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EXHIBIT 10.22
RESALE AGREEMENT
BETWEEN
GTE COMMUNICATIONS CORPORATION
AND
PAGEMART WIRELESS, INC.
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TABLE OF CONTENTS
PAGE
1. TERM 1
2. DEFINITIONS 1
3. LICENSE 2
4. INDEPENDENT PARTIES 2
5. SCOPE 3
6. LICENSOR RESPONSIBILITIES 3
7. RESELLER RESPONSIBILITIES 5
8. PERFORMANCE STANDARDS 5
9. PERFORMANCE MEASUREMENTS 6
10. SERVICE COMMITMENT 6
11. PUBLIC REGULATION 7
12. PRICING 8
13. BILLING AND COLLECTIONS 9
14. TERMS OF PAYMENT 9
15. WARRANTY 10
16 RIGHT TO AUDIT 10
17. PRECEDENCE OF DOCUMENTS 10
18. USE OF CONFIDENTIAL INFORMATION 11
19. PUBLICITY 12
20. COMPLIANCE WITH LAWS 12
21. FORCE MAJEURE 12
22. LIABILITY 13
23. ASSIGNMENT 15
24. TAXES 15
25. RECORDS 15
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26. RIGHT OF ACCESS 16
27. TERMINATION 16
28. DISPUTE RESOLUTION 17
29. NOTICES 18
30. NONWAIVER 19
31. SEVERABILITY 19
32. SECTION HEADINGS 19
33. SURVIVAL OF OBLIGATIONS 20
34. CHOICE OF LAW 20
35. ENTIRE AGREEMENT 20
SIGNATURES 20
EXHIBIT A. - PRICING 21
EXHIBIT B. - PERFORMANCE REQUIREMENTS 22
EXHIBIT C. - REPAIR REPORTING &
ESCALATION PROCEDURES 23
EXHIBIT D. - NETWORK REPORTS CRITERIA 24
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RESALE AGREEMENT
This Agreement is made as of December 12, 1997, by and between PageMart
Wireless, Inc., a Delaware corporation, with offices for the purpose of this
Agreement located at 0000 Xxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000
(hereinafter referred to as "LICENSOR") and GTE Communications Corporation, a
Delaware corporation, with offices located at 0000 Xxxxx X'Xxxxxx Xxxxxxxxx,
00xx Xxxxx, Xxxxxx, Xxxxx 00000 (hereinafter referred to as "RESELLER").
WHEREAS, LICENSOR provides paging, voice messaging, and related messaging
services (hereinafter referred to as "SERVICES"); and
WHEREAS, RESELLER desires to contract with LICENSOR to resell such SERVICES
and, in connection therewith, to receive blocks of Personal Identification
Numbers (hereinafter referred to as "PINs") and Direct Inward Dialing numbers
(hereinafter referred to as "DIDs") that provide individual access to
LICENSOR's system and SERVICES, for resale to members of the general public;
THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties agree as follows:
1. TERM
This Agreement shall be effective on the date written above and shall
continue in effect thereafter for a period of thirty-six (36) months
(hereinafter the "Term") unless terminated or modified by either party in
accordance with the provisions of this Agreement. This Agreement shall
be automatically terminated unless renewed by RESELLER by written notice
to LICENSOR not less than thirty (30) days prior to the end of the Term.
At the end of each twelve (12) month period of the Term either party
shall have the option to request review of the Agreement terms and
adjustment of such terms as are mutually agreed upon by the parties.
Unless mutually agreed otherwise, the Agreement shall remain in force as
written until the end of the Term.
2. DEFINITIONS
(a) CAP Code - The numeric code that identifies and is unique to each
pager placed in service on LICENSOR's Paging System.
(b) DID - A local telephone number assigned by LICENSOR to identify a
specific pager on the LICENSOR's network.
(c) Equipment - Pagers and related message receiving devices.
(d) Paging Terminal - A paging switch that processes paging calls.
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(e) Paging System - A telecommunications and radio frequency(ies)
network that provides paging and related messaging services
throughout a specific geographic area.
(f) PIN - Personal Identification Number. A specific number assigned
by LICENSOR to identify a pager on the LICENSOR's network. By
entering the PIN into LICENSOR's computer via a touch-tone
telephone, the respective pager is activated.
(g) SERVICES - paging, voice messaging, and related messaging
services currently offered for resale by LICENSOR, including but
not limited to such additional SERVICES as LICENSOR makes
available in the retail or reseller market during the Term of
this Agreement. Notwithstanding the foregoing, at such time
LICENSOR makes available two-way messaging for resale, the
parties shall mutually agree to the terms and conditions under
which such services will be provided to RESELLER.
(h) Subscriber - A person or entity that is an end user of the
LICENSOR's Paging System.
(i) Telephone Interconnect Charges - Those charges directly
associated with acquiring Direct Inward Dial (DID) paging
telephone numbers and transporting calls from the local exchange
carrier.
3. LICENSE
(a) LICENSOR grants RESELLER a non-exclusive license to resell
LICENSOR's SERVICES subject to the terms of the Agreement and the
rules, regulations and decisions of the Federal Communications
Commission (hereinafter referred to as "the FCC").
