Exhibit 10.17
TELEMATICS SERVICES
AGREEMENT
This Telematics Services Agreement
(“Agreement”) is made effective as of June 4, 2007
(the “Effective Date”) by and between Hughes Telematics
Inc., a Delaware corporation with a principal address at 41
Perimeter Center East, Suite 400, Atlanta, Georgia 30346
(“HTI”) and DaimlerChrysler Company LLC, a Delaware
limited liability company with a principal address at 1000 Chrysler
Drive, Auburn Hills, Michigan 48326-2766
(“DCC”).
RECITALS
(A) HTI is in the business of, among
other things, providing telematics services.
(B) DCC is in the business of, among
other things, manufacturing, marketing and selling automobiles
throughout the United States of America.
(C) HTI desires to provide certain
telematics services in DCC vehicles that have factory-installed
equipment capable of receiving those services.
(D) DCC is willing to
factory-install (or have factory-installed) equipment capable of
receiving those telematics services in DCC vehicles, and to let HTI
deliver those services to DCC vehicles, on the terms and conditions
set forth in this Agreement.
AGREEMENT
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, HTI and DCC hereby agree as follows:
(a) Defined Terms . In
addition to the terms defined elsewhere in this Agreement, the
defined terms set forth below and used in this Agreement will have
the meanings set forth below unless the context otherwise requires.
The definitions in this Agreement apply equally to the singular and
plural forms of the defined terms.
“Additional Excluded
Telematics Agreement” has the meaning set forth in
Section 2(g) of this Agreement.
“Additional Service”
means any telematics service that (i) consists (or would upon
the initiation thereof and thereafter consist) of either *** and
(ii) is (or would upon the initiation thereof and thereafter
be) provided using an Embedded Cellular Technology Device installed
as original equipment by DCC or its vehicle manufacturing
Affiliates.
“Affiliate” of a Person
means a Person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, such Person. As used in this definition, the term
“control,” including the correlative terms
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“***” denotes language for which
HUGHES Telematics, Inc. will request confidential treatment
pursuant to the rules and regulations of the Securities Act of
1933, as amended.
“controlling”, “controlled
by” and “under common control with”, means the
possession, directly or indirectly, of the power to direct or cause
the direction of management or policies (whether through ownership
of securities or any partnership or other ownership interest, by
contract or otherwise) of a Person.
“Agreement” means this
agreement, including all exhibits attached hereto, as such
agreement may be amended, supplemented, restated or otherwise
modified from time to time in accordance with the terms
hereof.
“Ancillary Fees” means
any and all fees or costs assessed by any third-party, including
pass-throughs of taxes or other charges imposed by Governmental
Entities (including Surcharges), that are charged by HTI to a
Subscriber, in each case, in a manner consistent with the practices
of other telematics services providers or telecommunications
companies, other than through the inclusion of such costs in the
applicable Subscription Fee.
“Approved Additional
Service” has the meaning set forth in Section 2(f) of
this Agreement.
“Approved Data” has the
meaning set forth in Section 10(c) of this
Agreement.
“AQP” is abbreviation
for Advanced Quality Planning.
“Authorized Supplier”
means, for any component to be installed in a DCC Vehicle, a
supplier approved by DCC with respect to the applicable
component.
“BUB” means the back-up
battery listed as a Dedicated Component on Exhibit K.
“Business Day” means any
day other than a Saturday, Sunday or a day on which banks in the
City of Detroit are authorized or regulated to close.
“Change in Control
Event” means any event or sequence of events that results in
*** other than DCC or its Affiliates acquiring either (x) more
than*** of the outstanding capital stock of HTI on a fully diluted
basis or (y) securities representing more than *** of the
voting power of HTI.
“Commencement Date”
means June 16, 2009.
“Confidential
Information” has the meaning set forth in Section 16(a)
of this Agreement.
“Current Subscriber”
means a Subscriber who, as of any relevant point in time, has a
then-current subscription for the PASS Service, any Approved
Additional Service or any Other Telematics Service.
