EXHIBIT 10.2
PURCHASE AGREEMENT FOR GOODS
BETWEEN
AMERITECH MOBILE (WIRELESS)
COMMUNICATIONS, INC.
AND
@ROAD, INC.
PURCHASE AGREEMENT
FOR
GOODS
This Agreement is entered into as of July 15, 1999, ("Effective Date") between
_______________________________________________________________________________,
___________________________________________, and @Road, Inc., a California
corporation, with principal offices at 00000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxx, XX
00000, (hereinafter "Supplier").
In consideration of the mutual promises set forth herein, the parties agree as
follows.
PURPOSE
-------
This Agreement is for the purchase of CDPD modems and GPS products and related
incidental services (hereinafter individually and collectively "Goods") by Buyer
in accordance with the terms and conditions contained herein.
AGREEMENT TERM
--------------
This Agreement is effective for Purchase Orders placed from July 15, 1999,
through July 14, 2001 unless terminated earlier as set forth herein.
ACCEPTANCE
----------
All Goods shall be received by Buyer subject to Buyer's inspection and right of
rejection. Buyer assumes no liability for Goods produced or shipped in excess of
the quantity specified in any Purchase Order issued hereunder. Buyer shall have
thirty (30) working days (the "Inspection Period") after the Delivery Date (as
defined below in the Section entitled "Delivery") to inspect and test the Goods
shipped by Supplier. If the Buyer determines that any Goods fail to meet
Suppliers specifications set forth in Attachment C in any material way, the
Buyer may reject such Goods by notifying Supplier in writing of such rejection
and requesting a Returned Material Authorization ("RMA") number; provided, that
such written notification and request for an RMA number must be received by
Supplier during the Inspection Period. Within ten (10) days of receipt of the
RMA number, Buyer shall return the defective Goods to Supplier, insured and with
transportation prepaid, with a written description of the defect. Supplier will
at its option replace the returned Goods or issue Buyer a credit for the
returned Goods at no charge to Buyer (including return transportation and
related insurance costs) if Supplier confirms the defect. Goods not rejected
during the Inspection Period will be deemed accepted upon the expiration of the
Inspection Period.
AFFILIATES
----------
As used in this Agreement, the term "Affiliates" shall include Ameritech
Corporation and any business entity which is, directly or indirectly, at least
fifty percent (50%) owned by Ameritech
CONFIDENTIAL & PROPRIETARY
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
Corporation. "Affiliate" also means any successor to Ameritech Corporation,
whether by change of name, dissolution, merger, consolidation, reorganization,
or otherwise.
ASSIGNMENT
----------
Neither party shall assign any right or obligation under this Agreement without
the other party's prior written consent; provided, however, that either party
shall have the right to assign its rights, obligations and privileges hereunder
to a merger partner, successor in business, or acquirer of all or substantially
all of such party's stock (or equivalent equity securities), business, or assets
without obtaining the other party's consent to such assignment. Any other
attempted assignment shall be void, except that either party may assign moneys
due or to become due to it, provided that (a) the assigning party gives the
other party at least thirty (30) days prior written notice of such assignment
and (b) such assignment does not impose upon the other party obligation to the
assignee other than the payment of such moneys.
Notwithstanding the foregoing, Buyer may assign this Agreement, in whole or in
part, to any of its Affiliates who agree in writing to be bound by the terms and
conditions of this Agreement. Upon such assignment and assumption of liability.
Thereto by the assignee the assignor shall be discharged of any liability under
this Agreement.
Without limiting the generality of the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of the parties respective successors
and assigns.
AUTHORITY
---------
Supplier represents and warrants to Buyer that it is a corporation duly
organized; validly existing and in good standing under the laws of the State of
California. Supplier represents and warrants to Buyer that it has all requisite
power and authority and all material licenses, permits and other authorizations
necessary to carry, on its business as now conducted. Supplier represents and
warrants to Buyer that it has all requisite power and authority to execute,
deliver and perform this Agreement and the other agreements contemplated hereby
and to perform its obligations hereunder and thereunder. The execution, delivery
and performance by Supplier of this Agreement have been duly and validly
authorized by Supplier. No other corporate act or proceeding on the part of
Supplier, its Board of Directors or its shareholders is necessary to authorize
the execution, delivery or performance by Supplier of this Agreement.
BILLING RECORDS
---------------
Supplier shall maintain, at no additional charge to Buyer, in accordance with
generally accepted accounting principles, complete and accurate records related
to amounts billed to and payments made by Buyer hereunder. Supplier shall
provide Buyer supporting documentation concerning any alleged violation by
Supplier of the terms of this Agreement or concerning any disputed invoice or
payment within thirty (30) days after Buyer notifies Supplier of a dispute or,
at Buyer's option, Supplier shall permit Buyer, or Buyer's agent, to examine and
audit these records at Supplier's premises at all reasonable times to verify the
amounts in dispute; provided, that Buyer provides Supplier reasonable advance
notice of such audit. Payments made under this
Agreement shall be subject to final adjustment as determined by such review.
Supplier shall retain such records for a period of three (3) years from the
expiration of this Agreement or such length of time as may be required by any
federal, state or local law, ordinance or regulation, whichever is longer.
CHANGES TO GOODS
----------------
Supplier may not make changes to the Goods or modify the drawings and
specifications relating thereto, or substitute products of a later design to
fill a Purchase Order, without Buyer's consent. As conditions to such consent,
such change, under normal and proper use, shall not affect the price, operation,
reliability or life of the Goods or the interchangeability of the Goods with
other goods, and Supplier shall notify Buyer in writing thereof not less than
ninety (90) days prior to the planned change. In the event Buyer and Supplier
fail to reach agreement upon any proposed change, modification, or substitution,
Buyer shall have the right to terminate any and all Purchase Orders, in whole or
in part, for Goods affected by such change, modification, or substitution,
without penalty or obligation of any kind.
Notwithstanding any notice requirement above to the contrary, in the event an
extremely unsatisfactory condition, including, by way of example and not of
limitation, a safety or fire hazard, requires immediate action, Supplier shall
immediately notify Buyer. For a period of five (5) years after the Delivery Date
of the Goods affected thereby ("Hazard Period"), as Buyer's sole remedy and
Supplier's exclusive liability, Supplier shall use commercially reasonable
efforts to replace or modify, at no charge to Buyer, all such Goods, including
spare parts, in Buyer's possession. The Buyer will return such Goods by
notifying Supplier in writing and requesting an RMA number; provided, that such
written notification and request for an RMA number must be received by Supplier
during the Hazard Period. Within ten (10) days of receipt of the RMA number,
Buyer shall return the defective units to Supplier, insured and with
transportation charges prepaid, with a written description of the defect. The
limited remedies set forth in this Section shall not apply if (i) the Goods have
been altered or modified, (ii) the Goods have been damaged by reason of
negligence not attributable to Supplier, or subjected by Buyer to computer or
electrical malfunction, or (iii) the Goods have been used, adjusted, installed,
maintained, or operated other than in accordance with instructions furnished by
Supplier, or with an application or in an environment other than that intended
or recommended by Supplier.
CHOICE OF LAW AND FORUM
-----------------------
This Agreement and any claims arising hereunder or related hereto, whether in
contract or tort, shall be governed by the laws of Illinois. Any suit regarding
this Agreement must be brought in a court of competent jurisdiction in Xxxx
County, Illinois.
COMPLIANCE WITH LAWS
--------------------
Supplier and all persons furnished by Supplier shall comply with the provisions
of the Fair Labor Standards Act, the Federal Occupational Safety and Health Act,
environmental laws (the subject of which may include, but shall not be limited
to, air, water, noise, soil, and land-fill areas), the rules and regulations of
the Federal Communications Commission and all other applicable
federal, state and local laws, ordinances and regulations in the performance of
this Agreement, including the procurement of required permits and certificates.
"Performance" as used herein shall include, but not be limited to, Supplier's
furnishing, installation, removal, processing, transportation, use, disposal,
treatment, reclamation or other method of handling materials subject to this
Agreement which Supplier agrees to provide to Buyer pursuant to this Agreement.
Supplier shall maintain throughout the term of this Agreement all federal, state
and local licenses, permits, and certificates necessary to perform this
Agreement, which shall be promptly furnished to Buyer upon Buyer's written
request.
CONFIDENTIAL INFORMATION
------------------------
Any information, including but not limited to, specifications, drawings,
computer programs, technical or business information or other data in whatever
form (hereinafter "Information"), furnished by either party to the other,
whether in writing, orally or visually, under or in contemplation of this
Agreement or to which such party has access through its performance hereunder
shall be considered confidential and shall be subject to the following:
(a) The receiving party shall restrict disclosure of the Information
to the receiving party's employees with a "need to know" (i.e.,
employees that require the Information to perform their
responsibilities in connection with this Agreement or a Purchase
Order) and shall not disclose it to any other person or entity
without the prior written consent of the disclosing party;
(b) The receiving party shall use the Information only for purposes
of performing under this Agreement;
(c) The receiving party, shall advise those employees who access the
Information of their obligations with respect thereto;
(d) The receiving party shall copy the Information only as necessary
for those employees who are entitled to receive it and shall ensure
that all confidentiality notices are reproduced in full on such
copies; and
(e) The receiving party shall return all copies of such Information
to the disclosing party at the disclosing party's request.
The receiving party recognizes and agrees that the unauthorized use or
disclosure of the Information would cause irreparable harm to the disclosing
party for which it would have no adequate remedy at law, and that an actual or
contemplated breach of this Section shall entitle the disclosing party to obtain
immediate injunctive relief prohibiting such breach, in addition to any other
rights available to it. The obligations herein contained shall expressly survive
the termination or expiration of this Agreement.
The Information shall not be considered confidential and shall not be subject to
the foregoing if the receiving party can demonstrate that the Information:
(a) Is or becomes available to the public through no breach of this
Agreement or a Purchase Order;
(b) Was previously known by the receiving party without any
obligation to hold it in confidence;
(c) Is received from a third party free to disclose such Information
without restriction;
(d) Is independently developed by the receiving party without the use
of the disclosing party's Information;
(e) Is approved for release by written authorization of the
disclosing party, but only to the extent of such authorization;
(f) Is required by law or regulation to be disclosed, but only to the
extent and for purposes of such required disclosure; or
(g) Is disclosed in response to a valid order of a court or lawful
request of a governmental agency, but only to the extent of and for
the purposes of such order or request, provided that the receiving
party first notifies the disclosing party of the order or request ten
(10) days prior to disclosure and permits the disclosing party to seek
an appropriate protective order.
DEFAULT
-------
If either party fails to perform or observe, in any substantial way, any
material term or condition of this Agreement or a Purchase Order, such action
shall constitute a material breach of this Agreement. If the breaching party
fails to remedy or to undertake reasonable steps to remedy such material breach
within fifteen (15) days after receipt of written notice of the breach from the
non-breaching party, the non-breaching party may, without further notice, cancel
the then-remaining balance of this Agreement and/or any Purchase Order, as
applicable, without any further obligation thereunder whatsoever except as to
payment for Goods already received and accepted by Buyer. In the event the
Supplier is the party in default and the parties established a commitment,
purchase level or discount program, the quantity covered by such canceled
Purchase Order(s) shall be deducted from such commitment, purchase level or
volume required for discount entitlement. The rights provided to the non-
breaching party under this Section are not intended to constitute an election
of remedies, and, except as provided otherwise in this Agreement or the subject
Purchase Order, the non-breaching party shall be entitled to any additional
rights and remedies available to it at law or in equity.
Unless otherwise agreed by the parties in writing, this Agreement will terminate
upon the termination of the Wireless Network Services Agreement of even date
herewith between the Buyer and Supplier.
DELAYS
------
Time is of the essence in Supplier's performance of its obligations under
Agreement. If Supplier has knowledge that anything prevents or threatens to
prevent timely performance under this Agreement, Supplier shall immediately
notify Buyer thereof, provided such notification shall not relieve Supplier of
the requirement set forth in the preceding sentence.
DELIVERY
--------
Supplier shall deliver all Goods on the delivery date ("Delivery Date") and to
the site specified on the applicable purchase order and on Supplier's
acknowledgment thereof. Buyer may elect to advance or delay such Delivery Date
provided that Supplier has been given no less than ten (10) days written notice,
prior to the Delivery Date of such change.
