[LETTERHEAD OF DESTINEER]
March 5, 1997
FEDERAL EXPRESS
Xx. Xxxxxx Xxxxxxxx
Xxxx Atlantic Paging
0000X Xxxxx 00, Xxxxx 000
Xxxxxxxxxx, XX 00000
Dear Xxx:
This letter is written in connection with the execution of that certain
Reseller Agreement between Bell Atlantic Paging, Inc. ("Reseller") and
Destineer Corporation ("Destineer") to clarify the parties' intentions
regarding the provisions set forth in Section 6(a) of the Agreement.
Terms defined in the Agreement are used herein as therein defined unless
otherwise indicted.
During the 36 and 48 month periods referenced in Sections 6(a)(i) and
6(a)(ii) of the Agreement, Reseller will be permitted to retain, as a
maximum number of permitted previously authorized Devices in service for
each category, the number of such Devices that were in service as of the
beginning of the period. No additional previously authorized Devices may
be added, but units previously in service may be reused during these
periods. At the end of the respective periods, the previously authorized
Devices then in service at that time will be permitted to remain in
service; however, as those units are subsequently retired or
disconnected, they must be replaced with authorized Devices. Destineer
further warrants that, if Destineer or SkyTel makes available to any
other reseller or customer a program or compensation for replacing or
substituting such Devices, Reseller will be offered the same opportunity.
To evidence your agreement to the provisions set forth in this letter,
please sign where indicated below and return the original of this letter
to my attention for retention in Destineer's files.
Sincerely yours,
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
General Manager, Major Affiliates
Agreed, this the 5th day of March, 1997.
BELL ATLANTIC PAGING, INC.
/s/ Xxxxxx Xxxxxxxx
----------------------------
By: Xxxxxx Xxxxxxxx, President
[LETTERHEAD OF DESTINEER]
March 20, 1997
Xx. Xxxxxx Xxxxxxxx
President
Xxxx Atlantic Paging
0000X, Xxxxx 00
Xxxxx 000
Xxxxxxxxxx, XX 00000
RE: Executed Copy of the New Destineer Contract
Dear Xxx:
It's with great pleasure that I provide you with a signed copy of the new
reseller agreement between Bell Atlantic and Destineer. We thank you, Xx and
Xxxxx for the time and effort required to bring the new contract to a timely
completion.
Destineer and Mtel are nearing the final stages of our product readiness plans
for both SkyWord Plus and 2-Way services. I have a launch planning meeting
scheduled with Camper Bull on April 7, 1997. Prior to my meeting with Xxxxxx, I
plan to meet with Xxxxx X'Xxxx to get his input on several of the key issues. I
suggest that preceding the launch at Bell Atlantic, we set up a final meeting
with you and your Department Heads to review the plans.
As we discussed, I would like to issue a press release announcing that Bell
Atlantic Paging has signed the new agreement with Mtel. The press release that
Mtel issued named only "Bell Atlantic Mobile Systems." Please advise me at your
convenience.
We are looking forward to a robust launch of Destineer's new services and remain
confident that Bell Atlantic will be a major contributor.
Regards,
/s/ Xxx Xxxxxx
Xxx Xxxxxx
Regional Sales Manager
cc: Xxxxx Xxxxxxxxx
Xx Xxxxxxx
Xxxx Xxxxxx
Xxx XxXxxxx
Enclosure
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 Atlantic Paging, Inc.
("Reseller"), a Delaware corporation.
1. The term of this agreement shall commence as of the Effective Date (as
defined in the attached Terms and Conditions) and shall continue for a
period of one (1) year thereafter (the "Initial Term").
2. The parties' rights and obligations under this Agreement are set forth in
the Terms and Conditions attached hereto and the accompanying exhibits
which are incorporated by reference herein.
3. Xxxxxxxx's address for purposes of Section 15 of the attached Terms and
Conditions shall be 0000X Xxxxx 00, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx
00000; telephone number (000) 000-0000; facsimile number (000) 000-0000;
attention Director of Finance; with a copy to Bell Atlantic - NYNEX Mobile
Legal Department, 000 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
In Witness Whereof, Xxxxxxxxx and Reseller have executed this Agreement on the
dates noted below.
DESTINEER CORPORATION
Date: 3/19/97 /s/ Xxxxxx X. XxXxxxx
-----------------------------------
By: Xxxxxx X. XxXxxxx
Title: Senior Vice President
BELL ATLANTIC PAGING, INC.
Date: 3/5/97 /s/ X. X. Xxxxxxxx
------------------------------------
By: X. X. Xxxxxxxx
Title: President
CONFIDENTIAL
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. All wireless messaging units
activated by Reseller and currently in use on the SkyTel Network are acceptable
for use on the SkyTel Network, subject to the provisions of Exhibit "E", note
(b) hereof.
(f) Effective Date: The date this Agreement is executed by Xxxxxxxxx.
(g) Person: Any individual, company, corporation, firm, partnership,
joint venture, association, organization, or trust, in each case whether or not
having legal identity.
(h) PIN: A unique, Subscriber specific, personal identification number,
mailbox identification number, or other form of identification number, which may
include, without limitation, a personal toll free number, to be assigned by
Reseller in accordance with the provisions of Section 6(d) below.
(i) SkyTel: SkyTel Corp., a Delaware corporation and Affiliate of
Destineer.
