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EXHIBIT 10.8
OMNITRACS(R) CONTRACT
This Contract (the "Agreement") is made and entered into as of this 8th day
of May , 1995, (the "Effective Date") by and between the company listed
hereinbelow ("Customer") and XXXXXXXX Xxxxxxxxxxxx ("QUALCOMM"). QUALCOMM will
provide equipment ("Equipment") and services for a two-way Ku-band,
satellite-based, mobile messaging and position location reporting service (the
"OmniTRACS Service"). The Equipment and the OmniTRACS Service are collectively
referred to herein as the "OmniTRACS System." Customer agrees to be bound by
the quantities and prices of items ordered below, as well as the terms and
conditions of this Agreement.
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CUSTOMER INFORMATION
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Customer: TIMELY TRANSPORTATION, INC. Phone: (000) 000-0000
Fax: (000) 000-0000
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Invoice Address: Shipping Address:
000 Xxxxxxxx Xxxx., XX, Xxx. 000 Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Pres. & CEO Attn:
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EQUIPMENT
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Item Description Qty. Price Extended Amt.
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01 MCT (Mobile Communications Terminal) 100 $390,000.00
$3,900/unit
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02 Outdoor Unit Mounting Bracket 100 $150 /mount NC
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03 Remote Buzzer 100 $30 /each $3,000.00
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04 Pager (transmitter and receiver) 0 $150 /each $0.00
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05 Remote Message Waiting Light 0 $10 /each $0.00
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06 QC-4T40 Mobile Printer 0 $695 /each $0.00
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MCT MAINTENANCE
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Item Type Description Rate
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07 Extended Provides MCT Warranty maintenance after expiration of $15/mo. per MCT
Maintenance Warranty Period.
Service
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08 Out-of-Extended For MCT maintenance after expiration of the Warranty Price per failure: Communications Unit,
Maintenance Period if Customer does not elect Extended $750; Outdoor Unit, $600; Display Unit,
Service Maintenance. $200
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09 Customer Damage For MCT maintenance due to accidental damage or Price per failure is applicable Spares
Maintenance repairs that would not be covered by the MCT Price or: Communications Unit, $750;
Service Warranty. Outdoor Unit, $600; Display Unit, $200.
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SOFTWARE AND MAINTENANCE
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Item Description Qty. Price Extended Amt.
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10 QTRACS/PC Software License 0 $4,500 /copy $0.00
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11 COMPAQ 486 PC System (CPPC) 0 $3,500 /CPPC $0.00
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12 Annual Extended Software Maintenance 15% of the then list license fee
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OPTIONAL SERVICES
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Item Description Qty. Price Extended Amt.
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13 MCT Installation (Does not include travel See Att. $ 150 /MCT See Att. 3
expenses) 3
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14 Additional Training:
Drivers/Dispatchers (Does not include travel 0 $ 500 /session
Installers expenses) 0 $1,000 /session $0.00
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15 "Panic Button" or DTTS Service 0 $ 30 /Panic Button
(Does not include installation or 37 Pin Accessory Cable) $ 10 /message plus $0.00
Regular Message Rate
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16 37 Pin Accessory Cable (for Panic Button or DTTS Service, VIS
and other OmniTRACS optional services or systems) 0 $ 35 /each $0.00
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17 Vehicle Information Systems The SensorTRACS(R), JTRACS(TM) and/or TrailerTRACS(R) Systems may be
purchased in accordance with separate attachments or as set forth
("VIS") in Attachment 3, Special Provisions.
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MESSAGE SERVICES
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Item Type Description Rate
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18 Message Service CUSTOMER ELECTS BY INITIALING: ( /s/ GW ) Base Connection
Election ( __________) Base Message Service
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19.a. Base Connection Includes 1 automatic position poll per hour. $35/mo. per MCT
(partial mo. to be prorated).
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19.b. Base Message Base Connection (including 1 automatic position $50.00/mo. per MCT
Service poll per hour) plus Base Message Use. Base Message (partial mo. to be prorated).
Use is defined as Customer not having greater than
the following per MCT per month in either messages (Special Requested Position Polls,
or characters: Emergency Messages, Priority Messages,
Group Messages, Change in MCT Group
Message per month per MCT: 180 Membership, Macro Creation or Updates,
Characters per month per MCT: 18,000 Panic Button or DTTS Messages, and messages
Automatic Position Polls: 720 (1/hour per MCT) from or to printers, facsimile machines or
other future message types which require
In the event regular messages or characters are special handling are not included in Base
greater than the Base Message Use for any MCT in Message Use and will be invoiced at the
any month, the additional messages or characters, rates set forth in this Schedule (pages
as applicable, will be charged at the Regular 1-2) or future rates to be determined)
Message Rate.
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20 Regular Message Message is considered sent once, even though it may $0.05 per message plus $0.002 per character
Rate need to be transmitted on multiple occasions until transmitted.
acknowledged.
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21 Special Requested Position Polls requested in addition to the $0.05 each
Position Polls automatic position polls included with Base
Connection
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22 Emergency and FROM DISPATCH TO DRIVER: When "E" for $2.00 plus Regular Message Rate.
Priority Message "Emergency" is designated, places a message in the
Rates queue on a FIFO basis among all Emergency Messages.
FROM DRIVER TO DISPATCH: When "P" for $2.00 plus Regular Message Rate.
"Priority" is designated, places a message in the
queue on a FIFO basis among all Priority Messages.
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23 Group Message Fleet-wide messages are repeated a minimum of five Sliding Scale Rate based on number of
Rate times. vehicles:
Receipt is not acknowledged.
Rate Per Vehicle
# Vehicles Per Message
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1-25 Reg. Msg. Rate
26-50 0.15
51-100 $0.07
101-1,000 $0.03
1,001 & up $0.02
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24 Change in MCT Addition or deletion of an MCT from a defined $0.05 per MCT per change.
Group Membership group.
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25 Macro Creation or Initial creation of macros and changes or updates $10 per message plus applicable Group
Updates to macro definitions. Message Rate.
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ATTACHMENTS
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26 MCT Spares Price List See Attachment 1 which is incorporated herein in full.
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27 Delivery Schedule See Attachment 2 which is incorporated herein in full.
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28 Special Provisions See Attachment 3 which is incorporated herein in full.
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OmniTRACS(R) TERMS AND CONDITIONS
1. OmniTRACS EQUIPMENT.
1.1 Delivery; Purchase of Additional Equipment. The OmniTRACS Mobile
Messaging Communications Terminals ("MCTs") and accessory equipment ordered
under this Agreement (collectively the "Equipment"), as set forth on Page 1,
shall be delivered in accordance with Attachment 2, Delivery Schedule. All
Equipment is shipped FOB QUALCOMM's San Diego facility. Risk of loss in
transit and the cost of any cargo insurance shall be borne by Customer. During
the Term, provided Customer is in compliance with the terms and conditions set
forth in this Agreement, Customer may order the additional Equipment described
on Page 1, subject to the pricing and other terms set forth therein, upon
delivery to QUALCOMM of Customer's valid purchase order specifying the desired
product and quantity. QUALCOMM will confirm such order with Customer and the
parties shall schedule a mutually agreed upon delivery date for such order in
accordance with the terms and conditions of this Agreement, including but not
limited to those set forth in the Delivery Schedule.