ENTIRE AGREEMENT
----------------
The terms in this Agreement and the attachment(s) and specification(s) referred
to herein, which are incorporated herein by this reference, constitute the
entire agreement between the parties with respect to the subject matter hereof,
superseding all prior understandings and communications, oral or written. The
Parties acknowledge that this Agreement has been mutually negotiated. In
addition, neither party shall be bound by any terms additional to or different
from those in this Agreement that may appear subsequently in quotations,
acknowledgments, invoices or any other communications from Supplier or purchase
orders, invoices or like documents from Buyer. This Agreement may not be
modified except by a writing signed by both parties.
EQUAL OPPORTUNITY REQUIREMENTS
------------------------------
Supplier shall comply, to the extent applicable, with the Nondiscrimination
Provisions noted in Attachment B.
F.O.B.
-----
All sales shall be F.O.B. origin. Risk of loss and title to the Goods shall pass
to the Buyer upon delivery of the Goods on the Delivery Date.
FORCE MAJEURE
-------------
Neither Buyer nor Supplier shall be liable to the other for any delay or failure
in performance hereunder (other than a failure to pay monies) due to fires,
strikes, threatened strikes, stoppage of work, embargoes, requirements imposed
by governmental regulations, civil or military authorities, acts of God, the
public enemy or other causes which are beyond the reasonable control of the
party unable to perform (hereinafter "Force Majeure"). If a Force Majeure
occurs, the party delayed or unable to perform shall give immediate notice to
the other party. In the event Supplier is the party delayed or unable to
perform, Buyer may elect: (a) to terminate any affected Purchase Order relating
to Goods not already delivered without liability to Supplier, or (b) to suspend
performance under the affected Purchase Order for the duration of the Force
Majeure, during which period Buyer may buy elsewhere substitute goods and, if
applicable,
allow Supplier to resume performance of such Purchase Order once the Force
Majeure ceases. In the event the parties establish a commitment, purchase level
or discount program, the quantity bought or for which commitments have been made
elsewhere shall be deducted from such commitment, purchase level or discount
program. Unless written notice of termination is given by Buyer, option (b)
shall be deemed selected.
GOODS AND PRICES
----------------
Goods which may be purchased pursuant to this Agreement and the prices
applicable thereto are set forth in Attachment A hereto.
HAZARDOUS/TOXIC MATERIALS
-------------------------
Supplier shall identify to Buyer in advance of delivery, any toxic substances or
hazardous materials incorporated in or associated with the Goods provided
hereunder and shall advise Buyer of all precautions to be taken for their use
and disposal. When applicable, Supplier shall furnish Buyer a completed Material
Safety Data Sheet for any Goods furnished hereunder as required by any federal,
state, or local laws, ordinances or regulations. Any transportation or other
handling of hazardous or toxic materials by Supplier shall be performed in
accordance with all applicable federal, state and local laws, ordinances and
regulations.
HEADINGS
--------
The Section headings inserted in this Agreement are for convenience only and
shall not affect the meaning or interpretation of this Agreement.
INDEMNITY
---------
Supplier shall defend, indemnify, and hold harmless Buyer, its Affiliates, their
officers, employees and agents from and against all losses, damages, expenses
(including attorneys' fees and costs), claims, suits and liabilities, whether
based in contract or tort (including strict liability), to the extent arising
out of our resulting from (a) Supplier's acts or omissions, or those of persons
furnished by it, (b) any defective Goods provided hereunder, (c) the failure of
Supplier or any Goods to fully comply with the terms and conditions of this
Agreement, or (d) assertions under Workers' Compensation or similar laws made by
persons furnished by Supplier. Buyer shall promptly notify Supplier of any
written claim or demand for which Supplier is responsible under this Clause.
Without limiting the generality of the foregoing, to the extent that any
services are performed in the State of Ohio it is expressly agreed that Supplier
hereby waives any immunity from its obligations to defend, indemnify and hold
harmless Buyer (or The Ohio Xxxx Telephone Company) against and from claims by
employees of Supplier, which immunity would otherwise arise by operation of Ohio
Revised Code (S)(S)4123.74 and 4123.741 and Section 35, Article II, Ohio
Constitution or any other statute or constitutional provision.
INFRINGEMENT
------------
Supplier shall defend, indemnify and hold harmless Buyer and its Affiliates,
their officers, employees and agents from and against any suits, claims,
actions, losses, damages, expenses (including attorneys' fees and costs) or
liabilities that may result by reason of any alleged violation, infringement or
misappropriation of a United States patent, trade secret, copyright, trademark
or other proprietary right based on Buyer's use of the Goods (including the
receipt of any services) provided under this Agreement. Buyer shall promptly
notify Supplier of any claim of infringement, violation or misappropriation for
which Supplier is responsible and shall cooperate with Supplier to facilitate
the defense or settlement of such claim. Supplier or Supplier's attorney(s)
shall keep Buyer reasonably apprised of the continuing status of the claim,
including any lawsuit resulting therefrom, and shall permit Buyer, upon Buyer's
written request, to participate in the defense or settlement of such claim.
If use of the Goods shall be prevented or appears likely to be prevented by
court order or settlement resulting from any such claim, Supplier shall, at its
expense, either: (a) by license or release from claim of violation, infringement
or misappropriation, procure for Buyer and/or the Affiliates the right to
continue using the Goods; or (b) modify Goods so that they are functionally
equivalent to the original Goods but are no longer subject to a claim of
violation, infringement or misappropriation; or (c) remove such Goods from the
premises of Buyer and/or the Affiliates and replace same with equally suitable
goods free from claim of infringement or misappropriation; or (d) terminate this
Agreement and refund the full purchase price of the Goods if said action occurs
within (2) years of the Delivery Date of affected Goods, or if action takes
place after two (2) years of the Delivery Date, refund the purchase price of the
Goods, as depreciated over a three (3) year period. Unless otherwise agreed in
writing by Buyer, Supplier shall use its best efforts to procure the right for
Buyer and/or the Affiliates to use the Goods as provided in (a) above.
INSURANCE
---------
Supplier shall maintain during the term or, this Agreement: (a) Workers
Compensation insurance as prescribed by the law of the state in which Supplier's
obligations under this Agreement are performed, (b) Employer's Liability
insurance with limits of at least $2,000,000 for each occurrence, (c) Commercial
General Liability insurance (including, but not limited to, contractual and
products liability coverage) with combined single limits for each occurrence of
at least $2,000,000, and (d) if the use of motor vehicles is required,
Commercial Automobile Liability Insurance (including hired and non-owned
coverage) with combined single limits for each occurrence of at least $2,000,000
for bodily injury and property damage. Neither Supplier nor Supplier's
insurer(s) shall have a claim, right of action or right of subrogation against
Buyer based on any occurrence insured against, in whole or in part, under the
foregoing insurance. Supplier's policy shall be endorsed to name __________
_______________________ and its corporate Affiliates as additional insureds
and state: "____________________________________ is to be notified in writing
at least sixty (60) days prior to cancellation of or any material change in this
policy." At Buyer's request, Supplier shall furnish a copy of the endorsement
and certificates evidencing the foregoing insurance coverage prior to
commencement of performance hereunder
and, if applicable, annually thereafter during the term of this Agreement.
Supplier's purchase of insurance shall not in any way limit Supplier's liability
under this Agreement.
INVOICES
--------
Supplier shall render an invoice for each shipment of Goods. Invoices must
contain the following information: invoice number, invoice date, remittance
address, Purchase Order number, item number, payment terms, quantity,
description of Goods, unit, unit price and total price. Invoices shall be sent
to the address indicated in the Purchase Order.
LICENSES
--------
Supplier hereby grants Buyer a non-exclusive, non-transferable (except as set
forth in the Sections entitled "Assignment" and "Licenses") license, without
rights to sublicense, to use the software embedded in the Goods ("Software"),
but only in connection with the operation of Goods. The Buyer shall not (i) copy
or use the Software except as expressly permitted herein, (ii) reproduce,
modify, or create derivative works of the Software, (iii) reverse engineer,
decompile, disassemble, or make any attempt to discover the source code of the
Software, or (iv) use or permit the Software to be used outside of the states
where Buyer provides wireless services and has a direct distribution channel.
The Buyer and any successor to the Buyer's title to the Goods shall have the
right to assign legal title to such Goods and to those rights in the Software
granted by this Section to any other person who subsequently acquires the right
to use the Goods, provided that any such assignee or sub-licensee agrees, in
writing or via electronic mail or other computer transmission, to abide by the
terms and conditions of this Agreement; provided, that Buyer shall not be
responsible for procuring such agreement of the assignee or sub-licensee.
No other licenses, express or implied, under any patents, trademarks, copyrights
or other proprietary rights are granted by Buyer to Supplier or by Supplier to
Buyer under this Agreement.
LIMITATION ON LIABILITY
-----------------------
In no event shall either party be liable to the other party for any lost profits
or indirect, incidental, special or consequential damages, regardless of whether
or not a party has been advised of the possibility of such damages. The
foregoing notwithstanding, nothing in this section will limit a party's
obligations to indemnify fully the other under the sections of this Agreement
entitled "Indemnity" and "Infringement" for actions brought by third parties,
even if such actions include claims for indirect, incidental, special or
consequential damages. Except for the Indemnity and Infringement sections of
this Agreement, Supplier's liability arising under this Agreement shall not
exceed the aggregate payments received by Supplier from Buyer under this
Agreement.
MINORITY/WOMEN OWNED ENTERPRISES
--------------------------------
It is Ameritech's policy that minority and women owned business enterprises
should have the maximum opportunity to participate in the performance of its
contracts. Supplier shall use commercially reasonable efforts to further this
policy by awarding subcontracts to minority and women owned business enterprises
or by using such enterprises to provide goods and services incidental to this
Agreement, with a goal of awarding at least five percent (5%) of the contract
price to such enterprises. Upon request, Supplier shall furnish appropriate
information about its efforts to achieve this goal, including the identities of
such enterprises and amounts involved.
MOST FAVORED CUSTOMER
---------------------
Supplier warrants that the prices for Goods provided to Buyer under this
Agreement and the terms and conditions of this Agreement are not and shall not
be less favorable than the prices and/or terms and conditions extended to any of
Supplier's other customers generally similarly situated to Buyer with respect to
the same or like goods. In the event Supplier offers, during the term of this
Agreement, lower prices and/or more favorable terms and conditions to any such
customer with respect to the same or like goods than are offered to Buyer,
Supplier shall, retroactive to the date Supplier offered more favorable prices,
terms or conditions to any other customer, reduce the prices hereof
correspondingly and/or shall extend such terms and conditions to Buyer. Any
amounts charged to Buyer in excess of prices charged by Supplier to any other
customer for similar Goods or related services shall promptly be refunded or
credited to Buyer by Supplier.
NONEXCLUSIVITY
--------------
This Agreement does not grant to Supplier any exclusive right or privilege to
provide to Buyer goods of the type contemplated herein, and Buyer reserves the
right to contract with other parties for the procurement of comparable goods.
NONWAIVER
---------
Failure of either party to insist on performance of any term or condition of
this Agreement or to exercise any right or privilege hereunder shall not be
construed as a waiver of such term, condition, right or privilege in the future.
NOTICES
-------
Any notice which under the terms of this Agreement must or may be given or made
by either party hereunder shall be in writing and shall be delivered personally
or sent by express delivery service or by certified mail, return receipt
requested, addressed to the respective parties as follows:
To Buyer:
with a copy to:
To Supplier: @Road, Inc.
00000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx- Vice President
with a copy to: Venture Law Group
Attn: Tae Xxx Xxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
or to such other address as either party shall designate by proper notice.
Notices will be deemed to have been received as of the earlier of the date of
actual receipt or, in case of notices sent via US mall, three (3) days after
mailing. A signed receipt shall be obtained where a notice is delivered in
person.
