CONFIDENTIAL TREATMENT HAS BEEN REQUESTED BY U.S. WIRELESS DATA, INC. FOR
CERTAIN INFORMATION CONTAINED IN ARTICLE 6 OF THIS AGREEMENT.
CONTRACT NO. ###-##-####
JOINT CDPD SALES AND MARKETING AGREEMENT
between
US WIRELESS DATA INC
and
▇▇▇▇ ATLANTIC MOBILE
PRIVATE
The information contained herein is proprietary and should not be disclosed to
unauthorized persons. It is meant solely for use by authorized ▇▇▇▇ Atlantic
Mobile employees and persons employed, retained or consulted by them.
JOINT CDPD SALES AND MARKETING AGREEMENT
THIS JOINT MARKETING AGREEMENT is made by and between Cellco
Partnership, a Delaware General Partnership, doing business as ▇▇▇▇ Atlantic
Mobile, located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter
"▇▇▇▇ Atlantic Mobile"), and US WIRELESS DATA INC, a California corporation,
with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("USWD").
W I T N E S S E T H
WHEREAS, ▇▇▇▇ Atlantic Mobile has the ability to offer its current and
prospective customers its wireless data Cellular Digital Packet Data ("CDPD")
services; and
WHEREAS, USWD develops and distributes a certain software and hardware
package to provide wireless credit card merchant service to satisfy particular
customer requirements; and
WHEREAS, the parties have entered into an Airbridge Packet Service
Agreement, dated August 14, 1997, a copy of which is attached hereto;
WHEREAS the parties have determined that it will be beneficial for the
parties to sell and market a total USWD Solution to prospective customers.
NOW, THEREFORE, in consideration of the mutual promises and covenants of
the parties as hereinafter set forth, ▇▇▇▇ Atlantic Mobile and USWD agree as
follows:
ARTICLE 1 - DEFINITIONS
-----------
"Affiliate" of a person or entity (the "primary party") means another
person or entity which falls within any one or more of the following categories:
(i) a person or entity that is controlled by, controls or is under the same
control as the primary party, or (ii) a subsidiary (whether or not consolidated)
of the primary party, or (iii) an entity of which the primary party is a
subsidiary (whether or not consolidated), or (iv) a person or entity which has a
material ownership interest in the primary party or which manages a significant
portion of the primary party's day-to-day operations, or (v) an entity in which
the primary party has a material ownership interest or which has a significant
portion of its day-to-day operations managed by the primary party.
"▇▇▇▇ Atlantic Mobile Market Area" means the area designated as the ▇▇▇▇
Atlantic Mobile Market Area in Exhibit A hereto.
"▇▇▇▇ Atlantic Mobile Services" means CDPD, services as set forth in the
Airbridge CDPD Service Agreement.
"Cellular Digital Packet Data Service ("CDPD"). Cellular radio service
utilizing packet switching technology to transmit data over radio frequency
channels. The raw data rate of CDPD is 19.2 Kilobits per second. It is a
connectionless multi-protocol network service providing peer network wireless
extension to existing data networks.
"USWD Market Area" means the area(s) designated as the ▇▇▇▇ Atlantic Mobile
Primary Serving Markets as listed in Exhibit A
"USWD Products" means a VeriFone TRANZ 330 or TRANZ 380 Credit Card
terminal and the TRANZenabler unit or equivalent unit and/or combination of
services along with credit card processing services.
"Customer" means, at any time, any current customer or client of the party
in question.
"Solutions" means actual or proposed total wireless data solutions to the
needs of Prospects, which solutions utilize CDPD along with the USWD Products.
"Direct Sales Channel" means for any entity all individuals employed by
such entity for the purpose of sales and all sales facilities operated by such
entity (such as communication store outlets, in the case of ▇▇▇▇ Atlantic
Mobile), but shall not include independent agents of such entity.
"Existing ▇▇▇▇ Atlantic Mobile Services" means the CDPD services which ▇▇▇▇
Atlantic Mobile markets generally from time to time.
"Network Entity Identifier" ("NEI"). A network address assigned to the MES.
Each MES has an NEI and a unique corresponding EID for authentication purposes.
"Prospect" means any Customer or potential Customer to whom a party hereto
has made, or is considering making, a Proposal.
To "Reasonably Recommend" a Product or Solution means to recommend and
promote such Product or Solution to a Prospect in a manner reasonably designed
to influence the Prospect to purchase the Product or Solution; provided, that an
obligation to Reasonably Recommend a Product or Solution does not include any
obligation: (a) to promote any Product or Solution if there exists a good faith
belief that the Prospect's requirements would not be addressed as well by such
Product or Solution as they would by some competing Product or Solution or (b)
to continue promoting the Product or Solution if the Prospect indicates an
unwillingness to consider using it.
ARTICLE 2 - JOINT SALES AND PROMOTION
-------------------------
2.1 Recommendation of USWD Products. During the term of this Agreement, ▇▇▇▇
Atlantic Mobile, through its Direct Sales Channel, may Reasonably Recommend the
USWD Products in the ▇▇▇▇ Atlantic Mobile Market Area.
2.2 ▇▇▇▇ Atlantic Mobile Proposals. During the term of this Agreement, whenever
▇▇▇▇ Atlantic Mobile is considering making a Proposal which, in ▇▇▇▇ Atlantic
Mobile's reasonable judgment, may benefit from the inclusion of USWD Products,
▇▇▇▇ Atlantic Mobile may so notify USWD. Upon receipt of such notice, USWD shall
promptly provide to ▇▇▇▇ Atlantic Mobile all sales, marketing and technical
support necessary to enable ▇▇▇▇ Atlantic Mobile to include in its Proposal, to
the extent reasonably practical, Solutions using USWD Products. ▇▇▇▇ Atlantic
Mobile may request USWD's support, but ▇▇▇▇ Atlantic Mobile shall be under no
obligation to recommend Solutions containing USWD Products to ▇▇▇▇ Atlantic
Mobile's Prospects.
2.3 Training Regarding USWD Products and Technology. During the term hereof, in
order to enhance ▇▇▇▇ Atlantic Mobile's ability to Reasonably Recommend USWD
Products and its ability to create Proposals which could include USWD Products,
and thereby to further advance both parties' purposes hereunder, USWD shall make
available to ▇▇▇▇ Atlantic Mobile information designed to enhance ▇▇▇▇ Atlantic
Mobile's understanding of the functions and advantages of the USWD Products.
2.4 Exclusivity of ▇▇▇▇ Atlantic Mobile CDPD Service. During the term hereof,
USWD shall use only ▇▇▇▇ Atlantic Mobile CDPD Service for its USWD Products and
Solutions, in the ▇▇▇▇ Atlantic Mobile Market Area. In the event that USWD has a
similar Joint Sales and Marketing Agreement in place with another wireless
carrier, it may sell such services as part of the Solution, provided that it
must be done solely through the other carrier's sales force and not by USWD
Agents or employees. USWD employees will only jointly sell with another
carrier's direct sales force when the carrier specifically refers the potential
Customers to USWD. If any sales are made by USWD, its Agents or sales force or
through ▇▇▇▇ Atlantic Mobile, it must exclusively be a solution utilizing ▇▇▇▇
Atlantic Mobile CDPD Service. USWD shall not recommend any provider of CDPD
other than ▇▇▇▇ Atlantic Mobile to any Customer or potential Customer in the
▇▇▇▇ Atlantic Mobile Market Area.
