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Exhibit 10.31
PURCHASE OF SHARED RIDE DISPATCH SYSTEMS
TERMS AND CONDITIONS OF SALE
THIS PURCHASE AGREEMENT made as of the 28 day of June 1995 between Digital
Dispatch Systems Inc. ("DDS"), with an office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇ and SuperShuttle Franchise Corporation (the "Customer"), with an office
at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
WHEREAS:
A. DDS has developed a Taxi Dispatch System and will modify this system to
meet the exact needs of the Customer and create the Shared Ride
Dispatch System, and
B. DDS has agreed to sell such systems to the Customer for aid in the
business operations of the Customer, on the terms and conditions set
out in this Agreement.
C. DDS has agreed to license the Software to the Customer for its use in
the System.
THIS AGREEMENT WITNESSES that in consideration of the premises and the
obligations of the parties set out in this Agreement, the parties agree as
follows:
1. DEFINITIONS
As used in this Agreement, unless the context otherwise requires, the
following terms shall have the meanings set out below;
(a) "Application Software" means all software developed by DDS,
other than the operating system software and software provided
by other vendors like Microsoft, and Computer Associates, and
excludes all software which doesn't reside on the Host Server
or workstations for reservation agents, supervisors or
dispatchers. The Application Software is provided under a
Software License Agreement attached hereto as Attachment E.
The Application Software will include all functions and
features listed in the Functional Specifications Document
(b) "Contract" means the agreement between DDS and the Customer,
as evidenced by the Contract Documents;
(c) "Contract Documents" means those documents set forth in
Subsection 4.2, which documents collectively and exclusively
constitute the Contract;
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
(d) "Deliverables" means the items listed in Attachment A;
(e) "Delivery Point" means the location of the Customer's Office,
or the location here the System is to be installed;
(f) "Documentation" means any documentation, including manuals,
DDS is obligated to provide to the Customer, under this
Agreement, as set out in Attachment D;
(g) "Functional Specifications Document" means the document to be
prepared by DDS and the customer, describing features and
functions in the system, associated with implementation of the
System, that are not capable of resolution at the time of
execution of this Agreement;
(h) "FOB" means free on board at the Delivery Point; the price
quoted includes delivery at the expense of DDS to the Delivery
Point;
(i) "Hardware" means the hardware to be supplied by DDS under the
terms of this Agreement;
(j) "Premises" means those physical sites, or vehicles, under the
control of the Customer or which the customer has access to,
in which the various components of the System are to be
installed;
(k) "Products" means the Hardware and Software to be supplied by
DDS under the terms of the Agreement;
(l) "Proposal" means the quotation of DDS for a Shared Ride
Dispatch system dated June 7, 1994;
(m) "Purchase Order" means a purchase order, in respect of the
System issued by the Customer to DDS;
(n) "Services" means all services to be performed by DDS under the
terms of this Agreement;
(o) "Software" means all the software provided by DDS, other than
operating system software.
(p) "System Service Agreement" means any written agreement entered
into by the parties, with respect to the service of the
Hardware and Software;
(q) "System" means the Shared Ride Dispatch system the components
of which are described in Attachment A, resulting from the
performance of Services and the installation and turn on of
Products.
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
The System will also mean a subsequent system purchased by the
Customer as defined in section 2, purchased for a location
other than Phoenix, which will have it's own Deliverables and
System Price;
(r) "System Acceptance Date" means date of Customer acceptance of
the System, as defined in Subsection 13.0.
(s) "System Price" means the sum of US$255,050 for the Phoenix
System, subject to adjustment as provided in this Agreement;
(t) "Software Development Cost" means the sum of US$275,000 which
will cover the costs of developing the Application Software in
accordance with the Functional Specifications Document and
also give the Customer 1000 pre-paid run-time licenses for the
Application Software.
2. PURCHASE AND SALE OF SYSTEM AND PRODUCTS
DDS will sell the System to the Customer and the Customer will purchase
the System and the pre-paid run-time licenses from DDS upon the terms
and conditions set forth in this Agreement. In addition the Customer
may purchase other or more components of the System as priced in
Attachment F of this Agreement.
The Customer will purchase additional Systems for locations other than
Phoenix, by composing a complete System from the individual components
listed in Attachment F. The prices listed in Attachment F will be valid
till Dec. 31, 1995, after which time these prices will be adjusted to
reflect increase in Consumer Price Index ("CPI") for 1995 for DDS
manufactured products. The prices listed in Attachment F will be
subject to price increases and decreases by various vendors of DDS for
DDS supplied products which are not manufactured by DDS.
Each and every one of these new Systems will be considered as a
separate purchase and all the terms and conditions in this Agreement
will apply to them.
The 1000 pre-paid run-time licenses for the Application Software may
used, re-sold or distributed by the Customers in other SuperShuttle
franchises or locations. The Customer has the right to charge a license
fee for these licenses which fee will be kept by the Customer.
3. FUNCTIONAL SPECIFICATIONS
After the execution of this Agreement, DDS shall finalize the
Functional Specifications Document in consultation with the Customer
which will detail all the functions and features required for the Super
Shuttle dispatch operations. A draft copy of the Functional
Specifications is attached as Attachment G. DDS will develop all the
features listed in this document.
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
If DDS and the Customer cannot agree to the contents of the Functional
Specifications Document three weeks from the date of signing this
Agreement, then either party may cancel this Agreement without any
penalties to either party. Once the Functional Specifications Document
has been signed off by both parties, this Agreement may not be
canceled.
