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RETAIL AGREEMENT
BETWEEN
THE UNITED STATES POSTAL SERVICE
AND
FEDERAL EXPRESS CORPORATION
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RETAIL AGREEMENT
THIS RETAIL AGREEMENT (this "AGREEMENT") is entered into as of January 10, 2001
between:
THE UNITED STATES POSTAL SERVICE, an independent establishment of the United
States of America established pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Section 101
et seq., having an office at ▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
("USPS"), and
FEDERAL EXPRESS CORPORATION, a company organized and existing under the laws of
Delaware, having an office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(together with its Affiliate, "FEDEX" and together with USPS, the "PARTIES" and
each individually, a "PARTY").
PREAMBLE
WHEREAS, USPS owns and operates manned postal facilities, throughout the United
States,
WHEREAS, customers of USPS may require packages to be delivered on the next day
to locations not served by USPS Express Mail, or delivered the same day or the
next morning, services that are not offered by USPS,
WHEREAS, FedEx desires to place its Drop Boxes at USPS retail facilities for the
acceptance of FedEx Express shipments,
WHEREAS, FedEx desires USPS to perform and USPS is willing to provide the USPS
Services (as such term is defined in this Agreement) to FedEx.
FOR AND IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Parties agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement and its Exhibits, the following terms shall have
the following meanings:
a) "ADVERTISEMENT" means a free or paid mass or targeted communication under
the control of a party intended for the general public or a specific
potential or existing customer, the ultimate purpose of which is to promote
the sale of such party's products or services, including, but not limited
to, television, radio and internet commercials, out-of-home ads (e.g.,
billboards, sports stadium displays, transit signs), direct mail ads, print
ads and free standing inserts in newspapers, magazines, and electronic
media.
b) "AFFILIATE" means an entity that Controls or is directly or indirectly
Controlled by a Party or is under joint Control with a party that Controls.
An Affiliate is also an entity that is under the common Control of another
entity that also Controls a Party.
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c) "CONTROL" or "TO CONTROL" with respect to an entity shall mean ownership of
more than 50% of the capital stock or equity interest and voting control of
any entity and the power to designate a majority of the board of directors
of such entity.
d) "DROP BOX" means a receptacle for the acceptance of packages by
customers using FedEx Express services.
e) "GOVERNMENTAL BODY" means any federal, state or local jurisdiction,
government, or quasi-governmental authority of any nature (including any
governmental agency, branch, department, official, or entity and any court
or other tribunal) exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing authority
or power of any nature.
f) "LEGAL REQUIREMENT" means any federal, state, local or other administrative
order, constitution, law, ordinance, principle of common law, rule,
regulation, statute, policy, procedure, directive, binding guideline or
interpretation, or treaty.
g) [*]
h) "OPERATING SPECIFICATIONS" means the description of the services to be
provided by USPS and the responsibilities and obligations of each of the
parties in connection therewith as set forth in Exhibit A to this
Agreement.
i) "ORDER" means any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made or rendered by any court,
administrative agency, or other Governmental Body.
j) "OVERNIGHT" means a domestic package delivery service with a published same
or next business day delivery commitment; or FedEx international express
services, except FedEx International Economy Service-REGISTERED TRADEMARK-;
or international delivery services with delivery commitments comparable
to those of FedEx international express services, with the exception of
FedEx International Economy Service-REGISTERED TRADEMARK-.
k) "PACKAGE" means any box or envelope that is accepted by FedEx for delivery
to the consignee.
l) "PERSON" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company,
joint venture, estate, trust, association, organization, labor union, or
other entity or Governmental Body.
m) "POST OFFICE LOCATION" means any post office, station, or branch which is
open to the public and staffed by USPS employees.
n) "PROCEEDING" means any action, audit, hearing, investigation, litigation or
suit (whether civil, criminal, administrative, investigative, or informal)
commenced, brought, conducted or heard by or before, or otherwise
involving, any Governmental Body.
