STI SERVICES AGREEMENT – CINGULAR POUND PROGRAM
EXHIBIT
10.11
STI
SERVICES AGREEMENT – CINGULAR POUND PROGRAM
This
Services Agreement, together with Exhibits A, B and C attached hereto
(collectively this “Agreement”),
dated
effective as of the 19th
day of
June, 2006 (the “Effective
Date”),
is
hereby entered into by and between Single Touch Interactive, Inc., a Nevada
corporation, located at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
(“STI”),
and
Boulevard Media Inc., a Colorado corporation, located at ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ (“BMI”).
Terms
with initial capital letters are defined terms which shall have the meanings
ascribed to them in the “Definitions” section below, or elsewhere in this
Agreement, as the case may be. STI and BMI may sometimes be referred to herein
collectively as the “Parties” or individually as a “Party”.
WHEREAS,
BMI is
in the business of providing IVR-based social networking services to landline,
mobile and web consumers;
WHEREAS,
STI is
in the business of developing, hosting and providing value-added mobile
telephone applications and services, including billing and content delivery
services. STI has the ability, through its platform (described in Exhibit “A”),
to provide delivery of, and billing services for, certain BMI voice services
and
mobile content, purchased by end users (the “Pound Program”);
WHEREAS,
BMI
wishes to market the Pound Program to End User, pursuant to a revenue share
arrangement with STI as further set forth in this Agreement below;
and
NOW,
THEREFORE,
in
consideration of the mutual promises and conditions hereinafter set forth,
the
receipt and sufficiency of which is hereby mutually acknowledged, IT IS AGREED
by and between the Parties as follows:
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1.
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DEFINITIONS
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“Affiliates”
means,
as to a Party, any present or future Parent of the party and any present or
future Subsidiary of the Party and/or its Parent, but only for so long as the
Parent remains the Parent of the party and the Subsidiary remains a Subsidiary
of the Party and/or its Parent.
“Agreement”
shall
mean this Agreement, and each of its Exhibits, as they exist on the Effective
Date or as may be modified in accordance with the Agreement. In the event of
an
inconsistency between or among any terms of the Agreement and its Exhibits,
the
provision(s) of the Agreement shall prevail.
“Bad
Debt” results
when the Carrier has determined that it cannot collect from the End User the
billed party amounts due on End User’s purchase of the BMI Service
Bundle.
“BMI
Catalog”
means
the file, or its equivalent, sent from BMI to STI containing Content, Content
name, identification numbers, licensing information, etc.
“BMI
Service Bundle”
shall
mean the combination of Chat Services and Content available for purchase by
End
Users through the Pound Program.
“Brand
Features”
shall
mean all trademarks, service marks, logos, trade dress and other distinctive
brand features of a party, including, if applicable, the look and feel of a
party’s principal consumer website.
“Carrier”
or
“Cingular”
means
a
provider of wireless telecommunication services to BMI, who provides a wireless
telecommunications network for the Pound Program, including text messaging
and
billing services in the Territory;
“Charge
back” means
credits provided by the Carrier to the End User account associated specifically
with End User purchase of the BMI Service Bundle that were initially charged
to
the End User’s cellular services ▇▇▇▇.
“Chat
Services”
means
the IVR-based services operated by BMI and offered to End Users who wish to
listen and/or talk live to other End Users.
“Content”
means
(1)
all audio sounds (Ringtones), (2) images (Wallpaper) (3) Video and (4) any
other
content and software or programs owned by BMI and licensed to STI pursuant
to
Section 2.5 hereunder, that the Parties mutually agree in writing to make
available for distribution to the End Users through the Pound
Program.
“Delivery”
or
“Delivered”
means
when Content is downloaded to a Handset by any Person using the Pound
Program.
“Effective
Date” shall
be
that date set forth in the header paragraph of this Agreement.
“End
User”
means a
customer of BMI who subscribes to a Carrier’s wireless service and uses the
Pound Program to purchase a Service Bundle.
“Gross
Revenue”
shall
mean the Retail Price billed by a Carrier and paid to STI as a result of an
End
User’s purchase of a BMI Service Bundle. Gross Revenue will include the Carrier
revenue share and shall not include any other amounts charged by STI and the
Carrier, including, but not limited to, amounts charged for taxes, Bad Debt,
refunds or assessments.
“Handset”
means
any wireless device, including, but not limited to, cell phones, wireless
personal digital assistants or “PDA's”, and any similar devices, that
incorporates certain technology and software and is capable of receiving
Content.
“Indemnified
Party” shall
have the meaning set forth in Section 9
“Indemnifying
Party”
shall
have the meaning set forth in Section 9
“In-Production
Standards” shall
mean the entire order process from initial call setup though to the completion
of the transaction with the read-back of information to the end user shall
not
exceed 180 seconds given a direct path of options and excluding any ringtone
selection time and the data exchanges with BMI, for 97% of calls on a monthly
basis. (i.e. the end user does not repeat multiple menus, select multiple
packages etc) and, secondly, the gross ▇▇▇▇▇▇▇▇ reported by STI, submitted
to
the carrier and subsequently billed to the end user shall be no less than 97%
of
the gross ▇▇▇▇▇▇▇▇ recognized and fulfilled by BMI.
