1
EXHIBIT 10.1
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R., SECTIONS 200.80(b)(4), 200.83
AND 230.406.
GENERAL MAGIC
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the "AGREEMENT") is made effective as of January
1, 2001 (the "EFFECTIVE DATE") by and between General Magic, Inc., a Delaware
corporation having a place of business at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000 ("MAGIC"), and OnStar Corporation, a Delaware corporation
having a place of business at 0000 Xxxxxxxxxx Xxxxxxx, Xxxx, Xxxxxxxx 00000
("ONSTAR"). OnStar and Magic may each be referred to herein as a "PARTY" and may
together be referred to herein as the "PARTIES."
BACKGROUND
A. Magic has designed, developed, and deployed a voice-accessible service
known as the Portico virtual assistant service (the "PORTICO SERVICE"). In
addition, Magic has expertise in building and operating voice-accessible network
services.
B. OnStar licensed from Magic a customized version of the Portico Service
(the "VIRTUAL ADVISOR SERVICE") pursuant to that certain Development and License
Agreement between Magic and OnStar, dated as of November 9, 1999 (the
"DEVELOPMENT AGREEMENT").
C. The Development Agreement contemplates that Magic will initially
operate the Virtual Advisor Service for OnStar.
D. OnStar desires Magic, and Magic is willing, to operate the Virtual
Advisor Service on the terms and conditions set forth in this Agreement.
The Parties therefore agree as follows:
AGREEMENT
I. DEFINITIONS
Except as otherwise provided herein, defined terms shall have the meaning
ascribed to them in the Development Agreement.
II. VIRTUAL ADVISOR SERVICES
2.1 SERVICES. Magic will operate the Virtual Advisor Service in Magic's
network operations center (the "NETWORK OPERATIONS CENTER"), and in connection
therewith will use commercially reasonable efforts to (i) operate the Virtual
Advisor Service twenty-four hours a day, seven days a week, for the term of this
2
Agreement; provided, however, that Magic may suspend such operation to conduct
routine scheduled maintenance of its Network Operations Center or the Virtual
Advisor Service upon ten (10) days prior notice to and approval from OnStar
(which approval shall not be unreasonably withheld or delayed), (ii) contract
with third party content providers for the provision of [**], and [**]
information to the Virtual Advisor Service, and for such other information as
the parties may agree, (iii) maintain the service levels set forth in Exhibit A
(Service Level Agreement) and (iv) provide second level customer support as set
forth in Exhibit B (Customer Support) (collectively, the "SERVICES"). Exhibit B
shall be updated from time to time upon the mutual agreement of the parties.
2.2 MAGIC'S OBLIGATIONS.
2.2.1 Compliance with Law.
Magic represents, warrants and covenants to OnStar that the performance of
its obligations hereunder will not violate any applicable laws or cause a breach
of any agreements with any third parties.
2.2.2 Commitment of Resources.
Magic will provide such resources and utilize such employees as it deems
commercially reasonable to perform the Services in accordance with the service
levels set forth in Exhibit A (Service Level Agreement).
2.2.3 Manner of Performance.
The manner and means used by Magic to perform the Services desired by
OnStar are in the sole discretion and control of Magic.
2.2.4 Place of Performance.
All work to be performed by Magic in connection with the Services shall be
conducted at Magic's Sunnyvale, California facility; provided, however, that
Magic may conduct all or a portion of services from another facility or
facilities upon prior notice to and approval from OnStar (which approval shall
not be unreasonably withheld or delayed).
