EXHIBIT 10.4
MASTER AGREEMENT
THIS Master Agreement (the "Agreement") is made as of the 1st day of August,
2001, between ITC DeltaCom Communications, Inc., a corporation organized and
existing under the laws of the state of Alabama with offices at 00 Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter "ITCD"), and Weblink Wireless, Inc.
a corporation organized and existing under the laws of the state of Delaware
with offices at 0000 Xxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (hereinafter
the "Customer"). This Agreement shall become effective August 1, 2001 (the
"Effective Date").
WHEREAS, on May 23, 2001, Customer filed for protection under Chapter 11 of the
United States Bankruptcy Code, in the U.S. Bankruptcy Court, Northern District
of Texas, Dallas Division (Case No. 01-34275-SAP-11) ("Bankruptcy Case"); and
WHEREAS, the effectiveness of this Agreement is subject to the following
conditions precedent: (i) Customer shall have filed with the Bankruptcy Court a
motion to approve WebLink's assumption of the Agreement ("WebLink's Assumption
Motion") that is in form and substance satisfactory to the parties; and (ii) an
order shall have be entered by the Bankruptcy Court authorizing WebLink to enter
into this Agreement and approving WebLink's Assumption Motion ("Assumption
Order"); and
WHEREAS, the Amended and Restated Master Agreement expires by its terms on July
31, 2001 and the parties desire to enter into a new agreement with respect to
ITCD's provision of and Customer's purchase of satellite uplinking, equipment
and software maintenance and network management services as set forth herein and
as approved by the Bankruptcy Court order.
NOW THEREFORE, the Parties, intending to be legally bound, further agree that as
of the Effective Date, the Original Agreement, as amended by the Amendments, is
hereby amended and restated to read in its entirety as follows:
ARTICLE 1. CONTRACT DOCUMENTS
This Agreement is comprised of terms and conditions and related attachments that
define specific equipment and services to be provided. The following attachments
hereto, are made a part hereof and incorporated by reference herein:
Appendix A - Technical Specifications
Appendix B - Price and Rates
Appendix C - Equipment and Services Order
Appendix D - Network Management Service
Appendix E - Equipment Maintenance Service
Appendix F - Software Maintenance Services
Appendix G - Service Level Agreement
ARTICLE 2. DEFINITIONS
For the purpose of this Agreement, including the Appendices attached hereto,
the following words and expressions shall have the following meanings:
(a) "Affiliates" means, with respect to any person, any other persons directly
or indirectly controlling, controlled by or under common control (i.e., the
power to direct affairs by reason of ownership of voting stock, by contract
or otherwise) with such person and any director, officer or employee of
such person.
(b) "Alternate Hub" means the Customer site located at Spacecom Systems, 0000
Xxxx Xxxxxx Xxxx, Xxxxx, Xxxxxxxx 00000, which Customer may use to access
its satellite capacity to run its network for load-sharing with (subject to
the provisions of Article 11) or failure of the Primary Hub.
(c) "Equipment" means equipment purchased by Customer hereunder, as listed in
Appendix B hereto, including VSATs and associated hub hardware and remote
site hardware including embedded Software licensed to Customer pursuant to
this Agreement.
(d) "NECAM" means NEC America, Inc.
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(e) "POCSAG" means Post Office Code Standardization Advisory Group.
(f) "Primary Hub" means ITCD's primary hub location in Atlanta, Georgia,
through which Customer accesses satellite capacity for Customer's network.
(g) "SAC" means Satellite Access Controller.
(h) "Services" means any services to be provided by ITCD hereunder, including
network management services, uplinking services, and Equipment and Software
maintenance services.
(i) "SNMS" means Satellite Network Management System.
(j) "Software" means third party software provided by ITCD's vendors that is
used in connection with the Equipment, or otherwise used by ITCD to provide
Services pursuant to this Agreement.
(k) "VNI" means VSAT Network Infrastructure comprised of equipment, software
and technologies of ITCD used to transmit and receive data to the connected
equipment of Customer as described in Appendix A.
(l) "VSAT" means Very Small Aperture satellite Terminal and includes an outdoor
unit ("ODU"), an indoor unit ("IDU"), an antenna and associated
interfacility ("IFL") cabling.
ARTICLE 3. PRICES
3.1 For all Equipment, Software and Services provided within the continental
United States, prices listed in Appendix B are firm for the Term of this
Agreement.
3.2 The charges specified herein do not include any amounts for occupation,
sales, use, property, privilege, license, excise or similar taxes, fees or
assessments which may be levied by any governmental or regulatory agency on
this Agreement, the Equipment, Software, or Services provided or the
payments made hereunder. Any such taxes or charges shall be paid directly
by Customer to the taxing authority, if legally permitted. Otherwise, if
required to be paid by ITCD, the amount shall be reimbursed to ITCD by the
Customer promptly upon demand therefor. Upon request, the Customer shall
provide ITCD with tax exemption certificates, if applicable, or evidence of
tax payments, if made by Customer.