4. CONTRACT DOCUMENTS AND THEIR PRECEDENCE
4.1 DDS shall not be responsible for delivering any materials, labor,
equipment, consultation, Application Software, software or any other
item not explicitly referenced in, or required for meeting, the terms
of the Contract Documents.
4.2 The Contract Documents collectively and exclusively constitute the
Contract governing the relationship between the parties. The Contract
Documents are as follows:
(a) this Agreement and any amendments to it;
(b) the Functional Specifications Document;
(c) Letter of Intent dated November 2, 1994
In the event of an inconsistency between or among Contract Documents,
the priority of documents shall be in the order set forth above.
5. REQUEST FOR CHANGES
5.1 CHANGES TO HARDWARE CONFIGURATION
The Customer shall deliver to DDS, in writing, any request for
additions, modifications or changes to the System. Provided the request
is within the general scope of the contract, DDS shall, within a
reasonable period of time from receipt of request, issue to the
Customer a written quotation detailing the effect, if any, on the
implementation schedule and the System Price. If the Customer does not
accept the quotation, in writing, within ten days of receipt of the
quotation, the quotation shall be deemed to have been withdrawn. If the
Customer accepts the quotation in writing, this Agreement shall be
deemed to be amended in accordance with the quotation and the parties
shall set out, in writing, to be signed by the parties, the amendment
agreed upon as above.
5.2 CHANGES TO FUNCTIONAL SPECIFICATIONS DOCUMENT
The Customer may make as many changes as he wants, without an increase
in the Software Development Costs, to the Functional Specifications
Document till it is approved in writing by both parties. Significant
changes to the Functional Specifications will however cause delays in
delivery of the Application Software from the agreed upon schedule as
outlined in Attachment H.
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
After the approval of the Functional Specifications Document by both
parties in writing, the Customer shall deliver to DDS, in writing, any
request for additions, modifications or changes to the Functional
Specifications. DDS shall, within a reasonable period of time from
receipt of request, issue to the Customer a written quotation detailing
the effect, if any, on the implementation schedule and any additional
Software Development Costs. If the Customer does not accept the
quotation, in writing, within ten days of receipt of the quotation, the
quotation shall be deemed to have been withdrawn. If the Customer
accepts the quotation in writing, this Agreement shall be deemed to be
amended in accordance with the quotation and the parties shall set out,
in writing, to be signed by the parties, the amendment agreed upon as
above. Any additional software development costs will be paid in full
30 days after the delivery of such functionality and the costs will be
computed at the rate of US$40 per hour for the year 1995, subject to
annual national CPI increases.
6. PURCHASE ORDERS
Any Purchase Order issued in respect of this Agreement will be subject
to the terms and conditions contained in this Agreement and, in the
event of any inconsistency between this Agreement and such Purchase
Order, this Agreement will govern unless DDS expressly in writing
consents to a term of the Purchase Order overriding this Agreement.
If any Purchase Order introduces a term or condition not covered by
this Agreement, then DDS shall not be bound by such term or condition
unless DDS expressly in writing consents to such term or condition.
7. TAXES
The Customer is responsible for and will pay all Federal State and
other Taxes associated with the System after delivery to the Delivery
Point. The Customer will, upon receipt of an invoice therefor,
reimburse DDS for all such taxes which DDS may elect or be required to
collect or pay upon the sale or delivery of the System.
8. RISK OF LOSS
Risk of loss or damage to the System will pass to the Customer upon the
delivery of the System to the Delivery Point. Confiscation,
destruction, theft or other loss of, or any damage to, the System will
not diminish or release the liability of the Customer to pay for such
System except where due to the negligence, intentional act or omission
to act, of DDS.
9. INSURANCE
The Customer shall provide and maintain insurance on the System against
all risks of loss or damage, in an amount not less than their full
replacement value, with loss payable to DDS and the Customer as their
interests may appear, from the date that risk of loss passes to the
Customer, until such time as title passes to the Customer and the
System Price has
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
been paid in full. The insurance will provide for ten (10) days
written minimum cancellation notice to DDS, and the Customer will
provide DDS with a certificate or other evidence of this insurance
prior to the shipment of the System by DDS to the Customer. DDS will
notify customer or customer's representative seven (7) days prior to
delivery of the system to the delivery point.
10. DELIVERY OF PRODUCTS AND DOCUMENTATION
10.1 DDS will deliver the System and Documentation to the Delivery Point no
later than the dates agreed upon by the parties for the delivery of
these items and will pay all costs of transportation, rigging and
drayage connected with such delivery and all charges for insurance,
while the System and Documentation are in transit to the Delivery
Point.
10.2 The Customer shall inspect all System and Documentation upon receipt of
them and shall notify DDS immediately when there is evidence of
shipping loss or visible physical damage. DDS shall file all claims
with the carrier when there is evidence of such loss or damage.
10.3 The Phoenix System will be delivered in phases as described in the
Functional Specifications. The current schedule which is subject to
change as per section 5.2 is described in Attachment H.
a) The first phase will be delivered 4 months after the written
approval of the Functional Specifications for Phase I
deliverable and features and upon receipt of payments as
outlined in Section 12.2(a) and, payments which are due as
described in Section 12.5.
b) The subsequent phases will be delivered as mutually agreed upon
in writing in the Functional Specifications. Upon installation
and written approval of Phase I, the phase II development will
be undertaken and delivered.
