually agreeable to Reseller and Destineer, training sessions for
employees of Reseller involved in the promotion, marketing and sale of SkyTel's
one-way wireless messaging services. Reseller shall bear all costs and expenses
associated with such training sessions, shall reimburse Destineer for all
reasonable out-of pocket travel and lodging expenses, and shall pay to Destineer
the fees and charges, as applicable, as specified in the attached pricing
schedule.
CONFIDENTIAL
EXHIBIT "A-2"
PAGE 1 OF 1
TRAINING PRICING SCHEDULE
----------------------------------------------------------------------------------------------------------------------------------
Item Price Description
----------------------------------------------------------------------------------------------------------------------------------
Print Materials
----------------------------------------------------------------------------------------------------------------------------------
1. SkyGuide $5.00 per copy, print Workbook with written exercises and quizzes (SkyTel Cor
$5.00 per disk, elec cpy Products/Svcs)
----------------------------------------------------------------------------------------------------------------------------------
2. 5-day selling skills course $40.00 per manual, print 12 modules for selling skills: presentation skills
$5.00 per module, print competition; presenting SkyTel capabilities; intro to
$5.00 per disk, elec cpy SkyTel sales process; selling in F1000; building acct.
relationships letter writing; telemarketing; qualifying
customers and identifying applications; selling the
SkyTel solution account maintenance; developing an
action plan
----------------------------------------------------------------------------------------------------------------------------------
3. Customer Service Instructor's $10.00 per manual, print The SkyTel System (one-way system only)
Guide $5.00 per disk, elec cpy
----------------------------------------------------------------------------------------------------------------------------------
4. Customer Service Participant $10.00 per manual, print The SkyTel System (one-way system only)
Guide for one-way services $5.00 per disk, elec cpy
----------------------------------------------------------------------------------------------------------------------------------
5. Self-study guides $5.00 per copy, print Ex: intro to networked environments; popular LAN-based
$5.00 per disk, elec cpy e-mail systems
----------------------------------------------------------------------------------------------------------------------------------
6. Edits to print materials $50 per hour
----------------------------------------------------------------------------------------------------------------------------------
Audiocassette
----------------------------------------------------------------------------------------------------------------------------------
Basic Selling Skills $20.00 per set Set of 6 audiocassettes with workbook (audio scripts and
Worksheets)
----------------------------------------------------------------------------------------------------------------------------------
Video
----------------------------------------------------------------------------------------------------------------------------------
1. Custom Video $250.00 per finished Includes scripting, production, and editing
minute
----------------------------------------------------------------------------------------------------------------------------------
2. Video duplication $5.00 per tape duplication for custom videotape
----------------------------------------------------------------------------------------------------------------------------------
3. 2-Way Coverage $5.00 per tape
----------------------------------------------------------------------------------------------------------------------------------
4. 5 minutes to Tango $5.00 per tape covers hardware features for the 2-Way unit
----------------------------------------------------------------------------------------------------------------------------------
Facilitated Training
----------------------------------------------------------------------------------------------------------------------------------
Products & Svc, Operations $125 per day Plus T&E, and cost of duplicating materials
Selling Skills $275 per day Plus T&E, and cost of duplicating materials
----------------------------------------------------------------------------------------------------------------------------------
Computer Based Materials
----------------------------------------------------------------------------------------------------------------------------------
1. COMPEL, presentations $5.00 per module; Basic PC Requirements: 8 MB RAM: 16MB preferred 486
(multimedia) for one-way includes speakers notes, minimum; Pentium preferred; color monitor optional;
products and services, 10 all on disk. sound blaster compatible sound card
modules/disks 10 modules/disks
----------------------------------------------------------------------------------------------------------------------------------
2. Develop New PowerPoint $4/slide, color electronic version only; PC format
presentations
----------------------------------------------------------------------------------------------------------------------------------
3. Existing PowerPoint $5.00 per disk, electronic
Presentations version only
----------------------------------------------------------------------------------------------------------------------------------
CONFIDENTIAL
Exhibit "A-2"
Page 1 of 1
Revised October 25, 1996
Exhibit "A-2"
Reseller Support Services
Destineer shall provide telephone support to Reseller five (5) days a week
(excluding Destineer recognized holidays) during the hours of 7:00 a.m. to 7:00
p.m. CST to assist Reseller in Subscriber related matters. To the extent
Reseller utilizes Destineer to support base functions for Subscribers capable of
being supported by Reseller, Destineer reserves the right to charge Reseller a
service fee of $[***] per call times the number of Subscriber PINs covered by
the call.
