Strategic Agreement - Hitachi Software Engineering Co. Ltd. and @Road Inc.
Strategic Agreement between
Hitachi Software Engineering Co., Ltd. and @Road, Inc.
This Strategic Agreement ("Agreement") is made by and between Hitachi
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Software Engineering Co., Ltd., with a principal place of business at 5-79 Onoe-
cho, Naka-ku Yokohama, 231-0015, Japan ("Hitachi Software"), and @Road, Inc.,
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with principal place of business at 47200 Bayside Parkway, Fremont, CA 94538
USA ("@Road").
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I. General Provisions
1. Recitals
a. Hitachi Software has, as a primary objective, to become a major service
provider in the mobile resource management and human location system for a wide
spectrum of applications in Japan. Additionally, Hitachi Software plans to
establish strategic partnerships with a variety of companies for the development
of mobile resource management businesses including, but not limited to:
a. major mobile packet communication carrier(s),
b. major distribution/delivery companies,
c. major taxi companies,
d. major contents supplier(s), and
e. hardware manufacturer(s) of on-board equipment and personal digital
assistants.
1.2 @ Road desires to provide, under license to certain strategic alliance
partners, including, without limitation, Hitachi Software, such proprietary
hardware, software and intellectual property as necessary to enable such
partners to provide FleetASAP (as defined below) services.
1.3 In consideration of the agreements contained herein, the parties hereby
agree as follows:
2. Definitions
2.1 @Road Patents: "@Road Patents" means US Patent # 5,959,577 and
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#5,990,827 and their corresponding application(s) filed in Japan, and any and
all U.S. and Japanese patents owned by @Road and necessary for Hitachi Software
to use the FleetASAP Software, @Road Documentation, and Hardware in accordance
with the terms and conditions of this Agreement.
2.2 @Road Documentation: "@Road Documentation" means all documentation,
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specifications, interface control documents, and other materials which @Road
provides to Hitachi Software hereunder, as described in more detail on Exhibit A
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hereto. @Road Documentation includes all error corrections, updates, and
enhancements thereto, if any, which @Road makes available to Hitachi Software
under this Agreement.
2.3 @Road Trademarks: "@Road Trademarks" means the trademarks, logos, and
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trade names of @Road set forth on Exhibit B hereto, as amended by the parties
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from time to time.
2.4 Class A Subscriber: "Class A Subscriber" will have the meaning set forth
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on Exhibit C hereto.
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2.5 Class B Subscriber: "Class B Subscriber" will have the meaning set forth
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on Exhibit C hereto.
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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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2.6 Effective Date: "Effective Date" means the last date on which this
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Agreement is signed by both parties.
2.7 FleetASAP: "FleetASAP" means @Road's service, as of the Effective Date,
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which measures positional information of iLMs and transmits that positional
information to a data center, which data center then transmits such information
to FleetASAP customers through the Internet. With the addition of an iDT, the
service includes two-way text messaging. FleetASAP is described in more detail
on Exhibit A hereto.
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2.8 FleetASAP Software: "FleetASAP Software" means the software which (a)
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enables FleetASAP, (b) @Road provides to Hitachi Software hereunder and (c) is
described in more detail on Exhibit A hereto. FleetASAP Software includes,
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without limitation, all bug fixes, updates, upgrades, and enhancements, if any,
which @Road makes available to Hitachi Software hereunder.
2.9 Fujitsu Patents: "Fujitsu Patents" means any and all Japanese patents
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owned by Fujitsu and pertaining to Mobile Resource Management, or portions
thereof, and includes, without limitation, Japanese Patent No.Toku-Kai-Hei
10-13961.
2.10 Hardware: "Hardware" means iDT and iLM, including embedded firmware.
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2.11 Hitachi Software Proprietary Rights: "Hitachi Software Proprietary
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Rights" means all Intellectual Property Rights owned, controlled, or licensed by
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Hitachi Software and pertaining to Mobile Resource Management, including,
without limitation, Hitachi Software Intellectual Property Rights in the Hitachi
Software Documentation.
2.12 Hitachi Software Documentation: "Hitachi Software Documentation" means
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all blueprints, drawings, photographs, plans, instructions, computer software
and documentation relating to Mobile Resource Management which Hitachi Software
will deliver to @Road hereunder.
2.13 Hitachi Software FleetASAP: "Hitachi Software FleetASAP" means a
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service substantially similar to FleetASAP, and enabled by FleetASAP Software,
which Hitachi Software will offer in Japan, a diagram of which is attached
hereto as Exhibit I.
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2.14 Hitachi Software Trademarks: "Hitachi Software Trademarks" means the
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trademarks, logos, and trade names of Hitachi Software set forth on Exhibit B
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hereto, as amended by the parties from time to time.
2.15 iDT: "iDT" means @Road's product, as of the Effective Date, which is an
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Internet Data Terminal that, when used in conjunction with the iLM, provides
two-way text messaging between the dispatcher and an automotive vehicle via the
Internet and is described in more detail on Exhibit A hereto.
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2.16 iLM: "iLM" means @Road's product, as of the Effective Date, which is an
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Internet Location Manager that provides vehicle location, speed, and direction
of travel, and is described in more detail on Exhibit A hereto.
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2.17 iLM Firmware Kernel: "iLM Firmware Kernel" means the core of the iLM
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firmware including the operating system, global positioning system software,
input/output controls, transmission packet controls, iDT controls and other
basic operation modules.
2.18 iLM Firmware Application Program Interface: "iLM Firmware Application
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Program Interface" means the collection of function calls to enable application
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programs to communicate
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with the iLM Firmware Kernel to achieve application program requirements and
that is intended to isolate application development efforts from the iLM
Firmware Kernel, decrease programming complications, not interfere with other
program applications and minimize efficiency loss. @Road shall deliver to
Hitachi Software a document to describe the application program interface
("API").
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2.19 Intellectual Property Rights: "Intellectual Property Rights" means any
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rights with respect to inventions, discoveries, or improvements, including
patents, patent applications, and certificates of invention; trade secrets,
know-how, or similar rights; semiconductor chip protection; the protection of
works of authorship or expression, including copyrights and future copyright as
it arises under co-development activities of the parties; and trademark, service
marks, logos, and trade dress; and similar rights under any laws or
international conventions in the United States or Japan, including the right to
prosecute, enforce, and obtain damages.
2.21 Mobile Resource Management: "Mobile Resource Management" means the
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measurement of positional information by GPS (Global Positioning System)
sensors, which information is transmitted to a data center and then on to
subscribers of mobile resource management services using the Internet.
2.22 Program Technology: "Program Technology" means the products, results,
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ideas, developments and inventions which Hitachi Software and/or @Road reduce to
practice under this Agreement, including, but not limited to, any schematics,
layouts, plans, architectures, models, data, formulae, algorithms, methods,
practices, prototypes, tests, tools, software, and reports.
2.23 Release Event: "Release Event" means (i) the institution by or against
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@Road of insolvency, receivership or bankruptcy proceedings or any other
proceedings for the settlement of @Road's debts, provided such proceeding is not
dismissed within ninety (90) days after its filing, (ii) @Road's making an
assignment for the benefit of creditors, or (iii) @Road's dissolution or ceasing
to do business.
2.23 Source Code: "Source Code" means those portions of the FleetASAP
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Software which @Road will provide to Hitachi Software in human readable format,
as set forth on Exhibit A hereto.
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2.24 Specifications: "Specifications" means @Road's published specifications
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which describe the functionality, module description, and performance of the
Hardware.
2.25 Subscribers: "Subscribers" means all Class A Subscribers and Class B
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Subscribers.
2.26 Taxes: "Taxes" means all taxes, levies, imposts, duties, fees or other
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charges of any nature however imposed by any country or any subdivision or
authority of or in that country in any way connected with this Agreement or any
instrument or agreement required hereunder, and all interest, penalties or
similar liabilities with respect thereto, except such taxes as are imposed on or
measured by @Road's net income by a country, or any subdivision or authority of
or in that country, in which @Road is doing business, for purposes of that
country's income tax laws.
3. Branding
3.1 @Road will have the right to name Hitachi Software as a strategic partner
on @Road's website and in @Road's marketing materials. @Road will provide
examples of such uses to Hitachi Software upon Hitachi Software's written
request. In connection with such usage, @Road will comply with the guidelines,
if any, set forth on Exhibit B hereto.
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3.2 Hitachi Software will place the @Road Trademarks (including without
limitation the @Road logo) (a) above the fold on all websites which Hitachi
Software uses in connection with the Hitachi Software FleetASAP service and (b)
in other locations mutually agreed upon by the parties, and as specified on
Exhibit B hereto.
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4. Confidentiality
4.1 During the term of this Agreement, it may be necessary for either party
to provide proprietary information to the other. In such event, the disclosure
and use of all proprietary information shall be treated in accordance with the
Nondisclosure Agreement executed between the parties dated 31 January 2000.
4.2 It is understood that no technical information provided by @Road to
Hitachi Software under this Agreement will involve access to security
information, classified U.S. Government "confidential" or higher.
5. Ownership
5.1 Retention of Ownership. Both parties shall retain ownership of their
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respective Intellectual Property Rights that were in existence prior to the
Effective Date.
5.2 Technology Developed by Hitachi Software. Program Technology developed
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solely by any employee and/or consultant of Hitachi Software and which does not
incorporate @Road Intellectual Property Rights in the FleetASAP service,
FleetASAP Software, @Road Documentation, or Hardware, shall be owned solely by
Hitachi Software.
5.3 Technology Developed by @Road. Program Technology developed solely by
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any employee and/or consultant of @Road and which does not incorporate Hitachi
Software Proprietary Rights shall be owned solely by @Road.
6. Warranty
6.1 Warranty. @Road warrants that for a period of twelve (12) months from
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the date of shipment to Hitachi Software (the "Warranty Period"), all Hardware
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sold to Hitachi Software under this Agreement: (a) will be free from defects in
materials and workmanship, and (b) will substantially conform to the
Specifications for such Hardware. Hardware providing or incorporating any data
security or encryption functionality or secure data transport architecture is
provided on an "as is" basis without warranty of any kind.