OFFSET
------
Buyer's obligations under this Agreement shall be subject to deduction of any
valid claim of Buyer against Supplier arising from this or any other
transaction. Buyer shall not be obligated to make payments required hereunder to
the extent and for the duration that such payments are in dispute. Supplier
shall be deemed to have acknowledged and accepted the validity, of any claim if
it does not notify Buyer that it disputes such claim and also specifies with
particularity its reasons therefor within thirty (30) days from the date it
receives notice or knowledge thereof.
ORDERS
------
Purchase Orders shall be subject to all the terms and conditions of this
Agreement, and any terms and conditions on a Purchase Order which conflict with
the terms and conditions of this Agreement shall be deemed superseded and
deleted. Orders for Goods placed hereunder shall be either placed on Buyer's
Purchase Order form or, to the extent agreed upon by the parties, transmitted
electronically in accordance with such agreement of the parties. For Purchase
Orders transmitted electronically, Supplier shall make confirmation thereof in
the manner specified by Buyer and shall retain the Purchase Order transmission
for six (6) months from the fulfillment of such Purchase Order. No Purchase
Order shall be binding upon Supplier until Supplier accepts such Purchase Order
in writing.
PAYMENT
-------
All invoices are payable within forty-five (45) days of the date of Buyer's
receipt of the invoice; provided, that if Buyer disputes an invoice, Buyer shall
pay the undisputed portion within forty-five (45) days of receipt, and shall not
be obligated to pay the disputed portion until the parties have agreed on the
amount to be paid by Buyer. Supplier shall provide Buyer with documentation
evidencing the basis for charges in a form and level of detail satisfactory to
Buyer. The purchase price does not include any sales or use taxes nor any
duties, import levies or similar taxes that may be assessed against the Goods in
connection with this Agreement. The Buyer shall pay all sales or use taxes,
duties or import levies, if any are required to be paid on account of this
Agreement, which are imposed by the states (or subdivisions thereof), countries
or other governmental entities in which the applicable Goods are to be
installed. All amounts which are not paid by the Buyer as required by this
Agreement may be subject to a late charge equal to one percent (1.0%) per month
(or, if less, the maximum amount allowed by applicable law).
PRICE PROTECTION
----------------
Supplier may not increase the prices for Goods, as specified in this Agreement,
for a period of six (6) months from the Effective Date. Thereafter, Supplier
may, provided that sufficient supporting documentation is furnished to Buyer,
increase its prices no more than five percent (5%) once per any six (6) month
period. If Supplier intends to increase prices pursuant to this Section, then
Supplier must notify Buyer in writing no less than forty-five (45) days prior to
the effective date of such price increase.
Should Supplier decrease the purchase price for Goods, Supplier will give Buyer
a credit for the difference between the purchase price paid by Buyer and the new
reduced purchase price for Goods remaining in inventory held by Buyer in its
distribution channels.
PUBLICITY
---------
Supplier shall not identify, either expressly or by implication, Buyer or its
Affiliates or use any of their trademarks, trade names, service marks, other
proprietary marks, or reference this Agreement in any advertising, press
releases, publicity matters or other promotional materials without the prior
written permission of Buyer.
RELATIONSHIP OF THE PARTIES
---------------------------
A. This Agreement is not intended to and does not constitute, or give rise to,
a joint venture, partnership, corporation, or other formal business
association or organization of any kind between the parties, and the rights
and the obligations of the parties shall be only those expressly set forth
in this Agreement. The parties shall perform under this Agreement as
independent contractors and not as a representative, employee, agent, or
partner of the other party, and this Agreement shall not be construed as
creating any relationship between Buyer and Supplier's employees.
B. Except where the context would require a different meaning, all references
to a party or the parties include as applicable each of their respective
parent companies, subsidiaries, affiliates and its and their directors,
officers, shareholders, employees, agents, successors, beneficiaries,
permitted assigns, legal representatives, general and limited partners, and
subcontractors; provided, however, that except as may be required by law,
all obligations and liabilities arising under this Agreement shall not be
individual or personal, but shall be borne by each party solely and only to
the extent of its legal capacity.
REMEDIES
--------
The rights and remedies herein provided shall be cumulative and shall be in
addition to any other remedies available at law or in equity, except as
otherwise expressly limited or excluded by this Agreement.
SEVERABILITY
------------
If any provision of this Agreement shall be held invalid or unenforceable, such
provision shall be deemed deleted from this Agreement and replaced by a valid
and enforceable provision which so far as possible achieves the same economic
and other benefits for the parties as the severed provision was intended to
achieve, and the remaining provisions of this Agreement shall continue in full
force and effect.
SHIPPING
--------
All Goods shall be packed, marked and shipped by Supplier, at no additional
charge, in containers which are suitable for prevention of damage under normal
handling during loading/unloading, shipping and storage and in accordance with
the requirements of the carrier and the commercially reasonable specifications
of Buyer. Supplier shall ship the Goods in the quantities and at the times
specified by Buyer in accordance with the routing instructions given by Buyer
and accepted by the Supplier. Supplier shall combine all shipments made on the
same day to the same destination and shall xxxx the shipping label with the
destination exactly as shown in the corresponding Purchase Order. The Purchase
Order number shall be marked on all packages, shipping papers and other
subordinate documents.
A packing memorandum must accompany each shipment and the package containing
such memorandum must be clearly identified. The packing memorandum must contain
the following information: shipping destination, date shipped, Purchase Order
number, item number, description of Goods, quantity ordered, quantity shipped,
number of cartons, weight, carrier, and the xxxx of lading number.
SPECIFICATIONS FOR GOODS/WARRANTY
---------------------------------
The Supplier warrants to Buyer that the Goods shall perform in accordance with
the specifications set forth in Attachment C hereto for a period of (i) twelve
(12) months after the Goods are first used or (ii) eighteen months after the
Deliver Date, whichever period is shorter in duration (the "Warranty Period").
The Buyer will have the right to emend the Warranty Period
for an additional two (2) years by paying the fee, for each unit purchased
hereunder, set forth on Attachment A hereto. In addition, Supplier warrants that
any version of the Software shall properly perform Year 2000 Processing. "Year
2000 Processing" means processing by the Software, which is dependent upon usage
of calendar dates, including dates on or after January 1, 2000. Year 2000
Processing includes both software owned by Supplier and third party software
provided by Supplier that manages and/or manipulates data involving dates,
including single century formulas and multi-century formulas. Correct or proper
Year 2000 Processing means that the Software will not cause an abnormally ending
dating scenario within the application or result in incorrect values generated
involving such dates.
Except for breach of the Year 2000 Processing warranty, which is addressed in
the Section entitled Year 2000 Capability, if buyer notifies Supplier of any
breach of the warranty set forth in this Section during the Warranty Period (if
applicable), and if Supplier, which shall act reasonably and in good faith in
its inspection of all returned Goods, confirms such defect, Supplier's exclusive
liability, and the exclusive remedy of Buyer shall be, at Supplier's
commercially reasonable discretion, repair or replacement of the Goods at no
cost to Buyer. The Buyer may reject such Goods by notifying Supplier in waiting
of such rejection and requesting an RMA number; provided, that such written
notification and request for an RMA number must be received by Supplier during
the Warranty Period (if applicable). Within ten (10) days of receipt of the RMA
number, Buyer shall return the defective Goods to Supplier, insured and with
transportation prepaid, with a written description of the defect. The limited
warranties set forth in this Section shall not apply if (i) the Goods have been
materially altered or modified, (ii) the Goods have been subjected to
negligence by Buyer, computer or electrical malfunction, or (iii) the Goods have
been used, adjusted, installed, maintained, or operated other than in accordance
with instructions furnished by Supplier, or with an application or in an
environment other than that recommended by Supplier.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, SUPPLIER PROVIDES NO WARRANTY,
EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO
ALL MATERIALS AND SERVICES PROVIDED TO BUYER.
SURVIVAL OF OBLIGATIONS
-----------------------
The parties' obligations under this Agreement which by their nature are intended
to continue beyond the termination or expiration of this Agreement (including
without limitation all payment obligations incurred prior to such termination or
expiration) shall survive the termination or expiration of this Agreement.
SUSPENSION OF PERFORMANCE
-------------------------
If bankruptcy proceedings are commenced with respect to Supplier and if this
Agreement has not been otherwise terminated, then Buyer may suspend all future
performance of this Agreement and/or any Purchase Order(s) hereunder until
Supplier assumes and provides adequate assurance of future performance or
rejects this Agreement or such Order(s) pursuant to (S)365 of the
Bankruptcy Code or any successor provision. Any such suspension of further
performance by Buyer pending Supplier's assumption or rejection will not be a
breach of this Agreement and/or any Purchase Order(s) and will not affect
Buyer's right to pursue or enforce any of its rights under this Agreement or
such Order(s) or otherwise.
TAXES
-----
Federal manufacturers or retailers excise taxes, and state and local sales or
use taxes, when applicable, shall be billed as separate items on Supplier's
invoice. If indicated in the Purchase Order, Goods purchased for resale are tax
exempt under one of the following tax exempt certificate numbers: Ohio: 99-
014808; Wisconsin: UT03161; Missouri: 12161080; Illinois: 1712-1582; Indiana:
0034035640012; Michigan: ME0102812.
TERMINATION
-----------
Buyer may at any time and for any or no reason terminate this Agreement and/or
any Purchase Order(s), in whole or in part, by giving sixty (60) days written
notice to Supplier. Buyer's liability, to Supplier shall be limited to payment
for Goods which are ordered by Buyer prior to the effective date of termination
of this Agreement.
YEAR 2000 CAPABILITY
--------------------
Supplier warrants that any version of the Software shall properly perform Year
2000 Processing. In the event of a breach of this warranty, Supplier agrees to
promptly remedy such breach at no additional charge to Ameritech by: (i)
correcting the version of the Software currently used by Ameritech so as to make
it capable of correctly performing Year 2000 Processing; (ii) providing
replacement Software for the Software which is equivalent in function to the
Software and which correctly performs Year 2000 Processing. If, after using best
efforts Supplier is unable to accomplish either of the foregoing options within
ninety (90) days of Buyer's notification to Supplier of any failure of the
Software to correctly perform Year 2000 Processing, Supplier shall indemnify and
hold Buyer harmless from and against any and all liability, loss, or expense
awarded by final judgement against Buyer arising from any third party claims
which alleges damages to the Software. Notwithstanding anything to the contrary
set forth in this agreement, Supplier's breach of this warranty, shall not be
subject to any provisions regarding limitations of Supplier's liability set
forth in this Agreement.
[Signature page(s) and Exhibits follow]
@ROAD, INC.
Signature: /s/ Xxxx Xxxxx Signature: /s/
-------------------------- ---------------------------
Printed Name: Xxxx Xxxxx Printed Name:
----------------------- -----------------------
Title: VP Business Development Title:
------------------------------ -------------------------------
Date: 8/9/1999 Date: 8/31/99
------------------------------ -------------------------------
ATTACHMENT A
PRICES
------
Pricing
Part Number Item Description [**] [**]
-------------------------------------------------------------------------------
RC-10 In-Vehicle GPS/CDPD Unit [**] [**]
RC-10-2Y* In-Vehicle GPS/CDPD Unit [**] [**]
A-GPS-M GPS Magnetic Mount Antenna [**] [**]
A-GPS-M-2Y* GPS Magnetic Mount Antenna [**] [**]
DU-10 Message Display Terminal [**] [**]
DU-10-2Y* Message Display Terminal [**] [**]
A-GPS/CELL-R Roof Mount GPS/Cellular Antenna [**] [**]
C-RC10-PA RC-10 Cigarette Lighter Adapter [**] [**]
C-RC10-P RC-10 Power Cable [**] [**]
C-RC10-S RC-10 Serial Programming Cable [**] [**]
C-DU10 RC-10/DU10 Connector Cable [**] [**]
W-EXTENDED-1Y RC-10 1 Year Extended Warranty [**] [**]
W-EXTENDED-2Y RC-10 2 Year Extended Warranty [**] [**]
Notes:
RC-10 and RC-10-2Y Unit Prices include power cable, Part# C-RC10-P only.
Antennas sold separately.
DU-10 and DU10-2Y Unit Prices include connection cable to RC-10, Part #C-DU10.
*Unit Price requires 2 Year @Road Service Commitment.
** CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
ATTACHMENT B
NONDISCRIMINATION PROVISIONS
----------------------------
During the performance of this Agreement, Contractor agrees to comply with
the following provisions, to the full extent that this Agreement is subject to
the applicable provisions of the following: Executive Order Xx. 00000, Xxxxxxxxx
Xxxxx Xx. 00000, Executive Order No. 12138, Section 503 of the Rehabilitation
Act of 1973, the Vietnam-Era Veteran's Readjustment Assistance Act of 1974, the
Illinois Human Rights Act, the Indiana Civil Rights Law, the Michigan Civil
Rights Act, the Ohio Fair Employment Practice Law, the Wisconsin Fair Employment
Act, the rules, regulations and relevant orders of the agencies enforcing said
Orders and Statutes or charged with administering affirmative action/non-
discrimination requirements applicable to government contractors or
subcontractors, and any other applicable Federal, State, or local law imposing
obligations on government contractors or subcontractors.
Monetary amounts, contractual or purchasing relationships, and/or the
number of Contractor's employees, determine which provisions are applicable.
CLAUSES REQUIRED BY FEDERAL LAW
-------------------------------
The following clauses are deemed part of this Agreement in accordance with
the table set forth below.
Annual Clauses
------------------------------------------------
Contract Value 1 2 3 4 5 6
-----------------------------------------------------------------------
Less than $2,500 X(a) X(a) X(b)
$2,500 or more X(a) X(a) X(b) X
$10,000 or more X X X(b) X X
$50,000 or more X X X(c) X(d) X X
(a) Applies only to depositories of government funds or financial
institutions issuing U. S. savings bonds and notes.
(b) Applies only to depositories of government funds or financial
institutions issuing U. S. savings bonds and notes and which have 50
or more employees and are prime contractors or first-tier
subcontractors.
(c) Applies only to businesses having 50 or more employees.
(d) Applies only to businesses having 50 or more employees and which are
prime contractors or first-tier subcontractors.
Clause 1: Equal Employment Opportunity
The Equal Employment Opportunity Clause set forth in (S) 202 of Executive
Order 11246 and reiterated at 41 C.F.R. (S) 60-1.4(a), is hereby
incorporated by reference pursuant to 41 C.F.R. (S) 60-1.4 (d).
Clause 2: Certification of Non-Segregated Facilities
The Contractor certifies that it does not and will not maintain any
facilities it provides for its employees in a segregated manner, or
permit its employees to perform their services at any location under its
control, where segregated facilities are maintained; and that it will
obtain a similar certification, prior to the award of any nonexempt
subcontract.
Clause 3: Certification of Affirmative Action Programs
The Contractor affirms that it has developed and is maintaining
Affirmative Action Plans as required by Parts 60-2, 60-250 and 60-741 of
Title 41 of the Code of Federal Regulations.
Clause 4: Certification of Filing of Employers Information Reports
The Contractor agrees to file annually on or before the 31st day of March
complete and accurate reports of Standard Form 100 (EEO-I) or such forms
as may be promulgated in its place.
Clause 5: Employment of Veterans
The Affirmative Action for Disabled Veterans and Veterans of The Vietnam
Era Clause, set forth in 41 X.XX. (S) 60-250.4 is hereby incorporated by
reference pursuant to 41 C.F.R. (S) 60-250.22.
Clause 6: Employment of the Handicapped
The Affirmative Action Clause for Handicapped Workers set forth at 4l
C.F.R. (S) 60-741.4 is hereby incorporated by reference pursuant to 41
C.F.R. (S) 60-741.22.
ADDITIONAL FEDERAL CLAUSES
--------------------------
If this Agreement offers further subcontracting opportunities, the
following clause is hereby made a material term of this Agreement:
Utilization of Small Business Concerns and Small Disadvantaged Business
Concerns (Feb. 1990)
(a) It is the policy of the United States that small business concerns and
small business concerns owned and controlled by socially and economically
disadvantaged individuals shall have the maximum practicable opportunity to
participate in performing contracts let by any Federal agency, including
contracts and subcontracts for subsystems, assemblies, components, and related
services for major systems. It is further the policy of the United States that
its prime contractors establish procedures to ensure the timely payment of
amounts due pursuant to the terms of their subcontracts with small business
concerns and small business concerns owned and controlled by socially and
economically disadvantaged individuals.
(b) Contractor hereby agrees to carry out this policy in the awarding of
subcontracts to the fullest extent consistent with efficient contract
performance. Contractor further agrees to cooperate in any studies or surveys as
may be conducted by the United States Small Business Administration or the
awarding agency of the United States as may be necessary to determine the extent
of Contractor's compliance with this clause.
(c) As used in this contract, the term "small business concern" shall mean
a small business as defined pursuant to Section 3 of the Small Business Act and
relevant regulations promulgated pursuant thereto. The term "small business
concern owned and controlled by socially and economically disadvantaged
individuals" shall mean a small business concern.
(1) which is at least 51 percent unconditionally owned by one or more
socially and economically disadvantaged individuals; or, in the case of any
publicly owned business, at least 51 percent of the stock of which is
unconditionally owned by one or more socially and economically disadvantaged
individuals; and
(2) whose management and daily business operations are controlled by
one or more of such individuals. This term also means a small business concern
that is at least 51 percent unconditionally owned by an economically
disadvantaged Indian tribe or Native Hawaiian organization, or a publicly owned
business having at least 51 percent of its stock unconditionally owned by one of
these entities which has its management and daily business controlled by members
of an economically disadvantaged Indian tribe or a Native Hawaiian organization,
and which meets the requirements of 13 C.F.R. Part 124. The Contractor shall
presume that socially and economically disadvantaged individuals include Black
Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans,
Subcontinent Asian Americans, and other minorities, or any other individual
found to be disadvantaged by the Administration pursuant to Section 8(a) of the
Small Business Act. The Supplier shall presume that socially and economically
disadvantaged entities also include Indian Tribes and Native Hawaiian
organizations.
(d) Contractors acting in good faith may rely on written representations
by their subcontractors regarding their status as either a small business
concern or a small business concern owned and controlled by socially and
economically disadvantaged individuals.
SMALL BUSINESS/DISADVANTAGED BUSINESS PLAN CLAUSE
-------------------------------------------------
If the value of the goods or services to be provided by Contractor under
this Agreement is $500,000 or more, Contractor further agrees that it shall
adopt a Small Business and Small Disadvantaged Business Subcontracting Plan as
described in the clause set forth at Part 1, Section 52.219-9 of Title 48 of the
Code of Federal Regulations.
STATE CLAUSES
-------------
If this Agreement relates to services to be performed for the State of
Illinois, its political subdivisions, or any municipal corporation within the
State of Illinois, the Equal Employment
Opportunity clause set forth at 44 III. Adm. Code (S) 750, Appendix A shall be
deemed incorporated herein by reference pursuant to the language thereof.
If this Agreement relates to services to be performed for the State of
Michigan or its political subdivisions, the value of the contract is at least
$5,000, and Contractor has at least three (3) employees, the Non-discrimination
Clause for All-State Contractors adopted by the State Administrative Board on
January 17, 1967, as amended, shall be deemed incorporated herein by reference
pursuant to the language thereof.
ATTACHMENT C
SPECIFICATIONS
--------------
@ROAD'S FLEET MANAGEMENT SOLUTION. The Goods operate exclusively as components
---------------------------------
of Supplier's Internet-based Fleet Management solution known as @Road
1. APPLICATIONS: Xxxxxx.xxx currently includes an Automatic Vehicle Location
------------
(AVL) application and an optional integrated 2-Way Messaging (Dispatch)
application ("Applications").
------------
2. OPERATION OF APPLICATIONS: The Applications are administered, web-hosted,
-------------------------
and operated by Supplier. Supplier is responsible for debugging the Applications
and regularly updating the Applications.
3. THIRD PARTY APPLICATIONS: Buyer acknowledges that Goods may not operate in
------------------------
conjunction with hardware accessories from third parties or support software
applications from third parties.
4. INTERNET BASED APPLICATION: Buyer acknowledges Supplier's application is
--------------------------
Interact based. Thus, the data of customers of Buyer who obtain Goods from Buyer
solely for such customers' internal business use, and not for further
distribution or resale ("End Users") is potentially susceptible to security
---------
breaches by third parties. The Applications utilize passwords to limit data
access to authorized End Users. However, this does not guarantee data security.
Thus Buyer will inform End Users of potential data security issues and Buyer and
End Users will hold Supplier harmless from any such data security breaches.
5. SUBSCRIBER SOFTWARE LICENSE AGREEMENT: Before the first use of the
-------------------------------------
Applications, End Users will be required to accept an on-line electronic
software license agreement. The text of the agreement will be available on-line.
6. EQUIPMENT SALE ONLY: Notwithstanding anything to the contrary in this
-------------------
Agreement, the Supplier shall have no obligation to provide the @Road service to
Buyer or to End Users hereunder. Any provision of the @Road service shall be set
forth in a separate agreement between Buyer and Supplier.
The following form of agreements have been entered into between the Registrant
and the following parties:
Ameritech Mobile (Wireless) Communications, Inc.
Ameritech Mobile Communications, Inc.
Ameritech Mobile Phone Service of Illinois, Inc. and Ameritech Mobile Phone
Service of Chicago, Inc.
Cybertel Corporation
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
WIRELESS NETWORK SERVICES AGREEMENT
This Services Agreement ("Agreement") is made as of July 15 1999, by and
between @Road, Inc., hereafter referred to as "@Road", a California corporation
with a principal place of business at 00000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxx, XX
00000, and _____________
WITNESSETH:
WHEREAS, Buyer desires to have @Road provide certain wireless data service
bureau operations and sales, marketing and technical support in the pursuit of
Buyer's business; and
WHEREAS, @Road has experience with providing networking and wireless data
operations and is prepared to provide to Buyer the services hereafter referred
to as the "Services" and described in Exhibit A, "Description of Services."
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the sufficiency of which is hereby acknowledged, the parties
agree as follows:
Section 1. Definitions
The terms defined in this Section I and any other capitalized terms defined in
other sections of this Agreement shall have the meanings herein stated.
"Application Software" means the @Road software to be licensed to End Users
as part of the Services, as identified in Exhibit A.
"End User" means the customer of Buyer using the Services.
"Excusable Downtime" means of the Scheduled Uptime, the aggregate number of
hours in any month during which the Application Server is not actually
available to process transactions initiated by End Users due to (i) action
or inaction by Buyer, (ii) failure of any Application Software other than
Application Software developed internally by @Road, which failure is not
attributable to @Road's failure to exercise due care, (iii) failure of any
telecommunications facilities, which failure is not attributable to @Road's
failure to exercise due care, (iv) failure of any hardware other than the
Application Server, which failure is not attributable to @Road's failure to
exercise due care, (v) failure of any external services, which failure is
not attributable to @Road's failure to exercise due care, or (vi) a Force
Majeure Event (as defined in Section 15 of this Agreement), which failure
is not attributable to @Road's failure to exercise due care.
"Application Server" means the computer server operated by @Road upon which
the Application Software resides and operates.
"Peak Hours" means the hours during each day from 7:00 a.m. until 7:00 p.m.
Monday through Friday, Central Standard Time, excluding federal holidays.
"Non-Peak Hours" means the hours during each day that are not Peak Hours.
"Peak Hours Availability" means, for the Peak Hours, Service Uptime divided
by Scheduled Uptime less Excusable Downtime. For purposes of determining
whether @Road satisfies the Standards for Performance, Peak Hours
Availability will be measured based on a monthly average, to be calculated
once monthly within ten business days following the end of each calendar
month.
"Non-Peak Hours Availability" means, for the Non-Peak Hours, Service Uptime
divided by Scheduled Uptime less Excusable Downtime. For purposes of
determining whether @Road satisfies the Standards for Performance, Non-Peak
Hours Availability will be measured based on a monthly average, to be
calculated once monthly within ten business days following the end of each
calendar month.
"Purchase Agreement" means the purchase agreement the parties entered into
on July 15, 1999, pursuant to which agreement Buyer agrees to purchase, and
@Road agrees to sell to Buyer, certain equipment for use in connection with
the Services.
