EXHIBIT 10.26
SERVICE AGREEMENT
THIS SERVICE AGREEMENT (the "Agreement") is effective as of November 3,
2004, by and between TanSeco Systems, Inc. ("TanSeco"), a Delaware corporation
and a wholly-owned subsidiary of eLinear, Inc. ("eLinear"), a Delaware
corporation, and RadioShack Corporation ("RadioShack"), a Delaware corporation.
R E C I T A L S
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A. RadioShack and eLinear are parties to that certain Stock Purchase
Agreement, dated the date hereof, pursuant to which RadioShack has agreed
to sell and eLinear has agreed to purchase all of the capital stock of
TanSeco, from RadioShack, thereby causing the acquisition by eLinear of
TanSeco. Such acquisition is referred to as the "Acquisition Transaction."
B. The consummation of the Acquisition Transaction is conditioned upon the
parties entering into a mutually satisfactory services agreement pursuant
to which TanSeco will provide certain services with respect to the
installation and repair of security systems for RadioShack.
C. The parties desire to enter into this agreement to set forth the terms and
conditions for the provision by TanSeco of certain services with respect to
the installation and repair of security systems for RadioShack.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the mutual promises contained herein
and other valuable consideration, the parties agree as follows:
1. SERVICES.
1.1 Services. In consideration of the pricing set forth in Exhibit D,
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RadioShack hereby appoints TanSeco, and TanSeco accepts the
appointment, as RadioShack's Preferred Provider (as described in
Section 1.3) for the installation, service, repair, and inspection of
security, closed circuit television, and fire systems used by
RadioShack for security systems in all of RadioShack company-owned
stores located in the continental United States, Puerto Rico and the
U.S. Virgin Islands ("RadioShack Stores"), kiosks, and other physical
locations identified by RadioShack or its affiliates (collectively,
the "Services"). The Services are described in the Scope of Work
attached hereto and incorporated herein as Exhibit A. "RadioShack
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Stores" shall not include, and the foregoing appointment of TanSeco
shall not apply to, RadioShack's independent dealers or franchisees
operating retail store locations under the RadioShack brand.
1.2 Other Services. During the term of this Agreement, either party may,
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from time to time, request that TanSeco expand the Services that it
provides (collectively referred to as "Other Services"). The addition
of Other Services, if any, shall be evidenced by an Addendum attached
to this Agreement and executed by the parties. The Addendum shall
state the terms, scope of work and pricing of the Other Services.
Except as may be otherwise specifically provided in the Addendum, the
Other Services shall be subject to all of the terms and conditions of
this Agreement.
E-1
1.3 Preferred Provider; Right of First Refusal. As RadioShack's Preferred
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Provider, TanSeco shall provide the Services in a manner equal to
RadioShack's current cost, quality and scheduling requirements as
described in Section 3 of this Agreement.
(a) During the Term of this Agreement, if RadioShack needs Services
or Other Services that are small in scope and routine in nature
(e.g., service calls), RadioShack shall provide a purchase order
or a purchase order number (the "Purchase Order") to TanSeco to
provide such Services or Other Services. For urgent matters,
RadioShack will issue a verbal Purchase Order to TanSeco, to be
followed by a confirming fax. Urgent matters shall be designated
as such in the confirming fax. All other Purchase Orders will be
written (including by fax). If TanSeco accepts the Purchase
Order, TanSeco shall promptly acknowledge receipt of the Purchase
Order, no less than five (5) business days after receipt of the
Purchase Order, or two (2) business days if the Purchase Order is
urgent. If TanSeco rejects the Purchase Order, TanSeco shall
notify RadioShack within five (5) business days after receipt of
the Purchase Order, or within two (2) days if the Purchase Order
is urgent. If TanSeco does not accept the Purchase Order within
applicable time period, TanSeco shall be deemed to have rejected
the Purchase Order. Unless otherwise agreed by the parties in
writing, TanSeco shall schedule the service contemplated by the
Purchase Order within five (5) business days of acceptance of the
Purchase Order and within two (2) business days of acceptance of
the Purchase Order if the Purchase Order is urgent. RadioShack
may present the services represented by the Purchase Order to
third parties only after TanSeco rejects the Purchase Order.
