EXHIBIT 10.12
PROJECT AGREEMENT
[CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST FOR
CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE SECURITIES EXCHANGE
ACT OF 1934. OMITTED PORTIONS: SECTION 4.1 (IN PART), APPENDIX 1, APPENDIX 0,
XXXXXXXX 0, XXXXXXXX 4. THE OMITTED PORTIONS HAVE BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.]
This project agreement (this "Agreement") is made and entered into by and
between
1. CellPoint Systems AB, with an address for purposes of this Agreement at
Sofielundsvagen 4, 191 47 Sollentuna ("CP"), and
2. Xxxx0 XX, with an address for purposes of this Agreement at Xxx 00, 000 00
Xxxxx ("Tele2").
CP and Tele2 are hereinafter individually referred to as "Party" and they are
jointly referred to as the "Parties".
1. BACKGROUND
1.1 CP has developed a system enabling GSM-based positioning and telematics
(the "CellPoint System"). The CellPoint System is described in the
CellPoint System Technical Description (APPENDIX 1).
1.2 Tele2 is licensed to operate mobile communications services in Sweden.
1.3 Tele2 has decided to launch commercial positioning services to its
customers based on the CellPoint System after a Quotation from CP (APPENDIX
2). Tele2's positioning services are described in the Product Description
(APPENDIX 3). The implementation of Tele2's positioning services are
described in the Implementation Project Definition (APPENDIX 4).
1.4 CP and Tele2 are interested in jointly carrying out a project in order to
implement Tele2's positioning services (the "Implementation Project") and
to negotiate the detailed terms and conditions of a commercial agreement
(the "Commercial Agreement").
1.5 In consideration of the foregoing, the Parties have agreed the following:
2. SCOPE OF THE AGREEMENT
2.1 The scope of this Agreement is to regulate the relationship and the
activities between CP and Tele2 during the Implementation Project. The aim
is to conclude all necessary preparations before the commercial launch of
Tele2's positioning services as described in the Product Description. The
Parties shall jointly
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determine the specifications and the evaluation criteria to test the
performance and capacity of the Tele2's Positioning services as described
in the Product Description. The target date for internal launch of Tele2's
positioning services is June 1, 1999.
2.2 Further, in parallel with the Implementation Project, CP and Tele2 shall
negotiate the detailed terms and conditions of, and execute as
expeditiously as possible, the Commercial Agreement, which shall be based
on the Quotation.
3. THE DIVISION OF RESPONSIBILITIES AND COSTS
The division of responsibilities and costs between the Parties during the
Implementation Project shall be as specified in this Agreement and its
Appendices. As expeditiously as possible after the start of the
Implementation Project, the Parties shall agree on a project plan (the
"Project Plan") detailing the activities and the time schedule and sequence
of events for the performance of the Implementation Project.
4. COMMERCIAL AGREEMENT
4.1 This Agreement shall form the basis for the final Commercial Agreement and
the Parties shall use best efforts to conduct good faith negotiations on
the detailed terms and conditions of the Commercial Agreement. The
Commercial Agreement shall have an initial term of 24 months and it shall,
unless terminated by either party, be prolonged for consecutive 12-month
periods. [OMITTED BASED UPON A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT
TO RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934. THE OMITTED
PORTION HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.]
4.2 [OMITTED BASED UPON A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT
TO RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934. THE OMITTED
PORTION HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.]
5. INTELLECTUAL PROPERTY RIGHTS
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The CellPoint System, including any confidential information of CP and all
rights therein, including without limitation, any intellectual property
rights relating thereto, are owned solely by CP and no such rights are
granted and/or transferred to Tele2 pursuant to this Agreement. All CP's
trademarks, service marks, trade names, logos or other words or symbols are
and will remain the exclusive property of CP and any use by Tele2 of the
trademarks and/or logos of CP or the CellPoint System are subject to the
terms and conditions of the Commercial Agreement.
