Exhibit 10.28
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
___________________________________________________________ ("Reseller"), a
____________________ 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
__________ (__) year(s) 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
--------------------------------
"Reseller"
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By: By:
----------------------------- -----------------------------
Title: Title:
-------------------------- --------------------------
Date: Date:
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Terms and Conditions
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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 correlative
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 Person 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 reasonably 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 separate legal identity.
(h) PIN: A unique, Subscriber specific, personal identification number
or other form of identification 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 listed in Exhibit C attached hereto, as Exhibit C may be amended from time
to time.
(k) SkyTel Network: Collectively, the wireless messaging systems owned
and operated by Destineer and its Affiliates to provide the Services.
(l) Services or SkyTel Services: The wireless messaging service
offerings provided by Destineer and its Affiliates as more fully described in
Exhibit D attached hereto. Notwithstanding anything to the contrary herein,
Destineer may modify, add or discontinue its Services offerings upon notice to
Reseller at least ninety (90) days prior to the effective date of such action.
(m) Subscriber: A customer of Reseller that, by virtue of the reseller
relationship established hereunder, is an end-user of the Services.
(n) UIS or Unit in Service: A revenue generating Device that is
activated by Reseller on the SkyTel Network to receive the Services.
2. Authority.
(a) Destineer grants Reseller a non-exclusive right to resell the
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 Services to Subscribers. The right and
authority granted herein is subject to and conditioned upon Reseller's
satisfaction of Destineer's standard credit review policies and procedures.
(b) As a condition to the rights and authority granted herein,
Reseller shall activate at least 250 UIS within twelve (12) months following the
Effective Date and shall maintain at least 250 UIS throughout the remainder of
the term of the Agreement.
(c) Notwithstanding the provisions of Section 2(a) above, all
personnel of Reseller involved in the promotion, marketing and sale of 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 use and
utilization of such Services in accordance with the provisions set forth in
Exhibit A-1 attached hereto.
(d) Notwithstanding anything to the contrary herein, Destineer and its
Affiliates expressly reserve the right to promote, solicit, market and sell the
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 Services in accordance
with the pricing schedules 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 anything to the contrary herein, Destineer reserves the right to
modify the fees and charges set forth in Exhibit E; provided, however, that (i)
Destineer may not increase such fees and charges until expiration of the Initial
Term, and (ii) Destineer may increase such fees and charges only upon at least
thirty (30) days' advance written notice to Reseller. Prices charged by Reseller
to Subscribers for the 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 within thirty (30) days following the date of Destineer's invoice.
Any balance not paid by such due date shall bear interest from and after the due
date at the lesser of one and one half percent (1 1/2%) per month or the maximum
rate allowed by law. All sales, use and other such governmentally imposed or
authorized taxes, fees, surcharges and/or assessments relating to this
Agreement, the Services and/or the Devices 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 OF CREDIT/PAYMENT SECURITY PROVISION, IF APPLICABLE]
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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 Services are adequately trained, prior to the commencement
of any such operations, and are competent to perform their respective duties.
(b) In providing the Services to its Subscribers, Reseller shall
comply with all laws, rules and regulations 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) 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 Services to Subscribers or
otherwise make any claims, representations or warranties in connection with the
Services other than expressly authorized by Destineer.
(e) Destineer shall have the right to approve the form of agreement
used by Reseller in connection with its provision of the Services to its
Subscribers. Such form of agreement shall include, among other provisions,
disclaimers and limitations of liabilities consistent with the provisions set
forth in Section 9 below. Any changes by Reseller to the form of such agreements
shall be subject to the prior consent of Destineer.
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 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
within the continental United States, Alaska and Hawaii, and shall ensure that
the 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 Services. All Devices placed
in service on the SkyTel Network by or through Reseller shall comply with the
provisions of this Agreement. Notwithstanding anything to the contrary herein,
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 its Affiliates, within
thirty-six (36) months following the effective date of the revision to Exhibit
B, and (ii) for Devices utilized on the Advanced Messaging network owned and
operated by Destineer and its Affiliates, within forty-eight (48) months
following the effective date of the revision to Exhibit B.
