Co-Marketing Agreement - Nextel Finance Co. and At Road Inc.
@Road-Nextel Co-Marketing Agreement
NEXTEL
CO-MARKETING AGREEMENT
This Co-Marketing Agreement (the "Agreement") is entered into on this
Fifteenth day of December, 2000, by and between Nextel Finance Company, together
with various subsidiaries and controlled affiliates of Nextel Communications
Inc. (collectively referred to herein as "Nextel") and At Road, Inc., a Delaware
corporation ("Developer") whose principal business address is 47200 Bayside
Parkway, Fremont, CA 94538.
A. Nextel owns and/or operates systems to provide wireless
telecommunications (the "Systems"), together with various subsidiaries and
controlled affiliated companies as a nationwide network, in certain geographic
areas throughout the United States, provides access to such Systems (the
"Services") to its Customer ("Customers"), and believes professional
high-quality customer service is essential to Nextel's business; and
B. Developer has developed a specific application to be made
available to Nextel Customers by Developer and Developer shall provide billing,
customer care and support for the application in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. TESTING AND APPROVAL. Developer has submitted an application to Nextel for
testing and approval. Nextel has tested and approved the application described
in the application specification set forth in Exhibit A attached hereto (the
"Application"). Developer acknowledges and agrees that the Application testing
and approval process is not a guarantee or assurance that the Application is
compatible, or will continue to be compatible, with Nextel's System or any of
its product or service offerings. Such approval shall not be construed as an
endorsement of the Application or a commitment on the part of Nextel that there
will not be a similar application developed and deployed on the System at any
time in the future.
2. AUTHORIZATION. Developer is hereby authorized to make available to Nextel
Customers the Application defined in Exhibit A. The Application shall be made
available in accordance with Nextel's application sales, marketing and
distribution guidelines as supplied by Nextel from time to time. It is hereby
acknowledged that Nextel shall not receive compensation or service revenue from
Developer or Customers from the distribution or the use of the Application
(other than access and airtime usage revenue generated from the use of the
Application by the Customer or NOL Wireless Internet Service subscription). In
addition, Developer shall not receive any monetary compensation or other
consideration from Nextel for the testing and approval of the Application. Any
new release of the Application must be submitted to Nextel for testing and
approval 60 days prior to commercial launch pursuant to the testing and approval
process in effect at the time as set forth in Exhibit A-1. Developer shall
maintain a perpetual guest account for a minimum of fifty (50) simultaneous
Nextel users on Developer's system for ongoing monitoring and sales activities
of the Application by Nextel. Developer shall have the right to distribute bug
fixes, error corrections and other non-material
Nextel - Confidential - Not for Distribution
1
<PAGE>
changes to the approved Application release without Nextel's approval. This
Agreement does not authorize Developer to distribute any other application which
purports to be compatible or usable with Nextel products and services. In the
event Nextel detects usage of an unauthorized application or application release
on the System, Nextel reserves the right to disable access to the non-compliant
application without prior notice to Developer. In addition, Nextel reserves the
right to disable the access to the Application or other approved Developer
application if Nextel determines, in its sole discretion, that the Application
is causing (or likely to cause) disruption or interfering (or likely to cause
interference) with the System. If Nextel disables any access to Developer
application(s), Nextel shall provide prompt written notice of such act not to
exceed five (5) days from such act, and Nextel agrees to use reasonable efforts
to assist Developer with re-enabling access to any such approved Developer
application(s) on the System.
3. DEVELOPER CUSTOMER CARE AND APPLICATION SUPPORT OBLIGATIONS; SERVICE LEVEL
AGREEMENTS. Developer acknowledges and agrees that it is responsible for
providing billing, customer care and Application support to all Customers using
the Application. Developer hereby agrees to provide customer care and
Application support in accordance with the requirements set forth in Exhibit A-1
attached hereto. In addition, Developer agrees to provide service to Customers
at the levels set forth in Exhibit A-1 in the areas of provisioning, customer
care, billing, host uptime and performance (if applicable), sales referrals and
pre- and post-sales support.
4. NEXTEL CUSTOMER CARE AND APPLICATION SUPPORT OBLIGATIONS FOR THE APPLICATION.
Nextel will not provide billing, customer care and Application support for the
Application. In the event a Customer calls or otherwise contacts Nextel customer
care with an inquiry, question or other request regarding the Application,
Nextel shall refer the Customer to Developer in accordance with Exhibit A-1;
provided that Nextel has determined that such inquiry, question or other request
does not relate to Nextel's Systems or Services.
5. DEVELOPER PRIMARY AND SECONDARY POINTS OF CONTACT. Developer is required to
have at least one point of contact for technical issues and customer care and
support issues available 24 hours a day, 7 days a week.
Technical Points of Contact:
Primary Name: @Road NOC
Address: 47370 Fremont Blvd, Fremont, CA 94538
Desk Phone: 510-870-1119
Mobile Phone:
Fax: 510-870-1281
Email: itops@road-inc.com
Pager:
Secondary Name: Tana Parker
Address: 47300 Fremont Blvd, Fremont, CA 94538
Desk Phone: 510-870-1241
Mobile Phone: 510-714-4624
2
<PAGE>
Fax: 510-870-1281
Email: tparker@road-inc.com
Pager: 510-870-1281
Customer Care and Support Points of Contact:
Primary Name: Rhamesis Muncada
Address: 47200 Bayside Parkway, Fremont, CA 94538
Desk Phone: 510-870-1180
Mobile Phone: 510-714-8274
Fax: 510-445-1697
Email: rmuncada@road-inc.com
Pager:
Secondary Name: Dondi Dismer
Address: 47370 Bayside Parkway, Fremont, CA 94538
Desk Phone: 510-870-1130
Mobile Phone:
Fax 510-445-1697
Email: ddismer@road-inc.com
Pager:
Developer is required to notify Nextel's NOC of any changes to points of contact
listed above within seven (7) days of such change becoming effective. This
notification will be treated as an "operational issue" and communicated in
accordance with escalation procedures documented in Exhibit A-1 Service Level
Agreement.
6. MODIFICATIONS TO THE NEXTEL SYSTEM. Nextel makes no representation or
warranty that future modifications to the Nextel System will be backwards
compatible with the Application. In the event Nextel modifies the System,
Services or handsets functional with the Application in a manner that may impact
the usability or functionality of the Application, Nextel shall endeavor to post
a technical bulletin on the Nextel developer web site
(http://developer.nextel.com) containing the relevant technical information.
Nextel will use reasonable efforts to provide as much notice as possible of any
such modification. Provided, however, Nextel is not obligated to provide
technical support, updates or any other information to Developer with respect to
the System or any other aspect of Nextel's business.
7. DISCONTINUATION OF SUPPORT OF APPLICATION BY DEVELOPER. In the event that
Developer plans to discontinue support for the Application, Developer shall
provide the Customers using the Application and Nextel with at least sixty (60)
days written notice.
8. REPORTING. Developer shall be required to provide the reports in the format
and containing the information contained in Exhibit D attached hereto.
3
<PAGE>
9. TERM OF AGREEMENT. The term of this Agreement shall commence on the
Controlled Availability Date: December 18, 2000. Developer shall be required to
sign this Agreement first and then submit it to Nextel for execution. This
Agreement shall continue for a period of six (6) months from the Controlled
Availability Date. This Agreement shall automatically renew for additional
periods of six (6) months unless terminated as provided below. Each additional
term shall be referred to herein as an Extension Term.