11. TITLE TO AND SECURITY INTEREST IN THE SYSTEM
11.1 Until all installments of the System Price are paid in full, which are
the three payments described in Section 12.2, DDS shall retain title to
and a security interest in the System and each unit thereof, all
additions and accessories thereto and all replacements, products and
proceeds thereof, each of which shall remain personal property
regardless of the manner of its attachment to any other property. The
Customer agrees that DDS will have the right to file financing
statements or other documentation pursuant to applicable law to secure
evidence of or perfect DDS' title to and security interest in the
System and the Customer shall perform all acts and execute and deliver
all documents that DDS may request to perfect and retain such title and
security interest. Upon payment in full of the System Price, title to
the Deliverables, as described in Attachment A hereto, will pass to the
Customer.
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11.2 Until the title to the System passes to the Customer, the Customer will
not, without prior consent of DDS, sell the System, or any part
thereof, or create, or permit to exist, any encumbrances or security
interests upon the System, and will promptly pay the full amount of,
and discharge, all encumbrances and security interests which arise in
respect of the System.
12. SYSTEM PRICE AND PAYMENT TERMS
12.1 The System Price is exclusive of all applicable taxes which may be
applicable to the supply of the subject matter of the Agreement and is
FOB the Delivery Point.
12.2 Upon receipt of invoices from DDS, the Customer, or it's leasing
company, will pay the System Price to DDS as follows:
(a) 30% of the System Price upon execution of this Agreement;
(b) 50% of the System Price upon shipment of the Products to the
Delivery Point;
(c) 20% of the System Price upon acceptance of the System by the
Customer as outlined in Section 13. The Application Software
is being developed in Phases and has it's own payment schedule
as detailed in section 12.5 and the System Price payment,
including the final payment is not subject to acceptance of
the Application Software.
12.3 Each invoice presented by DDS to the Customer in accordance with this
Agreement (other than the invoice for the initial payment upon
execution of this Agreement which will be due and payable upon receipt)
will be due and payable by the Customer within 30 days after the date
of such invoice. In the event that there are partial shipments of
Products to the Delivery Point, payments as outlined in 12.2(b) will be
pro-rated.
12.4 The Customer will make payment of invoices by check.
12.5 The Software Development Cost is exclusive of all applicable taxes
which may be applicable and is payable as follows:
The total development cost of US$275,000 will be paid in installments
without interest. The first installment of $10,000 to be paid
immediately upon execution of this Agreement, US$15,000 upon acceptance
of Functional Specifications Document and the remaining 10 equal
installments of US$25,000 each to be paid quarterly starting 90 days on
the date the Phase I of the Application Software is delivered at
Phoenix and continuing for the next 9 consecutive quarters.
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13. ACCEPTANCE TESTING
13.1 After installing the System and at a time mutually agreed upon by the
parties, DDS will conduct Acceptance testing, according to the
acceptance test procedures prepared by DDS and approved by the
Customer.
13.2 The Customer shall, within 15 days, from completion of acceptance
testing, identify in writing any deficiencies in the System. DDS shall
diligently cure any deficiencies identified by the Customer,
immediately upon receipt of notice of such deficiencies.
13.3 Upon completion of acceptance testing, the delivery and performance by
DDS of the Services, and the curing of any deficiencies in the System,
identified by the Customer in writing, the Customer will indicate its
acceptance of the System by executing and delivering to DDS a
certificate of acceptance. The Customer will not reject the System
solely for the reason that it fails to conform with the specifications,
requirements and functions set out in the Contract in an insignificant
respect, provided that DDS cures such insignificant non-conformity with
reasonable dispatch after receipt by DDS of notice in writing of such
non-conformity.
14. WARRANTY
14.1 DDS SUPPLIED HARDWARE
DDS warrants that, for a period of 6 months from the date of delivery
at the Delivery Point, the Hardware supplied under this Agreement will
be free of defects resulting from defective materials or workmanship.
DDS will provide, at its option and without charge, replacement parts
or repairs for Hardware which fails as a direct result of defective
materials or workmanship within the warranty period. DDS shall provide
warranty service either at a DDS service center or the Customer's site,
at the option of DDS. If defective Hardware is returned to DDS, the
Customer will bear the cost of returning such Hardware to a DDS service
center and DDS will bear the cost of delivering the repaired or
replacement Hardware to the Customer. The Customer will be responsible
for all damage to returned Hardware or components resulting from
improper packing or handling by the Customer, and for loss in transit,
notwithstanding any defect or non-conformity in the Hardware.
14.2 APPLICATION SOFTWARE
DDS warrants that, for a period of 6 months from the date of System
acceptance of the two phases of the Application Software as described
in the Functional Specifications, Application Software supplied under
this Agreement will be free of bugs and deficiencies in conforming to
the Functional Specifications. DDS will fix deficiencies and provide
bug fixes on a timely manner during the warranty period.
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There is no warranty for the run-time licenses and they are being sold
on a 'as is' basis. The run-time licenses can be supported under a
separate Service Agreement, at prices as set forth in Attachment F.
14.3 LIMITED WARRANTY FOR HARDWARE
The warranty provided above is a limited warranty and does not apply in
the following circumstances:
(a) the Hardware has been damaged by misuse, accident, negligence
or failure to provide and/or maintain the environmental
requirements specified for such Hardware;
(b) the Hardware has been damaged by modifications, alterations or
attachments, made by the Customer, and not authorized by DDS;
or
(c) the Hardware has not been installed and/or operated in
accordance with DDS's instructions.