"Scheduled Downtime" means of the Peak Hours or Non-Peak Hours, as
applicable, the aggregate number of hours in any month during which the
Application Server is not actually available to process transactions
initiated by End Users due to such things as preventive maintenance, system
upgrades, etc. Scheduled Downtime must be mutually agreed to by the
parties.
"Scheduled Uptime" means of the Peak Hours or Non-Peak Hours, as
applicable, the aggregate number of hours in any month during which the
Application Server is scheduled to actually be available to process
transactions initiated by End Users.
"Service Uptime" means of the Peak Hours or Non-Peak Hours, as applicable,
the aggregate number of hours in any month during which the Application
Server is actually available to process transactions initiated by End
Users.
Other definitions are provided in the body of this Agreement.
Section 2. The Services
The services to be performed by @Road (the "Services") pursuant to this
Agreement are described in Exhibit A, "Description of Services," which is
incorporated into and forms a part of this Agreement. @Road will perform the
Services in a professional, workmanlike manner in compliance with all applicable
laws and regulations. The Services shall include the licensing of the
Application Software to End Users. The Services shall be provided for all
geographic territories where Buyer is presently or may in the future be licensed
to operate by the FCC.
Section 3. Fees
3.1 Charges for Services. For the Services described in Exhibit A, Buyer
shall compensate @Road in accordance with the terms of Exhibit B, "Service
Pricing," which is incorporated into and made a part of this Agreement.
3.2 Taxes. In the event that a sales, use, excise or services tax
(including any universal service assessment due to the FCC) is assessed on the
provision of the Services or on @Road's charges to Buyer under this Agreement,
however levied or assessed (but excluding any taxes based on @Road's income),
Buyer will be responsible to pay the amount of any such tax. Buyer will also be
responsible for paying any excise taxes for data communication lines and
circuits that Buyer is responsible for providing under this Agreement. The
parties agree to cooperate reasonably with each other to determine more
accurately each party's tax liability and to minimize such liability to the
extent legally permissible. Each party shall provide and make available to the
other any resale certificate, information regarding out-of-state sales or use of
equipment, materials or services, and other exemption certificates or
information reasonably requested by either party.
3.3 @Road warrants that the prices for Services provided under this
Agreement and the terms and conditions of this Agreement are not, and, during
the Term, shall not be less favorable, in the aggregate, than the prices and
terms and conditions extended to any of @Road's other customers, similarly
situated to Buyer, now or in the future, with respect to the identical
configuration of services described in Exhibit A. In the event @Road provides
the Services to any other customer, during the Term, at lower prices and on the
same or more favorable terms and conditions, in the aggregate, as are set forth
in this Agreement, @Road shall offer such aggregate terms and conditions
(including, without limitation, such prices) to Buyer, effective on the first
date on which the Services are provided to such other customer at the more
favorable prices and terms and conditions.
Section 4. Limited Use of Software Licenses
All rights, title and interest in the Application Software, including, without
limitation, all copyrights, shall be the sole property, of @Road. @Road shall
provide licenses to use the Application Software to the End Users and @Road
shall be solely responsible for procuring and enforcing such agreements. No
license, express or implied, is granted to Buyer with respect to the Application
Software, except to the limited extent necessary for Buyer to use demonstration
units provided by @Road to Buyer to resell Services delivered by @Road under
this Agreement. Such limited license shall terminate immediately upon the
expiration, termination or cancellation of this Agreement for any reason
whatsoever, except as set forth herein. For purposes of this Agreement, the
Application Software shall be deemed "Confidential Information."
Section 5. Term
This Agreement will commence on the date first written above and, unless
otherwise terminated pursuant to Section 6, will continue for twenty four (24)
months (the "Initial Term") unless
earlier terminated as provided below. Thereafter, the Agreement will be
automatically extended for additional twelve (12) month terms (each a "Renewal
Term") unless terminated by written notice from Buyer or @Road stating said
intent at least 120 days prior to the date of the termination of the Initial
Term or any Renewal Term. The Initial Term and the Renewal Terms may be
collectively referred to as the "Term."
Section 6. Termination
6.1 Termination by Buyer. Buyer may terminate this Agreement at any time upon
ninety (90) days prior written notice to @Road. Upon termination of this
Agreement under this Section 6.1, Buyer shall pay for @Road's reasonable
billable project related expenses incurred in rendering said Services to Buyer
up to the date of termination subject to Buyer's right to offset, if applicable.
Upon Buyer's request, @Road shall substantiate any amount due with proof
satisfactory to Buyer.
6.2 Termination for Cause. Upon written notice, either party may terminate this
Agreement in the event of a material breach by the other in addition to any
other remedies it may have. The party, seeking termination will provide the
other party with sufficient, reasonable written notice of such material breach
and the opportunity to cure same, as follows:
(a) at least thirty (30) days in the event of a failure to pay by Buyer any
amount due and payable under the Agreement when due, unless such deficiency
is cured within the notice period or unless such amount is part of a
Withheld Disputed Payment properly withheld in accordance with Section
12.2; and
(b) at least forty-five (45) days in the event of any other material
breach; provided, however, that if such breach cannot be cured within
forty-five (45) days, the non-breaching party may not terminate this
Agreement if the other party has made good faith efforts during such period
to implement a reasonable plan that is designed to cure the breach and is
continuing to diligently pursue the plan.
6.3 Termination for Insolvency. Upon written notice to the other party, this
Agreement may be terminated immediately by either party in the event the other
party (i) becomes insolvent, (ii) makes a general assignment for the benefit of
creditors, (iii) files a voluntary petition of bankruptcy, (iv) suffers or
permits the appointment of a receiver for its business or assets, (v) becomes
subject to any proceeding under any bankruptcy or insolvency law (unless such
proceeding is dismissed within thirty (30) days, in which case the written
notice of termination shall be ineffective), or (vi) has ceased to conduct its
business in the ordinary course.
6.4 Waiving Remedy. Either party may waive a remedy which inures to its benefit
and may, in addition, either (i) waive the underlying non-performance or breach,
or (ii) resort to its rights and remedies at law and equity; provided that such
waiver is in writing and specifically addresses the remedy being waived, and, if
applicable, the underlying non-performance or breach.
6.5 Providing Information. In order to enable Buyer to explain the reasons for,
and corrective steps taken to remedy a failure, malfunction, or degradation of
the Services to the appropriate regulatory agency, at Buyer's request, @Road
shall provide, at no additional cost, all necessary information to the extent
that @Road has prepared or received such information in the ordinary course of
its business. @Road shall also provide any additional information and assistance
as may be reasonably requested, including the provision of witnesses, and Buyer
shall reimburse @Road for all costs reasonably incurred by @Road in providing
such additional information and assistance.
6.6 Cumulative Remedies. The remedies set forth herein shall be cumulative and
may be exercised singularly and concurrently.
6.7 Survival. The rights and obligations of the parties as set forth in
Sections 6.5, 6.7, 7.4, 8, 9, 12, 13, 14, 15.5, 15.6, 15.12, and all payment
obligations incurred prior to the termination of this Agreement, shall survive
expiration or termination of this Agreement for any reason.
6.8 Termination of Purchase Agreement. Unless otherwise agreed upon by the
parties in writing, this Agreement will terminate upon the termination of the
Purchase Agreement.
Section 7. Representations and Warranties
7.1 Representations and Warranties by Buyer. Buyer represents and warrants that
Buyer:
(a) has full power and authority, to undertake the obligations set forth in
this Agreement and that it is not a party to any agreement, nor will it enter
into any other agreement, that would be breached by or that would prohibit it
from entering into or performing this Agreement; and
(b) shall comply in all respects with all applicable laws and regulations
affecting the subject matter hereof.
7.2 Representations and Warranties by @Road. @Road represents and warrants that
@Road:
(a) has full power and authority to undertake the obligations set forth in this
Agreement and that it is not a party to any agreement, nor will it enter into
any other agreement, that would be breached by or that would prohibit it from
entering into or performing this Agreement;
(b) shall comply in all respects with all applicable laws and regulations
affecting the subject matter hereof;
(c) is the lawful owner or has the full right and authority to provide or to
grant the use of the Services for Buyer and its End Users; and that the Services
are and shall be, at the time of delivery and throughout the Term, free and
clear of any liens and encumbrances; and
(d) will maintain in full force and effect all licenses and other agreements
with any third parties as necessary to provide the Services as identified in
Exhibit A.
7.3 Performance Representations and Warranties. @Road further represents and
warrants that:
(a) the Services, Application Software and all hardware and software necessary
to provide the Services shall perform in accordance with and meet the
requirements and Standards of Performance herein and in Exhibit A;
(b) any Services repaired or substituted under this Agreement shall be
warranted for the Term of the Agreement; and
(c) @Road shall perform the Services in a professional, workmanlike manner and
in accordance with the requirements set forth herein, including Exhibit A, and
that the Services will perform in accordance with the applicable documentation
for the Application Software.
7.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, @ROAD,
DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESSED OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES FOR:
(a) MERCHANTABILITY OR APPLICABILITY FOR A PARTICULAR PURPOSE;
(b) ANY SOFTWARE SECURITY FEATURES RELATING TO SECURITY OF THE END USER'S LINKS
TO THE SYSTEM AND INCLUDED IN THE APPLICATION SOFTWARE WHICH SECURITY FEATURES
ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. @ROAD EXPRESSLY DISCLAIMS
ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (TO THE EXTENT PERMITTED BY LAW),
AS TO ANY SUCH SECURITY FEATURES, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE;
(c) LAPSES OF SERVICE ARISING FROM CAUSES BEYOND THE DIRECT CONTROL OF @ROAD,
INCLUDING, WITHOUT LIMITATION, DEFECTS IN PRODUCTS OR SERVICES PROVIDED TO @ROAD
OR BUYER BY ANY THIRD PARTY VENDORS NOT UNDER CONTRACT WITH @ROAD;
(e) LAPSES IN SERVICE CAUSED BY EQUIPMENT ON BUYER'S PREMISES WHICH IS NOT
PROVIDED OR MAINTAINED BY @ROAD OR ITS AGENTS; OR
(f) LAPSES ASSOCIATED WITH ANY ACT OR OMISSION ON THE PART OF BUYER'S EMPLOYEES
OR AGENTS.
Section 8. Indemnification
8.1 Indemnification by @Road.
8.1.1 Scope of Indemnification. Subject to the provisions of Article 9 hereto,
@Road agrees to indemnify Buyer from any direct damages, liability or other
expenses (including, but not limited to, reasonable attorneys' fees and court
costs) incurred by Buyer and which arise out of or result from any claim, suit
or proceeding brought by a third party and based on (i) intentional wrongful
acts or willful misconduct of employees, contractors or agents of @Road; or (ii)
claims for injury to person or property caused by the negligence of employees,
contractors or agents of @Road.
8.1.2 Intellectual Property Indemnification. @Road shall defend, indemnify and
hold harmless Buyer from and against any claims, suits, loss, damage, cost
(including replacement cost), expense (including but not limited to reasonable
attorney's fees and costs) or liability that may result by reason of any claim
of infringement of any patent, copyright, trade secret, trade dress or trademark
rights or other proprietary right based on the performance and receipt of
Services provided to End Users and/or Buyer under this Agreement; provided
however, that such indemnification shall not apply to any claims which arise out
of or result from any infringement claim made by any person based upon any
combination of the Application Software with products of Buyer or another third
party, which combination is the basis for such claim and the Services would not
be infringing if used alone. Buyer shall promptly notify @Road of any claim of
infringement for which @Road is responsible hereunder and shall cooperate with
@Road to facilitate the defense of any such claim. If the use of the Services
shall be prevented or appears likely to be prevented by an injunction, court
order or settlement as a result of any such claim, @Road shall at its expense
use best efforts to either: (i) by license or release from claim of infringement
or misappropriation, procure for Buyer the right to continue using the Services
or, (ii) modify the Services so that they are functionally equivalent to the
original Services but are no longer subject to the claim of infringement or
misappropriation. In the event @Road cannot perform under either of the above
options, @Road shall refund to Buyer the full amount of any pre-payments for
discontinued Services paid for by Buyer but not provided by @Road prior to the
discontinuation of the Services.