2.2.5 Service Level Limits.
The Parties acknowledge that Magic's agreement to provide the Services at
the compensation set forth in Article IV is predicated on the assumption that
the Virtual Advisor Service contains those functions and features defined in the
document entitled "OnStar Virtual Advisor Phase 1.1 Product Requirements
Document, Version 1.6," dated September 26, 2000 (the "September 26 PRD"). To
the extent the parties agree to modify the September 26 PRD, they will negotiate
in good faith any warranted changes to the compensation provided to General
Magic under Article IV.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-2-
3
2.2.6 Breach of Magic's Warranties and Covenants.
In the event of any material breach by Magic of the foregoing warranties or
covenants, in addition to other remedies available at law or in equity, OnStar
will have the right, in its sole discretion, to suspend its use of the Services
if deemed reasonably necessary by OnStar to prevent any harm to OnStar, its
customers or its business. OnStar must provide notice and an opportunity to cure
before suspending Services in accordance with the terms of this Agreement. The
Monthly Service Fee will be adjusted on a prorated basis for any period that
Services are suspended under this Section 2.2.6; provided, however, that if the
Services are suspended by OnStar for a period exceeding [**], or exceeding [**],
and OnStar has not issued Magic a notice of its intention to terminate this
Agreement for cause pursuant to Section 5.2, Magic shall provide written notice
to OnStar that such action shall be deemed a Termination for Convenience under
Section 5.2, effective five (5) days after said notice, unless Services are
recommenced or the parties agree otherwise in writing.
2.3 ONSTAR'S OBLIGATIONS.
2.3.1 Compliance with Law. OnStar represents, warrants and covenants
to Magic that the performance of its obligations hereunder and the use of the
Virtual Advisor Service by Subscribers and other OnStar users will not violate
any applicable laws, or cause a breach of any agreements with any third parties
or unreasonably interfere with the use of Magic's services by other customers of
Magic.
2.3.2 Responsibility for Online Conduct. OnStar acknowledges that
Magic will exercise no control whatsoever over the substance of the information
passing through the Network Operations Center, such as emails and content
secured from third party providers pursuant to Section 2.1(ii) of this
Agreement. Notwithstanding the foregoing, nothing in this Section 2.3.2 shall be
construed to limit Magic's obligation to OnStar pursuant to Sections 2.1(ii),
(iii) or (iv), including its obligation to properly deliver to the Virtual
Advisor Service content secured from third party providers, and to promptly take
all steps reasonably necessary to correct interruptions or failures in the
delivery to General Magic of content secured from third party providers.
2.3.3 Breach of OnStar Warranties and Covenants. In the event of any
breach by OnStar of the foregoing warranties or covenants, in addition to any
other remedies available at law or in equity, Magic will have the right, in its
sole reasonable discretion, to suspend the Services if deemed reasonably
necessary by Magic to prevent any harm to Magic, its customers or its business.
Before suspending the Services, Magic will provide OnStar notice and, to the
extent possible, an opportunity to cure any such breach. In the event Services
are suspended, Magic will promptly recommence the Services once the breach is
cured.
2.4 SERVICE MODIFICATIONS. In the event that OnStar desires at any time to
deploy modifications of the OnStar Items on the Virtual Advisor Service, OnStar
and Magic will cooperate with one another to deploy such modifications in a
reasonably
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-3-
4
prompt fashion; provided, however, that OnStar will have access to the Network
Operations Center only with the prior written consent of Magic (which consent
shall not be unreasonably withheld or delayed).
III. LICENSE GRANTS AND OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
3.1 LICENSE GRANT BY ONSTAR.
3.1.1 License of OnStar Technology and Intellectual Property Rights.
OnStar grants Magic a royalty-free, non-exclusive, world-wide license under all
applicable Intellectual Property Rights to use, reproduce, perform, display,
modify and create Improvements to the OnStar Background Technology and the
OnStar Items for the purpose of performing the Services during the term of this
Agreement.
3.1.2 Authority. OnStar represents and warrants that it has obtained
all necessary permissions, licenses and/or consents for the license of all
third-party Intellectual Property Rights granted to Magic under this Agreement.
3.1.3 Ownership. As between the Parties, the Development Agreement
governs ownership of the technologies that are the subject of this Agreement. In
the event of any inconsistency between this Agreement and the Development
Agreement with respect to the ownership of Intellectual Property Rights, the
Development Agreement shall be controlling.
