DIGITALPOST INTERACTIVE – LOCAL.COM GOVERNING CONTRACT AGREEMENT
Portions
of this exhibit indicated by "***" have been omitted pursuant to the Company’s
request for confidential treatment under Rule 24b-2 of the Securities Exchange
Act of 1934, as amended, and the omitted material has been separately filed with
the Securities and Exchange Commission.
DIGITALPOST
INTERACTIVE – XXXXX.XXX
This
Governing Contract Agreement (“Agreement”) effective as of the date of the later
signature below, (“Effective Date”) is by and between Xxxxx.xxx Corporation.
(“Partner”), a Delaware corporation with its principal place of business at Xxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx X, Xxxxxx, XX 00000, and DigitalPost Interactive
(“DPI”), a Nevada corporation with its principal place of business at 0000 Xx
Xxxxxx Xxxx, Xxx. 000, Xxxxxx, XX 00000. The parties to this
Agreement may be collectively referred to hereinafter as the “Parties” or
individually as a “Party”.
The
Parties desire to enter into a business relationship in accordance with the
terms and conditions of this Agreement and intending to be legally bound, hereby
agree as follows:
DEFINITIONS
|
1.
|
LUAU
AD MANAGEMENT SYSTEM
|
LUAU
Project. LUAU Project is owned by
Partner and hereinafter collectively
referred to as “LUAU”. DPI’s contribution to
the partner’s LUAU project includes the creation of the Software, hosting,
infrastructure and integration for the LUAU Ad Management System (Batch / Bulk
Upload Engine, Content Library with Auto-Fill Engine, Ad Unit Creation
Engine,***).
Development
Services. DPI will design, develop, integrate and deliver to Partner the
LUAU project in accordance with the LUAU specifications in the Statement of Work
set forth in the attached, Exhibit A.
Hosting
Services. Once configured, DPI shall encode, host, serve, monitor, manage
and maintain the LUAU project (the “Hosting Services”). Without limited the
foregoing, DPI shall (a) provide all facilities, equipment, connections,
bandwidth, software and other resources necessary to fulfill its obligations
under this Agreement (“DPI’s Systems”) and (b) provide access to the Hosted
Solution by Partner, its Affiliates and their end users via the Internet. DPI
shall implement control measures consistent with the highest industry standards
to protect the Hosted Solution from unauthorized access to the Hosted Solution
and from the introduction of any willfully introduced computer virus or any
other similar harmful, malicious or hidden program or data.
|
2.
|
Performance
Period
|
Performance
Period. The Services shall be provided and valid during the period
commencing as of the full execution of this Statement of Work, and continuing
for two years following the date of Acceptance by Partner of the Hosted Solution
by Partner (the “Performance Period”), unless otherwise amended or terminated as
provided in the Agreement.
Performance
Schedule. The Services will be performed in accordance with the Activity
/ Deliverable Schedule in Exhibit A.
|
3.
|
COMPENSATION
|
Software.
DPI shall provide the Software, Deliverables and all Services under this
Statement of Work for the following fixed fees:
3(a) Development
Cost:
|
·
|
Payment. Partner agrees to
pay DPI $165,000 for the development of the Project listed within Exhibit
A.
|
|
·
|
Payment Schedule: The
Development Cost is payable in six traunches (See Exhibit
A)
|
3(b) Service Level Agreement
(SLA):
The charges for this SLA are as
follows:
|
·
|
$2,000
per month starting after the completion of Phase
1a
|
|
·
|
Content
Library Storage
|
|
o
|
No
charge up to 500GB
|
|
o
|
Overages
$0.30/GB
|
|
·
|
Content
Library Bandwidth
|
|
o
|
No
charge up to 500GB
|
|
o
|
Overages
$0.44/GB
|
With the exception of
major feature releases, the SLA includes:
|
·
|
Hosting
|
|
·
|
Patches
|
|
·
|
Software
Updates
|
|
·
|
Maintenance
|
(See SLA Exhibit
B)
|
4.
|
Support and
Maintenance.
|
DPI will
provide 24 hours of monthly technical support for Project Platform at no
additional cost. Support services in excess of such 24 hours per month must be
authorized by Partner in writing and will be billed on a monthly basis at US$125
per hour.
