EXHIBIT 10.9
SPRINT SPECTRUM L.P. CONFIDENTIAL INFORMATION Page 1
Ver. 1.0 Type II 12/21/01
WIRELESS INTERNET SERVICE AGREEMENT
This WIRELESS INTERNET SERVICE AGREEMENT ("Agreement") is effective as of 30
July, 2001 ("Effective Date"), between Sprint Spectrum L.P., a Delaware limited
partnership doing business as Sprint PCS ("Sprint PCS") and Retreival Dynamics
Corporation, a Florida corporation ("Service Provider"). The parties desire to
provide Service Provider's Internet-based content, media, communications or
commerce services as part of the Sprint PCS Services.
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DESCRIPTION OF SERVICE PROVIDER CONTENT AND SERVICES (FOR USE IN THE SPRINT PCS
SERVICES AND PROMOTIONAL MATERIALS)
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Service Provider link name as it is to appear in the Sprint PCS Services:
QxprintTM or XXX.XXXXXXX.XXX (must include all desired capitalization,
punctuation, trade / service marking, etc.)
Long Description (1 brief paragraph):
QxprintTM is a hosted application that allows you to create a "virtual" desktop
FREE-of-Charge, where you can up-load and manage stored contacts along with
printable files, documents, and data. Using a browser-based Sprint PCS phone and
Internet connectivity, you can access your desktop and merge new or stored
contacts to secure pre-defined documents, files, or data. With a few simple
commands the Sprint PCS phone will be used as a "remote-control" device to
access and select a contact along with selected information to be sent via
email, fax, or Print-on-Demand services for Postal Service and FedEx delivery
options.
Short Description for Marketing / Promotional Use (15-20 words): QxprintTM
allows the Sprint PCS phone to function as a "Command-and-Control" unit for
retrieving, sending, and printing documents, files and data.
Short Description for Use within the Sprint PCS Services (8-10 words):
QxprintTM: Send or Print Documents/Files by Email, Fax, USPS, and FedEx.
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SERVICE PROVIDER SERVICES
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The Service Provider Services will consist of the following features, and will
be developed in an **HDML 3.0 (or higher), **WML 1.1 (or higher) and an HTML
format optimized for wireless hand-held devices, by Service Provider for Sprint
PCS Acceptance Testing according to Section 12.1. Service Provider will allow
Sprint PCS adequate lead-time and the ability to test, verify and approve new
features on the Service Provider Services prior to their launch. New features
include, but are not limited to, new flows, new functionality, new hardware,
changes in the operational environment, or new data requirements.
** Sprint PCS will provide HDML/WML Style Guides to support the design of the
Service Provider Services. Service Provider will adhere to the requirements
outlined in the Style Guides.
Phase 1:
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The initial version of the Service Provider Services will include following
features:
* Free 25 megs of storage for contacts, data, files, and documents
* Quick Send feature
* No Registration Charge, Transaction Based, therefore the registered person
is only charged for use per transaction.
Phase 2
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In a subsequent version, the Service Provider Services will include the
following Enhancements (as defined in Section 2.1):
* 1. Support over 250+ active file formats.
2. Subscription based service model.
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LINK PLACEMENT
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Service Provider may request one of the following general placement categories
as its preferred location for the link to the Service Provider Services.
__ Shopping __ News __ Finance __ Travel __ Entertainment __ Weather
__ Tools & Reference XX Business Tools __ Web Portals __ Sports __ People
__ Games __ Messaging
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SERVICE PROVIDER ADDRESS AND CONTACT INFORMATION
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Service Provider Address: 0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Contact Name: Xxxxx Xxxxxxxx Title: Business Development Director
Phone Number: 000-000-0000 xxx 000 Fax Number: 000-000-0000
E-mail Address: xxxxxxxxx@xxxxxxx.xxx
By signing below, each party agrees that it has read and consents to the terms
and conditions on the following pages.
Signed:
Sprint Spectrum L.P. Service Provider: Retrieval Dynamics Corporation
Signature:/s/Xxxxxx Danarco Signature:/s/ Xxx Xxxxxx
Print Name: Xxxxxx Danarco Print Name: Don Xxxxxx Xxxxxxxx
Title: SA DIRECTOR Title: Vice President / General Manager
Date: OCT 19,2001 Date: 31 July 2001
SPRINT SPECTRUM L.P. CONFIDENTIAL INFORMATION Page 1
1. DEFINITIONS
"Service Provider Data" means all information collected or developed by Service
Provider regarding its customers who are Users under this Agreement or derived
specifically from a User's use of the Service Provider Services or otherwise
provided directly to Service Provider by Users.
"Service Provider Services" means the set of features, functionality, data,
graphics, sounds, text and other information, material or other content in
electronic form provided by Service Provider to Sprint PCS, including any
upgrades or Enhancements, for transmission to Users.
"Handset" means the hand-held digital electronic equipment meeting the
requirements of and authorized by Sprint PCS for Users to access any of the
various Sprint PCS Services.
"Sprint PCS Affiliate" means: (a) any entity in which Sprint PCS holds at least
a 20% equity interest; (b) any entity controlling, controlled by or under common
control with Sprint PCS, directly or indirectly by or through one or more
intermediaries; (c) any entity that is authorized to sell network digital
wireless communications products or services under the "Sprint PCS" brand name
or any other brand name(s) subsequently primarily used by Sprint PCS to market
its network digital wireless communications products or services; or (d) any
entity to which Sprint PCS is required by law, regulation or contract to provide
wireless telecommunications network services involving the services to be
provided under this Agreement.
"Sprint PCS Data" means all information collected or developed by Sprint PCS
regarding its customers who are Users under this Agreement or derived
specifically from a User's use of the Sprint PCS Services or the Sprint PCS
Wireless Telecommunications Network, including the Mobile Identification Number
(MIN) issued by Sprint PCS to a User, the Electronic Serial Number (ESN)
associated with a Handset, and any customer information described in the FCC
definition of "Customer Proprietary Network Information" as set forth in 47 USC
222(h)(1).
