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EXHIBIT 10.30
LICENSE AGREEMENT
This License Agreement (the "Agreement") is entered into as of this
day of 19 , by and between SuperShuttle Franchise Corporation, a Delaware
corporation ("Licensor") and , a ("Licensee").
RECITALS
A. Licensor is a subsidiary of SuperShuttle International, Inc.
("SuperShuttle"). Licensor's affiliates and licensees operate demand responsive
shared ride shuttle services to and from airports in a number of different
cities in different locations in the United States.
B. SuperShuttle has granted to Licensor the rights to license
certain trade names, trademarks (the "Proprietary Marks") and indicia (the
"Indicia") employed by SuperShuttle in the operation of its business. Over a
period of time, SuperShuttle has advertised, promoted and publicized the
Proprietary Marks and Indicia, all of which have become favorably known to the
public, and SuperShuttle has acquired valuable goodwill therein. The public has
come to associate the Proprietary Marks and Indicia with SuperShuttle and the
services offered, sold and rendered by SuperShuttle.
C. Licensor is willing, for valuable consideration, to grant an
exclusive license to use the Proprietary Marks and Indicia, including the
goodwill associated therewith, to Licensee in Licensee's Market (as hereinafter
defined).
D. As a result of the expenditure of time, effort, skill and money,
SuperShuttle has developed and owns a unique system of transportation services
which SuperShuttle continues to develop and refine, including without
limitation, a demand responsive and/or scheduled airport shuttle system serving
under appropriate governmental authority, providing transportation to passengers
traveling to and from specific metropolitan airports and destinations within the
general markets surrounding those airports, as well as other transportation
services which may be developed in the future under the Proprietary Marks and
Indicia from time to time (the "Transportation System"). The Transportation
System includes demand responsive shared ride shuttle services, but not
executive sedan services or ordinary taxi services that are not operated as
shuttle services.
E. As a part of the Transportation System, Licensor has developed a
proprietary central reservations system through which all reservation calls must
be received. Licensor has also developed an optional proprietary
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cashiering system and is in the process of developing an optional proprietary
dispatch system. These systems utilize proprietary computer software which the
Licensor uses and licenses for use in connection with the Transportation System
(the "Software").
F. Prior to entering into this Agreement, Licensee investigated the
value of the Proprietary Marks and Indicia, and based on such investigation
desires to obtain a license to use the Proprietary Marks and Indicia from
Licensor and the Transportation System in Licensee's Market. In particular,
Licensee either has obtained the requisite permits from federal, state and local
governmental authorities to operate the Transportation System in Licensee's
Market or has investigated the procedure for doing so. Licensee is fully
familiar with and understands such governmental authorities' rules and
regulations governing the operation of the Transportation System.
NOW, THEREFORE, based on the above premises and in consideration of
the mutual covenants and agreements contained herein, the parties agree as
follows:
ARTICLE 1. LICENSE AND INITIAL FEE
Section 1. 1 Grant of License. Subject to the terms and conditions
contained in this Agreement, Licensor grants to Licensee, and Licensee accepts
from Licensor, the exclusive right and license to use Licensor's Proprietary
Marks and Indicia in connection with the Transportation System in Licensee's
Market (as hereinafter defined) subject to and in accordance with the terms set
forth herein. Licensee's right to use the Proprietary Marks and Indicia licensed
by this Agreement shall be limited to use in connection with the Transportation
System as authorized by the appropriate governmental agency or agencies having
jurisdiction in Licensee's Market over the business conducted under the
Transportation System. The currently existing Proprietary Marks and Indicia
licensed by this Agreement are graphically depicted or otherwise more fully
described in Exhibit "A" attached to this Agreement and incorporated herein by
this reference.
Section 1.2 Commencement of Operations. Licensee acknowledges the
importance to Licensor, its other licensees and the System, of the prompt and
timely commencement of operations of the Transportation System in Licensee's
Market using the Proprietary Marks and Indicia. Therefore, Licensee agrees that
it shall commence full operations to the entire area in Licensee's Market no
later then one hundred twenty (120) days following the execution of this
Agreement. Licensee further agrees and acknowledges that in order to commence
operations, Licensee must obtain all requisite permits and other operating
authority required by federal, state and local government authorities and from
the airport(s) at which it will conduct operations. Licensee represents and
warrants to Licensor that it has
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such operating authority or, has made a full investigation of the procedure for
doing so and has determined that it will be able to obtain such authority so
that it may begin to conduct full operations within such one hundred twenty
(120) day period. Licensor is granting this license in reliance on Licensee's
representations, warranties and covenants, and Licensee's failure to commence
operations as required by this Section shall be a material breach of this
Agreement, which will result in automatic and immediate termination without any
action required by Licensor. Following such automatic termination, Licensee
shall immediately cease operating the Transportation System and Licensor may
immediately begin to conduct operations in Licensee's Market or grant the right
to do so to a third party.
Section 1.3 Term. It is intended by the parties hereto that the term of
the license granted by this Agreement shall be ten (10) years, unless otherwise
extended pursuant to Article 9 of this Agreement or terminated pursuant to
Article 8 of this Agreement.
Section 1.4 Licensee's Market. Except as provided below, Licensee will
have the exclusive right to operate the Transportation System at the airport
described in Exhibit "B" which is incorporated by this reference as though set
forth in full herein. Licensee shall transport customers to and from the airport
and locations in a specific geographic area surrounding the airport and
described in Exhibit "B." This geographic area and the airport described above
are referred to in this Agreement as "Licensee's Market". Subject to having
obtained all necessary permits and operating authority, Licensee shall also
transport customers to and from the airport that is part of Licensee's Market
from locations and to destinations even if outside of Licensee's Market;
provided, however, that Licensee shall not transport customers to an airport
outside of Licensee's Market if Licensor, one of its affiliates or one of its
other licensees is operating at that airport. Licensee agrees and acknowledges
that Licensor and its affiliates and other licensees may be conducting
operations under the Proprietary Marks and Indicia and may be transporting
customers into Licensee's Market from other airports and transporting customers
from Licensee's Market to such other airports. In addition, Licensee shall also
have the right to conduct occasional charter operations originating in
Licensee's Market. Charter operations are incidental scheduled transportation
between locations other than airports. Licensee agrees and acknowledges that
Licensor, its affiliates and other licensees also occasionally conduct charter
operations originating outside of Licensee's Market, which may have destinations
in Licensee's Market.
Section 1.5 Reservation of Rights. Licensor specifically reserves all
rights not granted to Licensee hereunder. In particular, and without limiting
the generality of the foregoing, Licensor reserves the right to operate and
license others the right to operate executive sedan services, both within and
outside of Licensee's Market.
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Section 1.6 Initial License Fee. In addition to the fees required by
Article 5, Licensee shall simultaneously with the execution of this Agreement
pay to Licensor ___ Dollars ($___) as an initial license fee for use of the
Proprietary Marks and Indicia. Such fee shall be deemed fully earned by Licensor
upon execution of this Agreement by both parties and shall not be refunded, in
whole or in part, upon any termination of this Agreement, at any time, including
without limitation, termination for failure to commence operations within one
hundred twenty (120) days after execution of this Agreement, or under any other
circumstances.
ARTICLE 2. PROPRIETARY MARKS AND INDICIA
Section 2.1 Validity and Use of Proprietary Marks. Licensee hereby
acknowledges that the Proprietary Marks are valid service marks and trademarks
solely owned by SuperShuttle and that only SuperShuttle and its designated
licensees or franchisees shall have the right to use the Proprietary Marks.
Licensee will use such Proprietary Marks only so long as the license granted by
this Agreement remains in force, and only in connection with the conduct of the
Transportation System to be operated by Licensee in the manner and for the
purposes specified in this Agreement. Licensee agrees that upon expiration or
termination of this Agreement for any cause whatsoever, its rights to use the
same shall terminate. Licensee will not, either during or after the term of this
Agreement, do anything, either directly or indirectly, or aid or assist any
other party to do anything, either directly or indirectly, which would infringe
upon, harm, or contest the rights of SuperShuttle or Licensor in any of the
Proprietary Marks or in any other mark or name which incorporates the name
"SuperShuttle," or during or after the term of this Agreement, utilize any of
the Proprietary Marks or any ,marks confusingly similar thereto or aid anyone
else in so doing.
Section 2.2 Validity and Use of Indicia. Licensee acknowledges that the
Indicia are the exclusive property of SuperShuttle. Licensee shall not, either
during or after the term of this Agreement, utilize any of the Indicia except in
accordance with the terms of this Agreement, or utilize any indicia confusingly
similar to the Indicia.
Section 2.3 Future Marks or Indicia. Licensee agrees that any further
rights that may develop in any of the Proprietary Marks and Indicia in the
future, including, without limitation, trade names, trademarks, service marks or
copyrighted materials, shall inure and accrue to the benefit of SuperShuttle and
Licensor.
Section 2.4 Use of Licensor's Business Name.
(a) Licensee will operate, advertise and promote its Transportation
System in Licensee's Market under the designation "SuperShuttle" (without any
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addition of any prefix, suffix or any other name or names) or under any other
name and in the manner Licensor may from time to time designate in the
Operations Manual or otherwise and under no other name or manner whatsoever.
These restrictions will apply to all uses of the Proprietary Marks and Indicia
by Licensee, including without limitation, business cards, stationery, yellow
and white page telephone directory advertisements and otherwise. Licensee shall
not use the name "SuperShuttle" or any other of the Proprietary Marks in or as
part of the name of Licensee's corporation, partnership or other business
entity. Licensee will not license, register or purchase vans, Specialized
Equipment (as hereinafter defined), dispatch, communication and other equipment,
fixtures, products or supplies or incur any obligation or indebtedness
pertaining to the operation of its Transportation System except in its
corporate, partnership or other business name.
(b) Any application for registration by Licensee to use the
Proprietary Marks or Indicia which may be required by the laws, statutes,
regulations or rules of any governing or governmental unit or body will specify
that Licensee's use of the Proprietary Marks or Indicia is limited to Licensee's
Market and is subject to this Agreement, and that upon expiration or termination
of this Agreement, Licensee's use of the Proprietary Marks and Indicia will
likewise terminate and by virtue of said registration, no property right or
privilege to use the Proprietary Marks and Indicia is created which will extend
beyond expiration or termination of this Agreement.
Section 2.5 Confidentiality of Licensor System: Restrictive Covenants.
Licensee hereby acknowledges that all proprietary rights in and to the methods
of operations employed by SuperShuttle and Licensor and all material and
information relating to such proprietary rights now or hereafter revealed to
Licensee under this Agreement are solely owned by SuperShuttle. Licensee further
acknowledges (a) that the methods of operations and all material and information
relating thereto which are not generally known in the trade including, without
limitation, the Software and its operation, constitute trade secrets and
confidential and proprietary information of SuperShuttle which derive
independent economic value, actual or potential, from not being generally known
in the trade, (b) that they are revealed to Licensee in confidence, solely to
protect the value of the Proprietary Marks and Indicia by assuring the quality
control of Licensee's operations, and (c) that SuperShuttle and Licensor have
taken efforts reasonable under the circumstances, of which this Section 2.5 is
an example, to maintain their secrecy. Such trade secrets may include, but are
not limited to, training, operating and policy manuals, sales promotion aids,
maintenance schedules, accounting, inventory and cashiering procedures and
systems and reservations and dispatch procedures and systems, and the software
therefor, marketing reports and informational bulletins actually provided to
Licensee. Both during and after the term of this Agreement, Licensee, its
officers, directors, stockholders, employees, agents and other representatives
shall not (i) reveal any of such trade secrets or confidential or proprietary
information to any other person or entity, nor (ii) use
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any of such trade secrets and confidential and proprietary information in
connection with any business or venture in which it has a direct or indirect
interest, whether as a proprietor, partner, joint venturer, stockholder,
officer, director, or in any other capacity whatsoever, other than in connection
with the operation of the license granted hereunder, nor (iii) do any acts
prejudicial or injurious to the goodwill of Licensor or SuperShuttle. Licensee
shall cause its officers, directors, stockholders, employees, agents and
representatives who will have contact with such trade secrets and proprietary
information to execute Licensor's prescribed form of non-disclosure and
non-competition agreement. Licensee further acknowledges that the Licensor could
not protect its proprietary information and trade secrets against unauthorized
use or disclosure if Licensee held interests in any competitive business, as
described below. Licensee also acknowledges that Licensor is granting the rights
to Licensee set forth in this Agreement in part in consideration of, and in
reliance upon, Licensee's agreement to deal exclusively with Licensor.