There are
no reimbursable expenses authorized for this Statement of Work.
|
5.
|
TERM AND
TERMINATION
|
This
agreement shall commence on the Effective Date and shall continue in force for
one (1)) year subject to termination as provided below. Following
this period, Agreement shall automatically renew on a month to month basis
unless either Party elects by written notice to terminate the Agreement with 60
days written notice..
Termination. Prior
to first renewal period, either Party may terminate this Agreement upon ninety
(90) days written notice to the other Party.
Rights Upon
Termination. Upon termination of this Agreement, each Party
shall return or destroy the other Party’s confidential information, cease any
use of the other Party’s name, products or services, or product literature, and
terminate any links from its website(s) any description, review or other
reference to either Party’s website(s); provided that the terms of the
confidentiality agreement between the Parties shall survive termination of this
Agreement according to its terms. In addition, DPI shall deliver the Luau Ad
Management System, including Software in source code form along with all
supporting documentation and any other items so Partner can fully operate the
Luau Ad Management System in a manner consistent with Exhibit A, as may be
amended.
|
6.
|
Confidentiality. Neither Party
(each, a “Recipient”) shall disclose to any third party or use for its own
benefit the other Party’s (each, a “Discloser”) proprietary or
confidential information except as authorized by the
Discloser. All confidential information of the Discloser shall
remain the sole property of the Discloser. This provision does
not apply to information which the Recipient lawfully receives from a
third party having no obligation of confidentiality or which the Recipient
independently develops. Each Party represents that each of its
employees having access to the other’s confidential information will,
prior to receiving such information from the Recipient, have executed a
customary non-disclosure agreement with the Recipient. These
restrictions and obligations shall remain in effect for a period of three
(3) years from the date this Agreement is terminated or
expires.
|
|
7.
|
INTELLECTUAL
PROPERTY DPI acknowledges
and agrees that Partner and its licensors retain all right, title and
interest in and to Project Luau and the Software. This Agreement does not
constitute a license, express or implied, by either Party to the other
Party to make, have made, use, reproduce, distribute, display or perform
any of such Party’s intellectual property rights, including but not
limited to patents, copyrights, trademarks or trade
secrets. All rights not expressly granted to either Party by
the other in this Agreement are reserved by such other
Party.
|
|
8.
|
TRADEMARKS AND
TRADENAMES
|
8(a) Rights in
Trademarks. Both Parties acknowledge that the other Party is
the owner of all right, title and interest in and to its name and certain
related designs associated therewith (“Trademarks”), together with any new or
revised names or materials which the Trademark owner may adopt to identify it or
any of its Services during the Term, and each Party agrees not to adopt or use
any of the other Party’s Trademarks in any manner whatsoever except as expressly
provided in this Agreement.
8(b) License to Use
Trademarks. Each Party hereby grants to the other Party a
non-exclusive license during the Term to use their Trademarks, provided that
they are used solely in connection with the marketing of their Services and in
accordance with the Trademark owner’s specifications as to style, color and
typeface. Upon expiration or termination of this Agreement, each
Party will take all action necessary to transfer and assign to the Trademark
owner, or its nominee, any right, title or interest in or to any of the
Trademarks, or the goodwill related thereto, which the non-Trademark owner Party
may have acquired in any manner as a result of the marketing of the Trademark
owner’s Services under this Agreement and shall cease to use any Trademark of
the other Party. Each Party hereby agrees to notify the other Party
immediately if any infringement or potential infringement of any Trademark is
made known to the notifying Party.
|
9.
|
WARRANTY AND LIMITED
LIABILITY
|
9(a) DPI
MAKES NO WARRANTY TO THE PARTNER WITH RESPECT TO THE DPI SERVICE OF ANY KIND,
EXPRESS OR IMPLIED. THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY
DISCLAIMED. THIS PROVISION SHALL SURVIVE TERMINATION OR EXPIRATION OF
THIS AGREEMENT.
