Confidential Information omitted where indicated by "[*]" and filed separately
with the Commission pursuant to a request for confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934.
EXHIBIT 10.17
This Agreement, dated as of October 1, 2001 (the "Effective Date"), is made by
and between i3 Mobile, Inc., a Delaware corporation with a principal place of
business at 181 Harbor Drive, Stamford, CT 06902 ("i3 Mobile") and iNetNow,
Inc., a Delaware corporation with a principal place of business at 4322 Wilshire
Boulevard, Second Floor, Los Angeles, CA 90010 ("iNetNow").
Recitals
A. i3 Mobile provides premium information services to mobile phones including
live operator support and a Mobile Concierge Service.
B. iNetNow (i) operates a service that provides users with toll-free telephone
access to professional Web surfers who access information sought by such users
from the Internet on a real-time basis. The Service is provided to users who
subscribe to an iNetNow branded service ("Direct Subscribers") and to users who
subscribe to co-branded and/or independently private-branded services ("Indirect
Subscribers").
C. i3 Mobile wishes to provide a private-branded version of certain aspects of
the iNetNow Service to its customers so that iNetNow may operate and provide
certain aspects of the i3 Mobile Service to i3 Mobile customers.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, i3 Mobile and iNetNow hereby agree
as follows:
Terms
1. i3 Mobile Service.
1.1 Services. The i3 Mobile Service shall include those products and
services offered by iNetNow that are specifically set forth on Exhibit 1.1a and
Exhibit 1.1b attached hereto ("i3 Mobile Service").
1.2 Development and Operation. iNetNow shall develop and operate, at
its own expense, the i3 Mobile Service in compliance with all applicable laws
and regulations. iNetNow shall be responsible for all aspects of the delivery of
the i3 Mobile Service, including, without limitation, staffing and training. In
addition, iNetNow shall be responsible for any and all costs associated with
providing the i3 Mobile Service, including, but not limited to, the cost of
obtaining and maintaining all technology, hardware, software, products and
services required for the operation of the i3 Mobile Service. Notwithstanding
anything contained in this Agreement to the contrary, iNetNow hereby assumes any
and all liabilities that may arise from its development and operation of the i3
Mobile Service and agrees that i3 Mobile shall have no responsibility or
liability for the development and operation of the i3 Mobile Service.
1.3 Branding. The i3 Mobile Service shall have i3 Mobile branding
provided at iNetNow's expense through an audio recording or a statement by an
iNetNow human operator that is delivered to users (i) when users' calls are
first received, and (ii) when users have completed their calls. The branding
language to be delivered by iNetNow is set forth in Exhibit 1.3. The text of
such Overview is subject to i3 Mobile's prior written approval and shall, at a
minimum, unless otherwise requested by i3 Mobile (a) inform the user that the
user has a Myi3 Mobile account; (b) explain the Myi3 Mobile service; and (c)
list the benefits of configuring the user's Myi3 Mobile page., (d) modify a
user's i3 Mobile profile as needed. i3 Mobile may require iNetNow to change the
Overview at any time in its sole discretion. iNetNow shall take reasonable steps
(including, but not limited to, training the professional web surfers at
iNetNow's expense) to ensure that iNetNow's professional Web surfers do not
materially deviate from the Overview text approved by i3 Mobile. There shall be
no third party or iNetNow branding included in the provision of the i3 Mobile
Service without i3 Mobile's prior written approval which approval may be
withheld in i3 Mobile's sole discretion.
1.4 User Access to the i3 Mobile Service. i3 Mobile shall be
responsible for securing, at no cost to iNetNow, a toll-free telephone number or
numbers (the "Toll-free Number(s)") for the purpose of providing access to the
i3 Mobile Service. i3 Mobile shall be responsible for paying for and maintaining
the Toll-free Number(s) during the Term. Except as set forth herein, iNetNow
shall have no rights to the Toll-free Number(s), and iNetNow's sole rights to
use the Toll-free Number(s) are in connection with the i3 Mobile Service. i3
Mobile shall have all ownership rights to the Toll-free Number(s), provided
however that iNetNow shall have the obligation to operate such Toll-free
Number(s) during the Term of this Agreement in order to provide the i3 Mobile
Service. i3 Mobile shall be responsible for all fees associated with operation
of the Toll-free Number(s), including, without limitation, set up fees,
implementation fees and long distance charges. It is expressly understood that
upon termination or expiration of the
Agreement, all of iNetNow's rights to use the Toll-free Number(s) shall
terminate, and iNetNow shall execute any and all documents to transfer control
of the Toll-free Number(s) to i3 Mobile. i3 Mobile shall pay any transfer fees
that may be charged by any telecommunications provider for such transfer of the
Toll-free Number(s). These 800 numbers will be routed to local numbers by i3
Mobile. iNetNow will provide the dedicated local numbers used to identify i3
Mobile callers separately from other callers.