ARTICLE 3 - RELATIONSHIP OF THE PARTIES
---------------------------
Each of the parties hereto will act as, and will be, independent
contractors in all aspects of their performance of this Agreement. Neither party
will act or have authority to act as an agent for the other party for any
purpose whatsoever. Nothing in this Agreement will be deemed to constitute or
create a joint venture, partnership, franchise, pooling arrangement, or other
formal business entity or fiduciary relationship between USWD and ▇▇▇▇ Atlantic
Mobile.
3.1 ▇▇▇▇ ATLANTIC MOBILE RESPONSIBILITIES
-------------------------------------
3.1.1 ▇▇▇▇ Atlantic Mobile will market the USWD Solution to retail merchants
that meet the criteria set forth in Section 3.2.
3.1.2 Should the retail merchant wish to submit an application to purchase the
USWD Solution, the ▇▇▇▇ Atlantic Mobile sales representative will provide the
merchant with an application to be filled out. The ▇▇▇▇ Atlantic Mobile sales
representative will arrange for the delivery of the completed USWD or other Bank
Processor merchant application, Rates and Fees Schedule and a check from the
merchant for the activation fees due to USWD.
3.1.3 ▇▇▇▇ Atlantic Mobile will make available the USWD retail merchant solution
to select ▇▇▇▇ Atlantic Mobile sales representatives in specific ▇▇▇▇ Atlantic
Mobile CDPD markets on a region by region basis. The decision as to the regions
that will participate shall be at the sole discretion of ▇▇▇▇ Atlantic Mobile
3.1.4 Sales Demo Equipment- In each ▇▇▇▇ Atlantic Mobile market participating in
this program, ▇▇▇▇ Atlantic Mobile will purchase, lease, or rent TRANZ 330 or
TRANZ 380 terminals for ▇▇▇▇ Atlantic Mobile sales representatives for the
purpose of demonstrating the USWD solution to potential customers. For each of
these terminals, USWD will provide fully operational TRANZenabler units for use
with these terminals at a total fee of $7.50 per month per terminal for up to 30
units. ▇▇▇▇ Atlantic Mobile and USWD agree to revisit this issue and USWD shall,
in good faith, supply ▇▇▇▇ Atlantic Mobile with additional units should ▇▇▇▇
Atlantic Mobile require additional TRANZenabler units beyond the 30 units stated
above.
3.1.5 ▇▇▇▇ Atlantic Mobile will assist USWD in scheduling and coordinating
training programs for ▇▇▇▇ Atlantic Mobile sales representatives in specific
▇▇▇▇ Atlantic Mobile markets for this project.
3.1.6 Make good faith efforts to arrange for its sales representatives attend
scheduled training sessions conducted by USWD;
3.1.7 Market the USWD Product and Solutions to qualified retail business
merchants;
3.1.8 Arrange for the collection of a $150 merchant application fee and any
additional activation fees for each retail merchant who submits a merchant
application for the USWD service.
3.1.9 Deliver completed merchant application and Rates and Fees Schedule to the
USWD representative along with a check collected from the merchant for the
application fee.
3.1.10 ▇▇▇▇ Atlantic Mobile will provide Airbridge CDPD services for all USWD
representatives in ▇▇▇▇ Atlantic Mobile markets for demonstration purposes as
follows:
3.1.10.1 for USWD employees directly supporting ▇▇▇▇ Atlantic Mobile sales
efforts in ▇▇▇▇ Atlantic Mobile CDPD territories, ▇▇▇▇ Atlantic Mobile will
provide one NEI for each employee
3.1.10.2 for non-salaried Independent Sales Organization of USWD selling
directly to end merchants in ▇▇▇▇ Atlantic Mobile CDPD territories, ▇▇▇▇
Atlantic Mobile will provide up to 2 ▇▇▇▇ per Independent Sales Organization.
The rates for such demonstration services shall be at no charge within the ▇▇▇▇
Atlantic Mobile Market Area on the ▇▇▇▇ Atlantic Mobile System and shall be at
the rate of 8 cents per kilobyte when outside the ▇▇▇▇ Atlantic Mobile Market
Area or when on another carrier's System while in the ▇▇▇▇ Atlantic Mobile
Market Area.
3.1.11 Ordering of all ▇▇▇▇ for Demo units must be approved by ▇▇▇▇ Atlantic
Mobile HQ Marketing Project Manager. These Units are for demonstration purposes
only and are not to be permanently installed in a merchant location.
3.2 USWD RESPONSIBILITIES
---------------------
3.2.1 USWD will provide credit/debit card transaction payment services to
qualified retail merchants:
3.2.2 USWD shall provide the TRANZenabler or equivalent as follows:
3.2.2.1 at no charge once a qualified merchant has met the established minimum
transaction volume requirements of $12,000 in credit dollar transactions or 200
transactions; or
3.2.2.2 at the rate of $15 per unit per month for merchants who do not meet the
requirements set forth in Section 3.2.2.1; or
3.2.3 USWD will process the application for the merchant service and, if
approved, will deploy and install TRANZenabler(s) exclusively using ▇▇▇▇
Atlantic Mobile
CDPD services under the terms and conditions of the AirBridge
Packet Services Agreement attached hereto.
3.2.4 USWD shall provide all USWD Products and Solutions to its Customers for
its own account and train the retail merchants in the operation of the Products
and Solutions. The retail merchants shall at all times be the Customer of USWD
and ▇▇▇▇ Atlantic Mobile shall have no liabilities or obligations to these
merchants. USWD shall be ▇▇▇▇ Atlantic Mobile's only Customer for CDPD Service
and sales of USWD Solutions under this Agreement.
3.2.5 USWD will be responsible, either directly or indirectly, for all first
level help desk (24 hours per day, 7 days per week ) support of the retail
merchant for this program.
3.2.6 For each ▇▇▇▇ Atlantic Mobile CDPD market identified as participating in
the Program", USWD will provide the following:
3.2.6.1 reasonable sales training material for each ▇▇▇▇ Atlantic Mobile sales
representative who will be marketing to retail merchants;
3.2.6.2 A minimum of one USWD representative residing in the applicable ▇▇▇▇
Atlantic Mobile region(s) to coordinate all USWD responsibilities for this
program; and
3.2.6.3 Delivery of fully operational demonstration units for ▇▇▇▇ Atlantic
Mobile sales representatives selling this solution, pursuant to Section 3.1.4
3.2.7 The USWD representative will perform the following functions in the
selected ▇▇▇▇ Atlantic Mobile market:
3.2.7.1 Reasonably train each ▇▇▇▇ Atlantic Mobile sales representative,
including classroom training and joint sales calls;
3.2.7.2 Provide each ▇▇▇▇ Atlantic Mobile sales representative with all retail
merchant application paperwork, procedures, checklists, worksheets and all other
sales tools required necessary for the ▇▇▇▇ Atlantic Mobile sale representatives
to appropriately market the USWD Products and Solutions. Each application shall
contain a provision or an addendum containing a waiver of liability against ▇▇▇▇
Atlantic Mobile by the merchant.
3.2.7.3 Process all merchant applications according to procedures developed by
USWD and agreed to by ▇▇▇▇ Atlantic Mobile;
3.2.7.4 Negotiate any non-standard price quotations directly with the retail
merchant; and
3.2.7.5 Provision and install terminal devices for the merchant upon approval of
the application.
3.2.8 USWD agrees to deploy a fully configured merchant system within a period
of ten (10) business days following the approval of the merchant application by
the credit card processor used by USWD provided the quantity of hardware
is less than twenty-five (25) units per occurrence. For any quantity above
twenty-five (25) units, USWD agrees to schedule deployment in a timely manner
with the retail merchant.
