EXHIBIT 10.1
------------
"Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission."
VOICE MAIL SERVICES AGREEMENT
between
AT&T CORP.
and
NOTIFY TECHNOLOGY CORPORATION
20020124.10.c
Dated as of
8 February 2002
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ..................................................... 4
ARTICLE 2 PURCHASE ORDERS ................................................. 6
ARTICLE 3 SERVICES ........................................................ 7
3.1 Provision of Services and Pricing ............................... 7
3.2 Change Management Process ....................................... 7
3.3 Bailment ........................................................ 7
3.4 Title And Risk Of Loss .......................................... 8
ARTICLE 4 PAYMENTS ........................................................ 8
4.1 Invoices and Payment ............................................ 8
4.2 E-Commerce ...................................................... 8
4.3 Taxes ........................................................... 10
4.4 Audit ........................................................... 10
ARTICLE 5 CONFIDENTIAL INFORMATION; LICENSES; USE OF MARKS; INTELLECTUAL
PROPERTY RIGHTS ............................................................ 10
5.1 Notify's Information ............................................ 10
5.2 AT&T's Information .............................................. 10
5.3 Reserved ........................................................ 11
5.4 Use of Marks .................................................... 11
ARTICLE 6 REPRESENTATIONS AND WARRANTIES .................................. 12
ARTICLE 7 SERVICES PROVIDED BY OTHERS; UNAUTHORIZED ACCESS ................ 13
7.1 Service Done By Others .......................................... 13
7.2 Unauthorized Access ............................................. 13
7.3 Allocation of Resources ......................................... 13
ARTICLE 8 INDEMNITY; INFRINGEMENT; COMPLIANCE WITH LAWS; LIMITATION
OF LIABILITY ............................................................... 14
8.1 Indemnity ....................................................... 14
8.2 Infringement .................................................... 14
8.3 Compliance with Laws ............................................ 15
ARTICLE 9 INSURANCE ....................................................... 15
ARTICLE 10 SOURCE PROGRAMS AND TECHNICAL DOCUMENTATION ..................... 15
ARTICLE 11 TERM AND TERMINATION ............................................ 16
11.1 Term ............................................................ 16
11.2 Grounds for Termination and Remedies ............................ 16
11.3 Survival of Obligations ......................................... 18
ARTICLE 12 GENERAL ......................................................... 19
12.1 Notices ......................................................... 19
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12.2 Project Manager ................................................. 20
12.3 Disputes ........................................................ 20
12.4 Assignment and Subcontracting by Notify ......................... 22
12.5 Assignment by AT&T .............................................. 22
12.6 Amendment ....................................................... 23
12.7 Waiver .......................................................... 23
12.8 Headings ........................................................ 23
12.9 Severability .................................................... 23
12.10 Entire Agreement ................................................ 23
12.11 Third Party Beneficiaries ....................................... 24
12.12 Identification .................................................. 24
12.13 Services Standards .............................................. 24
12.14 Governing Law ................................................... 25
12.15 Force Majeure ................................................... 25
ATTACHMENT A STATEMENT OF WORK ............................................. 26
ATTACHMENT B AT&T TRADEMARKS ............................................... 27
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VOICE MAIL SERVICES AGREEMENT
This Voice Mail Services Agreement by and between AT&T Corp., a New
York corporation ("AT&T"), having a place of business at 295 North Maple Avenue,
----
Basking Ridge, New Jersey 07920, and Notify Technology Corporation, a California
corporation, having a place of business at 1054 S. De Anza Blvd., Suite 105, San
Jose, California 95129 ("Notify"), is effective as of February 8, 2002 (the
------
"Effective Date").
--------------
W I T N E S S E T H:
-------------------
WHEREAS, AT&T desires that Notify design, develop, manufacture, and sell
Products and Services, including Fulfillment; and,
WHEREAS, AT&T desires to purchase and license various Products and Services that
AT&T expects to use for and/or resell to Subscribers in association with other
products and services of AT&T to offer to its subscribers voice messaging
services, and Notify is willing to sell and license the Products, Services,
including Fulfillment to AT&T subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained and of other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE 1 DEFINITIONS
The following definitions shall apply to the Agreement. In addition to
capitalized terms defined elsewhere herein, the following capitalized words and
phrases listed below will have the meanings given below.
"Agreement" means this Agreement and any and all Attachments appended
---------
hereto, as expressly and mutually amended or modified in writing.
"AT&T Marks" means the AT&T Trademarks, including but not limited those
----------
set forth in Attachment B.
"AT&T Content" means all Information, including but not limited to
------------
Supplier Content, furnished by AT&T to Notify in connection with the Services
provided hereunder.
"AT&T User Data" means all data or other information, no matter how
--------------
collected, concerning Subscribers' use of or interest in AT&T voice mail
services, or derived from or obtained during the Services, including, without
limitation, information (individually, in the aggregate, or otherwise)
identifying Subscribers and their usage pattern.
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"Attachment" means any of the following attachments referenced in and
----------
appended to this Agreement and made a part hereof:
Attachment A Statement of Work
Attachment B AT&T Trademarks
"Availability" of the Notify System (as defined in the Attachment A
------------
(Statement of Work)) means Monday through Sunday, between the hours of 12:00
a.m. ET and 11:59 p.m. ET, seven (7) days a week, 52 weeks per year with no
allowance for holidays, except for reasonable interruptions due to scheduled
maintenance.
[*]
"Caller ID" means electronic display of the telephone number and caller
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name of an incoming caller.
"Charges" means the rates and fees as set forth in Attachment A
-------
(Statement of Work).
"CPE Device" means the Subscriber premise equipment device to be
----------
provided by Notify (as further described in Attachment A (Statement of Work))
that features a message-waiting indicator that signifies the status of a
Subscriber's mailbox and displays Caller ID information.
"Documentation" means the standard Subscriber materials that Notify has
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created and published or may create and publish, during the term of this
Agreement, which are supplied by Notify to Subscribers for Subscribers' use with
the Services and CPE Devices, including any user manuals or technical manuals
for the Services and CPE Devices.
"Fulfillment" shall have the meaning set forth in Attachment A
-----------
(Statement of Work) hereto.
"Information" means (a) intangible information expressed in the form of
-----------
ideas, data, programs, technical, business or other types of intangible
information, or (b) documents, prints, tapes, discs, or other types of tangible
information.
"Notify Marks" means the Notify Trademarks contemplated in Section
------------
5.4(a).
"Party" or "Parties" shall mean, unless otherwise specified, AT&T
----- -------
and/or Notify, as the case may be.
"Products" means CPE Devices and any other products that are offered to
--------
AT&T or Subscribers by Notify per this Agreement.
"Project Manager" has the meaning set forth in Section 12.2.
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"Purchase Order" means AT&T's form of purchase order used for the
--------------
purpose of ordering Products from Notify.
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"Services" means the services being provided by Notify to AT&T under
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this Agreement and pursuant to Attachment A (Statement of Work).
