EXHIBIT 10.12
PAGENET
PAGING NETWORK OF ATLANTA, INC.
SALES AND DISTRIBUTION AGREEMENT
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This Agreement, made and entered into this 21 day of May, 1996 by and
between Paging Network of Atlanta, Inc., with its principal place of business at
0000 Xxxxx Xxxx Xxxxx 000 Xxxxxxx, XX. 00000 ("PageNet") and Satellink Paging
with its principal place of business at _______________________ ("Reseller").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, PageNet has been authorized by the Federal Communications
Commission ("FCC") to provide one-way paging services, including tone-only,
digital display and alphanumeric paging services, in part or all of the areas
served by the 404, 770, 706, 912, 803 telephone areas codes (the "Territory");
and
WHEREAS, Reseller desires to purchase paging services from PageNet on a
nonexclusive basis in accordance with the terms of this Agreement for the
purpose of marketing and reselling such services to members of the public for
use in the Territory; and
WHEREAS, PageNet desires to sell paging services to Reseller for such
resale purposes in accordance with the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
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As used in this Agreement, the following terms shall have the following
meanings:
1.1 "Affiliate" of a party shall mean the entity that controls, is
controlled by or is under common control with such party.
1.2 "Agreement" shall mean this Sales and Distribution Agreement, and
Exhibit A attached hereto.
1.3 "Basic Services" shall have the meaning set forth in Paragraph 2.01
1.4 "Basic Service Rate" shall have the meaning set forth in Paragraph
6.01.
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1.5 "End Users" shall mean individuals or entities that purchase paging
services for the use for themselves or for their employees. End User shall also
include agents or subcontractors of Reseller who obtain paging services from
Reseller and/or PageNet and themselves market paging services. Under no
circumstances shall "End Users" include entities or individuals (or affiliates
thereof) licensed by the FCC to provide facilities based telecommunications
services, unless PageNet's written approval shall have first been obtained.
1.6 "FCC" shall have the meaning set forth in the first Whereas clause.
1.7 "Optional Services" shall have the meaning set forth in Paragraph
2.02.
1.8 "PageNet" shall have the meaning set forth in the preamble to this
Agreement.
1.9 "Paging Equipment" shall have the meaning set forth in Paragraph 2.04.
1.10 "Paging Services" shall mean the Basic Services and the Optional
Services.
1.11 "Reseller" shall have the meaning set forth in the preamble to this
Agreement.
1.12 "Term" shall have the meaning set forth in Article IV.
1.13 "Territory" shall have the meaning set forth in the first Whereas
clause.
ARTICLE II
PROVISION OF SERVICE
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2.01 Basic Services. Subject to the terms of this Agreement, PageNet shall
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provide to Reseller as available in the Territory one-way tone-only, digital
display, and/or alphanumeric paging services ("Basic Services") described in
Exhibit A. Such Basic Services shall be provided on frequencies determined by
PageNet in its sole discretion, for marketing and resale by Reseller to End
Users in the Territory. PageNet shall have no obligation to provide Reseller
with new or different services other than those services which are available for
the Reseller market, except by a written amendment to Exhibit A, which amendment
shall have been approved by both PageNet and Reseller.
2.02 Optional Services. In conjunction with the Basic Services described in
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Paragraph 2.01, PageNet shall provide to Reseller where available such optional
services set forth in Exhibit A hereto ("Optional Services") as shall be
requested from time to time by Reseller.
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2.03 Non-Exclusivity. The Paging Services provided hereunder shall be
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provided to Reseller on a nonexclusive basis, and PageNet and its Affiliates
shall have the right (a) to provide Basic Services and Optional Services to
other entities for resale to End Users in the Territory and (b) to market and
sell such Paging Services, directly or indirectly, to End Users in the
Territory, including customers of Reseller. Nothing in this Agreement shall be
construed to require PageNet or its Affiliates to provide Paging Services to
Reseller for use or resale outside of the Territory.