8.1.3 Conditions for @Road's Indemnity, Obligations. @Road's obligations under
this section are subject to the following conditions and obligations of Buyer:
(1) Buyer agrees to notify @Road by certified mail, return receipt requested,
promptly upon receipt of written notice of any claim, suit, action or proceeding
identifying the Service, and for which Buyer may be entitled to indemnification
under this Agreement; (2) Buyer permits @Road to have the sole right to control
the defense and settlement of any such claim provided, that, @Road should keep
Buyer reasonably apprised of the continuing status of the claim, including any
lawsuit resulting therefrom, and shall permit Buyer, upon Buyers written
request, to participate, at Buyers expense, in the defense or settlement of such
claim, (3) Buyer provides reasonable assistance to @Road at @Road's expense, in
the defense of same, and (4) Buyer does not enter into any settlement agreement
or otherwise settle any such claim without @Road's express prior consent or
request.
8.2 Indemnification by Buyer.
8.2.1 Scope of Indemnification. Subject to the provisions of Article 9 hereto,
Buyer agrees to indemnify @Road from any direct damages, liability or other
expenses (including, but not limited to, reasonable attorneys' fees and court
costs) incurred by @Road and which arise out of or result from any claim, suit
or proceeding brought by a third party and based on (i) intentional wrongful
acts or willful misconduct of employees, contractors or agents of Buyer; (ii)
claims for injury to person or property caused by the negligence of employees,
contractors or agents of Buyer; (iii) representation of the Services by Buyer in
a manner materially inconsistent with @Road's application descriptions and
capabilities; (iv) other use or distribution of the Services by Buyer
inconsistent with the terms of this Agreement; or (v) any taxes for which Buyer
is responsible for paying under Section 3.2.
8.2.2 Conditions for Buyer's Indemnification Obligations. Buyer's obligations
under this section are subject to the following conditions and obligations of
@Road: (1) @Road agrees to notify Buyer by certified mail, return receipt
requested, promptly upon knowledge of any claim, suit, action or proceeding for
which it may be entitled to indemnification under this Agreement; (2) @Road
permits Buyer to have the sole right to control the defense and settlement of
any such claim provided, that, Buyer should keep @Road reasonably apprised of
the continuing status of the claim, including any lawsuit resulting therefrom,
and shall permit @Road, upon @Road's written request, to participate, at @Road's
expense, in the defense or settlement of such claim; (3) @Road provides
reasonable assistance to Buyer at Buyer's expense, in the defense of same; and
(4) @Road does not enter into any settlement agreement or otherwise settle any
such claim without Buyer's express prior consent or request.
8.3 Exclusive Remedy. The indemnification rights and remedies of each party
pursuant to Sections 8.1 and 8.2, collectively shall be the exclusive remedies
of such party against the other party with respect to the claims to which such
indemnification or remedies relate.
Section 9. Limitation of Liability and Damages
9.1 General. In no event will either party be liable for any indirect,
incidental, special or consequential damages of any kind or nature whatsoever,
suffered by the other party, any End User, customer, vendor or any distributor,
including, without limitation, lost profits, business interruptions, or other
economic loss arising out of the performance or non-performance hereunder or any
use of or failure to be able to use the Services.
9.2 Limitation of @Road's Liabilities.
(a) @Road assumes no liability for trademark infringements involving any
marking or branding of the Services by Buyer and not approved by @Road.
(b) With respect to any damages suffered by Buyer, any End User,
customer, vendor or any distributor arising out of, or based upon, the
failure of the Application Software, @Road's aggregate liability to Buyer
under this Agreement shall be limited to the aggregate of the charges
paid by Buyer under this Agreement.
(c) The provisions of Section 9.2 shall not apply to or in any way limit
@Road's indemnification obligations contained in Section 8.1.1 (i) or
8.1.2 above.
9.3 Limitation of Buyer's Liabilities. With respect to any damages suffered
by @Road, any End User, customer, vendor or any distributor arising out of, or
based upon this Agreement, Buyer's aggregate liability to @Road under this
Agreement shall be limited to the aggregate of the charges paid by Buyer under
this Agreement.
Section 10. Standards of Performance
10.1 Definition of Standards. The Standards of Performance and specifications
for the Service shall be defined as (i) Peak Hours Availability of 99.5% and
(ii) Non-Peak Hours Availability of 99.0%. Within ten (10) business days
following the end of each calendar month, @Road will report to Buyer measured
Peak Hours Service Availability and Non-Peak Hours Service Availability for the
preceding month. If the Standards of Performance are not met during such month,
@Road will identify the reasons for such failure to meet the Standards of
Performance, if known, and @Road and Buyer will use best efforts to mutually
agree upon an action plan to meet the Standards of Performance.
10.2 Substitute Service. The Standards of Performance are applicable to
replacement and substitute Services.
10.3 Written Notice. The Standards of Performance shall not be subject to
change or modification by either party without the prior written approval of the
other party.
10.4 System Maintenance. With the exception of emergencies, and subject to the
provisions of Exhibit A, all maintenance shall be scheduled upon agreement of
Buyer, shall be performed during Non-Peak Hours, and shall not be scheduled
without ten (10) days prior written notice to Buyer.
Section 11. Audit
11.1 By Buyer. Buyer shall have the right, with reasonable written notice to
@Road and at its expense, and subject to @Road's reasonable security rules, to
examine and audit, through a third party auditor reasonably acceptable to @Road,
any and all invoices and other records, regardless of form, created by @Road in
connection with any item billed by @Road to Buyer hereunder. @Road shall
maintain the foregoing records in accordance with generally accepted accounting
principles and retain the same for such period as may be required by law and, in
any event, not less than three (3) years from the issuance by @Road to Buyer of
the applicable xxxx. Any such audit shall be performed at Buyer's expense during
normal business hours; provided, that the cost of such audit (in addition to the
full amount of any underpayment) shall be promptly paid by @Road if such audit
reveals an overpayment by Buyer of more than five percent (5%) of the amounts
payable by Buyer to @Road in any six (6) month period.
11.2 By @Road. @Road shall have the right, with reasonable written notice to
Buyer and at its expense, and subject to Buyer's reasonable security rules, to
examine and audit, through a third party auditor reasonably acceptable to Buyer,
any and all invoices and other records, regardless of form, created by Buyer in
connection with the Services. Buyer shall maintain the foregoing records in
accordance with generally accepted accounting principles and retain the same for
such period as may be required by law and, in any event, not less than three (3)
years from the issuance by Buyer to @Road of the applicable xxxx. Any such audit
shall be performed at @Road's expense during normal business hours; provided,
that the cost of such audit (in addition to the full amount of any underpayment)
shall be promptly paid by Buyer if such audit reveals an underpayment by Buyer
of more than five percent (5%) of the amounts payable by Buyer to @Road in any
six (6) month period.
11.3 Confidentiality. All information obtained by either party during such
audits shall be treated as Confidential Information in accordance with this
Agreement.
Section 12. Disputes
12.1 Injunctive Relief. If either party, individually or in concert with any
other person, breaches, or threatens to commit a breach of the confidentiality
provisions of this Agreement, the other party shall have the right to receive
immediate injunctive relief against such actual or threatened breach, and the
party against whom such relief is sought shall not urge as a defense that there
is an adequate remedy at law. This provision shall not affect any party's right
to seek or defend against injunctive relief on any other issue.
12.2 Payment Disputes. In the event of a good faith dispute regarding the
amount of fees or other charges due to @Road hereunder, Buyer may, at its
option, withhold payment of such disputed amount (the "Withheld Disputed
Payment") provided that within thirty (30) days after the earliest due date for
any fees or charges included in each Withheld Disputed Payment, Buyer has
delivered in writing to @Road (i) notice of its intention to withhold payment;
and (ii) a clear and complete description of all issues in dispute relating to
the Withheld Disputed Payments.
Section 13 Publicity.
Neither @Road nor Buyer shall use the name or any of the trademarks of the other
party, or disclose in any of its advertising or other materials that the other
party is providing or receiving service hereunder without prior written consent
from the other. Specifically, each party shall submit to the other party all
advertising, sales promotion, press releases and other publicity matters
relating to the Service performed under this Agreement wherein the name or any
xxxx of the other party is mentioned, or language used from which the connection
of the other party's name or xxxx therewith may be inferred or implied. Each
party further agrees not to publish or use any such advertising, sales
promotion, press releases, or publicity, materials without the other party's
prior written approval. Each party shall respond in writing to a request for
approval within five (5) business days of receipt of the request. Approval shall
be deemed granted if no response is provided within such five (5) business day
period. Notwithstanding anything to the contrary set forth in this Section 14,
no prior submission to or approval by Buyer shall be
required in connection with the disclosure by @Road of the services provided in
the Agreement in any registration statement or report filed by @Road with the
Securities and Exchange Commission.
Section 14 Confidential Information
14.1 Any information, including but not limited to, specifications, drawings,
computer programs, technical or business information or other data in whatever
form (hereinafter "Information"), furnished by either party to the other,
whether in writing, orally or visually, under or in contemplation of this
Agreement or to which such party has access through its performance hereunder
shall be considered confidential and shall be subject to the following:
(a) The receiving party shall restrict disclosure of the information to
the receiving party's employees with a "need to know" (i.e., employees that
require the information to perform their responsibilities in connection with
this Agreement) and shall not disclose it to any other person or entity without
the prior written consent of the disclosing party;
(b) The receiving party shall use the information only for purposes of
performing under this Agreement;
(c) The receiving party shall advise those employees who access the
information of their obligations with respect thereto;
(d) The receiving party shall copy the Information only as necessary for
those employees who are entitled to receive it and shall ensure that all
confidentiality notices are reproduced in full on such copies; and
(e) The receiving party shall return all copies of such information to the
disclosing party at the disclosing party's request.
14.2 The receiving party recognizes and agrees that the unauthorized use or
disclosure of the information would cause irreparable harm to the disclosing
party for which it would have no adequate remedy at law, and that an actual or
contemplated breach of this Section shall entitle the disclosing party to obtain
immediate injunctive relief prohibiting such breach, in addition to any other
rights available to it. The obligations herein contained shall expressly survive
the termination or expiration of this Agreement.
14.3 The information shall not be considered confidential and shall not be
subject to the foregoing if the receiving party can demonstrate that the
information:
(a) Is or becomes available to the public through no breach of this
Agreement;
(b) Was previously known by the receiving party without any obligation to
hold it in confidence;
(c) Is received from a third party fee to disclose such information
without restriction;
(d) Is independently developed by the receiving party without the use of
the disclosing party's information;
(e) Is approved for release by written authorization of the disclosing
party, but only to the extent of such authorization;
(f) Is required by law or regulation to be disclosed, but only to the
extent and for purposes of such required disclosure; or
(g) Is disclosed in response to a valid order of a court or lawful
request of a governmental agency, but only to the extent of and for the purposes
of such order or request, provided that the receiving party first notifies the
disclosing party of the order or request ten (10) days prior to disclosure and
permits the disclosing party to seek an appropriate protective order.
14.4 Limitation. @Road will not be in breach of its obligations under this
Section 14 if disclosure occurs as a result of corruption, loss or mis-
transmission of data or for the security of data during transmission via public
telecommunications facilities, provided that @Road has complied with its
obligations under Section 14.1. This Agreement shall not preclude Buyer from,
and Buyer shall not be in breach of its obligations under this Section 14 by,
disclosing the performance specifications or capabilities of the Services in
marketing the Services to End Users and the general public.
14.5 Other. Buyer agrees that, subject to payment to Buyer of a reasonable
fee to be mutually agreed upon by the parties, @Road will have the right to use,
sell, and otherwise distribute the aggregated End User data and information;
provided, however, that @Road shall not under any circumstances disclose the
names or identities of the End User. Upon written request from Buyer, @Road
shall provide Buyer with the End User data and information in the form in which
it is maintained by @Road.
Section 15. Miscellaneous
15.1 Force Majeure. Neither Buyer nor @Road shall be liable to the other for
any delay or failure in performance hereunder (other than a failure to pay
monies) due to fires, strikes, other labor disputes, embargoes, requirements
imposed by governmental regulations, civil or military authorities, acts of God,
the public enemy or other causes which are beyond the reasonable control of the
party unable to perform (hereinafter "force majeure"), provided that causes or
impacts related to the arrival of the next millennium shall not be considered a
force majeure. If a force majeure occurs, the party delayed or unable to
perform shall give immediate notice to the other party and the other party may
terminate the Agreement if the force majeure remains in effect for more than 60
days.
