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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 21, 1999
METRICOM, INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 0-19903 77-0294597
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
980 UNIVERSITY AVENUE, LOS GATOS, CALIFORNIA 95030-2375
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code: (408) 399-8200
NOT APPLICABLE
(Former name or former address, if changed since last report)
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
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EXHIBIT NO. DESCRIPTION
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<S> <C>
99.1* Stock Purchase Agreement, dated as of June
20, 1999, among Metricom, Inc., a Delaware
corporation, MCI WorldCom, Inc., a Georgia
corporation, and Vulcan Ventures
Incorporated, a Washington corporation.
99.2* Press release, dated June 21, 1999.
99.3** Ricochet Reseller Agreement, dated as of
June 20, 1999, between Metricom, Inc., a
Delaware corporation, and MCI WorldCom,
Inc., a Georgia corporation.
</TABLE>
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*Filed as an exhibit to the Current Report on Form 8-K filed on July 9, 1999.
**Certain portions have been deleted pursuant to a confidential treatment
request.
2.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
METRICOM, INC.
Date: November 5, 1999 By: /s/ DALE W. MARQUART
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Dale W. Marquart
Vice President and General Counsel
3.
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EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION
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<S> <C>
99.1* Stock Purchase Agreement, dated as of June 20, 1999, among
Metricom, Inc., a Delaware corporation, MCI WorldCom, Inc., a
Georgia corporation, and Vulcan Ventures Incorporated, a
Washington corporation.
99.2* Press release, dated June 21, 1999.
99.3** Ricochet Reseller Agreement, dated as of June 20, 1999, between
Metricom, Inc., a Delaware corporation, and MCI WorldCom, Inc., a
Georgia corporation.
</TABLE>
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*Filed as an exhibit to the Current Report on Form 8-K filed on July 9, 1999.
**Certain portions have been deleted pursuant to a confidential treatment
request.
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***Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4)
200.83 and 240.24b-2
RICOCHET2 RESELLER AGREEMENT
THIS RICOCHET2 RESELLER AGREEMENT is made as of June 20, 1999 (the
"Effective Date") by and between METRICOM, INC., a Delaware corporation
("Metricom"), and MCI WORLDCOM, INC., a Georgia corporation ("MCI WorldCom")
(together, the "Parties").
RECITALS
WHEREAS, Metricom has developed a proprietary 128Kbps wireless, mobile
Internet access service that Metricom intends to market under the name Ricochet2
(the "Service") as more fully defined in the attached Exhibit A; and
WHEREAS, Metricom desires to appoint MCI WorldCom as a non-exclusive
reseller of the Service in the Territory (as hereinafter defined), and MCI
WorldCom wishes to accept such appointment, all pursuant to the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, promises,
representations and warranties set forth herein, the parties hereby agree as
follows:
AGREEMENT
1. DEFINITIONS. As used herein, the following terms have the meaning ascribed
below:
1.1 "AFFILIATE" means any entity controlling, controlled by, or under
common control with a party.
1.2 "AGREEMENT YEAR" means the twelve months from July 1 through June
30 of the following calendar year, provided that, if the date that the Service
is ready for commercial operation in all of the Phase I GSAs (as set forth on
Schedule 1.3) is later than July 1, 2000, then the "Agreement Year" means the
twelve months from the date that the Service is first ready for commercial
operation in all of the Phase I GSAs and each anniversary thereof. The Service
will be ready for commercial operation in a GSA when the network through which
Metricom will provide the Service covers [ *** ] of the population within the
Network Covered Area of the GSA.
1.3 "DEPLOYMENT SCHEDULE" means the schedule, attached hereto as
Schedule 1.3, according to which Metricom intends to build out the network
through which Metricom will provide the Service.
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1.4 "SUBSCRIBER DOCUMENTATION" means documentation prepared by
Metricom (in hard copy, electronic and/or online form) regarding the proper
installation, set-up and operation of the Service.
1.5 "FORECAST SUBSCRIBERS" means the volume of Total Net Cumulative MCI
WorldCom Subscribers in the respective Agreement Years projected by MCI WorldCom
as set forth in Schedule 1.5 hereto.
1.6 "GSA" means a city, together with nearby communities that have a
high degree of economic and social integration with that city, including
suburban areas generally considered part of the same metropolitan area. The area
of total square miles covered within each GSA will be at least as large as set
forth on Schedule 1.3. Specific municipalities and other areas included in the
GSAs are determined based upon measures of market demographics as determined
though market data from [ *** ] or similar organizations to maximize [ *** ] and
their [ *** ].
1.7 "GUARANTEED SUBSCRIBERS" means the minimum volume of Total Net
Cumulative MCI WorldCom Subscribers in the respective Agreement Years guaranteed
by MCI WorldCom as set forth in Schedule 1.7 hereto.
1.8 "MARKS" means trademarks, service marks, logos, and trade names,
whether or not registered.
1.9 "MCI WORLDCOM NON-COMPETE CUSTOMER" means any of [ *** ].
1.10 "MCI WORLDCOM RESELLER" has the meaning set forth in Section 3.2.
1.11 "MCI WORLDCOM SUBSCRIBER" means a Subscriber who has been
registered for the Service by MCI WorldCom or by any MCI WorldCom Reseller in
accordance with this Agreement.
1.12 "NETWORK COVERED AREA" means the portion of the GSA to be covered
by the network (including the square miles set forth in Schedule 1.3).
1.13 "PROMOTIONAL MATERIALS" means promotional publications, documents,
software, equipment or other marketing collateral prepared or disseminated by
Metricom in connection with its efforts to sell the Service to Subscribers.
1.14 "PURCHASE AGREEMENT" means the Series A Preferred Stock Purchase
Agreement between Metricom, MCI WorldCom and Vulcan Ventures Incorporated dated
of even date herewith.
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1.15 "REGIONAL ROAMING" means the ability to access and use the Service
anywhere in one of up to seven (7) geographic areas, defined by MCI WorldCom,
provided that no geographic area includes more than [ *** ] of the potential MCI
WorldCom Subscribers.
1.16 "SUBSCRIBER" means an end user of the Service.
1.17 "TERRITORY" means the fifty (50) states of the United States of
America.
1.18 "TOTAL NET CUMULATIVE MCI WORLDCOM SUBSCRIBERS" means the total
number of MCI WorldCom Subscribers registered in accordance with this Agreement
as of any given date, less the number of MCI WorldCom Subscribers that have
canceled their subscriptions to the Service prior to such date.
1.19 "UNRESTRICTED ROAMING" means the ability to access and use the
Service anywhere in the Territory where the Service is then-currently available.
2. RESALE OF THE SERVICE.
2.1 APPOINTMENT. Metricom hereby appoints MCI WorldCom, and MCI
WorldCom hereby accepts appointment, as Metricom's non-exclusive reseller of the
Service in the Territory. In connection therewith, MCI WorldCom will identify,
register, and provide first level sales support and first level customer support
to MCI WorldCom Subscribers in accordance with this Agreement.
2.2 NATURE OF APPOINTMENT. MCI WorldCom understands that, subject to
Section 2.3, this appointment is non-exclusive and that Metricom will establish
other means of distribution, appoint other distributors and resellers, and/or
use its own direct sales personnel to identify, register and support Subscribers
and to promote the Service. Similarly, Metricom understands that MCI WorldCom
may market, sell and distribute services similar or identical to the Service,
whether provided directly by MCI WorldCom or a third party.
2.3 LIMITED NON COMPETE. Notwithstanding the non-exclusive nature of
this Agreement, so long as MCI WorldCom has substantially performed all of its
material obligations hereunder, [ *** ]. The Parties will work together in good
faith to support MCI WorldCom's efforts to enter into an agreement with each of
the [ *** ] (who will become MCI WorldCom Resellers upon the execution of such
agreement).
