NETWORK ACCESS SERVICES AGREEMENT BETWEEN
IDLING SOLUTIONS, L.L.C. AND SIRICOMM, INC.
This Agreement is by and between SiriCOMM, Inc, a Delaware Corporation,
hereinafter referred to as "SiriCOMM", and Idling Solutions, LLC a Texas
Corporation and its affiliates, hereinafter "Idling Solutions". This agreement
is made on this 7 day of February, 2005.
Whereas SiriCOMM is in the business of providing broadband network access and
delivering software services including but not limited to InTouch, Beacon,
Pulse, vehicle diagnostics, driver performance diagnostics, and other operations
and safety tools.
WHEREAS Idling Solutions desires to obtain from SiriCOMM network access for the
purpose of collecting and transmitting data related to but not limited to
vehicle emission credits, and equipment warranty, and charging profiles.
WHEREAS SiriCOMM is willing and able to provide such network access; and
WHEREAS SiriCOMM and Idling Solutions desire to co-develop, co-market, and
co-sell products and services using their combined products, equipment and
spectrum.
NOW THEREFORE, the parties hereto covenant and agree as follows:
1. GENERAL. During the term of this Agreement Idling Solutions shall use
SiriCOMM as its exclusive satellite network provider. Through the
DirecTruck (PULSE Box) vehicle interface to the SiriCOMM Network,
SiriCOMM shall transmit to Idling Solutions all data necessary for the
operation, maintenance, and warranty service of the Idling Solutions
product lines. Any data transmission or other requirements of SiriCOMM
to fulfill its obligation under this agreement shall not in any way
limit or otherwise interfere with the products and services provided by
SiriCOMM. The parties further agree that as market conditions, the
regulatory environment, and business conditions warrant that they may
collaborate to develop new products, services, or improvements on
existing offerings. SiriCOMM herein grants exclusive data transport
rights to Idling Solutions as it relates to the services provided
herein.
2. TERM.. The "Initial Term" shall begin on the date hereof, (the
"Effective Date"), and end upon the completion of sixty (60) months.
This Agreement will be automatically extended ("Extended Term") on a
year to year basis upon the expiration of the Initial Term, unless
either party has delivered written notice of its intent to terminate the
Agreement at least ninety (90) days prior to the end of the Initial
Term. Either party may terminate this Agreement during the Extended
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Term upon ninety (90) days prior written notice. Term shall mean the
Initial Term and the Extended Term.
3. PRICING AND TERMS. Idling Solutions shall pay to SiriCOMM the amount of
$* per month per active truck for the first 100,000 trucks and $* per
month per active truck for the next 100,000 trucks. At such time as
Idling Solutions has more than 200,000 trucks receiving SiriCOMM
service, the parties shall enter into good faith negotiations for new
pricing for subsequent sales, but under no circumstances will it exceed
$* per truck. SiriCOMM shall invoice Idling Solutions monthly for all
charges under this Agreement. All invoices will be payable within
thirty (30) days of receipt of invoice. Delinquent payments are subject
to a late payment charge at the annualized rate of prime plus four
percent computed monthly, or portion thereof, of the amount due but not
to exceed the maximum lawful rate. In the event Idling Solutions shall
fail to pay SiriCOMM any amount due unless it is disputed under this
Agreement, for a period of forty (40) days, SiriCOMM, in addition to
charging applicable delinquency fees, may discontinue providing
services to Idling Solutions upon seven (7) days prior written notice.
4. IDLING SOLUTIONS CONNECTION TO THE NETWORK. Idling Solutions shall
provide, at its own expense, the telecommunications circuit for its
connection to the public Internet to receive and deliver packets from
Idling Solutions' Ethernet switch to the SiriCOMM satellite network.
5. USE OF THE INTERNET. Because Idling Solutions may connect to SiriCOMM
utilizing the public Internet, which is not managed or controlled by
either Party, both Parties acknowledge and agree that neither Party
shall be held responsible for failure of the public Internet or damages
caused by such failure.
