STRATEGIC ALLIANCE AGREEMENT
THIS STRATEGIC ALLIANCE AGREEMENT, is made and entered into this
_____ day of January, 2000 (the "Alliance Agreement"), by and between
WORLDWIDE DEDICATED SERVICES, INC., a Delaware corporation ("WDS") ,
UPS LOGISTICS GROUP, INC., a Delaware corporation ("Logistics"), which
is a wholly owned subsidiary of United Parcel Service of America, Inc.
("United Parcel") which is a wholly owned subsidiary of United Parcel
Service, Inc., a Delaware corporation ("UPS"), XXXXXXX LEASING CORP.,
a Delaware corporation ("Xxxxxxx"), and XXXXXXX TRUCK LEASING CORP.,
a Delaware corporation ("RTL, and together with WDS, Logistics and
Xxxxxxx sometimes referred to herein individually as a "Party" and
collectively as the "Parties").
W I T N E S S E T H:
WHEREAS, WDS is engaged in the business of providing vehicles,
drivers, dispatch services and route planning for customers;
WHEREAS, prior to the execution and delivery of this Alliance
Agreement, UPS Truck Leasing, Inc. ("UPS Truck Leasing"), a wholly
owned subsidiary of Logistics, had supplied WDS with vehicles and
certain maintenance services used in connection with its business;
WHEREAS, simultaneously with the execution and delivery of this
Alliance Agreement, Xxxxxxx and UPS have consummated the transactions
under a Stock Purchase Agreement (the "Stock Purchase Agreement"),
pursuant to which UPS Truck Leasing has been transferred to Xxxxxxx;
WHEREAS, prior to the execution and delivery of this Alliance
Agreement, Xxxxxxx had been engaged in a logistics management and
dedicated logistics business through Xxxxxxx Logistics, Inc. ("Xxxxxxx
Logistics");
WHEREAS, simultaneously with the execution and delivery of this
Alliance Agreement, certain Affiliates of Xxxxxxx and Logistics have
consummated an Asset Purchase Agreement (the "Logistics Agreement"),
pursuant to which an Affiliate of Logistics has purchased
substantially all of the assets of Xxxxxxx Logistics;
WHEREAS, WDS and Xxxxxxx have agreed to form a strategic alliance
(the "Alliance") that, based on the terms of this Alliance Agreement,
will promote the Logistics Group as the preferred provider of
logistics management and dedicated logistics services to customers of
Xxxxxxx' truck leasing services and will promote Xxxxxxx as the
preferred provider of truck leasing and related services to customers
of WDS' dedicated logistics services; and
WHEREAS, WDS and Xxxxxxx are entering into this Alliance
Agreement in order to provide a flexible and effective framework to
govern the Alliance, and Logistics and RTL are entering into this
Agreement for the purpose of extending the brand licenses referred to
in Sections 4.5 and 4.6.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending
to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. The following defined terms used in this
Alliance Agreement will have the meanings specified below.
"Affiliate" shall mean, with respect to any Person, (i) any
Person directly or indirectly controlling, controlled by or under
common control with such Person, (ii) any officer, director, general
partner, managing member or trustee of such Person, or (iii) any
Person who is an officer, director, general partner, managing member
or trustee of any Person described in clauses (i) or (ii) of this
sentence. For purposes of this definition, the term "control,"
(including, with correlative meanings, the terms "controlling,"
"controlled by" or "under common control with") means the possession,
direct or indirect, of the power to direct or cause the direction of
the management and policies of a Person, whether through the ownership
of voting securities, by contract or otherwise. Notwithstanding any
implication to the contrary contained in this definition, for purposes
of this Agreement, the following entities will not be deemed to be
Affiliates of Xxxxxxx: Xxxxxxx Systems, Inc.; Dover Downs
Entertainment, Inc.; Xxxxxxx, Inc.; and RPC, Inc.
"Alliance" shall have the meaning set forth in the recitals to
this Alliance Agreement.
"Business Day" shall mean any day other than a Saturday, Sunday
or day on which banks are authorized to be closed under the laws of
the State of Georgia.
"Business Plan" shall mean the annual initial Business Plan and
each subsequent business plan, substantially in the form of Exhibit A
hereto, as revised from time to time during the Term in accordance
with Article 4.
"Change in Control" shall mean (a) the consolidation or merger of
the subject corporation with or into any organization (other than a
consolidation or merger in which the subject corporation is the
surviving corporation in such consolidation or merger unless such
consolidation or merger has the effect of an acquisition of ownership
referred to in (c) hereof), (b) the direct or indirect sale, transfer
or other disposition of all or substantially all of the subject
corporation's assets, in a single transaction or a series of related
transactions, (c) the direct or indirect acquisition by an entity, or
group of entities acting in concert, of beneficial ownership of more
than 25% of the outstanding voting securities of the subject
corporation in a single transaction or a series of related
transactions, excluding acquisitions by Xxxxxxx family members,
existing officers or directors of Xxxxxxx, or trusts established by
any of them.
"Committee Member" shall have the meaning set forth in Section
3.1 hereof.
"Joint Planning Committee" shall have the meaning set forth in
Section 3.1 hereof.
"Logistics Group" shall mean Logistics and any directly or
indirectly held wholly-owned subsidiary of Logistics that provides
Logistics Services as of the date hereof.
"Logistics Services" shall mean and include the following
services:
(i) Warehousing, building and/or leasing facilities,
labeling, receiving, inspection, sorting, parts kitting, order,
returns and repairs management, service parts management, supply chain
engineering, inventory management, and billing and receivables
management;
(ii) Domestic and international intermodal or multimodal
surface, air, and sea transport management, pick-up and delivery of
consignments, track and trace inventory systems management, and
export/ import customs clearance; and
(iii) Software systems planning, development,
management, application, maintenance, upgrade, systems integration,
and systems procedure related to warehousing and transportation.
"Person" shall mean an individual, partnership, association,
limited liability company, corporation, joint venture, sole
proprietorship, trust or other entity.
"Xxxxxxx Group" shall mean Xxxxxxx and any directly or indirectly
held wholly-owned subsidiary of Xxxxxxx that provides Truck Leasing
Services as of the date hereof.
"Term" shall have the meaning set forth in Section 5.1 hereof.
"Territory" shall mean North America.
"Truck Leasing Services" shall mean and include long and short
term vehicle leasing, vehicle rental, vehicle maintenance, washing,
emergency road services, and ancillary services such as permitting,
licensing and may include fueling and fuel tax reporting (based on
mutual agreement of the Parties), but shall not include the provision
of drivers for the vehicles.
ARTICLE 2
ALLIANCE SERVICES
2.1 Purpose. WDS and Xxxxxxx desire to enter into and create
the Alliance in order to achieve the following goals:
(a) To provide Xxxxxxx with a stream of revenues from the
provision of Truck Leasing Services to WDS and its customers of
Logistics Services.
