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MICRODYNE CORPORATION 1997 ANNUAL REPORT ON FORM 10-K
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Exhibit 10.34
SUPPORT SERVICES AGREEMENT
This Support Services Agreement (the "Agreement") is made this 26 day of
September, 1997, by and between Microdyne Corporation ("Microdyne"), a Maryland
corporation located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇, and
Alpine Electronics of America, Inc. ("Alpine"), a corporation with a principal
place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇.
1. DESCRIPTION OF SERVICES AND PRICING.
Microdyne will provide to Alpine the services specified in Schedule A
("Services"), for the fees which are set forth in Schedule B which is
incorporated herein by reference.
2. EFFECTIVE DATE AND TERM.
This Agreement shall become effective on the 3rd day of November, 1997 (the
"Effective Date") and shall continue for eighteen (18) months through the 3rd
day of May, 1999 (the "Initial Term"). Thereafter, this Agreement shall
automatically renew for successive one-year periods (the "Renewal Term(s)")
unless canceled by either party by giving notice of such cancellation to the
other not less than thirty (30) days before the beginning of any ▇▇▇▇▇▇▇ ▇▇▇▇.
3. ACCOUNT MANAGEMENT AND PERSONNEL.
(A) Account Manager. Microdyne will designate an Account Manager ("Account
Manager") who will be directly responsible for coordinating and managing the
delivery of the Services and will have full authority to act on Microdyne's
behalf with respect to all matters relating to this Agreement. The Account
Manager will work with the Alpine Representative (hereinafter defined) to
address Alpine's customer service issues and strategies and the parties'
relationship under this Agreement.
(B) Alpine Representative. Alpine will designate a representative ("Alpine
Representative") who will be directly responsible for supervising the delivery
of the Services and have full authority to act on Alpine's behalf with respect
to all matters relating to this Agreement. The Alpine Representative will work
with the Account Manager to address Alpine's customer service issues,
information technology issues and strategies, and the parties' relationship
under this Agreement.
(C) Microdyne's Personnel. Microdyne will use reasonable commercial efforts
to ensure that all personnel who are to perform any tasks, work, functions or
obligations under this Agreement for or on behalf of Microdyne shall be
competent, experienced, and trained in the tasks, work, functions or obligations
to be performed by such personnel.
(D) Personnel Training. Microdyne shall implement and maintain a policy of
on-going training for all personnel to ensure that all personnel have the
requisite skills and knowledge required to perform the tasks, work, functions
and obligations assigned to them by Microdyne. Both parties acknowledge,
however, that the initial product training of personnel will be undertaken by
Alpine.
(E) Information Available to Microdyne Personnel. Alpine shall timely
supply Microdyne with all necessary information and printed advertising
materials regarding Alpine's products and services and shall maintain the
currency and accuracy of such materials and information. In addition, Alpine
shall assist Microdyne in developing communications materials and standard
responses to customer requests and make technical information available to
Microdyne without cost to Microdyne in order to enable Microdyne to provide the
Services.
(F) Customer Service Quality Monitoring. Microdyne will monitor the quality
of performance of Microdyne's personnel employed to render Services hereunder by
conducting scheduled random recordings of ▇▇▇▇▇▇'s customer calls for personnel
training purposes.
4. REPORTING REQUIREMENTS AND ALPINE'S DATA
(A) Records and Audit Rights. Microdyne agrees to keep and maintain records
of the charges associated with Microdyne's provision of Services. Alpine retains
the right to have a representative of Alpine's certified public accounting firm
inspect and audit Microdyne's books and records pertaining to the Services
during normal business hours upon reasonable notice to Microdyne, at Alpine's
expense, to insure compliance with the terms of this Agreement.
Microdyne agrees to furnish to Alpine a statement within fifteen (15) days
following the end of each month identifying the Services performed during the
preceding month. Microdyne shall keep and maintain true and accurate records
regarding all information and data reasonably necessary or required for the
computation and verification of all amounts payable to Microdyne hereunder.
Microdyne agrees to provide any information required by Alpine to comply with
government rules and regulations. The information will be made available on a
mutually agreeable schedule determined at the time of any request.