"Service Assumption Date" means the date that all systems installation
-----------------------
and all acceptance testing (including testing for the Services to be provided by
Notify) has been completed in accordance with the Implementation Plan agreed to
between AT&T and [*].
"Shipping Agent" means the shipping company responsible for shipping
--------------
Products from Notify to Subscribers or AT&T.
"Software" means the software supplied by Notify under this Agreement,
--------
which is provided with or contained within the Products.
"Subscriber" means any customer of AT&T, to which AT&T is to provide
----------
services and for which Notify shall be required to provide Services under this
Agreement in support of such customer.
"Supplier Content" means Information of third party suppliers to AT&T
----------------
in connection with Services.
"Territory" means the United States of America.
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"Trademarks" means trademarks, service marks, trade dress, trade names,
----------
brands, corporate names, proprietary logos, designs or indicia and other source
or business identifiers.
"Transition Period" means the period following the termination of this
-----------------
Agreement during which Services and Products are provided pursuant to Section
11.3 (b)."User(s)" means Subscriber(s).
"Voice Messaging System" means the voice messaging system provided by
----------------------
[*], including servers and the voice mail platform used to provide voice mail
services to Subscribers in connection with this Agreement.
ARTICLE 2 PURCHASE ORDERS.
AT&T may place orders with Notify to provide the Products set forth in
Attachment A (Statement of Work) by means of a Purchase Order communicated in a
format mutually agreed upon by the parties. Provided all Purchase Orders meet
the conditions as set forth in Attachment A then, Notify shall accept all such
Purchase Orders from AT&T, and if applicable, AT&T Affiliates. AT&T will send
all Purchase Orders to Notify via facsimile. No Purchase Order shall be
considered binding upon Notify until acknowledged by Notify by delivering a
written acceptance (including by facsimile or electronic mail) to AT&T for the
applicable Purchase Order. In the event that Notify fails to deliver a written
acceptance within three (3) business days it shall be deemed accepted.
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ARTICLE 3 SERVICES
3.1 Provision of Services and Pricing.
---------------------------------
(a) Subject to the terms of this Agreement, Notify shall provide to
AT&T the Services in Attachment A (Statement of Work) for the Charges set forth
in Attachment A.
(b) Except as otherwise set forth in this Agreement, including
Attachment A (Statement of Work), AT&T will not be subject to any volume
requirements, minimum use or any other commitments for purchase of Products or
Services under this Agreement.
(c) Any AT&T Affiliate may purchase Products and Services under this
Agreement. The term "AT&T Affiliate" means: (i) any entity, directly or
indirectly, Controlling, Controlled by or under common Control with AT&T, or
(ii) any entity that is authorized to sell telecommunications products or
services under the "AT&T" brand name. The term "Control" means (i) the power to
vote 50% or more of the voting interests of any entity or (ii) ownership of 50%
or more of the beneficial interests in income or capital of an entity. All
references to AT&T in this agreement refer equally to AT&T or AT&T Affiliate
executing a particular Purchase Order. Any Purchase Order or request for
services by an AT&T Affiliate issued under this Agreement will be a contractual
relationship between the AT&T Affiliate and Notify and Notify shall look only to
the AT&T Affiliate for performance of the AT&T Affiliate's obligations under
such request or Purchase Order.
(d) Except as expressly stated herein, this Agreement is non-exclusive
and does not prohibit either party from entering into similar agreements with
third parties involving identical, similar, or different products, services, and
technologies.
3.2 Change Management Process
-------------------------
AT&T may, at any time during the term of the Agreement, require
additions, deletions or alterations (all hereinafter referred to as a "Change")
to Services or Product. Within thirty (30) calendar days after a request for a
Change, Notify shall submit a proposal to AT&T which includes any changes in
Notify's costs or in the delivery or Service schedule necessitated by the
Change. AT&T shall within thirty (30) calendar days of receipt of the proposal,
either (i) accept the proposal with a written amendment directing Notify to
perform the Change or (ii) advise Notify not to perform the Change in which
event Notify shall proceed with the original Services and Product. No such
Change shall be considered nor shall Notify be entitled to any compensation for
work done pursuant to or in contemplation of a Change nor shall Notify be
obligated to this Change, unless pursuant to a mutually agreed to written
amendment to this Agreement.
3.3 Bailment.
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If at any time Notify is in possession of any Products to which title
has vested in AT&T, Notify shall be considered a bailee for any such Products
while in its possession.
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3.4 Title And Risk Of Loss.
-----------------------
Title to a Product purchased by AT&T for delivery to a Subscriber or to
AT&T shall vest with AT&T when the Product has been invoiced and AT&T has
received proof of delivery. Risk of loss and damage shall pass to AT&T upon
delivery to Shipping Agent by Notify. Upon warranted return of any Product to
Notify by AT&T or Subscriber as a valid warranty return, excluding customer
remorse and excluding an erroneous address where the address used was as
provided from AT&T title and risk of loss and damage to the Product shall vest
in Notify at FOB Notify warehouse, in all other cases of returns (e.g., customer
remorse), title shall remain with AT&T but risk of loss and damage shall vest in
Notify at FOB Notify warehouse.
ARTICLE 4 PAYMENTS
4.1 Invoices and Payment.
--------------------
Invoices for the Charges shall be submitted by Notify to AT&T's Project
Manager. In accordance with Attachment A (Statement of Work), Notify will
invoice AT&T for Services on a monthly basis no later than the tenth business
day following the applicable invoiced month. Payment terms shall be [*]. In the
event that AT&T fails to pay any fee or amount owed to Notify when due
hereunder, then such overdue fee or amount shall bear interest at a rate equal
to the lesser of [*] per month or the maximum amount permitted under applicable
law. All fees, amounts and prices hereunder are in U.S. dollars and all payments
to Notify shall be made in U.S. dollars.
4.2 E-Commerce
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a) e-Commerce Transactions
Notify and AT&T acknowledge that both want to automate certain
operations for purchase and sale transactions ("Transactions"), by
transmitting and receiving, documents electronically (hereinafter
called "Documents") in substitution for conventional paper-based
documents. The following are examples of Documents which may be
transmitted under this Section: Catalogues; Purchase Orders;
Acknowledgements; Modifications to Purchase Orders; Ship Notices;
Invoices; Schedule Changes; Change Orders; Requests for Proposals; and
Proposals.
Notify and AT&T also acknowledges that the electronic
transmission of Documents can take place through the computer network
of an AT&T-designated third party e-Commerce provider ("Provider's
Network").
Notify and AT&T further acknowledge that they both want to
assure that such Transactions are not rendered legally invalid or
unenforceable solely by virtue of such transmission or reception.