2.4 METRICOM RIGHTS. Nothing in this Agreement will be construed in any
way to limit Metricom's right to do either or both of the following at any time
in Metricom's sole discretion: (a) reject or terminate the subscription of any
MCI WorldCom Subscriber that is in violation of the applicable terms of service
and (b) subject to Sections 2.3 and 5.7, enter into arrangements of any kind
whatsoever with other parties regarding the marketing and distribution of the
Service. Nothing in this Agreement will be construed in any way to limit MCI
WorldCom's right to enter into similar or dissimilar contracts with third
parties regarding similar services.
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2.5 ADDITIONAL SERVICES. Metricom may develop other services that
enhance or complement the Service. MCI WorldCom will have the option, but not
the obligation, to buy any additional services from Metricom at prices and terms
to be negotiated in good faith by the Parties; provided that all additional
services be subject to Section 5.7 herein (Most Favored Nation).
3. DUTIES OF MCI WORLDCOM.
MCI WorldCom will have the following duties during the term of this
Agreement:
3.1 PROMOTION AND SUBSCRIPTION. MCI WorldCom will use commercially
reasonable efforts to actively endorse, promote and sell the Service (including
subscription renewals) in the Territory and will devote personnel and resources
to effectively promote the Service as contemplated herein. MCI WorldCom will
identify and register MCI WorldCom Subscribers in accordance with this
Agreement. MCI WorldCom will not specifically direct promotional activities at
existing Subscribers so as to encourage them to discontinue their then-current
subscriptions and become MCI WorldCom Subscribers. MCI WorldCom will perform its
duties hereunder in a diligent and businesslike manner and will refrain from any
activity or action that would reasonably be expected to damage the reputation of
Metricom or the Service.
3.2 MCI WORLDCOM RESELLERS. MCI WorldCom may grant to third parties
(the "MCI WorldCom Resellers") the right to resell the Service to MCI WorldCom
Subscribers and to other resellers of the Service, which other resellers will
thereby become MCI WorldCom Resellers; provided that (a) MCI WorldCom will
retain the same obligations with regard to MCI WorldCom Subscribers registered
by MCI WorldCom Resellers that MCI WorldCom has with respect to MCI WorldCom
Subscribers registered by MCI WorldCom under this Agreement and (b) MCI WorldCom
or a MCI WorldCom Reseller will enter into a written agreement with each such
MCI WorldCom Reseller that provides at least as much protection of Metricom's
proprietary rights (including Metricom's intellectual property rights) as this
Agreement.
3.3 MATERIALS FOR SUBSCRIBERS.
(a) PROMOTIONAL MATERIALS. To supplement MCI WorldCom's sales
efforts, Metricom shall prepare and disseminate the Promotional Materials no
later than March 31, 2000. MCI WorldCom will have the option to distribute to
prospective Subscribers any Promotional Materials provided to Metricom by MCI
WorldCom. Metricom retains all right, title, and interest in and to all
Promotional Materials, and to all Metricom Marks contained in such materials.
All promotional materials prepared by Metricom will be consistent with industry
standards.
(b) SUBSCRIBER DOCUMENTATION. Metricom will prepare and
deliver to MCI WorldCom the Subscriber Documentation. MCI WorldCom will make
available the then-current version of the Subscriber Documentation (as
identified by Metricom) to all MCI WorldCom Subscribers. Metricom hereby grants
MCI WorldCom a nonexclusive, nontransferable, license without right of
sublicense in the Territory, to (i) reproduce, distribute and display the
Subscriber Documentation in connection with its obligations under this Agreement
and (ii) modify the Subscriber Documentation solely as necessary to incorporate
the Subscriber Documentation into documentation prepared by MCI WorldCom for MCI
WorldCom Subscribers ("MCI WorldCom
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Subscriber Documentation"), provided that MCI WorldCom does not alter or modify
any substantive provision of the Subscriber Documentation without the prior
written consent of Metricom. Notwithstanding the foregoing, MCI WorldCom and MCI
WorldCom Resellers may sublicense to MCI WorldCom Resellers a nonexclusive,
nontransferable, license in the Territory to reproduce, distribute and display
the Subscriber Documentation and MCI WorldCom Subscriber Documentation to MCI
WorldCom Subscribers. Metricom will retain all right, title, and interest in and
to all Subscriber Documentation, and all Marks contained in such materials
except to the extent that MCI WorldCom Subscriber Documentation contains any MCI
WorldCom Marks which shall remain the exclusive property of MCI WorldCom.
(c) RESTRICTIONS. Nothing herein will be construed as granting
to MCI WorldCom or any MCI WorldCom Reseller any proprietary rights (including
any intellectual property rights) to any Promotional Materials, Subscriber
Documentation or any Marks therein.
(d) TERMS OF SERVICE. MCI WorldCom will, and will obligate
each MCI WorldCom Reseller to, create terms of service applicable to each MCI
WorldCom Subscriber's use of the Service that includes terms substantially
similar to those set forth on Exhibit D, subject to changes mutually agreed to
by MCI WorldCom and Metricom.
3.4 BILLING. Metricom will not be obligated to provide customer-billing
services for MCI WorldCom Subscribers.
3.5 NO OTHER WARRANTIES. MCI WorldCom is not entitled to, and will not
without Metricom's prior express written consent, make any representations,
warranties or guarantees concerning the Service other than the warranties
provided by Metricom to MCI WorldCom hereunder.
3.6 CUSTOMER RELATIONSHIP; FIRST LEVEL SALES SUPPORT. MCI WorldCom or
the applicable MCI WorldCom Reseller will supply first level sales support to
MCI WorldCom Subscribers. Such first level sales support will consist of the
following: (a) responding to questions from MCI WorldCom Subscribers about the
features and prices of the Service; (b) introducing MCI WorldCom Subscribers to
new features of the Service as such features become available; and (c) providing
such other sales support as Metricom may, from time to time, reasonably request.
3.7 FIRST LEVEL CUSTOMER SUPPORT. MCI WorldCom or the applicable MCI
WorldCom Reseller will, in a diligent manner consistent with industry standards,
supply first level customer support, which shall be defined as all interaction
with MCI WorldCom Subscribers. If MCI WorldCom or the applicable MCI WorldCom
Reseller is not able to sufficiently address a MCI WorldCom Subscriber's support
request because of its technical nature, MCI WorldCom or the applicable MCI
WorldCom Reseller may request assistance from the Metricom customer service
department as provided in Section 4.4.
3.8 COMPLIANCE WITH LAWS. In performing its duties under this
Agreement, MCI WorldCom will at all times comply with all applicable federal,
state, and local laws and will not engage in any illegal or unethical practices.
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3.9 BRANDING. The Service shall be co-branded by MCI WorldCom (or MCI
WorldCom Resellers) and Metricom. MCI WorldCom and all MCI WorldCom Resellers
will display the Ricochet brand, in a manner visible to MCI WorldCom
Subscribers, on the modem connection window, in documentation distributed to any
MCI WorldCom Subscribers and on any sales support documents prepared by MCI
WorldCom or any MCI WorldCom Reseller, provided that MCI WorldCom's (or the
applicable MCI WorldCom Resellers') brand may be the primary brand visible to
MCI WorldCom Subscribers [ *** ]. MCI WorldCom will provide a quarterly forecast
of all such marketing and branding expenses. Metricom will work with MCI
WorldCom and each MCI WorldCom Reseller in good faith to ensure that MCI
WorldCom's or the applicable MCI WorldCom Resellers' brand has prominence in any
and all materials made available to MCI WorldCom Subscribers. As partial
consideration for this obligation of MCI WorldCom and MCI WorldCom Resellers,
Metricom agrees that it shall impose co-branding obligations on any other
resellers of the Service substantially similar to those imposed on MCI WorldCom
and MCI WorldCom Resellers herein.
4. DUTIES OF METRICOM.
4.1 SERVICE TO SUBSCRIBERS. Metricom will provide the Service to the
MCI WorldCom Subscribers in accordance with the service performance standards
set forth in Schedule 4.1. To the extent that Metricom does not maintain the
Quality of Service set forth in Schedule 4.1 for more than [ *** ] of the time
over the course of a calendar month, MCI WorldCom's obligations under Section
5.2(a) shall be reduced pro rata for the amount of time that the Quality of
Service commitment is not met during the relevant month. Metricom shall have
thirty days following written notice from MCI WorldCom to bring the Service back
into conformance with Schedule 4.1. If, following such thirty day period, the
Affected Percentage (as defined below) is less than [ *** ] Metricom's
obligations in Section 5.2 shall be reduced by a percentage equal to [ *** ]
during the period in which the Service is not in conformance with Schedule 4.1.