Revised October 10, 1996
CONFIDENTIAL
***Denotes portions omitted pursuant to a request for confidential treatment.
EXHIBIT "A-3"
PAGE 1 OF 1
Exhibit "A-3"
Device Repair and Replacement Services
Notwithstanding the provisions of Section 9(b) of the Terms and Conditions,
Destineer shall, at Reseller's request, repair or replace defective or damaged
Devices sold to Reseller by Destineer in accordance with Section 6(b) of the
Terms and Conditions, if any, for which claims are made during the applicable
manufacturer's warranty period, subject to any limitations contained in the
applicable manufacturer's warranty. Destineer shall not be responsible for any
costs or expenses related to the repair or replacement of Devices which are not
covered by an applicable manufacturer's warranty (including, without limitation,
shipping costs). In the event that Destineer elects to replace in warranty
Devices in connection with this Exhibit "A-3", Reseller shall reasonably assist
Destineer in coordinating such replacement efforts with its Subscribers.
Revised October 11, 1996
CONFIDENTIAL
EXHIBIT "A-4"
PAGE 1 OF 1
Exhibit "A-4"
Sales and Marketing Services
Specific services and pricing have yet to be developed, but, subject to the
mutual agreement of the parties, may be added to this Exhibit "A-4" at a later
time.
CONFIDENTIAL
Exhibit "A-5"
Page 1 of 1
Exhibit "A-5"
License Rights
1. To the extent requested by Reseller, and subject to the provisions set
forth herein, Destineer hereby grants to Reseller a non-exclusive, non-
transferable license, during the term of this Agreement, to use the SkyTel Marks
soley in connection with the marketing, advertisement and promotion of the
SkyTel Services; provided, however, that Reseller shall have no such license or
right to use the SkyTel Marks, and Reseller shall be expressly prohibited from
using the SkyTel Marks, in connection with activities performed by Reseller in
the Retail Distribution (as such term is defined below) of the SkyTel Services.
Reseller's use of the SkyTel Marks in all marketing, advertising and promotional
materials and activities shall be subject to the prior written approval of
Destineer, which shall not be unreasonably withheld or delayed. Reseller shall
comply with all guidelines provided by Destineer with respect to the graphic
reproduction and use of the SkyTel Marks. This license cannot be sub-licensed,
assigned or otherwise transferred by Reseller to any third Person without the
express prior written consent of Destineer. The license granted by Destineer to
Reseller hereunder shall automatically and immediately terminate upon any
termination of this Agreement.
2. The license granted to Reseller herein is subject to the reservation in
Destineer of all right, title, and interest in and to the SkyTel Marks.
Reseller's right to use the SkyTel Marks shall be limited to and shall arise
only out of the license granted hereunder. Reseller shall not assert the
invalidity, unenforceabillity, or contest the ownership by Destineer or its
Affiliates of the SkyTel Marks in any action or proceeding of any kind or
nature, and shall not take any action that may prejudice Destineer's rights in
the SkyTel Marks, render the same generic, or otherwise weaken their validity or
diminish their associated goodwill.
