<PAGE> 1
EXHIBIT 10.67
MONITORING SERVICES AGREEMENT
This MONITORING ServiceS Agreement is entered into and is effective
("Effective Date") as of May 19, 2000, (the "Agreement"), by and between @TRACK
Communications, Inc., a Delaware Corporation with its principal place of
business located at 1155 Kas Drive, Suite 100, Richardson, Texas 75081
(hereinafter referred to as "@TRACK"), and Criticom International Corporation, a
Minnesota corporation (hereinafter referred to as "CIC"), with its principal
place of business located at 1301 E. 79th Street, Minneapolis, Minnesota
55425-1119. @TRACK and CIC hereinafter referred to collectively as the
"Parties".
RECITALS:
WHEREAS, @TRACK is a company that designs, manufactures and markets
mobile communications, tracking, and information systems and in connection
therewith provides enhanced telecommunication services to the trucking industry;
WHEREAS, @TRACK contracted with Southwestern Bell Telephone Company,
Pacific Bell, Nevada Bell and Southern New England Telephone (hereinafter
collectively referred to as "SBC") to provide a mobile communications, tracking
and information system including certain twenty-four (24) hour roadside
emergency telecommunication monitoring and response services;
WHEREAS, @TRACK intends to contract with other customers to provide
similar services as provided to SBC;
WHEREAS, @TRACK desires to engage CIC to act as the provider of
twenty-four (24) hour emergency monitoring and response services in support of
the @TRACK's contract with SBC and in support of such other customers as @TRACK
contracts with in the future as more specifically defined below herein; and
WHEREAS, CIC and @TRACK entered into that certain Memorandum of
Understanding on April 16, 1999 whereby @TRACK engaged CIC to provide the
referenced monitoring services (the "Memorandum");
WHEREAS, as per the Memorandum, CIC and @TRACK agreed to execute a more
formal agreement to replace and supersede the Memorandum in its entirety;
WHEREAS, CIC and @TRACK intend that this Agreement serve as the more
formal agreement which replaces and supersedes the Memorandum in its entirety;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual representations and agreements set forth herein, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, @TRACK and CIC, intending to be legally bound, hereby agree as
follows:
1. DEFINITIONS:
1.1. "MONITORING SERVICE" shall mean receiving and responding to alarm
signals transmitted by Units and/or key FOB panic alarms to the
alarm monitoring central station as further defined in paragraph
3 below herein.
1.2. "SBC" shall mean and include Southwestern Bell Telephone Company,
Pacific Bell, Southern New England Telephone and Nevada Bell, and
their agents, servants, employees, directors, officers, and
representatives.
1.3. "@TRACK" shall mean and include @TRACK Communications, Inc. and
its agents, servants, employees, directors, officers, and
representatives.
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RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 2
1.4. "@TRACK CUSTOMER" shall mean a customer of @TRACK other than SBC
which purchases Monitoring Services in connection with their
purchase of Units from @TRACK.
1.5. "INTELLECTUAL PROPERTY RIGHTS" shall mean the intangible legal
rights or interests evidenced by or embodied in (1) any idea,
design, concept, technique, invention, discovery, or improvement,
regardless of patentability, but including patents, patent
applications, trade secrets, and know-how; (2) any work of
authorship, regardless of copyrightability, but including
copyrights and any moral rights recognized by law; and (3) any
other similar rights, in each case on a worldwide basis.
1.6. "CIC" shall mean and include Criticom International Corporation,
and its agents, servants, employees, directors, officers, and
representatives.
1.7. "SBC AGREEMENT" shall mean the written agreement between @TRACK
and SBC pursuant to which SBC purchased the Units and @TRACK
Service.
1.8. "@TRACK SERVICE" shall mean the enhanced services provided by
@TRACK to SBC in connection with the Units.
