AGREEMENT FOR OUTSOURCING SERVICES
THIS AGREEMENT FOR OUTSOURCING SERVICES (the "Agreement") is between
PST Vans, Inc., a Utah corporation, with a principal business address of 0000
Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 ("Customer"), and THE SABRE GROUP,
INC., a Delaware corporation, with a principal business address of 0000 Xxxx
Xxxxxx Xxxx., Xxxx Xxxxx, Xxxxx 00000 ("TSG").
WHEREAS, TSG is engaged in the business of providing certain data
processing outsourcing, facilities management and information processing
services; and
WHEREAS, Customer and TSG wish to enter into a services agreement
pursuant to which TSG shall provide to Customer the outsourcing and information
processing services described in this Agreement, and upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the above premises, the Parties
hereby agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions. All terms beginning with a capital letter in this
Agreement are defined in Schedule 1.1. Schedule 1.1 also sets forth various
interpretive matters for this Agreement.
1.2 Exhibits and Schedules. When this Agreement refers to an Exhibit or
Schedule, such Exhibit or Schedule is deemed incorporated herein by reference
for all purposes. All Exhibits and Schedules as agreed to after the Effective
Date shall be deemed incorporated herein upon the Parties Consent.
ARTICLE 2
TERM
2.1 Term of Agreement. Unless earlier terminated as provided herein,
the term of this Agreement (the "Term") shall commence on the Effective Date and
shall end on the fifth anniversary of the Effective Date (the "Expiration
Date"), or such anniversary thereof to which the Term is extended pursuant to
Section 2.2 hereof.
2.2 Extensions of the Term. The Term shall be automatically extended
for successive one (1) year periods after the Expiration Date, unless either
Party gives written notice of its intent not to renew the Agreement at least six
(6) months prior to the date on which the then-current Term expires. In the
event that either of the Parties wish to modify the terms of this Agreement for
a renewal period, the Parties shall mutually agree in writing to such
modifications prior to the commencement of the relevant renewal period in
accordance with the Change Order Process set forth in Section 3.5 below.
ARTICLE 3
SERVICES AND EXCLUSIVITY
3.1 Services in General. TSG shall perform the Services described in
Schedule 3.1 for Customer. The Parties may make revisions to the nature and
scope of the TSG Services from time to time during the Term to reflect changes
and improvements to such TSG Services upon mutual written agreement as provided
in Section 3.5 below. In the event Customer contemplates the acquisition of
another truck carrier, TSG further agrees it will provide Customer with a cost
estimate for the integration of such truck carrier under the terms and
conditions of this Agreement.
3.2 New or Additional Service. Prior to engaging a third party to
provide a New or Additional Service, Customer shall first exclusively negotiate
with TSG for TSG to provide Customer such New or Additional Service. If, within
fifteen (15) days, or such longer period of time as the parties may mutually
agree, after the date the Parties have commenced bona fide negotiations
regarding such New or Additional Service, the Parties have not reached an
agreement for TSG to provide such New or Additional Service to Customer,
Customer shall be free to solicit proposals from third party vendors. Prior to
accepting any bona fide proposal from a third party vendor to supply Customer
any New or Additional Service, Customer shall provide TSG with a full and
complete copy of such third party proposal and TSG shall thereafter have a
period of thirty (30) days to elect to provide Customer with such New or
Additional Service on the same terms and conditions are contained in the third
party proposal. Further, Customer shall have an obligation to consult with TSG
in any selection process for New or Additional Services, in order to ensure
consistency and compatibility with the existing information technology
infrastructure and protection of TSG intellectual property rights.
3.3 TSG Rights to Manage TSG Resources. Subject to the other provisions
of this Agreement, TSG shall have the right to manage all resources used in
providing the TSG Services as TSG deems appropriate. Nothing in this Agreement
shall prevent TSG from changing, consolidating, eliminating or adding, after the
Effective Date, locations at which it provides the TSG Services; provided,
however, the SLAs shall continue to apply to the TSG Services provided
hereunder.
3.4 Exclusive Services. During the Term, TSG shall be the sole and
exclusive provider to Customer of the TSG Services covered by this Agreement.
Customer shall not use any other providers to render such services to Customer,
nor may Customer perform any of such services on its own behalf.
3.5 Change Order Process. All proposed changes by Customer (including
Customer's proposed changes to meet or take advantage of changing technology
requirements and opportunities) to the Services, which would affect the delivery
of the Services or the satisfactions of any SLAs (collectively, "Changes") shall
be subject to using a formal change control process. Under the process, Customer
will notify TSG of a proposed Change via a Change Request Form which will
include a technical and risk impact, priority, and specification of desired
implementation date. TSG will assess the impact of the changes and communicate
to Customer in writing the impact assessment including a proposed implementation
plan and additional costs to Customer within thirty (30) days of receiving from
Customer all final requirements necessary for preparing the impact assessment.
The Customer will provide TSG with written approval of the authorization to
proceed and agreement to pay, within thirty (30) calendar days after receiving
TSG's impact assessment. TSG and Customer will execute a written supplement to
this Agreement setting forth any special terms and conditions applicable to the
Change. No Changes will be implemented without first satisfying the process set
forth in the Section 3.5, and execution of a written supplement to this
Agreement setting forth applicable specifications, schedules, resources to be
utilized, responsibilities of the Parties, definition of successful completion,
any changes in SLAs and any additional charges resulting from the Change. The
process set forth in this Section shall also apply to any capitol expenditures
contemplated by TSG in connection with the performance of the Services which
affects the charges for the Services.
3.6 Keep Technology Current. TSG agrees to use reasonable efforts,
without an increase in charges to the Customer or costs the Customer would have
to bear, to keep the technology used in providing the Services current, and at a
level at least as high as the level generally utilized in the trucking
transportation industry. In the event that technology improvements would cause
TSG to incur costs in addition to the costs TSG would otherwise have incurred in
providing the Services or would cause the Customer to incur costs it would not
otherwise incur, Customer and TSG shall meet to discuss whether to implement
such improvements. At Customer's sole option, TSG will (i) implement such
improvements and charge the Customer for TSG's increased costs, or (ii) not
implement such improvements and continue to use TSG's then-existing technology.
ARTICLE 4
Other TSG Obligations
4.1 Transitioned Employees.
4.1.1 Immediately following Customer's acceptance of the
Trucomm Software, TSG will extend offers of regular full-time employment to the
employees of Customer identified on Schedule 4.1.1 (the "Employees") in
accordance with TSG's normal employment policies. The Employees who (a) accept
employment with TSG pursuant to this offer, (b) if requested, sign the
corresponding labor agreement with TSG within three (3) days after presentation
of an employment offer, and (c) begin employment with TSG, shall be referred to
herein as the "Transitioned Employees."
4.1.2 TSG agrees to offer each of the Transitioned Employees
employment with at least the same salary currently earned at Customer at the
time such offers are made, as listed on Schedule 4.1.1. TSG shall provide the
benefits to the Transitioned Employees in accordance with TSG's standard
policies. Any severance, pension, or other benefits or rights to which the
Transitioned Employees are entitled by virtue of the termination of their
employment with Customer shall be the responsibility of Customer.
4.2 TSG Account Manager. During the Term, TSG will provide an account
manager (the "TSG Account Manager") who shall consult with Customer and consider
Customer's needs. The TSG Account Manager will (a) have overall responsibility
for managing and coordinating the delivery of the TSG Services, (b) serve as the
primary point of contact for Customer in addressing issues concerning each
party's obligations or requests for modifications under this Agreement, (c)
provide periodic status reports to Customer, and (d) coordinate and consult with
Customer management.
4.3 Retention and Safeguarding of Customer Data. TSG will store and
safeguard magnetic tapes and other magnetic or optical storage media containing
Customer Data in the possession or custody of TSG for the retention periods
mutually agreed upon by the Parties in writing. Prior to and during Migration,
TSG will maintain the same safeguards which were in use by Customer at the
Customer's Data Center to protect against the accidental or unauthorized
deletion, destruction or alteration of the Customer Data in TSG's possession.
Following the Migration, TSG will maintain the same safeguards it uses, but not
less than reasonable means, to protect similar clients against the accidental or
unauthorized deletion, destruction or alteration of Customer Data in the
possession of TSG at the TSG Data Center. If Customer reasonably requests
additional safeguards, TSG will provide such additional safeguards at rates and
upon terms and conditions to be mutually agreed to in writing by the parties. If
any applicable regulatory authority requires a longer retention schedule than
that agreed to by the Parties for such tapes or the data contained thereon, TSG
will comply with such requirements and Customer will pay TSG at TSG's then
current commercial rates (as published from time to time by TSG) for such
compliance.
4.4 Migration. As soon as practicable following the Effective Date, TSG
shall consult with Customer regarding, and develop, a written migration plan
(the "Migration Plan") which will describe the tasks to be performed by TSG and
Customer in connection with the migration of the TSG Services to the TSG Data
Center. During the Transition Period, the TSG Services will continue to be
performed from Customer's Data Center. Pursuant to the Migration Plan, TSG will
configure systems at the TSG Data Center, establish the test environment for
data processing operations to be performed at the TSG Data Center, install
equipment and Software at the TSG Data Center, and provide network consultation.
Prior to completion of the Migration Plan, Customer shall obtain, on a timely
basis, any Required Consents necessary to permit TSG to perform the TSG
Services, including those services provided pursuant to the Migration Plan.
ARTICLE 5
CUSTOMER RESPONSIBILITIES AND DUTIES
5.1 Customer Employees.
5.1.1 Customer will cooperate with TSG in offering employment
to the Employees. Customer has not made and will not make any representation or
promise, whether written or oral, to the Employees regarding employment with
TSG, or the employment benefits, plans or practices of TSG, without obtaining
the Consent of TSG.
5.1.2 Without TSG's Consent, Customer shall not, for a period
of eighteen (18) months from and after the Effective Date, solicit for
employment, employ or otherwise utilize (directly or indirectly) the services of
any Employee who rejects an employment offer from TSG made pursuant to Section
4.1 above.
