Solutions Engagement Agreement — Professional Services to be provided WDMG —
This
Base
Agreement for professional services solutions (“Base Agreement”) dated below
("Effective Date"), between IT/IS Telecom, Inc. ("Supplier" or “IT/IS”) and
Winsonic Digital Media Group, Ltd. ("Buyer" or “WDMG”) establishes the basis for
a multinational procurement relationship under which Supplier will provide
Buyer
the Deliverables and Services described in SOWs issued under this Base
Agreement. Deliverables and Services acquired by Buyer or one of Buyer’s
customers (“Customer”) on or after the Effective Date will be covered by this
Base Agreement.
This
Base
Agreement will remain in effect until terminated.
1.0
Background
WDMG
and
IT/IS have been in discussions regarding developing an integrated enterprise
plan for and providing general management consulting services to the WDMG
corporate enterprise (“Enterprise”) and its subsidiaries (“Component
Companies”).
1.1
Buyer
Information
|
Company:
|
Winsonic
Digital Media Group, Ltd.
|
|
Name:
|
▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
Title:
|
Chairman
and CEO
|
|
Address:
|
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|
▇▇▇▇,
▇▇▇▇▇ ZIP:
|
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
1.2
Supplier Information
|
Company:
|
IT/IS
Telecom, Inc.
|
|
Name:
|
▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
Title:
|
President
|
|
Address:
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
|
|
▇▇▇▇,
▇▇▇▇▇ ZIP:
|
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
IT/IS
and
its predecessor: the former Ultrapro International, Inc., global telecom
consulting organization (1989 to 2003) — have supported over 75
communications-based companies in over 50 countries. IT/IS began absorbing
the
Ultrapro International, Inc. consultants in 2003.
The
IT/IS
organization now consists of over 100 hundred team
members that average over 35 years of management and technical experience in
the
telecommunications (“Telecom” or “telecom”), information technology and
information systems areas. Our team encompasses experience in telecom billing,
operations, marketing and network engineering, telecom product and services,
and
major mission-critical system and platform migrations – from legacy
networks, process and systems to “next-generation” networks (NGN), and “NextGen”
BSS and OSS technologies and systems.
Page
1
Our
people bring a common mindset to their work assignments, namely, helping our
clients’ technology or process initiatives achieve their business objectives.
The vast majority of them have worked as Telecom industry operations managers,
and have experienced consulting services provided to them by others … running
the gamut — from short-term advisors who depart before the implementation
begins, to consultants who are selling a standard proprietary approach to any
problem. In our case, our philosophy is to remain committed to supporting
clients with customized solutions throughout the entire lifecycle of an
initiative.
IT/IS
integrates (A) world-class telecommunications, information technology, and
information systems subject matter expertise with (B) deep and broad managerial
and operational experience in the industry. Our expertise encompasses Telecom
industry-focused organizational, technology, operational, systems and financial
issues.
Company
Mission
Our
company’s mission is to develop, deliver and help institutionalize solutions
focused on Information Networks and associated Business Processes/Systems that
help clients:
|
•
|
Align
organization policy and strategic goals and objectives with Implementation
plans and deliverables
|
|
•
|
Manage
Transformational Change
|
|
•
|
Identify
areas where they would focus to operationalize their strategic
plans
|
|
•
|
Manage
and operate integrated resources more efficiently and
effectively
|
|
•
|
Improve
and manage communications and information
exchange
|
|
•
|
Increase
security of their enterprise, networks and
applications
|
IT/IS
can
assist clients in identifying and addressing critical enterprise questions
and
issues for our communications industry clients — with a clear understanding of
their business realities — before the issues become "critical path" stumbling
blocks for the client. We do not sell 'one size fits all' solutions or offer
theoretical advice. Rather, we are committed to providing and implementing
unique, customized or off-the-shelf solutions that are appropriate for a
company’s business. These experiences have focused on improving clients’
experiences regarding Network Technology, and associated Business Processes,
including ordering, provisioning, customer care and billing.
Our
solutions have involved various organizational and technical strategies, ranging
from legacy “surrounds” to migration of several legacy systems into a single
existing platform or to a new platform. We understand the critical business
operations and client issues associated with this type of migration, as well
as
the technical and process issues.
IT/IS’
expertise can naturally support client efforts to help their end-user customers
create significant value from key initiatives. We can assess where value can
be
created from improvements to existing operations, or help optimize the future
value of a client’s new initiatives.
Our
combined experience and focus on creating actual value optimally enables us
to
support our clients through all phases of an initiative’s lifecycle. Because of
our operational experience in the communications industry, we do not simply
repackage information that already exists. Rather, we bring experience and
judgment to improve initiatives.
This
“Strategy” thru “Management Framework” thru “Implementation and Operations”
approach enables IT/IS to develop a long-term relationship as our client’s
strategic partner, which best allows the client to have continuing success
over
the course of the client relationship.
