TECHNICAL SUPPORT SERVICE AGREEMENT
This Technical Support Service Agreement ("Agreement") is made effective as
of March 6, 2000 (the "Effective Date") and is between NATIONAL SUPPORT CENTER,
L.L.C., a Delaware limited liability corporation having its address at 0000
Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("NSC") and XxXxxx.xxx, Inc., a Delaware
corporation having its address at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxx 00000 ("XxXxxx.xxx") (sometimes NSC and XxXxxx.xxx are individually
referred to as a "Party" or collectively referred to as the "Parties").
RECITALS
A. XxXxxx.xxx presently sells certain Internet related computing products,
after- market applications and services including, without limitation, the
computing device commonly known as "GlobalPC", (the "Products") to its consumer
customers.
B. XxXxxx.xxx desires to establish a relationship with NSC to provide
technical support services for the Products and screening services for MyTurn's
Internet Service Provider to its consumer customers.
C. XxXxxx.xxx desires to engage the services of NSC to provide such
services in North America in accordance with the provisions and conditions
contained in this Agreement.
WITNESSETH
NOW THEREFORE, in consideration of the above described recitals and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is agreed as follows:
1. Incorporation And Acceptance.
1.1 The Parties agree that the above paragraphs which identify them, recite
the purposes and intent of this Agreement and acknowledge consideration are
accurate; and, it is specifically agreed that the above paragraphs are
incorporated into and made an integral part of this Agreement.
1.2 The Parties further agree that the foregoing incorporation of those
paragraphs has specific legal effect and is not intended to be merely precatory;
and it is specifically acknowledged that the statement of consideration is
intended and shall be deemed contractual.
1.3 The Parties further acknowledge and agree that the terms of this
Agreement are fair and equitable and each respectively agree to comply with all
of its terms.
2. NSC's Consumer Customer Support Services.
2.1 The technical support services to be provided hereunder by NSC to
XxXxxx.xxx shall be those as generally described herein and more specifically
set forth on Exhibit A hereto.
2.2 NSC shall be the exclusive first line support provider to XxXxxx.xxx of
said technical support services for the Products during the Term of this
Agreement.
3. Effective Date Of Agreement. This Agreement shall be and become effective as
of the date identified above as the "Effective Date", which shall be the
effective date even though it may be a date other or different than the actual
date of execution of this document by the last party whose signature is
required.
4. Term and Termination.
4.1 Term. The initial term of this Agreement shall commence on the
Effective Date of this Agreement, shall expire on the first anniversary thereof
(the "Term"), and shall thereafter automatically continue for one (1) successive
one-year term unless either party provides notice of non-renewal at least sixty
(60) days before the expiration of the then-current term (which may be the Term
or a successor term). Following the Term, NSC may terminate this Agreement,
without cause, with thirty (30) days' prior written notice to XxXxxx.xxx. If
either party notifies the other of non-renewal before expiration of any term,
both parties shall continue to be bound by all the terms of this Agreement, and
NSC shall continue to provide technical support services for the Products to
XxXxxx.xxx's consumer customers in accordance with the terms of this Agreement
for a transition period of sixty (60) days (the "Transition Period") after the
expiration of the then-current term. This Agreement shall automatically expire
on the final day of the Transition Period, unless renewed before that date.
4.2 Termination for Breach. Each party shall have the right to terminate
this Agreement in the event XxXxxx.xxx materially breaches any term of this
Agreement and fails to cure such breach in the course of the dispute resolution
procedures set forth below at Section 9 ("Dispute Resolution").
4.3 Effect of Termination - Survival. Sections 4 ("Term and Termination"),
5 ("Payment"), 6 ("Covenants and Warranties"), 7 ("Confidential Information"), 8
("Limitation of Liability; Indemnity"), 9 ("Dispute Resolution"), and 10
("General Provisions") shall survive termination of this Agreement.
