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FLEET-ON-TRACK(SM)
SERVICES AGREEMENT
BY AND BETWEEN
GTE TELECOMMUNICATION SERVICES INCORPORATED
and
HIGHWAYMASTER CORPORATION
GTE TSI Proprietary and Confidential Information
Fleet-On-Track is a service and service ▇▇▇▇ of GTE TSI
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SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the "Agreement"), dated as of April 29, 1999,
is entered into by and between GTE Telecommunication Services Incorporated, a
Delaware corporation ("Provider"), and HighwayMaster Corporation, a Delaware
corporation ("HighwayMaster" or "Customer"). (Provider and Customer collectively
the "Parties.")
WITNESSETH:
WHEREAS, the Parties wish to enter into this Agreement whereby the
Provider will supply certain software and services for the Customer's use in
connection with Customer's business;
NOW, THEREFORE, in consideration of the premises, the terms and
conditions set forth herein, the mutual benefits to be gained by the performance
thereof and other good, valuable, mutual and binding consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS. Unless the context otherwise requires, the terms defined
in this Section 1 shall have the meanings herein specified for all purposes of
this Agreement, applicable to both the singular and plural forms of any of the
terms herein defined:
1.1 "Affiliate" shall mean a Person, association, partnership,
corporation or joint-stock company or trust that, now or in the future, directly
or indirectly, through one or more intermediaries, controls, is controlled by or
is under common control with, another Person or entity. Control shall be defined
as (i) ownership of a majority of the voting power of all classes of voting
stock or (ii) ownership of a majority of the beneficial interests in income and
capital of an entity other than a corporation.
1.2 "Carrier" shall mean an entity licensed by the Federal
Communications Commission ("FCC") to provide cellular service, broadband
personal communications services ("PCS"), or specialized mobile radio ("SMR")
service through the use of the entity's own licensed facilities. For the
purposes of this Agreement, Host Carrier and serve carriers are Carriers as
defined herein.
1.3 "CGSA" shall mean a cellular geographic service area of a Carrier
which is defined by the Federal Communications Commission as either a
metropolitan service area ("MSA") or a rural service area ("RSA").
1.4 "Client" shall mean a Person that receives services from the
HighwayMaster System who is a customer of Customer.
1.5 "Customer Information" shall mean any and all information, in any
tangible or electronic form, which bears a legend "HighwayMaster Confidential
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Information - Subject to Use and Disclosure Restrictions Pursuant to Contract"
and which has been provided to the Designated GTE Recipient; provided, however,
the foregoing shall not include that portion of any information made available
by Customer without restrictions on use or disclosure or that portion of any
information which is readily discernable by the performance of this Agreement.
All information, even if in writing or other tangible form, but which does not
bear the legend described above, shall not be considered "Customer Information."
In addition, this definition is subject to the limitations of Section 7.1(b)
below.
1.5a "Designated GTE Recipient" shall mean the General Counsel of
Provider, or any other individual designated by GTE in writing, pursuant to
Section 11.5 of this Agreement, to be the recipient of Customer Information.
1.5b "Designated HighwayMaster Recipient" shall mean the General
Counsel of Customer, or any other individual designated by HighwayMaster in
writing, pursuant to Section 11.5 of this Agreement, to be the recipient of
Provider Information.
1.6 "HighwayMaster System" shall mean the system module ("System
Module"), display module ("Display Module"), HighwayMaster software provided to
its Clients, the Network Services Center(s) ("NSC"), interface between
HighwayMaster and the NSC, interface between the NSC and System Module.
1.7 "Host Carrier" shall mean the Carrier that has entered into an
agreement with Customer to sponsor the administration of the HighwayMaster
service through items such as the administration of the NPA/NXXs, the BID and
the wireless service agreements, and possibly other services associated with the
HighwayMaster wireless coverage areas.
1.8 "Host System" shall mean the Provider's system including without
limitation all equipment, processors, software and other technology created,
designed, used or owned by Provider to provide the Services to the Customer.
1.9 "Interface" shall mean the routines and protocols, regardless of
the media on which contained, that enable the passing of information (either
one-way or bi-directional) between the different systems, or between a
particular system and an input/output device, in a usable form.
1.10 "Material Default" means any Material Breach which has not been
cured within thirty (30) days after notice of such breach is given to the
breaching Party by the non-breaching Party.
1.11 "Material Breach" means, with respect to either Party to this
Agreement, any material breach of any obligation, representation, warranty, or
covenant of such Party contained in this Agreement which has caused or will
cause the other Party to this Agreement to incur substantial monetary damages.
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1.12 "Provider Information" shall mean any and all information, in any
tangible or electronic form, which bears a legend "GTE Confidential Information
- Subject to Use and Disclosure Restrictions Pursuant to Contract" and which has
been provided to the Designated HighwayMaster Recipient; provided, however, the
foregoing shall not include that portion of any information made available by
Provider without restrictions on use or disclosure or that portion of any
information which is readily discernable by the performance of this Agreement.
All information, even if in writing or other tangible form, but which does not
bear the legend described above, shall not be considered "Provider Information."
In addition, this definition is subject to the limitations of Section 7.2(b)
below.
1.13 "Provider Interfaces" shall mean the Interfaces specifically
designed and created by Provider and used by Provider and/or Customer in
connection with the Services provided under this Agreement, including the
Interface(s) between the Host System and the System Modules used by Clients as
described in the Technical Specifications, and the Interface(s) between the Host
System and the NSC System, each as modified and updated from time to time.
1.14 "Services" shall mean the services to be provided to Customer for
use with the HighwayMaster System by Provider as described or identified in
Exhibits A and B attached hereto and incorporated herein by this reference.
1.15 "Software" shall mean the software, both source and object code,
supporting documentation, all modifications and derivatives and other protected
technology created or designed by or for Provider, or owned by Provider that is
used in the provision of the Services under this Agreement, including but not
limited to the Provider Interfaces.
