EXHIBIT 10.4
LICENSE, HOSTING AND SERVICES AGREEMENT
This LICENSE, HOSTING AND SERVICES AGREEMENT ("AGREEMENT") is entered
into to be effective as of May 1, 2005 ("the EFFECTIVE DATE") by and between
RazorStream, LLC, a Nevada limited liability company located at 0000 Xxxx
Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000 ("RAZORSTREAM"), and VMdirect, L.L.C., a
Nevada limited liability company located at 0000 Xxxx Xxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxx 00000 ("VM") (hereinafter RazorStream and VM may be referred to
individually as a "PARTY" and collectively as the "PARTIES").
RECITALS
A. RazorStream and VM are parties to that certain Software Services
Agreement (the "SOFTWARE SERVICES AGREEMENT") and that certain Technology
License Agreement (the "TECHNOLOGY LICENSE AGREEMENT"), each dated to be
effective as of January 1, 2003, pursuant to which (i) VM engaged RazorStream to
supervise and direct VM's development of the Technology (as defined below), (ii)
VM assigned the Technology developed by VM to RazorStream, and (iii) RazorStream
licensed back the Technology to VM, all on the terms and conditions therein; and
B. The parties desire to terminate the Software Services Agreement and
Technology License Agreement and to enter into this Agreement to govern the
terms and conditions pursuant to which RazorStream (i) makes the Technology
available to VM, and (ii) provides certain hosting and support and maintenance
services to VM.
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 VM, financial
records 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 VM.
1.2 "AFFILIATE" means (a) with respect VM, any person or entity
directly, or indirectly through one or more intermediaries,
controlled by, or under common control with, VM, 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
Technology/Hosting Services and the Internet.
1.4 "CLAIM" means any allegation, claim, suit, action, demand,
cause of action, investigation or proceeding.
1.5 "DERIVATIVE WORK" means any work, which would be deemed a
derivative work under the Copyright Act, Title 17 of the U.S.
Code.
1.6 "DOCUMENTATION" means the technical and user manuals, FAQ
materials, 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
made available by RazorStream to VM with respect to the
Technology; provided, however, that except as otherwise
approved by VM, any such items made available to VM after the
Effective Date shall not become Documentation if they would
materially diminish or reduce the functionality of the
Technology.
1.7 "EXPENSES" means the costs, fees, expenses and other amounts
(including, but not limited to, Fees) incurred by VM under
this Agreement.
1.8 "FIELD OF USE" means the provision of 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 technology
and/or podcasting, including, without limitation, for purposes
of Internet-based social networking applications or websites,
and/or commercial products or applications.
1.9 "INTELLECTUAL PROPERTY RIGHTS" means one or more of the
following: (a) 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.
1.10 "INTERNET" means the world-wide network of computers commonly
understood 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.
1.11 "LIABILITIES" means any and all losses, damages, judgments,
assessments, deficiencies, expenses (including court costs and
reasonable attorneys' fees), costs and other liabilities of
whatsoever kind.
1.12 "LICENSED ENTITIES" means VM, its Affiliates and the Users.
1.13 "MINIMUM GUARANTEED PAYMENT" has the meaning set forth in
EXHIBIT D of this Agreement.
1.14 "MODIFICATIONS" means any modification (including custom
modifications made specifically for or at the request of VM),
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.
1.15 "NEW VERSION" means, with respect to software embodied in the
Technology, 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.
1.16 "NON-RECURRING ENGINEERING FEES" has the meaning set forth in
EXHIBIT D of this Agreement.
1.17 "OBJECT CODE" means computer software program code that is
intended to be directly executable by a computer after
suitable processing and without the intervening steps of
compilation or assembly.
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1.18 "OPERATIONS RECORDS" means (a) written records maintained by
RazorStream 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.
1.19 "RAZORSTREAM BRAND FEATURES" means the trademarks, trade
names, service 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 of the parties
(which agreement will not be unreasonably withheld or
delayed).
1.20 "RELATED PARTIES" means any owner, parent, partner, Affiliate,
subsidiary, agent, subcontractor, director, officer, hired or
leased employee or worker, or permitted assignee of
RazorStream or VM, as the case may be and as the context
requires.
1.21 "SOURCE CODE" means computer software program code, other than
Object 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).
1.22 "SPECIFICATIONS" means (a) the design characteristics,
compatibility 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 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 VM and
approved by VM either prior to or after the Effective Date.