If, following such thirty day period, the Affected Percentage is [ *** ] or
greater, Metricom's shall have no obligations under Section 5.2 during the
period in which the Service is not in conformance with Schedule 4.1. If,
following such thirty day period, the Affected Percentage is greater than [ ***
] for any period of three consecutive calendar months or for any period of two
consecutive calendar months more than twice during any Agreement Year, MCI
WorldCom shall have the option, which expires after fifteen (15) days from the
date that such period ends, of terminating this Agreement under Section 8.3. For
the purposes of this Section 4.1, the "Affected Percentage" means the total
population in that portion of the GSA covered by the Service for which Metricom
has not satisfied its Quality of Service obligations under this Section 4.1,
divided by the total population of all GSAs in which the Service is offered.
Notwithstanding the foregoing, MCI WorldCom obligations under Section 5.1 will
continue during the term of this Agreement, regardless of whether Metricom is in
compliance with Schedule 4.1.
4.2 SECOND LEVEL SALES SUPPORT. Metricom will supply co-branded
advertising and promotion as set forth on Exhibit B in order to support MCI
WorldCom's sales force. In addition, Metricom will also provide the sales
support to MCI WorldCom's corporate direct sales teams as set forth on Exhibit
B.
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4.3 MODEM MANUFACTURERS.
(a) Metricom will negotiate in good faith with any modem
manufacturers identified by MCI WorldCom to enter into an appropriate
manufacturing agreement such that MCI WorldCom may acquire modems from such
manufacturer that are compatible with the Service. The terms and conditions of
any such agreement will be determined solely by the parties; provided that
Metricom will not charge any such manufacturer a royalty in excess of [ *** ] on
any modem sold to MCI WorldCom by such manufacturer.
(b) In addition, if Metricom elects to manufacture modems or
obtain modems from a third party, other than those modem manufacturers
identified by MCI WorldCom, Metricom shall offer those modems to MCI WorldCom
for MCI WorldCom's resale to MCI WorldCom Subscribers, either directly or
through MCI WorldCom Resellers, at Metricom's real and actual cost, including
handling.
4.4 SECOND AND THIRD LEVEL CUSTOMER SUPPORT. If MCI WorldCom or the
applicable MCI WorldCom Reseller is not able to adequately resolve a customer
support request, MCI WorldCom or the applicable MCI WorldCom Reseller may
request assistance from Metricom, which assistance will be provided directly to
MCI WorldCom or the applicable MCI WorldCom Reseller and not to any MCI WorldCom
Subscriber. MCI WorldCom or the applicable MCI WorldCom Reseller may only refer
a MCI WorldCom Subscriber directly to the Metricom customer service department
with Metricom's prior approval. Metricom will, in a diligent manner consistent
with industry standards, supply second and third level customer support to MCI
WorldCom and MCI WorldCom Resellers as set forth on Exhibit C.
4.5 NETWORK DEPLOYMENT.
(a) Metricom will deploy the network infrastructure necessary
to provide the Service substantially in accordance with the Deployment Schedule;
provided that the Deployment Schedule will be adjusted on a day-for-day basis
for any delay in the Closing Date under the Purchase Agreement beyond September
1, 1999.
(b) If the Deployment Schedule is delayed or Metricom's actual
deployment of the network infrastructure necessary to provide the Service occurs
more slowly than called for by the Deployment Schedule, the parties will work
together in good faith to modify MCI WorldCom's Guaranteed Subscribers
accordingly; provided that if such delay exceeds twelve (12) months, Section 5.2
will terminate and be of no further effect and MCI WorldCom shall have the
option to terminate this Agreement under Section 8.3.
(c) To the extent reasonably requested by Metricom, MCI
WorldCom will provide confirmation to Metricom's potential equipment and
services vendors of MCI WorldCom's commitment to the guaranteed volume of MCI
WorldCom Subscribers and to the Deployment Schedule.
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(d) Metricom will use its best efforts to locate its wireless
access points ("WAPs") at locations where MCI WorldCom owns fiber network
facilities consistent with Metricom's provision of services at a level
consistent with Schedule 4.1. A list of such facilities is provided under
Schedule 4.5, which list may be amended by MCI WorldCom from time to time.
4.6 COMPLIANCE WITH LAWS. In performing its duties under this
Agreement, Metricom will at all times comply with all applicable federal, state,
and local laws and will not engage in any illegal or unethical practices.
4.7 OSS INTERFACE. Metricom will develop and provide to MCI WorldCom an
Operational Support System ("OSS") interface that will permit MCI WorldCom to
add a customer, delete a customer and change customer service levels at least
ninety (90) days before commercial availability of the Service. Such interface
shall provide MCI WorldCom with the ability to perform mass adds, deletes and
changes electronically.
5. PRICING AND PAYMENTS.
5.1 INVOICING, PRICING, PAYMENTS. Metricom will invoice MCI WorldCom
monthly in arrears. The monthly fees for MCI WorldCom Subscribers, based on
[ *** ]. The monthly fee applicable to the MCI WorldCom Subscribers will be
based on the number of Total Net Cumulative MCI WorldCom Subscribers [ *** ].
The [ *** ] pricing set forth on Schedule 5.1 is not retroactive [ *** ]. MCI
WorldCom will make each monthly payment to Metricom (including applicable
Franchise Fees as described below) not later than the forty-fifth (45th)
calendar day after the receipt of the applicable invoice.
5.2 GUARANTEED MINIMUM PAYMENTS.
(a) Subject to Section 4.5(b), in the event that MCI
WorldCom's Total Net Cumulative MCI WorldCom Subscribers at the expiration of
each quarter does not exceed the Guaranteed Subscribers for that quarter, as set
forth in Schedule 1.7, Metricom shall invoice, and MCI WorldCom shall remit
payment of the monthly fees, for [ *** ].
(b) Metricom expects that the number of MCI WorldCom
Subscribers will be less than [ *** ] of the total number of Subscribers. If the
number of MCI WorldCom Subscribers during any Agreement Year exceeds [ *** ] of
the total number of Subscribers, then MCI WorldCom's payment obligations under
this Section 5.2 for such Agreement Year shall be the lesser of (i) the total
amount received by Metricom from Subscribers other than MCI WorldCom Subscribers
during such Agreement Year and (ii) the Guaranteed Subscriber revenue for the
applicable Agreement Year.
(c) To the extent that MCI WorldCom makes payments to Metricom
under Section 5.1 during an Agreement Year [ *** ] to Metricom under 5.2(a)
during such Agreement Year, MCI WorldCom's aggregate obligation under Section
5.2(a) during subsequent
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Agreement Years [ *** ]; provided that this Section 5.2(c) shall not affect MCI
WorldCom's obligations under Section 5.1 in any Agreement Year.
(d) To the extent that MCI WorldCom makes payments to Metricom
under Section 5.2(a) during an Agreement Year [ *** ] to Metricom under 5.1
during such Agreement Year, MCI WorldCom's aggregate obligation under Section
5.1 during subsequent Agreement Years [ *** ], provided that this Section 5.2(d)
shall not affect MCI WorldCom's obligations under Section 5.2(a) in any
Agreement Year.
(e) If the Agreement Year does not begin on July 1, then MCI
WorldCom's obligation in Year 5 under this Section 5.2 shall be pro-rated based
on the period from the first day of the Agreement Year through June 30, 2005.
5.3 PAYMENTS; REPORTS. Each Metricom invoice will be accompanied by a
report prepared by Metricom stating (a) the number of new MCI WorldCom
Subscribers registered [ *** ], (b) the number of MCI WorldCom Subscribers whose
subscriptions terminated [ *** ] (c) the number of Total Net Cumulative MCI
WorldCom Subscribers [ *** ], (d) the aggregate number of Total Net Cumulative
MCI WorldCom Subscribers that have registered for Restricted and for
Unrestricted Roaming and (e) any additional information necessary to support the
format of the MCI WorldCom invoice to any MCI WorldCom Reseller or MCI WorldCom
Subscriber.