(b) To promote the Logistics Group as the preferred
provider of Logistics Services to the Xxxxxxx Group and their
respective customers of Truck Leasing Services.
(c) To promote Xxxxxxx as the preferred provider of Truck
Leasing Services to customers of WDS' dedicated Logistics
Services.
(d) To work together to achieve growth in the Logistics
Group's Logistics Services business and Xxxxxxx' Truck Leasing
Services business.
(e) To provide the customers of each of WDS and Xxxxxxx
with the best services and solutions to meet their truck leasing
and logistics needs at competitive rates.
2.2 Provision of the Truck Leasing Services.
(a) During the Term, Xxxxxxx will be the preferred provider
of Truck Leasing Services to WDS, and to the customers of WDS to
whom WDS provides Logistics Services, to the extent necessary to
meet their respective requirements for Truck Leasing Services.
In connection with the foregoing, and except as provided in
Section 2.2(b) below, WDS will cause the members of the Logistics
Group to refer to Xxxxxxx all inquiries they receive from
logistics customers seeking Truck Leasing Services. Whenever
reasonably practicable, WDS shall promote the Alliance by
referring to its "alliance" or "partnership" with Xxxxxxx as the
"preferred provider of Truck Leasing Services" to the customers
of WDS. Without limiting the generality of the foregoing, unless
otherwise agreed upon by the Xxxxxxx Committee Member, proposals
by WDS to customers seeking Logistics Services will include
references to Xxxxxxx as the preferred provider of Truck Leasing
Services.
(b) Notwithstanding the provisions of Section 2.2(a) above,
WDS shall not be obligated under Section 2.2(a):
(i) to the extent a WDS customer has an existing
obligation to a provider of Truck Leasing Services other than
Xxxxxxx that it is unwilling to cancel or the cancellation of which
would not be cost effective;
(ii) where a provider of Truck Leasing Services other
than Xxxxxxx brings the customer to WDS;
(iii) where Xxxxxxx (or other member of the Xxxxxxx
Group) is unable or unwilling to provide the Truck Leasing
Services;
(iv) where a significant benefit may be derived by a
customer of WDS from an alternative truck leasing solution,
and Xxxxxxx has chosen not to (or is unable to) deliver the
customer's desired solution; or
(v) where a WDS customer insists on an alternative truck
leasing solution, whether prior to or following discussions with
Xxxxxxx.
With regard to Section 2.2(b)(iii) above, whether Xxxxxxx has
an existing facility in close enough proximity to properly service
a WDS customer at the time negotiations begin with such customer
shall not be determinative with respect to Xxxxxxx' ability to
provide Truck Leasing Services. If WDS offers a new business
opportunity to Xxxxxxx (whether in an area where Xxxxxxx does not
have a facility in close enough proximity to properly service the
customer (as determined by WDS and Xxxxxxx or the relevant
customer) or otherwise), Xxxxxxx shall have seven Business Days to
(x) if applicable, determine whether it will commit to providing
the necessary facilities, and (y) notify WDS in writing of its
determination to provide such additional facilities and/or pursue
negotiations with such customer (it being understood that any
failure of Xxxxxxx to so deliver such written notice shall be
deemed a decision by Xxxxxxx not to provide Truck Leasing Services
to such customer). Failure of Xxxxxxx to respond within such seven
Business Day period shall excuse WDS from its preferred provider
obligations with respect to such opportunity. For purposes of the
foregoing, the seven Business Day period shall begin once Xxxxxxx
has been given (or otherwise obtained) the following information
concerning the scope of the business opportunity in question: (A)
the term of the relevant commitment, (B) the number and type of
vehicles involved, (C) the type of cargo involved, (D) the
frequency and duration of trips required to service the business,
(E) the expected mileage per vehicle and (F) if applicable,
notification that Xxxxxxx' existing facilities are not adequate.
(c) The Truck Leasing Services will be provided by Xxxxxxx to
WDS and its customers substantially in accordance with the terms of
the contract attached hereto as Exhibit B, with such changes as the
Parties (or Xxxxxxx and the customer, if applicable) shall mutually
agree upon prior to the execution of each contract to provide the
Truck Leasing Services during the Term. If the relevant parties
cannot agree on changes requested by either party with respect to a
particular arrangement, the contract set forth as Exhibit B shall
govern the arrangement in question. All such contracts shall be
with WDS, and not with the customer, unless otherwise requested by
the relevant customer.
(d) The pricing for the provision of the Truck Leasing
Services by Xxxxxxx to WDS for the initial year of the Term shall
be in accordance with the pricing schedule attached hereto as
Exhibit C. Following the initial year, the Joint Planning
Committee will oversee annual negotiation to determine any
adjustments to the pricing schedule for the subsequent years during
the Term, which adjustments will be based on changes in individual
cost components in accordance with the methodology set forth on
Exhibit D attached hereto. Notwithstanding the foregoing, in no
event will the price charged to WDS for Truck Leasing Services
exceed the most favorable price that Xxxxxxx charges to any third
party for similar services. WDS and Xxxxxxx will consider in good
faith and discuss with each other from time to time alternative
pricing for Truck Leasing Services and Logistics Services for the
Parties to be competitive in bidding for certain projects.
2.3 Dedicated Logistics.
(a) During the Term, WDS (directly or through its Affiliates)
will be the preferred provider of Logistics Services to members of
the Xxxxxxx Group, and to customers of the Xxxxxxx Group to whom
members of the Xxxxxxx Group provide Truck Leasing Services, to the
extent necessary to meet their respective requirements for
Logistics Services. In connection with the foregoing, and except
as provided in Section 2.3(b) below, Xxxxxxx will cause the members
of the Xxxxxxx Group to refer to WDS all inquiries it receives from
its customers seeking Logistics Services. Whenever reasonably
practicable, members of the Xxxxxxx Group shall promote the
Alliance by referring to its "alliance" or "partnership" with the
Logistics Group as the "preferred provider of Logistics Services"
to customers of the Xxxxxxx Group.
(b) Notwithstanding the provisions of Section 2.3(a), no
member of the Xxxxxxx Group shall be obligated to comply with
Section 2.3(a):
(i) to the extent the customer has an existing
obligation to a provider of Logistics Services other than WDS that
it is unwilling to cancel or the cancellation of which would not be
cost effective;
(ii) where a provider of Logistics Services other than
WDS brings the customer to the Xxxxxxx Group;
(iii) where WDS (or other member of the Logistics
Group) is unable or unwilling to provide the Logistics Services;
(iv) where a significant benefit may be derived by a
Xxxxxxx Group customer from an alternative logistics solution, and
WDS has chosen not to (or is unable to) deliver the customer's
desired solution; or
(v) where a Xxxxxxx Group customer insists on an
alternative logistics solution (whether prior to or following
discussions with WDS).
