Cellular Digital Packet Data Reseller Agreement - Ameritech Mobile Communications LLC d/b/a Cingular Wireless, Detroit SMSA LP, Cincinnati SMSA LP and At Road Inc.
CELLULAR DIGITAL PACKET DATA RESELLER AGREEMENT
DETROIT SMSA LIMITED PARTNERSHIP AND CINCINNATI SMSA LIMITED PARTNERSHIP
THIS AGREEMENT (hereafter referred to as the "Agreement") is made and entered
into on this 10th day of January, 2002 (the "Effective Date"), by and between
Ameritech Mobile Communications, LLC d/b/a Cingular Wireless on behalf of
Detroit SMSA Limited Partnership and Cincinnati SMSA Limited Partnership
(collectively referred to as the "Company") and At Road, Inc., a Delaware
corporation (the "Customer"); throughout this Agreement, the Company and the
Customer are sometimes jointly referred to as the "Parties"). This Agreement
incorporates by reference all exhibits attached hereto, along with any other
exhibits subsequently put into effect by the parties and any and all orders
subsequently submitted by the Customer and accepted by the Company.
1. Purpose.
The Company has developed a Cellular Digital Packet Data System which
provides data communications between cellular mobile radio units and/or
mobile data units in the greater Detroit metropolitan area; and the greater
Cincinnati, Columbus and Dayton metropolitan area. The Company wishes to
sell, and the Customer wishes to buy, the services which provide access to
such system, and certain other optional features for use in the connection
with such system, all upon the terms and conditions set forth in this
Agreement.
2. Definitions.
When used in this Agreement, the following terms shall have the following
meanings:
2.1 Affiliate
Any other entity that is owned at least 50 percent by a party to this
Agreement. In the case of Company, affiliate also shall mean Ameritech
Corporation and any successor to Ameritech Corporation, whether by
change of name, dissolution, merger, consolidation, reorganization or
otherwise and any subsidiary of Ameritech Corporation or its
successor.
2.2 Cell Site
A building location containing the antenna and radio equipment
necessary to complete a connection between a Mobile Data Unit and the
mobile telephone switching office.
2.3 Cellular Geographic Service Area or CGSA
A specific geographical area in which the Company is authorized under
a Federal Communications Commission ("FCC") license to provide
Service.
2.4 Cellular Digital Packet Data (CDPD)
A service utilizing packet switching technology in which Packets are
transported via M-ES to and/or from the MD-IS serving that M-ES via
cellular frequency.
2.5 Cellular System
A mobile communications system or network by means of which Service is
provided.
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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2.6 Data Circuit
A telecommunications line carrying data transmissions between two end
points.
2.7 EID
Electronic Identification Number which refers to the equipment
identifier.
2.8 End User
The individuals or entities obtaining access to Service through
Customer.
2.9 Fixed End System (FES)
An external data application system/computer and router which is
owned, operated administered and maintained by Customer and which
provides connectivity between Company's CDPD Network and a Mobile End
System.
2.10 Interoperability
Refers to the interservice agreement among certain CDPD carriers (see
Exhibit 1 for a list of such carriers) to provide data services to the
other carriers' authorized users who are homed or visiting in such
serving carrier's service area, in accordance with its own tariffs and
the terms and conditions of the interservice agreement.
2.11 IP Address
Internet Protocol (IP) address with access to the Cellular Digital
Packet Data System which is assigned to the Customer by the Company
and which shall only be used by Customer or an End User with one
Mobile Data Unit having a unique NEI.
2.12 Marks
Either party's name, corporate logo, and trademarks.
2.13 Mobile Data Unit
A single unit of radio data equipment (for example: a modem with built
in mobile radio transmitter and receivers) having a unique EID for use
in connection with its own unique IP Address which is both capable of
being moved from location to location, and technically and
operationally compatible with the Cellular Digital Packet Data System.
2.14 Mobile End System
Any CDPD enabled device that terminates on the mobile end of a
communicated signal such as a CDPD enabled modem, mobile phone, PDA,
laptop, etc.
2.15 MSA
A Metropolitan Statistical Area.
2.16 NEI
Network Entity Identifier. The IP Address that uniquely identifies a
given Mobile End System over the Cellular and CDPD Network.
2.17 RSA
A Rural Service Area.
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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2.18 Service
The CDPD communication service and associated support services
provided to Customer by the Company.
2.19 Service Area
Subject to Section 6, those portions of Ameritech's CDPD operating
areas as identified in Exhibit 2 hereto.
2.20 Usage
Specific periods of time during which the Customer and/or End User
uses the Cellular System and incurs Service charges.
3. Relationship Established.
3.1 The Customer and the company shall have the relationship of
independent contractors under this Agreement. Neither Party shall be
deemed to be the agent of the other nor have any authority with regard
to the other, except as specified in this Agreement (or in a separate
writing signed by both Parties). Neither Party shall have the right or
authority to act on behalf of the other Party, or to incur any
obligations chargeable to the other, by virtue of this Agreement.
Persons retained by either Party as employees or agents shall not be
deemed to be employees or agents of the other Party because of this
Agreement.
3.2 The Customer shall not, under any circumstances, represent itself as
the FCC-authorized provider of Service, or use the Company's Marks
except as provided herein. With the prior written approval of the
Company, which approval must be obtained on an item-by-item basis, the
Customer may use the Company's Marks in the Customer's advertising and
promotional materials. Any pre-authorized use of Company's Marks by
Customer shall inure solely to the benefit of Company. Customer does
not acquire any ownership rights or interest in Company's Marks by
such pre-authorized use and customer shall not at anytime dispute
Company's ownership rights to the latter's Marks.
