Exhibit 10.11
▇▇▇▇▇▇▇.▇▇▇ AGREEMENT
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This ▇▇▇▇▇▇▇.▇▇▇ AGREEMENT ("Agreement") is made and entered into as of
August 15th 2006 ("Effective Date"), by and between DataCall Technologies, Inc.
a Nevada Corporation, located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Reseller") and ▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation, located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇.▇▇▇").
RECITALS
WHEREAS, Reseller is a global provider of content, data, software,
communication and other technologies, services and products; and
WHEREAS, ▇▇▇▇▇▇▇.▇▇▇ desires to provide certain data feeds of traffic and
traffic related information to Reseller to allow Reseller to deliver traffic and
traffic related information as part of an "Enhanced Product" provided to its
users in certain geographic markets; and
WHEREAS, Reseller desires to use the ▇▇▇▇▇▇▇.▇▇▇ data feeds of traffic and
traffic related information as part of the "Enhanced Product" accessed by its
users.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
contained herein, the parties, intending to be legally bound, hereby agree as
follows:
AGREEMENT
I. Definitions. For purposes of this Agreement, the following definitions shall
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apply:
(a) "Coverage Area(s)" shall refer to the metropolitan statistical areas as
defined by the U.S. Census Bureau using the city names listed in Exhibit C to
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this Agreement, excluding Puerto Rico, with further geographic limitations where
specified herein.
(b) "Distributor(s)" shall mean a third party selected by Reseller to distribute
and sublicense the ▇▇▇▇▇▇▇.▇▇▇ Technology as incorporated in the Enhanced
Product solely to End User(s) without any other distributor, reseller or
intermediary between the Distributor and the End User.
(c) "End-User(s)" shall mean any entity or person who licenses the Enhanced
Product from the Reseller or Distributor and who receives or uses the Enhanced
Product or information contained therein or derived therefrom (including, but
not limited to, ▇▇▇▇▇▇▇.▇▇▇ Technology) for personal use with no right to
sublicense or transfer the Enhanced Product to another entity or person (unless
the person is an employee of an entity who is an End User).
(d) "Enhanced Product" shall mean the ▇▇▇▇▇▇▇.▇▇▇ Technology together with the
product(s) and service(s) of Reseller, as more particularly described in Exhibit
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(e) "Term" shall have the meaning set forth in Section IV.
(0 "▇▇▇▇▇▇▇.▇▇▇ Technology" shall mean the software, databases, products and
services set forth in Exhibit A as such list may be modified from time to time
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during the Term along with any ▇▇▇▇▇▇▇.▇▇▇ Marks (as defined hereinafter) and
any materials or content developed by ▇▇▇▇▇▇▇.▇▇▇ while performing hereunder.
II. Services; Grant of License.
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(a) During the Term, ▇▇▇▇▇▇▇.▇▇▇ shall provide Reseller with the technology and
services set forth in Exhibit A for the Coverage Area and subject to the terms
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of the Service Level Agreement set forth in Exhibit D and other requirements set
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forth in Exhibit A. The initial Coverage Area included as part of the
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▇▇▇▇▇▇▇.▇▇▇ Technology as of the Effective Date is set forth on Exhibit C.
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▇▇▇▇▇▇▇.▇▇▇ shall provide Reseller traffic and traffic related information for
other metropolitan areas so long as ▇▇▇▇▇▇▇.▇▇▇ makes such information generally
available to its other Resellers at no additional cost and subject to any
third-party restrictions or limitations on such data.
(b) Subject to the provisions contained in this Agreement and applicable third
party license agreements, ▇▇▇▇▇▇▇.▇▇▇ hereby grants to Reseller and Reseller
hereby accepts during the Term a non-exclusive, non-transferable license: (i) to
use and copy the ▇▇▇▇▇▇▇.▇▇▇ Technology solely for purposes of demonstrating the
▇▇▇▇▇▇▇.▇▇▇ Technology, as incorporated in the Enhanced Product without
modification, to potential Distributor(s) and End User(s) solely for evaluation
purposes, (ii) to sublicense, for a fee, the ▇▇▇▇▇▇▇.▇▇▇ Technology, as
incorporated in the Enhanced Product without modification, to End User(s) and
Distributor(s), and (iii) to use the logos and trademarks provided to Reseller
by ▇▇▇▇▇▇▇.▇▇▇ ("▇▇▇▇▇▇▇.▇▇▇ Marks") in connection with the promotional
activities set forth herein.