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o) "SHIPMENT" means all Packages moving on an individually processed Airbill
or package tracking label.
p) "USPS SERVICES" means the services described in the Operating
Specifications to be provided by USPS to FedEx.
ARTICLE 2
USPS SERVICES
FedEx wishes USPS to provide the USPS Services and USPS hereby agrees to perform
the USPS Services. The parties acknowledge and agree that USPS is furnishing the
USPS Services to FedEx on a non-exclusive basis and may furnish such USPS
Services to any other overnight carrier with National Reach under substantially
similar conditions, but not more favorable conditions, than those provided to
FedEx under this Agreement.
ARTICLE 3
DISPUTE RESOLUTION
3.1 This Agreement shall be governed by and construed in accordance with
Federal Law or, in the absence of applicable Federal Law, the internal
laws of the State of New York.
3.2 In the event of any disputes arising out of, or in connection with this
Agreement, including any dispute relating to the construction or
interpretation of the rights and obligations of the parties hereto, the
parties agree to make a good faith effort to amicably resolve any such
dispute.
3.3 If the parties are unable to resolve the dispute through negotiations,
either party may pursue any available remedies.
3.4 [*]
ARTICLE 4
INDEPENDENT CONTRACTOR
The Parties intend that an independent contractor relationship will be created
by this Agreement. Each party is interested only in the results of the other
party's work and shall not exercise any control over the conduct or supervision
of the work or the means of its performance. Each party shall have full
responsibility for the collection and payment of its own international, federal,
state and local employment-related taxes and contributions, including penalties
and interest, insurance, social security, income tax, workers' compensation or
any other similar statute. Each party shall indemnify and hold the other
harmless for any liability (including taxes, interest, and penalties) resulting
from its improper or incorrect tax reporting, withholding, remitting, and
similar activities or obligations, or from the failure to file, collect, report
or pay any of the above mentioned employment taxes.
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ARTICLE 5
TAXES
5.1 Except as provided in 5.2 below, any and all taxes, excises, fees,
duties and assessments whatsoever (including interest and penalties)
("Tax" or "Taxes") imposed on USPS and for which USPS would be primarily
liable under applicable law, or for which USPS would be primarily liable
but for its sovereign immunity, arising out of the sale or performance
of the USPS Services, in any manner levied, assessed or imposed by any
government or subdivision or agency thereof having jurisdiction shall be
the sole responsibility and liability of USPS. If any government or
subdivision or agency thereof attempts to or actually levies, assesses
or imposes against FedEx any Tax or Taxes for which USPS would be
primarily liable, USPS shall have the sole responsibility of challenging
such levy, assessment or imposition, including paying and seeking refund
of such Tax and paying the reasonable out-of-pocket expenses of FedEx
attributable to such challenge. FedEx shall fully cooperate to assist
USPS in challenging such levy, assessment or imposition of Tax.
5.2 USPS' obligations under 5.1 shall not extend to any and all Tax or Taxes
imposed on FedEx and for which FedEx is primarily liable under
applicable law.
5.3 Nothing in this Article or elsewhere in this Agreement is intended to
imply that USPS is subject to any Tax or Taxes.
ARTICLE 6
USPS COMPENSATION
As consideration for the performance of the USPS Services, USPS shall receive
compensation from FedEx in accordance with Exhibit B.
ARTICLE 7
PAYMENTS
7.1 Payments shall be made in accordance with the payment procedures set
forth in Exhibit B to this Agreement. All payments shall be in United
States Dollars in current funds.
7.2 In no event whatsoever shall either Party exercise a lien on any
Shipment or Drop Box for reason of a claim against the other Party.
7.3 Payment by FedEx is not to be construed, in any manner, as an admission
by FedEx of liability to USPS. Payment is not to be construed, in any
proceeding, as evidence of entitlement on the part of USPS. FedEx
expressly reserves its right to assert a claim under Article 3 for the
recovery of any payment, or part of a payment, to which FedEx believes
USPS was not entitled. By making payment FedEx is not waiving any
claims, defenses or other matters relating to or against USPS.