5. Payment. NSC will invoice XxXxxx.xxx for the technical support services
described herein and provided hereunder, each calendar week for NSC's Consumer
Customer Technical Support Services (as described herein and on Exhibit A)
rendered in the previous calendar month, which shall be calculated in accordance
with NSC's Consumer Customer Technical Support Service Activity-Based Pricing
(as described herein and on Exhibit B) and which shall contain a schedule of the
services rendered and the related pricing, and XxXxxx.xxx shall pay each such
invoice in good and collected funds net 30 days from the date of each invoice.
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5.1 Cooperation XxXxxx.xxx shall provide, or cause to be provided, to NSC,
the assistance of officers, employees, representatives and affiliates, or such
assistance as may reasonably be requested.
5.2 Late Payment. XxXxxx.xxx will pay interest on late payments at the rate
of one and one-half percent (1.5%) per month or the highest interest rate
allowed, whichever is lower.
5.3 Non-Compliance. If XxXxxx.xxx fails to comply substantially with any of
the payment provisions set forth in this Section 5, nothing in this Agreement to
the contrary withstanding, NSC shall be relieved of any further obligation to
provide technical support services for the Products under this Agreement.
6. Covenants and Warranties.
6.1 Each Party agrees that the covenants and warranties given each to the
other in this paragraph are in addition to any other covenant and warranty
contained in this Agreement, and that the existence of this paragraph is not
intended to nor shall it be construed as a limitation of the covenants and
warranties given herein to each other.
6.2 Each Party acknowledges that the entry by the other into this Agreement
is in reliance upon the truth and accuracy of the covenants and warranties of
the other in this paragraph and those covenants and warranties found elsewhere
in the Agreement.
6.3 Each party hereto covenants, warrants and represents as follows:
6.3(a) That each has full power and authority and legal right to enter into
this Agreement and the transactions contemplated herein, and acknowledge the
specific covenant and warranty above.
6.3(b) That each party is presently capable, legally and economically, to
comply with all the obligations, terms and conditions required to be done by
each respective party to this Agreement.
6.3(c) That the consummation of the transaction as contemplated by this
Agreement and the performance or observance of each party's obligations under
this Agreement will not conflict with or result in any breach of any condition
or provision of the terms of any contract, agreement, instrument, judicial
order, writ, injunction or decree to which either is a party or by which either
of them is bound.
6.3(d) Disclaimer of Warranties. EXCEPT AS SET FORTH HEREIN, EACH PARTY
EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE,
NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Further,
in the absence of gross negligence on the part of
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NSC, XxXxxx.xxx agrees that NSC shall not be liable to XxXxxx.xxx for loss of
profit or other financial loss (including without limitation loss resulting from
the loss of business) which may be caused, directly or indirectly, by the
inadequacy of the technical support service for any purpose or any use thereof
or by any deficiency or defect therein.
6.3(e) Non-Solicitation of Employees. During the Term (or any successor
term) of this Agreement and for a period of one hundred eighty (180) days
following the Term (or any successor term), neither Party will solicit nor hire
personnel from the other without express written consent from the other Party.
7. Confidential Information.
7.1 Confidential Information. Each party (the "Disclosing party") may from
time to time during the term of this Agreement disclose to the other party (the
"Receiving Party") certain information regarding the Disclosing Party's
business, including technical, marketing, financial, employees, planning, and
other confidential or proprietary information ("Confidential Information"). The
Disclosing Party will xxxx all Confidential Information in tangible form as
"confidential" or "proprietary" or with a similar legend. The disclosing Party
will identify all Confidential Information disclosed orally as confidential at
the time of disclosure and provide a written summary of such Confidential
Information to the Receiving Party with thirty (30) days after such oral
disclosure. Regardless of whether so marked or identified, however, any
information that the Receiving Party knew or should have known, under the
circumstances, was considered confidential or proprietary by the Disclosing
Party, will be considered Confidential Information of the Disclosing Party.
7.2 Protection of Confidential Information. The Receiving Party will not
use any Confidential Information of the Disclosing Party for any purpose not
expressly permitted by this Agreement, and will disclose the Confidential
Information of the Disclosing Party only to those employees or contractors of
the Receiving Party who have a need to know such confidential Information for
purposes of this Agreement and who are under a duty of confidentiality no less
restrictive than the Receiving Party's duty hereunder. The Receiving Party will
protect the Disclosing Party's Confidential Information from unauthorized use,
access, or disclosure in the same manner as the Receiving Party protects its own
confidential or proprietary information of a similar nature and with no less
than reasonable care.
