Joint CDPD Marketing Agreement - Vectorlink Inc. and Bell Atlantic Mobile
[LOGO OF BELL ATLANTIC MOBILE APPEARS HERE]
CONTRACT NO. ###-##-####
JOINT CDPD MARKETING AGREEMENT
between
VECTORLINK, INC.
and
BELL ATLANTIC MOBILE
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PRIVATE
The information contained herein is proprietary and should not be disclosed to
unauthorized persons. It is meant solely for use by authorized Bell Atlantic
Mobile employees and persons employed, retained or consulted by them.
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
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JOINT MARKETING AGREEMENT
THIS JOINT MARKETING AGREEMENT, Contract No. ###-##-####, is made by
and between Cellco Partnership, a Delaware General Partnership, doing business
as Bell Atlantic Mobile, located at 180 Washington Valley Road, Bedminster, NJ
07921 (hereinafter "Bell Atlantic Mobile"), and VECTORLINK, INC., a California
corporation, with its principal place of business at 45635 Northport Loop East,
Fremont, CA 94538 ("Company").
W I T N E S S E T H
WHEREAS, Bell Atlantic Mobile has the ability to offer its current and
prospective customers its wireless data Cellular Digital Packet Data ("CDPD")
services; and
WHEREAS, Company develops and distributes certain software and
hardware to provide wireless products, services and application solutions to
satisfy particular customer requirements; and
WHEREAS, the parties have determined that it will be beneficial to
each of them to enter into a definitive agreement to market to their respective
customers and prospective customers technological solutions which meet those
customers' needs and which, to the extent practicable, combine each other's
products and services to provide total wireless data solutions utilizing CDPD
applications; and
WHEREAS, solutions for the customers and prospective customers of Bell
Atlantic Mobile or Company may require the use of software designed for specific
applications ("Application Software"), which may be provided by Company or by
one or more third parties ("Third-Party Providers"), such as value-added
resellers ("VARs"), independent software vendors ("ISVs") or systems
integrators;
NOW, THEREFORE, in consideration of the mutual promises and covenants
of the parties as hereinafter set forth, Bell Atlantic Mobile and Company agree
as follows:
ARTICLE 1 - DEFINITIONS
"Affiliate" of a person or entity (the "primary party") means another
person or entity which falls within any one or more of the following categories:
(i) a person or entity that is controlled by, controls or is under the same
control as the primary party, or (ii) a subsidiary (whether or not consolidated)
of the primary party, or (iii) an entity of which the primary party is a
subsidiary (whether or not consolidated), or (iv) a person or entity which has a
material ownership interest in the primary party or which manages a significant
portion of the primary party's day-to-day operations, or (v) an entity in which
the primary party has a material ownership interest or which has a significant
portion of its day-to-day operations managed by the primary party.
"Bell Atlantic Mobile Market Area" means the area designated as the
Bell Atlantic Mobile Market Area in Exhibit A hereto.
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"Bell Atlantic Mobile Services" includes Existing Bell Atlantic Mobile
Services and Customized Bell Atlantic Mobile Services.
"Bell Atlantic Mobile Technology" means CDPD.
"Cellular Digital Packet Data Service ("CDPD")". Cellular radio
service utilizing packet switching technology to transmit data over radio
frequency channels. The raw data rate of CDPD is 19.2 Kilobits per second. It is
a connectionless multi-protocol network service providing peer network wireless
extension to existing data networks.
"Company Market Area" means the area(s) designated as the Bell
Atlantic Mobile Primary Serving Markets as listed in Exhibit A
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"Company Products" means all products and services offered by Company
to Customers or Prospects from time to time, whether such products or services
are offered to Customers or Prospects directly by Company or indirectly through
third parties or subcontractors, and whether or not Company is the ultimate
supplier or manufacturer of such products or services. The Company Products
include, without limitation, Existing Company Products and Customized Company
Products.
"Customer" means, at any time, any current customer or client of the
party in question.
"Customized Bell Atlantic Mobile Services" means services which can be
provided by Bell Atlantic Mobile using the Bell Atlantic Mobile Technology, but
which are not at the time included in the Existing Bell Atlantic Mobile
Services.
"Customized Company Products" means products which can be provided by
Company using technology available to it, but which are not at the time included
in the Existing Company Products.
"Direct Sales Channel" means for any entity all individuals employed
by such entity for the purpose of sales and all sales facilities operated by
such entity (such as communication store outlets, in the case of Bell Atlantic
Mobile), but shall not include independent companies of such entity.
"Existing Bell Atlantic Mobile Services" means the CDPD services which
Bell Atlantic Mobile markets generally from time to time.
"Existing Company Products" means the products which Company markets
generally from time to time.
"Proposal" means any proposal, or any response to requests for
proposal, bid or information, or similar method of offering or marketing
wireless data solutions which do, or reasonably could, include both Bell
Atlantic Mobile Services and Company Products and (to the extent applicable)
Application Software.
"Prospect" means any Customer or potential Customer to whom a party
hereto has made, or is considering making, a Proposal.
To "Reasonably Recommend" a product or service means to recommend and
promote such product or service to a Prospect in a manner reasonably designed to
influence the Prospect to purchase the product or service; provided, that an
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obligation to Reasonably Recommend a product or service does not include any
obligation: (a) to promote any product or service if there exists a good faith
belief that the Prospect's requirements would not be addressed as well by such
product or service as they would by some competing product or service or (b) to
continue promoting the product or service if the Prospect indicates an
unwillingness to consider using it.
"Solutions" means actual or proposed total wireless data solutions to
meet the needs of Prospects, which solutions utilize CDPD applications.
ARTICLE 2 - JOINT-PROMOTION AND PROPOSALS
2.7 Recommendation of Bell Atlantic Mobile Services and Company
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Products. During the term of this Agreement, Company, through its Direct
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Sales Channel, shall Reasonably Recommend the Bell Atlantic Mobile Services
in the Company Market Area. During the term of this Agreement, Bell
Atlantic Mobile, through its Direct Sales Channel, may, but is not required
to, Reasonably Recommend the Company Products in the Bell Atlantic Mobile
Market Area.
2.2 Company Proposals. From time to time during the term of this
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Agreement, whenever Company is considering making a Proposal involving CDPD
which, in Company's reasonable judgment, may benefit from the inclusion of
Bell Atlantic Mobile Services, Company
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shall so notify Bell Atlantic Mobile. Upon receipt of such notice, Bell
Atlantic Mobile shall promptly provide to Company all sales, marketing and
technical support necessary to enable Company to include in its Proposal,
to the extent reasonably practical, Solutions using Bell Atlantic Mobile
Services.
2.3 Bell Atlantic Mobile Proposals. From time to time during the term
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of this Agreement, whenever Bell Atlantic Mobile is considering making a
Proposal which, in Bell Atlantic Mobile's reasonable judgment, may benefit
from the inclusion of Company Products, Bell Atlantic Mobile may so notify
Company. Upon receipt of such notice, Company shall promptly provide to
Bell Atlantic Mobile all sales, marketing and technical support necessary
to enable Bell Atlantic Mobile to include in its Proposal, to the extent
reasonably practical, Solutions using Company Products. Bell Atlantic
Mobile may request Company's support, but Bell Atlantic Mobile shall be
under no obligation to recommend Solutions containing Company Products to
Bell Atlantic Mobile's Prospects.
2.4 Responsibilities Upon Acceptance of Proposals Which Include Bell
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Atlantic Mobile Services and Company Products.
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(a) Upon a Prospect's acceptance of a Company Proposal which includes
Bell Atlantic Mobile Services or a Bell Atlantic Mobile Proposal which
includes Company Products, Company and Bell Atlantic Mobile shall cooperate
with each other in implementing the Proposal, which cooperation shall be
deemed a joint marketing effort hereunder.
(b) Should the Proposal be one which contemplates that Company or a
Third-Party Provider is the prime contractor to the Customer, Bell Atlantic
Mobile may choose to act as a subcontractor pursuant to a subcontracting
agreement to be entered into between Company or such Third-Party Provider
and Bell Atlantic Mobile. Should the Proposal be one which contemplates
that Bell Atlantic Mobile or a Third-Party Provider is the prime contractor
to the Customer, Company shall act as a subcontractor pursuant to a
subcontracting agreement to be entered into between Bell Atlantic Mobile or
such Third-Party Provider and Company. Upon entry into a subcontracting
agreement or similar form of agreement relating to an accepted Proposal,
such agreement shall thereafter govern the rights and obligations of the
parties thereto with respect to the subject matter thereof, except as the
parties may otherwise agree in writing.
(c) Should the Proposal be one which contemplates that each of Company
and Bell Atlantic Mobile (and, if appropriate, one or more Third-Party
Providers) shall separately contract with the Customer, then each of
Company and Bell Atlantic Mobile shall negotiate in good faith to enter
into its own contract with such Customer (each, a "Customer Contract").