10. LAUNCH PERIODS.
a. "CONTROLLED AVAILABILITY" period means the time period from December
18, 2000 until the date of Commercial launch. During the Controlled Availability
period, Nextel will (i) provision Service for the customers who are
participating in trials, and additional selected customers on a limited basis,
(ii) determine which customers will be given service, which decisions would be
made with input from Developer. Nextel or Developer may pursue limited marketing
and promotional activity with prior Nextel approval, during Controlled
Availability period.
b. COMMERCIAL LAUNCH of the Application and Services will begin upon
completion of the Controlled Availability period. Nextel shall determine when
its Systems are ready for Commercial Launch, and inform Developer of the same.
During Commercial Launch, Nextel and Developer may pursue marketing and
promotional activities, including press releases.
11. USER DATA.
a. Developer User Data. Except as provided below, Developer has the
exclusive right to collect, store and use all Developer User Data. Nextel
acknowledges that, as between Developer on the one hand and Nextel and its
affiliates on the other hand, all Developer User Data shall be owned by
Developer. "DEVELOPER USER DATA" means both individual and aggregate data (i)
generated in connection with a customer's use of Developer Content or the
Developer Wireless Site or the Developer Application or (ii) otherwise exchanged
between Developer and customers via the Nextel Tethered Packet Data Service or
the Developer Application.
b. Nextel User Data. Except as provided below, Nextel has the exclusive
right to collect, store and use all Nextel User Data. Developer acknowledges
that, as between Developer and its Affiliates on the one hand and Nextel and its
Affiliates on the other hand, all Nextel User Data shall be owned by Nextel.
"NEXTEL USER DATA" means both individual and aggregate data generated in
connection with a Customer's use of the Nextel Online Wireless Internet Service
or otherwise exchanged between Nextel and Customers. Nextel User Data includes,
but is not limited to: the identity of the transmitting and receiving parties,
the time and length of the communication and the location of the transmitting
party as determined by Nextel.
c. Collected Data of the Other Party. In the event that either party
receives or has access to any Collected User Data of the other, such party
agrees to comply with all applicable data privacy policies of the other covering
User Data as such may be provided by from time to time, provided that neither
party shall be subject to such restriction with respect to information provided
4
<PAGE>
to it by its customers, even if such information is also provided as Collected
User Data to the other. "COLLECTED USER DATA" means the Developer User Data and
the Nextel User Data.
d. Referral Information. Notwithstanding the foregoing, neither party
may directly or indirectly disclose any Referral Information (as defined below),
either alone or together with other information, to any third party, nor use or
permit any other person or entity to use any Referral Information to
specifically target communication to end-users or to otherwise specifically
solicit customers. "REFERRAL INFORMATION" means any information disclosing that
a specific user linked from a Nextel phone to the Application and any personally
identifying information about such specific user (including identification,
individually or in the aggregate, as a customer of Nextel or its Affiliates)
derived from such linking.
e. Developer agrees to abide by Nextel's policies regarding end-user
privacy, including the policies prohibiting unsolicited telephone calls SMS
messages and Internet alerts to Nextel users without express and specific
permission from the end-user. Nextel's internet privacy policy can be found at
Nextel's web site at www.nextel.com. For purposes of this Section, Nextel's
handset privacy policy shall be construed to incorporate by reference the
prohibitions against disclosure of Referral Information under Section 11.d. Each
party shall provide the other party with copies of any other policies that it
may adopt during the Term.
12. TERMINATION. This Agreement may be terminated by either party for cause upon
sixty (60) days written notice to the other prior to the end of the Term or any
Extension Term or shall terminate prior to the expiration of the Term or any
Extension Term, if and when any of the following events occur:
a. Breach of Agreement. Either party may terminate this Agreement
immediately upon written notice to the other party if the notified party fails
to cure a breach of its obligations hereunder within fifteen (15) days of
delivery of the written notice.
b. Bankruptcy or Cessation of Business. This Agreement shall be
terminated immediately at Nextel's or Developer's discretion, upon the other
party's cessation of business, election to dissolve, dissolution, insolvency,
failure in business, commission of an act of bankruptcy, receivership, general
assignment for the benefit of creditors, or filing of any petition in bankruptcy
or for relief under the provisions of the bankruptcy laws, if such petition is
not dismissed within 60 days thereafter.
c. Miscellaneous. Nextel may terminate this Agreement immediately upon
written notice to Developer if Developer:
i. Fails to follow Nextel's sales, marketing and distribution
guidelines;
ii. Discontinues support for the Application;
iii. Fails to operate in accordance with the service level
agreements set forth in Exhibit A-1;
iv. Fails to maintain primary and secondary points of contact as
required in Section 5 above;
v. Fails to comply with Nextel's confidentiality, user data and
privacy policies;
5
<PAGE>
vi. Fails to provide reporting as required pursuant to Exhibit D;
vii. Utilizes a trademark or other Nextel intellectual property
right without Nextel's prior written consent;
viii. Intentionally engages in conduct which degrades or
misrepresents the Nextel trade name or service in any way; or
ix. Changes the Application materially without notifying Nextel.
13. RIGHTS AND OBLIGATIONS UPON TERMINATION OR EXPIRATION. Upon the termination
or expiration of this Agreement, the parties agree that Developer shall
immediately (i) cease distribution of the Application to Customers; (ii) cease
the utilization of any Nextel Trademarks (as defined below) in association with
the Application; (iii) return to Nextel without retaining copies all Nextel
Confidential Information. Likewise, Nextel shall (i) cease the utilization of
any Developer Trademarks (as defined below); and (ii) stop using and destroy all
Developer Confidential information and certify in writing to Developer the
destruction of same. The following Sections shall survive termination or
expiration of this Agreement: 13, , 15, 16, 17, 19 and 22. Each party shall
continue to perform its obligations under this Agreement during any notice
period prior to the actual termination of this Agreement. At no time during or
after the term of this Agreement shall either party challenge or assist others
to challenge the other party's trademarks or the registration thereof or attempt
to register any trademarks, marks or trade names confusingly similar to those of
the other party.
14. TRADEMARKS AND COPYRIGHTS. Each party grants the other a non-exclusive,
nontransferable, royalty-free license to use, reproduce, distribute and display
the trademarks described herein solely in connection with (i) the advertising
and promotion of the availability of the Developer Application on Nextel Online
Internet Wireless Service, and (ii) the display of any links, as expressly
permitted hereunder between the Developer web site and the Nextel web site,
provided that uses of such trademarks in advertising and promotion must be
approved by the trademark owner in advance and are in compliance with the
trademark owner's then-current trademark usage guidelines. Neither party shall
acquire any right to goodwill, trademark, copyright, or other form of
intellectual or commercial property of the other party. Each party agrees that
all uses of the other party's trademarks will: (i) not alter the trademarks in
any way; and (ii) use the trademarks so that each of such trademarks creates a
separate and distinct impression from any other trademark that may be used by
the other party. Each party agrees that all uses of the other party's
trademarks, including the goodwill and reputation associated therewith, will
inure to the benefit of the other party. Developer acknowledges and agrees that
the name "NEXTEL" or the name of any of Nextel's affiliates (or the registered
fictitious name of such) and all marks and logos used by Nextel are service
marks and trademarks (collectively "Trademarks") belonging solely to Nextel
and/or its affiliates, and that Developer shall not use the same to identify its
business or use the Trademarks in its advertising except as otherwise permitted.
Nextel acknowledges and agrees that the name "@Road" and all marks and logos
used by @Road are service marks or trademarks belonging solely to @Road or its
affiliates, and that Nextel shall not use the same to identify its business or
use such trademarks in its advertising except as otherwise permitted.
