WIRELESS DATA AGREEMENT
Exhibit
10.1
EXECUTED
COPY
This
Wireless
Data Agreement
(“Agreement”) is effective as of February 5, 2007 (“Effective Date”), between
Sprint/United
Management Company,
a
Kansas corporation and wholly owned subsidiary of Sprint Nextel Corporation
with
offices at 0000 Xxxxxx Xxxxxxx, Xxxxxxxx Xxxx, XX 00000 (“Sprint”) and
UpSnap,
Inc.,
a
Nevada corporation with offices at 000 Xxxxxxx Xx., Xxxxx 000-000, Xxxxxxxx,
XX
00000 (“Service Provider”). The
parties desire to provide Service Provider Services as part of the Sprint
Services. Sprint and Service Provider are parties to that certain Nextel
Online
Handset Placement Agreement (the “Original Agreement”) dated October 15, 2001;
Amendment No. 1 dated February 11, 2002; Amendment No. 2 dated October 10,
2003;
Amendment No. 3 dated 2004 and Amendment No. 4 dated July 21, 2004
(collectively, the “Agreement”). Effective as of the date of this Agreement, the
Original Agreement and all subsequent Amendments to the Original Agreement
are
hereby terminated and replaced by this Agreement.
1.
DEFINITIONS
The
following definitions apply to this Agreement. Depending on the Services
provided by Service Provider, some definitions may not be utilized in the
body
of the Agreement:
“Adjustment”
means a
refund or reduction to a charge for Premium Services made by Xxxxxx at a
User’s
request based on performance or other issues arising from the Premium Services.
Only Xxxxxx is authorized to make Adjustments to Premium Services
charges.
“Billed
Revenue”
is
defined as the charges, consistent with Section
4.3,
that
Xxxxxx invoices to Users (excluding any applicable transaction taxes) for
the
use of Premium Services net of all Adjustments.
“Xxxxxx”
means
Sprint, or as applicable, its billing agent, the Sprint Affiliates or Sprint’s
private label customers who may invoice Users for the use of Premium
Services.
“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.
“Enhancement”
means
any
change, modification, update or enhancement to the Service Provider
Services.
“Device”
means
the
digital electronic equipment meeting the requirements of and authorized by
Sprint for Users to access any of the various Sprint Services, that (i) is
compliant with the CDMA 2000 standard as implemented by Sprint, or any successor
standard as implemented by Sprint and (ii) may, but is not required to, include
a Sprint Media Player.
“Download”
means
a
successful transmission of a Premium Service across the Sprint Wireless Network
to a designated Device.
“Marks”
means
a
party’s trademarks, trade names, service marks and iconography.
“Other
Services” means
services transmitted to Users via the Sprint Wireless Network and that charge
Users a fee but that do not utilize Sprint's billing on behalf of
functionality.
“Premium
Services” means
certain Sprint-approved services provided by Service Provider to Users and
for
which Users are invoiced a fee by Xxxxxx on behalf of Service Provider,
including (if applicable) Java Application, Games, Images, Ringers, and Service
Provider Channel.
“Proprietary
Programs”
means
Sprint’s proprietary encryption or decryption modules, libraries or other
scripts or programs of any kind.
“Representative”
means
each party’s primary point of contact for purposes of supervising and managing
performance of the respective party’s obligations under this
Agreement.
“Retail
Price” means
the
price charged by Sprint for a User’s Download of an Image or Ringer, less any
Adjustment.
“Security
Standards” means
commercially reasonable security features in all material hardware and software
systems and platforms that Service Provider uses to access Sprint’s Confidential
Information.
“Service
Provider Data”
means
all information collected or developed by Service Provider regarding its
customers who are Users or derived specifically from a User’s use of the Service
Provider Services or otherwise provided directly to Service Provider by Users.
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“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 Users via transmission by Sprint, including any Enhancements,
Premium Services, and Other Services.
“Sprint
Affiliate”
means:
(a) any entity controlling, controlled by or under common control with Sprint,
directly or indirectly by or through one or more intermediaries; (b)
any
entity that has entered into an agreement to construct, manage and maintain
the
Sprint Wireless Network in a defined geographical territory and to
sell
wireless communications products or services in that territory under the
“Sprint” brand name or any other brand name(s) subsequently primarily used by
Sprint to market its wireless communications products or services; or (c)
any
entity to which Sprint is required by law or contract to provide wireless
communications products or services involving the Service Provider Services.