(b) RESELLER is authorized to license its own sub-agents and
affiliates for the marketing, promotion and resale of LICENSOR's
SERVICES, provided that RESELLER shall be responsible for the
observance by its sub-agents, affiliates, and sub-licensees of
the terms and conditions of this Agreement. RESELLER shall
provide notice to LICENSOR of all sub-agents and affiliates
authorized for promotion and resale on its behalf.
4. INDEPENDENT PARTIES
Each party is an independent contractor. Except as provided in this
Agreement, neither party shall have the right, power, or authority to
act or to create any obligation, express or implied, on behalf of the
other party. Except as permitted pursuant to paragraph 3(b) above, all
sales by RESELLER shall be in its own name and for its own account.
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5. SCOPE
(a) This Agreement is non-exclusive and RESELLER is under no
obligation to LICENSOR to resell any certain amount of SERVICES
or refrain from selling or reselling competing SERVICES.
(b) LICENSOR hereby agrees to provide SERVICES in an efficient,
economic, and timely fashion in accordance with the generally
accepted commercial and business practices in the industry.
(c) This Agreement is solely between LICENSOR and RESELLER and is not
intended to create rights in or obligations to any third party.
6. LICENSOR RESPONSIBILITIES
For the Term:
(a) LICENSOR shall establish a dedicated account manager for
communications with RESELLER and shall actively manage the
relationship between the parties. The account manager will be
the focal point for all issues and questions that may arise
during this relationship and shall be available by pager at all
times. Escalation procedures have been defined by both the
LICENSOR and RESELLER as outlined in Exhibit C.
(b) LICENSOR shall provide RESELLER's Subscribers with access to its
Paging System to initiate and receive paging messages and shall
use commercially reasonable good faith efforts to provide
continuous network service in the geographical locations where
LICENSOR is legally authorized and has the facilities to provide
SERVICES.
(c) The SERVICES provided by LICENSOR for resale by RESELLER shall
include but not be limited to those listed on Exhibit A hereto as
amended by the parties from time to time.
(d) LICENSOR shall assign and coordinate all DID, CAP Code and, at
RESELLER's option, toll free numbers in order to ensure the
compatible initiation of SERVICES to RESELLER's Subscribers
placed on LICENSOR's Paging System. LICENSOR shall provide at no
charge, all required software, documentation and training to
RESELLER to authorize and enable RESELLER to initiate and
terminate SERVICES to RESELLER's customers as Subscribers on
LICENSOR's Paging System.
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(e) *
(f) LICENSOR will provide sample collateral and marketing materials.
This will include network manuals and features / options
collateral. RESELLER shall have the right to copy, modify,
reproduce and change all collateral and use and distribute such
collateral in modified or unmodified form without further consent
of or payment to LICENSOR provided that RESELLER shall not omit
or misstate any material fact contained in the collateral or
marketing material, including without limitation, the
specifications or functionality of the equipment, the SERVICES,
or LICENSOR's network capability. RESELLER will defend,
indemnify and hold harmless LICENSOR from any claim, assertion,
suit, demand or proceeding ("Claim"), to the extent that such
Claim is caused by modification by RESELLER to, or use by
RESELLER beyond that contemplated by this Agreement of,
collateral, marketing materials or manuals provided by LICENSOR
to RESELLER under this Section 6(f).
(g) At the request of RESELLER, LICENSOR shall provide RESELLER
training for all SERVICES covered by the scope of this Agreement
no less than ten (10) days, but not more than thirty (30) days
prior to RESELLER's scheduled introduction of those SERVICES.
(h) LICENSOR shall provide and support on-line access to LICENSOR's
administration system by which RESELLER may activate, deactivate,
suspend, or terminate SERVICES to its Subscribers.
(i) LICENSOR shall provide, support and update its zip code coverage
area database to reflect its Paging System coverage areas.
(j) LICENSOR shall use its commercially reasonable best efforts to
provide at least ninety (90) days' prior written notice of new
products and services offerings.
(k) LICENSOR shall use its commercially reasonable best efforts to
provide at least ninety (90) days' notice of revisions to
LICENSOR's administrative ordering system that may materially
affect LICENSOR's ability to provide SERVICES or RESELLER's
ability to initiate and terminate SERVICES to RESELLER's
customers as Subscribers on LICENSOR's Paging System.
(l) If LICENSOR alters or revises transmission protocols, LICENSOR
shall provide at least one hundred eighty (180) days' advance
notice to RESELLER prior to the effective date of such proposed
change. If LICENSOR changes transmission protocols whereby
previously authorized Equipment is no longer authorized for
additional users on LICENSOR's transmission system, except only
to the extent prohibited by law, LICENSOR agrees to grandfather
all of
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RESELLER's existing Subscriber's Equipment for continued use on
the LICENSOR's network until LICENSOR proposes a mutually
acceptable transition plan for such grandfathered Subscribers'
Equipment. At the end of the one hundred eighty (180) days'
notice period, RESELLER shall no longer sell or place into
service under lease additional units of Equipment that is no
longer authorized for additional users on LICENSOR's transmission
system.
(m) LICENSOR shall assist and support RESELLER in integrating
RESELLER'S billing and administration systems with LICENSOR's
administration system to permit RESELLER to simplify and maximize
its efficiency in reselling LICENSOR's SERVICES.
