MSN Mobile Services Reseller Agreement Agreement Number:
- Final Execution Copy
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MSN
Mobile Services Reseller Agreement
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Agreement
Number:
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(Microsoft
will complete)
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This MSN
Mobile Services Reseller Agreement (“Agreement”) is between the entities
identified below.
The
“Effective Date” of this Agreement will be the date Microsoft signs the
Agreement after execution by Company as specified below. In this
Agreement, “Company” means IXI Mobile, Inc.; and “Microsoft” means Microsoft
Corporation. Microsoft and Company are sometimes referred to
individually as a “Party” and collectively as the “Parties” in this
Agreement. Each party agrees to notify the other in accordance with
Section 15.1 if the information below changes during the Term.
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“Company”:
IXI
Mobile, Inc
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“Microsoft”:
Microsoft
Corporation
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Street
Address:
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Street
Address:
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇
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▇▇▇▇
▇▇▇ ▇▇▇▇▇ / ▇▇▇▇▇▇▇▇:
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▇▇▇▇
and State:
Redmond,
Washington
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ZIP
Code:
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ZIP
Code:
98052
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Contact
Name:
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Microsoft
Account Manager Name, Location:
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Phone
Number:
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Phone
Number:
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Fax
Number:
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Fax
Number:
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E-Mail
Address:
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E-Mail
Address:
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For
the Attention of:
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For
the Attention of:
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Accounts
Payable Contact Name, Phone Number and Email Address:
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NOTICES
Information (if different from above):
Company
Name, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ , ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ / ▇▇▇▇▇▇▇▇, ZIP
Code:
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All
NOTICES must also be sent to:
Microsoft
Corporation
Law
and Corporate Affairs
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Fax
Number:
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Fax
Number:
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For
the Attention of:
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For
the Attention of:
LCA
– PDM - Consumer / Corporate
Attorney
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This
Agreement consists of this cover page, the enclosed Terms and Conditions,
Exhibits, and any addenda or amendments entered into in writing under this
Agreement, as well as any Service Schedules executed by the Parties at any time
hereunder. These documents form the entire agreement between Company
and and supersede all prior and contemporaneous communications, agreements or
contracts, whether oral or written, concerning the subject matter hereof, and no
agreements or understandings varying or extending this Agreement, shall be
binding upon any Party hereto unless agreed to in writing and signed by a duly
authorized officer or representative thereof.
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Microsoft
Corporation
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By
(sign):
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By
(sign):
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Name
(print):
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Name
(print):
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Title:
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Title:
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Date:
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September 27, 2005
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Date:
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September 27,
2005
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TERMS AND
CONDITIONS
1. Background and
Purpose. Microsoft develops,
operates and/or markets Internet-based information and communications services
accessible to a significant installed base of users via Mobile Devices and the
World Wide Web, and Company provides mobile content and publishing services to
Carriers in the Territory. The purpose of this Agreement is to appoint Company
as a non-exclusive reseller in the Territory, and to establish the process for
Company to provide MSN Mobile Services to Subscribers via Carriers. This Agreement is non-exclusive and the
Parties will be free to enter into agreements with any Third Party(ies) covering
cooperation on services, technologies and/or products within the scope of this
Agreement.
2. Definitions.
The terms set forth below will have the following meanings:
“Acceptance” or
“Accepted” shall have the
meaning set forth in the Testing Process for the applicable MSN Mobile
Service.
“Affiliate”
shall mean a legal entity
that (a) owns and controls a Party, directly or indirectly, or (b) is owned
and controlled, directly or indirectly, by a Party, or (c) is directly or
indirectly under common ownership and control with a Party.
“Aggregate
Information” shall mean
usage data or other information about multiple Subscribers on an aggregate basis
that does not contain Personally Identifiable Information.
“Carrier” shall mean a mobile telecommunications
network operator and/or provider of mobile telecommunications services providing
services within the Territory and listed in Exhibit A
hereto.
“Carrier
Agreement” shall mean an
agreement between Company and a Carrier necessary for the provision of the
Services and for generating revenue including without limitation agreements
relating to: (i) the termination and origination of Services by the Carrier; and
(ii) billing and collection of fees from Subscribers using the MSN Mobile
Services.
“Carrier Network(s)”
shall mean the
telecommunications switching equipment, cell site transceiver equipment and
other equipment and systems which are owned, operated, leased or managed by the
Carrier (including its relevant Affiliates) for the provision of the MSN
Mobile Services in any part of the Territory.
“Carrier User Data”
shall mean all data,
whether Aggregate Information or Personally Identifiable Information, generated
or collected by Carrier in connection with a user’s registration and use of the
Company Services.
“Company Marks”
shall mean those trademarks
of Company which are set forth on Exhibit D hereto, and such other trademarks,
if any, that Company may from time to time identify for Microsoft and which the
Parties shall agree, in writing, as being “Company Marks” within the meaning of
this Agreement.
“Company
Services” means the
wireless network services offered by Company or a Carrier, including but not
limited to the Company or Carrier network and any Company or Carrier solutions
developed by or for Company or Carrier, that enable Subscribers to access one or
more MSN Mobile Services via Mobile Devices under the terms of this
Agreement.
“Input” shall mean suggestions, comments or
other feedback which either Party may, from time to time during the course of
this Agreement, provide to the other Party with respect to the MSN Mobile
Services and Company Services, respectively.
“Microsoft Marks”
shall mean those trademarks
of Microsoft which are set forth on Exhibit D hereto, and such other trademarks,
if any, that Microsoft may from time to time identify for Company and which the
Parties shall agree, in writing, as being “Microsoft Marks” within the meaning
of this Agreement.
“Microsoft User Data”
shall mean all data,
whether Aggregate Information or Personally Identifiable Information, generated
or collected by or for Microsoft under the terms of any Microsoft user agreement
in connection with a user’s registration and use of the Services, including but
not limited to all data collected via the Provisioning
Services.
“Mobile Device”
shall mean a wireless
device, including, but not limited to a phone, a personal digital assistant or
any other wireless device that enables a Subscriber or potential Subscriber to
access the Services provided by Company to a Carrier or
Company.
“MSN Mobile
Services” shall mean the
MSN mobile services of Microsoft that the Parties elect to include within this
Agreement by identification in one or more Services Schedules that may be
executed from time to time by the Parties hereunder.
“MSN Mobile Services Marketing
Agreement” means the marketing and trademark licensing agreement in the
form provided by Microsoft to Company from time-to-time, which agreement is
signed by Carrier and Microsoft (but not by Company).
“MSN Mobile Site” means
Microsoft’s website located at ▇▇▇▇▇▇.▇▇▇.▇▇▇
or such other location as Microsoft may designate from time to
time.
“Non-Disclosure
Agreement” shall mean that
certain Non-Disclosure Agreement by and between the Parties dated as of April
27, 2005.
“Non-Priority
Territory” shall mean any
country that is not a Priority Territory.
“Patent(s)” shall mean patents of any Third Party
that are issued and enforceable in the United States, members of the European
Union, Switzerland, Turkey, South Africa, Canada, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ and Japan.
“Person” shall mean any individual person,
corporation, partnership, co-partnership, limited liability company, firm, joint
venture, association, joint stock company, trust, estate, unincorporated
organization, or other entity, however organized.
“Personally
Identifiable Information” means information: (a) that identifies or can
be used to identify, contact or locate the individual person to whom such
information pertains, or (b) from which identification or contact information of
an individual person can be derived. Personally Identifiable
Information includes, but is not limited to: name, address, phone
number, fax number, email address, social security number or other
government-issued identifier, and credit card
information. Additionally, to the extent any other information (such
as, but not necessarily limited to, a personal profile, unique identifier,
biometric information and/or IP address) is associated or combined with
Personally Identifiable Information, then such information also will be
considered Personally Identifiable Information.
“Priority
Territories” shall mean the
territories set forth in Exhibit A.
“Provisioning
Services” shall mean, with
respect to each MSN Mobile Service, the provisioning services developed,
implemented, hosted and maintained by each Party that enable Subscribers to
sign-up for and configure such MSN Mobile Service, as more fully described in
the applicable Service Schedule.
“Services”
shall mean the MSN Mobile
Services provided to Subscribers and potential Subscribers via the Carrier
Network using the Company Services.
“Service Schedule”
shall mean a schedule to
this Agreement that identifies one or more MSN Mobile Services and is executed
by the Parties at any time hereunder.
“Subscribers” shall mean an individual having access
to the MSN Mobile Services via the Company Services through a Carrier with whom
Company has a Carrier Agreement.
“Term”
shall mean the period of
time from the Effective Date until the termination or expiration of this
Agreement, including any renewal periods, as stated in Section 10 below.
“Territory” shall mean the Countries set forth in
Exhibit A.
“Testing Process”
shall mean, with respect to
each MSN Mobile Service, the testing process that must be performed prior to
launch of such MSN Mobile Service by each Carrier, as is more fully described in
the applicable service schedule.
“Third Party”
shall mean any Person not a
Party to this Agreement.
“User Data” shall mean both the Microsoft User Data
and the Carrier User Data.
3. Services.
3.1 General. Microsoft hereby appoints
Company as a reseller of the MSN Mobile Services to Carriers in the Territory
during the Term, and the Company agrees to act in that capacity, subject to the
terms and conditions of this Agreement. Company may only resell the MSN Mobile
Services to a Carrier that: (i) has designated Company as an MSN Mobile Reseller
in the MSN Mobile Services Marketing Agreement accepted and executed by
Microsoft; and (ii) is located in the Territory.
3.2 Service
Delivery. Microsoft will,
in accordance with the terms set forth in this Agreement, provide applicable MSN
Mobile Service to the Company upon Acceptance of such MSN Mobile
Service. Company will, in accordance with the terms set forth
in this Agreement, provide the Company Services. Microsoft hereby
authorizes Company to provide the
MSN Mobile Services to existing and potential Subscribers via the Carrier
Network using the Company Services.
a.
Connectivity. The
Parties will establish technical connections between the MSN Mobile Services
platform, the Company Services and the Carrier Network to enable the
provisioning of the Services to Subscribers. Company is responsible for
obtaining and for providing Microsoft with configuration data required for
establishing such connectivity as is further detailed in each applicable Service
Schedule. Each party, at its option, may engage a Third Party to provide any of
such technical connections.
b.
Suspension of
Service. Microsoft may suspend its performance under this Agreement, in
whole or in part, at any time if, and for the period of time that Microsoft, in
its sole and absolute discretion, reasonably believes that suspension of its
performance under this Agreement is necessary to ensure the integrity, security,
performance, and availability of the MSN Mobile Service. Microsoft
will negotiate in good faith any request from Company for relief of the
Company’s Target (as such term is defined in Schedule 1 herein) if Microsoft
suspends the MSN Mobile Services. Any such request by Company will be
deemed a Dispute under Section 8.2 below and be governed by the terms of Section
8.2.
c.Branding. The MSN Mobile
Services shall include the primary branding of Microsoft, in Microsoft’s sole
discretion.
3.3 Microsoft Rights and
Obligations.
a.
Changes to the MSN
Mobile Services. Microsoft shall have sole control over the content and
functionality of the MSN Mobile Services. Microsoft may vary, alter,
reduce, redesign, substitute, remove or suspend any of the components of the MSN
Mobile Services at any time without notice.
b.
Provisioning
Services. Microsoft will provide such Provisioning Services as
may be specified in the applicable Service Schedule.
c.
Customer and Operational
Support. Microsoft shall provide [***]
support and maintenance services for Company’s [***]
support organization. Microsoft shall use commercially reasonable efforts to
maintain and support the MSN Mobile Services and any Provisioning Services for
which it is responsible in accordance with the applicable operational support
procedures set forth in Exhibit C.
d. Reservation of
Rights. Microsoft reserves all rights not expressly granted
herein.
3.4 Company’s Rights and
Obligations.
a.
Testing Process.
Company will test each MSN Mobile Service in accordance with the Testing Process
set forth in the applicable Service Schedule. Each Party shall use
commercially reasonable efforts to cause each of the MSN Mobile Services to be
Accepted.
b.
Technical
Requirements. Company shall ensure that the Carrier Network,
the Company Services comply with the technical requirements for provisioning of
the MSN Mobile Services as further detailed in the applicable Service
Schedule.
c.
Carrier and Subscriber
Support. As between Microsoft and Company, Company shall be responsible
for [***]
and [***]
support and maintenance services for Carriers and Subscribers, including without
limitation, the Operational Support Procedures set forth in Exhibit
C.
d.
Changes to Company
Services and Mobile Devices. Except as may be otherwise provided in a
Service Schedule, Company shall use commercially reasonable efforts to give
Microsoft at least [***]
days prior written notice, or other notice as reasonably practicable, of any
material change to the Company Services or the Carrier Network of which Company
is aware and would reasonably be expected to have a material effect on delivery
and/or deployment of the MSN Mobile Services.
e.
