AMENDED AND RESTATED
LICENSE, HOSTING AND SERVICES AGREEMENT
This AMENDED AND RESTATED LICENSE, HOSTING AND SERVICES AGREEMENT
("Agreement") is entered into to be effective as of January 29, 2007 ("the
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Effective Date") by and between RazorStream, LLC, a Nevada limited liability
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company located at 0000 Xxxx Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000
("RazorStream"), and VMdirect, L.L.C., a Nevada limited liability company
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located at 0000 Xxxx Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000 ("Company")
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(hereinafter RazorStream and Company may be referred to individually as a
"Party" and collectively as the "Parties").
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RECITALS
A. The Parties are parties to that certain License, Hosting and
Services Agreement dated to be effective as of May 1, 2005 (the "Original
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Agreement").
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B. The Parties desire to enter into this Agreement to (a) amend and
restate the Original Agreement, and (b) to govern the terms and conditions
pursuant to which RazorStream (i) makes the Technology (as defined below)
available to Company, and (ii) provides certain hosting and support and
maintenance services to Company.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS. In addition to the terms defined elsewhere in this
Agreement and in the attached Exhibits, the following terms shall have the
meanings set forth below:
1.1 "Accounting Records" means (a) with respect Company, financial records
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with regard to the gross revenue from User accounts, and (b) with respect to
RazorStream, financial records with regard to the records of the Expenses
charged by RazorStream to Company.
1.2 "Affiliate" means (a) with respect to the Company, any person or entity
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directly, or indirectly through one or more intermediaries, controlled by, or
under common control with, Company, and (b) with respect to RazorStream, any
person or entity controlling, controlled by, or under common control with
RazorStream. For purposes of this definition, "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of an entity, whether through the ownership of voting
securities or voting interests, by contract or otherwise.
1.3 "Bandwidth" means the capacity of the connection between the
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Technology/Hosting Services and the Internet.
1.4 "Claim" means any allegation, claim, suit, action, demand, cause of
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action, investigation or proceeding.
1.5 "Company Services" means any product or service offered by Company from
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time to time to its Users that includes the Technology.
1.6 "Company Software" means software owned and/or licensed to Company that
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is used with, or that incorporates and/or embeds, the Technology.
1.7 "Derivative Work" means any work, which would be deemed a derivative work
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under the Copyright Act, Title 17 of the U.S. Code.
1.8 "Documentation" means the technical and user manuals, FAQ materials,
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including any computer or web-based training materials, and any hardware or
software specifications, system performance, compatibility or operational
criteria or other official documentation described in Exhibit A or otherwise
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made available by RazorStream to Company with respect to the Technology;
provided, however, that except as otherwise approved by Company, any such items
made available to Company after the Effective Date shall not become
Documentation if they would materially diminish or reduce the functionality of
the Technology.
1.9 "Expenses" means the costs, fees, expenses and other amounts (including,
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but not limited to, Fees) incurred by Company under this Agreement.
1.10 "Field of Use" means the provision of video-based Internet
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communication products and/or services, including, without limitation, video
e-mail, video instant messaging, live or pre-recorded webcasting, digital vault
storage technology and/or podcasting, including, without limitation, for
purposes of Internet-based social networking applications or websites, and/or
commercial products or applications.
1.11 "Intellectual Property Rights" means one or more of the following: (a)
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rights associated with works of authorship throughout the universe; (b)
copyrights; (c) moral rights; (d) mask-works; (e) trademarks and service marks;
(f) trade names; (g) trade secrets; (h) patents, designs, algorithms and other
industrial property rights; (i) any other intellectual and industrial property
rights, whether arising by operation of law, contract, license, or otherwise;
and (j) with respect to the foregoing, all registrations, initial applications,
renewals, extensions, continuations, divisions or reissues hereof now or
hereafter in force.
1.12 "Internet" means the world-wide network of computers commonly understood
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to provide some or all of the following features, among others: electronic mail,
file transfers through File Transfer Protocol, Telnet access to local and remote
computers, UseNet Newsgroups, Gopher access to information on local and remote
computers, Wide Area Information Servers, and World Wide Web access.
1.13 "Liabilities" means any and all losses, damages, judgments, assessments,
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deficiencies, expenses (including court costs and reasonable attorneys' fees),
costs and other liabilities of whatsoever kind.
1.14 "Licensed Entities" means Company, its Affiliates, any third party
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authorized by Company from time to time, and the Users.
1.15 "Minimum Guaranteed Payment" has the meaning set forth in Exhibit D of
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this Agreement.
1.16 "Modifications" means any modification (including custom modifications
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made specifically for or at the request of Company), addition, enhancement,
revision, translation, abridgment, condensation or expansion to or arising from
the Technology, or any other form in which the Technology or any part thereof,
may be recast or transformed, in any manner that does not constitute a
Derivative Work.
1.17 "New Version" means, with respect to software embodied in the Technology,
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a version of the Technology which contains significant changes in features and
functionality and has a new version numbering, as determined in RazorStream's
sole discretion.
1.18 "Non-Recurring Engineering Fees" has the meaning set forth in Exhibit D
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of this Agreement.
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1.19 "Object Code" means computer software program code that is intended to be
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directly executable by a computer after suitable processing and without the
intervening steps of compilation or assembly.
1.20 "Operations Records" means (a) written records maintained by RazorStream
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with regard to the maintenance and operation of the Technology and Hosting
Services, including, but not limited to, maintenance, repair records, upgrade
records, and server logs for the Technology and Hosting Services in relation to
Transaction activity, and (b) documentation with regard to operational audits
performed by or on behalf of RazorStream.
1.21 "RazorStream Brand Features" means the trademarks, trade names, service
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marks, service names and logos proprietary to RazorStream, as set forth on
Exhibit A, as such exhibit may be modified from time to time by mutual agreement
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of the parties (which agreement will not be unreasonably withheld or delayed).
1.22 "Related Parties" means any owner, parent, partner, Affiliate,
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subsidiary, agent, subcontractor, director, officer, hired or leased employee or
worker, or permitted assignee of RazorStream or Company, as the case may be and
as the context requires.
1.23 "Source Code" means computer software program code, other than Object
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Code and procedural code, such as job control language, which may be printed out
or displayed in human readable form (together with its supporting
documentation).
1.24 "Specifications" means (a) the design characteristics, compatibility
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requirements, customization, features, functional, performance, engineering,
operational and/or technical criteria, and the required hardware and software
operating environment for operation of the Technology, (b) the requirements for
the Technology described in Exhibit A and/or the Documentation, (c) the
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representations, warranties, covenants and other guarantees provided in this
Agreement, and (d) any written performance, feature or functionality
specifications or documentation related to the Technology provided or made
available by or through RazorStream to Company and approved by Company either
prior to or after the Effective Date.
1.25 "Subscriber Account" means each active User account of a website operated
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by Company or any third party authorized by Company, whereby the Company
Software is sublicensed to such User.
1.26 "Technology" means (a) the software applications and computer programs
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described in the attached Exhibit A, (b) any Technology Releases developed by
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RazorStream from time to time, (c) any custom Technology enhancements developed
by RazorStream hereunder pursuant to a SOW, (d) any interfaces necessary for the
Technology to function within the operating environment of the Licensed
Entities, and (e) all Documentation relating to any of the foregoing. For the
avoidance of doubt, the term "Technology" includes any third party technology,
software or products embedded in the computer program described on Exhibit A or
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any Technology Release.
1.27 "Technology Releases" means any corrections, modifications, or bug fixes,
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enhancements, updates, new versions or releases to the Technology.
1.28 "Territory" means the world.
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1.29 "Third Party Service Provider" means a third party Internet service
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provider (ISP) that directly or through one or more intermediaries provides
services to RazorStream in order for RazorStream to fulfill its obligations
under this Agreement, including: (a) two (2) or more independent ISP
connections; (b) related online facilities management and redundancy; and (c)
related power supply and power management.
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1.30 "Third Party Software" means the third party software and technologies
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(licensed to RazorStream from third party software providers) that are
integrated into the Technology, a list of which is set forth on Exhibit E
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hereto.
1.31 "Transaction" means any User transaction consummated with respect to the
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Company Services via the Technology and Hosting Services.
1.32 "Update" means bug fixes, improvements, updates, Modifications,
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Derivative Works and upgrades to any portion of the Technology developed by
RazorStream from time to time.
1.33 "User" means individuals and entities who utilize the Company Software
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for their personal or commercial purposes, as permitted by Company from time to
time, through one or more websites operated by Company or any third party
authorized by Company.
1.34 "User Information" means personally identifiable information of Users and
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any other information or data relating to any Transaction transmitted via the
Technology and Hosting Services in connection with or otherwise relating to
Company, the Users and/or the Company Services.
1.35 "Virus" means a set of computer instructions which are self-replicating
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or self-propagating and are designed to contaminate the Technology, unexpectedly
consume computer resources, or modify, destroy, record or transmit data or
programming without the intent or permission of the user.
