CDPD Data National Service Agreement - GTE Wireless Inc. and @Road Inc.
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CDPD DATA NATIONAL
SERVICE AGREEMENT
PREPARED FOR
@ROAD, INC.
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CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
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CDPD DATA NATIONAL
SERVICE AGREEMENT
TABLE OF CONTENTS
I. Agreement
II. Exhibit A - GTEW Markets
III. Exhibit B - Service and Pricing
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@ ROAD, INC.
CDPD Data National
Service Agreement
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This CDPD Data National Service Agreement (this "Agreement") is between GTE
Wireless Incorporated on its behalf and on behalf of its affiliates and
partnership interests (collectively referred to as "GTEW") and @Road, Inc.
("Customer") for the provision of Cellular Digital Packet Data Services ("CDPD
Services") in those markets (the "Markets") set forth on Exhibit A hereto, as
modified from time to time by GTEW. The parties agree as follows:
1. Term. The term (the "Term") of this Agreement shall be for an initial period
of one (1) year, which shall commence as set forth in Section 15. Upon the
expiration of the initial period, this Agreement shall automatically and
perpetually renew for additional periods of one (1) years each, unless
canceled by either party upon written notice given to the other party at
least sixty (60) days prior to the expiration of the initial term and any
renewal term then in effect. If at any time during the Term Customer desires
to enter into a different relationship with GTEW, GTEW agrees to negotiate in
good faith with the Customer to enter into a contract for such different
relationship, which contract will supersede and replace this Agreement,
unless otherwise agreed to by the parties.
2. Service Pricing. Pricing for CDPD Services will be in accordance with the
Pricing Plan that is attached hereto and incorporated herein as Exhibit B. It
is specifically acknowledged and agreed by the parties that GTEW cannot and
will not attempt to set, influence or determine the service rates or pricing
of other carriers.
3. Specification of Service. GTEW or an affiliate company will provide and
procure for Customer CDPD Services for Customer's use in the Markets. In the
event that any Market is sold or otherwise divested by GTEW, then GTEW shall
have no obligation to continue providing CDPD Services to Customer. The areas
effectively served may be subject to transmission limitations caused by
atmospheric and other natural or artificial conditions, including the type
and condition of Customer's equipment. GTEW assumes no responsibility to
Customer or its CDPD Services users for marginal transmissions arising from
or related to interruptions or limitations caused by any natural, atmospheric
or artificial causes. The names assigned to GTEW's CDPD Services, "Coverage"
and "Local, State, Regional and National" are representative terms that do
not imply or denote that actual CDPD Services coverage is co-terminous with
these respective geographical areas. In any geographical area there may be
sections in which CDPD Services coverage does not exist.
4. Support Services. GTEW will provide technical assistance to Customer, but not
directly to Customer's end users, through its National Customer Support
Center.
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Customer will provide GTEW with contacts and dispatch information to
facilitate appropriate response to interruptions of CDPD Services. GTEW
will work in good faith to develop and implement a procedure that will
enable it to notify Customer of scheduled and unscheduled network outages
that are expected to last more than four hours and that affect Customer's
CDPD Services.
5. Minimum Commitment. Customer agrees: (a) to activate no fewer than two
thousand five hundred (2,500) network entity identifier ("NEIs"; each is an
"NEI"), which is an Internet protocol address identifying a CDPD user,
within six months of the commencement date hereof as set forth in Section
15, and (b) to maintain each of the NEIs for a period of at least one year
after its date of activation (such one-year period is the "NEI Term"),
provided however, that Customer shall not be penalized for any deactivation
due to hardware problems, provided that a substitute NEI is activated at
any time during the NEI Term to replace any such deactivation and provided
that the number of such deactivations does not exceed five percent (5%) of
Customer's total NEIs. For each NEI that is deactivated before the end of
the NEI Term. Customer agrees to pay to GTEW the amount of the monthly
access fee for the appropriate pricing tier for the month of the NEI
deactivation times the number of months remaining in the NEI Term. If the
minimum 2,500 NEIs have not been activated within six months of the
commencement date hereof, then the tiered pricing associated with the 2501
units and above will not be available to Customer.
