1
Exhibit 10.8
AT&T WIRELESS SERVICES
VALUE ADDED RESELLER AGREEMENT
AT&T Wireless Services National Accounts, Inc., as agent for certain of
its wireless telecommunications operating Affiliates, ("AT&T"), and the
Customer, as more specifically designated below, hereby agree that Customer's
acquisition of services from AT&T for resale and other permitted uses will be
pursuant to the terms and conditions as provided in this Agreement.
A. CUSTOMER:
NAME OF CUSTOMER: OpenSky
ADDRESS OF CUSTOMER: 000 Xxxxxxxxxx Xxx, Xxxx Xxxx, XX, 00000
TELEPHONE NUMBER: 000 000-0000
FAX NUMBER: 000 000-0000
PRINCIPAL CONTACT PERSONS: Xxxxx Xxxxxxxxx, President, Xxxxxxx XxXxxxx, Chairman
and CEO
B. DESCRIPTION OF AGREEMENT.
Customer would like to receive cellular digital packet data communications
service ("Service") from AT&T for Customer's distribution of certain value-added
communications services to its End Users. AT&T wishes to provide Service to
Customer based upon the value-added communications services provided by Customer
to its End Users in accordance with the terms and conditions of this Agreement.
C. EFFECTIVE DATE.
The Effective Date of this Agreement is the date of Commercial Launch, as
defined below.
D. TERM.
This Agreement commences on the Effective Date and remains in effect for one
year after the date of Commercial Launch, automatically renewing for successive
one-year renewal terms, unless terminated as described in the "Additional Terms
and Conditions" portion of this Agreement.
E. EXHIBITS AND SCHEDULES
-1-
2
EXHIBIT A-APPLICATION
EXHIBIT B-SERVICE AREA
EXHIBIT C-SERVICE PLAN
EXHIBIT D-END USER DISCLOSURES
All Exhibits and Schedules are attached hereto and incorporated into this
Agreement by this reference.
F. ADDITIONAL TERMS AND CONDITIONS
In consideration of the mutual promises contained in this Agreement, the
parties, and their successors and permitted assigns hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 AFFILIATE means, with respect to any entity, any other entity that
directly Controls, is Controlled by or is under common Control with the first
entity.
1.2 APPLICATION means the combination of the Service and Customer's
value-added communications services provided to its End Users. The Application
is more specifically described in Exhibit A hereto.
1.3 COMMERCIAL LAUNCH means the date agreed to by AT&T and Customer as
the date that the Application will be available for a beta test of up to 5000
End Users.
1.4 CONTROL (and all conjugations thereof) means, with respect to any
entity, the direct or indirect possession of the power to direct the management
and policies of such entity.
1.5 CUSTOMER EQUIPMENT means all equipment (other than equipment
comprising portions of AT&T's CDPD network) necessary to enable Customer or its
End Users to receive the Service including but not limited to Customer's network
facilities, and Customer's and End User's Wireless Data Units.
1.6 END USER means an individual or entity obtaining access to Service
from Customer.
1.7 EVENTS OF DEFAULT means the following:
(i) the execution of any assignment for the benefit of creditors
or the filing for relief by either party under any applicable bankruptcy,
reorganization, moratorium, or similar debtor relief laws;
-2-
3
(ii) the appointment of a receiver for Customer or AT&T or for
substantially all of their respective assets or properties;
(iii) the failure of either party to pay any sum owed to the
other hereunder at the time such amount comes due;
(iv) the failure of either party to perform or observe any other
term, condition, or covenant to be performed by it under this Agreement;
(v) the commission of any major felonies by or the filing of
criminal indictment by government authorities against a party, its proprietors,
partners, officers, directors or shareholders (to the extent such individuals
control in the aggregate or individual 20% or more of the voting rights or
equity interests of such party);
(vi) the furnishing, within a 12-month period, by Customer to
AT&T of two or more checks that are not paid when presented due to insufficient
funds;
(vii) an unauthorized assignment of this Agreement; and
(viii) failure by Customer to meet the eligibility requirements
and all terms and conditions of each Service Plan selected by Customer.
Upon the occurrence of any of these Events of Default, a party shall be deemed
to be in default of this Agreement, unless such Event of Default is cured within
any applicable cure period identified in Section 10.2.
1.8 NUMBER means, for each End User, the AT&T network equipment
identifier ("NEI") or mobile identification number ("MIN") assigned to Customer
for that End User to obtain access to Service.
1.9 SERVICE means the CDPD and associated support services provided to
Customer by AT&T as set forth in this Agreement.
1.10 SERVICE AREA means that area in which Service is made available to
Customer by AT&T. The current Service Area is set forth in Exhibit B, which
Exhibit B may be amended by AT&T from time to time. The Service Area consists of
AT&T Markets and Non-AT&T Markets as identified in Exhibit B.
1.11 SERVICE PLAN means the rates and other terms and conditions under
which Customer purchases Service from AT&T. The current Service Plan(s) are set
forth in Exhibit C, which Exhibit C may be amended by AT&T from time to time as
provided in Section 5.1.
1.12 SUBSCRIBER means any person or entity purchasing Service from AT&T,
including Customer.
1.13 SUBSCRIPTION FRAUD means using or assisting another to use any
fraudulent scheme, false representation, or false credit device, or other
fraudulent means or devices in connection with Service; including, but not
limited to, the fraudulent production of information regarding a person's
identity or the use of unauthorized credit.
-3-
4
1.14 UNAUTHORIZED ACCESS means any unauthorized use of Service through
the modification of the electronic serial number ("ESN") originally installed by
the manufacturer in a Wireless Data Unit which shall include the practices
generally referred to as "counterfeiting," "cloning fraud," or "tumbling fraud".
1.15 WIRELESS DATA UNIT means the equipment used to originate or receive
wireless data transmissions, including but not limited to personal digital
assistants and wireless modems.
SECTION 2. THE SERVICE
2.1 PROVISION
2.1.1 AT&T shall provide and Customer agrees to purchase Service
as provided in this Agreement. Customer acknowledges that Service is provided by
AT&T directly and through agreements with other carriers; and that AT&T cannot
control the quality of the services when provided through an agreement with
another carrier. AT&T shall use commercially reasonable efforts to provide the
Service in a manner using the reasonable care and skill of a competent
telecommunications services provider.