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b) Third-Party e-Commerce Provider
Notify understands that it must contract independently with
the third party e-Commerce provider. Notify further understands that it
must accept all data elements transmitted by AT&T through such third
party's platform. AT&T may change the third-party e-Commerce provider
upon thirty (30) days' prior written notice to Notify. Notify further
understands that, in such event, it may have to contract with such
third party. Each party shall, at its own expense, provide and maintain
the equipment, software and services necessary to effectively and
reliably transmit and receive Documents via the designated Provider's
Network. In addition, Notify shall be solely responsible for the cost
of storing its information or Documents on such Provider's Network,
which information or Documents may be retrieved by AT&T at no
additional charge to AT&T by Notify.
c) e-Commerce Signatures
Each party will establish, through the Provider, a unique code
that will act as an authenticating signature ("Signature"). Any
Signature of such party affixed to or contained in any transmitted
Document is sufficient to verify that such Document originated with
such party ("Signed Documents"). Neither party will disclose to any
unauthorized person the Signatures of the other party.
Any Signed Document transmitted through e-Commerce shall
constitute an "original" when printed from electronic files or records
established and maintained in the normal course of business. The
parties further agree not to contest the validity or enforceability of
Signed Documents under the provisions of any applicable law relating to
whether certain agreements are to be in writing and signed by the party
to be bound thereby.
d) e-Commerce Transmissions
If a party receives any Document in an unintelligible or
garbled form, or a Document that otherwise contains evidence of faulty
transmission, the recipient must promptly notify the originating party
(if identifiable from the received Document) in a reasonable manner.
e) Warranties and Data Integrity for e-Commerce Transactions
Notify represents and warrants that Documents and/or
information either transmitted to AT&T by Notify or stored on a
Provider's Network for access by AT&T a) do not contain any virus, bug,
cancel bolt, worm, Trojan Horse or other harmful item, and b) does not
infringe any third party's copyright, patent, trademark, trade secret
or other proprietary rights or rights of publicity or privacy. Notify
further represents and warrants that all product and pricing
information provided in its catalogues either stored on a Provider's
Network or transmitted to AT&T by Notify is current, accurate and
complete. In the event more favorable terms appear in a Document
transmitted to AT&T by Notify than appear in Notify's current
catalogue, AT&T will be entitled to the more favorable terms contained
in such Document.
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4.3 Taxes.
-----
AT&T shall reimburse Notify only for the following tax payments with
respect to transactions under this Agreement unless AT&T advises Notify and
provides proper documentation to Notify that an exemption applies: state and
local sales and use taxes, as applicable. Taxes payable by AT&T shall be billed
as separate items on Notify's invoices and shall not be included in Notify's
prices.
4.4 Audit.
-----
With the exception of prices fixed by this Agreement, Notify shall
maintain complete, clear and accurate records of (1) all hours of direct labor
employees engaged in Services for which payment under this Agreement is to be
computed on the basis of actual hours worked, at a fixed rate per hour or other
unit of time specified in this Agreement and (2) billable costs payable by AT&T
under this Agreement including a physical inventory, if applicable. These
records shall be maintained in accordance with generally accepted accounting
principles so they may be readily audited and shall be held until costs have
been finally determined under this Agreement and payment or final adjustment of
payment, as the case may be, has been made. Notify shall permit AT&T or AT&T's
representative to examine and audit these records and all supporting records at
all reasonable times. Audits shall be made not later than one (1) calendar year
after the expiration or termination of this Agreement; provided, however, in no
event shall any audit period exceed the two (2) calendar years preceding
expiration or termination of the Agreement.
ARTICLE 5 CONFIDENTIAL INFORMATION; LICENSES; USE OF MARKS; INTELLECTUAL
PROPERTY RIGHTS
5.1 Notify's Information.
--------------------
Notify acknowledges that AT&T does not wish to receive Notify's
Confidential information. Accordingly, Notify shall use its best efforts not to
disclose its confidential information to AT&T. In the event that Notify needs to
disclose its confidential information to AT&T, and AT&T agrees to receive such
confidential information, the parties agree to negotiate in good faith a
non-disclosure information prior to such disclosure.
5.2 AT&T's Information
------------------
As a result of Notify's anticipated or actual performance under this
Agreement, Notify may receive or become exposed to AT&T's Content, AT&T User
Data or any other AT&T confidential information. Notify agrees to (1) keep all
such Information confidential and use such Information only for performing under
this Agreement; (2) inform Notify's employees, contractors and agents of their
obligations to keep such Information confidential and require those employees,
contractors and agents to honor such obligations; and (3) promptly surrender or
destroy such Information, and any copies thereof, free-of-charge, when requested
to do so by AT&T. The foregoing obligation of
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confidentiality shall not apply to the extent such Information: (i) is or
becomes publicly known or available through no fault of Notify; (ii) is known by
Notify prior to the time of disclosure and is not subject to restriction or
obligation of confidentiality; (iii) is independently developed by Notify
without reference to such Information; (iv) is lawfully obtained by Notify from
a third party, who has the right to make such disclosure without restriction or
breach of obligation of confidentiality; or (v) is required to be disclosed by
law, provided however that Notify shall promptly notify AT&T in writing of such
requirement and assist AT&T in seeking a protective order limiting such
disclosure requirement.
5.3 Reserved.
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5.4 Use of Marks.
-------------
(a) Notify hereby grants to AT&T during the Term a worldwide
nonexclusive, right to use the Notify Marks on promotional and other materials
in accordance with this Agreement and as mutually agreed by the parties. All
such use of the Notify Marks shall inure to the benefit of Notify. Nothing in
this Agreement shall create any rights, title or interest for AT&T in the Notify
Marks (except to the extent provided in the first sentence of this Section).
AT&T shall use the Notify Marks in accordance with such reasonable guidelines as
Notify may provide to AT&T from time to time. AT&T agrees to cooperate with
Notify in facilitating Notify's monitoring and control of the use of the Notify
Marks, and to supply Notify with samples of use of such icons upon request.
(b) Notify shall provide Subscribers with CPE Devices in accordance
with the terms of this Agreement. The Notify-manufactured CPE Device shall be
branded with the AT&T brand and AT&T globe design as set forth in the
specifications attached to this Agreement in Attachment B. If AT&T, in its sole
discretion, modifies the depiction of the brand or alters the brand
specifications, AT&T shall provide notice of the modification to Notify as set
forth in Section 12.1 of this Agreement, and Notify shall have ninety (90) days
from receipt of such notice to implement AT&T's modifications on all subsequent
CPE Devices manufactured for AT&T Subscribers. Except as specifically provided
by this Section 5.4(b), AT&T does not grant Notify any right, permission or
license to use the AT&T brand or AT&T globe design or any other AT&T Mark in any
manner whatsoever in connection with any goods or services, and Notify shall not
so use the AT&T brand or AT&T globe design or any other AT&T Mark or any
confusingly similar marks. Notwithstanding the foregoing, Notify shall remain
entitled to place Notify (or its supplier's/licensor's) proprietary and/or
intellectual property identifications, numbers, markings or notices on or in the
CPE Devices and related Documentation, including and relating solely to patent
rights. Notify shall not be required to and AT&T shall not alter, delete,
remove, cover or otherwise obscure any proprietary or intellectual property
identification, number, marking or notice on or in the CPE Devices, and
Documentation, relating solely to patent rights.