(n) LICENSOR shall provide repair services to RESELLER and RESELLER's
Subscribers in accordance with the terms of Exhibit C to this
Agreement.
(o) LICENSOR shall provide network reports in accordance with the
terms in Exhibit D to this Agreement.
7. RESELLER RESPONSIBILITIES
(a) RESELLER shall be solely responsible for providing all sales,
Equipment and customer support services to its Subscribers.
RESELLER further agrees that all Equipment provided to its
Subscribers shall be compatible with the existing transmission
system of LICENSOR. RESELLER further agrees that all Equipment
provided to its Subscribers for use on LICENSOR'S transmission
system shall utilize the industry standard of FLEX (TM) based
protocols.
(b) RESELLER shall be solely responsible for all xxxxxxxx to and
collections from its Subscribers, including but not limited to
the sending of periodic bills, collection of amounts owed or past
due, and the collection and return of all applicable taxes on
such SERVICES or Equipment rentals.
(c) RESELLER shall provide and mail all announcements or notices
required to be mailed to its Subscribers as required by any
regulatory agency.
(d) RESELLER shall maintain and keep in good working order all
Equipment sold or leased by RESELLER to its Subscribers pursuant
to the terms of this Agreement, in accordance with all
manufacturer's specifications and the provisions of the filed
tariffs of LICENSOR.
8. PERFORMANCE STANDARDS
LICENSOR agrees to comply with the Performance Requirements
encompassed in Exhibit B to this Agreement. If LICENSOR fails to meet
any of the Performance
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Requirements (except to the extent such failure is caused by a Force
Majeure event or an act or omission of RESELLER), RESELLER may provide
written notice to LICENSOR regarding such failure and LICENSOR shall
use its best efforts to comply with such Performance Requirements. If
LICENSOR fails to meet such Performance Requirements (except to the
extent such failure is caused by a Force Majeure event or an act or
omission of RESELLER)*
9. PERFORMANCE MEASUREMENTS
LICENSOR's performance shall be measured against the Performance
Requirements of Exhibit B as reported by RESELLER's Performance
Measurements Report Card. RESELLER shall meet with LICENSOR within
thirty (30) days of contract execution to present Report Card
Performance Measurements. The Report Card Performance Measurements
will also reflect RESELLER's Performance Objectives, which may in many
respects be more stringent than the contract requirements. On a
quarterly basis, RESELLER shall compile the performance data and
publish the Performance Report on Vendor Effectiveness (PROVE) Report
Card. LICENSOR shall provide written action plans for Performance
Measurements that do not meet RESELLER's Performance Requirements
Report Card. Additional action plans shall be provided to RESELLER in
conjunction with pre-scheduled meetings for all Report Card
Performance Measurements not met on a quarterly basis. The corrective
action associated with the action plans shall be implemented within
thirty (30) days, unless the parties otherwise agree.
10. SERVICE COMMITMENT
*
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11. PUBLIC REGULATION
(a) It is understood that the ultimate control and responsibility
for the standard and quality of SERVICES required under the
provisions of and license issued by the FCC to LICENSOR shall
be retained, rest and remain the prerogative and obligation
solely of LICENSOR. No provision of this Agreement shall be
construed as vesting in RESELLER any control whatsoever of the
radio communication facilities and operations of LICENSOR. To
the extent any performance obligations assumed in this
Agreement exceed standards set by the FCC, paragraphs (b) or
(c) of this section shall not be construed to relieve LICENSOR
from the performance obligations assumed in this Agreement.
(b) This Agreement is subject to all of the terms and conditions
of LICENSOR's outstanding authorizations from the FCC and the
utility regulatory agencies in the states to which this
Agreement pertains, as such tariffs and authorizations are
presently in effect or as they may hereafter be revised.
Nothing in this Agreement shall be construed so as to impair
or diminish LICENSOR's control over the facilities of the
applicable stations.
(c) It shall be LICENSOR's obligation to obtain all federal, state
and local approvals that are required for LICENSOR's lawful
participation in this Agreement.
(d) This Agreement shall be terminated, amended, revised, or
supplemented immediately if required by applicable law or
regulation; provided, that RESELLER shall have the option to
terminate this Agreement on thirty (30) days' written notice
to LICENSOR, given after receipt of written notice from
LICENSOR of such a required amendment, revision or supplement,
that RESELLER determines will have a material impact on its
products, services or business.
(e) The imposition by federal, state or local regulatory agencies
of any amendments, revisions, deletions or supplements to this
Agreement shall thereby relieve LICENSOR and RESELLER of any
obligations or liabilities to the other resulting from the
provisions of this Agreement which were ordered amended,
revised, deleted or supplemented; provided, that RESELLER
shall have the option to terminate this Agreement on thirty
(30) days' written notice to LICENSOR, given after receipt of
written notice from LICENSOR of such a required amendment
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revision or supplement, that RESELLER determines will have a
material impact on its products, services or business.
12. PRICING
(a) RESELLER hereby agrees to pay LICENSOR the charges and fees
for SERVICES specified in Exhibit A in accordance with the
terms and conditions contained herein.
