Exhibit 10.15
SERVICES AGREEMENT
THIS SERVICES AGREEMENT ("Agreement") is made as of September 6, 2006 (the
"Effective Date") by and between 3M COMPANY ("3M") and DataCall Technologies
("Seller"). 3M and Seller are collectively "Parties" and individually a
"Party."
1. SCOPE
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1.1 3M may ask Seller to supply those: (a) services described in Exhibit A
(the "Services"); and (b) items that Seller is to create specifically for 3M in
connection with the Services, including, but not limited to, information,
databases, designs, prototypes, artwork, or other materials that are described
in Exhibit A ( "Deliverables"). Anything created by Seller that is not a
Deliverable ("Seller Materials") is and will remain Seller's property. In
exchange for the Services and Deliverables, Seller will be paid the prices
described in Exhibit A (the "Prices"). This Agreement is made in consideration
of the Parties' mutual obligations and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, which includes,
without limitation, 3M's issuance of Orders (as defined below).
1.2 3M may purchase Services by issuing a specific purchase order, or a
release from a blanket purchase order, an activating letter, or by payment using
any 3M voucher system (collectively an "Order"). Seller will provide everything
necessary to supply the Services and Deliverables. Seller is solely responsible
for all Seller employees, agents, and subcontractors ("Seller Personnel") safely
performing Seller's obligations under this Agreement, whether at its facility,
at a 3M facility (a "3M Site"), or at any other location. The 3M Contact for
the Services will be: ▇▇▇▇▇▇ ▇▇▇▇▇▇, 3M Digital Signage, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("3M Contact").
2. TERM
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This Agreement begins on the Effective Date and expires two (2) years later,
unless earlier renewed or terminated pursuant to this Section 2 (the "Term").
Neither a termination notice nor a termination will waive any of the terminating
Party's rights or remedies. Either Party, on notice to the other Party, may
terminate this Agreement because: (a) the other Party fails to cure, to the
notifying Party's reasonable satisfaction, any breach of its obligations under
this Agreement within thirty days after notice of that breach; (b) the other
Party is unable to meet its financial obligations, makes a general assignment
for its creditors' benefit, or fails to maintain a Dun & Bradstreet financial
stress percentile score acceptable to 3M; or (c) an Unavoidable Delay (as
defined in the Unavoidable Delay Section) has prevented or substantially
impaired the other Party's compliance with any of its obligations under this
Agreement for at least thirty days. At this Agreement's end (regardless of
cause): (x) no Party will be relieved of any existing obligations; and (y)
Seller will deliver to 3M all 3M Materials and any Deliverables in process. 3M
may also terminate this Agreement without cause by giving Seller not less than
30 days' prior notice.
3. PURCHASES
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Any 3M order that calls for multiple requests for Services, not all of which
have firm completion dates, is a blanket purchase order, which is only for
planning purposes and is not a 3M purchase commitment. Seller is deemed to have
accepted an Order if Seller does not notify 3M in writing within three business
days that Seller cannot meet all that Order's terms. 3M may, at its option and
on notice to Seller, convert any of its ordering, purchasing and/or payment
methods to be electronically enabled and Seller will, at its expense: (a)
provide any necessary electronic data interface for the technology's
implementation; and (b) use the applicable electronic method. TIME IS OF THE
ESSENCE FOR ALL SERVICES AND DELIVERABLES.
4. PRICES, PAYMENT & DELIVERY
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4.1 The Prices include all costs payable by 3M. Any Seller out-of-pocket
expenses to be reimbursed by 3M will be billed at Seller's actual cost with no
▇▇▇▇-up. Seller will submit, and be reimbursed for, only those travel expenses
that are in accordance with 3M's then-current travel reimbursement guidelines
for its vendors, available at ▇▇▇.▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇. If Seller provides to any
other customer (except a Seller affiliate) a service or deliverable
substantially equivalent to a Service and/or Deliverable for a lower price,
Seller will, within five business days thereafter, notify 3M and 3M will pay the
lower price on the applicable Service and/or Deliverable provided to 3M while
that lower price is in effect. If 3M is offered a service or deliverable that
is substantially equivalent to a Service and/or Deliverable for a lower price
("Substitute"), and Seller does not meet that lower price within five business
days, then 3M may buy the Substitute and apply that purchase against any
Order(s).