“License(s)”
shall
mean those Licenses identified in subsection 5
“Licensee”
means
the
Party that is the recipient of a License in accordance with this
Agreement.
“Licensor”
means
the
Party that grants a License in accordance with this Agreement.
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“Licensed
Item(s)” shall
mean those items subject to a License as set forth in Sections 5 and
6.
“Notice”
shall
mean that written notice in the form set forth in, and delivered in the manner
required by, subsection 13.4.
“Parent”
means
any Person that owns or controls, directly or indirectly (i) the majority (more
than 50%) of the shares or other securities of the Party entitled to vote for
election of directors (or other managing authority) of the Party or (ii) if
such
Party does not have outstanding shares or securities, the majority (more than
50%) of the equity interest in such Party, but only for so long as such
ownership or control exists in (i) or (ii) above.
“Party”
or “Parties”
means
STI or BMI, or STI and BMI, respectively.
“Payment”
means
any
sums payable by one Party to the other Party hereunder.
“Person”
means,
except for STI or BMI, or any of their Affiliates, any other person, entity
or
enterprise, including, without limitation, any corporation, partnership,
joint-venture, limited liability BMI or any governmental agency, commission,
panel or department, whether local, state or federal.
“Retail
Price” means
the
price paid by an End User to purchase a BMI Service Bundle.
“Ringtones”
mean a
sound file that can be downloaded on a Handset and may be prompted to play
at
various times, including when a voice or text message is sent to the
Handset.
“SMS”
or
“Short
Message Service” shall
mean alphanumeric messages up to 160 characters in length sent to or from
Handsets of End Users and displayed on the Handset’s screen.
“SMPP”
or
“Simple
Message Peer to Peer”
means
the communication protocol used to deliver SMS to and from its End
Users.
“Short
Dial Code”
means a
number (with fewer digits than a 10-digit telephone number) used by an End
User
to simplify access to voice services or the sending of text
messages;
“Subsidiary”
of
a
Party shall mean any Person or other legal entity (a) the majority (more than
50%) of whose shares or other securities entitled to vote for election of
directors (or other managing authority) is now or hereafter owned or controlled
by such party either directly or indirectly, or (b) which does not have
outstanding shares or securities but the majority (more than 50%) of the equity
interest in which is now or hereafter owned or controlled by such party either
directly or indirectly, but only for so long as such ownership or control exists
in (a) or (b) above.
“Term”
means
the
term of this Agreement set forth in subsection 11.
“Territory”
means
the United States or as otherwise mutually agreed to in writing by both
Parties.
“Trademark
License” means
those Licenses identified in subsections 6.2.
“Wallpaper”
means
a
file that may be downloaded to a Handset and, when displayed, creates a graphic
image on the Handset’s monitor.
“WAP”
means
the wireless access protocol used to create web-sites to be accessed via a
wireless network by a Handset.
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2.
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BMI
RESPONSIBILITIES
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2.1 Provisioning
Fee Payable to STI.
BMI
shall pay to STI a total of ONE HUNDRED THOUSAND AND NO/100 US DOLLARS
($100,000.00) for the initial provisioning, set-up and integration of three
(3)
discrete Short Dial Codes on the Cingular network to support BMI’s application
of STI’s Pound Program (“Provisioning
Fee”).
The
Provisioning Fee will be payable in-full in readily available funds within
five
(5) business days following the Effective Date.
2.2 Refund.
Any one
of the following events shall be considered a material breach of the agreement
and therefore STI agrees that it shall refund to BMI a proportion of the amount
paid under Section 2.1 above to the number of Short Dial Codes impacted by
the
event within ten (10) days from BMI’s notice to STI:
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(a)
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In
the event BMI, in its sole discretion, does not accept the Pound
Program
pursuant to Section 3.5 below, as a viable product for use in a production
environment;
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(b)
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The
Pound Program fails to meets its In-Production Standards of performance;
or
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(c)
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If
any Short Code(s) registered by STI are cancelled by the Carrier
due to
any actions of STI.
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2.3 Chat
Services.
BMI
shall create, configure, host, maintain and support Chat Services for End Users,
including but not limited to interface processes with STI, reporting,
decrementing minute packages and member management.
2.4 Content.
BMI
shall
provide the BMI Catalog of Content to STI for its use in the Pound
Program.
2.5 Licensing.
BMI
shall
maintain all necessary and applicable licenses, fees and permissions necessary
for the continued use of Content provided to End-Users from the BMI Catalog.
2.6 Marketing.
BMI
shall use commercially reasonable efforts to promote and advertise the Pound
Program.
2.7 Customer
Service.
BMI
shall be solely responsible for all customer service related issues, and the
Parties acknowledge and agree that, except as expressly set forth in this
Agreement, while STI will support BMI’s customer service, STI shall have no
direct contact with any End User.
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3.
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STI
RESPONSIBILITIES
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3.1 Short
Dial Code.
