Exhibit 10.3
VALUE ADDED RESELLER AGREEMENT
FOR
CINGULAR INTERACTIVE SERVICE1
THIS VALUE ADDED RESELLER AGREEMENT is made and entered into as of the 30th day
of December, 2003, ("Effective Date") by and between Cingular Interactive L.P.
("Cingular") having an address at 10 Woodbridge Center Drive, Woodbridge New
Jersey 07095, and GoAmerica, Inc., ("GoAmerica") and Wynd Communications
Corporation ("Wynd"; together with GoAmerica, the "Reseller") having an address
at 433 Hackensack Avenue, Hackensack, NJ 07601. Each of GoAmerica, Wynd, and
Cingular may be referred to herein individually as a "Party" and collectively as
the "Parties".
BACKGROUND
A - Cingular provides certain two-way wireless Mobitex data communications
services using radio base stations and switching facilities implemented and
operated by Cingular in the Territory, from time to time;
B - Reseller desires to resell and distribute the Cingular Services (as defined
below) and Cingular desires to authorize Reseller to resell, the Cingular
Services on the terms and conditions set forth herein.
For these reasons and in consideration of the mutual covenants in this
Agreement, Cingular and Reseller agree as follows.
1. DEFINITIONS
The words set forth in this Section 1, when appearing with initial capital
letters, shall have the meaning set forth for each in this Section.
1.0 Accessories - Cradles, cables and other related equipment made
available from time to time by Cingular for use in conjunction with
the Handheld.
1.1 Activate or Activation - shall mean the establishment by
Cingular of an initial authorization to, and the maintenance of an
ongoing authorization for, Subscriber Handheld to connect to the
Cingular Facilities. Each Subscriber shall be assigned a MAN with
respect to each Subscriber Handheld authorized to connect to the
Cingular Services.
1.2 Affiliate - A company in which Reseller owns at least a 51%
controlling interest in the outstanding stock or other equity and
which has signed an agreement agreeing to be bound by the terms and
conditions of this Agreement to be performed on Reseller's part.
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1 [*] connotes material that has been omitted pursuant to a request for
confidential treatment. Such omitted material has been filed separately on
a confidential basis with the Office of the Secretary of the Securities
and Exchange Commission.
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1.3 Agreement - This Value Added Reseller Agreement.
1.4 Cingular Facilities - The radio base stations, computers,
gateways and switching facilities implemented and operated by
Cingular from time to time to provide the Cingular Services. At
Cingular's sole option, such Cingular Facilities maybe expanded,
reduced, modified, or replaced during the term hereof.
1.5 Charges - The Charges provided for in Section 6 and Schedule A.
1.6 Cingular - Cingular Interactive L. P., a Delaware Limited
Partnership.
1.7 Cingular Service(s) - The services set forth in Schedule A.
1.8 Confidential Information - Information of a party to this
Agreement which is provided or disclosed to the other and is marked
as confidential or proprietary. If the information is initially
disclosed orally then (1) it must be designated as confidential or
proprietary at the time of the initial disclosure and (2) within
twenty (20) days after disclosure, the information must be reduced
to writing and marked as confidential or proprietary. No information
of the disclosing party will be considered Confidential Information
to the extent the information: i) is publicly known through no fault
of the recipient either before or after disclosure; or ii) is in
possession of the recipient without obligation of confidence prior
to the disclosure, or thereafter is independently developed by
recipient's employees or consultants; iii) is received from a third
party without an obligation of confidence to the third party; or iv)
is independently developed by a party. The parties agree that this
Agreement and all the terms and conditions set forth herein shall be
"Confidential Information".
1.9 Handheld - A wireless handheld messaging device, including the
cradle and cable if ordered (or applicable) and including any
software or firmware resident on the device, approved by Cingular
for use with the Cingular Services.
1.10 Initial Service Date - The date on which a Subscription is
first activated on the Cingular Facilities for the Cingular Service.
1.11 MAN's - Mobitex Authorization Numbers.
1.12 Marks - trade names, corporate logos, service marks and
trademarks of each Party.
1.13 Products- collectively the Handheld and the Accessories.
1.14 Reseller Order or Order - An order for Cingular Services or
Products issued by Reseller in a form mutually agreed by the
parties. This Agreement supersedes any terms or conditions contained
in any other forms or orders submitted by Reseller with or in place
of the Reseller Order.
1.15 Reseller Service(s) - The services listed in Schedule A that
are, sold, licensed or otherwise distributed by Reseller that are
not part of this
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Agreement and where such Reseller Services are used in conjunction
with the Cingular Facilities.
1.16 [*]
1.17 Subscriber - A customer of Reseller to which Reseller is
reselling or otherwise providing the Cingular Services under this
Agreement.
1.18 Subscription - A Handheld or other radio modem device
registered and Activated on the network and to which Cingular
Service is provided.
1.19 Term - The period of time, including any extension thereof, as
provided in Section 10.
1.20 Territory - shall mean the area served by Cingular's Mobitex
base stations that are placed at Cingular's sole discretion
throughout the United States and Puerto Rico.
2. SOLICITATION OF SUBSCRIBERS.
2.1 Subscribers and Solicitation. Through out the Term of this Agreement
Reseller shall diligently solicit Subscribers to the Cingular Services in the
Territory. The Subscribers shall be the customers of Reseller and not customers
of Cingular. Reseller shall be solely responsible for all risks and expenses
incurred in connection with its action in the sale and service of the Cingular
Services, the Reseller Services or any other acts required of Reseller pursuant
to this Agreement. Reseller shall receive all payments from Subscribers and
shall be responsible for all credit verification, deposits, billing, collection,
complaints, rebilling and bad debt recovery with respect to Subscribers, for
Cingular Service ordered by Reseller. Reseller shall pay all Charges regardless
of whether Subscribers have made payment to Reseller. This Agreement only
authorizes the Reseller to resell the Cingular Services as part of the Reseller
Services, and Reseller may not resell the Cingular Services as a separate or
standalone product or service.
2.2 Reseller Staff. Reseller, at its own cost and expense, shall maintain an
adequate staff to market the Reseller Services and to support and train the
Subscribers with respect to the Reseller Services.
3. THE CINGULAR SERVICES
3.1 Cingular Service. Cingular shall, as soon as is reasonably practicable,
Activate Subscriptions submitted to Cingular by Reseller in a form and manner as
may be required by Cingular from time to time and where such submission is
approved and accepted by Cingular and thereafter provide the Cingular Service to
such Subscriptions. Except as otherwise provided in this Agreement, Cingular
shall provide the Cingular Services to such Subscription until notified in
writing by Reseller to terminate (de-Activate) Cingular Service to the
Subscription. Cingular shall have no obligation to activate Subscriptions unless
the radio modem device and all software used by the device and any Reseller host
have been
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configured for use with the Cingular Service and have been approved by Cingular
for use on the Cingular Facilities.
