1
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
EXHIBIT 10.14
IPASS, INC.
SOLUTION PARTNER RESELLER AGREEMENT
THIS SOLUTION PARTNER RESELLER AGREEMENT ("Agreement") is made as of the
date on the signature page of this agreement ("Effective Date"), by and between
IPASS, INC. ("iPass") and the SOLUTION PARTNER (the "SP"), both as defined on
the signature page of this Agreement.
1. DEFINITIONS.
1.1 "ACCESS UNIT PACKAGES" means packages of access units which may be
purchased by Customers to prepay use of the Services by individual registered
users within Customer's organization.
1.2 "CUSTOMER" means the purchaser of access to the Services.
1.3 "CUSTOMER SERVICE START-UP PLAN" means the Software (or a license to
download the Software from SP's website), Access Unit Packages, documentation
and the other materials described in EXHIBIT A, that enable Customers to use the
Services.
1.4 "SP LAUNCH KIT" means the Software, operations manual, documentation,
marketing collateral and other materials described in EXHIBIT B, (including
future new releases or upgrades that iPass makes generally available to its
customers during the term of this Agreement), that is intended to provide the SP
with the tools to market, install, activate and support the Software and
Services directly to and for Customers. The SP Launch Kit may contain materials
proprietary to and owned by third parties ("iPass Suppliers"): these materials
shall be subject to the terms and conditions of this Agreement and any iPass
Supplier Addendum.
1.5 "SERVICES" means the iPass Internet connection services as offered to
Customers from time to time in accordance with iPass' then-current policies.
1.6 "SERVICE LEVEL" means the level of Service selected by a Customer. The
Service Levels available as of the Effective Date of this Agreement are
described in EXHIBIT I ("Service Levels").
1.7 "SERVICE UPGRADE" means a Customer selection to move from one of the
Service Levels to another Service Level.
1.8 "SOFTWARE" means the iPass RoamServer and Dial Wizard software, in
object code form, and associated documentation, described in EXHIBIT D.
1.9 "TERRITORY" means the geographical areas specified in EXHIBIT C.
2. APPOINTMENT OF SP. iPass hereby appoints SP as a direct, nonexclusive
reseller of the Services to Customers in the Territory and grants SP
certain rights to the components of
1.
2
the SP Launch Kit as specified below. SP will not undertake any obligation
inconsistent or incompatible with its obligations hereunder.
3. INTERNAL USE AND DISTRIBUTION RIGHTS AND RESTRICTIONS.
3.1 INSTALLATION OF SOFTWARE FOR INTERNAL USE. Subject to the terms and
conditions of this Agreement, iPass grants SP the nonexclusive, nontransferable
right to install and use the Software on servers at SP's location ("Site")
solely for support, training demonstration and marketing purposes. SP may make a
reasonable number of backup and archival copies of the Software.
3.2 DISTRIBUTION OF CUSTOMER SERVICE START-UP PLANS AND ACCESS UNITS
PACKS. Subject to the terms and conditions of this Agreement, iPass grants SP
the right to distribute copies of the Customer Service Start-up Plan directly to
Customers located in the Territory which have entered into a written agreement
with SP which contains the minimum terms and conditions set forth in EXHIBIT E
("Customer Agreement") by enabling such Customers to download such copies and to
order Access Unit Packages from SP's website. SP will use diligent care to avoid
accepting orders from or making delivery to Customers outside of the Territory.
3.3 DOMESTIC AND INTERNATIONAL VERSIONS OF SOFTWARE. iPass has designated
one version of the RoamServer component of the Software as suitable for domestic
use inside the United States only (the "U.S. Version"), and one version of the
RoamServer component of the Software as suitable for international distribution
only (the "International Version"). SP shall ensure that the U.S. Version is
distributed to all Customers located in the United States and the International
Version is distributed to all Customers located outside the United States. SP
will indemnify and hold iPass harmless against any liability arising from SP's
failure to comply with this requirement.
3.4 LICENSE ONLY. This Agreement grants SP a license only, and only the
license rights specifically granted in this Agreement. No other right, title or
interest in the Software, SP Launch Kit components or Customer Service Start-up
Plan components is conveyed to SP. Title and ownership of all proprietary rights
in the Software, including any copyright, patent, trade secret, trademark or
other intellectual property right, will at all times remain the property of
iPass and the iPass Suppliers.
