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 10.19
VOXEO CORPORATION SUBSCRIBER SERVICES AGREEMENT NO. 218
This Voxeo Corporation Subscriber Services Agreement No. 218 is made this
September 28, 2001 ("Effective Date") by and between VOXEO Corporation, a
Delaware Corporation with offices at 100 Enterprise Way, Scotts Valley, CA
95066 (hereinafter "VOXEO") and i3 Mobile, Inc., a Delaware Corporation with
offices at 181 Harbor Drive, Stamford, CT 06902 (hereinafter "Customer").
1. DEFINITIONS
1.1. "Customer Applications" shall mean web pages, software applications, code,
information and data owned or controlled by Customer that are used by
Customer or its end users for interacting with the Subscriber Services,
including software applications designed by Customer or its designees using
the development software made available by Voxeo.
1.2. "Customer Content" shall mean data, information, files, software, scripts,
images, graphics, audio, video, text, and any other object or information,
whether in written or audio form (e.g., voice messages), transmitted to or
from the Voxeo Network by Customer or its end users through use of the
Subscriber Services.
1.3. "Service Fee" shall mean the fees for use of the Subscriber Services, as
specified in Exhibit A of this Agreement.
1.4. "Subscriber Services" shall mean the services provided by Voxeo to Customer
as specified in Exhibit A of this Agreement.
1.5. "Term" shall mean the period from the Effective Date until any expiration
or termination of this Agreement in accordance with Section 10.
1.6. "Voxeo Network" shall mean Voxeo's servers and infrastructure that are made
generally available by Voxeo to Customer and its end users for the
provision of the Subscriber Services.
2. SUBSCRIBER SERVICES
2.1. Delivery of Services. Voxeo shall provide Subscriber Services to Customer
during the Term, subject to the terms and conditions set forth herein.
Voxeo shall not be liable for any delays or failure to perform to the
extent that such delay or failure results from Customer's failure to timely
provide any information, content or other deliverables reasonably necessary
to provide the Subscriber Services to Customer.
2.2. Professional Services. This Agreement does not include professional or
consulting services. On Customer's request and the parties' mutual
agreement, Voxeo may provide such services under a separate written
agreement.
2.3. Network Security. Voxeo shall use commercially reasonable efforts to
monitor and protect against unauthorized access to Customer Content while
on or within the Voxeo Network. Customer acknowledges, however, that the
portion of the Voxeo Network through which Customer Content will pass and
the servers on which Customer Content will be stored will not be segregated
or in a separate physical location from servers on which Voxeo's other
customers' content is or will be transmitted or stored.
3. CUSTOMER RESPONSIBILITIES
3.1. General. Customer shall be solely responsible for, and Voxeo is not liable
for Customer's failure in, (a) properly configuring, developing,
programming, hosting and operating its hardware, software, web sites,
Customer Content and all Customer Applications, and their respective
telephone and Internet connections, to allow access to and use of the Voxeo
Network and Subscriber Services in accordance with the documentation
provided by Voxeo and all applicable protocols and requirements of the
Voxeo Network; (b) using commercially reasonable efforts to test all
Customer Applications and Customer's web sites prior to use in connection
with the Voxeo Network and the Subscriber Services; (c) ensuring
compatibility of the Customer Applications with the Voxeo Network and
Voxeo's protocols; and (d) providing any connections necessary to
communicate with the Voxeo Network.
3.2. Customer Content. Customer is and shall be solely responsible for the
creation, editorial content, control, and all other aspects of Customer
Content. Customer represents and warrants to Voxeo that Customer has
obtained (or will obtain, prior to transmission to the Voxeo Network) all
authorizations and permissions required to use and transmit the Customer
Content over the Voxeo Network as part of the Subscriber Services.
3.3. Lawful Purposes. Customer agrees that it will use the Subscriber Services
only for lawful purposes and in accordance with this Agreement. Customer
shall comply with all applicable laws and regulations when using the
Subscriber Services or accessing the Voxeo Network, including without
limitation, compliance with applicable international export and privacy
laws, privacy policies of Customer and third parties and other laws
regarding the transfer and/or transmission of data.