Therefore, during the term of this Agreement, neither Licensee, nor any officer,
director, executive, shareholder or partner (if Licensee is a corporation or
partnership), individually or in conjunction with any person or entity, is
permitted to have any interest as an owner, investor, shareholder, partner,
tender, director, officer, manager, employee, consultant, guarantor,
representative, or agent or in any other manner whatsoever, directly or
indirectly, carry on or be engaged in, financially or otherwise, or advise in
the establishment of any business similar to the Transportation System. This
restriction does not apply to ownership of securities listed on a stock exchange
or traded on the over-the-counter market that represent one percent (1%) or less
of the number of shares of the class of securities issued and outstanding, to
the ownership of other Transportation Systems pursuant to license agreements
with Licensor or to the operation of ordinary taxi services that are not
operated as shuttle services. Licensee further agrees that it shall not divert
SuperShuttle business to any other business entity without the express written
consent of Licensor.
Section 2.6 Right to Goodwill. Licensee acknowledges that valuable
goodwill is attached to the Proprietary Marks and the Indicia, and agrees that
it will use the same only in the manner and to the extent specifically licensed
by this Agreement. Licensee further acknowledges that all goodwill which may
arise from Licensee's use of the Proprietary Marks and the Indicia is and will
at all times remain the property of Licensor and SuperShuttle and will inure to
their sole benefit.
Section 2.7 Unauthorized Use.
(a) Licensee will promptly report to Licensor any unauthorized use
of the Proprietary Marks or Indicia that comes to its attention in any manner
whatsoever. If requested by Licensor, Licensee will cooperate with Licensor in
prosecuting unauthorized use of the Proprietary Marks and Indicia, or any
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confusingly similar mark or indicia, but at the sole expense of Licensor.
Licensor will have sole discretion to take any action it deems appropriate in
connection with prosecuting any unauthorized use of the Proprietary Marks or
Indicia in Licensee's Market.
(b) Licensor will defend Licensee, at Licensor's cost and expense,
against any claim by a third party alleging infringement of third party's
trademark, copyright or any other claim arising out of Licensee's authorized use
of the Proprietary Marks and/or Indicia. Licensee will promptly notify Licensor
of any such claim or action brought against it and cooperate with Licensor in
its defense of such claim. Licensor's decision as to any settlement or other
disposition thereof will be final, provided, however, that Licensor may not
agree to any settlement or accept any arbitrator's decision which precludes
Licensee from using the Proprietary Marks and Indicia in Licensee's Market
without the consent of Licensee, which shall not be unreasonably withheld,
(c) Licensee understands and agrees that its license of the
Proprietary Marks and Indicia is exclusive only as to Licensee's Market (subject
to the terms and conditions set forth in this Agreement) and may be exercised
only in accordance with the terms and conditions of this Agreement, and that
Licensor, in its sole discretion, has the right to operate businesses outside
Licensee's Market under the Proprietary Marks and Indicia, and to grant other
licenses in, to and under the Proprietary Marks and Indicia on any terms and
conditions Licensor deems fit, either directly or indirectly through
corporations, partnerships, joint ventures, franchises or other entities in
which it has an interest, whether or not such interest represents a controlling
interest therein.
(d) Licensee shall not use the Proprietary Marks, Indicia or any
portion of the Transportation System, including, without limitation, van colors
and decals, training, operating and policy manuals, sales promotion aids,
maintenance schedules, accounting, inventory and cashiering procedures and
systems and the software therefor, marketing reports and informational bulletins
provided to Licensee, in any manner not authorized by Licensor. In particular,
Licensee shall not use the Proprietary Marks or Indicia on any vehicle that is
not a part of the Transportation System Licensee operates pursuant to this
Agreement.
Section 2.8 Collateral Sales Material. Licensee will obtain the prior
written approval of Licensor (which may be withheld in Licensor's sole
discretion) of any collateral sales material directly related to Licensee's
operation of its Transportation System, including, but not limited to, rate
cards and any graphics used on such collateral sales material.
Section 2.9 Unrelated Advertising on Vehicles. Except with the Licensor's
prior written consent (which may be withheld in its sole discretion), Licensee
may
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not advertise services or products or display or affix signs or decals to the
exterior or interior of vehicles in its fleet other than those required by
Licensor.
Section 2.10 Referrals.
(a) Licensee acknowledges the importance of maintaining a fleet of
vans adequate to meet the demand of customers in Licensee's Market for the
Transportation System and Licensee's obligation to increase its van fleet from
time to time to accommodate growth in demand for such services. Therefore,
except on an emergency basis (as determined by Licensor), Licensee shall not
refer or otherwise divert potential customers to any other transportation
provider, including any other business which Licensee operates. The
circumstances which constitute an "emergency" qualifying for an exception to
this prohibition shall be provided to Licensee from time to time in the
Operations Manual (as defined below) and other written bulletins and notices,
Licensee further agrees and acknowledges that more frequent referrals may
indicate a growth in demand for services in Licensee's Market which requires
Licensee to increase its fleet of vans. Licensee shall immediately report to
Licensor referrals made upon such forms as Licensor shall require. If Licensor
determines, in its sole discretion, that the frequency of such referrals
indicates a need for Licensee to increase its fleet of vans, Licensor shall
notify Licensee and Licensee shall be required promptly to increase its fleet of
vans accordingly.
(b) Licensee may operate transportation referral services such as
hotel transportation desks provided that: (i) the Proprietary Marks and Indicia
are used only incidentally in the operation of the service to advertise the
availability of Licensee's Transportation System; (ii) at least ninety-nine and
one-half percent (99.5%) of the referrals are made to the SuperShuttle
Transportation System; (iii) Licensee is not permitted to refer customers to
other ground transportation services unless Licensor consents in writing to
those specific services; and (iv) Licensee's van fleet shall be and remain
adequate, in Licensor's sole determination, to meet the current and anticipated
demand for transportation services in Licensee's Market.
ARTICLE 3. LICENSOR'S CONTINUING OBLIGATIONS
Section 3.1 Services to be Rendered. In partial consideration for the
Royalty Fee in Article 5 and to assure the quality of Licensee's services,
Licensor's obligations throughout the term of this Agreement shall include
provision of the following services.
(a) Operating Consulting Services. Licensor may provide opening
supervision to assist Licensee in the commencement of operations in Licensee's
Market. Licensor's representative(s) may assist Licensee during the four (4)
weeks
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prior to and four (4) weeks following the commencement of operations in engaging
staff, securing suppliers, training personnel, designing the routing system and
preparing promotional programs in connection with the commencement of Licensee's
operations in its market. Licensee will notify Licensor in writing at least
four (4) weeks prior to the date on which Licensor is to commence providing such
services for Licensee's Market, and will pay Licensor's incidental costs
(including such items as travel, hotel, food and excluding salaries) in
providing personnel to supervise the opening of Licensee's Market. In addition,
Licensor may provide operating consulting services as Licensor deems appropriate
on an ongoing basis by telephone or at Licensor's operating facilities, during
normal business hours, during the term of this Agreement;
(b) Personnel and Training Support Services. Prior to commencement
of operations by Licensee in Licensee's Market Licensor will instruct the
general manager chosen by Licensee for such operation, at Licensor's expense,
pursuant to a training program consisting of theoretical and practical
instruction for up to two (2) weeks, at such place as Licensor shall designate.
At Licensee's written request, Licensor may, in its sole discretion, based on
Licensee's prior experience or other similar factors, waive the initial training
requirement, or modify its content and/or length. All expenses of travel,
lodging, meals and other living expenses incurred by Licensee's general manager
in attending Licensor's training shall be borne and paid by Licensee. Licensor
will provide such instruction to any replacement general manager in Licensee's
Market during the term of this Agreement at Licensee's expense. In addition to
the foregoing, Licensor may provide, and Licensee and its general manager may be
required to attend, such additional training programs (for which it reserves the
right to charge a fee) and personnel and training support services as it deems
appropriate, by telephone or at Licensor's operating facilities, during normal
business hours. during the term of this Agreement; and
(c) Operations Manual. Licensor will provide Licensee with an
operations manual ("Operations Manual") containing specifications, standards,
policies, operating procedures and rules prescribed from time to time by
Licensor concerning Licensee's operations, and any bulletins, memos, notices,
directions or similar documents issued by Licensor to Licensee concerning
Licensee's operations shall be deemed part of the Operations Manual as if
incorporated therein. Licensee will follow the provisions of the Operations
Manual; provided, however, that Licensee shall not be obligated to comply with
any provisions of the Operations Manual which are materially more onerous or
costly than the provisions set forth in this Agreement.
Section 3.2 Specialized Equipment. At the sole and absolute discretion of
Licensor, it may offer to sell equipment developed by it (the "Specialized
Equipment") to Licensee. Licensee may at its election purchase such Specialized
Equipment in such quantities as it sees fit.
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Section 3.3 Price and Terms of Sale. The prices, delivery terms, terms of
payment and other terms relating to any Specialized Equipment offered by
Licensor to Licensee will be prescribed by Licensor and will be subject to
change by Licensor without prior notice at any time. Notwithstanding the
foregoing, the price of any Specialized Equipment sold to Licensee by licensor
will not be changed once an order for such Specialized Equipment has been
received by Licensor.
Section 3.4 Sales Following Termination. Upon receipt of notice of
termination by either Licensor or Licensee, or upon the termination of this
Agreement, Licensor will not be obligated to fill or ship any orders for
Specialized Equipment previously or thereafter received from Licensee; provided,
however, that in the event Licensor has received payment for goods ordered but
not delivered prior to receipt of notice of termination, Licensor will return
such payment regardless of any other claims it may have against Licensee or ship
such goods at its election.
Section 3.5 Unavailability or Delay. Licensor shall in no event be liable
to Licensee for unavailability of or in delay in shipment in or receipt of
Specialized Equipment due to temporary product shortages or unavailabilities,
order backlogs, production difficulties, delays in or unavailability of
transportation, or fire, strikes, work stoppages or other causes beyond the
reasonable control of Licensor.
ARTICLE 4. QUALITY CONTROL, LICENSEE'S OPERATION
Section 4.1 Standards of Quality. Licensee understands that given its
intended use of Licensor's Proprietary Marks and Indicia pursuant to this
Agreement, it is essential to the preservation and promotion of Licensor's
reputation and acceptance by the public at large and to the maintenance and
enlargement of the goodwill associated with the Proprietary Marks and Indicia,
that Licensee maintain uniform high standards of quality, performance,
appearance and service in its own operations. Licensee also recognizes that
benefits inuring to both parties shall be derived from such uniformity of
quality, appearance and service. Accordingly, Licensee will abide by the
following provisions:
(a) Permits. Licensee will obtain and maintain in full force and
effect, at its expense, during the term of this Agreement, all federal, state
and local permits required to operate its Transportation System. Licensee will
not commence operations in Licensee's Market until it has obtained all such
permits necessary in Licensee's Market.
(b) Compliance with Laws. Licensee will comply with all federal,
state, county, municipal or other governing statutes, laws, ordinances, or
regulations, rules or orders of any governmental or quasi-governmental entity,
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body, agency, commission, board or official applicable to Licensee's operations
center, employees, vans, or business. Nothing herein will prevent Licensee from
engaging in a bona fide contest of the validity or applicability thereof in any
manner permitted by law. Licensee shall immediately notify Licensor of any
legal, administrative, regulatory or other proceedings instituted by or against
Licensee in which any governmental or quasi-governmental entity, body, agency,
commission, board or official is a party.
(c) Tariffs. Licensee will establish its own tariffs and prices for
the airport shuttle services and products offered in connection with the license
granted herein.
