EXHIBIT 10.7
MOBILE VIRTUAL NETWORK ENABLER ("MVNE") SERVICES AGREEMENT
Between
Mobile Technology Services, LLC, and Teleplus Wireless Corp
This Mobile Virtual Network Enabler Services agreement ("Agreement") entered
into on December 29, 2005, is made between Mobile Technology Services, LLC, a
wholly owned subsidiary of InPhonic, Inc., with its principal place of business
at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("MTS"), and Teleplus
Wireless Corp., a Nevada corporation with its principal place of business at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("CUSTOMER")
RECITALS
1. CUSTOMER intends to offer wireless personal communications services ("PCS")
as a mobile virtual network operator ("MVNO") in the United States and Puerto
Rico.
2. CUSTOMER wishes to retain MTS to provide certain "back-office" enabling
services in support of CUSTOMER'S MVNO operations.
3. MTS wishes to provide those services, under the terms and conditions provided
herein.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
parties hereby agree as follows:
1. PROVISION OF SERVICES.
1.1. MTS will perform services under this Agreement as set forth herein
and in the Attachments attached to and made a part of this
Agreement, (collectively, the "Services").
1.2. MTS will provide development Services, consisting of MTS's
consultation and delivery of Services in connection with the design,
development and initial roll-out of CUSTOMER's MVNO service, as
detailed in the Statement of Work ("SOW") attached hereto as
Attachment A and the exhibits thereto.
1.3. After the initial roll-out of CUSTOMER's MVNO service, MTS will
provide ongoing Services in support of the CUSTOMER's service
offerings as detailed in Attachments A and B and the exhibits
thereto, including without limitation the service level agreement
("SLA"), or as authorized in accordance with Attachment D , or as
otherwise agreed by the parties in accordance herewith.
1.4. For the avoidance of doubt, the parties acknowledge and agree that
MTS is merely a provider of "back-office" enabling services and that
CUSTOMER is the mobile virtual network operator of record with sole
responsibility for compliance with all applicable state and federal
laws and regulations pertaining to CUSTOMER's operation of its PCS,
provided that MTS shall not act in a way that would hinder
CUSTOMER's ability to comply therewith.
2. PAYMENT
2.1. PRICING. CUSTOMER will pay for Services rendered by MTS hereunder in
accordance with the terms of Attachment B. The charges provided in
Attachment B shall constitute the sole charges levied for Services,
and except as expressly provided herein or otherwise agreed by the
parties in writing, no payments for Services will be due except
those described in Attachment B.
2.2. BILLING CYCLE. MTS will invoice CUSTOMER at the end of each month
for all fees incurred in such month. The "Invoice Date" shall be the
date an invoice is electronically mailed to CUSTOMER's designated
party. MTS shall also mail a version for archival back up. The "Due
Date" shall be the date 30 days after the Invoice Date.
2.3. TAXES. All monthly fees or charges to CUSTOMER hereunder are
exclusive of federal, state, local and foreign sales, use, excise,
utility, gross receipts and value added (VAT) taxes and other
similar tax-like charges, including tax-related surcharges or
applicable tariffs, which CUSTOMER agrees to pay, but MTS shall be
solely responsible for any taxes, levies or other charges that arise
from the income it receives from CUSTOMER hereunder.
2.4. CONSEQUENCES OF NON-PAYMENT. In the event CUSTOMER does not remit
payment within thirty (30) days after the Due Date, MTS may, at its
option and with five (5) days prior written notice, suspend Service
to CUSTOMER. MTS may terminate this Agreement for material breach
for non-payment in accordance with Section 4 below.
2.5. COLLECTION PROCEEDINGS. In the event which CUSTOMER does not remit
payment within thirty (30) days after the Due Date, MTS reserves the
right to contract with a third party for execution of collection
proceedings on behalf of MTS.
3. TERM. This Agreement shall be effective on the date first above written
and shall expire at the end of twelve (12) months after the date CUSTOMER
first commences sales operations and its systems are available to accept
orders and activate retail end users of its MVNO service (such date the
"Launch Date"). After the initial term, the Agreement will automatically
renew on a month to month basis until one party notifies the other with 60
days written notice of cancellation. Upon such renewal, the Parties agree
that the rates set forth in this Agreement shall continue to apply for the
first twelve (12) months of such renewal period.
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4. TERMINATION FOR CAUSE. This Agreement may be terminated (such termination
a "Termination for Cause"):
(a) by either Party, upon ten (10) days prior written notice to the other,
in the event that the other Party (i) ceases to function as a going
concern, or (ii) Subsequent to the Effective Date of this Agreement, files
a petition, voluntarily or involuntarily, under any state or federal
bankruptcy or insolvency law, which petition has not been dismissed or set
aside within sixty (60) days of its filing;
(b) by either Party, upon one (1) day prior written notice to the other,
in the event that the other Party has committed any act of fraud against
the other Party; or
(c) by either Party in the event that the other Party breaches any
material provision of this Agreement and fails to cure such breach within
thirty (30) days of its receipt of written notice of such breach, or if
such breach is not reasonably curable, if the breaching party fails to
implement a mitigation plan reasonably acceptable to the non-breaching
party within thirty (30) days of its receipt of notice of such breach.
5. EFFECT OF TERMINATION. Upon termination of this Agreement, MTS will at the
request of CUSTOMER continue to provide the Services in accordance
herewith for a limited period of time in order to effect an orderly
wind-down of operations (such period the "Phase-Out Period"). The
Phase-Out Period shall be as follows, but in no event shall the Phase-Out
Period extend beyond the expiration of the Term or renewal period in
accordance with Section 3. Sections 2.1, 2.2, 2.3, 5, 6, 9, 11, 12, 13,
16, 18 and 19 shall survive the expiration or earlier termination of this
Agreement.
5.1. Upon termination by MTS, the Phase-Out Period shall be no less than
sixty (60) days and up to ninety (90) days. CUSTOMER will be
required to pay all anticipated fees for the Phase-Out Period in
advance for any termination under Section 4. The anticipated fees
will be calculated based on the average of the three (3) previous
months multiplied by the number of months constituting the Phase-Out
Period.
5.2. Upon a Termination for Cause by CUSTOMER, the Phase-Out Period shall
be up to three hundred sixty five (365) days. Additionally, MTS will
provide Professional Services to assist the transition of Services
provided hereunder to CUSTOMER or CUSTOMER's agent.
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5.3. Upon cancellation by the Customer of this Agreement in accordance
with Section 3, the Phase-Out Period shall be no less than ninety
(90) days and up to 180 days. Additionally, MTS will provide
Professional Services to assist the transition of Services provided
hereunder to CUSTOMER or CUSTOMER's agent.
6. CONFIDENTIAL INFORMATION.
6.1. Except as otherwise expressly provided in this Agreement, each party
agrees that (a) all information communicated to it by the other and
identified at any time as confidential, whether before or after the
date hereof, (b) all information identified at any time as
confidential to which it has access in connection with the Services,
whether before or after the date hereof, (c) MTS Technology, as
defined below, (d) trade secrets provided by one party to the other
hereunder and any information provided by one party to the other
hereunder concerning products, processes, formulas, algorithms,
designs, schematics, works of authorship, inventions (whether or not
patentable or registerable under copyright, mask works or similar
laws and whether or not reduced to practice), discoveries, concepts,
ideas, improvements, techniques, methods, research, development and
test results, specifications, data, know-how, software, code,
programs, marketing plans and analyses, and business plans, (e) all
information concerning CUSTOMER's retail end users, including
without limitation, identity, telephone number and other contact
information, call history or other usage patterns, and (f) the terms
of this Agreement (collectively, "Confidential Information"), will
be used only for purposes of such party's performance under this
Agreement. Each Party agrees to prevent the disclosure and protect
confidentiality of the Confidential Information using the same means
as it uses to protect its own confidential information, but in no
event less than reasonable means. No such information will be
disclosed by one Party without the prior written consent of the
other Party; provided, however, that each may disclose the other
Party's confidential information to those of its employees, agents
or contractors who have a need to have access to such information in
connection with their employment, so long as the disclosing Party
advises each employee of the confidentiality obligations set forth
in this Section, and so long as the such agents or contractors agree
to be bound by the confidentiality obligations set forth in this
Section.