(B) Other Reports. Microdyne will provide Alpine with other type of
reports, customer call data and information, in a form and with content mutually
agreed by the parties, form time to time agreed to by the parties, including
tracking reports generated by Microdyne. Microdyne shall give to Alpine on
demand an
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electronic copy of any information kept pursuant to this paragraph.
(C) Confidential Information. During the term of this Agreement, Microdyne
will have access to information that is confidential and proprietary to Alpine
and not generally known to the industry. Such "Confidential Information"
includes, but is not limited to, the following types of information or other
information of a similar nature (whether or not reduced to writing):
discoveries, ideas, concepts, software in various stages of development,
designs, drawings, specifications, techniques, models, data, source code, object
code, documentation, diagrams, flow charts, research, development, processes,
procedures, marketing plans, information related to customers, price lists,
pricing policies and financial information. Such Confidential Information shall
belong exclusively to Alpine and Microdyne agrees to turn over all copies of
such materials in its control to Alpine upon request or upon termination of this
Agreement.
Microdyne agrees to hold in confidence and not to directly or indirectly reveal,
report, publish, disclose or transfer any of the Confidential Information to any
person or entity, or utilize any of the Confidential Information for any
purpose. Microdyne shall segregate and keep separate from any other records,
documents, drawings or similar material any and all Confidential Information and
any and all information generated by Microdyne which relates to or is based upon
such Confidential Information.
Microdyne shall limit availability of Confidential Information within its
organization to those employees or consultants who have a reasonable need to see
and use the same. Each employee and consultant who obtains access to
Confidential Information shall be fully informed of its confidential nature, and
shall be required to enter into a written agreement acknowledging that such
employee or consultant agrees to abide by any and all disclosure and use
restrictions imposed upon Microdyne by reason of this Agreement.
5. PAYMENT TERMS.
(A) Invoice. Alpine agrees to remit payment to Microdyne at the remittance
address and on the due date indicated on Microdyne's invoices to Alpine ("Due
Date"). In the event Alpine fails to make full payment to the proper address
within thirty (30) days after the Due Date, Alpine shall also pay an interest
charge in the amount of one and one-half percent (1.5%) of the unpaid balance
per month or the maximum lawful rate under applicable state law, whichever is
greater.
Payment for all monthly recurring charges, installation and other agreed upon
charges shall be billed following the receipt of any such Services.
(B) Suspension of Services. In the event payment in full is not
received from Alpine on or before sixty (60) days following the Due Date,
Microdyne shall have the right, after giving Alpine ten (10) days notice, to
suspend all or any portion of the Services to Alpine. If only a portion of the
Services are suspended and Alpine does not cure its nonpayment, Microdyne may
suspend, after giving Alpine ten (10) days notice, all or any additional portion
of the Services to Alpine. Microdyne may continue the suspension until such time
as Alpine has paid in full all charges then due, including any late fees as
specified herein. If Alpine fails to make such payment by a date determined by
and acceptable to Microdyne, Alpine shall be deemed to have canceled the
Services provided under this Agreement effective on the date of such suspension
and shall remain liable for all cancellation charges set forth in the Service
Schedule.
(C) Taxes. Alpine shall be responsible for the payment of all sales, use
and personal property taxes assessed on products provided or sold in connection
with this Agreement, excluding taxes based upon the net income of Microdyne.
Microdyne shall be responsible for all taxes arising from Alpine's payments for
the Services, including but not limited to withholding taxes, FICA payments,
worker's compensation and state disability payments.
(D) Minimum Calls. The parties acknowledge that Microdyne's pricing for the
Service is based upon a minimum of 6,000 calls per month being received by
Microdyne's call center from Alpine's customers. The parties agree that in the
event such minimum is not met, they will meet to discuss adjustments to the
pricing set out in Schedule B hereto.
6. TERMINATION AND DEFAULT.
(A) Termination. If Microdyne is prohibited by any governmental authority
from furnishing all or a portion of the Services, or if any material rate or
term contained herein and relevant to the affected Service is substantially
changed by order of the highest court of competent jurisdiction to adjudicate
the matter, the Federal Communications Commission, or other local, state or
federal government authority, then Microdyne may upon thirty (30) days prior
written notice to Alpine, terminate this Agreement or the affected portion of
the Service.
