Fill and Sign the Service Reseller Agreement between Intelligent Information

INTELLIGENT INFORMATION INCORPORATED SERVICE RESELLER AGREEMENT THIS AGREEMENT is entered into by and between Intelligent Information Incorporated, a Delaware corporation (hereinafter referred to as "III") and Omnipoint Communications Inc., a Delaware Corporation (hereinafter referred to as the "Reseller"). The effective date of this agreement is November 8, 1996. WHEREAS, III owns computer software and has related procedures (hereinafter referred to as "Systems") and by utilizing these Systems provides "Products" in the form of "Services" and "Packages" that deliver "intelligent information" based on data from various sources (hereinafter referred to as "Information Providers") to text displaying wireless devices either at prearranged times or as data conditions change by prearranged parameters; and WHEREAS, Reseller is desirous of providing these Products to customers of its PCS services and to customers of PCS networks owned or managed by entities controlling, controlled by, or under common control with Reseller (which customers are hereinafter referred to as "Subscriber(s)"); and WHEREAS, the parties agree to enter into certain arrangements, as set forth herein, for that purpose; NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby confessed and acknowledged, it is agreed as follows; 1. The term of this agreement is three (3) years beginning on the effective date of this agreement. This entire agreement shall automatically renew itself annually for additional one (1) year terms unless either party sends notice of termination to the other party sixty (60) days before the anniversary of the effective date of this agreement, by certified mail. 2. Reseller shall provide and maintain computer access ports into its systems for use by III in delivering messages containing information addressed to Reseller's Subscribers and for sending customer profile updates to III. The protocol used on these ports shall be mutually agreeable to Reseller and III. Reseller shall reimburse III for the communications charges III actually and reasonably incurs to deliver messages to Reseller's computer access port and to receive customer activations and updates as contemplated by this Agreement. 3. Reseller shall deliver a subscriber agreement in a form mutually agreed to by the parties to each Subscriber (hereinafter referred to as the "Subscriber Agreement", hereto annexed as Appendix A) prior to activation of service along with any description of the services delivered to the Subscribers. Reseller may activate or support more than one wireless device with the same identification number, but payment for the charges associated with each such device shall be in accordance with Appendix B of this Agreement RESELLER HEREBY AGREES TO INDEMNIFY AND HOLD, III AND/OR ANY INFORMATION PROVIDERS HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES, LOSSES, OR EXPENSES SUFFERED OR PAID AS A RESULT OF ANY CLAIMS, DEMANDS, SUITS, CAUSES OF ACTION, PROCEEDINGS, AWARDS, JUDGMENTS, AND LIABILITIES (INCLUDING REASONABLE ATTORNEY'S FEES) INCURRED IN LITIGATION, ARBITRATION OR OTHERWISE, ASSESSED, INCURRED, OR SUSTAINED BY OR AGAINST III AND/OR ANY INFORMATION PROVIDERS BY REASON OF RESELLER'S FAILURE TO DELIVER THE SUBSCRIBER AGREEMENT TO ANY SUBSCRIBER. RESELLER FURTHER AGREES TO REIMBURSE III FOR ALL LOSSES, COSTS, DAMAGES AND EXPENSES INCURRED, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEY'S FEES AND COURT COSTS, IN OBTAINING INDEMNIFICATION FROM RESELLER. RESELLER FURTHER AGREES TO DISTRIBUTE FROM TIME-TO-TIME MODIFIED OR SUPPLEMENTED SUBSCRIBER AGREEMENTS AS REQUIRED BY THE INFORMATION PROVIDERS. II. HEREBY AGREES TO INDEMNIFY AND HOLD RESELLER HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES, LOSSES, OR EXPENSES SUFFERED OR PAID AS A RESULT OF ANY CLAIMS, DEMANDS, SUITS, CAUSES OF ACTION, PROCEEDINGS, AWARDS, JUDGMENTS, AND LIABILITIES (INCLUDING REASONABLE ATTORNEY'S FEES) INCURRED IN LITIGATION, ARBITRATION OR. OTHERWISE, ASSESSED, INCURRED, OR SUSTAINED BY OR AGAINSTRESELLER CONFIDENTIAL TREATMENT REQUESTED Brackets have been used to identify information which has been omitted from this exhibit pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission. 1 2 BY ANY THIRD PARTY, INCLUDING INFORMATION PROVIDERS OR THEIR AGENTS, EXCEPT THOSE INFORMATION PROVIDERS OR AGENTS DIRECTLY UNDER CONTRACT BY RESELLER, ALLEGING THAT THE MARKETING, DISTRIBUTION, TRANSMISSION OR USE OF THE PRODUCTS OR SERVICES CONTEMPLATED BY THIS AGREEMENT CONSTITUTES AN INFRINGEMENT OF COPYRIGHT, TRADEMARK RIGHT OR OTHER INTELLECTUAL PROPERTY RIGHT; DEFAMATION; INFRINGEMENT OF ANY RIGHT OF PRIVACY OR PUBLICITY; OR ANY SIMILAR RIGHT OR PRIVILEGE, III FURTHER AGREES TO REIMBURSE RESELLER FOR ALL LOSSES, COSTS, DAMAGES, AND EXPENSES INCURRED, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEY'S FEES AND COURT COSTS, IN OBTAINING INDEMNIFICATION FROM III. EITHER PARTY'S OBLIGATION TO INDEMNIFY AGAINST ANY SUCH CLAIM IS CONTINGENT UPON RECEIPT OF PROMPT WRITTEN NOTICE OF ANY EVENT GIVING RISE TO AN OBLIGATION TO INDEMNIFY AND GRANT OF THE RIGHT TO DEFEND AND SETTLE ANY SUCH CLAIM BY THE INDEMNIFIED PARTY. 