3. In consideration of such license rights, Reseller shall pay to Destineer,
on a monthly basis, a royalty equal to $[***] per Device activated by Reseller
on the SkyTel Network, from and after the Effective Date, which bears a SkyTel
▇▇▇▇. Reseller shall (a) cooperate with Destineer in good faith to keep
Destineer timely apprised of the number of Devices utilized by Reseller which
bear or incorporate a SkyTel ▇▇▇▇, and (b) keep and maintain commercially
appropriate books and records as may be reasonably necessary to verify the
number of such Devices utilized by Reseller and the amount of royalties due to
Destineer on account thereof. During the term of this Agreement and for a period
of two (2) years thereafter, Destineer shall be entitled, on reasonable advance
written notice to Reseller, to retain independent certified public accountants
to review Reseller books and records for the purpose of verifying the accuracy
of the accounting for royalties paid to Destineer in accordance with this
Exhibit "A-5". Any underpayment or overpayment determined as a result of the
review will be reflected in the next scheduled royalty payment by Reseller to
Destineer. If such review verifies an underpayment error of greater than
[***] of the aggregate roylaties paid for the period being reviewed.
Reseller shall pay the cost of such examination, and in any event, shall
promptly pay to Destineer the amount of such underpayment plus [***] annual
simple interest on the underpayment, commencing when the underpayment should
have been paid and ending when the underpayment is paid.
4. Reseller's right to utilize the SkyTel marks, and the license granted
hereunder, is expressly conditioned upon, in addition to Reseller's compliance
with all Terms and Conditions of the Agreement, Reseller meeting and complying
with the following conditions:
(a) Reseller shall use the SkyTel Marks only in connection with the
marketing, advertisement and promotion of the SkyTel Services, and shall at all
times conduct such marketing, advertisement and promotional activities in a
professional and competent manner, as well as within any additional conditions
and limitations which Destineer may impose from time to time.
(b) Reseller shall establish and maintain a customer support division to
assist Subscribers which operates and is available to Subscribers twenty-four
(24) hours a day, seven (7) days a week, and shall comply with all other service
quality standards promulgated by Destineer from time to time.
5. As used herein, the term "Retail Distribution" shall mean and include sales
or other activities performed with or in the following channels: (a) traditional
consumer electronics retailers, (b) direct mail/catolog retailers (e.g.
▇▇▇▇▇▇▇▇▇▇▇, Sharper Image, llammacher-▇▇▇▇▇▇▇▇▇, and other such mass merchants
selling directly to end-users through direct marketing communications), (c)
direct marketing activities, (d) military retail dealers, (e) office supply and
other specialty dealers (e.g., office/computer supply, beeper stores), and (f)
premium/inceptive companies. For purposes of this definition, the term "direct
marketing activities" means any activities conducted by, or in conjunction with,
retailers, including, for example, using outside sales forces or placing
advertisements or promotional materials in catalogs of retail-oriented
companies. The term "direct marketing activities" does not, however, include the
placement of advertisements in media (other than (a) through (f) above) directly
and solely by Reseller.
6. The failure of Reseller to abide by and comply with any of the provisions
set forth in this Exhibit "A-5" shall give Destineer, at its sole discretion,
the right, in addition to any other rights afforded to Destineer in the
Agreement, to immediately revoke and terminate the license granted hereunder.
Revised October 14, 1996
CONFIDENTIAL
***Denotes portions omitted pursuant to a request for confidential treatment.
EXHIBIT "B"
PAGE 1 OF 1
Exhibit "B"
Authorized Devices
------------------------------------------------------------------------------------------------------
Manufacturer Model Equipment Type Baud Rate Price
------------------------------------------------------------------------------------------------------
One-Way Network:
Motorola Bravo* Numeric 2400 [***]
Motorola Bravo Plus* Numeric 2400 [***]
Motorola Advisor Gold Alpha-Flex 6400 $[***]
Motorola FLX(TM) Alpha-Flex 6400 [***]
Motorola Wordline FLX(TM) Numeric-Flex 6400 $[***]
Motorola Bravo FLX(TM) Numeric-Flex 6400 $[***]
Motorola Pro Encore FLX(TM) Numeric-Flex 6400 [***]
Motorola Pronto FLX(TM) Numeric-Flex 6400 [***]
Motorola Ultra Express Numeric-Flex 6400 [***]
NEC FLX(TM) Numeric-Flex 6400 [***]
Express Extra
Two-Way Network: FLX(TM)
Exec
Motorola Alphanumeric- 6400 $[***]
Motorola Reflex 6400 $[***]
Wireless Access Alphanumeric- 6400 $[***]
PageFinder Reflex
Tango Alphanumeric-
AccessLink Reflex
------------------------------------------------------------------------------------------------------
Notes:
* May only be used by Subscribers authorized to receive International Service
in non-Flex capable countries. Use of alphanumeric POCSAG pagers by
Subscribers in connection with activations of International Service
following the Effective Date shall be subject to Destineer's approval on a
case-by-case basis.