1.9. "TELECOMMUNICATION EXPENSES" shall mean the actual costs incurred
by CIC in communicating with the SBC vehicle occupants, a Public
Safety Answering Point, a local law enforcement or emergency
agency, and/or the designated SBC headquarters personnel via the
public switched network.
1.10. "SBC USER" shall mean an individual employee of SBC who uses a
Unit and the Monitoring Service.
1.11. "UNITS" shall mean the @TRACK mobile communications system
installed in vehicles consisting of a global positioning system
("GPS") receiver, cellular transceiver, vehicle communications
processor, GPS antenna, cellular antenna and key fob panic alarm.
1.12. "USER" shall mean an individual employee of a @TRACK Customer who
uses the Monitoring Service.
2. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SEC.]
2.1. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
2.2. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
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RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 3
3. SERVICES PROVIDED BY CIC
3.1. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
3.2. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
3.3. DISPATCH AUTOMATION SYSTEM. CIC shall coordinate the development
and integration of an automation package to serve SBC as per
Exhibit "C" attached hereto.
3.4. COMMUNICATION LINES. CIC shall maintain telephone and/or other
communication line(s) as necessary to provide the Monitoring
Services. CIC shall be responsible for all costs associated with
maintaining the telephone and/or other communications lines
necessary to provide the Monitoring Services; provided; however,
that @TRACK shall be responsible for any charges for frame relay
or T-1 service between CIC and @TRACK.
3.5. U.L. APPROVAL. CIC shall maintain an Underwriter's Laboratories
approved listing for commercial fire for a monitoring center,
although @TRACK understands that Underwriter's Laboratories does
not provide listing services for mobile security central
stations. If Underwriter's Laboratories listing for mobile
security becomes available, and @TRACK requires it, then CIC
shall obtain it at that time.
3.6. DATABASE ACCESS. CIC shall provide @TRACK with daily electronic
access to SBC or other @TRACK Customer alarm history, statistical
information and database as defined in the Exhibit C.
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RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 4
3.7. COMPLIANCE WITH LICENSING STATUTES. CIC represents that it is
licensed at the state level to provide Monitoring Services where
applicable in the forty-eight (48) contiguous states of the
United States of America except for the states of Utah and
Virginia. CIC will make every reasonable attempt to ensure
PSAP(s) do not deny response based on the absence of appropriate
licenses and/or certifications. If CIC is required to obtain
additional licenses, @TRACK and CIC will reach agreement on
reimbursement to CIC for said additional required licenses.
3.7.1. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SEC.].
4. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SEC.].
4.1. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
4.2. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
4.3. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
4.4. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
4.5. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
PAGE-4
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 5
5. @TRACK'S OBLIGATIONS
5.1. PAYMENT. @TRACK shall pay CIC for the Monitoring Services at the
rates set forth in Exhibit "A" attached hereto within thirty (30)
days from the date of receipt of a written invoice from CIC.
5.2. NO MISREPRESENTATION. @TRACK agrees not to represent as "CIC
Service" any Monitoring Services which are not specified in
EXHIBIT "A": PRICE LIST. CIC may, in its sole discretion, offer
new Monitoring Services and make them available to @TRACK at
prices and terms which shall be mutually agreed upon by both
Parties.
5.3. NOTIFICATION OF SBC USER OR USER COMPLAINTS. @TRACK shall
promptly notify CIC of any complaint or question regarding the
Monitoring Services.
5.4. UNIT DESIGN, INSTALLATION, IMPLEMENTATION AND @TRACK SERVICES.
CIC shall have no responsibility for the sale, design,
installation, maintenance or repair of equipment located as part
of the Units of the SBC Users or other Users. @TRACK shall be
solely responsible for all risks and expenses incurred in
connection with its actions in the sale or use of Units or
Monitoring Services or any other acts of @TRACK. @TRACK shall act
in all respects on its own account and shall be solely
responsible for establishing the rates, terms and conditions
under which it will sells Units, @TRACK Service and Monitoring
Services to @TRACK Customers, including but not limited to, any
credit verification, deposits, billing, collection,
consolidation, billing and service complaints, bad debts, and
fraudulent or illegal or inappropriate use by any person of any
Units, @TRACK Service or Monitoring Services.