4. Prior to the fifth (5th) day of each month this agreement is effective, Reseller shall provide to III a count of all Subscribers not on Resellers Basic or entry level service plan. 5. Prior to the last day of the month, based on the report described in paragraph 4, Reseller shall remit in U.S. dollars, using a form or method acceptable to III, payment for its Subscribers. The amount of the payment due is the total number of Subscribers, without regard for usage, times the rate per Subscriber for each Package and Service, plus the setup charge for each new Subscriber, plus message charges. The Package and Service rates per Subscriber, setup charges, message charges and associated conditions are as listed in Appendix B. Any preexisting Reseller related Subscribers, e.g., executives, demos, etc., are not be subject to the setup fee provisions of Appendix B, however each one of these Subscribers will be assigned to a Package or Service, subject to the appropriate charges, upon execution of this Agreement. 6. III shall have the right, at its sole discretion to sell or license the Products to any other person or company for any purpose. Computer software systems provided by III to Reseller shall remain the sole property of III. Such software shall not be reproduced, except for backup purposes or use at multiple Reseller locations, or distributed by Reseller. In the event of the termination of this Agreement all software provided to Reseller by III shall be returned toIII. 7. Reseller shall take appropriate measures to insure that the following copyright notice, and those defined for each Product or Service in Appendix B, are made known to all Subscribers, including displaying such copyright notice in all instructions for use of the Packages and Services. "COPYRIGHT NOTICES: News Alert System, Sports Alert System, Weather Alert System and Quote Alert System Copyright 199__ Intelligent Information Incorporated. All rights reserved. Copyright 19__ Dow Jones & Company, Inc. All Rights Reserved. Distributed by Intelligent Information Incorporated under license from Dow Jones & Company, Inc. The headlines (Company News) contained in this Intelligent Information Service are the sole and exclusive property of Dow Jones & Company, Inc. and are protected by copyright. Such headlines may not be copied, republished or redistributed without the prior written consent of Dow Jones & Company, Inc." Reseller agrees to submit to III for its approval, all advertising or other promotional materials that reference any of the Products or any understanding or relationship contemplated under this Agreement no fewer than 5 days before proposed use. III's approval will not be unreasonably withheld, and shall be deemed granted unless III within such 5 day period notifies Reseller of the reasons for rejection and proposes reasonable changes which, if adopted, would render the request acceptable. 8. Resell acknowledges that III is required to provide certain information relating to the usage of the Products to the Information Providers. Such information may include: (a) the number of Subscribers registered in III Systems at midnight of each day; (b) the number and types of messages sent by III Systems; CONFIDENTIAL TREATMENT REQUESTED Brackets have been used to identify information which has been omitted from this exhibit pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission. 2 3 (c) the number and types of Subscriber requests registered in III Systems; and (d) any additional information as required by the Information Providers, from time-to-time. III warrants to Reseller that any such data pertaining to Subscriber identification will remain proprietary and confidential with the exception of satisfying III's reporting requirements to the Information Providers or their agents. (e) Reseller shall grant access to III, acting on its behalf or on behalf of the Information Providers, or their agents, to Reseller's business records related to III's Services, during regular business hours and upon three (3) days written notice to Reseller, for the purpose of verifying the extent of distribution of Products to Subscribers. Any such data shall remain the sole and exclusive property of Reseller and shall be used by III solely for the purpose of confirming Reseller's distribution of III's Services to determine the payment due by Reseller. Reseller agrees to maintain such records for not less than three (3) years. Without limiting III's other obligations under this Agreement, all information obtained by III in the course of inspecting Reseller's records shall be deemed Reseller's Confidential Information. III shall only provide each Information Provider and its agents with data sufficient to confirm the extent to which Reseller has supplied the Products of such Information Provider to Subscribers of Reseller, and shall not otherwise provide the same with any proprietary or confidential information of Reseller without Reseller's express written consent. 9. Reseller shall designate a customer representative to coordinate and review III's process of updating changes to Subscriber information, however, III will be responsible for receiving and effecting any additions, changes or deletions in Subscriber information within twenty four (24) hours of receipt of written requests from the Reseller. III will maintain a facsimile machine for receipt of such requests. 10. III AND THE INFORMATION PROVIDERS SHALL HAVE NO LIABILITY TO RESELLER FOR INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES WITH RESPECT TO THEIR OBLIGATIONS UNDER THIS AGREEMENT. IN ANY EVENT, THE LIABILITY OF III AND THE INFORMATION PROVIDERS TO RESELLER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT OF THREE MONTH'S PAYMENTS FOR SUBSCRIBERS RECEIVED BY III. THIS LIMITATION APPLIED TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. 