(c) Any rights not expressly granted by ▇▇▇▇▇▇▇.▇▇▇ to Reseller herein are
reserved by ▇▇▇▇▇▇▇.▇▇▇, and all implied licenses are disclaimed. Without
limiting the foregoing, Reseller shall not, and shall cause its Distributors or
their End Users not to: (i) use the ▇▇▇▇▇▇▇.▇▇▇ Technology other than for the
Enhanced Product, (ii) directly or indirectly broadcast or distribute any
portion of the ▇▇▇▇▇▇▇.▇▇▇ Technology via any internet website, radio or
television systems (both analog and digital systems (i.e., FM subcarrier signal,
AM sideband, satellite radio, and other similar mediums)) for audio or visual
presentations, (iii) provide any portion of the ▇▇▇▇▇▇▇.▇▇▇ Technology to
government agencies, (iv) develop a text to voice email alert or message or
voice mail application using any portion of the ▇▇▇▇▇▇▇.▇▇▇ Technology, (v) use
3-dimensional maps in connection with the ▇▇▇▇▇▇▇.▇▇▇ Technology, (vi) enter
into any agreement or other arrangement with any third party which in any way
restricts, prevents or hinders the ability of ▇▇▇▇▇▇▇.▇▇▇ to provide to such
third party the ▇▇▇▇▇▇▇.▇▇▇ Technology or any other product or service made
available by ▇▇▇▇▇▇▇.▇▇▇ from time to time on any platform whatsoever including,
but not limited to, wireless and PDA, (vii) provide any traffic or traffic
related content or advertisement from a party other than ▇▇▇▇▇▇▇.▇▇▇ on screens
at the same time that any portion of the ▇▇▇▇▇▇▇.▇▇▇ Technology is displayed,
(viii) store or archive any portion of the traffic or traffic related
information on servers, systems and equipment for any purpose other than for
incidental back-up and/or support purposes, (ix) modify reverse engineer,
decompile, or create derivative works of the ▇▇▇▇▇▇▇.▇▇▇ Technology or (x)
directly or indirectly provide the Enhanced Product to an End User for use on or
in connection with any internet or other interactive web site that consists
primarily of weather or weather related forecasts, data or content; or any
desktop application, software program, product or service that provides or
displays primarily weather or weather related forecasts, data or content.
Without the prior written consent of ▇▇▇▇▇▇▇.▇▇▇, Reseller shall not provide the
▇▇▇▇▇▇▇.▇▇▇ Technology to a Distributor or End-User in a non-revenue producing
manner (including, but not limited to, for the purpose of building a prototype
application).
(d) Reseller shall at all times during the Term (i) devote commercially
reasonable efforts to market and support the Enhanced Product, (ii) notify
▇▇▇▇▇▇▇.▇▇▇ in writing of any change in its ownership or sale of a substantial
portion of its assets, (iii) represent and demonstrate the ▇▇▇▇▇▇▇.▇▇▇
Technology prominently and fairly at all times when comparing to competitive
products, (iv) display the ▇▇▇▇▇▇▇.▇▇▇ Marks on all sales and marketing
collateral for the Enhanced Product, (v) provide ▇▇▇▇▇▇▇.▇▇▇ with two (2) copies
of the Enhanced Product and (vi) conduct its business so as not to damage the
valuable reputation of ▇▇▇▇▇▇▇.▇▇▇.
(e) Subject to the provisions contained in this Agreement, Reseller hereby
grants to ▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇.▇▇▇ hereby accepts during the Term a
non-exclusive, non-transferable license to use the logos and trademarks provided
to ▇▇▇▇▇▇▇.▇▇▇ by Reseller ("Reseller Marks") in connection with the promotional
activities set forth herein. Any rights not expressly granted by Reseller to
▇▇▇▇▇▇▇.▇▇▇ herein are reserved by Reseller, and all implied licenses are
disclaimed.
III. Ownership of Technology.
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(a) ▇▇▇▇▇▇▇.▇▇▇ represents that it has all right, title and interest in, or if
applicable, licenses to, the ▇▇▇▇▇▇▇.▇▇▇ Technology (in context, "Technology").
Reseller represents that it has all right, title and interest in, or if
applicable, license to, the Enhanced Product (other than the ▇▇▇▇▇▇▇.▇▇▇
Technology) and the materials (including, but not limited to, Reseller Marks) it
provides to ▇▇▇▇▇▇▇.▇▇▇ under this Agreement ("Reseller Technology," in context,
"Technology"). Each party shall use the other party's marks in accordance with
the trademark guidelines provided to it from time to time by the owner of the
marks.
(b) In acknowledgment of the valuable property rights of ▇▇▇▇▇▇▇.▇▇▇ in the
▇▇▇▇▇▇▇.▇▇▇ Technology, Reseller agrees that all information generated as a
result of the use of the ▇▇▇▇▇▇▇.▇▇▇ Technology and Enhanced Product shall bear
such trademarks, logos, and copyright information of ▇▇▇▇▇▇▇.▇▇▇ and of
▇▇▇▇▇▇▇.▇▇▇'s third party vendors, as ▇▇▇▇▇▇▇.▇▇▇ reasonably directs.
(c) During the Term of this Agreement, Reseller hereby appoints ▇▇▇▇▇▇▇.▇▇▇ as a
Distributor of the Enhanced Product on terms and conditions no less favorable
than those provided to other Distributors who are as similarly situated as
▇▇▇▇▇▇▇.▇▇▇ (after taking into account its sales and markets), which agreement
shall be signed by the parties simultaneously with this Agreement.
