JOINT MARKETING AND OPERATING AGREEMENT
Ameritech Mobile Communications, Inc. ("AMERITECH") on behalf of itself and its
affiliates licensed to provide wireless service in the CDPD Markets generally
identified on Exhibit 1 and U.S. Wireless Data ("USWD") desire to enter into a
joint marketing and operating agreement (as defined below) pursuant to the
following terms and conditions:
1.) USWD SOLUTION. The "USWD Solution" includes:
a) A USWD Tranz Enabler provided free of charge to a retail
merchant that meets established minimum transaction volume requirements; and
b) An AMERITECH CDPD IP address, and
c) A USWD provided credit/debit card transaction payment service for
fixed location retail merchants who currently utilize VeriFone TRANZ 330, 380 or
460 credit card authorization terminals.
2.) AMERITECH RESPONSIBILITIES
a) AMERITECH will use good faith efforts to have its sales associates,
in its CDPD markets (generally identified in attached Exhibit 1), solicit retail
merchants that meet the criteria set forth in Section 1.c) above to convert
their existing dial line credit card merchant service to a wireless credit card
merchant service offered from USWD.
b) Should the retail merchant wish to convert its present service, the
AMERITECH sales associate will provide the merchant with an application to be
filled out, the form of which is attached hereto as Exhibit 2. The AMERITECH
sales associate will submit the completed merchant application and the merchant
Rates and Fees Schedule, attached hereto as Exhibit 3.
c) AMERITECH will use good faith efforts to solicit the USWD retail
merchant solution in all of its' CDPD markets.
d) AMERITECH will utilize, at no charge, fully operational
demonstration units in sufficient quantities to make available to its sales
associates through USWD for AMERITECH sales demos. These combined TRANZ 330 and
wireless "Enabler" units will be rented from USWD for $30 per month. AMERITECH
will provide the IP addresses for each respective demonstration unit.
e) The responsibilities of the AMERITECH sales associate will be the
following.
i) Make good faith efforts to attend scheduled training sessions
conducted by USWD at no additional charge to Ameritech;
ii) Use good faith efforts to solicit the USWD specified type of
retail business merchant;
iii) Inform the merchant that there is a $150 application fee
that will be either assessed on the merchant's first monthly
statement or with a check collected by the USWD representative at
the time of installation.
iv) Deliver completed merchant application and Rates and Fee
Schedule to the USWD representative.
v) Optionally, participate with the USWD representative in the
installation of TRANZ Enablers for approved retail merchants
acquired under this program.
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f) AMERITECH will provide, as AMERITECH deems necessary, promotional
programs that may include but not be limited to the following elements for
marketing this solution in the "Wireless Merchant Program":
i) Development of collateral material (data slicks, color
brochures, etc.) using both AMERITECH and USWD logos. Use of
Ameritech's logo is subject to the terms of this Agreement,
including, but not limited to, prior review and approval of all
use of the logo;
ii) Direct mail and/or telemarketing campaign and local
advertising to generate leads for the AMERITECH sales associates;
iii) Sales incentives/contests for the AMERITECH associates.
3.) USWD RESPONSIBILITIES
a) USWD will process the application for the merchant service and, if
approved, will deploy and install TRANZ Enabler(s) using AMERITECH CDPD services
as the communications transport.
b) USWD will order AMERITECH CDPD NEI's for all merchants acquired
under this program offering
c) For each AMERITECH CDPD market identified to participate in the
"Wireless Merchant Program," USWD will provide the following:
i) Develop and distribute all sales training material for each
AMERITECH sales representative who will be soliciting retail
merchants;
ii) A minimum of one USWD sales representative residing in each
AMERITECH CDPD market to coordinate all USWD responsibilities for
this program; and
iii) Delivery of fully operational demonstration units that will
be rented by the AMERITECH sales office.
d) The USWD sales representative will perform the following functions
in the AMERITECH CDPD markets:
i) Training of the AMERITECH sales associates, which will include
classroom training and joint sales calls;
ii) Provide the AMERITECH sales associates with all retail
merchant application paperwork, procedures and checklists
necessary for the AMERITECH sales associate to execute a
successful solicitation;
iii) Process all merchant applications according to USWD internal
procedures;
iv) Negotiate any non-standard price quotations with the retail
merchants; and
v) Timely provision and deployment of the terminal device for the
merchant upon approval of the application.
e) USWD will order all CDPD NEI's for approved retail merchants from
AMERITECH. The process for this procedure will be jointly developed by USWD and
AMERITECH.