When both Company and Bell Atlantic Mobile have entered into such Customer
Contracts, neither of them shall have any obligations to one another with
respect to the subject matter thereof other than the obligation of
reasonable coordination with each other to implement the agreed upon
Solution; provided, that if either of them, by acts or omissions
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constituting bad faith or gross negligence under the Customer Contract by
which such party is bound, directly or indirectly causes the other party to
suffer any losses or damages, the party causing such loss or damage shall
be liable to the party which has been harmed to the extent that the loss or
damage was reasonably foreseeable.
2.5 Training Regarding Bell Atlantic Mobile Services and Technology.
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During the term hereof, in order to enhance Company's ability to Reasonably
Recommend Bell Atlantic Mobile Services and its ability to create Proposals
which could include Bell Atlantic Mobile Services, and thereby to further
advance both parties' purposes hereunder, Bell Atlantic Mobile shall make
available to Company information designed to enhance Company's
understanding of the functions and advantages of the Bell Atlantic Mobile
Services and the Bell Atlantic Mobile Technology.
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2.6 Training Regarding Company Products and Technology. During the
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term hereof, in order to enhance Bell Atlantic Mobile's ability to
Reasonably Recommend Company Products and its ability to create Proposals
which could include Company Products, and thereby to further advance both
parties' purposes hereunder, Company shall make available to Bell Atlantic
Mobile information designed to enhance Bell Atlantic Mobile's understanding
of the functions and advantages of the Company Products.
2.7 Obligation to Reasonably Recommend. During the term hereof,
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Company shall not recommend any provider of CDPD other than Bell Atlantic
Mobile to any Customer or potential Customer in the Bell Atlantic Mobile
Market Area, except in such instances in which: (a) Company has first
Reasonably Recommended Bell Atlantic Mobile Services and the Company
Customer has refused to deal with Bell Atlantic Mobile, or (b) Company
believes in good faith that it is unable to Reasonably Recommend the Bell
Atlantic Mobile Services to such Customer or potential Customer for any of
the reasons set forth in the definition of "Reasonably Recommend" elsewhere
in this Agreement and, to the extent practical, it has notified Bell
Atlantic Mobile of that reason and given Bell Atlantic Mobile an
opportunity to respond.
2.8 Telemarketing Services
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In the event Company conducts telemarketing services on behalf of Bell
Atlantic Mobile, the following shall apply:
(a) Company agrees to conduct its telemarketing services on behalf of
Bell Atlantic Mobile, in accordance with all applicable Federal, State and
local laws and regulations governing advertising, marketing practices and
the transaction of its business by telephone. These include, but, are not
limited to, the Telephone Consumer Protection Act of 1991, the
Telemarketing and Consumer Fraud and Abuse Prevention Act of 1994 and the
Telemarketing Sales Rule of 1995, all Consumer Protection Acts, all
tariffs, and any rules and procedures of any governmental body or Bell
Atlantic Mobile relating to the sale of CRS or the sale, lease,
installation, warranty service or repair of Equipment, as well as the laws
and regulations of the United States Postal Service, Federal Communications
Commission, Federal Trade Commission and the Federal Reserve Board.
Further, to the extent Company records or monitors its calls, it will
give appropriate notification and gain consent of participants in such
calls to such monitoring and recording. Company shall provide Bell Atlantic
Mobile with a plan and an audited report to demonstrate it is complying
with these laws, rules and regulations.
(b) When making outbound telemarketing calls on behalf of Bell
Atlantic Mobile, Company shall only use representatives who have attended
and completed training by Bell Atlantic Mobile in Bell Atlantic Mobile
specific practices and procedures and the Bell Atlantic Mobile price plans
Company is authorized to offer. After completion of the Bell Atlantic
Mobile training, the representative shall be fully capable of handling Bell
Atlantic Mobile calls in a professional, knowledgeable manner, and in
strict conformance with Bell Atlantic Mobile's practices and procedures.
The representatives shall also be knowledgeable about applicable Bell
Atlantic Mobile price plan offers. Training provided by Bell Atlantic
Mobile will be based on the applicable portions of Bell Atlantic Mobile's
Training manual, including but not limited to, Bell Atlantic Mobile's
products, services, price plans and coverage areas. Company employees who
attend the training will be asked to sign a Bell Atlantic Mobile attendance
sheet
(c) No contract between Bell Atlantic Mobile and a Subscriber shall
exist until the Service Form is accepted and approved by Bell Atlantic
Mobile and the service has been activated.
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Company will provide its outbound calling list to Bell Atlantic Mobile
for approval ("Preapproved List"). The list provided by Company will be on
a 3.5 disk in Excel format and should include the customer's name and
address, phone number and social security number (if available). Bell
Atlantic Mobile will review the list and indicate which customers should
not be called either because they are Bell Atlantic Mobile's current
customers or are on Bell Atlantic Mobile's "Do Not Call List"). Bell
Atlantic Mobile will normally return the list to Company within one (1)
week after receipt. Company agrees that it shall also maintain and honor a
"Do Not Call" List.
(d) Company shall not use a Voice Response Unit during its performance
under this Agreement.
(e) In the event Company is providing similar services to other
wireless providers in markets not covered by this Agreement, Company agrees
that its operators who handle Bell Atlantic Mobile calls will not share the
same working areas as Company operators who handle other wireless
providers' calls. Further, Company shall ensure that other wireless
providers: (1) will not be allowed access to Bell Atlantic Mobile
documentation, (2) will not be allowed access to the area(s) where
representatives are handing Bell Atlantic Mobile calls, and (3) will not
have the ability to listen in to operator's who are handling Bell Atlantic
Mobile's calls. Further, Company employees shall be instructed to keep Bell
Atlantic Mobile information secure when not in use. Company shall also
ensure that its employees are aware of the restrictions contained in the
Agreement executed by the parties concerning Company's employees obligation
not disclose Bell Atlantic Mobile information. Prior to implementation,
Company will provide to Bell Atlantic Mobile for Bell Atlantic Mobile's
prior approval, Company's plan to ensure that Company will comply with this
Section 2.8.
(f) Company will bear all costs for providing telemarketing services,
including, but not limited to:
(1) The time spent by its representatives during Bell Atlantic
Mobile training; (2) all costs related to fulfillment of the
Subscriber's order, and (3) all costs relating to the furnishing and
maintaining of adequate and appropriate equipment, personnel ancillary
services, office facilities, support facilities and all necessary
hardware and software required to perform telemarketing sales.
ARTICLE 3 - TECHNOLOGY DEVELOPMENT AND OWNERSHIP
3.1 Technology Development. Bell Atlantic Mobile and Company may
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cooperate with each other from time to time in developing new technology,
new applications of existing technology and/or new products or product
lines in order to further their mutual interests hereunder. Except as
otherwise provided herein, neither party shall be under any obligation to
the other to engage in such development.
3.2 New Technology Ownership. In each event when the parties desire
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to work together to develop new technology or new products, they shall
negotiate to reach agreement on the ownership rights of each of them in the
technology or products which are to be developed.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF COMPANY AND BELL
ATLANTIC MOBILE
4.1 Company hereby represents and warrants to Bell Atlantic Mobile as
follows:
4.1.1 Sufficient Rights; No Infringement. Company owns the
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entire right, title and interest in and to the Company
Products, or has sufficient rights therein, to utilize the
Company Products for the purposes set forth herein.
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The Company Products to be used in accordance with any
arrangements contemplated by this Agreement do not
infringe or violate any United States patents or any
copyright, trademark, trade secret or other intellectual
property rights and there are no claims of any such
infringement or violation.
4.1.2 Authority. Company has the requisite authority to enter
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into this Agreement and to perform all of its obligations
hereunder.
4.2 Bell Atlantic Mobile hereby represent and warrants to company as
follows:
4.2.1 Sufficient Rights: No Infringement. Bell Atlantic Mobile
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owns the entire right, title and interest in and to the
Bell Atlantic Mobile Services and Bell Atlantic Mobile
Technology, or has sufficient rights therein, to utilize
the Bell Atlantic Mobile Services and the Bell Atlantic
Mobile Technology for the purposes set forth herein.
Neither the Bell Atlantic Mobile Services nor the Bell
Atlantic Mobile Technology is to be used in accordance
with any arrangements, contemplated by this Agreement
infringe or violate any United States patents or any
copyright, trademark, trade secret or any other
intellectual property rights and there are no claims of
any such infringement or violation.
4.2.2 Authority. Bell Atlantic Mobile has the requisite
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authority to inter into this Agreement and to perform all
of its obligations hereunder.
ARTICLE 5 - RELATIONSHIP OF THE PARTIES
Each of the parties hereto will act as, and will be, independent
contractors in all aspects of their performance of this Agreement.
Neither party will act or have authority to act as an agent for the
other party for any purpose whatsoever. Nothing in this Agreement will
be deemed to constitute or create a joint venture, partnership,
franchise, pooling arrangement, or other formal business entity or
fiduciary relationship between Company and Bell Atlantic Mobile.