2.1.2 Service provided pursuant to this Agreement will be
provided only upon the request of Customer's authorized representatives and not
by End Users, and only in connection with the Application.
2.1.3 Customer is not authorized under this Agreement to use the
Service independent of the Application or in conjunction with any other value
added communications services unless Exhibit A is amended to include such other
value added communications services.
2.2 SUPPORT SERVICES. AT&T will provide to Customer, and not directly to
End Users, network monitoring, technical assistance and trouble-shooting support
of the Service as described in AT&T's Support Procedures provided to Customer by
AT&T from time to time. Customer will cooperate with AT&T in any troubleshooting
of the Service and Customer Equipment required to maintain the efficient
operation of the Service.
2.3 NUMBERS. Customer may order Numbers by complying with AT&T's
procedures for ordering Numbers. Additional Numbers will be issued to Customer
provided Customer is not in default hereof, and subject to any requirements for
a security deposit. AT&T may periodically be required for system or other
reasons to change any of Customer's Numbers. AT&T will, whenever possible, give
Customer prior written notice of such change. AT&T will use its best efforts to
minimize such changes.
2.4 USE
2.4.1 Customer shall use and resell the Service for lawful
business purposes and only in connection with the Application.
-4-
5
2.4.2 AT&T is obligated only to Customer, with which it is in
privity of contract, and not to End Users, with whom AT&T is not in privity. End
Users are not to be deemed third-party beneficiaries of this Agreement.
2.4.3 Customer is solely responsible for all risks and expenses
incurred with its provision of the Service and the provision of the Application
to End Users. Except as provided in Section 20.3, Customer will pay AT&T for all
charges for Service used by Customer or its End Users or third parties using a
Number assigned to Customer. In connection with such activities, Customer will
act in all respects for its own account and will be responsible for such things
as credit verification, deposits, billing, collection, and bad debt.
2.4.4 Customer will disclose to End Users the provisions set
forth in Exhibit D in substantially the form set forth therein.
2.4.5 Customer is responsible for all End User support regarding
all aspects of End Users' use of the Service (whether arising in connection with
hardware, software or Service), including but not limited to issues relating to
modems, protocol stacks, software configuration and setup, usability issues,
Service activation, Service coverage, billing, and any and all other aspects of
technical services and customer care. This includes, but is not limited to,
Customer taking the End Users' calls and using reasonable commercial efforts to
remedy any Customer or End User-identified problem without AT&T's participation.
Customer will report a problem to AT&T only upon reasonable verification that
the problem is due to reasons other than misuse, malfunction or the failure of
the Customer Equipment to meet the technical standards for compatibility with
the Service, or failure of the End User to understand how to use the Service.
2.5 CONTINUING RIGHT. AT&T will have the continuing right to market and
sell the Service and any other communications services to any third parties,
including but not limited to current, future and potential End Users, and to
communicate with such third parties, including but not limited to with respect
to Customer's performance hereunder.
2.6 PROCEDURES. Customer will comply with AT&T's policies and procedures
for obtaining Numbers, for configuring and programming Customer Equipment, and
for activating or deactivating Service with respect to any End User. AT&T may
from time to time modify these policies and procedures by giving Customer
written notice of such modification.
2.7 SERVICE AREA. The Service is available only to properly configured
Wireless Data Units within the Service Area and is subject to (i) transmission
limitations caused by atmospheric, topographical or other conditions affecting
transmission; (ii) equipment modifications, repairs and other similar activities
necessary for the proper or improved operation of the Service; (iii) equipment
failures beyond AT&T's reasonable control; and (iv) Customer Equipment
limitations.
2.8 INTERRUPTIONS. The Service may be temporarily refused, limited,
interrupted or curtailed due to governmental regulations or orders, system
capacity limitations or equipment maintenance, repair, modifications, upgrades
or relocation. AT&T will notify Customer of scheduled network outages, and will
attempt to notify Customer of unscheduled network outages that are expected to
last more than four (4) hours and that may affect the Service.
-5-
6
2.9 LIMITATIONS ON USE. Customer and its End Users will comply with any
limitations on use of Service contained in the Service Plan. AT&T reserves the
right to audit use of Service to determine conformance with any limitation on
use. In the event AT&T determines in its sole discretion that usage does not
conform to such limitation on use, AT&T may terminate this Agreement.
SECTION 3. INTERCONNECTION
Customer will be required to obtain and pay for any interconnection
services required to connect Customers or End Users' facilities to AT&T's
network. Customer will follow AT&T policies and procedures for such connections.
SECTION 4. CUSTOMER EQUIPMENT
Customer will be responsible for the acquisition, programming,
installation, maintenance and repair of all Customer Equipment. Customer will
ensure that all Customer Equipment is technically and operationally compatible
with the Service and meets all applicable federal and state laws, rules and
regulations. Customer may not associate a Number with more than one Wireless
Data Unit.
SECTION 5. RATES
5.1 AT&T is willing to offer the Service Plan to Customer based upon,
among other things, the commitments given by Customer under this Agreement and
Customer's ability and commitment to provide the value-added communication
services as described in Exhibit A.
5.2 Customer will pay AT&T for Service provided to Customer and its End
Users in accordance with the applicable Service Plan.
5.3 SPECIAL OFFERS. Unless the Service Plan provides otherwise, Customer
will not be entitled to participate in any promotions or have access to rewards,
free usage, special Subscriber offerings, equipment, warranty and insurance
packages, and other features provided to other Subscribers.
SECTION 6. EXCLUSIVITY
6.1 ADVERTISING. For a period from the Effective Date to five months
after Commercial Launch, Customer shall not advertise or promote the
Application, either directly or indirectly, in a way which associates the
Application in any manner with competitors of AT&T other than to the extent
necessary to explain coverage in areas not served by AT&T.
6.2 ACTIVATIONS. With respect to all End Users obtained by Customer
within an AT&T Market, Customer will assign such End Users a Number provided by
AT&T.
SECTION 7. CUSTOMER'S IDENTIFICATION OF AT&T SERVICE
7.1 IDENTIFICATION AS VALUE ADDED RESELLER. Customer will identify
itself in marketing and collateral describing the Service according to the
graphic standards and guidelines as published by
-6-
7
AT&T from time to time. AT&T may modify these graphic standards and guidelines
from time to time upon written notice to Customer.