3.3 The Company shall not, under any circumstances, use Customer's
Marks except as provided herein. With the prior written approval of
Customer, which approval must be obtained on an item-by-item basis,
the Company may use the Customer's Marks in the Company's materials.
Any pre-authorized use of Customer's Marks by the Company shall inure
solely to the benefit of Customer. Company does not acquire any
ownership rights or interest in Customer's Marks by such pre-
authorized use, and Company shall not at anytime dispute Company's
ownership rights to the latter's Marks.
3.4 Neither party will do anything which would tend to discredit,
dishonor, reflect adversely upon, or in any manner injure the
reputation of the other party or its service.
3.5 Company has the right to review Customer's standard form of End User
contract and, upon Company's request, Customer shall provide accurate
copies of such contract to Company.
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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4. Term of Agreement.
4.1 This Agreement will take effect on the Effective Date and shall
continue in effect for one (1) year ("Initial Contract Period"). After
the Initial Contract Period expires, this Agreement shall be renewed
automatically for subsequent one (1) year renewal periods (the
"Renewal Periods"). The foregoing notwithstanding, either party may
terminate this Agreement at any time on ninety (90) day's prior
written notice of termination to the other party.
4.2 Except as otherwise set forth herein, the Customer is responsible for
all Service charges and related charges set forth on Exhibit 3 hereto
and incurred by the Customer and/or any End User while this Agreement
is in effect.
5. Duties of the Company.
5.1 The Company will provide Service to the Customer, on a non-exclusive
basis, at the rates and charges and under the terms and conditions
specified in this Agreement, provided that the Company is able to
obtain, retain and maintain suitable facilities, licenses and rights
for the construction and maintenance of the Cellular System without
unreasonable expense.
5.2 The Company does not provide to End-Users marketing, billing,
collection, direct End-User support, equipment, or any similar goods
or services under this Agreement.
6. Availability and Scope of the Service.
6.1 Service is available to properly activated Mobile Data Units when such
units are within the range of Cell Sites located in the Cellular
Geographic Service Areas served by Detroit SMSA Limited Partnership
and Cincinnati SMSA Limited Partnership. Service is also subject to
transmission limitations caused by atmospheric and other conditions,
both natural and artificial, which may adversely affect transmission
or transmission facilities. Service may be temporarily interrupted or
curtailed due to Cellular System modifications, upgrades, relocations,
repairs and similar activities reasonably necessary for the proper or
improved operation of the Cellular System. The Company shall have no
liability for its inability to provide Service under the circumstances
described in this Section, except as otherwise provided in Section
7.1.
6.2 This Agreement governs the resale of the Company's Service by Customer
only within the Service Area and nothing herein authorizes Customer to
resell the Services governed by this Agreement outside the Service
Area. The Company reserves the right to amend the Service Area
specified in Exhibit 2 at any time without a written amendment to
Exhibit 2; provided that, Company provides Customer ninety (90) days
prior written notice of such expansion or contraction which notice may
take the form of new coverage maps, zip code lists or e-mail
notification.
6.3 Upon reasonable request by Company, Customer shall prepare and submit
to Company a report containing Customer's six-month forecast of
anticipated new End Users so that Company can evaluate its capacity
requirements and ability to provide Service. Company understands that
the actual number of new End Users may differ from such forecasts and
that Customer does not make any representation or warranty with
respect to such forecasts, except that such forecasts, at the time
they were prepared, were prepared in good faith. Company shall
disclose information contained in such reports only to those
individuals in its organization who have a
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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need to know for purposes of planning its capacity requirements and
ability to provide the Service hereunder, and shall in no event use
such information for the purpose of competing with Customer.
7. Limitation of Company's Liability.
The Company has no control over the messages transmitted over its Service,
and occasional errors incident to the provision and use of Service are
inevitable. Therefore, Service is provided upon the following terms,
conditions and limitations. The Company's sole liability to the Customer and
any End User(s) is as set forth in this Section 7, and Customer's End User
contract shall reflect this limitation of liability.
7.1 Upon the Customer's request, a credit allowance (the "Credit
Allowance") will be made for any period of 12 hours or more during
which there occur any mistakes, omissions, interruptions, delays,
errors, failures or defects in Service, transmission, the Cellular
System and/or any other facilities furnished by the Company. The
Credit Allowance shall consist of a pro rata adjustment of the fixed
monthly charges billed by the Company for each affected Mobile Data
Unit. Any Service interruption will be measured from the time it is
(i) reported to or (ii) detected by the Company, whichever occurs
first. If any Mobile Data Unit is affected by such interruption for a
period of less than 24 hours, no adjustment shall be made. If a
Service interruption exceeds 24 hours, the length of the interruption
will be measured in 24 hour days from the time the interruption is
first reported to or detected by the Company. After the first 24 hours
of Service interruption, any and all additional periods greater than
12 hours up to and including 24 hours will be considered an additional
day. Any fraction of a day consisting of less than 12 hours will not
be credited. The Credit Allowance will be computed by dividing the
Company's fixed monthly charges by a standard 30 day month, and then
multiplying the result by the length of the Service interruption for
each affected IP. The Credit Allowance will never exceed the
applicable fixed monthly charges. Such an adjustment will fulfill the
Company's full and complete liability for any Service interruption,
and no other liability will attach to the Company as a result of any
Service interruption.