3.2.9 USWD agrees to submit a properly completed merchant application to the
credit card processing company within two (2) days of the submission of the
application from ▇▇▇▇ Atlantic Mobile. The Credit Card Processing company will
either approve or deny the merchant application within four (4) business days
from submittal of the application to the Credit Card Processor unless the Credit
Card Processor requires additional information or paperwork from the merchant,
but in no event greater than fifteen (15) days from resubmital of the
information..
3.2.10 USWD will ensure that terminal units are installed in merchant locations
of the qualified and approved merchants within sixteen (16) business days from
the time the completed application and applicable merchant application fees are
delivered to the USWD representative unless the Credit Card Processor requires
additional information or paperwork from the merchant, but in no event greater
than fifteen (15) days from resubmital of the information. USWD will notify ▇▇▇▇
Atlantic Mobile immediately of any conditions including but not limited to,
manufacturing, change in credit card processor relationships, merchant terminal
equipment compatibility and applications software, personnel, and business
operations, that may cause delay in these time frames.
3.2.12 USWD will define the specific time interval and procedures for
identifying escalating, and closing merchant troubles within 10 business days of
execution of this agreement.
3.2.13 In order to ensure that ▇▇▇▇ Atlantic Mobile will be able to comply with
USWD requests for ▇▇▇▇, USWD will periodically reserve additional ▇▇▇▇ in each
▇▇▇▇ Atlantic Mobile market as defined in ▇▇▇▇ Atlantic Mobile's methods and
procedures attached to this Agreement.
3.2.14 In the event that a merchant is dissatisfied with the USWD solution sold
to them, USWD will be responsible for remedying the situation to the
satisfaction of the merchant. In such cases, USWD will notify ▇▇▇▇ Atlantic
Mobile in writing of such incident on a monthly basis and include the cause of
the dissatisfaction and a description of the remedy taken to satisfy the
merchant.
3.2.15 USWD will notify ▇▇▇▇ Atlantic Mobile of any planned change in its
standard processing rates and activation fees ten (10) days prior to making
these rates available to any merchants under this program.
3.3 JOINT RESPONSIBILITIES
----------------------
3.3.1 Both parties may mutually agree to marketing and promotional programs to
support this project that may include but not be limited to the following:
3.3.1.1 Joint sales collateral material includes, but is not limited to, data
slicks, color brochures using both ▇▇▇▇ Atlantic Mobile and USWD logos;
3.3.1.2 Direct mail campaigns and local advertising to generate leads for ▇▇▇▇
Atlantic Mobile sales representatives;
3.3.1.3 Sales incentives/contests for ▇▇▇▇ Atlantic Mobile representatives;
3.3.1.4 Public relations activities
3.3.1.5 Printing of all USWD developed sales materials for the ▇▇▇▇ Atlantic
Mobile sales representatives.
3.3.1.6 Tele-services programs to pre-qualify potential stationary merchants
within ▇▇▇▇ Atlantic Mobile's service area
3.3.2 ▇▇▇▇ Atlantic Mobile has tested and approved the Solutions using the
TRANZenabler units with USWD's existing credit card processor, NOVA Information
Systems, Inc. ▇▇▇▇ Atlantic Mobile reserves the right to test and approve any
new or modified Solutions including the use of any new Credit Card Processor
prior to any direct solicitation by ▇▇▇▇ Atlantic Mobile representatives.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF USWD
--------------------------------------
USWD hereby represents and warrants to ▇▇▇▇ Atlantic Mobile as follows:
4.1 Sufficient Rights; No Infringement. USWD owns the entire right, title and
interest in and to the USWD Products, or has sufficient rights therein, to
utilize the USWD Products for the purposes set forth herein. The USWD Products
to be used in accordance with any arrangements contemplated by this Agreement do
not infringe or violate any United States patents or any copyright, trademark,
trade secret or other intellectual property rights and there are no claims of
any such infringement or violation.
4.2 Authority. USWD has the requisite authority to enter into this Agreement and
to perform all of its obligations hereunder.
4.3 USWD represents and warrants that ▇▇▇▇ Atlantic Mobile shall have no
registration, reporting, auditing or filing requirements in connection with any
banking, credit card processing or other financial institution.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇ ATLANTIC MOBILE
------------------------------------------------------
▇▇▇▇ Atlantic Mobile hereby represents and warrants to USWD as follows:
5.1 Sufficient Rights; No Infringement. ▇▇▇▇ Atlantic Mobile owns the entire
right, title and interest in and to the ▇▇▇▇ Atlantic Mobile Services and ▇▇▇▇
Atlantic Mobile Technology, or has sufficient rights therein, to utilize the
▇▇▇▇ Atlantic Mobile Services and the ▇▇▇▇ Atlantic Mobile Technology for the
purposes set forth herein. Neither the ▇▇▇▇ Atlantic Mobile Services nor the
▇▇▇▇ Atlantic Mobile Technology to be used in accordance with any arrangements
contemplated by this Agreement infringe or violate any United States patents or
any copyright, trademark, trade secret or any other intellectual property rights
and there are no claims of any such infringement or violation.
5.2 Authority. ▇▇▇▇ Atlantic Mobile has the requisite authority to enter into
this Agreement and to perform all of its obligations hereunder.
ARTICLE 6 - SALES COMPENSATION
------------------
6.1 Within thirty (30) days after activation of a unit, USWD will pay to ▇▇▇▇
Atlantic Mobile $## per unit activated per merchant ID for each of the first two
(2) units and thereafter $## per unit for each such merchant ID activated under
this Agreement.
6.2 For each unit that is activated under this Agreement, commencing with the
##th month after activation, USWD will pay ▇▇▇▇ Atlantic Mobile $# per unit per
month for every merchant that has reached the threshold of greater than or equal
to $## in credit sales or ############ transactions per month.
6.3 USWD will provide ▇▇▇▇ Atlantic Mobile with monthly Sales and Activations
reports indicating the following:
6.3.1 the number of units sold per merchant location
6.3.2 the NEI and merchant name for each NEI activated under this program 6.3.3
the date that the unit was successfully installed in the merchant location
6.3.4 the sales ID for the ▇▇▇▇ Atlantic Mobile representative responsible for
generating the application for the Solution and the date of installation of the
merchant unit for each NEI activated.
6.4 ▇▇▇▇ Atlantic Mobile shall have the right to audit all reports and data of
USWD relating to sales and activations, names and merchant Ids, and the related
transaction levels of merchants under Section 6.2 of this Agreement and all
other information relevant to this Agreement, upon reasonable notice. USWD will
further provide ▇▇▇▇ Atlantic Mobile with reports of those merchants that have
not been approved and the reasons for denial of the applications in each
instance.
ARTICLE 7 - NON-DISCLOSURE
--------------
7.1 Non-Disclosure of Agreements. Neither party will make any disclosure
regarding the terms of this Agreement or the business arrangements described
herein without obtaining the prior written consent of the other party; provided,
however, that (i) the parties may communicate with Customers and Prospects to
the extent reasonably required to perform hereunder (but will obtain prior
written approval of the other party hereto before identifying such party in
advertisements, mass mailings or general publicity); (ii) each party will be
permitted to make such disclosures as are required by legal or regulatory
requirements applicable to, and beyond the reasonable control of, the party; and
(iii) either party may disclose the terms of this Agreement and the business
arrangements described herein to employees of their affiliates who have a need
to know.