5.1.3 All accrued severance, pension and other obligations, if
any, with respect to the Transitioned Employees shall remain the responsibility
of Customer.
5.1.4 On the Effective Date, Customer shall pay to each of the
Transitioned Employees an amount equal to the accrued sick time and vacation
time held by such Transitioned Employees as of the Effective Date.
5.2 Customer Facilities and Related Services. Commencing on the
Effective Date, Customer will provide to TSG, at Customer's expense, such space,
parking, office furnishings, janitorial service, telephone and facsimile
services (excluding such charges as may be incurred by TSG and which are
unrelated to the business of Customer), utilities, office-related equipment,
supplies, duplicating services, and security services at the Customer Data
Center and at such other Customer facilities as TSG may require in performing
the TSG Services. Customer will also provide, at Customer's expense, all
required internal building piping, cabling, electrical installations for TSG at
the Customer Data Center and any other Customer facility in which the TSG
Services will be performed. Customer will provide TSG with legal and physical
access to Customer's facilities 24 hours a day, seven (7) days a week, for
purposes of performing the TSG Services. Customer represents to TSG that all
facilities provided by Customer under this Agreement are and shall remain free
of health and safety hazards, and that Customer shall comply with and remain in
compliance with all applicable laws and operational, environmental and safety
requirements for the proper operation of the TSG Services.
5.3 Customer Owned Equipment.
5.3.1 Commencing on the Effective Date, Customer will provide
to TSG, at Customer's expense, legal and physical access to and the use of the
"Customer-Owned Equipment" consisting of (a) all equipment owned by Customer and
used by Customer's information technology staff immediately prior to the
Effective Date and necessary for performance of the services and functions to be
performed by TSG pursuant to this Agreement, (b) any additions to or
replacements for such Customer-Owned Equipment that may be reasonably requested
by TSG in order to perform the TSG Services, and (c) any other equipment that
Customer may acquire from time to time for use by TSG in providing the TSG
Services. The Customer-Owned Equipment will remain the property of Customer and
that TSG may from time to time relocate the Customer-Owned Equipment to another
TSG facility for the sole purpose of performing the TSG Services. The
Customer-Owned Equipment initially shall be provided in good working order and
condition, and shall be accompanied by all manuals, instructions, written
warranties and other materials, in Customer's possession, which may be relevant
to TSG's operation of the Customer-Owned Equipment.
5.3.2 Customer will pay all on-going costs and expenses
relating to the Customer-Owned Equipment, including, without limitation, the
insurance, maintenance and taxes. If Customer is requested by TSG to purchase
additional or replacement Customer-Owned Equipment, and Customer determines that
additions to or replacements of the Customer-Owned Equipment are not needed or
declines to participate in the acquisition thereof to a degree acceptable to
TSG, TSG shall thereafter be relieved of any obligations under this Agreement
(including but not limited to the SLAs), to the extent the failure to acquire
such additions or replacements adversely affects TSG's ability to properly
perform those obligations.
5.4 Customer Leased Equipment.
5.4.1 Schedule 5.4 contains a listing of equipment leased by
Customer and used by Customer's information technology staff immediately prior
to the Effective Date for purposes of performing the services and functions to
be performed by TSG pursuant to this Agreement (the "Customer-Leased
Equipment").
5.4.2 As of the Effective Date, Customer will provide to TSG,
at Customer's expense, legal and physical access to and the use of the Customer
Leased Equipment, as well as any renewals of, additions to or replacements for
such leased equipment that may be reasonably requested by TSG in order to
perform the TSG Services. The Customer-Leased Equipment will remain the leased
equipment of Customer, and that Customer shall procure for TSG the right to
relocate the Customer-Leased Equipment to the TSG Data Center from time to time
for the sole purpose of performing the TSG Services. Customer will pay all costs
and expenses relating to the Customer-Leased Equipment, including without
limitation, lease payments, insurance, maintenance fees and taxes. During the
Term, TSG will manage the Customer-Leased Equipment and Customer hereby appoints
TSG as its sole agent for matters pertaining to such Customer-Leased Equipment.
Customer shall promptly notify all appropriate third parties of such
appointment.
5.4.3 TSG will not be responsible for any default by vendors
or other third parties with respect to the operation or maintenance of any
Customer-Leased Equipment. If TSG requests that Customer obtain any additional
or replacements of any Customer- Lease Equipment and Customer determines that
renewals of, additions to or replacements of any Customer-Leased Equipment are
not needed or declines to participate in the acquisition thereof to a degree
acceptable to TSG, TSG shall thereafter be relieved of any obligations under
this Agreement (including but not limited to the SLAs), to the extent the
failure to acquire such additions or replacements adversely affects TSG's
ability to properly perform those obligations.
5.5 Third Party Services.
5.5.1 Commencing on the Effective Date, Customer will make
available to TSG, at Customer's expense, (i) all services provided by third
parties and used by Customer's information technology staff immediately prior to
the Effective Date for purposes of performing the services and functions to be
performed by TSG pursuant to this Agreement, including the third party services
described in Schedule 5.5.1 (the "Third Party Services"); and (ii) any renewals
of, additions to or replacements for the Third Party Services that may be
reasonably requested by TSG in order to perform the TSG Services. TSG will
manage all Third Party Services on behalf of Customer during the Term in
accordance with the terms and conditions of the applicable third party service
agreements. Included within the Third Party Services shall be all
telecommunications and data lines and circuit provider agreements, with Customer
acknowledging that TSG is not a licensed provider of communications circuits and
therefore shall only be responsible for monitoring such providers' performance
of its obligations to provide and maintain the communications circuit, work with
such provider and Customer to resolve problems with the communications circuit,
and take all reasonable actions (including contract enforcement) to cause such
provider to perform such obligations.
5.5.2 Customer will pay all costs and expenses associated with
the Third Party Services agreements. Customer's exclusive remedies for any
service problems relating to any Third Party Services will be the remedies set
forth in the applicable third party service agreement. Customer hereby appoints
TSG as its sole agent for all matters pertaining to the Third Party Services,
and Customer shall promptly notify all appropriate third parties of such
appointment. If Customer determines that renewals, additions to or replacements
of any Third Party Service is not needed or declines to participate in the
acquisition thereof to a degree acceptable to TSG, TSG shall thereafter be
relieved of any obligations under this Agreement (including but not limited to
the SLAs), to the extent the failure to acquire such renewals, additions or
replacements adversely affects TSG's ability to properly perform those
obligations.
5.6 Customer Contract Manager. During the Term, Xxxx Xxx, or his
designee or any successor identified to TSG by Customer in writing, will be the
designated contract manager (the "Customer Contract Manager") who will be
authorized to act as the primary point of contact for Customer in addressing
issues concerning each party's obligations or requests for modifications under
this Agreement, and shall have authority to execute modifications or additions
to this Agreement on behalf of Customer.
5.7 Assistance. Customer will provide TSG with all necessary and
reasonable resources, information and other assistance, as may be agreed by the
parties from time to time, in connection with the activities contemplated by
this Agreement and shall punctually perform its obligations under this
Agreement. TSG shall be relieved of any obligations under this Agreement to the
extent caused in whole or in part by Customer's failure to comply with this
Section 5.7.
5.8 Use of TSG Services. Except with the written consent of TSG or as
otherwise set forth in this Agreement, Customer may not (i) use the TSG Services
for any purposes other than for Customer's internal trucking operations, or (ii)
transfer any material or information related to the TSG Services, in any form
whatsoever, to any third party or allow any third party to access or use any
such material or information.
5.9 Customer Licensed Software. As of the Effective Date, Customer will
obtain any licenses, consents, approvals or authorizations from third parties
necessary for TSG to legally and physically access and use the Customer Licensed
Software required for TSG to perform the Services, as described on Schedule 5.9,
and will provide written evidence of such consents to TSG upon TSG's request.
Customer will pay all costs and expenses associated with the Customer Licensed
Software, including all required license, access fees, installation, maintenance
and upgrade fees, and any fees or charges which may be necessary to bring
Customer into compliance with its existing software licenses. The Customer
Licensed Software will be made available to TSG in a form and on media
compatible with the equipment TSG is then operating on Customer's behalf,
together with appropriate documentation and other materials. Customer shall
comply with the applicable license agreements for all Customer Licensed
Software. Customer represents and warrants that all Customer Licensed Software
required for TSG to perform the Service is listed on Schedule 5.9.
5.10 Customer Owned Software. Customer will provide TSG with object
code and source code for the Customer Owned Software, as described on Schedule
5.10, together with any consents, approvals or authorizations from third parties
necessary for TSG to legally and physically access and use the Customer Owned
Software, in both object code and source code form, for purposes of providing
the TSG Services, and will provide written evidence of such consents to TSG upon
TSG's request. The Customer Owned Software will be made available to TSG in a
form and on media compatible with the equipment TSG is then operating on
Customer's behalf, together with appropriate documentation and other materials.
The Customer represents and warrants that all Customer Owned Software necessary
for TSG to perform the Services is listed on Schedule 5.10.
5.11 Failure to Obtain Required Consents. In the event that any
Required Consent is not obtained with respect to any of the Customer Leased
Equipment, Third Party Services, Customer Licensed Software, or Customer Owned
Software, then, unless and until such Required Consent is obtained, the Parties
shall cooperate in achieving a reasonable alternative arrangement. If Customer
fails to provide to TSG any Required Consent required to be provided under this
Agreement, then (i) TSG shall be excused from performing the TSG Services (or
New or Additional Services, if applicable) if and to the extent such
nonperformance results from such failure, and TSG's nonperformance will not be
deemed to be a breach of this Agreement or grounds for termination of this
Agreement by Customer, and (ii) if the Required Consent relates to a TSG Service
covered under the Monthly Base Charge, until such time as such Required Consent
has been obtain, TSG will adjust the Monthly Base Charge in an amount as its
deems reasonable and appropriate.
5.12 Training of Customer Personnel. Customer will train Customer's
personnel to properly prepare input for, and appropriately use, output from the
TSG Software. Customer will provide appropriate training for all new Customer's
employees on Software then in use by or on behalf of Customer.