2. RULES OF CONSTRUCTION.
For all purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires: (a) the terms defined herein include the
plural as well as the singular and vice-versa; (b) words importing gender
include all genders; (c) any reference to an "Exhibit," an "Article," or a
"Section" refers to an Exhibit, an Article, or a Section, as the case may be, of
this Agreement; (d) the Exhibits hereto form part of this Agreement; (e) all
references to this Agreement and the words "herein", "hereof", "hereto" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Exhibit, Article, Section, or other subdivision; (f)
all Article and Section headings are for convenience only and shall not affect
the interpretation or construction of this Agreement, (g) the words "including,"
"included" and "includes" mean inclusion without limitation except as noted; and
(h) this Agreement, the Documentation and the Exhibits hereto shall be construed
as consistent with one another whenever possible; however, in the event of any
conflict between any of the terms and conditions of this Agreement, on the one
hand, and the Exhibits and/or the Documentation, on the other hand, this
Agreement shall prevail.
3. TECHNOLOGY LICENSE AND HOSTING SERVICE.
3.1 License Grant. Subject to Company's continued compliance with the
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obligations of this Agreement, RazorStream hereby grants Company throughout the
Territory and solely within the Field of Use:
3.1.1 a perpetual, royalty-free, non-exclusive, irrevocable license,
under the Intellectual Property Rights comprising the Technology, to use,
copy, reproduce, modify, and prepare Derivative Works of, the Technology,
including, with respect to any software embodied therein, in Source Code
format, solely for the purposes of integrating and/or embedding the
Technology with, and/or otherwise designing and/or developing the Company
Software;
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3.1.2 a perpetual, royalty-free, non-exclusive, irrevocable license,
under the Intellectual Property Rights comprising the Technology, to use,
copy, have used, reproduce, distribute, modify, prepare Derivative Works
of, perform, display, license and otherwise exploit the Technology,
including with respect to any software embodied therein, in Object Code
format only, as embedded in, or integrated with, in whole or in part,
the Company Software;
3.1.3 the limited right to grant in the Territory, exclusive or
non-exclusive, sublicenses in and to the Technology (including to all
Intellectual Property Rights therein), including with respect to any
software embodied therein, in Object Code format only, solely for the
purpose of exploiting the Company Software (including, without limitation,
embedding or integrating such software, in Object Code form only, on
Company or third party websites and/or in Company and/or third-party
applications and devices);
3.1.4 the limited right to grant in the Territory, exclusive or
non-exclusive, sublicenses in and to the Technology (including all
Intellectual Property Rights therein), including with respect to any
software embodied therein, in Object Code format only, to Users, solely for
the purpose of using the Company Software (including, without limitation,
as such Company Software may be embedded or integrated in third-party
applications and devices);
3.1.5 a perpetual, royalty-free, non-exclusive, irrevocable license to
make additional copies of the Technology as needed for archival or back-up
purposes;
3.1.6 a perpetual, royalty-free, non-exclusive, irrevocable license to
copy and display the Documentation only as reasonably necessary to exercise
the licenses granted to Company in Sections 3.1.1-3.1.5, including any
sublicense rights therein;
3.1.7 a perpetual, royalty-free, non-exclusive, irrevocable license to
use, reproduce and display the RazorStream Brand Features in connection
with the sale, advertising, distribution, exploitation, publishing,
promotion, and marketing of the Company Software, in each case, as approved
by RazorStream from time to time (which approval will not be unreasonably
withheld or delayed); and
3.1.8 anon-exclusive sublicense in and to the Third Party Software
(including all Intellectual Property Rights therein),as incorporated in the
Technology, to use and exploit such Third Party Software to the same extent
permitted by RazorStream in its license agreements with the respective
owners of such Third Party Software, in each case as set forth on Exhibit
E.
3.2 Specifications. Exhibit A sets forth either detailed or high-level
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descriptions for the Technology. To the extent not already developed and set
forth on Exhibit A, RazorStream promptly shall develop detailed Specifications
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for each item of the Technology within thirty (30) days after the Effective
Date, which requirement is a material term of this Agreement as long as Company
provides timely feedback. All Specifications developed in accordance with the
foregoing sentence shall be subject to Company's review and approval, which
review and approval shall not be unreasonably withheld or delayed. Such
Specifications, and any modified Specifications approved by Company,
automatically shall become part of Exhibit A for all purposes under this
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Agreement in regards to the initial implementation.
3.3 Hosting Services. During the Term, RazorStream shall host the Technology
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for the Licensed Entities' access and use of the Technology (the "Hosting
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Services"). As part of the Hosting Services, RazorStream shall provide, operate
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and maintain at its premises, or facilities under its control and supervision,
all servers, operating system software, network security, connectivity and other
items
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necessary for the proper operation of the Technology in accordance with its
Specifications, the service level agreement set forth in Article 8 below and all
other provisions of this Agreement.
3.4 Documentation. RazorStream shall provide Company with Documentation
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(which may be in electronic format) that is sufficiently detailed so as to
enable a reasonable end-user to use the Technology for its intended purpose and
which sets forth the Specifications for the Technology. Company may duplicate
the Documentation so that Company's personnel may use the Technology and
Documentation to conduct electronic commerce business activities from as many
work stations as may be required.
3.5 Source Code Escrow. Within sixty (60) days after the Effective Date,
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RazorStream shall deposit and maintain the Technology in Source Code form
(including all any updates, modifications or enhancements), together with all
Documentation and appropriate supporting materials, in escrow with DSI
Technology Escrow Services Inc. (or such other escrow agent as mutually agreed)
for the benefit of Company pursuant to a separate escrow agreement in a form
acceptable to both Parties. Company shall be permitted to access and use the
escrowed materials (a) if RazorStream ceases to operate or states, either in
general to the public, or in writing to Company, that RazorStream does not
intend to continue to support the Technology, (b) upon the occurrence of an
Event of Default by RazorStream with respect to any obligation or duty relating
to the Hosting Services and/or Support Services, (c) upon bankruptcy or
insolvency of RazorStream, (d) upon termination of this Agreement by Company
pursuant to Sections 3.6, 14.1 or 14.2, or (e) as otherwise set forth in the
escrow agreement. The costs for maintaining the Technology in Source Code form
on behalf of Company by the escrow agent shall be paid by Company.
The escrow agreement shall include, without limitation, a license grant for use
of the escrowed materials by Company in such manner as shall be reasonably
required to exercise the rights pursuant to this Agreement, including to use,
reproduce, publicly display and perform, and modify (including without
limitation the ability to alter, change, enhance and make additions to) the
Source Code consistent with the licenses granted herein. Company may engage a
third party consultant or independent contractor to modify, change or enhance
the Source Code on Company's behalf; provided, however, that Company shall first
require that any such consultant or independent contractor execute a
non-disclosure agreement. Any modifications or derivative works (including all
alterations, changes, enhancements and additions) to the Source Code created by
or on behalf of Company, but not the base Source Code that was the starting
place for such modifications, shall be owned solely and exclusively by Company
and RazorStream hereby assigns all of its right, title and interest in and to
such modifications or derivative works to Company. RazorStream also shall
promptly place any updates, modifications or enhancements and accompanying
Documentation and/or supporting materials into such escrow. The nature and
completeness of the escrowed materials will be subject to verification at the
facilities of the escrow agent by a representative of Company in the presence of
a representative of RazorStream. From time to time at Company's request,
RazorStream shall provide Company with a list of all third-party software
embedded in the Technology, if any.
3.6 Option to Host Technology. Company may, at its sole option, elect to
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host the Technology on Company's, or a third party's, servers for the benefit of
all Licensed Entities, by providing thirty (30) days' prior written notice to
RazorStream at anytime during the Term. Following the exercise of such option,
RazorStream shall continue to provide the Technology and Hosting Services as
provided hereunder until such time as Company has confirmed in writing that the
Technology has been successfully transitioned to Company's, or a third party's,
servers (the "Transfer Notice"). RazorStream shall use reasonable and good
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faith efforts to cooperate with Company to transition the Technology. Company
shall be responsible for all expenses associated with transferring and retooling
and equipment required for the Technology on Company's equipment. The exercise
by Company of the option hereunder shall be deemed a termination of this
Agreement under Section 14.2.
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3.7 Application to Company and Third Party Websites. For the avoidance of
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doubt, and without limiting any portion of this Section 3, the licenses granted
herein shall apply to each individual website operated by Company or any third
party authorized thereby. The Parties acknowledge and agree that the websites
operated by Company, or any third party authorized thereby from time to time,
shall be as set forth on the attached Exhibit F, which Exhibit may be
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unilaterally amended by Company in accordance with the provisions of Section
11.1.
4. OWNERSHIP.
4.1 Technology Ownership. As between the parties, the Technology, Updates,
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New Versions, Modifications and/or Derivative Works to the Technology made by
RazorStream and provided to Company by RazorStream under this Agreement, and the
RazorStream Brand Features, shall remain the sole and exclusive property of
RazorStream, with all right, title and interest therein to be held exclusively
by RazorStream, provided, however, that any and all Updates, New Versions,
Modifications and/or Derivative Works to the Technology made by RazorStream
shall be deemed to be included within the licenses granted to Company under the
terms of this Agreement. As between the parties, the Company Software, and any
Updates, New Versions, Modifications and/or Derivative Works thereto, and any
Modifications and/or Derivative Works to the Technology, made by or on behalf of
Company, shall remain the sole and exclusive property of Company, with all
right, title and interest therein to be held exclusively by Company.
