Exhibit 10.31
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT ("Agreement") is between Appiant Technologies,
Inc., a Delaware corporation, with a principal place of business at 0000 Xxxxx
Xxxxx, Xxxxxxxxxx, XX 00000 ("Appiant") and InPhonic, Inc., a Delaware
corporation, with a principal place of business at 0000 Xxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxx, X.X. 00000 ("Client"), dated as of March 22, 2001 ("Effective
Date"). Appiant and Client shall be referenced to separately as "Party" and
collectively as the "Parties".
Background.
WHEREAS, Appiant wants to deliver and Client wants to receive certain
unified communications and information application products and services (the
"inUnison(TM) Services"); and
WHEREAS, Client wants to make certain inUnison(TM) Services available to
Client's customers ("Subscribers") to offer to end users (the "End Users") by an
Internet-based portal ("Portal"); and
WHEREAS, the inUnison(TM) Services that Client may order hereunder are
identified in the features set forth on the attached Exhibit A, entitled "
inUnison(TM) Features"; and
WHEREAS, the inUnison(TM) Services requested by Client to be provided by
Appiant together with any related services or products will be submitted by
Client to Appiant in accordance with this Agreement on the standard purchase
order form, attached as Exhibit B (the "Purchase Order"); and
WHEREAS, a jointly developed detailed description of the inUnison(TM)
Services and any related services and products that are ordered by Client and
accepted by Appiant (the "Designated Services") for provisioning will be set
forth in a statement of work, as more particularly described below ("SOW").
NOW THEREFORE, in consideration of the foregoing and of the mutual promises
contained herein, the Parties agree as follows:
1
Agreement.
1. Term.
a.Initial Term and SOW Term. the initial term of this Agreement is three
years from the Effective Date (the "Initial Term"). The term of each
SOW, as more particularly described below, will begin on the date
specified in the SOW (each a "SOW Effective Date") and will be
coterminous with this Agreement unless a shorter term is specified in
the applicable SOW.
b. Renewal. Client will notify Appiant 90 days prior to the expiration of
the Initial Term if Client wants to renew this Agreement (and all
selected SOWs), with the Initial Term and any renewal period being
referred to herein as the "Term".
2. Services.
a.Designated Services. Prior to initiating any work in connection with the
development of a SOW, InPhonic must issue and Appiant must accept in
writing a Purchase Order for those services to be set forth in the
applicable SOW. Should InPhonic terminate the Purchase Order after
Appiant has accepted the Purchase Order in writing but before the
Parties are delivering Designated Services to Subscribers, then
Appiant will invoice InPhonic for all reasonable expenses incurred by
Appiant in reliance upon such Purchase Order. InPhonic will pay such
invoice within 30 days from the date it is received by InPhonic, as
long as Appiant has given InPhonic written notice of such expenses
prior to incurring them and InPhonic has not reasonably denied them in
written response to Appiant. All Designated Services are set for in a
SOW and incorporated by reference into this Agreement.
i. Modifications. Appiant reserves the right to modify the
Designated Services from time to time, provided that Appiant
will not modify them in a manner that would (i) materially
impact (for purposes of this Section, the Parties recognize
that the term "materially impact" means a modification in
the Designated Services that would render Client in breach
of an Agreement with its customer) a Purchase Order still in
effect or (ii) have a significant adverse affect on Client's
use of or ability to use the Designated Services, as long as
Appiant provides Client with at least 30 days prior written
notice to Client of any such modifications.
ii. Co-Branded Portal. Appiant will develop and deliver a
co-branded Portal, containing certain elements ("Co-Branded
Elements") pursuant to a jointly developed SOW ("Co-Branded
Portal"). Such Co-Branded Portal will have a dual-branded
2
URL, as agreed upon by the Parties in the relevant SOW. The
Parties will agree and set forth in each SOW who will own,
manage and approve the advertising inventory on the
Co-Branded Portal. Parties can promote or sell advertising
inventory that does not interfere or compete with any
Parties' products or services, based on the relevant SOW.
Approval for advertising is required by all Parties and will
not be unreasonably withheld.
iii. Co-Branded Elements. Client warrants and represents to
Appiant that Client has full power and authority to provide
to Appiant, and to authorize Appiant's use of, the
Co-Branded Elements. Client grants to Appiant a
non-exclusive, nontransferable (unless expressly provided
for herein), worldwide, royalty-free, irrevocable (during
the Term) license to reproduce, display, perform, modify,
prepare derivative works of and otherwise use the Co-Branded
Elements for the purpose of branding Client's Co-Branded
Portal and making such Co-Branded Portal available as User
Services.
b. Use of Designated Services.
i. Storage Capacity. Client may provide or resell to
Subscribers certain agreed upon Designated Services ("User
Services") and such Subscriber's authorized end users
("Users"), in accordance with the terms and conditions of
this Agreement.
ii. Portal. Each User will have access to a Portal that enables
access to the User Services. Each Portal provided hereunder
will have the storage capacity as agreed upon in the
applicable SOW.
1. Maximum Limit. Appiant will notify User when User's
Portal is approaching or exceeds the maximum limit.
Thereafter, if such User exceeds the maximum storage
capacity, Appiant may (i) provide additional storage to
Client at the fees set forth in the applicable SOW (or
if no fees indicated, at Appiant's then-current
standard rates); or (ii) bounce email messages, fax
messages, voice-mail messages, calendar content, and
other content, as applicable, from the affected User's
Portal, at Appiant's discretion.
2. Storage Limitation. Notwithstanding the foregoing, if
Client or its Users are exceeding the maximum storage
limit, Appiant will provide notice to the Client or its
Users that it must either purchase more
3
storage or Appiant will be required to limit such
storage where necessary to protect the Appiant System
(as defined below), with Appiant providing notice to
Client (by e-mail or otherwise).