5.13 Provision of Source Data. Customer will promptly supply to TSG for
processing all required source data and machine readable data with applicable
control totals (i) in the form presently used in Customer's information
technology operations, or (ii) in such form and on such time schedule as set
forth in the documentation provided to TSG by Customer, and as may be reasonably
requested by TSG with respect to the performance of the TSG Services. Customer
will be responsible for the quality, accuracy and legibility of the data
provided to TSG. TSG will not be liable for any default in its performance of
the TSG Services which is due to any insufficiency of the source data provided
by Customer to TSG.
5.14 Inspection. Customer will timely inspect and review all reports
and output provided by TSG. Customer will notify TSG of any incorrect (i) daily
or weekly reports within one (1) business day after receipt of such reports, and
(ii) monthly or other reports within three (3) business days after receipt of
such reports.
5.15 Supplies.
5.15.1 Customer will provide, at Customer's expense, any
preprinted, customized forms and supplies specifically and uniquely designed for
Customer's business operations ("Special Forms"), as reasonably requested by TSG
for use in performing the TSG Services. TSG will be responsible for providing
appropriate inventory controls for standard data processing forms and supplies.
TSG will also maintain inventory controls for Customer's Special Forms unless
such forms require more than standard security.
5.15.2 From time to time during the Term, TSG will inform
Customer that it needs to purchase certain preprinted, customized forms and
supplies specifically and uniquely designed for Customer's business operations.
TSG will provide Customer with its specifications (quantity and quality) for
such supplies for purposes of performing the TSG Services. Customer will (i)
contract with the third party vendor of its choice for such forms and supplies,
(ii) order and arrange for the delivery of the requested forms and supplies to
TSG, and (iii) pay all costs and expenses associated with such forms and
supplies. TSG will manage such third party vendor on behalf of Customer during
the Term in a manner consistent with the terms and conditions of the applicable
third party agreement. TSG will not be responsible if the third party vendor
fails to deliver the forms and supplies on a timely basis, and Customer's
remedies for any service problems will be the remedies set forth in the
applicable third party agreement. Customer hereby appoints TSG as its primary
contact to manage all matters pertaining to such services and shall promptly
notify all appropriate third parties of such appointment.
5.16 Governmental Approvals. Customer shall, at its expense, cooperate
and provide reasonable assistance to TSG in obtaining all required governmental
approvals which are a prerequisite to this Agreement becoming effective or as
may be necessary for TSG to perform the TSG Services.
ARTICLE 6
SERVICE LEVELS
6.1 Establishment of SLA's. During the six (6) month period commencing
as of the Effective Date, TSG's Account Manager and Customer's Contract Manager
shall establish appropriate SLA's for the performance of the TSG Services. Upon
the Parties' Consent, any SLA established hereunder shall be set forth in a
written amendment or supplement to this Agreement. The metrics which TSG will
measure during the six (6) month period for purposes of establishing the SLA's
are set forth in Schedule 6.1.
6.2 SLA Standard. Each SLA shall specify the SLA Standard for the
services subject to such SLA.
6.3 Monitoring. TSG shall capture and retain information and monitor
its performance of the TSG Services in accordance with the SLAs. TSG's adherence
to the SLA Standards shall be evaluated and reported to Customer on or before
the tenth (10th) day of every month.
6.4 Costs of Implementing Monitoring. Customer shall pay to TSG the
incremental costs incurred by TSG in obtaining or developing the monitoring
systems.
6.5 Correction of Deficiencies. TSG is obligated to cure or correct its
errors, mistakes, and deficiencies in service under the SLAs, at no additional
cost to Customer. TSG will use its commercially reasonable efforts to cure or
correct any such errors, mistake or deficiencies within thirty (30) days from
Notice from Customer identifying the error, mistake or deficiency.
ARTICLE 7
FEES AND CHARGES
7.1 Fees and Charges.
7.1.1 In consideration of the performance of the TSG Services,
for each month during the Term, Customer shall pay TSG a monthly base charge,
according to the rates for the TSG Services set forth on Schedule 7.1 (the
"Monthly Base Charge"), subject to adjustment as provided in Section 7.2 below.
The Monthly Base Charge shall be prorated on a per diem basis for any partial
month. In addition, Customer shall pay all other sums due and payable in
accordance with Schedule 7.1.
7.1.2 For any New or Additional Services provided to Customer
by TSG, Customer will pay TSG (a) for New or Additional Services charged on a
time and material basis, the hourly rate of $100, for the initial 12-month
period, which may be increased by TSG after the initial 12-month period but not
to exceed $135.00 during the initial Term of this Agreement, plus mutually
agreed upon material prices, (b) for New or Additional Services charged other
than on a time and material basis, the amounts mutually agreed upon by Customer
and TSG for such New or Additional Services and (c) any reasonable out-of-pocket
expenses of TSG as provided in Section 7.4.
7.1.3 In the event TSG pays for any Third Party Services
directly to the provider thereof, the invoices for such Third Party Services
will be passed through directly to Customer with no xxxx-up by TSG. TSG will
endeavor to obtain from the Third Party Service providers more favorable rates
under such Third Party Services agreements than paid by Customer upon the
execution of this Agreement.
7.2 Adjustment to Charges. During each calendar year, TSG may adjust
the fees and charges for the TSG Charges and any New of Additional Services by
an amount not to exceed the annual percentage increase in the Consumer Price
Index for All Urban Consumers (CPI-U) over the prior calendar year. If the CPI-U
is modified or discontinued, the parties shall substitute another comparable
index which measures the relative change in consumer prices. Further, Customer
is currently the only trucking carrier on the IBM AS400 Computer that TSG has
dedicated for use in performance of the TSG Services hereunder. In the event TSG
actually utilizes such IBM AS400 for another trucking carrier, it will promptly
notify Customer and advise if there have been created any economies of scale
resulting from the dual use thereof, and will reduce the Monthly Base Charge to
Customer accordingly.
7.3 Termination Assistance. Customer shall pay TSG for the resources
used by TSG in performing the Termination Assistance Services during the Term of
and after the expiration or termination of this Agreement. For Termination
Assistance Services which are provided by TSG prior to the effective date of
such termination, Customer shall pay for such Termination Assistance Services at
the then current published labor rates. Any Termination Assistance Services
which are provided by TSG to Customer after the effective date of termination
shall be paid at TSG's then current commercial rates for such services.
7.4 Out of Pocket Expenses and Third Party Charges. For any TSG
Services which are provided at a site other than at TSG's offices, Customer will
pay TSG a Per Diem charge. The Per Diem charge shall be the rates published by
the U.S. government for federal employees traveling on government business in
the city where the TSG Services are being performed ("CONUS/OCONUS"). Customer
will also pay, or reimburse TSG for, the actual cost of all local and air travel
and travel-related expenses incurred by TSG in connection with the performance
of the TSG Services hereunder.
ARTICLE 8
INVOICES AND PAYMENT
8.1 Monthly Base Charge. Unless TSG fails to commence performance of
the TSG Services on or before April 6, 1998 for reasons within TSG's sole
control, Customer shall pay to TSG the Monthly Base Charge, in advance, on or
before the first day of each calendar month commencing April 1, 1998. If for
some reason within TSG's sole control, TSG is unable to commence performance of
the TSG Services on or before April 6, 1998, the Parties will negotiate in good
faith a new date the payment of Monthly Base Charge shall begin hereunder.
8.2 Other Charges. TSG shall invoice Customer for all other fees and
charges due under this Agreement on a monthly basis. Invoices shall be sent to
Customer at 0000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attn.: Accounts
Payable.
8.3 Payment. Other than the Monthly Base Charge, any sums due TSG under
this Agreement will be due and payable within thirty (30) days after receipt by
Customer of an invoice from TSG.
8.4 Interest on Overdue Amounts. Any sums due TSG under this Agreement
that is not paid when due shall thereafter bear interest from the date due until
paid at a rate equal to the lesser of (a) two percent per annum more than the
prime rate established from time to time by Citibank, New York N.A., or (b) the
maximum rate of interest allowed by applicable law.
8.5 No Deductions/Set-Off. All payments by Customer hereunder for the
Monthly Base Charge and reimbursement for Third Party Services shall be made
free and clear of and without deduction for any present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, without set-off or reduction for any amounts owed, or claimed, from TSG
by Customer and Customer hereby waives and disclaims any rights of offset or
set-off.
ARTICLE 9
Taxes
9.1 Shipping, Taxes and Import Duties. Customer shall pay, or reimburse
TSG for, (i) all taxes, including but not limited to, Value Added Taxes,
municipal taxes, personal property taxes, franchise taxes, net worth taxes,
sales and use taxes, registration fees, excise taxes, stamp taxes and
importation and custom duty taxes (collectively, the "Taxes") imposed on TSG
arising from this Agreement, excluding Taxes based on TSG's net income; and (ii)
any additional Taxes, income taxes, imposed on TSG as a result of any
reimbursements under clause (i) or (ii) of this Section 9.1. Customer shall
indemnify and hold TSG harmless for any and all tax payments made. Each of the
Parties shall be responsible for the reporting and payment of any ad valorem
taxes due on property owned by it or leased by it from a third party. If
Customer is required by law to make any deduction or to withhold from any sum
payable to TSG by Customer hereunder, (a) Customer shall effect such deduction
or withholding, remit such amounts to the appropriate taxing authorities and
promptly furnish TSG with tax receipts evidencing the payments of such amounts,
and (b) the sum payable by Customer upon which the deduction or withholding is
based shall be increased to the extent necessary to ensure that after such
deduction or withholding, TSG receives and retains, free from liability for such
deduction or withholding, a net amount equal to the amount TSG would have
received and retained in the absence of such required deduction or withholding.