7.3 Exceptions. The Receiving Party's obligations under Section 7.2
("Protection of Confidential Information") with respect to any Confidential
Information of the Disclosing Party will terminate if and when the Receiving
Party can document that such information: (a) was already known to the Receiving
Party at the time of disclosure by the Disclosing Party; (b) was disclosed to
the Receiving Party by a third party who had the right to make such disclosure
without any confidentiality restrictions; (c) is or through no fault of the
Receiving Party has become, generally available to the public; or (d) is
independently developed by the Receiving Party without access to, or use of, the
Disclosing Party's Confidential Information. In addition,
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the Receiving Party will be allowed to disclose Confidential Information of the
Disclosing Party to the extent that such disclosure is (i) approved in writing
by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its
rights under this Agreement in connection with a legal proceeding; or (iii)
required by law, rule or regulation or by the order of a court or similar
judicial or administrative body, provided that the Receiving Party notifies the
Disclosing Party of such required disclosure promptly and in writing and
cooperates with the Disclosing Party, at the Disclosing Party's reasonable
request and expense, in any lawful action to contest or limit the scope of such
required disclosure.
7.4 Return of Confidential Information. The Receiving Party will return to
the Disclosing Party or destroy all Confidential Information of the Disclosing
Party in the Receiving Party's possession or control promptly upon the written
request of the Disclosing Party on the expiration or termination of this
Agreement, whichever comes first. At the Disclosing Party's request, the
Receiving Party will certify in writing that it has fully complied with its
obligations under this Section.
7.5 Confidentiality of Agreement. Neither party will disclose any financial
and/or costing or payment terms of the Agreement to anyone other than its
attorneys, accountants and other professional advisors under a duty of
confidentiality except (a) as required by law; (b) pursuant to a mutually
agreeable press release; (c) in connection with a proposed merger, financing or
sale of such party's business, provided that any third party to whom the terms
of this Agreement are to be disclosed signs a confidentiality agreement
reasonably satisfactory to the other party to this Agreement.
8. Limitation of Liability; Indemnity
8.1 Limitation of Liability. Neither party shall be liable to the other for
any indirect, incidental, special or consequential damages, or for any loss of
profits or loss of revenue, or failure to realize expected savings for any
services performed by such party pursuant to this Agreement. Except for each
party's obligations pursuant to Section 8.2 ("Indemnity"), each party's maximum
liability for any damages whatsoever to the other party arising out of this
Agreement shall be the amount paid or owed by XxXxxx.xxx to NSC hereunder (in
the case of XxXxxx.xxx's liability shall be such amount paid or owed). This
agreed limitation of liability shall not apply to the extent the claims,
demands, liabilities or expenses result solely from the gross negligence or
willful misconduct of a party.
8.2 Indemnity. Each Party agrees to indemnify the other for damage(s)
resulting from (i) violation of any applicable law or regulation; and (ii)
injury to or violation of the rights of a third party.
8.3. Mechanics. Each party's (the "Indemnify Party") obligation to
indemnify under this Section 8.3 is conditioned on the party seeking indemnity
(the "Indemnified Party") (i) giving the Indemnifying Party written notice of
the relevant claim, (ii) cooperating with the
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Indemnifying party, at the Indemnifying Party's expense, in the defense of such
claim, and (iii) giving the Indemnifying Party the right to control the defense
and settlement of any such claim, except that the Indemnifying Party shall not
enter into any settlement that affects the Indemnified Party's rights or
interest without the Indemnified Party's prior written approval. The Indemnified
Party shall have the right to participate in the defense at its expense.
9. Dispute Resolution.
9.1 NSC and XxXxxx.xxx are implementing this Agreement in good faith.
However, should either party believe that the other party is in breach of this
Agreement, the parties shall attempt in good faith to resolve any dispute
arising out of or relating thereto promptly by negotiations. All negotiations at
all levels pursuant to this Section 9 are confidential and shall be treated as
compromise and settlement negotiations for purposes of the Federal Rules of
Evidence and state rules of evidence.