6.2 Warranty Procedures. Hitachi Software will, within the Warranty Period,
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notify @Road in writing or by facsimile of any Hardware containing defects
covered by the limited warranties provided in Section 6.1, and will request a
Returned Material Authorization ("RMA") number. @Road will provide the RMA
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number in writing or by facsimile to Hitachi Software promptly following receipt
of the request. Promptly following its receipt of the RMA number, Hitachi
Software shall send such defective Hardware, freight prepaid by Hitachi
Software, to @Road directly or, if requested by @Road, to a repair facility
designated by @Road. Hitachi Software shall ship the Hardware in its original
shipping containers or in containers which provide equivalent protection, and
shall display the RMA number(s) on the outside of the containers. @Road
reserves the right to refuse to accept any rejected Hardware that does not bear
an RMA number on the outside of the container. If a defective Hardware unit is
received by @Road during the applicable Warranty Period, @Road will, at its sole
option and expense, repair
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or replace such Hardware using new or used Hardware or materials to make such
repair or replacement, and will ship the repaired or replaced Hardware to
Hitachi Software. @Road shall pay the charges for shipping properly rejected
Hardware back to Hitachi Software; otherwise, Hitachi Software shall be
responsible for such return shipping charges. This Section 6.2 states Hitachi
Software's sole remedy, and @Road's sole liability, arising out of the limited
warranties provided by @Road in Section 6.1.
6.3 Limitations. The foregoing warranties do not extend to (a)
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nonconformities, defects or errors in the Hardware due to accident, abuse,
misuse or negligent use of the Hardware or use in other than a normal and
customary manner, environmental conditions not conforming to @Road's
instructions, or failure to follow prescribed operating maintenance procedures,
(b) defects, errors or nonconformities in the Hardware due to modifications,
alterations, additions or changes to the Hardware not made or authorized to be
made by @Road, (c) normal wear and tear, or (d) damage caused by force of nature
or act of any third party.
6.4. No Other Warranty. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, @ROAD
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MAKES AND HITACHI SOFTWARE AND ITS CUSTOMERS AND SUBSCRIBERS RECEIVE NO
REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH
RESPECT TO THE HARDWARE, THE @ROAD DOCUMENTATION, THE FLEETASAP SOFTWARE, AND
ANY OTHER PRODUCTS, MATERIALS, OR TECHNOLOGY @ROAD MAKES AVAILABLE TO HITACHI
SOFTWARE HEREUNDER, AND @ROAD SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES AND
REPRESENTATIONS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, AND ANY
WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.
7. Indemnity
7.1 By @Road.
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(a) Indemnity. @Road will defend, at its expense, any action brought
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against Hitachi Software based upon a claim that the FleetASAP Software, the
Hardware, or the @Road Documentation, as used in accordance with the terms and
conditions of this Agreement, directly infringe a U.S. or Japanese patent,
copyright, or trade secret, and @Road further agrees to pay all damages and
costs including reasonable attorneys fees finally awarded against Hitachi
Software attributable to such claim; provided that @Road shall have sole control
of any such action or settlement negotiations, and further provided that Hitachi
Software shall notify @Road promptly in writing of such claim and shall give
@Road all authority, information and assistance reasonably necessary to settle
or defend such claim. @Road shall reimburse Hitachi Software for incidental
out-of-pocket expenses incurred by Hitachi Software in providing such
assistance. @Road shall not be liable for any costs or expenses incurred
without its prior written authorization.
(b) @Road Options. If the FleetASAP Software, the Hardware, or the @Road
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Documentation become, or in the opinion of @Road may become, the subject of a
claim of infringement of any United States or Japanese patent, trade secret, or
copyright, @Road may, at its option: (x) procure for Hitachi Software the right
to use the FleetASAP Software, the Hardware, or the @Road Documentation free of
any liability; (y) replace or modify the FleetASAP Software, the Hardware, or
the @Road Documentation to make it/them non-
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infringing; or (z) if any action is brought against @Road or Hitachi Software
and (x) and (y) of this sentence are not available to @Road on commercially
reasonable terms then @Road may remove the FleetASAP Software, the Hardware, or
the @Road Documentation, or part thereof, terminate all licenses related
thereto, and refund the applicable payments paid therefor by Hitachi Software,
less an amount equal to thirty-four percent (34%) for each year of use (adjusted
pro rata for a partial year of use).
(c) Exclusions from Indemnity. @Road assumes no liability hereunder for:
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(i) any method or process in which the FleetASAP Software, the Hardware, or the
@Road Documentation may be used, to the extent such infringement would not have
occurred but for use of the FleetASAP Software, the Hardware, or the @Road
Documentation in such method or process; (ii) any compliance with Hitachi
Software's specifications; (iii) use of other than a current unaltered release
of the FleetASAP Software, the Hardware, or the @Road Documentation; (iv) the
combination, operation or use of the FleetASAP Software, the Hardware, or the
@Road Documentation with non-@Road programs or data to the extent that such
infringement would not have occurred but for the combination, operation or use
of the FleetASAP Software, the Hardware, or the @Road Documentation with other
programs or data; or (v) modifications to the FleetASAP Software, the Hardware,
or the @Road Documentation made by a party other than @Road, to the extent such
infringement would not have occurred but for such modifications to the FleetASAP
Software, the Hardware, or the @Road Documentation.
(d) Sole and Exclusive Liability. THIS SECTION 7.1 SETS FORTH THE SOLE AND
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EXCLUSIVE LIABILITY OF @ROAD FOR INFRINGEMENT OF THIRD PARTY INTELLECTUAL
PROPERTY RIGHTS.
7.2 By Hitachi Software.
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(a) Indemnity. Hitachi Software will defend, at its expense, any action
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brought against @Road based upon a claim that the Hitachi Software
Documentation, as used in accordance with the terms and conditions of this
Agreement, directly infringe a U.S. or Japanese patent, copyright, or trade
secret, and Hitachi Software further agrees to pay all damages and costs finally
awarded against @Road attributable to such claim; provided that Hitachi Software
shall have sole control of any such action or settlement negotiations, and
further provided that @Road shall notify Hitachi Software promptly in writing of
such claim and shall give Hitachi Software all authority, information and
assistance reasonably necessary to settle or defend such claim. Hitachi
Software shall reimburse @Road for incidental out-of-pocket expenses incurred by
@Road in providing such assistance. Hitachi Software shall not be liable for
any costs or expenses incurred without its prior written authorization.
(b) Hitachi Software Options. If the Hitachi Software Documentation
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becomes, or in the opinion of Hitachi Software may become, the subject of a
claim of infringement of any United States or Japanese patent, trade secret, or
copyright, Hitachi Software may, at its option: (x) procure for @Road the right
to use Hitachi Software Documentation free of any liability; (y) replace or
modify the Hitachi Software Documentation, or portion thereof, to make it non-
infringing or (c) if any action is brought against Hitachi Software or @Road and
(x) and (y) of this sentence are not available to Hitachi Software on
commercially reasonable terms then Hitachi Software may terminate all licenses
related to the Hitachi Software Documentation, and refund the applicable
payments paid therefor by @Road, less an amount equal to thirty-four percent
(34%) for each year of use (adjusted pro rata for a partial year of use).
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(c) Exclusions from Indemnity. Hitachi Software assumes no liability
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hereunder for: (i) any method or process in which the Hitachi Software
Documentation may be used, to the extent such infringement would not have
occurred but for use of the Hitachi Software Documentation in such method or
process; (ii) any compliance with @Road specifications; (iii) the combination,
operation or use of the Hitachi Software Documentation with non-Hitachi Software
programs or data to the extent that such infringement would have not have
occurred but for the combination, operation or use of the Hitachi Software
Documentation with other programs or data; or (iv) modifications to the Hitachi
Software Documentation made by a party other than Hitachi Software, to the
extent such infringement would not have occurred but for such modifications to
the Hitachi Software Documentation.
(d) Sole and Exclusive Liability. THIS SECTION 7.2 SETS FORTH THE SOLE AND
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EXCLUSIVE LIABILITY OF HITACHI SOFTWARE FOR INFRINGEMENT OF THIRD PARTY
INTELLECTUAL PROPERTY RIGHTS.
8. Liability
Hitachi Software agrees that @Road's liability hereunder arising from this
Agreement shall in no event exceed the payments received by @Road pursuant to
this Agreement during the twelve (12) month period preceding the event giving
rise to such liability. @ROAD WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF
BUSINESS, INTERRUPTION OF BUSINESS, LOSS OF USE, OR LOSS OF DATA FOR COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FOR ANY CLAIM OR DEMAND AGAINST
HITACHI SOFTWARE BY ANY OTHER PARTY OR FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, UNDER OR
ARISING OUT OF THIS AGREEMENT, EVEN IF @ROAD HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. HITACHI SOFTWARE ACKNOWLEDGES AND AGREES THAT THE AMOUNTS
PAYABLE HEREUNDER BY HITACHI SOFTWARE ARE BASED IN PART UPON THESE LIMITATIONS,
AND THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
9. Termination
9.1 Term. The term of this Agreement and the license granted hereunder shall
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commence on the Effective Date and shall continue for a term of five (5) years,
unless earlier terminated in accordance with this Section 9 or extended as
mutually agreed upon by the parties in writing.
9.2 Termination for Default. Either party may, at its option, terminate this
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Agreement upon written notice to the other party if the other party materially
fails to comply with any of the terms and conditions of this Agreement and if
such default has not been cured within thirty (30) days after written notice to
the other party.
9.3 Termination for Insolvency. This Agreement may be terminated by either
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party, on notice, (a) if the other party becomes insolvent, (b) upon the
institution by the other party of insolvency, receivership or bankruptcy
proceedings or any other proceedings for the settlement of its debts, (c) upon
the institution of such proceedings against the other party, which are not
dismissed or otherwise resolved in such other party's favor within sixty (60)
days thereafter, (d) upon the other party's making a general assignment for the
benefit of creditors, or (e) upon the other party's dissolution or ceasing to
conduct business in the normal course.
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9.4 Surviving Terms. Sections 2, 4, 5, 6, 7, 8, 9.4, 9.5, 9.6, 10, 11
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(excluding 11.4), 12.1(c), 13.5, 24, 25, 26, and all payment obligations
incurred prior to termination of this Agreement, shall survive termination of
this Agreement. Upon the expiration of this Agreement, or if Hitachi Software
terminates this Agreement pursuant to Sections 9.2 or 9.3, the licenses granted
to Hitachi Software in Section 12.1 shall continue, provided that (a) Sections
12.1 (excluding Section 12.1(a)(ii)), 12.2, 13, and 21 shall, in addition to the
provisions specified above, survive the termination of this Agreement, and (b)
@Road will have the right to terminate all licenses to Hitachi Software
hereunder, as set forth in Section 9.2, in the event that Hitachi Software
breaches any of the surviving terms and conditions of this Agreement. If @Road
terminates this Agreement pursuant to Section 9.2 or 9.3, within thirty (30)
days after termination of this Agreement, Hitachi Software shall return to
@Road, at @Road's expense, and shall make no further use of, any property,
materials or other items of @Road, and shall certify in writing to @Road, that
the originals and all copies, in whole or in part, in any form, of the FleetASAP
Software or @Road Documentation or related materials in the possession of
Hitachi Software or its affiliates or agents have been destroyed or returned to
@Road.