(b) Procurement. Reseller shall bear all responsibility for
procurement of Devices provided by Reseller to Subscribers for use on the SkyTel
Network. Destineer shall have no obligation to provide Devices to Reseller or
its Subscribers.
(c) Activation. All Devices activated on the SkyTel Network by
Reseller shall be coded and activated only in accordance with directives,
policies and procedures established by Destineer, which, with respect to the
Advanced Messaging network owned and operated by Destineer and its 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 to
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 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. Branding. Reseller shall have no right or authority to market, promote
or sell the 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-3 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.
(a) EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN, DESTINEER AND ITS
AFFILIATES MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, CONCERNING THE
SERVICES, THE SKYTEL NETWORK, THE DEVICES 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 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, SUBSCRIBERS, FOR INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES, LOST
PROFITS, LOST SAVINGS, OR ANY OTHER FORM OF 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) Reseller acknowledges that the term "Guaranteed Delivery" (or
terms of similar connotation), as used in conjunction with the Services provided
over the
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Terms and Conditions
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Advanced Messaging network, refers to certain technical functionality of the
network and the ability of the network to repeatedly deliver messages to a
Device for a predetermined period until receipt is acknowledged, as well as the
ability of the network to make undelivered messages available for retrieval.
Reseller further acknowledges that Destineer's and its Affiliates' use of any
such term does not constitute a representation or warranty, express or implied,
regarding any of the Services.
10. Term.
(a) The Initial Term of this Agreement shall be as specified on the
signature page of this Agreement. Upon expiration of the Initial Term, the term
of this Agreement shall automatically renew (i) until December 31 of the year in
which the Initial Term expires and (ii) for additional, successive one (1) year
terms as of each January 1 thereafter, 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) 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 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 the benefit of
creditors, appointment or sufferance of appointment of a trustee, a receiver or
similar officer, or commencement of a proceeding seeking reorganization,
rehabilitation, liquidation or similar relief under the bankruptcy, insolvency
or similar debtor-relief statutes.
(b) Upon the occurrence of an Event of Default, the party not in
default 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 to the contrary, Destineer shall have the right, at its option, to
immediately terminate this Agreement, without further notice or right to cure,
upon the occurrence of any second or subsequent Default under Section 3(c) above
within any given twelve (12) month period.
(c) In the event of termination of this Agreement by Destineer due to
the occurrence of an Event of Default by Reseller, Destineer and its Affiliates
shall have the absolute right, without notice to Reseller, to take whatever
action Destineer deems necessary or advisable to solicit the business of such
Subscribers for the benefit of Destineer and its Affiliates.
12. Assignment. This Agreement, including any rights or obligations under
this Agreement, may not be assigned or transferred, directly or indirectly, by
either of the parties to any other Person without the prior written consent by
the other party. In the event of any assignment or transfer of this Agreement,
all terms and conditions hereof shall be binding upon and inure to the assignee
as though such assignee were an original party hereto. For purposes of this
provision, an "assignment" or "transfer" shall mean and include, without
limitation, (a) any voluntary or involuntary assignment by Reseller by 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 any controlling
Affiliate of Reseller that occurs by reason of (i) the sale of a 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 $1,000,000.00,
which shall cover bodily injury (including death) and property damage. Purchase
and maintenance of such insurance shall not be construed as relieving Reseller
of any of its obligations hereunder.
14. Confidentiality. 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
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Mtel Centre South, Suite 1000
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Senior Vice President, Wholesale Distribution
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Terms and Conditions
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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 could not
have been reasonably anticipated by the non-performing party as of the Effective
Date and that cannot be reasonably avoided or overcome; provided that the non-
performing party gives the other party prompt written notice of such cause
promptly, and in any event within fifteen (15) calendar days of discovery
thereof.