5.4 LICENSES, EXPENSES, AND TAXES. Metricom will obtain and maintain,
at its own expense, right of way and similar licenses, registrations, permits,
and approvals needed for it to deploy its network. MCI WorldCom (or the
applicable MCI WorldCom Reseller) will obtain and maintain, at its own expense,
any additional licenses, registrations, permits, and approvals related to the
use of the Service by any MCI WorldCom Subscriber that Metricom cannot obtain
because it is not the contracting party with the Subscriber. Except as otherwise
set forth herein, both Parties will pay all marketing and advertising costs and
all expenses of its office, employees, and other activities under this
Agreement. MCI WorldCom will be solely responsible for payment of any and all
federal, state and local taxes arising from or imposed on the payments made by
MCI WorldCom Subscribers to MCI WorldCom under this Agreement.
5.5 ROAMING. The pricing set forth in Section 5.1 is applicable only to
each MCI WorldCom Subscriber's use of the Service within one pre-defined GSA
(based on the location designated by the MCI WorldCom Subscriber). Upon MCI
WorldCom's request, Metricom will upgrade or downgrade any MCI WorldCom
Subscriber's subscription to include either Regional Roaming or Unrestricted
Roaming. The additional fees will be [ *** ] for Regional Roaming and [ *** ]
for Unrestricted Roaming.
5.6 FRANCHISE FEES. MCI WorldCom acknowledges that Metricom, as a
function of its right-of-way agreements with certain municipalities, may owe
various municipalities franchise fees ("Franchise Fees") in connection with the
use of the Service by MCI WorldCom Subscribers. Metricom will inform MCI
WorldCom in advance, via a computer file, of the
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Franchise Fees applicable to MCI WorldCom Subscribers for each nine-digit zip
code in which Subscribers can access the Service. MCI WorldCom will collect from
the affected MCI WorldCom Subscribers and remit to Metricom the applicable
Franchise Fees. Metricom will remit the full amount of the collected Franchise
Fees to the appropriate jurisdictions. Metricom shall indemnify and hold
harmless MCI WorldCom and MCI WorldCom's Resellers from any third-party claims
based on Metricom's failure to remit such Franchise Fees to the appropriate
municipality.
5.7 MOST FAVORED NATION. So long as this Agreement remains in effect,
Metricom agrees that MCI WorldCom shall receive most favored terms with respect
to the pricing and performance of all services provided hereunder (considered in
the aggregate) as compared to any other Metricom reseller [ *** ]. If the Total
Net Cumulative MCI WorldCom Subscribers is [ *** ] than the number of Total Net
Cumulative Subscribers (including committed minimum Subscribers) obtained by
Metricom through other individual resellers (including any other investor in the
Company) offering substantially the same service, [ *** ]. If MCI WorldCom is
able to secure lower per unit pricing for [ *** ] from its obligations under
Section 5.2. For the purposes of this Section 5.7, a "Similar Service" means [
*** ].
5.8 ANNUAL PRICE REVIEW. The Parties will conduct annual meetings
during the term of this Agreement during which they will discuss whether the
parties should amend the pricing, guaranteed subscriber numbers or other terms
and conditions set forth in this Agreement.
6. COMMUNICATIONS SERVICES.
6.1 MCI WORLDCOM SUBSCRIBERS. In connection with communications traffic
generated by MCI WorldCom Subscribers, MCI WorldCom will provide carriage over
its communications network (including installation of any necessary
telecommunications lines or equipment) of the data traffic generated by MCI
WorldCom Subscribers in connection with the Service at no charge to Metricom for
the following communication segments:
WAP to Network Internet Facility ("NIF")
NIF to Internet
6.2 OTHER SUBSCRIBERS. MCI WorldCom will lease to Metricom, at MCI
WorldCom's competitive wholesale rates appropriate to Metricom's volume of use
and length of commitment, communications capacity for data traffic generated by
Subscribers other than MCI WorldCom Subscribers in connection with the Service.
The Parties will execute a separate agreement for the provision of such services
by MCI WorldCom.
7. CONFIDENTIALITY.
7.1 For the purposes of this Agreement, "Confidential Information"
means information about the disclosing party's business or activities that is
proprietary and confidential, which includes all business, financial, technical,
non-technical and other information of a party marked
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<PAGE> 11
or designated by such party as "confidential" or "proprietary"; or information
which, by the nature of the circumstances surrounding the disclosure, ought in
good faith to be treated as confidential. Confidential Information also includes
proprietary or confidential information of any third party that may disclose
such information to either party in the course of such party's business.
7.2 Confidential Information will not include information that (a) is
in or enters the public domain without breach of this Agreement, (b) the
receiving party lawfully receives from a third party without restriction on
disclosure and without breach of a nondisclosure obligation (c) is approved for
release by written authorization of the disclosing party (d) the receiving party
knew prior to receiving such information from the disclosing party or develops
independently without reference to the disclosing party's Confidential
Information as shown by the receiving party's files and records immediately
prior to the time of disclosure or (e) is independently developed by the
receiving party without reference to Confidential Information.
7.3 By virtue of this Agreement, each party hereto may disclose to the
other any information that is Confidential Information. Such Confidential
Information will be governed by the terms of this Section 7. Each party agrees
to use the Confidential Information of the other party solely to the extent
necessary to fulfill its obligations or exercise its rights hereunder, and not
for any other purpose.
7.4 Each party agrees (a) that it will disclose such Confidential
Information only to its employees, agents and contractors with a need to know
such Confidential Information and who have obligations of confidentiality not to
use such confidential Information for any purpose except as expressly permitted
hereunder, (b) that it will not disclose to any third party or use any
Confidential Information disclosed to it by the other except as expressly
permitted in this Agreement, and (c) that it will take all reasonable measures
to maintain the confidentiality of all Confidential Information of the other
party in its possession or control, which will in no event be less than the
measures it uses to maintain the confidentiality of its own information of
similar importance.
7.5 Notwithstanding the foregoing, each party may disclose Confidential
Information (a) to the extent required by a court of competent jurisdiction or
other governmental authority or otherwise as required by law, provided that the
receiving party uses reasonable efforts to provide the disclosing party with
prior notice of such obligation to disclose and reasonably assists in seeking a
protective order thereof or (b) on a "need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants, banks and other financing
sources and their advisors.
7.6 Within fifteen (15) days of receipt of a written request for the
return of Confidential Information, all disclosing party's Confidential
Information and all copies thereof in receiving party's possession or control
will be returned to disclosing party or destroyed by receiving party at
disclosing party's instruction. Receiving party will then certify the same in
writing and that no copies have been retained by receiving party, its employees,
agents or contractors.
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<PAGE> 12
7.7 Each party acknowledges that unauthorized disclosure or use of the
Confidential Information may cause irreparable harm to the other party for which
recovery of money damages would be inadequate, and the other party will
therefore be entitled to seek timely injunctive relief to protect its rights
under this Agreement, in addition to any and all remedies available at law.
7.8 The terms and conditions of this Agreement will be deemed to be the
Confidential Information of each party and will not be disclosed without the
written consent of the other party.
7.9 Any MCI WorldCom Subscriber information including, but not limited
to, names, addresses, ZIP codes, marketing plans, and competitive information,
provided by MCI WorldCom to Metricom for the purpose of compliance with local,
state or federal law or for any other purpose, shall be considered Confidential
and Proprietary to MCI WorldCom. Metricom will not use such MCI WorldCom
Subscriber information in any manner that is not expressly permitted under this
Agreement without the express written permission of an authorized MCI WorldCom
employee or in violation of applicable law or regulation. Notwithstanding the
foregoing, Metricom may use MCI WorldCom Subscriber information in aggregate
form for internal business purposes provided that Metricom does not use any
identifying personal information. Nothing in this Agreement shall be construed
to override or supersede requirements promulgated pursuant to the
Telecommunications Act of 1996 (the "Act") and lawfully in effect, with respect
to the treatment of Customer Proprietary Network Information (as defined in the
Act).