3. Additional Storage. At any time during the Term, Client
may purchase additional storage for all Portals on a
particular domain or all domains, at the fees set forth
in the applicable SOW (or if no fees indicated, at
Appiant's then-current) standard rates.
iii. Acceptable Use Policy: Client agrees to adhere to Appiant's policy
regarding acceptable use of the inUnisonTM services, a copy of which
is attached to this Agreement and may be viewed at xxx.xxxxxxx.xxx
("Acceptable Use Policy"). Client agrees that prior to each User's
initial use of the User Services, Client will obtain, or will ensure
that its Subscriber obtains binding consent from such User to adhere
to terms of use that are no less restrictive than the Acceptable Use
Policy. Upon 10 days notice (through e-mail notification or otherwise)
to Client, Appiant, in its sole discretion, may modify the Acceptable
Use Policy provided such does not materially impact a Purchase Order
still in effect. Client will be responsible for communicating such
modifications to Users within 10 days of Client's receipt of such
modification.
iv. Unlawful Use. If Appiant becomes aware of or suspects any violation of
the Acceptable Use Policy, Appiant will attempt to notify Client and
provide reasonable detail of such violations.
1. However, Appiant reserves the right to immediately suspend
or terminate any portion of the Designated Services, in
whole or in part, to Client or any User if Appiant
reasonably determines, in its sole discretion, may be in
violation of the Acceptable Use Policy. Appiant may also
take such action when it believes it is reasonably necessary
to protect Appiant's interests or the interests of other
customers or users.
2. If a User uses the User Services in violation of the
Acceptable Use Policy and thereby causes damage or added
expense to Appiant, Client will be liable to Appiant for
such damage or added expense.
3. Client agrees to notify Users that the use of the User
Services, including the initiation or delivery of any spam,
will use or cause to be used Appiant's equipment in the
State of California and that violations of the Acceptable
Use Policy may subject User, as applicable, to criminal or
civil liability, including without limitation liability
under California
4
Business & Professions Code Section 17538.45. Client will
cooperate with Appiant in investigations and other actions
taken for suspected or known violations of the Acceptable
Use Policy.
v. Additional Restrictions. Client agrees that it will not, and will not
permit any third party to, (i) sell, transfer, lease, license or
sublicense any of the rights granted under this Agreement except as
expressly permitted herein; (ii) attempt to download or otherwise
obtain a copy of any software on the Appiant System (as described
below); or (iii) allow access to the Designated Services to any third
party other than as expressly permitted in this Agreement.
vi. Privacy. Client agrees that prior to each User's initial use of the
User Services, Client will obtain, or will ensure that its Subscriber
obtains, binding consent from such User to adhere to a privacy policy
that allows Appiant to use and disclose all information regarding
Users that is disclosed, collected or generated in connection with the
Designated Services, including without limitation any information
transmitted in connection with the User Services ("User Information")
as follows: (a) as required by law, (b) to provide the Designated
Services, (c) to operate or maintain with the Appiant System, (d) to
monitor the usage of the Designated Services and any trends, or
patterns related thereto, (e) for other purposes that may be
identified by Appiant from time to time upon 10 days notice to Client
(via e-mail or otherwise), as mutually agreed upon by the Parties.
vii. Change Management Procedure. Either Client or Appiant can submit a
request to change the services under an SOW (a "Service Change
Request") or (a "Service Change Order") as described below:
1. Service Change Request. Appiant and Client may submit a
Service Change Request provided the change is to be made
within the scope of the current SOW and will not result in a
change in fees to Client. If Appiant determines that the
Service Change Request will result in a fee change, it will
be processed as a Service Change Order.
2. Service Change Order. Appiant and Client may submit a
written Service Change Order to initiate a change to the
service deliverables that are not within the scope as
defined in the relevant SOW. The Service Change Order must
include:
a. A description of the requested change;
b. The purpose for the change;
5
x. Xxxx of requested implementation;
d. Signature of authorized requester.
3. Appiant will advise Client of the resultant impact of a
Service Change Request or Service Change Order on fees
and Service Fee Schedule for the relevant SOW. Prior to
implementation, the Parties must mutually agree upon
all Service Change Orders. Pending such agreement,
Appiant shall continue to perform and to be paid as if
such Service Change Order had not been requested or
recommended, provided that if either Party proposes a
Service Change Order which represents a material change
in the Operations Services in the other Party's
reasonable judgment, and such Service Change Order
remains outstanding for 30 days or is rejected by the
other Party, either Party shall have the right to
terminate the relevant SOW provided the escalation
procedures under this Master Agreement have been
completed and have failed to resolve this issue.
4. Once a Service Change Order is implemented, the fees to
Client will be adjusted accordingly.
c. Additional Services. "Additional Services" will mean those services
requested by Client of Appiant that are outside the scope of the
Designated Services. If Client requests provision of Additional
Services, Appiant will review such written request, and if the Parties
agree upon a written Purchase Order for such Additional Services,
including any fee adjustments, then Appiant may provide such
Additional Services as set forth in a jointly developed SOW.
d. Equipment. If Client requires the use of any Equipment not set forth
in the applicable SOW, then the Parties will agree upon the details of
identification and use of such Equipment and attach an exhibit
entitled Equipment to the applicable SOW. Both Parties must have a
duly authorized representative sign such an Equipment exhibit.
2. Responsibilities.
a. Client's Responsibilities.
i. Client will appoint an individual ("Client's Contract
Manager") who from the Effective Date will serve as the
primary Client representative under this Master Agreement.