Notwithstanding the above, Customer shall be permitted to disconnect any
NEI within 30 days of its activation without liability for the early
termination provision set forth above.
6. NEIs. In connection with its provision of CDPD Services hereunder, GTEW
shall provide Customer with an NEI for each user device. Customer shall
acquire no proprietary interest in any such NEI designated for its use, and
GTEW reserves the right to change such NEIs or to re-assign such NEIs to
other customers.
7. Equipment/Settings. GTEW may, but shall not be obligated to, make available
CDPD equipment (the "Equipment") for purchase by Customer. In such event,
GTEW will provide to Customer the terms and conditions for the purchase of
such Equipment. Customer agrees that, if it fails to make the required
configuration to select GTEW CDPD Services and therefore uses the CDPD
services of another carrier instead of the CDPD Services of GTEW, Customer
will be responsible for visiting charges of [*] per kilobyte for said
usage as described herein.
8. Data Services Reporting and Billing. For CDPD Services charges, payment
terms are as follows:
Payment for CDPD Services is due within thirty (30) days of the date
of invoice. Overdue balances shall accrue a late payment fee equal to
the lesser of one and one-half percent (1 1/2%) per month on any
amount not paid when due, or the highest amount allowable by
applicable state law or tariff. The fee shall be paid every month on
all outstanding overdue balances, and shall be prorated for each day
that the payment is overdue. Such late payment fee will not be
compounded monthly, if timely payment is not received in full, GTEW
may, at its sole option and without limiting any other remedy
available under law or in this Agreement,
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* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
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disconnect CDPD Services, subject to a reconnection charge for service
restoration. Customer must meet GTEW's established credit criteria in
order to receive CDPD Services hereunder.
In the event that Customer reasonably disputes any portion of an
invoice, then Customer shall nevertheless pay the undisputed portion
of the bill in a timely manner. As to the disputed portion, Customer
shall, within thirty (30) days of its receipt of the invoice involved:
(1) notify the Finance Department of GTEW that Customer disputes
certain portions of the invoice and identify the disputed items; (2)
advise GTEW of the basis of the dispute; and (3) provide GTEW with
such documentation as it has to support its position. Within thirty
(30) days of its receipt of the preceding from Customer, GTEW shall
provide Customer with a written response, including any documentation
GTEW has to support its position. If the exchange of communications
does not resolve the dispute, then a representative of each party with
authority to settle the dispute shall meet at a mutually agreed upon
time and place within thirty (30) days of the date of GTEW's response
for the purpose of resolving the dispute. If the party representatives
are unable to resolve the dispute, then the parties are free to pursue
other alternatives, legal or equitable, to resolve the matter.
9. Taxes. Prices set forth herein are exclusive of all federal, state,
municipal or other government, excise, sales, use, occupational, or like
taxes. The amount of any present or future tax applicable to the sale of
the Equipment or CDPD Services shall be paid by the Customer or, in lieu
thereof, the Customer shall furnish GTEW with a tax-exemption certificate
acceptable to the appropriate tax authorities. Sales taxes payable for
services for each NEI hereunder are calculated according to the location of
the home Market for such NEI.
10. Limitation of Liability. GTEW shall not be liable to Customer or to CDPD
Services users for interruptions caused by failure of equipment or CDPD
Services, failure of communications, power outages, or other interruptions
not within the complete control of GTEW. There shall be no credits,
reductions or setoff against the charges for CDPD Services for downtime or
interruption of CDPD Services unless such CDPD Services Interruption
exceeds twenty, four (24) hours in duration. GTEW shall provide Customer
with a credit equal to one-thirtieth (1/30) of the recurring monthly charge
for CDPD Services for each twenty-four (24) hour period from the time of
notice of interruption until CDPD Services restoration, provided that
Customer timely notifies GTEW of the CDPD Services interruptions.
