Exhibit 10.37



 


Exhibit 10.37




AT&T WIRELESS

RESELLER AGREEMENT




	 	 	 
	CUSTOMER	 	
AT&T Wireless
	Legal Name: At Road Inc.

Business Name (if different):  <<DBA >>

Type of Entity: Corporation (“Customer”)	 	
AT&T Wireless Services, Inc., a Delaware

corporation, dba AT&T Wireless (“Company”)
	 
	CUSTOMER Address (For Official Notices)	 	
Company Address (For Official Notices)
	47200 Bayside Parkway

Fremont, CA 94538	 	
AT&T Wireless

Mobile Multimedia Services

8645 154th Avenue NE

Redmond, WA 98052
	 
	CUSTOMER Contact	 	
Company Contact
	Name: Krish Panu

Title: President

Telephone: 1 877 4 ATROAD

Fax:	 	
Name: Cary Campbell

Title: MMS Enterprise Business Development

Telephone: 425 580-5744

Fax: 425 580-6606
	 
	CUSTOMER Billing Address	 	 
	47200 Bayside Parkway

Fremont, CA 94538	 	 



This Agreement consists of this Cover Page, the attached Terms and Conditions,
and Exhibit A (collectively, this “Agreement”).


This Agreement is effective as of February 24, 2003 (“Effective Date”).



CUSTOMER’S SIGNATURE BELOW ACKNOWLEDGES THAT CUSTOMER HAS READ AND

UNDERSTANDS EACH OF THE PROVISIONS OF THIS AGREEMENT AND AGREES TO

BE BOUND BY THEM.




	 	 	 	 	 
	AT ROAD INC.	 	
AT&T WIRELESS SERVICES, INC.
	 	 	 	 	 
	By: /s/ Krish Panu	 	
     By: /s/ Stacey Black
	 	
	 	 	

	 	(Authorized Signature)	 	 	(Authorized Signature)
	Name: Krish Panu	 	
Name: Stacey Black
	Title:   President	 	
Title:   VP – MMS Enterprise Solutions
	Date:	 	
Date:   March 12, 2003



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AT&T WIRELESS CERTIFIED DATA RESELLER AGREEMENT

Terms and Conditions



Section 1. Purchase and Sale of the Service. Customer agrees to purchase from
AWS, and AWS agrees to sell to Customer, the following services for resale to
third parties:



	i.	 	Wireless Data Services for Certified Data Resellers on the AWS GSM/GPRS
Wireless Network (additional terms governing this Service are set forth in
Exhibit A).



Section 2. Term. This Agreement commences on the Effective Date set forth
above and remains in effect two (2) years (the “Initial Term”). This Agreement
will automatically renew for successive one (1) year renewed terms unless a
party provides the other party with a notice of termination at least thirty
(30) days prior to the end of the then-current term.


Section 3. Definitions.


     3.1     Affiliate(s) means, with respect to any entity, any other entity that
directly controls, is controlled by, or is under common control with the first
entity. Control is deemed to exist when an entity has the direct or indirect
possession of the power to direct the management and policies of another
entity.


     3.2     Approved Equipment means Equipment that has been certified and
approved by AWS for the insertion of AWS SIMs and activation on AWS’ wireless
data network.


     3.3     Area(s) means the areas within the United States where AWS is licensed
to provide the Service and is providing Service. The Area changes from time to
time.


     3.4     Device means the equipment used by a Subscriber or an End User to
originate or receive wireless transmissions on the Network, including any
wireless telephone, wireless modem, wireless SIM (Subscriber Identity Module)
Card, and any accessories.


     3.5     End User means an individual or entity obtaining access to Service
from Customer.


     3.6     Equipment means all equipment (other than equipment comprising
portions of AWS’ network) necessary to enable Customer or its End Users to
receive the Service, including but not limited to Customer’s network
facilities, and any End User Device.


     3.7     Events of Default means the following:


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          (i) the execution of any assignment for the benefit of creditors or the
filing for relief by either party under any applicable bankruptcy,
reorganization, moratorium, or similar debtor relief laws (provided such filing
is not dismissed within thirty (30) days of the date of filing);



          (ii) the appointment of a receiver for Customer or AWS or for
substantially all of their respective assets or properties;



          (iii) the failure of either party to pay any sum owed to the other
hereunder not then reasonably in dispute at the time such amount comes due;



          (iv) the failure of either party to perform or observe any other material
term, condition, or covenant to be performed by it under this Agreement;



          (v) the commission of any illegal act (excluding misdemeanor traffic
offenses and other minor misdemeanors not involving dishonesty or moral
turpitude) by or the filing of any criminal indictment or information against a
party, its officers, directors or shareholders (to the extent such shareholders
control in the aggregate or individual 10% or more of the voting rights or
equity interests of such party);



          (vi) Customer’s giving AWS three or more checks within a 12-month period
that are not paid when presented due to insufficient funds;



          (vii) an unauthorized assignment of this Agreement;



          (viii) the failure by Customer to meet the eligibility requirements or any
of the terms and conditions of the Service Plans selected by Customer; or



          (ix) the failure by customer to utilize Devices or Equipment compatible
with the AWS GPRS wireless data network or other AWS network as determined by
AWS, unless AWS otherwise consents to or approves of Customer’s use of such
Device(s) or Equipment.



     3.8.     Integrated Circuit Card Identifier (“ICC-ID”) means the number that
uniquely identifies a subscriber identity module (“SIM”) card. It is found
just under the logo on a SIM card, and the last digit is preceded by a dash.


     3.9     International Mobile System Identity (“IMSI”) means in Global System
for Mobile Communications (“GSM”) systems, information that is stored on the
subscriber identity module (SIM) relevant to network selection. The IMSI
contains the user identity module – mobile country code (“UIM-MCC”) and the
user identity module – mobile network code (“UIM-MNC”).


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     3.10     Network means those integrated mobile switching facilities, servers,
cellsites, connections, billing systems and other related facilities used to
provide Service in an Area.


     3.11     Number means the telephone, data and/or messaging number(s) assigned
to Customer for each End User to obtain access to Service, including without
limitation the AWS network equipment identifier (“NEI”), the mobile
identification number (“MIN”), the International Mobile System Identity
(“IMSI”), and the International Telecommunications Charge Card Identification
(“ICCID”).


     3.12     Service means the wireless telecommunications services selected in
Section 1 above.


     3.13     Service Plan means the particular set of rates, terms and conditions
at which AWS makes Service available to Customer, but does not include any
short-term marketing promotions that may come with the plan.


     3.14     Subscriber means any person or entity purchasing Service from AWS,
including Customer. An End User is not a Subscriber.


     3.15     Subscription Fraud means using or assisting another to use any
scheme, false representation, or false credit device, or other fraudulent means
or devices in connection with Service; including, but not limited to, the
fraudulent production of information regarding a person’s identity or the use
of unauthorized credit.


     3.16     Unauthorized Access means any unauthorized use of Service through the
modification of the electronic serial number (“ESN”) or other authentication
method associated with a Device which shall include the practices generally
referred to as “counterfeiting,” “cloning fraud,” or “tumbling fraud”.


Section 4. The Service.


     4.1     Establishing an Account. Customer shall provide information
reasonably requested to establish a billing account. Once all requested
information is received by AWS, AWS will establish Customer’s account(s) within
seven (7) days of the date Customer submits its request to so establish.


     4.2     Assigning Numbers.


          4.2.1 Initial Assignment and Subsequent Orders. Once a billing account is
established, Customer shall accept an initial order of subscriber identity
modules (“SIMs”) and Numbers in an amount equal to the Initial Purchase
Requirement set forth on Exhibit A attached



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to and incorporated in this Agreement. Customer may then order additional
blocks of SIMs and Numbers as needed as outlined in Exhibit A. Subject to the
availability of SIMs and Numbers, the imposition of additional processes on AWS
by third parties in order to obtain the SIMs, and Numbers and the capacity of
the AWS’ facilities, such additional SIMs and Numbers will be supplied to
Customer under normal circumstances within eight (8) weeks after AWS’ receipt
of the order. As a general rule, AWS shall process orders for SIMs and Numbers
from all Subscribers, including Subscribers who are owned or controlled by AWS
or an Affiliate of AWS, in the sequence in which orders for additional SIMs and
Numbers are received, unless otherwise reasonably requested by Customer. If the
order for Numbers pertains to a new market, a new billing account may need to
be established before the Numbers can be provided. AWS’ obligation to provide
additional SIMs and Numbers to Customer shall cease upon (a) receipt by AWS of
Customer’s notice of termination, or (b) issuance by AWS of notice of
termination or upon notice of default. If Customer cures the defaults
described in the notice of default within the required period, then AWS shall
again be obligated to provide additional SIMs and Numbers as provided in this
section. AWS may charge the Customer a fee for each SIM provided.


          4.2.2 Cancellation of Number Assignments. Customer may cancel the
assignment of any Number, provided that where applicable, Customer pays any
cancellation fees associated with cancellation of Number assignments as defined
in the Service Plan.



