Cellular Digital Packet Data Reseller Agreement - Telus Mobility and At Road Inc.
TELUS MOBILITY
CELLULAR DIGITAL PACKET DATA
RESELLER AGREEMENT
BETWEEN:
TELUS MOBILITY,
A DIVISION OF TELUS COMMUNICATIONS INC.,
3E, 3030 - 2nd Avenue S.E.
Calgary, Alberta T2A 5N7
Fax: 403 - 272 - 4866
(collectively referred to as "TELUS")
- and -
At Road, Inc
(Reseller Name)
47200 Bayside Parkway
(Street Address)
Fremont, California 94538
Fax: 510 - 445 - 0785
------------------------------------
(Reseller Code)
("the Reseller")
WHEREAS:
A. TELUS provides cellular digital packet data ("CDPD") network services within
the Provinces of Alberta and British Columbia, and provides such services using
facilities and equipment owned or leased by TELUS;
B. The Reseller markets, sells and services mobile resource management equipment
and application software used in conjunction with CDPD network services, and
wishes to acquire CDPD network services from TELUS in accordance with the terms
and conditions of this Agreement for the purpose of marketing and reselling such
services to end users in the Province of Alberta and British Columbia;
In consideration of the covenants set out in this Agreement, TELUS and the
Reseller agree as follows:
1. DEFINITIONS AND APPOINTMENT OF RESELLER
1.1 In this Agreement:
(a) "Affiliate" means "affiliate" as that term is defined in section 2 of
the Canada Business Corporations Act;
(b) "End Users" refers to persons that acquire the MRM Products and
Service and the TELUS Service from the Reseller, for use by themselves or
their employees, agents and subcontractors;
(c) "MRM Products and Service" means the mobile resource management
equipment and application software, and any other related products and
services, that are marketed, sold, supplied and serviced by the Reseller
in Alberta and British Columbia;
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(d) "Resale", "Resell" or "Reselling" refers to the sale and use by the
Reseller of the TELUS Service and the related network entity identifiers
to End Users, for a fee or a charge, in connection with the MRM Products
and Service;
(e) "Reseller Agent" refers to a person to whom the Reseller delegates or
subcontracts any of its duties or obligations under and in accordance
with this Agreement, or who is appointed by the Reseller to market,
promote or resell the MRM Products and Service on behalf of the Reseller;
(f) "TELUS Service" refers to the CDPD network services provided by
TELUS, and which are marketed and resold by the Reseller to End Users,
for a fee or a charge and in connection with the MRM Products and
Services; and
(g) "Term" refers to the initial term of this Agreement, or any renewal
term, as described in section 2.
1.2 TELUS agrees to provide the Reseller with the TELUS Service within the
TELUS service area in Alberta and British Columbia, and with related
network entity identifiers, on the terms and conditions set out in this
Agreement and for the purpose of the Resale of the TELUS Service, and
TELUS hereby appoints the Reseller as one of TELUS's approved resellers
for such purpose.
2. TERM
2.1 The initial term of this Agreement shall be fourteen months, commencing
November 1, 2000, and ending December 31, 2001, and thereafter shall be
automatically renewed for successive one year terms, on the same terms
and conditions as set out in this Agreement, unless written notice of
termination is given by either party to the other party at least 90 days
prior to the end of the original term, or any renewal term, as the case
may be, or unless sooner terminated as provided for herein.
3. EXTENT OF AUTHORITY AND RELATIONSHIP
3.1 Except as may be expressly permitted or provided for in this Agreement,
TELUS and the Reseller will not create any obligation on behalf of the
other, either express or implied, they are not responsible for the acts
and omissions of the other or the other's employees or agents, and no
agency, employment, partnership, franchise, joint venture or other joint
relationship is created by this Agreement.