“Sprint
Data”
means
all information collected or developed by Sprint regarding its customers
who are
Users under this Agreement or derived specifically from a User’s use of the
Sprint Services or the Sprint Wireless Network, including, but not limited
to,
the Mobile Identification Number (MIN) or Mobile Destination Number (MDN)
issued
by
Sprint to a User,
the
Electronic Serial Number (ESN) associated with a Device, the Network Access
Identifier (NAI), any location-based information, network presence, NGG logs,
transaction records, vending machine meta data that relates to data usage
or
premium services purchases, and any customer information described in the
FCC
definition of “Customer Proprietary Network Information” as set forth in 47 USC
222(h)(1).
“Sprint
Services”
means
the wireless data services provided by Sprint, on behalf of itself or the
Sprint
Affiliates or both, utilizing radio frequencies assigned by regulatory agencies.
“Sprint
Wireless Network” means
any
and all telecommunications systems built, owned or operated by Sprint or
any of
the Sprint Affiliates.
“Uncollectible
Revenue”
is
defined as total Billed Revenue that is uncollected and past due, and includes
bad debts, fraudulent charges, short payments by Users, and other payment
shortfalls and delinquencies.
“User”
means
any individual who uses any of the Sprint Services.
“Vault”
means
a
virtual location within Sprint’s server architecture where Sprint stores a
User’s purchased content.
2.
TERM
2.1
Term.
The 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 month-to-month basis until terminated by either
party with a sixty (60) days prior written notice (each monthly period a
“Renewal Term”). The Initial Term and any Renewal Term are collectively referred
to as the “Term”.
2.2
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 twenty (20) days after
written notice of the breach. Unless otherwise provided in the notice, or
unless
the breach has been cured, the termination is effective twenty (20) days
after
the date of the notice.
2.3
Effect
of Termination.
Following any termination or expiration of this Agreement, the parties will
cooperate to ensure that Users have the ability to continue to access, in
accordance with the terms of this Agreement, previously purchased Service
Provider Services for a period of time that is equal to the license period
associated with such Service Provider Services. Sections
5, 6.2, 7, 8, 9, 12
and this
Section
2.3 will
survive the termination or expiration of this Agreement, in addition to any
other provisions that by their content are intended to survive the expiration
of
this Agreement.
3.
SERVICES
3.1 Scope
of Services.
Service
Provider shall enter into an agreement (the “Content Provider Agreement”) with a
third-party content provider (“Content Provider”) upon terms and conditions to
be mutually agreed upon by Service Provider and Content Provider, pursuant
to
which Content Provider shall provide to Service Provider a certain
NASCAR-related audio service (the “NASCAR Audio Service”, which, for purposes of
this Agreement, shall be considered Service Provider Services), which Service
Provider shall make available to Users with Devices via transmission by Sprint
across the Sprint Wireless Network. Service Provider may make Enhancements
if:
(a) the Enhancement complies with all requirements in this Agreement; and
(b)
the Service Provider Services continue to include the minimum applications
described below. The Service Provider Services for Devices will be provided
in
formats as may be required by Sprint as specified in the Sprint Style Guide
or
as may be developed by Service Provider and approved by Sprint during the
Term. The
Service Provider Services will include, at a minimum, the following
applications:
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· “NASCAR
Audio Service”
provides
Users with access to NASCAR In-Car Audio.
3.2
Premium
Services.
Premium
Services may not be available on all Devices. In addition, Premium Services
will
not be provided for any electronic commerce or other non-content applications
or
transactions (e.g., the purchase of a tangible product). To qualify to provide
Premium Services, Service Provider must provide all of the information required
on Exhibit
A.
Initial
purchase of premium content is through Sprint’s vending machine, and requires
that Sprint host the appropriate application. Service Provider will host
any
necessary content updates or refreshes as required in the normal operation
of
the Service Provider Services. Xxxxxx reserves the right, in its sole
discretion, to not allow certain Users to receive Premium Services and to
set
limits on the amount of Premium Services Users can use.
3.3
Placement.