11. Reseller shall not assign this Agreement without III's prior written consent. Notwithstanding the foregoing, Reseller shall be entitled without III's consent to assign or transfer its rights under this Agreement, to any person or business entity which is a parent, or subsidiary of Reseller, controls or is controlled by or under common control with Reseller, is merged or consolidated with Reseller or purchases more than fifty (50%) interest in the ownership or assets of Reseller to which this Agreement relates. 12. Either party may terminate this Agreement upon not less than thirty (30) days prior written notice to the other parties, i.: (A) The other party makes an assignment for the benefit of its creditors;or (B) Any petition shall be filed by or against such other party under any Section or Chapter of the Federal Bankruptcy Act as amended or as may be amended or any similar law or statute of the United States or any state thereof, which is not dismissed within thirty five (35) days after filing; or (C) Reseller shall have the right to terminate this Agreement by written notice to take effect immediately if III's Systems fail to perform or become defective, and such defect(s) or failure(s) cannot be remedied by III within ten (10) working days. 13. III shall have the right to terminate this Agreement by written notice to take effect immediately if Reseller fails to make any payment when due and does not cure such failure within ten (10) days of III's notice thereof and, effective upon such termination, III shall have no further obligation to perform under this Agreement. CONFIDENTIAL TREATMENT REQUESTED Brackets have been used to identify information which has been omitted from this exhibit pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission. 3 4 14. The mailing address of III is One Dock Street, Suite 500, Stamford, CT 06902. The mailing address of Reseller is specified below. All notices of default or failure of obligation hereunder shall be mailed to the other party first class, certified mail, return receipt requested to the address of III and Reseller set forth in this Agreement. Either Party may change the address for receipt of notice by providing written notice to the other party. 15. This Agreement shall be governed and construed in accordance with the laws of the State of New York. 16. III warrants with respect to each of the Services and Products it supplies pursuant to this Agreement that (i) such Service or Product shall be available to Reseller 99.99 percent of each day during the term of this Agreement (excluding scheduled downtime for maintenance); (ii) the content of such Service or Product shall be delivered to Reseller's computer data port as contemplated by Section 2 of this Agreement with 99.9 percent accuracy within two minutes of III's receipt of the content of the same from the applicable information Provider, provided any failure to do so is not caused by reseller's failure. III warrants that neither Services and Products, nor Reseller's marketing, distribution, transmission and use of the same as contemplated by this Agreement, will infringe any copyright, trademark or other intellectual property right; in fringe any right of privacy or publicity; or give rise to any claim of defamation or similar claims of any third party, including any Information Providers or their agents. 17. III represents that the terms set forth in this Agreement (including pricing) are as favorable to Reseller as the terms previously granted to any other provider of wireless telecommunications services operating in whole or part in the same service area with respect to which Reseller receives the Services or Products pursuant to this Agreement and shall be so for as long as the Services and Products and their bundling in Reseller's packages remains materially unchanged. III covenants and agrees that, in the event III extends any more favorable terms or conditions to any such other provider, III shall promptly notify Reseller of the same and, at Reseller's option, shall grant those same terms and conditions to Reseller effective as of the date such terms were extended to the other provider. 18. III agrees that any confidential or proprietary information disclosed by Reseller to III, including, without limitation, any information or data regarding the Subscribers such as their names, information regarding their parameters or their preferences, shall remain the sole and exclusive property of Reseller. III shall not disclose any such information, to any third party, including the Information Providers and their agents, except as otherwise provided in this Agreement, unless (i) Reseller consents to such disclosure in writing, and (ii) III has entered into an agreement with that party that requires them to keep such information confidential. IN WITNESS WHEREOF, the parties have hereto hereby execute this Agreement. - ------------------------------------- -------------------------------- ----- Authorized Reseller Signature Authorized Signature /s/ Harry Plonskier /s/ Stephen G. Maloney - ------------------------------------- ------------------------------------- Name Name HARRY PLONSKIER STEPHEN G. MALONEY - ------------------------------------- ------------------------------------- Title Title VICE PRESIDENT PRESIDENT - ------------------------------------- ------------------------------------- Date Date 11/8/96 11/8/96 - ------------------------------------- ------------------------------------- Reseller's Mailing Address 49 Old Bloomfield Road - ------------------------------------- Mountain Lakes, NJ 07046 - -------------------------------------