GROUND CONTROL Solution

RESELLER TERMS AND CONDITIONS
1. Definitions
1.1. “GROUND CONTROL Solution” means the (a) (i) equipment, hardware, circuit boards, components, assemblies (collectively,
the “Indoor Unit”), (ii) block-up converter (“BUC”) and (iii) Mobile VSAT or VSAT and non-penetrating mount (collectively, the
“Outdoor Unit”; the Indoor Unit, BUC and the Outdoor Unit, collectively referred to as “GROUND CONTROL CPE”) installed at
End User sites and used by End Users to access the Network Services, (b) software in object code form only, including any
modifications, updates, enhancements, upgrades and documentation thereto provided by GROUND CONTROL (“GROUND
CONTROL Equipment Software”) and that is used by End Users on or in connection with the GROUND CONTROL CPE, (c) related
Software Maintenance for the GROUND CONTROL CPE Software, and (d) any successor or related products to any of the foregoing
provided by GROUND CONTROL.
1.2. “GROUND CONTROL Network Services” means GROUND CONTROL or its designee’s provision of (a) shared,
TDM/TDMA satellite bandwidth communications services to Customers in accordance with this Agreement, (b) second line Solution
Support to Reseller (described in Section 4.16 below) and (c) the number of included internet protocol (“IP”) addresses noted on
Exhibit A attached hereto.
1.3. “Customer” means an end use customer (which may include Reseller) with whom Reseller contracts to provide the GROUND
CONTROL Solution.
1.4. “Monthly Recurring Fees” means the amounts specified as such on Exhibit A attached hereto with respect to the provisioning of
the GROUND CONTROL Solution.
1.5. “Commissioning Fee” means the amount specified on Exhibit A per GROUND CONTROL Solution unit commissioned on the
GROUND CONTROL Network hereunder.
1.6. “Software” means, as applicable, the GROUND CONTROL Solution or Manufacturer’s Software.
1.7. “Equipment” means, GROUND CONTROL CPE Equipment.
1.8. “Software Maintenance” means the provision of modifications, upgrades, updates, enhancements, new versions, fixes and/or
patches to the Software (“Updates”), excluding Solution Support (defined below).
1.9. “GROUND CONTROL Solution Support” means support for inquiries and knowledge-based questions from End Users and
Resellers relating to use, maintenance, or problem reporting in respect of the GROUND CONTROL Solution, excluding Software
Maintenance.
1.10. “Implementation Services” means the network design and technical implementation services provided by GROUND
CONTROL for the GROUND CONTROL Solution.
1.11.
“Primary Territory” means the territory specified on Exhibit A attached hereto.
1.12. “Reseller” means a third party who has entered into a written agreement with GROUND CONTROL for the purpose of
reselling GROUND CONTROL Network Services or the GROUND CONTROL Solution to End Users.
1.13. “End User” means a third party who has entered into a written agreement to receive GROUND CONTROL Network Services
via the GROUND CONTROL Solution or GROUND CONTROL CPE without GROUND CONTROL Network Services.
1.14. “NOC” means Network Operations Center.
1.15. “Effective Date” means the date IP Access countersigns this agreement, as specified under its signature on Page 1.
1.16. “iDirect UNLIMITED” means shared TDM/TDMA satellite communications bandwidth services to “Enterprise” type
Customers (i.e. small to medium sized business). Usage graphs should resemble burst traffic typical of an office environment.
1.17. “iDirect UNLIMITED with CIR” means shared TDM/TDMA satellite communications bandwidth services with CIR to
“Carrier” type Customers (i.e. Tier 2 and Tier 3 ISP’s, Universities, internet cafes, etc). Usage graphs could resemble solid usage up to
the CIR limit and bursts above the CIR available to the Reseller and or Customer.
1.18. “iDirect USAGE” means shared TDM/TDMA satellite communications bandwidth services for customers who will use the
service on a usage based pricing plan. The iDirect USAGE Service plan allows the customer to pass the allotted transfer allowance of
traffic through the GROUND CONTROL network specified on the GROUND CONTROL provided Quote/Contract. Customer will
Page 1 of 19
RSA120107
be charged for additional MB passed through the network per most updated available partner pricing document.
1.19. “Mobile Emergency Responder Service” shared TDM/TDMA satellite communications bandwidth services for customers who
will use the service as an Emergency Responder. The Mobile Emergency Responder Service plan allows the customer to use the
Service for 10 days per calendar month for the base monthly charge. Customer will be charged for additional usage beyond the 10
calendar days per month per Exhibit A. Usage graphs could resemble solid usage up to the CIR limit, if any, and bursts above the CIR
available to the Reseller and or Customer.
1.20. “Streaming Day” dedicated inbound carrier bandwidth from 12:00 am to 11:59 pm Pacific Standard Time. Streaming Days are
subject to availability. Reseller to send requests for a Streaming Day to assigned account manager. GROUND CONTROL will
confirm availability of Streaming Day. Cancellations within 72 hours of confirmed scheduled Streaming Day are non-refundable.
2.
Grant of Rights.
2.1. Appointment. Subject to the terms and conditions of this Agreement, GROUND CONTROL appoints Reseller, and Reseller
accepts such appointment, (i) as an independent, non-exclusive reseller to market, resell and sublicense the GROUND CONTROL
Solution solely to End Users located, taking delivery, and for use within the Primary Territory.
2.2. Software.
(a) Subject to the terms and conditions of this Agreement, GROUND CONTROL grants to Reseller, and Reseller accepts, a
nonexclusive, nontransferable license (i) to use, and to sublicense as set forth below, the Manufacturer’s Software, solely (1) on the
applicable unit of GROUND CONTROL provided equipment and (2) solely in accordance with the applicable Manufacturer’s
documentation; (ii) to use the Manufacturer’s Software solely (1) on the applicable GROUND CONTROL provided Equipment, (2)
for providing Network Services hereunder, and (3) in accordance with the applicable Manufacturer’s documentation; (iii) to make a
sufficient number of exact object code copies of the Manufacturer’s Software to satisfy Reseller’s obligations under Section 2.2(a)(iv);
(iv) to distribute, transmit and use the Manufacturer’s Software solely (1) to provide Software Maintenance and Solution Support to
End Users of the GROUND CONTROL Solution and (2) in accordance with the applicable Manufacturer’s documentation; and (v) to
distribute the Manufacturer’s Software to End Users solely for use on units of GROUND CONTROL provided Equipment and as
permitted pursuant to Section 2.1(i). Each distribution or license of the Manufacturer’s Software by Reseller shall be made pursuant to
an enforceable written agreement that is at least as protective of GROUND CONTROL and Manufacturer and its rights as the form set
forth in this agreement. Reseller will have no right to receive any source code with respect to any Software. Reseller may make a
reasonable number of archival copies of any Software that is not embedded on any Equipment, solely for disaster recovery purposes.
(b) This software license also includes any third party software forming part of the Software delivered hereunder, it being understood
that ownership to such third party software is with GROUND CONTROL and Manufacturer’s licensors but that the third party
licensor’s warranties, guarantees, liabilities and indemnities relating to such software do not extend to Reseller, any End User or any
Reseller, or any End User’s or any Reseller’s use thereof. Reseller, however, agrees to respect all license requirements of such third
party licensor as set out in the third party’s license conditions delivered with the GROUND CONTROL Solution to Reseller.
(c) GROUND CONTROL and Manufacturer and its licensors retain all right, title, and interest to the Software not expressly granted
herein.
2.3. Trademarks. GROUND CONTROL and Manufacturer hereby grants to Reseller a non-exclusive, limited license to use
GROUND CONTROL and Manufacturer’s trademarks, service marks, logos, trade names, and other branding features (“GROUND
CONTROL and Manufacturer’s Marks”) solely in connection with activities authorized by this Agreement. Reseller understands and
agrees that in Reseller’s marketing and advertising of the GROUND CONTROL Solution, Reseller shall either (a) if Reseller does not
private label the GROUND CONTROL Solution, prominently use and display the GROUND CONTROL and Manufacturer’s Marks
in the manner specified by GROUND CONTROL and Manufacturer, or (b) if Reseller does private label the GROUND CONTROL
Solution, conform to GROUND CONTROL and Manufacturer’s private label reselling guidelines that GROUND CONTROL and
Manufacturer may issue from time-to-time, including without limitation use of the “Powered by GROUND CONTROL and
Manufacturer” designation. Reseller shall only use the GROUND CONTROL and Manufacturer’s Marks in the form and manner as
communicated by GROUND CONTROL and the Manufacturer and in accordance with any written trademark usage guidelines
provided by GROUND CONTROL and Manufacturer’s. The use by Reseller of the GROUND CONTROL and Manufacturer’s
Marks in connection with this Agreement shall not create any right, title or interest, in or to the GROUND CONTROL and the
Manufacturer’s Marks in favor of Reseller and all goodwill associated with the use of the GROUND CONTROL and Manufacturer’s
Marks shall inure to the benefit of GROUND CONTROL and Manufacturer. Reseller shall not register, seek to register or contest the
validity of the GROUND CONTROL and Manufacturer’s Marks in any jurisdiction and shall not itself use any name, mark or
designation that is confusingly similar to any of the GROUND CONTROL and Manufacturer’s Marks. Reseller agrees to use
reasonable efforts to protect GROUND CONTROL and Manufacturer’s proprietary rights and to cooperate, without charge, in
GROUND CONTROL and Manufacturer’s efforts to protect its proprietary rights. Reseller agrees to notify GROUND CONTROL
and Manufacturer of any known or suspected violation, infringement or misappropriation of GROUND CONTROL and
Page 2 of 19
RSA120107
Manufacturer’s proprietary rights, which comes to Reseller’s attention.