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ARTICLE 8
INFORMATION REPORTING AND VERIFICATION
During the term of this Agreement, FedEx will provide to USPS certain data
reports related to Drop Box placements and traffic volumes, as more specifically
provided in Exhibit C.
ARTICLE 9
OBLIGATIONS OF FEDEX
9.1 FedEx shall remain a company in good standing under the laws of the
State of Delaware.
9.2 FedEx shall obtain and keep current all government licenses, permits and
approvals as are necessary for FedEx to perform its obligations under
this Agreement.
9.3 FedEx shall comply with all laws and regulations that may be applicable
to this Agreement and to all transactions and activities to be performed
hereunder.
9.4 FedEx shall be immediately relieved of any obligation to perform under
this Agreement if it has been determined by a court of competent
jurisdiction or by a Governmental Body with subject matter jurisdiction
that such performance would be in violation of any applicable law or
regulation.
ARTICLE 10
DISCLOSURE/TRADEMARKS
[*]
ARTICLE 11
OBLIGATIONS OF USPS
11.1 USPS shall obtain and keep current all government licenses, permits and
approvals as are necessary for USPS to perform its obligations under
this Agreement.
11.2 USPS shall comply with all laws and regulations that may be applicable
to it with regard to this Agreement and to all transactions and
activities to be performed hereunder. USPS shall not be required to
perform any of its obligations hereunder that have been determined by a
court of competent jurisdiction or by a Governmental Body with subject
matter jurisdiction to be in violation of any applicable law or
regulation.
11.3 [*]
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11.4 USPS shall render all reasonable assistance to FedEx in the placement of
Drop Boxes pursuant to this Agreement, including but not limited to
ensuring that local USPS management are informed of their
responsibilities under this Agreement and are instructed to fully
cooperate with designated FedEx personnel. USPS shall provide the USPS
resources necessary to complete USPS obligations with respect to this
Agreement, specifically including those resources needed to implement
the obligations set forth in Exhibit A and Exhibit B on a timely basis.
ARTICLE 12
LIABILITIES OF THE PARTIES
12.1 Subject to Article 13, USPS shall be liable to FedEx for all Losses (as
defined in Article 12.3) to the extent such Losses arise out of or
result from (directly or indirectly), or are in connection with:
(a) any breach by USPS of any of the terms of this Agreement;
(b) any breach of any representation or warranty made by USPS in this
Agreement, the Schedules hereto or any other certificate or document
delivered by USPS pursuant to this Agreement;
(c) any failure by USPS to perform or comply with any of its covenants
or obligations under this Agreement; or
(d) injuries to persons or property on or at USPS's property including
but not limited to property where FedEx Drop Boxes are placed
pursuant to this Agreement.
USPS agrees to provide FedEx Drop Boxes the same level of protection
from harm that it provides to its own property at Post Office
Locations. However, notwithstanding any other provision of this
Agreement, USPS is not liable to FedEx for any loss of, or damage to,
FedEx Drop Boxes or their contents resulting from the criminal or
mischievous acts of anyone other than a USPS employee or agent. FedEx
accepts the level of security at Post Office Locations on an "as is"
basis and will not assert a cause of action against USPS for lack of
adequate security.
12.2 FedEx shall be liable to USPS for all Losses (as defined in Article
12.3), to the extent such Losses arise out of, result from, or are in
connection with:
(a) any breach by FedEx of any of the terms of this Agreement;
(b) any breach of any representation or warranty made by FedEx in this
Agreement, or any other certificate or document delivered by FedEx
pursuant to this Agreement;
(c) any failure by FedEx to perform or comply with any of its covenants
or obligations under this Agreement;
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(d) any third party customer claims arising from or in connection with
the loss, damage or delay of any Shipment; or
(e) any injuries to persons or property caused by FedEx's property
(including but not limited to the FedEx Drop Boxes).