(c) Independent Parties. None of the provisions of this Agreement shall
be deemed to constitute a partnership, joint venture, or any other such
relationship between the parties hereto, and neither party shall have any
authority to bind the other in any manner. Neither party shall have or hold
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 specifically
authorized in this Agreement.
(d) Applicable Law. The validity, construction and performance of this
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 law.
(e) Attorneys' Fees. If any action shall be brought on account of any
breach of or to enforce or interpret any of the terms, covenants or conditions
of this Agreement, the prevailing party shall be entitled to recover from the
other, as part of the prevailing party's costs, a reasonable attorneys' fee
(f) Severability. If any provision of this Agreement shall be held to be
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 in
any way be affected or impaired thereby.
(g) No Waiver. No delay or failure by either party 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 to enforce any
right under this Agreement will not be deemed a waiver of future enforcement of
that or any other right.
(h) 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.
(i) 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.
(j) 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 draftsmanship of the Agreement or otherwise.
(k) 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 the parties or any of their respective 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 February 17, 1999
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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: License Rights
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Exhibit A-1
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Exhibit A-1
Training
1. As a condition of the rights granted to Reseller hereunder to resell
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 program established by Destineer for resellers of such
Services. Only such personnel of Reseller that have completed such training
program to the satisfaction of Destineer may represent Reseller in the sale and
support of such Services. Such training 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
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 programs for Reseller's employees on behalf
of Destineer. To the extent requested by Reseller, Destineer shall also conduct
training programs for Reseller's other personnel; provided, however, that, in
such an event, Reseller shall bear all costs and expenses associated with such
training programs, shall reimburse Destineer for all reasonable out-of pocket
travel and lodging expenses, and shall compensate Destineer for such efforts in
accordance with its then current time and materials rates and charges, which
rates and charges Destineer shall make available to Reseller upon request.
3. To the extent requested by Reseller, Destineer shall also conduct, at times
and locations mutually agreeable to Reseller and Destineer, training sessions
for employees of Reseller involved in the promotion, marketing and sale of 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 compensate
Destineer for such efforts in accordance with its then current time and
materials rates and charges, which rates and charges Destineer shall make
available to Reseller upon request.
Revised February 17, 1999
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Exhibit A-2
Page 1 of 1
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 $2.00 per call times the number of Subscriber PINs covered by the
call.
Revised October 10, 1996
CONFIDENTIAL
Exhibit A-3
Page 1 of 1
Exhibit A-3
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 solely in
connection with the marketing, advertisement and promotion of the 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, unenforceability, 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 $1.00 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 review Reseller's books and records for the
purpose of verifying the accuracy of the accounting for royalties paid to
Destineer in accordance with this Exhibit A-3. 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 five percent (5.0%) of the aggregate
royalties 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 ten percent (10.0%) 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 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. The failure of Reseller to abide by and comply with any of the provisions
set forth in this Exhibit A-3 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 February 17, 1999
CONFIDENTIAL
Exhibit B
Page 1 of 1
Exhibit B
Authorized Devices*
----------------------------------------------------------------------------------------------------------------
Manufacturer Model Equipment Type Baud Rate
----------------------------------------------------------------------------------------------------------------
One-Way Network:
Motorola Bravo/TM**/ POCSAG Numeric 1200
Motorola Bravo Plus/**/ POCSAG Numeric 1200
Motorola Advisor/TM**/ POCSAG Alphanumeric 1200
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 FLX/TM/ Numeric-Flex 6400
Motorola Express Extra FLX/TM/ Numeric-Flex 6400
Motorola Digitz/TM/ Numeric-Flex 6400
Motorola Jazz/TM/ Numeric-Flex 6400
NEC Exec Numeric-Flex 6400
Sony MP 1000 Numeric-Flex 6400
Motorola Advisor Gold FLX/TM/ Alphanumeric-Flex 6400
Motorola Wordline FLX/TM/ Alphanumeric-Flex 6400
Motorola/Timex Beepwear/TM/ Alphanumeric-Flex 6400
Advanced Messaging Network:
Motorola PageFinder/TM/ Alphanumeric-Reflex 6400
Motorola PF1500/TM/ Alphanumeric-Reflex 6400
Motorola Tango/TM/ Alphanumeric-Reflex 6400
Motorola PageWriter 2000/TM/ Alphanumeric-Reflex 6400
Wireless Access AccessMate/TM/ Alphanumeric-Reflex 6400
Wireless Access AccessLink/TM/ Alphanumeric-Reflex 6400
Wireless Access AccessLink II/TM/ Alphanumeric-Reflex 6400
----------------------------------------------------------------------------------------------------------------
Notes:
* Listing is not necessarily exhaustive. Non-listed pagers that equal or
exceed the specifications of the "flex" and/or "reflex" Devices listed in
the above may be activated on the SkyTel Network with proper authorization.