9.5 Other Remedies. Nothing contained herein shall limit any other remedies
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that @Road may have for the default of Hitachi Software under this Agreement nor
relieve Hitachi Software of any of its obligations incurred prior to termination
of this Agreement. Nothing contained herein shall limit any other remedies that
Hitachi Software may have for the default of @Road under this Agreement nor
relieve @Road of any of its obligations incurred prior to termination of this
Agreement.
9.6 Liability. In the event of termination by either party in accordance
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with any of the provisions of this Agreement, neither party shall be liable to
the other, because of such termination, for compensation, reimbursement or
damages on account of the loss of prospective profits or anticipated sales or on
account of expenditures, inventory, investments, leases, commitments, or any
consequential damages in connection with the business or goodwill of either
party. Termination shall not, however, relieve either party of any obligations
incurred prior to termination, including without limitation, the obligation of
Hitachi Software or @Road to pay the other party all amounts which accrued
hereunder prior to such termination.
10. Dispute resolution
10.1 Arbitration. Any controversy, claim or dispute arising out of or relating
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to this Agreement or any breach thereof which cannot be settled amicably by the
parties shall be resolved by arbitration under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce (the "Rules") then
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prevailing. Arbitration shall be by a single arbitrator chosen by the parties,
provided that if the parties fail to agree and to appoint such a single
arbitrator within thirty (30) calendar days after a demand for arbitration, then
the arbitrator shall be chosen in accordance with the Rules. It is agreed that
all documentary submissions, presentations and proceedings shall be in the
English language. With the exception of monetary claims in excess of one
million dollars ($1,000,000), the decision of the arbitrator shall be final and
binding on the parties, and a judgment on any award may be entered in any court
of competent jurisdiction. The arbitration fee shall be borne equally by each
party unless otherwise awarded by the arbitration. If the decision involves the
resolution of a monetary claim in excess of one million dollars ($1,000,000) or
if there has been an error in law, the decision of the arbitrator may be
appealed by either party and determined by an action brought in a court of
competent jurisdiction.
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10.2 The parties agree that arbitration may be an inadequate remedy for all
breaches of this Agreement, particularly as it relates to intellectual property
and confidential and proprietary information. As such, the parties agree that
they each shall be entitled to equitable relief, including the injunction or
injunctions as may be required to prevent breaches of any of the provisions of
this Agreement and may specifically enforce such provisions by an action
instituted in any court of competent jurisdiction. In addition, the parties
further agree not to contest the availability of the other party seeking such
injunctive relief.
10.3 Governing law and jurisdiction.
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(a) All Arbitration proceedings will be held in San Francisco, U.S.A.
(b) This Agreement shall be enforced and interpreted under the laws of
California.
(c) The parties to this Agreement will ensure compliance with all
applicable U.S. and Japanese laws and regulations, including the U.S.
Foreign Corrupt Practices Act.
(d) For any instance not covered by the Rules, California law shall apply
without giving effect to principles of conflicts of laws.
(e) The parties consent to the exclusive jurisdiction and venue of the
State and Federal Courts of Santa Clara County, California, U.S.A.
11. Miscellaneous
11.1 Publicity. Any news releases, public announcements, advertisements or
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publicity related by either party concerning this Agreement, or any proposals,
or any resulting contracts or subcontracts to be carried out hereunder, will be
subject to prior approval of the other party upon reasonable notice, except:
that this Agreement and the terms thereof may be made known to the U.S. and
Japanese Governments, as required by law. Any such publicity shall give due
credit to the contribution of each party. Notwithstanding the foregoing, the
parties agree to jointly issue (a) one press release on the Effective Date of
this Agreement, in the form set forth on Exhibit D attached hereto, and (b)
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one press release on the date Hitachi Software first offers the Hitachi Software
FleetASAP service in Japan.
11.2 Employees. The employees of the parties shall obey all pertinent rules
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and regulations of the other party while on the premises of the other party.
Each party shall indemnify and save the other party harmless from and against
all claims for bodily injuries, including death or damage to property, except
those caused solely by the negligent act or omission of the other party or its
employees in pursuance of the objectives of this Agreement.
11.3 Export. Neither party shall export, directly or indirectly, any
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documentation, products, or technology without first obtaining all required
licenses and approvals from the appropriate government agencies.
11.4 Non-solicitation. It is expressly agreed that neither party, without the
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prior written consent of the other party, will directly or indirectly solicit,
hire, consult, or otherwise contract with any employee(s) of the other party who
are associated with the proposed efforts during the course of this Agreement.
This clause, however, shall not restrict in any way the right of either party to
solicit generally in the media for required personnel. Furthermore, this clause
does not restrict employees of either party from pursuing, on their own
initiative, employment opportunities with the other party.
11.5 Representatives. Each party will designate in writing one or more
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individuals within its own organization as its representative(s) responsible for
directing performance of such party's necessary functions, and for communicating
with the other party in connection with its obligations under this Agreement.
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11.6 Notice. All notices, certificates, invoices, acknowledgments and other
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reports hereunder shall be in writing and shall be deemed received when
transmitted by confirmed facsimile, or five (5) business days after being duly
mailed by overnight courier or registered letter to the other party at its
address as follows, or to such other address as either party may, by written
notice, designate to the other.
Hitachi Software Engineering Co., Ltd.
6-81 Onoe-cho, Naka-ku Yokohama 231-0015
Japan
Attn: General Manager, International Business Development
Fax: +81-45-681-4914
@Road, Inc. with a copy to:
47200 Bayside Parkway @Road, Inc.
Fremont, CA 94538 47200 Bayside Parkway
USA Fremont, CA 95134
Attn: Chief Technology Officer USA
Fax: 510.353-6028 Attn: General Counsel
11.7 Independent Contractors. The relationship of @Road and Hitachi Software
-----------------------
is that of independent contractors, and nothing contained in this Agreement
shall be construed to (a) give either party the power to direct or control the
day-to-day activities of the other, (b) constitute the parties as partners,
joint venturers, co-owners or otherwise as participants in a joint undertaking,
or (c) allow either party to create or assume any obligation on behalf of the
other party for any purpose whatsoever.
11.8 Customers and Subscribers. Hitachi Software shall ensure that its
-------------------------
customers and Subscribers comply with all of the terms and conditions of this
Agreement, and shall be liable to @Road in the event of any such noncompliance.
Hitachi Software shall include in all customer or Subscriber agreements or shall
otherwise deliver to each of its customers or Subscribers information
substantially similar to that contained in Sections 21, 24, 25 and 26 of this
Agreement.
11.9 Entire Agreement. This Agreement and its Exhibits contain all of the
----------------
agreements, representations and understandings of the parties hereto with
respect to the subject matter hereof, and supersede and replace any and all
previous understandings, commitments or agreements, oral or written.
11.10 Severability. If any part, term or provision of this Agreement shall be
------------
held void, illegal, unenforceable, or in conflict with any law of a federal,
state or local government having jurisdiction over this Agreement, the validity
of the remaining portions or provisions shall not be affected thereby.
Notwithstanding the provisions of the foregoing sentence, if such validity shall
change the basic intent of the parties, as set forth in this Agreement, the
rights, duties, and obligations of either party hereunder shall be subject to
good faith re-negotiation between the parties.
11.11 Assignment. Neither party shall assign any of its rights, obligations or
----------
privileges (by operation of law or otherwise) hereunder without the prior
written consent of the other party; provided, however, that either party shall
have the right to assign its rights, obligations and privileges hereunder to a
merger partner, successor in business or acquirer of all or substantially all of
such party's business or assets without obtaining consent from the other party
to such
10
<PAGE>
assignment. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and assigns
of the parties. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
this Agreement, except as expressly provided in this Agreement.
11.12 Amendment. This Agreement shall not be amended or modified, nor shall
---------
any waiver or any right hereunder be effective unless set forth in a document
executed by duly authorized representatives of both Hitachi Software and @Road.
11.13 Non-Waiver. The waiver of any particular breach or default, or any delay
----------
in exercising any rights, shall not constitute a waiver of any subsequent breach
or default.
11.14 Taxes. All payments or reimbursements under this Agreement and any
-----
instrument or agreement required hereunder shall be made without set-off or
counter claim and be free and clear and without deduction for any and all
present and future Taxes. Hitachi Software agrees to pay all Taxes to be paid
on payments or reimbursements under this Agreement directly to the appropriate
government authority. If Hitachi Software and/or @Road are legally prohibited
from complying with this Section 11.14, payments due to @Road under this
Agreement and any instrument or agreement required hereunder shall be increased
so that, after provisions for Taxes and all Taxes on such increase, amounts
received by @Road will be equal to the amounts payable under this Agreement, and
any instrument or agreement required hereunder, as if no Taxes were due on such
payments. Hitachi Software shall indemnify @Road for the full amount of Taxes
payable by @Road and any liabilities (including penalties, interest and
expenses) arising from such Taxes within thirty (30) days of any written demand
by @Road. Hitachi Software shall provide evidence that all applicable Taxes
have been paid to the appropriate taxing authority by delivering to @Road
receipts or notarized copies thereof within sixty (60) days after the due date
for such tax payments.
11.15 Force Majeure. Neither party will be responsible for any failure to
-------------
perform its obligations (other than payment obligations) under this Agreement
due to reasons beyond its reasonable control, including without limitation acts
of God, war, riot, embargoes, acts of civil or military authorities, fire,
floods or accidents.
11.16 English Language. This Agreement is in the English language only,
----------------
which language shall be controlling in all respects. No translation, if any, of
this Agreement into any other language shall be of any force or effect in the
interpretation of this Agreement or in determination of the interests of either
party hereto. Furthermore, the parties agree that all correspondence, notices,
orders, claims, suits and other communication between the parties hereto shall
be written or conducted in English.
11.17 United States Dollars. All references to "dollars", "U.S. $" or "$"
---------------------
shall mean United States Dollars.
11.18 Foreign Corrupt Practices Act. In conformity with the United States
-----------------------------
Foreign Corrupt Practices Act, Hitachi Software and its employees and agents
shall not directly or indirectly make an offer, payment, promise to pay, or
authorize payment, or offer a gift, promise to give, or authorize the giving of
anything of value for the purpose of influencing an act or decision of an
official of any government within the United States Government (including a
decision not to act) or inducing such a person to use his influence to affect
any such governmental act or decision in order to assist Hitachi Software in
obtaining, retaining or directing any such business.
11
<PAGE>
11.19 Escrow. Upon Hitachi Software's written request, @Road shall deposit
------
with Data Securities International, Inc. ("Escrow Agent") the source code of the
------------
FleetASAP Software ("Escrow Materials") pursuant to the terms of an escrow
----------------
agreement to be entered into among Hitachi Software, @Road, and the Escrow
Agent. Hitachi Software shall bear the cost of maintaining the escrow account.