6
<PAGE>
Nextel trademarks include, but are not limited to: the name "NEXTEL" or the name
of any of Nextel's affiliates (or the registered fictitious name of such) and
all marks and logos used by Nextel (collectively "Nextel Trademarks").
Developer trademarks include, but are not limited to: the @Road logo, the name
@Road(SM) iLM(TM) 2000i, @Road(SM) iDT(TM) 2500, LocationSmart(TM) by @Road(SM),
@Road(SM) FleetASAP(SM), MyWeb2Go(SM), and all marks and logos used by @Road
(collectively "Developer Trademarks").
15. INSPECTIONS: BOOKS AND RECORDS. Nextel shall have the right at Nextel's
expense and upon fifteen (15) days prior written notice, during business hours
to inspect Developer's books and records as they pertain to Developer's
obligations under this Agreement, and to make copies and extracts therefrom.
Developer shall maintain all such books and records for a minimum of twelve (12)
months after their creation and shall at all times keep them at the relevant
facility.
16. NO WARRANTY. NEXTEL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE TO DEVELOPER IN CONNECTION WITH ITS DEVELOPMENT OF THE
APPLICATION AND THE COMPATIBILITY, FUNCTIONALITY AND USABILITY OF THE
APPLICATION WITH THE SYSTEM OR NEXTEL'S PRODUCTS AND SERVICES. DEVELOPER MAKES
NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO NEXTEL IN
CONNECTION WITH THE APPLICATION AND THE COMPATIBILITY, FUNCTIONALITY AND
USABILITY OF THE SYSTEM OR NEXTEL'S PRODUCTS AND SERVICES WITH THE APPLICATION.
17. NON-LIABILITY OF THE PARTIES. NEXTEL SHALL NOT BE RESPONSIBLE FOR SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING
WITHOUT LIMITATION, LOST PROFITS OR OTHER MONETARY LOSS, ARISING OUT OF THE
PERFORMANCE OR FAILURE OF NEXTEL'S SYSTEM, PRODUCTS OR SERVICES, WHETHER OR NOT
ANY SUCH MATTERS OR CAUSES ARE WITHIN NEXTEL'S CONTROL OR DUE TO NEGLIGENCE OR
OTHER FAULT ON THE PART OF NEXTEL, ITS AGENTS, AFFILIATES, EMPLOYEES OR OTHER
REPRESENTATIVES. DEVELOPER SHALL NOT BE RESPONSIBLE FOR SPECIAL, INDIRECT,
INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT
LIMITATION, LOST PROFITS OR OTHER MONETARY LOSS, ARISING OUT OF THE PERFORMANCE
OR FAILURE OF DEVELOPER'S APPLICATION, PRODUCTS OR SERVICES, WHETHER OR NOT ANY
SUCH MATTERS OR CAUSES ARE WITHIN DEVELOPER'S CONTROL OR DUE TO NEGLIGENCE OR
OTHER FAULT ON THE PART OF DEVELOPER, ITS AGENTS, AFFILIATES, EMPLOYEES OR OTHER
REPRESENTATIVES. ANY LIABILITY INCURRED BY EITHER PARTY IN CONNECTION WITH THIS
AGREEMENT SHALL BE LIMITED TO ALL FEES PAID OR TO BE PAID UNDER THIS AGREEMENT;
EXCEPT THAT THIS LIMITATION SHALL NOT APPLY TO ANY LIABILITY PURSUANT TO
SECTIONS 14, 18, or 19 HEREIN. THE AGGREGATE LIABILITY OF EITHER PARTY UNDER
SECTIONS 14 AND 18 SHALL BE
7
<PAGE>
LIMITED TO THE OTHER PARTY'S ACTUAL DIRECT DAMAGES FOR BREACH OF SUCH SECTIONS,
INCLUDING THE COSTS OF OBTAINING REPLACEMENT SERVICES AND DELIVERABLES COMPLYING
WITH THE TERMS HEREOF.
18. INDEMNIFICATION. Developer shall indemnify, defend and hold Nextel, its
subsidiaries, affiliates, officers, directors, employees, representatives,
agents and assignees harmless against any liability for any claims arising out
of Developer's acts or omissions pursuant to this Agreement or any claim or
action against Nextel on the issue of infringement of any patent, copyright,
trademark or trade secret arising out of or resulting from the Application that
results in any Claim against Nextel, its subsidiaries, affiliates, officers,
directors, employees, representatives, agents or assignees; provided that
Developer shall have sole control of any such action or settlement negotiations,
and further provided that Nextel shall notify Developer promptly in writing of
such claim and shall give Developer all authority, information and assistance
reasonably necessary to settle or defend such claim. For purposes of this
indemnification, "Claims" means and includes all obligations, such as taxes in
connection with business conducted or sales made by Developer, actual and
consequential damages, and out-of-pocket costs reasonably incurred in the
defense of any claim, such as accountants', attorneys' and expert witness fees,
costs of investigation and proof of facts, court costs, other litigation
expenses, travel and living expenses. Nextel shall have the right to defend any
such claim against it at Nextel's expense. This indemnity shall continue in
effect even after, and notwithstanding, this Agreement's expiration or
termination. If Developer reasonably believes it is likely to become or is a
party to a claim of infringement, Developer may, at its option terminate this
Agreement upon written notice to Nextel.
19. NON-DISCLOSURE AGREEMENT. The parties acknowledge that they have entered
into a mutual Non-Disclosure Agreement prior to the date hereof ("NDA" or
"Confidentiality Agreement"). All aspects of this Agreement shall be subject to
the terms and conditions of the NDA. The terms and conditions of this Agreement
and all exhibits hereto shall be considered CONFIDENTIAL INFORMATION, as such
term is defined in the NDA dated December 7, 2000.
20. DEVELOPER PHONES AND SERVICE. Nextel shall not provide demo phones or
wireless service to Developer. Developer may purchase Nextel phones and service.
Nextel may offer a developer rate plan to Developer during the term of this
Agreement. Developer will be notified or information will be posted on the
developer web site regarding any such developer rate plan. Any such developer
rate plans will be for the purpose of development work only. Developer shall be
responsible for all Nextel service charges in connection with demo phones or
wireless service purchased by Developer under this section.
21. PRESS RELEASES. Neither Developer nor Nextel shall issue a press release or
public statement or make any public disclosure of the existence, contents or
terms of this Agreement or any other aspect of the relationship between the
parties hereto without the express written consent of the other party. Such
consent must include approval of both the text and publication date of the
intended press release, public statement or public disclosure.
22. MISCELLANEOUS.
8
<PAGE>
a. Interpretation and Construction. The captions contained herein are
for the convenience of the parties hereto and shall not be construed to amend or
modify any of the provisions hereof. The language in all parts of this Agreement
shall in all cases be construed in accordance to its fair meaning as if prepared
by all parties to the Agreement and not strictly for or against any of the
parties.
b. Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties hereto. No waiver, amendment or modification
of any provision of this Agreement shall be valid unless in writing and signed
by the parties hereto.
c. Waiver. The failure of a party to object to, or to take affirmative
action with respect to, any conduct of the other which is in violation of the
terms of this Agreement shall not be construed as a waiver of the violation or
breach or of any future violation, breach, or wrongful conduct. Any waiver, in
whole or in part, of any provision hereof shall not be construed as a waiver of
any other provision hereof, or as a future waiver of any subsequent breach by
Developer.
d. Assignment. This Agreement shall be freely assignable by Nextel.