"Sprint PCS Services" means the wireless communication services provided by
Sprint PCS, on behalf of itself or the Sprint PCS Affiliates or both, utilizing
radio frequencies assigned by regulatory agencies.
"Sprint PCS Wireless Telecommunications Network" means any and all
telecommunications systems built, owned or operated by Sprint PCS or any of the
Sprint PCS Affiliates.
"User" means any individual who uses any of the Sprint PCS Services.
2. SERVICES
2.1 Scope of Services. This Agreement is for the provision of Service Provider
Services to Sprint PCS for transmission across the Sprint PCS Wireless
Telecommunications Network to Users with Handsets. Service Provider may make
changes, modifications, updates and enhancements (each an "Enhancement") to the
Service Provider Services if:
(a) the Enhancement complies with all requirements in this Agreement; and
(b) the Service Provider Services continue to include, at a minimum, the
Phase I features described above.
2.2 Placement. Sprint PCS will place the link to the Service Provider Services
within an appropriate category of the Sprint PCS Wireless Web (or successor
branded service) during the Initial Term of this Agreement. Actual placement of
the link to the Service Provider Services will be in Sprint PCS' sole
discretion. The link may be moved or repositioned at any time in Sprint PCS'
sole discretion, or may be otherwise moved or removed by Users as part of any
wireless web personalization functionality when available. In addition to
placement of the link as set forth above, Service Provider grants Sprint PCS the
right, in accordance with the terms of this Agreement, to include the Service
Provider Services on other services provided, or supported, by Sprint PCS
including, but not limited to, services provided by Sprint PCS, Sprint PCS
Affiliates, or other third parties (e.g. Sprint PCS' private label customers)
that are authorized by Sprint PCS to sell digital wireless communication
services, under the Sprint or Sprint PCS brand name or under a third party brand
name.
2.3 Forecasted Usage. Prior to launch Service Provider will provide Sprint PCS
with a forecast of the amount of traffic expected for the Service Provider
Services. Service Provider's systems will, at a minimum, support the level of
traffic indicated in that forecast. If traffic levels exceed the forecast,
Service Provider will upgrade its systems as necessary to support the increased
traffic level, and will provide Sprint PCS with an updated forecast.
2.4 Customer Support. Sprint PCS will be responsible for all customer support
relating to the Sprint PCS Services and the Sprint PCS Wireless
Telecommunications Network. Service Provider will be responsible for all
customer support issues relating to Service Provider Services. Service Provider
will appropriately refer all User questions and inquiries regarding Sprint PCS
or the Sprint PCS Services to Sprint PCS' Customer Care unit. The parties will
reasonably cooperate with each other to provide necessary customer support
services. Service Provider will provide the following internal contact
information for User referrals, in both electronic and hard copy format, to
Sprint PCS' Customer Care unit at least 10 business days before launch of the
Service Provider Services:
(a) Service Provider toll free phone number and email address for Users
with a new account: 0-000-000-0000 xxxxxxx@xxxxxxx.xxx
(b) Service Provider toll free phone number and email address for existing
Users: 0-000-000-0000 xxxxxxx@xxxxxxx.xxx
2.5 Representatives. Each party will designate a representative who will serve
as that party's single point of contact with the other party for purposes of
supervising and managing performance of the respective parties' obligations
under this Agreement (the "Representative"). All technical, marketing or other
business issues will be communicated to the other party's Representative, and
each party's Representative will be authorized to respond on its behalf with
respect to such issues. The Representatives will hold conference calls on a
mutually agreeable basis.
2.6 Reporting. On a monthly basis Service Provider will, no later than 30 days
after the end of the previous month, provide a report to Sprint PCS that details
the information listed below.
1. Total aggregate hits/page views performed at Service Provider's site
(by category, if applicable).
2. Total aggregate minutes of use spent at Service Provider's site (by
category, if applicable).
3. Total aggregate number of unique Users (Users with a unique MIN) that
visited Service Provider's site (by category, if applicable).
4. Total gross E-commerce revenue (by category, if applicable).
5. Total aggregate number of E-commerce transactions (by category, if
applicable).
6. Total gross premium service revenue (by category, if applicable).
7. Total aggregate number of premium service transactions (by category,
if applicable).
8. Any additional reports mutually agreed upon by both parties.
Sprint PCS and Service Provider will mutually agree on the format of these
reports. Reports will be sent to: Sprint PCS, c/o Xxxx XxXxxxx, Mailstop:
KSOPHE0302-3D552, 0000 Xxxxxx Xxxxxxx, Xxxxxxxx Xxxx, XX 00000, e-mail address:
xxxxxx00@xxxxxxxxxxxxxx.xxx.
2.7 Service Prohibitions. Service Provider is solely responsible for the
development, operation and maintenance of any website necessary to provide the
Service Provider Services. Excluding any editorial comments of Service Provider
SPRINT SPECTRUM L.P. CONFIDENTIAL INFORMATION Page 2
or a third party that may be included in the Service Provider Services,
materials that are knowingly posted in the Service Provider Services will not:
(a) intentionally disparage, defame, or discredit Sprint PCS or any Sprint PCS
Affiliate, or contain information that is intentionally derogatory or
detrimental to the good name or business reputation of Sprint PCS or any Sprint
PCS Affiliate; (b) intentionally facilitate or promote illegal activity, or
contain information that is illegal; (c) contain information that is defamatory,
obscene, distasteful, racially or ethnically offensive, harassing, or
discriminatory based upon race, gender, color, creed, age, sexual orientation,
or disability; or (d) contain sexually explicit content. Subsections (a) through
(d) above are collectively referred to as the "Content Standards." If Sprint PCS
reasonably determines that Service Provider has violated any of the Content
Standards, Sprint PCS may temporarily suspend the Service Provider Services.