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f) USWD will pay AMERITECH $25 each for the first 2 NEI's activated for
each approved retail merchant that is solicited by the AMERITECH sales
representative in this program. For any additional activations for the same
retail merchant, USWD will pay AMERITECH $15 for each NEI. AMERITECH will
invoice USWD on a monthly basis for such fees; in all other respects, billing
shall be executed as set forth in the Packet Service Agreement. Should there be
a negotiated application fee that is less than the standard USWD application
fee, USWD and AMERITECH must both approve the decrease if it means that
AMERITECH will receive less than the stated activation fees.
g) USWD will provide AMERITECH with weekly sales reports indicating
approved retail merchants solicited by the AMERITECH sales associate.
h) USWD will be responsible for all retail merchant operational
training, either directly or indirectly.
i) USWD will be responsible, either directly or indirectly, for all
first level help desk (24x7) support of the retail merchant for this program.
j) USWD agrees to deploy a fully configured merchant system within a
period of 10 business days following the approval of the merchant application by
the credit card processor used by USWD provided the quantity of hardware is less
than 25 units per occurrence. For any quantity above 25 units, USWD agrees to
schedule deployment in a timely manner with the retail merchant.
k) Simultaneous with the execution of this Agreement, USWD has agreed
to be bound to the terms and conditions set forth in Ameritech's standard form
of CDPD service order which terms and conditions are incorporated herein by this
reference.
l) USWD agrees to submit a properly completed merchant application to
the credit card processing company within 2 days of the submission of the
application from the AMERITECH sales associates.
4.) TERMS AND TERMINATION. The initial term of this agreement is two years from
the execution date. This agreement will automatically renew for an additional
two years at the end of the original term. Either party may terminate this
agreement, at any time, by giving a 90 day written notice to the other party.
5.) EXCLUSIVITY. USWD agrees to use AMERITECH CDPD services exclusively in all
AMERITECH CDPD markets for the duration of this agreement except for those
unsolicited Customer referred to USWD by an alternative CDPD service provider.
AMERITECH agrees to offer the USWD retail merchant solution, as defined in
section 1, exclusively for the term of this agreement. AMERITECH agrees that it
will not offer the same or similar solution from another party for the term of
this agreement. This exclusivity is limited to the TRANZ enabler program and
does not prohibit AMERITECH from offering other CDPD integrated terminal
solutions. USWD and AMERITECH agree to negotiate exclusivity terms on future
USWD solutions as they become available.
6.) EVENTS OF DEFAULT. It shall be an event of default for a party hereunder to
fail to comply with such party's responsibilities as set forth above, and such
failure continues for a period of 10 days after receipt of notice of default
specifying the nature of the default.
7.) REMEDIES OF DEFAULT. In addition to any other remedy available at law or
equity, in the event of a default, the non-defaulting other party may terminate
agreement without liability.
8.) ADDITIONAL TERMS AND CONDITIONS.
AFFILIATES
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As used in this Agreement, the term "Affiliates" shall include Ameritech
Corporation and any business entity which is, directly or indirectly, at least
fifty percent (50%) owned by Ameritech Corporation. "Affiliate" also means any
successor to Ameritech Corporation, whether by change of name, dissolution,
merger, consolidation, reorganization or otherwise.
ASSIGNMENT
Neither party shall assign any right or obligation under this Agreement without
the other party's prior written consent. Any attempted assignment shall be void,
except that either party may assign moneys due or to become due to it, provided
that (a) the assigning party gives the other party at least thirty (30) days
prior written notice of such assignment and (b) such assignment does not impose
upon the other party obligations to the assignee other than the payment of such
moneys.
Notwithstanding the foregoing, Ameritech may assign this Agreement, in whole or
in part, to any of its Affiliates. Upon such assignment and assumption of
liability thereto by the assignee the assignor shall be discharged of any
liability under this Agreement.
Without limiting the generality of the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of the parties' respective
successors and assigns.
CHOICE OF LAW AND FORUM
This Agreement and any claims arising hereunder or related hereto, whether in
contract or tort, shall be governed by the laws of Illinois. Any suit regarding
this Agreement must be brought in a court of competent jurisdiction in Xxxx
County, Illinois.
COMPLIANCE WITH LAWS
USWD and all persons furnished by USWD shall comply with the provisions of the
Fair Labor Standards Act, the Federal Occupational Safety and Health Act,
environmental laws (the subject of which may include, but shall not be limited
to, air, water, noise, soil, and land-fill areas), the rules and regulations of
the Federal Communications Commission and all other applicable federal, state
and local laws, ordinances and regulations in the performance of this Agreement,
including the procurement of required permits, and certificates. "Performance"
as used herein shall include, but not be limited to, USWD's furnishing,
installation, removal, processing, transportation, use, disposal, treatment,
reclamation or other method of handling materials subject to this Agreement.
USWD shall maintain throughout the term of this Agreement all federal, state and
local licenses, permits and certificates necessary to perform this Agreement,
which shall be promptly furnished to Ameritech upon request.