CONFIDENTIAL
***Denotes portions omitted pursuant to a request for confidential treatment.
EXHIBIT "C"
PAGE 1 OF 1
EXHIBIT "C"
SKYTEL MARKS
1. How the World Stays in Touch(SM)
2. Nationwide Now(SM)
3. SkyMail(R)
4. SkyNews(R)
5. SkyPager(R)
6. SkyTalk(R)
7. SkyTel(R)
8. SkyTel logo(R) (one-way and two-way)
9. SkyTel 2-Way(SM)
10. SkyTel Access(TM) Software
11. SkyWord(R)
12. SkyWord Access(TM) Software
13. SkyWriter(TM)
REVISED OCTOBER 10, 1996
CONFIDENTIAL
EXHIBIT "D"
PAGE 1
Exhibit "D"
SkyTel Services
I. ONE-WAY NETWORK:
A. Basic Services: Any one-way wireless messaging capabilities provided
by or through SkyTel in the United States which Destineer makes
available for resale by third parties that constitute "basic
services", as defined under applicable FCC rules, policy statements or
other FCC pronouncements. Basic Services presently consist of those
services described below.
1. SkyPager: Numeric service.
2. SkyWord: Alphanumeric service.
B Enhanced Services: Any one-way wireless messaging capabilities
provided by or through SkyTel in the United States which Destineer
makes available for resale by third parties that constitute "enhanced
services", as defined under applicable FCC rules, policy statements or
other FCC pronouncements. Enhanced Services presently consist of those
services described below.
1. Operator Dispatch: Operator assistance to generate alphanumeric
messages.
2. Voice Mail: Voice mailbox that accepts detailed messages from
callers and notifies the Subscriber that a message has been
received (generic and SkyTalk branded).
3. SkyNews:* News headlines provided twice daily free of charge.
4. International Service: Provision of the SkyTel Services, on a
"follow me" basis, over the global messaging network owned and
operated by Desineer's Affiliate, Mtel International, Inc.
C. Coverage:
1. Nationwide: Covers service areas in all fifty (50) states.
2. Regional: Divides country into six (6) zones; Subscriber may
select any one (1) zone.
3. Metro: Divides country into sixty (60) zones; Subscriber may
select any one (1) zone.
4. Nationwide Now: Subscriber may temporarily expand Regional or
Metro coverage to Nationwide coverage.
II. TWO-WAY (ADVANCED MESSAGING) NETWORK:
A. Basic Services: Any wireless messaging capabilities provided by or
through SkyTel in the United States utilizing narrowband PCS
frequencies which Destineer makes available for resale by third
parties that constitute "basic services", as defined under applicable
FCC rules, policy statements or other FCC pronouncements. Basic
Services presently consist of those services described below.
1. SkyWord Plus: Alphanumeric Services.
2. SkyTel 2-Way: Alphanumeric Services.
B. Enhanced Service: Any wireless messaging capabilities provided by or
through SkyTel in the United States utilizing narrowband PCS
frequencies which Destineer makes available for resale by third
parties that constitute "enhanced services", as defined under
applicable FCC rules, policy statements or other FCC pronouncements.
Enhanced Services presently consist of those services described below.
1. Operator Dispatch: Operator assistance to generate alphanumeric
messages.
2. Voice Mail: Voice mailbox that accepts detailed messages from
callers and notifies the Subscriber that a SkyTalk message has
been received (generic and SkyTalk branded).