Sprint PCS will notify Service Provider by writing or e-mail of the violation
and Service Provider must cure the violation within 3 business days (the "Cure
Period") by removing the link from the Service Provider Services to the Sprint
PCS Services, or removing the specific portion of the Service Provider Services
that violates the Content Standards. If Service Provider reasonably disputes
Sprint's determination of a violation of any of the Content Standards, the
parties agree to meet in good faith to resolve the dispute. Sprint PCS may
suspend the Service Provider Services during the pendency of the dispute. If
Service Provider has not requested a meeting, and has failed to cure the Content
Standard violation within the Cure Period, Sprint PCS may immediately terminate
this Agreement. In addition, neither party will take any action, including but
not limited to data mining or any similarly disruptive practice, that is
intended to and does interfere with the development, operation, maintenance or
content of: (i) the other party's or the party's affiliates websites; or (ii)
the other party's respective servers or other equipment related to the
development, operation and maintenance of websites.
2.8 No Advertising. Service Provider will not display any advertising in the
Service Provider Services.
2.9 Temporary Suspension of the Service Provider Services. Sprint PCS may
temporarily suspend the Service Provider Services as Sprint PCS deems necessary
in the normal management and operation of the Sprint PCS Wireless
Telecommunications Network, or if Service Provider violates either Section 8 or
the restoral expectations in Section 12.2. If Sprint PCS temporarily suspends
under this section, it will insert a `card' notifying Users of the Service
Provider Services that the Service Provider Services are temporarily
unavailable.
3. PAYMENT AND FEES
3.1. No Charge for Service Provider Services. The Service Provider Services,
including all Enhancements, are provided to Sprint PCS at no charge. Each party
will be individually responsible for any expenses it incurs in developing,
producing, and transmitting its respective service.
3.2. Service Fee. In consideration for the placement of the Service Provider
Services as set forth in Section 2.2, and for other services provided under this
Agreement, Service Provider will pay Sprint PCS a service fee ("Service Fee") of
$20,000.00 for the Initial Term. The Service Fee for any Renewal Term will be
mutually agreed upon by the parties prior to the Renewal Term. The Service Fee
must be received by Sprint PCS within 30 days after the Effective Date.
3.3. Revenue Sharing. Sprint PCS will receive 30% of the gross transaction
revenue generated from the Service Provider Services and derived from the
Handset. Each party will be responsible for its own tax obligations. Gross
revenue subject to this subsection includes that derived from:
(a) any premium service that requires the User to pay a fee to access and
use the premium service; and
(b) electronic commerce transactions (gross sales amount, less returns,
discounts and freight).
3.4 Invoicing and Payment Procedures. All amounts payable by Service Provider to
Sprint PCS under Section 3.3 are due to Sprint PCS on a monthly basis within 30
days following the end of each month. Sprint PCS may impose a finance charge of
1 1/2% per month (or the maximum legal rate) on payments not received within
this 30 day period. Payments must be remitted to the following Sprint PCS
location:
Sprint PCS
Dept CH 10615
Palatine, IL 60055-0615
4. MARKETING AND PROMOTION
4.1 Service Provider Marks. Sprint PCS may wish to include Service Provider's
name, description, or logos in certain marketing materials including, but not
limited to, those that it sends to its customers, displays in retail locations,
displays on its web site, in press releases or any third party retailer/Co-op
advertising materials and promotional activities.
Please check the appropriate box below regarding use of Service Provider name
and logos.
CHECK ONE:
|_| Service Provider AUTHORIZES Sprint PCS to use Service Provider's name,
description, and logos, subject to Service Provider's branding guidelines,
in marketing and promoting the Sprint PCS Services as set forth above.
|_| Service Provider DOES NOT AUTHORIZE Sprint PCS, without first obtaining
prior written approval, to use Service Provider's name, description, and
logos in marketing and promoting the Sprint PCS Services.
Service Provider name as it is to appear in promotional materials is as follows:
QxprintTM property of Retrieval Dynamics Corporation (must include all desired
capitalization, punctuation, trade/service marking, "property of" indicators
(legal attributes), etc.)
4.2 Publicity. Service Provider will not make any news release, public
announcement, reference to this Agreement, its value, or its terms and
conditions, or in any manner advertise or publish the fact of this Agreement.
Nothing in this Agreement is intended to imply that Sprint PCS will agree to any
publicity, and Sprint PCS may, in its sole discretion, withhold its consent to
any publicity.
5. TERM AND TERMINATION
5.1 Term. The initial term of this Agreement begins on the Effective Date and
ends after 1 year (the "Initial Term"). After the expiration of the Initial
Term, this Agreement will be automatically extended on a 30 day basis until
terminated by either party with at least 30 days prior written notice (each 30
day period a "Renewal Term").
5.2 Termination for Convenience. Sprint PCS may terminate this Agreement for any
reason, without liability, by providing at least 30 days prior written notice to
Service Provider. Unless otherwise provided in Sprint PCS' notice, the
termination is effective 30 days after the date of the notice. If Sprint
terminates this Agreement under this Section, Service Provider will receive a
pro-rata refund of the Service Fee it paid to Sprint under Section 3.0 (based on
the number of full months remaining in the Initial Term). Service Provider may
terminate this Agreement for any reason, without liability, by providing at
least 30 days prior written notice to Sprint PCS. Unless otherwise provided in
Service Provider's notice, the termination is effective 30 days after the date
of the notice. If Service Provider terminates the Agreement under this Section,
Service Provider will not receive a refund of the Service Fee.