(b) During the Term of this Agreement, if RadioShack needs Services
or Other Services that are not small in scope or routine in
nature (e.g., installation services for a new store), RadioShack
shall provide TanSeco with a written proposal (the "Proposal")
setting forth what will be required and the time frame for such
Services or Other Services to be completed and such other related
information that RadioShack deems necessary or other information
that TanSeco may reasonably request, and TanSeco shall have five
(5) business days to accept or reject such Proposal. If TanSeco
does not accept the Proposal within five (5) business days,
TanSeco shall be deemed to have rejected the Proposal. If TanSeco
rejects the Proposal, the parties shall negotiate in good faith
for five (5) business days thereafter to revise the Proposal to
their mutual satisfaction. If TanSeco then accepts the Proposal
or the parties agree to a mutually agreeable revised Proposal,
TanSeco shall provide such Services or Other Services to
RadioShack pursuant to this Agreement. RadioShack may only
present the services represented by the Proposal to third parties
if TanSeco rejects the Proposal and the parties fail to reach a
mutually agreeable revised Proposal within the specified
timeframe.
(c) Notwithstanding anything herein to the contrary, in the event
that TanSeco fails to provide the Services or the Other Services
within the time period specified by RadioShack more than three
(3) times in any twelve (12) month period, and such failure is
not due to events beyond the reasonable control of TanSeco,
TanSeco shall cease to be designated as RadioShack's Preferred
Provided, and RadioShack may offer the Services or the Other
Services to third parties prior to or without offering such
Services or Other Services to TanSeco. By way of clarification,
the cure period specified in Section 12.2 shall not apply to this
section.
1.4 No Minimum Guaranty. TanSeco and eLinear acknowledge and agree that
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RadioShack does not guarantee any minimum amount of Services or Other
Services, nor does it guarantee any minimum amount of revenue or
profit to be earned by TanSeco or eLinear pursuant to this Agreement,
2. RELATIONSHIP OF PARTIES.
2.1 Independent Contractor. TanSeco is an independent contractor. This
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Agreement will not be construed to create any partnership, joint
venture, agency or employer and employee relationship between
RadioShack and TanSeco. Neither of the parties shall create any
obligation or assume any responsibility on behalf of the other party
nor be able to bind the other party in any way whatsoever.
2.2 Taxes and Insurance Liability. TanSeco understands and acknowledges
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that, except sales or use taxes imposed upon RadioShack, TanSeco is
solely responsible for any and all taxes and insurance liability
arising from fulfillment of its obligations under this Agreement.
TanSeco agrees that it shall report such payments to taxing
authorities and pay all federal, state, or local income, self
employment and other taxes payable with respect thereto in a manner
consistent with its status as an independent contractor. TanSeco will
be solely responsible for all taxes, its and its employee's wages,
benefits, unemployment compensation and workers' compensation and all
other costs and expenses relating to its employees and applicable to
the performance of this Agreement.
3. PERFORMANCE OF SERVICES AND OTHER SERVICES.
3.1 Performance Guidelines. TanSeco shall perform the Services in
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accordance with the provisions of the "Scope of Work" outlined on
Exhibit A and the "Performance Parameters" set forth on Exhibit B, and
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shall perform the Other Services in accordance with the provisions of
any Addendum with respect thereto.
3.2 Quality of Services and Other Services. In connection with the
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performance by it of the Services or Other Services, TanSeco shall
employ a standard of care, skill, and diligence consistent with the
highest professional standards practiced in TanSeco's industry.
Services and Other Services will, at all times during the term of the
Agreement, be performed in compliance with all applicable laws,
ordinances, rules and regulations. TanSeco will ensure that all
aspects of the Services or Other Services are performed in a safe,
efficient and lawful manner.
3.3 Permits, Licensing, etc. TanSeco shall be responsible for obtaining
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all necessary licenses and permits, at TanSeco's expense, to perform
the Services and the Other Services. TanSeco represents and warrants
that it has all licenses and permits necessary to perform its
obligations under the terms of this Agreement as of the effective date
of the Agreement and at all times during the term of the Agreement.
3.4 Trained and Qualified Personnel. In the performance of the Services
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or Other Services, TanSeco's employees and subcontractors will conduct
operations in a proper, courteous and timely manner, and will be fully
trained in all aspects of the Services or Other Services. Any
personnel that is required to be licensed shall possess all requisite
licenses.
3.5 Furnish Materials. TanSeco shall, at its sole cost and expense,
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furnish and maintain in good mechanical condition and repair, all
vehicles, tools, supplies, labor, supervision and
parts necessary, required or proper for the safe and efficient
performance of TanSeco's obligations under this Agreement. TanSeco
shall pay all costs and expenses in connection with the safe and
efficient performance of TanSeco's obligations under this Agreement.
3.6 Non-Infringement. TanSeco warrants and represents that, in the course
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of complying with its obligations and duties under this Agreement, it
will not violate or infringe upon any patent, copyright, trade secret
or other property or contract right of any other person.