8. TERM AND TERMINATION.
8.1 INITIAL TERM AND RENEWAL. The term of the Agreement will commence
on the Effective Date and will continue in full force until June 30, 2005 unless
earlier terminated in accordance with Section 8.2 or 8.3.
8.2 TERMINATION FOR CAUSE BY METRICOM. Metricom will have the right to
terminate this Agreement upon written notice to MCI WorldCom if MCI WorldCom
breaches any of its material duties or obligations under provisions of this
Agreement and has not cured such breach within thirty (30) days after receipt of
written notice thereof.
8.3 TERMINATION FOR CAUSE BY MCI WORLDCOM. MCI WorldCom will have the
right to terminate this Agreement upon written notice to Metricom if Metricom
breaches any of its material duties or obligations under provisions of this
Agreement, and has not cured such breach within thirty (30) days after receipt
of written notice thereof.
9. EFFECT OF EXPIRATION OR TERMINATION.
9.1 END OF AUTHORITY; RETURN OF PROPERTY; END OF GUARANTEED SUBSCRIBER
COMMITMENT. Except as expressly provided herein, upon expiration or termination
of this Agreement for any reason, MCI WorldCom's authority to act as a reseller
on behalf of Metricom, to register Subscribers and to use the Marks described in
Section 10 will immediately cease. MCI WorldCom will promptly return to Metricom
all tangible copies of Promotional
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<PAGE> 13
Materials and Subscriber Documentation in MCI WorldCom's possession or control
and delete or erase any electronic copies, and certify in writing to Metricom
that it has fully complied with these requirements; provided, that MCI WorldCom
may retain one copy thereof for archival purposes. In additional MCI WorldCom's
Guaranteed Subscriber obligation shall immediately cease upon expiration or
termination.
9.2 MCI WORLDCOM SUBSCRIBERS. In the event that the term of a MCI
WorldCom Subscriber agreement with MCI WorldCom or a MCI WorldCom Reseller
extends beyond the expiration or termination of this Agreement, this Agreement
shall continue in effect to the extent required to provide Service to such MCI
WorldCom Subscriber(s) for a period of [ *** ] following the expiration or
termination of this Agreement or the expiration of the last MCI WorldCom
Subscriber agreement, whichever occurs first.
9.3 SURVIVAL. Notwithstanding anything to the contrary in this
Agreement, Sections 1, 5.1, 5.3, 5.4, 5.5, 5.6, 7, 9, 10 (except for the
trademark license granted therein), 11, 12, 13, 14 and 15 will survive
expiration or earlier termination of this Agreement.
10. TRADEMARKS.
During the term of this Agreement, MCI WorldCom will have a
non-transferable, non-exclusive right to use the Marks of Metricom, provided
that such use is solely in order to fulfill MCI WorldCom's obligations under
this Agreement. Except for the limited right to use Metricom's Marks as set
forth in this Section 10, nothing in this Agreement will be construed to grant
MCI WorldCom any right, title or interest in and to Metricom's Marks. MCI
WorldCom acknowledges Metricom's exclusive ownership of Metricom's Marks and
agrees not to take any action inconsistent with such ownership. MCI WorldCom
will not adopt, use or attempt to register any trademarks, service marks or
trade names that are confusingly similar to the Metricom Marks set forth on
Schedule 10. MCI WorldCom will comply with any written trademark policies or
guidelines concerning use of Metricom's Marks that Metricom furnishes to MCI
WorldCom from time to time. MCI WorldCom will provide to Metricom, at no cost to
Metricom and prior to any use, examples of MCI WorldCom's use of Metricom's
Marks and will obtain Metricom's written approval prior to such use, which
approval shall not be unreasonably withheld, conditioned or delayed. Metricom
shall not use MCI WorldCom's Marks for any reason without the express written
approval of MCI WorldCom.
11. INDEPENDENT CONTRACTORS.
MCI WorldCom and Metricom are independent contractors. Except in
connection with the acquisition of Subscribers by MCI WorldCom according to the
terms of this Agreement, neither party will have or represent that it has the
right, power or authority to bind, contract or commit the other party or to
create any obligation on behalf of the other party. This Agreement will not be
deemed to create any agency, partnership, or joint venture between the parties.
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12. INDEMNITY.
12.1 INDEMNIFICATION BY MCI WORLDCOM. MCI WorldCom will defend,
indemnify and hold harmless Metricom, its affiliates, and their respective
officers, directors, employees and agents from and against all claims,
liabilities and expenses asserted by third parties (including reasonable
attorneys expenses) to the extent arising out of (a) any breach by MCI WorldCom
of any warranty made by MCI WorldCom under this Agreement; (b) any statement,
representation or warranty made by MCI WorldCom relating to the Service that (i)
was not approved in advance and in writing by Metricom or or (ii) differs from
the representations and warranties made by Metricom in the then-current version
of the Subscriber Documentation; or (c) the negligence or intentional misconduct
of MCI WorldCom or any of its employees, agents or representatives. THIS SECTION
CONSTITUTES METRICOM'S SOLE AND EXCLUSIVE REMEDY, AND MCI WORLDCOM'S SOLE
OBLIGATION AND LIABILITY IN THE EVENT OF ANY THIRD PARTY CLAIM AGAINST METRICOM
OF THE TYPE LISTED IN THIS SECTION.
12.2 INDEMNIFICATION BY METRICOM. Metricom will defend, indemnify and
hold harmless MCI WorldCom, its affiliates and their respective officers,
directors, employees and agents from and against all claims, liabilities and
expenses asserted by third parties (including reasonable attorneys' fees) to the
extent arising out of (a) any breach by Metricom of any warranty made by
Metricom under this Agreement or regarding the Service, or (b) the negligence or
intentional misconduct of Metricom or any of its employees, agents or
representatives. THIS SECTION CONSTITUTES MCI WORLDCOM'S SOLE AND EXCLUSIVE
REMEDY, AND METRICOM'S SOLE OBLIGATION AND LIABILITY IN THE EVENT OF ANY THIRD
PARTY CLAIM AGAINST MCI WORLDCOM OF THE TYPE LISTED IN THIS SECTION.
12.3 The foregoing indemnities are conditioned on the indemnified party
(a) promptly notifying the indemnifying party in writing of such action or
claim, (b) giving the indemnifying party sole control of the defense thereof and
any related settlement negotiations, provided however, that any such settlement
which imposes injunctive or other equitable relief binding upon the indemnified
party will require the indemnified party's prior written consent (which consent
may be granted or withheld in the sole discretion of the indemnified party), and
(c) cooperating and, at indemnifying party's reasonable request and expense,
assisting in such defense.
12.4 Notwithstanding any other provision of this Agreement, the
indemnifying party's obligations under this Section will not extend to any third
party claims for consequential, indirect, exemplary, special or incidental
damages.
13. LIMITATION OF LIABILITY.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD
PARTY FOR ANY LOST PROFITS, LOSS OF DATA, OR OTHER CONSEQUENTIAL, INDIRECT,
SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS
AGREEMENT OR THE USE OR
14
<PAGE> 15
PERFORMANCE OF THE SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR
DAMAGES SUCH AS COMPENSATION OR DAMAGES FOR LOSS OF PRESENT OR PROSPECTIVE
PROFITS OR REVENUES, LOSS OF ACTUAL OR ANTICIPATED COMMISSIONS, OR EXPENDITURES
OR COMMITMENTS MADE IN CONNECTION WITH THE PERFORMANCE OF OBLIGATIONS UNDER THIS
AGREEMENT. EXCEPT IN CONNECTION WITH THE INDEMNIFICATION OBLIGATIONS SET FORTH
IN SECTION 12 AND MCI WORLDCOM'S PAYMENT OBLIGATIONS UNDER SECTION 5, EACH
PARTY'S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT,
WHETHER IN CONTRACT, IN TORT, UNDER A THEORY OF STRICT LIABILITY OR OTHERWISE,
WILL BE LIMITED TO THE AGGREGATE AMOUNT PAID TO METRICOM BY MCI WORLDCOM UNDER
THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE.