3.3 The charges specified herein do not include any amounts for freight,
shipping, handling or insurance, all of which shall be invoiced to Customer
and paid pursuant to Article 6 hereof.
ARTICLE 4. ORDERING METHOD
4.1 The Software licenses and Services itemized on Appendix C represent
Customer's current requirements, which may change from time to time to
reflect Customer's needs. The quantity of services and licenses listed in
Appendix C are hereby ordered by Customer in accordance with the terms set
forth herein. Customer may add, relocate, or remove VSATs from its network,
however, Customer agrees to maintain and to pay for the Services described
on Appendix C for a minimum of 2000 activated VSATs ("Minimum Commitment")
during each month of the Term of this Agreement. Customer agrees to pay for
such Equipment, Software and Services in accordance with the terms of this
Agreement. Customer must give written notice to ITCD of its intent to
delete any VSAT no later than thirty (30) days prior to the Customer's
deletion of such VSAT. Software license fees are non-refundable.
4.2 Purchase requests (hereinafter "Order(s)") placed by Customer shall be
issued in writing by an authorized representative of Customer.
4.3 All Orders placed by Customer shall be delivered to the attention of ITCD's
Vice President of Project Services. In any event, all Orders must include
the following information:
(a) Quantity of Equipment, Software or Services being ordered;
(b) Description of Equipment, Software or Services being ordered;
(c) Requested delivery date;
(d) Prices applicable to such Equipment, Software or Services;
(e) Customer's purchase order number;
(f) Shipping destination/location (including address) of sites for which
Services or Equipment will be provided;
(g) Invoice address.
(h) Shall include payment of fifty percent (50%) of total price for all
Equipment and Software ordered.
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4.4 ITCD will review and acknowledge in writing Customer's Order and requested
delivery schedule within ten (10) days from date of receipt thereof. The
actual delivery schedule shall be in accordance with ITCD's acknowledgment
letter. ITCD will use its reasonable best efforts to meet Customer's
delivery schedule, but ITCD cannot warrant or guarantee that any item will
be delivered prior to the Delivery ARO date for such item, unless, as to
Equipment, such date is otherwise agreed to in writing between the parties.
However, without Customer's consent, ITCD will not deliver prior to
Customer's requested delivery schedule nor extend the delivery schedule
beyond the Delivery ARO date set forth in Appendix B. As and when ITCD
receives notice from its vendors that they cannot achieve the ARO date and
offering a new ARO date, ITCD shall promptly notify Customer of the same.
Within three (3) business days after Customer's receipt of such notice,
Customer shall notify ITCD in writing whether Customer accepts or rejects
the new ARO date. In the event that Customer does not receive notice from
ITCD stating that a delivery will be delayed, but a shipment does not
arrive on the ARO date, Customer will be deemed to have rejected a new ARO
date, unless that parties agree otherwise in writing. In the event Customer
rejects the new ARO date, then the Order shall be deemed cancelled and
Customer shall have no further obligation therefor and ITCD shall refund
the deposit paid by Customer. In the event that Customer accepts the new
ARO date or if Customer fails to notify ITCD of its rejection within the
time required, the Order shall deemed revised with such new ARO date and
Customer shall remain liable for payment for the Ordered Equipment and
Software.
4.5 The terms and conditions of this Agreement are hereby deemed incorporated
into and made a part of each Order. Any terms and conditions added to an
Order for Equipment, Software or Services that are in addition to,
inconsistent with or different from the terms and conditions of this
Agreement, shall be void and of no effect unless expressly agreed to by in
writing by both parties.
ARTICLE 5. TERM
The term of this Agreement shall continue in effect until July 31, 2002.
Thereafter, all Services shall cease unless prior to the last day of the Term,
the Parties have executed a new agreement or have executed a written agreement
to extend the terms of this Agreement.
ARTICLE 6. PAYMENT TERMS AND PENALTIES
6.1 During the term of the Agreement, the parties agree that Customer will pay
ITCD for all Network Management Fees, Software Maintenance Fees, Equipment
Maintenance Fees and Software License Fees and all other fees set forth on
Appendix B related to Services and Equipment ordered hereunder as set forth
below:
A) Baseline Charges. Customer agrees to pay ITCD $161,600.00 (the
"Baseline Amount"), for Network Management, Software Maintenance,
Uplinking Fees, Equipment Cabinet Space Fees, and Equipment
Maintenance Fees ("Monthly Recurring Charges"), via electronic wire
transfer on the seventh (7th) business day of each month (the
"Baseline Due Date"). This Baseline Amount represents the estimated
recurring monthly amount due to ITCD for Services to be rendered by
ITCD during the month in which the payment is made. Customer agrees to
pay interest charges of one and one half percent (1.5%) per month on
any Baseline Amount not received by the appropriate Baseline Due Date.
ITCD shall invoice Customer for actual monthly recurring charges. In
the event that in a given month Customer's actual Monthly Recurring
Charges are less than the Baseline Amount, Customer shall have the
right to deduct the overpaid amount from the next Baseline Amount
payment due.