IV. Term and Termination. This Agreement shall commence on the Effective
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Date and shall continue until August 30th 2007 ("Original Term"), and shall
renew automatically thereafter for successive one (1) year periods (each a
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"Renewal Term," collectively, the "Term"), unless either party provides the
other party with written notice of termination at least ninety (45) days prior
to the expiration of the Original Term or the then-current Renewal Term. Each
party will have the right to terminate this agreement for its convenience with
forty-five (45) days prior written notice. Those provisions that by their nature
survive shall survive termination of this Agreement. All other rights and
obligations of the parties shall cease upon termination including, but not
limited to, all licenses granted hereunder. ▇▇▇▇▇▇▇.▇▇▇ shall have the right to
immediately terminate this Agreement in the event that Reseller sells all or
substantially all of its business (whether by stock sale, asset sale, merger or
otherwise) to an entity whose primary business is providing traffic or traffic
related information including, but not limited to, Westwood One, Inc. and Clear
Channel Communications. Upon termination of this Agreement, Reseller shall pay
▇▇▇▇▇▇▇.▇▇▇ all amounts accruing up and until the termination date of this
Agreement, and Reseller shall, and Reseller shall cause all Distributors and
End-Users to, cease using the ▇▇▇▇▇▇▇.▇▇▇ Technology and to destroy, return
and/or erase all copies of the ▇▇▇▇▇▇▇.▇▇▇ Technology in its possession, and to
certify in writing that it has performed such activities.
V. Fees.
(a) Reseller agrees to pay ▇▇▇▇▇▇▇.▇▇▇ the fees and costs set forth in Exhibit F
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at the frequencies and time periods set forth therein. If no payment date is set
forth in Exhibit F, then Reseller shall pay ▇▇▇▇▇▇▇.▇▇▇ within thirty (30) days
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following the receipt of a ▇▇▇▇▇▇▇.▇▇▇ invoice. Any unpaid amounts due to
▇▇▇▇▇▇▇.▇▇▇ by Reseller, when due under Section V, herein, shall be subject to
an interest fee calculated from the date due at the rate of one and one-half
percent (1.5%) per month (eighteen percent (18%) per annum) or the highest rate
allowable by applicable law, whichever rate is less. Said interest fee shall
accrue daily and be compounded annually, until paid in ftill.
(b) During the Term of this Agreement and for a period of [TWO ( 2 ) years]
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thereafter, Reseller shall maintain complete and accurate financial records with
respect to matters covered by this Agreement in accordance with generally
accepted accounting principles. ▇▇▇▇▇▇▇.▇▇▇ shall have the right, at its own
expense, upon reasonable prior notice, to periodically inspect and audit these
records. If such inspection and audit reveals that Reseller has underpaid
▇▇▇▇▇▇▇.▇▇▇ with respect to any amounts due and payable hereunder, Reseller
shall immediately pay the ftill amount of such underpayment, together with
interest equal to the greater of (i) one and one-half percent (1.5%) or (ii) the
highest interest rate permitted by law, commencing on the date that such amount
was due, and further provided that if the amount of such underpayment equals or
exceeds five percent (5%) of the total amounts due and payable by Reseller,
Reseller shall reimburse ▇▇▇▇▇▇▇.▇▇▇ for the cost of such inspection and audit.
(c) Reseller shall submit to ▇▇▇▇▇▇▇.▇▇▇, via email or any other delivery method
reasonably requested by ▇▇▇▇▇▇▇.▇▇▇, within ten (10) days of the end of the
preceding month, a statement setting forth information related to Reseller's
performance herein, including, without limitation, the Reseller's name, each End
User name, vertical market, volume, number of users and any other information
reasonably requested by ▇▇▇▇▇▇▇.▇▇▇.
(d) For purposes of this Agreement, ▇▇▇▇▇▇▇.▇▇▇ recognizes the fees earned
hereunder for Coverage Areas utilizing ▇▇▇▇▇▇▇.▇▇▇ Technology that incorporates
▇▇▇▇▇▇▇.▇▇▇ traffic sensors according to the following formula: fifty percent
(50%) for traditional traffic gathering operations, twenty-five percent (25%)
for public agency sensors and twenty-five percent (25%) for ▇▇▇▇▇▇▇.▇▇▇ sensors.
VI. Confidentiality. At all times during the Term and thereafter, each party
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shall keep confidential and not disclose, directly or indirectly, and shall not
use for the benefit of itself or any other individual or entity any Confidential
Information of the other party. "Confidential Information" means any trade
secrets or confidential or proprietary information whether written, digital,
oral or other form which is unique, confidential or proprietary to the
disclosing party, including, but not limited to, the terms and conditions of the
Agreement, each party's Technology, and any other materials or information
related to the business or activities of the disclosing party which are not
generally known to others engaged in similar businesses or activities. Each
party shall return to the disclosing party any of the disclosing party's
Confidential Information upon request and/or upon termination of this Agreement.
Neither party shall issue a press release regarding this relationship without
the other party's prior written approval.