METRICOM'S SUPPLIERS WILL HAVE NO LIABILITY OF ANY NATURE TO MCI WORLDCOM UNDER
THIS AGREEMENT. EACH PARTY UNDERSTANDS AND AGREES THAT THE LIMITATIONS OF
LIABILITY IN THIS AGREEMENT ARE REASONABLE AND A FUNDAMENTAL PART OF THIS
AGREEMENT AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT SUCH
LIMITATIONS.
14. DISCLAIMER OF WARRANTIES.
METRICOM DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR
STATUTORY, REGARDING THE SERVICE, INCLUDING ANY AND ALL WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICE WILL
OPERATE ERROR-FREE OR WITHOUT INTERRUPTION.
15. GENERAL.
15.1 NOTICES. All notices and consents required or permitted under this
Agreement must be in writing; must be personally delivered or sent by registered
or certified mail (postage prepaid), by private courier, or by facsimile
(receipt confirmed and with a copy sent by registered or certified mail), in
each case to the appropriate party at the address set forth below; and will be
effective upon receipt. Each party may change its address and/or addressee for
receipt of notices by giving notice of the new address and/or addressee to the
other party.
IF TO METRICOM, TO: IF TO MCI WORLDCOM, TO:
Metricom, Inc. MCI WORLDCOM, Inc.
980 University Avenue 500 Clinton Center Drive
Los Gatos, CA 95032 Clinton, Mississippi 39056
Facsimile: (408) 399-8274 Facsimile: (601) 460-8615
Attention: Timothy A. Dreisbach, CEO Attention: Charles T. Cannada
Copy to: Copy to:
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<PAGE> 16
Kenneth L. Guernsey P. Bruce Borghardt, Esq.
Cooley Godward LLP MCI WORLDCOM, INC.
One Maritime Plaza 10777 Sunset Office Drive
20th Floor Suite 330
San Francisco, CA 94111-3580 St. Louis, MO 63127
Facsimile: (415) 951-3699 Facsimile: (314) 909-4101
15.2 DISPUTE RESOLUTION. If any claim or controversy arises with
respect to this Agreement or any of the subjects treated in this Agreement, each
party will appoint a single representative with senior managerial
responsibilities to meet and discuss in good faith the manner in which such
final decisions should be made. The location, format, frequency, duration and
conclusion of these discussions will be left to the discretion of the parties'
representatives. The representatives may agree to utilize alternative dispute
resolution procedures such as mediation to assist in such discussions. If the
parties' representatives have not resolved such dispute or agreed upon the final
decision to be made with respect to any such matter within fifteen (15) business
days following their initial meeting, either party will have the right to submit
the matter to binding, expedited arbitration in accordance with the arbitration
provisions set forth below by giving notice to the other party.
(a) If either party has elected to submit any matter to
binding, expedited arbitration, the matter will be resolved by arbitration in
the Commonwealth of Virginia in accordance with the Commercial Arbitration Rules
of the American Arbitration Association then in effect on the date that notice
of such election is given subject only to the following:
(i) Within ten (10) business days following the date
on which the party receiving notice of arbitration has received such notice,
each party will select an arbitrator who has not performed serviced for such
party, or Affiliate of such party, at any time within three (3) years prior to
the date of selection. The two arbitrators so selected will thereupon designate
a third arbitrator who has not performance services for either party at anytime
within three (3) years prior to the date of designation within ten (10) business
days following the date on which the later of the two arbitrators has been
selected. Each arbitrator must have experience in the communications industry or
other experience relevant to the resolution of the dispute.
(ii) Each party will have fifteen business days from
delivery of the arbitration notice to deliver a written argument and a proposed
resolution of the matter to be arbitrated to the arbitrators. Failure to deliver
a written argument as required will be a default and the defaulting party will
not be entitled to prevail in such arbitration. If both parties fail to deliver
a written argument as required, the arbitrators will be deemed to have been
discharged and the fees and expenses of the arbitrators (if any) will be borne
equally by both parties.
(iii) The arbitrators will render a decision by
majority vote on the matter to be arbitrated within fifteen (15) business days
following the last date on which written argument may be timely received
pursuant to Section 15.2(a)(ii). In any arbitration requiring a valuation of the
amount of costs or fixation of the amount of expenditures, the arbitrators will
be directed to choose a valuation or fixation of such amount as argued by either
party on each
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separate issue being arbitrated and will have no discretion to value costs of
fix expenditures at any other amounts.
(iv) The decision of the arbitrators will be binding
and conclusive and each party will be barred from challenging the decision
except on grounds of fraud. The decision will be enforceable by entry of
judgment upon the arbitrators' determination pursuant to Federal Arbitration
Act, 9 U.S.C. Section 1 et seq., in the applicable U.S. District Court. The
relief granted by the presiding arbitrators will not include equitable relief.
(v) Each party will bear the cost of the fees and
expenses of its selected arbitrator. The fees and expenses of the third
arbitrator designated by the other two arbitrators will be borne equally by the
parties. The primarily prevailing party in the arbitration will be entitled to
recover from the other party the reasonable fees and costs of outside counsel
retained by the primarily prevailing party to prepare and assist in its case and
represent it in the arbitration. Notwithstanding the foregoing, if neither party
primarily prevails in any such arbitration, then each party shall be responsible
for paying its own attorneys fees and costs.
15.3 SEVERABILITY. If any provision of this Agreement is held by a
court of law to be illegal, invalid, or unenforceable, the legality, validity,
and enforceability of the remaining provisions of this Agreement will not be
affected or impaired thereby and the illegal, invalid, or unenforceable
provision will be deemed modified such that it is legal, valid, and enforceable
and accomplishes the intention of the parties to the fullest extent possible.
15.4 WAIVERS. The failure of either party to enforce any provision of
this Agreement, unless waived in writing by such party, will not constitute a
waiver of that party's right to enforce that provision or any other provision of
this Agreement.
15.5 ASSIGNMENTS. Neither party may assign or transfer any of its
rights under this Agreement to any third party, by operation of law or
otherwise, without the prior written consent of the other party, provided
however, that MCI WorldCom may assign this Agreement to an Affiliate of equal or
greater financial strength as MCI WorldCom without consent but upon written
notice to Metricom. Any attempted assignment or transfer in violation of the
foregoing will be void. This Agreement will be binding upon, and inure to the
benefit of, the successors and permitted assigns of the parties.
15.6 CONSTRUCTION. There are no intended third party beneficiaries of
this Agreement. The headings of Sections and subsections of this Agreement are
for convenience and will not be construed to alter the meaning of any provision
of this Agreement. Unless otherwise expressly stated, the word "including" when
used in this Agreement means "including but not limited to."
15.7 ENTIRE AGREEMENT AND AMENDMENTS. This Agreement constitutes the
entire agreement between the parties and supersedes all previous written or oral
communications or understandings between them relating to the subject matter of
this Agreement. This Agreement may be amended only in writing signed by both
parties.
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15.8 COUNTERPARTS. This Agreement may be executed in identical
counterparts, each of which will be an original and which together will
constitute the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
METRICOM, INC. MCI WORLDCOM, INC.