(d) Operations Center. In conjunction with the reasonable advice and
recommendations of Licensor, Licensee will establish an operations center from
which it will conduct its Transportation System in Licensee's Market. Licensee
will use its best efforts to find appropriate locations reasonably satisfactory
to Licensor for its operations center; however, it will be within Licensee's
ultimate discretion to select an appropriate location and to establish its
operations center.
(e) Approved Suppliers.
(i) Except for the Software (as defined below), Licensee is
required to purchase all supplies and equipment to be used in connection with
the Transportation System which bears the Marks or Indicia or which relate to
the Specialized Equipment, communication equipment, the van fleet, and parts and
services therefor from:
(A) manufacturers, suppliers or distributors from time
to time designated in writing by Licensor;
(B) such other suppliers selected by Licensee and
approved by Licensor in the manner and subject to the conditions described
below; or
(C) from Licensor, if available.
(ii) Licensor shall approve suppliers selected by Licensee
provided the following conditions are met:
(A) Licensee shall submit a written request to Licensor
for approval of the supplier;
(B) The supplier shall demonstrate to Licensor's
satisfaction that it is able to supply an item to Licensee meeting Licensor's
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specifications for such item, including but not limited to, providing Licensor
with samples and the opportunity to inspect its facilities from time to time;
(C) The supplier shall demonstrate to Licensor's
satisfaction that the supplier is of good standing in the business community
with respect to its financial soundness and the reliability of its product and
service;
(D) The supplier obtains and maintains, and submits to
Licensor proof of, sufficient insurance coverage (including, but not limited to,
product liability coverage) at limits and including coverage acceptable to
Licensor and includes Licensor, SuperShuttle and Licensee as additional named
insureds with the right to receive at least thirty (30) days' prior written
notice of any modification, cancellation or termination of such policy; and
(E) The supplier signs Licensor's then-standard
form of supplier agreement.
(iii) Until and unless Licensor notifies Licensee in writing
that it has approved a supplier, Licensee must continue to purchase from the
parties described in (i) above.
(iv) If Licensor determines that a previously approved
supplier no longer conforms to such standards, it shall so notify Licensee and
Licensee shall thereupon discontinue making purchases from that supplier.
(f) General Manager. In order to maintain a high level of service
and for the protection of the integrity of Licensor's Proprietary Marks and
Indicia, Licensee agrees to employ a competent general manager, subject to
Licensor's prior written approval, to serve in Licensee's Market (the "General
Manager"). The General Manager shall undergo, and complete to the Licensor's
satisfaction, an initial training program and all subsequent training programs
conducted by Licensor at Licensor's request.
(g) Employees. Licensee shall at all times maintain a staff of
employees sufficient to operate the Transportation System. All drivers shall be
employed by Licensee and shall be under Licensee's full and direct control.
Licensee or its General Manager shall conduct an initial orientation program and
quarterly update training programs that meet Licensor's specifications for
Licensee's employees. Licensee shall cause all of its employees to attend such
training programs and to adhere to all training directives.
(h) Signs. When using Licensor's Proprietary Marks and Indicia,
including all signs, emblems, logos, lettering and pictorial materials used in
or about Licensee's vans or elsewhere, Licensee will conform to the
specifications and standards as to art work, lettering, colors, size,
construction and overall
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appearance as may be reasonably prescribed by Licensor in writing from time to
time. In particular, and without limiting the generality of the foregoing,
Licensee will identify its vehicles in strict accordance with the Licensor's
specifications in the Operations Manual. Licensee shall at all times display all
signs and decals as directed by Licensor on the interior and exterior of each
van in its fleet, including without limitation, the Licensor's interior and
exterior "800 or 808 Phone Number, "How Am I Driving?" decal.
(i) Van Fleet. Licensee will at all times conduct its operations in
Licensee's Market with a number of vans sufficient to meet the demand for its
services, including, without limitation, by increasing its van fleet from time
to time so as to accommodate the growth in demand for its services in Licensee's
Market. Licensee agrees to expand its van fleet through the purchase or lease of
new vans only, provided, however, that Licensor will consider on a case-by-case
basis (but may in its sole discretion decline to grant) requests from Licensee
to incorporate into its fleet specific used vans. If Licensee sells, removes or
retires a vehicle from its fleet, Licensee shall remove all signs and decals and
shall completely repaint the vehicle in a color other than blue.
(j) Van Ownership. Licensee shall purchase or lease in its own name
all vehicles used in operating its Transportation System under this Agreement.
All such vehicles shall be registered in Licensee's name and Licensee shall
maintain registration certificates and other documents necessary to evidence
such ownership interest.
(k) Van Design. Licensee will use vans of the type, color and model
of vehicles specified by Licensor in the Operations Manual or in other written
directions to Licensee; provided, however, that Licensor will consider on a
case-by-case basis (but may in its sole discretion decline to grant) requests
from Licensee to incorporate into its fleet specific vans which do not comply
with the foregoing.
(l) Reservations System. Licensee acknowledges that Licensor has
developed a mandatory proprietary central reservations system for use as an
integral component of the Transportation System, and that the central
reservations system includes custom-designed and specially modified Software.
Licensee acknowledges that the principal purpose of the license granted hereby
is to operate the Transportation System and provide services to the general
public under the Trademarks identifying the source of such services, and that
maintaining the distinctive quality and uniformity of such services is central
to the reputation, goodwill and value of the Transportation System. Therefore,
Licensee shall be required to use the central reservations system and its
Software in the operation of the Transportation System. Concurrently with the
execution of this Agreement, the parties shall execute a Computer Software
License Agreement in the form
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attached to this Agreement as Exhibit "C" which is incorporated by this
reference as though set forth in full herein.
(m) Cashiering System. Licensee acknowledges that Licensor has
developed an optional proprietary cashiering system for use in the
Transportation System, and that Licensor has developed proprietary Software for
use in the cashiering system. Licensee may, but shall not be required to, use
the cashiering system and its Software in the operation of the Transportation
System. If Licensee elects to do so, Licensee shall execute the Licensor's
then-current form of Computer Software License Agreement, the current form of
which is attached hereto as Exhibit "C," and to pay additional fees for the
services provided. Licensee agrees and acknowledges that this will include
obtaining, installing, maintaining and upgrading equipment compatible with
Licensor's cashiering system, as modified from time to time, and that such
equipment must meet Licensor's specifications. Licensee may also enter into the
optional Maintenance and Support Agreement which is part of the Computer
Software License Agreement.
(n) Dispatch System. Licensee acknowledges that as of the effective
date of the Offering Circular provided to Licensee, Licensor was in the process
of developing an optional proprietary dispatch system, which includes
proprietary Software. After the dispatch system has been developed, Licensee
may, but shall not be required to, use the dispatch system and its Software in
the operation of the Transportation System. If Licensee elects to do so,
Licensee will be required to execute the Licensor's then-current form of
Computer Software License Agreement, the current form of which is attached
hereto as Exhibit "C," and to pay additional fees for the services provided.
Licensee agrees and acknowledges that this will include obtaining, installing,
maintaining and upgrading equipment compatible with Licensor's reservations and
dispatch system, as modified from time to time, and that such equipment must
meet Licensor's specifications. Licensee may also enter into the optional
Maintenance and Support Agreement which is part of the Computer Software License
Agreement.
(o) Communication Equipment. Licensee will equip the vans operated
by it under this Agreement, whether new or used, with two-way communication and
dispatch equipment which will permit two-way communication between the vans and
the operations center. Such communication and dispatch equipment will meet
certain reasonable minimum standards of performance as may be prescribed by
Licensor in writing.
(p) Maintenance. As part of its operations, Licensee will maintain
in good repair and condition and upgrade, at its expense, the vans, the
dispatch, communication and other equipment used by it in operating its
Transportation System. Licensee will not place or maintain in service any van
which is not clean, and free of dents, scratches or other damage, or mechanical
problems which
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materially and adversely affect its appearance or which render such van unsafe,
excessively noisy or uncomfortable in which to ride.
(q) Hours of Operation. Licensee will (i) operate its Transportation
System seven (7) days a week, including all holidays, (ii) with respect to each
airport in Licensee's Market, commence daily service not later than two (2)
hours before the first departing or arriving commercial flight and (iii)
conclude daily service not earlier than two (2) hours after arrival or departure
of the last commercial flight at any airport in Licensee's Market.
Notwithstanding the foregoing, Licensee will operate during such additional
hours as necessary to accommodate demand in Licensee's Market. Licensor will
consider on a case-by-case basis (but may in its sole discretion decline to
grant) requests from Licensee to reduce its hours of operation below those
required by this Section.
(r) Standards of Operation. Licensee is committed to providing at
all times prompt, courteous, and efficient service to the public; will provide
such service competently and in a professional manner; and in all business
dealings with members of the public will be governed by the highest standards of
honesty, integrity, fair dealing and ethical conduct. Licensor's decision to
grant a license to use the Proprietary Marks and Indicia to Licensee is
specifically conditioned upon Licensee's agreement to conduct operations that
meet Licensor's high standards of customer service, vehicle and equipment
cleanliness and maintenance and performance and Licensee's agreement to refrain
from doing anything which would tend to discredit, dishonor, reflect adversely
upon, or in any manner injure the reputation and goodwill of the Licensor, its
Proprietary Marks or Indicia.
(s) Licensor's Right to Inspect. Licensor, through its authorized
representatives upon twelve (12) hours' oral or written notice, will have the
right at all times to visit Licensee's operations center(s) in Licensee's
Market, for the purpose of (i)inspecting vans, Specialized Equipment, dispatch,
communication and other equipment used by Licensee required by this Agreement,
(ii) inspecting the nature and quality of services rendered, (iii) observing the
manner in which Licensee is rendering its services, (iv) conferring with
Licensee's employees, independent contractors, suppliers, agents and customers,
(v) examining Licensee' books and records pertaining to the operation of its
Transportation System, and (vi) observing the manner and method of operating the
business.
(t) Modification of Proprietary Marks and Indicia. Licensee
recognizes and agrees that from time to time hereafter, Licensor may change,
modify or discontinue use of the Proprietary Marks and Indicia, as well as the
copyrighted materials, products, services, equipment (including but not limited
to, vans, dispatch equipment, communication equipment and Specialized
Equipment), uniforms, supplies, techniques or methods which Licensee is either
granted the right to or required to use pursuant to this Agreement. Licensee
will (i) accept, use and display for the purpose of this Agreement any such
changes therein
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including new or modified Proprietary Marks, Indicia, copyrighted materials,
products, services, equipment (including, but not limited to vans, dispatch and
communication equipment), uniforms, supplies, techniques or methods as if they
were part of this Agreement at the time of execution hereof and (ii) discontinue
using, to the extent inconsistent with such changes, the existing Proprietary
Marks, Indicia, copyrighted materials, products, services, equipment (including,
but not limited to vans, dispatch and communication equipment), uniforms,
supplies, techniques or methods. Licensee will make such changes or
modifications, at Licensee's expense, within a reasonable time of Licensor's
implementation thereof.
(u) Group Rates; Coupons. In the event Licensor negotiates special
group and other arrangements involving group rates and discounts, Licensee
agrees to accept vouchers or coupons from such customers; provided, however,
that such arrangements shall in no way affect Licensee's right to establish its
own tariffs and prices. Such vouchers or coupons may be redeemed upon submission
to the Licensor in accordance with the procedures established in the Operations
Manual.
(v) Telephone Number and Listing. Licensee shall obtain and maintain
a separate dedicated telephone number or numbers solely for use in the operation
of Licensee's Transportation System and "white" and "yellow" page listings in
such telephone directories and other trade or business directories as are
required from time to time by Licensor. Licensee agrees and acknowledges that
such numbers and listings are part of the goodwill associated with the
Proprietary Marks and, therefore, are owned by Licensor irrespective of the
party in whose name such numbers and listings are held. Licensee also agrees and
acknowledges that upon expiration or termination of this Agreement, Licensee
shall have no right whatsoever to such numbers. Therefore, Licensee shall obtain
such numbers and listings in Licensor's name although Licensee shall be
responsible for payment of all charges. Licensee agrees to take all actions and
sign all documents which Licensor deems necessary or advisable from time to time
to evidence Licensor's ownership, including without limitation, a letter of
direction to the telephone company to transfer the listing as directed by
Licensor in the event of the termination or expiration of this Agreement.