7.2 AT&T APPROVAL. All uses of any AT&T Marks (as defined in Section 19
below) by Customer must be approved in advance by AT&T Customer will be
responsible to ensure that all advertising and promotional activities conducted
by Customer will comply with all applicable laws, whether or not such
advertising was reviewed or approved by AT&T.
7.3 QUARTERLY MEETINGS. The parties will meet once each calendar quarter
to review Customer's planned use of AT&T Marks during the next calendar quarter
and to coordinate the parties' use of AT&T Marks. Customer will be responsible
for scheduling these meetings.
7.4 OBLIGATIONS UPON TERMINATION. Customer will immediately upon
termination of this Agreement either destroy all material referencing AT&T or
containing AT&T Marks, or will remove all references to AT&T or AT&T Marks
contained in such material.
SECTION 8. MARKETING FUNDS
8.1 AMOUNT OF FUNDS. AT&T will make available to Customer up to
$10,000,000 in marketing funds to finance certain marketing activities approved
in advance by AT&T.
8.1.1 After the Application has been tested and accepted by AT&T,
AT&T will make the first $5,000,000 available to Customer to be used for
activities which advertise or promote the launch of the Application.
8.1.2 AT&T will make the second $5,000,000 available to Customer
after Customer has obtained 5,000 End Users on AT&T's Numbers. These funds will
be used for activities that advertise or promote the Application.
8.2 USE OF FUNDS. The marketing funds made available by AT&T will be
used for activities that have been approved by AT&T and which include a
prominent display of AT&T's Marks (as defined in Section 19 below). These funds
may not be used by Customer to subsidize the price of any Wireless Data Units
for End Users. These funds must be directed to potential End Users within AT&T
Markets, provided that internet and national (as agreed by AT&T) marketing
efforts shall be deemed to be directed to potential End Users within AT&T
Markets.
8.2.1 CUSTOMER FUNDS. During the term of this Agreement and at
the times that AT&T contributes marketing funds, Customer will contribute an
equal amount of funds for similar marketing activities; provided that funds
contributed by Customer may be used to subsidize the price of Wireless Data
Units for End Users.
8.3 ACCESS TO FUNDS. To access the marketing funds described in this
section, Customer must submit a request for the funds, together with a
description of the activities to be funded and a budget of the costs of the
activities. AT&T will use reasonable efforts to respond to each such request
-7-
8
within 10 days of receipt. Upon approval of the activities and the budget by
AT&T, Customer may have access to the amount approved, which shall be provided
by AT&T promptly after such approval. Customer may begin submitting requests for
funds at any time after the Effective Date.
8.4 REPORTS. Customer will provide a quarterly report of the activities
funded by the marketing funds, including a report of money actually spent on the
activities.
8.5 AUDIT. From time to time, AT&T may request an audit as to Customer's
use of marketing funds. Upon reasonable notice from AT&T, Customer shall make
available to AT&T or AT&T's representative books and records sufficient to
verify the amount of Customer's expenditures, the items or services purchased by
the funds, and the publication, broadcast or occurrence of the activities so
funded.
8.6 TERMINATION AND REPAYMENT OF FUNDS. In the event that the Agreement
is terminated for any reason prior to the end of its term, AT&T will not be
responsible for the payment of any marketing funds described in this Section for
any activities which have not been approved as of the termination date. Further,
in the event that this Agreement is terminated for any reason prior to the end
of its term, any marketing funds for which expenditures have not been approved
by AT&T shall revert to AT&T.
SECTION 9. INVOICES, PAYMENTS, TAXES AND SECURITY DEPOSITS
9.1 INVOICES. AT&T will provide Customer written invoices on a monthly
basis. Customer shall pay all charges associated with Service.
9.2 PAYMENT. Customer will pay each invoice within thirty (30) days
following the invoice date. Any payment not received within such time will
accrue interest at the lesser of one and one-half percent (1.5%) per month or
the maximum lawful rate. Additional fees will be assessed for any check returned
for insufficient funds. Customer is responsible for payment of and shall pay all
charges for Service furnished under this Agreement.
9.3 BILLING ADJUSTMENTS. In the event of a total Service outage
("outage") within the portion of the Service Area associated with any Number
which is not caused by the Customer or its End User, and which lasts for a
period of twenty-four (24) hours or more, a credit allowance will be made at
Customer's request in the form of a pro rata adjustment of the fixed charges
billed by AT&T to Customer with respect to such Number. Periods of discontinuous
outage, where the outage is separated by over 2 hours of service may not be
accumulated in determining if an outage has continued for at least twenty-four
(24) hours. In order to receive such credit, Customer must submit a written
request to AT&T, stating the date and location of the outage, the Numbers
affected, and such other information as AT&T may reasonably require. Such notice
must be received by AT&T within ten (10) business days following the last date
of the period of outage. Except as provided herein, AT&T shall incur no
liability for outages.
9.4. DISPUTED CHARGES.
9.4.1 PROCEDURE TO DISPUTE CHARGES. Customer shall timely pay any
undisputed charges. As a prerequisite to disputing any charges, Customer must
(i) notify AT&T in writing within
-8-
9
five (5) business days of the due date of a xxxx that Customer disputes certain
charges, (ii) advise AT&T of the basis of its dispute, and (iii) provide AT&T
with such documentation as it may have to support its position. Within thirty
(30) business days thereafter, AT&T shall provide Customer with a written
response supported by documentation. If AT&T's response indicates a continuing
dispute, within ten (10) business days thereafter, Customer and AT&T shall meet
in a good faith effort to resolve the billing dispute. Any dispute not resolved
within thirty days of AT&T's response may be submitted by either party to
arbitration.
9.4.2 LOSS OF WIRELESS DATA UNIT. In the event Customer's or an End
User's Wireless Data Unit is lost, stolen, or otherwise absent from Customer's
or the End User's possession or control, Customer shall nevertheless be liable
for all charges attributable to the Number assigned to such Wireless Data Unit
until it notifies AT&T during business hours of such loss, theft, or
unauthorized absence, in which case, Customer's liability therefor shall
terminate at the earlier of (i) deactivation of the Number by AT&T, or (ii) the
end of one (1) business hour after such notification is received by AT&TAT&T
shall use reasonable efforts, taking into account all circumstances which shall
include other operational demands placed upon its employees, to deactivate
Service to the Number affected as soon as practicable.