3.2 Host Connections. Reseller shall be responsible at its own cost and expense
to, purchase, obtain and maintain any necessary host connection between a
Reseller host and the Cingular network. The Internet host connection provided by
Cingular is solely between the Cingular network and the Internet. If any
Reseller host is connected to the Cingular network through the Internet, it
shall be Reseller's responsibility to connect their host to the Internet.
3.3 Non-Exclusivity. The rights granted to Reseller in this Agreement are not
exclusive. Cingular expressly reserves the right without obligation or liability
to Reseller to (i) increase or decrease the number of parties it authorizes to
solicit subscribers to the Cingular Services and (ii) subject to Section 9.2, at
any time market and sell the Cingular Services on its own behalf or through
other, including other resellers, agents, distributors and retailers within the
Territory and upon such price terms and conditions as Cingular in its sole
discretion deems appropriate regardless of whether such third parties serve the
same area served by Reseller. Subject to the conditions set forth herein,
Reseller may market the Cingular Services and solicit Subscribers (from among
all classes of potential users, other than Cingular's subscribers now or
hereinafter acquired) within the Territory to the Cingular Services. Nothing
herein shall be construed so as to restrict the activities of Cingular, acting
alone or in concert with others, in connection with the development,
implementation, operation, or provision of any services or facilities
whatsoever, whether similar to or competitive with the Cingular Services or the
Reseller Services.
3.4 Future Services. In the event that Cingular's parent company, Cingular
Wireless LLC, makes a determination to offer its GPRS network for resale to
entities similar to Reseller, then Cingular, to the extent that it has authority
to do so, shall use commercially reasonable efforts to cause the parent to enter
into good faith negotiations with Reseller and with respect to GPRS wireless
data reseller agreement.
4. PRODUCTS
4.1 All Handheld's come with MAN's. Neither Reseller nor any Subscriber shall
acquire any property interest in any MAN assigned for Reseller's or Subscriber's
use. And no property interest is acquired by use of the MAN. Reseller agrees to
inform the Subscriber that Subscriber has no property interest in any MAN.
4.2 Purchase of Products. Subject at all times to the availability of Products,
Reseller may elect in each Reseller order to purchase certain Products from
Cingular in which event, in addition to the Charges for the Cingular Services,
Reseller shall pay the price for the Products at the then existing Reseller
prices.
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4.3 Title to Purchased Products. The Products paid for by Reseller shall be the
property of Reseller, provided that any Products ordered but not yet paid for
shall remain the personal property of Cingular and title (and right of
possession without legal process) to the Products sold to Reseller shall remain
with Cingular until payments for these Products have been made. Reseller agrees
to do all acts necessary to maintain Cingular's title and perfect Cingular's
security interest in the Products ordered but not yet paid for until Cingular
has been paid for such Products.
4.4 Product Pricing. Cingular shall have the right in its sole reasonable
discretion to change Product pricing upon [*] days written notice by Cingular to
Reseller. Such changes made by Cingular may include, without limitation, adding
or deleting Products, increasing or decreasing prices, or offering for a stated
limited time special discounts, rebates or other promotions for some or all of
the Products. Any price increase will not apply to any order received prior to
the date of such notice if the requested shipment date is less than [*] days
from the date of the order. In the event Cingular reduces the price of a Product
shown in Schedule A, then (a) such reduction shall apply to any orders received
by Cingular from Reseller prior to the date of notice of such reduction but not
yet shipped, and (b) Cingular shall issue a credit to Reseller's account for the
amount of such reduction for each affected Product shipped to Reseller within
[*] days prior to the date of such notice. When reselling a Product purchased
from Cingular under this Agreement, Reseller has the right to charge whatever
price Reseller deems appropriate.
4.5 No Product Returns to Cingular. Cingular is permitting Reseller to purchase
Products from Cingular (subject to availability) as a convenience to Reseller.
Reseller shall work directly with the manufacture with respect to all warranty
or other Product related issues, and Cingular shall have no responsibility with
respect to such Products after the Products have been delivered to Reseller. For
the avoidance of doubt, no Product returns are permitted to Cingular except as
may be authorized by Cingular from time to time in writing.
5. Trade Name and TradeMarks
5.1 Both parties recognize the right, title and interest of the other party in
and to all Marks used by that party and agree to not engage in any activity or
commit any act, directly or indirectly, that may contest, dispute or otherwise
impair such right, title or interest of the other party. Prior to either parties
use of the other's Marks in any manner, the party seeking to use the Mark will
submit to the party whose Mark is to be used, for review and approval in
writing, a full and complete copy of any document or other media containing such
use. Use of the Mark shall be allowed upon receipt of written authorization for
such use from the party that owns the mark or name.
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5.2 The obligations undertaken by the parties pursuant to this Section shall
survive termination of this Agreement. In the event of such termination, the
parties agree to not register or use any trademarks, trade names or service
marks that are the same as or confusingly similar to the Marks of the other
party and to surrender or abandon its use or ownership of any trade name or
style containing any Mark confusingly similar to that of the other party.
5.3 The parties agree to indemnify, defend, and hold each other harmless in any
third-party action relating to the use of the other party's Marks in violation
of the provisions of this Agreement.
6. PAYMENT
6.1 Charges. [*] subject to Section 6.7 of this Agreement, Reseller shall pay
Cingular the Charges for the Cingular Services as provided in this Section 6 and
the Schedule of Charges attached as Schedule A. Reseller shall bear full
responsibility for, and shall pay Cingular in accordance with the Schedule of
Charges for the provision of all Cingular Services to Subscriptions. Cingular
may increase such charges reasonably at any time, after the expiration of the
twelve (12) months from the date of this Agreement, upon not less than [*] days
notice in writing to Reseller. Reseller expressly acknowledges and agrees that
some of the Cingular charges incurred in a billing cycle may not be billed in
the billing cycle such charges are incurred. Cingular will make commercially
reasonable efforts to bill for all such charges within [*] days from the date
such charges are incurred.
6.2 Taxes, Surcharges, Assessments, and Government Fees. Except to the extent
that the Reseller demonstrates that it is exempt under applicable law from any
such charge, there shall be added to any charges an amount equal to any tariff,
duty, levy, tax, exaction or withholding tax, including but not limited to,
sales, property, ad valorem and use taxes, or any tax in lieu thereof, imposed
by any local, State or Federal government or governmental agency with respect to
the Services, or with respect to this Agreement itself, excepting only any taxes
on or measured by the income of Cingular. In addition, Cingular may pass through
to Customer a proportionate charge for any governmental mandates imposed on
Cingular, which there are currently no charges.