7.2 Company shall provide Customer reasonable notice, by e-mail
notification to the e-mail address set forth in Section 28, of any
known network outages or planned network maintenance.
7.3 The liability of the Company for (i) loss or damages arising out of
mistakes, omissions, interruptions, delays, errors, failures or
defects in Service, transmission, the Cellular System and/or any other
facilities furnished by the Company, or (ii) failing to maintain
proper standards of maintenance and operation and/or to exercise
reasonable supervision, shall be limited to Credit Allowances on
account thereof computed pursuant to Section 7.1, above.
7.4 Notwithstanding anything set forth in Section 7.1 and/or 7.3, above,
no Credit Allowance will be given for any Service interruptions caused
by the acts of the Customer and/or End User, or for any interruptions
caused by failure of equipment which is not a part of the Company's
Cellular System, or for any interruption caused by service which is
not provided by the Company.
7.5 In addition to the indemnities set forth in Section 13, the Customer
shall indemnify and save the Company harmless against (i) all claims
for libel, slander, or infringement of copyright for material
transmitted over the Service and (ii) all claims for infringement of
U.S. patents arising from the use of apparatus and systems belonging
to the Customer in combination and/or connection with the Service.
Customer will defend, at its expense, any action brought against
Company based upon a
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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claim as described in this Section 7.5, provided that Customer shall
have sole control of any such action or settlement negotiations, and
further provided that Company shall notify Customer promptly in
writing of such claim and shall give Customer all authority,
information and assistance reasonably necessary to settle or defend
such claim. Customer shall reimburse Company for incidental
out-of-pocket expenses incurred by Company in providing such
assistance. Customer shall not be liable for any costs or expenses
incurred without its prior written authorization.
7.6 Notwithstanding anything set forth in Section 7.1 and/or 7.2 above, no
Credit Allowance will be given, and the Company shall not, under any
circumstances, be liable for any failure to transmit, other Service
interruption, errors, defects or delays caused by acts of God, fire,
war, riots, government authorities or other causes beyond the
Company's control if Company uses its best efforts to mitigate the
effects, and gives Customer prompt written notice.
7.7 The Company is not liable for damages for any accident or injury
occasioned by the presence or the use of either the Service or the
Mobile Data Unit, including but not limited to any physical injury,
defacement or property damage which may result from the presence or
use of the Mobile Data Unit.
7.8 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL,
CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING LOST OR
ANTICIPATED REVENUES OR PROFITS RELATING TO THE SAME), ARISING FROM
ANY CLAIM RELATING TO THIS AGREEMENT, OR TO A PARTY'S PROVISION OF
SERVICE HEREUNDER, WHETHER SUCH CLAIM IS BASED ON CONTRACT, TORT
(INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF AN
AUTHORIZED REPRESENTATIVE OF THE OTHER PARTY IS ADVISED OF THE
POSSIBILITY OR LIKELIHOOD OF THE SAME. THE MAXIMUM LIABILITY TO
CUSTOMER UNDER THIS SECTION 7 SHALL BE LIMITED TO TWO HUNDRED THOUSAND
DOLLARS ($200,000).
8. Facility Modifications.
Customer acknowledges that the cellular data industry is a rapidly changing
industry and technology and as such Company shall not be liable to Customer
or to Customer's End Users if changes in any of the Cellular System,
operations, equipment, procedures, or Service:
8.1 Render obsolete any equipment, including but not limited to Mobile
Data Units, or software provided or used by Customer or any End User
in conjunction with use of the Service;
8.2 Require modification or alteration of such equipment or software; or
8.3 Otherwise affects the performance of such equipment or software.
Whenever reasonably possible, Company agrees to give not less than
ninety (90) days advance written notice to Customer of changes which
Company reasonably anticipates will result in the conditions described
in paragraphs 8.1 through 8.3, above. If no notice is given by Company
to Customer, then upon Customer's request, Company will provide notice
of changes, detailed description of such changes and assist Customer
to achieve interoperability.
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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9. Interoperability.
Customer hereby acknowledges and agrees that the Company is not responsible
for the billing practices, service charges or ultimately availability of
Interoperability services through carriers. Company is not obligated to
provide Service in areas where Company does not have Service, has not entered
into, or loses, an Interoperability agreement in an area or loses its roaming
agreement in an area. Company agrees, however, to make Interoperability
available to Customer in any MSAs or RSAs in which Company has an
Interoperability agreement on the terms and conditions contained in such
agreements.
10. Use of Service.
10.1 Service is furnished for use by the Customer and/or its End Users for
any lawful purpose, including resale by the Customer.
10.2 The Company will only accept Service change orders (including line
activation, termination, and/or any other changes in Service) directly
from the Customer or its employees or agents via electronic mail to an
address designated by the Company for such purpose.
10.3 Customer shall not engage in and shall not assist or participate in
any fraudulent activities in connection with the sale, provision or
use of Service. Customer shall be solely responsible for all risks,
expenses and liabilities incurred through the fraudulent activities of
Customer with respect to the Service provided hereunder. The Company
reserves the right to modify this Agreement, with the prior written
consent of Customer, to reflect modifications to Company's reseller
practices and procedures which introduce or implement fraud reduction
activities, but is under no obligation to introduce or implement any
such fraud reduction activities.
11. Fraud.
Upon detection by Customer of fraudulent activities, Customer shall notify
Company of such fraudulent activities as soon as practicable following
detection by Customer and advising Company to deactivate the IP address
without any, if applicable, deactivation fee.
