CDPD NATIONAL DATA
SERVICE AND EQUIPMENT
AGREEMENT
PREPARED FOR
U.S. WIRELESS DATA INC.
NATIONAL CORPORATE CDPD
SERVICE AND EQUIPMENT AGREEMENT
TABLE OF CONTENTS
1. Agreement
11. Exhibit A - GTEMC Markets
Ill. Exhibit B - Service and Pricing
IV. Exhibit C - Joint Marketing Operating Terms
U.S. WIRELESS DATA INC.
National Corporate Account CDPD Service and Equipment Agreement
This CDPD Service and Equipment Agreement (this "Agreement") is between GTE
Mobile Communications Service Corporation on its behalf and on behalf of GTE
Mobilnet Incorporated and Contel Cellular Inc. and their respective affiliates
and partnership interests (collectively referred to as "GTEMC") and U.S.
Wireless Data Inc. ("Customer") for the provision of Cellular Digital Packet
Data Services ("CDPD Services") in the those markets (the "Markets") set forth
on Exhibit A hereto, as modified from time to time by GTEMC. The parties agree
as follows:
1. Term. The term of this Agreement shall be for an initial period of two
(2) years, which shall commence as set forth in paragraph 13. Upon the
expiration of the initial period, this Agreement shall automatically
and perpetually renew for additional periods of two (2) years each,
unless canceled by either party upon written notice given to the other
party at least ninety (90) days prior to the expiration of the initial
term and any renewal term then in effect.
2. Service Pricing. Pricing for CDPD Services will be in accordance with
the Pricing Plan which is attached hereto and incorporated herein as
Exhibit B. The parties agree that GTEMC will be the exclusive provider
of CDPD Services in all GTEMC markets listed in Exhibit A. Customer
optionally may purchase GTEMC's CDPD services in markets not owned by
GTEMC using the same pricing shown in Exhibit B. It is specifically
acknowledged and agreed by the parties that GTEMC cannot and will not
attempt to set, influence or determine the service rates or pricing of
other carriers.
3. Minimum Requirement. In consideration for the CDPD Services provided
herein, Customer is required to meet the revenue commitments as defined
in Exhibit B.
4. Specification of Service. GTEMC or an affiliate company will provide
and procure for Customer CDPD Services for Customers application in the
Markets. The areas effectively served may be subject to transmission
limitations caused by atmospheric and other natural or artificial
conditions, including the type and condition of Customers equipment.
GTEMC assumes no responsibility to Customer or its CDPD Services users
for marginal transmissions arising from or related to interruptions or
limitations caused by any natural, atmospheric or artificial causes.
The names assigned to GTEMC's CDPD Services, "Coverage" and "Local,
State, Regional and National" are representative terms that do not
imply or denote that actual CDPD Services coverage is coterminous with
these respective geographical areas. In any geographical area there may
be sections in which CDPD Services coverage does not exist.
5. ▇▇▇▇. In connection with its provision of CDPD Services hereunder,
GTEMC shall provide Customer with an NEI for each user device. Customer
shall acquire no proprietary interest in any such NEI designated for
its use, and GTEMC reserves the right to change such ▇▇▇▇ or to
re-assign such ▇▇▇▇ to other customers.
6. Equipment. GTEMC may, but shall not be obligated to, make available
CDPD equipment (the "Equipment") for purchase by Customer. In such
event, GTEMC will provide to Customer the terms and conditions for the
purchase of such Equipment.
7. Data Services Reporting and Billing. For CDPD Services charges,
payment terms are as follows:
Payment for CDPD Services is due within thirty (30) days of the date of invoice.
Overdue balances shall accrue a late payment fee equal to the lesser of one and
one-half percent (1.5%) per month on any amount not paid when due, or the
highest amount allowable by applicable state law or tariff. The fee shall be
paid every month on all outstanding overdue balances, and shall be prorated for
each day that the payment is overdue. Such late payment fee will not be
compounded monthly. If timely payment is not received in full, GTEMC may, at its
sole option and without limiting any other remedy available under law or in this
Agreement, disconnect CDPD Services, subject to a reconnection charge for
service restoration. Customer must meet GTEMC's established credit criteria in
order to receive CDPD Services hereunder.