6.2. The foregoing will not prevent any Party from disclosing information
that (i) is publicly known or becomes publicly known through no
unauthorized act of that Party, (ii) is rightfully received from a
third party or (iii) is independently developed without use of the
other Party's Confidential Information. If Confidential Information
is required to be disclosed pursuant to the valid requirement of a
governmental authority, such Confidential Information may be
disclosed pursuant to such requirement so long as the disclosing
Party, to the extent possible, provides the other Party with timely
prior notice of such requirement and coordinates with the other
Party in an effort to limit the nature and scope of such required
disclosure.
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6.3. Upon written request of either Party at the expiration or
termination of this Agreement for any reason, all documented
confidential information and all copies thereof of that Party will
be returned to that Party or will be destroyed, with written
certification thereof being given to the requesting party.
6.4. Each Party hereto acknowledges that breach of this Section would
cause irreparable harm to the other Party for which monetary damages
alone would be an inadequate remedy. For this reason, the Parties
hereto agree that in the event of a breach or a threatened breach of
this Section, the non-breaching Party shall be entitled to the
entry, by a court of competent jurisdiction, of a temporary
restraining order, injunction or similar relief, as well as
reimbursement of reasonable attorneys' fees or other costs incurred
in obtaining such relief. Nothing in this Section shall be construed
as prohibiting either Party from pursuing other remedies available
at law or in equity against the breaching party or any other person
or entity.
7. PRESS RELEASES. Except as required by law, neither party will, without the
prior written approval of the other party, issue any press release or
other announcement concerning this Agreement or the parties' performance
hereunder. Such approval shall not be unreasonably withheld.
8. CHANGES.
8.1. CUSTOMER may at any time require additions, deletions or alterations
(all hereinafter referred to as a "Change") to the Services,
including but not limited to new service offerings.
8.2. To the extent that Changes are covered under Program Management, as
described in Attachment A, and can reasonably be performed within
the service levels established hereunder or in accordance with the
SOW without an increase in the resources used or expended in
connection therewith (such Changes "Changes Within Scope"), there
will be no adjustment in the fees due to MTS.
8.3. Upon delivery of a Change request, CUSTOMER will identify the
request as a Change Within Scope or as a Change outside scope. If
MTS disagrees with the description of a Change request as a Change
Within Scope, it will so notify CUSTOMER in writing within ten (10)
business days after the request is received, and the parties will
work together promptly to resolve the disagreement.
8.4. MTS will implement all Changes Within Scope as soon as reasonably
possible, and will implement simple changes to rate plans or
handsets not later than ten (10) business days after the Change
request is received.
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8.5. Within twenty (20) business days after receiving a request for a
Change that is not a Change Within Scope, MTS shall submit a written
proposal to CUSTOMER that includes any changes in MTS's costs or in
the delivery or schedule necessitated by such Change. CUSTOMER shall
in writing within ten (10) days of receipt of the proposal, either
(i) accept the proposal with a written amendment directing MTS to
perform the Change or (ii) advise MTS not to perform the Change in
which event MTS shall proceed with the original Service. MTS shall
not be entitled to any compensation for work done pursuant to or in
contemplation of such a Change, unless made pursuant to a written
amendment or Change Order issued by CUSTOMER. For any Changes that
require material alterations to MTS's technology, systems platform
or any interfaces to CUSTOMER's platform, the parties agree to
adhere to the Work Authorization Process as detailed in Attachment
C.
9. OWNERSHIP.
9.1. Each party will retain all rights in any software, ideas, concepts,
know-how, development tools, techniques or any other proprietary
material or information that it owned or developed prior to the
Effective Date, or acquired or developed after the Effective Date
without reference to or use of the intellectual property of the
other party.
9.2. All right, title and interest in and to all tangible work and work
products developed or produced under this Agreement by MTS, whether
comprising data, computer programs, reports, documentation or other
technical information, are owned by MTS; provided, however, that MTS
does not obtain any ownership interest in and to any pre-existing
materials of Customer that are provided to MTS for use in performing
the Services.
9.3. All software that is licensed by a party from a third party vendor
will be and remain the property of such vendor.
9.4. Nothing in this Agreement shall create in either party any rights in
any trademark, trade name, service ▇▇▇▇, insignia, symbol,
identification and/or logotype of the other party. Before either
party uses any such ▇▇▇▇ of the other party, it shall obtain the
prior written consent of the other party.
10. LIMITATIONS ON LICENSE. CUSTOMER shall provide, or cause to be provided to
MTS, the right to access CUSTOMER-owned software and software licensed to
CUSTOMER by a vendor if such access is reasonably required for MTS to
perform MTS's duties hereunder, but for no other purpose. CUSTOMER shall
be responsible for obtaining any consents, licenses or other rights
necessary for MTS to perform the Services and for finding an alternative
solution in the event a vendor refuses consent. MTS confirms that the only
license it requires for the purposes of this Section 10 is a license from
CCH.
11. LIMITATION OF WARRANTIES: EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
HEREIN, MTS DOES NOT WARRANT ANY CONNECTION TO, TRANSMISSION OVER, NOR
RESULTS OF USE OF, ANY NETWORK CONNECTION, SERVICE, EQUIPMENT OR
FACILITIES PROVIDED UNDER THIS AGREEMENT. MTS FURTHER DISCLAIMS ALL OTHER
WARRANTIES NOT SPECIFICALLY PROVIDED HEREIN, WHETHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
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12. LIMITATION OF LIABILITIES. EXCEPT FOR THE PARTIES' RESPECTIVE
INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES
WHETHER OR NOT FORESEEABLE (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR THE
LOSS OF DATA, GOODWILL OR PROFITS) ARISING OUT OF OR IN RELATION TO THIS
AGREEMENT EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH LIABILITY.
13. WARRANTIES AND REPRESENTATIONS AND DISCLAIMER OF WARRANTIES:
13.1 MUTUAL REPRESENTATIONS AND WARRANTIES. Each party to this Agreement
represents and warrants that: (i) it has all requisite power and
authority to execute, deliver and perform its obligations hereunder
and under any applicable SOW; (ii) it shall avoid deceptive,
misleading or unethical practices that could adversely affect the
performance of the other party's obligations under this Agreement or
under any applicable SOW or damage the reputation of the other
party; and (iii) it is not a party to any agreement with a third
party, the performance of which is reasonably likely to affect
adversely its ability or the ability of the other party to perform
fully its respective obligations hereunder.
13.2 CUSTOMER REPRESENTATIONS. CUSTOMER represents and warrants that it
shall comply with all laws and regulations applicable to the
performance of its obligations hereunder (including, without
limitation, any laws or regulations applicable to CUSTOMER as a
MVNO) and under any applicable SOW under the terms of this Agreement
and shall obtain all applicable permits and licenses (including
intellectual property licenses) required of it in connection with
its obligations hereunder or thereunder.
13.3 DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE
MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR
USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE, OF ANY
INVENTION, SERVICE, SOFTWARE, HARDWARE OR OTHER MATERIALS PROVIDED
UNDER THIS AGREEMENT.