4. OTHER TELUS CDPD RESELLERS AND OTHER WIRELESS SERVICES
4.1 The rights granted to the Reseller in this Agreement are not exclusive,
and TELUS has the unrestricted right, in its sole discretion:
(a) to provide the TELUS Service to, and to appoint other resellers for
the purposes of marketing and reselling the TELUS Service in any area or
province, in connection with automatic vehicle location services or any
other products or services;
(b) to appoint dealers, agents or authorized representatives to market,
promote, solicit customers (including customers of the Reseller) and
subscriptions for, or sell the TELUS Service on behalf of TELUS to any
persons throughout the Provinces of Alberta or British Columbia,
including customers of the Reseller, for any purpose;
(c) to provide the TELUS Service to any persons in the Provinces of
Alberta or British Columbia, including customers of the Reseller.
4.2 Except as is expressly permitted or provided for in this Agreement, or
except with the prior written consent of TELUS, the Reseller agrees that:
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(a) it will not, directly, or indirectly through its directors, officers,
shareholders, an affiliated corporation, an agent or subcontractor, or
otherwise, market, promote, solicit customers or subscriptions for,
supply, sell or resell any service in competition to the TELUS Service or
any other wireless telecommunications network service offered or provided
by TELUS within the Provinces of Alberta and British Columbia;
(b) it will not authorize any director, officer, shareholder, affiliated
corporation, agent or subcontractor to market, promote, solicit customers
or subscriptions for or sell any service in competition to the TELUS
Service or any other wireless telecommunications network service offered
or provided by TELUS, or to have any controlling interest in any entity
that markets, promotes, sells or provides any service in competition to
the TELUS Service or any other wireless telecommunications network
service offered or provided by TELUS within the Provinces of Alberta and
British Columbia;
(c) it will not enter into any agreements with the provider of any such
competing service; and
(d) it will not display any signage or literature of the provider of any
such competing service.
Provided however, that the foregoing provision shall not apply to the
supply, sale or resale of any service offered or provided by an Affiliate
of TELUS including, but not limited to, Clearnet PCS Inc. or Clearnet
Inc.
5. OBLIGATIONS OF THE RESELLER
5.1 The Reseller shall market, promote and Resell the TELUS Service to End
Users throughout the Provinces of Alberta and British Columbia, at its
own expense and using its own efforts. The Reseller shall maintain such
marketing and customer service standards that are appropriate in order to
maintain a high quality TELUS Service and reputation, shall provide
customers and End Users with prompt, courteous, and efficient service,
shall take every reasonable precaution not to disclose any customer or
End User information, other than as permitted by Reseller's privacy
policy, as amended from time to time, or any applicable privacy
legislation, and shall deal with customers and End Users honestly and
fairly. Neither party shall by way of statement, act or omission,
discredit or reflect adversely upon the reputation of or the quality of
the other party or the products or services provided by such other party.
5.2 The Reseller shall not:
(a) market, promote, supply or resell the TELUS Service in connection
with any products or services other than the MRM Products and Service;
(b) market, promote or sell the MRM Products and Service as a service
provided by TELUS;
(c) brand or associate the MRM Products and Service with any TELUS
trademarks or trade names (or those of any of TELUS's related or
affiliated corporations) without the express prior written consent of
TELUS;
(d) represent or state in any way, in any advertising or promotional
materials or otherwise, that the MRM Products and Services or any other
services provided by the Reseller are provided by way of agreement or
arrangement with, or with the facilities or equipment of, TELUS without
the express prior written consent of TELUS.
5.3 Without limiting any of the foregoing, this Agreement does not grant to
the Reseller any interest in or any right to use any trademark or trade
name owned or used by TELUS or relating to the TELUS Service, and the
Reseller shall not represent in any way that it has any such interests or
rights. The Reseller may only use TELUS trademarks or trade names, in
such manner and for such purpose as TELUS may specify and approve from
time to time, and the Reseller shall execute any license agreements
required by TELUS relating to the use of TELUS trademarks or trade names.
6. RESELLER'S BUSINESS LOCATIONS
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6.1 The Reseller will advise TELUS in writing of all of the locations from
which it markets, promotes, supplies or Resells the TELUS Service. The
Reseller will only market, promote, supply and Resell the TELUS Service
from a location or locations used only for commercial purposes, and not
for residential purposes.
