CONFIDENTIAL TREATMENT REQUESTED BY U.S. WIRELESS DATA, INC. FOR CERTAIN
PORTIONS OF EXHIBIT C CONTAINED IN THIS AGREEMENT
CDPD VALUE ADDED RESELLER AGREEMENT
This CDPD Value Added Reseller Agreement (this "Agreement"), dated as of
April 30, 1997, is made between AT&T Wireless Data, Inc., a Delaware corporation
doing business as AT&T Wireless Services, for cellular digital packet data
("CDPD") communications service (defined below) provided by AT&T Wireless Data,
Inc., d/b/a AT&T Wireless Services and its Affiliates, collectively, ("AT&T"),
and U.S. Wireless Data, Inc., a corporation organized under the laws of the
State of Colorado, for itself ("Customer").
RECITALS
A. Customer would like to receive Service from AT&T, in connection with
Customer's provision of certain value-added communications services to its End
Users.
B. AT&T wishes to provide Service to Customer based upon the
value-added communications services provided by Customer to its End Users, in
accordance with the terms and conditions of this Agreement.
AGREEMENTS
In consideration of the mutual promises contained in this Agreement,
the Parties hereby agree as follows:
Section 1. Definitions
1.1 Affiliate means, with respect to any entity, any other entity that
directly Controls, is Controlled by or is under common Control with the
first entity.
1.2 Application means the combination of the Service and Customer's
value-added communications services provided to its End Users. The Appli-
cation is more specifically described in Exhibit A hereto.
1.3 Control (and all conjugations thereof) means, with respect to any
entity, the direct or indirect possession of the power to direct the
management and policies of such entity.
1.4 End User means the individuals or entities obtaining access to
Service from Customer.
1.5 Number means, for each End User, the AT&T network and service
identifier numbers and various other network, equipment and service numbers
assigned to Customer for that End User to obtain access to Service.
1.6 Service means the CDPD communication service and associated
support services provided to Customer by AT&T.
1.7 Service Area means those portions of AT&T's CDPD operating areas
as identified by AT&T from time to time (the "Service Area") and as set
forth in Exhibit B hereto, as amended from time to time.
Section 2. The Service
2.1 Provision
2.1.1 Service is available to each of Customer's users or units within
AT&T's Service Area as long as Customer's CDPD transmitting and receiving
equipment (the "Equipment") is turned on, programmed with AT&T network and
service identifier numbers (collectively, the "Numbers").
2.1.2 Service provided pursuant to this Agreement will be provided
only upon the request of Customer's authorized representatives, and not by
End Users, and only in connection with the Application.
2.1.3 Customer is not authorized under this Agreement to use the
Service independent of the Application or in conjunction with any other
Application unless such Application is described and attached in Exhibit A
hereto.
2.2 Support Services. AT&T will provide to Customer, and not directly to
End Users, network monitoring, technical assistance and trouble-shooting support
of the Service through AT&T's technical assistance center (the "ATAC"), The ATAC
will be staffed and available to Customer's authorized representatives
twenty-four (24) hours per day, seven (7) days per week to perform these
functions and to address Customer's inquiries. Customer will provide AT&T with
access to contacts and dispatch information to facilitate appropriate response
to Service interruptions.
2.3 Numbers. Customer shall be issued an initial amount of Numbers as set
forth in the Service Plan attached as Exhibit C hereto. Customer may order
additional Numbers by completing a Service Request Form. Additional Numbers will
be issued to Customer provided Customer is not in default hereof, and subject to
any requirements for a security deposit. AT&T may change any of Customer's
Numbers from time to time, by giving Customer written notice thereof. AT&T will
use its best efforts to minimize such changes. Customer will inform its End
Users of the provisions of this Section and agrees that neither it nor its End
Users will acquire any proprietary right in any specific Number provided by
AT&T.
2.4 Use.
2.4.1 Customer will use' the Service only for lawful business purposes
and only in connection with the Application, and may resell the Service
only in connection with the Application and as provided by this Agreement.
2.4.2 AT&T authorizes Customer to provide any or all of the Service to
End Users in connection with End Users' use of the Application,
2.4.3 AT&T is obligated only to Customer, with which it is in privity
of contract, and not to End Users, with whom AT&T is not in privity, End
Users are not to be deemed third-party beneficiaries of this Agreement.
