MOBILE DATA SERVICES BUSINESS AGREEMENT
THIS AGREEMENT (This "Agreement") is entered into as of the 15 day of
November 1996 by and between GTE Mobilnet Service Corp. on its behalf and on
behalf of its affiliates, GTE Mobilnet Incorporated and Contel Cellular
Incorporated ("GTE Mobilnet") and Compu-XXXX, Inc. ("Business Representative").
WHEREAS, GTE Mobilnet wishes to market Mobile Data Services to
Customers through a variety of direct and indirect distribution channels,
including business representatives; and
WHEREAS, Business Representative wishes to offer to Customers various
Applications which will use Mobile Data Services and intends to solicit
Customers to GTE Mobilnet for their Mobile Data Services needs;
NOW THEREFORE, in consideration of these premises, the mutual
covenants exchanged below and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto, wishing to be
legally bound, hereby agree as follows:
1. DEFINITIONS
Unless otherwise indicated, definitions of terms capitalized in this
Agreement are set forth in Exhibit A attached hereto.
2. ESTABLISHMENT OF RELATIONSHIP AND ACKNOWLEDGMENT
2.1 Appointment: GTE Mobilnet hereby authorizes Business Representative,
in conjunction with the marketing of the Application(s) described in
Exhibit B, to solicit and refer potential Customers located in the
Territory described in Exhibit B to GTE Mobilnet for the sale of
Mobile Data Services, subject only to the terms and conditions
contained herein. This Agreement shall not be construed to create a
joint venture, partnership, employment relatonship or franchise or any
other legal relationship between the parties. Neither party shall
share or be responsible for the debts and liabilities of the other
party, or have the authority to legally bind the other in any manner.
2.2 Business Representative's Acknowledgment of GTE Mobilnet's Alternative
Distribution Rights: GTE Mobilnet shall not be liable to Business
Representative in any manner if any sale, activation or order for
Mobile Data Services, wireless data applications, or other services or
products is obtained by GTE Mobilnet or by any third party, even
though Business Representative may have previously solicited the
Customer who purchased, activated or made such order. Business
Representative acknowledges that GTE Mobilnet
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will enter into different financial and other arrangements with
various participants in alternative distribution channels (including
direct sales, agents, Resellers and other Business Representatives),
and that GTE Mobilnet shall not be liable to Business Representative
in any manner if Business Representative's Compensation, joint
marketing activities, benefits, responsibilities, Territory, rates, or
other categories of Mobile Data Services hereunder are not as
favorable as those provided by GTE Mobilnet to others. Business
Representative also acknowledges that GTE Mobilnet may now or in the
future offer additional Wireless Services or applications which GTE
Mobilnet is not obligated to allow Business Representative to offer.
2.3 Valid Execution; Term: This Agreement, and any amendments hereto,
shall be effective only after its execution by an officer of both
Business Representative and GTE Mobilnet. The term of this Agreement
shall be two (2) years from the date hereof. It is expressly
understood and agreed that neither party has any right or expectation
of renewal or extension of this Agreement beyond the initial two (2)
year term.
2.4 Regulatory Matters: This Agreement shall at all times be subject to
local, state, and federal regulatory agencies having jurisdiction over
the provision of Mobile Date Services and any Applications therefor.
2.5 Mobile Data Services Rates: GTE Mobilnet shall determine the rates,
charges, and categories of Mobile Data Services to be presented to
Customers and set forth in the CSA. GTE Mobilnet, in its sole
discretion, may add, delete, suspend, or modify its rates, charges or
categories for Mobile Data Services, and determine whether such
changes apply to both existing or future Customers, or apply only in
certain geographic markets. GTE Mobilnet shall notify Business
Representative of each such modification which applies to any part of
the Territory assigned hereunder to Business Representative. Business
Representative shall not represent or agree that Customers will be
charged for GTE Mobilnet's Mobile Data Services at any rates other
than those determined by GTE Mobilnet.
2.6 No Guarantee of Profit: Business representative acknowledges that GTE
Mobilnet has made no representations or guarantees, express or
implied, regarding the profit that Business Representative will or
might make. Business Representative assumes all financial risks
associated with its activities under this Agreement.
2.7 Fee Paid to GTE Mobilnet: GTE Mobilnet is in the process of marketing,
communicating and selling Mobile Data Services to a wide range of
businesses, governmental entities and other accounts, directly and
through
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various channels of distribution. Therefore, if, during such process,
GTE Mobilnet is responsible for identifying and qualifying a
customer's intent to purchase Mobile Data Services and GTE Mobilnet
offers in writing to include Business Representative in a particular
business opportunity because of its application and/or services, as a
provider of products and/or services to such customer, then Business
Representative agrees to pay to GTE Mobilnet a sum equal to five
percent (5%) of one year's revenues received by Business
Representative, or such other amount as the parties may mutually agree
upon, for providing systems integration, software, hardware, and
implementation services that results in customer acceptance of the
system, less the total amount of Business Representative's documented
pass-through costs.
2.8 TEXAS ONLY: DISCLAIMER OF TEXAS DECEPTIVE TRADE PRACTICES - CONSUMER
PROTECTION ACT. AGENT SPECIFICALLY ACKNOWLEDGES AND AGREES THAT IT HAS
KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE
IT TO EVALUATE THE MERITS AND RISKS OF ITS TRANSACTION WITH GTE
MOBILNET, AND THAT IT IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING
POSITION WITH GTE MOBILNET. AGENT SPECIFICALLY ACKNOWLEDGES THAT IT IS
NOT A CONSUMER (AS DEFINED IN THE TEXAS DECEPTIVE TRADE PRACTICES -
CONSUMER PROTECTION ACT) AND THAT THE TEXAS DECEPTIVE TRADE PRACTICES
CONSUMER PROTECTION ACT DOES NOT APPLY TO THE AGENT. TO THE EXTENT
THAT THE AGENT IS A BUSINESS CONSUMER (AS DEFINED IN THE TEXAS
DECEPTIVE TRADE PRACTICES CONSUMER PROTECTION ACT) WITH ASSETS OF $5
MILLION OR MORE ACCORDING TO ITS MOST RECENT FINANCIAL STATEMENT
PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES,
THE AGENT EXPRESSLY DISCLAIMS AND WAIVES ALL PROVISIONS OF THE TEXAS
DECEPTIVE TRADE PRACTICES - CONSUMER PROTECTION ACT OTHER THAN SECTION
17.555.
