MATERIAL SHOWN WITH AN ASTERISK ON ATTACHMENT A HERETO HAS BEEN OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT
99.1
MATERIAL
SHOWN WITH AN ASTERISK ON ATTACHMENT A HERETO HAS
BEEN
OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.
THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SECURITIES
AND EXCHANGE COMMISSION.
Contract
Number #1000962
This
Telecommunications Services Agreement is made by and between Location Based
Technologies (“Customer”) a corporation incorporated under the laws
of Nevada and having offices at 0000 X. Xx Xxxxx Xxx., Xxxxxxx, XX 00000
and
KORE Telematics Inc., a corporation incorporated under the laws of Delaware
and
having offices at Suite 500 – 00000 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000
(“KORE”).
NOW
THEREFORE, in consideration of the mutual promises, obligations and
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree
as
follows:
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ARTICLE
1:
|
DEFINITIONS
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|
|
1.01
|
The
following terms shall have the following
meanings:
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“Airtime”
means the transmission and switching of signals on PCS carrier services provided
by KORE, including voice, data, and messaging transmissions using the
System.
“Airtime
Fees” means those fees as set forth in Attachment D for Airtime, or as otherwise
modified in accordance with this Agreement from time to time.
“Acceptance
Test Plan” means the acceptance test plan for device(s) and application(s) to be
conducted prior to initiation of the Commercial Service, as set forth in
Attachment B.
“Agreement”
means this agreement and any schedules appended hereto and referenced
herein.
“Attachment”
means an Attachment appended to this Agreement and referenced
herein.
“Business
Hours” means Monday to Friday, 9:00 am to 6:00 pm (Central Time), excluding
provincial, state or federal holidays recognized in Canada and the United
States.
“CDMA”
means digital wireless network based on the Code Division Multiple Access
technology
“Coverage”
means the areas of wireless services, as indicated on the KORE Website, which
may be updated from time to time.
“Computer
Systems” means computing and data processing systems, including hardware and
software.
“Commercial
Service” means the commercially supported introduction and marketing of Services
to Subscribers, by Customer.
1
“Customer”
means any corporation or individual who may acquire Services from KORE for
the
purpose of supplying these Services as a part of a complete wireless application
system, and not for the purposes or re-licensing, resale or redistribution
without integration with other products and/or services.
“Device”
means any mobile radio apparatus or telecommunication equipment, including
accessories enabling the transmission of data or voice, which: (i) is approved
under applicable regulation, (ii) is technically and operationally compatible
with the System, and (iii) when used in conjunction with a SIM Card, enables
a
Subscriber to have access to the Services.
“Effective
Date” means December 1, 2007.
“GPRS”
means General Packet Radio Service.
“GSM”
means digital wireless network based on the Global System for Mobile
Communications.
“Network
Operator” means a designated, regulated, operator that has been licensed to
establish and operate a PCS network in a respective regulated
market.
“Party”
means either KORE or Customer and “Parties” means both KORE and
Customer.
“PCS”
means a new generation wireless-phone technology that provides the user with
an
all-in-one wireless phone, paging, messaging and data service.
“Prepayments”
means any prepayment to be made by Customer prior to delivery of
service(s).
“Roaming”
means the use by a Device having a valid subscription, of the wireless
communications network established and operated by another licensed operator
pursuant to an agreement between licensed Network Operators.
“Service
Term” means the initial term of this Agreement, the “Initial Service Term” or
the “Service Renewal Term” as agreed
“Services”
means KORE wireless telecommunication products and services as described
in
Attachment A.
“Sub-reseller”
means a Customer of KORE that is allowed under this contract to resell wireless
services of Underlying Carriers provided by KORE to Customer’s
Subscribers.
“Subscriber”
means an individual or machine authorized by the Customer to use the Service(s)
for its own internal purposes.
“SMS”
means Short Messaging System and content delivery.
“System”
means the wireless communications network established and operated by the
Network Operator pursuant to its PCS license(s), in order to offer services
using technology based on the GSM, GPRS CDMA, 1xRTT or other
standards.
“System
Access Fees” (“SAF”) means the monthly access fee charged to Subscribers for the
provision of basic access to the Services.
“Underlying
Wireless Service Carrier” or “Underlying Carrier” means the Licensed Wireless
Services providers (including Cingular Wireless LLC and Xxxxxx Wireless
Inc), that KORE has contracted with to enable the provisioning of
wireless services, and who may or may not be beneficiaries to certain parts
of
this Agreement.
2
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ARTICLE
2:
|
OBLIGATIONS
OF THE PARTIES
|
|
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2.01
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Obligations
of KORE. KORE agrees
to:
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1. Use
all commercially reasonable efforts to provide Services in the coverage areas
specified in markets in which KORE network interconnects or roaming agreements
exist, and are subject to the availability of the local operator’s
network.
2. Comply
with all applicable laws and regulations respecting the provision of such
Services.
3. Provide
the Customer with service support as described in Attachment C.
4. Warrant
that all such services as delivered comply with any and all underlying
agreements with its network operator partners for onward sale and distribution
when used in compliance with the terms and conditions specified in this
agreement.
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2.02
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Obligations
of Customer. Customer agrees
to:
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1. Comply
with all terms and conditions of this Agreement, including those set forth
in
the attached Attachments.
2. Complete
and file necessary documentation required for certifying compliance of devices
and applications to be used in conjunction with the Services as outlined
in
Attachment B prior to launch of Commercial Service and to notify KORE in
writing
should any change affecting this compliance be made. Customer will be required
to provide to KORE a list of Devices for use on the System, and ensure necessary
Device certification and accreditation has been completed. All
devices must be submitted to KORE for network approval. All devices
requiring network approval must minimally utilize radio modem modules that
have
been PTCRB certified. KORE will provide Customer with a copy of all
such approval Guidelines and will provide reasonable advance notice of any
changes to the Guidelines. Customer agrees to comply with all terms and
conditions of the Guidelines. Customer shall provide, upon written request,
access to its premises to the person(s) designated by KORE to review Customer’s
compliance with the above requirements. Non-approved devices will not
under any circumstances be permitted to be used, except for limited testing
purposes under written agreement with KORE. Where Device certification is
deemed
by KORE or the Network Operator to be necessary or is mandated by the local
Underlying Carrier, the certification shall be undertaken by the Customer
and
all costs involved shall be the sole responsibility of Customer and/or the
Device manufacturer.
3. Ensure
that XXXX may only be activated on a Service Plan for use with applications
tested by KORE and approved by the Underlying Carrier (“Approved
Applications”). Applications will be subject to certain technical and
other requirements set forth by KORE, which requirements may change from
time-to-time. Customer agrees to provide any additional relevant information
regarding its application that may be necessary to review, test or assess
Customer’s application. KORE will have the right to require data from
Customer that demonstrates that Customer’s Subscribers are using the Service
only in connection with Approved Applications.
4. Ensure
that all of its network equipment and connecting facilities are technically
and
operationally compatible with the System and to ensure that they are approved
as
required for connection to the network.
5.
Carry out reviews and respond to requests for information by KORE on a timely
basis.
6. Provide
upon the Effective Date and on a Quarterly cycle thereafter, a 90-day forecast
to KORE, detailing their best estimates of SIM and telephone number requirements
identified in monthly periods. Quantities will not be binding on either
Party. KORE does not commit to provide SIM availability should
Customer fail to provide forecasts as required.
3
7. Ensure
at least one representative is available during regular Business Hours, and
otherwise available by phone or pager after hours, to provide the required
information and assistance in connection with the delivery of the Services,
with
appropriate access to Customer’s network, equipment or facilities to permit KORE
to provide the Services.
8. Maintain
the necessary services from third party service providers required to receive
the Services from KORE or to use the System, that are not otherwise identified
as being provided by KORE in this Agreement.
9. Pay
all charges invoiced by KORE including the Set-Up Fee, and all Prepayments
and
payment obligations as described in this Agreement in accordance with the
terms
of this Agreement.
10. Further,
Customer agrees to comply with the conditions of any publicly regulated PCS
license, together with any law, regulation, directive, ordinance and decision
of
any regulatory authority applicable to KORE as if they directly bind
Customer. Customer agrees to comply with any law, regulation,
directive, ordinance, and decision of any regulatory authority applicable
to
Customer or to the business operated by Customer, including preserving the
confidentiality and privacy of information relating to Subscribers.