7. FEES
7.1 The Reseller agrees to pay the fees, rates and charges set out in
Schedule A for the TELUS Service. The Reseller will be billed by TELUS,
and shall pay, for all data, measured in kilobytes, transmitted from or
received by the mobile device associated with any network entity
identifier provided by TELUS to the Reseller under this Agreement. The
kilobyte count will include both protocol headers and user data.
7.2 TELUS shall bill the Reseller each month for the TELUS Service in
accordance with this Agreement, and the Reseller shall pay all amounts
set out in each bill sent to the Reseller net thirty (30) days from the
date of the invoice/bill. All amounts not paid by the due date are past
due and the Reseller must pay any late payment charges shown on the bill.
The rates and charges set out in this Agreement do not include any sales,
excise or value added taxes related to the provision of the TELUS
Service, and if any such taxes are levied by a government authority, the
Reseller shall be responsible to remit to the appropriate authority any
such amounts, or the Reseller shall pay TELUS on demand for all such
amounts and the Reseller shall indemnify and save harmless TELUS against
any and all such amounts. All payments shall be made in Canadian dollars.
7.3 The Reseller shall be responsible to pay all amounts billed to it by
TELUS pursuant to this Agreement, whether or not the Reseller has been
paid or has collected the fees, rates or charges payable by End Users for
the TELUS Service. The Reseller shall not be responsible for any charges
owed by Pinpoint Fleet Services, Ltd. or any other party to Telus which
were incurred prior to the initial term of this Agreement.
7.4 All fees, rates or charges charged by the Reseller to End Users for the
TELUS Service shall be determined by the Reseller, in accordance with any
applicable regulation. TELUS shall have no authority or responsibility to
determine such fees or other amounts, and TELUS shall have no
responsibility or authority for billing or collecting such fees or any
other amounts from End Users.
8. NETWORK ENTITY IDENTIFIERS AND END USERS
8.1 When requested by the Reseller, TELUS will provide the Reseller with
network entity identifiers that can be used by the Reseller to provide
the TELUS Service to End Users, in minimum quantities of five network
entity identifiers at a time. The fees, rates or charges charged by TELUS
for the TELUS Service in respect of such network entity identifiers will
commence on the date such numbers are activated for the Reseller, and
will be charged to the Reseller for a minimum period of one month.
8.2 If the Reseller no longer requires use of any block of five network
entity identifiers assigned to it, the Reseller may, on ten (10) days
prior notice to TELUS, terminate its use of that block of network entity
identifiers, and will no longer be obligated to pay the fees, rates or
charges in respect of that block of network entity identifiers,
commencing with the next TELUS billing period following the termination
of those network entity identifiers.
8.3 The Reseller will follow and comply with such additional commercially
reasonable procedures and processes respecting the assignment,
coordination and termination of network entity identifiers and the
activation of mobile devices used in conjunction with the TELUS Service
as TELUS may advise from time to time.
8.4 Neither the Reseller nor any End Users will have any property rights in
the network entity identifiers, and TELUS may change or reassign any
network entity identifiers at any time after giving 60 days prior notice
to the Reseller.
8.5 The Reseller shall not permit any End Users to resell the TELUS Service.
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8.6 The TELUS Service shall be provided to End Users on terms and conditions
that are determined by the Reseller, in accordance with any applicable
regulation. TELUS shall have no authority or responsibility to determine
such terms and conditions, and TELUS shall have no responsibility for the
provision of the TELUS Service to End Users, or for any customer service
activities for or in respect of End Users.