2.04 Paging Equipment. Reseller shall be responsible for the provision, and
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the maintenance and repair, of paging receivers and accessory equipment ("Paging
Equipment") to all End Users served by Reseller. Such Paging Equipment shall be
compatible with PageNet's existing and future paging system operations. PageNet
shall have the right to disapprove the use of any Paging Equipment that does not
meet its standards of compatibility, which may include the requirement that all
Paging Equipment be capable of operating at the speed and in the format as
defined by PageNet, in its sole discretion. Although PageNet may, in its sole
discretion, provide paging receivers and accessory equipment to the Reseller,
PageNet undertakes herein no obligations to do so. Any provision of such
equipment shall be by separate agreement.
ARTICLE III
OBLIGATIONS OF RESELLER
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Throughout the term of this Agreement, Reseller shall market and provide
the Paging Services described in Article II to End Users in the Territory in the
following manner.
3.01 Marketing. Reseller, at its own expense, shall use reasonable efforts
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to publicize the availability of and to promote and market the Paging Services
to End Users in the Territory. If advertising and promotional materials for the
Paging Services state that the services are made available through arrangements
with PageNet, such materials shall be presented to PageNet in advance for its
approval, which approval shall not be withheld unreasonably. Any material to
which PageNet does not raise objections within thirty (30) days of its receipt
by PageNet shall be deemed to be approved.
3.02 Level of Services. Reseller shall provide Basic Services and Optional
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Services to End Users on a prompt, courteous, and efficient basis and shall deal
with End Users honestly and fairly. Reseller shall refrain from any statement,
acts or omissions that would tend to discredit or reflect adversely upon the
reputation of, or the quality of Paging Services provided by, Reseller, PageNet,
or any other entity providing Paging Services in connection with PageNet.
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3.03 Paging Equipment. With respect to End Users served by Reseller,
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Reseller shall furnish and maintain, or caused to be furnished and maintained,
Paging Equipment in compliance with the terms of this Agreement and all
applicable governmental requirements and standards.
3.04 End User Fees. Charges to End Users for equipment furnished by
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Reseller shall be as determined by Reseller. Except as otherwise required by
Federal or State regulation, the fees for the Paging Services provided by
Reseller to End Users shall also be established by Reseller. Reseller shall be
responsible for billing and collecting such fees and shall bear the collection
risk related thereto.
ARTICLE IV
TERM
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The initial term of this Agreement shall commence on the date hereof and
shall continue until the third (3rd) anniversary of the date hereof. The initial
term shall be extended automatically for successive one (1) year terms unless
either party gives written notice of its intent not to so extend more than
ninety (90) days prior to the end of the initial term or any extension thereof.
The initial three (3) year term of this Agreement, plus any extensions, shall be
the "Term" of this Agreement.
ARTICLE V
PROVISION OF PAGING NUMBERS
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5.01 Provision. Effective as of the date hereof, and provided Reseller is
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not in arrears in amounts due PageNet, PageNet will provide to Reseller
telephone numbers as available within the Territory which are to be used by
Reseller to provide paging Services to End Users in connection with Paging
Equipment supplied by Reseller. Reseller shall acquire no property right in such
numbers, which may be reassigned by PageNet in its sole discretion in the
ordinary course of its business.
5.02 Minimum Period. Any provision of telephone numbers hereunder shall be
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effective for, and Reseller shall be obligated to pay the charges for such
numbers for, a minimum service period of one (1) month.
5.03 Limitation of Assignment of Paging Numbers. PageNet reserves the
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right, in its sole discretion, to limit the provision of telephone numbers to
Reseller (for tone-only, digital display, alphanumeric paging services, or all)
for technical reasons, including the limited availability of numbers or radio
frequencies for the provision of Paging Services in the Territory.