2.4.4 Customer is solely responsible for all risks and expenses
incurred with its actions or omissions in the provision of the Service or
the provision of the Application to End Users, including but not limited to
payment to AT&T for all charges for Service used by Customer or its End
Users or third Parties using a Number assigned to Customer. In connection
with such activities, Customer will act in all respects for its own account
and will be responsible for such things as credit verification, deposits,
billing, collection, bad debts and any unauthorized use of the Service by
End Users or any third Party using a Number assigned to Customer.
2.4.5 Customer will disclose to End Users the provisions set forth in
Exhibit D.
2.4.6 Customer is responsible for all End User support regarding all
aspects of End Users' use of the Service (whether arising in connection
with hardware, software or Service), including but not limited to issues
relating to modems, protocol stacks, software configuration and setup,
usability issues, Service activation, Service coverage, billing, and any
and all other aspects of technical services and customer care. This
includes, but is not limited to, Customer taking the End Users' calls and
using reasonable commercial efforts to remedy any Customer or End
User-identified problem without AT&T's participation. Customer will report
a problem to AT&T only upon reasonable verification that the problem is due
to reasons other than misuse, malfunction or the failure of the Customer
Equipment to meet the technical standards for compatibility with the
Service, or failure of the End User to understand how to use the Service.
2.4.7 The Service will not be used to transmit any communication where
the message, or its transmission or distribution would involve any local
court order or regulation or would likely be offensive to the recipient or
recipients thereof.
2.5 Continuing Right. AT&T will have the continuing right to market and
sell, the service and any other communications services to any third Parties,
including but not limited to current, future and potential End Users of
Customer.
2.6 Procedures. Customer will comply with AT&T's procedures for obtaining
Numbers and for activating Service with respect to any End User. AT&T may from
time to time modify these procedures by giving Customer written notice of such
modification.
2.7 Service Area. The Service is available only within the Service Area and
is subject to (a) transmission limitations caused by atmospheric, topographical
or other conditions affecting transmission, (b) equipment modifications, repairs
and other similar activities necessary for the proper or improved operation of
the Service, and (c) equipment failures beyond AT&T's reasonable Control. AT&T
will not be responsible for any interruption or inability to use the Service
that results from equipment or systems used in connection with the Service or
the Application. AT&T may amend Exhibit B to add or delete any portion of the
Service Area from time to time by giving written notice to Customer.
2.8 Interruptions and Field Trials. The Service may be temporarily refused,
limited, interrupted or curtailed due to governmental regulations or orders,
system capacity limitations or equipment maintenance, repair, modifications,
upgrades or relocation. AT&T will attempt to notify Customer of scheduled and
unscheduled network outages that are expected to last more than four (4) hours
and that may affect the Service. Customer will cooperate, at AT&T's expense, in
conducting any field tests and trials that AT&T or any Service provider
reasonably determines are necessary or desirable to ensure the performance and
reliability of the Service.
Section 3. Interconnection
Customer will be required to obtain and pay for any interconnection
services required to connect Customer to AT&T's CDPD network to be used by End
Users. In the event that individual connectivity to End Users is required,
Customer will follow AT&T policies and procedures for such connections.
Section 4. Customer Equipment
Customer will be responsible for the acquisition, programming,
installation, maintenance and repair of all equipment (other than equipment
comprising portions of AT&T's CDPD network) necessary to enable Customer and
its End Users to receive the Service ("Customer Equipment"). Customer will
ensure that all Customer Equipment is technically and operationally compatible
with the Service and meets all applicable federal and state laws, rules and
regulations.
Section 5. Rates
5.1 Customer will pay AT&T for Service provided to Customer and its
End Users in accordance with the Service Plan. Unless the Service Plan
provides otherwise, AT&T shall not increase the rates contained in the
Service Plan within six months from the effective date of this Agreement,
Thereafter, however, AT&T may increase the rates contained in the Service
Plan from time to time on thirty days (30) written notice to Customer;
provided, however, if such increase is unacceptable to Customer, Customer
may terminate this Agreement by providing AT&T with written notice at least
fifteen (15) days in advance of such termination. Notwithstanding the
foregoing, if AT&T rescinds its notice of rate increase within such fifteen
days, this Agreement will not terminate, but will remain in full force and
effect. AT&T may decrease the rates contained in the Service Plan from time
to time upon written notice to Customer, effective, on the date specified
on such notice. To the extent AT&T arranges for Customer to receive Service
from non-AT&T Service providers. Customer will pay AT&T for Service at
Company's regular retail rate for such Service.