3. ARBITRATION.
BUSINESS REPRESENTATIVE AND GTE MOBILNET HEREBY AGREE THAT ALL
DISPUTES ARISING OUR OF OR RELATING IN ANY WAY TO THIS AGREEMENT WHICH
CANNOT BE RESOLVED THROUGH GOOD FAITH NEGOTIATIONS TO THE MUTUAL
SATISFACTION OF BOTH PARTIES WITHIN THIRTY (30) CALENDAR DAYS (OR SUCH
LONGER PERIOD AS MAY BE MUTUALLY AGREED UPON BY THE PARTIES) AFTER THE
COMPLAINING PARTY HAS NOTIFIED THE OTHER PARTY OF THE
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COMPLAINT, SHALL BE FINALLY SETTLED BY BINDING ARBITRATION IN ATLANTA
BEFORE THE ATLANTA REGIONAL OFFICE OF THE AMERICAN ARBITRATION
ASSOCIATION BY THREE (3) ARBITRATORS IN ACCORDANCE WITH THE RULES OF
COMMERCIAL ARBITRATION OF THE AMERICAN ARBITRATION ASSOCIATION THEN IN
EFFECT AND THE ARBITRATORS' DECISION SHALL BE FINAL AND BINDING UPON
THE PARTIES. IN DECIDING ANY CLAIM, THE ARBITRATORS SHALL APPLY GEORGIA
LAW; PROVIDED, HOWEVER, THAT THE ARBITRATORS SHALL HAVE NO AUTHORITY TO
AWARD CONSEQUENTIAL DAMAGES OR PUNITIVE DAMAGES UNDER ANY
CIRCUMSTANCES.
4. BUSINESS REPRESENTATIVE RESPONSIBILITIES AND OBLIGATIONS
Business Representative agrees to the following responsibilities and
obligations:
4.1 Services Provided by Business Representative: Business
Representative shall provide the Sales Services and any
Implementation Services and Technical Support Services described
in Schedule 1 to Customers for Business Representative's
Applications and GTE Mobilnet's Mobile Data Services. Business
Representative shall be solely responsible and bear all liability
for its performance of such services. Business Representative
acknowledges that the purpose of the Agreement is the sale of
Mobile Data Services only.
4.2 Identification: Business Representative shall identify itself as
authorized by GTE Mobilnet to solicit potential Customers for GTE
Mobilnet. Such designation shall be specifically limited to a
form and style prescribed by GTE Mobilnet and shall automatically
cease with the termination or expiration of this Agreement.
4.3 Business Representative's Responsibility for Its Employees and
Personnel: Business Representative shall be responsible for
ensuring compliance with this Agreement by its employees and
personnel, whether permanent, temporary, contract or otherwise,
employed or otherwise engaged by Business Representative to
perform services under this Agreement. Business Representative
shall be liable to GTE Mobilnet for any damages suffered as a
result of non-compliance.
4.4 Business Representative's Agents: Business Representative shall
not have the right to employ, appoint, engage or otherwise use
Agent(s) in the performance of its obligations under this
Agreement, unless Business Representative receives the prior
written consent of GTE Mobilnet.
4.5 Public Statements or Press Releases: Business Representatives
agrees not to
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initiate any public relations activities related to GTE
Mobilnet's Mobile Date Services, including without limitation
news releases, news conferences, news briefings, or any other
type of function involving reporters, editors or news directors
of any news organizations, without prior written approval of GTE
Mobilnet. Further, Business Representative agrees to refer to GTE
Mobilnet all questions from news organizations related to GTE
Mobilnet or GTE Mobilnet's Mobile Data Services.
4.6 Trademarks and Related Matters: Business Representative is not
granted any rights in and is not authorized, licensed or
permitted to use the Marks of GTE Mobilnet or any of its
Affiliates except for the sole purpose of Business Representative
identifying itself as authorized to solicit and refer potential
Customers to GTE Mobilnet. In connection with this limited use,
GTE Mobilnet shall furnish the list of Marks that Business
Representative is permitted to use and the rules and regulations
pertaining to use of the Marks, with which Business
Representative agrees to comply. During the term of this
Agreement and at any time thereafter, Business Representative and
its owner(s) and Affiliates shall not use any identical or
confusingly similar xxxx or trade name, service xxxx, trademark,
advertising logo, insignia, symbols or decorative designs to
Marks or other items used by GTE Mobilnet. Business
Representative also agrees to return to GTE Mobilnet upon
termination of this Agreement or at GTE Mobilnet's earlier
request any advertising and marketing materials, forms, training
materials or other materials containing any GTE Xxxx or other
materials relating to GTE's Mobile Data Services.
4.7 Insurance: Business Representative shall at all times during the
term hereof, at Business Representative's sole expense, be
insured under a comprehensive liability insurance policy against
claims for bodily and personal injury, death and property damage
caused by or occurring in conjunction with the operation of
Business Representative's business. GTE Mobilnet shall be named
as an additional insured party on each policy. Such insurance
coverage shall be maintained under one or more policies of
insurance from a recognized insurance company qualified to do
business within the Territory, providing in the aggregate a
minimum liability protection of One Million Dollars ($1,000,000)
per occurrence for bodily and personal injury and death, subject
to such deductibles as GTE Mobilnet determines from time to time
to be appropriate. Each such insurance policy shall provide for
not less than thirty (30) days prior notice to all insured of any
modification, cancellation or non-renewal. Business
Representatives shall furnish proof satisfactory to GTE Mobilnet
that the insurance coverage required hereunder is in force.
