NEXTEL ONLINE HANDSET PLACEMENT AGREEMENT
Exhibit
10.10
THIS
NEXTEL ONLINE HANDSET PLACEMENT AGREEMENT
(this
“Agreement”)
is
effective as of the Effective Date, by and between Nextel Finance Company.,
a
Delaware corporation (“Nextel”),
with
offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and the website operator
identified below (“Operator”).
Nextel,
with its Affiliates, owns and operates a wireless communications and data
service, including a service (the “Nextel
Online Internet Service”)
that
enables customers of the Nextel service to access and browse Internet content
via a wireless phone; Operator owns and operates a web site that provides
products and services to Operator’s customers and is or will be enabled for
access through wireless devices. Operator desires to have links to the Operator
Site included in the default configuration of Nextel’s handsets.
OPERATOR
SITE AND CONTACT INFORMATION
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Web
Site:
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▇▇▇.▇▇▇▇▇▇▇.▇▇▇/
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Wireless
Site:
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▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇
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Web
Site Operator:
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XSVoice,
Inc.
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Address:
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▇▇▇▇
▇▇▇▇ ▇▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
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Attention:
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▇▇▇▇
▇▇▇▇▇▇▇▇
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SCHEDULE
AND TERM
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Effective
Date:
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___________________
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Launch
Date:
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November
1, 2001
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Initial
Term:
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Effective
date through January 31,
2002
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By
signing below, the parties understand that they are entering into a binding,
legal agreement as of the Effective Date, consisting of all terms and conditions
and exhibits set forth above and attached hereto.
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OPERATOR:
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NEXTEL
FINANCE COMPANY:
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By:
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By:
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Signature
of Authorized Representative
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Signature
of Authorized Representative
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Print
Name and Title of Representative
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Print
Name and Title of Representative
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TERMS
AND CONDITIONS
(Definitions
are included in Section 10.)
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1.
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Link
Placements
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1.1.
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Handset
Link
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1.1.1.
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Placement.
Nextel agrees that during the Term the default configuration
for
Qualifying Handsets shall include a link to the Operator Wireless
Site
(the “Handset Link”).
The Handset Link shall be placed as determined by Nextel in its
discretion, subject to any additional placement requirements
set forth on
Exhibit B.
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1.1.2.
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Link
URL.
At least 30 days prior to the Launch Date, Operator will provide
to Nextel
the link URL to be used by Nextel, along with such technical
information
regarding the Operator Site as is reasonably requested by Nextel.
The
Handset Link URL will link to a landing page on the Operator
Wireless Site
that is fully WAP compliant, contains at least the features of
the
Operator Site identified on Exhibit
B,
will contain a unique identifier sufficient for Operator to track
and
identify traffic initiated through the Handset Link and otherwise
will be
as approved by Nextel.
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1.1.3.
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Approval.
Nextel reserves the right to terminate this Agreement prior to
the Launch
Date if Operator fails to provide adequate information regarding
the
Operator Site or if, in its discretion, Nextel determines that
the
Operator Site is not appropriate for a Handset Link. Any such
termination
shall be by written notice to Operator and neither party shall
have any
liability or obligation to the other, except pursuant to
Section 6
hereof, upon any such termination.
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1.2.
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Operator
Site Link
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1.2.1.
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Placement.
Operator agrees that during the Term it shall place a link to
the Nextel
Site on the Operator Site (the “Operator
Site Link”).
The Operator Site Link shall be placed as determined by Operator
in its
discretion, subject to any additional placement requirements
set forth on
Exhibit B.
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1.2.2.
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Link
URL.
At least 10 days prior to the Launch Date, Nextel will provide
to Operator
the Operator Site Link URL and suitable graphics to be used by
Operator.
The Operator Site Link URL will link to a landing page on the
Nextel Site
that is designated by Nextel and approved by Operator.
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1.3.
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Launch
Date.
Both parties shall use commercially reasonable efforts to launch
the
availability of the Handset Link on or before the Launch Date
specified on
the cover hereof (“Launch
Date”).
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1.4.
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Operational
Requirements.
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1.4.1.
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Service
Levels.
Operator shall maintain the Operator Site (including the Operator
Wireless
Site and any pages accessed through the Handset Link) and Nextel
shall
cause its appropriate Affiliates to maintain the Nextel Online
Internet
Service and the Nextel Site in accordance with the requirements
of
Exhibit
C.
The parties acknowledge that Nextel may redesign, delete or replace
any
aspect of the Nextel Online Internet Service or may redesign
or replace
the type or placement of links offered on the Qualifying
Handsets.
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1.4.2.
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Operator
Site Content.
Operator agrees that it shall only include the content and features
on the
Operator Wireless Site that are described on Exhibit
B.
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1.4.3.
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Advertising.
Operator agrees that, without Nextel’s prior written consent, it shall not
cause or permit any advertising to be served to or displayed
on any
Qualifying Handset except as set forth in Exhibit G and, in any
event,
shall not cause or permit any advertising for any wireless carrier
other
than Nextel to be served to or displayed on any Qualifying
Handset.
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1.4.4.
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Customer
Support.
Nextel shall be responsible for all customer support relating
to the
Nextel Online Internet Service and the telecommunications elements
of the
Nextel Online Internet Service. Operator shall be responsible
for all
customer support relating to Operator Content and the Operator
Site.
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1.5.
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Non-exclusivity.
The relationship provided for in this Agreement is nonexclusive
for both
parties.
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1.6.
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Support
Procedure.
Operator shall maintain and operate in accordance with reasonable
support
and problem resolution procedures and guidelines for resolving
problems
relating to the collaboration hereunder and to users’ access to the
Operator Wireless Site through the Handset Link (the “Support
Procedures”).
The Support Procedures will include at least (i) points of contact
for
incidents of varying severity; (ii) a commitment for internal
escalation
procedures for problem incidents; and (iii) notifications for
scheduled
downtime or modifications to the Operator Wireless
Site.
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2.
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Fees
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Operator
shall pay Nextel the fees as
described on Exhibit A. Unless otherwise provided on Exhibit A:
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2.1.
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Payment
Schedule.
Operator shall pay Nextel the amount due each calendar quarter
within
thirty (30) days of the end of the quarter. Operator shall
also
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deliver
to Nextel a report supporting the amount paid in reasonable
detail.
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2.2.
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Records
and Inspection Rights.
Operator shall keep and maintain proper records and books of
account
relating to the amounts payable hereunder. Nextel may inspect
such records
to verify rendered statements, but not more than twice in any
twelve (12)
month period. Any such inspection (an “Audit”)
will be conducted after reasonable notice and during regular
business
hours at Operator’s offices in a manner that does not unreasonably
interfere with Operator’s business activities. Any Audit shall be at
Nextel’s cost and expense; provided, however, if it reveals underpayments
in any quarterly period in excess of five percent (5%) of amount
actually
paid for such quarter, Operator shall pay the reasonable cost
of the
Audit. Operator shall immediately pay Nextel the amount of any
underpayment revealed by an Audit.
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3.
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Promotional
Commitments
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Both
parties agree to promote the availability of the Operator Content on the
Nextel
Online Internet Service in accordance with Exhibit
D.
In
addition, Nextel may (but shall not be required to) (i) include one or
more
links to the Operator Site on the Nextel Site and (ii) include a description
(including in such description Operator’s name and/or corporate logo) of the
services and features available on the Operator Site or through the Handset
Link
on the Nextel Site and in promotional and advertising materials regarding
Nextel
and the Nextel Online Internet Services.