7.2 Confidential Information. The parties recognize that in the course of
negotiating and performing this Agreement both parties have had and will
continue to have access to certain confidential or proprietary information
belonging to the other and each desires that any such confidential and
proprietary information remain confidential. Each party agrees that, both during
the term hereof and for a period of two (2) years after the termination of this
Agreement such party will use the same means it uses to protect its own
confidential proprietary information, but in no event less than reasonable
means, to prevent the disclosure and to protect the confidentiality of both (i)
written information received from the other party which is marked or identified
as confidential, and (ii) oral or visual information identified as confidential
at the time of disclosure which is summarized in writing and provided to the
other party in such written form promptly after such oral or visual disclosure
("Confidential Information"). The foregoing will not prevent either party from
disclosing Confidential Information which belongs to such party that is (i)
already known by the recipient party without an obligation of confidentiality,
## CONFIDENTIAL TREATMENT HAS BEEN REQUESTED BY U.S. WIRELESS DATA, INC. FOR
THIS PORTION OF THIS DOCUMENT PURSUANT TO COMMISSION RULES 24b-2 AND/OR 406. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
(ii) publicly known or becomes publicly known through no unauthorized act of the
recipient party, (iii) rightfully received from a third party, (iv)
independently developed by the recipient party without use of the other party's
Confidential Information, (v) disclosed without similar restrictions to a third
party by the party owning the Confidential Information, (vi) approved by the
other party for disclosure, or (vii) required to be disclosed pursuant to a
requirement of a governmental agency or law so long as the disclosing party
provides the other party with notice of such requirement prior to any such
disclosure.
7.3 Remedies. Each party acknowledges that the other would suffer irreparable
damage in the event of any breach of the provisions of this Article 7.
Accordingly, in such event, a party will be entitled to temporary, preliminary
and final injunctive relief, as well as any other applicable remedies at law or
in equity against the party who has breached or threatened to breach this
Article 7.
7.4 No Rights Granted. Nothing contained in this Agreement shall be construed as
granting or conferring any rights by license or otherwise in any Confidential
Information disclosed to the receiving party. All Confidential Information shall
remain the property of the disclosing party and shall be returned by the
receiving party to the disclosing party upon request. All notes, abstracts,
memoranda, or other documents prepared by receiving party which contain
Confidential Information or any discussion thereof, shall be destroyed or
returned to the disclosing party upon written request. If the parties hereto
decide to enter into any licensing arrangement regarding any Confidential
Information or present or future patent claims disclosed hereunder, it shall
only be done on the basis of a separate written agreement between them. No
disclosure of any Confidential Information hereunder shall be construed a public
disclosure of such Confidential Information by either party for any purpose
whatsoever.
7.5 Limitation on Obligations. The furnishing of Confidential Information
hereunder shall not obligate either party to enter into any further agreement of
negotiation with the other or to refrain from entering into an agreement or
negotiation with any other party.
7.6 Public Relations. Neither party shall make any press releases, public
references or engage in public relations activities with respect to this
Agreement or reference this Agreement without the expressed written consent of
the other party.
ARTICLE 9 - TERM AND TERMINATION
--------------------
9.1 Subject to the termination provisions below, this Agreement shall take
effect upon execution of this Agreement by the parties and shall continue for a
period of two (2) year from the date hereof.
9.2 This Agreement may be terminated by either party with or without cause by
giving thirty (30) days' prior written notice to the other (to the attention of
the person signing this Agreement on behalf of such other party). Upon material
breach or default under this Agreement by either party, if the other party gives
notice of such breach or default the party in default will be required to submit
to the other party a mutually agreed plan within ten (10) days to resolve the
default then without limitation of any other remedy available hereunder, the
non-defaulting party may terminate this Agreement immediately by delivery of a
notice of termination simultaneously with the notice of default or at any time
thereafter. If no plan is presented or agreed upon, the other party may
terminate this Agreement without liability except for funds owed to a party
prior to such termination. This Agreement may be immediately terminated without
prior written notice at the option of ▇▇▇▇ Atlantic Mobile in the event that
USWD violates any of the conditions of Article 8 relating to the Confidential
Information of ▇▇▇▇ Atlantic Mobile or USWD shall have
ceased business, been adjudged bankrupt or insolvent, made an assignment for the
benefit of creditors, and/or filed for a petition in bankruptcy or
reorganization.
9.3 Following expiration or termination of this Agreement, except for the
obligations of the parties set forth in Section 9.5 below, the parties will have
no further obligation or responsibility to each other.
9.4 No Waiver. The right of either party to terminate this Agreement hereunder
shall not be affected in any way by its waiver of or failure to take action with
respect to any previous default.
9.5 Survival of Obligations upon Expiration of Term or Termination of Agreement.
9.5.1 All obligations of the parties arising hereunder and relating to any
Proposal or joint Customer relationship existing on the date of expiration or
termination (other than obligations to recommend or jointly market each others
Products and services) shall continue in full force and effect subsequent to and
notwithstanding the termination or expiration of this Agreement until all such
obligations are satisfied in full. The termination or expiration of this
Agreement shall in no way affect the rights and obligations of ▇▇▇▇ Atlantic
Mobile and USWD under any then existing subcontracting agreement or similar form
of agreement between the parties , except to the extent set forth therein.
9.5.2 All representations, warranties and covenants of the parties set forth in
Section, Section, Section, Section shall survive the termination of this
Agreement for a period of two (2) years (the "Two-Year Period"); provided,
however, (i) if a claim or allegation of infringement of any U.S. patent or any
trademark, copyright, trade secret or other intellectual property right is made
during the Two-Year Period, then, with respect to such claim or allegation, the
indemnification provisions of Section shall survive beyond the Two-Year Period
and (ii) if a claim or demand covered by Section is made within the Two-Year
Period, then, with respect to such claim or demand, the indemnification
provisions of Section shall survive beyond the Two-Year Period.
ARTICLE 10 - INDEMNIFICATION
---------------
10.1 Intellectual Property Indemnification.
--------------------------------------
10.1.1 USWD shall defend, indemnify, and hold harmless ▇▇▇▇ Atlantic Mobile,
▇▇▇▇ Atlantic Mobile's parent and affiliated companies, and ▇▇▇▇ Atlantic
Mobile's customers (each, an "Indemnified Party") for any loss, damage, expense
or liability that may result by reason of any infringement or claim or
allegation of infringement of any U.S. patent or any trademark, copyright, trade
secret or other intellectual property rights by any USWD Products furnished by
USWD hereunder or as contemplated hereby and to pay costs, expenses, attorney's
fees and damages resulting from any claim, suit, settlement or judgment provided
that USWD is notified promptly in writing of the claim or suit and at USWD's
request and at its expense is given control of said suit and, at USWD's expense,
all reasonable requested assistance for defense of same. If a settlement or
judgment involves a license, then USWD shall obtain for Indemnified Party and
pay the cost of the license, so that USWD Products furnished hereunder or as
contemplated hereby will be licensed.
10.1.2 If the use, manufacture or sale of any USWD Product furnished hereunder
is claimed to infringe any U.S. patent or any trademark, copyright, trade secret
or other intellectual property rights, at Indemnified Party's option and at no
expense to Indemnified Party, USWD shall obtain for the Indemnified Party the
right to use or sell said Product(s) or technology or shall substitute an
equivalent Product
reasonably acceptable to Indemnified Party and extend this indemnity thereto or
shall accept the return of the Product(s) and reimburse Indemnified Party the
purchase price therefor. This indemnity extends to any claim or suit based upon
any infringement or alleged infringement of any patent, trademark, copyright,
trade secret or other intellectual property rights by the reasonably foreseeable
alteration by Indemnified Party of any USWD Products furnished by USWD and by
the foreseeable combination of any USWD Products furnished by USWD and other
elements.
10.1.3 USWD shall, at USWD's expense, respond to, and assist Indemnified Party
to respond to, informal and formal allegations, notifications and claims of
infringement in connection with the USWD Products furnished hereunder or as
contemplated hereby and will assist Indemnified Party to evaluate the merits of
any such allegations, notifications or claims.
