Service Agreement - At Road Inc. and ALLTEL Communications Inc.
Contract No. 58741-100104
ALLTEL WIRELESS DATA PACKET SERVICE AGREEMENT
This Service Agreement is entered into by and between At Road, Inc. a
Delaware Corporation, with a principal place of business located at 47200
Bayside Parkway, Fremont, CA 94538, ("Customer") and ALLTEL Communications Inc.
(ACI) doing business as ALLTEL (hereinafter known as "ALLTEL") with a principal
place of business located at 1 Allied Drive, Little Rock, Arkansas 72202, and
with offices at 11333 N. Scottsdale Road, #200, Scottsdale, Arizona 85254 (the
"Agreement"), for the provision of Wireless Data Packet Services as set forth
herein.
TERMS
1. DEFINITIONS.
As used herein the following terms shall have the following respective
meaning:
1.1 Affiliate. Any person, association, co-partnership, corporation, co-
tenant or joint-stock or trust (hereinafter "person") that directly
or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with another person.
Control shall be defined as (i) ownership of half or a majority of
the voting power or all classes of voting stock or (ii) ownership of
half or a majority of the beneficial interests in income and capital
of an entity other than a corporation.
1.2 Area. The markets listed in Exhibit A within which ALLTEL either is
licensed and authorized by the FCC to provide commercial mobile
service, or manages on behalf of the FCC licensee and in which
ALLTEL currently provides ALLTEL Wireless Data Packet Service.
1.3 Authorized User. Individuals or companies authorized by Customer to
use the System pursuant to the terms and conditions of this
Agreement.
1.4 Cellular Digital Packet Data Service ("CDPD"), Wireless Data Packet
Service, or Service. The cellular radio telecommunications service,
as defined at 47 CFR Part 22, Subpart H, provided by ALLTEL pursuant
to license from the Federal Communications Commission, utilizing
packet switching technology to transmit data over radio frequency
10.31
<PAGE>
channels. The raw data rate of CDPD is approximately 19.2 Kilobits
per second.
1.5 Equipment Identifier (EID). An electronic serial number placed in a
CDPD radio modem.
1.6 Fixed End System (FES). A host computer(s) operated by or on behalf
of Customer.
1.7 Home Area. The Area in Exhibit A where the NEI of the Authorized
User is activated in and authenticated from.
1.8 Internet Protocol Address (IP). The unique numeric character string
used to identify each CDPD modem. This I.P. address is hard coded
into the firmware of the modem, and is used in the CDPD session
registration process.
1.9 Kilobyte. A kilobyte is 1000 octets of data, measured at the IP
packet layer (what is the IP packet layer). IP header and data
octets are included in the kilobyte count.
1.10 Mobile Data Base Station ("MDBS"). The unit located at ALLTEL cell
sites which serves as the data link relay point for the Service. The
MDIS communicates with each MES through the MDBS.
1.11 Mobile End System ("MES"). A data terminal, CDPD radio modem, and
antenna.
1.12 Mobile Data Intermediate Systems ("MDIS"). The component of the
ALLTEL Wireless Data Packet Service network which performs routing
and which contains the network control functions, including the
mobility manager, registration and authentication functions.
1.13 Network Entity Identifier ("NEI"). A network address assigned to the
MES. Each MES has an NEI and a unique corresponding EID for
authentication purposes.
1.14 Packet. The continuous sequence of binary digits of information,
which is routed through the ALLTEL Wireless Data Packet Service
network as an integral unit. Packet sizes can be flexible within a
range of "0" user bytes to a maximum of "2048" bytes.
1.15 Roaming. Service, provided to Customer by ALLTEL in Areas outside
the Home Area, which may be provided by ALLTEL or may be provided
pursuant to, and based on the terms and conditions (including
costs), between ALLTEL and another Service provider. ALLTEL may from
time to time during the term of this Agreement modify or change the
Areas for which it provides Roaming to the Customer.
1.16 Service. The ALLTEL Wireless Data Packet Service, including any
Roaming made available by ALLTEL, provided pursuant to this
Agreement.
2
<PAGE>
1.17 System. The Cellular Digital Packet Data, (CDPD) network as it is
defined in the geographic Areas of Exhibit A.
2. PROVISION OF SERVICE.
Subject to the terms and conditions of this Agreement, ALLTEL agrees to
sell and Customer agrees to purchase the Service from ALLTEL within the Areas
identified in Exhibit A. Customer is not contracting for resale of switched
services and nothing contained herein shall be construed as entitling Customer
to or requiring ALLTEL to provide Customer with access to ALLTEL's System, or
any of ALLTEL's facilities or equipment. During the term of this Agreement and
thereafter, ALLTEL reserves the right without obligation or liability to
Customer, to compete with Customer by selling Services in the Areas, or any
other area, to others, including Authorized Users, whether through ALLTEL's own
direct sales organization or through other related or unrelated agents,
customers or representatives.