6.3 Invoices. On approximately the fifteenth (15th) day of each month following
the Initial Service Date, Cingular shall invoice Reseller for the amount of
Cingular Services used in connection with Subscriptions calculated in accordance
with the applicable rates specified in Schedule A.
6.4 Payment and Late Charges. Reseller shall make payment in full, by Federal
wire transfer or by good check for immediately available funds, of each of
Cingular's invoices not later than [*] days from the date of Reseller's receipt
of such invoice. Any amounts required to be paid hereunder will be deemed paid
when such funds are received at the location designated by Cingular from time to
time. Without limiting any other remedies that may be available to Cingular,
(including but not limited to Cingular drawing down on any letters of credit,
deposits or other security interests) if Reseller does not make payment in full
for all amounts due within [*] days from the date of Reseller's receipt of such
invoice, Cingular, upon written notice to Customer, shall have the right, but
not the obligation, to
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disconnect from the Cingular Services any or all of the MAN's to which such
delinquent payment relates and Cingular shall impose and Reseller shall pay a
reactivation charge to reactivate such Subscriptions. Nothing contained in this
Section 6 shall limit the rights of Cingular to declare Reseller in default upon
the occurrence of any of the events set forth in this Agreement, including but
not limited to failure to make a payment when due. Cingular shall provide such
wire transfer instructions to Reseller with Cingular's first invoice. Acceptance
of late or partial payments (even if marked "Paid In Full") shall not waive any
of Cingular's rights to collect the full amount due under this Agreement.
6.5 Credit Criteria. Reseller acknowledges and agrees that Reseller must satisfy
Cingular's credit criteria in effect from time to time to receive the Cingular
Services. Reseller hereby authorizes Cingular to investigate the credit history
of Reseller and gives Cingular permission to provide and exchange credit
information regarding Reseller with credit reporting agencies. Cingular shall
have the right from time to time to request that Reseller provide Cingular with
such information and documents, including but not limited to certified or
uncertified financial statements, banking references or trade references
(collectively, "Credit Information"), as may be necessary or useful in
Cingular's sole judgment to enable Cingular to determine Reseller's
creditworthiness or continued creditworthiness. Reseller shall provide such
information promptly upon Cingular's request. Until such time as Reseller
provides Cingular the Credit Information requested, or in the event that in
Cingular's sole reasonable judgment the Credit Information provided by Reseller
does not provide satisfactory evidence of Reseller's creditworthiness, then, in
addition to any other rights Cingular may have under this Agreement or
applicable law, but correlative to Reseller's creditworthiness, Cingular shall
have the right to reasonably withhold, limit or terminate use of the Cingular
Services hereunder, to set such reasonable additional credit terms for
activation, use or continued use of the Cingular Services (including but not
limited to requiring use of letters of credit) as Cingular may reasonably deem
appropriate, or to terminate this Agreement upon written notice to Reseller.
6.6 Other Costs. In addition to other charges due hereunder, Cingular may bill
Reseller for Cingular's reasonable cost of complying with any subpoena, court
order, or other process relating to Reseller's service. Reseller may bill
Cingular for Reseller's reasonable cost of complying with any subpoena, court
order, or other process relating to Cingular's business.
6.7 Disputed Charges. If Reseller disputes part of the monthly bill, Reseller is
required to notify Cingular in writing and to submit appropriate documentation
justifying such dispute to Cingular as soon as it is aware of the dispute, but
in no event later than the sixty (60) days after the receipt of such invoice or
such dispute is waived. Notwithstanding any such dispute, Reseller shall pay the
full amount of any such bill pending the resolution of such dispute. Cingular
will respond to Reseller's written dispute within thirty (30) days of receipt of
such dispute. Cingular and Reseller shall use good faith and commercially
reasonable efforts to resolve all disputes and Cingular shall promptly refund
any amounts due upon dispute resolution. If the dispute is not resolved within
fifteen (15) days of Reseller's receipt of Cingular's response, the parties may
escalate the matter to senior management.
6.8 Deposits and Letters of Credit.
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6.8.1 Effective January 1, 2004, Wynd shall open, or cause an affiliate of Wynd
to open, a letter of credit (the "First L/C") in favor of Cingular, with [*] or
another commercial banking institution of Wynd's choice with at least
$100,000,000 in assets, subject to Cingular's reasonable approval, in the amount
of [*]; provided, however, said First L/C shall only be closed upon the earlier
of (i) the issuance of Second L/C (as such term is defined below) or the
expiration or termination of the Agreement other than a termination by Cingular
for an uncured material breach (as such term is defined below) by Wynd. In the
event that Wynd does not make any payment on the date and in the amount as set
forth herein, Cingular shall be permitted to draw down (a "First L/C Draw Down")
for such unpaid amount upon the First L/C at any time after 12:00 noon on the
[*] business days following the day payment was to have been made by Wynd.
Within [*] business days of Wynd's receipt from Cingular of a First L/C Draw
Down, Wynd shall be obligated to replenish the First L/C to its original amount
unless a First L/C Draw Down is made in connection with the expiration or mutual
termination of the Agreement. Wynd's failure to replenish the First L/C within
the time frames set forth in the paragraph shall be deemed a material breach of
this Agreement, and such failure shall give rise to Cingular having the right
but not the obligation to terminate this Agreement.
6.8.2 No later than [*] (the "Financing Date"), Wynd shall open, or cause an
affiliate of Wynd to open, a second letter of credit (the "Second L/C") in favor
of Cingular, with [*] or another commercial banking institution with at least
$100,000,000 in assets of Wynd's choice, subject to Cingular's reasonable
approval, in the amount of [*] (the "Second L/C Amount"); provided, however,
said Second L/C shall only be closed upon the expiration or termination of the
Agreement other than a termination by Cingular for an uncured material breach
(as such term is defined below) by Wynd. Cingular shall be permitted to draw
down (a "Second L/C Draw Down") upon the Second L/C only in the event and to the
extent that any invoice remains unpaid by Wynd for more than [*] days from the
invoice date as to any payment under this Agreement or the New Reseller
Agreement. Wynd agrees that the Second L/C Amount shall always be the greater of
(i) [*] or (ii) [*] times the most recent invoice issued by Cingular to Wynd. In
the event that the then current Second L/C Amount is less than [*] times the
most recent invoice, Wynd shall within [*] days written notice from Cingular,
increase the Second L/C Amount such that the Second L/C Amount is equal to [*]
times the most recent invoice and such amount shall then be deemed to be the
Second L/C Amount. Within [*] business days of its receipt of notice from
Cingular of a Second L/C Draw Down, Wynd shall be obligated to replenish the
Second L/C to its original amount unless a Second L/C Draw Down is made in
connection with the expiration or mutual termination of the Agreement.