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2.03
|
Customer
Acknowledgment.
|
Customer
acknowledges and agrees that KORE:
1. Is
not required to provide Services, and may withhold Services from Subscribers
or
Customers who, in the opinion of KORE, would compromise the business operations
or goodwill of KORE.
2. May
interrupt the Services of any applicable SIM at any time and for any period
of
time, without any liability on its part, when Customer fails to comply with
any
of its obligations under this Agreement, or where necessary to prevent the
improper or unlawful use of the System. Customer shall be responsible for
all
costs of KORE related to necessary testing or restoration, unless determined
to
be the fault of KORE. However, if breach arises in whole or in part
from Customer’s failure or alleged failure to disclose information to KORE or
third parties, said failure or alleged failure may not be the basis for
termination or claiming material breach hereunder unless KORE has given written
notice of this omission to Customer within thirty (30) days of the date that
KORE becomes aware of such breach.
3.
Reserves its right to interrupt Services at any time and for any duration
to
prevent improper or unlawful use of Services or System, without any liability
on
its part.
4. Status
and Obligation of Customer to comply as Subreseller:
Customer
expressly acknowledges that KORE has entered into long-term agreement(s)
with
Underlying Carriers in its primary markets. Under the terms of these agreements,
KORE purchases wireless services and resells these services in conjunction
with
approved applications. Customer agrees to be bound by the following general
terms:
|
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a)
|
Restrictions. A
wireless number may not be associated with more than one SIM at
the same
time. Furthermore, Underlying Carrier has the right to deny
Service at the point of activation to XXXx appearing on Underlying
Carrier’s service deny lists for one of a variety of reasons, including
cases where the SIM is stolen, has been used for fraudulent purposes,
is
not used in an “Approved Device” (defined below), or is
defective. Underlying Carrier is not liable to Subreseller or
End Users if Service is denied, or a requested modification is
not made to
a SIM appearing on the then-current service deny
lists.
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4
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b)
|
Required
Disclosures. Customer acknowledges and agrees to the
following and also agrees that it will disclose the same provisions
to its
Subscribers:
|
Customer
has no contractual relationship with the underlying wireless service carrier
and
the customer is not a third party beneficiary of any agreement between KORE
and
the Underlying Carrier. Customer understands and agrees that the
Underlying Carrier shall have no legal, equitable, or other liability of
any
kind to the customer or its subscribers. In any event, regardless of
the form of the action, whether for breach of contract, warranty, negligence,
strict liability in tort or otherwise, customer’s exclusive remedy for claims
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 the customer for the services during the two (2)-month period
preceding the date the claim arose.
Customer
shall indemnify and hold harmless the underlying wireless service carrier
and
its officers, employees, and agents against any and 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.
Customer
has no property right in any number assigned to it, and understands that
any
such number can be changed from time to time.
Customer
understands that KORE and the Underlying Carrier cannot guarantee the security
of wireless transmissions, and will not be liable for any lack of security
relating to the use of the services.
c) Additional
Disclosure to Subscribers. Customer will also disclose to
Subscribers the following provision:
The
service is for subscriber’s use only and subscriber may not resell the service
to any other party.
d) Limitations
on Service.
Customer
understands and acknowledges that service is made available only within the
operating range of the network. Service may be temporarily refused,
interrupted, or limited because of: (a) facilities limitations; (b)
transmission limitations caused by atmospheric, terrain, other natural or
artificial conditions adversely affecting transmission, and other causes
reasonably outside of the Underlying Carrier’s control; or (c) equipment
modifications, upgrades, relocations, repairs, and other similar activities
necessary for the proper or improved operation of
service. Connections may be “dropped” (i.e., involuntarily
disconnected) for a variety of reasons, including, without limitation,
atmospheric conditions, topography, weak batteries, system overcapacity,
movement outside a service area or gaps in coverage within a service
area. Neither KORE nor the Underlying Carrier shall incur any
liability for the failure to provide adequate services
hereunder. Neither KORE nor the Underlying Carrier makes any
warranties or representations as to the availability or quality of roaming
service provided by other wireless carriers, where available, and neither
KORE
nor the Underlying Carrier shall have any liability whatsoever for any errors,
outages, or failures of roaming services provided by other wireless
carriers.
5
e)
SIM Prohibitions. Customer must not:
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(i)
|
insert
the XXXx into devices bearing an Underlying Xxxxxxx xxxx, or
purchased
from an Underlying Carrier that has been previously packaged
with an
Underlying Carrier SIM;
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(ii)
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sell
or convey in any manner XXXx, whether separately or together
with an
Approved Devices, to any individual or entity other than the
expected End
User of that SIM and device; or
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(iii)
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program,
reprogram, or tamper with the XXXx in any
manner.
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f)
Trans-shipped Devices. Customer shall not activate
any device it has reason to believe was sold by an Underlying Carrier to
one of
the Underlying Carriers dealers or retailers. Those sales are made on the
condition that the devices will not be trans-shipped (i.e. re-sold to
third-party retailers or wholesalers).
g) Fraudulent
Use. Service to a SIM may be restricted or cancelled if
there is a reasonable suspicion of abuse or fraudulent use. Customer
agrees to make good faith efforts to minimize abuse or fraudulent use, to
promptly report to Reseller any such abuse or fraudulent use of which Customer
becomes aware, and to cooperate in any investigation or prosecution. 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 to the wireless network;
(iii) installing
any amplifiers, enhancers, repeaters, or other devices that modify the radio
frequencies used to provide the Service;
(iv) subscription
fraud;
(v) 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 KORE’s or the Underlying Carrier’s ability to provide
Service;
(vi) using
Service to convey obscene, salacious, or unlawful information;
(vii) using
Service without permission on a stolen or lost device;
(viii) unauthorized
access.
h) Miscellaneous. Customer
will comply with all applicable laws, rules and regulations in connection
with
the Customer’s Agreement. The Underlying Carrier is a third party
beneficiary of this Customer Agreement, and may take any equitable or legal
action required to enforce its provisions and the terms and conditions of
the
Agreement.
i) Use
of Marks. Customer will not use any of the Underlying Carrier’s
Trademarks, Service Marks, name, logos or other intellectual property (“Marks”)
without the consent of the Underlying Carrier with regard to the Customer’s
specific use of the Underlying Carrier’s Marks. The Underlying
Carrier’s consent to allow KORE to use such Marks may not be considered consent
for Customer to use such Marks unless Customer is specifically
mentioned.
6
j)
Right of Refusal. The Underlying Carrier has the
right at any time, at its sole discretion, to disapprove of any Customer
or
Application of a Customer. Upon written request, the Underlying
Carrier will provide KORE and the Customer with its reasons for disapproval
and
will provide KORE and the Customer with a reasonable opportunity to seek
resolution of the Underlying Carrier’s concerns within 30 days. The
Underlying Carrier also has the right to require the removal of any Approved
Customer whose acts or omissions would, if committed or omitted by KORE,
constitute a breach of, or default under the KORE Agreement. The
Customer acknowledges that KORE must immediately terminate its relationship
with
the Customer if the Underlying Carrier notifies KORE that the Customer is
no
longer approved based upon the Underlying Carrier’s reasonable
determination.
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________________________________
Section
2: Acknowledged and Agreed
|
|
ARTICLE
3:
|
TERM
AND SERVICE TERM
|
3.01 This
Agreement shall be effective as of the Effective Date, and shall remain in
full
force and effect until otherwise terminated as provided herein.
3.02
The Initial Service Term will be for a period of 24 months, commencing on
execution of this Agreement. Thereafter, the Service Term may be renewed
for
additional 12-month terms at the end of each 12-month term, for a maximum
total
of 60 months (each a “Service Renewal Term”), by request in writing by Customer
30 days prior to renewal date. KORE will review the underlying operators
agreement and current terms during the final year of the contract. Should
Customer not request renewal, the contract may continue on a month-by-month
basis and subject to termination at any time unless otherwise terminated
as
provided in Section 5.01 (a).
3.03 Fees
for Services, including any one-time fees, annual minimum committed revenues
and
monthly recurring Services fees are set out in Attachment D, and apply
throughout the Service Term of this Agreement. Such fees may be changed from
time to time, as provided in 4.01.7 below.
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ARTICLE
4:
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PAYMENT
|
4.01 Payment
Frequency.
1.