1.16 "Term" shall have the meaning set forth in Section 9.1 of this
Agreement.
1.17 "Person" shall mean any individual, corporation, partnership,
firm, joint venture, association, joint stock company, trust, estate,
unincorporated organization, governmental or regulatory body or other entity.
2. PROVIDER OBLIGATIONS. In addition to the other covenants, terms and
conditions set forth in this Agreement, Provider agrees to perform the
obligations set forth in this Section 2.
2.1 Obligation to Provide Services. Provider agrees to provide to
Customer the Services within the United States of America, Mexico and Canada. To
the extent Provider or Customer believe any revision/alteration is needed,
Provider or Customer shall notify the other Party immediately of the proposed
revision/alteration and Customer and Provider will use their best efforts to
approve a revision/alteration that permits the Services to be provided in
accordance with this Agreement. Notwithstanding the above, neither Party shall
be required to alter or revise its business operations or systems in a manner
that would be detrimental to its other business operations, customers or Clients
or
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which would require substantial capital expenditures. [TEXT HAS BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SEC.]
2.2 Billing and Payment for Status Coding Transactions. Customer
intends to enter into agreements ("Carrier Status Coding Agreements") with
Carrier(s) that will provide for compensation to Carrier(s) for each status
coding transaction that occurs on a Carrier's cellular system. Provider's
obligations set forth in this Section are subject to Customer entering into the
Carrier Status Coding Agreements and notifying Provider in writing that such
agreements have been executed. To the extent Provider is able to interface with
a Carrier's cellular system, Provider shall be in possession of and shall be
able to generate data on the number of status coding transactions that occur on
each Carrier's cellular system during the monthly cellular/roaming cycle. As
part of the Services, Provider agrees that it will create two copies of two
reports for each Carrier showing the number of transactions on such Carrier's
cellular system for each MSCID. Provider shall also provide Customer with a
magnetic billing tape containing the two reports. Customer will be solely
responsible for translating the information on the tape and paying the
Carrier(s) in accordance with such information.
2 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SEC.]
3. PROVIDER REPRESENTATIONS.
3.1 Other Material Agreements. The execution, delivery and performance
of this Agreement does not conflict with or result in a material breach of any
provision of any material agreement to which Provider is a party.
3.2 Valid Execution. This Agreement has been duly executed and
delivered by an authorized representative of Provider and constitutes a valid
and legally binding obligation of Provider, enforceable against it in accordance
with its terms.
4. CUSTOMER OBLIGATIONS. In addition to the other covenants, terms and
conditions set forth in this Agreement, Customer agrees to perform the
obligations set forth in this Section 4.
4.1 Customer's Use of Services. Customer agrees to use the Services
only in connection with the use, sale, distribution or operation of the
HighwayMaster System or a substantial portion thereof. Customer may resell the
Services separately from the HighwayMaster System in the future only upon
obtaining advance written consent from Provider, which consent may be withheld
in the sole discretion of Provider. To the extent Provider grants such consent,
the Parties must negotiate mutually acceptable terms upon which the Services
could be resold.
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4.2 Customer's Duties.
(a) Customer is responsible for taking all actions necessary
to reach agreement with Carrier(s) to provide the interface with
Provider's Host System so that Provider is able to provide the Services
in a Carrier's market. Customer acknowledges and agrees that it is
solely responsible for such relationships with Carrier(s) and that
Provider is not responsible for any inability to provide Services due
to an action or omission by Carrier or Customer that causes the
Services to be inoperable. Provider agrees to use reasonable efforts to
assist Customer to locate and identify problems in its interfaces with
Carrier(s); provided, however, that Provider may charge Customer
additional amounts for such assistance.
(b) Customer agrees to maintain and operate the HighwayMaster
System or any related equipment, software, hardware or other technology
used in connection therewith in such a manner so that Customer will
provide, send and receive any information, data or messages in the
specified message format that complies with Provider's then current
specifications therefor and enables Provider to provide the Services.
(c) Customer will be solely responsible for any translations
of the status code messages, as more fully described in Section 4 of
Exhibit A, received by its Clients.
(d) Customer will notify Provider of any Carrier or CGSA that
is properly added to or deleted from the HighwayMaster System and
Provider will have five (5) business days from the date of such
notification to make the addition or deletion to its Host System.
(e) Customer agrees that it will not modify or alter the
HighwayMaster System or any related equipment, software, hardware or
other technology used in connection therewith in a way which would not
be in compliance with Provider's then current specifications applicable
to Services or prevent or substantially hinder the provision of the
Services to Customer.
(f) As more fully set forth in Section 1 of Exhibit C,
Customer will use its best efforts to identify and correct any of the
mobile unit's System Modules or Display Modules that are generating
excessive and/or inaccurate transactions. Further, Customer will give
Provider thirty (30) days prior written notice of any modifications,
alterations or revisions to the HighwayMaster System or its business
operations that could significantly increase the number of transactions
to be processed by Provider.
5. CUSTOMER REPRESENTATIONS.
5.1 Other Material Agreements. The execution, delivery and performance
of this Agreement does not conflict with or result in a material breach of any
provision of any material agreement to which Customer is a party.
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5.2 Valid Execution. This Agreement has been duly executed and
delivered by an authorized representative of Customer and constitutes a valid
and legally binding obligation of Customer, enforceable against it in accordance
with its terms.