3.5 GENERAL RESTRICTIONS. SP shall not adapt, modify, translate or create
derivative works of the Software, SP Launch Kit components and Customer Service
Start-up Plan components, or assign, pledge, lease, loan or timeshare the
Software or reverse compile, disassemble or otherwise attempt or allow attempts
to reconstruct the source code for the Soft--are. SP will not obfuscate, alter
or remove any copyright, trademark or other proprietary notice or legend on or
in the Software and associated documentation and will include all such markings
in all copies of such materials. SP may not use or permit use of the Software
for any purpose not authorized in the associated documentation or in any manner
designed to access the functionality of any portion of the Software other than
as enabled in the form delivered to SP by iPass.
2.
3
4. SP RESPONSIBILITIES.
4.1 STOCKING ORDER. Waived.
4.2 CUSTOMER INFORMATION. SP shall complete the iPass web site order form
for each new customer Service Start-up Plan order, in each case including
appropriate customer contact information (such as designated contact, mailing
address, telephone and fax number and e-mail address). Such information shall be
SP's Confidential Information; however, iPass may, upon notifying SP of its
intentions, use such information to market and promote the procurement of
Services, provided iPass will not publicly disclose the names of any customers
without written permission of the customer. SP will exercise best efforts to
obtain the right to disclose customers as reference accounts.
4.3 ENFORCEMENT OF SUBLICENSE AGREEMENTS. SP shall use commercially
reasonable efforts to enforce each Customer Agreement with at least the same
degree of diligence used in enforcing similar agreements covering Customers of
SP's own products. SP shall promptly notify iPass of any material breach under a
Customer Agreement and will cooperate with iPass and/or iPass Suppliers in any
legal action to prevent or stop unauthorized use, reproduction or distribution
of the Software.
4.4 MARKETING. SP shall use reasonable efforts to market the Services and
to cooperate with iPass' marketing and public relations programs, which may
include activities such as joint press releases, demonstrations, marketing
collateral, sales tools, cooperative presentations to large accounts,
advertisements in trade press, participation in trade shows and seminars, and
the like. In marketing the Services, SP will at all times intend to maintain and
enforce the minimum terms and conditions as set forth in Exhibit E ("Customer
Agreement").
4.5 CUSTOMER SUPPORT. SP shall be responsible for providing "first level"
technical support to SP's Customers. iPass will provide "second level" technical
support to SP as further described below, but will not provide support directly
to SP's Customers. iPass will refer any direct request for support request from
SP's Customers to SP.
4.6 TRAINING. SP will sign up for initial training upon the Effective Date
of this Agreement. SP will send, at a minimum, one (1) employee to iPass'
technical training program within ninety (90) days of the Effective Date, or if
no training class is available during such ninety (90) day period, as soon as
such class becomes available. At all times during the term of this Agreement
following the initial ninety (90) day period, SP shall maintain employment of at
least one (1) employee who has received such training and who has attended any
refresher courses mandated by iPass. Training shall be charged to SP as
specified in EXHIBIT F.
4.7 UPDATES. iPass shall make updates of the Software available to SP,
free of charge, through iPass' website, iPass shall notify SP by electronic mail
upon each update posting. SP shall be required to use diligent efforts to ensure
distribution to its Customers of any Software updates within forty-five (45)
days of notification by iPass, iPass reserves the right to notify customers
directly of any applicable update after forty-five (45) days notice to SP.
4.8 UPGRADES. iPass shall make upgrades of the Software available to SP
through iPass' website, iPass shall notify SP by electronic mall upon each
upgrade posting. SP shall
3.
4
notify its Customers of any Software upgrades within forty-five (45) days of
notification by iPass, iPass reserves the right to notify customers directly of
any applicable upgrade after the forty-five (45) days notice to SP. The price
for upgrades will be determined by iPass in its sole discretion.
4.9 ORDERING AND USAGE MONITORING. SP will be responsible for ordering all
Customer Service Start-up Plans and Access Unit Packages for distribution to
Customers. SP is solely responsible for setting the prices for Customer Service
Start-up Plans and Access Unit Packages which it supplies to Customers. SP is
responsible for monitoring all of its Customers' usage of Services, and for
notifying Customers when a Customer's Access Units Package has been drawn down
below fifty percent (50%) of the original number of access units and
accomplishing the re-ordering of additional Access Unit Packages by such
Customer in a timely manner that will prevent any interruption of the Customer's
access to Services. Upon notifying SP of its intention, iPass reserves the right
to contact a Customer directly if the Customer's Access Units Package is drawn
down to twenty-five percent (25%) or less of the original number of access
units.