3.4. Unauthorized Use. Customer will be responsible for, and shall pay any
applicable Service Fees associated with, any unauthorized use by Customer
or Customer's end-users of the Subscriber Services, telephone numbers
assigned to Customer, and Customer's account. In the event Customer becomes
aware of such unauthorized use, Voxeo will issue to Customer, at Customer's
request, replacement telephone number(s) for use with the Subscriber
Services.
3.5. Traffic 'Spikes'. Customer shall provide written notice to Voxeo in the
event Customer has reason to believe that usage of the Subscriber Services
by Customer or its end users is likely to increase by twenty-five percent
(25%) or more ("spike") for any reason (including, without limitation, due
to an advertising campaign conducted by Customer; due to expected daily,
weekly, monthly or seasonal usage variations; etc.). Customer shall use
best reasonable efforts to provide such notice to Voxeo as far in advance
of the expected spike as reasonably possible.
3.6. Customer Application(s). Customer represents that Exhibit A contains a
description of the Customer Applications that Customer intends to use in
connection with the Subscriber Services during the Term. Customer shall not
use the Voxeo Network with any application other than the Customer
Application(s) without prior notice and approval by Voxeo, which approval
shall not be unreasonably withheld.
3.7. Critical Applications. Customer acknowledges and agrees that the Subscriber
Services and the Voxeo Network are not designed, intended, authorized or
warranted to be suitable for hosting life-support applications or other
critical applications where the failure or potential failure of the
Subscriber Services or the Voxeo Network can cause injury, harm, death, or
other grave problems, including, without limitation, loss of aircraft
control, hospital life-support systems, and delays in getting medical care
or other emergency services. Customer acknowledges and agrees that use of
the Voxeo Network and/or the Subscriber Services to support such
applications is fully at the risk of the Customer and that Customer assumes
all risk arising out of such use.
3.8. No Viruses. Customer represents and warrants to Voxeo that no Customer
Content shall be knowingly transmitted by Customer or its end users through
the Voxeo Network containing any program, routine or device which is
designed to delete, disable, deactivate, interfere with or otherwise harm
any software, program, data, device, system or service, including without
limitation, any `time bomb', virus, drop dead device, malicious logic,
worm, Trojan horse or trap or back door (collectively, "Harmful Code").
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.
4. PAYMENT TERMS
4.1. Service Fees. Customer shall pay to Voxeo the Service Fees specified in
Exhibit A. Customer shall be required to pay the Service Fees [*]
(including testing, development and production usage) on the Voxeo Network
related to Customer's Application. Testing on the Voxeo Developer network
as a member of the Voxeo Developer community is not governed by this
Agreement. Prior to the expiration of the Initial Term, Voxeo shall notify
Customer of any Service Fees adjustment for the Subscriber Services that
shall apply for the Renewal Term.
4.2. Invoice and Payment. Voxeo shall bill the Service Fees on a monthly basis
to the billing address and contact set forth on Exhibit A to this
Agreement. Except for disputed amounts, payment of all invoices is due net
thirty (30) days after receipt of invoice. With respect to any disputed
amounts in an invoice, Customer shall not be required to pay such disputed
amounts; however, Customer shall immediately notify Voxeo in writing
regarding such disputed amount and the parties will work together in good
faith to resolve any such dispute as soon as practicable. All fees quoted
and payments made hereunder shall be in U.S. Dollars. Customer's billing
address and contact can be changed upon written notice to Voxeo.
4.3. Late Payments. Service Fees not paid when due shall accrue late charges at
a rate of 1.5% per month, or the maximum rate allowed under law, whichever
is lower, from the date such payment was due until the date paid.
4.4. Taxes. Customer shall be responsible for all sales taxes, use taxes, value
added taxes, withholding taxes and any other similar taxes and charges of
any kind imposed by any federal, state or local governmental entity on the
transactions contemplated by this Agreement, excluding only U.S. taxes
based solely upon Voxeo's income. When Voxeo has the legal obligation to
pay or collect taxes for which Customer is responsible pursuant to this
Section 4.4, the appropriate amount shall be invoiced to and paid by
Customer unless Customer provides Voxeo with a valid tax exemption
certificate authorized by the appropriate taxing authority.