9.2 Notice and Cure. Either party (the "Non-Breaching Party") may give the
other party (the "Breaching Party") written notice of any material breach. The
Breaching Party shall then have thirty (30) days to cure the material breach, or
if the breach cannot be cured within thirty (30) days, to institute meaningful
steps to cure such breach within thirty (30) days. Nothing herein to the
contrary, if the Breaching Party does not effect a cure to the Non-Breaching
party's satisfaction within 90 days from the first date of notice of default,
the chief executive officers of the parties shall, within the following fifteen
(15) days, confer in good faith for the purpose of satisfactorily resolving the
material breach."
9.3 Arbitration. If a resolution satisfactory to the Non-Breaching Party is
not achieved within the fifteen-day period set forth in Section 9.2, the parties
agree promptly to submit the dispute to binding arbitration to be held in
Chicago, Illinois under the then-existing rules for commercial disputes of the
American Arbitration Association. Each party irrevocably submits to the
jurisdiction and venue set forth in this Section 9.3(a).
10. General Provisions.
10.1 Governing Law and Venue. This Agreement and each transaction
contemplated hereunder shall be deemed to be made under the laws of the State of
Illinois and shall at all times be both construed and interpreted in accordance
with the laws of the State of Illinois. It is specifically agreed that it is
both the intent and the desire of the Parties that whenever possible that each
and every provision of this Agreement shall be given a judicial construction and
interpretation so as to be effective and valid under applicable law. But, if any
provision shall be construed or prohibited by or determined invalid only that
provision shall be ineffective to the extent so determined, without invalidating
the remainder of such provision or the remaining provisions of this Agreement.
10.2 Force Majeure. Any party's delay in the performance of any duties or
obligations
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under this Agreement (except the payment of money owed) will not be considered a
breach of this Agreement is such delay is caused by a labor dispute, shortage of
materials, fire, earthquake, flood or any other event beyond the control of the
party, provided that the party uses reasonable efforts, under the circumstances,
(a) to notify the other party of the circumstances causing the delay and (b) to
resume performance as soon as possible.
10.3 Rights and Remedies Cumulative and Not Exclusive. The failure of
either party to this Agreement to insist upon strict performance of any of the
terms, covenants or conditions hereof shall not be deemed a waiver of any rights
or remedies that party may have and shall not be deemed a waiver of any
subsequent breach or default in any such terms, covenants or conditions.
Further, no delay or omission to exercise any right or power accruing upon any
default, omission or failure of performance hereunder shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed
expedient. In the event any provision contained in this Agreement should be
breached by any party and thereafter duly waived by the other party so empowered
to do it, such waiver shall be limited to the particular breach so waived and
shall not be deemed to waive any other breach hereunder.
10.4 Attorneys Fees. Should either Party be required to retain counsel in
order to enforce or prevent the breach of any provision of this Agreement, that
party shall be entitled to reasonable attorneys' fees and costs for services
rendered if such party prevails.
10.5 Notices. Whenever it is provided herein that notice, demand, request,
consent, approval or other communication ("notice") shall or may be given to
either Party by the other, it shall be in writing and, any law or statute to the
contrary notwithstanding, shall not be effective for any purpose unless same
shall be given or served by registered or certified mail, postage prepaid,
return receipt requested, directed to the address set forth below the signatures
of the parties, or at such other address as either party may from time to time
designate by notice to the other as herein provided. Notices shall be deemed
effectively given: (a) upon five (5) days after being sent by certified or
registered mail, postage prepaid, return receipt requested; (b) upon the next
business day after being sent overnight by U.S. Express Mail or by a major U.S.
express document carrier; or (c) upon receipt of confirmation following
transmission by a facsimile machine if sent on a business day during business
hours (otherwise, deemed received six hours after the beginning of the next
business day).