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4.
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Use
of Trademarks
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Each
party grants the other a non-exclusive, nontransferable, royalty-free license
to
use, reproduce, distribute and display the trademarks described in Exhibit
Esolely
in
connection with (i) the display of Operator Content as part of the Nextel
Online
Internet Service in the United States, its territories and possessions
(ii) the
advertising and promotion of the availability of the Operator Content on
Nextel
Online Internet Service and (iii) the display of any links, as expressly
permitted hereunder between the Operator Site and the Nextel Site, provided
that
uses of such trademarks in advertising and promotion must be approved by
the
trademark owner in advance and are in compliance with the trademark owner’s
then-current trademark usage guidelines. Each party agrees that all uses
of the
other party’s trademarks will: (i) not alter the trademarks in any way; and (ii)
use the trademarks so that each of such trademarks creates a separate and
distinct impression from any other trademark that may be used by the other
party. Each party agrees that all uses of the other party’s trademarks,
including the goodwill and reputation associated therewith, will inure
to the
benefit of the other party.
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5.
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User
Data
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5.1.
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Operator
User Data.
Except as provided below, Operator has the exclusive right to
collect,
store and use all Operator User Data. Nextel acknowledges that,
as between
Operator on the one hand and Nextel and its Affiliates on the
other hand,
all Operator User Data shall be owned by
Operator.
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5.2.
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Nextel
User Data.
Except as provided below, Nextel has the exclusive right to collect,
store
and use all Nextel User Data. Operator acknowledges that, as
between
Operator and its Affiliates on the one hand and Nextel and its
Affiliates
on the other hand, all Nextel User Data shall be owned by Nextel.
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5.3.
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Collected
Data of the Other Party.
In the event that either party receives or has access to any
Collected
User Data of the other, such party agrees to comply with all
applicable
data privacy policies of the other covering User Data as such
may be
provided by from time to time, provided that neither party shall
be
subject to such restriction with respect to information provided
to it by
its customers, even if such information is also provided as Collected
User
Data to the other.
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5.4.
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Referral
Information.
Notwithstanding the foregoing, neither party may directly or
indirectly
disclose any Referral Information (as defined below), either
alone or
together with other information, to any third party, nor use
or permit any
other person or entity to use any Referral Information to specifically
target communication to end-users or to otherwise specifically
solicit
users. “Referral
Information”
means any information disclosing that a specific user linked
from an
Qualifying Handset to the Operator Wireless Site via the Handset
Link and
any personally identifying information about such specific user
(including
identification, individually or in the aggregate, as a customer
of Nextel
or its Affiliates) derived from such
linking.
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5.5.
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Reporting.
The parties will cooperate in sharing relevant user data about
the
collaboration contemplated hereunder. Such data will include
the reports
listed in Exhibit
F.
Notwithstanding the foregoing, neither party will be required
to disclose
or exchange any personally identifiable information about its
users or
customers. Information disclosed in such reports will be considered
Confidential Information of the disclosing party and may be used
by the
receiving party, its agents and contractors, for any internal
business
purpose (including for the purpose of marketing products and
services to
users and customers) of the receiving party and its Affiliates,
provided
that all such use shall be subject to applicable privacy policies
of the
disclosing party (the extent provided to the receiving party),
law and
regulations.
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5.6.
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User
Privacy.
Operator agrees to abide by Nextel’s policies regarding end-user privacy,
including the policies prohibiting unsolicited telephone calls
and SMS
messages to Nextel users without express and specific permission
from the
end-user.
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6.
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CONFIDENTIALITY
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6.1.
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Terms
and Conditions.
The terms and conditions of this Agreement will be considered
confidential
and will not be disclosed to any third parties except that the
same may be
disclosed to (i) a party’s employees, agents, representatives,
accountants, attorneys, and financial advisors subject to reasonable
confidentiality restrictions, and (ii) as otherwise required
by
law.
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6.2.
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Generally.
Each party acknowledges that Confidential Information may be
disclosed to
the other during the Term. As used herein, “Confidential Information”
means any and all information relating to or disclosed in the
course of
the Agreement, which is or should be reasonably understood to
be
confidential or proprietary to the disclosing party, including,
but not
limited to, trade secrets, marketing data, product and business
plans, and
unpublished financial information. During the Term and for a
period of
three years following expiration or termination of this Agreement
(or such
shorter period that is the longest period permitted by applicable
law),
each party shall use the same care to prevent disclosing to third
parties
the Confidential Information of the other party as it employs
to avoid
disclosure, publication, or dissemination of its own information
of a
similar nature, but in no event less than a reasonable standard
of care.
Except as contemplated by this Agreement, neither party shall
make any use
of the other party’s Confidential Information or refuse to promptly
return, provide a copy of, or destroy the other party’s Confidential
Information upon request of the other party. The receiving party
shall
immediately notify the disclosing party upon gaining knowledge
of any
disclosure, loss, or use of the disclosing party’s Confidential
Information in violation of this Agreement. Notwithstanding the
foregoing,
this limitation shall not apply to any information that the receiving
party can demonstrate: (i) was in the public domain at the time
of
disclosure to it; (ii) was published or otherwise became a part
of the
public domain, after disclosure to the receiving party, through
no fault
of its own; (iii) was in the possession of the receiving party
at the time
of disclosure to it from a third party who had a lawful right
to such
information and disclosed such information to it, without a breach
of duty
owed to the disclosing party; or (iv) was independently developed
by the
receiving party without reference to Confidential Information
of the
disclosing party.
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7.
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Limitation
Of Liability; Disclaimer.
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7.1.
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Limitation
of Liability.
EXCEPT FOR (I) BREACHES OF SECTION 6
OR
(II) THIRD PARTY LIABILITIES SUBJECT TO THE INDEMNITY PROVISIONS
OF
SECTION 8,
UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ITS RESPECTIVE AFFILIATES
BE
LIABLE TO THE OTHER PARTY FOR LOST PROFITS, OR FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES
ARISING
FROM THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE
TYPE OF CLAIM
AND EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH
DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS. IN THE EVENT OF A BREACH OF ANY OF
THE TERMS OF
THIS AGREEMENT BY NEXTEL, OPERATOR’S SOLE AND EXCLUSIVE REMEDY SHALL BE
RECOVERY OF PROVEN DIRECT DAMAGES NOT TO EXCEED THE GREATER OF
(I) THE
FEES PAID OR PAYABLE TO NEXTEL UNDER THIS AGREEMENT DURING THE
THREE
MONTHS IMMEDIATELY PRECEDING THE DATE OF DETERMINATION OF THE
BREACHING
PARTY’S LIABILITY OR (II) ONE THOUSAND
DOLLARS.
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7.2.
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Disclaimers.
EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ALL
MATERIALS,
CONTENT, SERVICES, AND DELIVERABLES PROVIDED BY ONE PARTY TO
THE OTHER
PARTY HEREUNDER ARE PROVIDED “AS IS.” THE FOREGOING WARRANTIES ARE IN LIEU
OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY
OR
OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL
IMPLIED
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY,
TITLE AND
NON-INFRINGEMENT.
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8.
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Certain
Legal Claims.
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8.1.
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Liability
for Operator Site.