ARTICLE 10
PROPRIETARY RIGHTS
10.1 TSG Proprietary Information. TSG retains all right, title and
interest in and to any and all TSG Software and related Documentation (including
but not limited to any modifications, customizations or enhancements to, or
derivative works of, any TSG Software), software development tools, know-how,
methodologies, processes, technologies or algorithms used in providing the TSG
Services that are trade secrets or proprietary information of TSG or its
Affiliates or otherwise owned or licensed by TSG or its Affiliates. Unless the
Parties separately agree on a case-by-case basis, TSG shall own any software TSG
develops on Customer's behalf under this Agreement, subject to the license
provisions set forth below.
10.2 Customer Data. Information relating to Customer contained in
Customer's data files ("Customer Data") is the exclusive property of Customer.
TSG is authorized to have legal and physical access to and make use of Customer
Data for the sole purpose of performing the TSG Services. Upon expiration or
termination of this Agreement, the Customer Data shall be either erased from the
data files maintained by TSG or, at Customer's written request and expense,
returned to Customer in TSG's then existing machine-readable format and media.
10.3 License. Subject to obtaining any necessary third-party consents
regarding the sublicensing of Third Party Software, TSG grants to Customer,
during the Term, a limited, non-exclusive and non-transferable right and license
to use, in object code form only, the TSG Software and the Documentation,
strictly in accordance with the terms of this Agreement. If Customer pays for
the complete development costs and expenses incurred by TSG for any New TSG
Software provided pursuant to this Agreement, Customer will receive a perpetual,
non-exclusive and non-transferable right and license to use, in object code form
only, to such TSG Software. The rights hereby granted are limited to Customer's
use of the TSG Software and Documentation in connection with Customer's internal
operations and for no other use. Customer's use of any Third Party Software
shall be subject to all of the terms and conditions of the applicable license
agreement between TSG and the licensor of such Third Party Software. Customer
shall make no modifications, alterations, developments or Derivative Works of
the TSG Software or related Documentation. Customer shall further not reverse
engineer, disassemble, compile, reverse compile or decompile the TSG Software.
Customer shall not transfer or sublicense TSG Software or any component thereof,
to any person or entity, whether by operation of law or otherwise, without the
Consent of TSG. In no event will TSG have any liability hereunder for the
failure of Third Party Software, including but not limited to its failure to
operate in accordance with its technical documentation or description except
arising from causes within TSG's full control.
10.4 Protection of Software Rights Against Third Parties. If Customer
becomes aware of any infringement or misappropriation by any third party of the
TSG Software, it shall promptly notify TSG of such infringement or
misappropriation in writing. TSG may, at is own expense, institute suit against
such third party, and Customer shall fully cooperate with TSG, at TSG's expense,
to enjoin such infringement or misappropriation and shall, if requested by TSG,
join with TSG as a party to any action brought by TSG for such purpose.
ARTICLE 11
CONFIDENTIAL INFORMATION
11.1 Confidential Information. As of the Effective Date of this
Agreement, and except as otherwise provided in this Agreement, TSG and Customer
each agree that all information communicated to it by the other, including,
without limitation, the terms of this Agreement, which is (i) written
information marked or identified as confidential, and (ii) oral or visual
information identified as confidential at the time of disclosure, which is
accurately summarized in writing and provided to the other Party in such written
form promptly after such oral or visual disclosure ("Confidential Information")
will be received in strict confidence, will be used only for purposes of this
Agreement, and will not be disclosed by the recipient Party, its agents,
subcontractors or employees without the prior written consent of the other
Party. TSG and Customer each agree to use the same means it uses to protect its
own confidential information, but in any event not less than reasonable means,
to prevent the disclosure of the Confidential Information to outside parties.
However, neither TSG nor Customer shall be prevented from disclosing information
which belongs to such party or is (a) already known by the recipient party
without an obligation of confidentiality; (b) publicly known or becomes publicly
known through no unauthorized act of the recipient Party; (c) rightfully
received from a third party without an obligation of confidentiality; (d)
independently developed without use of the other Party's confidential
information; (e) disclosed without similar restrictions to a third party by the
Party owning the confidential information; (f) approved by the other Party for
disclosure; or (g) required to be disclosed pursuant to a requirement of a
governmental agency or law, if the disclosing Party provides the other Party
with notice of this requirement prior to disclosure.
11.2 Residual Knowledge. TSG shall be free to use the ideas, concepts
or know-how developed by TSG during the performance of the TSG Services that are
in nontangible form and may be retained by TSG's employees. TSG may acquire,
license, market, distribute, develop for itself or others, or have others
develop for it, similar technology performing the same or similar functions as
the technology contemplated by this Agreement. Customer shall also be free to
use the ideas, concept or know-how developed by Customer during the term of this
Agreement that are in nontangible form and may be retained by Customer's
employees.
ARTICLE 12
WARRANTIES
12.1 Mutual Warranties. Each Party represents and warrants to the other
that: (i) it is a corporation duly organized and validly existing and in good
standing under the laws of its jurisdiction of formation and/or place of
principal business; (ii) the performance of its obligations hereunder has been
duly authorized by all necessary corporate action; (iii) this Agreement is a
legal, valid and binding obligation enforceable against it in accordance with
its terms subject, as to enforcement, to bankruptcy, insolvency, reorganization,
liquidation and other laws and equitable principles relating to or affecting the
enforcement of creditors' rights generally as they may be applied in the event
of the bankruptcy, insolvency, moratorium, reorganization or liquidation of, or
the appointment of a receiver with respect to the property of, or a similar
event applicable to, such Party; (iv) neither the execution and delivery of this
Agreement nor the performance of any of its obligations hereunder, nor the
consummation of any of the transactions contemplated hereby, will violate any
agreement to which it is a party or any provision of its Certificate of
Incorporation, Articles of Incorporation, By-Laws or other document of corporate
governance, nor any applicable law, regulation, rule, judgment, order or decree;
and (v) it has duly obtained or made all consents, approvals or authorizations
of, or registrations, declarations or filings with, any governmental authority
which are required as a condition to the valid execution, delivery and
performance of this Agreement on its part.
12.2 No Other Representations or Warranties. THE WARRANTIES SPECIFIED
HEREIN ARE THE ONLY WARRANTIES MADE BY TSG, THE APPLICABLE MANUFACTURERS AND
SUPPLIERS WITH RESPECT TO THE TSG SERVICES. EXCEPT AS OTHERWISE SPECIFIED
HEREIN, THE TSG SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS." THERE ARE
NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT OR FITNESS FOR INTENDED USE OR ANY IMPLIED WARRANTIES ARISING
OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. NO
REPRESENTATION OR OTHER AFFIRMATION OF FACT WHICH IS NOT CONTAINED IN THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION STATEMENTS REGARDING CAPACITY,
SUITABILITY FOR USE, OR PERFORMANCE OF THE HARDWARE COMPONENTS, SOFTWARE OR
DATA, OR RELATING TO THE TSG SERVICES, WHETHER MADE BY TSG OR OTHERWISE, SHALL
BE DEEMED TO BE A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF TSG
OR ANY MANUFACTURER OR SUPPLIER.
ARTICLE 13
LIMITATIONS OF LIABILITY
13.1 Intended Allocation of Risks. The allocation of risks between the
Parties, and the limitations on the Parties' liabilities and remedies, set forth
in this Article 13 and elsewhere in this Agreement are specifically intended by
the Parties, as part of their bargain (i.e., part of the consideration for their
other respective benefits and obligations) in this Agreement. The Parties
acknowledge that they have negotiated, with the advice of legal counsel, such
allocation and limitations.
13.2 Gross Negligence or Willful Misconduct. EXCEPT FOR CUSTOMER'S
OBLIGATION TO MAKE PAYMENTS AS SET FORTH HEREIN, IN NO EVENT WILL EITHER PARTY
BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON, FOR ANY LOSS, LIABILITY,
DAMAGE OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE
PERFORMANCE OR NON-PERFORMANCE OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER, UNLESS
SUCH LOSS, LIABILITY, DAMAGE OR EXPENSE SHALL BE DUE TO THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF SUCH PARTY, OR ITS OFFICERS, DIRECTORS, AGENTS OR
EMPLOYEES.
13.3 Limitation on Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO
THE OTHER PARTY FOR INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL
DAMAGES, INCLUDING DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF
PROFITS, OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
13.4 Limitation on Amount of General Damages. TSG shall have no
liability under or relating in any manner to this Agreement for any General
Damages in excess of (i) with respect to any claim or series of related claims,
an amount equal to the Monthly Base Charge for the calendar month period ending
immediately prior to the date that the claim, giving rise to such General
Damages or liability arose, and (ii) in the aggregate, one million Dollars
(US$1,000,000) during the Term.
13.5 Tort Damages and Indemnifiable Losses. For the avoidance of doubt,
the limits on liability set forth in this Article 13 shall apply to the
liability of a Party to indemnify the other Party's Indemnitees against Tort
Damages or Indemnifiable Losses under Article 14.
13.6 Time for Claims. A Party may assert or make a claim against the
other Party for any breach of this Agreement, or for that other Party's
liability under this Agreement (including an Indemnification Claim), only within
two years after the breach or other event constituting the basis for that claim
occurred, even if not discovered until after that two-year period. Nevertheless,
the two-year limit on the time for asserting or making any claim shall not apply
to a claim (including an Indemnification Claim) based on a Third-Party Claim.
13.7 Warranties. Each Party's warranties in this Agreement are made
solely to and for the benefit of the other Party. No Person other than a Party
may assert or make a claim based on the other Party's warranties under this
Agreement.
13.8 Equitable Relief. To the extent that any monetary relief available
under this Agreement is not an adequate remedy for any breach of this Agreement,
or upon any breach or impending breach of Section 11.1, the non-breaching Party
shall be entitled to injunctive relief as a remedy for that breach or impending
breach by the other Party, in addition to any other remedies granted to the
non-breaching Party in this Agreement. That injunctive relief must be sought
through arbitration in accordance with the Dispute Resolution Procedure.
13.9 Exclusive Remedies. The remedies described in this Agreement are
the exclusive rights and remedies of a Party regarding any breach of this
Agreement or any matter that may be the subject of a claim for liability under
or relating to this Agreement.