B) Additional Charges. In the event that Customer's actual Monthly
Recurring Charges (or other nonrecurring charges invoiced) exceed the
Baseline Amount (the "Additional Amounts"), then Customer agrees to
pay all undisputed Additional Amounts within thirty (30) days after
receipt of the invoice for the same ("Additional Due Date"). Customer
agrees to pay interest charges of one and one half percent (1.5%) per
month on any Additional Amounts not received by appropriate Additional
Due Date. In the event Customer disputes any Additional Charges,
Customer shall notify ITCD in writing prior to the Additional Due Date
for such amount.
C) Software License Fees. ITCD shall invoice Customer in advance for all
annual software license fees described in Appendix C (the "License
Fees"). Customer agrees to pay all such annual License Fees in
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conjunction with its next regularly scheduled Baseline Due Date
occurring after its receipt of the invoice. Customer agrees to pay
interest charges of one and one half percent (1.5%) per month on any
License Fee not received by appropriate Baseline Due Date.
D) Equipment Purchases. For each Order of Equipment and Software,
Customer shall submit with such Order payment of fifty percent (50%)
of the purchase price for the Equipment and Software. Upon shipment of
the Order, ITCD shall invoice Customer for the remaining fifty percent
(50%) of the purchase price, together with all freight, taxes and
other applicable charges. Customer agrees to pay all such charges
within thirty (30) days after Customer's receipt of the invoice
("Purchase Due Date"). Customer agrees to pay interest charges of one
and one half percent (1.5%) per month on any Equipment or Software
Fee not received by the Purchase Due Date.
E) Payment of Pre-petition Amounts. Pursuant to an Order entered by the
Bankruptcy Court on July 20, 2001, Customer agrees that it will cure
the $232,296.32 ($224,423.19 for NMS and $7,883.13 for Internet)
pre-petition debt it owes to ITCD by paying ITCD such pre-petition
arrearage in six equal payments over a six month period beginning on
the first Baseline Due Date occurring after the Order affirming such
payment is entered by the Court. Each of the six monthly payments will
be made via wire transfer on the same day that Customer remits the
Baseline Amount each month until the pre-petition arrearage is cured.
Customer agrees to pay interest charges of one and one half percent
(1.5%) per month on any such payment not received by the appropriate
Baseline Due Date.
ARTICLE 7. WARRANTY
7.1 With respect to Equipment purchased after the Effective Date, ITCD warrants
the materials manufactured by NECAM to be free from defects in material and
workmanship, and to conform with NECAM's design specifications. ITCD's
liability under this warranty shall terminate within twelve (12) months
from date of shipment. ITCD shall repair or replace any equipment
(hereinafter "Item") which is defective as to workmanship or materials,
provided that: a) written notice of any defect is given to ITCD promptly
upon discovery of the claimed defect, and such notice is given within the
warranty period specified above; b) the defective Item(s) is returned to
ITCD with freight prepaid to be paid by Customer; and c) an inspection of
the returned Item(s) by ITCD indicates that the defect was not caused by
abuse or improper use, maintenance, repair, storage, negligent handling or
alteration by other than ITCD, NECAM or its authorized service center. Also
excluded from the terms of the warranty are Items of characteristically
indeterminate life, such as bulbs, fuses, etc. The decision to repair or
replace shall be at ITCD's sole option. Any Item(s) repaired or replaced by
ITCD pursuant to the terms of this warranty, shall continue to be warranted
for the remainder of the original warranty period or for a period of ninety
(90) days from the date of shipment or the repair or replacement, whichever
occurs last. Item(s) which are replaced hereunder shall automatically
become the property of ITCD and their replacement shall become the property
of Customer. ITCD warrants Equipment not manufactured by NECAM's design
only to the extent of the warranty obtained from the supplier thereof. ITCD
will notify Customer in writing of any Equipment Ordered by Customer which
is not manufactured by NECAM and will specify the length of the warranty on
such Equipment, if any, prior to Customer's purchase of the same. In no
event shall ITCD's aggregate liability under this warranty exceed the cost
of repair or replacement of such defective Item.
7.2 EXCEPT AS PROVIDED IN SECTION 7.1 OR SECTION 18.4, ITCD MAKES NO
REPRESENTATION OR WARRANTY REGARDING THE EQUIPMENT, SOFTWARE OR SERVICES,
EXPRESSED, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, THE
WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE) ALL OF WHICH ARE HEREBY DISCLAIMED.
7.3 ITCD's liability for any and all claims of any kind (except intellectual
property infringement) regarding the Equipment, Software and Services,
including negligence, breach of warranty, or otherwise, shall, in the
aggregate, not exceed Customer's purchase price for the particular item of
Equipment, Software, or Service which is the subject of such claim. ITCD's
liability for any and claims of any kind regarding intellectual property
infringement shall be limited to the greater of Customer's purchase price
for the particular item of Equipment, Software or Service or the maximum
amount of any indemnity that ITCD is entitled to from the manufacturer or
third party provider of the Equipment Software or Service; provided,
however, such indemnity from the manufacturer or third party provider shall
be prorated among Customer and all ITCD's other customers having similar
claims relating to the same Alleged Infringing Apparatus (as defined
herein).
