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ARCH NATIONWIDE PAGING
RESELLER AGREEMENT
AGREEMENT, dated as of the 7th day of April, 1995 by and between Arch
Nationwide Paging, a Division of Arch Communications Enterprises, Incorporated
("ANP") and Mercury Cellular Telephone Company, a corporation ("Reseller").
W I T N E S S E T H :
WHEREAS, ANP has established an expanded area paging system network for the
purpose of providing nationwide paging services ("Paging Services"); and
WHEREAS, Reseller wishes to obtain from ANP and resell to subscribers
solicited by Reseller ("Reseller's Subscribers") Paging Services in the
Reseller's territory as identified on Attachment A ("Territory") ,
NOW THEREFORE, the parties agree as follows:
1. Purchase and Resale of Paging Service.
1.1 Reseller shall purchase Paging Services from ANP and shall
resell Paging Services to Reseller's Subscribers, upon and
subject to the terms and conditions set forth in this
agreement.
1.2 From time to time Reseller can request from ANP, and ANP shall
assign to Reseller, numbers by which Reseller's Subscribers
can obtain Paging Service ("Paging Numbers"); provided
however, that Paging Numbers are available, as determined
solely by ANP.
2. Term and Termination.
2.1 Unless otherwise terminated in accordance with other
provisions of this agreement, (i) the initial term of this
agreement shall commence on the date set forth on the first
page hereof ("Commencement Date") and shall continue for one
(1) year and (ii) the term shall continue after the initial
term for consecutive renewal terms of (1) year each commencing
on the anniversary of the Commencement Date unless terminated
by either party at the end of the initial term or any renewal
term upon at least ninety (90) days' prior notice.
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2.2 If either party commits a breach of this agreement and has not
cured such breach within thirty (30) days after notice thereof,
this agreement shall terminate; provided, however, that a
breach of this agreement by Reseller under 4.1 hereof must be
cured within ten (10) days after notice thereof or this
agreement shall terminate.
2.3 This agreement shall terminate immediately if (i) either party
becomes insolvent, bankrupt or makes an assignment for the
benefit of creditors; or (ii) either party applies for or
consents to the appointment of a trustee or receiver, or a
trustee or receiver is appointed for either party; or (iii)
bankruptcy, insolvency or liquidation or other proceedings are
commenced by or against either party, and such appointment or
proceedings are not dismissed within thirty (30) days after
such appointment or commencement.
2.4 Immediately upon the expiration or termination of this
agreement, pursuant to section 2.1 hereof, Reseller shall (i)
cease reselling new Paging Services from ANP; (ii) cease using
ANP Trademarks; (iii) deliver to ANP advertising and
promotional material utilizing ANP Trademarks and ANP
confidential and proprietary information of any description;
and (iv) immediately begin to negotiate in good faith with ANP
for the purchase of Reseller's Subscriber agreements of the
subscribers who have obtained Paging Services from ANP.
2.5 If this agreement is terminated by ANP because of Reseller's
breach pursuant to Sections 2.2 or 2.3 hereof, Reseller will
immediately assign to ANP all agreements with Resellers'
Subscribers receiving Paging Service, and deliver to ANP a
complete list of all subscribers including names, addresses,
code number, number of paging units and monthly rates and pay
to ANP all sums received from Subscribers for Paging Service
from ANP after termination of this agreement, as a liquidated
settlement of this agreement.
3. Duties of Reseller.
3.1 Either party shall solicit subscribers to the Paging Service
from persons other than persons or entities currently
receiving Paging Service pursuant to arrangements with the
other party or any other reseller for the other party.
However, either party can enter into agreements for and
provide Paging Services to the other party's subscribers if
such subscribers initiate the solicitation. If Reseller
solicits and resells Paging Service to any subscriber already
receiving Paging Service from ANP or another reseller, then,
in addition
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to any other remedies available to ANP, immediately upon
notice by ANP to Reseller, Reseller will terminate any
agreement with such subscriber and cease providing Paging
Service. Moreover, in the event that ANP, from time to time,
enters into nationwide agreements (a "Corporate Agreement")
with various corporations ("Contract Clients"), Reseller
herewith agrees to resell Paging Service to Contract Clients
under the terms of the applicable Corporate Agreement.
3.2 Reseller shall enter into written contracts with Reseller's
Subscribers only on a form which ANP has previously approved
in writing. The form of contract shall include the following
language:
"Subscriber shall obtain no proprietary interest in
any Paging Number assigned for its use and any Paging
Number can be changed at any time upon notice by
Reseller."