13.10 Noncumulative Remedies. If a particular remedy for a breach of,
or the occurrence of any other event described in, this Agreement is specified
in this Agreement, that remedy shall be the exclusive remedy upon such a breach
or event. Nevertheless, if more than one remedy for such a breach or event is
specified in this Agreement, the Party entitled to a remedy must elect or choose
between the available remedies, and may not cumulate or exercise multiple
remedies, upon such a breach or event.
13.11 Waiver of Remedies. No forbearance, delay, or indulgence by a
Party in enforcing this Agreement, within the applicable time limits stated in
this Agreement, shall prejudice the rights or remedies of that Party. No waiver
of a Party's rights or remedies regarding a particular breach of, or occurrence
of any other event described in, this Agreement constitutes a waiver of those
rights or remedies, or any other rights or remedies, regarding any other or any
subsequent breach of, or occurrence of any other event described in, this
Agreement.
ARTICLE 14
INDEMNIFICATION
14.1 Representations and Warranties
14.1.1 Customer shall indemnify, defend and hold harmless the
TSG Indemnitees from and against all losses, claims, obligations, demands,
assessments, fines and penalties, liabilities, expenses and costs (including
reasonable fees and disbursements of legal counsel and accountants), bodily and
other personal injuries, damage to tangible property and other damages, of any
kind or nature, actually suffered or incurred by a TSG Indemnitee resulting
from, arising out of, or relating to, any breach of any representation or
warranty of Customer set forth in Sections 5.9, 5.10 and 12.1 of this Agreement.
14.1.2 TSG shall indemnify, defend and hold harmless the
Customer Indemnitees from and against all losses, claims, obligations, demands,
assessments, fines and penalties, liabilities, expenses and costs (including
reasonable fees and disbursements of legal counsel and accountants), bodily and
other personal injuries, damage to tangible property and other damages, of any
kind or nature, actually suffered or incurred by a Customer Indemnitee resulting
from, arising out of, or relating to, any breach of any representation or
warranty of TSG set forth in Section 12.1 of this Agreement.
14.2 End Users. Customer shall indemnify, defend and hold harmless TSG,
its directors, officers, employees and agents from and against all losses,
claims, obligations, demands, assessments, fines and penalties (whether civil or
criminal), liabilities, expenses and costs (including reasonable fees and
disbursements of legal counsel and accountants), bodily and other personal
injuries, damage to tangible property and other damages, of any kind or nature,
actually suffered or incurred by a person, and resulting from, arising out of,
or relating to, any claim by any End User of Customer.
14.3 Employment Related Matters.
14.3.1 From and after the Effective Date, Customer will
indemnify, defend and hold both TSG's officers, agents and employees harmless
from and against any loss, cost, expense, damage, liability, claim or suit
(including, without limitation, reasonable attorneys' fees and expenses) caused
by or arising out of (i) any hiring, termination or other personnel action taken
by Customer with respect to any Transitioned Employee, to the extent such
actions occurred or claims arose prior to the Effective Date; (ii) any hiring,
termination or other personnel action taken by Customer with respect to any
other current or former employee of Customer; and (iii) the transition of all
Transitioned Employee to employment with TSG pursuant to Section 4.1 of this
Agreement.
14.3.2 From and after the Effective Date, TSG will indemnify,
defend and hold Customer harmless from and against any loss, cost, expense,
damage, liability, claim or suit (including, without limitation, reasonable
attorneys' fees and expenses) caused by or arising out of any hiring,
termination or other personnel action taken by TSG with respect to any
Transitioned Employee, to the extent such actions occurred and claims arose
after the Effective Date and do not result from or relate to a default by
Customer of the terms of this Agreement.
14.4 Infringement.
14.4.1 TSG will defend, at its expense, any action brought
against Customer, to the extent that such action is based on a claim that any
element of the TSG Services constitutes a direct infringement of any duly issued
United States patent, or infringement of any copyright established in the United
States ("Infringement"). TSG shall pay all damages and costs finally awarded
against Customer which are attributable to such Infringement, provided that (i)
TSG is promptly informed by Customer in writing upon Customer's becoming aware
of such claim, (ii) is furnished a copy of each communication, notice or other
action relating to the alleged Infringement received by Customer, and (iii) is
given authority, information and assistance from Customer reasonably necessary
to defend or settle such claim.
14.4.2 Should any element of the TSG Services become, or in
TSG's opinion be likely to become the subject of a claim of Infringement, then
TSG may, at its option and expense; (i) procure for Customer the right to use
such infringing element of the TSG Services free of any liability for
Infringement; (ii) replace or modify the infringing element of the TSG Services
with a non-Infringing substitute otherwise complying with all the functionality
for the replaced services, or (iii) terminate the provision of such infringing
element of the TSG Services and thereby be released from all liabilities with
respect thereto. TSG shall not be obligated to defend, or be liable for costs
and damages, if the Infringement arises out of (y) the Customer facilities or
services, the Customer Owned Equipment, the equipment covered under the Assigned
Leases, the Customer Leased Equipment, the Third Party Services, the Customer
Licensed Software or the Customer Owned Software; or (z) a breach of this
Agreement by Customer.
14.4.3 Customer shall defend, at its expense, any action
brought against TSG, to the extent that such action is based on a claim that any
Customer Licensed Software or Customer Owned Software infringes on any duly
issued United States patent, or infringement of any copyright established in the
United States. Customer shall pay all damages and costs finally awarded against
TSG which are attributable to a claim covered under this Section 14.4.3,
provided that (i) Customer is promptly informed by TSG in writing upon TSG's
becoming aware of such alleged claim, (ii) is furnished a copy of each
communication, notice or other action relating to the alleged claim received by
TSG, and (iii) is given authority, information and assistance from TSG
reasonably necessary to defend or settle such claim
14.4.4 The foregoing sets forth TSG's sole and exclusive
liability, and Customer's sole and exclusive remedies, with respect to any
claims for Infringement.
14.5 Indemnification Procedures.
14.5.1 The indemnification obligations set forth in this
Article shall not apply unless the Party claiming indemnification: (i) notifies
the other promptly of any matters in respect of which the indemnity may apply
and of which the notifying Party has knowledge, in order to allow the indemnitor
the opportunity to investigate and defend the matter, provided, however, that
the failure to so notify shall only relieve the indemnitor of its obligations
under this Article 14 if and to the extent that the indemnitor is prejudiced
thereby; and (ii) gives the other Party full opportunity to control the response
thereto and the defense thereof, provided, however, that the Indemnitee will
have the right to participate in any legal proceeding and to be represented by
legal counsel of its choosing, all at the Indemnitee's cost and expense.
14.5.2 The indemnitor shall not be obligated for any
settlement or compromise made without its consent. The Indemnitee agrees to
cooperate in good faith with the indemnitor at the request and expense of the
indemnitor.
ARTICLE 15
FORCE MAJEURE AND DISASTER RECOVERY
15.1 Force Majeure. Except for the obligations to make payments
hereunder, each Party shall be relieved of the obligations hereunder to the
extent that performance is delayed or prevented by any cause beyond its
reasonable control, including, without limitation, acts of God, public enemies,
war, civil disorder, communications failures, fire, flood, explosion, labor
disputes or strikes or any acts or orders of any governmental authority,
failures or fluctuations in electrical power, heat, light, air conditioning or
telecommunications equipment.
15.2 Disaster Recovery. If requested by Customer, TSG will assist
Customer with developing a disaster recovery plan designed to minimize
disruption to Customer's data processing operations caused by natural or
man-made disasters. Customer will pay TSG additional fees for such plan and for
disaster recovery services, if any, provided by TSG at rates and upon terms and
conditions to be mutually agreed to in writing by the Parties.
ARTICLE 16
DISPUTE RESOLUTION
16.1 Performance Review. The TSG Account Manager and the Customer
Contract Manager will meet as often as shall reasonably be requested by either
Party to review the performance of either Party's obligations under this
Agreement. Each Party will appoint a representative with appropriate authority
whose task it will be to meet for the purpose of resolving any dispute,
controversy or claim. Such representatives will discuss the dispute, controversy
or claim and negotiate a resolution in good faith, without the necessity of any
formal proceeding relating thereto.
16.2 Dispute Resolution. All disputes between the Parties not resolved
by the means described above shall be resolved by arbitration pursuant to the
terms below.
16.2.1 If no further agreement has been reached after such
good faith discussions, then either Party, upon thirty (30) days notice to the
other Party identifying with particularity those areas in dispute, may submit
such dispute to arbitration. Any such arbitration shall be held at Denver,
Colorado under the Arbitration Rules of the Endispute/JAMS ("JAMS"). The
arbitration panel shall consist of three arbitrators. The Parties shall each
nominate an arbitrator within thirty (30) days of the notice submitting the
dispute to arbitration and the nominated arbitrators shall agree on the third
arbitrator within thirty (30) days after the both of them have been nominated.
16.2.2 The Parties agree that the award of the arbitration
shall be the sole and exclusive remedy between the Parties regarding any claims,
counterclaims, issues or accounting presented to the arbitrators; that the award
must be consistent with terms and conditions of this Agreement; that it shall be
made and shall be payable in accordance with the award in U.S. Dollars free of
any tax, deduction or offset; and that any costs, fees or taxes incident to
enforcing the award shall, to the maximum extent permitted by law, be charged
against the Party resisting such enforcement.
16.3 Continued Performance. Unless (a) an action under this Article
involves a claim by TSG for nonpayment by Customer, or (b) this Agreement has
been terminated in accordance with other provisions of this Agreement, TSG shall
continue to perform its obligations under this Agreement during the arbitration
proceedings and Customer shall continue to make payments to TSG in accordance
with this Agreement.
ARTICLE 17
TERMINATION
17.1 Termination for Breach. In the event of certain breaches of this
Agreement, TSG or Customer may terminate this Agreement in accordance with this
Section 17.1.