3. PRICING.
The rate for the Service provided by ALLTEL is set forth in Exhibit B. The
availability of such rate is restricted to the applications set forth in Exhibit
B.
4. INSTALLATION.
At Customer's request, and based upon ALLTEL's sole discretion, ALLTEL
will provide and/or arrange for installation services of MES equipment in an
Area. The rate for such installation services will be negotiated on a case by
case basis, will be paid in advance of the performance of any installation
provided by ALLTEL, and will be included in a separate attachment to this
Agreement.
5. COMMITMENT OF CUSTOMER
Customer shall, unless otherwise agreed upon in writing and in advance, at
its sole expense:
5.1 purchase and maintain any equipment that Customer and/or its
Authorized Users may require to communicate with the System; and
5.2 establish and maintain facilities or services for connecting
Customer's and/or its Authorized Users' networks or host processors
to the System (such as private line connections and/or frame relay
service); and
5.3 maintain at its sole expense and option, all MES's and ensure that
each is technically and operationally compatible with the Service
3
<PAGE>
network and is in compliance with applicable state and federal laws,
rules, and regulations; and
5.4 procure any other items or services, including, but not limited to,
any applications software or professional services that may be
required by Customer and/or its Authorized Users in connection with
the Service and/or this Agreement; and
5.5 submit a completed copy of the form entitled, "ALLTEL Wireless Data
Packet Service Request Form", attached hereto as Exhibit C, for
modification, addition or deletion of NEls/ElDs during the term of
this Agreement; and
5.6 pay and hereby guarantee the payment of all invoices presented by
ALLTEL under the terms of this Agreement.
5.7 Customer will provide ALLTEL with a valid federal tax exemption
certificate of resale and a valid state tax exemption certificate of
resale, if required. ALLTEL will not calculate any local, state or
federal tax nor include such amounts in billing. Customer will be
solely responsible for any and all tax obligations on its business
operation and Authorized Users, including without limitation all
surcharges, levies, state or federal universal service charges, and
any other local, state or federal revenue collection obligation.
5.8 In addition to the charges set forth in this Agreement, ALLTEL may,
if customer's performance dictates the need, at its sole discretion,
require Customer to pay a cash deposit or to provide a letter of
credit acceptable to ALLTEL in an amount to be determined by ALLTEL
to be held by ALLTEL as a guarantee of the payment of charges set
forth in this Agreement. At such time as this Agreement has expired
or is terminated, if Customer has performed fully all terms and
conditions of this Agreement, the amount of deposit, including
accrued interest in the amount of 6 percent (6%) per annum, on cash
deposit only, will be credited to Customer's final invoice and any
credit balance which remains will be refunded. Deposits may also be
returned at any time previous thereto at the sole discretion of
ALLTEL. If Customer supplies ALLTEL a letter of credit in place of a
cash deposit, the letter of credit must cover the tern of this
Agreement plus 90 days.
5.9 The amount of deposit which Customer will be required to pay upon
execution of this Agreement shall be $ 0 (zero). At its sole
discretion, ALLTEL may require the amount of the deposit to be
increased to two times the amount of the most recently billed
monthly invoice. At no time will the deposit be less than $ 0
(zero). The amount of a deposit may be adjusted further by ALLTEL
based upon Customer's credit worthiness or at any time ALLTEL finds
the character or degree of use
4
<PAGE>
of the Service materially changes or when it is apparent that the
character or degree of use of the Service will materially change in
the immediate future. Required increases in deposits shall be
remitted by wire transfer or new letter of credit within fifteen
(15) days of receipt of notice.
5.10 The deposit may be applied by ALLTEL to any unpaid balances past
thirty (30) days or to any unpaid balances on termination or
default. This right of offset is in addition to all other rights or
remedies available to ALLTEL. In the event of such an offset,
Customer shall restore the deposit to an amount acceptable to ALLTEL
within fifteen (15) business days after notice from ALLTEL.
5.11 If any dispute arises concerning any collection of charges or any
offset, Customer must give ALLTEL written notice of the nature and
amounts of the dispute within sixty (60) days of the date of receipt
of invoice reflecting the alleged improper collection or offset. If
no such notice is received by ALLTEL within such time period, the
collection or offset made shall be considered final and Customer may
not thereafter dispute the nature or amount of the collection or
offset.
5.12 Customer shall provide an adequate staff to receive and investigate
any complaints from its Authorized Users relating to the Service,
and will report any trouble with the Service to ALLTEL only upon
reasonable verification that such trouble is due to reasons other
than the misuse or malfunctioning of the Authorized User's equipment
or the failure of such equipment to meet the technical standards for
compatibility with the Service. Customer shall reimburse ALLTEL for
all reasonable costs and expenses associated with any investigation
by ALLTEL of complaints reported by Customer pursuant to this
paragraph. Customer shall not be responsible for reimbursement if
ALLTEL'S investigation reveals that ALLTEL's actions or systems were
a substantial contributing cause of such complaint.