5.5. FALSE SIGNALS. @TRACK agrees to install and maintain Units using
high quality equipment, techniques, and practices. @TRACK agrees
to make every reasonable effort to correct and control Unit or
User deficiencies causing false signals. If any Unit sends an
unreasonable number of false signals which materially impairs
CIC's ability to provide the Monitoring Services, CIC may
temporarily suspend the provision of Monitoring Services to the
malfunctioning Unit.
5.6. TAXES. @TRACK agrees to pay any and all sales, use or business
taxes or impositions by Municipal, State, Federal and/or other
authorities in connection with the Monitoring Services to be
provided by CIC except for sales, use or business taxes assessed
on the net income or gross revenues of CIC.
5.7. REGULATORY AGENCY NOTICES. @TRACK and/or @TRACK with CIC's
assistance, shall provide and mail, at @TRACK's own expense, all
announcements or notices required to be mailed to SBC Users or
Users as required by any regulatory agency.
5.8. NOTICE OF TERMINATION OF @TRACK CUSTOMER CONTRACTS. @TRACK shall
notify CIC of termination of the SBC Agreement and/or any @TRACK
Customer Agreement, or any modification of the SBC Agreement
and/or any @TRACK Customer Agreement if the modification requires
CIC to alter the data or instructions on file at CIC's central
station. Failure to provide such notification may result in
termination of this Agreement as to SBC and/or any such @TRACK
Customer. @TRACK agrees to furnish to CIC all changes, revisions,
and modifications to SBC and/or any @TRACK Customer information
in writing electronically.
6. INTELLECTUAL PROPERTY. CIC shall own all right, title and interest in
and to any Intellectual Property owned by CIC including any
modifications thereto. @TRACK shall retain all right, title and
interest in and to any Intellectual Property owned by @TRACK including
any modification thereto. No other rights, and
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RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 6
particularly licenses, to trademarks, inventions, copyrights, or
patents are implied or granted to either CIC or @TRACK under this
Agreement except as provided herein.
6.1. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
6.2. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
6.3. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
7. JOINT OBLIGATIONS
7.1. PUBLIC RELATIONS. Each Party hereto will at all times give
prompt, courteous, and efficient service to the public, will be
governed in all dealings with the public by standards of honesty,
integrity, and fair dealing, and shall do nothing to discredit,
dishonor, reflect adversely upon or in any manner injure the
reputation of CIC or @TRACK.
7.2. INDUSTRY STANDARDS. Each Party hereto warrants that their
respective systems and Monitoring Services meet the high
standards of the emergency services industry.
8. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SEC.].
9. PAYMENT
9.1. @TRACK shall pay CIC for the Monitoring Services at the rates set
forth in Exhibit "A" attached hereto within thirty (30) days from
the date of receipt of a written invoice from CIC.
9.2. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
PAGE-6
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 7
9.2.1. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SEC.]
9.3. BILLING. Billing for Monitoring Services will commence upon
active monitoring of Unit as represented by the Start Date within
the signal automation application, although response Monitoring
Services may not be in effect due to lack of information.
9.3.1. Invoices for Monitoring Services shall not be prorated.
9.3.2. @TRACK shall pay to CIC all undisputed charges as invoiced
for Monitoring Services provided to @TRACK Customers as
set forth in this Agreement. @TRACK also shall provide CIC
on or before the due date, with a written explanation of
its grounds for disputing any invoiced amounts.
9.3.3. Under no circumstances will @TRACK's inability to collect
from @TRACK's Customers delay payment to CIC.