(b) Release Procedure. Upon the occurrence of a Release Event, Hitachi
-----------------
Software will notify the Escrow Agent. The Escrow Materials will be released
for use by Hitachi Software, subject to the terms and conditions hereof, only
after notice of such Release Event from the Escrow Agent to @Road and @Road's
failure to declare in writing to the Escrow Agent within thirty (30) calendar
days that no Release Event has occurred. If @Road makes such written
declaration, then the issue of whether a Release Event has occurred and is
continuing shall be submitted to arbitration in Santa Clara County, California,
under the Commercial Arbitration Rules of the American Arbitration Association
by one (1) arbitrator appointed in accordance with said Rules. Judgment on the
award rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The costs of the arbitration, including administrative and
arbitrator's fees, shall be shared equally by the parties. Each party shall
bear the costs of its own attorneys' fees in connection with such arbitration.
(c) License. Subject to the terms and conditions of this Agreement, @Road
-------
hereby grants Hitachi Software a nonexclusive, non-transferable right and
license to use, modify, and reproduce the Escrow Materials solely in connection
with Hitachi Software's maintenance and support of the Hitachi Software
FleetASAP, which Hitachi Software may exercise at any time after the occurrence
and during the continuation of a Release Event. Upon the cessation of any
Release Event, all licenses granted pursuant to this Section 11.19(c) shall
terminate, unless and until triggered again pursuant to this Section 11.19, and
Hitachi Software shall promptly return all copies of the Escrow Materials, or
any portion thereof, to @Road, at Hitachi Software's sole expense.
11.20 Government Approvals. Hitachi Software shall obtain all approvals and
--------------------
make all filings (other than intellectual property filings and registrations)
required by the national and local governments within Japan with respect to the
performance of this Agreement.
11.21 Technical Managers. The parties have assigned their respective
------------------
employees below as technical managers pursuant to this Agreement to ensure
timely and effective communication of software and network issues. At a minimum,
such technical managers are the primary contacts under this Agreement and will
be available during their respective employer's business hours to receive and
act upon the other party's reasonable requests.
Hitachi Software Engineering Co., Ltd.
6-81 Onoe-cho, Naka-ku Yokohama 231-0015
Japan
Attn: Takatoshi Kodaira, General Manager, Geospatial Information Division
Tel: +81-45-681-2196
Fax: +81-45-681-2076
Email: tkodaira@ika.hitachi-sk.co.jp
@Road, Inc.
47200 Bayside Parkway
Fremont, CA 94538
USA
12
<PAGE>
Attn: Shirish Puranik, Vice President, Software Engineering
Tel: 510-870-1114
Fax: 510-353-6028
Email: spuranik@road-inc.com
11.22 Titles and Subtitles of this Agreement. The titles and
--------------------------------------
subtitles used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
13
<PAGE>
II. License Provisions
12. License Grants
12.1 By @Road.
--------
(a) Software and Documentation. Subject to the terms, conditions, and
--------------------------
restrictions of this Agreement, @Road hereby grants to Hitachi Software, under
@Road's Intellectual Property Rights, including without limitation, the @Road
Patents, a perpetual, nontransferable, royalty-bearing license in Japan, without
rights to sublicense, to (i) install, reproduce, and use the FleetASAP Software
and @Road Documentation solely as is necessary to offer a service materially
similar to FleetASAP in Japan, and (ii) modify the Source Code solely as is
necessary to translate the English portions of the FleetASAP service into
Japanese; provided, however, that such modifications shall not materially alter
the performance or functionality of the FleetASAP Software.
(i) Restrictions. Hitachi Software agrees that it shall not cause or
------------
permit the disassembly, decompilation or reverse engineering of the FleetASAP
Software or otherwise attempt to gain access to the source code of the Software
except as set forth in Section 12.1(a) above. Any copies of the @Road
Documentation or FleetASAP Software made by Hitachi Software hereunder shall
include @Road's copyright notice and any other proprietary notices that appear
on the original copies of such materials. Any copies of the FleetASAP Software
or @Road Documentation made by Hitachi Software are the exclusive property of
@Road. Hitachi Software shall comply with the Source Code restrictions set forth
on Exhibit E hereto.
---------
(ii) Exclusivity. Subject to Hitachi Software's attainment of the
-----------
minimum sales set forth in Section 16 below, and during the period of time which
begins on the Effective Date and ends on December 31, 2003 or upon the
termination of this Agreement, whichever occurs earlier, @Road will not license
to any third party its FleetASAP Software or @Road Documentation in order to
enable such party to offer a service using an iLM platform and which is
substantially similar to FleetASAP in Japan.
(b) Trademarks. Subject to the terms, conditions, and restrictions of this
----------
Agreement, @Road hereby grants to Hitachi Software a perpetual, nonexclusive,
nontransferable, royalty-free license in Japan, without rights to sublicense, to
use the @Road Trademarks solely as is necessary to fulfill Hitachi Software's
branding obligations set forth in Section 3 of this Agreement. @Road grants to
Hitachi Software the royalty-free right to localize, modify, abridge, enhance
and distribute any existing @Road sales, promotion, marketing, installation or
customer education documents or materials, provided, however, that Hitachi
Software shall obtain the prior written consent from @Road for any such use.
(i) Restrictions. Hitachi Software shall comply with the usage guidelines
------------
stipulated on Exhibit B, and upon request by @Road, shall furnish @Road with
---------
samples of Hitachi Software's usage of the @Road Trademarks. Hitachi Software
and @Road may, from time to time, discuss and agree to modify Exhibit B to
---------
accommodate new @Road trademarks and usage guidelines. Hitachi Software shall
not challenge @Road's ownership of the @Road Trademarks or use or adopt any
trademarks which might be confusingly similar to such marks. Hitachi Software's
use of such @Road Trademarks shall inure to the benefit of @Road.
(c) Reservation of Rights. @Road reserves all rights not otherwise expressly
---------------------
granted in this Section 12.1.
12.2 By Hitachi Software.
-------------------
14
<PAGE>
(a) Hitachi Software Proprietary Rights. Subject to the terms, conditions,
-----------------------------------
and restrictions of this Agreement, Hitachi Software hereby grants to @Road,
under the Hitachi Software Proprietary Rights, a perpetual, royalty-bearing
license to use, make, have made, offer for sale, and sell Mobile Resource
Management services and products in North America.
(b) Trademarks. Subject to the terms, conditions, and restrictions of this
----------
Agreement, Hitachi Software hereby grants to @Road a perpetual, nonexclusive,
royalty-free license, without rights to sublicense, to use the Hitachi Software
Trademarks in connection with Section 3 of this Agreement. Hitachi Software
grants to @Road the royalty-free right to localize, modify, abridge, enhance and
distribute any existing Hitachi Software sales, promotion, marketing,
installation or customer education documents or materials, provided, however,
that @Road shall obtain the prior written consent from Hitachi Software for any
such use.
(i) Restrictions. @Road shall comply with the usage guidelines
------------
stipulated on Exhibit B, and upon request by Hitachi Software, shall furnish
---------
Hitachi Software with samples of @Road's usage of such Hitachi Software
Trademarks. Hitachi Software and @Road may, from time to time, discuss and agree
to modify Exhibit B to accommodate new Hitachi Software trademarks and usage
---------
guidelines. @Road will not challenge Hitachi Software's ownership of such
Hitachi Software Trademarks or use or adopt any trademarks which might be
confusingly similar to such marks. @Road's use of such Hitachi Software
Trademarks shall inure to the benefit of Hitachi Software.
(c) Reservation of Rights. Hitachi Software reserves all rights not
---------------------
otherwise expressly granted in this Section 12.2.
12.3 Right of First Refusal. In the event that (a) @Road offers additional
----------------------
services or products to commercial customers in the United States in conjunction
with FleetASAP based on the iLM platform or (b) Hitachi Software offers
additional services to commercial customers in Japan in connection with Mobile
Resource Management, such offering party ("Offeror") shall provide written
-------
notice of such services or products to the other party ("Offeree") within thirty
-------
(30) days after the date the Offeror makes such products or services
commercially available to five (5) or more customers ("Notice"). The Offeree
------
shall have ten (10) business days (which time period may be extended by mutual
written agreement) following its receipt of the Notice ("Response Period") to
---------------
inform the Offeror of its desire to negotiate an agreement in connection with
such products and/or services. If the Offeror fails to receive a response to
its Notice from Offeree within the Response Period, the Offeror's obligations
under this Section with respect to such product and/or service shall cease. In
the event Offeror receives a response from the Offeree within the Response
Period indicating Offeree's desire to negotiate an agreement with Offeror in
connection with Offeror's products and/or services, Offeror agrees to negotiate
such an agreement in good faith for a period of thirty (30) business days
following the Offeror's receipt of the Offeree's response. At the end of such
thirty (30) day period, if the Offeror and Offeree do not mutually agree to the
terms of an agreement regarding the Offeror's products and/or services, then
Offeror's obligation to negotiate such an agreement with Offeree with respect to
such product and/or service shall terminate.
13. Royalties and Payment
13.1 Reports. Hitachi Software will submit a written quarterly report (via
-------
email to crice-murphy@road-inc.com, unless otherwise requested in writing by
@Road) to @Road within ten (10) calendar days after the end of each calendar
quarter, provided however such fourth calendar quarter report shall be provided
to @Road within ten(10) business days after the end of such quarter. Such
quarterly report shall include: (a) the names and locations of the servers
running Hitachi Software FleetASAP, (b) the name of each customer with Class A
Subscribers or Class B Subscribers, (c) the number of Class A Subscribers or
Class B Subscribers pertaining to such
15
<PAGE>
customer, (d) the number of iLMs sold, leased or used during such quarter, (e)
the number of iDTs sold, leased or used during such quarter, (f) the dates of
sale, lease or first use of all iLMs and iDTs during such quarter and (g) such
other information as @Road may reasonably request. Upon receipt of a quarterly
report, @Road shall deliver to Hitachi Software an invoice for royalties
pertaining to such quarterly report. Hitachi Software shall pay such invoices
net thirty (30) days from the date of the invoice; provided, however, that no
such payment shall be due until the date that the Prepaid Royalties are fully
credited against all such royalties which accrue hereunder.
13.2 Royalties. Hitachi Software shall pay @Road [*] in prepaid royalties
(as more fully described in Exhibit J attached hereto) within eighty (80) days
---------
after the Effective Date. . ("Prepaid Royalties"). The Prepaid Royalties are
-----------------
non-refundable, but are fully creditable against royalties which Hitachi
Software owes @Road in accordance with Section 13.3 below.