Subscriber
Billing. As between the Parties, Company shall be responsible for setting
and collecting fees from Carriers for Subscribers access to the MSN Mobile
Services and all direct communications with Subscribers regarding access to the
MSN Mobile Services, and any end user agreement required for access to the
Company Services, including but not limited to all terms and conditions related
to the setting and collecting of any fees from Subscribers for access to the MSN
Mobile Services.
3.5 Carrier Agreements and MSN Mobile
Services Marketing Agreement.
a.
General. Company
is responsible for negotiating and implementing Carrier Agreements with
Carriers. Company will be responsible for all contractual
negotiations and communication, technical communications, dispute resolution,
implementation and support to Carriers pursuant to such Carrier Agreements. With
the exception of any applicable terms contained in this Agreement, Company has
complete discretion to establish with the Carrier the pricing and all other
terms and conditions regarding Company’s provision of MSN Mobile Services to
such Carrier. The negotiation of these terms between Company and the
Carrier will not be subject to approval or review by Microsoft in any
way. With respect to the MSN Mobile Services Marketing Agreement,
Company may, subject to Section 3.5(b) below, present the form of the MSN Mobile
Services Marketing Agreement to a prospective Carrier, but Company is not
authorized to modify or negotiate in any manner the terms of the MSN Mobile
Services Marketing Agreement. Microsoft reserves the right to accept
or reject, in its sole discretion, any changes proposed by a Carrier to the MSN
Mobile Services Marketing Agreement; provided, however, that Microsoft will use
commercially reasonable efforts to enter into the MSN Mobile Services Marketing
Agreement with Carrier in a reasonably timely manner.
b.
Prioritization. Company may only present MSN Mobile
Services Marketing Agreement form to prospective Carriers that Company
reasonably believes will commercially deploy the MSN Mobile Services to
potential Subscribers, within twelve (12) months after the effective date of a
MSN Mobile Services Marketing Agreement; provided, however, that Company may request, and
Microsoft at its sole discretion may grant, exceptions to this
requirement. Company must implement a validation process, documented
in writing, to ensure that Carriers meet these criteria and make the
documentation data available to Microsoft upon request.
c.
Information. Company
shall immediately notify Microsoft (i) of any Carrier that is presented, by
Company, with the MSN Mobile Services Marketing Agreement. Company
shall notify Microsoft in writing promptly upon entering into a Carrier
Agreement. Company shall provide Microsoft with at least sixty (60)
days notice prior to launch of the MSN Mobile Services with a
Carrier. Company shall keep Microsoft reasonably informed on a
regular basis about the status of pending discussions with Carriers and on a
calendar monthly basis provide Microsoft with a written sales forecast including
without limitation expected number of Carrier Agreements during the next three
(3) month period, requested commercial launch dates and such other sales related
information that Microsoft may reasonably expect in order to assist Microsoft
plan the for roll out and commercial deployment of the MSN Mobile
Services.
d. Minimum Terms of the Carrier
Agreement. Company will use commercially reasonable efforts to ensure, at
a minimum, that each Carrier Agreement contain terms protective of Microsoft as
follows: (a) terms that are at least as protective of Microsoft’s rights
interests as the terms contained in Sections 3.2(b), 3.2(c), and 3.4(d) and such
terms that are explicitly set forth in the applicable Service Schedule
(excluding Section 3.1 of Service Schedule 1 hereto), (b) terms that disclaim,
to the extent permitted by applicable law, all warranties by Microsoft and any
liability by Microsoft for any damages, whether direct, indirect, or
consequential, arising from the MSN Mobile Services; and (c) terms stating that
the Carrier shall provide Company with necessary subscriber information as
necessary to provide the reports in Section 5.2 below on a monthly basis; (d)
terms stating that the Carrier is responsible for the billing relationship with
the Subscriber and as such is responsible for collection of all applicable value
added taxes to be collected from Subscribers of the Services for their use of
the Services and remittance of such collected taxes to the appropriate taxing
authority; unless such billing and collection services are provided by Company;
and (e) terms that include Microsoft as a third party beneficiary thereof with
respect to Microsoft’s intellectual property rights. For the purposes of this
Section 3.5(d) commercially
reasonable efforts means that Company will ensure (i) that said minimum
terms will be presented and duly negotiated with the Carrier; (ii) that
Microsoft is notified about if and what terms the Carrier is unwilling to
accept; and (iii) that Company will not, without Microsoft’s express written
consent, deliver MSN Mobile Services to such Carrier unless such minimum terms
are approved by the Carrier.
e.
Reservation of
Rights. Microsoft expressly reserves the right at any time
during the Term to terminate any MSN Mobile Services Marketing Agreement
pursuant to its terms. Microsoft agrees to notify Company in writing
of the termination of any Carrier to whom Company is provisioning MSN Mobile
Services. Microsoft will use all commercially reasonable efforts to
give Company as much prior notice as possible of such event. Such
notification to Company will include the Carrier’s name and current contact
information. All notifications will be sent via a courier service
able to track package delivery. Following such a notice, Company will
immediately cease the provisioning of MSN Mobile Services to the terminated
Carrier. If Microsoft so terminates a Carrier’s MSN Mobile Services
Marketing Agreement, Company will [***]. Microsoft
will negotiate in good faith any request from Company for relief of the
Company’s Target (as such term is defined in Schedule 1 herein) if Microsoft
terminates a Carrier’s MSN Mobile Services Marketing Agreement. Any
such request by Company will be deemed a Dispute under Section 8.2 below and be
governed by the terms of Section 8.2.
f.
Termination of
Relationship with a Carrier. In the event that Company’s
relationship with a Carrier terminates, the Carrier may appoint a new MSN Mobile
Reseller and Company must notify Microsoft in writing of such
termination. Company will use all commercially reasonable efforts to
give Microsoft as much prior notice as possible of such event. Such
notification to Microsoft will include the Carrier’s name and current contact
information. All notifications will be sent via a courier service
able to track package delivery. Company’s rights and obligations
hereunder with respect to such Carrier will terminate thirty (30) days from
Microsoft’s receipt of the required notice or upon the date of termination of
Company’s relationship with the Carrier, whichever occurs later.
4. Marketing
4.1 Marketing Plan. The
Parties will use commercially reasonable efforts to comply with the agreed
marketing plan.
5. Fees; Payments.
5.1 Fees. Company shall pay to Microsoft, with
respect to each MSN Mobile Service, the fees set forth in the applicable Service
Schedule in accordance with Section 5.3 below.
5.2 Invoices to
Company. Within [***]
following the commercial launch of the MSN Mobile Service with the first Carrier
hereunder, Microsoft shall deliver one or more invoices to Company for all fees
due hereunder for all applicable MSN Mobile Services for such calendar
month. Except as otherwise provided in a Service Schedule, such fees
will be determined based on relevant traffic and/or subscription information (as
applicable) generated by the MSN Mobile Services platform. Company
shall provide such reasonable and necessary information as Microsoft may specify
from time to time and mutually agreed to by written notice in order for
Microsoft to prepare each invoice.
Within
fifteen (15) days from the end of each calendar month, Company shall deliver to
Microsoft a written summary for such month including items mutually agreed to by
Company and Microsoft. Such summary shall include the following
detail by Carrier:
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Number
of VAS subscriptions or transactions for the
month
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Number
of MSN instant messages sent and received by Subscribers in that
month
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Number
of MSN email messages sent and received by
Subscribers
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For
the United States market only, number of Subscribers for each MSN Mobile
Service for the month
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Number
of [***]
are those Subscribers who accessed one or more MSN Mobile Services in that
month
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If
available to Company, Number of Subscribers who cancelled an MSN Mobile
Service in that month
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In
addition, such summary may include, at Company’s reasonable discretion, the
following detail by Carrier and such other reasonable and necessary information
as Microsoft may request from time to time:
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Number
of MSN contacts per Subscriber
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Email
attachment size per email
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Email
attachment type (e.g., document, photo, etc.) per
email
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5.3 Payments to Microsoft. All
amounts payable by Company under this Agreement are due and owing [***]
after the receipt of Microsoft’s invoice of such amounts. If payment
is not received by Microsoft by such date, Company may be assessed a finance
charge (accruing from the due date until payment is received) equal to the
[***]. Company
will pay the full amount of the invoice in U.S. dollars by bank wire transfer
or, if directed by Microsoft, by electronic funds transfer through an Automated
Clearing House (“ACH”) with electronic remittance detail attached, to the
following address or such other addresses as may be specified by Microsoft from
time to time:
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Company
will include the Agreement number and the Microsoft invoice number, if any, on
each electronic payment.
5.4 Microsoft’s Audit of
Company Records. During the Term and for two
(2) years thereafter, Company agrees to keep all books and records it deems
usual and proper relating to the calculations of payments due to Microsoft under
this Agreement. To verify such calculations, Microsoft may, during
the Term and for two (2) years thereafter, at its sole cost and expense, subject
to the balance of this Section 5.4, review copies of such books and records
strictly relating to the calculation of payments due under this
Agreement. Any audit or inspection under this Section will be
conducted following at least fifteen (15) days prior written notice by
Microsoft, and in a manner that does not unreasonably interfere with Company’s
operations. Company agrees to provide Microsoft’s designated audit
and/or inspection team with copies of such relevant books and records strictly
relating to calculation of payments due under this Agreement. In
addition,
if any audit or inspection
conducted under this Section reveals that Company has materially underpaid the
Microsoft fees due hereunder, Company will pay the reasonable costs of such
audit or inspection, [***]
a.
Materiality. For
purposes of this Section, “materially” shall mean that actual payments due as
disclosed by an audit
are more than [***]
more than Company has actually paid during any particular payment period covered
by such audit.
b.
Frequency. Unless
the prior audit revealed that Company has materially under-paid fees, Microsoft
shall be entitled to conduct an audit or inspection under the terms of this
Section only one (1) time during each year of the Term, and only one (1) time
per year following the Term.
c.
Confidentiality.
The books, records, other materials disclosed and results of any inspection or
audit hereunder will be subject to the confidentiality obligations referenced in
Section 11.1 of this Agreement.
5.5 Taxes.
a. The
amounts to be paid by Company to Microsoft hereunder do not include any foreign,
U.S. federal, state, local, municipal or other governmental taxes, duties,
levies, fees, excises or tariffs, arising as a result of or in connection with
the transactions contemplated under this Agreement including, without
limitation, any state or local sales or use taxes or any value added tax or
business transfer tax now or hereafter imposed on the provision of services to
Company by Microsoft under this Agreement, regardless of whether the same are
separately stated by Microsoft. All such taxes (and any penalties,
interest, or other additions to any such taxes), with the exception of taxes
imposed on Microsoft’s net income or with respect to Microsoft’s property
ownership, shall be the financial responsibility of Company.
b. Company
will pay all applicable value added, sales and use taxes and other taxes levied
on it by a duly constituted and authorized taxing authority on the services
provided under this Agreement or any transaction related thereto in each country
in which the services are being provided or in which the transactions
contemplated hereunder are otherwise subject to tax, regardless of the method of
delivery. Any taxes that are owed by Company, (i) as a result of
entering into this Agreement and the payment of the fees hereunder, (ii) are
required or permitted to be collected from Company by Microsoft under applicable
law, and (iii) are based upon the amounts payable under this Agreement (such
taxes described in (i), (ii), and (iii) above the “Collected Taxes”), shall be
remitted by Company to Microsoft, whereupon, upon request, Microsoft shall
provide to Company tax receipts or other evidence indicating that such Collected
Taxes have been collected by Microsoft and remitted to the appropriate taxing
authority. Company may provide to Microsoft an exemption certificate
acceptable to Microsoft and to the relevant taxing authority (including, without
limitation, a resale certificate) in which case, after the date upon which such
certificate is received in proper form, Microsoft shall not collect the taxes
covered by such certificate.
c. If,
after a determination by foreign tax authorities, any taxes are required to be
withheld, on payments made by Company to Microsoft, Company may deduct such
taxes from the amount owed Microsoft and pay them to the appropriate taxing
authority; provided however, that Company shall promptly secure and deliver to
Microsoft an official receipt for any such taxes withheld or other documents
necessary to enable Microsoft to claim a U.S. Foreign Tax
Credit. Company will make certain that any taxes withheld are
minimized to the extent possible under applicable law.
d. As
between the Parties, Company shall be solely responsible for the collection of
applicable taxes from Carriers and Subscribers, as and if
applicable.
e.
This Section 5.5 shall govern the treatment of all taxes arising as a result of
or in connection with this Agreement notwithstanding any other section of this
Agreement.
6.
Advertising
If
Company wishes to include any advertising in the MSN Mobile Service, then
Company agrees that Microsoft has the option to sell such advertisements on
behalf of Company, and [***]. Microsoft,
in its sole discretion, may impose its standard advertising guidelines for
advertisements in the MSN Mobile Services, including preclusing any
advertisements from a competitor of Microsoft.
7. Subscriber Data.
7.1 Microsoft Retains
Rights. Microsoft will retain all
rights in any Microsoft User Data that it collects from Subscribers via the MSN
Mobile Services, subject to the terms of applicable user agreement and this
Section 7 and all applicable laws. To the extent permitted by
applicable law Company shall disclose and license on a perpetual royalty free
basis to Microsoft all Microsoft User Data relating to Subscribers generated as
a result of the Company Services.