6.8.3 The fact that a deposit or other security arrangement has been made by
Reseller neither relieves the Reseller from complying with Cingular's
requirements on the prompt payment of bills on presentation nor constitutes a
waiver or modification of the requirements of Cingular providing for the
discontinuance or termination of Service for non-payment of any sums due
Cingular for service rendered.
6.8.4 When Service is terminated, the amount of the cash deposit will be
credited against the Reseller's final bill and any credit balance that may
remain will be refunded within [*]
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days after full payment. In the event security other than a deposit is posted,
Cingular shall release each security [*] days after satisfaction of such
accounts.
7. USE OF THE HANDHELDS AND CINGULAR SERVICES
7.1 Handhelds and Other Devices Must Be Approved. Reseller shall be responsible
for assuring that all Handhelds and other radio modem devices used by
Subscribers have been approved by Cingular for use with the Cingular Services
ordered and on the Cingular Facilities in accordance with procedures and
technical specifications established by Cingular from time to time during the
Term of this Agreement. Furthermore, such Handhelds shall comply with all
applicable laws, rules, and regulations, including without limitation the rules
and regulations of the Federal Communications Commission ("FCC") concerning the
licensing of end users of Specialized Mobile Radio Service facilities and the
FCC type approval of end user equipment.
7.2 Requirements for Use of the Cingular Services. Reseller and Subscribers
shall use the Cingular Services in compliance with the following requirements.
If Reseller or any Subscriber violates any of these requirements, then Cingular
shall have the right to terminate Cingular Service to the offending Subscription
without notice to Reseller or any Subscriber.
7.2.1 Reseller and its Subscribers shall use the Cingular Services in
compliance with Federal Communications Commission ("FCC") and other
federal, state and local laws, rules and regulations and shall not under
any circumstances represent itself as the FCC authorized provider of the
Cingular Services.
7.2.2 Reseller and its Subscribers shall not use the Cingular Services to
transmit obscene, indecent, harassing, profane, abusive, false, illegal or
deceptive messages.
7.2.3 Reseller and its Subscribers shall not i) activate Handhelds or
other radio modem devices unless they are approved by Cingular, ii)
activate Handhelds or other radio modem devices which communicate with the
Cingular Facilities until they have been registered by Cingular on the
Cingular Facilities, iii) use Handhelds or other radio modem devices other
than as the radio modem was designed or configured to operate at the time
of approval, iv) transmit excessive retry messages or v) permit the
Handheld or other radio modem device to consume network capacity that
exceeds that reasonably anticipated based on the radio modem and software
application design or based on the use intended and disclosed by Reseller
to Cingular.
7.3 From time to time Reseller shall provide Cingular selected information
related to each Subscriber, such information minimally to contain the MAN and
zip code of each Subscriber activated on the Cingular Facilities. Cingular
agrees that this is information is confidential and shall only be used to (i)
assist in Cingular the planning of the Cingular Facilities, or (ii) to
compensate Cingular's commission based sales team.
Cingular Service and Coverage Limitations and Recommended Analysis and Testing.
Reseller acknowledges that the Cingular Services are subject to transmission
limitations
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caused by conditions such as, operating characteristics of Reseller or
Subscriber selected hardware, Handhelds, atmospheric, topographical, operating
characteristics of mobile terminal devices, and other like conditions. Cingular
recommends that Reseller perform its own coverage analysis and test to determine
if the available coverage meets the Subscriber's requirements. Additionally,
Cingular Services may be temporarily suspended, refused, limited or curtailed
due to governmental regulations or orders, system capacity limitations,
limitations imposed by an underlying carrier, or because of equipment
modifications, upgrades, repairs or reallocations or other similar activities
necessary or proper for the operation or improvement of the Cingular Facilities
or the Cingular Services.
7.4 Non-disparagement. Reseller shall not do anything that would tend to
discredit, dishonor, reflect adversely upon, or in any manner injure the
reputation of Cingular or its services.
8. SINGLE LOCATION SUBSCRIPTIONS
Single Location Subscriptions. In the event that Reseller desires to activate or
authorize the activation for a single customer over any [*] day period of more
than [*] Subscriptions using the Cingular Services where Reseller should
reasonably anticipate that such Subscriptions will likely use the Services at a
"single location", ("Single Location Subscriptions") then Reseller shall obtain
the written approval of Cingular prior to activating or authorizing the
activation of any such Subscriptions. In the event that Reseller fails to obtain
the necessary pre-approval for Single Location Subscriptions, then Cingular has
the right, but not the obligation, to suspend or terminate providing the
Services to any or all of the Single Location Subscriptions. A "single location"
for purposes of this paragraph means a single building or series of buildings in
which Subscribers would connect to the Cingular Facilities through the same base
station. The parties agree that the approval process set forth in this paragraph
is to assist in Cingular Facility single location capacity planning, and that
nothing herein creates any additional or further warranty by Cingular with
respect to the Cingular Facilities or Cingular Services.
9. CONFIDENTIAL INFORMATION, CPNI AND ADVERTISING
9.1 Use of Confidential Information. The recipient will use Confidential
Information disclosed in connection with performance under this Agreement only
for the purposes of performing its obligations under this Agreement.
9.2 Disclosure of Confidential Information. Confidential Information disclosed
under this Agreement by one party to the other will be protected by the
recipient from further disclosure, publication, and dissemination to the same
degree and using the same care and discretion as the recipient applies to
protect its own confidential or proprietary information from undesired
disclosure, publication and dissemination. Reseller's customer information shall
be considered Confidential Information. Except as set forth in
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the following paragraph, neither party will disclose the other's Confidential
Information to any affiliate or other third party, without prior written consent
from the other party. If Confidential Information is required by law,
regulation, or court order to be disclosed, the recipient must first notify the
disclosing party and permit the disclosing party to seek an appropriate
protective order.
9.3 Disclosure to Employees and Consultants. Confidential Information disclosed
under this Agreement may be disclosed to a receiving party's employees
(including contract employees) or consultants who participate in the Cingular
Services and who have agreed to a confidentiality obligation at least as
restrictive as provided in this Section 9. The receiving party shall maintain
adequate procedures to ensure that all of the persons to whom it discloses or
provides access to Confidential Information comply with the restrictions set
forth herein.
9.4 Irreparable Harm. The parties recognize that disclosure of Confidential
Information in violation of this Agreement will result in irreparable harm. Each
party shall have the right to injunctive relief in the event of a disclosure in
violation of this Agreement.
9.5 Advertising.
9.5.1 Reseller may, at its own expense market, promote, and advertise the
Cingular Services. Reseller will not in any manner use, display,
broadcast, or disseminate any advertising or promotional material which
contains any (i) material misrepresentations, or omits to state a material
fact, with regard to Cingular or the Cingular Services, or (ii) statement
in derogation of Cingular or the Cingular Services. Anything to the
contrary herein notwithstanding, Reseller shall, prior to its proposed use
of any advertising or promotional material referring to Cingular, or the
Cingular Services, submit a copy of such material to Cingular for
Cingular's prior written approval, which approval shall not be
unreasonably withheld.
