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