1.23 "SUBSCRIBER ACCOUNT" means each active User account with VM or
any of its Affiliates whereby the Technology is sublicensed to
such User.
1.24 "TECHNOLOGY" means (a) the software applications and computer
programs described in the attached EXHIBIT A, (b) any
Technology Releases developed by 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 any Technology
Release.
1.25 "TECHNOLOGY RELEASES" means any corrections, modifications, or
bug fixes, enhancements, updates, new versions or releases to
the Technology.
1.26 "TERRITORY" means the world.
1.27 "THIRD PARTY SERVICE PROVIDER" means a third party Internet
service 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.
1.28 "THIRD PARTY SOFTWARE" means the third party software and
technologies (licensed to RazorStream from third party
software providers) that are integrated into the Technology, a
list of which is set forth on EXHIBIT E hereto.
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1.29 "TRANSACTION" means any User transaction consummated with
respect to the VM Services via the Technology and Hosting
Services.
1.30 "UPDATE" means bug fixes, improvements, updates,
Modifications, Derivative Works and upgrades to any portion of
the Technology developed by RazorStream from time to time.
1.31 "USER" means individuals and entities who utilize the VM
Software for their personal or commercial purposes, as
permitted by VM from time to time.
1.32 "USER INFORMATION" means personally identifiable information
of Users and any other information or data relating to any
Transaction transmitted via the Technology and Hosting
Services in connection with or otherwise relating to VM, the
Users and/or the VM Services.
1.33 "VIRUS" means a set of computer instructions which are
self-replicating 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.
1.34 "VM SERVICES" means any product or service offered by VM from
time to time to its Users that includes the Technology.
1.35 "VM SOFTWARE" means software owned and/or licensed to VM that
is used with, or that incorporates and/or embeds, the
Technology.
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 VM's continued compliance with the
obligations of this Agreement, RazorStream hereby grants VM
throughout the Territory and solely within the Field of Use:
3.1.1 a perpetual, royalty-free, 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 VM Software;
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3.1.2 a perpetual, royalty-free, 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 VM 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 VM
Software (including, without limitation, embedding or
integrating such software, in Object Code form only,
on VM or third party websites and/or in VM 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
VM Software (including, without limitation, as such
VM 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 VM 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 VM 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 a non-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 descriptions for the Technology. To the extent not
already developed and set forth on EXHIBIT A, RazorStream
promptly shall develop detailed Specifications 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 VM provides timely feedback. All Specifications
developed in accordance with the foregoing sentence shall be
subject to VM's review and approval, which review and approval
shall not be unreasonably withheld or delayed. Such
Specifications, and any modified Specifications approved by
VM, automatically shall become part of EXHIBIT A for all
purposes under this Agreement in regards to the initial
implementation.
3.3 HOSTING SERVICES. During the Term, RazorStream shall host the
Technology for the Licensed Entities' access and use of the
Technology (the "HOSTING SERVICES"). As part of the Hosting
Services, RazorStream shall provide, operate and maintain at
its premises, or facilities under its control and supervision,
all servers, operating system software, network security,
connectivity and other items 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.
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3.4 DOCUMENTATION. RazorStream shall provide VM and its Affiliates
using the Technology with Documentation (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. VM and its Affiliates may duplicate the
Documentation so that VM's and its Affiliates' 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, 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 VM and its Affiliates pursuant to a
separate escrow agreement in a form acceptable to both
Parties. VM 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 VM or its
Affiliates, 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 VM 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 VM by the escrow agent shall be paid by
VM.
The escrow agreement shall include, without limitation, a
license grant for use of the escrowed materials by VM and its
Affiliates 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. VM may engage a third party
consultant or independent contractor to modify, change or
enhance the Source Code on VM's behalf; provided, however,
that VM 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 VM, but not the base Source Code
that was the starting place for such modifications, shall be
owned solely and exclusively by VM and RazorStream hereby
assigns all of its right, title and interest in and to such
modifications or derivative works to VM. 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 VM in
the presence of a representative of RazorStream. From time to
time at VM's request, RazorStream shall provide VM with a list
of all third-party software embedded in the Technology, if
any.
3.6 OPTION TO HOST TECHNOLOGY. VM may, at its sole option, elect
to host the Technology on VM's, its Affiliate'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 VM has confirmed in writing that the Technology
has been successfully transitioned to VM's, its Affiliate's,
or a third party's servers (the "TRANSFER NOTICE").