“DCC” has the meaning
set forth in the introductory paragraph of this
Agreement.
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“DCC Indemnitees” has
the meaning set forth in Section 15(a) of this
Agreement.
“DCC
Vehicle” means a vehicle that is (i) either
(A) manufactured by DCC for sale within the Territory and is
branded by DCC as a Chrysler, Dodge or Jeep
®
vehicle or any
replacements of such brands, or (B) a vehicle manufactured for
DCC for sale within the Territory that is a replacement of any of
the models referenced in clause (i)(A) of this definition of
“DCC Vehicle” if such vehicle is branded by DCC as a
Chrysler, Dodge or Jeep ® vehicle or any replacements of
such brands, and (ii) listed on Exhibit D-1 from time to
time.
“Dealer” means any
dealer or dealer group authorized by DCC that markets, sells or
leases any new or pre-owned DCC Vehicle.
“Dedicated Component”
means a component that is identified in Exhibit K to this
Agreement.
“Dispute” has the
meaning set forth in Section 28(a) of this
Agreement.
“Effective Date” has the
meaning set forth in the introductory paragraph of this
Agreement.
“Effective Vehicle Net
Shortfall” has the meaning set forth in Exhibit D-2 to this
Agreement.
“Embedded Cellular
Technology” means transmission and reception via a device
installed as original equipment by DCC or its vehicle manufacturing
Affiliates in a DCC Vehicle of wireless signals using communication
networks that are based on *** and shall expressly exclude
***.
“Embedded Cellular Technology
Device” means a device via which transmission and reception
of wireless signals take place using communication networks that
are based on ***, but expressly excluding ***.
“Enabled Vehicle” means
any DCC Vehicle with a factory-installed HTI Telematics
Communicator and other Dedicated Components.
“Enabled Vehicle Breach”
has the meaning set forth in Exhibit D-2 to this
Agreement.
“Excessive Use Charges”
has the meaning set forth in Section 3(c) of this
Agreement.
“Executive Steering
Committee” has the meaning set forth in Section 21(a) of
this Agreement.
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“Existing Telematics
Agreements and Programs” has the meaning set forth in
Section 2(f) of this Agreement.
“Fleet Service” means an
Approved Additional Service which is provided to owners or lessees
of DCC Vehicles who operate a commercial fleet of vehicles, with
respect to such vehicle fleet. “Fleet Service” also
shall include a package of services contemplated by the preceding
sentence even if offered along with one or more telematics services
that are part of the PASS Service, but only when provided to owners
or lessees of DCC Vehicles who operate a commercial fleet of
vehicles, with respect to such vehicle fleet.
“Force Majeure Event”
has the meaning set forth in Section 37(a) of this
Agreement.
“Governmental Entity”
means any federal, state or local government or any regulatory body
or political subdivision thereof.
“HTI” has the meaning
set forth in the introductory paragraph of this
Agreement.
“HTI Indemnitees” has
the meaning set forth in Section 15(b) of this
Agreement.
“HTI Operational System”
means all *** required, in conjunction with the HTI Telematics
Communicators, to create a full service offering to Subscribers of
the PASS Service, any Approved Additional Services and any Other
Telematics Services.
“HTI System” includes
the HTI Telematics Communicator and the HTI Operational
System.
“HTI Telematics
Communicator” means a device capable of receiving the PASS
Service within the Territory and provided by an Authorized Supplier
(it being understood that the HTI Telematics Communicators may be
capable of receiving services in addition to the PASS
Service).
“Indemnified Party” has
the meaning set forth in Section 15(c) of this
Agreement.
“Indemnifying Party” has
the meaning set forth in Section 15(c) of this
Agreement.
“Intellectual Property”
means ***.
“JTP” means
***.
“Law” means any federal,
state or local law, statute, code or ordinance, or any rule or
regulation promulgated pursuant thereto.
“Marks” has the meaning
set forth in Section 19 of this Agreement.
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***.