          4.2.3 Number Conservation. Customer and AWS shall follow reasonable
number conservation policies generally accepted by the telecommunications
industry and AWS may, from time to time upon reasonable notice to Customer,
change Number assignments in conformity with such policies, including changes
requested or ordered by federal or state regulatory authorities or by number
administrators recognized by such authorities as having responsibility for the
assignment of telephone numbers. If Numbers are unavailable, AWS may follow
generally accepted industry standards and/or regulatory requirements, if any,
in responding to the shortage of Numbers. AWS shall incur no liability to
Customer for Number shortages.



          4.2.4 Ownership of Numbers. Customer acknowledges that, subject to FCC
number portability rules, neither it nor any End User shall have or acquire any
proprietary right in any specific Number or Number block provided by AWS.



     4.3     Activation of Service.



          4.3.1 Activation Requests. AWS shall use reasonable efforts to activate
Numbers as soon as practicable (normally within twenty four (24) hours)
following receipt by AWS’ designated representative of a completed activation
form. AWS shall not be obligated to activate Service for any Number assigned
to Customer if Customer has committed an Event of Default which has not been
cured within the applicable cure period described in Section 16.1.


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          4.3.2 Remote Access. AWS will make reasonable efforts to allow Customer
to perform activations and other account changes via the AWS major accounts web
site provided that Customer provides the necessary information to establish a
log in to AWS’ systems.



          4.3.3 Restrictions. A Number may not be associated with more than one
Device at the same time, unless otherwise approved by AWS. Furthermore, AWS
reserves the right to deny Service at the point of activation to Devices
appearing on AWS’ service deny lists for one of a variety of reasons, including
cases where the Device is stolen, has been used for fraudulent purposes, or is
defective. AWS shall notify Customer in such cases as to the reason for denial
for each Number. AWS is not liable to Customer or End Users if Service is
denied, or a requested modification is not made to a Number appearing on the
then-current service deny lists.



     4.4     Modification or Termination of Service. Except as otherwise provided
in a separate remote access agreement described in Section 4.3 above and
subject to the limitations described in this Agreement, if Customer desires to
modify or terminate Service with respect to one or more Number(s), Customer
shall provide notice to AWS of such modification or termination specifying the
Number(s) and such additional information as AWS may reasonably require. Such
notice shall be provided by an authorized representative of Customer and shall
be given during AWS’ business hours. AWS shall modify or terminate Service to
such Number(s) under normal circumstances within four (4) business hours
following receipt of such notice from Customer. Notwithstanding the foregoing,
AWS may modify or terminate Service with respect to one or more Number(s) as
provided below in Section 10 with respect to abuse or fraudulent use upon
providing Customer with written notice thereof not less than forty-eight (48)
hours prior to such modification or termination. AWS shall have the right to
establish policies regarding the length of time between deactivating and
reactivating the same Number.


     4.5     Troubleshooting. AWS will provide to Customer, and not directly to
End Users, network monitoring support, technical assistance support and
trouble-shooting support regarding the Service as AWS deems reasonable from
time to time. Customer will cooperate with AWS in any troubleshooting of the
Equipment or the Network as required to maintain the efficient operation of the
Service.


     4.6     Limitations on Service.


          4.6.1 General Limitations. CUSTOMER ACKNOWLEDGES THAT SERVICE IS MADE
AVAILABLE ONLY WITHIN THE OPERATING RANGE OF THE NETWORK. SERVICE MAY BE
TEMPORARILY REFUSED, INTERRUPTED, OR LIMITED BECAUSE OF: (a) FACILITIES
LIMITATIONS; (b) TRANSMISSION LIMITATIONS CAUSED BY ATMOSPHERIC, TERRAIN, OTHER
NATURAL OR ARTIFICIAL CONDITIONS ADVERSELY AFFECTING TRANSMISSION, AND OTHER
CAUSES REASONABLY OUTSIDE OF AWS’ CONTROL; OR (c) EQUIPMENT



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MODIFICATIONS, UPGRADES, RELOCATIONS, REPAIRS, AND OTHER SIMILAR ACTIVITIES
NECESSARY FOR THE PROPER OR IMPROVED OPERATION OF SERVICE. CONNECTIONS MAY BE
“DROPPED” (I.E., INVOLUNTARILY DISCONNECTED) FOR A VARIETY OF REASONS,
INCLUDING, WITHOUT LIMITATION, ATMOSPHERIC CONDITIONS, TOPOGRAPHY, WEAK
BATTERIES, SYSTEM OVERCAPACITY, MOVEMENT OUTSIDE A SERVICE AREA OR GAPS IN
COVERAGE WITHIN A SERVICE AREA. AWS SHALL INCUR NO LIABILITY FOR ITS INABILITY
TO PROVIDE ADEQUATE SERVICES HEREUNDER IF SUCH INABILITY IS DUE TO THE ABOVE
LIMITATIONS OR TO CAUSES BEYOND THE REASONABLE CONTROL OF AWS. NOR SHALL AWS
BE RESPONSIBLE FOR ANY ACT OR OMISSION RELATED TO NON-AWS EQUIPMENT OR SYSTEMS
USED IN CONNECTION WITH THE SERVICE.


          4.6.2 Limitations on Roaming Service. AWS WILL PROVIDE THE SAME ACCESS TO
ROAMING CAPABILITIES (INCLUDING “IN-AREA” ROAMING WHERE AVAILABLE) THAT IS MADE
AVAILABLE BY AWS TO OTHER SIMILARLY SITUATED SUBSCRIBERS PROVIDED THAT
EQUIPMENT WITH SIMILAR TECHNICAL CAPABILITIES AND PROGRAMMING IS USED BY END
USERS. THE AVAILABILITY OF ROAMING SERVICES, AND THE CHARGES FOR THOSE
SERVICES, IS DEPENDENT IN PART ON THE TYPE OF EQUIPMENT USED BY END USERS AND
THE PROGRAMMING OF THAT EQUIPMENT. AWS MAKES NO WARRANTIES OR REPRESENTATIONS
AS TO THE AVAILABILITY OR QUALITY OF ROAMING SERVICE PROVIDED BY OTHER WIRELESS
CARRIERS, AND AWS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY ERRORS, OUTAGES,
OR FAILURES OF ROAMING SERVICES PROVIDED BY OTHER WIRELESS CARRIERS.



          IF AWS, OR ANOTHER ENTITY WITH WHOM AWS HAS A ROAMING AGREEMENT, DISCOVERS
OR SUSPECTS ABUSE OR FRAUD WITH RESPECT TO CERTAIN NUMBERS, THEN ROAMING
PRIVILEGES MAY BE SUSPENDED WITH RESPECT TO SUCH NUMBERS. AWS SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO PROVIDE CUSTOMER WITH PRIOR, OR PROMPT
SUBSEQUENT, NOTIFICATION OF THE SUSPENSION OF THE ROAMING SERVICE. AWS SHALL
HAVE NO LIABILITY TO CUSTOMER REGARDING THE UNAVAILABILITY OR SUSPENSION OF
ROAMING SERVICE BY OTHER CARRIERS.



          TO THE EXTENT ACCESS TO ROAMING CAPABILITIES IS PROVIDED BY AWS TO
CUSTOMER, IT SHALL BE DEEMED TO BE A “SERVICE” AS DEFINED IN SECTION 3 ABOVE,
AND THE USE OF SUCH ROAMING BY CUSTOMER OR CUSTOMER END USERS SHALL BE GOVERNED
BY THE PROVISIONS OF THIS AGREEMENT.



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          4.6.3 Privacy. THE NETWORK HAS MANY COMPLEX ELEMENTS AND IS NOT
GUARANTEED AGAINST EAVESDROPPERS OR INTERCEPTORS. CUSTOMER AGREES THAT AWS
SHALL NOT BE LIABLE TO CUSTOMER OR TO END USERS FOR ANY LACK OF PRIVACY OR
SECURITY.



     4.7     Relationship with End Users


          4.7.1 Generally. AWS is obligated only to Customer and not to End Users,
who are not to be deemed third-party beneficiaries of this Agreement. Customer
is solely responsible for all risks and expenses incurred with its provision of
the Service to End Users. Customer will act on its own account in all respects
and will be solely responsible for such things as credit verification,
deposits, billing, collection, and bad debt.



          4.7.2 Disclosures to End Users. Customer will disclose to End Users the
following provisions:



     1.     [END USER] HAS NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING WIRELESS
SERVICE CARRIER AND [END USER] IS NOT A THIRD PARTY BENEFICIARY OF ANY
AGREEMENT BETWEEN [CUSTOMER] AND UNDERLYING CARRIER. [END USER] UNDERSTANDS
AND AGREES THAT THE UNDERLYING CARRIER SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER
LIABILITY OF ANY KIND TO [END USER]. IN ANY EVENT, REGARDLESS OF THE FORM OF
THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT
LIABILITY IN TORT OR OTHERWISE, [END USER’s] EXCLUSIVE REMEDY FOR CLAIMS
ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER,
INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF SERVICE PROVIDED
HEREUNDER, IS LIMITED TO PAYMENT OF DAMAGES IN AN AMOUNT NOT TO EXCEED THE
AMOUNT PAID BY [END USER] FOR THE SERVICES DURING THE TWO (2) MONTH PERIOD
PRECEDING THE DATE THE CLAIM AROSE.