The liability of GTEW for any cause whatsoever, including but not limited
to any failure or disruption of CDPD Services provided under this
Agreement, regardless of the form of action, whether in contract or tort or
otherwise, shall be limited to an amount equivalent to charges payable by
Customer under this contract for the services or products furnished
hereunder during the period such claim arose.
Notwithstanding any provision contained herein, GTEW shall not be liable to
Customer, or to its users of CDPD Services, for any special, incidental,
consequential or punitive damages of any kind, including, but not limited
to,
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loss of business opportunity, loss of profits, or loss of use of the
Equipment. Notwithstanding any provision contained herein, Customer shall
not be liable to GTEW for any special, incidental, consequential or
punitive damages of any kind, including but not limited to loss of business
opportunity or loss of profits.
11. Confidentiality
A. Non-Disclosure of Agreement Terms. Neither party will make any
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disclosure regarding the terms of this Agreement or the business arrangements
described herein without obtaining the prior written consent to the other party;
provided however, that (i) the parties may communicate with end-users and
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prospective end-users to the extent reasonably required to perform hereunder
(but will obtain prior written approval of the other party hereto before
identifying such party in advertisements, mass mailings or general publicity);
(ii) after notice to the other party, each party will be permitted to make such
disclosures as are required by legal requirements, which include but are not
limited to court orders, or regulatory requirements applicable to, and beyond
the reasonable control of, the party; and (iii) either party may disclose the
terms of this Agreement and the business arrangements described herein to
employees of their affiliates who have a need to know, so long as such affiliate
employees are advised of and agree to be bound by the provisions of this Section
11.
B. Confidential Information. The parties recognize that in the course
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of performing this Agreement, both parties will have access to certain
confidential or proprietary information belonging to the other and each desires
that any such confidential and proprietary information remain confidential. Each
party agrees that, both during the term hereof and for a period of three (3)
years after the termination of this Agreement, such party will use the same care
it uses to protect its own confidential proprietary information, but in no event
less than reasonable care, to prevent the disclosure and to protect the
confidentiality of both (i) written information received from the other party
that is marked or identified as confidential, and (ii) oral or visual
information identified as confidential at the time of disclosure that is
summarized in writing and provided to the other party in such written form
within twenty (20) days after such oral or visual disclosure ("Confidential
Information"). Confidential Information does not include information that is (i)
already known by the recipient party without an obligation of confidentiality,
(ii) publicly known or becomes publicly known through no unauthorized act of the
recipient party, (iii) rightfully received from a third party, (iv)
independently developed by the recipient party without use of the other party's
Confidential information, (v) disclosed without similar restrictions to a third
party by the party owning the Confidential Information, (vi) approved by the
other party for disclosure, or (vii) required to be disclosed pursuant to a
requirement of a governmental agency or law so long as the disclosing party
provides the other party with notice of such requirement prior to any such
disclosure.
C. Remedies. Each party acknowledges that the other would suffer
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irreparable damage in the event of any breach of the provisions of this Section
11. Accordingly, in such event, a party will be entitled to temporary,
preliminary and final injunctive relief, as well as any other applicable
remedies at law or in equity against the party who has breached or threatened to
breach this Section 11.
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D. No Rights Granted. Nothing contained in this Agreement shall be
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construed as granting or conferring any rights by license or otherwise in any
Confidential Information disclosed to the receiving party. All Confidential
Information shall remain the property of the disclosing party and shall be
returned by the receiving party to the disclosing party upon request. All notes,
abstracts, memoranda, or other documents prepared by receiving party which
contain Confidential Information or any discussion thereof, shall be destroyed
or returned to the disclosing party upon written request. If the parties hereto
decide to enter into any licensing, development or other arrangement regarding
any Confidential Information or present or future patent claims disclosed
hereunder, it shall only be done on the basis of a separate written agreement
between them. No disclosure of any Confidential Information hereunder shall be
construed a public disclosure of such Confidential Information by either party
for any purpose whatsoever.