By: By:
--------------------------------------- -------------------------------
Timothy A. Dreisbach John W. Sidgmore
President and Chief Executive Officer Vice-Chairman
SIGNATURE PAGE TO RESELLER AGREEMENT
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SCHEDULE 1.3
[ *** ]
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
COMMERCIALLY CUMULATIVE # OF GSA'S GSAS WHERE SERVICE
READY DATE WILL BE DEPLOYED
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
June 30, 2000 12 Phase I Cities
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
[ *** ]
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
PHASE I CITIES TOTAL SQUARE MILES COVERED
- --------------------------------------------------------------------------------------------------
<S> <C>
Atlanta, GA 853
- --------------------------------------------------------------------------------------------------
Baltimore, MA 470
- --------------------------------------------------------------------------------------------------
Chicago, IL 1,320
- --------------------------------------------------------------------------------------------------
Dallas/Ft.Worth, TX 1,358
- --------------------------------------------------------------------------------------------------
Houston, TX 1,120
- --------------------------------------------------------------------------------------------------
Los Angeles/Orange County, CA 2,300
- --------------------------------------------------------------------------------------------------
New York, NY/New Haven, CT 2,700
- --------------------------------------------------------------------------------------------------
Phoenix, AZ 872
- --------------------------------------------------------------------------------------------------
San Diego, CA 668
- --------------------------------------------------------------------------------------------------
San Francisco Bay Area 1,253
- --------------------------------------------------------------------------------------------------
Seattle, WA/Puget Sound 650
- --------------------------------------------------------------------------------------------------
Washington, D.C. 900
- --------------------------------------------------------------------------------------------------
</TABLE>
[ *** ]
For the purposes of this Schedule 1.3, the network will be commercially ready in
a GSA when the network through which Metricom will provide the Service covers
[ *** ].
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SCHEDULE 1.5
[ *** ]
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SCHEDULE 1.7
[ *** ]
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SCHEDULE 4.1
QUALITY OF SERVICE
- --------------------------------------------------------------------------------
1. PERFORMANCE
Peak Network Load Hour is defined [ *** ].
Fixed Point Performance: During the Peak Network Load Hour, MCI
WorldCom Subscribers will get [ *** ]. The network shall provide such
performance to [ *** ] of devices inside homes, offices and hotels
within the GSA that are above ground and [ *** ] the edge of the
building.
Mobile Performance: During the Peak Network Load Hour, a mobile
Subscriber moving [ *** ]. The network shall provide such performance
to [ *** ] within the GSA [ *** ].
Fixed Point Performance and Mobile Performance shall be no worse than
[ *** ].
2. NETWORK UPTIME
Network availability will be measured [ *** ]. Metricom shall provide
availability at least [ *** ] of the time.
3. NETWORK COVERAGE
The network will provide indoor [ *** ] in each GSA set forth on
Schedule 1.3, which shall [ *** ].
Metricom will consider the network in a GSA ready for commercial
operation when the network provides indoor [ *** ] within the Network
Covered Area of the GSA.
During the planning phase (prior to any deployment) of a GSA system to
be built, Metricom shall describe its planned coverage areas to MCI
WorldCom, and shall consider any MCI WorldCom comments on the proposed
deployment plan.
After deployment and prior to commencement of service, Metricom shall
perform measurements to confirm that the planned coverage area is
likely to be achieved in a loaded system. Techniques used to perform
these measurements and assumptions used to predict coverage shall be
described by Metricom to MCI WorldCom and Metricom shall consider any
comments on the techniques by MCI WorldCom.
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After commencement of service, Metricom shall conduct on-going
measurements and performance monitoring in order to verify the coverage
area of the system during periods of maximum load. Techniques and
assumptions used to verify the coverage area of the operational system
shall be described by Metricom to MCI WorldCom, and Metricom shall
consider MCI WorldCom's comments on such techniques.
If shortfalls in the planned coverage area [ *** ] are found in the
operational fully-loaded system, Metricom shall make modifications to
expand the operational coverage area so that it conforms to the planned
coverage area. Such work should be carried out on a commercially
reasonable schedule, which Metricom shall supply to MCI WorldCom.
4. NETWORK LATENCY
Metricom will provide an average latency of [ *** ], with a standard
deviation of [ *** ] during the Peak Network Load Hour.
[ *** ].
5. PERFORMANCE MEASUREMENT
Metricom agrees to work with MCI WorldCom to measure performance (and
report quarterly on latency, availability, and throughput rates) [ ***
].
6. EASE OF USE
On an ongoing basis, Metricom will provide installation wizards or
other tools to facilitate installation and configuration of the Service
and Ricochet modems such that Ricochet modems will be at least as easy
to install as comparable wireline modems. Normal user installations
shall take less than [ *** ]. Metricom will agree to [ *** ].
7. MODEMS
The initial Metricom modem shall be capable of being commercially
packaged in a device no larger than [ *** ].
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<PAGE> 24
SCHEDULE 4.5
MCI WORLDCOM FIBER NETWORK FACILITIES
- --------------------------------------------------------------------------------
[ *** ]
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SCHEDULE 5.1
[ *** ]
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SCHEDULE 10
TRADEMARKS
RICOCHET
<PAGE> 27
EXHIBIT A
RICOCHET2 SERVICE DESCRIPTION
Ricochet2 mobile data services provides users with the data speeds at 128 Kbps,
"always on" connections to the Internet and corporate LANs through wireless
modems, flat-rate "all-you-can-use" pricing and no metered roaming fees.
Ricochet lets users replicate their in-office experience remotely with secure
corporate LAN access to applications such as email, databases, fax servers, and
Intranet-based information.
<PAGE> 28
EXHIBIT B
SALES SUPPORT
ADVERTISING AND PROMOTION
Metricom will drive national brand awareness for Ricochet2, and provide an
initial push for local lead generation and awareness in conjunction with GSA
wave launches. Distribution partners will leverage Ricochet2 national brand
awareness and drive local lead generation after initial push. Metricom will
devote it's funding toward national advertising with public relations supporting
core media relations and service launch activity.
1999 costs will include strategy, planning, baseline operations, minor events
(press tours, right of way) and end of year production for 2000 launches.
o Given a national brand awareness push in the start of 2000, Metricom
expects to undergo a branding exercise to test naming, positioning,
messaging, attributes, benefit statements and image during the Summer of
1999. Metricom will retest/confirm branding messages prior to 2001
campaign.
o Metricom plans to launch national horizontal branding campaign [ *** ].
While the campaigns will be further defined based on a to be determined
media strategy, Metricom expects the mix to include [ *** ]. In 2001, we
have increased funding to cover a similar mix (to be adjusted based on
first-year success). Funding to also cover any measurement programs.
o Local awareness and initial lead generation will be supported by a [ ***
]. We expect the local campaigns to include advertising and direct mail
as follows (these programs will be further refined in conjunction with ad
agency):
[ *** ].
CORPORATE DIRECT SALES TEAMS
Metricom will place up to two employees within each GSA for the purpose of
supporting the sales efforts within the GSA. The employees will be trained as
either a product specialist or field sales executive.
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EXHIBIT C
CUSTOMER SUPPORT
SECOND LEVEL CUSTOMER SUPPORT INCLUDES THE FOLLOWING:
Support to MCI WorldCom in connection with customer support requests
from MCI WorldCom Subscribers to MCI WorldCom.
THIRD LEVEL CUSTOMER SUPPORT INCLUDES THE FOLLOWING:
Repair of the network in response to customer problems.
<PAGE> 30
EXHIBIT D
TERMS OF USE
1. GENERAL INFORMATION AND AGREEMENT. The Ricochet(R) Wireless Communications
Service ("Ricochet") is provided by Metricom, Inc.(R) ("Metricom"). By using
Ricochet or by installing and accepting the Ricochet software, Subscriber agrees
to these Terms of Use, which includes the license to use Ricochet, the purchase
or rental terms for the modem and a disclaimer of warranty. Further, Subscriber
agrees to use Ricochet and the modem in a manner consistent with these Terms of
Use and with any and all applicable laws and regulations.
2. LICENSE TO USE RICOCHET. Subject to these Terms of Use, Subscriber will have
a nonexclusive, nontransferable, nonassignable license to use Ricochet. The use
of any Ricochet software or documentation related thereto are licensed, not
sold, to Subscriber for Subscriber's use only under the terms of the license
contained herein, and Metricom reserves any rights not expressly granted to
Subscriber. For purposes hereof, "use" means to install Ricochet software in the
memory of a computer and to execute any Ricochet software in RAM to access
Ricochet.