VII. Indemnity.
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(a) If any claim is asserted against one party ("Indemnitee") that the
Technology of the other party ("Indemnitor") infringes the intellectual property
rights in the United States of America of any third party, the Indemnitee shall
promptly advise the Indemnitor in writing of such claim, and the Indemnitor
shall have the right to elect to control the defense of such claim with counsel
of Indemnitor's choosing, and to the extent Indemnitor so elects to defend, the
Indemnitee shall cooperate fully in the defense thereof and furnish to the
Indemnitor all evidence and assistance in Indemnitee's control. If the
Indemnitor controls the defense or in its sole discretion elects not to control
the defense but is determined to have so infringed, the Indemnitor shall
indemnify the Indemnitee from and against any and all liabilities, damages, and
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reasonable costs (not including attorneys' fees incurred by the Indemnitee in
monitoring or participating in any defense provided by Indemnitor) incurred by
Indemnitee as a result of any such claim or any resulting judgment or
settlement. In the event the ▇▇▇▇▇▇▇.▇▇▇ Technology is held or is believed by
▇▇▇▇▇▇▇.▇▇▇ to infringe upon a third party's intellectual property rights,
▇▇▇▇▇▇▇.▇▇▇, at its sole discretion, shall have the option, at its expense, to
(i) modify the ▇▇▇▇▇▇▇.▇▇▇ Technology so it is no longer infringing but
maintains substantially similar functionality; (ii) obtain for Reseller a
license to continue using the ▇▇▇▇▇▇▇.▇▇▇ Technology; or (iii) if after using
commercially reasonable efforts, neither (i) nor (ii) are commercially
practicable, terminate this Agreement. This Section sets forth the sole and
exclusive obligation of ▇▇▇▇▇▇▇.▇▇▇ with regard to any intellectual property
infringement claim with respect to the ▇▇▇▇▇▇▇.▇▇▇ Technology.
(b) Reseller shall indemnify, defend, and hold harmless, ▇▇▇▇▇▇▇.▇▇▇, its
affiliates and their officers, directors, employees, agents, and other
representatives from and against any judgments, losses, damages, liabilities,
costs or expenses (including, but not limited to, reasonable attorneys' fees and
legal expenses) from third party claims associated with or arising from the
sale, use, license, distribution and/or manufacture of the Enhanced Product
other than one where ▇▇▇▇▇▇▇.▇▇▇ must indemnify Reseller pursuant to Section
VII(a); provided that ▇▇▇▇▇▇▇.▇▇▇ gives Reseller reasonable prompt notice of any
such claim, action, suit or proceeding; grants control of the defense and
settlement to Reseller; and reasonably cooperates with Reseller at Reseller's
expense.
VIII. Limited Warranty. ▇▇▇▇▇▇▇.▇▇▇ SPECIFICALLY DISCLAIMS WHETHER EXPRESS,
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IMPLIED, STATUTORY, OR ARISING FROM TRADE USAGE OR COURSE OF CONDUCT, ANY AND
ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR
PURPOSE RELATING TO THE ▇▇▇▇▇▇▇.▇▇▇ TECHNOLOGY OR ITS PERFORMANCE HEREUNDER.
IX. Default. This Agreement shall be terminated at the option of the
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non-defaulting party, by written notice thereof to the defaulting party,
specifying in reasonable detail the reason for termination, if (i) the
defaulting party breaches or otherwise fails to perform or comply in a material
respect with a material obligation or covenant, and such breach or failure is
not cured to the non-defaulting party's reasonable satisfaction within ten (10)
days of receipt of such notice; or (ii) the defaulting party fails to comply
strictly with the provisions of Sections II, VI or XIII.
X. Training; Maintenance and Support.
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(a) Within ninety (90) calendar days from the Effective Date, Reseller shall
undergo product sales and technical training curriculum as provided by
▇▇▇▇▇▇▇.▇▇▇ at ▇▇▇▇▇▇▇.▇▇▇'s then-current rate. In the event Reseller fails to
undergo such training, ▇▇▇▇▇▇▇.▇▇▇ shall have the option, in its sole
discretion, to terminate this Agreement. If Reseller's employee who has been
trained on the ▇▇▇▇▇▇▇.▇▇▇ no longer is employed by Reseller, then Reseller
shall replace such employee with an employee trained with ▇▇▇▇▇▇▇.▇▇▇
Technology, at its expense, within sixty (60) days of such employee's
termination, reassignment or transfer.
(b) Subject to Reseller's compliance with the terms and conditions of this
Agreement, ▇▇▇▇▇▇▇.▇▇▇ shall provide Reseller with maintenance and support
services as described in Exhibit D ("Maintenance and Support Services").
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▇▇▇▇▇▇▇.▇▇▇'s Maintenance and Support Services is confined to contacts with
Reseller and does not include any contact with End Users or Distributors.
Reseller is responsible for dealing directly with all issues arising from its
Distributors and End Users, including, but not limited to, the distribution of
any updates, upgrades and enhancements. If Reseller is in default or has
otherwise breached this Agreement, ▇▇▇▇▇▇▇.▇▇▇ shall have no obligation for
Maintenance and Support Services hereunder until Reseller has rectified such
default or breach.
(c) Reseller agrees to provide services, if any, in a manner satisfactory to its
End Users and Distributors in order to maintain the applicable agreement.
▇▇▇▇▇▇▇.▇▇▇ has the right to pursue any such party directly if: (i) Reseller's
business ceases to exist, (ii) Reseller fails to maintain minimum service
standards as defined by ▇▇▇▇▇▇▇.▇▇▇, in which event Reseller will be notified
and given ten (10) days to correct the service standards before the applicable
agreement is terminated, or (iii) this Agreement terminates.