10.1.4 USWD further agrees to coordinate, form, and cooperate in a joint defense
with other vendors that supply Products to Indemnified Party that are alleged to
commonly or in combination with the USWD Products furnished hereunder or as
contemplated hereby, infringe. The joint defense shall, at its expense, retain
independent outside counsel acceptable to Indemnified Party to coordinate
defense activities. Indemnified Party retains the right to implead USWD in the
event of a suit.
10.2 Payment of Taxes and Indemnification.
-------------------------------------
10.2.1 Neither USWD nor its officers and directors and its associated personnel
and employees (all hereinafter designated "employees") shall be deemed to be
employees of ▇▇▇▇ Atlantic Mobile, it being understood that USWD is an
independent contractor for all purposes and at all times; and USWD shall be
solely responsible for the withholding or payment of all Federal, State and
local Personal Income Taxes, Social Security, Unemployment and Sickness
Disability Insurance and other payroll taxes with respect to its employees,
including contributions from them when and as required by law.
10.2.2 USWD shall defend, indemnify, and save harmless ▇▇▇▇ Atlantic Mobile and
its successors and assigns and its employees and agents and their heirs, legal
representatives and assigns from any and all claims or demands whatsoever,
including the costs, expenses and reasonable attorney's fees (including all
costs and attorney's fees incurred in the enforcement of this
indemnification).incurred on account thereof, that may be made by any person,
specifically including, but not limited to, employees of the USWD, including but
not limited to claims for bodily injury (including death to persons) or damage
to property (including theft) occasioned by or alleged to have been occasioned
by the acts or omissions of USWD, USWD Products, Solutions or Services its
employees or persons furnished by USWD whether negligent or otherwise.
10.2.3 USWD will further indemnify, defend and hold harmless ▇▇▇▇ Atlantic
Mobile for any claims, liabilities, costs, fees, penalties or fines due to any
actions by any of NOVA, MasterCard, VISA, Maverick or any other banking credit
card processing, credit or financial institution based upon a claim against ▇▇▇▇
Atlantic Mobile of violation of any rules, regulations, laws, ordinances or
charters related to banking or credit card processing. Such claims may include,
but are not limited to claims of failure to file any reports, or fulfilling any
registration or audit obligations. This indemnification shall include any
special, indirect, consequential or special damages, except for claims by ▇▇▇▇
Atlantic Mobile of lost profits. 10.2.3 USWD represents and warrants to ▇▇▇▇
Atlantic Mobile that all software, hardware and related services provided by
USWD under this Agreement shall be "Year 2000 Compliant" meaning that (i) they
will perform on and after January 1, 2000 in as good a manner as before such
date, and (ii) they shall at all times manage, manipulate and report data
involving dates (including the year 2000, dates before and after the year 2000,
and single-century and multi-century formulas) without generating incorrect
values or dates or causing an abnormally-ending scenario within an application.
10.2.4 USWD shall defend ▇▇▇▇ Atlantic Mobile at ▇▇▇▇ Atlantic Mobile's request,
against any such liability, claim or demand described in the preceding
paragraph. The foregoing indemnification shall apply whether USWD or ▇▇▇▇
Atlantic Mobile defends such suit or claims and whether the death, injury or
property damage is caused by the sole acts or omissions of USWD or by the
concurrent acts or omissions of ▇▇▇▇ Atlantic Mobile or USWD hereunder. ▇▇▇▇
Atlantic Mobile agrees to notify USWD promptly of any written claim or demands
against ▇▇▇▇ Atlantic Mobile for which USWD is responsible hereunder.
ARTICLE 11 - GENERAL
-------
11.1 Assignment. This Agreement is personal to each party hereto and neither may
assign or otherwise transfer its rights or delegate its duties hereunder without
the prior written consent of the other, which consent shall not be unreasonably
withheld; provided, however, either party may upon written notice to the other
assign any of its rights or obligations hereunder to (i) an Affiliate of the
assigning party or (ii) the purchaser of or successor in interest to all or
substantially all of the assigning party's assets, unless (with respect to an
assignment by USWD) in the reasonable judgment of ▇▇▇▇ Atlantic Mobile the
assignee is a competitor of ▇▇▇▇ Atlantic Mobile, in which case the assignment
by USWD shall not be valid or binding between the parties without ▇▇▇▇ Atlantic
Mobile's prior written consent.
11.2 Amendment. This Agreement and the Schedules and Exhibits attached hereto
shall not be deemed or construed to be modified, amended, or waived, in whole or
in part, except by written agreement duly executed by the parties to this
Agreement.
11.3 Severability. In the event any provision hereof shall be deemed invalid or
unenforceable by any court or governmental agency of competent jurisdiction,
such provision shall be deemed severed from this Agreement and all remaining
provisions shall be afforded full force and effect as if such severed provision
had never been a provision hereof.
11.4 Execution. At the time of execution of this Agreement, the parties shall
cause their authorized officers to execute two original copies of this
Agreement. One executed copy together with one initialed copy of each schedule
and attachment hereto shall be maintained by the parties at their respective
offices.
11.5 Injunctive Relief. The parties recognize and agree that money damages are
an inadequate remedy for breach of the provisions contained in Article 2 and
Article 7 above, and further recognize that such breach would result in
irreparable harm to the party against whom such breach is committed. Therefore,
in the event of a breach or threatened breach of any such provision, the
breaching party may be enjoined from engaging in any activity proscribed by such
provision by a court of competent jurisdiction. Injunctive relief pursuant to
this Section shall be in addition to all remedies available at law or in equity
to a party arising from a breach of such provisions by the other party.
11.6 Excused Performance. The parties shall not be liable for any failure to
perform under this Agreement or any default due to fire, electrical failure,
flood or similar act of God, embargo, or governmental restrictions which prevent
the parties from performing in the normal and usual course of their businesses,
provided they undertake diligent action to cure such failure and mitigate
damage.
11.7 Headings. The headings of this Agreement are intended solely for the
convenience of reference and shall be given no effect in the construction of
this Agreement.
11.8 Number, Gender. The masculine, feminine, singular and plural of any word or
words shall be deemed to include and refer to the gender and number appropriate
in the context.
11.9 Notices. Except as otherwise provided in this Agreement, all notices or
other communications which are required or permitted hereunder shall be in
writing and shall be valid and sufficient if delivered by: a) registered or
certified mail, postage prepaid; b) hand delivery; c) overnight courier prepaid;
or d) via facsimile transmission upon electronic confirmation of receipt, as
follows:
To ▇▇▇▇ Atlantic Mobile:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Director
Wireless Data Distribution
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to: ▇▇▇▇ Atlantic Mobile
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Legal Department
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To USWD: US WIRELESS DATA INC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President of Sales
Phone: ▇▇▇ ▇▇▇-▇▇▇▇
Facsimile:
11.10 Counterparts. This Agreement may be signed in two or more counterparts,
each of which shall be considered an original and which shall, taken together,
constitute this Agreement.
11.11 No Third Party Beneficiaries. Except for the indemnification provisions
contained in Section 10.1, nothing in this Agreement is intended or shall be
construed or interpreted to give any person or entity other than the parties
hereto any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
11.12 Governing Law. This Agreement shall be governed by the law of the State of
New York without reference to its conflict of law rules. With respect to any
judicial action which
may arise under or with respect to this Agreement, each party agrees to waive
trial by jury.
11.13 Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous agreements and understandings, whether written or oral,
between the parties with respect to such subject matter, and there are no
representations, understandings or agreements relating to this Agreement that
are not fully expressed in this Agreement.
