Exhibit 10.6
Form SB-2
Skypath Networks, Inc.
STRATEGIC ALLIANCE AGREEMENT
This agreement (this "Agreement") is made as of the day of , 2002 by and
between WebLink Wireless, Inc., a Delaware corporation ("WebLink"), and Skypath
Networks, a corporation ("Reseller").
WHEREAS, WebLink has constructed a nationwide network for providing
traditional one-way paging and messaging services and advanced messaging
services; and
WHEREAS, each party wants to enhance its competitiveness and stockholder
value and is therefore entering into this strategic alliance agreement providing
each party with certain rights regarding such services;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the terms set forth below
will have the following meanings:
"Administrative Interface" means an interface through which WebLink permits
Reseller to access WebLink's administrative system for the purpose of
activating, modifying or deactivating the Terminal Based Services of Reseller
Customers.
"Confidential Information" means any and all confidential or proprietary
technical and non-technical information marked or disclosed as confidential or
proprietary, including, without limitation, information related to trade secret
or proprietary inventions, techniques, sketches, drawings, models, know-how,
processes, apparatus, equipment, algorithms, software programs, and software
source documents; current, future and proposed products and services (including,
without limitation, all information concerning research, experimental work,
development, design, engineering, procurement requirements, purchasing,
manufacturing, prices and costs); network performance; customer lists; financial
information; business forecasts and plans; and sales, merchandising and
marketing plans and information.
"FCC" means the Federal Communications Commission or any successor federal
agency that performs substantially the same functions as the Federal
Communications Commission.
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"Coverage Code" means the set of numbers used by WebLink to designate the
coverage area of an end-user of Terminal Based Services.
"Fees" means the fees and charges set forth on Exhibit A attached hereto.
"FLEX(R)" means Motorola's one-way paging protocol of that name, version
1.8 or higher.
"Initial Term" has the meaning set forth in Section 3.4(a).
"Market" means a region (as defined by WebLink) within the WebLink Coverage
Area.
"Messages" means Receive Messages and Transmit Messages.
"Message Blocks" means, with respect to NPCS Services, 100 characters (or
part thereof) of Payload in a Message. Message Blocks may be either inbound or
outbound. A character is seven bits of information.
"NPCS" means narrowband personal communications services.
"NPCS Services" means messaging bearing text, numbers, or digitally encoded
data of any form, transmitted over narrowband personal communications services
as defined under Part 24 of the FCC's rules.
"One-Way Services" means numeric and alphanumeric one-way paging services.
"Overblocks" means, with respect to NPCS Services, the number of Message
Blocks utilized by a Subscriber Device in excess of the number of Message Blocks
included in the base price.
"Payload" means the message content part of NPCS messages destined to or
coming from Subscriber Services. Not included in Payload are the personal
address of the device, the ReFLEX25 assigned message sequence numbers (not
visible to the end-user) or other control parameters defined in TNPP, WMtp or
ReFLEX25.
"Protocol Compatibility" means the ability to interpret FLEX(R) and
ReFLEX25(TM) at WebLink's implemented version level of these protocols.
Initially, Protocol Compatibility shall mean the ability to interpret FLEX(R)
version 1.8 and ReFLEX25(TM) version 2.6.
"Receive Messages" means inbound messages transmitted from Subscriber
Devices to receivers.
"ReFLEX25(TM)" means Motorola's NPCS air interface protocol of that name,
version 2.6 or higher.
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"Reseller Customers" means those customers of Reseller who have purchased
Services from Reseller directly or through a resale distribution channel.
"Reseller Number" means any telephone number or capcode owned by Reseller
and not assigned by WebLink as a WebLink Number.
"Services" means Terminal Based Services.
"Subscriber Devices" means the pagers and other subscriber devices approved
in writing by WebLink as a Subscriber Device.
"Terminal Based Services" means the services described in Section 2.2.
Terminal Based Services may be either One-Way Services or NPCS Services.
"Transmit Messages" means outbound messages transmitted from transmitters
to Subscriber Devices.
"WebLink Coverage Area" means those geographic areas which lie within the
broadcast range of WebLink's paging transmitters and, for NPCS Services, also
lie within the receive range of its receivers.
"WebLink Network" means WebLink's network of terminals, transmitters,
receivers, VSATs and other equipment utilizing the POCSAG, FLEX(R) and
ReFLEX25(TM) protocols for the delivery of messages over radio frequencies
licensed to WebLink.
"WebLink Number" means any telephone number, capcode or e-mail address
assigned to a Reseller Customer by WebLink.
ARTICLE II
SERVICES
Section 2.1. Services Provided. WebLink will provide and sell, upon the terms
and conditions set forth in this Agreement, the Terminal Based Services selected
by Reseller for which Fees are provided in Exhibit A. WebLink will provide the
Services only in the geographic areas where it is legally authorized and has the
facilities to do so. WebLink may provide and sell Services to others, including
end-users and resellers.
Section 2.2. Terminal Based Services.