The Client's Contract Manager will (a) have overall
responsibility for managing and coordinating the performance
of Client's obligations under this
6
Master Agreement and (b) be authorized to act for and on
behalf of Client with respect to all matters relating to
this Master Agreement.
ii. As of the Effective Date and continuing for so long as
Appiant requires the same for the performance of the
Services, Client will provide to Appiant, at no charge to
Appiant those resources listed in the relevant SOW.
iii. Client is solely responsible for any written or oral
representations it provides to Users with respect to the
Appiant Technology, including, without limitation, the
inUnison(TM) service and the Appiant System.
b. Appiant's Responsibilities.
i. Appiant will appoint an individual ("Appiant's Contract
Manager") who from the Effective Date will serve as the
primary Client representative under this Master Agreement.
Appiant's Contract Manager will (a) have overall
responsibility for managing and coordinating the performance
of Appiant's obligations under this Master Agreement and (b)
be authorized to act for and on behalf of Appiant with
respect to all matters relating to this Master Agreement.
ii. Appiant will use any agreed upon Client resources or
facilities only in connection with its obligations hereunder
to Client.
4. Proprietary Rights.
a. Appiant Technology. For purposes of this Agreement, "Appiant
Technology" will mean Appiant's proprietary technology, including,
without limitation, any hardware designs, algorithms, designs,
libraries, know-how, trade secrets, instruction manuals, on-line
help files, the inUnison(TM) service, the computer system used by
Appiant to provide the inUnison(TM) service ("Appiant System") all
software (in source and object code form), specifications,
processes, techniques, concepts, ideas, improvements, discoveries,
inventions, and other technology made or developed in connection
with the Services, all derivatives, improvements, enhancements or
extensions thereof conceived, reduced to practice, or developed
during the Term of this Agreement, and all intellectual property
rights related thereto, provided, however, Client will have the
right, title and ownership to certain information as set forth in a
relevant SOW, including but not limited to local DID access numbers,
800 access numbers, URLs, and Subscriber information to the extent
it does not interface with Appiant's obligations in connection with
the Designated Services.
i. Subject to the terms and conditions of this Agreement,
Appiant grants Client a non-exclusive, non-transferable,
royalty-free limited license to use the Appiant Technology
solely in connection with
7
Designated Services during the Term. Appiant and its
licensor retain all rights, title and interest in and to the
Appiant Technology.
ii. Except as permitted by applicable law, Client may not
decompile, reverse engineer, disassemble, modify, rent,
lease, loan, distribute, reproduce, sublicense, assign,
transfer or create derivative works of the Appiant
Technology. Client may not remove, deface or obscure any of
Appiant's or its licensors' proprietary rights notices on or
in the Appiant technology or on output generated by the
Appiant Technology. If a license agreement is included with
any Appiant Technology provided hereunder, to the extent
such license agreement is inconsistent with this Agreement,
Client will be subject to the terms and conditions of such
license agreement with respect to such Appiant Technology.
Client agrees that any violation of such license agreement
will constitute a material breach of this Agreement.
b. User Information. Notwithstanding anything to the contrary herein,
Appiant may use and disclose the User Information in connection with
exercising its rights and performing its obligations under, or as
otherwise expressly permitted by, this Agreement, including, without
limitation, (i) as required by law, (ii) to provide the Designated
Services (iii) to operate or maintain the Appiant System, and (iv) for
its own internal purposes to monitor the usage of the Designated
Services and any trends, or patterns related thereto.
c. Enabling Technology. Client understands that the Designated Services
are enabling technology with evolving functions. Client acknowledges
that Appiant owns the inUnison(TM) services and related documentation,
and all authorized or unauthorized copies or Appiant modifications
thereof, as well as all rights contained in or evidenced by any
copyright, trade secret, patent or other intellectual or industrial
property rights. All physical copies of the Appiant Technology in any
form, including but not limited to diskette or tape media, and related
documentation remain Appiant property.
d. Trademarks. Each Party ("Licensor") hereby grants to the other Party
("Licensee") a revocable, non-exclusive, non-transferable (unless
expressly provided for herein), non-sublicensable (except to
independent contractors performing work on behalf of Licensor),
worldwide, royalty-free fully paid-up license during the Term to use
the trademarks, service marks, slogans and logos ("Marks") designated
by Licensor in any SOW solely for the purposes set forth herein.
Licensor reserves all of its rights in the Licensor Marks and Licensee
claims no rights whatsoever in the Licensor Marks other than those
granted by this Agreement. Any use of the Licensor Marks by Licensee
will be pursuant to and in compliance with Licensor's guidelines for
trademark usage that may be provided by Licensor from time to time.
All goodwill attributed to the Licensor Marks will inure to the
benefit of Licensor exclusively.
8
e. Client Technology. Client agrees that in the course of performing the
Designated Services Appiant may reasonably determine it needs access
to Client's tangible equipment or Client's proprietary technology
("Client Technology"). Therefore, Client hereby grants to Appiant a
nonexclusive, royalty-free license, during the Term, to use the Client
Technology solely for the purposes of delivering the Designated
Services to Client. To the extent that Client or its employees or
contractors participate in the creation or development of technology
with Appiant, Client and Appiant will set forth in a relevant SOW the
determination of rights, title and interest, including all
intellectual property rights in such jointly developed technology.
f. Appiant Tools. Notwithstanding anything in this Agreement to the
contrary, any license of Appiant Technology is granted to Client
exclusive of any and all development tools used by Appiant in
performing the Designated Services which are based on trade secrets or
proprietary information of Appiant or are otherwise owned or licensed
by Appiant (each, an "Appiant Developmental Tool"), Appiant retains
all right, title and interest in and to each Appiant Developmental
Tool.
g. Further Assurances. Each Party shall, at its own expense, promptly
execute and deliver such further documents and take any and all other
action reasonably requested by the other Party from time to time, for
the purpose of fully effectuating the intent and purposes of this
Agreement, including without limitation, each SOW, and to protect the
interests of the other Party, its successors and assignees.