STI, as
a licensee of Cingular, has licenses, permissions and rights to use three voice
Short Dial Code(s) (the “Licensed Short Dial Codes”). During the Term of this
Agreement, and pursuant to the terms and conditions contained herein, STI shall
permit and accommodate BMI’s continued use and enjoyment of the Licensed Short
Dial Codes.
3.2 Licensed
Short Dial Codes. In
the
event of termination of this Agreement, and should STI continue to be the
licensee of the Short Dial Codes, STI will not allow the use of the Licensed
Short Dial Codes by any other Person operating within BMI’s market space for a
period of three (3) years from the effective date of
termination.
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3.3 Continuing
Business Accommodation.
In the
event that STI ceases to do business and may no longer provide the services
contemplated during the term of this Agreement, STI will use commercially
reasonable efforts to attempt to accommodate a continuing business relationship
by and between BMI and Cingular. The parties agree that Cingular is a service
provider as it relates to this Agreement and not under the control, supervision
or direction of STI.
3.4 Pound
program. Subject
to the terms in this Agreement, STI agrees to create, configure, host and
maintain an instance of the Pound Program as described in Exhibit “A” (the
“Services”).
3.5 Testing
and Acceptance.
STI
shall deliver the Services to BMI for testing and acceptance prior to commercial
launch by BMI. The testing period will begin upon receipt by BMI of the Services
from STI, and will last for a period of up to twenty (20) business days
thereafter, during which time BMI shall conduct random testing of all Short
Dial
Codes to check: set-up of new memberships and packages, delivery of Content,
subsequent purchases by the same mobile subscriber and associated delivery
of
content, billing descriptors appearing on the customer ▇▇▇▇, customer service
inquiry processes, error handling and timelines of response messages, and test
keywords and the subscription flow using random carrier phones. At all times
during and subsequent to the testing period, STI will use commercially
reasonable efforts to resolve any and all non-conformities, provided, however,
STI shall use commercially reasonable efforts to resolve any material
non-conformities within five (5) business days of BMI’s notification to STI of
the same. In addition, during the testing and acceptance period, STI shall
provide to BMI regular updates as to the testing performed on behalf of STI
by
any third party mobile carriers and aggregators.
3.6 Availability.
The
Services will be hosted by STI, or any Person selected by STI and approved
by
BMI (approval not to be unreasonably withheld), in a manner so that it is
available continuously (24 hours a day, 7 days a week) except for instances
when
the program must be removed for emergency fixes, maintenance or updates, in
which case BMI will be notified, when commercially reasonable to do so. STI
will
provide BMI with an estimate regarding the anticipated time to be repaired
and
returned to service. Any system administration and maintenance shall occur
between the hours of 2pm and 4 pm Pacific Standard Time with no less than
twenty-four (24) hours prior notice. STI will use its commercially reasonable
efforts to minimize the frequency and duration of instances that Services is
not
available.
3.7 Reports.
For the
first ninety days of this Agreement, STI shall provide BMI with weekly reports,
in the format described in Exhibit “B”. Thereafter, STI shall provide real-time
web access to transaction databases.
3.8 Taxes.
STI
shall ensure that both STI and the Carrier collects, remits and are responsible
for all applicable local, state, and federal taxes, access fees and any other
FCC and PUC fees and charges. Each Party is responsible for all their other
taxes, charges and governmental fees with respect to the sale of Digital Content
that may apply, including all taxes based on the net income, franchise, property
and/or net worth of Provider, as well as the Washington business and occupation
(“B&O”) tax or other taxes similar to the B&O tax.
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4.
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PAYMENT
TERMS
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4.1 Amount
of Remittance to BMI for the BMI Service Bundle.
STI
shall, within one hundred and five (105) days from the date on which the BMI
Service Bundle was purchased by the End User, remit to BMI sixty percent (60%)
of Gross Revenue, minus twenty-two and one-half cents (USD$.225) per End User
purchase transaction of a BMI Service Bundle. For example, for a Service Bundle
with a Gross Revenue of Five US Dollars (USD$5.00), BMI shall receive Two US
Dollars and Seventy-seven and one-half cents (USD$2.775), calculated as Five
US
Dollars (USD$5.00) times sixty percent (60%) minus twenty-two and one-half
cents
(USD$.225).
4.2 End
User fees for the Services.
BMI
shall have sole discretion in determining the Retail Price of its Service
Bundle, provided, however, in no event shall any Service Bundle be priced less
than Two US Dollars and Ninety-five cents (USD$2.95) or higher than Nineteen
US
Dollars and Ninety-five cents (USD$19.95).
4.3 Telephony
and Carrier Charges.
BMI
shall be responsible for the following charges related to the BMI Service Bundle
purchases made by End Users:
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(a)
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reimbursement
to STI for any refunds, credits, Bad Debt or other Charge backs made
by a
Carrier against STI. Any refunds, credits, Bad Debt or other Charge
backs
must be specifically identified by Cingular as an end-user mobile
identification number (MIN) that acquired BMI’s services through the Pound
Program; and
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(b)
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STI
will ▇▇▇▇ BMI and BMI will pay for these charges within thirty days
of
BMI’s receipt and verification.
