EXHIBIT 10.12
XXXXX
BULK RESELLER AGREEMENT
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Agreement No.:
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AGREEMENT dated as of , 1998, between Skysite Communications
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Corporation, a Delaware corporation, ("SKYSITE") with offices at 00000 Xxxxxxx
Xxx, Xxxxx Xxxxxxxxx, XX 00000 and XXXXX Company, a New York general partnership
("XXXXX"), with offices at 000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx,
Xxxxxxxx 00000.
WHEREAS, XXXXX is engaged in providing shared data radio-based
communications network services as authorized by the Federal Communications
Commission; and
WHEREAS, SKYSITE currently provides certain software and other value added
services in the transportation, oil & gas, exploration and media marketplace,
and
WHEREAS, SKYSITE desires to market XXXXX' services in conjunction with the
services which it provides to the transportation, oil & gas, exploration and
media marketplace; and
WHEREAS, XXXXX and SKYSITE desire a non-exclusive relationship to pursue
opportunities within the transportation, oil & gas, exploration and media
marketplace; and
WHEREAS, XXXXX desires to provide, and SKYSITE desires to remarket XXXXX'
services subject to the terms and conditions hereof.
SKYSITE AND XXXXX AGREE AS FOLLOWS:
1. DEFINITIONS - For purposes of this Agreement:
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(a) "Market" shall mean all commercial non-users of XXXXX Services. Such
applications include without limitation transportation, oil & gas,
exploration and media.
(b) "FCC" shall mean the Federal Communications Commission.
(c) "Initial Term" shall mean the period commencing on the date hereof and
ending thirty-six (36) months thereafter.
(d) "Prices" shall mean XXXXX prices, as set forth in Attachment A of
Exhibit I attached hereto.
(e) "Services" shall mean XXXXX' shared data radio-based communications
network services as presently constituted and as may be improved and
enhanced from time to time hereafter and as further defined in
Paragraph 2 of Exhibit I.
(f) "Territory" shall mean the United States and any other countries or
jurisdictions where the Services are provided by XXXXX in accordance
with applicable legal and regulatory requirements.
2. SCOPE OF AGREEMENT
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XXXXX hereby agrees to establish a non-exclusive marketing relationship
with SKYSITE as follows:
(a) XXXXX hereby licenses SKYSITE to be a non-exclusive remarketer of
XXXXX Services within the Market and within the Territory, in
accordance with the XXXXX Airtime User Agreement, Exhibit I, attached
hereto.
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(b) SKYSITE shall remarket the Services to SKYSITE's clients primarily in
the transportation, oil & gas, exploration and media marketplace.
(c) SKYSITE shall develop and implement a non-exclusive marketing plan to
facilitate the remarketing of the Services by SKYSITE. Such marketing
plan may include, without limitation:
(i) joint development of product literature describing the Services
and their capabilities;
(ii) joint attendance at trade shows, conferences and related events
within the marketplace;
(iii) joint presentations to prospective clients of the Services;
(iv) joint press releases, advertising and participation at the
XXXXX xxxxx at certain trade shows;
(v) joint marketing projections for the Services;
(vi) joint development activities with terminal hardware vendors;
(vii) previews of XXXXX' future technology and business plan.
(d) Each party may use the other's name and trademarks within the Market
and Territory in sales literature, press releases and other
promotional media subject to prior approval.
(e) SKYSITE and XXXXX agree not to publish or use advertising, sales
promotions or any publicity matters, including the mention of the
existence of this Agreement, without prior written consent, which
consent will not be unreasonably withheld.
3. SKYSITE'S MARKETING AND DEVELOPMENT OBLIGATIONS
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(a) SKYSITE shall be responsible for insuring that all users to whom it
remarkets XXXXX' Services are licensed by the FCC prior to use of
XXXXX' Services. XXXXX shall, however, provide administrative and
consultative support to SKYSITE to facilitate the licensing process.