1.2 Acceptance and Title. Inspection and acceptance of the Equipment
shall occur within fifteen (15) days after the date of shipment. Customer
shall receive title to all deliverable Equipment (excluding the firmware
resident in the MCTs described in Section 1.4 below), only upon QUALCOMM's
receipt of complete and full payment. QUALCOMM shall be entitled to affix
tags, decals. or plates to the Equipment indicating QUALCOMM as the
manufacturer of the Equipment and displaying any QUALCOMM trademarks.
1.3 Installation of MCTS. The MCT installation price described on Page 1
does not include the price of the Outdoor Unit Mounting Bracket and is
conditioned upon installation occurring at the rate of both (i) a minimum of
five (5) vehicles per day per two (2) man crew (one bay) per facility. and (ii)
a minimum of twenty-five (25) vehicles per two (2) man crew (one bay) per
facility during a five (5) consecutive day period. In the event Customer does
not provide the minimum number of vehicles required in this Section, Customer
shall pay QUALCOMM, in addition to the installation price per MCT, an amount
equal to the sum of $125.00 multiplied by the number of vehicles below the
minimum vehicle availability requirement set forth herein. No MCTs will be
installed by QUALCOMM using Outdoor Unit Mounting Brackets which are not
provided by QUALCOMM or which do not meet the specifications set forth in the
bracket specification manuals published from time to time by QUALCOMM. Any
other Outdoor Unit Mounting Bracket proposed for use by Customer shall be
approved in advance by QUALCOMM's mechanical engineering staff as meeting or
exceeding minimum design standards. subject to the payment by Customer of any
costs incurred by QUALCOMM in performing the analysis necessary for such
approval.
QUALCOMM warrants that for thirty (30) days from the date on which the Service
(as defined in Section 3.1 below) is first initiated for any MCT installed by
QUALCOMM, such MCT will provide the Service. In the event such MCT fails to
provide the Service during such thirty (30) day period and QUALCOMM determines
that such failure is due to improper installation. then as Customer's sole and
exclusive remedy, QUALCOMM will provide free of charge the necessary parts and
labor to correct the installation.
1.4 Firmware. Customer acknowledges that software is resident in the MCTs
and in certain other accessory Equipment which may be provided to Customer
hereunder ("Firmware"), and that access to and use of which shall be governed
by the general provisions relating to Software set forth in Sections 2.1, 2.3,
and 2.4 below.
1.5 Equipment Warranty. QUALCOMM warrants that upon shipment and
continuing for a period of twelve (12) months thereafter (the "Warranty
Period"), the major MCT components (which are the Outdoor Unit, Communication
Unit and Display Unit), shall be free from material defects in materials or
workmanship and capable of providing the Service ("Good Working Order")
(collectively (the "Warranty"). Customer shall remove and return at its
expense and risk of loss (unless otherwise directed by QUALCOMM) the failed MCT
or, preferably, the component thereof which is not in Good Working Order, to
QUALCOMM. and QUALCOMM shall perform maintenance in accordance with the
Maintenance Procedures described below and return a replacement MCT unit (or
component) free of charge to Customer during the Warranty Period. QUALCOMM's
warranty obligation is limited to repair or replacement of defective or
non-performing MCT components as required to restore the item to Good Working
Order. The Warranty is provided for the benefit of Customer only, and is not
transferable by Customer without the express consent, in advance, by QUALCOMM.
All other goods, including but not limited to goods not manufactured by
QUALCOMM (such as cables and mounting brackets) are expressly excluded from the
Warranty. Any such goods not manufactured by QUALCOMM shall be covered by the
applicable manufacturer's warranty, if any, and QUALCOMM's sole obligation in
connection therewith shall be to use reasonable efforts to assist Customer in
obtaining such warranty service, at Customer's expense.
1.6 Warranty Exclusions. QUALCOMM excludes from the Warranty and has no
obligation to repair or replace any MCT which is not in Good Working Order due
to: (i) use of the MCT with software, cable connections, or mounting brackets,
other than those furnished by QUALCOMM or approved by QUALCOMM, which approval
shall not be unreasonably withheld; (ii) damage to antennas, radomes (including
painting) or other equipment resulting from physical impact or other abuse
following delivery FOB QUALCOMM's San Diego facility; (iii) improper handling
of any component of the OmniTRACS System, including Software, (iv) alteration,
modification or repair other than pursuant to QUALCOMM's advance written
instructions or by QUALCOMM; or (v) normal wear and tear. Customer further
acknowledges that the Outdoor Unit and the Communication Unit of the MCT have
been sealed and that if the seal is broken on any of these units the Warranty
is voided for that MCT. In the event that any returned MCT is not in Good
Working Order due to any of the provisions listed in the preceding two (2)
sentences, the Warranty shall be
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considered void and all such maintenance action will be billed at either the
Out-of-Extended Maintenance Rates set forth on Page 1 or the then current spare
parts price, as currently set forth in Attachment 1, at QUALCOMM's sole
discretion.
1.7 Extended Maintenance and Out-Of-Extended Maintenance Service. After
the expiration of the Warranty Period, Customer may elect to obtain QUALCOMM's
Extended Maintenance Service on a fleetwide basis only, by paying for Extended
Maintenance Service with the first invoice for monthly Extended Maintenance
Service fees at the rates set forth on Page 1. QUALCOMM will begin invoicing
Customer for Extended Maintenance Service one (1) month prior to the expiration
of the Warranty Period for the first MCT or lot of MCTs shipped to Customer.
Under the Extended Maintenance Service, QUALCOMM shall provide continued
Warranty service for Customer's MCTs during the remainder of the Term at the
Extended Maintenance Rate. QUALCOMM reserves the absolute right to terminate
the Extended Maintenance Service without prior notification to Customer in the
event that (i) Customer has not paid the applicable charges in accordance with
the provisions of this Agreement or (ii) the Extended Maintenance Service is
not maintained without interruption, for any reason, for all initiated MCTs in
Customer's possession for which the Warranty Period has expired. QUALCOMM also
reserves the right to refuse Extended Maintenance Service after expiration of
the Term, to condition the availability thereof upon the upgrade of MCTs and
other Equipment, at Customer's expense and/or to increase the prices for
Extended Maintenance Service. In the event that Customer has not elected the
Extended Maintenance Service, Customer will be billed on a per failure basis at
the Out-of-Extended Maintenance Rates set forth on Page 1 ("Out-of-Extended
Maintenance Service"). The Out-of-Extended Maintenance Rates are valid only
for repairs which would otherwise qualify under the Warranty. QUALCOMM's
obligation to provide Extended Maintenance Services or Out-of-Extended
Maintenance Services to Customer is contingent upon Customer removing and
returning at its expense and risk of loss the MCT or component thereof
requiring such service to QUALCOMM. QUALCOMM shall not be obligated to perform
any Extended Maintenance Service or Out- of-Extended Maintenance Service if the
MCT is not in Good Working Order as a result of Customer's improper or
negligent use of the Equipment which causes physical damage, or which otherwise
would be excluded from the Warranty, and Customer shall pay QUALCOMM for such
service an additional amount equal to either the Out-of-Extended Maintenance
Rates or the then current spare parts price as currently set forth in
Attachment 1, at QUALCOMM's sole discretion.