5. GTE MOBILNET RESPONSIBILITIES AND OBLIGATIONS
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5.1 No Warranties: GTE MOBILNET MAKES NO WARRANTY, EITHER EXPRESS OR
IMPLIED, CONCERNING THE MOBILE DATA SERVICES, INCLUDING WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR USE OR PURPOSE. GTE Mobilnet shall in no event be
liable for direct, indirect, special, consequential or punitive
damages or for lost profits which are suffered or incurred by
Business Representative, Customers or any other persons who
utilize or rely upon Mobile Data Services and which are a result
of Mobile Data Services System downtime or isolated or systemic
failures of or defects affecting either such services or Business
Representative's Products and Services. GTE Mobilnet shall have
no liability for Applications related failures or defects, and
GTE Mobilnet's liability for failures or defects in the
performance of Mobile Data Services shall be limited to the
refund of payments received by GTE Mobilnet for the affected
services.
5.2 Customer: Upon approval and acceptance by GTE Mobilnet of the
required CSA or an order for Mobile Data Services otherwise
accepted by GTE Mobilnet, the person or entity ordering Mobile
Data Services shall become a Customer of GTE Mobilnet with
respect to such services. GTE Mobilnet shall provide Mobile Data
Services, subject to the provisions in the CSA, to such Customer
and shall be responsible for the billing and collection of all
charges for Mobile Data Services.
5.3 Compensation: GTE Mobilnet shall pay to Business Representative
Compensation in accordance with the terms of Schedule 2 attached
hereto, provided, however, that:
(a) GTE Mobilnet may, at its option, forgo all payments
of Compensation otherwise due during periods in which
Business Representative fails materially to provide
the services set forth in Schedule 1; and
(b) any restrictions on the payment of Compensation set
forth in this Agreement or in the Schedule, including
without limitation the deduction provisions obtained
in Section 8.2(b), 9.12 and Schedule 2, shall be
enforceable against any Compensation due or paid to
Business Representative.
5.4 Billing and Collections: GTE Mobilnet has the sole right and
responsibility for verifying credit information and for
billing of and collection from Customers or potential
Customers or any money or charges for Mobile Data Services
provided by GTE Mobilnet.
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5.5 Administration: GTE Mobilnet shall be responsible for
establishing the administrative procedure and guidelines for
processing Customer CSAs, and, if applicable, for procedures
for Implementation Services provided to Customers by
Business Representative.
5.6 Sales Support: As it deems appropriate, GTE Mobilnet may,
but is not obligated to, provide sales support to Business
Representative under this Agreement. That support may
include the following, some of which will be free and some
of which may, with prior notice, be charged to Business
Representative at cost to GTE Mobilnet: promotional
literature, sales brochures, sales and wireless data
equipment support, sales training, and training in
administrative procedures and system operating
characteristics.
6. DEFAULT
6.1 Default by GTE Mobilnet: GTE Mobilnet shall be in "Default"
of its obligations under this Agreement if GTE Mobilnet
materially breaches this Agreement and fails to cure such
breach within thirty (30) days after written notice of such
breach is received by GTE Mobilnet by certified mail.
6.2 Default by Business Representative: Each of the following
shall constitute a "Default" by Business Representative of
its obligations under this Agreement:
(a) Business Representative (or one or more of its owners,
employees or Affiliates) makes a material
misrepresentation or omission, whether verbal or
written, to induce GTE Mobilnet to enter into this
Agreement:
(b) Business Representative makes an assignment for the
benefit of creditors or files a voluntary petition
under Title 11 of the United States Code or under any
similar state insolvency laws or Business
Representative shall have an involuntary petition for
bankruptcy filed against it under Title 11 of the
United Sates Code and such involuntary petition is not
dismissed within thirty (30) days; or a trustee or
receiver is appointed to administer Business
Representative's business or assets;
(c) Business Representative, without the prior written
consent of GTE Mobilnet, violates the rates and/or
billing provisions of Section 2.5 or Section 5.4
hereof;
(d) Business Representative engages in conduct which GTE
Mobilnet
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reasonably believes might violate any federal or state
antitrust laws or other consumer protection laws; or
(e) Business Representative fails to comply with, or
breaches, any other provision or requirement of this
Agreement not specifically set forth in this Section
6.2, or any tariff relating to Mobile Data Services,
and, if such failure is capable of being cured, does
not cure such failure within 30 days after written
notice of such failure to comply is delivered to
Business Representative.
7. TERMINATION OF AGREEMENT
7.1 Termination by Business Representative. Upon Default by GTE
Mobilnet under Section 6.1 hereof, Business Representative may
give notice of Default by providing written notice to GTE
Mobilnet of such Default, and the 30-day cure period described in
Section 6.1 shall begin effective upon delivery of the notice of
Default to GTE Mobilnet by certified mail.
7.2 Termination by GTE Mobilnet:
(a) Regulatory and Contractual Requirements. GTE Mobilnet,
at its sole option, may terminate this Agreement upon
thirty (30) days written notice if:
(I) the authorization by the FCC or any other regulatory
authority to provide cellular telephone service is not
continued in substantially the same form and such
change, in GTE Mobilnet's sole discretion, impacts, in
a materially adverse manner, GTE Mobilnet's ability to
conduct its Mobile Data Services or cellular business;
or
(ii) Business Representative or an Affiliate
thereof is granted regulatory authority to
construct or operate Mobile Data Service or
any Wireless Services anywhere in the United
States.