6. OWNERSHIP OF INTELLECTUAL PROPERTY.
6.1 No License of Intellectual Property.
(a) Nothing herein shall be construed to grant Customer any
license, express or implied, under any patents, copyrights, or
trademarks of Provider or any of its Affiliates or any improvements,
modifications or improvements thereto, except as may be necessary for
Customer's performance of its obligations under this Agreement and its
Client's use of Services provided pursuant to this Agreement, and then
only for the term of this Agreement, and to the extent provided in
Section 10.7. Provider agrees, however, to indemnify and hold harmless
Customer from any and all claims, losses, damages, causes of action,
costs (including reasonable attorneys fees) or expenses incurred by
Customer as a result of any claim or action brought by a third party
arising out of or resulting from the use of any Software or hardware
provided by Provider to Customer or used by Provider in connection with
the Services provided pursuant to this Agreement. This indemnity shall
not extend to: any use of such Software or hardware other than when
used in connection with the Services under this Agreement;
modifications to such Software or hardware made by or for the Customer;
combinations of such Software and/or hardware with other software,
hardware or functionality not provided by Provider; or compliance with
Customer provided specifications. The foregoing indemnity shall not
extend to any technical assistance given by Provider in the course of
performing this Agreement because this Agreement does not encompass or
contemplate such technical assistance.
(b) Nothing herein shall be construed to grant Provider any
license, express or implied, under any patents, copyrights, or
trademarks of Customer or any of its Affiliates or any improvements,
modifications or improvements thereto, except as may be necessary for
Provider's performance of its obligations under this Agreement, and
then only for the term of this Agreement. Customer agrees, however, to
indemnify and hold harmless Provider from any and all claims, losses,
damages, causes of action, costs (including reasonable attorneys fees)
or expenses incurred by Provider as a result of any claim or action
brought by a third party arising out of or resulting from the use of
any software or hardware provided by Customer to Provider or used by
Customer or Clients in connection with this Agreement. This indemnity
shall not extend to: any use of such software or hardware other than
when used in connection with the Services under this Agreement;
modifications to such software or hardware made by or for Provider;
combinations of such software and/or hardware with other software,
hardware or functionality not provided by Customer or Clients; or
compliance with Provider provided specifications. The foregoing
indemnity further shall not extend to any
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technical assistance given by Customer or Clients in the course of
performing this Agreement because this Agreement does not encompass or
contemplate such technical assistance.
6.2 No Transfer of Ownership. Nothing in this Agreement shall be
construed as transferring ownership of any property, tangible or intangible,
including without limitation intellectual property. Subject to the license
rights set forth in Sections 6.1(a) and 6.1(b), nothing in this Agreement shall
be construed as transferring license rights in any property, tangible or
intangible, including without limitation intellectual property. The Parties have
entered into a separate agreement contemporaneously herewith that addresses
ownership of intellectual property.
6.3 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
7. SAFEGUARDING OF INFORMATION.
7.1 Customer Information.
(a) Use of Customer Information. Except and to the extent set
forth in this Agreement, nothing herein shall constitute a grant of
license to Provider of Customer Information. Provider may only use the
Customer Information to the extent set forth herein or as required to
perform its obligations under this Agreement, unless Provider obtains
prior written consent from Customer to use the Customer Information for
another purpose. Provider may not disclose the Customer Information to
any third party (other than to any Affiliate provided that they have a
reasonable need for such disclosure and other than to contractors
performing services for Provider and potential successors in interest,
provided such contractors and potential successors in interest enter
into written agreements with Provider restricting further use and
disclosure of Customer Information) without the prior written consent
of Customer. If Provider receives or is served with any order,
subpoena, demand or other request from any governmental agency, court
or other legal forum to produce Customer Information ("Request for
Production"), Provider will provide Customer with prompt notice of such
Request for Production so that Customer, at its expense, may seek a
protective order or such other remedy to prevent production of the
Customer Information. If Provider is ultimately compelled, by a court
or other legal forum, which has authority, to comply with the Request
for Production, Provider will not be in violation of this Section. Upon
termination or expiration of this Agreement or, with respect to any
Customer Information, on such earlier date that Provider in its
opinion, shall no longer require the Customer Information to provide
the Services hereunder, Provider will, at Customer's request, either
erase the Customer Information from any files maintained by Provider or
return the Customer Information to Customer. Provider agrees to protect
and safeguard the confidentiality of the Customer Information to the
same degree and extent as Provider protects and safeguards its own
confidential information.
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(b) Exclusions to Obligations Relating to Customer
Information. Notwithstanding Section 7.1(a) above, Customer Information
shall not include, and this Agreement shall impose no obligation on
Provider to protect, not disclose or not use that portion of any
Customer Information that:
(1) Prior to its disclosure by Customer, is lawfully
and rightfully known by or available to Provider or its
Affiliates (from other than Customer or its Affiliates),
without restriction on use or disclosure;
(2) Through no breach of this Agreement or fault on
the part of the Provider, is or hereafter becomes part of the
public domain (i.e., without restriction on use or
disclosure);
(3) Is developed by or for the Provider independently
from and without access to Customer Information;
(4) Is lawfully received by the Provider from a third
party without restriction on use or disclosure and without
breach of this Agreement or any other agreement, or breach of
any fiduciary obligation or obligation of confidentiality; or
(5) Is approved in writing by Customer for disclosure
to third parties or for other uses.
7.2 Provider Information.
(a) Use of Provider Information. Except and to the extent set
forth in this Agreement, nothing herein shall constitute a grant of
license to Customer of Provider Information. Customer may only use the
Provider Information to the extent set forth herein or as required to
perform its obligations under this Agreement, unless Customer obtains
prior written consent from Provider to use the Provider Information for
another purpose. Customer may not disclose the Provider Information to
any third party (other than to any Affiliate provided that they have a
reasonable need for such disclosure and other than to contractors
performing services for Customer and potential successors in interest,
provided such contractors and potential successors in interest enter
into written agreements with Customer restricting further use and
disclosure of Provider Information) without the prior written consent
of Provider. If Customer receives or is served with any order,
subpoena, demand or other request from any governmental agency, court
or other legal forum to produce Provider Information ("Request for
Production"), Customer will provide Provider with prompt notice of such
"Request for Production" so that Provider, at its expense, may seek a
protective order or such other remedy to prevent production of the
Provider Information. If Customer is ultimately compelled, by a court
or other legal forum, which has authority, to comply with the Request
for Production, Customer will not be in violation of this Section. Upon
termination or expiration of this Agreement or, with respect to any
Provider Information, on such earlier date that Customer in its
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opinion, shall no longer require the Provider Information to perform
its obligations under this Agreement, Customer will, at Provider's
request, either erase the Provider Information from any files
maintained by Customer or return the Provider Information to Provider.