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7.4 In no event shall either party be liable for indirect, special, incidental
or consequential damages resulting from or arising out of its performance
or failure to perform any of its obligations under this Agreement, for any
warranty made hereunder, or for any other claim or loss arising out of,
based upon or relating in any manner to the Equipment, Software, Services
or this Agreement, whether or not such party has been advised, or should
have known of the possibility of such damages, including, but not limited
to, lost profits, loss of use of equipment, cost of capital, cost of
substitute facilities, equipment downtime costs or claims of the Customer's
customers.
7.5 Each party hereby represents and warrants to the other that:
(a) It is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has full and
unrestricted power and authority, corporate or otherwise, to execute
and deliver this Agreement and to carry out the transactions
contemplated hereby;
(b) The execution, delivery and performance of this Agreement has been
duly and validly authorized by all necessary corporate actions (none
of which actions have been modified or rescinded, and all of which
actions are in full force and effect) and that this Agreement
constitutes a valid and binding obligation enforceable in accordance
with its terms; and
(c) Neither the execution and delivery of this Agreement or any document,
agreement or instrument contemplated hereby nor the consummation of
the transactions contemplated hereby or thereby will constitute a
violation of, or default under, or conflict with, any term or
provision of any contract, commitment, indenture, lease or other
agreement to which such party is a party or by which such party is
bound.
ARTICLE 8. TITLE AND DELIVERY
Title to each item of Equipment shall pass to Customer upon final payment to
ITCD. Risk of loss shall pass to Customer upon shipment of each item of
Equipment or Software from the manufacturer.
ARTICLE 9. ACCEPTANCE
The Equipment and Software ordered after the Effective Date shall be
deemed accepted by Customer twenty (20) days after receipt unless
Customer gives ITCD written notice of rejection within such time. The
notice of rejection shall specify the manner in which the Equipment or
Software fails to conform to the Order and/or the specifications set
forth on Appendix A. Acceptance of the Equipment and Software shall
relieve ITCD of all further responsibility relative to the Equipment
or Software except as expressly provided in Appendix E (Equipment
Maintenance Service) and Appendix F (Software Maintenance Service) of
this Agreement, Section 18.4 (Indemnification) and the warranty set
forth in Section 7.1, which may survive acceptance.
ARTICLE 10. DESIGN CHANGES
The design of the Equipment or Software may be altered or changed from
time to time by the Equipment manufacturer or Software developer,
provided however, that no change or alteration shall be made which
deviates from the specifications as detailed in Appendix A unless
consented to in writing by Customer, which consent shall not be
unreasonably withheld, conditioned or delayed. Notwithstanding the
foregoing, the Equipment manufacturer and Software owner shall have
the right to change or alter the design or specifications for the
Equipment or Software in order to comply with the statutes, laws,
rules, regulations, orders or decrees of any government or regulatory
authority, without the consent of Customer. To the extent ITCD
receives notice of such change from the manufacturer or developer,
ITCD shall provide Customer with prompt written notice of all such
changes required in accordance with the preceding sentence.
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ARTICLE 11. SOFTWARE LICENSE AND RIGHTS IN DATA
Customer acknowledges that all Software associated with the operation of each
VSAT or other Equipment is owned by NECAM or other third parties and licensed to
Customer in connection with Customer's purchase of such Equipment or Software.
Nothing in this Agreement is intended to transfer to Customer any rights to
proprietary data including, but not limited to, design, engineering and
technical information, whether or not patentable, and trade secret information
related to either Equipment or Software contained therein. Any and all Software
purchased hereunder or to be serviced by ITCD pursuant to this Agreement,
including Software utilized or embedded in any Equipment, shall be used
exclusively with such Equipment, shall be maintained by ITCD or NECAM according
to Appendix F and shall remain confidential, and, except as provided below in
this Article 11, shall not be copied, disclosed, reverse engineered or
disseminated in any fashion by Customer or to any third party without the
express written consent of ITCD and NECAM. The sole exception to the prohibition
on copying Software shall be with respect to SNMS software, for which the
Customer shall be allowed to retain one (1) back-up copy for use at its
Alternative Hub location, in the event of a catastrophic failure of the primary
SNMS. Additionally, in the event of a catastrophic failure the primary SNMS
system located at the Primary Hub may be used to operate Equipment at the
Alternate Hub, or, if the Alternate Hub is operated under the control of
Customer or its nominee, in the event of a catastrophic failure affecting the
Primary Hub, the primary SNMS system located at the Alternate Hub may be used to
operate Equipment at the Primary Hub. With the exception of maintenance testing
done from time to time, Customer shall not use the primary SNMS at the Alternate
Hub concurrently with use of the primary SNMS at the Primary Hub, whether for
satellite access, load-sharing or any other purpose, without the prior written
consent of ITCD and NECAM, and only upon payment of such additional license fees
as ITCD may require.