Operator is solely responsible for any legal liability arising
out of or
relating to any material to which users can link through the
Handset Link
and the products or services offered or transactions effected
through the
Operator Site. Operator represents and warrants that: the operation
and
use of the Operator Site (including but not limited to the content
used or
displayed therein) and the use, reproduction, distribution, transmission,
display or serving of the Handset Link on the Nextel Qualifying
Handsets
will not violate any laws or any rights of any third parties,
including,
but not limited to, such violations as infringement or misappropriation
of
any copyright, patent, trademark, trade secret, or other proprietary,
property or other right, false advertising, consumer fraud, unfair
competition, defamation, invasion of privacy or rights
of
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celebrity,
or violation of any antidiscrimination law or
regulation.
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8.2.
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Indemnification
by Nextel.
Nextel, at its own expense, will defend Operator and its employees,
representatives, and agents against any claim, suit, action or
proceeding
based on or relating to the Nextel Online Internet Service, exclusive
of
claims arising out of or related to Operator Content or the Operator
Site.
Nextel will indemnify and hold Operator and its employees,
representatives, and agents harmless from and against any costs,
damages
and fees reasonably incurred, including but not limited to fees
of
attorneys and other professionals, that are attributable to such
claims.
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8.3.
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Indemnification
by Operator.
Operator, at its own expense, will defend Nextel, Nextel Affiliates,
and
their respective employees, representatives and agents against
any claim,
suit, action or proceeding based on or relating to the Operator
Content or
the Operator Site or breach by Operator of Section 8.1.
Operator will indemnify and hold Nextel, Nextel Affiliates, and
their
respective employees, representatives and agents harmless from
and against
any costs, damages and fees reasonably incurred, including but
not limited
to fees of attorneys and other professionals, that are attributable
to
such claims.
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8.4.
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Indemnification
Procedures.
With respect to any claims to which Sections 8.2
or 8.3
apply, the party seeking indemnity (“Indemnified
Party”)
shall promptly notify the other party (“Indemnifying
Party”)
of any such claims, and the Indemnified Party shall permit the
Indemnifying Party to assume and control the defense of the claim
with
counsel reasonably acceptable to the Indemnified Party. The Indemnifying
Party will not be responsible for any settlement made by the
Indemnified
Party without the Indemnifying Party’s written permission, which
permission will not be unreasonably withheld. The Indemnified
Party shall
have the right to employ separate counsel (at the expense of
the
Indemnified Party) and participate in the defense of any claim
or action.
The Indemnifying Party may not settle any claim or action under
this
Section 8
on
the Indemnified Party’s behalf without first obtaining the Indemnified
Party’s written permission. In the event the parties agree to settle
a
claim or action covered by this Section 8,
the Indemnifying Party agrees not to publicize the settlement
without
first obtaining the Indemnified Party’s written
permission.
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8.5.
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Insurance.
At all times during the Term, Operator shall maintain an insurance
policy
or policies reasonably satisfactory to Nextel and adequate in
amount to
insure Operator against all liability associated with this Agreement,
including potential liability pursuant to the indemnities provided
above.
Operator shall provide Nextel with a copy or certificate of such
policy or
policies within ten business days after any request therefor
and
thereafter shall promptly notify Nextel of any material change
in such
policy or policies.
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9.
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Term
And Termination.
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9.1.
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Term.
This Agreement will become effective as of the Effective Date
and will,
unless sooner terminated as provided below, expire at the end
of the
initial term set forth on the cover page hereof. Thereafter the
Agreement
may be renewed by amendment provided one party gives notice of
intent to
renew to the other party thirty (30) days prior to the expiration
of the
initial term.
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9.2.
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Termination.
This Agreement may be immediately terminated by either party
upon notice
if the other party: (i) files a petition in bankruptcy, or makes
an
assignment for the benefit of its creditors; (ii) materially
breaches its
obligations under this Agreement (other than Sections 5.6, 6
or 11.2) and
fails to cure the breach within thirty (30) days after receiving
written
notice; or (iii) materially breaches Sections 5.6, 6 or 11.2.
In addition,
Nextel may terminate this Agreement upon thirty (30) days written
notice
to Operator if the functionality of the Operator Wireless Site
is
materially changed from that described in Exhibit
B.
Finally, both parties may also terminate this Agreement in accordance
with
the specific termination provisions in the Exhibits, if any or
elsewhere
herein.
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9.3.
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Effect
of Termination.
Upon any termination or expiration of this Agreement for any
reason, each
party shall promptly return the other party’s Confidential Information.
Sections 5,
6,
7, 8
and this Section 9.3
shall survive the expiration or termination of this Agreement.
Upon the
termination or expiration of this Agreement, the parties hereto
agree that
each party shall immediately cease the utilization of any trademarks
of
the other.
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10.
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Definitions
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10.1.
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“Affiliate”
means, with respect to a party, any entity that controls, is
controlled
by, or is under common control with such
party.
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10.2.
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“Collected
User Data”
means the Operator User Data and the Nextel User
Data.
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10.3.
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“Nextel
Site” means
the world wide web site of Nextel currently located at the URL
▇▇▇.▇▇▇▇▇▇.▇▇▇.
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10.4.
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“Nextel
User Data”
means both individual and aggregate data, including Transmission
Data,
generated in connection with a user’s use of the Nextel Online Internet
Service or otherwise exchanged between Nextel and users.
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10.5.
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“Operator
Content”
means the data, information, and other content made available
by Operator
on the Operator Wireless Site for transmission to users via the
Nextel
Online Internet Service.
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10.6.
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“Operator
Site”
means the world wide web site of the Operator addressed by the
URL set
forth on the cover page or any successor thereto and the pages
within and
linked to such site, including the Operator Wireless
Site.
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10.7.
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“Operator
User Data”
means both individual and aggregate data (i) generated in connection
with
a user’s use of Operator Content or the Operator Wireless Site or (ii)
otherwise exchanged between Operator and users via the Nextel
Online
Internet Service.
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10.8.
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“Operator
Wireless Site”
means the then-current web site developed by Operator with content
formatted for transmission to wireless handheld devices.
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10.9.
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“Qualifying
Handset”
means a wireless phone enabled by Nextel and activated by the
customer to
access Internet content and services via the Nextel Online Internet
Service for which Nextel provides a default mini-browser
configuration.
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| 10.10. |
“Term”
means the initial term and any renewal term hereof pursuant to
Section
9.1.
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| 10.11. |
“Transmission
Data”
means data generated in connection with a user’s use of the Nextel Online
Internet Service constituting transmission information rather
than content
of a transmission. Transmission Data includes, without limitation,
the
identity of the transmitting and receiving parties, the time
and length of
the communication, the location of the transmitting party and
the identity
of internet sites visited. Transmission Data does not include,
for
example, the identity of products purchased at internet
sites.
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11.
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Miscellaneous
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11.1.
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Assignment.
Either party may perform its obligations hereunder directly or
through one
or more of its Affiliates. Nevertheless, such party shall be
responsible
for the performance of any of its Affiliates. Except as provided
in this
Section 11.1,
neither party may assign or delegate its obligations under this
Agreement,
whether in whole or part, by operation of law or otherwise, without
the
other party’s written consent, provided that either party may assign this
Agreement to an Affiliate, so long as such Affiliate assumes
all
obligations under this Agreement.
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11.2.