RazorStream shall use reasonable and good faith efforts to
cooperate with VM to transition the Technology. VM shall be
responsible for all expenses associated with transferring and
retooling and equipment required for the Technology on VM's
equipment. The exercise by VM of the option hereunder shall be
deemed a termination of this Agreement under Section 14.2.
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4. OWNERSHIP.
4.1 TECHNOLOGY OWNERSHIP. As between the parties, the Technology,
Updates, New Versions, Modifications and/or Derivative Works
to the Technology made by RazorStream and provided to VM 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 VM under the terms
of this Agreement. As between the parties, the VM 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 VM, shall remain
the sole and exclusive property of VM, with all right, title
and interest therein to be held exclusively by VM.
Additionally, RazorStream acknowledges that as between the
Parties, VM 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 Agreement does not grant to VM or its Affiliates any
rights of ownership to the Technology. Except as otherwise
provided herein, VM and its Affiliates 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 VM and its Affiliates
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 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 PersonNametime 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 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.
5.3 ADDITIONAL OBLIGATIONS. Each party agrees (a) not to alter or
remove any 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.
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5.4 PRIVACY COMPLIANCE. Notwithstanding anything herein to the
contrary, 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 ("PROFESSIONAL SERVICES") for VM, initially as part
of the Implementation Services, as defined below, and as VM
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 VM will enter
into a written Statement of Work ("SOW") pursuant to this
Agreement, substantially in the form of the attached EXHIBIT
B. Each SOW shall include a description of the Professional
Services to be performed, the work product to be produced by
RazorStream (the "DELIVERABLES"), the terms of ownership of
the 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 VM, 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 VM. 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 VM'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. VM may require reasonable changes in the scope
of the Professional Services described in any SOW that
RazorStream shall perform upon receiving notice thereof from
VM. Notwithstanding the foregoing, if the change in the scope
of the Professional Services under an SOW requested by VM
materially increases the amount of time to be spent by
RazorStream in providing the Professional Services as so
modified, then VM and RazorStream shall agree in writing to a
change order with respect to such SOW ("CHANGE ORDER") setting
forth a description of the additional Professional Services to
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 VM and RazorStream cannot agree in writing on the
pricing for such additional Professional Services.
Notwithstanding any other provision of this Agreement, VM
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 VM 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.
6.3 IMPLEMENTATION SERVICES. Notwithstanding the foregoing, in
connection with the roll-out of the Technology for use in a
production environment by VM and its Affiliates, RazorStream
shall provide, pursuant to the fees set forth in EXHIBIT D,
all (a) account set-up, engineering and 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 VM's and
its
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Affiliates' requirements in all respects, and (b) such
training services as VM and its Affiliates may reasonably
request (collectively, the "IMPLEMENTATION SERVICES"). Prior
to commencing any Professional Services other than the
Implementation Services, it shall be RazorStream's
responsibility to obtain a separate SOW with VM that shall
govern RazorStream's performance of such Professional Services
and any compensation owed to RazorStream therefor. RazorStream
shall not be entitled to any compensation for (i) the
Implementation Services, or (i) any Professional Services
rendered by RazorStream for VM or any of its Affiliates unless
VM has agreed in a separate SOW to such charges.
7. MAINTENANCE AND SUPPORT.
During the Term, and at all times thereafter to the extent VM continues
to use the Technology, RazorStream shall provide to VM and its
Affiliates the maintenance and support services ("SUPPORT SERVICES")
for the Technology in accordance with the terms and conditions set
forth on EXHIBIT C hereto.
8. REDUNDANCY; BACK-UP; THIRD PARTY SERVICE PROVIDERS.
8.1 REDUNDANCY; DISASTER RECOVERY. At all times during the Term of
this 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 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)
VM reasonably anticipates that the Technology/Hosting Services
connection will continue to exceed Bandwidth capacity,
RazorStream shall provide additional bandwidth as requested by
VM within thirty (30) days, provided that such increases in
Bandwidth are reasonable and a commensurate increase in
compensation is mutually agreed between RazorStream and VM.
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.
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 VM,
RazorStream shall deliver to VM 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 VM within 30 days of such change.
- 9 -
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 VM's ARC merchant
account numbers. Further, RazorStream acknowledges that the
User Information is specific to VM, its Affiliates 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 VM, its Affiliates and to Users to whom User
Information relates.
9.2 INCIDENT RESPONSE PROTOCOL. RazorStream will promptly remedy
and respond to, and notify VM 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, VM shall pay RazorStream the
fees and other amounts described in EXHIBIT D to this
Agreement ("FEES"). Except as otherwise approved by VM in
writing in advance, the Fees are the only amount for which
RazorStream may invoice VM 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 VM and
its Affiliates.