(a) With Terminal Based Services, WebLink will:
(i) Permit Reseller to activate, modify and deactivate Reseller
Customers via the Administrative Interface for any of the types
of services listed under Terminal Based Services in Exhibit A;
and
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(ii) Transmit over the WebLink Network in the appropriate WebLink
Coverage Area the Transmit Messages that are received by WebLink
at one of its terminals for Reseller Customers who have been
activated in WebLink's administrative system; and
(iii)If the Terminal Based Services are also NPCS Services, transmit
over the WebLink Network the Receive Messages received by WebLink
from Subscriber Devices of such Reseller Customers; and
(iv) Provide the other types of services listed under Additional
Terminal Based Services in Exhibit A.
(b) Neither Reseller nor any Reseller Customer will have any proprietary
right in any WebLink Number or service provider identification. WebLink may
reassign such WebLink Numbers if they become inactive or if necessary to comply
with laws, regulations or business requirements. Similarly, WebLink will have no
proprietary right in any Reseller Number.
Section 2.3. Purchase of Subscriber Devices. Reseller may purchase Subscriber
Devices from WebLink subject to (i) availability, (ii) prices and payment and
delivery terms mutually agreed upon at the time of purchase, and (iii) the terms
and conditions of this Agreement. Any terms and conditions of any purchase order
submitted by Reseller that are inconsistent with this Agreement shall be void
unless expressly agreed to by WebLink in writing.
ARTICLE III
PRICES, PAYMENTS, TERM, ETC.
Section 3.1. Prices.
(a) In exchange for the Services and the performance by WebLink of its
other obligations pursuant to this Agreement, Reseller will pay to WebLink the
Fees set forth in Exhibit A attached hereto. If WebLink provides Services to
Reseller for which no Fees are set forth on Exhibit A, then Reseller will pay
WebLink's standard retail prices for such Services.
(b) WebLink may change the Fees no more than once every calendar year.
WebLink will notify Reseller in writing at least 60 days before any changes are
effective.
Section 3.2. Invoices and Payment.
(a) WebLink will xxxx Reseller for Terminal Based Services monthly in
advance, itemizing all charges. Fees for the first and last months of service to
a Reseller Customer will be prorated in accordance with the amount of time the
Reseller Customer is active in WebLink's administrative system.
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(b) Each invoice shall include all taxes and assessments of whatever kind
applicable to the Services furnished by WebLink hereunder. If Reseller has
supplied WebLink with a tax exemption certificate, WebLink shall not assess any
taxes covered by such exemption certificate. WebLink shall supply Reseller with
its xxxx for Services in the form of a floppy disk or magnetic tape in a format
mutually agreed upon between the parties. Reseller's payment is due within 30
days after receipt of the invoice. Any balance not paid within 30 days after
receipt of the invoice will bear interest from the invoice date until paid at
the lesser of (i) 1.5% per month, or (ii) the maximum rate permitted by law.
Payment of such invoices is not in any way dependent upon payment by Reseller
Customers of invoices submitted to them by Reseller.
(c) If Reseller, in good faith, disputes any charges, Reseller must within
30 days after receipt of the invoice, notify WebLink in writing stating the
invoice number, the specific items and amounts disputed ("Disputed Amounts") and
a reasonably detailed factual basis for the dispute. WebLink and Reseller shall
promptly confer and cooperate to resolve the dispute as quickly as possible.
WebLink will respond to Reseller in writing within 30 days after WebLink
receives Reseller's notice of dispute (the "Dispute Period"). Notwithstanding
the provisions of Section 3.2(b), during the Dispute Period Reseller may
withhold payment of up to 5% of the invoice amount, not including carry over
balances (the "Withheld Amount"), provided that the Withheld Amount is a
Disputed Amount and all other amounts due are paid timely in accordance with
this Agreement. If after the Dispute Period, WebLink reasonably determines that
the Withheld Amount is properly owed to WebLink, Reseller will pay such Withheld
Amount, plus interest as provided in Section 3.2(b) above, to WebLink within 30
days after receipt of a written request.
(d) WebLink will maintain a file of all Reseller Message transactions
billed for three months and make such file available for Reseller review.
(e) In the event WebLink should lose a significant amount of Reseller's
Message transaction history in a month, WebLink may elect to invoice Reseller an
amount equal to the immediate prior month xxxx. Reseller agrees to pay such xxxx
unless Reseller can reasonably substantiate that it had a reduced number of
Service subscribers, in which case the invoice will be reduced proportionally.
Section 3.3. Pricing of Services to Reseller Customers. Reseller will have the
right, in its sole discretion, to determine its marketing and sales strategies,
including, but not limited to, the prices to be charged to Reseller Customers
for the Services.
Section 3.4. Term and Termination.
(a) Unless sooner terminated as provided elsewhere herein, this Agreement
will have an initial term of five years (the "Initial Term"). Thereafter, this
Agreement will be automatically renewed for successive one-year renewal terms
unless either party gives the other written notice of nonrenewal at least 90
days prior to the end of the then current term.
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(b) Either party may terminate this Agreement upon notice to the other
party if the performance of any material terms of this Agreement has been
prohibited by final action of any federal, state or local court or governmental
or regulatory body, and the deletion or modification of such material terms
would preclude the parties from performing this Agreement.