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BMI
shall
not accept any other charges of any kind that are not listed in Section 4.3
or
Section 2.1.
4.4 Currency.
All
fees,
remittance, and other currency amounts set forth herein shall be denoted in,
and
calculated using, US Dollars.
4.5 Late
Payments.
All
payments of amounts due to a Party which are not paid when due shall accrue
late
payment charges on the unpaid amount in the amount of one and one-half percent
(1½%) per month or the maximum amount allowable under applicable law, whichever
is less, from the date due until the date paid in full, including any accrued
late payment charges
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5.
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LICENSES
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5.1 BMI
License of BMI Brand Features to STI.
Subject
to the terms and conditions of this Agreement, BMI (the “Licensor”)
hereby
grants to STI (the “Licensee”)
for
the Term of this Agreement a non-exclusive, non-transferable license, in the
Territory, to reproduce, distribute and publicly display BMI Brand Features
in
connection with the marketing, distribution and presentation of the Services
in
accordance with this Agreement and the Branding Restrictions set forth in
Section 6 below.
5.2 BMI
License of Content to STI.
Subject
to the terms and conditions of this Agreement, Licensor hereby grants to
Licensee, for the Term of this Agreement, a non-exclusive, non-transferable,
royalty-free license, in the Territory, to use BMI’s Catalog for the purpose of
fulfilling End-User requirements of the BMI Service Bundle.
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5.4 Ownership.
This
Agreement does not in any way convey ownership of any Brand Feature, or any
part
thereof, to the other Party.
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6.
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BRANDING
RESTRICTIONS.
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6.1 Branding
Restrictions.
During
the Term of this Agreement, all marketing, sale, distribution or other use
of
the Services by BMI shall be branded solely with the BMI Brand Features, subject
only to the branding requirements of wireless carriers or other distribution
channels offering the Services (to the extent approved by BMI in advance in
writing). All uses of the BMI Brand Features shall be subject to the branding
policies provided by BMI or its licensors; any deviations thereof shall be
subject to BMI’s prior written consent.
6.2 Use
of Trademark Licenses.
Each
Party’s use of the Trademark License granted to it hereunder shall be in
accordance with applicable trademark law, as well as Licensor’s policies
regarding advertising and trademark usage as set forth in Licensor’s marketing
or advertising guidelines, or as otherwise designated by the Licensor in writing
from time to time during the Term of the Agreement. Except as provided in this
Section or as subsequently mutually agreed in writing, neither Party shall
associate any licensed item that are subject to the other Party’s Trademark
License except for the express and limited purposes identified in this
Agreement.
6.3 Trademark
Obligations.
The
Licensee, pursuant to its Trademark License, agrees that whenever a Licensed
Item is used in advertising or in any other manner, such use will, to the degree
designated by the Licensor and allowed by law, include the appropriate “TM”,
“SM” or R inside a circle, and the Licensee shall acknowledge that such Licensed
Item is owned by the Licensor. The Licensee agrees that it shall not do or
cause
to be done any act or anything contesting or in any way impairing or reducing
the Licensor’s right, title, and interest in the Licensed Item.
6.4 Quality. The
Licensee shall not use any Licensed Item in any manner that would injure the
reputation of the Licensor. In the event that the Licensor should notify the
Licensee in writing that a Licensed Item does not conform to the standards
set
by the Licensor, the Licensee shall have thirty (30) days to bring such use
into
conformance, and provide Licensor with a specimen of such conforming use, or
cease usage of the Licensed Item.
6.5 Infringement
Proceedings and Trademark Registration.
The
Licensor shall have the sole right and discretion to bring legal or
administrative proceedings to enforce its trademark rights hereunder, including
actions for trademark infringement or unfair competition proceedings involving
any Licensed Item. The Licensee shall not, during or after the Term of this
Agreement, register or attempt to register any Licensed Item in any country
or
jurisdiction.
6.6 Substitution
of Trademark.
The
Licensor reserves the right to substitute other marks for any Licensed Item
upon
notice to the Licensee, and in such event the Licensee agrees to immediately
discontinue use of the selected Licensed Item and begin use of the substitute
▇▇▇▇, which thereafter shall be considered a Licensed Item.
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7.
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WARRANTY
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7.1 General.
Each
party represents and warrants that: (i) it has the full legal right and power
to
enter into and fully perform this Agreement and to make the commitments it
makes
herein, and (ii) as of the Effective Date there are no other agreements with
any
other party in conflict herewith.
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7.2 Warranty
of Title.
Each
party represents and warrants that, to the best of its knowledge, it has the
right, title and interest in and to its intellectual property rights as
necessary to grant all the rights to the other party as provided under this
Agreement. Each party represents and warrants to its knowledge that it has
obtained all the necessary and appropriate written assignment, clearance,
approval, consent, release and/or license from any person or entity (including
any third party independent contractor) rendering services in connection with
its intellectual property rights licensed under this Agreement, and, with
respect to BMI, any release related to any rights of privacy or publicity,
as
may be necessary for BMI to enter into this Agreement.