7.2 Sharing User
Data. Neither
party shall be obligated to share with the other party hereto any Carrier User
Data that it may collect hereunder, except as is reasonably required to provide
the Company Services and perform the obligations set forth herein. If
either party provides to the other any User Data that is Personally Identifiable
Information, then such receiving party will: (a) be permitted to use such shared
User Data solely for the purpose of performing its obligations under this
Agreement, (b) not disclose any such shared User Data to any Third Party (other
than contractors engaged, under appropriate written terms of confidentiality, to
assist with the provision of the Services and/or MSN Mobile Services),
(c) utilize appropriate security measures (including, but not necessarily
limited to, access control mechanisms and encryption keys, if applicable) to
protect such shared User Data from unauthorized access, use, disclosure,
alteration or destruction, and (d)
return such shared User Data to the providing party upon the soonest to occur of
(i) receipt by the receiving party of a written request from the providing party
for return of such shared User Data, or (ii) upon termination or expiration of
this Agreement.
7.3 Aggregate
Information. With respect to Aggregate
Information generated specifically by usage of the MSN Mobile Services by
Subscribers, each Party agrees that the Aggregate Information (a) must be used
in accordance with the applicable user agreement for the MSN Mobile Services, as
well as applicable law, and (b) may not be provided or made available to a
competitor of the other Party during the Term.
8. Designated Managers and Escalation of
Disputes.
8.1 Designated
Managers. Each
Party shall designate managers (the “Designated Manager”) who shall coordinate
the Parties’ respective obligations under this Agreement. The
Designated Managers shall be employees of Company and Microsoft tasked to
oversee the performance of the relationship. Each Party may change
its Designated Manager(s) from time to time, but shall inform the other Party of
such a change. The Designated Managers shall meet periodically to
discuss plans and issues as necessary, but not less than once per calendar
quarter.
The
initial Designated Managers shall be:
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8.2 Escalation of
Disputes. In the
event any dispute, claim, question or difference between the Parties (a
“Dispute”) arises with respect to the interpretation of this Agreement or the
Parties’ performance, enforcement, breach, or termination thereof, the
Designated Managers shall consult and negotiate with each other for at least ten
(10) business days, in good faith and understanding of their mutual interests,
in an attempt to reach a just and equitable solution to such Dispute that is
satisfactory to all Parties.
If this fails to provide an agreed
solution, the matter shall be immediately escalated to the following senior
executives of each Party, who shall similarly consult with each other with
regard to such Dispute for at least another five (5) business
days:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇@▇▇▇.▇▇▇
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Notwithstanding the foregoing,
nothing in this Agreement
will be deemed to prevent either Party, in the event of unauthorized disclosure
of Confidential Information
or violation of intellectual property rights, from seeking or obtaining injunctive or
other equitable relief at any time in any court of competent
jurisdiction. In addition, neither Party shall be precluded by this
Section 8.2 from seeking
any form of judicial or other relief that may be available to such Party after
fifteen (15) days following the date that a Dispute arises, unless the Parties
otherwise agree in writing to suspend such activities pending further
negotiation of such Dispute pursuant to this Section 8.2.
9. Intellectual
Property.
9.1 No Joint
Development. The
Parties do not contemplate that there will be any joint development of
intellectual property under this Agreement. The Parties shall not
engage in joint development except as they may separately agree, in writing, in
advance.
a.
Microsoft Intellectual
Property. Any intellectual property now owned or subsequently developed
by Microsoft or its suppliers, that is offered by Microsoft for use as part of
or in connection with the MSN Mobile Services, will continue to be owned by
Microsoft.
b.
Company Intellectual
Property. Any intellectual property now owned or subsequently developed
by Company or its suppliers, that is offered by Company for use as part of or in
connection with the Company Services, will continue to be owned by
Company.
9.2 Rights. Neither Party shall have
any rights to any materials, content or technology provided by the other Party
hereunder, except as specifically provided in this Agreement (including but not
limited to any Service Schedule hereto), and neither shall alter, modify, copy,
edit, format, translate, create derivative works of or otherwise use any
materials, content or technology provided by the other Party except as
explicitly provided herein, or as approved in advance, in writing, by the other
Party.
a.
MSN Mobile
Specifications. To the extent that Microsoft provides Company with any
written technical specifications or documentations with respect to the MSN
Mobile Services or any related Microsoft software, products technologies or
services (“MSN Mobile Specifications”), such MSN Mobile Specifications are
licensed to Company on a nonexclusive, non-assignable, non-sublicenseable basis,
and may be used by Company solely for the purpose of providing Input to
Microsoft (except as otherwise expressly provided in a Service Schedule or as
may be otherwise agreed to in writing by the Parties).
b.
Company
Specifications. To the extent that Company provides MSN with any written
technical specifications or documentations with respect to the Company Services
(“Company Specifications”), such Company Specifications are licensed to
Microsoft on a nonexclusive, non-assignable, non-sublicenseable basis, and may
be used by Microsoft solely for the purpose of providing Input to Company
(except as otherwise expressly provided in a Service Schedule or as may be
otherwise agreed to in writing by the Parties).
9.3 Input.
a.
To
Microsoft. Upon disclosure by the Company to Microsoft of any Input
regarding the MSN Mobile Services, the product and service roadmap for the MSN
Mobile Services, or any other addition to the MSN Mobile Services as presented
to Company by Microsoft, Company shall be deemed to have granted Microsoft a
nonexclusive, worldwide, perpetual, irrevocable, fully paid, royalty-free,
assignable and transferable license as to such Input, including all intellectual
property rights therein, to make, use, reproduce, modify, adapt, create
derivative works based on, translate, distribute (directly and indirectly),
transmit, display and perform publicly, license, rent, lease, and sell such
Input (and derivative works thereof) as part of any Microsoft software,
products, technologies and services, and to sublicense any or all of the
foregoing rights (but only with respect to Microsoft software, products
technologies and services). Company agrees that it shall not knowingly provide
Microsoft with any Input that is subject to license terms that seek to require
any Microsoft software, products, technologies or services incorporating or
derived from such Input, or other Microsoft intellectual property, to be
licensed to or otherwise shared with any third party.
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b. To Company. Upon
disclosure by Microsoft to the Company of any Input regarding the Company
Services, the product and service roadmap for the Company Services, or any other
addition to the Company Services as presented to Microsoft by Company, Microsoft
shall be deemed to have granted Company a nonexclusive, worldwide, perpetual,
irrevocable, fully paid, royalty-free, assignable and transferable license as to
such Input, including all intellectual property rights therein, to make, use,
reproduce, modify, adapt, create derivative works based on, translate,
distribute (directly and indirectly), transmit, display and perform publicly,
license, rent, lease, and sell such Input (and derivative works thereof) as part
of any Company software, products, technologies and services, and to sublicense
any or all of the foregoing rights (but only with respect to Company’s software,
products, technologies and services). Microsoft agrees that it shall not
knowingly provide Company with any Input that is subject to license terms that
seek to require any Company software, products, technologies or services
incorporating or derived from such Input, or other Company intellectual
property, to be licensed to or otherwise shared with any third
party.
c.
Process. Sections
9.3(a) and (b) above will apply if Input is disclosed by Company to Microsoft or
by Microsoft to Company, as applicable, unless the Parties agree otherwise
applying the following process. In the event that either Company or Microsoft
wish to disclose Input to the other party but not pursuant to the terms set
forth above it shall provide the other Party with prior written notice together
with any proposed change(s) to the Agreement. To enable the disclosure the
Parties will negotiate in good faith for including the proposed change(s) to the
Agreement by written amendment. If good faith negotiations do not result in an
acceptable agreement for the parties, no disclosure of the Input shall be made.
For the avoidance of doubt neither Company nor Microsoft is under any obligation
whatsoever to disclose or otherwise reveal any Input or other trade secret(s) to
the other party under this Agreement.
9.4 Marks.
a. Company Marks License.
Subject to Section 9.4(c) below, Company hereby grants Microsoft the
non-exclusive, royalty free, personal, revocable, non-transferable right to use
the Company Marks during the term of this Agreement solely in promotional and
marketing materials about the provision of MSN Mobile Services to Company Users,
as such are more fully described in the Marketing Plan, provided such uses shall
be strictly in accordance with the procedures and guidelines set forth in the
trademark usage guidelines included in Exhibit D.
b. Microsoft Marks License.
Subject to Section 9.4(c) directly below, Microsoft hereby grants Company the
non-exclusive, royalty free, personal, revocable, non-transferable right to use
the Microsoft Marks during the term of this Agreement solely in promotional and
marketing materials about the provision of MSN Mobile Services to Company Users,
as such are more fully described in the Marketing Plan, provided such use shall
be strictly in accordance with the procedures and guidelines set forth in the
trademark usage guidelines included in Exhibit D.
c. Use of Marks. Prior to
the first use of any of the other Party’s Marks in the manner permitted herein,
the Party using such Marks shall submit a sample of such proposed use to the
other Party for its prior written approval.
i. In
addition, if there are modifications to a Party’s Marks after the first approved
use of such Marks, such modifications must be submitted to the owner of such
Marks for approval prior to the modified use. Such approval will not
be unreasonably withheld.
ii. Without
limiting the generality of the foregoing, each Party shall strictly comply with
all standards with respect to the use of the other Party’s Marks which may be
furnished by such Party from time to time, including but not limited to those
set forth in Exhibit D, and all uses of the other Party’s Marks in proximity to
the trade name, trademark, service name or service ▇▇▇▇ of any other person
shall be consistent with the standards furnished by the other Party from time to
time.
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iii. Neither
Party shall create a combination ▇▇▇▇ consisting of one or more Marks of each
Party.
iv. All
uses of the other Party’s Marks shall inure to the benefit of the Party owning
such ▇▇▇▇. Each Party hereby acknowledges and agrees that, as between the
Parties hereto, the other Party is the owner of the Marks identified as its
Marks on the applicable Exhibit to this Agreement, and all goodwill associated
therewith shall inure to the benefit of the Party owning said
Marks.
v. Either
Party may make updates or changes that apply to its customers generally to the
list of Marks usable by the other Party hereunder at any time by 30 days written
notice to the other Party.
vi. During
the term of this Agreement, neither Party shall use, register, or attempt to
register, in any country, any name, trademark or domain name identical or
confusingly similar to the other Party’s Marks. The owner Party shall have
the sole right to and in its sole discretion may control any action concerning
its Marks.
vii. Any
materials, activities, products, or services distributed or marketed by a Party
in conjunction with the other Party’s Marks shall: (i) meet all terms of this
Agreement, (ii) meet or exceed standards of quality and performance generally
accepted in the industry, and (iii) comply with all applicable laws, rules, and
regulations. Each Party shall fully correct and remedy any deficiencies in
its use of the other Party’s Marks and/or the quality of any materials,
activities, products, or services it offers or markets in conjunction with the
other Party’s Marks, upon reasonable notice from the other Party.
viii. Neither
Party is granted, and neither shall purport, to permit any Third Party to use
the other Party’s Marks in any manner without such other Party’s written
consent.
ix. Each
Party shall immediately cease all use of the other Party’s Marks upon expiration
or termination of this Agreement.
d. Reservation of Rights.
Each Party reserves all rights not expressly granted herein.
e. Protection of Marks. At the
other Party’s expense, each Party shall reasonably assist the other Party in
protecting and maintaining the other Party’s rights in the Marks. The owner of a
▇▇▇▇ shall have the sole right to and in its sole discretion may commence,
prosecute or defend, and control any action concerning its ▇▇▇▇(s).
Neither Party shall contest the validity of, or by act or omission jeopardize,
or take any action inconsistent with, the other Party’s rights or goodwill in
its Marks in any country, including attempted registration of the Marks, or use
or attempted registration of any ▇▇▇▇ confusingly similar thereto.
10. Term and
Termination.
10.1 Term. The initial Term of this
Agreement shall commence on the date that this Agreement is signed (the
“Effective Date”) and shall continue for [***].
10.2 Termination. Except as expressly
provided elsewhere in this Agreement, either Party may terminate this Agreement
under the following conditions:
a.
For
Cause. Without prejudice to any other available remedies,
either Party may terminate this Agreement if the other Party is in material
breach hereof and, with the exception of breaches involving violations of the
law, has not cured such material breach to the reasonable satisfaction of the
non-breaching Party within [***]
after having been notified, in writing, of the material breach.
b.
For
Bankruptcy/Insolvency. Without prejudice to any other available remedies,
either Party may terminate this Agreement immediately following written notice
to the other Party, if the noticing Party: (a) ceases to do business in the
normal course, (b) becomes or is declared insolvent or bankrupt, (c) is the
subject of any proceeding related to its liquidation or insolvency (whether
voluntary or involuntary) which is not dismissed within [***],
or (d) makes an assignment for the benefit of creditors.
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c.