5.13 Customer will provide an adequate staff to market the Service and to
train and support its Authorized Users with respect to the Service.
5.14 Customer shall, prior to the commencement of marketing of Service,
provide its form of Authorized User contract, if any, to ALLTEL for
ALLTEL's review. ALLTEL's review shall be limited to ascertaining
whether the proprietary and legal interests of ALLTEL are adequately
protected in such contract, that the terms do not contradict the
terms of this Agreement, as well as determining if written
disclosure of Authorized User's duties, obligations, rights and
liabilities under this Agreement and mandatory language such as that
provided below have been included. ALLTEL shall have no liability as
a result of its review of the Authorized User contract. Customer may
delete confidential information not relating to ALLTEL's interests
from such contract
5
<PAGE>
prior to submitting it for review. Customer represents and warrants
that it will make no representations as to the performance of ALLTEL
in providing Service to its Authorized Users. Customer represents
and warrants that any and all of its contracts with Authorized Users
will contain language substantially similar in all material respects
to the three paragraphs set forth below:
5.14.1 Authorized User has no property right in the IP Address.
5.14.2 Authorized User expressly understands and agrees that the
liability and obligations of Customer to Authorized User
under this Agreement for Service are strictly controlled and
limited by the underlying carrier's tariff, if any, and the
laws, rules and regulations of the Federal Communications
Commission and other governmental authorities which may from
time to time have jurisdiction. In any event, regardless of
the form of the action, whether for breach of contract,
warranty, negligence, strict liability in tort or otherwise,
Authorized User's exclusive remedy and the total liability
of Customer and/or any supplier of Service to Customer
arising out of or in any way connected, directly or
indirectly, with this Agreement, for any cause whatsoever,
including but not limited to any failure or disruption of
Service provided hereunder, shall be limited to payment by
Customer of damages limited to an amount equivalent to a pro
rata adjustment of the fixed monthly charges for Service,
payable by Authorized User under this Agreement for this
period during which such damages occur. In no event shall
Customer and/or supplier of Service to Customer be liable
for any special or consequential damages. No action
regardless of form arising out of the transactions hereunder
may be brought by Authorized User more than one year after
the cause of action has accrued.
5.14.3 Unless caused by the negligence of Customer, Authorized User
shall indemnify and hold Customer, ALLTEL, their officers,
employees, suppliers of service, and agents harmless against
any and all claims, demands, suits, judgments, causes of
action, losses, expenses, fees (including attorneys' fees),
liability or damages for libel, slander or infringement of
copyright from the material transmitted via the Service, and
against any and all other claims, demands, suits, judgments,
causes of action, losses, expenses, fees (including
attorney's), liability or damages, including without
limitation for any personal injury or death, arising in any
way directly or indirectly in connection with this Agreement
of the use of or inability to use the Service. This
indemnity shall survive the termination of this Agreement.
6
<PAGE>
6. AVAILABILITY OF THE SERVICE.
The Service is available for Customer and/or its Authorized Users who are
equipped for the Service when they are within the range of cell sites in the
Area that provide the Service, or in an Area or area in which ALLTEL makes
Roaming available to its customers, as ALLTEL may modify from time to time
throughout the term of this Agreement.
6.1 The Customer acknowledges and agrees that the Service is subject to
transmission limitations caused by atmospheric and other conditions
beyond ALLTEL's control. The Service may be temporarily interrupted
or curtailed due to reasons including without limitation government
regulations, suspected fraudulent activities, equipment
modifications, upgrades, relocations, acts or omissions of other
parties, repairs and similar activities necessary or appropriate for
the proper or improved operation of the Service.
6.2 The Customer acknowledges and agrees that the Service, although
encrypted, is capable of being intercepted without knowledge of or
permission from Customer or any Authorized User by unauthorized
third parties possessing certain types of devices or equipment.
6.3 Commitment of ALLTEL
ALLTEL shall report all network outages to Customer via e-mail if
the ALLTEL system fails to function for any reason within Four (4)
hours of ALLTEL Data Customer Services receiving notice of the
outage. ALLTEL shall make all reasonable efforts to repair network
outages and shall notify Customer via e-mail within Four (4) hours
of restoration of services. Refer to Section 12 herein for
information regarding Customer credit for outages.
7. COMPLIANCE WITH LAWS AND TARIFFS.
This Agreement and performance hereunder are subject to any required
local, state and federal laws or regulations, including any applicable tariffs
filed by ALLTEL. Where required, ALLTEL shall commence the process for
submission of any such filings upon execution of this Agreement.