1.8 Maintenance Procedures. All Warranty repairs, Extended Maintenance
Service and Out-of-Extended Maintenance Service by QUALCOMM will be
accomplished at QUALCOMM's facility or other QUALCOMM designated site in
accordance with QUALCOMM's then current OmniTRACS Advance Replace RMA
Procedure, as updated from time to time at QUALCOMM's discretion. Customer
shall be responsible for all costs associated with the removal of the MCTs or
components thereof, including all shipping costs to QUALCOMM, all risk of loss
in transit, and the installation of the replacement MCTs or components.
QUALCOMM shall advance replace MCTs or components after proper notification by
Customer that the MCT or component thereof is not in Good Working Order.
Proper notification (orally or in writing) will be deemed to have occurred when
Customer has contacted QUALCOMM's Customer Service Center and been assigned a
Return Material Authorization Number ("RMA") for the MCT or component thereof
deemed not to be in Good Working Order. QUALCOMM shall use its best efforts to
advance replace any defective or non-performing item within seventy-two (72)
hours after receiving proper notification, provided such notification is
received at QUALCOMM during the normal work week (Monday through Friday and
prior to 2:00 p.m. Pacific Time), excluding national holidays. For
notification received outside the normal work week or during a national
holiday, QUALCOMM shall use its best efforts to repair or replace any defective
or non-performing item within a target of one hundred and twenty (120) hours.
The replacement component or MCT, which may be previously used or repaired
items, will be shipped to the Customer's operations center or other Customer
designated facility and receipt of such at the Customer operations center or
other Customer designated facility constitutes replacement, at which time title
to such replacement component or MCT shall vest in Customer if and to the same
extent that title to the replaced component or MCT was vested in Customer.
Replacement components or MCTs shall be subject to the greater of the remaining
Warranty term applicable to the replaced component or MCT or a sixty (60) day
service warranty beginning as of the date such replacement item is shipped.
Title to the defective or non-performing items shall automatically be reassigned
to QUALCOMM if the exchanged item is owned by Customer. The assigned RMA shall
be clearly visible on each shipping form and associated shipping carton. Failure
to have this RMA will result in the immediate return of all items to Customer.
The defective or non-performing items shall be returned to QUALCOMM within
fourteen (14) days after assignment to Customer of the RMA. Failure to return
such item during this period will result in Customer being invoiced the higher
of the then current QUALCOMM price or the applicable spare parts price as
currently set forth in Attachment 1. In addition, Customer will be notified that
QUALCOMM will discontinue its "advance replace" RMA policy for Customer and
future RMAs will be considered "no advance replace;" that is, replacement
components for future RMAs will not be shipped until the failed components have
been returned. At the time that all past due components are received by QUALCOMM
or paid for in full in accordance herewith, QUALCOMM will resume advance
replacement of failed MCTs and components.
1.9 Upgrade Warranty. In the event any MCT or component is upgraded for
purposes of refurbishment or to add a feature, such upgrade will be completed
in accordance with QUALCOMM's Advance Replace RMA Procedure, unless otherwise
agreed by the parties. Any such upgraded MCT or component shall be subject to
the remaining Warranty term applicable to the upgraded MCT or component, or if
such item was not covered by Warranty, such MCT or component shall be covered
by a sixty (60) day upgrade warranty beginning as of the date such upgrade is
shipped.
1.10 No Right to Distribute or Remarket. No right is granted to Customer
hereunder to distribute or remarket Equipment, and QUALCOMM reserves the right
to refuse to provide the Service to
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any person obtaining the Equipment from Customer without QUALCOMM's prior
written consent.
2. OmniTRACS SOFTWARE.
2.1 Software License. The term "Software" as used herein, includes all
software licensed to Customer by QUALCOMM pursuant to the provisions of this
Agreement, including Firmware as described in Section 1.4, and any
documentation delivered in connection with such software. QUALCOMM grants to
Customer a non-exclusive, non-transferable, revocable license to use the
Software solely in conjunction with the OmniTRACS System, and (i) with respect
to Software other than the Firmware, at one (1) location (the "Site") and (ii)
on one (1) Customer controlled or owned central processing unit and operating
system software. both meeting QUALCOMM's specifications for use with the
Software (the "Authorized Equipment"). QUALCOMM further grants to Customer the
right to transfer its license to use the Firmware during the useful life of the
Equipment, in conjunction with the transfer of its ownership subject to the
limitations of Section 1.10, provided that prior to the transfer of the
Equipment, the transferee shall agree in writing to treat the Firmware as
confidential proprietary information of QUALCOMM, and to observe all copyright
and trademark rights of QUALCOMM. Customer further acknowledges that QUALCOMM
has no obligation to provide the Service to such transferee of the Equipment
nor any other person or entity other than to Customer pursuant to the terms and
conditions of this Agreement. and that QUALCOMM may condition its agreement to
provide the Service to any transferee upon QUALCOMM's approval of the
creditworthiness of such transferee, the payment by such transferee of a
relicensing fee and/or the upgrade of Equipment at such transferee's expense.
2.2 Delivery, Acceptance and Installation. QUALCOMM will ship Software
ordered hereunder FOB QUALCOMM's San Diego facility. For Software installed by
QUALCOMM. acceptance shall occur upon installation; in all other cases,
acceptance of the Software shall occur within fifteen (15) days after shipment.
Unless otherwise expressly agreed, Customer shall be responsible for installing
the Software into its Authorized Equipment at the Site. Installation of
Software by QUALCOMM will be on a time and materials basis at QUALCOMM's then
current rates plus reimbursement for travel and per diem expenses.
2.3 Unauthorized Use of the Software. Customer shall not (i) alter,
modify or adapt the Software, including but not limited to translating,
decompiling, disassembling, reverse engineering or creating derivative works;
(ii) copy the Software (except that Customer may make up to (3) copies of the
Software other than the Firmware for inactive back-up and archival purposes);
(iii) sublicense. assign or otherwise transfer the Software in whole or in part
(except as otherwise provided with respect to the Firmware in Section 2.1);
(iv) use the Software on other than the Authorized Equipment at the Site, or
(v) use the Software except as specifically contemplated by and set forth in
this Agreement. Use of the Software by Customer for purposes other than the
OmniTRACS System is a material breach of this Agreement and will be subject to
the prompt application of the termination provisions set forth in Section 6.2.
2.4 Proprietary Information. Customer expressly acknowledges that the
entire right and title to the Software. including but not limited to all
copyright, trade secret and other intellectual or proprietary rights to the
Software, shall remain with QUALCOMM, and QUALCOMM has the exclusive right (i)
to protect the Software by copyright registration or otherwise and (ii) to
reproduce, publish, display, sell and distribute such Software to anyone.