5.3 Termination for Breach. Either party may terminate this Agreement if the
other party breaches any material term of this Agreement and the breach is not
cured within 30 days after written notice of the breach is provided to the
defaulting party by the non-defaulting party. Unless otherwise provided in the
notice, or unless the breach has been cured, the termination is effective 30
days after the date of the notice.
SPRINT SPECTRUM L.P. CONFIDENTIAL INFORMATION Page 3
6. CONFIDENTIAL INFORMATION
6.1 General. Each party acknowledges that while performing its obligations under
this Agreement it may have access to Confidential Information of the other
party. "Confidential Information" means any information concerning a party's
trade secrets, products, planned products, services or planned services,
suppliers, customers, prospective customers, data, financial information,
computer software, processes, methods, knowledge, inventions, ideas, marketing,
promotions, discoveries, current or planned activities, research, development,
or other information relating to a party's business activities or operations or
those of its customers or suppliers. This Agreement creates a confidential
relationship between the parties. Both parties will keep the terms of this
Agreement and all Confidential Information confidential and, except as
authorized by the other party in writing, the receiving party will only use, and
make copies of, Confidential Information to perform the Services or its
obligations as required under this Agreement. Upon termination of this
Agreement, or upon the disclosing party's request, the receiving party will
return or destroy all documents and other materials in the receiving party's
control that contain or relate to Confidential Information. Upon request by the
disclosing party, the receiving party will provide written certification to the
disclosing party that it has returned or destroyed all Confidential Information,
including any duplicate copies. Both parties will inform their personnel who
will have access to Confidential Information of their obligations of
confidentiality, and will require their personnel to comply with the terms of
this Agreement. If reasonably requested by either party, the other party will
have those personnel sign a non-disclosure agreement at least as restrictive as
this Section. Both parties agree to disclose Confidential Information only to
its personnel, including its subcontractors and agents, who have a legitimate
business need to know Confidential Information in order to perform that party's
obligations under this Agreement. If any material, non-public information is
disclosed, the receiving party will comply with SEC Regulation FD (Fair
Disclosure), and refrain from trading in the disclosing party's stock until that
material, non-public information is publicly disseminated.
6.2 Exceptions; Injunctive Relief. Confidential Information does not include
information that the receiving party can demonstrate by written documentation:
(i) is rightfully known to the receiving party prior to negotiations leading to
this Agreement; (ii) is independently developed by the receiving party without
any reliance on Confidential Information; (iii) is or later becomes part of the
public domain or is lawfully obtained by the receiving party from a third party
not under an obligation of confidentiality; or (iv) is required to be disclosed
by law or legal process, as long as the receiving party uses reasonable efforts
to cooperate with the disclosing party to limit disclosure. Both parties
acknowledge that disclosure of Confidential Information by the receiving party
will cause irreparable injury to the disclosing party, its customers and other
suppliers, that is inadequately compensable in monetary damages. In addition to
any other remedies in law or equity, the disclosing party may seek injunctive
relief for the breach or threatened breach of this Section; the breaching party
will not raise the defense of an adequate remedy at law.
7. Grant of licenses and rights
7.1 Service Provider Licenses. Service Provider grants Sprint PCS and Sprint PCS
Affiliates a non-exclusive, non-transferable (with no right to sub-license)
license to use, reproduce, display, and transmit the Service Provider Services,
in any current or future xxxx-up language or format, as necessary to enable
Users of the Sprint PCS Services to access and utilize the Service Provider
Services on the Handset. Service Provider also grants Sprint PCS a
non-exclusive, non-transferable (with no right to sub-license) license to use,
reproduce, display, and transmit Service Provider trademarks and service marks
(the "Service Provider Brand Marks") in connection with: (i) the display of
Service Provider Services; and (ii) the marketing or promotion of the Service
Provider Services. Sprint PCS will not modify the Service Provider Services
without Service Provider's prior consent, except as necessary to address
technical concerns related to the telecommunications network transmission of the
Service Provider Services, however, any technical modifications by Sprint PCS
will not alter the information, content, display, or services included in the
Service Provider Services. Sprint PCS may use the Service Provider Services or
any transferred Service Provider Data to monitor Service Provider's performance
and compliance with the terms of this Agreement, for quality assurance purposes,
and for Sprint PCS' internal marketing research purposes.
7.2 Sprint PCS Licenses. Sprint PCS is authorized to license the following to
Service Provider: (i) the Sprint diamond logo; (ii) Sprint PCS xxxx; and (iii)
the Sprint PCS Wireless Web xxxx (collectively, the "Sprint PCS Authorized
Marks"). Sprint PCS grants Service Provider a non-exclusive, non-transferable
(with no right to sub-license) license to use, reproduce, display, and transmit
the Sprint PCS Authorized Marks, subject to Sprint PCS' prior written approval
and Sprint PCS' brand and trademark guidelines: (i) on tangible written
materials (excluding printouts of web pages) promoting the Sprint PCS Services;
and (ii) in connection with the marketing and promotion of the Sprint PCS
Services. Service Provider is not permitted to use any of the Sprint PCS
Authorized Marks for any other purpose without Sprint PCS' prior written
approval.
8. Ownership and USE OF DATA
8.1 Service Provider Ownership. Sprint PCS acknowledges and agrees that Service
Provider owns all right, title and interest in Service Provider Brand Marks,
Service Provider Data, and Service Provider Services (excluding third party
content and services incorporated in the Service Provider Services pursuant to
valid license rights), and except for the licenses in this Agreement, nothing in
this Agreement will confer in Sprint PCS any right of ownership in the
foregoing.
8.2 Sprint PCS Ownership. Service Provider acknowledges and agrees that Sprint
PCS owns all right, title and interest in the Sprint PCS Data, the Sprint PCS
Wireless Telecommunications Network, the Sprint PCS Authorized Marks, and the
Sprint PCS Services (excluding third party content and services incorporated in
the Sprint PCS Services pursuant to valid license rights), and except for the
licenses in this Agreement, nothing in this Agreement will confer in Service
Provider any right of ownership in the foregoing.