11.2 SOW INVOICES. For all Professional Services performed by
RazorStream for VM pursuant to a SOW, VM shall be invoiced as
described in such SOW.
11.3 EXPENSES. With the exception of travel and related expenses in
connection with Professional Services rendered by RazorStream
for VM 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 VM
in good faith) owed by VM to RazorStream hereunder shall be
due and payable no later than thirty (30) days after VM's
receipt of RazorStream's invoice therefor.
11.5 TAXES. RazorStream will add to any Fees payable by VM, 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 VM will be billed
as separate items on RazorStream's invoices.
- 10 -
12. RECORDS; AUDITS.
12.1 MAINTENANCE OF VM RECORDS. During the Term and for a period of
two (2) years thereafter, VM shall maintain complete and
accurate Accounting Records and with regard to its payment of
amounts to RazorStream hereunder. VM 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 VM under this
Agreement. RazorStream shall maintain all Accounting Records
in accordance with generally accepted accounting principles,
consistently applied.
12.3 INSPECTION OF VM ACCOUNTING RECORDS. Upon reasonable notice to
VM, and during regular VM business hours, RazorStream shall
have the right to review the VM Accounting Records to confirm
accurate payment of the amounts owed by VM 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, VM 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 VM's expense by VM's internal auditor or
an independent auditor selected by VM 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, VM 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 VM. Any such audit shall be conducted at the expense of VM;
provided that, in the event that such audit reveals that
RazorStream has overcharged VM by five percent (5%) or more,
RazorStream shall reimburse VM for the costs of the audit.
RazorStream promptly shall reimburse VM for any overcharge of
Expenses. To the 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 VM and any independent third party mutually agreed upon
by VM and RazorStream in connection with any such audit and
shall assist VM and any such independent third party, as
reasonably requested by VM 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 VM
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 VM
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 VM.
- 11 -
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
December 31, 2006 (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 VM. In addition to any termination right
otherwise provided hereunder (including under Section 3.6), VM
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 VM 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 VM 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 payable; (c) RazorStream
will return to VM all copies of Transaction logs, all related
data and any other materials provided to RazorStream by VM or
its Affiliates (or at the election of VM, destroy such copies
and cause an executive officer of RazorStream to certify the
same to VM); (d) RazorStream will continue to provide the
support and maintenance services set forth in EXHIBIT C; and
(e) except as otherwise necessary under the Technology Hosting
Agreement or 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, VM shall continue
to make the maintenance payments set forth on EXHIBIT D hereto
with respect to such support and maintenance services.
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
- 12 -
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 VM and its
Affiliates 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
placeFORTH IN THIS 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) VM 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
VM 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.
- 13 -
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 VM 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) VM shall provide RazorStream with prompt notice of the
Claim giving rise to such obligation (but failure by VM 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
VM's prior written consent); (iii) VM shall cooperate with RazorStream in the
defense or settlement of any such Claim, and RazorStream shall reimburse VM for
the reasonable costs associated with such cooperation, and (iv) with respect to
subsection (a) hereof only, VM 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 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 VM and its Affiliates the right to continue using the RazorStream
Products, or, if such remedies are not reasonably available, RazorStream will
return all amounts paid by VM 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
- 14 -
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 VM:
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: Managers
Facsimile: Facsimile:
20. GOVERNING LAW; DISPUTE RESOLUTION.
This Agreement shall be governed by and construed under the laws of the State of
placeStateNevada, 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 placeStateNevada or federal
district courts of the placecountry-regionUnited States located in placeCityLas
Vegas, StateNevada. 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.
21. GENERAL.
21.1 TERMINATION OF SOFTWARE SERVICES AGREEMENT AND TECHNOLOGY
LICENSE AGREEMENT. The parties acknowledge and agree that, as
of the Effective Date, each of the Software Services Agreement
and the Technology License Agreement shall be terminated, and
be deemed null and void.
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.
- 15 -
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 VM.
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
VM's and its Affiliates' 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 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 VM thereunder 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.
- 16 -
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: /S/ By: /S/
---------------------------- ------------------------------
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.
("VM") 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 _________, 2006 (the "AGREEMENT"). Capitalized terms not defined
herein shall have the same meanings set forth in the Agreement.