14. ASSIGNMENT. Neither of the parties may, without the other party's prior
written consent, which consent shall not be unreasonably withheld, assign
or transfer this Agreement, or any of its rights or obligations under this
Agreement, to any person ("Assignee"), except that either party may assign
this Agreement or its rights and obligations hereunder (i) as part of a
merger of the party or a sale of substantially all of the assets of the
party or substantially all the assets relating to CUSTOMER's MVNO business
or MTS's MVNE business, respectively, (ii) to a successor in interest upon
change of control or reorganization, or (iii) to a third party that
controls, is controlled by, or is under common control with such party,
unless such third party is a Direct Competitor of the other party;
provided, however, that the Assignee agrees to fully perform and be bound
by the provisions of this Agreement. For the purposes of this section, a
"Direct Competitor" of the CUSTOMER is any third party that engages in or
is an affiliate of a third party that engages in the selling of pre-paid
wireless airtime to consumers.
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15. CLAUSE HEADINGS - The headings of the clauses in this Agreement are
inserted for convenience only and are not intended to affect the meaning
or interpretation of this Agreement.
16. INDEMNITY PROVISIONS.
▇▇.▇.▇▇ MTS. Subject to the terms of this Section 16, MTS will defend,
indemnify and hold CUSTOMER harmless from and against all claims,
complaints, losses, costs and expenses (including attorneys' fees)
asserted by third parties based upon a claim that the Services,
deliverables or work product produced under this Agreement infringe
any United States patent, copyright, trade secret, or other
intellectual property right of a third party ("IP Claim"). The
foregoing states MTS's entire liability and CUSTOMER's sole and
exclusive remedy for intellectual property rights infringement. In
no event will MTS have any obligations under this Section 16.1 or
any liability for any claim or action if the IP Claim is caused by,
or results from: (1) CUSTOMER's combination or use of the
deliverable or work product with software, services, or products not
developed or provided by MTS, (2) CUSTOMER's failure to abide by all
applicable laws, rules, regulations and orders that affect the
deliverable or work product, or (3) any specifications, designs,
plans or other documents or information provided by CUSTOMER to MTS.
▇▇.▇.▇▇ CUSTOMER. Subject to the terms of this Section 16, CUSTOMER will
defend, indemnify and hold MTS harmless from and against all claims,
complaints, losses, costs and expenses (including attorneys' fees)
asserted by third parties based upon a claim that arises out of or
in connection with CUSTOMER's compliance or failure to comply with
all applicable laws and regulations applicable to CUSTOMER's
business activities or operations as a MVNO.
16.3.INDEMNIFICATION PROCEDURES. An indemnified party under this Section
16 shall: (i) promptly notify the indemnifying party in writing of
any action, suit or proceeding for which the indemnified party seeks
indemnification from the other party; (ii) allow the indemnifying
party sole control of the defense and settlement of such suit,
action or proceeding; and (iii) provide the indemnifying party with
all reasonable requested assistance, at the indemnifying party's
reasonable expense, in connection with the indemnifying party's
defense and settlement of such action, suit or proceeding.
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17. KEY PERSONNEL AND VENDORS. MTS will notify CUSTOMER promptly after it
replaces, dismisses or reassigns any agent or employee that interfaces
directly with CUSTOMER and has direct management responsibility for the
Services provided hereunder, or any agent or employee that is a designated
point of contact for CUSTOMER. MTS will notify CUSTOMER promptly after it
replaces, dismisses or reassigns any third party vendor that provides
substantial support for the Services provided hereunder.
18. GENERAL TERMS.
18.1.INDEPENDENT CONTRACTORS. The parties hereto are acting as independent
contractors and under no circumstances shall any of the employees of
one party be deemed the employees of the other as a result of this
Agreement for any purpose. Except as otherwise expressly provided in
this Agreement, this Agreement does not constitute either party as
the agent or legal representative of the other party and does not
create a partnership or joint venture between the parties. Except as
otherwise expressly provided in this Agreement, neither party shall
have any authority to act for the other party in any agency or other
capacity, to make commitments of any kind for the account of, or on
behalf of, the other party or to contract for or bind the other
party in any manner whatsoever. This Agreement confers no rights of
any kind upon any third party.
18.2.FORCE MAJEURE. Neither party shall be liable for failure to fulfill
its obligations hereunder if such failure is due to causes beyond
its reasonable control, including, without limitation, actions or
failures to act of the other party or any retail end user, acts of
God, fire, catastrophe, governmental prohibitions or regulations,
viruses which did not result from the negligent acts or omissions of
such party, its employees or agents, national emergencies,
insurrections, riots or wars, or strikes, lockouts, work stoppages
or other labor difficulties. The time for any performance required
hereunder shall be extended by the delay incurred as a result of
such act of force majeure, and any party that is unable to perform
as a result of such act of force majeure shall act with diligence to
correct or mitigate such force majeure.
18.3.DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to a party under this Agreement shall
impair any such right, power or remedy of such party nor shall it be
construed to be a waiver of any such breach or default, or an
acquiescence therein, or of any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any
kind or character on the part of either party of any breach or
default under this Agreement, or any waiver on the part of either
party of any provisions or conditions of this Agreement must be made
in writing and shall be effective only to the extent specifically
set forth in such writing. All remedies, either under this Agreement
or by law or otherwise afforded to a party, shall be cumulative and
not alternative.
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18.4.BINDING AGREEMENT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and assigns as permitted hereunder. No person or entity
other than the parties hereto is or shall be entitled to bring any
action to enforce any provision of this Agreement against either of
the parties hereto, and the covenants and agreements set forth in
this Agreement shall be solely for the benefit of, and shall be
enforceable only by, the parties hereto or their respective
successors and assigns as permitted hereunder.
18.5.COMPLIANCE WITH LAW. Each party is responsible for complying with all
applicable rules, regulations, statutes, codes, ordinances and other
requirements, whether federal, state, local, foreign, or
international, in connection with the matters contemplated by this
Agreement to be performed by that party.
▇▇.▇.▇▇▇▇▇▇▇▇▇. Each party will, at its own expense, maintain insurance
policies that cover the party's activities under this Agreement and
the activities of the party's employees, agents and representatives,
including, but not limited to, workers compensation insurance and
comprehensive general liability, and errors and omissions liability.
Upon the request of the other party, each party shall arrange for
its insurer(s) to provide the requesting party with a certificate of
insurance evidencing such coverage.
18.7.SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, such provision shall be construed
so as to render it enforceable and effective to the maximum extent
possible in order to effectuate the intention of this Agreement; and
the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired
thereby. If necessary to affect the intent of the parties, the
parties will negotiate in good faith to amend this Agreement to
replace the unenforceable language with enforceable language which
is closely as possible reflects the intent.
18.8.INSPECTION. Each of the parties shall maintain records containing
information sufficient to verify the completeness and accuracy of
its respective business activities that are directly related to this
Agreement. Once every fiscal quarter, with no less than thirty (30)
days prior written notice, each party shall have the right to have
an independent auditor examine certain books and records of the
other party. The examination shall be conducted during regular
business hours. The examination shall be reasonably limited in scope
and duration to verify the completeness and accuracy of each party's
accounting of subscriber count, call volumes, or other data that
dictate the payment obligations under this Agreement. In the event
that the party conducting the audit establishes that an amount is
payable (or a refund is due) to the party conducting the audit from
the other party, such amount shall immediately be paid or refunded
together with an amount equal to the direct costs incurred as a
result of the audit. From time to time, and acting reasonably,
technical or operational personnel employed or retained by CUSTOMER
may inspect MTS' operational and business records during regular
business hours, in order to verify the achievement by MTS of the SLA
called for hereunder in Attachment D.
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18.9.TAXES. Each party shall be responsible for the withholding and/or
payment , as required by law, of all federal, state and local taxes
imposed on such party or its employees because of the performance of
the Services hereunder.
18.10. NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
sole and exclusive benefit of the signatories and is not intended to
benefit any third party or deemed to provide third parties with any
remedy, claim, right of action, or other right.
19. NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by certified or
registered mail (return receipt requested), overnight express air courier,
charges prepaid, or facsimile addressed as follows, and such notices will
be deemed to be made when actually received: If to MTS:
Mobile Technology Services, LLC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax ▇▇▇-▇▇▇-▇▇▇▇
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If to CUSTOMER:
Teleplus Wireless, Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: Marius Silvasan, CEO
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
20. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, United States of
America, without regard to its conflicts of law provisions. The Agreement
may be amended only in writing signed by both parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
TelePlus Wireless Corp. Mobile Technology Services, LLC. ("MTS")
By: /s/ Marius Silvasan By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------ ------------------------
Name: Name:
---------------------- ----------------------
Title: Title:
--------------------- ---------------------
I have the authority to bind the I have the authority to bind the
Corporation Corporation
Date: Date:
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ATTACHMENT A
STATEMENT OF WORK (SOW)
1. SERVICES TO BE PERFORMED
MTS shall perform the Services as defined in this Statement Of Work and
related Exhibits hereto. MTS shall provide sufficient equipment,
personnel, software and other resources to perform these Services. Where
this Statement of Work provides for the parties to reach further agreement
on the scope and nature of services to be performed, such agreement will
be guided by the custom and practice of the wireless industry in general,
and the MVNE industry in particular. Services will be provided in
accordance with a rapid launch plan maintaining similarity to existing
capability where possible. Further, notwithstanding anything in the
Agreement or the Attachments thereto, it is understood that from time to
time only certain Services as highlighted in Rate Schedule E, G, H and I
will be transferred to the CUSTOMER upon no less than 60 days prior
written notice by the CUSTOMER to MTS setting forth the Services to be
transferred to the CUSTOMER and the timeframe within which this transfer
is to take place. Upon such transfer, the CUSTOMER shall no longer pay any
fees to MTS in connection with the transferred Service. The initial
Services will include those described below. For the purposes of customer
service as set forth in Attachment B (Pricing), upon the giving of such
notice by the CUSTOMER to MTS for the transfer of services, the CUSTOMER
may begin a gradual reduction in the number of customer service
representatives or other employees of MTS engaged in providing the service
to be transferred.
1.1. Development and Implementation Services
MTS will provide such Services as are necessary to develop and implement
the systems and processes necessary to launch CUSTOMER's MVNO service as
defined in this SOW Exhibit 1 (as modified in accordance herewith). All
deliverables required hereunder will be provided in form as defined in
this SOW, Exhibit 1.
MTS will evaluate the systems and processes necessary to launch and
operate CUSTOMER's MVNO service as defined in this SOW, Exhibit 1 (as
modified in accordance herewith). MTS and CUSTOMER will agree upon such
systems and processes. MTS will develop, test, deliver and implement such
systems and processes. Any changes to CUSTOMER's MVNO service offering
will be subject to the Change process as identified in the main body of
the Agreement
13
Exhibit 1, CUSTOMER MVNO Launch Plan, outlines currently-anticipated
launch requirements for CUSTOMER's MVNO service, and the general types of
services MTS will deliver to CUSTOMER. The parties will further develop
and mutually agree to testing and acceptance criteria for deliverables.
Any Changes to the CUSTOMER's MVNO service will be subject to the Change
process as identified in the main body of the Agreement.
The pricing for MTS's development and implementation Services is set forth
in Attachment B, section I.
1.2. Ongoing Program Management Services
After CUSTOMER's MVNO service is developed and commercially launched, MTS
will provide CUSTOMER with such ongoing program management services as are
necessary to support CUSTOMER's ongoing MVNO business. These services will
include, but are not limited to:
14
--------------------------------------------------------------------------------
Component Category Work Included
--------------------------------------------------------------------------------
Overall Subscriber Offer and Rate plan table development,
Management implementation, and changes.
--------------------------------------------------
Design and Implementation of handset changes.
(Compatibility with features, rate plans,
storefront development, pricing, contract,
procurement, and creative)
--------------------------------------------------
Collateral and CUSTOMER communications changes
(Content, triggers and mechanisms for
communications, capturing communications in
CUSTOMER profile)
--------------------------------------------------
Design and Management of campaigns and promotions
(impacting storefront, creative, billing changes,
updates to Catalyst, agent updates, reporting)
--------------------------------------------------
Brand management, changes and implementation to
adhere to CUSTOMER guidelines. This work may apply
to websites, (sales, inquiry, and manage) Boxing,
sleeves, collateral, devices, accessories, etc.
--------------------------------------------------
Schedule and Resource Management for project(s)
and release schedule(s), staffing cost(s)
--------------------------------------------------
Trouble Ticketing
--------------------------------------------------------------------------------
General & Administrative Program/Contract management (Standard and ad hoc
report generation and distribution)
--------------------------------------------------
Management of business rule changes and impact
assessments to storefronts , all systems
downstream and agent updates.
--------------------------------------------------
SLA and operational reporting
--------------------------------------------------
Concept and offer feasibility and planning
--------------------------------------------------
Work Authorization Process
--------------------------------------------------
Governance Process
--------------------------------------------------
Participation in specific project reviews
--------------------------------------------------
Monthly and quarterly planning sessions to
identify enhancements to system, information
sharing - operational results and marketing plans
--------------------------------------------------------------------------------
The parties will further develop and refine the program management services that
may be required in order to account for developments in CUSTOMER's MVNO service
offerings and business methods.
The pricing for MTS's ongoing program management services is set forth in
Attachment B, section II.
15
1.3. Transactional Services
MTS will provide Transactional Services that will be used after the launch
of CUSTOMER's MVNO service. These services will include, but are not
limited to:
A. Sales and channel development support (e.g., web storefront
development, dealer/agent network development, and web retail
activity)
B. Voice and data/content offer availability
C. Order processing, including order fulfillment and order fallout
management
D. Account set up and subscriber activation
E. Billing, including near real-time charging, data mediation,
settlements and collections
F. Service denial and order fraud management
G. Certain subscriber support, including web-based subscriber service
access, as well as subscriber access to subscriber management and
service tools
H. Subscriber service - IVR and Inbound call Support for Tier 1, Tier 2
and Tier 3.
I. Financial reporting
J. Report generation
K. Account maintenance including web-based subscriber access and
support, maintenance, development
L. Inventory management
M. Processes, including but not limited to:
i.Receivables
ii. Risk assessment
iii. Order Fraud management
iv. Web commerce platform
N. Other Support Services, including but not limited to:
i.Technical
ii. Marketing
iii. Systems
iv. OEM Handset
▇.▇▇▇▇▇▇▇▇
vi. Knowledge transfer
Transactional services are priced as set forth in Attachment B, section
III.
16
1.4. Professional Services Work
MTS will provide professional services, via the Work Authorization
Procedures (Attachment C), at the request of CUSTOMER. Professional
services work includes work outside of the scope of development, ongoing
program management and transactional services previously identified and
authorized. The pricing for professional services is set forth in
Attachment B, section IV.
1.5. Consulting Services
MTS will provide consulting services, the scope of which will be set forth
in a Work Authorization to be created within 30 days of the closing date
of this agreement
The provision of services by the Consultant to the CUSTOMER hereunder
shall commence on the signing of this agreement and shall continue for up
to ten (10) days in January 2006, up to ten (10) days in February 2006, up
to ten (10) days in March 2006 and up to ten (10) days in April of 2006.
CUSTOMER may cancel these consulting services at any time and pay for work
performed up to the date that a termination notice is received by MTS.
MTS will submit a monthly progress report as well an expense report, all
of which shall be submitted by MTS to the CUSTOMER on the last day of each
month during the term of these services.
Consulting Services are priced as set forth in Attachment B, section VI.