5. Confidential Information.
a. Definition. "Confidential Information" of a Party means (i) any
Appiant Technology, the terms and pricing under this Agreement, and
all information clearly marked as confidential by the disclosing
Party at the time of disclosure or, if disclosed orally, summarized
in writing, marked as confidential and delivered to the receiving
Party within 30 days of disclosure. Confidential Information will
not include information that: (a) is in or enters the public domain
without breach of this Agreement; (b) the receiving Party lawfully
receives from a third party without restriction on disclosure and
without breach of a nondisclosure obligation; or (c) the receiving
Party knew prior to receiving such information from the disclosing
Party or develops independently.
b. Restrictions. Each Party agrees: (i) that it will not use any
Confidential Information of the other Party for any purpose other
than to exercise its rights and perform its obligations under this
Agreement, (ii) that it will not disclose to any third party any
Confidential Information of the other Party except as expressly
permitted in this Agreement, provided, however, that either Party
("Recipient") may (a) disclose the Confidential Information of the
other Party
9
("Discloser") to Recipient's employees and contractors who need to
know such information and who are bound in writing by restrictions
regarding disclosure and use of such Confidential Information
comparable to those set forth herein and (b) use or disclose such
Confidential Information to the extent Recipient is legally
compelled to disclose such Confidential Information, provided,
however, that prior to any such compelled disclosure, Recipient will
give Discloser reasonable advance notice of any disclosure and will
cooperate with Discloser in protecting against any such disclosure
and/or obtaining a protective order narrowing the scope of such
disclosure and/or use of the Confidential Information, and (iii)
that it will take all reasonable measures to maintain the
confidentiality of all Confidential Information of the other Party
in its possession or control, which will in no event be less than
the measures it uses to maintain the confidentiality of its own
confidential or proprietary information of a similar nature.
6. Most Favored Client and Non-Compete. During the Term, Appiant will not give
more favorable prices to any substantially similarly situated customer than
available to Client hereunder, except for government or non-profit
organizations. In return, Client will not enter into an agreement with any
party except Appiant with regard to services substantially similar to the
Designated Services. If Client does enter into an agreement with a third
party in connection with services substantially similar to the Designated
Services, Client will immediately pay to Appiant any sum Appiant provided,
including the amount referenced in the letter dated February 10, 2001.
7. Payment.
a. Fees. Client will pay Appiant the fees more particularly described
on an exhibit attached to the relevant SOW (the "Service Fee
Schedule"). The Parties will agree in writing to features and
related prices prior to presenting them to prospective Subscribers.
During the first 12 months of the Initial Term, Appiant will issue
to InPhonic warrants to acquire 2 shares for each Subscriber up to a
total of 200,000 shares. As previously agreed in the letter dated
February 10, 2001, executed by Messrs. Xxxx and Xxxxxxxxx, the terms
and conditions of such warrants will be set forth in a Warrant
Agreement, which is subject to approval by the Board of Directors of
Appiant.
b. General Payment Terms. Monthly recurring charges will be billed in
advance of the provision of Designated Services. All other charges
for Designated Services provided and expenses incurred during a
month (e.g., professional services, and additional bandwidth),
subject to the prior written approval (which shall not unreasonably
be withheld) by the Client, will be billed at the end of the month
in which the Designated Services were provided. All payments are due
30 days after the invoice. Appiant may charge a late fee of one and
1.5% per month, or, if less, the maximum amount allowed by
applicable law, for payments made by Client after the due date.
Client will cooperate with Appiant to arrange for electronic payment
of each monthly invoice.
10
c. Taxes. Except as specifically stated to the contrary in the
relevant SOW, all amounts payable under this Agreement will be
made in U.S. dollars, and are exclusive of any sales, use,
excise, property or any other taxes associated with the provision
of the Designated Services or User Services. Client is
responsible for payment of any and all such taxes (excluding
taxes based on Appiant's new income). If Client is required by
law to deduct or withhold any taxes, levies, imposts, fees,
assessments, deductions or charges from or in respect of any
amounts payable hereunder to Appiant, (i) Client will pay the
relevant taxation authority the minimum amounts necessary to
comply with the applicable law, (ii) Client will make such
payment prior to the date on which interest or penalty is
attached thereto, and (iii) the amounts payable hereunder will be
increased as may be necessary so that after Client makes all
required deductions or withholdings, Appiant will receive amounts
equal to the amounts it would have received had no such
deductions or withholdings been required.
8. Warranties.
a. Appiant Disclaimer. ALL DESIGNATED SERVICES, AND SERVICES
RENDERED OR EQUIPMENT SUPPLIED IN CONNECTION WITH THIS AGREEMENT,
ARE RENDERED AND SUPPLIED "AS IS," UNLESS SPECIFICALLY NOTED TO
THE CONTRARY. APPIANT AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY
KIND, WHETHER EXPRESS OR IMPLIED. REGARDING THE DESIGNATED
SERVICES, AND SERVICES RENDERED OR EQUIPMENT SUPPLIED IN
CONNECTION WITH THIS AGREEMENT AND SPECIFICALLY DISCLAIM THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE
MAXIMUM EXTENT PERMITTED BY LAW.
b. Authorization. Each Party represents and warrants to the other
Party that it has the right to enter into and perform this
Agreement and that performance by such Party of its obligations
hereunder will not cause it to be in breach of any other
agreement to which it is a party.
c. Pass-Through Warranties. To the extent it is allowed, Appiant
will pass through to Client rights it obtains under warranties or
indemnities given by any subcontractors or suppliers in
connection with any work or product provided by Appiant pursuant
to this Agreement.
d. Client's Responsibilities. Client will be solely responsible for
any warranties it provides to Users with respect to the
Designated Services, including, without limitation, the
inUnison(TM) service and the Appiant System.