8. Taxes. Prices are exclusive of all federal, state, municipal or other
government, excise, sales, use, occupational, or like taxes. The amount
of any present or future tax applicable to the sale of the Equipment or
CDPD Services shall be paid by the Customer or, in lieu thereof, the
Customer shall furnish GTEMC with a tax-exemption certificate
acceptable to the appropriate tax authorities.
9. Limitation of Liability. GTEMC shall not be liable to Customer or to
CDPD Services users for interruptions caused by failure of equipment
or CDPD Services, failure of communications, power outages, or other
interruptions not within the complete control of GTEMC. There shall be
no credits, reductions, or setoff against the charges for CDPD
Services for downtime or interruption of CDPD Services unless such
CDPD Services interruption exceeds twenty-four (24) hours in duration.
GTEMC shall provide Customer with a credit equal to one thirtieth
(1130) of the recurring monthly charge for CDPD Services for each
twenty-four (24) hour period from the time of notice of interruption
until CDPD Services restoration, provided that Customer timely
notifies GTEMC of the CDPD Services interruptions.
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The liability of GTEMC for any cause whatsoever, including but not
limited to any failure or disruption of CDPD Services provided under
this Agreement, regardless of the form of action, whether in contract
or tort or otherwise, shall be limited to an amount equivalent to
charges payable by Customer under this contract 'for the services or
products furnished hereunder during the period such claim arose.
Notwithstanding any provision contained herein, GTEMC shall not be
liable to Customer, or to its users of CDPD Services, for any special,
incidental, consequential or punitive damages of any kind, including,
but not limited to, loss of business opportunity, loss of profits, or
loss of use of the Equipment.
10. General Provisions.
A. Service Disclaimer. Except as expressly set forth herein, GTEMC make
no warranties or representations, either express or implied, concerning
the CDPD Services and GTEMC expressly disclaims warranties of fitness
for a particular use or purpose, the warranty of merchantability and any
other warranty implied by law.
B. Force Majeure. Neither party shall be liable for any delays or
failure to perform resulting directly or indirectly from acts of God,
any governmental authority, accidents and disruptions, including fires,
explosions, war, insurrection, riots, labor disputes and strikes. In
addition to such causes, neither party shall in any event be liable for
delay or failure to perform resulting directly or indirectly from any
cause which is beyond that party's reasonable control.
C. Regulations. This Agreement shall at all times be subject to the
decisions, orders, statutes and rules of the federal and state
regulatory authorities having jurisdiction over the CDPD Services
provided under this Agreement.
D. Events of Default.
1. It shall be a Customer default under this Agreement if
Customer is sixty (60) days overdue on any undisputed payments
under Exhibit B.
2. Any one of the following events shall constitute a default
by either party under this Agreement:
a. Either party becomes insolvent or makes an assignment for
the benefit of creditors;
b. A receiver, trustee, conservator, or liquidator of all or
a substantial part of either party's assets is appointed
with or without said party's application or consent;
c. A petition is filed by or against (without dismissal
within 60 days) either party under the Bankruptcy Code or
any amendment
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thereto or under any other insolvency law or laws providing
for the relief of debtors; or
d. Either party assigns or attempts to assign this contract
to a third party, except as set forth in Section 1 OF.
E. Remedies and Termination. Either party may terminate this Agreement
in the event of the other party's material default, as set forth in
Section 10, which remains unresolved for a period of sixty (60) days
following written notice by the non-defaulting party. GTEMC may
terminate this Agreement, without liability to Customer, in any of the
areas set forth on Exhibit A, wherein GTEMC or an affiliate company
sells, ceases to own, manage or operate the network therein. Should
GTEMC terminate this Agreement, the Customer shall be entitled to a
refund of any payment made in advance of the actual provision of
services.
F. Non-assignment. Neither party may assign this Agreement, except to
an affiliate company or upon GTEMC's sale of any market as provided
hereinafter, without the other's prior written consent, and such
consent shall not be unreasonably withheld. However, in the event of
the sale of any market or the cessation of ownership, management or
control by GTEMC, GTEMC may seek the assignment of this Agreement to
its successor without the requirement of Customers consent. However,
nothing contained herein shall be construed as an obligation or
requirement by GTEMC to obtain any such assignment or as a condition
of sale of any market or customer base.