(b) The charges and fees specified in Exhibit A shall commence at
the time RESELLER activates each particular number in LICENSOR's
Paging System. Such charges shall continue for each number for
a minimum of thirty (30) days, and thereafter until the number
in question is canceled or otherwise disconnected in accordance
with the provisions herein. When a number is activated in the
middle of a month, the applicable rate will be prorated to the
first of the following month so that all subsequent bills will
be tendered thereafter on a monthly basis.
(c) With the exception of Telephone Interconnect Charge changes, the
specified prices in Exhibit A shall remain firm for the first
twelve (12) months of this Agreement. Thereafter, each party
may propose price adjustments once in each successive twelve
(12) month period of the Term by giving written notice to the
other at least ninety (90) days prior to the proposed effective
date of the new pricing. However, no price adjustment will be
effective unless mutually agreed by the parties in writing.
LICENSOR shall honor all prices for SERVICES for which orders
have been issued prior to the effective date of such adjustment.
(d) Notwithstanding the foregoing or anything to the contrary
contained in this Agreement or any schedule or exhibit attached
hereto, LICENSOR shall have the right, where permitted by
applicable law or regulation, to change the fees charged for
SERVICES at any time upon thirty (30) days prior notice to
RESELLER in the event LICENSOR deems such change necessary to
comply with applicable law or regulation, whether state or
federal, or in the event LICENSOR determines that a change in
applicable law or regulation substantially affects LICENSOR's
operating costs. If RESELLER deems such requested changes
unreasonable or undesirable, RESELLER may terminate this
Agreement upon thirty (30) days written notice to LICENSOR.
(e) *
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(f) Where allowable by the state regulating authority, the prices
charged by RESELLER to its Subscribers for all SERVICES shall be
determined solely by RESELLER. In states where tariff rates are
required, RESELLER may operate under its own tariff or the
tariff of LICENSOR.
13. BILLING AND COLLECTIONS
(a) LICENSOR will provide RESELLER a single tape for monthly
recurring charges and excess usage in an agreed format.
LICENSOR shall provide usage data to RESELLER no later than ten
(10) days after the first day following the month such charges
were incurred. Invoice and detail shall be received no later
than fifteen (15) days after the first day of the month
following the month such charges were incurred. LICENSOR shall
endeavor to reduce the interval for provision of invoices and
detail to no more than five (5) days as soon as feasible for
RESELLER data.
(b) The invoice and associated detail must be generated and supplied
in an acceptable electronic format as predetermined by both
parties.
(c) Both parties shall collaboratively develop and establish
mutually acceptable protocol and system requirements to
accommodate electronic data transfer between their respective
computer systems.
(d) *
(e) LICENSOR shall provide the data required by RESELLER's billing
department to credit RESELLER for network outages. This credit
process shall be an automated process and shall not require a
credit request from RESELLER.
14. TERMS OF PAYMENT
Payment shall be due thirty-one (31) days after the date of LICENSOR's
invoice, or the receipt of LICENSOR's invoice, whichever is later. The
invoice rendering date and dates showing the time period covered by
the invoice must be printed on the invoice. Amounts disputed by
RESELLER shall be withheld from the monthly remittance and LICENSOR
shall be notified in writing of such disputed amounts and shall be
provided with documentation supporting such disputed amounts within
thirty-one (31) days of RESELLER's receipt of the invoice containing
such disputed charges. If the parties are unable to resolve the
dispute within thirty (30) days following LICENSOR's receipt of
RESELLER's written notice of disputed charges and supporting
documentation, the dispute shall at the request of either party that
wishes to pursue the matter be submitted for resolution via the terms
of Section 28 of this Agreement. RESELLER shall only be assessed late
charges for amounts held in dispute that are determined pursuant to
the resolution provisions of Section 28 to have been disputed in bad
faith.
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Such late charges shall be assessed at the rate of one and one-half
percent (1 1/2%) per month on the disputed amount outstanding.
15. WARRANTY
LICENSOR represents and warrants that its Paging System and any
software provided to RESELLER for use in association with the SERVICES
is capable of correctly processing, providing, and receiving date data
as well as properly exchanging accurate date data with all products
(for example, hardware, software and firmware) with which this Paging
System and software is designed to be used and will not malfunction or
cease to function due to an inability to correctly process such date
data, including but not limited to transitions to or from the years
1999 and 2000.
16. RIGHT TO AUDIT
Upon written notice to LICENSOR, RESELLER or its authorized
representative, shall have the right to commence an audit of
LICENSOR's books, records and operations pertaining to its performance
of this Agreement. The scope of the audit may include, but is not
limited to: financial records, documentation and procedures, and
input and output processing. Within thirty (30) days of such notice,
the Parties will determine the location, date and specific information
to be audited. No more than two audits may be conducted in any
calendar year. Audits will be conducted during normal business hours
and shall be of such records, accounts and internal processes and
procedures that contain information concerning any reports provided by
LICENSOR or any charges payable under the terms of this Agreement
including, but not limited to, billing logic and associated systems.