(b) Default. GTE Mobilnet, at its sole option, may
terminate this Agreement effective upon delivery of
written notice to Business Representative of Default by
Business Representative under Section 6.2 hereof.
(c) Breach of Other Agreement. GTE Mobilnet, at its sole
option, may terminate this Agreement effective upon
delivery of written notice to
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Business Representative if Business Representative
(or any Affiliate thereof) breaches its obligations
under any other agreement with GTE Mobilnet (or any
Affiliate thereof), and such agreement is terminated.
7.3 Termination by Mutual Agreement: This Agreement may be terminated
by mutual written agreement of the parties.
8. REMEDIES
8.1 Remedies of Business Representative: Business Representative's
sole remedy for Default by GTE Mobilnet under this Agreement
shall be termination of this Agreement pursuant to Section 7.1.
Specifically, except for the indemnification obligations set
forth in Section 9.4, GTE Mobilnet shall have no liability for
any lost profits or consequential damages even if advised of the
possibility of such damages. Notwithstanding the foregoing, GTE
Mobilnet shall pay to Business Representative any Compensation
owing to Business Representative, subject to all deduction and
off-set provisions in this Agreement and any other amounts owing
to GTE Mobilnet under Section 8.2 hereof.
8.2 Remedies of GTE Mobilnet: GTE Mobilnet, in its discretion, shall
be entitled to exercise one or more of the following remedies for
Default by Business Representative under this Agreement:
(a) Terminate this Agreement pursuant to Section 7.2 hereof;
(b) Deduct from Business Representative's Compensation all
damages and costs incurred by GTE Mobilnet as a result of
Business Representative's Default;
(c) Any other remedy available to GTE Mobilnet at law or in
equity; provided however, that except for the
indemnification obligations set forth in Section 9.4,
Business Representative shall have no liability for any lost
profits or consequential damages even if advised of the
possibility of such damages.
GTE Mobilnet may simultaneously, in its sole discretion,
exercise one or more of the remedies to which it is entitled
hereunder. GTE Mobilnet shall not be deemed to have waived
any right, remedy, provision or option under this Agreement,
including the right to demand exact compliance with the
terms of this Agreement, by virtue of exercising, or not
exercising, any of its remedies hereunder. Failure by GTE
Mobilnet to exercise one or more of its remedies on
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one or more occasions shall not prohibit the exercise of
such remedies subsequently.
9. GENERAL PROVISIONS
9.1 Business Representative Representations: Business Representative
represents and warrants that the execution and performance of
this Agreement will not conflict with or result in the breach of
any other agreement or contract to which Business Representative
is a party. Business Representative further warrants that it is
not subject to any limitation or restriction which would
prohibit, restrict or impede Business Representative's
performance hereunder.
9.2 DISCLAIMER OF WARRANTIES: GTE MOBILNET MAKES NO WARRANTY, EITHER
EXPRESS OR IMPLIED, CONCERNING THE APPLICATIONS, INCLUDING
BUSINESS REPRESENTATIVE'S PRODUCTS AND SERVICES, INCLUDING
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR USE OR PURPOSE OR OF GOOD AND WORKMANLIKE MANNER.
GTE MOBILNET MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED,
CONCERNING THE PERFORMANCE OF THE APPLICATIONS, INCLUDING
BUSINESS REPRESENTATIVE'S PRODUCTS AND SERVICES, ON THE MOBILE
DATA SERVICES NETWORK.
9.3 Named Accounts: Business Representative acknowledges that GTE
Mobilnet, as a direct seller of Mobile Data Services, will be
soliciting Customers it considers to be named Accounts. If
Business Representative is currently a GTE Mobilnet Agent for
distribution of voice services pursuant to an agreement (a "Voice
Agent Agreement") between GTE Mobilnet and Business
Representative, then Business Representative agrees to be bound
by the terms of the Voice Agent Agreement as to Named Accounts.
If Business Representative is not subject to a Voice Agent
Agreement, then the following procedure shall apply as to Named
Accounts: GTE Mobilnet shall notify Business Representative of
any list of its Named Accounts, by name or category, which may be
published by GTE Mobilnet from time to time. Should Business
Representative solicit any of the Named Accounts for the purpose
of selling Wireless Services, Business Representative agrees that
it will give the GTE Mobilnet contract administrator five
business days prior notice of such solicitation. Any Named
Account list or Customer Information provided under the terms of
this section is highly confidential and is subject to Section 9.7
below.
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9.4 Indemnification: Each party agrees to indemnify and hold the
other harmless from any and all liability, loss, claim, damage,
cost or expense (including attorney's fees and court costs)
arising out of claims made by third parties against the other, as
the result of (a) any material failure by the party so
indemnifying to perform its obligations hereunder, (b) an alleged
theft or infringement by the indemnifying party of a third
party's patent, copyright, trade secret, or other intellectual
property rights, or (c) a failure of or defect in a Product or
Service provided by Business Representative (from which claim
Business Representative (from which claim Business Representative
shall indemnify GTE Mobilnet). The obligations of the parties
under this Section shall survive the termination or expiration of
this Agreement.
9.5 Notices: Except as otherwise provided in this Agreement, all
notices required or permitted to be given hereunder shall be in
writing and shall be valid and sufficient if dispatched by
facsimile or by certified or registered mail, postage prepaid,
return receipt requested, in any post office in the United
States, addressed as follows:
If to GTE Mobilnet:
GTE Mobilnet Service Corp.
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxx Xxxxxx, Esq., Business
Development/Contracts Counsel
with a copy to:
Xxx Xxxxxx, Director of Data Sales
at the same address
If Business Representative:
Compu-XXXX, Inc.