3.7 Policies. While on RadioShack's premises and in RadioShack Stores
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and/or fulfilling its obligations hereunder, TanSeco and persons
employed or conducting business with TanSeco shall (1) comply with all
policies and procedures promulgated by RadioShack as to RadioShack's
premises and/or Stores; (2) not destroy or damage any real or personal
property of RadioShack; (3) not make disparaging comments about
RadioShack, its products, services, employees, or otherwise make
comments that reflect adversely on RadioShack; and (4) be
professional, appropriately dressed, well-mannered, and conduct
themselves appropriately at all times.
3.8 Purchases. No goods or equipment shall be purchased in the name of
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RadioShack by TanSeco or any person employed or conducting business
with TanSeco. No debts, liabilities, obligations, or contracts of
whatsoever kind made or incurred by either of the parties hereto or
any person employed by or conducting business with said party shall be
in the name or upon credit of the other party, and the party incurring
such debt, liabilities, obligations, or contract shall be liable or
responsible therefor. TanSeco shall not be entitled to or utilize any
discount, bonus or other marketing incentive earned by or belonging to
RadioShack.
3.9 Trademarks. This Agreement does not xxxxx XxxXxxx any rights or
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license to use RadioShack's trademarks, trade names, service marks or
any other identifying marks of RadioShack. Under no circumstances may
TanSeco use any of RadioShack's trademarks, trade names, service marks
or any other identifying marks of RadioShack without obtaining
RadioShack's prior written consent, which RadioShack may grant or
withhold in its sole discretion.
3.10 Responsibilities and Obligations of RadioShack. RadioShack agrees to
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comply with the responsibilities and obligations as set forth in
Exhibit C.
4. COMPENSATION AND BILLING PROCEDURES. RadioShack shall pay TanSeco the
applicable fees and charges set forth in Exhibit X. XxxXxxx will invoice
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RadioShack in accordance with Exhibit D, with payment of undisputed amounts
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to be made net thirty (30) days from the receipt date of the invoice (i) by
wire transfer or ACH direct deposit only (in accordance with TanSeco's
instructions) or (ii) by such other payment means as RadioShack shall
select in its discretion. All invoices shall be accompanied by supporting
documentation, including signed work orders for service tickets. If
RadioShack in good faith disputes any invoice or portion thereof RadioShack
shall provide TanSeco written notification detailing the cause of such
dispute. Upon such notification RadioShack and TanSeco will take all
reasonable actions to resolve such disputes, and RadioShack shall have
fifteen (15) days following its receipt of a resubmitted invoice to pay
TanSeco for those items no longer considered to be in dispute. If any
undisputed part of a payment is more than fifteen (15) days late,
RadioShack agrees to pay a late charge of ten percent (10%) of the payment
which is late, or if less, the maximum late charge allowed by applicable
law.
5. WARRANTY AND LIMITATION OF LIABILITY.
5.1 DISCLAIMER OF WARRANTIES. TANSECO DOES NOT WARRANT THAT ANY SECURITY,
CLOSED CIRCUIT TELEVISION, OR FIRE SYSTEMS THAT TANSECO INSTALLS
DURING THE TERM OF THIS AGREEMENT (THE "INSTALLED SYSTEMS") OR SERVICE
OR OTHER SERVICE PROVIDED MAY NOT BE COMPROMISED OR CIRCUMVENTED; OR
THAT THE ALARM SYSTEM OR SERVICES WILL PREVENT ANY LOSS; OR THAT THE
ALARM SYSTEM OR SERVICES WILL PROVIDE THE SECURITY FOR WHICH THEY ARE
INTENDED, OTHER THAN THE LIMITED WARRANY CONTAINED IN SECTION 5.2,
TANSECO MAKES NO WARRANTIES, EXPRESS OR IMPLED, AS TO THE SYSTEM OR
SERVICE WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE CONDITION OF THE
EQUIPMENT, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
THERE ARE NO ORAL WARRANTIES WHICH EXTEND BEYOND THE WRITTEN TERMS
CONTAINED IN THIS AGREEMENT. RADIOSHACK AGREES THAT TANSECO IS NOT AN
INSURER; RADIOSHACK ASSUMES ALL RISK OF THE LOSS OR DAMAGE TO
RADIOSHACK'S PREMISES AND TO THE CONTENTS THEREOF; AND RADIOSHACK HAS
READ AND UNDERSTAND THIS AGREEMENT.