5.2 Customer may obtain any rate that is available to a similarly
situated reseller of Company. Customer may at any time notify Company that
it chooses to Obtain Service under a different Rate Sheet, provided that
Company may, upon receipt of notice of Customer's election, either revise
Exhibit C to reflect such election or terminate this Agreement and offer
Customer a new agreement.
Section 6. Invoices, Payments, Taxes and Security Deposits
6.1 Invoices. AT&T will provide Customer written invoices on a monthly
basis.
6.2 Payment. Customer will pay each invoice within thirty (30) days
following its receipt thereof Any payment not received by the due date will
accrue interest at the rate of one and one-half percent (1.5%) per month or
the maximum lawful rate. Additional fees will be assessed for any check
returned for insufficient funds,
6.3. Disputed Charges. If the amount of any invoice is disputed,
Customer will pay the entire amount of the invoice by the due date and will
include with such payment a detailed statement sufficient to allow AT&T to
ascertain the disputed amount and the reasons for the dispute. Any amount
not disputed within ninety (90) days of an invoice due date may not
thereafter be disputed. Customer and AT&T will use good faith efforts to
resolve any dispute within sixty (60) days of receipt of such statement.
6.4 Taxes. Customer will pay all applicable federal, state and local
sales, use, public utilities, gross receipts or other taxes or fees imposed
on AT&T as a result of this Agreement (other than taxes imposed on the net
income of AT&T). Customer will provide certificates of resale required for
the states in which it will resell service, as indicated on Exhibit C.
Customer will reimburse AT&T for any such taxes or fees paid by AT&T on
Customer's behalf.
6.5. Security Deposits. AT&T may from time to time require Customer to
provide it with a cash deposit, irrevocable letter of credit, or other
security acceptable to AT&T based upon AT&T's assessment of Customer's
creditworthiness.
Section 7. Term and Termination
7.1 Term. The initial ten of this Agreement will begin on the date
hereof and, unless earlier terminated in accordance with this Section 7,
will continue for a three (3) year term. This Agreement will automatically
renew for successive one-year renewal terms unless either Party, at least
ninety (90) days prior to the end of the then-current term, notifies the
other Party in writing of its intent to terminate this Agreement.
7.2 Termination
7.2.1 If either Party breaches a material term of this Agreement,
and such Party fails to cure the breach within thirty (30) days
following its receipt of written notice from the non-breaching Party
(or ten days in the event of non-payment of any amounts due
hereunder), then the non-breaching Party, in addition to any other
remedies it may have at law or in equity, may terminate this Agreement
upon written notice to the breaching Party.
7.2.2 This Agreement will automatically terminate in the event of
either Party's dissolution, insolvency, assignment for the benefit of
creditors or filing for relief under the provisions of the bankruptcy
laws or similar creditor protection laws.
7.2.3 AT&T may terminate this Agreement immediately and without
penalty upon written notice to Customer if the Federal Communications
Commission or any other regulatory agency or court promulgates any
rule, regulation, judgment or order that (a) prohibits or
substantially impedes (in effect or Application) AT&T from fulfilling
its obligations hereunder, (b) prohibits or substantially impedes
non-AT&T Service providers from providing Service, or (c) adversely
affects AT&T's ability to conduct business upon terms and conditions
acceptable to it. AT&T will notify Customer promptly following AT&T's
determination that an event permitting termination under this Section
has occurred.
7.2.4 If Customer shall at any time fail to meet the Service Plan
requirements set forth in Exhibit C, Company may provide Customer with
ninety (90) days written notice either 1) that Customer is no longer
eligible to receive Service under this Agreement, or 2) that Company
will modify the Service Plan in accordance with Customer's actual
usage. If Customer is unable, during the sixty (60) day period after
Company's notice is sent, to satisfy the eligibility criteria, Company
and Customer will renegotiate the Service Plan Requirements. If the
parties fail to reach a mutually acceptable agreement regarding the
Service Plan within the following thirty (30) day period, Company may
either, immediately or upon notice to Customer, 1) modify the Service
Plan, or 2) terminate this Agreement without further notice, in its
sole discretion.