13.3 Royalty Schedule.
----------------
(a) Class A Subscribers. Hitachi Software will pay @Road a royalty of [*]
-------------------
per month (pro rated for each partial month) per Class A
Subscriber as more fully described in Exhibit J attached hereto.
---------
(b) Class B Subscribers. Hitachi Software will pay @Road a royalty of [*]
-------------------
per month (pro rated for each partial month) per Class B
Subscriber as more fully described in Exhibit J attached hereto. Hitachi
---------
Software shall transition Class B Subscribers to Class A Subscribers as soon as
is commercially feasible.
13.4 Reserved.
--------
13.5 Audit Rights. Hitachi Software shall maintain full and complete
------------
records regarding Class A Subscribers, Class B Subscribers, and the provision of
Hitachi Software FleetASAP. Authorized representatives of @Road who are
collectively familiar with FleetASAP and Japanese accounting principles and law
shall be entitled to audit such records and access Hitachi Software servers upon
thirty (30) days written notice, provided, that @Road may conduct no more than
one such audit in any six (6) month period. Any such audit shall be performed
at @Road's expense during normal business hours; provided, that the cost of such
audit (in addition to the full amount of any underpayments) shall be promptly
paid by Hitachi Software if such audit reveals an underpayment by Hitachi
Software of more than five percent (5%) of the amounts payable by Hitachi
Software to @Road in any six (6) month period.
14. Delivery
Subject to payment by Hitachi Software of @Road's technical service fees
specified in Section 15.2 below, @Road shall deliver the FleetASAP Software and
@Road Documentation to Hitachi Software in accordance with the plan and schedule
set forth on Exhibit F hereto. Hitachi Software will deliver the Hitachi
---------
Software Documentation to @Road in accordance with the plan and schedule set
forth on Exhibit F hereto.
---------
15. Support
15.1 Support. @Road will provide support to Hitachi Software as set forth on
-------
Exhibit G hereto.
-----------
* CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS PAGE HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
16
<PAGE>
15.2 Payments. Hitachi Software shall pay @Road for all support services
--------
@Road provides to Hitachi Software pursuant to Sections 14 and 15.1 above at the
rate of [*] per person per hour until the earlier to occur of (a) the first
annual anniversary of the Effective Date, or (b) the provision by @Road of [*]
of support services under this Agreement. Thereafter, all such support shall be
subject to payment by Hitachi Software of @Road's then-current standard support
fees. In addition, Hitachi Software will pay all travel expenses (including
transportation, meals, and lodging) which @Road reasonably incurs under this
Agreement. @Road shall invoice Hitachi Software for all such support and
expenses at the end of each month, and Hitachi Software shall pay @Road the full
amount of such invoice within thirty (30) days after the date of such invoice.
16. Minimum Sales
Hitachi Software will use its best efforts to obtain and maintain Subscribers in
accordance with the schedule set forth below. If, at the end of any period
specified in the table below, Hitachi Software has less than the number of
Subscribers specified for such period in the table below, all exclusivity
obligations of @Road pursuant to Section 12.1(a)(ii) above shall automatically
terminate, unless otherwise agreed upon by the parties in writing.
Total Number of Subscribers
Period at End of Period
--------------------------------------------------------------------------------------
Effective Date - 06/30/01 [*] Subscribers
--------------------------------------------------------------------------------------
07/01/01 - 09/30/01 [*] Subscribers
--------------------------------------------------------------------------------------
10/01/01 - 12/31/01 [*] Subscribers
--------------------------------------------------------------------------------------
01/01/02 - 03/31/02 [*] Subscribers
--------------------------------------------------------------------------------------
04/01/02 - 06/30/02 [*] Subscribers
--------------------------------------------------------------------------------------
07/01/02 - 09/30/02 [*] Subscribers
--------------------------------------------------------------------------------------
10/01/02 - 12/31/02 [*] Subscribers
--------------------------------------------------------------------------------------
01/01/03 - 03/31/03 [*] Subscribers
--------------------------------------------------------------------------------------
04/01/03 - 06/30/03 [*] Subscribers
--------------------------------------------------------------------------------------
07/01/03 - 09/30/03 [*] Subscribers
--------------------------------------------------------------------------------------
10/01/03 - 12/31/03 [*] Subscribers
--------------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS PAGE HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
17
<PAGE>
III. Purchase Provisions
17. General
On or before the fifth (5th) day of each calendar month during the term of this
Agreement, Hitachi Software shall deliver to @Road (a) a written twelve (12)
month non-binding rolling forecast of Hitachi Software's good faith estimate of
its purchase quantities of Hardware for delivery during the twelve (12) month
period following the then-current month (the "Rolling Forecast") and (b) a
----------------
written binding purchase order for Hardware for delivery ninety (90) days from
the date of @Road's receipt of the purchase order.
Hitachi Software may also initiate purchases of Hardware under this Agreement by
submitting written purchase orders to @Road with a lead time of at least thirty
(30) days; provided however that no such purchase order shall be binding upon
@Road until accepted by @Road in writing. All purchase orders shall state unit
quantities, unit descriptions and shipping instructions. @Road reserves the
right to reject purchase orders in whole or in part if the quantities specified
in the purchase orders from Hitachi Software exceed the Rolling Forecast. In
the event that @Road is unable to fill an accepted purchase order in accordance
with the schedule set forth therein, @Road shall allocate its output of Hardware
among its customers in a manner that is reasonable in light of the prior
purchase order levels of such customers. This Agreement shall govern all
purchase orders placed by Hitachi Software for units of the Hardware. No terms
on purchase orders, invoices or like documents produced by Hitachi Software
shall alter or add to the terms of this Agreement.
18. Prices, Taxes, Payment
Hitachi Software will have the right to purchase Hardware from @Road at the
prices set forth on Exhibit H hereto. Terms of payment are net thirty (30)
---------
days from date of @Road's invoice. The amount of credit may be changed or
withdrawn completely by @Road at anytime. On any order for which credit is not
extended by @Road, shipment or delivery shall require, at @Road's election, cash
with order (in whole or part), or C.O.D. or sight draft attached to the bill of
lading or other shipping documents, and all costs of collection shall be paid by
Hitachi Software.
19. Most Favored Customer Pricing
@Road represents and warrants that the prices for the Hardware set forth on
Exhibit H hereto shall be as favorable as the prices @Road offers to customers,
---------
sublicensees and distributors similarly situated to Hitachi Software, for such
Hardware under similar terms and conditions, including without limitation,
volumes and territory.
20. Installation
Hitachi Software shall be solely responsible for the installation of all
Hardware hereunder.
21. Software License
@Road hereby grants only to Hitachi Software and Hitachi Software customers who
subscribe to Hitachi Software FleetASAP a non-exclusive right and license to use
any software contained in or embedded in the Hardware (collectively, the
"Software"), solely in conjunction with such Hardware, in object code form only.
---------
Hitachi Software may only transfer such Software together
18
<PAGE>
with, and as incorporated in, the Hardware with which it was originally
delivered. Hitachi Software receives no title or ownership rights to such
Software. Except for the license granted in this Section, all right, title and
interest in the Software shall remain the exclusive property of @Road or its
licensors. This Agreement does not give Hitachi Software or its customers any
right to reproduce the Software or any related documentation, and Hitachi
Software agrees that it shall not decompile, disassemble, compile or reverse
engineer the Software or otherwise attempt to gain access to the Software source
code.
22. Title and Delivery
All Hardware shall be shipped by @Road in conformance with @Road's standard
shipping procedures. @Road shall provide Hardware packaging sufficiently
durable for export shipment, provided that Hitachi Software shall make
commercially reasonable efforts to request such export shipments in quantities
of 450 unit (iLM or iDT) palates. Shipment shall be F.O.B. @Road's facility
("Delivery Point"). Risk of loss shall pass to Hitachi Software at the F.O.B.
--------------
location. All customs duties, freight, insurance and other shipping expenses
from the Delivery Point, as well as any other special packing expenses requested
by Hitachi Software, shall be borne by Hitachi Software. @ROAD SHALL NOT BE
LIABLE FOR ANY DELAY IN TRANSPORTATION OF THE HARDWARE. In the event of any
default by Hitachi Software, @Road may decline to make further shipments without
in any way affecting its rights under this Agreement.
23. Acceptance
Hitachi Software shall have thirty (30) days after delivery to inspect and to
test each Hardware unit shipped by @Road to Hitachi Software. During such thirty
(30) day period, if Hitachi Software determines, either in the United States or
Japan, that any such Hardware fails to meet the Specifications, Hitachi Software
may reject such Hardware by notifying @Road in writing of such rejection. Any
Hardware not rejected by Hitachi Software within the thirty (30) day acceptance
period under this Section shall be deemed accepted by Hitachi Software.
Acceptance test procedures are further defined in Exhibit K.
24. Hitachi Software Acknowledgements
Hitachi Software acknowledges that (a) data collected by the Hardware while out
of coverage or without calling connectivity is limited to Hardware memory
capacity described in the Specifications ; (b) data collected by the Hardware is
not provided in real time and delays in receipt of data are normal; (c) Hardware
antennae should have an unobstructed view of the sky; (d) the Hardware may not
operate in enclosed spaces, in buildings, between tall buildings, underground or
in urban or natural canyons; (e) Hardware will go into a "sleep" mode after
approximately fourteen hours of non-use and Hardware in sleep mode will not
operate until the vehicle in which the Hardware is installed is subsequently
started and moved; and (f) although portions of the Hardware are encrypted,
content conveyed by the Hardware is capable of being intercepted, without
knowledge of or permission from @Road, by third parties.
25. Coverage and Data Transmission
The Hardware is dependent on the coverage and calling areas of cellular networks
owned and operated by third parties. Coverage and calling areas are approximate
and do not cover significant portions of the United States or Japan. Actual
coverage and operation of the Hardware depends on
19
<PAGE>
system availability and capacity, system and equipment upgrades, repairs,
maintenance, modifications and relocation, equipment, terrain, signal strength,
structural conditions, weather and atmospheric conditions, governmental
regulations, suspected fraudulent activities, acts of God and other conditions
beyond @Road's reasonable control. @Road will not be responsible for limits in
coverage or performance degradation due to any such conditions. Hitachi Software
acknowledges that coverage and calling areas may be interrupted, halted, or
curtailed or the quality of the transmission may be diminished at any time. The
Hardware and the FleetASAP service are dependent upon the availability of the
Internet, which is owned and operated by and accessed through third parties.
26. High Risk Activities
The Hardware and any modifications, alterations, additions or changes to the
Hardware, are not fault tolerant and are not designed, manufactured or intended
for use in life support, emergency, mission critical or other ultra-hazardous
activities ("High Risk Activities"). @Road specifically disclaims any express
--------------------
or implied warranty of fitness for such High Risk Activities. Hitachi Software
represents and warrants that it will not use, or permit to be used, the Hardware
for such High Risk Activities, and Hitachi Software agrees to fully indemnify
and hold harmless @Road for any damages or other losses resulting from such use.