(c) If the parties terminate this Agreement for any reason (except for an
uncured monetary breach by Reseller or pursuant to paragraph (b) of this
Section), any Reseller Customers receiving Services under this Agreement shall
continue to receive Service from WebLink for up to 24 months from the
termination date (the "Termination Date"), provided that Reseller shall continue
to perform its obligations applicable to the continuation of Services in
accordance with the terms of this Agreement. From the Termination Date, Reseller
shall pay WebLink the Fees in effect from time to time. WebLink may change the
Fees at any time by notifying Reseller in writing at least 60 days before the
changes are effective. After the Termination Date, Reseller shall not add any
Reseller Customers to the Services, unless otherwise agreed by the parties in
writing. If Reseller defaults under the terms of this paragraph or this
Agreement, then WebLink may immediately terminate all Services to Reseller
Customers. This section shall survive a termination or expiration of this
Agreement. The termination of this Agreement for any reason will not relieve the
parties of any obligations incurred through the Termination Date.
(d) Subject to Section 3.5(a) and consistent with an orderly wind-down,
whether before or after termination of this Agreement, Reseller shall have the
right, but not the obligation, to transfer its Reseller Customers to another
service provider; provided, however, that no more than 3% of Total Reseller
Customers (as defined below) may be transferred, disconnected or churned off the
network during any calendar month. Subject to the foregoing, WebLink will
cooperate with Reseller in good faith to ensure that the transition of such
Reseller Customers to an alternative provider is handled in a timely fashion
with no interruption in services. The term "Total Reseller Customers" means the
total number of Reseller Customers on the last day of the month prior to the
month in which Reseller begins to transfer Reseller Customers as permitted by
this paragraph.
Section 3.5. Exclusivity for NPCS Services.
(a) In consideration of the commitments by WebLink contained herein, and in
order to maintain continuity in the provision of NPCS Services to Reseller
Customers, Reseller agrees, that for five years from the date hereof, Reseller
will not sell any NPCS Services to Reseller Customers utilizing any other NPCS
service provider. Notwithstanding the foregoing, nothing in this Agreement shall
prohibit Reseller from offering or selling telecommunications services other
than NPCS Services, or from selling NPCS Services on a network which is wholly
owned by Reseller.
(b) If Reseller violates paragraph (a) of this Section, WebLink may, in its
discretion, immediately increase the Fees charged to Reseller. In addition,
Reseller's authority to resell the NPCS Services may immediately (upon the date
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of the breach) be terminated and withdrawn. WebLink may also pursue any other
remedy for breach provided in this Agreement or permitted by law or in equity.
Section 3.6. WebLink's Termination Rights and Remedies. WebLink may immediately
suspend or terminate the Services in whole or in part or terminate this
Agreement for any of the following reasons: (i) if Reseller commits a material
breach of any of its obligations under this Agreement, and such breach has not
been cured within 10 days for breaches of monetary obligations and within 30
days for breaches of non-monetary obligations after receipt of written notice of
such breach from WebLink (or such longer period as may be required to cure such
non-monetary breach if, within such 30 days, Reseller commences and diligently
pursues cure of such breach); or (ii) if Reseller terminates its existence,
discontinues business, has a receiver appointed for any part of its property, or
has any proceedings under any bankruptcy, reorganization or similar laws
commenced by or against it. The rights and remedies set forth in this Section
are not exclusive and are in addition to any other rights and remedies provided
by law or in equity.
Section 3.7. Reseller's Termination Rights and Remedies. Reseller may
immediately terminate this Agreement for any of the following reasons: (i) if
WebLink commits a material breach of any of its obligations under this
Agreement, and such breach has not been cured within 30 days after receipt of
written notice of such breach from Reseller (or such longer period as may be
required to cure such breach if, within such 30 days, WebLink commences and
diligently pursues cure of such breach), or (ii) if WebLink terminates its
existence, discontinues business, has a receiver appointed for any part of its
property, or has any proceedings under any bankruptcy, reorganization or similar
laws commenced by or against it. The rights and remedies set forth in this
Section are the exclusive remedies of Reseller.
Section 3.8. Interference. Notwithstanding anything to the contrary contained
herein, in the event Reseller interferes with WebLink's administrative or
telecommunications equipment or facilities in connection with the Administrative
Interface or otherwise, WebLink will immediately notify Reseller and the parties
shall promptly begin remedial actions. WebLink may, at its discretion, terminate
Reseller's access until the interference is eliminated, or take whatever steps
are necessary and reasonable to stop the interference. Reseller shall be
responsible for any cost associated with eliminating the interference.
Section 3.9. Modification of WebLink Network. WebLink reserves the right to
modify the hardware and software comprising the WebLink Network and/or its
method of operating the WebLink Network. So long as any such modifications are
non-discriminating, WebLink will not have any obligation to reimburse or
compensate Reseller for any expense, loss or damage suffered or sustained by
Reseller as a result of any decision WebLink makes regarding such a
modification.