Sprint
will place a link to the Service Provider Services within the Sprint Services
during the Initial Term. Actual
placement of this link will be in Sprint’s discretion. The link may be moved or
repositioned at any time in Sprint’s discretion, and may be otherwise moved or
removed by Users as part of any personalization functionality. Sprint has
relationships with other providers (“Resale Partner”) for the resale of Sprint
PCS services . Under those agreements, Resale Partner may be reselling wireless
content to its customers. Service Provider acknowledges that the wireless
content resold by Resale Partner may include Service Provider Services. In
such
instances Service Provider will: (1) allow Resale Partner’s customers to access
Service Provider Services through Sprint PCS Network; and (2) allow Resale
Partner to xxxx its customers for Service Provider Premium Services and use
Service Provider’s name on its customer invoices.
3.4
Technical
Requirements.
Sprint
will register Service Provider on Sprint’s content manager website at
xxxx://xxxxxxxxx.xxxxxx.xxx
for
account registration purposes. Sprint will provide technical documentation
to
Service Provider with system requirements for the design, style and other
aspects of the Service Provider Services, and Service Provider will adhere
to
the technical documentation, which may be updated or changed by Sprint during
the Term.
3.5
User
Support.
Sprint
may establish terms with Users for use of the Sprint Services, which may
include
terms for the use of Premium Services. Sprint is responsible for all User
support relating to the Sprint Services and the Sprint Wireless Network.
Service
Provider is responsible for all User support issues relating to Service Provider
Services. Service
Provider will appropriately refer all User questions and inquiries regarding
Sprint or the Sprint Services to Sprint’s Customer Solutions unit. The
parties will reasonably cooperate with each other to provide necessary User
support services. Service Provider’s toll free phone number, email address,
and/or Internet URL (that links directly to a help desk location) for User
referrals is as follows: xxxx://xxx.xxxxxx.xxx/xxxxxxx.xxx.
3.6
User
Complaints.
Service
Provider will cooperate with Sprint to resolve User complaints. Sprint reserves
the right to suspend Service Provider’s ability to provide Premium Services if:
(a) for any two out of three consecutive months, the number of complaints
Sprint
receives regarding charges for Premium Services exceeds 5% of all the complaints
Sprint receives related to charges for all services with billing on behalf
of
functionality provided by Sprint; or (b) Sprint reasonably believes unauthorized
charges for Premium Services are being presented to it by Service Provider.
Sprint will allow Service Provider to resume providing Premium Services if
Sprint determines that the problems underlying the complaints or unauthorized
charges have been resolved. In addition, the parties will comply with any
other
existing or future regulatory obligations that apply to this Agreement or
the
relationship between the parties.
3.7
Representatives.
The
parties designate the following Representatives: xxxxxxxxxxxxx for Service
Provider. Each party may change its Representative by providing notice to
the
other party. 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 those issues. The Representatives will
hold conference calls on a mutually agreeable basis, and may contact each
other
on an as-needed basis.
3.8
Content
Standards.
Materials
that are included in the Service Provider Services will not: (a) facilitate
or
promote illegal activity, or contain content that is illegal; (b) contain
content that is defamatory, obscene, distasteful, racially or ethnically
offensive, harassing, or that is discriminatory based upon race, gender,
color,
creed, age, sexual orientation, or disability; (c) contain sexually suggestive
or explicit content; (d) infringe upon or violate any right of any third
party;
or (e) disparage, defame, or discredit Sprint or any Sprint Affiliate, or
contain content that is derogatory, detrimental, or reflects unfavorably
on the
name or business reputation of Sprint or any Sprint Affiliate. Subsections
(a)
through (e) above are collectively referred to as the “Content Standards.” If at
any time Sprint determines that Service Provider has violated any of the
Content
Standards, Sprint may temporarily suspend the Service Provider Services.
Sprint
will notify Service Provider of the suspension in writing or via e-mail and
Service Provider must cure the violation within 3 business days (the “Cure
Period”) after this notification by removing the portion of the Service Provider
Services that violates the Content Standards. If Service Provider reasonably
disputes Sprint’s determination of a Content Standards violation, the parties
will confer in good faith and attempt to resolve the dispute during the Cure
Period, but in all cases Sprint will make the final determination. Sprint
may
continue the suspension of the Service Provider Services during the Cure
Period.