G. Non-waiver. Failure of either party to this Agreement to enforce
any right shall not constitute a waiver of such right or any other
right, whether of a similar or dissimilar nature, and shall not
prohibit the exercise of the same right at a future date.
H. Severability. In the event that any provision of this Agreement
shall be found to be void or unenforceable, such finding shall not be
construed to render any other provision of this Agreement either void
or unenforceable, and all other provisions which are invalid or
unenforceable shall not substantially affect the rights or obligations
granted to or undertaken by either party.
I. Headings. The headings of the provisions of this Agreement are
inserted for convenience only and shall not constitute a part hereof.
J. Law Governing. This Agreement is entered into under the laws of the
State of Georgia and shall be construed thereunder.
Notice. Any notice to be given hereunder by either party to the other shall be
in writing and shall be deemed given when sent by postage prepaid certified or
registered United States mail.
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Notices to GTEMC shall be addressed to:
GTE Mobile Communications Service Corporation
Data Products Department
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (770-391-8467)
Attn.: ▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
cc: Business Development/Contracts Counsel (same address)
Notices to Customer shall be addressed to:
▇▇▇ ▇▇▇▇▇▇▇▇▇
U.S. Wireless Data Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
If either party changes its address during the term hereof, it shall so
advise the other party in writing and any notice thereafter required to
be given shall be given to such new address.
12. Entire Agreement. This Agreement, including all Exhibits, constitutes
the entire and only agreement between the parties with regard to the
subject matter hereof, and any representation, promise or condition,
whether oral or in writing, including prior or contemporaneous
representations of sales representatives or other personnel of GTEMC,
which is not fully set forth herein or expressly incorporated herein by
reference shall not be binding upon either party. Any addition to or
waiver, alteration or modification of the foregoing conditions shall not
be valid or binding upon either party unless made in writing, and signed
on behalf of both parties by an authorized representative.
13. Term. The term of this Agreement is from August 1, 1997 to August 1, 1999.
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The parties hereto have executed this Agreement through duly authorized
representatives and wishing to be legally bound hereto are so bound as of this
first day of August, 1997.
U.S. WIRELESS DATA INC. GTE MOBILE COMMUNICATIONS SERVICE CORPORATION
SKEWED BY
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Exhibit A
GTEMC MARKETS
GTE Markets
City State
Akron OH
Austin TX
Bakersfield CA
Brandenton FL
Canton OH
Cleveland OH
Frankfort KY
Fresno CA
Honolulu HI
Houston TX
Galveston TX
Greensboro NC
Greenville VA
Indianapolis IN
Lakeland-Winter Haven FL
Lorain-Elyria OH
Louisville KY
Memphis TN
Nashville TN
Newport News VA
Norfolk VA
Petersburg-Colonial Heights VA
Raleigh-Durham NC
Richmond VA
San Diego CA
San Francisco-Oakland CA
San Jose CA
Tampa FL
Visalia-Tulare CA
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Mobilnet
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Exhibit A
(continued)
Non-GTE Markets
AMERITECH
Chicago IL
Cincinnati OH
Dayton OH
Aurora-Elgin IL
Joliet IL
▇▇▇▇ IN
Detroit-Ann Arbor MI
Flint MI
St. Louis MO
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Exhibit A
(continued)
Non-GTE Markets
▇▇▇▇ ATLANTIC/NYNEX
Allentown PA
Atlantic City NJ
Baltimore MD
Boston MA
Bridgeport/Stamford CT
Norwalk/Danbury CT
Charlotte NC
Frederick MD
Hartford CT
Hunterdon NJ
Long Branch-Asbury Park NJ
Manchester-Nashua NH
New Brunswick NJ
New Haven CT
New London/Norwich CT
NYC NY
Petersburg-Colonial Heights PA
Philadelphia PA
Pittsburgh PA
Trenton NJ
Washington DC
Wilmington DE
Worchester-Fitchburg MA
Mobilnet
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Exhibit A
(continued)
Non-GTE Markets
AT&T WIRELESS
Dallas TX
Denver co
Jacksonville FL
Las Vegas NV
Miami-Ft Lauderdale FL
Minneapolis-St. ▇▇▇▇ MN
Modesto CA
Oklahoma City OK
Orlando FL
Poftland OR
Reno NV
Sacramento CA
Salt Lake UT
San Antonio TX
Seattle-Everett WA
Stockton CA
Tulsa OK
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
Cococino AZ
El Paso TX
Las Cruces NM
Phoenix AZ
Tucson AZ
Mobilnet
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Exhibit B
PRICE PLANS & TERMS
1. Primary Service Rate Plan:
-----------------------------
(Confidentially for this item of this document has been requested
pursuant to Commission rule 24b-2. The omitted material has been filed
separately with the Commission.)
