Exhibit 99.1
[LOGO OF VIPdesk (R)]
SERVICES AGREEMENT
This Call Taking Services Agreement (the "Agreement") is entered into as of May
9, 2007 ("Effective Date"), by and between VIPdesk Connect, Inc. ("VIPdesk"), a
Delaware corporation with its principal place of business at 000 X. Xxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 and Bluefly Inc. ("Client") a Delaware
corporation with its principal place of business at 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, XX 00000 (collectively, the "Parties"), and includes all Schedules,
Attachments and Exhibits hereto (collectively, the "Agreement").
1. DEFINITIONS
1.1 "Services" means the process of routing calls, emails and other Customer
communications to Call Taking Professionals for achieving the results as
outlined in the Statement of Work entered into as of [date] .
1.2 "Client Marks" means all Client domain names, trademarks, tradenames,
service marks, service names, logos, copyrighted material and related
intellectual property.
1.3 "Call Taking Professionals" or "Brand Ambassadors" means those individuals
that are responding to customer service calls to produce the results outlined in
the attached SOW. All Call Taking Professionals and Brand Ambassadors shall be
located in States approved in writing by Client.
1.4 "Customer Service Data" means all data and information gathered through the
interaction with a customer in connection with the Services.
1.5 "Confidential Information" will mean all written or oral information,
disclosed by either Party to the other, related to the operations of either
Party or a third party that has been identified as confidential or that by the
nature of the circumstances surrounding disclosure ought reasonably to be
treated as confidential. Without limitation, all Customer Information is
Confidential Information
1.6 "Customer" means a caller that is contacting Client for assistance or
information or has otherwise purchased from registered with, or interacted with
Client's website.
1.7 "Customer Information" shall mean any information relating to one or more
Customers, including, without limitation, contact information that includes the
Customer name, address, telephone number, any customer identification number
and/or credit/charge card number supplied to VIPdesk by Client or Customer, any
information relating to Customer's purchases on, or interactions with, Client's
website, and any information created by Client, VIPdesk or any Brand Ambassador
for use in connection with the provision of services hereunder.
1.8 "Implementation Date" means the date described in Section 5.1 on which Call
Taking Professionals are expected to be prepared to receive phone calls.
1.9 "Licensed Technology" means VIPdesk's proprietary technology for the
delivery and routing of calls to the Call Taking Professionals and managing call
recording, statistics, reporting and program certification.
1.10 "Party" or "Parties" means individually or collectively, as the case may
be, VIPdesk and Client and any and all permitted successors and assigns.
1.11 "Term" has the meaning set forth in Section 11.
1.12 "VIPdesk Marks" means all VIPdesk owned domain names, trademarks,
tradenames, service marks, service names, logos copyrighted material and related
intellectual property.
2. FEES; PAYMENT TERMS
Fees; Payment. During the term of this Agreement, Client agrees to compensate
VIPdesk as set forth in the attached SOW. Client, will pay all amounts due to
VIPdesk fifteen (15) days after receipt of invoice date via electronic funds
transfer (EFT). Any amounts due under this Agreement not received by VIPdesk by
the due date will be subject to a service charge from the due date of one and
one half percent (1 1/2%) per month, or the maximum charge permitted by law,
whichever is less. In the event that it becomes necessary for VIPdesk to incur
collection costs or legal fees associated with the enforcement of the unpaid
debt, or any portion thereof, Client agrees and promises to pay any and all such
additional costs, charges, and expenses, including reasonable attorney's fees if
the account is placed with an attorney for collection.
2.1 Taxes. Should taxes be imposed by any federal, state, or local governmental
entity for services provided under this Agreement, Client will calculate and pay
all taxes, duties or charges of any kind (including withholding or value added
taxes), excluding taxes based solely on VIPdesk's net income. Client will hold
VIPdesk harmless from all claims and liability arising from Client's failure to
support or pay any such taxes, including duties, tariffs or charges.
2.2 Reimbursable Expenses. Upon prior approval, Client will reimburse VIPdesk
for incidental expenses incurred by VIPdesk for any activities at the Client's
location or on the Client's behalf. Incidental expenses shall include, without
limitation, travel and living expenses, mileage for local travel, or such other
charges. Client agrees to reimburse such approved expenses within thirty (30)
days of the receipt of an invoice setting forth such expenses.