9.5.2 Neither party to this Agreement shall without the written consent of
the other party (i) make any news releases, public announcements, or
denials or confirmations of the same, concerning all or any part of the
Agreement or any discussions or negotiations between the parties, (ii) in
any manner advertise or publish the fact that the parties have entered
into the Agreement, or (iii) disclose any details of the Agreement
(whether or not Confidential Information) to any third parties. The
parties deem the terms and conditions of the Agreement to be Confidential
Information.
10. TERM
10.1 Initial Term. The initial term of this Agreement shall commence as of the
date hereof and shall continue, unless sooner terminated pursuant to the
provisions hereof, until the date that shall be Two (2) years after the
Effective Date (the "Initial Term"), and shall automatically renew on annual
basis subject to Section 10.2 ("each such renewal a "Renewal Term"), unless
terminated as provided in Section 11 or unless one party provides the other
party of written notice of such party's intent not to renew, such notice to be
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provided at least [*] days before the expiration of the Initial Term or any
Renewal Term as the case may be.
10.2 No Obligation to Renew. Nothing in this Agreement will be deemed to create
any express or implied obligation on either party to renew or extend this
Agreement or to create any right to continue this Agreement on the same terms
and conditions contained herein. Reseller understands that Cingular intends to
review its Value Added Reseller strategy from time to time and the terms and
conditions of this Agreement on an ongoing basis and may require execution of an
amended form of this Agreement as a condition of renewal.
11. TERMINATION
11.1 Legal and Regulatory Requirements. This Agreement shall terminate
automatically (with notice reasonably provided thereafter to Reseller) and
without liability or further obligation of either party to the other if any of
the following events (the "Termination Events") occurs.
11.1.1 Termination is required by the FCC or Cingular loses its authority
or licenses to operate the Cingular Facilities by termination, suspension,
non-renewal or otherwise. It is provided, however, that in the event
Cingular loses its authority or licenses to operate only a part of the
Cingular Facilities, then this Agreement shall terminate only as to the
part of the Cingular Facilities materially affected. Nothing herein shall
be construed to diminish Cingular's responsibility to use all commercially
reasonable efforts to maintain all required authority and licenses in full
force and effect for the duration of this Agreement.
11.1.2 Termination is required by any law, rule, regulation, or valid
order or decision of a court of competent jurisdiction promulgated or made
from time to time, including, without limitation, the Telecommunications
Act of 1996 and the rules and regulations of the FCC. Nothing herein shall
be construed to require Cingular to seek waiver of any law, rule,
regulation, or restriction, or seek judicial review or appeal of any court
order.
11.2 Events of Default. On the occurrence of any Event of Default (as
hereinafter defined), either party may, upon written notice to the defaulting
party (the "Defaulting Party"), terminate this Agreement without liability to
the Defaulting Party. Each of the following constitutes an Event of Default.
11.2.1 Failure by the Defaulting Party to perform a material term or
condition of this Agreement unless such failure is corrected within [*]
days of notice from the other party advising the Defaulting Party in
reasonable detail of the failure (each an "uncured material breach").
11.2.2 Reseller's failure to pay any sums due and payable as and when
required under this Agreement.
11.2.3. A party's insolvency or failure to pay debts as they come due.
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11.2.4 [*]
11.2.5. A party becoming subject to any proceeding under the Bankruptcy
Act or similar laws, provided that if such proceeding is involuntary, the
party shall have ninety (90) days to have such proceeding dismissed before
such proceeding becomes an Event of Default.
12 EFFECT OF TERMINATION
12.1 In the event that this Agreement should be terminated or not renewed for
any renewal Term as the result of written notice by Cingular to Reseller
pursuant to Section 11 above, such termination shall not affect or diminish
Reseller's obligation to make payment to Cingular for Services provided before
or after the date of termination, and such obligation shall survive termination
of this Agreement.
12.2 If the Agreement is terminated for the occurrence of an Event of Default by
Reseller, Cingular may thereafter notify the Subscribers in any manner
including, but not limited to calling, text messaging, or any other form of
communication in order to inform such Subscribers as to how they may maintain
Cingular Services, (or Reseller Services to the extent that such Reseller
Services are available to Cingular), after termination of this Agreement if they
so desire. Reseller agrees to cooperate with Cingular to enable Subscribers to
continue Cingular Services with Cingular with minimal disruption after
termination including, but not limited to, providing Cingular with its
Subscriber list.
12.3 After termination of this Agreement, Cingular has no obligation to continue
the Cingular Services for any Subscriber or to arrange for any transfer or
return of Products owned by Reseller; however, if Cingular decides to continue
the Cingular Services for Subscribers after termination of this Agreement,
Cingular and Reseller agree to cooperate to minimize the disruption in providing
the Cingular Services for such Subscribers.
12.4 Upon any termination of this Agreement, Reseller shall cease its efforts to
activate new subscribers to the Cingular Services, however, the parties agree to
cooperate in good faith to effect an orderly wind-down of the prior subscriber
relationship created under this Agreement, provided however that Reseller
remains in compliance with the terms and conditions of this Agreement.
13. LIMITED WARRANTY
13.1 Reseller Warranties. Reseller represents and warrants to Cingular as
follows:
13.3.1 it is a corporation duly organized, validly existing, and in good
standing under the laws of the state of its incorporation, and has all
requisite corporate power and authority to own, operate, and lease its
properties and carry on its business as now being conducted, and to enter
into this Agreement and perform its obligations hereunder;
13
13.3.2 the execution and delivery of this Agreement has been duly and
validly authorized and approved by all necessary Reseller corporate action
and this Agreement is valid and binding upon it in accordance with its
terms;
13.3.3 the execution and carrying out of this Agreement and compliance
with the provisions hereof by it will not violate any provision of law,
will not, with or without the giving of notice and/or the passage of time,
conflict with or result in the breach of any of the terms or conditions
of, or constitute a default under, any indenture, mortgage, agreement, or
other instrument to which it is a party or by which it is bound;
13.3.4 the sale of the Cingular Services shall only be in connection with
the sale of the Reseller Services and incidental to the Cingular Services,
which shall constitute the principal value to Subscribers of the Cingular
Services.