Section 4.2 Licensee's Liability and Insurance.
(a) Licensee alone will be responsible for all loss or damage
arising out of or relating to its own operation of the Transportation System
hereunder or arising out of the acts or omissions of Licensee or any of its
employees, agents, servants or contractors in connection with the sale of
products or rendering of services by Licensee, and for all claims for damage to
property or for injury or death of any persons directly or indirectly resulting
therefrom. Licensee agrees to indemnify, defend and hold SuperShuttle,
SuperShuttle's affiliates, Licensor and
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their respective current and former affiliates, shareholders, officers,
directors, employees, partners, agents, representatives and assignees
("Representatives") harmless against, and to reimburse them for, any and all
obligations, expenses, fines, suits, costs, judgments, proceedings, claims,
losses, damages (actual and consequential), liabilities, actions or proceedings
of any kind or nature (including costs and reasonable attorneys' fees)
including, but without limitation, investigations, administrative proceedings,
suits or other actions in any way: (i) arising out of, alleged to have arisen
out of , related to or in connection with Licensee's operation of its
Transportation System hereunder, or (ii) arising out of, alleged to have arisen
out of, related to or in connection with the acts or omissions of Licensee or
any of its employees, agents, servants or contractors in connection with the
sale of products or rendering of services by Licensee. Without limiting the
generality of the foregoing, Licensee agrees to pay all federal, state and local
taxes arising out of or in any way connected with the operation of its
Transportation System under the terms of this Agreement. This indemnity shall
continue in full force and effect subsequent to and notwithstanding the
expiration or termination of this Agreement.
(b) In the event Licensor or any of its Representatives (hereinafter
the "Indemnitees") are the subject of any suit, investigation, proceeding or
action with respect to any claim for which it is entitled to indemnification
pursuant to Subsection 4.2(a) hereof, Licensor will give prompt notice to
Licensee of such suit, investigation, proceeding or action (provided that any
failure to so notify or delay in notifying Licensee shall only serve as an
excuse or defense to the obligations hereunder if and to the extent that
Licensee is actually damaged by such failure or delay). The Indemnitees will
have the right, but not the obligation, to defend, contest or otherwise protect
against any such suit, investigation, proceeding or action including, without
limitation, the right to make any compromise or settlement thereof and to
recover all costs of such defense, contest, protection, compromise or settlement
from Licensee. Licensee will have the right, at its expense, to participate in
such defense; provided, however, that such defense will at all times be
conducted by and under the control of the Indemnitees and counsel of their
choosing, and Licensee will be fully bound by the results thereof. In the event
that the Indemnitees elect not to defend, contest or otherwise protect against
any investigation, proceeding or suit, Licensee will have the right, at its
expense, to pursue any such defense, contest or protection.
(c) Licensee shall obtain and at all times during the term of this
Agreement maintain in force and effect and pay the premiums for an insurance
policy or policies protecting Licensee and its officers, directors, employees
and agents against any loss, liability or expense whatsoever from fire
(including extended coverage), personal injury, death, property damage, product
liability or theft, arising from or occurring in connection with Licensee's
operation of its Transportation System established by it pursuant to this
Agreement. All liability insurance policies shall include the following
provision, or one substantially similar:
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"SuperShuttle International, Inc., SuperShuttle Franchise Corporation,
their affiliates and their respective current and former officers,
directors, employees, shareholders and agents, in their respective
capacities as such, are added as insured hereunder with respect to the
products, premises and operations of [Licensee]."
Such policy or policies shall be written by a responsible insurance company or
companies admitted in the jurisdiction in which the Licensee's Market is located
and satisfactory to Licensor, and shall include at a minimum: (i) statutory
workers' compensation policy; (ii) auto liability coverage in the amount
required by regulatory agencies in the jurisdiction in which the Licensee's
Market is located; and (iii) a general liability policy (including product
liability and bodily injury) with limits of liability for bodily injury and
property damages as required by regulatory agencies in the jurisdiction in which
the Licensee's Market is located, but in no event less than $1,000,000 combined
single limit per occurrence. Such limits of liability shall be increased and
modified, or additional types of coverage shall be obtained at the direction of
Licensor, as and when the minimum limits of insurance required hereunder become
inadequate during the term of this Agreement, as determined by Licensor, and
Licensee agrees within thirty (30) days after receipt of notice from Licensor to
obtain such increased coverage and to submit evidence to Licensor that it has
done so. Said policies of insurance shall expressly require the insurer to
defend Licensee, Licensor, their affiliates and their respective current and
former officers, directors, employees, shareholders and agents in any such
action. Licensee shall furnish to Licensor certified copies of such policies
evidencing coverage as set forth above, naming SuperShuttle, Licensor, their
affiliates and their current and former officers, directors, employees,
shareholders and agents, as additional insureds, and providing that each such
policy shall not be cancelled, limited, amended, modified or fail to be renewed
except upon thirty (30) days' prior written notice to Licensor. No later than
ten (10) days prior to commencing operation of the Transportation System,
Licensee shall furnish Licensor with evidence of all insurance policies required
by this subsection. Such evidence shall be in the form of certificates of
insurance, binders of insurance or endorsements satisfactory to Licensor and
containing the language required by this subsection. Maintenance of the
insurance required under this Section shall not relieve Licensee of the
obligations of indemnification contained in Subsection 4.2(a) hereof. If
Licensee fails to procure or maintain in force any insurance as required by this
Subsection or to furnish the certified copies or certificates thereof required
hereunder, Licensor may, in addition to all other remedies it may have, procure
such insurance and/or certified copies or certificates, and Licensee shall
promptly reimburse Licensor for all premiums and other costs incurred in
connection therewith.
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ARTICLE 5. OTHER FEES AND REPORTS
Section 5.1 Amount of Royalty Fee. Subject to the adjustments provided
in Section 5.3, Licensee agrees to pay to Licensor, by the Wednesday following
each full or partial calendar week beginning after Licensee begins operations,
but in no event later than one hundred twenty (120) days after the date of this
Agreement, a royalty fee ("Royalty Fee") of Forty Dollars ($40.00) per van or
other vehicle marked for any portion of such week with any of the Proprietary
Marks or Indicia pursuant to the license granted under this Agreement.
Notwithstanding the foregoing but subject to the adjustments provided in Section
5.3, the aggregate Royalty Fee shall not be less than_______________ Dollars
($_____________) per calendar week (or a pro rate amount thereof in the case of
a partial calendar week) ("Minimum Royalty Fee"). A van or other vehicle shall
be included in the calculation of the Royalty Fee regardless of whether such van
or vehicle was actually operated during the relevant week and regardless of the
reason for such lack of operation, including, without limitation, because of
reduced demand, mechanical problems or the inability to meet federal, state or
local vehicle codes.
Section 5.2 Marketing Fund Contribution. Subject to the adjustments
provided in Section 5.3, Licensee agrees to pay to Licensor, by the Wednesday
following each full or partial calendar week beginning after Licensee begins
operations, but in no event later than one hundred twenty (120) days after the
date of this Agreement, a contribution to the Marketing Fund, as defined in
Article 7 below, of Ten Dollars ($10.00) per van or other vehicle marked for any
portion of such week with any of the Proprietary Marks or Indicia pursuant to
the license granted under this Agreement. Payment of the Marketing Fund
contribution shall be made by check or other method or form of payment, separate
from Licensee's other obligations to make payments to Licensor, and shall be
made payable as designated by Licensor. Notwithstanding the foregoing but
subject to the adjustments provided in Section 5.3, the aggregate Marketing Fund
contribution shall be not less than Dollars ($ ) per calendar week (or a pro
rata amount thereof in the case of a partial calendar week) ("Minimum Marketing
Fund Contribution"). A van or other vehicle shall be included in the calculation
of the Marketing Fund contribution regardless of whether such van or other
vehicle was actually operated during the relevant week and regardless of the
reason for such lack of operation, including, without limitation, because
reduced demand, mechanical problems or the inability to meet federal, state or
local vehicle codes.
Section 5.3 Cost of Living Adjustment: Other Adjustment.
(a) The Royalty Fee and Minimum Royalty Fee provided for in
Section 5.1 and the Marketing Fund contribution and Minimum Marketing Fund
Contribution provided for in Section 5.2 shall be adjusted at the commencement
of the first full calendar week of the thirteenth month of this Agreement and
annually
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thereafter (the "Adjustment Date") as provided in this Section. The base for
computing the adjustment is the Consumer Price Index - Transportation ("CPI")
for Licensee's Market, published by the United States Department of Labor,
Bureau of Labor Statistics ("Index"), which is published for the month nearest
the date of this Agreement ("Beginning Index"). If the Index published nearest
the Adjustment Date ("Extension Index") has increased over the Beginning Index,
the Royalty Fee, the Minimum Royalty Fee, the Marketing Fund contribution and
the Minimum Marketing Fund Contribution for the following year (until the next
adjustment) shall be set by multiplying each of the Royalty Fee and Minimum
Royalty Fee, the Marketing Fund contribution and the Minimum Marketing Fund
Contribution by a fraction, the numerator of which is the Extension index and
the denominator of which is the Beginning Index. In no case shall the Royalty
Fee, the Minimum Royalty Fee, the Marketing Fund contribution or the Minimum
Marketing Fund Contribution be tess then the amounts set forth in Sections 5.1
and 5.2, as applicable. If the Index is changed so that the base year differs
from that used to establish the Beginning Index, the Index shall be converted in
accordance with the conversion factor published by the United States Department
of Labor, Bureau of Statistics. If the Index is discontinued or revised during
the term of this Agreement, such other government index or computation with
which it is replaced shall be used in order to obtain substantially the same
result as would be obtained if the Index had not been discontinued or revised.
(b) In addition, in the event a new airport or other
transportation center is opened in Licensee's Market during the term of this
Agreement, Licensor shall have the right to adjust the Minimum Royalty Fee and
the Minimum Marketing Fund Contribution.
Section 5.4 Reservations Fee. Licensee agrees to pay to Licensor, on a
semi-monthly basis within five (5) days after invoice by Licensor, beginning
after Licensee begins operations, but in no event later than one hundred twenty
(120) days after the date of this Agreement, a central reservation transaction
charge per call or reservation processed through the mandatory central
reservations system and directed to Licensee of ten percent (10%) of the total
revenue from the trip(s) for which the reservation is made (the "Reservation
Fee"). In addition, Licensee shall pay Licensor any additional fees charged to
Licensor or SuperShuttle by financial institutions for credit card processing
fees with respect to such reservation or trip. Licensee agrees and acknowledges
that Licensor may change the frequency of invoices and the frequency of
Licensee's obligation to make payments from time to time. Invoices will also
reflect credits for cancellations received during the period covered by the
invoice.
Section 5.5 Fleet Status Report. Licensee will submit, on forms
prescribed by Licensor, a Fleet Status Report to Licensor, with and at the time
each Royalty Fee payment is required pursuant to Section 5.1 hereof, which Fleet
Status Report
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will be certified to be true, correct and complete by an officer, director or
principal stockholder of Licensee.
Section 5.6 Maintenance and Audit of Records. Licensee will maintain
its books and records relating to the information in the Fleet Status Reports
according to generally accepted accounting principles. Licensee agrees that all
such books and records (which includes, without limitation, trip sheets and way
bills) will be retained for a period of not less than five (5) years after the
close of the fiscal year to which they relate and will be open at all reasonable
times to inspection and verification by Licensor or any of its representatives.
Further, Licensor may audit such books and records as reasonably necessary to
confirm the accuracy of the Fleet Status Reports. An audit shall be conducted by
an auditor approved by Licensee, which approval shall not be unreasonably
withheld. Any such audit will be held not more than once in any twelve (12)
month period. Licensor will bear the cost of such audit except in the event the
results thereof reveal the aggregate Royalty Fees reported as due by Licensee
for any twelve-month period prior to the audit was more than three percent (3%)
below the aggregate Royalty Fees determined as due by the auditor. In such an
event, Licensee shall promptly pay to Licensor the cost of the audit and the
amount of the Royalty Fee underpayment and Marketing Fund contribution
underpayment as determined by the auditor.