If Service Provider fails to cure the Content Standards violation within
the
Cure Period, Sprint may, without further notice, immediately terminate this
Agreement.
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Service
Provider will promptly notify Sprint if it: (a) receives a complaint from
a User
that involves any of the prohibitions in the Content Standards; or (b) otherwise
becomes aware of an alleged Content Standards violation. Sprint also reserves
the right to review materials before they are included as part of the Service
Provider Services to determine if they violate the Content Standards. If
during
this review Sprint determines in its sole discretion that any materials violate
any of the Content Standards, Sprint will notify Service Provider and Service
Provider will remove the violating materials before the Service Provider
Services will be transmitted to Users. Service Provider will not, and will
not
assist any third party to, make fraudulent charges for Service Provider
Services, mislead Users concerning Service Provider Services, or misrepresent
the nature of Service Provider Services to Users. Sprint reserves the right
to
suspend Service Provider Services if Sprint determines that any Service Provider
Services are fraudulent, misleading to Users, or being misrepresented to
Users.
3.9
Network
Management and Operation.
Sprint
may temporarily suspend the Service Provider Services as Sprint deems necessary
in the normal management and operation of the Sprint Wireless Network. If
Sprint
temporarily suspends under this Section
3.9,
it will
insert a ‘card’ notifying Users that the Service Provider Services are
temporarily unavailable.
3.10
Operating
Changes.
If
Sprint allows Service Provider to participate in certain advanced services
(e.g., instant messaging, location based services), Service Provider will
work
with Sprint to adhere to applicable and Sprint specified standards, requirements
and any other technical specifications. Service
Provider will coordinate with Sprint for the installation of new versions,
releases, and fixes to its operating system, system software and
hardware.
4.
PAYMENTS
AND FEES
See
Exhibit B.
5.
CONFIDENTIAL
INFORMATION
5.1
General.
Each
party acknowledges that while performing its obligations under this Agreement
it
may have access to the other party’s Confidential Information. Each party agrees
to: (a) keep the terms of this Agreement and the other party’s Confidential
Information confidential and, except as authorized by the other party in
writing, only use, and make copies of, the other party’s Confidential
Information to perform the Services or its obligations as required under
this
Agreement; (b) only
disclose the other party’s Confidential Information to its personnel, including
its affiliates, subcontractors and agents, who have a legitimate business
need
to know the Confidential Information in order to perform the party’s obligations
under this Agreement; and (c) inform its personnel who will have access to
the
other party’s Confidential Information of the obligations of confidentiality and
require its personnel to comply with the terms of this Agreement. 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.
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
5.
5.2 Exceptions;
Injunctive Relief. Confidential
Information does not include information that the receiving party can
demonstrate by written documentation: (a) is rightfully known to the receiving
party prior to negotiations leading to this Agreement; (b) was independently
developed by the receiving party without any reliance on Confidential
Information; (c) is part of the public domain; or (d) is lawfully obtained
by
the receiving party from a third party not under an obligation of
confidentiality. The receiving party may disclose Confidential Information
to
the extent required by law if it gives the disclosing party prior written
notice
of the required disclosure and makes a reasonable effort to obtain a protective
order. Both parties acknowledge that disclosure of Confidential Information
by
the receiving party may 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
5.
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5.3
Information Security.
| a. |
To
protect Sprint’s Confidential Information from unauthorized use, including
disclosure, loss or alteration, Service Provider will (i) meet the
Security Standards and (ii) inventory and test its compliance with
the
Security Standards before accepting Sprint’s Confidential
Information.
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| b. |
Upon
Sprint’s reasonable request, Service Provider will provide information to
Sprint to enable Sprint to determine compliance with Section
5.3(a).
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| c. |
Service
Provider will promptly inform Sprint of any known or suspected compromises
of Sprint’s Confidential Information as a result of Service Provider’s
failure to comply with the Security Standards.
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| d. |
On
a periodic basis, but in no event more than twice in any 12-month
period,
Sprint may, upon 10 days notice, perform a vulnerability assessment
to
determine Service Provider’s compliance with the Security Standards. In
addition, if Sprint has a reasonable basis to believe that Supplier
has
breached or is likely to breach the Security Standards, Sprint may,
upon 5
days notice, perform a vulnerability assessment.