8. BILLING.
ALLTEL will provide Customer with a monthly invoice for the Service
provided under this Agreement. Electronic billing will be used if possible.
7
<PAGE>
8.1 The invoice will identify charges in accordance with Exhibit B.
Terms of payment shall be net thirty (30) days from the date of the
invoice.
8.2 Payments received more than thirty (30) days after the date of the
invoice will incur a late payment charge in the amount of the
greater of one and one-half percent (1 1/2%) of the unpaid balance
or the applicable limit (if any) set by law for each month or
fraction thereof that such balance shall remain unpaid.
8.3 The invoice will individually identify each billable ALLTEL Wireless
Data CDPD IP assigned to Customer. Each IP will show total monthly
data usage defined by "home" and "roaming" data totals and
subsequent charges as defined in Exhibit "B".
8.4 Customer will incur, and be responsible for payment of, Roaming
charges whenever CDPD service registration is granted to IP's
provided by ALLTEL to Customer in any Area outside the IP's Home
Area.
8.5 The Home Area is identifiable to the CDPD modem through ALLTEL's
SPNI identification number.
9. FRAUD AND ABUSE.
9.1 Fraud. Any attempt to abuse or to use Service fraudulently or
illegally by Customer shall be deemed a material breach of the
Agreement. ALLTEL may, by written notice to Customer, require
Customer to cancel the right to use Services by any Authorized User
abusing or fraudulently or illegally using Services, and failure of
Customer to immediately cancel such Authorized User's rights upon
receipt of said notice shall be deemed a material breach of this
Agreement. Notwithstanding any provisions herein to the contrary,
such material breach shall immediately entitle ALLTEL to any and all
remedies that may exist hereunder and at law or equity.
9.2 Action to abuse. In the event that any Authorized User interferes
with the System in such a way as to impair the quality of the
Service provided by ALLTEL, upon discovery of any such abuse, the
party having such knowledge shall notify the other party, and
Customer shall immediately order Authorized User to cease from
engaging in such act(s) of interference. ALLTEL shall have the right
to discontinue Service provided to that Authorized User immediately.
Customer shall assist ALLTEL in taking all action reasonably
necessary to prevent further interference.
10. LIMITATION OF LIABILITY.
8
<PAGE>
10.1 IN NO EVENT SHALL ALLTEL BE LIABLE TO CUSTOMER, ITS AUTHORIZED
USERS, OR ITS EMPLOYEES AND/OR AGENTS OR ANY OF THEM, OR ANY THIRD
PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,
PUNITIVE DAMAGES, OR LOST PROFITS FOR ANY CLAIM OR DEMAND OF ANY
NATURE OR KIND, INCLUDING, BUT NOT LIMITED TO, USE OR INABILITY TO
USE/ACCESS THE SERVICE, INCLUDING, BUT NOT LIMITED TO, RELIANCE BY
CUSTOMER AND/OR AN AUTHORIZED USER ON ANY DATA OBTAINED THROUGH USE
OF THE SERVICE, ANY INTERRUPTION, DEFECT, ERROR, VIRUS OR DELAY IN
OPERATION OR TRANSMISSION, ANY FAILURE TO TRANSMIT OR ANY LOSS OF
DATA, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE
PERFORMANCE OR BREACH THEREOF.
11. DISCLAIMER OR WARRANTIES
11.1 DUE TO THE POSSIBILITY OF ERRORS INCIDENT IN THE USE OF THE SERVICE,
THE SERVICE FURNISHED BY ALLTEL IS SUBJECT TO THE TERMS, CONDITIONS
AND LIMITATIONS SPECIFIED HEREIN. ALLTEL MAKES NO WARRANTY, EITHER
EXPRESS OR IMPLIED, CONCERNING THE SERVICE, INCLUDING WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR
PURPOSE OR USE.
11.2 CUSTOMER ACKNOWLEDGES IT HAS SELECTED CUSTOMER'S SOFTWARE AND/OR
EQUIPMENT (INCLUDING EQUIPMENT THAT MAY BE PURCHASED BY CUSTOMER
THROUGH ALLTEL). ALLTEL HAS MADE AND MAKES NO REPRESENTATIONS OR
WARRANTIES WHATSOEVER, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED,
AS TO THE SUITABILITY, DURABILITY, FITNESS FOR PARTICULAR PURPOSE OR
USE, MERCHANTABILITY, CONDITION OR QUALITY OF THE CUSTOMER SELECTED
EQUIPMENT AND/OR SOFTWARE. ALLTEL SHALL NOT BE LIABLE TO CUSTOMER
AND/OR ANY AUTHORIZED USER FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY
KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY THE CUSTOMER
SELECTED EQUIPMENT AND/OR SOFTWARE, OR BY THE USE OR MANUFACTURE
THEREOF, OR BY ANY REPAIR, SERVICE OR ADJUSTMENT THERETO OR BY ANY
INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF, OR FOR ANY
9
<PAGE>
LOSS OF BUSINESS OR DAMAGE WHATSOEVER AND HOWSOEVER CAUSED.