3. LICENSES
3.1 License Grant. Subject to the terms and conditions contained in this
Agreement, VIPdesk hereby grants to Client a non-exclusive, non-transferable
right and license to access the features and functions of the Licensed
Technology during the Term for the limited purposes of performing its
obligations under this Agreement.
3.2 Usage Restrictions. Client will not (i) copy or duplicate the Licensed
Technology; (ii) decompile, disassemble, reverse engineer or otherwise attempt
to obtain or perceive the source code from which any software component of the
Licensed Technology is compiled or interpreted, and Client acknowledges that
nothing in this Agreement will be construed to grant Client any right to obtain
or use such source code; (iii) modify the
Licensed Technology, or create any derivative product from any of the foregoing,
except with the prior written consent of VIPdesk; or (iv) assign, sublicense,
sell, resell, lease, rent or otherwise transfer or convey, or pledge as security
or otherwise encumber, Client's rights under the licenses granted in Sections
3.1. Client will ensure that its use of the Licensed Technology complies with
all applicable laws, statutes, regulations or rules promulgated by governing
authorities having jurisdiction over the Parties or the Licensed Technology.
3.3 Client Marks License. Subject to the terms and conditions contained in this
Agreement, Client hereby grants to VIPdesk a non-exclusive, non-transferable
right and license to use the Client Marks during the Term for the limited
purposes of performing its obligations under this Agreement. Furthermore,
VIPdesk will not (i) modify the Client Marks or create any derivative product
from the foregoing, except with the prior written consent of Client or (ii)
assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey,
or pledge as security or otherwise encumber, VIPdesk's rights under the license
granted in this Section 3.3. All use by VIPdesk of the Client Marks will
strictly comply with such usage guidelines as Client may specify from time to
time. VIPdesk will ensure that its use of the Client Marks complies with all
applicable laws, statutes, regulations or rules promulgated by governing
authorities having jurisdiction over the Parties.
3.4 Retained Rights; Ownership. Subject to the rights granted in this
Agreement, VIPdesk retains all right, title and interest in and to the Licensed
Technology and the VIPdesk Marks, and Client acknowledges that it neither owns
nor acquires any additional rights in and to the foregoing not expressly granted
by this Agreement. Client further acknowledges that VIPdesk retains the right to
use the foregoing for any purpose in VIPdesk's sole discretion. Subject to the
rights granted in this Agreement, Client retains all right, title and interest
in and to Client Marks and Client and/or Customers retain all right, title and
interest in and to Customer Information, and VIPdesk acknowledges that it
neither owns nor acquires any additional rights in and to the foregoing other
than the rights expressly granted by this Agreement. However, the Parties
acknowledge that VIPdesk has an unlimited right to use Customer Information as
follows: (i) in its aggregate form to compile certain information related to the
total contacts managed by VIPdesk as long as such information in no way reveals
the identification of the Customers or Client, (ii) to provide Services pursuant
to this Agreement and (iii) as required by law (provided that, to the extent
that VIPdesk believes that it is required by law to use any such information it
shall (to the extent permissible under applicable law) provide Client with at
least five (5) business days' prior written notice and an opportunity to object
prior to such use).
4. VIPDESK OBLIGATIONS. VIPdesk will provide the Services in accordance
with the attached SOW and, in connection therewith will be responsible for the
following:
4.1 Provision of Access to Licensed Technology. VIPdesk will make available to
Client program the use of the features and functions of the Licensed Technology.
VIPdesk will specify to Client procedures for Client to deliver calls to
VIPdesk. Client may establish and obtain access to (i.e. call recording,
reporting, quality tool, Brand Ambassador Gateway), and use of, the Licensed
Technology including, without limitation, provision of any access codes,
passwords, technical specifications, connectivity standards or protocols, or any
other relevant procedures.