Page
2
Our
People – Mindset, Experience, Focus
IT/IS
team members have been successfully providing value to a variety of
communications company business enterprises, as employees and consultants,
for
many decades. Our team members have lived through a period with major changes
in
industry structure (regulated monopoly or PTT to competitive markets), major
changes in technology (analog to digital, copper to fiber, centralized to
distributed to web-enabled computing, wireline to wireless, voice grade to
wideband, connection-oriented to IP-based), and recognize that effective
processes and operations are critical to serving a client base. Moreover, the
recent industry downturn renewed emphasis on selecting those programs and
projects that provide significant opportunities for creating shareholder value
and improving financial results.
International
Markets Experience
IT/IS
consultants have worked with telecommunications operations in several dozen
foreign countries.
|
Argentina Australi *
|
Hondura Indi
|
Slovak South Africa
|
||
|
Belgiu Bermud * Bolivi *
|
Indonesi * ▇▇▇▇▇▇ * Ital *
|
South * Spai * Swede
|
||
|
Brazi Canad *
|
Japa Kazakhsta
|
Switzerlan Thailan
|
||
|
Chin
|
Latvi
|
Taiwa *
|
||
|
Colombia
|
Mexico *
|
Turkmenista
|
||
|
Costa
|
Monaco
|
Ukrain *
|
||
|
Czech *
|
|
Netherland *
|
United
|
|
|
El ▇▇▇▇▇▇
|
Nicaragu Panam
|
United * Uzbekista
|
||
|
Franc * Germany Guatemal
|
Philippine Polan Russi *
|
Venezuel * Vietna
|
* Significant in country
Overview of
Consulting Services
|
• NextGen SDP / NGN / BSS / OSS
|
• Architecture Planning
|
|
|
• Processes/Systems Planning & Development
|
• Network Validation Testing
|
|
|
• Project Management
|
• Operational Readiness Testing
|
|
|
• Network, Systems, Enterprise Integration
|
• Vendor Selection and Management (IV&V)
|
|
|
• Complex Program Support
|
• Technology Assessment
|
|
|
• Organization Re-engineering and Design
|
• Technology Insertion Support
|
|
|
• Strategic Planning
|
• Business Case Formulation
|
|
|
• Quality Assurance
|
• Demand Forecasting
|
|
|
• Transition Planning and Management
|
• Revenue Assurance
|
|
|
• Business Readiness Testing
|
• Information Assurance
|
Page 3
1.3
Key
IT/IS Representatives
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ Esq.
CEO
of IT/IS Telecom Solutions
He
has 24
years of experience in Media, IT and Telecom executive management and
consulting. Since 1991 he has been involved in various new media and
telecom-related ventures and advisory activities, and structured and
participated in several industry-related ventures involving companies such
as
▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇ and AT&T Wireless (1994-1995). From 1991-93 he
was Special Counsel to the former Mayor of Atlanta, and Chairman of the Mayor’s
Commission on the Atlanta Entertainment Industry. ▇▇. ▇▇▇▇▇▇’▇ last firm,
Communications & Information Technology Partners, LLC, was co-founded in
1995 with the late ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. ▇▇. ▇▇▇▇▇▇ formerly was Of Counsel
to the Corporate Technology Department of Atlanta-based Powell, Goldstein,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, helping to develop the firm’s New Media and
telecommunications practice focus (1993-1995).
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Vice
Chairman of IT/IS Telecom Solutions
He
is the
former President of the AT&T Global Network Organization. He has more than
35 years experience in the telecom industry and a broad base of experience
in
strategic business planning, process development and testing, operations,
quality management, engineering, and technology assessment. As President of
AT&T’s Global Network Operations, he was responsible for designing,
building, and operating of that company’s core voice and data telecommunications
networks. He led a major transformation in both the networks and the
organization to achieve dramatic improvements in customer service, operating
costs, asset utilization, and technology insertion.
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇
Executive
Vice President of IT/IS Telecom Solutions
He
is the
former Head of AT&T Capital Planning. He is a 40-year
veteran of the telecommunications industry. He
has been
a leading international consultant in the area of mining data to allow for
bottoms-up development of financial and business planning models to optimize
future operations, development of methodologies for preparing efficient price
catalogs, and engineering of proposed solutions. He has executive experience
in
planning, modeling and management of telecom and computer software enterprises.
Prior
to
joining IT/IS in 1999, he was an executive and senior management consultant
in
the telecommunications and software industries (with ▇▇▇▇ Laboratories,
AT&T, Computer Associates and Ultrapro International, Inc.). Past work has
focused on identifying key business problems, analyzing alternatives, and
providing solutions. He has worked as a senior consultant to numerous companies.
|
·
|
As
Head of AT&T Capital Planning, he spearheaded the effort to move
capital budgeting from an engineering-oriented activity to one focused
on
creating value for the company. He also led the corporate financial
division responsible for consolidated financial
reporting.
|
|
·
|
At
▇▇▇▇ Laboratories he was involved in creating efficient network
architecture plans, planning for technology evolution, and performing
financial analyses on major projects.
|
Page
4
|
·
|
At
Computer Associates he managed product design and quality assurance
efforts for several software
products.
|
During
the last 2 decades, ▇▇. ▇▇▇▇▇ has built upon prior work experiences and
developed new skills to help effectively manage information crucial to the
success of an enterprise. He has developed custom applications that use
information from large databases to provide custom solutions that managers
can
use to improve performance. Advances in the capability of PCs have enabled
the
creation of easy-to-build, and easy-to-use “data boutiques”. Powerful
spreadsheet tools of moderate size can be created using Excel to perform data
quality audits. Rapid prototyping can be used to isolate problems and test
various solutions before implementing in large databases.