Additionally, RazorStream acknowledges that as between the Parties, Company owns
all right, title and interest, including all Intellectual Property Rights, in
and to all content, information and/or data processed by or transmitted via the
Technology and Hosting Services, including all User Information.
4.2 License Restrictions. Except as otherwise provided herein, this
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Agreement does not grant to Company any rights of ownership to the Technology.
Except as otherwise provided herein, Company may not modify, decompile,
disassemble, reverse engineer or otherwise attempt to discover the Source Code
of the Technology or create derivative works based thereon, and Company shall
not remove any proprietary notices, labels, or marks on any component of the
Technology.
5. CONFIDENTIALITY.
5.1 Confidential Information. During the term of this Agreement, either
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party may come into possession of the other party's Confidential Information.
For the purposes of this Agreement, "CONFIDENTIAL INFORMATION" means any
information that a party designates as confidential or which the receiving party
knows or has reason to know is confidential. Without limiting the foregoing,
Confidential Information includes financial, business and technical plans and
strategies, pricing information, customer lists, inventions, new products,
services or technology. Confidential Information does not include information
which is: (a) already known by the receiving party at time of disclosure; (b) or
becomes, through no act or fault of the receiving party, publicly known; (c)
received by the receiving party from a third party without a restriction on
disclosure or use; or (d) independently developed by the receiving party without
reference to the disclosing party's Confidential Information. The receiving
party may disclose Confidential Information to the extent required to be
disclosed by a court or governmental agency pursuant to a statute, regulation or
valid order; provided that the receiving party first notifies the disclosing
party and gives it the opportunity to seek a protective order or to contest such
required disclosure.
5.2 Restrictions. Each party will hold the disclosing party's Confidential
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Information in confidence and will not use such information except as permitted
under this Agreement. Each party will use the same precautions to prevent
disclosure to third parties of such information as it uses with its own
confidential information, but in no case less than reasonable efforts.
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5.3 Additional Obligations. Each party agrees (a) not to alter or remove any
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identification of any copyright, trademark or other proprietary rights notice
which indicates the ownership of any part of the Confidential Information, and
(b) to notify the other party of the circumstances surrounding any possession,
use or knowledge of the Confidential Information by any person or entity other
than those authorized by this Agreement.
5.4 Privacy Compliance. Notwithstanding anything herein to the contrary,
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RazorStream shall not collect, use or disclose any User Information that would
violate any applicable privacy or other laws, rules, regulations, generally
accepted industry standards or the terms of this Agreement.
6. PROFESSIONAL SERVICES.
6.1 SOW; Deliverables. RazorStream will perform professional services
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("Professional Services") for Company, initially as part of the Implementation
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Services, as defined below, and as Company and RazorStream may agree from time
to time. For each project undertaken by RazorStream under this Agreement
outside of the initial Implementation Services, RazorStream and Company will
enter into a written Statement of Work ("SOW") pursuant to this Agreement,
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substantially in the form of the attached Exhibit B. Each SOW shall include a
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description of the Professional Services to be performed, the work product to be
produced by RazorStream (the "Deliverables"), the terms of ownership of the
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Deliverables (including ownership of any Intellectual Property Rights therein),
any requirements and specifications for the project or the Deliverables, any
compensation to be paid to RazorStream for the Professional Services and any
pre-approved reimbursable expenses to be charged to Company, and the project
schedule for performance of the Professional Services and delivery of the
Deliverables. RazorStream shall complete the Professional Services described in
each SOW in accordance with the project schedule and/or milestones, as
applicable, set forth in the SOW or any project plan drafted pursuant to such
SOW that has been approved by Company. The pricing for the Professional
Services described in any SOW may be either a fixed amount or may be charged on
a time and materials basis, as the Parties may agree in the applicable SOW.
Where a SOW provides that RazorStream will perform the Professional Services
described such SOW on a time and materials basis, RazorStream shall set forth an
estimate of the total charges for completion of such Professional Services and
such estimate shall not be exceeded without Company's prior written consent.
Unless otherwise agreed in any SOW, any Deliverables created under this
Agreement shall automatically be included within the definition of "Technology"
under this Agreement.
6.2 Change Orders. Company may require reasonable changes in the scope of
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the Professional Services described in any SOW that RazorStream shall perform
upon receiving notice thereof from Company. Notwithstanding the foregoing, if
the change in the scope of the Professional Services under an SOW requested by
Company materially increases the amount of time to be spent by RazorStream in
providing the Professional Services as so modified, then Company and RazorStream
shall agree in writing to a change order with respect to such SOW ("Change
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Order") setting forth a description of the additional Professional Services to
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be provided by RazorStream and the additional compensation, if any, for such
additional Professional Services. RazorStream shall not be obligated to perform
such additional Professional Services if Company and RazorStream cannot agree in
writing on the pricing for such additional Professional Services.
Notwithstanding any other provision of this Agreement, Company shall have no
obligation to pay any charges for any Professional Services rendered pursuant to
this Agreement that exceed the fixed price, or the estimate of all total time
and materials charges, set forth in any SOW, unless such additional charges have
been approved in writing by Company in advance. This Agreement and any SOW or
Change Order shall be construed as consistent with one another whenever
possible; provided, however, that notwithstanding anything herein to the
contrary, in the event of any conflict between any of the terms and conditions
of this Agreement, on the one hand, and any SOW or Change Order, on the other
hand, this Agreement shall prevail.
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6.3 Implementation Services. Notwithstanding the foregoing, in connection
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with the roll-out of the Technology for use in a production environment by, and
with respect to the roll-out of each individual website operated by, Company or
any third party authorized by Company, RazorStream shall provide, pursuant to
the fees set forth in Exhibit D, all (a) account set-up, engineering and
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implementation hardware, equipment and services reasonably necessary with
respect to the installation, testing and proper configuration of the Technology
and Hosting Services to ensure that the Technology and Hosting Services function
substantially in accordance with the Specifications and otherwise meet Company's
requirements in all respects, and (b) such training services as Company may
reasonably request (collectively, the "Implementation Services"). Prior to
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commencing any Professional Services other than the Implementation Services, it
shall be RazorStream's responsibility to obtain a separate SOW with Company that
shall govern RazorStream's performance of such Professional Services and any
compensation owed to RazorStream there for. RazorStream shall not be entitled to
any compensation for (i) the Implementation Services, or (i) any Professional
Services rendered by RazorStream for Company unless Company has agreed in a
separate SOW to such charges.
7. MAINTENANCE AND SUPPORT.
During the Term, and at all times thereafter to the extent Company continues to
use the Technology, RazorStream shall provide to Company the maintenance and
support services ("Support Services") for the Technology in accordance with the
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terms and conditions set forth on Exhibit C hereto.
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8. REDUNDANCY; BACK-UP; THIRD PARTY SERVICE PROVIDERS.
8.1 Redundancy; Disaster Recovery. At all times during the Term of this
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Agreement, RazorStream shall maintain complete back-up facilities at a remote
location so as to ensure availability of the Technology and Hosting Services in
the event that the Technology or Hosting Services experience technical
difficulties or other problems whether within or beyond RazorStream's reasonable
control.
8.2 Bandwidth. During the Term, the Bandwidth representing the connection of
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the Technology/Hosting Services to the Internet shall only operate at capacity
for periods of time that are commercially reasonable (as determined by
applicable industry standards and practices in effect from time to time). In the
event that (a) the Technology/Hosting Services connection exceeds Bandwidth
capacity beyond periods of time that are commercially reasonable in any given
calendar month, and (b) Company reasonably anticipates that the
Technology/Hosting Services connection will continue to exceed Bandwidth
capacity, RazorStream shall provide additional bandwidth as requested by Company
within thirty (30) days, provided that such increases in Bandwidth are
reasonable and a commensurate increase in compensation is mutually agreed
between RazorStream and Company.
Initial Bandwidth will be set at a guaranteed 100Mbps (megabits per second),
burstable to 1 Gbps (gigabit per second). This given resource level, independent
of other factors, can support an approximate sustained 800 simultaneous 128Kb
video connections. Burst allowance can support an approximate 7,500 simultaneous
128Kb video connections.
Bandwidth utilization samples are taken for each 5 minute interval throughout
the month. The 95th percentile of the sample data will be used as the basis for
all usage charges. The Customer shall be billed the higher of (i) the Minimum
Ethernet MRC (in the event Customer's 95th percentile usage is equal to or less
than the applicable Minimum Usage) or (ii) an MRC equal to the Minimum Ethernet
MRC plus an amount equal to the product of the 95th percentile usage in excess
of the applicable Minimum Usage for such month multiplied by the applicable Unit
MRC.
-9-
8.3 Back-Up of Transaction Logs. RazorStream shall make a complete back-up
-----------------------------
of the Transaction logs on a daily basis during the Term. On the first day of
every month during the Term, or at more frequent intervals as reasonably
requested by Company, RazorStream shall deliver to Company a complete electronic
copy of the Transaction logs for the previous month.