Section 3.10. Effect of Change in Law or Regulation. Notwithstanding anything to
the contrary contained in this Agreement, WebLink may, in its sole discretion,
change the prices charged for Services or change the Subscriber Devices or
Services provided under this Agreement upon 30 days prior notice to Reseller if
WebLink deems such change necessary to comply with applicable law or regulation,
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or if WebLink determines that a change in applicable law or regulation
substantially increases WebLink's operating costs; provided, however, that any
such change in price of Services shall be non-discriminatory between Reseller
and all of WebLink's other like resellers.
Section 3.11. Denial of Service. WebLink may terminate service to any Reseller
Customer whose use of Services (i) is unlawful, fraudulent, excessive or
abusive, (ii) interferes with WebLink's ability to provide service to its
customers, or (iii) damages WebLink's property.
Section 3.12. Guaranteed Delivery. The terms "guaranteed" or "assured" delivery
or messaging (or any terms with similar meaning) apply only to NPCS Services
identified by WebLink in any way as guaranteed or assured. Such terms mean that,
for a message received into WebLink's advanced messaging network gateways and
addressed to a Reseller Customer's Subscriber Device, the network will transmit
the message once. If the device and the network are not then communicating, the
network will store the message for a predetermined fixed period of time (the
"Storage Period"). At any time that the device and network are communicating
during the Storage Period, the network will retransmit the message until the
device acknowledges receipt of the correct and complete message. WebLink's use
of such terms does not constitute a representation or warranty regarding such
Services.
Section 3.13. WebLink's Software. Software provided to Reseller by WebLink for
the Administrative Interface, if any, will be provided pursuant to WebLink's
Software User License.
ARTICLE IV
OBLIGATIONS OF THE PARTIES
Section 4.1. Obligations of WebLink. WebLink covenants and agrees as follows:
(a) From time to time, WebLink will provide in writing to Reseller (i) the
protocols necessary for Reseller to maintain Protocol Compatibility, (ii) the
hardware, software and other specifications necessary for Reseller to access and
utilize the Administrative Interface, (iii) the technical requirements for
programming and using Subscriber Devices, and (iv) the list of Subscriber
Devices approved by WebLink for use on the WebLink Network.
(b) Messages of Reseller Customers received by WebLink will be handled with
the same priority, accuracy, and geographic coverage as the Messages of like
WebLink subscribers.
(c) WebLink will reasonably cooperate with Reseller to provide Reseller
with data in order to assist Reseller in responding to any service complaints
from Reseller Customers.
(d) WebLink will provide Reseller with marketing maps showing the WebLink
Coverage Area in camera ready art form, or electronic format, to allow Reseller
to produce its own coverage maps and marketing information.
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Section 4.2. Obligations of Reseller. Reseller covenants and agrees as follows:
(a) Reseller shall purchase from a vendor of its choice the Subscriber
Devices to be supplied to Reseller Customers. Any Subscriber Devices supplied by
Reseller shall be compatible with the WebLink Network and shall be FLEX(R),
ReFLEX25(TM) or other compatible format approved by WebLink. The types of
Subscriber Devices supplied to Reseller Customers must be pre-approved by
WebLink in writing. Should a significant compatibility issue be discovered in a
previously approved Subscriber Device such that WebLink removes it from the list
of approved devices then, after written notice from WebLink, Reseller will be
responsible for the upgrade or replacement of such active units (provided
WebLink no longer allows its own customers to use those Subscriber Devices).
WebLink will have no obligation to repair or replace Subscriber Devices of
Reseller Customers.
(b) Reseller or its customers will be solely responsible for providing all
local and long distance telecommunications services and communications hardware
and software necessary to access the Administrative Interface. Reseller will
comply with the protocols, requirements and specifications provided by WebLink
pursuant to Section 4.1(a), and will maintain its operations and the active
Subscriber Devices of Reseller Customers so that Protocol Compatibility is
maintained.
(c) Reseller will utilize its access to the WebLink Network and WebLink
administrative system solely for the purposes authorized by this Agreement.
Reseller will not input or delete any information from the WebLink
administrative system except information that relates solely to Reseller
Customers. Reseller will not attempt to cause WebLink to send Transmit Messages
to any customer of Reseller other than a Reseller Customer.
(d) Reseller will market and sell Services in its own name to the Reseller
Customers and will not use WebLink's tradenames, marks, or logos to identify
such services without WebLink's express written approval. Reseller will not
misrepresent the Services to Reseller Customers.
(e) Reseller will provide WebLink with a rolling four-quarter quarterly
written forecast of its unit growth by Market to assist WebLink in spectrum
planning. Such forecast shall be provided no later than the fifth (5th) day of
each calendar quarter in a form acceptable to WebLink.
(f) Reseller may grant its agents and resellers the right to market,
promote and resell Services; provided, however, that Reseller shall be
responsible for such agent's and reseller's compliance with all terms of this
Agreement.
ARTICLE V
INDEMNIFICATION
Section 5.1. Indemnification.