Customer shall not remove any copyright notices or any confidential or
proprietary legends from the Software. Customer also hereby acknowledges and
agrees that the Software constitutes a valuable proprietary product and trade
secret of QUALCOMM embodying substantial creative efforts and confidential
information, ideas and expressions. Accordingly, Customer shall observe
complete confidentiality with respect to the Software, and shall not disclose
all or any portion of the Software to any third party or entity, except as such
disclosure may be necessary or appropriate to Customer's employees in the
course of their employment. Customer shall advise any employees of Customer
receiving access to the Software of the confidential and proprietary nature of
the Software and obtain from each of such employees his or her agreement to
abide by the obligations of Customer set forth in Sections 2.3 and 2.4.
2.5 Software Warranty. The Software has been developed to permit Customer
to use the MCTs and access QUALCOMM's Network Management Facility computer(s)
and to perform other related functions. QUALCOMM warrants that for a period of
twelve (12) months (the "Software Warranty Period"), each Software product
shall perform substantially in accordance with the specifications contained in
the applicable Software manuals (the "Software Warranty"). For Software
installed by QUALCOMM, the Software Warranty Period shall commence upon
installation; in all other cases the Software Warranty Period shall commence
upon shipment. QUALCOMM will use reasonable efforts to correct errors, if any,
which are discovered within the Warranty Period which either are present at the
time of delivery of Software or are caused by warranty corrections performed
by QUALCOMM and which inhibit the Software's performance such that it does not
perform substantially in accordance with the specifications contained in the
applicable Software manual. The preceding remedies am available to Customer
only if (i) QUALCOMM is notified, in writing, by Customer of any defect within
fifteen (15) days after Customer's discovery of the defect, (ii) Customer's
notification shall contain a detailed description, in writing, of any
malfunction of the Software, including the frequency of the malfunction and the
conditions surrounding the malfunction, (iii) QUALCOMM from its examination can
repeat the error or malfunction to disclose that such defect actually exists,
and (iv) the Software has not been subjected to misapplication, misuse, damage,
negligence or accident. Any use of or modifications made to software not
supplied by QUALCOMM but which interface with the Software and which impair the
functionality of the Software shall be undertaken at Customer's sole risk.
Customer acknowledges that QUALCOMM's ability to provide the Software Warranty
requires Customer's full cooperation, including sample and/or diagnostic output
and reasonable access to the Authorized Equipment and may require down-time of
the Authorized Equipment. QUALCOMM's Software Warranty obligation is limited
to the above remedy and QUALCOMM makes no warranty that operation of the
Software will be uninterrupted or error free or that any errors discovered can
be corrected.
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2.6 Software Maintenance. During the Software Warranty
Period, Customer will also receive maintenance for the Software ("Software
Maintenance") at no additional cost consisting of: (i) upgrades and
enhancements when such upgrades and enhancements are developed by QUALCOMM and
made generally available without cost to other licensees of the Software, (ii)
Soft telephone support to assist Customer's designated technical
representative(s) in answering routine questions with respect to the use of the
Software, (iii) maintenance for deviations between the Software and the
documentation furnished by QUALCOMM, as determined by QUALCOMM, and (iv)
applicable Software documentation updates. Any upgrades or enhancements
developed or published by QUALCOMM which are not made generally available at no
additional cost to other licensees will be offered to Customer at QUALCOMM's
then current published rates. Determination of whether an upgrade or
enhancement will be made available at no additional cost or will be made
available only for an additional cost is the sole and exclusive right of
QUALCOMM. Upgrades and enhancements will be shipped to Customer in a mutually
acceptable media. QUALCOMM will install upgrades and enhancements only upon
request, with installation on a time and materials basis at QUALCOMM's then
current rates plus reimbursement for travel and per diem expenses. If QUALCOMM
fails to fulfill its Software Maintenance obligations as set forth herein,
Customer's sole and exclusive remedy is the right to terminate Software
Maintenance immediately.
2.7 Extended Software Maintenance. After the expiration of the Software
Warranty for the Software, Customer may obtain continued Software Maintenance
("Extended Software Maintenance") by paying QUALCOMM's then current annual
Extended Software Maintenance fee for each Software product licensed under this
Agreement calculated at fifteen (15%) of the then list price for the licensed
Software product (the "Annual Maintenance Fee"). After the expiration of the
Software Warranty Period, Customer may elect to obtain QUALCOMM's Extended
Software Maintenance by paying the first Annual Maintenance Fee. QUALCOMM will
invoice Customer for the first Annual Maintenance Fee one (1) month prior to
expiration of the Software Warranty Period. Thereafter, the Annual Maintenance
Fee shall be due and payable annually within thirty (30) days after the
anniversary of the expiration of the Software Warranty Period. QUALCOMM
reserves the absolute right to terminate the Extended Software Maintenance
without prior notification to Customer in the event that Customer has not paid
the applicable charges in accordance with this Section. QUALCOMM's Extended
Software Maintenance shall be limited to support to the current version and the
immediately previously released version of the Software. If QUALCOMM fails to
fulfill its Extended Software Maintenance obligations as set forth herein, the
customer's sole and exclusive remedy is the right to terminate the Extended
Software Maintenance immediately for the Software and QUALCOMM shall refund to
Customer any prepaid fees, prorated based upon a thirty (30) day month,
beginning from the effective date of such termination.
2.8 Support Modem and Remote Access. QUALCOMM may as a condition to
providing Software Maintenance and Extended Software Maintenance hereunder,
require Customer to dedicate a communication port off of Customer's computer and
supply a dedicated phone line for use with a modem supplied by Customer meeting
QUALCOMM's specifications, for QUALCOMM's remote access use in support of the
Software. Customer will provide QUALCOMM with a user account and password to
access the software on a 24 hour basis as an on-line end-user (with file
transfer capability), within a reasonable time after Customer has made a request
for support or as mutually agreed upon for installation of an upgrade or
enhancement. QUALCOMM will only access the account for purposes of (i) support
and maintenance of the Software, (ii) installations of upgrades, enhancements
and new version releases of the Software on mutually agreed upon schedules. and
(iii) or integration or other support agreed on between QUALCOMM and Customer.
2.9 Other Support. Except as provided in this Section 2, no software
maintenance, support or other services are provided under this Agreement. If
Customer requests and QUALCOMM elects to make corrections for difficulties or
defects traceable to Customer's errors or those of a third party, or to provide
support for system changes, upgrades, modifications, merges or improvements,
interfaces, operating systems, hardware configuration, data management, or
other system administration issues, Customer shall pay for QUALCOMM's services
on a time and materials basis at QUALCOMM's then current rates plus
reimbursement for travel and per diem expenses.
2.10 Return of the Software. Upon any termination or expiration of this
Agreement, Customer shall, within ten (10) days of such termination or
expiration, return to QUALCOMM at Customer's expense all copies of the Software
and supporting documentation or, at QUALCOMM's discretion, provide written
certification that Customer has destroyed all copies of the Software including
any documentation.