10. TERM AND TERMINATION
10.1. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
10.2. RENEWAL TERM. This Agreement shall automatically renew for
successive two (2) year terms unless one hundred and twenty (120)
days written notice of intent not to renew is provided by either
Party hereto. Both Parties agree to cooperate in the event of
termination and if necessary grant an extension if more time is
required for a smooth transition of Monitoring Services to
another service provider.
10.3. TERMINATION. In the event either Party to this Agreement commits
a material breach or defaults in any of its obligations under
this Agreement, and such breach or default has not been cured (a)
within thirty (30) days after receipt of written notice from the
non-breaching Party of monetary breach or default; or (b) within
ninety (90) days after receipt of written notice of non-monetary
breach or default, the non-breaching Party may immediately, in
addition to any remedy which may be available at law or in
equity, terminate this Agreement.
10.4. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
11. INDEPENDENT CONTRACTORS
11.1. This Agreement does not constitute that either Party is the agent
or legal representative of the other Party. Neither Party shall
have any right or authority to assume or create any obligation or
responsibility, express or implied, on behalf of or in the name
of the other, or to bind the other in
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RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 8
any manner. CIC shall be an independent contractor of @TRACK for
all purposes of this Agreement.
11.2. It is understood and agreed that CIC and its employees and
@TRACK's employees shall continue as the employees of the
respective Parties and that each Party shall cover its respective
employees with such Workers' Compensation and other insurance
(all of which are at statutory limits as a minimum condition) as
shall be required by law and such insurance shall be evidenced to
the other Party hereto by the submission of a Certificate of
Insurance to the other Party within thirty (30) days after
signing of this Agreement. CIC shall employ, supervise and direct
all persons performing any of the Monitoring Services to be
performed by CIC under this Agreement, and such persons shall be
and shall remain the sole employees of, and subject to the
exclusive control and direction of CIC in the performance of such
Monitoring Services. @TRACK shall have no right or obligation to
control or direct any of the agents, servants or employees of
CIC, it being the intention of the Parties hereto that CIC shall
remain and be an independent contractor for all purposes of this
Agreement. CIC shall have no right or obligation to control or
direct any of the agents, servants or employees of @TRACK, it
being the intention of the Parties hereto that @TRACK shall
remain and be an independent contractor for all purposes of this
Agreement. Notwithstanding the foregoing, @TRACK shall have the
right to give such instructions to CIC as may be necessary or
advisable for the satisfactory performance of the Monitoring
Services to be rendered by CIC.
12. YEAR 2000 COMPLIANCE. @TRACK and CIC agree to comply with the
obligations contained in Exhibit "D" attached hereto.
13. CONFIDENTIALITY. The Parties' confidentiality obligations shall be
governed by the "Mutual Non-Disclosure and Confidentiality Agreement"
entered into between @TRACK and CIC on March 1, 1999.
14. LIABILITY AND INDEMNITY
14.1. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
14.2. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
14.3. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
14.4. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
PAGE-8
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 9
15. TRADE NAME AND TRADEMARK
15.1. Neither Party hereto will use the names or trade or service marks
of the other Party without the prior written consent of such
other Party nor in any way that would discredit or damage the
reputation of such other Party or its affiliates. Each Party
shall neither acquire, nor claim any right, title, or interest in
or to the other Party's trademarks or trade names through
advertising and sales of Monitoring Services or otherwise. In the
event of termination of this Agreement, each Party hereto agrees
not to register or use any service marks, trademarks and trade
names of the other Party or its affiliates, and upon such
termination or discontinuance, will surrender or abandon its use
or ownership of any service mark, trademark or trade name
confusingly similar to that of the other Party or its affiliates,
which were not owned prior to the execution of this Agreement.