3.2 GENERAL SKILLS AND KNOWLEDGE. Notwithstanding anything to the contrary
in this Agreement, neither party will be prohibited or enjoined at any time by
the other party from utilizing any skills or knowledge of a general nature
acquired during the course of providing the Services, including, without
limitation, information publicly known or available or that could reasonably be
acquired in performing similar work.
IV. PAYMENTS AND PAYMENT TERMS
4.1 FEES AND EXPENSES.
4.1.1 Monthly Service Fees. OnStar shall pay to Magic a monthly
service fee as set forth in Exhibit C (Monthly Service Fees) hereto (the
"MONTHLY SERVICE FEE"). On or before the 15th day of each calendar month, Magic
shall invoice OnStar the Monthly Service Fee for the immediately preceding
calendar month. The invoice shall specify the dates of service. OnStar will make
payment of each such invoice on or before the second day of the second month
following receipt of the services by OnStar. For example, if service is provided
in October and an invoice is issued to OnStar (showing the dates of service) on
or before November 15th, payment of all non-disputed amounts would be made by
December 2nd.
4.1.2 Expenses. OnStar shall reimburse Magic for actual, reasonable
travel and out-of-pocket expenses incurred (including lodging, meals and related
incidental expenses) in
-4-
5
connection with the provision of the Services or at the request of OnStar, if
such provision must be performed away from Magic's facilities. Such expenses
shall be reimbursed in accordance with OnStar's travel and expense guidelines,
attached hereto as Exhibit D (OnStar Travel Guidelines).
4.2 PAYMENT TERMS.
4.2.1 Currency. All sums due or payable under this Agreement shall be
paid in the United States in U.S. dollars.
4.2.2 Taxes. Fees are exclusive of all taxes, levies or duties, and
OnStar shall be responsible for the payment of the same, except for taxes based
on Magic's net income. In the event that Magic has the legal obligation to pay
or collect taxes for which OnStar is responsible pursuant to this Section 4.2.2,
the appropriate amount shall be invoiced to and paid by OnStar unless OnStar
provides Magic with a valid tax exemption certificate authorized by the
appropriate taxing authority.
V. TERM AND TERMINATION
5.1 TERM. The initial term of this Agreement will commence on the
Effective Date and will terminate on the second anniversary of the Launch Date;
provided, however, that this Agreement shall automatically renew for [**] unless
either Party gives the other written notice of nonrenewal not less than [**]
prior to the expiration of the then-current term.
5.2 TERMINATION. This Agreement may be terminated by either Party for
cause upon written notice to the other Party if (i) the other Party has
committed a material breach of this Agreement and (ii) the other Party has not
cured such material breach within [**] after written notice of such material
breach. In addition, OnStar may terminate this Agreement at any time [**]
following the Launch Date upon [**] prior written notice to Magic ("TERMINATION
FOR CONVENIENCE"); provided, however, that concurrently with such notice, OnStar
shall pay to Magic a termination fee totaling [**].
5.3 Termination for Change of Control of General Magic. In the event (i)
of a sale of all or substantially all of the assets of Magic; or (ii) any
"person" (as the term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), other than a trustee or
other fiduciary holding securities of Magic under an employee benefit plan of
Magic, becomes the "beneficial owner" (as defined in Rule 13d-3 promulgated
under the Exchange Act), directly or indirectly, of securities of Magic
representing 50% or more of the outstanding shares of common stock of the
company, or representing 35% or more of the combined voting power of the
company's then outstanding securities entitled to vote generally in the election
of directors, where OnStar reasonably determines, in its sole discretion, that
any such event has created a substantial uncertainty as to Magic's continued
ability to perform the Services or a conflict of interest between Magic and
OnStar, OnStar may terminate this Agreement on
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
-5-
6
at least 60 days notice to Magic, and such termination shall not be deemed a
Termination for Convenience.