4.2 Hosting of Licensed Technology. VIPdesk will, at its own expense, provide
for the hosting of the Licensed Technology; provided that nothing in this
Agreement will be construed to require VIPdesk to provide for, or bear any
responsibility with respect to, the design, development, operation technical
support, or maintenance of any telecommunications or computer network, Client
Web Site, hardware or software required by Client to interact with their
customers. VIPdesk will be permitted to enter into an arrangement with one or
more third Parties for the performance of VIPdesk's obligations under this
Section 4.2, provided that VIPdesk shall remain responsible for any failure to
perform in accordance with the terms of this Agreement.
4.3 Account Client Manager; Approval Rights. VIPdesk will appoint an Account
client manager, who will be the primary point of contact and responsible party
for issues relating to this Agreement. Client will have the right to approve the
account manager, and no account manager will be switched from Client's account
without its prior consent, other than in connection with the account manager's
promotion to a management position or the termination of the account manager's
employment with VIPdesk. In the event that Client is dissatisfied with the
performance of any Brand Ambassador and the Client presents reasonable
justification as to this dissatisfaction, and the Parties are unable to resolve
such dissatisfaction to Client's reasonable approval, VIPdesk will remove that
person from the Client's account and shall cover the costs of background checks
and certifications for that person's replacement.
4.4 Reports. VIPdesk will provide Client with VIPdesk standard monthly reports
providing call distribution and statistics including (without limitation), Web
based accessed to the reporting tools previously presented to Client (which,
among other things, will allow Client to run ad hoc reports), and weekly,
monthly and quarterly analyses.
5. IMPLEMENTATION SERVICES
5.1 Implementation Services. VIPdesk will provide the Implementation Services
as set forth in this Section 5 or developed in a jointly agreed upon
implementation plan. Except as set forth in this Section 5 or jointly agreed
upon implementation plan, VIPdesk will have no obligation to provide any
implementation or customization services to Client. Implementation of the
Services shall be completed on the date outlined in the implementation plan as
approved by Client. In the event that implementation is not completed as of such
date, Client shall have the right to terminate this Agreement upon written
notice to VIPdesk, unless notwithstanding the foregoing, VIPdesk shall not be
responsible for any delays in its performance under this Agreement or in its
implementation of the Services to the extent that such delays are directly
attributable to the conduct of Client, provided that, in any event in which
VIPdesk reasonably believes an occurrence may give rise to an extension of the
Implementation Date, VIPdesk shall provide Client with written notice of such
conduct within two (2) business days of such occurrence. Where such delays occur
and VIPdesk provides the required notice, the Implementation Date shall be
adjusted by a period equal to the period of such delay. Any material changes to
the Services requested by Client subsequent to the Implementation Date or which
deviate from the statement of work shall be subject to VIPdesk's written
approval and the change order charges set forth in the attached SOW.
(a)Implementation Obligations and Schedule. The Parties will use
commercially reasonable efforts to diligently implement their respective
obligations under the approved Implementation Plan which will include a detailed
list of deliverables, dates and respective owners. Each party shall
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reasonably cooperate with the other party in effectuating their respective
duties at their own expense.
6. MARKETING OBLIGATIONS
6.1 Client Marketing Plans. Client will provide any relevant marketing
campaigns, plans, and copy prior to marketing launch date to enable VIPdesk to
update Brand Ambassadors should customers reference campaign.
7. NON-SOLICITATION.
7.1 During the term of this Agreement and for one (1) year after the expiration
or termination of this Agreement, each Party hereby covenants and agrees that it
shall not directly solicit for employment any employee of the other Party who
had any direct involvement in performing any of the obligations under this
Agreement. In the event that either Party violates this Section 7.1, the
violating Party shall pay the other Party liquidated damages in an amount equal
to twenty percent (20%) of the hired employee's first year annual compensation
including any bonuses.
8. TREATMENT OF CONFIDENTIAL INFORMATION
8.1 Ownership of Confidential Information. Both Parties agree that all items of
Confidential Information are proprietary to the disclosing Party or such third
party as owns such information, as applicable, and will remain the sole property
of the disclosing Party or such third party (as applicable).