(Authorized Representative)
000 Xxxx Xxxx Xxxxxx
(Xxxxxxx)
Xxxx Xxxxx, XX 00000
Xxxx X. Xxxxxxxx
(Contact name)
(000) 000-0000
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(Telephone)
(000) 000-0000
(Facsimile)
Either party hereto may change its address by providing notice of such address
changes to the other party in the manner set forth above. Notices given as
herein provided shall be considered to have been received five (5) days after
mailing thereof, or when actually received, whichever occurs first.
9.6 Assignment or Transfer of Interest: Neither party may assign or
transfer this Agreement without the written consent of the other
party, except that GTE Mobilnet may assign this Agreement to any
of its Affiliates. In the event of a change in ownership or
control of a party, the other party may terminate this Agreement
on ten (10) days notice.
9.7 Confidential and Proprietary Information: Any disclosure of
Confidential Information between the parties during the term of
this Agreement shall be made pursuant to the terms set forth in
Exhibit C, attached hereto and by this reference made a part
hereof. Business Representative specifically agrees that all
Customer Information is the property of GTE Mobilnet and is
highly competitive, confidential and proprietary information.
Notwithstanding breach of this Agreement on the part of either
party, this provision shall survive the expiration, cancellation
or termination of this Agreement.
9.8 No Solicitation: During the term of this Agreement and for one
(1) year after its termination (whether voluntary or
involuntary), Agent will not solicit any Customer that Agent
knows to be a Customer of GTE Mobilnet to use Wireless Services
provided by another carrier if the result of the Customer's use
of such other Wireless Services would be to curtail or cancel its
business with GTE Mobilnet. Business Representative shall not be
bound by the foregoing sentence if Business Representative can
demonstrate through clear and convincing evidence that such
Customer, through no solicitation, influence, inducement,
referral or participation on the part of Business Representative,
independently decided to obtain Mobile Data Service or
competitive Wireless Services from another provider or Reseller
of such Services.
9.9 Survival of Obligations: Expiration or termination of this
Agreement for any cause shall not release either party from any
liability which at the time of termination or expiration has
already accrued to the other party or which thereafter may accrue
in respect to any act or omission prior to termination. All
obligations of either party which expressly or by their nature
survive the
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expiration or termination of this Agreement, including without
limitation Sections 4.3, 4.4, 4.6, 5.1, 8.1, 8.2, 9.8, and 9.9,
shall continue in full force and effect notwithstanding its
expiration or termination, until they are satisfied in full or by
their nature expire.
9.10 Binding Effect: This Agreement, and any amendments hereto, shall
be binding upon the parties hereto, their respective executors,
administrators, heirs, assigns, and successors in interest.
9.11 Notification of Actions Involving Business Representative:
Business Representative shall notify GTE Mobilnet in writing
within five (5) days of the commencement of any material action,
suit or proceeding or of the issuance of any subpoena, civil
investigative demand, order, writ, injunction, award or decree of
any court, grand jury, agency or other governmental
instrumentality relating to the Mobile Data Services or
Customer's obtaining such Services involving Business
Representative, or any business conducted by Business
Representative or any of its employees.
9.12 Business Representative Off-Sets: Business Representative agrees
that GTE Mobilnet may, in its discretion, deduct from any
Compensation or any other amounts owed Business Representative an
amount equal to any debt owed by Business Representative to GTE
Mobilnet or its Affiliates, and pay these amounts directly to GTE
Mobilnet or its Affiliates for the account of Business
Representative.
9.13 Waiver: Neither Business Representative nor GTE Mobilnet shall be
deemed to have waived any right or option under this Agreement,
including the right to demand exact compliance or to declare a
breach of the Agreement, by virtue of any contrary custom or
practice of the parties. Failure of Business Representative or
GTE Mobilnet to enforce a provision of this Agreement on one or
more occasions shall not prohibit the enforcement of that same
provision on a subsequent occasion.
9.14 Severability and Substitution of Valid Provisions: Each provision
of this Agreement shall be considered severable and if a
provision is for any reason held to be invalid, including without
limitation Section 9.8 and 9.9, all remaining provisions shall be
enforceable. If any provision of this Agreement is held to impose
a restriction upon Business Representative which is unenforceable
in scope but could be made enforceable by limiting the scope,
Business Representative and GTE Mobilnet agree to a modification
of the invalid or unenforceable provision to the extent required
by enforceability.
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9.15 Execution: This Agreement may be executed in counterparts, each
of which shall be deemed an original.
9.16 Effects of Headings: Headings to articles and paragraphs of this
Agreement are for reference only, do not form a part of this
Agreement and shall not affect the interpretation hereof.
9.17 Applicable Law: The validity, construction and performance of
this Agreement shall be governed by and interpreted in accordance
with the laws of the State of Georgia.
9.18 Entire Agreement; Amendments: Both GTE Mobilnet and Business
Representative have read this Agreement and understand and accept
the terms, conditions to this Agreement are expressly
incorporated herein by this reference and the term "Agreement"
shall include all Exhibits and Schedules attached hereto. Neither
party shall be bound by any representations made by any of its
officers, employees or Business Representatives which are
contrary to the terms of this Agreement. This Agreement,
including any Schedules, Exhibits or other attachments, sets
forth the entire understanding between the parties and supersedes
all previous agreements, arrangements and understanding between
the parties, whether verbal or written. Except for those Sections
which expressly authorize GTE Mobilnet to make unilateral changes
in certain terms and conditions, this Agreement may not be
amended except in writing signed by authorized representatives of
both parties unless otherwise provided in this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
BUSINESS REPRESENTATIVE:
By: /s/ Xxxx Xxxxxxxx
[Authorized Company Representative]
Print name: Xxxx Xxxxxxxx
Title: Executive Vice President
Date: November 15, 1996
GTE MOBILNET SERVICE CORP.:
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By: /s/ Xxxxxx X. Xxxxxxx
[Authorized Company Representative]
Print Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President -Operations
Date: December 17, 1996
By: /s/ Xxxxx X. Xxxxxx
[Authorized Company Representative]
Print Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
Date: December 18, 1996
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EXHIBIT A
DEFINITIONS
Agent: A person, corporation or any other entity or organization
which is employed, appointed, engaged or otherwise used by
Business Representative, as an agent for the purpose of
referring Customers for activation of Mobile data Services
with GTE Mobilnet or to perform any other obligations under
this Agreement.