ARTICLE 12. FORCE MAJEURE
ITCD shall not be liable for or be in default under this Agreement for any
delays or any failure to perform under this Agreement due to unforeseen
circumstances or causes beyond its reasonable control, including, but not
limited to, acts of God, war, riots, embargoes, acts of any government, fires,
floods, explosions, the elements, epidemics, strikes, lockouts, satellite
failure, or Customer's acts or omissions; provided, however, loss of business,
customers, or adverse market or financial conditions that may adversely affect a
party's performance shall not be deemed events of force majeure.
ARTICLE 13. NOTICES
In addition to such other requirements as may be set forth herein, any notices
hereunder by one party to the other party shall be given in writing by personal
delivery or by recognized overnight delivery service or posted by certified mail
return receipt requested, to the parties at the addresses set forth below each
party's signature. Notices will be deemed to have been given hereunder when
delivered (whether or not accepted by the addressee).
ARTICLE 14. PROPRIETARY INFORMATION
14.1 Should proprietary information of either Customer or ITCD be required by
the other in the performance of this Agreement, the party receiving such
proprietary information ("Recipient" hereafter) hereby agrees to receive
and maintain same in confidence and to take such precautions as may be
reasonably necessary to protect same from disclosure to others, or use by
itself or others for any purpose inconsistent with this Agreement without
prior written consent of the other party. Precautions taken shall be deemed
reasonable if at least equivalent to Recipient's precautions with respect
to its own proprietary information. Proprietary information shall mean
technical or business information or data conveyed in written, graphic, or
other permanent tangible form identified as being proprietary or, in the
case of oral conveyances, any such information which a party identifies to
the other party in writing as confidential within thirty (30) days after
the oral conveyance. The Recipient shall use the proprietary information of
the other party solely in connection with the performance of Recipient's
obligations under this Agreement.
14.2 The foregoing confidentiality restrictions, however, shall not extend to
any part of the proprietary information which:
(a) was already known to Recipient at the time of disclosure under this
Agreement as can be established by written documentation;
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(b) was known or was generally available to the public at the time of
disclosure hereunder;
(c) becomes known or generally available to the public (other than by act
of Recipient) subsequent to its disclosure hereunder;
(d) is disclosed or made available in writing to Recipient by a third
party having an apparent bona fide right to do so;
(e) is independently developed by Recipient without the use of the
proprietary information as can be established by written
documentation; or
(f) is required by law to be released.
14.3 Technology Rights
ITCD and Customer acknowledge and agree that (i) Customer is the sole and
exclusive owner of any and all trade secrets, know-how and proprietary
technical information, copyrightable material, including drawings,
documents, reports, schematics, parts lists, and specifications, and
inventions, whether or not patentable, that are related to the subject
matter of this Agreement, specifically including, without limitation,
Appendix A, that are developed solely and exclusively by Customer in
connection with the negotiation or performance of this Agreement
(collectively, "Customer Technology"); (ii) ITCD is the sole and exclusive
owner of any and all trade secrets, know-how and proprietary technical
information, copyrightable material, including drawings, documents,
reports, schematics, parts lists, and specifications, and inventions,
whether or not patentable, that are related to the subject matter of this
Agreement, specifically including, without limitation, Appendix A, that are
developed solely and exclusively by ITCD in connection with the negotiation
or performance of this Agreement (collectively, "ITCD Technology"); and
(iii) ITCD and Customer shall jointly own any and all trade secrets,
know-how and proprietary technical information, copyrightable material,
including drawings, documents, reports, schematics, parts lists, and
specifications, and inventions, whether or not patentable, that are related
to the subject matter of this Agreement, specifically including Appendix A,
that are jointly developed by ITCD and Customer in connection with the
negotiation or performance of this Agreement (collectively, "Jointly Owned
Technology"). Notwithstanding anything in this Agreement to the contrary,
any and all trade secrets, know-how and proprietary technical information,
copyrightable material, including drawings, documents, reports, schematics,
parts lists and specifications, and inventions, whether or not patentable,
that are related to the VNI and the features, functions and performance of
entities within the VNI and the protocols that interfaces to the VNI, shall
be included within "ITCD Technology"; and, notwithstanding anything in this
Agreement to the contrary, any and all trade secret know-how and
proprietary technical information, copyrightable material, including
drawings, documents, reports, schematics, parts lists and specifications,
and inventions, whether or not patentable, that are related to Customer
provided equipment and components connected to the VNI, as defined in
Appendix A, ("Connected Components") are included in "Customer Technology".