3. EQUIPMENT AND SOFTWARE. Subscriber shall use the modem and Subscriber's own
equipment to access Ricochet. Subscriber is responsible for all charges for
Subscriber's use of any third party services via Ricochet, including any long
distance telephone transmission and any information or service provider charges
incurred by Subscriber during Subscriber's use of Ricochet that are not part of
the Ricochet service Subscriber has selected. METRICOM SPECIFICALLY DISCLAIMS
ANY RESPONSIBILITY FOR DETERMINING COMPATIBILITY BETWEEN EITHER RICOCHET OR THE
MODEM AND ANY EQUIPMENT OR SOFTWARE PROVIDED BY SUBSCRIBER AND IN NO WAY
WARRANTS THE CAPABILITIES OF ANY SUCH EQUIPMENT OR SOFTWARE IN THE USE OF
RICOCHET OR THE MODEM. METRICOM FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES
THAT THE MODEM AND RICOCHET, TOGETHER WITH SUBSCRIBER'S EQUIPMENT, WILL ACHIEVE
THE MAXIMUM NETWORK ACCESS SPEED SET FORTH IN ANY METRICOM DOCUMENTATION.
4. PROPRIETARY RIGHTS OF METRICOM. All right, title and interest in Ricochet and
the materials included therewith belong to Metricom, except to the extent that
third parties whose materials are made available via Ricochet possess copyright
or other proprietary interests in such materials. Subscriber will not, by virtue
of Subscriber's use of Ricochet, acquire any proprietary interest in Ricochet or
of any materials included therewith or accessed thereby.
5. TERRITORIAL LIMITATIONS. Ricochet may only be used in the United States,
Canada and Puerto Rico. Use outside of this territory is prohibited and may
violate the export control laws of the United States. Subscriber agrees not to
decompile, reverse engineer or disassemble any Ricochet software or the modem.
Subscriber agrees not to modify, adapt, translate, incorporate into other works,
rent, lease, loan, resell for profit, distribute, network or create derivative
works based upon Ricochet, any Ricochet software or any part thereof, the modem,
or any manuals or documentation related to Ricochet or the modem.
Notwithstanding the foregoing, Subscriber
<PAGE> 31
may create client-side applications for Subscriber's internal business purposes
that work in conjunction with Ricochet.
6. LIMITATIONS ON USE. Subscriber is solely responsible for Subscriber's
content. Metricom acts as a passive conduit for Subscriber's online distribution
and publication of Subscriber's information. However, Metricom reserves the
right to take any actions that Metricom deems necessary or desirable, including
without limitation immediately terminating Subscriber's access rights to
Ricochet, if Metricom believes that Subscriber's content or materials or use of
Ricochet, either alone or in connection with the products or services of others,
exceeds any of the limitations set in these Terms of Use. Such actions include
but are not limited to terminating Subscriber's Ricochet service.
Subscriber is solely responsible for the material Subscriber distributes or
voluntarily receives while using Ricochet. Any materials Subscriber distributes
or voluntarily receives through Subscriber's Ricochet service (a) shall not
infringe on any third party's copyright, patent, trademark, trade secret or
other proprietary rights or rights of publicity or privacy; (b) shall not
violate any law, statute, ordinance or regulation (including without limitation
the laws and regulations governing export control); (c) shall not be defamatory,
trade libelous, unlawfully threatening or unlawfully harassing; (d) shall not be
obscene or contain child pornography or, if otherwise pornographic or indecent,
shall be distributed only to people legally permitted to receive such files; (e)
shall not violate any laws regarding unfair competition, antidiscrimination or
false advertising, (f) shall not impersonate another person with fraudulent or
malicious intent, and (g) shall not contain any viruses, trojan horses, worms,
time bombs, cancelbots or other computer programming routines that are intended
to damage, detrimentally interfere with, surreptitiously intercept or
expropriate any system, data or personal information. Subscriber may not take
any action to the extent that such action that imposes an unreasonable or
disproportionately large load on our infrastructure, including, without
limitation, using Subscriber's account for web hosting, for remote application
server hosting, for streaming application server hosting or for file server
hosting.
7. LIMITATIONS ON NUMBER OF USERS AND ACCOUNT USAGE. Only one concurrent user
may use Subscriber's account.
8. LIMITED WARRANTY AND DISCLAIMER OF WARRANTY. Metricom offers no warranties,
express or implied, regarding the accuracy, sufficiency or suitability of
Ricochet, its software or other Ricochet materials provided to Subscriber.
Subscriber has the sole responsibility for inspecting and testing all services
to Subscriber's satisfaction before using them with important data. Metricom
makes no warranties or representations whatsoever regarding any goods or
services provided by any third parties pursuant to Subscriber's use of Ricochet
and Metricom shall not be a party to such transactions or be liable for any
costs or damages arising out of, either directly or indirectly, the actions or
inactions of such third parties. RICOCHET IS DISTRIBUTED ON AN "AS IS" BASIS
WITHOUT WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF
TITLE AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO SUBSCRIBER. THIS WARRANTY
GIVES SUBSCRIBER SPECIFIC LEGAL
<PAGE> 32
RIGHTS AND SUBSCRIBER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
9. LIMITATION OF LIABILITY.
(a) Without limiting the generality of the foregoing Section 8, Metricom shall
not be liable for any loss, injury, claim, liability or damage of any kind
resulting in any way from (i) Subscriber's use of any equipment in connection
with Ricochet, or (ii)the content of materials included with or accessed via use
of Ricochet.
(b) IN NO EVENT SHALL METRICOM BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR
ANY CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO
ANY LOST PROFITS, DATA, SAVINGS OR REVENUES, ARISING OUT OF OR IN CONNECTION
WITH THESE TERMS AND CONDITIONS, WHETHER UNDER TORT, CONTRACT OR OTHER THEORIES
OF RECOVERY, EVEN IF METRICOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT
APPLY TO SUBSCRIBER.
(c) In no event shall Metricom be liable to Subscriber or any third party for
any amount in excess of the subscription price actually paid by Subscriber for
the most recent year of service, whether under tort, contract, or other theories
of recovery.
10. INDEMNITY. Subscriber shall indemnify Metricom against liability as well as
against claims or demands, or damages, or costs or expenses (including but not
limited to reasonable attorneys' fees) arising out of or in connection with
Subscriber's breach of any limitation set forth in Sections 5 or 6 of these
Terms of Use, or breach of any other provision of these Terms of Use, or
Subscriber's violation of any duty imposed by law, or any such breach or
violation by any person to whom Subscriber has given Subscriber's password or
authorized or permitted to use Subscriber's Ricochet account in any way.
11. TERM. These Terms of Use shall be effective as of the date on which
Subscriber installs the Ricochet software and accepts these terms and
conditions. These Terms of Use shall remain effective until terminated as
provided herein.
12. TERMINATION. Metricom reserves the right, at its sole discretion,
immediately, without notice, and with or without cause to suspend or terminate
Subscriber's access to and use of Ricochet, to delete all information related to
Subscriber's Ricochet account upon any breach of the terms and conditions hereof
by Subscriber. Either Subscriber or Metricom may terminate Subscriber's use of
the Ricochet Service at any time without cause by sending notice to the other
party.
13. U.S. GOVERNMENT END USERS. Ricochet is a "commercial item," as that term is
defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and
"commercial computer software documentation," as such terms are used in 48
C.F.R. 12.212 and is provided to the U.S. Government only as a commercial end
item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R.
<PAGE> 33
227.7202-1 through 227.7202-4, all U.S. Government end users acquire Ricochet
with only those rights set forth herein.
14. MODIFICATION BY METRICOM. Upon delivery of e-mail or other written notice,
Metricom may modify these Terms of Use and its operating rules. Without prior
notice, Metricom, in its sole discretion, may discontinue or revise any or all
other aspects of Ricochet.
15. SEVERABILITY. Should any provision of these Terms of Use be held by a court
of law to be illegal, invalid or unenforceable, the legality, validity, and
enforceability of the remaining provisions of these Terms of Use shall not be
affected or impaired thereby.
16. NONWAIVER. The failure of any party to enforce any of these Terms of Use,
unless waived in writing, shall not constitute a waiver of that party's right to
enforce each of these Terms of Use.
17. ENTIRE AGREEMENT. These Terms of Use shall constitute the entire agreement
between Metricom and Subscriber with respect to the subject matter hereof. These
Terms of Use supersede all prior discussions, negotiations, or representations
by the parties.
