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EXHIBIT 10.35
SERVICE AGREEMENT
This SERVICE AGREEMENT (the "Agreement") is made on February 28, 2001 between
EXTEND INC., a Delaware corporation having its principal place of business at
000 X. Xxxxx Xxx., Xxxxxx, XX 00000 ("Extend") and AELIX, INC., a Delaware
corporation, having its principal place of business at 0000 Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000 ("Aelix").
WHEREAS, Extend has developed a diverse suite of hosted communications
and customer relationship management services; and
WHEREAS, Aelix desires to use such services, principally integrated
voice response and interactive data mining services, in conjunction
with Aelix's message notification business;
NOW THEREFORE, in exchange for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
agree to the following:
1. DESCRIPTION. Extend hereby grants to Aelix, and Aelix accepts, a
non-exclusive, non-transferable license to use Extend's hosted
communications and customer relationship management services for Aelix's
own internal use to support Aelix's message notification service. The
scope and pricing for such services are set forth in the attached
Schedule A. Aelix agrees to restrict use of the services to that number
of concurrent users or servers listed on Schedule A.
2. OWNERSHIP OF INTELLECTUAL PROPERTY. Aelix agrees that ownership of the
intellectual property underlying the services provided by Extend, and
all copies of the underlying computer software or any portion thereof,
rests exclusively with Extend. Except as specifically provided herein,
the license included in this Agreement does not include a grant to Aelix
of any right to engage in any licensable activity with respect to the
property rights, including intellectual property rights, of Extend
and/or its licensors, nor any ownership right, title or interest, nor
any security interest or other interest, in any property right relating
to the products or any derivative works therefrom, nor in any copy of
any part of the products or any derivative works thereof. The products,
and all copyright, patent, trade secret and other intellectual or
proprietary rights therein, shall at all times remain the exclusive
property of Extend and its licensors. Except as, and then only to the
extent expressly permitted in this Agreement, Aelix shall not use,
sublicense, sell assign, transfer, disclose, alter, duplicate,
translate, decompile, disassemble, reverse engineer, create derivative
works from, or recreate or attempt to recreate the products, in whole or
in part, by reference to the original, whether by "clean room" or other
process. Aelix acknowledges that the services (including methods,
concepts or techniques utilized therein) are
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commercially valuable and contain substantial trade secrets. All rights
in and to any changes, revisions, improvements, or "derivative works" to
or based upon the products, will be the exclusive property of Extend.
The intellectual and business property rights in the core technology
comprising the products shall remain with Extend and its licensors. For
purposes of this Agreement, "derivative works" shall mean a work that is
based upon or created with reference to one or more preexisting works,
such as a revision, modification, translation (including compilation or
recapitulation by computer), abridgment, condensation, expansion,
reproduction by reverse engineering or clean room process, or any other
form in which a preexisting work may be recast, transformed, adapted, or
for which the preexisting work is materially used, directly or
indirectly, to facilitate creation of the form, whether or not such
derivative work, if made without authorization by the owner of the
preexisting work, would constitute copyright infringement.
3. WARRANTIES. EXTEND MAKES NO WARRANTIES OR REPRESENTATIONS AND ASSUMES NO
RESPONSIBILITY BEYOND THE PROVISIONS HEREOF. ANY MODIFICATIONS TO
EXTEND'S SOFTWARE WILL VOID THE WARRANTY PROVIDED HEREUNDER. EXTEND
DISCLAIMS ANY AND ALL OTHER WARRANTIES WITH RESPECT TO THE SERVICES
PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4. DAMAGES. Aelix's sole remedy with respect to any hosted or related
application services from Extend that are not in conformity with the
terms of this agreement shall be, at the sole discretion of Extend, to
correct the non-conformity, a replacement thereof or a return of any
funds paid by Aelix for services determined not to be in conformity with
the terms of this agreement.
5. LIMITATION OF LIABILITY. EXTEND SHALL NOT BE LIABLE TO AELIX FOR ANY
INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES OF ANY NATURE, INCLUDING DAMAGES FOR LOSS OR INTERRUPTION OF
BUSINESS, LOST PROFITS, LOSS OF GOODWILL AND LOSS OF DATA, EVEN IF
EXTEND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXTEND AND
ITS AFFILIATES' CUMULATIVE LIABILITY TO AELIX (OR ANY OTHER PARTY
WHATSOEVER) SHALL NOT EXCEED THE AMOUNT PAID BY AELIX TO EXTEND
HEREUNDER. AELIX WILL BE SOLELY RESPONSIBLE FOR ADEQUATE PROTECTION AND
BACKUP OF ITS DATA.