12. No Warranty.
COMPANY AND ITS AFFILIATES MAKE NO WARRANTIES, EITHER EXPRESSED OR IMPLIED,
CONCERNING THE FACILITIES OR THE SERVICE, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. IT
IS INTENDED BY THE PARTIES THAT THIS SECTION SHALL APPLY TO CUSTOMER AND TO
ALL OF CUSTOMER'S AUTHORIZED USERS AND THAT THE CUSTOMER'S AUTHORIZED USER
CONTRACT SHALL REFLECT THIS EXCLUSION OF WARRANTIES IN A CLEAR AND
CONSPICUOUS MANNER BY INCLUDING SUCH PROVISION IN CUSTOMER'S AUTHORIZED USER
AGREEMENT. Customer expressly acknowledges that Company shall have no
liability except as provided in Section 7 of this Agreement for any failure,
defects, malfunctions or errors in the or for the provision of Service
hereunder to Customer or its End Users.
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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13. Indemnification and Insurance.
13.1 Customer will indemnify and hold harmless Company and its officers,
directors, employees, agents and assigns and its successors and
assigns from any and all liabilities, losses, obligations, expenses
(including without limitation reasonable attorneys' fees) and costs
arising in connection with any lawsuit, proceeding or other action
arising out of or resulting from (a) Customer's conduct of its
business; (b) Customer's breach of this Agreement; and (c) Customer's
unauthorized use of the Company's Marks or confidential information or
other proprietary property. Customer will defend, at its expense, any
action brought against Company based upon a claim as described in this
Section 13.1, provided that Customer shall have sole control of any
such action or settlement negotiations, and further provided that
Company shall notify Customer promptly in writing of such claim and
shall give Customer all authority, information and assistance
reasonably necessary to settle or defend such claim. Customer shall
reimburse Company for incidental out-of-pocket expenses incurred by
Company in providing such assistance. Customer shall not be liable for
any costs or expenses incurred without its prior written
authorization.
13.2 Customer will maintain during the term of this Agreement: (a) Workers'
Compensation insurance as prescribed by the law of the state in which
Customer's obligations under this Agreement are performed, (b)
Employer's Liability insurance with limits of at least $500,000 for
each occurrence, and (c) Commercial General Liability insurance
(including, but not limited to, products liability and contractual
liabilities) with combined single limits for each occurrence of at
least $1,000,000. Neither Customer nor any insurer shall have a claim,
right of action or right of subrogation against Company based on any
occurrence insured against under such insurance. Upon Company's
request, Customer shall furnish proof of insurance coverage.
14. Provision of the Mobile Data Unit.
14.1 The Customer and/or End User(s) must provide and maintain all Mobile
Data Units and Mobile End System and ensure both that they are
technically and operationally compatible with the Cellular System,
and that they comply with applicable FCC rules and regulations. The
Company shall have no responsibility for the provision, installation,
operation, quality of transmission or maintenance of any Mobile Data
Unit.
14.2 All Mobile Data Units shall operate in a manner which will not
interfere with Service to any other customers.
15. Support Services.
The provision of any and all support services is the responsibility of the
Customer. Company will not provide support services to End Users.
16. Use of Marks.
The Customer may describe itself as a "reseller of Ameritech Cellular
Service" but shall otherwise refrain from directly or indirectly holding
itself out as or otherwise creating any impression that it is sponsored,
authorized, endorsed by, affiliated with, or an agent of the Company, or of
Cingular Wireless, LLC or of SBC Wireless, LLC, or Ameritech Mobile
Communications, LLC, unless such affiliation or agency
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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relationship arises under other agreements between such parties. This
restriction extends, but is not limited, to the use of any trade names,
trademarks or logos used by such entities, or any colorable imitations of
any such name or mark in or as a part of any business name or trade name, or
in any other confusing or misleading manner. Authorized use of Company's
Marks shall be as set out in Section 3 herein. Notwithstanding the
foregoing, the Cingular logo may be used by Customer and/or agents or
affiliates of Customer to present PowerPoint presentations and for other
sales materials as deemed necessary by Customer. Printed sales materials may
be subject to Company approval.
17. Rates and Charges.
Except as otherwise set forth herein, the Customer agrees to pay the Company
for Service used by the Customer and/or any End User at the rates and
charges specified in Exhibit 3, (Pricing Plan).
18. Confidentiality.
Company and Customer may (but shall not be obligated to) exchange certain
Confidential Proprietary Information (as defined below) relating to this
Agreement. The disclosing party agrees to mark its Confidential Proprietary
Information with a suitable legend, such as "Confidential" at the time of
disclosure to the receiving party hereunder ("Confidential Proprietary
Information"). During the term of this Agreement, the receiving party agrees
to maintain the confidentiality of the disclosing party's Confidential
Proprietary Information furnished in oral, visual, written and/or other
tangible form by restricting disclosure of the disclosing party's
Confidential Proprietary Information to its employees who have a "need to
know" and not disclosing such Confidential Proprietary Information to any
third party except as authorized by the disclosing party in writing. The
receiving party agrees that such Confidential Proprietary Information shall
be handled with the same degree of care which the receiving party applies to
its own confidential information (but in no event less than reasonable
care). The receiving party agrees to use the disclosing party's Confidential
Proprietary Information only for purposes of performing its obligations
under this Agreement. The parties agree to exclude from the provisions of
this Agreement and the obligations of confidentiality: information which the
receiving party already had in its possession without confidential
limitation; information known or that becomes known to the general public
without breach of this Agreement; information that is received rightfully
and without confidential limitation. This Section 18 shall impose no
obligation of confidentiality upon a recipient with respect to any portion
of Confidential Proprietary Information received hereunder which is required
to be disclosed pursuant to a requirement of a judicial, administrative or
other governmental agency, provided that the receiving party provides
reasonable notice to the disclosing party of such requirement in order to
enable the disclosing party, at its expense, to seek a protective order or
such other remedy to prevent disclosure of the Confidential Proprietary
Information.