Developer may not assign this Agreement without the prior written consent of
Nextel, which shall not be unreasonably withheld or delayed, provided, however,
that Developer may assign this Agreement without the consent of Nextel in
connection with any merger, consolidation, any sale of all or substantially all
of Developers assets or any other transaction in which more than fifty percent
(50%) of Developer's voting securities are transferred.
e. Legal Representation. Each of the parties expressly acknowledges and
agrees that it has consulted with and utilized separate counsel in connection
with this Agreement.
f. Notices. Unless otherwise provided for herein, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be made by hand delivery, first class mail, postage prepaid, return receipt
requested, or telex, telecopier, or reliable overnight courier addressed as
follows:
If to Developer to: If to Nextel to:
At Road Inc. Nextel Communications
47200 Bayside Parkway 2001 Edmund Halley Drive
Fremont, CA 94538 Reston, VA 20191
Attn: Chief Operating Officer Attn: VP Product Management
With a copy to; With a copy to:
At Road Inc. Nextel Communications, Inc.
47200 Bayside Parkway 2001 Edmund Halley Drive
Fremont, CA 94538 Reston, VA 20191-3436
Attention: VP Marketing Attention: VP Business Development
And with a copy to: And with a copy to:
At Road, Inc. Nextel Communications, Inc.
47200 Bayside Parkway 2001 Edmund Halley Drive
9
<PAGE>
Fremont, CA 94538 Reston, VA 20191-3436
Attention: General Counsel Attention: Senior Corporate Counsel
All such notices and communications shall be deemed to have been duly
given when delivered by hand, if personally delivered; three (3) business days
after deposit in any United States Post Office in the Continental United States,
postage prepaid, if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied, or the next business day if by overnight courier.
g. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the Commonwealth of Virginia and Developer consents
to the jurisdiction and venue of the courts sitting Fairfax County, Virginia.
Developer waives all defenses of lack of personal jurisdiction and forum
nonconveniens. Process may be served on either party in the manner authorized by
applicable law or court rule. If either party employs attorneys to enforce any
rights arising out of or relating to this Agreement, the prevailing party shall
be entitled to recover reasonable attorneys' fees.
h. Unenforceable Terms. If any provision of this Agreement is illegal or
unenforceable, its invalidity shall not affect the other provision of this
Agreement that can be given effect without the invalid provision. If any
provision of this Agreement does not comply with any law, ordinance or
regulation, such provision to the extent possible shall be interpreted in such a
manner to comply with such law, ordinance or regulation, such provision to the
extent possible shall be interpreted in such a manner to comply with such law,
ordinance or regulation, or if such interpretation is not possible, it shall be
deemed to satisfy the minimum requirements thereof.
i. Binding Effect. This Agreement shall bind and inure to the benefit of
the parties hereto and their respective heirs, legal representatives, successors
and permitted assigns.
j. Exhibits. The Exhibits hereto are hereby incorporated by reference
and made part of this Agreement.
k. Each party agrees to bear its own costs and expenses in connection
with such party's performance under this Agreement.
IN WITNESS WHEREOF, Developer has caused this Agreement to be executed
by its duly authorized representative.
DEVELOPER: NEXTEL:
By: (signature) /s/ KRISH PANU By: (signature) /s/ TIMOTHY J. DUNNE
------------------------- ---------------------
Name: Krish Panu Name: Timothy J. Dunne
------------------------- ---------------------
@ Road Inc.
10
<PAGE>
Title: CEO Title: Vice President
------------------------- ----------------------------
Date: 12/15/2000 Date: 12/21/00
------------------------- ----------------------------
11
<PAGE>
EXHIBIT A
DESCRIPTION OF DEVELOPER PRODUCT
Developer provides Mobile Resource Management services, including location-based
information and messaging services. The branded service, FleetASAP, includes GPS
location, wireless connectivity and Internet technologies to provide these
services to commercial vehicles. Features of FleetASAP include:
LOCATION
- GPS-determined location information reported at selectable intervals
- Location information on demand
- Event driven location reporting
- Map view of location information
REPORTING
- Reports available for location, speed, stops, switch status and cargo
temperature
- View entire set of vehicles or single vehicle reporting
- Scheduled maintenance reports
- Messaging history report
- The ability of multiple users to view the information from multiple
locations
DISPATCH
- Work metrics status, activity and messaging history
- Forms
- Work flow status
TWO WAY MESSAGING
- Two way messaging between Internet user and remote user
- Record of messaging activity
APPLICATION PROGRAM INTERFACES
The @Road Application Program Interfaces (API) will allow partner software
applications to:
- Receive current or last reported location for one or more vehicles
- Receive a list of 'close' vehicles to a specified location/location
range
- Send and receive landmarks information
- Send and receive text or form messages to and from one or more vehicles
@Road API's are based on industry standard XML interface via a request and
response mechanism to allow seamless integration with partner applications.
12
<PAGE>
Implementing the FleetASAP service using the Nextel System requires an
in-vehicle iLM (Internet Location Manager) tethered to a plus-series Nextel
phone with a routable IP. For messaging services, the service provides the
option to add an iDT. The Internet user logs on to the Developer website to
access its account and data generated by the FleetASAP service.
13
<PAGE>
EXHIBIT A-1
SERVICE LEVEL AGREEMENT
I. INTRODUCTION
This document shall serve as the Service Level Agreement (SLA) between Developer
and Nextel. To adequately offer and support Developer applications, Nextel and
Developer must agree to the terms outlined in this SLA covering the following
areas.
- Application availability as seen by the Nextel subscriber
- Trouble identification and resolution process
- Developer customer care process
- Nextel/Developer escalation contact information
- Open issues list and reporting
- Applications performance validation and change control
This Service Level Agreement applies ONLY to Developer Application described in
Exhibit A. Developer is directly responsible for providing billing, customer
service and support to customers who license or purchase Developer's
Application.
II. APPLICATION AVAILABILITY AS SEEN BY THE NEXTEL SUBSCRIBER
APPLICATION AVAILABILITY
The Application availability requirement at commercial launch will be that a
user of the Application will be able to view from its Internet account data
captured from products activated with the Application, ping activated products
and send and receive text messages from and to activated products, when the
Application is used by an Application user according to the instructions
included with the Application. The ability of a user of the Application to
access its account through the Developer website will serve as the demarcation
for coverage under this SLA. This SLA applies only to service outages directly
related to the service provided to Developer's Application. The scope of this
SLA does not include, under any circumstances, any public Internet backbones and
networks, any server on the Internet, customer premise equipment ("CPE") and
local access service of any type. SLA objectives apply only to out-of-service
conditions and do not apply to scheduled service interruptions, degradation of
service, packet loss, or sub-optimal performance. Measurement of out-of-service
conditions will be conducted by Developer, and reported to Nextel as stated
below, in Section III - Trouble Identification and Resolution Process. Under no
circumstances will the following be considered an out-of-service condition: (a)
tickets associated with parts or equipment installations; (b) trouble
tickets erroneously opened by other than Developer; (c) required user circuit
release for testing; (d) trouble tickets opened by Developer for monitoring
purposes only; and (e) events beyond Developer's reasonable control.