13.4 Cingular Warranties. Cingular represents and warrants to Reseller as
follows:
13.4.1 it is a limited partnership duly organized, validly existing, and
in good standing under the laws of the State of Delaware, and has all
requisite power and authority to own, operate, and lease its properties
and carry on its business as now being conducted, and to enter into this
Agreement and perform its obligations hereunder;
13.4.2 the execution and delivery of this Agreement has been duly and
validly authorized and approved by all necessary Cingular partnership
action and this Agreement is valid and binding upon it in accordance with
its terms;
13.5 Disclaimer. CINGULAR DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE
CINGULAR SERVICES and THE CINGULAR FACILITIES WHETHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CINGULAR SHALL HAVE NO
LIABILITY FOR PATENT OR COPYRIGHT INFRINGEMENT OR MISAPPROPRIATION OF TRADE
SECRETS WITH RESPECT TO any PRODUCTS, OR SOFTWARE USED IN CONNECTION WITH THE
SERVICES.
14. INDEMNITY
14.1 Reseller Indemnity. Reseller shall defend, indemnify, and hold harmless
Cingular its parents, successors, affiliates and agents from any claims,
damages, losses, or expenses (including without limitation attorney fees and
costs) incurred by Cingular in connection with all claims, suits, judgments, and
causes of action (i) for infringement of patents or other proprietary rights
arising from combining with or using any radio modem device , system or service
in connection with Cingular Facilities (ii) for libel, slander, defamation or
infringement of copyright or other proprietary right with respect to material
transmitted by Reseller or Subscribers over the Cingular Facilities or (iii)
injury, death or
14
property damage arising in connection with the presence, use or failure of the
Cingular Services, Handhelds or other radio modem devices.
15. LIMITATIONS ON LIABILITY
15.1 Limitations on Loss or Damage. Reseller's sole remedies for loss or damage
caused by partial or total failure of the Cingular Facilities or for delay or
nonperformance of any of the Cingular Services or any other obligation arising
from or related to this Agreement, regardless of the form of action, whether in
contract, tort (including negligence), strict liability or otherwise, shall be
Reseller's actual proven damages, if any, resulting solely from such failure,
delay, or nonperformance and limited solely to the amount paid by Reseller to
Cingular under this Agreement during such period of failure, delay, or
nonperformance. RESELLER RECOGNIZES THAT CINGULAR DOES NOT CONTROL THE INTERNET
AND THAT CINGULAR SHALL HAVE NO LIABILITY WHATSOEVER TO RESELLER OR ANY THIRD
PARTY CLAIMING BY OR THROUGH RESELLER FOR THE ACCURACY, TIMELINESS OR CONTINUED
AVAILABILITY OF THE INTERNET.
15.2 Disclaimer. AS A MATERIAL PART OF THE CONSIDERATION PAID BY RESELLER FOR
THE CINGULAR SERVICES, PROVIDED BY CINGULAR, RESELLER ON ITS OWN BEHALF AND ON
BEHALF OF THE SUBSCRIBERS, AGREES THAT CINGULAR SHALL IN NO EVENT BE LIABLE FOR
AND RESELLER HEREBY WAIVES ITS RIGHT AND THE RIGHT OF THE SUBSCRIBERS TO CLAIM
ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE
DAMAGES (INCLUDING LOST PROFITS), DIRECTLY OR INDIRECTLY RELATING TO OR ARISING
OUT OF THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT
SUCH DAMAGES WERE FORESEEN OR UNFORESEEN. THE FOREGOING DISCLAIMER SHALL APPLY
IN CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, RESELLER'S AND SUBSCRIBERS
INABILITY TO USE THE CINGULAR FACILITIES, THE CINGULAR SERVICES, THE SOFTWARE OR
THE PRODUCTS, OR ANY PART THEREOF, EITHER SEPARATELY OR IN COMBINATION WITH ANY
OTHER COMMUNICATIONS FACILITIES OR IN CONNECTION WITH ANY CINGULAR SERVICES,
PERFORMED OR NOT PERFORMED BY CINGULAR UNDER THIS AGREEMENT, OR A THIRD PARTY'S
UNAUTHORIZED ACCESS TO RESELLER'S OR A SUBSCRIBERS DATA TRANSMITTED OVER THE
CINGULAR FACILITIES OR THE CINGULAR SERVICES.
15.3 Cingular is not liable for damages for any accident or injury occasioned by
the use of the Services or the presence of the Handheld.
16. TECHNICAL SUPPORT
15
16.1 Reseller shall provide an adequate staff to receive and investigate
complaints and questions from the Subscribers relating to the Reseller Services
or the Cingular Services, and will report any trouble with the Cingular Services
to Cingular only upon reasonable belief that such trouble is due to reasons
other than the malfunctioning of Subscriber's equipment or Resellers Services.
Reseller, at no cost to Cingular, shall maintain adequate staff and equipment to
test Subscriber's equipment to verify the cause of complaints received by
Subscribers with respect to the Reseller Services.
16.2 Reseller shall provide Tier 1 customer support to Subscribers. Tier 1
support is the first level of customer support. Tier 1 support issues involve
customers' questions or complaints regarding the handheld features,
functionality, installation and operation of the Reseller Services, how to
questions, including, but not limited to questions about error messages,
questions on how to use the Cingular Services, the Reseller Services, or billing
questions.
16.3 Tier 2 problems are of a more technical nature and may include but are not
limited to questions concerning Cingular's network. For Tier 2 questions, the
Reseller's Customer Support Representative will contact Cingular's Support Group
by calling 800-[*]. Reseller shall provide the following information at the time
the call is placed to the Cingular Tier 2 support group:
MAN (Mobitex Access Number)
MSN (Manufacture Serial Number)
Detailed description of the problem
Location of the radio in respect to surrounding structures
List of all troubleshooting steps previously taken
Cingular's Support Group will be available on a 24 hour by 7 day a week basis
and will respond to Reseller's inquires within 24 hours and provide at least 24
hour rolling updates to any issues that cannot be resolved within 24 hours.
17. INDEPENDENT CONTRACTORS.
Reseller and Cingular shall at all times be, and represent themselves to be,
solely independent contractors each acting on their own account in all
transactions involving the Cingular Services. Nothing in this Agreement shall be
construed to make either party (or any person employed by either party) an
employee of the other party. Neither party shall have any authority to bind or
commit the other party in any respect or to accept legal process on behalf of
the other party. Without limiting the generality of the foregoing, neither party
shall be liable to any agent, reseller, subcontractor, supplier, employee, or
customer of the other party for any commission, compensation, remuneration,
benefit, damage, or claim of any nature whatsoever. Reseller shall not, in any
manner whatsoever, represent itself as the operator of the Cingular Facilities
or the provider of the Cingular Services, but shall identify Cingular as the
entity authorized to operate the Cingular Facilities and provide the Cingular
Services and represent itself only as an authorized reseller of the Cingular
Services.
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18. DISPUTE RESOLUTION.
