Exhibit 10.47
DEVELOPMENT AGREEMENT
This
DEVELOPMENT AGREEMENT dated as of March 28, 2005, is by and between
SONY ELECTRONICS INC., with offices at 1 Sony Drive, Park Ridge,
New Jersey 07656-8003 (“Sony”), and GLOWPOINT, INC.,
with an office at 225 Long Avenue, Hillside, New Jersey 07205
(“Provider”).
WITNESSETH :
WHEREAS,
Sony wishes to engage Provider on a non-exclusive basis to perform
certain services, including the creation and delivery of certain
deliverables, as more particularly described in this Agreement (the
“Services”), and Provider desires to accept association
with Sony in such capacity.
NOW,
THEREFORE, in consideration of the mutual covenants and premises
hereinabove and hereinafter set forth, the parties hereby agree as
follows:
1. SERVICES/SCHEDULE
Provider
shall perform the Services described in Exhibit A attached to this
Agreement and made a part hereof for Sony in accordance with the
terms and conditions hereof. The implementation schedule and
milestones for the Services are set forth in Exhibit B
hereto.
2. COMPENSATION
A.
As full and complete consideration for the performance of the
Services, Sony shall pay Provider such fees and reimburse such
expenses as are set forth on Exhibit C attached to this Agreement
and made a part hereof. Sony will have no obligation to pay any
invoice submitted more than ninety (90) days from when such invoice
should have been issued. Any fees payable on a per diem/per hour
basis are only for those days/hours actually worked by Provider.
Payment of such fees is subject to performance of the Services
covered thereby to the reasonable satisfaction of Sony. Provider
represents to Sony that such fees are at least as favorable as
those charged to other clients of Provider for the performance of
services similar to the Services. Provider will furnish Sony such
evidence of reimbursable expenses as Sony may reasonably request as
a condition for their payment.
B.
If Provider determines that it has any inquiries, problems or
believes there are errors or discrepancies with respect to any
amounts due to it pursuant to this Agreement, then Provider shall
give Sony notice thereof within ninety (90) days of the date that
the Services which gave rise to the inquiry, problem and/or
discrepancy, etc. were performed. Provider’s failure to give
Sony such notice will constitute a waiver of any and all right
which Provider may have to any adjustment, charge or reimbursement
by reason thereof.
C.
Provider shall maintain complete and accurate accounting records
concerning the performance of the Services and will retain such
records for a period of two (2) years following termination or
expiration of this Agreement. Sony will have the right, upon giving
Provider reasonable notice, to audit, at any time during the term
hereof and throughout such period, Provider’s records
relating to the costs, expenses, and disbursements made or incurred
in connection with the performance of the Services.
3. KEY PERSONNEL
A.
Provider represents and warrants that Provider’s employees
and permitted subcontractors assigned by Provider to perform the
Services are qualified to do so.
B.
Provider shall not remove (other than by discharge) any of the
employees or permitted subcontractors referred to in Paragraph 3A
from the performance of the Services without giving Sony notice
thereof. Sony may request in writing the removal of any of
Provider’s employees or permitted subcontractors performing
the Services who interact directly with Sony employees and/or
customers whom Sony, in good faith, determines is unqualified or
not suitable to perform the Services. Provider shall have thirty
(30) days to resolve any issues related to employees or permitted
subcontractors whose removal Sony has requested. The extent of
removal shall be at Provider’s sole discretion but will at a
minimum consist of the restriction of the identified employee or
permitted subcontractors from interacting with Sony employees
and/or customers.
4. REPRESENTATIONS AND
WARRANTIES
A.
Provider represents and warrants to Sony that it has the experience
and knowledge to perform the Services; that the performance of the
Services shall not violate any proprietary rights of third parties,
including, without limitation, patents, copyrights or trade
secrets; and, that the performance of the Services will not violate
any applicable law, rule, regulation or contractual obligations or
confidential relationships which Provider may have to or with any
third party, or violate the privacy of any third party from whom
Provider may obtain any information in connection
therewith.
B.
Provider represents and warrants that any deliverable and computer
media furnished to Sony as part of the Services shall be free from
computer viruses, and any undocumented and unauthorized methods for
terminating or disrupting the operation of, or gaining access to,
the deliverable, computer systems or other computing resources or
data, or other code features which result in or cause, in whole or
in part, directly or indirectly, damage, loss, or disruption to all
or any part of the computer systems or other computing resources
and that same will not incorporate any termination logic or any
means to repossess such deliverable. For these purposes,
“Termination logic” means computer code that uses the
internal clock of the computer to test for the date and/or time
(e.g., Friday the 13th), use count, execution key, or any related
techniques as a trigger to render inoperable or otherwise disable
the deliverable or any related computer system.
C.
EXCEPT FOR ANY EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT,
PROVIDER MAKES NO OTHER WARRANTIES TO SONY
WHATSOEVER, AND PROVIDER HEREBY
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RELATING TO
ITS PERFORMANCE OF THE SERVICES.
5. CONFIDENTIALITY
A.
Any disclosures of information by one party to the other party
under this Agreement or pursuant to the transactions contemplated
hereby shall be governed by the Confidentiality and Non-Disclosure
Agreement between the parties dated January 25, 2005 (the
“Confidentiality Agreement”). The terms of the
Confidentiality Agreement will apply hereto and the transactions
contemplated hereby for a period of two (2) years following the
termination or expiration hereof.
B.
If, as part of the Services or otherwise, Provider receives
Personal Information (as such term is defined in Exhibit D attached
to this Agreement and made a part hereof), Provider shall comply
with the terms and conditions of such Exhibit D with respect to
such Personal Information.
6. OWNERSHIP
A.
All deliverables required by the Services and all tangible and
intangible property, work products, inventions and discoveries
which are conceived/developed/created/obtained by Provider
specifically in connection with the performance of the Services
(the “Work Product”), including, without limitation,
all technical notes, schematics, software source and object code,
prototypes, breadboards, computer models, artwork, literature,
methods, processes and