3. SkyNews:* News headlines provided twice daily free of charge.
C. Coverage: All SkyTel Plus and SkyTel 2-Way coverage locations across
the nation.
Notes to Exhibit "D":
* To the extent Reseller utilizes the "SkyNews" service or any other
information service provided by Destineer and its Affiliates which contains
informational content and data ("Licensed Content") supplied through Dow ▇▇▇▇▇ &
Company, Inc. or any other Person unaffiliated with Destineer (a "Content
Provider"). Reseller agrees to, and shall ensure that each of its Subscribers
procuring any such services from Reseller agrees to (through incorporation of
appropriate provisions in its Subscriber agreements), the following: (a) that
Reseller (except to the extent permitted in this Agreement) and its Subscribers
shall not republish reproduce, redistribute, broadcast, display or resell any
headline, information or other content contained in the Licensed Content, (b)
that the Licensed Content is the property of the Content Provider and its
licensors and may be protected by copyright, and that neither Reseller nor its
Subscribers shall acquire any proprietary interest in the Licensed Content, (c)
that the Content Provider, its licensors, Destineer and its Affiliates disclaim
all warranties, including the implied warranties of mechantability or fitness
for a particular purpose, for the Licensed Content and that the Content
Provider, its licensors, Destineer and its Affiliates disclaim all liability to
Reseller and its Subscribers with respect to the Licensed Content, including,
without limitation, for any negligence or errors in procuring, editing, writing,
reporting or delivering the Licensed Content, and for any inaccuracies or errors
in or omission from, the Licensed Content, and for any indirect, incidental,
consequential or special damages arising therefrom.
REVISED JUNE 25, 1997
CONFIDENTIAL
Exhibit "E"
Page 1 of 4
Exhibit "E"
RATES AND CHARGES
-----------------------------------------------------------------------------------------------------------------------------------
SKYTEL One-Way Network Advanced Messaging Network
SERVICES (SkyTel F1 & F2) (Destineer F1)
-----------------------------------------------------------------------------------------------------------------------------------
Basic Services SkyPager Skyword SkyWord Plus SkyTel 2-Way
-----------------------------------------------------------------------------------------------------------------------------------
BASIC SERVICES - MONTHLY RECURRING CHARGE/4/
-----------------------------------------------------------------------------------------------------------------------------------
Coverage Nationwide Regional Metro Nationwide Regional Metro Nationwide Nationwide
-----------------------------------------------------------------------------------------------------------------------------------
1 - 1,000 UIS/e/ $13.50 $9.00 $7.25 $39.20 $24.50 $12.50 $18.50 $18.50
1,001 - 2,500 UIS $13.00 $8.75 $7.00 $38.80 $24.40 $12.25 $18.40 $18.40
2,501 - 5,000 UIS $11.00 $8.50 $6.50 $38.30 $24.50 $12.00 $18.25 $18.25
5,001 - 10,000 UIS $11.00 $8.00 $6.25 $37.85 $24.00 $11.50 $18.00 $18.00
10,001 - 20,000 UIS $11.00 $7.50 $5.75 $35.50 $23.75 $11.00 $17.75 $17.75
20,001 - 40,000 UIS $11.00 $7.00 $5.00 $32.50 $23.50 $10.50 $17.50 $17.50
40,001 - 50,000 UIS $11.00 $6.50 $4.75 $31.00 $23.25 $10.00 $17.25 $17.25
50,000 + UIS $11.00 $6.00 $4.50 $28.00 $23.00 $ 9.50 $17.00 $17.00
-----------------------------------------------------------------------------------------------------------------------------------
BASIC SERVICES - OVERCALL INFORMATION
-----------------------------------------------------------------------------------------------------------------------------------
Characters Per Message Block 20 20 20 40 40 40 10 10
Block Allowance/ UIS/Month 200 200 400 125 125 125 800 800
Charge/Block in Excess of Allowance ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇ 1 1/2c 1 1/2c
------------------------------------------------------------------------------------------------------------------------------------
ONE TIME CHARGES
------------------------------------------------------------------------------------------------------------------------------------
Activation Fee (d) $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
Operator Dispatch Registration Fee NA NA NA $5.00 $5.00 $5.00 $5.00 $5.00
------------------------------------------------------------------------------------------------------------------------------------
ENHANCED SERVICES - MONTHLY RECURRING CHARGES
------------------------------------------------------------------------------------------------------------------------------------
Personal 800/888 Number $2.00 $2.00 $2.00 $2.00 $2.00 $2.00 $2.00 $2.00
Voice Mail (includes 45 min/mon/UIS):
Generic $5.50 $5.50 $5.50 $5.50 $5.50 $5.50 $5.50 $5.50
SkyTalk Branded $5.50 $5.50 $5.50 $5.50 $5.50 $5.50 $5.50 $5.50
------------------------------------------------------------------------------------------------------------------------------------
ENHANCED SERVICES - USAGE/OVERCALL CHARGES
------------------------------------------------------------------------------------------------------------------------------------
Operator Dispatch (charge per message) ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ Mail (per min. charge over 45 min.