18.1 The parties agree to settle any dispute arising out of or related to this
Agreement through consultation and negotiation in good faith and in the spirit
of mutual cooperation. Any dispute arising out of or related to this Agreement
that cannot be resolved by negotiation shall be settled by binding arbitration
in accordance with the J.A.M.S./ENDISPUTE Arbitration Rules and Procedures
("Endispute Rules"), as amended by this Agreement. Such arbitration shall be
held at a location agreed upon by the parties. The parties will jointly select
one (1) independent arbitrator familiar with the wireless telecommunications
industry, provided that if the parties cannot agree on an arbitrator, the
selection shall be made by J.A.M.S./ENDISPUTE in accordance with the Endispute
Rules. Any award rendered by the arbitrator shall be conclusive and binding upon
the parties hereto, provided that any such award shall be accompanied by a
written opinion of the arbitrator giving the reasons for the award. The costs of
arbitration, including the fees and expenses of the arbitrator, shall be shared
equally by the parties unless the arbitration award provides otherwise. Each
party shall bear the cost of preparing and presenting its case.
18.2 The parties agree that this provision and the arbitrator's authority to
grant relief shall be subject to the United States Arbitration Act, 9 U.S.C.
1-16 et seq. ("USAA"), the provisions of this Agreement and the ABA-AAA Code of
Ethics for Arbitrators in Commercial Disputes. In the event of a conflict
between the USAA and the Endispute Rules, the Endispute Rules shall govern. In
no event shall the arbitrator have the authority to make any award that provides
for punitive or exemplary damages. The award may be confirmed and enforced in
any court of competent jurisdiction. All post-award proceedings shall be
governed by the USAA.
18.3 ALL DISCUSSIONS AND DOCUMENTS PREPARED PURSUANT TO ANY ATTEMPT TO RESOLVE A
DISPUTE UNDER THIS PROVISION ARE CONFIDENTIAL AND FOR SETTLEMENT PURPOSES ONLY
AND SHALL NOT BE ADMITTED IN ANY COURT OR OTHER FORUM AS AN ADMISSION OR
OTHERWISE AGAINST A PARTY FOR ANY PURPOSE INCLUDING THE APPLICABILITY OF FEDERAL
AND STATE COURT RULES.
19. HIRING OF EMPLOYEES.
During the Term of this Agreement and for a period of one (1) year after this
Agreement is terminated or performance is completed, whichever is later, neither
Cingular nor Reseller shall hire or solicit for employment, directly or
indirectly, any employee of the other Party directly involved in performance
under this Agreement unless the other Party has either, granted written
permission for the employment, or the employee left the employment of the other
Party more than one (1) year prior to the hiring or solicitation. Advertisements
in newspapers and trade publications by either Party do not constitute
solicitation.
20. RIGHT OF FIRST REFUSAL.
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If at any time during the Term of this Agreement or upon expiration or
termination of this Agreement, Reseller receives a bona fide offer from a third
party to solely purchase Reseller's Subscriber base obtained under this
Agreement, and Reseller desires to accept such offer, Reseller shall cause such
offer to be reduced to writing and shall notify Cingular in writing of such
offer. After Cingular's receipt of such notice, Cingular shall have a right of
first refusal with respect to Reseller's Subscriber base subject to such sale
for a period of fifteen (15) calendar days. Cingular may exercise such right of
first refusal as to Reseller's Subscriber base subject to such sale by written
notice to Reseller, to purchase promptly under the terms and conditions
identical in all material respects to the terms and conditions of the third
party's offer. Reseller shall not agree to any such sale to a third party until
after the date of expiration or termination of this Agreement, unless otherwise
consented to, in writing, by Cingular, which consent shall not be unreasonably
withheld, delayed or conditioned.
21. NOTICES
Except as otherwise provided in this Agreement, all notices or other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person or sent over night delivery by Federal
Express or Airborne Express, and, if to Reseller, addressed to Reseller at:
GoAmerica, Inc., 433 Hackensack Avenue, Hackensack, New Jersey 07601 to the
attention of Chief Executive Officer, with a copy to General Counsel at the same
address, and, if to Cingular, addressed to Cingular Interactive, L. P. at 5565
Glenridge Connector, Atlanta, Georgia 30342 to the attention of President, with
a copy (which shall not constitute notice) to General Counsel.
22. FORCE MAJUERE
Neither Cingular nor Reseller shall be liable to the other for any delay or
failure in performance hereunder due to fires, strikes, threatened strikes,
stoppage of work, embargoes, requirements imposed by governmental regulations,
civil or military authorities, acts of God (including, by way of example,
weather conditions), the public enemy, acts of terrorism or other causes which
are beyond the control of the party unable to perform.
23. ADDITIONAL UNDERTAKINGS
Cingular agrees to provide Reseller certain upgraded gateway software for the
Wynd Gateway for [*] and subject to a mutually agreed upon software license, the
terms and conditions to be negotiated in good faith (the "Upgrade License").
Contemporaneous with the signing of the Upgrade License, the parties agree to
enter into a gateway software maintenance agreement where the annual fee shall
be [*] (the "Maintenance Agreement"). If and when the Upgrade License and
Maintenance License have been signed by all parties and the required payments
therein made to Cingular (the "Gateway Contingency"), then on the first day of
the first full month following the satisfaction of the Gateway Contingency, the
Activation Fees set forth in Schedule A shall be reduced to [*].
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24. GENERAL
24.1 Remedies Nonexclusive. Except where expressly provided, no remedy herein
conferred upon either party is intended, nor shall it be construed to be
exclusive of any other remedy provided herein or as allowed by law or in equity,
but all such remedies shall be cumulative.
24.2 No Third Party Beneficiaries. Except as otherwise specifically stated in
this Agreement, the provisions of this Agreement are for the benefit of the
parties hereto and not for any other person.
24.3 Precedence Over Purchase Order Terms and Conditions. Any additional or
different terms of Reseller's purchase order, whether or not such terms
materially alter this Agreement, shall be deemed objected to by Cingular and of
no force and effect unless this Agreement is expressly amended by the parties
hereto. Execution of a Reseller's purchase order shall not operate as an
amendment to this Agreement. Whenever printed, typed, stamped or written
provisions of Reseller's purchase order conflict with this Agreement, this
Agreement shall control.
24.4 Waivers of Default. Waiver by either party of any default by the other
party shall not be deemed a continuing waiver of such default or a waiver of any
other default.
24.5 Survival. The terms and conditions and warranties contained in this
Agreement that by their sense and context are intended to survive the
performance hereof by either or both parties hereunder shall so survive the
completion of performance, cancellation or termination of this Agreement.
24.6 Headings and Captions. All paragraph headings and captions used herein and
in the schedules hereto are for the convenience of the parties only and shall
not be part of the text hereof, or affect the meaning of this Agreement.
24.7 Governing Law. The Agreement shall be construed in accordance with the laws
of the State of Georgia applicable to Agreements executed and wholly performed
within that State.