[SIGNATURE PAGE FOLLOWS]
20
<PAGE>
The parties have executed this Agreement as of the respective date set forth
below.
HITACHI SOFTWARE @ROAD, INC.
ENGINEERING CO., LTD.
By: /s/ Takatoshi Kodaira By: /s/ Krish Panu
------------------------------------- ----------------------
Name: Takatoshi Kodaira Name: Krish Panu
Title: General Manager Title: President
Geospatial Information Division
Date: July 21, 2000 Date: July 21, 2000
---------------------------- ---------------------
[Signature Page to Strategic Agreement]
<PAGE>
EXHIBIT A
@ROAD TECHNOLOGY
The documents include the following but are not limited to the following.
Capitalized terms used but not defined herein have the meanings set forth in the
Agreement.
1. Hardware.
--------
(a) iLM 2000 - an Internet Location Manager that provides vehicle location,
--------
speed, and direction of travel. To be delivered within thirty (30) days of the
Effective Date.
[DIAGRAM APPEARS HERE]
i. Engineering Specification.
--------------------------
ii. Firmware development environment.
---------------------------------
iii. Test and maintenance programs.
------------------------------
iv. Firmware module description.
----------------------------
v. Firmware module interface control documents.
--------------------------------------------
vi. Source Code.
------------
(b) iDT2500 - An Internet Data Terminal that, when used in conjunction with
-------
the iLM, provides two-way text messaging between the dispatcher and an
automotive vehicle via the Internet. To be delivered within thirty (30) days of
the Effective Date.
i. Programmer's Manual.
--------------------
ii. Firmware development environment.
---------------------------------
<PAGE>
iii. Test and maintenance program.
-----------------------------
iv. Firmware module description.
----------------------------
v. Firmware module interface control documents.
--------------------------------------------
vi. Source Code.
------------
2. FleetASAP Software - To be delivered within thirty (30) days of the
------------------
Effective Date.
(a) Server.
------
1. Software architecture overview.
------------------------------
2. GIS web-server design specification.
-----------------------------------
3. Notes on internationalization.
-----------------------------
4. Software module description.
5. Software module interface control documents.
6. Source Code.
7. Test and maintenance program.
(b) Network infrastructure.
----------------------
1. Network and processor diagram.
-----------------------------
2. Server installation instructions.
--------------------------------
3. Software module description.
4. Software module interface control documents.
5. Source Code.
6. Test and maintenance program.
3. FleetASAP Service/Operation - To be delivered within thirty (30) days of the
---------------------------
Effective Date.
a. Training CD.
-----------
b. Installation video.
------------------
2
<PAGE>
EXHIBIT B
TRADEMARKS
1. @Road Trademarks and Usage Policy.
---------------------------------
2. Hitachi Software Trademarks and Usage Policy.
--------------------------------------------
<PAGE>
[CORPORATE IDENTITY GUIDELINES]
[LOGO OF @ROAD]
<PAGE>
Welcome to @Road(TM)! It's important for every company to build and protect its
identity through correct and consistent usage of corporate and product names,
logos and style preferences. This handbook will help guide you whenever you have
occasion to include references to @Road or its products in print or electronic
media, or in branding equipment.
If you have any questions regarding these guidelines, or to obtain copies of the
@Road and FleetASAP logos in digital or traditional format, please contact:
Bridgette Birdie, Marketing Communications Manager
@Road, Inc.
47370 Fremont Blvd.
Fremont, Ca 94538
Tel: 510-668-1638, ext. 360
Fax: 510-353-6021
e-mail: bbirdie@atroad.com
[@ROAD CORPORATE, SERVICE AND EQUIPMENT NAME USAGE]
@Road Corporate Name Use
.Format: The @Road name must always appear as "@Road." Please do not use
"@road," "atroad," "Atroad," "AtRoad," or any other configuration.
.Trademarking: Use a (TM) symbol (i.e.,@Road(TM)) in the first reference to
@Road in a document, (The(TM) symbol is created by pressing the "OPTION"
and "2" keys on a Macintosh, or by entering "(tm)" on a PC or a Mac.) In
additional references in the same document, the (TM) is not necessary.
.Headline and Copy Use: Whenever the @Road name is used as part of a
headline or within copy, use the same typeface as the rest of the material.
Do not use the @Road logo within a headline or in copy.
.Possessive Construction: Avoid using the @Road name in the possessive,
(i.e., "@Road's Web site...") whenever possible. The preferred usage is
"the @Road Web site..."
.Third-party Vendor Use: Please reference your relationship to @Road as
"Vendor X Fleet Management System Name, powered by @Road."
2
<PAGE>
FleetASAP Service Name Use
. Service Name: FleetASAP is the name of the fleet management service offered
by @Road. Please do not refer to the service as "@Road service," or "@Road
fleet management service." Acceptable references using both the @Road and the
FleetASAP names include:
. FleetASAP, powered by @Road
. FleetASAP from @Road
. The @Road fleet management service, FleetASAP
. FleetASAP, the fleet management service offered by @Road
. Format: The "ASAP" within the FleetASAP name is always italicized. In
italicized copy, the entire name should be italicized (i.e., the FleetASAP
software...)
. Software Marking: Use an (SM) symbol (i.e., FleetASAP(SM)) in the first
reference to FleetASAP in a document. The (SM) symbol is created by typing
"SM," then setting it as 60% size of the copy size (e.g., in 12-point copy,
the (SM) would be set at 7.2 points--round down if your program cannot set
type in less than whole numbers). In additional references in the same
document, the (SM) is not necessary.
. Headline and Copy Use: Whenever the FleetASAP name is used as part of a
headline or within copy, use the same typeface as the rest of the material.
Do not use the FleetASAP logo within a headline or in copy, but do italicize
the "ASAP."
. Possessive Construction: Avoid using the FleetASAP name in the possessive,
(i.e., FleetASAP's maps...") whenever possible. The preferred usage is "the
FleetASAP maps..."
. Third-party Vendor Use: Please reference your relationship to the FleetASAP
service as follows:
. Preferred usage: Vendor X sells FleetASAP(SM), powered by @Road.
. Second preference: Vendor X Fleet Management System Name, powered by
@Road.
Hardware/Equipment Name Use
. Format: Currently available hardware should be referred to as follows:
. ilM1000 internet Location Modem (lowercase italicized i)
. ilM2000 internet Location Modem (lowercase italicized i)
. iDT2000 internet Data Terminal (lowercase italicized i)
. In italicized copy, the entire name should be italicized (i.e., the
iLM1000...)
3
<PAGE>
Corporate and Product Positioning/Copyright Statement
Please include the following corporate tag and applicable copyright information
at the end of printed or electronic materials that reference @Road and/or
FleetASAP.
. @Road only: @Road is the first Internet information services company to
deliver location-specific e-commerce solutions to the mobile workforce and
the communities they serve. For more information on @Road, please call us
today at 1-877-4ATROAD, or visit our Web site at www.atroad.com.
. @Road and FleetASAP: @Road is the first Internet information services
company to deliver location-specific e-commerce solutions to the mobile
workforce and the communities they serve. For more information on
FleetASAP, powered by @Road, please call us today at 1-877-4ATROAD, or
visit our Web site at www.atroad.com to see a demonstration.
. Copyright: (use only those elements referenced in your materials): @Road,
the @Road logo, FleetASAP, iLM1000, iLM2000 and iDT2000 are trademarks
and/or service marks of @Road, Inc.
@ROAD CORPORATE AND SERVICE LOGO USAGE
PRINT/ELECTRONIC MEDIA APPLICATIONS
-----------------------------------
@Road Logo Use
. Configurations: The @Road logo is available in several configurations
designed to meet many needs (see page 8 for samples):
. three Pantone (PMS) colors (PMS 355 green, PMS 109 yellow, and black)
. four-color process
. solid black
. solid white
. Web site element: The Web site address is a critical element of the @Road
logo and is always included, with the exception of use on equipment. Please
do not delete the Web site address from the logo without specific
permission from @Road.
. Spacing: The @Road logo must be positioned with adequate space to
distinguish it from headlines, copy, other company logos, etc. (see Logo
Spacing on page 7).
. Using the logo in color: When printing in color, the preferred usage is
three PMS colors (PMS 355 green, PMS 109 yellow, and black). The second
4
<PAGE>
preference is the four-color process mix of these colors (see Process Mix on
page 7).
. Using the logo in reverse: When printing on a dark background, the logo must
reverse out in white only.
. Using two colors without black: When printing in one or two colors without
using black, please consult @Road before printing. Depending on the colors
used, we may suggest an alternate to using the logo, such as using the @Road
name in a text treatment.
FleetASAP Logo Use
. Configurations: The FleetASAP logo is available in several configurations
designed to meet many needs (see page 8 for samples):
. one Pantone (PMS) color (PMS 109 yellow)
. two PMS colors (PMS 109 yellow with solid black shadow)
. four-color process (with or without black shadow)
. solid black
. solid white
. Spacing: The FleetASAP logo must be positioned with adequate space to
distinguish it from headlines, copy, other company logos, etc. (see Logo
Spacing on page 7).
. Using the logo in color: When printing in color, the preferred usage in one
(PMS 109 yellow) or two colors (PMS 109 yellow and black). The second
preference is four-color process mix of these colors (see Process Mixes on
page 7). The choice of a one-or two-color logo depends on the background on
which it will appear: A light background requires the logo with black
shadow, a dark background does not. Please contact @Road if you need help in
selecting the correct FleetASAP logo for your project.
. Using the logo in reverse: When printing on a dark background, the logo must
reverse out. Preferred use is PMS 109 yellow, the second preference is white.
. Using two colors without black: When printing in one or two colors without
using black, please consult @Road before printing. Depending on the colors
used, we may suggest an alternate to using the logo, such as using the
FleetASAP name in a text treatment.
The @Road and FleetASAP logos are available in digital form as .eps or .ai
files, and as traditional camera-ready stats. To order logos or request a
different format, please contact @Road at 510-668-1638, ext. 360.
5
<PAGE>
EQUIPMENT APPLICATIONS
----------------------
@Road brands its own equipment with the @Road and FleetASAP logos.
Third-party vendors should use the following guidelines when including the
@Road logo on their equipment.
. Use the logo which includes the phrase "powered by" (see samples below).
. The @Road logo does not include the Web address when used on
equipment.
. The @Road logo must appear in white only on black components.
. The @Road logo must be positioned with adequate space to distinguish it
from third-party-vendor logos, service marks, etc. (see Logo Spacing on page
7).