The
import of these new PC-based approaches is that Company Management can
successfully utilize parametric business models to monitor operations and
process improvement efforts. Periodic data extracts from operational databases
can be used to highlight process or systems flaws. Root cause analysis can
help
in the selection of solutions. Process and/or information quality health-checks
can bring continued improvements to enterprise operations.
Areas
of Specialized Expertise
|
·
Process
modeling/improvement
|
·
Database
improvement
|
|
|
·
Mathematical
modeling
|
·
Engineering
economics
|
|
|
·
Data
mining/OLAP tools
|
·
Data-based
business solutions
|
|
|
·
Business
decision models
|
·
Cash
flow analysis
|
|
|
·
Data
quality auditing
|
·
Rapid
prototype development
|
|
|
·
Financial
models
|
·
Capital
project prioritization
|
1.4
General Scope of Work
Under
▇▇.
▇▇▇▇▇▇‘s executive leadership, IT/IS team will provide: (1) additional
perspectives and insight into the overall goals and objectives driving the
WDMG
business plan and how the company might deal with its various corporate
objectives, and (2) Subject Matter Experts (SMEs) to assist in the overall
development effort. These SMEs will be available to assist in:
|
·
|
the
overall business planning effort
|
|
·
|
the
development of the WDMG enterprise and operations
plan
|
|
·
|
the
development of descriptions of the functions and cost factors for
the
enterprise
|
|
·
|
development
of a comprehensive financial planning
model
|
|
·
|
the
coordination and integration of the various Component Company
sub-enterprises
|
|
·
|
ongoing
management consulting services
|
IT/IS
has
developed an overall approach to the creation of a Telecommunications-based
Enterprise, based on a management and organizational framework and business
model that contains various functional groupings. The functions within this
framework must all be addressed to form an effective Enterprise Operation.
Therefore, business functions, technical functions, service/product functions
and support functions require skilled personnel to support the enterprise.
The
immediate needs are to plan the WDMG Enterprise sufficiently, to develop
strategic, operations, and cost information for internal assessment, and to
provide an integrated business plan suitable for external review. The planning
needs also encompass addressing several critical functions.
Page
5
The
glue
that holds a newly-created or evolving enterprise together is mostly made up
of
process and methodologies linked with agreed upon deliverables. Those
deliverables will be driven by metrics and performance requirements —
stated in contracts or service level agreements … with both internal and
external customers and suppliers.
An
additional major functional element, in addition to business and technical
functions (including processes & methodologies - which makes the enterprise
bond and operate as an enterprise), is the systems. Some systems are necessary
to support the business functions, maybe a different set of systems to support
the infrastructure and services and yet another set which would support the
sales, marketing, inventory and customer needs. If well planned, these systems
will be under control of a common software structure that enables them to
operate as one centralized support environment.
Initially –
then on an ongoing basis to keep the newly created enterprise addressing
technical and business needs, processes have to be put in place to accept new
systems requirements; configuration tools need to be put into place to make
service and infrastructure changes transparent to the client set. Transaction
processing capabilities need to be implemented to allow for business personnel
to understand to efficiency of the enterprise; similar transactional
requirements are needed for accounting and billing.
Based
on
IT/IS’ experience with many projects similar to this enterprise development
effort (with multiple parts and work activities that must be coordinated and
integrated within a constrained time window), we will likely recommend that
WDMG
accept our proposal to support WDMG’s definition of an effective set of
processes and systems and create the enterprise (model, methodologies, processes
& linkages), again in enough detail to describe the benefits and quantify
the costs of the WDMG Enterprise Operation.
Under
this Base Agreement and future Statements of Work (SOWs), IT/IS will:
1.
Provide leadership support and resources as appropriate to facilitate the
development of the necessary planning effort, covering:
|
·
|
Strategies
impacting ongoing operations
|
|
·
|
Component
company and management roles and
responsibilities
|
|
·
|
WDMG
integrated operations plan
|
|
·
|
WDMG
service descriptions, including customer care and billing objectives
|
|
·
|
WDMG
cross-functional services
|
|
·
|
Customer
care objectives
|
|
·
|
Sales
planning
|
2.
Provide leadership support and resources to:
|
·
|
Analyze
operating requirements
|
|
·
|
Determine
those functions that are best performed by the WDMG Enterprise, Component
Companies and 3rd
party providers
|
3.