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Construction. If
for any reason a court of competent jurisdiction finds any provision
of
this Agreement, or portion thereof, to be unenforceable, that
provision of
the Agreement will be enforced to the maximum extent permissible
so as to
effect the intent of the parties, and the remainder of this Agreement
will
continue in full force and effect. Failure by either party to
enforce any
provision of this Agreement will not be deemed a waiver of future
enforcement of that or any other provision. This Agreement has
been
negotiated by the parties and their respective counsel and will
be
interpreted fairly in accordance with its terms and without any
strict
construction in favor of or against either
party.
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11.3.
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Entire
Agreement. This
Agreement does not constitute an offer by Operator or Nextel
and it shall
not be effective until signed by both parties and all exhibits
have been
completed and attached hereto. This Agreement constitutes the
entire
agreement between the parties with respect to the subject matter
hereof
and merges all prior and contemporaneous communications. It shall
not be
modified except by a written agreement dated subsequent to the
date of
this Agreement and signed on behalf of Nextel and Operator by
their
respective duly authorized
representatives.
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11.4.
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Execution
of Counterparts.
This Agreement may be executed in any number of counterparts,
all of which
taken together will constitute a single instrument. Execution
and delivery
of this Agreement may be evidenced by facsimile transmission,
provided
that the parties agree to execute identical original Agreements
as soon as
possible thereafter.
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11.5.
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Force
Majeure.
Neither party shall be liable hereunder by reason of any failure
or delay
in the performance of its obligations hereunder caused by material labor
strikes, riots, insurrection, fires, flood, storm, explosions,
acts of
God, war, governmental action, earthquakes, 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 is not
obligated to, terminate this Agreement upon written notice to
the
nonperforming party.
|
|
11.6.
|
Governing
Law. This
Agreement shall be governed by the internal substantive laws
of the
Commonwealth of Virginia. Operator consents to jurisdiction and
exclusive
venue in the state and federal courts sitting in the Commonwealth
of
Virginia. In any action or suit to enforce any right or remedy
under this
Agreement or to interpret any provision of this Agreement, the
prevailing
party shall be entitled to recover its costs, including reasonable
attorneys’ fees.
|
|
11.7.
|
Independent
Contractors. Nextel
and Operator are independent contracting parties, and nothing
in this
Agreement shall be construed as creating an employer-employee
relationship, a partnership, a franchise, or a joint venture
between the
parties.
|
|
11.8.
|
Notices
And Contacts.
All notices required by this Agreement will be deemed to have
been given
when actually received by the party to which notice is provided
at the
address provided herein.
|
[End
of
Agreement Text.]
Exhibit
A
Fees
| 1 |
Link
Placement on Mobile Homepage
|
During
the initial three-month term, the Trial, Operator will not charge Nextel
customers for use of the Operator service. During the Trial, Operator will
not
share fees with Nextel.
Both
parties at the conclusion of the trial shall negotiate revenue sharing.
Agreement on these terms is a renewal requirement.
| 2 |
Advertisement
Revenue Fees
|
Nextel
will waive the right to revenue share for advertising served during the
Trial so
long as that advertising meets Nextel requirements detailed within this
agreement and Operator provides Nextel with reporting on the value and
quantity
of advertising served.
Exhibit
B
Site
and Link Descriptions
| 1. |
Description
of features included on Operator Site to be included on Operator
Wireless
Site:
|
XSVoice
will provide and manage an “audio” WAP Audio application that will provide
Nextel customers with the ability to stream both live and on-demand audio
programs to their Nextel phones. XSVoice will utilize its SWInG (Streaming
Wireless Internet Gateway™) technology to enable the audio content to be
streamed to Nextel mobile devices.
XSVoice’s
SWInG (Streaming Wireless Internet Gateway™) platform is a behind-the-scenes
enabling technology that will integrate into Nextel’s wireless
telecommunications infrastructure and will enable Nextel to provide live
or
pre-recorded streaming audio content to users of its current-generation
WAP-enabled wireless devices.
The
initial WAP audio application will contain the categories, sub-categories,
and
audio programs outlined and attached to this document as Exhibit
I.
Operator and Nextel recognize and agree that content changes frequently
and that
audio programs, categories, and sub-categories may be added, changed, or
removed
by Operator at anytime during the trial.
During
the Trial, Operator will provide a splash page or other means effectively
communicate the nature and duration of the Trial.
| 2. |
Placement
of Handset Link:
|
The
Operator Site will receive general placement on the default pages of the
Nextel
Online Wireless Internet Service. The Operator Site will appear in the
“Portal”
category or in a category with similar situated services as determined
by Nextel
discretion.
Should
Operator provide ▇▇▇▇▇▇.▇▇▇ Audio and Nextel agree to place a link to this
content within the Nextel Online Wireless Internet Service, that link will
be
placed in the “Sports” category or in a category with similar situated services
as determined by Nextel discretion.
Nextel
may redesign, delete or replace any aspect of the Nextel Online Internet
Service
or may redesign or replace the type or placement of links offered on the
Qualifying Handsets.
| 3. |
Placement
of Operator Site Link:
|
A
Nextel
logo and link to the Nextel wireline Internet site will be placed not more
than
3 clicks away from the Operator homepage where Mobile partners appear.
Nextel
will be treated not less prominently than other carriers.
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
Exhibit
C
Service
Level Agreement
Nextel
Wireless Web Content Partners
I.
Introduction
This
document is the Service Level Agreement (“SLA”) between Nextel and Operator,
whereby Operator will provide wireless web site content and applications
(collectively, “Application(s)”) and services to provide such Applications to
operate with Nextel services (including but not limited to SMS (short messaging
system) and wireless data services) for use by all subscribers of Nextel
services (“End-user(s)”) at the levels set forth in this SLA (“Services”). To
adequately offer and support Applications, Nextel and Operator agree to
the
terms and conditions set forth in this SLA including, but not limited to,
the
following areas.
| · |
Application
availability to the End-user
|
| · |
Trouble
identification and resolution process
|
| · |
Ongoing
Application support, upgrade, and change control
plan
|
II.
Application Availability to End-user
Application
Availability
The
Application availability requirement at commercial launch and thereafter
for
Applications and support tools is 99.5% over 365 days a year, 7 days a
week, and
24 hours a day. This equates to an average of 7.2 minutes of outage during
a
24-hour period. This includes all unscheduled Application outage as well
as any
scheduled outage that cannot be performed during the maintenance window
set
forth below.
Scheduled
Downtime/Maintenance
It
is
expected that occasional downtime will be required to maintain and enhance
the
Application. This downtime must be scheduled at least 48 hours in advance
with
Nextel’s consent and be performed between the hours of 02:00 AM and 06:00 AM
Eastern Time and shall not exceed two hours in length. Special consideration
may
be given by Nextel as dictated by End-user needs. For example, some Applications
might need to be online during late evening/early morning times. If Application
is not operable/is experiencing downtime and work time required by Operator
is
expected to exceed two hours in length, then seven days prior notification
to
Nextel is required.
Notifications/Alerts
to Nextel
During
the course of normal operations, Operator may experience service impairments
(including but not limited to slow response and partial service outage).
Operator shall notify the Nextel Network Operations Center (“NOC”) of any
service impairment within the initial response times set forth in this
SLA under
“Trouble Identification and Resolution Process” and Operator will immediately
begin an investigation to determine the cause of the service impairment
with
Nextel’s assistance as requested if necessary. Such notification by Operator to
Nextel shall be made by telephone to ▇-▇▇▇-▇▇▇-▇▇▇▇ (NOC) as well as electronic
mail to ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
and
▇▇▇▇@▇▇▇▇▇▇.▇▇▇.