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| e. |
At
Sprint’s reasonable request, Service Provider will promptly cooperate with
Sprint to develop a plan to protect Sprint’s Confidential Information from
failures or attacks on the Security Standards, which plan will include
prioritization of recovery efforts, identification of and implementation
plans for alternative data centers or other storage sites and backup
capabilities.
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| f. |
If
Service Provider fails to meet the obligations in this Section
5.3,
Sprint will notify Service Provider of this failure as provided in
this
Agreement. Service provider will have 30 days from receiving that
notice
to correct the cause for such failure. If Service Provider has failed
to
remedy its failure within this 30-day period, Sprint has the right
to
terminate this Agreement.
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5.4
Proprietary
Programs. If
Sprint
provides Service Provider with any Proprietary Programs, Service Provider
agrees
not to copy, distribute, modify, adapt, translate, de-compile, reverse engineer
or otherwise create any derivative works from the Proprietary Programs. The
Proprietary Programs may only be used by Service Provider to technically
permit
notification functionalities under this Agreement. Service Provider must
hold
the Proprietary Programs confidential under the terms of this Section
5.
5.5
Publicity.
Neither
party will 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 without the written consent of the other
party. Either party may, in its sole discretion, withhold its consent to
any
publicity.
6.
GRANT
OF LICENSES AND RIGHTS
6.1
General
License
Grant. Service
Provider
grants
Sprint and Sprint Affiliates a non-exclusive, non-transferable (with no right
to
sub-license except as provided in this Agreement) license to reproduce, display,
perform, host, copy, offer, store, distribute, transmit, use, sell and exercise
any other rights reasonably necessary, to provide and download the Service
Provider Services, in any current or future xxxx-up language or format, as
necessary to enable Users to preview, access and utilize the Service Provider
Services on the Device.
The
Sprint Wireless Network may modify the technical and visual format of the
Service Provider Services as necessary to ensure that they can be displayed
on a
Device including, but not limited to, converting HDML or WML language to
XHTML
language and not delivering portions of the Service Provider Services that
fail
to reasonably render on any particular Device. Other than as set forth in
the
immediately preceding sentence, Sprint will not alter the material included
in
the Service Provider Services. Service Provider acknowledges that User’s have a
perpetual, royalty-free license to continue to use and access Service Provider
Services after they have been downloaded from Service Provider, unless the
Service Provider Service was expressly sold as a limited duration application.
Sprint 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’s internal
marketing research purposes.
6.2
Use
of Marks.
Each
party grants to the other party a limited, non-exclusive, non-transferable
license, with no right to sub-license, to use its Marks in the United States
solely in connection with the services under this Agreement and in accordance
with this Section
6.2.
Each
party agrees that its use of the other party’s Marks: (i) will comply with the
other party’s identity standards, which the other party will provide; (ii) must
be presented to the other party and receive written approval prior to any
use;
and (iii) will inure to the benefit of the other party. The Marks are
proprietary and nothing in this Agreement constitutes the grant of a general
license for their use. Neither party acquires any right, title or interest
in
the other party’s Marks or the goodwill associated therewith. Each party agrees
not to (i) attack the other party’s Marks, nor assist anyone in attacking them,
and (ii) make any application to register the other party’s Marks, nor to use
any confusingly similar trademark, service xxxx, trade name, iconography,
or
derivation thereof including, but not limited to, the registration of any
domain
name including any of the other party’s Marks, during the term of this Agreement
and thereafter.
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6.3
Marketing
Materials. Sprint
may wish to include Service Provider’s name, logos, or a description of Service
Provider Services in certain marketing materials including collateral sent
to
Users, retail displays, or other advertising and promotional activities.
These
uses of Service Provider’s name, logos, or description will require Service
Provider’s prior written approval.
6.4 Service
Provider
Marketing. Service Provider agrees to market the availability of the Service
Provider Services, including in the following manner: xxx.xxxxxx.xxx,
xxx.xxxxxx.xxx,
text
ads for free services utilizing upsnap’s short code 27627, text message
campaigns to IDEN opt-in users. Any use of the Sprint Marks in any marketing
by
Service Provider requires Sprint’s prior written approval.
7.