7.3 Data.
Each
party warrants to the other that such warranting party will not publish,
distribute or otherwise provide to the other party for use hereunder any data,
information, materials, Brand Features or APIs, or other intellectual property
that: (i) infringes on any third party’s copyright, patent, trademark, trade
secret or other proprietary rights; (ii) violates any law, statute, ordinance
or
regulation, including without limitation the laws and regulations governing
export control; (iii) is defamatory or trade libelous; or (iv) contains viruses,
spyware, Trojan horses, worms, time bombs, or other similar harmful or
deleterious programming routines. The above warranty specifically excludes
all
data published, distributed or otherwise provided by Wireless end-users.
7.4 WARRANTIES
EXCLUDED.
EXCEPT
AS OTHERWISE SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT
TO ANY ITEMS OR SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION,
ANY
IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF
PERFORMANCE AND ANY IMPLIED WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING
THE
GENERALITY OF THE FOREGOING, EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT,
EACH PARTY ACKNOWLEDGES THAT THE WEB SITES, SERVERS AND OTHER HARDWARE, SOFTWARE
AND ANY OTHER ITEMS USED OR PROVIDED IN CONNECTION WITH HOSTING SUCH WEB SITES
OR PERFORMANCE OF ANY OF THE SERVICES HEREUNDER ARE PROVIDED "AS IS" AND THAT,
EXCEPT AS OTHERWISE PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY THAT
THE
MATERIALS, PRODUCTS, OR SERVICES IT PROVIDES HEREUNDER WILL BE FREE FROM BUGS,
FAULTS, DEFECTS OR ERRORS OR THAT ACCESS TO ANY OF THE SERVICES WILL BE
UNINTERRUPTED.
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8.
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PROPRIETARY
RIGHTS
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8.1 Pound
Program –
Notwithstanding section 8.2 below, STI shall retain exclusive, proprietary
ownership rights in its systems and processes that make up the Pound Program,
and does not, by means of this Agreement or otherwise, transfer to BMI any
right
of ownership in or to the same. BMI and their respective agents or affiliates
shall not seek any copyright or trademark registration in or to the Pound
Program
8.2 Chat
Services, Content and BMI Service Bundle
- BMI
retains exclusive, proprietary ownership rights in and to its systems and
processes for the provision of Chat Services, Content and the BMI Service
Bundle, and where registered by BMI, the Short Dial Codes used by End Users
to
access the Pound Program hereunder, and does not, by means of this Agreement
or
otherwise, transfer to STI any right of ownership in or to the
same.
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8.3 Intellectual
Property–
each
Party acknowledges that it does not own and has no ownership claim in or to
any
trademarks, trade names, copyright or other intellectual property of the other
Party or its affiliates, (collectively the “Intellectual Property”), and that
use by a Party of any Intellectual Property of the other Party, without the
express written consent of the other Party, will constitute a material breach
of
this Agreement. In addition, the Parties agree to take no action, either during
or after the term of this Agreement, that is inconsistent with, or could
directly or indirectly impair or tend to impair, any of the other Party’s or its
affiliates’ right, title or interest in or to its Intellectual Property, and a
Party shall immediately notify the other Party if it knows or becomes aware
of
any infringing use of the other Party’s Intellectual Property by a third
party.
8.4 End-User
Information.
Any and
all
information obtained from any End User purchasing a Service Bundle through
the
Pound Program is the property of BMI, and STI agrees to maintain the
confidentiality of that information pursuant to the requirements of its Privacy
Policy, any Carrier requirements and this Agreement. Any End User information
collected by STI shall be passed to BMI and shall not be used by STI for any
purpose but the effective application of the Pound Program on behalf of BMI
and
BMI’s End Users. Further, STI shall not distribute, sell or provide a third
party, other than BMI and the Carrier, End User information.
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9.
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INDEMNIFICATION
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9.1Each
Party (the “Indemnifying Party”) shall, at its expense and at no cost to the
other Party, defend, indemnify, and hold harmless the other Party and its
Affiliates and each of their officers, directors, employees and successors
and
assigns (the “Indemnified Parties”) from and against any damages, losses,
penalties, liabilities or expenses of any nature (including reasonable
attorneys’ fees) resulting from or in any way related to: (i) any breach by
the Indemnifying Party of the Licenses granted by the Indemnified Parties,
(ii) any breach of any covenant, warranty or representation of the
Indemnifying Party under this Agreement, (iii) any claim or action arising
from any negligent act or omission of the Indemnifying Party in performing
its
obligations under the Agreement, and (iv) any claim or allegation that any
information, material or content provided by the Indemnifying Party for use
in
performing its obligations hereunder infringes, misappropriates or otherwise
violates any trademark, patent, copyright or other intellectual property right
of any Person (collectively the “Claims”).
9.2The
Indemnified Party will promptly provide the Indemnifying Party with Notice
of
any actual or potential Claim, except that any delay in such Notice shall not
relieve the Indemnifying Party of its obligations under this Section, except
to
the extent that the delay caused any prejudice to the Indemnifying Party. The
Indemnifying Party may settle, at its sole discretion and own expense, any
such
Claim against an Indemnified Party. Any disposition or settlement that imposes
any liability on or affects the rights of the Indemnified Party will require
the
Indemnified Party’s prior written consent, which will not be unreasonably
withheld or delayed.