Agreement: This Agreement, including all exhibits, schedules and
amendments hereto.
Affiliates: A person, association, partnership, corporation or
joint-stock company or trust that directly or indirectly,
through one or more intermediaries, controls, is controlled
by or is under common control with, another person or
entity. Control shall be defined as (i) ownership of a
majority of the voting power of all classes of voting stock;
(ii) ownership of a majority of the beneficial interests in
income and capital of an entity other than a corporation;
and (iii) ownership of a general partnership interest in a
limited partnership.
Applications: The value-added applications for Mobile Data
Services described in ExhibitB, which include Business
Representative's Products and Services, and may include
other wireless data devices, hardware, software or other
products or services which utilize or when commercially
available will utilize any form of Mobile Data Services, or
systems integration services related thereto, and in
conjunction with which Business Representative is authorized
pursuant to the terms of this Agreement to offer GTE
Mobilnet's Mobile Data Services to actual or potential
Customers.
Compensation:Compensation paid to Business Representative by GTE
Mobilnet for Business Representative's services under this
Agreement, as set forth in Schedule 2 hereto.
Customer: The person, organization, corporation or other entity
which purchases Mobile Data Services from GTE Mobilnet and
is responsible for the repayment of charges to GTE Mobilnet
for such Mobile Data Services.
Customer Information: Any and all information about actual or
potential customers obtained by Business Representative in
connection with its activities on behalf of GTE Mobilnet,
including but not limited to, lists of actual or potential
Customers provided by GTE Mobilnet, CSAs and terms offered
or agreed to by GTE Mobilnet and the names, addresses,
telephone numbers, and network addresses (including, but not
limited to, Network Entity Identifiers and
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Internet Protocol Addresses) of Customers for GTE Mobilnet's
Mobile Data Services.
CSA: Customer Service Agreement between GTE Mobilnet and Customer
which sets forth the terms for the provisions of GTE
Mobilnet's Mobil Data Services to Customer, as such
agreement is issued by GTE Mobilnet from time to time.
Implementation Services: The customization of Applications, and
initial administrative, training and technical support, if
any, which Business Representative is required by Schedule 1
to provide to Customers in connection with their adoption
and implementation of Applications and GTE Mobilnet's Mobile
Data Services.
Marks: Any and all trademarks, service marks, trade names,
insignia, symbols, decorative designs, or other patented,
restricted or licensed marks which GTE Mobilnet or its
Affiliates own or are licensed or sublicensed to use in
connection with Mobile Data Services, wireless data
equipment relating thereto or in any other manner.
Mobile Data Services: The data-specific circuit switched service
and cellular digital packet data services offered and
marketed by GTE Mobilnet from time to time as GTE Mobilnet's
Mobile Data Services offering, which may be provided by GTE
Mobilnet directly or indirectly through other carriers. When
the context of this Agreement so indicates, Mobile Data
Services refers to data transmission services competitive to
any of GTE Mobilnet's Mobile Data Services.
Named Account: An account designated or considered by GTE
Mobilnet to be a Named Account in accordance with Section
9.3 of the Agreement. The list of Named Accounts provided by
GTE Mobilnet may be modified or updated by GTE Mobilnet at
its sole discretion from time to time.
Net Monthly Revenues: GTE Mobilnet's revenues, net of all
credits, adjustments and one-time charges, excluding port
charges and activation fees, during a monthly billing cycle
for Mobile Data Services provided to Customers pursuant to
CSA's which were properly completed and submitted by
Business Representative and thereafter approved and accepted
by GTE Mobilnet.
Products and Services: Data compatible hardware, software and
professional services offered by Business Representative,
either directly or indirectly, which may be integrated into
an Application which contains the hardware, software and
professional services of third parties.
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SalesServices: The obligations of Business Representative to
market GTE Mobile Data Services in conjunction with the
marketing and sale of Applications, as set forth in Schedule
1.
Technical Support Services: The first line customer services and
technical support, if any, which Business Representative is
required by Schedule 1 to provide as long as Compensation is
being paid.
Territory: The geographic areas defined in Exhibit B, as modified
from time to time by GTE Mobilnet with written notice to
Business Representative, in which the Business
Representative is authorized pursuant to the terms of this
Agreement to solicit Customers for Mobile Data Services in
conjunction with the marketing of Business Representative's
Applications.
Wireless Services: Services, other than Mobile Data Services,
which provide or will provide wireless voice, data or paging
communications, including without limitation other
Commercial Mobile Radio Services ("CMRS"), Specialized
Mobile Radio ("SMR"), Enhanced Specialized Mobile Radio
("EMSR") and 1.8 GHz frequency communications.
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EXHIBIT C
TERMS FOR THE DISCLOSURE OF CONFIDENTIAL INFORMATION
1. Confidential Information, as used herein, shall mean written or
documentary information which (i) relates to the above identified subject
matter, (ii) is received by one party from the other party, and (iii) is marked
"Confidential" or "Proprietary Confidential", or bears a marking of like import,
or which one party states in writing at the time of transmittal to or receipt by
the other party is to be considered confidential. Orally disclosed information
identified as confidential at the time of disclosures shall be considered
confidential if, within twenty (20) days after the first oral disclosure
thereof, a party confirms in a writing delivered to the receiving party the
confidential nature of such orally disclosed information. Such writing shall be
sufficiently specific to enable the receiving party to identify the information
considered to be confidential.