(b) During the term of this Agreement, SKYSITE will use its best efforts
to meet the following performance milestones within the timeframes
indicated below:
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TIME 1998 1999 2000
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Number of SKYSITE Subscriber 1,000 3,000 5,000
Units Using XXXXX Services by
Year End
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4. PRICING
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(a) SKYSITE will pay XXXXX the Prices set forth in Attachment A of Exhibit
I, attached hereto.
(b) The Prices in Attachment A of Exhibit I shall not be increased by
XXXXX during the twelve (12) month period commencing on the date of
this Agreement. Thereafter, the Prices may be increased only upon
ninety (90) days' prior written notice to SKYSITE, provided that the
Prices may be increased not more often than once during any
consecutive twelve (12) month period and by not more than the
percentage increase in the U.S. Department of Labor, Bureau of Labor
Statistics, Consumer Price Index for all Urban Consumers, U.S. City
Average, All Items, 1967 = 100 for the 12-month period immediately
preceding such price increase notification. SKYSITE may discontinue
the services noted for increase within the ninety (90) day notice
period. Otherwise, the new price shall become effective on the date
specified.
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(c) The Prices, terms, warranties and benefits granted by XXXXX to SKYSITE
hereunder are and shall remain comparable to the Prices, terms,
warranties and benefits offered, or to be offered, by XXXXX to any
other bulk reseller of the Services for sale to commercial customers
with similar roles and responsibilities. If XXXXX makes any such more
favorable Prices, terms, warranties or benefits available to any other
such party, XXXXX shall promptly notify SKYSITE to such effect, and
such more favorable Prices, terms, warranties and/or benefits shall be
made available to SKYSITE as of the date first made available to any
other party.
(d) The Prices in Exhibit I shall not be increased by XXXXX during the
twelve (12) month period commencing on the date of this Agreement.
Thereafter, the Prices may be increased only upon ninety (90) days'
prior written notice to SKYSITE, provided that the Prices may be
increased not more often than once during any consecutive twelve (12)
month period and by not more than the percentage increase in the U.S.
Department of Labor, Bureau of Labor Statistics, Consumer Price Index
for all Urban Consumers, U.S. City Average, All Items, 1967 = 100 for
the 12-month period immediately preceding such price increase
notification. SKYSITE may discontinue the services noted for increase
within the ninety (90) day notice period. Otherwise, the new price
shall become effective on the date specified.
5. BILLING AND PAYMENTS
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(a) SKYSITE will be responsible for billing to SKYSITE's end user customers
for all products and services.
(b) XXXXX will provide SKYSITE with the information to xxxx SKYSITE's end
user customers via a monthly invoice to SKYSITE within ten (10) days'
after the end of the monthly billing period.
(c) Payment to XXXXX will be due within thirty (30) days of invoice to
SKYSITE
6. ORDERING
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SKYSITE shall order the Services by executing and delivering to XXXXX an
order form in the format set forth on Attachment B of Exhibit I, the XXXXX
Airtime User Agreement. XXXXX shall process all such orders no later than
three (3) days' after receipt of order.
7. TERM / TERMINATION
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(a) Except as otherwise provided herein, this Agreement shall be in effect
for the Initial Term. This Agreement shall automatically continue after
the Initial Term until terminated by either SKYSITE or XXXXX upon
twelve (12) months' written notice.
(b) Either party may terminate this Agreement upon six (6) months' written
notice for failure of the other party to meet the applicable
performance levels set forth in Paragraph 3(b). Should this contract be
terminated pursuant to this Paragraph, XXXXX shall continue to provide
XXXXX communication services to SKYSITE's then current users of the
Services, provided (i) such users sign the then current standard XXXXX
Airtime User Agreement, or (ii) an appropriate new remarketing
agreement is signed between XXXXX and SKYSITE within thirty (30) days.