5.2 Limited Warranty. TanSeco warrants the equipment and parts against
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defects in materials and workmanship for a period of one (1) year for
parts and ninety (90) days for labor, from the date the Installed
Systems are installed or any Service or Other Service is provided
("Service Date"). For the first ninety (90) days following the Service
Date, TanSeco will repair and replace the equipment or parts in the
Installed Systems or for any repairs or Services or Other Services
provided without charge for such parts, equipment or labor. From the
ninety-first (91) day until one (1) year following the Service Date,
TanSeco will repair or replace equipment or parts in the Installed
Systems or any other Service or Other Service provided without charge
for parts or equipment. During this period, RadioShack will be
responsible for any labor charges. To obtain service under this
limited warranty, RadioShack shall give written notice to TanSeco. In
an emergency, such notice my be oral but shall be followed immediately
by written notice. After the expiration of one (1) year from the
Service Date, all service calls will be billed on a time and material
basis. This warranty does not cover damages or failure caused by or
attributable to acts of God, abuse, misuse, improper or abnormal
usage, improper maintenance, lightning or other incidence of excess
voltage, or any repairs other than those provided by TanSeco, or
transportation cost. Within the warranty period and upon receipt of a
request from RadioShack for warranty service, TanSeco shall respond as
soon as possible, but in no event more than ten (10) business days
after receipt of such a request. TanSeco has no responsibility for
defects in any equipment or parts not supplied by TanSeco used in
connection with the Services or Other Services. TANSECO MAKES NO OTHER
WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO ANY SERVICES PERFORMED OR
PRODUCTS SUPPLIED UNDER THIS AGREEMENT. RadioShack shall pay all
charges which may result from any alteration, remodeling, repair, or
other change to any of RadioShack's premises. Additions to, or changes
in rearrangement of space protection components, necessary by stock,
fixture, or structural changes, which shall be necessary to retain the
original protection provided shall be at RadioShack's expense. If
RadioShack, for whatever reason, allows any other person or service,
including RadioShack employees, agents or subcontractors, to
materially disturb any of the equipment or wiring installed or
provided by TanSeco in its performance of the Services and Other
Services, then
the limited warranty provided by this Section 5.2 will be void with
respect to such disturbed equipment or wiring and then to the extent
that such equipment or wiring is disturbed.
5.3 Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
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PARTY FOR ANY SPECIAL, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES
UNDER ANY CIRCUMSTANCES WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER
THEORY OF RECOVERY EXCEPT WITH RESPECT TO CLAIMS BY OR DAMAGES AWARDED
TO A THIRD PARTY AGAINST WHICH A PARTY TO THIS AGREEMENT HAS AN
OBLIGATION.
6. INDEMNIFICATION.
6.1 By TanSeco. TanSeco shall indemnify and save and hold RadioShack, its
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affiliates and their respective officers, directors, employees and
agents (collectively, the "RadioShack Indemnified Parties") harmless
from and against all losses, costs, obligations, liabilities, damages,
actions, suits, causes of action, claims, demands, settlements,
judgments and other expenses (including, but not limited to, costs of
defense, settlement and reasonable attorneys' fees) of any type or
nature, including, but not limited to, damage or destruction to
property, injury (including death) to any person or persons
("Losses"), that are asserted against, incurred, imposed upon or
suffered by the RadioShack Indemnified Parties, by reason of, or
arising out of, (a) the negligence or willful misconduct of TanSeco,
its employees, agents, or subcontractors in their performance of
Services or Other Services, (b) the violation of any law, rule,
regulation, ordinance or other authority by TanSeco, its employees,
agents or subcontractors, or (c) TanSeco's performance or
non-performance of this Agreement, including a breach or failure to
perform this Agreement or any of its terms, by TanSeco, its employees,
agents or subcontractors, whether such claims shall be made by an
employee of TanSeco, a subcontractor, an employee of any subcontractor
of TanSeco, or by any other person.
TanSeco shall, at its own cost and expense, pay all costs incurred by
any RadioShack Indemnified Party in connection with any suit or claim
for which indemnity is sought by any RadioShack Indemnified Party
under this Agreement. If any RadioShack Indemnified Party shall incur
any Losses in any such action, TanSeco shall satisfy and discharge the
same without cost or expense to such RadioShack Indemnified Party.
However, this indemnity shall not apply to Losses resulting (1) from
RadioShack's negligence or material breach of this Agreement, or (2)
any failure or malfunction of the Installed Systems or other security,
closed circuit television, and fire systems serviced, repaired or
inspected by TanSeco, unless such failure or malfunction was caused by
the negligence of TanSeco, its employees, agents or subcontractors.