8.3 Rights and Limitations. All Sprint PCS Data is the exclusive property of
Sprint PCS. Service Provider will not, except as otherwise stated in this
Agreement, store, copy, analyze, monitor, or otherwise use any Sprint PCS Data,
including location-based information. If Sprint PCS Data is made available to
Service Provider, Service Provider will not use that data unless the parties
have entered into a separate written agreement governing the use of that data.
All Service Provider Data is the exclusive property of Service Provider. Sprint
PCS will not, except as otherwise stated in this Agreement, store, copy,
analyze, monitor, or otherwise use any Service Provider Data. Nothing in this
Agreement prevents or limits: (i) Service Provider from communicating directly
with Users of Service Provider Services or (ii) Sprint PCS from communicating
directly with Users.
8.4 Solicitation; Disclosure. Service Provider will not use the Service Provider
Services for the transmission of "spam" or any other distribution of unsolicited
information, including telemarketing, unless the User expressly consents on the
Handset. Sprint PCS will not use the Sprint PCS Services for the transmission of
"spam" or any other distribution of unsolicited information, including
telemarketing, unless the User expressly consents. Neither party will use any
information obtained from the activities contemplated under this Agreement to
target advertisements or marketing to Users based on the User's use of the other
party's products or services. Neither party will disclose the other party's
information or data provided to it under this Agreement to any third party in a
manner that identifies the User as end user of a Service Provider product or
service or of the Sprint PCS Services.
9. Warranties AND DISCLAIMERS
9.1 Date/Time Functionality; Viruses. Service Provider warrants that all
hardware, software and networks used by Service Provider to fulfill its
obligations under this Agreement, which depend on a date processing function,
will: (i) perform and process date arithmetic and date/time data in a consistent
and accurate manner and in a manner that is unambiguous as to century; and (ii)
to the extent any hardware, software or networks are used in combination with
other software, hardware or networks, they will properly interoperate with the
other software, hardware or networks, including the exchange of date/time data.
In addition, Service Provider warrants that it will not intentionally introduce
into Sprint PCS' hardware, software, or network any software virus, worm, "back
door," "Trojan Horse," or similar harmful code. If Service Provider's hardware,
software, or network is not compliant with this warranty, Service Provider will,
at its expense, promptly correct or modify the hardware, software, or network so
that it is compliant.
9.2 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BOTH PARTIES'
SERVICES, INFORMATION, CONTENT AND OTHER MATERIALS DELIVERED UNDER THIS
AGREEMENT ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. EACH PARTY
SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
REGARDING ANY MATERIALS PROVIDED UNDER THIS AGREEMENT, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT FOR
THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY
THAT ITS SERVICE WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE. THE PARTIES
ACKNOWLEDGE THAT USE OF ANY DATA OR INFORMATION OBTAINED BY USERS THROUGH EITHER
PARTY'S SERVICE IS AT USERS' OWN DISCRETION AND RISK, AND THAT USERS WILL BE
SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM USE THEREOF. EACH PARTY AGREES
TO INCLUDE A DISCLAIMER IN SUBSTANTIALLY SIMILAR FORM TO THE PREVIOUS SENTENCE
IN THEIR RESPECTIVE USER'S AGREEMENTS OR TERMS AND CONDITIONS OF USE FOR THEIR
RESPECTIVE SERVICES.
SPRINT SPECTRUM L.P. CONFIDENTIAL INFORMATION Page 4
10. INDEMNIFICATION AND LIMITATION OF LIABILITY
10.1 Indemnification by Sprint PCS. Sprint PCS, at its own expense, will
indemnify and defend Service Provider, Service Provider affiliates, and their
respective directors, officers, agents, and employees (each, a "Service Provider
Indemnitee") from and against all claims, damages, losses, liabilities, costs,
expenses, and reasonable attorney fees (collectively "Damages") arising out of a
claim by a third party against a Service Provider Indemnitee: (i) for injury to
persons (including libel, slander or death) or loss or damage to property, to
the extent resulting from any act or omission of Sprint PCS; or (ii) alleging
that the Sprint PCS Authorized Marks infringe in any manner any copyright,
patent, maskwork right, trade secret, trademark, or trade dress right.
10.2 Indemnification by Service Provider. Service Provider, at its own expense,
will indemnify and defend Sprint PCS, Sprint PCS Affiliates, and their
respective directors, officers, agents, and employees (each, a "Sprint PCS
Indemnitee") from and against all Damages arising out of a claim by a third
party against a Sprint PCS Indemnitee: (i) for injury to persons (including
libel, slander or death) or loss or damage to property, to the extent resulting
from any act or omission of Service Provider; or (ii) alleging that the Service
Provider Services or the Service Provider Brand Marks infringe in any manner any
copyright, patent, maskwork right, trade secret, trademark, or trade dress
right.
10.3 Indemnification Procedures. Promptly, upon becoming aware of any matter
that is subject to the provisions of this Section 10.0 (a "Claim"), the party
seeking indemnification (the "Indemnified Party") must give notice of the Claim
to the other party (the "Indemnifying Party"), accompanied by a copy of any
written documentation regarding the Claim received by the Indemnified Party. The
Indemnifying Party will have the right, at its option, to settle or defend, at
its own expense and with its own counsel, the Claim. The Indemnified Party will
have the right, at its option, to participate in the settlement or defense of
the Claim, with its own counsel and at its own expense, but the Indemnifying
Party will have the right to control the settlement or defense. The Indemnifying
Party will not enter into any settlement that imposes any liability or
obligation on the Indemnified Party, or contains any acknowledgement of
wrongdoing by the Indemnified Party, without the Indemnified Party's prior
written consent. The parties will cooperate in the settlement or defense and
give each other full access to all relevant information. If an Indemnified
Party's ability to provide a service is enjoined due to a claim covered by the
indemnity obligations in this Section, the Indemnifying Party will, at its
option and expense, either: a) procure for the Indemnified Party and the Users
the continued right to use the service; b) replace the infringing material with
non-infringing material that will not adversely affect the operation or quality
of the service; c) modify the infringing material so that it is non-infringing
and will not adversely affect the operation or quality of the service; or d)
only if none of the above options are possible after commercially reasonable
attempts by the Indemnifying Party to complete them, the Indemnifying Party may
terminate this Agreement.