XI. Sublicenses by Reseller.
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(a) As a condition to each sublicense to an End User granted by Reseller or a
Distributor, Reseller and/or Distributor shall require each End User to enter
into ▇▇▇▇▇▇▇.▇▇▇'s then-current End User License Agreement provided to Reseller
from time to time by ▇▇▇▇▇▇▇.▇▇▇ (the current version is attached hereto as
Exhibit E) or an alternative agreement that is no less protective of
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▇▇▇▇▇▇▇.▇▇▇'s proprietary rights than the End User License Agreement
("▇▇▇▇▇▇▇.▇▇▇ End User Agreement"). As a condition to each sublicense to a
Distributor granted by
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Reseller, Reseller shall require each Distributor to comply with the terms and
conditions set forth herein including, but not limited to, Sections II and III
("▇▇▇▇▇▇▇.▇▇▇ Distributor Agreement").
(b) Reseller acknowledges and agrees that ▇▇▇▇▇▇▇.▇▇▇ shall be a third-party
beneficiary of all contracts executed between Reseller and any End User or
Distributor and each ▇▇▇▇▇▇▇.▇▇▇ End User Agreement and ▇▇▇▇▇▇▇.▇▇▇ Distributor
Agreement shall contain such acknowledgement. Reseller shall aggressively
enforce the restrictions contained in this Agreement at Reseller's sole expense
and promptly notify ▇▇▇▇▇▇▇.▇▇▇ when Reseller acquires actual knowledge of any
violations of such restrictions by End User(s) or a Distributor(s). If a breach
occurs, Reseller shall promptly take corrective action to remedy the breach,
including, if applicable, termination of the affected agreement, and shall, in
addition, notify ▇▇▇▇▇▇▇.▇▇▇ of the breach and the corrective action taken.
Reseller acknowledges that ▇▇▇▇▇▇▇.▇▇▇ shall have the right to institute and/or
join any action against an End User or Distributor for a breach of any of the
terms and conditions of the applicable agreement. If ▇▇▇▇▇▇▇.▇▇▇ elects, at its
sole discretion, to pursue its rights against such defaulting party, Reseller
agrees to cooperate with ▇▇▇▇▇▇▇.▇▇▇ in any proceeding against such defaulting
party.
(c) During the Term, Reseller shall have the first right to introduce new
▇▇▇▇▇▇▇.▇▇▇ products and/or services to its current End Users and Distributors
at ▇▇▇▇▇▇▇.▇▇▇'s then-current published rate. If Reseller elects not to
introduce a new product or service within thirty (30) days after the
introduction of such product and/or service, ▇▇▇▇▇▇▇.▇▇▇ shall then have the
right to sell the ▇▇▇▇▇▇▇.▇▇▇ product and/or service directly to such party.
Reseller will have no right to the fee collected by ▇▇▇▇▇▇▇.▇▇▇ for such product
and/or service which ▇▇▇▇▇▇▇.▇▇▇ provides directly to a Distributor or End User.
XII. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
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INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES
ARISING OUT OF THIS AGREEMENT, THE USE OF ITS TECHNOLOGY OR PERFORMANCE OF ITS
OBLIGATIONS HEREUNDER, EVEN IF THE AFFECTED PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. Except for (i) a party's obligation to indemnify
the other pursuant to Section VII, and/or (ii) damages arising from a party's
breach of a confidentiality obligation set forth herein, each party agrees that
the other party's maximum liability arising out of contract, negligence, strict
liability in tort or otherwise, shall not exceed the amount of fees paid or
otherwise payable to ▇▇▇▇▇▇▇.▇▇▇ by Reseller hereunder.
XIII. Covenants.
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(a) During the Term, Reseller agrees that neither it nor its Distributors will
provide a competitor's traffic or traffic related information for any market in
the Coverage Area for use by End Users of the Enhanced Product or for any other
users of products and services provided by Reseller for a market within the
Coverage Area.
(b) During the Term Reseller agrees that, without the prior written consent of
▇▇▇▇▇▇▇.▇▇▇, it will not, directly or indirectly on its own behalf or as a
partner, affiliate, officer, director, stockholder, principal, owner, employee,
agent or consultant of any other person or entity: (i) contract to resell,
license or otherwise provide the ▇▇▇▇▇▇▇.▇▇▇ Technology or any portion thereof
to any party that competes with ▇▇▇▇▇▇▇.▇▇▇ including, but not limited to,
ClearChannel, Westwood One, Inrix and TrafficCast; (ii) interfere with the
business of ▇▇▇▇▇▇▇.▇▇▇ by suggesting to, inducing or persuading any customer or
supplier to discontinue its business relationship with ▇▇▇▇▇▇▇.▇▇▇; (iii) take
any action or make any statements that are intended or should reasonably be
expected to discredit, demean, or have a material adverse effect on the business
of ▇▇▇▇▇▇▇.▇▇▇; and (iv) solicit, hire, induce, persuade, pay commission, or aid
or cooperate with others in soliciting, hiring, inducing or persuading any
employee of ▇▇▇▇▇▇▇.▇▇▇ to leave the employ of ▇▇▇▇▇▇▇.▇▇▇. Without limiting the
foregoing, Reseller further agrees to cause its employees, subcontractors,
Distributors and any other third party performing services for ▇▇▇▇▇▇▇.▇▇▇ on
behalf of Reseller to comply with the foregoing restrictions and obligations.