When Xxxxxxx offers a new business opportunity to WDS, WDS
shall have seven Business Days to (x) determine whether it wishes
to pursue negotiations with the customer, (y) notify Xxxxxxx in
writing of such determination (it being understood that any failure
of WDS to so notify Xxxxxxx shall be deemed a determination not to
pursue such negotiations, and (z) if requested by the relevant
customer, make appropriate personnel available to begin
negotiations). Failure of WDS to respond within such seven
Business Day period shall excuse Xxxxxxx from its preferred
provider obligations with respect to such opportunity. For
purposes of this Section 2.3(b), the seven Business Day period
shall begin once WDS has been given (or otherwise obtained)
reasonably sufficient information concerning the scope of the
business opportunity in question.
ARTICLE 3
ORGANIZATION
3.1. Joint Planning Committee.
(a) WDS and Xxxxxxx hereby establish a committee to oversee
the Alliance (the "Joint Planning Committee"), the initial members
of which (the "Committee Members") shall be the individuals
identified on Exhibit E hereto. The Joint Planning Committee will
at all times be composed of four designees from WDS and four
designees from Xxxxxxx. WDS shall designate one WDS Committee
Member to act as chairman of the Joint Planning Committee (the
"Chairman"). Any vacancy in the Joint Planning Committee created
by a Committee Member designated by WDS shall be filled as soon as
is reasonably practicable by WDS, and any vacancy created by a
Committee Member designated by Xxxxxxx shall be filled as soon as
is reasonably practicable by Xxxxxxx. Either such Party may
change its representatives on the Joint Planning Committee upon 30
days prior written notice to the other Party.
(b) Initially, the Joint Planning Committee will meet monthly
to:
(i) discuss and resolve any issues relating to the
provision of Truck Leasing Services by Xxxxxxx to WDS and its
customers;
(ii) discuss and resolve any issues relating to the
provision of Logistics Services by WDS to the Xxxxxxx Group and its
customers;
(iii) develop and implement a Business Plan and
approve any changes thereto;
(iv) discuss and monitor the performance of WDS and
Xxxxxxx against the Business Plan;
(v) evaluate and plan joint marketing activities between
WDS and Xxxxxxx; and
(vi) design a cross-selling incentive plan and review
revenues generated by each such Party against the targets set forth
in the Business Plan.
(c) Initially, the Joint Planning Committee shall meet at
least monthly, or more frequently as WDS and Xxxxxxx agree, to
review the status of the Alliance's operations and strategies (as
described above). Such meetings are to be held alternately at
WDS' principal place of business, and at Xxxxxxx principal place
of business, or at such other place as the Joint Planning Committee
may establish. Meetings may be held by telephone conference call
or similar equipment if all Committee Members participating in the
meeting can hear each other, and be heard by each other, at the
same time. The Chairman shall be responsible for giving written
notices of such regular meetings (including descriptions of the
matters to be considered at such meetings) to all Committee Members
at least seven days before each meeting. Any Committee Member may
call a special meeting of the Joint Planning Committee at any time
by giving at least seven days prior written notice of the meeting
to all other Committee Members. Such notice of meeting shall
describe the matters to be considered by the Joint Planning
Committee in reasonable detail. A Committee Member may waive the
right to receive notice of a particular meeting at any time before,
during or after that meeting. No meeting of the Joint Planning
Committee will be effective to conduct business or to take any
action unless (i) there is present at least one WDS Committee
Member and one Xxxxxxx Committee Member, and (ii) a majority of the
Committee Members are present. The Chairman (or in his absence,
his designee) shall chair all meetings of the Joint Planning
Committee. The Joint Planning Committee may adopt such procedural
rules as they deem appropriate for the conduct of the Joint
Planning Committee's business.
(d) Unless otherwise required or permitted by this Alliance
Agreement, the Joint Planning Committee shall act by resolutions
passed unanimously by the Committee Members present and voting at
duly constituted meetings of the Joint Planning Committee at which
at least a majority of all Committee Members are present and at
which at least one WDS Committee Member and one Xxxxxxx Committee
Member are present. Xxxxxxx shall cause each Xxxxxxx Committee
Member to grant a revocable proxy to each other Xxxxxxx Committee
Member to vote at any meeting of the Joint Planning Committee at
which such Xxxxxxx Committee Member is not present or is present
but cannot vote with respect to such matter. WDS shall cause each
WDS Committee Member to grant a revocable proxy to each other WDS
Committee Member to vote at any meeting of the Joint Planning
Committee at which such WDS Committee Member is not present or is
present but cannot vote with respect to such matter.
3.2 Access to Books and Records. Each of Xxxxxxx and WDS will
create and maintain accurate books and records regarding the provision
of Truck Leasing Services and Logistics Services, respectively, and of
its respective obligations under this Alliance Agreement. For
purposes of ensuring compliance with this Alliance Agreement, and for
such other reasonable purposes in connection with the consummation of
the transactions contemplated by this Alliance Agreement, WDS and
Xxxxxxx shall each have the right, upon reasonable notice and during
normal business hours, to inspect, examine, and take extracts from or
make copies of such books and records maintained by the other Party.
WDS and Xxxxxxx shall each permit representatives of the other access
to its place of business upon reasonable notice and during normal
business hours for the purpose of such examinations.
ARTICLE 4
JOINT BUSINESS PLANNING
4.1. Purpose of Business Plan. The Business Plan will serve as a
blueprint for the business, activities and development of the
Alliance and the targeted financial impact of such business,
activities and development on WDS and Xxxxxxx. The Business Plan will
focus on developing a joint marketing plan driven by customers and
market research to promote cross-selling of Xxxxxxx' and the
Logistics Group's services and will outline quarterly projections for
revenue generated by cross-sales. In addition, it will outline a
training program by each of WDS and Xxxxxxx for the other Party's
sales personnel. WDS and Xxxxxxx agree that the Business Plan is not
intended to be, nor will it be construed as, an enforceable contract
or legal agreement between the Parties, except as provided in Section
5.2(a).
4.2. Business Plan Review. The Joint Planning Committee will have
the primary responsibility for formulating a mutually agreeable
Business Plan each year and then implementing it. Each Business Plan
will encompass a one year period.
4.3. Marketing Materials. The Joint Planning Committee (or a
relevant subcommittee formed thereby) will develop joint marketing
materials to promote the Alliance and the services of Xxxxxxx and the
Logistics Group (including (a) promotional and sales materials,
brochures and advertising materials and (b) press releases, speeches
and other publicity attempts) to customers. Drafts of any such
materials may also be submitted by WDS or Xxxxxxx to the Joint
Planning Committee for its consideration and review. Copies of all
such materials will be approved by the Joint Planning Committee in
advance of the distribution thereof or of publication activities
conducted or made with respect thereto.