Support the Leadership of an integrated team to create a proposed WDMG
Enterprise organization plan that will enable successful implementation and
ongoing management of the proposed enterprise. Notably, the recommended
organization will support the following functional areas and additionally always
keep an awareness of MBE goal attainment:
Page
6
|
·
|
Strategy,
Product and Solutions Development
|
|
·
|
Network
and Computing Infrastructure Engineering & Implementation
|
|
·
|
Business
Intelligence
|
|
·
|
Marketing
& Product Planning
|
|
·
|
Network
and Computing Infrastructure Maintenance & Monitoring
|
|
·
|
Legal
& Regulatory
|
|
·
|
Managed
Services Infrastructure Planning
|
| · |
Sales
|
|
·
|
Managed
Services Infrastructure
Implementation
|
|
·
|
Customer
Billing & Inquiry
|
| · |
Information
Technologies
|
|
·
|
Service
and Solutions Provisioning
|
|
·
|
Industry
Customer Billing
|
|
·
|
Service
and Solutions Maintenance
|
|
·
|
Network,
Service and Solutions Planning
|
|
·
|
Vendor
Management
|
|
·
|
Customer
and Network Care
|
|
·
|
Enterprise
Support Functions
|
|
·
|
Contract
Management
|
|
·
|
Procurement
Management
|
|
·
|
Inventory
Management
|
|
·
|
SLA
Management
|
|
·
|
Quality
Management
|
Successful
achievement of the objectives will assist
WDMG as follows:
|
·
|
Development
of an Integrated WDMG Enterprise Framework /
Model
|
|
·
|
Develop
a WDMG Management and Operational Framework of processes &
methodologies in support of the above
model
|
|
·
|
Develop
a set of roles and responsibilities in support of the above enterprise
model
|
|
·
|
Suggest
Systems Support options
|
|
·
|
Suggest
3rd Party outsourcing options
|
|
·
|
Create
a value description of the WDMG
Enterprise
|
|
·
|
Suggest
Network / Customer Care Options
|
Page
7
|
·
|
Provide
Enterprise Cost information
|
|
·
|
Provide
the Enterprise Operations finance
model
|
|
·
|
Facilitate
sessions to develop WDMG positions and strategies vis-à-vis the
Enterprise
|
|
·
|
Facilitate
sessions with Component Companies to gain their alignment with WDMG
Enterprise strategies, functions, and
operations
|
|
·
|
Working
with the WDMG transition team in providing assistance in developing
a
smooth transition plan to transition from the present WDMG enterprise
environment to the newly-formed WDMG Enterprise
|
2.0
Statements of Work
Supplier
will provide Deliverables and Services as specified in the relevant SOW only
when specified in a Work Authorization ("WA"). Supplier will begin work only
after receiving WA from Buyer. Buyer may request changes to a SOW and Supplier
will submit to Buyer the impact of such changes. Changes accepted by Buyer
will
be specified in an amended SOW or change order signed by both parties.
3.0
Pricing
Supplier
will provide Deliverables and Services to Buyer for the Prices. Except for
pre-approved expenses specified in the relevant SOW, the Prices for Deliverables
and Services specified in a WA and accepted by Buyer will be the only amount
due
to Supplier from Buyer. Supplier is not entitled to payment under this Agreement
for activities also covered by a Business Partner Agreement with Buyer.
4.0
Payments and Acceptance Terms
Buyer
shall pay Suppler a $25,000 retainer.
Otherwise,
terms for payment for services will be specified in the relevant SOW and/or
WA.
Payment of invoices will not be deemed acceptance of Deliverables or Services,
but rather such Deliverables or Services will be subject to inspection, test,
acceptance or rejection in accordance with the acceptance or completion criteria
as specified in the relevant SOW and/or WA. Buyer or Customer may, at its
option, either reject Deliverables or Services that do not comply with the
acceptance or completion criteria for a refund, or require Supplier, upon
Buyer’s written instruction, to repair or replace such Deliverables or
re-perform such Service, without charge and in a timely manner.
5.0
Warranties
5.1
Ongoing Warranties
Supplier
makes the following ongoing representations and warranties:
|
(a)
|
it
has the right to enter into this Agreement and its performance of
this
Agreement will comply, at its own expense, with the terms of any
contract,
obligation, including any between Supplier and its end-users; or
any law,
regulation or ordinance to which it is or becomes subject;
|
|
(b)
|
it
is incorporated or organized as a corporation;
|
|
(c)
|
no
claim, lien, or action exists or is threatened against Supplier that
would
interfere with Buyer’s rights under this Agreement;
|
Page
8
|
(d)
|
Deliverables
and Services do not infringe any privacy, publicity, reputation or
intellectual property right of a third party;
|
|
(e)
|
all
authors have agreed not to assert their moral rights (personal rights
associated with authorship of a work under applicable law) in the
Deliverables, to the extent permitted by
law;
|
|
(f)
|
Services
will be performed using reasonable care and skill and in accordance
with
the relevant SOW and/or WA; and
|
|
(g)
|
it
will comply with all applicable data privacy laws and regulations,
will
implement and maintain appropriate technical and other protections
for the
Personal Data, and will cooperate fully with Buyer’s requests for access
to, correction of, and destruction of Personal Data in Supplier’s
possession.