15.2 Relationship of the Parties. Nothing in this Agreement shall be deemed
to constitute a partnership or joint venture between the parties, nor shall
either party be deemed the agent of the
other. This Agreement shall not be construed to create rights, expressed or
implied, on behalf of, or for the use of, any parties, aside from Buyer and
@Road; and, Buyer and @Road shall not be obligated, separately or jointly, to
any third parties or any third party beneficiaries by virtue of this Agreement.
Buyer acknowledges that @Road may perform services similar to the Services for
others and this Agreement shall not prevent @Road from providing such services.
@Road may perform its obligations through its affiliates or through the use of
agents, subcontractors or independent contractors; provided, however, that @Road
shall not be relieved of its obligations under this Agreement by use of such
affiliates or subcontractors.
15.3 Year 2000 Compliance. @Road warrants that all Services, shall be Year
2000 Compliant, as defined below. This warranty begins upon the performance of
the Service and shall continue during the term of this Agreement. Upon receiving
notice thereof, as Buyer's sole remedy under this Section 15.3, @Road shall
promptly correct any breach of this warranty, including correction of any
invalid data or information resulting therefrom. "Year 2000 Compliant" means
proper performance of any Service which is dependent upon or involves calendar
dates before, during and after the Year 2000, including both single century and
multi-century formulas, leap year capabilities and transition from the year 2000
to the year 2001. "Proper performance" means the Services will not cause an
abnormally ending scenario or generate incorrect values involving dates,
provided that all other hardware, software, firmware and other products used
with such Services properly exchange accurate date data with the Services.
15.4 Notices. Any notice which under the terms of this Agreement must or may
be given or made by any party hereunder shall be in writing and shall be
delivered personally or sent by express delivery service or by certified mail,
mail, return receipt requested, addressed to the respective parties as follows:
To Buyer:
with a copy to:
To @Road:
Xxxx Xxxxx
VP Business Development
@Road, Inc.
00000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
With a copy to:
Venture Law Group
Attn: Tae Xxx Xxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
or to such other addresses either party shall designate by proper notice.
Notices will be deemed to have been received as of the earlier of the date
actual receipt or, in case of notices sent via U.S. mail, three (3) days after
mailing. A signed receipt shall be obtained where a notice is delivered in
person.
15.5 Non-Waiver. No term or provision hereof shall be deemed waived or any
breach excused, unless such waiver or consent shall be in writing and signed by
the party claimed by the other to have waived or consented. Any consent by any
party, to, or waiver of, a breach by the other, whether express or implied,
shall not constitute a consent to, waiver of, or excuse for any other different
or subsequent breach.
15.6 Partial Invalidity. If any term or provision of this Agreement shall be
found to be illegal or unenforceable, then notwithstanding such illegality, or
unenforceability, this Agreement shall remain in full force and effect and such
term or provision shall be deemed to be restated to reflect the original
intentions of the parties as nearly as possible in accordance with applicable
law.
15.7 Headings. The headings used in this Agreement are for reference purposes
only and shall not be deemed a part of this Agreement. This Agreement was
drafted with the joint participation of both parties and shall be construed
neither against nor in favor of either, but rather in accordance with the fair
meaning thereof. In the event of any apparent conflicts of inconsistencies
between this Agreement or any Schedule or Exhibit, to the extent possible such
provisions shall be interpreted to make them consistent, and if such is not
possible, the provisions of this Agreement shall prevail.
15.8 Entire Agreement. This Agreement, and the Exhibits and Schedules hereto,
all of which are incorporated by this reference, constitute the entire agreement
and understanding between the parties with respect to its and their subject
matter and may not be contradicted by evidence of any prior or contemporaneous
oral or written agreement.
15.9 Amendment. This Agreement may be amended or supplemented only by a
writing that refers specifically to this Agreement and is signed by duly
authorized representatives of both
parties. Any terms and conditions varying from this Agreement and the Schedules
and Exhibits on any order or written notification from either party are void.
15.10 No Third Party Beneficiaries. The parties do not intend, nor will any
clause be interpreted, to create for any third party any obligations to or from
either @Road or Buyer hereunder.
15.11 Affiliates and Assigns. As used in this Agreement, the term
"Affiliates" shall include Ameritech Corporation and any business entity which
is, directly or indirectly, at least fifty percent (50%) owned by Ameritech
Corporation. "Affiliate" also means any successor to Ameritech Corporation,
whether by change of name, dissolution, merger, consolidation, reorganization or
otherwise. Neither party shall assign any right or obligation under this
Agreement without the other party's prior written consent which shall not be
unreasonably withheld provided, however, that either party shall have the right
to assign its rights, obligations and privileges hereunder to a merger partner,
successor in business, or acquirer of all or substantially all of such party's
stock, or equivalent equity securities business or assets without obtaining the
other party's consent to such assignment. Any other attempted assignment shall
be void, except that either party may assign moneys due or to become due to it,
provided that (a) the assigning party gives the other party at least thirty
(30) days prior written notice of such assignment and (b) such assignment does
not impose upon the other party obligations to the assignee other than the
payment of such moneys. Notwithstanding the foregoing, Buyer may assign this
Agreement, in whole or in part, to any of its Affiliates who agree in writing to
be bound by the terms and conditions of this Agreement. Upon such assignment and
assumption of liability thereto by the assignee the assignor shall be discharged
of any liability under this Agreement. Without limiting the generality of the
foregoing, this Agreement shall be binding upon and shall inure to the benefit
of the parties' respective successors and assigns.
15.12 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Illinois, as such laws are applied to
contracts which are entered into and performed entirely within the State of
Illinois.
15.13 Scope of Services. The Services provided under this Agreement are for
the benefit of Buyer and End Users located within the United States.
15.14 Nonperformance. To the extent any nonperformance by either party of its
obligations under this Agreement results from or is caused by the other party's
failure to perform its obligations under this Agreement, such nonperformance
shall be excused.
15.15 Limitation Period Upon Termination or Expiration. Neither party may
bring an action, regardless of form, arising out of this Agreement more than two
years after the cause of action has arisen or the date such cause of action was
or should have been discovered.
15.16 Insurance. @Road shall maintain during the term of this Agreement: (a)
Worker's Compensation insurance as prescribed by the law of the state in which
@Road's obligations under this Agreement are performed, (b) Employer's
Liability insurance with limits of at least $2,000,000 for each occurrence, (c)
Comprehensive General Liability insurance (including
contractual liability) with combined single limits for each occurrence of at
least $2,000,000, and (d) if the use of motor vehicles is required,
Comprehensive Automobile Liability insurance with combined single limits for
each occurrence of at least $2,000,000 for bodily injury and property damage.
Neither @Road nor @Road's insurer(s) shall have a claim, right of action or
right of subrogation against Buyer or its affiliates based on any loss or
liability insured against under the foregoing insurance. @Road's policy shall be
endorsed to name Ameritech Corporation and its affiliates as additional insureds
and shall contain a clause stating that: "_______________________________
is to be notified in writing at least sixty (60) days prior to cancellation of
or any material change in this policy." @Road shall furnish a copy of the
endorsement and certificates evidencing the foregoing insurance coverage prior
to commencement of Services hereunder. @Road's purchase of insurance shall not
in any way limit @Road's liability under this Agreement.
15.17 Counterparts. This Agreement may be executed in counterparts. Each such
counterpart shall be an original and together shall constitute but one and the
same document.
15.18 Mutual Cooperation. @Road and Buyer each will use commercially
reasonable efforts to achieve the objectives of this Agreement.
15.19 Nonexclusivity. This Agreement does not grant to @Road any exclusive
right or privilege to provide Services to Buyer of the type contemplated herein,
and Buyer reserves the right to contract with other parties for the procurement
of comparable services.
15.20 Billing Records. @Road shall maintain in accordance with generally
accepted accounting principles complete and accurate records related to amounts
billed to and payments made by Buyer hereunder including, but not limited to,
records reflecting all labor hours, travel, and out-of-pocket expenses incurred
in connection with @Road's performance hereunder. @Road shall provide Buyer
supporting documentation concerning any disputed invoice or payment within
thirty (30) days after Buyer notifies @Road of a dispute. Payments made under
this Agreement shall be subject to final adjustment as determined by such
review. @Road shall retain such records for a period of three (3) years from the
expiration of this Agreement or such length of time as may be required by any
federal, state or local law, ordinance or regulation, whichever is longer.
@ROAD, INC.
Signature: /s/ XXXX XXXXX Signature: /s/
----------------------- --------------------------
Printed Name: XXXX XXXXX Printed Name:
--------------------- -----------------------
Title: VP Business Development Title:
---------------------------- ------------------------------
Date: 8/9/1999 Date: 8/31/99
----------------------------- ------------------------------
EXHIBIT A
DESCRIPTION OF SERVICES
-----------------------
. Services Overview. @Road will provide data center service bureau
-----------------
operations, sales and marketing assistance, technical support and product
training as part of the Ameritech's offering of its Ameritech Vehicle Location
Service (VLS) to the End Users. This Description of Services ("DOS") will cover
in detail each aspect of the Services to be provided by @Road pursuant to the
Wireless Network Services Agreement. This DOS also describes each party's
responsibilities in relation to each other and to third parties whose software,
hardware and maintenance will be an integral part of this DOS. @Road shall
notify Ameritech in writing of the identity of any such third parties.
@Road will operate for Ameritech a specific software application ("@Road")
for providing a Vehicle Location Service ("VLS"). This software application
shall be the "Application Software." The VLS will consist of a computer server
that collects information from a combination radio modern/GPS receiver designed
specifically for use with the VLS. The VLS will allow End Users remote access to
the Application Software through an HTML browser running on a desktop computer
for viewing the vehicle locations and generating vehicle location reports.
@Road will provide components including data center facilities, internet
connectivity to the VLS Computer Server, Computer Server Hardware and
Application Software. The specific deliverables and responsibilities of the
parties are discussed in detail in the remainder of this DOS.
. Data Center Facilities. @Road will provide Data Center Facilities ("DCF")
----------------------
either directly or through a third party in which the VLS Computer Server and
Application Software will reside. The DCF will include, at a minimum, the
following;
. Diesel generator backup power
. Rack-amount equipment
. UPS power on each rack
. Secure, key card access to the building and separate key card
access to the facility
. A/C facilities separate and redundant from building system
. Internet Connection. The DCF and the Ameritech CDPD network will be
-------------------
connected via the internet.
. Hardware. @Road will supply a minimum of two Internet-connected routers
--------
within the DCF. They will be configured such that a failure of one of the
routers will still allow the other router to manage Internet data traffic.
. Facilities. @Road will provide rack space and UPS power for the @Road
----------
routers in the DCF along with space for any other ancillary equipment required
to provide Internet connectivity.
. Physical Installation. @Road or a third party contracted by @Road will
---------------------
perform all physical installation of equipment in the DCF.
. Network Provisioning. @Road will retain responsibility for the ongoing
--------------------
maintenance and service charges for the Internet connectivity to the DCF.
Ameritech will retain responsibility for the ongoing maintenance and service
charges for the Internet connectivity to the Ameritech CDPD network.
. Monitoring and Administration. @Road will provide 24 hour by 7 day
-----------------------------
monitoring of the routers in the DCF. Anytime that @Road becomes aware that the
routers are not functioning properly and is or might become customer affecting,
@Road will notify the designated Ameritech representative(s) within 15 minutes
of becoming aware of the problem, and the Problem Resolution and Escalation
Procedures set forth in Section 5.1 shall apply. Ameritech will provide @Road
contact information for reporting any detected problems.
. Vehicle Location Service. The Vehicle Location Service ("VLS") is the
------------------------
provisioning, support and ongoing maintenance of a server running the
Application Software. @Road provides geographic position data collection from
vehicles equipped with the @Road, Inc. Model RC-10 CDPD/GPS radio unit. @Road
also provides an Internet accessible map display screen viewable with Netscape
and Microsoft Interneact browsers loaded with a browser plug-in supplied by
Autodesk, Inc.