(c) Except as this Section 5.4 provides, neither Party may use any
Trademark of the other Party without the other's prior written consent and
nothing in this Agreement shall create in one Party any rights in the Trademarks
of the other Party.
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5.5 Intellectual Property Rights.
----------------------------
AT&T acknowledges and agrees that Notify represents that Notify (or
its suppliers/licensors, as the case may be) owns all rights, title, and
interests in and to all patents, copyrights, trademarks, trade secrets and all
other proprietary and intellectual property rights of Notify (or its
suppliers/licensors, as the case may be) in relation to the Products, Services,
Documentation and all other products or services provided by Notify hereunder.
Except with respect to the escrow of source code for the Software as expressly
provided for herein, AT&T and Subscribers shall have no access or license to, or
rights in, the source code for any Software. AT&T shall not remove, obscure or
modify any label, notice or other indication of patent, copyright or other
intellectual property rights on or in the Products, Services or Documentation,
including without limitation any appearing in electronic format.
ARTICLE 6 REPRESENTATIONS AND WARRANTIES
(a) Notify represents and warrants to AT&T that the Services will be
performed in a workmanlike manner, in accordance with industry professional
standards in the field Services will be performed in accordance with the
Attachment A, (Statement of Work).
(b) Notify warrants to AT&T and Subscribers that Products will be new,
unless returned by a Subscriber and refurbished to merchantable, free from
defects in design, material and workmanship and will conform to and perform in
accordance with Attachment A (Statement of Work) or any applicable Documentation
specifications, and if applicable, drawings and samples. These warranties extend
to the future performance of the Products and shall continue for a period of one
(1) year from shipping date of the Product by Notify to AT&T or the applicable
Subscriber. Notify also warrants that if Products are capable of processing,
providing, receiving and/or displaying date data, they will do so correctly, as
well as exchange accurate date data with all products with which they are
intended to be used. The above warranties shall survive inspection, acceptance
and payment in accordance with the terms hereof. Repaired and replacement
Products shall be warranted as set forth above in this clause. Notify will ship
replacement Product(s) in accordance with the terms and conditions set forth in
Attachment A (Statement of Work).
(c) The express warranties set forth within this Article are contingent
upon the proper use of the Product as designed and intended by Notify and shall
not apply to any Product that has been: (i) damaged after shipping; (ii)
modified, altered or improperly maintained or repaired by any person or entity
other than Notify; or (iii) subjected to unusual physical or electrical stress.
[*] This limitation of liability does not apply to breach of Notify's
obligations under any other provision in this Agreement nor personal injury or
property damages.
(d) THE EXPRESS REPRESENTATIONS AND WARRANTIES OF NOTIFY CONTAINED
WITHIN THIS ARTICLE OR ELSEWHERE WITHIN THIS AGREEMENT OR IN ANY ATTACHMENTS
HERETO CONSTITUTE THE ONLY
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REPRESENTATIONS AND/OR WARRANTIES OF NOTIFY, INCLUDING WITHOUT LIMITATION THOSE
RESPECTING THE PRODUCTS, SERVICES AND/OR DOCUMENTATION, AND ARE IN LIEU OF AND
NOTIFY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND/OR WARRANTIES
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OR TITLE, AND THOSE ARISING FROM A COURSE OF DEALING, USAGE,
TRADE OR PERFORMANCE. THIS DISCLAIMER SHALL ALSO APPLY TO NOTIFY'S SUPPLIERS AND
LICENSORS.
ARTICLE 7 SERVICES PROVIDED BY OTHERS; UNAUTHORIZED ACCESS
7.1 Service Done By Others.
----------------------
If any of the Services are dependent on work provided by others, except
work done or provided by [*], Notify shall use reasonable efforts to inspect and
promptly report any defect, to AT&T that renders such other work unsuitable for
Notify's proper performance.
7.2 Unauthorized Access.
-------------------
(a) In the event Notify discovers or is notified of a material breach
or potential material breach of security involving the Services or any system or
network which does or may contain, process or transmit AT&T Content or AT&T User
Data, Notify shall immediately notify AT&T and shall cooperate fully with AT&T
and its designees (including, without limitation, by providing or causing AT&T
and its designees to be provided with reasonable access to all relevant
resources and information used in providing the Services under this Agreement
that are in the possession of Notify ) in any investigation or action relating
to such breach or potential breach.
(b) In the event Notify discovers or is notified that personnel of
Notify are, were, may be or have been involved in unauthorized or illegal
activities to obtain money or information from or through AT&T, its Affiliates
or Subscribers, or in any way damage (or expose to damage) AT&T, its Affiliates
or Subscribers, Notify shall immediately: (i) notify AT&T; (ii) if requested by
AT&T, investigate such activities; and (iii) cooperate fully with AT&T and its
designees (including, without limitation, by providing or causing AT&T and its
designees to be provided with reasonable access to all resources and information
used in providing the services that are in the possession of Notify) in any
investigation or action relating to such activities.
7.3 Allocation of Resources.
-----------------------
Without limiting Notify's other obligations under this Agreement,
whenever there is no Availability, including but not limited to a Force Majeure
Event (as defined herein) or any other event causes Notify to allocate scarce
services or products to other limited resources between or among its customers,
AT&T shall receive the highest level of preferential treatment under this
Agreement.
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ARTICLE 8 INDEMNITY; INFRINGEMENT; COMPLIANCE WITH LAWS; LIMITATION OF
LIABILITY
8.1 Indemnity.
------------
All persons furnished by Notify shall be considered solely Notify's
employees or agents, and Notify shall be responsible for payment of all
unemployment, social security and other payroll taxes, including contributions
when required by law. Notify agrees to indemnify AT&T, its Affiliates, its and
their customers and each of their officers, directors, employees, successors and
assigns (all hereinafter referred to in this clause as "AT&T") from and against
any proved or alleged claims, demands or suits, or any losses, damages,
liabilities, fines, penalties and expenses (including reasonable attorney's
fees) that in any way arise out of, relate to or result from this Agreement, or
the items, tangible or intangible, furnished or services performed under or in
contemplation of this Agreement including, but not limited to: (1) injuries or
death to persons or damage to property, including theft; (2) failure by Notify
to perform any of its obligations under this Agreement; (3) negligent or
intentional acts or omissions of Notify; and (4) infringement of any U.S.
patent, copyright, trademark, trade secret or other intellectual property right
of any third party by the Products and/or Services. Notify agrees to defend
AT&T, at AT&T's request, against any such claim, demand or suit. AT&T agrees to
notify Notify within a reasonable time of any written claims or demands against
AT&T for which Notify is responsible under this clause.