12. CREDIT FOR OUTAGES
Except as provided in Section 18, no credit or adjustment will be made for
interruptions of the Service unless the interruption continues for a period of
twenty-four (24) hours or more, measured from the time the interruption
commences. In the event of an interruption of the Service that continues for a
period of twenty-four (24) hours or more, credit allowance will be made, at
Customer's request, for a pro-rata amount not to exceed the minimum charge per
NEI for that month for each NEI rendered inoperative by the interruption. The
credit shall be available only where the interruption is in no part due to the
acts or omissions of Customer or an Authorized User whether negligent or
otherwise or by interruptions caused by failure of equipment or service not
provided by ALLTEL. The foregoing credit shall be the sole and exclusive remedy
to Customer and/or Authorized User for any interruption of the Service. In order
to be eligible for any such credit, Customer must request the credit within
sixty (60) days of the commencement of the interruption.
13. USE OF THE SERVICE.
13.1 The Service furnished hereunder is for use only by Customer or its
Authorized Users.
13.2 Customer will be liable for all usage and administrative charges and
any other losses, damages, charges or expenses arising from or out
of the fraudulent use of Service, including unauthorized use
resulting from or attributable to Customer and/or its Authorized
Users. The parties will actively cooperate in order to minimize the
fraudulent or other unauthorized use and subsequent abuse of the
Service provided by ALLTEL.
14. USE OF MARKS.
14.1 Customer shall not, directly or indirectly, hold itself out as or
otherwise create the impression that it is sponsored, authorized,
endorsed by, affiliated with, or an agent of ALLTEL or an affiliate
thereof. Additionally, Customer shall not use any mark used by
ALLTEL, or any colorable imitation thereof, in or as part of any
company name or trade name or in any other confusing or misleading
manner, without the prior written consent of ALLTEL. Nothing
contained in this Agreement is intended to convey a license to use
any such trademarks, service marks or trade names.
14.2 Customer is granted permission to mention this Agreement in its
filings with any governmental entities.
10
<PAGE>
15. INDEMNIFICATION.
15.1 Customer hereby agrees to defend, indemnify, and hold harmless
ALLTEL and its parents, affiliates, and subsidiaries, and each of
them, including without limitation each of their directors,
officers, shareholders, employees, agents, and contractors, from and
against any third-party or other liabilities, losses, demands,
suits, judgments, causes of action, claims, costs, and expenses,
including reasonable attorneys' fees (hereinafter collectively
referred to as "Claims") arising out of, or in any way connected,
with this Agreement, or the provision of, or the failure to provide,
Service, including without limitation for any breach of this
Agreement, including the breach of any warranty or representation
made by the Customer under this Agreement, from personal injury,
property damage, patent or copyright infringement caused by or
related to equipment sold by Customer which has not been provided or
purchased from ALLTEL, or otherwise arising from or related to the
negligence or acts or omissions of Customer or its parents,
employees, agents, affiliates and subsidiaries, or any Claims by any
Authorized Users for lack of privacy. ALLTEL will notify Customer
promptly in writing of any Claims for which indemnification pursuant
to this paragraph is sought. ALLTEL and Customer will cooperate in
every reasonable manner in the defense of such Claims. Customer
shall defend ALLTEL at ALLTEL's request, against any Claims.
Customer shall have the right to control the defense and settlement
of claims. The foregoing indemnification shall apply regardless of
whether Customer or ALLTEL defends such suit or claims.
16. TERM OF AGREEMENT.
16.1 This Agreement shall be effective when executed by both an
authorized representative of ALLTEL and an authorized representative
of Customer ("Effective Date"). The term of this Agreement shall be
two (2) years from the Effective Date. The term for each IP address
shall be for two (2) years, and shall be automatically renewed
unless terminated prior to the end of the then current term upon
thirty (30) days written notice. All IP's activated by Customer
shall be freely transferable, without additional restrictions
imposed by ALLTEL, to a new device ID.
17. TERMINATION OF THE SERVICE.
17.1 Upon termination, as set forth in Section 18 below, for any reason,
ALLTEL may immediately, without incurring any liability, discontinue
or interrupt the furnishing of the Service to Customer.
17.2 Should any MES or IP address used with the Service violate any of
the provisions of this Agreement, ALLTEL may, without incurring any
liability, take such action as it may, in its sole discretion,
determine is necessary or appropriate for the provision of the
Service, including termination of Service to the MES or IP address.