2. PLANNING SESSIONS
CUSTOMER and MTS shall jointly engage in quarterly planning sessions. The goals
of these planning sessions shall include but are no limited to the following:
o Joint identification of problems or issues, and remedial strategies
o Joint identification of potential enhancements for greater
efficiency and effectiveness
o Sharing marketing and business plans
o Operational stewardship
17
ARTICLE 16
3. PERFORMANCE STANDARDS BY MTS
This section describes the methods that MTS will use to perform
information technology services that will be rendered in connection with
this Agreement.
3.1. Classification of Work Outlined in Section 3
The following will be performed by MTS and are included in the Monthly
Maintenance Fee indicated in Attachment B, Section III, Transactional
Pricing:
o Problem Management (Section 3.2 of this Attachment A)
o Crisis Management (Section 3.3 of this Attachment A)
o Software Maintenance Services (Section 3.4 of this Attachment
A)
o Maintenance/Production (Section 3.5.1 of this Attachment A)
The following will be performed by MTS and are included in the Ongoing
Program Management Pricing, indicated in Attachment B, Section II:
o Business Prioritization and Planning (Section 3.6 of this
Attachment A)
o Routine Software Development (Section 3.7 of this Attachment
A)
o Concept and Feasibility for Work Authorized by CUSTOMER
(Section 3.8 of this Attachment A)
o Updates to existing offers and new offer creation that does
not require structural changes as in Table Updates (Section
3.9 of this Attachment A)
o MTS Systems Documentation (Section 3.10 of this Attachment A)
o Maintenance/Production (Section 3.5.2 of this Attachment A)
o Security/Data Protection (Section 3.11 of this Attachment A)
The following will be performed by MTS and must be authorized via the Work
Authorization Procedures (Attachment D) and paid for on a per request
basis according to the fee structure outlined in Attachment B, Section IV,
Professional Services Pricing for Authorized Development Work:
18
o Non-Routine Software Development (Section 3.12 of this
Attachment A)
o IT Solution / Capability Design and Development (Section 3.13
of this Attachment A)
o IT Configuration Management (Section 3.14 of this Attachment
A)
3.2. Problem Management
MTS's standard fault management processes, including escalation procedures
will be provided within 30 days of the execution of this Agreement.
3.3. Crisis Management
MTS shall provide increased support to address any crisis or emergency
problem identified to MTS by CUSTOMER or identified by MTS to CUSTOMER.
MTS shall provide support necessary (i) to reinstate service to CUSTOMER
or its End-Users or (ii) to provide support to CUSTOMER to comply with
business directives of CUSTOMER senior management. Once a crisis or
emergency situation has been identified, MTS shall continue to provide
status to CUSTOMER until the emergency or crisis has been resolved. During
the time between crisis identification and resolution, MTS will work with
CUSTOMER to ensure the crisis is resolved in a manner satisfactory to
CUSTOMER and its subscribers. MTS's escalation levels and response
intervals are covered under section 3.4, for software maintenance.
3.4. Software Maintenance Services
MTS will maintain, update, and upgrade all software provided to CUSTOMER,
or with which the Services are delivered, in accordance with generally
accepted business practices.
3.4.1. Error Correction
MTS will timely repair any errors that arise in MTS systems code
and/or operational modifications. Production errors include Severity
Levels 1, 2 and 3 production problems that result in MTS system
failure or non-failure errors where there is a non-conformance to
the MTS system specifications.
19
For MTS Third Party Software, MTS shall be responsible for:
o Identifying system problems,
o Notifying the applicable vendor,
o Notifying CUSTOMER, o Arranging for corrections to be
made,
o Coordinating the corrections,
o Testing the corrections, including coordination with
CUSTOMER systems, as necessary,
o Scheduling the installation of the corrections into
production, and
o Supporting the promotion of the change to production.
o MTS shall manage, escalate and resolve reported problems
as identified by CUSTOMER.
o MTS shall (i) comply with problem classification
response requirements by Severity Level in accordance
with the severity level classifications defined in the
table below and (ii) provide a recovery plan, that
includes notification procedures, back-out plans,
temporary workaround processes, progress reports and
fallback procedures.
o In addition to performing root cause analysis as
required under the Agreement, MTS shall upon request
perform root cause analysis for Severity 1 and 2
problems related to or impacting the Services.
o CUSTOMER, or its designee, shall lead a post-outage
review of all Severity Level 1 and 2 production problems
in order to identify and assign appropriate improvement
initiatives to the appropriate Party.
"Severity Levels" shall mean the three levels according to
which MTS and CUSTOMER shall classify problems in respect of the
Services as set forth below:
20
-----------------------------------------------------------------------------------------------------------------
Severity Level Description Service Expectation
-----------------------------------------------------------------------------------------------------------------
1 o Mission- or business- Mean Time to Bypass (MTTB):
critical applications, 4 hr. clock time
components, services or 24 x 7 support until
functions are not 1. The application or service is restored
available or are 2. An acceptable workaround with the
severely impaired to CUSTOMER has been implemented
the point that 3. A misclassified event can be
revenue-generation, downgraded
client functionality or
service is either o Minimum 2-hr. updates required until
halted or significantly confirmation of bypass or
affected; or restoration.
o Productivity is greatly
compromised; or Max Time to interim solution:
o Complete loss of a 48 hours unless otherwise negotiated by
Service for all end both parties
users, an entire market
or business MTS will provide implementation of
solution that eliminates recurrence of
severity 1 outages.
Examples:
Irreversible Corrective Action (ICA):
o System crash. Mutually agreed upon estimated time of
o Database corruption completion (ETC) for ICA will be provided
rendering system within 7 days of ticket resolution.
useless. ICA will be implemented no later than 21
o Critical deliverables, days from ticket origination date.
such as screens,
printed or online
outputs or
interface files, are
not available.
o Cannot process online
or batch transactions.
o Resource limitation
(e.g., disk space)
prevents user from
doing work
without an agreed upon
workaround
-----------------------------------------------------------------------------------------------------------------
21
-----------------------------------------------------------------------------------------------------------------
Severity Level Description Service Expectation
-----------------------------------------------------------------------------------------------------------------
2 o A component or a Mean Time to Bypass:
feature of a mission
critical application or 8 hrs. Clock Time
service is unavailable 24 x 7 support until
or is severely 1. The application or service is
impaired, to the point restored
that 2. An acceptable workaround with the
revenue-generation, client has been implemented
client functionality or 3. If, for business reasons, a fix
service is either cannot be implemented immediately,
halted or significantly with client and management approval,
affected either ticket can be suspended until bypass
directly or indirectly can be implemented
o Business-critical
application that is o Minimum 2-hr. updates required by fix
unavailable or is agent until confirmation of bypass or
severely impaired, restoration.
rendering it unusable
o A major impairment of Max Time to interim solution:
the performance of any 72 hours unless otherwise negotiated by
service or critical both parties
application for
all clients in a market
or business MTS will provide implementation of solution
that eliminates recurrence of severity
2 outages.
Examples: ICA:
Mutually agreed upon ETC for irreversible
o Missing report needed corrective action (ICA) will be provided
to perform job. within 7 days of ticket resolution.
o Missing message when a ICA will be implemented no later than 21
major error occurs. days from ticket origination date.
o System cannot process
normal alarm rate
within required time
limits.
o Incorrect response to
command with an agreed
upon workaround
available.