6.2 By RadioShack. RadioShack shall indemnify and save and hold TanSeco,
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its affiliates and their respective officers, directors, employees and
agents (collectively, the "TanSeco Indemnified Parties") harmless from
and against all Losses of any type or nature, including, but not
limited to, damage or destruction to property, injury (including
death) to any person or persons, that are asserted against, incurred,
imposed upon or suffered by the TanSeco Indemnified Parties by reason
of, or arising out of, (a) the negligence or willful misconduct of
RadioShack, its employees, agents, or subcontractors, (b) the
violation of any law, rule, regulation, ordinance or other authority
by RadioShack, its employees, agents or subcontractors, or (c)
RadioShack's performance or non-performance of this Agreement,
including a breach or failure to perform this Agreement or any of its
terms, by RadioShack, its employees, agents or subcontractors, whether
such
claims shall be made by an employee of RadioShack, a subcontractor, an
employee of any subcontractor of RadioShack, or by any other person.
RadioShack shall, at its own cost and expense, pay all costs incurred
by any TanSeco Indemnified Person in connection with any suit or claim
for which indemnity is sought by any TanSeco Indemnified Party under
this Agreement. If any TanSeco Indemnified Party shall incur any
Losses in any such action, RadioShack shall satisfy and discharge the
same without cost or expense to such TanSeco Indemnified Party.
However, this indemnity shall not apply to claims, actions, or suits
resulting from TanSeco's negligence or material breach of this
Agreement.
7. INSURANCE.
7.1 By TanSeco. Before commencing any work under the terms of this
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Agreement, and throughout the term of this Agreement, TanSeco, or it
affiliate, shall procure and maintain insurance, or, as the case may
be, cause its subcontractors to produce and maintain insurance, of the
kinds and limits enumerated hereunder and in form satisfactory to
RadioShack. Certificates of insurance shall be provided to RadioShack
evidencing the required coverage before the commencement of work and
shall set forth the following: (i) TanSeco and each subcontractor or
agent shall possess workers' compensation insurance in compliance with
and in accordance with applicable laws, (ii) employer's Liability
insurance with limits of at least $1,000,000 for each occurrence;
(iii) comprehensive automobile liability insurance if the use of motor
vehicles is required, with at least $1,000,000 combined single limit
for bodily injury and property damage for each occurrence; (iv)
comprehensive general liability insurance, including blanket
contractual liability and broad form property damage, with at least
$1,000,000 combined single limit for personal injury and property
damage for each occurrence and umbrella coverage by TanSeco of not
less than $2,000,000. The insurance required under this provision
shall be issued by an insurance company authorized to do business in
the states in which the Services or Other Services are rendered and
the insurance required of TanSeco shall provide for at least thirty
(30) days written notice to RadioShack before any reduction in
coverage, termination, cancellation and/or non-renewal of such
insurance. To the extent it is not in violation of RadioShack's
insurance policy, RadioShack does hereby for itself and any parties
claiming under it, release and discharge TanSeco from and against all
hazards covered by RadioShack's insurance. It is expressly understood
and agreed that no insurance company or insurer will have any claim of
subrogation against TanSeco.
7.2 By RadioShack. During the term of this Agreement, RadioShack agrees
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to obtain and maintain liability, business interruption insurance,
fire and extended coverage insurance on property and the business of
RadioShack in amounts sufficient to protect RadioShack from such
losses.
8. SUBCONTRACTORS.
8.1 TanSeco's Right to Subcontract. TanSeco may subcontract the Services
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and Other Services to one or more of its authorized subcontractors.
However, TanSeco shall (1) be solely responsible for the conduct and
Services or Other Services of all such subcontractors, who shall
comply in all respects to the terms of this Agreement as if such
subcontractors were a party to this Agreement and (2) obtain a written
contract with all subcontractors so that they shall comply with all
terms of this Agreement as if subcontractor were a party to the
Agreement.
8.2 No Agreement Between RadioShack and Subcontractor. No provision of
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this Agreement, or any agreement between TanSeco and any
subcontractor, or any agreement between any subcontractor and any
other subcontractor, shall be construed as an agreement between
RadioShack and any subcontractor. TanSeco shall be as fully
responsible to RadioShack for the acts and omissions of any of
TanSeco's subcontractors or of any other contractors engaged by a
subcontractor, as TanSeco is for the acts and omissions of TanSeco's
own employees.
8.3 Removal of Subcontractors. RadioShack may give written notice to
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TanSeco requesting TanSeco remove a particular subcontractor of
TanSeco from performing any Services or Other Services or any other
functions under the terms of this Agreement. Such notice shall set out
the cause(s) for the request for removal. Upon receipt of such notice,
TanSeco, acting reasonably, shall promptly remove the subcontractor
from any and all connections with providing the Services or Other
Services or other functions under this Agreement, if TanSeco perceives
any reasonable risk, potential or perceived, to RadioShack.