9. MRM PRODUCTS AND SERVICE AND CDPD EQUIPMENT
9.1 The Reseller shall provide all MRM Products and Service, and all mobile
devices, antennae and accessory equipment required by End Users in
connection with the TELUS Service, together with any warranty and
maintenance services required by End Users in respect of the MRM Products
and Services or any mobile devices, antennae or other equipment used in
connection with the TELUS Service. The mobile devices and other equipment
provided by the Reseller shall be of high quality, and shall be
compatible, throughout the term, with the TELUS CDPD network unless TELUS
modifies the TELUS CDPD Network or TELUS Service in a manner resulting in
continued compatibility being commercially unreasonable. TELUS reserves
the right to require the Reseller to discontinue the use of (by the
Reseller or any End User) any mobile devices, antennae or other equipment
used in connection with the TELUS Service that, in TELUS's sole opinion
or discretion, has any adverse effect on the TELUS CDPD network, or do
not meet such technical standards as may be determined by TELUS from time
to time.
9.2 TELUS shall not be responsible for any failures of or defects in mobile
devices, antennae or any other equipment sold or supplied by the
Reseller, or for any guarantees, warranty claims or maintenance services
in respect of such mobile devices, antennae or equipment.
10. TERMINATION OF AGREEMENT AND TELUS SERVICE
10.1 TELUS may terminate this Agreement, and may suspend or terminate the
TELUS Service, without any further liability of TELUS to the Reseller, at
any time immediately upon giving written notice to the Reseller:
(a) if the Reseller is in breach of any term of this Agreement, provided
such breach is capable of being cured, and such breach continues for
thirty (30) calendar days after TELUS has notified the Reseller in
writing of it;
(b) if TELUS, in its sole discretion, considers the Reseller to be an
unacceptable credit risk;
(c) if the Reseller ceases to do business as a going concern or fails to
keep at least one of its business locations open for business during its
usual business hours for ten (10) or more calendar days, or if the
Reseller becomes insolvent or bankrupt, makes any assignment for the
benefit of creditors, suspends its business or files a notice of
intention to make a proposal to some or all of its creditors, or a
trustee, receiver or other similar official is appointed for it or for a
substantial part of its property or it consents to any such appointment,
or any bankruptcy, dissolution, liquidation, winding-up, arrangement or
insolvency proceeding is instituted by it, or any such proceeding is
instituted against it or any part of its property and is not contested
within thirty (30) calendar days of being instituted, or it is dissolved,
liquidated, wound-up or passes any resolution to do so;
(d) if the Reseller ceases to be engaged in the marketing, sale, supply
and servicing of the MRM Products and Service;
(e) if any director or executive officer of the Reseller is convicted in
a court of competent jurisdiction of any felony if, in TELUS's sole
determination, the conviction would be likely to adversely affect the
operations or business of the Reseller or the goodwill and reputation of
the TELUS Service; or
(f) if TELUS ceases to offer the TELUS Service.
10.2 Reseller may terminate this Agreement without any further liability of
Reseller to TELUS, at any time immediately upon giving written notice to
TELUS:
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(a) if TELUS is in breach of any term of this Agreement, provided such
breach is capable of being cured, and such breach continues for thirty
(30) calendar days after the Reseller has notified TELUS in writing of
it;
(b) if TELUS ceases to do business as a going concern, or if TELUS
becomes insolvent or bankrupt, makes any assignment for the benefit of
creditors, suspends its business or files a notice of intention to make a
proposal to some or all of its creditors, or a trustee, receiver or other
similar official is appointed for it or for a substantial part of its
property or it consents to any such appointment, or any bankruptcy,
dissolution, liquidation, winding-up, arrangement or insolvency
proceeding is instituted by it, or any such proceeding is instituted
against it or any part of its property and is not contested within thirty
(30) calendar days of being instituted, or it is dissolved, liquidated,
wound-up or passes any resolution to do so;
(c) if any director or executive officer of TELUS is convicted in a court
of competent jurisdiction of any indictable offence if, in the Reseller's
sole determination, the conviction would be likely to adversely affect
the operations or business of TELUS or the goodwill and reputation of the
Reseller; or
(d) if TELUS ceases to offer the TELUS Service.
11. EFFECT OF TERMINATION
11.1 Upon any expiration or termination of this Agreement, or the suspension
or termination of the TELUS Service, the Reseller shall cease any
marketing, promotion, supply or Resale of the TELUS Service, and TELUS
may de-activate all network entity identifiers provided by TELUS to the
Reseller pursuant to this Agreement.