-----------------------------------------------------------------------------------------------------------------
22
-----------------------------------------------------------------------------------------------------------------
Severity Level Description Service Expectation
-----------------------------------------------------------------------------------------------------------------
3 o Application, component, Mean Time to Bypass:
business service or 5 business days or negotiated "CUSTOMER"
function has date
encountered a
non-critical problem Problem Resolution Expectations: 82.5% of
with minimal loss of tickets will be resolved within 1 standard
functionality; deviation of the MTTB or better.
o Problem may be
identified as a Max time to interim solution:
functional defect or Not applicable for severity 3.
minimal degraded
performance; ICA:
o Problem may cause a 7 business days
complete work stoppage MTS will provide root cause analysis and
for a single implement permanent irreversible
user/client; corrective action for severity 3 tickets.
o A partial loss of
Service for all clients
in a market or business
Examples:
o Defective installation
script with an
acceptable workaround.
o Ambiguous error
messages.
o Incorrect response time
to a command.
An acceptable
workaround is in place
to enable production
processing.
-----------------------------------------------------------------------------------------------------------------
23
3.4.2. Hardware/Software Conversions and Technology Mandated
Conversions
MTS shall maintain a current systems environment as set forth
herein. MTS will convert or refresh its hardware and software in
order to keep its systems current, and shall perform all necessary
systems modification, testing and acceptance testing. CUSTOMER shall
assist in systems testing, as necessary, to ensure that user
functionality is maintained.
MTS shall perform maintenance services related to development and
production server administration for MTS's systems, including:
o Sizing for the platform in order to meet CUSTOMER's
performance requirements (e.g., database capacity,
throughput, response time), configuration management and
load balancing or other performance tuning techniques as
necessary to ensure performance requirements are met,
o Providing documentation and information (including cost
and performance data) to support CUSTOMER's budget
requests,
o Performing capacity upgrades, and
o Escalating MTS third party software problems to
applicable vendors and managing the problem resolution
with the third party.
3.4.3. Preventive Maintenance
MTS shall provide preventive maintenance services, including
monitoring production processing and results, MTS systems tuning,
code restructuring and other services customarily undertaken to
improve the efficiency and reliability of programs, to minimize
ongoing maintenance requirements and to support the daily operation
of the MTS systems. MTS shall monitor and analyze trends to identify
potential problems.
24
3.5. Maintenance/Production
3.5.1. Production Control, Monitoring and Scheduling - MTS shall:
o define and support production schedules based on CUSTOMER's
requirements;
o support the integration of CUSTOMER and MTS schedules, as
appropriate;
o perform prudent monitoring of production to maintain or exceed
the baseline metrics specified in the service levels; and
o implement and follow escalation procedures to ensure
resolution of production problems as required by Section
3.8.1, Error Correction.
3.5.2. Database Administration - MTS shall perform database
administration for the MTS systems.
3.6. Business Prioritization and Planning
MTS will designate a single account manager for the Services, and will
provide business and emergency after-hours contact information for that
individual. MTS will also designate, as appropriate, specific project or
functional managers for purposes of issue-specific communications and
problem solving. If CUSTOMER reasonably and in good faith objects to a
particular employee service as the account manager, CUSTOMER will notify
MTS and MTS will assign a new employee within thirty (30) days.
The account manager and/or the specific project or functional managers,
together with such other employees as may be advisable, shall participate
as reasonably needed in CUSTOMER's business planning and development.
3.7. Routine Software Development
MTS will create and/or modify such software as is necessary to provide the
development services and the ongoing program management services,
including without limitation software required for website development,
billing processes, and other software necessary to enable the features and
plans described on Final Exhibit 1 or otherwise mutually agreed by the
parties. Any Changes to the Service will be subject to the Change process
as defined in the Agreement.
25
3.8. Concept and Feasibility of New Services
MTS shall provide concept and feasibility analysis for proposals for new
Services that CUSTOMER may seek to introduce before or after CUSTOMER's
initial launch date. Before any such Services move beyond the concept and
feasibility stage, and before any development or implementation may begin,
such work must be authorized by CUSTOMER in accordance with Attachment C
(Work Authorization Process).
MTS shall:
o For concept and feasibility work, provide support to CUSTOMER as
part of its Program Management Fees as defined in Attachment B.
o Where concept and feasibility work conflicts with the delivery of
Development services for this contract, the MTS will work to resolve
schedule conflicts or may request an adjustment of the development
schedule from CUSTOMER.
o Provide input (including projected labor prices) and resources to
support integrated cross-MTS projects for, as scheduled and directed
by CUSTOMER.
o Where only MTS systems are involved in a project, MTS is responsible
for release planning and project management oversight/coordination.
CUSTOMER is responsible for managing release planning and project
management oversight and coordination for their own systems
MTS shall provide such Services as are necessary to integrate MTS Systems
with CUSTOMER's external systems as specified in this SOW, Exhibit 1.
3.9. Table Updates
MTS shall update tables for offers as requested by CUSTOMER.
26
3.10. MTS Systems Documentation
MTS shall:
o develop and maintain all documentation regarding MTS systems;
o produce sufficient documentation for each new development or
enhancement project;
o provide one (1) copy of all documentation to CUSTOMER, and
make such documentation available in electronic format;
o maintain systems documentation; and
o resolve issues relating to documentation related to the MTS's
systems used to provide the Services within the course of its
normal day-to-day operations.
CUSTOMER shall have the right to copy all documentation for its own use
and the use of its employees, contractors and agents.
3.11. Security and Data/System Protection
3.11.1. Errors. MTS shall have the ability to identify any material
error, inadequacy or omission, as defined in the requirements
section of this SOW Exhibit 1, in any data provided by
CUSTOMER or CUSTOMER's subscribers before that data is
processed and fulfilled, and shall promptly notify CUSTOMER or
such subscriber and request a correction.
3.11.2. Disaster Recovery. MTS maintains a disaster recovery plan,
and shall deliver a copy of that plan to CUSTOMER. The
disaster recovery plan will include a secondary site to
support the Services in the event of an interruption of the
Services of more than six (6) hours' duration (a "Disaster")
that requires such relocation, and will provide plans for the
expeditious relocation of Services to the alternate site and
complete resumption of such Services. The disaster recovery
plan will be updated as business and technical developments
dictate.
3.11.3. Backup. MTS will keep in a separate and safe place
additional copies of all records and data required to be
maintained by MTS hereunder, and copies of all software or
other processes used to provide the Services, and will be able
to access and use such data as necessary in case of Disaster
or data loss.
27
3.11.4. Data Protection. MTS will use reasonable care in accordance
with standard commercial practices to protect against and
minimize the likelihood of damage, loss of data, delay or
error resulting from any cause, including unforeseeable events
such as power outages, system or network overloads, hacker or
virus attacks, natural disasters or other events, and will use
best efforts to mitigate the effects of any such occurrence.
3.12. Non-Routine Software Development
Software development that is outside the scope of what is necessary to
enable the features and plans described on Final Exhibit 1 may be obtained
by CUSTOMER as part of MTS's optional professional services work. MTS
shall obtain CUSTOMER authorization in accordance with the Work
Authorization Process and follow a well-established disciplined software
development methodology that is consistent with sound industry practices.
For any such software that is outside the scope of the development
services and ongoing program management services, MTS will engage CUSTOMER
for approval of major deliverables.
MTS will apply project management discipline to manage projects. Project
management functions include planning, staffing, monitoring, controlling
and concluding of business change and development efforts performed to
achieve project objectives. Project management functions will be scaled to
reflect the complexity, cost and risk of the project. MTS will provide
support to the designated project manager and will submit regular status
on progress.
3.13. IT Solution / Capability Design and Development
3.13.1. Service Delivery
MTS shall engage in the design and development of non-standard
information technology solutions and capabilities as requested by
CUSTOMER in accordance with the Work Authorization procedures
specified in Attachment C. The terms and conditions of such
estimates will be based on this scope of services and will provide
input (including projected labor costs) and resources to support
such projects.
