MASTER SERVICES AGREEMENT - Confidential
Exhibit
10.21
This
Master Services Agreement and attached Schedules (collectively, the "Agreement")
is entered into on this 11th day
of July, 2008 (the
"Effective Date") between Ripple6, Inc., with a principal place of business at
000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000 ("Ripple6") and Sahara Media, Inc.,
with a principal place of business at 00 Xxxxxxxx Xx, XX, XX 10013("Client")
(each, a
"Party" and, collectively, the "Parties").
WHEREAS,
Ripple6 owns the Ripple6 Platform (as defined below); and
XXXXX.XX,
Client operates the Client Site (defined below);
WHEREAS,
Client has requested that Ripple6 customize and host the Site (defined below);
and
WHEREAS,
Ripple6 has agreed to provide such services on the terms and conditions set
forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
set forth, and other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the Parties hereto, intending to be legally
bound hereby, do hereby agree as follows:
1. XXXXXXXXXXX.Xx
used in this Agreement, the following terms have the respective meanings
set forth below:
"Confidential
Information" means all information exchanged by one Party to the other
Party under this Agreement. For the avoidance of doubt, Confidential Information
of Ripple6 includes, but is not limited to, all Ripple6 Intellectual
Property.
"Database" means an electronic database
consisting of data provided by users of the Site and actions related to such
users' use of the Site.
"Development Fees"
has the meaning set forth in Section 3.1
"Development
Services" has the meaning set forth in Section 2.1.
"Fees" means the Development Fees, the Hosting
Fees and the Maintenance and Support Fees.
"Ongoing Services
Fees" has the meaning set forth in Section 3.2.
"Ongoing Services"
has the meaning set forth in Section 2.2.
"Initial Term"
has the meaning set forth in section 10.1.
"Intellectual
Property Rights" means all intellectual and industrial property rights,
including, without limitation, copyrights, mask work rights, moral rights, trade
secrets, patent rights, rights in inventions, trademarks, trade names, and
service marks (including applications for, and registrations, extensions,
renewals, and re-issuance of the foregoing).
"Maintenance and
Support Fees" has the meaning set forth in Section 3.3.
"Maintenance and
Support Services" has the meaning set forth in
Section 2.3.
"Renewal Term"
has the meaning set forth in Section WA.
"Ripple6
Intellectual Property" has the meaning set forth in Section
5.1.
1
"Sahara Media Intellectual Property"
has the meaning set forth in Section
5.4.
"Ripple6 Platform" means
certain proprietary technology and software
(object code and
source
code) and tools
owned by Ripple6, including enhancements, modifications, improvements and
derivative works thereof, and related methodologies, processes, know-how and all
Intellectual Property in and to the foregoing, and all derivative works and
improvements thereto.
"Site" means
(_____).
"Services"
means the Development Services, the Ongoing Services, the Maintenance and
Support Services, and any other services provided under this
Agreement.
"Term" means the Initial Term and all
Renewal Terms.
"Work Product" means
all work product developed by or on behalf of Ripple6 as a result of the
Services, all Intellectual Property Rights in
and to such work product, and all derivative works and improvements I
hereto.
2. SERVICES.
2.1
Ripple6 will develop arid customize the Site in accordance with the
specifications set forth on Schedule
1
attached hereto (the "Development
Services"). The Site shall include "Powered by Ripple6" branding and
the
Xxxx in the size and position of the branding and logo referred to in
Schedule
1.
During the Term, the Parties may agree in writing from time to time to
have Ripple6 provide development services
in addition to those set forth on Schedule
1 for an additional cost.
2.2
Ripple6 shall host and manage the Site for Client and shall provide additional
ongoing services Ihr the Site
including, without limitation, Ripple analytics, account management and
site enhancements, all in accordance with Schedule
2 attached hereto (the "Ongoing
Services").
2.3
Ripple6 shall provide Client with maintenance and support services
in accordance with Schedule 3
attached hereto (the "Maintenance and Support
Services").
3. FEES AND
PAYMENT
3.1 In
consideration for the Development Services, Client shall pay Ripple6 the fees
set forth in Schedule
1 (the
"Development
Fees").
3.2 in consideration for the Hosting Services,
Client shall pay Ripple6 the fees set forth in Schedule
2 (the
"Ongoing Services
Fees").
3.3 In consideration for the Support and
Maintenance and Support Services, Client shall pay
Ripple6 the fees
set forth
in Schedule 3 (the
"Maintenance and Support
Fees").