2.4. Limited Non-exclusivity. Nothing contained in this Agreement shall be construed as limiting in any manner: (a) either party’s
development, marketing or distribution activities for the provision of the same or similar products or services as provided hereunder,
subject to Section 10 and this Section 2.4; or (b) GROUND CONTROL’s appointment of any partners, dealers, distributors, licensees,
service providers, resellers or agents within or outside of the Primary Territory. Reseller understands and agrees that it shall not
receive any exclusive territory hereunder.
3.
Restrictions.
3.1. GROUND CONTROL Solution. GROUND CONTROL and Manufacturer or its licensors shall at all times retain all right, title
and interest in and to all intellectual property rights contained in the GROUND CONTROL Solution, including without limitation the
Software and the GROUND CONTROL and Manufacturer’s Marks.
3.2. Restrictions. Reseller agrees that the GROUND CONTROL Solution unit(s) and Software purchased and licensed hereunder
shall only be (a) used by Reseller internally only for the purposes of (i) training Reseller’s sales and support organization or
demonstrating the GROUND CONTROL Solution to prospective End Users in accordance with documentation provided by
GROUND CONTROL and Manufacturer and (ii) providing Network Services hereunder, (b) used by Reseller to obtain local
certifications, homologations or licenses as required by this Agreement, or (c) with regard to the GROUND CONTROL Solution only,
resold as a standalone product to End Users.
3.3. Use Restrictions. Reseller shall not, and shall not allow End Users or third parties to, directly or indirectly: (a) modify, translate,
create derivative works of or based on any Equipment or Software, except as expressly authorized by GROUND CONTROL and
Manufacturer; (b) delete, alter, add to or fail to reproduce in and on any Equipment or Software any GROUND CONTROL and
Manufacturer’s Mark, any copyright or other notices appearing in or on any hardware, software or service provided by GROUND
CONTROL and Manufacturer or which may be required by GROUND CONTROL and Manufacturer at any time in accordance with
this Agreement; (c) reverse assemble, decompile, reverse engineer or otherwise attempt to derive source code or object code or the
underlying ideas, algorithms, structure or organization of the Equipment, or components thereof or the Software, except to the extent
that this provision is expressly prohibited by applicable statutory law; (d) disseminate performance information or analysis (including,
without limitation, benchmarks) from any source relating to the GROUND CONTROL Solution; (e) use the Manufacturer’s Software
on or in connection with any equipment not provided by GROUND CONTROL and Manufacturer; or (f) reproduce or copy Software
in whole or in part, except for archival purposes or as expressly permitted herein or otherwise approved in writing by GROUND
CONTROL and Manufacturer.
4.
Responsibilities.
4.1. Reseller’s Purchase of GROUND CONTROL Solution. Upon execution of this agreement, Reseller shall acquire at the price set
forth on Exhibit A attached hereto, at least one (1) unit of the GROUND CONTROL Solution for use by Reseller as specified in
Sections 3.2(a)(i) and 3.2(b).
4.2. Marketing. Reseller will use its best efforts to promote and market (i) the sale of GROUND CONTROL Solution within the
Primary Territory and (ii) the Network Services and End Users within the Primary Territory. Such promotion and marketing shall
include without limitation, general advertising, local internet advertising, direct response marketing, and attending local exhibitions,
conferences and the like. All such marketing and advertising shall be truthful, accurate and conducted in a manner that reinforces the
standards of quality and integrity of GROUND CONTROL and Manufacturer, the GROUND CONTROL Solution, and Network
Services. Reseller shall not make any claims in its advertising which exceed or contradict claims made by GROUND CONTROL and
Manufacturer in its printed materials. Prior to use, Reseller shall provide to personnel specified by GROUND CONTROL copies of
all advertising and marketing materials proposed to be used by Reseller, GROUND CONTROL shall promptly approve or reject any
such proposed materials at its sole discretion. Upon notice to Reseller by GROUND CONTROL, Reseller shall immediately remove
and cease use of all advertising and marketing materials determined by GROUND CONTROL to be inappropriate. Reseller shall be
solely responsible for all advertising and marketing to the extent that it incorporates materials not provided by GROUND CONTROL
and Manufacturer and Reseller shall indemnify GROUND CONTROL and Manufacturer and its directors, officers, agents, network
service providers and employees from and against any and all violations of this provision.
4.3. Marketing Meetings. The parties agree to meet no less frequently than once per calendar year during the Term (defined in
Section 12.1) to review issues relating to this Agreement, including, but not limited to, sales forecasts, sales strategies, Agreement
administration, and Reseller and End User satisfaction.
4.4. Reseller Representations. Reseller will not make, and will be responsible and liable for, any warranty regarding the GROUND
CONTROL Solution, or Network Services that exceeds the warranties granted by GROUND CONTROL and Manufacturer herein.
Reseller shall indemnify GROUND CONTROL and Manufacturer and its directors, officers, agents, network service operators and
employees from and against any and all violations of this provision.
Page 3 of 19
RSA120107
4.5. Market Reports. Reseller will advise GROUND CONTROL concerning any market information that comes to Reseller's attention
regarding GROUND CONTROL, the GROUND CONTROL Solution, GROUND CONTROL’s market position, or the continued
competitiveness of the GROUND CONTROL Solution in the marketplace. Reseller will confer with GROUND CONTROL from
time-to-time, at GROUND CONTROL’s request, on matters relating to market conditions, distribution forecasting, and product
planning.
4.6. GROUND CONTROL Review. For at least two (2) years after termination of this Agreement, Reseller will maintain its records,
contracts, and accounts relating to distribution of the GROUND CONTROL Solution, and will permit examination thereof by
authorized representatives of GROUND CONTROL at all reasonable times.
4.7. International Orders. For all shipments to Reseller facilities outside of the United States, including shipments in respect of any
warranty or repair services, Reseller will be solely responsible for (a) importing, including without limitation, obtaining any licenses
required, the GROUND CONTROL Solution, and Software into such foreign country; (b) clearing the GROUND CONTROL
Solution, and Software through local customs upon arrival to such foreign country; (c) paying all customs duties, taxes and other
charges assessed on importation into such foreign country; and (d) complying with all United States export requirements, regulations,
embargoes and restrictions in accordance with Section 13.5 below.
4.8. Homologation and Certification. Prior to importing, licensing or selling any GROUND CONTROL Solution in any country or
jurisdiction, Reseller will obtain or otherwise satisfy, at Reseller’s sole expense, required homologations and certifications for use of
(i) the GROUND CONTROL Solution, and (ii) the Network Services. GROUND CONTROL shall provide Reseller with reasonable
assistance in obtaining such homologations and certifications.
4.9. Licensing. Prior to using or allowing the use of the GROUND CONTROL Solution in any country or jurisdiction, Reseller will
obtain or otherwise satisfy, at Reseller’s sole expense, all licenses required for use or operation of the GROUND CONTROL Solution.
GROUND CONTROL shall provide Reseller with reasonable assistance in obtaining such licenses.
4.10.
Local Rules. Reseller and Customer shall comply with any restrictions or conditions imposed by applicable authorities on (a)
Customer’s use of GROUND CONTROL Network Services in any country in which Customers use the GROUND CONTROL
Network Services, and (b) Customer’s use of the GROUND CONTROL Network Services between or among countries. Customer
shall not use the GROUND CONTROL Network Services in violation of any applicable law, rule, regulation or court order.
4.11.
Inventory. Reseller agrees to purchase and stock a comprehensive inventory of GROUND CONTROL Solution spare parts
sufficient to timely meet its maintenance obligations hereunder, which inventory and spares shall be priced at GROUND CONTROL’s
then-current prices.
4.12.
Training. Reseller’s personnel shall attend reasonable initial and on-going training in the marketing, installation,
implementation, maintenance, use and support of the GROUND CONTROL Solution and providing GROUND CONTROL Solution
Support and Support. Initial training shall occur within thirty (30) days after the Effective Date, or a date to which the parties may
mutually agree. The Commissioning Training Course will be at the GROUND CONTROL’s current rates, as agreed upon between
GROUND CONTROL and Reseller. GROUND CONTROL will generally conduct its training sessions at GROUND CONTROL’s
technical facilities in Petaluma, California, but at GROUND CONTROL discretion or at Reseller’s request, GROUND CONTROL
may choose to conduct this training at the Reseller’s facilities. If training is provided by GROUND CONTROL at facilities other than
GROUND CONTROL’s designated facilities, Reseller shall be responsible for GROUND CONTROL’s then-current standard training
rates plus reasonable travel, lodging and related expenses of GROUND CONTROL personnel, which will be invoiced at cost plus a
fifteen percent (15%) administrative fee. Reseller shall be responsible for all travel, lodging and related expenses of Reseller
personnel that attend such training.
4.13.
Professional Services. Upon the reasonable request of Reseller, GROUND CONTROL shall provide professional services as
mutually agreed upon by the parties in writing. All professional services shall be delivered in the English language. Such services
shall be provided at GROUND CONTROL’s current rates plus reasonable travel expenses, which will be invoiced at cost plus a
fifteen percent (15%) administrative fee.
4.14.
Installation.