4.4 Cross Selling. WDS and Xxxxxxx will design a cross-selling
incentive plan in which their respective sales forces will
participate. Sales personnel of each such Party will receive training
from the other Party and will be encouraged to promote the Truck
Leasing Services provided by Xxxxxxx and the Logistics Services
provided by WDS, as applicable. To that end, each of WDS and Xxxxxxx
will provide the other Party with direct access to its customers for
the purpose of promoting their Logistics Services and Truck Leasing
Services, respectively; provided, however, that all inquiries to
Xxxxxxx from its customers regarding Logistics Services will be
directed to WDS, and all inquires to WDS (or members of the Logistics
Group) from its customers regarding stand alone Truck Leasing Services
will be directed to Xxxxxxx.
4.5. Use of the Logistics Group Marks.
(a) Logistics hereby grants to Xxxxxxx a non-exclusive,
royalty free, nontransferable license to use the Logistics Group
Marks described on Exhibit F hereto (the "UPS Marks") in the
Territory (directly or through a sublicense to the members of the
Xxxxxxx Group, as necessary) during the Term for the purpose of
marketing, promoting and selling the Alliance and the Logistics
Services promoted to the customers of the Xxxxxxx Group in
accordance with the terms of this Alliance Agreement. Xxxxxxx
shall cause each member of the Xxxxxxx Group to properly display
and use the UPS Marks in accordance with this Alliance Agreement.
(b) (i) Logistics has the right, at all reasonable times, to
inspect the Xxxxxxx Group's relevant facilities and review the
manner in which the Xxxxxxx Group uses the UPS Marks so that
Logistics may satisfy itself that the UPS Marks are used in
accordance with this Alliance Agreement; provided, however, that
Logistics will not exercise such right in a manner which
unreasonably interferes with the Xxxxxxx Group's normal business
operations.
(ii) The Xxxxxxx Group shall adhere to the trademark
usage guidelines furnished by Logistics for the depiction of
the UPS Marks ("Trademark Usage Guidelines") and any
reasonable modifications or amendments thereto. The
guidelines set forth on Exhibit G hereto will function as the
current version of the Trademark Usage Guidelines. The
Xxxxxxx Group shall also adhere to the marketing
communications guidelines furnished by Logistics and any
reasonable modifications or amendments thereto (the "Marketing
Communications Guidelines"), the current version of which is
attached hereto as Exhibit H. In the event of a conflict
between this Alliance Agreement on the one part and either of
the Trademark Usage Guidelines or Marketing Communications
Guidelines on the other part, this Alliance Agreement shall
govern.
(iii) The Xxxxxxx Group shall include on all
advertising and promotional materials, packaging and labels
bearing the UPS Marks the following notice:
"[UPS Marks] is a registered trademark of United Parcel
Service, Inc. and its subsidiaries. Used under license."
[With respect to electronic presentations of the UPS Marks,
this notice may be contained on Xxxxxxx' web-site under "Legal
Information" or, if software, in the "About" box or where the
Xxxxxxx' own proprietary notices appear.]
(iv) Prior to any first use of the UPS Marks on
advertising or promotional materials by the Xxxxxxx Group,
Xxxxxxx agrees to furnish Logistics with samples of such
advertising and promotional materials, packaging and labels
bearing any of the UPS Marks for trademark usage approval
(which approval shall not be unreasonably withheld).
The Xxxxxxx Group shall amend the future use of the UPS Marks
in any such advertising and promotional materials, packaging
and labels if the use of the UPS Marks are not approved by
Logistics. Logistics will have ten Business Days from the
date of receipt to approve or object to materials submitted
for trademark usage approval. If no objection is received by
Xxxxxxx within such ten Business Days, such materials will be
deemed approved. Use of the UPS Marks by the Xxxxxxx Group
that is substantially identical to uses of the UPS Marks that
have previously been approved or that is being used for the
same program (with substantially similar presentation of the
UPS Marks) as has previously been approved do not require
submission for approval.
(v) The Xxxxxxx Group must immediately cease using any
previously approved material from which Logistics withdraws
its approval. Logistics will not unreasonably rescind
approval of any materials previously approved.
(c) (i) The Xxxxxxx Group acquires and will acquire no
rights, title or interest in the UPS Marks or the goodwill
associated with them, other than the right to use the UPS Marks in
accordance with this Alliance Agreement. In accepting this
Alliance Agreement, Xxxxxxx acknowledges (on behalf of the Xxxxxxx
Group) UPS' ownership of the UPS Marks, its validity and the
goodwill connected with it. The Xxxxxxx Group will not attack the
UPS Marks, nor assist anyone in attacking it. Xxxxxxx further
agrees that the Xxxxxxx Group will not make any application to
register the UPS Marks, nor will they use any confusingly similar
trademark, service xxxx, trade name, or derivation, during the term
of this Alliance Agreement or thereafter. This paragraph will
survive the termination of this Agreement.
(ii) At the request and sole expense of Logistics,
Xxxxxxx will execute and will cause any relevant member of the
Xxxxxxx Group to execute, any papers or documents reasonably
necessary to protect the rights of UPS in the UPS Marks and
execute and deliver such other documents as may be reasonably
requested by Logistics.
(iii) Logistics represents and warrants that as of
the date hereof the UPS Marks do not infringe upon any
trademarks and are not involved in any opposition,
invalidation, cancellation or litigation that would threaten
the Xxxxxxx Group's use of the UPS Marks in connection with
the transactions contemplated by this Alliance Agreement and,
to Logistics' knowledge, no such action is threatened with
respect to the UPS Marks. In the event that such action
occurs, Logistics will cause UPS to vigorously protect the UPS
Marks.
(d) Xxxxxxx shall promptly notify Logistics of any
unauthorized use of the UPS Marks that comes to the Xxxxxxx Group's
attention. Logistics in its reasonable discretion may take such
action as may be required to prosecute the infringement. In the
event that Logistics decides that action should be taken against
such third parties, Logistics may take such action either in its
own name (or in the name of UPS or any subsidiary thereof), or
alternatively, Logistics may authorize Xxxxxxx to initiate such
action in Xxxxxxx' name but Xxxxxxx shall have no obligation to do
so. In either event, Xxxxxxx agrees and agrees to cause the
relevant members of the Xxxxxxx Group to cooperate fully with
Logistics (or UPS or relevant subsidiary thereof), at Logistics'
expense, to whatever extent it is necessary to prosecute such
action, all expenses being borne by Logistics and all damages that
may be recovered being solely for the account of Logistics.