Section 5.7 Interest. Any sums due by Licensee to Licensor, if not paid
when due (whether such amount has been shown on any report required to be
submitted by Licensee or has subsequently been determined by verification,
examination or audit to have been due for any month), shall bear interest from
the due date until paid, calculated at the lesser of: (i) one and one-half
percent (1 1/2%) of the unpaid balance per month; or (ii) the maximum rate
permitted by law.
Section 5.8 Late Fee. In addition to all other rights and remedies
Licensor has under this Agreement, in the event Licensee does not pay any
Royalty Fee pursuant to Section 5.1 or any Marketing Fund contribution pursuant
to Section 5.2 within five (5) days after it is due, Licensor may, at its
option, require Licensee to pay a late fee of Five Dollars ($5.00) per van per
week. In addition to all other rights and remedies Licensor has under this
Agreement, in the event Licensee does not pay any other sum when due, Licensor
may, at its option, require Licensee to pay a late fee of ten percent (10%) of
the delinquent fees due. The parties acknowledge that Licensee's failure to pay
sums when due will result in additional administrative and other expenses to
Licensor, the actual amount of which is impractical and difficult to determine
and that such late fees are reasonable to compensate Licensor for such
additional expenses.
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ARTICLE 6. MARKETING
Section 6.1 Marketing Fund. The contributions described in Section 5.2
shall be deposited into a separate account designated for such advertising,
marketing, public relations and promotions as the Licensor may deem necessary or
appropriate (the "Marketing Fund"). The Licensor will make contributions to the
Marketing Fund with respect to operations by Licensor and its affiliates of the
SuperShuttle Transportation System.
Section 6.2 Administration of Marketing Fund.
(a) The Licensor shall have sole discretion over the creative
concepts, materials and endorsements used in the marketing program and over the
geographic market media allocation thereof. The Marketing Fund will be
administered by the Licensor for the purpose of advertising, promoting and
enhancing the Proprietary Marks and Indicia and the image of the Transportation
System which will include the costs of maintaining, administering, directing and
preparing advertising, the cost of preparing and conducting advertising
campaigns and other public relations activities, employing advertising agencies,
public relations firms, providing promotional brochures and other marketing
devices to Licensee and salaries, administrative costs and overhead Licensor may
incur in activities related to the administration of the Marketing Fund and
marketing programs financed through the Marketing Fund (including without
limitation, collecting and accounting for contributions to the Marketing Fund).
The Licensor undertakes no obligations in administering the Marketing Fund or to
make expenditures for Licensee which are equivalent or proportionate to its
contributions or to ensure that any particular licensee benefits directly or
prorate from the placement of advertising. The Marketing Fund will be accounted
for separately from Licensor's other funds.
(b) The Licensor agrees that all contributions of licensees to
the Marketing Fund shall be fully expended or allocated within six (6) months
after the end of each fiscal year as established from time to time by Licensor,
or committed for expenditure, unless otherwise permitted by a majority vote of
all licensees eligible (as determined at the time of the vote) to participate on
an Marketing Fund Advisory Committee as described in Subsection (c) below. Each
eligible licensee will have one vote.
(c) The Licensor shall have the right but not the obligation
to establish a Marketing Fund advisory committee consisting of licensees of
Licensor and such other persons as Licensor may designate, to advise and consult
with the Licensor in connection with establishment, modification, continuance,
or other decisions or considerations affecting marketing programs. The
organizational structure and manner of operation of such committee shall be
determined by Licensor in its sole discretion. If such a committee is
established, Licensor shall
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consult with such committee and consider such committee's input and advice
concerning the use of the Marketing Fund. However, Licensor shall retain sole
discretion over all aspects, including but not limited to administration and
use, of the Marketing Fund. Licensee is not eligible to participate on this
committee or any other committees or councils if Licensee is not current with
respect to its contributions to the Marketing Fund or any other payments
required by this Agreement.
(d) The Licensor shall have the right in its sole discretion,
at any time during the term of this Agreement, to perform any or all of its
duties and activities set forth in this Article relating to the Marketing Fund
by means of a separate entity controlled by Licensor, provided that such
performance complies with all of the terms and conditions of this Section. In
the event Licensor elects to do so, it shall have the right to require Licensee
by written notice, to pay Licensee's contributions to the Marketing Fund to such
entity.
ARTICLE 7. TRANSFERS AND ASSIGNMENTS
Section 7.1 General Prohibition. The rights granted to the Licensee
under this Agreement are personal and the Licensee acknowledges that the
Licensor is entering into this Agreement in reliance upon and in consideration
of the individual character, skill, attitude, business ability and financial
capacity of the Licensee, or, if Licensee is a corporation or a partnership, of
its principal shareholders and officers or partners. Except as set forth in
Sections 7.2 through 7.4 below and subject to all the terms and provisions
thereof, Licensee will not make, permit or suffer any assignment, hypothecation,
conveyance or transfer of any kind of any of Licensee's rights or interests
under or pursuant to this Agreement. Without limitation of the foregoing, each
of the following shall be deemed an assignment for the purposes of this
Agreement:
(a) Any sale, conveyance, encumbrance, hypothecation,
mortgage, pledge, assignment or other transfer by Licensee of or with respect to
this Agreement or any rights or interest herein, including without limitation,
Licensee's business or its assets, voluntarily or involuntarily, by operation of
law or otherwise.
(b) Sale at judicial sale or under power of sale, conveyance
or retention of collateral in satisfaction of debt, or other procedure to
enforce the terms of any pledge, encumbrance or security interest in this
Agreement which results in disposition of any of Licensee's interests herein,
including without limitation, Licensee's assets.
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(c) The passing by operation of law to any other party or
parties of Licensee's interest in this Agreement, including without limitation,
Licensee's assets, or any part thereof,
(d) Any transaction or series of transactions which results in
a fifty percent (50%) change of ownership in Licensee.
Any transfer or assignment of this Agreement or any rights
hereunder, other than in accordance with and subject to all the terms and
provisions of Sections 7.2, 7.3 and 7.4 below, will constitute a material breach
of this Agreement, will be subject to the provisions of Section 8.1 below and
will confer no rights or interest whatsoever under this Agreement upon any other
party.
Section 7.2 Licensor's Consent to Voluntary Assignment. In the event
Licensee desires or proposes voluntarily to assign this Agreement or its assets
to any party, Licensee will first notify Licensor in writing of such proposed
assignment or other action, setting forth in detail the nature of the item or
interest to be sold, assigned, transferred or otherwise acted upon, the name and
address of the proposed transferee, assignee, purchaser or party acquiring any
interest, and the consideration, if any, therefore. Subject to prior compliance
with the provisions of this Article 7, including, without limitation, Section
7.8, Licensor will consent to the proposed transaction, provided that:
(a) at the time of the proposed transfer, all outstanding
obligations of Licensee to Licensor have been satisfied; and
(b) that it will be demonstrated to the reasonable
satisfaction of Licensor that the proposed transferee, assignee or purchaser is
of good moral character, and possesses the business experience and capability,
credit standing, health and financial resources necessary to successfully
operate Licensee's business in accordance with the terms of this Agreement. If
the proposed transferee, assignee or purchaser is a corporation, partnership, or
other entity, the provisions of the preceding sentence will apply to the
individuals who are to own such corporation, partnership or entity; and
(c) that Licensee and its principals must execute a general
release of the Licensor, SuperShuttle, their respective affiliates and
associates and their respective current and former officers, shareholders,
directors, agents and employees in a form satisfactory to Licensor; and
(d) that the proposed transferee is duly licensed to operate
the Transportation System in the Licensee's Market and that Licensee will have
obtained, at its or at the transferee's expense, all requisite consents to such
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transfer by any federal, state, local or municipal authorities having
jurisdiction of the same; and
(e) at Licensor's option, that the transferee execute the
standard form of License Agreement then being offered to new licensees (modified
to delete the requirement of an initial license fee and to reflect the remaining
term and renewal terms then remaining with respect to this Agreement) and other
ancillary documents that Licensor requires, the terms of which may vary from
those of this Agreement; and
(f) that the transferee expressly assumes in writing for the
benefit of the Licensor all of the obligations of the Licensee under this
Agreement, whether accrued at the time of such transfer or arising thereafter,
and agrees to be bound by all of the terms and provisions of this Agreement to
the same extent and in the same manner as Licensee, provided however, that
neither the Licensor's consent to a transfer or anything contained therein shall
be deemed to constitute a release of Licensee of its obligations under this
License Agreement; and
(g) if the transferee or assignee is a corporation, the
corporation's performance of its obligations shall be guaranteed by all of its
shareholders as from time to time constituted, stock certificates shall be
legended to reflect restrictions on assignment, and Licensor shall have the
right to require that the sole business of such corporation shall be the
operation of the Transportation System hereunder. In the event the transferee is
a partnership, all partners shall be required to execute the License Agreement
described in Subsection (e) above and the assumption agreement described in
Subsection (f) above.
Licensee will cooperate with Licensor in making available such information as
Licensor may require to make the above-described determinations. For all
assignments other than an initial assignment by Licensee to a limited
partnership or other organization providing initial financing to Licensee, or an
assignment resulting from the death of a shareholder of Licensee, Licensee will
pay a transfer fee of Fifty Thousand Dollars ($50,000.00).
Section 7.3 Licensor's Consent to Encumbrances. In the event Licensee
desires or proposes to pledge, encumber or grant any security interest in this
Agreement, Licensee will first notify Licensor in writing of such proposed
transaction. Licensor will not unreasonably withhold its consent to such
transaction, subject, however, to the following conditions:
(a) Any constant so granted will not be deemed a consent to
such pledgee, encumbrancer or secured party exercising any rights or
prerogatives of Licensee under this Agreement, nor its exercise of any rights or
prerogatives of a holder of an ownership interest in Licensee.
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(b) Any consent so granted will not be deemed a consent to any
subsequent disposition including any described in Section 7.1 (c) above. Any
such subsequent disposition will be deemed an assignment or transfer within the
meaning of Section 7.1 above, and will be subject to the provisions of this
Section.
(c) The pledgee, encumbrancer or secured party will have
executed and delivered to Licensor an instrument in writing agreeing to be bound
by the provisions of this Article 7.
(d) Licensee will have obtained all requisite consents to such
pledge or hypothecation from all necessary federal, state, local or municipal
authorities.
Section 7.4 Death of Principal Shareholder, Partner or Licensee. In the
event of the death of a principal shareholder or of a partner of Licensee, which
death results in an assignment or transfer of this Agreement within the meaning
of Section 7.1 above, Licensee may retain the rights granted hereunder if
Licensee makes arrangements satisfactory to the Licensor, in its discretion, for
the continued active management of the Transportation System within one hundred
eighty (180) days of such death. In the event Licensee is an individual who
dies, then Licensor shall consent to an assignment or transfer of this Agreement
to the executor, administrator or other personal representative of the deceased,
and subsequently to the person or persons entitled to distribution from the
deceased's estate (or directly to the latter persons if no probate proceedings
are instituted with respect to the estate), provided that each of the following
conditions is fulfilled with respect to each such assignment or transfer:
(a) It shall be demonstrated to the reasonable satisfaction of
Licensor that such executor, administrator, personal representative or
distributee is of good moral character, and possesses the business experience
and capability, credit standing and health and financial resources necessary to
successfully operate Licensee's business in accordance with the terms of this
Agreement. Such executor, administrator, personal representative or distributee
shall cooperate with Licensor in making available such information as Licensor
may require to make the above described determinations.
(b) There shall not be an existing default in any of the
obligations of Licensee hereunder, all amounts owed to Licensor as of the date
of death shall be paid in full and the executor, administrator or other personal
representative shall have fully paid to Licensor a transfer fee of Five Thousand
Dollars ($5,000) for the training course, supervision, and administrative,
accounting, legal and other Licensor expenses.