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5.04 Number Activation/Discontinuance. In order to request activation of
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telephone numbers assigned pursuant to Paragraph 5.01, Reseller must utilize the
method of activation requested by PageNet. If a direct access system for pager
programming transactions is required by PageNet, Reseller must provide any
necessary access equipment, including personal computer and modem, to utilize
the direct access system. Further, all capcodes utilized for pager activation
through PageNet's direct access system service are to be issued and secured
through PageNet. PageNet may disconnect any pager(s) with unauthorized
capcode(s) on twenty-four (24) hours notice to Reseller. PageNet shall not be
liable for any failure or inability to provide direct access system service to
Reseller. PageNet reserves the right, in its sole discretion, to discontinue
Reseller's direct access system service at any time. If activation by facsimile
is requested by PageNet, Reseller may request activation of telephone numbers
assigned by faxing specific requests to PageNet's office between 9:00 a.m. and
4:30 p.m. local time Monday through Friday excluding holidays). PageNet may
request Reseller to activate telephone numbers in minimum blocks of 1, if
Reseller does not utilize a direct access system. Resellers not using a direct
access system must make any request for discontinuance of a telephone number in
writing in advance of such discontinuance. If Reseller has not paid any amounts
due PageNet, PageNet shall have the right to discontinue activation of
additional telephone numbers or adding cap codes, without liability of PageNet
to Reseller.
ARTICLE VI
SERVICE FEES
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6.01 Basic Services. In consideration for the Basic Services provided by
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PageNet pursuant to Paragraph 2.01, for each telephone number assigned by
PageNet to Reseller pursuant to paragraph 5.01 and 5.02, Reseller shall pay the
monthly Basic Service Rate specified in Exhibit A.
6.02 Optional Services. In consideration for any Optional Services provided
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by PageNet pursuant to Paragraph 2.02, Reseller shall pay the rates specified in
Exhibit A.
6.03 Manner of Payment. PageNet shall submit to Reseller an invoice for
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monthly payments due under Paragraphs 6.01 and 6.02 for services rendered in a
month, plus applicable taxes, on or before the third (3rd) business day of the
beginning of such month. Reseller shall pay the full amount set forth in such
invoice, without offset, on or before the tenth (10th) day of such month. All
payments shall be made to PageNet by check, or cash or cash equivalent if
required by PageNet, at the address set forth in Paragraph 14.02 or at such
other address as PageNet may specify from time to time.
6.04 Late Payment. Any payments due from Reseller which are not made by the
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date set forth in Paragraph 6.03 shall be assessed a late payment charge
calculated at the lesser of the maximum rate permitted by law or a compounded
rate of one and
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one-half percent (1-1/2%) per month on the amount outstanding from the date such
amount was due until the date paid.
6.05 Absolute Obligation. The amounts due to PageNet under this Article VI
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shall be paid by Reseller regardless of whether Reseller has been paid for the
Paging Services it renders to End Users. The amount of any disputed xxxx shall
be paid in accord with Section 6.03, together with a written statement by
Reseller of the specific ground for dispute. Any disputed amount shall be
refunded by PageNet with interest calculated as provided in Section 6.04, in the
event and to the extent the dispute is resolved in Reseller's favor through
negotiation or arbitration pursuant to Article XIII.
6.06 Credits for Interruptions. Reseller shall be entitled, upon request,
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to a credit for interruptions in service which last in excess of eight (8)
consecutive hours, which credit amount shall be equal to that part of Reseller's
payment to PageNet which is equivalent to the fraction of the relevant month
during which service was interrupted. Such credit shall be applied as a
reduction in future invoices.
ARTICLE VII
REGULATION
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Reseller acknowledges that the activities of PageNet and/or Affiliates in
connection with the provision of Paging Services hereunder are regulated by the
FCC and that the activities of PageNet and Reseller in connection with the
transactions contemplated by this Agreement are or may be subject to regulation
by authorities in the individual state(s) of operation. Accordingly, Reseller
and PageNet mutually agree as follows:
7.01 Consents. The execution, delivery and performance of this Agreement
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and the transactions contemplated hereby are subject to the receipt of any
necessary prior approvals or authorizations by or from the FCC or any other
Federal, State or Local governmental authority. Reseller and PageNet agree to
use their best efforts to promptly obtain any such approvals or authorizations
applicable to them.
7.02 Compliance with Regulations. Reseller and PageNet shall comply, in all
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material respects, with all statutes, laws, regulations, tariffs and orders
adopted or issued by any governmental authority governing the provision of
Paging Services by PageNet to Reseller and by reseller to End Users. In the
event the FCC or any other governmental entity shall require any material
additions, deletions, or modifications to the terms or conditions of this
Agreement, PageNet and Reseller shall use reasonable efforts to reconstitute
this Agreement to comply with such requirements, but only to the extent that
such modifications would not materially affect the rights and obligations of the
parties hereto.