5. IPASS RESPONSIBILITIES.
5.1 SP LAUNCH KIT. iPass will make an SP Launch Kit available to SP as of
the Effective Date, and will provide SP with reasonable amounts of additional
hard copies of marketing collateral and related promotional materials at SP's
request.
5.2 USAGE DATA. To assist SP in managing Customers' reordering of Access
Units Kits, iPass will provide detailed Customer usage records to SP on a
monthly basis, and will also make usage information available on iPass' website
for inspection by SP on a daily basis, iPass will inform SP when a Customer's
Access Units Package reaches the reorder stage as set forth in Section 4.9
("Ordering and Usage Monitoring").
5.3 MARKETING SUPPORT. iPass will provide ongoing marketing and sales
support to SP, including sales tools, as described in EXHIBIT H.
5.4 TECHNICAL SUPPORT. iPass will (a) assist SP in installing the Software
on SP's website at SP's request; (b) provide all error corrections and updates
to the Software, including updates to the Dial Wizard phone book, at no charge
to SP on an as-available basis; and (c) provide telephone and email support to
answer installation, configuration and operation questions during iPass' normal
business hours.
6. PAYMENTS; ORDERING.
6.1 PRICE LIST. The prices to be paid to iPass by SP for Customer Startup
Kits and Access Unit Packages are set forth in EXHIBIT F, which iPass may revise
on thirty (30) days written notice to SP. In the event of an aggregate price
increase of 60% or more in any 6 month period, SP will have the right to
terminate the Agreement. Furthermore, iPass agrees in the event of SP
termination due to such a price increase, iPass will not market to, nor accept
new orders from, any of SP's current iPass Customer base for a period of 3
months.
4.
5
6.2 TIMELY PAYMENT. SP's initial stocking fee be due pursuant to the
invoice delivered on the Effective Date of this Agreement. SP will pay all
additional mounts payable to iPass hereunder within thirty (30) days from the
date of iPass' applicable invoice, which shall be rendered monthly in hard copy
or electronic form (via posting on iPass' website) at iPass' discretion, iPass
may terminate or modify the terms of credit payments, when, in its sole
discretion, iPass reasonably believes that its payments may be at risk. All
rights of SP are expressly made conditional upon timely payment, without right
of set off, for all Customer Starter Packages and Access Unit Packages ordered
by SP. All late payments shall be subject to a late fee at the rate of eighteen
percent (18%) per annum or the highest rate permitted by applicable law,
whichever is less.
6.3 ORDER PROCEDURE. All orders issued by SP shall be deemed subject to
this Agreement and shall specify the applicable Customer. SP understands and
agrees that any additional terms and conditions of the SP's order shall be void
and of no effect. No orders shall be binding until the earlier of iPass' written
confirmation or shipment. All shipments shall be FOB shipping point. All orders
delivered shall be deemed accepted by SP upon delivery.
6.4 ACTIVATING SERVICE. iPass may decline to accept orders to provide
Services to Customers in its sole discretion without any liability to SP.
6.5 TAXES. All fees stated herein exclude, and SP shall pay, any sales,
use, property, license, value added, excise or similar tax, federal, state or
local, related to the parties' performance of its obligations or exercise of its
rights under this Agreement and any related duties, tariffs, imposts and similar
charges, exclusive of taxes based on iPass' net income.
6.6 PRICE INCREASE. In the event of a price increase, iPass shall give
notice of the increase to SP no less than thirty (30) days prior to the
effective date of the increase. Purchase orders that iPass accepts after giving
notice of the increase but prior to the effective date of the increase, will be
invoiced at the lower price, as long as SP submits the purchase orders to iPass
no later than the effective date of increase.
6.7 PRICE DECREASE. In the event of a price decrease, iPass will notify SP
of the price decrease and effective date ("Decrease Date"). No more than thirty
(30) days after the Decrease Date, iPass will credit to SP an amount equal to
the product of (i) the difference between the former price and the new price for
Customer Starter Kits, Access Unit Packages or other Services and (ii) the
number of such products then in SP's inventory or in transit to the SP for which
SP has paid the higher price.