9.5 TAXES. Customer will pay all applicable federal, state and local
sales, use, public utilities, gross receipts or other taxes, fees, or recoveries
imposed on AT&T as a result of this Agreement (collectively, "Taxes") (other
than taxes imposed on the net income of AT&T). Customer will submit certificates
of resale for federal excise tax and as required for the states in which it will
resell Service. Customer is responsible for collecting from its End Users and
paying all Taxes associated with its provision of Service and the Application.
Customer will reimburse AT&T for any such Taxes paid by AT&T on Customer's
behalf.
9.6 SECURITY DEPOSITS. In the event that Customer is more than thirty
(30) days late on any three consecutive payments, AT&T may require Customer to
provide it with a cash deposit or other security reasonably acceptable to AT&T
based upon AT&T's assessment of Customer's creditworthiness.
SECTION 10. TERMINATION
10.1 TERMINATION AT END OF TERM. Either party may terminate this
Agreement by providing the other party with written notice of termination at
least ninety (90) days prior to the end of the then current term.
10.2 TERMINATION UPON DEFAULT. Upon an Event of Default which the
defaulting party fails to cure within thirty (30) days following its receipt of
written notice from the non-defaulting party the non-defaulting party, in
addition to any other remedies it may have at law or in equity (including the
right to recover or resolve any actual or potential damages to or claims against
a party during any notice period), may terminate this Agreement without further
notice after expiration of any additional time to cure the default as provided
in the notice to the defaulting party.
-9-
10
10.3 TERMINATION FOR GOVERNMENTAL REASONS. AT&T may terminate this
Agreement immediately and without penalty upon written notice to Customer if the
Federal Communications Commission, any other regulatory agency, legislative
body, or court promulgates any rule, regulation, judgment or order that
prohibits or substantially impedes (in effect or application) AT&T from
fulfilling its obligations hereunder. AT&T will notify Customer promptly
following AT&T's determination that an event permitting termination under this
Section has occurred.
10.4 SURVIVAL. Any and all provisions of this Agreement that may
reasonably be interpreted or construed as surviving termination or which may be
necessary or convenient for a party to effectively enforce the terms of this
Agreement will survive the termination of this Agreement.
10.5 PAYMENT UPON TERMINATION. Upon termination of this Agreement for
any reason, all amounts owing to AT&T hereunder will become due and payable and
AT&T reserves the right to offset or deduct any amounts due from Customer
against security deposits or other funds due to Customer.
SECTION 11. FORCE MAJEURE
Neither party will be liable for any loss, damage, cost, delay or
failure to perform resulting from causes beyond its reasonable control
including, but not limited to, acts of God, fires, floods, earthquakes, strikes,
insurrections, governmental orders, riots, lightning or storms, or delays of
suppliers or subcontractors for the same causes.
SECTION 12. INDEMNIFICATION AND INSURANCE
12.1 INDEMNITY. Customer and AT&T each hereby agree to defend,
indemnify, and hold harmless each other and each other's Affiliates, and their
former, current, and future officers, directors, employees, agents, successors,
and assigns, from and against any claims, costs, and expenses, including
punitive damages, court costs, and reasonable attorneys' and expert witness'
fees before and at trial and on appeal (collectively, "Claims"), arising from a
breach of this agreement by or any conduct in connection with this Agreement by
the indemnifying party (including such party's Affiliates, and their officers,
directors, employees, agents, and contractors). Customer further agrees to
defend, indemnify, and hold harmless AT&T, its Affiliates, and their former,
current, and future officers, directors, employees, agents, successors, and
assigns, from and against any Claims of End Users. Notwithstanding the
foregoing, the obligations of both Customer and AT&T to defend, indemnify, and
hold harmless shall not apply to the extent such claims result from the other
party's negligence or willful misconduct.
Within ten days after being notified of any Claims to which these
indemnification obligations may apply, the party receiving such notice shall
notify the party from whom the indemnification is sought (the "Indemnifying
Party"), and shall give reasonable opportunity to the Indemnifying Party to
defend the claim at its own expense and with counsel of its own selection;
provided, however, that the party seeking indemnification shall at all times
have the right to participate fully, at its own expense, in the defense of and
to approve any settlement of the Claims.
If the Indemnifying Party, within 30 days after notice, shall fail to
accept defense of the Claims, then the party seeking indemnification shall have
the right, but not the obligation, to undertake the defense of, and to
compromise or settle (exercising reasonable business judgment), the Claims on
-10-
11
behalf, for the account, and at the risk of the Indemnifying Party. If the
Claims cannot by their nature be defended solely by one party, the other party
shall make available all information and assistance that may reasonably be
requested, regardless of any obligations to indemnify hereunder.
12.2 INSURANCE.
Customer shall keep in full force and effect a policy of public
liability, personal injury, property damage, and contractual liability insurance
with respect to the business operated by Customer, which insurance shall cover
each occurrence in an amount not less than $1,000,000 and shall cover property
damage in an amount not less than $500,000.00. Such policy or policies shall
name AT&T as an additional insured and shall be procured from an insurance
carrier reasonably acceptable to AT&T. Upon request, Customer shall furnish AT&T
with a certificate evidencing such insurance. Such insurance shall provide that
the insurer will not cancel, materially alter, or allow such insurance to expire
without first giving AT&T thirty (30) days prior written notice.
SECTION 13. NO WARRANTIES
AT&T SUPPLIES A SERVICE, AND NOT GOODS. AT&T MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE OR THE PERFORMANCE OF ANY
OBLIGATIONS HEREUNDER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE
EXPRESSLY EXCLUDED. AT&T IS NOT THE MANUFACTURER OF ANY CUSTOMER EQUIPMENT AND
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT THERETO. TO THE EXTENT
AT&T PROVIDES ACCESS TO INFORMATION PROVIDED BY OTHER SOURCES, AT&T ACCEPTS NO
LIABILITY FOR AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
CONTENT THEREOF. CUSTOMER HAS NOT RELIED ON AND WILL NOT CLAIM THAT IT IS
ENTITLED TO THE BENEFITS OF ANY REPRESENTATIONS, PROMISES, DESCRIPTION OF
SERVICES OR OTHER STATEMENT NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT.