Airtime Fees, as defined in Attachment D, will be due and payable within
30 days
following the date of invoice, without reduction or set off.
2.
SIM cards and other equipment ordered from KORE and designated “Customer owned”
in this Agreement will be invoiced on the shipment date. Fifty
percent (50%) of payment is due upon shipment, and the balance of
fifty percent (50%) is payable within 30 days following the date of
invoice.
3.
Set-up fees, minimum charges or Pre-Payments will be due and payable
within 30 days following the date of invoice.
4.
System Access Fees will be charged monthly, in advance, based upon the closing
number of active devices from the previous month. Devices deactivated in
any one
month shall continue to bear System Access Fee charges for the balance of
that
month. Devices added during any month will be pro-rated and charged at month
end, and will be due payable as set out in 4.01.1 above.
5.
All payments to KORE shall be made in the lawful currency of the United
States of America and all amounts referred to in this Agreement are in the
lawful currency of USA unless otherwise stated.
7
6.
Fees do not include duties, import taxes or any other
government charges, regulatory fees or taxes assessed or
payable. Customer is responsible for payment of all taxes (including
without limitation, withholding, value added and use taxes) and duties
applicable to the amounts payable under this Agreement, including any amounts
(an interest applicable to such charges) charged in lieu thereof, and interest
thereon.
7.
KORE shall have the right to change any rates for Services upon
thirty (30) days prior written notice to Customer. Such changes will
be provided in writing to the address and name shown in this Agreement, and
be
deemed as a modification to this Agreement. Should the change in monthly
rates
exceed in aggregate for Services provided 15% in any 12 month period, then
the
Customer shall have the subsequent right to terminate this Agreement upon
thirty
(30) days written notice to KORE without incurring penalties.
8.
The Customer shall pay KORE all amounts billed by KORE, subject to disputed
amounts 4.03 below.
4.02
Credit Review. KORE reserves its right to review Customer
credit worthiness and to require a prepayment or deposit before providing,
continuing, or reinstating Services. KORE will require a minimum credit
capability equivalent to three (3) months of projected service and SIM fees,
inclusive of taxes. Should KORE at any time consider a credit deposit to
be
insufficient, a further credit deposit may be required to meet this level.
KORE
will determine, at its discretion, how the Customer deposit be allocated
to
satisfy outstanding amounts owed by Customer to KORE. Customer hereby authorizes
KORE to investigate the Customer’s creditworthiness and agrees, from time to
time, to provide appropriate authorizations and financial information as
KORE
may reasonably request for this purpose.
4.03
Disputed Invoices. In the event Customer disputes any charges,
Customer shall notify KORE in writing of any amounts in dispute within thirty
(30) days of date of the KORE invoice. Customer is required to remit all
amounts, which are not disputed as required herein, whether or not contained
on
the same invoice Failure to notify KORE as required herein shall be deemed
an
acceptance of the accuracy of the invoiced amounts by the Customer. KORE
shall
promptly review any amounts in dispute and notify the Customer in writing
within
ten (10) days of the receipt of the Customer notice of the results of any
KORE
review. For any disputed amount agreed to by KORE, KORE shall provide
a credit to the Customer for this amount and/or may apply such credit against
amounts otherwise owing by Customer..
In
the
event KORE does not agree with the disputed amounts claimed by Customer,
the
following dispute process shall be utilized:
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(a)
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Each
party shall appoint a Representative and shall advise each other
party of
the name and relevant contact information for such
Representative. The Representative of the Customer shall be
responsible for coordinating an initial meeting of all Representatives,
via teleconference call or otherwise, to discuss the alleged dispute
and
to determine a course of resolution;
and
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|
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(b)
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Should
the Representatives not have agreed to a written resolution of
the dispute
within thirty (30) days of the initial meeting under paragraph
(a) then
the parties may extend this resolution period for an additional
period of
time. However, at any point after the initial 30-day period, should
a
party determine (acting reasonably) that a timely resolution will
not
occur, such party shall be entitled to terminate this dispute resolution
process upon written notice to the other. Should the Customer remain
in
default for invoiced amounts, after KORE has provided appropriate
proof of
usage of network services through billing records obtained from
network
elements, then KORE shall have the right to suspend or terminate
service
as contained in 4.04 below
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4.04
Late Payments. If Customer payments are more than fifteen days
(15) calendar days in arrears from the dates shown in 4.01 above, KORE will
give
written notice to Customer that Customer is responsible for payment of all
outstanding amounts (including applicable finance charges). If Customer does
not
pay the outstanding amounts within fifteen (15) calendar days of confirmed
dispatch of such notice by Customer to the address and name contained in
this
Agreement, KORE will suspend Service to existing
Subscribers. Reconnection of Services will be at KORE discretion, be
subject to confirmed receipt of all overdue amounts, and may be subject to
any
then prevailing reconnection fee. Late payments will be assessed a 1.5% finance
charge per month (18% per annum on the monthly balance including interest).
All
such finance charges shall automatically begin to accrue on overdue amounts
starting on the thirty first (31st) day following invoice date. Customer
shall
pay all costs, including reasonable attorney’s fees, incurred by KORE in
collecting overdue amounts. Any NSF checks will be subject to a
$75.00 NSF charge for each NSF check.
8
4.05
Repeated Failure to Pay. Should Customer payments be
outstanding for more than 60 days from date of invoice as defined in 4.04
on
more than two occasions in any 12 month period, KORE will have the right,
in its
sole discretion, to terminate this Agreement , as specified in 5.02 (b)
below.
4.06
Prepayment. KORE will notify Customer, in writing, of the
requirement for Prepayments to be made for services provided under this
Agreement. Prepayments shall be a minimum of Customers projected three months
use of Airtime, Airtime Fees, Services and applicable taxes if:
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|
(a)
|
The
Customer is not able to establish credit terms, acceptable to KORE,
from
time-to-time, as specified in paragraph 4.02 above
or;
|
|
|
(b)
|
Has
been in default in meeting payment terms as specified in paragraph
4.05
above
|
All
Services will be charged against this Prepayment on a monthly basis. Should
the
Customer use Airtime, Airtime Fees, Services and applicable taxes equivalent
to
one month of projected service use without replenishment of the Prepayment,
all
provisions of clause 4.04 above shall apply.
If
the
Customer has not used a portion of Airtime, Airtime Fees, Services and
applicable taxes of the Prepayments at the termination of this Agreement,
the
Prepayments will expire and deemed to be fully earned by KORE.
If
the
Customer terminates this Agreement before the end of the Prepayment Period,
the
Prepayments will not be refunded.
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ARTICLE
5:
|
TERMINATION
AND EFFECTS OF TERMINATION
|
5.01 Either
party will have the right to terminate this Agreement:
|
|
(a)
|
Upon
written notice to the other at least 30 calendar days prior to
the end of
the Initial Service term or any Service Renewal
Term;
|
|
|
(b)
|
If
the other party is in breach of any of its material obligations
and the
breach is not cured within thirty (30) calendar days of the other
party’s
written notice specifying the nature of the breach. “However,
if breach arises in whole or in part from Customer’s failure or alleged
failure to disclose information to KORE or third parties, said
failure or
alleged failure may not be the basis for termination or claiming
material
breach hereunder unless KORE has given written notice of this omission
to
Customer within thirty (30) days of the date when KORE becomes
are of such
breach.
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|
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(c)
|
Immediately
and without further notice, in the event a party ceases business
operations, is the subject of any bankruptcy, insolvency, or similar
proceeding, becomes insolvent, or makes an assignment for the benefit
of
creditors, or a receiver is appointed for a substantial part of
such
party’s assets, or becomes unable to pay its debts when
due.
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(d)
|
If
KORE fails to maintain current agreements with Network Operators
for the
provision of airtime, other services, and access to the Systems
that
enable KORE to provide Services to Customer and/or KORE is no longer
able
to provide Services to Customer’s
Subscribers.
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9
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(e)
|
Should
the change in monthly rates exceed in aggregate for Services provided
15%
in any 12 month period, then the Customer shall have the subsequent
right
to terminate this Agreement upon thirty (30) days written notice
to KORE
without incurring penalties.
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5.02
|
KORE
may terminate this Agreement and suspend service without further
notice
if:
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|
|
(a)
|
Customer
is in breach of its authorized use of telephone numbers provided
by KORE
and fails to cure such breach within three (3) business days of
receipt of
written notice by KORE.