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(c) Such executor, administrator, personal representative, or
distributee shall have submitted to Licensor satisfactory evidence that he has
succeeded or otherwise become entitled to all rights of the deceased in
Licensee, as the case may be.
(d) Such executor, administrator, personal representative or
distributee shall have obtained all requisite consents to such transfer of and
all appropriate federal, state, local or municipal authorities.
Any consent by Licensor to an assignment or transfer of this Agreement
or of any interest in Licensee to the executor, administrator or personal
representative of the deceased shall not constitute a consent to any subsequent
assignment or transfer thereof from such executor, administrator or personal
representative to any distributee of the estate. Any consent by Licensor to such
subsequent assignment or transfer shall be subject to fulfillment, with respect
to said subsequent assignment or transfer separately and specifically, of all
the conditions stated in this Section 7.4.
Section 7.5 Time Limitation. In the case of any transaction
described in Sections 7.2 and 7.3 above, Licensor will not be required to give
its consent to such transaction unless each condition precedent to such consent
requiring action by Licensee or any third party has been fulfilled within ninety
(90) days from the date of the event giving rise to the requirement of such
consent.
Section 7.6 No Sublicensing Rights. Notwithstanding anything
to the contrary herein, the Licensee shall not sublicense the right to operate
the Transportation System granted pursuant to this Agreement.
Section 7.7 Assignability by Licensor. This Agreement and
Licensor's rights hereunder may be assigned by Licensor to any corporation or
other entity or person which may succeed to the business of Licensor by sale of
assets, merger, consolidation or otherwise, and also may be assigned by Licensor
to a stockholder or stockholders thereof in connection with any distribution of
the assets of said corporation, provided, however, that no such assignment or
transfer will result in the discontinuation of Licensee's rights under this
Agreement.
Section 7.8 Right of First Refusal. Licensee may not sell its
business (either directly or indirectly, including, without limitation, through
a merger or sale of substantially all of the assets or stock of Licensee) or
assign the License Agreement unless it first gives written notice to Licensor
(the "Notice") at least thirty (30) days prior to any such sale. The Notice
shall name the proposed purchaser and specify the purchase price and payment
terms of the offer. If Licensor notifies Licensee in writing within thirty (30)
days following receipt of the Notice that it desires to purchase Licensee's
business, Licensee shall sell, and Licensor shall purchase, Licensee's business
at the price and on the terms
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contained in the Notice; provided, however, that if the purchase price specified
in the Notice consideration other than cash and notes, Licensor may substitute
for such other compensation cash in an amount equal to the fair market value
thereof. The closing of such sale shall be held within sixty (60) days following
receipt by Licensee of Licensor's notice. Any sale of Licensee's business in
violation of this Section 7.8 shall be deemed a transfer of Licensee's rights
under this Agreement in breach of Article 7.
ARTICLE 8. TERMINATION AND DEFAULT
Section 8.1 Termination by Licensor.
(a) Except as provided in Subsection 8.1(b) below, in the
event Licensee fails to perform any obligation imposed upon Licensee by this
Agreement and such default is not totally cured within thirty (30) days after
Licensor gives written notice of such default to Licensee, then Licensor may
terminate this Agreement at any time thereafter by giving written notice of
such termination to Licensee.
(b) Licensor may terminate this Agreement forthwith and
without giving Licensee any period of time to cure, by giving written notice to
Licensee, on account of any of the following matters:
(i) Licensee is declared bankrupt or judicially
determined to be insolvent or all or a substantial part of the assets thereof
are assigned to or for the benefit of any creditor;
(ii) Any transfer or assignment of this Agreement not
in compliance with Article 7, provided that if Licensor does not elect to
exercise its right to terminate this Agreement pursuant to this subsection, such
inaction will not be deemed to constitute a consent to such transfer or
assignment or any further transfer or assignment thereof nor to confer any
rights of interest whatever upon the purported transferee or assignee, but this
Agreement will remain binding and in full force and effect as between Licensor
and Licensee;
(iii) The business or business premises or other
assets of Licensee are seized, taken over or foreclosed by a government official
in the exercise of his duties, or seized, taken over or foreclosed by a
creditor, lienholder or lessor (unless a supersedeas or other appeal bond has
been filed) or execution has been levied upon the rights granted to Licensee by
this Agreement is not discharged within one month of such levy;
(iv) Licensee and Licensor agree in writing to
terminate the license granted hereunder;
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(v) If the Licensee fails to keep the administrative
office for its business hereunder open or suspends operation of the
Transportation System for a period of five (5) or more consecutive days without
Licensor's written consent, or for a shorter period of time after which it is
not unreasonable to conclude that the Licensee does not intend to operate the
business hereunder, unless such failure is due to (A) reasons of governmental
action not related to a breach by the Licensee of this Agreement or of the lease
for its office; or (B) an event of force majeure not caused, directly or
indirectly, by the Licensee's negligence or willful conduct;
(vi) If the Licensee makes any material
misrepresentations relating to the acquisition of this Agreement, or it engages
in conduct which reflects materially and unfavorably on the operation and
reputation of the Licensor, SuperShuttle or their business;
(vii) If the same or different defaults or breaches
occur three (3) or more times in any twelve (12) month period, whether or not
such breaches or defaults were cured;
(viii) If Licensee or a principal of a corporate or
partnership Licensee is convicted of or pleads nolo contendere, to a felony or
other criminal misconduct relevant to the operation of its business hereunder or
injurious to the reputation of the Licensor, SuperShuttle or their business;
(ix) If the Licensee materially breaches or defaults
under any promissory note or other agreement with Licensor or any of its
affiliates which breach or default is not cured within the cure period (if any)
permitted under any such agreement;
(x) If Licensor makes a reasonable determination
that continued operation of the business hereunder by the Licensee will result
in an imminent danger to public health or safety;
(xi) If the Licensee fails to adequately develop the
Licensee's Market;
(xii) If the Licensee makes any unauthorized use,
duplication or disclosure of any trade secrets or any other proprietary
information, including but not limited to, any portion of the Operations Manual
in violation of this Agreement;
(xiii) If a judgment against the Licensee in the
amount of Twenty-Five Thousand Dollars ($25,000.00) or more remains unsatisfied
(unless an appeal is filed or a supersedeas bond is secured) for a period of
more than fifteen (15) days;
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(xiv) If the Licensee fails, for a period of three
(3) days after notification of noncompliance, to comply with any federal, state
or local law or regulation applicable to the operation of the business licensed
hereunder;
(xv) If the Licensee's rights under any license,
permit or certificate required for the operation of the business licensed
hereunder are suspended, terminated or interrupted;
(xvi) If the Licensee fails to make payments of any
amounts due the Licensor or its affiliates, within ten (10) days after written
notice of such failure is deemed delivered to Licensee;
(xvii) If Licensee fails to maintain and operate its
vehicles and the Transportation System in a safe, clean, professional and
ethical manner and in compliance with the standards prescribed by Licensor in
the Operations Manual;
(xviii) If Licensee uses the Trademarks or Indicia,
the Licensor's trade secrets or the Transportation System in any other business
which it operates;
(xix) If customer complaints concerning Licensee's
Transportation System exceed the limit established from time to time by Licensor
for two (2) consecutive quarters, the current limit established being two and
one-half (2 1/2) times the average rate of complaints received during such
quarter by Licensor for all of its affiliate and licensed operations (without
including complaints regarding Licensee's operations), calculated on a per van
basis; or
(xx) If Licensee or its General Manager fail to
participate in and complete to Licensor's satisfaction any of Licensor's
required training courses.
(c) This Agreement shall automatically terminate without any
action required by the parties in the event Licensee has not commenced operation
of the Transportation System within one hundred twenty (120) days after the
execution of this Agreement as required by Section 1.2 above.
Section 8.2 Nonexclusive Remedy. The rights of Licensor to terminate
this Agreement pursuant to this Article 8, whether or not exercised, will not be
exclusive of any other remedies given Licensor by this Agreement or by law on
account of any default of Licensee hereunder.
Section 8.3 No Waiver. The description of any default in any notice
served upon the Licensee shall in no way preclude the Licensor from specifying
additional or supplemental defaults in any action, arbitration, hearing or suit
relating to this Agreement or the termination hereof.
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Section 8.4 Obligations Following Termination or Expiration. Upon
termination or expiration of this Agreement, whether by lapse of time, by
termination pursuant to any provision of this Article 8, by mutual consent of
the parties, by operation of law, or in any other manner whatsoever, Licensee's
authority to use the Proprietary Marks and Indicia will end, and Licensee will:
(a)Immediately and permanently discontinue the use of
any of the Proprietary Marks, the Indicia and any other materials which may in
any way indicate or tend to indicate that Licensee is or was authorized to use
such Proprietary Marks and Indicia;
(b) Permanently remove, destroy or obliterate, at
Licensor's direction and at Licensee's expense, all signs stationary,
letterheads, forms, printed matter, promotional displays and advertising
containing any of the Proprietary Marks or Indicia, the use of which is
prohibited by Subsection 8.4(a) above;
(c) Immediately and permanently discontinue all
advertising which uses, contains or makes reference to any of the Proprietary
Marks or Indicia, and cancel all such advertising already placed or contracted
for which would otherwise be published, broadcast, displayed or disseminated
after the date of expiration or termination hereof;
(d) Take any and all steps which Licensor deems
necessary or appropriate to modify the vans, Specialized Equipment and other
items associated with the Transportation System, including without limitation,
permanently repaint its vans to a color other than blue, so that they no longer
suggest or indicate a connection with SuperShuttle, Licensor, the Proprietary
Marks or Indicia or the Transportation System;
(e) Thereafter refrain from doing anything tending to
indicate that Licensee is or was an authorized Licensee of Licensor, or is or
was in any way associated with Licensor;
(f) Pay all amounts due Licensor promptly upon
expiration or termination;
(g) Refrain from directly or indirectly at any time
or in any manner identifying itself or any business as a current or former
SuperShuttle licensee, or as a franchisee or licensee of or as otherwise
associated with the Licensor or SuperShuttle (other than under other license
agreements with the Licensor), or using any Proprietary Mark, any Indicia or any
imitation thereof in any manner or for any purpose, or utilize for any purpose
any trade name, trade or service mark or other commercial symbol that suggests
or indicates a connection or association with the Licensor or SuperShuttle;
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(h) Return to Licensor all disclosure documents, sales and
marketing materials, all copies of the Operations Manual, Training Manuals,
Marketing Manuals, proprietary Software programs and documentation and all other
materials containing any Proprietary Marks or Indicia of otherwise identifying
or relating to the Transportation System, and any and all documents or materials
designated as confidential and proprietary by Licensor, including without
limitation, customer lists;
(i) Return or destroy all materials constituting trade dress;
(j) Take such action as may be required to cancel all
fictitious or assumed name or equivalent registrations relating to its use of
any Proprietary Marks;
(k) Comply with all further requirements set forth in the
Operations Manual; and
(1) Furnish to the Licensor, within thirty (30) days after the
effective date of termination or expiration, evidence satisfactory to the
Licensor of its compliance with the foregoing obligations.
Section 8.5 Telephone Listings. The Licensee shall immediately assign
to Licensor or its nominee, all telephone numbers and listings in the "yellow"
pages, "white" pages, other telephone directories and all other trade or
business directories, which were used in connection with its operation of the
business conducted hereunder.
Section 8.6 Power of Attorney. Upon termination or expiration of this
Agreement, and in the event that Licensee does not meet its obligations under
this Article in a timely manner, Licensor is hereby irrevocably appointed as the
Licensee's attorney-in-fact to execute in its name and on its behalf all
documents, and to do all acts, necessary to carry out the Licensee's obligations
under this Article.
Section 8.7 General Provisions Regarding Termination/Expiration.
(a) Termination or expiration of this Agreement under any
circumstances will not abrogate, impair, release or extinguish any debt,
obligation or liability of Licensee to Licensor which may have accrued
hereunder, including without limitation, any such debt, obligation or liability
which was the cause of termination or arose out of such cause.