9(c)
NEITHER PARTY, UNDER ANY CIRCUMSTANCES, SHALL BE LIABLE TO THE OTHER PARTY FOR
DAMAGES OF ANY NATURE, WHETHER DIRECT OR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR
SPECIAL, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OF GOODWILL, OR FOR
EXPENDITURES MADE OR COMMITTED TO BY THE OTHER PARTY IN RELIANCE UPON
CONTINUATION OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS PROVISION SHALL SURVIVE TERMINATION OR
EXPIRATION OF THIS AGREEMENT.
|
10.
|
MISCELLANEOUS
|
10(a) Notices. All
notices by either Party given under this Agreement shall be in writing and shall
be hand delivered or sent certified mail, return receipt requested or by
overnight courier. Notice may be given by facsimile if confirmed in
writing, by first class mail, postage pre-paid or by overnight
courier. Notices to each Party shall be given at their respective
addresses first above written.
10(b)
Assignment. DPI shall not assign any of its rights, interests
or obligations under this Agreement to a third party without the other Partner’s
prior written consent.
10(c) Relationship of the
Parties. It is understood that each Party is an independent
entity. Nothing in this Agreement shall be construed to constitute
the Partner or DPI as an employee or agent of the other or to create any rights
other than the rights described in this Agreement. This Agreement
does not constitute a franchise or a joint venture. Neither Party
shall have the power to obligate the other for any expenses or other obligation
without the prior written approval of the other Party.
10(d) Applicable
Law. This Agreement shall be governed by and construed
according to the laws of the State of California.
10(e)
Severability. Any provision of this Agreement which is
adjudged to be illegal, invalid or unenforceable in any respect shall not affect
any other provision of this Agreement and the balance of the Agreement shall
continue in full force and effect.
10(f) Entire
Agreement. This Agreement, including any Attachments hereto,
supersedes all other agreements and representations, express or implied, written
or oral, between the Parties with respect to the subject matter of this
Agreement. This Agreement shall not be changed or modified except in
a writing signed by duly authorized personnel of each Party.
10(g) Headings. The
sections and paragraph headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
10(h) Force
Majeure. Neither Party shall be liable for any failure or
delay in its performance under this Agreement due to causes, including, but not
limited to, an act of God, act of civil or military authority, fire, epidemic,
flood, earthquake, riot, war sabotage, labor shortage or dispute, and
governmental action, which are beyond its reasonable control.
|
11.
|
Publicity. Subject
to the other
party’s prior written approval, which shall not be unreasonably withheld,
either Party
may issue a press release or make statements to the press or general
public regarding this Agreement.
|
DigitalPost
Interactive and Xxxxx.xxx, Governing Contract Agreement
***
Portions of this page have been omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange
Commission
IN WITNESS WHEREOF, the
Parties have executed this Agreement as of the Effective Date.
DigitalPost Interactive,
Inc. Xxxxx.xxx
Corp.
By: /s/
Xxxx
Xxxxxxx By: /s/ Xxxx
Xxxxxx
Printed
Name: Xxxxxxx
Xxxxxxx
Printed
Name: Xxxx Xxxxxx
Title: President / CEO
Title: CFO
Date: February
19,
2009
Date: February 19,
2009
DigitalPost
Interactive and Xxxxx.xxx, Governing Contract Agreement
***
Portions of this page have been omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange
Commission
Exhibit
A: LUAU Ad Management System
Declarations:
DPI will
work with the Xxxxx.xxx team to ensure this project scope meets the
specifications as desired by Xxxxx.xxx.
Deliverables:
LUAU Ad
Management Systems initially consisting of fully integrated Batch / Bulk Upload
Engine,
Content
Library, Ad Unit Creation system, *** and Reporting (the
“Software”).
Project
Description:
DPI will
build the LUAU Ad Management System for Xxxxx.xxx. This will include
a Batch / Bulk Upload Engine, a Content Library with an Auto-Fill Engine, an Ad
Unit Creation Engine, and ***. In
addition, reporting will be provided for each area. The LUAU Ad
Management System will reside of DPI’s scalable platform while being closely
integrated with Xxxxx.xxx’s platform via agreed upon
Webservices. Each of the above applications will be built with
extensibility in mind to allow for future feature growth.