For Violation of the
Law. Without prejudice to any other available remedies, either
Party may terminate this Agreement with [***]
prior written notice following a factual substantiation and legal determination
that the other Party has failed to substantially comply with all applicable laws
and regulations governing the other Party’s performance under this
Agreement.
d.
Failure to sign a
Carrier Agreement or Failure to Launch. If no Carrier Agreement has been
signed between the Company and a Carrier in the Territory within [***]
from the Effective Date, or if no MSN Mobile Services has been commercially
deployed by a Carrier hereunder within [***]
from the Effective Date, then either Party may terminate this Agreement with
[***]
prior written notice.
10.3 Transition. The Parties shall agree on and
implement a commercially reasonable transition plan during the transition period
for the migration of the Services to Microsoft or any replacement Third Party
provider selected by Microsoft. Each Party shall cooperate with the
other with respect to the termination of this Agreement and will use
commercially reasonable efforts to perform its obligations under the transition
plan.
10.4 Survival. In the event of expiration
or termination of this Agreement for any reason, Sections 2, 5.3, 5.4, 5.5, 7,
9.1, 9.3, 10.3, 10.4, 11-15 hereof, and all other Sections under this
Agreement that by their nature would continue beyond the expiration or
termination, shall survive expiration or termination
11. Confidentiality.
11.1 Non-Disclosure
Agreement. Confidential
Information of the Parties exchanged in connection herewith shall be as defined,
and treated in accordance with, the provisions of the Non-Disclosure Agreement,
the terms and conditions of which are incorporated herein by this
reference. The Parties
further agree that all terms and conditions of this Agreement shall be deemed
Confidential Information as defined therein.
11.2 Publicity. Except for legally mandated
disclosures or pursuant to the rules of the applicable stock exchanges on which
the securities of the Parties are traded, no Party shall issue any press release
or make any public announcement(s) disclosing the terms of this Agreement
(including but not limited to any Exhibit hereto) without the prior written
consent of the other Party. Notwithstanding the prior sentence, the
Company may issue a press release regarding execution of this Agreement within
thirty (30) days of the Effective Date, such press release to be reviewed and
approved by Microsoft.
12. Warranties, Representations and
Covenants.
12.1 Company
Representations, Warranties and Covenants. Company represents, warrants and
covenants to Microsoft that:
a. Authority. Company has the
power and authority to enter into this Agreement and to fully perform its
obligations hereunder. Company is not subject to any agreements that
conflict with its obligations hereunder.
b. Right to Operate. Company has
obtained, and shall maintain in full force during the Term hereof, such federal,
state, provincial, municipal and/or other governmental authorizations as are
necessary to operate and to otherwise perform its obligations under this
Agreement, and shall be in substantial compliance with all applicable laws and
regulations governing such performance.
c. Carrier Support. Use
commercially reasonable efforts to service and support its Carriers and promptly
inform the appropriate Microsoft contact of any difficulties it encounters in
servicing its Carriers.
d.
No Representations or
Warranties. Company shall not make any representations or warranties
concerning the MSN Mobile Services or any other Microsoft product or service
inconsistent with this Agreement, except as may be specifically authorized, in
writing, by Microsoft.
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12.2
Microsoft
Representations, Warranties and Covenants. Microsoft represents, warrants and
covenants to Company that:
a.
Authority.
Microsoft has the power and authority to enter into this Agreement and to fully
perform its obligations hereunder. Microsoft is not subject to any
agreements that conflict with its obligations hereunder.
b.
Right to Operate.
Microsoft has obtained, and shall maintain in full force during the Term hereof,
such federal, state, provincial, municipal and/or other governmental
authorizations as are necessary to operate and to otherwise perform its
obligations under this Agreement, and shall be in substantial compliance with
all applicable laws and regulations governing such performance.
c.
No Representations or
Warranties. Microsoft will not make any representations or warranties
concerning the Company Services or any other Company products or services except
as may be specifically authorized, in writing, by Company.
12.3
No Other
Warranties. ALL
PRODUCTS, SERVICES OR OTHER MATERIALS DELIVERED UNDER THE TERMS OF THIS
AGREEMENT SHALL BE “AS IS,” WITHOUT WARRANTY OR CONDITION OF ANY KIND, AND THE
ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE THEREOF IS ASSUMED BY THE
RECEIVING PARTY AND ITS CUSTOMERS; AND, EXCEPT FOR THE EXPRESS WARRANTIES SET
FORTH IN SECTIONS 12.1 AND 12.2, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES OR
REPRESENTATIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT
AND FITNESS FOR A PARTICULAR PURPOSE.
WITHOUT LIMITING THE FOREGOING,
MICROSOFT EXPRESSLY DISCLAIMS ANY WARRANTIES THAT ACCESS TO OR USE OF THE MSN
MOBILE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE.
Notwithstanding any other provision of
this Agreement, neither Party shall have any liability for any Third Party
content provided, made available or delivered through the MSN Mobile Services or
the Company Services.
13. Defense of Claims.
13.1 Defense of Claims by
Microsoft. Subject to the remainder of this Section
13.1 and Sections 13.3 and 14 below, Microsoft will defend and hold harmless
Company and its directors, officers and employees against a lawsuit or other
judicial action brought by a Third Party who is not an Affiliate of Company for
any claims that the MSN Mobile Services or any materials provided by
Microsoft in connection with delivery of the MSN Mobile Services infringe such
Third Party’s Patent, copyright, trademark, or other intellectual property right
or misappropriate its trade secret
and will pay the amount of any resulting adverse final judgment (or settlement
to which Microsoft consents) from such lawsuit or other judicial
action.
Microsoft’s obligations hereunder with
respect to any Third Party Patent claim shall apply solely to the extent such
claims wherein the MSN Mobile Services alone, without combination or
modification, constitute direct or contributory infringement of such Third Party
Patent claim. In addition, Microsoft’s obligations hereunder with
respect to any claims described herein shall not extend to any claim, adverse
final judgment or damages to the extent arising from: (i)
specifications, services, content or other materials not provided by Microsoft;
(ii) Company’s implementations, if any, of any specifications provided by
Microsoft hereunder; (iii) Company’s use or distribution of any component of the
MSN Mobile Services after Microsoft notifies Company in writing to discontinue
use or distribution due to such a claim or after Microsoft completes one of the
actions described in the first sentence of the following paragraph; (iv) damages
attributable to the value of the distribution or use of a non-MSN Mobile
Services product, data or business process or (v) alteration of the MSN Mobile
Services, or any component thereof by Company or any Third Party not approved by
Microsoft.
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If Microsoft receives information
concerning an infringement claim related to any component of the MSN Mobile
Services, it may, at its expense, but without obligation to do so, either (i)
procure for Company the right to continue to use or distribute the allegedly
infringing component, or (ii) modify the component or replace it with a
functional equivalent, to make it non-infringing, in which case Company will
stop using or distributing the allegedly infringing component
immediately.
13.2 Defense of claims by
Company. Subject
to the remainder of this Section 13.2 and Sections 13.3 and 14 below, Company
will defend and hold harmless Microsoft and its directors, officers and
employees against a lawsuit or other judicial action brought by a Third Party
who is not an Affiliate of Microsoft for any claims that the Company
Services or any materials provided by Company in connection with delivery of the
Company Services or delivery of the MSN Mobile Services via the Company Services
infringe such Third Party’s Patent, copyright, trademark, or other intellectual
property right or misappropriate its trade secret, and will pay the amount of any resulting
adverse final judgment (or settlement to which Company consents) from such
lawsuit or other judicial action.
Company’s obligations hereunder with
respect to any Third Party Patent claim shall apply solely to the extent such
claims wherein the Company Services or other Company materials alone, without
combination or modification, constitute direct or contributory infringement of
such Third Party Patent claim. In addition, Company’s obligations
hereunder with respect to any claims described herein shall not extend to any
claim, adverse final judgment or damages to the extent arising
from: (i) specifications, services, content or other materials not
provided by Company; (ii) Microsoft’s implementations, if any, of any
specifications provided by Company hereunder; (iii) Microsoft’s use of any
component of the Company Services after Company notifies Microsoft in writing to
discontinue use due to such a claim or after Company completes one of the
actions described in the first sentence of the following paragraph; (iv) damages
attributable to the value of the use of a non-Company product, data or business
process; or (v) alteration of the Company Services, or any component thereof by
Microsoft or any Third Party not approved by Company.
If Company receives information
concerning an infringement claim related to any component of the Company
Services or any other Company materials, it may, at its expense, but without
obligation to do so, either (i) procure for Microsoft the right to continue to
use or distribute the allegedly infringing item, or (ii) modify the item or
replace it with a functional equivalent, to make it non-infringing, in which
case Microsoft will stop using or distributing the allegedly infringing item
immediately.
13.3 Process. For the purposes hereof, the
“Defending Party” shall mean the Party having defense obligations pursuant to
the foregoing provisions, the “Defended Party” shall mean the Party and/or all
applicable third parties being defended pursuant to the foregoing provisions,
and a “Claim” shall mean a claim for which the Defended Party is to be defended
pursuant to the foregoing provisions. The Defended Party shall
promptly notify the Defending Party in writing, specifying the nature of the
Claim and the total monetary amount or other relief sought
therein. The Defending Party shall be given sole control over the
defense or settlement of such Claim, and shall conduct all proceedings or
negotiations in connection therewith. The Defended Party shall
cooperate with the Defending Party in all reasonable respects in connection with
the defense of any such Claim, and the Defending Party shall reimburse the
Defended Party for all reasonable out-of-pocket expenses incurred in providing
such cooperation.
14. Exclusion of Damages; Limitation of
Liability.
TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW AND REGARDLESS OF WHETHER LIABILITY IS BASED ON BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES,
OR OTHER LEGAL THEORY:
(A) NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL
DAMAGES ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT INCLUDING,
WITHOUT LIMITATION, SUCH DAMAGES FOR LOSS OF BUSINESS PROFITS AND/OR BUSINESS
INFORMATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES; AND
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(B) THE MAXIMUM AGGREGATE
LIABILITY OF ONE PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY REASON,
INCLUDING, WITHOUT LIMITATION, UNDER THE DEFENCE OBLIGATIONS SET FORTH IN
SECTION 13 HEREOF, SHALL BE EQUAL TO [***] PAID BY COMPANY TO MICROSOFT
HEREUNDER;
PROVIDED THAT THE FOREGOING EXCLUSIONS AND
LIMITATIONS SHALL NOT APPLY TO ANY DAMAGES ARISING FROM EITHER PARTY’S BREACH OF
ITS CONFIDENTIALITY OBLIGATIONS CONTAINED IN SECTION 11 HEREOF OR INFRINGEMENT
OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
15. General.
15.1 Notices. All notices under this
Agreement must be addressed to a Party (as specified on the first page of this
Agreement) and sent by one of the following methods: (1) postage prepaid,
certified or registered mail, return receipt requested; (2) overnight courier
(e.g., DHL, Federal Express, Airborne), charges prepaid, confirmation requested;
or (3) facsimile, with confirmation of delivery. Notices will be
deemed delivered on the date shown on the postal return receipt or on the
overnight courier or facsimile confirmation of delivery.
15.2 Relationship of the
Parties. Nothing
herein contained shall be deemed to create an association, partnership, joint
venture, trust, agency or other relationship between the Parties. No
Party shall enter into any agreement with any Third Party on behalf of the
other, nor shall either Party be empowered to bind or commit, or purport to be
empowered to bind or commit, the other Party to any Third
Party. Except as provided for herein, no Party is authorized to
represent the other Party without its prior written
approval.
15.3 Counterparts. This Agreement may be
executed by facsimile and in counterparts, each of which will be deemed an
original, and all of which together shall constitute one and the same
instrument.
15.4 Construction. If a court of competent
jurisdiction holds any term, covenant or restriction of this Agreement to be
illegal, void or unenforceable, in whole or in part, the remaining terms,
provisions, covenants and restrictions of this Agreement will remain in full
force and effect and will in no way be affected, impaired or
invalidated. If any provision in this Agreement is determined to be
unenforceable in equity because of its scope, duration, geographical area or
other factor, then the court making that determination will have the power to
reduce or limit such scope, duration, area or other factor, and such provision
will be then enforceable in equity in its reduced or limited
form. Notwithstanding that certain provisions of this Agreement may
contemplate that the Parties will mutually determine or agree upon certain
matters (“Future Understandings”), each Party acknowledges and agrees that the
Parties’ failure to mutually determine or agree as to any Future Understandings
is not a breach of this Agreement by either Party and does not give rise to any
cause of action or right to pursue remedies for breach on the part of either
Party; and the Parties’ failure to mutually determine or agree as to any Future
Understandings does not excuse either Party’s performance of its other
obligations under this Agreement unless under this Agreement the Party’s other
obligations are expressly conditioned upon the Parties’ agreement upon the
Future Understandings. Section headings in this Agreement are for
convenience only and shall not be construed to affect the meaning of any
provision of this Agreement.