“MCG Vehicle” means a
vehicle that is manufactured by or for MBUSA or its Affiliates
(other than DCC) for sale within the Territory and is branded as a
Mercedes vehicle.
“Milestone Requirement”
has the meaning set forth in Section 13(a) of this
Agreement.
“Model Year” means, with
respect to DCC Vehicles, the annual production period for the DCC
Vehicles, as determined by DCC and as identified by the year in
which such production ends, which “Model Year” shall,
if production for all vehicles for such “Model Year”
does not end on the same date, be deemed to end on the date on
which production of the last vehicle produced for such “Model
Year” ends.
“Mopar” means the global
parts and service division of DaimlerChrysler Motors Company LLC,
an Affiliate of DCC.
“Multi-Cause Action”
means a demand, action, cause of action, lawsuit or claim that
alleges loss or damage caused by both Parties.
“Non-Disclosure
Agreement” means that certain Non-Disclosure Agreement, with
an effective date of ***, by and between DaimlerChrysler
Corporation and HTI.
“Operating Committee”
has the meaning set forth in Section 21(b) of this
Agreement.
“Other Telematics
Service” has the meaning set forth in Section 8 of this
Agreement.
“Owner Information”
means *** of the DCC Vehicle.
“Party” means HTI or
DCC; and “Parties” means HTI and DCC.
“PASS Service” means the
personal assistance safety services described in Exhibit A to this
Agreement.
“PCS Agreement” has the
meaning set forth in Section 10(b) of this
Agreement
“Person” means any
natural person, organization, partnership, limited liability
company, corporation, other legal entity or Governmental
Entity.
“Separate Intellectual
Property” has the meaning set forth in Section 14(a) of
this Agreement.
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“Shared Component” means
any of the components identified on Exhibit L to this
Agreement.
“Speaker” means the
speaker listed as a Dedicated Component on Exhibit K.
“Subscriber” means any
Person who has subscribed for the PASS Service, any Approved
Additional Services or any Other Telematics Services, in each case,
in an Enabled Vehicle, whether or not such Person is the original
owner or lessee of such Enabled Vehicle.
“Subscriber Agreement”
means the agreement between HTI and a Subscriber pursuant to which
the Subscriber subscribes for certain services to be provided by
HTI.
“Subscriber Vehicle”
means any Enabled Vehicle owned by, or leased to, a Current
Subscriber.
“Subscription Fee” means
the fees (other than Ancillary Fees and Excess Use Charges) charged
by HTI to a Subscriber for the PASS Service, Approved Additional
Services and Other Telematics Services, but does not include fees
charged for Fleet Services.
“Surcharges” means
***.
“TCU” means the
telematics communication unit which is synonymous with the HTI
Telematics Communicator.
“Technical
Specifications” has the meaning set forth in
Section 4(e) of this Agreement.
“Telematics Package”
means a specific bundle of Telematics Services (and, at HTI’s
option, Other Telematics Services) to be offered to purchasers and
lessees of DCC Vehicles.
“Telematics Services”
means (a) the PASS Service, (b) any Approved Additional
Services and (c) all related infrastructure and support
services as outlined by DCC and contained in the Technical
Specifications listed in Exhibit G and in Exhibit B; but shall not
include any service described in clauses (a) through
(c) above when used for testing, demonstration, development or
research or for data collection, recording or transmission in
connection with testing, demonstration, development or research or
for any other purpose incidental thereto.
“Term” has the meaning
set forth in Section 25 of this Agreement.
“Territory” means the
fifty states of the United States of America together with the
District of Columbia.
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“Testing Protocols” has
the meaning set forth in Section 7(a) of this
Agreement.
“Trigger Event” has the
meaning set forth in Section 14(b) of this
Agreement.
***.
“Vehicle and Subscriber
Data” means any information regarding an Enabled Vehicle or a
Subscriber which HTI is capable of obtaining via the HTI Telematics
Communicator.
“WiMax” means
***.
“WiMax Service” means a
telematics service provided using WiMax.