Customer agrees to protect and safeguard the confidentiality of the
Provider Information to the same degree and extent as Customer protects
and safeguards its own confidential information.
(b) Exclusions to Obligations Relating to Provider
Information. Notwithstanding Section 7.2(a) above, Provider Information
shall not include, and this Agreement shall impose no obligation on
Customer to protect, not disclose or not use that portion of any
Provider Information that:
(1) Prior to its disclosure by Provider, is lawfully
and rightfully known by or available to Customer or its
Affiliates (from other than Provider or its Affiliates),
without restriction on use or disclosure;
(2) Through no breach of this Agreement or fault on
the part of the Customer, is or hereafter becomes part of the
public domain (i.e., without restriction on use or
disclosure);
(3) Is developed by or for the Customer independently
from and without access to Provider Information;
(4) Is lawfully received by the Customer from a third
party without restriction on use or disclosure and without
breach of this Agreement or any other agreement, or breach of
any fiduciary obligation or obligation of confidentiality; or
(5) Is approved in writing by Provider for disclosure
to third parties or for other uses.
Except for exception (5), the foregoing exceptions shall not apply to
Software.
7.3 EXCEPTIONS. The Parties acknowledge and agree that the above
Confidentiality provisions do not limit either Party from disclosing this
Agreement to Host Carrier on a "need to know basis" to permit performance
hereunder. The parties further acknowledge that the Provider Information and the
Customer Information may be disclosed by the receiving party to (i) the
receiving party's attorneys, accountants, and financial advisors, and (ii) a
prospective purchaser or merger partner, provided such recipients agree in
writing not to further use or disclose the information consistent with the
provisions of this Agreement.
8. COMPENSATION.
8.1 Process for Compensation. Customer will compensate Provider for the
Services in accordance with the terms, rates and charges set forth in Exhibit C
attached hereto. Provider will prepare and send to Customer monthly statements
of the amounts
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owed by Customer to Provider. Customer will pay Provider within net thirty (30)
days following receipt of such statement ("Due Date"). Receipt shall be deemed
to have occurred three (3) days after such statement has been deposited in the
U.S. Mail. If Customer fails to pay Provider by the Due Date, any and all
outstanding amounts due Provider shall accrue interest at the rate of one and a
half percent (1.5 %) per month or the maximum amount of interest allowed by law,
whichever is less.
8.2 Disputes Regarding Compensation. To the extent Customer has a
legitimate dispute regarding amounts owed to Provider (the "Disputed Amount"),
Customer agrees that it shall continue to pay Provider all amounts that are
undisputed and seventy five percent (75%) of the Disputed Amount by the Due
Date. Customer shall simultaneously with payment of any portion of a Disputed
Amount notify Provider of the dispute and then shall rely upon the Dispute
Resolution Provisions in Sections 11.19 and 11.20 of this Agreement. Customer
must notify Provider in writing of any dispute on or with a statement within one
hundred twenty (120) days after Customer has received such statement. To the
extent Customer does not prevail on a Disputed Amount, Provider shall be
entitled to interest as set forth in Section 8.1 on the unpaid Disputed Amount
from the date such Disputed Amount was originally due and payable.
9. TERM OF AGREEMENT; RENEWAL OPTION.
9.1 Term. The initial term of this Agreement shall be for a period of
three calendar years commencing on the date of execution of this Agreement by
both Parties and ending on the third anniversary of such date (the "Initial
Term"), unless terminated earlier as provided herein.
9.2 Renewal Term. Unless earlier terminated in accordance with any of
the provisions of Section 10, upon expiration of the Initial Term, this
Agreement shall automatically renew upon the same terms and conditions for up to
ten (10) consecutive one (1) year renewal terms (a "Renewal Term"), provided,
however, that
(a) Provider will have the right to revise the terms of
compensation set forth in Exhibit C of this Agreement for each one year Renewal
Term. Customer and Provider acknowledge and agree that Provider shall have the
right to revise the compensation to receive all of Provider's costs, overhead,
administrative fees and a reasonable profit margin to be determined by Provider;
(b) Provider shall not have terminated this Agreement in
accordance with its rights set forth in Section 10 of this Agreement or any
other rights of termination hereunder; and
With respect to the revision of compensation in Section 9.2(a),
Provider will give Customer an amendment (the "Compensation Amendment") to this
Agreement ready for execution setting forth the compensation revisions at least
ninety (90) days prior to the effective date of such revision. The effective
date of any Compensation Amendment shall be established by Provider, but in no
event shall it be prior to the expiration of the
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Term of this Agreement or any then applicable Renewal Term. If Customer does not
execute the Compensation Amendment by the expiration of the Term or Renewal
Term, the Services shall automatically be placed on month-to-month status until
such time as the Compensation Amendment is executed by Customer. Compensation
for any month-to-month Services shall be the amounts and rates which are in
effect as of the date of expiration of the Term or the applicable Renewal Term
plus a ten percent (10%) special handling fee. To the extent Customer fails to
execute the Compensation Amendment or the Parties have not entered into a new
agreement for the Services and the Services have been provided on a
month-to-month basis for twelve (12) months, Provider shall have the option to
terminate the Services upon sixty (60) days advance written notice to Customer
and Customer shall have no right to renew, extend or otherwise continue this
Agreement.