6. QUALITY OF SERVICE AND SERVICE LEVEL AGREEMENT (SLA).
Scope: Through the use of its nationwide data network, SiriCOMM will provide
data services to Idling Solutions in support of its product(s). SiriCOMM will
transmit and receive that information consistent with the efficient, timely
support of the Idling Solutions' operations and warranty services. The SiriCOMM
network and SiriCOMM's Network Operating Center (NOC) is designed for full
redundancy and highly reliable operations. The purpose of this SLA is to
describe the SiriCOMM network support services activities and to define the
minimum service levels that SiriCOMM will deliver on behalf of Sat-Net.
Network Support:
Operations. SiriCOMM will be responsible for the activities of its NOC at its
sole expense. The NOC will be operational 24 hours per day x 7 days per week.
The NOC activities shall include monitoring of SiriCOMM's service, equipment,
trouble-ticket
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assignments, and satellite backhaul status. In addition, the NOC will provide
customer service for both enterprise clients (Idling Solutions) as well as
retail clients (drivers and fleets) using a customer call center.
Personnel. SiriCOMM will maintain a staff of qualified technical support
personnel who are properly trained and are duly qualified to provide appropriate
levels of assistance, diagnostics, and repair/support. SiriCOMM's staff will be
available 24 x 7 by telephone or e-mail. In the event that the problem cannot be
diagnosed and corrected by the first level service personnel, the trouble-ticket
will immediately be escalated to the appropriate systems and software engineers
for resolution. The SiriCOMM NOC will respond to, track, and close all
trouble-tickets to include those requiring vendor support. A satellite outage,
for example, will require coordination with the satellite provider's NOC for
resolution in accordance with the SLA between SiriCOMM and the satellite
provider.
System Maintenance. SiriCOMM expects, but does not guarantee, that system
maintenance normally will not result in service interruptions. If system
maintenance should result in the interruption of service, to the extent possible
it shall be accomplished only after prior notification to Idling Solutions and
will be completed within a four (4) hours . SiriCOMM shall use reasonable
efforts to give Idling Solutions such prior notice.
On-Site Tasks. Situations may arise that require on-site attention. If SiriCOMM
is unable to remotely diagnose and repair a software and/or equipment fault,
SiriCOMM's technical staff will dispatch repair personnel as expeditiously as
possible and in no case beyond the terms of the satellite SLA as defined in this
document.
Service Levels:
General. It is SiriCOMM's intent to provide Idling Solutions with both the site
availability and data throughput necessary to meet both its current and future
data transmission needs. It is initially believed that the data streams required
by Idling Solutions are of such size and frequency that they fall inside the
design criteria of the SiriCOMM data network. The parties agree to routinely
(particularly in initial operations) evaluate plan versus actual data load in
order to adjust and/or optimize the data transmitted, its scheduled
transmissions, etc.
Points of Contact. Requests for technical support shall be made by telephone,
e-mail, or fax. The contact information is as follows:
Address SiriCOMM, Inc. NOC
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Telephone
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SiriCOMM Network Access Services Agreement 3 of 3
SiriCOMM Network Access Services Agreement SiriCOMM, Inc.
Fax (▇▇▇) ▇▇▇-▇▇▇▇
E-mail support@,▇▇▇▇▇▇▇▇.▇▇▇
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Hours of Operations 24 x 7
Trouble-Ticket. When service is requested from any source, an electronic
trouble-ticket will be generated in the SiriCOMM CRM (Concord) system. Issues
related to configuration, reboot, and similar problems will be resolved
immediately/online, success feedback delivered, and the trouble-ticket closed
out. More complex software-related fixes will also be completed same day and
will be closed out on a trouble-ticket in the same manner.
Hardware. Problems related to network hardware will be resolved same day using
remote network commands if possible. Hardware outages may arise that require
on-site attention. Whenever possible, the NOC will request 1st level equipment
maintenance from on-site personnel to expedite repairs. As necessary, SiriCOMM
may call upon third party contractors to perform required tasks. The use of such
contractors shall be monitored by the SiriCOMM NOC and supported at all times by
the SiriCOMM technical staff. All such repairs shall be at SiriCOMM's expense.