(j) SkyTel Marks: The trade names, trademarks, logos, and service marks
owned by or licensed to Destineer that are listed in Exhibit "C" attached
hereto, as Exhibit "C" may be amended from time to time.
(k) SkyTel Network: Collectively, the one-way and two-way wireless
messaging systems owned and operated by Destineer and its Affiliates to provide
the SkyTel Services.
(l) SkyTel Services: The wireless messaging service offerings provided
by Destineer and its Affiliates as more fully described in Exhibit "D" attached
hereto. Notwithstanding the provisions of Section 17(j) below, Destineer may
revise Exhibit "D" from time to time in its sole discretion upon the delivery of
written notice to Reseller at least one hundred eighty (180) days prior to the
effective date of such revision, excepting only those situations in which a
given SkyTel Service is dependent on the provision of information or assistance
from independent third parties and the discontinued by Destineer on account of a
termination of such third party's with Destineer or its Affiliates, in which
case Destineer shall provide much advance notice of the discontinuation as
reasonably possible, including the above. Destineer shall ensure that any
services set forth in Exhibit "D" consist of "basic services", as defined under
applicable FCC rules, policy statements or other FCC pronouncements, shall
remain available to Reseller for resell on a "grandfather" basis to the extent
such services are commercially available through SkyTel.
(m) Subscriber: A customer of Reseller that, by virtue of the reseller
relationship established hereunder, is an end-user of the SkyTel Services.
(n) UIS or Unit in Service: A SkyTel Service account activated by
Reseller that consists of (i) "Basic Services" (see Exhibit "D" attached hereto)
or (ii) Voice Mail services. For example, a SkyWord service account constitutes
one (1) UIS; a SkyWord service account activated in connection with Voice Mail
services constitutes two (2) UIS.
2. Authority.
(a) Destineer grants Reseller a non-exclusive right to resell the
SkyTel Services in the United States in accordance with the Terms and Conditions
of this Agreement. The right and authority granted herein is subject to and
conditioned upon Reseller's satisfaction of Xxxxxxxxx's standard credit review
policies and procedures.
(b) Notwithstanding the provisions of Section 2(a) above, all personnel
of Reseller involved in the promotion, marketing and sale of wireless messaging
services provided over the two-way wireless 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.
(c) Notwithstanding anything to the contrary herein, Destineer and its
Affiliates expressly reserve the right to promote, solicit, market and sell the
SkyTel Services directly to Subscribers and other Persons, whether located
within or outside of the United States; provided, however, that Destineer shall
be prohibited from utilizing directly or otherwise sharing with or disclosing to
SkyTel any Subscriber related information to which Destineer may obtain from
Reseller as a result of the relationship established hereunder. The parties
acknowledge that this Agreement constitutes a non-exclusive relationship and
that, accordingly, Reseller may offer to sell any other paging services of its
choosing, with no assurances of any particular volume of sales of the Sky Tel
Services.
3. Price and Payment
(a) Reseller shall compensate Destineer for the SkyTel Services in
accordance with the pricing schedule attached hereto as Exhibit "E". Monthly
service fees shall be payable by Reseller in advance and are not contingent upon
usage. Reseller shall pay applicable valid and undisputed usage and other
charges in arrears. Notwithstanding the provisions of Section 17(j) below,
Destineer reserves the right to modify the fees and charges set forth in Exhibit
"E" upon at least ninety (90) days advance written notice to Reseller. Prices
charged by Reseller to Subscribers for the SkyTel Services shall be determined
solely by Reseller. Should Destineer increase pricing for the SkyTel Services as
set forth above, Reseller shall have the right to terminate this Agreement
within the first ninety (90) day period following the effective date of the
price increase by providing Destineer at least thirty (30) days notice of such
termination.
(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, if valid and undisputed,
shall be due and payable by Reseller within forty-five (45) days of the date of
Destineer's invoice. Any balance not paid by such due date shall bear
interest at the rate of one and one half percent (1 1/2%) per month from and
after the due date. All sales, use and other such taxes to the extent applicable
as related Reseller's activities hereunder, except taxes based upon the income
of Destineer, shall be paid by Reseller.
(d) Subject to the provisions contained in Section 3(f) below, 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 its sale of the
SkyTel Services to its Subscribers.
Terms and Conditions
Page 2 of 5
(e) The parties shall cooperate in good faith to timely resolve any
disputed fees and charges.
(f) In the event of an interruption of service over the SkyTel Network
which is not due to the negligence or willful act of Reseller or its
Subscribers, Destineer shall grant Reseller a credit ("Credit") against
Reseller's next applicable monthly bill for the SkyTel Services rendered
inoperative by the interruption; provided, however, that no Credit shall be made
for accumulated periods of interrupted network service of fewer than five (5)
hours per month. In determining the hours of interrupted network service, an
"interruption" shall mean a service outage covering a material portion of a
given market area (e.g., a single transmitter failure in New York that does not
materially affect coverage in New York as a whole will not be deemed an
"interruption"); an individual interruption of less than thirty (30) minutes
shall be disregarded; and an interruption in excess of thirty (30) minutes shall
be considered an additional hour. The amount of any such Credit shall be the
lesser of the following amounts: (a) the amount of any such credits extended by
Reseller to its Subscribers on account of any such interruptions that Reseller
is able to document and verify to Destineer within sixty (60) days following the
end of the month in which the interruption occurred, or (b) an amount computed
by multiplying the monthly recurring charges imposed on Reseller applicable to
the SkyTel Services rendered inoperative by interruptions in the affected month
by a fraction, the numerator of which shall be the total number of hours of the
interruption of the network service (determined in accordance with the preceding
sentence) and the denominator of which shall be 720 hours.