7. NO WARRANTY.
7.1 NO WARRANTY. THE SP LAUNCH KIT, THE CUSTOMER STARTER KIT, ACCESS UNIT
PACKAGES, THE SOFTWARE AND ALL ASSOCIATED DOCUMENTATION ARE PROVIDED "AS IS."
IPASS AND ALL IPASS SUPPLIERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY
KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
IPASS SPECIFICALLY DOES NOT WARRANT THAT THE IPASS
5.
6
SOFTWARE IS ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR PROVIDE SECURE
OPERATIONS.
7.2 NO OTHER WARRANTY OR REPRESENTATION. SP acknowledges that it has not
entered into this Agreement in reliance upon any warranty or representation
except those specifically set forth herein.
8. LIMITATIONS OF LIABILITY.
8.1 DISCLAIMER. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS
OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT (WHETHER FROM BREACH OF CONTRACT OR WARRANTY OR FROM
NEGLIGENCE OR STRICT LIABILITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL APPLY
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
IN NO EVENT SHALL IPASS' SUPPLIERS HAVE ANY LIABILITY WHATSOEVER ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT.
8.2 LIMIT. IN NO EVENT SHALL IPASS' LIABILITY ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE FEES ACTUALLY PAID
BY SP TO IPASS DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS
LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS FOR ALL CLAIMS BEING AGGREGATED TO
SATISFY THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE
LIMIT.
9. TRADEMARKS.
9.1 TRADEMARK LICENSE. iPass hereby grants to SP a royalty-free,
non-exclusive, non-transferable, non-sublicenseable license to use the
trademarks enumerated in EXHIBIT G (the "Marks") in SP's advertising and
promotion of the Services in the Territory. SP acknowledges iPass' ownership and
exclusive rights in the Marks, and SP's use of the Marks shall inure to the
benefit of iPass. SP shall not attempt to register the Marks or adopt, use or
attempt to register any confusingly similar marks, iPass may immediately
terminate this trademark license if SP's use of the Marks does not conform to
iPass' usage policy as may be promulgated from time to time. SP shall state at
the first instance of each use of a ▇▇▇▇ that the ▇▇▇▇ is iPass' trademark and
include the symbols TM and (R) as appropriate. SP shall not use any trademark,
word, symbol, letter or design in a manner that would create a combination ▇▇▇▇.
SP shall provide, at its own expense, samples of usage of the Marks for iPass to
inspect prior to usage, iPass may reject any use of the Marks if iPass believes
in good faith that SP's use of the Marks will damage the recognition value or
reputation for quality associated with the Marks. SP shall either modify
nonconforming uses to conform to iPass' required level of quality within thirty
(30) days of notice or, at iPass' request, immediately cease any further use of
the Marks.
9.2 INFRINGEMENT PROCEEDINGS. SP will use reasonable efforts to inform
iPass of any unauthorized use of the Marks by others if it comes to SP's
attention, iPass has the sole right and discretion to bring legal or
administrative proceedings to enforce iPass' trademark rights.
6.
7
10. CONFIDENTIAL INFORMATION.
10.1 DEFINITION. A party's "Confidential Information" is defined as any
confidential or proprietary information of a party which is disclosed to the
other party in a writing marked confidential or, if disclosed orally, is
identified as confidential at the time of disclosure and is subsequently reduced
to a writing marked confidential and delivered to the other party within thirty
(30) days of disclosure.
10.2 OBLIGATIONS. Each party shall hold the other party's Confidential
Information in confidence and shall not disclose such Confidential Information
to third parties nor use the other party's Confidential Information for any
purpose other than the purposes of this Agreement. Such restrictions shall not
apply to Confidential Information which (a) is already known by the recipient,
(b) becomes, through no act or fault of the recipient, publicly known, (c) is
received by recipient from a third party without a restriction on disclosure or
use, (d) is independently developed by recipient without reference to the
Confidential Information, or (e) is required to be disclosed by a court or
government agency.