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(a) Reseller will indemnify and hold harmless WebLink and its affiliates
and their agents, employees, officers, directors, successors and assigns from
and against all liabilities and expenses, including reasonable attorneys fees
("Liabilities"), arising out of any (i) claim by Reseller Customers involving
the use, condition or operation of any Subscriber Devices or the use of the
Services, (ii) material breach of this Agreement by Reseller, (iii) advertising,
guarantees or warranties provided by Reseller to Reseller Customers, or (iv)
violation of law or regulation applicable to Reseller, excluding Liabilities
arising out of, or in connection with, any negligence or willful misconduct of
WebLink. WebLink shall indemnify and hold Reseller and its affiliates and their
agents, employees, officers, directors, successors and assigns from and against
all Liabilities arising out of, or in connection with, any (i) claim by WebLink
customers (excluding Reseller and its customers) involving the use, condition or
operation of any Subscriber Devices or the use of the services purchased by them
from WebLink, (ii) material breach of this Agreement by WebLink, or (iii)
violation of law or regulation applicable to WebLink, excluding Liabilities
arising out of, or in connection with, any negligence or willful misconduct of
Reseller. These indemnities shall survive the termination of this Agreement.
(b) If any claim or demand for which an indemnifying party would be liable
to an indemnified party hereunder is asserted against an indemnified party by a
third party, the indemnified party will with reasonable promptness notify the
indemnifying party of such claim or demand (the "Claim Notice"). The
indemnifying party will not be obligated to indemnify the indemnified party with
respect to any such claim or demand if the failure of the indemnified party to
promptly notify the indemnifying party of such a claim or demand materially
prejudices the indemnifying party's ability to defend against the claim or
demand. The indemnifying party will have 30 days from the personal delivery or
mailing of the Claim Notice (the "Notice Period") to notify the indemnified
party (i) whether or not it disputes the liability of the indemnifying party to
the indemnified party with respect to such claim or demand and (ii) whether or
not it desires at the sole cost and expense of the indemnifying party, to defend
the indemnified party against such claim or demand; provided, however, that any
indemnified party is hereby authorized prior to and during the Notice Period to
file any motion, answer or other pleading which it deems necessary or
appropriate to protect its interests or those of the indemnifying party and not
materially prejudicial to the indemnifying party. In the event that the
indemnifying party notifies the indemnified party within the Notice Period that
it desires to defend the indemnified party against such claim or demand, the
indemnifying party will have the right to defend by all appropriate proceedings.
The indemnified party may also participate in the defense of such actions by
employing counsel at the indemnified party's expense. The indemnified party will
not settle any claim or consent to the entry of any judgment without the prior
written consent of the indemnifying party.
ARTICLE VI
LIMITATIONS AND DISCLAIMERS
Section 6.1. Limitation of Liability. Reseller acknowledges that pages and
messages may be lost or garbled for many reasons, such as dialing errors, power
failures, communications network equipment failures, electronic interference and
the recipient's Subscriber Device being turned off or outside the coverage area
or having a weak battery. This Section applies notwithstanding any other
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provisions of this Agreement. NEITHER PARTY SHALL BE LIABLE FOR ANY DAMAGES
ARISING OUT OF (i) LATENT OR PATENT SUBSCRIBER DEVICE OR SERVICE DEFECTS, OR
(ii) LOSS OF USE OF ANY OF THE SUBSCRIBER DEVICES OR SERVICES, OR (iii) THE
CONTENT OF ANY MESSAGE, OR (iv) ANY FAILURE OR DELAY IN THE TRANSMISSION OF
RECEIPT OF A MESSAGE; OR (v) ANY INTERCEPTION OR UNAUTHORIZED DISCLOSURE OF A
MESSAGE. NEITHER PARTY SHALL BE LIABLE FOR LOST PROFITS OR EXEMPLARY, SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT
OF THIS AGREEMENT, THE SUBSCRIBER DEVICES, OR THE SERVICES. IF ANY LIMITATION OF
LIABILITY SET FORTH HEREIN IS UNENFORCEABLE OR INAPPLICABLE FOR ANY REASON,
WEBLINK'S MAXIMUM AGGREGATE LIABILITY TO RESELLER UNDER ANY LEGAL THEORY
(INCLUDING ITS OWN NEGLIGENCE) FOR DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT OF
THIS AGREEMENT, THE SUBSCRIBER DEVICES OR THE SERVICES WILL NOT EXCEED THE
LESSER OF THE ACTUAL DIRECT DAMAGES SUFFERED BY RESELLER OR THE AMOUNT PAID BY
RESELLER FOR THE SERVICE AND SERVICE PERIOD OUT OF WHICH THE CLAIM AROSE.
Section 6.3. Disclaimer of Warranties. THE REPRESENTATIONS AND WARRANTIES OF
WEBLINK SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER
EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY
EXCLUDED. RESELLER ACKNOWLEDGES THE LACK OF SUCH WARRANTIES AND AGREES TO ENTER
INTO THIS AGREEMENT UPON SUCH TERMS.