11
9. Limitation of the Liability. IN NO EVENT WILL EITHER PARTY'S LIABILITY
ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR ANY DAMAGES OR LIABILITY
FROM ANY CAUSE WHATSOEVER, REGARDLESS OF FORM OF ACTION, WHETHER IN
CONTRACT, NEGLIGENCE OR OTHERWISE, EXCEED THE AMOUNT PAID BY CLIENT TO
APPIANT HEREUNDER IN THE 12 MONTHS PRIOR TO ANY CLAIM. EXCEPT WITH RESPECT
TO EITHER PARTY'S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER
PARTY, OR ITS SUPPLIERS, BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD
PARTY, FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE OR
INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF
THE PARTY OTHERWISE LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. NEITHER PARTY WILL BE LIABLE FOR ANY ACTUAL OR ALLEGED
INFRINGEMENT BY ANY THIRD PARTY MATERIALS ACCESSED, TRANSMITTED OR
OTHERWISE MADE AVAILABLE THROUGH THE DESIGNATED SERVICES OR APPIANT OR
CLIENT TECHNOLOGY.
10. Indemnification.
a. Appiant Indemnity. Appiant will defend Client from and against
any and all third-party claims, actions or demands ("Claim")
against Client and pay all related damages, costs and other
liabilities finally awarded against Client by a court of
competent jurisdiction or obtained through settlement to the
extent such Claim is based on a claim that the Appiant Technology
infringes any valid United States patent, copyright or trade
secret or that the Appiant Marks infringe any valid trademark or
copyright of a third party. These obligations do not include any
claims to the extent they are based on use of the Appiant
Technology in violation of this Agreement or in combination with
any other software or hardware, or any modification to the
Appiant Technology, either by Clients or Users or by Appiant,
pursuant to Client's specifications (including without limitation
branding of the Co-Branded Portal). If any portion of the Appiant
Technology becomes, or in Appiant's reasonable opinion is likely
to become, the subject of a claim of infringement, then Appiant
may, at its option and expense, (i) procure for Client the right
to continue using such Appiant Technology or (ii) replace or
modify the Appiant Technology so that it becomes non-infringing.
The indemnity obligations set forth in this Section 10 are
contingent upon: (a) Client giving prompt written notice to
Appiant of any such claim(s); (b) Appiant having sole control of
the defense or settlement of the claim; and (c) at Appiant's
request and expense, Client cooperating in the investigation and
defense of such claim(s). THE FOREGOING STATES APPIANT'S SOLE AND
EXCLUSIVE LIABILITY AND CLIENT'S SOLE AND EXCLUSIVE REMEDY FOR
CLAIMS INVOLVING INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS.
12
b. Client Indemnity. Client will defend Appiant from and against any
and all Claims against Appiant and pay all related damages, costs
and other liabilities finally awarded against Appiant by a court
of competent jurisdiction or obtained through settlement, (i)
resulting from Client's marketing or resale of the inUnison(TM)
service under this Agreement, (ii) to the extent such Claim is
based on a claim that the Client Technology infringes any valid
United States patent, copyright or trade secret, and (iii) to the
extent such Claim is based on a claim that the Client Marks
infringe any valid trademark or copyright of a third party;
provided that Client will not be liable with respect to any
claims, actions or demands for which Appiant is liable under
Section 10(a). The indemnity obligations set forth in this
Section 10(b) are contingent upon: (i) Appiant giving prompt
written notice to Client of any such claim(s); (ii) Client having
sole control of the defense or settlement of the claim; and (iii)
at Client's request and expense, Appiant cooperating in the
investigation and defense of such claim(s).). THE FOREGOING
STATES CLIENT'S SOLE AND EXCLUSIVE LIABILITY AND APPIANT'S SOLE
AND EXCLUSIVE REMEDY FOR CLAIMS INVOLVING INTELLECTUAL PROPERTY
OR PROPRIETARY RIGHTS.
11. Dispute Resolution.
a. Initial Step. All disputes, controversies, or claims arising out
of or relating to a Subscriber (each a "Dispute", collectively
"Disputes") shall be referred to the Appiant Project Manager and
the Client Project Manager prior to escalation to Appiant's COO
and Client's COO, with the ultimate escalation to each other's
CEO.
b. Second Step. If the Appiant Project Manager and the Client
Project Manager are unable to resolve the Dispute within 7
business days after referral of the matter to them, notice shall
be given to Appiant's COO and Client's COO about the matter, who
will then have 4 business days to resolve the Dispute, otherwise
the matter will then be referred to each other's CEO for
resolution.
c. Final Step. If the CEOs are unable to resolve, or do not
anticipate resolving, the dispute within 3 days after referral of
the matter to them, the Parties will submit the Dispute to
arbitration.
d. No Legal Proceedings. Neither Party will institute legal
proceedings against the other with respect to a Dispute until
after the Dispute has been considered by the CEOs of each
respective Party, without prejudice to the legal position of
either Party.
e. Payment Provisions During Dispute. Client will not withhold
payments during a dispute, but instead, pay Disputed amounts into
an escrow account,
13
which will be promptly dispersed to the appropriate party upon
resolution of the Dispute.
f. Discussions and Documents. Discussions and correspondence among
the representatives referenced in this Section 11 and prepared
for purposes of the dispute negotiations shall be treated as
confidential information developed for purposes of settlement,
shall be exempt from discovery and production, and shall not be
admissible in any arbitration or judicial proceeding initiated
after the completion of such discussions. Documents identified in
or provided with such communications, which are not prepared for
purposes of the negotiations, are not so exempted and may, if
otherwise admissible, be admitted in evidence in any subsequent
proceeding.