Sufficient details of the service impairment shall be provided by Operator
to
Nextel to enable prompt resolution of the service impairment (including
but not
limited to service affected, extent of impairment, contact for joint
troubleshooting).
Operator
shall monitor Applications 365 days a year, 7 days a week and 24 hours
a day and
shall take immediate action to resolve any Application problems and issues.
III.
Trouble Identification and Resolution Process
Goal
of the Trouble Identification and Resolution Process
The
goal
of the trouble identification and resolution process is to resolve all
Service
and Application problems and impairments by Operator: (a) before they are
seen
by an End-user, or (b) as quickly and efficiently as possible once reported
by
an End-user or any other person. To this end, monitoring and surveillance
as
well as troubleshooting and issue determination and analysis are key to
achieving these goals. Coordination of activities between Nextel and Operator
is
essential and Operator agrees to immediately communicate all relevant
information and/or data to Nextel as set forth herein.
Priority
Assignments and Resolution Intervals
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
To
ensure
a concerted, coordinated, resolution effort, agreement on the priority
category
and the problem resolution interval for Services is needed. The following
tables
establish these terms.
|
Priority
|
Criteria
and Examples
|
|
High
|
Criteria:
· Problem
has been assessed/verified by Operator.
· The
Application is not delivering value expected by NEXTEL
to a cross-section
of End-users. A systemic issue is reasonably judged to
be the cause of the
Service interruption.
· Operator
supplied, Applications administration tools are not available
or
operational. End-user status and configuration issues can
not be resolved.
Examples:
· <
Please
provide details of what you deem a high priority>
example:
High priority means an error in or inability to use the
Application or
Service which causes a complete (100%) loss of Service
for any subset of
End-users and for which a workaround has not been made
available and which
causes an important or material component of the Operator
Services to be
unusable. Example: End-users receiving “bad http status” error when
attempting to connect to the Operator site.
|
|
Medium
|
Criteria:
· Problem
has been assessed/verified by Operator.
· Significant
Service degradation to Application or Service performance.
· Flaw
in administration tool that is causing significant loss
of functionality
and no clear workaround is immediately available.
Examples:
· <
Please
provide details of what you deem a medium priority>
example:
Medium priority means an error in but not inability to
use the Application
or Service (all errors except for “High Priority”
errors set forth above) that causes degradation of performance
of an
Application or Service and that constitutes a failure of
a material
product feature which causes significant inconvenience
to End-users,
system or product malfunction or non-usability by End-users.
|
|
Low
|
Criterion:
· Problem
has been assessed/verified by Operator.
· Problem
with the Application that is inconvenient for Nextel or
End-users but can
be worked around with minimal disruption to the End-user’s access to an
Application(s) and activity and results in minimal usage
reduction by
End-users.
Examples:
·
<
Please
provide details of what you deem a low priority>
example:
Low priority means an error in but not inability to use
the Application or
Service that has minimal current impact on the End-user
and/or causes a
malfunction of a non-essential product
feature.
|
The
following table sets forth response times required of Operator:
|
Priority
|
Time
Requirement for
Initial Response |
Update
Interval
|
Time
Requirement for
Resolution |
|
High
|
30
minutes or less
|
Every
60 minutes
|
2
hours
|
|
Medium
|
60
minutes or less
|
Every
2 hours
|
4
hours
|
|
Low
|
1
business day or less
|
Daily
|
1
week or less
|
Management
Notification Protocol
If
time
requirements set forth above for problem resolution are not met, the NEXTEL
NOC
will provide advisories to Nextel’s management as set forth below under “Nextel
Notification Protocol”. Operator will also provide advisories to Operator’s
management team as set forth below under “Operator Notification Protocol”. This
will allow maximum situational awareness of key issues and allow coordinated
communications and resolution efforts.
Nextel
Notification Protocol
|
Priority
|
Resolution
Time
Requirement Not Met |
2x
Time Requirement
Needed for Resolution |
3x
Time Requirement
Needed for Resolution |
|
High
|
Director
NOC
|
VP
NOC
|
VP
Engineering & Operations
|
|
Medium
|
Director
NOC
|
VP
NOC
|
VP
Engineering & Operations
|
|
Low
|
Director
NOC
|
VP
NOC
|
VP
Engineering & Operations
|
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
Operator
Notification Protocol
|
Priority
|
Resolution
Time
Requirement Not Met |
2x
Time Requirement
Needed for Resolution |
3x
Time Requirement
Needed for Resolution |
|
High
|
Director
NOC
|
Director
Production Systems
|
VP
Operations
|
|
Medium
|
Director
NOC
|
Director
Production Systems
|
VP
Operations
|
|
Low
|
Director
NOC
|
Director
Production Systems
|
VP
Operations
|
The
Operator Care Process
Nextel
is
responsible for support of the Nextel service, the Nextel network, and the
telecommunications elements of the Nextel Wireless Web Service. Operator
is
responsible for all support of Operator Services. Operator’s toll-free telephone
number that Nextel may provide to End-users experiencing problems with Operator
Services is 1-800-______________,
which
toll-free number will be answered in person 24 hours a day, 7 days a week,
365
days a year. If Operator determines the problem is due to End-user error,
an
Operator customer service representative will walk the End-user through the
necessary steps to use the Service. In all other cases, Operator will follow
the
“Trouble Identification and Resolution Process” set forth above.
Nextel/Operator
Escalation Contact Information
The
following table lists the points of contact for consultation and escalation
of
technical issues between Operator and Nextel. All Nextel and End-user calls
to
Operator will be answered 365 days a year, 7 days a week and 24 hours a day.
Nextel
Contacts (For Operator Use)
|
Call
Types
|
Nextel
Department
|
Nextel
Phone Numbers to Use
|
Hours
of Operation
|
|
End-user
Issues
|
Nextel
Customer Care
|
▇-▇▇▇-▇▇▇-▇▇▇▇
|
7
days a week 24 hours a day
|
|
Operational
Issues
|
NOC
|
▇-▇▇▇-▇▇▇-▇▇▇▇
|
7
days a week 24 hours a
day
|
Operator
Contacts (For Nextel Use)
|
Call
Types
|
Operator
Department
|
Operator
Phone Numbers to Use
|
Hours
of Operation
|
|
End-user
Issues
|
Operator
Customer Care
|
xxx-xxx-xxxx
|
7days
a week 24 hours a day
|
|
Operational
Issues
|
NOC/Data
Operations
|
xxx-xxx-xxxx
|
7days
a week 24 hours a day
|
IV.
Open Issues List and Reporting
There
are
two types of weekly Operator reporting that will be required: operational
and
customer care.
Operational
Reporting
Operator
will provide weekly reports to Nextel’s NOC via email to ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
and
▇▇▇▇@▇▇▇▇▇▇.▇▇▇,
on the
status of all issues reported by Nextel during the week of the report no
later
than Tuesday of the following week. This report will contain the date that
the
issue was opened, a summary of the issue, the current issue status and,
if
resolved, the date and description of the resolution. This report shall
be
submitted to Nextel no later than Tuesday of the week following the immediately
preceding week.