(a) Until Reseller has completed the training as specified in section 4.12, GROUND CONTROL or its designees shall use reasonable
commercial efforts to provide installation services for the GROUND CONTROL Solution directly to Reseller’s Customers. The
installation fee will be agreed upon between Reseller and GROUND CONTROL for each standard installation of the GROUND
CONTROL Solution. In addition to the Installation Fee for each unit, Reseller shall reimburse GROUND CONTROL for (a) any
additional fees for non-standard installations, which will be invoiced at GROUND CONTROL’s then current rates and (b) reasonable
travel and other expenses incurred by GROUND CONTROL or GROUND CONTROL’s designees related to the installation of the
GROUND CONTROL Solution, which will be billed at cost plus a fifteen percent (15%) administrative fee. GROUND CONTROL
shall invoice Reseller and Reseller shall pay GROUND CONTROL, for the Installation Fees(s) and any other expenses in accordance
Page 4 of 19
RSA120107
with Exhibit A attached hereto.
(b) As soon as Reseller has met the training requirements set forth in paragraph 4.12, Reseller shall offer installation services for the
GROUND CONTROL Solution, through its certified employees or subcontractors. All such installation services shall be performed
by Reseller’s employees or subcontractors in accordance with GROUND CONTROL and Manufacturer’s latest installation standards
as provided by GROUND CONTROL and Manufacturer in hard copy. Reseller shall not permit any employee or subcontractor that is
not certified by GROUND CONTROL, Manufacturer or a certified trainer to install the GROUND CONTROL Solution for any End
User. Manufacturer may update such installation standards from time-to-time, including by posting amended standards on the
resellers portion of Manufacturer’s web site; Reseller shall be responsible for reviewing such web site for any such updates in a timely
manner.
4.15.
First Line Support. Reseller shall provide first line Solution Support in accordance with local market requirements. When
Reseller is providing Solution Support, Reseller shall direct requests for Solution Support in respect of connectivity or Software
Maintenance to the applicable network services provider, which may be GROUND CONTROL. Under no circumstances shall
GROUND CONTROL be responsible for Solution Support of the GROUND CONTROL Solution directly to Customers, except to the
extent required if GROUND CONTROL is providing GROUND CONTROL Network Services to such Customer. Under no
circumstances is GROUND CONTROL responsible for providing Software Maintenance to Customers, except for providing such
services to Customer in its capacity as a licensee of the Software or to any Customer if GROUND CONTROL is providing GROUND
CONTROL Network Services to such Customer.
4.16.
GROUND CONTROL Solution Support. Provided that Reseller is in compliance with this Agreement and has paid all
applicable fees, GROUND CONTROL shall use commercially reasonable efforts to provide access to the GROUND CONTROL
NOC for (a) inquiries regarding Reseller problems with the, (b) support for inquiries and knowledge-based questions from Reseller
support personnel relating to the use, maintenance or problem reporting in respect of the GROUND CONTROL Solution and, (c) third
line GROUND CONTROL Solution Support to End Users and Resellers for the GROUND CONTROL Solution. Reseller may only
direct GROUND CONTROL Solution Support inquiries to GROUND CONTROL from Resellers or End Users in the event that
Reseller cannot resolve the issue after utilizing reasonable efforts, including without limitation, review of Manufacturer’s web site and
placing a support call to GROUND CONTROL’s NOC to request that the issue be handled by GROUND CONTROL. Except for
support inquiries accepted by GROUND CONTROL, under no circumstances shall GROUND CONTROL be responsible for
GROUND CONTROL Solution Support directly to End Users unless reseller is acting as an agent and the End User contracts directly
with GROUND CONTROL. Reseller may contact GROUND CONTROL’s NOC twenty-four (24) hours per day, seven (7) days per
week, via telephone, facsimile or e-mail, and GROUND CONTROL will use commercially reasonable efforts to respond to such
inquiries within fifteen (15) minutes following receipt of such inquiry by either (i) telephone or (ii) the same means by which the
inquiry was submitted. All such support shall be delivered in English. GROUND CONTROL will provide Reseller with detailed
activity reports on a monthly basis that include trouble ticket numbers, dates opened and closed, trouble type codes and resolution
codes. GROUND CONTROL shall not have any obligation to provide such services unless Reseller has paid all applicable fees
specified in this Agreement.
4.17.
GROUND CONTROL Software Maintenance Obligations. Provided that Reseller is in compliance with this Agreement,
GROUND CONTROL shall use commercially reasonable efforts to provide Software Maintenance by sending Updates to Reseller.
4.18.
Problem Reporting; Improvements. Reseller shall keep GROUND CONTROL informed as to any problems encountered
with the GROUND CONTROL Solution and any resolutions arrived at for those problems, and to communicate promptly to
GROUND CONTROL any and all modifications, design changes or improvements of the GROUND CONTROL Solution suggested
by Reseller or Resellers, End Users, employees or agents. Reseller further agrees (a) that GROUND CONTROL and Manufacturer
shall have and Reseller hereby does assign to GROUND CONTROL and Manufacturer any and all right, title, and interest in and to
any such suggested modifications, design changes, or improvements of the GROUND CONTROL Solution, without the payment of
any additional consideration therefore either to Reseller or its Resellers, End Users, employees, or agents and (b) that Reseller will
fully cooperate with GROUND CONTROL and Manufacturer in this regard.
4.19.
Documentation. GROUND CONTROL agrees to provide to Reseller at no additional charge its standard package of
documentation, in electronic form, related to the use, maintenance, and installation of the GROUND CONTROL Solution. In the
event that such documentation is modified during the Term, GROUND CONTROL agrees to provide to Reseller at no additional
charge all such modifications in electronic form. All materials provided by GROUND CONTROL to Reseller shall be in the English
language. Reseller will be responsible for the translation, printing, reproduction, packaging and distribution of all end-user
documentation and updates to its Resellers and End Users, and Reseller will be responsible for incorporating all documentation
modifications supplied by GROUND CONTROL. Reseller may make sufficient printouts and copies of such documentation to satisfy
its obligations hereunder. All translation of such documentation provided by GROUND CONTROL will be at Reseller's sole expense.
All such translations not supplied by GROUND CONTROL relating to the GROUND CONTROL Solution and services will be
submitted to GROUND CONTROL for approval before publication or dissemination, and GROUND CONTROL will hold the
copyright therein.
Page 5 of 19
RSA120107
4.20 Consulting Services. Upon the reasonable request of Reseller, GROUND CONTROL shall provide consulting services as may
be mutually agreed upon by the parties in writing. Such services shall be provided on a time and materials basis at GROUND
CONTROL’s then-current consulting fees, plus reasonable expenses, which will be invoiced at cost plus a fifteen percent (15%)
administrative fee.
4.21 End User Information. Reseller agrees to provide GROUND CONTROL with the most current End User contact information
including accounting and technical point of contact, address of main office and of GROUND CONTROL CPE location and
phone/email contacts for all associated parties. GROUND CONTROL will notify Reseller of any reason why direct contact is to be
made to End User.
4.22 Reseller Agent Option. Reseller may elect to designate an End User as a direct GROUND CONTROL customer. GROUND
CONTROL will administer all billing and customer support functions as well as obtain signed contracts and/or purchase orders.
Commission and or residuals may be due reseller as outlined in most recent pricing discount schedule.
5.
GROUND CONTROL Network Services.
5.1 Service. Upon payment of all the applicable fees and subject to the terms and conditions herein, GROUND CONTROL or its
designees shall use reasonable commercial efforts to provide shared TDM/TDMA satellite communications bandwidth services to
Customers, (a) for the Customer Sites and (b) at the data rates, each as specified in the Customer Order Form.
5.2 Customer Contracts. Reseller shall contract directly with Customers for the provision of GROUND CONTROL Network Services,
and shall be solely responsible for the management of the Customer relationship and collecting all fees from Customers.
5.3 Policies. Reseller shall, and shall ensure that Customers shall, comply with the usage polices that GROUND CONTROL develops
and makes available to the Reseller from time-to-time (“Policies”). Reseller agrees that it and its Customers will only have access to
the GROUND CONTROL Network Services as provided in the Policies and this Agreement. GROUND CONTROL or its designees
in their discretion without notice may change the Policies from time-to-time.
5.4 Customer Content. Each Customer is solely responsible for the content and data of its transmissions, including without limitation
the legality thereof, and shall indemnify GROUND CONTROL and its directors, officers, agents, network service providers and
employees from and against any and all violations of this provision.
5.5 Rights Granted. Reseller acknowledges that this Agreement only grants through Reseller to Customers who have contracted with
Reseller for the provision of GROUND CONTROL Network Services a right to use the GROUND CONTROL Network Services, and
that neither Reseller nor Customer have been granted any other rights or real property or other interests in GROUND CONTROL’s or
its designee’s facilities.
5.6 Shared Upload and Download Data Rates. Reseller and/or the applicable Customer shall only be authorized to use the shared
bandwidth for the type of Service contracted for, as described in Sections 1.16, 1.17, 1.18, 1.19, 1.20 or 1.21, and have paid the
applicable fees. If at any time GROUND CONTROL determines that the Reseller’s and/or the applicable Customer’s usage of the
GROUND CONTROL Network Services is not appropriate to the product purchased in Sections 1.16, 1.17, 1.18, 1.19, 1.20 or 1.21
GROUND CONTROL may notify Reseller in writing to change Service Plans and adjust the fees due to GROUND CONTROL
hereunder.
5.7 Modification of Service. GROUND CONTROL reserves the right to modify or discontinue any aspect of the GROUND
CONTROL Network Services at any time by giving thirty (30) days notice to Reseller, provided that GROUND CONTROL shall
continue to provide the GROUND CONTROL Network Services as set forth in any accepted Customer Order Form prior to the
effective date of such modification or discontinuation through to the next renewal or earlier termination of such Customer Order Form.