SCHEDULED DOWNTIME/MAINTENANCE
14
<PAGE>
It is expected that occasional downtime will be required to maintain and enhance
Developer-hosted applications. Developer will make commercially reasonable
efforts to provide Nextel with 48 hours prior notice by email to
mclean_noc@nextel.com of scheduled out-of-service conditions or service
interruptions. Developer will schedule such downtime in an effort to minimize
any impact on users of the Application, including between the hours of 1:00 AM
and 3:00 AM Eastern Time. Special consideration will be given as dictated by
customer needs. For example, some applications might need to be online during
late evening/early morning times. If the Developer required work time exceeds
the two hour maintenance window, then Developer shall make commercially
reasonable efforts to provide Nextel seven days prior notice by email to
mclean_noc@nextel.com.
Developer is responsible for 365 x 7 x 24 monitoring of Developer Application
and taking immediate action to resolve any application issues.
III. TROUBLE IDENTIFICATION AND RESOLUTION PROCESS
NOTIFICATIONS/ALERTS
During the course of normal operations, service impairments (e.g. slow response,
partial service outage) may occur. Nextel requires the Developer to notify the
Nextel Network Operations Center (NOC) of any observed impairment immediately so
that joint investigation and trouble determination may occur. Immediate
telephone notification to 1-877-207-9125 (NOC) as well as electronic mail to
mclean_noc@nextel.com is required. Developer requires Nextel to notify the
Developer Contact at itops@road-inc.com for operational issues of any observed
impairment immediately so that joint investigation and trouble determination may
occur. Details of the impairment should be provided (e.g. service affected,
extent of impairment, contact for joint troubleshooting, etc.) by the party
providing notice under this paragraph.
GOAL OF THE TROUBLE IDENTIFICATION AND RESOLUTION PROCESS
The goal of the trouble identification and resolution process is to resolve all
service problems (a) before they are seen by a subscriber or (b) as quickly and
efficiently as possible once reported by a subscriber. To this end, monitoring
and surveillance as well as troubleshooting and issue determination and analysis
are key to success. Coordination of activities between Nextel and the Developer
is essential.
PRIORITY ASSIGNMENTS AND RESOLUTION INTERVALS
To ensure a concerted and coordinated resolution effort, agreement on the
priority and the target resolution interval is needed. The following tables list
this framework.
15
<PAGE>
PRIORITY CRITERIA AND EXAMPLES
-------- ---------------------
Criteria:
High - The Application is not delivering the functionality documented in
Exhibit A to a cross-section of subscribers. A hosting or software
issue is judged to be the cause of the service interruption.
- Developer supplied, applications administration tools are not
available or operational. Customer status and configuration issues
can not be resolved.
Criteria:
Medium - Obvious and significant service degradation to previously
experienced Application performance.
- Flaw in administration tool that is causing significant loss of
functionality and no clear workaround is immediately available.
Criterion:
Low - Problem with the Developer application that is inconvenient but
can be worked around with minimal disruption to the subscriber's
activity and results in minimal usage reduction.
PRIORITY INITIAL RESPONSE UPDATE INTERVAL RESOLUTION GOAL
-------- ---------------- --------------- ---------------
High 60 minutes or less Every 120 minutes 4 hours
Medium 120 minutes or less Every 4 hours 8 hours
Low 2 business day or less Weekly 1 week or less
MANAGEMENT NOTIFICATION PROTOCOL
If trouble resolution goals are exceeded, the Nextel NOC will provide advisories
to Nextel's Senior Management as outlined below. It is expected that the
Developer will implement a similar notification process to their management
team. This will allow maximum situational awareness of key issues and allow
coordinated communications and resolution efforts.
16
<PAGE>
NEXTEL NOTIFICATION PROTOCOL
RESOLUTION GOAL 2x RESOLUTION GOAL 3x RESOLUTION GOAL
PRIORITY EXCEEDED EXCEEDED EXCEEDED
-------- ------------------- ------------------------ -----------------------
High Manager NOC Director NOC VP Engineering & Ops
Business Development VP Marketing Product
Director Mgmt.
Medium Manager NOC Director NOC VP Engineering & Ops
Business Development VP Marketing Product
Director Mgmt.
Low Manager NOC Director NOC VP Engineering &
Business Development Operations
Director VP Marketing Product
Mgmt.
DEVELOPER NOTIFICATION PROTOCOL (DEVELOPER CONTACTS TO BE SUPPLIED)
RESOLUTION GOAL 2x RESOLUTION GOAL 3x RESOLUTION GOAL
PRIORITY EXCEEDED EXCEEDED EXCEEDED
-------- ------------------- ------------------------ -----------------------
High Rhamesis Muncada Dondi Dismer Janet Camberis
Senior Customer Customer Satisfaction VP Customer Satisfaction
Satisfaction Rep Director 1-877-4AtRoad
1-877-4AtRoad 1-877-4AtRoad
Medium Rhamesis Muncada Dondi Dismer Janet Camberis
Senior Customer Customer Satisfaction VP Customer Satisfaction
Satisfaction Rep Director 1-877-4AtRoad
1-877-4AtRoad 1-877-4AtRoad
Low Rhamesis Muncada Dondi Dismer Janet Camberis
Senior Customer Customer Satisfaction VP Customer Satisfaction
Satisfaction Rep Director 1-877-4AtRoad
1-877-4AtRoad 1-877-4AtRoad
IV. DEVELOPER CUSTOMER CARE PROCESS
Developer provides customer Support M-F 5 a.m. - 5 p.m. Pacific Time and
Saturday 7 a.m. - 4 p.m. Pacific Time. After hours 7x24 coverage for phone
inquiries will be implemented via pager notification effective December 18,
2000. Customers contact Developer via phone or email. Contacts are logged in an
Oracle database. Developer may duplicate the customer's issue in order to verify
the problem and advise the customer appropriately. Each issue is recorded in
Developer's database with a case #. All cases are assigned a case status which
reflects where it is in the resolution process. Technicians have access to
senior staff members to help drive
17
<PAGE>
resolution or escalate more difficult problems. Some cases require a physical
inspection/servicing of the hardware by a Developer-certified installer before
final resolution can be made. Should a problem require hardware replacement
Developer will dispatch a Developer-certified installer to the customer's
location. Developer-certified installer carry van stock of certain components
that enable the Application. Any components needed that are not carried by a
Developer-certified installer will be shipped to the customer's location.
Developer certified installers will not carry van stock of Nextel phones for
customer replacement purposes nor will Developer ship Nextel phones to
customers.
All suspected bugs are run through a central point in the customer satisfaction
department before going to the Developer operations department for further
investigation and verification. Bugs which are not resolved by the operations
department are assigned to software development department with a priority level
for resolution. Developer conducts a weekly cross functional meeting among
quality assurance, software development, operations and customer satisfaction
departments to discuss and resolve open issues.
Notwithstanding Section 11(e) of the Agreement, Application customers may be
contacted unsolicited to permit Developer to conduct customer satisfaction and
technical and market research or testing.
V. NEXTEL/DEVELOPER ESCALATION CONTACT INFORMATION
The following table lists the points of contact for consultation and escalation
of identified issues between Developer Care and Operations and Nextel Care and
Operations. All Nextel calls will be handled on a 365 x 7 x 24 basis.
NEXTEL CONTACTS (FOR DEVELOPER USE)
CALL NEXTEL HOURS OF
Types DEPARTMENT NEXTEL PHONE NUMBERS TO USE OPERATION
----- ---------- --------------------------- -----------
Customer Issues Refer to Nextel 1-800-639-6111 7 x 24
Customer Care
Operational 1-877-207-9125 7 x 24
Issues NOC
18
<PAGE>
DEVELOPER CONTACTS (FOR NEXTEL USE)
HOURS OF
OPERATIONS
(IF NOT 24x7,
PLEASE SPECIFY
CALL DEVELOPER PHONE DAYS AND
TYPES DEVELOPER DEPARTMENT NUMBER TO USE HOURS
----- -------------------- -------------------- ---------------
Customer Issues Customer Satisfaction 1-877-4AtRoad See Exhibit
Department A-1 Section
IV
Operational IT Operations 1-877-4AtRoad See Exhibit
Issues A-1 Section
IV
VI. OPEN ISSUES LIST AND REPORTING
There are two types of monthly Developer reporting that will be required:
operational and customer care.