10.4 LIMITATION OF LIABILILTY. EXCEPT FOR A PARTY'S BREACH OF THE PROVISIONS OF
SECTION 6.0 (CONFIDENTIAL INFORMATION) OR FOR CLAIMS FOR WHICH A PARTY HAS AN
OBLIGATION OF INDEMNITY UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO
THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES FOR
ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE. CONSEQUENTIAL,
INCIDENTAL, AND INDIRECT DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS,
LOST REVENUE, AND LOSS OF BUSINESS OPPORTUNITY, WHETHER OR NOT THE APPLICABLE
PARTY WAS AWARE OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE
DAMAGES.
11. SECURITY
Each party will maintain the security and integrity of its service, including
implementing procedures to prevent third parties from transmitting unsolicited
data or messages to Users. Each party will immediately notify the other party if
it knows or has reason to know that any unsolicited data or messages are being
sent to Users, or if an unusual or abnormal flow, number, or type of message is
being sent to Users. If a User is being sent unsolicited data or messages, or
one party notifies the other party that Users may be being sent unsolicited data
or messages, each party will use its best efforts to prevent continuing
transmission of unsolicited data or messages to Users. As necessary, Sprint PCS
will provide a connection to its gateway via a 128-bit secure socket level
connection. As necessary, Service Provider will provide a secure connection to
the Internet to allow access to Service Provider Services by Sprint PCS and
Users.
12. TESTING AND SERVICE RELIABILITY
12.1 Acceptance Testing. Upon receipt of the initial feature set of the Service
Provider Services prior to launch of the Service Provider Services, or any
subsequent Enhancements to the Service Provider Services (for purposes of this
Section, each a "Deliverable"), both parties will test the Deliverable for
compliance with the specifications of the detailed design document provided to
Sprint PCS by Service Provider in accordance with the Sprint PCS Wireless Web
Launch Checklist ("Acceptance Testing"). If a dispute arises regarding testing
criteria, Sprint PCS will make the final determination. Acceptance of any
Deliverable will occur upon the earlier of either: (i) the delivering party's
receipt of a notice from the accepting party that the Deliverable has met the
acceptance criteria; or (ii) 60 days, or other mutually agreeable time period,
after the date of delivery unless written notice of non-acceptance, which
includes specific reasons for non-acceptance and specific items which must
conform to gain acceptance, is provided to the delivering party within the
60-day period. The party with the primary responsibility for the Deliverable (or
the parties together, if jointly responsible) will use commercially reasonable
efforts to correct any non-conformance in a timely manner. The parties will
provide each other with commercially reasonable assistance as necessary to
correct any non-conformance, including, without limitation, information
necessary to allow the correcting party to recreate the error or non-conformity
identified. The parties will work together in good faith to complete Acceptance
Testing in accordance with any applicable development schedule. Upon successful
completion of Acceptance Testing the parties will deliver written notice of
final acceptance to each other.
12.2 Service Reliability. The parties will make commercially reasonable efforts
to ensure that their respective services are free from material defects, and are
available 24 hours a day, 7 days a week to Users. Service Provider and Sprint
PCS agree to maintain their respective services in accordance with the
applicable standards as follows:
A. Trouble Severity Codes for Unplanned Events. Sprint PCS will assign trouble
severities based on Sprint PCS' assessment of trouble at the point of
trouble identification and will adjust based on event activities. The
following trouble severity table will be reviewed quarterly by Sprint PCS
and Service Provider, and may be modified only by mutual written agreement
of both parties.
-------- ------------------------------------------------------------------ -------------
Trouble Description Restoral
Severity Expectations
Code
-------- ------------------------------------------------------------------ -------------
-------- ------------------------------------------------------------------ -------------
Sev1 "Sev 1 Error" means a catastrophic error in the application which 1.5 hours
causes a complete (100%) loss of service for any subset of Users
and for which a workaround has not been made available and which
causes: (i) an important component of the Service Provider
Services to be unusable, a system or product malfunction due to
deficiency or non-usability, and has frequent or major User
impact or there is a frequent failure of an important service; or
(ii) data loss or corruption. Example: 10/8 outage--Users
receiving "bad http status" errors when attempting to connect to
the Service Provider's site.
-------- ------------------------------------------------------------------ -------------
-------- ------------------------------------------------------------------ -------------
Sev2 "Sev 2 Error" means a non-catastrophic error in the application 4.0 hours
that causes greater than 50% degradation of performance and that:
(i) constitutes a major failure for an important product feature
which causes significant inconvenience to Users, system or
product malfunction due to deficiency or non-usability; or (ii)
produces results materially different from those described in the
documentation for a major product feature, but which such error
does not rise to the level of a Sev 1 Error. Example: Users
receiving "compile error" message when attempting to read a news
item.
-------- ------------------------------------------------------------------ -------------
-------- ------------------------------------------------------------------ -------------
Sev3 "Sev3 Error" means a non-catastrophic error in the application 4.0 hours
that: (i) has an impact on operational 8.0 hours support or
administrative tools / availability to service or provision node
but not considered to impact call processing; and (ii) causes
less than 50% degradation of performance
-------- ------------------------------------------------------------------ -------------
-------- ------------------------------------------------------------------ -------------
Sev4 "Sev4 Error" means an error in the application that: (i) has TBD
minimal current impact on the User; and (ii) causes a malfunction (Joint Agreement)
of a non-essential product feature.