5.8 Access by GROUND CONTROL. In order to receive GROUND CONTROL Network Services hereunder, Customer must
provide to GROUND CONTROL or its designee continuous remote access to the GROUND CONTROL Solution; if such access is
not provided, then Customer shall not be entitled to receive, and GROUND CONTROL and its designee shall have no obligation to
provide such services. Customer shall also provide to GROUND CONTROL, Reseller, or its designees, physical access to the
Equipment for performance of services hereunder, at reasonable times and upon reasonable advanced notice to Customer under the
circumstances.
5.9 Service Levels. Subject to the terms and conditions of this Agreement, GROUND CONTROL will perform the GROUND
Page 6 of 19
RSA120107
CONTROL Network Services in accordance with the service levels specified on Exhibit B attached hereto.
6.
Ordering and Purchase.
6.1. Minimum Commitment. In order to maintain status as an GROUND CONTROL Reseller, Reseller shall purchase and resell at
least one GROUND CONTROL Service Account (iDirect or BGAN) every 90 days from the Effective Date of this agreement.
6.2. Forecasts. Within thirty (30) days after the Effective Date and within thirty (30) days prior to the beginning of each calendar
quarter during the Term, Reseller shall provide to GROUND CONTROL a written non-binding estimate stating the type of GROUND
CONTROL Solution units and location of End Users for such GROUND CONTROL Solution units, and state the type of GROUND
CONTROL Network Services that Reseller reasonably believes Reseller will submit to GROUND CONTROL over the following 30,
60 and 90 day periods. This estimate is for internal use by GROUND CONTROL only and does not create a binding obligation on the
part of Reseller to request, or on the part of GROUND CONTROL to provide, the GROUND CONTROL Solution units contained in
such forecast.
6.2 Purchase Orders. Shipments of GROUND CONTROL Solution units hereunder shall be made only against written purchase
orders issued by Reseller. At a minimum, each purchase order shall specify: (a) a complete list of the products covered by the
purchase order, including the quantity, model number(s) and description(s); (b) the price for such products; (c) the billing address, the
Reseller destination to which the products will be delivered and any specific requested delivery means or carrier, and a requested
delivery date (in accordance with GROUND CONTROL’s standard lead time schedules); (d) the signature of a person authorized by
Reseller to place and execute the purchase order; and (e) if applicable, the geographic area in which the GROUND CONTROL
Solution will be used or installed by Reseller or an End User. GROUND CONTROL shall not be obligated to accept any purchase
order that does not include the information set out in items (a) through (e). GROUND CONTROL shall use reasonable commercial
efforts to ship products as specified in a properly submitted purchase order unless GROUND CONTROL contacts Reseller to the
contrary within five (5) business days following GROUND CONTROL’s receipt of Reseller’s purchase order. GROUND CONTROL
reserves the right to reject any purchase order and neither party will have any liability to the other party with respect to purchase
orders that are not accepted by GROUND CONTROL. In the event of any conflict between the terms and conditions of this
Agreement and those of any purchase order or other ordering document or communication, the terms and conditions of this Agreement
shall control.
6.3 Shipment. All shipments of the products purchased or licensed pursuant to this Agreement will be made, (a) for United States
domestic addresses, FOB GROUND CONTROL’s designated facility, and (b) for deliveries to non-United States addresses, EXW
GROUND CONTROL’s designated facility (as defined in Incoterms 2000). All products will be packaged for shipment in accordance
with GROUND CONTROL’s standard practices. Reseller shall pay all loading, transportation, shipping, and related insurance costs.
If Reseller does not notify GROUND CONTROL in advance of a preferred freight forwarder, GROUND CONTROL shall select
freight forwarder to be used for shipment of the products to Reseller. Risk of loss shall pass to Reseller upon the goods being made
available for loading and shipping at GROUND CONTROL’s designated facility.
6.4 Title. If Reseller purchases the Equipment, ownership of and title to Equipment shall pass to Reseller or End User, as applicable,
upon transfer by GROUND CONTROL to the carrier for shipment to Reseller. If Reseller finances the equipment, ownership of and
title to the Equipment shall pass to Reseller or End User upon full payment of all amounts due per Exhibit A.
6.5 Shipping Dates. GROUND CONTROL shall use reasonable efforts to ship products for delivery on the estimated delivery date
provided in the purchase order. GROUND CONTROL shall not be liable for any loss, expense or damage incurred by Reseller if
GROUND CONTROL fails to meet the estimated delivery date. GROUND CONTROL reserves the right to allocate shipment of the
products among its purchasers and to make partial shipments
6.6 Cancellation. If Reseller cancels any purchase order of the GROUND CONTROL Solution, GROUND CONTROL shall invoice
Reseller, and Reseller shall pay, a cancellation fee equal to twenty-five percent (25%) of the total purchase order amount as liquidated
damages and not as a penalty.
7. Pricing and Payment.
7.1 Reseller Pricing. Reseller, in its sole discretion, shall determine the prices at which it resells or re-licenses the GROUND
CONTROL Solution. GROUND CONTROL shall pay no commissions to Reseller under this Agreement. Reseller’s compensation is
to be obtained solely by the difference between the amount that Reseller pays to GROUND CONTROL and the amount that Reseller
charges Customers. GROUND CONTROL will sell to Reseller, at Reseller pricing, provided Purchase Order for Equipment also
contains an Order for GROUND CONTROL Network Services for a minimum of one year, at GROUND CONTROL’s Customer
Pricing for Service. Purchase Orders for Equipment without an Order for GROUND CONTROL Network Services will be returned,
and will need to be re-issued at GROUND CONTROL’s Retail price for Equipment.
7.2 Price Changes. GROUND CONTROL, in its sole discretion, may modify such prices, and will provide Reseller with thirty (30)
Page 7 of 19
RSA120107
days written notice of any price modification. Pricing changes will only effect new orders not yet placed by Reseller. Pricing changes
will not affect any active Service Orders, until renewal.
7.3 Service Deposit. With the submission of each Customer Order Form, Reseller shall pay to GROUND CONTROL the Service
Deposit and Credit Application; if GROUND CONTROL does not accept the Customer Order Form, GROUND CONTROL shall
return the Service Deposit to Reseller. No interest shall accrue on any Service Deposit hereunder. GROUND CONTROL may deduct
from the applicable Service Deposit any amounts due hereunder and not paid within ten (10) days following the applicable due date.
Following termination of the Customer Order Form, such Service Deposit will be applied against any unpaid charges and other
ancillary costs and other amounts owed by Reseller to GROUND CONTROL (collectively, “Unpaid Service Fees”). To the extent
that such Service Deposit exceeds such Unpaid Service Fees, the excess will be refunded to Reseller within sixty (60) days after all
Unpaid Service Fees then owed to GROUND CONTROL from Reseller arising out of or following the termination of the applicable
Customer Order Form have been accounted for by GROUND CONTROL. For the avoidance of doubt, Reseller shall continue to pay
Monthly Recurring Fees and other charges specified in the applicable Customer Order Form until such Customer Order Form
terminates.
7.4 Non-Recurring Payments for GROUND CONTROL Network Services. At least five (5) days prior to the applicable Service Start
Date specified in the applicable Customer Order Form, Reseller shall pay to GROUND CONTROL: (a) the initial Monthly Recurring
Fee for the first month of GROUND CONTROL Network Service as set forth in the applicable Customer Order Form, (b) the
Commissioning Fee, and (c) any other fees specified in the Customer Order Form.
7.5 Monthly Recurring Fees. All Monthly Recurring Fees are due and payable monthly in advance, no later than the first day of each
month, without the necessity of invoice or demand from GROUND CONTROL.
7.6 Payment Terms. Unless credit terms have been established, prior to shipment of the GROUND CONTROL Solution, GROUND
CONTROL shall invoice Reseller for remaining amounts due pursuant to such Acknowledged Order. Reseller shall pay such invoices,
and invoices for other amounts that may be due hereunder, prior to shipment. All invoices will be payable in U.S. dollars by:
(a) check payable to GROUND CONTROL, Inc. and sent to the following address:
Ground Control
3100 El Camino Real
Atascadero, CA 93422
or (b) wire transfer to the following account(s):
Bank Name:
Address:
Rabobank
2276 Broad Street
San Luis Obispo, CA 93401
(805) 541-5500
Routing/Transit #:
Account #:
Account Name:
122238420
1538324011
Ground Control Systems
GROUND CONTROL may change the information for wire transfer or other payments hereunder upon written notice to Reseller.
7.7 Taxes. All prices are exclusive of any applicable value added, excise, sales, use, withholding or consumption taxes, customs
duties or other governmental charges. Reseller shall pay all municipal, state, county, federal and foreign taxes including, but not
limited to, value added, excise, sales, use, withholding or consumption taxes, customs duties, other governmental charges or other
taxes which may be levied upon the sale, license or transfer, ownership or installation of the GROUND CONTROL Solution except
for any taxes imposed upon the net income of GROUND CONTROL.
7.8 Out-of-Pocket Expenses. GROUND CONTROL shall invoice Reseller for any out-of-pocket expenses to be reimbursed
hereunder. Such expenses shall be at GROUND CONTROL’s cost plus a fifteen percent (15%) administrative fee.
7.9 Late Payments. Late payments shall bear a late payment charge on unpaid amounts equal to the lesser of 1.5% per month (18%
per annum) or the maximum rate permitted by law.