(b) Other Definitional
Matters . The words “include” and
“including” will be deemed to be followed by the phrase
“without limitation” when such phrase does not
otherwise appear. The terms “herein”,
“hereof” and “hereunder” and other words of
similar import refer to this Agreement as a whole and not to any
particular section, paragraph or subdivision. All article, section,
paragraph, clause, exhibit or schedule references not attributed to
a particular document will be references to such parts of this
Agreement. All references to “$” or
“dollars” are to the currency of the United States of
America, unless explicitly stated otherwise. Upon the execution in
accordance with this Agreement of any revised exhibit to this
Agreement, the revised exhibit shall become the effective exhibit
and shall replace the previous exhibit in its entirety without the
need for further amendment of this Agreement.
(a) Start of PASS Service .
Beginning on the Commencement Date and continuing during the Term
and for such additional time periods as are provided for in
Section 27, HTI will provide to the purchasers and lessees of
all DCC Vehicles which are equipped with HTI Telematics
Communicators and for which such purchasers or lessees have
Subscriber Agreements with HTI that are then in effect, the PASS
Service. The services that make up the PASS Service are described
on the attached Exhibit A. Exhibit A may be amended, supplemented
or restated from time to time by mutual written agreement between
the Parties.
(b) Provision of the PASS Service
to Enabled Vehicles . On and from the Commencement Date, HTI
will provide the PASS Service in each Enabled Vehicle that is also
a Subscriber Vehicle in accordance with the standards and service
levels set forth in this Section 2 and in Exhibit B for each
of the services that make up the PASS Service. Exhibit B may be
amended, supplemented or restated from time to time by mutual
written agreement of the Parties. HTI will make the PASS Service
available to each Subscriber Vehicle that is also a DCC Vehicle 24
hours a day, seven days a week, irrespective of where the
Subscriber Vehicle is located within the Territory, exempting
issues related to cellular coverage or other circumstances beyond
HTI’s means of control.
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(c) Standards for the PASS
Service . HTI will ensure that the PASS Service meets or
exceeds the specific service levels in Exhibit B and will use ***
to maintain *** the PASS Service, including with respect to the
price and quality thereof. Additionally, HTI will use *** to ensure
that Subscribers are satisfied with the PASS Service.
(d) Commencement . HTI will
make the HTI Operational System fully operational and the PASS
Service available to all Subscribers in Enabled Vehicles not later
than June 16, 2009 in accordance with and subject to the terms
of this Agreement. Furthermore, the HTI Operational System shall be
fully operational and the PASS Service available to *** as shown on
Exhibit N.
(e) Costs and Expenses . ***,
HTI shall be required to develop technically feasible changes as
shall be determined by HTI, but subject to approval by DCC’s
change notice process, to avoid the interruption in the provision
of such telematics services via such HTI Telematics Communicators
and shall notwithstanding anything contained in Section 37 to
the contrary, make such upgraded HTI Telematics Communicators
available to applicable Subscribers (it being understood that
(i) HTI has no obligation to make changes required to provide
telematics services not originally available to DCC Vehicles
containing the HTI Telematics Communicator in question when such
DCC Vehicles were originally sold or leased, (ii) HTI shall
not be responsible for the cost of retrofitting or replacing
existing HTI Telematics Communicators in connection with upgrades
contemplated by this Section 2(e), and shall not be required
to offer the upgraded HTI Telematics Communicators to customers at
a discounted cost and (iii) HTI shall supply DCC with
DCC’s requirement of such upgraded HTI Telematics
Communicators, at ***, for factory installation thereof in new DCC
Vehicles). HTI shall be solely responsible for, and will timely
make and implement, ***, any changes required by any Governmental
Entity to the HTI Operational System or to the way in which
Telematics Services are to be provided (other than changes in the
HTI Telematics Communicators which are governed by the preceding
sentence) to avoid any interruption in telematics services provided
pursuant to this Agreement to Subscribers who have implemented any
necessary hardware upgrades. In connection with such changes
required by a Governmental Entity, the Parties will in good faith
consider modifications to Exhibit A and Exhibit B as necessitated
thereby.