24.8 Severability. If a provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render unenforceable the entire Agreement, but rather (unless a failure of
consideration would result there from) the entire Agreement shall be construed
as if not containing the particular invalid or unenforceable provision or
provisions, and the rights and obligations of Cingular and Reseller shall be
construed and enforced accordingly.
24.9 Licenses. Reseller shall promptly provide Cingular with all such
information as Cingular shall reasonably request with respect to matters
relating to Cingular's and Reseller's compliance with the rules and regulations
of the FCC.
24.10 Assignment and Delegation. Cingular may assign this Agreement without
notice to the Reseller. Reseller shall not assign this Agreement, without the
prior written consent of Cingular, which shall not be unreasonably withheld.
Cingular may perform all of the Cingular Services to be performed under this
Agreement directly or may have some or all of the Cingular Services performed by
its subsidiaries, affiliates or subcontractors without notice to the Reseller.
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24.11 Entire Agreement. This Agreement, together with the schedules, contains
the entire agreement between the parties and there are merged hereinto all prior
representations, promises, and conditions in connection with the subject matter
hereof. Any representations, promises, or conditions not incorporated herein
shall not be binding upon either party and this Agreement supersedes and is in
lieu of all existing agreements or arrangements between the parties with respect
to the subject matter hereof, and this Agreement expressly terminates the Value
Added Reseller Agreement, dated as of August 31, 1999 (as amended on March 9,
2000, March 21, 2000 and December 13, 2001, the "GoAmerica Agreement"), but not
the Letter Agreement dated May 29, 2003 (the "May 03 Letter"); and the Value
Added Reseller Agreement, dated August 15, 1994 (as amended on or about
September 1, 1995, May 1, 1996, September 1, 1996, January 1, 1998, August 10,
1998 and November 1, 1999, the "Wynd Agreement").
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized representatives.
GOAMERICA, INC. CINGULAR INTERACTIVE, L.P.
By: /s/ Daniel R. Luis By: /s/ Charles Nelson
Chief Executive Officer President
December 30, 2003 December 30, 2003
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SCHEDULE A
TO VALUE ADDED RESELLER AGREEMENT
FOR
CINGULAR INTERACTIVE SERVICE
- --------------------------------------------------------------------------------
A1 - Pricing Schedule -
I. One Time Charges
Price Plan 1 - Activation Fee and Reactivation Fee per Subscriber $[*]
Price Plan 2- Activation Fee and Reactivation Fee per Subscriber - [*]
B. Host/Server Installation Fee
----------------------------
Frame Relay
Installation Fee.............................................$ [*]
Reconfiguration Fee ......................................$ [*]
IAS
Installation Fee.............................................$ [*]
Reconfiguration Fee..........................................$ [*]
C. Optional Services
-----------------
Host Group Address Installation Fee .................................$ [*]
Host Group Reconfiguration Fee.......................................$ [*]
ISDN (Back-Up to other Host Connection)..............................$ [*]
Dial-Up (Back-Up to other Host Connection)...........................$ [*]
II. Host Connection Charges
-----------------------
In addition to Cingular's Host Connectivity Charges set forth below,
Reseller arranges and pays for the Leased Line/Frame Relay provided by its
carrier of choice and pays for all fees and charges associated with
Reseller's choice of connectivity options.
III. Leased Line Connections/Frame Relay Connections
-----------------------------------------------
X.25 Fixed Connection - 9.6 kbps......................... $ [*] per month
X.25 Fixed Connection - 19.2 kbps........................ $ [*] per month
X.25 Fixed Connection - 38.4 kbps........................ $ [*] per month
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X.25 Fixed Connection - 56.0 kbps........................ $ [*] per month
X.25 PDN Fixed Connection - 9.6 kbps..................... $ [*] per month
Additional Fixed MAN Connection.......................... $ [*] per month
Host Group Address....................................... $ [*] per month
(Available only with an existing X.25 connection)
Frame Relay Connections
-----------------------
16 Kbps (5 packets per second)........................... $ [*] per month
32Kbps (10 packets per second)........................... $ [*] per month
48 Kbps (15 packets per second).......................... $ [*] per month
64 Kbps (20 packets per second).......................... $ [*] per month
Host Group Address....................................... $ [*] per month
IV. Monthly Subscriber Unit Charges
-------------------------------
At the time that Reseller requests Cingular to activate a Subscription on
the Cingular Facilities, Reseller shall designate one of the following
Price Plans for such Subscription. If the Reseller fails to designate a
plan, then the default plan shall be Price Plan 2.
Price Plan 1 - (Sometimes referred to as Wynd account #[*]) Monthly
Recurring Charge - $ [*] for each Subscription activated on the Cingular
Facilitiesfor unlimited usage.
Price Plan 2 - (Sometimes referred to as Account #[*])
Monthly Recurring Charge - $ [*] for the first [*] kilobytes of usage for
each Subscription activated on the Cingular Facilities.
For usage greater than [*] kilobytes, the overage charge is $ [*]
for each kilobyte used greater than [*] kilobytes but less than [*]
kilobytes, PLUS $ [*] for each kilobyte used greater than [*], but less
than [*], PLUS $ [*] for each kilobyte used greater than [*] kilobytes.
[*]
V. Mobile-to-Mobile Charges
------------------------
[*]
The number of bytes contained in Mobile-to-Mobile transmissions shall be
listed separately in each monthly invoice issued by Cingular to Reseller,
and shall be billed at the then applicable charges in Section IV.
VI. Optional Charges
----------------
Monthly Billing Administration Fee....................... $ [*]
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(Includes monthly Reseller Traffic Detail Report and Host Detail Report in
Cingular's standard electronic format and/or hard copy)
Troubleshooting Services will be charged at the following rates when
Cingular resolves technical problems that are not caused by problems
occurring in the Cingular Facilities. Rates do not include expenses
incurred for travel, lodging, meals and cost of materials and equipment,
which will be charged separately
Per Hour (Minimum Charge [*] hours)...................... $ [*]
Per Day.................................................. $ [*]
A2 - Cingular Services - The Cingular Services to be provided by Cingular under
the Agreement shall be:
Access to the Cingular Facilities on a usage basis.
A3 - Reseller Services - The Reseller Services shall consist of
1. the training, billing, collection and customer support services
provided by Reseller to Subscribers for the Reseller Services; and,
2. certain network and routing services provided from Reseller's
messaging gateway that utilize the Interactive Paging modules of
gateway software licensed by Cingular (f/k/a BellSouth Wireless Data
L.P) to Reseller pursuant to the Agreement between RAM/BSE
Communications, L.P. and Reseller dated August 15th, 1994, for the
limited purpose of providing wireless TTY and related value added
services for the deaf and hard of hearing market
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