5.4 Termination for Insolvency. In the event that either party is unable to
pay its debts generally as they come due or is declared insolvent or bankrupt,
is the subject of any proceedings relating to its liquidation, insolvency or for
the appointment of a receiver or similar officer for it, makes an assignment for
the benefit of all or substantially all of its creditors, or enters into an
agreement for the composition, extension, or readjustment of all or
substantially all of its obligations, then the other party hereto may, by giving
written notice thereof to such party, terminate the Agreement as of the date
specified in the notice of termination, and such termination shall not be deemed
a Termination for Convenience.
5.5 Survival. The terms of this Agreement that by their sense and context
are intended to survive shall survive expiration or termination of
this Agreement, including Articles I (Definitions), VI (Limited
Warranties and Exceptions for Magic Services), VII (Indemnification
and Liabilities), VIII (Dispute Resolution) and IX (Miscellaneous).
VI. LIMITED WARRANTIES AND EXCEPTIONS FOR MAGIC SERVICES
6.1 Express Warranty. Magic warrants (i) that it will use reasonable
commercial efforts to achieve the service levels set forth in the Service Level
Agreement attached to this Agreement as Exhibit A and (ii) that it will perform
the Services in a manner consistent with industry standards reasonably
applicable to the performance thereof.
6.2 No Other Warranty. Except for the express warranty set forth in
Section 6.1 hereof, the Services are provided on an "AS IS" basis, and OnStar's
use of the Services is at its own risk. Magic does not warrant that the Services
will be uninterrupted, error-free, or completely secure or that the Services
will meet all of OnStar's requirements. Magic does not make, and hereby
disclaims, any and all other express and/or implied warranties, including, but
not limited to, warranties of merchantability, fitness for a particular purpose,
noninfringement and title, and any warranties arising from a course of dealing,
usage or trade practice. Magic makes no warranty as to the results that may be
obtained from use of the Services or the accuracy or reliability of any
transactions conducted or information, goods or services obtained through the
Services (including content provided by third parties).
6.3 Disclaimer of Actions Caused by and/or Under the Control of Third
Parties. Magic does not and cannot control the flow of data to or from Magic's
Network Operations Center. Such flow depends in large part on the performance of
Internet and telecommunications services provided or controlled by third
parties. At times, actions or inactions of such third parties can impair or
disrupt OnStar's connections to the Internet (or portions thereof) and/or to the
telecommunications
-6-
7
networks (or portions thereof). Although Magic will use commercially reasonable
efforts to take all actions it deems appropriate to remedy and avoid such
events, Magic cannot guarantee that such events will not occur. Accordingly,
Magic disclaims any and all liability resulting from or related to such events.
Notwithstanding the foregoing, Magic will notify OnStar of any such event
promptly upon discovery thereof and use reasonable commercial efforts to ensure
uninterrupted use of the Services in accordance with the service levels set
forth in Exhibit A (Service Level Agreement).
6.4 Warranty Remedies. In the event Magic does not meet the service levels
or its warranty obligations, Magic shall grant OnStar a service level credit as
calculated pursuant to Exhibit C (Monthly Service Fees).
6.5 Warranty Claims. In order to receive warranty remedies, deficiencies
in the Services must be reported to Magic in writing within sixty (60) calendar
days of the discovery thereof by OnStar or its agents.
VII. INDEMNIFICATION AND LIABILITIES
Each of the Parties hereto shall be entitled to indemnity from the other on
the terms and subject to the conditions and limitations provided in Sections 9.1
through 9.9 of the Development Agreement, which are incorporated herein mutatis
mutandis by this reference.
VIII. DISPUTE RESOLUTION
Any controversy or claim arising out of, or relating to, this Agreement,
including questions concerning the scope and applicability of this Article shall
be resolved in accordance with Sections 11.1 through 11.3 of the Development
Agreement, which are incorporated herein mutatis mutandis by this reference.
IX. MISCELLANEOUS
9.1 Relationship of Parties. Nothing in this Agreement will be construed
as creating any agency, partnership, or other form of joint enterprise between
the parties. Neither Party will have the authority to act or create any binding
obligation on behalf of the other Party, nor will either Party represent to any
third party that it has the authority to act or create any binding obligation on
behalf of the other Party.