7.10 Payment Disputes. If Reseller disputes any portion of an invoice or other amount due hereunder, Reseller shall timely pay the
full amount and provide GROUND CONTROL, within thirty (30) days of payment, a written statement explaining Reseller’s reason
for believing the invoice to be in error. GROUND CONTROL will consider in good faith whether the invoice was in error and shall
credit Reseller’s account in the amount of the error if GROUND CONTROL determines that an error occurred.
Page 8 of 19
RSA120107
8. Representations, Warranties & Disclaimer.
8.1 Both Parties. Each party represents and warrants to the other that (a) it has full corporate power and authority to enter into this
Agreement; (b) it will not by virtue of entering into and performing this Agreement be in violation of any material term of its
Certificate of Incorporation, its Bylaws or other organizational documents, or any term or provision of any material mortgage,
indenture, contract, agreement, instrument, judgment or decree to which it is a party or by which it is bound; (c) neither this
Agreement (or any term hereof) nor the performance of or exercise of rights under this Agreement, is restricted by, contrary to, in
conflict with, ineffective under, requires registration or approval or tax withholding under, or will require any termination payment or
compulsory licensing under, any law or regulation of any organization, country, group of countries or political or governmental entity;
(d) each party shall use its commercially reasonable efforts to comply with all applicable laws, rules and regulations (including but not
limited to policies and laws related to certification, homologation, host nation approvals, licensing, privacy, obscenity or defamation)
in connection with the performance of its obligations pursuant to this Agreement; and (e) each party will perform its obligations
hereunder in a professional and workman like manner in accordance with industry standards.
8.2 Limited Warranty.
(a) GROUND CONTROL and Manufacturer warrants to Reseller that the GROUND CONTROL Solution will, during the Warranty
Period (defined below), materially conform to GROUND CONTROL and Manufacturer’s or an applicable third party provider’s
published specifications therefore in effect on the date of shipment, and will, under normal use and service, perform free of material
defects in accordance therewith. However, GROUND CONTROL and Manufacturer does not warrant that Software will operate
uninterrupted or error free. The warranty period (“Warranty Period”) shall be twelve (12) months from the date GROUND
CONTROL ships the relevant GROUND CONTROL Solution to Reseller.
(b) Subject to the provisions of this Section 8.2, defective Equipment will be (i) returned by Reseller to GROUND CONTROL’s
designated facility, at Reseller’s expense, (ii) repaired or replaced by GROUND CONTROL at no charge to Reseller (subject to
Section 8.2(c) below), and (iii) shipped to Reseller, at GROUND CONTROL’s expense FOB GROUND CONTROL’s designated
facilities for domestic shipments and for non-United States shipments, EXW GROUND CONTROL’s designated facilities (as defined
in Incoterms 2000) for shipments outside of the United States. Reseller shall assume risk of loss or damage to Equipment returned to
GROUND CONTROL for repair or replacement until delivery to GROUND CONTROL. Upon receipt, GROUND CONTROL shall
assume the risk of loss or damage to the applicable Equipment being repaired or replaced until made available for loading and
shipping at GROUND CONTROL’s facilities for return to Reseller. Corrections to Software shall be provided electronically or on
suitable media chosen by GROUND CONTROL.
(c) GROUND CONTROL’s sole obligation, and Reseller’s sole remedy, under this Section 8.2 is limited to the repair or replacement,
at GROUND CONTROL’s option, of the defective Equipment or correction of erroneous Software. In the event of a warranty claim,
or out-of-warranty service, in respect of Equipment, Reseller will notify GROUND CONTROL via telephone prior to sending to
GROUND CONTROL any Equipment or part thereof, and GROUND CONTROL shall at that time provide to Reseller a Return
Material Authorization (“RMA”) tracking number to be referenced by Reseller in the documentation that accompanies the Equipment
being returned to GROUND CONTROL. Upon receipt of the Equipment with the RMA tracking number or confirmation of a
Software error, GROUND CONTROL shall use its reasonable commercial efforts to repair or replace the returned Equipment or
correct the Software at no charge to Reseller or End User unless: (i) the GROUND CONTROL Solution was altered, repaired, or
reworked by a party other than GROUND CONTROL without GROUND CONTROL’s prior written consent; (ii) such defects or
errors were the result of (1) Reseller’s, a Reseller’s or an End User’s improper testing, installation, or storage, or mishandling, abuse,
or misuse of the GROUND CONTROL Solution;; (2) Reseller’s or an End User’s use of the GROUND CONTROL Solution in
conjunction with another product which is electronically or mechanically incompatible, or of an inferior quality; (3) damage by fire,
explosion, power failure, or any act of nature or (4) use of a VSAT or non-penetrating roof mount not provided by or approved by
GROUND CONTROL; (iii) the Warranty Period for the specific GROUND CONTROL Solution unit shall have expired; or (iv)
GROUND CONTROL determines that there is no defect in the returned GROUND CONTROL Solution unit. Reseller agrees to pay
for all service expense not covered by this warranty. For repair or replacement services that are not covered by the warranty
GROUND CONTROL shall invoice Reseller for (A) GROUND CONTROL’s services at its then-current rates, (B) materials and (C)
delivery charges to and from GROUND CONTROL’s facilities. The warranty period for any GROUND CONTROL Solution or unit
corrected, repaired, or replaced is sixty (60) days from the date of correction or shipment, as applicable, or until the end of the
Warranty Period, whichever is longer.
8.3 Disclaimer.
(A) GROUND CONTROL SOLUTION. GROUND CONTROL AND MANUFACTURER DOES NOT WARRANT THAT USE OF
THE GROUND CONTROL SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR AS TO THE RESULTS THAT
MAY BE OBTAINED FROM USE OF THE GROUND CONTROL SOLUTION, INCLUDING WITHOUT LIMITATION DATA
TRANSFER RATES OR OVER SUBSCRIPTION LEVELS THAT MAY BE ACHIEVED. EXCEPT AS EXPRESSLY
PROVIDED IN SECTION 8, EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
Page 9 of 19
RSA120107
NONINFRINGEMENT, ACCURACY, INTEGRATION, AND ALL IMPLIED WARRANTIES ARISING OUT OF USAGE OF
TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
(B) GROUND CONTROL NETWORK SERVICES. RESELLER’S AND CUSTOMER’S USE OF THE GROUND CONTROL
NETWORK SERVICES, INCLUDING BUT NOT LIMITED TO ANY INTERCONNECTION AND EQUIPMENT SELECTION,
ARE AT RESELLERS’S AND CUSTOMER’S OWN RISK. EXCEPT AS SET FORTH IN SECTION 8.1 OF THIS AGREEMENT,
GROUND CONTROL PROVIDES GROUND CONTROL NETWORK SERVICES HEREIN ON AN “AS-IS, AS AVAILABLE”
BASIS AND MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, AND HEREBY DISCLAIMS ANY
WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM
FROM ERRORS, AVAILABILITY, CORRECTNESS, ACCURACY AND RELIABILITY AND ALL WARRANTEIS ARISING
OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OR PERFORMANCE.
9. Indemnification.
9.1 Reseller Indemnity. Reseller shall indemnify and hold harmless GROUND CONTROL and Manufacturer and its officers,
directors, employees, affiliates, suppliers, partners, representatives, distributors, sales agents, contractors and agents against all costs,
claims, damages or expenses incurred (and reasonable attorneys’ fees in connection therewith), as well as amounts finally awarded in
a settlement or by a court arising from any claim or allegation by a third party involving (a) the provision of Network Services to End
Users, (b) use of the GROUND CONTROL Solution by Reseller or an End User other than as permitted by this Agreement;, (c) libel,
slander, defamation, invasion of privacy, infringement of copyright or trademark, or any other claim based on the content of any
transmission arising from any communication using the GROUND CONTROL Solution ; (d) patent or intellectual property
infringement arising from combining or using the GROUND CONTROL Solution in connection with facilities, services or equipment
furnished by others; (e) breach of any of Reseller’s representations and warranties pursuant to this Agreement; (f) failure to obtain,
maintain, comply with and renew all required certifications, licenses and homologations (now existing or hereafter enacted or created)
as required by this Agreement; or (g) the acts or omissions of Reseller in the performance of this Agreement.
9.2 GROUND CONTROL Indemnity. GROUND CONTROL will defend, indemnify and hold Reseller and its customers harmless
against any costs, claims, damages or expenses incurred (and reasonable attorneys’ fees in connection therewith), as well as amounts
finally awarded in a settlement or by a court arising from any claim or allegation by a third party of infringement or misappropriation
of a valid United States patent issued prior to the Effective Date, or any valid copyright or trade secret right, of a third party by the
GROUND CONTROL Solution. If a GROUND CONTROL Solution becomes or, in GROUND CONTROL’s opinion, is likely to
become the subject of any injunction preventing use as contemplated herein for the reasons stated in this Section 9.2, GROUND
CONTROL, or its designee, may, at its option, (a) procure for Reseller the right to continue using such GROUND CONTROL
Solution, as applicable, (b) replace or modify such GROUND CONTROL Solution, as applicable, so that it becomes non-infringing
without substantially compromising its functionality, or, if (a) and (b) are not reasonably available to GROUND CONTROL, then (c)
terminate this Agreement and the right to continue using the GROUND CONTROL Solution , as applicable, require the return of all
allegedly infringing GROUND CONTROL Solution or units and refund to Reseller a portion of the amounts paid by Reseller in
respect of such GROUND CONTROL Solution units depreciated on a straight-line basis over two (2) years from the date of original
shipment to Reseller. The foregoing obligation of GROUND CONTROL and Manufacturer shall not apply with respect to: (i) any
GROUND CONTROL Solution which is modified by any party other than GROUND CONTROL and Manufacturer or as authorized
by GROUND CONTROL and Manufacturer, if the alleged infringement relates to such modification, (ii) any GROUND CONTROL
Solution combined or bundled with any non-GROUND CONTROL and Manufacturer products, processes, software, hardware or
materials where the alleged infringement relates to such combination, (iii) Reseller continuing the allegedly infringing activity after
GROUND CONTROL and Manufacturer has provided Reseller with modifications that would have avoided the alleged infringement,
(iv) where Reseller’s or an End User’s use of the GROUND CONTROL Solution is incident to an infringement not resulting
primarily from the GROUND CONTROL Solution , as applicable, (v) infringement or misappropriation of any interest in which
Reseller has an interest, or (vi) use of the GROUND CONTROL Solution other than in accordance with their applicable
documentation and this Agreement. The foregoing states the entire liability of GROUND CONTROL and Manufacturer with respect
to infringement of patents, copyrights, trade secrets or other intellectual property rights by the GROUND CONTROL Solution or any
part thereof or by their operation.