(e) In the event the Xxxxxxx Group violates the UPS Trademark
Usage Guidelines or the UPS Marketing Communications Guidelines and
continues to do so for a continuous 45 day period or for three
periods of 30 days each during a calendar year following written
notice from Logistics, such violation shall constitute a material
breach of this Agreement and Logistics may terminate this Agreement
in accordance with Section 5.2 hereof.
(f) The Parties agree that a breach of this Section 4.5 may
give rise to irreparable injury to the non-breaching Party and its
Group that cannot be compensated for adequately by damages.
Consequently, the Parties agree that each Party shall be entitled,
in addition to all other remedies available, to injunctive and
other equitable relief to prevent a breach of this Section 4.5 and
to secure the enforcement of the provisions of this Section 4.5 in
any court of competent jurisdiction in the United States or any
state thereof (and the Parties agree to waive any requirement for
the posting of bond in connection with such remedy).
4.6. Use of the RTL Marks.
(a) RTL hereby grants to WDS a non-exclusive, royalty free,
nontransferable license to use the RTL Marks described on Exhibit I
hereto (the "RTL Marks") in the Territory (directly or through a
sublicense to the other members of the Logistics Group, as
necessary) during the Term for the purpose of marketing, promoting
and selling the Alliance and the Truck Leasing Services to the
customers of WDS in accordance with the terms of this Alliance
Agreement. WDS shall properly display and use the RTL Marks in
accordance with this Alliance Agreement.
(b) (i) RTL has the right, at all reasonable times, to
inspect WDS' relevant facilities and review the manner in which
WDS uses the RTL Marks so that RTL may satisfy itself that the RTL
Marks are used in accordance with this Alliance Agreement;
provided, however, that RTL will not exercise such right in a
manner which unreasonably interferes with WDS' normal business
operations.
(ii) WDS shall adhere to the trademark usage guidelines
furnished by RTL for the depiction of the RTL Marks
("Trademark Usage Guidelines") and any reasonable
modifications or amendments thereto. The guidelines set forth
on Exhibit J hereto will function as the current version of
the Trademark Usage Guidelines. WDS shall also adhere to the
marketing communications guidelines furnished by RTL and any
reasonable modifications or amendments thereto (the "Marketing
Communications Guidelines"), the current version of which is
attached hereto as Exhibit K. In the event of a conflict
between this Alliance Agreement on the one part and either of
the Trademark Usage Guidelines or Marketing Communications
Guidelines on the other part, this Alliance Agreement shall
govern.
(iii) WDS shall include on all advertising and
promotional materials, packaging and labels bearing the RTL
Marks the following notice:
"[RTL Marks] is a registered trademark of Xxxxxxx Truck
Leasing Corp. Used under license."
[With respect to electronic presentations of the RTL Marks,
this notice may be contained on WDS' web-site under "Legal
Information" or, if software, in the "About" box or where
WDS' own proprietary notices appear.]
(iv) Prior to any first use of the RTL Marks on
advertising or promotional materials by WDS, WDS agrees to
furnish RTL with samples of such advertising and promotional
materials, packaging and labels bearing any of the RTL Marks
for trademark usage approval (which approval shall not be
unreasonably withheld).
WDS shall amend the future use of the RTL Marks in any such
advertising and promotional materials, packaging and labels if
the use of the RTL Marks are not approved by RTL. RTL will
have ten Business Days from the date of receipt to approve or
object to materials submitted for trademark usage approval.
If no objection is received by WDS within such ten Business
Days, such materials will be deemed approved. Use of the RTL
Marks by WDS that is substantially identical to uses of the
RTL Marks that have previously been approved or that is being
used for the same program (with substantially similar
presentation of the RTL Marks) as has previously been approved
do not require submission for approval.
(v) WDS must immediately cease using any previously
approved material from which RTL withdraws its approval. RTL
will not unreasonably rescind approval of any materials
previously approved.
(c) (i) WDS acquires and will acquire no rights, title or
interest in the RTL Marks or the goodwill associated with them,
other than the right to use the RTL Marks in accordance with this
Alliance Agreement. In accepting this Alliance Agreement, WDS
acknowledges RTL's ownership of the RTL Marks, its validity and the
goodwill connected with it. WDS will not attack the RTL Marks, nor
assist anyone in attacking it. WDS further agrees that WDS will
not make any application to register the RTL Marks, nor will they
use any confusingly similar trademark, service xxxx, trade name, or
derivation, during the term of this Alliance Agreement or
thereafter. This paragraph will survive the termination of this
Agreement.
(ii) At the request and sole expense of RTL, WDS will
execute any papers or documents reasonably necessary to
protect the rights of RTL in the RTL Marks and execute and
deliver such other documents as may be reasonably requested by
RTL.
(iii) RTL represents and warrants that as of the date
hereof the RTL Marks do not infringe upon any trademarks and
are not involved in any opposition, invalidation, cancellation
or litigation that would threaten WDS' use of the RTL Marks
in connection with the transactions contemplated by this
Alliance Agreement and, to RTL's knowledge, no such action is
threatened with respect to the RTL Marks. In the event that
such action occurs, RTL will vigorously protect the RTL Marks.
(d) WDS shall promptly notify RTL of any unauthorized use of
the RTL Marks that comes to WDS' attention. RTL in its reasonable
discretion may take such action as may be required to prosecute the
infringement. In the event that RTL decides that action should be
taken against such third parties, RTL may take such action either
in its own name, or alternatively, RTL may authorize WDS to
initiate such action in WDS' name but WDS shall have no obligation
to do so. In either event, WDS agrees to cooperate fully with RTL,
at RTL's expense, to whatever extent it is necessary to prosecute
such action, all expenses being borne by RTL and all damages that
may be recovered being solely for the account of RTL.
In the event WDS violates the RTL Trademark Usage Guidelines
or the RTL Marketing Communications Guidelines and continues to do
so for a continuous 45 day period or for three periods of 30 days
each during a calendar year following written notice from RTL, such
violation shall constitute a material breach of this Agreement and
RTL may terminate this Agreement in accordance with Section 5.2
hereof.
The Parties agree that a breach of this Section 4.6 may give
rise to irreparable injury to the non-breaching Party and its Group
that cannot be compensated for adequately by damages.
Consequently, the Parties agree that each Party shall be entitled,
in addition to all other remedies available, to injunctive and
other equitable relief to prevent a breach of this Section 4.6 and
to secure the enforcement of the provisions of this Section 4.6 in
any court of competent jurisdiction in the United States or any
state thereof (and the Parties agree to waive any requirement for
the posting of bond in connection with such remedy).
WDS shall have the right to extend the rights to use the RTL
Marks under this Section 4.6 to any members of the Logistics
Group, in which event WDS will assure compliance by such members
with the terms of this Section.