2. The term "Trade Secrets" as used in the Agreements and this Exhibit
C shall mean Confidential Information that:
(i) derives economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or
use; and
(ii) is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy.
3. The terms "Confidential Information" and "Trade Secrets" do not
include, and the receiving party shall have no obligation with respect to
information which:
(i) is already known to the receiving party as evidenced by prior
documentation or other tangible embodiments of such information
thereof; or
(ii) is or becomes publicly known through no wrongful act of the receiving
party; or
(iii)is rightfully received by the receiving party from a third party
without restriction and without breach of this or any other Agreement;
or
(iv) is approved for release by written authorization of the conveying
party.
4. The parties acknowledge and agree that the parties may obtain and
have access to Confidential Information and Trade Secrets of the other party and
that the misappropriation, unauthorized use or disclosure of such Confidential
Information or Trade Secrets would cause irreparable harm to the parties hereto.
The parties agree to use the same degree of care to avoid and prevent disclosure
of any party's Confidential Information and Trade Secrets as each party uses to
prevent disclosure of its own Confidential Information
and Trade Secrets.
5. With respect to any Confidential Information, each party agrees that
for a term of five (5) years following the disclosure of Confidential
Information pursuant to the Agreement, they shall not directly or indirectly
disclose any Confidential Information that the parties may have or acquire in
connection with the Agreement except as authorized by the party to whom the
Confidential Information belongs.
6. With respect to any Trade Secrets, each party agrees not to use for
any purpose whatsoever or disclose the Trade Secrets or any party at any time
hereafter except as necessary for the performance of its duties under the
Agreement or until such Trade Secrets become generally available to the publics
by independent discovery or development or publication. The rights of the
parties to protection of their Trade Secrets in the Agreement are in addition to
the rights which the parties have under common or statutory law for the
protection of Trade Secrets.
7. The parties to the Agreement agree to disclose Confidential
Information or Trade Secrets only to employees with a need to know.
8. The parties to the Agreement agree that all Confidential Information
or Trade Secrets are the property of the party supplying it and agree promptly
to return to the party supplying it upon demand, any Confidential Information or
Trade Secrets and copies thereof, furnished under the Agreement which is either
received in or reduced to material form.
9. Nothing contained in the Agreement shall be construed as (i)
requiring a party to disclose, or to accept, any particular information, or (ii)
granting to the receiving party a license, either express or implied, under any
patent, copyright, trade secret, or other intellectual property rights now or
hereafter owned, obtained, or licensable by the other party.
10. The provisions of the Agreement and this Exhibit C concerning
nondisclosure and use of Confidential Information and Trade Secrets shall
survive the expiration or termination of this Agreement.
SCHEDULE 1
BUSINESS REPRESENTATIVE SERVICES
I. Sales Services
A. Business Representative shall provide Sales Services in accordance with
the following provisions:
1. Prospective Customers: Business Representatives shall be
responsible for generating leads for potential customers, qualifying
customer interests and providing a statement of work or a sales proposal
from potential customers for Mobile Data Services. If GTE Mobilnet
identifies and qualifies a customer's intent to purchase wireless data
services and Business Representative accepts GTE Mobilnet's offer to then
market its application and/or services to such customer, then Business
Representative shall compensate GTE Mobilnet therefor pursuant to the
provisions of Section 2.7 hereof.
2. Product Development and Marketing: Business Representative shall
assume the entire responsibility for development and marketing of the full
range of Applications, and Business Representative specifically
acknowledges that GTE Mobilnet has no responsible or liability for the
development, marketing or performance of Applications. Business
Representative shall use reasonable efforts to promote the use of GTE
Mobilnet's Mobile Data Services in conjunction with the Applications.
Either GTE Mobilnet or Business Representative may request the other to
engage in joint marketing activities, which requests will be addressed on a
case by case basis.
3. Customer Service Agreement: GTE Mobilnet shall issue from time to
time CSAs for particular customers or categories of customers, together
with any applicable procedures for Business Representative to follow in
pursuing the execution of the CSA by GTE Mobilnet and the Customer. GTE
Mobilnet may change the CSA and related procedures at any time in its sole
discretion. When properly completed and signed by the Customer, the CSA
shall constitute an offer by the Customer to purchase from GTE Mobilnet the
Mobile Data Services set forth therein. Upon approval and acceptance by GTE
Mobilnet of each CSA from a Customer referred by Business Representative,
the CSA shall constitute a binding contract between GTE Mobilnet and the
Customer. Business Representative shall have no rights or obligations under
the CSA and the Customer thereafter shall be a Customer of GTE Mobilnet.
Absence of a properly completed, signed and approved CSA will disqualify
Business Representative for any Compensation for such Customer.
4. Advertising and Promotions: GTE Mobilnet shall from time to time
establish standards for all advertising, signage, promotional and Customer
training materials
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used or distributed by Business Representative which relate to GTE
Mobilnet's Mobile Data Services. Such standards will be limited to factual
matters pertaining to GTE Mobilnet's Mobile Data Services, the overall use
of the GTE Mobilnet Marks and the specifics of described promotions.
Business Representative is required in its use of such materials to comply
with any such standards established by GTE Mobilnet. BUSINESS
REPRESENTATIVE SHALL NOT USE ANY ADVERTISING OR MARKETING MATERIALS
RELATING TO GTE MOBILNET'S MOBILE DATA SERVICES, REGARDLESS OF WHETHER SUCH
MATERIALS MAKE USE OF THE MARKS, WITHOUT THE PRIOR WRITTEN APPROVAL OF GTE
MOBILNET. GTE Mobilnet may from time to time offer promotions in the
Territory, in which GTE Mobilnet may allow Business Representative to
participate on terms specified by GTE Mobilnet. GTE Mobilnet is not,
however, obligated to offer such promotions to Business Representative and
Business Representative shall not be obligated to participate in such
promotions.