|
5.2
Standard Warranties
THE
WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS,
EXPRESS OR IMPLIED, INCLUDING THOSE WARRANTIES OR CONDITIONS OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
5.3
Warranty Redemption
Subject
to Section 8.0 Supplier Liability for Third Party Claims, if Deliverables or
Services do not comply with the warranties in this Agreement, Supplier will
repair or replace Deliverables or re-perform Services, without charge and in
a
timely manner. If Supplier fails to do so, Buyer or Customer may repair or
replace Deliverables or re-perform Services and Supplier will reimburse Buyer
for actual and reasonable expenses. Any reimbursement for Program Products
pursuant to the foregoing sentence shall be limited to two times the amount
of
license fees and maintenance services specified in the SOW.
6.0
Delivery
Deliverables
or Services will be delivered as specified in the relevant SOW and/or WA. Buyer
may cancel or reschedule the delivery date or change the delivery point as
specified in the relevant SOW and/or WA. Risk of loss and title to any tangible
property will pass to Buyer or Buyer’s Customer at the delivery point. If
Supplier cannot comply with a delivery commitment, Supplier will promptly notify
Buyer of a revised delivery date and Buyer may:
|
(a)
|
cancel
without charge Deliverables or Services not yet delivered; and
|
|
(b)
|
exercise
all other remedies provided at law, in equity and in this Agreement.
|
7.0
Intellectual Property
7.1
Work
Made for Hire
All
Developed Works belong exclusively to Buyer or Customer and are works made
for
hire. If any Developed Works are not considered works made for hire owned by
operation of law, Supplier assigns the ownership of copyrights in such works
to
Buyer or Customer.
Page
9
—
Professional Services to be provided WDMG —
7.2
Preexisting Materials
Supplier
will not include any Preexisting Materials in any Deliverable unless they are
listed in the relevant SOW. Supplier grants Buyer a nonexclusive, worldwide,
perpetual, irrevocable, paid-up, license to prepare and have prepared derivative
works of Preexisting Materials and to use, have used, execute, reproduce,
transmit, display, perform, transfer, distribute, and sublicense Preexisting
Materials or their derivative works, and to grant others the rights granted
in
this Subsection.
7.3
Tools
Supplier
will not include Tools in Deliverables unless they are listed in the relevant
SOW. Supplier grants Buyer a nonexclusive, worldwide, perpetual, irrevocable,
paid-up, license to prepare and have prepared derivative works of Tools, and
to
use, have used, execute, reproduce, transmit, display and perform Tools or
their
derivative works. The rights and licenses granted by Supplier to Buyer under
this subsection include the right of Buyer to authorize others to exercise
any
of the rights granted to Buyer in this Subsection.
7.4
Invention Rights
Supplier
owns Inventions. Supplier grants to Buyer and Customer an irrevocable,
nonexclusive, worldwide, perpetual, paid-up license under Inventions (including
any patent applications filed on or patents issued claiming Inventions). The
license scope is to make, have made, use, have used, sell, license or transfer
items and to practice and have practiced methods.
7.5
Joint
Invention Rights
The
parties will jointly own all Joint Inventions and resulting patents. Either
party may license others under Joint Inventions (including any patent
applications filed on or patents issued claiming Joint Inventions) without
accounting to or consent from the other.
7.6
Perfection of Copyrights
Upon
request, Supplier will provide to Buyer a "Certificate of Originality" or
equivalent documentation to verify authorship of Deliverables. Supplier will
confirm assignment of copyright for Developed Works using the "Confirmation
of
Assignment of Copyright" form and will assist Buyer in perfecting such
copyrights.
7.7
Perfection of Invention Rights
Supplier
will identify all countries in which it will seek patent protection for each
Invention. Supplier authorizes Buyer to act as its agent in obtaining patent
protection for the Inventions in countries where Supplier does not seek patent
protection. Supplier will, at Buyer’s expense, assist in the filing of patent
applications on Inventions and have required documents signed.
7.8
Trademarks
This
Agreement does not grant either party the right to use the other party’s or
their Affiliates’ trademarks, trade names or service marks.
7.9
Patents
Supplier
grants to Buyer a nonexclusive, worldwide, perpetual, irrevocable, and paid-up
license under any patents and patent applications licensable by Supplier to
make, have made, use, have used, import, export, sell, and otherwise transfer
the Deliverables and use the Services to the extent authorized in this
Agreement.