SECTION 14. LIMITATION OF LIABILITY
14.1 NO CONSEQUENTIAL DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE OTHER
(OR ITS END USERS, CUSTOMERS OR ANY THIRD PARTY) FOR ANY INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF SUCH PARTY'S FAILURE TO PERFORM UNDER THIS
AGREEMENT. NOTHING IN THIS SECTION 14.1 WILL LIMIT A PARTY'S OBLIGATION TO FULLY
INDEMNIFY THE OTHER UNDER SECTION 12 FOR ACTIONS BROUGHT BY THE INDEMNIFYING
PARTY'S CUSTOMERS, END USERS OR BY ANY THIRD-PARTY, EVEN IF SUCH ACTIONS INCLUDE
CLAIMS FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
14.2 LIMITATION OF ACTIONS. EXCEPT FOR ACTIONS ARISING IN CONNECTION
WITH SECTION 12, NEITHER PARTY MAY BRING A LEGAL ACTION WITH RESPECT TO THIS
AGREEMENT MORE THAN TWENTY-FOUR (24) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
-11-
12
14.3 LIABILITY CAP. EXCEPT FOR LIABILITIES ARISING UNDER SECTION 12, THE
AGGREGATE LIABILITY OF AT&T FOR CLAIMS RELATING TO THIS AGREEMENT, WHETHER FOR
BREACH OR IN TORT, WITH RESPECT TO CUSTOMER, END USERS, OR OTHER USERS OF
SERVICE OR FACILITIES, WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO AT&T IN
THE TWO MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
14.4 PARTY. FOR THE PURPOSES OF THIS SECTION 14, "PARTY" MEANS THE
PARTY, ITS SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE OWNERS DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS AND SUPPLIERS.
14.5 SECURITY. ALTHOUGH THE LAW GENERALLY PROHIBITS THIRD PARTIES FROM
MONITORING CELLULAR TRANSMISSIONS, AT&T CANNOT GUARANTY THE SECURITY OF DATA
TRANSMISSIONS. AT&T SHALL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING IN ANY
WAY TO USE OF THE SERVICE OR CUSTOMERS OR ITS END USERS DATA TRANSMISSIONS.
CUSTOMER AGREES THAT AT&T SHALL NOT BE LIABLE FOR DISCLOSURES AS A RESULT OF USE
OF THE SERVICE.
SECTION 15. CONFIDENTIALITY
15.1 CONFIDENTIAL INFORMATION. During the term of this Agreement either
party may (but shall not be obligated to) disclose to the other information
which is considered proprietary or confidential by the disclosing party. Without
the disclosing party's specific prior written consent, disclosure shall not be
made to a third party (including but not limited to End Users) of any
information which is designated confidential or proprietary and which is
supplied by one party to the other party; and which information is not otherwise
generally available to the public or is not already known to the other party;
provided, however, either party may disclose such information in compliance with
court processes or similar agency requirements if the other party has been given
ten days prior written notice of the proposed disclosure or as much notice as is
reasonably possible if the situation does not permit such ten (10) day notice.
The parties agree that equitable relief is available for any breach or
threatened breach of this Section 15.
15.2 ADDITIONAL PROTECTION OF CONFIDENTIAL INFORMATION. In the
performance of this Agreement, AT&T's Affiliates, officers, directors, agents
and employees may come into possession of information about Customer's End
Users, including but not limited to Numbers and usage or other forms of
identification of End Users. Neither AT&T nor any person or entity obtaining
such information by or through AT&T may use any such information except as
required to provide Service to Customer under this Agreement. However, any
information independently developed by AT&T which includes End User data may be
used by AT&T at its sole discretion. Such information shall be treated as
Customer proprietary information pursuant to Section 15.1 above.
SECTION 16. NOTICES
All notices, consents, approvals and other communications required or
permitted to be given or made hereunder (a "notice") will be in writing and will
be delivered (i) personally (if to a corporation, to an officer; if to a
partnership, to a partner; if to a limited liability company, to a member or
manager); (ii) by private overnight courier; (iii) by facsimile transmission; or
(iv) by registered or
-12-
13
certified mail, sent to the recipient's address or facsimile telephone number
and attention of the individual as set forth following the signature lines
hereto, or to the registered agent of the recipient in the recipient's state of
incorporation or formation, or such other address or facsimile telephone number
or individual as may be specified by notice. All notices will be deemed to have
been given on (i) the date of receipt if delivered personally or by private
overnight courier; (ii) the date of transmission with confirmation of successful
transmission by the sender's equipment if transmitted by facsimile transmission;
or (iii) the third day following posting if transmitted by registered or
certified mail. Any notice received after 5:00 p.m. local time in the city and
state where delivered shall be deemed to have been made on the next business
day.
SECTION 17. ASSIGNMENT
Except as provided in this Section, neither party may assign or transfer
this Agreement, or its rights or obligations hereunder, without the prior
written consent of the other party. Either party may assign this Agreement,
without the other's consent, to (i) any Affiliate of the assignor, or (ii) any
person or entity that acquires the assignor or substantially all of the
assignor's business through any merger, consolidation or stock or asset
purchase; provided that the assignee agrees in writing to be bound by the
provisions of this Agreement. In addition, AT&T may assign certain of its rights
and obligations under this Agreement without Customer's consent.
SECTION 18. NO AGENCY
AT&T and Customer are independent contracting parties. This Agreement
does not create any partnership, joint venture or agency relationship between
the parties.
SECTION 19. MARKS
19.1 Customer recognizes the right, title and interest of AT&T and its
respective Affiliates in and to all service marks, trademarks and trade names
used by any of them in connection with the Service (the "Marks"). Customer
agrees not to engage in any activities or commit any acts, directly or
indirectly, which may contest, dispute, or otherwise impair such right, title,
and interest of AT&T and its respective Affiliates therein. Customer will not
gain any property rights to the Marks by virtue of this Agreement and will not
use any Marks without AT&T's prior written consent.