3. OmniTRACS SERVICE.
3.1 OmniTRACS Service. The OmniTRACS Service (the "Service") consists of
a two-way Ku-band, satellite-based, mobile messaging and position location
reporting service using various components of the OmniTRACS System which is
provided to Customer hereunder for installation and use only on Customer's
vehicles or owner-operators' vehicles contracting with Customer.
3.2 Customer Service. Customer shall immediately notify QUALCOMM of any
interruption in the Service. The QUALCOMM Customer Service Center at (800)
541-7490 shall be contacted whenever there is a Service operation or Equipment
failure, Software problem, or other service/information is required.
3.3 Activation of the Service; Price Increases. The Service for each MCT
is considered to be activated in Customer's message service account upon the
earlier of the date on which Customer requests QUALCOMM to activate the Service
for the MCT or thirty (30) days after date of shipment of the MCT. At time
of activation, Services and the associated service rates and/or fees shall
commence for all activated MCTs. The message service rates set forth on Page 1
are subject to annual increases based upon increases in the Bureau of Labor
Statistics Consumer Price Index, Subgroup "Urban Consumers (Revised)" as
published by the U.S. Department of Labor
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for the Los Angeles-Long Beach-Anaheim Xxxxxxxxxxxx Xxxx (0000 = 100 Base).
Increases shall be calculated no more than once per calendar year and shall be
limited to the difference between the index rate at the beginning of the
calendar year and the index rate at the end of the calendar year.
3.4 International Use. QUALCOMM has not yet received permission to
transmit or operate the Service in Mexico, and therefore, Customer is not
authorized to use the Service in Mexico. QUALCOMM has received interim
approval which permits QUALCOMM's customers to operate the Service in Canada
while their trucks are temporarily located in Canada (hereinafter "Interim
Approval"). Customer acknowledges that the Canadian Government has the
authority to rescind the Interim Approval. In the event the Canadian
Government rescinds the Interim Approval, QUALCOMM shall immediately notify
Customer of such rescission and Customer shall cease operating the Service in
Canada until Customer is notified by QUALCOMM that approval has been
reinstituted.
3.5 Unauthorized Use of the Service. Customer shall not use, or attempt
to use, the Equipment or Services for any Unauthorized Purpose or in such a
manner as to interfere with use by other customers of the OmniTRACS System.
"Unauthorized Purpose" as used herein includes: (i) obtaining access to or use
of Services with intent to avoid payment, in whole or in part, of charges due
under this Agreement. (ii) access to, use of, alteration of, or destruction of
the data files, programs, procedures, or information of Customer or any other
QUALCOMM customer, (iii) use of the Equipment or Services with the intent to
reverse engineer or clone the OmniTRACS System, (iv) use of the Software in
such a manner to void the Software license provided in Section 2 or (v) use of
the Services or Software furnished pursuant to this Agreement for any purpose
or in any manner which, directly or indirectly. violates the law or aids any
unlawful act or undertaking. QUALCOMM may, without notice to Customer, and
without liability to QUALCOMM, discontinue the Service in response to a request
from a government agency, including but not limited to the FCC. For other
QUALCOMM actions to discontinue Service to prevent use for an Unauthorized
Purpose, QUALCOMM will use best efforts to provide Customer twelve (12) hours
notification prior to discontinuing the Service. QUALCOMM shall restore the
Service as soon as the Service can be provided without undue risk of use for an
Unauthorized Purpose. Customer shall not be credited message service charges
for Service interruptions resulting from QUALCOMM's actions under this Section.
3.6 Dangerous Operation. Customer acknowledges that the use of MCTs while
the vehicle is in motion is DANGEROUS. Accordingly. Customer shall instruct
all of its driven NOT TO USE THE SERVICE THE VEHICLE IS IN MOTION. If, and
only if, the vehicle is being driven by a team, the non-driver may operate the
MCT while the vehicle is in motion, provided the non-driver ensures such
operation does not distract the driver.
3.7 Warranty. QUALCOMM warrants that it shall maintain the Service so as
to provide Service Availability at least 98% per month for all hours, except
from 10 p.m. to 3 am., Pacific Time, when QUALCOMM generally performs
maintenance actions. As used herein, "Service Availability" shall mean
provision of the Service free from interruption or break and shall include, in
addition to the ability of QUALCOMM's Network Management Facility to receive
Customer's outbound messages, the ability to transmit messages from the NMF to
the involved satellite and then to a ground terminal, and the ability to
receive at the Network Management Facility an acknowledgment originating at the
ground terminal that the message has been received. This Service Availability
is predicated upon normal usage for MCTs in service in the U.S. and does not
include interruption of Service as a result of force majeure events. For
purposes of this paragraph, "force majeure events" shall include, without
limitation, satellite transponder failure, acts of God, natural disasters,
strikes, compliance with governmental laws, and other events which are beyond
the reasonable control of QUALCOMM. In any month in which QUALCOMM does not
provide at least 98% Service Availability, then, as Customer's sole and
exclusive remedy, Customer shall be entitled to receive upon request a credit
against Customer's Service account in an amount per initiated MCT equal to (a)
$15.00, if Service Availability is less than 98% but more than 95%, or (b)
$25.00, if Service Availability is 95% or less. In the event the Service
Availability is less than 85% in any month, Customer shall not be charged any
monthly message charges for such month. The foregoing shall be Customer's sole
and exclusive remedy for any breach of warranty by QUALCOMM in connection with
the Services.
3.8 Position Polls Data Retention. OmniTRACS position location data for
MCTs operating within the continental United States ("position polls data")
will be deleted by QUALCOMM within fourteen (14) days after receipt of
acknowledgment of delivery to Customer over its telecommunications link (the
"fourteen day period"). QUALCOMM will maintain position polls data during this
fourteen day period for service and maintenance purposes and will each day
automatically delete position polls data which has previously been stored for
fourteen (14) days. A limited Optional Position Polls Data Retention Service
is available for a fee, which will be quoted upon request.
3.9 Ground Telecommunications Link. Customer shall be responsible for all
charges, nonrecurring and recurring, associated with the telephone ground
communications link between Customer's dispatch facility computer and
QUALCOMM's Network Management Facility in San Diego, California. Customer
shall select either a QUALCOMM-provided 800 Number Service or a leased line
service. QUALCOMM shall have no warranty obligations in connection with any
telephone ground communications link, other than to pass through to Customer
any warranties provided by the vendor or other provider thereof.
3.10 Other Support. Except as provided in this Section 3, no other
messaging or position location reporting services or support are provided under
this Agreement. If Customer requests and QUALCOMM elects to provide other
messaging or position location reporting research or other support services,
Customer shall pay for QUALCOMM's services on a time and materials basis at
QUALCOMM's then current rates, plus reimbursement for travel and per diem
expenses, if applicable.
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4. DISCLAIMERS, LIMITATION OF LIABILITY AND INDEMNIFICATION.