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10.
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LIABILITY
LIMITATIONS
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10.1 WITH
THE
EXCEPTION OF ANY BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER,
OR ANY MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY
RIGHTS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO,
FRUSTRATION OF ECONOMIC OR BUSINESS EXPECTATIONS, LOSS OF PROFITS, LOSS OF
ANTICIPATED REVENUE, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCT(S), FACILITIES
OR SERVICES, DOWNTIME COST, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED IN
WARRANTY, CONTRACT, NEGLIGENCE, STRICT TORT, PRODUCTS LIABILITY OR OTHERWISE,
EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE
PARTIES EXPRESSLY AGREE THAT THE LIMITATIONS ON DAMAGES SET FORTH IN THIS
AGREEMENT ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION
FOR THE PARTIES’ RESPECTIVE RIGHTS AND OBLIGATIONS SET FORTH IN THIS AGREEMENT.
IN ADDITION, THE PARTIES AGREE THE FOREGOING IN NO WAY LIMITS THEIR RESPECTIVE
INDEMNITY OBLIGATIONS HEREUNDER.
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11.
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TERM
AND TERMINATION
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11.1 Initial
Term and Renewal.
The term
of this Agreement shall commence on the Effective Date and shall, unless earlier
terminated as provided herein or as mutually agreed to by the Parties, continue
for one (1) year (the “Term”). As of the last day of the Term, unless earlier
terminated by delivery of Notice of termination from one party to the other
prior to the expiration of the Term, or otherwise agreed to by the Parties
in
writing, the Term of this Agreement shall be automatically extended for
additional six (6) month renewal periods, provided, however, either Party may
terminate this Agreement during a renewal period at any time, and for any
reason, by providing the other Party with no less than two (2) months written
notice thereof.
11.2 Termination
for Cause.
Each
Party shall have the right to terminate this Agreement for cause upon written
notice to the other Party if the other Party materially breaches any provision
of this Agreement, and either (1) does not cure such breach within thirty
(30) days following written notice thereof from the non-breaching Party, or
(2)
if curable but not capable of cure within thirty (30) days, the breaching Party
has not initiated and/or diligently pursued actions to correct the breach as
soon as reasonably practicable, or (3) if the other Party ceases business
operations, becomes insolvent, or is subject to any bankruptcy or other similar
legal process or proceeding. Material breaches of this Agreement for which
no
cure period is required shall include, but not be limited to, (1) the failure
or
refusal to grant the Licenses set forth in Section 3 herein, and (2) any failure
to pay any amounts when due three (3) or more times in a calendar year. In
the
event either Party fails to pay any amounts when due three (3) or more times
in
a calendar year, any and all rights to terminate the Agreement shall immediately
revert to the Party that is not in default. A Party asserting its right to
terminate this Agreement pursuant to the foregoing may do so in addition
to, or in combination with, any other rights available to it under law, equity,
or this Agreement, and shall not be liable to the other party for any
termination charges, including, without limitation, damages for goodwill,
investments made and the like.
10
11.3 Effects
of Termination.
Upon any
termination or expiration of this Agreement: (i) all rights and Licenses
granted under this Agreement shall terminate, except for those which survive
termination as expressly provided in this Agreement, (ii) STI shall
immediately remove the Service Bundle from the Pound Program, and shall cease
permitting End Users to purchase and download the Service Bundle, (iii) BMI
shall cease providing STI with access to the Service Bundle, (iv) STI shall
cease distributing the Service Bundle in any manner to any End User or any
other
Person, (v) BMI shall fulfill End Users obligation from any BMI Service Bundles
purchased, and (vi) the Parties shall promptly account for and submit all
respective Payments due to the other Party.
11.4 Survival.
The
following provisions shall survive any termination or expiration of this
Agreement, in addition to those terms that expressly survive: Section 2
(Refunds), Section 4 (Payment Terms) for all amounts due prior to the
termination or upon expiration of this Agreement, and
Sections 6 (Branding Restrictions), 9 (Indemnification),
10(Liability Limitations), and 12 (Confidentiality).
11.5 Termination
for Material Adverse Change.
If,
during the Term of this Agreement, either Party determines that business
conditions have changed, or are likely to change, to such an extent that
continuation of this Agreement would have a material adverse effect on such
Party, or any of its affiliates, then that affected Party shall provide Notice
to the other Party disclosing the material adverse change. Once Notice has
been
provided, the Parties agree to meet in good faith to modify the terms of this
Agreement in an attempt to mitigate or eliminate such material adverse effect.
If the parties cannot agree to any such modifications within thirty (30) days
of
such Notice, then the affected Party shall be entitled to terminate this
Agreement without liability by providing the other Party with thirty (30) days
prior written notice thereof.
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12.
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CONFIDENTIALITY
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12.1 Confidentiality.
The
parties agree to be bound by the terms of the Non-Disclosure Agreement entered
into between the parties and attached as hereto as Exhibit “C.”