28
o Analysis and definition of requirements and
specifications for interfaces.
o Supporting requirements and specifications during
implementation.
o Scheduling all phases of testing and implementation.
o Testing the interfaces.
o Resolution of issues that cross between CUSTOMER systems
and MTS's systems.
o Post implementation support.
o Provide access to performance data, project management
information, project plans and status, cost estimates
and information, and Service Level performance in
accordance with the Procedures Manual.
3.13.2. Testing
MTS shall perform sufficient testing such that defects do not exceed
the baseline metrics specified in the service levels. This testing
shall include the following types, as appropriate:
o Unit and System Test
o Integration System Test
o End-To-End Testing
o User Acceptance Testing
MTS shall maintain an appropriate testing environment to allow
end-to-end testing, including testing with CUSTOMER systems when
appropriate.
3.13.3. Release Management
29
In order to better to control risk and cost, MTS has a policy of
grouping CUSTOMER systems changes into releases, a schedule of which
is agreed upon by MTS and CUSTOMER. Where CUSTOMER's and MTS's
release schedules are interdependent, CUSTOMER and MTS will
synchronize release schedules. MTS shall:
o monitor and report release progress and schedule;
o distribute and implement releases upon approval from
CUSTOMER;
o support release packaging and project commitments (to
the extent such release packaging or project commitments
are provided by MTS);
o notify CUSTOMER of all application changes.
3.13.4 Data Interfaces
o MTS shall ensure that any changes to data interfaces
with CUSTOMER systems are adequately verified and
tested, and are approved by CUSTOMER prior to
implementation; and
o MTS shall manage changes to interfaces in adherence to
software release schedules maintained by MTS.
3.14. Configuration Management
MTS shall coordinate the transfer of all changes made by MTS into the
production environment to assure continuity of operations, including risk
assessment, back-out plans, contingencies and communication of all
impacting changes to the CUSTOMER's designated point of contact.
4. Performance and Reporting
4.1. In addition to providing any other reports and other deliverables
that may be required hereunder, MTS will provide monthly reports
measuring the Service Levels as identified in Attachment D.
30
5. Acceptance by Customer
For each deliverable to be provided as part of the Services, including without
limitation all updates, upgrades, modifications, enhancements, new versions and
new releases, CUSTOMER shall have the right to review and perform acceptance
testing of such deliverables. Before finalizing the work authorization on any
such deliverable, MTS will determine in consultation with CUSTOMER certain
objective functional characteristics, acceptance criteria and performance
metrics (including fault and error rates) that will be expected of that
deliverable. CUSTOMER will perform testing and verification of each such
deliverable, and shall allow MTS to participate in such testing at MTS's
discretion, sufficient to demonstrate that such deliverable provides the
expected functional characteristics, meets or exceeds acceptance criteria, and
meets or exceeds the expected and performance metrics. The deliverable will be
deemed to be accepted by CUSTOMER at the end of ten(10) business days after
delivery of the software to CUSTOMER for acceptance testing unless the CUSTOMER
objects or refuses delivery in writing (electronic means acceptable) prior to
such time for reasons of errors or defects. MTS will promptly remedy any errors
or defects discovered during verification and testing.
31
Attachment A
Exhibit 1,
CUSTOMER Business
Requirements Document
OVERVIEW:
This document will provide CUSTOMER with a list of the development and
implementation items that need to be created by MTS for the deployment and
support of the CUSTOMER's launch of a wireless MVNO Service offering to their
Subscribers. This document reflects MTS's understanding of the CUSTOMER's
offering as of December 14, 2005. The final production definition will be
developed upon a joint process and service planning sessions with CUSTOMER and
MTS. If significant changes are made to the offering, then this plan, list of
deliverables and delivery dates may be adjusted to incorporate the final
offering definition.
This offering provides the CUSTOMER with all the functionalities of a fully
operating wireless carrier tailored to CUSTOMER's business model: branding,
ordering, provisioning, payment, billing, fulfillment, service, reporting, etc.
Launch will include the following to be filled out
Product:
Ordering Service:
1. Web site
2. Call Center Agent Tool
32
Risk Assessment: N/A
New Order Management: TBD
1. Order Tracking
2. CUSTOMER Communications
3. Provisioning
4. Fulfillment
5. Handset Returns and Replacements
CUSTOMER Self-Service:
1. Pre-activation support.
2. On line - Manage My Account
3. IVR
Billing:
1. Billing System
2. Electronic Billing
3. Payment processing
Customer Service and Sales Call Center:
1. Customer Care Tier 1
2. Customer Care Tier 2
33
Financials:
1. Subscriber Taxes
2. Wholesale Invoice Settlements
3. Treatment & Collections
4. Financial reporting
5. Reconciliation of the carriers' bills
Schedule and Timeframe:
High Level Milestones
34
ATTACHMENT B
PRICING
The following prices will be paid by CUSTOMER for the work as specified in the
Agreement and in these Attachments, subject to the Modification provided in
Section V below.
I. DEVELOPMENT & IMPLEMENTATION PRICING
o Payments for development and implementation work specified in
Attachment A will be calculated as set forth in Rate Schedule A
below.
Development and Implementation - Rate Schedule A
--------------------------------------------------------------------------
Development & Implementation One Time Fee
--------------------------------------------------------------------------
Customization and Implementation N/A
--------------------------------------------------------------------------
The One Time Fee will be paid as follows: half of the total amount will be
Invoiced following execution of this Agreement (or upon execution of the
work authorization in the case of the Detailed Design Phase II), and the
remaining portion will be Invoiced upon the one of the following events
(1) the Acceptance of the software release or (2) Date TBD.
35
II. ONGOING PROGRAM MANAGEMENT PRICING
o Payments for ongoing program management work specified in Attachment
A will commence on the targeted Launch Date of CUSTOMER's MVNO
service, and will be calculated as set forth in Rate Schedule B
Rate Schedule B Program Management
--------------------------------------------------------------------------
Item Monthly Fee
--------------------------------------------------------------------------
Ongoing Program Management $15,000
--------------------------------------------------------------------------
III. TRANSACTIONAL PRICING
o Transactional pricing components and rates are set forth in Rate
Schedules C through K below.
o Transactional pricing is payable by CUSTOMER for services performed
after commencement of the Service offering.
o For purposes of this Attachment B, "Devices" shall be defined herein
as any single mobile phone, PDA, converged device (e.g. Blackberry
and Treo with voice services and like devices with similar
capabilities.
o For any pricing tiers listed herein, the pricing associated with the
tier achieved in the applicable pricing period shall be applicable
to the total volume for such pricing period (on all Devices).
Rate Schedule C:
o The following fees will be charged for Order Processing activities
for each order processed through InPhonic's online ecommerce
activity.
o Each time MTS completes an order (defined as MTS's acknowledgement
of an accepted order that has been stored in MTS's system) there
will be a fee.
36
Order Processing Fee - Volume Tiered
Rate Schedule C
--------------------------------------
One Time Fee For Completed Order
Processing
--------------------------------------
$0.25
--------------------------------------
Rate Schedule D:
o A One - Time Subscriber Setup Fee (applicable to Completed
Activation defined as MTS's activation order to network provider and
subsequent confirmation of network activation by MTS to CUSTOMER)
will be charged per device as set forth below. This fee includes
porting or phone numbers, and tier 3 support associated manual
fallout as part of the activation of the service line on the carrier
network.
One-time Customer Setup Fee (Activation)
Rate Schedule D
--------------------------------------
Per Activation Set-up Fee
--------------------------------------
Per Device $1.50
--------------------------------------
37
Rate Schedule E:
o Inventory Management & Shipping Fees for all devices on a per-Device
basis with a completed ship date as confirmed by shipper to the
shipping party.