3.4 Unless otherwise set forth in the
applicable Schedule, the Fees shall he due within thirty (30) days of the date of invoice. Past due amounts shall bear interest at the rate of one percent (1 %) per month.
4. ADVERTISING
AND REVENUE SHARE. During
the Term, the Parties may, from time to
time, agree to conduct
certain
marketing programs based on the Ripple6 Platform. For each such marketing program, the Parties shall
agree in
writing to the applicable revenue share.
2
5. INTELLECTUAL
PROPERTY
5.1
As between the Parties, Rippled owns all right, title and interest in and to the
Work Product, the Rippled Platform and the Xxxx (collectively, the "Ripple6 Intellectual Property").
Client shall have no right to use the Rippled Intellectual Property for
any purpose other than as expressly provided in this Agreement.
5.2 Client
hereby grants to Rippled a nonexclusive, nontransferable, personal license to
use the Rippled
Intellectual Property solely in connection with the Site.
5.3 Client
shall own all right, title and interest in and to the Database and all data
contained therein. Client hereby grants Rippled a non-exclusive, royalty-free,
fully paid up license to (i) use the Database and all data contained therein as
necessary to provide the Services, (ii) aggregate the data contained in the
Database (the "Aggregate Data"), share such Aggregate Data in a non-personally
identifiable manner to third parties. All Non-Aggregated Data and Data which may
contain personally-identifiable information is for Internal Use only and is
limited to the services contemplated herein.
5.4 As
between the Parties, Sahara Media owns all right, title and interest in and to
all trademarks, service marks, logos and brands related to Honey, Honey
Magazine, The Hive and other Sahara Media properties (collectively, the "Sahara
Media Intellectual Property"). Ripple 6 shall have no right to use the Sahara
Media Intellectual Property for any purpose other than as expressly provided in
this Agreement.
5.5 Rippled
hereby grants Client a non-exclusive, non-transferrable right to use the Rippled
brand name and
Xxxx for marketing purposes to strategic partners.
6. REPRESENTATIONS AND
WARRANTIES.
6.1 Each
Party represents and warrants that (i) it is duly authorized to execute and
perform its obligations under this Agreement; (ii) this Agreement is a valid and
binding agreement enforceable against it according to its terms; (iii) the
execution and performance of this Agreement does not, and will not, violate or
conflict with the terms of any existing agreement or understanding to which it
is a Party, including, but not limited to, any non-disclosure, non-compctc or
other similar obligations to any other person or entity; and (iv) the execution
and performance of this Agreement does not, and will not, violate or conflict
with any law, rule, regulation, judgment or order of any court or other
adjudicative entity binding on it.
6.2 Rippled
represents and warrants that the Services provided under this Agreement shall be
performed
by qualified individuals, in a professional and workmanlike manner.
6.3
EXCEPT AS EXPRESSLY PROVIDED HEREIN, RIPPLE6 MAKES NO REPRESENTATIONS OR
WARRANTIES WITH RESPECT TO THIS AGREEMENT OR THE SERVICES, AND ALL IMPLIED
REPRESENTATIONS AND WARRANTIES ARE EXPRESSLY DISCLAIMED, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT.
3
7. CONFIDENTIALITY.
7.1
Each Party shall maintain the Confidential Information of the other Party
in strict confidence, taking the same precautions that it uses to protect its
own Confidential Information, but in no event less than reasonable care to
prevent the unauthorized disclosure of any part of the Confidential
Information.
7.2
In the event the receiving Party becomes or may become legally compelled to
disclose any Confidential Information (whether by deposition, interrogatory,
request for documents, subpoena, civil investigative demand or other process or
otherwise), the receiving Party shall provide the disclosing Party with prompt
written notice of such requirement so that the disclosing Party may seek a
protective order or other appropriate remedy and/or waive compliance with the
terms of this Section
7. lii
the event that such protective order or other remedy is not obtained, or that
the disclosing Party waives compliance with the provisions hereof, the receiving
Party shall furnish only that portion of Confidential Information which it is
legally required to disclose, and shall use its best efforts to insure that
confidential treatment shall be afforded such disclosed portion of Confidential
Information.
7.3
The receiving Party acknowledges that in the event of a breach of the provisions
of this Section
7 by the receiving Party, substantial injury could result to
the disclosing Party and money damages will not be a sufficient remedy for such
breach. Therefore, in the event that the receiving Party engages in, or
threatens to engage in, any act which violates any provision of this Section 7, the
disclosing Party shall be entitled to, in addition to all other remedies which
may be available to it under law, seek injunctive relief (including, without
limitation, temporary restraining orders, or preliminary or permanent
injunctions) and specific enforcement of the terms of this Section 7. The disclosing
Party shall not be required to post a bond or other security in connection with
the granting of any such relief.