4.2 Payment terms are Net 60 days, to be paid in U.S. dollars. Seller's
invoices will be issued and dated no earlier than the date on which Seller
provides the applicable Service and/or Deliverable and must reference this
Agreement's contract number and any applicable Order. 3M's payments may be
adjusted for Seller's errors, defects or non-compliance with this Agreement. If
any Seller invoice or other documentation differs from this Agreement, this
Agreement will govern. Seller will provide supporting documents for any invoice
on request. All Deliverables provided within a single country will be
delivered to 3M's designated carrier FCA (Incoterms 2000) Seller's site
identified in Section 10. All Deliverables provided internationally will be
delivered to 3M's designated carrier FCA (Incoterms 2000) port of export.
5. 3M MATERIALS & DELIVERABLES
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5.1 All equipment, information, ideas, software, databases, or documents 3M
makes available to Seller to assist in providing Services ("3M Materials") are
and will remain owned or licensed by 3M. Seller authorizes 3M to file any and
all appropriate documentation (including UCC financing statements) without
Seller's signature to acknowledge 3M's rights to 3M Materials. Seller will use
3M Materials solely for performing its obligations under this Agreement and for
no other purpose. Seller uses 3M Materials solely at Seller's own risk and has
liability for all 3M Materials in Seller's custody or control. Seller
acknowledges that: (a) 3M makes absolutely no representations or other
statements about the character, condition, quality or characteristics of 3M
Materials; (b) before using 3M Materials, Seller has sole responsibility to
determine that the 3M Materials are in safe and proper condition for their
intended purpose; and (c) 3M is not a "merchant" of 3M Materials as defined in
the Uniform Commercial Code and EXPRESSLY DISCLAIMS ANY WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Section 5 applies even if
Seller has paid or offered 3M consideration for use of the 3M Materials.
5.2 3M or its designated affiliate is granted a non-exclusive,
non-transferable license to use the Deliverables provided by Seller. Seller
hereby warrants that all Deliverables will be provided without lien by any other
party and Seller has not made and will not make any commitment to any third
party that would be inconsistent with this assignment. If any of these rights
cannot be assigned, Seller warrants that Seller and other parties claiming
rights through Seller will not enforce any of those rights against 3M, any 3M
affiliate, or any other party obtaining the Deliverables through 3M. Seller
will execute any additional documents reasonably requested by 3M to assert and
preserve the rights granted in this Section 5. Although Seller owns the Seller
Materials, Seller grants 3M the perpetual and unrestricted right to use, copy,
and distribute Seller Materials. Seller will remove Deliverables from any
Seller Materials provided to any party other than 3M and Seller will not
disclose or use any Deliverable for any purpose without 3M's prior written
consent in each instance. During or after the Term, Seller will not use 3M's
name, trademark, tradename or corporate logo in any manner, including
promotional or advertising materials, or otherwise assert affiliation with 3M or
its affiliate, except with 3M's prior written consent in each instance.
6. SAFETY & REGULATORY COMPLIANCE
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6.1 Seller covenants and warrants that it will perform all of its
obligations under this Agreement using sound environmental, health, labor, and
safety practices and in compliance with all applicable local, state, national,
and international statutes, rulings, regulations, ordinances and governmental
directives ("Laws"). Seller warrants that it will not offer or pay money or
anything of value to a government official or political candidate for the
purpose of obtaining, retaining or directing business to any person or entity,
as prohibited by the applicable Laws, which may include, without limitation, the
U.S. Foreign Corrupt Practices Act.