12. General Provisions.
A. Service Disclaimer. Except as expressly set forth herein, GTEW makes no
warranties or representations, either express or implied, concerning the
CDPD Services, and GTEW expressly disclaims warranties of fitness for a
particular use or purpose, the warranty of merchantability and any other
warranty implied by law.
B. Force Majeure. Neither party shall be liable for any delays or failure
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to perform resulting directly or indirectly from acts of God, any
governmental authority, accidents and disruptions, including fires,
explosions, war, insurrection, riots, labor disputes and strikes. In
addition to such causes, neither party shall in any event be liable for
delay or failure to perform resulting directly or indirectly from any cause
which is beyond that party's reasonable control.
C. Regulations. This Agreement shall at all times be subject to the
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decisions, orders, statutes and rules of the federal and state regulatory
authorities having jurisdiction over the CDPD Services provided under this
Agreement.
D. Events of Default.
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1. It shall be a Customer default under this Agreement if Customer
is thirty (30) days overdue on any undisputed payments under Exhibit
B.
2. Any one of the following events shall constitute a default by
either party under this Agreement:
a. The party becomes insolvent or makes an assignment for the
benefit of creditors;
b. A receiver, trustee, conservator, or liquidator of all or a
substantial part of the party's assets is appointed with or
without said party's application or consent;
c. A petition is filed by or against (without dismissal within
60 days) the party under the Bankruptcy Code or any amendment
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thereto or under any other insolvency law or laws providing for
the relief of debtors; or
d. The party assigns or attempts to assign this contract to a
third party, except as set forth in Section 9F.
E. Termination. Either party may terminate this Agreement in the event of
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the other party's material default, as set forth in Section 12D, which
remains unresolved for a period of thirty (30) days following written
notice by the non-defaulting party. GTEW may terminate this Agreement,
without liability to Customer, in any of the areas set forth on Exhibit A,
wherein GTEW or an affiliate company sells, ceases to own, manage or
operate the network therein. Should GTEW terminate this Agreement, the
Customer shall be entitled to a refund of any payment made in advance of
the actual provision of services. In the event that GTEW modifies its
Markets so that CDPD Services to Customer are substantially curtailed,
Customer may terminate this Agreement upon ten days prior written notice to
GTEW. In addition, GTEW may terminate this Agreement if it determines, in
its business judgment, to discontinue CDPD Services as a commercial
offering.
F. Non-assignment. Neither party may assign this Agreement, except to an
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affiliate company or upon GTEW's sale of any market as provided
hereinafter, without the other's prior written consent, and such consent
shall not be unreasonably withheld. In the event that Customer re-
incorporates in another state and assigns this Agreement to the newly-
incorporated entity, which new entity will assume all of the Customer's
rights and responsibilities hereunder and which new entity will be a
successor to Customer, then this Agreement may be assigned by Customer to
the new entity upon notice to GTEW. In the event of the sale of any market
or the cessation of ownership, management or control by GTEW, GTEW may seek
the assignment of this Agreement to its successor without the requirement
of Customer's consent; any such assignment will include an assumption by
the assignee of GTEW's rights and responsibilities hereunder and will act
to relieve GTEW of such rights and responsibilities, in the event that GTEW
assigns this Agreement to a successor, which successor assumes GTEW's
rights and responsibilities hereunder, GTEW will make a good faith effort
to notify Customer before such assignment and will in any case notify
Customer promptly after such assignment, and Customer may terminate this
Agreement at its sole discretion due to such assignment within thirty days
after written notification of the assignment from GTEW. Notwithstanding the
above provisions, nothing contained herein shall be construed as an
obligation or requirement by GTEW to obtain any such assignment or as a
condition of sale of any market or customer base.
G. Non-waiver. Failure of either party to this Agreement to enforce any
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right shall not constitute a waiver of such right or any other right,
whether of a similar or dissimilar nature, and shall not prohibit the
exercise of the same right at a future date.
H. Severability. In the event that any provision of this Agreement shall
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be found to be void or unenforceable, such finding shall not be construed
to render any
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other provision of this Agreement either void or unenforceable, and all
other provisions which are invalid or unenforceable shall not substantially
affect the rights or obligations granted to or undertaken by either party.