1.5 Registration. Users will register for the i3 Mobile Service (i) by
directly accessing and using the Registration Pages provided by i3 Mobile at a
URL to be designated by i3 Mobile; or (ii) by calling a Toll-free Number
provided by i3 Mobile and speaking with an i3 Mobile representative who will
facilitate user registrations. Any and all information to be provided or
gathered from users of the i3 Mobile Services shall be owned exclusively by i3
Mobile. iNetNow shall have the right to use information collected or otherwise
known about the users of the i3 Mobile Services solely in connection with
fulfilling its obligations hereunder and for no other purpose whatsoever. User
information shall be deemed Confidential Information for purposes of Section 11
of this Agreement.
1.6 Purchase of Calls, Provisioning for Calls and Payment of Fees for
the i3 Mobile Service. i3 Mobile shall purchase Mobile Concierge Services and
"fail over call" services from iNetNow, by written Purchase Order delivered to
iNetNow on the first business day of the calendar month prior to the month in
which iNetNow shall be prepared to respond to such calls. iNetNow shall
provision its resources to allow it to answer that number of calls for and on
behalf of i3 Mobile during such applicable months.. iNetNow shall charge i3
Mobile, and i3 Mobile shall pay to iNetNow, the fees set forth at Exhibit 1.6a
attached hereto. Notwithstanding anything contained herein to the contrary, i3
Mobile may, at any time and in its sole discretion, apply the principal and
interest of any outstanding indebtedness then due and owing from iNetNow to i3
Mobile against any obligations arising hereunder.
2. Performance Standards, Service Availability and Customer Support. At a
minimum, iNetNow shall operate the i3 Mobile Service in a manner consistent with
the then-current quality and/or performance standards applied by iNetNow to the
Service which shall be no less than a commercially reasonable standard of
service. Notwithstanding anything to the contrary set forth herein, iNetNow
agrees to use its commercial best efforts to ensure that the i3 Mobile Service
is Available (as hereinafter defined) 24 hours per day, 7 days per week.,
iNetNow will maintain a service level of 90% incoming calls answered within 10
seconds, and no greater than 2% abandoned calls within any daily period. Reports
of service levels, by month, by day, by hour, by shift detailing the number of
incoming calls, the average handle time per call, and the type of call breakout
will be provided to i3 Mobile. These reports will be delivered on a weekly
basis, but can be requested daily upon exception. i3 Mobile may, at its
discretion, make available to iNetNow the results of related "research," "focus
groups" or any other related research pertaining to the i3 Mobile Service
offering for the purpose of improving the service. i3 Mobile and iNetNow agree
to review and adjust the call volume forecast on a monthly basis in an effort to
handle hiring and training of iNetNow resources in the most cost effective
manner.
3. Launch Date. iNetNow shall be ready to support the i3 Mobile Service by the
Effective Date.
4. Law Enforcement. iNetNow agrees that it will cooperate with i3 Mobile in
connection with all law enforcement issues related to the i3 Mobile Concierge
Service.
5. Audit Rights. iNetNow shall maintain complete and accurate records with
respect to the calculation of all payments due under this Agreement. i3 Mobile
shall have the right, at its expense, to audit iNetNow's call records regarding
i3 Mobile customers for the purpose of verifying and tracking payment amounts.
Any audits made pursuant to this Section 5 shall be made not more than twice per
year, on not less then ten (10) days' written notice, during regular business
hours, by auditors chosen by i3 Mobile, including i3 Mobile employees. If the
auditor's figures reflect any overpayment by i3 Mobile under this Agreement,
then iNetNow shall pay the amount owed forthwith. If the auditors' figures
reflect an overpayment by i3 Mobile in excess of ten (10%) percent then iNetNow
shall pay the amount owed forthwith and reimburse i3 Mobile the reasonable
charges of the auditors.
6. Term. The term ("Term") of this Agreement shall commence on the Effective
Date and terminate on July 31, 2002 unless terminated sooner in accordance with
the terms of this Agreement. The Term shall thereafter rollover for successive
periods of one year until terminated by either party within a cancellation
period that begins 150 days prior to the end of any term and ends on the 120th
day prior to the end of such term. Notwithstanding the foregoing, i3 Mobile may
terminate this Agreement at any time upon 120-day written notice of termination
to iNetNow.
7. Marks. i3 Mobile hereby grants to iNetNow a non-exclusive, non-transferable
license to use, reproduce and display i3 Mobile's trademarks, service marks,
logos and the like solely for the purposes specified in this Agreement and in
accordance with i3 Mobile's established trademark usage policies and procedures.
iNetNow hereby grants i3 Mobile a non-exclusive, non-transferable license to
use, reproduce and display iNetNow's trademarks, service marks, logos and the
like solely for the purposes specified in this Agreement and in accordance with
iNetNow's established
trademark usage policies and procedures. Except as expressly stated herein,
neither party shall make any other use of the other party's marks. Upon request
of either party, the other party shall provide appropriate attribution of the
use of the requesting party's or immediately cease using such requesting party's
marks. In connection with the licenses granted hereunder, each party shall have
the unilateral right to establish such quality standards and additional terms
and conditions concerning the use of its trademarks as such party deems
necessary to reasonably protect its trademarks. Such licenses shall terminate
automatically upon the effective date of expiration or termination of this
Agreement. Use of either company's name in any advertising, promotion, or press,
must be mutually agreed to in writing by both parties in advance.
