**CONFIDENTIAL TREATMENT REQUESTED Exhibit 10.3
Arch
March 17, 1999 Paging Products Sales Agreement
PAGING PRODUCTS SALES AGREEMENT
THIS AGREEMENT ("Agreement") is entered into on March 17, 1999, by and
between Motorola, Inc., a Delaware corporation, acting through its Paging
Products Group, with an address at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ("Motorola") and ARCH COMMUNICATIONS GROUP a Delaware corporation,
with an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Buyer").
PRODUCTS AND PRICES
Because of the prices set forth in competitive offers received by Buyer,
Motorola agrees to sell to Buyer the paging products listed on Attachment "A"
("Pagers") at the prices stated therein. These prices apply to Pagers ordered on
common carrier frequencies for which Buyer (or its subsidiary companies) are the
licensee or bona fide sales agent of the licensee. All prices include a primary
cell battery unless otherwise noted.
PRICE CHANGES AND SPECIAL PROMOTIONS
The prices stated in Attachment "A" are firm for the Term of this
Agreement. In the event Motorola lowers the standard common carrier price of any
product set forth in Attachment "A" during the Term of this Agreement, no price
adjustment shall be made in the Attachment "A" prices unless the new standard
common carrier price is lower than the Attachment "A" price for the same product
stated in this Agreement. In which case, all such products remaining to be
shipped under this Agreement shall be shipped at the new, lower standard common
carrier price. If, during the Term of this Agreement, Motorola offers a special
promotional price on any product in Attachment "A", Buyer may select the lower
of the special promotional price or the price in this Agreement.
QUANTITY
Motorola agrees to sell and Buyer agrees to purchase and accept delivery on
a minimum of ** Pagers within one year from date of this Agreement (**). All
products are quoted for sale subject to availability.
ORDERS
All orders placed during the Term of this Agreement are subject to the
terms and conditions set forth in Attachment "B" ("Standard Terms and
Conditions"). If any conflict arises between the Standard Terms and Conditions
and any other terms and conditions involved in the sale or Buyer's Purchase
Orders, the attached Standard Terms and Conditions shall prevail.
NON-DISCLOSURE
Both Buyer and Motorola recognize the confidentiality of the pricing
information set forth in this Agreement and agree to not disclose same to third
parties during the Term of this Agreement, unless required by judicial or
administrative order. In the event of any potential merger or stock sale
transactions, Buyer will protect this confidentiality by obtaining written
Non-Disclosure Agreements from the parties.
DELIVERY SCHEDULE
Prices quoted are for Pagers whose delivery is requested at or beyond the
current gaiting schedule, following receipt and acceptance of Buyer's
processable order at Motorola's Boynton Beach, Florida headquarters.
BUSINESS METHODS IMPROVEMENT INCENTIVE
The prices in this Agreement are based in part on efforts to implement an
improved system of order forecasting and order management. The goal of this
program is to improve overall efficiency with longer-range visibility of Pager
requirements and to reduce the number of orders which are changed within 30 days
of scheduled ship date. Buyer shall provide Motorola a rolling six (6) month
forecast of projected Pager purchases on a monthly basis and shall issue firm
orders for three (3) month periods for product not to be fulfilled by the
Motorola Distribution Fulfillment Center (DFC). Accuracy of the rolling forecast
must be within 20% of actual orders placed to assure assignment of ship dates to
match the current gaiting schedule.
CHANGE ORDERS
Change orders will not be accepted by Motorola if requested within
twenty-one (21) days of the acknowledged shipment date. Customer agrees to
accept any Pagers shipped by Motorola where a change order was rejected by
Motorola because said change order was submitted within twenty-one (21) days of
the acknowledged shipment date.
ENTIRE AGREEMENT
This Agreement constitutes the entire and final expression of the agreement
between the parties pertaining to the subject matter hereof and supersedes all
prior related communications or agreements, oral, written or electronically
communicated, between the parties. The Attachments listed below are hereby
incorporated herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives on the date first written above.
ARCH COMMUNICATION GROUP MOTOROLA, INC.