(b) All covenants and agreements of Licensee which by their
terms or by reasonable implication are to be performed, in whole or in part,
after the
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termination or expiration of this Agreement, will survive such termination or
expiration.
(c) In the event this Agreement is transferred or assigned by
Licensee, and such transfer or assignment is consented to by Licensor, Licensee
will comply with the requirements of this Article, except that pursuant to such
assignment the signs, stationery letterheads, forms, printed matter, promotional
displays may be transferred to assignee, and need not be destroyed, discontinued
or cancelled.
(d) Upon termination or expiration of this Agreement under any
circumstance, Licensor shall thereupon immediately have the right to begin
operation of a business in Licensee"s Market involving the Transportation System
or to license another party to do so.
Section 8.8 Relief in Equity. Licensee agrees that neither termination
of this Agreement nor an action at law, nor both, would be an adequate remedy
for a breach or default by Licensee, or by any other persons bound by this
Agreement, in the performance of any obligation relating to the Proprietary
Marks or Indicia, the trade secrets and confidential information revealed to
Licensee in confidence pursuant to this Agreement, or the obligations of
Licensee and such other persons as are bound hereby. It is agreed that in the
event of any such breach or default, in addition to all other remedies provided
elsewhere in this Agreement or by law, Licensor shall be entitled to relief in
equity (including a temporary restraining order, temporary or preliminary
injunction, and permanent mandatory or prohibitory injunction) to restrain the
continuation of any such breach or default or to compel compliance with such
provisions of this Agreement.
ARTICLE 9. RENEWAL
Section 9.1 Renewal Options. Licensee is hereby granted an option to
extend this Agreement for three (3) five (5) year periods (each hereinafter
referred to as a "Renewal Period"). This option may be exercised by Licensee by
sending to Licensor written notice of its intention to do so, by certified mail,
not less than one hundred eighty (180) days prior to the expiration of the
initial term of this Agreement with respect to the first Renewal Period and not
less than one hundred eighty (180) days prior to the expiration of any Renewal
Period then in effect, with respect to each subsequent Renewal Period. The
Licensee's failure to give timely notice with respect to a Renewal Period shall
constitute its rejection of the renewal option and all such options shall
immediately terminate.
Section 9.2 Conditions For Renewal Option. Licensor may elect to revoke
said option and refuse to allow renewal only if (a) during the license period,
Licensee has repeatedly and unreasonably been in material default of this
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Agreement or (b) Licensee is in material default of this Agreement at the time
it attempts to exercise said option or at the time the Renewal Period commences,
or an event has occurred and is continuing which, with notice or the passage of
time or both, would constitute a default under this Agreement.
Section 9.3 Execution of Agreement. Upon each renewal, the parties will
confirm in writing the extension of this Agreement. Alternatively, at Licensor's
sole option, Licensor may require Licensee to enter into Licensor's then-current
form of License Agreement. In the event Licensor so elects, following notice of
exercise of Licensee's renewal option, Licensor shall provide Licensee with a
copy of its then-current form of license agreement and related agreements being
used by Licensor with the modifications noted below and the Licensee shall
execute and deliver such Agreement to Licensor together with payment of all of
Licensor's costs in connection with renewing the Agreement including, without
limitation, legal fees for the preparation of documents.
(a) Term and Renewal. The term and renewal provisions of the
agreement shall be consistent with the terms of this Agreement;
(b) Fee. The Licensee shall not be required to pay any initial
fee stated therein, but instead shall pay Licensor's renewal costs as set forth
above; and
(c) Survival. The renewal agreement shall be subject to any
provisions of this Agreement which are intended by the parties to survive the
expiration of such Agreement.
Section 9.4 Execution of General Release. Concurrently with execution
of any renewal agreement, the Licensee shall execute a general release of all
claims against the Licensor and its affiliates and current and former
associates, officers, directors, shareholders, employees, agents and
representatives.
Section 9.5 Equipment Replacement. The Licensee, at its sole cost and
expense, shall update, repair or replace, as required by Licensor, any and all
equipment and other items relating to its obligations under this Agreement to
meet Licensor's then-current requirements.
Section 9.6 Licensor's Election Not To Renew. The Licensee shall be
deemed to have withdrawn its request to renew this Agreement (and its option
shall thereupon terminate) if it fails to comply with each of the conditions set
forth above in a timely manner or if it fails to return to the Licensor any
documents required in connection with the renewal within twenty (20) days after
the Licensor has delivered them to the Licensee. In the event Licensor
determines that Licensee does not have the right to exercise the renewal option
referred to in Section 9.1 above and Licensor is unwilling to renew the license
granted by this
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Agreement, Licensor shall give to Licensee, not less than one hundred eighty
(180) days prior to expiration of this Agreement, a Notice of Intention Not to
Renew ("Notice"). Such Notice shall set forth the specific acts and/or omissions
of Licensee which constitute the reasons under this Agreement that Licensor is
unwilling to renew this Agreement for all remaining Renewal Periods. The
notice period required under this Section 9.6 shall run contemporaneously with
the notice period required under Section 9.1 and not consecutively. If
applicable law requires that Licensor give notice to Licensee prior to the
expiration of the initial term or Renewal Period, as applicable, or if
applicable law requires that longer periods of notice be given than those set
forth herein, this Agreement will remain in effect until the notice required by
applicable law has been given.
Section 9.7 Termination of Option. In the event Licensee fails to elect
to renew this Agreement for any specific Renewal Period in accordance with
Sections 9.1 and 9.2 hereof or Licensor is unwilling to permit Licensee to renew
this Agreement for any particular Renewal Period pursuant to Section 9.6,
Licensee shall not have the right to renew this Agreement for any subsequent
Renewal Period and Licensee acknowledges that the provisions of Sections 8.4
through 8.8 shall apply.
ARTICLE 10. MISCELLANEOUS PROVISIONS
Section 10.1 Force Majeure. In the event of a strike, lockout or labor
controversy or the entry of any injunction or the happening of any event beyond
the control of Licensor which results in the inability of Licensor to operate or
to provide the services contemplated by this Agreement, there shall be no
obligation on the part of Licensor to operate or to provide such services during
the period when Licensor is unable to do so. Licensee hereby waives any right to
claim either actual or punitive damages against Licensor as the result of
Licensee's inability to operate its Transportation System or Licensor's
inability to operate or provide services during such period.
Section 10.2 Grammar. The masculine of any pronoun will include the
feminine and the neuter thereof, and the singular of any noun or pronoun shall
include the plural, or vice versa, wherever the context requires.
Section 10.3 Interpretation. Upon any effective transfer or assignment
of Licensee's interest in this Agreement, any and all reference herein to
"Licensee" will, unless the context otherwise requires, mean and refer to such
assignee. References to rights and obligations of the parties during the term of
this Agreement shall also apply to any renewal term of this Agreement if the
Licensee exercises its option to renew in accordance with the terms of this
Agreement and in the event the Licensor does not require the Licensee to enter
into its then-current form of License Agreement. References in the Agreement to
actions,
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rights, decisions or options to be exercised in the Licensor's discretion shall
mean the sole, absolute and unfettered discretion of the Licensor.
Section 10.4 Section Headings. Section headings are for convenience of
reference only and should not be construed as part of this Agreement nor should
they limit or define the meaning of any provision herein.
Section 10.5 Remedies Cumulative. All rights and remedies conferred
upon either party by this Agreement and by law are cumulative of each other, and
neither the exercise nor the failure to exercise any such right or remedy will
preclude the exercise of any other such right or remedy.
Section 10.6 Nonwaiver. No failure by either party to take action on
account of any default of the other party, whether in a single instance or
repeatedly, and no course of dealing of the parties in variance with the terms
hereof constitutes a waiver of any such default or of the performance required
of either party by this Agreement. No express waiver by either party of any
provision or performance hereunder or of any default by the other party
constitutes a waiver of any other or future provision, performance or default.
No waiver or extension of time shall be effective unless expressly contained in
a writing signed by the waiving party. Licensor may in its sole discretion elect
from time to time to waive obligations of Licensee under this Agreement upon
such terms and conditions as Licensor may, in its sole discretion, set forth in
such waiver.
Section 10.7 Arbitration; Attorneys Fees. Except as provided in Section
8.8 above, any controversy arising out of this Agreement shall be submitted to
the American Arbitration Association at its offices in Phoenix, Arizona, Los
Angeles, California, or such other location as Licensor may designate, for
arbitration in accordance with its commercial rules and procedures which are in
effect at the time the arbitration is filed. The prevailing party in such
arbitration or in any legal proceeding will be entitled to recover as an element
of such party's cost of arbitration, suit or proceeding, and not as damages,
reasonable attorneys' fees to be fixed by the arbitrator or by the court. No sum
for attorneys' fees will be counted and calculated in the amount of judgment for
purposes of determining whether a party is entitled to recover its costs or
attorneys' fees.
Section 10.8 Invalidity and Severability. If any provision of this
Agreement is determined to be invalid or unenforceable, either in its entirety
or by virtue of its scope or application to given circumstances, such provision
shall be deemed modified to the extent necessary to render the same valid, or as
not applicable to the given circumstances, or to be exercised from this
Agreement, as the situation may require, and this Agreement shall be construed
and enforced as if such provision had been included herein as so modified in
scope or application, or had not been included herein, as the case may be, it
being the stated intention of the
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Parties that had they known of such invalidity or unenforceability at the time
of entering into this Agreement, they would have nevertheless contracted upon
the terms contained herein, either excluding such provisions, or including such
provisions only to the maximum scope and application permitted by law, as the
case may be. In the event such total or partial invalidity or unenforceability
of any provision of this Agreement exists only with respect to the laws of a
particular jurisdiction, this Section will operate upon such provision only to
the extent that the laws of such jurisdiction are applicable to such provision.
Section 10.9 Notices. Any notice or demand given or made pursuant to
the terms of this Agreement will be made in writing and delivered by personal
service, facsimile, telegram, telecopy, or first class, registered or certified
mail (postage prepaid) to such address as may be designated from time to time by
the relevant party, and which will initially be as set forth as follows:
(a) If given to Licensor:
SuperShuttle Franchise Corporation
4610 South 35th Street
Phoenix, Arizona 85040
Telephone: (602) 232-2200
Facsimile: (602) 243-6446
Attention:
------------------------
(b) If given to Licensee:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Telephone:
------------------------------------
Facsimile:
------------------------------------
Attention:
------------------------------------
Any notice sent by certified mail will be deemed to have been given three (3)
days after the date on which it is mailed. All other notices will be deemed
given when received. No objection may be made to the manner of delivery of any
notice actually received in writing by an authorized agent of a party.
Section 10.10 Entire Agreement. This Agreement, any documents executed
contemporaneously herewith which expressly reference this Agreement and any
documents referred to herein constitute and contain the entire Agreement and
understanding of the parties with respect to the subject matter hereof. There
are no representations, undertakings, agreements, terms, or conditions not
contained or referred to herein. This Agreement supersedes and extinguishes any
prior written agreement between the parties or any of them relating to the
subject
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matter hereof, provided that it shall not abrogate, impair, release or
extinguish any debt, obligation or liability otherwise existing between the
parties. This Agreement may not be modified or amended except by a written
amendment executed by both parties.
Section 10.11 Binding Effect. This Agreement will be binding upon
and subject to Article 7 hereof, will inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, personal representatives,
successors and assigns.
Section 10.12 Controlling Law. This Agreement, including all matters
relating to the validity, construction, performance, and enforcement thereof,
shall be governed by the laws of California without giving effect to its
provision regarding choice of laws.
Section 10.13 Relationship of Parties.
(a) Nothing herein contained shall be deemed or construed to
create the relationship of principal and agent, partnership, joint venture or
employment, or a fiduciary relationship, and the Licensee shall not hold itself
out as an agent, legal representative, partner, subsidiary, joint venturer,
servant or employee of Licensor or any affiliate or licensee of Licensor. With
respect to all matters pertaining to the operation of the business conducted
hereunder, the Licensee is, and shall be, an independent contractor. Neither
Licensor nor the Licensee has the right to bind or obligate the other to any
obligations or debts.