8.4 Notice of Third Party Service Provider. RazorStream may change its Third
--------------------------------------
Party Service Provider as long as notice of such change is provided to Company
within 30 days of such change.
9. SECURITY.
9.1 Security. RazorStream shall use SSL encryption or other such technology
--------
consistent with applicable industry standards and practices as in effect from
time to time to ensure that the Technology is configured so as to (a) permit
only Licensed Entities' use of the Technology for purposes of conducting
Transactions, and (b) prohibit any non-Licensed Entities' use of the Technology
and/or unauthorized use of Company's ARC merchant account numbers. Further,
RazorStream acknowledges that the User Information is specific to Company and
Users and that it is not to be made available to the public at large.
RazorStream shall take all reasonably necessary precautions to ensure that User
Information is made available only to Company and to Users to whom User
Information relates.
9.2 Incident Response Protocol. RazorStream will promptly remedy and respond
--------------------------
to, and notify Company of, any intrusion or attempted intrusion by unauthorized
persons to the Transaction logs and/or User Information.
10. RESERVED.
11. RAZORSTREAM FEES AND PAYMENT.
11.1 Fees. In consideration for the Hosting Services provided by RazorStream
----
with respect to the Technology and the Support Services provided by RazorStream,
Company shall pay RazorStream, for each individual website operated by Company
or any third party authorized thereby, the fees and other amounts described in
Exhibit D to this Agreement ("Fees"). Except as otherwise approved by Company
---------- ----
in writing in advance, the Fees are the only amount for which RazorStream may
invoice Company with respect to the provision, installation and implementation
(including, but not limited to, configuration and integration) of the Technology
and Hosting Services and the use or operation thereof by Company. For the
avoidance of doubt, the Fees set forth in Exhibit D shall apply independently to
---------
each individual website operated by Company or any third party authorized
thereby, and no Fees charged with respect to any individual website, and no
Subscriber Accounts applied with respect to any individual website, shall be
aggregated with any Fees or Subscriber Accounts, respectively, applied to any
other website. In connection with each individual website to be operated by
Company, or any third party authorized thereby, Company will provide five (5)
business days notice thereof to RazorStream (whereby, for purposes hereof,
electronic notice will suffice), which notice will identify the individual
website (and corresponding URL), will identify the services required by
RazorStream, and will attach an amendment to Exhibit F which amendment will set
---------
forth an aggregate list of websites operated by the Company and any applicable
third party as of the date of such notice. In connection with each individual
website to be operated by Company, or any third party authorized thereby, (i)
RazorStream shall provide the Hosting Services, Support Services, Implementation
Services, Professional Services and any other services required hereby with
respect to each such website, in each case subject to the terms and conditions
hereof, and (ii) RazorStream shall be entitled to be paid the Fees as set forth
in Exhibit D.
----------
11.2 SOW Invoices. For all Professional Services performed by RazorStream for
------------
Company pursuant to a SOW, Company shall be invoiced as described in such SOW.
-10-
11.3 Expenses. With the exception of travel and related expenses in
--------
connection with Professional Services rendered by RazorStream for Company which
are specified in a SOW, RazorStream shall be solely responsible for payment of
all expenses arising from its performance of this Agreement, including expenses
for facilities, computer equipment, software, Internet and/or telecommunications
charges in connection with the Hosting Services.
11.4 Payment Terms. Except as otherwise explicitly provided in this
--------------
Agreement, all amounts (other than any amounts disputed by Company in good
faith) owed by Company to RazorStream hereunder shall be due and payable no
later than thirty (30) days after Company's receipt of RazorStream's invoice
there for.
11.5 Taxes. RazorStream will add to any Fees payable by Company, an amount
-----
equal to any applicable taxes, local, state or federal, however designated, that
must be validly levied or based upon this Agreement or upon the material,
software and services furnished hereunder, excluding, however, ad valorem,
personal property taxes, state and local privilege and excise taxes based on
gross revenue, taxes based on or measured by RazorStream's net income, and any
taxes or amounts in lieu thereof paid or payable by RazorStream in respect of
the foregoing excluded items. Taxes payable by Company will be billed as
separate items on RazorStream's invoices.
12. RECORDS; AUDITS.
12.1 Maintenance of Company Records. During the Term and for a period of two
-------------------------------
(2) years thereafter, Company shall maintain complete and accurate Accounting
Records and with regard to its payment of amounts to RazorStream hereunder.
Company shall maintain all Accounting Records in accordance with generally
accepted accounting principles, consistently applied.
12.2 Maintenance of RazorStream Records. During the Term and for a period of
-----------------------------------
two (2) years thereafter, RazorStream shall maintain complete and accurate
Accounting Records and Operations Records with regard to the services provided
to Company under this Agreement. RazorStream shall maintain all Accounting
Records in accordance with generally accepted accounting principles,
consistently applied.
12.3 Inspection of Company Accounting Records. Upon reasonable notice to
--------------------------------------------
Company, and during regular Company business hours, RazorStream shall have the
right to review the Company Accounting Records to confirm accurate payment of
the amounts owed by Company to RazorStream. Such reviews may take place
periodically, but shall not occur more than once each fiscal year.
12.4 Compliance Audit. During the Term of this Agreement and for two (2)
-----------------
years thereafter, Company shall have the right to audit or cause to be audited
the Operations Records in order to verify RazorStream's compliance with its
obligations under this Agreement, including but not limited to all those
relating to the security and privacy of User Information. Any such audit shall
be conducted at Company's expense by Company's internal auditor or an
independent auditor selected by Company and shall be done if feasible during
RazorStream's regular business hours in such a manner as not to interfere with
RazorStream's normal business activities.
12.5 Financial Audit of RazorStream. During the Term and for a period of two
-------------------------------
(2) years thereafter, Company shall have the right to audit or cause to be
audited the Accounting Records in order to verify the accuracy of the Expenses
charged by RazorStream to Company. Any such audit shall be conducted at the
expense of Company; provided that, in the event that such audit reveals that
RazorStream has overcharged Company by five percent (5%) or more, RazorStream
shall reimburse Company for the costs of the audit. RazorStream promptly shall
reimburse Company for any overcharge of Expenses. To the
-11-
extent feasible, any such audit shall be conducted during RazorStream's regular
business hours in such a manner as not to interfere with RazorStream's normal
business activities.
12.6 Cooperation of RazorStream. RazorStream shall cooperate fully with
----------------------------
Company and any independent third party mutually agreed upon by Company and
RazorStream in connection with any such audit and shall assist Company and any
such independent third party, as reasonably requested by Company or such
independent third party.
12.7 Transaction Log Reports. On at least a monthly basis during the Term of
------------------------
this Agreement, RazorStream shall provide to Company summaries and analyses of
Transaction logs and related files.
12.8 Incident Response Reports. In accordance with the Incident Response
---------------------------
Protocol, RazorStream immediately will provide Company written information in
reasonable detail of any breach or attempted breach of the security of the User
Information or Transaction logs.
12.9 No Limitation of Remedies. The remedies set forth in this Article are
----------------------------
cumulative and in no way limit or waive any other remedies available to Company.
13. TERM.
Unless sooner terminated pursuant to the provisions of Section 3.6 (Option to
Host Technology) above or Article 14 (Termination) below, the term of this
Agreement shall commence as of the Effective Date and shall continue through
January 15, 2008 (the "Initial Term"). Unless terminated earlier, the Agreement
shall automatically continue following the Initial Term, until either Party
provides the other sixty (60) days written notice of termination for any reason
(the "Extended Term" and, with the Initial Term, the "Term").
14. TERMINATION.
14.1 Termination for Default. Either Party shall have the right to terminate
------------------------
this Agreement upon written notice to the other Party following the occurrence
of any of the following (each, an "Event of Default"): (a) in the event of a
----------------
breach by either Party of any material term or provision herein which is not
cured within thirty (30) days after the non-breaching Party gives written notice
to the breaching Party describing the breach; or (b) in the event that the other
Party voluntarily files any bankruptcy petition, or becomes the subject of any
involuntary bankruptcy proceeding that is not dismissed within sixty (60) days,
becomes insolvent, makes an assignment for the benefit of creditors, or a
receiver, liquidator or trustee is appointed for its affairs.
14.2 Termination by Company. In addition to any termination right otherwise
------------------------
provided hereunder (including under Section 3.6), Company shall have the right
to terminate this Agreement as follows: (a) immediately, if RazorStream
repeatedly breaches any of its obligations under this Agreement (i.e., three (3)
or more times within a six (6) month period), even though RazorStream remedies
each such breach within the applicable time period specified above; or (b)
immediately, in the event of a breach by RazorStream of the Support Services, as
identified and set forth in Article 7 and Exhibit C hereof, that is not cured
---------
within thirty (30) days after Company gives written notice to RazorStream
describing the breach.