By: _________________________ By: ___________________
Title: ________________________ Title: V Pres. & Dir. Of Distribution
------------------------------
Attachments:
A- Paging Products Pricing
B- Standard Terms and Conditions
ARCH Contract Alpha MDF Bonus (3/5/99)
**CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A
PAGING PRODUCTS PRICING
Based on a minimum quantity of ** pagers, the following prices are offered on
the basic models indicated, exclusive of available options:
---------------------- -------------------------------- ------- -------- -------
DESCRIPTION LOW / UHF
PRODUCT FEATURES HIGH BAND 900 MHz
------- BAND
---------------------- -------------------------------- ------- -------- -------
---------------------- -------------------------------- ------- -------- -------
Pronto Numeric Display w/vibe ** ** **
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Pronto FLX Numeric Display w/vibe ** ** **
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Bravo LX(TM) Numeric Display w/vibe ** ** **
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Bravo FLX(TM) Numeric Display w/vibe ** ** **
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---------------------- -------------------------------- ------- -------- -------
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Express ▇▇▇▇(TM) Numeric Display ** ** **
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---------------------- -------------------------------- ------- -------- -------
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LS 350 Numeric Display FLX(TM)& Pocsag ** ** **
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LS 550 Numeric Display FLX(TM) ** ** **
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LS 750 Numeric Display FLX(TM)& Pocsag ** ** **
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BR 850 Numeric Display FLX(TM) ** ** **
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---------------------- -------------------------------- ------- -------- -------
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Wordline(TM) ** POCSAG ** ** **
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---------------------- -------------------------------- ------- -------- -------
Wordline FLX(TM) ** FLX Word Message ** ** **
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---------------------- -------------------------------- ------- -------- -------
---------------------- -------------------------------- ------- -------- -------
Jazz(TM) Flex Word Message Display ** ** **
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---------------------- -------------------------------- ------- -------- -------
---------------------- -------------------------------- ------- -------- -------
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Advisor Gold(TM) Alpha Display w/vibe ** ** **
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---------------------- -------------------------------- ------- -------- -------
Advisor Elite(TM) FLX Alpha Display w/vibe ** ** **
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---------------------- -------------------------------- ------- -------- -------
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CP 1250 Word Message Pager Flex ** ** **
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PF 1500 Word Messaging Reflex 50 & 25 ** ** **
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Pagewriter ▇▇▇▇ ▇▇▇ ▇▇▇ Reflex 50 (Deluxe) ** ** **
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Packaging Standard or Retail Boxes ** ** **
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QuickWord(TM) Message Entry Device ** ** **
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WordTrek(TM) Message Entry Device ** ** **
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WordTrek Plus(TM) Message Entry Device ** ** **
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Keynote (5/6 Tone) ** ** **
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Keynote (2-Tone) ** ** **
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Keynote Voice Storage ** ** **
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* Monet Mystique Housing is available for an additional charge of $ ** each.
ATTACHMENT B
STANDARD TERMS AND CONDITIONS
TERM. This Agreement shall become effective upon execution by both parties on
the date stated herein and shall continue in effect for a term of one year, and
will automatically renew for successive one year terms subject to 30 days
written notice by either party.
PAYMENT. Buyer shall make net payment to Motorola at Motorola's offices at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other place as
Motorola may designate in writing. Payment shall be made within 30 days after
the date of invoice for each product, accessory, or other charge. Any invoiced
amount which is not paid within the terms and conditions of this Agreement will
be considered delinquent. Based on acceptable credit and collection practices,
Motorola is entitled to past due interest or a late-payment charge on the
delinquent balance outstanding not to exceed 1.5% per month on the outstanding
balance. In addition, Motorola may revise Buyers credits status based on Buyers
payment history. Any past due interest or late-payment charge will become due
and payable immediately at our discretion. Buyer also agrees to reimburse
Motorola for all legal fees and expenses incurred in collecting any amounts due
hereunder.
PACKING AND DELIVERY; RESTOCKING. All delivered goods shall be packed and
shipped in accordance with Buyer's instructions or in accordance with Motorola's
standards. All articles shall be sold and delivered FOB Motorola's shipping
facility(ies) unless otherwise expressly agreed to in writing. All stipulated
delivery or shipment dates are estimated only. Motorola reserves the right to
make deliveries in installments and the contract shall be severable as to any
such installments. Delay in delivery or other default of any installment shall
not relieve the Buyer of its obligation to accept and pay for remaining
deliveries. Claims for shipment shortage or delay in delivery shall be deemed
waived unless presented to Motorola in writing within 30 days after delivery of
each shipment. IN NO EVENT SHALL MOTOROLA BE LIABLE FOR INCREASED MANUFACTURING
COSTS, LOSS OF PROFITS OR GOOD WILL, OR ANY OTHER SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES. All returned goods are subject to a restocking fee equal
to twenty percent (20%) of the value of the returned goods. No goods may be
returned to Motorola after ninety (90) days from shipment.