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7.03 Records. Reseller shall maintain records regarding its resale
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activities to the extent required by the FCC or any other governmental
authority, and such records shall be made available to PageNet for its
inspection upon reasonable request.
7.04 Control of Radio Facilities. Reseller acknowledges that PageNet or
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its Affiliate is the FCC licensee of the radio paging facilities used to provide
Paging Services to Reseller hereunder and that PageNet or its Affiliate has the
sole authority and responsibility to ensure that the paging facilities are
operated in accordance with the terms of their licenses and the rules and
regulations of the FCC. No provision of this Agreement shall be construed as
vesting in Reseller any control over the radio paging facilities licensed to
PageNet or its Affiliate, and PageNet or its Affiliate shall maintain full
responsibility for the control, supervision, operation and maintenance of such
facilities. Reseller shall immediately notify PageNet of any complaints received
from End Users relating to the provision of Paging Services over the paging
facilities and shall confirm such complaints to PageNet in writing.
ARTICLE VIII
REPRESENTATION AND WARRANTIES
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PageNet and Reseller represent and warrant that: this Agreement is a legal,
valid and binding obligation of each such party, enforceable in accordance with
its terms, except insofar as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, or by principles governing the availability of
equitable remedies.
ARTICLE IX
TERMINATION
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Anything set forth herein to the contrary notwithstanding, this Agreement
may be terminated by PageNet or Reseller as provided below:
9.01 Nonpayment. PageNet may terminate this Agreement if Reseller has
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failed to pay any amounts due under Article VI, and such failure continues for a
period of ten (10) days after the receipt by Reseller of notice of nonpayment
from PageNet.
9.02 Abandonment. PageNet may terminate this Agreement immediately if
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Reseller has abandoned its business and/or ceased providing support to End Users
and potential customers.
9.03 Other Breaches. Either party may terminate this Agreement if the
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other party commits a material breach or default of any of the provisions of
this Agreement other than those related to payment to PageNet or abandonment and
such breach or default has not been cured within thirty (30) days after receipt
by the
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breaching party of the non-breaching party's notice of such breach default.
9.04 Minimum Threshold. If Reseller shall fail to have and maintain a
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minimum of _______ pager numbers assigned within _____ months of this Agreement,
PageNet may terminate this Agreement at its sole discretion. Prior to
termination, Reseller shall be granted the option of accepting billing and
paying for a minimum of such amount of pager numbers per Exhibit A.
9.05 Government Restrictions. Either party may terminate this Agreement if
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the performance of this Agreement pursuant to the terms hereof has been
prohibited by any Federal, State or Local court, Governmental or regulatory
body, and the parties are unable to reconstitute this Agreement pursuant to
Paragraph 7.02.
9.06 After Initial Term. Either party may terminate this Agreement at any
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time following the initial term by providing ninety (90) days written notice to
the other party.
9.07 Consequences of Termination. If this Agreement is terminated by
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reason of an uncured breach by Reseller, Reseller shall immediately provide
PageNet with a list of names, addresses and telephone numbers of all End Users
served by Reseller. Upon any termination, PageNet shall have the right to
directly provide Paging Services to such End Users as permitted by law, with no
further liability by PageNet to Reseller. PageNet may also notify (by electronic
signal, voice mail or otherwise) End Users of the fact that service will no
longer be provided to them by PageNet through Reseller, and of the means whereby
continuity of service may be assured. The termination of this Agreement pursuant
to this Article IX shall not relieve the parties of any obligations incurred
hereunder up to and including the date of termination.