16. MISCELLANEOUS
16.1. SEVERABILITY. It is agreed that if any provisions of this
Agreement will be determined to be void by any court of competent
jurisdiction, then such determination shall remain in full force
and effect unless such determination shall render either Party's
performance hereunder substantially more difficult or impossible
to perform, in which case upon the giving of proper notice this
Agreement may be terminated by the Party whose performance has
been so rendered substantially more difficult or impossible. It
is the intention of the Parties hereto that if any provision of
this Agreement is capable of two constructions only one of which
would render such provision valid, then the provision shall have
the meaning which renders it valid. Subject to the provisions of
this Section, in the event it shall hereafter not be legal for
CIC to provide the Monitoring Services, or for @TRACK to offer
the Monitoring Services through CIC to its customers, in any of
the states of the United States, then this Agreement shall
continue in full force and effect to the fullest extent permitted
by law, except that neither CIC nor @TRACK shall be obligated to
perform the prohibited acts in such places where the same remains
unlawful.
16.2. ASSIGNMENT. This Agreement shall not be assignable by either
Party without the prior written consent of the other Party which
shall not be unreasonably withheld. However, either Party may
assign this Agreement to the successor in interest to
substantially all of the assets of said Party through merger,
purchase or otherwise.
16.3. COMPLIANCE WITH LAW. All Parties to this Agreement shall comply
with all applicable federal, state, and local laws and
regulations in performing its duties hereunder.
16.4. CONFIDENTIALITY OF TERMS. Neither Party to this Agreement shall,
without written authorization of the other Party hereto, disclose
to any third Party the terms and conditions of this Agreement
except as may be necessary to establish or assert rights
hereunder or as required by law; provided, however, either Party
hereto may, on a confidential basis, disclose this Agreement to
its accountants, attorneys, and financing organizations.
Furthermore, either Party hereto may disclose the terms of this
Agreement as required by federal and state securities statutes,
rules and regulations including the Securities Exchange
Commission rules and regulations; provided, however, that such
disclosing Party will attempt to seek confidential treatment of
such portions of the Agreement which contain confidential and
proprietary information.
PAGE-9
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 10
16.5. SECTION HEADINGS; EXHIBITS. The Section and subsection headings
used herein are for reference and convenience only, and shall not
enter into the interpretation hereof.
16.6. ENTIRE AGREEMENT; AMENDMENT. This instrument contains the entire
and only agreement between the Parties regarding the subject
matter herein, and no oral statements or representations or prior
written matter not contained in this instrument shall have any
force or effect. This Agreement shall not be modified in any way
except by a writing subscribed by both Parties by their duly
authorized representatives.
16.7. NOTICES. Unless otherwise specifically provided, all notices
required or permitted by this Agreement shall be in writing and
may be delivered personally, or may be sent by facsimile or
certified mail, return receipt requested, to the following
addresses, unless the Parties are subsequently notified of any
change of address in accordance with this Section 16.7:
If to @TRACK:
@TRACK Communications, Inc.
1155 Kas Drive, Suite 100
Richardson, Texas 75081
Attention: Todd Felker, Senior Vice President, Sales, Marketing &
Account Management
with copy to: General Counsel
Facsimile: (972) 301-2263
If to CIC:
Criticom International Corporation
1301 E. 79th Street
Minneapolis, Minnesota 55425-1119
Attn: CEO
Facsimile (612) 854-5510
With a copy (which will not constitute notice) to:
Mark Moxness
General Counsel
Krass Monroe, PA
Suite 1100, Southpoint Office Center
1650 W. 82nd St.
Bloomington, Minnesota 55431-1447
Any notice shall be deemed to have been received as follows: (1)
by personal delivery, upon receipt; (2) by facsimile upon
receipt; (3) by certified mail, five (5) business days after
delivery to the U.S. postal authorities by the Party serving
notice. If notice is sent by facsimile, a confirming copy of the
same shall be sent by mail to the same address.
16.8. NO AGENCY. The relationship between CIC and @TRACK is not one of
joint venture, partnership, agency or employment, and nothing in
this Agreement shall be construed to create any such relationship
between the Parties hereto.