-------- ------------------------------------------------------------------ -------------
B. Points of Contact and Escalations
If either party experiences technical problems receiving or transmitting the
other party's service, or receive questions or complaints from Users, that party
may contact the other party's technical service. I. Escalations will occur if
restoral expectations are not met.
II. Service Provider will provide for 24x7x365 support availability.
III. Service Provider will provide continual support through event resolution on
Sev1 Errors.
IV. Service Provider and Sprint PCS IT will exchange ticket numbers for
tracking an event at the initial report of trouble by Sprint PCS IT to
Service Provider.
V. Sprint PCS and Service Provider will exchange escalation contacts and
number as follows:
Service Provider Contact Information (Accessible 24 hours a day / 7 days a week)
----------- --------------- ------------- ------------- -------------- -----------------------
Contact Name & Phone Mobile Pager Email
Title
----------- --------------- ------------- ------------- -------------- -----------------------
----------- --------------- ------------- ------------- -------------- -----------------------
1st Xxxxxxx Xxxxxx 000-000-0000 000-000-0000 xxxxxxxx@xxxxxxx.xxx
Point of Systems Manager ext 310
Contact
----------- --------------- ------------- ------------- -------------- -----------------------
----------- --------------- ------------- ------------- -------------- -----------------------
1st Xxxx Xxxxx 000-000-0000 000-000-0000 xxxxxx@xxxxxxx.xxx
Escalation Program Manager ext 321
----------- --------------- ------------- ------------- -------------- -----------------------
----------- --------------- ------------- ------------- -------------- -----------------------
2nd Xxxxx Xxxxxxxx 000-000-0000 000-000-0000 xxxxxxxxx@xxxxxxx.xxx
Escalation Bus Dev Mgr ext 308
----------- --------------- ------------- ------------- -------------- -----------------------
Sprint PCS Contact Information (Accessible 24 hours a day / 7 days a week)
--------------- ----------------- ---------------- -------------- ------------- -------------------
Contact Name & Phone Mobile Pager Email
Title
--------------- ----------------- ---------------- -------------- ------------- -------------------
--------------- ----------------- ---------------- -------------- ------------- -------------------
1st Application (000) 000-0000
Point of Administration
Contact Help Desk
--------------- ----------------- ---------------- -------------- ------------- -------------------
--------------- ----------------- ---------------- -------------- ------------- -------------------
1st Escalation Primary DSO 000-000-0000
Wireless Web App
Admin on Call
--------------- ----------------- ---------------- -------------- ------------- -------------------
--------------- ----------------- ---------------- -------------- ------------- -------------------
2nd Escalation Secondary DSO 000-000-0000
Wireless Web App
Admin on Call
--------------- ----------------- ---------------- -------------- ------------- -------------------
--------------- ----------------- ---------------- -------------- ------------- -------------------
3rd Escalation Team Lead, DSO 000-000-0000
Wireless Web App
Admin
--------------- ----------------- ---------------- -------------- ------------- -------------------
12.3 Service Provider Provided 3rd Party Handoff. Service Provider will
interface with 3rd party hardware and software vendors selected by it and
included as part of the Service Provider Services. During unplanned events,
Service Provider will interact with these 3rd party vendors for service
restoral activities, and Sprint PCS will only be required to interact with
Service Provider.
12.4 Operational Reviews between Sprint PCS Technical Services and Service
Provider. Operational Reviews will be conducted as needed.
12.5 Network /Application Availability.
(a) Sprint PCS has a corporate initiative to meet or exceed 99.9% element /
node /application availability.
(b) Service Provider agrees to use commercially reasonable efforts to
maintain the Service Provider Services at a minimum 99.9% availability per
month.
12.6 Planned Outages.
(a) Sprint PCS Technical Services Coordination - The standard maintenance
window is 2300 - 0500 CST. Any activities beyond regularly scheduled
maintenance window are considered unplanned outages and will be addressed
per the above table.
(b) Regular -Regular maintenance is defined as routine, scheduled
maintenance. Sprint PCS requires 72-hour notification and approval of
activities prior to maintenance.
(c) Demand - Demand maintenance is defined as maintenance that can wait
until the regularly scheduled maintenance window, but will be given top
priority during that window.
(d) Emergency - Emergency maintenance is defined as maintenance that must
be performed immediately, regardless of time of day / busy hour.
12.7 Additional requirements.
Service Provider will coordinate with Sprint PCS for the installation of
new versions, releases, and fixes to the operating system and system
software, as well as the installation of any new hardware. At least 72
hours notice of these changes must be given to Sprint PCS, and Sprint PCS
will likewise provide 72 notice of a Xxxxx.xxx environment change
(hardware, software version, etc.) to Service Provider.
SPRINT SPECTRUM L.P. CONFIDENTIAL INFORMATION Page 6
13. RECORD KEEPING AND AUDITS
Each party will maintain all records pertaining to its service and all payments
to the other party for a period of at least 1 year after the termination or
expiration of this Agreement. Each party (as applicable, the "Auditing Party")
has the right to direct its internal or external auditors to audit, copy and
inspect the other party's (the "Audited Party") records at reasonable times
during the Initial Term of this Agreement (and during any Renewal Term if
applicable) and for the 1-year period thereafter to verify the correctness of
amounts paid under this Agreement. The Auditing Party will provide the Audited
Party with at least 5 business days' prior notice of an audit. The Audited Party
will make the information reasonably required to conduct the audit available on
a timely basis and assist the Auditing Party and its internal or external
auditors as reasonably necessary. The Audited Party will not be responsible for
the Auditing Party's expenses incurred for an audit, unless the audit discloses
an underpayment in excess of 5% during the period covered by the audit, in which
case the Audited Party will pay for the entire cost of the audit. The Audited
Party will within 10 days after discovery of an underpayment, pay to the
Auditing Party the amount disclosed by the audit together with simple interest,
at 1% per month, for the period of time between the date on which underpayment
occurred and the date on which the Auditing Party was paid. If the audit reveals
an overpayment by the Audited Party in excess of 5% during the period covered by
the audit, the Audited Party will be entitled to credit the overpayment against
further payments due to the Auditing Party, and if no further payments are due,
the Auditing Party will within 10 days after the discovery of the overpayment,
pay to the Audited Party the amount disclosed by the audit together with simple
interest, at 1% per month, for the period of time between the date on which
overpayment occurred and the date on which the Audited Party was paid.