CONFIDENTIAL INFORMATION
Any information, including but not limited to, Customer information,
specifications, drawings, computer programs, technical or business information
or other data in whatever form (hereafter "Information"), furnished by Ameritech
to USWD, whether in writing, orally or visually, under or in contemplation of
this Agreement or to which USWD has access through its performance hereunder
shall be considered confidential and shall be subject to the following:
(a) USWD shall restrict disclosure of the Information to USWD's
employees with a "need to know" (i.e., employees that require
the Information to perform their responsibilities in
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connection with this Agreement) and shall not disclose to any
other person or entity without the prior written consent of
AMERITECH;
(b) USWD shall use the Information only for purposes of performing
under this Agreement;
(c) USWD shall advise those employees who access the Information
of their obligations with respect thereto;
(d) USWD shall copy the Information only as necessary for those
employees who are entitled to receive it and shall ensure that
all confidentiality notices are reproduced in full on such
copies; and
(e) USWD shall return all copies of such Information to Ameritech
at Ameritech's request.
USWD recognizes and agrees that the unauthorized use or disclosure of the
Information would cause irreparable harm to Ameritech for which it would have no
adequate remedy at law, and that an actual or contemplated breach of this Clause
shall entitle Ameritech to obtain immediate injunctive relief prohibiting such
breach, in addition to any other rights available to it. The obligations herein
contained shall expressly survive the termination or expiration of this
Agreement.
The Information shall not be considered confidential and shall not be subject to
the foregoing if USWD can demonstrate that the Information:
(a) is or becomes available to the public through no breach of this
Agreement;
(b) was previously known by USWD without any obligation to hold it
in confidence;
(c) is received from a third party free to disclose such
Information without restriction;
(d) is independently developed by USWD without the use of Ameritech's
Information;
(e) is approved for release by written authorization of Ameritech,
but only to the extent of such authorization;
(f) is required by law or regulation to be disclosed, but only to
the extent and for purposes of such required disclosure; or
(g) is disclosed in response to a valid order of a court or lawful
request of a governmental agency, but only to the extent of
and for the purposes of such order or request, provided that
USWD first notifies Ameritech or the order or request ten (10)
days prior to disclosure and permits Ameritech to seek an
appropriate protective order.
No Information furnished by USWD to Ameritech hereunder or in contemplation
hereof shall be treated as confidential by Ameritech unless specifically labeled
as such by USWD in advance of its disclosure to Ameritech. In such event,
Ameritech shall safeguard and protect USWD's confidential Information in
accordance with the provisions above, except Ameritech may disclose such
Information to employees of Ameritech Mobile Communications, Inc. and the
Affiliates with a need to know.
ENTIRE AGREEMENT
The terms contained in this Agreement and the attachment(s) and specification(s)
referred to herein, which are incorporated herein by this reference, constitute
the entire agreement between the parties with respect to the subject matter
hereof, superseding all prior understandings and communications, oral or
written. The Parties acknowledged that this Agreement has been mutually
negotiated. This Agreement may not be
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modified except by a writing signed by both parties.
HEADINGS
The Section headings inserted in this Agreement are for convenience only and
shall not affect the meaning or interpretation of this Agreement.
INDEMNITY
USWD shall defend, indemnify and hold harmless Ameritech, its corporate
Affiliates, their officers, employees and agents from and against all losses,
damages, expenses (including attorneys' fees and costs), claims, suits and
liabilities, whether based in contract or tort (including strict liability), to
the extent arising out of or resulting from (a) USWD's acts or omissions, or
those of persons furnished by it, (b) any defective USWD Tranz Enabler provided
hereunder, (c) the failure of USWD or any USWD Tranz Enabler to fully comply
with the terms and conditions of this Agreement, or (d) assertions under
Workers' Compensation or similar laws made by persons furnished by USWD.
Ameritech shall promptly notify USWD of any written claim or demand for which
USWD is responsible under this Clause.
Without limiting the generality of the foregoing, to the extent that any
services are performed in the State of Ohio it is expressly agreed that USWD
hereby waives any immunity from its obligations to defend, indemnify and hold
harmless Ameritech against and from claims by employees of USWD, which immunity
would otherwise arise by operation of Ohio Revised Code xx.xx. 4123.74 and
4123.741 and Section 35, Article II, Ohio Constitution or any other statute or
constitutional provision.
INFRINGEMENT
USWD shall defend, indemnify and hold harmless Ameritech and its corporate
Affiliates, their officers, employees and agents from and against any suits,
claims, actions, losses, damages, expenses (including attorneys' fees and
costs), or liabilities that may result by reason of any alleged violation,
infringement or misappropriation of a United States patent, trade secret,
copyright, trademark or other proprietary right based on Ameritech's Customer's
use of the USWD Tranz Enabler (including the receipt of any services) provided
under this Agreement. Ameritech shall promptly notify USWD of any claim of
infringement, violation or misappropriation for which USWD is responsible and
shall cooperate with USWD to facilitate the defense or settlement of such claim.