10.6 No Assignment. Neither Party may assign its rights or delegate its
duties without the other party's prior written consent, except to an entity
controlled by, controlling or under common control with the assigning party, or
in connection with the sale of substantially all of the assigning party's
assets, or a merger or consolidation or the like involving the assigning party.
Any assignment or delegation in violation of this Section shall be void and of
no effect. Subject to the prohibitions against assignment contained herein, this
Agreement shall inure to the benefit of and shall be binding on the parties
hereto and their respective successors and permitted assigns.
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10.7 Severability ; Waiver. If any provision of this Agreement is held to
be invalid or unenforceable for any reason, the remaining provisions will
continue in full force and effect without being impaired or invalidated in any
way. The parties agree to replace any invalid provision with a valid provision
which most closely approximates the intent and economic effect of the invalid
provision. The waiver by any party of a breach of any provision of this
Agreement will not operate or be interpreted as a waiver of any other or
subsequent breach.
10.8 Scope and Binding Effect of Agreement. The terms, provisions and
conditions of this Agreement shall be binding upon and inure to the benefit of
each respective party and their respective legal representatives, successors,
heirs, legatees, Executors, administrators and assigns (except as otherwise
prohibited by this Agreement). Upon the Effective Date set forth above, this is
an agreement between the Parties for their mutual benefit and no third persons
or entities shall have any right, claim or interest against any party by virtue
of any terms, provision or condition hereof. Each Party agrees that nothing
contained in this Agreement shall be construed to create the relationship of
principal or agent or representative of the other, and this Agreement shall not
be construed to make any party liable to any person or entity except as set
forth herein.
10.9 Headings Descriptive Only. The Parties acknowledge that this Agreement
consists of multiple sections and sub-paragraphs, many of which are preceded by
a heading. The Parties understand that the characterizations of such headings
are for convenience, are not definitive in nature and that such headings are not
intended to consist of words of limitation, but rather words of general
description of explanation. The Parties further acknowledge each to the other
that no party is relying upon any implication from any such heading in their
execution of this Agreement.
10.10 Independent Contractors; No Agency. The parties to this Agreement are
independent contractors, and no agency, partnership, joint venture, or
employee-employer is intended or created by this Agreement. Neither party is the
agent of the other, and neither party shall have the power to obligate or bind
the other party. Personnel supplied by each party shall work exclusively for
that party, and shall not, for any purpose, be considered employees or agents of
the other party, and each party assumes full responsibility for the acts of
personnel supplied by it while performing service hereunder and, with regard to
any personnel supplied by it, each party shall be solely responsible for their
supervision, direction and control, compensation, benefits, and taxes.
10.11 Exhibits Incorporated. The following have been agreed to by the
Parties prior to the execution hereof to be attached hereto as exhibits:
EXHIBIT A NSC's Consumer Customer Technical Support Services
EXHIBIT B NSC's Consumer Customer Technical Support Service Activity-
Based Pricing
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It is the intention of the parties that each exhibit and the contents thereof
shall be incorporated into the become a binding part of this Agreement as if
fully set forth herein.
10.12 Entire Agreement. Each Party acknowledges by their execution of this
Agreement that it is intended that this Agreement, including the Exhibits
attached hereto, constitutes a complete and exclusive statement, expression and
embodiment of the terms, conditions and agreements of the Parties. Each Party
acknowledges that no prior course of dealing shall be relevant or admissible to
supplement, explain or vary any term of this Agreement; and it is agreed that no
prior communication, whether written or oral, shall be deemed or construed to
constitute a part of this Agreement. Each Party acknowledges that there are no
promises, terms, conditions or obligations to or under this Agreement other than
those contained herein; and that they shall not be bound by any employee's or
attorney's interpretation, representations, promises or inducements not
expressly set forth in this Agreement. The parties specifically acknowledge and
agree that this Agreement has resulted from specific negotiations and is the
mutual product of both parties hereto. Therefore, it is agreed that under no
circumstances shall any or all of the terms of this Agreement be interpreted by
a court more strongly against either party. Neither this Agreement nor any
provision hereof may be amended, waived, discharged or terminated orally, unless
such is deemed unenforceable, invalid or contrary to law as provided above.