"LIMITATION OF LIABILITY
THE LIABILITY OF MERCURY CELLULAR & PAGING
(RESELLER'S NAME) AND OF ANY SUPPLIER OF PAGING
SERVICE, INCLUDING BUT NOT LIMITED TO ANY FAILURE OF
OR DISRUPTION OF PAGING SERVICE, REGARDLESS OF
WHETHER THE CLAIM IS BASED ON BREACH OF CONTRACT,
TORT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO AN
AMOUNT EQUAL TO THE MONTHLY BILLING PAYABLE BY
SUBSCRIBER IN THE MONTH IN WHICH SUCH CLAIM OR CLAIM
OR ACTION ARISES. IN NO EVENT SHALL MERCURY CELLULAR
AND PAGING (RESELLER'S NAME) OR ANY SUPPLIER OF
PAGING SERVICE,(INCLUDING BUT NOT LIMITED TO ARCH
NATIONWIDE PAGING) BE LIABLE FOR ANY SPECIAL OR
CONSEQUENTIAL DAMAGES."
3.3 Reseller shall be solely responsible for billing and
collecting all sums due from Reseller's Subscribers for
Paging Service and shall collect and pay any and all federal,
state or local taxes of any description imposed upon Paging
Service.
3.4 Reseller shall provide to ANP, not later than January 31 and
June 30 of each calendar year, a good faith estimate of the
quantity and geographic distribution of Paging Numbers
Reseller shall require during the calendar year.
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3.5 During the term of this Agreement, ANP grants to Reseller, if
Reseller decides to accept, a limited license to advertise and
promote Paging Service and to use the trademarks and trade
names set forth in Attachment B hereto or as ANP may hereafter
deliver to Reseller ("Trademarks"). Prior to any use by
Reseller of a Trademark in any advertising or promotional
materials, Reseller shall submit the same to ANP for its prior
approval. Reseller's license to use ANP Trademarks is limited
as set forth in this agreement and shall terminate upon
expiration or termination of this agreement, or upon notice by
ANP during the term of this agreement.
3.6 In the sole discretion of ANP and for consideration acceptable
to ANP, ANP may from time to time allow Reseller to advertise
and/or promote Paging Services under Reseller's trademarks and
trade names; provided, however, that Reseller is not in
violation of any state or federal law governing the reselling
of another's service under Reseller's trademarks and trade
names. Absent ANP's prior written approval and acceptable
consideration, Reseller shall not market or advertise the
Paging Services under any trade names or trade marks other
than the Trademarks, if the Reseller desires to use the
Trademarks.
3.7 Reseller can sell or lease equipment to Reseller's
Subscribers, provided that the equipment is type-accepted by
the FCC, is compatible with the frequencies and signaling
formats of the Paging Service and is pre-approved by ANP. If
Reseller supplies equipment to Reseller's Subscribers,
Reseller shall keep the equipment in good operating condition.
3.8 Reseller shall be responsible for handling all Reseller's
Subscriber complaints and shall promptly advise ANP of all
Subscriber Paging Service complaints received by reseller.
3.9 In performing its duties hereunder, Reseller shall comply with
all applicable federal, state and local laws, and rules and
regulations of all ANP policies communicated to Reseller which
are now or hereafter in effect. Reseller shall have and
maintain all necessary federal, state or local government
permits or certificates necessary for providing Paging Service
hereunder.
3.10 During the term hereof and after the expiration or termination
of this agreement, Reseller shall maintain at its principal
office for a period of three (3) years complete and accurate
books of accounts and records
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including all documents and correspondence related to (i)
Reseller's Subscribers' names, addresses, assigned Paging
Numbers and billing history; (ii) Paging Service advertising
and publicity and use of ANP Trademark; (iii) subscriber
contacts and solicitations; (iv) Reseller's Subscriber
applications and contracts; (v) Reseller's Subscriber
complaints; (vi) payments by Reseller to ANP; (vii) agreement
with and payments to third parties in connection with this
agreement; (viii) Reseller's licenses, authorizations and
compliance with the requirements of any governmental agency;
and (ix) all other documents or records in connection with
Reseller's performance of its duties hereunder. ANP shall
have the right to inspect and make copies of only Reseller's
books of account and records that specifically are related to
the Paging Services provided by ANP during normal working
hours and upon reasonable notice by ANP.