allowance): Generic ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
SkyTalk Branded ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
Nationwide Now (per message block) ▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇
------------------------------------------------------------------------------------------------------------------------------------
CONFIDENTIAL
Notes:
(a) Services provided over the SkyTel Network to Reseller prior to the
Effective Date for resale to Subscribers which are not identified in the
pricing schedule will continue to be provided on a "grandfather" basis at
Reseller's existing prices through June 30, 1997, at which time such
services shall be eliminated.
(b) Pricing is conditioned on use of FLEX technology pagers. Services provided
in connection with POCSAG pagers will incur an additional 30% surcharge on
months recurring fees and an additional 50% surcharge on overcall/usage
charges (with the exception of POCSAG pagers which are utilized by
Subscribers authorized to receive International Service in non-FLEX capable
countries). Reseller shall remove all 1200 baud alphanumeric POCSAG pagers
from the SkyTel Network on or before December 31, 1996. Reseller shall
remove all 1200 baud numeric POCSAG pagers from the SkyTel Network on or
before October 1, 1997.
(c) In the event interconnection carriers from which Destineer and its
Affiliates procure toll-free services are allowed, as a result of any rule,
regulation or order implemented by the FCC, to pass through local exchange
carrier or other surcharges which increase Destineer's and its Affiliates'
net toll-free telephone related costs, Destineer reserves the right to
allocate to Reseller those portions of such surcharges that can be
attributed to Reseller's and its Subscriber's usage of the SkyTel Services.
(d) Includes airtime and non-specialized SkyNews services.
(e) For pricing tier purposes, all one-way and two-way UIS are aggregated.
(f) "No charge" pricing conditioned upon activation by Reseller through
electronic means acceptable to Destineer; a $17.50 activation fee will be
imposed for each service account Reseller activates through Destineer
customer service.
EXHIBIT "E"
PAGE 2 OF 4
NOTES:
(a) Services provided over the Skytel Network to Reseller prior to the
Effective Date for resale to Subscribers which are not identified in the
pricing schedule will continue to be provided on a "grandfather" basis at
Reseller's existing prices through June 30, 1997, at which time such
services shall be eliminated.
(b) Pricing is conditioned on use of FLEX technology pagers. Services provided
in connection with POCSAG pagers will incur an additional **% surcharge on
monthly recurring fees and an additional **% surcharge on overcall/usage
charges (with the exception of POCSAG pagers which are utilized by
Subscribers authorized to receive International Service in non-FLEX capable
countries). Reseller shall remove all 1200 baud alphanumeric POCSAG pagers
from the SkyTel Network on or before December 31, 1996. Reseller shall
remove all 1200 baud numeric POCSAG pagers form the SkyTel Network on or
before October 1, 1997.