7.3 Survival. Sections 8, 9, 10, 11, 12, 16 and 17 (together with all
other provisions of this Agreement that may reasonably be interpreted or
construed as surviving termination) will survive the termination of this
Agreement.
7.4 Payment upon Termination. Upon termination of this Agreement for
any reason, all amounts owing to AT&T hereunder will become due and
payable.
Section 8. Force Majeure
Neither Party will be liable for any loss, damage, cost, delay or
failure to perform resulting from causes beyond its reasonable Control
including, but not limited to, acts of God, fires, floods, earthquakes,
strikes, insurrections, riots, lightening or storms, or delays of suppliers or
subcontractors for the same causes.
Section 9. Indemnification
9.1 MUTUAL INDEMNITY. EACH PARTY WILL DEFEND, INDEMNIFY AND HOLD THE
OTHER, THE OTHER'S SUBSIDIARIES AND AFFILIATES (AND THEIR RESPECTIVE
OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES AND AGENTS) AND ANY
UNDERLYING CARRIER ENABLING THE PROVISION OF SERVICE HARMLESS AGAINST ANY
DAMAGES, LOSSES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' AND EXPERT
WITNESS' FEES AND DISBURSEMENTS, WHETHER AT TRIAL OR ON ANY APPEAL) ARISING
OUT OF OR RELATING TO ANY CLAIMS, ACTIONS OR OTHER PROCEEDINGS THAT (A) ARE
BROUGHT BY OR ON BEHALF OF ANY THIRD PARTY, AND (B) RESULT FROM THE
INDEMNIFYING PARTY'S BREACH, FAILURE TO PERFORM OR OTHER MISCONDUCT IN
CONNECTION WITH ITS DUTIES, OR THE EXERCISE OF ITS RIGHTS UNDER THIS
AGREEMENT.
9.2 ADDITIONAL INDEMNITY. CUSTOMER FURTHER AGREES TO DEFEND, INDEMNIFY
AND HOLD AT&T, ITS SUBSIDIARIES AND AFFILIATES, THEIR RESPECTIVE OWNERS,
DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES AND AGENTS AND ANY
UNDERLYING CARRIER ENABLING THE PROVISION OF SERVICE (COLLECTIVELY, AS USED
IN THIS SUBPARAGRAPH, "AT&T") HARMLESS AGAINST ANY DAMAGES, LOSSES AND
EXPENSES (INCLUDING REASONABLE ATTORNEYS' AND EXPERT WITNESS' FEES AND
DISBURSEMENTS, WHETHER AT TRIAL OR ON ANY APPEAL) ARISING OUT OF OR
RELATING TO ANY CLAIMS, ACTIONS OR OTHER PROCEEDINGS THAT ARE BROUGHT BY OR
ON BEHALF OF END USERS; PROVIDED THAT CUSTOMER'S OBLIGATIONS TO DEFEND,
INDEMNIFY AND HOLD AT&T HARMLESS WILL NOT APPLY TO THE EXTENT THE CLAIM,
ACTION OR PROCEEDING RESULTS FROM AT&T's GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
Section 10. No Warranties
AT&T SUPPLIES A SERVICE, AND NOT GOODS. AT&T MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE OR TIE-IN PERFORMANCE OF
ANY OBLIGATIONS HEREUNDER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES
ARE EXPRESSLY EXCLUDED. AT&T IS NOT THE MANUFACTURER OF ANY CUSTOMER
EQUIPMENT AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT
THERETO. AT&T PROVIDES ACCESS TO INFORMATION PROVIDED BY OTHER SOURCES,
HOWEVER AT&T ACCEPTS NO LIABILITY FOR AND MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, WITH RESPECT TO THE CONTENT THEREOF.
Section 11. Limitation of Liability
11.1 NO CONSEQUENTIAL DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE
OTHER (OR ITS END USERS, CUSTOMERS OR ANY THIRD PARTY) FOR ANY INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF SUCH PARTY'S FAILURE TO
PERFORM UNDER THIS AGREEMENT. NOTHING IN THIS SECTION 11.1 WILL LIMIT A
PARTY'S OBLIGATION TO FULLY INDEMNIFY THE OTHER UNDER SECTION 9 FOR ACTIONS
BROUGHT BY THE INDEMNIFYING PARTY'S CUSTOMERS, END USERS OR BY ANY
THIRD-PARTY, EVEN IF SUCH ACTIONS INCLUDE CLAIMS FOR INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES.