Customer and ITCD hereby grant one to the other and ITCD and Customer
hereby accept from each other the irrevocable, perpetual, worldwide,
royalty-free, unlimited, non-exclusive right and license to any and all
Jointly Owned Technology, including the right to use, copy, modify,
distribute and sublicense any and all copyrightable materials, and the
right to fully exercise without restriction any and all of the rights
pertaining to such Jointly Owned technology, whether for Customer's or
ITCD's own internal use, for the benefit of any of Customer's or ITCD's
current or future customers, or for any other reason whatsoever.
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ARTICLE 15. SAFETY
Each party will make certain that Worker's Compensation Insurance covering its
employees and installation contractors is in force. Each Party will provide its
services in accordance with applicable safety requirements, including, without
limitation, the requirements of the Occupational Safety and Health Act of 1970,
as amended.
ARTICLE 16. WAIVER
No failure of either party to exercise any power hereunder or to insist upon
strict compliance by the other party with any obligation or provisions
hereunder, and no custom or practice of the parties at variance with the terms
hereunder shall constitute a waiver of the right to demand exact compliance with
the terms hereof.
ARTICLE 17. COMPLIANCE WITH APPLICABLE LAW AND REGULATIONS
17.1 ITCD represents that all items of Equipment sold and Services provided
under this Agreement comply with applicable laws and regulations of the
United States, including, but not limited to, The Communications Act of
1934, as amended, and the Rules and Regulations of the Federal
Communications Commission ("FCC").
17.2 During the Term, provided that Customer is not in default of this
Agreement, ITCD shall maintain its authorization to operate the Primary Hub
(55 Marietta Street, Atlanta, Georgia) and include in such license VSAT
sites of Customer controlled by ITCD's Primary Hub. ITCD shall have no
responsibility with respect to licenses and approvals necessary for the
Alternate Hub.
17.3 Except for the authorization otherwise set forth in Section 17.2, it shall
be the responsibility of Customer to obtain any licenses, permits, and
zoning approvals for the installation and operation of the Equipment and
Software at the site at which the Equipment and Software is to be
installed. Customer's failure to obtain necessary licenses and/or permits
shall not relieve Customer of its obligations hereunder.
17.4 ITCD agrees to provide reasonable assistance to Customer in obtaining
necessary licenses and permits to operate the Equipment or Software. Such
assistance shall include providing the technical information related to
the Equipment or Software necessary to file for or pay any costs associated
with such licenses or permits. Such assistance shall in no way imply an
obligation on the part of ITCD to file for such licenses or permits on
behalf of the Customer.
ARTICLE 18. INDEMNIFICATION
18.1 Customer assumes liability for, and hereby agrees to indemnify and save
harmless ITCD, its subcontractors, employees, officers, directors,
successors and assigns, from and against any and all liabilities,
obligations, losses, damages, claims, demands, penalties, actions, costs
and expenses, including reasonable attorney's fees and expenses, of
whatever kind and nature arising out of Customer's use, operation,
ownership (except with regard to ITCD's warranty obligations pursuant to
Section 7.1 herein), or of any item of Equipment, Software or Services,
regardless of where, how and by whom operated, or arising out of any
failure on the part of Customer to perform or comply with any provision of
this Agreement. The foregoing indemnification obligation of Customer shall
not affect ITCD's warranty obligations under Section 7.1 Notwithstanding
the foregoing, Customer's obligation to indemnify ITCD shall not apply to
any intellectual property claim made by a third party which is based on
ITCD operation or use of the Equipment, Software or Services in an
infringing manner.
18.2 Customer shall indemnify ITCD and save it harmless from loss and damage,
including infringement (including reasonable attorney's fees) and claims
by any third parties associated with, caused by, or resulting from the
transmission of the Customer's data.
18.3 The Customer shall indemnify ITCD from any claim made relating to any
warranty or representation made by Customer to any third party (including,
without limitation, its customers) relating to the Equipment, Software or
any Services provided by ITCD hereunder.
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18.4 ITCD agrees that in the event any Equipment or Software is alleged to
infringe any valid U.S. patent, ("Alleged Infringing Apparatus"), ITCD
shall indemnify Customer as and to the extent of any and all
indemnification it receives from the manufacturer or developer/owner of the
infringing Software or Equipment; provided, however, such manufacturer or
developer/owner indemnification shall be prorated among Customer and all
other customers of ITCD having similar claims relating to infringement of
such software or equipment.