The
project cycle will be created in the interest of learning as much as possible
before development start and the provision of heavy testing to validate the
readiness of launching the LUAU Ad Management System. In addition,
the project will focus on having the following three sections provided first
based on Xxxxx.xxx’s interests: Batch / Bulk Upload Engine, Content Library with
Auto-Fill Engine, and Ad Unit Creation Engine.
Part of
the project build will allow for a pilot program, to be agreed upon between both
parties, to allow for refining the system before complete rollout with
Xxxxx.xxx.
Batch / Bulk Upload
Engine
DPI will
build a Batch / Bulk Upload Engine which will work with the Content Library and
Ad Unit Creation Engine. The file types supported will be based on
the ones currently is use by Xxxxx.xxx.
The Batch
/ Bulk Upload Engine will be made accessible via a secure web application
providing for a controlled environment.
Content Library with
Auto-Fill Engine
DPI will
build out a Content Library System for use by the ***. This system
will be manageable by Xxxxx.xxx staff supporting textual copy and various media
types initially focusing on images and videos.
The
Content Library will allow for:
-***
-usage by
the Auto-Fill Engine
The
Auto-Fill Engine will provide for:
-***
A Secure Extranet will be provided for management by the Xxxxx.xxx
staff.
Ad Unit Creation
Engine
DPI will
create an which will automatically create Ad Unit Creation Engine *** based on
Xxxxx.xxx’s criteria. It will come with several standard containers,
but allow for future expansion.
The Ad Unit Creation Engine
initially will function based on the following steps:
1: Engine
notified of Batch / Bulk Upload Engine
2: The
standard containers are prepared
3: The
meta-data is prepared
4: The
Engine compiles the Flash-based Ad Units by using the meta-data and Content
Library Auto-Fill Engine
5: The ad
units are placed in a location, TBD
The Ad
Units will be built in Adobe Flash.
***
DPI will
build out the *** to enhance the way an *** is presented.
The ***
will allow for:
|
-
|
***
|
|
-
|
Changing
and Uploading content for use within the ***
|
|
-
|
Theme
changing (some will default based on business
categories)
|
|
-
|
Auto-filling
of empty sections by the content
library
|
|
-
|
Recording
of visitor usage
|
The
presentation layer will be built with Adobe Flash.
Current Out of Scope
Items
|
-
|
LP
Admin
|
|
-
|
Call
Center *** Management
|
|
-
|
Call
Center *** Vetting
|
|
-
|
Agency
Management
|
|
-
|
Ad
Server with Edge of Network service
|
Project
Cycles
The LUAU
Project will consist of the following phases. Contained herein are
expected phase durations and necessary Xxxxx.xxx’s commitment
levels. These expectancies will be refined during the
Analysis/Software Requirements Phase. The phases are not necessarily
linear and therefore do not suggest a start and completion date.
|
Example
Start Date: February 16th,
2009
|
||
|
Project
Phases
|
Expected
Completion Dates
|
Expected
Durations
|
|
Scoping
|
Complete
|
2
weeks
|
|
Analysis
/ Software Requirements *
|
February
20th
|
1
week
|
|
Design
|
February
27th
|
2
weeks
|
|
Development:
**
Batch
/ Bulk Upload Engine, Content Library with Auto-Fill Engine and Ad Unit
Creation Engine
|
March
13th
|
4
weeks
|
|
Testing
& Pilot
|
March
27th
|
2
weeks
|
|
Development:
***
|
April
24th
|
4
weeks
|
|
Testing
& Pilot
|
May
22nd
|
4
weeks
|
|
Documentation
& Training
|
May
27th
|
3
days
|
|
Deployment
|
June
3rd
|
1
week
|
|
Post
Implementation Review
|
June
8th
|
3
days
|
|
Maintenance
|
XXX
|
XXX
|
The
overall project timeline is expected to come in about 4 months.
* The
Analysis / Software Requirements Phase will help lockdown the
timeline.
** The
Batch / Bulk Upload Engine has been brought into this first project phase which
affects the timeline and costs associated.