One-Time Inventory Management & Shipping Fees
Rate Schedule E
--------------------------------------------------------------------------
Inventory Management & Shipping
--------------------------------------------------------------------------
Processing, Handling for activated Devices shipped
by MTS to subscriber with appropriate collateral $8.00 per device
--------------------------------------------------------------------------
--------------------------------------------------------------------------
Inventory Management & 10 to 50 Devices, 51 or more Devices
Shipping inclusively
--------------------------------------------------------------------------
Per Device Per Device
--------------------------------------------------------------------------
Processing, Handling
un-activated Devices $3.50
shipped by MTS to a
retailer/distributor in To be determined by
quantities of 10-50 units the parties hereto
--------------------------------------------------------------------------
--------------------------------------------------------------------------
38
--------------------------------------------------------------------------
Shipping for all Use MTS rates or Use MTS rates or
devices (activated CUSTOMER* account, CUSTOMER* account,
and unactivated) and such rates are and such rates are
not included above. not included above.
--------------------------------------------------------------------------
* Use of CUSTOMER shipping account for UPS or Federal Express requires a work
authorization for coding of account numbers.
Rate Schedule F (Voice and Casual Data Services Only):
o A Monthly Subscriber Maintenance Fee will be charged on a per-Device
per-month basis for all Devices for which MTS provides Services with
volume tiers as set forth below. Device count will be totaled at the
end of the last day of the month. These rates are for voice handsets
with casual data capability, but does not include data only devices
(i.e. aircards) or converged data devices(i.e. Blackberrys, Treos).
o Subscriber management includes - Billing, Usage Mediation,
Rating/Guiding, Activity Transactions (account updates, plan
changes, ESN changes, suspend/restore/deact), Payment Processing(but
not the Processing fee), APIs to self-care transactions in IVR & on
website, Interface management, Financial Reporting, tier 3 support
o CUSTOMER will pay a base fee for all Devices as to which the fee may
be due.
Monthly Maintenance Fee
Regardless of the number of subscribers, the monthly maintenance fee shall
be $2.55 per Device. There will be a minimal monthly charge for Subscriber
Management in the amount of $45,000 which shall be equivalent to 17,647
units.
CUSTOMER shall reimburse MTS for the cost MTS incurs for direct internet
access purchased to provide the internet connectivity from the home agent
in Sprint's data center for wireless sessions for the Devices under this
Agreement; provided CUSTOMER has approval over the architecture for the
internet connectivity in order to control cost. To the extent non-CUSTOMER
Devices use the same internet facilities, the cost of the internet access
shall be allocated between CUSTOMER Devices and the other Devices.
39
The above fees include electronic billing services. CUSTOMER shall
reimburse MTS for the actual out of pocket costs MTS incurs in producing
and mailing paper bills to CUSTOMER's end users.
Rate Schedule G:
o CUSTOMER may request Add-On Options, and the following rates will
apply on a per-order basis:
Add-On Options
Rate Schedule G
--------------------------------------------------------------------------
Add-on Options Per Order
--------------------------------------------------------------------------
Rebate Processing $2.00
--------------------------------------------------------------------------
Rate Schedule H:
o Customer may make use of the MTS IVR on a per-minute rate based on
actual customer access.
40
IVR Usage
Rate Schedule H
--------------------------------------------------------------------------
Function Fee
--------------------------------------------------------------------------
IVR Access cost per minute $0.18
--------------------------------------------------------------------------
Rate Schedule I:
o Customer may make use of the MTS Customer Service center based on
per-call basis.
Customer Service
Rate Schedule I
NOTE: Customer Service will be provided at MTS cost for 90 days. After
this 90 day period, CUSTOMER will either assume the contract from MTS'
customer service provider, provide services via its own personnel or
purchase Customer Service services from another provider. Should Customer
assume the agreement from MTS' customer service provider, then CUSTOMER
will provide MTS with the right to purchase services from CUSTOMER at the
cost to CUSTOMER. Should CUSTOMER provide services via its own personnel
or purchase Customer Service services from another provider, CUSTOMER will
provide MTS the right to purchase services from CUSTOMER at the price and
upon terms and conditions to be negotiated between CUSTOMER and MTS and
evidenced by a separate agreement.
41
IV. PROFESSIONAL SERVICES PRICING FOR AUTHORIZED DEVELOPMENT WORK
o CUSTOMER may obtain Professional Services post-launch on an hourly
basis
o Professional Services Fees apply only to authorized development work
approved on a per-request basis that is additional to work outlined
in Attachment A (Statement of Work).
Professional Services Fee for Authorized Development Work
Rate Schedule J
-------------------------------------------------------
Professional Service Category Hourly Rate
-------------------------------------------------------
Technical $170
-------------------------------------------------------
Non-Technical Management $110
-------------------------------------------------------
Non-Technical Clerical $85
-------------------------------------------------------
Training $85
-------------------------------------------------------
There are four rates for authorized work, one for Technical and three for
Non-Technical. All reasonable travel and expenses are extra and charged to
CUSTOMER at cost, and such travel and expenses will be in accordance with
CUSTOMER's standard travel and expense guidelines.
o Technical work may include, but is not limited to, project
management, requirements definition, system design, programming,
testing, implementation and special requests, in accordance with the
Statement of Work in Attachment A (Statement of Work).
o Non-Technical Management work includes supervision of non-technical,
clerical workers, training development and delivery and Subject
Matter Expert Support from operations.
o Non-Technical Clerical work may include, but is not limited to, data
input, simple report processing, simple MIU investigation, service
order corrections, ▇▇▇▇ reprints, duplicate bills, clerical,
administrative, etc., in accordance with the Statement of Work in
Attachment A (Statement of Work).
o Training work includes the development and delivery of end user
training on the use and operation of MTS services and systems.
42
V. CONSULTING SERVICES
o CUSTOMER may obtain Consulting Services on a daily basis plus
expenses for the term described in section 1.5. All travel expenses
will be authorized in advance by CUSTOMER
Consulting Services
Rate Schedule J
--------------------------------------------------------------------------
Function Fee
--------------------------------------------------------------------------
Consulting cost per day $750
--------------------------------------------------------------------------
43
Attachment C
Work Authorization Process
MTS will perform work upon proper authorization by CUSTOMER. This Work
Authorization Process strictly applies to Professional Services and other work
that is outside the scope of the initial Development effort as defined in
Attachment A, Exhibit 1, what is included in the Ongoing Program Management
Services, or in the Transactional Services.
For work covered by the Ongoing Program Management and the Professional Services
work, as described in Attachment A (Statement of Work), this authorization will
be provided in the form of an email from one or more pre-identified email IDs.
MTS will establish a single point of contact to receive all work requests
hereunder. The process for obtaining and implementing a Work Authorization will
be as follows:
o CUSTOMER may at any time initiate a request for work hereunder (a "Work
Request") by communicating that Work Request to MTS in writing (including
electronic means).
o When MTS receives the original Work Request, MTS shall work with CUSTOMER
through the concept and feasibility phases to produce the initial time
and cost estimate;
o When CUSTOMER approves the initial estimate, MTS shall work through the
definition phase to produce the final time and cost estimate, which is a
committed price to CUSTOMER;
o When CUSTOMER approves the final estimate, MTS shall work through the
introduction phase to implement and introduce the deliverable;
o Change control to existing projects must be authorized by CUSTOMER prior
to MTS commencing work and such changes will be subject to CUSTOMER's
approval upon review of the time and cost estimate; and
o MTS will ▇▇▇▇ CUSTOMER in a manner to allow association with a project ID
for each Work Authorization. Such billing will commence with half the
amount added to the first Invoice after the release of the Work
Authorization and the remainder added to the first Invoice after CUSTOMER
Acceptance as defined in this section.
The Work Authorization Process will be documented in detail (including response
intervals) within 60 days of the signing of this Agreement.
Acceptance - Acceptance is based on section 5 in Attachment A SOW.
44