14.4 The warranties in Subsection 14.1 and 14.2 are the sole warranties made
by DDS with respect to the System and DDS makes no other warranties or
representations, express or implied, with respect to the System. The
Customer acknowledges that there are no warranties that extend beyond
the warranties described in this Agreement.
14.5 DDS does not warrant radio coverage. However, DDS will assist the
Customer in determining the radio coverage and acknowledges that radio
coverage for data transmissions should be very close to radio coverage
for clear voice transmissions.
15. REMEDIES OF DDS
Default by the Customer under this Agreement shall include:
(a) Non-payment of any invoice when due or non-performance of any
obligation under this Agreement or breach by the Customer of
any warranty or representation contained in this Agreement;
(b) Sale encumbrance, seizure or attachment of the System or any
part thereof prior to the passing of the title to the
Customer;
15.1 If the Customer is in default of this Agreement, the following shall
apply:
(a) DDS may withhold further delivery of Hardware and Services
until the default is remedied; and
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(b) If the Customer is in default of this Agreement and has not
cured the default within thirty (30) days, unless the said
default is a dispute over an invoice that is being researched
or discussed, all warranties and obligations of DDS relating
to the System shall automatically be suspended until the
default is cured.
In the event that the default is not cured by the Customer
within sixty (60) days, all warranties and obligations of DDS
relating to the System shall be terminated.
(c) DDS shall also have the right to declare the entire amount of
the unpaid balance of the System Price and any other charges
to be immediately due and payable and to exercise any other
remedy existing at law or in equity, including entering the
premises where the System is located and taking possession of
the System and all related documentation without notice or
demand, and the sale, lease or other disposition of the
System, without prejudice to any further or other claims which
DDS may have against the Customer. The Customer shall pay DDS
all costs and expenses, including legal fees, incurred in
exercising its rights and remedies.
15.2 If the Customer fails to pay an invoice within 30 days of the date of
the invoice, DDS may charge the Customer interest on the overdue
amount, from the date such amount became due, at the rate of 1.5% per
month, compounded monthly or the maximum rate applicable by law,
whichever is lower.
15.3 If a petition in bankruptcy shall be filed by or against the Customer
or the Customer shall be adjudicated a bankrupt or insolvent or shall
have made an assignment for the benefit of creditors or shall take
advantage of any law for the benefit of debtors or if any action is
commenced against the Customer to cause its assets to be placed under
trusteeship or receivership or liquidated for the benefit of creditors
of if the Customer voluntarily or by operation of law shall lose
control of the operation of its business, except pursuant to a bona
fide merger or acquisition, then DDS may immediately terminate this
Agreement by notice to the Customer and DDS may, at its option take
exclusive possession of the System wherever found and remove the System
without legal process and the Customer shall pay all removal costs and
any payments which have therefore been made on account of the System
Price shall be retained by DDS and applied to such costs and charges,
without prejudice to the right of DDS to recover any further damages
which it may suffer from any cause.
15.4 The rights granted to DDS under this Agreement shall be cumulative and
are in addition to rights provided to DDS by law or otherwise. To the
extent permitted by law, DDS may exercise its rights concurrently or
separately and exercise of any one remedy shall not be deemed an
exclusive election of such remedy or to preclude the exercise of any
other remedy.
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16. REMEDIES OF THE CUSTOMER
Default by DDS under this Agreement shall include:
(a) Non-delivery of the Hardware components as identified in
Attachment A in a scheduled period, unless the delays are caused
by the Customer and this non-delivery continues for a period of
30 days from the date of written notice by the Customer;
(b) Non-performance by DDS relating to performance problems of the
Hardware and the System which are left unattended or not
corrected by DDS for a period of 30 days from the date of the
written notice by the Customer;
16.1 If DDS is in default of this Agreement, the following shall apply:
(a) The final payment, which is the payment as described in section
12.2 (c), is subject to all of the provisions relating to DDS's
obligations being met;
(b) Any non-payment of an invoice or invoices related to the above
listed defaults will not constitute a default on the part of the
Customer.
16.2 If a petition in bankruptcy shall be filed by DDS, or DDS shall be
adjudicated a bankrupt or insolvent or shall have made an assignment
for the benefit of creditors or shall take advantage of any law for the
benefit of debtors of if any action is commenced against DDS to cause
its assets to be placed under trusteeship of receivership or liquidated
for the benefit of creditors or if DDS voluntarily or by operation of
law shall lose control of the operation of its business, except
pursuant to a bona fide merger or acquisition, then the Customer may
immediately terminate this Agreement by notice to DDS, without further
liability.
16.3 The rights granted to the Customer under this Agreement shall be
cumulative and are in addition to rights provided to the Customer by
law or otherwise. To the extent permitted by law, the Customer may
exercise its rights concurrently or separately and the exercise of any
one remedy shall not be deemed an exclusive election of such remedy or
preclude the exercise of any other remedy.
16.4 If DDS sells or otherwise makes available the Application Software to
any operators in the Airport Ground Transportation business in North
America for a period of 10 years from the date of this Agreement, as
detailed in section 29, then the Customer, in addition to all other
remedies available to him at law or in equity, will be entitled as a
matter of right to apply to a court of competent, equitable
jurisdiction for such relief by way of restraining order, injunction or
decree.