II. Implementation Services
A. Business Representative shall provide Implementation Services in
accordance with the following provisions.
1. Sale of Lease of Applications. For its own account, Business
Representative may sell, license and/or lease Applications to be used by
Customers of GTE Mobilnet's Mobile Data Services. IT IS EXPRESSLY
UNDERSTOOD THAT GTE MOBILNET IS IN NO WAY OBLIGATED TO DISTRIBUTE ANY
APPLICATIONS TO BUSINESS REPRESENTATIVE FOR RESALE. All sales licenses
and/or leases of Applications shall be made by or on behalf of Business
Representative for its own account, and not as Business Representative for,
or for the account of, GTE Mobilnet. Business Representative shall
establish sale process, license fees, and lease charges or other fees for
Applications, and GTE Mobilnet shall have no control over such prices,
charges and fees. With respect to the sale, license and/or lease of
Applications, Customers shall be the customers of Business Representative,
and GTE Mobilnet shall have no responsibility or liability to Business
Representative or Customers therefor.
2. Customization and Implementation. Business Representative shall
provide, as appropriate, customization and integration of Applications, as
well as administrative, training and technical support, to assist the
Customer in the modification, delivery, programming and initial operation
of the Applications and the use of GTE Mobilnet's Mobile Data Services.
Business Representative shall act as the interface between GTE Mobilnet and
the Customer with respect to the Mobile Data Services during such
implementation phase. Any charges by the Business Representative for such
Implementation Services shall be determined by Business Representative and
the Customer. GTE Mobilnet shall be obligated to pay Business
Representative only the Compensation set forth in Schedule 2.
III. Technical Support Services
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A. Business Representative shall provide Technical Support Services in
accordance with the following provisions.
1. First Line Customer Services: Business Representative agrees to
provide all first line Customer services, including a technical help desk
capable of responding to technical inquiries regarding Applications and GTE
Mobilnet's Mobile Data Services. Business Representative agrees to refer
promptly to GTE Mobilnet all Customer service inquiries or technical
problems which relate to GTE Mobilnet's Mobile Data Services and which
cannot be solved by Business Representative's Technical Support Services
alone. Business Representative shall not call, or refer Customers to call,
GTE Mobilnet or GTE Mobilnet's technical help desk for problems which
should have been solved by Business Representative's Technical Support
Services.
2. Ongoing Technical Support. The Technical Support Services shall be
provided by Business Representative to Customers during the term of this
Agreement. Any charges by the Business Representative for such Technical
Support Services shall be determined by Business Representative and the
Customer. GTE Mobilnet shall be obligated to pay Business Representative
only the Compensation set forth in Schedule 2. GTE Mobilnet shall continue
to pay Business Representative the Compensation set forth in Schedule 2 for
a period of four (4) years following termination of this Agreement (the
"Post- Termination Period") in the event Business Representative continues
to provide the Technical Support Services during such period as GTE
Mobilnet reasonably determines. This Schedule 2 shall survive for the
period following termination of this Agreement that Business Representative
provides Technical Support Services, as set forth herein.
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SCHEDULE 2
BUSINESS REPRESENTATIVE COMPENSATION
A. GTE Mobilnet agrees to pay to Business Representative, and Business
Representative agrees to accept, Compensation subject to the terms and
conditions contained in the Agreement and this Schedule 2. Compensation
shall be paid monthly, one month in arrears.
B. GTE Mobilnet may make deductions from Business Representative's
Compensation pursuant to Sections 8.2(b) and 9.13 of the Agreement, and as
otherwise set forth in the Agreement and this Schedule 2. In addition, GTE
Mobilnet will deduct from future Compensation any amounts improperly paid
to Business Representative which are not actually due and payable. Business
Representative shall be responsible for reimbursing GTE Mobilnet for any
improperly paid Compensation if: (i) the next payable amount of
Compensation is insufficient to cover the improper payment; or (ii) this
Agreement expires or is terminated.
C. In any instance in which more than one Business Representative
authorized to represent GTE Mobilnet is involved in a Customer sale, only
the Business Representative that is responsible for the Customer's
Implementation Services and Technical Support (as set forth in Schedule 1
above) is eligible for Compensation from GTE Mobilnet for the account
resulting from such sale. For any Customer sale that is solely for
circuit-switched services and that involves GTE Mobilnet Representative,
the Business Representative will not be compensated hereunder.
D. Business Representative shall notify Mobilnet within sixty (60)
days of receiving a Compensation payment of any discrepancies which
Business Representative believes have occurred during a Compensation
period. Subject to the deduction provisions herein, payment will be deemed
correct if GTE Mobilnet does not receive notification of any discrepancy
within such sixty (60) days.
E. Adjustment of the length of the Compensation period may be
necessary from time to time as a result of circumstances unknown to either
party of this Agreement at the time of Compensation period was originally
set, provided however, that any such change shall apply only to Customers
activated after the date thereof.
F. GTE Mobilnet shall pay, and Business Representative shall accept,
Compensation as set forth below:
(1) Business Representative shall earn Compensation in the form
of a monthly Customer Account Management Fee ("CAM Fee") based upon
the Net Monthly Revenues
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of GTE Mobilnet for Mobile Data Services provided to Customers
pursuant to CSAs which were properly completed and submitted by
Business Representative and thereafter approved and accepted by GTE
Mobilnet. Business Representative shall earn a monthly CAM Fee equal
to six percent (6%) of the Net Monthly Revenues.
(2) Subject to Section IIIA.2 of Schedule 1, GTE Mobilnet's
obligation to pay Compensation, including CAM Fees, to Business
Representative shall cease when the CAM Fee (a pro-rated portion
thereof based on business days in the month), less any deductions or
setoffs allowed under this Agreement or by law, is paid for the Net
Monthly Revenues in the month in which the Agreement expired or was
terminated.
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