19.2 AT&T recognizes the right, title and interest of Customer and its
respective Affiliates in and to all service marks, trademarks and trade names
used by any of them in connection with the Service (the "Customer Marks"). AT&T
agrees not to engage in any activities or commit any acts, directly or
indirectly, which may contest, dispute, or otherwise impair such right, title,
and interest of Customer and its respective Affiliates therein. AT&T will not
gain any rights to the Customer Marks by virtue of this Agreement and will not
use any Customer Marks without Customer's prior written consent.
19.3 Neither party will engage in any activity that may be harmful to
the other party's goodwill or may reflect unfavorably on its marks. This
prohibition includes, without limitation, the commission of any unfair trade
practice, the publication of any false, misleading or deceptive advertising, or
the commission of any fraud or misrepresentation.
-13-
14
19.4 All advertising and promotional activities conducted by Customer
will be completely factual and ethical, and Customer shall be solely responsible
for the content thereof, whether or not reviewed by Company.
SECTION 20. ABUSE; INTERFERENCE
20.1 ABUSE OR FRAUDULENT USE. Service to a Number may be restricted
according to procedures set forth in this Section 20 if there is abuse or
fraudulent use thereof. Abuse and fraudulent use of Service include, but are not
limited to:
(i) Attempting or assisting another to access, alter, or
interfere with the communications of and/or information about another wireless
customer;
(ii) Tampering with or making an unauthorized connection with any
AT&T facilities;
(iii) Subscription Fraud;
(iv) Using Service in such a manner so as to interfere
unreasonably with the use of Service by one or more other wireless customers or
End Users or to interfere unreasonably with AT&T's ability to provide Service;
(v) Using Service to convey information which is obscene,
salacious, prurient, or unlawful; and
(vi) Unauthorized Access.
Customer agrees to make good faith efforts to minimize abuse or
fraudulent use as described above, to promptly report to AT&T any such abuse or
fraudulent use of which Customer becomes aware, and to cooperate in any
investigation or prosecution initiated by AT&T.
20.2 CANCELLATION OF SERVICE TO END USER. AT&T may require Customer to
cancel the right to market or use Service by any of its agents or End Users
abusing or fraudulently marketing or using Service. However, if Customer has
requested advance notice of cancellation as provided in AT&T's procedures, AT&T
will not cancel Service until receipt of Customer's notice. For so long as AT&T
acts in good faith under this Section, Customer shall indemnify and hold AT&T
harmless as set forth in Section 12.1 against any Claims arising therefrom.
20.3 LIABILITY FOR ABUSE OR FRAUDULENT USAGE. Customer shall be liable
for charges or other costs or damages resulting from abuse or fraudulent use as
described below.
20.3.1 Customer shall have full liability for charges, costs or
damages resulting from Subscriber fraud, or from Customer or any of Customer's
employees, agents or End Users, either negligently or intentionally facilitating
the abuse or fraudulent use which shall include, without limitation, any failure
to give prompt notice of suspected abuse or fraudulent use based on information
available to Customer.
20.3.2 If at any time AT&T or Customer reasonably suspects that
any Number(s) may be, has been, or is being used to abuse or fraudulently obtain
use of Service, and AT&T is permitted to terminate Service to that Number(s)
immediately upon AT&T's discovery and without prior notice to Customer, Customer
shall have no liability for abuse or fraudulent use charges, costs or damages
incurred after AT&T's discovery, provided Customer has not asked for notice
pursuant to Section
-14-
15
20.3.3 AT&T shall use reasonable efforts to provide prompt subsequent notice of
termination of Service to Customer during business hours.
20.3.3 Customer may notify AT&T in writing that it elects to
receive advance notice of the cessation of Service to Numbers as the result of
suspicions of abuse or fraudulent use. In such case, commencing at the time AT&T
determines, or Customer claims it suspects, that a Number may be, has been, or
is being used for abuse or fraudulent use, Customer shall bear full liability
for any further usage of the Number until one (1) hour after the Customer
notifies AT&T of its request to terminate Service with respect to such Number.
20.3.4 In the event Customer determines that charges, costs or
damages on an invoice are the result of Unauthorized Access which was not
previously discovered by the parties, Customer shall not be liable for such
Unauthorized Access if Customer provides AT&T with clear and convincing evidence
of the Unauthorized Access, such as: (i) call detail information for the End
User's account; and (ii) a statement by Customer that it has thoroughly
investigated the alleged Unauthorized Access and that it will cooperate
reasonably in obtaining affidavits or other required documentation required for
any prosecution of the person fraudulently using the Service. AT&T may require
affidavits prior to issuing any credits if Customer does not comply with this
Section. Such investigation by Customer should include contacting or attempting
to contact a sufficient number of recipients of calls at issue of each End User
so as to establish a reasonable basis for inferring that the remainder of such
calls were the result of unauthorized access.
SECTION 21. ARBITRATION; JURISDICTION; GOVERNING LAW
21.1 STATE LAW. The validity, construction, and performance of this
agreement shall be governed by and interpreted in accordance with the laws of
the state of Washington.
21.2 COURT PROCEEDINGS/VENUE. The parties hereby consent to the sole and
exclusive jurisdiction and venue of the state and federal courts located in King
County, Washington.
21.3 ATTORNEY'S FEES. In the event an action is commenced by either
party to enforce the terms of this Agreement, the substantially prevailing party
in such action shall be entitled to its reasonable costs and attorneys' and
expert witness' fees incurred therein through appeal. For purposes of this
Section, the efforts of in-house attorneys and their staff shall be valued at
rates prevailing in the market for private practitioners.
SECTION 22. GENERAL
22.1 WAIVER. The waiver of any provision or default of this Agreement
will not constitute a waiver of any other provision or default. If any provision
of this Agreement is deemed to be unenforceable, the remaining provisions will
remain in full force and effect.
22.2 SEVERABILITY. Should any part of this Agreement for any reason be
declared invalid by court order or by any regulatory agency, such order shall
not affect the validity of any remaining portion; and the remaining portion of
the Agreement shall continue in full force and effect unless such order
materially alters the nature of the obligations of either party hereto. In such
event, this Agreement shall immediately terminate.
22.3 ENTIRE AGREEMENT. This Agreement, together with its attached
Exhibits, sets forth the entire agreement between the parties concerning the
subject matter hereof. Any amendment or
-15-
16
modification to this Agreement will be effective only if made in writing and
signed by both parties. Provided, however, this Agreement shall be deemed
automatically amended to the extent inconsistent with any federal, state or
local law, regulation, court order or tariff required to be filed by AT&T.