Same Day Service. In accordance with the SLA between SiriCOMM and its satellite
provider, SiriCOMM will provide the same day maintenance services for each local
site within the following limits:
Maintenance Days Monday through Friday
Hours 0800-1700 local time
Arrival 5 hour response time with carryover
Hardware/Parts If SiriCOMM is unable to complete such
maintenance due to parts unavailability and
through no fault of its own, its maintenance
obligation shall be delayed until the parts
become available via most expedient transit
mode. Such maintenance shall then be
completed within the timeframe outlined
above.
SiriCOMM shall provide Idling Solutions prompt notification of any SiriCOMM
Network outages that may affect Idling Solutions. This Service Level should
support 99.5% Network Availability during fifty-two (52) consecutive weeks and
the Network Packet Loss should not exceed an average of 2% during any calendar
month. The Mean Time to Respond (MTTR) shall be two (2) Hours or better for all
network outages or network problems; and the Mean Time To Repair (MTTR) shall be
four (4) Hours or better. SiriCOMM will be held liable for missing the
above-mentioned SLA and the Customer will be eligible to receive a one (1) day
credit for each outage or package loss problem. If SiriCOMM does purchase
Property and Casualty insurance for locations, Idling Solutions will be named a
beneficiary. To insure that Idling Solutions has
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protection against business interruptions as a result of action or inaction of
SiriCOMM such as bankruptcy or failure to perform under this paragraph or this
contract, SiriCOMM will assist Idling Solutions in obtaining loss of income
insurance for the Idling Solutions customer base. This assistance will include
but not be limited to assisting Idling Solutions to obtain for SiriCOMM access
points "back-up" leases for its ▇▇▇ ▇▇▇ equipment at all locations. Idling
Solutions, upon ninety (90) days written notice, reserves the right to remove
its 915 MHz equipment from the SiriCOMM access point. SiriCOMM will make
available to Idling Solutions a software license agreement for the software
developed by SiriCOMM to control the 915-MHz equipment so that Idling Solutions
may re-deploy its own 915 MHz network.
7. ENHANCEMENTS TO SIRICOMM SYSTEM. SiriCOMM from time to time may enhance
or modify the SiriCOMM System and may change the hardware and/or
software comprising the SiriCOMM System and migrate processing for or
on behalf of Idling Solutions to such new hardware and/or software. In
addition, SiriCOMM from time to time shall offer optional functions,
services and equipment to Idling Solutions on or before the time
SiriCOMM generally offers such functions, services or equipment to any
of its other actual or potential customers at such fees, terms and
conditions as may be mutually agreed upon. Idling Solution's use of any
such optional function, service or equipment will constitute agreement
to such agreed upon fees, terms and conditions. SiriCOMM will ensure
that the Services provided by SiriCOMM to Idling Solutions are not
materially adversely affected by any such enhancements, modification or
changes or by any such optional functions, services or equipment.
8. PROPRIETARY RIGHTS. Idling Solutions acknowledges and agrees that, as
between the Parties, the SiriCOMM System will be and remain the
property of SiriCOMM and that the SiriCOMM System constitutes and
includes trade secrets and proprietary and confidential information of
SiriCOMM. Idling Solutions will, and will allow its employees, agents,
and Users to, access and use the SiriCOMM System only for the purposes
contemplated by this Agreement. In addition, Idling Solutions will not,
and will not allow its employees, agents, or Users to, copy, duplicate,
reproduce, de-compile, reverse engineer, re-engineer, modify, or
disclose in any form the SiriCOMM System or any portion thereof. Upon
termination of this Agreement for any reason, Idling Solutions will
promptly return to SiriCOMM any material relating to the SiriCOMM
System that may be in Idling Solutions' possession or control.
9. CO-MARKETING AND SALES. Because of the inter-related attributes, both
current and future, of the SiriCOMM and Idling Solutions products and
services, it is in the best interests of the parties to be Value-Added
Resellers (VARs) of each other's products and services. The parties
agree to execute and comply with the provisions of the "Independent
Sales Representative Agreements", marked Exhibits and , attached hereto
and incorporated herein by reference.
10. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING CONTAINED IN THIS
AGREEMENT TO THE CONTRARY, THE PARTIES AGREE THAT NEITHER PARTY SHALL
IN ANY EVENT BE LIABLE TO
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THE OTHER PARTY OR ANY OTHER PERSON FOR ANY ACTUAL, DIRECT, INDIRECT,
CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE OR ANY OTHER
DAMAGES OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER,
REGARDLESS OF THE FORESEEABILITY THEREOF, ARISING OUT OF THE PROVISION
OF ACCESS OR IN ANY WAY ARISING OUT OF THIS AGREEMENT, WHETHER IN AN
ACTION ARISING OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, DELAY,
NEGLIGENCE, STRICT TORT LIABILITY, PATENT MATTERS, OR ANY OTHER THEORY.
NO ACTION OR PROCEEDING AGAINST EITHER PARTY MAY BE COMMENCED DURING OR
AFTER THE SERVICES ARE RENDERED.
11. WARRANTIES EXCLUED. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SiriCOMM MAKES
NO WARRANTIES IN CONNECTION WITH ITS NETWORK OR THE PROVISION OF ACCESS
AS CONTEMPLATED HEREIN, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR
IMPLIED, INCLUDEING WITHOUT LIMITATION THE WARRANTY OF FITNESS FOR A
PATRICULAR PURPOSE OR USE.
12. FORCE MAJEURE. SiriCOMM shall not be liable for failure to fulfill its
obligations hereunder if such failure is due to causes beyond its
control, including, without limitations, acts of God, fire,
catastrophe, governmental prohibitions or regulations, viruses which
did not result from the acts or omissions of SiriCOMM, its employees or
agents, national emergencies, insurrections, riots or wars, or strikes,
lockouts, work stoppages or other labor difficulties. The time for any
performance required hereunder shall be extended by the delay incurred
as a result of such act of force majeure, and SiriCOMM shall act with
diligence to correct such force majeure.
13. BENEFITS AND ASSIGNMENT. Neither party hereto shall assign this
Agreement, in whole or in part, whether by operation of law or
otherwise, without the prior written consent of the other party hereto.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns as
permitted hereunder. No person or entity other than the parties hereto
is or shall be entitled to bring any action to enforce any provision of
this Agreement against any of the parties hereto, and the covenants and
agreements set fort in this Agreement shall be solely for the benefit
of, and shall be enforceable only by, the parties hereto or their
respective successors and assigns as permitted hereunder.
14. TERMINATION. Either party may terminate this Agreement if the other
party has materially breached this Agreement and has failed to cure
such breach within thirty (30) days after having received written
notice of such breach.
15. DISPUTE RESOLUTION. Any dispute or claim in law or equity arising out
of this Agreement shall be decided by binding arbitration held in and
in accordance with the applicable rules of the American Arbitration
Association, and shall be
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heard in the city where the respondent party has its principal place of
business or as near thereto as is practicable. Judgment upon any award
rendered may be entered in any court having jurisdiction. The parties
shall have the right of discovery in accordance with the laws of the
state wherein such arbitration is to be heard. The filing of a judicial
action to enable the recording of a notice pending action, for order of
attachment, receivership, injunction or other provisional remedies,
shall not constitute waiver of the right to arbitrate under this
provision. Should either party seek to enforce the provision of this
memorandum or any arbitration award against the other, the prevailing
party shall be entitled to an award of reasonable attorney's fees,
arbitration filing and forum costs and court costs incurred.
16. NOTICES. Notices under this agreement shall be sent by both electronic
facsimile and registered postal mail to one of the following addresses:
If to Idling Solutions: If to SiriCOMM:
Idling Solutions, L.L.C. SiriCOMM, Inc.
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BOTH PARTIES REPRESENT AND WARRANT THAT THEY HAVE FULL CORPORATE POWER AND
AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM THEIR OBLIGATIONS
HEREUNDER, AND THAT THE PERSON WHOSE SIGNATURE APPEARS BELOW IS DULY AUTHORIZED
TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE PARTY.
IN WITNESS WHEREOF, THE PARTIES HAVE ENTERED INTO THIS AGREEMENT AS OF THE DATE
SET FORTH ABOVE:
SiriCOMM, Inc. Idling Solutions, L.L.C.
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By By
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President Managing Member
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ATTACHMENT A
"INDEPENDENT SALES REPRESENTATIVE AGREEMENTS"
attach executed agreements with pricing, commission., and other schedules
SiriCOMM Network Access Services Agreement 9 of 9
