SERVICE AGREEMENT BETWEEN LOVE'S TRAVEL STOPS AND
COUNTRY STORES, INC AND SIRICOMM, INC
This Agreement entered into this 4th day of October 2005 between
SiriCOMM, Inc. ("SiriCOMM"), a Delaware corporation having its principal place
of business at 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, and Love's
Travel Stops and Country Stores, Inc. ("Love's") an Oklahoma company, having its
principal place of business at 00000 Xxxxx Xxxxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx,
XX 00000.
WHEREAS, SiriCOMM is in the process of developing a broadband wireless
network infrastructure for the commercial transportation industry market that
will allow users to connect to the SiriCOMM network through wireless
transmission and receiving equipment installed in strategic locations that will
include, but not be limited to, travel centers and weigh stations.
NOW THEREFORE, for and in consideration of the premises, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Term. The "Initial Term" shall begin on the date hereof, (the
"Effective Date"), and end upon the completion of 36 months. The 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 Term upon sixty (60) days prior written notice. Term shall mean the
Initial Term and the Extended Term.
2. Infrastructure. SiriCOMM shall be responsible for installation of
the broadband data network in each of the approximately 110 Love's Travel Stops
locations, all at its sole expense. Sole expense to include but not limited to
required changes to the Love's building and electrical power. As Love's adds new
facilities, SiriCOMM will install network equipment and have the network 100%
functional by the opening day of business. Love's will notify SiriCOMM 120 to
180 days prior to the new facility opening to provide both parties time to
prepare for the installation of the network. Components at each location shall
include: a two-way VSAT dish with receiver/transmitter (1.2 meters in diameter),
satellite router, remote server, wireless transmission equipment including
Wireless-Fidelity (Wi-Fi) access points, wiring, and all other necessary
equipment and software (the "Equipment") to render the network serviceable.
3. Installation. It is anticipated between the parties that network
installation shall commence immediately following the execution of this
Agreement. The details will be mutually agreed upon following a meeting to
discuss the process.
4. Equipment Ownership. Love's acknowledges that the Equipment shall at
all times remain the property of SiriCOMM and agrees not to adjust, operate,
modify, move, or affect in any way the Equipment without prior approval from
SiriCOMM. All equipment will be removed within 60 days of the termination of
this agreement or Love's may charge SiriCOMM a storage fee of $2.00 each day for
each location in which the equipment has not been removed until such time that
the equipment has been removed.
5. Operations. SiriCOMM will be responsible for the activities of the
Network Operations Center (NOC) at its sole expense. The NOC activities shall
include 24/7 monitoring of service, network maintenance, and a customer service
center. The 24x7 customer service number is 800.851.6952. Should maintenance
personnel be necessary at a Love's facility, such maintenance shall be the sole
responsibility of SiriCOMM.
6. On-Site Tasks. Situations may arise that require on-site attention.
If SiriCOMM is unable to coordinate timely on-site maintenance, SiriCOMM may
call upon third party contractors to perform required tasks. In the event
SiriCOMM has to make use of third party contractors, the complete task will be
monitored and supported at all times by SiriCOMM technical staff. Love's agrees
that store personnel will provide reasonable assistance to SiriCOMM support
personnel with troubleshooting issues such as checking cable and power
connections and powering equipment on and off if necessary.
7. Broadband Connectivity. SiriCOMM will be responsible for providing
broadband access at each location at its sole expense.
8. Facility Access. Love's will assure to SiriCOMM reasonable access to
its Travel Stops facilities to install and maintain the Equipment. SiriCOMM will
install a VSAT dish on the facility roof (where applicable) and will install its
VSAT router, server and wireless transmission equipment inside the facility in
such manner that the installation is unobtrusive to Love's employees and
customers. SiriCOMM agrees that it will operate its equipment in a manner which
will not interfere with Love's existing communication systems or the existing
equipment of any other tenant sharing the use of this location, and Love's
covenants with SiriCOMM that it shall not permit the location of any equipment
upon the premises which would provide harmful interference with SiriCOMM
equipment. Love's shall require that all future operators designed to use this
location will first coordinate with SiriCOMM to ensure that their frequencies
and antenna locations will be compatible with SiriCOMM's so as to prevent future
harmful interference. If SiriCOMM cannot satisfactorily eliminate such
interference, then Love's will not allow the radio operator to place radio
equipment on the premises.
9. Power Back-up. SiriCOMM shall provide its own Power back up and
surge protectors for all of its equipment.
10. Emergency Network Service. SiriCOMM shall provide at no cost to
Love's, emergency network service access (redundancy) as stand-in for Love's
terrestrial data network when/if the network has an outage. Love's will be
responsible for all costs associated with developing such redundancy to include,
software and/or hardware that is necessary to enable the redundant network
capability. The redundancy provided by SiriCOMM will be limited to a reasonable
amount of time, not to exceed a 5-day period for Love's terrestrial based
network to be repaired and all services transitioned back to the original form.
11. Signage. Love's, to the extent it may legally do so, will make
available visible space at each of its properties for SiriCOMM to present
signage and/or other marketing materials related to SiriCOMM services and
network access. SiriCOMM will provide at its cost the signage and installation
and remove of said signage.
12. Marketing. Love's and SiriCOMM will jointly develop and execute
mutually beneficial marketing, communications, and promotional activities. Such
activities will consist of direct telephone and mail marketing, direct print
advertising in trade journals, Internet advertising, public and media relations,
third party industry analyst briefings and relations, and select trade
conference activities. SiriCOMM may reference Love's in marketing literature
with prior Love's review and approval of such usage. The cost of the materials
will be the responsibility of the party that is requesting the permission and/or
providing the service unless otherwise agreed upon by both parties.