8. Representations and Warranties.
8.1 Corporate Power. Each party hereby represents and warrants that
such party is duly organized and validly existing under the laws of the state of
its incorporation and has full corporate power and authority to enter into this
Agreement and to carry out the provisions hereof.
8.2 Due Authorization. Each party hereby represents and warrants that
such party is duly authorized to execute and deliver this Agreement and to
perform its obligations hereunder.
8.3 Binding Agreement. Each party hereby represents and warrants that
this Agreement is a legal and valid obligation binding upon it and enforceable
with its terms, and that the execution, delivery and performance of this
Agreement by such party does not conflict with any agreement, instrument or
understanding, oral or written, to which it is a party or by which it may be
bound, nor violate any law or regulation of any court, governmental body or
administrative or other agency having jurisdiction over it.
8.4 Service. iNetNow represents and warrants that its professional Web
surfers and other employees, representatives, independent contractors and agents
(i) will provide the i3 Mobile Service in a professional and workmanlike manner;
and (ii) will not disparage or otherwise damage the name or reputation of i3
Mobile in their operation of the i3 Mobile Service.
8.5 iNetNow represents and warrants that (i) the i3 Mobile Service will
not violate or infringe upon the patent, copyright or other proprietary right of
any third party; and (ii) iNetNow is the owner or is otherwise licensed to use
any and all content delivered to users in connection with providing the i3
Mobile Service. In addition to all other rights available to i3 Mobile
hereunder, iNetNow shall defend or settle at its own expense any and all suits,
actions, proceedings or claims against i3 Mobile, charging that any part of the
i3 Mobile Service or any the use of any part of the i3 Mobile Service infringes
any patent, copyright, trade secret, trademark or other proprietary right of any
third party or entity. iNetNow shall pay i3 Mobile's actual costs, including
reasonable attorneys fees and all damages awarded in any such suit
The representations and warranties and covenants in this Section 8 are
continuous in nature and shall be deemed to have been given by each party at
execution of this Agreement and at each stage of performance hereunder. These
representations, warranties and covenants shall survive termination or
expiration of this Agreement.
9. Limitation of Warranty. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 8 ABOVE,
EACH PARTY EXPRESSLY DISCLAIMS ANY FURTHER WARRANTIES, EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE.
10. Insurance.
---------
10.1 Coverage. For the length of the Term, iNetNow agrees to maintain
valid and collectible insurance coverage of the following types with reputable
insurance companies with limits not less than $1,000,000 per
occurrence/$2,000,000 aggregate including: (a) commercial general liability; and
(b) "premises & operations" insurance. iNetNow shall provide i3 Mobile a
Certificate of Insurance as evidence of the foregoing and said Certificate shall
(1) include i3 Mobile and its successors and assigns as an additional insured,
and (2) stipulate that i3 Mobile will be given thirty (30) Days Advance Written
Notice of Cancellation or Non-Renewal with the words "endeavor to" or similar as
contained in the Certificate stricken from the Certificate. In the event that
one or more of iNetNow's coverage(s) is written on a "claims made" basis, the
Certificate shall further state the "retroactive date," if any; if no
retroactive date applies, the Certificate shall so state. So long as this
Agreement is in force, iNetNow shall also cause a renewal Certificate to be
issued not less than 30 days prior to the expiration date of each of the
coverages being evidenced. In the event iNetNow's coverage is written on a
"claims made" basis, iNetNow shall, following the termination or expiration of
this Agreement, continue to provide iNetNow a Certificate of Insurance
evidencing coverage for a period of not less than 3 years following said
termination or expiration. All Certificates of Insurance
shall be issued to i3 Mobile, Inc. and its subsidiaries and affiliates and their
respective successors and assigns and mailed to i3 Mobile, Inc., Attn:
Facilities Manager, 181 Harbor Drive, Stamford, CT 06902, or such other address
as i3 Mobile may stipulate.
10.2 Waiver of Subrogation. iNetNow waives all rights of subrogation it might
have against i3 Mobile or any of its parents, subsidiaries, affiliates,
officers, directors, shareholders, employees and agents for any and all claims
including but not limited to claims arising out of or related to bodily injury
of any nature, including death, personal or advertising injury of any nature,
property damage (tangible and/or intangible, including loss of use of property
that has not been not been physically damaged or destroyed), loss of revenue
whether direct, indirect, contingent or otherwise, or denial of service suffered
by iNetNow or any person or entity claiming by or through iNetNow whether such
loss or any part thereof is caused directly or indirectly by any errors, acts,
or omissions by i3 Mobile or any of its parents, subsidiaries, affiliates,
officers, directors, shareholders, employees and agents. Such waiver of
subrogation shall include any and all claims related to an interruption,
failure, or delay of the services provided by i3 Mobile no matter how caused.