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
Customer
Care
A
monthly
report
containing the following information will be provided to Nextel’s NOC via email
to [insert email address] by the Operator no later than the first Friday
of the
month following the immediately preceding month:
|
·
|
Number
of calls transferred from Operator to
Nextel.
|
|
·
|
Time
of resolution for each call and how it was
resolved.
|
A
quarterly report containing the following information will be
provided to Nextel’s NOC via email to [insert email address] by the Operator no
later than the second Friday of the month following the immediately preceding
quarter:
|
·
|
Total
number and description of unresolved
issues.
|
|
·
|
Number
of customer care calls Operator receives each month of the quarter
being
reported.
|
V.
Applications Performance Validation and Change Control
Objectives
of the Applications Performance Validation and Change Control
Process
The
objectives of the Applications Performance Validation and Change Control
Process
are to assure that all Applications meet, and continue to meet, Nextel’s
expectation for performance and feature functionality. This process defines
the
series of subprocesses required to assure Application performance and
system-level compatibility throughout the Application and supporting systems
life cycle. These subprocesses and the associated responsibilities are
set forth
below.
Application
Validation & Verification (“AV&V”)
The
goal
of the AV&V process is to capture and/or quantify functional and performance
issues and/or metrics related to an Application or Service offering prior
to
commercial launch or cutover. Qualifying activities may include:
|
·
|
Applications
not previously deployed with Nextel’s general service offerings, Software
releases and upgrades and updates associated with Applications
actively
available as a part of Nextel’s general service
offering;
|
|
·
|
New
releases and upgrades associated with Applications actively available
as a
part of Nextel’s general service
offering;
|
|
·
|
Bug
fixes and patches to be applied to actively available Applications,
any
upgrades or modifications to the Applications hardware or software
platform; and
|
|
·
|
Any
modification, upgrades, updates or changes to the communications
(WAN)
component of the Applications
offering.
|
The
information obtained during the testing stage of this process shall be
disseminated to the various responsible constituencies within Nextel as
requested by Nextel for the general purposes of Care and network planning.
Nextel and the Operator will cooperate to assure that testing occurs on
a
release or version of the software, platform, and communications environment
prior to commercial release or cutover.
Application
Change Process
Operator
will notify Nextel Operations of all Application, communications and
hosting/platform related changes, maintenance and upgrades that affect
the
application feature functionality or may be customer impacting. Notification
will be made by means of a mutually agreed format and single point of contact
at
least thirty (30) days prior to the change. For each planned change or
upgrade,
an open problem list of key critical issues shall be maintained by Operator.
This list must be made available to Nextel prior to and as part of the
AV&V
process. This will allow Nextel and Operator to complete analysis and testing,
if required, to confirm continued Applications operation. Based on the
information provided in regards to the application update, Nextel will
determine
whether the impact to the user would require the application to be submitted
to
Nextel’s AV&V process.
If
Nextel
determines that the AV&V process is necessary, new releases will be
submitted through the Nextel point-of-contact [the specific Business
Development/Product Manager] (“POC”), employing the existing Nextel
documentation and request forms that will be provided by Nextel. AV&V
Requests submitted for software releases will detail all new feature
functionality and performance changes associated with the release. Releases
will
be managed and deployed according to the agreed to FOA process. All new
software
releases must be compatible with all current and previous versions (at
least two
prior versions) of software and Applications, except, in certain cases
where
prior written consent has been obtained from Nextel.
Maintenance
Operator
will provide Nextel with a 30/60 day rolling schedule for planned maintenance.
This schedule will define the nature of the planned maintenance and what,
if
any, End-user or system impact can be anticipated. Nextel’s NOC will be notified
of all unplanned maintenance or changes as described in the
“Notifications/Alerts to Nextel” section of this SLA.
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
Exclusive
Remedy for Breach
The
Parties agree that, notwithstanding any provisions to the contrary in the
Agreement, the exclusive remedy for a breach of any obligation set forth
in this
SLA or any contractual provision of the Agreement pertaining to the obligations
in this SLA, shall be a right of termination of under Section 9.2(ii) of
the
Agreement.
w:\legal\commercial\blank
documents\agreement forms\E Commerce\Form SLA2.26.01
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
Exhibit
D
Promotion
Plans
|
·
|
Nextel
agrees to place a description of the Operator application on
the
▇▇▇▇▇▇.▇▇▇ primary web site in a manner and position substantially
similar
to other Nextel partners in the same Nextel category as Operator.
|
|
·
|
Operator
agrees to place a description of the Nextel services on the
Operator Site
in a manner and position substantially similar to other Operator
partners
in the same category as Nextel, provided that Nextel gives
prior written
approval to any description used by
Operator.
|
|
·
|
Neither
party shall issue press releases or make other public announcements
regarding this Agreement without the other party’s prior written consent,
which consent shall not be unreasonably withheld. Nextel shall
have he
right to reference the service described in this Agreement
in promotional
materials; provided such promotional materials have been approved
in
writing by Operator.
|
|
·
|
During
the first month of the trial, Nextel will provide a description
of the
Operator Service and a link to the Operator Site within the
‘What’s New’
category on the Nextel Online Wireless Internet Service.
|
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
Exhibit
E
Trademarks
1.
Nextel
trademarks:
NEXTELâ,
▇▇▇▇▇▇▇.▇▇▇,
NEXTEL ONLINEâ,
plus
those graphic logos (if any) as
provided to Operator or an Affiliate for the purposes of this
Agreement. Nextel
may, but is not obligated to provide additional trademarks to Operator
for use
in
connection with this Agreement. Nextel may amend its trademarks at any time
in
its sole discretion.
2.
Operator trademarks:
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
Exhibit
F
Reports
On
or
before the 5th
day of
every month Operator will provide Nextel with the following
reports:
|
·
|
Total
page views/month
|
|
·
|
Unique
visitors/month
|
|
·
|
Number
of visitors/month
|
|
·
|
Unique
log-ins/month
|
|
·
|
Number
of log-ins/month
|
|
·
|
Number
of advertisement served/month
|
|
·
|
Gross
amount of advertising revenue during the
month
|
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
Exhibit
G
Advertising
Requirements
Operator
and Nextel agree as follows:
Operator
may elect to serve audio advertising, whether for Operator or a third party,
during the audio buffer period of the delivered streams within the Operator
Service, only if the inclusion of such Audio Advertising is and must be
in
accordance with the following requirements:
|
a)
|
Unless
agreed upon in writing by Operator and Nextel, Text Advertising
shall not
link to content, an application or any URL hosted by another
source/entity
other than Operator, Operator’s advertising agency or the site of the
party receiving such advertising and in no event will the Text
Advertising
extend beyond a single web page (example: linking to Yahoo!,
America
Online or Sun Microsystem’s wireless site is prohibited).
|
|
b)
|
Nextel
and Operator will consider alternative approaches to deliver
advertising
that must be mutually agreed upon in writing before Operator
may implement
or deliver such advertising.
|
|
c)
|
Operator
shall not, without Nextel’s prior written consent, cause or permit any
advertising for Nextel competitors or for any wireless carrier
other than
Nextel to be served to or displayed on any Qualifying Handset
and shall
not cause or permit advertising for wireless device manufacturers
or the
interactive properties of various competitors. These competitors
shall
include but are not limited to:
|
Airgate,
Alamosa PCS, Alltel Corporation, AOL Anywhere & AIM services, AT&T / NTT
DoCoMO, Cingular, ▇▇▇▇▇▇, Excite@Home Wireless Portal, Leap Wireless, MSN
Mobile
Wireless Portal & IM services, Quest Communications, Rural Cellular, Sprint
PCS/Virgin Mobile, Telecorp, Triton PCS, Ubiquitel, US Cellular, US Unwired,
Verizon , VoiceStream/Deutsche Telecom, Western Wireless, and Yahoo! Wireless.
|
d)
|
Operator
shall share the revenues resulting from the sales of the Audio
Advertising
with Nextel as set forth in Exhibit A of the Agreement.
|
|
e)
|
Operator
shall not permit Push advertisements (defined below) or Alert
advertisements (defined below) that do not require the consent
of a Nextel
end user. All Push advertisements and Alert advertisements shall
require
the opt-in consent by the Nextel end user receiving such Push
advertisement or Alert advertisement. In addition, Text Advertising
shall
include the identification of the advertiser in the Text Advertising.