4.1 Limitation of Liability and Remedies. QUALCOMM's entire liability and
Customer's exclusive remedies for any damages arising from the performance or
nonperformance of the Equipment, Software, Maintenance, Service or other
services provided under this Agreement, regardless of the form of action,
whether in contract, breach of warranty, indemnification. or tort, including
negligence, strict liability, or otherwise, shall be: (i) for breach of
warranty for the installation of MCTs the remedy set forth in Section 1.3; (ii)
for breach of warranty for the Equipment or for maintenance obligations
relating to the Equipment, the remedies set forth in Section 1; (iii) for
breach of warranty for the Software or for the maintenance obligations for the
Software the remedies set forth in Section 2; (iv) for breach of warranty for
the Service, including any breach of warranty relating to telecommunications
equipment, the remedies set forth in Section 3; and (v) for claims other than
as set forth above, QUALCOMM's liability shall be limited to direct damages
proven in an amount not to exceed the total purchase price paid by Customer for
the Equipment purchased during the calendar year in which the claim arose.
THE ENTIRE LIABILITY OF QUALCOMM AND THE EXCLUSIVE REMEDY OF CUSTOMER FOR
BREACH OF WARRANTY SHALL BE THE REPLACEMENT OF THE SOFTWARE OR REPLACEMENT OF
THE EQUIPMENT WHICH DOES NOT MEET THE WARRANTIES SET FORTH IN SECTIONS 1 AND 2
OF THIS AGREEMENT. Provided however, in the event that such remedy for breach
of warranty fails of its essential purpose, QUALCOMM shall then, as Customer's
sole and exclusive remedy, reimburse Customer for that part of the Software or
Equipment as to which Customer has a claim in an amount not to exceed the
license fees paid for the Software or the purchase price paid for the
Equipment, as to which Customer has a claim, depreciated on a five (5) year
straight line basis from the date of shipment of the Software or the Equipment.
IN NO EVENT SHALL QUALCOMM BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST
PROFITS, LOST SAVINGS OR OTHER INCIDENTAL DAMAGES ARISING OUT OF THE USE OR
INABILITY TO USE THE EQUIPMENT, THE SOFTWARE, OR THE SERVICE PROVIDED
HEREUNDER, EVEN IF QUALCOMM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
4.2 Disclaimer of Warranties. EXCEPT FOR THE WARRANTIES SPECIFICALLY SET
FORTH IN SECTION 1 FOR THE EQUIPMENT, SECTION 2 FOR THE SOFTWARE, AND SECTION 3
FOR THE SERVICES, THE EQUIPMENT, SOFTWARE, SERVICES AND MAINTENANCE PROVIDED
HEREUNDER ARE PROVIDED "AS IS" AND THERE ARE NO OTHER WARRANTIES MADE BY
QUALCOMM, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4.3 Indemnification. Customer shall indemnify, defend and hold QUALCOMM
harmless against any and all losses, claims, damages or expenses (including
attorneys' fees) arising out of or related to: (i) any personal injury to or
death of any person or persons, any loss or damage of any property or any
interruption of services which are caused or claimed to have been caused
directly or indirectly from Customer's (including its employees or independent
contractors) negligent operation and/or related use or misuse of the OmniTRACS
System and Equipment including, without limitation, use of the Equipment by the
driver of a vehicle which is in motion; (ii) use of any Outdoor Unit Mounting
Bracket or other equipment not provided or approved for use with the Equipment
by QUALCOMM; (iii) any use of the OmniTRACS System by Customer for an
Unauthorized Purpose; (iv) data or other information transmitted over the
OmniTRACS System, excluding any database provided by QUALCOMM; or (v) any
breach by Customer of any of the terms and conditions of this Agreement.
5. INVOICING AND PAYMENT.
5.1 Invoicing. Deliverable Equipment and Software will be invoiced upon
shipment. The Base Connection Fee or Base Message Service Fee, as applicable,
and the Extended Maintenance Service Fee will be invoiced, in advance, on a
monthly cycle. All other Message Service, Extended Software Maintenance,
Installation, Communication Link and other service charges will be invoiced as
of the end of the monthly cycle in which they are incurred.
5.2 Payment. Customer shall pay all invoices issued within thirty (30)
days from the date of invoice. QUALCOMM reserves the right to change the
credit terms at any time, when, in QUALCOMM's opinion, Customer's financial
condition or previous payment record so warrants. Should Customer become
delinquent in the payment of any sum due, QUALCOMM, after ten (10) days from
the date of written notice to Customer. shall not be obligated to continue
performance under this Agreement or any other agreement between QUALCOMM and
Customer. A late charge of the lesser of 1.5% per month or the maximum amount
permitted by law, will be added to past due accounts. All reasonable costs and
expenses, including but not limited to attorneys' fees, court costs and service
charges incurred by QUALCOMM in collecting payment will be an expense of and
charge to Customer. Customer waives any existing and future claims and offsets
against payments due hereunder, and agrees to pay the amounts due.
5.3 Security Interest. Customer hereby grants and QUALCOMM reserves a
purchase money security interest in each item of Equipment purchased hereunder,
and in any proceeds therefrom, for the amount of its purchase price. Upon
request by QUALCOMM, Customer shall sign any document QUALCOMM deems is
necessary to perfect such security interest. Payment in full of the purchase
price of any item of Equipment purchased hereunder shall release the security
interest in that item of Equipment. If Customer fails to make any payment to
third parties or do any act as provided for in this Agreement, QUALCOMM shall
have the right, but not the obligation, without notice to or demand on
Customer, and without releasing Customer from any obligation hereunder, to make
or do the same, and to pay, purchase, contest or compromise any encumbrance,
charge, or lien which in the judgment of
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QUALCOMM appears to affect any Equipment in Customer's possession which is owned
by QUALCOMM or in which QUALCOMM has a security interest, and in exercising any
such right, incur any liability and expend whatever amounts in its discretion it
may deem necessary therefor. All expenses so incurred by QUALCOMM shall be
without demand immediately due and payable by Customer and any accounts past due
shall be subject to the late charge described in Section 5.2 above for each
delinquent month or part thereof, until paid.
5.4 Taxes. All prices and rates for the Equipment, Software, Service,
Maintenance and other services provided for under this Agreement do not include
sales, use, excise or similar taxes assessed at any time. Excepting those
taxes imposed upon QUALCOMM's income and FCC license fees, all applicable taxes
and/or assessments (including but not limited to assessments imposed by the
FCC) shall be paid by Customer. In the event that QUALCOMM. at its sole
discretion, pays for any such items on behalf of Customer, QUALCOMM will
invoice Customer such amount and Customer shall reimburse QUALCOMM in
accordance with Section 5.2.
6. TERM AND TERMINATION.
6.1 Term. The term of this Agreement shall commence upon the Effective
Date and shall continue in effect for a period of five (5) years (the "Term").
Thereafter, the Agreement shall be automatically extended on a year-to-year
basis (the "Extended Term") unless terminated by either party in writing on not
less than ninety (90) days prior written notice to the other party prior to the
applicable anniversary of the Effective Date, provided that QUALCOMM may, by
notice delivered to Customer at least ninety (90) days prior to each such
anniversary, condition such renewal upon Customer's agreement to upgrade all or
a portion of the Equipment included in the OmniTRACS System at QUALCOMM's then-
current prices applicable to such upgrades, Customer's acceptance of QUALCOMM's
then-current terms and conditions and inclusion of QUALCOMM's then-current
pricing for the Service and Extended Maintenance.