15.5 Assignment. Neither Party may assign this
Agreement, or any rights or obligations hereunder, without the express written
consent of the other Party (such consent not to be unreasonably withheld or
delayed). Any attempted assignment by a Party in violation of this
Section shall be void and shall constitute a material default and breach of this
Agreement. A change of control of a Party by any means, including but
not limited to by operation of law or by sale of securities or assets, shall be
considered an assignment for the purposes of this Agreement.
15.6 Expenses. Except as otherwise expressly provided
herein, each Party shall be responsible for all costs and expenses incurred in
connection with the performance of its obligations
hereunder.
15.7 Governing Law and
Jurisdiction. This Agreement and all
matters relating thereto will be construed and controlled by the laws of the
State of Washington, without regard to the conflict of laws provisions thereof,
and each Party consents to the exclusive jurisdiction of the federal and state
courts sitting in King County, Washington. If either Microsoft or
Company employs attorneys to enforce any rights arising out of or relating to
this Agreement, the prevailing Party will be entitled to recover such of its
reasonable attorneys' fees, costs and other expenses as may be awarded by the
court in its discretion. The foregoing choice of jurisdiction and
venue shall not prevent either Party from seeking injunctive relief with respect
to a violation of intellectual property rights, confidentiality obligations or
enforcement or recognition of any award or order in any appropriate
jurisdiction. The 1980 United Nations Convention on Contracts for the
International Sale of Goods and its related instruments will not apply to this
Agreement.
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15.8 Force
Majeure. Except
for payment obligations, neither Party shall be deemed to be in default of or to
have breached any provision of this Agreement as a result of any delay, failure
in performance or interruption of service, resulting directly or indirectly from
acts of God, acts of civil or military authorities, civil disturbances,
terrorism, wars, strikes or other labor disputes, fires, flood, storm,
explosions, or any other cause which is beyond the reasonable control of such
Party provided that such Party makes reasonable efforts to promptly remedy the
failure or delay when such cause is eliminated. If a Party’s failure
or delay of performance is excused by this Section for thirty (30) days or more,
the other Party may, but shall not be obligated to, immediately terminate this
Agreement upon written notice to the non-performing Party.
15.9 Non-waiver. No waiver of any breach of
any provision of this Agreement shall constitute a waiver of any prior,
concurrent or subsequent breach of the same or any other provisions hereof, and
no waiver shall be effective unless made in writing and signed by an authorized
representative of the waiving Party.
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
17
Service Schedule 1
“Messenger and Hotmail Client
Services”
This
Service Schedule No. 1 dated ______________ (the “Schedule Date”) by and between
Microsoft Corporation (“Microsoft”) and IXI Mobile, Inc. (“Company”) amends the
MSN Mobile Reseller Agreement between such parties dated _________ (the
“Agreement”). Capitalized terms not otherwise defined herein have the
meanings ascribed to them in the Agreement.
|
1.
|
MESSENGER
AND HOTMAIL CLIENT SERVICES
|
The
“Client Service” is a mobile version of MSN Messenger and MSN Hotmail that may
be accessed by a Client Service Subscriber via a Client and Client Services
Server solution that communicates with the MSN Mobile Server using the MSP in
the manner described in this Service Schedule. The Client Service,
which may be changed or updated by Microsoft from time to time pursuant to
Section 3.3(a) of the Terms and Conditions, is included as an MSN Mobile Service
within the Agreement as of the date hereof. This Service Schedule
covers MSN Messenger and Hotmail Client Services operating only on Company’s
Mobile Devices as defined below.
|
2.
|
DEFINITIONS
|
As used
in this Service Schedule (whether in the singular or plural), the following
capitalized terms shall have the following meanings. Other capitalized terms
have the meanings ascribed to them elsewhere in this Agreement.
“Certification” means the
process of reviewing the Client’s compliance with the Specifications as more
fully described in Section 3 and the Certification Guidelines.
“Certification Guidelines”
means the criteria and processes documentation provided by Microsoft to Company
upon request by Company, as updated or otherwise amended by Microsoft from time
to time, related to various levels of Certification performed pursuant to this
Agreement.
“Certification Vendor” means a
third party specifically authorized by Microsoft to perform Certification tests
in accordance with Section 3 of this Agreement.
“Client” means Company’s
software client intended for use on a Mobile Device that is capable of directly
accessing the Service pursuant to the terms and conditions of this
Agreement.
“Client Developer” means the
company that under separate license with Microsoft has developed the
Client.
“Client Services Server” means
a server application(s) for the Service, or any third party server
application(s) authorized by Microsoft to access the Service, that run on a
secured Company or such third party network server and facilitate communication
between the Client and the MSN Mobile Server via, on the back-end, the Mobile
Services Protocol.
“Client Service Subscriber”
means a Subscriber that subscribes to the MSN Mobile Service.
“Final Certification” or “Finally Certified” shall
have the meaning set forth in Section 3.2.
“Mobile Services Protocol” or
“MSP” means the set of rules and standards for enabling Mobile Devices to
connect with the MSN Mobile Servers, as updated or otherwise amended by
Microsoft from time to time in Microsoft’s sole discretion.
“MSN Hotmail Services” means
the electronic mail service offered on (or any other URL(s)
designated by Microsoft) from time to time in so far as it provides an ability
to send and receive emails, including any upgrades, subsequent releases or
future versions thereof, but excluding any other services or functionalities
offered on that site whether current or future.
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
18
-
Final Execution Copy -
“MSN Messenger Services” means
the MSN instant messaging and presence services offered on (or any
other URL(s) designated by Microsoft) from time to time, including any upgrades,
subsequent releases or future versions thereof, but excluding any other services
or functionalities offered on that site whether current or
future.
“MSN Mobile Server” means
Microsoft server application(s) that run on a Microsoft server and, for purposes
of providing the Service, enable access to portions of the Service
network.
“Pre-Certification” or “Pre-Certified” shall have
the meaning set forth in Section 3.1.
“Re-Certification” or “Re-Certified” shall have the
meaning set forth in Section 3.3.
“Service” means a mobile
version of MSN Messenger or Hotmail Services, and any other mobile services
offered by Microsoft in its sole discretion that may be accessed by a Subscriber
via a Client that communicates with the MSN Mobile Server using the MSP in the
manner described in this Agreement.
|
3.
|
CERTIFICATION
|
|
3.1
|
Pre-Certification.
Company may, at its discretion, submit a release candidate of the Client
to a Certification Vendor to obtain initial Certification
(“Pre-Certification”) pursuant to the criteria and processes set forth in
the Certification Guidelines. As between the Parties, Company shall be
responsible for all Pre-Certification fees charged by the Certification
Vendor for Certification services. Any Client obtaining Pre-Certification
shall still be required to receive Final Certification as described in
this Section 3.
|
|
3.2
|
Final
Certification. Company acknowledges that a Client shall undergo
end-to-end evaluation by a Certification Vendor with a specific Carrier
network, Client Services Server, and Mobile Device(s) (“Final
Certification”) pursuant to the criteria and processes set forth in the
Certification Guidelines, before an applicable Carrier implements the
Service pursuant to a Carrier Agreement. For the avoidance of
any doubt, no Client shall be distributed to Subscribers unless such
Client has passed Final Certification, as evidenced by a written letter of
Final Certification by the Certification Vendor and a Carrier Agreement
has been executed to allow distribution of the Service to Subscribers of
such Client. As between the Parties, Company is responsible for paying
Final Certification fees charged by the Certification Vendor.
|
|
3.3
|
Re-Certification.
Any change made to a Pre-Certified or Finally-Certified Client that
substantially impacts (i) the manner in which such Client accesses the
Service and/or (ii) user experience of the Service, may require
reevaluation (“Re-Certification”) pursuant to the criteria and processes
set forth in the Certification Guidelines. Company shall submit such
Client to Microsoft in accordance with the process set forth in the
Certification Guidelines. As between the Parties, Company is responsible
for paying Re-Certification fees charged by the Certification Vendor;
except for the event that it is Microsoft that requires such changes be
made to a Pre-Certified or Finally-Certified Client; then Microsoft shall
be responsible for Re-Certification fees charged by the Certification
Vendor for Re-Certification services.
|
|
4.
|
UPDATES.
|
Microsoft
may, in its sole discretion, amend the specifications, including without
limitation the Mobile Services Protocol. If Microsoft amends the technical
specifications during the Term of this Agreement, Microsoft shall use
commercially reasonable efforts to provide Company with reasonable prior notice
of such amendment and to provide Company with documentation for such amendment
within a commercially reasonable period of time. Company shall: (i) cooperate in
good faith to provide necessary assistance to Microsoft and the Client Developer
to ensure that the Client or Client Services Server is updated accordingly, and
(ii) require all Carriers to notify Client Service Subscribers to install or
obtain updates to the Client, if applicable. Company will require the
Carrier, to notify all Client Service Subscribers, that failure to update or
enhance the Client at the time of deployment of a Client Service update for the
Client, if any, may render the Client unable to make use of the Client
Service
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
19
-
Final Execution Copy -
|
5.
|
SECURITY.
|
Company
shall (i) not modify or otherwise change the Client and Client Services Server
or remove any security measures, such as cryptographic protocols and secured
networks, used to protect information transmitted to or from a Client in
connection with use of the Service; and (ii) Company shall not store or collect
Passport credential information such as Passport Passwords, secret questions and
secret answers, except as expressly permitted in this Agreement. Furthermore,
Company shall require Carriers to remain current with, install all, and not
block any Microsoft or Client Developer security patches and hot fixes related
to the Client’s use of the Service, and that the Carrier ceases to use,
distribute or otherwise provide any previous version of the Client or Client
Services Server, as applicable
|
6.
|
ADDITIONAL
MINIMUM TERMS OF THE CARRIER
AGREEMENT.
|
In
addition to the terms set forth in Section 3.5(d) of the Terms and Conditions,
Company will ensure, at a minimum, that each Carrier Agreement contain terms
that are at least as protective of Microsoft’s rights interests as the
applicable portions of the terms contained in Sections 3.2, 3.3, 4 and 5, and 8
of this Service Schedule.
|
7.
|
FEES.
|
Deployment
Fee. Upon execution of this Service Schedule, Company will pay
to Microsoft, in accordance with Sections 5.2 and 5.3 of the Terms and
Conditions, $[***]
for deployment of the Messenger and Hotmail Client Services.
Subscriber
Fee. Company will pay to Microsoft, in accordance with
Sections 5.2 and 5.3 of the Terms and Conditions, a fee per Client Service
Subscriber per month in the case of the U.S. market, and a fee per Active User
per month in the case of non-U.S. markets. The table below sets out a
summary of the Client Service Subscriber and Active User fees:
|
Microsoft’s Revenue for
Base Offering
|
Microsoft’s Revenue Share
of VAS
|
Minimum Revenue per Subscriber
|
||
|
U.S.
Market: [***]% of Base Offering /Client Service
Subscriber/month
|
[***]%
|
[***]/Client
Service Subscriber/month
|
||
|
Non-U.S.
Priority Territories: [***]% of Base Offering /Active
User/month
|
[***]%
|
[***]/Active
User/month
|
||
|
Non-Priority
Territories: [***]/Active User/month
|
[***]%
|
not
applicable
|
Base
Offering. The Base Offering is the core, mass-market offering
of the MSN Messenger and Hotmail Client Services, that will represent the
entry-level subscription necessary to use the Mobile Device. The Base
Offering will vary depending on the retail offerings defined by Company or
Carrier for any given territory.
VAS. Value-added
service (“VAS”) is an MSN Mobile Service which is not part of the Base
Offering. For every Carrier deployment, Company will provide
Microsoft with a list of proposed Base Offerings and VAS. The Parties
shall agree to the application of the definition of Base Offering and VAS to the
proposed offering. Such list will be updated from time to
time.
[***] For
Messenger and Hotmail Client Service Subscribers in the [***],
Company will pay to Microsoft [***]
of Base Offering per Client Service Subscriber per month, plus [***]
of any VAS generated by Messenger and Hotmail Client Service
Subscribers. The revenue share attributable to Microsoft (after
adding Microsoft’s revenue share of base offering and Microsoft’s revenue share
of VAS) shall not be less than [***].
[***]. For
Messenger and Hotmail Client Service Subscribers in [***],
Company will pay to Microsoft [***]
of Base Offering per Active User per month, plus [***]%
of any VAS generated by Messenger and Hotmail Active Users. The
revenue share attributable to Microsoft (after adding Microsoft’s revenue share
of base offering and Microsoft’s revenue share of VAS) shall not be less than
[***].
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
20
-
Final Execution Copy -
Non-Priority
Territories. For Messenger and Hotmail Client Service
Subscribers in Non-Priority Territories, Company will pay to Microsoft [***] per
Active User per month plus 65% of any VAS generated by subscribers of the
Messenger and Hotmail Client Service.