(g) Destineer warrants and represents that the pricing set forth herein
shall at all times be no less favorable to Reseller than offered or provided to
other resellers of the SkyTel Services (including SkyTel, to the extent SkyTel
is serving as a reseller of services provided through Destineer or an Affiliate
of Destineer) undertaking commitments and obligations substantially equal to or
less than those undertaken by Reseller hereunder. In addition, if Destineer or
SkyTel provides any of the SkyTel Services referenced herein to any Affiliate of
Reseller, such Affiliate shall be entitled to the applicable discounts for such
Services as granted to Reseller hereunder based on the aggregated volumes of
Reseller and any such Affiliate.
4. Reseller Obligations.
(a) Reseller shall ensure that each of its employees performing any
operations in connection with the provision of the SkyTel Services are
adequately trained, prior to the commencement of any such operations, and are
competent to perform their respective duties.
(b) In providing the SkyTel Services to its Subscribers, Reseller shall
comply with all laws, rules and regulations promulgated by the FCC applicable to
the activities Reseller hereunder, as well as with all reasonable message
length, message volume and other such operational procedures and limitations
established by Destineer from time to time.
(c) Except to the extent otherwise requested by Reseller and expressly
set forth in Exhibit "A" attached hereto, Reseller shall be solely responsible
for the provision of any and all sales and associated activities (including,
without limitation, xxxxxxxx to and collections from Subscribers). Devices and
customer support services to its Subscribers as related to the SkyTel Network,
and shall be solely responsible for any and all costs and expenses related
thereto.
(d) Reseller shall not misrepresent the SkyTel Services to Subscribers
or otherwise make any false claims, representations or warranties in connection
with the provision of the SkyTel Services to its Subscribers.
(e) Reseller shall ensure that appropriate disclaimer and limitation of
liability provisions, similar to those set forth in Section 9 hereof, are
incorporated in all agreements between Reseller and its Subscribers relative to
the provision of the SkyTel services.
5. Destineer Obligations.
(a) Destineer and its Affiliates shall, at all times, have the sole and
exclusive control and authority over the design, construction, development,
management, operation, and maintenance of the SkyTel Network and the SkyTel
Services.
(b) Destineer shall provide Subscribers access to the SkyTel Network
through a carrier or carriers of Destineer's choice via toll-free or local dial
up from any point in the continental United States, Alaska and Hawaii, and shall
ensure that the SkyTel Services provided to Subscribers shall be of at least the
grade and quality as provided by SkyTel to its direct customers.
(c) To the extent requested by Reseller, Destineer shall provide the
Ancillary Services to Reseller in accordance with the provisions set forth in
Exhibit "A" attached hereto.
(d) In providing the SkyTel Services to Reseller, Destineer shall
comply with all laws, rules and regulations promulgated by the FCC applicable to
the activities of Destineer hereunder.
(e) Destineer shall support the following SkyTel Network reliability
objectives in its provision of the SkyTel Services.
(i) Overall reliability (including software dial-in and operator
dispatch): 95%.
(ii) Availability: 95%, which is defined from a Subscriber viewpoint
as having the SkyTel Network available to receive message requests without
considering blockage of the SkyTel Network, measured on a quarterly basis.
(iii) Blockage: Less than a 5% overall probability of blockage in
the SkyTel Network, which shall be a measure of the probability that a
Subscriber will not be able to complete a message request due to encountering
blockage in the SkyTel Network via heavy traffic volume occurring at the moment,
measured on a quarterly basis.
(iv) Coverage Success: 95% overall messaging coverage success, the
percentage of message requests that are successfully delivered to a messaging
terminal, measured on a quarterly basis as a percentage of messages received.
(f) Destineer will periodically re-evaluate the service objective set
forth in Section 5(e) above and will work with Reseller in good faith to revise
such objective to ensure that they reflect meaningful and appropriate measures
of system quality and performance. Destineer further warrants that it will make
reasonably necessary adjustments to the objectives to ensure that the SkyTel
Service are maintained at or above industry standard levels.
(g) Destineer will make available to Reseller, on a monthly basis, such
reports as are reasonably necessary to track performance against the service
objectives set forth in Section 5(e) above, on a market-by-market basis.
(h) If the SkyTel Network service quality falls below any of the above
stated objectives, Destineer shall promptly take such remedial action as
necessary to cure such failures within sixty (60) days from the date of the
occurrence of the particular network problem, provided that such necessary
actions are not commercially unreasonable.