6. FORCE MAJEURE. Neither party shall be responsible for any resulting loss
if the fulfillment of any of the terms or provisions of this agreement,
excepting all obligations to make payments hereunder, is delayed or
prevented by riots, wars, acts of enemies, national emergency, strikes,
floods, fires, acts of God, or by
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any other cause not within the control of the party whose performance is
interfered with which by the exercise of reasonable diligence such party
is unable to prevent, whether or not within the class of causes
enumerated above.
7. TERM. This Agreement shall be effective for three (3) years from the
date hereof. It shall automatically renew for 12-month periods
thereafter, unless either party provides the other notice of
cancellation at least three (3) months prior to any scheduled
termination date. This Agreement may be terminated by either party upon
a material failure of the other party to perform its responsibilities
and obligations hereunder, by the terminating party submitting notice in
writing to the defaulting party of the material failure, provided that
said failure has not been corrected within thirty (30) days of notice
thereof. In no event shall the party duly exercising its right under
this section be liable to the other party or any person or entity
claiming by, through or under such other party for damages of any kind
with respect to such termination, or be precluded by the exercise of
such termination right from pursuing, subject to the terms of this
Agreement and applicable law, any cause of action or other claim it may
then or at any time thereafter have against the other party in respect
of any breach or default by the other party hereunder. In the event of
termination of this Agreement, all licenses granted hereunder shall
terminate. Upon termination, Aelix shall immediately (a) pay all
outstanding amounts due Extend (b) cease all use and copying of the
products, and (c) immediately deliver to Extend all copies of Extend's
software and service materials in Aelix's possession or control or
destroy all of the same, and certify in writing to Extend within five
days after termination that the foregoing actions have been taken. All
provisions of this Agreement which by their own terms take effect upon
the termination of this Agreement or by their nature survive
termination, shall survive such termination.
8. COMPLETE AGREEMENT. This instrument constitutes the sole and entire
agreement between the parties hereto with regard to the subject matter
hereof. No course of prior dealings between the parties and no usage of
the trade shall be relevant or admissible to supplement, explain, or
vary any of the terms of this agreement. Acceptance of, or acquiescence
in, a course of performance rendered under this or any prior agreement
shall not be relevant or admissible to determine the meaning of this
agreement even though the accepting or acquiescing party has knowledge
of the nature of the performance and an opportunity to make objection.
No other representations, understandings, or agreements have been made
or relied upon in the making of this agreement other than those
specifically set forth herein. This agreement can be modified only by an
instrument signed by the parties or their duly authorized agents.
9. APPLICABLE LAW. This agreement shall be governed by laws of the State of
Illinois on the date of this agreement. If any provision of this
Agreement is determined by a court of competent jurisdiction to be in
violation of any
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applicable law or otherwise invalid or unenforceable, such provision
shall to such extent as it shall be determined to be illegal, invalid or
unenforceable under such law be deemed null and void, but this Agreement
shall otherwise remain in full force.
10. If any dispute arising out of this Agreement is arbitrated or litigated
between the parties, the prevailing party shall be entitled to recover
its reasonable attorneys' fees in addition to any other relief to which
it may be entitled.
11. This Agreement and all licenses and rights granted to Aelix hereunder
shall not be transferable or assignable by Aelix whether voluntarily or
by operation of law or otherwise, without Extend's prior written
consent. This Agreement shall be binding upon, and inure to the benefit
of and be enforceable by, the parties and their respective successors
and permitted assigns.
12. Any modification or amendment of any provision of this Agreement must be
in writing and bear the signature of the duly authorized representatives
of both parties. The failure of any party to enforce any right it is
granted herein or to require performance by the other party of any
provision of this Agreement or the waiver by any party of any breach of
this Agreement shall not prevent a subsequent exercise or enforcement of
such provisions or be deemed a waiver of any subsequent breach.
13. The relationship of the parties is that of independent contractors.
Neither party shall have, and neither party shall represent that it has,
any power, right or authority to bind the other party, or to assume or
create any obligation or responsibility, express or implied, on behalf
of the other party, except as herein expressly permitted.
Corporate Seal EXTEND, INC.
Attest:
/s/ Xxxxxxx X. XxXxxx by /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------- ----------------------------------------------
Secretary
Corporate Seal AELIX, INC.
Attest:
/s/ Xxxxxxx X. Xxxxxxxx by Xxxxxx X. Xxxxx, Xx.
------------------------------------------- ----------------------------------------------
Secretary
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SCHEDULE A TO SERVICE AGREEMENT DATED FEBRUARY 28, 2001 BETWEEN
EXTEND, INC. AND AELIX, INC.
SCOPE OF SERVICES
Integrated voice response services
Interactive data mining
MAXIMUM NUMBER OF USERS
No limit.
PRICING
$0.046 per minute (whether a whole minute or any fraction thereof).
Amounts payable by Aelix are payable within thirty (30) days of
submission of monthly invoices by Extend. Extend shall be entitled to
receive interest for all amounts not paid when due, with such interest
accruing at 18% p.a. from the due date until the date of actual payment.
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