Section 6.4. DTPA Waiver. Reseller waives the provisions of Chapter 17,
Subchapter E, Section 17.41 through 17.63 inclusive (other than Section 17.555,
which is not waived) of the Texas Business and Commerce Code, generally known as
the "Deceptive Trade Practices-Consumer Protection Act," a law which grants
consumers special rights and protection. It is the intent of Reseller that the
rights and remedies with respect to this transaction shall be governed by legal
principles other than the Texas Deceptive Trade Practices-Consumer Protection
Act. Reseller represents and warrants to WebLink that Reseller (i) is a business
consumer, (ii) has knowledge and experience in financial and business matters
that enable it to evaluate the merits and risks of the subject transaction,
(iii) is not in a significantly disparate bargaining position with respect to
the subject transaction, (iv) has been represented by legal counsel in
connection with the referenced transactions, and (v) has assets of $5 million or
more according to its most recent financial statements prepared in accordance
with generally accepted accounting principles. Reseller has waived its rights
pursuant to the Deceptive Trade Practices-Consumer Protection Act without duress
or coercion and fully acknowledges and understands the effect of the waiver.
This waiver will survive the termination of this Agreement.
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ARTICLE VII
MISCELLANEOUS
Section 7.1. Non-Disclosure. Each party agrees as follows:
(a) The recipient of Confidential Information will not disclose to third
parties or make use of, disseminate, or in any way circulate within its own
organization (except to employees or agents on a need to know basis) any
Confidential Information which is supplied to or obtained by it in writing,
orally or by observation, except as contemplated by this Agreement and except
for any other purpose the disclosing party may hereafter authorize in writing.
(b) The recipient of Confidential Information shall disclose such
Confidential Information only to those of its employees or agents who need to
know such information who have previously agreed, either as a condition to
employment or in order to obtain the Confidential Information, to be bound by
terms and conditions substantially similar to those of this Section.
(c) The recipient of Confidential Information shall treat all Confidential
Information with the same degree of care as it accords to its own Confidential
Information, but in no event less than reasonable care.
(d) The obligations of a recipient of Confidential Information under
subsections (a) through (c) shall terminate when such Confidential Information:
(i) enters the public domain subsequent to the time it was
communicated by the disclosing party through no fault of the
recipient;
(ii) has entered the public domain prior to the time it was
communicated to the recipient by the disclosing party;
(iii)was in the possession of the recipient free of any obligation of
confidence at the time it was communicated to the recipient;
(iv) was rightfully communicated to the recipient free of any
obligation of confidence subsequent to the time it was
communicated to the recipient by the disclosing party;
(v) was developed by employees or agents of the recipient
independently of and without reference to any information
communicated to the recipient by the disclosing party;
(vi) was communicated by the disclosing party to an unaffiliated third
party free of any obligation of confidence; or
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(vii)was communicated in response to a valid order by a court or
governmental body or as otherwise required by law, or to
establish the rights of either party under this Agreement.
(e) All Confidential Information furnished in written or documentary form,
including, without limitation, documents, drawings, models, apparatus, sketches,
designs and lists, shall remain the property of the disclosing party and shall
be returned to the disclosing party or destroyed promptly at its request,
together with any copies or modifications thereof or extracts therefrom.
(f) Neither party shall communicate any information to the other in
violation of the proprietary rights of any third party.
(g) Since unauthorized use, transfer or disclosure of the Confidential
Information will diminish the value to the owner of the proprietary interests
that are the subject of this Agreement, if a recipient of Confidential
Information breaches any of its obligations hereunder, the disclosing party
shall be entitled to seek equitable relief to protect its interests, including,
but not limited to, injunctive relief, as well as money damages. The rights and
remedies of the disclosing party set forth in this Agreement are not exclusive
and are in addition to any other rights and remedies provided by law or in
equity.
Section 7.2. Announcements. The parties to this Agreement will consult and
confer with one another prior to making any public announcement concerning,
mentioning or describing any of the transactions contemplated in this Agreement
(including the fact the parties have entered into this Agreement) wherein a
party's name, logos, and marks are used or can be reasonably inferred and shall
cooperate with each other to issue joint press releases in connection with the
execution of this Agreement. Any consent required under this section may be
withheld in a party's sole and absolute discretion, unless such disclosure is
required by law.
Section 7.3. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF
TEXAS (EXCLUDING CONFLICTS OF LAW PRINCIPLES) AND WILL, TO THE MAXIMUM EXTENT
POSSIBLE, BE DEEMED TO CALL FOR PERFORMANCE IN DALLAS COUNTY, TEXAS. THE PARTIES
CONSENT TO JURISDICTION OF AND VENUE IN THE COURTS IN DALLAS COUNTY, TEXAS. EACH
OF THE PARTIES WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO
TRIAL BY JURY AND ANY CLAIM THAT (i) SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF SUCH COURTS, (ii) SUCH PARTY OR ITS PROPERTY IS IMMUNE FROM ANY
LEGAL PROCESS ISSUED BY SUCH COURTS, OR (iii) SUCH COURTS ARE IN AN INCONVENIENT
FORUM.