22.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original agreement, but all of
which together shall constitute one and the same instrument.
22.5 COMPLIANCE WITH LAWS. AT&T and Customer shall at all times comply
in all material respects with all laws, rules and regulations applicable to the
performance of this Agreement. In the event that the Service is or becomes
subject to any Federal, state, or local regulation or tariff, then those
provisions shall be deemed amended immediately as may be required under such
regulation or tariff.
22.6 AMENDMENTS. This Agreement may be amended only by a written
instrument executed by both parties.
22.7 PREPARATION OF AGREEMENT. This Agreement shall not be construed
more strongly against any party regardless of who is responsible for its
preparation or drafting.
SECTION 23. INDEPENDENT INVESTIGATION
AT&T and Customer acknowledge they have read this Agreement and
understand and accept the terms, conditions, and covenants contained herein.
Customer acknowledges and understands that AT&T may at any time also be engaged
directly or indirectly through other resellers and through dealers or outlets of
any kind, in soliciting potential Subscribers for the Service or other services
or products. Customer acknowledges that it understands that it will not obtain
any exclusive rights under this Agreement, either with respect to a ---
territory or otherwise Customer also acknowledges and understands that AT&T may
sell the Service to others who may resell it. Customer has independently
investigated the business of providing wireless data service and the
profitability (if any) and risks thereof and is not relying on any
representation, guarantee, or statement of AT&T other than as set forth in this
Agreement.
Customer also acknowledges that AT&T does not represent: (i) the amount
of profits, net or gross, that Customer can expect from its operations under
this Agreement or that Customer will derive income from the sale of AT&T's
services under this Agreement; (ii) that AT&T will refund any payments made by
Customer to AT&T under this Agreement except as otherwise provided herein;(iii)
AT&T will provide a sales or marketing program that will enable Customer to
derive income under this agreement.
Customer further acknowledges that, except as specifically set forth in
this Agreement, AT&T does not make any representations regarding: (i) the
quantity or quality of service to be sold by Customer; (ii) the provision by
AT&T to Customer of training and management assistance; (iii) the size (other
than the geographic area), choice, potential, or demographic nature of the area
in which AT&T's service is available or the number of other dealers or reselling
customers that are or may in the future operate in that area; (iv) the
termination, transfer, or renewal provisions of this Agreement other than as set
forth in the Agreement; or (v) the sponsorship or participation of a primary
marketer of trademark products or services in Customer's operations under this
Agreement other than as may be set forth in this Agreement.
-16-
17
AT&T acknowledges that Customer may at any time solicit potential
customers for wireless data service provided by Customer directly or indirectly
through business relationships with entities competing with AT&T.
CUSTOMER: OmniSky Corp AT&T WIRELESS SERVICES NATIONAL ACCOUNTS,
INC., AS AGENT FOR CERTAIN OF ITS AFFILIATES
By /s/ Signature Illegible By /s/ Signature Illegible
Its: Its: SR. VP
-17-
18
EXHIBIT A
APPLICATION
Customer will offer end-users CDPD service on handheld devices in order to
access the internet and to provide certain internet-based content and
applications. Through integration and customization Customer will offer the user
a simple integrated solution from a single source that provides hardware,
service and support.
-18-
19
EXHIBIT B
SERVICE AREA
Customer can receive Service in the following MSAs:
ARIZONA: Phoenix*, Tucson*
CALIFORNIA: Fresno, Sacramento, San Diego*, San Francisco*, San Xxxx*,
Bakersfield*
COLORADO: Denver
CONNECTICUT: Bridgeport*, Hartford*, New Haven*, New London/Norwich*
DELAWARE: Wilmington*, Dover*
FLORIDA: Orlando, Tampa/St. Petersburg, West Palm Beach/Boca Raton
Miami/Ft. Lauderdale, Lakeland/Winter Haven*
ILLINOIS: Chicago*
INDIANA: Xxxx*, Indianapolis*
KENTUCKY: Louisville*
MARYLAND: Baltimore*, Frederick*
MASSACHUSETTS: Boston*, Worcester*
MICHIGAN: Detroit*
MINNESOTA: Minneapolis/St. Xxxx
MISSOURI: St. Louis*
NEVADA: Las Vegas, Reno
NEW HAMPSHIRE: Manchester*
NEW JERSEY: Atlantic City*, Trenton*, Long Branch*, New Brunswick*,
Ocean City*, Vineland
NEW MEXICO: Albuquerque*, Las Cruces*
NEW YORK: New York
NORTH CAROLINA: Charlotte*, Raleigh*
OHIO: Cincinnati*, Columbus*, Dayton*, Cleveland*, Akron*,
Canton*
00
XXXXXXXX: Xxxxxxxx Xxxx, Xxxxx
XXXXXX: Portland
-19-
00
XXXXXXXXXXXX: Xxxxxxxxxx, Xxxxxxxxx*, Xxxxxxxxxxxx*
XXXXX XXXXXXXX: Columbia*, Greenville*
TENNESSEE: Memphis*, Nashville*
TEXAS: Xxxxxx, Xxxxxx/Ft. Worth, San Antonio, El Paso*, Houston*,
Galveston*
UTAH: Salt Lake City
VIRGINIA: Newport News*, Richmond*, Norfolk*
WASHINGTON: Seattle/Xxxxxxx, Tacoma
WASHINGTON D.C.*
*Non-AT&T Markets.
-20-
22
EXHIBIT C
SERVICE PLAN
DEFINITIONS:
AT&T MARKETS: Markets where AT&T provides Service directly, as indicated on
Exhibit B.
NON AT&T MARKETS: Markets where Service is available through AT&T's intercarrier
agreements, as indicated on Exhibit B.
SERVICE PLAN:
MONTHLY ACCESS FEE:
Customer will pay a Monthly Access Fee for each Number activated on AT&T's
Service. This fee is pro-rated on a daily basis for periods of less than one
month in which a Number is active. The amount of the fee varies based upon the
number of End Users active on AT&T's Service as of the end of the month. At all
levels, the first 1000 kilobytes of Service ("Included Kilobytes") in any month
are included. Unused monthly Included Kilobytes cannot be carried over to any
subsequent month. Included Kilobytes are calculated on an aggregate basis across
all End Users active on AT&T's Service as of the end of the month.