6. Devices.
(a) General. Reseller and its Subscribers shall only activate the
Devices listed in Exhibit "B" in connection with the SkyTel Services. All
Devices placed in service on the SkyTel Network by or through Reseller shall
comply with the provisions of this Agreement, including, without limitation, the
provisions of this Section 6(a) and, to the extent applicable, the restrictions
relative to use of the SkyTel Marks in Retail Distribution as set forth in
Exhibit "A-5" attached hereto. Notwithstanding the provisions of Section 17(j)
hereof. Destineer may revise the Device listing set forth in Exhibit "B" from
time to time upon the delivery of written notice to Reseller at least ninety
(90) days prior to the effective date of such revision. If Destineer amends
Exhibit "B" in such a manner whereby previously authorized Devices are no longer
authorized for use on the SkyTel Network, Reseller shall take such actions as
are necessary, at Reseller's sole cost and expense, to substitute authorized
Devices for the previously authorized Devices then utilized by Subscribers in
accordance with the following time frames: (i) for Devices utilized on the
one-way wireless messaging networks owned and operated by Destineer and its
Affiliates within thirty-six (36) months following the effective date of the
revision to Exhibit "B", and (ii) for Devices utilized on the two-way wireless
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. At Reseller's request, Destineer shall sell Devices
to Reseller at the prices set forth in Exhibit "B"; provided that the Devices
requested are available by Destineer for distribution to Reseller, as determined
by Destineer in its
CONFIDENTIAL
Terms and Conditions
Page 3 of 5
sole discretion. Subject to the provisions of Section 6(a) above, Reseller may
also obtain Devices from the Device manufacturer or from any other authorized
source of such Devices.
(c) Activation. All Devices activated on the SkyTel Network by Reseller shall be
coded and activated only in accordance with reasonable directives, policies and
procedures established by Destineer, which, with respect to the two-way wireless
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 SkyTel Services.
(ii) All PINs and Cap Codes assigned to Reseller by Destineer shall remain the
property of Destineer. Destineer shall have the right to utilize PIN(s) and Cap
Codes which are not utilized by Reseller, as well as those associated with
deactivated Devices, as Destineer may determine from time to time in its sole
discretion.
7. Trademarks and Logos. Destineer and its Affiliates shall have no right to use
Reseller's name or logo without the prior written consent of Reseller. The
SkyTel Services and Devices provided by Reseller to its Subscribers shall be
private branded (i.e., except to the extent otherwise provided herein. Reseller
shall have no right or authority to market, promote or sell the SkyTel Services
and related Devices under any brand, trade or service marks owned by or licensed
to Destineer or its Affilates). Notwithstanding the foregoing, Destineer shall,
to the extent requested by Reseller, license to Reseller the right to utilize
the SkyTel Marks in connection with such activities in accordance with and
subject to the provisions set forth in Exhibit "A-5" attached hereto.
8. Representations and Warranties. Each party represents and warrants to the
other that (a) it is a corporation duly organized, validly existing, and in good
standing under the laws of the State of its incorporation; (b) it has all
requisite corporate power and authority to enter into this Agreement and to
carry out and perform its obligations under the terms of this Agreement; (c)
this Agreement has been duly authorized, executed, and delivered and constitutes
a valid and binding obligation of such party enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency, moratorium,
and other laws of general application affecting the enforcement of creditors'
rights; and (d) the execution, delivery, and performance of and compliance with
this Agreement does not and will not conflict with, or constitute a default
under, or result in the creation of, any mortgage, pledge, lien, encumbrance, or
charge upon any of the properties or assets of such party, nor result in
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 AS OTHERWISE EXPRESSLY PROVIDED HEREIN, DESTINEER AND ITS
AFFILIATES MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, CONCERNING THE SKYTEL
SERVICES, THE SKYTEL NETWORK OR THE ANCILLARY SERVICES, AND HEREBY EXPRESSLY
DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR USE OR PURPOSE. UNDER NO CIRCUMSTANCES SHALL DESTINEER
OR ITS AFFILIATES BE LIABLE TO RESELLER OR ANY OTHER PERSON, INCLUDING, WITHOUT
LIMITATION, SUBSCRIBERS, FOR (i) ANY LOSS, INJURY OR DAMAGE, OF WHATEVER KIND OR
NATURE RESULTING FROM OR ARISING OUT OF ANY MISTAKES, ERRORS, OMISSIONS, DELAYS,
OR INTERRUPTIONS IN THE RECEIPT, TRANSMISSION, OR STORAGE OF ANY MESSAGES,
SIGNALS OR INFORMATION ARISING OUT OF OR IN CONNECTION WITH THE SKYTEL SERVICES
OR USE OF THE SKYTEL NETWORK, OR (ii) THE CONTENT OF ANY INFORMATION CONTAINED
IN ANY MESSAGE TRANSMISSION OVER THE SKYTEL NETWORK. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER 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
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER
RESULTING FROM BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE.
(b) DESTINEER MAKES NO WARRANTIES AS TO ANY DEVICES, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR USE OR PURPOSE. TO THE EXTENT LEGALLY PERMISSIBLE, DESTINEER SHALL
ASSIGN ALL MANUFACTURER'S WARRANTIES FOR SUCH DEVICES, IF ANY, TO RESELLER.
10. Term.
(a) The Initial Term of this Agreement shall be as specified on the
signature page of this Agreement. The term of this Agreement may be renewed for
additional terms at the expiration of the Initial Term and at each anniversary
thereof by mutual written agreement of the parties prior to the expiration of
the then current term.
(b) Upon any provision of this Agreement, Destineer and Reseller shall,
subject to the provisions of Sections 10(c) and 11(c) below, be released from
all obligations and liabilities to the other occurring or arising after the date
of such termination or the transactions contemplated hereby, except with respect
to those obligations which by their nature are designed to survive termination;
provided that no such termination will relieve Reseller from any amount due and
owing hereunder or either from any liability arising from any breach of this
Agreement occurring prior to termination.