16.9. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all
of which together shall constitute one and the same instrument.
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RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 11
16.10. WAIVER. The failure of either Party to enforce at any time, or
for any period, the provisions of this Agreement shall not be
construed as a waiver of such provisions or of the right of such
Party thereafter to enforce each and every such provision. No
claim or right arising out of the breach or default of this
Agreement may be discharged in whole or in part by a waiver or
renunciation of such claim or right unless such waiver or
renunciation is in writing and signed by the aggrieved Party.
16.11. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
16.12. ATTORNEY'S FEES. If any action at law or in equity shall be
necessary to enforce or interpret the terms of this Agreement,
the prevailing Party shall be entitled to reasonable attorneys'
fees, costs and necessary disbursements, in addition to any
other relief to which such Party may be entitled.
16.13. GOVERNING LAW; CONSENT TO JURISDICTION & VENUE. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO THE CONFLICT
OF LAWS (RULES) OR CHOICE OF LAWS (RULES) THEREOF. IF CIC BRINGS
ANY LITIGATION AGAINST @TRACK WITH RESPECT TO OR ARISING OUT OF
THE TERMS OF AND THE TRANSACTIONS AND RELATIONSHIPS CONTEMPLATED
BY THIS AGREEMENT, CIC AGREES TO BRING SUCH LAWSUIT EXCLUSIVELY
IN THE STATE DISTRICT COURT RESIDING IN DALLAS COUNTY, DALLAS,
TEXAS (OR IF APPLICABLE, THE FEDERAL DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION). IF @TRACK BRINGS
ANY LITIGATION AGAINST CIC WITH RESPECT TO OR ARISING OUT OF THE
TERMS OF AND THE TRANSACTIONS AND RELATIONSHIPS CONTEMPLATED BY
THIS AGREEMENT, @TRACK AGREES TO BRING SUCH LAWSUIT EXCLUSIVELY
IN THE STATE DISTRICT COURT RESIDING IN HENNEPIN COUNTY,
MINNESOTA (OR IF APPLICABLE, THE FEDERAL DISTRICT COURT FOR THE
__________ DISTRICT OF MINNESOTA).
16.14. SURVIVABILITY. In the event of termination or expiration of
this Agreement, Paragraphs 4, 6, 13, 14, 15 and 16 shall survive
and remain in full force and effect as necessary.
FORCE MAJEURE. Each Party hereto shall be excused from performance
hereunder for any period and to the extent that it is prevented from
performing any action pursuant hereto, in whole or in part, as a result
of delays beyond its control caused by the other Party or by an act of
God or the public enemy, fire, floods, epidemics, quarantine
restrictions, civil disturbance, court order, labor dispute, third
party nonperformance (except to the extent such third party
nonperformance is wrongfully caused by a Party to this Agreement), or
other cause beyond its control, including without limitation failures
or fluctuations in electrical power, heat, light, air conditioning,
lack of capacity on the networks or network outages. Additionally, CIC
shall not be liable to @TRACK if changes, alterations or modifications
in the @TRACK's Units, @TRACK's facilities, operations, network
equipment, or procedures made in the ordinary course of business render
the Monitoring Services inoperable.