8.2 Mutual Confidentiality Obligations. Each Party agrees as follows: (i) to
use Confidential Information disclosed by the other Party only for the purposes
described in this Agreement; (ii) that such Party will not reproduce
Confidential Information disclosed by the other Party, and will hold in
confidence and protect such Confidential Information from dissemination to, and
use by, any third party; (iii) that neither Party will create any derivative
work from Confidential Information disclosed to such Party by the other Party;
(iv) to restrict access to the Confidential Information disclosed by the other
Party to such of its personnel, agents, and/or consultants, if any, who have a
need to have access and who have been advised of and have agreed in writing to
confidentiality provisions that are at least as protective as those contained in
this Agreement; and (v) to return or destroy all Confidential Information
disclosed by the other Party that is in its possession upon request after
termination or expiration of this Agreement.
8.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions
of Sections 8.1 and 8.2 will not apply to Confidential Information that (i) is
publicly available or in the public domain at the time disclosed; (ii) is or
becomes publicly available through no fault of the recipient; (iii) is
rightfully communicated to the recipient by persons not bound by confidentiality
obligations; (iv) is already in the recipient's possession free of any
confidentiality obligations at the time of disclosure; or (v) is independently
developed by the recipient. In addition, each Party may disclose Confidential
Information of the other Party (1) in response to an order of a court or other
governmental body, provided that the Party making the disclosure pursuant to the
order will first have given notice to the other Party and made a reasonable
effort to obtain a protective order, (2) as required by law or regulation to be
disclosed or (3) in order to establish a Party's rights under this Agreement,
including to make such court filings as may be required, provided that in each
case, the Party required to disclose minimizes such disclosures to the extent
legally permissible, and in the case of clause (2) above, provides the
disclosing Party with written notice prior to such disclosure and an opportunity
to object to the extent legally permissible.
9. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY
9.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED TECHNOLOGY AND SERVICES ARE
PROVIDED "AS IS," AND VIPDESK DISCLAIMS ANY AND ALL OTHER PROMISES,
REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT. VIPDESK DOES NOT WARRANT
THAT THE LICENSED TECHNOLOGY OR SERVICES WILL MEET CLIENT'S REQUIREMENTS OR THAT
THE OPERATION OF THE LICENSED TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE, OR
THAT ALL ERRORS WILL BE CORRECTED. VIPDESK MAKES NO ENDORSEMENT AS TO THE
PRODUCTS AND SERVICES OFFERRED OR AVAILABLE THROUGH THE CLIENT SERVICES.
9.2 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM,
INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF
DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION,
OR (EXCEPT AS SET FORTH IN SECTION 10) LIABILITIES TO THIRD PARTIES ARISING FROM
ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT
REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE
PROVEN INEFFECTIVE. IN ANY EVENT, THE CUMULATIVE LIABILITY OF EITHER PARTY TO
THE OTHER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT
LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR DUE TO VIPDESK BY
CLIENT UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY
WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED
OR HAVE PROVEN INEFFECTIVE.
9.3 Essential Basis of the Agreement. Each Party acknowledges and understands
that the disclaimers, exclusions and limitations of liability set forth in this
Section 9 form an essential basis of the agreement between the Parties, that the
Parties have relied upon such disclaimers, exclusions and limitations of
liability in negotiating the terms and conditions in this Agreement.
10. INDEMNIFICATION
10.1 Indemnification of Client. VIPdesk agrees to indemnify, defend and hold
harmless Client from and against any and all losses, liabilities, costs
(including reasonable attorneys' fees) or damages resulting from any claim by
any third Party (i) to the extent arising out of gross negligent or willful acts
by VIPdesk and/or its Call Taking Professionals; (ii) to the extent resulting
from the provision of Services by VIPdesk hereunder; (iii) to the
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extent resulting from VIPdesk's failure to perform its obligations hereunder;
(iv) to the extent resulting from VIPdesk's violation of any federal, state or
local law, rule or regulation; (v) by any employee or former employee of VIPdesk
or any of its permitted agents or subcontractors for which VIPdesk or its
permitted agent or subcontractor (as applicable) would otherwise be subject to
payment or liability under State worker's compensation laws or similar laws, or
any federal, state or local law related to employment; and (vi)that the Licensed
Technology, Services or VIPdesk Marks infringe such third Party's intellectual
property rights, provided that, notwithstanding the foregoing, VIPdesk will have
no obligation to indemnify Client if the alleged infringement arises, in whole
or in part, due to modification of the foregoing by Client. If any claim for
which indemnity is or may be sought is made or appears reasonably possible,
Client agrees (i) promptly to notify VIPdesk in writing; (ii) to cooperate with
VIPdesk, and to allow VIPdesk sole authority to control the defense and
settlement of such claim; and (iii) to permit VIPdesk, at VIPdesk's sole
discretion, to enable Client to continue to use the Licensed Technology or to
modify or replace any such infringing material to make it non-infringing,
provided that, if VIPdesk determines that none of the foregoing alternatives is
reasonably available, Client will, upon written request from VIPdesk, cease use
of, and, if applicable, return, such materials as are the subject of the
relevant infringement claim.