In the performance of this Agreement, Company agents and employees may come
into possession of information about Customer's End Users, including but not
limited to End User MINs (Mobile Identification Number) and Usage, or other
forms of identification of End User. Neither Company nor any person or
entity obtaining such information by or through Company may use any such
information except as required to provide Service to Customer under this
Agreement. Such information shall be treated as Confidential Proprietary
Information pursuant to this Section 18.
Upon termination of this Agreement, all Confidential Proprietary Information
and any copies thereof made by the receiving party shall be either destroyed
and the destruction certified by an officer of the receiving party, or, at
the disclosing party's written request, returned to the disclosing party.
The receiving party's
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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obligations under this Agreement to keep confidential and restrict use of
the disclosing party's Confidential Proprietary Information shall survive
such termination of this Agreement for a period of five (5) years.
19. Licensing.
Each party covenants and warrants that it will at all times maintain all
Federal, state and local licenses appropriate and necessary for the conduct
of its business and for the performance of this Agreement. Upon reasonable
written request, each party will provide true and correct copies of all such
licenses, together with appropriate evidence of all applicable renewals,
extensions or changes of such licenses, to the other party.
20. Taxes.
It shall be the Customer's sole responsibility both to collect and to remit
any and all taxes (however designated, levied or based) on Service or any
other item for which charges are imposed under this Agreement. Such
responsibilities shall include, but not be limited to: Federal, state and
local sales tax, gross receipts tax, privilege or excise taxes, and any
taxes or amounts in lieu of any such tax ("Taxes"). The Customer shall be
responsible for collecting all taxes from its End Users, and remitting all
Taxes directly to the appropriate taxing jurisdictions. Further, the
Customer shall provide the Company with all necessary Customer Exemption
Certificates of Exemption from Tax, examples of which are attached to and
made a part of this Agreement as Exhibits 4-1, 4-2 and 4-3. Unless and until
properly executed copies of all applicable Customer Exemption Certificates
of Exemption from Tax are provided to the Company, the Company will bill the
Customer for, and Customer shall pay, all Taxes as if the Customer were the
End User of Services and/or any other items for which charges are imposed
under this Agreement.
21. Disconnection, Termination or Sale of Service and Sale or Disposal of End
Users.
21.1 By the Company.
21.1.1 If the Customer violates any material provision of this
Agreement, which violation remains uncured after 30 days
written notice by the Company, then the Company may either
temporarily discontinue or permanently terminate the
Customer's Service in whole or in part. No Credit Allowance
(as described in Section 7.1 above) shall be made, and the
Company shall not be liable to Customer and/or any End User
for any damages whatsoever which may result from any such
Service interruption. Except as provided in Section 21.1.3,
below, after giving such notice, the Company will not
discontinue Service for at least thirty (30) days. If
Customer makes payment of the sum due within the thirty (30)
day period, then the Company shall neither temporarily
discontinue nor permanently terminate Customer's Service,
and Company's right to discontinue and/or terminate is
thereby invalidated.
21.1.2 If the Customer fails to pay any sum due the Company, then
upon written notice to the Customer, the Company may either
temporarily discontinue or permanently terminate the
Customer's Service in whole or in part. No credit allowance
(as described in Section 7.1 above) shall be made, and the
Company shall not be liable to Customer and/or any End User
for any damages whatsoever which may result from any such
Service interruption. Except as provided in Section 21.1.3,
below, after giving such notice, the Company will not
discontinue Service for at least thirty (30) days.
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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21.1.3 If the Customer uses Service and/or any Mobile Data Unit in
violation of this Agreement, then the Company will take all
action necessary to protect the Cellular System and/or the
Service, and notify the Customer of such violation. Upon
receipt of such notice, the Customer shall (i) immediately
discontinue or correct such use and (ii) within five (5)
days after receipt of the Company's notice, provide the
Company with written confirmation that such use has ceased.
If the Customer fails to discontinue or correct such use
within the time stated, then the Company may disconnect
Service (without credit allowance as described in Section
7.1, above) until the Customer complies with this Section
21.1.3.
21.1.4 Notwithstanding Sections 21.1.1, 21.1.2 and 21.1.3, the
Company may refuse, discontinue or terminate Service with
thirty (30) days written notice to Customer in the event
that either Service or any Mobile Data Unit is used by the
Customer and/or End User in any way that can reasonably be
expected to have a material adverse effect on Service to
other customers. If such use is discontinued by Customer or
End-User within the thirty (30) day period, Company's right
to discontinue or terminate Service is invalidated.
21.1.5 This Agreement may be terminated by the Company pursuant to
Section 4.1.