(c) If Reseller desires to license from a third party traffic or traffic related
data, content and information for a market other than the markets in the
Coverage Area for use in the Enhanced Product or any other service or product,
then Reseller shall notify ▇▇▇▇▇▇▇.▇▇▇ in writing, and shall provide ▇▇▇▇▇▇▇.▇▇▇
with the first right to negotiate with Reseller for the right to supply Reseller
with traffic or traffic related information for such market for a period of
thirty (30) days. If the parties negotiating in good faith are unable to reach a
written agreement with respect thereto within such period (as the same may be
extended by mutual agreement of the parties), then Reseller may contract for
traffic and traffic related information for that market with a third party,
provided that any agreement between the parties is on terms and conditions no
less favorable than the terms and conditions offered to ▇▇▇▇▇▇▇.▇▇▇ by Reseller
during the 30-day period.
-5-
XIV. Miscellaneous.
-------------
(a) This Agreement (along with the Recitals which are incorporated herein by
this reference) constitutes the entire understanding and agreement of the
parties, and supersedes all prior and contemporaneous understandings and
agreements, whether written or oral, with respect to its subject matter. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but both of which together shall constitute one and the same
instrument.
(b) No delay or failure by either party to exercise or enforce at any time any
right or provision hereof will be considered a waiver thereof No single waiver
will constitute a continuing or subsequent waiver. No waiver, modification or
amendment of any provision hereof will be effective unless it is in a signed
writing by the parties.
(c) Neither party may assign its rights or obligations hereunder (including as a
change of control) without the prior written consent of the other party except
in the case where a party assigns this Agreement to an affiliate or to a party
that purchases all or substantially all of the assigning party's assets and such
party or affiliate agrees to be bound by all of the terms and conditions in this
Agreement. Subject to the foregoing, this Agreement will bind and inure to the
benefit of the successors and permitted assigns of the parties.
(d) This Agreement shall be governed and construed in all respects by the laws
of the Commonwealth of Pennsylvania, without regard to principles of conflict of
laws and without application of the Uniform Computer Information Transaction
Act. The parties agree that the exclusive jurisdiction and venue of any dispute
amongst the parties shall be entered in the state or federal courts within
Pennsylvania and each of the parties hereby waives any right to a trial by jury.
The prevailing party in any action to enforce this Agreement shall be entitled
to recover reasonable costs and expenses including, without limitation,
reasonable attorneys' fees.
(e) If any provision of this Agreement or the application thereof to any party
or circumstance is held to be invalid, illegal, or unenforceable in any respect,
that provision to the extent permitted by law (not otherwise) shall be severed
from this Agreement and shall not affect the remainder hereof, and the parties
agree to substitute for such provision a valid provision which most closely
approximates the intent and economic effect of such severed provision.
(0 The parties to this Agreement are independent contractors. Neither party
shall be liable to the other for a failure to perform any of its obligations
under this Agreement, except for payment obligations, during any period in which
such performance is delayed due to circumstances beyond its reasonable control
including, but not limited to, failure of the Enhanced Product, failure of the
▇▇▇▇▇▇▇.▇▇▇ Technology or other ▇▇▇▇▇▇▇.▇▇▇ systems or facilities; acts of God,
fires, floods or other catastrophes; national emergencies, insurrections, riots
or wars; strikes, lockouts, work stoppages or other labor difficulties; and any
law, order, regulation or other action of any governing authority or agency
thereof
(g) All notices hereunder must be in writing and mailed by certified mail,
return receipt requested, or by prepaid courier service, or by telecopier with
receipt confirmed by telephone, to each party's address first set forth above.
(h) If Reseller desires to procure any professional services from ▇▇▇▇▇▇▇.▇▇▇ in
connection with the ▇▇▇▇▇▇▇.▇▇▇ Technology, including, without limitation,
training, integration, and comparable development work, either for itself or on
behalf of an End User, such terms, conditions and fees shall be negotiated in
good faith between the parties.
(i) Advertising displayed in the Enhanced Product by or on behalf of Reseller
shall not contain advertising for any party that provides traffic services in
competition with ▇▇▇▇▇▇▇.▇▇▇ including, but not limited to, ClearChannel,
Westwood One, Inrix and TrafficCast
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized officers as of the Effective Date.
▇▇▇▇▇▇▇.▇▇▇, INC. RESELLER: DATACALL TECHNOLOGIES, INC.
--------------------------
By: By: /s/ ▇▇▇ ▇▇▇▇▇▇
-------------------------------- ------------------------------
Date: Date: 8/17/2006
------------------------------ ----------------------------
Name: Name: ▇▇▇ ▇▇▇▇▇▇
------------------------------ -----------------------------
Title: Title: President
----------------------------- ----------------------------
-6-
EXHIBIT A
▇▇▇▇▇▇▇.▇▇▇ TECHNOLOGY
- ▇▇▇▇▇▇▇.▇▇▇ will provide DataCall with limited access to our TrafficPro
City XML and/or TrafficPro Web Services API for integration into Direct
▇▇▇▇ Messenger product.
-7-
EXHIBIT B
ENHANCED PRODUCT
"Client" shall mean the following computers, or other devices communicating with
Reseller's servers for the purpose of retrieving electronic information created
or displayed by the ▇▇▇▇▇▇▇.▇▇▇ Technology as incorporated in the Enhanced
Product:
DATACALL TECHNOLOGIES, INC.
"Permitted Applications" shall mean Direct ▇▇▇▇ Messenger and other Express
Messaging and digital signage applications and displays
"Platform" shall mean Digital Signage.