11.14 Procedure.
11.14.1 Each party shall appoint an individual from its organization to
interface with the other party on any issues arising out of this Agreement, and
shall promptly notify the other party of such appointment. 11.14.2 ▇▇▇▇ Atlantic
Mobile and USWD will jointly conduct an annual meeting to review performance and
set objectives for the new year.
11.15 No Representations. ▇▇▇▇ Atlantic Mobile shall not make any
representations or warranties to third parties on behalf of USWD, and if any
such representations or warranties are made they shall have no force or effect
on USWD. USWD shall not make any representations or warranties to third parties
on behalf of ▇▇▇▇ Atlantic Mobile, and if any such representations or warranties
are made they shall have no force or effect on ▇▇▇▇ Atlantic Mobile.
11.16 Trademark Guidelines. Each party hereto shall comply with the other
party's reasonable written guidelines with respect to the use of such other
party's trademarks and/or service marks and for quality control in connection
with such party's trademarked Products and/or service-marked services.
ARTICLE 12 - ACKNOWLEDGEMENTS AND REPRESENTATIONS.
-------------------------------------
USWD acknowledges that it has not received or relied upon, any guaranty,
express or implied, as to the amount of commissions or other revenue that it may
earn as a result of its relationship with ▇▇▇▇ Atlantic Mobile. USWD represents
and warrants that: 12.1 the execution, delivery and/or performance of this
Agreement will not conflict with or result in any breach of any provision of the
charter or by-laws of USWD or any agreement, contract or legally binding
commitment or arrangement to which USWD is a party, and 12.2 USWD is not subject
to any limitation or restriction (including, without limitation, noncompetition,
and confidentiality arrangements) which would prohibit, restrict or impede the
performance of any of USWD's obligations under this Agreement.
This Agreement does not constitute a joint venture, partnership,
employment, or similar relationship among the parties, and, unless authorized in
writing, neither ▇▇▇▇ Atlantic Mobile nor USWD shall make any express or implied
agreements, guarantees or representations, or incur any indebtedness or
obligations, in the name of or on behalf of the other.
ARTICLE 13 - INDEPENDENT INVESTIGATION.
--------------------------
▇▇▇▇ ATLANTIC MOBILE AND USWD ACKNOWLEDGE THEY HAVE READ THIS
AGREEMENT AND UNDERSTAND AND ACCEPT THE TERMS, CONDITIONS, AND COVENANTS
CONTAINED HEREIN AS BEING REASONABLY NECESSARY TO MAINTAIN ▇▇▇▇ ATLANTIC
MOBILE'S HIGH STANDARDS FOR SERVICE. USWD ACKNOWLEDGES AND UNDERSTANDS THAT ▇▇▇▇
ATLANTIC MOBILE MAY AT ANY TIME ALSO BE ENGAGED DIRECTLY OR INDIRECTLY THROUGH
ITS DIRECT SALES FORCE, AGENTS, OTHER RETAILERS, OR OUTLETS OF ANY KIND, IN
SOLICITING POTENTIAL SUBSCRIBERS FOR THE SERVICE OR OTHER SERVICES OR PRODUCTS
OR FOR THE SALE, LEASE, INSTALLATION, REPAIR, OR SERVICING OF EQUIPMENT IN THE
MARKET. USWD ALSO ACKNOWLEDGES AND UNDERSTANDS THAT ▇▇▇▇ ATLANTIC MOBILE MAY
SELL THE SERVICE TO OTHERS WHO MAY RESELL IT. USWD HAS INDEPENDENTLY
INVESTIGATED THE CELLULAR SERVICE OR EQUIPMENT SALES BUSINESS AND THE
PROFITABILITY (IF ANY) AND RISKS THEREOF AND IS NOT RELYING ON ANY
REPRESENTATION, GUARANTEE, OR STATEMENT OF ▇▇▇▇ ATLANTIC MOBILE OTHER THAN AS
SET FORTH IN THIS AGREEMENT.
IN PARTICULAR, USWD ACKNOWLEDGES THAT ▇▇▇▇ ATLANTIC MOBILE HAS
NOT REPRESENTED: (A) USWD'S PROSPECTS OR CHANCES FOR SUCCESS SELLING SERVICES
UNDER THIS AGREEMENT; (B) THE TOTAL INVESTMENT THAT USWD MAY NEED TO MAKE TO
OPERATE UNDER THIS AGREEMENT (▇▇▇▇ ATLANTIC MOBILE DOES NOT KNOW THE AMOUNT OF
THE TOTAL INVESTMENT THAT MAY BE REQUIRED FOR THIS PURPOSE); OR (C) THAT IT WILL
LIMIT ITS EFFORTS TO SELL SERVICE OR ESTABLISH OTHER AGENTS OR RETAILERS IN THE
AREA.
USWD ALSO ACKNOWLEDGES THAT ▇▇▇▇ ATLANTIC MOBILE HAS NOT
REPRESENTED TO IT THAT: (A) ▇▇▇▇ ATLANTIC MOBILE WILL PROVIDE LOCATIONS OR
ASSIST USWD TO FIND LOCATIONS TO PROMOTE THE SALE OF SERVICE UNDER THIS
AGREEMENT; (B) ▇▇▇▇ ATLANTIC MOBILE WILL PURCHASE ANY PRODUCTS MADE BY USWD THAT
ARE IN ANY WAY ASSOCIATED WITH THE SERVICE SOLD BY USWD UNDER THIS AGREEMENT;
(C) USWD WILL DERIVE INCOME FROM THE SALE OF ▇▇▇▇ ATLANTIC MOBILE'S SERVICES
UNDER THIS AGREEMENT, OR ▇▇▇▇ ATLANTIC MOBILE WILL REFU ANY PAYMENTS MADE BY
USWD TO ▇▇▇▇ ATLANTIC MOBILE UNDER THIS AGREEMENT; OR (D) ▇▇▇▇ ATLANTIC MOBILE
WILL PROVIDE A SALES OR MARKETING PROGRAM THAT WILL ENABLE USWD TO DERIVE INCOME
UNDER THIS AGREEMENT.
USWD FURTHER ACKNOWLEDGES THAT ▇▇▇▇ ATLANTIC MOBILE HAS NOT MADE
ANY REPRESENTATIONS REGARDING: (A) THE QUANTITY OR QUALITY OF SERVICE TO BE SOLD
BY USWD OTHER THAN AS STATED IN THIS AGREEMENT; (B) THE PROVISION BY ▇▇▇▇
ATLANTIC MOBILE TO USWD OF TRAINING AND MANAGEMENT ASSISTANCE; (C) THE AMOUNT OF
PROFITS, NET OR GROSS, THAT USWD CAN EXPECT FROM ITS OPERATIONS UNDER THIS
AGREEMENT; (D) THE SIZE (OTHER THAN THE GEOGRAPHIC AREA), CHOICE POTENTIAL, OR
DEMOGRAPHIC NATURE OF THE MARKET IN WHIC ▇▇▇▇ ATLANTIC MOBILE'S SERVICE IS
AVAILABLE OR THE NUMBER OF OTHER RETAILERS OR AGENTS THAT ARE OR MAY IN THE
FUTURE OPERATE IN THAT AREA, OR (E) THE TERMINATION, TRANSFER OR RENEWAL
PROVISIONS OF THIS AGREEMENT OTHER THAN AS SET FORTH IN THE AGREEMENT. USWD
ACKNOWLEDGES THAT IT UNDERSTANDS THAT IT WILL NOT OBTAIN ANY EXCLUSIVE RIGHTS
UNDER THIS AGREEMENT EITHER WITH RESPECT TO TERRITORY OR OTHERWISE, AND
UNDERSTANDS THAT ▇▇▇▇ ATLANTIC MOBILE MAY APPOINT OTHER AGENTS OR RETAILERS IN
THE MARKET AFFECTED BY THIS AGREEMENT. USWD ALSO ACKNOWLEDGES THAT ▇▇▇▇ ATLANTIC
MOBILE CANNOT CALCULATE IN ADVANCE THE TOTAL AMOUNT THAT ▇▇▇▇ ATLANTIC MOBILE
WILL PAY TO USWD UNDER THIS AGREEMENT AS THAT AMOUNT DEPENDS ON THE QUANTITY OF
SERVICE THAT SUBSCRIBERS PURCHASE FROM ▇▇▇▇ ATLANTIC MOBILE. ARTICLE 14 -
LIMITED LIABILITY
▇▇▇▇ ATLANTIC MOBILE SHALL NOT BE LIABLE TO USWD FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO
LOST PROFITS, LOST BUSINESS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER SUCH
DAMAGES ARE CLAIMED FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE AND WHETHER
OR NOT ▇▇▇▇ ATLANTIC MOBILE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE 15 - RESOLUTION OF DISPUTES/ARBITRATION 15.1 The parties agree and
acknowledge that as a precondition to pursuing any type of claim against the
other party arising from this Agreement, or any previous or other Agreement
between the parties, irrespective of the claim or cause of action, the aggrieved
party shall provide the other party with written notice. The parties shall
subsequently, and within thirty (30) days of such notice, negotiate in good
faith a resolution of the alleged claim and type of remedy sought.