6.2 Seller warrants that all Seller Personnel performing any of Seller's
obligations under this Agreement will have employment authorization that
complies with all applicable Laws. On 3M's request, Seller will provide 3M with
all documentation and information 3M requires to conduct an export control
license assessment relating to Seller Personnel. If 3M determines that an
export license is needed for certain Seller Personnel, 3M may, in its
discretion, pursue that export license or instruct Seller not to use those
Seller Personnel to perform the Services
6.3 For any Services performed at a 3M Site: (a) Seller will comply with 3M's
safety rules and will make certain that all Seller Personnel and Seller's agents
and invitees obey those rules; (b) if Seller observes a safety problem beyond
its control, Seller will immediately notify the 3M Contact; (c) Seller will
report immediately in writing to the 3M Contact any accident, injury or other
incident involving any Seller Personnel; and (d) Seller will designate one its
employees to be its authorized representative at that 3M Site before any
Services are performed and that Seller's representative must be at the 3M Site
at all times when Services are being performed at the 3M Site. If Seller or any
Seller Personnel files any type of report with a public authority that relates
to Services, Seller will immediately furnish to the 3M Contact a copy of that
report.
7. WARRANTY
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Seller expressly warrants that: (a) Services and Deliverables will be provided
in accordance with this Agreement; (b) all Deliverables will be free of defects
in design, material, or workmanship; (c) Seller has the experience, expertise,
and resources to perform its obligations under this Agreement; and (d) Seller
does not now have, and will not create during the Term, any obligation that
would conflict with Seller's performance of its obligations under this
Agreement. In addition to any other available remedies, 3M may reject any
Service and/or Deliverable that does not comply with Seller's warranties, and
may, at its option: (i) require Seller replace that Service and/or Deliverable
at Seller's expense or refund the applicable Prices; or (ii) obtain substitute
Services and invoice Seller those service costs and/or adjust any Prices
remaining due to Seller under this Agreement. 3M's acceptance of delivery,
inspection, or payment for any Service or Deliverable does not waive any Seller
warranties. Seller will assist 3M in investigation of, and corrective action
for, Service and Deliverable complaints by 3M customers.
8. INSURANCE & INDEMNIFICATION
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8.1 During the Term, Seller will maintain, at its own expense, on an
occurrence basis: (a) commercial general liability insurance (including
contractual liability) of at least $2,000,000 per occurrence; (b) if available
for the type of service Seller is providing, professional liability insurance
(including errors and omissions coverage) of at least $2,000,000 per occurrence;
(c) worker's compensation insurance that meets statutory requirements or
satisfactory evidence that Seller is authorized to self-insure; and (d)
employer's liability insurance of at least $500,000 per occurrence. On 3M's
request, Seller will provide insurance certificate(s) confirming Seller's
compliance with all insurance requirements. Each insurance policy must provide
that it cannot be cancelled or changed without 30 days' prior written notice to
3M.
8.2 Seller will indemnify, defend, and hold harmless 3M, its affiliates, and
their successors, assigns, officers, directors, employees, and agents from any
claim, liability, loss, damage, lien, judgment and cost, including attorneys'
fees and litigation expenses, with respect to: (a) Seller's failure to comply
with its obligations under this Agreement; and (b) any third party claims
related to Seller's performance of its obligations under this Agreement,
including, without limitation, those by Seller's employee, agent or
subcontractor.
9. CONFIDENTIALITY
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Seller must keep confidential and use only as is necessary to perform Seller's
obligations under this Agreement the following (collectively referred to as "3M
Confidential Information"): (a) this Agreement's existence and its terms; (b) 3M
Materials; and (c) Deliverables. 3M Confidential Information does not include
information that is: (x) available to the public without fault of Seller; (y)
known to Seller prior to its receipt from 3M as evidenced by Seller's written
records; or (z) available to Seller from another source without breach of any
agreement or violation of law. Seller must promptly notify 3M of any judicial
process that might require disclosure of 3M Confidential Information. Seller
does not acquire any rights to 3M Confidential Information due to this
Agreement. Seller will, at 3M's option, either return or destroy all tangible
materials that are 3M Confidential Information on request or at the Term's end.
10. NOTICES
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All notices must be written and sent by any internationally recognized overnight
delivery service to 3M at: ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇-▇▇-▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Professional Services Team Manager; and to Seller at: ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇. Notices are
effective on delivery.