(f) Approved Additional
Services . As used in this Agreement, the term “Approved
Additional Services” means those telematics services, other
than the PASS Service which HTI is permitted or selected to provide
***, as applicable, given in the manner set forth in Sections
2(f)(i) through 2(f)(iv) below. HTI shall provide each Approved
Additional Service in accordance with the terms applicable thereto
as set forth in this Agreement and in any amendment hereto
contemplated by Sections 2(f)(i) through 2(f)(iv) below.
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(i)
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Telematics Services Proposed
by HTI . With respect to
each Additional Service or WiMax Service proposed in writing from
time to time by HTI which is a WiMax Service or involves the use of
Embedded Cellular Technology, such Additional Service or WiMax
Service shall become an Approved Additional Service to
DCC
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Vehicles if DCC consents on a
case-by-case basis to the provision by HTI of such telematics
service via the HTI Telematics Communicator. DCC will in good faith
review each such proposal made by HTI pursuant to the preceding
sentence, which proposal shall contain all information reasonably
necessary for DCC to fully evaluate HTI’s proposal (***) and
will decide within *** from the receipt of such proposal whether it
will consent to the provision of such service by HTI or whether it
will withhold its consent based on a ***, in which case ***, the
Parties shall set forth a description of the Additional Service or
WiMax Service and the terms applicable to such Additional Service
or WiMax Service and not otherwise contained in this Agreement in
an amendment to this Agreement.
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(ii)
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Telematics
Services Proposed by DCC for DCC Use as End User
: With respect to each Additional
Service proposed from time to time by DCC which involves the use of
Embedded Cellular Technology and with respect to which DCC or its
Affiliate will be the end user of such telematics service (which
service does not involve the resale of any such service or aspect
thereof to any third-party), HTI shall offer within *** of its
receipt of DCC’s proposal to provide any such
technically-feasible service on *** terms to be negotiated and
agreed upon by HTI and DCC on a case-by-case basis. Upon mutual
agreement on the terms, the description of the service and the
agreed-upon terms applicable to such service and not otherwise
contained in this Agreement shall be set forth in an amendment to
this Agreement.
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(iii)
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Telematics Services Proposed
by DCC for Subscriber or Other Third-Party Use as End
User : With respect to
each Additional Service which involves the use of Embedded Cellular
Technology or each WiMax Service (other than WiMax Services covered
by Section 2(f)(iv)), in each case, proposed from time to time
by DCC (including telematics services the ideas for which are
proposed to DCC by third-parties) with respect to which neither DCC
nor its Affiliate will be the end user of such telematics service,
HTI shall have the right to provide such telematics service to the
end user if HTI offers to provide such telematics service on terms
that are (x) *** for the provision of such service which DCC
or its Affiliate receives from a third-party and which DCC or its
Affiliate, as applicable, is willing to accept, or
(y) acceptable to DCC or its Affiliate, as applicable. If HTI
fails under clause (x) in this Section 2(f)(iii), within
*** of its receipt of DCC’s proposal, to offer to provide
such Additional Service which uses Embedded Cellular Technology or
WiMax Service on terms that are *** which DCC or its Affiliate, as
applicable, is willing to accept, DCC or its Affiliate, as
applicable, shall be entitled to offer such Additional Service or
WiMax Service or to have third parties provide such Additional
Service or WiMax
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Service ***. If HTI is to provide
an Additional Service or WiMax Service under this
Section 2(f)(iii) to Subscribers (including prospective
subscribers) or other third parties as end users who are owners or
lessees of DCC Vehicles, following mutual agreement on the terms
with respect thereto, HTI and DCC shall set forth the description
of the Additional Service or WiMax Service and the terms applicable
to such Additional Service or WiMax Service and not otherwise
contained in this Agreement in an amendment to this
Agreement.