Project Cost and Payment
Schedule
|
Phases
|
Scheduled
Project Goal
|
Cost
|
Target
Date
|
|
Phase
1a
|
Project
Launch Initial
|
$50,000
|
Feb.
16th,
2009
|
|
Beta
complete:
Batch
/ Bulk Upload Engine, Content Library with Auto-Fill Engine, and Ad Unit
Creation Engine
|
$25,000
|
Mar.
13th,
2009
|
|
|
Pilot
complete:
Batch
/ Bulk Upload Engine, Content Library with Auto-Fill Engine, and Ad Unit
Creation Engine
|
$25,000
|
Mar.
27th,
2009
|
|
|
Exit
Clause: See End of Phase 1a Exit Clause below
|
|||
|
Phase
1b
|
Beta
complete:
***
|
$25,000
|
Apr.
24th,
2009
|
|
Pilot
complete:
***
|
$20,000
|
May
22nd,
2009
|
|
|
Deployment
complete:
|
$20,000
|
June
3rd,
2009
|
|
Total
Project Cost: $165,000
End of Phase 1a Exit
Clause
After all
Phase 1a software is delivered to Xxxxx.xxx and after all Phase 1a payments
($50,000, $25,000, $25,000) are received by DigitalPost, Xxxxx.xxx reserves the
right to cancel with 15 days prior notice to DigitalPost all software
development shown in Phase 1b and related Phase 1b payments ($25,000, $20,000,
$20,000) to the extent Xxxxx.xxx deems the Phase 1a deliverables upon delivery
do not meet the agreed upon requirements which are to be defined during the
Analysis/Software Requirements phase of the LUAU Ad Management System
Project.
Fees due upon following
schedule
• Invoice
payable net fifteen (15) days of receipt.
|
Project
Proposal acknowledged and approved by:
DigitalPost
Interactive,
Inc. Xxxxx.xxx
Corp.
By: /s/
Xxxx
Xxxxxxx By: /s/ Xxxx
Xxxxxx
Printed
Name: Xxxxxxx
Xxxxxxx
Printed
Name: Xxxx Xxxxxx
Title: President / CEO
Title: CFO
Date: February
19,
2009
Date: February 19,
2009
|
DigitalPost
Interactive and Xxxxx.xxx, Governing Contract Agreement
***
Portions of this page have been omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange
Commission
Exhibit
B: Service Level Agreement
SERVICE
AVAILABILITY
A.
Definition. DigitalPost Interactive’s Systems (as defined above) will have a
ninety-nine and nine tenths of a percent (99.9%) Service Availability 24x7x365.
“Service Availability” means that
DigitalPost Interactive’s Equipment are fully operating in accordance with the
Agreement and all applicable Statements of Work without any
downtime,
delays or
other problems.
B.
Notification by DigitalPost Interactive. DigitalPost Interactive will monitor
DigitalPost Interactive Systems 24x7x365 and shall notify
Xxxxx.xxx:
(i)
within one hour in the event that DigitalPost Interactive discovers a Severity
Level 1 or
Severity
Level 2 incident (as defined below),
(ii)
within four hours in the event that DigitalPost Interactive discovers a Severity
Level 3
incident
(as defined below), or
(ii)
within twenty-four hours in the event that DigitalPost Interactive discovers a
Severity Level
4
incident (as defined below).
2.
SCHEDULED DOWNTIME/MAINTENANCE
DigitalPost
Interactive will notify each Xxxxx.xxx of any scheduled downtime for any part of
DigitalPost Interactive Systems (including downtime for DPI to implement
platform upgrades, patches and/or fixes) (“Scheduled Downtime”) at least
15 days prior to such Scheduled Downtime. All Scheduled Downtime shall be
scheduled at times and for durations to minimize their impact on Xxxxx.xxx and
its customers.
3.