11.2 Upon any termination of this Agreement, if TELUS determines not to
suspend or terminate the TELUS Service, or determines not to de-activate
any network entity identifiers provided by TELUS to the Reseller, the
Reseller will, at TELUS' cost, provide to TELUS all relevant information
concerning its End Users, and will also provide reasonable technical
assistance, take such other reasonable action and cause such other things
to be done as may be reasonably necessary for the orderly termination of
this Agreement with respect to the TELUS Service and the transition
thereof from the Reseller to TELUS with minimum disruption to End Users.
12. TELUS FACILITIES
12.1 TELUS has the sole authority in respect of, and the sole responsibility
for, the CDPD network and all other facilities and equipment used to
provide the TELUS Service, and the Reseller shall have no responsibility
for, and no rights or interests in respect of, the ownership, control,
operation or maintenance of such facilities or equipment or the TELUS
Service.
13. COMPLIANCE WITH LAWS
13.1 In conducting its business, in carrying out its obligations pursuant to
this Agreement, or in marketing, promoting or providing the TELUS
Service, the Reseller will comply with all laws, statutes, rules, orders,
ordinances and regulations of all governmental authorities.
14. EXCLUSION OF WARRANTIES AND LIMITATIONS OF THE TELUS SERVICE
14.1 Except as expressly stated in this Agreement, TELUS makes no guarantees,
warranties or representations, express or implied, with respect to the
TELUS Service. The Reseller acknowledges and agrees that TELUS has made
no representations, guarantees or warranties with respect to the profits
or losses, if any, to be made or incurred by the Reseller during the term
of or as a result of this Agreement.
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14.2 TELUS does not guarantee that the TELUS Service will be error-free or
uninterrupted, nor does it guarantee receipt of material or messages
transmitted over or through the TELUS CDPD network or the networks of
other companies, and TELUS makes no representations as to coverage or
quality of service. The TELUS Service may fail or be interrupted for
reasons including, but not limited to, environmental conditions,
technical limitations, defects or failures, emergency or public safety
requirements, limitations of the systems of other telecommunications
companies, or causes beyond TELUS's control. TELUS disclaims all
representations, warranties and conditions (express, implied or
statutory) relating to any mobile devices, antennae or other equipment
used with the TELUS Service (whether the equipment is the Reseller's or
the End User's, or is sold to the Reseller or the End User by TELUS, a
TELUS dealer or reseller, or any other person), including but not limited
to any warranty or condition of merchantability, fitness for a particular
purpose, durability, absence of defects of design or manufacture, and
fault-free or continuous operability or service. TELUS does not guarantee
the privacy of any communications over or through the TELUS CDPD network.
15. LIMITATION OF LIABILITY
15.1 Except for a breach of section 17 (Confidential Information) and/or the
indemnification obligations of the Reseller as set out herein, neither
party shall be liable to the other for any incidental, indirect,
consequential, special or punitive damages of any kind or nature arising
out of this Agreement, whether such liability is asserted on the basis of
contract, tort (including negligence or strict liability), or otherwise,
even if the party has been warned of the possibility of any such loss or
damage in advance. Liability for damages shall be limited and excluded as
set forth herein, even if any exclusive remedy provided for in this
Agreement fails of its essential purpose.