     2.     [END USER] SHALL INDEMNIFY AND HOLD HARMLESS THE UNDERLYING WIRELESS
SERVICE CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL
CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY
DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY,
IN CONNECTION WITH THIS AGREEMENT OR THE USE, FAILURE TO USE, OR INABILITY TO
USE THE NUMBER EXCEPT WHERE THE CLAIMS RESULT FROM THE UNDERLYING CARRIER’S
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY SHALL SURVIVE THE
TERMINATION OF THE AGREEMENT.


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     3.     [END USER] HAS NO PROPERTY RIGHT IN ANY NUMBER ASSIGNED TO IT, AND
UNDERSTANDS THAT ANY SUCH NUMBER CAN BE CHANGED FROM TIME TO TIME.


     4.     [END USER] UNDERSTANDS THAT [CUSTOMER] AND THE UNDERLYING CARRIER
CANNOT GUARANTY THE SECURITY OF WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE
FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES.


          4.7.3 End User Support. Customer is solely responsible for all
interactions with End Users with respect to the Service. This includes, but is
not limited to, taking the End Users’ calls and using reasonable commercial
efforts to remedy any problem without AWS’ participation. Customer will report
a problem to AWS only upon reasonable verification that the problem is due to
reasons other than misuse, malfunction or the failure of the Equipment to meet
the technical standards for compatibility with the Service, or failure of the
End User to understand how to use the Service.



          4.7.4 End User Communications. AWS will have the continuing right to
market and sell the Service and any other communications services to any third
party, including but not limited to current, future and potential End Users,
and to communicate with such third parties; provided, however, in no event
shall AWS disclose any information concerning Customer’s performance under this
Agreement, the relationship of the parties, or any other information the
disclosure of which is prohibited pursuant to Section 11 of this Agreement.



     4.8     Additional Procedures. In addition to complying with the requirements
of this Agreement, Customer will comply with such other policies and procedures
reasonably established by AWS for obtaining SIMs and Numbers, configuring and
programming Equipment, activating or deactivating Service with respect to any
End User, and other activities contemplated by this Agreement. AWS may from
time to time modify these policies and procedures by giving Customer notice.


     4.9     Authorized Representatives. AWS and Customer shall each notify the
other of their respective authorized representatives for purposes of giving and
receiving the notices for any Service orders, including those which involve the
activation, change, or discontinuance of Service. Each party may appoint no
more than three (3) representatives at any time, unless the other party
consents to a greater number, which consent will not be unreasonably withheld.
The notice of appointment, and the authority of the representative, shall
remain effective until the notice is canceled or amended by the party for which
such representative is acting. AWS will not accept any notice or orders from
any End User or other agent of Customer.


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     4.10     Service Level Agreement. AWS will use best efforts to provide the
Service and perform its obligations under this Agreement in accordance with the
standards established by the Service Level Agreement (“SLA”) which will be
attached hereto as Exhibit B after AWS and Customer establish the SLA outlining
the support processes. In the event AWS fails to satisfy the terms of the SLA,
in whole or in part, Customer shall have such rights and remedies as are
specifically set forth in such SLA.


Section 5. SIM Policy.


     5.1     Generally. The parties have agreed that AWS may, from time to time,
sell SIMs to Customer for insertion into Approved Equipment. Customer will
comply with the terms set forth below.


     5.2     SIM Limitations and Reporting. Customer is only authorized to
purchase a quantity of SIMs that may reasonably be used for activations on AWS’
wireless services under the Agreement. AWS will generate reports regarding the
activation or nonactivation of SIMs on AWS’ wireless services. AWS may cancel
sales of SIMs to Customer if, in AWS’ discretion, an unreasonably high
percentage of SIMs is not activated to AWS’ wireless service. In addition to
any other audit rights under the Agreement, AWS may perform an audit of
Customer’s records and physical inventory relating to SIMs upon reasonable
advance notice to Customer.


     5.3     Authorized Use of SIMs


          5.3.1 Approved Equipment. Customer is only authorized to use SIMs
purchased under this Agreement by properly inserting them into Approved
Equipment. Only SIMs purchased under this Agreement may be inserted into or
combined with this Approved Equipment for use on AWS’ network.



          5.3.2 Specific Prohibitions. Customer is not permitted to use the SIMs
purchased from AWS in any manner other than as set forth in Section 5.3.1
above. Specifically and without limitation, Customer must not:



				
	 	(i)	 	insert the SIMs into Equipment
purchased from AWS that has been packaged with an AWS
SIM;




				
	 	(ii)	 	insert the SIMs into any device not
expressly approved of in writing by AWS;




				
	 	(iii)	 	sell or convey in any manner the
SIMs separate from the Approved Equipment;



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	 	(iv)	 	sell or convey in any manner SIMs,
whether separately or together with Approved Equipment,
to any individual or entity other than the expected End
User of that SIM and Equipment; or





				
	 	(v)	 	program, reprogram, or tamper with the SIMs in any manner.



          5.3.3 No Third-Party SIMs. Customer is only authorized to purchase SIMs
directly from AWS or AWS’ designee for use on AWS’ network. Customer is not
permitted to purchase SIMs for use at all on AWS’ Network (except in cases of
legitimate roaming) from any other source not approved by AWS, even if they
originally came from AWS. Customer may not use SIMs purchased from any party
not authorized by AWS in any Equipment to be activated on AWS’ network.
Customer must inform AWS of any other individuals or entities that it learns
are offering SIMs alleged to be compatible with AWS’ network and must cooperate
with AWS in any investigation regarding SIM distribution.



     5.4     Return of SIMs. Upon the expiration or termination of the Agreement,
Customer will promptly return all SIMs to AWS that it has in inventory or
otherwise controls within its sales channels as of the date of such expiration
or termination. AWS will reimburse Customer for the returned SIMs.


Section 6. Equipment.


     6.1     Generally. AWS shall not be responsible to Customer or any End User
for the sale, provision, installation, operation, quality of transmission, or
testing and maintenance of any Equipment. Customer is responsible for ensuring
that all Equipment meets (i) industry standards for compatibility with Service,
(ii) AWS’ requirements for compatibility with Service (provided AWS notifies
Customer), and (iii) all FCC and other applicable regulatory authority
requirements. AWS is not obligated to activate a Number to any Device that
operates on a different radio frequency than AWS’ Service, or otherwise does
not meet the applicable standards and requirements. If any Device fails to
meet such requirements, Customer shall use its best efforts to ensure that such
Device is no longer used and shall, if necessary, terminate Service to such
agent or End User. Customer shall pay any charges, including additional
roaming charges, incurred by AWS because a Device does not meet AWS’
requirements.


     6.2     Sale of Devices by AWS. AWS is under no obligation to sell Devices
(except SIMs) to Customer. If AWS chooses to sell certain Devices to Customer,
then (i) the terms and conditions shall be as set forth in a separate written
agreement; and (ii) AWS retains sole discretion to withhold other approved
Devices from sale to Customer.


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     6.3      Trans-shipped Devices. Customer and its agents shall not activate
any Device they have reason to believe was sold by AWS to one of AWS’ dealers
or retailers. These sales are made on the condition that the Devices will not
be trans-shipped (i.e. re-sold to third-party retailers or wholesalers).



Section 7. Rates.


     7.1     Generally. Customer will pay for Service at the rates set forth in the
Service Plan(s) Customer selects. The Service Plans available to Customer are
specifically described or referred to in the attached exhibit(s). AWS’ billing
records and those of AWS’ authorized billing agent shall be the sole records
used to determine what Service was rendered, and shall prevail over any records
maintained by other third parties.


     7.2     Minimum Revenue Commitments. Solely during the Initial Term of this
Agreement Customer agrees to a minimum monthly service revenue (MSR) as defined
in the schedule below:



	 	 	 
	From months 7-12 of the Agreement	 	
* per month
	 
	After month 13 to the end of the Agreement	 	
* per month



     If actual monthly service revenue is below the minimum monthly service
revenue defined for that month, Customer will pay AWS the difference.


     7.3     Availability of Other Service Plans. Customer has the obligation to
notify AWS in writing if Customer believes it is entitled to rates which are,
on average, better than the rates AWS has offered to Customer. If Customer was
entitled to the lower rates, Customer’s sole remedy shall be the issuance of a
credit to Customer’s account for the amount of actual charges Customer would
have saved had the lower rates been made available. The period for determining
the savings shall begin 90 days prior to the date of Customer’s notice and end
on the date the savings are no longer available.


     7.4     Modification of Rates.


          7.4.1 By Customer. Customer may change to another available Service Plan
at any time provided it pays any applicable early cancellation or change fee.
The change will normally be made within four (4) business hours of AWS receipt
of the request from Customer. Depending on the nature of the change, the
effective date for the change may relate back to the first day of the
then-current billing cycle.