15.2 Any disputed claim or other such dispute arising out of or related to this
Agreement or any previous or other Agreement between the parties which cannot be
resolved by subsection 14.1 above, shall be settled by binding arbitration. The
parties further agree that judgement may be entered upon the award in any court
having jurisdiction thereof.
15.3 If either party commences arbitration in the manner described above, the
dispute will be subject to expedited, binding arbitration before one (1)
independent arbitrator familiar with the wireless telecommunications industry.
Such arbitration shall be held in New York City, New York pursuant to the
American Arbitration Association ("AAA") Rules in effect at the time of the
dispute. The arbitrator shall be selected by the joint agreement of the parties,
but if they do not so agree within fourteen (14) days after the date of the
notice referred to above, the selection shall be made by AAA pursuant to the AAA
Rules. Any award rendered by the arbitrator shall be conclusive and binding upon
the parties hereto; provided, however, that any such award shall be accompanied
by a written opinion of the arbitrator giving the reasons for the award. The
arbitrator shall have the authority to require the submission (at hearing or
otherwise) of such documents, information, testimony, and other items as the
arbitrator may deem necessary to make a fair and reasonable decision. The
findings of the arbitrator may not change the express terms of this Agreement
and shall be consistent with the arbitrator's understanding of the findings a
court of proper jurisdiction would make in applying the applicable law to the
facts underlying the dispute. This provision for arbitration shall be
specifically enforceable by the parties and the decision of the arbitrator in
accordance herewith shall be final and binding and there shall be no right of
appeal therefrom. Each party shall pay its own expenses of arbitration and the
expense of the arbitrator shall be shared equally; provided, however, that if in
the opinion of the arbitrator any party's delay in the arbitration process was
unreasonable, the arbitrator may assess, as part of the award, all or any part
of the arbitration expenses of the other party (including reasonable attorneys'
fees) and of the arbitrator against the party causing such unreasonable delay.
In no event whatsoever shall such an arbitration award include an award of
punitive damages and the parties hereby waive the right to recover punitive
damages. All applicable statutes of limitation and defenses based upon the
passage of time shall be tolled while the procedures specified in this Section
14 are pending. The parties will take such actions, if any, required to
effectuate such tolling. The parties will not be prohibited from seeking
injunctive relief to preserve the status quo pending resolution under this
provision. The arbitration shall be governed by the United States Arbitration
Act, 9 USC 1-16, as amended. In the event of any conflict between the United
States Arbitration Act and the AAA, the AAA shall govern.
15.4 ALL DISCUSSIONS AND DOCUMENTS PREPARED PURSUANT TO ANY ATTEMPT TO RESOLVE A
DISPUTE UNDER THIS PROVISION ARE CONFIDENTIAL AND FOR SETTLEMENT PURPOSES ONLY
AND SHALL NOT BE ADMITTED IN ANY COURT OR OTHER FORUM AS AN ADMISSION OR
OTHERWISE AGAINST A PARTY FOR ANY PURPOSE INCLUDING THE APPLICABILITY OF FEDERAL
AND STATE COURT RULES.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement in counterparts on the day and year written below.
CELLCO PARTNERSHIP
by ▇▇▇▇ Atlantic Mobile, Inc.
its managing general partner US WIRELESS DATA INC
By: /s/ ▇▇▇▇ Plating By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------- ----------------------
Name: ▇▇▇▇ Plating Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: EVP & COO Title: Vice President, Sales
Date: 3/23/98 Date: March 20, 1998
EXHIBIT A
▇▇▇▇ ATLANTIC MOBILE PRIMARY SERVING MARKETS
Market Name
MSAs Licensed
New York/New Jersey MSA
Philadelphia, PA-NJ MSA
Washington, DC-MD MSA
Pittsburgh, PA MSA
Baltimore, MD MSA
Allentown, PA-NJ MSA
New Brunswick, NJ MSA
Wilmington, DE-NJ MSA
Long Branch, NJ MSA
Reading, PA MSA
Trenton, NJ MSA
Atlantic City, NJ MSA
Vineland, NJ MSA
Boston, MA MSA
Manchester, NH MSA
Poughkeepsie, NY MSA
Orange, NY MSA
▇▇▇▇ Falls NY MSA
Burlington, VT MSA
Providence, RI MSA
New Haven, CT MSA
Charlotte, NC MSA
Springfield, MA MSA
Greenville, SC MSA
New Bedford, MA MSA
Columbia, SC MSA
New London-Norwich, CT MSA
Hickory, NJ MSA
Pittsfield, MA MSA
Anderson, SC MSA
Hartford, CT MSA
RSAs Licensed
Delaware 1 - KENT
Georgia 2 - ▇▇▇▇▇▇
Maryland 2 - KENT
Maryland 3 - ▇▇▇▇▇▇▇▇▇
New Jersey 1 - HUNTERDON
New Jersey 2 - OCEAN
New Jersey 3 - SUSSEX
Pennsylvania 2 - MCKEAN
Pennsylvania 6 - ▇▇▇▇▇▇▇▇ (B2)
Pennsylvania 7 - JEFFERSON
Pennsylvania 9 - ▇▇▇▇▇▇
Pennsylvania 11 - HUNTINGDON
North Carolina 1 - CHEROKEE
Massachusetts 2 - BARNSTABLE
New Hampshire 2 - ▇▇▇▇▇▇▇ Vermont 1 - FRANKLIN
Vermont 2 - ADDISON
Connecticut 2 - ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 4 - HENDERSON
North Carolina 5 - ANSON
North Carolina ▇▇ - ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1 - OCONEE
South Carolina 2 - NEWBERRY
South Carolina 3 - CHEROKEE
South Carolina 7 - ▇▇▇▇▇▇▇
South Carolina 9 - LANCASTER
Virginia 1 - ▇▇▇
Virginia 10 - ▇▇▇▇▇▇▇▇▇ (B1)
Virginia 11 - MADISON
Virginia 12 - CAROLINE
West ▇▇▇▇▇▇▇▇ 1 - MASON
West ▇▇▇▇▇▇▇▇ 2 - ▇▇▇▇▇▇
Affirmative Action Exhibit B
An Equal Opportunity Employer
NON-DISCRIMINATION COMPLIANCE AGREEMENT
To the extent this contract is subject to them, Contractor shall comply with the
applicable provisions of the following: Exec. Order No. 11246, Exec. Order No.