(B) Events of Default. With respect to any of the Services hereunder,
Alpine may terminate that Service, upon written notice to Microdyne and
following a period of thirty (30) days in which Microdyne may cure such default,
if the quality of Services provided hereunder fall consistently below the level
of quality as agreed upon by Microdyne and Alpine. Either party may terminate
this Agreement if the other is in default of any material obligation contained
herein, which default has not been cured within fifteen (15) days following
notice of such default. In the event this Agreement is terminated by Alpine
during the initial term other than as provided in the two preceding sentences,
or by Microdyne because of Alpine's default, Alpine shall pay the
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amount of installation fees determined by multiplying $10,000 by the fraction,
the denomination of which is 12, the numerator of which is the number 12 minus
the number of full months from the Effective Date. If the number is a negative
number, there will be no charge. This Agreement shall automatically be canceled
if either party becomes insolvent or makes an assignment for the benefit of
creditors or if any insolvency proceeding is initiated by or against it. All
unpaid charges accrued under this Agreement shall become immediately due and
payable upon the happening of the event of termination. The aforesaid rights
shall be in addition to all other rights and remedies provided at law, in
equity, or hereunder.
7. GENERAL AGREEMENT.
(A) Warranty and Disclaimer of Warranty. Microdyne warrants that Services
shall be provided to Alpine in accordance with the parameters set forth in the
Service Schedule. Microdyne shall use reasonable efforts under the circumstances
to remedy any delays, interruptions, omissions, mistakes, accidents or errors in
the Services and restore such Services to comply with the terms hereof. THE
FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR REMEDIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(B) Limitation of Liability. IN THE EVENT OF ANY BREACH OF THIS AGREEMENT,
MICRODYNE SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR FOR
ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER AND, WITH RESPECT TO PARTIES
OTHER THAN ALPINE THAT USE THE SERVICES THROUGH ALPINE, ALPINE SHALL INDEMNIFY
MICRODYNE AGAINST ANY CLAIMS FOR SUCH DAMAGES BROUGHT AGAINST IT BY THIRD
PARTIES, UNLESS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL WRONGDOING OF
MICRODYNE.
(C) Alpine Content and Indemnity. Alpine shall make all arrangements with
copyright holders, or other parties for necessary authorizations, clearances or
consents ("Consents") with respect to information, data or other contents
("contents") provided to Microdyne for distribution to callers. Alpine shall
indemnify and hold harmless Microdyne against and from any action, suit or
claim, whether civil or criminal, private or public, brought against Microdyne
arising out of or related to the contents distributed hereunder (by Microdyne's
employees, over the Internet, Microdyne's network or otherwise) or related to
Alpine's products including, but not limited to, claims, actual or alleged,
relating to any infringement of copyright, patents, any violation of export
control laws, failure to procure Consents or that such transmission Content
violate third party intellectual property rights. Alpine agrees not to use the
Services for any unlawful purpose, including without limitation any use which
constitutes or may constitute a violation of any local, state or federal
obscenity law.
(D) Force Majeure. If either party's performance of this Agreement or any
obligation (other than the obligation to make payments) hereunder is prevented,
restricted or interfered with by causes beyond its reasonable control including,
but not limited to, acts of God, fire, explosion, vandalism, cable cut, storm or
other similar occurrence including rain fade or other atmospheric conditions,
any law, order, regulation, direction, action or request of the United States
Government or state or local governments, or of any department, agency,
commission, court, bureau, corporation or other instrumentality of any one or
more said governments, or of any civil or military authority, or by national
emergencies, insurrections, riots, wars, acts of terrorism, strikes, lockouts or
work stoppages or other labor difficulties, supplier failures, shortages,
breaches or delays, then the affected party shall be excused from such
performance on a day-to-day basis to the extent of such prevention, restriction
or interference. The affected party shall use reasonable efforts under the
circumstances to avoid and remove such causes of non-performance and shall
proceed to perform with reasonable dispatch whenever such causes cease. Failure
of equipment or transmission services of a telecommunications carrier involving
Microdyne's Services ("Outage") shall be considered an event of Force Majeure
hereunder. In the event of an occurrence of such Outage causing failure of
Services which is beyond the control of Microdyne, the unaffected portion of the
Service may be subject to interruption as Microdyne deems necessary. Microdyne
shall not be liable for such interruption.