ARTICLE 6 - NON-DISCLOSURE
6.1 Non-Disclosure of Agreements. Neither party will make any
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disclosure regarding the terms of this Agreement or the business
arrangements described herein without obtaining the prior written consent
of the other party; provided, however, that (i) the parties may communicate
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with Customers and Prospects to the extent reasonably required to perform
hereunder (but will obtain prior written approval of the other party hereto
before identifying such party in advertisements, mass mailings or general
publicity); (ii) each party will be permitted to make such disclosures as
are required by legal or regulatory requirements applicable to, and beyond
the reasonable control of, the party; and (iii) either party may disclose
the terms of this Agreement and the business arrangements described herein
to employees of their affiliates who have a need to know.
6.2 Confidential Information. The parties recognize that in the
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course of negotiating and performing this Agreement both parties have had
and will continue to have access to certain confidential or proprietary
information belonging to the other and each desires that any such
confidential and proprietary information remain confidential. Each party
agrees that, both during the term hereof and for a period of two (2) years
after the termination of this Agreement such party will use the same means
it uses to protect its own confidential proprietary information, but in no
event less than reasonable means, to prevent the disclosure and to protect
the confidentiality of both (i) written information received from the other
party which is marked or identified as confidential, and (ii) oral or
visual information identified as confidential at the time of disclosure
which is summarized in writing and provided to the other party in such
written form promptly after
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such oral or visual disclosure ("Confidential Information"). The foregoing
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will not prevent either party from disclosing Confidential Information
which belongs to such party that is (i) already known by the recipient
party without an obligation of confidentiality, (ii) publicly known or
becomes publicly known through no unauthorized act of the recipient party,
(iii) rightfully received from a third party, (iv) independently developed
by the recipient party without use of the other party's Confidential
Information, (v) disclosed without similar restrictions to a third party by
the party owning the Confidential Information, (vi) approved by the other
party for disclosure, or (vii) required to be disclosed pursuant to a
requirement of a governmental agency or law so long as the disclosing party
provides the other party with notice of such requirement prior to any such
disclosure. Nothing herein shall restrict Company from disclosing to a
third party that it has an exclusive relationship with Bell Atlantic
Mobile.
6.3 Remedies. Each party acknowledges that the other would suffer
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irreparable damage in the event of any breach of the provisions of this
Article 6. Accordingly, in such event, a party will be entitled to
temporary, preliminary and final injunctive relief, as well as any other
applicable remedies at law or in equity against the party who has breached
or threatened to breach this Article 6.
6.4 No Rights Granted. Nothing contained in this Agreement shall be
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construed as granting or conferring any rights by license or otherwise in
any Confidential Information disclosed to the receiving party. All
Confidential Information shall remain the property of the disclosing party
and shall be returned by the receiving party to the disclosing party upon
request. All notes, abstracts, memoranda, or other documents prepared by
receiving party which contain Confidential Information or any discussion
thereof, shall be destroyed or returned to the disclosing party upon
written request. If the parties hereto decide to enter into any licensing
arrangement regarding any Confidential Information or present or future
patent claims disclosed hereunder, it shall only be done on the basis of a
separate written agreement between them. No disclosure of any Confidential
Information hereunder shall be construed a public disclosure of such
Confidential Information by either party for any purpose whatsoever.
6.5 Limitation on Obligations. The furnishing of Confidential
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Information hereunder shall not obligate either party to enter into any
further agreement of negotiation with the other or to refrain from entering
into an agreement or negotiation with any other party.
ARTICLE 7 - TERM AND TERMINATION
7.1 Term and Termination.
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(a) Subject to the termination provisions below, this Agreement shall
take effect upon execution of this Agreement by the parties and shall
continue for a period of one (1) year from the date hereof. Thereafter,
this Agreement may be extended for four (4) additional one-year terms
unless terminated by either party within sixty (60) days of the expiration
of the then current Term. The initial Term, including all renewal Terms,
shall not exceed five years.
(b) This Agreement may be terminated by either party with or without
cause by giving thirty (30) days' prior written notice to the other (to the
attention of the person signing this Agreement on behalf of such other
party). Upon material breach or default under this Agreement by either
party, if the other party gives notice of such breach or default and the
same is not reasonably susceptible of cure within thirty (30) days, then
without limitation of any other remedy available hereunder, the non-
defaulting party may terminate this Agreement immediately by delivery of a
notice of termination simultaneously with the notice of default or at any
time thereafter. This Agreement may be immediately terminated without prior
written notice at the option of Bell Atlantic Mobile in the event that
Company violates any of the conditions of Article 6 relating to the
Confidential Information of Bell Atlantic Mobile or Company shall have
ceased business, been adjudged bankrupt or insolvent, made an assignment
for the benefit of creditors, and/or filed for a petition in bankruptcy or
reorganization.
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(c) Following expiration or termination of this Agreement, except for
the obligations of the parties set forth in Section 7.3 below, the parties
will have no further obligation or responsibility to each other.
7.2 No Waiver. The right of either party to terminate this Agreement
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hereunder shall not be affected in any way by its waiver of or failure to
take action with respect to any previous default.
7.3 Survival of Obligations upon Expiration of Term or Termination of
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Agreement. (a) All obligations of the parties arising hereunder and
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relating to any Proposal or joint Customer relationship existing on the
date of expiration or termination (other than obligations to recommend or
jointly market each others products and services) shall continue in full
force and effect subsequent to and notwithstanding the termination or
expiration of this Agreement until all such obligations are satisfied in
full. The termination or expiration of this Agreement shall in no way
affect the rights and obligations of Bell Atlantic Mobile and Company under
any then existing subcontracting agreement or similar form of agreement
between the parties, except to the extent set forth therein.
(b) All representations, warranties and covenants of the parties set
forth in Section 4 and Section 8 shall survive the termination of this
Agreement for a period of two (2) years (the "Two-Year Period"); provided,
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however. (i) if a claim or allegation of infringement of any U.S. patent or
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any trademark, copyright, trade secret or other intellectual property right
is made during the Two-Year Period, then, with respect to such claim or
allegation, the indemnification provisions of Sections 8.1 and 8.2 shall
survive beyond the Two-Year Period and (ii) if a claim or demand covered by
Section 8.3 is made within the Two-Year Period, then, with respect to such
claim or demand, the indemnification provisions of Section 8.3 shall
survive beyond the Two-Year Period.
ARTICLE 8 - INDEMNIFICATION
8.1 (a) Company shall defend, indemnify, and hold harmless Bell
Atlantic Mobile, Bell Atlantic Mobile's parent and affiliated companies,
and Bell Atlantic Mobile's customers (each, an "Indemnified Party") for any
loss, damage, expense or liability that may result by reason of any
infringement or claim or allegation of infringement of any U.S. patent or
any trademark, copyright, trade secret or other intellectual property
rights by any Company Products furnished by Company hereunder or as
contemplated hereby and to pay costs, expenses, attorney's fees and damages
resulting from any claim, suit, settlement or judgment provided that
Company is notified promptly in writing of the claim or suit and at
Company's request and at its expense is given control of said suit and at
Company's expense, all reasonable requested assistance for defense of same.
If a settlement or judgment involves a license, then Company shall obtain
for Indemnified Party and pay the cost of the license, so that Company
Products furnished hereunder or as contemplated hereby will be licensed.
(b) If the use, manufacture or sale of any Company Product furnished
hereunder is claimed to infringe any U.S. patent or any trademark,
copyright, trade secret or other intellectual property rights, at
Indemnified Party's option and at no expense to Indemnified Party, Company
shall obtain for the Indemnified Party the right to use or sell said
product(s) or technology or shall substitute an equivalent product
reasonably acceptable to Indemnified Party and extend this indemnity
thereto or shall accept the return of the product(s) and reimburse
Indemnified Party the purchase price therefor. This indemnity extends to
any claim or suit based upon any infringement or alleged infringement of
any patent, trademark, copyright, trade secret or other intellectual
property rights by the reasonably foreseeable alteration by Indemnified
Party of any Company Products furnished by Company and by the foreseeable
combination of any Company Products furnished by Company and other
elements.
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(c) Bell Atlantic Mobile shall, at Company's expense, respond to, and
assist Indemnified Party to respond to, informal and formal allegations,
notifications and claims of infringement in connection with the Company
Products furnished hereunder or as contemplated hereby and will assist
Indemnified Party to evaluate the merits of any such allegations,
notifications or claims.
(d) Company further agrees to coordinate, form, and cooperate in a
joint defense with other vendors that supply products to Indemnified Party
that are alleged to commonly or in combination with the Company Products
furnished hereunder or as contemplated hereby, infringe. The joint defense
shall, at its expense, retain independent outside counsel acceptable to
Indemnified Party to coordinate defense activities. Indemnified Party
retains the right to implead Company in the event of a suit.