11. INDEMNITY.
11.1 SP INDEMNITY. SP shall defend and indemnify iPass and iPass Suppliers
against any and all claims, losses, liabilities, damages, costs and expenses,
including reasonable attorneys' fees, which iPass or iPass Suppliers may incur
as a result of claims in any form by third parties, including Customers, related
to SP's acts, omissions or misrepresentations (including without limitation any
unauthorized statements made by SP or its agents to Customers), provided iPass
provides prompt written notice of the claim, gives SP control of defense and
settlement of any such claim, and provides reasonable assistance at SP's expense
and request.
11.2 IPASS INDEMNITY. Subject to the limit of liability in Section 8
("Limitation of Liability"), iPass agrees to defend SP against any claim that
the Services or Software provided by iPass infringe any U.S. copyright or any
U.S. trade secret recognized as such under the Uniform Trade Secrets Act or that
the Marks infringe any U.S. trademark or service ▇▇▇▇, provided that iPass is
given prompt written notice of any such claim and the right to control the
defense and settlement of any such claim. SP will cooperate with iPass at iPass'
request and expense in connection with any such claim. Subject to the limitation
of liability in Section 8 ("Limitation of Liability"), iPass will pay all
damages and costs (including reasonable attorneys' fees) finally awarded by a
court of competent jurisdiction. If use of the Services or Software is enjoined
or in iPass' reasonable judgment is threatened to be enjoined, iPass may, at
iPass' option and expense, procure for SP the right to continue distributing the
Services or Software, replace or modify the Services or Software so they are no
longer infringing, or terminate the license for the applicable .component of the
Services or Software and refund any applicable fees to SP. iPass shall have no
liability hereunder for any claims arising from (a) improper or unauthorized use
of the Services or Software; (b) the combination of the Services or Software
with hardware, software or data not provided by iPass where the combination is
the subject of the claim; or (c) resulting from any modification of any
deliverable of iPass by any party other than iPass. THE FOREGOING STATES THE
SOLE AND EXCLUSIVE LIABILITY OF
7.
8
IPASS, AND THE SOLE AND EXCLUSIVE REMEDIES OF SP, FOR ANY CLAIM OF ANY
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.
12. TERM AND TERMINATION.
12.1 TERM. This Agreement shall remain in full force and effect unless and
until terminated in accordance with this Section.
12.2 TERMINATION FOR BREACH. Either party may terminate this Agreement
upon the material breach of the other party of the terms of this Agreement, if
such default continues for thirty (30) days after written notice.
12.3 TERMINATION FOR CONVENIENCE. At any time six (6) months after the
Effective Date, either party shall be entitled to terminate this Agreement for
its convenience, for any reason or for no reason, upon six months prior written
notice.
12.4 EFFECTS OF TERMINATION. Upon termination, SP shall immediately cease
representing itself as a SP of the Software and Services, all licenses granted
hereunder shall immediately terminate, each party shall return ail copies of the
other party's Confidential Information, and SP's obligations to make any
payments pursuant to Section 6 ("Payments; Ordering") shall survive . The
obligations of each party under Sections 7 ("No Warranty"), 8 ("Limitation of
Liability"), 10 ("Confidential Information"), 11.1 ("SP Indemnity"), 12 ("Term
and Termination") and 13 ("General") shall survive termination or expiration of
this Agreement.
12.4.1 SP shall return at SP's cost ail products and copies of
promotional materials, marketing literature, written information and reports
pertaining to literature, written information and reports pertaining to the
Services that have been supplied by iPass. Any products returned by SP will be
eligible for full refund of the purchase price or any part there of previously
paid by the SP for such purchases.
12.4.2 Upon termination or expiration, SP shall no longer have the
right to order, reproduce or distribute any Software, Customer Service Start-up
Plans or Access Unit Packages, all open orders shall automatically terminate and
iPass shall have no obligation to fill such orders. In such event, SP shall
immediately cease using, marketing, reproducing and distributing the Software
and shall return all copies thereof to iPass along with a certification signed
by an officer of SP that no copies have been retained by SP for any purpose
whatsoever. However, if the Agreement terminates or expires for any reason other
than iPass' termination for cause, SP shall have the right to distribute
Customer Service Start-up Plans and Access Unit Packages for which SP has
already paid for on the effective date of termination; and SP shall have the
right to continue to use the Software internally upon execution of iPass'
then-current applicable end user agreement to support Customers who have valid
Customer Agreements in effect on the effective date of termination.