5. PERFORMANCE STANDARDS
5.1. Service Uptime. 5.1 Service Uptime. Voxeo shall use commercially reasonable
efforts to maintain a Service Uptime of 99%, which translates into
unavailability of the Subscriber Services of no more than approximately
seven (7) hours in any given month. In this Agreement, "Service Uptime"
means the period in which equipment and software under the sole control of
Voxeo are capable of receiving and processing service requests received
from Customer and its end users via the public Internet and/or
telecommunication network. Voxeo shall not be responsible for equipment and
software not under the sole control of Voxeo. Customer's sole remedy and
Voxeo's sole liability for failure to meet the Service Uptime standard
provided in this Section 5.1 is set forth in Section 5.4.
5.2. Service Outages. In the event Voxeo discovers, or Customer notifies Voxeo
regarding, a problem associated with the Subscriber Services, Voxeo will
use commercially reasonable efforts to determine whether the source of the
problem is limited to Voxeo's infrastructure within two (2) hours of such
discovery or notification. If the source of the problem is limited to
Voxeo's infrastructure, Voxeo will use commercially reasonable efforts to
remedy the problem within an additional two (2) hours. If the source of the
problem and/or remedy resides outside of Voxeo's infrastructure, Voxeo will
use commercially reasonable efforts to notify the responsible party(ies)
and cooperate with it (them) to resolve such problem as soon as possible.
5.3. Limitations. The performance standards set forth in this Section 5 are
subject to the following limitations:
5.3.1. Scheduled Maintenance. Voxeo reserves regularly scheduled
maintenance windows in order to maintain and upgrade Voxeo's
infrastructure. Regularly scheduled maintenance occurs on Saturdays
between 1am and 3am local point of presence time. Voxeo shall not be
responsible for service outages caused by such regularly scheduled
maintenance.
5.3.2. Customer Responsibility. The performance standards set forth in this
Section 5 do not include service outages caused directly by
Customer, by its Customer Applications, by applications on
Customer's servers, by problems associated with Customer's web
servers or telephone service, failure of internet connectivity
due to Customer's or its suppliers equipment or services or by
Customer specifications that do not meet Voxeo's compatibility
requirements.
5.4 Uptime Remedy. At Customer's request, Voxeo shall provide Customer a one
(1) day Subscriber Service credit for each continuous full hour the
Subscriber Services are non-accessible to Customer and/or its outside end
users during any month due to Voxeo's fault, provided that no such remedy
shall be available for the first seven (7) hours that the Subscriber
Services are unavailable in any month. Each such Subscriber Service credit
shall be deducted from Customer's monthly payment, in an amount equal to
the total Service Fees owed for the subject month, divided by the number of
days in such month. In no event shall the number of such Subscriber Service
credits provided to Customer exceed ten (10) Subscriber Service credits in
any given month. Such service credits shall not be provided for service
outages for which any of the limitations set forth in Section 5.3 apply.
6. DESIGNATED CONTACTS
Each party shall appoint in writing an employee or agent of such party to
act as the "Designated Contact" for all communication between the parties
related to the Subscriber Services and one (1) back up contact, all
identified on Exhibit A. The Designated Contacts shall monitor the status
of the Subscriber Services and shall be the point of contact between the
parties with respect to the Subscriber Services. Either party may change
its Designated Contact upon written notice to the other party. Customer
agrees that only the Customer Designated Contact (or the identified backup)
shall be permitted to contact Voxeo for problems with or other issues
relating to the Subscriber Services. Customer agrees that it shall not
contact any employee or representative of Voxeo other than Voxeo's
Designated Contact (or the identified backup) regarding such problems or
issues.
