DEVELOPMENT AND MARKETING ALLIANCE AGREEMENT
THIS TECHNICAL DEVELOPMENT AND MARKETING ALLIANCE AGREEMENT (the
"Agreement") made this day of April, 1997 (the "Effective
Date"), by and between PrimeLink, Inc., a Kansas corporation
whose principal place of business is located at 9875 Widmer Road,
Lenexa, KS 66215 ("PrimeLink") and Williams Wireless, Inc., a
Delaware corporation whose principal place of business is located
at Tulsa Union Depot, 111 East First Street, Tulsa, Oklahoma
74103 ("WWI").
Background
WHEREAS, PrimeLink and WWI desire to establish a business
relationship, the terms of which are described below, which will
mutually support and enhance the development and marketing
efforts of each company in the area of wireless telemetry
products and services; and
WHEREAS, PrimeLink and WWI may use the basis of this relationship
to enter into other development and marketing alliances.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for other goods and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows.
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Affiliate" means any person, entity, or association
directly or indirectly controlling or controlled by, or under
direct or indirect common control with, the party, entity, person
or association in question. "Control" will mean the power to
direct the management policies of the controlled person, entity,
or association, whether by voting securities, by contract, by
family relationship or otherwise.
"Mtel Network" means the Two-Way wireless messaging system
owned and operated by Mtel's Affiliates.
"NPCS Transceiver" means the OEM Narrowband wireless PCS
transceiver installed within the Telemetry Device, and
transmitting over the Mtel Network, to transmit the customer
Telemetry data being collected to a central data collection
point.
"Telemetry" means, collectively, monitoring devices,
computerized control equipment, communications infrastructure,
software, host computers, control centers and technical personnel
services.
"Telemetry Gateways" means WWI-owned devices for
communicating with TIMS, processing the telemetry data from the
TIMS, storing the data, communicating the data to a central
collection point, and packaged with other associated hardware all
within an enclosure, designed to provide telemetry data
collection within a customer's premise. Incorporated as a key
component within the Telemetry Gateways is PrimeLink firmware
licensed to WWI which is further described in Section 5 herein.
"Telemetry Interface Module ("TIM")" means WWI-owned data
sensing devices attached to various customer equipment for
capturing, sorting and communicating telemetry data to Telemetry
Gateways.
"Telemetry Product" means the TIMS, Telemetry Gateway, data
collection networks, including the Mtel Network and others, other
hardware, application software, device installation process,
customer training, ongoing customer support, network management,
data processing, data networking and other services which
constitute a complete turn-key telemetry application which WWI
offers to a customer.
2. Scope and Purpose of the Alliance. PrimeLink and WWI hereby
agree to undertake a development and marketing alliance for the
purpose of pursuing and developing products and business in the
telemetry market. PrimeLink shall assist and cooperate with WWI,
under the terms contained herein, in developing and marketing the
Telemetry Products. WWI shall grant PrimeLink certain
manufacturing contracts and marketing rights, under the terms
contained herein..
3. System Engineering and Design Services. From time to time
WWI may contract with PrimeLink for PrimeLink to provide systems
engineering and design services. The terms of such contracts
will be set forth in Purchase Orders or separate Commercial
Service Agreements ("CSA"). Rates for such systems engineering
and design services will be provided in Schedule A to the
corresponding CSA. All resulting work efforts and documentation
will be the property of WWI, and copies will be delivered to WWI
as stipulated in the CSA. Upon request of WWI, PrimeLink will
immediately deliver to WWI in Tulsa any materials relating to
such systems engineering and design services, including but not
limited to drawings, specifications, prototypes and circuit
boards. All patent rights and copyrights associated with this
paragraph accrue to WWI exclusively, except to the extent
otherwise provided in the CSA or otherwise provided in Section 5
of this Agreement.
4. Manufacturing Services. From time to time WWI may contract
with PrimeLink to manufacture Telemetry Devices for WWI.
Mutually acceptable terms to govern such contracts will be set
forth in separate CSAs, which terms shall provide that the
manufacturing party is to be the exclusive manufacturer of the
subject product. All manufactured products and documentation
resulting from the contracted manufacturing efforts will be the
property of WWI and copies will be delivered to WWI as stipulated
in the CSA. Upon request of WWI, PrimeLink will immediately
deliver to WWI in Tulsa any materials relating to such
manufacturing efforts, including but not limited to drawings,
specifications, prototypes and circuit boards. All patent rights
and copyrights associated with this paragraph accrue to WWI
exclusively. PrimeLink agrees to disclose full labor and
materials costs on all products they manufacture for WWI under
this paragraph.