10. TERMINATION; NONRENEWAL.
10.1 Termination for Cause. In the event of a Material Default by
either Party under this Agreement, the nondefaulting Party may terminate this
Agreement by giving notice of such termination to the other Party to this
Agreement, which notice of termination shall specify a date no earlier than
sixty (60) days after the date such notice is given for such termination. To the
extent the defaulting Party cures the Material Default within the thirty (30)
day cure period provided for in the Definition of Material Default, this
Agreement cannot be terminated unless a subsequent notice of Material Default is
provided hereunder.
10.2 Termination for Nonpayment. In the event that Customer fails to
pay Provider any amounts owed for the Services by the Due Date and Customer
fails to fully cure such payment default within ninety (90) days after notice by
Provider of such payment default, then Provider may terminate this Agreement by
giving notice of such termination to Customer, which notice of termination shall
specify a date no earlier than the date such notice is given for such
termination.
10.3 Termination for Insolvency. If Customer makes an assignment for
the benefit of creditors or files a voluntary petition under Title 11 of the
United States Code or under any similar state insolvency laws or if Agent shall
have an involuntary petition for bankruptcy filed against it under Title 11 of
the United States Code and such involuntary petition is not dismissed within
thirty (30) days; or a trustee or receiver is appointed to administer Agent's
business or assets, Provider shall have the right to terminate this Agreement
effective upon notification of such termination to Customer.
10.4 Nonrenewal for Discontinued Service. To the extent Provider or any
of its successors or assigns ceases to offer or provide the Services or any
portion thereof, Provider shall not be required to renew this Agreement after
the Term or applicable Renewal Term as to all or that portion of the Services
which Provider no longer offers or provides, and Customer shall have no rights
of renewal. In the event of nonrenewal under this Section, Provider shall
continue to provide the Services to Customer for a period of ninety (90) days
plus a reasonable transition period of not more than an additional ninety (90)
days.
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10.5 Termination For Discontinued Business. To the extent Provider
ceases to operate all or substantially all of its business operations, Provider
shall not be obligated to provide the Services under this Agreement.
10.6 Termination for Convenience/Nonrenewal. At any time after the
first year of the Initial Term, either Party may provide the other Party with a
written six months' notice of its intent to terminate the Agreement for
convenience; immediately following the end of this six (6) months notice period,
there will be an additional period of twelve (12) months in which the Parties
will transition Customer from Provider's Services. This eighteen month time
period shall be known as the "Transition Period". During the Transition Period,
Customer will be responsible for writing requirements and developing an
alternative to Provider's Services. Provider will cooperate in good faith with
Customer during the Transition Period including providing reasonable support for
testing, and at Provider's discretion, providing input for requirements.
Provider will continue to provide Services under the terms of this Agreement
during the Transition Period. Changes to functionality will not be implemented
except as mutually agreed upon in writing by the Parties. Customer is obligated
to pay Provider for the Services provided during the Transition Period. If
Customer substantially transitions off of Provider's Services at any time during
the Transition Period (that is, moves vehicles to another HLR/VLR), Provider
will invoice and Customer will pay the average monthly amount of the last twelve
(12) months invoices for the remainder of the Transition Period. However, if
Customer transitions by moving markets (MSCID's) to another HLR/VLR as a part of
a transition plan, then the following adjustments will be made:
(a) If Customer terminates the Agreement in
accordance with this paragraph 10.6, then Customer will pay
the full amounts agreed to per the Agreement throughout the
transition period, except that during the last three (3)
months of the Transition Period, Customer will pay based on a
proportionate schedule. [TEXT HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS
BEEN FILED SEPARATELY WITH THE SEC.]
(b) If Provider terminates the Agreement in accordance with
this paragraph 10.6, then Customer will pay the full amounts
agreed to per the Agreement throughout the Transition Period,
except that at the point during the Transition Period that
Customer begins to transition transactions away from Provider,
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.] In no case will Provider be required to provide
services more than four (4) months after a proportionate
reduction in charges takes effect.
10.7 License to use Provider Interfaces. Upon the termination or
expiration of this Agreement, Customer shall have a perpetual, non-exclusive and
royalty-free right and license to use the most recent version of the Provider
Interfaces existing at the termination or expiration of the Agreement, solely in
connection with the operation of the
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HighwayMaster System or a substantial portion thereof, including the right to
distribute the Provider Interfaces to third parties who are engaged to provide
services similar to the Services furnished by Provider or the services provided
to Customer by the NSC. Customer agrees that Provider shall retain its ownership
rights and interests in the Provider Interfaces, including any modifications,
adaptations, translations and derivative works based thereon (whether created by
Provider, Customer or any third party), and that Customer is merely granted a
license to use the Provider Interfaces as set forth herein. Customer's right to
distribute the Provider Interfaces (including portions thereof) to any third
party is subject to the requirement that each third party recipient shall agree
in writing to maintain the confidential nature of the Provider Interfaces and
limit its use of the Provider Interfaces to be solely in connection with the
HighwayMaster System or a substantial portion thereof. PROVIDER DOES NOT MAKE
AND NEITHER CUSTOMER NOR ANY THIRD PARTY RECEIVES ANY REPRESENTATION OR WARRANTY
WITH RESPECT TO THE OWNERSHIP, FUNCTIONALITY OR PERFORMANCE OF THE PROVIDER
INTERFACES, IT BEING EXPRESSLY AGREED THAT THE PROVIDER INTERFACES ARE PROVIDED
`AS IS' WITHOUT WARRANTY OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Customer
shall inform any third party that is provided the Provider Interfaces of the
above disclaimer of warranty and shall include such disclaimer in any agreement
with such third party. Provider shall cause one copy of the Provider Interfaces
to be delivered to Customer within thirty (30) days following the termination or
expiration of this Agreement under circumstances that entitle Customer to the
license of the Provider Interfaces set forth above; provided, however, that
Customer shall reimburse Provider for all costs and expenses (including
reasonable charges for overhead) incurred in connection with the delivery of the
Provider Interfaces. Nothing in this Section 10.7 shall require Provider to
license or deliver any other Provider Information or Software, including the
manner in which the Provider Interface operates in connection with the Host
System.