OWNERSHIP
AND USE
OF DATA
7.1
Service
Provider Ownership. Each
party acknowledges and agrees that Service Provider owns the Service Provider
Marks, Service Provider Data, and Service Provider Services (excluding third
party content and services in the Service Provider Services), and except
for the
licenses in this Agreement, nothing in this Agreement confers in Sprint any
right of ownership in the foregoing.
7.2
Sprint
Ownership. Each
party acknowledges and agrees that Sprint owns the Sprint Marks, Sprint Data,
the Sprint Wireless Network, and the Sprint Services (excluding third party
content and services in the Sprint Services), and except for the licenses
in
this Agreement, nothing in this Agreement confers in Service Provider any
right
of ownership in the foregoing.
7.3
Rights
and Limitations. All
Sprint Data is Confidential Information and is the exclusive property of
Sprint.
Service Provider will not, except as otherwise stated in this Agreement,
store,
copy, analyze, monitor, or otherwise use any Sprint Data. All Service Provider
Data is Confidential Information and is the exclusive property of Service
Provider. Sprint 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: (a) Service Provider from using Service
Provider Data to communicate directly with Users of Service Provider Services;
or (b) Sprint or Sprint Affiliates from using Sprint Data to communicate
directly with Users.
7.4
Solicitation;
Disclosure.
Service
Provider will not transmit “spam” or distribute any other unsolicited
information unless the User provides prior express consent via the Device
and
will not contact Users via other means, including, but not limited to
telemarketing, unless User and Sprint consent. Service Provider will not
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 Sprint
Services. Service Provider will not take any action, including data mining
or
any similarly disruptive practice, that interferes with the development,
operation, maintenance or content of Sprint’s websites, servers or other related
equipment. 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 an end user of a Service Provider product or service
or
of the Sprint Services, except as may be required by law or legal
process.
8.
WARRANTIES
AND DISCLAIMERS
8.1 Warranties.
Service
Provider represents and warrants that all hardware, software and networks
used
by Service Provider to fulfill its obligations under this Agreement will:
(a) to
the extent its hardware, software or networks depend on a date processing
function, 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
(b)
to the extent its 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.
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. Service Provider
also
represents and warrants that: (a) it will not introduce into Sprint’s hardware,
software, or network any software virus, worm, “back door,” “Trojan Horse,” or
similar harmful code; (b) the Service Provider Services do not infringe any
intellectual property right or violate any trade secret right or other right
of
any third party; and (c) it will comply with all applicable laws and
regulations.
8.2
Disclaimers.
Except as expressly set forth in this Agreement, each party’s services,
information, content and other materials are provided on an “as is,” “as
available” basis. Except for the express warranties made in this Agreement: (a)
neither party makes any warranty that its service will be uninterrupted,
secure,
or error free, or that defects in either party’s service will be corrected; and
(b) 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,
non-infringement or any implied warranties arising from course of dealing
or
performance. 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 of that service. 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.
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9.
INDEMNIFICATION
AND LIMITATION OF LIABILITY
9.1
Indemnification
by Sprint. Sprint
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’s fees (collectively “Damages”) arising
out of a claim by a third party against a Service Provider Indemnitee:
(a) to
the
extent resulting from or alleged to have resulted from any act or omission
of
Sprint under or related to this Agreement;
or (b)
alleging that the Sprint Marks infringe any intellectual property right or
violate any trade secret right or other right of any third party.
9.2
Indemnification
by Service Provider.
Service
Provider will indemnify and defend Sprint, Sprint
Affiliates, and their respective directors, officers, agents, employees and
customers (each, a “Sprint Indemnitee”) from and against all Damages
arising
out of a claim by a third party against a Sprint Indemnitee: (a) to
the
extent resulting from or alleged to have resulted from any act or omission
of
Service Provider under or related to this Agreement;
or (b)
alleging that the Service Provider Marks or the Service Provider Services
infringe any intellectual property right or violate any trade secret right
or
other right of any third party.
9.3
Indemnification
Procedures.
Upon
becoming aware of any matter that is subject to the provisions of this Section
9. (a “Claim”), the party seeking indemnification (the “Indemnified Party”) must
promptly 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 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 9, the Indemnifying
Party
will, at its option and expense, and in addition to any other remedies that
the
Indemnified Party may have, 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,
either party may terminate this Agreement.