11. Confidentiality.
11.1 Non-Disclosure Agreement. The mutual Confidentiality Agreement
entered into by and between i3 Mobile and iNetNow dated May 7, 2001 shall remain
in full force and effect.
12. Press Releases. This Agreement together with all exhibits shall be deemed
Confidential Information and no public statements concerning the existence or
terms of this Agreement shall be made or released to any medium except with the
prior approval of i3 Mobile and iNetNow or as required by law.
13. Termination.
13.1 By Either Party. Either party may terminate this Agreement if (a)
the other party files a petition for bankruptcy or is adjudicated bankrupt; (b)
a petition in bankruptcy is filed against the other party and such petition is
not dismissed within sixty (60) days of the filing date; (c) the other party
becomes insolvent or makes an assignment for the benefit of its creditors
pursuant to any bankruptcy law; (d) a receiver is appointed for the other party
or its business; (e) upon the occurrence of a material breach of a material
provision by the other party if such breach is not cured within thirty (30) days
after written notice is received by the breaching party identifying the matter
constituting the material breach; or (f) by mutual consent of the parties.
13.2 By i3 Mobile. i3 Mobile may terminate this Agreement for any or no
reason upon 120 days' written notice to iNetNow.
13.3 By iNetNow. Beginning in March, 2002, iNetNow may terminate this
Agreement in the event that gross revenue for the immediately preceding three
complete calendar months did not exceed a total of $250,000.00 upon 120 days'
written notice to i3 Mobile, such notice to be provided in the month following
the preceding three complete calendar months. Subject to the provisions of
Section 1.6, if i3 Mobile fails to pay to iNetNow any undisputed amount due
iNetNow under this Agreement when such amount is due, iNetNow may terminate this
Agreement ten (10) business days after i3 Mobile's receipt of iNetNow's written
notice of intent to terminate for nonpayment provided that full payment of the
undisputed amount is not received by iNetNow within said grace period.
14. Force Majeure. In the event that either party is prevented from performing,
or is unable to perform, any of its obligations under this Agreement due to any
cause beyond the reasonable control of the party invoking this provision, the
affected party's performance shall be excused and the time for performance shall
be extended for the period of delay or inability to perform due to such
occurrence.
15. Relationship of Parties. iNetNow and i3 Mobile are independent contractors
under this Agreement, and nothing herein shall be construed to create a
partnership, joint venture or agency relationship between iNetNow and i3 Mobile.
Neither party has authority to enter into agreements of any kind on behalf of
the other.
16. Assignment, Binding Effect. Neither i3 Mobile nor iNetNow may assign this
Agreement or any of its rights or delegate any of its duties under this
Agreement without the prior written consent of the other. Notwithstanding the
foregoing, i3 Mobile may assign this Agreement to any successor of i3 Mobile.
17. Choice of Law and Forum. This Agreement, its interpretation, performance or
any breach thereof, shall be construed in accordance with, governed by, and all
questions with respect thereto shall be determined by, the laws of the State of
California applicable to contracts entered into and wholly to be performed
within said state. Each party hereby consents to the personal jurisdiction of
the State of California, acknowledges that venue is proper in any state or
Federal court in Los Angeles, California and agrees that any action arising out
of or related to this Agreement must be brought exclusively in a state or
Federal court in the State of California, and waives any objection it has or may
have in the future with respect to any of the foregoing.
18. Good Faith. The parties agree to act in good faith with respect to each
provision of this Agreement and any dispute that may arise related hereto.
19. Counterparts and Facsimile Signatures. This Agreement may be executed in
multiple counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
20. No Waiver. The waiver by either party of a breach or a default of any
provision of this Agreement by the other party shall not be construed as a
waiver of any succeeding breach of the same or any other provision, nor shall
any delay or omission on the part of either party to exercise or avail itself of
any right, power or privilege that it has, or may have hereunder, operate as a
waiver of any right, power or privilege by such party.
21. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
assigns.
22. Severability. Each provision of this Agreement shall be severable from every
other provision of this Agreement for the purpose of determining the legal
enforceability of any specific provision.
23. Notices. All notice required to be given under this Agreement must be given
in writing and delivered either in hand; by certified mail, return receipt
requested, postage pre-paid; or by Federal Express or other recognized overnight
delivery service, all delivery charges pre-paid, and addressed:
If to i3 Mobile:
i3 Mobile, Inc.
181 Harbor Drive, Third Floor
Stamford CT 06902
Attention: General Counsel
If to iNetNow:
iNetNow, Inc.
4322 Wilshire Boulevard, Second Floor
Los Angeles CA 90010
Attn: General Counsel
All notices hereunder shall be deemed to be given or made when received (or upon
refusal of delivery).