11. MISCELLANEOUS PROVISIONS.
11.1 Force Majeure. Each Party hereto shall be excused from performance
hereunder for any period and to the extent that it is prevented from performing
any action pursuant hereto, in whole or in part, as a result of delays beyond
its control caused by the other Party or by an act of God or the public enemy,
fire, floods, epidemics, quarantine restrictions, civil disturbance, court
order, labor dispute, third party nonperformance (except to the extent such
third party nonperformance is wrongfully caused by a Party to this Agreement),
or other cause beyond its control, including without limitation failures or
fluctuations in electrical power, heat, light or air conditioning. Additionally,
Provider shall not be liable to Customer or Clients if changes, alterations or
modifications in the HighwayMaster System, Customer's facilities, operations,
network equipment, or procedures made in the ordinary course of business render
the Services obsolete or unusable.
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11.2 Severability. Any provision of this Agreement which is prohibited,
unenforceable or is declared or found to be illegal, unenforceable or void, in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
11.3 Nondisclosure/Media Releases. All media releases, public
announcements and public disclosures by any Party hereto relating to this
Agreement or its subject matter, including without limitation promotional or
marketing material, but not including any announcement intended solely for
internal distribution or any disclosure required by legal, accounting or
regulatory requirements beyond the reasonable control of such Party, shall be
coordinated with and approved by the other Party hereto prior to the release
thereof, which approval shall not be unreasonably withheld or delayed. The terms
of this Agreement are confidential except that either Party may disclose the
terms of this Agreement to any of its, or its Affiliates, employees, consultants
or professionals on a "need to know basis" to permit performance hereunder.
Neither Party shall announce or disclose to any third party, the terms and
conditions contained herein or any discussions relating thereto, without the
prior written consent of the other Party, except as required by law, in which
case the Party required to make disclosure shall give the other Party prompt
notice of any such requirement so that the other Party can take any actions it
deems appropriate to protect the information from disclosure. Notwithstanding
the above, Customer shall be permitted to disclose this Agreement to the
Securities and Exchange Commission ("SEC") and file it therewith, as required in
connection with a 10Q, 10K, 8K or other SEC required reporting document and
Provider shall be permitted to disclose this Agreement to potential successors
in interest of Provider, provided such potential successors in interest agree in
writing not to further disclose such information. Customer shall provide the SEC
with a clean and redacted copy of the Agreement to indicate to the SEC which
Sections should be redacted and unavailable for public review. A copy of the
Agreement with the proposed redactions will be provided to Provider twenty (20)
business days prior to filing the Agreement with the SEC, and Provider shall
have such twenty (20) business days to request additional or different
redactions. In the event no such comments are provided to Customer by Provider
in such time period, Customer shall be authorized to file this Agreement with
the SEC in the form given to Provider for review. To the extent the SEC or
Customer determines that any requested redactions are not allowed by the SEC,
Customer must notify Provider of the specific changes required by the SEC prior
to filing this Agreement with the SEC.
11.4 Injunctive Relief. Each Party acknowledges that any Material
Default of its obligations under this Agreement may cause irreparable harm to
the other Party for which remedies at law will be inadequate and that, in the
event of any such Material Default, the nonbreaching Party shall be entitled to
equitable relief (including without limitation injunctive relief and specific
performance).
11.5 Notices. Any notice required by this Agreement must be given by
depositing a copy of such notice (i) in the United States mail, postage prepaid,
certified
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return receipt requested or (ii) in overnight delivery or (ii) via facsimile.
Any such notice will be deemed to be received upon the earlier of verification
of delivery or the fifth (5th) day after depositing a copy of such notice in the
mail or overnight delivery, except that notices received by facsimile shall only
be deemed effective upon actual receipt by the individual with the title set
forth below as confirmed solely by such individual. Any such notice will be
given at the following addresses or to such later addresses of which the sending
Party has received actual or constructive notice:
If to Customer: HighwayMaster Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Cc: General Counsel
FAX No.: ▇▇▇-▇▇▇-▇▇▇▇
If to Provider: GTE Telecommunication Services Incorporated
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President
Cc: Vice President & General Counsel
FAX No.: ▇▇▇ ▇▇▇-▇▇▇▇
11.6 Legal Representation. Customer acknowledges that Provider has
offered no legal advice or counsel to Customer nor made any representations to
Customer regarding Customer's exemption from the jurisdiction of federal, state,
or local govern-mental agencies with potential jurisdiction over the Parties
herein and the Services to be rendered hereunder and Provider has not offered
Customer any legal advice or counsel regarding the subject matter of this
Agreement. Provider acknowledges that Customer has offered no legal advice or
counsel to Provider nor made any representations to Provider regarding
Provider's exemption from the jurisdiction of federal, state, or local
governmental agencies with potential jurisdiction over the Parties herein and
the Services and obligations to be rendered hereunder and Customer has not
offered Provider any legal advice or counsel regarding the subject matter of
this Agreement.
11.7 Interpretation. Headings used in this Agreement are for
convenience only and will not be deemed to be operative text. Terms of gender
will be deemed inter-changeable, as will singular and plural terms, in each case
unless the context otherwise requires.
11.8 Execution. This Agreement shall be deemed to be executed at such
time as all Parties hereto have signed a counterpart hereof and each Party
hereto has received from each of the other Parties hereto an originally-signed
counterpart or a facsimile transmission or other replication of an
originally-signed counterpart.
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11.9 Waiver. The failure of either Party to enforce, in any one or more
instances, performance of any of the terms, covenants or conditions of this
Agreement shall not be construed as a waiver or a relinquishment of any right or
claim granted or arising hereunder or of the future performance of any such
term, covenant, or condition, and such failure shall in no way affect the
validity of this Agreement or the rights and obligations of the Parties hereto.