Targets and Minimum
Commitments. Subject to Microsoft’s compliance with Section
3.5(a) of the Agreement, Company will generate a minimum number of net new
Messenger and Hotmail Client Service Subscribers and Active Users per month
(“Target”) over the term of the Agreement. The Targets are set out
below (and are subject to Sections 3.2(b) and 3.5(e) of the
Agreement) For any given month, in the case that Microsoft has
so entered into the MSN Mobile Services Marketing Agreement promptly with each
Carrier as described above and the actual number of Messenger and Hotmail Client
Service Subscribers and Active Users is less than Target, Company shall pay to
Microsoft no less than Target times [***].
| 2005 | ||||||
|
Month
|
Oct
|
Nov
|
Dev
|
|||
|
Net
New Subs (k)
|
[***]
|
[***]
|
[***]
|
|||
|
Cum
Subs (k)
|
[***]
|
[***]
|
[***]
|
|||
|
Min
Payment ($k)
|
[***]
|
[***]
|
[***]
|
]
|
2006
|
||||||||||||||||||||||||
|
Month
|
Jan
|
Feb
|
Mar
|
Apr
|
May
|
Jun
|
Jul
|
Aug
|
Sep
|
Oct
|
Nov
|
Dec
|
||||||||||||
|
Net
New Subs (k)
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
||||||||||||
|
Cum
Subs (k)
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
||||||||||||
|
Min
Payment ($k)
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***[
|
|
2007
|
||||||||||||||||||||
|
Month
|
Jan
|
Feb
|
Mar
|
Apr
|
May
|
Jun
|
Jul
|
Aug
|
Sep
|
|||||||||||
|
Net
New Subs (k)
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
MSNP
to
|
||||||||||
|
Cum
Subs (k)
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
MSP | ||||||||||
|
Min
Payment ($k)
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
Migration |
Microsoft
has agreed that Company may deploy MSN Mobile Services over the MSN Protocol
(“MSNP”) in order to accommodate certain Carrier launches. Company
has agreed to migrate from MSNP to MSP by October 1, 2005 and any launches after
October 1, 2005 must use MSP. Furthermore, Company shall make
reasonable commercial effort to transition existing MSNP customers to MSP by
October 1, 2005.
|
8.
|
EFFECT OF TERMINATION OR
EXPIRATION.
|
In the
event of termination or expiration of this Service Schedule for any reason all
Sections in this Service Schedule shall survive except for Section 1. Upon
termination or expiration of the Agreement or this Service Schedule, as
applicable, Company shall (i) immediately cease providing the Client Services;
and (ii) within fifteen (15) days of such termination or expiration, return to
Microsoft all full or partial copies of the documentation provided by Microsoft
under this Service Schedule. Upon termination or expiration, Company
shall upon written request from Microsoft ensure that all further distribution
of Clients to Subscribers is terminated, including without limitation
distribution of Clients to Subscribers via Carriers, but excluding any devices
that have already shipped from Customer’s factory.
|
9.
|
RELATIONSHIP
TO AGREEMENT.
|
This
Service Schedule amends and supplements the Agreement with respect to the
matters addressed herein. If there are any inconsistencies between a
provision of this Service Schedule and a provision of the Agreement with respect
to the matters covered by this Service Schedule, the provisions of this Service
Schedule shall control but only with regard to the subject of the
inconsistency.
IN
WITNESS WHEREOF, the parties have duly executed and delivered this Service
Schedule as of the Schedule Date.
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
21
-
Final Execution Copy -
|
IXI
Mobile,
Inc.
|
Microsoft
Corporation
|
|||
|
By
(sign):
|
By
(sign):
|
|||
|
Name
(print):
|
Name
(print):
|
|
Title:
|
Title:
|
|
Date:
|
Effectuve Date:
|
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
22
-
Final Execution Copy -
Exhibit A
“Territory and
Carriers”
Territory
Company
may engage in discussions with Carriers in any country in the world for the
purposes of reselling MSN Mobile Services.
For the
purpose of this agreement, Priority Territory means [***].
Carriers
Subject
to Section 3.5 of the main body of the Agreement, Company is authorized to enter
into Carrier Agreements with the following Carriers:
|
Territory
|
Carrier
|
|
|
[***]
|
[***]
|
|
|
[***]
|
[***]
***]
[***]
|
|
|
[***]
|
[***]
[***]
[***]
|
|
|
[***]
|
[***]
|
|
|
[***]
|
[***]
[***]
|
|
|
[***]
|
[***]
|
|
|
[***]
|
[***]
|
|
|
[***]
|
[***]
|
|
|
[***]
|
[***]
[***]
|
|
|
[***]
|
[***]
[***]
|
|
|
[***]
|
[***]
|
|
|
[***]
|
[***]
|
|
|
[***]
|
[***]
|
|
|
[***]
|
[***]
[***]
[***]
|
|
|
[***]
|
[***]
|
|
|
[***]
|
[***]
|
|
|
[***]
|
[***]
|
|
|
[***]
|
[***]
|
|
|
[***]
|
[***]
|
Microsoft
may modify the list of Carriers from time to time in consultation with
Company.
If
Company wishes to modify the list of Carriers, Company will submit a request to
the Microsoft Designation Manager. Microsoft shall either approve or
reject such proposed modification and make commercially reasonable efforts to
respond to Company within ten (10) working days of Company’s date of such
proposal. Microsoft shall not unreasonably withhold or unduly delay
its approval to a change request.
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
1
-
Final Execution Copy -
Exhibit
B
[Intentionally
Left Blank]
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
1
Exhibit
C
“MSN
Mobile Services Partner Operations and Support Guide”
|
1.
|
Purpose
and Scope of this Document
|
This is
intended to provide Company and Microsoft with clear expectations around service
escalation processes. Capitalized terms not defined in this exhibit shall have
the meaning assigned to them in the Agreement. This document will be posted in a
shared location and may be updated on a regular basis.
1.1.
Span of
Control
Each
Party shall only be responsible for those aspects, components, inputs, and
interfaces of their respective Services that fall directly under the control of
its own infrastructure and personnel up to the Service Border (as defined
below).
“Service Border” is defined as the
farthest network egress point to the public Internet that is entirely under the
direct control of each party. This is the farthest edge of the
Services where each Party has direct control over and will accept responsibility
for service quality, availability, and performance.
The
following are outside the Span of Control and will release both parties from the
obligations set forth in this Exhibit:
• An
outage of services that is due to the failure or non-performance of any
equipment, connections, or services that are not under the direct control or
supervision of each party, partner, or their respective employees, contractors,
or subcontractors; such services include without limitation peer-to-peer
Internet service provider routing, or third party data center
failure.
• Any
other events of force majeure as defined in the Agreement.
|
|
1.2.
|
Service
Reviews
|
The
following meetings are typically scheduled with MSN partners that have a Support
Account Manager (▇▇▇) assigned to them.
Table
1
|
[***] Service
Reporting
|
||||
|
Attendees
|
Objectives
|
Deliverables
|
||
|
Company:
· Partner Technical
Representative
· Partner Service
Representative
· Other appropriate
representatives
Microsoft
as necessary:
· ▇▇▇
or support staff
· Partner
Operations Manager
· Product
unit members
· Account
manager
· Business
& operations representatives
|
· To
report incident metrics for period
· To
review ongoing issues
· Report
to be delivered via email by [***].
|
Microsoft:
· [***]
MSN Service metrics report
Company:
·
Monthly metrics such as Company support metrics, Company
measurements of MSN Services, etc.
Shared:
·
Process Issues List
·
Support Incident List
|
||
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
-
Final Execution Copy -
Table
2
|
Service
Review Meeting ([***])
|
||||
|
Attendees
|
Objectives
|
Deliverables
|
||
|
Company:
· Partner Technical
Representative
· Partner Service
Representative
· Other appropriate
representatives
Microsoft
as necessary:
· ▇▇▇
or support staff
· Partner
Operations Manager
· Product
unit members
· Account
manager
· Business
& operations representatives
|
·
To review aggregated [***] performance reports with Senior
Management
·
To review customer satisfaction metrics
· To
consider and initiate changes to the support agreement.
|
Microsoft:
· Service
Review Scorecard / Presentation
Company:
·
Service Review Scorecard / Presentation
Shared:
· Process Issues
List
|
||
Table
3
|
Term
|
Definition
|
|
|
Working
day
|
Mo
- Fr with the exception of local and US public holidays from 0800 to 1800
hours PST.
|
|
|
1st
level Support
|
Support
services provided to Subscribers by the Company’s customer service
department.
|
|
|
2nd
level Support
|
Support
services provided to the
Company’s customer service department by Company.
|
|
|
3rd
level Support
|
Support
services provided to Company by
Microsoft as further detailed
below.
|
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
3
-
Final Execution Copy -
|
2.
|
Microsoft
/ Company Service Definitions
|
|
|
2.1.
|
Support
Model
|
|
|
a.
|
Company
will be the primary customer support contact for the Services including
any partners, agencies, and intermediaries that the Company establishes a
relationship with in regard to running the
Services.
|
|
|
b.
|
Microsoft
will provide Company with such training and tools as Microsoft deems
appropriate, including but not limited to the Mobile Manager (as defined
below), to assist Company in its provision of support to Subscribers as
provided herein.
|
|
|
i)
|
Microsoft
will provide training instruction and content to Company training staff
from time to time as determined by
Microsoft.
|
|
|
ii)
|
It
is Company’s responsibility to train its partners, agencies, and
intermediaries that Company deems appropriate to receive such
training.
|
|
|
iii)
|
Company
shall not grant administrative rights to partners, agencies, and
intermediaries for any Microsoft provided tools. Company will be
responsible for managing access lists for the tools including the removal
of any party who no longer requires access as part of its normal job
function at the Company, its partners, agencies, or
intermediaries.
|
|
|
iv)
|
Company
will provide Microsoft with notification of any parties who have received
training on Microsoft provided tools. Company will also require any
partner, agency, or intermediary to sign a Microsoft terms of use prior to
granting access to the tools. Company will forward copies of all executed
terms of use to Microsoft.
|
|
|
v)
|
Microsoft
reserves the right to deny access to any party of any tools if Microsoft
in it sole discretion determines that the terms of use have been
violated.
|
|
|
c.
|
If
Company is unable to resolve a Subscriber incident (after having made
commercially reasonable efforts to do so), such incident may be escalated
to MSN Services Partner Support, pursuant to the reporting process
procedures in Table
5 below.
|
|
|
d.
|
Microsoft
will provide Company with access and training for the Premier Online tool
(MSN Services Partner Support escalation
tool).
|
|
|
2.1.1.
|
Mobile
Manager Description:
|
|
|
a.
|
The
MSN Mobile Manager is a web-based support tool that houses the account
information and settings of subscribers to MSN mobile services, and logs
their account activities.
|
|
|
b.
|
Company
may use Mobile Manager during the Term solely as may be necessary to
enable Company to provide customer support for the MSN Mobile Services,
and must take reasonable steps to prevent unauthorized access to or use of
Mobile Manager, including, but not limited to, restricting access to
customer support agents whose job functions require such
access.
|
|
|
c.
|
Access
is controlled by Microsoft Passport. Company will provide Microsoft
Passport names to its customer support agents who provide technical
support of the MSN Mobile Services.
|
|
|
2.1.2.
|
Premier
Online Description:
|
|
|
a.
|
Premier
Online is a web-based support tool that allows external support partners
an electronic method of escalating support incidents directly into the MSN
Services Partner Support group.
|
|
|
·
|
Except
as specified herein, Company’s use of Premier Online for purposes of these
operational support procedures will not entitle Company to make use of
Premier Support content or other services that may be made generally
available to Premier members via Premier
Online.
|
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
4
-
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|
|
b.
|
Microsoft
Premier Online requires Microsoft Passport and a separate online support
account number and password to validate
access.
|
|
|
2.1.3.
|
MSN
Service Partner Support
|
The MSN
Services Partner Support team will serve as an interface between Company Senior
Technical Support and Operations Group and Microsoft for the support of the MSN
Services. This arrangement provides Company with access to a single
point of contact for reporting incidents, receiving updates and handling
escalations. All written and verbal communication with MSN Services
Partner Support will be in English. The following table provides the MSN
Services Support hours of operation and contact information.
Table
4
|
Hours
of Operation
|
24
hours a day, 7 days a week, 365 days a year
(“7/24/365”)
|
|
Contact
Information
|
MSN
Services Partner Support
·
Online: ▇▇▇▇▇://▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇
·
North America 800 Number is
·
International 425 Toll Number
is
|
Microsoft
will also provide a Support Account Manager (“▇▇▇”) to facilitate escalations of
incidents.