Customer shall effect the discontinuance of any use of any MES that
is in violation of
11
<PAGE>
this Agreement immediately upon notice to it by ALLTEL, and shall
confirm in writing to ALLTEL within five (5) business days that such
use has been discontinued. ALLTEL may, in sole discretion, choose to
restore service to the MES in question.
18. TERMINATION OF AGREEMENT.
18.1 Upon Default by either Party under this Agreement, of which the
other Party has been given written notice, and which the defaulting
Party has not cured within thirty (30) days of such written notice
the nondefaulting Party may, without incurring any liability,
immediately terminate this Agreement.
18.2 For purposes of this Section 18, "Default" shall be defined as:
18.2.1 Failure by Customer to pay any charge when due or the
failure of either Party to perform or observe any term or
condition of this Agreement; or
18.2.2 Commencement by a Party of any proceeding in bankruptcy,
reorganization, or insolvency; institution against the other
Party of any proceeding in bankruptcy, reorganization, or
insolvency that is acquiesced to or not dismissed within
thirty (30) days; appointment of a receiver for any
substantial part of the Party's assets; the making of an
assignment for the benefit of creditors or an admission in
writing of the Party of its inability to pay its debts as
they mature.
19. PROPRIETARY INFORMATION; CONFIDENTIALITY
19.1 Customer may transmit to ALLTEL and ALLTEL may receive from
Customer, certain Customer Confidential Proprietary Information
relating to but not limited to Customer's Service Accounts,
marketing techniques, or business. ALLTEL may transmit to Customer,
and Customer may receive from ALLTEL certain ALLTEL Confidential
Proprietary Information including but not limited to ALLTEL Service,
Facilities, equipment, business, or rates. Confidential Proprietary
Information means any information and documentation marked or
labeled as "Confidential", together with other information and
documentation intended by the disclosing party to be confidential,
including, without limitation, revenue reports, names of Authorized
Users, billing and usage information, and the terms and conditions
of this Agreement.
19.2 The receiving party shall maintain the confidentiality of the
disclosing party's Confidential Proprietary Information furnished in
oral, visual,
12
<PAGE>
written and/or other tangible form and shall not disclose such
information to any third party, except as authorized by the
disclosing party in writing.
19.3 The receiving party agrees to restrict disclosure of the disclosing
party's Confidential Proprietary Information to its employees or
consultants who have a "need to know". The receiving party agrees
that such Confidential Proprietary Information shall be handled with
the same degree of care which the receiving party applies to its own
similar confidential information (but in no event less than
reasonable care).
19.4 The receiving party agrees to take precautions necessary and
appropriate to guard the confidentiality of the disclosing party's
Confidential Proprietary Information including informing its
employees, agents, attorneys, and representatives who handle such
information that it is confidential and not to be disclosed to any
third party, except as authorized by the disclosing party in
writing.
19.5 The receiving party agrees that the disclosing party's Confidential
Proprietary Information is and shall at all times remain the
property of the disclosing party, except in the event of uncured
default by Customer, ALLTEL reserves the right to access Customer's
Authorized User information solely to provide continuity of Service
to the End User. No use of such Information is permitted except as
otherwise provided herein and no grant under any of the disclosing
party's intellectual property rights is hereby given or intended
including any license implied or otherwise.
19.6 The receiving party agrees to use the disclosing party's
Confidential Proprietary Information only for purposes of fulfilling
its obligations under this Agreement.
19.7 The parties agree to exclude from the provisions of this Agreement
and the obligations of confidentiality: Confidential Proprietary
Information which the receiving party already had in its possession
without confidential limitation at the time of disclosure by the
disclosing party; information which is independently developed by
the receiving party without breach of this Agreement; information
known or that becomes known to the general public without breach of
the Agreement by the receiving party; and information that is
received rightfully without confidential limitation by the receiving
party from a third party and information that is disclosed pursuant
to lawful process or applicable regulatory authority.
19.8 Upon termination of this Agreement, all Confidential Proprietary
Information transmitted to the receiving party by the disclosing
party in record bearing media or other tangible form, and any copies
thereof made by the receiving party shall be destroyed and
destruction verified in writing by an officer of the receiving party
or, at the disclosing party's written request, returned to the
disclosing party, except that the receiving party shall be
13
<PAGE>
entitled to retain a secure copy of the disclosing party's
Confidential Proprietary Information for archival purposes. The
receiving party's obligations under this Agreement to keep
confidential and restrict use of the disclosing party's Confidential
Proprietary Information shall survive such completion or termination
of the Agreement for a period of three (3) years, provided, however,
that such obligation shall continue indefinitely as to any
Confidential Proprietary Information constituting a trade secret.