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(b)
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Customer
has repeatedly failed to pay, as defined in 4.05 above, and such
failure
has not been cured within three 3 business days of receipt of written
notice by KORE.
|
|
|
5.03
|
In
the event of termination or expiration of this Agreement without
cause:
|
|
|
(a)
|
Customer
will remit all undisputed amounts due and owing as of the date
of
termination, within 30 days of the date of termination, with disputed
amounts to be discussed and agreed according to section
4.03;
|
|
|
(b)
|
KORE
will cease to provide any Services or support to Customer, except
as
provided in (c) below;
|
|
|
(c)
|
At
Customer’s option, KORE will continue to provide Service for any or all
of
Customer’s Subscribers as of such termination, under terms and conditions
consistent with this Agreement. Customer and KORE shall work
together for the orderly transition of Subscribers, including access
as
required to Customer service platforms necessary to provide such
service.
KORE shall xxxx Subscribers directly under its standard credit
terms
prevailing at that time. It is expressly understood that in providing
this
service, KORE shall not be obligated or required to assume any
commitments
or liabilities (whether contractual or otherwise) made by Customer
to
Subscribers. The assumption of responsibility for such Services
will be
subject to KORE then-current terms and
conditions;
|
|
|
(d)
|
After
the expiration of the Service Term, the Subscriber may be transferred
to
an alternate Service Provider or Network Operator, at the option
of the
Customer.
|
|
|
5.04
|
In
the event of termination of this Agreement by KORE for cause or
non-payment, KORE may, at its
option:
|
|
|
(a)
|
Assume
responsibility for providing such Services to support Subscribers
willing
to agree to KORE’s then-current terms and conditions;
or
|
|
|
(b)
|
Transfer
Subscribers to an alternate Service Provider or Network Operator
of their
respective choice.
|
|
ARTICLE
6:
|
WARRANTIES
AND LIMITATIONS OF
LIABILITY
|
|
|
6.01
|
Limited
Warranty.
|
KORE
warrants that it will provide all services in a professional manner, in keeping
with industry standards. To the extent KORE fails to do so, KORE will re-perform
the services at its sole cost and expense. The foregoing shall be the sole
liability of KORE for breach of this warranty and customer’s sole remedy (other
than its rights of termination as provided herein). Other than as expressly
set
out herein, KORE makes no representation, covenant or, warranty, either express
or implied, written or oral, arising by operation of statute, law, usage
of
trade, course of dealing or otherwise with respect to the services, system,
computer systems or other products or services provided hereunder or in
connection herewith, including without limitation, implied warranties of
merchantability, merchantable quality, satisfactory quality, fitness for
a
particular purpose, title or non-infringement. Moreover, KORE makes no warranty
with respect to SIM cards, devices and telephone numbers, or other third
party
supplied components. Any applicable warranty relating to the foregoing shall
be
that of the manufacturer or supplier of such items.
10
Customer
is responsible for ensuring that customer and subscriber access to the services
and system within the applicable jurisdiction is in compliance with applicable
laws and KORE makes no representations or warranties with respect thereto.
KORE
reserves the right, in its sole discretion and without any obligation, to
make
improvements to, or correct any error or omissions in any portion of the
system,
which may or may not affect customer and subscriber access to the
system.
KORE
makes no representations concerning any endeavor to review any of the sites
accessed through the system, and KORE shall not be responsible for the accuracy,
copyright compliance, legality or decency of materials contained in sites
accessed through the system.
|
|
6.02
|
Limitation
of Liability:
|
Neither
KORE nor its network operator partners or suppliers shall have any liability
to
customer or subscriber or any other person or entity for any indirect,
incidental, special, or consequential damages whatsoever, including, but
not
limited to, loss of revenue or profit, lost or damaged data, downtime or
other
commercial or economic loss, even if KORE has been advised of the possibility
of
such damages, or they are foreseeable. KORE is also not responsible
for claims by a third party.
In
addition and without limiting the foregoing, KORE is not liable for any delays
in service implementation or delivery, except to the extent caused by its
gross
negligence. Customer acknowledges and agrees that the customer is responsible
for ensuring that the services meet Customer requirements.
KORE
aggregate liability for any cause of action, whether in contract (including
fundamental breach) or tort (including negligence or strict liability), shall
be
limited to customer’s directly incurred costs and shall not exceed in the
aggregate the fees paid by customer for the services giving rise to the claim
in
the one month period immediately preceding the claim, pro-rated according
to the
affected period of alleged breach.
The
limited warranty, exclusive remedies and limited liability set out herein
are
fundamental elements of the basis of the bargain between the customer and
KORE.
Customer acknowledges and agrees that KORE would not be able to provide the
services at the prices charged without such limitations.
|
ARTICLE
7:
|
CONFIDENTIALITY
AND OWNERSHIP
|
Each
party agrees to keep confidential any and all information with respect to
the
other party or the Network Operator partners which it has received or may
in
future receive in connection with this Agreement, which shall include without
limitation, the terms and conditions of this Agreement and, with regard to
KORE
Confidential Information, includes any information with regard to the Services
which KORE provides to Customer (the “Confidential Information”) and shall only
disclose such information (i) to its agents, employees or representatives
who
have a need to know such information, for the purpose of performance under
this
Agreement and exercising the rights granted under this Agreement and who
have a
non-disclosure agreement at least as protective of the disclosing party’s
confidential information as this Agreement, or (ii) to the extent required
by
applicable law or during the course of or in connection with any litigation,
arbitration or other proceeding based upon or in connection with the subject
matter of this Agreement, provided that the receiving party shall give the
disclosing party reasonable notice prior to such disclosure and shall comply
with any applicable protective order or equivalent.
KORE,
Network Operators and any other suppliers or licensors of KORE shall own
and
retain all right, title and interest in and to all products, materials or
services, including without limitation, all Confidential Information, provided
under this Agreement or in connection with this Agreement. Customer gains
no
right, title or interest with respect thereto except for the limited rights
to
use as expressly granted herein. All rights not expressly granted herein
are
hereby reserved.
11
|
ARTICLE
8:
|
DISPUTE
RESOLUTION PROCESS
|
The
Parties agree that any dispute, controversy or claim arising out of or relating
to this Agreement, (except for an amount billed by KORE to the Customer which
shall be settled according to the terms described for invoice disputes),
shall
first be attempted to be settled by the following dispute process:
Each
party shall appoint a representative (the “Representative”) to represent it and
they shall consult and negotiate with each other, in good faith and
understanding of their mutual interest, to reach a just and equitable resolution
satisfactory to both as follows:
|
|
1.
|
Internal
Dispute Process.
|
|
|
a)
|
The
party alleging the dispute shall provide written notice to the
other
parties, which notice sets out the relevant and material issues
surrounding the alleged dispute, or other issues as such party
determines
are relevant to resolution of the
dispute;
|
|
|
b)
|
Within
forty-eight (48) hours of receipt of such notice, each party shall
appoint
a Representative and shall advise each other party of the name
and
relevant contact information for such Representative. The
Representative of the party providing the original notice under
paragraph
‘A’ shall be responsible for coordinating an initial meeting of all
Representative, via teleconference call or otherwise, to discuss
the
alleged dispute and to determine a course of
resolution;
|
|
|
c)
|
Should
the Representatives not have agreed to a written resolution of
the dispute
within sixty (60) days of the initial meeting under paragraph ‘B’, then
any party shall be entitled to terminate this dispute resolution
process
upon written notice to the other.
|
|
|
2.
|
Arbitration.
|
Failing
settlement as outlined above, the dispute claim or controversy shall be settled
by arbitration in accordance with (a) the rules and procedures of the American
Arbitration Association in accordance with the provisions of its Commercial
Arbitration Rules (including the emergency Interim Relief Procedures), and
its
successor rules or replacement rules for Customers located in the United
States;
or (b) pursuant to the Arbitration and Mediation Institute of Canada’s Rules of
Procedure for Commercial Arbitration and any applicable laws within the Province
of Ontario for Customers located in Canada, and judgment on the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The parties shall cooperate with the arbitrator and with each other in selecting
one (1) arbitrator from a panel of neutrals, and in scheduling the arbitration
proceedings. To decide the dispute, the arbitrator shall apply (a)
for Customers located in the United States, the federal laws of the United
States and the state laws of the State of Delaware; or (b) for Customers
located
in Canada, the federal laws of Canada and the provincial laws of the Province
of
Ontario. The Parties covenant that they will share equally in the
costs for the arbitration proceedings; however, the arbitrator shall have
the
authority to award the prevailing party recovery of all costs, fees and
expenses, including attorneys’ fees to be paid by the party against whom
enforcement is ordered.