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17. LIMITATION OF LIABILITY
17.1 DDS's liability for damage to the Customer for any cause whatsoever,
and regardless of the forms of action, whether in contract or in tort,
including negligence, shall be limited to direct damage suffered by the
Customer, and any damages payable by DDS shall not exceed the amount of
money paid by the Customer to DDS.
17.2 DDS will not be liable to the Customer or any other person for any of
the following:
(a) any special, indirect or consequential damage, including lost
profits, lost revenues, failure to realize expected savings,
or other commercial or economic losses, even if DDS has been
advised of the possibility of such damage;
(b) any damage caused by the failure of the Customer to meet the
responsibilities of the Customer set out in the Contract; or
(c) any loss or damage to any property or for any personal injury
or economic damage caused by the connection System to devices
or systems not supplied or approved by DDS.
18. INSTALLATION
18.1 Each of the parties will perform and bear the cost of performing the
installation responsibilities assigned to it in Attachment B.
18.2 DDS will supply the Customer with the information necessary to prepare
the Premises for installation of the System. The Customer shall pay all
expenses necessary to prepare a suitable place for installation of each
part of the System with all necessary facilities, including electrical
and communications wiring.
18.3 If the Customer or its nominee is to install any part of the System,
the preparations of the Premises for installation of such part shall be
completed before delivery.
19. EDUCATION AND TRAINING
19.1 DDS shall provide training and training materials to the Customer as
set out in Attachment C.
19.2 If the Customer requires training or training materials in addition to
that referred to in Attachment C, DDS shall provide such training or
materials, upon receipt of written request from the Customer, on a time
and materials basis at times and places to be agreed upon by the
parties.
19.3 The Customer shall make available a sufficient number of its personnel
to be trained for the various jobs connected with the System.
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20. DOCUMENTATION
20.1 DDS will provide Documentation to the Customer as described in
Attachment D, which Documentation shall become the property of Customer
upon delivery. The Customer is responsible for documentation listed
under Customer's responsibilities. However, DDS will provide the
Customer with the existing Taxi manuals in Microsoft Word format and
the Customer will modify for it's own use.
20.2 The Customer may reproduce all Documentation provided by DDS to the
Customer, provided that such reproduction is made solely for the
internal use of the Customer and its employees, agents and
subcontractors, and that such reproduction is subject to the obligation
of confidentiality set forth in Section 24.
21. SERVICE OF HARDWARE
Following expiration of the applicable warranty periods provided that
there is no System Service Agreement in effect between the two parties,
DDS if requested, will provide, at rates and terms of DDS then in
effect, service and parts for the Hardware, so long as such service and
parts are generally available.
22. PATENT AND COPYRIGHT INDEMNITY
22.1 DDS will defend the Customer from any claim that Products or
Documentation infringe third party proprietary rights and will
indemnify the Customer against any loss, damage and expense arising
from any such action and all negotiations for its settlement of
compromise provided that DDS is notified promptly in writing by the
Customer and given full and complete authority, information and
assistance for the defense of such claim and that no compromise of any
claim is made without the prior written consent of DDS.
22.2 Notwithstanding the provisions of Subsection 23.1, DDS shall have no
liability to the Customer for any claim of infringement where such
claim results from any one of the following:
(a) combination of Products with hardware and/or software not
supplied or authorized by DDS;
(b) alteration or modification of Products by or for the Customer,
by a person other than DDS, if a claim of infringement could
have been avoided by the absence of such alteration or
modification;
(c) any hardware or software that is not supplied by DDS; or
(d) compliance by DDS with designs or specification or change
orders which originate with and are furnished by the Customer.
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22.3 THE FOREGOING STATES THE ENTIRE LIABILITY OF DDS UNDER THIS AGREEMENT
WITH RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS, DESIGNS AND OTHER
PROPRIETARY RIGHTS.
22.4 The Customer shall indemnify and hold DDS harmless against any expense,
judgment or loss arising out of, based upon, or in connection with
infringement or claims of infringement of any third party proprietary
rights which are based upon results from any one or more of the
following:
(a) the Customer's unauthorized modification or alteration of any
Product; or
(b) use of any Product in a manner not authorized or contemplated
by DDS.
23. CHANGES TO PRODUCTS
DDS may, without prior approval from or notice to the Customer, at no
cost to the Customer, make changes to the Products, which do not affect
physical or functional interchangeability, or performance at a higher
level of assembly, in the following circumstances:
(a) when required for safety purposes; or
(b) to meet present or future product specifications of DDS.
24. PROPRIETARY RIGHTS AND CONFIDENTIALITY
24.1 DDS reserves for itself all proprietary rights and to all designs,
engineering details, an other data pertaining to the Products and to
all discoveries, inventions, patent rights, trade secrets, know-how or
other proprietary data arising out of work done in connections with
manufacturing, installing, testing and operating the Products.
24.2 Each of the parties will keep confidential and protect from
unauthorized disclosure by its employees, agents or customers, any
confidential information or know-how which may be disclosed to it by,
or otherwise learned from, the other party. Information will not be
considered confidential if such information can be demonstrated to have
been in the public domain prior to this disclosure to the receiving
party or to have been in the public domain by any means other than an
unauthorized act of disclosure on the part of the recipient or any of
its employees, agents or customers. In the event of any breach of this
Section, the party whose information has been disclosed will be
entitled as a matter or right to apply to a court of competent,
equitable jurisdiction for such relief by way of restraining order,
injunction, decree or otherwise as may be appropriate to ensure
compliance with this Section.