(c) Notwithstanding anything to the contrary contained herein, either
SKYSITE or XXXXX may terminate this Agreement (i) upon any material
breach by the other of its obligations under this Agreement, or (ii) if
the other shall dissolve or commit an act of bankruptcy or become
insolvent, by sending such party written notice of termination which
shall state the nature of the breach. Such notice shall be effective
thirty (30) days following the date hereof, unless such breach shall
have been remedied during such thirty (30) day period. Notwithstanding
the foregoing, this Agreement shall terminate immediately if the
authorization held by XXXXX is revoked by the FCC.
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8. DEFAULT AND REMEDIES
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If SKYSITE fails to make any payment of any sum due after thirty (30) days,
XXXXX may add a service charge at the maximum rate permitted by applicable
law. Such additional charge shall be due and payable upon receipt of
invoice.
If SKYSITE fails to make any payment of any sum due or fails to perform as
required by any other provision hereunder, and continues in such failure
for fifteen (15) days' after written notice has been sent by XXXXX to
SKYSITE, SKYSITE shall be deemed in default under this Agreement.
In the event of default, XXXXX has the right to immediately terminate this
Agreement, retain all payments made hereunder, and deny SKYSITE and its
customers any service provided under this Agreement by or through the XXXXX
Network or Systems. Each and all of the rights and remedies of XXXXX
hereunder are cumulative to and not in lieu of each and every other such
right and remedy.
There will be a $50.00 reactivation fee for customers who wish to re-
establish service once XXXXX has suspended or terminated service.
Failure or delay on the part of XXXXX or SKYSITE to exercise any right,
remedy, power or privilege hereunder shall not operate as a waiver thereof.
A waiver, to be effective, must be in writing and signed by the party
making the waiver. A written waiver of a default shall not operate as a
waiver of any other default or of the same type default on a future
occasion.
9. FORCE MAJEURE
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XXXXX and its subcontractors do not assume and shall have no liability
under this Agreement for failure to provide, or delay in providing services
due directly or indirectly to causes beyond the control of XXXXX or its
subcontractors including, but not restricted to, acts of God, or
governmental entities, or of the public enemy, or of SKYSITE, strikes, or
unusually severe weather conditions.
10. TRAINING AND TECHNICAL SUPPORT
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(a) XXXXX shall make available to SKYSITE, at no charge, reasonable initial
training on the use of XXXXX Services.
(b) XXXXX shall continue to provide SKYSITE, at no charge, with technical
assistance performed by competent XXXXX employees in connection with
ongoing use of the Services by SKYSITE and its customers. Such
assistance shall include, without limitation, telephone consultation,
updates relating to changes and enhancements to the Services and
diagnostic services.
11. THIRD PARTY LIABILITY
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SKYSITE agrees to inform its clients and others to whom it remarkets XXXXX'
services, of the applicable terms and conditions of this Agreement, as
expressed in Exhibit III hereof, and warrants that it will not remarket the
Services to anyone without obtaining a signed Agreement which contains the
essence of XXXXX' disclaimer of all third party liability.
12. CONFIDENTIAL INFORMATION
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(a) SKYSITE and XXXXX agree that they will not disclose each other's
confidential information and trade secrets relative to data, software,
documentation, client names and addresses, and all other proprietary
information to persons other than employees of each other required to
have such disclosure for the furtherance of the purposes of this
Agreement. Both SKYSITE and XXXXX shall take all steps reasonably
calculated to protect such information from unauthorized disclosure.
This obligation shall survive the termination of this Agreement.
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(b) Nothing in this Agreement shall cause either party to have any rights
or licenses in any inventions, patents, trade secrets, trademarks
and/or copyrights of the other relating to the subject matter of this
Agreement.
13. INDEPENDENT RELATIONSHIP
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SKYSITE and XXXXX specifically disclaim any partnership relationship, and
this Agreement shall in no way be construed to make SKYSITE and XXXXX
partners or joint venturers. For the purposes of this Agreement, SKYSITE
and XXXXX shall be deemed to be independent contractors. Furthermore, in
the event SKYSITE elects to sell XXXXX services to the U.S. Government,
U.S. State or Local or any foreign Government, or to a prime contractor
selling to a Government customer, SKYSITE does so at their own option and
risk and agrees not to obligate XXXXX as a subcontractor or otherwise to
such customers. SKYSITE remains solely and exclusively responsible for
compliance with all statutes, regulations, and clauses governing sales to
the U.S. Government, State or Local or any foreign Government, or to a
prime contractor selling to a Government customer. XXXXX makes no
representations, certifications, or warranties whatsoever with respect to
the ability of its goods, or services, or prices to satisfy any such
statutes, regulations, or clauses.