3.11 During the term hereof and after the expiration or termination
of this agreement, Reseller shall keep confidential and not
disclose, transmit or otherwise disseminate to any third party
and proprietary information concerning ANP obtained by
Reseller. This agreement is proprietary information
concerning ANP. During the term hereof and after the
expiration or termination of this Agreement, ANP shall keep
confidential and not disclose, transmit or otherwise
disseminate to any third party any information concerning
Reseller, its customer base, its books of account and records
and other information received by ANP from Reseller. All such
information shall be considered as proprietary information.
3.12 Reseller and ANP shall conduct its business hereunder and
cause its employees to act in an ethical, responsible and
legal manner; and Reseller and its agents and employee shall
not commit any act or omissions which could adversely affect
ANP's and Reseller's name, reputation or ability to conduct
its business.
4. Paging Service Charges.
4.1 Reseller shall pay to ANP, within fifteen (15) days of
invoicing by ANP, all sums due ("ANP Service Charges") as set
forth in Attachment C hereto.
Time of payment is of the essence.
4.2 ANP can change (i) ANP Service Charges as set forth in
Attachment C hereto; or (ii) policies relating to subscribers
or Paging Service at any time, provided that
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ANP shall give Reseller at last thirty (30) days' prior
notice thereof.
4.2 (a) If ANP changes any service charges as set forth in
Attachment C hereto or any monetary policies relating
to subscribers or Paging Services, then Reseller has
thirty (30) days from notice of such change in which
to terminate this agreement without any further
obligation.
5. Duties of ANP.
5.1 ANP shall provide Paging Service to Reseller's Subscribers,
provided (i) Paging Service is generally available, (ii)
Reseller's Subscribers use equipment with frequencies and
signaling formats compatible with the Paging Service and (iii)
Reseller is not in breach of this agreement.
5.2 ANP shall not be liable for any interruption or failure of
Paging Services caused by or resulting from (i) any
incompatibility of Reseller's Subscribers' equipment, (ii) the
termination of this agreement by ANP because of Reseller's
breach pursuant to Section 2 hereof or (iii) any act or event
beyond the reasonable control of ANP including but not limited
to wind, fire, flood, act of God, riot, war, strike or labor
dispute, governmental acts or orders or any other similar or
dissimilar act or event not within the reasonable control of
ANP.
5.3 ANP will not solicit for its Paging Se:vice any of Reseller's
Subscribers actually known to ANP; provided, however that ANP
can enter into agreements for and provide Paging Services to
Reseller's Subscribers who initiate the solicitation with ANP.
5. ANP Rights of First Negotiation and Refusal.
6.1 Except as otherwise set forth herein, if during the term of
this agreement and for a period of thirty (30) days after its
expiration or termination Reseller desires to sell Reseller's
Subscriber agreements or lists of Reseller's subscribers that
have Paging Service provided by ANP (together with other
rights related thereto, the "Subscriber Base"), ANP shall have
the right of exclusive negotiation for the purchase of the
Subscriber Base. The parties shall negotiate in good faith for
the purchase of Reseller's Subscriber Base for a period of ten
(10) days from the date of Reseller's notification.
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7. Indemnity and Insurance.
7.1 Reseller shall indemnify, defend and hold harmless ANP, its
officers, directors, agents, employees, successors and assigns
from and against any and all loss, claim, damage or expense
(including reasonable attorneys fees and costs) arising out of
or resulting from (i) any breach by Reseller of this agreement
or (ii) claims by any of Reseller's Subscribers or any other
third party in connection with Reseller's performance pursuant
to this agreement. ANP shall notify Reseller of any such
claims, action or proceeding and Reseller shall promptly
undertake the defense thereof. ANP can, at its election and
at its own costs, participate in the defense thereof.
7.2 Reseller shall maintain in force, at its sole cost and
expense, (i) public liability insurance with limits of not
less than $3,000,000 in the aggregate for personal injury
(including death); and (ii) errors and omissions, property
damage and contractual liability insurance, each in an amount
not less than $1,000,000 in the aggregate. Any deductible
limits on such insurance shall not exceed one (1%) percent of
the coverage amounts. Reseller shall provide ANP with a
certificate from an insurance carrier acceptable to ANP
evidencing such insurance, which shall name ANP as an
additional insured (provided such additional insured status
does not result in an additional cost to Reseller) and shall
provide that such insurance cannot be modified or cancelled
except on at least ten (10) days' prior notification to
Reseller and ANP. All such insurance shall be primary and
noncontributory as to any other valid and collectible
insurance and shall contain a waiver of subrogation
endorsement.