24.3 DDS acknowledges that in the development of the Functional
Specifications for the Application Software for the Customer, the
Customer may disclose its trade secrets to DDS and some of these trade
secrets may result in a feature or function of the System.
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
Therefore, DDS agrees not to sell such systems to the Customer's
competitors as described in section 29.
24.4 The Customer acknowledges that prior to the signing of this Agreement,
DDS had developed a comprehensive specifications for the Para-Transit
industry and that a large portion of the Functional Specifications
Document is based upon the Para-Transit specifications and existing
technologies from the Taxi and Courier products of DDS, Therefore,
nothing in this Agreement will imply that DDS cannot sell similar
systems to the operating companies in the Para-Transit, Taxi and
Courier industries.
25. ACCESS TO PREMISES
The Customer will provide timely access to all premises, according to
agreed upon schedules, for design, installation and testing purposes.
26. EXCUSABLE DELAYS
Neither party will be responsible for any delay in performance or
failure to perform, if such delay or failure results from causes beyond
the control of that party, including acts of God, delay or failure of
transportation, governmental acts or other reason of a like nature not
being the fault of the delaying party. All periods fixed for the
performance of obligations of the parties will be extended for a period
of time equal to any such delay in performance or failure to perform.
27. GENERAL PROVISIONS
27.1 Neither party will assign this Agreement without the consent of the
other party and any attempt to do so will render this Agreement void,
except that a party may assign this Agreement to a successor in
ownership of all or substantially all of the assets of this assigning
party.
27.2 If any provision of this Agreement is wholly or partially invalid or
unenforceable, such invalid or unenforceable provision will be
severable from the remainder of this Agreement and such remainder will
be interpreted as if the invalid or unenforceable provision had not
been a part of it.
27.3 All questions concerning the construction, validity and operation of
this Agreement will be governed by the laws of the jurisdiction in
which the Customer is located and the courts of such jurisdiction will
have jurisdiction (but not exclusive jurisdiction) to hear and
determine all questions relating to this Agreement.
27.4 The Contract represents the entire agreement between the parties with
respect to the subject matter or this Agreement and no documents or
representations other than the Contract Documents shall be used in
interpreting it.
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
27.5 This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
27.6 Any notices required to be given under this Agreement will be given in
writing and either mailed by prepaid registered mail or sent by telex
or other visible form of electronic media or delivered to the addresses
stated below or to such other address as either party may substitute by
written notice to the other. Any such notice will be deemed to be
received, if mailed, when in the ordinary course of transmission it
should have been delivered but in no event later than five business
days after the time of mailing, if sent by telex or other visible form
of electronic media, upon the date of receipt, and, if delivered upon
the date of delivery. If normal mail service is interrupted by postal
dispute or force majeure, notice will be delivered and not mailed.
27.7 All dollar amounts are stated in the legal currency of the Government
of the United States of America.
27.8 Controlling Law. This Agreement, including all matters relating to the
validity, construction, performance, and enforcement thereof, shall be
governed by the laws of Arizona.
28. CONFLICTS WITH THE UNIFORM COMMERCIAL CODE
If the terms of this contract or any remedies provided hereunder are
deemed to be in conflict with any provision of the Uniform Commercial
Code or other commercial statue of Canada or of any state or Federal
enactment of the United States, the terms and remedies of the contract
shall be deemed to supersede and control.
29. EXCLUSIVITY USE OF SOFTWARE
DDS will not sell the Application Software to any of the operators in
the Airport transportation business for a period of 10 years from the
date of this Agreement. Provided the Customer is not in breach of this
Agreement and has paid for the System and the Application Software in
full then, DDS acknowledges that the Customer is currently in the
airport ground transportation business on a national basis and that the
Customer's plans to expand are a primary motivation for them to enter
this Agreement.
30. SOURCE CODE
DDS will provide the source code for the Application Software to the
Customer on an 'as is' basis for the sole use to maintain, modify or
enhance the System upon payment by the Customer of the Software
Development Costs in fill as described in section 12.5. Under no
circumstances will the Customer be able to sell or transfer title of
the source code of the Application Software to any other party.
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
All intellectual property rights, including without imitation all
derivative works and modifications. in and to the Application Software
by the Customer, will remain the property of DDS. The terms of this
section shall survive the termination of this Agreement.
31. REPRESENTATIONS AND WARRANTIES OF DDS
31.1 DDS represents that it has developed a multiple transmitter and
receiver site Network Controller which will be used in the Phoenix
system.
31.2 DDS represents that it has developed a Digital Signal Processing based
high speed modem which works at 4800 bits per second data speeds of
transmission on data quality radios like the Motorola Spectras.
These modems will be used in the new ▇▇▇ ▇▇▇ ▇▇▇.
31.3 DDS represents that the ▇▇▇ ▇▇▇ ▇▇▇ and the associated Redundant Base
Controller are capable of at least 8000 inbound and outbound messages
per hour per radio channel, when the Customer supplied mobile radios
have an transmitter attack time of 35 milliseconds or less. For a fleet
of 135 vehicles, this allows for at least 1 message per vehicle every
two minutes, or 30 messages per hour per vehicle. Each message can be
inbound to the host with an outbound answer from the host, or an
outbound instruction from the host with its inbound acknowledgment.