15.2 TELUS will not be liable to the Reseller, the End User or any other
person for any damages (direct, indirect, special, consequential, or
otherwise), expenses, loss of profits, loss of earnings, loss of business
opportunities, loss of data, or other loss, arising directly or
indirectly out of or in connection with this Agreement or the provision,
use or failure of the TELUS Service or mobile devices, antennae or other
equipment, whether negligent or otherwise, and which would otherwise give
rise to a cause of action in contract, tort, or any other doctrine of
law, including (but not limited to) those arising from:
(a) errors, delays, interruptions or omissions in the transmission of
material or messages over or through the TELUS CDPD network or the
networks of other companies;
(b) the content of any material or messages transmitted over or through
the TELUS CDPD network, including (but not limited to) content that may
be defamatory, infringing the rights of other persons, or unlawful in any
way;
(c) the infringement of any intellectual property rights arising from
combining or using the Reseller's equipment or the End User's equipment
with TELUS's equipment or the TELUS Service;
(d) any accident or injury involving a vehicle, air or water-craft
operated by the Reseller, End User or any other person and in connection
with the use or failure of mobile devices, antennae, equipment or the
TELUS Service;
(e) the use or operation of any mobile device, antennae or other
equipment used with the TELUS Service (whether the equipment is the
Reseller's or the End User's or is sold to the Reseller or the End User
by TELUS, a TELUS dealer or reseller, or any other person).
16. INDEMNITIES
16.1 The Reseller shall indemnify, hold harmless and defend TELUS, its
officers, employees, agents and related or affiliated corporations, from
and against any and all actions, causes of actions, claims and demands of
whatsoever nature, brought by any End User or any other person, caused
by, arising directly or indirectly out of, or in connection with:
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(a) any breach of this Agreement by the Reseller, or any suspension or
termination of the TELUS Service or de-activation of network entity
identifiers pursuant to this Agreement;
(b) damages or injuries, including death, to any property or persons,
that are caused by or arise out of any negligent act or omission of the
Reseller or those for whom it is responsible for in law;
(c) the provision, use or failure of MRM Products and Service, or any
other products or services provided by the Reseller, including, without
limiting the generality of the foregoing, any guarantees, warranties or
representations given or made by the Reseller regarding the TELUS
Service, the MRM Products and Service, or any other products and
services;
(d) the provision, use or failure of the TELUS Service, whether caused by
the negligence of TELUS or otherwise or the provision, use or failure of
any mobile devices, antennae or other equipment provided by the Reseller,
including (but not limited to):
(i) errors, delays, interruptions or omissions in the transmission of
material or messages over or through the TELUS CDPD network or the
networks of other companies;
(ii) the content of any material or messages transmitted over or
through the TELUS CDPD network, including (but not limited to)
content that may be defamatory, infringing the rights of other
persons, or unlawful in any way;
(iii) the infringement of any intellectual property rights arising
from combining or using the Reseller's equipment or the End User's
equipment with TELUS's equipment or the TELUS Service;
(iv) any accident or injury involving a vehicle, air or water-craft
operated by the Reseller, End User or any other person and in
connection with the use or failure of mobile devices, equipment or
the TELUS Service;
(v) the use or operation of any mobile device, antennae or other
equipment used with the TELUS Service (whether the equipment is the
Reseller's or the End User's or is sold to the Reseller or the End
User by TELUS, a TELUS dealer or reseller, or any other person),
16.2 This section 16 will survive any termination or expiry of this Agreement.
17. CONFIDENTIAL INFORMATION
17.1 During the term of this Agreement, either party (the "disclosing party")
may provide the other party (the "recipient") with certain information,
data and/or documentation, (referred to in this Agreement as
"Confidential Information") which is of value to the disclosing party, is
not generally known in the industry or to competitors of that party, and
is identified as confidential at the time of disclosure. Confidential
Information shall remain the sole property of the disclosing party, and
the recipient shall not disclose or make available any Confidential
Information of the disclosing party, whether orally or in writing or in
any other way, to any other person without the prior written permission
of the disclosing party unless the information is disclosed pursuant to
the order of a court, administrative agency, or other governmental body,
provided, however, that recipient shall provide prompt notice of such
court order or requirement to the disclosing party to enable the company
to seek a protective order or otherwise prevent or restrict such
disclosure. The recipient shall take every reasonable precaution to avoid
disclosing such Confidential Information, and such precautions shall
include, but are not limited to, the safeguarding of documents, the
making of copies only when necessary, and complying with security
instructions issued by the disclosing party to the recipient from time to
time. The recipient shall, on the disclosing party's request or upon
termination or expiration of this Agreement, return all documentary or
other records of such Confidential Information and all copies thereof,
except as may be necessary for the recipient's accounting, tax, legal or
regulatory requirements.
