RADIO SUBSCRIBER SERVICE AGREEMENT
THIS AGREEMENT is made and entered into as of the date set forth below
by and between SMR Advisory Group, L.C., hereinafter referred to as "Manager"
and the BIZCOM U.S.A., Inc., hereinafter referred to as "Subscriber".
WHEREAS, Manager serves as the manager of 220 MHz Mobile
Communications facilities, which locations and service areas relating thereto
have previously been identified by Manager to Subscriber, licensed to various
entities ("Licensees"); and
WHEREAS, Licensees have each received from the Federal Communications
Commission ("FCC") an authorization for the operation of 220 MHz Mobile
Communications facilities as shown in the schedule attached hereto, as may be
amended from time to time by the Manager and provided to the Subscriber (the
"Stations"), and
WHEREAS, Subscriber desires to receive mobile communications service
on a non- exclusive basis for public safety/emergency disaster relief usage on a
turnkey basis, including the equipment necessary to operate in connection with
the Service ("Equipment"), as authorized by the Stations' licenses ("Service")
from Licensee in accordance with the applicable provisions of the FCC's rules,
and Manager agrees to provide such Service on behalf of Licensees to Subscriber.
NOW, THEREFORE, for and in consideration of the mutual promises of the
parties, and other good and valuable consideration, the receipt and sufficiency
of which is acknowledged by the parties hereto, it is hereby agreed as follows:
(1) Subscriber warrants it is eligible under the FCC's rules to obtain
the service provided by Manager on behalf of Licensees, and (b) it will use the
facilities furnished by Manager only for communications permitted by the FCC's
rules. Subscriber agrees to observe all statutory and regulatory requirements
governing the operation of radio transmitters employed in connection with the
Stations and the Service.
(2) Manager agrees to provide Service, on behalf of Licensees, to
Subscriber in accordance with the provisions of the FCC's rules. Subscriber
authorizes Manager to act as Subscriber's agent in order to arrange for the
interconnection of the Equipment with the facilities of the public switched
telephone network
(3) Subscriber agrees to pay Manager, on behalf of Licensee, for the
Service provided, pursuant to this Agreement.
(4) Subscriber shall pay the amount specified in the Radio Subscriber
Service Agreement Order Form ("Order Form") for Service and for Equipment on a
monthly, quarterly or annual basis as agreed by the Parties in the attached
Order Form ("Payments"). Payments shall be made in a form and at a location to
be specified by Manager. Payments will be due the first day of the billing
period in advance and payable net ten (10) days unless otherwise agreed to by
the parties. Payments shall be effective the first day of the month following
first day of Service. Upon termination of Service,
Payments for the full billing period are due. There shall be no proration, and
there shall be no billing credit provided Subscriber for Subscriber's partial
billing period's use of the Service. Subscriber and Manager hereby acknowledge
that Subscriber has prepaid the Payments for the first full year of this
Agreement.
(5) If during the term of this Agreement, the Subscriber wishes to
place additional units in service, the Subscriber must notify the Manager prior
to placing any transmitter in service. If prior notification is not received,
Manager may terminate this Agreement pursuant to the provisions of Paragraph 6
hereof. Units may be deleted by the Subscriber upon notification to Manager 30
days prior to the beginning of any annual term, not to exceed 50 percent (50%)
of the units specified on the Order Form. Rates will be adjusted proportionately
to the reduction.
(6) This Agreement will remain in force and effect from the date
hereof for a period of five (5) years and shall automatically extend for
successive one (1) year annual periods on the same terms and conditions as
provided herein provided neither party is in default hereunder. The foregoing
notwithstanding, this Agreement may be terminated at any time if the Station
license is revoked by the FCC, by either party upon a notice to the other party
given at least thirty (30) days to the non-terminating party. At the termination
of this Agreement, Subscriber shall deliver the Equipment at the place
designated by Manager in as good condition as exists at the beginning of the
term of the Agreement, reasonable wear and tear excepted.
(7) Payments not received by Manager within ten (10) days of due date
will be considered delinquent ("Delinquent Condition"). In the event of a
Delinquent Condition, Manager may immediately terminate this Agreement.
Subsequent to termination of Service, based upon a Delinquent Condition, Service
may be reinstated only after receipt of all moneys due Manager for Service plus
a $50.00 reconnection charge. Any Subscriber's check returned unpaid to Manager
will be considered a Delinquent Condition and assessed a $20.00 charge in
addition to the above terms and conditions. If the Subscriber shall sell or
assign Equipment of any interest therein, or if Subscriber defaults in any of
the terms of this Agreement, Manager may immediately and without notice
terminate this Agreement and take possession of Equipment wheresoever found and
remove or keep or dispose of the same. In the event of termination herein
provided, all accrued and unpaid charges shall be due and payable and are
subject to the interest charges at the maximum rate allowed by law. In the event
legal action is required to collect any moneys due, the Manager shall be
entitled to recover all costs of such actions, including but not limited to
reasonable attorney's fees.