8.2 (a) Bell Atlantic Mobile shall defend, indemnify, and hold
Company harmless, and Company's customers ("Indemnified Party") for any
loss, damage, expense or liability that may result by reason of any
infringement or claim or allegation of infringement of any U.S. patent or
any trademark, copyright, trade secret or other intellectual property
rights by Bell Atlantic Mobile's CDPD service furnished by Bell Atlantic
Mobile hereunder or as contemplated hereby and to pay costs, expenses,
attorney's fees and damages resulting from any claim, suit, settlement or
judgment provided that Bell Atlantic Mobile is notified promptly in writing
of the claim or suit and at Bell Atlantic Mobile's request and at its
expense is given control of said suit and at Bell Atlantic Mobile's
expense, all reasonable requested assistance for defense of same. If a
settlement or judgment involves a license, then Bell Atlantic Mobile shall
obtain for Indemnified Party and pay the cost of the license, so that the
CDPD service furnished hereunder or as contemplated hereby will be
licensed.
(b) If the use, manufacture or sale of Bell Atlantic Mobile's CDPD
Service furnished hereunder is claimed to infringe any U. S. patent or any
trademark, copyright, trade secret or other intellectual property rights,
at Indemnified Party's option and at no expense to Indemnified Party, Bell
Atlantic Mobile shall obtain for the Indemnified Party the right to use or
sell said product(s) or technology or shall substitute an equivalent
service.
(c) Company shall at Bell Atlantic Mobile's expense, respond to, and
assist Indemnified Party to respond to, informal and formal allegations,
notifications and claims of infringement in connection with the service
furnished hereunder or as contemplated hereby and will assist Indemnified
Party to evaluate the merits of any such allegations, notifications or
claims.
8.3 Payment of Taxes and Indemnification. (a) Neither Party nor their
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officers and directors and its associated personnel and employees (all
hereinafter designated "employees") shall be deemed to be employees of the
other Party, it being understood that each Party is an independent
contractor for all purposes and at all times; and each Party shall be
solely responsible for the withholding or payment of all Federal, State and
local Personal Income Taxes, Social Security, Unemployment and Sickness
Disability Insurance and other payroll taxes with respect to its employees,
including contributions from them when and as required by law.
(b) Company shall defend, indemnify, and save harmless Bell Atlantic
Mobile and its successors and assigns and its employees and Companys and
their heirs, legal representatives and assigns from any and all claims or
demands whatsoever, including the costs, expenses and reasonable attorney's
fees incurred on account thereof, that may be made by any person,
specifically including, but not limited to, employees of the Company,
including, but not limited to, claims for bodily injury (including death to
persons) or damage to property (including theft) occasioned by or alleged
to have been occasioned by the negligent acts or omissions of the Company,
its employees or persons furnished by the Company whether negligent or
otherwise.
(c) Company shall defend Bell Atlantic Mobile at Bell Atlantic
Mobile's request, against any such liability, claim or demand. The
foregoing indemnification shall apply whether Company or Bell Atlantic
Mobile defends such suit or claims and whether the death, injury or
property
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damage is caused by the sole acts or omissions of Company or by the
concurrent acts or omissions of Bell Atlantic Mobile or Company hereunder.
Bell Atlantic Mobile agrees to notify Company promptly of any written claim
or demands against Bell Atlantic Mobile for which Company is responsible
hereunder.
ARTICLE 9 - GENERAL
9.1 Assignment. This Agreement is personal to each party hereto and
----------
neither may assign or otherwise transfer its rights or delegate its duties
hereunder without the prior written consent of the other, which consent
shall not be unreasonably withheld; provided, however, either party may
-------- -------
upon written notice to the other assign any of its rights or obligations
hereunder to (i) an Affiliate of the assigning party or (ii) the purchaser
of or successor in interest to all or substantially all of the assigning
party's assets, unless (with respect to an assignment by Company) in the
reasonable judgment of Bell Atlantic Mobile the assignee is a competitor of
Bell Atlantic Mobile, in which case the assignment by Company shall not be
valid or binding between the parties without Bell Atlantic Mobile's prior
written consent.
9.2 Amendment. This Agreement and the Schedules and Exhibits attached
---------
hereto shall not be deemed or construed to be modified, amended, or waived,
in whole or in part, except by written agreement duly executed by the
parties to this Agreement.
9.3 Severability. In the event any provision hereof shall be deemed
------------
invalid or unenforceable by any court or governmental agency of competent
jurisdiction, such provision shall be deemed severed from this Agreement
and all remaining provisions shall be afforded full force and effect as if
such severed provision had never been a provision hereof.
9.4 Execution. At the time of execution of this Agreement, the
---------
parties shall cause their authorized officers to execute two original
copies of this Agreement. One executed copy together with one initialed
copy of each schedule and attachment hereto shall be maintained by the
parties at their respective offices.
9.5 Compensation. Bell Atlantic Mobile shall pay Company Compensation
------------
("Commission") upon the sale of both Bell Atlantic Mobile Services and
Company Products to any Customer procured through the joint efforts of
Company in accordance with the attached Exhibit B, which may be amended by
Bell Atlantic Mobile from time to time, provided that Company is in full
compliance with the terms and conditions herein. Bell Atlantic Mobile, may
from time to time, add, delete or modify any Bell Atlantic Mobile services
and the Commission paid for same. Each Customer shall be deemed effective
upon activation by Bell Atlantic Mobile.
Any Compensation or other fee paid by Bell Atlantic Mobile under this
Agreement shall not be contested by Company unless Company shall provide
Bell Atlantic Mobile, in writing within five (5) business days of issuance
of said Compensation or fee, notice that Company in good faith believes
payment to be incorrect, a detailed statement of the reason why the Company
believes there is an error, and all documentation including but not limited
to: Service orders, inventory reports, canceled checks, installment sales
contracts, etc., in support of Company's belief. Any objections not raised
by Company in this manner will be deemed waived. If this Agreement is
terminated for any reason, Bell Atlantic Mobile may withhold payment of
Compensation then due until all matters relating to the termination of the
agency, including equipment, and matters under any other agreement between
the parties, are settled. Company agrees that at any time, regardless of
whether this Agreement is in effect or not, any past due monies owed to
Bell Atlantic Mobile by Company under this Agreement or any other agreement
between the parties may be offset against commissions or other monies due
Company. If there are insufficient amounts owed Company by Bell Atlantic
Mobile to effect such reduction, Company shall pay any remaining sums to
Bell Atlantic Mobile immediately upon demand.
10
<PAGE>
9.6 Injunctive Relief. The parties recognize and agree that money
-----------------
damages are an inadequate remedy for breach of the provisions contained in
Article 9.17 and Article 6 above, and further recognize that such breach
would result in irreparable harm to the party against whom such breach is
committed. Therefore, in the event of a breach or threatened breach of any
such provision, the breaching party may be enjoined from engaging in any
activity proscribed by such provision by a court of competent jurisdiction.
Injunctive relief pursuant to this Section shall be in addition to all
remedies available at law or in equity to a party arising from a breach of
such provisions by the other party.
9.7 Excused Performance. The parties shall not be liable for any
-------------------
failure to perform under this Agreement or any default due to fire,
electrical failure, flood or similar act of God, embargo, or governmental
restrictions which prevent the parties from performing in the normal and
usual course of their businesses, provided they undertake diligent action
to cure such failure and mitigate damage.
9.8 Headings. The headings of this Agreement are intended solely for
--------
the convenience of reference and shall be given no effect in the
construction of this Agreement.
9.9 Number, Gender. The masculine, feminine, singular and plural of
--------------
any word or words shall be deemed to include and refer to the gender and
number appropriate in the context.
9.10 Notices. Except as otherwise provided in this Agreement, all
-------
notices or other communications which are required or permitted hereunder
shall be in writing and shall be valid and sufficient if delivered by: a)
registered or certified mail, postage prepaid; b) hand delivery; c)
overnight courier prepaid; or d) via facsimile transmission upon electronic
confirmation of receipt, as follows:
To Bell Atlantic Mobile:
180 Washington Valley Road
Bedminster, NJ 07921
Attn.: Robert J. Hirsh, Director
Wireless Data Distribution
Phone: (908) 306-7520
Facsimile: (908) 306-7541
With a Copy to: Bell Atlantic Mobile
180 Washington Valley Road
Bedminster, NJ 07921
Attn.: Frances Dommeleers
Staff Director, Contracts
Phone: (908) 306-7197
Facsimile: (908) 306-4304
To Company: VECTORLINK, INC.
45635 Northport Loop East
Fremont, CA 94538
Attn.: Mr. Amin Mufti
Vice President, Business Development
Phone: 510 668-1638
Facsimile:
9.11 Counterparts. This Agreement may be signed in two or more
------------
counterparts, each of which shall be considered an original and which
shall, taken together, constitute this Agreement.
11
<PAGE>
9.12 No Third Party Beneficiaries. Nothing in this Agreement is
----------------------------
intended or shall be construed or interpreted to give any person or entity
other than the parties hereto any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
9.13 Governing Law. Except to the extent explicitly provided
-------------
elsewhere in this Agreement, the interpretation and enforcement of this
Agreement and all matters arising out of or relating to it shall be
governed by New York law without regard to its conflict of laws provisions
except for New York General Obligations Law Section 5-1401.
9.14 Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings,
whether written or oral, between the parties with respect to such subject
matter, and there are no representations, understandings or agreements
relating to this Agreement that are not fully expressed in this Agreement.