1. Contact Information:
---------------------- ------------------------- ----------------------------
"VM" "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 VM and its Affiliates 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 VM from
time to time.
1.3 VM is responsible for Tier I support. A telephone help desk ("HELP
DESK") shall answer VM's and its Affiliates' 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 VM and its Affiliates in using the Technology 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 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 VM's and its Affiliates' inquiries.
2. SERVICES NOT INCLUDED.
Except as otherwise provided in Section 6.3 or elsewhere in the Agreement,
Support Services do not include custom programming services or training.
3. OBLIGATIONS OF VM.
3.1 VM CONTACT. Upon completion of the implementation of the Technology and
Hosting Services, VM shall designate no more than 3 persons who will
serve as the contacts with respect to Support Services for VM and its
Affiliates ("SUPPORT COORDINATORS"). To the maximum extent practicable,
VM's and its Affiliates' communications with RazorStream with respect
to Support Services will be through the Support Coordinator(s).
3.2 INSTALLATION. Subject to Section 9 (Releases) below, VM 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 VM to accept or install a particular Technology Release
where (i) VM reasonably believes that installation of such Technology
Release will have a
material adverse effect on the functioning or performance of VM's or
its Affiliates' systems or networks or will disrupt the receipt or
processing of orders for VM 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, VM'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, VM agrees
to grant RazorStream access to VM'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 VM or its Affiliates without prior authorization from
VM; provided, however, that VM shall reasonably cooperate with
RazorStream in the diagnosis of any defect. Any such remote access by
RazorStream shall at all times be subject to VM'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. VM, in its sole discretion,
may limit remote access and may require RazorStream to comply with any
security measures implemented by VM or its Affiliates with respect to
any of VM's or its Affiliates' systems or networks.
3.4 ERROR DOCUMENTATION. VM 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.
VM and its Affiliates 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) VM's or its Affiliates' 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
VM or its Affiliates 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 VM or its Affiliates 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 VM
or its Affiliates, in compliance herewith. All Problems reported by VM or its
Affiliates 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 VM and its Affiliates ("Emergency Representative"). RazorStream
shall provide VM and its Affiliates 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 VM, 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 VM, 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 VM, 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 VM, 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 VM and
its Affiliates 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 VM and its Affiliates 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 VM and its Affiliates 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 VM
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 VM and its Affiliates 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 VM and
its Affiliates at no additional charge during the Term; provided that VM 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. VM and its Affiliates 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 VM or its Affiliates 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, VM and its Affiliates 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 VM or
its Affiliates 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 VM or its
Affiliates. 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 VM or its Affiliates 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 VM and its Affiliates so that VM and its Affiliates are not required
to pay extra fees for new functionality or features in the Technology Release
that it does not desire. RazorStream shall provide VM and its Affiliates 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 VM or its
Affiliates. Upon acceptance of such revised Specifications by VM, they
automatically shall be deemed attached to EXHIBIT A.
EXHIBIT D
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. The initial implementation services fee,
equal to a one-time fee of $100,000 (the "IMPLEMENTATION SERVICES
FEE"), intended to cover the Implementation Services for the first
20,000 Subscriber Accounts, is hereby waived by RazorStream. For
Subscriber Accounts that exceed the initial 20,000 base accounts, VM
shall pay RazorStream a one-time Implementation Services Fee of $5 per
Subscriber Account, and VM shall give 45 days advance notice to
activate any such excess Subscriber Accounts, provided, however, that
Subscriber Accounts to be implemented by VM hereunder in excess of the
initial 20,000 base accounts may only be acquired by VM in 20,000
Subscriber Account blocks, irrespective of the actual number of
Subscriber Accounts VM may anticipate from time to time.
2. NON-RECURRING ENGINEERING FEES. VM 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 VM product offerings, and such other purposes as VM
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 VM,
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, VM shall pay to
RazorStream continuing payment amounts (the "ADDITIONAL FEE") as
follows: (a) ten percent (10%) of VM'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 VM 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. VM shall make a minimum non-refundable
guaranteed payment (the "MINIMUM GUARANTEED PAYMENT") of $50,000 per
month, commencing on dateMonth5Day1Year2005May 1, 2005 and continuing
for a period of twenty (20) months through
dateMonth12Day31Year2006December 31, 2006. 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, VM shall be required to pay a
minimum 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.
EXHIBIT E
TO
LICENSE, HOSTING AND SERVICES AGREEMENT
THIRD PARTY SOFTWARE
[LIST HERE, INCLUDING APPLICABLE TERMS]