24. Entire Agreement. This Agreement constitutes the entire understanding of the
parties hereto with respect to the transactions and matters contemplated hereby,
supersedes all previous agreements between i3 Mobile and iNetNow concerning this
specific subject matter, and cannot be amended except by a writing signed by
authorized representatives of both parties. No party hereto has relied on any
statement, representation or promise of any other party or with any other
officer, agent, employee or attorney for the other party in executing this
Agreement except as expressly stated herein. In the event of a conflict between
the terms of this agreement with any exhibit attached hereto, the terms of this
agreement shall prevail.
25. LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), ARISING FROM PERFORMANCE UNDER OR FAILURE OF PERFORMANCE OF ANY
PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES),
SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST
BUSINESS. IN ADDITION, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN
EXCESS OF THE AMOUNT RECEIVED BY SUCH PARTY UNDER THIS AGREEMENT.
NOTWITHSTANDING THE FOREGOING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 25 SHALL NOT APPLY IN THE
EVENT OF A BREACH OF SECTION 11 HEREOF OR CLAIMS ARISING UNDER SECTION 8.5 OR IN
THE EVENT OF ANY DAMAGES ARISING FROM THE INTENTIONAL MISCONDUCT OR GROSS
NEGLIGENCE OF EITHER PARTY.
26. Survival. All terms of this Agreement, which by their nature extend beyond
its termination, remain in effect until fulfilled, and apply to respective
successors and assigns.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date set forth above.
iNetNow, Inc.,
By: /s/ Errol M. Gerson
---------------------------------
Name: Errol M. Gerson
--------------------------------
Title: CEO
-------------------------------
i3 Mobile, Inc.
By: /s/ John A. Lack
---------------------------------
Name: John A. Lack
--------------------------------
Title: President and CEO
---------------------------------
EXHIBIT 1.1A
SERVICES
1) i3 Mobile will offer premium subscription services targeting the mobile
consumer. Part of the service, herein referred to as the "Mobile
Concierge," requires a service professional to answer incoming calls and
provide information or services as defined in Exhibit 1.1b. i3 Mobile
desires to have iNetNow operate as a call center, on behalf of i3 Mobile,
to provide the Mobile Concierge services. iNetNow will answer incoming
calls and perform requested services in exchange for fees detailed in
Exhibit 1.6a. iNetNow will also perform "Live Operator Backup" service in
addition to "Mobile Concierge" service. Live Operator backup consists of
answering calls that have failed to be handled by the Voice Recognition
platform and have been transferred to iNetNow for live operator assistance.
This service is detailed in Exhibit 1.1b.
2) Live operator backup and Mobile Concierge may be offered in the market by
i3 Mobile as a single, combined product, or as separate products. Term of
the deal is 1 year, beginning October 1, 2001 and is automatically
renewable unless terminated in writing 120 days before the end of the term
by either party. Notwithstanding, iNetNow will provide the services
required herein from the effective date hereof until the end of the term.
For such services provided from the effective date until October 1, 2001
iNetNow will invoice i3 Mobile at the end of each calendar month, which
invoices shall be paid net seven (7) days upon receipt by i3 Mobile.
3) This agreement can be terminated by i3 Mobile, at its sole discretion, with
120 days written notice.
4) The Mobile Concierge service will be branded by i3 Mobile, and all
references to the service will be made using i3 Mobile determined wording.
This will included recorded announcements, live operator customer
interactions, and any other reference to the i3Mobile Service.
5) i3 Mobile will pay iNetNow on a per minute basis, receiving volume
discounts, according to Exhibit 1.6a. Both parties agree to work together
in good faith to manage the average call length for i3 Mobile Services in a
cost effective manner.
6) i3 Mobile will pay for services, in advance, for the first six months of
service beginning October 1st (October 1, 2001 through March 31, 2002)
based upon the call volume forecast for that month. This payment will be
made two weeks prior to the beginning of the pre-paid month to accommodate
hiring and training iNetNow call center resources for Mobile Concierge
services, and will be based upon the call volume forecast provided by i3
Mobile on the first business day of each respective month (e.g. On
September 4 (first business day) i3 Mobile shall provide a volume forecast
to iNetNow for the month of October. The pre-payment for the month of
October, due on or about September 16, will be based on this
forecast.)Should actual call volumes exceed the monthly forecast, iNetNow
will invoice i3 Mobile the excess calls. If the actual call volumes are
less than the forecast, iNetNow will credit i3 Mobile (up to 10%) against
the following month's service fees. All payments are due and payable to
iNetNow net seven (7) days upon receipt of invoice from iNetNow for
services rendered.
7) After the first six months of service, i3 Mobile will pay for actual
services rendered, based upon the actual minutes incurred. Payments will be
due and payable net 30days from receipt of invoice.
8) i3 Mobile and iNetNow agree to review and adjust the call volume forecast
(Exhibit 1.6b) on a monthly basis, beginning October 1, 2001, in an effort
to handle hiring and training of iNetNow resources in the most cost
effective manner, and to effectively manage related expenses for i3 Mobile.
9) iNetNow will provide reports on a weekly basis detailing the number of
incoming calls, the average handle time per call, and the type of call
breakout.