6.2 Termination. Without limiting other causes, the occurrence of any of
the following shall constitute a material default and breach of this Agreement
and shall allow the non-defaulting party to terminate this Agreement for cause
after the expiration of the applicable period of cure, if any: (i) Any failure
by Customer to pay all sums which it is obligated to pay hereunder within ten
(10) calendar days of written notice that such sum is due; (ii) Any
unauthorized disclosure or use regarding the Software or the Equipment shall
permit QUALCOMM to terminate immediately; (iii) The Agreement shall terminate
automatically, without notice, upon (a) the appointment of a receiver to take
possession of all or substantially all of Customer's assets, (b) a general
assignment by Customer for the benefit of its creditors, or (c) the institution
of a bankruptcy or other insolvency proceeding by or against Customer; (iv) Any
material default by either party of an obligation. covenant or condition
hereunder, other than those set forth above, which is not cured within thirty
(30) calendar days after the defaulting party receives written notice of such
default; or (v) Any event which would constitute a material default or breach
of any agreement between Customer and QUALCOMM or any third party for the lease
of the Equipment. QUALCOMM's right to terminate hereunder shall include the
right to terminate the Service without additional notice to Customer.
7. OTHER TERMS.
7.1 Confidentiality of Agreement and Information. Customer agrees that
any information contained in any document, including but not limited to this
Agreement and the pricing contained herein. or obtained from examination of any
Equipment or Software furnished by QUALCOMM hereunder (whether or not marked
with a confidential or proprietary data legend) shall be deemed to be
QUALCOMM's confidential or proprietary data. Customer shall not, except as
necessary for the performance of this Agreement, duplicate, use or disclose to
any third person (including any company affiliated with Customer) any such
confidential or proprietary data, without the prior written approval of
QUALCOMM, not to be unreasonably withheld, except as to any such disclosures
which are required by law. Upon the termination or earlier cancellation of
this Agreement, Customer shall promptly return to QUALCOMM all confidential or
proprietary data received. If the parties have executed a separate
Non-Disclosure Agreement for the protection of confidential or proprietary
data, the terms and conditions of such Non-Disclosure Agreement shall take
precedence over this Section.
7.2 Choice of Law and Forum. This Agreement shall be governed by and
construed under the laws of the State of California, without reference to its
conflict of laws provisions. All disputes arising hereunder shall be heard
only by a court of competent jurisdiction in the County of San Diego, State of
California, and Customer hereby submits to the jurisdiction of such courts for
the purpose of litigating such disputes.
7.3 Assignability. Neither this Agreement, nor any rights, duties or
interest herein, shall be assigned, transferred, distributed, sublicensed,
subcontracted, pledged, or hypothecated by Customer without QUALCOMM's prior
written consent. Any such attempted conveyance in violation of this Section
shall be void and shall constitute a material default entitling QUALCOMM to
terminate this Agreement.
7.4 Severability. If any of the provisions of this Agreement is
determined to be invalid, illegal, or otherwise unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby; and the parties shall substitute for the affected
provision an enforceable provision which approximates the intent and economic
effect of the affected provision as closely as possible.
7.5 Survivability. The following provisions of this Agreement shall
survive any expiration or complete termination of this Agreement: 1.5, 1.6,
1.9, 2.3 through 2.5 inclusive, 2.10, 3.5 through 3.7 inclusive. 4.1 through
4.3 inclusive, 5.3, 5.4, 7.1, 7.2, 7.7 and 7.8.
7.6 Waiver of Breach. The waiver by any party of a breach of any of the
provisions of this Agreement shall not operate as a waiver of any subsequent
breach.
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7.7 Notices. All notices must be in writing and shall be deemed given:
(i) when delivered personally; (ii) when delivered by facsimile machine if
confirmation of receipt is requested and obtained; (iii) five (5) days after
having been mailed registered or certified mail, return receipt requested,
postage prepaid; and (iv) one (1) day after having been mailed by overnight
mail with a reliable express mail courier. Notices shall be addressed or
delivered to the Customer invoice address on Page 1 hereof and to QUALCOMM at
0000 Xxxx Xxxx., Xxx Xxxxx, XX 00000-0000, Attn: OmniTRACS Contracts
Administration.
7.8 Attorneys' Fees. If any party or parties commences an action against
any party or parties arising out of or in connection with this Agreement, the
prevailing party or panics shall be entitled to recover from the losing party
or parties reasonable attorneys' fees and costs of suit.
7.9 Force Majeure. Neither party shall be liable to the other for failure
or delay in the performance of a required obligation other than the payment of
money if such failure or delay is caused by riot, fire, flood, natural
disaster, act of God, governmental action or decree, or other event beyond such
party's control, provided that such party gives prompt written notice of such
condition and resumes its performance as soon as possible, and provided further
that the other party may terminate this Agreement if such condition continues
for a period of one hundred and eighty (180) days without demonstration by the
non-performing party of the ability to resume performance of its obligations
within a reasonable period.
7.10 Remedies. Due to the unique, confidential and proprietary nature of
the Software, Customer understands and agrees that QUALCOMM's remedies at law
for Customer's breach of this Agreement may be inadequate and that QUALCOMM
shall be entitled to equitable relief, including without limitation, injunctive
relief, specific performance or other equitable remedies in addition to all
other remedies provided herein or available to QUALCOMM at law or equity. No
remedy made available to QUALCOMM by any of the provisions of this Agreement is
intended to be exclusive of any other remedy, and each and every remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or otherwise.
7.11 QUALCOMM Lease. In the event Customer enters into a separate lease
agreement with QUALCOMM to lease all or a portion of the Equipment from
QUALCOMM, notwithstanding any provision to the contrary contained in this
Agreement, title to such leased Equipment shall remain vested at all times in
QUALCOMM or its assignees, any references to Customer's purchase of or
obligation to pay the purchase price for the leased Equipment shall have no
force and effect, and payment for the Equipment shall be as set forth in the
separate lease agreement between QUALCOMM and Customer.
7.12 Entire Agreement. This Agreement contains the entire understanding,
agreements and representations of the parties, and Customer acknowledges and
agrees that in entering into this Agreement, Customer did not rely upon any
representations or warranties other than those set forth herein. This
Agreement supersedes all prior writings, discussions and understandings
concerning the subject matter. Any additional or different terms or conditions
proposed by Customer or contained in any purchase order are hereby rejected and
shall be of no force and effect unless expressly agreed to in writing by
QUALCOMM. In order to be binding, any waiver, alteration, amendment or
modification of any of the provisions of this Agreement must be in writing and
signed by a duly authorized representative of both parties.
7.13 Counterparts and Facsimile Delivery. This Agreement may be executed
in two or more identical counterparts, each of which shall be deemed to be an
original and all of which taken together shall be deemed to constitute the
Agreement when a duly authorized representative of each party has signed a
counterpart. The parties may sign and deliver this Agreement by facsimile
transmission. Each party agrees that the delivery of the Agreement by
facsimile shall have the same force and effect as delivery of original
signatures and that each party may use such facsimile signatures as evidence of
the execution and delivery of the Agreement by all parties to the same extent
that an original signature could be used.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed
by their duly authorized representatives as of the date first set forth on Page
1.