21.2 By the Customer.
This Agreement may be terminated by the Customer pursuant to Section
4.1. In addition, Customer shall have the right to terminate this
Agreement upon thirty (30) days written notice should the Service,
through no fault of Customer, be unavailable or materially delayed or
otherwise interrupted for an aggregate period of 24 hours or more
during any 30-day period. Subject to Exhibit 3, the Customer is
responsible for payment of all charges incurred or accrued during the
Initial Contract Period and any extension thereof through the date of
any such termination other than for the time that the Service was
unavailable or materially delayed.
22. Assignment.
Upon fifteen (15) days' written notice to the Customer, the Company may
assign all of its rights, duties and obligations under this Agreement. This
Agreement may not be assigned or transferred by the Customer, in whole or in
part, without the prior written consent of the Company, not to be
unreasonably withheld, except, however, that Customer shall have the right
to assign its rights, obligations and privileges hereunder to a merger
partner, successor in business, or acquirer of all or substantially all of
Customer's stock, or equivalent equity securities business or assets without
obtaining Company's consent to such assignment.
23. Compliance with Laws.
This Agreement and the parties' actions under this Agreement shall comply
with all applicable federal, state and local laws, rules, regulations, and
court orders, and governmental agency orders, including FCC rules,
regulations, and orders relating to resellers. If a court or governmental
agency with proper jurisdiction determines that any provision of this
Agreement is unenforceable, such provision will be enforced to the maximum
extent permissible so as to effect the intent of the parties and the
remainder of this Agreement shall continue in full force and effect.
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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24. Successors and Assigns.
This Agreement shall be binding upon, and shall inure to the benefit of, the
Parties and their respective employees, successors and assigns.
25. Waiver.
No failure or delay on the part of either Party to exercise any right, power
or remedy under this Agreement shall operate as a waiver of such right,
power or remedy, nor shall any single or partial exercise of any right,
power or remedy by any Party preclude the exercise of any other right, power
or remedy. No express waiver or assent by any Party to any breach or default
in performance of any provision of this Agreement shall constitute a waiver
of or assent to any succeeding breach of or default in performance of the
same or any other provision of this Agreement.
26. Entire Agreement.
This Agreement contains the entire agreement between the Parties with
respect to its subject matter. This Agreement (including all the attached
Exhibits) supersedes all prior discussions and agreements between the
Parties with respect to the subject matter of this Agreement. In the event
of any conflict between the provisions of this Agreement and the provisions
of any contract, service order or other document used by the Company or
submitted by the Customer, the provisions of this Agreement shall control.
This Agreement cannot be modified or amended except by a written instrument
signed by both Parties, except as set forth herein.
27. Multiple Counterparts.
The original and one or more copies of this Agreement may be executed by the
Parties. All such executed copies shall have the same force and effect as
the executed original, and all such counterparts, taken together, shall have
the effect of a fully executed original.
28. Notices.
Any notice or demand given in connection with this Agreement shall be
sufficiently delivered if sent by personal delivery or certified mail return
receipt requested or overnight service addressed to Company as:
Ameritech Mobile Communications, LLC
Attention: Vice President - Marketing
2000 West Ameritech Center Drive
Hoffman Estates, IL 60195-5000
with a copy to:
Ameritech Mobile Communications, LLC
Attention: Legal Department, #3H78
2000 West Ameritech Center Drive
Hoffman Estates, IL 60195-5000
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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and to Customer as:
At Road, Inc.
47200 Bayside Parkway
Fremont, CA 94538
Attention: Director of Carrier Sales
tleiby@road-inc.com
with a copy to:
At Road, Inc.
47200 Bayside Parkway
Fremont, CA 94538
Attention: Legal Department
jabalos@road-inc.com
(or to such other address as either Party may designate in writing from time
to time). Notice shall be deemed given upon receipt.
29. Headings.
The headings and captions used throughout this Agreement are for reference
and convenience only and shall neither be deemed a part of this Agreement
nor affect the meaning or construction of any provision of this Agreement.
30. Governing Law and Choice of Forum.
This Agreement is made and delivered in the State of Illinois, and shall be
governed by, construed and enforced in accordance with Illinois law. Any
lawsuit related to this Agreement or the activities contemplated by this
Agreement may only be brought in, and the parties consent to the
jurisdiction of, the United States District Court for the Northern District
of Illinois (if Federal jurisdiction applies) or in the Circuit Court of
Cook County, Illinois.
31. Survival.
The Parties' obligations under this Agreement which by their nature are
intended to continue beyond the termination or expiration of this Agreement
shall survive the termination or expiration of this Agreement.
EACH PARTY HAS FULL POWER AND AUTHORITY TO ENTER INTO, PERFORM, AND EXECUTE
THIS AGREEMENT, AND EACH PERSON SIGNING THIS AGREEMENT ON BEHALF OF EITHER
PARTY HAS BEEN PROPERLY AUTHORIZED AND EMPOWERED TO ENTER INTO AND EXECUTE
THIS AGREEMENT.
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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<PAGE>
IN WITNESS WHEREOF, the Company and the Customer have caused this Agreement to
be executed by duly authorized corporate officers on the date written below.
CUSTOMER: COMPANY:
AT ROAD, INC. AMERITECH MOBILE COMMUNICATIONS, LLC
By: /s/ KRISH PANU By: /s/ SHELLEY GOODMAN
------------------------------ ----------------------------------
Name: /s/ Krish Panu Name: Shelley Goodman
---------------------------- --------------------------------
Title: President Title: General Manager Business Sales
--------------------------- -------------------------------
Address: 47200 Bayside Parkway Address: 2000 W. Ameritech Center Drive
Fremont, CA 94538 Hoffman Estates, IL 60195
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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<PAGE>
EXHIBIT 1: INTEROPERABILITY CARRIERS
Interoperability Carriers:
AT&T
VERIZON
ALLTEL
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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EXHIBIT 2: CDPD SERVICE AREA
CDPD Service Area:
Cincinnati, Ohio
Dayton, Ohio
Columbus, Ohio
Detroit, Michigan
See specific Company Cellular Digital Packet Data radio system coverage maps.