14.3 Effect of Termination. Except as provided in Section 3.5 (Source Code
-----------------------
Escrow) above, and except for the perpetual licenses granted to Company
hereunder, and except as otherwise provided herein, upon expiration or
termination of this Agreement: (a) all rights and licenses granted hereunder
will automatically cease; (b) any undisputed amounts due hereunder but not yet
paid shall become due and
-12-
payable; (c) RazorStream will return to Company all copies of Transaction logs,
all related data and any other materials provided to RazorStream by Company (or
at the election of Company, destroy such copies and cause an executive officer
of RazorStream to certify the same to Company); (d) RazorStream will continue to
provide the support and maintenance services set forth in Exhibit C; and (e)
---------
except as otherwise necessary for completion of the access rights upon
termination set forth in this Section 14.3, all Confidential Information shall
be returned or destroyed pursuant to the provisions of Section 5. For the
avoidance of doubt, upon the expiration or termination of this Agreement for any
reason, provided that RazorStream continues to provide the support and
maintenance services set forth in Exhibit C, Company shall continue to make the
---------
maintenance payments set forth on Exhibit D hereto with respect to such support
---------
and maintenance services, in each case, for each individual website operated by
Company or a third party authorized thereby.
14.4 No Prejudice. Termination of this Agreement shall not affect any of the
-------------
rights and obligations of the Parties that have accrued prior to such
termination.
15. RELATIONSHIP OF THE PARTIES; INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that each Party is acting independently
and neither Party is deemed to be an agent, partner, or joint venturer with the
other Party for any purpose, nor are the employees, agents or subcontractors of
one Party deemed to be employees, agents or subcontractors of the other. One
Party has no authority to assume or create any obligation for or on behalf of
the other Party, express or implied, with respect to this Agreement or
otherwise. Each Party is wholly independent and shall exercise full control
over performance of its obligations under this Agreement and over its employees,
agents and subcontractors and each Party is wholly responsible for withholding
and payment of all income and other payroll taxes with respect to itself and its
employees, as required by law.
16. REPRESENTATIONS AND WARRANTIES.
16.1 General Representations and Warranties. Each Party represents and
-----------------------------------------
warrants that: (a) it is a corporation or a limited liability company, as
applicable, duly incorporated, validly existing and in good standing; (b) it has
all requisite corporate power and authority to execute, deliver and perform its
obligations hereunder; (c) it is duly licensed, authorized or qualified to do
business and is in good standing in every jurisdiction in which a license,
authorization or qualification is required for the ownership or leasing of its
assets or the transaction of business of the character transacted by it except
when the failure to be so licensed, authorized or qualified would not have a
material adverse effect on its ability to fulfill its obligations hereunder; and
(d) it is not a party to any agreement with a third party, the performance of
which is reasonably likely to affect adversely its ability or the ability of the
other Party to perform fully its respective obligations hereunder.
16.2 Additional RazorStream Representations and Warranties. RazorStream
---------------------------------------------------------
further represents and warrants to Company that it owns the Technology and
Documentation and that the Technology and Documentation do not, to the best of
its knowledge, infringe the rights of any third party, including, but not
limited to any third party's Intellectual Property Rights.
16.3 Disclaimer. EXCEPT AS PROVIDED IN SECTIONS 16.1 AND 16.2 ABOVE,
----------
RAZORSTREAM PROVIDES THE TECHNOLOGY "AS IS," WITHOUT WARRANTY OF ANY KIND,
EITHER EXPRESS OR IMPLIED. RAZORSTREAM SPECIFICALLY DISCLAIMS THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY
WARRANTIES ARISING BY AFFIRMATION, PROMISE, DESCRIPTION OR SAMPLE. RAZORSTREAM
SHALL NOT BE OBLIGATED TO PROVIDE ANY UPDATES, ENHANCEMENTS OR EXTENSIONS UNLESS
SPECIFICALLY SET FORTH IN THIS
-13-
AGREEMENT. RAZORSTREAM NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR
IT ANY OTHER LIABILITY.
17. LIMITATION OF LIABILITY.
17.1 Disclaimer of Consequential Damages. EXCEPT AS PROVIDE IN SECTION 17.2
-------------------------------------
(EXCEPTIONS TO LIMITATION OF LIABILITY) BELOW, IN NO EVENT SHALL (A) COMPANY OR
ITS RELATED PARTIES, ON THE ONE HAND, OR RAZORSTREAM OR ITS RELATED PARTIES, ON
THE OTHER HAND, BE LIABLE TO THE OTHER PARTY, IN CONTRACT OR IN TORT, OR UNDER
ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, OR (B) EITHER COMPANY OR ITS
RELATED PARTIES, ON THE ONE HAND, OR RAZORSTREAM OR ITS RELATED PARTIES, ON THE
OTHER HAND, BE LIABLE TO THE OTHER PARTY FOR AN AMOUNT GREATER THAN THE
AGGREGATE AMOUNT OF FEES PAYABLE TO RAZORSTREAM UNDER THIS AGREEMENT.
17.2 Exceptions to Limitations of Liability. NOTHING IN SECTION 17.1(B) SHALL
--------------------------------------
LIMIT (A) RAZORSTREAM'S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN ARTICLE 18
(INDEMNIFICATION), OR (B) EITHER PARTY'S LIABILITY FOR A MATERIAL BREACH OF ANY
PROVISIONS OF THIS AGREEMENT RELATING TO DISCLOSURE OR MISUSE OF CONFIDENTIAL
INFORMATION, OR (C) DAMAGES RESULTING FROM A PARTY'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
18. INDEMNIFICATION.
RazorStream shall defend, indemnify and hold harmless Company and its Related
Parties (collectively, the "Indemnified Parties") from and against any and all
-------------------
Liabilities relating to any Claim against the Indemnified Parties arising out
of, in connection with, or based on (a) an allegation that the Technology
(including any Source Code thereof), Third Party Software, Hosting Service or
any Deliverable (collectively, "RazorStream Product(s)"), or the use thereof in
----------------------
accordance with this Agreement, infringes any Intellectual Property Rights of
any third party, (b) a breach of any representation, warranty, covenant, or
other term or condition of this Agreement by RazorStream, (c) the conduct of
RazorStream's business, or (d) the negligent acts or omissions, or intentional
misconduct of RazorStream or its Related Parties related to this Agreement;
provided however that (i) Company shall provide RazorStream with prompt notice
of the Claim giving rise to such obligation (but failure by Company to provide
prompt notice of a Claim shall not relieve RazorStream of its obligations under
this Section, except to the extent that RazorStream is materially prejudiced by
such failure); (ii) RazorStream shall have control of the defense and of all
negotiations for settlement of such Claim (provided that RazorStream shall not
enter into a settlement or compromise of any such Claim that would adversely
affect any Indemnified Parties' rights hereunder or that would impose an
unindemnified monetary obligation on any of the Indemnified Parties, or require
an admission of fault, wrongdoing, or liability by any of the Indemnified
Parties, without Company's prior written consent); (iii) Company shall cooperate
with RazorStream in the defense or settlement of any such Claim, and RazorStream
shall reimburse Company for the reasonable costs associated with such
cooperation, and (iv) with respect to subsection (a) hereof only, Company shall
not have (1) made any unauthorized changes or modifications to the RazorStream
Product (unless the modification constitutes normal installation, use, repair,
replacement, or addition of RazorStream-provided items for the RazorStream
Product), (2) used the RazorStream Product in combination with other items not
provided by RazorStream (unless RazorStream specifically recommended or approved
them all as a combination, the combination is with an item in the hardware or
software operating
-14-
environment for the RazorStream Product or is reasonably contemplated by the
Specifications, or the specific combination would be necessary for use in the
normal course of events in connection with such RazorStream Product), or (3)
modified the Source Code of the Technology where such modification (rather than
the base Source Code) was the sole, direct, and proximate cause of the
infringement. In the event of such infringement, in addition to RazorStream's
indemnity obligations above, RazorStream may replace, in whole or in part, the
RazorStream Product with a substantially compatible and functionally equivalent
product or service or modify the RazorStream Product to avoid the infringement
(provided, however, that in each case such RazorStream Product must continue to
comply with the Specifications without any material decrease in performance),
obtain for Company the right to continue using the RazorStream Products, or, if
such remedies are not reasonably available, RazorStream will return all amounts
paid by Company with respect to such RazorStream Products, including without
limitation amounts paid with respect to Support Services or other services
relating to such RazorStream Products, and accept its/their return. RazorStream
shall promptly reimburse the Indemnified Parties for any Liabilities incurred in
connection with any such Claim. The Indemnified Parties may have their own
counsel participate in the defense of any such Claim, provided that the costs of
such counsel shall be borne by the Indemnified Parties.
19. NOTICE.
All notices under this Agreement shall be delivered by (a) depositing the notice
in the mail, using registered mail, return receipt requested, addressed to the
address below or to any other address as the Party may designate by providing
notice, (b) facsimile by using the telephone number set forth below or any other
telephone number as the Party may designate by providing notice, (c) overnight
delivery service addressed to the address below or to any other address as the
Party may designate by providing notice, or (d) hand delivery to the individual
designated below or to any other individual as the Party may designate by
providing notice. The notice shall be deemed received (i) if by registered
mail, four (4) days after the notice's deposit in the mail, (ii) if by
facsimile, on the date the notice is delivered with electronic confirmation of
receipt, (iii) if by overnight delivery service, one business day after deposit
with the overnight courier, and (iv) if by hand delivery, on the date of hand
delivery.