12.3 For purposes of this Agreement "Losses" shall mean the aggregate of any
and all payments for claims, liabilities, suits, actions, proceedings,
demands, charges, damages, impositions, assessments, levies, duties,
losses, diminution in value, costs, or expenses (including reasonable
attorney fees, expert witness fees, court costs and other costs of
investigation and defense) of every kind and nature, whether or not
involving a third-party claim, incurred by the party suffering the
Losses.
12.4 Neither party shall be liable to the other for the payment of any
indirect, special or consequential damages arising as a result of the
performance, non-performance or malperformance hereunder.
12.5 The liability of the parties set forth in this Article 12 shall not be
the exclusive area of liability of the Parties under this Agreement.
ARTICLE 13
RISK OF LOSS; LIMITATION OF LIABILITY
[*]
ARTICLE 14
REPRESENTATIONS AND WARRANTIES
14.1 USPS makes the followings representations and warranties:
(a) The execution and delivery by USPS of this Agreement and the
performance by USPS of its obligations hereunder have been duly
authorized by all necessary action of USPS, and this Agreement has
been executed and delivered by duly authorized officers of USPS.
(b) No authorization, approval, consent, permit, license, order,
designation, or declaration of or filing by or with any Governmental
Body under the federal laws of the United States is necessary in
connection with the execution and delivery of this Agreement by USPS
and the consummation of each of the transactions contemplated
hereby. As promptly as possible after the date of this Agreement,
USPS will make all notices and/or filings required by Legal
Requirements to be made by USPS in order to consummate the
transactions contemplated by this Agreement, and, as promptly as
possible after the date of this Agreement, USPS will cooperate with
FedEx with respect to any and all notices and/or filings that FedEx
is required by Legal Requirements to make.
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(c) To the best of the USPS' knowledge, there is no Proceeding pending
that challenges, or that prevents, delays, makes illegal, or
otherwise interferes with, this Agreement and the transactions
contemplated hereunder.
(d) To the best of the USPS' knowledge, there is no Order to which USPS
is subject that challenges, or that may have the effect of
preventing, delaying, making illegal, or otherwise interferes with,
this Agreement and the transactions contemplated hereunder.
(e) To the best of USPS' knowledge, there is no constitutional,
statutory, common law, or other basis on which USPS could terminate
this Agreement that would not be available to a private party. USPS
shall not assert the defense of sovereign immunity to a claim
brought by FedEx under this Agreement
14.2 FedEx makes the following representations and warranties:
(a) The execution and delivery by FedEx of this Agreement and the
performance by FedEx of its obligations hereunder have been duly
authorized by all necessary corporate or other action of FedEx, and
this Agreement has been executed and delivered by duly authorized
officers of FedEx.
(b) No authorization, approval, consent, permit, license, order,
designation, or declaration of or filing by or with any Governmental
Body under the federal laws of the United States is necessary in
connection with the execution and delivery of this Agreement by
FedEx and the consummation of each of the transactions contemplated
hereby. As promptly as possible after the date of this Agreement,
FedEx will make all notices and/or filings required by Legal
Requirements to be made by FedEx in order to consummate the
transactions contemplated by this Agreement, and, as promptly as
possible after the date of this Agreement, FedEx will cooperate with
USPS with respect to any and all notices and/or filings that USPS is
required by Legal Requirements to make.
(c) To the best of FedEx's knowledge, there is no Proceeding pending
that challenges, or that prevents, delays, makes illegal, or
otherwise interferes with, this Agreement and the transactions
contemplated hereunder.
ARTICLE 15
TERM AND TERMINATION
15.1 INITIAL TERM
This Agreement shall commence on January 10, 2001 and shall expire on
June 8, 2008. Not later than eighteen (18) months prior to the
expiration date, the Parties shall commence discussions with a view to
renewing this Agreement. The Parties shall agree not later than twelve
(12) months prior to the expiration of this Agreement whether this
Agreement shall be renewed. If the parties have not agreed to renew
this Agreement by such date, this Agreement shall expire in accordance
with its terms.