11.2 LIMITATION OF ACTIONS. EXCEPT FOR ACTIONS ARISING IN CONNECTION
WITH SECTION 9, NEITHER PARTY MAY BRING AN A LEGAL ACTION WITH RESPECT TO
THIS AGREEMENT MORE THAN TWENTY-FOUR (24) MONTHS AFTER THE CAUSE OF ACTION
ACCRUES.
11.3 LIABILITY CAP. EXCEPT FOR LIABILITIES ARISING UNDER SECTION 9,
THE AGGREGATE LIABILITY OF AT&T TO CUSTOMER FOR CLAIMS RELATING TO THIS
AGREEMENT, WHETHER FOR BREACH OR IN TORT, WILL NOT EXCEED THE AMOUNT PAID
BY CUSTOMER TO AT&T IN THE TWO MONTH PERIOD PROCEEDING THE DATE THE CLAIM
AROSE.
11.4 PARTY. FOR THE PURPOSES OF THIS SECTION I 1, "PARTY" MEANS THE
PARTY, ITS SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE OWNERS
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS AND
SUPPLIERS.
11.5 SECURITY. ALTHOUGH THE SERVICE USES AN ENCRYPTED TECHNOLOGY, AND
THE LAW GENERALLY PROHIBITS THIRD PARTIES FROM MONITORING CELLULAR
TRANSMISSIONS, AT&T CANNOT GUARANTY THE SECURITY OF DATA TRANSMISSIONS.
AT&T SHALL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING IN ANY WAY TO
USE OF THE SERVICE OR CUSTOMER'S OR ITS END USERS DATA TRANSMISSIONS.
Section 12. Confidentiality
12.1 Confidential Information. As used in this Agreement,
"Confidential Information" means any information of either AT&T or Customer
that is not generally known to the public, whether of a technical, business
or other nature (including, but not necessarily limited to, trade secrets,
know-how and information relating to the technology, customers, business
plans, promotional and marketing activities, finances and other business
affairs of such Party). AT&T's Confidential Information includes, among
other things, the rates, terms and conditions relating to AT&T's provision
of Service to Customer.
12.2 Use and Disclosure. In the performance of or otherwise in
connection with this Agreement, any Party (the "Receiving Party") may
receive certain Confidential Information of the other Party (the
"Disclosing Party"). The Receiving Party, except as expressly provided in
this Agreement, will not disclose such Confidential Information to anyone
without the Disclosing Party's prior written consent. The Receiving Party
will not use, or permit others to use, Confidential Information for any
purpose other than the purpose for which it was disclosed. The Receiving
Party will take all reasonable measures to avoid disclosure, dissemination
or unauthorized use of Confidential information, including, at a minimum,
those measures it takes to protect its own confidential information of a
similar nature.
12.3 Exceptions. The provisions of Section 12.2 will not 'apply to any
information that (a) is or becomes publicly available without breach of
this Agreement, (b) can be shown by documentation to have been known to the
Receiving Party at the time of its receipt from the Disclosing Party, (c)
is rightfully received from a third Party who did not acquire or disclose
such information by a wrongful or tortuous act, or (d) can be shown by
documentation to have been independently developed by the Receiving Party
without reference to any Confidential Information.
12.4 Disclosure to Governmental Entities. If the Receiving Party
becomes legally obligated to disclose Confidential Information to any
governmental entity with jurisdiction over it, the Receiving Party will
give the Disclosing Party prompt written notice sufficient to allow the
Disclosing Party to seek a protective order or other appropriate remedy.
The Receiving Party will disclose only such information as is required by
the governmental entity and will use its reasonable best efforts to obtain
confidential treatment for any Confidential Information that is so
disclosed.
12.5 Ownership; Return. All Confidential Information will remain the
exclusive property of the Disclosing Party, and the Receiving Party will
have no rights, by license or otherwise, to use the Confidential
Information except as expressly provided herein. The Receiving Party
promptly will return or destroy all tangible material embodying
Confidential Information (in any form and including, without limitation,
all summaries, copies and excerpts of Confidential Information) upon the
earlier of (a) the completion or termination of the dealings between the
Disclosing Party and the Receiving Party, and (b) the Disclosing Party's
written request,
Section 13. Notices
All notices and other communications relating to this Agreement Will be
made in writing and will be deemed to have been duly delivered, effective upon
receipt, if sent to the address set forth below each Party's signature.