Page
10
Solutions
Engagement Agreement
—
Professional Services to be provided WDMG —
7.10
Program Products
Customer
will receive a license agreement from Buyer or Supplier for Program Products,
to
which Buyer is not a party nor liable for violations. If a Program Product
is
available under an existing Buyer agreement, the terms of that agreement will
control distribution of that Program Product. Buyer may install and test Program
Products for Customer without charge. For recurring charge licenses, Buyer
will
notify Supplier when to begin invoicing Customer, if applicable.
8.0
Supplier Liability for Third Party Claims
8.1
General Indemnification
Supplier
will defend, hold harmless and indemnify, including legal fees, Buyer and Buyer
Personnel against third party claims that arise or are alleged to have arisen
as
a result of negligent or intentional acts or omissions of Supplier or Supplier
Personnel or breach by Supplier of any term of this Agreement.
8.2
Intellectual Property Indemnification
Supplier
will defend, or at Buyer’s option cooperate in the defense of, hold harmless and
indemnify, including legal fees, Buyer, Buyer Personnel and Customer from third
party claims that Supplier’s Deliverables or Services infringe the intellectual
property rights of a third party. If such a claim is or is likely to be made,
Supplier will, at its own expense, exercise the first of the following remedies
that is practicable:
1.
obtain
for Buyer and Customer the right to continue to use, sell and license the
Deliverables and Services consistent with this Agreement;
2.
modify
Deliverables and Services so they are non-infringing and in compliance with
this
Agreement;
3.
replace the Deliverables and Services, or other affected Deliverables or
Services, with non-infringing ones that comply with this Agreement;
or
4.
at
Buyer's request, accept the cancellation of infringing Services and the return
of infringing Deliverables and refund any amount paid. Buyer will give Supplier
prompt notice of third party claims against Buyer, and cooperate in the
investigation, settlement and defense of such claims.
8.3
Exceptions to Indemnification
Supplier
will have no obligation to indemnify Buyer, Buyer Personnel or Customer for
claims that Supplier’s Deliverables or Services infringe the intellectual
property rights of a third party to the extent such claims arise as a result
of:
|
(a)
|
Buyer’s
or Customer’s combination of Deliverables or Services with other products
or services not reasonably foreseeable by Supplier and such infringement
or claim would have been avoided in the absence of such combination;
|
|
(b)
|
Supplier’s
implementation of a Buyer originated design and such infringement
or claim
would have been avoided in the absence of such implementation; or
|
|
(c)
|
Buyer’s
or Customer’s modification of the Deliverables and such infringement or
claim would have been avoided in the absence of such modification.
|
Page
11
Solutions
Engagement Agreement
—
Professional Services to be provided WDMG —
9.0
Limitation of Liability between Supplier and Buyer
In
no
event will either party be liable to the other for any lost revenues, lost
profits, incidental, indirect, consequential, special or punitive damages.
This
mutual Limitation of Liability does not limit the obligations and liability
of
Supplier provided in Section 8.0 Supplier Liability for Third Party Claims.
In
no event will either party be liable for the respective actions or omissions
of
its Affiliates under this Agreement.
10.0
Supplier and Supplier Personnel
Supplier
is an independent contractor and this Agreement does not create an agency,
partnership, or joint venture relationship between Buyer and Supplier or Buyer
and Supplier Personnel. Buyer assumes no liability or responsibility for
Supplier Personnel. Supplier will:
|
(a)
|
ensure
it and Supplier Personnel are in compliance with all laws, regulations,
ordinances, and licensing requirements;
|
|
(b)
|
be
responsible for the supervision, control, compensation, withholdings,
health and safety of Supplier Personnel;
|
|
(c)
|
inform
Buyer if a former employee of Buyer will be assigned work under this
Agreement, such assignment subject to Buyer approval; and
|
|
(d)
|
ensure
Supplier Personnel performing Services on Buyer’s or Customer’s premises
comply with Buyer’s On Premises Guidelines and upon request, provide
Buyer, for export evaluation purposes, the country of citizenship
and
permanent residence and immigration status of those persons. Buyer
retains
the right to refuse to accept persons made available by Supplier
for
export reasons.
|
11.0
Insurance
Supplier
will maintain at its expense normal and customer insurance coverage.
12.0
Term and Termination
12.1
Termination of this Base Agreement
Either
party may terminate this Base Agreement, without any cancellation charge, for
a
material breach of the Agreement by the other party or if the other party
becomes insolvent or files or has filed against it a petition in bankruptcy
("Cause"), to the extent permitted by law. Such termination will be effective
at
the end of a thirty (30) day written notice period if the Cause remains uncured.
Either party may terminate this Base Agreement without Cause when there are
no
outstanding SOWs or WAs.
12.2
Termination of a SOW or WA
Buyer
may, upon written notice to Supplier, terminate a SOW or WA:
|
(a)
|
with
Cause effective immediately; or
|
|
(b)
|
without
Cause.
|
Upon
termination, in accordance with Buyer’s written direction, Supplier will
immediately: (i) cease work; (ii) prepare and submit to Buyer an itemization
of
all completed and partially completed Deliverables and Services; (iii) deliver
to Buyer Deliverables satisfactorily completed up to the date of termination
at
the agreed upon Prices in the relevant SOW and/or WA; and (iv) deliver upon
request any work in process.