7. INTELLECTUAL PROPERTY
7.1. Ownership. All right, title, and interest, including all intellectual
property rights in the Subscriber Services and any associated hardware and
software of Voxeo or its licensors, and any updates, upgrades or
modifications thereof, or in any ideas, know-how, and programs developed by
Voxeo or its licensors during the course of performance of this Agreement
shall remain the property of Voxeo or its licensors. All right, title, and
interest in Customer Applications and any Customer Content communicated via
Voxeo's infrastructure through use of the Subscriber Services and any
Customer Applications shall remain the sole property of Customer.
7.2. Restrictions. Customer shall not: (i) disassemble, reverse engineer,
decompile, or otherwise attempt to derive source code from the software or
documentation, modify, adapt, create derivative works based upon, or
translate any software or documentation owned and/or provided by Voxeo
("Voxeo Software and Documentation"); (ii) copy, install or use Voxeo
Software or Documentation on any of its computer systems, servers, or
networks without Voxeo's prior written consent; or (iii) transfer, lease,
loan, resell for profit, distribute or otherwise grant any rights in the
Voxeo Software or Documentation in any form to any other party, including
commercial time-sharing, rental, or service bureau use. Voxeo shall not:
(i) disassemble, reverse engineer, decompile, or otherwise attempt to
derive source code from the software or documentation, modify, adapt,
create derivative works based upon, or translate any software or
documentation owned and/or provided by Customer ("Customer Software and
Documentation"); (ii) copy, install or use Customer Software or
Documentation on any of its computer systems, servers, or networks without
Customer's prior written consent; or (iii) transfer, lease, loan, resell
for profit, distribute or otherwise grant any rights in the Customer
Software or Documentation in any form to any other party, including
commercial time-sharing, rental, or service bureau use.
8. CONFIDENTIAL INFORMATION
8.1. Definition. "Confidential Information" means any information disclosed by
either party to the other party under this Agreement, either directly or
indirectly, in writing, orally or by inspection of tangible objects
(including, without limitation, documents, software, facilities, equipment
and operating plans). Confidential Information may also include information
disclosed to a disclosing party by third parties. Confidential Information
shall not, however, include any information which (i) was publicly known
and made generally available in the public domain prior to the time of
disclosure by the disclosing party; (ii) becomes publicly known and made
generally available after disclosure by the disclosing party to the
receiving party through no action or inaction of the receiving party; (iii)
is already rightfully in the possession of the receiving party at the time
of disclosure by the disclosing party as shown by the receiving party's
files and records immediately prior to the time of disclosure; (iv) is
obtained by the receiving party from a third party without a breach of such
third party's obligations of confidentiality; (v) is independently
developed by the receiving party without use of or reference to the
disclosing party's Confidential Information; (vi) represents general
conceptual information (as compared to, e.g., specific technical or
financial information, specific product offerings or specific product
ideas) which is incidentally retained in the memories of persons who have
had access to Confidential Information and which is disclosed by such
persons without any intention of breaching the confidentiality restrictions
contained herein; or (vii) is required by law to be disclosed by the
receiving party, provided that the receiving party gives the disclosing
party prompt written notice of such requirement prior to such disclosure
and assistance in obtaining an order protecting the information from public
disclosure.
8.2. Non-use and Non-disclosure. Each party agrees not to use any Confidential
Information of the other party except as expressly permitted in this
Agreement or as expressly authorized. Each party agrees not to disclose any
Confidential Information of the other party, to third parties or to such
party's employees, except as provided in Section 8.3 and 8.4 below.
8.3. Terms of Agreement. Each party agrees that the terms and conditions of this
Agreement will be treated as the other parties Confidential Information and
that no reference to the terms and conditions of this Agreement may be made
in any form of press release or public statement without first consulting
with the other party; provided, however, that each party may disclose the
terms and conditions of this Agreement: (i) as may be required by law, if
such party notifies the other party of such requirement prior to such
disclosure in sufficient time to enable the other party to seek a
protective order covering such disclosure; (ii) to legal counsel of the
parties in connection with the enforcement of this Agreement or rights
under this Agreement, provided such counsel is informed of his/her
obligation to keep such disclosure in confidence with the same degree of
care as the party's other Confidential Information; (iii) in connection
with the requirements of an initial public offering or securities filing
provided such party seeks confidential treatment of the terms and
conditions of this Agreement as appropriate; (iv) to accountants, banks an
financing sources and their advisors; and (v) in connection with a merger
or acquisition or proposed merger or acquisition or the like.
