ALLIANCE AGREEMENT
This Alliance Agreement (Agreement) is entered into as of January __, 2000
(Effective Date) by and between XxxxxXxxxxxxx.xxx, Inc., a Delaware limited
liability company (PEx) and XX Xxxxxxxx Worldwide, Inc., a Delaware corporation
(CHR).
Background
CHR provides logistics services to customers in North America and other
geographies; PEx operates an electronic forum for the buying, selling and
trading of pulp, paper and paper packaging products. CHR and PEx see a mutually
beneficial opportunity to serve the needs of PEx customers for dependable,
cost-competitive, seamless logistics service throughout North America in respect
of products purchased through PEx.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, CHR and PEx agree as follows:
1. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined herein
shall have the meaning set forth below.
Affiliate means with respect to either party, any Person that, directly or
indirectly, is controlled by, controls or is under common control with such
party. For purposes of this Agreement, control means, with respect to any
Person, the direct or indirect ownership of more than fifty percent (50%) of the
voting or income interest in such Person or the possession otherwise, directly
or indirectly, of the power to direct the management or policies of such Person.
CHR Features means the (a) computer object codes (machine readable format);
(b) specifications; (c) executable Application Program Interface (API) modules;
(d) API information; (e) configuration files, reference data files, help files
and spreadsheets used to maintain any reference data; (f) assembly, test,
installation and service instructions; (g) engineering, programming, service and
maintenance notes and logs; (h) technical, operating and service and maintenance
manuals; (i) hardware reference manuals; user documentation; (j) training
materials; and (k) other data, information and know-how, which is necessary and
desirable to design, manufacture, assemble, service, maintain, install, operate,
use or test the CHR software described in Attachment B, together with any
additions, developments, enhancements, improvements, updates and other changes
in such software made during the term of this Agreement.
Confidential Information means all proprietary and confidential information
of a party, including, without limitation, trade secrets, technical information,
business information, sales information, customer and potential customer lists
and identities, product sales plans, sublicense agreements, inventions,
developments, discoveries, software, know-how, methods, techniques, formulae,
data, processes and other trade secrets and proprietary ideas, whether or not
protectable under patent, trademark, copyright or other intellectual property
laws provided by either party to the other party pursuant to this Agreement in
written or other tangible medium and marked as confidential, or if disclosed
orally or displayed, confirmed in writing at the time of disclosure, except any
portion thereof which: (a) is known to the receiving party, as evidenced by the
receiving party's written records, before receipt thereof under this Agreement;
(b) is disclosed to the receiving party by a third person who is under no
obligation of confidentiality to the disclosing party hereunder with respect to
such information and who otherwise has a right to make such disclosure; (c) is
or becomes generally known in the trade through no fault of the receiving party;
(d) is independently developed by the receiving party, as evidenced by the
receiving party's written records, without access to such information; or (e) is
the subject of a subpoena or other validly issued administrative or judicial
process requesting disclosure of such Confidential Information; provided, the
party that receives such order or process provide prompt notice to the
disclosing party and permits the disclosing party to contest or narrow such
request for disclosure and thereafter complies with such subpoena or other
process.
Force Majeure means any event beyond the control of the parties, including,
without limitation, failures of computers, computer-related equipment, hardware
or software, fire, flood, riots, strikes, epidemics, war
* Confidential Treatment Requested: material has been omitted and filed
separately with the Commission.
(declared or undeclared and including the continuance, expansion or new outbreak
of any war or conflict now in existence), embargoes and governmental actions or
decrees.
North America means the United States of America and Canada.
Person means any individual, corporation, association, partnership (general
or limited), joint venture, trust, estate, limited liability company, limited
liability partnership, unincorporated organization, government (or any agency or
political subdivision thereof) or other legal entity or organization.
Trademarks means (i) the trademarks described on Attachment C, and (ii) any
other trademarks, as may be agreed upon in writing from time to time by the
parties for use by the parties in connection with the activities contemplated by
this AgreementCHR Services.
Other Defined Terms. Each of the following terms have the meanings
ascribed to it in the section set forth opposite such term:
Agreement Recitals
Applicable Services Section 3.2
ASC Section 3A.1
Change Control Document Section 2.5
Change Request Section 2.5
CHR Recitals
CHR Content Section 2.7; Attachment B
CHR Services Section 3.1
Competitor Section 3A.1
Effective Date Recitals
Final Acceptance Section 2.6
Final Specifications Section 2.1; Attachment B
Fix Period Section 2.6
Indemnifying Party Section 8.3
Indemnitees Section 8.3
Losses Section 8.2
Material Nonconformity Section 2.6
Milestone Delivery Section 2.2
Milestone Requirements Section 2.2
Milestone Schedule Section 2.2; Attachment A
Millennium Compliant Section 7.2
PEx Recitals
PEx Content Section 3.1
PEx Services Section 3.1
Plan Section 3.2
Provider Section 3A.1
Redelivery Section 2.6
Requirements Section 2.1
Seller Section 3A.1
Services Information Section 4.1
Source Material Section 5.3
Target Date Section 2.2
Test Period Section 2.6
2. Site Development & Resources
2.1 Specifications. The parties acknowledge that as of the Effective Date,
the complete specifications for the CHR Features have not been developed (the
Final Specifications). The objectives for the CHR Features include, but are not
limited to, (a) rapid transaction response; (b) transactional security; (c)
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access to data for reporting and ancillary functions; (d) use of XML and EDI
protocols; (e) use of existing CHR functions (when appropriate and available);
and (f) data retention. The CHR Features implementing these objectives shall
include at least the following functionality and performance features (the
Requirements) as specified at the end of this Section 2.1. The Requirements are
expected to be augmented, changed and refined during the period commencing
January 10, 2000 and ending January 31, 2000 and such changes shall not require
Change Requests (as defined in Section 2.5), except to the extent they represent
new business processes. As agreement is reached as to detailed functional
requirements and specifications and the performance requirements, they will be
specified in Attachment B. PEx shall be under no obligation to approve the Final
Specifications until it is reasonably satisfied that the Final Specifications
meet the Requirements. The Requirements are as follows:
Real-time Quote Estimates: CHR will provide real-time cost estimates when
requested by PEx users utilizing the PEx web site logistics service for
shipments originating and ending within North America.
Real-time Transactable Quotes: CHR will provide real-time transactable
quotes. Transactable quotes will be provided when requested by PEx
customers utilizing the PEx web site logistics service with regard to
specific offerings and requests posted on the site. Users requesting quote
estimates and transactable quotes will be provided real-time quotes for
both less-than-truckload and truckload shipments, along with estimated
shipping times. Intermodal quotes will be provided, with shipping times,
when the shipment is large enough to warrant intermodal transportation.
Real-time Tracking: CHR will provide real-time tracking capabilities
accessible from the PEx web site for all shipments managed by CHR. Tracking
information will include day/time of pick-up, shipment status, estimated
day/time of delivery or day/time product was delivered. PEx customers will
be able to track their shipments through the PEx site using a tracking
number provided by CHR/PEx.
Documentation: Shipping document access, generation and retrieval will be
available for bills-of-lading and other documents necessary to provide
logistics services. CHR will periodically make available additional
information technology resources to further develop and enhance PEx's
internet logistics capabilities.
2.2 CHR Features Construction. By March 31, 2000 (the Target Date), CHR
will, at its own cost, develop and deliver the CHR Features. Subject to
adjustment in accordance with Section 2.4, CHR will meet all Milestone Dates set
forth in Attachment A (the Milestone Schedule). On or before each Milestone Date
listed in the Milestone Schedule, CHR shall complete the activities described in
the Milestone Schedule (each, a Milestone Delivery) that meet (a) the
corresponding Milestone Requirement(s) set forth opposite such Milestone Date,
as well as (b) all Milestone Requirements for all previous Milestones (that is,
the Milestone Requirements are cumulative).
2.3 PEx Obligations. (a) PEx will, at its own cost, (i) define its web
site functionality and (ii) develop a user interface to offer internet quote and
tracking capabilities through the PEx web site. PEx will meet the Milestone
Dates set forth in the Milestone Schedule for these deliverables.
(b) PEx will, at its own cost allocate adequate information technology
resources to expedite implementation of the CHR Features on logistics portion of
the PEx web site, including formulation of the Final Specifications, performance
of acceptance tests and implementation of the CHR Features following acceptance.
2.4 Date Adjustments. PEx and CHR each agree to perform the tasks assigned
to it in the Milestone Schedule. Each party acknowledges that delays in
performance by either party may cause delays in performance by the other party.
Notwithstanding the foregoing, CHR agrees to exercise all reasonable efforts to
keep PEx on schedule and to notify PEx when CHR reasonably believes that PEx
should accelerate performance to fulfill PEx's obligations under the Milestone
Schedule. If PEx's failure to timely meet its obligations under the Milestone
Schedule causes a material delay in CHR's performance, all dependent Milestone
Dates shall be adjusted day-for-day to account for the delay caused by PEx.
Except in PEx's sole
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discretion, however, Milestone Dates shall not be adjusted to reflect Fix
Periods or other delays caused by CHR.
2.5 Change Procedures. PEx will have the right to inspect the progress of
work on the CHR Features at all reasonable times during the development process
and to confer with CHR to confirm compliance with the Milestone Schedule, and
PEx will be consulted concerning any matters that could cause a delay in
completion of the CHR Features. CHR acknowledges that time is of the essence for
this Agreement, and that significant delays in the completion of the CHR
Features will cause PEx significant harm. No changes to the Milestone Schedule
will be made without written approval of PEx. PEx may request amendments to
Milestone Schedule to effect changes in the CHR Features. If PEx wishes to make
a change it shall notify CHR of the requested change specifying the change with
sufficient details to enable CHR to evaluate it (a Change Request). Within five
business days following the date of CHR's receipt of a PEx Change Request, CHR
shall deliver a document that: (a) assesses the impact of the change on the
schedule, and (b) incorporates a description of the requested change (a Change
Control Document). If PEx accepts the Change Control Document, then the
provisions of this Agreement shall be deemed amended to incorporate such change
in accordance with the Change Control Document. It is the intent of the parties
that the Milestone Schedule has been defined broadly enough to accomplish PEx's
goals for the CHR Features and that within the Milestone Schedule, no Change
Orders will be required.
2.6 Acceptance Testing. (a) Commencing upon receipt by PEx of each
Milestone Delivery, PEx may, during the Test Period (as specified in the
Milestone Schedule opposite the Milestone Date), test the Milestone Delivery to
determine whether all applicable Milestone Requirements have been met. If one or
more Milestone Requirements are not met, PEx shall so notify CHR in writing,
stating the problems encountered. CHR shall have the time period set forth in
the Milestone Schedule for the applicable Milestone Delivery (the Fix Period) to
cure the problem and to redeliver the failed Milestone Delivery (a Redelivery).
After receipt by PEx of the Redelivery, PEx shall have a new Test Period to
re-examine and test the Milestone Delivery. If a Milestone Delivery is late or
if the Redelivery of a Milestone Delivery is Materially Nonconforming, PEx may
terminate this Agreement pursuant to Section 9.2. Material Nonconformity or
Materially Nonconforming means as to any Milestone Delivery, Redelivery or CHR
Features, errors or other failure(s) to meet the applicable Milestone
Requirements that (i) are not cured within the applicable cure period or Fix
Period and (ii) in PEx's reasonable judgment, individually or in the aggregate,
materially and adversely affect PEx's ability to perform the business functions
that are represented by or are within the scope of the applicable Milestone
Delivery or CHR Features.
(b) The absence of notification by PEx within the Test Period that one or
more Milestone Requirements have not been met will not indicate acceptance of
all or any part of any Milestone Delivery, it being understood that PEx retains
the right to reject the Milestone Delivery unless, upon completion of testing of
the final Milestone Delivery, all functional and performance specifications set
forth in the Milestone Schedule have been met (Final Acceptance). Any grant by
PEx to CHR of an extended period to make a conforming Milestone Delivery shall
not be deemed to waive any of PEx's rights hereunder.
(c) It is understood and agreed that a Milestone Delivery or Redelivery
need not be error-free to have achieved any particular Milestone Requirement,
but PEx may rightfully reject any Milestone Delivery or Redelivery that is
Materially Nonconforming. Notwithstanding the foregoing, Final Acceptance will
not relieve CHR of its obligation to correct nonconformities in accordance with
this Section 2.6. Neither Final Acceptance nor the conclusion of any Test Period
shall be deemed to be a waiver of any warranty claim of PEx or other obligation
of CHR. Acceptance of the CHR Features will not relieve CHR of its obligation to
use reasonable commercial efforts to correct all identified nonconformities in a
timely fashion.
2.7 Operation of PEx Logistics Site. (a) After the PEx website embodying
the CHR Features is implemented, PEx shall place a link on the PEx website and
shall display CHR's logo on the portion of the PEx web site related to logistics
services in the form specified in Attachment C. Thereafter, PEx will notify CHR
if PEx makes any change in the location, sizing or placement of the CHR logo or
any links that appear on the PEx website that transfer users to the CHR website.
If CHR does not notify PEx of its objection to such change within five (5) days,
CHR shall be deemed to have approved such change. PEx shall host and
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maintain the PEx website embodying the CHR Features at its sole cost and
expense. CHR, however, shall provide PEx, at CHR's sole cost and expense, all
relevant content as described in the Final Specifications for the CHR Features
(the CHR Content). Subject to the terms of this Agreement, CHR hereby grants PEx
an exclusive license to use, modify, enhance, reproduce, display, perform and
transmit the CHR Content.
(b) PEx shall be solely responsible for the operation and maintenance of
the PEx website and for all materials that appear on the PEx Site, except for
the CHR Content. PEx will provide, install, repair, maintain and pay for the
communications, computer and peripheral equipment, services and facilities
supporting the PEx website. CHR will provide, install, repair, maintain and pay
for the communications, computer and peripheral equipment, services and
facilities necessary to deliver the CHR Content to the PEx website.
2.8 Training; Technical Assistance. (a) CHR will provide PEx at no charge
with at least thirty (30) hours of training services covering the CHR Features.
CHR shall also provide PEx at no charge with update or "delta" training for each
major release of the CHR Features; such update training to be provided in a
timely manner to enable PEx to remain current with all improvements to the CHR
Features. CHR will provide PEx personnel with comprehensive written educational
materials as part of the training program and will ensure that PEx personnel are
afforded ample opportunity to discuss with CHR trainers the operation of the CHR
Features. PEx may use CHR training materials for purposes of training additional
PEx personnel after the initial training.
(b) CHR shall provide to PEx upon request such technical assistance and/or
additional training as PEx may reasonably request to enable PEx to more
effectively operate and use the CHR Features. Such technical assistance or
additional training shall be provided at no charge. CHR shall also provide to
PEx any service or other support information and services that would assist PEx
in marketing the CHR Services. Such service and support information and
services, to the extent they exceed an amount deemed reasonable by CHR, shall be
provided at a negotiated rate calculated to cover CHR's costs to deliver such
services.
3. MARKETING ARRANGEMENT.
3.1 Appointment. (a) Subject to the terms of this Agreement, PEx hereby
appoints CHR as PEx's Preferred Provider of logistics services for PEx customer
shipments of goods purchased, sold or exchanged on PEx's website that both
originate and end in North America (CHR Services). CHR hereby accepts the
appointment as preferred provider.
(b) Subject to the terms of this Agreement, CHR hereby appoints PEx as
CHR's Preferred Provider of electronic exchange services (including auction and
reverse auction services) for the purchase, sale or exchange of pulp, paper and
paper packaging products (PEx Services). PEx hereby accepts the appointment as
preferred provider.
(c) Subject to the terms set forth in this Agreement, PEx will also offer
CHR the opportunity to participate in joint marketing activities and client
proposal opportunities for customers in the pulp, paper and printing industries.
Subject to the terms set forth in this Agreement, CHR will also offer PEx the
opportunity to participate in joint marketing activities and client proposal
opportunities for customers in the pulp, paper and printing industries.
(d) Neither party shall have the right to make commitments of any kind for
or on behalf of the other party without the prior written consent of the other
party, in each and every case.
3.2 Market Development Strategy. (a) The parties will work together to
create a joint marketing and business development plan (Plan) each year. Each
party will use commercially reasonable efforts to implement such Plan in
connection with the marketing and sale of PEx Services and CHR Services to
customers in the pulp, paper and paper packaging industries.
(b) An Alliance Steering Committee (ASC) shall be responsible for
quarterly review and management of the Plan. The ASC shall consist of four
members, two members to be appointed by each of
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PEx and CHR. Each party may with notice to the other substitute any of its
members serving on the ASC. The initial CHR members shall be Xxxx Xxxxxx and
Xxxx Xxxxx and the initial PEx members shall be Xxx Xxxxxxx and Xxx Xxxxxxx.
(c) The ASC shall be responsible for the management and conduct of the
Plan and shall in particular: (i) consider, review and amend the Plan from time
to time in such manner as may be appropriate; (ii) monitor progress of the Plan;
and (iii) report regularly to the management of both parties upon the progress
of the Plan.
(d) The ASC shall hold formal meetings semi-annually or at any time upon
the reasonable request of either party during the term of the Plan. Unless
otherwise agreed by the parties all meetings of the ASC shall be held in
Minneapolis and in Boston on an alternating basis, with the first meeting to be
held in Boston on or around May 5, 2000. Meetings shall be scheduled with at
least twenty-one (21) days notice; the party that seeks to convene a particular
meeting shall be responsible for the meeting notice and scheduling; provided,
that the hosting party shall be responsible for notice and scheduling of the
semi-annual meetings. The quorum for ASC meetings shall be two, provided there
are at least one member from each of PEx and CHR present.
3.3 Marketing Efforts. (a) Subject to the provisions of this Agreement,
PEx and CHR will jointly work together to create a mutual understanding of
opportunities which are of priority interest and assist each party in focusing
their marketing efforts. The parties shall also work to identify target
customers and develop proposals for potential customers to propose a solution
encompassing CHR Services and PEx Services.
(b) PEx, in its reasonable business discretion, may include appropriate
individuals from CHR in PEx sales calls to xxxxx, converters, end-users, and
other PEx customers.
(c) PEx will request that its Board of Directors and veteran industry
sales force use reasonable efforts to provide pulp, paper and paper packaging
industry specific sales leads to CHR. Such leads shall include segments of the
industry that are currently lacking effective logistics solutions, and how such
industry participants could be marketed to by CHR for the purposes of this
Section 3. CHR may only use the information provided to them pursuant to this
Section 3.3(c) in connection with its performance under this Section 3.
(d) PEx will commit its sales force to promote a solution encompassing CHR
Services and PEx Services on visits to PEx's current and potential customers
including manufacturers, converters, brokers and printers.
(e) PEx will promote CHR's logistics services to other
business-to-business e-commerce sites that are seeking logistics services
including, but not limited to, the Internet Capital Group portfolio of
companies.
(f) CHR will promote PEx's electronic exchange services to its customers
who produce, buy, trade or distribute pulp, paper, paper packaging, or converted
paper products.
(g) CHR will, at its reasonable business discretion, develop marketing
material, in conjunction with PEx, to demonstrate how pulp, paper, paper
packaging, printing, and related customers of CHR can benefit from this
alliance.
3A. Exclusivity.
3A.1 Preferred Provider Status. Preferred Provider means as to either
party (each, a Provider), that it will be positioned internally at the other
party (each, a Seller) and externally by Seller such that the visibility Seller
affords Provider as a provider of Applicable Services, the rights Seller grants
to Provider as a provider of Applicable Services, and Provider's access to
Seller's sales organization as a provider of Applicable Services are superior to
the visibility Seller affords, the rights Seller grants, and the access to
Seller's sales organization, that Seller allows any Competitor as a provider of
Applicable Services. During the term of this Agreement and any renewal or
extension thereof, neither Seller will grant any Competitor of
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Provider the status which is equivalent to, or better than, the status and
rights accorded the other party as the Preferred Provider under this Agreement.
Applicable Services means (i) as to PEx, the PEx Services and (ii) as to CHR,
the CHR Services. Competitor means (1) as to PEx, any third party offering or
performing similar internet exchange, auction or reverse auction services for
the sale, purchase or exchange of pulp, paper, and paper packaging products; and
(2) as the CHR, any third party offering or performing substantially similar
logistics services for shipments of goods originating and ending within North
America; provided that it shall not include XPEDX, Unisource or any similar
paper distributor that includes logistics services as part of its product
offerings but for which such logistics services are not its' primary business.
3A.2 PEx Obligations. During the term of this Agreement, (i) PEx will use
CHR for all shipments of goods purchased through the PEx website originating and
ending within North America unless: (1) CHR does not provide logistics service
on any particular route; (2) CHR does not provide the particular mode of
transportation requested by a PEx member; (3) a PEx member specifically requests
an alternative logistics provider; or (4) a PEx member wishes to use their
company-owned logistics services; and (ii) PEx shall not, directly or
indirectly, by itself, through its Affiliates or through any type of joint
venture or similar affiliation with a third party enter into a strategic
partnership or integrate electronically with a CHR Competitor to offer logistics
services for shipments originating and ending within North America.
3A.3 CHR Obligations. During the term of this Agreement and for a period
of two years after the expiration or termination of this Agreement, CHR shall
not, directly or indirectly, by itself, through its Affiliates or through any
type of joint venture or similar affiliation with a third party, without prior
written approval from PEx, enter into a strategic partnership or integrate
electronically with or offer CHR Services to a PEx Competitor. CHR may, however,
continue to offer and provide logistics services directly to customers,
including those that are pulp, paper or paper packaging producers, distributors,
converters, or printers.
4. DELIVERY OF CHR SERVICES
4.1 Service Orders. (a) PEx customers shall place orders for CHR Services
by completing the purchase forms posted on the logistics portion of the PEx
website, or by other means agreed upon by the parties. No order shall be binding
upon CHR until the same shall have been accepted by CHR. CHR shall accept or
reject all orders within one (1) business day following receipt of same and
shall deliver all orders that are accepted within the time frame specified in
the order. CHR may reject any order that does not comply with the provisions of
this Agreement by providing to PEx and the PEx Customer, within one (1) business
day of its receipt of the non-complying order, a written notice specifying the
noncompliance. Any order that is not rejected in a timely manner or with
specificity shall be deemed accepted by CHR on the second business day following
CHR's receipt of the order. In case of conflict between the standard printed
terms of purchase/sale of CHR and the terms posted on the PEx website, the
latter shall prevail. When allocating resources with respect to filling orders
for CHR Services, CHR shall ensure that PEx orders are accepted and filled in a
manner that is in all material respects the same as or superior to the priority
and fill rate CHR applies to CHR Services ordered by third parties.
(b) CHR will provide PEx customers with logistics services for shipments
originating or ending outside of North America, as its resources permit,
including 24-hour customer service for issues regarding transportation including
freight quotes, shipment tracking, pick-up and delivery inquires and customer
complaints. Best efforts will be used to provide PEx with competitive prices and
to provide quotes in a timely manner (i.e., within 24 hours).
(c) When practical, PEx will promote the use of CHR's logistics services
for shipments for PEx customers that originate or end outside of North America.
CHR will provide logistics services for PEx shipments originating or ending
outside of North America, as its capabilities permit. Best efforts will be used
to provide PEx with competitive prices and to provide quotes in a timely manner,
not to exceed twenty four (24) hours following receipt of the PEx request for
CHR Services for such shipment.
4.2 Obligation to Supply. CHR shall not be in breach of this Section 4.2
if CHR's failure to supply CHR Services is due to a Force Majeure event.
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4.3 PEx Logistics Resources. (a) PEx will hire a senior level Logistics
Manager, experienced in logistics matters to manage PEx's delivery of logistics
services through the PEx website. CHR will assist PEx in its efforts to identify
and recruit a qualified candidate for the Logistics Manager position. CHR will
work with the PEx Logistics Manager on a daily basis to provide to further
develop logistics services for PEx customers.
(b) PEx will provide CHR with guidance and feedback from PEx staff
concerning the PEx Services relating to logistics and the CHR Services. Such
feedback shall be focused on information received from PEx customers concerning:
cost competitiveness of PEx price quotes, pick-up and on-time delivery
performance, customer complaints and similar matters.]
(c) PEx shall devote commercially reasonable efforts to promote the
acceptance of the CHR Services by PEx customers shall include the following
general activities performed in the reasonable business judgment of PEx: (i)
tailoring and extending PEx's existing methodologies to reflect the nuances of
logistics and CHR Services; and (ii) otherwise conducting such activities as are
reasonably appropriate for the marketing and sale of the CHR Services as part of
the PEx Services.
4.4 CHR Logistics Resources. (a) CHR shall furnish at no cost to PEx
reasonable quantities of promotional materials, such as sales literature and
procedures manuals (the Services Information)in order for PEx to promote the CHR
Services as provided for in this Agreement. Except as otherwise agreed by the
parties, PEx may use such Services Information without any limitation on
disclosure. In any event, CHR hereby grants PEx permission to disclose certain
Services Information to be designated and furnished by CHR to customers without
the requirement for non-disclosure agreements. CHR represents and warrants that
the Services Information as provided to PEx shall be accurate in all material
respects when provided, and CHR undertakes to update such Services Information
when necessary.
(b) CHR will provide PEx with its current CHR Services price list and
form(s) of CHR Services agreements in accordance with Section 5.3. CHR will
provide PEx with any revisions or updates to such materials and shall provide
additional copies of such materials upon request of PEx. With respect to CHR's
price list, CHR may update such list from time to time during the term of this
Agreement; provided that price adjustments shall not be made more often than
every ninety (90) days unless extraordinary circumstances require the adjustment
of prices to account for market phenomena.
(c) CHR shall devote commercially reasonable efforts to support PEx's
promotion and sales efforts, including the following general activities: (i)
answering technical questions and providing PEx with proposal assistance and
tutorial assistance relating to the CHR Services; (ii) supplying experts to
support detailed technical presentations and meetings relating to the CHR
Services; (iii) providing quotations for standard and custom configurations for
the CHR Services; and (iv) responding to phone calls from prospective customers.
5. PRICING; PAYMENT
5.1 Pricing. (a) PEx will quote prices for CHR Services on the logistics
portion of the PEx website that are based on the prices provided PEx by CHR
pursuant to Section 4.4(b) and include a xxxx-up determined in accordance with
Section 5.3. PEx will provide CHR with notice of the xxxx-up it adds to CHR's
prices as delivered under Section 4.4(b).
(b) CHR will act in good faith to provide PEx with competitive rates for
logistics services.
(c) Neither party shall disclose any billing or cost rates of the other
party to any Customer, potential Customer or Registered Prospect without prior
written approval of the other party.
5.2 Payment. PEx shall xxxx PEx customers that order CHR Services from the
PEx website at the rate determined in accordance with Section 5.1(a) and shall
pay CHR for CHR Services within thirty five (35) days after delivery to the
Customer, after deducting the portion of the fee charged the PEx Customer
ascribed to "xxxx-up". It is understood and agreed that PEx shall be responsible
for payment of CHR fees in respect
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of CHR Services regardless of PEx's receipt of payment from PEx customers. It is
further understood and agreed that PEx shall have sole discretion with respect
to those PEx customers that PEx permits to purchase CHR Services from the PEx
Site and that PEx may make such determinations based upon its' analysis of the
creditworthiness of such customers. All payments shall be stated and paid in
U.S. Dollars. Revenue received in currencies other than U.S. Dollars, shall be
converted to U.S. Dollars using the exchange rate in effect as of the date that
the payment is received by PEx. All payments from PEx to CHR or from CHR to PEx
will be reduced by any applicable withholding taxes. PEx and CHR will cooperate
to minimize, to the extent legally permissible, the tax liabilities related to
the transactions contemplated by this Agreement; provided such cooperation shall
not cause any adverse tax consequences to be incurred by either party which
would not have been incurred under the terms and conditions as described in this
Agreement. Each party shall provide and make available to the other party any
resale certificates, information regarding out-of-state or out-of-country sales,
and other exemption certificates or information reasonably requested by the
other party.
5.3 Post Effective Amendment. Within fourteen (14) days after the
Effective Date, the parties will attempt to specify the pricing ((Section
4.4(b)) and markup (Section 5.1) that will apply to transactions pursuant to
this Agreement. The procedure shall be as follows: CHR will provide notice to
PEx of PEx's proposed pricing, including applicable discounts. PEx will notify
CHR of its response to the CHR proposal within fourteen (14) days, including the
markup formula that PEx proposes to use, and, if PEx does not agree to such
pricing PEx shall provide a counteroffer. The parties will discuss any
differences between the pricing and discounts offered by CHR and the pricing and
discounts sought by PEx and, if no agreement is reached within seven (7) days
following PEx's notice to CHR, they will meet at a mutually acceptable location
to resolve any differences. If the parties are unable to reach agreement within
seven (7) days after meeting, either party may immediately terminate this
Agreement with notice to the other party and without need to use the procedures
specified in Section 10.2. Upon resolution of the applicable pricing, discounts
and markup formula, a memorandum supplying the missing terms will be executed
and appended to this Agreement as Amendment No. 1.
6. PUBLICITY; CONFIDENTIALITY; PROPRIETARY RIGHTS; LICENSES
6.1 Publicity. (a) Except as is necessary to comply with applicable laws
and regulations or to enforce their respective rights under this Agreement, or
to a party's legal or financial advisors, and except as otherwise agreed to by
the parties in writing, the parties shall: (i) keep the material terms of this
Agreement confidential, (ii) agree upon the text and the exact timing of an
initial public announcement relating to the transactions contemplated by this
Agreement as soon as possible after the Effective Date (such agreement not to be
unreasonably withheld or delayed) and (iii) agree on the text and the timing of
any subsequent public announcements regarding this Agreement or the transactions
contemplated herein. If this Agreement is required to be filed by CHR with the
Securities and Exchange Commission, CHR shall not file this Agreement with the
Securities and Exchange Commission without first notifying PEx and seeking
confidential treatment for any provisions of this Agreement that PEx believes
would disclose trade secrets, confidential commercial or financial information
that would impair the value of the contractual rights represented by this
Agreement or provide detailed commercial and financial information to
competitors or third parties.
(b) Except as otherwise provided in Section 6.5, neither party shall use
the name of the other party or any director, officer or employee of the other
party or any adaptation thereof without the prior written approval of the other
party; provided that subject to approval of the text of any promotional
material(s) or disclosures: (i) CHR shall have the right to promote PEx as a
preferred provider of internet exchange services for pulp, paper and paper
packaging products and its relationship with PEx as a provider of logistics
services as set forth in this Agreement in its marketing collateral and in
customer presentations and (ii) PEx shall have the right to promote CHR as its
preferred provider of logistics services for PEx customer shipments that both
originate and end in North America in its marketing collateral and in customer
presentations.
6.2 Confidentiality. (a) It is contemplated that in the course of the
performance of this Agreement each party may, from time to time, disclose
Confidential Information to the other. Each party agrees to take
9
all reasonable steps to prevent disclosure of Confidential Information and not
to use any Confidential Information except for the limited purposes set forth in
this Agreement.
(b) All Confidential Information made available hereunder, including
copies thereof, shall be returned or destroyed upon the first to occur of (i)
termination of this Agreement or (ii) written request by the discloser.
6.3 Proprietary Rights. (a) This Agreement does not convey to PEx any
ownership rights in any CHR Content, CHR Features or CHR Services or in any
intellectual property rights embodied in such CHR Content, CHR Features or CHR
Services by implication, estoppel or otherwise except for the rights expressly
granted under this Agreement. Title to the CHR Content, CHR Features and CHR
Services and the intellectual property rights embodied in the CHR Content, CHR
Features and CHR Services shall at all times remain vested in CHR or its
licensors; provided, that with respect to the CHR Features for which CHR retains
title, CHR hereby grants and agrees to grant PEx a non-exclusive, fully paid-up
and royalty-free license to use such CHR Features and intellectual property to
the extent necessary for PEx to make use of, market and distribute the PEx
Services alone or in combination with other technology and information as part
of PEx's business.
(b) This Agreement does not convey to CHR any ownership rights in any
products, materials, tools and methodologies that are proprietary to PEx or to
third parties or in any intellectual property rights embodied in such products,
materials, tools and methodologies by implication, estoppel or otherwise except
for the rights expressly granted under this Agreement. Title to all such
products, materials, tools and methodologies and the intellectual property
rights embodied in such products, materials, tools and methodologies shall at
all times remain vested in PEx or its licensors.
6.4 Enabling Licenses. (a) CHR hereby grants to PEx a worldwide, paid-up
and royalty-free license to (i) market, use, reproduce and display the CHR
Features to potential customers and PEx personnel and (ii) use the CHR Features
to develop enhancements, modifications, and derivative works of the CHR Features
for the purpose of: (1) marketing, promoting and demonstrating the CHR Features
pursuant to Section 6.4(a)(i) and 6.4(b); (2) developing and demonstrating
application programs utilizing the CHR Features; (3) training PEx personnel; and
(4) providing PEx Services to PEx customers.
(b) CHR hereby grants to PEx a non-exclusive, non-transferable license to
use, reproduce, display and transmit the CHR Content, solely in connection with
the development, maintenance and operation of the PEx Site, subject to and in
accordance with the terms, conditions and provisions of this Agreement. PEx
shall place a CHR Link in a mutually agreeable location and size on each page of
the PEx Site that contains all or a portion of the CHR Content. CHR and PEx
shall mutually agree upon the method of implementing such links. PEx shall not
remove any titles or any trademark, copyright or patent notices, or any
proprietary or restricted rights notices that appear on the CHR Content. All
such titles and notices must be reproduced on all permitted copies of the CHR
Content.
(c) CHR will provide PEx at no charge any updates and upgrades it makes to
the CHR Features. CHR will also provide PEx at no charge any new releases it
makes for the CHR Features. CHR shall deliver updates and upgrades to PEx not
later than thirty (30) days after it initially implements such updates, upgrades
and new releases.
6.5 Trademark License. (a) Subject to PEx's compliance with this Sections
6.5, CHR hereby grants to PEx a fully paid up and royalty-free right and license
to use the Trademarks in connection with the promotion, marketing and sale of
the CHR Services during the term of this Agreement. Subject to Section 6.5(d),
CHR shall take such actions as are reasonably required to maintain the
Trademarks in effect, and shall inform PEx of any changes in or additions to the
Trademarks. All right, title and interest to the Trademarks shall remain with
CHR and no other license relating thereto is granted hereunder.
(b) Subject to the wind-down rights set forth in Section 9.3, upon any
expiration or termination of this Agreement, the license to PEx to use the
Trademarks shall terminate, and PEx shall take all necessary
10
action and execute and deliver to CHR all necessary documents and instruments to
remove PEx as a registered user and/or a recorded licensee of the Trademarks.
(c) Each party hereto agrees to notify the other in writing promptly (but
not later than thirty (30) days) after obtaining knowledge of any infringements
or imitations of the Trademarks by third parties.
(d) CHR reserves the right to modify the Trademarks or substitute
alternative marks for any or all of the Trademarks at any time upon thirty (30)
days written notice; provided, that PEx shall not be required to incur any
expense to re-xxxx or otherwise modify sales collateral to adopt such modified,
substituted or alternative marks but shall implement such marks in a
commercially reasonable manner consistent with the depletion of then existing
inventory and sales collateral.
(e) Upon request of CHR, PEx shall provide CHR with a sample of all
product packaging and advertising that makes use of the Trademarks for purposes
of permitting CHR to verify that PEx's use of the Trademarks is consistent with
the provisions of Attachment C, but CHR's rights shall only extend to the
depiction of the Trademarks in such packaging and advertising copy and not to
any other content of such copy. PEx shall not challenge, directly or indirectly,
CHR's rights in respect of the Trademarks for the CHR Services, provided, that
PEx shall not waive its rights with respect to existing trademarks owned by PEx
or trademarks that PEx acquires during the term of this Agreement, and PEx shall
not waive any rights with respect to the protection of its trademarks. PEx shall
comply with the Trademark guidelines set forth in Attachment C. In the event
that PEx elects to adopt other marks for use in the promotion, marketing and
sale of the CHR Services then this Section 6.5(e) shall not apply to PEx's use
of such other marks.
7. REPRESENTATIONS AND WARRANTIES.
7.1 Authorization; Enforceability. Each of CHR and PEx represent and
warrant to the other that: (a) it is a corporation or limited liability company
duly organized, validly existing and in good standing under the laws of its
organizing jurisdiction; (b) it has all requisite power and authority to enter
into this Agreement; (c) it is duly authorized to execute and deliver this
Agreement and to perform its obligations hereunder and consummate the
transactions contemplated hereby; and (d) this Agreement is a valid and binding
obligation of such party enforceable in accordance with its terms.
7.2 CHR Features Warranty. (a) CHR represents and warrants to PEx that
owns or has valid licenses to all copyrights, patents, trade secrets,
trademarks, and other proprietary or intellectual property rights relating to
the CHR Features and the CHR Content and has the right to grant to PEx the
rights and licenses purported to be granted by or pursuant to this Agreement,
and has all other rights necessary for the performance of its obligations under
this Agreement.
(b) CHR represents and warrants that no software included in the CHR
Features shall contain any authorization strings, time limiting codes or other
instructions or codes that (i) prevent the CHR Services from being fully
functional at all times or (ii) may be used to obtain access to the CHR Services
without PEx's knowledge and authorization or (iii) may be used to, modify,
damage, disable, or compromise the security of any PEx technology, data,
information, or other proprietary or intellectual property rights including
without limitation any software, files, computer systems or networks of PEx.
(c) CHR represents and warrants that any software included in the CHR
Features shall be Millenium Compliant. Millennium Compliant means as to any
hardware, firmware, software or other technology associated with the CHR
Features, that it correctly performs all date-related operations (i) without
human intervention, other than original data entry of any date, (ii) without
regard to whether any date involved in the operation occurs in the 20th or 21st
Century and (iii) without regard to the system date at the time the calculation
is performed; provided that no failure to be Millennium Compliant shall be
deemed to have occurred if the non-compliance is due to hardware, firmware,
software or data not supplied by CHR (other than such third party hardware,
firmware, software or data that falls into either of the two following
categories: (1) with which CHR software is intended to interface, if any
agreement assigns to CHR the responsibility for ensuring the correct operation
of such interface; or (2) that is required, selected, embedded or supplied by
CHR).
11
7.3 Customer Warranties. (a) CHR shall extend to each Customer that enters
into an agreement to acquire CHR Services pursuant to this Agreement the
warranties and indemnification for its CHR Services and services that it
generally extends to its customers. CHR will provide each Customer that enters
into an agreement to acquire CHR Services pursuant to this Agreement support
services that are at least as favorable as the support services CHR generally
extends to its customers.
(c) It is understood and agreed that, as between the parties, CHR shall
remain solely responsible to customers for the performance of the CHR Services
and PEx shall remain solely responsible to customers for the performance of the
PEx Services.
8. RISK ALLOCATION
8.1 LIMITATION OF LIABILITY. (a) EXCEPT FOR INFRINGEMENT OF THE OTHER
PARTY'S INTELLECTUAL PROPERTY RIGHTS OR BREACH OF CONFIDENTIALITY OBLIGATIONS
UNDER SECTION 6.2 AND EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 8.2-8.3 WITH
RESPECT TO THIRD PARTY CLAIMS, THE AGGREGATE LIABILITY OF EITHER PARTY FOR
DIRECT DAMAGES ARISING OUT OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY SHALL BE LIMITED TO THE AGGREGATE AMOUNT PAID TO SUCH PARTY BY THE OTHER
PARTY AS OF THE DATE SUCH CLAIM IS FINALLY RESOLVED. IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR SAVINGS OR FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION
WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVER
CAUSED, UNDER ANY THEORY OF LIABILITY.
(b) In addition to the limitation of liability specified in Section
8.1(a), it is understood and agreed that neither party shall be liable to the
other for money damages in respect of a breach of Section 2 and that PEX's sole
remedy for breach of Section 2 by CHR shall be the termination of this
Agreement.
8.2 Infringement Indemnification. (a) Subject to the provisions of Section
8.4, each party shall defend, indemnify and hold harmless the other party, its
subsidiaries, parent corporations, Affiliates, officers, directors, independent
contractors, partners, shareholders, employees, agents, successors and assigns
from and against any claim, suit, demand, loss, damage, expense (including
reasonable attorney's fees of indemnitee(s) and those that may be asserted by a
third party) or liability (collectively, Losses) arising from or related to an
allegation that the CHR Content, CHR Features or PEx Content or PEx Services, as
the case may be, provided by such party to the other party or a Customer
pursuant to this Agreement infringe or misappropriate any intellectual property
right of any third party.
(b) In addition to its obligations under Section 8.2(a), if any CHR
Content, CHR Features, PEx Content or PEx Services is held to constitute an
infringement or misappropriation of any third party's intellectual property
rights or if in the providing party's opinion, any CHR Content, CHR Features,
PEx Content or PEx Services is, or is likely to be held to constitute, an
infringement or misappropriation, such party will at its expense and option: (i)
procure the right for the other party to continue using the CHR Content, CHR
Features or PEx Content or PEx Services; (ii) replace the CHR Content, CHR
Features or PEx Content or PEx Services with a non-infringing and
non-misappropriating equivalent conforming to the applicable specifications; or
(iii) modify the CHR Content, CHR Features, PEx Content or PEx Services to make
it non-infringing and non-misappropriating while conforming to the applicable
specifications.
8.3 Other Claims. Subject to the provisions of Section 8.4, each of CHR and PEx
(each, an Indemnifying Party) will defend, indemnify and hold harmless the other
party, its subsidiaries, parent corporations, affiliates, officers, directors,
partners, shareholders, employees, agents, and their successors and assigns
(collectively, the Indemnitees) from and against any Losses imposed upon the
Indemnitee(s) by any third party arising from or related to (a) personal injury
or property damage which is proximately caused by any negligence or intentional
misconduct by such Indemnifying Party (or its employees, agents or
representatives) in performing its obligations under this Agreement; (b) any
breach by the Indemnifying Party of the
12
representations, warranties or agreements made by it under this Agreement; or
(c) the promotion, advertisement or marketing of the Indemnitee's Content or
Services by or on behalf of the Indemnifying Party. The foregoing
indemnification action shall not apply in the event and to the extent that a
court of competent jurisdiction determines that such Losses arose as a result of
any Indemnitee's negligence, intentional misconduct or breach of this Agreement.
CHR shall require each of its Affiliates and any third party providers of
logistics services pursuant to this Agreement to indemnify, defend and hold
harmless CHR (and PEx) Indemnitees under the same terms as stated in this
Section 8.3.
8.4 Procedure. To receive the benefit of indemnification under Section 8.2
or 8.3, the party seeking indemnification must promptly notify the other party
in writing of a claim or suit and provide reasonable cooperation (at the
Indemnifying Party's expense) and tender to the Indemnifying Party (and its
insurer) full authority to defend or settle the claim or suit. Neither party has
any obligation to indemnify the other party in connection with any settlement
made without the Indemnifying Party's written consent. The Indemnitee has the
right to participate at its own expense in the claim or suit and in selecting
counsel therefor. The Indemnitee shall cooperate with Indemnifying Party (and
its insurer), as reasonably requested, at Indemnifying Party's sole cost and
expense.
8.5 Insurance. Each party shall procure and maintain insurance or
self-insurance adequate to cover its obligations hereunder and which are
consistent with normal business practices of prudent companies similarly
situated. It is understood that such insurance shall not be construed to create
a limit of either party's liability with respect to its indemnification
obligations under this Section 9. Each party shall provide the other with
written evidence of such insurance (or financial information that describes the
amounts available under any self-insurance facility) upon request. Each party
shall provide the other with written notice at least fifteen (15) days prior to
the cancellation, non-renewal or material change in such insurance or
self-insurance which materially adversely affects the rights of the other party
hereunder. If such party does not obtain replacement insurance or take other
measures that allow it to provide comparable coverage within such 15-day period,
the other party shall have the right to terminate this Agreement effective at
the end of such fifteen (15) day period without notice or any additional waiting
periods.
9. TERM AND TERMINATION.
9.1 Term. This Agreement shall take effect as the Effective Date and shall
remain in effect until the eighteen month anniversary of the Effective Date,
unless sooner terminated in accordance with Section 9.2 or extended in
accordance with this Section 9.1. Thereafter, this Agreement shall automatically
renew for successive 12-month terms unless either party notifies the other party
at least thirty (30) days prior to the expiration of the then current term that
it does not wish to renew this Agreement for an additional term.
9.2 Termination. Either party may terminate this Agreement at any time
upon thirty (30) days notice to the other party in the event that the other
party shall have breached any of its material obligations hereunder and shall
not have cured such default prior to the expiration of the thirty (30)-day
period. In addition, either party shall have the right to terminate this
Agreement upon thirty (30) days notice if a Force Majeure condition has
prevented performance by the other party for more than one hundred twenty (120)
days. The parties may also terminate this Agreement at any time upon mutual
written agreement of the parties.
9.3 Effect of Termination. (a) Upon termination (including expiration) of
this Agreement:
(i) CHR and PEx will terminate all tasks for all effected Customer in an
orderly manner, as soon as practical or in accordance with a schedule agreed
to by PEx and CHR to minimize disruption to customers;
(ii) each party shall return to the other party or certify in writing to
the other party that it has destroyed all documents and other tangible items
it or its employees or agents have received or created pertaining, referring
or relating to the Confidential Information of the other party;
13
(iii) each party shall discontinue making any representation regarding its
status as a "Preferred Provider" for the other party and shall cease
conducting any activities with respect to the joint marketing, promotion,
sale or distribution of the PEx Services and CHR Services;
(iv) Each party will discontinue any and all use of trade names and/or
trademarks authorized for use under this Agreement, except as necessary to
fulfill its obligations to customers in accordance with this Section 9.3;
(v) PEx will discontinue any and all use of the licenses granted under
Section 5.5, except as necessary to fulfill its obligations to customers in
accordance with this Section 9.3; and
(vi) each party will return to the other party or certify in writing to
the other party that it has destroyed all documents and other tangible items
it or its employees or agents have received or created pursuant to this
Agreement pertaining, referring or relating to the Confidential Information
of the other party, except that each party may retain one (1) complete copy
of Confidential Information (1) for use in accordance with Sections 9.3(a)(i)
and 9.3(v) and (2) for archival purposes to assure compliance with this
Agreement.
(b) Termination of this Agreement by either party for any reason shall not
affect the rights and obligations of the parties that accrued prior to the
effective date of termination of this Agreement or release either party from
obligations to resell or license CHR Services made prior to the date of
termination, or affect existing licenses or purchase orders for the CHR
Services. Notwithstanding any provision of this Agreement to the contrary, each
party may continue to exercise the rights and licenses granted hereunder to the
extent necessary to allow such party to fulfill its obligations under existing
engagement agreements or included in any proposal to a Customer that was
outstanding at the time of termination. PEx specifically:
(i) may continue to market and use the CHR Services for a period of not
more than ninety (90) days following the date of termination to meet any
obligations or services that PEx has undertaken with respect to customers as
of the date of termination;
(ii) shall continue to have the right to use and access the CHR Content
and CHR Features (including all documentation and related technical
information and support) to fulfill its obligations to customers for a period
of not more than ninety (90) days following the date of termination.
(c) The provisions of Sections 6.1-6.5, 4.6(a), 7, 8, 9 and 10 shall
survive any expiration or termination of this Agreement (except that Sections
6.4-6.5 and 4.6(a) may subsequently terminate in accordance with the provisions
of Section 8.3(a)-(b)). Neither party shall be entitled to damages resulting
from the termination of this Agreement in accordance with this Section 9.
Subject to the provisions of Section 6, in no event shall either party be
precluded from developing for itself, or acquiring from third party(ies),
materials and services that are competitive with the materials and services
provided by the other party upon any expiration or termination of this
Agreement.
10. General Provisions.
10.1 Issue Resolution. In the event that any dispute arises relating to
this Agreement, the Representatives shall promptly meet and attempt to resolve
same through good faith discussions. If the Representatives are unable to
resolve any dispute to their mutual satisfaction within thirty (30) days after
they commence discussions regarding same, and do not agree to extend the time
for resolution of the issue at the end of their meeting, then they may by mutual
agreement: (a) escalate the matter to higher levels in their organizations and,
(b) if necessary, resort to a mutually agreed alternative dispute resolution
technique prior to resorting to litigation. In the event that the parties resort
to alternative dispute resolution or litigation to resolve any matter, the
successful or prevailing party shall be entitled to recover its reasonable
attorneys' fees and other costs incurred in connection with such action, suit or
proceeding, in addition to any other relief to which such party may be entitled.
14
10.2 Governing Law. This Agreement shall be governed and construed in
accordance with the substantive laws of the Commonwealth of Massachusetts
without regard for any choice or conflict of laws rule or principle that would
result in the application of the substantive law of any other jurisdiction.
10.4 Amendment and Waiver. No provision of or right under this Agreement
shall be deemed to have been waived by any act or acquiescence on the part of
either party, its agents or employees, but only by an instrument in writing
signed by an authorized officer of each party. No waiver by either party of any
breach of this Agreement by the other party shall be effective as to any other
breach, whether of the same or any other term or condition and whether occurring
before or after the date of such waiver.
10.5 Independent Contractors. Each party represents that it is acting on
its own behalf as an independent contractor and is not acting as an agent for or
on behalf of any third party. This Agreement and the relations hereby
established by and between CHR and PEx do not constitute a partnership, joint
venture, franchise, agency or contract of employment. Neither party is granted,
and neither party shall exercise, the right or authority to assume or create any
obligation or responsibility on behalf of or in the name of the other party or
its Affiliates.
10.6 Assignment. Neither party may assign its rights or obligations
hereunder without the prior written consent of the other party, which consent
shall not be unreasonably withheld; provided that the proposed assignee under
this Section 10.6 agrees in writing to assume all of the obligations of the
assignor party under this Agreement.
10.7 Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
10.8 Notices. Unless otherwise provided herein, any notice, report,
payment or document to be given by one party to the other shall be in writing
and shall be deemed given when delivered personally or mailed by certified or
registered mail, postage prepaid (such mailed notice to be effective on the date
which is three (3) business days after the date of mailing), or sent by
nationally recognized overnight courier (such notice sent by courier to be
effective one business day after it is deposited with such courier), or sent by
telefax (such notice sent by telefax to be effective when sent, if confirmed by
certified or registered mail or overnight courier as aforesaid):
If to PEx:
XxxxxXxxxxxxx.xxx, LLC
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Chief Executive Officer
Phone: 000.000.0000
Fax: 000.000.0000
If to CHR:
X.X. Xxxxxxxx Worldwide, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxx, XX 00000-0000
Attn: Corporate Vice President, Transportation
Phone: 000.000.0000
Fax: 000.000.0000
or to such other place as any party may designate as to itself by written notice
to the other party.
10.9 Severability. In the event any provision of this Agreement shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other term or
provision hereof. The parties agree that they will negotiate in good faith or
will permit a
15
court or arbitrator to replace any provision hereof so held invalid, illegal or
unenforceable with a valid provision which is as similar as possible in
substance to the invalid, illegal or unenforceable provision.
10.10 Conflict or Inconsistency. In the event of any conflict or
inconsistency between the terms and conditions hereof and any terms or
conditions set forth in any purchase order or other document relating to the
transactions contemplated by this Agreement, the terms and conditions set forth
in this Agreement shall prevail.
10.11 Captions. Captions of the sections and subsections of this Agreement
are for reference purposes only and do not constitute terms or conditions of
this Agreement and shall not limit or affect the meaning or construction of the
terms and conditions hereof.
10.12 Word Meanings. Words such as herein, hereinafter, hereof and
hereunder refer to this Agreement as a whole and not merely to a section or
paragraph in which such words appear, unless the context otherwise requires. The
singular shall include the plural, and each masculine, feminine and neuter
reference shall include and refer also to the others, unless the context
otherwise requires.
10.13 Entire Agreement. The terms and provisions contained in this
Agreement (including the Attachments) constitute the entire understanding of the
parties with respect to the transactions and matters contemplated hereby and
supersede all previous communications, representations, agreements and
understandings relating to the subject matter hereof. No representations,
inducements, promises or agreements, whether oral or otherwise, between the
parties not contained in this Agreement or incorporated by reference in this
Agreement shall be of any force or effect. No agreement or understanding
extending this Agreement or varying its terms (including any inconsistent terms
in any purchase order, acknowledgment or similar form) shall be binding upon
either party unless it is in a writing specifically referring to this Agreement
and signed by the duly authorized representative of the applicable party.
10.14 Rules of Construction. The parties agree that they have participated
equally in the formation of this Agreement and that the language and terms of
this Agreement shall not be construed against either party by reason of the
extent to which such party or its professional advisors participated in the
preparation of this Agreement.
10.15 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. In making proof of this
Agreement, it shall not be necessary to produce or account for more than one
such counterpart. A facsimile copy of this Agreement, including the signature
pages hereto, shall be deemed an original.
10.16 Force Majeure. Except as otherwise provided in this Agreement, in
the event that a delay or failure of a party to comply with any obligation,
other than a payment obligation, created by this Agreement is caused by a Force
Majeure condition, that obligation shall be suspended during the continuance of
the Force Majeure condition.
10.17 Further Assurances. Each party covenants and agrees that, subsequent
to the execution and delivery of this Agreement and without any additional
consideration, it will execute and deliver any further legal instruments and
perform any acts which are or may become reasonably necessary to effectuate the
purposes of this Agreement.
Both parties represent that they have read this Agreement, understand it, and
agree to be bound by the terms and conditions stated herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized officers, and have duly delivered and
executed this Agreement under seal as of the date first set forth above.
16
XXXXXXXXXXXXX.XXX, LLC X.X. XXXXXXXX WORLDWIDE, INC.
By: /s/ Xxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxx
------------------ -----------------
Name: Xxx X. Xxxxxxx Name: Xxxxx Xxxxxx
--------------- ---------------
Title: Vice President, Title: VP of Transportation
Business Development ---------------------
---------------------
Attachment A: Milestone Schedule
Attachment B: Final Specifications: [to be supplied]
Attachment C: CHR logo; PEx logo[to be supplied]
Attachment D: CHR Services Price List; Form of CHR Services Service Agreement
[to be supplied]
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*Attachment A*
*Milestone Schedule*
*****
* Confidential Treatment Requested: material has been omitted and filed
separately with the Commission.
18