The cost of the audit shall be borne by RESELLER if the amount of
overcharges discovered but not previously reimbursed to RESELLER does
not exceed five percent (5%) of net payments to LICENSOR over the
previous twelve (12) months. However, the cost of such audit shall be
borne by LICENSOR if the amount of overcharges discovered but not
previously reimbursed to RESELLER exceeds five percent (5%) of
RESELLER's net payments to LICENSOR over the previous twelve (12)
months. All auditors shall be subject to the confidentiality
requirements of both parties established herein.
17. PRECEDENCE OF DOCUMENTS
All orders for SERVICES placed by RESELLER upon LICENSOR during the
Term hereof shall be subject to and governed by the provisions
contained herein. The terms and conditions of this written Agreement
shall control over any conflicting or inconsistent terms and
conditions contained in any order placed with LICENSOR by RESELLER and
in any order confirmation issued by LICENSOR to RESELLER.
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18. USE OF CONFIDENTIAL INFORMATION
(a) Any specifications, drawings, sketches, models, samples,
tools, computer programs, technical information, or
confidential business information or data disclosed by one
party to the other hereunder, if in writing and clearly marked
as "confidential" or with words of clearly similar meaning, at
the time of disclosure, or if oral and designated as
confidential at the time of disclosure as well as summarized
in a writing indicating the confidential nature of the same
within twenty (20) days of disclosure (hereinafter called
"Confidential Information"), shall remain the property of the
supplier of such Information. All copies of such Confidential
Information in written, graphic or other tangible form shall
be returned to the discloser upon request,
(b) For the purposes of this Agreement, Confidential Information
shall not include any information that:
(1) was previously known to the recipient;
(2) is subsequently received by the recipient free from
any obligation to keep it confidential;
(3) is independently developed by the receiving party; or
(4) was or is subsequently made public by the supplier or
a third party, without breach of any obligation of
confidentiality.
All Confidential Information shall be treated as confidential
and not disclosed by the recipient, and shall unless the prior
written consent of the disclosing party is obtained be used by
the recipient only in connection with fulfilling the
obligations of the recipient that arise pursuant to this
Agreement, Confidential Information shall only be distributed
to those employees of the recipient who have a need to know.
(c) Each party shall treat the other's Confidential Information in
accordance with a standard of care reasonably calculated to
prevent inadvertent or accidental disclosure. Nothing herein
shall be construed as waiving the right of any party to
require the other party to execute a written nondisclosure
agreement, containing reasonable additional terms and
conditions, prior to the supplying of particular Confidential
Information from time to time.
(d) LICENSOR shall take such measures as necessary to ensure that
all information regarding RESELLER's customers and potential
customers received by LICENSOR from RESELLER is not made
available to or used by LICENSOR, its affiliates, employees or
agents for any purposes other than to support RESELLER. This
shall not, however, be construed to prohibit
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LICENSOR from competing with RESELLER, provided it does not
use RESELLER provided information to do so.
19. PUBLICITY
The parties agree to submit to one another for written approval all
advertising, sales promotion, press releases and other publicity
matters relating to the SERVICES furnished or the SERVICES performed
by them pursuant to this Agreement whereby their respective names or
marks are mentioned or language from which the connection of said
names or marks therewith may be inferred or implied, and the parties
further agree not to publish or use such advertising, sales
promotions, press releases, or publicity matters without such prior
written approval. Such approval shall not be unreasonably withheld or
delayed by either party.
20. COMPLIANCE WITH LAWS
The parties hereto shall comply with the provisions of all applicable
federal, state, county and local laws, ordinances, regulations and
codes (including procurement of required permits or certificates) in
their respective performance hereunder, including, but not limited to,
the standards promulgated under the Occupational Safety and Health
Act, Executive Order 11246, as amended, relative to Equal Employment
Opportunity, Section 503 of the Vocational Rehabilitation Act of 1973,
as amended, and Section 402 of the Vietnam Era Veterans Readjustment
Assistance Act of 1974 and all applicable laws, orders and regulations
concerning immigrants and non-discrimination in the employment of
minorities, females, veterans and the handicapped. Each party hereby
agrees to indemnify the other party, and defend the same against, any
claims, loss or damage sustained because of its noncompliance
hereunder.
21. FORCE MAJEURE
Neither LICENSOR nor RESELLER shall be responsible for any delay or
failure in performance of any part of this Agreement to the extent
that such delay or failure is caused by an event beyond its control,
which may include, but not be limited to, fire, flood, explosion, war,
strike, embargo, government requirement, civil or military authority,
and acts of God ("Condition(s)"). If any such Condition(s) occur(s),
the party delayed or unable to perform shall promptly give notice to
the other party and, if such Condition(s) remains at the end of thirty
(30) days thereafter or for more than thirty (30) days within any
ninety (90) day period, the party affected by the other's delay or
inability to perform may elect to suspend this Agreement or part
thereof, and resume performance of this Agreement once the
Condition(s) cease(s), with an option in the affected party to extend
the period of this Agreement up to the length of time the Condition(s)
endured. If such Conditions continue for more than thirty (30) days,
or for more than thirty (30) days within any ninety (90) day period,
either party shall have the right to terminate this Agreement upon
written notice to the other party.