12.4.3 Neither party shall incur any liability whatsoever for any
damage, loss or expenses of any kind suffered or incurred by the other arising
from or incident to any termination of this Agreement that complies with the
terms of the Agreement. Without limiting the foregoing, neither party shall be
entitled to any damages on account of prospective profits or anticipated sales.
SP and iPass agree to waive, to the extent permitted by applicable law, the
8.
9
benefit of any law or regulation providing compensation to either party arising
from the termination or failure to renew this Agreement.
13. GENERAL PROVISIONS.
13.1 EXPENSES. Except as provided in this Agreement, both parties shall be
solely responsible for their respective expenses in performing under this
Agreement, which include without limitation personnel compensation, bonuses and
benefits; costs and expenses of running its sales organization and offices; and
advertising and promotion expenses.
13.2 REVERSE ENGINEERING. SP agrees to notify iPass promptly of any
circumstance of which SP has knowledge relating to any unauthorized use,
copying, de-compilation or modification of the Software and to give reasonable
cooperation's (at iPass' expense) to iPass' efforts to eliminate such conduct.
13.3 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of California, USA, without reference to conflict of laws
principles. Both parties consent to jurisdiction in California and further agree
that any cause of action arising out of or relating to this Agreement may be
brought in a court in Santa ▇▇▇▇▇ County, California. This Agreement expressly
excludes the application of the United Nations Convention on Contracts for the
International Sale of Goods.
13.4 SEVERABILITY; WAIVER. If any provision of this Agreement is held to
be invalid or unenforceable for any reason, the remaining provisions will
continue in full force without being impaired or invalidated in any way. The
parties agree to replace any invalid provision with a valid provision that most
closely approximates the intent and economic effect of the invalid provision.
The waiver by either party of a breach of any provision of this Agreement will
not operate or be interpreted as a waiver of any other or subsequent breach.
13.5 COMPLIANCE WITH LAWS. At its sole expense, SP shall comply with all
applicable laws and regulations regarding its activities related to this
Agreement. If required, SP shall obtain any governmental authorizations, and SP
shall provide proof of such compliance upon request.
13.6 HEADINGS. Headings are for reference purposes only and in no way
define, limit, construe or describe the scope or extent of such section or in
any way affect this Agreement.
13.7 SUCCESSORS AND ASSIGNS. SP may not assign its rights or delegate its
duties under this Agreement without iPass' written consent, iPass' written
consent is not to be unreasonably withheld. Any attempted assignment in
violation of the foregoing shall be void and of no effect.
13.8 FORCE MAJEURE. If performance of this Agreement, or any obligation
hereunder (other than the obligation to pay), is prevented, restricted or
interfered with by any act or condition whatsoever beyond the reasonable control
of the affected party (including without limitation the failure of any suppliers
to perform), the party so affected, upon giving prompt notice to the other
party, will be excused from such performance to the extent of such prevention,
restriction or interference.
9.
10
13.9 INDEPENDENT CONTRACTORS. The parties to this Agreement are
independent contractors, and no agency, partnership, joint venture,
employee-employer or franchiser, franchisee relationship is intended or created
by this Agreement. Neither party may take any actions that are binding on the
other party.
13.10 NOTICE. Any notices required or permitted hereunder shall be given
at the address specified in the first paragraph or at such other address as a
party shall specify in writing. Notice shall be deemed given: upon personal
delivery or by domestic or international courier service; if sent by confirmed
facsimile, upon confirmation of receipt; or, if sent by certified or registered
air mail, postage prepaid, upon confirmation of receipt.
13.11 ENTIRE AGREEMENT. This Agreement, including the exhibits hereto, is
the entire understanding and agreement of the parties, and supersedes any and
all oral or written agreements or understandings between the parties, as to the
subject matter of this Agreement. SP acknowledges that it has not entered into
this Agreement in reliance upon any warranty or representation except those
specifically set forth herein. In the event of any conflict between this
Agreement and an Exhibit, the terms of the Exhibit shall control. Except as
expressly set forth herein, this Agreement may be changed only by a writing
signed by both parties.
13.12 PUBLICITY. Neither party shall publicize the existence of this
Agreement without the consent of the other. In the event of such agreement, all
press release materials shall be jointly reviewed and approved before
distribution.