15.2 [*]
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ARTICLE 16
EVENTS OF DEFAULT
16.1 The occurrence of any one or more of the following events (the "Events
of Default") will constitute a default and breach of this Agreement:
(i) Failure by either Party to pay any fee, reimbursable or other payment
due pursuant to this Agreement and the continuance of that failure
for more than thirty (30) days after the date on which the payment
was due;
(ii) Failure of either Party to observe or perform any of the material
covenants, conditions or provisions of this Agreement, other than
the late payment of fees, reimbursables or other payments, where
the failure continues for a period of sixty (60) days after the
defaulting Party's receipt of notice of such failure; or
(iii) Failure of either Party to observe or perform its obligations in
accordance with the provisions of Section 10.1 of this Agreement.
16.2 Upon the occurrence of an Event of Default specified in Sections 16.1
(i), (ii) or (iii) the non-defaulting Party may exercise and shall be
entitled to any remedies available to it in law or equity, including the
right to terminate this Agreement in whole, without demand or judicial
resolution, by written notice effective upon three hundred sixty-five
(365) days notice to the defaulting party.
16.3 Upon the occurrence of an Event of Default specified in Section
16.1(iii), the defaulting Party will immediately discontinue all use of
the Public Statement or Advertisement identified in the notice of
default.
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ARTICLE 17
CONFIDENTIALITY
17.1 During the term of this Agreement and until the earlier of five (5)
years after such termination or until such time as the information is no
longer confidential as described in Article 17.2, each Party shall treat
as confidential and appropriately safeguard and shall not use for the
benefit of any person or corporation other than the other Party:
(i) written information identified in writing as confidential or
oral information promptly confirmed in writing as being
confidential, including such information disclosed by the
Parties during negotiations preceding the execution of this
Agreement;
(ii) written information or oral information promptly confirmed in
writing as confidential pertaining to a Party's business or
assets which is received at any time from a Party or its
Affiliates;
(iii) any information or knowledge concerning the methods of
operation, promotion, sale, or distribution used by a Party or
its Affiliates which may be communicated to the other Party or
its Affiliates or which a Party may otherwise acquire by virtue
of its performance of this Agreement, including but not limited
to FedEx customer information; or
(iv) any information that the recipient of which actually knows or
should reasonably have known is confidential or proprietary to the
other party, including but not limited to information related to
FedEx or USPS product mix.
17.2 Information shall not be considered confidential if it is:
(i) Generally known to the trade or public;
(ii) Rightfully possessed by a Party prior to the date of this
Agreement;
(iii) Received by a Party from a third party which rightfully possesses
it;
(iv) Independently developed by the other Party; or
(v) Releasable pursuant to Postal regulations addressing how
information is maintained by USPS. Those regulations are contained
at 39 CFR Part 265.
17.3 PERMITTED RELEASE: USPS and FedEx will not voluntarily release or
disclose Confidential Information to any other person, except, as
appropriate, to contractors and consultants used to implement this
Agreement, and to their outside auditors and attorneys. USPS and FedEx
are also permitted to release Confidential Information requested by
Congress or by any agency, branch, or other component of the United
States Government in the appropriate exercise of its oversight or
investigatory jurisdiction. Before releasing information in response to
such a request, a party will provide the other party with advance notice
of the impending release and, to ensure against
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further dissemination or disclosure by the requester, must include a
restrictive legend on all released information. Notwithstanding the
preceding sentence, if a federal law enforcement agency lawfully demands
the release of Confidential Information and advance notice is
impracticable, the disclosing party will immediately notify the other
party after such release.
17.4 REQUIRED RELEASE: Permission from the other party shall not be necessary
for disclosures to any federal, state or local governmental body, or to
a requester seeking documents under the Freedom of Information Act, 5
U.S.C. Section 552, provided such disclosures are required by applicable
law or regulation. Before releasing confidential information in response
to such a request, a party must provide the other party with advance
notice of the impending release, and, to ensure against further
dissemination or disclosure by the requester, must include a restrictive
legend on all released information.