9.4
Limitation
of Liability. Except for a party’s breach of the provisions of Section 5, for
claims for which a party has an obligation of indemnity under this Agreement
and
for a party’s grossly negligent, willful or fraudulent acts or omissions,
neither party will be liable to the other for any consequential, punitive
or
indirect damages for any cause of action, whether in contract, tort or
otherwise. Consequential, 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.
10.
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. Service Provider will notify Sprint as soon as
possible if it knows or has reason to know that any unsolicited data or messages
are being sent to Users of the Service Provider Services, 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 Service Provider notifies Sprint
that Users may be being sent unsolicited data or messages, each party will
use
commercially reasonable efforts to promptly prevent continuing transmission
of
unsolicited data or messages to Users. As necessary, Sprint 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 and Users.
11. TESTING
AND SERVICE RELIABILITY
11.1
Acceptance
Testing. Prior
to
launch of the Service Provider Services or any material Enhancements to Users
(for purposes of this Section 11, each a “Deliverable”), both parties will test
the Deliverable for compliance with Sprint’s launch checklist. If a dispute
arises regarding testing criteria, Sprint will make the final determination.
Acceptance of any Deliverable will occur upon the earlier of either: (a)
Service
Provider’s receipt of a notice from Sprint stating that the Deliverable has met
the testing criteria; or (b) 60 days, or other mutually agreeable time period,
after the date of delivery, unless notice of non-acceptance (including specific
reasons for non-acceptance) is provided to Service Provider within the 60-day
period. Service Provider 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 information necessary to recreate the error or non-conformity
identified. The parties will work together in good faith to complete acceptance
testing according to any applicable development schedule. Upon
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successful
completion of acceptance testing the parties will notify each other of final
acceptance.
11.2
Service
Reliability.
The
parties will make commercially reasonable efforts to ensure that their
respective services under this Agreement are free from material defects and
are
available to Users 24 hours a day, 7 days a week. Service Provider will maintain
the Service Provider Services according to the restoral expectations set
forth
in the table below. For unplanned events, Sprint will assign a trouble severity
code based on Sprint’s assessment of trouble at the point of trouble
identification. Sprint will make adjustments to the trouble severity code
based
on event activities. Sprint Technical Services and Service Provider will
conduct
Operational Reviews as needed. The parties will periodically review the trouble
severity table and may modify it by mutual written agreement.
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Trouble
Severity Code
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Description
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Restoral
Expectations
|
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Sev
1
|
“Sev
1 Error” means
a catastrophic error in an application which causes a complete
(100%) loss
of service for any subset of Users, for which a workaround has
not been
made available and which causes: (a) an important component of
the Service
Provider Services to be unusable or a system or product malfunction
due to
deficiency or non-usability (i.e. a frequent or major User impact
or a
frequent failure of an important service); or (b) data loss or
corruption.
Example: 10/8 outage -- Users receiving “bad http status” errors when
attempting to connect to Service Provider’s site.
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1.5
hours
|
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Sev
2
|
“Sev
2 Error”
means a non-catastrophic error in an application that causes
greater than
50% degradation of performance and that: (a) 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 (b) 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.
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4.0
hours
|
|
Sev
3
|
“Sev
3 Error”
means a non-catastrophic error in an application that: (a) has
an impact
on operational support or administrative tools / availability
to service
or provision node but not considered to impact call processing;
and (b)
causes less than 50% degradation of performance
|
8.0
hours
|
|
Sev
4
|
“Sev
4 Error” means
an error in an application that: (a) has minimal current impact
on the
User; and (b) causes a malfunction of a non-essential product
feature.
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XXX
(Xxxxx Xxxxxxxxx)
|
00.0
Xxxxxx
xx Xxxxxxx and Escalations.
If
Sprint experiences technical problems receiving or transmitting the Service
Provider Services, Sprint may contact Service Provider’s technical service
group. Escalations will occur if applicable restoral expectations are not
met.