14. EXCLUSIVE REMEDY
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In the event of any failure or delay attributable to the fault of XXXXX or
its subcontractors, or for breach of the warranty, SKYSITE's sole remedy
shall be limited to a refund of SKYSITE's charges for the affected services
during the time of such failure or delay. SKYSITE agrees, however, that no
refund shall be made for a single failure or delay which does not exceed
one hundred dollars ($100.00).
15. LIMITATION OF LIABILITY
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(a) Neither party shall be liable for special, incidental, indirect or
consequential damages under this Agreement, even if such party has
been advised of the possibility of such damages.
(b) Except for SKYSITE's obligation to pay amounts owing under this
Agreement, SKYSITE's and XXXXX' total liability for any other claim
arising out of or in any way connected with this Agreement and the
sole remedy regardless of the form of action (whether in contract,
tort or otherwise) shall be actual damages not to exceed $50,000.
16. INTEGRATION
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This Agreement is the entire agreement between the parties with respect to
the subject matter hereof, and no alteration, modification or
interpretation hereof shall be binding unless in writing signed by both
parties.
17. NOTICES
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All notices, demands, offers, elections, requests or other communications
required or permitted by this Agreement shall be in writing and shall be
sent by prepaid registered or certified mail, return receipt requested, and
addressed to the parties at the addresses set forth below or to such other
address as shall, from time to time, be supplied by any party to the other
party by like notice, and shall be deemed given on the date mailed. All
such notices shall be addressed to persons listed below:
If to XXXXX: If to SKYSITE:
Sr. Vice President Attn: Contract Manager
Distribution & Operations --------------------------
XXXXX Company Title:
000 Xxxxxxxxxxxxx Xxxxxxx-Xxxxx 500 -------------------------
Xxxxxxxxxxxx, Xxxxxxxx 00000 Skysite Communications Corporation
00000 Xxxxxxx Xxx
Xxxxx Xxxxxxxxx, XX 00000
Copy:
Xxxxxxx X. Xxxxxxxxx, XX
Secretary and General Counsel
XXXXX Company
000 Xxxxxxxxxxxxx Xxxxxxx-Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
18. NO ASSIGNMENTS
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This Agreement shall be binding on the successors and permitted assigns of
the parties hereto. Neither party shall assign this Agreement without the
other's prior written consent.
19. SEVERABILITY
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If any provision of this Agreement or the application thereof to any party
or circumstance shall be determined by any court of competent jurisdiction
to be invalid and unenforceable to any extent, the remainder of this
Agreement or the application of such provision to such person or
circumstance, other than those as to which it is so determined invalid or
unenforceable, shall not be affected thereby, and each provision hereof
shall be valid and shall be enforced to the fullest extent permitted by
law.
20. APPLICABLE LAW
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This Agreement shall be construed and enforced in accordance with the laws
of the state of Illinois.
21. COUNTERPARTS
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This Agreement may be executed in several counterparts, each of which shall
constitute the same instrument.
22. HEADINGS
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The headings in this Agreement are solely for convenience of reference and
shall not affect its interpretation.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first written.
XXXXX COMPANY Skysite Communications Corporation
By: By: /s/ Xxxxxxx Xxxxxxx
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(AUTHORIZED SIGNATURE) (AUTHORIZED SIGNATURE)
Xxxxxxx Xxxxxxx
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(TYPE OR PRINT NAME) (TYPE OR PRINT NAME)
CEO
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(TITLE) (TITLE)
23 Feb 1998
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(DATE) (DATE)
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