For bigger fleets additional radio frequencies will be required.
31.4 DDS will implement the capability of supporting the Motorola MDC 4800
protocol on the ▇▇▇ ▇▇▇, ▇ months after the delivery of complete
documentation by either the Customer or Motorola to DDS. Development
time frame for this protocol will be finalized upon delivery of the
documentation pertaining to the MDC 4800 protocol. The Customer may use
MDC 4800 compatible KST 260 or Motorola 7100 MDTs in other SuperShuttle
locations where the MDC 4800 network is currently available.
There will be a one time lump sum charge to the Customer for the
development of the MDC 4800 protocol on the ▇▇▇ ▇▇▇ which is currently
estimated at $80,000.
31.5 DDS will implement an interface for the NCP, such that the existing MDC
4800 networks can be utilized by the SuperShuttle franchises. However,
the functionality of Application Software may be limited to the
functionality and connectivity of the Motorola KDT 440 or the Motorola
7100 CP terminals. This includes limitations of connectivity with a
GPS receiver or magnetic swipe reader. Any changes required in the KDT
440 or 7100 CP will not be the responsibility of DDS.
There will be a one time lump sum charge to the Customer for the
development of the NCP interface, which currently estimated at $15,000.
DDS will implement this Interface, 2 months from receiving a Purchase
Order for this work.
PAGE 17
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
37. REPRESENTATIONS AND WARRANTIES THE CUSTOMER
The Customer represents that as long as DDS delivers the Application
Software as described in the Functional Specifications Document and
Hardware as described in this Agreement and continues to offer to the
Customer competitively priced state-of-the-art technologies including
R.F. modem technology, while providing agreed to service quality, and
DDS is not in breach of any of its representations made in section 31,
then the Customer will purchase additional Systems for SuperShuttle
owned locations and make available the System for purchase to
SuperShuttle franchises, where appropriate, exclusively from DDS.
IN WITNESS WHEREOF the parties have executed this Agreement by their duly
authorized representatives as of the day and year first above written.
Super Shuttle International Inc. DIGITAL DISPATCH SYSTEMS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: Illegible Signature
------------------------------ --------------------------------
(Authorized Signatory)
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: Illegible Signature
---------------------------- ------------------------------
Title: Vice President/CIO Title: President
---------------------------- ------------------------------
Date: June 28, 1995 Date: May 19, 95
---------------------------- ------------------------------
Address for Notice: Address for Notice:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Richmond, B.C., Canada
U. S. A. V6X IX5
PAGE 18
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
ATTACHMENT A
SYSTEM DELIVERABLES
NO. DESCRIPTION QTY UNIT Extended
--------------------------------------------------------------------------------------
HARDWARE
1 DEC Pentiums Host Servers 2 9,000 18,000
2 Report Printer LA 310 1 685 685
3 Terminal Server 16 ports 1 1,340 1,340
4 Modems for Credit Card & Support ▇ ▇▇▇ ▇▇▇
5 KST-260 Mobile Data Terminals 120 900 108,000
6 Cable for MDT 110 50 5,500
7 Trimble internal GPS receivers 120 355 42,600
8 Multiple site Network Controller 1 10,000 10,000
9 Redundant Base Controller Multisite 3 7,100 21,300
10 V.32 9600 bps Land line Moderns 6 800 4,800
11 Call Out H/W (4 lines) 2 1,300 2,600
12 Credit Card Swipes 110 45 4,950
SOFTWARE LICENSES
13. License for SCO Unix & Ingres 2 2,600 5,200
14. License for maps of Arizona 1 995 995
15. Shared Ride Dispatch License AU 2 n/c n/c
OTHER SERVICES
16. Travel, shipping, hotels, Material lot 8,740 8,740
17. Project Implementation Services lot 20,000 20,000
TOTAL PHOENIX PRICE 255,050
ADDITIONAL HARDWARE AND SOFTWARE
(TO BE SUPPLIED BY CUSTOMER):
HARDWARE
1. Res Agent workstations 486 DX2-50, 8MB, 250MB disk Ethernet card, 14"
SVGA monitor
2. Mapping & Dispatcher stations 486 DX2-50, 12MB, 250MB disk Ethernet
card, 17" or 21" SVGA monitor
SOFTWARE
3. FIT TCP/IP S/W license one per Res Agent or Dispatcher workstation,
Micro-soft windows 95 or WFWG 3.1.1
4. Andyne GQL for each Report generation workstation
PAGE 19
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
ATTACHMENT B
INSTALLATION RESPONSIBILITIES
DDS
1. Install all System components supplied, including:
- Install base station controller
- Install data modems & Telephone line co-ordination
- Install all DDS Supplied Dispatch Center equipment
- Installation support to customer on MDTs
CUSTOMER
1. Provide all land lines.
2. Installation site preparation as below:
- power requirements
- ambient environment
- temperature
- humidity
- vibration
- dust
- static electricity
3. Install and provide adequate power to the Dispatch Center and
Administrative Office.