8.2 Infringement.
------------
During the Term of this Agreement and the Transition Period, in the
event that the Services or Products created or provided under this Agreement by
Notify, are alleged or determined to infringe upon the proprietary rights of a
third party as provided for above within Section 8.1, Notify shall, in addition
to its obligations, if any, under Section 8.1 (Indemnity), at its option and own
expense (i) obtain the right for AT&T, its Affiliates and the Subscribers to use
the infringing Services and/or Products, (ii) modify the Services or Products so
that they are no longer infringing but still satisfy the requirements contained
in this Agreement and in the Specifications, (iii) obtain and substitute
functionally similar Services or Products that are not infringing. If none of
the foregoing alternatives is commercially reasonable, then the infringing
Product and/or Services shall be returned to Notify by AT&T and Notify shall
refund the purchase price paid to Notify by AT&T for such Product. Acceptance of
a refund by AT&T shall not relieve Notify of its indemnity obligations
hereunder.
(b) Limitations. Notify shall have no liability or obligations for any
-----------
claim of infringement arising as a result of any: (i) distribution or use of a
Product and/or Service in combination with any products, items or services not
supplied by Notify unless such combination is required for normal use of the
Product and/or Service or unless such claim of infringement would not have
arisen but for such distribution or use in combination; (ii) modification or
alteration of a Product and/or Services, other than by Notify if such claim of
infringement would not have arisen but for such modification or alteration; or
(iii) use of a Product and/or Services that is expressly prohibited by the terms
of this Agreement and the applicable Documentation.
(c) [*]
---
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8.3 Compliance with Laws.
--------------------
Notify and all persons furnished by Notify shall comply at their own
expense with all applicable federal, state, local and foreign laws, ordinances,
regulations and codes, including the identification and procurement of required
permits, certificates, licenses, insurance, approvals and inspections in
performance of this Agreement.
ARTICLE 9 INSURANCE
Notify shall maintain during the term of this Agreement: (1) Workers'
Compensation insurance as prescribed by the law of the state or nation in which
the Services are performed by Notify; (2) employer's liability insurance with
limits of at least [*] for each occurrence; (3) automobile liability insurance
if the use of motor vehicles is required, with limits of at least [*] combined
single limit for bodily injury and property damage per occurrence; (4)
Commercial General Liability ("CGL") insurance, ISO 1988 or later occurrence
form of insurance, including Blanket Contractual Liability and Broad Form
Property Damage, with limits of at least [*] combined single limit for bodily
injury and property damage per occurrence; (5) CGL insurance endorsed to include
products liability and completed operations coverage in the amount of [*] per
occurrence, which shall be maintained for at least one (1) year following the
expiration or termination of this Agreement; and (6) Errors & Omissions
Insurance in an amount not less than US [*] for each occurrence. All CGL and
automobile liability insurance shall designate AT&T Corp., its Affiliates, and
each of their directors, officers and employees (all referred to in this clause
as "AT&T") as additional insureds. All the foregoing insurance must be primary
and non-contributory and required to respond and pay prior to any other
insurance or self-insurance available. Any other coverage available to AT&T
shall apply on an excess basis. Notify agrees that Notify, Notify's insurer(s)
and anyone claiming by, through, under or in Notify's behalf shall have no
claim, right of action or right of subrogation against AT&T or Subscribers based
on any loss or liability insured against under the foregoing insurance. Notify
shall furnish to AT&T upon request certificates or adequate proof of the
foregoing insurance including, if specifically requested by AT&T, copies of the
endorsements and policies. AT&T shall be notified in writing at least thirty
(30) days prior to cancellation of or any material reduction in coverage or any
other material change in the policy. For any other material change in policy,
Notify will make best effort to provide timely notification to AT&T. Insurance
companies providing coverage under this Agreement must be rated by A.M. Best
with at least an A- rating and a financial size category of at least Class VII.
ARTICLE 10 SOURCE PROGRAMS AND TECHNICAL DOCUMENTATION
Within sixty (60) days of the Effective Date of this Agreement, Notify
and AT&T shall enter into a source code escrow agreement with DSI, Fort Knox, or
other mutually
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agreeable third party escrow agent ("Escrow Agreement"), pursuant to which
Notify shall make AT&T a beneficiary of the source code embodying the Software
("Source Code") and Notify shall deposit such Source Code with such escrow agent
within such sixty (60) day period. The Escrow Agreement shall govern the
maintenance and release of the Source Code and shall include provisions that the
Source Code shall be released by the escrow agent to AT&T in the event that
Notify, among other things, becomes insolvent, ceases to carry on business on a
regular basis or fails to perform its obligations under this Agreement or is
subject to a formal bankruptcy, insolvency or liquidation proceeding (whether
voluntary or involuntary) which is not dismissed within sixty (60) days of
filing of such proceeding. With respect to such Source Code, Notify hereby
grants to AT&T a non-exclusive, non-transferable, non-sub-licensable and
restricted license only in the Territory to use the Source Code strictly for the
purposes of performing error correction or fixes to the Software so that the
Software functions as described within the applicable Documentation, provided
however that such license shall only be effective and AT&T may only exercise
such license right in the event of a release of the Source Code pursuant to the
Escrow Agreement. AT&T shall pay for all costs and expenses associated with the
establishment, deposit and maintenance of such escrow account. AT&T acknowledges
and agrees that it has no ownership or proprietary interest or right in or to
such Source Code, and that in the event of a release of the Source Code to AT&T,
AT&T shall acquire only the restricted license rights granted under this
Article. AT&T acknowledges and agrees that such Source Code is Notify
confidential information, shall be held by AT&T under strict obligations of
non-disclosure and confidentiality, and that AT&T shall not distribute, sell,
sublicense or disclose such Source Code to any third party. Where this Agreement
expires or is terminated for any reason, then AT&T's right hereunder to receive
or possess the Source Code shall immediately terminate, as shall the Escrow
Agreement and all obligations of Notify hereunder respecting such Source Code.
If the parties have not entered into or are unable to enter into an Escrow
Agreement then the terms of the preceding clause will apply as between Notify
and AT&T until such time as an Escrow Agreement shall be entered into.
ARTICLE 11 TERM AND TERMINATION
11.1 Term.
----
(a) This Agreement shall commence as of the Effective Date and shall
continue in full force and effect until one (1) year from the Service Assumption
Date, or any date on which this Agreement is terminated in accordance with this
Article 11 (the earlier of such dates, the "Termination Date"), except to the
----------------
extent contemplated in Section 11.3 (Survival; Orderly Transition).
(b) This Agreement shall renew automatically for additional one-year
periods unless written notice is given by AT&T of its intention not to renew
this Agreement at least thirty (30) days prior to the end of the initial or any
subsequent terms.
11.2 Grounds for Termination and Remedies.
------------------------------------
(a) Either Party may terminate this Agreement, in whole or in part,
upon thirty (30) days' written notice for any material breach or default (or any
series of breaches or
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defaults which in the aggregate constitute a material breach or default) of any
terms and conditions of this Agreement by the other Party with no liability to
the terminating Party, unless within such 30-day notice period, the
non-terminating party (i) has cured such breach or default or (ii) has commenced
to cure such default or breach and diligently pursues such cure until
accomplished and such cure is accomplished within sixty (60) days of such notice
of termination.