5. Cross Licensing; Wholesale Purchases. WWI may license, or
buy for resell, telemetry devices or components of telemetry
devices including, but not limited to, firmware modules for
accessing data from the MTEL Network, from PrimeLink at mutually
agreeable wholesale rates. PrimeLink may license or buy for
resell, telemetry products and services from WWI at mutually
agreeable wholesale rates. All patent rights and copyrights
associated with devices, components, products or services
licensed or purchased as described in this Section 5 shall remain
with the original holder thereof exclusively. Purchasing or
licensing for resell must follow the reseller terms outlined in
Section 6 of this Agreement. Selection of products to offer for
cross licensing or purchase for resale is at the sole discretion
of each respective company holding the licensing or ownership
rights.
6. Scope and Purpose of the Joint Marketing and Reseller
Agreement. WWI hereby grants PrimeLink the non-exclusive right
to resell the Telemetry Products developed and sold by WWI, under
the following conditions. WWI retains the right to approve in
PrimeLink's pursuit of all reseller opportunities. To obtain
approval from WWI, PrimeLink shall use diligent and timely
efforts to register resell opportunities with WWI by submitting
to WWI a mutually agreeable registration form and by following
mutually agreeable procedures. Once registered, WWI shall use
diligent and timely efforts to notify PrimeLink as to whether
PrimeLink is authorized to resell WWI's Telemetry Products to the
registered customers. WWI shall not unreasonably deny PrimeLink
the right to pursue any registered opportunity, but that
notwithstanding, WWI has the right to deny authorization to
PrimeLink if the registered opportunity conflicts with an
existing opportunity being pursued directly by WWI or its agents
or Affiliates, or if WWI believes the pursuit of the registered
company may in some way be detrimental to WWI's parent company,
The Williams Companies, Inc. or any of WWI's other Affiliates.
If WWI denies PrimeLink the right to pursue a registered
opportunity in accordance with this Section, WWI may pursue such
opportunity directly with such potential customer without
compensation to PrimeLink.
7. Cost Disclosure. PrimeLink agrees to disclose full labor
and materials costs on all products it sells or licenses to WWI.
8. Relationship of the Parties. None of the provisions of this
Agreement shall be deemed to constitute a partnership, joint
venture, or any other such relationship between the parties
hereto, and no party shall have any authority to bind the other
party in any manner. Neither party shall have or hold itself out
as having, nor shall either party have, any right, authority, or
agency to act on behalf of another party in any capacity or in
any manner, except as may be specifically authorized in this
Agreement. The employees of WWI shall not be deemed to be
employees of PrimeLink, and the employees of PrimeLink shall not
be deemed to be employees of WWI.
9. Responsibilities of the Parties.
9.1 PrimeLink. During the Term of this Agreement, and
subject to the terms and conditions contained herein, (i)
PrimeLink shall provide technical support as required for
and specified in each CSA or as required to support other
activities jointly agreed to by the parties, and (ii)
PrimeLink shall be fully responsible for the satisfaction of
PrimeLink's customers to whom PrimeLink resells Telemetry
Products developed by WWI, with WWI having responsibility
only to PrimeLink and only to the extent set forth in any
sale agreement between such parties, except that WWI shall
assist in the resolution of any customer dissatisfaction
related to a negligent omission or commission of an act by
WWI or its Affiliates..
9.2 WWI. During the Term of this Agreement, and subject to
the terms and conditions contained herein, WWI shall be
fully responsible for the satisfaction of WWI's customers to
whom WWI sells products or services directly, except that
PrimeLink shall assist in the resolution of any customer
dissatisfaction related to a negligent omission or
commission of an act by PrimeLink or its Affiliates. WWI
shall provide technical support and customer support as
required for specific CSA's entered into with PrimeLink, or
as required to support activities of registered reseller
opportunities agreed to by both parties.
9.3 Jointly. During the term of this Agreement, and
subject to the terms and conditions contained herein and any
applicable CSA, PrimeLink and WWI shall jointly:
(a) develop a mutually acceptable project
development plan for development of Telemetry and
products.
(b) develop a mutually acceptable marketing plan
for pursuit of Telemetry service business.
(c) market to prospective Telemetry customers
through sales calls, presentations, demonstrations
and any other means elected by the parties.