10.2 Indemnification of VIPdesk. Client agrees to indemnify, defend and hold
harmless VIPdesk from and against any and all losses, liabilities, costs
(including reasonable attorneys' fees) or damages resulting from any claim by
any third party to the extent arising out of or relating to: (i) any dispute
between the Client and any Customer (other than any such dispute arising as a
result of gross negligent or willful acts by VIPdesk and/or its Call Taking
Professionals); (ii) third party claims relating to the use, operation, access
to or inability to reach Client's Website, including without limitation, any and
all claims, actions, suits, or proceedings alleging fraud, breach of security,
noncompliance with laws, breach of contract or gross negligence (other than any
such dispute arising as a result of negligent or willful acts by VIPdesk and/or
its Call Taking Professionals); or (iii) any claim by any third party that any
of the Client Marks infringes such third party's intellectual property rights
under applicable laws of any jurisdiction within the United States of America,
provided that, notwithstanding the foregoing, Client will have no obligation to
indemnify VIPdesk if the alleged infringement arises, in whole or in part, due
to modification of the foregoing by VIPdesk. If any claim for which indemnity is
or may be sought is made or appears reasonably possible, VIPdesk agrees (i)
promptly to notify Client in writing; and (ii) to cooperate with Client, and to
allow Client sole authority to control the defense and settlement of such claim.
11. TERM; TERMINATION
11.1 Term. Unless terminated earlier as provided below, this Agreement will
become effective on the Effective Date and will continue in effect for three (3)
years from Implementation Date. Thereafter, the Agreement will automatically be
renewed on a annual basis until either Party gives written notice of intent not
to renew the Agreement at least ninety (90) days prior to the end of the then
current term.
11.2 Termination For Breach, Convenience. Either Party may terminate this
Agreement (i) if the other Party breaches any of its material obligations under
this Agreement and fails to cure such breach within thirty (30) days of written
notice thereof; provided that the cure period applicable to any payment default
will be five (5) days from written notice. In addition, Client may terminate
this Agreement: (a) upon ninety (90) days written notice for any reason at any
time following the first year anniversary of this Agreement; and (b) at any time
upon forty-five (45) days written notice in the event that VIPdesk consistently
fails to perform the Services in accordance with the Service Levels.
11.3 Survival. Sections 3.4, 7, 8, 9, 10, 11.3 and 12 will survive any
termination or expiration of this Agreement.
12. GENERAL
12.1 Assignment or Transfer. Neither Party may assign, transfer, or sublicense
its rights or delegate its duties under this Agreement without the prior written
consent of the other, except in connection with a merger or sale of all or
substantially all of its assets. Any attempted assignment or delegation will be
null, void and of no effect.
12.2 Independent Contractors. For all purposes of this Agreement, each Party
will be and act as an independent contractor and not as partner, joint venture,
or agent of the other and will have no authority to bind nor will it attempt to
bind the other to any contract or commitment of any type.
12.3 Promotion. Subject to the confidentiality obligations contained herein,
both Parties agree to allow each other to mention the other Party in connection
with speaking engagements, websites, client proposals and other communications
sent by the Party to existing and potential customers and others indicating the
relationship of the two Parties. Subject to the confidentiality obligations
contained herein, Client agrees to participate in VIPdesk public relations
efforts, case studies and interviews, as requested, provided that such
participation does not unreasonably interfere with Client's business operations,
and VIPdesk shall cover any costs associated therewith.