2. Minimum Cumulative Revenue Commitments To GTF-MC:
---------------------------------------------------------
Year 1 Year 2
Ql Q2 Q3 Q4 Q1 Q2 Q3 Q4
$20K $140K $380K $700K $1.1M $1.5M $2.0M $2.75M
3. Penalty Terms & Fees:
--------------------------
At the end of each quarter, should Customer not generate the minimum schedule
revenue shown above, GTEMC will invoice the Customer the difference between
actual revenue generated and the minimum schedule revenue. Customer will be
required to submit payment to GTEMC within 30 days of receipt of invoice.
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Exhibit B
(continued)
4. Alternate Service Rate Plan Selection:
At any time during this agreement term, Customer will be allowed the option once
to change to the service rate plan listed below along with the associated
committed revenue schedule.
(Confidentially for this page of this document has been requested pursuant
to Commission rule 24b-2. The omitted material has been filed separately
with the Commission.)
Year 1 Year 2
01 Q2 Q3 Q4 Ql Q2 Q3 Q4
$15K $75K $200K $400K $500K $700K $800K $1 M
If Customer exercises this option, GTEMC will re-compute all revenue generated
from the beginning of the agreement according to this rate plan. Also GTEMC will
invoice the customer for any penalty fees associated with this schedule
according to penalty fee calculations defined in 3 above. Customer will not be
allowed additional changes to rate plans once this option is exercised.
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EXHIBIT C
JOINT MARKETING OPERATING TERMS
The parties to the Agreement agree to jointly market the US Wireless Data (USWD)
Solution (as defined below) pursuant to the following terms and conditions:
1) USWD SOLUTION. The "USWD Solution" includes:
a) A USWD Tranz Enabler product; and
b) A GTE CDPD NEI address; and
c) A USWD provided credit/debit card transaction payment service with a
competitive rate to that paid by a fixed location retail merchant who
currently uses a VeriFone T330 or T380.
2) GTE RESPONSIBILITIES
a) The GTE sales representatives will utilize appropriate sales
channels to solicit retail merchants that meet the criteria set forth
in Section l.c) above to convert their existing dial line credit card
merchant service to a wireless credit card merchant service offered
from USWD.
b) Should the retail merchant wish to convert its present service, the
GTE sales representative will provide the merchant with an application
to filled out. The GTE sales representative will submit the completed
application, along with the merchant application fee and any additional
activation fees, to USWD.
The GTE "Wireless Merchant Program" encompasses a variety of retail
merchant solutions, one of which is the USWD Solution offering. As
other retail merchant solutions become available in the industry, GTE
will incorporate them into the "Wireless Merchant Program" provided
they do not violate terms of this agreement with USWD.
GTE will make available the USWD retail merchant solution in the
"Wireless Merchant Program" to all GTE commercial sales representatives
in GTE CDPD markets using dedicated CDPD channels for service.
In each selected GTE CDPD market, GTE will purchase, lease, or rent
fully operational demonstration units through USWD for the GTE sales
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representatives who are participating in this program. The local CDPD
market will provide the IP addresses for their respective
demonstration units.
f) GTE will provide GTE sales trainers to attend and learn the USWD
program for future training of GTE sales representatives
g) The responsibilities of the GTE sales representative will be the
following:
i) Make good faith efforts to attend scheduled training sessions
conducted by USWD;
ii) Solicit the USWD specified type of retail business merchant;
iii) Collect the merchant application fee and any additional
activation fees for each retail merchant who submits a merchant
application for the USWD wireless service. Should there be a
negotiated fees with the retail merchant other than the standard
rate, it must first be approved by GTE and USWD.
iv) Deliver completed application to the USWD representative
along with the merchant application fee.