** May only be used by Subscribers authorized to receive International Service
in non-Flex capable countries.
Revised February 17, 1999
CONFIDENTIAL
Exhibit C
Page 1 of 1
Exhibit C
SkyTel Marks
1. Nationwide Now(R)
2. SkyPager(R)
3. SkyReply(R)
4. SkyTalk(R)
5. SkyTel(R)
6. SkyTel logo(R) (one-way and two-way)
7. SkyTel 2-Way/SM/
8. SkyTel Access(R) Software
9. SkyTel Quick Access/TM/ Software
10. SkyWord(R)
11. SkyWord(R) Plus
12. SkyWord Access(R) Software
13. SkyWriter(R)
Revised February 17, 1999
CONFIDENTIAL
Exhibit D
Page 1 of 2
Exhibit D
SkyTel Services
I. ONE-WAY SERVICES:
A. Basic Services: Basic Services presently consist of those services
described below.
1. SkyPager: Numeric service.
2. SkyWord: Alphanumeric service.
B. Enhanced Services: Enhanced Services presently consist of those
services described below.
1. Operator Dispatch: Operator assistance to generate alphanumeric
messages.
2. Page Recall: Allows end-user to retrieve messages transmitted
within the last 99 hours at no additional charge.
3. Voice Mail: Voice mailbox that accepts detailed messages from
callers and notifies the end-user that a message has been
received.
4. Informational Services:* News headlines and other informational
services.
5. Nationwide Now: End-user may temporarily expand Regional or Metro
coverage to Nationwide coverage.
6. Caller ID: Provides caller identification when numeric or Voice
Mail message sent to alphanumeric Service plan. Not available
with SkyPager Services.
7. International Service: Provision of the Services over the global
messaging network owned and operated by Destineer's Affiliates in
selected countries throughout the world.
8. Personal 800/888 Access Number: Allows the message sender to dial
the end-user directly, without having to enter a separate PIN
through use of a general access number.
C. Coverage:
1. Nationwide: Covers service areas in all fifty (50) states.
2. Regional: Divides country into six (6) zones; end-user may select
any (1) zone. Regions include East, Central, West, Southeast,
Midwest and Southwest.
3. Metro: Covers selected metropolitan areas.
CONFIDENTIAL
Exhibit D
Page 2 of 2
II. ADVANCED MESSAGING SERVICES:
A. Basic Services: Basic Services presently consist of those services
described below.
1. SkyWord Plus: Alphanumeric services that ensure message delivery
through confirmation from the network operations center and a
store and forward platform. For example, if a SkyWord Plus end-
user is temporarily out of coverage, has his/her pager turned
off, etc., messages transmitted to the end-user will be
automatically stored and delivered when he/she returns to a full
service coverage area or turns his/her pager back on. SkyWord
Plus services are also equipped with a feature that detects
errors in message transmissions and automatically retransmits
corrected messages.