13.13 GOVERNMENT END USERS. Any distribution to or use of the Software by
the U.S. Government is conditioned upon the Government agreeing that the
Software is comprised of "commercial computer software" and "commercial computer
software documentation" as such terms are used in 48 CFR 12.212 (SEPT 1995) and
is provided to the Government (a) for acquisition by or on behalf of civilian
agencies, consistent with the policy set forth in 48 CFR 12.212; or (b) for
acquisition by or on behalf of units of the Department of Defense, consistent
with the policies set forth in 48 CFR 227.7202-1 (JUN 1995) and 227.7202-3 (JUN
1995). SP shall also be responsible for ensuring that the Software and related
documentation is correctly marked as required by the applicable Government
regulations governing such materials when delivered to the Government.
13.14 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
be taken together and deemed to be one instrument.
10.
11
IN WITNESS WHEREOF, the parties have executed this SOLUTION PARTNER
RESELLER AGREEMENT as of the date first written above.
IPASS SP: Fiberlink
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------ -----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------- ---------------------------------
Title: President & CEO Title: President/CEO
--------------------------------- --------------------------------
Date: September 4, 1998 Date: 8/28/98
---------------------------------- ---------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ #240
USA Blue ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Contracts Department Attn: Finance
Phone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ Email:
--------------------------------
11.
12
EXHIBIT A
CUSTOMER SERVICE START-UP PLAN
1. RoamServer Software
2. Dial Wizard Software
3. Dial Wizard user documentation
4. Access units, in Access Unit Packages of varying sizes depending on order
1.
13
EXHIBIT B
SP LAUNCH KIT
1. RoamServer Software
2. Dial Wizard Software
3. Dial Wizard customization kit
4. Partner Handbook
5. Installation documentation
1.
14
EXHIBIT C
TERRITORY
1.
15
EXHIBIT D
SOFTWARE
1. RoamServer Software, for the following platforms:
RoamServer Software for Linux
ipass3.0-QSK-Linux2.0.18.tar.Z
RoamServer Software for Digital UNIX/Alpha 4.0
ipass3.0-QSK-OSF1V4.0-alpha.tar.Z
RoamServer Software for BSDI
ipass3.0-QSK-bsdi.tar.Z
RoamServer Softyware for FreeBSD
ipass3.0-QSK-freebsd.tar.Z
RoamServer Software for SUN
ipass3.0-QSK-sun.tar.Z
RoamServer Software for Windows NT 4.0
ipassNT-int.zip
2. Dial Wizard Software, version 1.0.
1.
16
EXHIBIT E
CUSTOMER AGREEMENT MINIMUM TERMS AND CONDITIONS
1. iPass and its suppliers exercise no control whatsoever over the content of
the information passing through their systems. By its very nature, the
Internet contains offensive or harmful material, in some cases under
descriptions that have been mislabeled or are otherwise deceptive. We
expect that you will use caution and common sense in using the Internet.
2. iPASS AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY
KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT. Use of any information obtained via the service is at
your own risk. iPass and its suppliers specifically deny any
responsibility for the accuracy or quality of information obtained through
their services, iPass and its suppliers also do not guarantee continuous,
uninterrupted or secure access to the Internet or to your home account.
Some jurisdictions do not allow the disclaimer of implied warranties, so
the foregoing disclaimer may not apply to you. This warranty gives you
specific legal rights and you may also have other legal rights that vary
from jurisdiction to jurisdiction.
3. IN NO EVENT SHALL IPASS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR INTERRUPTED COMMUNICATIONS,
LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE
SERVICE. Some states do not allow the limitation of liability, so the
foregoing limitation may not apply to you.
4. You shall not use the services to take any actions or make any
statements that: (a) infringe on any third party's copyright, patent,
trademark, trade secret or other proprietary rights or rights of
publicity or privacy; (b) violate any applicable law, statute,
ordinance or regulation (including without limitation those regarding
export control); (c) are defamatory, trade libelous or unlawfully
threatening; (d) are pornographic or obscene; (e) violate any laws
regarding unfair competition, antidiscrimination or false advertising,
or (f) result in the distribution of viruses, trojan horses, worms,
time bombs, cancelbots or other similar harmful or deleterious
programming routines. You may not use the services to distribute any
bulk unsolicited e-mails or otherwise cause an excessive or
disproportionate load on iPass suppliers' infrastructure.
5. You may not transfer or share your account with anyone. You may not
disclose your password to any third parties.