ARTICLE X
LIMITATION OF LIABILITY
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Notwithstanding any other provision of this Agreement, the liability of
PageNet to Reseller resulting from PageNet's failure or inability to provide the
Paging Services specified herein shall be limited to credits for interruptions
as specified in Paragraph 6.06. Other than such credits, Reseller's sole remedy
for PageNet's failure or inability to perform its obligations under this
Agreement shall be to terminate this Agreement as provided in Article IX. IN NO
EVENT SHALL PAGENET BE LIABLE TO RESELLER OR TO ANY END USERS FOR ANY AMOUNTS
REPRESENTING LOSS OF PROFITS, LOSS OF BUSINESS, INDIRECT, SPECIAL, EXEMPLARY,
CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM THE PERFORMANCE OR NONPERFORMANCE
OF THIS AGREEMENT OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO
THE USE OF ANY ITEMS OR SERVICES FURNISHED HEREUNDER, WHETHER THE BASIS OF THE
LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT
LIABILITY), STATUES, OR ANY OTHER LEGAL THEORY.
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ARTICLE XI
INDEMNIFICATION
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Reseller shall indemnify and hold harmless PageNet, its Affiliates, their
respective directors, officers, employees, agents, subsidiaries, affiliates,
subcontractors and assignees, or any of them, from and against all claims,
damages and liabilities resulting from the acts or omissions of Reseller or the
failure by Reseller to perform its obligations hereunder.
ARTICLE XII
TRADE NAMES AND TRADE MARKS
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Reseller acknowledges and agrees that PageNet (or an Affiliate of PageNet)
is the sole and exclusive owner of all right, title and interest in and to the
trademarks, service marks and trade names "Paging Network," "Paging Network of
Atlanta," "PageNet," "PageMate," "SurePage," "VoiceNow," and all other
trademarks, service marks, corporate names and trade names used from time to
time by PageNet or its Affiliates (collectively, the "Marks"). Reseller agrees
that, at any time during the term hereof or after its expiration or termination,
it will not in any manner represent that it has any right, title or interest in
or to any of the Marks, it will not use any of the Marks in any way, it will not
register or attempt to register any of the Marks (or any xxxx or name
confusingly similar to any of the Marks) under the laws of any jurisdiction, and
it will not do or cause or suffer to be done any act or thing impairing the
distinctiveness of the Marks or any part of PageNet's rights, title and interest
therein (whether or not the Marks are registered in the jurisdiction(s) in which
Reseller is located or does business). Reseller shall use and display the Marks
exclusively to identify PageNet and the products and Paging Services and
Optional Services provided by PageNet, and only in such form and manner as may
be authorized by PageNet in writing from time to time. All uses of the Marks by
Reseller shall inure to the exclusive benefit of PageNet.
ARTICLE XIII
ARBITRATION
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ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR
ANY BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION IN THE TERRITORY AND IN
ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES THEN IN FORCE OF THE AMERICAN
ARBITRATION ASSOCIATION, AND JUDGMENT UPON THE ORDER RENDERED BY THE
ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
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ARTICLE XIV
MISCELLANEOUS
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14.01 Assignment. This Agreement shall be binding upon and inure to the
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benefit of the parties and their respective successors and assigns; provided,
however, that neither this Agreement nor Reseller's End User accounts may be
assigned by Reseller in any manner, including in connection with the acquisition
of the stock or assets of Reseller, without the prior written consent of
PageNet, which shall not be unreasonably withheld, and provided that Reseller
shall notify PageNet in writing of the terms of any proposed transfer at least
thirty days prior to its consummation, and provided further, that Reseller shall
have at the same time extended to PageNet a right to acquire Reseller's End User
Accounts and/or rights hereunder on the same terms, which offer shall be
accepted or declined by PageNet in writing within twenty days of PageNet's
receipt thereof. No assignment or transfer of this Agreement or any End User
accounts shall be valid if any monetary amounts remain due and payable to
PageNet by Reseller.
14.02 Notices. Any notice, request, instruction, legal process or other
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document to be given hereunder shall be in writing and shall be delivered by
hand delivery, facsimile, or overnight mail service to the address and/or
telephone number set forth below or such other number(s) or addresses as may be
specified by the relevant party, in writing, from time-to-time during the term
hereof.
If to PageNet: PageNet of Atlanta, Inc.