I. Headings. The headings of the provisions of this Agreement are inserted
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for convenience only and shall not constitute a part hereof.
J. Law Governing. This Agreement is entered into under the laws of the
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State of Georgia and shall be construed thereunder.
K. Counterparts. This Agreement may be signed in two or more counterparts,
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each of which shall be considered an original and which shall, taken
together, constitute this Agreement.
13. Notice. Any notice to be given hereunder by either party to the other shall
be in writing and shall be deemed given when sent by postage prepaid
certified or registered United States mail.
Notices to GTEW shall be addressed to:
GTE Wireless Incorporated
David Gambrell
Business Marketing - Data Products
One GTE Place
Alpharetta, Georgia 30004
Phone: (678) 339-4000
cc: Dale Voyles
Commercial Contracts Counsel
(same address)
Notices to Customer shall be addressed to:
@Road, Inc,
47200 Bayside Parkway
Fremont, California 94538
Attention: Brett Moore
Phone: 510-668-1638
Fax: 510-353-6021
Cc: J.D. Fay
General Counsel
(same address and telephone)
Fax: 510-353-6028
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 given to such new address.
14. Entire Agreement. This is the CDPD Data National Service Agreement
referenced in Section 2.4 (a) of the Joint Marketing Agree, merit between
the parties entered into as of even date hereof, which is expressly
incorporated
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Fax: 510-353-6028
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 given to such new address.
14. Entire Agreement. This is the CDPD Data National Service Agreement
referenced in Section 2.4 (a) of the Joint Marketing Agreement between the
parties entered into as of even date hereof, which is expressly
incorporated herein by this reference, and these two agreements, including
all Exhibits, constitute the entire and only agreements between the parties
with regard to the subject matter hereof and thereof, and any
representation, promise or condition, whether oral or in writing, including
prior or contemporaneous representations of sales representatives or other
personnel of GTEW, which is not fully set forth herein or expressly
incorporated herein by reference shall not be binding upon either party.
Other than the two agreements expressly referenced herein, this Agreement
supersedes all other agreements between the parties on this subject matter.
Any addition to or waiver, alteration or modification of the foregoing
conditions shall not be valid or binding upon either party unless made in
writing, and signed on behalf of both parties by an authorized
representative.
15. Term. The term of this Agreement is from May 5, 2000 to May 5, 2001.
The parties hereto have executed this Agreement through duly authorized
representatives and wishing to be legally bound hereto are so bound as of
this 5/th/ day of May, 2000.
@ROAD, INC. GTE/WIRELESS INCORPORATED
By: /s/ Krish Panu By: /s/ Michael McDunough
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(Signature) (Signature)
Name: Krish Panu Name: Michael McDunough
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Title: Chairman and CEO Title: President
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By: /s/ Dale Voyles
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(Signature)
Name: Dale Voyles
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Title: Assistant Secretary
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Exhibit A
GTEW MARKETS
GTEW Markets
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City State A Side/B Side
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Akron OH B
Austin TX B
Bakersfield CA B
Bradenton FL B
Canton OH B
Cleveland OH B
Frankfort KY A
Fresno CA B
Honolulu HI B
Houston TX B
Galveston TX B
Greenville VA B
Indianapolis IN B
Lakeland-Winter Haven FL B
Lorain-Elyria OH B
Louisville KY A
Memphis TN A
Nashville TN A
Newport News VA B
Norfolk VA B
Petersburg-Colonial Heights VA B
Raleigh-Durham NC A
Richmond VA B
San Diego CA A
San Francisco-Oakland CA B
San Jose CA B
Tampa FL B
Visalia-Tulare CA B
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Exhibit A
(continued)
GTEW Markets