7.4
Upon the expiration or earlier termination of this Agreement, or at any time
upon the receiving Party's request, the receiving Party shall return to the
disclosing Party all Confidential Information in its possession.
8.
INDEMNIFICATION.
Ripple6 shall indemnify, defend and hold harmless Client from and against
any claim, suit or proceeding brought by a third party against Client to the
extent that it is based on or arises from any assertion that any Work Product
infringes or misappropriates any Intellectual Property Right of any third party,
provided that (I) Client promptly notifies Ripple6 in writing of any claim, suit
or proceeding, (ii) Client fully cooperates with Ripple6 with regard to the
defense of any claim, suit or proceeding, and (iii) such claim, suit or
proceeding does not arise as a result of any specifications or instructions
provided by Client to Ripple6 . Ripple6 shall have full control of any such
claim, suit or proceeding and the authority to settle or otherwise dispose of
any such claim, suit of proceeding.
9. LIMITATION
OF LIABILITY. 1N NO EVENT SHALL R1PPLE6 BE LIABLE FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING,
BUT NOT LIMITED TO, LOST PROF/TS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
REPUTATION OR GOODWILL, OR COSTS OF SUBSTITUTE SERVICES) WHICH THE CLIENT OR ANY
OTHER PERSON OR ENTITY MAY INCUR OR EXPERIENCE DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, EVEN IF RIPPLES HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION
OF THIS AGREEMENT, THE AGGREGATE LIABILITY OF RIPPLE 6 FOR DAMAGES FOR ANY CAUSE
WHATSOEVER, DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF THIS AGREEMENT
OR THE SERVICES, AND REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE
TOTAL FEES PAID BY CLIENT TO RIPPLED UNDER THIS AGREEMENT DURING THE TWF.I NE
(12) MONTHS IMMEDIATELY PRECEDING SUCH CLAIM. THIS LIMITATION OF LIABILITY SHALL
NOT BE ENFORCEABLE IN THE EVENT THAT LIABILITY, LOSS, DAMAGE, DELAY OR OTHER
INJURY OCCURS DUE TO GROSS NEGLIGENCE BY RIPPLE6, ITS EMPLOYEES OR
AGENTS.
4
10. TERM AND
TERMINATION
10.1
The term of this Agreement is one (1) year, commencing on the Effective
Date (the "Initial Term"). Upon expiration of the
Initial Term, this Agreement shall automatically renew for consecutive one (1)
year terms (each, a "Renewal
Term") unless either Party provides the other Party with written notice
of its intention not to renew this Agreement within sixty (60) days prior to the
expiration of the then current term.
10.2 In
the event of a default, the non-defaulting Party may terminate this Agreement
upon the defaulting Party's failure to cure such default within thirty (30) days
of written notice of such default. An event of default shall include, but is not
limited to, the following events: (i) Client's failure to pay any sum of money
due by it hereunder; (ii) breach by a Party in performing any of its other
material obligations hereunder; or (iii) a Party becomes the subject of any
bankruptcy, insolvency, or reorganization proceeding, or generally seeks relief
from its debts, or becomes or is declared, by any court of competent
jurisdiction, to be insolvent.
10.3
Except as expressly provided herein, all rights granted by the Parties
shall cease upon the expiration or earlier termination of this Agreement.
Sections 1, 5, 6, 7, 8, 9, this Section 10.3 and Section 11 shall survive the
expiration or earlier termination of this Agreement.
11. MISCELLANEOUS
11.1 The
Parties expressly understand and agree that each Party is an independent
contractor in the performance of each and every part of this Agreement, and is
solely responsible for all of its employees and agents and its labor costs and
expenses arising in connection therewith. Neither Party nor its agents or
employees are the representatives of the other Party for any purpose, and
neither Party has the power or authority as agent, employee or any other
capacity to represent, act for, hind or otherwise create or assume any
obligation on behalf of the other Party for any purpose whatsoever.
11.2
All notices, requests, demands, waivers and other communications required
or permitted to be given under this Agreement shall be in writing and shall be
delivered by hand, by overnight courier, by fax with confirming letter mailed
under the conditions described herein, or by registered or certified mail,
postage prepaid, return receipt requested, to the address of the other Party
first set forth above. Notice so given shall be deemed effective when received.
Copies of all notices sent to Ripple6 shall he sent to Xxxxxxxxxx Xxxxxxx PC, 65
Xxxxxxxxxx Avenue, Roseland, New Jersey, Attention: Xxxxxxx Xxxxxxx,
Esq.