Operator shall manage Nextel User opt-in consents via real-time
web-based
administration on Operator Site and wireless-based administration
on
Operator Wireless Site.
|
|
f)
|
Operator
shall limit House Ads (defined below) to less than twenty-five
percent
(25%) of total advertisements served on Qualifying
Handsets.
|
|
g)
|
Operator
may conduct customer/end-user feedback inquiries to determine
customer/end-user perceptions and obtain customer/end-user feedback
concerning the Text Advertising (“Feedback”). Subject to any
confidentiality restrictions, Operator shall provide a copy of
Feedback to
Nextel promptly upon its availability to Operator. Upon Nextel’s written
request and advertiser’s consent, Nextel shall be given the opportunity to
participate in meetings or sessions with customers/end-users
to obtain
Feedback (“Feedback Session”) and to participate in preparing all written
materials to obtain Feedback (“Feedback Materials”). If the customer/end
user experience or Feedback, as obtained by Operator, is negative,
the
parties will use commercially reasonable efforts to work together
to solve
the problem. If the problem is not solved to Nextel’s reasonable
satisfaction, Nextel may, in its sole discretion, terminate Operator’s
right to advertise on Qualifying Handsets over the Nextel wireless
network. Upon such termination, Operator shall promptly remove
all
advertising from Qualifying Handsets and no advertising of any
kind shall
be or caused to be served or displayed by Operator on any Qualifying
Handset.
|
|
h)
|
Operator
and any third party serving advertising on behalf of Operator
acknowledge
that adherence to privacy and fair information collection is
of utmost
importance to Operator, third party and Nextel. Operator will
feature an
easy to understand privacy policy to identify the nature of any
user
information collected, the purpose for collecting such information
in
connection with both Operator’s content delivery activities, and any third
party’s advertising serving activities at Operator site URL.
|
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
2.
The
following definitions shall govern for the purposes of Exhibit G and the
Agreement:
|
a)
|
"Audio
Advertising" shall mean (i) any audio-based advertisement whether
for
Operator or a third party, that Operator conveys in the Operator
Content
for listening on any Qualifying Handset. Audio Advertising does
not and
shall not include any other type of advertisement. Audio Advertising
includes all promotional messages for Operator or a third party
including
but not limited to sponsorship
arrangements.
|
|
b)
|
“Alert”
advertisements are Advertising that employ the data alert mechanisms.
The
user is made aware of the availability of a message (Data Net Mail)
by
means of the applicable alerting mechanism and then acts upon that
alert
by deleting, saving or retrieving the associated message.
|
|
c)
|
“Push”
advertisements shall mean those advertisements that have the ability
to
deliver content to the Qualifying Handset in a fashion that requires
no
action on the part of the user and preempts most or all other Qualifying
Handset related activities. Push advertisements are text-based
and capture
the entire Qualifying Handset display for some defined period of
time in
order to present content. They remain fixed on the display until
some time
parameter has expired, an internal operation is automatically invoked,
between user initiated events. In no case should the user be required
to
act upon the Push advertisement in order to remove
it.
|
|
d)
|
“House
Ads” shall mean advertising for or on behalf of Operator’s own
benefit.
|
|
e)
|
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
Exhibit
H
Content
Standards
Content
Standards. Operator is responsible for ensuring that materials, advertising
and/or functionality that it develops, creates and posts in the Operator
Content
or on the Operator Site and/or Operator Wireless Site meet the following
content
standards:
|
a)
|
do
not intentionally disparage, defame, or discredit the Nextel name
and are
not intentionally derogatory or detrimental to the good name or
business
reputation of Nextel;
|
|
b)
|
are
not unlawful, defamatory, obscene, harassing, or racially or ethnically
offensive;
|
|
c)
|
do
not intentionally promote illegal activity;
|
|
d)
|
do
not intentionally facilitate or promote unlawful violence, discrimination
based upon race, gender, color, creed, age, sexual orientation,
or
disability;
|
|
e)
|
do
not depict sexually explicit images or language;
|
|
f)
|
do
not promote a competitor of Nextel; and
|
|
g)
|
do
not provide a platform that would enable users to register for
e-mail or
messaging services, provide the ability to enter URL or create
a portal to
services or applications not provided by
Operator.
|
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
Exhibit
I
WAP
Audio Structure
Operator
will provide the following WAP audio categories, sub-categories, and links
for
the initial launch of the audio application. Operator reserves the rights
to
modify, add, or remove links, categories, and sub-categories at any time
in
order to provide value to its users.
|
Main
Category
|
Sub
Category
|
Company
Name
|
Live/On
Demand
|
|
News
|
Bloomberg
|
Bloomberg
Financial Update
|
On
Demand
|
|
News
|
Bloomberg
|
Bloomberg
Headline News
|
On
Demand
|
|
News
|
Bloomberg
|
Bloomberg
Live
|
Live
|
|
News
|
Bloomberg
|
Bloomberg
Top Business Stories
|
On
Demand
|
|
News
|
Business
& Finance
|
ABS
Live
|
Live
|
|
News
|
Business
& Finance
|
CNET
Radio live
|
|
|
News
|
Business
& Finance
|
DOW
Market Updates
|
Live
|
|
News
|
Business
& Finance
|
Market
Watch
|
On
Demand
|
|
News
|
Business
& Finance
|
NASDAQ
Market Updates
|
Live
|
|
News
|
Business
& Finance
|
NYSE
Market Updates
|
Live
|
|
News
|
CNN
|