(d) confer as to means by which each party shall
develop, market, promote, and solicit Telemetry
services business.
10. Warranty.
10.1 PrimeLink warrants software and hardware products it
sells and/or licenses to WWI per the PrimeLink warranty attached
hereto as Exhibit A.
10.2 WWI warrants software and hardware products it sells
and/or licenses to PrimeLink per the WWI warranty attached hereto
as Exhibit B.
11. Indemnity. Each party shall defend, indemnify, and hold the
other harmless from any and all liabilities, losses, damages, or
costs, including reasonable attorney's fees, resulting from,
arising out of, or in any way connected with (a) any breach by
such party of any warranty, representation, or agreement
contained herein, (b) the performance of such party's duties and
obligations hereunder, or (c) any claim arising out of or related
to the other's authorized use of such party's tradenames,
trademarks, or service marks; except to the extent caused by the
negligence or willful acts or omissions of the party entitled to
indemnification hereunder.
12. Representations and Warranties.
12.1. By PrimeLink. PrimeLink represents and warrants
to WWI as follows: (a) PrimeLink is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Kansas; (b) PrimeLink has all requisite
corporate power and authority to enter into this Agreement
and to carry out and perform its obligations under the terms
of this Agreement; (c) this Agreement has been duly
authorized, executed and delivered by PrimeLink and is a
valid and binding obligation of PrimeLink enforceable in
accordance with its terms, except as the same may be limited
by bankruptcy, insolvency, moratorium, and other laws of
general application affecting the enforcement of creditors'
rights; and (d) PrimeLink has all requisite power and
authority to require certain actions of its other Affiliates
to accomplish and provide the services as set forth in this
Agreement.
12.2. By WWI. WWI represents and warrants to PrimeLink
as follows: (a) WWI is a corporation duly organized, validly
existing, and in good standing under the laws of the State
of Delaware, (b) WWI has all requisite corporate power and
authority to enter into this Agreement and to carry out and
perform its obligations under the terms of this Agreement;
(c) this Agreement has been duly authorized, executed, and
delivered by WWI and is a valid and binding obligation of
WWI enforceable in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, moratorium,
and other laws of general application affecting the
enforcement of creditors' rights; and (d) WWI has all
requisite power and authority to require certain actions of
its other Affiliates to accomplish and provide the services
as set forth in this Agreement.
13. Term and Termination.
13.1 Term. The term of this Agreement shall commence on the
Effective Date and continue for a period of eighteen (18)
months therefrom (the "Initial Term"). Upon the mutual
agreement of the parties, this Agreement may thereafter be
renewed for additional, successive one year terms
("Extension Term(s)").
13.2 Termination. The Agreement may be terminated (a) upon
the mutual agreement of the parties, (b) upon the commission
of a material breach of the terms and conditions hereof by
one of the parties (the "breaching party") and the failure
of the breaching party to cure or remedy such breach or
default within thirty (30) days following receipt of written
demand from the non-breaching party to do so, (c) upon one
of the party's insolvency, assignment for the benefit of
creditors, appointment or sufferance of appointment of a
trustee, a receiver or similar officer, or commencement of a
proceeding seeking reorganization, rehabilitation,
liquidation or similar relief under the bankruptcy,
insolvency or similar debtor-relief statutes, or (d) at
WWI's sole discretion, if there is a material change in the
senior management of PrimeLink; however, if, in connection
with such change, an employee of PrimeLink leaves the
employment of PrimeLink, neither WWI nor any Affiliate shall
employ or contract with any former employee of PrimeLink for
a period of One (1) year or (e) at WWI's sole discretion,
upon a change of control in the ownership of PrimeLink or
any aggregate transfer of at least twenty-one percent (21%)
interest resulting in a total transfer of 21% of the
ownership interests in PrimeLink to or from any individual
or entity during the term of this Agreement; however,
PrimeLink and if Affiliates reserve the right for a public
offering at PrimeLink's sole discretion.
13.3 Assignment. Upon termination of this Agreement
pursuant to this Section 13, PrimeLink shall upon WWI's
request exercise PrimeLink's right under the language set
forth in Section 18.5 to assign to WWI any third party
agreements related to the provision of products or services
by PrimeLink pursuant to this Agreement.