18.5 Customer agrees that the indemnification described in Section 18.4 shall
not apply, and Customer shall indemnify, defend and hold harmless ITCD with
respect to any claim of U.S. patent infringement which may be brought
because of (a) ITCD's or the manufacturer's compliance with Customer's
particular design requirements, specifications or instructions, or (b)
Customer's use of the Alleged Infringing Apparatus in combination with
other apparatus not supplied by ITCD or the manufacturer of the Alleged
Infringing Apparatus, or (c) for a purpose or application inconsistent with
that specified in Appendix A hereto, or (d) Customer's modification of
Alleged Infringing Apparatus, or (e) work that ITCD performs under this
Agreement with respect to any other third party hardware or software other
than NEC America Equipment and Software. In no event shall ITCD's total
liability under Section 18.4 exceed the greater of the purchase price paid
by Customer for the Alleged Infringing Apparatus or the amount of the
indemnity ITCD receives from the manufacturer or developer/owner of the
infringing Equipment, Service or Software; provided, however, such
manufacturer or developer/owner indemnification shall be prorated among
Customer and all other customers of ITCD having similar claims relating to
infringement of such software, service or equipment. In any such suit so
defended, if the use of the Alleged Infringing Apparatus is held to
constitute an infringement and is enjoined, or if in light of any claim
ITCD deems it advisable to do so, ITCD will, at its option, either procure
the right to continue the use of the same for Customer, replace the same
with non-infringing apparatus, modify the same so as to be non-infringing,
or if none of the foregoing are reasonably practicable, take back the
Alleged Infringing Apparatus, and refund its respective purchase price less
a reasonable allowance for use, damage or obsolescence.
ARTICLE 19. GOVERNING LAW
THIS AGREEMENT, ITS FORMATION, CONSTRUCTION, AND INTERPRETATION SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF ALABAMA (EXCLUDING CONFLICTS OF LAWS
PRINCIPLES).
ARTICLE 20. ASSIGNMENTS
Neither party may assign this Agreement without the prior written consent of the
other party, which consent shall not be unreasonably withheld. Notwithstanding
the foregoing, either party may assign its rights under this Agreement, without
the written consent of the other party, to any Affiliate, or to any successor by
merger, divestiture, consolidation or reorganization, or to any purchasers of
all or substantially all of the assets of the business of such party, subject to
the assignee's written agreement to be bound by the terms of this Agreement. In
addition, ITCD may assign and pledge its interest under this Agreement as
security for indebtedness without the prior written consent of Customer. ITCD
shall also have the right to subcontract work hereunder in the normal course of
business without obtaining Customer's written consent, but such subcontracting
shall not relieve ITCD of any obligation or responsibilities under this
Agreement.
ARTICLE 21. DEFAULT BY CUSTOMER
21.1 An Event of Default shall occur if:
(a) Customer fails to pay any charge or amount on the Baseline Due Date,
Additional Due Date, or Purchase Due Date, as applicable, and such
failure continues for a period of five (5) business days after
Customer's receipt of written notice thereof from ITCD;
(b) Customer fails to perform or observe in any material respect any
covenant or agreement to be performed or observed by it hereunder and
such failure continues uncured for thirty (30) days after Customer's
receipt of written notice thereof from ITCD, unless such failure is
not reasonably correctable within such thirty (30) day period in which
case an Event of Default by Customer shall not occur if Customer
commences and diligently pursues corrective action within such thirty
(30) day period as soon as possible after being so notified.
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(c) Customer, ceases doing business as a going concern, makes an
assignment for the benefit of creditors, admits in writing its
inability to pay its debts as they become due, files a voluntary
petition in bankruptcy, is adjudicated as bankrupt or an insolvent,
files a petition seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
arrangement under any present or future statute, law or regulation or
files an answer admitting the material allegations of a petition filed
against it in any such proceeding, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of it or of all or
any substantial part of its assets or properties, or if it or its
shareholders shall take any action looking to its dissolution or
liquidation; provided, however, Customer shall not be in default by
virtue of Customer's pending bankruptcy case filed in the U.S.
Bankruptcy Court, Northern District of Texas, Dallas Division (Case
No. 01-34275-SAF-11) ("Bankruptcy Case");
(d) If within sixty (60) days after the commencement of any proceedings
against Customer seeking reorganization, arrangement, readjustment,
liquidation, dissolution or similar relief under any present or future
statute, law or regulation, such proceedings shall not have been
dismissed, or if within sixty (60) days after the appointment without
Customer's consent or acquiescence of any trustee, receiver or
liquidator of it or of all or any substantial part of its assets and
properties, such appointment shall not have been vacated; provided,
however Customer shall not be in default by virtue of the Bankruptcy
Case.
21.2 Upon the occurrence of an Event of Default, ITCD may, immediately terminate
this Agreement and terminate ITCD's performance of its duties hereunder.
Customer hereby acknowledges and agrees that the court in the Bankruptcy
Case has entered an Order dated July 20, 2001, stating that the automatic
stay of 11 USC 362 has been modified such that ITCD may immediately proceed
to enforce any of its rights and remedies with respect to Customer in the
event of a post-assumption default after five (5) business days written
notice and opportunity to cure has lapsed. Any termination of the Agreement
shall not terminate or otherwise affect any parties' obligations under any
and all other valid Agreements or Contracts, including the Satellite
Services Supplemental Agreement which shall remain in full force and
effect.
21.3 Despite termination of this Agreement, Customer shall remain responsible
for all amounts then due to ITCD and Customer shall pay for all damages
proven to result from Customer's default under this Agreement.