11.3
This Agreement may not be assigned by either Party without the prior written
consent of the other, such consent is not to be unreasonable held or delayed and
any attempt to assign any rights, duties or obligations which arise under this
Agreement without such consent shall be null and void. Notwithstanding the
foregoing, Ripple6 may assign this Agreement to any person or entity acquiring
all or substantially all of its assets or which is a successor by merger to
Ripple6. This Agreement will be binding
upon and will inure to the benefit of the Parties and their respective permitted
successors and assignees.
5
11.4
This Agreement, and all matters arising directly or indirectly from
this Agreement, shall be governed by and construed in accordance with the laws
of the State of New York, without regard to its conflict of laws rules
applicable to contracts to be performed entirely within the State of New York.
For all such matters, each Party submits to the exclusive jurisdiction of the
state and federal courts located in the State of New York and waives any
jurisdictional, venue, or inconvenient forum objections to such
courts.
11.5
Neither Party shall be liable for any
failure or delay in the performance of any of its obligations (other than the
payment of fees) if prevented from doing so by fire, flood, terrorism, strike,
war, restraints of government, utility or communications failure or
interruption, failure of third party vendor, Internet slow-down or failure,
computer hacker or any other cause beyond the affected Party's reasonable
control, provided that the affected Party has not contributed in any way to such
event.
11.6
If any provision of this Agreement shall be held to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall apply only
to such provision and shall not in any manner affect or render illegal, invalid
or unenforceable any other provision of this Agreement, and that provision and
this Agreement generally shall be reformed, construed and enforced so as to most
nearly give lawful effect to the intent of the Parties as expressed in this
Agreement.
11.7 This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but hich
together shall constitute one and the same instrument.
11.8 The
headings preceding the various paragraphs and subparagraphs of this Agreement
are intended solely for the convenience of the Parties and shall not be deemed
relevant in the construction of this Agreement or its terms.
11.9
This Agreement constitutes the entire agreement of the Parties with
respect to the subject matter hereof and supersedes any and all existing
agreements relating to the subject matter hereof. Neither this Agreement nor any
provision hereof may be modified or amended except by written agreement signed
by both Parties.
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed on their
behalf by their duly authorized officers as of the Effective Date.
| Ripple6, Inc. | CLIENT | |||||
| By: |
/s/
Xxxxx X. Xxxxxxxxx
|
By: |
/s/
Xxxxxxxx Xxxxxxxx XX
|
|||
| Name: | Xxxxx X. Xxxxxxxxx |
Name:
|
Xxxxxxxx Xxxxxxxx XX | |||
| Title: |
VP
Strategic Sales
|
Title: |
CEO/President
|
|||
6
SCHEDULE
1
Development Services;
Development Fees
(attach
Product Requirements Document (PRD), Functional Specifications or equivalent)
(R6 to
provide upfront dev fee based on evaluation of PRD)
7
SCHEDULE
2
Ongoing Services:
Ongoing
Services
Fees
|
●
|
Hosting
of the Site
|
|
●
|
Account
management:
|
|
o
|
Train
Client team on Platform functionality, CMS capabilities and Ripple
Analytics
|
|
o
|
Monthly
analysis of Site behavior based on Ripple
Analytics
|
|
o
|
Provide
recommendations to encourage community usage/growth
(ongoing)
|
|
●
|
Front-line
technical support for inbound member questions on functionality
(optional)
|
|
o
|
For
example, password recovery or change of
username
|
|
●
|
Access
to product enhancements made to the Ripple6 Platform at no additional cost
provided the enabling of
such functionality does not require any site layout or redesign
changes
|
|
●
|
Ripple
Analytics
|
Ongoing Service Fees:
Monthly
minimum: $5,000
Up
to 5MM
pageviews: $5,000
5MM to
10MM
pageviews: $9,500
10MM to
20MM pageviews: $17,500
8
SCHEDULE
3
Maintenance and Support
Services; Maintenance and Support Fees
[support
fees will exist should Client require dedicated development staff or have
specific support needs above and beyond the standard agreement; otherwise, no
additional support fees]
1. AVAILABILITY AND
DOWNTIME
The Site
will be Available for 99.9% of the Maximum Available Time per calendar month,
based on the following calculation (calculated in minutes), 99.9% of the time
on a monthly basis:
(1 —
(Total Downtime / Maximum Available Time) x 100) "Available" means that the Site
is not available for use.