USWD or USWD's attorney(s) shall keep Ameritech reasonably apprised of the
continuing status of the claim, including any lawsuit resulting therefrom, and
shall permit Ameritech, upon Ameritech's written request, to participate in the
defense or settlement of such claim.
If use of the USWD Tranz Enabler shall be prevented or appears likely to be
prevented by court order or settlement resulting from any such claim, USWD
shall, at its expense, work in good faith with Ameritech's Customer to resolve
the claim in such fashion as to minimize the impact on Ameritech's Customer.
LIMITATION ON LIABILITY.
In no event shall either party be liable to the other party for any lost profits
or indirect, incidental, special or consequential damages, regardless of whether
or not a party has been advised of the possibility of such damages. The
foregoing notwithstanding, nothing in this section will limit a party's
obligations to indemnify fully the other for actions brought by third parties,
even if such actions include claims for indirect, incidental, special or
consequential damages.
NON-SOLICITATION
Unless otherwise mutually agreed to by the parties in writing, USWD shall not
hire or solicit the employment of any personnel of Ameritech directly or
indirectly associated with this Agreement during the term of this Agreement and
for a period of twelve (12) consecutive months thereafter.
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NOTICES
Any notice which under the terms of this Agreement must or may be given or made
by either party hereunder shall be in writing and shall be delivered personally
or sent by express delivery service or by certified mail, return receipt
requested, addressed to the respective parties as follows:
To Ameritech: Ameritech Mobile Communications, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxxx, XX 00000-0000
Attn: Xx. Xxxx Xxxxxxx
Carbon copy to: Ameritech Mobile Communications, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxxx, XX 00000-0000
Attn: Legal (3H78)
To USWD: U.S. Wireless Data Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxx
or to such other address as either party shall designate by proper notice.
Notices will be deemed to have been received as of the earlier of the date of
actual receipt or, in case of notices sent via US mail, three (3) days after
mailing. A signed receipt shall be obtained where a notice is delivered in
person.
PUBLICITY
USWD shall not identify, either expressly or by implication, Ameritech or its
corporate Affiliates or use any of their trademarks, trade names, service marks,
other proprietary marks, or reference this Agreement in any advertising, press
releases, publicity matters or other promotional materials without the prior
written permission of Ameritech Mobile Communications, Inc.
RELATIONSHIP OF THE PARTIES
A. This Agreement is not intended to and does not constitute, or give
rise to, a joint venture, partnership, corporation, or other formal
business association or organization of any kind between the parties,
and the rights and the obligations of the parties shall be only those
expressly set forth in this Agreement. The parties shall perform under
this Agreement as independent contractors and not as a representative,
employee, agent, or partner of the other party, and this Agreement
shall not be construed as creating any relationship between Ameritech
and USWD's employees.
B. Except where the context would require a different meaning, all
references to a party or the parties include as applicable each of
their respective parent companies, subsidiaries, affiliates and its
and their directors, officers, shareholders, employees, agents,
successors, beneficiaries, permitted assigns, legal representatives,
general and limited partners, and subcontractors; provided, however,
that except as may be required by law, all obligations and liabilities
arising under this Agreement shall not be individual or personal, but
shall be borne by each party solely and only to the extent of its
legal capacity.
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REMEDIES
The rights and remedies herein provided shall be cumulative and shall be in
addition to any other remedies available at law or in equity.
SEVERABILITY
If any provisions of this Agreement shall be held invalid or unenforceable, such
provision shall be deemed deleted from this Agreement and replaced by a valid
and enforceable provision which so far as possible achieves the same economic
and other benefits for the parties as the severed provision was intended to
achieve, and the remaining provisions of this Agreement shall continue in full
force and effect.
The parties hereto have executed this Agreement through duly authorized
representatives and wishing to be legally bound hereto are so bound as of this
16th day of July, 1998.
U.S. WIRELESS DATA, INC. AMERITECH MOBILE
COMMUNICATIONS, INC.
By: /s/ Xxx Xxxxxxxxx By: /s/ Xxxx Xxxxxxx
---------------------- ------------------------
Name: Xxx Xxxxxxxxx Name: Xxxx Xxxxxxx
Title: President Title: General Manager
U.S. WIRELESS DATA(R) INC.
Delivering The New Standard In Transaction Processing
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EXHIBIT 1
AMERITECH CDPD SERVICE AREAS
Chicago, Illinois
Springfield, Illinois
St. Louis, Missouri
Cincinnati, Ohio
Dayton, Ohio
Columbus, Ohio
Detroit, Michigan
See specific Company Cellular Digital Packet Data radio system coverage maps.
Range and coverage on maps are estimated.
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