ARTICLE 18
FORCE MAJEURE
Each Party shall be excused from performance under this Agreement resulting in
whole or in part from any of the following: perils of the air, public enemies,
criminal acts of any person or entity, public authorities acting with actual or
apparent authority (including U. S. Postal Inspectors), civil commotion, hazards
incident to a state of war, local or national weather conditions, national or
local disruptions in transportation networks or operations (of any mode) of
FedEx or any other entity, strikes or anticipated strikes of FedEx, USPS or any
other Person, natural disasters, disruption or failure of communication and
information systems, or any conditions that present a danger to each Party's
personnel. Notwithstanding, if an event of force majeure prevents USPS from
performing the USPS Services, in whole or in substantial part (affecting not
less than five hundred (500) Drop Boxes) for more than fourteen (14) consecutive
days, FedEx shall be entitled to a pro-rata reduction in the Drop Box Fees,
retroactive to the first day of the event of force majeure.
ARTICLE 19
ENTIRE AGREEMENT
This Agreement, together with all Exhibits, constitute the entire agreement and
understanding between the Parties in connection with the subject matter
described, and supersedes and cancels all previous negotiations, commitments and
writings related to the subject matter.
ARTICLE 20
AMENDMENTS OR MODIFICATIONS
In order to be binding upon USPS or FedEx any amendment, extension or renewal of
this Agreement must be in writing and signed by an Officer of USPS authorized to
bind the USPS and by an officer of FedEx authorized to bind the company.
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ARTICLE 21
ASSIGNMENT
Neither Party shall, directly or indirectly (whether by succession, merger, or
otherwise) assign, delegate or otherwise transfer this Agreement or any of its
rights or obligations hereunder, without the prior written approval of the other
(provided that FedEx may assign this Agreement to any of its Affiliates without
first obtaining such consent).
ARTICLE 22
WAIVER OF BREACH
No waiver of breach of any of the provisions of this Agreement shall be
construed to be a waiver of any succeeding breach of the same or any other
provision.
ARTICLE 23
NOTICES
Any notice, report, demand, acknowledgement or other communication which under
the terms of this Agreement or otherwise must be given or made by either Party,
unless specifically otherwise provided in this Agreement, shall be in the
English language and in writing, and shall be given or made by express delivery
service with proof of delivery, Certified Mail (return receipt requested),
facsimile with acknowledgement of receipt/proof of receipt, or personal
delivery, addressed to the respective parties as follows, or as the Parties may
otherwise notify each other:
To USPS: Vice President, Retail, Consumers & Small Businesses
U.S. Postal Service
▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
General Counsel
U.S. Postal Service
▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To FedEx: Executive Vice President
Operations & System Support
Federal Express Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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With a copy to:
Senior Vice President & General Counsel
Federal Express Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Such notice, report, demand, acknowledgement or other communication shall be
deemed to have been given or made in the case of express delivery service with
tracking and tracing capability on the date of signature of the proof of
delivery, in the case of Certified Mail on the fifth business day in the place
of receipt after the date sent, in the case of telex and facsimile on the date
of the acknowledgement of receipt/proof of receipt and in the case of personal
delivery upon receipt evidencing such delivery.
ARTICLE 24
SEVERABILITY
24.1 If any term, provision, covenant or condition of this Agreement is held
by a court or board of competent jurisdiction to be invalid or
unenforceable, or the actions of a Governmental Body have the effect of
causing a term, provision, covenant or condition of this Agreement to be
invalid, the remainder of the provisions shall continue in full force
and effect unless the rights and obligations of the parties have been
materially altered or abridged by such invalidation or unenforceability.
24.2 If this Agreement is materially altered or abridged, then USPS and FedEx
will meet to negotiate in good faith to reach a mutually satisfactory
modification to this Agreement. If the Parties are unable to reach a
mutually satisfactory modification within thirty (30) days of the
effective date of the Order, then either Party may elect to treat such
alteration or abridgement as a court ordered termination of this
Agreement.