10) iNetNow will provide dedicated local numbers, into their call center
facility used to identify i3 Mobile callers separately from other callers.
The local numbers will be used to direct the incoming 800 calls to.
Incoming Live Operator Backup calls will be answered differently than
Mobile Concierge calls.
11) 800 service numbers will be provided by, and paid for exclusively by
i3Mobile.
12) iNetNow will maintain a service level of 90% incoming calls answered within
10 seconds, and no greater than 2% abandoned calls within any daily period.
Reports of service levels, by month, by day, by hour, by shift, will be
provided to i3 Mobile on a weekly basis, but can be requested daily upon
exception.
13) Use of either company's name in any advertising, promotion, or press, must
be mutually agreed to by both parties in advance.
14) There is no exclusivity requested or required by either party.
15) iNetNow may, for subscribers who request a service outside the defined
scope of the i3 Mobile Service, perform an additional premium service (for
example, research) under the i3 Mobile brand. i3 Mobile will pay iNetNow
directly for this additional service in behalf of the subscriber who may
otherwise have been required to pay for a "premium" service on a one-off
basis. Payment for these ancillary services shall be due and payable 30
days after receipt of the invoice from iNetNow. iNetNow will provide
detailed reports (including number of calls, length of on-line and off-line
research/work, types of requests, etc.) on these requests on a monthly
basis to assist i3 Mobile in determining whether to include these requests
as part of a formal product offering. i3Mobile will do the consumer billing
for these ancillary services, if desired. i3 Mobile reserves the right to
alter or discontinue permitting iNetNow to provide these additional premium
services at any time. i3 Mobile will owe iNetNow for any additional premium
services provided prior to any changes in the service offering.
16) All data pertaining to i3 Mobile subscribers and/or services remains the
property of i3 Mobile and will be returned to i3 Mobile upon termination of
agreement. Any copies of the data maintained by iNetNow for operational
security will be destroyed. INetNow further agrees not to use any of the
data pertaining to i3Mobile subscribers without the express permission of
i3Mobile.
17) i3Mobile may, at its discretion, make available to iNetNow the results of
related "research", "focus groups" or any other related research pertaining
to the i3 Mobile Service offering for the purpose of improving the service.
EXHIBIT 1.1B
i3 MOBILE(TM)
PRODUCT DEFINITION
LIVE OPERATOR BACKUP & MOBILE CONCIERGE
[i3 MOBILE LOGO]
181 HARBOR DRIVE
STAMFORD, CT 06902
203.428.3000 (VOICE) 203.428.3073 (FAX)
Website: www.i3mobile.com
II. Product / Package Detail
Users have access to content, services and applications via multiple access
platforms. The product may be marketed and sold as two packages: "Gold" and
"Platinum", or combined into a single, all inclusive offering.
GOLD PACKAGE
Each of the following descriptive categories and corresponding content is
available via the following platforms:
o HTML: access to content on the Web, ability to provision self for timed and
event-triggered alerts
o 1-way SMS: for content profiled on the Web (e.g.; horoscope delivered to
user each morning at 8 am)
o 2-way SMS: on-demand content with a few keystrokes
o WAP: menu-driven access to content and applications from Web-enabled phones
o Voice: automated flat-menu, natural speech structure (e.g.; "Give me the
movie theaters in Stamford, Connecticut showing Shrek")
o Live operator backup to automated environment: operator answers questions
and commands automated system doesn't recognize, to ensure
user-satisfaction; fulfills ONLY those requests that automated system
should recognize, but doesn't due to incorrect command sequence, request of
non-supported content, inaudible request, or any other reason
Phone Mail: address book management and ability to send text messages to
wireless and desktop email addresses
o Adding and access to individual (addressee name, nickname, corresponding
MIN or email address) and distribution group (group name, individual
addressees contents, corresponding MINs or email addresses of each
addressee) entries.
o Composing text messages to an individual or distribution group entry. Users
must choose from a set of predefined messages.
Phone Fun: ringtones and graphics
o Users choose from hundreds of downloadable ringtones and graphics to
identify callers and personalize phones, options to send graphics as
picture messages to friends.
o Ability to create ringtones and graphics using i3's own ringtone and
graphics creators. Options to save user-created work and send to friends or
upload to i3 for inclusion in our library.
Instant Info: sending and receiving of all content services.
o Travel: Flight arrivals, departures, next direct flight, traffic conditions
and driving directions. Flight information available for all major domestic
airlines. Traffic conditions and incident reports by city, state and road.
Driving directions to and from any address or intersection, or any other
recognizable location the user has pre-provisioned on the Web interface.
o Directory Assistance: White and yellow page listings by name and/or
category, limited to city and state searches; reverse phone number look-up.