Prior review and consent must be obtained from the other Party for any press
releases pertaining to this Agreement or the Parties' relationship with each
other. The consent will not be unreasonably withheld or delayed. No press
release will be issued prior to the launch date of the Services.
12.4 Force Majeure. Each Party will be excused from delay or failure in
performance, other than payment of any amounts due pursuant to this Agreement,
caused by anything beyond such Party's reasonable control, including, without
limitation, acts of God, government action, network failures, delays due to the
required use of the other Party's software, or inability to obtain
telecommunication services.
12.5 No Waiver. The failure of either Party to enforce its rights under this
Agreement at any time for any period will not be construed as a waiver of such
rights. No waiver of any provision of this Agreement will be effective unless in
writing signed by the waiving Party. The waiver of a breach of any provision of
this Agreement will not operate or be interpreted as a waiver of any other or
subsequent breach.
12.6 Entire Agreement. This Agreement, inclusive of all Schedules will
constitute the entire Agreement between Client and VIPdesk with respect to its
subject matter and supersedes all proposals, oral or written, all negotiations,
conversations, or discussions between or among Parties relating to the subject
matter of this Agreement. No changes, modifications or waivers may be made to
this Agreement unless evidenced in writing and signed for and on behalf of both
Parties.
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12.7 No Third Party Beneficiaries. The Parties acknowledge that the covenants
set forth in this Agreement are intended solely for the benefit of the Parties,
their successors and permitted assigns. Nothing in this Agreement, whether
express or implied, will confer upon any person or entity, other than the
Parties, their successors and permitted assigns, any legal or equitable right
whatsoever to enforce any provision of this Agreement.
12.8 Severability. If any provision of this Agreement is invalid or
unenforceable for any reason in any jurisdiction, such provision will be
construed to have been adjusted to the minimum extent necessary to cure such
invalidity or unenforceability. The invalidity or unenforceability of one or
more of the provisions contained in this Agreement will not have the effect of
rendering any such provision invalid or unenforceable in any other case,
circumstance or jurisdiction, or of rendering any other provisions of this
Agreement invalid or unenforceable whatsoever.
12.9 Governing Law. This Agreement will be governed by and interpreted in
accordance with the internal laws of the State of Delaware, without regard to
conflicts of law principles thereof or to the United Nations Convention on the
International Sale of Goods. For purposes of all claims brought under this
agreement, each of the parties hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts of the State of Delaware located in
the County of New Castle.
12.10 Headings. Headings in this Agreement are for convenience of reference only
and will in no way affect interpretation of the Agreement.
12.11 Notices. All notices under this Agreement will be in writing, and will be
deemed given when personally delivered, when sent by confirmed fax, prepaid
certified or registered U.S. mail, return receipt requested, or a recognized
delivery service to the address of the Party to be noticed as set forth above,
or to such other address as such Party last provided to the other by written
notice.
12.12 Audit Rights. VIPdesk shall maintain complete and accurate records of all
amounts billable to and payments made by Client, as well as compliance with
Service Levels, under this Agreement in accordance with generally accepted
accounting practices, and shall retain such records for a period of three years
from the date of final payment for Services covered by this Agreement. Client
shall have the right to audit such records on written notice at times calculated
so as to not unreasonably interfere with VIPdesk's business operations. To the
extent any such audit uncovers an overpayment by Client, the amount of such
overpayment shall be promptly repaid to Client. Client shall be responsible for
the costs of any such audit, unless such audit uncovers an overpayment of more
than 10% in any quarter, in which case VIPdesk shall be responsible for such
costs.
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IN WITNESS WHEREOF, the Parties have caused their duly authorized
representatives to execute this document as of the Effective Date.
VIPDESK CONNECT, INC.: CLIENT:
Signature: /s/ Xxxxxxx Xxxxxx Signature: /s/ Xxxxxxx X. Xxxxx
------------------ --------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: CFO Title: COO/CFO
Date: 5/8/07 Date: 5/8/07
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