Service Provider will provide for 24x7x365 support availability. For Sev
1
Errors, Service Provider will provide continual support until the event is
resolved. Service Provider and Sprint’s Text Messaging Operations department
will exchange ticket numbers for tracking an event beginning with the initial
report of trouble. Service Provider will interface with any third 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
third party vendors for service restoral activities; Sprint will only be
required to interact with Service Provider. Sprint and Service Provider
escalation contacts and numbers are as follows:
Service
Provider Contact Information (Accessible 24 hours a day / 7 days a
week)
|
Contact
Name & Title
|
Phone
|
Mobile
or Pager
|
Email
|
|
|
1st
Point
of Contact
|
On
Call Support
|
xxxxxxxx
|
xxxxxxxx
|
xxxxxxx@xxxxxx.xxx
|
|
1st
Escalation
|
xxxxxxxxxx
|
xxxxxxxxxx
|
xxxxxxxxx
|
xxxxxxx
|
|
2nd
Escalation
|
xxxxxxxxx
|
xxxxxxxx
|
xxxxxxxx
|
xxxxxxxxx
|
Sprint
Contact Information (Accessible
24 hours a day / 7 days a week)
For
browsable content:
|
Contact
Name & Title
|
Phone
|
Mobile
or Pager
|
Email
|
|
|
1st
Point
of Contact
|
xxxxxxxxx.
|
xxxxxx
|
N/A
|
N/A
|
|
1st
Escalation
|
xxxxxxxxx
|
xxxxxxxx
|
xxxxxxxxxxx
|
xxxxxxxxx
|
|
2nd
Escalation
|
xxxxxxxxx
|
xxxxxxx
|
xxxxxxxxxx
|
xxxxxxxxxxx
|
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For
downloadable content (i.e. Premium Services):
|
Contact
Name & Title
|
Phone
|
Mobile
or Pager
|
Email
|
|
|
1st
Point
of Contact
|
xxxxxxxxxxx
|
xxxxxxxxx
|
xxxxxx
|
xxxxxxxxx
|
|
1st
Escalation
|
xxxxxxxxxxxxx
|
xxxxxxxx
|
xxxxxx
|
xxxxxxx
|
|
2nd
Escalation
|
xxxxxxxx
|
xxxxxxxxx
|
xxxxxxxx
|
xxxxxxxxxxxx
|
12.
DISPUTE
RESOLUTION
12.1
Waiver
of Jury Trial.
Each party waives its right to a jury trial in any court action arising between
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.
12.2
Governing
Law. This Agreement and the rights and obligations of the parties are governed
by the substantive and procedural laws of the state of Kansas, without regard
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 Computer
Information Transactions Act (UCITA), even if that law is adopted in Kansas.
The
parties expressly acknowledge that the United Nations Convention on Contracts
for the International Sale of Goods (UNCISG) does not apply to this
Agreement.
12.3
Forum
Selection; Attorney’s Fees.
Except to the extent necessary for Sprint to enforce indemnity or defense
obligations under this Agreement, 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
2.3.
13.
GENERAL
13.1
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. In addition to providing notices to
the
Representatives listed in Section 2.6, notices to Sprint must be sent to
the
following addresses: (a) Sprint
, Attn:
Vice President, Business Development and Product Innovation, Mailstop
KSOPHI0414-4A175,
0000
Xxxxxx Xxxxxxx,
Xxxxxxxx
Xxxx, Xxxxxx
00000;
and (b)
Sprint Law Department, Attn: VP Marketing and Sales, Mailstop KSOPHN0304,
0000
Xxxxxx Xxxxxxx,
Xxxxxxxx
Xxxx, Xxxxxx
00000. Notices
to Service Provider must be sent to Service Provider’s address shown in the
signature block of this Agreement. Notices
will be considered given on the day the notice is received.
13.2
Assignment.
Sprint
may assign any
of
its rights or obligations or this
Agreement to any Sprint 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, which consent will
not be
unreasonably withheld or delayed.
13.3
Waiver;
Severability; Remedies.
The
waiver of a breach of any term 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 an 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.
13.4 Independent
Contractor; Non-Exclusive Relationship.
Service
Provider and its 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.
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13.5
Miscellaneous.
This
Agreement’s benefits do not extend to any third party, including Sprint
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. Because the parties actively negotiated
this
Agreement, it 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 an
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 terms of this Agreement will control.
SIGNED:
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Sprint
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Service
Provider
|
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Signature:/s/
|
Signature:/s/
|
|
Print
Name:
|
Print
Name:
|
|
Title:
|
Title:
|
|
Date:
|
Date:
|
|
Address:
|
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Exhibit
Omitted
{
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