19.9 Notwithstanding the foregoing, the parties hereto agree to adhere to
Section 222 of the Communications Act of 1934 as amended and Section
64.2001-64.2009, as such may from time to time be amended, of the
Rules and Regulations of the Federal Communications Commission
regarding access to, and distribution of, Customer Proprietary
Network Information and other confidential subscriber information.
20. MISCELLANEOUS.
20.1 Entire Agreement; Amendment. This Agreement and the attached
Exhibits constitute the entire agreement between the parties with
respect to the provision of the Service and associated services and
supersede all prior agreements, proposals, and understandings,
whether written or oral. Any modification or waiver of any provision
of this Agreement must be in writing and signed by authorized
representatives of the parties.
20.2 Severability. If any provision, or portion thereof, of this
Agreement is invalid or unenforceable under applicable statute or
rule of law, it is only to that extent to be deemed omitted, and
such unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall then be construed as if such
unenforceable provision or provisions had never been contained
herein.
20.3 Independent Contractor. No party nor its employees or agents shall
be deemed to be employees or agents of the other party, it being
understood that each party is an independent contractor for all
purposes and at all times, and each party shall be wholly
responsible for withholding and payment of all federal, state, and
local income and other payroll taxes with respect to its employees,
including contribution from them as required by law.
20.4 Waiver. The failure by Customer or ALLTEL at any time to enforce any
of the provisions of this Agreement or any right with respect
thereto, will in no way be construed to be a waiver of such
provisions or rights or in any way to affect the validity of this
Agreement. The exercise by a party of any rights under the terms or
provisions of this Agreement shall not preclude or prejudice the
exercising thereafter of the same or any other right.
14
<PAGE>
20.5 Governing Law. Subject to any tariffs on file with any state or
federal regulatory body, this Agreement shall be governed by the law
of the State of Arizona regardless of any conflicts of laws or
rules, which would require the application of the laws of another
jurisdiction.
20.6 Notices. Any notice to be given hereunder by either party to the
other shall be in writing and shall be valid and sufficient if
dispatched by: a) registered or certified mail, postage prepaid in
any post office in the United States; b) hand delivery; or c)
overnight courier prepaid.
Notices to ALLTEL shall be addressed to:
Attention: Mark Fletcher
Alltel Communications
11333 N. Scottsdale Road, #200
Scottsdale, Arizona 85254
with a copy to: Contracts Manager
Alltel Communications
11333 N. Scottsdale Road, #200
Scottsdale, Arizona 85254
Notices to Customer shall be addressed to:
At Road, Inc.
47200 Bayside Parkway
Freemont, CA. 94538
With a copy to: Legal Department
At Road, Inc.
47200 Bayside Parkway
Fremont, CA 94538
If either party changes its address during the term hereof, it shall
so advise the other party in writing and any notice thereafter
required to be given shall be sent by certified mail to such new
address.
20.7 Costs. Each Party will reimburse the other Party for court costs,
attorney's fees, costs of investigation or collection and similar
expenses incurred by the Party in the enforcement of any right or
privilege hereunder.
20.8 Captions. The captions in this Agreement are for convenience only
and shall not be construed to define or limit any of the terms
herein.
20.9 Publicity and Advertising. Without the prior written consent of the
other party, no party hereto will disclose to any person the terms
and
15
<PAGE>
conditions of this Agreement, except as may be required by law and
then only in compliance with requirements for Confidential
Proprietary Information found in this Agreement. Customer shall
submit to ALLTEL all advertising, sales promotion, press releases
and other publicity matters relating to the Service furnished by
ALLTEL under this Agreement wherein ALLTEL's name or marks is
mentioned or language from which the connection of said names or
marks therewith may be inferred or implied. Customer shall not
publish or use such advertising, sales promotion, press releases, or
publicity matters without ALLTEL's prior written approval.
20.10 Assignment. Any assignment of this Agreement, in whole or in part,
or any other interest hereunder without the other party's prior
written consent shall be void, except that this Agreement is fully
assignable without consent from the other party upon the occurrence
of a merger or change of control of either party.
20.11 Authorized Signatures. ALLTEL and Customer each represent that the
individual signing this Agreement on its behalf has the power and
authority to enter into this Agreement and that this Agreement
constitutes a valid and binding obligation of each party.
20.12 Compliance with Laws. Both parties shall comply with all applicable
local, state, and federal regulations, laws, ordinances, rules, and
decisions.
20.13 Acts of God. In no event shall either party have any liability for
any failure to comply with this Agreement, accept for any
obligations to make payments, if such failure results from the
occurrence of any contingency beyond the reasonable control of the
parties, including without limitation the Service provider serving a
particular area or Area, strike or other labor disturbance, riot,
theft, flood, fire, lightning, storm, any act of God, power failure,
war, national emergency, interference by any government or
governmental agency, embargo, seizure, or enactment of any law,
statute, ordinance, rule or regulation.