ARTICLE 25
ORDER OF PRECEDENCE CLAUSE
Any inconsistency in the provisions of this agreement will be resolved by giving
precedence in the following order:
a. Clauses of the Agreement.
b. Provisions contained in the Exhibits
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IN WITNESS WHEREOF, the Parties have signed this Agreement in duplicate, one for
each of the parties, as of January 10, 2001.
UNITED STATES POSTAL SERVICE
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Vice President, Retail,
Consumers & Small Businesses
FEDERAL EXPRESS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Senior Vice President,
Central Support Services
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EXHIBIT A
OPERATIONAL SPECIFICATIONS
1. PLACEMENT OF DROP BOXES
1.1. FedEx may place a Drop Box at any Post Office Location.
1.2. Wherever feasible, FedEx Drop Boxes will be installed out of
doors. If no outdoor location is feasible, and if conditions
permit, the USPS will provide space inside a Post Office
Location for installation of a Drop Box or an appropriately
sized slot.
1.3. FedEx and USPS officials will agree upon the siting of Drop
Boxes on a facility-by-facility basis. The site selection
process will take the following factors into account:
1.3.1. No other drop box or collection box will be placed in
front of the FedEx Drop Box, or no closer than 36
inches on either side;
1.3.2. FedEx Drop Boxes will be placed so as to provide a safe
and unencumbered environment for customers, FedEx
couriers, and representatives;
1.3.3. Safety, lighting, and visibility;
1.3.4. High customer traffic, parking, traffic flow, and ease
of access;
1.3.5. Applicable local ordinances;
1.3.6. FedEx Drop Boxes will be visible, and unobstructed from
view or access; and
1.3.7. No other device, box or material may be placed on,
attached to, or removed from the FedEx Drop Box,
without prior written consent of FedEx.
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1.4. FedEx Drop Boxes may not be removed or relocated without the
prior written consent of FedEx, except in case of emergency.
Following any such emergency removal or relocation, USPS will
promptly notify FedEx and work with FedEx to facilitate
redeployment of such box as quickly as possible;
1.5. FedEx and the USPS will agree on a process for determining the
proper siting of Drop Boxes and for resolving any disputes that
may arise between the parties.
1.6. FedEx will be solely responsible for determining whether any
local ordinances apply to the placement of Drop Boxes at a
particular Post Office Location, for complying with such
ordinances, and for paying any costs associated with complying
with such ordinances.
1.7. Installation of FedEx Drop Boxes may begin no earlier than 30
days after the Agreement is signed by both parties.
2. DIMENSIONS AND DESIGN OF DROP BOXES
2.1. FedEx Drop Boxes may not exceed the following dimensions: 53
inches in height, 27 inches in width, and 30 inches in depth.
2.2. If FedEx wishes to materially alter the design of Drop Boxes to
be installed at Post Office Locations, FedEx will submit a
proposed new design to the USPS for prior approval. The USPS
may disapprove a design change only if it reasonably believes
the change would: (a) increase one of the dimensions beyond the
parameters set forth in clause 2.1, or (b) create a significant
problem with regard to safety, security, or customer confusion.
3. OPERATIONS
3.1. FedEx is solely responsible for retrieving packages from its
Drop Boxes. The USPS will not interfere with the ability of
FedEx customers to deposit packages in FedEx Drop Boxes or the
ability of FedEx personnel to retrieve packages from these
boxes.
3.2. The USPS will not be responsible for any actions by a third
party that might have an impact on a FedEx Drop Box at a Post
Office Location, unless the third party is acting under the
direction and control of the USPS.
3.3. FedEx is solely responsible for the costs and labor of Drop Box
installation and maintenance, including the stocking of
envelopes and labels. The USPS will not maintain supplies for
FedEx.
3.4. To avoid upsetting customers, USPS employees may allow
customers to mistakenly hand FedEx Packages to them. However,
USPS employees will
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not weigh or rate FedEx packages or respond to customer
inquiries regarding FedEx service features.
3.5 FedEx and the USPS will jointly develop procedures for
exchanging packages and mail mistakenly deposited in each
other's collection boxes or tendered to each other's personnel.