(c) Termination of this Agreement shall not affect or diminish
Reseller's obligation to make payment to Destineer for services provided before
or after the date of termination, and such obligation shall survive termination
of this Agreement. Upon any termination of this Agreement, the parties shall,
subject to the provisions of Section 11(c) below, cooperate in good faith to
effect an orderly wind-down of the relationship created under this Agreement.
Destineer's provision of the SkyTel Services to Reseller following the date of
any such termination shall be expressly conditioned upon and subject to
Reseller's compliance with the Terms and Conditions of this Agreement,
including, without limitation, Reseller's timely payment to Destineer for
services provided in accordance with the first sentence of this Section 10(c).
11. Default.
(a) The following shall constitute an Event of Default: (i) failure by
Reseller to make any payment when due; (ii) failure by either party to observe
or perform in any material respect any of the covenants or agreements contained
in this Agreement; or (iii) a party's insolvency, assignment for the benefit of
creditors, appointment or sufferance of an 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 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. Reseller's
obligations under this Section shall survive the termination of this Agreement.
12. Assignment. This Agreement may not be assigned or transferred by
either of the parties to any other Person without the prior written consent by
the other party, which consent shall not be unreasonably withheld or delayed.
Notwithstanding the above,
CONFIDENTIAL
either party may assign this Agreement, without the prior consent of the other
party to any Person acquiring all or substantially all of the assets of the
assigning party or to an Affiliate of the assigning party. In the event of any
assignment of this Agreement, all terms and conditions hereof shall be
binding upon and ensure to the assignee as though such assignee were an original
party hereto.
13. Indemnity and Insurance.
(a) Indemnity.
(i) Except to the extent caused by the gross negligence or
willful misconduct of Destineer, 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 Xxxxxxxxx's
duties and obligations hereunder. Destineer's obligations under this Section
shall survive the termination of this Agreement.
(iii) Destineer shall defend, indemnify, and hold Reseller
harmless from and against any and all liabilities, losses, damages and costs,
incuding reasonable attorney's fees, resulting from, arising out of, or in any
way connected with any infringement or claim of infringement of any U.S. Patent,
trademark, copyright, or other intellectual property right by Xxxxxxxxx's
provision of the SkyTel Serices to Reseller hereunder, except to the extent any
such infringement or claim of infringement is due to Reseller's material
alteration of the SkyTel Services or Reseller's use of the SkyTel Services in
combination with any products or services not provided by SkyTel. 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 resticted 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 conpetent 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
000 Xxxxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Senior Vice President, Wholesale Distribution
To Reseller: See address specified on the signature page of this Agreement.
or to such other address or addresses as either party may from time to time
designate as to itself by like notice.
16. Agreements With Affiliates. The obligations and benefits of the Agreement
shall apply to any Affiliate of Reseller that elects to undertake such
obligations and benefits: provided that, in each such instance, such Affiliate
executes a separate document substantially in the form of Exhibit "F" attached
hereto assuming all obligations and liabilities pertaining to such Affiliate
pursuant to the Agreement. Reseller shall not be responsible for payment of any
such Affiliate's accounts nor will Affiliate's non-payment affect Reseller's
account.
17. 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) 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.
(f) No Waiver. No delay or failure by Destineer in exercising any right
under this Agreement, and no partial or single exercise of that right, shall
constitute a waiver of that or any other right. Failure by Destineer to enforce
any right under this Agreement will not be deemed a waiver of future enforcement
of that or any other right.
(g) Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but which collectively
will constitute one and the same instrument.
(h) Headings. The headings and captions used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Agreement.
(i) Construction. This Agreement has been negotiated by the parties and
their respective counsel. This Agreement will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either party based on draftsmanship of the Agreement or otherwise.
(j) Complete Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and supercedes
and replaces all prior or contemporaneous understandings or agreements, written
or oral, between Reseller and Destineer or any of its Affiliates regarding such
subject matter. No amendment to or modification of this Agreement will be
binding unless in writing and signed by a duly authorized representative of both
parties.
(k) Publicity. Neither party shall release for publication any
advertising or press releases relating to this Agreement or the performance
hereunder without the express prior written consent of the other party.
Notwithstanding the foregoing, Reseller shall have the right to inform its
Subscribers and prospective Subscribers that the SkyTel Services are provided
over the SkyTel Network.
Exhibit "A"
Ancillary Services
Destineer shall provide the Ancillary Services and rights set forth in
the attachments designated below at the price set forth in such
attachments.