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22. LIABILITY
(a) Notwithstanding anything to the contrary herein, each party
shall indemnify and save the other harmless the other from any
loss or damages (including reasonable attorney's fees)
incurred by the other because of claims, suits, or demands
based on personal injury or death or property damage or third
party claims, suits or demands of any kind, to the extent such
loss or damage is caused by or results from the negligent or
willful acts or omissions of the other or its employees or
agents. The indemnifying party shall receive the full
opportunity and authority to assume the defense of and
settlement of such suits. The indemnified party may
participate in the indemnifying party's defense of such matter
through its own counsel at its own expense if it so elects.
The indemnified party agrees to furnish to the indemnifying
party upon request all information and reasonable assistance
available to the indemnified party for defense against any
such suit, claim, or demand.
(b) LICENSOR will defend, indemnify and hold harmless RESELLER,
and RESELLER's employees, agents and customers, from any
claim, assertion, suit, demand or proceeding ("Claim")
alleging that the SERVICES, or any materials related thereto
(including collateral, marketing materials and manuals
referred to in Section 6(f) herein except to the extent
RESELLER is obligated to indemnify LICENSOR pursuant to 6(f)),
provided by LICENSOR under this Agreement, or use or
possession thereof, constitute, cause or result in direct or
contributory infringement or inducement of infringement,
misappropriation, misuse of any patent, copyright, trademark,
trade secret or other intellectual property or proprietary
right, including any right of privacy or publicity, of any
person or entity. LICENSOR shall pay all damages,
settlements, judgments, fines, penalties and costs (including
court costs and reasonable fees of attorneys) incurred in
connection with the Claim. RESELLER will promptly notify
LICENSOR of the Claim and, at LICENSOR's expense, provide
LICENSOR with all requested information and assistance
reasonably necessary to the defense of the Claim.
(c) LICENSOR makes no warranty, either express or implied
concerning its facilities, products, or SERVICES, including,
without limitation, warranties of merchantability or fitness
for a particular purpose. RESELLER acknowledges that service
interruptions in the telecommunications industry frequently
are due to circumstances beyond a carrier's control and are
difficult to assess as to cause or resulting damages. The
parties agree that LICENSOR shall not be liable beyond the
actual and direct loss to RESELLER arising out of any
mistakes, omissions, interruptions, delays, errors, or defects
in transmission of pages on LICENSOR's Paging System. Except
as otherwise provided in Sections 8 and 10, LICENSOR's
liability in each instance shall not exceed an amount
equivalent to the proportionate charge to RESELLER for the
period of the disruption of
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SERVICES or the amount of five hundred dollars ($500),
whichever is more. LICENSOR shall not be liable for any act
or omission of any other entity furnishing services to
RESELLER. Except with respect to a breach of the provisions
of Section 18, neither party shall be liable for any special,
incidental or other consequential damage or losses, including
without limitation lost profits, or for loss of stored,
transmitted or recorded data, even if it has been advised of
the possibility of such damages, nor shall either party be
liable for any such damages due to the fault or negligence of
the other party or its employees, agents, or representatives.
With regard to breaches of Section 18, the liability of the
breaching party shall not exceed ten thousand dollars
($10,000.00) per breach unless the breach is found to be
knowing and intentional.
(d) All work performed under this Agreement by any party shall be
performed as an independent contractor and not as an agent of
any other party. Persons furnished by the respective parties
shall be solely the employees or agents of the furnishing
party, and shall be under the sole and exclusive direction and
control of such party. They shall not be considered employees
of the other party for any purpose. Each party shall be
responsible for compliance with all laws, rules and
regulations involving its employees or agents, including (but
not limited to) employment of labor, hours of labor, health
and safety, working conditions and payment of wages. Each
party shall also be responsible, for payment of taxes,
including federal, state, and municipal taxes, chargeable or
assessed with respect to its employees or agents, such as
social security, unemployment, workers' compensation,
disability insurance and federal and state income tax
withholding.
(d) RESELLER and LICENSOR each agree to maintain during the
term hereof all insurance and/or bonds required by law or this
Agreement, including, but not limited to (1) Workers'
Compensation and related insurance as prescribed by applicable
law; (2) employer's liability insurance with limits of at least
$100,000 for each occurrence, and (3) comprehensive general
liability insurance including products liability, and, if the
use of motor vehicles is required, comprehensive motor vehicle
liability insurance, each with limits of at least $500,000 for
combined single limit for bodily injury, including death,
and/or property damage. RESELLER and LICENSOR each shall cause
the other to be included as an Additional Insured under their
respective policies and RESELLER's and LICENSOR's appropriate
coverage under such policies shall be primary. RESELLER and
LICENSOR each shall furnish certificates or evidence of the
foregoing insurance indicating the amount and nature of such
coverage, the expiration date of each policy, and stating that
no material change or cancellation of any such policy shall be
effective unless thirty (30) days advanced written notice is
given to the party named as an Additional Insured.
Notwithstanding the above, LICENSOR and RESELLER shall each
have the option, where permitted by law, to self-insure any or
all of the foregoing risks.