9.15 Procedure. (a) Each party shall appoint an individual from its
---------
organization to interface with the other party on any issues arising out of
this Agreement, and shall promptly notify the other party of such
appointment.
(b) Bell Atlantic Mobile and Company will jointly conduct an annual
meeting to review performance and set objectives for the new year.
9.16 No Representations. Bell Atlantic Mobile shall not make any
------------------
representations or warranties to third parties on behalf of Company, and if
any such representations or warranties are made they shall have no force or
effect on Company. Company shall not make any representations or warranties
to third parties on behalf of Bell Atlantic Mobile, and if any such
representations or warranties are made they shall have no force or effect
on Bell Atlantic Mobile.
9.17 Publicity and Advertising. Without the prior written consent of
-------------------------
the other party, no party hereto will disclose to any person the terms and
conditions of this Agreement, except as may be required by law and then
only in compliance with ARTICLE 6.2. Each party shall submit to the other
party advertising, sales promotion, press releases and other publicity
matters relating to the other party wherein such party's name or marks is
mentioned or language from which the connection of said names or marks
therewith may be inferred or implied. A party shall not publish or use such
advertising, sales promotion, press releases, or publicity matters without
the other party's prior written approval
9.18 Trademark Guidelines. Each party hereto shall comply with the
--------------------
other party's reasonable written guidelines with respect to the use of such
other party's trademarks and/or service marks and for quality control in
connection with such party's trademarked products and/or service-marked
services.
Company shall not register or otherwise use the Licensed Marks or any
portion of the Licensed Marks as an Internet domain name or other Internet
address.
9.19 DAMAGES. NO SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES MAY BE
-------
AWARDED TO EITHER PARTY IN CONNECTION WITH ANY ACTION, CLAIM, PROCEEDING OR
SUIT ARISING HEREUNDER.
12
<PAGE>
ARTICLE 10 - ACKNOWLEDGEMENTS AND REPRESENTATIONS.
Company acknowledges that it has not received or relied upon, any
guaranty, express or implied, as to the amount of commissions or other
revenue that it may earn as a result of its relationship with Bell Atlantic
Mobile. Company represents and warrants that:
(a) the execution, delivery and/or performance of this Agreement will
not conflict with or result in any breach of any provision of the charter
or by-laws of Company or any agreement, contract or legally binding
commitment or arrangement to which Company is a party, and
(b) Company is not subject to any limitation or restriction
(including, without limitation, noncompetition, and confidentiality
arrangements) which would prohibit, restrict or impede the performance of
any of Company's obligations under this Agreement.
This Agreement does not constitute a joint venture, partnership,
employment, or similar relationship among the parties, and, unless
authorized in writing, neither Bell Atlantic Mobile nor Company shall make
any express or implied agreements, guarantees or representations, or incur
any indebtedness or obligations, in the name of or on behalf of the other.
ARTICLE 11 - INDEPENDENT INVESTIGATION
BELL ATLANTIC MOBILE AND COMPANY ACKNOWLEDGE THEY HAVE READ THIS
AGREEMENT AND UNDERSTAND AND ACCEPT THE TERMS, CONDITIONS, AND COVENANTS
CONTAINED HEREIN AS BEING REASONABLY NECESSARY TO MAINTAIN BELL ATLANTIC
MOBILE'S HIGH STANDARDS FOR SERVICE. COMPANY ACKNOWLEDGES AND UNDERSTANDS THAT
BELL ATLANTIC MOBILE MAY AT ANY TIME ALSO BE ENGAGED DIRECTLY OR INDIRECTLY
THROUGH ITS DIRECT SALES FORCE, COMPANIES, OTHER RETAILERS, OR OUTLETS OF ANY
KIND, IN SOLICITING POTENTIAL SUBSCRIBERS FOR THE SERVICE OR OTHER SERVICES OR
PRODUCTS OR FOR THE SALE, LEASE, INSTALLATION, REPAIR, OR SERVICING OF EQUIPMENT
IN THE MARKET. COMPANY ALSO ACKNOWLEDGES AND UNDERSTANDS THAT BELL ATLANTIC
MOBILE MAY SELL THE SERVICE TO OTHERS WHO MAY RESELL IT. COMPANY HAS
INDEPENDENTLY INVESTIGATED THE SERVICE OR EQUIPMENT SALES BUSINESS AND THE
PROFITABILITY (IF ANY) AND RISKS THEREOF AND IS NOT RELYING ON ANY
REPRESENTATION, GUARANTEE, OR STATEMENT OF BELL ATLANTIC MOBILE OTHER THAN AS
SET FORTH IN THIS AGREEMENT.
IN PARTICULAR, COMPANY ACKNOWLEDGES THAT BELL ATLANTIC MOBILE HAS NOT
REPRESENTED: (A) COMPANY'S PROSPECTS OR CHANCES FOR SUCCESS SELLING SERVICES
UNDER THIS AGREEMENT: (B) THE TOTAL INVESTMENT THAT COMPANY MAY NEED TO MAKE TO
OPERATE UNDER THIS AGREEMENT (BELL ATLANTIC MOBILE DOES NOT KNOW THE AMOUNT OF
THE TOTAL INVESTMENT THAT MAY BE REQUIRED FOR THIS PURPOSE); OR (C) THAT IT WILL
LIMIT ITS EFFORTS TO SELL SERVICE OR ESTABLISH OTHER COMPANIES OR RETAILERS IN
THE AREA.
COMPANY ALSO ACKNOWLEDGES THAT BELL ATLANTIC MOBILE HAS NOT
REPRESENTED TO IT THAT: (A) BELL ATLANTIC MOBILE WILL PROVIDE LOCATIONS OR
ASSIST COMPANY TO FIND LOCATIONS TO PROMOTE THE SALE OF SERVICE UNDER THIS
AGREEMENT; (B) BELL ATLANTIC MOBILE WILL PURCHASE ANY PRODUCTS MADE BY COMPANY
THAT ARE IN ANY WAY ASSOCIATED WITH THE SERVICE SOLD BY COMPANY UNDER THIS
AGREEMENT; (C) COMPANY WILL DERIVE INCOME FROM THE SALE OF BELL ATLANTIC
MOBILE'S SERVICES UNDER THIS AGREEMENT, OR BELL ATLANTIC MOBILE WILL REFUND ANY
PAYMENTS MADE BY COMPANY TO BELL ATLANTIC MOBILE UNDER THIS AGREEMENT; OR (D)
BELL ATLANTIC MOBILE WILL PROVIDE A SALES OR MARKETING PROGRAM THAT WILL ENABLE
COMPANY TO DERIVE INCOME UNDER THIS AGREEMENT.
13
<PAGE>
COMPANY FURTHER ACKNOWLEDGES THAT BELL ATLANTIC MOBILE HAS NOT MADE
ANY REPRESENTATIONS. REGARDING: (A) THE QUANTITY OR QUALITY OF SERVICE TO BE
SOLD BY COMPANY OTHER THAN AS STATED IN THIS AGREEMENT; (B) THE PROVISION BY
BELL ATLANTIC MOBILE TO COMPANY OF TRAINING AND MANAGEMENT ASSISTANCE; (C) THE
AMOUNT OF PROFITS, NET OR GROSS, THAT COMPANY CAN EXPECT FROM ITS OPERATIONS
UNDER THIS AGREEMENT; (D) THE SIZE (OTHER THAN THE GEOGRAPHIC AREA), CHOICE
POTENTIAL, OR DEMOGRAPHIC NATURE OF THE MARKET IN WHICH BELL ATLANTIC MOBILE'S
SERVICE IS AVAILABLE OR THE NUMBER OF OTHER RETAILERS OR COMPANYS THAT ARE OR
MAY IN THE FUTURE OPERATE IN THAT AREA, OR (E) THE TERMINATION, TRANSFER OR
RENEWAL PROVISIONS OF THIS AGREEMENT OTHER THAN AS SET FORTH IN THE AGREEMENT.
COMPANY ACKNOWLEDGES THAT IT UNDERSTANDS THAT IT WILL NOT OBTAIN ANY EXCLUSIVE
RIGHTS UNDER THIS AGREEMENT EITHER WITH RESPECT TO TERRITORY OR OTHERWISE, AND
UNDERSTANDS THAT BELL ATLANTIC MOBILE MAY APPOINT OTHER COMPANYS OR RETAILERS IN
THE MARKET AFFECTED BY THIS AGREEMENT. COMPANY ALSO ACKNOWLEDGES THAT BELL
ATLANTIC MOBILE CANNOT CALCULATE IN ADVANCE THE TOTAL AMOUNT THAT BELL ATLANTIC
MOBILE WILL PAY TO COMPANY UNDER THIS AGREEMENT AS THAT AMOUNT DEPENDS ON THE
QUANTITY OF SERVICE THAT SUBSCRIBERS PURCHASE FROM BELL ATLANTIC MOBILE.