Optionally, participate with the USWD representative in the deployment
of all approved retail merchants in this program
h) GTE will fund promotional programs that may include but not limited
to the following elements for marketing this solution in the "Wireless
Merchant Program":
i) Development of joint collateral material (data slicks, 4 color
brochures, etc.) using both GTE and USWD logos;
ii) Direct mail campaign and local advertising to generate leads
for GTE sales representatives;
iii) Sales incentives/contests for GTE sales representatives;
iv) Press releases on this solution for the "Wireless Merchant
Program";
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Printing of all USWD developed sales materials to the GTE sales
representatives.
3) USWD RESPONSIBILITIES
a) USWD will process the application for the merchant service and, if
approved according to Visa & Mastercard regulations, will implement the
wireless merchant service using GTE CDPD services as the communications
transport of the USWD merchant service.
b) USWD will order GTE CDPD ▇▇▇▇ for all merchants under this program
offering. The minimum revenue generated for each merchant will be as
defined in Exhibit B of the contract.
For each GTE CDPD market identified to participate in the "Wireless
Merchant Program", USWD will provide the following:
i) Development and distribution of all sales training material
for each GTE sales representative who will be soliciting retail
merchants;
ii) A minimum of one USWD sales representative residing in the
GTE selected market to coordinate all USWD responsibilities for
this program; and
iii) Delivery of a fully operational demonstration unit that will
be purchased, leased, or rented by the GTE sales office at a
discounted rate.
The USWD sales representative will perform the following functions in
the selected GTE market:
i) Full training of each GTE sales representative, which includes
classroom training and joint sales calls;
ii) Provide each GTE sales representative with all retail
merchant application paperwork, procedures and checklists
necessary for the GTE sale representative to execute a successful
solicitation;
iv) Process all merchant applications according to USWD internal
procedures;
v) Negotiate any non-standard price quotations with the retail
merchant; and
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vi) Timely provision and deploy the terminal device for the
merchant upon approval of the application.
e) USWD will order all CDPD ▇▇▇▇ for approved retail merchants from
GTE. The process for this procedure will be jointly developed by USWD
& GTE.
USWD will pay GTE $45 each for the first 2 NEI activated for each
approved retail merchant that is solicited by the GTE sales
representative in this program. For any additional activation's for the
same retail merchant, USWD will pay GTE $30 for each NEI. GTE will
invoice USWD on a monthly basis for such fees; in all other respects,
billing shall be carried out as set forth in the Agreement. Should
there be a negotiated application fee that is less than the standard
USWD application fee, USWD and GTE must both approve the decrease if it
means that GTE will receive less than the stated activation fees.
USWD will provide GTE with weekly sales reports indicating approved
retail merchants as well as identification of each GTE sales
representative who solicited that approved merchant.
USWD will be responsible for all retail merchant operational
training, either directly or indirectly.
USWD will be responsible, either directly or indirectly, for all
first level help desk (24x7) support of the retail merchant for this
program.
USWD agrees to deploy a fully configured merchant system within a
period of 1 0 business days following the approval of the merchant
application by the credit card processor used by USWD provided the
quantity of hardware is less that 25 units. for any quantity above 25,
USWD agrees to schedule deployment in a timely manner with the retail
merchant.
USWD agrees to submit the completed merchant application to the
credit card processing company within 2 days of the submission of the
application from the GTE sales representative.
4) EXCLUSIVITY. USWD agrees to use GTE CDPD services exclusively in all GTE CDPD
markets for the duration of this agreement except for those customers referred
to USWD by an alternative CDPD service provider.
GTE agrees to distribute the USWD retail merchant solution exclusively as one of
the offerings in the "Wireless Merchant Program" for the term of this
agreement." Other offerings in the "Wireless Merchant Program" will not be the
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same as the USWD offering as defined in section 1 of the USWD solution above.
This exclusivity is limited to GTE's distribution of USWD's hardware only as
described in section 1 A above. It does not preclude GE from entering into other
3rd party services agreements.
5) EVENTS OF DEFAULT. It shall be an event of default for either party to fail
to comply with such party's responsibilities as set forth hereinabove.
6) REMEDIES OF DEFAULT. The party in default will be required to submit to the
other party a mutually agreed plan within 1 0 days to resolve the default. If no
plan is presented or agreed upon, the other party may terminate this agreement
without liability.
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