(8) Title to the Equipment shall not pass to Subscriber. Subscriber
shall not conceal or interfere with the title of Manager.
(9) Subscriber acknowledges that there are no express warranties other
than those appearing in this Agreement and there are no implied warranties,
either of merchantability or fitness for a particular purpose, in connection
with the lease of the Equipment.
(10) Manager may revise the Service rates set forth in the Order Form
once, at any time during the last two (2) years of the five (5) year term by
giving the Subscriber written notice of the amount of the increase at least
sixty (60) days in advance of the end of the term. Upon receipt of any
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such notice, Subscriber may terminate this Agreement; otherwise, the new fees
shall become effective on the date specified in any such notice. In the event of
termination as herein provided, all accrued and unpaid Payments shall be due and
payable forthwith as provided in Paragraph 7 of this Agreement.
(11) If this Agreement is terminated for any reason by either the
Manager or Subscriber, Subscriber must, within thirty (30) days of such
termination, remove the coding used in the equipment that permits Subscriber
access to the Stations. Failure to remove such coding within thirty (30) days
may result in the forfeiture of Subscriber's deposit, if any.
(12) Manager, shall be liable for any interruption in Service to the
extent of a pro-rata allowance based on the monthly, quarterly or annual Service
fee, as the case may be, for the time such interruption is attributable to the
fault of the Manager. The Manager shall not assume or have any liability under
this Agreement for failure to provide, or delay in providing, Service or in the
use of the Equipment due directly or indirectly to causes beyond their control,
and without the fault or negligence of Manager, including but not restricted to
acts of God, acts of public enemy, acts of the United States, any State or
Territory of the United States, or any political subdivision of the foregoing,
or the District of Columbia, acts of the Subscriber, its agents, employees, or
subcontractors, fires, epidemics, quarantine restrictions, strikes, freight
embargoes and unusually severe weather conditions, or defaults of Manager's
sub-contractors due to any such causes.
(13) Subscriber acknowledges one hundred percent (100%) coverage of
any area at all times is improbable. Experience indicates adverse prorogation
conditions will exist from time to time and will disrupt service. Subscriber
acknowledges that satisfactory communication performance is viewed as
intelligible reception over rolling terrain approximate eighty percent (80%) of
the time. Any surveys, if provided, are to indicate general parameters of
expected coverage, subject to previously mentioned conditions, and are not
binding as an exact representation of coverage. Manager makes no representation
or assurances as to the satisfactory communication performance or useful signal
range afforded by the Station.
(14) No revision of this Agreement shall be valid unless made in
writing and signed by an officer of the Manager and an authorized agent of the
Subscriber.
(15) No assignment or transfer, in whole or in part, of this Agreement
shall be binding upon Manager without consent.
(16) In the event suit is required to enforce this Agreement, Manager
shall be entitled to recover the costs of such suit, including reasonable
attorney's fees.
(17) All payments due Manager are subject to the maximum interest
charges permitted by law.
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SMR ADVISORY GROUP, L.C.
RADIO SUBSCRIBER SERVICE AGREEMENT ORDER FORM
DATE: APRIL 24, 2002
OFFICE: SMR ADVISORY GROUP, L.C.
0000 XXXXX XXXXX XXX, XXXXX 000
XXXXXXX, XXXXXXX 00000 Telephone: 000 000-0000
Fax: 000-000-0000
Subscriber's Name: BIZCOM USA, Inc. Contact: Xxxx Xxxxx, President
Phone Number: 000-000-0000
Subscriber's Mailing Address: 0000 XX 00xx Xxxxxx, Xxxxx 000
Xxxx: Xxxx Xxxxxxxxxx Xxxxx: Florida Zip: 33309-6338
Account Number: INITIAL SERVICE DATE:
NO. OF UNITS IN SYSTEM: _____________
NUMBER OF SITES: _____________
NAME OF SITE(S) _____________
ACTIVATION FEE: $____________
MONTHLY BILLING: $16,667
QUARTERLY BILLING: $____________
ANNUAL BILLING: $____________
*PRE-PAYMENT OF $674,500 ACKNOWLEDGED
IMPORTANT: I HAVE READ AND AGREE TO THE ATTACHED TERMS AND CONDITIONS
Subscriber: MANAGER:
BIZCOM U.S.A., Inc. SMR ADVISORY GROUP, L.C.
By (Please Print): BY (PLEASE PRINT):
Name/Title: Xxxx Xxxxx, President NAME/TITLE: Xxxxxx Xxxxxxxxxxx
Signature: /s/Xxxx Xxxxx SIGNATURE: /s/Xxxxxx Xxxxxxxxxxx
Date: April 24, 2002 DATE: APRIL 24, 2002
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