Notices to RazorStream: Notices to Company:
RazorStream, LLC VMdirect, L.L.C.
0000 Xxxx Xxxxxxx Xxxx 0000 Xxxx Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000 Xxx Xxxxx, Xxxxxx 00000
Attn: President Attn: Manager
Facsimile: Facsimile:
20. GOVERNING LAW; DISPUTE RESOLUTION.
This Agreement shall be governed by and construed under the laws of the State of
Nevada, notwithstanding its conflicts of law principles. The Parties agree that
exclusive venue for any dispute arising under or in connection with this
Agreement shall be in the state courts of Nevada or federal district courts of
the United States located in Las Vegas, Nevada. Each Party irrevocably consents
to the exclusive personal jurisdiction of such courts. THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT,
PROCEEDING, CLAIM OR COUNTERCLAIM ARISING UNDER OR IN RELATION TO THIS
AGREEMENT.
-15-
21. GENERAL.
21.1 Amendment and Restatement of Original Agreement. The parties acknowledge
-----------------------------------------------
and agree that, as of the Effective Date, the Original Agreement shall be
amended and restated in its entirety on the terms set forth herein.
21.2 Entire Agreement. This Agreement sets forth the entire agreement and
-----------------
understanding of the Parties relating to the subject matter herein and merges
and supersedes all prior agreements, writings, commitments, discussions and
terms. Failure by either Party to enforce any provision of this Agreement will
not be deemed a waiver of future enforcement of that or any other provision. No
delay or omission by either Party to exercise any right or power will impair any
such right or power or be construed to be a waiver thereof.
21.3 Force Majeure. Subject to RazorStream's obligations under Article 9,
--------------
neither Party is responsible for delays or failures in performance resulting
from acts of God, strikes, lockouts, riots, acts of war and terrorism,
embargoes, unanticipated changes in governmental regulations, epidemics, fire,
communication line failures, power failures, earthquakes, other disasters or any
other reason where failure to perform is beyond the control of, and not caused
by, the non-performing Party or its vendors or suppliers (each, an event of
"Force Majeure"). If a claim by a Party for release of its obligations under
--------------
this Section exceeds thirty (30) days, then the other Party has the right to
terminate this Agreement. Neither Party is entitled to relief under this
Section to the extent that any event otherwise constituting an event of Force
Majeure results from the negligence or fault of the applicable Party or its
vendors, service providers or suppliers.
21.4 No Construction Against Drafter. This Agreement shall be construed
----------------------------------
within its fair meaning and no inference shall be drawn against the drafting
Party in interpreting this Agreement.
21.5 Amendment; Waiver. This Agreement may not be modified or amended, except
-----------------
by written instrument executed by an authorized representative of both Parties.
No change, waiver, or discharge hereof shall be valid unless in writing and
signed by an authorized representative of the Party against which such change,
waiver, or discharge is sought to be enforced.
21.6 Assignment. This Agreement may not be assigned (including by operation
----------
of law or change of control) by either Party without the prior written consent
of the other, except that either Party shall have the right to assign this
Agreement without prior written consent to (a) a then-current Affiliate of such
Party, or (b) any successor entity in the event of such Party's transfer of all
or substantially all of its assets, merger, spin-off, consolidation,
reorganization or other business combination. Any attempted assignment in
violation of this Section shall be void. This Agreement shall be binding upon
and shall inure to the benefit of the Parties hereto and their permitted
successors and assigns.
21.7 Subcontracting. RazorStream shall not be permitted to subcontract any or
--------------
all of its obligations under this Agreement to any third party without the prior
written consent of Company. Notwithstanding the foregoing sentence, RazorStream
shall be permitted to subcontract, without prior written consent, any services
related to hosting or third party Internet service providers, so long as notice
is provided as required by Section 8.4. Notwithstanding any permitted delegation
or subcontracting any of its obligations under this Agreement, RazorStream shall
be responsible for fulfilling all of its responsibilities under the Agreement
and ensuring that all of Company's requirements as defined under this Agreement
are met.
21.8 Severability. If any provision of the Agreement shall be held by a court
------------
competent jurisdiction to be illegal, invalid or unenforceable, the Parties
hereby authorize the court to modify such provision to the
-16-
minimum extent necessary to effectuate the Parties' intentions and the remaining
provisions shall remain in full force and effect.
21.9 Survival. Any provision of this Agreement which may reasonably and
--------
customarily be interpreted or construed as surviving the termination of the
Agreement, shall survive such termination of this Agreement for any reason,
including Articles/Sections 1, 2, 3.1 (to the extent of 3.1.1, 3.1.2, 3.1.5,
..3.1.6, and 3.1.7), 3.5, 4, 5, 7, 10, 12, 14, 16, 17, 18, 19, 20 and 21, and
Sections 3.1.3, 3.1.4, and 3.1.8 for the term of any licenses/sublicenses
granted by Company there under and any and all renewal terms.
21.10 Cumulative Remedies. Except as expressly provided otherwise in this
--------------------
Agreement, in addition to any remedies provided in this Agreement, the Parties
shall have all remedies provided at law or in equity. The rights and remedies
provided in this Agreement or otherwise under law shall be cumulative and the
exercise of any particular right or remedy shall not preclude the exercise of
any other rights or remedies in addition to, or as an alternative of, such right
or remedy, except as expressly provided otherwise in this Agreement.
21.11 Publicity. Neither Party shall issue any press release or public
---------
announcement or make any public disclosure (including promotional or marketing
material) regarding the existence or terms and conditions of this Agreement,
without the prior written consent of the other Party; provided that the
foregoing will not prohibit any disclosure to the extent required by applicable
securities laws or the rules of any stock exchange where a Party's securities
are traded.
21.12 Time of Essence. Time of performance is of the essence in this Agreement
---------------
and a substantial and material term hereof.
21.13 Counterparts. A copy of the signed original of this Agreement
------------
transmitted by facsimile machine will be binding on both Parties and have the
same force and effect as the signed original, and such documents may be executed
in any number of counterparts, each of which shall be considered an original.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AGREED:
Agreed to and executed by its Agreed to and executed by its
authorized representative: authorized representative:
RAZORSTREAM, LLC VMDIRECT, L.L.C.
By: By:
---------------------------------- ------------------------------------
Print Name: Print Name:
-------------------------- ----------------------------
Title: Title:
------------------------------- ---------------------------------
-17-
EXHIBIT A
---------
TO
LICENSE, HOSTING AND SERVICES AGREEMENT
TECHNOLOGY DESCRIPTION; DOCUMENTATION
TECHNOLOGY
----------
The Technology known as EVE (Extensible Video Engine), (i) used for, among other
matters, video-based Internet communication products and/or services, including,
without limitation, video e-mail, video instant messaging, live or pre-recorded
webcasting, digital vault storage and/or podcasting, including, without
limitation, for purposes of Internet-based social networking applications or
websites, and/or commercial products or applications, and transcoding, and (ii)
consisting of the modules, functionality, capabilities, specifications and
documentation all as more fully described in electronic format at the URL:
xxxx://xxx.xxxxxxx.xxx, as such URL is updated from time to time.
----------------------
TRADEMARKS
----------
See Schedule I to this Exhibit A.
EXHIBIT B
---------
TO
LICENSE, HOSTING AND SERVICES AGREEMENT
STATEMENT OF WORK
This Statement of Work ("SOW") No. ___ is entered into between VMdirect, L.L.C.
("COMPANY") and RazorStream, LLC ("RAZORSTREAM") as further identified below as
of the date of the later signature below. This SOW shall be governed by the
terms and conditions of the License, Hosting and Services Agreement entered into
by the parties on _________, 200_ (the "AGREEMENT"). Capitalized terms not
defined herein shall have the same meanings set forth in the Agreement.
1. Contact Information:
--------------------------------------------------------------------------------
"Company" "RazorStream"
------------------------ ------------------------- ---------------------------
Contact Name:
------------------------ ------------------------- ---------------------------
Address:
------------------------ ------------------------- ---------------------------
Telephone No.:
------------------------ ------------------------- ---------------------------
Email Address:
--------------------------------------------------------------------------------
2. Term: The Professional Services to be rendered under this SOW shall
commence on _________________ and shall be completed no later than
_________________________.
3. Location of performance of the Professional Services:
4. Detailed description of the Professional Services:
5. Deliverables to be provided:
6. Project/Deliverables delivery schedule:
7. Payment Terms: The following payment terms apply to this SOW (check those
that are applicable and list the rates and charges):
a. Hourly xxxx rate (Time and Materials): ______ Hourly Xxxx Rate: ______
b. Fixed Price: ______ Total Project Cost: ______
c. Completion of Professional Services by milestones: ______ List all
milestones and the cost for each milestone:
d. Other: _____ Describe:
Total amount payable for all Professional Services/Deliverables under this SOW:
$
7. Additional Terms and Conditions:
a. Service level agreements:
b. Reporting requirements:
IN WITNESS WHEREOF, the Parties have duly executed this SOW as of the date of
the later signature below.