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13.
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GENERAL
PROVISIONS
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13.1 Costs
and Expenses.
Unless
otherwise specified herein, each Party agrees that it is solely responsible
for
all costs and expenses incurred by such Party in connection with the performance
of its obligations set forth in this Agreement.
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13.2 Relationship
of Parties.
The
Parties to this Agreement are independent of one another and this Agreement
shall not establish any relationship of partnership, joint venture, employment,
franchise, or agency between the Parties. Neither Party shall have the power
to
bind the other Party or incur obligations on the other Party’s behalf without
the other Party’s prior written consent.
13.3 Notices.
All
notices, consents, waivers, and other communications intended to have legal
effect under this Agreement (“Notices”)
must be
in writing, must be delivered to the other Party at the address set forth in
the
signature block below by personal delivery, certified mail (postage pre-paid),
a
nationally recognized overnight courier, or via facsimile with verified receipt
of transmission, and shall be effective upon receipt (or when delivery is
refused). Each Party may change its address for receipt of notices by giving
written notice of the new address to the other party.
13.4 Governing
Law and Venue. This
Agreement shall be solely and exclusively governed, construed and enforced
in
accordance with the laws of the State of Nevada, USA, without reference to
conflict of laws principles. Any suit, action or proceeding arising from or
relating to this Agreement must be brought in either a state or federal court
located in, or for which jurisdiction and venue would be appropriate for the
geographical area including, Carson City, Nevada, USA, and each Party
irrevocably consents to the jurisdiction and venue of any such court in any
such
suit, action or proceeding.
13.5Attorneys’
Fees.
In the
event that any action or proceeding is brought in connection with this
Agreement, then, following the final judgment for such action or proceeding,
the
prevailing Party shall be entitled to recover its costs and reasonable
attorneys’ fees.
13.6 Non-Solicitation.
The
parties agree to be bound by the terms of non-solicitation as set forth in
the
Non-Disclosure Agreement entered into between the parties and attached as hereto
as Exhibit C
13.7 Waiver.
Neither
a course of dealing nor the failure of either Party to require performance
by
the other Party of any provision of this Agreement shall affect the full right
of such Party to require such performance at any time thereafter; nor shall
the
waiver by either Party of a breach of any provision of this Agreement be taken
or held to be a waiver of the provision itself.
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13.8 Assignment.
Neither
this Agreement, nor any rights, obligations, or other interests of a Party
may
be assigned by a Party without the prior written consent of the other Party
(not
to be unreasonably withheld or delayed), and any purported assignment of same
without such consent shall be void. STI may subcontract to third parties its
obligations under this Agreement, provided any such third party agrees to terms
and conditions no less restrictive than those set forth herein, and may, upon
written notice to BMI, assign its right to receive Payment to any other Person.
13.9 Severability.
If any
provision of this Agreement is unenforceable or invalid under any applicable
law
or is so held by an applicable court decision, such unenforceability or
invalidity shall not render this Agreement unenforceable or invalid as a whole,
and such provision shall be changed and interpreted so as to best accomplish
the
objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions; provided, however that if the
Parties are unable to so change the provision, then the affected Party may
terminate this Agreement upon thirty (30) days notice.
13.10 Force
Majeure.
Each
party will be excused from performance hereunder (except for payment obligations
that are due and payable upon the date of the happening of any force majeure
event) for any period and to the extent that it is prevented from such
performance, in whole or in part, as a result of delays caused by the other
party or an act of God, natural disaster, war, civil disturbance, court order,
labor disputes, third-party non-performance, or other cause beyond its
reasonable control and which it could not have prevented by reasonable
precautions, including failures or fluctuations in electric power or
telecommunications equipment, and such non-performance will not be a default
or
a ground for termination hereof.
13.11 Entire
Agreement; Amendment; Construction.
This
Agreement, together with all Exhibits attached hereto (which are hereby
incorporated by reference), completely and exclusively states the agreement
of
the Parties regarding their subject matter. This Agreement supersedes, and
its
terms govern, all prior or contemporaneous understandings, term sheets,
memoranda of understanding, agreements, representations, summaries, proposals,
or other communications between the parties, oral or written, regarding such
subject matter. In the event of a conflict between the terms in the body of
this
Agreement and the terms in one or more of the Exhibits attached hereto, the
terms of this Agreement shall control. This Agreement may be amended only by
a
written document signed by both Parties. The Section headings appearing in
this
Agreement are inserted only as a matter of convenience and in no way define,
limit, construe, or describe the scope or extent of such section or in any
way
affect this Agreement.
13.12 No
Third Party Rights.
Except
as otherwise expressly provided in this Agreement, nothing in this Agreement
shall be enforceable by any Person other than BMI and STI, and no third party
beneficiary rights are conferred on any such third party. Notwithstanding
that any term of this Agreement may be or may become enforceable by a Person
who
is not a party to this Agreement, the terms and conditions of this Agreement
may
be modified or amended, or this Agreement may be suspended, cancelled, rescinded
or terminated by the Parties as provided hereinabove without the consent of
any
such third party.