8.4. Maintenance of Confidentiality. Each party agrees that it shall take
reasonable measures to protect the secrecy of and avoid disclosure and
unauthorized use of the Confidential Information of the other party.
Without limiting the foregoing, each party shall take at least those
measures that it takes to protect its own most highly confidential
information but in no circumstances less than reasonable care. Neither
party shall disclose the other party's Confidential Information to any
person or entity other than its officers, employees, consultants and legal
advisors who need access to such Confidential Information in order to
effect the intent of this Agreement and who have entered into written
confidentiality agreements with it consistent with this Section 8.4, prior
to any disclosure of Confidential Information to such officers, employees,
consultants and legal advisors. Neither party shall make any copies of the
Confidential Information of the other party unless the same are previously
approved in writing by the other party. Each party shall reproduce the
other party's proprietary rights notices on any such approved copies, in
the same manner in which such notices were set forth in or on the original.
8.5. Remedies. Each party acknowledges that a breach of this Section 8 would
cause irreparable harm to the non-breaching party, the extent of which
would be difficult to ascertain. Accordingly, the parties agree that, in
addition to any other remedies to which the non breaching party may be
legally entitled, the non-breaching party shall have the right to obtain
immediate injunctive relief from a court of competent
jurisdiction in the event of a breach of this Section 8 by the other party
or any of its officers, employees, consultants or other agents. The parties
further agree that no bond or other security shall be required in obtaining
such equitable relief and the parties hereby consent to the issuance of any
such injunctive relief.
8.6. OTHER BUSINESS ACTIVITIES:
(a) Each of the parties agree that the other party may currently or in the
future acquire information, either independently developed or legally
received from third parties, which may be similar to the Confidential
Information. Nothing in this Agreement will be construed as a
representation that the receiving party does not or will not have such
independently developed or legally received information.
(b) Nothing in this Agreement will be construed as a representation or
agreement to restrict assignment or reassignment of the receiving party's
employees, or in any manner to affect or limit either party's present and
future business activities of any nature, including business activities
which could be competitive with the disclosing party. The parties each
acknowledge that they are aware that the other is currently discussing
similar transactions with other parties, including competitors of each of
the parties, as the case may be. This Agreement imposes no obligation on
either Party to purchase, sell, license, transfer, or otherwise dispose of
any technology, services, or products. This Agreement does not create any
agency or partnership relationship. This Agreement does not bind the
parties to enter into any further agreement or arrangement with the other.
(c) Nothing in this Agreement will be construed as a representation or
agreement that either party will not develop or have developed for it
products, concepts, systems or techniques contemplated by or embodied in
the Confidential Information, provided that the receiving party does not
violate any of its obligations under this Agreement in connection with such
development.
9. MARKETING
9.1. Press Releases. Neither party may issue a press release announcing the
relationship contemplated by this Agreement without the prior written
consent of the other which consent may be withheld in the sole discretion
of such party.
10. TERM AND TERMINATION
10.1. Term. This Agreement shall become effective on the Effective Date and
shall continue for a period of one (1) year from the Effective Date unless
earlier terminated in accordance with the terms of this Agreement (the
"Initial Term"). The Agreement shall automatically renew on an annual
basis unless notice of termination is issued by Customer or Voxeo at least
forty-five (45) days prior to termination (each a "Renewal Term").
10.2. Termination. This Agreement may be terminated as follows:
10.2.1. If Customer fails to make any payment due hereunder within
thirty (30) days after receiving written notice from Voxeo that
such payment is delinquent or objects in writing to any Service
Fee adjustment as provided in Section 4.1 within fifteen (15)
days after receiving notice of such adjustment, Voxeo may
terminate this Agreement on written notice to Customer at any
time following the end of such thirty (30) day period or such
fifteen (15) day period, as applicable.