RAZORSTREAM, LLC VMDIRECT, L.L.C.
By: By:
---------------------------------- ------------------------------------
Print Name: Print Name:
-------------------------- ----------------------------
Title: Title:
------------------------------- ---------------------------------
Date: Date:
------------------------------- ---------------------------------
EXHIBIT C
---------
TO
LICENSE, HOSTING AND SERVICES AGREEMENT
SUPPORT SERVICES
1. STANDARD SUPPORT SERVICES.
During the Term, RazorStream will provide Company the following Support Services
for the Technology:
1.1 Corrections of all defects so that the Technology and Hosting Services
will operate as described in the Specifications.
1.2 Periodic updates of the Technology, and all enhancements to the
Technology (whether major or minor) developed by RazorStream from time to time.
RazorStream shall develop enhancements to the Technology as necessary in order
to keep current with the latest technical requirements applicable to the
Technology or as directed by Company from time to time.
1.3 Company is responsible for Tier I support. A telephone help desk ("Help
----
Desk") shall answer Company's Tier II calls twenty-four (24) hours a day, seven
----
(7) days a week, three hundred sixty-five days a year, and shall be fully
staffed between the hours of 8:00 a.m. and 8:00 p.m., Mountain Standard Time,
Monday through Friday, excluding federal and state holidays observed by
RazorStream ("Normal Business Hours"), to assist Company in using the Technology
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and to troubleshoot and resolve any (i) failure of the Technology and/or Hosting
Services to operate in accordance with its Specifications, and/or (ii) failure
or material delay in sending or receiving video e-mail and streaming services or
related data in connection with the Technology or Hosting Services (each, a
"Problem"). Outside of Normal Business Hours, RazorStream shall have qualified
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personnel available by beeper or cell phone to respond to Severity 1 and
Severity 2 Problems (as defined below). The Help Desk shall be staffed by
RazorStream with experienced personnel with technical qualifications and
specialized knowledge in the Technology and Hosting Services who are capable of
responding appropriately to Company's inquiries.
2. SERVICES NOT INCLUDED.
Except as otherwise provided in Section6.3 or elsewhere in the Agreement,
Support Services do not include custom programming services or training.
3. OBLIGATIONS OF COMPANY.
3.1 Company Contact. Upon completion of the implementation of the Technology
and Hosting Services, Company shall designate no more than 3 persons who will
serve as the contacts with respect to Support Services for Company ("Support
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Coordinators"). To the maximum extent practicable, Company's communications
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with RazorStream with respect to Support Services will be through the Support
Coordinator(s).
3.2 Installation. Subject to Section 9 (Releases) below, Company agrees to
authorize installation of all corrections of substantial defects, minor bug
fixes and updates, including any enhancements, for the Technology in accordance
with the instructions and in order of receipt from RazorStream, except that
nothing in this Agreement shall be construed to require Company to accept or
install a particular Technology Release where (i) Company reasonably believes
that installation of such Technology Release will have a material adverse effect
on the functioning or performance of Company's systems or networks
or will disrupt the receipt or processing of orders for Company Services by
Users; or (ii) such Technology Release does not conform to the Specifications
therefor, and, in any such case, notwithstanding any other provision of this
Agreement, Company's failure to install such Technology Release shall not reduce
or excuse RazorStream's Support Services obligations or permit additional
charges for such Support Services.
3.3 Facility and Personnel Access. Upon reasonable prior notice, Company
agrees to grant RazorStream access to Company's systems, facilities and/or
personnel concerned with the operation of the Technology as reasonably necessary
to enable RazorStream to provide the Support Services. Notwithstanding anything
herein to the contrary, RazorStream shall not remotely access any software,
hardware, computers, system or equipment or facilities of Company without prior
authorization from Company; provided, however, that Company shall reasonably
cooperate with RazorStream in the diagnosis of any defect. Any such remote
access by RazorStream shall at all times be subject to Company's then current IT
network access policies. Furthermore, RazorStream shall utilize any such
permitted remote access only for purposes of providing Support Services in
accordance with this Agreement. Company, in its sole discretion, may limit
remote access and may require RazorStream to comply with any security measures
implemented by Company with respect to any of Company's systems or networks.
3.4 Error Documentation. Company shall provide RazorStream with such
information as may be reasonably requested by RazorStream in order to enable
RazorStream to reproduce the Problem.
4. DESIGNATION OF SUPPORT COORDINATORS; TROUBLE REPORTS.
Company may change its Support Coordinators from time to time by providing
notice to RazorStream. Each Support Coordinator(s) shall use reasonable efforts
to supply RazorStream with verifiable and reproducible evidence of Problems
accompanied by a "Trouble Report." The "Trouble Report" shall include the
---------------
following information: (a) Company's assessment of the severity level of the
Problem, (b) a reasonably detailed description of the Problem, and (c)
instructions on how to reproduce the Problem (if reasonably known), together
with any other information reasonably available that helps explain the Problem.
The date and time that the Trouble Report is submitted by Company shall be noted
by RazorStream's Help Desk.
5. SUPPORT SERVICES; REPORTING OF PROBLEMS.
RazorStream shall provide Support Services in order to (a) eliminate the effect
on Company of the Problem, and (b) repair or replace the affected Technology or
Hosting Services so that the same conform in all material respects to the
Documentation, Specifications, and with the requirements of the Agreement,
without imposing additional expense or an unreasonable burden upon Company, in
compliance herewith. All Problems reported by Company shall be classified in
good faith by the Support Coordinator that is reporting the Problem as follows:
1. Severity 1 means that the Technology cannot be accessed or is
-----------
totally unusable and/or that the Problem results in a system or business
operation becoming non-operational (going down).
2. Severity 2 means that significant functionality of the Technology is
----------
affected and/or that the Problem significantly impacts a production system
or business operation, but such Problem does not result in a system or
business operation becoming non-operational (going down).
3. Severity 3 means that minor functionality of the Technology is
-----------
affected, that the Technology is not operating materially in accordance
with the Specifications and/or that the Problem impacts or detracts from
the quality or performance of a production system or business operation,
but such Problem does not result in a system or business operation becoming
non-operational (going down).
4. Severity 4 means that there is minimal functionality impact that is
-----------
not material to a production system or business operation, and such Problem
does not result in a system or business operation becoming non-operational
(going down), but the Technology does not operate in accordance with the
Specifications.
6. RESPONSE TIMES; RESOLUTION OF PROBLEMS.
6.1 Upon receipt of a Trouble Report, RazorStream will respond to the
Support Coordinator by telephone or email to acknowledge receipt of the Trouble
Report: (a) within 15 minutes for Severity 1 Problems, (b) within 1 hour for
Severity 2 Problems, and (c) within one business day for Severity 3 and Severity
4 Problems. For Severity 1 and Severity 2 Problems, RazorStream shall designate
a senior engineer with appropriate experience and background as the emergency
representative for Company ("Emergency Representative"). RazorStream shall
-------------------------
provide Company with 24 hour per day, seven days per week pager access to the
Emergency Representative. After acknowledgment of the Problem, RazorStream and
the Support Coordinator may mutually agree to assign a different severity level,
but if such agreement cannot be reached after a brief, good faith discussion,
then the Support Coordinator's classification of the Problem shall govern.
After acknowledgment of the Problem as required hereby, RazorStream shall
resolve Problems as follows:
1. Severity 1 Problems. RazorStream shall immediately commence
---------------------
diagnosis of the Problem. RazorStream shall use its best efforts and work
diligently 24 hours per day, 7 days per week, to diagnose the Problem and
provide a temporary fix or workaround to the Problem as soon as possible,
but in no event later than 48 hours after the root cause of the problem has
been determined. RazorStream shall provide a permanent correction as part
of its next Technology Release which shall be made available within 6
months of the Support Coordinator's report of the Problem. RazorStream
shall provide to Company, within 15 days of the release of the temporary
fix or workaround, a written plan detailing the proposed final solution for
the Problem that shall be incorporated in the next Technology Release of
the Technology.
2. Severity 2 Problems. RazorStream shall immediately commence
---------------------
diagnosis of the Problem. RazorStream shall use its best efforts and work
diligently 24 hours per day, 7 days per week, to diagnose the Problem and
provide a temporary fix or workaround to the Problem as soon as possible
and will continue until the problem is resolved. RazorStream shall provide
a permanent correction as part of its next Technology Release which shall
be made available within 6 months of the Support Coordinator's report of
the Problem. RazorStream shall provide to Company, within 15 days of the
release of the temporary fix or workaround, a written plan detailing the
proposed final solution for the Problem that shall be incorporated in the
next Technology Release of the Technology.
3. Severity 3 Problems. RazorStream shall commence a diagnosis of the
--------------------
Problem within one business day. RazorStream shall work diligently during
Normal Business Hours to diagnose the Problem and provide a temporary fix
or workaround to the Problem as soon as possible but in no event later than
10 business days' from RazorStream's receipt of the Trouble Report.
RazorStream shall provide a permanent correction as part of its next
Technology Release which shall be made available within 6 months of the
Support Coordinator's report of the Problem.