Recognizing that customers of both FedEx and the USPS will from
time to time mistakenly deposit packages or mail into the wrong
Drop Box for the service selected, the following process must
be followed by each respective organization:
(a) As soon as a pick up carrier or courier discovers that
Packages have been deposited into the wrong Drop Box or
collection box, he or she will immediately transfer the
Packages to the correct receptacle. If the pick up time
has already occurred for the correct Drop Box or
collection box, meaning the package will not "go out"
on the day deposited, USPS will call the local FedEx
dispatch office, whose phone number will be provided by
FedEx and kept on file by the local Post Office.
(b) [*]
4. Operational Procedures
4.1 Standard Operational Procedures will be developed and agreed to
by both parties. These Operational procedures will be
maintained, and signed off on by:
- For FedEx, the Managing Director of Retail Operations
- For the USPS, the Manager, Retail Operations
4.2 A quarterly business review meeting or conference call will
take place during the term of this Agreement, held by the above
mentioned representatives, and /or their designees, to review
operational issues, concerns, and in general the operational
performance of this program.
4.3 FedEx Drop Box Placement Process for USPS Locations
4.3.1 The USPS will create internal communications pieces for
the local USPS Postmaster, Branch Manager, Station
Manager and anyone else impacted by the Drop Box
placements, reinforcing the existence of the Drop Box
program, what to expect and the duty of USPS and FedEx
personnel to cooperate in placement of FedEx Drop Box
at USPS Post Office Locations. This communication will
outline general guidelines and responsibilities of both
FedEx and USPS personnel and the process for site
selection and box installation.
4.3.2 A FedEx Retail Account Executive will make contact with
the USPS installation contact person (postmaster,
branch manager).
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4.3.3 A FedEx Retail representative and USPS installation
contact person will cooperatively determine the
specific placement of the Drop Box.
4.3.4 A copy of the FedEx placement order will be left with
USPS personnel with placement specifics.
4.3.5 Then FedEx will proceed with normal Drop Box placement
process.
4.3.6 Then, a FedEx vendor will contact the USPS Installation
contact person to coordinate installation.
4.4 FedEx Drop Box Placement Responsibilities
4.4.1 USPS shall be responsible for the following activities
with respect to the Drop Box:
Snow/ice removal
Landscaping/maintenance of the adjacent property
Good neighbor vigilance
Calling the FedEx Hotline [*] when appropriate
4.4.2 FedEx shall be responsible for the following activities
with respect to the Drop Box:
Daily pick up
General mechanical repair/maintenance
Removal/relocation
Site restoration
Supplies
Marketing material
Good Neighbor Vigilance
4.4.3 Operational Exceptions. USPS shall instruct its local
personnel to contact FedEx at [*] to address
operational exceptions that may arise (damaged boxes,
graffiti, etc.).
4.5 Drop Box Removals
FedEx may remove or replace the Drop Box from any Post Office
Location during the term of this Agreement. Upon the expiration
or early termination of this Agreement, FedEx and USPS will
coordinate the orderly removal of all Drop Boxes from Post
Office Locations. [*]
4.6 Post Office Location Openings and Closures
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USPS will notify FedEx as soon as possible after a decision has
been made to open, close or relocate a Post Office Location.
Unless an emergency, such as a fire or flood, compels USPS to
close a Post Office Location, USPS will notify FedEx not later
than ninety (90) days in advance of the implementation date of
any such decision.
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EXHIBIT B
DEPLOYMENT AND PRICE SCHEDULE
[*]
EXHIBIT C
INFORMATION REPORTING AND VERIFICATION
REPORT REPORTING PERIOD
Start date/# Drop Boxes/Tier Monthly
[*] [*]
Overnight volume Monthly
Deferred Baseline volume One time end of Year 3
[*] [*]
Prior to or during the operations tests described in Exhibit B to this
Agreement, FedEx will provide USPS and USPS consultants a detailed demonstration
of the data collection system that will be used in generating these reports. [*]
* BLANK SPACES CONTAINED CONFIDENTIAL INFORMATION WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.