Exhibit "A-1": Training
Exhibit "A-2": Reseller Support Services
Exhibit "A-3": Device Repair and Replacement Services
Exhibit "A-4": Sales and Marketing Services
Exhibit "A-5": License Rights
CONFIDENTIAL
Exhibit "A-1"
Training
1. As a condition of the rights granted to Reseller hereunder to resell SkyTel's
two-way wireless messaging services, all personnel of Reseller involved in the
promotion, marketing and sale of SkyTel's two-way wireless messaging services
shall undergo and successfully complete the SkyTel 2-Way training and
certification program established by Destineer for resellers of such services,
which program and certification process shall be conducted in accordance with
Destineer policies and procedures and which may be amended by Destineer from
time to time. Only such personnel of Reseller that have completed such training
and certification program to the satisfaction of Destineer may represent
Reseller in the sale and support of SkyTel's two-way wireless messaging
services. Such training and certification program shall be implemented on a fair
and even basis with respect to Reseller, as with all resellers of
SkyTel's two-way wireless messaging services, and shall be imposed on Reseller
only to the extent Destineer reasonably believes is necessary (a) to familiarize
such personnel with SkyTel's two-way wireless messaging services, the two-way
wireless messaging network owned and operated by Destineer and its Affiliates
and use of the related Devices, and (b) for Reseller to promote and market
SkyTel's two-way wireless messaging services in a professional and competent
manner.
2. Destineer shall conduct such training and certification program for Reseller
at times and locations mutually agreeable to the parties. Reseller shall bear
all costs and expenses associated with such training and certification program,
shall reimburse Destineer for all reasonable out-of-pocket travel and lodging
expenses, and shall pay Destineer the fees and charges, as applicable, as
specified in the attached pricing schedule. As part of such process and to the
extent requested by Reseller, Destineer shall train selected personnel of
Reseller to conduct future training and certification programs for Reseller's
employees on behalf of Destineer.
3. To the extent requested by Xxxxxxxx, 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
SkyTel's one-way wireless messaging services. Reseller shall bear all costs and
expenses associated with such training sessions, shall reimburse Destineer for
all reasonable out-of-pocket travel and lodging expenses, and shall pay to
Destineer the fees and charges, as applicable, as specified in the attached
pricing schedule.
CONFIDENTIAL
TRAINING PRICING SCHEDULE
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Item* Price Description
-----------------------------------------------------------------------------------------------------------------------------------
Print Materials
-----------------------------------------------------------------------------------------------------------------------------------
1. SkyGuide $5.00 per copy, print Workbook with written exercises and quizzes (SkyTel
$5.00 per disk, elec cpy Products/Svcs)
-----------------------------------------------------------------------------------------------------------------------------------
2. 5-day selling skills course $40.00 per manual, print 12 modules for selling skills: presentation skills; comp
$5.00 per module, print presenting SkyTel capabilities; intro to SkyTel sales
$5.00 per disk, elec cpy selling in F1000; building acct. relationships; letter
telemarketing; qualifying customers and ideal applications
selling the SkyTel solution; maintenance; developing an
action plan
-----------------------------------------------------------------------------------------------------------------------------------
3. Customer Service Instructor's $10.00 per manual, print The SkyTel System (one-way system only)
Guide $5.00 per disk, elec cpy
-----------------------------------------------------------------------------------------------------------------------------------
4. Customer Service Participant $10.00 per manual, print The SkyTel System (one-way system only)
Guide for one-way services $5.00 per disk, elec cpy
-----------------------------------------------------------------------------------------------------------------------------------
5. Self-study guides $5.00 per copy, print Ex: intro to networked environments; popular LAN-b mail
$5.00 per disk, elec cpy systems
-----------------------------------------------------------------------------------------------------------------------------------
6. Edits to print materials $50 per hour
-----------------------------------------------------------------------------------------------------------------------------------
Audiocassette
-----------------------------------------------------------------------------------------------------------------------------------
Basic Selling Skills $20.00 per set Set of 6 audiocassettes with workbook (audio script
worksheets)
-----------------------------------------------------------------------------------------------------------------------------------
Video
-----------------------------------------------------------------------------------------------------------------------------------
1. Custom Video $250.00 per finished minute Includes scripting, production and editing
-----------------------------------------------------------------------------------------------------------------------------------
2. Video duplication $5.00 per tape Duplication for custom videotape
-----------------------------------------------------------------------------------------------------------------------------------
3. 2-Way Coverage $5.00 per tape
-----------------------------------------------------------------------------------------------------------------------------------
4. 5 minutes to Tango $5.00 per tape Covers hardware features for the 2-Way unit
-----------------------------------------------------------------------------------------------------------------------------------
Facilitated Training
-----------------------------------------------------------------------------------------------------------------------------------
Products & Svc. Operations $125 per day Plus T&E, and cost of duplicating materials
Selling Skills $275 per day Plus T&E, and cost of duplicating materials
-----------------------------------------------------------------------------------------------------------------------------------
Computer Based Materials
-----------------------------------------------------------------------------------------------------------------------------------
1. COMPEL presentations $5.00 per module; includes Basic PC Requirements; 8 MB RAM; 16 MB preferred 486
(multimedia) for one-way products speakers notes, all on disk. minimum; Pentium preferred; color monitor optional; sound
and services. 10 modules/disks 10 modules/disks blaster compatible sound card
-----------------------------------------------------------------------------------------------------------------------------------
2. Develop New PowerPoint $4/slide, color Electronic version only; PC format
presentations
-----------------------------------------------------------------------------------------------------------------------------------
3. Existing PowerPoint $5.00 per disk, electronic
Presentations version only
-----------------------------------------------------------------------------------------------------------------------------------
CONFIDENTIAL
Exhibit "A-2"
Reseller Support Services
Destineer shall provide telephone support to Reseller on a 7 day per week, 24
hours per day basis, to assist Reseller 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.