Business
Update
|
On
Demand
|
|
News
|
CNN
|
Celebrity
Watch
|
On
Demand
|
|
News
|
CNN
|
CNN
& Time 100 Innovators
|
On
Demand
|
|
News
|
CNN
|
CNN
Lookout
|
On
Demand
|
|
News
|
CNN
|
Computer
Connections
|
On
Demand
|
|
News
|
CNN
|
Earth
Matters
|
On
Demand
|
|
News
|
CNN
|
Gallop
Poll
|
On
Demand
|
|
News
|
CNN
|
Health
Watch
|
On
Demand
|
|
News
|
CNN
|
Journey
to Wellness
|
On
Demand
|
|
News
|
CNN
|
On
Screen
|
On
Demand
|
|
News
|
CNN
|
Prescription
for your health
|
On
Demand
|
|
News
|
CNN
|
Science
and Technology
|
On
Demand
|
|
News
|
CNN
|
Sports
|
On
Demand
|
|
News
|
CNN
|
Top
Stories
|
On
Demand
|
|
News
|
CNN
|
Travel
Guide
|
On
Demand
|
|
News
|
CNN
|
Your
Money
|
On
Demand
|
|
News
|
Headline
News
|
ABC
News
|
Live
|
|
News
|
Headline
News
|
BBC
World Service
|
Live
|
|
News
|
Headline
News
|
Houston
Chronicle (Headline)
|
On
Demand
|
|
News
|
Headline
News
|
Houston
Chronicle (National)
|
On
Demand
|
|
News
|
Headline
News
|
ITN
Headline news
|
Live
|
|
News
|
Headline
News
|
National
Public Radio
|
Live
|
|
News
|
Headline
News
|
NPR
Headline News
|
On
Demand
|
|
News
|
Headline
News
|
USA
Radio
|
Live
|
|
News
|
International
|
RFI
|
On
Demand
|
|
News
|
Politics
|
CSPAN
|
Live
|
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
|
News
|
Politics
|
CSPAN2
|
Live
|
|
News
|
Politics
|
Federal
News Radio
|
Live
|
|
News
|
Politics
|
Voice
Of America
|
Live
|
|
News
|
Talk
Radio
|
Business
Talk Radio (Chicago)
|
Live
|
|
News
|
Talk
Radio
|
▇▇▇▇
▇▇▇▇▇▇▇▇
|
Live
|
|
News
|
Talk
Radio
|
WABC
(New York)
|
Live
|
|
News
|
Talk
Radio
|
WWNS
Talk Radio
|
Live
|
|
Sports
|
News
|
ABC
Today In Sports
|
On
Demand
|
|
Sports
|
News
|
ESPN
|
|
|
Sports
|
News
|
ESPN
Radio 24X7
|
Live
|
|
Sports
|
News
|
NBA
Update
|
On
Demand
|
|
Sports
|
News
|
NFL
Injury update
|
On
Demand
|
|
Sports
|
News
|
NFL
Point spreads
|
On
Demand
|
|
Sports
|
News
|
NFL
Schedules and standings
|
On
Demand
|
|
Sports
|
News
|
NFL
update
|
On
demand
|
|
Sports
|
News
|
NHL
Update
|
On
Demand
|
|
Sports
|
News
|
The
Sporting News Online
|
Live
|
|
Sports
|
News
|
The
Ticket (Dallas, TX)
|
Live
|
|
War
on America
|
ABC
News
|
Live
|
|
|
War
on America
|
Federal
News Radio
|
Live
|
|
|
War
on America
|
National
Public Radio
|
Live
|
|
|
War
on America
|
PBS
|
On
demand
|
|
|
War
on America
|
USA
Radio
|
Live
|
|
|
War
on America
|
World
Radio Network
|
Live
|
|
|
Entertainment
|
Comedy
|
Comedy
Central
|
Live
|
|
Entertainment
|
Comedy
|
Radio
Tiki
|
Live
|
|
Entertainment
|
Comedy
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
On
Demand
|
|
Entertainment
|
Drama
|
The
Shadow Radio Broadcast
|
On
Demand
|
|
Entertainment
|
Music
|
Country
Cluster
|
Live
|
|
Entertainment
|
Music
|
▇▇▇▇▇▇▇
Center Archives
|
On
Demand
|
|
Entertainment
|
Music
|
Mostly
Classical
|
Live
|
|
Entertainment
|
Music
|
Virgin
Radio
|
Live
|
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
|
Entertainment
|
People
|
ABCNews
Spotlight on the Stars
|
On
Demand
|
|
Entertainment
|
Shoutcast
Top 10
|
Shoutcast
Top 10 Radio Stations
|
Live
|
|
Entertainment
|
Talk
Radio
|
Adrenaline
Radio
|
On/Demand/Live
|
|
Entertainment
|
Talk
Radio
|
NetRadio
KMGX
|
Live
|
|
Entertainment
|
Talk
Radio
|
NPR
|
Live
|
|
International
|
Foreign
Language
|
Radio
France
|
Live
|
|
International
|
Foreign
Language
|
Radio
France Intl Music
|
Live
|
|
International
|
News
|
ABS
Live
|
Live
|
|
International
|
News
|
Australian
Broadcasting Corporation
|
Live
|
|
International
|
News
|
China
Radio International
|
Live
|
|
International
|
News
|
Houston
Chronicle (World News)
|
Live
|
|
International
|
News
|
IRAN
Radio One
|
Certain
Times
|
|
International
|
News
|
Israel
Radio
|
On
Demand
|
|
International
|
News
|
ITN
Headline news
|
Live
|
|
International
|
News
|
News
Direct London
|
Live
|
|
International
|
News
|
Radio
Hong Kong
|
Live
|
|
International
|
News
|
Radio
Japan
|
Live
|
|
International
|
News
|
United
Nations Radio - Perspective
|
On
Demand
|
|
International
|
News
|
United
Nations Radio - Scope
|
On
Demand
|
|
Living
|
Health
|
Houston
Chronicle / Health Watch
|
On
demand
|
|
Living
|
Health
|
WebMD
|
Live
|
|
Living
|
Horoscopes
|
Aquarius
|
On
demand
|
|
Living
|
Horoscopes
|
Aries
|
On
demand
|
|
Living
|
Horoscopes
|
Cancer
|
On
demand
|
|
Living
|
Horoscopes
|
Capricorn
|
On
demand
|
|
Living
|
Horoscopes
|
Gemini
|
On
demand
|
|
Living
|
Horoscopes
|
▇▇▇
|
On
demand
|
|
Living
|
Horoscopes
|
Libra
|
On
demand
|
|
Living
|
Horoscopes
|
Pisces
|
On
demand
|
|
Living
|
Horoscopes
|
Sagittarius
|
On
demand
|
|
Living
|
Horoscopes
|
Scorpio
|
On
demand
|
|
Living
|
Horoscopes
|
Taurus
|
On
demand
|
|
Living
|
Horoscopes
|
Virgo
|
On
demand
|
|
Living
|
Religious
|
Air1
Radio
|
Live
|
|
Living
|
Religious
|
BVOV
Radio
|
Live
|
|
Living
|
Religious
|
Christian
Media Network
|
Live
|
|
Living
|
Religious
|
Christian
Pirate Radio
|
Live
|
|
Living
|
Religious
|
Family
Radio
|
Live
|
|
Living
|
Religious
|
INet
Worship
|
Live
|
|
Living
|
Religious
|
News2Day
|
On
Demand
|
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL
|
Living
|
Religious
|
Radio
Vatican
|
On
Demand
|
|
Living
|
Religious
|
TBN
|
Live
|
|
Living
|
Talk
Radio
|
▇▇▇▇
▇▇▇▇▇▇
|
Live
|
|
Living
|
Talk
Radio
|
Dr.
▇▇▇▇▇
|
Live
|
|
Living
|
Talk
Radio
|
OneWord
Radio
|
On
Demand
|
|
Living
|
Talk
Radio
|
Real
Estate Radio
|
On
Demand
|
|
Living
|
Tech
& Science
|
CNET
Radio live
|
Live
|
|
Living
|
Tech
& Science
|
Environmental
News Networks
|
On
Demand
|
|
Living
|
Tech
& Science
|
Houston
Chronicle / Digital Pipeline
|
On
Demand
|
|
Living
|
Tech
& Science
|
Houston
Chronicle / Hi-Tech Buzz
|
On
Demand
|
|
Living
|
Tech
& Science
|
Houston
Chronicle / Science Update
|
On
Demand
|
|
Living
|
Tech
& Science
|
WebTalkGuys
|
On
Demand
|
NEXTEL
ONLINE HANDSET PLACEMENT AGREEMENT - CONFIDENTIAL