9.2 No Third Party Beneficiaries. Magic and OnStar agree that, except as
otherwise expressly provided in this Agreement, there shall be no third-party
beneficiaries to this Agreement, including but not limited to any insurance
providers for either Party or the customers or Subscribers of OnStar.
9.3 Marketing. OnStar agrees that during the term of this Agreement Magic
may publicly refer to OnStar, orally and in writing, as a customer of Magic in
words substantially to such effect.
-7-
8
9.4 Notices. All notices, consents, waivers, and other communications
intended to have legal effect under this Agreement must be in writing, must be
delivered to the other Party at the address set forth at the top of this
Agreement by personal delivery, certified mail (postage pre-paid), or a
nationally recognized overnight courier, and will be effective upon receipt (or
when delivery is refused). Any such notices must be addressed to the attention
of the other Party's General Counsel. Each Party may change its address for
receipt of notices by giving notice of the new address to the other Party.
9.5 Governing Law. This Agreement is made under and will be governed by
and construed in accordance with the laws of the State of New York (except that
body of law controlling conflicts of law).
9.6 Severability. In the event any provision of this Agreement is held by
a tribunal of competent jurisdiction to be contrary to the law, such
unenforceability or invalidity will not render this Agreement unenforceable or
invalid as a whole, the remaining provisions of this Agreement will remain in
full force and effect and such provision will be changed and interpreted so as
to best accomplish the objectives of such unenforceable or invalid provision
within the limits of applicable law or applicable court decision.
9.7 Waiver. The waiver of any breach or default under any provision of
this Agreement will not constitute a waiver of any subsequent breach or default
of such provision.
9.8 Assignment. Neither this Agreement nor any rights or obligations of
either Party under this Agreement may be assigned in whole or in part without
the prior written consent of the other Party except (a) Magic may assign this
entire Agreement in connection with a merger or sale of all or substantially all
of its business or assets to a third party that agrees in writing to assume this
Agreement, and (b) OnStar may assign any or all of its rights under this
Agreement to any of its Affiliates. Any attempted assignment in violation of the
preceding sentence will be void. This Agreement will bind and inure to the
benefit of each Party's successors and permitted assigns.
9.9 Force Majeure.
(a) Except as provided in Section 9.9(b) below, Magic will not be
liable for any failure or delay in its performance under this Agreement due to
any cause beyond its control, including but not limited to: acts of God, fire,
explosion, vandalism, cable cut, storm, extreme temperatures, earthquake, flood,
embargo, sabotage, failure of the Internet, failure of any telecommunications
networks or other similar happenstances; any law, order, regulation, direction,
action or request of the United States government, or of any other government,
including state and local governments having jurisdiction over either of the
parties, or of any department, agency, commission, court, bureau, corporation or
other instrumentality of any one or more said governments or of any civil or
military authority; national emergencies, insurrection, riots, wars, or strikes,
lock-outs,
-8-
9
work stoppages or other labor difficulties; actions or inactions of a
third-party provider or operator of facilities or services employed in provision
of the Service, or any other conditions or circumstances beyond the sole control
of Magic which impede or affect the Services or the transmission of Internet or
telecommunications services.
(b) If any failure of performance on the part of Magic described in
Section 9.9(a) shall be: (i) for [**] or less, then this Agreement shall remain
in effect, but OnStar shall [**] for that portion of the Services affected for
the period of such failure of performance; or (ii) for more than [**], then
OnStar may terminate this Agreement in its entirety for cause pursuant to
Section 5.2 (Termination) hereof.
9.10 Non-Solicitation. During the Term of this Agreement and for [**]
thereafter, neither Party may solicit, directly or indirectly, any employee of
the other Party, or hire, as an employee or independent contractor or otherwise,
any person who at that time is, or who in the proceeding [**] was, an employee
of the other Party. It is understood that general employment advertisements not
targeted at the other Party's employees will not constitute a breach of this
Section 9.10.