Enhanced directory assistance and proximity searches considered out of
scope, e.g.; "What's the closest dry cleaners to 181 Harbor Drive in
Stamford, Connecticut?"
o News Center: News content limited to headlines and the first three
paragraphs of the body of the user-specified story for the following news
categories: AP Top US News Headlines, AP Top International News Headlines,
AP Top Sports Headlines, AP Top Business Headlines, AP Top Technology
Headlines, AP Top Entertainment Headlines, AP US National News, AP Business
News, AP High Tech News, AP Central and South American News, AP European
News, AP Asian News, AP African News, AP Middle East News, AP Science and
Medical News.
o Weather: Weather conditions and forecasts for city, state or zip code.
o Cancellations: Cancellations, delays and closings by city, state or zip
code; by organization.
o Lottery: Lottery results and winning numbers by state and game name, Big
Game and Powerball multi-state games, and the following games not
associated with a single state: Daily Millions Red, Daily Millions White,
Rolldown, Tri-State Pick 3, Tri-State Pick 4, Tri-State Hard Cash,
Tri-State Win Cash, Tri-State Megabucks, Tri-West Lotto and Wild Card 2.
o Sports: News headlines and first three paragraphs of the body of the
user-specified story for baseball, football, basketball, hockey, golf,
soccer and tennis. In-season team news, limited to rest-of-story
restrictions above, for MLB (30 teams), NFL (32 teams), NHL (30 teams), and
NBA (29 teams). Final and in-progress scores for NFL, NBA, NHL, WNBA, MLS,
CFL, Minor League Hockey, Minor League Baseball, college football, college
basketball (men's and women's) and college hockey. Leaderboard and winners
of auto racing and professional golf events. NFL and MLB player news and
statistics. League leaders by statistical category for MLB, NFL, NHL and
NBA. League standings by division for NFL, NBA, NHL, MLB, auto racing,
professional golf, minor league hockey, CFL, MLS, WNBA, Minor League
Baseball. Schedules for all aforementioned sports, leagues and
corresponding teams. College rankings for football, basketball (men's and
women's) and hockey. Betting odds by team name and game for NFL, NBA, NHL,
MLB, NCAA football and NCAA men's basketball.
o Entertainment: Soap-opera updates by soap-opera name; joke-of-the-day.
General, sports and entertainment trivia - questions and answers.
Horoscopes by astrological sign, quote-of-the-day, this day in history, top
5 TV shows (ratings), top 5 singles, top 5 albums, top 5 box office leaders
(movies), AP TV News (rest-of-story restrictions apply), AP Movie News
(rest-of-story restrictions apply), AP Music News (rest-of-story
restrictions apply).
o Finance: Stock quotes, top gainers, losers and most active stocks for all
major US exchanges. Mutual funds information, company news and industry
news. All quotes delayed 15-20 minutes.
o Nightlife: Movie listings and showtimes by city and state or zip code, by
theater and movie title; movie reviews. Classical and performing arts
events by date, genre and venue. Restaurant reviews and listings by
restaurant name and city and state or zip code, by cuisine type and
neighborhood. * If listing found in Zagat database, information includes
street address, cross-street, neighborhood, phone number, hours of
operation, cuisine rating, decor rating, service rating, average cost per
person, and review. If not found, only the name, street address and phone
number of the restaurant are provided. Bar and club information (limited to
name, city and state of location, address, neighborhood, phone number,
hours of operation, category/type, review and description) by name after
city and state provided, category/type or neighborhood.
PLATINUM PACKAGE
Users have access to all Gold content and applications, with the addition of
24/7 access to a live operator, referred to hereafter as "Mobile Concierge".
Mobile Concierge provides users with a much broader spectrum of information
services via live operator, with operators equipped with a more robust set of
content and resources to draw from, as well as the autonomy to perform offline
labor on behalf of the caller.
Phone Mail: all Gold services, plus Mobile Concierge provides the following PIM
services:
o Calendar, Contact and Task Management - user-specified access to preferred
calendar, contact and task management provider. This may come in the form
of basic requests revolving around 3.0's Message Center, or management of
all aspects of calendar and contacts through other Web-based profiled,
personal, password-protected interface(s)/portal(s). User and operator have
access to all calendar and contact entries, enabling operator to act on
user's behalf and add, edit and delete appointments, contacts and tasks.
o Email transcription - correspondence from i3 Mobile Concierge email address
sent on user's behalf (200 character limit).
* No plans to integrate iNetNow calendar, address book, task manager and
other web-based content - with the exception of call history.
Phone Fun: all Gold services, no additional services provided.