Section 14. Assignment
Except as provided in this Section 14, neither Party may assign or
transfer this Agreement, or its rights or obligations hereunder, without the
prior written consent of the other Party. Either Party may assign this
Agreement, without the other's consent, to (a) any Affiliate of the assignor, or
(b) any person or entity that acquires the assignor or substantially all of the
assignor's business through any merger, consolidation or stock or asset
purchase; provided that the assignee agrees in writing to be bound by the
provisions of this Agreement. In addition, AT&T may assign certain of its rights
and obligations under this Agreement without Customer's consent.
Section 15. No Agency
AT&T and Customer are independent contracting Parties. This Agreement
does not create any partnership, joint venture or agency relationship between
the Parties.
Section 16. Marks
Customer recognizes the right, title and interest of AT&T, the CDPD
Systems and their respective Affiliates in and to all service marks, trademarks
and trade names used by any of them in connection with the Service (the
"Marks"). Customer will not gain any rights to the Marks by virtue of this
Agreement and will not use any Marks without Company's prior written consent.
Section 17. General
17.1 State law/venue. This Agreement will be governed by the laws of
the State of Washington, without reference to its choice of law rules. Any
proceeding to enforce any rights or obligations hereunder shall be brought
in King County, Washington.
17.2 Attorneys' fees. In the event an action is commenced by either
Party to enforce the terms of this Agreement, the substantially prevailing
Party in such action shall be entitled to its reasonable costs and
attorneys' and expert witness' fees incurred therein and on any appeal
thereof.
17.3 Entire agreement. This Agreement, together with its attached
Exhibits, sets forth the entire agreement between the Parties concerning
the subject matter hereof Any amendment or modification to this Agreement
will be effective only if made in writing and signed by both Parties.
Provided, however, this Agreement shall be deemed automatically amended to
the extent inconsistent with any federal, state or local law, regulation,
court order or tariff required to be filed by AT&T.
17.4 Waiver. The waiver of any provision or default of this Agreement
will not constitute a waiver of any other provision or default. If any
provision of this Agreement is deemed to be unenforceable, the remaining
provisions will remain in full force and effect.
17.5 Compliance with laws. AT&T and Customer shall at all times comply
in all material respects with all laws, rules and regulations applicable to
the performance of this Agreement.
The Parties have executed this Agreement on the date first above written.
U.S. Wireless Data, Inc. AT&T Wireless Data, Inc.
By: /s/ Xxx Xxxxxxxxx By: /s/ C-------- S------------
--------------------- -------------------------------
Title: President & CEO Title: Director of Distribution
---------------------- -------------------------------
Address: 0000 Xxxxxxx Xxxxxx Address: 00000 X.X. Xxxxxx Xx.
Xxxx Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxx Attn:
--------------- --------------------------
(With a copy to general counsel)
EXHIBIT A
Application
EXHIBIT B
Service Area
Customer is authorized to provide the Service in the following MSAs.
Arizona Phoenix*, Tucson*
California Fresno, Sacramento, San Diego*, San Francisco*,
San Xxxx*, Bakersfield
Colorado: Denver
Connecticut: Bridgeport*, Hartford*, New Haven*, New London/Norwich*
Delaware Wilmington*, Dover*
Florida Orlando, Tampa/St. Petersburg, West Palm Beach,
Boca Raton, Miami, Ft.Lauderdale,
Lakeland/Winter Havcn*
Illinois* Chicago*
(Xxxx*, Indianapolis*
Kentucky: Louisville*
Maryland Baltimore*, Frederick*
Massachusetts: Boston*, Worcester*
Michigan Detroit*
Minnesota Minneapolis/St. Xxxx
Missouri St-Louis*
Nevada Las Vegas, Reno
New Hampshire! Manchester*
New Jersey* Atlantic City*, Trenton*. Long Branch*. New Brunswick*
Ocean City*, Vineland
New Mexico Albuquerque*, Las Cruces*
New York New York
North Carolina: Charlotte*, Raleigh*
Ohio: Cincinnati*. Columbus*. Dayton*, Clcveland*. Akron*,
Canton*
Oklahoma Oklahoma City, Tulsa
Oregon, Portland
Pennsylvania, Pittsburgh, Allentown*, Philadelphia*
South Carolina: Columbia*, Greenville*,
Tennessee, Memphis*, Nashville*
Texas Xxxxxx, Xxxxxx/Ft. Worth, San Antonio, El Paso*,
Houston*, Galveston*
Utah Salt Lake City
Xxxxxxxx Xxxxxxx News*, Richmond*, Norfolk*
Washington Seattle/Xxxxxxx, Tacoma
Washington D.C.*
* These markets are available for Service through an intercarrier arrangement.