SEVERITY LEVELS AND RESOLUTION PROCESSES
A. Level
1 - Emergency. DigitalPost Interactive Systems suffer an Error which cannot be
reasonably circumvented and which either (i) causes any significant
functionality of DigitalPost Interactive’s Systems to fail to execute, (ii)
impairs any critical function of the DigitalPost Interactive’s Systems, or (iii)
otherwise so substantially slows the performance of the DigitalPost Interactive
Systems as to effectively render it unusable. DigitalPost Interactive will
respond to Xxxxx.xxx’s notice of such Error within 1 hour. Following DigitalPost
Interactive’s response to the Error notice from Xxxxx.xxx, DigitalPost
Interactive shall exercise its best efforts working 24 hours a day, 7 days a
week to address and remedy such Error. DigitalPost Interactive shall provide
Xxxxx.xxx with updates on the status of the Level 1 Error at reasonable
intervals as the status changes and until resolved. “Error” means any
nonconformance in DigitalPost Interactive’s systems which prevent them from
performing in accordance with the specifications set forth in the Agreement and
each Statement of Work, as applicable.
B. Xxxxx
0 - Xxxxxx. DigitalPost Interactive’s Systems suffer an Error (which is not a
Level 1 Error) which cannot be reasonably circumvented by Xxxxx.xxx in a timely
fashion and which
substantially
impairs the use of one or more portions or features of DigitalPost
Interactive’s
Systems
but that does not impair any necessary business functions of
Xxxxx.xxx’s
business.
DigitalPost Interactive will respond to Xxxxx.xxx’s notice of such Error within
2 hours.
Following
DigitalPost Interactive’s response to the Error notice from Xxxxx.xxx,
DigitalPost Interactive shall exercise its best efforts working continually to
address and remedy such Error during DigitalPost Interactive’s normal business
hours within 7 days.
C. Level
3 - Significant. DigitalPost Interactive’s Systems suffer an Error (which is not
a Level 1 or 2 Error) which impairs the use of one or more portions or features
of DigitalPost Interactive’s
Systems
but that does not impair any necessary business functions of
Xxxxx.xxx’s
business
and can be reasonably circumvented by Xxxxx.xxx in a timely fashion. DigitalPost
Interactive will respond to Xxxxx.xxx’s notice of such Error within 24 hours.
Following DigitalPost Interactive’s response to the Error notice from Xxxxx.xxx
DigitalPost Interactive shall exercise commercially reasonable efforts working
continually to address and remedy such error during DigitalPost Interactive’s
normal business hours within 14 days. A Level 3 incident shall be
automatically
escalated to a Level 2 Error if DigitalPost Interactive does not resolve such
Error
within 48
hours of the end of the foregoing 14 day period.
D. Level
4 - Other Errors and Issues. If Xxxxx.xxx reports an Error with DigitalPost
Interactive’s Systems that is not classified as a Level 1, 2 or 3 Error,
DigitalPost Interactive may address such Error in its next scheduled software
release.
4.
SUPPORT PERSONNEL; ESCALATION PROCEDURES
A.
DigitalPost Interactive’s customer care representatives shall be available by
phone 24x7x365 to address any questions, issues or Errors.
B. In the
event that a Xxxxx.xxx is not satisfied by the responsiveness or level of
support
provided
by DigitalPost Interactive, it shall have the right to escalate the issue as
follows:
i. Xxx
Xxxxx, VP Technology, xxxxxx@xxxx.xxx, 000-000-0000 (cell)
ii.
Xxxxxxx Xxxxxxx, CEO/President, xxxxxxxx@xxxx.xxx, 000-000-0000
(cell)
5.
TERMINATION FOR SERVICE LEVEL FAILURES.
Xxxxx.xxx
may terminate any of its Statements of Work for breach by DigitalPost
Interactive in the event that a Termination Event occurs. A “Termination Event” will be
deemed to have occurred if the following occurs more than 4 times in a 12 month
period: (a) a Level 1 incident (or a series of Level 1 incidents) lasts for more
than 24 hours (from the time DigitalPost Interactive receives notice of such
emergency) in any consecutive 6 month period, and (b) the Level 1 incident is
not caused by Xxxxx.xxx’s systems or the systems of Xxxxx.xxx’s other
contractors, which includes, but is not limited to, its servers, operating
systems and telecommunications systems or any third party systems, which
includes, but it not limited
to, any
broadband systems.
DigitalPost
Interactive and Xxxxx.xxx, Governing Contract Agreement
***
Portions of this page have been omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange
Commission