10.2.2. If either party materially breaches any term or condition of
this Agreement and fails to cure such breach within thirty (30)
days after receiving written notice of the breach, the
non-breaching party may terminate this Agreement on written
notice at any time following the end of such thirty (30) day
period.
10.2.3. This Agreement shall terminate immediately upon notice if
either party becomes insolvent or makes an assignment for the
benefit of creditors.
10.3. Survival. The following sections shall survive the termination or
expiration of this Agreement for any reason: 7.1, 7.2, 8, 10.3, 11, 12, 13
and 14 and any payment obligations incurred prior to the expiration or
termination of this Agreement.
11. INDEMNIFICATION
11.1. By Customer. Customer shall defend Voxeo and it directors, officers
and employees from and against all claims, demands, suits or
proceedings made or brought against Voxeo, and shall pay or reimburse
Voxeo for any and all damages, costs and expenses payable by Voxeo to
the party bringing such action to the extent that they are awarded in
a final judgment or agreed to in settlement, as a result of (a) a
claim against Voxeo alleging that Customer's web site or any Customer
Content directly infringes a copyright, trademark or patent or other
intellectual property or proprietary right of a third party, (b) a
claim against Voxeo based upon the Customer Content or the use or
transmission thereof by Voxeo in connection with performing the
Subscriber Services, or the content of Customer's web site, including
but not limited to claims of defamation, invasion of privacy, or the
violation of any right of publicity or other rights of any person or
entity, (c) a claim against Voxeo alleging that the storage or
transmission of any Customer Content by Voxeo in the course of
performing the Subscriber Services violates any law, rule, regulation
or court order, (d) any use of the Subscriber Services by Customer in
violation of this Agreement, (e) any use of the Subscriber Services or
the Voxeo Network by the Customer or its end users for any critical
application described in Section 3.7, or (f) any transmission by
Customer or its end users of any Harmful Code to or through the Voxeo
Network; provided that Voxeo: (i) gives written notice of the claim
promptly to Customer, (ii) gives Customer sole control of the defense
and settlement of the claim, (iii) provides to Customer all available
information and assistance, and (iv) has not compromised or settled
such claim without Customer's prior written consent.
11.2. By Voxeo. Voxeo shall defend Customer and it directors, officers and
employees from and against all claims, demands, suits or proceedings
made or brought against Customer, and shall pay or reimburse Customer
for any and all damages, costs and expenses payable by Customer to the
party bringing such action to the extent that they are awarded in a
final judgment or agreed to in settlement, as a result of a claim
against Customer alleging that the Subscriber Services directly
infringe a copyright, trademark or patent or other intellectual
property or proprietary right of a third party, except for claims for
which Customer is obligated to indemnify under Section 11.1, provided
that Customer: (i) gives written notice of the claim promptly to
Voxeo, (ii) gives Voxeo sole control of the defense and settlement of
the claim, (iii) provides to Voxeo all available information and
assistance, and (iv) has not compromised or settled such claim without
Voxeo's prior written consent.
12. WARRANTY AND DISCLAIMER
12.1. Warranty. Voxeo warrants to Customer that (a) it has the right and
authority to enter into this Agreement and (b) it shall perform the
Subscriber Services and its obligations hereunder in a commercially
reasonable, professional and workmanlike manner. Customer warrants to
Voxeo that it has the right and authority to enter into this
Agreement.
12.2. Disclaimer. Voxeo does not warrant that the Subscriber Services shall
meet all of Customer's requirements, or that the use of the Subscriber
Services shall be uninterrupted or error-free. Except as set forth in
Section 5, THE SUBSCRIBER SERVICES ARE PROVIDED TO CUSTOMER ON AN "AS
IS" BASIS. VOXEO MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE SUBSCRIBER SERVICES
OR ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER
UNDER THIS AGREEMENT. VOXEO SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT.