EXHIBIT C
Service Plan
Certificates of Resale provided for the following states: Georgia and California
---------------------------------------------------------
Interconnection: Customer will utilize NOVA's back-end connection to the AT&T
Network in accordance with the letter from Xxxxxxxx Xxxxxxx, NOVA Information
Systems, Inc. dated 4/22/97.
Access Fees: $ ## per month per activated Number. $ ## per month per assigned,
but not activated, Number. On an optional basis, Reseller may request a block of
network addresses prior to activation. AT&T will hold such addresses in a pool
until Reseller requests activation. During any month in which such held Number
is activated, only the $ ## Access Fee plus any applicable usage will be
charged.
Assignment Fee: A one time fee of $ ## will be charged for every new Number.
This reflects AT&T's costs of providing personnel, systems, and completing
paperwork necessary to reserve Numbers to Reseller and to activate them.
Usage Charges*: $ ## per kilobyte*
*Any applicable discount for usage for any given month shall be credited on the
following month's xxxx.
*Usage Volume Discount:
As Customer's average kilobyte usage per user increases, the price per kilobyte
will be reduced according to the following schedule. The first month of usage
for a newly activated user is not included in the calculation***:
Average Monthly Kilobyte Usage Per Number Price per Kilobyte***
201 - 500 Kilobytes $ ##
501 - 1 mg $ ##
1.1 mg - 2 mg $ ##
2.1 mg - 3 mg $ ##
3.1 mg - 4 mg $ ##
4.1 mg and up $ ##
***Note that usage in non-AT&T markets is not subject to the discount schedule
and will be charged at the rate of $ ## per kilobyte, without exception.
Cancellation Fee: ## cancellation fee will be assessed upon deactivation or
deassignment of Numbers.
## CONFIDENTIAL TREATMENT HAS BEEN REQUESTED BY U.S. WIRELESS DATA, INC. FOR
THIS PORTION OF THIS DOCUMENT PURSUANT TO COMMISSION RULE 24b-2. THE OMITTED
MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
Billing Guidelines for Calls.
1. General. AT&T will xxxx Customer on a monthly basis for Service
furnished under this Agreement, including regular monthly Service charges and
usage charges for all data transmissions processed through the Number. Usage
charges include charges on a per kilobyte basis for transmissions that are sent
or received by Equipment programmed with a Number assigned to Customer. Usage
charges may also include charges for additional services offered by AT&T which
Customer may subscribe to at rates determined by AT&T from time to time.
2. Access Charges. Access charges are billed monthly in arrears. Usage
charges are billed monthly in arrears. If AT&T agrees to provide Service
features to Customer, Company reserves the right to charge a reasonable fee for
adding or deleting Service features.
3. Measurement. The measurement of a transmission is in kilobytes.
4. Loss of Registration. Registration may be "lost"(i.e., involuntarily
disconnected) for a variety of reasons, including atmospheric conditions,
topography, weak batteries, system overcapacity, movement outside a service
area, and gaps in coverage within a service area. Loss of registration may
result in retransmissions and additional usage charges.
Minimum Number Requirements:
1. Customer shall maintain, within one year of the date of this Agreement,
a minimum of 1000 active Numbers,
2. Customer shall maintain, within eighteen months of the date of this
Agreement, a minimum of 3000 active Numbers.
3 Customer shall maintain, within three years of the date of this
Agreement, a minimum number of 4,500 active Numbers.