Range and coverage on maps are estimated.
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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<PAGE>
EXHIBIT 3: PRICING PLAN
RATE: Customer will be billed monthly for data sent and received in the billing
period. The monthly minimum usage charge will be billed in advance. Usage will
be billed in arrears per Section III below. All Customer's home (non-visiting)
Usage with IP Addresses on Cellular System and Cellular Digital Packet Data
Network which are majority owned, or operated, by direct affiliates of Company's
general partner will be billed in accordance with Section III below.
II. TERMS AND CONDITIONS OF RATES AND CHARGES
A. Payment of Charges:
1) The Customer is responsible for payment of all Service charges
including, but not limited to, Usage charges for all transmissions
sent from or received by the Customer's or End User's Mobile End
System and all other charges billed to the Customer's IP Address(es).
2) A late payment charge ("Late Fee") equal to the lesser of: (a) 1.5%
per month or (b) the highest amount allowed by law will be imposed on
any unpaid balance remaining when any bill is not paid in full within
thirty (30) days after transmittal thereof, unless the Customer
provides the Company with the dispute notice described below. The
Late Fee charge will be applied on the thirty-first (31st) day, to
any unpaid balance carried forward, and will be imposed on each and
every subsequent bill, until any outstanding balance is paid in full.
If the Customer disputes any part of any bill, then in order to avoid
incurring a Late Fee on the disputed amount(s), the Customer must
provide the Company with a written notice of the dispute on or before
the bill's original due date. The notice must identify each disputed
item and state the reason why the item is disputed. The Late Fee will
abate from the date the notice is received until the date of the
Company's written response.
3) A charge of $25.00 will apply for each check, draft or similar
negotiable instrument returned to the Company for any reason. This
charge is in addition to any applicable Late Fee.
4) The Customer must pay all charges incurred by the Customer and/or any
End User in connection with roaming service. Rates and charges for
roaming service are determined by the wireless data interoperability
carrier.
B. Calculation of Charges: CDPD usage charges are incurred when data is sent
or received by the MES. Prices are based on the volume of data
transmitted or received, including user data and network overhead, as set
out in this Exhibit.
C. Contract Period: The Initial Contract Period and Renewal Periods for this
Agreement will be as set forth in Section 4 of the Agreement. Neither the
Initial Contract Period nor the subsequent Renewal Period(s), if any,
will be affected by any change in the IP Address(es) assigned to a line
in Service.
D. Rates for Fractional Periods: If the Customer receives Service during any
fractional part of a month, a proportionate part of the monthly access
charge based on the actual number of days in which Service is provided
will apply. For the purpose of determining such fractions, every month is
considered to have 30 days.
E. Adjustments for Taxes, Fees, etc.: Except for taxes generally imposed on
corporations, the Company's rate schedules do not include any taxes,
fees, or other like charges imposed by or for any municipal corporation
or other political subdivision or government agency against the Company,
its property or its operation. All applicable taxes, fees, or like
changes with respect to Service shall be billed directly to the
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
17
<PAGE>
Customer by the Company, unless the Customer shall have provided the
Company a reseller exemption certificate in a form acceptable to the
appropriate taxing authority.
F. Billing:
1) The Company will direct all billing under this Agreement to the
Customer. No bills will be directed to any End User. The Customer
will receive a monthly printed bill in an electronic format to be
mutually agreed upon by the parties. In addition, the Customer may
request detailed usage for each IP Address in printed form. Company
will ship all printed format pre-paid to Customer or preferred via
electronic transmission.
2) Company shall not be liable for any inaccuracies in the visiting
charges to Customer or other inaccuracies over which Company has no
control. Customer expressly acknowledges that some charges incurred
in a billing cycle may not appear on the invoice for such billing
cycle and that such charges will appear on subsequent invoices.
Customer is responsible for payment of any and all charges that are
delayed or appear on subsequent invoices. Customer shall notify
Company of any defects in the invoice within thirty (30) days of
receipt. Nothing herein shall affect Company's right to amend,
modify, change or otherwise update its billing cycle or billing
systems after ninety (90) days prior written notice to Customer.
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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III. PRICE PLAN:
Unlimited--[*]
3 Megabyte/Month per IP and [*] overage charge--[*]
1 Megabyte/Month per IP and [*] overage charge--[*]
500K Month per IP and [*] overage charge--[*]
ROAMING CHARGES
[*]
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use by authorized
Ameritech Mobile Communications, LLC and Customer and employees and persons
employed, retained or consulted by them.
19
[*] Confidential material redacted and filed separately
with the SEC.
<PAGE>
EXHIBIT 4-1
[AMERITECH LOGO]
Reseller's Certificate of Exemption from Tax
Place a check mark [X] in the appropriate box to indicate the tax(es) to be
exempted and complete the bottom portion of this certificate. Respective taxes
will be charged for the box(es) that remain unchecked. In order to validate this
certificate of exemption for Michigan, the Michigan Sales Tax License Number has
been requested. This certificate of exemption will remain invalid for Michigan
unless the license number is provided.