8.4 Bankruptcy of eLinear or TanSeco. In the event that eLinear or TanSeco
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becomes insolvent, or is declared a bankrupt during the term of this
Agreement (unless such bankruptcy is and continues to be a Chapter 11
reorganization bankruptcy), eLinear and TanSeco will allow RadioShack
to deal directly with TanSeco's subcontractors that have been hired
for the purpose of fulfilling TanSeco's obligations under this
Agreement.
8.5 Non-Solicitation. Except as provided in Section 8.4, during the term
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of this Agreement and for a period of six (6) months following
completion of services hereunder or termination of this Agreement,
neither party will, except with the other party's prior written
consent, which consent shall not unreasonably be withheld, hire or
solicit or to hire, either directly or indirectly, the employees or
subcontractors of the other party; provided, however, that such
prohibition shall not apply (i) to RadioShack's use of TanSeco's
subcontractors if TanSeco ceases to be designated as RadioShack's
Preferred Provider under Section 1.3(c) or (ii) to RadioShack's use of
TanSeco's subcontractors with respect to a Purchase Order or a
Proposal if TanSeco rejects such Purchase Order or Proposal. This
prohibition does not apply to employees of either party who respond to
a public announcement or otherwise participate in a public job
solicitation.
9. CONFIDENTIAL INFORMATION.
9.1 Confidential Information of RadioShack. "Confidential Information" of
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RadioShack shall be defined as any and all confidential information
and business information provided by RadioShack to TanSeco relating in
any way to the subject matter of this Agreement, whether furnished
before or after the date of this Agreement and regardless of the
manner in which furnished, including but not limited to: (i)
information relating to the Services or Other Services performed under
this Agreement; (ii) work papers, analyses, compilations, projections,
and statistical data; (iii) product cost and/or sale information and
sales data; (iv) identities of any current pending or future vendors
or planned products and services to be offered or withdrawn by
RadioShack to consumers; (v) planned and future promotions and grand
opening dates; (vi) RadioShack's business plans and forecasts; or
(vii) any document or other items marked "Confidential" or
specifically communicated by RadioShack as "Confidential." Such
Confidential Information is the sole property of RadioShack and
constitutes confidential trade secrets of RadioShack, to be held by
TanSeco in trust and solely for RadioShack's benefit.
9.2 Confidential Information of TanSeco. "Confidential Information" of
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TanSeco shall be defined as any and all confidential information and
business information provided by TanSeco, to RadioShack relating in
any way to the subject matter of this Agreement, whether furnished
before or after the date of this Agreement and regardless of the
manner in which furnished, including but not limited to information
about TanSeco's services relating to: (i) information relating to the
Services or Other Services performed under this Agreement (ii) selling
and marketing; (iii) contractor/subcontractor/installer information
and arrangements, such as, but not limited to, authorized independent
subcontracting installer's names, addresses and listings of same; (iv)
pricing and pricing data, cost and costing information (e.g., product
and labor costs and installation and installer fees), billing; (v)
servicing, suppliers and supplier information, accounting and
finances, (vi) business systems methods, techniques, plans and
policies; or (vii) any documents or other items marked "Confidential"
or specifically communicated by TanSeco as "Confidential." Such
Confidential Information is the sole property of TanSeco and
constitutes confidential trade secrets of TanSeco, to be held by
RadioShack in trust and solely for TanSeco's benefit.
9.3 Restrictions. The receiving party agrees that, except as required in
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the performance of its obligations hereunder and as permitted by the
disclosing party, the receiving party shall not publish, reproduce,
disclose or make any use of any such disclosing party's Confidential
Information unless or until:
(i) such Confidential Information enters the public domain other
than by a breach of this provision by the receiving party, its
employees or affiliates;
(ii) such Confidential Information becomes known to the receiving
party from a source other than the disclosing party, other than
by the breach of an obligation of confidentiality owed to the
disclosing party, or other than by a third party acting to assist
the disclosing party and/or the receiving party regarding this
Agreement;
(iii) the disclosing party authorizes the publication or disclosure of
such information in writing; or
(iv) as may be required by law to be disclosed; provided however, the
receiving party shall first give prompt notice to the disclosing
party so that the disclosing party may seek a protective order
requiring that the information and/or documents to be disclosed
be used only for the purposes for which the order was issued.
9.4 Standard of Care. The receiving party agrees to take at least the
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same precautions to ensure the protection, confidentiality and
security of the Confidential Information entrusted to it and to
satisfy its obligations under this Agreement as it would to protect
its own Confidential Information but in no event less than a
reasonable standard. The receiving party shall also limit the access
to such Confidential Information to only those employees having a need
to know and such employees shall be instructed concerning their
obligations to maintain confidentiality. The receiving party shall
return to the disclosing party all Confidential Information, or
destroy and certify such destruction of all Confidential Information,
promptly upon disclosing party's request.