Number of Active End Users Monthly Fee Per End User
-------------------------- ------------------------
0 - 10,000 $26.50
10,001 - 30,000 $26.50
30,001 - 50,000 $22.00
50,001 - 100,000 $17.50
100,001 + $14.00
USAGE CHARGES:
Usage charges are assessed on a per kilobyte basis after the first 1000 in any
month and varies based upon the number of End Users active on AT&T's Service as
of the end of the month.
-21-
23
Number of Active End Users Usage Charge per Kilobyte
-------------------------- -------------------------
0 - 10,000 AT&T Markets: $.03
Non-AT&T Markets: $.05
10,001-30,000 AT&T Markets: $.03
Non-AT&T Markets: $.05
30,001 - 50,000 AT&T Markets: $.025
Non-AT&T Markets: $.05
50,001 - 100,000 AT&T Markets: $.02
Non-AT&T Markets: $.05
100,001 + AT&T Markets: $.015
Non-AT&T Markets: $.05
CHARGE CAP:
During the period from November 15th 1999 to April 30th 2000 the total aggregate
of usage charges and access fees shall not exceed $50 per User per month for
the first 5000 Users. E.g.: If there are 3,000 subscribers signed up in a given
month charges for that month excluding assignment fees, shall not exceed
$150,000. Additional Users beyond the first 5000 will be charged as stated in
the table above.
Customer will provide AT&T with 75 accounts, at no charge, to be used for
employee and demonstration purposes. AT&T will provide the IP addresses and
Wireless Data Units to be used with these accounts.
ASSIGNMENT FEE: A one-time fee will be charged for every new Number at the time
activated by Customer. This fee varies based upon the number of End Users active
on AT&T's Service as of the end of the month.
Number of Active End Users Assignment Fee
-------------------------- --------------
0 - 10,000 $5.00
10,001 - 30,000 $5.00
30,001 - 50,000 $3.00
50,001 - 100,000 $2.50
100,001 + $0.00
CANCELLATION FEE: No cancellation fee will be assessed upon deactivation of
Numbers.
BILLING GUIDELINES:
-22-
24
1. General. AT&T will xxxx Customer on a monthly basis for Service
furnished under this Agreement, including regular monthly
Service charges and usage charges for all data transmissions
processed through the Number. Usage charges include charges on a
per kilobyte basis for transmissions that are sent or received
by Wireless Data Units programmed with a Number assigned to
Customer. Usage charges may also include charges for additional
services offered by AT&T which Customer may subscribe to at
rates determined by AT&T from time to time.
2. Access Charges. Access charges are billed monthly in arrears.
Usage charges are billed monthly in arrears. If AT&T agrees to
provide Service features to Customer, AT&T reserves the right to
charge a reasonable fee for adding or deleting Service features.
3. Measurement. The measurement of a transmission is in kilobytes.
4. Discounts. All volume and off peak discounts will be applied to
Customer's Account for the current billing cycle.
5. Additional Charges: State surcharges may be charged to Customer
in addition to the charges under all Rate Plans.
6. Loss of Registration. Registration may be "lost" (i.e.,
involuntarily disconnected) for a variety of reasons, including
atmospheric conditions, topography, weak batteries, system over
capacity, movement outside a service area, and gaps in coverage
within a service area. Loss of registration may result in
retransmissions and additional usage charges.
MINIMUM NUMBER REQUIREMENTS: Customer shall maintain, within nine months of the
date of this Agreement, a minimum of [***] active Numbers.
FAILURE TO MEET MINIMUM NUMBER REQUIREMENTS: In the event Customer fails to
achieve the minimum Number requirements at any time after the dates set forth in
this Exhibit C, Customer shall pay to AT&T in addition to all other amounts due
the difference between Customer's actual Numbers and the required minimum
Numbers times $[***] for each month in which Customer fails to achieve such
minimum. Continued failure to meet Minimum Number Requirements shall give rise
to AT&T's right to terminate under Section 10.2
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
-23-
25
EXHIBIT D
END USER DISCLOSURES
1. [END USER] EXPRESSLY UNDERSTANDS AND AGREES THAT IT HAS NO CONTRACTUAL
RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE CARRIER AND THAT
[END USER] IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN [CUSTOMER]
AND UNDERLYING CARRIER. IN ADDITION, [END USER] EXPRESSLY UNDERSTANDS AND AGREES
THAT THE UNDERLYING CARRIER SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY
OF ANY KIND TO [END USER]. IN ANY EVENT, REGARDLESS OF THE FORM OF THE ACTION,
WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT
OR OTHERWISE, [END USER's] EXCLUSIVE REMEDY AND THE TOTAL LIABILITY OF THE
UNDERLYING CARRIER ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, FOR ANY
CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF
SERVICE PROVIDED HEREUNDER, IS LIMITED TO PAYMENT OF DAMAGES IN AN AMOUNT NOT TO
EXCEED THE AMOUNT PAID BY [CUSTOMER] TO [THE UNDERLYING CARRIER] FOR THE
SERVICES DURING THE TWO MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
2. [END USER] SHALL INDEMNIFY AND HOLD HARMLESS THE UNDERLYING WIRELESS SERVICE
CARRIER SUPPLYING SERVICES TO [CUSTOMER] AND ITS OFFICERS, EMPLOYEES, AND AGENTS
AGAINST ANY AN ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL,
SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY
DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS AGREEMENT OR THE USE, FAILURE TO
USE, OR INABILITY TO USE THE NUMBER EXCEPT WHERE THE CLAIMS RESULT FROM THE
UNDERLYING CARRIER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY
SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
3. [END USER] HAS NO PROPERTY RIGHT IN ANY NUMBER ASSIGNED TO IT, AND
UNDERSTANDS THAT ANY SUCH NUMBER CAN BE CHANGED FROM TIME TO TIME.
4. [END USER] UNDERSTANDS THAT [CUSTOMER] AND THE UNDERLYING CARRIER CANNOT
GUARANTY THE SECURITY OF DATA TRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK
OF SECURITY RELATING TO THE USE OF THE SERVICES OR THE TRANSMISSION OF DATA.
-24-