. The preferred treatment is to use the vertical logo shown below:
powered by
[@ROAD LOGO APPEARS HERE]
If space doesn't allow the use of the vertical logo, please use the horizontal
logo shown below:
powered by [@ROAD LOGO APPEARS HERE]
. The @Road logo must appear prominently on the iLM1000 or iLM2000
internet Location Modem and the iDT2000 internet Data Terminal (e.g., the
third-party-vendor logo appears on the front, lower left; the "powered by
@Road" logo appears on the top, flush right).
. The @Road logo must be positioned on the iDT2000 so that, when installed, the
logo is visible to the driver.
The @Road logos are available in digital form as .eps or .ai files, and as
traditional camera-ready stats. To order logos or request a different format,
please contact @Road at 510-668-1638, ext. 360.
6
<PAGE>
ADDITIONAL INFORMATION ON USING @ROAD AND FLEETASAP LOGOS
-------------------------------------------------
Custom Typography
Occasionally, the use of the @Road and/or FleetASAP logos may not be
appropriate. In these cases, we may recommend using a custom type treatment for
the company or FleetASAP name. For help in determining what is appropriate for
your project, please contact @Road at 510-668-1638, ext. 360.
Logo spacing
The amount of space surrounding the @Road and/or FleetASAP logos is equal to
one-half the distance of the vertical measurement of the logo.
[DESCRIPTION OF @ROAD LOGO APPEARS HERE]
[DESCRIPTION OF FLEETASAP LOGO APPEARS HERE]
Logo Colors
. @Road logo: PMS 355 green, PMS 109 yellow, black
. FleetASAP logo: PMS 109 yellow, black
Process Mixes of Logo PMS Colors
. PMS 355 green: . PMS 109 yellow:
Cyan: 100 Cyan: 0
Magenta: 0 Magenta: 8.5
Yellow: 91 Yellow: 94
Black: 6 Black: 0
7
<PAGE>
@ROAD AND FLEETASAP LOGO SAMPLES
PMS OR FOUR-COLOR PROCESS COLOR SAMPLES (in grayscale)
PMS 355 green (@Road script) FleetASAP
PMS 109 yellow (name and (SM) symbol)
@Road
www.atroad.com FleetASAP(SM)
black (@Road script PMS 109 yellow PMS 109 yellow
shadow, road, Web (center line of road) (name) black
address, (TM) symbol) (shadow and (SM) symbol)
. Process mix of PMS 355 green: . Process mix of PMS 109 yellow:
Cyan: 100 Cyan: 0
Magenta: 0 Magenta: 8.5
Yellow: 91 Yellow: 94
Black: 6 Black: 0
SOLID BLACK AND REVERSE SAMPLES
@Road FleetASAP(TM)
www.atroad.com
powered by FleetASAP
@Road
www.atroad.com
powered by @Road @Road
www.atroad.com www.atroad.com
___________________________________________________________________________________________
@Road is the first Internet information services company to deliver
location-specific e-commerce solutions to the mobile work force and the
communities they serve. For more information on FleetASAP, powered by @Road,
please call us today at 1-877-4ATROAD, or visit our Web site at www.atroad.com
to see a demonstration.
1999 @Road, Inc. @Road, the @Road logo, FleetASAP, iLM1000, iLM2000 and iDT2000
are trademarks and/or service marks of @Road, Inc.
8
<PAGE>
EXHIBIT C
SUBSCRIBERS
The following describes the @Road Hardware and FleetASAP services contemplated
in the Agreement and identifies the @Road Hardware and services applicable to
each class of Subscriber. A "Class A Subscriber" is an owner, lessee or user of
any Hardware (or functional equivalent) or Hitachi Software FleetASAP services
listed as available in the column "Available to Class A Subscribers" below. A
"Class B Subscriber" is an owner, lessee or user of any Hardware (or functional
equivalent) or Hitachi Software FleetASAP services listed as available in the
column "Available to Class B Subscribers" below. Each of a Hitachi Software
FleetASAP customer's vehicles (or other device) equipped with an iLM or its
functional equivalent is a Subscriber; as a result, a Hitachi Software FleetASAP
customer will often have many Subscribers. The parties agree that only taxi
vehicles may be Hitachi Software FleetASAP Class B Subscribers.
Available to Class A Available to Class B
FleetASAP Hardware Subscribers Subscribers
---------------------------------------------------------------------------------------------------
ILM 2000 Yes Yes
---------------------------------------------------------------------------------------------------
IDT 2500 Yes No
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
FleetASAP Services
---------------------------------------------------------------------------------------------------
Vehicle Status (including ping Yes No
functionality)
---------------------------------------------------------------------------------------------------
Map ViewPLUS Yes No
---------------------------------------------------------------------------------------------------
Standard two-way text messaging Yes No
---------------------------------------------------------------------------------------------------
Administration Yes No
---------------------------------------------------------------------------------------------------
Report: Vehicle Activity Detail Yes Yes
---------------------------------------------------------------------------------------------------
Report: Vehicle Activity Summary Yes Yes
---------------------------------------------------------------------------------------------------
Report: Stop Yes Yes
---------------------------------------------------------------------------------------------------
Report: Message audit Yes No
---------------------------------------------------------------------------------------------------
<PAGE>
EXHIBIT D
PRESS RELEASE
<PAGE>
@Road(SM) and Hitachi Software Engineering Sign Strategic Partnership to Provide
LocationSmart(TM) Wireless Internet Services in Japan.
Hitachi Software Engineering, the GIS company in Hitachi Group, Joins Existing
Investors to Fund Internet Information Services Company
Fremont, Calif. and Yokohama, Japan - July ___, 2000 - @Road, Inc., an Internet
information services company that provides location-enhanced wireless Internet
solutions for mobile commerce, and Hitachi Software Engineering Co., Ltd., the
GIS company in Hitachi, , today announced that they have signed a strategic
partnership agreement to provide @Road's patented LocationSmart(TM) wireless
Internet services in Japan. In connection with this strategic partnership
Hitachi Software made an equity investment in @Road of an undisclosed amount.
Under the agreement, Hitachi Software Engineering becomes the first application
service provider of @Road's FleetASAPSM vehicle management service in Japan. The
service is based on @Road's patented LocationSmart technology that integrates
wireless, positioning and XML mobile content technologies with the Internet. In
Japan, the service will use the NTT DoCoMo wireless data network.
"@Road's FleetASAP service provides an end-to-end solution that we believe gives
fleet managers and mobile professionals the ability to effectively manage
logistics and communications," said Satoshi Sakashita, deputy general manager,
international business development division, Hitachi Software Engineering Co.,
Ltd.
"We are pleased to have formed this strategic alliance with Hitachi Software. We
believe that our technology and intellectual property, combined with Hitachi
Software's presence in Japan, will open the door to new location-enhanced
services and mobile commerce opportunities for businesses and consumers in
Japan," said Krish Panu, @Road chairman and CEO. "Hitachi Software's investment
will be used to help @Road further expand its international service offerings,
including location-relevant wireless content delivery, business intelligence and
e-commerce exchanges for mobile professionals and consumers on the move."
About @Road
Based in Fremont, CA, @Road, Inc. is a leading Internet information services
company that provides location-enhanced wireless Internet solutions for mobile
commerce. Its patented LocationSmart technology platform combines wireless,
positioning and XML technologies with the Internet into a fully integrated
network supporting the delivery of location-enhanced wireless Internet services
for businesses, mobile professionals and consumers. @Road's headquarters are
located in Fremont, CA.
About Hitachi Software Engineering
Hitachi Software Engineering Co., Ltd., the GIS company in Hitachi is also a
leading system integrator for governmental authorities, financial institutions,
insurance companies and security companies. It is a leading GIS business,
powered by its Web-based open GIS, GeoMation, and Internet-based system
integration. Hitachi Software Engineering, listed in the First Section of Tokyo
Stock Exchange with 10 billion dollars of market value, is headquartered in
Yokohama,
1
<PAGE>
Japan.
# # #
Note to Editors: @Road, the @Road logo, LocationSmart, and FleetASAP are
trademarks and/or service marks of @Road, Inc. All other names and marks are
trademarks or service marks of their respective owners.
2
<PAGE>
EXHIBIT E
SOURCE CODE RESTRICTIONS
1. Hitachi Software shall restrict access to the Source Code only to full-time
employees and/or contractors of Hitachi Software who need to have access to
the Source Code in order for Hitachi Software to exercise its rights under
this Agreement.
2. Hitachi Software shall advise all such authorized employees and/or
contractors of the confidential nature of the Source Code and shall require
them to execute an agreement requiring the protection of all such Source
Code in a manner consistent with the requirements of this Exhibit and that
certain Nondisclosure Agreement executed between the parties dated 31
January 2000.
3. Hitachi Software shall prevent, prosecute and enjoin any actual or
threatened unauthorized copying, use or disclosure of the Source Code.
4. Hitachi Software shall ensure that such employees and contractors comply
with the terms and conditions of this Agreement.
5. Hitachi Software shall deliver to @Road any modifications it makes to the
Source Code which are used by any Hitachi Software customers or Subscribers
within thirty (30) days of such first use.
6. @Road shall deliver the Source Code within thirty (30) days of the
Effective Date.
<PAGE>
EXHIBIT F
DELIVERY SCHEDULE
@Road FleetASAP
Action Date
-------------------------------------------------------------------------------------------------
Deliver @Road Documentation and FleetASAP Within 30 days of the Effective Date
Software
-------------------------------------------------------------------------------------------------
Technical orientation meeting - at @Road August 7, 2000
-------------------------------------------------------------------------------------------------
Engineering & development activities
Implementation
iLM August 7, 2000 - August 31,2000
FleetASAP Software September 18, 2000 - October 27, 2000
-------------------------------------------------------------------------------------------------
Disclosure Review Meeting Within 40 days of the Effective Date
-------------------------------------------------------------------------------------------------
Deliver revised @Road Documentation and Within 50 days of the Effective Date
FleeASAP Software, as needed
-------------------------------------------------------------------------------------------------
Testing - at @Road TBD
-------------------------------------------------------------------------------------------------
Testing - at Hitachi Software, Japan TBD
-------------------------------------------------------------------------------------------------
Remark: Detailed schedules will be reviewed and determined at the technical
orientation meeting.
<PAGE>
EXHIBIT G
SUPPORT
1. Definitions. For purposes of this Exhibit, the following terms shall have
-----------
the following meanings. Any terms not defined in this Exhibit shall have the
meaning set forth in the Agreement.