9.5 Damages. The receiving party acknowledges that monetary damages alone
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may not be a sufficient remedy for unauthorized disclosure of
Confidential Information and that the disclosing party shall be
entitled, without waiving any other rights or remedies, to such
injunctive or equitable relief as may be deemed proper by a court of
competent jurisdiction. Further, the receiving party acknowledges and
agrees that if there is a breach or threatened breach of the
provisions regarding confidentiality, the disclosing party will be
irrevocably harmed and entitled to a temporary restraining order, an
injunction and/or other equitable relief against the commencement or
continuance of such breach without the requirement of posting a bond
or proving injury as a condition of relief.
9.6 Survival. This confidentiality provision shall survive the expiration
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or termination of this Agreement for a period of two (2) years and
shall inure to the benefit of and be binding upon any parent,
subsidiary, affiliate and successor of the parties.
10. REPORTS, AUDITS AND NOTIFICATIONS.
10.1 Reports on Progress. TanSeco will provide RadioShack the reports as
--------------------
to its progress in performing the Services or Other Services, with
such reports to be provided for such periods and to include the
information each as set forth on Exhibit X. XxxXxxx shall, from time
---------
to time upon the request of RadioShack, supply to RadioShack such
information, reports, books and records, written or otherwise,
reasonably requested by RadioShack within ten (10) business days of
such request, if, and to the extent that, TanSeco's systems capture
the information.
10.2 Audit. Each party shall keep, maintain and preserve in its principal
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place of business, during the Term and for at least two (2) years
following termination or expiration of this Agreement, or any renewals
hereof, complete and accurate records relating to this Agreement. Such
records shall be available for inspection and/or audit during normal
business hours and upon reasonable written request by the party
requesting the audit or its designees. Neither party shall be
permitted to audit the other party's records more than twice in any
twelve (12) month period.
11. FORCE MAJEURE. Neither party shall be liable for any loss, damage, cost,
delay or failure to perform resulting in whole or in part from any cause
beyond such party's reasonable control, including but not limited to,
fires, floods, strikes or other labor disputes, equipment breakdowns,
insurrections, riots, failures or delays by suppliers or subcontractors, or
requirements of any governmental authority.
12. TERM AND TERMINATION.
12.1 Term. Unless earlier terminated in accordance with this Section 12,
----
this Agreement shall continue for a period of three (3) years from the
effective date set forth above. Either party may terminate the
Agreement at the end of the three (3) year term by giving the other
party not less than ninety (90) days prior written notice of such
termination. Unless this Agreement is so terminated, this Agreement
shall automatically renew for successive one year terms, unless either
party provides prior written notice of termination not less than
ninety (90) days prior to such automatic renewal.
12.2 Early Termination.
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i) Upon breach of any material term of this Agreement by either party,
the other party may give written notice of such breach to the
breaching party who shall have thirty (30) days to cure such breach
("Curative Period"); upon the failure of such breaching party to cure
such breach within the Curative Period, the other party may
immediately terminate this Agreement. For purposes of clarification,
curing a breach hereunder shall refer not only to the breaching
party's curing a specific event but shall also include the breaching
party's presenting a reasonable plan detailing the cure of the issue
underlying such breach (e.g., a plan addressing a failure to perform
Services that meet applicable code requirements).
ii) If a party becomes insolvent or adjudged a bankrupt (unless such
bankruptcy is and continues to be a Chapter 11 reorganization
bankruptcy) or makes an assignment for the benefit of creditors, the
other party may, upon written notice to the other party, immediately
terminate this Agreement.
iii) If a party becomes subject to any merger, investment, stock transfer
or acquisition, asset transfer or acquisition, or change in
directorships or managers that has the effect of substantially
changing the group of individuals or entities who have the ability to
direct the affairs of such party or any parent or subsidiary of such
party (hereinafter a "Change of Control"), without the consent of the
other party (which consent shall not be unreasonably withheld or
delayed), the other party may upon written notice, immediately
terminate this Agreement. Notice of any Change of Control shall be
given to the other party at least thirty (30) days prior to the
effective date of such Change of Control.
14. OTHER PROVISIONS.
14.1 Applicable Law; Jurisdiction. The construction, performance and
------------------------------
interpretation of this Agreement shall be governed by the laws of the
State of Texas. The Parties expressly consent to the personal
jurisdiction of the federal and state courts having jurisdiction
within Texas.