6. CONFIDENTIALITY
6.1 Neither Party shall use or divulge or communicate to any person (other than
those whose province it is to know the same or as permitted or contemplated
by this Agreement or with the written approval of the other Party or as may
be required by law or by any applicable stock exchange regulations):
(a) any confidential information concerning the systems, customers,
business, accounts, finance or contractual arrangements or other
dealings, transactions or affairs of the other Party which may come to
first Party's knowledge during the term of this Agreement; or
(b) any of the terms of this Agreement
and each Party shall use its best endeavours (i) to prevent the
unauthorised publication or disclosure of any such information, materials
or documents and (ii) to ensure that any person to whom such information,
materials or documents are disclosed by such Party is aware that the same
is confidential to the other Party.
6.2 Each Party shall ensure that its employees are aware of and comply with the
confidentiality and non-disclosure provisions contained in this Section and
shall indemnify the other Party against any loss or damage which the other
Party may sustain or incur as a result of any breach of confidence by any
of such Party's employees.
6.3 The provisions of this Section shall survive the termination of this
Agreement, but the restrictions contained in sub-section 6.1 shall cease to
apply to any information which may come into the public domain otherwise
than through unauthorised disclosure by either Party or their employees.
7. TERMINATION
7.1 Notwithstanding anything else contained herein, this Agreement may be
terminated by either Party forthwith on giving notice in writing to the
other if the other Party:
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(a) becomes insolvent or starts negotiations about composition with its
creditors or a petition in bankruptcy is filed by or against it or it
makes an assignment for the benefit of its creditors; or
(b) fails to fulfil any of its material obligations under this Agreement
and (in case of a failure capable of being remedied) remedial action
to correct such failure is not commenced within thirty (30) days from
having received a written request for such remedial action from the
first Party, which request specifically references the section of this
Agreement being breached and which explicitly states the first Party's
intention to terminate this Agreement pursuant to this sub-section
7.1(b) if such remedial action is not commenced within such thirty day
period.
7.2 Any termination of this Agreement (howsoever occasioned) shall not affect
any accrued rights or liabilities of either Party nor shall it affect the
coming into force or the continuance in force of any provision hereof which
is expressly or by implication intended to come into or continue in force
on or after such termination.
8. LIABILITY
Since the scope of this Agreement is to carry out the Implementation
Project and not to provide the CellPoint System for commercial use, the
Parties agree that neither Party shall be liable to the other Party or any
third party for any indirect damages or losses caused by, or related to,
the CellPoint System and/or either Party's performance (or non-performance)
of its obligations hereunder. The liability for direct damages between the
Parties to be limited to SEK 500,000. CP disclaims all warranties, either
express, implied or statutory warranties, including but not limited to the
warranties of design, merchantability or fitness for a particular purpose,
with respect to the CellPoint System. CP does not warrant, guarantee, or
make any representations regarding the use of, or the results of the use
of, the CellPoint System in terms of correctness, accuracy, reliability or
otherwise, and Tele2 relies on the Cell-Point System and its results solely
at Tele2s own risk. The Parties acknowledge that the limitations and
exclusions of liability are reasonable in the context of the arrangements
taken on a whole. This limitation of liability clause shall be renegotiated
when entering into the Commercial Agreement.
9. FORCE MAJEURE
9.1 Neither Party will be responsible for failure to fulfil its obligations due
to events of force majeure nor due to events beyond its control or due to
events beyond its sub-contractors' control.
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9.2 The events referred to in sub-section 9.1 include, but are by no way
limited to; partial or total strikes (either internal or external),
lock-out, inclemency, epidemic, blockage of means of transport or of
supplies for whatever reason, earthquake, fire, storm, flood, water damage
and governmental or legal restrictions.
10. SEVERABILITY
If a provision of this Agreement, or the application thereof to any person
or circumstance, shall for any reason or to any extent, be invalid or
unenforceable, such invalidity or enforceability shall not in any manner
affect or render invalid or unenforceable the remainder of this Agreement,
and the application of that provision to other persons or circumstances
shall not be affected but, rather, shall be enforced to the extent
permitted by law. In the event of the invalidity or unenforceability of any
provision of this Agreement or of the application thereof to any person or
circumstance, the Parties shall, at the request of either Party, negotiate
in good faith to agree on changes of amendments to this Agreement which are
required to carry out the intent and accomplish the purpose of this
Agreement in the light of such invalidity or unenforceability.