          7.4.2 By AWS. AWS may modify a Service Plan at any time in accordance
with the requirements of Section 19.9 below; provided that any modification not
adverse to



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	*	 	Confidential
material redacted and separately filed with the
SEC.





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Customer may be made effective upon notice and will not give Customer the
right to terminate this Agreement.


     7.5     Prorations. Access fees (if any) with respect to assigned Numbers for
billing periods of less than one month will be prorated based on the actual
number of days in such periods. For purposes of such prorations, each monthly
billing cycle may be deemed, at AWS’ discretion, to have thirty (30) days. AWS
may, at its option, prorate other monthly charges, such as for calling
features.


     7.6     Taxes. Customer will pay all applicable federal, state and local
sales, use, public utilities, gross receipts or other taxes, fees, or
recoveries imposed on AWS as a result of this Agreement (collectively, “Taxes”)
(other than taxes imposed on the net income of AWS). Customer will submit
certificates of resale for federal excise tax and as required for the states in
which it will resell Service. Customer is responsible for collecting from its
End Users and paying all Taxes associated with its provision of Service.
Customer will reimburse AWS for any such Taxes paid by AWS on Customer’s
behalf.


     7.7     Tariffs. If the Service becomes subject to any federal, state, or
local regulation or tariff, then this Agreement shall be deemed amended
immediately to conform to the requirements of such regulation or tariff,
provided that any tariff changes initiated by AWS shall still comply with
notice provisions under this Agreement. Nothing in this Agreement shall be
deemed (i) to require or preclude the use of tariff-equivalent or
tariff-related charges, or (ii) to provide or imply that such charges are or
are not appropriate in the provision of Service.


     7.8     Special Offers. Unless specified in the Service Plan or in a separate
notice from AWS to Customer, Customer will not be entitled to participate in
any marketing promotions, reward programs, retention programs, equipment
offers, warranty and insurance packages, “*” and “#” numbers, mMode service,
or other promotions and enhancements provided to other Subscribers
(collectively, “Special Offers”). However, if the Network does not prevent
access to a Special Offer by End Users, Customer may not encourage the use of
the Special Offer by End Users and AWS may impose a reasonable charge on
Customer if such usage occurs.


     7.9     Service Outages. In the event of a total Service outage within an Area
which is not caused by Customer or its End User and which lasts for a period of
twenty-four (24) hours or more, a credit allowance will be made at Customer’s
request in the form of a pro rata adjustment of the fixed charges billed by AWS
to Customer with respect to such Number. Periods of discontinuous outage may
not be accumulated in determining if an outage has continued for at least
twenty-four (24) hours. In order to receive such credit, Customer must submit a
written request to AWS, stating the date and location of the outage, the
Numbers affected, and such other information as AWS may reasonably require.
Such notice must be received by AWS within ten


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(10)  business days following the last date of the period of outage.
EXCEPT AS PROVIDED HEREIN, AWS SHALL INCUR NO LIABILITY FOR SERVICE OUTAGES.


Section 8. Invoices, Payments, Disputed Charges and Security Deposits.


     8.1     Invoices. AWS will provide Customer a summary invoice for all charges
on a monthly basis, normally within ten (10) days after the cut-off date for
each billing cycle. AWS will use reasonable efforts to have all Numbers of
Customer in a particular billing database assigned to a single cycle, but any
Number may be assigned to any cycle and the cycle to which a Number is assigned
may be changed from time to time; provided, however, that AWS shall not
unreasonably require multiple billing cycles for the same billing database.
AWS will provide Customer with forty-five (45) days’ prior written notice of
any change in billing cycles to be used with respect to Numbers assigned to
Customer.


     8.2     Payments. Payment in full for each invoice shall be due at the
location set forth in the invoice, in a form payable in U.S. currency, upon the
due date set forth in the invoice. Depending on Customer’s payment history, AWS
may at its sole discretion require payment by certified check, money order, or
wire transfer, if available. Payments are past due, and Customer shall have
committed an Event of Default, if not received by the due date shown on the
invoice, or within thirty (30) days after the billing data was received under
Section 9, whichever is later. Time is of the essence with respect to payment
of AWS’ invoices. If a payment becomes past due, the account will accrue late
fees and interest at the rate of one and one-half percent (1.5%) per month or
the maximum lawful rate, whichever is less. Customer agrees not to place any
condition or restrictive legend, such as “Paid in Full”, on any check or
financial instrument used to make a payment. The parties agree that the
negotiation of any such check or instrument so inscribed shall not constitute
an accord and satisfaction or novation.


     8.3     Disputed Charges. Customer shall provide AWS with written notice of
any disputed charges within ninety (90) days after the date Customer received
the billing data under Section 9, provided Customer shall in all events make
reasonable good faith efforts to give AWS notice of such disputed charges no
more than three (3) business days after learning of the disputed charge.
Customer shall be entitled to receive the requested credits unless AWS
investigates the claim and notifies Customer of any defenses within 90 days of
the initial notice. If AWS provides such notice of defenses, the parties will
use their best efforts to arrive at a mutually agreeable resolution of the
appropriate amount due. The parties agree to resolve any disputes remaining
after these efforts under the alternative dispute resolution processes
described in Section 18 below. The notice requirements in this paragraph shall
not shorten the period within which actions must be filed as established by the
applicable statute of limitations, but shall constitute a condition precedent
to any right of the aggrieved party to contest prior invoices or payments.
This condition is designed to allow each party the opportunity to preserve
important evidence in defense of a claim.


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     8.4      Security Deposits. Upon an Event of Default or prior to any
assignment of new Numbers, AWS may require a cash security deposit to secure
performance of Customer’s obligations under this Agreement. The security
deposit shall be based on AWS’ assessment of Customer’s creditworthiness,
including Customer’s payment history with AWS and AWS may increase or decrease
the deposit amount at any time based on a reassessment of those factors. All
decisions with respect to the necessity for and amount of a deposit shall be
made in AWS’ sole reasonable discretion. Disputed past due amounts that were
previously reported by Customer to AWS covering the period January 1, 2001
through December 31, 2002 will not be considered for a required security
deposit. Customer shall provide the deposit within ten (10) days of AWS’
request. Failure by Customer to provide the deposit within the ten-day period
shall constitute a material breach under this Agreement. Anytime Customer has
a past due balance with AWS under this Agreement, AWS may, without further
notice or proceedings, deduct any amounts due from the security deposit and
pursue other actions as AWS may deem appropriate; provided, however, AWS shall
be limited to deducting from such security deposits only such amounts that are
otherwise due under this Agreement. At termination of this Agreement, upon
Customer’s full performance of all terms and conditions of this Agreement, any
deposit shall be returned without interest, within ten (10) business days of
such termination.



          In lieu of a cash deposit, Customer may provide a letter of credit issued
by a financial institution and having terms and conditions satisfactory to AWS.
A financial institution will generally be satisfactory to AWS if it is a bank
chartered under the laws of the State of an Area in which Customer purchases
Service or the United States with deposits insured by the Federal Deposit
Insurance Corporation (“FDIC”) and with an office located within the Area. If
Customer fails to pay any sum owed to AWS, AWS may draw from the letter of
credit and apply such drawings to sums due hereunder. This right is in
addition to all other rights and remedies available to AWS under this Agreement
or at law or in equity.


          If Customer files for bankruptcy protection or an involuntary bankruptcy
petition is filed against Customer, AWS and Customer agree that AWS shall be
entitled to draw down against the deposit or letter of credit any sums that are
owed AWS at that time. Should AWS seek relief from the automatic stay in order
to effect such action, although such relief may not be required under current
law, Customer agrees and stipulates to the entry of relief from the stay and
agrees to raise no defenses thereto. AWS and Customer stipulate that the
letter of credit and the Customer’s obligations under this Agreement arise out
of the same transaction.


Section 9. Billing Data.


     9.1     Availability. AWS will use reasonable efforts to provide electronic
detailed billing data for all Service Plans loaded into a reseller billing
cycle. All Service Plans specifically identified in the exhibits to this
Agreement will be loaded into such cycles. Subject to the


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provisions of Section 9.2 below, it is AWS’ sole determination as to what
other Service Plans are loaded into those billing cycles.


     9.2     Delivery. Where billing data is available for a Service Plan, AWS
shall provide Customer with the detailed billing data described in Section 9.1
within seven (7) business days after the billing cycle cut-off date. AWS shall
provide one set of data per billing cycle. Customer understands that AWS may
in its discretion assign Customer’s Numbers to multiple billing cycle
databases. Customer must notify AWS of the name, US postal address, email
address, and phone number of Customer’s billing agent at least forty-five (45)
calendar days prior to the expected mailing date of the billing data. Each
package delivered to Customer’s billing agent shall be labeled according to the
then current procedures of AWS’ billing vendor. Customer must notify AWS
immediately if it does not receive the electronic data within the seven (7)
business day time frame. The media provided by AWS will include reasonable
billing information compiled using standard industry protocols. Customer
agrees to notify AWS within three (3) business days after receiving such media
of any flaws or defects, and to return the defective media to AWS’ billing
vendor. Customer shall pay AWS’ cost for any unreturned defective bill media.