RESPONSIBILITY AND TITLE; SECURITY INTEREST. Title and risk of loss or damage to
articles sold shall pass to the Buyer when the articles are delivered to the FOB
point referred to above or to the specified FOB point. Buyer shall bear all
costs of their purchase hereunder after delivery to the FOB point including, but
not limited to, insurance, consular fees, taxes, ocean, air and/or inland
freight, shipping or handling charges and the like. Any loss or damage after
delivery to carrier will not relieve Buyer of its payment obligations to
Motorola. Motorola shall retain and Buyer hereby grants Motorola a security
interest and right of possession in articles sold until Buyer makes full
payment. Buyer agrees to cooperate in whatever manner necessary to assist
Motorola in perfection of said security interest upon request.
TAXES. Federal, State and/or Local excise, sales and use taxes or similar taxes
are not included in the prices in Attachment A and B. They will be invoiced at
prevailing rates unless a current Tax Exemption Certificate for the shipping
destination state has been submitted by Buyer and is on file with Motorola. If
any such excluded tax is determined to be applicable to this transaction or
Motorola is required to pay or bear the burden thereof, the prices set forth
herein shall be increased by the amount of such tax and any interest or penalty
thereon, and Buyer shall pay to Motorola the full amount of any such increase no
later than 30 days after receipt of an invoice therefore.
PATENT AND COPYRIGHT INDEMNIFICATION. Motorola agrees to defend, at its expense,
any suits against Buyer based upon a claim that any Motorola manufactured
products furnished hereunder directly infringe a U.S. patent or copyright and to
pay costs and damages finally awarded in any such suit, provided that Motorola
is notified promptly in writing of the suit and at Motorola's request and at its
expense is given control of said suit and all requested assistance for defense
of same. If the use or sale of any such product(s) furnished hereunder is
enjoined as a result of such suit, Motorola, at its option and at no expense to
Buyer, shall obtain for Buyer the right to use or sell such product(s) or shall
substitute an equivalent product reasonably acceptable to Buyer and extend this
indemnity thereto or shall accept the return of such product(s) and reimburse
Buyer the purchase price therefore, less a reasonable charge for reasonable wear
and tear. This indemnity does not extend to any suit based upon any infringement
or alleged infringement of any patent or copyright by the combination of any
such product(s) furnished hereunder and other elements nor does it extend to any
such product(s) of Buyer's design or formula. The foregoing states the entire
liability of Motorola for patent or copyright infringement. IN NO EVENT SHALL
MOTOROLA BE LIABLE FOR INCIDENTAL SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM
INFRINGEMENT OR ALLEGED INFRINGEMENT OF PATENTS OR COPYRIGHTS.
COPYRIGHTS AND MASK WORKS. Motorola mask works and other works of authorship may
be used in and redistributed only with the Products associated with same. No
other use, including without limitation reproduction, modification or
disassembly of such Motorola mask works or other works of authorship is
permitted.
REVERSE ENGINEERING. Buyer acknowledges Motorola's claim that the Motorola
products furnished hereunder contain valuable trade secrets of Motorola and
therefore agrees that it will not translate, reverse engineer, decompile,
disassemble or make any other unauthorized use of such Motorola Equipment. Since
unauthorized use of such Motorola products will cause irreparable harm to
Motorola, Buyer agrees that Motorola, in addition to any other remedies it may
have, shall be entitled to equitable relief to protect such trade secrets,
including without limitation temporary and permanent injunctive relief without
proof of damages.
LOGOS AND TRADEMARKS. 1) The products shipped under the terms and conditions of
this Agreement will carry Motorola's logo or such other logo as expressly agreed
to by Motorola. 2) In order that Motorola may protect and preserve its
trademarks, trade names, corporate slogans, corporate logo, goodwill and product
designations, Buyer, without the express written consent of Motorola, shall have
no right to use any such marks, names, slogans or designations of Motorola in
the sale, lease or advertising of any products or on any product, product
container, component part, business forms, sales, advertising and promotional
materials or other business supplies or materials, whether in writing, orally or
otherwise.