9.3 Indemnification Procedure. The indemnification obligations of the indemnifying party are contingent upon the indemnified party
providing the indemnifying party with (a) prompt written notice of any such claim, action or demand, (b) control of the defense or
settlement thereof, and (c) reasonable assistance in such defense or settlement thereof, for which the indemnifying party shall pay
reasonable out-of-pocket costs and expenses.
10. Confidentiality.
10.1 Except as otherwise provided in this Section 10, each party agrees that all business, technical and financial information it obtains
Page 10 of 19
RSA120107
from the other party that is designated as confidential or proprietary in writing, or is disclosed in such a manner that a reasonable
person would understand the nature and confidentiality of the information disclosed, is and shall be the confidential property of the
disclosing party and its licensors (“Confidential Information” of the disclosing party). Confidential Information shall not include
information that: (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) hereafter becomes
known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a
third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party without
access to or use of the Confidential Information of the disclosing party.
10.2 Except as expressly and unambiguously allowed herein, the receiving party will not use or disclose the Confidential Information
of the disclosing party except as expressly permitted herein and will hold in confidence the Confidential Information of the disclosing
party using the same degree of care as it holds its own confidential or proprietary information, but no less than a reasonable degree of
care.
10.3 Upon the expiration or termination of this Agreement, all of the Confidential Information of the disclosing party (including any
copies or digests thereof) will be returned to the disclosing party, or, at the option of the disclosing party, destroyed, and the receiving
party will make no further use of such materials.
10.4 If required by law, rule, requirement, regulation or order of any government, or government agency or court, the receiving party
may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to the disclosing
party to permit the disclosing party to intervene and to request protective orders or other confidential treatment.
10.5 The parties acknowledge that money damages will not be an adequate remedy if this Section 10 is breached; either party may, in
addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach without the necessity
of posting any bond or surety.
11. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR OBLIGATIONS
ARISING UNDER SECTION 9 (INDEMNIFICATION), BREACHES OF SECTION 10 (CONFIDENTIALITY), EXCEEDING
THE SCOPE OF THE LICENSES GRANTED OR RESTRICTIONS HEREIN, BODILY INJURY OF A PERSON, WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE, NEITHER PARTY NOR ITS SUPPLIERS, OFFICERS, DIRECTORS, AFFILIATES,
REPRESENTATIVES, DISTRIBUTORS, SALES AGENTS, CONTRACTORS OR EMPLOYEES SHALL BE RESPONSIBLE OR
LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT, STRICT
LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR CORRUPTION OF DATA,
COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR LOSS OF BUSINESS; (B) FOR
ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES OR
FOR LOSS OF PROFITS; (C) FOR ANY MATTER BEYOND SUCH PARTY’S REASONABLE CONTROL; OR (D) FOR ANY
AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED AMOUNTS PAID
OR PAYABLE BY RESELLER TO GROUND CONTROL HEREUNDER; IN EACH CASE EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
12. Term and Termination.
12.1 Term. Unless terminated earlier as provided in Section 12.2, 12.3 or 12.4, this Agreement shall have a term extending from the
Effective Date until two (2) years after the Effective Date (the “Initial Term”). Thereafter, this Agreement shall automatically renew
for successive terms of one (1) year each (each a “Renewal Term”; the Initial Term together with any Renewal Terms shall be referred
to as the “Term”).
12.2 Termination. Either party may terminate this Agreement immediately upon the occurrence of any of the following events:
(a) at the end of the Initial Term or any Renewal Term, if one party has provided the other party at least thirty (30) days written notice
prior to the end of the applicable Term;
(b) the other party materially breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days
(ten (10) days in the case of payments; timely payment shall be considered to be a material provision) after receipt of written notice
describing the breach; or
(c) the other party shall seek protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or
comparable proceeding, or if any such proceeding is instituted against the other and not dismissed within sixty (60) days.
12.3 Termination by GROUND CONTROL. In addition to the termination events listed in Section 12.2 above, GROUND
CONTROL may terminate this Agreement for cause immediately if Reseller fails to promptly secure, maintain, renew or comply with
any certifications, licenses, or homologations for the conduct of its business or the sale, licensing and use of the GROUND
CONTROL Solution, or the provision of Network Services to Resellers and End Users and any such failure is not remedied within
thirty (30) days.
Page 11 of 19
RSA120107
12.4 Termination by Reseller due to Government Laws or Regulations. In the event that any government within the Primary Territory
enacts new laws or regulations after the Effective Date which adversely impact the sale, licensing, use or marketing of the GROUND
CONTROL Solution offered by Reseller hereunder, Reseller shall use its best efforts to comply with such new laws or regulations and
to fulfill all of its obligations hereunder. If Reseller is unable to comply with such laws or regulations in a timely manner (including,
but not limited to, initiation of a recall of deployed GROUND CONTROL Solution units and termination of End User Agreements if
required by such laws or regulations) despite Reseller’s best efforts, Reseller may terminate this Agreement as to the resale of the
GROUND CONTROL Solution only to such country within the Primary Territory by providing GROUND CONTROL ten (10) days
written notice and an explanation of why it is impossible for Reseller to comply with such laws or regulations.
12. 5 Effects of Termination or Expiration. Upon termination of this Agreement by either party (a) all rights and obligations of
Reseller and GROUND CONTROL hereunder shall terminate, (b) Reseller will immediately cease the marketing, sale and
sublicensing of the GROUND CONTROL Solution and the marketing and sale of the Network Services and all use of the GROUND
CONTROL and Manufacturer Marks, (c) all accrued rights to payment and Sections 1, 3.1, 3.3, 4.4, 4.6 (for the period stated therein),
8.3, 9, 10, 11, 12.5, 12.6, 12.7, and 13, shall survive such termination or expiration, and (d) only if this Agreement is terminated by
GROUND CONTROL pursuant to Section 12.2(a), Reseller may keep one unit of the GROUND CONTROL Solution and associated
Software, each of which is current at the time of termination, for the provision of support and maintenance to its End Users.
12.6 No Liability Upon Termination. Each party understands that the rights of termination hereunder are absolute. Neither party shall
incur any liability or compensation obligation whatsoever for any damage (including, without limitation, damage to or loss of
goodwill or investment), loss or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising
from or incident to any termination of this Agreement by such party that complies with the terms of this Agreement whether or not
such party is aware of any such damage, loss or expenses.
12.7 Nonexclusive Remedy. Termination is not the sole remedy under this Agreement and, whether or not termination is effected, all
other remedies will remain available.
12.8 Suspension of GROUND CONTROL Network Services. In addition to GROUND CONTROL’s other rights, and remedies
under this Agreement, in the event that Reseller or Customer is in material breach of a material provision of this Agreement, an
applicable Customer Order Form, or other Customer agreement, including without limitation payment provisions, GROUND
CONTROL may, in its sole discretion, upon seventy two (72) hours prior notice to Reseller, elect to temporarily suspend use of the
GROUND CONTROL Network Services (either completely or with respect to one or more Customer Sites) without terminating this
agreement until Reseller or Customer cures the breach. During such suspension, Reseller shall continue to remain liable for all fess
and other amounts payable in accordance with the terms hereof.
12.9 Term of Customer Order Forms. Each Customer Order Form shall be effective as of the applicable Service Start Date and shall
continue in full force and effect for the period set forth in the applicable Customer Order Form, until and unless terminated as
provided herein. At the end of the initial term, the applicable Customer Order Form shall automatically renew for successive twelve
(12) month terms at GROUND CONTROL’s then current fees unless and until either party terminates the applicable Customer Order
Form pursuant to Section 12.10. GROUND CONTROL shall notify Reseller of any changed fees at least sixty (60) days prior to any
renewal term of a Customer Order Form.
12.10 Termination of Customer Order Form. Either party may terminate any applicable Customer Order Form, but not this
Agreement as a whole, immediately upon the occurrence of any of the following events:
(a) at the end of the Initial Term or any Renewal Term, if one party has provided the other party at least thirty (30) days written notice
prior to the end of the applicable Term;
(b) the other party materially breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days
(ten (10) days in the case of payments; timely payment shall be considered to be a material provision) after receipt of written notice
describing the breach; or
(c) the other party shall seek protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or
comparable proceeding, or if any such proceeding is instituted against the other and not dismissed within sixty (60) days; or
(d) if at any time GROUND CONTROL, or its designees, can no longer comply fully with the provisions of this Agreement because
of FCC or other government or agency rules or regulations which are inconsistent with this Agreement or the use of any products or
services to be provided to Customers in any jurisdiction, then either party may (i) terminate the applicable Customer Order Form as it
applies to any such jurisdiction without any liability whatsoever by giving thirty (30) days prior written notice, or (ii) negotiate to
modify this Agreement or the applicable Customer Order Form so as to conform with such rules and regulations.