XXXXXXXX Xxxxxxxxxxxx CUSTOMER
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxx Xxxxxxxxxx, for the Company
------------------------ --------------------------------------------
Name: Xxxxxx Xxxxx Name: Timely Transportation - Xxxx Xxxxxxxxxx
---------------------- -------------------------------------------
Title: VP Finance Title: Chief Financial Officer
---------------------- -----------------------------------------
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ATTACHMENT 1
SPARES PRICE LIST*
Outdoor Xxxx #00-0000 $ 1,830.00
Communications Xxxx #00-0000 $ 2,000.00
Display Unit (QWERTY) #CV90-3656-1 $ 380.00
20' Outdoor Cable #CV90-2567-20 $ 85.00
17' Display Cable #CV90-3689-17 $ 55.00
20' Power Cable #CV90-2794-20 $ 70.00
Comm Xxxx Xxxxxxxx Xxxx #00-0000-0 $ 65.00
(Includes Stud Plate Kit)
Display Holster Kit #00-0000-0 $ 30.00
(Includes Backing Plate)
* Current price list as of the Effective Date of this Agreement; all
prices are subject to periodic change without notice.
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ATTACHMENT 2
DELIVERY SCHEDULE
The prices set forth in this Agreement and the following Delivery Schedule are
predicated upon this Agreement being executed by both Parties on or before
April 28, 1995.
The MCTs purchased under this Agreement shall be delivered as follows:
Delivery Quantity
-------- ---------
June 1995 60 Units
TBD (Prior to March 1, 1997) 40 Units
---------
TOTAL MCTs 100 Units
Deliveries may be made incrementally throughout the month until the total
monthly quantity is received. QUALCOMM's obligation to deliver the Equipment
is contingent upon QUALCOMM credit approval and, if applicable, receipt by
QUALCOMM of written confirmation of financing approval for the purchase of the
Equipment. Delivery dates are defined to be the date QUALCOMM ships the
Equipment. All deliveries shall be made to the Shipping Address first
specified in this Agreement unless otherwise specified by Customer within
thirty (30) days prior to the scheduled delivery date.
For the MCTs for which delivery is to be determined, Customer shall give
QUALCOMM sixty (60) days prior written notice of the desired delivery date(s)
and quantities of such MCTs to be delivered to Customer. QUALCOMM will use its
reasonable efforts to meet the delivery date requested by Customer, and will
notify Customer if a different delivery date is required.
For other Equipment and Optional Services purchased under this Agreement,
corresponding delivery schedules shall be specified upon mutual agreement.
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ATTACHMENT 3
SPECIAL PROVISIONS
I. MCT PRICE CONTINGENCY.
The price of $3,900.00 for each MCT is specifically predicated upon
Customer purchasing and accepting delivery of one hundred (100) MCTs in
accordance with the delivery schedule set forth in Attachment 2, Delivery
Schedule. In the event Customer does not purchase and accept delivery of 100
MCTs in accordance with the Delivery Schedule, then the purchase price for all
MCTs (delivered and undelivered) shall be increased based on the actual
quantity purchased as follows:
Total of 1 - 50 MCTs $4,000
Total of 51- 99 MCTs $3,950
In the event of a price adjustment in accordance with this Paragraph, QUALCOMM
will invoice Customer and Customer shall pay, in accordance with Section 5,
entitled "Invoicing and Payment," an additional amount for each MCT previously
purchased by Customer equal to the difference between the applicable price set
forth in the above schedule and $3,900.00. Additionally, upon such price change
pursuant to this Paragraph, Customer shall pay the full applicable increased
purchase price in accordance with Section 5 for all MCTs delivered to Customer
after the price change.
II. OUTDOOR UNIT MOUNTING BRACKET.
QUALCOMM agrees to provide one (1) outdoor unit mounting bracket with
each MCT purchased and delivered hereunder for no charge. Any additional
outdoor unit mounting brackets will be at the price set forth in Item 02 at
Page 1.
III. BASE MESSAGE SERVICE OPTION.
At any time during the initial term of this Agreement, Customer may
elect, by providing written notification to QUALCOMM, to replace the
calculation for those Message Services charges constituting the Base Connection
Fee (Item 19a) and the Regular Message Rate (Item 20) with the Base Message
Service charge of $50.00 per month per MCT, as more particularly described in
Item 19.b. on Page 2. Such election shall become effective upon the beginning
of QUALCOMM's billing cycle which immediately follows the receipt by QUALCOMM
of such notification, provided such notification is given at least one week
prior to the commencement of QUALCOMM's next billing cycle.
IV. THIRD PARTY SOFTWARE.
Customer is retaining a third party software vendor for development of
its satellite interface software to the OmniTRACS System. Customer
acknowledges that it shall be solely responsible for ensuring that the third
party interface software is capable of providing the
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OmniTRACS Service. QUALCOMM shall not be liable to Customer in the event the
OmniTRACS System does not function due to the interface software provided by
Customer being defective or improperly interfaced to the OmniTRACS System.
Additionally, Customer acknowledges that QUALCOMM, at its sole discretion, may
require that the third party interface software be tested using QUALCOMM's test
hub prior to Customer using the third party interface software with QUALCOMM's
satellite network.
V. LEASED LINE COMMUNICATIONS LINK.
A. Nonrecurring Charges. QUALCOMM will provide a digital leased
line communications link between Customer's asynchronous dispatch facility
computer and QUALCOMM's Network Management Facility ("NMF") in San Diego,
California. QUALCOMM agrees to waive the one-time installation site charge of
$4,190.00 (covers dedicated communications resources) and the one-time
telecommunications service provider installation charge of $1,081.00, for the
Async leased line communications link. Customer shall be required to provide a
Codex 35XX DSU/CSU (two (2) port) (Modem), which Customer may elect to purchase
from QUALCOMM for $1,713.00. QUALCOMM will invoice and Customer agrees to pay
the amount set forth above in accordance with Section 5 of this Agreement
entitled "Invoicing and Payment."
B. Recurring Charges. QUALCOMM will invoice and Customer agrees
to pay $541.00 per month for the asynchronous leased line communication link
between Customer's dispatch facility at area code and prefix 404 - 953 to
QUALCOMM's NMF at area code and prefix 619 - 587. The monthly fee is subject
to adjustment, as QUALCOMM's telecommunications service provider adjusts its
monthly fee. QUALCOMM will invoice Customer monthly for the asynchronous
leased line after installation and Customer shall pay for the leased line in
accordance with Section 5.
C. Dial Restore Line. QUALCOMM will also provide a Dial Restore
Line at QUALCOMM's NMF for a monthly fee of $40.00. QUALCOMM will invoice
Customer monthly for the Dial Restore Line after installation and Customer
shall pay for the Dial Restore Line in accordance with Section 5. Customer
shall be responsible for installing and maintaining at all times, at Customer's
expense, a dedicated common business line at Customer's facility to support the
Dial Restore Line.
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