13
13.13 Counterparts
and Facsimile Signatures.
This
Agreement may be executed and delivered in counterparts all of which taken
together shall constitute one single agreement between the Parties. A facsimile
transmission of the executed signature page of this Agreement shall constitute
due and proper execution and delivery of this Agreement.
13.14 Audit. Each
Party shall maintain complete and accurate records of all accounts pertaining
to
performance of this Agreement, in accordance with generally accepted accounting
principles and in such a manner as may be regularly audited. An audit firm
engaged by a Party, at such Party’s sole expense, has the right to review and
audit those records and statements, including, without limitation, any and
all
invoices, vouchers, checks, or other documents used by the other Party in
preparing any statement, Payment, or records or reports of any nature generated
regarding a Party’s performance under this Agreement, at any reasonable time
during the Term of this Agreement and for a period of one (1) year following
the
expiration or termination of this Agreement or until all disputes between STI
and BMI are resolved, whichever is later; provided, however, such audit firm
shall be required to execute an appropriate multi-party non-disclosure agreement
with the audited Party and shall have no right to disclose any third party
proprietary or confidential information obtained through the audit.
[SIGNATURE
BLOCK]
In
Witness Whereof,
the
Parties have executed this Agreement as of the Effective Date.
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Boulevard
Media, Inc. (“BMI”)
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Single
Touch Interactive, Inc. (“STI”)
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By:
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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|
Name:
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Title:
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Secretary
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Title:
|
Founder
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| Address For Notice: | Address For Notice: | |||
| Boulevard Media, Inc. | Single Touch Interactive, Inc. | |||
| ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇ | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ | |||
| ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ | ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||
| Facsimile No.: | Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇ | |||
| Telephone No.: | Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇ | |||
14
EXHIBIT
“A” - POUND PROGRAM FEATURES
STI’s
Pound Program will include the following:
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1.
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Provisioning
of Short Dial Codes.
The capability to provision voice Short Dial Codes on a carriers
network
or where requested, to provision voice Short Dial Codes on the carrier’s
network. A voice Short Dial Code (e.g. #TALK - #8255) is a shortened
number for callers to dial on participating Carrier’s networks simplifying
the dialing process for End Users to access the Pound
Program.
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2.
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Front-End
IVR System.
The capability to provide a front-end IVR platform to initially accept
calls from end-users (and directed by the carrier to STI based on
the
Short Dial Code). The STI IVR will provide initial screening processes,
greetings, prompts and menu selections to the End User allowing the
discovery and selection of Service Bundles, including the acceptance
of
charges for any Service Bundle purchased by an End User.
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3.
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Redirection
to BMI. The
STI system will be capable of redirecting the calls to the BMI IVR
on
completion of these activities. Included in STI’s screens will be the
verification of the MIN as a billable number and test for compliance
with
velocity limits set by the BMI and the
carrier.
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4.
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Content
Management.
Including the capability to receive Content from BMI’s Catalog, on-the-fly
conversion of Content to a format appropriate for the End Users Handset,
and integration with the voice, billing and delivery infrastructures.
If
needed STI will store the Content from BMI’s
Catalog.
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5.
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Delivery
of Content to the End Users Handset.
The Pound Program tracks each End User, selected Content, Carrier
and
Handset type and ensures the Content is delivered in an appropriate
manner
for that Carrier and Handset type. Where the End Users Handset is
capable,
STI will provide a one-button press to reconnect to the Chat Service.
STI
will use commercially reasonable efforts to initiate the process
for an
End User to download Content selected by the End User, within thirty
(30)
minutes after that selection is made by the End
User.
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6.
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Billing
for the BMI Service Bundle.
STI will provide all billing records required of the Carrier, at
least
weekly, to facilitate the addition by the Carrier of the BMI Service
Bundle charges to the End User’s ▇▇▇▇▇▇▇ ▇▇▇▇ and will maintain the
billing integration and reconciliation processes with the
Carrier.
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7.
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Activity
Reporting.
At the outset of this service agreement and for the first ninety
days, STI
will provide weekly reporting to BMI. Thereafter, reporting will
be
provided in real time via the Web for various sales and transactional
elements with user defined timeframes.
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8.
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Telecommunications
Infrastructure.
Telecommunications infrastructure to accommodate End Users calling
to
access the Pound Program also includes any hardware, software and
Internet
connectivity required to provide the Pound
Program.
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9.
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Pound
Program Costs.
STI shall be responsible for all costs incurred in the design,
development, creation, installation and maintenance of the Pound
Program,
provided, however, BMI agrees that, during the Term of this Agreement,
there will be no charge to STI by BMI, or any Affiliate, for Content
or
integration with BMI, including but not limited to the BMI
Catalog.
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15
EXHIBIT
“B” – EXAMPLE REPORT
Data
Fields to be reported on or made available in the real-time reporting system
will include the following for each End-User Transaction
Mobile
number
Call
Date
Call
Start Time
Disconnect
Time
Duration
Maximum
Time Purchased
BMI
Termination Number Used
Pound
Program Number
Charged
Amount
Content
Provided
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