13.4 Effect of Termination. Upon any termination or
expiration of this Agreement, each party will be released
from all obligations and liabilities to the other occurring
or arising after the date of such termination or expiration
of the transactions contemplated hereby, except with respect
to those obligations which by their nature are designed to
survive termination or expiration; provided that no such
termination will relieve PrimeLink or WWI from any liability
arising from any breach of this Agreement occurring prior to
termination or expiration.
The parties further agree that upon any termination or
expiration of this Agreement PrimeLink will immediately
deliver to WWI in Tulsa any material relating to the design
and manufacture, including but not limited to drawings,
specifications, prototypes, printed circuit boards,
component inventories and undelivered products or assembled
inventories, relating to Telemetry Devices manufactured for
WWI by PrimeLink as described in Sections 3 and 4 herein.
WWI and PrimeLink shall complete all existing CSAs in place
at the time of termination. WWI and PrimeLink may continue
as a buyer and reseller of the each other's respective
products and services under a separate agreement to be
negotiated at the time of termination or expiration of this
Agreement.
14. Confidentiality. The parties acknowledge that they are
subject to that certain Joint Non-Disclosure Agreement executed
between the parties, a copy of which is attached hereto as
Exhibit C and the terms of which are incorporated herein by this
reference. The parties further acknowledge that the disclosure
of confidential or proprietary information hereunder shall
constitute "Discussion" of "Confidential Information" (as such
terms are used in the Joint Non-Disclosure Agreement), and that
no disclosures shall be made in violation of such Joint Non-
Disclosure Agreement.
15. Notices. Any notice or other communication herein required
or permitted to be given shall be in writing and may be
personally served, sent by facsimile, or sent by an
internationally recognized overnight courier service, and shall
be deemed to have been received when (a) delivered in person or
received by facsimile (as evidenced by a facsimile confirmation
sheet) or (b) three (3) business days after delivery to the
office of such overnight courier service with postage prepaid and
properly addressed to the other party, at the following
respective addresses:
To PrimeLink: To WWI:
PrimeLink Williams Wireless, Inc.
Attention: Don Wallace Attention: James D. Cunningham
9875 Widmer Road Tulsa Union Depot
Lenexa, KS 66215 111 East First Street
Tulsa, OK 74103
Telephone #: (913) 859-0700 Telephone #: (918) 588-4879
Facsimile #: (913) 859-9233 Facsimile #: (918) 561-6024
or to such other address or addresses as either party may from
time to time designate as to itself by like notice.
16. Patent/Copyright Indemnity. PrimeLink agrees it will at its
sole cost and expense, defend, indemnify and hold harmless WWI
against all claims, liens, demands, damages, liability, actions,
causes of action, losses, judgments, costs and expenses of every
nature (including investigation costs and expenses, settlement
costs, and attorney's fees and expenses) (collectively,
"Claim(s)") to the extent such Claims arise out of, result from,
or are attributable to the negligence, error, omission, or
willful misappropriation of any patent, copyright, trade secret,
trademark, or confidential information (hereinafter called
"Intellectual Property") by PrimeLink or its employees,
subcontractors, consultants, representatives, or agents;
provided, however, WWI gives PrimeLink prompt notice in writing
of the Claims. PrimeLink shall defend, indemnify and hold WWI
harmless pursuant to this Section during the entire claim
process, regardless of whether the Claim is settled or goes to
trial.
If a judgment or settlement is obtained or reasonably
anticipated against WWI's use of any Intellectual Property for
which PrimeLink has indemnified WWI, PrimeLink shall at
PrimeLink's sole cost and expense promptly modify the item or
items which were determined to be infringing, acquire a license
or licenses on WWI's behalf to provide the necessary rights to
WWI to eliminate the infringement, or substitute the Intellectual
Property with non-infringing Intellectual Property which provides
WWI the same functionality. If none of such options is
commercially reasonable, PrimeLink shall refund the license fee
to WWI less reasonable lease charges for the time used.
WWI agrees it will at its sole cost and expense, defend,
indemnify and hold harmless PrimeLink against all Claims, to the
extent such Claims arise out of, result from, or are attributable
to the negligence, error, omission, or willful misappropriation
of any Intellectual Property by WWI or its employees,
subcontractors, consultants, representatives, or agents;
provided, however, PrimeLink gives WWI prompt notice in writing
of the Claims. WWI shall defend, indemnify and hold PrimeLink
harmless pursuant to this Section during the entire claim
process, regardless of whether the Claim is settled or goes to
trial.