. Facilities. All VLS computer server hardware and associated components
----------
will reside at the DCF.
. Hardware. @Road will provide a computer server ("@Road Server") to run
--------
the VLS Ameritech will purchase the RC-10 vehicle units from @Road and re-sell
them to End Users.
. Hardware Installation and Maintenance. @Road will perform any required
-------------------------------------
installation and maintenance of the @Road Server. Ameritech is responsible for
any required installation of the RC-10 units purchased from Ameritech by End
Users. IP addresses for the @Road Server are assigned by @Road. Ameritech will
assign the IP addresses for the RC-10 units.
. Software. @Road will supply all of the necessary, software for the
--------
@Road Server.
. Software Installation. @Road will be responsible for all @Road Server
---------------------
software installation.
. Monitoring and Support. @Road will monitor the @Road Server on a 7
----------------------
day by 24 hour basis. Anytime that @Road becomes aware that the @Road Server is
not functioning properly and is or will become customer affecting, @Road will
notify, the designated Ameritech representative(s) within 15 minutes of becoming
aware of the problem, and the Problem Resolution and Escalation Procedures set
forth in Section 5.1 shall apply. Ameritech will provide @Road contact
information for reporting problems.
. Customer Provisioning. Ameritech will be responsible for managing
---------------------
the overall provisioning process of any new Ameritech End User. @Road will be
responsible for updating the @Road Server to allow access by any Ameritech End
User.
The activation and installation process for VLS is described in Exhibit D,
VLS Activation & install Process. The configuration form that will be used to
collect customer information for provisioning new accounts on the @Road Server
is attached as Exhibit E. Any changes to this form will be mutually agreed to
between @Road and Ameritech. When provisioning a new End User, Ameritech will
fax or email the completed Configuration Form to @Road.
. Customer Deactivation. Ameritech will be responsible for managing
---------------------
the overall deactivation process. The VLS customer Deactivation Form is attached
as Exhibit F. Any changes to this form will be mutually agreed to between @Road
and Ameritech. When a customer requests a deactivation from the VLS Service,
Ameritech will complete the deactivation form and fax or email the completed
form to @Road. @Road will be responsible for removing access by the End User to
the Vehicle Location Service server.
. End User Support. @Road will provide Level 1 Technical Support
----------------
("L1TS") to End Users. The L1TS function accepts calls from End Users or the
Ameritech Wireless Data Call Center ("AWDCC") with questions or problems on the
VLS and RC-10 units. @Road will perform problem isolation, and will escalate to
the appropriate third party (including Ameritech) if it is determined that the
problem cannot be resolved by @Road. If @Road determines that a reported problem
is isolated to the Ameritech CDPD Network, @Road will contact the AWDCC to
report the problem. The AWDCC will be responsible for contacting the appropriate
Ameritech Technical Support Personnel to ensure that the problem is resolved.
The AWDCC will be responsible for contacting @Road to provide notification once
the problem has been resolved.
@Road will accept support calls from 7am until 7pm, Monday through Friday,
Central Standard Time. During off hours and weekends, @Road will provide support
through an answering service designated by @Road. The answering service will
accept the End User's call, and will record the End User's name, company name
and phone number at a minimum. The answering service will then send a page to
the @Road designated on-call technician. The answering service will either
provide the on-call technician with the customer name and phone number via
alpha-numeric page or the on-call technician will call into the answering
service to retrieve it. The on-call technician will then provide a return phone
call to the End User within two hours that the End User placed the call to the
answering service.
. Problem Resolution and Escalation Procedures. @Road will perform the
--------------------------------------------
following procedures to resolve support problems. The category of the problem
reported, as determined by the End User, will determine the escalation procedure
used for resolution.
- Category l - End User reports an unusual abort or shutdown but is
able to restart; End User requests a feature or change to existing
operation - service for the End User remains in operation.
- Category 2 - End User reports one or more RC-10 units are not
functioning or that access to or a feature of the @Road Server is not
functioning properly - service for the End User is down or is
significantly impaired.
- Category 3 - End User reports that one or more RC-10 units are not
functioning or that access to or a feature of the @Road Server is not
functioning properly and L1TS determines that either all or part of the
@Road Server is down - service for an entire customer account or all
customer accounts is down or is significantly impaired.
Category 1. Category 1 calls will be analyzed by the @Road Technical Support
----------
Representative ("TSR") to determine if the problem is part of the capabilities
of the Application Software. The problem will be resolved following the process
described in this Description of Services. If the problem was a temporary
service stoppage, error message or feature request, the problem or feature
request will be documented and forwarded to the @Road Manager of Technical
Support. If necessary, Category 1 problem resolution work is superseded by the
existence of Category 2 or Category 3 problems until the Category 2 or 3 problem
is resolved and the End User(s) is (are) up and running.
Category 2. For all Category 2 calls, L1TS personnel will work immediately and
----------
diligently to attempt to resolve the problem within 2 hours. L1TS personnel will
continue to work during normal business hours on the problem until resolved.
Category 2 problems will be transferred to the next work shift for ongoing work
if the outage is not resolved at the close of shift. @Road will provide
reasonable and best efforts to ensure that all Category 2 issues are completely
resolved within 1 business day. Category 2 problem resolution work is superseded
by the reporting of Category 3 problems if the determination is made that the
Category 2 problem is not related to the Category 3 problem.
Category 3. Category 3 problems are treated with top priority. If L1TS detects a
----------
Category 3 problem, they are instructed to immediately notify all other on-shift
L1TS personnel including the L1TS manager on duty. If the problem has not been
resolved within 30 minutes, the Manager of Technical Support ("MTS") for @Road
will be contacted regardless of the time of day. If not available, progressively
higher levels of management will be contacted. All work by any technical support
person will be suspended and all available resources will be committed to the
problem working around the clock until resolved. @Road will provide reasonable
and best efforts to ensure that all Category 3 issues are completely resolved
within 1 day.
. Scheduled Maintenance and Upgrade Procedures. Network, software and
--------------------------------------------
hardware components of the VLS may require scheduled maintenance to, among other
reasons, improve performance, add features or maintain a current and supportable
infrastructure. @Road and Ameritech will use the following procedure for
scheduling maintenance downtime and for putting new software releases into
service.
Step 1 -- @Road will determine that some combination of hardware, software
or network components must be scheduled for maintenance or replacement. If
@Road determines the maintenance can be performed without material or
visible affect on End Users and thus End Users will incur no downtime from
the upgrade, @Road will proceed with the upgrade at its discretion. If
@Road determines that the maintenance will have a material or visible
affect on End Users including, but not limited to, new features or changes
to End User operation or incur End User downtime, the maintenance procedure
will move to Step 2.
Step 2 -- @Road will send a written notice to Ameritech outlining the
reason for the upcoming scheduled maintenance ("Maintenance Notice"). If
the maintenance work will include new features visible to End Users or
changes to End User operation, @Road will outline the features of the
upgrade including, if known, any potential problems which may be
encountered during or after the upgrade in the Maintenance Notice. Within
the Maintenance Notice, @Road will provide information for Ameritech to
access a test server running the upgraded software. From the time of the
Maintenance Notice, Ameritech has 30 calendar days to perform any testing
of the upgrade. @Road L1TS will be available to Ameritech by telephone or
email to review test results and discuss test progress. At the earliest
possible time, but no longer than 30 days from the date of the Maintenance
Notice, Ameritech will inform @Road in waiting of the acceptance or
rejection of the upgrade. If the upgrade is rejected, Ameritech will
document those problems or features which led to the rejection. If the
upgrade is accepted, the process will move to Step 3. If no response is
received, @Road will consider the upgrade accepted.
Step 3 -- @Road will inform Ameritech in writing of the scheduled
maintenance downtime ("Downtime Notice"). In the Downtime Notice, @Road
will specify the time and date of the maintenance where the date is no less
than 10 calendar days from the date of issue of the Downtime Notice. In the
Downtime Notice, @Road will specify the period of time the service will be
down. This specified period will be considered Excused Downtime.
Ameritech may request a change to the date, time or period by responding in
writing within 5 calendar days from the date of the Downtime Notice. If
Ameritech requests a rescheduling of the maintenance, @Road and Ameritech
will determine a mutually acceptable time, date and period. @Road will then
issue a Revised Downtime Notice and proceed with the maintenance at the
specified time.
. VLS Sales Training. @Road will provide one (1) day of VLS sales training
------------------
at no additional cost to Ameritech sales and technical support personnel for
each Ameritech market which offers the Services hereunder. Thereafter, @Road
will provide additional reasonable training to Ameritech, provided that
Ameritech reimburses @Road for all reasonable travel, lodging, and meal expenses
@Road incurs in connection with providing such training.
. Facilities and Personnel. @Road will provide a full time, dedicated Sales
------------------------
Support Representative ("SSR") to Ameritech for the purpose of training the
Ameritech sales force on an as-needed basis and assisting with customer sales
activity, at no additional cost to Ameritech. The @Road SSR will provide the
sales training at locations provided by Ameritech.
. Covered Markets. @Road will provide training in the metropolitan areas of
---------------
all of Ameritech's CDPD coverage areas.
. Scheduling. Ameritech and @Road will work together to schedule training
----------
times that are mutually acceptable.
EXHIBIT B
@ROAD SERVICE PRICING
---------------------
Plan Update Rate Pricing (per month)
Basic AVL
Basic AVL [*] [*]
AWL & 2-Way Messaging [*] [*]
AWL & 2-Way Messaging [*] [*]
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
Exhibit D
VLS Activation and Install Process
1. Ameritech Rep sells VLS application
2. Ameritech Rep obtains credit approval on customer
3. Customer signs Ameritech CDPD Activation Form
4. Customer gives VLS Configuration Form to customer
5. Customer completes VLS Configuration Form and faxes it to Ameritech Rep
6. Ameritech Rep obtains IP address(es) for customer
7. Ameritech Rep determines if customer or Ameritech will install RC-l0
units
8. If Ameritech is doing the install, Ameritech Rep determines
installation facility and schedules installation date
9. Ameritech Rep reviews Configuration Form for completeness, adds IP
address(es) and installation facility (if needed) to the form and faxes
the form to @Road and installation facility
10. @Road configures the VLS server with customer information and programs
the RC-10 GPS units with CDPD IP address(es)
11. @Road verifies each unit is operational and all customer specified
information is entered into the VLS server correctly
12. @Road ships RC-10 units to customer or installation facility as
indicated on the configuration form
13. Installation facility or customer installs equipment
14. Installer calls @Road to verify units are reporting in and operational
15. Customer signs completed installation form
[LOGO OF @ROAD]
Exhibit E-Account Configuration Form
Contact Company Name Account ID
Information (Existing Customers)
______________________ _____________________________
Contact Name Telephone
______________________ _____________________________
Email Fax
______________________ _____________________________
Account Username * Password *
Information
*10 characters
Alphanumeric
Case sensitive
______________________ _____________________________
Admin Password *
_____________________________
---------------------------------------------------------------------------
Vehicle Vehicle Name Type of Vehicle Other I.D. (License Plate)
Information
---------------------------------------------------------------------------
Name Displayed
on the website ---------------------------------------------------------------------------
** 8 characters
Alphanumeric ---------------------------------------------------------------------------
Case sensitive
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Signature Date
------------------------------------------------------------ ---------------
Please fax the form back to @Road at (000)000.0000.
If you have any questions, please contact Xxxxxxxxx Xxx at (510)888.1638 x 308
[LOGO OF @ROAD]
Exhibit F - Account De-Activation Form
Customer Company Name Account ID
Information (Existing customers)
______________________ _____________________________
Contact Name Telephone
______________________ _____________________________
Email Fax
______________________ _____________________________
Reason for De-Activation:
De-Activation Effective Date: _____________________
IP's To Be De-Activated or ALL
------------------------------------------------------------------------------
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------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Carrier Date
Signature __________________________________________________ _______________
Name ____________________________________________________
Please fax the form back to @Road at (000)000.0000.
If you have any questions, please contact Xxxxxxxxx Xxx at (510)668.1638 x 308