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AMERITECH
Chicago IL B
Aurora-Elgin IL B
Joliet IL B
St. Louis MO A
Springfield IL B
Bloomington IL A
Non-GTEW Markets
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SBC Market
Cincinnati OH B
Dayton OH B
Detroit-Ann Arbor MI B
Flint MI B
BELL ATLANTIC/NYNEX
Anderson SC
Allentown PA
Atlantic City NJ
Baltimore MD
Boston MA
Bridgeport/Stamford CT
Norwalk/Danbury CT
Charlotte NC
Frederick MD
Greenville SC
Hartford CT
Hunterdon NJ
Long Branch-Asbury Park NJ
Manchester-Nashua NH
New Brunswick NJ
New Haven CT
New London/Norwich CT
NYC NY
Petersburg-Colonial Heights PA
Philadelphia PA
Pittsburgh PA
Trenton NJ
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Wilmington DE
Worchester-Fitchburg MA
Exhibit A
(continued)
Non-GTE Markets
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AT&T WIRELESS
Dallas TX
Denver CO
Jacksonville FL
Las Vegas NV
Los Angeles CA
Miami-Ft Lauderdale FL
Minneapolis-St. Paul MN
Modesto CA
Oklahoma City OK
Orlando FL
Portland OR
Reno NV
Sacramento CA
Salt Lake UT
San Antonio TX
Seattle-Everett WA
Stockton CA
Tulsa OK
Tacoma WA
West Palm Beach FL
SOUTHWESTCO
Albuquerque NM
Cococino AZ
El Paso TX
Las Cruces NM
Phoenix AZ
Tucson AZ
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Exhibit B
CDPD Pricing
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Visiting
Tier Activation Monthly Home Rate Charge
Number Of Fee Access Fee* Price Per Per
NEI's Per NEI Per NEI Kilobyte** Kilobyte***
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I 0 - 500 [****] [****] [****] [****]
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II 501-2500 [****] [****] [****] [****]
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III 2501-5000 [****] [****] [****] [****]
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IV 5001-10000 [****] [****] [****] [****]
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V 10001+ [****] [****] [****] [****]
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*No kilobytes are included in the Monthly Access Fee.
**Home Rate Price per Kilobyte applies to CDPD usage on GTEW CDPD network, only
in GTEW Home Markets as determined by CDPD usage of end user.
***Visiting Charges apply to all CDPD usage on CDPD networks provided by
carriers other than GTEW in lieu of the Home Rate set forth above.
Customer's tier for each month for the purposes of pricing for all active units
will be calculated based on the number of units active for Customer at the end
of the previous month, and this tier can fluctuate either up or down. For
example, if Customer ends the month of February with 1050 units active, pricing
for March for the CDPD service for ALL of Customer's active units will be at the
[****] monthly recurring fee and [****] per kilobyte. If Customer then ends
March with 2501 active units, pricing for April for the CDPD service for ALL of
Customer's active units will be at the [****] monthly recurring fee and [****]
per kilobyte. Likewise, if Customer then ends April with only 1000 active units,
pricing for May will be priced at the [****] monthly recurring fee and [****]
per kilobyte. Activation fees are one-time charges per NEL and are calculated
according to specific tiered intervals. For example, number 1 through number
2500 NEI are subject to a [****] per NEI activation fee. All NEI's above 2500
are subject to a [****] per NEI activation fee. Activation fee tiers are based
on total active NEI's in Customer account at the time of activation.
**** CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
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Frame F-ES Prices
1) 56kbps Service (16kbps PVCs)
Meet Us at the Hub
Install: [*] one time
Service Monthly: [*]
Customer Managed Service
Install: [*] One time
Service Monthly: [*]
LEC Charge Monthly: variable per customer
Full Service:
Install: [*] one time OR Monthly Rental [*]
Service Monthly: [*]
LEC Charge Monthly: variable per customer
2) 256kbps Fractional T1 Service (64kbps PVCs)
Meet Us at the Hub
Install: [*] one time
Service Monthly: [*]
Customer Managed Service
Install: [*] One time
Service Monthly: [*]
LEC Charge Monthly: variable per customer
Full Service:
Install: [*] one time OR Monthly Rental [*]
Service Monthly: [*]
LEC Charge Monthly: variable per customer
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* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.