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RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 12
IN WITNESS THEREOF, the Parties have caused this Agreement to be signed
below by their duly authorized representatives:
@TRACK COMMUNICATIONS, INC.,
A DELAWARE CORPORATION
By: Jana Bell
--------------------
Title: President
-----------------
Date: 5/23/2000
------------------
CRITICOM INTERNATIONAL CORPORATION,
A MINNESOTA CORPORATION
By: Curt Quady
--------------------
Title: President
-----------------
DATE: May 25, 2000
------------------
PAGE-12
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 13
EXHIBIT A
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
PAGE-1
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 14
EXHIBIT B
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
PAGE-1
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 15
[TRACK COMMUNICATIONS LETTERHEAD]
EXHIBIT C
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
The information contained in this manual if confidential and proprietary to
@Track & IDC
<PAGE> 16
EXHIBIT D
YEAR 2000 COMPLIANCE
DEFINITIONS
The following definitions apply to terms used in this Exhibit D: Year 2000
Compliance. "System" means the software products (including firmware),
computerized hardware products (whether general or special purpose),
documentation, data, and other similar or related items of the automated or
computerized system(s) that are provided by or through @TRACK or CIC pursuant to
this Agreement for the provision of Monitoring Services, or any component
thereof, and any services provided by or through @TRACK or CIC in connection
therewith. However, the term "System" shall not include non-compliant third
party products interoperable with or non-compliant third party services provided
in connection with either CIC's or @TRACK's products and services including but
not limited to cellular carriers and their networks, long distances carriers and
their networks, the public switched telephone network, computer systems upon
which either CIC's or @TRACK's software resides, and/or third party software
programs which interface and exchange data with the products of either @TRACK or
CIC.
"Calendar Related" refers to date values on the Gregorian calendar (the calendar
in use throughout most of the world), as further defined in Encyclopedia
Britannica, 15th edition, 1993, page 476), and to all uses in any manner of
those date values, including without limitation manipulations, calculations,
conversions, comparisons, and presentations.
"Date Data" means any Calendar Related data in the inclusive range January 1,
1900, through December 31, 2050, which @TRACK or CIC use in any manner.
"System Date" means the Date Data value with the System shall be able to use as
its current date while operating.
"Year 2000 Compliant" means that the System satisfies the requirements set forth
in Section 2 below.
"Year 2000 Noncompliance" means any failure of the System to be Year 2000
Compliant.
YEAR 2000 COMPLIANCE REPRESENTATIONS
@TRACK and CIC each represent that, by December 31, 1999, their respective
Systems will correctly process Calendar Related data, Date Data, and System
Data. The respective Systems will not malfunction, will not cease to function,
and will not generate incorrect dates as a result of the manipulation of such
data.
@TRACK and CIC each further represent that, in connection with providing
Calendar Related data to and accepting Calendar Related data from other
automated and/or computerized systems and users via user interfaces, electronic
interfaces, and data storage, the respective Systems will represent dates
without ambiguity as to century, provided such other automated and/or
computerized systems also represent and exchange dates without ambiguity.
@TRACK and CIC each further represent that by December 31, 1999, each will have
verified through testing that their respective Systems are Year 2000 Compliant
and that testing included, without limitation, each of the following specific
dates and the transition between those of such dates that are successive:
September 9, 1999; September 10, 1999; December 31, 1999; January 1, 2000;
February 28, 2000; February 29, 2000; March 1, 2000; December 31, 2000; and
January 1, 2001.
PAGE-1
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
<PAGE> 17
INTERFACING
On or before December 31, 1999, @TRACK and CIC will have the present capability,
which can be readily utilized, of providing Calendar Related data to and
accepting Calendar Related data from other automated and/or computerized systems
and users in a format such as, but not limited to, four-digit CCYY format, where
CC are the two digits expressing century and YY are the two digits expressing
the year within that century (e.g., 1996, 2003 and 2027). @TRACK and CIC shall
provide all necessary interfacing information describing the format utilized by
their respective Systems, if different than CCYY format.
YEAR 2000 NONCOMPLIANCE REMEDY
In the event that the respective Systems are Year 2000 Noncompliant in any
respect, the only remedy shall be as follows: @TRACK and CIC shall at no cost to
the other, correct the Year 2000 Noncompliance and provide the corrected Year
2000 Compliant System no later than 60 (sixty) days after Noncompliance has been
identified, unless otherwise agreed to by both @TRACK and CIC in writing.
PAGE-2
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties and their affiliates hereto only and is not for general
distribution within or for distribution outside their
respective companies except by written agreement.