17.1.1 Upon TSG's Egregious Breach of this Agreement, Customer
may terminate this Agreement, provided that Customer gives TSG thirty (30) days'
written notice of its intent to terminate and TSG fails to cure the breach
within such thirty (30) days; and provided, further, that such cure period will
be extended an additional sixty (60) days if TSG delivers to Customer a written
plan to cure the breach. In both instances, unless TSG cures the material
breach, the termination shall be effective as of the first day following the end
of the cure period or extended cure period as the case may be.
17.1.2 Upon Customer's material breach of its obligation to
pay TSG in accordance with this Agreement, TSG may terminate this Agreement on
ten (10) days prior written notice to Customer of its intent to terminate and
Customer fails to cure the breach within such ten (10) days.
17.1.3 If either Party (i) is adjudicated bankrupt or
insolvent by a court of competent jurisdiction, (ii) substantially ceases to do
business as currently conducted, (iii) fails to pay its debts generally as they
become due, or (iv) takes steps to declare bankruptcy, wind up, dissolve or
liquidate (in each case, other than for the purposes of an amalgamation,
restructuring, or reconstruction pursuant to which the surviving entity becomes
bound by or assumes the obligations under this Agreement), or a receiver,
trustee or similar officer is appointed over (or a lien holder takes possession
of) all or a substantial part of such Party's property or assets, or anything
similar to any of the foregoing occurs in relation to such Party under the laws
of any jurisdiction, the non-defaulting Party may terminate this Agreement on
Notice to the defaulting Party.
17.2 Other Termination Events.
17.2.1 At any time during the Term and upon 180 days prior
written notice, Customer may terminate this Agreement if (a) Customer's gross
revenues for the immediately preceding calendar quarter decreases by more than
one-third (1/3) from the previous calendar quarter twelve (12) months prior to
the quarterly period being measured (e.g., first quarter of 1998 compared with
first quarter of 1997), or (b) PST is merged with or acquired by another
trucking carrier and TSG is unable to provide IT services to both PST and the
other trucking carrier for less than they collectively paid for substantially
similar IT services at the time of the acquisition or merger. Further, at any
time following the 30th month anniversary of the Effective Date of this
Agreement, Customer may terminate this Agreement for its convenience upon
providing Notice to TSG at least 180 days prior to the end of the calendar year
immediately prior to the calendar year in which Customer desires to terminate.
Upon any termination as permitted under this Section 17.2, Customer will pay TSG
for all costs and expenses incurred by TSG in connection with the termination of
this Agreement, including (i) all unamortized capital costs carried by TSG in
connection with this Agreement, (amortization not to exceed five (5) years),
(ii) all unamortized start up costs and expenses incurred by TSG in the
performance of this Agreement (startup cap set at $300,000, amortization not to
exceed five (5) years), (iii) committed fees and expenses in support of this
Agreement that TSG cannot avoid, and (iv) any additional costs and expenses
incurred by TSG in termination of the services such as employee transition or
termination expenses.
17.2.2 If due to new technology that becomes generally
available on the commercial market, Customer is able to obtain from a third
party service provider any service substantially similar to a TSG Service
provided hereunder, at terms and conditions that, when taken as a whole, is more
favorable than the terms and conditions provided under this Agreement, then
Customer shall provide Notice (together with substantiation of the better terms,
conditions and new technology) thereof to TSG. TSG shall have thirty (30) days
following the Notice in which to send Customer a written proposal to modify the
terms and conditions of this Agreement to the extent required so that, if such
modification were accepted by Customer, the terms and conditions applicable to
such TSG Service be as favorable as that provided in the Notice. Customer shall
have thirty (30) days to accept TSG's proposal or present a counter-offer of its
own. If Customer presents a counter-offer, the Parties shall negotiate to modify
this Agreement to the minimum extent required so that, if such modification were
implemented, the terms and conditions of this Agreement, when taken as a whole,
would be as favorable as the terms and conditions offered by the third party. A
failure of the Parties to reach a mutually acceptable modification within thirty
(30) days from the commencement of their negotiations shall constitute a
Dispute.
ARTICLE 18
TERMINATION ASSISTANCE SERVICES; SURVIVAL
18.1 Termination Assistance Services. Upon expiration or termination of
this Agreement, TSG will provide to Customer such termination assistance as may
be reasonably requested by Customer and agreed to in writing by TSG, including
pricing and terms of assistance. Such termination assistance (collectively, the
"Termination Assistance Services") may include, without limitation, the
following:
18.1.1 Developing a plan for the orderly transition of
Customer data processing and telecommunication operations from TSG to Customer.
18.1.2 Providing reasonable training, to Customer's personnel
in the performance of the TSG Services then being performed by TSG.
18.1.3 Except if this Agreement is terminated for nonpayment
by Customer, granting Customer a nontransferable, nonexclusive license or right
to use certain technology (proprietary to TSG) then being used by TSG in
rendering services to Customer to process the Customer Data only, subject to
Customer and TSG entering into an agreement, in form and substance mutually
acceptable to TSG and Customer, containing such terms and conditions as may be
appropriate, including, without limitation, applicable TSG charges for such
license or right to use and terms and conditions to protect the confidentiality
of the TSG materials used in performing the TSG Services.
18.1.4 Using commercially reasonable efforts to assist
Customer, at Customer's cost and expense, in acquiring any necessary rights to
legally and physically access and use any Third Party Software and documentation
then being used by TSG in connection with the processing of the Customer Data
pursuant to this Agreement.
18.1.5 Using commercially reasonable efforts to make available
to Customer, pursuant to mutually agreeable terms and conditions, any Third
Party Services then being used by TSG in connection with the TSG Services.
18.1.6 Furnishing Customer with duplicates of magnetic tapes
or print-outs of Customer's data base or providing Customer with the Customer
Data in a form deemed appropriate by TSG.
18.2 Termination Assistance Period. TSG shall not be required to
perform the Termination Assistance Services for a period in excess of ninety
(90) days from and after the expiration date or the effective date of
termination.
ARTICLE 19
MISCELLANEOUS
19.1 Compliance with Applicable Law. Each party will comply with all
applicable laws, rules, regulations and ordinances governing its business,
facilities and assets. On the Effective Date, each Party, at its own expense,
will have obtained all necessary approvals from governmental, regulatory or
other authorities with jurisdiction over its business, facilities and assets to
enter into and perform its obligations under this Agreement.
19.2 Import, Export, Exchange Controls.
19.2.1 Customer will be responsible for obtaining any
necessary government approvals, consents, licenses and/or permits to enable
Customer to (a) export any products or technical data required for TSG's
performance under this Agreement from the United States or any other country of
origin, (b) import such products and technical data into any other country, and
(c) pay TSG all amounts in U.S. Dollars as required by this Agreement. Upon
request, TSG will promptly provide Customer with any end-user certificates,
affidavits regarding re-export or other certificates and documents as are
reasonably available to TSG and required from TSG to obtain any such approvals,
consents, licenses and/or permits. The obligations of TSG under this Agreement
shall be conditioned on Customer's obtaining such approvals, consents, licenses
and/or permits. Each Party shall bear all costs, fees and expenses associated
with obtaining such approvals, consents, certificates, affidavits and other
items for which it is responsible under this Agreement, and upon request will
provide to the other evidence that any such items have been obtained and all
fees have been paid.
19.2.2 Notwithstanding anything in this Agreement to the
contrary, Customer shall not directly or indirectly export (or re-export) any
hardware, products, Software, technical data or products thereof covered under
this Agreement or permit transshipment of same (a) to any country or destination
for which the United States Government or a United States Government agency
requires an export license or other approval for export without first having
obtained such license or other approval, or (b) if otherwise contrary to United
States law. The term "technical data" shall include the TSG Services and any
technical assistance provided by TSG. This obligation shall survive the
expiration or termination of this Agreement.
19.3 Binding Nature and Assignment. This Agreement shall be binding on
Customer and TSG and their respective successors and assigns. Either Party shall
have the right to assign this Agreement to an Affiliate so long as the
contracting Party hereto remains primarily liable for the continued performance
of the terms and conditions of this Agreement. Otherwise, this Agreement may not
be assigned by Customer, without the prior written consent of TSG, which consent
shall not be unreasonably withheld. TSG shall have the right to subcontract any
of its obligations under this Agreement to a third party without any consent of
Customer being required.
19.4 Notices. Wherever under this Agreement one party is required or
permitted to give written notice to the other, such notice shall be deemed given
the third day after its mailing by one party, postage prepaid, to the other
party addressed as follows:
In the case of TSG:
President
The SABRE Group, Inc.
MD 4319
0000 Xxxx Xxxxxx Xxxx.
Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
With a copy to:
General Counsel
The SABRE Group, Inc.
MD 4204
0000 Xxxx Xxxxxx Xxxx.,
Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
In case of Customer:
Chief Financial Officer
PST Vans, Inc.
0000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Fax: (000) 000-0000
With a copy to:
Chief Executive Officer
PST Vans, Inc.
0000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Fax: (000) 000-0000
And another copy to:
Xxxx X. Xxxxxxxx
000 X. 000 X.
Xxxx Xxxx Xxxx, Xxxx 00000
Fax: (000) 000-0000
Any notice that shall be mailed pursuant to the foregoing shall also be
delivered by hand or transmitted by fax and shall be effective when received by
the addressee. Either Party may from time to time specify as its address or fax
number for purposes of this Agreement any other address or fax number upon
giving ten (10) days prior written notice thereof to the other Party.
19.5 Counterparts. This Agreement may be executed in several
counterparts, all of which taken together shall constitute one single agreement
between the Parties.
19.6 Headings. This Agreement may be executed in several counterparts,
all of which taken together shall constitute one single agreement between the
Parties.
19.7 Relationship of Parties. TSG shall be and act as an independent
contractor hereunder and no employee of either Party shall be deemed to be an
employee of the other for any purpose whatsoever. Each Party shall comply, at
its own expense, with the provisions of all applicable state and municipal
requirements and with all state and federal laws applicable to it as an employer
and otherwise.