OPERATIONAL REPORTING
The Developer will provide monthly reports, within thirty (30) days of the end
of each month, to Nextel's NOC on the status of all issues reported to Developer
by Nextel. This report will contain the date that the issue was opened, a
summary of the issue, the current issue status and, if resolved, the date and
description of the resolution.
CUSTOMER CARE REPORTING
A monthly report, within thirty (30) days of the end of each month, containing
the following information will be provided by the Developer:
- Number and type of customer care calls received each month from Nextel
customers
- Summary information on problems found and resolution
- Total number of unresolved issues involving Nextel customers
- Date unresolved cases were opened and its current status
VII. APPLICATIONS PERFORMANCE VALIDATION AND CHANGE CONTROL
OBJECTIVES OF THE APPLICATIONS PERFORMANCE VALIDATION AND CHANGE CONTROL PROCESS
The objectives of the Applications Performance Validation and Change Control
Process are, in general, to assure that all applications meet, and continue to
meet, customer expectation for performance and feature functionality. This
process defines the series of subprocesses required to assure application
performance and system-level compatibility throughout the application and
supporting systems life cycle. These subprocesses and the associated
responsibilities are discussed below.
19
<PAGE>
CHANGE NOTIFICATION
Nextel must be notified of planned application, communications and
hosting/platform related changes, maintenance and upgrades, which materially
affect, in the reasonable discretion of Developer, the transmission of data
between the Developer network and the Nextel network. Notification will be made
by means of a mutually agreed format and single point of contact thirty (30)
days prior to the change. Where notification cannot be made in the requisite
time frame notification will be made at the earliest possible date.
Likewise, Nextel will provide Network upgrade and change control information and
information regarding changes to Nextel handsets which can function with the
Application to Developer thirty (30) days in advance of changes and by means of
a mutually agreed format. This will allow Nextel and Developer to complete
analysis and testing, if required, to confirm continued Application operation.
APPLICATION VALIDATION & VERIFICATION (AV&V)
The goal of the AV&V process is to capture and/or quantify functional and
performance issues and/or metrics related to an integrated application or
service offering prior to commercial launch or cutover. Qualifying activities
include:
- Applications not previously employed with Nextel's general service offerings,
- major software releases/upgrades associated with applications actively
available as a part of Nextel's general service offering,
- Point releases/upgrades associated with applications actively available as a
part of Nextel's general service offering,
- Bug fixes or patches to be applied to actively available applications, any
upgrades or modifications to the applications hardware or software platform,
and
- Any modification, upgrades or changes to the communications (WAN) component
of the applications offering.
The information captured during the testing stage of this process is
disseminated to the various responsible constituencies within Nextel for the
general purposes of Care and Network Planning. Nextel and the Developer will
cooperate to assure that testing occurs on a release version of the software,
platform, and communications environment prior to commercial release or cutover.
APPLICATION CHANGE PROCESS
For each planned major or point software release, an open problem list of key
critical issues should be maintained by the Developer. This list must be made
available to Nextel, in a format determined by Developer, as part of the
Application Validation and Verification (AV&V) process.
Major Release and Point Release
Nextel will be notified of all software major releases, and software point
releases, relating to the Application sixty (60) days prior to commercial
release. Major releases will be submitted to
20
<PAGE>
Nextel's AV&V process, through the defined Nextel point-of-contact (POC),
employing the existing Nextel documentation and request forms. AV&V Requests
submitted for major software releases and point releases, will detail all new
feature functionality, interoperability, performance changes associated with the
major release, and a summary of the Developer's test(s) which demonstrate that
the release functions properly on the Nextel System. All new software releases
relating to the Application must be backward compatible, except, in certain
cases where prior written consent has been obtained from Nextel.
Patches and Fixes
Recognizing the unpredictable nature of bug fixes and patch releases, Nextel
will be notified of any such changes to the Application which have a material
impact on the Application, as determined by Developer, at the earliest
commercially reasonable date prior to commercial release. Bug fixes and patch
releases will be submitted to Nextel's AV&V process, through the defined Nextel
POC, employing the existing Nextel documentation and request forms. AV&V
Requests submitted for bug fixes and patch releases will detail the fix and any
software functionality, interoperability and performance implications, and a
summary of the Developer's test(s) which demonstrate that the release functions
properly on the Nextel System.
PLATFORM AND COMMUNICATIONS CHANGE PROCESS
System Upgrades and Changes
Nextel will be notified of any planned application platform and communications
systems upgrades relating to the Application, which have a material impact on
the Application sixty (60) days prior to commercial cutover. Material planned
system upgrades and changes will be submitted to Nextel's AV&V process, through
the defined Nextel POC, employing the existing Nextel documentation and request
forms. AV&V Requests submitted for upgrades and changes will detail the upgrade
and/or change any functionality, interoperability and performance implications.
Maintenance
Nextel's NOC will be notified of all planned and/or unplanned maintenance or
changes as described in the "Notifications/Alerts to Nextel" section of this
document.
REVIEW
Upon reasonable request Developer agrees to meet with Nextel by phone or in
person at a time and place mutually agreeable to the parties to review reports
and the parties' performance under this Service Level Agreement. No more than
one such meeting shall occur per calendar quarter unless otherwise agreed to by
the parties. Notwithstanding the foregoing, Developer and Nextel agree to meet
by phone or in person at a time and place mutually agreeable to the parties
thirty (30) days prior to contract renewal to review their performance under
this Service Level Agreement.
21
<PAGE>
APPLICATION UPGRADE ROADMAP
A 6-month plan of key Application enhancements will be maintained jointly by the
Developer and Nextel. This roadmap will be updated on a quarterly basis and is
subject to the terms of the Confidentiality Agreement. The parties shall
designate a point-of-contact for such roadmap within thirty (30) days of the
effective date of the Agreement.
22
<PAGE>
EXHIBIT B
FEES AND PRICING SCHEDULE
NEXTEL PRICING
Nextel will retain complete discretion in setting the prices to be charged to
Customers for Nextel Services and equipment. In general, Nextel will charge
customers for Nextel Services and/or equipment at standard commercial rates as
published on the Nextel commercial web site, http://www.Nextel.com.
Nextel may at its sole discretion offer promotional pricing for Nextel Services
and/or equipment, either nationally of within specific market(s). Such
promotional offers may be available for a limited time or subject to
restrictions, and may not be listed on the Nextel commercial web site. Nextel
also reserves the right, at its sole discretion, to negotiate custom pricing for
specific customers.
Nextel will update its Web site for changes in Nextel service prices on or
before the date on which new pricing is announced to the public. Notification
will be deemed to have been completed when the updated Nextel Service and/or
hardware prices are posted to the Nextel commercial web site.
Nextel is not obligated to disclose negotiated Service and/or equipment prices,
unless and until Nextel and Developer are jointly offering service to a customer
who has been offered such rates. Information about negotiated Nextel Service
and/or hardware rates which is disclosed to Developer is subject to the terms of
the Confidentiality Agreement executed between Nextel and Developer.