Instant Info: all Gold services, plus Mobile Concierge provides:
o Travel:
o Driving directions sent to phone via SMS or email address
o Turn-by-turn driving directions
o Estimated travel times, route distances
o Alternate route suggestions for real-time traffic
o Cross-street lookups
o Train, subway, bus and mass transit schedules for most major cities
o Airline departure, arrival, status, gate information for any airline and
airport in the world
o * Ticket purchase not currently supported
o Directory Assistance:
o Phone number and address of business or residential listing sent via SMS to
phone, or email address
o Proximity/filtered directory searches (e.g.; "What's the closest dry
cleaners to 181 Harbor Drive?")
o Call-completion not currently supported
o News Center: more robust rest-of-story content, not limited to headlines
and introductory paragraphs
o Sports: more robust rest-of-story content
o Weather: conditions, forecasts and severe alerts for any city in the world
o Entertainment: more robust rest-of-story content
o Nightlife:
o Restaurant, bar and club reviews and recommendations from a variety of
online sources
o Reservations: confirmation sent via SMS, email, or call-back confirmation
follow-up
o Movie reviews, synopses and release dates
o Theater amenities, show availability
o Ticket purchases from "preferred" vendors
o Finance: more content, detailed company and industry information, access to
reports, filings, etc.
o Mobile Commerce: Monetary transaction completion
o Caller can house billing information with i3 Mobile, and can request and
authorize the operator to make a purchase. Only vendors who offer a
30-day/100% money-back guarantee, a no-hassle return policy, online order
tracking, a customer service department available through phone or email,
and the option to bill and to ship to different addresses are considered
"preferred" and in-scope.
o For example, purchasing a book from Amazon.com and shipping to
user-specified address.
o Development requirement to offer users option to house credit card numbers,
expiration dates, billing and shipping addresses, etc. in the Mobile
Concierge Web module of 3.0.
o Trivia and other information: callers can request virtually any information
accessible from the Web. Content overviews and anticipated popular uses in
this document do not reflect the resources available, training and aptitude
of Mobile Concierge operators to effectively field more obscure inquiries.
For example:
o Present water temperature at Bodega Bay, California
o Title of song "sampled" in Janet Jackson's latest single
o Blue book value of a 1992 Honda Civic DX Hatchback
o Comparison Shopping:
o Lowest prices from thousands of web merchants, as well as stores with
retail presence
o Product reviews and availability
o Purchases/monetary transaction completion from "preferred" vendors
o Proximity searches
For example, caller is at retail and wants to know if a particular
stereo model can be purchased cheaper elsewhere. Operator performs
business category directory search, finds stores carrying matching
models, performs price comparison, relays results. Provides driving
directions to alternate vendors. Also runs an online merchant vs.
retail vendor query to find better deal
o Event Information:
o Concert and other live performance information
o By venue, performer, city, date(s), etc.
o Ticket-purchase from "preferred" vendors
Other Mobile Concierge Features
o Product/Service Coupling: multiple questions and answers on a single call.
Concept behind Instant Info is the quick question/command, quick reply.
Brevity should remain a cornerstone of Mobile Concierge, but services
become more robust in this environment. For example, caller requests movie
showtimes for a particular film at a theater; mentions he or she would also
like a recommendation for a Thai restaurant in the area. Operator responds
with all showtimes, simultaneously performs a search for Thai restaurants
in area. Provides directory assistance, offers to make a reservation and
driving directions to the restaurant from the theater.
Authentication
User authentication will be necessary for subscribers of either Gold or Platinum
packages to ensure proper call handling and ensuing options. Authentication will
come in two forms:
1. ANI - for callers already provisioned with a device (and corresponding
phone/account number and PIN), who aren't roaming and are identifiable
without being prompted for account information. If call ultimately routes
to a live (backup or Mobile Concierge) operator, the call center should
confirm caller identification if not already validated.
2. Account Number & PIN - for all other calls, users will step through an
automated system prompting them for (a) account number, either via voice or
by entering on keypad (b) PIN, either via voice or by entering on keypad.
Enhanced Services: Out-of-Scope
Mobile Concierge is designed to provide users with information quickly, keeping
every call fluid and each caller satisfied by keeping air-time short and
information accurate. The resources available to operators could certainly
support in-depth research services and more traditional time-consuming concierge
tasks, but in keeping with our "swift and accurate" strategy, leaving as little
as possible to the operator's discretion, and simplified billing easily
integrated with carrier partners - any services not meeting the general
"air-time" and offline "not-ready" rules will be considered out-of-scope for the
initial release. We should, however, make an effort to gauge the interest-level
of our users to determine varying levels of service for subsequent releases.
Examples of out-of-scope services include:
Compilation
Detailed lists and product comparisons, historic financial information,
statistics. Extensive estimated time for completion. Examples include:
o All the songs Bing Crosby recorded between 1949-1950
o Contact phone numbers for the top 50 companies on the Fortune 500 list
Research
In-depth research on a particular subject. Extensive estimated time for
completion. Examples include:
o History: War of 1812. Background, battles, key people
o Science: Fuel cells. How they work, what they're used for, who invented
them
Corporate Profiles
Background information on key executives, financial information, industry
information, major competitors, contact information, company history. Extensive
estimated time for completion.
EXHIBIT 1.3
OVERVIEW
To Be Provided
Confidential Information omitted where indicated by "[*]" and filed separately
with the Commission pursuant to a request for confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934.
EXHIBIT 1.6A
Fee Schedule
1. i3 Mobile will pay iNetNow on a per minute basis, receiving volume
discounts, according to the following schedule:
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I3Mobile Pricing Model
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