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(iv)
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WiMax
Service Offerings : If
DCC conducts a general solicitation for suppliers to provide
multiple WiMax Services in DCC Vehicles, HTI shall have the right
to provide such WiMax Services to the end user if HTI offers to
provide such WiMax Services on terms ***, or (y) acceptable to
DCC or its Affiliate, as applicable. Upon mutual agreement on the
terms, (A) the description of the WiMax Services and the terms
applicable to such services and not otherwise contained in this
Agreement shall be set forth in an amendment to this Agreement and
(B) the definition of Embedded Cellular Technology shall be
amended to thereafter include WiMax in its definition in
Section 1 (in the same manner as ***, including for purposes
of Sections 2(f)(i), 2(f)(ii) and 2(f)(iii)). If HTI fails under
clause (x) in this Section 2(f)(iv), within *** of
DCC’s solicitation, to offer to provide all the WiMax
Services on terms that ***, as applicable, than, *** for the
provision of such services which DCC or its Affiliate, as
applicable, is willing to accept, DCC or its Affiliate, as
applicable, shall be entitled to offer such WiMax Services or to
have third parties provide such services on terms that are ***, as
applicable, ***, than the terms of the proposal with which
HTI’s proposal was not competitive.
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If DCC or its Affiliate enters into
an agreement with a third-party, in accordance with this
Section 2(f)(iv), for such third-party to provide WiMax
Services in DCC Vehicles, ***. As an exception ***, HTI shall be
entitled to continue to provide the PASS Service and each Approved
Additional Service with respect to DCC Vehicles as of such date
(including each Approved Additional Service which HTI is then
offering and each Approved Additional Service which HTI is then
authorized to provide to DCC Vehicles in accordance with
Section 2(f)(i) or Section 2(f)(iii), but which remains
under development at such time in accordance with the terms
applicable to such Approved Additional Service) and exclusivity
shall continue to apply with respect to the PASS Service and the
Approved Additional Services pursuant to, and subject to the terms
of, Section 2(g)(i).
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(v)
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Initial
Approved Additional Service . DCC and HTI agree that the Additional Service
identified on Exhibit C shall constitute an Approved Additional
Service for DCC Vehicles and that HTI shall provide such Approved
Additional Service to DCC, and DCC shall obtain such service from
HTI, on the terms set forth herein and therein.
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(g) Exclusivity . HTI will
have exclusivity in regard to telematics services to the extent,
and only to the extent, as set forth in this Section 2(g).
Except to the extent specifically provided in Section 2(g)(i),
all HTI exclusivity in regard to telematics services shall end upon
the expiration or earlier termination of this Agreement.
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(i)
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Exclusivity
for PASS Service and Approved Additional Services
. Subject to Section 2(g)(iii)
below, HTI shall have, within the Territory, the exclusive right to
provide, and DCC shall not otherwise provide or permit any of its
Affiliates to provide, the PASS Service and each telematics service
that becomes an Approved Additional Service, in each case, in DCC
Vehicles both (1) during the Term and (2) only with
respect to each new DCC Vehicle produced, sold or leased, in each
case, within *** prior to the expiration or earlier termination of
this Agreement, during the *** period which commences on the date
such vehicle is sold or leased, including any portion of such ***
period which follows the expiration or earlier termination of this
Agreement.
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(ii)
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Exclusivity
for Embedded Cellular Technology Devices . Subject to Section 2(g)(iii) below, DCC
will not install (or have installed) or permit any of its
Affiliates to install (or have installed), as original equipment
any Embedded Cellular Technology Device (other than an HTI
Telematics Communicator) which is used by DCC or any third party
authorized by DCC to deliver Telematics Services in any DCC Vehicle
produced during the Term for sale within the Territory.