Example:
[Graphic Omitted]
PROMOTIONAL AND BRANDING OBLIGATIONS: ▇▇▇▇▇▇▇.▇▇▇ requires logo and/or branding
attribution on any data presented via DataCall digital signage. In addition,
each digital sign will promote or display ▇ -▇▇▇-▇▇-▇▇▇▇▇, free traffic phone
number.
-8-
EXHIBIT C
COVERAGE AREA
[Graphic Omitted]
-9-
EXHIBIT D
SUPPORT SERVICES
Reseller and ▇▇▇▇▇▇▇.▇▇▇ agree that this Service Level Agreement specifies
the standards applicable to the ▇▇▇▇▇▇▇.▇▇▇ Technology (the "Service
Standards"). These Service Standards are intended to: (i) enable Reseller to
understand clearly what level of service to expect from ▇▇▇▇▇▇▇.▇▇▇, (ii) enable
▇▇▇▇▇▇▇.▇▇▇ to understand clearly what level of service to provide to Reseller,
and (iii) define what measures and actions should be taken if that level of
service is not provided.
1. Telephone Support. ▇▇▇▇▇▇▇.▇▇▇ shall provide e-mail and telephone support
solely to Reseller in connection with the ▇▇▇▇▇▇▇.▇▇▇ Technology Monday through
Friday, between the hours of 5:00 AM and 7:00 PM Eastern Time ("Business
Hours"). ▇▇▇▇▇▇▇.▇▇▇ shall respond within four (4) hours to inquiries made
during Business Hours that are identified as Severity Level 1 errors (as defined
below), and shall respond within one (1) business day to all other inquiries.
All calls made to the ▇▇▇▇▇▇▇.▇▇▇ telephone support center shall be made by
Reseller's employees who have been trained in the ▇▇▇▇▇▇▇.▇▇▇ Technology.
111112. UPTIME AND SERVICE LEVELS. ▇▇▇▇▇▇▇.▇▇▇ SHALL USE COMMERCIALLY REASONABLE
EFFORTS TO MAKE THE ▇▇▇▇▇▇▇.▇▇▇ TECHNOLOGY AVAILABLE TO RESELLER ON A MONTHLY
AVERAGE OF NINETY-FIVE PERCENT (95%) OF THE TIME AS MEASURED BY AND AGAINST
KEYNOTE'S (OR AN EQUIVALENT METRIC AS MUTUALLY AGREED UPON BY ▇▇▇▇▇▇▇.▇▇▇ AND
RESELLER) BUSINESS 40 INDEX FOR THE ▇▇▇▇▇▇▇.▇▇▇ TECHNOLOGY THE PARTIES AGREE
THAT ANY MAINTENANCE OR ANY OUTAGE DUE TO CIRCUMSTANCES BEYOND THE REASONABLE
CONTROL OF ▇▇▇▇▇▇▇.▇▇▇ SHALL NOT BE CONSIDERED IN DETERMINING THE LIME DURING
WHICH THE ▇▇▇▇▇▇▇.▇▇▇ TECHNOLOGY IS CONSIDERED AVAILABLE.]]]]]
3. NOTICE OF CHANGE. ▇▇▇▇▇▇▇.▇▇▇ WILL PROVIDE REASONABLE ADVANCE NOTICE OF
CHANGES TO THE ▇▇▇▇▇▇▇.▇▇▇
Technology.
4. Monitoring. ▇▇▇▇▇▇▇.▇▇▇ shall monitor the performance characteristics of the
availability of the ▇▇▇▇▇▇▇.▇▇▇ Technology. ▇▇▇▇▇▇▇.▇▇▇ shall promptly notify
Reseller of any significant problem with the availability of the ▇▇▇▇▇▇▇.▇▇▇
Technology and Reseller shall notiFy ▇▇▇▇▇▇▇.▇▇▇ in writing of any bug or other
problem it learns of with the ▇▇▇▇▇▇▇.▇▇▇ Technology. Upon learning of or
receiving notice of a problem with the ▇▇▇▇▇▇▇.▇▇▇ Technology, ▇▇▇▇▇▇▇.▇▇▇
qualified personnel, after taking into account any description of the error
provided by the Reseller, shall assign a severity level to the problem as
follows:
- Severity Level 1 - The ▇▇▇▇▇▇▇.▇▇▇ Technology is wholly or
substantially inoperable or interrupted.
- Severity Level 2 - The ▇▇▇▇▇▇▇.▇▇▇ Technology remains usable with
some limitation or degradation of functionality (i.e., normal
activities are measurably impacted). Level 2 severity items are not
considered as time the ▇▇▇▇▇▇▇.▇▇▇ Technology is unavailable.
- Severity Level 3 - The ▇▇▇▇▇▇▇.▇▇▇ Technology experiences a minor
error and the impact to normal activities are minimal. Level 3
severity items are not considered as time the ▇▇▇▇▇▇▇.▇▇▇ Technology
is unavailable.
5. Remedying Problems. After classifying the severity of a problem as set forth
in the preceding Section 4 of this schedule, ▇▇▇▇▇▇▇.▇▇▇ shall provide the
following resources to remedy such problem:
- Severity Level 1 problems shall be given the highest priority of
resolution. ▇▇▇▇▇▇▇.▇▇▇ shall, immediately upon classifying a problem
as a Severity Level 1 problem, begin development of a resolution plan
and notify Reseller of the status of the problem and the proposed
remedy within Ifour (4) Business Hours].