19.8 No Solicitation. During the Term and for a period of two (2) years
thereafter, neither Party shall without the prior written consent of the other
Party, solicit for employment or otherwise retain the services of any current or
former employees of the other Party. Notwithstanding the above, if TSG
terminates the employment of a Transitioned Employee for any reason (other than
the Transitioned Employees voluntary resignation) during the period referenced
above, Customer may solicit or otherwise retain the services of such
Transitioned Employee.
19.9 Savings Clause. In the event any provision of this Agreement is
held to be invalid or unenforceable, such provision shall be deemed modified to
the extent necessary to become valid and enforceable.
19.10 Approvals. Where agreement, approval, acceptance, consent or
similar action by either Party is required by any provision of this Agreement,
such action shall not be unreasonably delayed or withheld.
19.11 Waiver. No delay or omission by either party hereto to exercise
any right or power hereunder shall impair such right or power or be construed to
be a waiver thereof. A waiver by either Party of any of the covenants to be
performed by the other or any breach of a covenant shall not be construed to be
a waiver of any succeeding breach or of any other covenant contained in this
Agreement.
19.12 Attorneys' Fees. If any legal action or other proceeding is
brought for the enforcement of an award under Section 16.2, the prevailing Party
shall be entitled to recover reasonable attorneys' fees and expenses and other
costs incurred in that action or proceeding, in addition to any other relief to
which it may be entitled.
19.13 Media Releases. All media releases, public announcements and
public disclosures by either Party relating to this Agreement or its subject
matter, including, without limitation, promotional or marketing material (but
not including any announcement intended solely for internal distribution by the
disclosing Party or any disclosure required by legal, accounting or regulatory
requirements beyond the reasonable control of the disclosing Party) shall be
coordinated with and approved by the other party prior to the release thereof.
Notwithstanding the above, TSG may list Customer's name as a customer of TSG in
marketing and promotional material without having to first obtain Customer's
prior written approval.
19.14 No Third Party Beneficiary. Except as otherwise provided herein,
nothing in this Agreement may be relied upon or shall benefit any party other
than Customer or TSG. Without limiting the foregoing, nothing in this Agreement,
either expressed or implied, will confer upon any employee of Customer or TSG
any right or remedy, including, without limitation, any right to employment or
continued employment for any specified period of time.
19.15 Entire Agreement. This Agreement, including any Schedules,
referred to herein and attached hereto, each of which is incorporated in this
Agreement for all purposes, constitutes the entire agreement between the parties
with respect to the subject matter of this Agreement and there are no
representations, understandings or agreements relating to this Agreement that
are not fully expressed herein. No amendment, modification, waiver or discharge
of this Agreement shall be valid unless in writing and signed by an authorized
representative of the party against which such amendment, modification, waiver
or discharge is sought to be enforced.
19.16 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas, regardless of conflict of
laws rules.
19.17 Year 2000. TSG will use its commercially reasonable efforts to
ensure that the TSG Software licensed hereunder by Customer, when used in
accordance with its associated Documentation, will be Year 2000 Compliant. TSG
will also endeavor to ensure that Third Party Software utilized in performing
the TSG Services is Year 2000 Compliant; provided however, TSG shall have no
liability, and expressly disclaims any warranties or conditions, in connection
with any Third Party Software, and the operation of any TSG Software with any
Third Party Software or equipment not supplied by TSG. In the event any of the
TSG Software is not Year 2000 Compliant on or before June 30, 1999, TSG shall
use commercially reasonable efforts to bring such non-conforming TSG Software
into Year 2000 Compliance at no additional cost to Customer as soon as
reasonably practicable. In the event TSG is unable to do so, TSG shall refund to
Customer all labor charges paid to TSG in connection with such TSG Software,
including any implementation or customization fees. The remedies provided in
this Section 19.17 shall be the sole and exclusive remedies available to
Customer, and the sole and exclusive obligation of TSG, for TSG's failure to
comply with this Section 19.17.
IN WITNESS WHEREOF, TSG and Customer have each caused this Agreement to be
signed and delivered by its duly authorized officer, all as of the Effective
Date.
THE SABRE GROUP, INC. PST VANS, INC.
By: By:
------------------------------ ------------------------------
Name: Name: Xxxxxxx X. Xxxxxx
------------------------------ ------------------------------
Date: Date:
------------------------------ ------------------------------
AGREEMENT FOR OUTSOURCING
SERVICES
BETWEEN
PST VANS, INC.
AND
THE SABRE GROUP, INC.
___________, 1998
TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS AND INTERPRETATION.........................1
1.1 Definitions................................................1
1.2 Exhibits and Schedules.....................................1
ARTICLE 2. TERM...................................................1
2.1 Term of Agreement..........................................1
2.2 Extensions of the Term.....................................1
ARTICLE 3 SERVICES AND EXCLUSIVITY
3.1 Services in General........................................2
3.2 New or Additional Service..................................2
3.3 TSG Rights to Manage TSG Resources.........................2
3.4 Exclusive Services.........................................3
3.5 Change Order Process.......................................3
3.6 Keep Technology Current....................................3
ARTICLE 4. OTHER TSG OBLIGATIONS..................................3
4.1 Transitioned Employees.....................................4
4.2 TSG Account Manager........................................4
4.3 Retention and Safeguarding of Customer Data................4
4.4 Migration..................................................5
ARTICLE 5. CUSTOMER RESPONSIBILITIES AND DUTIES...................5
5.1 Customer Employees.........................................5
5.2 Customer Facilities and Related Services...................5
5.3 Customer Owned Equipment...................................6
5.4 Customer Leased Equipment..................................7
5.5 Third Party Services.......................................7
5.6 Customer Contract Manager..................................8
5.7 Assistance.................................................8
5.8 Use of TSG Services........................................8
TABLE OF CONTENTS
(CONTINUED)
PAGE
5.9 Customer Licensed Software.................................9
5.10 Customer Owned Software....................................9
5.11 Failure to Obtain Required Consents........................9
5.12 Training of Customer Personnel............................10
5.13 Provision of Source Data..................................10
5.14 Inspection................................................10
5.15 Supplies..................................................10
5.16 Governmental Approvals....................................11
ARTICLE 6. SERVICE LEVELS........................................11
6.1 Establishment of SLA's....................................11
6.2 SLA Standard..............................................11
6.3 Monitoring................................................11
6.4 Costs of Implementing Monitoring..........................11
6.5 Correction of Deficiencies................................11
ARTICLE 7. FEES AND CHARGES......................................12
7.1 Fees and Charges..........................................12
7.2 Adjustment to Charges.....................................12
7.3 Termination Assistance....................................12
7.4 Out of Pocket Expenses and Third Party Charges............13
ARTICLE 8. INVOICES AND PAYMENT..................................13
8.1 Monthly Base Charge.......................................13
8.2 Other Charges.............................................13
8.3 Payment...................................................13
8.4 Interest on Overdue Amounts...............................13
8.5 No Deductions/Set-Off.....................................13
ARTICLE 9. TAXES.................................................14
9.1 Shipping, Taxes and Import Duties.........................14
ARTICLE 10. PROPRIETARY RIGHTS....................................14
TABLE OF CONTENTS
(CONTINUED)
PAGE
10.1 TSG Proprietary Information...............................14
10.2 Customer Data.............................................14
10.3 License...................................................15
10.4 Protection of Software Rights Against Third Parties.......15
ARTICLE 11. CONFIDENTIAL INFORMATION..............................15
11.1 Confidential Information..................................15
11.2 Residual Knowledge........................................16
ARTICLE 12. WARRANTIES............................................16
12.1 Mutual Warranties.........................................16
12.2 No Other Representations or Warranties....................17
ARTICLE 13. LIMITATIONS OF LIABILITY..............................17
13.1 Intended Allocation of Risks..............................17
13.2 Gross Negligence or Willful Misconduct....................17
13.3 Limitation on Damages.....................................18
13.4 Limitation on Amount of General Damages...................18
13.5 Tort Damages and Indemnifiable Losses.....................18
13.6 Time for Claims...........................................18
13.7 Warranties................................................18
13.8 Equitable Relief..........................................18
13.9 Exclusive Remedies........................................19
13.10 Noncumulative Remedies....................................19
13.11 Waiver of Remedies........................................19
ARTICLE 14. INDEMNIFICATION.......................................19
14.1 Representations and Warranties............................19
14.2 End Users.................................................20
14.3 Employment Related Matters................................20
14.4 Infringement..............................................20
14.5 Indemnification Procedures................................22
TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE 15. FORCE MAJEURE AND DISASTER RECOVERY...................22
15.1 Force Majeure.............................................22
15.2 Disaster Recovery.........................................22
ARTICLE 16. DISPUTE RESOLUTION....................................22
16.1 Performance Review........................................22
16.2 Dispute Resolution........................................23
16.3 Continued Performance.....................................23
ARTICLE 17. TERMINATION...........................................23
17.1 Termination for Breach....................................23
17.2 Other Termination Events..................................24
ARTICLE 18. TERMINATION ASSISTANCE SERVICES; SURVIVAL.............25
18.1 Termination Assistance Services...........................25
18.2 Termination Assistance Period.............................26
ARTICLE 19. MISCELLANEOUS.........................................26
19.1 Compliance with Applicable Law............................26
19.2 Import, Export, Exchange Controls.........................26
19.3 Binding Nature and Assignment.............................27
19.4 Notices...................................................27
19.5 Counterparts..............................................29
19.6 Headings..................................................29
19.7 Relationship of Parties...................................29
19.8 No Solicitation...........................................29
19.9 Savings Clause............................................29
19.10 Approvals.................................................29
19.11 Waiver....................................................29
19.12 Attorneys' Fees...........................................29
19.13 Media Releases............................................29
19.14 No Third Party Beneficiary................................30
TABLE OF CONTENTS
(CONTINUED)
PAGE
19.15 Entire Agreement..........................................30
19.16 Governing Law.............................................30
19.17 Year 2000.................................................30
SCHEDULE 1.1
DEFINITIONS AND INTERPRETATION
I. DEFINITIONS
In the Agreement, the following terms have the corresponding meanings:
"Affiliate:" A Person that directly or indirectly through one or more
intermediaries Controls, is Controlled by, or is under common Control with
another Person.