Section 7.4. Notices. All notices, demands, requests or other communications
that may be or are required to be given, served or sent by either party to the
other party pursuant to this Agreement will be in writing and will be mailed by
first-class, registered or certified mail, return receipt requested, postage
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prepaid, or transmitted by overnight delivery, hand delivery, telegram or
facsimile transmission addressed as follows:
If to WebLink: 0000 Xxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Facsimile Number: (000) 000-0000
Attn: Vice President, Carrier Services
with a copy (which will
not constitute notice) to: 0000 Xxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Facsimile Number: (000) 000-0000
Attn: General Counsel
If to Reseller : Skypath Networks
Xxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile Number: ________________
Attn: ____________________________
with a copy (which will
not constitute notice) to: __________________________________
__________________________________
__________________________________
Facsimile Number: ________________
Attn: ____________________________
Any party may designate by written notice a new address to which any notice,
demand, request or communication may thereafter be sent. Each notice, demand,
request or communication that is mailed, delivered or transmitted in the manner
described above will be deemed sufficiently given, served, sent and received for
all purposes at such time as it is delivered to the addressee with the return
receipt, the delivery receipt, the affidavit of messenger or (with respect to a
facsimile transmission) the confirmation of delivery being deemed conclusive
evidence of such delivery or at such time as delivery is refused by the
addressee upon presentation. Notices delivered after 5:00PM will be deemed
delivered on the next business day (Monday through Friday excluding federal bank
holidays).
Section 7.5. Gender. Words of any gender used in this Agreement will be held and
construed to include any other gender, and words in the singular number will be
held to include the plural, unless the context otherwise requires.
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Section 7.6. Counterparts. This Agreement may be executed in multiple
counterparts, each of which will be deemed to be an original and all of which
will be deemed to be a single agreement. This Agreement will be considered fully
executed when all parties have executed an identical counterpart,
notwithstanding that all signatures may not appear on the same counterpart.
Section 7.7. Severability. If any provision of this Agreement is unenforceable,
such provision shall be reformed to the extent necessary to be enforceable. If
the unenforceable provision cannot be reformed, this Agreement will be construed
as if not containing the unenforceable provision.
Section 7.8. Third Parties. Except as set forth or referred to in this
Agreement, nothing in this Agreement is intended or will be construed to confer
upon or give to any party other than the parties to this Agreement and their
successors and permitted assigns, if any, any rights or remedies under or by
reason of this Agreement.
Section 7.9. Assignment. Neither this Agreement nor any rights under this
Agreement may be assigned without the prior written consent of the other party
(which will not be unreasonably withheld), and then only to an assignee that
agrees in writing to assume the rights and obligations of the assignor;
provided, however, that either party may assign this Agreement without the other
party's consent to any affiliate or subsidiary of such party. Any attempted
assignment in violation of this Section will be void.
Section 7.10. Relationship of Parties. Each party's relationship to the other is
that of independent contractor. Neither party is the partner, employee, dealer
or agent of the other, and neither party will represent itself to others as
such. Neither party will use the name of the other or any trademark, tradename
or copyright of the other party without its prior express written consent.
Section 7.11. Force Majeure. Neither party shall be liable to the other for any
delay or failure by such party to perform its obligations under this Agreement
or otherwise if such delay or failure arises from any cause beyond the
reasonable control of such party, including, without limitation, labor disputes,
strikes, acts of God, floods, lightning, shortages of materials, rationing,
utility or communication failures, earthquakes, casualty, war, acts of the
public enemy, riots, insurrections, embargoes, blockades or regulation or orders
of governmental authorities. If a party shall be delayed or prevented from
performing this Agreement due to any cause beyond its reasonable control, such
delay shall be excused during the continuance of such delay and the period of
performance shall be extended to the extent necessary to enable such party to
perform its obligations after the cause of such delay has been removed.
Section 7.12. Customer Information. The Reseller Customers and all related
customer and account information shall be the exclusive property of Reseller;
provided, however, nothing contained in this Agreement shall prevent WebLink
from contacting such Reseller Customers and/or continuing the NPCS Services
described herein to such Reseller Customers in the event that Reseller is
liquidated, dissolved, rendered insolvent or files for protection under the
bankruptcy laws (whether such filing is voluntary or involuntary).
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Section 7.13. Laws, Rules and Regulations. The parties to this Agreement agree
to comply with all applicable laws and regulations. This Agreement is subject
and subordinate to all laws, rules, regulations and ordinances relative to,
among other things, the provision of wireless messaging services, including, but
without limitation, the Communications Act of 1934 and all rules and regulations
promulgated thereunder.
Section 7.14. Entire Agreement; Amendment. The term "this Agreement" includes
all attached schedules, addenda, appendices and exhibits. This Agreement
represents the parties entire agreement and supersedes any prior agreement with
respect to the subject matter hereof. This Agreement may be amended only by a
written instrument signed by the party against whom such amendment is to be
enforced.