12. Termination.
a. Termination for Breach Other than Non-Payment. Either Party,
except for failure to pay, may terminate this Agreement by giving
to the other Party notice of such termination upon the occurrence
of any of the following events (each a "Default"): (i) the other
Party materially breaches or defaults in any of the material
terms or conditions of this Agreement and fails to cure such
breach or default within 60 days of receipt of written notice
thereof or as such other period as agreed upon in a particular
SOW, (ii) the other Party makes any assignment for the benefit of
creditors, is insolvent or unable to pay its debts as they mature
in the ordinary course of business, or (iii) any proceedings are
instituted by or against the other Party in bankruptcy or under
any insolvency laws or for reorganization, receivership or
dissolution.
b. Termination for Non-Payment. If Client defaults in the payment
when due of any amount due to Appiant pursuant to this Agreement
and does not cure such default within 30 days after being given
written notice of such default, Appiant may, by giving written
notice thereof to Client, terminate this Agreement as of the date
of receipt by Client of such notice or as of a future date
specified in such notice of termination.
c. Termination for Convenience. After the Initial Term hereof,
either Party may terminate this Agreement for any reason by
providing 90 days prior notice to the other.
d. Effect of Termination. Upon any termination of this Agreement:
(i) Client will immediately destroy all copies of the Appiant
Confidential Information in its possession or under its control;
and (ii) Appiant will destroy any Client Confidential Information
in its possession or under its control. Within 30 days of
termination or expiration of this Agreement, Client will pay
Appiant all accrued and unpaid fees and charges.
14
e. Migration Upon Termination. Upon notice of termination for any
reason other than Client's material breach, Appiant will provide
reasonable assistance to Client in the migration of the
inUnison(TM) service to a third party service provider as
reasonably requested and paid for by Client, and Client further
agrees to pay for all inUnison(TM) services rendered to Client
until the migration is complete. If termination of this Agreement
is due to Client's breach, Client will, in addition to payment of
all inUnison(TM) service fees, pay for Appiant's assistance in
such migration at Appiant's then-current time and materials rate
and will pay any out-of-pocket expenses incurred by Appiant in
connection with such migration. After migration, Appiant may
delete all stored messages and content of Client and Users on the
Appiant System and will cease providing all Designated Services
and access by Client and Users to the Appiant System.
f. Survival. Sections 8(a) ("Appiant Disclaimer"), 9 ("Limitation of
Liability"), 5 ("Confidential Information"), 10
("Indemnification"), 12 ("Term and Termination") and 13
("Miscellaneous") will survive any expiration or termination of
this Agreement.
13. Miscellaneous.
a. Notices. Notices under this Agreement will be in writing and will
be deemed given when delivered personally, by facsimile (with
confirmation of receipt), or conventional mail (registered or
certified, postage prepaid with return receipt requested).
Notices will be addressed to the Parties and the addresses
appearing in the introductory paragraph of this Agreement, but
each Party may change the address by written notice in accordance
with this paragraph.
b. Assignment. This Agreement will be binding upon and inure to the
benefit of the Parties, their successors and permitted assigns.
Neither Party may transfer or assign this Agreement without the
other party's prior written consent, which consent will not be
unreasonably withheld. Notwithstanding the foregoing, either
Party may assign this Agreement without the other Party's consent
(i) to any entity in which the Party has a greater than
fifty-percent (50%) equity ownership interest or of which the
Party has voting control, (ii) to any entity that buys fifty
percent (50%) or more of the Party's stock or all or
substantially all of that Party's assets, or (iii) as part of a
merger, reorganization or re-incorporation, by operation of law
or otherwise.
c. Relationship of the Parties. In providing the Designated
Services, Appiant is acting only as an independent contractor.
Except as expressly set forth in this Agreement, neither Party
undertakes to perform any obligation of the other Party or any
other person, whether regulatory or contractual, or to assume any
responsibility for the business or operations of the other Party
or any other person. Appiant will not be considered or be deemed
to be an employee, joint-venture or partner of Client or any
other person, and no other
15
similar relationship is intended or created by and between
Appiant and Client. Appiant has the sole right to supervise,
mandate, contract, direct, procure, provide or cause to be
provided all Designated Services. Neither Party will make any
representation, express or implied, that such Party is an
employee, agent or legal representative of the other Party, nor
will either Party assume or incur liabilities or obligations of
any kind to a third party in the name or on behalf of such Party.
Nothing contained in this Agreement is intended or is to be
construed to create a partnership, employment, joint venture or
agency relationship between Appiant and Client.
d. Force Majeure. Appiant will not be deemed to be in default of, or
to have breached, any provision of this Agreement as a result of,
or be liable for any loss, damage or penalty resulting from, any
act, omission or condition beyond Appiant's reasonable control,
including without limitations, acts of God, strikes, lockouts,
riots, acts of war, governmental regulations, fire, power
failure, earthquakes, severe weather, floods or other natural
disaster or Client's, Users' or any third party's actions,
hardware software or communications equipment or facilities (each
a "Force Majeure Event").
e. Press Release. Any press release, public announcement or other
disclosure pertaining to this Agreement or the association of the
Parties with respect to the subject of this Agreement shall be
subject to the prior written approval of the other Party, which
such approval shall not be unreasonably withheld when disclosure
is deemed by the disclosing Party to be legally required of such
Party; provided , however, upon execution of the Agreement the
Parties will work together to agree upon a press release
regarding the relationship between the Parties hereunder.
f. General Provisions. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware
without giving effect to any choice of law rule that would cause
the application of the laws of any jurisdiction other than the
internal laws of the State of Delaware to the rights and duties
of the parties. The Parties hereby waive and disclaim the
applicability of the provisions of the United Nations Convention
on the International Sale of Goods.
g. Export Regulations. This Agreement is expressly made subject to
any United States government laws, regulations, orders or other
restrictions regarding export from the United States of hardware,
software, technical data or products thereof. Notwithstanding
anything to the contrary in this Agreement, neither party will
directly or indirectly export (or re-export), or permits the
transshipment of, and hardware, software, technical data or
products thereof (i) to any country or destination for which the
United States government or a United States governmental agency
requires an export license or other approval for export without
first having obtained such license or other approval or (ii)
otherwise contrary to United States law. Except as
16
specifically stated in a relevant SOW to the contrary, Client
bears the obligation for its Subscribers and Users for any export
of such items and all taxes, fees, and issues that flow
therefrom.