"Agreement:" The Agreement for Outsourcing Services entered into by the
Parties.
"Arbitration Rules:" The rules for international commercial arbitration
of JAMS, as amended or supplemented from time to time.
"Assigned Leases:" The leases for equipment identified on Schedule 5.4
identified as assigned to TSG.
"Changes:" As defined in Section 3.5 of the Agreement.
"Confidential Information:" The information described in Section 11.1.
"Consent:" Prior, express, and written consent (which may not be
unreasonably withheld, conditioned or delayed unless stated to be at a Party's
sole discretion).
"Consequential Damages:" Damages consisting of lost profits, lost
income, or lost savings or consequential, indirect, special, or incidental
damages (however described). "Consequential Damages" does not include any
punitive or exemplary damages.
"Control:" The ownership or effective voting control of fifty percent
(50%) or more of the outstanding equity interests of another Person.
"Customer's Contract Manager:" Xxxx Xxx, and any successor individual
so designated in writing by Customer from time to time.
"Customer Data:" The following data, whether provided or produced
before, on, or after the Effective Date:
(1) All data that is provided by or on behalf of Customer to
TSG in order for TSG to provide the TSG Services, including keyed input and
electronic capture of information by the TSG Services;
(2) All data that is provided by or on behalf of TSG to
Customer by means of the TSG Services, including reports and all other output of
the TSG Software; and
(3) All data that is produced by means of TSG Services as an
intermediate step in using or producing any of the Customer Data, including
databases and files containing Customer Data.
"Customer Data Center:" Customer's data processing center located at
0000 X. 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000.
"Customer Indemnitees:" Customer and its directors, officers,
employees, and agents and the heirs, executors, successors, and permitted
assigns of any of those Persons.
"Customer Leased Equipment:" The equipment identified on Schedule 5.4.
"Customer Licensed Software:" The Third Party Software and related
documentation identified on Schedule 5.9.
"Customer Owned Equipment:" The Equipment identified on Schedule 5.3.2
"Customer Owned Software:" The software and related documentation
identified on Schedule 5.10.
"Derivative Work:" A "derivative work" is based on one or more
preexisting works, such as a translation, , abridgment, condensation, or any
other form in which a work may be recast, transformed or adapted. A work
consisting of editorial revisions, annotations, elaboration, or other
modifications, which, as a whole, represent an original work of authorship, is a
derivative work.
"Dispute Resolution Process:" The process to be followed for the
resolution of disputes as set forth in Article 16.
"Documentation:" Instructions and related information for the use by
end users of TSG Software including users manuals, and instructions and related
information for the operation of software including run instructions, job
control instructions, balancing procedures, and input dependencies.
"Effective Date:" March 1, 1998.
"Egregious Breach:" A material breach of contract that constitutes an
intentional, unequivocal refusal to perform a material obligation of this
Agreement that frustrates one or more bases of the bargain between the Parties
2
to the extent that a (non-breaching) reasonable business person would not have
entered into the Agreement or would not continue performing under the Agreement.
"Employees:" The employees of Customer identified on Schedule 4.1.1.
"End User:" The end users of Customer, including but not limited to,
truck owners/operators.
"Expiration Date:" January 31, 2008.
"General Damages:" Actual, out of pocket damages, losses, claims,
obligations, demands, assessments, fines and penalties (whether civil or
criminal), liabilities, expenses and costs (including reasonable fees and
disbursements of legal counsel and accountants), and other direct damages
suffered or incurred by a Person. For the avoidance of doubt, "General Damages"
excludes punitive damages, exemplary damages and Consequential Damages of such
Person.
"Infringement:" See Section 14.4.1 of the Agreement.
"Indemnification Claim:" A claim or demand by a Party, on its behalf or
on behalf of one or more of its other Indemnitees, based on a Third Party Claim,
for indemnification under Article 14.
"Indemnifiable Losses:" Losses, claims, obligations, demands
assessments, fines and penalties (whether civil or criminal), liabilities,
expenses and costs (including reasonable fees and disbursements of legal counsel
and accountants), bodily and other personal injuries, damage to tangible
property, and other damages, of any kind or nature, actually suffered or
incurred by a Person. "Indemnifiable Losses" consists only of the actual damages
of a Person, and excludes any Consequential Damages and any punitive or
exemplary damages (however described) awarded against such Indemnitee in favor
of a Person making a Third-Party Claim against such Indemnitee.
"Indemnitees:" The Customer Indemnitees or the TSG Indemnitees, or
both.
"JAMS:" The Endispute/JAMS arbitration service.
"Migration:" The transfer of performance of certain of the TSG Services
from the Customer Data Center to the TSG Data Center under the Migration Plan.
"Migration Plan:" See Section 4.4 of the Agreement.
"Monthly Base Charge:" The fees and charges set forth in Schedule 7.1
for performance of the TSG Services.
3
"New or Additional Service:" One or more services that are not
described in Schedule 3.1, as such Schedule may be amended from time to time,
which relate to Customer's internal information technology process.
"New TSG Software:" Software developed by TSG at the written direction
and request of Customer, for which Customer pays to TSG all development costs
and expenses incurred by TSG in the development of such software and all
associated Documentation.
"Notice:" Prior, written notice or other communication complying with
Section 19.4 of this Agreement. Whenever a period of time is stated for Notice,
such period of time is the minimum period and nothing in this Agreement shall be
construed as prohibiting a greater period of time. ("Notify" has the correlative
meaning).
"Party:" Each of the signatories to the Agreement, and their successors
and assigns as permitted by the Agreement. ("Parties" has the correlative
meaning).
"Per Diem:" Daily charges to be paid by Customer to TSG for performance
of certain of the TSG Services.
"Person:" An individual, a corporation, partnership, trust,
association, or entity of any kind or nature; or a governmental authority.
"Required Consent:" An enforceable consent and authorization provided
by a third-party licensor, lessor, or party to a Third Party Service contract,
consenting to and authorizing TSG's use of the either the Customer Lease
Equipment, Customer Licensed Software, Customer Owned Software or Third Party
Service, as applicable.
"SLA:" Each of the written statements of performance levels mutually
agreed upon by the Parties for certain TSG Services.
"SLA Standard:" For a specific service, the acceptable level of
performance for such service specified in the applicable SLA.
"Special Forms:" The forms described in Section 5.15 of the Agreement.
"Term:" See Section 2.1 of the Agreement.
"Termination Assistance Services:" The services provided by TSG to
Customer, in addition to the TSG Services and in accordance with Article 18, to
enable Customer to obtain services to replace the TSG Services.
"Termination Liquidated Damages:" See Section 16.2 of the Agreement.
4
"Third-Party Claim:" A claim of liability asserted against a Party by a
Person other than the other Party or either Party's Affiliates.
"Third Party Services:" The third party service agreements specified on
Schedule 5.5.1 hereof.
"Third Party Software:" Any software and related documentation which
may be procured by TSG from time to time from third party vendors and used in
performing the TSG Services.
"Tort Damages:" Bodily or personal injury or death or damage to real or
tangible personal property.
"Transitioned Employees:" See Section 4.1.1 of the Agreement.
"Trucomm Software:" The enterprise operations/financial TSG Software to
be implemented by TSG in accordance with Schedule 3.1.
"TSG's Account Manager:" The individual so designated in writing by TSG
from time to time, who shall have the responsibilities set forth in Section 4.2.
"TSG Charges:" The fees and charges set forth in Schedule 7.1 to the
Agreement .
"TSG Data Center:" means the existing data center operated by TSG in
Dallas, Texas or such other location as TSG may establish a data center.
"TSG Indemnitees:" TSG and its directors, officers, employees, and
agents and the heirs, executors, successors, and permitted assigns of any of
those Persons.
"TSG Services:" Services described in Schedule 3.1 of the Agreement, as
such Schedule may be revised from time to time by mutual written agreement of
the Parties.
"TSG Software:" The software that is developed and licensed to Customer
under the terms of this Agreement and that (i) is identified by TSG internally
as being owned solely or jointly by TSG or licensed by TSG, (ii) is used or
useful in the trucking carrier business, and (iii) can be freely licensed by TSG
to third parties for use in the trucking carrier business without payment of a
royalty or other fee to a third party.
"Year 2000 Compliant:" Year 2000 Compliant means computer hardware,
software and microcode that has user interfaces, date data fields, processing
logic, and outputs that correctly recognize, process and otherwise support date
data with respect to dates occurring after January 1, 2000, as determined by
TSG's certification process.
II. INTERPRETIVE MATTERS
5
The Agreement is the result of the Parties' negotiations, and no
provision of this Agreement shall be construed for or against either Party
because of the authorship of that provision. In the interpretation of the
Agreement, except where the context otherwise requires:
1. "including" or "include" does not denote or apply any
limitation;
2. "or" has the inclusive meaning "and/or;"
3. "and/or" means "or" and is used for emphasis only;
4. "$" refers to United States dollars;
5. the singular includes the plural, and vice versa, and each
gender includes each of the others;
6. captions or headings are only for reference and are not to be
considered in interpreting the Agreement;
7. "Article," "Section," and "Subsection" refer to an Article,
Section and Subsection, respectively, of the Agreement, unless
otherwise stated in the Agreement;
8. if an ambiguity arises in a Subsection's Section's, or
Article's cross-reference to another Section or Article, the
cross-referenced heading controls over the cross-referenced
Section or Article number.
6
SCHEDULE 3.1
TSG SERVICES
SCHEDULE 4.1.1
EMPLOYEES
[TO BE DETERMINED]
SCHEDULE 5.4
CUSTOMER LEASED EQUIPMENT
SCHEDULE 5.5.1
THIRD PARTY SERVICES
SCHEDULE 5.9
CUSTOMER LICENSED SOFTWARE
SCHEDULE 5.10
CUSTOMER OWNED SOFTWARE
SCHEDULE 6.1
SERVICE LEVEL AGREEMENT
SCHEDULE 7.1
FEES AND CHARGES