ARTICLE 5
TERM AND TERMINATION; REMEDIES
5.1 Term. This Alliance Agreement will commence on the date
hereof and shall remain in full force and effect for a period of five
years (such period together with any extensions as provided herein,
the "Term"), unless terminated earlier pursuant to Section 5.2 below.
This Alliance Agreement will renew for such additional terms as will
be agreed upon by WDS and Xxxxxxx.
5.2 Termination. This Alliance Agreement may be terminated at any
time during the Term:
(a) by either WDS or Xxxxxxx in the event of a material
breach by the other Party of the terms of this Alliance Agreement
or the Staffing Services Agreement that is not cured within 30 days
following written notice of such breach (or as otherwise provided
under Sections 4.5 and 4.6 hereof);
(b) by either WDS or Xxxxxxx in the event of a Change of
Control of the other Party;
(c) by either WDS or Xxxxxxx in the event of the bankruptcy
of the other Party;
(d) by either WDS or Xxxxxxx if any of the performance goals
set forth on Exhibit L hereto are not met; or
by either WDS or Xxxxxxx by notice to the other Party given
within 30 days following the first anniversary of this Agreement,
which termination shall be effective 90 days following the giving
of such notice (but not earlier than 90 days following the first
anniversary).
Termination under this Section 5.2 will not be deemed a waiver of
any right or remedy either Party may have for breach hereunder.
5.3 Specific Performance. In the event of a breach of this
Alliance Agreement, the aggrieved Party shall be entitled to seek
specific performance or other equitable relief in addition to any
other remedies that may be available to such Party.
ARTICLE 6
CONFIDENTIALITY/NON-COMPETITION
6.1 Confidential Information. In the performance of their
respective obligations under this Alliance Agreement, WDS, other
members of the Logistics Group and Xxxxxxx may disclose to each
other certain confidential and proprietary information relating
to their respective businesses ("Confidential Information").
All information exchanged by the Parties (including, for purposes
of this Article 6, any member of the Logistics Group that is not
a Party hereto) under this Alliance Agreement shall be considered
Confidential Information unless it is subject to any of the
exceptions in Section 6.3.
6.2 Non-Disclosure. Each recipient of Confidential
Information agrees that it shall (and shall cause its respective
officers, directors, employees, agents and Affiliates to):
(a) make no use of any Confidential Information
belonging to the other Party except as necessary for the
performance of its obligations under this Alliance
Agreement;
(b) not disclose to third parties any of the
Confidential Information belonging to the other Party
without the prior written consent of such Party;
(c) take such precautions as it normally takes with
its own confidential and proprietary information to prevent
disclosure of Confidential Information to third parties, and
(d) upon the expiration of the Term or earlier
termination of this Alliance Agreement, promptly return any
Confidential Information and all copies thereof (in whatever
format) in its possession to the other Party (or, upon the
written request of the other Party, to destroy all such
materials).
6.3 Exceptions. Notwithstanding any of the foregoing, the
obligations under Section 6.2 shall not apply to:
(a) any information which at the time of disclosure is
publicly available or public knowledge;
any information which the receiving Party possesses at
the time of disclosure of the Confidential Information and
which was not acquired, directly or indirectly from the
other Party;
any information required by applicable law or court
order to be disclosed, but then only (i) to the extent such
disclosure is so required; and (ii) following written notice
of such obligation to the affected Party; and
(d) any information acquired from a third party who
has a right to disclose such information.
6.4 Non-Competition.
(a) Except as permitted in Section 6.4(c) below,
during the Term and for a period of two years following the
end of the Term, (i) none of the members of the Logistics
Group and none of their respective Affiliates will engage in
the provision of Truck Leasing Services to any third party
that is not an Affiliate of such member in the Territory and
(ii) none of the members of the Xxxxxxx Group and none of
their respective Affiliates will engage in the provision of
Logistics Services in the Territory to any third party that
not an Affiliate of such member.
(b) If either Party or its Affiliate (the "Bidding
Party") anticipates making an offer to a potential seller to
acquire a business that has a division or subsidiary, or
certain customer contracts, the ownership of which would
violate Section 6.4(a) (a "Prohibited Business"), the
Bidding Party shall notify the other Party (the "Non-Bidding
Party") sufficiently in advance of the making of such offer
to permit the Parties to discuss in good faith a joint offer
pursuant to which the Non-Bidding Party would acquire the
Prohibited Business. The Bidding Party will share with the
Non-Bidding Party all information in its possession
regarding the Prohibited Business, and the Bidding Party
will assure that any confidentiality agreement entered into
by it in connection with such transaction permits such
sharing of information.
(c) In the event either Party or its Affiliate
acquires a Prohibited Business following the consultation
required by Section 6.4(b) above, such Party (the "Selling
Party") agrees (i) to notify the other Party (the "Non-
Selling Party") in writing of such acquisition, including a
reasonable description of the Prohibited Business, (ii) to
make the personnel, facilities and books and records of the
Prohibited Business fully available to the Non-Selling Party
and its representatives to the extent requested by the Non-
Selling Party, and (iii) to use commercially reasonable
efforts to sell or otherwise dispose of the Prohibited
Business within one year from the date of acquisition.
Within 30 days of the delivery of the notice described in
clause (i) above, the Non-Selling Party shall have the right
to provide a written offer (the "Offer") to purchase the
Prohibited Business. For a period of 30 days following the
delivery of the Offer, the Selling Party will negotiate in
good faith with the Non-Selling Party regarding the Offer,
and shall make such modifications to the Offer as are agreed
upon in such negotiations. If the Selling Party declines to
accept the Offer (as so modified), the Selling Party shall
be free to sell the Prohibited Business to any Person that
is not an Affiliate of the Selling Party (a "Bona Fide
Purchaser"), subject to the remaining provisions of this
Section 6.4(c). Thereafter, the Selling Party shall
promptly notify the Non-Selling Party in writing (the "Third
Party Notice") if the Selling Party receives an offer to
purchase the Prohibited Business that it wishes to accept
from any Bona Fide Purchaser (a "Third Party Offer"), which
such Third Party Notice shall include a reasonable
description of the terms of the Third Party Offer. If the
purchase price (taking into account timing of payment and
form of consideration) under the terms of the Third Party
Offer is less than the purchase price under the terms of the
Offer (as modified), then, for a period of 20 days after
receipt of the Third Party Notice by the Non-Selling Party,
the Non-Selling Party shall have the right to accept the
Third Party Offer. Thereafter, the Parties shall work as
promptly as is reasonably practicable to complete the
acquisition of the Prohibited Business on the terms and
conditions of the Third Party Offer. Notwithstanding the
foregoing provisions of this Section 6.4, no sale or
disposition of a Prohibited Business shall be required if
(x) the annual revenues from such the Prohibited Business do
not exceed $5,000,000, or (b) the Selling Party is not able
to obtain an acceptable Third Party Offer using commercially
reasonable efforts, in which event the Selling Party may
operate the Prohibited Business through the normal
termination dates contained in any relevant contracts,
without extensions or renewals and without soliciting new
business that would violate the terms of Section 6.4(a).