11. WAIVER
The failure of either Party hereto to insist upon the strict adherence to
any term of this Agreement on any occasion shall not be considered as a
waiver of any right hereunder nor shall it deprive that Party of the right
to insist upon the strict adherence to that term or any other term of this
Agreement at some other time.
12. AGREEMENT
This Agreement (which term shall be deemed to include all of the Appendices
attached hereto) constitutes the entire agreement between the Parties with
respect to its subject matter, and supersedes all other agreements,
understandings and contracts whether oral or written with respect thereto.
Any purchase order, order acknowledgement, invoice or other document
containing additional or different terms of conditions shall not have force
or effect upon the terms of conditions of this Agreement and any Party
receiving such document shall not be deemed to have accepted said
additional or different terms or conditions by its failure to object
thereto.
13. SURVIVAL OF RIGHTS AND OBLIGATIONS
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Rights and obligations under this Agreement, which by their nature would
continue beyond the termination or ending in any other way of this
Agreement shall survive the termination of this Agreement.
14. AMENDMENTS
No amendments, changes, revisions or discharges of this Agreement, in whole
or in part, shall have any force or effect unless set forth in writing and
signed by the Parties hereto.
15. ASSIGNMENT
The Parties may not wholly or partly assign, sub-contract, pledge or
otherwise encumber any of its rights and/or obligations under this
Agreement to any third party, except as expressly stated herein or with the
prior written consent of the other Party. Notwithstanding the foregoing,
either Party may assign all of its rights or obligations arising out of
this Agreement to any company which is from time to time a holding company
or a subsidiary of such Party or a subsidiary of any such holding company.
16. PRESS RELEASES
Subject to the consent of the other Party (which consent shall not be
unreasonably withheld or delayed) each Party may issue one or several press
releases with respect to the Implementation Project and this Agreement.
17. NON-EXCLUSIVITY
This Agreement will in no way be deemed to restrict or otherwise limit CP's
right to freely carry on (on its own or jointly with third parties) any
business, testing, development or research activities anywhere in the
world, including, but not limited to, the marketing and operation of the
CellPoint System.
18. GOVERNING LAW
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This Agreement shall be governed by, and construed and enforced in
accordance with the substantive laws of Sweden without regard to its
principles of conflicts of laws.
19. ARBITRATION
Any and all disputes, controversies and claims arising out of or in
connection with this Agreement, or the breach, termination or invalidity
thereof, shall be settled by arbitration in accordance with the rules of
the Arbitration Institute of the Stockholm Chamber of Commerce. Unless the
Parties agree otherwise, the arbitration proceedings shall be conducted in
Stockholm, Sweden, in the English language. The arbitration award shall be
final and binding upon the Parties.
20. NOTICES
All notices required by this Agreement to be given by either Party to the
other Party shall be in English, unless otherwise is specifically agreed
upon, and shall be sent by mail, telex or telefax and shall be addressed to
the last known address of the other Party and shall be confirmed by
registered letter if so required.
21. EFFECTIVE DATE
This Agreement becomes effective when it has been duly executed by both
Parties.
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This Agreement has been executed in two identical counterparts, whereof the
Parties have taken one each.
Date: Date:
April 23, 1999 April 23, 0000
Xxxxx: Xxxxx:
XXXXXXXXX XXXXXXX XX XXXX0 XX
/S/ XXXXX XXXXXXXXXX, /S/ XXXX-XXXXX JARNHEIMER,
--------------------- --------------------------
PRESIDENT MANAGING DIRECTOR
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Appendix 1
CellPoint System
Technical Description
[OMITTED BASED UPON A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934. THE OMITTED PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
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Appendix 2
CellPoint System
Quotation
[OMITTED BASED UPON A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934. THE OMITTED PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
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Appendix 3
CellPoint System
Positioning Services
Product Description
[OMITTED BASED UPON A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934. THE OMITTED PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
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Appendix 4
CellPoint System
Positioning Service Implementation Project Definition
[OMITTED BASED UPON A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934. THE OMITTED PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