The
decision of the arbitrator shall be binding upon the parties, and judgment
on
the award may be entered in any court of competent jurisdiction. The
Parties agree that the arbitrator shall have the authority to issue interim
orders for provisional relief, including, but not limited to, orders for
injunctive relief, attachment or other provisional remedy, that shall be
enforceable in any court of competent jurisdiction. Additionally,
although the procedures specified in this section of this Agreement are the
sole
and exclusive procedures for the resolution of disputes arising out of or
relating to this Agreement, nothing in this Agreement shall be deemed as
preventing either party from seeking provisional relief from any court of
competent jurisdiction if the party seeking such relief reasonably believes
such
action is necessary to avoid irreparable harm to itself or to preserve its
rights under this Agreement or from seeking indemnification pursuant to the
indemnification provisions of this agreement.
12
Pending
final disposition of any dispute under this Agreement the parties agree to
proceed diligently and in good faith with the performance of this Agreement,
including without limitation the dispute resolution process described above,
and
to comply with all terms and conditions herein
|
ARTICLE
9:
|
MISCELLANEOUS
|
9.01 Entire
Agreement; Amendment. This Agreement and the Attachments sets out the
entire agreement between the parties concerning the matters described above
and
supersede all prior written or oral agreements, understandings. No
order, invoice or similar document shall amend or modify the terms of this
Agreement, even if accepted by the receiving party. KORE expressly reserves
its
right to amend Attachments upon 30 days prior notice to Customer. Except
as
provided for herein, this Agreement may only be amended by consent in writing
of
both parties.
9.02 Assignment.
KORE may assign all or any part of this Agreement, but no assignment or transfer
of any interest in this Agreement (including sublicenses, pledge, security
interests, and the like) may be made by the Customer without the prior written
consent of KORE. The Customer agrees that if the Customer assigns this
Agreement, or transfers or assigns any of the Customer’s interests in receiving
Services, that the assignee shall be bound by and comply with this Agreement
and
all its terms unless and to the extent KORE has provided discount or other
preferred pricing to Customer, such pricing may not be applicable to Customer’s
assignee, in which case revised terms shall be provided in writing by KORE
to
assignee. Customer acknowledges that KORE may sub-contract the provision
of
Services under this Agreement including but not limited to its Network Operator
partners.
9.03 Non-exclusivity.
Nothing in this Agreement shall limit the other from pursuing alternative
supplier and supply relationships.
9.04 No
Limitation. Except as expressly set out herein, nothing in this
Agreement is intended to waive or limit any remedy available to either party
at
law or in equity, including without limitation any remedy available to KORE
under copyright laws or other laws to protect the ownership or intellectual
property rights of KORE or its suppliers.
9.05 Failure
to Enforce; Severance. A failure by either party to enforce any right
under this Agreement shall not at any time constitute a waiver of such right
or
any other right, and shall not modify the rights or obligations of either
party
under this Agreement. If any provision of this Agreement is declared
by a court of competent jurisdiction to be invalid, illegal, or unenforceable,
such a provision shall be deemed severed from the Agreement and the other
provisions shall remain in full force and effect.
9.06 Force
Majeure. Except for obligations of payment arising hereunder, neither
party will be liable for delays in its performance hereunder due to causes
beyond its reasonable control, including but not limited to, acts of God,
acts
of public enemy, acts of government, regulatory authorities, or courts of
law or
equity, civil war, insurrection or riots, fires, floods, explosions, earthquakes
or other casualties, strikes or other labor troubles, or failure of third
party
service providers or telecommunications networks or devices always provided
that
the party so relieved of its obligations hereunder provides notice to the
other
party and takes all reasonable and necessary steps to resume performance
of its
obligations as soon as possible.
9.07 Notice.
Any notice to a party required or permitted hereunder shall be sufficiently
given only when provided in writing, and either personally delivered to a
responsible officer of the addressee, or sent via certified or registered
mail
(return receipt required) or facsimile (with proof of transmission) to the
party’s address indicated herein and shall be deemed to have been received when
such notice should have reached the addressee in the ordinary course, provided
there is no strike by postal employees in effect or other circumstances delaying
mail delivery, in which case notice shall be delivered by facsimile (with
proof
of transmission).
13
The
addresses and designated individuals as set forth below or as otherwise notified
to the other Party from time to time:
|
For
The Customer: Location Based Technologies
|
For
KORE:
|
|
Attention: Xx.
Xxxxxxx Xxxxx
|
Attention: Xxxxxx
To
|
|
COO
and Company Secretary
|
AVP
Finance and Company Secretary
|
|
Address: 0000
X. Xx Xxxxx Xxx., Xxxxxxx, XX 00000
|
Address: 403
– 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, X0X 0X0 Xxxxxx
|
|
Facsimile
#: 000 000-0000
|
Facsimile
#: + 0 (000) 000 0000
|
9.08 Applicable
Laws. This agreement will be with KORE Telematics Inc. and will be
governed by the laws of State of New York. In case of conflicts of laws
provisions, the UN Convention for the International Sale of Goods, and the
Uniform Commercial Code, and any legislation implementing the foregoing
Convention and Code, are expressly excluded. Each party waives trial by jury,
except where such waiver is not permissible at law.
9.09 Surviving
Provision. The following Articles and Sections will survive termination
or expiration of this Agreement for any reason: Sections: 2.03, 5.03, 5.04
and
Articles: 6, 7, 8, 9.04 and 9.05
9.10 Language.
The original of this Agreement has been written in English and Customer waives
any right it may have under the laws of its territory to have this Agreement
written in any other language. Customer represents that it has the
ability to read and write in English and has read and understands this
Agreement. If this Agreement is translated into a language other than English,
the English version and interpretation shall govern and prevail. All
communications between the parties hereunder shall be in English. Les parties
aux présentes ont exigé que cette entente et tous autres documents envisagés par
les présentes soient rédigés en anglais.
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
duly
authorized signing authorities this 30th day of November 2007.
| KORE | CUSTOMER | |||
| KORE Wireless Inc. | ||||
|
/s/
Xxxxxx
To
|
/s/
Xxxxx X.
Xxxxx
|
|||
|
Name: Xxxxxx
To
|
Name:
Xxxxx X.
Xxxxx
|
|||
|
Position: VP-Finance
|
Position: Co-President
and CEO
|
Schedules
that form part of this Agreement
Attachment
A: Basic
Service Definitions
Attachment
B: Application
Acceptance Test Requirements
Attachment
C: Service
Level Metrics and Escalation Policies
Attachment
D: Pricing
and Authorized Market Schedule
14
Customer
Contacts and Authorities (Admin)
|
Name:
Tel
#:
Email
Address:
Functional
Area:
Address
(if different from Contract Address):
Authorized
for:
Accounting/Finance
Information Y
/ N
PRISM
Password Access
(Activations) Y
/ N
Technical
Ticket
Escalation Y
/ N
|
Name:
Xxxxxxx
Xxxxx
Tel
#: 000-000-0000 or
000-000-0000
Email
Address:
xxxxxxx@xxxxxxxxxxxx.xxx
Functional
Area:
COO
Address
(if different from Contract Address):
Authorized
for:
Accounting/Finance
Information Y
/ N
PRISM
Password Access
(Activations) Y
/ N
Technical
Ticket
Escalation Y
/ N
|
Customer
Contacts and Authorities (Technical)
|
Name:
Tel
#:
Email
Address:
Functional
Area:
Address
(if different from Contract Address):
Authorized
for:
Accounting/Finance
Information Y
/ N
PRISM
Password Access
(Activations) Y
/ N
Technical
Ticket
Escalation Y
/ N
|
Name:
Tel
#:
Email
Address:
Functional
Area:
Address
(if different from Contract Address):
Authorized
for:
Accounting/Finance
Information Y
/ N
PRISM
Password Access
(Activations) Y
/ N
Technical
Ticket
Escalation Y
/ N
|
15
Attachment
A
Basic
Service Definitions
Services
and Network
KORE
will
be responsible for all of the activities in connection with the provisioning
of
its network in order to meet the Customer’s forecast.