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and warrants that it has all
necessary corporate power and authority to execute and deliver
this Alliance Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The
execution, delivery and performance by such Party of this
Alliance Agreement, and the consummation by such Party of the
transactions contemplated hereby, have been duly authorized by
all necessary corporate action, and no other corporate
proceedings on the part of such Party are necessary to authorize
this Alliance Agreement or to consummate the transactions
contemplated hereby. This Alliance Agreement has been duly
executed and delivered by such Party and, assuming the due
authorization, execution and delivery by the other Party,
constitutes a legal, valid and binding obligation of such Party
enforceable against it in accordance with its terms.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnification. Each Party hereto agrees to
indemnify, defend and hold harmless the other Party and their
respective Affiliates, subsidiaries, officers, directors,
employees and agents (any such Person, an "Indemnitee") from and
against any and all claims, losses, damages, fines, penalties,
costs and expenses (including reasonable legal and accounting
fees) (collectively, "Losses") which may be imposed upon or
incurred by or asserted against the Indemnitee as a result of or
arising out of (a) the breach by such Party (the "Indemnifying
Party") of any representation or warranty contained in this
Alliance Agreement, (b) the failure of the Indemnifying Party to
perform any covenant or agreement required to be performed by
such Party under the terms of this Alliance Agreement, or (c)
caused by the gross negligence or willful misconduct of the
Indemnifying Party, any members of its Group, or the agents or
employees of any thereof.
8.2 Procedures.
(a) Subject to Section 8.2(b) below, if an Indemnified
Party shall claim a right to payment pursuant to this Article
8, such Indemnified Party shall send written notice of such
claim to the Indemnifying Party. Such notice shall specify
the basis for such claim. As promptly as possible after the
Indemnified Party has given such notice, such Indemnified
Party and the Indemnifying Party shall establish the merits
and amount of such claim (by mutual agreement, litigation,
arbitration or otherwise) and, within five business days of
the final determination of the merits and amount of such
claim, the Indemnifying Party shall pay to the Indemnified
Party immediately available funds in an amount equal to such
claim as determined hereunder.
(b) Promptly after receipt by an Indemnified Party of
notice by a third party of any complaint or the commencement
of any action or proceeding with respect to which such
Indemnified Party may be entitled to receive payment from
the other party for any Losses, such Indemnified Party shall
notify the Indemnifying Party within 20 days of such
complaint or of the commencement of such action or
proceeding; provided, however, that the failure to so notify
the Indemnifying Party shall relieve the Indemnifying Party
from liability under this Alliance Agreement with respect to
such claim only if, and only to the extent that, such
failure results in the forfeiture by the Indemnifying Party
of rights and defenses otherwise available to the
Indemnifying Party with respect to such claim. The
Indemnifying Party shall have the right, upon written notice
delivered to the Indemnified Party within 30 days thereafter
(which written notice must include a binding acknowledgment
of the Indemnifying Party that such claim constitutes an
indemnifiable Loss hereunder), to assume the defense of such
action, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of the
fees and disbursements of such counsel. If the Indemnifying
Party declines to assume the defense of the action within
such 30-day period, then such Indemnified Party may employ
counsel to represent or defend it in any such action and the
Indemnifying Party shall pay the reasonable fees and
disbursements of such counsel as incurred; provided,
however, that the Indemnifying Party shall not be required
to pay the fees and disbursements of more than one counsel
for all Indemnified Parties in any jurisdiction in any
single action or proceeding. In any action with respect to
which indemnification is being sought hereunder, the
Indemnified Party or the Indemnifying Party, whichever is
not assuming the defense of such action, shall have the
right to participate in such litigation and to retain its
own counsel at such party's own expense. The Indemnifying
Party or the Indemnified Party, as the case may be, shall at
all times use reasonable efforts to keep the Indemnifying
Party or the Indemnified Party, as the case may be,
reasonably apprised of the status of the defense of any
action the defense of which they are maintaining and to
cooperate in good faith with each other with respect to the
defense of any such action.
ARTICLE 9
MISCELLANEOUS
9.1 No Individual Authority. Neither Party shall, without
the express, prior written consent of the other Party, take any
action for or on behalf of or in the name of the other Party,
assume, undertake or enter into any commitment, debt, duty or
obligation binding upon any other Party, except for actions
expressly provided for in this Alliance Agreement or pursuant to
agreements entered into between the Parties.
9.2 Force Majeure. No Party shall be responsible or liable
to the others for failure or delay in its performance of this
Alliance Agreement due to war, fire, accident or other casualty,
or any labor disturbance or act of God or the public enemy, or
any other contingency beyond such Party's reasonable control
("Force Majeure Event"). In addition, in the event of the
applicability of this Section 9.2, the Party affected by such
Force Majeure Event shall use all commercially reasonable efforts
to eliminate, cure and overcome any of such causes and resume
performance of its obligations.
9.3 Governing Law. This Alliance Agreement shall be
construed in accordance with, and governed by, the laws of the
State of New York.
9.4 Severability. Should any part of this Alliance
Agreement or any of the provisions hereof for any reason be
declared to be invalid, such decision or determination shall not
in any way affect the validity of the remaining portions of this
Alliance Agreement, all of which shall remain in full force and
effect as if the portion declared to be invalid had not been
contained herein at the time of the execution of this Alliance
Agreement.
9.5 Headings; Number. The subject headings of this
Alliance Agreement are included for purposes of convenience only,
and shall not affect the construction or interpretation of any of
its provisions. Whenever the context so requires, the singular
shall include the plural and the plural shall include the
singular.
9.6 Assignment. This Alliance Agreement shall be binding
on, and shall inure to the benefit of, each of the Parties and
their respective successors and permitted assigns. No Party
shall be permitted to assign its rights or obligations under this
Alliance Agreement (whether by merger, operation of law or
otherwise) without the express written consent of the other
Parties, except that (a) Xxxxxxx may assign its interest to a
wholly-owned subsidiary of Xxxxxxx and (b) WDS may assign its
interest to UPS or any wholly-owned subsidiary of UPS, so long as
in the case of any such assignment under clause (a) or (b), the
assignee agrees in writing to be bound by the terms of this
Alliance Agreement, the assignee retains its wholly-owned status
during the Term and the assignor remains primarily liable for all
obligations hereunder.