12.11. Effect of Termination of Customer Order Form. Upon termination of an applicable Customer Order Form, all rights of Reseller
and Customer with respect to the applicable GROUND CONTROL Network Services herein shall terminate, and unless otherwise
agreed to by both parties in writing, GROUND CONTROL shall not be responsible for assisting Reseller or Customer with any
Page 12 of 19
RSA120107
transition of the Customer Site to a new network provider. If GROUND CONTROL terminates an applicable Customer Order Form
pursuant to Sections 12.10(b) or 12.10(c), then GROUND CONTROL may retain the Service Deposit, and all fess through the end of
the then-current term of the applicable Customer Order Form shall be due and payable as of the effective date of termination.
13. General.
13.1 Public Announcements. Except as expressly permitted herein, neither party will make public announcements or issue press
releases relating to this Agreement or the terms of this arrangement without the prior written consent of the other party, which consent
or refusal shall not be unreasonably withheld or delayed, provided that (a) either party may originate such public announcement if
required by law, and (b) each party hereby consents to the other party’s inclusion of its name and the fact that GROUND CONTROL
and Reseller have entered into the arrangement set forth herein in partner listings, web sites and marketing materials that may be
published as part of a party’s marketing efforts.
13.2 Relationship of Parties. The parties hereto shall each be independent contractors in the performance of their obligations under
this Agreement, and nothing contained herein shall be deemed to constitute either party as the agent, representative or franchisee of
the other party, or both parties as joint ventures or partners for any purpose. The relationship of the parties hereunder is solely that of
a buyer and seller. Reseller has not paid a fee to enter into this Agreement. Reseller shall not represent itself as GROUND
CONTROL’s agent or act in any way that might imply that GROUND CONTROL and Reseller are not separate and distinct entities.
Each party is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith.
Except as expressly provided herein, a party shall have no right to exercise any control whatsoever over the activities or operations of
the other party, or commit the other party to any obligation or course of action. GROUND CONTROL is an equal opportunity
employer.
13.3 Assignment. This Agreement and the rights and obligations herein may not be assigned or transferred, in whole or in part, by
Reseller without the prior written consent of GROUND CONTROL, which consent shall not be unreasonably withheld or delayed.
GROUND CONTROL may assign or transfer this Agreement, and the rights or obligations hereunder, in whole or in part, to third
parties, including successors to the business to which this Agreement relates, without the consent of Reseller. Any assignment or
transfer in violation of this provision shall be void and without effect. In the case of any permitted assignment or transfer of, or under,
this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the successors and
permitted assigns of the parties hereto.
13.4 Governing Law and Legal Actions. This Agreement and the transactions contemplated hereby shall be governed by and
construed under the law of the State of California, U.S.A. and the United States without regard to conflicts of laws provisions thereof
and without regard to the United Nations Convention on Contracts for the International Sale of Goods or California’s or any other
implementation of the Uniform Computer Information Transactions Act. Except that either party may seek equitable or similar relief
from any court of competent jurisdiction, any dispute, controversy or claim arising out of or in relation to this Agreement, or at law, or
the breach, termination or invalidity thereof, that cannot be settled amicably by agreement of the parties hereto shall be finally settled
in accordance with the arbitration rules of the International Chamber of Commerce (“ICC”), Paris, then in force by one or more
arbitrators appointed in accordance with said rules. The appointing authority shall be the ICC Court of Arbitration. The place of
arbitration shall be Irvine, California U.S.A. The proceedings shall be in English. The award rendered shall be final and binding on
both parties. Judgment on the award may be entered in any court of competent jurisdiction. In any action or proceeding to enforce
rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. This Agreement shall be
interpreted and construed in the English language, which is the language of the official text of this Agreement.
13.5 Export Control. Reseller shall comply with, and shall, at GROUND CONTROL’s request, demonstrate compliance with all
applicable export laws, restrictions, and regulations of any United States or foreign agency or authority. Reseller shall not export or
re-export, or allow the export or re-export of any product, technology or information it obtains pursuant to this Agreement (or any
direct product thereof) in violation of any such laws, embargoes, restrictions or regulations, including, but not limited to, export or reexport to Cuba, Iran, Iraq, Libya, North Korea, Syria, Sudan or any other country subject to United States trade embargoes, or to any
party on the United States Export Administration Table of Denial Orders or the United States Department of Treasury List of
Specially Designated Nationals, or to any prohibited destination in any of the Country Groups specified in the then-current
Supplement No. 1 to Part 740 or the Commerce Control List specified in the then-current Supplement No. 1 to Part 738 of the United
States Export Administration Regulations (or any successor supplement or regulations). Reseller shall obtain and bear all expenses
relating to any necessary licenses and/or exemptions with respect to the export or re-export from the United States to Reseller or End
Users in compliance with all applicable laws and regulations prior to shipment thereof. Reseller shall indemnify GROUND
CONTROL and its directors, officers, agents, network service providers and employees from and against any and all violations of this
provision.
13.6 Corrupt Practices. Pursuant to the Foreign Corrupt Practices Act of the United States, Reseller shall not corruptly make an offer,
payment, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of anything
of value to any government official for the purpose of obtaining or keeping any business, license or authorization hereunder, and
Page 13 of 19
RSA120107
Reseller shall indemnify GROUND CONTROL from any failure to comply with, or violation of, such act by Reseller.
13.7 Notices. All notices under this Agreement will be in writing, in English and will be deemed to have been duly given when
received, if personally delivered; when receipt is electronically confirmed, if transmitted during normal business hours by facsimile or
e-mail; the business day after it is sent, if sent for priority or next day delivery by recognized overnight delivery service; and upon
receipt, if sent by certified or registered mail, return receipt requested to a party at its address first set forth in the preamble to this
Agreement or as may be amended by notice pursuant to this subsection.
13.8 Modification. No modification of this Agreement shall be effected by either party’s use of any order form, purchase order,
acknowledgement, license, shrink wrap, box top, or click wrap license, or other form containing additional or different terms. This
Agreement may only be modified by an instrument in writing duly executed by authorized representatives of Reseller and GROUND
CONTROL, making specific reference to this Agreement and the clause to be modified.
13.9 Waiver. No provision of, right, power or privilege under this Agreement shall be deemed to have been waived by any act, delay,
omission or acquiescence on the part of any party, its agents or employees, but only by an instrument in writing signed by an
authorized representative of the party against whom the waiver is sought to be enforced. No waiver by any party of any breach or
default of any provision of this Agreement by the other party shall be effective as to any other breach or default, whether of the same
or any other provision and whether occurring prior to, concurrent with, or subsequent to such waiver.
13.10 Entire Agreement. This Agreement includes the exhibits, schedules and attachments hereto, which are hereby incorporated in
this Agreement by reference. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and
supersedes all proposals, negotiations, conversations, discussions, letters of intent, memoranda of understanding, term sheets, whether
written or oral, between parties relating to the subject matter of this Agreement and all past dealing or industry custom.
13.11 Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
13.12 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect in any jurisdiction,
then such invalidity, illegality or unenforceability will affect only such provision in such jurisdiction, and will not in any manner affect
the provision in any other jurisdiction, or any other provision of this Agreement in any other jurisdiction. The parties hereby authorize
a court or arbitrator to substitute such invalid, illegal or unenforceable provision with a valid provision that reflect the original intent
of the parties as nearly as possible.
13.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all
of which taken together shall constitute one and the same instrument.
13.14 Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND
LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS
AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE
CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND THE DECISION BY EACH PARTY
TO ENTER INTO THIS AGREEMENT.
Ground Control Systems, Inc.
____________________________
By:______________________________
By:________________________
Jeff Staples
Name: _____________________
CEO
Title: _______________________
Page 14 of 19
RSA120107
EXHIBIT A
RESELLER PRICING
Separate Attachment.
Page 15 of 19
RSA120107
EXHIBIT B
SERVICE LEVEL AGREEMENT
Subject to the terms and conditions of the Agreement, the following service levels shall apply to GROUND CONTROL’s provision of
GROUND CONTROL Network Services.
1.
Definitions. Unless otherwise defined below, capitalized terms used in this Exhibit B shall have the respective meaning
assigned thereto in the Agreement to which this Exhibit B is attached.
“Annual Period” means a twelve-month period beginning on the date (or anniversary thereof) that GROUND CONTROL began
providing GROUND CONTROL Network Services to a particular Customer for a particular Customer Site pursuant to a valid
Customer Order Form and ending on the anniversary of such date.
“Service Availability” means ((total number of minutes per Annual Period minus Network Downtime) divided by (total number
of minutes per Annual Period)) multiplied by 100.
“Network Downtime” means the time period commencing upon GROUND CONTROL’s acknowledgement following notice
from Reseller that the GROUND CONTROL Network Services are Unavailable to a Customer due to failure of the GROUND
CONTROL Network Services and ending upon notice to Reseller that the GROUND CONTROL Network Service have be restored to
the Customer.