If a judgment or settlement is obtained or reasonably
anticipated against PrimeLink's use of any Intellectual Property
for which WWI has indemnified PrimeLink, WWI shall at WWI's sole
cost and expense promptly modify the item or items which were
determined to be infringing, acquire a license or licenses on
PrimeLink's behalf to provide the necessary rights to PrimeLink
to eliminate the infringement, or substitute the Intellectual
Property with non-infringing Intellectual Property which provides
PrimeLink the same functionality. If none of such options is
commercially reasonable, WWI shall refund the license fee to
PrimeLink less reasonable lease charges for the time used.
17. Limitation of Liability
17.1 EACH PARTY'S TOTAL AGGREGATE LIABILITY FOR ANY CLAIMS,
LOSSES, OR DAMAGES ARISING UNDER THIS AGREEMENT OR THE
SERVICES PERFORMED HEREUNDER (OTHER THAN FOR PROFESSIONAL
NEGLIGENCE WHICH IS COVERED BY THE NEXT SENTENCE) SHALL BE
LIMITED TO THE LESSER OF THE TOTAL AMOUNT RECEIVED BY EITHER
PARTY PURSUANT TO THIS AGREEMENT OR $l,000,000.
17.2 NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, SPECIAL,
EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER UNDER
CONTRACT, TORT OR OTHER CAUSE OF ACTION, INCLUDING, BUT NOT
LIMITED TO, ANY DAMAGES, LOSS OR EXPENSES ARISING FROM THE
PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY HARDWARE
OR SOFTWARE, INCORRECT THIRD PARTY CONTENT, THE OTHER
PARTY'S LOST PROFITS, LOST BUSINESS, LOST DATA, OR LIABILITY
OR INJURY TO THIRD PERSONS, WHETHER FORESEEABLE OR NOT AND
REGARDLESS OF WHETHER THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IF THIS PROVISION IS IN
CONFLICT WITH OTHER CONTRACTUAL TERMS AND CONDITIONS, IT IS
UNDERSTOOD BY THE PARTIES THAT THIS PROVISION WILL, IN ALL
CASES, PREVAIL.
18. Miscellaneous.
18.1 Force Majeure. Neither party will be liable for any
nonperformance under this Agreement due to causes beyond its
reasonable control, including earthquakes, landslides,
strikes, lockouts, labor troubles, failure of power, riots,
insurrection, war, acts of God or other reason of like
nature that could not have been reasonably anticipated by
the non-performing party as of the Effective Date and that
cannot be reasonably avoided or overcome; provided that the
nonperforming party gives the other party written notice of
such cause promptly, and in any event within fifteen (15)
calendar days of discovery thereof.
18.2 Announcements. The parties shall consult and confer
with each other prior to making any public announcement
concerning any of the transactions contemplated in this
Agreement. Neither party shall make or issue any public
announcement concerning the subject matter of this Agreement
without ten days written notice to the other party or the
prior written consent of the other party.
18.3 Applicable Law. The validity, construction, and
performance of this Agreement shall be governed by and
construed in accordance with the laws of the State of
Delaware, without regard to the principles of conflict of
laws.
18.4 Assignment. Neither party shall assign this Agreement
or its rights or obligations herein without the prior
written consent of the other party; except that WWI shall
have the current or future right to, without the prior
consent of PrimeLink, assign this Agreement to any parent,
or Affiliate.
18.5 Assignment of Third Party Agreements. PrimeLink agrees
to insert the following paragraph into all third party
contracts into which PrimeLink enters relating to products
or services to be provided by PrimeLink pursuant to this
Agreement: "This Agreement and all rights and obligations
herein shall be wholly assignable by PrimeLink to Williams
Wireless, Inc. without consent."
18.6 Non-Solicitation. WWI shall not solicit for employment
any employee of PrimeLink for a period that is the lesser of
(i) the term during which this Agreement is in effect, or
(ii) two (2) years from the Effective Date of this
Agreement.
IN WITNESS WHEREOF, PrimeLink and WWI have executed this
Agreement as of the Effective Date.
Williams Wireless, Inc. PrimeLink
By: /S/ S. Miller Williams By: /S/ D. I. Wallace
Name: S. Miller Williams Name: D. I. Wallace
Title: President Title: President
Williams communications Group Inc.
F/K/A The Wiltech Group Inc.
hereby executes this agreement for the sole purpose of amending
the Joint Nondisclosure Agreement as described in section 14 of
this agreement
By: /S/ S. Miller Williams
Name: S. Miller Williams
Title: Senior Vice President