17.2 The recipient's duty of non-disclosure shall not extend to information,
data or documentation which is made public by the disclosing party or a
third party legally permitted to do so, and the recipient may disclose
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Confidential Information when ordered to do so by a court or other
competent authority or if it is otherwise legally empowered to do so.
17.3 The Reseller will not use any Confidential Information of TELUS in
competition with the TELUS Service, or for any purpose other than the
marketing and Resale of the TELUS Service in accordance with this
Agreement.
17.4 This section 17, and the obligations of non-disclosure set out in this
section, shall survive any termination or expiry of this Agreement.
18. INJUNCTIVE RELIEF
18.1 In the event of a breach by either the Reseller or TELUS of certain of
its covenants in this Agreement, including without limitation the
provisions in section 17 respecting Confidential Information, and the
provisions in section 5 respecting TELUS trademarks, the parties agree
that the harm suffered by the Reseller or TELUS would not be compensable
by monetary damages alone and, accordingly, that TELUS or the Reseller
will, in addition to other available legal or equitable remedies, be
entitled to an injunction against such breach or any threatened breach.
19. ASSIGNMENT AND RESELLER AGENTS
19.1 This Agreement may not be assigned by the Reseller without the prior
written consent of TELUS, which consent may not be unreasonably withheld
or delayed by TELUS; provided, however, that Reseller may assign this
Agreement without the consent of TELUS in connection with any transfer to
a Reseller Affiliate, merger, consolidation, sale of all or substantially
all of Reseller's assets or any other transaction in which more than
fifty percent (50%) of Reseller's voting securities are transferred. This
Agreement may not be assigned by TELUS without the prior written consent
of the Reseller, which consent may not be unreasonably withheld by
Reseller; provided, however, that TELUS may assign this Agreement without
the consent of Reseller in connection with any transfer to a TELUS
Affiliate, merger, consolidation, sale of all or substantially all of
TELUS' assets or any other transaction in which more than fifty percent
(50%) of TELUS' voting securities are transferred.
19.2 The Reseller may, without the prior written consent of TELUS, delegate or
subcontract any of its duties or obligations under this Agreement to
Reseller Agents, or appoint Reseller Agents to market, promote or sell
the MRM Products and Service, provided that the Reseller will continue to
be responsible for all of its duties and obligations under this Agreement
and for any acts or omissions of any Reseller Agent, provided that any
acts or omissions of a Reseller Agent shall be attributed to the
Reseller, and the Reseller agrees to:
(a) be liable to TELUS, its officers, employees, agents and related or
affiliated corporations for all losses, costs, damages and expenses of
whatsoever nature, that TELUS may sustain, pay or incur as a result or
in connection with any act or omission of a Reseller Agent, and
(b) indemnify TELUS, its officers, employees, agents and related or
affiliated corporations from and against any and all actions, causes of
action, claims and demands of whatsoever nature caused by, arising
directly or indirectly out of, or in connection with any acts or
omissions of a Reseller Agent.
20. INTERPRETATION
20.1 Any reference to "Agreement" herein means this Agreement, and not any
particular paragraph, section or other portion, and includes any
amendments and the attached Schedules A (Fees, Rates, and Charges), which
is incorporated into and deemed to be a part of this Agreement.
20.2 Whenever required by the context, the singular includes the plural and
vice versa, any gender referred to includes the feminine, masculine or
neuter gender, and "person" means any individual, partnership,
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corporation, trust, unincorporated association, joint venture, or
government or any agency, department or instrumentality thereof.
20.3 All capitalised terms used in this Agreement (other than capitalised
terms used in a heading) have the meanings ascribed to them within this
Agreement. The headings in this Agreement are for convenience of
reference only and shall not affect the interpretation or meaning of this
Agreement.