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23. ASSIGNMENT
(a) Except as otherwise provided herein, the rights and
obligations of the parties hereunder shall neither be assigned
nor delegated without the prior written consent of the other
party, provided that either may assign or delegate its
respective rights and obligations hereunder, in whole or in
part, to any parent, subsidiary or affiliate of RESELLER or
LICENSOR that was a parent, subsidiary or affiliate at the
time of execution of this Agreement upon notice and without
the consent of the other party. Such assignment shall not
diminish any rights or duties that LICENSOR or RESELLER may
have had prior to the effective date of assignment.
(b) The limitation on assignment does not apply to an assignment
confined solely to moneys due or to become due under this
Agreement, provided that the assigning party gives the other
party to this Agreement thirty (30) days prior written notice
of such assignment. An assignment of moneys shall be void to
the extent that it imposes upon RESELLER or LICENSOR
obligations to the assignee in addition to the payment of such
moneys, or to preclude RESELLER or LICENSOR from dealing
solely and directly with the other in all matters pertaining
hereto, including negotiation of amendments or settlement of
amounts due. If RESELLER or LICENSOR makes such an
assignment, it is and shall remain responsible for payment
hereunder.
(c) Either party may transfer this Agreement as part of a merger
or upon the sale of all or substantially all of that party's
business on notice to the other party whose consent shall not
be required unless the purchaser is a direct competitor of the
party receiving the notice, in which case the party receiving
the notice shall have the option to terminate this Agreement
on ninety (90) days' notice.
24. TAXES
RESELLER shall be liable for and shall reimburse LICENSOR for actual
payments of any retailers' excise taxes, state and local sales and use
taxes, or any similar taxes as applicable, with respect to
transactions under this Agreement. Taxes payable by RESELLER shall be
separately stated in LICENSOR's invoices and shall not be included In
LICENSOR's prices. RESELLER shall not be liable for any tax for which
a valid exemption certificate acceptable to the applicable state or
local taxing authorities is furnished by RESELLER to LICENSOR.
25. RECORDS
(a) LICENSOR shall maintain complete and accurate records of all
amounts billable to and payments made by RESELLER hereunder,
in accordance with generally accepted accounting practices.
LICENSOR shall retain such records
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for a period of three (3) years from the date of rendering of
SERVICES covered by this Agreement. LICENSOR agrees to
provide to RESELLER supporting documentation concerning any
disputed amount of invoice within thirty (30) days after
RESELLER provides written notification of the dispute to
LICENSOR along with RESELLER's documentation supporting any
disputed amount. LICENSOR shall retain such records for three
(3) years from date of invoice.
(b) RESELLER's original Subscriber records shall be and remain the
property of RESELLER. LICENSOR shall be entitled at
LICENSOR's expense during normal business hours to make copies
of such records directly relating to information verifying the
number of Subscribers or compliance by RESELLER to the terms
of this Agreement.
26. RIGHT OF ACCESS
LICENSOR and RESELLER shall each permit reasonable access during
normal working hours to its facilities in connection with work
hereunder. No charge shall be made for such visits. It is agreed
that reasonable prior notification shall be given when access is
required and that access is subject to compliance with the facility
rules of conduct and security procedures of the visited property.
27. TERMINATION
(a) RESELLER may terminate this Agreement with or without cause,
upon thirty (30) days' written notice to LICENSOR.
Termination shall not affect any order placed prior to the
date of termination,
(b) Either party may terminate this Agreement, effective
immediately, without liability for said termination, upon
written notice to the other party, if any of the following
events occur:
(1) The other files a voluntary petition in bankruptcy;
(2) The other is adjudged bankrupt;
(3) A court assumes jurisdiction of the assets of the
other under a federal reorganization act;
(4) A trustee or receiver is appointed by a court for all
or a substantial portion of the assets of the other;
(5) The other becomes insolvent or suspends its business;
(6) The other makes an assignment of its assets for the
benefit of its creditors, except as required in the
ordinary course of business;
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(c) Either party may immediately terminate this Agreement for a
material breach or default of any of the terms, conditions or
covenants of this Agreement by the other, provided that such
termination may be made only following the expiration of a
thirty (30) day period during which the other party has failed
to cure such breach after having been given written notice of
such breach.
(d) In the event of a material breach or default by LICENSOR,
provided that LICENSOR has failed to cure the same within
thirty (30) days of its receipt of RESELLER's written notice
of default, or if said default cannot be cured within a thirty
(30) day period, LICENSOR has failed to commence and
diligently pursue curing such a default, RESELLER shall be
under no obligation to continue to provide LICENSOR's SERVICES
to its Subscribers, and RESELLER shall have the right to
assign those Subscribers to another paging service.
28. DISPUTE RESOLUTION
(a) The parties desire to resolve certain disputes, controversies
and claims arising out of this Agreement without litigation.
Accordingly, except in the case of (i) a suit, action or
proceeding to compel a party to comply with its obligations to
indemnify the other party pursuant to this Agreement or (ii) a
suit, action or proceeding to compel either party to comply
with the dispute resolution procedures set forth in this
Section 27, the parties agree to use the following alternative
procedure as their sole remedy with respect to any dispute,
controversy or claim arising out of or relating to this
Agreement or its breach. The term "Arbitrable Dispute" means
any dispute, controversy or claim to be resolved in accordance
with the dispute resolution procedure specified in this
Section 27.