9.11 Construction. The section headings appearing in this Agreement are
inserted as a matter of convenience and in no way define, limit, construe, or
describe the scope or extent of such section or in any way affect this
Agreement. Unless otherwise expressly stated, when used in this Agreement the
word "INCLUDING" means "INCLUDING BUT NOT LIMITED TO." Each reference to an
"ARTICLE" is a reference to an article of this Agreement, unless otherwise
specified. Each reference to a "SECTION" is a reference to a section in this
Agreement, unless otherwise specified. Each Party represents that it has had the
opportunity to participate in the preparation of this Agreement and hence the
Parties agree that the rule of construction that ambiguities be resolved against
the drafting party will not apply to this Agreement.
9.12 Entire Agreement and Amendment. This Agreement and the Development
Agreement, together with the Exhibits thereto, completely and exclusively state
the agreement of the Parties regarding its subject matter. Except for the
Development Agreement, this Agreement supersedes, and its terms govern, all
prior understandings, agreements, or other communications between the Parties,
oral or written, regarding such subject matter. This Agreement may be executed
in two or more counterparts, each of which will be deemed an original, but all
of which together shall constitute one and the same instrument. Once signed, any
reproduction of this Agreement made by reliable means (e.g., photocopy,
facsimile) is considered an original. This Agreement may be changed only by a
written document signed by authorized representatives of both Parties in
accordance with this Section 9.12. For purposes of this Agreement, the term
"WRITTEN" means anything reduced to a tangible form by a Party, including a
printed or hand written document, email or other electronic format.
[The remainder of this page is intentionally left blank.]
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
-9-
10
Authorized representatives of OnStar and Magic have read the foregoing and
all documents incorporated therein and agree and accept such terms effective as
of the date first above written.
GENERAL MAGIC, INC.,
a Delaware corporation
By: /s/ X. X. Xxxxxx
-------------------
Name: X. X. Xxxxxx
Title: CEO
ONSTAR CORPORATION,
a Delaware corporation
By: /s/ X. X. Xxxxx
------------------
Name: X. X. Xxxxx
Title: Vice President
-10-
11
Exhibit A
EXHIBIT A
SERVICE LEVELS
1. This Section sets forth the descriptions of the [**].
1.1. [**]
1.1.a. DEFINITION. The percentage of [**], that the Magic
Operations Center in support of OnStar is available to
accept and successfully [**] each [**].
1.1.b. MEASURED. This is measured by Magic through the [**].
1.2. [**]
1.2.a. DEFINITION. The percentage of [**], that the Magic
Operations Center in support of OnStar is available to
deliver each of the [**] that [**] the [**] at any point
in time. At launch the [**] that [**] the OnStar Virtual
Advisor are: [**].
1.2.b. MEASURED. This is measured by Magic through the [**].
1.3. [**]
1.3.a. DEFINITION. The percentage of [**] those [**], that
[**]. This allows the [**] of [**] or [**].
1.3.b. MEASURED. This is measured by Magic based on the [**]
for the Virtual Advisor Service.
1.4. [**]
1.4.a. DEFINITION. The percentage of [**] each [**] by the
OnStar Virtual Advisor system.
1.4.b. MEASURED. This is measured through [**] by Magic based
on [**].
2. Magic will measure each of the [**] as provided above, commencing with
the Effective Date. Service Level Measurement Reports will be provided
to OnStar [**] detailing [**]. [**] Service Level Measure Reports will
be provided to OnStar before the [**].
3. An [**] will be held on the [**] between OnStar and General Magic.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
12
4. The following table sets forth the [**] for Magic's performance with
respect to each [**]. Within [**], the parties will meet to review
Magic's performance with respect to each [**], and to [**].
--------------------- ---------- ---------- -----------
[**] [**] [**] [**]
--------------------- ---------- ---------- -----------
[**] [**] [**] [**]
--------------------- ---------- ---------- -----------
[**] [**] [**] [**]
--------------------- ---------- ---------- -----------
[**] [**] [**] [**]
--------------------- ---------- ---------- -----------
[**] [**] [**] [**]
--------------------- ---------- ---------- -----------
5. Not more than once each calendar quarter, OnStar may propose the
addition or deletion of one or more [**] upon written notice to Magic.