CONFIDENTIAL
Exhibit "A-3"
Device Repair and Replacement Services
Notwithstanding the provisions of Section 9(b) of the Terms and Conditions,
Destineer shall, at Reseller's request, repair or replace defective or damaged
Devices sold to Reseller by Destineer in accordance with Section 6(b) of the
Terms and Conditions, if any, for which claims are made during the applicable
manufacturer's warranty period subject to any limitations contained in the
applicable manufacturer's warranty. Destineer shall not be responsible for any
costs or expenses related to the repair or replacement of Devices which are not
covered by an applicable manufacturer's warranty (including, without limitation,
shipping costs). In the event that Destineer elects to replace in warranty
Devices in connection with this Exhibit "A-3", Reseller shall reasonably assist
Destineer in coordinating such replacement efforts with its Subscribers.
CONFIDENTIAL
Exhitit "A"
Page 1 of 1
Exhibit "A-4"
Sales and Marketing Services
Specific services and pricing have yet to be developed, but, subject to the
mutual agreement of the parties, may be added to this Exhibit "A-4" at a later
time.
CONFIDENTIAL
Exhibit "A-5"
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 advertisement and promotion of the SkyTel Services;
provided, however, that Reseller shall have no such license or right to use the
SkyTel Marks, and Reseller shall be expressly prohibited from using the SkyTel
Marks, in connection with activities performed by the Reseller in the Retail
Distribution (as such term is defined below) of the SkyTel Services. Xxxxxxxx's
use of the SkyTel Marks in any 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 Xxxxxxxxx. The license granted by Xxxxxxxxx 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.
Resellers'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
Mark. 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 Mark, 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 the Agreement and for a period
of two (2) years thereafter, Xxxxxxxxx shall be entitled, on reasonable advance
written notice to Reseller, to retain independent certified public accountants
to review Reseller books and records for the purpose of verifying the accuracy
of the accounting for royalties paid to Destineer in accordance with this
Exhibit "A-5". Any underpayment or overpayment determined as a result of the
review will be reflected in the next scheduled royalty payment by Reseller to
Destineer. If such review verifies an underpayment error of greater than 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. Xxxxxxxx's right to utilize the SkyTel Marks, and the license granted
hereunder, is expressly conditioned upon, in addition to Reseller's compliance
with all Terms and Conditions of the Agreement, Reseller meeting and complying
with the following conditions:
(a) Reseller shall use the SkyTel Marks only in connection with the
marketing, advertisement and promotion of the SkyTel Services, and shall at all
times conduct such marketing, advertisement and promotional activities in a
professional and competent manner, as well as within any additional conditions
and limitations which Destineer may impose from time to time.
(b) Reseller shall establish and maintain a customer support division to assist
Subscribers which operates and is available to Subscribers twenty-four (24)
hours a day, seven (7) days a week, and shall comply with all other service
quality standards promulgated by Destineer from time to time.
5. As used herein, the term "Retail Distribution" shall mean and include sales
or other activities performed with or in the following channels: (a) traditional
consumer electronics retailers, (b) direct mail/catalog retailers (e.g.,
Xxxxxxxxxxx, Sharper Image, Hammacher Xxxxxxxxx, and other such mass merchants
selling directly to end-users through direct marketing communications), (c)
direct marketing activities, (d) military retail dealers, (e) office supply and
other specialty dealers (e.g., office/computer supply, beeper stores), and (f)
premium/incentive companies. For purposes of this definition the term "direct
marketing activities" means any activities conducted by or in conjunction with
retailers, including, for example, using outside sales forces or placing
advertisements or promotional materials in catalogs of retail-oriented
companies. The term "direct marketing activities" does not, however, include the
placement of advertisements in media (other than (a) through (1) above) directly
and solely by Reseller.
6. The failure of Reseller to abide by and comply with any of the provisions
set forth in this Exhibit "A-5" shall give Destineer, at its sole discretion,
the right, in addition to any other rights afforded to Destineer in the
Agreement, to immediately revoke and terminate the license granted hereunder.
CONFIDENTIAL
Exhibit "B"
Authorized Devices
-----------------------------------------------------------------------------------------------------------------------
Manufacturer Model Equipment Type Baud Rate Price
One-Way Devices:
-----------------------------------------------------------------------------------------------------------------------
Motorola Bravo(1) Numeric 2400 N/A
Motorola Bravo Plus(1) Numeric 2400 N/A
Motorola Advisor Gold FLX(Trademark) Alpha-Flex 6400 $149.00
Motorola Bravo FLX(Trademark) Numeric-Flex 6400 $ 69.00
Motorola Pro Encore FLX(Trademark) Numeric-Flex 6400 $ 74.00
Motorola Pronto FLX(Trademark) Numeric-Flex 6400 N/A
Motorola Ultra Express FLX(Trademark) Numeric-Flex 6400 N/A
NEC Exec Numeric-Flex 6400 N/A
Two-Way Devices:
Motorola Tango Alphanumeric-Reflex 6400 $319.00
Wireless Access AccessLink Alphanumeric-Reflex 6400 $349.00
-----------------------------------------------------------------------------------------------------------------------
Notes:
(1) May only be used by Subscribers authorized to receive
International Service in non-Flex capable countries. Use of
alphanumeric POCSAG pagers by Subscribers in connection with
activations of International Service following the Effective
Date shall be subject to Destineer's approval on a case-by-case basis.