6. Given the current regulatory and technical environment you should not have
an expectation of privacy in your online activities.
1.
17
EXHIBIT F
PRICE LIST FOR SOFTWARE, SERVICES AND TRAINING
SERVICE START-UP PLANS
iPass Service Start-up Plans are the introductory service activation packages to
introduce corporations to iPass Corporate Access. Features include:
- Three service levels based on number of unique remote access users
- Introductory access units based on the service level
- RoamServer software, at no charge, for the corporate site
- iPass Dial Wizard or Microsoft Connection Manager the client software
featuring an international phone book of access points, at no charge
- Ongoing phone book updates to provide users with the current listing of
access points Administration and user documentation for the server and
client software
- Monthly detailed billing listing access locations, users and connect
time
- Technical support provided by reseller
NUMBER OF UNITS MASTER
DESCRIPTION UNIQUE IDS INCLUDED PRICE S RP
----------- ------------------ -------- ------ ------
Basic Connect [*] users [*] $[*] $[*]
Standard Connect [*] users [*] $[*] $[*]
Premium Connect [*] unlimited [*] $[*] $[*]
USAGE PRICING
Usage pricing is based on:
- Five rate groups based on access point location
- Rate groups converted to access units for universal measurement
- Sold in bulk access packs
- Monthly detailed billing listing access points, users and connect time
MASTER MASTER
RATE GROUPS PRICE/UNIT PRICE/HOUR SRPF/UNIT SRP/HOUR
----------- ---------- ---------- --------- ---------
A=[*] Units $[*] $[*] $[*] $[*]
B=[*] Units $[*] $[*] $[*] $[*]
C=[*] Units $[*] $[*] $[*] $[*]
D=[*] Units $[*] $[*] $[*] $[*]
E=[*] Units $[*] $[*] $[*] $[*]
ACCESS UNIT PACKAGES
AccessPacks are bulk access unit packages created as a billing option for
customers wishing to pay in advance for Corporate Access to eliminate monthly
billing and receive volume discounts. Detailed monthly usage reports will be
provided for monitoring and controlling the account, so customers can still
manage the expense and usage by departments or individuals.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
1.
18
NUMBER MASTER SRP
DESCRIPTION OF UNITS PRICE PER UNIT SRP
----------- -------- ------- -------- -------
AccessPack 5 [*] [*] [*] [*]
AccessPack 10 [*] [*] [*] [*]
AccessPack 25 [*] [*] [*] [*]
AccessPack 50 [*] [*] [*] [*]
AccessPack 100 [*] [*] [*] [*]
UPGRADE PLANS
After the initial purchase of the Service Start-up Plan, corporations may add
additional users through the purchase of an Upgrade Plan. Features include:
- Additional access units based on the service level
- Monthly detailed billing listing access locations, users and connect
time
- Technical support provided by reseller
NUMBER OF UNITS MASTER
DESCRIPTION UNIQUE IDS INCLUDED PRICE SRP
----------- ---------- -------- ------ ------
Basic to Standard [*] [*] [*] [*]
Standard to Premium [*] [*] [*] [*]
Basic to Premium [*] [*] [*] [*]
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
2.
19
EXHIBIT G
IPASS TRADEMARKS
The following are iPass trademarks, iPass may revise this list from time to
time. Usage guidelines for the marks are available on the iPass "Partners Only"
web site: a user name and password is required for access.
iPass(TM)
iPass Alliance(TM)
iPass Alliance(TM) logo
1.
20
EXHIBIT H
IPASS SALES AND MARKETING TOOLS AND SUPPORT
Please refer to the iPass "Partners Only" web site for channel partners. You
will need to know your unique partner code as well as your password to access
this site.
1.
21
EXHIBIT I
SERVICE LEVELS
PART NUMBER DESCRIPTION NO. OF UNIQUE IDS UNITS INCL
----------- ----------- ----------------- ----------
0001 Basic Connect [*] [*]
0002 Standard Connect [*] [*]
0003 Premium Connect [*] [*]
UPGRADE PRICING
PART NUMBER DESCRIPTION NO. OF UNIQUE IDS UNITS INCL
----------- ----------- ----------------- ----------
0101 Basic to Standard [*] [*]
0102 Standard to Premium [*] [*]
0103 Basic to Premium [*] [*]
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
1.