The Parties acknowledge that a waiver of any term or provision hereof may only
be given by a written instrument executed by each Party intended to be benefited
by the same.
11.10 WARRANTY DISCLAIMER. PROVIDER'S AND CUSTOMER'S OBLIGATIONS
HEREUNDER ARE IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED. PROVIDER MAKES NO
WARRANTIES, EXPRESS OR IMPLIED REGARDING THE GOODS, SERVICES OR EQUIPMENT TO BE
PROVIDED HEREIN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
11.11 NO LIABILITY FOR INDIRECT DAMAGES. PROVIDER SHALL NOT BE LIABLE
TO CUSTOMER, CLIENTS OR ANY THIRD PARTY, AND CUSTOMER SHALL NOT BE LIABLE TO
PROVIDER, OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE,
OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS,
REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, INDEMNITY, WARRANTY,
STRICT LIABILITY OR TORT ARISING FROM OR RELATED TO THE PERFORMANCE OF THE
DUTIES OR OBLIGATIONS OF PROVIDER OR CUSTOMER IN ACCORDANCE WITH THE TERMS SET
FORTH HEREIN OR THE RENDERING OF SERVICES HEREUNDER.
11.12 LIMITATION OF LIABILITY. THE LIABILITY OF EITHER PARTY FOR ANY
CLAIM ASSERTED BY THE OTHER PARTY OR ANY THIRD PARTY ARISING OUT OF THIS
AGREEMENT SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL AMOUNTS PAID BY
CUSTOMER TO PROVIDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE
EVENT GIVING RISE TO THE CLAIM.
11.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument notwithstanding that all
Parties are not signatories to each counterpart.
11.14 Assignability and Binding Effect. This Agreement shall inure to
the benefit of and be binding upon the Parties hereto and their respective
successors and permitted assigns. Customer may not assign this Agreement without
the prior written consent of Provider, such prior written consent will not be
unreasonably withheld if the proposed assignment is to an Affiliate of Customer.
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11.15 Amendments. This Agreement may not be modified, amended or
supplemented except by an agreement in writing signed by all of the Parties
hereto. Provider shall not accept nor act upon any instructions, directions,
and/or modifications concerning Provider's performance hereunder which would
affect the terms, conditions, and/or pricing of this Agreement unless authorized
by Customer's representative.
11.16 Expenses, Taxes, Etc. Each of the Parties hereto shall pay all
fees and expenses incurred by it in connection with the preparation and
negotiation of this Agreement. There shall be added to any charges incurred and
payable by Customer under this Agreement, an amount equal to any tariff, duty,
or levy tax including but not limited to sales, ad valorem and use tax or any
tax in lieu thereof imposed by any local, state, or federal government or
governmental agency with respect to the Services or with respect to this
Agreement, but in no event will taxes be paid by Customer which are based on the
income or net worth of Provider.
11.17 Third Parties. Except as expressly provided herein, nothing
herein expressed or implied is intended or shall be construed to confer upon or
give to any Person other than the Parties hereto and their successors or
permitted assigns, any rights, benefits or remedies of any kind or character
whatsoever under or by reason of this Agreement.
11.18 Attorneys' Fees. Except as herein expressly provided, in any
arbitration, suit, action or proceeding brought by one Party against the other
Party under this Agreement, or where any provision hereof is validly asserted as
a defense, the prevailing Party shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy, subject to the
limitation of liabilities set forth herein.
11.19 Dispute Resolution Procedures. Except as provided in Section
11.19(d) below, for all disputes relating to this Agreement, prior to
instituting litigation, in any forum, including, but not limited to, state,
federal, or regulatory proceedings, each Party agrees to the following
procedures:
(a) In the event a Party has a dispute with the other Party
relating to this Agreement, the aggrieved Party shall give the other
Party detailed written notice of any acts, occurrences and/or omissions
giving rise to the dispute. The aggrieved Party, in its sole
discretion, may include copies of documents which it believes support
its claim(s).
(b) Within fifteen (15) days after receipt of notice, the
Party receiving the notice shall tender to the other Party a written
response, including an offer of settlement, if it so desires. Any offer
of settlement not accepted or rejected within fifteen (15) days shall
be deemed rejected.
(c) In the event the Parties are unable to settle their
dispute after following the procedures set forth in this Section 11.19,
and fifteen (15) days following the receipt of the response made
pursuant to (b) above (or the lapse of
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the fifteen (15) day period specified therein in the event no response
is made), the Parties shall submit their dispute to mediation.
Compliance with the procedures on dispute resolution and mediation
shall be a condition precedent to initiating any judicial,
quasi-judicial and/or regulatory or legal proceeding. Any lawsuit filed
prior to the exhaustion of the mediation procedures provided for in
this Agreement shall be dismissed, notwithstanding any later exhaustion
of mediation and the subsequent filing of any lawsuit by the other
Party. A Party seeking and obtaining dismissal of a lawsuit pursuant to
this provision shall recover all of its costs and attorneys' fees
incurred in obtaining such dismissal.
(d) Notwithstanding Section 11.19 (a) - (c) above, if either
Party seeks to obtain a temporary restraining order or preliminary
injunction to prevent the imminent disclosure of Customer Information
or Provider Information, as the case may be, or if Customer seeks to
obtain an temporary restraining order or preliminary injunction to
prevent the unjustified suspension of Services by Provider, the dispute
resolution provisions of this Section 11.19 will not apply. However, if
the Party seeking the temporary restraining order or preliminary
injunction is unsuccessful, such Party shall be required to pay all
costs and expenses (including reasonable attorney's fees) of the other
Party within thirty (30) days of the denial of the requested relief. To
the extent either Party seeks any relief not provided for by this
Section 11.19(d), the dispute resolution provisions of Section 11.19
(a) - (c) shall control.