OnStar will provide such written notice to Magic at least 45 days prior
to the [**] measurement quarter for [**]. [**] will [**] concerning the
proposal promptly following receipt of the notice, resulting in a [**]
regarding the [**] to be added or deleted, and, where the proposal
contemplates addition of a [**], the [**] of [**], the [**], and the
[**] of the [**].
6. OnStar will authorize [**] to provide Magic [**] for the [**] within ten
(10) days of the beginning of each month for the preceding month.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
Exhibit A
13
EXHIBIT B
CUSTOMER SUPPORT
See attached.
Exhibit B
14
EXHIBIT C
MONTHLY SERVICE FEE
Commencing January 1, 2001, and for so long as utilization of the Virtual
Advisor Service does not exceed [**], the Monthly Service Fee will be US$[**]
per month. When utilization exceeds [**], the Monthly Service Fee shall be
determined by reference to the following table.
--------------------------------------------------------------------------------
MINUTES OF USE/MONTH INCREMENTAL PER MINUTE RATE RANGE OF MONTHLY FEE
--------------------- --------------------------- ----------------------
[**] [**] [**]
--------------------- --------------------------- ----------------------
[**] [**] [**]
--------------------- --------------------------- ----------------------
[**] [**] [**]
--------------------- --------------------------- ----------------------
[**] [**] [**]
--------------------- --------------------------- ----------------------
[**] [**] [**]
--------------------- --------------------------- ----------------------
[**] [**] [**]
--------------------- --------------------------- ----------------------
[**] [**] [**]
--------------------- --------------------------- ----------------------
[**] [**] [**]
--------------------- --------------------------- ----------------------
[**] [**] [**]
--------------------- --------------------------- ----------------------
[**] [**] [**]
--------------------- --------------------------- ----------------------
[**] [**] [**]
--------------------- --------------------------- ----------------------
[**] [**] [**]
--------------------------------------------------------------------------------
[**]
Commencing [**], for any [**] that Magic fails to meet its [**], determined as
provided in Exhibit A to this Agreement, OnStar will be entitled to [**] based
on the following definitions:
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
Exhibit C
15
Measurement Period
Measurements for each [**] will be collected and available to be reported on a
[**] basis and a [**] basis, except that the measurement for the [**] shall be
collected and available to be reported on a [**] basis. [**] will be based on
[**] performance (except [**] for **], which will be based on [**] performance),
and [**] will be based on [**] performance.
[**]
A [**] is equal to [**] of the [**] for the [**] in [**] the [**] is not met.
For example, at the start of the hosting agreement the [**] will be equal to
[**]* [**], or [**].
[**] are calculated based on [**] performance (other than for [**], which is
calculated based on [**]performance). For each [**] (or [**], as applicable) the
expected [**] for a given [**] is not met, but the [**], a [**] will be [**] to
[**]of the [**]. For each [**] (or [**], as applicable) the [**] for a given
[**] is not met, a [**] will [**] to [**]of the [**].
[**]
[**] will be determined pursuant to Exhibit A. For the purpose of [**] and [**],
they will include [**] and [**] levels of performance for each of the [**].
[**]
[**] are based on [**]performance and apply to [**]. [**] for performance
[**]the [**] can [**] up to [**]. [**] for performance between the [**] and
[**]can be [**] up to [**]. [**] are available for performance that [**] or [**]
the [**] of performance over the [**]. The [**] is fixed and based on each [**]
of the [**].