2. SkyWriter: Alphanumeric services that consist of SkyWord Plus
capabilities plus the additional ability for the end-user to
compose and transmit text messages directly from the messaging
device, either in response to a message received or as an
original message.
B. Enhanced Services: Enhanced Services presently consist of those
services described below.
1. Operator Dispatch: Operator assistance to generate alphanumeric
messages.
2. Page Recall: Allows end-user, at no additional charge, to
retrieve messages transmitted within the last 99 hours for
SkyWord Plus services and within the last 72 hours for SkyWriter
services.
3. Voice Mail: Voice mailbox that accepts detailed messages from
callers and notifies the end-user that a message has been
received.
4. Informational Services:* News headlines and other informational
services.
5. Caller ID: Provides caller identification when numeric or Voice
Mail message sent to end-user.
6. SkyReply: Allows SkyWord Plus end-user to send one (1) "canned"
response to messages received. Not available for use with the
PageFinder(TM) Device.
7. Response Service: Allows SkyWord Plus end-user to send unlimited
"canned" responses to messages received. Any messages transmitted
in connection with the Response Service are aggregated with other
usage under the underlying SkyWord Plus Service plan and will be
subject to normal overcall rates if the monthly usage allowance
is exceeded.
8. Personal 800/888 Access Number: Allows the message sender to dial
the end-user directly, without having to enter a separate PIN
through use of a general access number.
C. Coverage: All SkyWord Plus and SkyWriter coverage locations across
the nation.
Notes to Exhibit D:
* To the extent Reseller utilizes any information service provided by Destineer
and its Affiliates which contains informational content and data ("Licensed
Content") supplied through any 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
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, and (b) that the
Content Provider, its licensors, Destineer and its Affiliates disclaim all
warranties, including the implied warranties of merchantability 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 omissions from, the Licensed Content, and for any indirect, incidental,
consequential or special damages arising therefrom.
Revised February 17, 1999
CONFIDENTIAL
Exhibit E
Page 1 of 4
Exhibit E
RATES AND CHARGES/(a)/
--------------------------------------------------------------------------------------------------------------------------------
SKYTEL One-Way Network Advanced Messaging Network
SERVICES (SkyTel F1 & F2) (Destineer F1)
--------------------------------------------------------------------------------------------------------------------------------
Basic Services SkyPager SkyWord SkyWord Plus SkyWriter
--------------------------------------------------------------------------------------------------------------------------------
Basic Services - Monthly Recurring Charges
--------------------------------------------------------------------------------------------------------------------------------
Coverage Nationwide Regional Metro Nationwide Regional Metro Nationwide Nationwide
1 - 1,000 UIS/(b)/ $13.50 $9.00 $6.00 $39.20 $24.50 $10.00 $18.50 $18.50
1,001 - 2,500 UIS $13.00 $8.75 $6.00 $38.80 $24.40 $10.00 $18.40 $18.40
2,501 - 5,000 UIS $11.00 $8.50 $6.00 $38.30 $24.25 $10.00 $18.25 $18.25
5,001 - 10,000 UIS $11.00 $8.00 $6.00 $37.85 $24.00 $10.00 $18.00 $18.00
10,001 - 20,000 UIS $11.00 $7.50 $5.50 $35.50 $23.75 $10.00 $17.75 $17.75
20,001 - 40,000 UIS $11.00 $7.00 $5.00 $32.50 $23.50 $ 9.50 $17.50 $17.50
40,001 - 50,000 UIS $11.00 $6.50 $4.75 $31.00 $23.25 $ 9.00 $17.25 $17.25
50,001 - 99,999 UIS $11.00 $6.00 $4.50 $28.00 $23.00 $ 9.00 $17.00 $17.00
100,000 + UIS $11.00 $6.00 $4.50 $28.00 $23.00 $ 9.00 $17.00 $17.00
--------------------------------------------------------------------------------------------------------------------------------
Basic Services - Activation Fee, Usage Allowance and Overcall Information
--------------------------------------------------------------------------------------------------------------------------------