ARTICLE 12 - LIMITED LIABILITY
NEITHER PARTY SHALL BE LIABLE TO OTHER PARTY FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED
TO LOST PROFITS, LOST BUSINESS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER
SUCH DAMAGES ARE CLAIMED FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE AND
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. DISPUTE RESOLUTION AND ARBITRATION.
13.1. Coverage. This Section 13 governs all disputes, claims, or
--------
causes of action between the parties. It applies not only to all
alleged disputes, claims, or causes of action arising out of or
relating to this Agreement, but to all other alleged disputes, claims,
or causes of action between the parties that may currently exist or
that may in the future arise for any reason.
13.2. Written Notice Required. Neither party may pursue any
-----------------------
alleged dispute, claim, or cause of action against the other party,
except to the extent that emergency injunctive relief or a temporary
restraining order may be necessary, without first providing written
notice of such alleged dispute, claim, or cause of action to such
other party.
13.3. Negotiation Required. Within thirty days of any written
--------------------
notice of an alleged dispute, claim, or cause of action, the parties
shall meet in person or by telephone and attempt in good faith to
negotiate a resolution of the alleged dispute, claim, or cause of
action. If the party receiving the notice refuses to meet, this thirty
day period will be deemed to have expired upon the date of such
refusal, if it is sooner than thirty (30) days.
13.4. When Arbitration May Be Initiated. Except as provided in
---------------------------------
Subsections 13.2 and 13.6, no arbitration or action may be commenced
with respect to any alleged dispute, claim, or cause of action until
the period prescribed in Subsection 13.3 has expired. If, upon the
expiration of such period (or such longer period to which the parties
may have agreed in writing in seeking in good faith to negotiate a
resolution of the alleged dispute, claim, or cause of action) no
negotiated resolution has been reached, the party that gave notice may
initiate arbitration.
14
<PAGE>
13.5. Tolling and Confidentiality During Negotiation. From the
----------------------------------------------
date of any written as prescribed notice in Subsection 13.2 until
expiration of the negotiation period as prescribed in Subsection 13.4,
any statutes of limitations applicable to the alleged dispute, claim,
or cause of action described in such notice shall be tolled. No
admission, statement, or document by either party made as part of an
attempt in good faith to negotiate pursuant to Subsection 13.3 may be
used in any fashion in any arbitration or action. Any such admission,
statement, or document by either party shall be deemed confidential
and made pursuant to any applicable settlement privilege. The making
of any such admission, statement, or document shall not, however,
preclude the admission of any evidence that would otherwise be
admissible in an arbitration or action.
13.6. Arbitration. Arbitration shall be the exclusive means of
-----------
resolving any alleged dispute, claim, or cause of action between the
parties that cannot be resolved by negotiation as prescribed in
Subsection 13.3. Neither party may commence any action in any court
except to enforce this obligation to arbitrate, enforce any
arbitration award, or in aid of arbitration to the extent that
emergency injunctive relief or a temporary restraining order may be
necessary to prevent irreparable injury or preserve the status quo
pending decision of an issue by an arbitrator or arbitrators.
13.7. Arbitration Rules. Any arbitration and counterclaim in
-----------------
arbitration between the parties shall be initiated under and governed
by the Wireless Industry Arbitration Rules (the "WIA Rules") of the
American Arbitration Association (the "AAA"), as modified by this
Agreement and any other written modification to which both parties
agree.
13.7.1. Any arbitration shall be held in New York City.
13.7.2. If either party commences arbitration in the
manner described above, the dispute will be subject to expedited,
binding arbitration before three (3) independent arbitrators
familiar with the wireless telecommunications industry. Such
arbitration shall be held in New York City, New York pursuant to
the American Arbitration Association ("AAA") Rules in effect at
the time of the dispute. Each party shall select one (1)
arbitrator within twenty (20) days of initiation of arbitration.
The two (2) arbitrators selected shall in turn select a third
arbitrator. If the arbitrators selected by the parties cannot
agree on a third arbitrator, the third arbitrator shall be
selected from the AAA's Commercial Panel, Telecommunications
Panel or Large/Complex Case Panel as provided by the WIA Rules.
13.7.3. No fast track arbitration as defined in the WIA
Rules shall be available or applied to either party.
13.7.4. No arbitration pursuant to this Section 13 may
proceed on a class basis, or be consolidated with any other
arbitration, without the written consent of both parties.
13.7.5. Any arbitration award may be reviewed pursuant to
Rule L-6 of the WIA Rules.
13.7.6. Judgment may be entered on any final arbitration
award in any court of competent jurisdiction.
13.7.7. No arbitration award may include any award of
attorney's fees (except as may be required by any statute
preempting the Federal Arbitration Act to such extent), punitive
damages, exemplary damages, or treble or other multiple damages.
No arbitration award may reform or amend this Agreement.
15
<PAGE>
13.7.8. Any arbitration award must include a statement by
the arbitrator or arbitrators of the reasons for the award.
13.8. Severance. If any action or judicial proceeding is
---------
commenced involving the parties, and any alleged dispute, claim, or
cause of action arises between the parties in such action or
proceeding, such alleged dispute, claim, or cause of action shall be
severed for resolution pursuant to the provisions of this Agreement.
If any third party not subject to the provisions of this Agreement is
a necessary party to any alleged dispute, claim, or cause of action
between the parties, and such third party refuses to consent to
arbitration pursuant to this Agreement, all issues that can be
resolved without such third party shall remain subject to this
Agreement and be severed and resolved before any other issues.
13.9. The Federal Arbitration Act Applies. This Agreement
-----------------------------------
involves interstate commerce and is subject to the Federal Arbitration
Act, 9 U.S.C. (S)(S) 1-16. The Federal Arbitration Act preempts any
inconsistent state or local law, rule, or regulation concerning
arbitration.
13.10. Confidentiality. In addition to the provisions of
---------------
Subsection 13.5, neither party shall disclose to any third party any
admission, statement, or document of the other produced or used in
negotiation or arbitration, or disclose to any third party the
proceedings or outcome of any negotiation or arbitration. This
Subsection 13.10 shall not preclude disclosure to an arbitrator or
arbitrators or the AAA or, to the extent such persons agree to be
bound by this Subsection 13.10, to the parties' parents, subsidiaries,
affiliates, officers, directors, and professional advisors. This
Subsection 13.10 also shall not preclude any disclosure required by
law or disclosure to any third party of the fact and amount of any
final arbitration award.
13.11. Waiver of Trial by Jury. In the event that the Resolution
-----------------------
of Disputes/Arbitration Clause is deemed to be not enforceable, with
respect to any judicial action which may arise under or with respect
to this Agreement, or any relationship or dealings between the parties
that arise out of or by virtue of this Agreement, each party agrees to
waive trial by jury. Company consents to the bringing of any such
action under this Agreement to New York.
ARTICLE 14 - CLEAR DISCLOSURE
Company will only be permitted to activate Customers on Bell Atlantic
Mobile service under the following terms and conditions:
Company shall ensure that each Customer activated by Company has read
and understands the terms and conditions of the Data Service Order under which
Bell Atlantic Mobile will provide service to the Customer.
Company shall indemnify, defend, and hold Bell Atlantic Mobile
harmless from any and all claims, demands and causes of action whatsoever
asserted against Bell Atlantic Mobile due to a claim that the Customer was not
informed that service activated under the Bell Atlantic Mobile Data Service
Order was subject to its terms and conditions.
16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement in counterparts on the day and year written below.
CELLCO PARTNERSHIP
by Bell Atlantic Mobile, Inc.
its managing general partner VECTORLINK, INC.
By: /s/ Gary Schulman By: /s/ Amin Mufti
--------------------------------- ------------------------------
(REGIONAL PRESIDENT)
Title: Executive Vice President & COO Title: VP Business Development
--------------------------------- ----------------------------
Name: Jack D. Plating By Gary Schulman Name: Amin Mufti
--------------------------------- -----------------------------
Date: 6/25/99 Date: 6/23/99
--------------------------------- -----------------------------
17
<PAGE>
TABLE OF EXHIBITS
-----------------
1) EXHIBIT A: AUTHORIZED LOCATIONS
2) EXHIBIT B: COMPENSATION
3) EXHIBIT C: NON-DISCRIMINATION COMPLIANCE AGREEMENT
4) EXHIBIT D: COOPERATIVE ADVERTISING PROGRAM AGREEMENT
5) EXHIBIT E: ADVERTISING GUIDELINES FOR SALES AGENTS
18
<PAGE>
EXHIBIT A
AUTHORIZED LOCATIONS TO DO BUSINESS: WASHINGTON/BALTIMORE MSAs and
LICENSED RSAs
================================================================================
BELL ATLANTIC MOBILE PRIMARY SERVING MARKETS
--------------------------------------------------------------------------------
Market Name
--------------------------------------------------------------------------------
MSAs Licensed
--------------------------------------------------------------------------------
Washington, DC-MD MSA
Baltimore, MD MSA
--------------------------------------------------------------------------------
RSAs Licensed
--------------------------------------------------------------------------------
Delaware 1 - KENT Virginia 10 - FREDERICK (B1)
Maryland 2 - KENT Virginia 11 - MADISON
Maryland 3 - FREDERICK Virginia 12 - CAROLINE
================================================================================
19
<PAGE>
2. SPECIFIC LOCATIONS IN WHICH COMPANY IS AUTHORIZED TO DO BUSINESS:
45635 Northport Loop East
Fremont, CA 94538
This Agreement shall be effective upon execution by Bell Atlantic Mobile.