13. Hyperlinks. Love's and SiriCOMM shall enter into a Hyperlink
Agreement as may be agreed through good faith negotiations of the parties
through which Love's will provide on its Website a link to SiriCOMM's Website
and SiriCOMM will provide on its Website a link to Love's Website;
14. Steering Committee. SiriCOMM and Love's shall participate in a
Steering Committee through designated personnel from each company. The Steering
Committee's intent is to meet on a set schedule to review the status and
direction of the Parties' relationship, the success of products, product
development, and any issues or concerns of either Party regarding the matters
that are the subject of this Agreement. All details regarding time, manner,
place and agenda for such meetings shall be decided by the Steering Committee;
15. Consideration.
15.1 Love's will receive commission payments through the
SiriCOMM reseller program from PRE Solutions. Love's will resell SiriCOMM's
InTouch service (Internet access) at the register and then PRE Solutions will
disperse the funds to each party accordingly;
15 1 A Loves will be paid $15 per month for each Travel Stop
location from SiriCOMM in lieu of a percentage of internet sales. This payment
should be received by the 15`h of each month.
15.2 It is anticipated by SiriCOMM and Love's that, from time
to time, they will cooperate to develop new travel center-related software
applications to be launched across the VSAT network. The parties agree to
negotiate in good faith specific revenue sharing provisions for such
developments using factors such as design and development cost, bandwidth
requirement, etc., to determine revenue sharing.
16. Complimentary Accounts. SiriCOMM will allow Love's operations &
sales personnel with a maximum of 100 complimentary ISP service accounts within
the SiriCOMM network infrastructure. Love's will provide to SiriCOMM the
appropriate information to identify and manage complimentary accounts. With the
pre-approval of SiriCOMM, Loves will have discretionary access to the internet
at each location with limitations that it would use minimal bandwidth and not
hinder performance of system in any way.
17. Termination for Cause. Either party may terminate this Agreement
for Cause. "Cause" shall mean a breach by the other party of any material
provision of this Agreement, provided that written notice of the breach has been
given to the breaching party, and the breach has not been cured within thirty
(30) days after delivery of such notice. SiriCOMM agrees to remove all equipment
listed on attachment A and make any repairs deemed necessary to Love's
facilities within 60 days of agreement termination.
18. Confidential Information. Commencing on the Effective Date and
continuing for a period of 30-days from the termination of this Agreement, each
party shall protect as confidential, and shall not disclose to any third party,
any Confidential Information received by the disclosing party or otherwise
discovered by the receiving party during the term of this Agreement, including,
but not limited to, the pricing and terms of this Agreement, and any information
relating to the technology, business affairs, and marketing or sales plans
(collectively the "Confidential Information"). The parties shall use
Confidential Information only for the purpose of this Agreement. The foregoing
restrictions on use and disclosure of Confidential Information do not apply to
Information that: (a) is in the possession of the receiving party at the time of
its disclosure and is not otherwise subject to obligations of confidentiality:
(b) is or becomes publicly known, through no wrongful act or omission of the
receiving party; (c) is received without restriction from a third party free to
disclose it without obligation to the disclosing party; (d) is developed
independently by the receiving party without reference to the Confidential
Information or (e) is required to be disclosed by law, regulation, or court or
governmental order.
19. Assignment. Neither party may assign this Agreement or any of its
rights hereunder without the prior written consent of the other party, which
consent shall not be unreasonably withheld.
20. Service Marks, Trademarks and Publicity. Neither party shall: (a)
use any service xxxx or trademark of the other party; or (b) refer to the other
party in connection with any advertising, promotion, press release or
publication unless it obtains the other party's prior written approval.
21. Notice. All notice hereunder shall be in writing and either
transmitted via overnight courier, electronic mail, hand delivery or certified
or registered mail, postage prepaid and return receipt requested to the parties
at the addresses provided on page 1. Notices will be deemed to have been given
when received.
22. Entire Agreement. This Agreement (and any Attachments and other
documents incorporated herein by reference) constitutes the entire agreement
between the parties with respect to its subject matter and supersedes all other
representations, understandings or agreements that are not expressed herein,
whether oral or written. Except as otherwise set forth herein, no amendment to
this Agreement shall be valid unless in writing and signed by both parties.
23. 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 heard in the state of Missouri.. 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 cost incurred.
24. Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER
PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND SIRICOMM
MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE EQUIPMENT, INCLUDING BUT
NOT LIMITED TO AN IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. Neither party will be liable to the other party for any
indirect, special, punitive or consequential damages, including but not limited
to damages based on loss of service, revenue, profits or business opportunities.
25. Indemnities. SiriCOMM shall repair any damage to the Premises
caused by SiriCOMM, its employees, or its agents. SiriCOMM shall hold harmless
and indemnify Love's from and against any and all losses or damages (including
reasonable attorneys' fees) arising from or with respect to our installation,
maintenance, operation or removal of the Equipment, except to the extent caused
by negligent or intentional acts or omissions, of Love's or its agents or its
employees. Love's will not reimburse SiriCOMM for all costs to repair or replace
any Equipment damaged by Love's, its agents, or its employees.
26. Successors and Assigns. The benefits and obligations of this
Agreement shall inure to and be binding upon the successors, assigns, heirs, and
personal representative of the parties.
In Witness Whereof, the parties have executed this Agreement through
their duly authorized representatives as of the date first written above.
Love's Travel Stops and Country Stores, Inc.
By: /s/ Xxxxx Xxxxxxxxxxxx 10/14/05
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Name: Xxxxx Xxxxxxxxxxxx
Title: Director of Facility Revenue
SiriCOMM, Inc.
By: /s/ Xxxxx X. Xxxxxx 10/19/05
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