GOVERNMENT SALES. In the event Buyer elects to sell Motorola products or
services to any U.S. federal, state or local, or any foreign government agency,
or to a prime contractor or subcontractor selling to such entity, Buyer shall do
so at their own option and risk and agrees not to obligate Motorola as a
subcontractor or otherwise to such Buyer except as indicated in the paragraph
below. Buyer remains solely and exclusively responsible for compliance with all
statutes, regulations and clauses governing sales to any U.S. federal, state or
local, or any foreign government agency, or to a prime contractor or
subcontractor selling to such entity, except as indicated in the paragraph
below. Motorola makes no representations, certifications, or warranties
whatsoever with respect to the ability of its goods, services or prices to
satisfy any such statutes, regulations and clauses.
Motorola represents that it generally complies with the following FAR clauses:
FAR Clause Title
52.221-21 Certification of Nonsegregated Facilities
52.222-22 Previous Contracts and Compliance Reports
52.222-25 Affirmative Action Compliance
52.222-26 Equal Opportunity
52.222-35 Affirmative Action for Special Disabled and Vietnam Era
Veterans
52.222-36 Affirmative Action for Handicapped Workers
52.222-37 Employment Reports on Special Disabled Veterans And
Veterans of the Vietnam Era
52.223-2 Clean Air and Water
LICENSE DISCLAIMER. Except for the right to use the Motorola products for the
purposes provided herein which arises by operation of law and except as
expressly provided herein, nothing contained in this Agreement shall be deemed
to grant to Buyer either directly or by implication, estoppel or otherwise, any
license or right under any patents, copyrights, trademarks or trade secrets of
Motorola or any third party.
INDEPENDENT CONTRACTORS. The parties agree that each is an independent
contractor, that neither is an agent of the other party, and that neither party
can bind the other to third parties.
NOTICES. Each party shall serve notices on the other party at the address set
forth in this Agreement and must serve same via certified mail, facsimile or
courier.
EXCUSABLE DELAY. In addition to other limitations on liability set forth in this
Agreement, Motorola shall not be liable for any delay or failure to perform due
to any cause beyond its reasonable control. Causes include, but are not limited
to, strikes, acts of God, acts of the Buyer, interruptions of transportation or
inability to obtain necessary materials or facilities, default of any supplier,
or delays in FCC frequency authorization or license grant. In the event Motorola
is unable to wholly or partially perform because of any cause beyond its
reasonable control, Motorola may terminate the Agreement without any liability
to Buyer.
FCC AND OTHER GOVERNMENT MATTERS. Buyer is solely responsible for obtaining any
licenses from, and complying with any rules and regulations required by, the
Federal Communications Commission ("FCC") or any other Federal, State or Local
governmental agency.
COMMUNICATIONS SERVICES. Buyer agrees that communications services are not
provided under the Agreement. MOTOROLA DISCLAIMS LIABILITY FOR RANGE, COVERAGE,
AVAILABILITY OR OPERATION OF ANY SYSTEM.
LIMITATION OF LIABILITY. EXCEPT FOR PERSONAL INJURY AND EXCEPT AS PROVIDED FOR
IN THE SECTION "PATENT AND COPYRIGHT INDEMNIFICATION", MOTOROLA'S TOTAL
LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER FOR BREACH OF
CONTRACT, WARRANTY, MOTOROLA'S NEGLIGENCE, STRICT LIABILITY IN TORT OR
OTHERWISE, IS LIMITED TO THE PRICE OF THE PARTICULAR PRODUCTS SOLD HEREUNDER
WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. BUYER'S SOLE REMEDY IS TO
REQUEST MOTOROLA AT MOTOROLA'S OPTION TO EITHER REFUND THE PURCHASE PRICE OR
REPAIR OR REPLACE PRODUCTS THAT ARE NOT AS WARRANTED. IN NO EVENT WILL MOTOROLA
BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, FRUSTRATION OF ECONOMIC OR BUSINESS EXPECTATIONS, LOSS OF PROFITS,
LOSS OF DATA, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCT(S), FACILITIES OR
SERVICES, DOWNTIME COST OR ANY CLAIM AGAINST BUYER BY ANY OTHER PARTY, WHETHER
FOR BREACH OF CONTRACT, WARRANTY, MOTOROLA'S NEGLIGENCE, STRICT LIABILITY IN
TORT, OR OTHERWISE.