     9.3     Audits. Customer may request an audit to determine the accuracy of
any invoice rendered within 90 days of the request. The parties shall provide
access to such necessary and reasonably required data to facilitate the audit.
Customer shall pay the actual fees incurred as a result of the audit unless the
audit reduces the charges by more than two percent (2%). If the audit reduces
the charges by more than two percent (2%), then AWS will reimburse Customer for
all fees and costs of such audit in addition to reducing the amount owed.


Section 10. Abusive or Fraudulent Use.


     10.1     Generally. Service to a Number may be restricted or cancelled if
there is a reasonable suspicion of abuse or fraudulent use. AWS shall provide
prompt notice of the restriction or termination to Customer. Customer agrees to
make good faith efforts to minimize abuse or fraudulent use, to promptly report
to AWS any such abuse or fraudulent use of which Customer becomes aware, and to
cooperate in any investigation or prosecution initiated by AWS. Abuse and
fraudulent use of Service include, but are not limited to:



				
	 	(i)	 	Attempting or assisting another to access, alter,
or interfere with the communications of and/or information
about another wireless customer;




				
	 	(ii)	 	Tampering with or making an unauthorized
connection to the Network;




				
	 	(iii)	 	Installing any amplifiers, enhancers, repeaters,
or other devices that modify the radio frequencies used to
provide the Service;



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	 	(iv)	 	Subscription Fraud;




				
	 	(v)	 	Using Service in such a manner so as to interfere
unreasonably with the use of Service by one or more other
wireless customers or End Users or to interfere unreasonably
with AWS’ ability to provide Service;




				
	 	(vi)	 	Using Service to convey obscene, salacious, or unlawful information;




				
	 	(vii)	 	Using Service without permission on a stolen or lost Device;




				
	 	(viii)	 	Unauthorized Access.






     10.2     Liability for Abuse or Fraudulent Usage. As between Customer and AWS,
liability for charges and other costs or damages resulting from abuse or
fraudulent use shall be as follows:


          10.2.1 Customer shall have sole liability for charges, costs or damages
resulting from (i) Subscription Fraud, (ii) any theft of a Device, a User ID
number, or password associated with the Service; (iii) any abuse or fraud
facilitated by Customer, Customer’s employees, Customer’s agents or End Users,
or (iv) any failure to give prompt notice of suspected abuse or fraudulent use
based on information available to Customer.



          10.2.2 Customer shall have no liability for abuse or fraudulent use
charges, costs or damages incurred after AWS has discovered the abuse or fraud
or four (4) business hours after Customer has notified AWS of it.



          10.2.3 Customer shall not be liable for any charges relating to
Unauthorized Access if Customer provides AWS with clear and convincing evidence
of the Unauthorized Access, such as: (i) call detail information for the End
User’s account; and (ii) a statement by Customer that it has thoroughly
investigated the alleged Unauthorized Access and that it will cooperate
reasonably in obtaining affidavits or other required documentation required for
any prosecution of the person fraudulently using the Service. AWS reserves the
right to modify this provision to require affidavits prior to issuing any
credits if Customer does not comply with this Section. Such investigation by
Customer should include contacting or attempting to contact a sufficient number
of recipients of calls at issue of each End User so as to establish a
reasonable basis for inferring that the remainder of such calls were the result
of Unauthorized Access.



Section 11. Confidentiality.


     11.1     Non-Disclosure of Confidential Information. Either party may (but
shall not be obligated to) disclose information to the other party which the
disclosing party considers proprietary or confidential. Without the disclosing
party’s specific prior written consent,


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disclosure shall not be made to a third party (including but not limited
to End Users) of any information which is designated in writing as confidential
or proprietary at the time of disclosure and which is supplied by one party to
the other party; and which information is not otherwise generally available to
the public or is not already known to the other party; provided, however,
either party may disclose such information in compliance with court processes
or similar agency requirements if the other party has been given ten (10) days
prior notice of the proposed disclosure or as much notice as is reasonably
possible if the situation does not permit such ten (10) day notice. The
parties agree that equitable relief is available for any breach or threatened
breach of this Section.


     11.2     Additional Protection of Confidential Information. In the
performance of this Agreement, AWS’ Affiliates, officers, directors, agents and
employees may come into possession of information about Customer’s End Users,
including but not limited to Numbers and usage or other forms of identification
of End Users. Neither AWS nor any person or entity obtaining such information
by or through AWS may use any such information except as required to provide
Service to Customer under this Agreement. However, any information
independently developed by AWS, which shall not include End User or Customer
content (including but not limited to the identity of any such End User or
Customer) but which may include End User network usage and/or traffic data, may
be used by AWS at its sole discretion. Such information shall be treated by
AWS as confidential hereunder. AWS acknowledges that it has no rights to End
User or Customer content carried over its Network.


Section 12. Marks.


     12.1     AWS Marks. Customer recognizes the right, title and interest of AWS
and its respective Affiliates in and to all service marks, trademarks and trade
names used by any of them in connection with the Service (the “AWS Marks”).
Customer agrees not to engage in any activities or commit any acts, directly or
indirectly, which may contest, dispute, or otherwise impair such right, title,
and interest of AWS and its respective Affiliates therein. Customer will not
gain any rights to the AWS Marks by virtue of this Agreement and will not use
any AWS Marks without AWS’ prior written consent.


     12.2     Customer Marks. AWS recognizes the right, title and interest of
Customer and its respective Affiliates in and to all service marks, trademarks
and trade names used by any of them in connection with the Service (the
“Customer Marks”). AWS agrees not to engage in any activities or commit any
acts, directly or indirectly, which may contest, dispute, or otherwise impair
such right, title, and interest of Customer and its respective Affiliates
therein. AWS will not gain any rights to the Customer Marks by virtue of this
Agreement and will not use any Customer Marks without Customer’s prior written
consent.


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     12.3      Protection of Marks. Neither party will engage in any activity that
may be harmful to the other party’s goodwill or may reflect unfavorably on its
marks. This prohibition includes, without limitation, the commission of any
unfair trade practice, the publication of any false, misleading or deceptive
advertising, or the commission of any fraud or misrepresentation.



Section 13. Indemnification and Insurance.


     13.1     Indemnity. Customer and AWS each hereby agree to defend, indemnify
and hold harmless each other and each other’s Affiliates, and their former,
current, and future officers, directors, employees, agents, successors and
assigns, from and against any claims, costs and expenses, including punitive
damages, court costs, and reasonable attorneys’ and expert witness’ fees before
and at trial and on appeal (collectively, “Claims”), arising from a breach of
this Agreement by or any conduct in connection with this Agreement by the
indemnifying party (including such party’s Affiliates, and their officers,
directors, employees, agents, and contractors). Customer further agrees to
defend, indemnify, and hold harmless AWS, its Affiliates, and their former,
current, and future officers, directors, employees, agents, successors, and
assigns, from and against any Claims of End Users. Notwithstanding the
foregoing, the obligations of both Customer and AWS to defend, indemnify, and
hold harmless shall not apply to the extent such claims result from the other
party’s negligence or willful misconduct.


     Within ten (10) days after being notified of any Claim to which these
indemnification obligations may apply, the party receiving such notice shall
notify the party from whom the indemnification is sought (the “Indemnifying
Party”), and shall give reasonable opportunity to the Indemnifying Party to
defend the claim at its own expense and with counsel of its own selection;
provided, however, that the party seeking indemnification shall at all times
have the right to participate fully, at its own expense, in the defense of the
Claim.


     If the Indemnifying Party, within thirty (30) days after notice, shall
fail to accept defense of the Claim, then the party seeking indemnification
shall have the right, but not the obligation, to undertake the defense of, and
to compromise or settle (exercising reasonable business judgment), the Claim on
behalf, for the account, and at the risk of the Indemnifying Party. If the
Claim cannot by its nature be defended solely by one party, the other party
shall make available all information and assistance that may reasonably be
requested, regardless of any obligations to indemnify hereunder.


     Customer shall, at its own expense, (i) defend AWS in any claim or legal
action asserted or brought by a third party alleging that the application or
service provided by Customer hereunder or to an End User infringes any patent,
trademark or copyright (“Infringement Claim”); and (ii) pay any settlement
reached or final award, including reasonable attorney’s fees, for infringement.
As a condition of such defense or payment, AWS is required to (i) give
Customer prompt written notice of any Infringement Claim; (ii) provide Customer
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the defense or settlement of the Infringement Claim; (iii) cooperate fully
with Customer in such defense or settlement. AWS may, at its own expense,
participate fully in the defense of any such Infringement Claim.