16
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives.
ALLTEL COMMUNICATIONS INC. At ROAD, INC.
1 ALLIED DRIVE 47200 BAYSIDE PARKWAY
LITTLE ROCK, ARKANSAS 72202 FREEMONT, CA. 94538
DOING BUSINESS AS ALLTEL
By: /s/ PATRICK HARTER By: /s/ KRISH PANU
------------------------------------ ------------------------------------
Name: PATRICK HARTER Name: Krish Panu
---------------------------------- ----------------------------------
Title: VPGM-Phoenix Title: President
--------------------------------- ---------------------------------
Date: May 17, 2001 Date: May 10, 2001
---------------------------------- ----------------------------------
<PAGE>
EXHIBIT A
This Exhibit A sets forth the Area(s), as that term is used in this Agreement,
in which ALLTEL is authorized to provide CRS, and ALLTEL Wireless Cellular
Digital Packet Data network, as described in this Agreement. In this Exhibit
there is described the individual counties of the MSA's and/or RSA's in which
ALLTEL is authorized to conduct its CRS and wireless data operations
1. (a) COUNTIES OF THE MSA(s) IN WHICH ALLTEL IS LICENSED:
ARIZONA COUNTIES:
Maricopa County in PHOENIX MSA
Pima County in TUCSON MSA
NEW MEXICO COUNTIES:
Sandoval and Bernalillo in ALBUQUERQUE MSA
Dona Ana County in LAS CRUCES MSA
TEXAS COUNTIES:
El Paso County in EL PASO MSA
FLORIDA COUNTIES:
Pasco MSA (65%)
Pinellas MSA (95%)
Hillsborough MSA (75%)
Lakeland MSA (45%)
Manatee MSA (30%)
Sarasota MSA (20%)
OHIO COUNTIES:
Lorain County (40%)
Cuyahoga County
Geauga County (35%)
Lake County (55%)
Medina County (85%)
Portage County (25%)
Stark County (40%)
(b) COUNTIES OF THE RSA(s) IN WHICH ALLTEL IS LICENSED:
ARIZONA COUNTIES
Coconino & Yavapai in AZ 2-COCONINO RSA
Gila and Pinal in AZ 5-GILA RSA
Florida Counties
Charlotte RSA (20%)
Hardee RSA (15%)
18
<PAGE>
EXHIBIT B
PRICE SCHEDULE*
PRICE INCLUDED DATA VOLUME OUT OF MARKET - ROAMING
----- -------------------- -----------------------
[*] [*] Kilobyte Allowance [*] per KB
Each Kb is [*]
Activation Fee of [*] each IP
Included features: Internet routed I.P. All Alltel CDPD markets as listed in
Exhibit "A"
*The availability of this pricing is contingent upon Customer activating a
[*] IP's on ALLTEL's network within the first 90 days of the Agreement
and a minimum of [*] IP's by the end of the first year of the Agreement. If
Customer fails to do so, Customer shall be obligated to pay ALLTEL The Standard
Contract rate of [*] per month with Kilobyte allowance of [*].
[*] Confidential material redacted and filed separately
with the SEC.
<PAGE>
EXHIBIT C
ALLTEL WIRELESS DATA PACKET SERVICE REQUEST FORM
PLEASE FAX REQUESTS TO AT
------------------- -----------------------
Contract Number Date
--------------------------- --------------------
Customer Number Quantity
--------------------------- -----------------
MDIS EID's NEI's Activation/Deactivation Date
____ 1.______________________ 1.______________________ 1.____________________
2.______________________ 2.______________________ 2.____________________
3.______________________ 3.______________________ 3.____________________
4.______________________ 4.______________________ 4.____________________
5.______________________ 5.______________________ 5.____________________
MDIS EID's NEI's Activation/Deactivation Date
____ 1.______________________ 1.______________________ 1.____________________
2.______________________ 2.______________________ 2.____________________
3.______________________ 3.______________________ 3.____________________
4.______________________ 4.______________________ 4.____________________
5.______________________ 5.______________________ 5.____________________
MDIS EID's NEI's Activation/Deactivation Date
____ 1.______________________ 1.______________________ 1.____________________
2.______________________ 2.______________________ 2.____________________
3.______________________ 3.______________________ 3.____________________
4.______________________ 4.______________________ 4.____________________
5.______________________ 5.______________________ 5.____________________
MDIS EID's NEI's Activation/Deactivation Date
____ 1.______________________ 1.______________________ 1.____________________
2.______________________ 2.______________________ 2.____________________
3.______________________ 3.______________________ 3.____________________
4.______________________ 4.______________________ 4.____________________
5.______________________ 5.______________________ 5.____________________
Authorized Signer:
---------------------------------
Print Name and Title
Signature:
-----------------------------------------
20