"Maximum Available Time" means
the total number of minutes in a given calendar month less minutes allocated to
Scheduled Maintenance, if
any. The formula for this is:
(number
of days in month X 1440 minutes per day) — (number of scheduled maintenance
minutes in month) = Maximum Available Time
"Monitoring Service" means a
third party monitoring service retained by Ripple6 that will monitor Total
DownTime [and Response Time] with at least three (3) geographically diverse
locations using a sampling frequency of five (5) minutes or less.
"Site"
means [insert URL]
"Total
Downtime"
means the total number of minutes in a given calendar month that the Site
is not Available.
2. COMMUNICATION PROTOCOL AND
ESCALATION PLAN
Client is
responsible for communicating with users of the Site directly, and for providing
Tier I support directly to such users. Client shall contact Ripple6 via e-mail
at [insert
email address] and via telephone at
[insert
telephone number) to request Tier 2 support for service level incidents
shown in the table set forth in Section 3 (each, an "Incident," and
collectively, the "Incidents"). Client's request for support regarding an
Incident will include a detailed description of the incident and steps required
to reproduce the Incident.
Ripple6
will assign each Incident a severity level in consultation with Client. An
incident tracking number, description and level for each Incident will be
communicated to Client by Ripple6 via e-mail notification. Client will have the
ability to check on the status of an Incident either via an online portal page
provided by Ripple6 or by phone call to Ripple6.
Client
will provide e-mail and phone contacts to Ripple6 for all communications
required under this Exhibit on or prior to the Effective Date of the Agreement.
Client will designate up to two (2) individuals authorized to contact Ripple6
for Tier 2 support.
3. INCIDENT
SEVERITY LEVELS
9
|
Incident
Severity Level
|
Characteristics
|
initial
Response
Window
(measured
from
receipt
by
Ripple6
of
notice
regarding
the
Incident)
|
Target
Resolution
Window
(measured
from
expiration of
the
Initial Response
Window)
|
|
1
|
Site is not Available |
45
minutes
|
Acceptable workaround within 45 minutes, target resolution time within 24 hours |
|
2
|
Site
users unable to access or use some functionality
of the Site, and Site users' experience is adversely
impacted
|
2
hours
|
Acceptable
workaround
within 8 hours, target resolution time within 2 days, or as agreed upon by
the parties in writing
|
|
3
|
Some functionality of the Site is impaired, but Site users' experience not adversely impacted. |
2 business
days
|
Next scheduled maintenance or as agreed upon by the parties in writing |
|
|
|||
|
4
|
Client has a request for enhancement to the Site. |
3 business
days
|
As agreed upon by the parties in writing |
3. BACKUP
Ripple6
will be responsible for hosting all data and services
for the Site at a
secure
offsite
location with
at
least daily backup capabilities. Ripple6 and Client will mutually agree
upon any specially needed backup activities. Twice daily backups will be
performed. A full weekly backup will be available via secure electronic
delivery. Backups will be periodically tested for validity and Client will be
notified of any backup failures or issues.
5. MAINTENANCE
Scheduled updates and maintenance
('Scheduled
Maintenance) will be
performed during the hours of (____) on every (_____). Ripple6 shall have the right to change
the dates and times of the Scheduled
Maintenance upon reasonable notice to Client.
Ripple6
will use commercially reasonable efforts to notify Client via email or telephone
no later than five (5) minutes prior to commencement of unplanned maintenance,
including an estimate of duration. If unplanned maintenance lasts more than
thirty (30) minutes, Ripple6 will send updates every thirty (30) minutes until
the unplanned maintenance is complete.
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6. SERVICE
LEVEL DEFAULTS;
CHRONIC OUTAGES
A "Service Level Default" means
a failure by Ripple6 to resolve any Severity Level 1 Incident within the
timeframes shown set forth in Section 2 above. If, during any calendar month,
there are two (2) or more Service Level 1 Defaults, then, in addition to any
other rights Client maintains under the Agreement, Client shall be entitled, as
its sole and exclusive remedy, to a one time credit equal to fifteen percent
(15%) of the average monthly Ongoing Services Fees billed to Client during the
ninety (90) days preceding the most recent Service Level Default. The total
credit will not exceed total monthly Ongoing Services Fees for the applicable
month
In the
event that any three (3) Service Level Defaults occur in a consecutive three (3)
month period (Le., one Service Level Default per month during a consecutive
three (3) month period), then Client shall have the right to notify Ripple6 in
writing of a material breach of the Agreement and, if Ripple6 fads to cure in
accordance with the termination procedure set forth in the Agreement, Client
shall have the right to terminate the Agreement upon written notice to
Ripple6.
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