     AWS shall, at its own expense, (i) defend Customer in any claim or legal
action asserted or brought by a third party alleging that the AWS Network
infringes any patent, trademark or copyright (“AWS Infringement Claim”) and
(ii) pay any settlement reached or final award, including reasonable attorney’s
fees, for infringement. As a condition of such defense, Customer is required
to (i) give AWS prompt written notice of any AWS Infringement Claim; (ii)
provide AWS with the sole control of the defense or settlement of the AWS
Infringement Claim; (iii) cooperate fully with AWS in such defense or
settlement. Customer may, at its own expense, participate fully in the defense
of any such AWS Infringement Claim.


     13.2     Insurance. Customer shall keep in full force and effect a policy of
public liability, personal injury, property damage, and contractual liability
insurance with respect to the business operated by Customer, which insurance
shall cover each occurrence in an amount not less than $1,000,000 and shall
cover property damage in an amount not less than $500,000.00. Such policy or
policies shall name AWS as an additional insured and shall be procured from an
insurance carrier reasonably acceptable to AWS. Upon request, Customer shall
furnish AWS with a certificate evidencing such insurance. Such insurance shall
provide that the insurer will not cancel, materially alter, or allow such
insurance to expire without first giving AWS thirty (30) days’ notice.


Section 14. No Warranties.


AWS SUPPLIES A SERVICE, AND NOT GOODS. AWS MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SERVICE OR THE PERFORMANCE OF ANY OBLIGATIONS
HEREUNDER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE EXPRESSLY EXCLUDED.
AWS IS NOT THE MANUFACTURER OF ANY CUSTOMER EQUIPMENT AND MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT THERETO. TO THE EXTENT AWS PROVIDES ACCESS TO
INFORMATION PROVIDED BY OTHER SOURCES, AWS ACCEPTS NO LIABILITY FOR AND MAKES
NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONTENT THEREOF.
CUSTOMER HAS NOT RELIED ON AND WILL NOT CLAIM THAT IT IS ENTITLED TO THE
BENEFITS OF ANY REPRESENTATIONS, PROMISES, DESCRIPTION OF SERVICES OR OTHER
STATEMENT NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT.


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Section 15. Limitation of Liability.


     15.1     NO CONSEQUENTIAL DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE OTHER
(OR ITS END USERS, CUSTOMERS OR ANY THIRD PARTY) FOR ANY INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES ARISING OUT OF SUCH PARTY’S FAILURE TO PERFORM UNDER
THIS AGREEMENT. NOTHING IN THIS SECTION 15 WILL LIMIT A PARTY’S OBLIGATION TO
FULLY INDEMNIFY THE OTHER UNDER SECTION 13 FOR ACTIONS BROUGHT BY THE
INDEMNIFYING PARTY’S CUSTOMERS, END USERS OR BY ANY THIRD-PARTY, EVEN IF SUCH
ACTIONS INCLUDE CLAIMS FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.


     15.2     LIABILITY CAP. EXCEPT FOR LIABILITIES ARISING UNDER SECTION 13, THE
AGGREGATE LIABILITY OF AWS FOR CLAIMS RELATING TO THIS AGREEMENT, WHETHER FOR
BREACH OR IN TORT, WITH RESPECT TO CUSTOMER, END USERS, OR OTHER USERS OF
SERVICE OR FACILITIES, WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO AWS IN
THE TWO (2) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.


     15.3     PARTY. FOR THE PURPOSES OF THIS SECTION 15, “PARTY” MEANS THE PARTY,
ITS SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE OWNERS DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS AND SUPPLIERS.


Section 16. Default and Termination


     16.1     Default. This Agreement may be terminated upon an Event of Default
by either party if such Event of Default is not cured by the defaulting party
within thirty (30) days of receipt of notice of the Default; provided, however,
that in the case of failure to pay invoices in accordance with Section 8 or in
the case of a violation of Sections 10, 11 or 12, this Agreement may be
terminated if such Event of Default is not cured within fifteen (15) days of
receipt of notice of the Default.


     16.2     Termination for Convenience. Either party may terminate this
Agreement at its convenience upon ninety (90) days’ prior written notice to the
other party.


     16.3     Continuation of Service to End Users. AWS shall have no further
obligation to provide Service to Customer upon termination of this Agreement.
However, in order to avoid disruption of Service to End Users, AWS may continue
Service directly to any End User who meets AWS’ credit requirements, and enters
into a contract for Service with AWS. From and after the termination date, AWS
may re-route calls using any Numbers previously assigned to


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Customer so that any attempts to access Service will result in connection
to AWS’ personnel, who will advise callers of the termination. Notwithstanding
anything in this Agreement to the contrary, but provided that AWS has met all
its obligations hereunder, AWS is not restricted in any way from providing
Service directly to any End User who may request that AWS do so.


     16.4     Survival of Obligations. Upon termination of this Agreement for any
reason, all amounts owing to AWS hereunder will become due and payable. Any
part of this Agreement that may reasonably be interpreted or construed as
surviving termination or which may be necessary or convenient for a party to
effectively enforce the terms of this Agreement will survive the termination of
this Agreement, including without limitation Sections 11 through 19.


     16.5     Cumulative Remedies. Termination of this Agreement, regardless of
cause or nature, shall be without prejudice to any other rights or remedies of
the parties. Termination of this Agreement with or without cause shall not
release either party from any liability which has already accrued to the other
party, or which thereafter may accrue in respect to any act or omission prior
to termination, or from any obligation which survives termination.


Section 17. Notices. Except as otherwise provided in this Agreement, all
notices required or permitted to be given hereunder shall be in writing and
shall be delivered (a) personally; (b) by certified mail, return receipt
requested; (c) by an overnight courier service having a record of receipt; or
(d) by facsimile, with a confirming copy sent by one of the other three methods
described in this sentence. Notices shall be addressed as follows:



	 	 	 
	(a)	 	
If to Customer:
	 	 	 
	 	 	
At Road, Inc.
	 	 	
47200 Bayside Parkway
	 	 	
Fremont, CA 94538
	 	 	
ATTN: Carrier Relations
	 	 	 
	with a copy to:	 	 
	 	 	 
	 	 	
At Road, Inc.
	 	 	
47200 Bayside Parkway
	 	 	
Fremont, CA 94538
	 	 	
ATTN: Contracts Administration
	 	 	 
	(b)	 	
If to AWS:
	 	 	 
	 	 	
AT&T Wireless Services, Inc.
	 	 	
8645 154th Avenue NE
	 	 	
Redmond, WA 98052



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Attn: Vice President, Business Development
	 	 	Mobile Multimedia Services

	 	 	 
	with a copy to:	 	 
	 	 	 
	 	 	AT&T Wireless Services, Inc.

	 	 	8645 154th Avenue NE

	 	 	Redmond, WA 98052

	 	 	Attn: Chief Counsel
– MMS










     Either party hereto may change its address by a notice given to the other
party hereto in the manner set forth above. All notices shall be effective on
receipt.


     CUSTOMER AGREES THAT NOTICE BY ELECTRONIC MAIL TO A DESIGNATED PERSON
SHALL BE SUFFICIENT FOR THE ANNOUNCEMENT OF NEW SERVICES, RATES, PROMOTIONS,
POLICIES AND PROCEDURES.


Section 18. Arbitration; Jurisdiction; Governing Law.


     18.1     State Law. The validity, construction, and performance of this
Agreement shall be governed by and interpreted in accordance with the laws of
the State of Washington.


     18.2     Arbitration Required. Except as stated in Section 18.3 or as
otherwise agreed by the parties, all claims and disputes relating in any way to
the performance, interpretation, validity, or breach of this Agreement shall be
referred to final and binding arbitration in accordance with the
J.A.M.S./Endispute arbitration rules and procedures (“Endispute rules”), as
amended by this Agreement. A single neutral arbitrator shall decide claims of
less than $100,000. All documents, materials, and information in the
possession of each party and in any way relevant to the claims or disputes
shall be made available to the other party for review and copying not later
than sixty (60) days after the notice of arbitration is served. To the extent
that either party would be required to make confidential information available
to the other, an agreement or an order shall be entered in the proceeding
protecting the confidentiality of and limiting access to such information
before either party is required to produce such information. Information
produced by either party shall be used exclusively in the arbitration or
litigation that may arise, and shall not otherwise be disclosed. The costs of
arbitration, including the fees and expenses of the arbitrator, shall be shared
equally by the parties unless the arbitration award provides otherwise. Each
party shall bear the cost of preparing and presenting its case. The parties
agree that this provision and the arbitrator’s authority to grant relief shall
be subject to the United States Arbitration Act, 9 U.S.C. 1-16 et seq.
(“USAA”), the provisions of this Agreement and the ABA-AAA Code of Ethics for
arbitrators in commercial disputes. The parties agree that the arbitrator
shall have no power or authority to make awards or issue orders of any kind
except as expressly


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permitted by this Agreement. The arbitrator’s decision shall follow the
plain meaning of the relevant documents and shall be final and binding. The
award may be confirmed and enforced in any court of competent jurisdiction.
All post-award proceedings shall be governed by the USAA. In no event shall
either party be entitled to punitive damages in any arbitration or judicial
proceeding and each party hereby waives its rights to any punitive damages. In
the event an arbitration panel or a court concludes that the punitive damages
waiver contained in the previous sentence is unenforceable, then the parties
agree that the court with subject matter jurisdiction over the confirmation of
the award shall have sole and exclusive jurisdiction to determine issues of
entitlement and amount of punitive damages. The arbitrators shall not have
subject matter jurisdiction to decide any issues relating to the statute of
limitations or amounts in excess of $100,000.00, exclusive of interests and
costs, and the parties hereby stipulate to stay the arbitration proceeding
(without the need of a bond) until any such issues in dispute are resolved.