11. DISPUTE RESOLUTION
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Any claim or dispute arising from, or relating to, a Service, Deliverable or
this Agreement will be: (a) governed by the laws of the State of Minnesota,
United States of America, without regard to its conflicts of law provisions; and
(b) resolved only by the sequential methods outlined in this Dispute Resolution
Section, except that a party may, at any time, seek equitable relief from the
designated court(s) to prevent immediate or irreparable harm to it. The 1980
United Nations Convention on Contracts for the International Sales of Goods will
not govern this Agreement. All negotiations will be conducted in English and
all documents, including this Agreement, will be written in English. First, the
Parties will meet at mutually agreed time(s) and location(s) to resolve in good
faith any claim or dispute, after a Party's written negotiation request. If the
matter is not resolved within sixty days after that request, then, on a Party's
written request, they will enter into non-binding mediation to be conducted at
mutually agreed time(s) and location(s), using a neutral mediator having
experience with the applicable industry. Finally, as a last resort, either
Party may commence litigation, but only in a federal or state court of competent
jurisdiction in ▇▇▇▇▇▇ County, Minnesota. Each Party consents to the Minnesota
courts' personal jurisdiction. Each Party will bear its own costs in dispute
resolution, except that if a Party commences litigation, the losing Party in
that litigation will pay all the prevailing Party's attorneys' fees, court
costs, and other expenses related to that litigation. All negotiations are
confidential and will be treated as settlement negotiations. During the
resolution of a dispute, Seller will continue to provide the Services and/or
Deliverables as required by this Agreement.
12. UNAVOIDABLE DELAY
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If a Party is unable to perform its obligations, either in whole or in part,
under this Agreement as a result of civil or military authority, war, flood,
fire, epidemic, or other condition or cause beyond its reasonable control and
not related to its fault or negligence (an "Unavoidable Delay"), the affected
Party will be excused from that performance during the Unavoidable Delay to the
extent that Party is prevented or delayed thereby, but the other Party has the
termination rights stated in Section 2. During a Seller Unavoidable Delay
period, Seller will allocate any available Services and Deliverables as is fair
and reasonable. Unavoidable Delay will not include: (a) labor dispute; (b)
non-performance by Seller's supplier or approved subcontractor, unless the goods
or services were unobtainable from another 3M-approved source in a reasonable
time; or (c) any delay preventable by Seller moving the affected Services to an
alternate 3M-approved site.
13. MISCELLANEOUS
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13.1 The Parties' relationship is that of independent contractors. Nothing
in this Agreement authorizes either Party or its employees to act as the other
Party's agent or representative or will be construed to make a Party's
employees, agents, or contractors the other Party's employees, agents, or
contractors. 3M may provide information to Seller about employment, safety,
environmental, or other matters related to Services, but Seller exercises its
independent judgment on all such matters.
13.2 If a tribunal of competent jurisdiction holds any term of this
Agreement to be invalid, illegal, or unenforceable, this Agreement will be
deemed severable and the remainder of this Agreement will be unaffected in any
way. This Agreement's headings will not be used to interpret this Agreement.
This Agreement was negotiated by the Parties, who had the opportunity to consult
with legal counsel. This Agreement may only be waived, modified or supplemented
by a written document signed by the Parties' authorized representatives. No
failure(s) or delay(s) in exercising any right or remedy will waive that Party's
right to later require strict performance.
13.3 Seller will not assign, transfer, or delegate any of its rights or
obligations under this Agreement including a subcontract (an "Assignment")
without 3M's prior written consent. An "Assignment" will include any transfer
of: (a) at least fifty percent of Seller's assets or the ownership of Seller; or
(b) the part of Seller's business that relates to this Agreement or those Seller
assets employed in Seller's performance under this Agreement. Any Assignment
made without 3M's prior written consent may be, at 3M's election, cause for
termination of this Agreement. No one will be a third party beneficiary of this
Agreement.
13.4 3M WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SELLER FOR SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROFITS) IN ANY WAY RELATED TO THE SERVICES, DELIVERABLES, THIS AGREEMENT OR ITS
TERMINATION, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE DAMAGES
ARE SOUGHT.
13.5 Seller will maintain all accounting, sales, shipping, transportation,
manufacturing, and technical records arising from, or related to, performance of
Seller's obligations under this Agreement for six years from the later of the
record's creation or the date on which the applicable Service or Deliverable was
provided to 3M. 3M may audit Seller's records relating to the Services and
Deliverables.