(b) AT&T may at any time terminate this Agreement in whole or in part,
by 120 days' prior written notice to Notify. In such case, AT&T's liability
shall be limited to payment of the amount due for Services performed up to and
including the date of termination (which amount shall be substantiated with
proof satisfactory to AT&T and shall not exceed the price of Services being
terminated), and no further Services will be rendered by Notify, except under
the clause ORDERLY TRANSITION. Such payment shall constitute a full and complete
discharge of AT&T's obligations. Except for termination for material breach or
default by Notify, AT&T will honor all Purchase Orders for CPEs accepted by
Notify.
(c) This Agreement may be terminated with written notice by either
party upon the occurrence of an Insolvency Event. An "Insolvency Event" has
----------------
occurred with respect to a party if:
(i) a receiver, liquidator or trustee of such party is appointed
by court order and such order remains in effect for more than
thirty (30) days, or a receivership, insolvency or bankruptcy
proceeding is commenced or a petition is filed against such
party under any applicable liquidation, conservatorship,
bankruptcy, moratorium, insolvency, reorganization or similar
law for the relief of debtors (collectively, "Bankruptcy
Laws") from time to time in effect and generally affecting the
rights of creditors, and such proceeding or such petition has
not been dismissed or stayed within thirty (30) days of the
commencement or filing thereof;
(ii) such party commences a voluntary case under any Bankruptcy Law
or voluntarily seeks, consents to or acquiesces in the benefit
or benefits of any provision of any Bankruptcy Law, consents
to the filing of any petition against it under any Bankruptcy
Law, makes an assignment for the benefit of its creditors,
admits in writing its inability to pay its debts generally as
they become due or consents to the appointment of a receiver,
trustee, liquidator or conservator for it or any part of its
property; or
(iii) such party takes any action or causes any action to be taken
or any event otherwise occurs which reasonably, based upon
ordinary commercial standards and practices, raises doubts in
the other party as to such party's ability or willingness to
perform future obligations under this Agreement, and such
party fails to provide within 30 days after notice by the
other party such assurances of performance as are reasonably
requested in writing by the other party.
Notwithstanding anything to the contrary in this subsection (c) which
could allow for termination of this Agreement, this Agreement shall not so
terminate if, and for so
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long as the party suffering an Insolvency Event is not in material breach of its
obligations under this Agreement.
(d) This Agreement may be terminated with written notice by either
party if proceedings are commenced for the dissolution, winding-up or
liquidation of either party.
(e) If this Agreement terminates for any reason, each party will, at
the other party's option and within ten (10) days of such request, either return
or destroy the original and all copies of the other party's confidential
Information, and certify to the other that they have been destroyed.
11.3 Survival of Obligations.
-----------------------
(a) Survival of Obligations.
It is agreed that certain obligations of the parties under
this Agreement, which, by their nature would continue beyond the
termination, cancellation, or expiration of this Agreement, shall
survive termination, cancellation or expiration of this Agreement. Such
obligations include, by way of illustration only and not limitation,
those contained in the provisions of this Agreement regarding
COMPLIANCE WITH LAWS, PAYMENT, IDENTIFICATION, INDEMNITY, INSURANCE,
AT&T'S INFORMATION, NOTIFY'S INFORMATION, REPRESENTATIONS AND WARRANTY,
and NOTIFY INTELLECTUAL PROPERTY RIGHTS.
(b) Orderly Transition.
In the event of expiration or termination of this Agreement,
in whole or in part, wherein all or some portion of the work will be
performed by AT&T itself or elsewhere, Notify agrees to provide its
full cooperation in the orderly transition of the work to AT&T or
elsewhere, including, but not necessarily limited to packing and
preparing for shipment any materials or other inventory to be
transferred, provision of reports, files and similar media necessary
for continuation of the work transferred, continuation of work at
reducing levels if necessary during a transition period and at reduced
levels if work is transferred in part. Prices for additional work such
as packing and preparation for shipment of all outstanding Product in
Notify warehouse to AT&T, applicable fulfillment costs, and revision of
prices resulting from revised volumes, if necessary, shall be proposed
by Notify, shall be commercially reasonable and shall be mutually
agreed upon by the Parties.
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ARTICLE 12 GENERAL
12.1 Notices.
-------
Any notice, demand or other communication (other than a Purchase Order)
required, or which may be given, under this Agreement shall, unless specifically
otherwise provided in this Agreement, be in writing and shall be given or made
by overnight courier service which provides the sender with written record of
delivery, and shall be addressed to the respective parties as follows:
In the case of Notify:
Notify Technology Corporation
1054 S. De Anza Blvd.
San Jose, CA 95129
Attention: [*]
Phone No.: [*]
Fax No.: [*]
Email: [*]
with a copy to:
Notify Technology Corporation
1054 S. De Anza Blvd.
San Jose, CA 95129
Attention: [*]
Phone No.: [*]
Fax No.: [*]
Email: [*]
In the case of AT&T:
AT&T Consumer Services
5501 LBJ FWY
Suite 845 South
Dallas, TX 75240-6202
Attention: [*]
Phone No.: [*]
Fax No.: [*]
Email: [*]
with a copy to:
AT&T Corp., Supplier Management Division
900 Route 202/206 North, Room #3D156C
Bedminster, New Jersey 07921
Attention: [*]
Phone No.: [*]
Fax No.: [*]
Email: [*]
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Either party may from time to time change its contact person, address
or telecopy number for notification purposes upon at least fifteen (15) business
days' notice to the other party of the new contact person, address or telecopy
number.
12.2 Project Manager.
---------------
Notify and AT&T shall each appoint an individual within their
respective organization and an alternate who shall be responsible for: (a)
monitoring that party's day-to-day activities under, and compliance with, this
Agreement; (b) coordinating routine communications between the Parties; (c)
reasonably facilitating the resolution of issues that arise between the parties;
and (d) approving deviations from the day-to-day operational requirements of
this Agreement. The initial Project Manager of each Party is:
Notify:
Notify Technology Corporation
1054 S. De Anza Blvd.
San Jose, CA 95129
Attention: [*]
Phone No.: [*]
Fax No.: [*]
Email: [*]
AT&T:
AT&T Consumer Services
5501 LBJ FWY
Dallas, TX 75240-6202
Attention: [*]
Phone No.: [*]
Fax No.: [*]
Email: [*]
A Project Manager may be substituted by such Party with another
individual within such Party's organization, and notice of such substitution
shall be made in compliance with the Section of this Agreement respecting
Notices.
12.3 Disputes.
--------
(a) Arbitration.