     18.3     Court Proceedings/Venue. The parties hereby consent to the sole and
exclusive jurisdiction and venue of the state and federal courts located in
King County, Washington, for the following matters: (i) disputes relating to
the statute of limitations; (ii) contractual claims where the amount in dispute
(excluding interests and costs) exceeds $100,000.00; (iii) disputes relating to
any “non-contractual” claims (e.g., those not governed by Section 18.2); (iv)
claims for injunctive relief; and (v) the entry of a judgment confirming an
arbitrator’s award.


     18.4     Attorneys’ Fees. In the event an action (excluding an arbitration)
is commenced by either party to enforce the terms of this Agreement, the
substantially prevailing party in such action shall be entitled to its
reasonable costs and attorneys’ and expert witness’ fees incurred therein
through appeal. For purposes of this section, the efforts of in-house
attorneys and their staff shall be valued at rates prevailing in the market for
private practitioners.



	Section 19. General Provisions.



     19.1     Fair Dealing and Ethical Conduct. In all dealings with each other,
End Users and third parties, Customer and AWS will be governed by the highest
standards of honesty, integrity, fair dealing and ethical conduct.


     19.2     Compliance with Laws. AWS and Customer shall at all times comply in
all material respects with all laws, rules and regulations applicable to the
performance of this Agreement.


     19.3     Waiver. The waiver of any provision or default of this Agreement
will not constitute a waiver of any other provision or default. If any
provision of this Agreement is deemed to be unenforceable, the remaining
provisions will remain in full force and effect.


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     19.4      Force Majeure. Neither party will be liable for any loss, damage,
cost, delay or failure to perform resulting from causes beyond its reasonable
control including, but not limited to, acts of God, fires, floods, earthquakes,
strikes, insurrections, governmental orders, riots, lightning or storms, or
delays of suppliers or subcontractors for the same causes.



     19.5     No Agency. AWS and Customer are independent contracting parties.
This Agreement does not create any partnership, joint venture or agency between
the parties.


     19.6     Severability. Should any part of this Agreement for any reason be
declared invalid by court order or by any regulatory agency, such order shall
not affect the validity of any remaining portion; and the remaining portion of
the Agreement shall continue in full force and effect unless such order
materially alters the nature of the obligations of either party hereto. In
such event, this Agreement shall immediately terminate.


     19.7     Assignment. Except as provided in this Section, neither party may
assign or transfer this Agreement, or its rights or obligations hereunder,
without the prior written consent of the other party. Either party may assign
this Agreement, without the other’s consent, to (i) any Affiliate of the
assignor, or (ii) any person or entity that acquires the assignor or
substantially all of the assignor’s business through any merger, consolidation
or stock or asset purchase; provided that the assignee agrees in writing to be
bound by the provisions of this Agreement.


     19.8     Entire Agreement. This Agreement, which includes any specifically
identified exhibits, sets forth the entire agreement between the parties
concerning the subject matter hereof.


     19.9     Amendments. Except where a different time period is specifically
stated in this Agreement, AWS may amend this Agreement upon sixty (60) days’
notice to Customer. If AWS notifies Customer of an amendment to this Agreement
and such amendment is unacceptable to Customer, then Customer has the right to
terminate this Agreement upon thirty days’ notice given anytime prior to the
effective date of the amendment. Customer has no unilateral right to amend
this Agreement.


     19.10     Construction of Terms. This Agreement shall not be construed more
strongly against any party regardless of who is responsible for its preparation
or drafting.


     19.11     Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original agreement, but all of
which together shall constitute one and the same instrument.


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Section 20. Independent Investigation


     AWS and Customer acknowledge they have read this Agreement and understand
and accept all terms, conditions, and covenants. Customer acknowledges and
understands that AWS may at any time also be engaged directly or indirectly
through other resellers and through dealers or outlets of any kind, in
soliciting potential Subscribers for the Service or other services or products.
Customer acknowledges that it understands that it will not obtain any
exclusive rights under this Agreement, either with respect to a territory or
otherwise. Customer also acknowledges and understands that AWS may sell the
Service to others who may resell it. Customer has independently investigated
the business of providing wireless service and the profitability (if any) and
risks thereof and is not relying on any representation, guarantee, or statement
of AWS other than as set forth in this Agreement.


     Customer also acknowledges that AWS does not represent: (i) the amount of
profits, net or gross, that Customer can expect from its operations under this
Agreement or that Customer will derive income from the sale of AWS’ services
under this Agreement; (ii) that AWS will refund any payments made by Customer
to AWS under this Agreement except as otherwise provided herein; or (iii) that
AWS will provide a sales or marketing program that will enable Customer to
derive income under this agreement.


     Customer further acknowledges that, except as specifically set forth in
this Agreement, AWS does not make any representations regarding: (i) the
quantity or quality of Service to be sold by Customer; (ii) the provision by
AWS to Customer of training and management assistance; (iii) the size (other
than the geographic area), choice, potential, or demographic nature of an Area
or the number of other dealers or reselling customers that are or may in the
future operate in that Area; (iv) the termination, transfer, or renewal
provisions of this Agreement other than as set forth in the Agreement; or (v)
the sponsorship or participation of a primary marketer of trademark products or
services in Customer’s operations under this Agreement other than as may be set
forth in this Agreement.


     AWS acknowledges that Customer may at any time solicit potential customers
for wireless service provided by Customer directly or indirectly through
business relationships with entities competing with AWS.


EXHIBITS FOLLOW



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EXHIBIT A



Additional Terms Governing Resale of Wireless Data Services for Certified Data Resellers

on AWS’ GSM/GPRS Wireless Network




I.         Service Plans. For each active Number, Customer may select any of the
Service Plans referred to on the attached Schedule A-1. Customer acknowledges
receipt of all relevant information it needs respecting those Service Plans. If
a Service Plan requires a term commitment, the fee for early cancellation of
Service on that plan will be specified in the Service Plan description. The
fee will be applied on a monthly basis only to the extent that the number of
deactivations on such plans exceeds the number of activations on such plans
during the preceding six-month period.


II.        Minimum Order of SIMs Required. AWS will not be obligated to activate
Numbers on any Service Plan selected by Customer unless Customer places and
receives an initial order for at least * SIMs. Additional
SIMs may be provided under the terms of the Agreement on Customer’s request
only if such subsequent requests are for * SIMs. AWS
may charge the Customer a fee for each SIM.


III.      
Device Requirements. Unless otherwise stated, a GSM/GPRS device
(“Device”) and SIM is required for all Service Plans. The equipment must be
certified by AWS, approved by AWS for insertion of AWS SIMs, and compatible
with the Wireless System and AWS’ intelligent roaming database (IRDB).
Customer will assure that AWS has approved Device for use on the AWS GPRS
wireless data network prior to use on the AWS GPRS wireless data network.


IV.    Application Requirements. Customer will only activate Numbers on any
Service Plan for use with certified Applications. Prior to activating Numbers
on any Service Plan, Applications must pass all certification testing to the
standards of the Solution Certification Program. If an Application does not
pass certification, AWS will notify Customer of such failure. Customer will
then determine and correct any cause for the failure and resubmit the
Application for further testing until certified. In the event that no
Application is submitted by Customer for certification within 30 days of the
Effective Date or certified by AWS within 90 days of the Effective Date, AWS
may terminate this Agreement upon 10 days’ notice to Customer. Upon request by
AWS, Customer will make technical personnel available to assist in the
certification testing.


V.     Network Requirements. Customer will be required to obtain and pay for all
interconnection services required to connect Customer’s facilities to AWS’
Network. Customer will abide by all AWS policies and procedures for such
connections. Customer understands that




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the use of compression solutions may or may not impact the amount of kilobytes
for which it is billed.



	VI.	 	  Usage Charges.




	 	1.	 	Data Usage. Data usage charges will apply for data
transmissions, text messages, downloadables, alerts, and any other
information sent through the Network and associated with the Device.
Those charges are set forth in the applicable Service Plan. Unless
stated otherwise, all data will be calculated and billed in
kilobytes. Usage for each day will be rounded up to the next
kilobyte and the charge for each billing period will be rounded up
to the nearest cent. One megabyte equals 1024 kilobytes. One
kilobyte equals 1024 bytes.
	 