(E) Press Releases. Alpine agrees that Microdyne may provide press
releases, regarding this Agreement, and the Services to be provided hereunder,
provided Alpine reviews and approves such press releases which approval is not
unreasonably delayed or withheld. Alpine understands and agrees that Microdyne
may disclose such information as may be required under applicable law, including
information Microdyne considers material to its business and prospects.
8. MISCELLANEOUS PROVISIONS.
(A) Title to Equipment. This Agreement shall not, and shall not be deemed
to, convey to Alpine title of any kind to any of the transmission facilities,
digital encoder/decoders, telephone lines, microwave facilities or other
facilities utilized in connection with the Services.
(B) Notice. Notices under this Agreement shall be in writing and delivered
either via U.S. mail, certified with return receipt requested, or via Federal
Express priority next-day delivery, to the person identified in this Section at
the full business addresses of the parties as they appear herein. The effective
date for any
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notice under this Agreement shall be the date of delivery of such notice, not
the date of mailing. The full business address for purposes of notice under this
Section as well as telephone voice and facsimile numbers for reservation of
services and troubleshooting shall be:
Microdyne Corporation Alpine Electronics of America, Inc.
Attn: President Attn: ▇▇▇ ▇▇▇▇▇▇, Customer Relations Mgr.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. 90501
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(C) Merger/Integration. This Agreement (including the attached Service
Schedule, as it may be modified from time to time) consists of all the terms and
conditions contained herein and in documents incorporated herein specifically by
reference. This Agreement constitutes the complete and exclusive statement of
the understanding between the parties and supersedes all proposals and prior
agreements (oral or written) between the parties relating to Services provided
hereunder.
(D) Written Amendment. Alpine agrees that any addition, deletion or
modification to this Agreement shall not be binding on Microdyne except by
written agreement executed by Microdyne.
(E) No Venture. The provision of Services shall not create a partnership
or joint venture between the parties.
(F) Conflict of Law. In addition to the nonpayment of any sum due
hereunder, Microdyne may immediately suspend Services in whole or part if
Microdyne determines that such Services violate the Communications Act of 1934,
as amended (including the Telecommunications Act of 1996), or that the
imposition of any state or federal statute, or promulgation of any rule,
regulation, or order of the Federal Communications Commission ("FCC") or other
governing body makes Microdyne's performance commercially impracticable.
(G) Assignment. Alpine shall not assign or transfer its rights or
obligations under this Agreement without the prior written consent of Microdyne,
provided that Alpine may reincorporate in any state without the prior written
consent of Microdyne. Any such assignment or transfer of Alpine's rights or
obligations without such consent shall entitle Microdyne to terminate the
Services provided hereunder at its option upon ten (10) days' prior written
notice to Alpine. A change in control shall be deemed to be an assignment or
transfer.
(H) Choice of Law. This Agreement shall be governed by the laws of the
Commonwealth of Virginia.
(I) Interpretation. No rule of construction requiring interpretation
against the draftsman hereof shall apply in the interpretation of this
Agreement.
(J) No Third Party Beneficiary. The provisions of this Agreement are for
the benefit only of the parties hereto, and no third party may seek to enforce
or benefit from these provisions.
(K) Arbitration. Any and all disputes arising from or in connection with
this Agreement shall be settled, promptly and in good faith, by mutual
consultation between the parties. Failing such amicable settlement, such
disputes shall be settled by arbitration in Los Angeles, California, in
accordance with the commercial dispute rules of the American Arbitration
Association. The award of arbitration shall be final and binding upon the
parties.
(L) Attorneys' Fees. If a proceeding is brought for the enforcement of this
Agreement or because of any alleged or actual dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees and
other costs and expenses incurred in such action or proceeding in addition to
any other relief to which such party may be entitled.
(M) Severability. In the event any provision of this Agreement conflicts
with any statute, rule or order of any governmental unit or regulatory body, or
tariff then, if required by law, such statute, rule, order or tariff shall
control.
(N) No Waiver. The failure of either party to enforce any provision hereof
shall not constitute the permanent waiver of such provision.
MICRODYNE CORPORATION ALPINE ELECTRONICS OF AMERICA, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/▇▇▇ ▇▇▇▇▇▇
Signature Signature
Vice President, Operations Customer Relations Manager
Title Title
September 26, 1997 September 26, 1997
Date Date
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