14. DISPUTE RESOLUTION
14.1 WAIVER OF JURY TRIAL. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY
COURT ACTION ARISING AMONG THE PARTIES, WHETHER UNDER THIS AGREEMENT OR
OTHERWISE RELATED TO THIS AGREEMENT, AND WHETHER MADE BY CLAIM, COUNTERCLAIM,
THIRD PARTY CLAIM OR OTHERWISE. THE AGREEMENT OF EACH PARTY TO WAIVE ITS RIGHT
TO A JURY TRIAL WILL BE BINDING ON ITS SUCCESSORS AND ASSIGNS.
14.2 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
ARE GOVERNED BY THE LAWS OF THE STATE OF KANSAS, WITHOUT RAGARD TO ANY CONFLICT
OF LAWS PRINCIPLES. THIS AGREEMENT WILL NOT BE GOVERNED OR INTERPRETED IN ANY
WAY BY REFERRING TO ANY LAW BASED ON THE UNIFORM COMPUNTER INFORMATION
TRANSACATIONS ACTS (UCITA), EVEN IF THAT LAW IS ADOPTED IN KANSAS.
14.3 Forum Selection; Attorney's Fees. Any court proceeding brought by either
party must be brought, as appropriate, in Kansas District Court located in
Xxxxxxx County Kansas, or in the United States District Court for the district
of Kansas in Kansas City, Kansas. Each party agrees to personal jurisdiction in
either court. The prevailing party in any formal dispute will be entitled to
reasonable attorney's fees and costs (including reasonable expert fees and
costs), unless the prevailing party rejected a written settlement offer that
exceeds the prevailing party's recovery. The parties agree to continue
performance during the pendency of any dispute, unless this Agreement is
terminated under Section 5.3.
15. GENERAL
15.1 Notices. Unless otherwise agreed, notices provided under this Agreement
must be in writing and delivered by certified mail (return receipt requested),
hand delivery, or by a reputable overnight carrier service. Notices to Sprint
PCS must be sent to the following addresses: (i) Wireless Data Services, Attn:
Assistant Vice President, 0000 Xxxxxx Xxxx Xxxxxxx, Xxxxxx Xxxx, XX 00000; and
(ii) Sprint Law Department, Attn: General Attorney - Procurement, 0000 Xxxx
Xxxxxxx, Xxxxxx Xxxx, XX 00000. Notices to Service Provider must be sent to the
address shown in the signature block of this Agreement for Service Provider.
Notices will be deemed given on the day the notice is received.
15.2 Assignment. Sprint PCS may assign any of its rights or obligations or this
Agreement to any Sprint PCS Affiliate without the consent of Service Provider.
Otherwise, neither party may assign any of its rights or obligations or this
Agreement without the prior written consent of the other party.
15.3 Waiver; Severability; Remedies. The waiver of a breach of any term or
condition of this Agreement will not constitute the waiver of any other breach
of the same or any other term. To be enforceable, a waiver must be in writing
signed by a duly authorized representative of the waiving party. If any
provision of this Agreement is held to be unenforceable, the remaining
provisions will remain in effect and the parties will negotiate in good faith a
substantively comparable enforceable provision to replace the unenforceable
provision. All rights and remedies of the parties, in law or equity, are
cumulative and may be exercised concurrently or separately. The exercise of one
remedy will not be an election of that remedy to the exclusion of other
remedies.
15.4 Independent Contractor; Non-Exclusive Relationship; Survival. Service
Provider and Service Provider personnel are independent contractors for all
purposes and at all times. This Agreement does not create an exclusive
relationship between the parties except to the extent specifically provided for
in this Agreement. Nothing in this Agreement will be deemed to be a restriction
on either party's ability to freely compete or to enter into "partnering"
relationships with other entities. Numbered provisions 4.2, 6., 7., 8., 9., 10.,
13., 14., and 15.4 will survive the termination or expiration of this Agreement,
in addition to any other provisions that by their content are intended to
survive the performance, termination, or expiration of this Agreement.
15.5 Miscellaneous. This Agreement's benefits do not extend to any third party,
including Sprint PCS customers or Users, unless expressly stated in this
Agreement. The headings in this Agreement are for convenience only and will not
affect the meaning or interpretation of this Agreement. This Agreement will not
be construed against either party due to authorship. This Agreement, together
with any exhibits, sets forth the entire understanding of the parties as to the
subject matter of this Agreement and supersedes all prior agreements,
discussions, and correspondence pertaining to the subject matter of this
Agreement. Any provision contained on a party's web site, preprinted on any
order, invoice, statement, or other document issued by either party, or
contained in any "shrinkwrap" or "clickwrap" agreement will have no force or
effect if that provision conflicts with the terms of this Agreement. This
Agreement may not be amended or modified except in writing signed by a duly
authorized representative of each party. If there is an inconsistency between
the terms of this Agreement and those of any other oral or written agreement
between the parties, the provisions of this Agreement will control.
SPRINT SPECTRUM L.P. CONFIDENTIAL INFORMATION Page 7