8. ANP Liability.
8.1 ANP shall have no liability to Reseller or any of Reseller's
Subscribers in connection with Paging Service except as
specifically set forth in this agreement or otherwise in
Paging Service policies communicated to Reseller.
8.2 WHETHER OR NOT LIMITED BY ANP SUBSCRIBER OR PAGING SERVICE
POLICIES, ANP'S LIABILITY TO RESELLER SHALL BE LIMITED TO
ACTUAL DAMAGES DIRECTLY RESULTING FROM BREACH BY AND OF THIS
AGREEMENT AND ANP SHALL HAVE NO LIABILITY TO RESELLER FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY DESCRIPTION ARISING
FROM ANY BREACH, OR FROM ANY ACT OF PROVIDING OR FAILING TO
PROVIDE PAGING SERVICE REGARDLESS OF THE CAUSE THEREOF.
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9. Attorneys Fees.
If either party commences an action against the other party for the
breach or alleged breach of this agreement or for its enforcement, the
prevailing party shall be entitled to recover in addition to damages
its reasonable attorneys' fees and costs from the other party.
10. Nonexclusivity.
ANP can enter into agreements with subscribers or other resellers in
the Service Area for the resale of Paging Service to subscribers.
Reseller can enter into agreements with other providers of Paging
Service in the Service Area.
11. Relationship of the Parties.
The parties hereto are independent contractors. Nothing contained in
this agreement shall constitute the parties as agent and principal,
partners, joint ventures or employer and employee. Reseller and ANP
have no authority to act on behalf of the other or otherwise bind the
other in any manner.
12. Authority.
Each party hereto represents and warrants to the other that it has (i)
all necessary power and authority to enter into and perform this
agreement in accordance with its terms and (ii) all necessary
authorizations from all federal, state and local governmental
entities.
13. Assignment.
13.1 This agreement is not assignable or otherwise transferrable by
Reseller, voluntarily or by operation of law, without ANP's
prior written consent which shall not be unreasonably
withheld. However, Reseller has the right to freely assign or
transfer this agreement to an entity controlled by Reseller
with notice to ANP.
13.2 ANP's rights, obligations, liabilities or duties under this
agreement may be assigned or transferred without Reseller's
consent so long as the assignee or transferee assumes all of
ANP's obligations, liabilities, and duties hereunder and is
capable of performing all such obligations, liabilities, and
duties.
14. Notices.
Any notice or demand given or made hereunder shall be served in the
following manner:
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(a) If given to ANP, notice shall be sent by registered
or certified mail return receipt requested addressed
to ANP at:
0000 Xxxx Xxxx Xxxxx Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: President
with a copy addressed to Arch Communications Group, Inc., 0000 Xxxx
Xxxx Xxxxx Xxxxx 000, Xxxxxxxxxxx, XX 00000, Attention: President.
(b) If given to Reseller, notice shall be sent by
registered or certified mail return receipt requested
addressed to:
Xxxx Xxxxx
0 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxx Xxxxxxx, XX 00000
(c) All notices may be deemed to be given two (2) days
after the date of mailing.
(d) Either party can change its address for notice
purposes by delivery of notice of such change in the
manner provided herein.
15. Entire Agreement, Controlling Law.
15.1 This is the entire agreement of the parties, cancels and
supersedes all prior understandings and agreements, oral or
written, and shall not be modified or amended except by an
instrument executed by the party against whom enforcement is
sought. This is an agreement governed by the laws of the
Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to
be executed on behalf of each by a person with full power and authority to bind
such party.
ARCH NATIONWIDE PAGING, a Division of
Arch Communications Enterprises, Inc.
By: [ILLEGIBLE]
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IT'S Vice President
RESELLER
Mercury Cellular Telephone Company
By: [ILLEGIBLE]
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IT'S Vice President/General Manager
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ARCH NATIONWIDE PAGING
Attachment A
Reseller may obtain Paging Services from Arch Nationwide Paging and resell
Paging Services to Reseller's Subscribers within the following Territory:
UNLIMITED
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ARCH NATIONWIDE PAGING
Attachment B
Arch Nationwide Paging grants to Reseller a limited license to advertise and
promote Paging Service and use trademarks and trade names set forth below:
ARCH NATIONWIDE PAGING