Activation Fee N/C/(c)/ N/C/(c)/ N/C/(c)/ N/C/(c)/ N/C/(c)/ N/C/(c)/ N/C/(c)/ N/C/(c)/
Characters Per Message Block/(d)/ 20 20 20 40 40 40 10 10
Block Allowance/UIS/Month/(d)/ 200 200 400 125 125 125 1000 1000
Charge/Block in Excess of Allowance ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇ 1 1/2c 1 1/2c
--------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
Enhanced (Optional) Services - Per Subscriber Charges
-----------------------------------------------------------------------------------------------------------------------
Description Charge Allowance
-----------------------------------------------------------------------------------------------------------------------
Operator Dispatch (not applicable with numeric Services) $5.00 activation fee N/A
Nationwide Now: SkyPager Services N/C N/A
SkyWord Services N/C N/A
North American Roaming/(e)/: SkyPager Services $2.50 per month N/A
SkyWord Services $2.50 per month N/A
Voice Mail Service:
Generic $5.50 per month 45 minutes per month
SkyTalk Branded $5.50 per month 45 minutes per month
Caller ID Service (not available with SkyPager Services) $9.95 activation fee/$2.00 per month N/A
SkyReply Service/(f)/ $9.95 activation fee/$2.00 per month includes replies
Response Service/(g)/ $9.95 activation fee see footnote /(g)/
Personal 800/888 Number $2.00 per month N/A
-----------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Enhanced (Optional) Services - Per Subscriber Charges
------------------------------------------------------------------------------------
Description Overcall/Usage Charge
------------------------------------------------------------------------------------
Operator Dispatch (not applicable with numeric Services) 50c per 80 char. block
Nationwide Now: SkyPager Services 45c per message
SkyWord Services 75c per 125 char. block
North American Roaming(e): SkyPager Services 50c per message
SkyWord Services $1.00 per 120 char. block
Voice Mail Service:
Generic 25c per minute
SkyTalk Branded 25c per minute
Caller ID Service (not available with SkyPager Services) N/A
SkyReply Service/(f)/ N/A
Response Service/(g)/ see footnote /(g)/
Personal 800/888 Number N/A
------------------------------------------------------------------------------------
CONFIDENTIAL
Exhibit E
Page 2 of 4
Notes:
(a) Pricing is conditioned on use of FLEX technology pagers. Services provided
in connection with POCSAG pagers will incur an additional 30% surcharge on
monthly 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).
(b) For pricing tier purposes, all UIS are aggregated for determination of the
appropriate SkyPager, SkyWord, SkyWord Plus and SkyWriter UIS pricing
tiers.
(c) "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.
(d) Applies to all forms of usage, including e-mail and voice mail
notifications.
(e) Provides roaming capabilities in Mexico and Canada, as well as for service
in the United States. Only for use in connection with a nationwide SkyPager
or SkyWord Service Plan. Charges are in addition to the other nationwide
SkyPager or SkyWord Service charges. Additional per minute access charges
will also be applicable for system access via telephone from Mexico.
(f) Available in connection with all SkyWord Plus Service plans. Not available
for use with the PageFinder/TM/ Device.
(g) Available in connection with all SkyWord Plus Service plans. Any messages
transmitted from the Device in connection with the Response Service are
aggregated with other usage under the underlying SkyWord Plus Service plan
and will be subject to normal overcall rates if the monthly usage allowance
is exceeded.
Revised February 17, 1999
CONFIDENTIAL
Exhibit E
Page 3 of 4
-----------------------------------------------------------------------------------------------------------------------------
INTERNATIONAL SERVICES/(a)/
-----------------------------------------------------------------------------------------------------------------------------
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/(e)/
-----------------------------------------------------------------------------------------------------------------------------
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 Usage/Overcall 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
CONFIDENTIAL