11.20 Rules for Mediation.
(a) Consent to Mediator. Both Parties shall share equally the
cost of mediation. The Mediator shall act as an advocate for resolution
and shall use his or her best efforts to assist the Parties in reaching
a mutually agreeable settlement. The Parties agree to select the
Mediator within three (3) business days following the procedure set
forth in 11.19 above. In the event the Parties are unable to agree on a
Mediator, the matter shall be referred to the American Arbitration
Association for the appointment of a Mediator pursuant to its
Commercial Mediation Rules.
(b) Conditions Precedent to Service as a Mediator. The
Mediator shall not serve as a mediator in any dispute in which he or
she has a financial or personal interest in the result of mediation.
Prior to accepting an appointment, the Mediator shall disclose any
circumstance likely to create presumption of bias or prevent prompt
meeting with the Parties. In the event the Parties disagree as to
whether the Mediator shall serve, the Mediator shall not serve.
(c) Authority of Mediator. The Mediator shall not have the
authority to decide any issue for the Parties, but will attempt to
facilitate voluntary resolution of the dispute by the Parties. The
Mediator is authorized to conduct joint and separate meetings with the
Parties and to offer suggestions to assist the
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Parties achieve settlement. If necessary, the Mediator may also obtain
expert advice concerning technical aspects of the dispute, provided the
Parties agree and assume the expenses of obtaining the advice.
Arrangements for obtaining such advice shall be made by the Mediator or
the Parties, as the Mediator shall determine.
(d) Date, Time and Place of Mediation. The Mediator shall fix
the date and the time of each mediation session.
(e) Identification of Matters in Dispute. At least ten (10)
days prior to the first scheduled mediation session, each Party shall
provide the Mediator with a brief memorandum setting forth its position
with regard to the issues that need to be resolved. At the discretion
of the Mediator, such memoranda may be mutually exchanged by the
Parties. At the first session, the Parties will be expected to produce
all information reasonably required for the Mediator to understand the
issues presented. The Mediator may require any Party to supplement such
information.
(f) Privacy. Mediation sessions are private. The Parties and
their representatives may attend mediation sessions. Other persons may
attend only with the permission of the Parties and with the consent of
the Mediator.
(g) Confidentiality. Confidential information disclosed to a
Mediator by the Parties or by witnesses in the course of the mediation
shall not be divulged by the Mediator. All records, reports or other
documents received by a Mediator while serving in that capacity shall
be confidential. The Mediator shall not be compelled to divulge such
records or to testify in regard to the mediation in any adversary
proceeding or judicial forum.
The Parties shall maintain the confidentiality of the
mediation and shall not rely on or introduce as evidence in any
arbitral, judicial or other proceeding:
(i) views expressed or suggestions made by another Party
with respect to a possible settlement of the dispute;
(ii) admissions made by another Party in the course of the
mediation proceedings;
(iii) proposals made or views expressed by the Mediator; or
(iv) the fact that another Party had or had not indicated
willingness to accept a proposal for settlement made
by the Mediator.
(h) No Stenographic Record. There shall be no stenographic
record of the mediation process.
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(i) Termination of Mediation. The mediation shall be
terminated:
(i) by the execution of a settlement agreement by the
Parties;
(ii) by a written declaration of the Mediator to the
effect that further efforts at mediation are no
longer worthwhile; or
(iii) by a written declaration of a Party or Parties to the
effect that the mediation proceedings are terminated,
but then only after a good faith participation in
mediation consisting of at least eight hours of
mediation. Written certification by the mediator that
a Party has not participated in good faith in the
mediation shall prevent termination of the mediation
proceedings.
Any mediation awards resulting from the invocation of this paragraph
shall be governed by the provisions set forth in Sections 11.11 and
11.12.
(j) Duration. Either Party may require that mediation be
completed within forty five (45) days from the submission of the first
notice set forth in 11.19(a) above. In the event substantial potential
damages continue to accrue pending mediation, the mediator shall have
the authority to amend all of the procedures and time periods as may be
reasonable to expedite the procedure.
11.21 Independent Contractor. Provider is providing the Services as an
independent contractor. This Agreement shall not be construed to create a joint
venture, partnership, employment relationship, franchise or any other legal
relationship between the Parties other than that of independent contractor.
Neither Party shall share or be responsible for the debts and liabilities of the
other Party, or have the authority to bind the other Party in any manner.
11.22 Entire Agreement. This Agreement, together with Exhibits A, B, C,
D, and E attached hereto and expressly made a part of this Agreement, shall
constitute the entire agreement between the Parties hereto with respect to the
Services and shall supersede all prior proposals, negotiations, understandings
and agreements, whether oral or written, including but not limited to the
Services Agreement entered into by Customer and Provider dated March 14, 1995.
The Parties agree that this Agreement supersedes and replaces in its entirety a
document purporting to be an agreement between Customer and Provider entitled
"Fleet-on-Track Services Agreement" and bearing signatures dated December 16,
1998 and January 5, 1998 [sic], such document now being null, void, and of no
effect.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the date first above written.
PROVIDER: CUSTOMER:
GTE Telecommunication HighwayMaster Corporation
Services Incorporated
By: (x) ▇▇▇▇▇ ▇▇▇▇▇ By: (x) ▇▇▇▇ ▇▇▇▇
-------------------------- -----------------------------
Printed name: ▇▇▇▇▇ ▇▇▇▇▇ Printed name: ▇▇▇▇ ▇▇▇▇
Title: President Title: President & CEO
Date: May 2, 1999 Date: April 29, 1999
------------------------ ---------------------------
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EXHIBIT A
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
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EXHIBIT B
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
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OBSERVED HOLIDAYS
New Year's Day
Memorial Day
Independence Day
Labor Day
Thanksgiving Day
Day after Thanksgiving
Christmas Day
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EXHIBIT C
SERVICES CHARGE CALCULATION
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
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EXHIBIT D
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
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EXHIBIT E
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
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