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Form of Transition Services Agreement

This is an actual contract between AIR Transport Services Group, and Airborne.

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Sectors: Transportation
Governing Law: New York, View New York State Laws
Effective Date: January 01, 2003
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Exhibit 10.8


TRANSITION SERVICES AGREEMENT


by and between


Airborne, Inc.,


a Delaware corporation


and


ABX Air, Inc.,


a Delaware corporation


dated as of


[_____________], 2003


TABLE OF CONTENTS


Page
----


ARTICLE I DEFINITIONS....................................................1


SECTION 1.1 Definitions................................................1


ARTICLE II SERVICES.......................................................2


SECTION 2.1 Provision of Services......................................2
SECTION 2.2 No Employment Relationship.................................2
SECTION 2.3 No Conflicts...............................................2
SECTION 2.4 Standard of Performance of Services........................2
SECTION 2.5 Authorization for Certain Computer Services................3
SECTION 2.6 Staffing of Personnel......................................3
SECTION 2.7 Representatives............................................3
SECTION 2.8 Change of Services and Equipment...........................3
SECTION 2.9 Access to Records..........................................3
SECTION 2.10 Modification of Existing Systems...........................4
SECTION 2.11 Change Order Procedures....................................4


ARTICLE III TERM OF THE AGREEMENT..........................................4


SECTION 3.1 Term of the Agreement......................................4
SECTION 3.2 Extension of Term..........................................5


ARTICLE IV COMPENSATION AND PAYMENT.......................................5


SECTION 4.1 Payment for the Services. .................................5
SECTION 4.2 Invoicing and Payment. ....................................5
SECTION 4.3 Records....................................................5


ARTICLE V DISCONTINUATION OF SERVICES....................................5


SECTION 5.1 Discontinuation of Services................................5
SECTION 5.2 Procedures Upon Discontinuation of Services................5
SECTION 5.3 Transfer of Data Upon Termination of Services..............6
SECTION 5.4 Transfer of System Configuration Upon Termination..........6


ARTICLE VI DEFAULT AND REMEDIES...........................................6


SECTION 6.1 Default and Remedies.......................................6


ARTICLE VII CONFIDENTIALITY................................................7


SECTION 7.1 Generally..................................................7


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TABLE OF CONTENTS
(continued)


Page
----


SECTION 7.2 Exceptions.................................................7
SECTION 7.3 Required Disclosures.......................................7


ARTICLE VIII LIMITATION OF DAMAGES..........................................8


SECTION 8.1 Groundco's Liability to Airco..............................8
SECTION 8.2 Airco's Liability to Groundco..............................8


ARTICLE IX INDEMNIFICATION................................................8


SECTION 9.1 Groundco's Indemnification of Airco........................8
SECTION 9.2 Airco's Indemnification of Groundco........................8
SECTION 9.3 Indemnification Procedure..................................9


ARTICLE X MISCELLANEOUS..................................................9


SECTION 10.1 Successors and Assigns.....................................9
SECTION 10.2 Entire Agreement; Amendment................................9
SECTION 10.3 Governing Law..............................................9
SECTION 10.4 Notices....................................................9
SECTION 10.5 Third Party Beneficiaries.................................10
SECTION 10.6 Disputes; Arbitration. ..................................10
SECTION 10.7 Force Majeure.............................................10
SECTION 10.8 Specific Performance......................................11
SECTION 10.9 Severability..............................................11
SECTION 10.10 Headings..................................................11
SECTION 10.11 Counterparts..............................................12


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TRANSITION SERVICES AGREEMENT


THIS TRANSITION SERVICES AGREEMENT (this "Agreement"), dated as of [________], 2003, is by and between Airborne, Inc. ("Groundco"), a Delaware corporation and a subsidiary of DHL Worldwide Express B.V. ("Parent") and ABX Air, Inc., a Delaware corporation ("Airco").


RECITALS


WHEREAS, Airco was spun-off from the parent company of Groundco to become a separate publicly owned company (the "Spin-Off") pursuant to that certain Separation Agreement, dated as of [_________], 2003 (the "Separation Agreement"), by and among Groundco, Airco and Wilmington Air Park LLC; and


WHEREAS, in connection with the Spin-Off, Groundco has agreed to provide, or to cause its Affiliates to provide (either directly or through a third party), to Airco certain administrative and other services, all in accordance with the terms and conditions set forth herein for a limited period of time, in order to assist Airco immediately after the Spin-Off.


NOW THEREFORE, in consideration of the mutual promises contained in this Agreement, and intending to be legally bound, the parties do hereby agree as follows:


ARTICLE I
DEFINITIONS


SECTION 1.1 Definitions. As used in this Agreement, the following terms shall have the meanings specified or referred to in this Article I and shall be equally applicable to both the singular and plural forms.


"Affiliate" means, with respect to any Person, any other Person which, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with a specified Person. The term "control" (including, with correlative meanings, the terms "controlled by" and under "common control with") means the possession of power to direct the management and policies of the referenced Person, whether through ownership interests, by contract or otherwise.


"Change Order Request" has the meaning specified in Section 2.12.


"Change Order Response" has the meaning specified in Section 2.12.


"Claims" means any claim, demand, cause of action, or suit of any nature or character based on any legal theory, including, without limitation, products liability, strict liability, violation of any federal, state or local law, rule or regulation, or the sole or concurrent negligence of any Person.


"Closing" means the consummation of the transactions contemplated by the Separation Agreement.


1


"Disclosing Party" means, with respect to information which is, or is asserted to be, subject to the confidentiality provisions of Article 7, the Party or its Affiliate disclosing or providing information or from whom such information is obtained or developed.