Example (for purpose of illustration only):
[**]: [**] per [**] (A) [**] = [**]* [**]= [**]
[**]:
[**] - [**]
[**] - [**]
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
Exhibit C
16
Performance: (B) [**] at [**]- less than [**], resulting in the [**] of a [**]
(C) [**] at [**]- less than [**] and greater than [**], resulting
in the [**] of [**]of the [**] for each of the [**] (D) [**]
performance at [**]- greater than [**], resulting in an [**],
[**] below
[**]: [**] + [**]= [**]
[**]: [**] + [**]= [**]
[**]: [**]
[**] on [**]
OnStar shall not be entitled to a [**] of (i) [**] of the [**] for any [**] on
which Magic fails to [**] a [**] (or, with respect to [**], for any [**] in
which Magic fails to [**] its [**]), regardless of whether Magic fails to [**]
or more [**] for that [**] or [**], as applicable, or (ii) a total of [**] of
the [**] for any [**] with respect to which Magic fails to [**] or more [**].
Notwithstanding the foregoing, for the [**] of [**], OnStar shall not be
entitled to a [**] of [**] and [**], respectively, of the [**] for any [**] with
respect to which Magic fails to [**] or more [**]. In addition, OnStar shall not
be entitled to a [**] in the event that failure to [**] any [**] is attributable
to a force majeure event, as described in Section 9.9(a) of the Agreement,
including any failure resulting from a failure or change in facilities, systems
or equipment maintained by OnStar, its vendors or suppliers (other than Magic).
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
Exhibit C
17
EXHIBIT D
TRAVEL GUIDELINES
THE FOLLOWING ARE GUIDELINES FOR REPORTING OF BUSINESS-RELATED TRAVEL EXPENSES:
Original copies of receipts are required for all airfare, hotel, car rental and
transportation expenditures, plus any individual expenditures such as parking,
gasoline purchases, highway tolls, etc. Include the last copy of the airline
ticket. Receipts are to be obtained where customarily available and attached to
the expense report submitted by Seller. Receipts other than restaurant tabs are
required for expenditures of $25.00 or more. All travel and per diem for which
Magic seeks reimbursement will be submitted to OnStar on Magic's standard
vouchers with substantiating documentation and will accompany the monthly
invoices. The employee, his or her immediate supervisor and an authorized OnStar
representative must sign the expense report form.
Normally a maximum of two members are permitted to travel on the same business
trip. If more than two members are required, approval must be obtained in
advance. Magic is responsible for making travel reservations, hotel/motel
accommodations and rental cars.
Coach fare is the only authorized form of domestic air travel. Business class is
the authorized form for overseas travel. Taxis, hotel shuttles or airport limos
should be used when a reduction in expense can be obtained versus a rental car.
Personal car mileage is reimbursed for miles driven in excess of miles commuted
to and from the driver's normal workplace at a rate of $.325 per mile. Parking
fees and highway tolls are reimbursable items, and receipts are required.
Traffic violations are NOT reimbursable.
Itemize hotel xxxx by day including tax. Separate charges (i.e. telephone,
restaurant, etc.) should be shown on the appropriate expense report line. Hotel
movies or alcoholic beverages are personal expenses and should NOT be included
on the expense report.
Meal charges should reflect actual expenses incurred and will be considered for
approval based on trip location and reasonableness (there is no set allowance
per day). Any meal expense greater than $15.00 requires a receipt and a business
purpose. Meals will NOT be reimbursed for non-overnight trips except in the case
of late return or early arrival occasioned by travel outside normal working
hours. When claiming dinner on the last day of travel, the traveler must return
after 7:00 p.m. (flight arrival time). Breakfast on the first day of the trip
should be at the traveler's expense, unless he or she leaves before 7:00 a.m.
(flight departure). When claiming breakfast on the first day of a trip or dinner
on the last day of a trip, the traveler must list the time departure and/or
return in order to be reimbursed.
All telephone charges require an explanation of person called and the nature of
expense. Reasonable valet and laundry expenses are authorized for stays
exceeding five consecutive days or in case of emergency.
Home computer expenses including hardware, software, and data/phone lines are
NOT reimbursable expenses. Political contributions/donations of any type are NOT
reimbursable.
All expenses must be reasonable and are subject to audit.
Exhibit D