11625, Exec. Order No. 12138, Exec. Order No. 11701, Exec. Order No. 11758,
Section 503 of the Rehabilitation Act of 1973, Section 402 of the Vietnam Era
Veterans' Readjustment Assistance Act of 1974 and the rules, regulations and
relevant Orders of the Secretary of Labor pertaining to the Executive Orders and
Statutes listed above. The following table describes the clauses which are
included in the contract.
Annual Contract Value Clauses
Under $2,500 5*
$2,500 - $10,000 5*, 8
$10,000 - $50,000 1,2,5*,6,7,8,9
$50,000 - $500,000 1,2,3**,4**,5,6,7,8,9
Over $500,000 1,2,3**,4**, 5,6,7,8,9***
1. Equal Employment Opportunity Provisions
In accordance with Executive Order 11246, dated September 24, 1965, and
Subpart 22.8 of Subchapter D of Chapter 1 of Title 48 of the Code of Federal
Regulations as may be amended from time to time, the parties incorporate herein
by this reference the regulations and contract clauses required by those
provisions to be made a part of government contracts and subcontracts.
2. Certification of Non-segregated Facilities
The Contractor certifies that it does not and will not maintain any
facilities it provides for its employees in a segregated manner, or permit its
employees to perform their services at any location under its control where
segregated facilities are maintained; and that it will obtain a similar
certification prior to the award of any nonexempt subcontract.
3. Certification of Affirmative Action Program
The Contractor affirms that it has developed and is maintaining an
Affirmative Action Plan as required by Subpart 22.8 of Subchapter D. of Chapter
1 of Title 48 of the Code of Federal Regulations.
4. Certification of Filing of Employer Information Reports
The Contractor agrees to file annually on or before the 31st of March
complete and accurate reports on Standard Form 100 (EEO-1) or such forms as may
be promulgated in its place.
5. Utilization of Small Business Concerns and Small Disadvantage Business
Concerns
(a) It is the policy of the United States that small business concerns
owned and controlled by socially and economically disadvantaged
individuals shall have the maximum practicable opportunity to
participate in performing contracts let by any Federal agency.
(b) The Contractor hereby agrees to carry out this policy in the awarding
of subcontractors to the fullest extent consistent with efficient
contract performance. The Contractor further agrees to cooperate in
studies or surveys as may be conducted by the United States Small
Business Administration or the awarding agency of the United States as
may be necessary to determine the extent of the Contractor's
compliance with this clause.
(c) As used in this contract, the term "small business concern" shall mean
a small business as defined pursuant to Section 3 of the Small
Business Act and relevant regulations promulgated pursuant thereto.
The term "small business concern owned and controlled by socially and
economically disadvantaged individuals" shall mean a small business
concern.
(1) Which is at least 51 percent owned by one or more socially
and economically disadvantaged individuals; or, in the case of
any publicly owned business, at least 51 percent of the stock of
which is owned by one or more socially and economically
disadvantaged individuals; and
*Applies only if contract has further subcontracting opportunities.
**Applies only to businesses with 50 or more employees.
***Contractor must also adopt and comply with a small business disadvantaged
business subcontracting plan pursuant to Title 48 of the Code of Federal
Regulations.
(2) Whose management and daily business operations are controlled
by one or more of such individuals;.
The Contractor shall presume that socially and economically disadvantaged
individuals include Black Americans, Hispanic American, Native Americans,
Asian-Pacific Americans, Asian-Indian Americans and other minorities, or any
other individual found to be disadvantaged by the Administration pursuant to
section 8(a) of the Small Business Act.
(d) Contractors acting in good faith may rely on written representations
by their subcontractors regarding their status as either a small
business concern or a small business concern owned and controlled by
socially and economically disadvantaged individuals.
6. Utilization of Women-Owned Small Businesses
(a) "Women-Owned small businesses," as used in this clause, means
businesses that are at least 51 percent owned by women who are United
States citizens and who also control and operate the business.
"Control," as used in this clause, means exercising the power to make
policy decision.
"Operate," as used in this clause, means being actively involved in
the day-to-day management of the business.
(b) It is the policy of the United States that women-owned small
businesses shall have the maximum practicable opportunity to
participate in performing contracts awarded by any Federal agency.
(c) The Contractor agrees to use its best efforts to give women-owned
small business the maximum practicable opportunity to participate in
the subcontracts it awards to the fullest extent consistent with the
efficient performance of its contract.
7. Affirmative Action for Special Disabled Veterans and Veterans of the Vietnam
Era
In accordance with Exec. Order 11701, dated January 24, 1973, and
subpart 22.13 of Subchapter D of Chapter 1 of Title 48 of the Code of Federal
Regulations, as may able amended from time to time, the parties incorporate
herein by the reference the regulations and contract clauses required by those
provisions to be made a part of Government contracts and subcontracts.
8. Affirmative Action for Handicapped Workers
In accordance with Exec. Order 11758, dated January 15, 1974, and
Subpart 221.4 of Subchapter D of Chapter 1 of Title 48 of the code of Federal
Regulations as may be amended from time to time, the parties incorporate herein
by this reference the regulations and contract clauses required by those
provisions to be made a part of Government contracts and subcontracts.
9. Employment Reports on Special Disabled Veterans and Veterans of the Vietnam
Era
(a) The contractor agrees to report at least annually, as required by
the Secretary of Labor, on:
(1) The number of special disabled veterans and the number of
veterans of the Vietnam era in the workforce of the contractor by
job category and hiring location; and
(2) The total number of new employees hired during the period
covered by the report, and of that total, the number of veterans
of the Vietnam era.
(b) The above items shall be reported by completing the form entitled
"Federal Contractor Veterans" Employment Report VETS-100."
(c) Reports shall be submitted no later than March 31 of each year
beginning March 31, 1988.
(d) The employment activity report required by paragraph (a)(2) of this
section shall reflect total hires during the most recent 12-month period as of
the ending date selected for the employment profile report required by paragraph
(a)(1) of this section. Contractors may select an ending date:(1) as of the end
of any pay period during the period January through March 1st of the year the
report is due, or (2) as of December 31, if the contractor has previous written
approval form the Equal Employment Opportunity Commission to do so for purposes
of submitting the Employer Information Report EEO-1 (Standard Form 100).
(e) The count of veterans reported according to paragraph (a) above
shall be based on voluntary disclosure. Each contractor subject to the reporting
requirements at 38 U.S.C. 2012(d) shall invite all special disabled veterans and
veterans of the Vietnam era who wish to benefit under the affirmative action
program at 38 U.S.C. 2012 to identify themselves to the contractor. The
invitation shall state that the information is voluntarily provided, that the
information will be kept confidential, that disclosure or refusal to provide the
information will not subject the applicant or employee to any adverse treatment,
and that the information will be used only in accordance with the regulations
promulgated under 38 U.S.C. 2012. Nothing in this paragraph (e) shall relieve a
contractor from liability for discrimination under 38 U.S.C. 2012.
PAGE 2
JNT CDPD NON COM RVD 71096 US WIRELESS DATA INC
draft October 16, 1997 ###-##-####
JNT CDPD NON COM RVD 111097 US WIRELESS DATA INC
###-##-####
JNT CDPD NON COM RVD 121297 US WIRELESS DATA INC
Final 3/19/98 ###-##-####
JNT CDPD NON COM RVD 121297 US WIRELESS DATA INC
Final 3/19/98 ###-##-####