0000 Xxxxx Xxxx Xxxxx 000
Xxxxxxx, XX 00000
000-000-0000 (Reseller Dept. EXT 151)
Fax: 000-000-0000
If to Reseller: ______________________________________
______________________________________
______________________________________
______________________________________
Fax:__________________________________
Notices sent by the above means shall be conclusively deemed received on
the date shown on the confirmation slip (for notices sent by facsimile
transmission), or in the case of courier or overnight service, the date of
receipt shall be that stated by the return receipt or other evidence provided by
the delivering service.
14.03 Relationship of the Parties. Reseller's relationship to PageNet is
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that of an independent contractor and no other relationship is intended or
created between the parties hereto. Nothing in this Agreement shall be construed
to make Reseller an agent of PageNet.
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14.04 Choice of Law. This Agreement shall be construed in accordance with
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and governed by the laws of the State of GEORGIA.
14.05 Severability. If any provision of this Agreement is declared or
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found to be illegal, unenforceable, or void, the parties shall negotiate in good
faith to agree on a substitute provision that is legal and enforceable and is
as nearly possible consistent with the intentions underlying the original
provision. If the remainder of this Agreement is not materially affected by such
declaration or finding and is capable of substantial performance, then the
remainder shall be enforced to the extent permitted by law.
14.06 No Waiver. No delay or omission by either party to exercise any
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right or power shall impair any such right or power or be construed to be a
waiver thereof. A waiver by any party of any of the covenants, conditions or
contracts to be performed by the other or any breach thereof shall not be
construed to be a waiver or any succeeding breach thereof, or of any other
covenant, condition or contract herein contained. No change, waiver or discharge
hereof shall be valid unless it is in writing, and signed by an authorized
representative of the party against which such change, waiver or discharge is
sought to be enforced.
14.07 Counterparts. This Agreement may be executed by the parties in
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counterpart copies which together shall constitute the entire agreement between
the parties hereto. When executed, this Agreement shall supersede all prior and
contemporaneous agreements, written or oral, of the parties with respect to the
subject matter hereof and this Agreement may not be amended except by a writing
signed the authorized representative of each party
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
PAGING NETWORK OF ATLANTA, INC.
By: /s/ Xxx Xxxxxx
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Print Name: Xxx Xxxxxx
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Title: Reseller Manager
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RESELLER
By ____________________________________________
Printed Name: __________________________________
Title: _________________________________________
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Exhibit A
SCHEDULE OF CHARGES
PAGING NETWORK OF ATLANTA, INC.
A. Basic Service Rate
Basic Service includes pager air time only in PageNet's Territory served by
the (404) (770) (706) (803) (912) telephone area codes.
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Statellink (Reseller) has agreed to purchase a quantity of _______ basic service
activations at a rate of _______ per unit. Both parties to the contract are in
agreement that this pricing is contingent upon the ability of __________________
(Reseller) to obtain the benchmark set forth below:
********************************************************************************
* activations on or before a one-year period from contract date
If the above benchmarks are not met, airtime pricing will increase to reflect
PageNet of Atlanta's normal tier pricing schedule as follows:
1 - 500 units = $****
501 - 1000 units = $****
1001 - 2000 units = $****
2001 - 3000 units = $****
3001 units = $****
********************************************************************************
B. Optional Services
Systems (generic) Greeting $***********************************
Custom Greeting $****
MiniMail $****
PageMail $****
PageMail Plus $****
Numeric Retrieval $****
Additional Phone Number $****
Extended Coverage: Carolina's $****
Florida $****
Tennessee $****
There is no connection fee charge to the Reseller.
A.15 overcall charge shall apply to those accounts that exceed 450 calls during
the period of a month. This will be based on an average number of calls based
on the reseller's total activations.
********************************************************************************
The about rate and benchmarks apply to digital paging. The rate for alphanumeric
airtime is $**** and is subject to an overcall charge of $*********************
*****. The alphanumeric rate shall be considered separate from the digital rate
in that it shall exclude both quantity discounts via pricing tiers and the
calculation method used in determining digital overcalls.
* Pricing information has been omitted from this Exhibit and from the Agreement
pursuant to a confidential treatment request filed with the Commission.