Page
12
Solutions
Engagement Agreement
—
Professional Services to be provided WDMG —
In
the
event Buyer terminates without Cause, Buyer will compensate Supplier for the
actual and reasonable expenses incurred by Supplier for work in process up
to
and including the date of termination provided Supplier uses reasonable efforts
to mitigate Buyer’s liability under this Subsection by, among other actions,
accepting the return of, returning to its suppliers, selling to others, or
otherwise using the canceled Deliverables (including raw materials or work
in
process) and provided such expenses do not exceed the Prices.
13.0
General
13.1
Amendments
This
Agreement may only be amended by a writing specifically referencing this
Agreement which has been signed by authorized representatives of the parties.
13.2
Assignment
Neither
party will assign their rights or delegate or subcontract their duties under
this Agreement to third parties or Affiliates without the prior written consent
of the other party, such consent not to be withheld unreasonably, except that
either party may assign this Agreement in conjunction with the sale of a
substantial part of its business utilizing this Agreement. Any unauthorized
assignment of this Agreement is void.
13.3
Choice of Law and Forum; Waiver of Jury Trial; Limitation of Action
This
Agreement and the performance of transactions under this Agreement will be
governed by the laws of the country where the Buyer entering into the relevant
agreement or PA is located, except that the laws of the State of Georgia
applicable to contracts executed in and performed entirely within that State
will apply if any part of the transaction is performed within the United States.
The United Nations Convention on Contracts for the International Sale of Goods
does not apply. The parties expressly waive any right to a jury trial regarding
disputes related to this Agreement. Unless otherwise provided by local law
without the possibility of contractual waiver or limitation, any legal or other
action related to this Agreement must be commenced no later than two (2) years
from the date on which the cause of action arose.
13.4
Communications
All
communications between the parties regarding this Agreement will be conducted
through the parties’ representatives as specified in the relevant SOW.
13.5
Counterparts
This
Agreement may be signed in one or more counterparts, each of which will be
deemed to be an original and all of which when taken together will constitute
the same agreement. Any copy of this Agreement made by reliable means (for
example, photocopy or facsimile) is considered an original.
13.6
Exchange of Information
All
information exchanged is non confidential. If either party requires the exchange
of confidential information, it will be made under a separate signed
confidentiality agreement between the parties. The parties will not publicize
the terms of this Agreement, or the relationship, in any advertising, marketing
or promotional materials without prior written consent of the other party except
as may be required by law, provided the party publicizing obtains any
confidentiality treatment available.
Page
13
Solutions
Engagement Agreement
—
Professional Services to be provided WDMG —
Supplier
will use information regarding this Agreement only in the performance of this
Agreement. For any business personal information relating to Supplier Personnel
that Supplier provides to Buyer, Supplier has obtained the agreement of the
Supplier Personnel to release the information to Buyer and to allow Buyer to
use
such information in connection with this Agreement.
13.7
Freedom of Action
This
Agreement is nonexclusive and either party may design, develop, manufacture,
acquire or market competitive products or services. Buyer will independently
establish prices for resale of Deliverables or Services and is not obligated
to
announce or market any Deliverables or Services and does not guarantee the
success of its marketing efforts, if any.
13.8
Force Majeure
Neither
party will be in default or liable for any delay or failure to comply with
this
Agreement due to any act beyond the control of the affected party, excluding
labor disputes, provided such party immediately notifies the other.
13.9
Obligations of Affiliates
Affiliates
will acknowledge acceptance of the terms of this Agreement through the signing
of a PA before conducting any transaction under this Agreement.
13.10
Prior Communications and Order of Precedence
This
Agreement replaces any prior oral or written agreements or other communication
between the parties with respect to the subject matter of this Agreement,
excluding any confidential disclosure agreements. In the event of any conflict
in these documents, the order of precedence will be:
|
(a)
|
the
quantity, payment and delivery terms of the relevant WA;
|
|
(b)
|
the
relevant SOW;
|
|
(c)
|
this
Base Agreement; and
|
|
(d)
|
the
remaining terms of the relevant WA.
|
13.11
Record Keeping and Audit Rights
Supplier
will maintain (and provide to Buyer upon request) relevant business and
accounting records to support invoices under this Agreement and proof of
required permits and professional licenses, for a period of time as required
by
local law, but not for less than three (3) years following completion or
termination of the relevant SOW and/or WA. All accounting records will be
maintained in accordance with generally accepted accounting principles.
13.12
Severability
If
any
term in this Agreement is found by competent judicial authority to be
unenforceable in any respect, the validity of the remainder of this Agreement
will be unaffected, provided that such unenforceability does not materially
affect the parties’ rights under this Agreement.