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(iii)
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Exclusivity
Limitations . The
exclusivity granted to HTI in this Section 2(g) is not
intended to restrict DCC in, and shall not limit or interfere with,
its reasonable fulfillment of, the existing and future agreements,
relationships and program participations of DCC that are listed in
Exhibit I-1 (collectively the “Existing Telematics Agreements
and Programs”); provided, however, that no amendment or
modification to the Existing Telematics Agreements and Programs
(other than any amendment or modification to a program if such
modification does not require the consent of DCC) shall expand the
limitations with respect to HTI’s exclusivity rights that
exist under, or as a result of, such Existing Telematics Agreements
and Programs as of the date hereof. If DCC or its Affiliate enters
into an agreement with a third-party pursuant to the last paragraph
of Section 2(f)(iv) (an “Additional Excluded
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Telematics Agreement”), DCC
and HTI shall add such Additional Excluded Telematics Agreement to
Exhibit I-2. ***. Furthermore, notwithstanding anything in
Section 2(g) to the contrary, if HTI fails to offer to DCC or
its Affiliate, as applicable, within the time period specified in
Sections 2(f)(ii) or 2(f)(iii) to provide the Additional Service or
WiMax Service on terms as are described in such Sections, DCC or
its Affiliate, as applicable, may thereafter enter into
non-exclusive or exclusive relationships with one or more third
parties for such third parties to provide the Additional Service or
WiMax Service that HTI failed to offer to provide; provided,
however, that such exclusivity shall not extend beyond such
Additional Service or WiMax Service, as applicable. ***.
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(h) ***
(i) ***
(j) HTI Activities Other Than
With Respect to DCC Vehicles . Nothing in this Agreement shall
limit or preclude HTI from providing any telematics services in any
vehicle other than a vehicle manufactured by or for DCC on such
terms and conditions as HTI determines in its sole
discretion.
(k) Delay . Notwithstanding
anything in this Section 2 to the contrary, HTI shall not be
responsible for delays in making the HTI Telematics Communicator,
the HTI Operational System, the PASS Service, or any Additional
Service available to Subscribers if, and to the extent, such delay
results from any action or failure under a duty to act on the part
of DCC and HTI could not reasonably avoid, overcome or mitigate the
effect of the delay.
(a) Subscriber Communication and
Agreements . HTI will *** Subscriber Agreements with each
Subscriber (including each prospective subscriber agreeing to
become a Subscriber) and will institute *** procedures designed to
handle and respond to customer questions and requests in regards to
the telematics services to be provided by HTI and with respect to
all account management issues, in each case, in a ***.
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(b) Billing . HTI will handle
all Subscriber billing and Subscriber service functions. All
billing and account management functions will be handled using
HTI’s name. If requested by DCC, HTI will prominently display
Mark(s) of DCC on any bill sent to a Subscriber, in a manner
approved in advance by DCC in writing.
(c) ***.
(d) Prices for the PASS Service
for Second and Subsequent Years . HTI will establish the
Subscription Fees and the Ancillary Fees, if any, ***; provided
that HTI must give DCC an opportunity to review any changes to
Subscription Fees, Ancillary Fees and Excessive Use Charges for the
PASS Service at least *** prior to the effectiveness of such change
and HTI shall negotiate in good faith with DCC to address any
objections DCC raises to such fees; provided, further, however,
that the ultimate determination with respect to the amount of
Subscription Fees shall be made by HTI.
(e) Subscriber Relationship .
HTI shall have primary responsibility for managing the relationship
with Subscribers. HTI’s responsibilities will include:
(1) executing Subscriber Agreements (containing all
disclosures required by all applicable Laws) (with such assistance
as is to be provided by DCC as set forth herein), (2) handling
all account management functions in accordance with Exhibit B
hereto, and (3) dealing with all customer billing
matters.
(f) Telematics Packages .
Subject to Sections 3(c) and 3(d), HTI shall have the right to
determine the composition of Telematics Packages and the terms and
conditions on which such Telematics Packages shall be made
available to Subscribers.
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4.
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HTI
TELEMATICS COMMUNICATORS AND OTHER DEDICATED
COMPONENTS
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(a) ***.
(b) Purchase and Sale of HTI
Telematics Communi