RazorStream shall provide to Company, within 15 days of the release of the
temporary fix or workaround, a written plan detailing the proposed final
solution for the Problem that shall be incorporated in the next Technology
Release of the Technology.
4. Severity 4 Problems. RazorStream shall commence a diagnosis of the
--------------------
Problem within 5 business days. RazorStream shall not be required to
provide a temporary fix or workaround to the Problem, but shall provide a
permanent correction as part of its next Technology Release but in no event
later than 6 months' from RazorStream's receipt of the Trouble Report.
RazorStream shall provide to Company, within 15 days of RazorStream's
receipt of the Trouble Report, a written plan detailing the proposed final
solution for the Problem that shall be incorporated in the next Technology
Release of the Technology.
6.2 Communication Regarding Progress. RazorStream shall provide the
Company with daily written reports regarding its progress in diagnosing and
fixing Severity 1 and Severity 2 Problems, and with monthly written reports
regarding its progress in diagnosing and fixing Severity 3 and Severity 4
Problems. Such reports shall be reasonably detailed to inform the Company
of the substance and scope of the Problem as well as an estimated time to
implement a fix or workaround.
7. OTHER PROVIDERS.
RazorStream acknowledges that Company will be installing and using the
Technology together with equipment and software provided by other vendors and
providers ("Other Providers"). RazorStream diligently shall work with Other
----------------
Providers to (a) determine whether the Technology and/or Hosting Services is the
cause of a reported Problem, (b) implement a resolution to the extent that such
Problem is partially or wholly related to the Technology, and (c) reasonably
assist such Other Providers so that they may discharge their warranty and
support obligations. If the software or equipment provided by the Other
Provider is the sole, direct, and proximate cause of a malfunction or problem,
then RazorStream's sole obligation will be to comply with this Section. For
purposes of clarity, RazorStream shall continue providing Support Services under
this Agreement notwithstanding whether an Other Provider caused such Problem in
the Technology, provided that such Problem is reasonably curable.
8. ADDITIONAL REMEDIES.
Notwithstanding the foregoing or anything to the contrary in the Agreement, if
RazorStream is unable to correct a Problem within five (5) days after the
required timeframe therefor, regardless of the level of its effort, then Company
shall have the right (without notice of default or further opportunity to cure
and in addition to any other available remedy), at its option, to (a) terminate
this Agreement and/or (b) withhold any payments due RazorStream.
9. RELEASES.
During the Term, RazorStream promptly shall notify Company of all Technology
Releases developed by or available from or through RazorStream. Such notice
shall reasonably detail any Problems that the Technology Release corrects, as
well as all new features or functionality contained in the Technology Release.
All Technology Releases shall be made available to Company at no additional
charge during the Term; provided that Company has paid all undisputed Fees due.
RazorStream shall support each Technology Release for a minimum period of six
months and shall in any event support the most recent and, for a minimum period
of one year, the immediately preceding Technology Release. Company shall have a
minimum period of 60 days from receipt of notice a Technology Release with
reasonably detailed installation instructions to authorize installation of any
Technology Release. Subject to the terms and
conditions herein, if Company elects not to authorize installation of a
Technology Release within such period, RazorStream shall have no obligation to
correct any Problem that the installation of the Technology Release would have
corrected, and each such Problem shall be deemed excluded from the Support
Services.
Subject to the conditions listed in this paragraph, Company shall authorize
installation of all Technology Releases that fix a Severity 1 or Severity 2
Problem. Nothing in this Section shall be construed to require Company to
accept or install any particular Technology Release that fails to meet the
requirements of the following sentence, in which case RazorStream shall support
the current version of the Technology used by Company. RazorStream represents
and warrants that all Technology Releases shall (a) be fully compatible with the
prior Technology Release, such that any and all software that is interoperable
with the prior Technology Release shall be interoperable to the same extent with
the then-current Technology Release without Company having to make material
expenditures unless agreed upon by the Parties, (b) not cause any diminution in
functionality, appearance or performance of the Technology or Hosting Services
or non-compliance with material Specifications or the immediately prior
Technology Release, and (c) be provided to Company so that Company is not
required to pay extra fees for new functionality or features in the Technology
Release that it does not desire. RazorStream shall provide Company with any and
all changes and additions to, or reissues of, applicable Specifications and
Documentation as necessary to keep the Specifications and Documentation current
with the latest release of the Technology in use by Company. Upon acceptance of
such revised Specifications by Company, they automatically shall be deemed
attached to Exhibit A.
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EXHIBIT D
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TO
LICENSE, HOSTING AND SERVICES AGREEMENT
FEES
The following fees and payments shall be fixed and remain in effect during the
Term of the Agreement:
1. IMPLEMENTATION SERVICES FEE. Company shall pay to RazorStream a
one-time initial implementation services fee equal to $100,000 (the
"Initial Implementation Services Fee"), which is intended to cover the
-------------------------------------
Implementation Services for the first 20,000 Subscriber Accounts. The Parties
acknowledge and agree that the Initial Implementation Services fee is hereby
waived as of the Effective Date. For Subscriber Accounts that exceed the
initial 20,000 base accounts, Company shall pay RazorStream a one-time
implementation services fee (the "Additional Implementation Services Fee", and
--------------------------------------
together with the Initial Implementation Services Fee, the "Implementation
--------------
Services Fee") of $5 per Subscriber Account, and Company shall give 45 days
-------------
advance notice to activate any such excess Subscriber Accounts, provided,
however, that Subscriber Accounts to be implemented by Company hereunder in
excess of the initial 20,000 base accounts may only be acquired by Company in
20,000 Subscriber Account blocks, irrespective of the actual number of
Subscriber Accounts Company may anticipate from time to time.
2. NON-RECURRING ENGINEERING FEES. Company shall, from time to time,
pay RazorStream for non-recurring engineering fees (the "Non-Recurring
-------------
Engineering Fees") to customize and engineer the Technology to the
-----------------
Specifications, as set forth on the applicable SOW, including customization of
Company product offerings, and such other purposes as Company may direct through
a SOW developed with RazorStream. Any use of Non-Recurring Engineering Fees in
a manner not described and included in the approved product plan shall require
the prior approval of Company, and shall be billed at $200 per hour. The first
$200,000 of Non-Recurring Engineering Fees shall be deemed fully earned as of
the date of execution of this Agreement.
3. ADDITIONAL FEE. During the Term, and in addition to the
Implementation Services Fee and the Non-Recurring Engineering Fees, Company
shall pay to RazorStream continuing payment amounts (the "Additional Fee") as
--------------
follows: (a) ten percent (10%) of Company's total gross revenue from all active
Subscriber Accounts billed at $25.00 or more per month total gross subscription,
with a minimum amount of $3 per each such Subscriber Account per month; (b)
terms to be mutually agreed upon by Parties for all Subscriber Accounts billed
at less than $25.00 per month; and (c) terms to be mutually agreed upon by
Parties for all advertising-based "free" Subscriber Accounts, provided, however
that such terms shall provide for a minimum amount of $0.25 per each such
Subscriber Account per month. In addition, first month payments on Subscriber
Accounts may be promotionally priced and the terms of such incentives shall be
mutually agreed upon by Company and RazorStream. Royalty payments shall be
calculated on a monthly basis and shall be paid within forty-five (45) days of
the end of each month.
4. MINIMUM GUARANTEED PAYMENT. During the Term, Company shall make a
minimum non-refundable guaranteed payment (the "Minimum Guaranteed Payment") of
--------------------------
$50,000 per month, commencing on the first day of the month immediately
following the Effective Date. Minimum Guaranteed Payments shall be
non-refundable, but shall be credited against, and may entirely satisfy, or
exceed, actual Additional Fees owing.
5. MAINTENANCE FEE. In the event this Agreement expires or is otherwise
terminated, and for so long as RazorStream continues to provide the Support
Services set forth in Exhibit C, Company shall be required to pay a minimum
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maintenance and support fee based on the greater of (i) industry standards for
maintenance and support fees existing at the time of expiration or termination,
and (ii) twenty percent (20%) of the aggregate monthly value of the license fee
(or "Additional Fee" whichever is applicable) charged by
RazorStream to a third party in the last license agreement entered into by
RazorStream prior to such expiration or termination.
6. FEES APPLICABLE TO INDIVIDUAL WEBSITES. For the avoidance of doubt,
the Fees set forth in this Exhibit D shall apply independently to each
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individual website operated by Company or any third party authorized thereby (as
set forth in the Agreement), and no Fees charged with respect to any individual
website, and no Subscriber Accounts applied with respect to any individual
website, shall be aggregated with any Fees or Subscriber Accounts, respectively,
applied to any other website.
EXHIBIT E
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TO
LICENSE, HOSTING AND SERVICES AGREEMENT
THIRD PARTY SOFTWARE
[LIST HERE, INCLUDING APPLICABLE TERMS]
EXHIBIT F
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TO
LICENSE, HOSTING AND SERVICES AGREEMENT
COMPANY AND THIRD PARTY WEBSITES
1. xxx.xxxxxxxx.xxx