9.7 Entire Agreement. This Alliance Agreement constitutes
the entire agreement among the Parties regarding the subject
matter hereof, and supersedes all prior agreements, negotiations
or understandings between them concerning the subject matter
hereof.
9.8 Amendments. This Alliance Agreement may not be
amended, supplemented or modified except in a writing signed by
the Parties hereto.
9.9 Waiver. No waiver of any default hereunder by either
Party or any failure to enforce any rights hereunder shall be
deemed to constitute a waiver of any subsequent default with
respect to the same or any other provisions hereof.
9.10 Notices. Any notice required or permitted to be given
hereunder shall be made in writing and shall be given to the
Party to receive such notice by (i) hand delivery, (ii) first-
class registered or certified mail, postage prepaid, return
receipt requested, (iii) overnight courier service, postage
prepaid or (iv) telecopy with evidence of confirmation of
transmission, in each case at the address or telecopy number set
forth below:
To WDS or Logistics: UPS Logistics Group, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Legal Manager
Telefax No.: (000) 000-0000
With copies to: UPS Legal Department
00 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Legal
Counsel
Telefax No.: (000) 000-0000
and to: King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx III
Telefax No.: (000) 000-0000
To Xxxxxxx or RTL: Xxxxxxx Leasing Corp.
0000 Xxxxxxx Xxxx
Xxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telefax No.: (000) 000-0000
With a copy to: Xxxxxxx Leasing Corp.
0000 Xxxxxxx Xxxx
Xxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
Telefax No.: (000) 000-0000
Either Party may change the information specified herein for the
receipt of notices by giving written notice to the other Party in
accordance with the provisions of this Section 9.10.
9.11 Counterparts. This Alliance Agreement may be executed
in any number of counterparts, each of which will be deemed an
original, but all of which taken together will constitute one and
the same instrument.
9.12 Third Party Beneficiaries. This Alliance Agreement is
for the sole benefit of the Parties hereto and no third party may
claim any right, or enforce any obligation of the Parties,
hereunder.
9.13 Relationship. The Parties intend to create an
independent contractor relationship and nothing contained in this
Alliance Agreement will be construed to make either (i) WDS or
any member of the Logistics Group, or any Affiliates of any of
the foregoing, on the one hand, or (ii) Xxxxxxx or any Affiliates
of Xxxxxxx on the other hand, partners, principals, agents or
employees of the other. Neither WDS and Logistics nor Xxxxxxx
and RTL will have any right, power or authority, express or
implied, to bind the other.
9.14 Dispute Resolution. Any controversy, claim or question
of interpretation arising out of or relating to this Alliance
Agreement (including without limitation a claimed breach of any
of the provisions hereof) that is not resolved by the Parties (a
"Dispute"), shall be resolved in accordance with the provisions
of this Section 9.14:
(a) Initially, any such Dispute may be submitted by
either Party to the Joint Planning Committee for resolution,
by delivering written notice of such Dispute, including a
brief description thereof, to the Chairman of the Joint
Planning Committee, with a copy to the other Party. The
Joint Planning Committee shall work in good faith to resolve
such Dispute (including by calling a meeting or meetings of
the Joint Planning Committee, as reasonably necessary);
provided, however, that if the Joint Planning Committee
cannot resolve such Dispute within 30 days of its receipt of
the notice described in this subsection (a), such Dispute
shall be resolved in accordance with subsection (b) below.
(b) If the Dispute is not resolved in accordance with
subsection (a) above, the Chief Financial Officer of Xxxxxxx
(the "Xxxxxxx CFO") and the Chief Financial Officer of the
Transportation Management Group of Logistics (the "Logistics
CFO") shall meet in good faith to resolve such Dispute. If
the Xxxxxxx CFO and the Logistics CFO are unable to resolve
such Dispute within 60 days following the notice described
in subsection (a) above, such Dispute may be submitted by
either Party to binding arbitration in accordance with the
remaining provisions of this Section 9.14.
(c) If the Dispute is not resolved in accordance with
subsection (b) above, the Dispute shall be finally settled
by arbitration in the City of Washington, D.C. under the
then-effective Commercial Arbitration Rules of the American
Arbitration Association as modified by this Alliance
Agreement, and judgment on the award rendered by the
arbitrators may be entered in any court having jurisdiction.
The award rendered by the arbitrators shall be final and
binding on the Parties and not subject to further appeal.
Such arbitration can be initiated by written notice by
either Party (after compliance with the escalation
provisions of subsections (a) and (b) above) to the other
Party, which notice shall identify the claimant's selected
arbitrator. The Party receiving such notice shall identify
its arbitrator within five Business Days following its
receipt of such notice. The arbitrator selected by the
claimant and the arbitrator selected by the respondent
shall, within five Business Days of their appointment,
select a third neutral arbitrator. In the event that they
are unable to do so, either Party may request the American
Arbitration Association to appoint the third neutral
arbitrator. The arbitrators shall have the authority to
award any remedy or relief that a court in New York could
order or grant, including, without limitation, specific
performance of any obligation created under this Alliance
Agreement, the awarding of punitive damages, the issuance of
injunctive or other provisional relief, or the imposition of
sanctions for abuse or frustration of the arbitration
process. The arbitration awards will be in writing and
specify the factual and legal basis for the award.
(d) It is the intent of the Parties that any
arbitration shall be concluded as quickly as practicable
(but, barring extraordinary circumstances, in any event not
more than 20 days after the date the third arbitrator is
selected). Unless the Parties otherwise agree, once
commenced, the hearing on the disputed matters shall be held
four days a week until concluded with each hearing date to
begin at 9:00 a.m. and to conclude at 5:00 p.m. The
arbitrators shall use their best efforts to issue the final
award or awards within a period of five Business Days after
closure of the proceedings. Failure of the arbitrators to
meet the time limits of this Section 9.14 shall not be a
basis for challenging the award.
(e) The arbitrators shall instruct the non-prevailing
party to pay all costs of the proceedings, including the
fees and expenses of the arbitrators and the reasonable
attorneys' fees and expenses of the prevailing party. If
the arbitrators determine that there is not a prevailing
party, each party shall be instructed to bear its own costs
and to pay one-half of the fees and expenses of the
arbitrators.
(f) Notwithstanding the foregoing, nothing contained
herein shall prevent either Party from seeking injunctive
relief in any court.
IN WITNESS WHEREOF, the Parties have caused this Alliance
Agreement to be signed as of the date first above written.
WORLDWIDE DEDICATED SERVICES, INC.
By: _____________________________________
Name:
Title:
UPS LOGISTICS GROUP, INC.
By: _____________________________________
Name:
Title:
XXXXXXX LEASING CORP.
By: _____________________________________
Name:
Title:
XXXXXXX TRUCK LEASING CORP.
By: _____________________________________
Name:
Title:
