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EXHIBIT 10.5
FLEET SERVICE AGREEMENT
THIS FLEET SERVICE AGREEMENT (this "Agreement") is entered into as of
April 1, 1998 (the "Effective Date") by and between Park 'N View, Inc., a
Delaware corporation ("PNV"), with its headquarters at 00000 XX 00xx Xxxxxx,
Xxxxx Xxxxxxx, Xxxxxxx 00000 and Top Gun Transport Inc., an Indiana corporation
("Fleet"), with its headquarters at Clarksville, Indiana.
WHEREAS, Fleet currently employs or has contracted for the services of
professional truck drivers to operate its fleet of trucks; and
WHEREAS, PNV has designed and developed the concept and equipment to:
(a) enable truck drivers to receive and/or have access to cable television
services and telecommunications services; and (b) make available to such truck
drivers programming consisting of video and audio services, and telephone, voice
mail, fax or other data transmission services while remaining in their vehicles
parked at truckstops; (collectively, the "Services"); and
WHEREAS, PNV provides the Services to truck drivers through a
membership program pursuant to which each member is entitled to use the Services
at each truckstop at which they are provided in return for a monthly membership
fee; and
WHEREAS, Fleet desires to purchase and PNV desires to provide
membership to certain of Fleet's drivers.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, Fleet and PNV (hereinafter collectively being referred to as
the "Parties"), intending to be legally bound, hereby mutually agree as follows:
1. Purpose. The Parties hereby agree that PNV shall provide and
Fleet shall purchase memberships for certain of Fleet's drivers pursuant to the
terms of this Agreement.
2. Number of Memberships-Drivers. Fleet desires to purchase from
PNV 25 memberships for use by certain of its professional truck drivers. Upon
execution of this Agreement, Fleet shall provide PNV with the name and CDL
number of each such driver to enable PNV to activate each driver's membership.
Fleet shall provide to PNV, on or before the twenty-fifth (25th) day of each
month, the name and CDL number of any driver to be added to or deleted from the
list of drivers for whom Fleet shall purchase a membership. If Fleet does not
provide PNV with an updated list on a timely basis, PNV shall issue memberships
for the following month based upon the most recent list provided by Fleet.
Notwithstanding anything contained herein to the contrary, the minimum number of
memberships to be purchased by Fleet each month during the Term (as defined in
Section 4(a)) shall be 25.
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3. Fees.
(a) Fleet agrees to pay to PNV a fee of (see Schedule I)
per month (plus applicable taxes) for each membership purchased by Fleet
(collectively the "Monthly Fee"). PNV shall invoice Fleet for the Monthly Fee on
the first day of each month for the purchase of memberships for its drivers for
that month. Fleet shall pay the Monthly Fee to PNV on or before the tenth (10th)
day of the month. Monthly Fees not paid on or before the tenth (10th) day of the
month shall accrue interest at the rate of 1.5% per month until paid in full and
PNV may terminate the membership of Fleet's drivers if the Monthly Fee is not
received by the last day of the month. If Fleet desires to terminate the
membership of any driver, PNV shall reissue such membership to a substitute
driver upon receipt of (i) the terminated drivers name and CDL member and (ii)
the substitute drivers name and CDL number. If Fleet desires to purchase
memberships for additional drivers effective during the month (as opposed to the
first day of the month), PNV shall, upon receipt of the additional drivers name
and CDL number, activate such membership at no cost to Fleet for the remainder
of that month but shall not provide the driver with any free long distance
service for that month. On the first day of the following month, PNV shall
commence charging Fleet the Monthly Fee and provide the driver with full
membership privileges, including any applicable free long distance phone
service.
(b) Notwithstanding the terms of Section 4(a), Fleet may
terminate this Agreement at any time within ninety (90) days of the Effective
Date by delivery to PNV of written notice of termination within such ninety (90)
day period. If Fleet terminates this Agreement in compliance with this Section
3(b), Fleet shall be entitled to a refund of all monies paid to PNV as of the
date of termination.
4. Term.
(a) Subject to Sections 3(b) and 5, the term of this
Agreement shall be for a period of one (1) year commencing on the Effective Date
(the "Term"). The Term shall be automatically extended for additional one year
renewal periods provided that either Party may prevent such automatic renewal by
delivery of written notice to the other Party at least thirty (30) days prior to
the end of the then current agreement.
(b) Except as provided in Section 3(b), upon termination
of the Agreement for any reason, PNV shall be entitled to retain without offset
or repayment all amounts paid to PNV by Fleet as of the date of termination.
5. Breach. In the event that either Party shall fail in any
material respect to perform any obligation under this Agreement, the other Party
may in writing notify the non-performing Party that such failure constitutes a
breach. If the breach is not remedied or cured within ten (10) days following
receipt of the notice of breach, without limiting any other remedy which may be
available, the non-breaching Party may terminate this Agreement by notice to the
breaching Party.
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6. Arbitration. Any controversy, dispute or question arising out
of, or in connection with, or in relation to this Agreement or the
interpretation, performance or non-performance or any breach thereof shall be
determined by arbitration conducted in Ft. Lauderdale, Florida in accordance
with the then existing rules of the American Arbitration Association. PNV and
Fleet shall each select one arbitrator, and the two arbitrators shall select a
third with the same qualifications. Any decision rendered shall be binding upon
the Parties, however, the arbitrators shall have no authority to grant any
relief that is inconsistent with this Agreement. The expense of arbitration
shall be borne by the non-prevailing Party.
7. General Provisions.
(a) Notices. All notices required or permitted hereunder
shall be in writing and, may either be delivered by overnight courier,
transmitted by facsimile, or delivered by the United States Mail, postage
prepaid, addressed as follows:
To PNV: Park 'N View, Inc.
00000 XX 00xx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
Attn: Fleet Sales Department
Fax Number: (000) 000 0000
To Fleet: Top Gun Transport Inc.
0000 Xxxxxxx 00
Xxxxxxxxxxx, XX 00000
Attn: Xxx X'Xxxxxx
Fax: (000) 000-0000
Mailing Address:
X.X. Xxx 000
Xxxxxxxxxxx, XX 00000
All notices shall be deemed delivered only upon actual receipt. Any party may
change its address for purposes of this Agreement by giving notice of such
change to the other parties pursuant to the terms of this Section 7(a).
(b) Miscellaneous. The section headings in this Agreement
are for convenience of reference only and shall not be deemed to alter or affect
any provision hereof. This Agreement shall not be modified or amended except by
an instrument in writing executed by the parties to this Agreement. Except as
required by law, the Parties agree to keep the terms and provisions of this
Agreement and all information received by either Party pursuant to this
Agreement strictly confidential. This Agreement shall apply to, and be binding
upon, the parties and their respective successors and permitted assigns. If any
part or sub-part of this Agreement is found or held to be invalid, that
invalidity shall not affect the enforceability and
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binding nature of any other part of this Agreement. This Agreement may be
executed in one or more counterparts, each of which when so executed shall be
deemed to be an original and all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, Fleet and PNV have caused this Agreement to be
executed pursuant to appropriate legal authority duly given, as of the day and
year first above written.
PARK 'N VIEW, INC., a
Delaware corporation
By: /s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx, President
Fleet: TOP GUN TRANSPORT
0000 Xxxxxxx 00
Xxxxxxxxxxx, XX 00000
By: /s/ Xxx X'Xxxxxx
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Title: Owner
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SCHEDULE I
Company: Top Gun Transport Inc.
$10.00 per driver per month up to 100 PNV locations
$20.00 per driver per month up to 125 PNV locations
$30.00 per driver per month over 126 PNV locations
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