If a dispute, controversy or claim relating to this Agreement
(a "Dispute") has arisen between the Parties and is not resolved within
twenty-five (25) business days after the Project Managers have first
met for negotiation to resolve such Dispute, either Party may, upon
notice to the other party, submit such Dispute or enforce to binding
arbitration in accordance with the rules and procedures of CPR
Institute for Dispute Resolution ("CPR"). Except as provided below, any
and all Disputes of any nature arising out of or relating to this
Agreement or the breach, termination or validity thereof, whether based
on
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contract, tort, statute, fraud, misrepresentation or any other legal or
equitable theory shall be resolved solely and exclusively by
arbitration by CPR in accordance with the provisions of this Section
and the CPR Rules for Non-Administered Arbitration to the extent such
rules do not conflict with this Section and Agreement. The arbitration,
including arguments and briefs, shall be in the English language in New
York, New York, United States of America. The Respondent's notice of
defense shall be served upon the Claimant within ten (10) days after it
receives the notice of arbitration (the date of receipt of notice of
arbitration being "Commencement"). The arbitration shall be conducted
by one (1) arbitrator selected by the Parties or, if the Parties cannot
mutually agree upon the arbitrator within fifteen (15) days after
Commencement, the Parties shall notify CPR and an arbitrator
knowledgeable in the legal and technical aspects of the Dispute shall
be appointed by CPR within twenty-five (25) days of Commencement. The
arbitrator shall strictly limit discovery to the production of
documents directly relevant to the facts alleged in the notices of
arbitration and defense and, if depositions are required, each Party
shall be limited to three (3) depositions of no longer than three (3)
hours each. If the arbitrator decides to hold an evidentiary hearing,
each Party's presentation of its case, including its direct and
rebuttal testimony, shall be limited to three (3) days. The arbitrator
shall issue an order preventing the Parties, CPR and any other
participants to the arbitration from disclosing to any third party any
information obtained via the arbitration, including discovery
documents, evidence, testimony and the award except as may be required
by law. The arbitration award shall be in United States dollars and
shall: (a) be in writing; (b) state only the damages, if any; (c) not
exceed the damages and relief requested by the prevailing Party; (d) be
made final within six (6) months of Commencement; and (e) be entered by
either Party in any court having competent jurisdiction, provided that,
-------------
the Party entering the award shall request that the court prevent the
award from becoming publicly available except as may be required by
law. The arbitrator shall not limit, expand or otherwise modify the
terms of this Agreement and shall not award punitive or other damages
in excess of compensatory damages. The arbitrator shall orally state
the reasoning on which the award rests but shall not state such
reasoning in any writing. Each Party shall bear its own expenses, but
those related to the compensation of the arbitrator shall be borne
equally. The Parties agree that the existence and contents of the
entire arbitration, including the award, shall be deemed a compromise
of a dispute under Rule 408 of the Federal Rules of Evidence of the
United States, shall not be discoverable in any proceeding, shall not
be admissible in any court (except to enforce the same as provided
herein) or arbitration and shall not bind or collaterally estop any
Party with respect to any claim or defense made by any third party. In
no event shall this Section 12.3 or any other provisions of this
Agreement be deemed to require any Party to negotiate or arbitrate any
Dispute (including defenses thereto) concerning the validity,
enforceability, scope or infringement of any patent or other
intellectual property right, or any breach of the confidentiality
provisions provided for herein or any issue unrelated to this
Agreement.
(b) Statute of Limitations.
Except as otherwise determined by the arbitrator under Section
12.2(c), any statute of limitations will be tolled upon initiation of
the dispute resolution
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procedures under this Section 12.2 and will remain tolled until the
Dispute is resolved in accordance herewith; provided, however, that
tolling will cease if the Party against which the statute of
limitations would be applied fails to observe the procedures set forth
in this Section 12.2.
(c) Continuity of Services.
During the Term and any extension thereof, Notify assumes an
independent obligation to continue to provide Services and AT&T assumes
an independent obligation to continue to pay for such Charges for the
Services set forth in Attachment A during any Dispute between the
parties, including any dispute resolution proceedings.
12.4 Assignment and Subcontracting by Notify.
---------------------------------------
(a) Notify shall not assign any right or interest under this Agreement
(excepting monies due or to become due) or delegate or subcontract any
Work or other obligation to be performed or owed under this Agreement
without the prior written consent of AT&T. Any assignment, delegation
or subcontracting without such consent shall be void. Any assignment of
monies shall be void if (1) Notify shall not have given AT&T at least
thirty (30) days prior written notice of such assignment or (2) such
assignment imposes upon AT&T obligations to the assignee in addition to
the payment of such monies, or precludes AT&T from dealing solely and
directly with Notify in all matters pertaining to this Agreement
including amendments or settlements of charges. AT&T acknowledges and
agrees that Notify may utilize third party subcontractors, without
consent of AT&T, to perform some or all of Notify's obligations
hereunder; provided, however, any and all subcontractors have agreed in
writing to perform in accordance with and subject to the terms and
conditions on this Agreement. This consent to subcontract shall not
relieve Notify of its responsibilities for performance under this
Agreement and Notify shall remain liable for compliance by any and all
subcontractors with all provisions of this Agreement. All Work
performed by Notify's subcontractor(s) at any tier shall be deemed Work
performed by Notify.
12.5 Assignment by AT&T.
------------------
AT&T shall have the right to assign this Agreement and to assign its
rights and delegate its duties under this Agreement either in whole or in part
(an "Assignment"), including, but not limited to, software licenses and other
grants of intellectual property rights, at any time and without Notify's
consent, to (i) any present or future affiliate of AT&T (including any
subsidiary or affiliated entity thereof); (ii) any unaffiliated new entities
that may be formed by AT&T pursuant to a corporate reorganization, including any
subsidiary or affiliated entity thereof; or (iii) any third party which by
purchase, lease, outsourcing agreement or otherwise, assumes the operation,
administration and/or management of any substantial portion of the business of
AT&T affected by this Agreement. AT&T shall give Notify written notice of any
Assignment, including (i) the effective date of the Assignment ("Effective
Date"), and (ii) the entity or entities receiving rights and/or assuming
obligations under this Agreement ("Entities"). Upon the Effective
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Date and to the extent of the Assignment, AT&T shall be released and discharged
from all further duties under this Agreement, as to materials, services, or
intellectual property rights transferred to assignee, whether ordered from or
provided by Notify prior to, on or after the Effective Date. Notwithstanding
that an Assignment has been made, AT&T, at its sole option, shall continue to
have the right to purchase, lease, or license material, software or services
under this Agreement as if an Assignment had not been made. In addition, Notify
agrees that this Agreement may be replicated for any entity referred to above,
thus creating one or more additional agreements, each between Notify and the
entity or entities requesting such replication and each identified by its own
agreement number, but containing the terms and conditions of this Agreement,
including prices. AT&T shall give Notify written notice of any intention to
replicate, and copies of the replicated agreement(s) for execution by Notify. If
this Agreement includes a commitment to purchase a stated or determinable
quantity of goods, services or rights, or prices that vary based on the
quantities of purchased Services or Products, the aggregate of purchases of
Services or Products by the Entities under this Agreement and the replicated
agreements will be included in determining the quantity
12.6 Amendment.
---------
No modification, amendment, supplement to or waiver of any provision of
this Agreement (including any Attachments or exhibits thereto) will be binding
on the parties unless in writing and duly signed by the party against which
enforcement is sought.