CONFIDENTIAL
Exhibit "C"
SkyTel Marks
1. How the World Stays in Touch(Service Mark)
2. Nationwide Now(Service Mark)
3. SkyMail(Registered Mark)
4. SkyNews(Registered Mark)
5. SkyPager(Registered Mark)
6. SkyTalk(Registered Mark)
7. SkyTel(Registered Mark)
8. SkyTel logo(Registered Mark) (one-way and two-way)
9. SkyTel 2-Way(Service Mark)
10. SkyTel Access(Trademark) Software
11. SkyWord(Registered Mark)
12. SkyWord Access(Trademark) Software
13. SkyWriter(Trademark)
CONFIDENTIAL
Exhibit "D"
SkyTel Services
I. ONE-WAY SERVICES:
A. Basic Services: Any one-way wireless messaging capabilities
provided by or through SkyTel in the United States which
Destineer makes available for resale by third parties that
constitute "basic services as defined under applicable FCC rules,
policy statements or other FCC pronouncements. Basic Services
presently consist of those services described below.
1. SkyPager: Numeric service.
2. SkyWord: Alphanumeric service.
B. Enhanced Services: Any one-way wireless messaging capabilities
provided by or through SkyTel in the United States which
Destineer makes available for resale by third parties that
constitute "enhanced services", as defined under applicable FCC
rules, policy statements or other FCC pronouncements. Enhanced
Services presently consist of those services described below.
1. Operator Dispatch: Operator assistance to generate
alphanumeric messages.
2. Voice Mail: Voice mailbox that accepts detailed messages
from callers and notifies the Subscriber that a message
has been received (generic arid SkyTalk branded).
3. SkyNews:* News headlines provided twice daily free of
charge.
4. International Service: Provision of the SkyTel Services,
on a "follow me" basis, over the global messaging
network owned and operated by Xxxxxxxxx's Affiliate,
Mtel International, Inc.
C. Coverage:
1. Nationwide: Covers service areas in all fifty (50)
states.
2. Regional: Divides country into six (6) zones; Subscriber
may select any one (1) zone.
3. Metro: Divides country into sixty (60) zones; Subscriber
may select any one (1) zone (available with SkyPager
service only).
4. Nationwide Now: Subscriber may temporarily expand
Regional or Metro coverage to Nationwide coverage.
II. TWO-WAY SERVICES:
A. Basic Services: Any two-way wireless messaging capabilities
provided by or through SkyTel in the United States utilizing
narrowband PCS frequencies which Destineer makes available for
resale by third parties that constitute "basic services", as
defined under applicable FCC rules, policy statements or other
FCC pronouncements. Basic Services presently consist of those
services described below.
1. Message Offerings:
a) Forward channel: messages of up to 500
characters each.
b) Reverse channel: message character lengths
dependent upon the Device utilized by
Subscriber.
c) Delivery acknowledgment services.
d) Auto registration and message forwarding service
(time stamped when sent).
2. Message Types:
a) Numeric messages.
b) Alphanumeric messages.
B. Enhanced Services: Any two-way wireless messaging capabilities
provided by or through SkyTel in the United States utilizing
narrowband PCS frequencies which Destineer makes available for
resale by third parties that constitute "enhanced services", as
defined under applicable FCC rules, policy statements or other
FCC pronouncements. Enhanced Services presently consist of those
services described below.
1. Operator Dispatch: Operator assistance to generate
alphanumeric messages.
2. Voice Mail: Voice mailbox that accepts detailed messages
from callers and notifies the Subscriber that a SkyTalk
message has been received (generic and SkyTalk branded).
3. SkyNews:* News headlines provided twice daily free of
charge.
C. Coverage: All SkyTel 2-Way coverage locations across the nation.
Notes to Exhibit "D":
* Reseller acknowledges that the informational content and data
comprising SkyTel's SkyNews service is presently provided through Dow
Xxxxx & Company, Inc. ("Dow Xxxxx"). To the extent Reseller utilizes
SkyTel's SkyNews service or any other informational service front SkyTel
which contains informational content and data supplied through Dow Xxxxx
("Licensed Content"), Reseller agrees to, and shall ensure that each of
its Subscribers procuring any such services from Reseller agrees to
(through incorporation of appropriate provisions in its Subscriber
agreements), the following: (a) that Reseller (except to the extent
permitted in this Agreement) and its Subscribers shall not republish,
reproduce, redistribute, broadcast, display or resell any headline,
information or other content contained in the Licensed Content, (b) that
the Licensed Content is the property of Dow Xxxxx and its licensors and
is protected by copyright, and that neither Reseller nor its Subscribers
shall acquire any proprietary interest in the Licensed Content, (c) that
Dow Xxxxx, 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 Dow
Xxxxx, its licensors, Destineer and its Affiliates disclaim all
liability in all events including negligence or contingencies in
procuring, editing, writing, reporting or delivering the Licensed
Content, and for inaccuracies or errors in or omissions from the
Licensed Content, and for indirect, incidental, consequential or special
damages, and (d) that the liability of Xxx Xxxxx, its licensors,
Destineer or its Affiliates for any claims related to the Licensed
Content shall be limited to the amounts paid by Reseller to Destineer for
services containing the Licensed Content during the twelve (12) months
immediately preceding the event giving rise to the claim.