Failure to Meet Minimum Number Requirements. In the event Customer fails to
achieve the minimum Number requirements set forth in this Exhibit C for any
given month, Customer shall pay to AT&T in addition to all other amounts due the
difference between Customer's actual Numbers and the required minimum Numbers
times the minimum monthly usage set forth in Exhibit C for each month in which
Customer fails to achieve such minimum. Continued failure to meet Minimum Number
Requirements shall give rise to AT&T's right to terminate under section 7.2.4
Promotional Tools. AT&T will provide Customer with up to two Numbers, at no
charge, with unlimited usage in AT&T markets, and up to 10 Numbers at a rate of
$30 per month, with unlimited usage in AT&T markets. Usage outside of AT&T
markets and all taxes on usage relating to such Numbers will remain the
responsibility of Customer.
EXHIBIT D
End User Disclosures
1. END USER HAS NO PROPERTY RIGHT IN ANY NUMBER ASSIGNED TO IT.
2. [END USER] UNDERSTANDS THAT [CUSTOMER] IS AN AUTHORIZED RE-SELLER OF AT&T
WIRELESS PACKET DATA SERVICE.
3. [END USER] UNDERSTANDS AND AGREES THAT IT HAS NO CONTRACTUAL RELATIONSHIP
WHATSOEVER WITH AT&T WIRELESS SERVICES AND THAT [END USER] IS NOT A THIRD PARTY
BENEFICIARY OF ANY AGREEMENT BETWEEN [CUSTOMER] AND AT&T WIRELESS SERVICES.
4. []END USER] UNDERSTANDS AND AGREES THAT AT&T WIRELESS SERVICES WILL HAVE NO
LEGAL, EQUITABLE OR OTHER LIABILITY OF ANY KIND TO (END USER]. IN ANY EVENT,
AT&T WIRELESS SERVICES' TOTAL LIABILITY ARISING IN CONNECTION WITH THIS
AGREEMENT (REGARDLESS OF THE FORM OF THE ACTION) FOR ANY CAUSE WHATSOEVER
(INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF THE CDPD SERVICE
PROVIDED HEREUNDER) IS LIMITED TO PAYMENT OF DAMAGES IN AN AMOUNT EQUAL TO THE
PROPORTIONATE FIXED MONTHLY CHARGE PAYABLE FOR SERVICES PROVIDED TO [END USER]
UNDER THIS AGREEMENT FOR THE PERIOD OF SERVICE DURING WHICH SUCH DAMAGES OCCUR.
5. UNLESS CAUSED BY THE NEGLIGENCE OF [CUSTOMER] OR AT&T WIRELESS SERVICES, [END
USER] WILL INDEMNIFY AND HOLD AT&T WIRELESS SERVICES (AND ITS AFFILIATED
COMPANIES AND ANY OF THEIR OFFICERS, EMPLOYEES AND AGENTS) HARMLESS AGAINST ALL
CLAIMS (INCLUDING, WITHOUT LIMITATION, CLAIMS FOR LIBEL, SLANDER, COPYRIGHT OR
PATENT INFRINGEMENT OR ANY PERSONAL INJURY OR DEATH) ARISING DIRECTLY OR
INDIRECTLY FROM (END USER'S)) USE, FAILURE TO USE, OR INABILITY TO USE THE
NUMBERS ASSIGNED TO IT OR THE CDPD SERVICE. THIS INDEMNITY WILL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
6. ALTHOUGH CDPD SERVICE USES AN ENCRYPTED TECHNOLOGY, AND THE LAWS GENERALLY
PROHIBIT THIRD PARTIES FROM MONITORING CELLULAR TRANSMISSIONS, AT&T WIRELESS
SERVICES CANNOT GUARANTY THE SECURITY OF DATA TRANSMISSIONS. NEITHER AT&T
WIRELESS SERVICES NOR ANY UNDERLYING CARRIER SHALL BE LIABLE FOR ANY LACK OF
SECURITY RELATING IN ANY WAY TO USE OF THE SERVICE OR (END USER'S) DATA
TRANSMISSIONS.
7. [END USER] WILL NOT USE THE SERVICE TO TRANSMIT ANY COMMUNICATION WHERE THE
MESSAGE, OMITS TRANSMISSION OR DISTRIBUTION WOULD VIOLATE ANY LAW, COURT ORDER
OR REGULATION, OR WOULD LIKELY BE OFFENSIVE TO THE RECIPIENT OR RECIPIENTS
THEREOF.
8. [END USER] USES THE INFORMATION ACCESSED BY THE CDPD SERVICE AT ITS OWN RISK.