12.7 Waiver.
------
A failure or delay of any party's exercise or partial exercise of any
right or remedy it has under this Agreement will not operate to impair, limit,
preclude, cancel, waive or otherwise affect such right or remedy. No waiver by
any party of any breach or covenant hereunder shall be construed to be a waiver
of any succeeding breach or any other covenant.
12.8 Headings.
--------
The article and section headings and the table of contents are for
reference and convenience only and will not be considered in the interpretation
of this Agreement.
12.9 Severability.
------------
If any provision of this Agreement is held to be invalid or
unenforceable at law, then the Agreement shall be deemed amended by revising
such provision to make it valid and enforceable while preserving the parties'
original objective thereunder or, if such revision is not possible, by removing
or limiting such provision to the extent invalid or unenforceable, and the
remaining provisions of the Agreement shall not be affected thereby and shall be
valid and enforceable to the extent permitted by law.
12.10 Entire Agreement.
----------------
This Agreement and the Attachments hereto constitute the entire
agreement between the parties with respect to the subject matter of this
Agreement and the order(s)
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and shall not be changed, modified or rescinded, except by a writing signed by
Notify and AT&T. Printed provisions on the reverse side (or otherwise) of AT&T's
purchase orders and/or other forms and all printed provisions on Notify's
invoices shall be deemed deleted. Except as otherwise provided for herein,
estimates or forecasts furnished by AT&T shall not constitute commitments. The
provisions of this Agreement supersede all contemporaneous oral agreements and
all prior oral and written quotations, communications, agreements and
understandings of the parties with respect to the subject matter of this
Agreement. In the event of any conflict or inconsistency between the terms of
this Agreement and the Attachments hereto, the terms of this Agreement shall
govern.
12.11 Third Party Beneficiaries.
-------------------------
Each party intends that this Agreement shall not benefit, or create any
right or cause of action in or on behalf of, any person or entity other than
Notify) or AT&T, except for the Affiliates of AT&T contemplated herein.
12.12 Identification.
--------------
Notify shall not without AT&T's prior written consent except as
otherwise set forth in this Agreement: (a) disclose to any third party the
contents and/or the facts of this Agreement; or (b) engage in any advertising,
promotion or publicity related to this Agreement; or (c) except as otherwise set
forth in this Agreement make public use of AT&T's, Trademarks. Notwithstanding
the foregoing, Notify shall be permitted, to disclose the contents and/or the
facts of this Agreement: (i) as required by law; (iii) to legal counsel; (iv) in
confidence pursuant to a non-disclosure agreement with terms similar to the
terms of treatment of AT&T confidential information under this agreement and
provided AT&T is named as a third-party beneficiary to such agreement, to
accountants, banks, and financing sources and their advisors; (v) in connection
with the enforcement of this Agreement or rights under this Agreement; or (vi)
in confidence pursuant to a non-disclosure agreement with terms similar to the
terms of treatment of AT&T confidential information under this agreement and
provided AT&T is named as a third-party beneficiary to such agreement , in
connection with an actual or proposed merger, acquisition, or similar
transaction; provided, however, prior to any disclosure Notify seeks
confidential treatment or a protective order to the fullest extent permitted
limiting any such disclosure.
12.13 Services Standards.
------------------
In performing the Services, Notify shall not take an action or make a
decision which has a material effect on Subscribers, which materially and
adversely affects the function or performance of, or decreases the efficiency of
the Services, which requires a Subscriber to materially change the way it
conducts business or operations, or which increases charges or costs to a
Subscriber or AT&T without first obtaining AT&T `s written approval, such
approval AT&T may withhold in its sole discretion with respect to any change
which may have an adverse effect on a Subscriber or the Services. Notify may
make temporary changes required by an emergency if it has been unable to contact
an appropriate AT&T Project Manager or his other delegate to obtain such
approval after making reasonable efforts. Notify shall document and promptly
report such emergency changes to AT&T. Changes, which are made by Notify in
compliance with Section 3.3 (Change Management Process), shall not require
further notice to or approval by AT&T.
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12.14 Governing Law.
-------------
This Agreement and the rights and obligations of the parties hereunder
will be construed in accordance with and be governed by the substantive laws of
the State of New York (excluding those pertaining to choice of law and
arbitration of disputes). Except as expressly provided in this Agreement,
neither party may bring any legal action, suit or proceeding arising out of or
relating to this Agreement in any court.
12.15 Force Majeure.
-------------
Neither party shall be held responsible for any delay or failure
performance of any part of this Agreement to the extent such delay or failure is
caused by fire, flood, explosion, war, strike, embargo, government requirement,
civil or military authority, act of God, telecommunications or power failures,
or other similar causes beyond its control and without the fault or negligence
of the delayed or non-performing party or its subcontractors ("Force Majeure
Conditions"). Notwithstanding the foregoing, Notify's liability for loss or
damage to AT&T's material in Notify's possession or control shall not be
modified by this clause. If any Force Majeure Condition occurs, the party
delayed or unable to perform shall give immediate notice to the other party,
stating the nature of the Force Majeure Condition and any action being taken to
avoid or minimize its effect. The party affected by the other's delay or
inability to perform may elect to: (1) suspend this Agreement or an order for
the duration of the force majeure condition and (i) at its option buy, sell,
obtain or furnish elsewhere material or services to be bought, sold, obtained or
furnished under this Agreement or an order (unless such sale or furnishing is
prohibited under this Agreement) and deduct from any commitment the quantity
bought, sold, obtained or furnished or for which commitments have been made
elsewhere and (ii) once the Force Majeure Condition ceases, resume performance
under this Agreement or an order with an option in the affected party to extend
the period of this Agreement or order up to the length of time the Force Majeure
Condition endured; or (2) when the delay or nonperformance continues for a
period of at least fifteen (15) days, terminate, at no charge, this Agreement or
an order or the part of it relating to material not already shipped, or services
not already performed. Unless written notice is given within forty-five (45)
days after the affected party is notified of the Force Majeure Condition, (1)
shall be deemed selected.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates
listed below.
NOTIFY TECHNOLOGY
CORPORATION AT&T CORP.
By: /s/ Paul DePond By: /s/ Theodore Pasternak
----------------------------------- -----------------------------------
Name: Paul DePond Name: Theodore Pasternak
Title: Chief Executive Officer Title: Group Procurement Director
Date: February 12, 2002 Date: February 13, 2002
--------------------------------- ---------------------------------
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Attachment A
STATEMENT OF WORK
[This section intentionally left blank. Statement of Work will be sent
separately and incorporated at a later date.]
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Attachment B
AT&T TRADEMARKS
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