"Disputes" has the meaning set forth in Section 12.9.


"Fee" has the meaning provided in Section 4.1.


"Force Majeure" means acts not within the control of the Party bound to perform and which, by the exercise of due diligence, such party is unable to overcome. A Force Majeure includes acts of God, weather, strikes, lockouts, or other industrial disturbances (whether to themselves or their corporate affiliates), acts of the public enemy, wars, acts of terrorism, national emergency, embargoes, blockades, riots, epidemics, lightning, earthquakes, floods, tornadoes, explosions, accidents to machinery or aircraft, failure of public utilities, and any other causes not within control of the Party claiming suspension. It is understood that the settlement of strikes, lockouts or industrial disturbances shall be entirely within the discretion of the Party having the difficulty, and the requirement that any Force Majeure shall be remedied shall not require the settlement of strikes or lockouts by acceding to the demands of the other Party to this Agreement or any other third party when such course is inadvisable in the discretion of the Party having the difficulty.


"Groundco Affiliate" means an Affiliate of Groundco.


"Indirect Damages" has the meaning provided in Section 8.1.


"Indemnified Party" has the meaning provided in Section 11.3


"Indemnifying Party" has the meaning provided in Section 11.3


"Order" has the meaning specified in Section 2.3.


"Payment Date" has the meaning specified in Section 4.2.


"Party" means Groundco or Airco, as applicable, and "Parties" means Groundco and Airco.


"Person" means any natural person, corporation, limited liability company, partnership, group, joint venture, trust, association or other business enterprise or organization or any government or agency or political subdivision thereof or any other entity.


"Receiving Party" means, with respect to information that is, or is asserted to be, subject to the confidentiality provisions of Article 7, the Party or its Affiliate receiving, developing, holding or coming into possession of such information.


"Schedule" means a schedule attached to this Agreement unless reference is made to the schedules under another agreement.


"Separation Agreement" has the meaning set forth in the first recital of this Agreement.


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"Services" has the meaning provided in Section 2.1


"Service Change" has the meaning provided in Section 2.12


"Spin-Off" has the meaning specified in the recitals hereto.


"Term" has the meaning set forth in Section 3.1.


ARTICLE II
SERVICES


SECTION 2.1 Provision of Services.


(a) Subject to the terms and conditions of this Agreement, Groundco shall provide, or cause an Affiliate to provide (either directly or through a third party), to Airco, and Airco will accept and pay for, each of the services listed and described on Schedule 2.1 hereto (collectively, the "Services" and individually a "Service").


(b) The term and the monthly cost for each of the Services to be provided hereunder are set forth on Schedule 2.1 hereto.


SECTION 2.2 No Employment Relationship. At all times during the performance of the Services, all persons performing Services shall be in the employ and/or under the direction and control and shall be deemed for purposes of all compensation and employee benefits to be employees or representatives solely of Groundco, the Groundco Affiliate or the third party, as the case may be, providing such Services (including, without limitation, agents, contractors, temporary employees and consultants). In performing their respective duties hereunder, all such employees and representatives of Groundco, the Groundco Affiliate or the third party shall be under the direction, control and supervision of Groundco, the Groundco Affiliate or the third party (and not Airco and its Affiliates) and Groundco, the Groundco Affiliate or the third party as the case may be, shall have the sole right to exercise all authority with respect to the employment (including termination of employment) assignment and compensation of such employees and representatives.


SECTION 2.3 No Conflicts. Notwithstanding any other provision of this Agreement, Groundco shall not be required to provide or to cause to provide Services hereunder that conflict with any applicable decree, judgment, injunction or other order (whether temporary, preliminary or permanent) (an "Order"), law, ordinance, statute, contract, rule, regulation, code, license, authorization, certification or permit.


SECTION 2.4 Standard of Performance of Services. Groundco shall perform, or cause a Groundco Affiliate to perform (either directly or through a third party), the Services with the same degree of care, skill and prudence customarily exercised with respect to its own operations. Groundco will use commercially reasonable efforts to conduct its duties hereunder in compliance with all applicable Orders, laws, ordinances, statutes, contracts, rules, regulations, codes, licenses, authorizations, certifications and permits, and shall keep its equipment and facilities which are necessary or useful for the provision of the Services in good


3


working condition and repair; provided, however, that, except as specifically set forth in this Agreement, neither Groundco nor any Groundco Affiliate providing Services makes any express or implied warranties, representations or guarantees of any kind, including, without limitation, warranties of merchantability, fitness, quality, non-infringement of third party rights, suitability or adequacy for a particular purpose or use, relating to, in connection with or arising out of this Agreement and the Services provided or caused to be provided hereunder.


SECTION 2.5 Alternatives. Groundco agrees to use commercially reasonable efforts to (a) maintain and/or renew existing consents, licenses, sublicenses and approvals and (b) obtain any consents, licenses, sublicenses or approvals from third parties, necessary to provide the Services hereunder. If Groundco is unable to maintain, renew or obtain such consents, licenses, sublicenses or approvals from third parties, the Parties shall cooperate to determine the best alternative approach. Until such alternative approach is found or the problem is otherwise resolved to the satisfaction of the Parties, Groundco shall use its reasonable efforts to continue to provide the Service, or in the case of systems, to support the function to which the system relates or, if contractually permitted, permit Airco to have access to the system so that Airco can support the function itself. To the extent an agreed upon alternative approach requires payment above and beyond that which is included in the Groundco's charge for the Service in question, the Parties shall share equally in making any such payment unless they otherwise agree in writing.


SECTION 2.6 Authorization for Certain Computer Services. If requested by Airco, Groundco shall use commercially
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