(b) At the written request of a party, each party shall appoint a
knowledgeable, responsible representative to meet and
negotiate in good faith to resolve any Arbitrable Dispute
arising under this Agreement. The parties intend that these
negotiations be conducted by nonlawyer, business
representatives. The discussions shall be left to the
discretion of the representatives. Upon written agreement,
the representatives may utilize other alternative dispute
resolution procedures such as mediation to assist in the
negotiations. Discussions and correspondence among the
representatives for purposes of these negotiations shall be
treated as confidential information developed for purposes of
settlement, shall be exempt from discovery and production, and
shall not be admissible in the arbitration described below or
in any lawsuit without the concurrence of all parties.
Documents identified in or provided with such communications,
which are not prepared for purposes of the negotiations, are
not so exempted and may, if otherwise admissible, be admitted
in evidence in the arbitration or lawsuit.
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(c) If the negotiations do not resolve the Arbitrable Dispute
within sixty (60) days of the initial written request, the
Arbitrable Dispute shall be submitted to binding arbitration
by a single arbitrator pursuant to the Commercial Arbitration
Rules of the American Arbitration Association. A party may
demand such arbitration in accordance with the procedures set
out in those rules. Discovery shall be controlled by the
arbitrator and shall be permitted to the extent set out in
this Section. Each party may submit in writing to a party,
and that party shall so respond, to a maximum of any
combination of thirty-five (35) (none of which may have
subparts) of the following: interrogatories, demands to
produce documents and requests for admission. Each party is
also entitled to take the oral deposition of one (1)
individual of another party. Additional discovery may be
permitted upon mutual agreement of the parties. The
arbitration hearing shall be commenced within sixty (60) days
of the demand for arbitration and the arbitration shall be
held in Dallas, Texas. The arbitrator shall control the
scheduling so as to process the matter expeditiously. The
parties may submit written briefs. The arbitrator shall rule
on the Arbitrable Dispute by issuing a written opinion within
thirty (30) days after the close of hearings. The times
specified in this Section may be extended upon mutual
agreement of the parties or by the arbitrator upon a showing
of good cause. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction.
(d) Each party shall bear its own cost of these procedures. A
party seeking discovery shall reimburse the responding party
the cost of production of documents (to include search time
and reproduction time costs). The parties shall equally share
the fees of the arbitration and the arbitrator.
29. NOTICES
Any notice or demand given under the terms of this Agreement or
pursuant to statute shall be in writing and shall be given or made by
telegram, facsimile transmission, certified or registered mail,
express mail or other overnight delivery service or hand delivery,
proper postage or other charges paid and addressed or directed to the
respective parties as follows;
To RESELLER:
GTE Communications Corporation
0000 X. X'Xxxxxx Xxxxxxxxx
Xxxx Tower, 14th Floor
Xxxxxx, Xxxxx 00000
Attention: Director - Contract Management (HQL06C43)
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To RESELLER's LEGAL:
GTE Communications Corporation
0000 X. X'Xxxxxx Xxxxxxxxx
Xxxx Tower, 14th Floor
Xxxxxx, Xxxxx 00000
Attention: Legal Department (HQL06B62)
To LICENSOR:
PageMart Wireless, Inc.
0000 Xxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Vice President - Strategic Alliance Business Unit
Such notice or demand shall be deemed to have been given or made when
actually received or the third business day following the day it is
dispatched after being sent, whichever occurs first.
The address for notice set out above may be changed at any time by
giving thirty (30) days prior written notice in the manner above.
30. NONWAIVER
Either party's failure to enforce any of the provisions of this
Agreement and/or any purchase order, or to exercise any option
hereunder, shall in no way be construed as a waiver of such
provisions, rights, or options, or in any way be deemed to affect the
validity of this Agreement or any purchase order.
31. SEVERABILITY
Should any material part of this Agreement for any reason be declared
invalid by order of any court or regulatory agency, the parties shall
meet and determine whether such action shall not affect the validity
of any remaining portion, which shall remain in force and effect as if
this Agreement had been executed with the invalid portion eliminated,
or shall require renegotiation or termination.
32. SECTION HEADINGS
The headings of the sections herein are inserted for convenience only
and are not intended to affect the meaning or interpretation of this
Agreement.
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33. SURVIVAL OF OBLIGATIONS
The respective obligations of LICENSOR and RESELLER under this
Agreement which by their nature would continue beyond the termination,
cancellation or expiration hereof, shall survive termination,
cancellation or expiration hereof.
34. CHOICE OF LAW
The construction, interpretation and performance of this Agreement
shall be governed by and construed in accordance with the domestic
laws of the state of Texas.
35. ENTIRE AGREEMENT
This Agreement and the exhibits hereto constitute the entire agreement
between LICENSOR and RESELLER. No modifications shall be made to this
Agreement unless in writing and signed by appropriate representatives
of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement through
their authorized corporate representatives.
GTE COMMUNICATIONS PAGEMART WIRELESS, INC.
CORPORATION
By: /s/ XXXXXX X. XXXXXXX for By: /s/ XXXXXXX X. XXXX
Xxx Xxxxx
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxx
Title: AVP-Billing and Cost Mgmt. Title: Executive Vice President
Date: 12/30/97 Date: 12/19/97
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