ARTICLE 22. DEFAULT BY ITCD
22.1 An Event of Default shall occur if:
(a) ITCD shall fail to perform or observe in any material respect any
covenant or agreement to be performed or observed by it hereunder
(excluding any covenant or agreement the sole remedies for which are
provided in Appendix G) and such failure continues uncured for thirty
(30) days after receipt of written notice thereof to ITCD by Customer,
unless such failure is not reasonably correctable within such thirty
(30) day period in which case an Event of Default by ITCD shall not
occur if ITCD commences and diligently pursues corrective action
within such thirty (30) day period as soon as possible after being so
notified;
(b) ITCD ceases doing business as a going concern, makes an assignment for
the benefit of creditors, admits in writing its inability to pay its
debts as they become due, files a voluntary petition in bankruptcy, is
adjudicated as bankrupt or an insolvent, files a petition seeking for
itself any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar arrangement under any present or
future statute, law or regulation or files an answer admitting the
material allegations of a petition filed against it in any such
proceeding, consents to or acquiesces in the appointment of a trustee,
receiver or liquidator of it or of all or any substantial part of its
assets or properties, or if it or its shareholders shall take any
action looking to its dissolution or liquidation;
(c) If within sixty (60) days after the commencement of any proceedings
against ITCD seeking reorganization, arrangement, readjustment,
liquidation, dissolution or similar relief under any present or future
statute, law or regulation, such proceedings shall not have been
dismissed, or if within sixty (60) days after the appointment without
ITCD's consent or acquiescence of any trustee, receiver or liquidator
of it or of all or any substantial part of its assets and properties,
such appointment shall not have been vacated.
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22.2 Upon the occurrence of an Event of Default, Customer may, upon written
notice to ITCD, immediately terminate this Agreement. Any termination of
the Agreement shall not terminate or otherwise affect any parties'
obligations under the Satellite Services Supplemental Agreement, which
shall remain in full force and effect.
22.3 Despite termination of this Agreement, Customer shall remain responsible
for all amounts then due to ITCD under this Agreement up to the date of
termination.
22.4 ITCD will in good faith assist Customer in a smooth transition to
Customer's new service provider.
ARTICLE 23. SEVERABILITY
If any provision of this Agreement is held invalid, the remainder of this
Agreement shall not be affected thereby.
ARTICLE 24. ABILITY TO ENTER AGREEMENT
The parties executing this Agreement hereby covenant and warrant that the
corporation has full right and authority to enter into this Agreement, and that
each of the persons signing on behalf of the corporation are duly authorized to
do so.
ARTICLE 25. RELATIONSHIPS OF PARTIES
This Agreement is not intended to constitute or create a joint venture, pooling
arrangement, partnership, agency or business organization of any kind. ITCD and
Customer shall be independent contractors for all purposes and neither party
shall act as or hold itself out as agent for the other or create or attempt any
obligations or liabilities on behalf of the other party.
ARTICLE 26. ENTIRETY OF AGREEMENT
This Agreement consists only of this document upon which the parties have
affixed their signatures and those documents specifically incorporated herein by
reference. This Agreement as so constituted is the entire Agreement between the
parties with respect to the subject matter hereof and supersedes all other
previous statements and contracts, communications or agreements, whether oral or
written with respect to the subject matter hereof. This Agreement is independent
of the Third Amended and Restated Satellite Services Supplemental Agreement
between ITCD and Customer dated August 1, 2001, and does not amend or modify
such contract, which remains in full force and effect. No modification, of any
provision hereof shall be binding upon the parties unless evidenced in writing
and signed by both parties.
ARTICLE 27. SERVICE LEVEL AGREEMENT
See the attached Appendix G.
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IN WITNESS WHEREOF, the parties hereto, each by a duly authorized officer, have
caused this Agreement to be executed as of the date written above.
WEBLINK WIRELESS, INC. ITC DELTACOM COMMUNICATIONS, INC.
By: Xxxxxxx X. Xxxx By: Xxxxxx X. Xxxxx
----------------------------- -----------------------------
Title: Senior Vice President Title: Vice President
----------------------------- -----------------------------
Date: 7-31-01 Date: August 1, 2001
----------------------------- -----------------------------
By: /s/ XXXXXXX X. XXXX By: /s/ XXXXXX X. XXXXX
----------------------------- -----------------------------
Address for Notice: Address for Notice:
WebLink Wireless, Inc. ITC DeltaCom Communications, Inc.
0000 Xxx Xxxxxxx, Xxxxx 000 55 Marietta Street, 18th Floor
Dallas, Texas 75219 Xxxxxxx, Xxxxxxx 00000
Attention: V.P. Network Operations Attention: V.P. of Project Services
With a Copy to (which shall not constitute notice):
WebLink Wireless, Inc. ITC DeltaCom Communications, Inc.
0000 Xxx Xxxxxxx, Xxxxx 000 0000 X. Xxxxxxxx Xxxxxxx
Xxxxxx, XX 00000 Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel Attention: Assistant General Counsel
[STAMP]
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