1.1 "API Upgrade" means improvements, enhancements and functional
-----------
enrichments to the iLM Firmware Kernel to accommodate market requirements of
application writing ability including those from Hitachi Software. @Road shall
use its best efforts to insure that an API Upgrade does not affect the
functionality of and is upward compatible with prior API Upgrades delivered to
Hitachi Software. API Upgrades shall not be considered Engineering Services or
"support" for purposes of payment pursuant to section 15.2 of the Agreement
unless the parties otherwise agree.
1.2 "Engineering Services" means technical training, design consulting,
--------------------
document creation, implementation, testing, and engineering development services
that @Road provides to Hitachi Software under this Agreement.
1.2 "Error(s)" means any verifiable and reproducible failure of the
-------
FleetASAP Software to conform to the specifications. The term "Error" shall not
include any failure of the FleetASAP Software that: (a) results from the misuse
or improper use of the FleetASAP Software; (b) does not materially affect the
operation and use of the FleetASAP Software; (c) results from any modification
to the FleetASAP Software not made by @Road; or (d) results from the failure to
incorporate or use any Updates or bug fixes made available to Hitachi Software
by @Road.
1.3 "Hitachi Contact" shall mean the representative of Hitachi Software
---------------
who will be the exclusive point of contact with @Road with respect to support.
The Hitachi Contact is Takatoshi Kodaira, General Manager, Geospatial
Information Division, 5-79, Onoe-cho, Naka-Yu, Yokohama 231-0015 Japan; tel:
+81-45-681-2196; fax: +81-45-681-2076; email: tkodaira@ika.hitachi-sk.co.jp.
Hitachi Software will have the right to change the Hitachi Contact with prior
written notice to @Road, provided that each Hitachi Contact (a) is able to speak
Japanese and English and (b) has software engineering experience reasonably
necessary to understand FleetASAP and assist in the satisfaction of @Road's
support obligations hereunder.
1.4 "Second Level Support" means @Road technical support of Hitachi
--------------------
Software's or Hitachi Software's authorized technical support agent's first
level support personnel to identify and resolve Errors remotely by telephone,
e-mail or fax communication.
1.5 "Update" means additional or replacement code or @Road Documentation
------
for the FleetASAP Software that is provided by @Road to remedy an Error.
1.6 "Upgrade" means any additional or replacement code or @Road
-------
Documentation for the FleetASAP Software provided by @Road that adds incremental
capabilities or functionality and that is designated by @Road, in its sole
discretion, as a new version of the FleetASAP Software. Upgrades include, but
are not limited to, versions of the FleetASAP Software which function on
platforms other than the iLM platform.
<PAGE>
1.7 "Workaround" means that @Road has diagnosed the Error and has
----------
implemented, or enabled Hitachi Software to implement, a temporary solution that
allows the FleetASAP Software to regain functionality and provide all major
functions in accordance with the specifications.
2. Services.
--------
2.1 Hitachi Software Responsibilities. Hitachi Software will provide all
---------------------------------
on site support with respect to the FleetASAP Software and the Hitachi Software
FleetASAP, and will provide all support to Hitachi Software FleetASAP customers
and Subscribers. Hitachi Software agrees to enable @Road to access remotely the
server on which the FleetASAP Software is installed to enable @Road to support
Hitachi Software remotely as set forth under this Exhibit. Further, upon
discovery of an Error, Hitachi Software agrees, if requested by @Road, to submit
to @Road a list of output and any other data that @Road may reasonably require
to reproduce the Error and the operating conditions under which the Error
occurred or was discovered.
2.2 @Road Telephone and Online Technical Support. Communications between
--------------------------------------------
Hitachi Software and @Road under this Exhibit will include electronic mail,
facsimile, and telephone. @Road's technical support e-mail address is:
staylor@road-inc.com. @Road's technical support fax number is: 510-353-6021,
and faxes should be addressed to Sean Taylor; or such other contact as
designated in writing to Hitachi Software. The technical support telephone is:
510-870-1132. Communications pursuant to this support plan shall be in the
English language. Hitachi Software shall use its best efforts to contact @Road
regarding support matters exclusively through the Hitachi Contact.
2.3 Error Corrections. In the event Hitachi Software notifies @Road of an
-----------------
Error in the FleetASAP Software, @Road will use commercially reasonable efforts
to provide Hitachi Software with an Update or Workaround..
2.4 Exclusions from Technical Support Services. Support does not include
------------------------------------------
services for any failure or defect in the FleetASAP Software caused by any of
the following: (a) the improper use, alteration, or damage of the FleetASAP
Software by Hitachi Software or persons other than @Road employees or
consultants; (b) modifications to the FleetASAP Software not made or authorized
by @Road, unless such modifications were made by an @Road employee,
subcontractor, agent, or other third party acting on behalf of @Road; (c)
interaction between the FleetASAP Software and operating systems, database
software and other software, when @Road has not approved such operating system,
database software, and other software for use with the FleetASAP Software; (d)
relocation or network reconfiguration; (e) failure by Hitachi Software to
provide and maintain a suitable installation environment, including but not
limited to proper electrical power, air conditioning or humidity control or (f)
failure by Hitachi Software to install or implement an Update or Workaround
provided to Hitachi Software by @Road hereunder. @Road's obligations under this
Agreement shall apply only to those releases of the applicable FleetASAP
Software that are then-currently supported by @Road.
2.5 API Upgrades and iLM Firmware Kernel Disclosure. Hitachi Software
-----------------------------------------------
recognizes that it is @Road's desire to maintain the iLM Firmware Kernel as a
common platform to all iLM firmware and that APIs are the sole interface between
the iLM Firmware Kernel and applications. When developing any applications
running with the iLM Firmware Kernel, Hitachi Software agrees to comply with
APIs provided that such APIs are reasonably well documented, functionally
feasible and technically stable to realize such applications. Should Hitachi
Software find necessary an API Upgrade, Hitachi Software may propose in writing
to @Road the proposed
2
<PAGE>
API Upgrade. @Road shall use its best efforts to provide the requested API
Upgrade; provided, however, that @Road may, in its sole discretion, promptly
disclose those portions of the iLM Firmware Kernel including applicable source
code and up-to-date explanatory documentation necessary to allow Hitachi
Software to satisfy the requested API Upgrade, provided further (i) that Hitachi
Software may modify such source code as is necessary to satisfy the requested
API Upgrade and that such modifications may alter the functionality such source
code and any such modified source code shall not be supported by @Road and (ii)
that the preparation of such non-API Upgrade disclosure shall not be counted as
part of Engineering Services.
3. Updates and Upgrades.
--------------------
3.1 Updates. @Road will provide Updates to Hitachi Software no later than
-------
the commercial release of such Updates. Hitachi Software will promptly install
such Update in accordance with the installation documentation provided to
Hitachi Software by @Road as Hitachi Software deems appropriate; provided
however, future @Road support shall assume the installation of such Updates.
3.2 Upgrades. @Road will make Upgrades available to Hitachi Software solely
--------
pursuant to mutually agreeable terms and conditions, including but not limited
to license terms and/or fees. @Road will notify Hitachi Software of such
Upgrades within sixty (60) days after the date @Road makes such Upgrades
commercially available to @Road customers.
4. Engineering Services. From time to time, Hitachi Software may propose in
--------------------
writing to @Road Engineering Services which Hitachi Software desires @Road to
provide to Hitachi Software. Such proposal will contain detailed specifications
of the Engineering Services which Hitachi Software desires @Road to provide.
Within a reasonable time period after receiving such Hitachi Software proposal,
@Road will inform Hitachi Software in writing whether @Road is willing to
provide such Engineering Services, and will include estimates of @Road's time
and materials rates with respect to the provision of such Engineering Services.
If @Road is willing to provide such Engineering Services to Hitachi Software,
Hitachi Software and @Road will mutually agree in writing upon the terms and
conditions under which @Road will provide such Engineering Services to Hitachi
Software.
3
<PAGE>
EXHIBIT H
HARDWARE PRICES
The prices in this Exhibit are subject to semi-annual adjustment. Semi-annual
adjustments, if any, shall occur on the six-month anniversaries of the Effective
Date during the term of the Agreement (each an "Adjustment Date"). Adjustments
---------------
to the prices shall be communicated to Hitachi Software in writing within thirty
(30) days of the Adjustment Date and such adjustments shall be effective for all
purchases of the Hardware after the Adjustment Date. Adjustments shall be
determined in the reasonable discretion of @Road.
FleetASAP Hardware Modifications Price
-----------------------------------------------------------------------------------------------------------
iLM 2000; Flash memory of 4 Does not include CDPD modem; does include up to a [*] each
megabits maximum of 5 feet of flexible cable, one end of which is
connected to existing modem connector and the other end
is extracted through the hole previously for the CDPD
Antenna and which hole is sealed
-----------------------------------------------------------------------------------------------------------
iDT 2500 None [*] each
-----------------------------------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS PAGE HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
EXHIBIT I
HITACHI SOFTWARE FLEETASAP
[DIAGRAM APPEARS HERE]
<PAGE>
EXHIBIT J
ROYALTIES
Section of Net Amount
Agreement Description of Royalty Received by @Road
-----------------------------------------------------------------------------
13.2 Prepaid Royalty [*]
-----------------------------------------------------------------------------
13.3(a) Class A Subscriber Monthly Royalty [*]
-----------------------------------------------------------------------------
13.3(b) Class B Subscriber Monthly Royalty [*]
-----------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS PAGE HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
2
<PAGE>
EXHIBIT K
ACCEPTANCE CRITERIA
1. Acceptance Test of iLM
(1) Testing environment
The acceptance test of iLM shall be carried out;
a) either connected to DoPa modem or a simulated DoPa modem.
b) connected to GPS antenna which is located in an open air space to
receive GPS signal
c) the interfacing channels (Data1, Data2, etc.) shall be connected to
personal computer to simulate or monitor the operation of these
channels
d) connected to power supply which can simulate an automobile power
system
(2) Testing criteria
a) GPS positioning shall be established within 45 seconds within a
predetermined accuracy
b) the interface channels shall operate properly
c) the interface to DoPa modem shall operate properly
d) The indicators on iLM box shall operate properly
e) The program in the non-volatile memory is so stored as specified by
Hitachi Software beforehand by memory media or equivalent
2. Acceptance Test of iDT
(1) Testing environment
The acceptance test of iDT shall be carried out;
a) either connected to iLM or a simulated iLM
b) the interfacing channels shall be connected to personal computer to
simulate or monitor the operation of these channels
c) connected to power supply which can simulate an automobile power
system
(2) Testing criteria
a) the interface channels shall operate properly
b) the interface to iLM shall operate properly
c) the indicators and push buttons on iDT shall operate properly
3. Source Inspection
Subject to the consent of @Road's manufacturer, Hitachi Software has the
right to carry out a source inspection at manufacturer's facilities if the
failure rate of the acceptance test is more than 1% for each 450 iLMs or
iDTs.
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