Bell Atlantic Mobile
20
<PAGE>
EXHIBIT B
COMPANY COMMISSION SCHEDULE
---------------------------
I. Subject to the terms set forth in Paragraph II, III, and IV below and subject
to change on notice from BAM, the following commission schedule applies:
BAM ("BAM") will pay Company a commission ("Commission") for CDPD Activations in
the Area as set forth in Exhibit A. Company will receive a Residual Usage
Commission for new Subscribers enrolled on BAM's Internet Service or other CDPD
price plans.
Upon the sale of both BAM Services and Company's products to any Customer
procured through the joint efforts of Company and BAM, and provided Company has
committed through Customer's contract to provide:
. successful installation of host software and hardware with backend
connectivity
. successful installation of mobile software and hardware with wireless
connectivity
. successful configuring of all software and hardware to BAM Network
specifications
. providing customer with first line Help Desk support
. thorough training of host and mobile system users
. submission of necessary information to BAM for Subscriber to receive IP
Address
1. RESIDUAL USAGE COMMISSION
-------------------------
====================================================================
Service Activation Co-op Residuals
Commission Advertising Allowance
--------------------------------------------------------------------
CDPD Plans $0 $0 [*]
====================================================================
Upon the sale of BAM's CDPD Services, BAM shall each month pay to Company a
Commission equal to [*] of BAM's collected monthly revenues in BAM's Area
resulting from the sale of BAM CDPD Services only to each Customer ("Residual").
Such monthly revenue shall not include taxes, surcharges or other fees, Access,
Port Charges or Visiting Charges. In no event will BAM have any obligation to
pay in excess of the Residual of its revenue to Company. BAM shall have no
obligation to pay a Residual to Company with respect to services provided by
other CDPD carriers outside of the BAM Market Area, regardless of whether such
services are provided at BAM's request or whether BAM receives any Commission
with respect to such services.
Residual shall be payable monthly following the month in which revenues are
received. BAM shall give Company reasonable financial information relating to
Customers covered by this Commission Agreement for the purpose of ascertaining
the amount of Commission due to Company. The Residual will continue to be paid
for the initial term of this Agreement for the period of time that the
Subscriber remains a BAM Subscriber. Such period of time not to exceed three (3)
years for any given subscriber including any period for which Residual was paid
to Company under any previous agreement between BAM and Company. If any new or
existing Subscriber fails to remain on BAM's CDPD service, for any reason,
Residual payments for that Subscriber shall cease. In the event that this
Agreement expires or is terminated by BAM or Company, for any reason, Residual
payments for all Subscribers shall cease. All Residual payments shall be
adjusted for Subscriber "bad debt" (funds on which Company has been paid
Residuals, but which are then not collected by BAM) and "fraudulent" usage.
BAM shall have no obligation to pay Residual Usage Commission to Company with
respect to services provided by other CDPD carriers outside of the BAM Area,
regardless of whether such services are provided at BAM's request or whether BAM
receives any Commission with respect to such services.
21
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
2. CHARGE BACK
-----------
If a New Subscriber enrolled by Company does not remain on BAM's CDPD
service for at least one hundred eighty (180) days or, if during that
period the New Subscriber's account is not in good standing, then BAM shall
charge back one hundred [100%] percent of the Residual paid for that
Subscriber. Good standing shall be defined as those customers whose bill
has been paid on an "account current" status according to BAM's polices.
3. CO-OP ADVERTISING ALLOWANCE
---------------------------
For each New Subscriber enrolled, a specified Co-op Advertising Allowance
will be accrued in a fund managed by BAM according to the specified
Commission Schedule. These funds will be paid out to the Company to help
defray advertising and other marketing expenses. A plan outlining specific
fund uses will be agreed to in writing beforehand by BAM and the Company.
BAM and the Company will track all funds accrued and the follow Co-op
policy defined within their local respective BAM region. No Co-op
Advertising Allowance will be paid on Residual Usage Commission.
4. OTHER TERMS
-----------
In the event that Company (intentionally or unintentionally) receives or
attempts to receive any Residual, hereunder for any Subscriber more than
once, Company understands and agrees that no payments whatsoever shall be
due from BAM.
The recapture of Residual Usage Commissions owed by Company to BAM, for
amounts exceeding the accrued Residual Usage Commissions owed to Company by
BAM, shall survive the expiration or termination of this Agreement.
Commissions paid are subject to change on notice from BAM.
5. AUTHENTICATABLE EQUIPMENT
-------------------------
All new Activations shall be made on authenticatable Equipment with random
A-key, supportable by the BAM network. Company shall not receive Commission
for new Subscribers who activate on non-authenticatable equipment.
22
<PAGE>
II. Any termination of this Agreement by BAM for cause or due to a breach by
Company, shall result in a forfeiture of any and all rights to a Residual.
However, the charge back of a Residual referred to in this Exhibit B shall
survive the expiration or termination of this Agreement.
III. Payment of a Residual, is subject to verification and Company hereby agrees
and understands that no Residual, payment whatsoever shall be due or payable by
BAM if any of the following occurs: (1) the Subscriber does not remain on BAM's
CDPD service for the applicable time period; (2) the Subscriber's account is not
in good standing; (3) Company has not followed all of BAM's rules and procedures
regarding the enrollment of Subscribers; or (4) Company (intentionally or
unintentionally) receives or attempts to receive payments hereunder for any
Subscriber more than once.
IV. In the event that BAM makes any payment to Company of any Residual,
hereunder, and such payments are at a later date determined to have been
erroneously made (pursuant to the terms and conditions of this Agreement), BAM
reserves the right to charge back such erroneous payment(s) to Company as a
credit against amounts owed to Company by BAM.
If there are insufficient amounts owed Company by BAM to effect such reduction,
Company shall pay any remaining sums to BAM immediately upon demand.
23
<PAGE>
EXHIBIT C
RESERVED ACCOUNTS
24
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Affirmative Action Exhibit D
[LOGO OF BELL ATLANTIC MOBILE APPEARS HERE]
An Equal Opportunity Employer
NON-DISCRIMINATION COMPLIANCE AGREEMENT
To the extent this contract is subject to them, Contractor shall comply with the
applicable provisions of the following: Exec. Order No. 11246, Exec. Order No.
11625, Exec. Order No. 12138, Exec. Order No. 11701, Exec. Order No. 11758,
Section 503 of the Rehabilitation Act of 1973, Section 402 of the Vietnam Era
Veterans' Readjustment Assistance Act of 1974 and the rules, regulations and
relevant Orders of the Secretary of Labor pertaining to the Executive Orders and
Statutes listed above. The following table describes the clauses which are
included in the contract.
Annual Contract Value Clauses
--------------------- -------
Under $2,500 5*
$2,500 - $10,000 5*, 8
$10,000 - $50,000 1,2,5*,6,7,8,9
$50,000 - $500,000 1,2,3**,4**,5,6,7,8,9
Over $500,000 1,2,3**,4**, 5,6,7,8,9***
1. Equal Employment Opportunity Provisions
In accordance with Executive Order 11246, dated September 24, 1965, and
Subpart 22.8 of Subchapter D of Chapter 1 of Title 48 of the Code of
Federal Regulations as may be amended from time to time, the parties
incorporate herein by this reference the regulations and contract clauses
required by those provisions to be made a part of government contracts and
subcontracts.
2. Certification of Non-segregated Facilities
The Contractor certifies that it does not and will not maintain any
facilities it provides for its employees in a segregated manner, or permit
its employees to perform their services at any location under its control
where segregated facilities are maintained; and that it will obtain a
similar certification prior to the award of any nonexempt subcontract.
3. Certification of Affirmative Action Program
The Contractor affirms that it has developed and is maintaining an
Affirmative Action Plan as required by Subpart 22.8 of Subchapter D. of
Chapter 1 of Title 48 of the Code of Federal Regulations.
4. Certification of Filing of Employer Information Reports
The Contractor agrees to file annually on or before the 31st of March
complete and accurate reports on Standard Form 100 (EEO-1) or such forms
as may be promulgated in its place.
5. Utilization of Small Business Concerns and Small Disadvantage Business
Concerns
(a) It is the policy of the United States that small business concerns
owned and controlled by socially and economically disadvantaged
individuals shall have the maximum practicable opportunity to participate
in performing contracts let by any Federal agency.
(b) The Contractor hereby agrees to carry out this policy in the awarding
of subcontractors to the fullest extent consistent with efficient contract
performance. The Contractor further agrees to cooperate in studies or
surveys as may be conducted by the United States Small Business
Administration or the awarding agency of the United States as may be
necessary to determine the extent of the Contractor's compliance with this
clause.