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
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|
3.
|
Support
Procedures
|
|
|
3.1.
|
Incident
Resolution Responsibilities
|
|
|
a.
|
Incident
resolution requires teamwork between Microsoft and Company. One
element in this teamwork approach is Company’s understanding of the MSN
Services. In order to facilitate Company’s understanding of the
MSN Services, Microsoft will provide initial training materials to Company
for use so that each Subscriber call can be successfully dispatched and
resolved as quickly as possible by
Company.
|
|
|
b.
|
Section
5.1 (MSN to Provide) and 5.2(Company to Provide) of this exhibit contain
flow charts reflecting an overview of the Incident Escalation
Process.
|
|
|
c.
|
All
incidents concerning failures of the MSN Services that cannot be resolved
by Company representatives (after having made reasonable efforts to do so
pursuant to the procedures set forth herein) will be reported to MSN
Services Partner Support, pursuant to the reporting process procedures
outlined below.
|
|
|
d.
|
Any
reported incident that has been deemed as having been caused by a failure
outside Microsoft’s provision of the MSN Services will be returned to
Company with an appropriate explanation. Should Microsoft
determine that an incident being worked by MSN Services Partner Support is
within the control of Company and outside of Microsoft’s control, the
incident will be closed and returned to Company for proper
resolution.
|
|
|
e.
|
For
Severity A and B incidents, Microsoft will use commercially reasonable
efforts to resolve the problem as promptly as
possible. Resolution of problems determined by Microsoft to be
of Severity C or D may be delayed until future releases of the service or
may not be fixed. If the solution provided cannot be agreed to
by both parties, appropriate business escalation contacts should be
engaged as defined in section 5.3 (Business Issue Escalation Contacts) of
this exhibit.
|
|
|
3.2.
|
Company
Responsibilities
|
The
following section identifies the responsibilities of Company under this support
model.
|
|
3.2.1.
|
General
Responsibilities
|
|
|
a.
|
Company’s
customer support agents shall understand and be able to explain all
features and services that are available to the Subscriber via the
Services.
|
|
|
b.
|
Company
shall answer all partners, agencies, intermediaries, and Subscribers’
questions regarding the Services and resolve all minor issues such as
locking and unlocking accounts, deleting accounts and resetting
confirmation code retries.
|
|
|
3.2.2.
|
Incident
Responsibilities
|
|
|
a.
|
Company
will gather pertinent information regarding the incident, including the
Subscriber name, number, and any other additional information that Company
deems important to the prompt resolution of the incident (described in
more detail in Section 4.2 (Mandatory Information for Incident Reporting)
of this exhibit).
|
|
|
b.
|
Company
will provide any necessary translation of information about the issue into
English prior to submitting to Microsoft. Company will also be responsible
for translating any resolution information from Microsoft into any
required local language that is needed by their partners, agencies, or
intermediaries.
|
|
|
c.
|
Company
will create a trouble ticket that clearly states the nature of the
incident and will assign a tracking number to the incident (the “Tracking
Number”).
|
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
6
-
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|
|
d.
|
Company
will enter all incident notes into the same trouble ticket within its
trouble ticketing system, about any subsequent conversation which it has
with the Subscriber relative to the
incident.
|
|
|
e.
|
Company
will provide all trouble ticket information to Microsoft upon
request.
|
|
|
f.
|
Company
will “own” the resolution of an incident by virtue of its role of
coordinating the resolution within its own operational and technical
environment and with Microsoft.
|
|
|
g.
|
Company
will be able to explain the resolution of the incident to a technical
peer, or will be capable of targeting the root technical problem for
resolution.
|
|
|
h.
|
Company
will be able to explain the resolution of particular escalated trouble
tickets to its own internal staff members when such an explanation may
have the potential for reducing the volume and categories of escalated
trouble tickets.
|
|
|
3.2.3.
|
Technical
Responsibilities
|
|
|
a.
|
Company’s
customer support personnel will understand and be knowledgeable about
problems that may arise during a Subscriber’s usage of the MSN Mobile
Services and other MSN Services.
|
|
|
b.
|
Company’s
customer support personnel will understand and be knowledgeable with
respect to the functionality of wireless telephones and other devices from
which Subscribers will be able to access the MSN
Services.
|
|
|
c.
|
Company’s
customer support personnel will understand and be knowledgeable about
e-mail notification systems and the Internet to the degree that such
understanding and knowledge is relevant to the resolution of incidents
which may arise from a Subscriber’s use of the MSN
Services.
|
|
|
d.
|
Company’s
customer support personnel will understand and be knowledgeable about
Company, partner, agency and intermediary network operations, and be
capable of reasonably discerning that an incident is internal to those
operations before identifying the incident for escalation to
Microsoft.
|
|
|
3.3.
|
Incident
Management
|
The MSN
Services Partner Support group will coordinate incident isolation, testing and
repair work within Microsoft. During the incident isolation and troubleshooting
process, MSN Services Partner Support will communicate incident resolution
progress to Company as specified in the “Incident Definitions and Handling
Process” table below. Additionally, MSN
Services Partner Support will proactively inform Company when an issue or
condition arises that may cause potential system anomalies and which are a
potential source for the creation of trouble tickets. The table below outlines
the preferred method of communications, however, nothing herein precludes
Company from contacting MSN Services Partner Support by all applicable means set
forth in these procedures.
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
7
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|
|
3.3.1.
|
Incident
Definitions and Handling Process
|
The
initial severity assigned to an incident may be adjusted up or down, as
appropriate, after consideration of new and changed factors related to the
status of the service request.
Table
5
|
Company
Incident
Level
|
MSN
Support
Severity
|
Description
|
Submission and
Update method
|
Microsoft Response
Goals
|
||||
|
TBD
|
|
Severity
A
|
|
System,
network, server, or critical application problem that prevents or
unreasonably delays ALL subscribers from
accessing or using the Microsoft Service for more than [***].
· Issue
resulting in impaired security of the network
· A
reoccurring temporary outage of a critical service
·
Inability to provision a service
·
Inability to access support tools
· Loss of
data
|
|
Submission:
· Premier
Online*
· 24/7
Phone
Updates:
·
Phone
· Premier
Online
· Email
Response
|
|
Ticket Generation:
·
Open support incident and initiate trouble shooting immediately
upon notification from Company.
·
Ticket number provided for Company reference.
Initial Response:
· First
Update within [***]
Updates:
·
Subsequent updates every [***] [.or as
needed.]
·
Microsoft will update the Company with the following
information as available:
o Services affected.
o Start time of incident.
o Current status of repair.
o Impact on the subscriber for all
incidents in progress.
o Description of service or aspect of service
that is unavailable.
o Estimated Time of Repair
(ETR).
|
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
8
-
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|
Company
Incident
Level
|
MSN
Support
Severity
|
Description
|
Submission and
Update method
|
Microsoft Response
Goals
|
||||
|
TBD
|
|
Severity
B
|
|
System,
network, server, or application problem that prevents or unreasonably
delays many Subscribers from accessing or using the service.
·
A reoccurring temporary outage of a service
·
Sporadic behavior of a provisioning service
·
Stale content
·
Sporadic access to support tools
·
Recent modifications to the system that cause the services to
operate in a way that is materially different from those described in the
product definition for non-essential features.
|
|
Submission:
·
Premier Online
Updates:
·
Premier Online
·
Email Response
|
|
Ticket Generation:
·
Open ticket upon notification from Company.
·
Ticket number provided for Company reference.
Initial Response:
·
First update within
[***]
Updates:
·
Subsequent
updates every [***] or as needed.
·
Microsoft will update the Company with the following information as
available:
o
Services affected.
o
Start time of incident.
o
Current status of repair.
o
Impact on the subscriber for all incidents in
progress.
o
Description of service or aspect of service that is
unavailable.
o
Estimated Time of Repair
(ETR).
|
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
9
-
Final Execution Copy -
|
Company
Incident
Level
|
MSN
Support
Severity
|
Description
|
Submission and
Update method
|
Microsoft Response
Goals
|
||||
|
TBD
|
|
Severity
C
|
|
Service
issues identified as follows:
·
Defined as single user issue.
·
Small user base issues that do not have a significant impact
on the service.
|
|
Submission:
·
Premier Online
Updates:
·
Premier
Online
·
Email
Response
|
|
Ticket Generation:
·
Open support incident upon notification from Company.
·
Incident number provided for Company reference.
Initial Response:
·
First update
within [***]
Updates:
·
Subsequent updates as
needed.
·
Microsoft will update Company with the following information
as available:
o
Services affected.
o
Start time of incident.
o
Current status of repair.
o
Impact on the subscriber for all incidents in
progress.
o
Description of service or aspect of service that is
unavailable.
o
Estimated Time of Repair
(ETR).
|
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
10
-
Final Execution Copy -
|
Company
Incident
Level
|
MSN
Support
Severity
|
Description
|
Submission and
Update method
|
Microsoft Response
Goals
|
||||
|
TBD
|
|
Severity
D
|
|
Project
level tracking or incident in monitoring status
|
|
·
Existing cases
that have been demoted for tracking purposes.
·
Partners
cannot submit cases at this severity.
|
|
Ticket Generation:
·
Incident demoted for tracking purposes.
Updates:
·
Subsequent updates as
needed.
·
Microsoft will update the Company with the following information as
available:
o
Services affected.
o
Start time of incident.
o
Current status of repair.
o
Impact on the subscriber for all incidents in
progress.
o
Description of service or aspect of service that is
unavailable.
o
Estimated Time of Repair (ETR).
|
|
|
·
|
Severity
B incidents are the only severity that can be created online. The
preferred method for submitting severity A incidents is to first submit a
severity B incident online and then contact MSN Services Partner Support
via telephone to increase the incident severity to
A.
|
In this
context, “initial response” means the first contact provided to Company by MSN
Services Partner Support after a service request is submitted by one of the
Company’s assigned technical contacts and has been logged into the MSN Services
Partner Support case management tool. The initial response from MSN Services
Partner Support may be in the form of an email, phone call or personal
acknowledgement and will contain the support incident number for tracking
purposes.
The term
“updates” here means any communication between the Microsoft support team and
Company where status or a plan of action for the problem case number is
communicated.
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
11
-
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4.
Incident Reporting Process
|
|
4.1.
|
Communicating
Incidents
|
Company
will communicate incidents to Microsoft in the following manner. The
procedure outlined below is the preferred method of communications, however,
nothing herein precludes Company from contacting MSN Services Partner Support by
all applicable means set forth in these procedures.
|
|
a.
|
Company
will send a trouble ticket (including a Tracking Number) to Microsoft via
the web using Microsoft Premier Online. An incident process
flow is detailed in section 5, Escalation Management
Process.
|
|
|
b.
|
The
classification of the trouble ticket will be set based upon the criteria
outlined in Table 5, “Incident Definitions and
Handling Process above.
|
|
|
c.
|
Microsoft
will generate a single response for each trouble ticket that is received
from Company to confirm receipt of the incident
report.
|
|
|
4.2.
|
Mandatory
Information for Incident Reporting
|
For each
Incident, Company is required to provide Microsoft with information that will
facilitate timely problem determination and resolution. Upon
notification of the incident, the mandatory information will be
verified. If any information is missing, the incident will be
returned to Company requesting completion of the mandatory
information. Microsoft will begin investigating the incident as soon
as possible after receipt of the initial trouble ticket, however, until
Microsoft has received all necessary information, Microsoft may be unable to
begin resolving the incident and providing feedback to Company as described
above in “Communicating
Incidents.”
Company
should provide MSN Services Partner Support with the following information for
all reported incidents:
|
|
a.
|
Title:
Include name of carrier followed by short description (Ex: CARRIER: short description of
problem )
|
|
|
b.
|
Severity
of the incident (Sev A-B) (Partner will
provide):
|
|
|
c.
|
Subscriber’s
name:
|
|
|
d.
|
Subscriber’s
min:
|
|
|
e.
|
Any
other additional information about the Subscriber that Company deems
important to the prompt resolution of the
incident:
|
|
|
f.
|
Subscriber's
Passport username/ID (NEVER INCLUDE CUSTOMER'S PASSPORT
PASSWORD):
|
|
|
g.
|
The
Tracking Number assigned by Company in their ticketing
system:
|
|
|
h.
|
Time
and date of the transaction in
question:
|
|
|
i.
|
Subscriber’s
location:
|
|
|
j.
|
<Handset
type>:
|
|
|
k.
|
Software
version:
|
|
|
l.
|
Detailed
description of the incident:
|
|
|
m.
|
Troubleshooting
done:
|
|
|
n.
|
Other
comments:
|
|
|
o.
|
Partner
contact name/number/email:
|
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
12
-
Final Execution Copy -
|
|
5.
Escalation Management Processes
|
|
|
5.1.
|
MSN’s
Technical Issue Escalation Process
|
|
|
5.1.1.
|
Escalation
Steps
|
1. Company’s
partner gathers information from Subscriber regarding MSN Services related
incident and does initial troubleshooting.
2. Company
gathers information from the partner regarding MSN Services related incident and
performs appropriate actions pursuant to Company’s “Incident Responsibilities”
defined above.
3. If
Company is unable to resolve a Subscriber incident (after having made
commercially reasonable efforts to do so), such incident will be escalated to
MSN Services Partner Support. Company will escalate incident using Premier
Online and Microsoft contact information pursuant to the reporting process
procedures defined in “Incident
Definitions and Handling Process” and “Technical Issue Escalation
Contacts”.
4. MSN
Services related incidents escalated by Company to MSN Services Partner Support
will have a support incident created in Microsoft’s Incident Management
System.
5. Microsoft’s
Global Escalation and Solutions Team (GEST) will accept the incoming support
incident.