Page
14
Solutions
Engagement Agreement
—
Professional Services to be provided WDMG —
13.13
Survival
The
provisions set forth in the following Sections and Subsections of this Base
Agreement will survive after termination or expiration of this Agreement and
will remain in effect until fulfilled: "Ongoing Warranties", "Intellectual
Property", "Supplier Liability for Third Party Claims", "Limitation of Liability
between Supplier and Buyer", "Record Keeping and Audit Rights", "Choice of
Law
and Forum; Waiver of Jury Trial; Limitation of Action", "Exchange of
Information", and "Prior Communications and Order of Precedence."
13.14
Waiver
An
effective waiver under this Agreement must be in writing signed by the party
waiving its right. A waiver by either party of any instance of the other party’s
noncompliance with any obligation or responsibility under this Agreement will
not be deemed a waiver of subsequent instances.
Acceptance
The
foregoing proposal is accepted and agreed to by WDMG and IT/IS on whose behalf
each of the undersigned is duly authorized to execute and deliver this
Acceptance and by signing this; the undersigned signify their intent to enter
into a contract for the completion of the work described above.
Page
15
Solutions
Engagement Agreement
—
Professional Services to be provided WDMG —
ACCEPTED
FOR WINSONIC DIGITAL MEDIA GROUP, LTD.
|
AUTHORIZING
SIGNATURE
|
|
|
NAME
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
|
TITLE
|
Chief
Executive Officer
|
|
DATE
|
August
__, 2008
|
ACCEPTED
FOR IT/IS TELECOM, INC.
|
AUTHORIZING
SIGNATURE
|
|
|
NAME
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
TITLE
|
Chief
Executive Officer
|
|
DATE
|
August
__, 2008
|
Page
16
Solutions
Engagement Agreement
—
Professional Services to be provided WDMG —
DEFINITIONS
"Affiliates"
means
entities that control, are controlled by, or are under common control with
a
party to this Agreement.
"Agreement"
means
this Base Agreement and any relevant Statements of Work ("SOW"), Work
Authorizations ("WA"), and other attachments or appendices specifically
referenced in this Agreement.
“Business
Partner Agreement”
means an
agreement executed between Buyer and Supplier to promote, market, and support
certain products and services.
"Customer"
means
Buyer’s customer.
"Deliverables"
means
items that Supplier prepares for or provides to Buyer or Customer as described
in a SOW. Deliverables include Equipment, Program Products, Developed Works,
Preexisting Materials and Tools.
"Developed
Works"
means
all work product (including software and its Externals) developed in the
performance of this Agreement as described in a SOW and does not include
Preexisting Materials, Tools, Program Products, or items specifically excluded
in a SOW.
"Equipment"
means a
machine, its features, elements, cables, or accessories, including the
documentation required to install, support, use, and maintain it.
"Externals"
means
any pictorial, graphic, audiovisual works, reports or data generated by
execution of code and any programming interfaces, languages or protocols
implemented in the code to enable interaction with other computer programs
or
end users. Externals do not include the code that implements them.
"Inventions"
means
ideas, designs, concepts, techniques, inventions, discoveries or improvements,
whether or not patentable, conceived or reduced to practice by Supplier or
Supplier Personnel in performance of this Agreement.
"Joint
Inventions"
means
Inventions made by Supplier or Supplier Personnel with Buyer
Personnel.
"Participation
Agreement"
or
"PA"
means an
agreement signed by one or more Affiliates which incorporates by reference
the
terms and conditions in this Base Agreement, any relevant SOW, and other
attachments or appendices specifically referenced in the PA.
"Personnel”
means
agents, employees or subcontractors engaged or appointed by Buyer or
Supplier.
"Preexisting
Materials"
means
items including their Externals, contained within a Deliverable, in which the
copyrights are owned by a third party or that Supplier prepared or had prepared
outside the scope of this Agreement. Preexisting Materials exclude Program
Products and Tools, but may include material that is created by the use of
Tools.
"Prices"
means
the agreed upon payment and currency for Deliverables and Services, including
all applicable fees, payments and taxes, as specified in the relevant SOW and/or
WA.
Page
17
Solutions
Engagement Agreement
—
Professional Services to be provided WDMG —
"Program
Products"
means
Supplier’s commercially available software and the documentation required to
install, support, use, and maintain it.
"Services"
means
work that Supplier performs for Buyer as described in a SOW.
"Statement
of Work"
or
"SOW" means
any
document that:
1.
identifies itself as a statement of work;
2.
is
signed by both parties;
3.
incorporates by reference the terms and conditions of this Base Agreement;
and
4.
describes the Deliverables and Services, including any requirements,
specifications or schedules.
"Tools"
means
software that is not commercially available, and its Externals, required for
the
development, maintenance or implementation of a software Deliverable other
than
a Program Product.
"Work
Authorization"
or
"WA"
means
Buyer’s authorization in either electronic or tangible form for Supplier to
conduct transactions under this Agreement in accordance with the applicable
SOW
(i.e., a purchase order, ▇▇▇▇ of lading, or other Buyer designated document).
A
SOW is a WA only if designated as such in writing by Buyer.
Page
18