KORE
will
be entitled at any time to modify, expand, improve, test, maintain or repair
the
System and to suspend providing the access to the System for such purposes
as
described in this Schedule A or the Agreement.
Telephone
Numbers
Telephone
numbers are provided for all wireless attached devices, for billing and network
administration purposes. For M2M applications, the telephone number is a
non
dial-able, non routable number and is not visible to the
Subscriber.
Customer
will order telephone numbers exclusively from KORE, and each order shall
be per
point of interconnection or as otherwise required by a regulatory authority
and
will register them all in its Computer System, or other such recording system.
Customer has no right of ownership to the telephone numbers, which are a
limited
public resource. KORE reserves the right to transfer or change
telephone numbers, when, in its discretion exercised in a reasonable manner,
it
determines that such transfer or change is necessary in the conduct of its
business, or when a change is required by a regulatory authority or by industry
agreement concerning the administration and assignment of telephone numbers,
including number portability. Customer shall use the telephone
numbers provided by KORE only for the provision of Services to Subscribers
in
accordance with the terms of this Agreement.
In
the
event that KORE cannot obtain a sufficient quantity of telephone numbers
and an
allocation is required in any coverage area, KORE may allocate telephone
numbers
on a pro rata basis among its customers and KORE’s service providers based on
the relative number of subscribers across all coverage areas. KORE
may also withdraw from a Customer any telephone number made available to
Customer which remains unused or is unassigned for any reason for a continuous
period of three (3) months, subject to a ten (10) day prior notice, and allocate
it in the same manner as above without any liability. KORE will
Endeavour to keep telephone number changes to a minimum. KORE shall
provide Customer with written notice of any intended change reasonably in
advance of making any such change.
GPRS
Network Services
General
Packet Radio Service (GPRS) is a non-voice value-added service that enables
Subscribers to send and receive data by utilizing a packet-switched network,
which is overlaid with the existing GSM air interface.
GPRS
Related services
Access
Point Names (APN)
Customer
will be given access to one (or more) defined KORE APN’s, as defined by market
and in the Network Services Guidelines, which must be used at all
times.
Authentication
Authentication
may be required in addition to the regular authentication mechanism already
provided by the GSM network (i.e., the IMSI).
16
IP
addresses
Dynamic
private IP addresses only are supported.
DNS
The
Domain Name Server (DNS) is used to resolve Internet Names (FQDNs – Fully
Qualified Domain Names) into routable IP addresses.
IP
Routing
The
GPRS
network and IP backbone are configured to route all IP packets to, and from
the
mobile subscribers. IP connections can be established with Internet
remote hosts or to service nodes within the network.
SMS
Network Services
A
device
will have the capability to send (i.e. originate) alphanumeric
messages. The System will acknowledge receipt of a message and then
attempt to deliver the message to the designated recipient. End to
end acknowledgment can be made available upon special request, (i.e. the
sender
receiving a confirmation that the designated recipient received the message)
but
may be limited due to certain limitations within the device or proper SMPP
protocol utilization.
An
active
telephone number is used to reference the device for SMS
Services. Device-to-Device, SMPP Short Code and SMPP Virtual Number
communications are available.
SMPP
Connectivity
The
protocol required to access the SMS-C environment is SMPP
(version 3.4). Physical interconnection to the SMS-C
environment can be via VPN or regular Internet.
Under
this configuration, access to the Short Message Service Center (SMS-C)
environment will be given to the customer via an agreed upon gateway, which
will
interface with Customer’s application server. It handles the SMS messages
delivered to or, submitted from, the subscribing device.
Services
can be defined as follows:
|
|
•
|
SMS
Mobile Originate (SMS MO) - SMS (MO) can be sent using either a
remote
application server to exchange short messages with subscribers
on the
System or utilizing Short Message Service (SMS) to exchange messages
from
device to device.
|
|
|
•
|
SMS
Mobile Terminate (SMS MT) - SMS (MT) can be either to a remote
application
server or a GSM device.
|
|
|
•
|
Short
Codes - Short Codes are typically six digit routing numbers that
are used
to identify a specific application for the purpose of routing and
billing. Short Codes can be provisioned upon special request
provided there is sufficient lead-time. Restrictions on the
number or Short Codes provisioned may apply subject to
availability.
|
|
|
•
|
Virtual
Number – Virtual Numbers are provisioned 10-digit numbers dedicated to
each KORE account, used to identify a specific application or
route. Virtual number connections provide 2-way communication
to/from third party (non-KORE) PCS networks
worldwide.
|
Usage
Services for Customer Billing
If contracted,
KORE will provide Customer with a detailed monthly usage file in a KORE standard
electronic file format, inclusive of account activity by
Subscriber.
17
Subscriber
Interface Modules (‘SIM’s’)
SIM
cards
are sourced exclusively from KORE. A purchase order entered through
KORE’s PRISM Customer Gateway for the supply of SIM cards indicating the
quantity of SIM cards ordered with a requested delivery date, allowing for
a
minimum of two weeks for delivery, is required.
Customer
will use the SIM’s solely in the assembly of their Devices.
SIM
Card Activation
Customer
will activate their device by utilizing the KORE PRISM™ Web Services Gateway.
Should Customer elect to activate manually, this can be done by calling KORE
Customer Services during normal business hours. Activations will normally
be
completed within 4 hours of request. There may be an additional charge for
this
service.
SIM
Card Deactivation
KORE
will
deactivate individual SIM cards where KORE suspects fraudulent use, misuse,
loss
or theft of a SIM card. Customer deactivation of SIM cards may be completed
via
PRISM or by phone directly during normal business hours. or to KORE Technical
Support line outside of KORE operating hours. All requests made during Business
Hours will be completed within 2 Business Hours. Once de-activated, SIM cards
may be re-activated within sixty days at no charge. If said SIM is
reactivated after the 60-day timeframe a reactivation fee of $7 is
applicable.
Interconnection
and Interface
Customer
will establish and use suitable Computer Systems and related processes and
procedures to interface with KORE computer systems, which are satisfactory
in
both form and function to KORE at its own cost and expense.
If
Customer does not comply with the foregoing requirements, and such
non-compliance threatens to interfere with the operation of the KORE System,
including computer systems, KORE will (where practical) notify the Customer
in
writing that temporary discontinuance of access by the Customer to the System
may be required. When prior notice is not practical, KORE may
temporarily discontinue such access, without notifying the
Customer. In cases of such temporary discontinuance, the Customer
will be notified verbally and in writing as soon as possible after the temporary
discontinuance and afforded the opportunity to correct the
situation. The System may be interconnected with other communications
networks. The use of such communications networks by the Customer as
part of its access to the System is subject to the applicable terms and
conditions of KORE’s contractual arrangements for such interconnection to the
System(s).
Coverage
The
coverage provided by KORE is defined by the service areas of its Network
Operator partners in North America and International markets and can be
determined by going to xxxx://xxx.Xxxxxxxxxxxxxx.xxx
The
Services provided internationally to the Customer are made available through
Roaming agreements with other Network Operators. KORE provides
support through more than 270 roaming partners, which may change without
prior
notice.
18
Commercial
Pricing Information and Explanatory Guidelines
Subscriber
Activation Fees (One-Time)
These
fees include the cost of a 32K/64K SIM card, OTA support and provisioning.
Customer will attempt to activate within 6 months after being received by
the
Customer with the understanding that the SIM will remain useful after the
6
month period and KORE will provide every effort to ensure this capability.
However no liability is accepted by KORE in the event that SIM units that
have
not been activated within this period do not register to the KORE network
upon
attempted activation.
Should
Customer suspend a Subscriber, System Access Fees continue to be
payable.
System
Access Fees (SAF) (Monthly Recurring)
This
fee
will be charged monthly based on the number of active Subscribers for the month
for which they are invoiced. This will be calculated based on the monthly
average quantity of active Telephone Numbers. The Access Fee will not
be charged to non-active numbers. Subscribers added during any month
will be pro-rated and charged at month end for the pro-rated
portion.