(c) As used in this contract, the term "small business concern" shall mean
a small business as defined pursuant to Section 3 of the Small Business
Act and relevant regulations promulgated pursuant thereto. The term "small
business concern owned and controlled by socially and economically
disadvantaged individuals" shall mean a small business concern.
(1) Which is at least 51 percent owned by one or more socially and
economically disadvantaged individuals; or, in the case of any
publicly owned business, at least 51 percent of the stock of
which is owned by one or more socially and economically
disadvantaged individuals; and
*Applies only if contract has further subcontracting opportunities.
**Applies only to businesses with 50 or more employees,
***Contractor must also adopt and comply with a small business disadvantaged
business subcontracting plan pursuant to Title 48 of the Code of Federal
Regulations.
25
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(2) Whose management and daily business operations are controlled by
one or more of such individuals;
The Contractor shall presume that socially and economically disadvantaged
individuals include Black Americans, Hispanic American, Native Americans,
Asian-Pacific Americans, Asian-Indian Americans and other minorities, or
any other individual found to be disadvantaged by the Administration
pursuant to section 8(a) of the Small Business Act.
(d) Contractors acting in good faith may rely on written representations
by their subcontractors regarding their status as either a small business
concern or a small business concern owned and controlled by socially and
economically disadvantaged individuals.
6. Utilization of Women-Owned Small Businesses
(a) "Women-Owned small businesses," as used in this clause, means
businesses that are at least 51 percent owned by women who are United
States citizens and who also control and operate the business.
"Control," as used in this clause, means exercising the power to make
policy decision.
"Operate," as used in this clause, means being actively involved in the
day-to-day management of the business.
(b) It is the policy of the United States that women-owned small
businesses shall have the maximum practicable opportunity to participate
in performing contracts awarded by any Federal agency.
(c) The Contractor agrees to use its best efforts to give women-owned
small business the maximum practicable opportunity to participate in the
subcontracts it awards to the fullest extent consistent with the efficient
performance of its contract.
7. Affirmative Action for Special Disabled Veterans and Veterans of the Vietnam
Era
In accordance with Exec. Order 11701, dated January 24, 1973, and subpart
22.13 of Subchapter D of Chapter 1 of Title 48 of the Code of Federal
Regulations, as may able amended from time to time, the parties
incorporate herein by the reference the regulations and contract clauses
required by those provisions to be made a part of Government contracts and
subcontracts.
8. Affirmative Action for Handicapped Workers
In accordance with Exec. Order 11758, dated January 15, 1974, and Subpart
221.4 of Subchapter D of Chapter 1 of Title 48 of the code of Federal
Regulations as may be amended from time to time, the parties incorporate
herein by this reference the regulations and contract clauses required by
those provisions to be made a part of Government contracts and
subcontracts.
9. Employment Reports on Special Disabled Veterans and Veterans of the Vietnam
Era
(a) The contractor agrees to report at least annually, as required by the
Secretary of Labor, on:
(1) The number of special disabled veterans and the number of
veterans of the Vietnam era in the workforce of the contractor by
job category and hiring location; and
(2) The total number of new employees hired during the period covered
by the report, and of that total, the number of veterans of the
Vietnam era.
(b) The above items shall be reported by completing the form entitled
"Federal Contractor Veterans" Employment Report VETS-100."
(c) Reports shall be submitted no later than March 31 of each year
beginning March 31, 1988.
(d) The employment activity report required by paragraph (a)(2) of this
section shall reflect total hires during the most recent 12-month period
as of the ending date selected for the employment profile report required
by paragraph (a)(1) of this section. Contractors may select an ending
date: (1) as of the end of any pay period during the period January
through March 1st of the year the report is due, or (2) as of December 31,
if the contractor has previous written approval form the Equal Employment
Opportunity Commission to do so for purposes of submitting the Employer
Information Report EEO-1 (Standard Form 100).
(e) The count of veterans reported according to paragraph (a) above shall
be based on voluntary disclosure. Each contractor subject to the reporting
requirements at 38 U.S.C. 2012(d) shall invite all special disabled
veterans and veterans of the Vietnam era who wish to benefit under the
affirmative action program at 38 U.S.C. 2012 to identify themselves to the
contractor. The invitation shall state that the information is voluntarily
provided, that the information will be kept confidential, that disclosure
or refusal to provide the information will not subject the applicant or
employee to any adverse treatment, and that the information will be used
only in accordance with the regulations promulgated under 38 U.S.C. 2012.
Nothing in this paragraph (e) shall relieve a contractor from liability
for discrimination under 38 U.S.C. 2012.
26
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[LOGO OF BELL ATLANTIC MOBILE APPEARS HERE]
CONTRACT NO. ###-##-####
JOINT CDPD MARKETING AGREEMENT
between
VECTORLINK, INC.
and
BELL ATLANTIC MOBILE
================================================================================
PRIVATE
The information contained herein is proprietary and should not be disclosed to
unauthorized persons. It is meant solely for use by authorized Bell Atlantic
Mobile employees and persons employed, retained or consulted by them.
<PAGE>
AMENDMENT NO, 1
This AMENDMENT No. 1 (the "Amendment") is made and entered into by and
between Cellco Partnership, a Delaware general partnership, doing business as
Bell Atlantic Mobile (hereinafter "BAM") and VECTORLINK, INC. (hereinafter
"Company") for attachment to the Joint CDPD Marketing Agreement No. ###-##-####
dated June 25, 1999 (the "Agreement").
1. This Amendment is an integral part of the Agreement. The terms used
herein which are defined or specified in the Agreement shall have the meanings
set forth in the Agreement. If there are any inconsistencies between the
provisions of this Amendment and the provisions of the Agreement, the provisions
of this Amendment shall control.
2. The Name of the Agent in the Preamble and all sections of the
Agreement shall be changed to: @Road, Inc.
3. Exhibit A, AUTHORIZED LOCATIONS TO DO BUSINESS shall be amended by
adding the following MSAs and RSAs:
=========================================================================
BELL ATLANTIC MOBILE PRIMARY SERVING MARKETS
-------------------------------------------------------------------------
Market Name
=========================================================================
MSAs Licensed
-------------------------------------------------------------------------
New York/New Jersey MSA Glen Falls, NY MSA
Philadelphia, PA-NJ MSA Burlington, VT MSA
Pittsburgh, PA MSA Providence, RI MSA
Allentown, PA-NJ MSA New Haven, CT MSA
New Brunswick, NJ MSA Worcester, MA MSA
Wilmington, DE-NJ MSA Pittsfield, MA MSA
Long Branch, NJ MSA Bridgeport, CT MSA
Reading, PA MSA Charlotte, NC MSA
Trenton, NJ MSA Springfield, MA MSA
Atlantic City, NJ MSA Greenville, SC MSA
Vineland, NJ MSA New Bedford, MA MSA
Boston, MA MSA Columbia, SC MSA
Manchester, NH MSA New London-Norwich, CT MSA
Poughkeepsie, NY MSA Hickory, NJ MSA
Albany, NY MSA Anderson, SC MSA
Orange, NY MSA Hartford, CT MSA
-------------------------------------------------------------------------
<PAGE>
=========================================================================
RSAs Licensed
-------------------------------------------------------------------------
Delaware 1 - KENT Connecticut 2 - WlNDHAM
New York 5 - OTSEGO North Carolina 1 - CHEROKEE
New Jersey 1 - HUNTERDON North Carolina 2 - YANCEY
New Jersey 2 - OCEAN North Carolina 3 - ASHE
New Jersey 3 - SUSSEX North Carolina 4 - HENDERSON
Pennsylvania 2 - MCKEAN North Carolina 5 - ANSON
Pennsylvania 6 - LAWRENCE (B2) Rhode Island 1 - NEWPORT
Pennsylvania 7 - JEFFERSON South Carolina 1 - OCONEE
Pennsylvania 9 - GREENE South Carolina 2 - NEWBERRY
Pennsylvania 11 - HUNTINGDON South Carolina 3 - CHEROKEE
Massachusetts 2 - BARNSTABLE South Carolina 7 - CALHOUN
New Hampshire 2 - CARROLL South Carolina 9 - LANCASTER
Vermont 1 - FRANKLIN Virginia 1 - LEE
Vermont 2 - ADDISON Georgia 2 - DAWSON
West Virginia 1 - MASON
West Virginia 2 - WETZEL
=========================================================================
4. This Amendment shall be effective when executed by both parties.
5. All provisions of the Agreement, including attachments thereto, not
addressed by this Amendment remain in full force and effect.
IN WITNESS WHEREOF, and intending to be bound hereby, the parties affix
their signature to this Amendment.
CELLCO PARTNERSHIP
by Bell Atlantic Mobile, Inc.
its managing general partner @ROAD, INC
By: /s/ Gary Schulman By: /s/ Amin Mufti
------------------------------- -----------------------------
Name: Gary Schulman Name: Amin Mufti
------------------------------- -----------------------------
Title: Regional President Title: VP Business Development
------------------------------- -----------------------------
Date: 10/12/99 Date: 10/8/1999
------------------------------- -----------------------------