h. Sublet Headings. The subject headings or captions of the sections
and subsections of this Agreement are included solely for
purposes of convenience and reference only and will not be deemed
to explain, modify, limit, amplify or aid the meaning,
construction or interpretation of any of the provisions of this
Agreement.
i. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
j. Entire Agreement. This Agreement sets forth the entire
understanding of the Parties hereto with respect to the subject
matter hereof and supersedes all prior and contemporaneous
letters of intent, agreements, covenants, negotiations,
arrangements, communications, representations, understanding or
warranties, whether oral or written, by any officer, employee, or
representative of either party relating thereto. There are no
other understandings, statements, promises or inducements, oral
or otherwise, contrary to the terms of this Agreement. No
representations, warranties, covenants or conditions, express or
implied, whether by statute or otherwise, other than as set forth
herein have been made by either Party hereto.
k. Waiver. No delay or omission by either party to exercise any
right or power provided under this Agreement, whether by conduct
or otherwise, in any one or more instances, will impair any such
right or power or be deemed to be a waiver or release thereof of
any other right or power, whether or not similar. No waiver will
be binding unless executed in writing by the Party making the
waiver. Except as otherwise expressly provided herein, all
remedies for this Agreement will be cumulative and in addition
to, not in lieu of, any other remedies available to either Party
at law, in equity or otherwise.
l. Reformance/Severability. If any provision of this Agreement is
declared invalid by any court of competent jurisdiction, then
such provision will be deemed automatically adjusted to the
minimum extent necessary to conform to the requirements for
validity as declared at such time and, as so adjusted, will be
deemed a provision of this Agreement as though originally
included herein. If the provision invalidated is of such a nature
that it cannot be so adjusted, the provision will be deemed
deleted from this Agreement as though such provision had never
been included herein. In either case, the remaining provisions of
the Agreement will remain in effect.
m. Order of Precedence. Any inconsistency between this Agreement and
a SOW shall be resolved by giving priority and precedence in the
following
17
order: (a) first to be relevant SOW(s) including all attachments
thereto, (b) the Master SOW, and (c) then to this Master
Agreement, provided that the Master Agreement terms and
conditions will met to the fullest extent possible.
n. Inspection. Client has the right to audit or otherwise examine
(or have audited or examined) all applicable books, records,
documents, and other data of the other Party (including
computations and projections) directly relating to Subscribers
under a particular SOW. Appiant has the right to audit or
otherwise examine (or have audited or examined) all applicable
books, records, documents, and other data of the other Party
(including computations and projections) directly relating to
Appiant's obligations under a particular SOW. The Party allowing
the audit shall make available at its office at all reasonable
times the materials described in the preceding paragraph of this
Section for examination, audit, or reproduction for a period of
three (3) years after termination of this Master Agreement or the
applicable SOW.
o. Insurance. Appiant and Client shall maintain the following
insurance coverage: statutory workers' compensation, employer's
liability, comprehensive automobile liability with a combined
single limit of $1,000,000 for each occurrence for bodily injury
and property damage liability, and comprehensive commercial
general liability in an amount of not less than $1,000,000.00 per
occurrence and $2,000,000.00 in the aggregate, and errors and
omission insurance in an amount not less than $2,000,000.00. The
Parties shall immediately notify each other upon receipt of
notice of cancellation of any policy.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives.
APPIANT TECHNOLOGIES, INC. INPHONIC, INC.
By /s/ Xxxxxxx X. Xxxx By /s/ Xxxxx X. Xxxxxxxxx
___________________________ ___________________________
18
MASTER SOW
This Master SOW is to be used in connection with the Master Services Agreement
executed by Appiant Technologies, Inc. ("Appiant") and InPhonic, Inc.
("Client"), the terms of which are incorporated herein by reference.
The inUnison(TM) implementation for Client is a managed service offering from
Appiant. Appiant will host the hardware and software required for this service,
and will provide Client administrative access to the system. Client will be
responsible for provisioning service (either through subscriber
"self-provisioning" or Client administrative provisioning) for their customers,
and providing first-level technical support for the inUnison(TM) product, which
should be further detailed in the relevant SOW. Client may choose to xxxx or
have Appiant xxxx their customers for the inUnison(TM) product (i.e., credit
card billing, etc.), accounting for sales to Subscribers, and remitting payments
to Appiant on a monthly basis, together with supporting data in sufficient
detail to enable auditing by Appiant.
The inUnison(TM) Features available Consolidated Message Store; Any Device
Access; Calendaring; Contact Manager; Single Number Reach; Call Screening;
Outbound Calling; Bounce Back Features; Toll Free Access; Synchronization;
Web-Based Administration; Text to Speech; Speech Recognition; and Message
Notification. The inUnison(TM) Future Release available for launch, including
Call Whisper; Call Transfer; Call Conferencing; Team Messaging; Integration of
the Signup Factory; and Minute Bundle Replenishment; and XML Formatted Agency
Feeds. Appiant will diligently pursue having Voice On Demand and Fax on Demand
for launch. Call Blast is available as a post launch feature.
Appiant will provide the software and hardware for this project. The
inUnison(TM) product will be provided via a standard implementation of Cisco
Systems' Cisco Unified Open Network Exchange (Cisco uOne) unified messaging
platform. The scope of this project is to provide basic inUnison(TM) products
using this platform.
3. Description of Network Component.
a. Client will contract with Appiant to design and
implement the Designated Services to support up to
50,000 and expand to 850,000 subscribers during the
first year of operation.
b. The first phase of this project calls for the design,
implementation and transition of Subscribers to support
the inUnison(TM) unified information system that will
host Subscribers.
c. Appiant will be coordinating all with Hewlett Packard
who will host the inUnison(TM) environment.