“Unavailable” means that (1) the applicable Customer is experiencing at least fifty percent (50%) packet loss, as measured by
GROUND CONTROL, and (2) Reseller or the applicable Customer personnel and other resources are available to assist GROUND
CONTROL in connection with the resolution of the service failure (and shall not include time that the Reseller or the applicable
Customer personnel or resources are not available). Unavailable does not include the exclusions set forth in Section 4.7 of this Exhibit
B.
“Service Credit” means a credit against amounts owed to GROUND CONTROL for a particular Customer Site calculated in
accordance with this Exhibit B. One (1) Service Credit equals 1/720 of the amounts payable to GROUND CONTROL for GROUND
CONTROL Network Services for the applicable Calendar Month, in respect of a particular Customer Site pursuant to the applicable
Customer Order Form.
2.
Reporting Unavailability
Reseller Investigation. Prior to reporting any potential issue of Unavailability of GROUND CONTROL Network Services,
Reseller shall first complete preliminary investigations and testing in accordance with Section 4.15 of this Agreement.
Reseller Reporting. Subject to Section 4.4 of this Exhibit B, if the GROUND CONTROL Network Services are Unavailable, then
Reseller shall so notify GROUND CONTROL as set forth in Section 2.3 of this Exhibit B.
Reporting. Reseller, but not Customers, may contact GROUND CONTROL’s Network Operation Center 24 hours per day, seven
(7) days per week, via telephone, facsimile or email to report the Unavailability of GROUND CONTROL Network Services.
GROUND CONTROL shall use its commercially reasonable efforts to respond to any report of Unavailability of the GROUND
CONTROL Network Services within fifteen (15) minutes following receipt of such report by either (a) telephone or (b) the same
means by which the inquiry was submitted by Reseller, which response shall acknowledge receipt of the report and issue a tracking
number.
Escalation Process. Where no response to a report of Unavailability is received from GROUND CONTROL within the timeframe
specified above, the following escalation contact protocol shall apply:
Elapsed Time:
Escalation Contact:
30 Minutes
Network Operations Center (“NOC”)
1 Hour
Director of NOC
2 Hours
VP of Operations
6 Hours
President
Page 16 of 19
RSA120107
3.
Resolution.
GROUND CONTROL Resolution. Following receipt of a report of Unavailability of GROUND CONTROL Network Services,
GROUND CONTROL shall work with Reseller and the Customer to investigate and resolve such Unavailability and restore
GROUND CONTROL Network Services. Reseller or the applicable Customer shall ensure that the appropriate personnel and other
resources are available to assist GROUND CONTROL in connection with the resolution of the service failure during all periods of
Unavailability.
Reporting To Reseller. GROUND CONTROL shall promptly contact Reseller upon the restoration of service. In addition,
GROUND CONTROL shall provide Reseller with daily updates regarding Unavailability of GROUND CONTROL Network
Services, which are not resolved within twenty-four (24) hours after the initial report to GROUND CONTROL from Reseller.
4.
Service Availability and Credits.
Service Credit Accrual. Beginning on GROUND CONTROL’s confirmation of the service failure, and subject to Section 4.7 of
this Exhibit B, one (1) Service Credit shall accrue for each hour that the Service Availability is less than 99.5% as measured over each
Annual Period. Service Credits shall not accrue for any time that Customer and Reseller fail to make appropriate personnel and
resources available to GROUND CONTROL.
Reseller Must Request Service Credits. To claim entitlement to Service Credits, Reseller must (i) agree to provide one hundred
percent (100%) of the Service Credit to the applicable Customer and (ii) contact GROUND CONTROL Customer Service within ten
(10) days after the end of the month during which the incident(s) for which Service Credits are requested occurred.
Service Credit Increments. All site Unavailability times shall be calculated in five (5) minute increments for the periods
described in Section 4.1 of this Exhibit B. Service Credits shall be pro rated to the nearest five (5) minute interval (for example, a 30minute service outage in excess of the Service Availability guarantee would result in 50% of a Service Credit).
Maximum Service Credits. The maximum number of Service Credits that may be credited for any reason to Reseller for any
Customer site will be 720 Service Credits in any one Monthly Period.
No Refunds. Service Credits shall be applied only to the applicable Monthly Recurring Fees following the Annual Period during
which the event-giving rise to the Service Credit occurred. In no event shall Reseller be provided a Service Credit in cash, refund, or
any other form other than a credit against applicable Monthly Recurring Fees.
Exclusive Remedy. Regardless of any provision of this Agreement or otherwise, Reseller’s and Customer’s sole remedy for
GROUND CONTROL’s or its designee’s failure to provide the GROUND CONTROL Network Services as indicated shall be the
Service Credits provided for in this Section 4 of this Exhibit B.
Exclusions. The GROUND CONTROL Network Service shall not be deemed Unavailable and GROUND CONTROL will not
incur any Service Credit or otherwise be obligated or liable for or in connection with any failure in the GROUND CONTROL
Network Services due to the following: (a) traffic volumes in excess of those committed by GROUND CONTROL, as set forth in the
applicable Customer Order Form; (b) the negligence, or acts of omissions of Reseller or Customer (including, without limitation,
violation of Policies, non-fulfillment of its obligations under this Agreement, or damage to any equipment used to access the
GROUND CONTROL Network Services); (c) anything beyond the reasonable control of GROUND CONTROL, including but not
limited to acts of God, fire, flood, adverse weather conditions, meteorological or atmospheric occurrences or disturbances (including
sun outages), or other natural events, any irreparable satellite component failure, satellite unavailability, externally cause interference,
acts of government, national emergencies, and the like; (d) scheduled maintenance; (e) slow data rates that do not render the
GROUND CONTROL Network Services Unavailable; (f) Unavailability resulting from Reseller’s or Customer’s failure to use
GROUND CONTROL approve VSAT’s or non-penetrating roof mounts; or (g) suspension of GROUND CONTROL Network
Services by GROUND CONTROL pursuant to Section 12.8 of the Agreement.
Page 17 of 19
RSA120107
EXHIBIT C
ACKNOWLEDGEMENTS TO GROUND CONTROL’S VOIP SERVICE AND 911-TYPE SERVICE
INTRODUCTION Pursuant to the Federal Communications Commission’s VoIP E911 Order (WC Docket Nos. 04-36 and 05-196,
FCC 05-116, released June 3, 2005), ¶¶ 48-49, and Section 9.5(e) of the FCC’s rules, all interconnected VoIP providers are required to
“advise every subscriber, both new and existing, prominently and in plain language, the circumstances under which E911 Service may
not be available through the interconnected VoIP service or may be in some way limited by comparison to traditional E911 service.”
Because Ground Control is providing Zero-1 Voice Services to you, we are obligated to make certain disclosures to you regarding the
911 services, and to obtain and retain your acknowledgment of having received and understood these disclosures.
Prior to submitting your order, you need to sign and return to us the acknowledgement at the end of this letter to acknowledge that you
understand the limits of the 911 capabilities of Ground Control’s Zero-1 Voice Services, and to acknowledge that you will comply
with your obligation to inform your subscribers of these limitations.
“911-type Services” means functionality that allows end users to contact emergency services, including, without limitation, police, and
fire and hospital medical services. 911-type Services may include Enhanced 911-type Service (“E911”), which has the ability to
selectively route an emergency call to the primary 911 provider so that it reaches the correct emergency service located closest to the
subscriber location and to transmit the identification of the subscriber location and telephone number (subject to the obligations to
provide and maintain the subscriber location information). Enhanced 911-type Service is not immediately available in all areas, and is
subject to the capabilities of the local PSAP.
Ground Control’s VOIP service may not support 911-type Services utilizing the 911 infrastructure to complete calls to an emergency
service dispatcher. You acknowledge and understand that 911-type dialing is NOT automatic, that you and your subscribers must
separately take affirmative steps to effectuate such 911-type Services and that such 911-type Services is different in a number of
important ways from traditional 911 service as set forth below.
You acknowledge and understand that subject to the limitations set forth below, every subscriber must provide a subscriber location
(in the form of a valid street address) and you and your subscribers are responsible for correctly and timely inputting, validating,
maintaining and updating such subscriber location information in the manner prescribed by Ground Control. You acknowledge and
understand that 911-type Services will not be available to a particular subscriber in the event of the assignment of a telephone number
to a subscriber location outside of the geographic rate center associated with such telephone number; or the relocation of the calling
device to which a telephone number has been assigned to a location away from the registered subscriber location associated with such
telephone number; or you or your subscriber fail to or are delayed in maintaining and updating subscriber location information as
required to enable that information to be registered in the local telephone company’s Automatic Location Information database.
You acknowledge and understand that 911-type Services will not be available to a particular subscriber in the event of an outage,
degradation or other disruption of electric power at the subscriber location.
You acknowledge and understand that 911-type Services will not be available to a particular subscriber in the event of an outage,
degradation or other disruption of the subscriber broadband Internet connection.
You acknowledge and understand that 911-type Services will not be available to a particular subscriber in the event of a suspension of
your account as a result of nonpayment or other breaches by you.
I hereby acknowledge that: (1) My company understands the 911 limitations of the Ground Control’s VOIP Services; (2) My
company will inform its subscribers of the 911 limitations of Ground Control’s VOIP Services, and will obtain and retain their
acknowledgements of receiving and understanding this information; (3) My company will distribute warning stickers or other
appropriate labels warning subscribers of 911 limitations; and (4) I have authority to make this acknowledgement on behalf of my
company.
Page 18 of 19
RSA120107
Ground Control Systems, Inc.
____________________________
By:______________________________
By:________________________
Jeff Staples
Name: _____________________
CEO
Title: _______________________
Page 19 of 19
RSA120107