Section 7.15. Arbitration. Any dispute, controversy, or claim ("Claim") between
the parties arising out of, or relating to, this Agreement or the breach,
termination, or invalidity of this Agreement shall first be resolved through
informal discussions between senior managers of each party. If the parties are
unable to resolve such Claims informally within thirty (30) days, either party
may submit non-monetary Claims to binding arbitration before a single arbitrator
selected by the parties who is familiar with the paging and messaging business,
but who is not a current shareholder of, or current or former employee, agent,
or contractor of, either party. If the parties are unable to agree on an
arbitrator, the parties shall each select one arbitrator who will then in turn
select the third arbitrator. To the fullest extent permitted by law, the
arbitration shall be governed under the Wireless Industry Rules of the American
Arbitration Association ("Rules"). The arbitration hearing shall be held in
Dallas, Texas, unless all parties to the arbitration mutually agree to a
different location. The arbitrator or arbitrators shall forthwith determine the
merits of the Claims and shall deliver their decision within ninety (90) days of
the date of the arbitration demand. The arbitrator(s) shall have the power to
award specific performance and actual direct damages (which may include
reasonable attorney's fees and filing fees), but not punitive damages. The award
of the arbitrator shall be final and binding, and such judgment may be entered
by either party in any court having jurisdiction.
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective
as of the date first above written.
WEBLINK WIRELESS, INC. SKYPATH NETWORKS
By: /s/ By: /s/
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EXHIBIT A
FEES
(begins next page)
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Skypath Networks and WebLink Wireless
Proposed Business Model
The following is a general summary of the proposed business model between
Skypath Networks and WebLink Wireless:
General Terms
o The contract will have a term of three (3) years with an automatic renewal
of the same terms unless either party notifies the other in writing 60 days
prior to the automatic term renewal.
o In the ReFLEX text messaging space, Skypath Networks agrees to exclusively
offer only WebLink Wireless ReFLEX 25 service during the term of this
agreement. Skypath will not offer the same ReFLEX 2-way service from
another carrier. The only other ReFLEX carriers are Arch and Skytel.
Product
o Skypath Networks/Motorola T900 2-way Messaging Device
o Cost of the device: $165.00/unit
o Available Colors: Black, Mystic Blue, Aqua Ice and Razberry Ice
o Private label sticker(s):
o Back - Customer Service Sticker - $95.00/thousand + set-up charge
o Front - "Skypath Networks" Sticker - $95.00/thousand + set-up charge
o WebLink will apply sticker(s) at no charge - maximum of two.
o Standard WebLink Welcome Packet is included with each device at no charge.
Custom Welcome Packet quotation is available.
Consumer Service Pricing/Offer(s)
o Skypath Networks will set all consumer service pricing/offer(s).
Reseller Program
Skypath Networks will have customer ownership. Skypath Networks will
accept/process orders, handle returns, xxxx the consumer for the device/service
and provide Tier I customer service. Skypath Networks will establish protocol(s)
for delivering customer add/drop information to WebLink to assure database
accuracy.
Wholesale Airtime Price:
o Plan B - North America Coverage - $8.48/month/unit
o Includes 500 messages
o Overcalls .03/hundred character block
o Plan C - North America Coverage - $10.95/month/unit
o Includes 1000 messages
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o Overcalls .03/hundred character block
o Plan D - North America Coverage - $15.95/month/unit
o Includes 3000 messages
o Overcalls .03/hundred character block
o Remote Email Manager - $1.00/month/unit
o Basic Voice Mail - $1.50/month/unit
WebLink's Wholesale Airtime Price includes:
o Tier II Customer Service
o Standard WebLink "Welcome" Packet
o Application of provided custom labels (up to 2)
o WebLink Partner Extranet access
o Training
Additional Services
WebLink (see prices below) can provide the following additional services to
Skypath Networks:
o Product Acquisition, Inventory Management, Device Activation/Provisioning
and Fulfillment to consumer - $10.50/unit
o Includes USPS freight within the continental United States
o Returns - $20.00/unit
o Warranty Exchanges - $20.00/unit
Reseller Program - Order Flow
(Assumptions: WebLink providing: Product Acquisition, Inventory Management,
Device Activation/Provisioning and Fulfillment to consumer, Returns and
Warranty Exchanges)
o Consumer purchases Skypath Networks/Manufacturer branded 2-way
device/services from Skypath Networks.
o Skypath Networks bills the customer for device/service charges (initial and
ongoing).
o Skypath Networks is responsible for any consumer freight charges exceeding
USPS amounts if an alternative method of shipment is available.
o Skypath Networks sends consumer orders to WebLink for product
activation/provisioning and fulfillment directly to the consumer.
o WebLink will xxxx Skypath Networks for device costs as product is fulfilled
to the consumer.
o WebLink will xxxx Skypath Networks monthly for additional services provided
as well as wholesale airtime charges.
o Skypath Networks will provide Tier I Customer Service with WebLink
providing Tier II Customer Service.
o All returns and warranty exchanges will be handled by WebLink and billed to
Skypath Networks as processed.
o WebLink Wireless will provide Skypath Networks with password protected
WebLink Partner Extranet access at no charge.
o The device manufacturer handles product warranty.
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o Skypath Networks will update WebLink's database as needed with customer
adds/drops information for database accuracy.
The consumer will activate Remote Email Manager on the Skypath Networks site
upon receipt of the activated device. Website content is available on the
WebLink Partner Extranet.
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