(c) In the event interconnection carriers from which Destineer and its
Affiliates procure toll-free services are allowed, as a result of any rule,
regulation or order implemented by the FCC, to pass through local exchange
carrier or other surcharges which increase Destineer's and its Affiliates'
net toll-free telephone related costs, Destineer reserves the right to
allocate to Reseller those portions of such surcharges that can be
attributed to Reseller's and its Subscriber's usage of the SkyTel Services.
(d) Includes airtime and non-specialized SkyNews services.
(e) For pricing tier purposes, all one-way and two-way UIS are aggregated.
(f) "No charge" pricing conditioned upon activation by Reseller through
electronic means acceptable to Destineer; a $17.50 activation fee will be
imposed for each service account Reseller activates through Destineer
customer service.
REVISED JUNE 25, 1997
EXHIBIT "E"
PAGE 3 OF 4
------------------------------------------------------------------------------------------------------------------------------------
INTERNATIONAL SERVICES(R)
------------------------------------------------------------------------------------------------------------------------------------
Service Type Simulcast(b) Follow-Me Frequent(c) Follow-Me(d)
------------------------------------------------------------------------------------------------------------------------------------
CANADA
------------------------------------------------------------------------------------------------------------------------------------
Numeric:
Monthly Recurring Charge $25.00 $35.00 $3.75
Message Allowance/UIS Month (20 characters message limit) 100 100 0
Charge per Message in Excess of Allowance $ 1.00 $ 1.00 $1.00
Alphanumeric
Monthly Recurring Charge $39.00 $39.00 $3.75
Character Allowance/UIS/Month 1,500 1,500 0
Charge per Character in Excess of ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇
------------------------------------------------------------------------------------------------------------------------------------
OTHER COUNTRIES(c)
------------------------------------------------------------------------------------------------------------------------------------
Numeric:
Monthly Recurring Charge $35.00 $35.00 $3.75
Message Allowance/UIS/Month (20 characters msg limit) 100 100 0
Charge per Message in Excess of Allowance $ 1.00 $ 1.00 $1.00
Alphanumeric
Monthly Recurring Charge $39.00 $39.00 $3.75
Character Allowance/UIS/Month 1,500 1,500 0
Charge per Character in Excess of ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇
------------------------------------------------------------------------------------------------------------------------------------
NOTES:
(a) Available for SkyTel One-Way Services only. All charges are in addition to
domestic charges.
(b) Messages broadcast in the United States and in one (1) Subscriber
designated country which cannot be changed.
(c) Messages broadcast in the United States and in one (1) Subscriber
designated country which can be changed at Subscriber's discretion.
(d) At Subscriber's direction, messages broadcast in the United States and in
one (1) Subscriber designated country, which can be changed at Subscriber's
discretion.
(e) Any country interconnected to the Global Messaging Network owned and
operated by Destineer's and SkyTel's Affiliate, Mtel International, Inc.
Revised October 11, 1996
CONFIDENTIAL
Exhibit "E"
Page 4 of 4
--------------------------------------------------------------------------------
INTERNATIONAL ONE-WAY VOICE MAIL
--------------------------------------------------------------------------------
Charges Monthly Recurring Charge Per Minute/Overall Charges
--------------------------------------------------------------------------------
Option A
--------------------------------------------------------------------------------
America Service NA $1.75
Europe Service NA $1.60
Pacific Service NA $1.85
--------------------------------------------------------------------------------
Option B
--------------------------------------------------------------------------------
20 Minute Talk Time $30.00 $1.80
45 Minute Talk Time $65.00 $1.80
90 Minute Talk Time $125.00 $1.80
--------------------------------------------------------------------------------
Notes:
International Voice Mail Service conditioned on Subscriber having domestic Voice
Mail service. All Charges are in addition to domestic Voice Mail service
charges.
Usage and overcall transaction rates are per minute, billed in six (6) second
increments.
Message length options are 30 seconds, 1, 2, 3 or 5 minutes, with 3 minutes
being the standard.
Extended talk times delineated in Option B are from any international location
covered by the plan.
Revised October 14, 1996