13. LIMITATION OF LIABILITY
EXCEPT FOR GROSSLY NEGLIGENT OR INTENTIONAL MISCONDUCT AND EXCEPT FOR
CUSTOMER'S OBLIGATION TO PAY THE SUBSCRIBER FEES, IN NO EVENT SHALL
EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT
EXCEED THE SUM OF FEES PAID BY CUSTOMER TO VOXEO. IN NO EVENT SHALL
EITHER PARTY OR THEIR LICENSORS, OR ITS SUPPLIERS HAVE ANY LIABILITY
TO THE OTHER FOR ANY LOST PROFITS, LOSS OF DATA, BUSINESS
INTERRUPTION, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING
NEGLIGENCE) AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE PARTIES
AGREE THAT THIS SECTION 13 REPRESENTS A REASONABLE ALLOCATION OF RISK.
14. GENERAL PROVISIONS
14.1. Assignment. Neither party may assign any of its rights or delegate any
of its obligations under this Agreement, whether by operation of law
or otherwise, without the prior express written consent of the other
party; provided, however, that either party may assign this Agreement
without such consent in connection with a merger, corporate
reorganization or sale of all or substantially all of its assets. Any
attempted assignment in violation of this Section 14.1 shall be null
and void. Subject to the foregoing, this Agreement shall bind and
inure to the benefit of the parties, their respective successors and
permitted assigns.
14.2. Waiver and Amendment. No modification, amendment or waiver of any
provision of this Agreement shall be effective unless in writing and
signed by the party to be charged. No failure or delay by either party
in exercising any right, power, or remedy under this Agreement, except
as specifically provided herein, shall operate as a waiver of any such
right, power or remedy.
14.3. Choice of Law. This Agreement and any dispute arising from the
performance or breach hereof shall be governed by and construed and
enforced in accordance with, the laws of the United States and the
State of California, USA, excluding conflict of laws provisions and
excluding the 1980 United Nations Convention on Contracts for the
International Sale of Goods.
14.4. Relationship of Parties. The parties are independent contractors.
Neither party shall be deemed to be an employee, agent, partner or
legal representative of the other for any purpose and neither shall
have any right, power or authority to create any obligation or
responsibility on behalf of the other.
14.5. Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, such provision shall be
changed and interpreted so as to best accomplish the objectives of the
original provision to the fullest extent allowed by law and the
remaining provisions of this Agreement shall remain in full force and
effect.
14.6. Force Majeure. Except for Customer's obligations to pay money, neither
party shall be deemed to be in breach of this Agreement for any
failure or delay in performance caused by reasons beyond its
reasonable control, including but not limited to acts of God,
earthquakes, strikes or shortages of materials.
14.7. Headings and References. The headings and captions used in this
Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.
14.8. Counterparts. This Agreement may be executed via facsimile in any
number of counterparts, all of which taken together shall constitute
one and the same agreement.
14.9. Complete Understanding. This Agreement, including all Exhibits,
constitutes the final, complete and exclusive agreement between the
parties with respect to the subject matter hereof, and supersedes any
prior or contemporaneous agreement, proposal, warranties and
representations
IN WITNESS WHEREOF the parties have caused this Agreement to be
executed by their duly authorized representative as of the date first
set forth above.
i3 MOBILE, INC. VOXEO CORPORATION
By: /s/ Wes Trager By: /s/ Daniel J. Kaplan
--------------------------------- --------------------------------
Print Name: Wes Trager Print Name: Daniel J. Kaplan
------------------------ -------------------------
Title: C.T.O Title: VP Finance
----------------------------- -----------------------------
Date: 9-28-01 Date: 10/3/01
------------------------------- -------------------------------
EXHIBIT A TO SUBSCRIBER SERVICE AGREEMENT NO. 218
ADDITIONAL TERMS
1. SUBSCRIBER SERVICES:
Subject to the terms and conditions of this Agreement, Voxeo will grant to
Customer access to the Voxeo Network for commercial use as set forth below,
as may be amended from time to time by mutual written agreement.