INSURANCE. It is further understood that Motorola is not an insurer and that
Buyer shall obtain all insurance, if any, that is desired and that Motorola does
not represent or warrant that Motorola products will avert or prevent
occurrences, or the consequences therefrom, which are monitored, detected or
controlled with the use of the products.
TIME TO ▇▇▇. Except for money due upon an open account, no action shall be
brought for any breach of this Agreement more than two (2) years after the
accrual of such cause of action except where a shorter limitation period is
provided by applicable law. Except as otherwise already disclosed in writing to
Motorola, Buyer is not presently aware of any facts that could give rise to a
claim against Motorola for breach of contract, warranty, or otherwise.
NO REPRESENTATIONS. The issuance of information, advice, approvals, instructions
or cost projections by Motorola's sales personnel or other representatives shall
be deemed expressions of personal opinion only and shall not affect Motorola's
and Buyer's rights and obligations hereunder, unless the same is in writing and
signed by an officer of Motorola with the explicit statement that it constitutes
an amendment to this Agreement.
WARRANTIES. Paging products are sold subject to Motorola's written Limited
Warranty (a copy of which has been provided to Buyer and will accompany the
shipment of products). THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, WHICH ARE SPECIFICALLY EXCLUDED, INCLUDING, WITHOUT
LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. UPON ACCEPTANCE OF A SHIPMENT, BUYER SHALL BE DEEMED TO ACKNOWLEDGE
RECEIPT OF SUCH WARRANTY.
GENERAL. (A) Buyer acknowledges that it has read and understands the terms and
conditions of this Agreement and agrees to be bound by them. (B) No modification
of or additions to this Agreement shall be binding upon Motorola unless such
modification is in writing and signed by an officer of Motorola. (C) If any term
or provision of this Agreement shall to any extent be held invalid, void or
unenforceable, by a court or other tribunal, then that term or provision shall
be inoperative and void insofar as it is in conflict with law, but the remaining
terms and provisions shall nevertheless continue in full force and effect. (D)
The failure of Motorola to insist, in any one or more instances, upon the
performance of any of the terms, covenants or conditions of this Agreement, or
to exercise any right herein, shall not be construed as a waiver or
relinquishment of the future performance of any such term, covenant or condition
or the future exercise of such right, but the obligation of the Buyer with
respect to such future performance shall continue in full force and effect. (E)
THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER SHALL BE
GOVERNED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
ALTERNATIVE DISPUTE RESOLUTION. Motorola and Buyer will attempt to settle any
claim or controversy arising out of this Agreement, except for actions by
Motorola to collect payment from Buyer, through consultation and negotiation in
a spirit of mutual cooperation. If those attempts fail, then the dispute will be
mediated by a mutually-acceptable mediator to be chosen by Motorola and Buyer
within 45 days after written notice demanding mediation. Neither party may
unreasonably withhold consent to the selection of a mediator, and Motorola and
Buyer will share the costs of the mediation equally. Motorola and Buyer,
however, may postpone mediation by mutual agreement, until some specified but
limited discovery has been completed regarding the dispute. The parties may also
agree to replace mediation with some other form of alternative dispute
resolution (ADR), such as neutral fact-finding or a minitrial.
Any dispute which cannot be resolved through negotiation, mediation or other
form of ADR within six months of the date of the initial demand for it may be
submitted to the state and federal courts within Illinois for resolution, and
Motorola and Buyer hereby consent to the jurisdiction of state and federal
courts sitting in Illinois. The use of any ADR procedures will not be construed
under the doctrines of laches, waiver or estoppel to adversely affect the rights
of either party. Nothing in this section will prevent either party from
resorting to judicial proceedings if (a) good faith efforts to resolve the
dispute under these procedures have been unsuccessful, or (b) interim relief
from a court is necessary to prevent serious and irreparable injury to one party
or to others. Motorola and Buyer knowingly, voluntarily and intentionally waive
the right each may have to a jury with respect to any such judicial proceedings.
**CONFIDENTIAL TREATMENT REQUESTED
ARCH Contract Alpha MDF Bonus
PRODUCT PRICING MDF BONUS
Pagewriter 2000X (Deluxe) ** **
PF 1500 ** **
CP 1250 ** **
Advisor Gold ** **
Advisor Elites ** **
Jazz ** **
Wordline ** **
Note: * Arch will receive the additional $** per pager when Arch reaches 1998
total of **. This would be an extra $** in MDF money. A Grand total of
$ ** for ** products.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 3/5/99
Motorola NAPSD