(b) It is acknowledged that the Licensee is the independent
owner of its business, shall be in full control thereof, and shall conduct such
business in accordance with its own judgment and discretion, subject only to the
provisions of this Agreement. Licensee shall employ a sufficient workforce of
employees to operate the Transportation System. All drivers shall be employed by
Licensee and shall be under Licensee's full and direct control. Licensor shall
neither regulate nor be responsible for the hiring or firing of the Licensee's
agents or employees or for the Licensee's contracts, except to the extent
necessary to protect the SuperShuttle system as provided in this Agreement. The
Licensee shall conspicuously identify itself as the independent owner of its
business and as a licensee of the Licensor. No party hereto shall be obligated
by, or have any liability for, any agreements, representations or warranties
made by the others nor shall the Licensor be liable for any damages to any
person or property, directly or indirectly, arising out of the operation of the
Licensee's business, whether caused by the Licensee's negligent or willful
action or failure to act. The Licensor shall have no liability for any sale,
use, excise, income, property or other tax levied upon the business conducted by
the Licensee or in connection with the services performed or business conducted
by it or any expenses incurred by it.
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Section 10.14 Licensor Succession. In the event the Agreement pursuant
to which Licensor has the right to license Licensee is terminated for any
reason, then SuperShuttle or its nominee shall forthwith succeed to all of the
rights and assume all of the obligations of the Licensor under this Agreement.
Section 10.15 Partnership and Corporate Licensees.
(a) If Licensee is a partnership, Licensee shall deliver to
Licensor a copy of its current partnership agreement prior to the execution of
this Agreement. Thereafter, Licensee shall deliver to Licensor copies of all
restated partnership agreements and any amendments to the partnership agreement
marked to indicate changes since the date of the partnership agreement
previously delivered to Licensor. If Licensee is a corporation, Licensee shall
deliver to Licensor a copy of its articles of incorporation, or other charter
documents and all amendments thereto, and a copy of its current bylaws, prior to
the execution of this Agreement. Thereafter, Licensee shall deliver to Licensor
copies of all subsequent amendments to its articles of incorporation or other
charter documents and its current bylaws, marked to indicate changes since the
date of the articles, bylaws or other charter documents previously delivered to
Licensor.
(b) If Licensee is a corporation, partnership or other
entity, Exhibit "D" shall be completed and delivered together with this License
Agreement. Licensee shall notify Licensor in writing within ten (10) days of any
change in the information contained in Exhibit "D".
(c) If Licensee is a corporation, it shall maintain stop
transfer instructions against the transfer on its records of any securities
subject to the restrictions against transfer set forth in this Agreement, and
Licensee shall issue no additional securities unless the following legend
appears conspicuously on the face of the stock certificate evidencing the
issuance thereof:
"The transfer of the shares represented by this stock
certificate is subject to the terms and conditions of
the License Agreement entered into with SuperShuttle
Franchise Corporation dated , 19 _, a copy of
which is on file with the Secretary of this
corporation."
Section 10.16 Approvals, Consents and Guaranties,
(a) If Licensee is a corporation, a partnership or other
entity, Licensor shall not be bound unless all shareholders, general partners or
members have read and approved this Agreement and further agree that any
restriction applicable to the corporation, partnership or other entity shall
also apply to them individually and collectively (including limitations on their
ability to transfer their interests in the Licensee) and further agree, if
Licensor so requires, to personally,
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jointly and severalty, guarantee the performance of Licensee under the terms of
this Agreement by executing the form of guaranty set forth in Exhibit "E"
attached hereto.
(b) Licensee's spouse or the spouse of a shareholder, a
partner or a member of a Licensee which is a corporation, partnership or other
entity shall execute a spousal consent in the form attached hereto as Exhibit
"F".
Section 10.17 Time of the Essence. Time is of the essence in each and
every one of the provisions of this Agreement.
ARTICLE 11. ACKNOWLEDGEMENTS.
THE LICENSEE ACKNOWLEDGES AND REPRESENTS THE FOLLOWING TO LICENSOR TO
INDUCE IT TO ENTER THIS AGREEMENT, AS FOLLOWS:
Section 11.1 Documents. IT HAS READ THIS AGREEMENT AND THE SUPERSHUTTLE
UNIFORM FRANCHISE OFFERING CIRCULAR AND ALL OTHER RELATED AGREEMENTS AND
DOCUMENTS AND UNDERSTANDS AND ACCEPTS THE TERMS, CONDITIONS, AND COVENANTS
CONTAINED IN THIS AGREEMENT AS BEING REASONABLY NECESSARY TO MAINTAIN THE
SYSTEM'S HIGH STANDARDS OF QUALITY AND SERVICE AND THE UNIFORMITY OF THOSE HIGH
STANDARDS BY ALL SUPERSHUTTLE LICENSEES IN ORDER TO PROTECT AND PRESERVE THE
GOODWILL OF THE PROPRIETARY MARKS AND INDICIA.
Section 11.2 Risks. THE LICENSEE ACKNOWLEDGES THAT IT HAS CONDUCTED AN
INDEPENDENT INVESTIGATION OF THE BUSINESS CONTEMPLATED BY THIS AGREEMENT AND
RECOGNIZES THAT IT INVOLVES BUSINESS RISKS, AND THAT MAKING A SUCCESS OF THE
VENTURE IS LARGELY DEPENDENT UPON THE BUSINESS ABILITIES OF THE LICENSEE.
LICENSOR EXPRESSLY DISCLAIMS THE MAKING OF, AND THE LICENSEE ACKNOWLEDGES THAT
IT HAS NOT RECEIVED NOR RELIED UPON ANY REPRESENTATION, WARRANTY OR GUARANTY,
EXPRESS OR IMPLIED, AS TO THE POTENTIAL VOLUME, PROFITS OR SUCCESS OF THE
BUSINESS VENTURE CONTEMPLATED BY THIS AGREEMENT. THE LICENSEE IS ENTERING INTO
THIS AGREEMENT AS A RESULT OF ITS OWN INDEPENDENT INVESTIGATION AND NOT AS A
RESULT OF ANY REPRESENTATION OF LICENSOR, ITS AGENTS, OFFICERS OR EMPLOYEES NOT
CONTAINED IN ANY OFFERING CIRCULAR, DISCLOSURE DOCUMENT OR OTHER SIMILAR
DOCUMENT. NO BROKER, SALESPERSON, REPRESENTATIVE OR OTHER PERSON HAS THE
AUTHORITY TO BIND OR OBLIGATE LICENSOR IN ANY WAY EXCEPT AN AUTHORIZED OFFICER
AT THE PRINCIPAL OFFICE OF LICENSOR AND BY AN INSTRUMENT IN WRITING. THE
LICENSEE UNDERSTANDS AND ASSUMES THE BUSINESS RISKS INHERENT IN THIS ENTERPRISE.
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Section 11.3 No Other Representations, THE LICENSEE HEREBY EXPRESSLY
WARRANTS THAT IT HAS NO KNOWLEDGE OF ANY REPRESENTATION BY LICENSOR OR ITS
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS OR SERVANTS, OR ANY BROKER
OR SALESPERSON ABOUT THE BUSINESS CONTEMPLATED BY THIS AGREEMENT THAT IS
CONTRARY TO THE TERMS OF THIS AGREEMENT, THE OFFERING CIRCULAR OR THE DOCUMENTS
RELATED HERETO. THE LICENSEE REPRESENTS TO LICENSOR, AS AN INDUCEMENT TO ITS
ENTRY INTO THIS AGREEMENT, THAT THE LICENSEE HAS MADE NO MISREPRESENTATIONS IN
OBTAINING THIS AGREEMENT.
Section 11.4 Advisors. THE LICENSEE ACKNOWLEDGES THAT IT HAS RECEIVED,
READ AND UNDERSTANDS THIS AGREEMENT, THE ATTACHMENTS HERETO AND ALL DISCLOSURE
DOCUMENTS DELIVERED IN CONNECTION HEREWITH, THAT THE LICENSEE HAS HAD AMPLE TIME
AND OPPORTUNITY TO REVIEW SUCH DOCUMENTS WITH ITS OWN LEGAL COUNSEL AND OTHER
ADVISORS OF ITS OWN CHOOSING AND TO CONSULT WITH THEM ABOUT THE POTENTIAL
BENEFITS AND RISKS OF ENTERING INTO THIS AGREEMENT, AND THAT LICENSOR OR ITS
REPRESENTATIVE HAS FULLY AND ADEQUATELY EXPLAINED THE PROVISIONS OF SUCH
DOCUMENTS TO THE SATISFACTION OF THE LICENSEE.
Section 11.5 Non-Uniformity. THE LICENSEE IS AWARE OF THE FACT THAT
SOME PRESENT OR FUTURE LICENSEES OF LICENSOR MAY OPERATE UNDER DIFFERENT FORMS
OF AGREEMENTS, AND CONSEQUENTLY, THAT LICENSOR'S OBLIGATIONS AND RIGHTS IN
RESPECT TO ITS VARIOUS LICENSEES MAY DIFFER MATERIALLY.
Section 11.6 Representatives. IN ALL OF THEIR DEALINGS WITH THE
LICENSEE, THE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SALES PERSONNEL,
AGENTS AND REPRESENTATIVES OF LICENSOR ACT ONLY IN A REPRESENTATIVE CAPACITY,
NOT IN AN INDIVIDUAL CAPACITY, AND THIS AGREEMENT, AND ALL BUSINESS DEALINGS
BETWEEN THE LICENSEE AND SUCH INDIVIDUALS AS A RESULT OF THIS AGREEMENT, ARE
SOLELY BETWEEN THE LICENSEE AND LICENSOR.
Section 11.7 0perating Authority. LICENSEE UNDERSTANDS AND ACKNOWLEDGES
THAT IN ORDER TO OPERATE THE TRANSPORTATION SYSTEM, LICENSEE MUST OBTAIN CERTAIN
PERMITS, REGISTRATIONS AND COMPLY WITH THE REGULATIONS FOR DOING SO. THIS MAY
INCLUDE REGULATION BY FEDERAL, STATE AND LOCAL AUTHORITIES, AS WELL AS
REGULATION BY THE AIRPORT(S) AT WHICH LICENSEE WILL CONDUCT OPERATIONS. LICENSEE
SPECIFICALLY REPRESENTS AND WARRANTS TO LICENSOR THAT IT HAS SUCH OPERATING
AUTHORITY OR IS FULLY FAMILIAR WIT THE PROCESS OF OBTAINING SUCH AUTHORITY.
FURTHER,LICENSEE
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UNDERSTANDS AND AGREES TO COMMENCE FULL OPERATION OF ITS TRANSPORTATION SYSTEM
UNDER THIS AGREEMENT NO LATER THAN ONE HUNDRED TWENTY (120) DAYS AFTER SIGNING
THIS AGREEMENT. IF LICENSEE DOES NOT DO SO, THIS AGREEMENT WILL TERMINATE AND
LICENSOR WILL RETAIN ALL AMOUNTS PAID BY LICENSEE. LICENSEE EXPRESSLY ASSUMES
ANY AND ALL RISK OF FAILING TO OBTAIN ALL NECESSARY OPERATING AUTHORITY AND
FAILING TO COMMENCE OPERATIONS WITHIN THE TIME REQUIRED, AND THE CONSEQUENCES OF
FAILING TO DO SO.
Executed at__________________________,_________________________, on the
day and year first above written.
LICENSOR: LICENSEE:
SUPERSHUTTLE FRANCHISE (IF LICENSEE IS AN INDIVIDUAL. PLEASE
CORPORATION COMPLETE THIS SECTION)
____________________________________
(PRINT NAME OF INDIVIDUAL)
By:____________________________
____________________________________
Its:___________________________ (SIGNATURE)
(IF LICENSEE IS A CORPORATION, PLEASE
COMPLETE THIS SECTION)
___________________________________
(PRINT NAME OF CORPORATION)
By:________________________________
(SIGNATURE)
________________________________
(PRINT NAME)
Title:_____________________________
(Signatures continued on page 41)
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