6. GEST
will validate incident repro steps provided by Company, perform initial
troubleshooting, offer resolution if possible and triage the incident for
escalation as necessary.
7. GEST’s
escalation triage of an incident includes determining whether the incident is
related to the operations of MSN Services or a problem with an MSN
Product.
|
|
7a.
|
Issues
with the operations of MSN Services are escalated by GEST to the MSN
Operations team.
|
|
|
7b.
|
Issues
with an MSN Product are escalated by GEST to the MSN Product
Group.
|
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
13
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|
|
5.1.2.
|
Escalation
Flow Diagram
|
|
|
5.1.3.
|
Technical
Issue Escalation Contacts
|
For
technical issues, the following escalation list should be used.
Microsoft/IXI
Mobile, Inc.
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and Confidential
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Table
6
|
Escalation
|
Within Microsoft
|
|||||
|
Order
|
Trigger
|
Contact
|
Details
|
|||
|
1
|
Incident
Submission
|
MSN
Services Partner Support: Global Escalation and Solution Team
(GEST)
· Premier
Online:
o
▇▇▇▇▇://▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇
· GEST 24/7
Phone:
oToll Free:
oToll:
|
Severity A:
·
Preferred
Submission: Submit incident
through Premier Online as Severity B, then contact GEST via 24/7 number to
escalate incident to Severity A.
·
Alternate
Submission: Submit incident by
directly contacting GEST via 24/7 phone number.
Severity B:
·
Submit incident
through Premier Online.
|
|||
|
2
|
No
response from GEST within Initial Response goal
|
GEST
24/7 Phone
|
Contact
GEST team for update via 24/7 phone and request that the on-duty tech lead
or manager be paged.
|
|||
|
3
|
No
satisfaction from GEST response
|
Program
Manager
MSN
Partner Support
Desk:
Mobile:
|
·
If unsatisfactory or
no response from GEST, escalate to ▇▇▇.
·
Contact ▇▇▇ either
directly or contact GEST via 24/7 phone to have the ▇▇▇
paged.
|
|||
|
4
|
No
response from PM
|
Group
Program Manager
MSN
Partner Support
o
o
Desk:
o Mobile:
|
||||
5.2.
Company
Technical Issue Escalation Process
|
|
5.2.1.
|
Escalation
Steps
|
|
|
5.2.2.
|
Escalation
Flow Diagram
|
|
|
5.2.3.
|
Escalation
Contact Table
|
Table
7
|
Escalation
|
Within Partner
|
|||||
|
Order
|
Trigger
|
Contact
|
Details
|
|||
|
1
|
Incident
Submission
|
<TBD>
|
<TBD>
|
|||
|
2
|
No response to
GEST
|
<TBD>
|
<TBD>
|
|||
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
15
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|
Escalation
|
Within Partner
|
|||||
|
Order
|
Trigger
|
Contact
|
Details
|
|||
|
3
|
<TBD>
|
<TBD>
|
<TBD>
|
|||
|
4
|
<TBD>
|
<TBD>
|
<TBD>
|
|||
|
5
|
<TBD>
|
<TBD>
|
<TBD>
|
|||
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
16
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5.3.
Business
Issue Escalation Contacts
Service
issues that remain unresolved by either Company or Microsoft must be escalated
in sequence to organizational members to raise the visibility of problematic
issues. Each escalation requires an assessment of the problem and recommendation
on next steps. Progress or lack of must be reported to all parties and
additional remediation steps called out to be followed. If the issue is remains
unresolved, an exit strategy for the issue must be called out by the management
team.
For
non-technical issues, the following escalation list should be used.
Table
8
|
Escalation
Order
|
Within Microsoft
|
|||
|
Contact
|
Details
|
|||
|
1
|
Support
Account Manager (▇▇▇)
MSN
Partner Support
|
|||
|
2
|
Support
Program Manager (SPM)
MSN
Partner Support
|
|||
|
Partner
Operations Manager (POM)
MSN
Operations
|
||||
|
Deployment
Program Manager
MSN
Mobile Product Group
|
||||
|
3
|
Partner
Manager
MSN
Partner Management
|
|||
|
Group
Program Manager
MSN
Partner Support
|
||||
|
Group
Program Manager, Deployment
MSN
Mobile Product Group
|
||||
|
Group
Program Manager,
MSN
Partner Operations
|
||||
|
4
|
Director
MSN
Partner Operations
|
|||
|
Director
MSN
Partner Support
|
||||
|
General
Manager
MSN
Mobile Product Group
|
||||
|
Director
(or Senior Director)
MSN
Partner Management
|
||||
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
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Table
9
|
Escalation
Order
|
Within Company
|
|||
|
Contact
|
Details
|
|||
|
1
|
TBD
|
|||
|
2
|
||||
|
3
|
||||
|
4
|
||||
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
18
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|
|
6.
Service Notifications and Change Control
Management
|
|
|
6.1.
|
Notifications
by Microsoft
|
Microsoft
will ensure that any planned maintenance events under its span of control will
be executed in a well-coordinated manner. Proper execution includes
advance notification, as stated in below, to Company.
|
|
6.1.1.
|
Service
Interruptions and Advanced Notification
Requirements
|
It
is expected that occasional downtime will be required to maintain and enhance
the MSN Services. Microsoft will provide Company with at least five
(5) business days advance notice of all planned maintenance activities that will
or could result in service interruptions, and that will have a direct impact on
the MSN Services.
Microsoft
will make commercially reasonable efforts to provide Company with at least
forty-eight (48) hours notice prior to any planned emergency outages of the
services running in production environments. For the pre-production
environments, Microsoft will make commercially reasonable efforts to provide at
least twenty-four (24) hours prior notice for planned outages. The
timeframes for notifications are summarized in the following table:
Table
10
|
Type
|
Notification Goal
|
|
|
Patch/Upgrade
|
Forty-Eight
(48) hours
|
|
|
Planned
Maintenance
|
Five
(5) business days
|
|
|
Major
Release
|
Two
(2) weeks
|
|
|
Unscheduled
or unplanned service incidents for Severity A issues
|
One
(1) Hour
|
|
|
Cancelling
Planned Maintenance
|
One
(1) Hour
|
|
|
6.1.2.
|
Communicating
Microsoft Service Interruptions
|
Microsoft
will make commercially reasonable efforts to send email notifications to Company
in the event that there is a severe degradation in the performance and/or
availability of any contracted service, as determined by Microsoft in good
faith.
MSN
Service outages will be classified by the following MSN Operations
priorities:
Table
11
|
MSN
Operations
Priority
|
MSN
Support
Severity
|
Description
|
Post Mortem
|
|||
|
Pri
1
|
Severity
A
|
High
Priority Outage
|
TAM
Provided
|
|||
|
Pri
2
|
Severity
B
|
Multi
User Issue
|
TAM
Provided upon partner request
|
|||
|
Pri
3
|
Severity
C
|
Single
User Issue
|
None
|
Company will not forward Microsoft
notifications directly to its partners, agencies, or intermediaries. Company
will ensure any contact information in the Microsoft services notification
refers Company’s partners, agencies, or intermediaries back to Company, and not
to Microsoft Services Partner Support.
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
19
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Final Execution Copy -
|
|
6.2.
|
Notifications
by Company
|
|
|
6.2.1.
|
Service
Interruptions and Advanced Notification
Requirements
|
|
|
a.
|
If
it is necessary for Company to suspend service which causes an outage for
scheduled maintenance, Company shall give no less than five (5) working
days notice of such maintenance.
|
|
|
b.
|
For
Company significant marketing or new product launch events, Company should
request from Microsoft dates of planned service upgrades or maintenance
activities which could negatively impact Company’s event. Company should
provide at least 30 days notice and must recognize that activities already
planned by Microsoft may not be able to be
moved.
|
|
|
6.2.2.
|
Unplanned
Service Interruption Notification from
Company
|
If it is
necessary for Company to suspend service which causes an outage for scheduled
maintenance, Company shall give no less than five (5) working days notice of
such maintenance.
|
|
6.2.3.
|
Canceling
Planned Service Interruptions
|
In the
event that Company needs to cancel a planned service interruption, Company
should attempt to notify Microsoft at least one (1) hour prior to the scheduled
start time of the maintenance window
|
|
6.2.4.
|
Communicating
Partner Service Interruptions
|
Company
will communicate Company planned and unplanned service incidents to Microsoft
according to the following procedure:
|
|
a.
|
Company
will contact Microsoft as specified in “Escalation
Management”.
|
|
|
b.
|
Escalations
should be accompanied by reference incident information to
include:
|
|
|
·
|
Incident
Case ID
|
|
|
·
|
Services
affected.
|
|
|
·
|
Start
time of incident.
|
|
|
·
|
Current
status of repair.
|
|
|
·
|
User
impact.
|
|
|
·
|
Summary
of actions taken to resolve problem
|
|
|
·
|
Steps
needed to reproduce problem
|
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
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|
7.
|
Reporting
|
|
7.1.
|
Post-Mortem
Reports
|
The
purpose of the Post-Mortem Report is to identify the origin of an incident and
corrective actions which can be taken to prevent its
reoccurrence. Post-Mortem Reports shall be limited to incidents
classified as Severity A and B, unless otherwise agreed to by the Parties.
Microsoft may, at its option, provide Company with a post mortem report
following a Severity A or B incident.
Root
Cause Analysis will be delivered to Company as soon as practicable by Microsoft.
Microsoft will provide a written Post Mortem report for Microsoft Severity A
incidents within 3 business days of close of the engineering incident Post
Mortems. Post mortems will be delivered by ▇▇▇ or Operations contact during
regularly scheduled meetings or other mutually agreed to time.
|
7.2.
|
MSN
Services Support Metrics Reports
|
Each
month, Microsoft will provide Company with a report identifying the following
information:
|
|
1.
|
The
total number of incidents opened and closed each month, segregated by
severity level,
|
|
|
2.
|
The
number of Severity A and Severity B incidents created, segregated by MSN
Service, and
|
|
|
3.
|
The
outstanding open incidents from the previous month, if
any.
|
|
7.3.
|
Company
Support Metrics
|
Each
month Company should provide Microsoft with a report identifying the following
information: <Review reporting abilities with
each partner>
|
|
1.
|
The
total number of customer care incidents created each
month.
|
|
|
2.
|
The
total number of MSN related incidents created each
month.
|
|
|
3.
|
The
total number of tickets escalated to MSN Services Partner
Support.
|
|
|
4.
|
The
top incident categories for Microsoft and numbers of incidents per
category. (eg. client issues, error messages, setup or configuration,
passport issues, hotmail question)
|
|
|
5.
|
MSN
customer satisfaction rating (survey – every 6
months)
|
|
|
6.
|
Company
satisfaction rating (survey – every 6
months)
|
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
21
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Final Execution Copy -
Exhibit
D
“Marks”
A. Microsoft
Marks
& Guidelines:
|
1.
|
The Microsoft Marks shown above
may be used solely on promotional and marketing
materials regarding the Services, as such are more fully described in the
Marketing Plan.
|
|
2.
|
Company’s
name, logo, or trademark must appear on any materials where the Microsoft
Marks are used, and must be larger and more prominent than the Microsoft
Marks.
|
|
3.
|
The Microsoft Marks may not be
used in any manner that expresses or implies Microsoft’s affiliation,
sponsorship, endorsement, certification, or approval, other than as
contemplated by this
Agreement.
|
|
4.
|
Company
shall not use the Microsoft Marks in association with any third party
trademarks in a manner that creates potential confusion as to ownership of
the Microsoft Marks.
|
|
5.
|
The
Microsoft Marks may not be included in any non-Microsoft trade name,
business name, domain name, product or service name, logo, trade dress,
design, slogan, or other trademark.
|
|
6.
|
The Microsoft Marks
may only be used as provided by
Microsoft. Except for size, the Microsoft Marks may not be
altered in any manner, including proportions, colors, elements, etc., or
animated, morphed, or otherwise distorted in perspective or dimensional
appearance.
|
|
7.
|
The Microsoft Marks may not be
combined with any other object, including, but not limited to, other
logos, words, graphics, photos, slogans, numbers, design features, or
symbols.
|
|
8.
|
The
Microsoft Marks must stand alone. A minimum amount of empty
space must surround the Microsoft Marks separating it from any other
object, such as type, photography, borders, edges, and so
on. The required area of empty space around the Microsoft Marks
must be X, where X equals ½ the height of the Microsoft
Marks.
|
|
9.
|
The
Microsoft Marks shall include the appropriate ™ and/or ® symbol(s) as
shown in this Exhibit.
|
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
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|
10.
|
The Microsoft Marks shall be
attributed to Microsoft Corporation in all materials where it is used,
with the attribution clause: “MSN, the MSN
Logo, and Hotmail are either trademarks or registered trademarks of
Microsoft Corporation in the United States and/or other
countries.”
|
B. Company Marks &
Guidelines:
|
11.
|
The Ogo, IXI Mobile and PMG logos
shall be used according to the corresponding
guidelines
|
Microsoft/IXI
Mobile, Inc.
Proprietary
and Confidential
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