Number of Local Telephone Numbers: 0
Number of Toll-Free Telephone Numbers: 1
Voxeo shall establish an isolated network environment to support Customer's
Application with the availability of up to Five Hundred (500) ports
configured as follows:
o Windows NT operating system with service pack 6
o Nuance 7.0.4
o Foundation SpeechObjects 1.1
o H.323 as the telephony interface
o Text-to-Speech engine
The Voxeo Network provides a platform for enabling Customer to operate
integrated Internet and telephone applications, such as instant
notification, unified messaging, intelligent call routing, IVR replacement,
and phone access to web content. Each network server includes interfaces
and associated software that support a variety of Internet, speech, and
telephone capabilities. Each network server is also connected to the
Internet and the Public Switched Telephone Network (PSTN) via communication
links and telephone lines supplied to Voxeo by data centers and/or
telecommunication providers. The Voxeo Network provides a platform for
interfacing with Customer Applications (hosted by Customer or Customer's
designees) and enables such Customer Applications to control outbound and
inbound traffic communicated through the Voxeo Network. For outbound
traffic, the network infrastructure responds to resource requests from
Customer Applications to communicate the outbound traffic via the Internet
or telephone link in accordance with the resource request. For inbound
traffic, the network infrastructure routes the traffic in accordance with
instructions from the Customer Application. Voxeo will not be responsible
for the development and/or testing of Customer Applications, except to the
extent such development and/or testing is provided under a separate written
agreement between Voxeo and Customer.
Customer's Application will provide for remote access to an SQL database
maintained by Customer that contains the relevant data required by such
Customer Application.
2. DESCRIPTION OF CUSTOMER APPLICATION(S):
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Application Type: Customer built Voice Application
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Description of Application: portal services including weather, stock
quotes, horoscope and lottery information made available.
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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.
3. SERVICE FEES:
Customer shall pay fees as follows:
Service Fees. [*] Dollars [*] per month for the first [*]; for each [*]
each month, Customer shall pay Voxeo [*].
Up Front Fee. The first two (2) months of Services Fees (for a total
of [*] Dollars [*] shall be paid up front (the "Up Front Fee"). The Up
Front Fee shall be due and payable no later than ten (10) days after
execution of the Agreement and shall be credited toward the first two
(2) months of Service Fees.
The Service Fees apply for the Subscriber Services as described in this
Attachment A. In the event Customer desired that Voxeo offer additional
or new features or requests a new or different sequestered environment,
the parties shall agree on the appropriate charges for such changes. In
addition, if either party requests a change to the configuration of the
Customer's sequestered environment, if such change is acceptable to
both parties, then the parties shall agree on the fees, if any,
required to implement such change, and shall enter into an amendment to
this Agreement to that effect.
4. BACK-UP AND RECOVERY CAPABILITIES
Voxeo will provide Customer back-up and recovery capabilities as follows:
o POP-Level Redundancy: Voxeo.NET consists of several self-sustaining points of
presence (POPs) in carrier-grade collocation facilities across the US. In
addition, Voxeo relies on fault-tolerant equipment for voice call processing, IP
routing, application gateways and its network management infrastructure.
o Redundant Telco Connectivity: Voxeo connects to its long distance and local
providers via divergent high-capacity paths. These "local loops" are provided by
top-tier fiber providers.
o Redundant IP Connectivity: Voxeo's distributed production POPs are peered to
the Internet via separate IP backbone providers. Private Line connectivity
between Voxeo's POPs provides an additional layer of IP redundancy.
o Failover and Load Balancing. Inbound 800 services can be configured for
telco-level failover or load distribution across multiple POPs, thereby
providing an additional layer of telco redundancy.
5. INSURANCE
Voxeo maintains an adequate level of general liability and other appropriate
insurance to cover any liabilities described by the warranties in this
Agreement.
6. DESIGNATED SUPPORT CONTACTS
Voxeo Customer Support: (407) 835-0065
(Available: 7 x 24)
support@voxeo.com
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Customer Designated Contact
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Name: Wes Trager
Position: CTO
Phone: 203-428-3000
Email: wtrager@i3mobile.com
Fax: 203-428-3188
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Customer Backup Contact
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Name: Larry Kelley
Position: VP Engineering
Phone: 817-766-5020
Email: lkelley@i3mobile.com
Fax: 817-766-5001
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5. SALES REPRESENTATIVE:
Voxeo Sales Representative Name: Robert McKelvey