- Severity Level 2 problems shall be given a medium priority of
resolution. ▇▇▇▇▇▇▇.▇▇▇ shall, within twenty-four (24) hours of
classifying a problem as a Severity Level 2 problem, begin development
of a resolution plan and notify Reseller of the status of the problem
and the proposed resolution within ▇▇▇▇ (10) Business HOURS].
- Severity Level 3 problems shall be given the lowest priority of
resolution and ▇▇▇▇▇▇▇.▇▇▇ shall respond to Severity Level 3 problems
within five (5) business days.
▇▇▇▇▇▇▇.▇▇▇ will use commercially reasonable efforts to repair errors in
the ▇▇▇▇▇▇▇.▇▇▇ Technology. If a permanent repair cannot be made, a temporary
10
resolution (e.g., bypass and recovery), where possible, will be implemented with
a permanent repair implemented thereafter as soon as possible taking into
account the severity level of the problem.
6. Security. ▇▇▇▇▇▇▇.▇▇▇ reserves the right to modify the method of access by
the Reseller to any portion of the ▇▇▇▇▇▇▇.▇▇▇ Technology for purposes of
securing its internal network, systems, or proprietary information including,
but not limited to, suspending access to the ▇▇▇▇▇▇▇.▇▇▇ Technology. ▇▇▇▇▇▇▇.▇▇▇
will make commercially reasonable efforts to provide advanced notice of these
changes to Reseller.
7. Peripherals. At no time will ▇▇▇▇▇▇▇.▇▇▇ be responsible for, take direct
action to resolve, or be measured against areas of operations outside of its
direct control, such as telephone networks, Internet infrastructure, or similar
operations.
8. Outside the Scope Services. For any services provided by ▇▇▇▇▇▇▇.▇▇▇
outside of these Support Services ▇▇▇▇▇▇▇.▇▇▇ shall charge the Reseller for such
services at ▇▇▇▇▇▇▇.▇▇▇'s then-current service rates.
9. UPDATES. ▇▇▇▇▇▇▇.▇▇▇ RESERVES THE right to replace or upgrade any portion of
the ▇▇▇▇▇▇▇.▇▇▇ Technology for MAINTENANCE OR OTHER ISSUES WITH EQUAL OR BETTER
PERFORMING HARDWARE OR SOFTWARE. RESELLER WILL NOT be required to PAY THE COST
OF ANY REPLACEMENT OR UPGRADES TO EQUIPMENT OR SOFTWARE WHEN THE REPLACEMENT OR
UPGRADE IS AT THE request of ▇▇▇▇▇▇▇.▇▇▇. The cost of any replacements,
upgrades, or enhancements requested by Reseller will be paid by Reseller and
shall be mutually agreed upon by the parties.
-11-
EXHIBIT E
END USER LICENSE AGREEMENT
PLEASE REFER TO ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇▇
-12-
EXHIBIT F
PAYMENT METHOD AND PRICING MODEL:
DataCall shall offer THE PREMIUM ▇▇▇▇▇▇▇.▇▇▇ CONTENT AT A PER LOCATION
SUBSCRIPTION PRICE BASED ON THE PRICING GRID AT the end of this document. If
pricing is deviated from base pricing grid for larger accounts, DataCall and
▇▇▇▇▇▇▇.▇▇▇ will sign off on any and all revised pricing in an effort to
increase market share and business.
Revenue split will be addressed in two areas. DataCall has working arrangements
with all the major platform providers and plans to offer a seamless integration
of the ▇▇▇▇▇▇▇.▇▇▇ content into the product line. If DataCall is the primary
sales agent revenue will be split %50-%50% between DataCall and ▇▇▇▇▇▇▇.▇▇▇ If
another content provider wishes to sell the content, DataCall will provide a
bridge and sell it there end users. The revenue split will be 40% ▇▇▇▇▇▇▇.▇▇▇,
25% DataCall, and 35% to the secondary seller. See Pricing Matrix Below.
DATACALL TECHNOLOGIES
USERS PUBLISHED PRICE MINIMUM PRICING ANNUAL FEE I LOCATION
1-5 $12.95 12.95 $155.40
6-100 $12.95 11.95 $143.40
101-500 $12.95 10.95 $131.40
501-999 $12.95 9.95 $119.40
1000+ $12.95 8.95 $107.40
LICENSE & SETUP FEE PER ACCOUNT BASED ON LOCATIONS
THIS IS A ONE TIME FEE
1-5 $69.95
6-100 $149.95
101-500 $695.00
501-999 $995.00
1000+ $1,995.00
DATACALL TECHNOLOGIES TRAFFIC AND WEATHER PRICING:
-------------------------------------------------
BREAK OUT
USERS PUBLISHED PRICE LICENSE FEE TRAFFIC WEATHER
1-5 $19.95 $69.95 $12.95 $7.00
6-100 $18.95 $149.95 $12.95 $6.00
101-500 $17.95 $695.00 $12.95 $5.00
501-999 $16.95 $995.00 $10.95 $6.00
1000+ $15.95 $1,995.00 $9.95 $6.00
- 13-