4. Install MDTs in vehicles.
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
ATTACHMENT C
TRAINING AND TRAINING MATERIALS
DDS
1. Mobile Data Terminal Installer Course
2. Driver Training Course
3. Reservation Agent Course preparation assistance
4. Supervisor's Course preparation assistance
5. System Manager's Course
CUSTOMER
1. Driver Training
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
ATTACHMENT D
DOCUMENTATION
DDS RESPONSIBILITIES
1. Functional Specifications Document
2. Acceptance Test Procedures
3. System Manual
4. Drivers Instructor's Manual
CUSTOMER RESPONSIBILITIES
1. Dispatcher & Supervisor's Manual
2. System Administrator's Manual
3. Reservation Agent's Manual
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
ATTACHMENT E
USER SOFTWARE LICENSE FOR
SHARED RIDE DISPATCH SYSTEM
THIS AGREEMENT is made as of the __________ day of___________ 1995. BETWEEN:
DIGITAL DISPATCH SYSTEMS INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(herein called "DDS")
OF THE FIRST PART
AND:
SuperShuttle Franchise Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(herein called the "Licensee")
OF THE SECOND PART
WHEREAS:
A. DDS has the right to sub-license and sell the software (machine
executable code) and documentation relating to computer aided dispatch
and/or digital communications systems, which proprietary software and
documentation (hereinafter collectively referred to as the "Licensed
Software") is generally known and described as:
SHARED RIDE DISPATCH SYSTEM
B. DDS and the Licensee have agreed that the Licensee will license the
Licensed Software from DDS to use on the following computer equipment
("System") only:
TYPE MODEL SERIAL NO.
DEC Pentium 90 MHz __________
DEC Pentium 90 Mhz __________
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the sum of
$1.00 and other good and valuable consideration now paid by the Licensee to DDS
(the receipt and sufficiency of which is hereby acknowledged), the parties agree
as follows:
1. DDS does hereby grant to the Licensee the non-exclusive right as
licensee, for so long as the Licensee is the exclusive owner of the
System, to use the Licensed Software, Shared Ride Dispatch Software,
including any subsequent improvements or updates, for the sole purpose
of operating and maintaining the System for its own internal business
purposes. This right is restricted to use of the Licensed Software on
the System and does not extend to operating the Licensed Software on
any other equipment owned or used by the Licensee or any third party.
2. The Licensee shall not have the right to loan, lease, sell or otherwise
transfer to a third party all or any part of the Licensed Software, for
use by that or any other party.
3. The Licensed Software may only be copied in whole or in part (with the
proper inclusion of copyright notice on the Licensed Software) for use
on the System.
4. This Agreement does not transfer to the Licensee any title or ownership
to the Licensed Software or any of its parts.
5. The Licensee, its employees, officers and agents shall, for so long as
the licensee is an owner of System and thereafter, keep the Licensed
Software secret and shall not communicate any part of it, directly or
indirectly, to any third party without the prior written consent of
DDS, which consent may be arbitrarily withheld.
6. The License granted by this Agreement will terminate upon the Licensee
ceasing to use the System or failing to comply with the terms of this
License or at the option of DDS, if the Licensee is in default of any
other written agreements with DDS, and the Licensee will return all
Licensed Software to DDS within 72 hours of termination of the license
granted by this Agreement.
7. This Agreement shall be governed, at the option of DDS, either by the
laws of the Province of British Columbia, Canada or the jurisdiction in
which the address of the Licensee as detailed on page 1 is located and
the courts of the Province of British Columbia will have the
jurisdiction (but not exclusive jurisdiction) to hear and determine all
questions relating to this Agreement.
8. The Licensed Software shall not be used in any manner beneficial to the
licensee at any sites other than those listed below.
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
DIGITAL DISPATCH SYSTEMS INC.
Per: /s/
-----------------------------
Authorized Signature
CUSTOMER NAME:
(Licensee)
Per: /s/
----------------------------------
Authorized Signature
Per: /s/
----------------------------------
Authorized Signature
PAGE 25
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
ATTACHMENT F
COMPONENT PRICING
UNIT MONTHLY
NO. DESCRIPTION PRICE MAINT.
-------------------------------------------------------------------------------------------------
HARDWARE
1. DEC Pentiums Servers 32MB mem, I Gb disk, Tape, Ethernet 9,000
2. Report Printer LA 310 685
3. Terminal Server 16 ports 1,340
4. Modems for Credit Card & Support US Robotics 14,400 bps 170
5. KST-260 Mobile Data Terminal 900 6
6. Cable for MDT 50
7. Trimble internal GPS receivers 355 3
8. Network Communications Controller 5,000-1 75
9. Redundant Base Controller 7,100-2 75
10. V.32 9600 bps Land line Modems 800-4 20
11. Automatic Reservation Agent H/W 1,300-2 25
12. Credit Card Swipes track II only 45-
13. Multiple Sites Network Controller 10,000 100
SOFTWARE LICENSES
14. License for SCO Unix & Ingres 2,600
15. License for Map drawing s/w per work station pre-paid
16. MapInfo database for site 995
17. Shared Ride Dispatch License (All Dispatch functions) pre-paid 650
18. Hot Standby Software pre-paid 250
OTHER SERVICES
19. Travel, shipping, hotels, Material 5,000 to 10,000
20. Project Implementation Services 15,000 to 30,000
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SUPERSHUTTLE INTERNATIONAL INC. TERMS AND CONDITIONS OF SALE
ATTACHMENT H
DELIVERY SCHEDULE FOR APPLICATION SOFTWARE
Subject to conditions as mentioned in section 10.3 (a) and 10.3 (b)
1. Phase I of Functional Specifications 5 months from date of approval of
Functional Specifications
2. Phase II of Functional Specifications 4 months from date of Acceptance of
Phase I software
PAGE 27