21. NOTICES
21.1 Notices given pursuant to the terms of this Agreement shall be in writing
and shall be deemed to have been received on the date sent when hand
delivered, or sent by facsimile, or seventy two (72) hours after the same
has been sent by prepaid registered mail, to the addresses for TELUS and
the Reseller set out on the first page of this Agreement, and in the case
of TELUS, to the attention of Milo Decol, and in the case of Reseller, to
the attention of the Legal Department.
22. SEVERABILITY
22.1 If any provision of this Agreement is invalid or unenforceable in any
circumstances, the remainder of this Agreement, and the application of
such provision in any other circumstances, shall not be affected thereby.
23. ENTIRE AGREEMENT
23.1 This Agreement constitutes the entire agreement between the Reseller and
TELUS pertaining to the subject matter hereof, and supersedes all prior
agreements, understandings, negotiations and discussions whether oral or
written. There are no oral or implied agreements and no oral or implied
representation, warranties or understandings between the parties.
24. FORCE MAJEURE
24.1 Neither party shall be responsible for failure to comply with any of the
terms of this Agreement, where such failure is directly or indirectly
caused by or results from events of force majeure beyond the control of
either party. These events shall include, but not be limited to fire,
flood, earthquake, accident, civil disturbances, war, rationing,
embargoes, strikes or labour problems, delays in transportation, acts of
God, or acts of government.
25. GOVERNING LAWS
25.1 This Agreement shall be governed by and construed in accordance with laws
of the Province of Alberta and the laws of Canada, applicable therein.
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26. GENERAL
26.1 All of the provisions of this Agreement are Confidential Information to
which the provisions of section 17 of this Agreement apply. This
Agreement shall not be modified, amended, rescinded, cancelled, or waived
except by a written Agreement signed by the parties. This Agreement shall
enure to the benefit of and be binding on the parties, their personal
representatives, successors and permitted assigns.
WHEREFORE the parties have executed this Agreement on the dates written below.
[LEGAL STAMP]
TELUS MOBILITY, A DIVISION OF
TELUS COMMUNICATIONS INC. AT ROAD, INC.
Per: /s/ GREG COOKE-DALLIN Per: /s/ DAVE S.MANOVICH
----------------------------- --------------------------------
Authorised Signature Authorised Signature
GREG COOKE-DALLIN DAVE S. MANOVICH
--------------------------------- ------------------------------------
Name (Print or Type) Name (Print or Type)
Dir. Planning & Future Svcs SR VP/COO
--------------------------------- ------------------------------------
Title Title
Jan. 19/01 1/16/01
--------------------------------- ------------------------------------
Date Date
------------------------------------
City and Province where signed
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SCHEDULE A
FEES, RATES AND CHARGES
At the time a network entity identifier ("NEI") is assigned by TELUS to the
Reseller, the Reseller will select one of the following rate plans that will
apply for the provision of the TELUS Service to the mobile device associated
with each such NEI.
------------------------------------------------------------------------------------------------------------------------
RATE PLANS
------------------------------------------------------------------------------------------------------------------------
FEES AND TELUS 50 TELUS 200 TELUS 1000 TELUS 3000 TELUS 5000 TELUS 10000
CHARGES PER
NEI
------------------------------------------------------------------------------------------------------------------------
Access Fee per [*} [*} [*} [*} [*} [*}
Month (includes
[*] discount)
------------------------------------------------------------------------------------------------------------------------
Kilobytes [*} [*} [*} [*} [*} [*}
included in
monthly access
fee
------------------------------------------------------------------------------------------------------------------------
Rate for [*} [*} [*} [*} [*} [*}
Kilobytes not
included
------------------------------------------------------------------------------------------------------------------------
Activation Fee [*} [*} [*} [*} [*} [*}
------------------------------------------------------------------------------------------------------------------------
System Access [*} [*} [*} [*} [*} [*}
Fee
------------------------------------------------------------------------------------------------------------------------
Roaming Rate for [*} [*} [*} [*} [*} [*}
Kilobytes
------------------------------------------------------------------------------------------------------------------------
[*] Confidential material redacted and filed separately with the SEC.
12