13.6 This Agreement, which includes all Exhibits, constitutes the Parties'
final and complete agreement and it terminates all the Parties' prior written or
oral agreements and understandings as to this Agreement's subject matter except:
(a) for any additional Seller obligations in a Bidding Participation Agreement;
and (b) this Agreement is not intended to terminate or supersede any existing
confidentiality or intellectual property agreement by the Parties. All this
Agreement's provisions including, without limitation, those relating to safety
and regulatory compliance, warranty, insurance, indemnification, and
confidentiality, will survive the Term's end and be fully enforceable thereafter
to the full extent necessary to protect the Party in whose favor they run.
ACCEPTED AND AGREED TO:
3M COMPANY DATACALL TECHNOLOGIES
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Printed Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Printed Name: ▇▇▇ ▇▇▇▇▇▇
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Title: Sourcing Agent Title: President/ CEO
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Federal Tax ID No.:
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EXHIBIT A
TO SERVICES AGREEMENT
SERVICES, DELIVERABLES AND PRICES
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SERVICES:
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Seller, in association with worldwide information suppliers, provides various
equipment and technology which allow for the delivery of information and
internet based messaging for indoor and outdoor displays of all types via the
Direct ▇▇▇▇ Messenger(TM) System.
3M wishes to deploy the Direct ▇▇▇▇ Messenger(TM) System for use to rebrand as
its AIM product via re-distribution through its network of computers. 3M may
distribute these services to its customers in any manner it chooses including
charging a fee or offering it free of charge.
DELIVERABLES:
Seller will provide 3M with the Direct ▇▇▇▇ Messenger(TM) content in its
entirety.
The service to be provided is access to the Direct ▇▇▇▇ Messenger(TM) System
express messaging and its news and information feeds.
This service will be delivered via an XML feed through the internet.
Current feeds to include, but not limited to:
Sports:
- National Football League
- National Basketball Association
- National Hockey League
- Major League Baseball
- NCAA Football Arena Football
- NCAA Men's Basketball
- Professional Golf Association
- NASCAR
- Latest Sports Lines
- Latest Sports Headlines
- Comprehensive Sports Headlines
- Major League Soccer
News:
- Top News Headlines
- Top Business Headlines
- Top Sports News
- Science/Health News
- Entertainment Headlines
- Quirky News Bits
Weather:
- Current Conditions
- 48-Hour Forecast 7-Day Forecast
- Weather Alerts
- Doppler Weather Radar
General Interest:
- Born on This Date
- This Date in History
- Thought for Today
- Today's Horoscopes
- Today's Trivia
Financial:
- Market Details
- World Financial Highlights
Traffic
Other:
- Amber Alerts
- Express Messaging
- AdSpot
EXPANSION: As more information feeds become available, they will be made
available to 3M at no additional cost.
TECHNICAL SUPPORT is accessible standard Monday through Friday from 9:00 a.m. to
5:00 p.m. CST. Issues are resolved within eight (8) hours. Data Call engineering
and programmers are offered to 3M at no cost during deployment.
SERVICE LEVEL: Seller will ensure that the Direct ▇▇▇▇ Messenger(TM) System
achieves 99% availability, and maintains an average response time of under 2
seconds, measured over any 30-day period excluding any Scheduled Downtime.
3M is entitled to request a report from Seller on the Availability of the Direct
▇▇▇▇ Messenger(TM) System for the last 30 days.
PRICES:
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SINGLE FEED: Any single feed* is provided for $ XXXX per month per player.
(* other than Traffic - Should Traffic be the only single selection, the price
is $XXXX per month)
GROUP FEED: Any four feeds provided for $XXXX per month per player.
ALL FEEDS: All feeds to be provided for $XXXX per month per player.
3M agrees to pay Seller monthly for their subscribed Active Information Modules
users. 3M to provide Seller with report of services used on a monthly basis.
Report will serve as the basis for invoicing.
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MATERIAL ABOVE MARKED BY AN "X" HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THIS ENTIRE EXHIBIT INCLUDING THE OMITTED
CONFIDENTIAL INFORMATION HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
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