The undersigned certifies that the company named below is purchasing
telecommunication services and/or related tangible personal property from
Detroit SMSA Limited Partnership (the "Seller") for the exclusive purpose of
resale at retail and said services and/or related tangible personal property are
exempt from the tax(es) indicated below.
[ ] FEDERAL EXCISE TAX
The undersigned certifies that the communication services furnished by the
Seller will be used exclusively in the rendering of a communication service
upon which tax is imposed by Section 4251 of the Internal Revenue Code. It
is understood that no tax will be collected by the Seller on charges for
said services, and that it will be the responsibility of the company named
below to collect such tax as may be due from its customers and to remit it
to the Internal Revenue Service.
[ ] MICHIGAN SALES AND USE TAX
The undersigned certifies that the company named below is engaged in the
business of providing telecommunication services and/or selling tangible
personal property related to the provision of telecommunication services in
the State of Michigan. The company named below is a registered taxpayer
pursuant to the Michigan Sales Tax Law and the telecommunication services
and/or related tangible personal property provided by the Seller will be
resold in the normal course of business. It is understood that no tax will
be collected by the Seller on charges for telecommunication services and/or
sales of related tangible personal property. It will be the responsibility
of the company named below to collect such tax as may be due from its
customers and to remit it to the Michigan Department of Treasury. In the
event that the telecommunication services and/or related tangible personal
property are not resold, the company named below is required by the Michigan
Sales Tax Law to report and pay tax directly
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
20
<PAGE>
to the Michigan Department of Taxation. The tax will be measured by the
purchase price of such telecommunication services and/or related tangible
personal property.
-------------------------------------------
Michigan Sales Tax License Number
This is a blanket exemption certificate of exemption and remains in force for
three (3) years from the date of signature (unless an earlier expiration date is
listed) or until revoked in writing by the company named below or by the
Michigan Department of Treasury.
---------------------------- --------------------------------------
Company (Reseller's) Name Name of Authorized Representative
---------------------------- --------------------------------------
Address Signature
---------------------------- --------------------------------------
City, State, Zip Title
----------------------------
Date
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
21
<PAGE>
EXHIBIT 4-2
[AMERITECH LOGO]
Reseller's Certificate of Exemption from Tax
Place a check mark [X] in the appropriate box to indicate the tax(es) to be
exempted and complete the bottom portion of this certificate. Respective taxes
will be charged for the box(es) that remain unchecked. In order to validate this
certificate of exemption for Ohio, the Ohio Vendor's License Number has been
requested. This certificate of exemption will remain invalid for Ohio unless the
license number is provided.
The undersigned certifies that the company named below is purchasing
telecommunication services and/or related tangible personal property from
Cincinnati SMSA Limited Partnership (the "Seller") for the exclusive purpose of
resale and said services are exempt from the tax(es) indicated below.
[ ] FEDERAL EXCISE TAX
The undersigned certifies that the communication services furnished by the
Seller will be used exclusively in the rendering of a communication service
upon which tax is imposed by Section 4251 of the Internal Revenue Code. It
is understood that no tax will be collected by the Seller on charges for
said services, and that it will be the responsibility of the company named
below to collect such tax as may be due from its customers and to remit it
to the Internal Revenue Service.
[ ] OHIO SALES AND USE TAX
The undersigned certifies that the company named below is engaged in the
business of providing telecommunication services and/or selling tangible
personal property related to the provision of telecommunication services in
the State of Ohio. The company named below is a registered taxpayer pursuant
to the Ohio Sales and Use Tax Law and the telecommunication services and/or
related tangible personal property provided by the Seller will be resold in
the normal course of business. It is understood that no tax will be
collected by the Seller on charges for said services and/or sales of related
tangible personal property. It will be the responsibility of the company
named below to collect such tax as may be
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
22
<PAGE>
due from its customers and to remit it to the Ohio Department of Taxation.
In the event that the telecommunication services and/or tangible personal
property are not resold, the company named below is required by the Ohio
Sales and Use Tax Law to report and pay tax directly to the Ohio Department
of Taxation. The tax will be measured by the purchase price of such
telecommunication services and/or related tangible personal property.
-------------------------------
Ohio Vendor's License Number
This is a blanket exemption certificate and remains in force until revoked in
writing by the company named below or by the Ohio Department of Taxation.
---------------------------- --------------------------------------
Company (Reseller's) Name Name of Authorized Representative
---------------------------- --------------------------------------
Address Signature
---------------------------- --------------------------------------
City, State, Zip Title
----------------------------
Date
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
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EXHIBIT 4-3
[AMERITECH LOGO]
CERTIFICATE OF EXEMPTION
FROM FEDERAL EXCISE TAX
I certify that the telecommunication services purchased by
____________________________ will be used exclusively in the rendering of
telecommunication services upon which tax is imposed by Section 4251 of the
Internal Revenue Code. I further certify that ____________________________ is in
the business of providing telecommunication services to end-user customers and
assumes the responsibility for collection of federal excise tax as may be due
and will remit such tax to the Internal Revenue Service. This certificate is
valid until rescinded in writing.
Name and Address of Purchaser/Reseller:
Attention:
-----------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
(Signature)
Title:
---------------------------------
Date:
----------------------------------
Private and Confidential
Except as set forth herein, the information contained herein shall not be
disclosed to unauthorized persons. It is meant solely for use
by authorized Ameritech Mobile Communications, LLC and Customer and
employees and persons employed, retained or consulted by them.
24