Airtime
Fees (GPRS Services)
For
clarity, a description of counting method is shown. The Customer is charged
for
a) total pooled usage for each market (i.e., the US is considered one market)
in
which they operate, and there is no requirement for this to be associated
with
individual, identifiable XXXx in use or b) Per SIM usage bundle, where The
Customer has purchased a fixed amount of pre-subscribed usage on a per SIM
basis, and any usage above the pre-subscribed amount is charged as an usage
overage charge as per Attachment D. This provides great flexibility
in service design and implementation. One (1) megabyte is equal to 1,024
Kilobytes. Data transmission will be calculated on a per byte basis and is
subject to rounding as follows:
1)
For KORE Canada SIM Services:
By
session, defined as a single PDP Context in any 24 hour period ending at
2 AM
PST, details of which vary by market and are described in the Pricing Schedule.
Note that a device may however create multiple sessions in any 24 hour billing
period dependent on applications design, coverage and other factors. Sessions
will be rounded as follows:
|
|
i)
|
For
Domestic Service: For sessions less than 4Kb total usage, rounded
up to
4Kb, thereafter rounded up to next
1Kb
|
|
|
ii)
|
For
roaming use while traveling in USA: Rounded up to next 1Kb
at all
times
|
|
|
iii)
|
For
roaming use Internationally: Rounded up to next 10Kb at all
times
|
2)
For KORE USA SIM Services:
By
day,
defined as any 24 hour period ending at 2 AM PST. Sessions for individual
XXXx
will be rounded up to next 1Kb in each 24 hour billing period. This rounding
will apply to Domestic and Roaming (Canada and International) service
delivery.
For
invoicing purposes, total bytes consumed by all Subscribers in the month
for
each Customer by market will be rounded up to the nearest one (1)
megabyte.
19
3)
For m2mSecureLink Services:
By
session, defined as a single PDP Context maintained for a period of up to
one
hour. Note that a device may create multiple sessions in any 24 hour
billing period dependent on applications design, coverage, network timeouts,
and
other factors. Sessions for individual XXXx will be rounded up to
next 10Kb. This rounding will apply to Domestic and Roaming (Canada and
International) service delivery.
Airtime
Fees (SMS Services)
The
Customer is charged for a) total pooled SMS usage for each market (i.e.,
the US
is considered one market) in which they operate, and there is no requirement
for
this to be associated with individual, identifiable XXXx in use or b) Per
SIM on
a usage bundle basis, where The Customer has purchased a fixed amount of
pre-subscribed usage on a per SIM basis, and any usage above the pre-subscribed
amount is charged as an usage overage charge, as defined by Attachment
D..
Messages
will be charged for all Mobile Originate and Mobile Terminate messages that
are
passed through the KORE SMSC Gateway. In the event of dispute, logs from
the
KORE SMSC will be deemed accurate.
KORE
Technical Support & Operations
System
Operations and Support
Customer
will be responsible for all of activities in connection with its Subscriber
inquiries (‘1st line support’) regarding issues with devices, applications,
network, roaming and coverage.
System
Surveillance
KORE
will
provide surveillance of the System on a 24 hour per day, 7-day a week basis
from
its Network Control Center (NCC). This service includes continuous watch
on all
network element generated alarms and service alarms, Level 1 fault
diagnosis/restoration and appropriate technical dispatch to correct
faults. KORE does not monitor individual subscriber devices and their
associated activity.
Trouble
Reporting and Status Update Methods
The
point
of contact for Customer to report any fault or problems on services provided
will be via KORE Technical Support Group. All troubles reported will
be logged into the trouble ticket system, and a trouble ticket number given
for
future reference. Routine status updates will be provided. All
Trouble Tickets must be registered with xxxxxxx@Xxxxxxxxxxxxxx.xxx and tickets
may be viewed using the KORE PRISM Partner web service portal.
Planned
Service-Affecting Work
KORE
will
be entitled at any time to modify, expand, improve, test, maintain or repair
the
System and to suspend providing the access to the System for such
purposes. KORE undertakes to keep such planned interruption at a
minimum and will use commercially reasonable efforts to only interrupt the
access to the System at the regularly scheduled maintenance window, or at
times
which are outside KORE normal Business Hours. KORE may undertake
service impacting maintenance during its regular maintenance window of Wednesday
mornings between 2 am and 5 am EST. This will be done without any
prior customer notification. If the planned outage is done outside of
the regularly scheduled maintenance window, KORE will notify the Customer
at
least two (2) days in advance of the planned interruption and will provide
the
date, time, and anticipated length of such interruption.
20
Un-Planned
Service-Affecting Work
KORE
will
use its reasonable commercial efforts to provide the Customer with immediate
notification of service affecting work it intends to carry out due to un-planned
events. This could be of a ‘restorative’ nature, or as a result of routine
capacity increase or enhancements to the functionality of the System and
the
Services.
Support
Hotline Number
KORE
will
provide the Customer with a Hotline telephone number. This number is for
exclusive use by the Customer. Calls that are received at this number are
treated as priority calls, and are answered as shown in Technical Support
section below.
Service
Performance Reports
Post
Mortems are special investigations undertaken after an incident has been
cleared
or resolved. Its purpose is to establish the cause of an incident and to
prevent
a further occurrence. The investigation will be carried out, and findings
will
be reported.
Technical
Support
The
KORE
Technical Support Group acts as the single point of contact for Customer
to
report network problems, receive updates on particular troubles, or answer
any
network questions or operational problems with existing services.
The
KORE
Technical Support Group is available during Business Hours of 9 AM to 6 PM
CST.
Additionally, KORE manages 24/7 Network monitoring and reporting for all
major
network continuity functions. Major network related matters arising
outside of normal Business Hours are handled through a pre-determined escalation
process defined within the service level objectives.
If
the
issue reported to the KORE Technical Support Group over the phone cannot
be
resolved immediately, the Technical Support Group will open a trouble ticket,
and you will be provided a trouble ticked reference number to
Customer.
KORE
can
access individual Subscribers and verify the state of the Network for all
supported services. KORE performs network trace testing in conjunction with
its
customers and network suppliers as needed on individual Subscribers for advanced
fault diagnostics.
Should
technical support be requested and no fault found in the network or service
elements, or that KORE is required to provide service to resolve technical
or
applications deficiencies in the Customers application, then KORE will charge
for provision of these services the rate as outlined in the current pricing
tables.
21
Attachment
B
Application
and Device Acceptance Test Plan
(To
be
provided for each Customer according to Application)
22
Attachment
C
Service
Level Metrics and Escalation Process
KORE
will
endeavor to support the Customer’s wireless services, which apply to the system
elements controlled by KORE. However, given the nature of Customer’s
wireless services, the majority of these services reside on the systems
of
Network Operators that are not controlled by KORE. As such, KORE is only
obligated to use its reasonable commercial efforts to provide a timely
resolution.
Service
Level Metrics
|
Priority
|
Work
Order Type
|
SLM
KORE
USA and Canada
m2mSecureLink
|
|
1
|
Customer
Request Acknowledgement
|
30
Mins
|
|
2
|
Emergency
Deactivation
|
2
Hrs
|
|
3
|
SIM
Activations
|
4
Hrs
|
24
Hrs
|
|
4
|
Feature
Changes
|
4
Hrs
|
24
Hrs
|
|
5
|
Non-Emergency
Deactivation
|
4
Hrs
|
24
Hrs
|
|
6
|
Pre-Activation
(tied to Stock Order)
|
Same
Day (if taken before 3:30 PM)
|
|
7
|
Stock
Orders
|
Same
Day (if taken before 3:30 PM)
|
|
8
|
Account
Setups -
VPN/SMS
|
Thursday
– Request received by Tuesday Prior
|
|
Ticket
Type
|
Expected
Response/Completion
|
|
CDR
Request
|
5
days (US) 1 day (CDN)
|
|
Admin/Billing
|
24
Hrs
|
|
PPI
Request
|
4
Hrs
|
|
Coverage
Request
|
24
Hrs
|
|
SIM
Transfer
|
3
days
|
|
APN
|
Issue
Dependant
|
|
GPRS
|
Issue
Dependant
|
|
SMS
|
Issue
Dependant
|
|
ICSMS
|
Setups
– 1 Week
|
|
Voice
|
Issue
Dependant
|
|
VPN
|
Setups
– 1 Week
|
|
SMPP
|
Setups
– 1 Week - Other - Issue Relating
|
|
FTP
|
Setups
– 1 Week - Other - Issue Dependant
|
Escalations:
In
the
event that the posted SLM’s are not met and escalation is required during
regular business hours, you may contact:
Xxxx
Xxxxxxxx
Manager,
Support Services
Email: xxxxxxxxx@XXXXxxxxxxxxxx.xxx
Phone
000.000.0000
If
you do
not receive an acknowledgement from the Manager, Support Services within
2
hours, you may contact:
Xxxxx
Xxxxxxxxx
Director,
Operations and Support Services
Email:
xxxxxxxxxx@XXXXxxxxxxxxxx.xxx
Direct
000.000.0000
Mobile
000.000.0000
23
Attachment
D
Pricing
and Authorized Market Schedule
Effective
Date: December 1, 2007
MATERIAL
SHOWN WITH AN ASTERISK ON THIS ATTACHMENT D HAS BEEN
OMITTED
PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.
THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SECURITIES
AND EXCHANGE COMMISSION.
Market(s)
Supported under this Agreement: USA Plus Roam
SIM
Type/ICCID Range: 89310xx
Annual
Commitment
Pricing
is based upon Customer’s projected annual level of airtime revenues during the
term of this Agreement.
The
Customer agrees to pay minimum Airtime Services (comprising System Access
Fee
and Airtime only) of $150,000 for each full year of the contract. The annual
commitment shall be assessed, and any shortfall due at the end of each full
Quarter following date of execution, as follows:
Q1: 10% ($
15,000)
Q2: 25% ($
22,500)
Q3: 30% ($
45,000)
Q4: 35% ($
52,500)
Should
an
annual target level of $150,000 not be achieved in each subsequent 12 month
period following the initial 2-year term, the difference between the actual
level of airtime services and the target will be invoiced in full in the
13th
month, and be payable according to contracted payment terms.
Airtime
Rate Levels correspond to target estimated number of Subscribers shown using
the
KORE System as an average in each annual period, based upon projected monthly
Service revenue, and exclude SIM’s and special engineering costs.
Initial
Set-Up Fee:
The
Customer agrees to pay KORE on the Effective Date a fee of
$4,500. This fee is due and payable within 5 days of invoice. This
fee provides for set up services, including:
PRISM
Enhanced Gateway including API
SMPP
Short Code Set-Up
VPN
Set-Up – Client/Server (Site/Site VPN will be substituted for the Client/Server
VPN & is included in the Set-Up Fee)
Itemized
Electronic Usage Reporting
FTP/CDR
Set-Up
FTP/CDR
Reporting/Period
Tech
Support – 4 hours/month
24
Airtime
Volume Discounts:
Volume
discounts based on monthly xxxxxxxx and applied to Monthly Services and usage
(SMS/GPRS) only are provided on the following basis.
Monthly
Billing Discount
Over
$10,000 per
Month $ *
Over
$20,000 per
Month $ *
Over
$35,000 per
Month $ *
Over
$60,000 per
Month $ *
Discount
as earned is applied to the following month’s invoice under all
circumstances. Discounts will not be applied to delinquent
accounts.
Discounts
are not applicable to SIM purchases, special network set-up costs (additional
VPN or SMS Gateway) or monthly special network maintenance fees.
Rate
Schedule/Volume Bands
SIM/Gateway
Services License/Activation (One-Time)
These
fees include the cost of a 64K SIM card, Activation and PRISM Gateway Services
License.
|
Based
on Order Quantity
|
KORE
US
|
|
SIM’s
per order
|
Price
per SIM
|
|
1
–
50,000
|
$ *
|
|
50,001
– 100,000
|
$ *
|
|
100,001
– 250,000
|
$ *
|
System
Access Fee (Monthly Recurring)
|
Number
of Units
|
Monthly
Access Fee/Unit
|
|
1
–
20,000
|
$ *
|
|
20,001
– 60,000
|
$ *
|
|
60,001
– 120,000
|
$ *
|
|
120,001
-- 250,000
|
$ *
|
|
250,001+
|
$ *
|
GPRS
Pooled Use Services
|
Domestic
US
|
$ *
per MB
|
|
NA
Roam Canada
|
$ *
per MB
|
|
International
|
$ *
per MB
|
|
|
*
|
INFORMATION
REFLECTED BY AN ASTERISK HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
|
25
SMS
Services
USA
-
MO /MT $
0.058 per message
USA
- MT:
Monthly plans per SIM (pooled across all XXXx on account – requires 2nd one-way
SMPP bind into KORE, with separate short code)
|
30
messages per month
|
(360/year)
|
$ *
|
|
50
messages per month
|
(600/year)
|
$ *
|
|
100
messages per month
|
(1200/year)
|
$ *
|
|
200
messages per month
|
(2400/year)
|
$ *
|
|
Canada
– NA Roam MO
|
$ *
per message
|
|
Canada
– NA Roam MT
|
$ *
per message
|
|
International
– MO
|
$ *
per message
|
|
International
– MT
|
$ *
per message
|
|
Inter-Carrier
(non KORE) MO/MT North America
|
$ *
per message
|
|
Inter-Carrier
(non KORE) MO/MT International
|
$ *
per message
|
Other
Services (if not included in initial TSA Set-Up)
|
PRISM
Enhanced Gateway including API
|
$
2,000.00
|
|
SMPP
Short Code Set-Up
|
$
750.00
|
|
SMPP
Code Lease/Month
|
$
50.00
|
|
Virtual
Number Set Up
|
$
750.00
|
|
Virtual
Number Lease/Month
|
$
50.00
|
|
FTP/CDR
Set-Up
|
$
2,000.00
|
|
FTP/CDR
Reporting/Period
|
$
200.00
|
|
VPN
Set-Up Client/Server
|
$
1,000.00
|
|
VPN
Set-UP Site to Site
|
$
2,500.00
|
|
VPN
Monthly Maintenance
|
$
50.00
|
|
Turnkey
On-Site VPN Implementation
|
Quotable
|
|
Service
Reconnection Fee (following Default)
|
$
250.00
|
|
VPN/Service
Change Request Fee
|
$
100.00
|
|
________________________________
Acknowledged
and
Agreed
|
|
|
*
|
INFORMATION
REFLECTED BY AN ASTERISK HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
|
26
Market
– KORE Canada Full Footprint (available Q1, 2008)
Rate
Schedule/Volume Bands (all prices quoted in U.S.
Dollars)
SIM/Gateway
Services License/Activation (One-Time)
These
fees include the cost of a 64K SIM card, Activation and PRISM Gateway Services
License.
|
Based
on Order Quantity
|
KORE
Canada
|
|
SIM’s
per order
|
Price
per SIM
|
|
1
–
50,000
|
$ *
|
|
50,001
– 100,000
|
$ *
|
|
100,001
– 250,000
|
$ *
|
System
Access Fee (Monthly Recurring)
|
Number
of Units
|
Monthly
Access Fee/Unit
|
|
1
–
1,000
|
$ *
|
|
1,001
– 3,500
|
$ *
|
|
3,501
– 8,000
|
$ *
|
|
8,001
-- 20,000
|
$ *
|
|
20,001
– 40,000
|
$ *
|
|
40,000+
|
$ *
|
Note
– System Access Fee pricing is based on cumulative units on network for US
&
Canada markets
GPRS
Pooled Use Services
|
Domestic
Canada
|
$ *
per MB
|
|
NA
Roaming USA
|
$ *
per MB
|
|
International
Roaming
|
$ *
per MB
|
SMS
Services
Canada
–
MO/MT: Monthly plans per SIM (pooled across all XXXx on account – requires
standard SMPP bind & short code)
|
30
messages per month
|
(360/year)
|
$ *
|
|
50
messages per month
|
(600/year)
|
$ *
|
|
100
messages per month
|
(1200/year)
|
$ *
|
|
200
messages per month
|
(2400/year)
|
$ *
|
|
Canada
– MO/MT overage
|
$ *
per message
|
|
US
– NA Roam MO/MT
|
$ *
per message
|
|
International
– MO
|
$ *
per message
|
|
International
– MT
|
$ *
per message
|
|
Inter-Carrier
(non KORE) MO North America
|
$ *
per message
|
|
Inter-Carrier
(non KORE) MT North America
|
$ *
per message
|
|
Inter-Carrier
(non KORE) MO/MT International
|
$ *
per message
|
|
________________________________
Acknowledged
and
Agreed
|
|
|
*
|
INFORMATION
REFLECTED BY AN ASTERISK HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
|