14.2 Notices. All notices and other communications required or permitted
-------
hereunder shall be in writing and shall be mailed by certified or
registered mail, postage prepaid with return receipt requested,
telecopy, or delivered by hand, messenger or overnight courier
service, and shall be deemed given when received at the addresses of
the parties set forth below, or at such other address furnished in
writing to the other parties hereto.
If TanSeco: TanSeco Security Systems, Inc.
0000 Xxxx Xxx Xxxxxxx Xxxxxxx Xxxxx
Xxxxx X-000
Xxxxxxx, Xxxxx 00000
Attention: President
Fax: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxxxx PC
0 Xxxxxxxx
Xxxxxxx, Xxxxx
Attention: Xxxxxx Xxxxxxxxx
Fax: (000) 000-0000
If to the Seller: RadioShack Corporation
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Vice President - Loss Prevention
and Security
Fax: (000) 000-0000
With a copy to: RadioShack Corporation
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Vice President - Law
Fax: (000) 000-0000
The persons and addresses set forth above may be changed from time to
time by a notice sent as aforesaid. If notice is given by delivery in
accordance with the provisions of this Section, said notice shall be
conclusively deemed given at the time of such delivery. If notice is
given by mail in accordance with the provisions of this Section, such
notice shall be conclusively deemed given upon the second (2nd)
business day following deposit thereof in the United States mail. If
notice is given by telecopy in accordance with the provisions of this
Section, such notice shall be conclusively deemed given upon receipt
by the sender of an affirmative transmission confirmation.
14.3 No Third Party Beneficiaries. The parties agree and acknowledge that
----------------------------
this Agreement is not made for the benefit of any third party.
14.4 Entire Agreement. This Agreement and the Exhibits constitute the
-----------------
entire understanding of the parties with respect to the subject matter
hereof and cancels and supersedes any previous and contemporaneous
contracts, agreements or understanding between the parties regarding
the subject matter hereof, and may not be modified except by an
instrument in writing signed by the parties.
14.5 Assignment. Neither party shall assign any of its rights or
----------
obligations hereunder without the prior express written consent of the
other party. Notwithstanding the preceding sentence, either party may
assign this Agreement to a parent, subsidiary or affiliated entity
without the other party's consent, provided that such assigning party
shall continue to be responsible for the performance of all of its
obligations under this Agreement notwithstanding such assignment.
RadioShack acknowledges that, subject to Section 8 of this Agreement,
TanSeco may delegate its duties to perform Services to subcontractors
as set forth in this Agreement. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefits of the
parties, and their respective successors and assigns.
14.6 Modification. This Agreement may not be amended or modified by either
------------
party, unless such amendment or modification is made in writing and
executed by both parties.
14.7 Headings. The headings contained herein are for the convenience of
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reference only and are not of substantive effect.
14.8 Gender and Number. Within this Agreement and any exhibits or addenda
-----------------
incorporated herein, words of any gender include any other gender, and
words in the singular number include the plural, unless the context
otherwise requires.
14.9 Severability. If any provision herein shall be deemed or declared
------------
unenforceable, invalid or void by a court of competent jurisdiction,
the same shall not impair any of the other provisions contained herein
which shall be enforced in accordance with their respective terms.
14.10 Remedies; Waiver. No failure or delay by either party hereto to
-----------------
exercise any rights, power or privilege provided under this Agreement
or by applicable law shall operate as a waiver thereof, nor shall any
single or partial exercise of any such rights, power, or privilege
preclude any other or future exercise thereof of the exercise of any
other right, power or privilege. The remedies provided herein shall be
cumulative and shall not be exclusive of any rights or remedies
provided by law.
14.11 Warranty of Authority. Each party represents and warrants to the
-----------------------
other that it is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, and has the
requisite power and authority to exercise and deliver, and to perform
its obligations under this Agreement. Each party represents and
warrants to the other that this Agreement has been duly authorized,
executed and delivered by such party and constitutes a valid and
binding obligation of such party enforceable against such party
according to its terms.
14.12 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which may be executed by less than all of the
parties to this Agreement, each of which shall be enforceable against
the parties actually executing such counterparts, and all of which
together shall constitute one instrument.
14.13 Attorneys' Fees. If any action is brought to enforce the terms of
----------------
this Agreement, the prevailing party shall be entitled to recover its
costs and reasonable attorneys' fees.
14.14 Time of Essence. With regard to all dates and time periods set forth
---------------
or referred to in this Agreement, time is of the essence.
* * * * *
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
TANSECO SYSTEMS, INC.
By:__________________________________________
Name: Xxxxxxx Xxxxx
Title: President
RADIOSHACK CORPORATION
By:__________________________________________
Name: Xxxx X. Xxxx
Title: Senior Vice President -
Chief Administrative Officer,
General Counsel and Secretary