	 	2.	 	Dropped Transmissions. Data transmissions may be
involuntarily interrupted (“dropped”) for a variety of reasons
beyond the control of AWS. Dropped transmissions will be billed as
any other transmission. In addition, AWS may try to re-send a
dropped transmission, which will result in additional charges. If
Customer has a problem with dropped transmissions, Customer should
call the AWS Resale Support line. If AWS believes a credit is
appropriate, it may reduce the charges accordingly
	 
	 	3.	 	Roaming. Roaming charges apply when a Device is used outside
of the AWS Next Generation Network. Roaming rates are set forth on
the attached Schedule A-1. Lagging data records will be applied the
day they are received by AWS and not the date used.
	 
	 	4.	 	International Roaming. AWS reserves the right at any time to
restrict international data roaming to certain countries as it sees
fit. Customer acknowledges that some countries cannot be blocked
from international data roaming. International data roaming rates
are set forth on the attached Schedule A-1. Lagging data records
will be applied the day they are received by AWS and not the date
used.




	 VII.    Features. Feature charges will be billed on a monthly basis and will be
prorated for any billing cycle during which the feature is activated or
deactivated. AWS may limit the number of features and promotions that can be
assigned to a Number. 	
	 
	 VIII.   Customer Responsibilities.	 




	 	1.	 	Customer will lead all sales efforts
with the companies to which they are selling their
Bundled Solution (combination of Certified Application,
Service, and Device). This will include all lead



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	 	 	 	generation activities, qualification, pre-sales, and
post sales support.
	 
	 	2.	 	Customer will be responsible for all
terms, conditions and customer contract issues with
respect to the Bundled Solution.
	 
	 	3.	 	Customer will be responsible for all
billing, collection and settlements with its End-Users.
	 
	 	4.	 	Customer and its partners will be
responsible for the installation of all Customer Devices
and Certified Solutions to be used with the Service.
Customer will not activate any Device on the Service
that has not been certified and approved for the
Service.
	 
	 	5.	 	Customer will submit ICCIDs with all
required account information to AWS in accordance with
the policies and procedures defined by AWS.
	 
	 	6.	 	Customer will provide all Tier 1 and
Tier 2 customer care and support to End Users.




		
	 	Tier 1 is the first line of support for Customer’s End Users. This
typically would be an internal care group within the Customer’s
Customer Care organization. Tier 1 analysts seek to resolve general
issues surrounding:




		
	 	Device

Software or applications utilization

Account Activity questions




		
	 	Tier 2 support generally represents a Subject Matter Expert (“SME”)
team, well versed in the Customer’s services. Tier 2 analysts are
responsible for the isolation of issues not resolved in the Tier 1
environment. When isolation of the issue is completed, it should
be possible to identify the problem source. If the error has been
isolated to the AWS network environment, Tier 2 Customer’s SMEs
will escalate to a Tier 3 support group located within the AWS
Customer Care organization. This organization is responsible for:




		
	 	Network errors

Hardware issues

Engineering issues related to the network environment



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	IX.	 	AWS Responsibilities.




	 	1.	 	AWS will provide special purpose SIMs to Customer on a bulk
basis and in quantities as ordered by Customer. AWS may charge the
Customer a fee for each SIM. AWS will be responsible for activating
SIMs once the ICCID and all required account information is provided
from Customer in accordance with the policies and procedures defined
by AWS.
	 
	 	2.	 	AWS will provide Tier 3 customer care to Customer-designated
representatives, relating to the AWS GPRS network and
infrastructure.




		
	 	Tier 3 support is owned by AWS and exists within the AWS Customer
Care organization. This group receives incoming trouble tickets
from the Customer’s SME organization only after clear
identification and isolation of the issue with a determination that
the error lies within the AWS Span of Control.




	X.	 	Certified Data Reseller Discount Program




		
	 	1.     Eligibility. In order to receive the Certified Data Reseller Discount
described in this section, Customer must agree to a one-year commitment
on each Number. If a Number is deactivated prior to one-year commitment,
the applicable Termination Fee will apply.




		
	 	2.     Service Discount and MAC Contribution. AWS will provide Customer with
a discount on Service (the ‘Service Discount’) based upon its minimum
annual commitment of Service Revenues (“MAC”) in accordance with the
table set forth below. Customer’s MAC is *. Only Qualified Charges
will apply towards MAC. The Service Discount will be applied to
Customer’s Qualified Charges.




	 	 	 	 	 	 	 	 
	MAC	 	Service Discount
	
	 	

	*
	 	 	*	 	 
	*
	 	 	*	 	 
	*
	 	 	*	 	 
	*
	 	 	*	 	 
	*
	 	 	*	 	 
	*
	 	 	*	 	 



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	*	 	Confidential
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	 	*
	 	 	*	 
	 	*
	 	 	*	 
	 	*
	 	 	*	 
	 	*
	 	 	*	 
	 	*
	 	 	*	 
	 	*
	 	 	*	 
	 	*
	 	 	*	 
	 	*
	 	 	*	 
	 	*
	 	 	*	 







		
	     3.     Qualifying Revenue. Both for the purposes of determining the MAC and
for determining the amounts against which the Service Discount is
applied, AWS will include the following undiscounted charges occurring
from use of Service Plans: (a) monthly wireless access charges, (b) data
usage, (c) roaming charges, and (d) charges for additional wireless
service features such as SMS.
	 
	     4.     Non-qualifying Revenue. The MAC and Service Discount shall not apply
to or include the following charges: (a) one time charges for service
activations, (b) all taxes and (c) all other charges not described in
Qualifying Revenue above. AWS may also restrict charges incurred under
other Service Plans or discount programs from either contributing to the
MSR or qualifying for Service discounts or both. AWS agrees to advise
Customer when such restrictions affect Customer.
	 
	     5.     Timing of Credits. The Service Discount will be applied within 45
days after the end of the billing cycle to the account number(s).
	 
	     6.     Modification of Certified Data Reseller Discount Program. AWS may
modify the Certified Data Reseller Discount Program at any time in
accordance with the requirements of Section 19.9; provided that any
modification not adverse to Customer may be made effective upon notice
and will not give Customer the right to terminate this Agreement.
	 
	     7.     MAC Modification. Customer may modify its MAC after each Term Year.
Any such modification is subject to AWS’ consent, which will not be
unreasonably withheld, and the parties will memorialize the modification
in a signed writing. Customer must notify AWS of its desire to modify
the MAC within thirty (30) days after each term year; however, the
authorized modification will become effective as soon thereafter as
reasonably practicable.



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	 	     8.     
 Service Discount Reconciliation. If Customer fails to achieve the MAC
(as may be modified in accordance with X. 7 above), Customer will pay AWS
the difference between the amount of the Service Discount received by
Customer and the amount of the Service Discount for which the Customer
would have qualified considering Service Revenues actually received by
AWS during that Term Year (the “Reconciliation Obligation”). In the
event Customer owes Reconciliation Obligation, AWS may reduce Customer’s
Service Discount percentage by an amount sufficient to offset the
Reconciliation Obligation. The amount and duration of this Service
Discount reduction is at AWS’ sole discretion, provided that AWS will not
offset more than the total amount of the Reconciliation Obligation. In
the event the agreement is terminated, the Reconciliation Obligation will
be determined as of the termination date and any Reconciliation
Obligation owed by Customer will be paid to AWS within thirty (30) days.





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Schedule A-1



Wireless Data Service for Certified Data Resellers



Activation and Other Processes. Customer will follow the processes established
by AWS from time to time to activate, terminate or otherwise modify Service or,
if applicable, to purchase Equipment, provided that such processes will be
subject to mutual agreement, and the parties agree to negotiate mutually
agreeable processes in good faith. Any order for Service and/or Equipment that
Customer’s authorized representative submits to AWS will be binding upon
Customer pursuant to the terms and conditions of this Agreement. AWS may
reasonably rely on the authority of any person who executes an order on
Customer’s behalf.


Customer may choose from the following Service Plans. The exact rates and
availability of these Service Plans may vary by Area.



	 	 	 	 	 	 	 	 	 
	MRC	 	Included MB	 	Data Useage	 	US/CA Roaming	 	Intl Roaming
	
	 	
	 	
	 	
	 	

	*	 	*	 	*	 	*	 	*
	*	 	*	 	*	 	*	 	*
	*	 	*	 	*	 	*	 	*
	*	 	*	 	*	 	*	 	*
	*	 	*	 	*	 	*	 	*
	*	 	*	 	*	 	*	 	*
	*	 	*	 	*	 	*	 	*
	*	 	*	 	*	 	*	 	*




	*	 	Government Only Rate Plan



	 	 	 	A. SIM charge: There will be a
one-time SIM charge of * per IMSI
invoiced to Customer on the first month’s billing upon receipt of each
IMSI.
	 
	 	 	 	B.
A one-time activation fee of * applies to all activations
regardless of the rate plan chosen.
 
	 
	 	 	 	C. The rate for Standard Text
Messaging is * per message.
 
	 
	 	 	 	D. All fees are due within 30 days of date of invoice.
 
	 
	 	 	 	E. The Termination fee for all
rate plans is * per Number.
 
	 
	 	 	 	F. * rate plans are eligible for pooling within each
rate plan. There is an incremental cost of * per SIM/Subscriber per
month.




	 	 	 
	*	 	Confidential
material redacted and separately filed with the
SEC.