DEVELOPER PRICING
Developer will retain complete discretion in setting the prices to be charged to
Customers for the Developer services including the Application or any updates,
upgrades or enhancements thereto. Developer will notify Nextel of changes in
service prices, which are generally available to all customers as early as
reasonably possible, not later than ten (10) days before the date on which the
new pricing is announced to the public.
Developer may at its sole discretion offer promotional pricing for Developer
services and/or equipment, either nationally or within specific market(s). Such
promotional offers may be available for a limited time or subject to
restrictions, and may not be listed on the Developer commercial web site.
Developer also reserves the right, at its sole discretion, to negotiate custom
pricing for specific customers.
Developer is not obligated to disclose negotiated service and/or equipment
prices, unless and until Nextel and Developer are jointly offering service to a
customer who has been offered such rates. Information about negotiated Developer
service and/or hardware rates which is disclosed
23
<PAGE>
to Developer is subject to the terms of the Confidentiality Agreement executed
between Nextel and Developer.
Developer's anticipated customer pricing structure for the initial launch of the
Service is as follows:
24
<PAGE>
[@ROAD LOGO]
FleetASAP(SM) COMMERCIAL PRICING
Nextel Wireless Network Markets
---------------------------------------------------------------------------------------------------------------------------
FleetASAP ACTIVATION PACKAGES
---------------------------------------------------------------------------------------------------------------------------
Hardware
Purchase Monthly Service
VEHICLE MANAGEMENT SYSTEM 24-month 36-month
-------- --------
iLM(TM)2000i - Nextel Internet Location Manager
950-0023-000 (Includes tethered cable) [*]
Antenna Options (choice of antenna: one for one with iLM)
901-0015-000 Option R: GPS Loop Antenna (recommended) [*]
901-0005-000 Option S: Mag mount GPS antenna [*]
Phone Holder Options (choice of holders: one for one with iLM)
391-0006-000 Option A: For series i500+, i550+ and i700+ phones [*]
391-0007-000 Option B: For series i1000+ phones [*]
FAQ1 FleetASAP - STANDARD (Nextel data servicers not included) [*] [*]
MESSAGING SYSTEMS
iLM w/iDT(TM)2500 - Internet Data Terminal
(With Nextel phone enabling enhancements) [*]
Option: Commercial Keyboard [*] [*]
TM2000 INTEGRATED MESSAGING w/work-flow status & forms [*] [*]
StatASAP SYSTEMS (per sensor)
951-0003-000 Power Switch Sensor Kit (ignition on/off & hoist up/down) [*] [*]
950-0017-001 Door Sensor Kit (roll-up doors open/close) [*] [*]
950-0017-000 Temperature Sensor & Assembly Kit (one sensor per iLM) [*] [*]
SW2000 StatASAP (per sensor) [*] [*] [*]
---------------------------------------------------------------------------------------------------------------------------
Pricing is based upon the installation & activation of an iLM; hardware purchased separately will require an
additional [*] charges for installation, shipping, & handling
Airtime charges will be billed separately by Nextel.
CONFIDENTIAL
Unauthorized disclosure is prohibited
Pricing is subject to change without notice
EFFECTIVE DECEMBER 10, 2000
[*] Confidential material redacted and filed separately
with the SEC.
25
<PAGE>
EXHIBIT C
CO-MARKETING
I. INTRODUCTION
The following are a list of activities that both parties may agree to pursue in
order to increase sales of Developer's Application and Nextel's phones and
service. These activities will commence on or after the launch date agreed to by
both parties.
Nextel may market the Application to both its existing and prospective
customers, either directly or through indirect authorized representatives
mutually agreeable to the parties. In connection therewith, Nextel may include
the tagline "Powered by Nextel" in all marketing materials related to the
Application. Nextel may also promote the Application through customer
newsletters, direct mail, advertising, trade shows, and through its web site.
Except as noted below, Developer may elect, at its discretion and cost, to
promote the Application in general at any time, without reference to Nextel.
Developer will make available to Nextel sales personnel any sales support tools
currently available or developed in the future by Developer, at the consent of
Developer, which consent shall not be unreasonably withheld or delayed.
Unless otherwise agreed by the parties in writing, each party shall bear its own
costs for the marketing activities which such party conducts.
II. PUBLIC RELATIONS
a. Subject to approval of content by the other party, Developer shall be
permitted to issue a press release announcing the existence of this
Agreement after commercial availability of the Application, and Nextel
shall be permitted to issue an individual press release and/or a collective
press release with respect to its overall Nextel Online Internet Services,
including a reference to its arrangement with Developer pursuant to this
Agreement. The parties acknowledge and agree that neither party shall issue
any press release or distribute any promotional materials concerning this
Agreement, the subject matter hereof, the business relationship set forth
herein, or containing the name, logos, trademarks or other intellectual
property of the other party without the prior written consent of the other
party, such consent not to be unreasonably withheld or delayed; provided,
however, that the foregoing will not restrict either party from making
press releases about their respective products and services that do not
include a reference to the other party.
b Success stories. Developer agrees to identify satisfied customers and work
with Nextel to provide references, application descriptions of the
satisfied customers, and seek promotional opportunities related to customer
success stories.
26
<PAGE>
III. DIRECT MAIL
Direct Mail - Each Party to Own Customer Base. Both Nextel and Developer may, at
any time and at their own expense, conduct a direct mail campaign to their own
customer base and/or a sub-set of their customer base highlighting the
relationship between the two companies. Direct mail materials to be included in
such a mailing must be reviewed and approved by the other party prior to
printing and mailing.
IV. DEVELOPER ON NEXTEL'S WEB SITE
Developer may be listed on Nextel's web sites, subject to the following
requirements:
- Developer applications or services must have been successfully interfaced
with the Nextel network
- Developer must participate in the Nextel Developer Program. Such
participation may include attendance at a Nextel Data Developer Training
class (or the equivalent) and passing grade on the Nextel Data Developer
Certification test. Certification or re-certification may periodically be
required, at Nextel's sole discretion.
- Nextel Third-Party Developer Agreement must be in good standing and in full
force and effect.
Developer will be listed as a Nextel Certified Developer on the Nextel Developer
web site, http://developer.nextel.com, if such listing is created.
Developer will be listed on Nextel's commercial web site, http://www.nextel.com.
Information to be included in this listing includes, but is not limited to:
Developer logo, a short description and a link to Developer web site (such
location to be specified by Developer and approved by Nextel). Listing is
contingent upon Developer submission and Nextel approval of this information.
V. NEXTEL ON DEVELOPER'S WEB SITE
a. Developer may use the Nextel Certified Developer logo on their web site
(using the Corporate Image and Identity Guidelines), once the logo is
available.
b. Nextel will have a featured space on Developer's web site. Information to
included in this posting includes, but is not limited to: Nextel logo, a
minimum of 125 words of text, a 2"x2" graphic and a link to the Nextel
commercial web site, http://www.nextel.com. Developer has sole authority to
approve information submitted by Nextel for posting on Developer's web site.
VI. APPLICATION DOCUMENTATION
Developer may utilize Nextel-written and approved documentation in Developer's
user guide or web-based user documentation. Developer is required to submit all
documentation that mentions
27
<PAGE>
Nextel's name or service to Nextel for review and approval, which consent shall
not be unreasonably withheld or delayed.
VII. CUSTOMER TRAINING
Developer will bear the cost and responsibility of training customers on
Developer's product or service. Nextel will bear the cost and responsibility of
training customers on the Nextel phone and service.