4. Network Design
a. Appiant will use our Voice over IP Partner network as the
medium to transport all VOIP calls to and from the
inUnison(TM) Portal.
b. Appiant will assist in the design and configuration of all
existing Cisco components that will need QOS features turned
on, to prioritize all VOIP packets both locally and
remotely.
c. Appiant will design the call flow to terminate all SNR, ANI
callback and outbound dial calls to be placed from the
inUnison(TM) server through the Cisco AS5300 Gateways out to
the PSTN utilizing Appiant's circuit connections.
d. Set forth below is the Network Design.
NETWORK DESIGN
[graphic]
This design is subject to modification and is meant as a starting guide only. As
with other sections of this Master SOW, the Parties will work together to make
the relevant SOW reflect the intent of the Parties and meet the specifications
of such particular SOW. When agreed upon in writing, a new Master SOW can be
substituted for this Master SOW.
Infrastructure Description
Appiant owns all hardware and software necessary to deliver the inunison
solution. HP is providing the facility and managing the infrastructure.
Subscribers will connect Inunison using 800 numbers or local DIDs. Calls will be
terminated within the Appiant data center. Subscribers will have the option of
using a number that is assigned specifically to them or a general use number for
access to their portal. Subscribers will also have the ability to connect to the
data center via a web interface over the public internet.
All hardware and software revisions provided by the manufacturers of the
infrastructure hardware and software will be evaluated for implementation into
the data center. Upgrades pushed into production will happen during scheduled
downtime.
Implementation Services
1. Appiant and Client both have tasks that must be completed before Appiant
can commence delivery of Operations Services. The implementation services
will facilitate the actual transition, identity important contact personnel
and gather the required information to begin the delivery of the Designated
Services by Client.
2. Activities that may be performed:
. Client will provide Appiant with contact information (i.e.,
voice, e-mail addresses, etc.) for Client personnel providing
inUnison(TM) services to Client.
. Appiant will assign a Project Manager as the single point of
contact.
. Appiant will provide Client with documentation, in electronic
format, describing the communication process.
3. Client Responsibilities
. Client will provide a list of authorized callers and what each is
authorized to request.
. Client will provide complete information regarding customers' existing
voice mail systems, including but not limited to, network diagram(s),
existing network connectivity, network resources utilized (i.e., 800
numbers, DID numbers, etc.), existing network provider, additional
information to legacy system.
. Client will provide complete information regarding legacy billing and
provisioning systems and functionalities.
. Client will assign project manager to the project for start-up and
on-going support functions.
4. Joint
. Appiant and Client will work with Subscribers to establish specific
billing and provisioning needs.
. Appiant and Client will work with customer to determine feature set
required for implementation.
5. Subscriber will need to provide the following:
. Project team contact information
. Number of customers:
How many different companies?
How many users per company?
How many areas (geographical)?
. Specialized portal requirements.
. Access number
. DID's or 800#s
. Web information
. Domain name
. Mailbox Naming convention
. Provisioning online number preference
. What Marketing tools they want to use (flyers, GUI, etc.)
. Do they want branding?
If so they need to provide their company logo (3" wide), saved
in .tif, .gif or .jpeg
. What services (features/functionality) do they want to offer
. Training requirements
. What type of training do they require?
CSR
Field Agents
Administration
. Web-based training, training tools e.g., user manual, quick reference
guides, F&Q's, etc.
. Do they want to do their own provisioning?
. Level of customer service?
. What billing system will they use?
6. Service Levels
. Billing. Appiant will provide the ability to xxxx on in-bound and out-bound
calling and Subscriber Monthly Fees in incremental 6 second cycles. There
may also be a standard base fee for such billing services, which must be
set forth in a relevant SOW to be effective. Credit Card Billing will be
provided monthly, where Appiant will issue the credit card charge and
transmit it electronically to Client. To allow Appiant to provide this
service, Client will provide to Appiant in a timely manner, credit card
numbers and an account number to which Appiant will transmit. Client is
responsible for all chargebacks.
. Help Desk Support. Appiant will provide second level support, with Client
providing first level support.
a. Appiant will provide 6:00 am to 6:00 pm (PST) Subscriber support.
b. Appiant will provide Web Based support that can be reached
through an internet address and an 800 dial-in number.
c. Appiant will provide a "Train the Trainer" program for two Client
employees, which will be twice a year on Appiant's site. Client
maintains it will have such trained employees train the number of
employees agreed upon by the Parties and set forth in an
applicable SOW.
. Downtime. The objective of the Parties is to achieve service level
commitments of 99.5% for scheduled system availability in each SOW,
with the understanding that there will be 12 hours annual scheduled
down time and 48 hours annually for system degradation. Anything that
is solely under Appiant's direct control requires Appiant to respond
to any outage within 30 minutes.
7. Content of SOWs
(a) The incorporation, by reference, of the Master Agreement.
(b) The designation of a unique identifying number.
(c) A detailed description of the deliverables to be provided by each
party, including any documentation or training to be provided by
each party.
(d) A description of any standards or constraints to be applied to
the Designated Services performed by Appiant.
(e) A description of the consideration and terms of payment for the
Designated Services or deliverables.
(f) A description of any items of expense authorized for
reimbursement to Appiant and the basis for such reimbursement.
(g) The name, address and telephone number of Client's Project
Manager and Appiant's Project Manager.
(h) A description of assumptions or contingencies of either or both
parties.
(i) The term of the SOW and signatures of authorized representatives
of Client and Appiant.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
APPIANT TECHNOLOGIES, INC. INPHONIC, INC.
By /s/ Xxxxxxx Xxxx By /s/ Xxxxx X. Xxxxxxxxx
------------------------------ --------------------------