10.13 Duplicate Originals. This Agreement may be executed simultaneously or
otherwise in one or more identical counterparts, each of which shall be deemed
and construed as an original and all of which shall be construed together to
constitute one and the same document.
IN WITNESS WHEREOF, the Parties have executed this Agreement as effective
on the date set forth above.
NATIONAL SUPPORT CENTER, L.L.C
By: /s/ X.X. Xxxxxx
-----------------------------------------
X.X. Xxxxxx, President
XXXXXX.XXX, INC.
By: /s/ X.X. Xxxxxx, Chief Executive Officer
-----------------------------------------
X.X. Xxxxxx, Chief Executive Officer
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EXHIBIT A
NSC's Consumer Customer Technical Support Services
Conditions Precedent:
(a) XxXxxx.xxx shall provide NSC with all required software licenses (if
necessary) to adequately process its business responsibilities.
(b) XxXxxx.xxx shall maintain an adequate and functional voice connection
to NSC and will pay to deliver voice to NSC.
(c) XxXxxx.xxx shall provide NSC with master copies of all relevant
technical materials needed for NSC to administer the XxXxxx.xxx support
business.
(d) XxXxxx.xxx shall provide NSC with two (2) of each XxXxxx.xxx product
NSC will support. (NSC shall be entitled to purchase any additional products at
XxXxxx.xxx's cost.)
Scope of Work:
(a) NSC will provide all network connection hardware and software inside
the NSC facility, PC's to required configuration, ACD, call reporting, and event
tracking software necessary to administer the technical support.
(b) NSC will provide necessary phone system or service to successfully
process XxXxxx.xxx technical support.
(c) NSC will provide necessary technical and network engineering resources
to ensure successful connection of required voice and data activity.
(d) NSC will provide technical support via telephone and e-mail to MyTurn.
com customers who request assistance with product information, technical
support, or customer service.
(e) NSC will also provide warranty registration and portal support services
to XxXxxx.xxx.
(f) NSC technicians will have high levels of base technical skills and will
have passed applicable tests on XxXxxx.xxx products and procedures prior to
providing support to XxXxxx.xxx customers.
(g) NSC technicians will be trained by NSC's in house technical training
group, who is an approved XxXxxx.xxx training center. XxXxxx.xxx will not charge
for their training resources applied to this function. NSC is responsible for
any of the xxx-XxXxxx.xxx expenses
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they incur in obtaining this training.
(h) NSC technicians will maintain high levels of communication skills (in
both English and Spanish), professionalism and customer handling skills.
(i) NSC will regularly monitor the performance of their technicians to
measure their performance on technical, communications and customer quality.
(j) NSC will administer XxXxxx.xxx support procedures and policies.
XxXxxx.xxx has the right to inspect and observe NSC support facilities and
activity.
Hours of Coverage:
Primary Period: 7am - 9pm Monday thru Friday
Extended Period: 9pm - 7am Monday thru Friday
All day Saturday and Sunday
Telephone Time to Answer:
Primary Period: 95th Percentile 60 seconds
99th Percentile 300 seconds
Extended Period: 95th Percentile 60 seconds
99th Percentile 300 seconds
E-Mail 95th Percentile 30 minutes
Location of Service:
All service will be provided from NSC in Naperville, IL. NSC may elect to
transfer some call volume to another NSC owned site contingent upon MyTurn's
approval which shall not unreasonably be withheld.
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EXHIBIT B
NSC's Consumer Customer Technical Support Service Activity-Based Pricing
Pricing for the technical support service shall be as follows:
(a) Telephone calls - $.68 per minute.
(b) E-Mail - $3.50 per technical e-mail response.
(c) Portal Support - $25.00 per hour.
(d) Warranty Registration - $12.50 per hour.
(e) Inbound Toll Free Telephone - billed at cost.
(f) Outbound Telemarketing - $.62 per minute.
Both Parties agree that the pricing will be reviewed 6 months after date of this
Agreement with the intention of decreasing the rates stated above based upon,
subject to sufficient call volume to warrant such.
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