VIII. SALES ACTIVITIES/SUPPORT
a. Collateral distribution to Nextel Sales channels. Developer will make
collateral materials available to Nextel's distribution channels, both direct
and indirect. Collateral material to be provided should include, but not be
limited to:
- Customer profile. Description of target customer by market, job function,
demographic or appropriate definition. Description of customer needs that
are filled by Developer product.
- Sales Bulletin. Description of Developer product or service and how it
solves the customers' needs.
Nextel would prefer for Developer to take advantage of Nextel's third-party
collateral distribution system, which supports web-based ordering of
collateral materials by Nextel representatives. If Developer chooses to
utilize Nextel's collateral distribution system, Developer will bear both the
collateral expense (cost to design, produce and print) as well as
distribution fees imposed by Nextel's collateral distribution vendor. Nextel
agrees, in good faith, to request that Nextel pricing for this service be
extended to Developer, but cannot guarantee that the third-party collateral
distributor will honor this request.
Should Developer decide not to take advantage of Nextel's third-party
collateral distribution system, Developer agrees to develop a collateral
distribution process which will ensure simplified ordering and prompt
delivery of requested collateral items to Nextel's distribution channels.
b. Electronic Sales Aids. Developer will make the following electronic sales
tools available for distribution to Nextel distribution channels through
Nextel's intranet distribution support web sites:
- PowerPoint charts for use by Sales and Sales Engineers in describing the
Developer application. Charts will posted internally on Nextel Sales
information distribution Intranet for confidential access by Nextel
employees only.
- Web site URLs to refer the customer for further information.
- Demonstration account login/password - for a minimum of 50 simultaneous
sessions.
- Automated Demonstration for a minimum of 50 simultaneous sessions
28
<PAGE>
IX. SALES LEAD PROCESSING
Nextel Sending Leads to Developer
Developer should be able to receive inbound leads from Nextel in one of three
ways:
- electronically (i.e. by e-mail), or
- via an inbound telephone number, or
- at Nextel's sole discretion, through a centralized point (such as a password
protected web site) where Nextel sales reps can submit leads to all
Developers.
Nextel, at its sole discretion will determine the distribution method for sales
leads provided to Developer. It is the responsibility of the Developer to
provide Nextel with an e-mail address for lead submissions and to provide
updates to this e-mail address as needed. If Developer is unable to receive
leads electronically, Developer must provide Nextel with a single telephone
number (preferably toll-free) at which Nextel will leave sales lead information.
It is the responsibility of Developer to update Nextel with any changes to this
telephone number. Periodically, Nextel may solicit Developer for a status of the
leads that were received from Nextel as identified in Exhibit D.
Developer will provide to Nextel their lead submission e-mail address or their
inbound lead telephone number prior to controlled availability of the service.
Developer Sending Leads to Nextel
Developer will have access to sales.nextel.com, where they will be able to
submit leads to Nextel (a user name and password will be provided later)
If Developer is unable to access the sales.nextel.com site, the Developer may
submit leads to the following email address: NOL_Support@nextel.com
Nextel will provide required content for sales leads received from Developer.
Minimum content will include Developer Salesperson name and phone number,
customer name, company name, and pertinent contact information. If Developer
salesperson would prefer to be contacted prior to the customer being contacted,
this should clearly be stated on the lead provided to Nextel. Developer will be
required to provide some customer specific information to allow for accurate
lead status tracking. Nextel may, at its sole discretion, change the required
content for sales leads from time to time.
Both parties agree to make every effort to respond to every sales lead provided
by the other party within two (2) business days of receipt of the lead. Response
will be in the form of e-mail, phone call or visit to the Sales Prospect/or
referring company's salesperson (whichever is specified in the submitted lead).
When a sales lead is provided, the party receiving the lead will contact the
Sales Prospect and evaluate whether their Application or Service meets the
customer's needs. Party receiving the sales lead will provide the Sales Prospect
with a demonstration or appropriate evaluation method. During this demonstration
or evaluation, a party receiving the lead agrees to present to the Sales
Prospect information about the Application or service of the party who provided
the lead.
29
<PAGE>
Both parties acknowledge that the Sales Prospect has the ultimate purchasing
decision, and may choose a different Application or wireless Service to support
their business needs. Both parties acknowledge that nothing herein shall
obligate or require the other to do business with a Sales Prospect if the other
party desires not to deal with such Sales Prospect for any reason whatsoever; in
such instances the party receiving the lead must inform the other party within
two (2) business days that they will not respond to the lead. Neither party
shall have any right to bind the other party to make a sale.
X. PREFERRED CARRIER FOR iDEN NETWORK CUSTOMER TRIAL
Developer shall make use of Nextel as the preferred wireless service provider in
a variety of business, vertical, and consumer markets.
XI. PRODUCT DEMONSTRATION STRATEGY
Developer may not engage in any marketing activity for analysts or reporters
until Commercial Launch of the Application and Services, as defined in Section
10, without previous written consent from Nextel.
XII. PREFERRED WIRELESS CARRIER FOR DEVELOPER'S CORPORATE USE
Developer shall make commercially reasonable efforts to use of Nextel as the
preferred wireless service provider.
30
<PAGE>
EXHIBIT D
REPORTING REQUIREMENTS
Nextel and Developer agree to provide the reports listed below. Each report must
be delivered within thirty (30) calendar days of the end of the applicable
reporting period.
Nextel and Developer also agree to corrects any errors or discrepancies in
reports issued during a calendar quarter within thirty (30) days of the end of
the quarter.
The content of such monthly reports shall be deemed Confidential Information of
Nextel and Developer and shall be subject to the restrictions set forth in the
Mutual Non-Disclosure Agreement executed between Nextel and Developer.
I. DEVELOPER REPORTS
I.a. SALES REPORTS
Lead Tracking Report. Developer will provide Nextel with a monthly report
containing the following information, in soft copy. At some point, Nextel and/or
Developer may implement an automated method to process sales leads. It is
possible that such an automated system may provide some or all of the lead
tracking information requested below. Nextel and Developer agree to re-visit
this reporting requirement should such a system become available. In the absence
of such a system, however, Developer is required to provide this information on
a monthly basis.
- Number of Developer leads received from Nextel
- Number of Nextel leads that resulted in a sale for Developer including number
of companies sold and number of subscribers sold
- Number of Developer leads generated for Nextel from co-marketed materials
- Number of Developer product orders/sales that were referred by Nextel from
customers contacting Developer via Nextel
I.b. CUSTOMER CARE REPORT
Developer will provide Nextel with a monthly report containing the following
information, in soft copy: As outlined in Exhibit A-1.
I.c. OPERATIONS REPORTS
Weekly Issue Tracking Report. Developer will provide Nextel's NOC with a monthly
report containing the following information, in soft copy:
As outlined in Exhibit A-1.
31
<PAGE>
II. NEXTEL REPORTS
II.a. SALES REPORTS
Lead Tracking Report. Nextel will provide Developer with a monthly report
containing the following information, in soft copy. At some point, Nextel and/or
Developer may implement an automated method to process sales leads. It is
possible that such an automated system may provide some or all of the lead
tracking information requested below. Nextel and Developer agree to re-visit
this reporting requirement should such a system become available. In the absence
of such a system, however, Nextel is required to provide this information on a
monthly basis.
- Number of Nextel leads received from Developer
- Number of Developer leads that resulted in a sale for Nextel including
number of companies sold and number of subscribers sold
- Summary of reasons for non-sales from Nextel leads
- Number of Nextel leads generated for Developer
32