AMENDED AND RESTATED
LICENSE, HOSTING AND SERVICES AGREEMENT
This
AMENDED AND RESTATED LICENSE, HOSTING AND SERVICES AGREEMENT
("Agreement") is
entered into to be effective as of January 29, 2007
("the
---------
Effective Date")
by and between RazorStream, LLC, a Nevada
limited liability
---------------
company located
at 3035 East Patrick Lane, Las Vegas, Nevada 89120
("RazorStream"), and
VMdirect, L.L.C., a Nevada limited liability company
-----------
located at
3035 East Patrick Lane, Las Vegas, Nevada 89120 ("Company")
-------
(hereinafter
RazorStream and
Company may be referred to individually as a
"Party" and
collectively
as the "Parties").
-----
-------
RECITALS
A.
The
Parties are parties to that certain License, Hosting and
Services Agreement
dated to be effective as of May 1, 2005 (the "Original
--------
Agreement").
---------
B.
The
Parties desire to enter into this Agreement to (a)
amend and
restate the
Original Agreement, and (b) to govern the terms and
conditions
pursuant to
which RazorStream (i) makes the Technology (as defined below)
available to
Company, and (ii) provides certain hosting and support and
maintenance services
to Company.
AGREEMENT
NOW
THEREFORE,
in consideration of the mutual
covenants contained herein
and other good and
valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Parties agree as follows:
1.
DEFINITIONS. In
addition to the terms defined elsewhere in this
Agreement and
in the attached Exhibits, the following terms shall have
the
meanings set
forth below:
1.1
"Accounting Records"
means (a) with respect Company,
financial records
-------------------
with regard
to the gross revenue from User accounts,
and (b) with respect to
RazorStream, financial
records with regard to the records of the Expenses
charged by
RazorStream
to Company.
1.2
"Affiliate" means
(a) with respect to
the Company, any person or entity
---------
directly, or
indirectly
through one or more
intermediaries, controlled by, or
under common
control with, Company, and (b) with respect to
RazorStream, any
person or entity controlling, controlled by, or under common control with
RazorStream. For
purposes of this definition, "control"
means the possession,
directly or
indirectly,
of the power to direct or cause the
direction of the
management and
policies of an entity, whether through the
ownership of voting
securities or
voting interests, by contract or otherwise.
1.3
"Bandwidth" means
the capacity of the connection between the
---------
Technology/Hosting Services and the Internet.
1.4
"Claim" means
any allegation, claim, suit, action, demand, cause of
-----
action, investigation or proceeding.
1.5
"Company Services"
means any product or
service offered by Company from
-----------------
time to time to its Users that includes the Technology.
1.6
"Company Software"
means software owned
and/or licensed to Company that
-----------------
is used with, or that incorporates and/or embeds, the
Technology.
<PAGE>
1.7
"Derivative Work" means any work, which would be deemed a
derivative work
---------------
under the Copyright Act, Title 17 of the U.S. Code.
1.8
"Documentation" means
the technical and user manuals, FAQ materials,
-------------
including any
computer or web-based training materials, and any
hardware or
software
specifications, system
performance,
compatibility
or operational
criteria or
other official documentation described in Exhibit
A or otherwise
---------
made available
by RazorStream to Company with respect to the Technology;
provided, however,
that except as otherwise approved by Company, any such items
made available
to Company after the Effective Date shall not become
Documentation if
they would materially
diminish or reduce the functionality of
the Technology.
1.9
"Expenses" means the costs, fees, expenses and other amounts
(including,
--------
but not limited to, Fees) incurred by Company under this
Agreement.
1.10
"Field of Use" means the provision of video-based Internet
--------------
communication products
and/or services, including, without limitation,
video
e-mail, video instant
messaging, live or pre-recorded webcasting, digital vault
storage technology
and/or podcasting, including, without limitation, for
purposes of
Internet-based
social networking
applications or websites, and/or
commercial products
or applications.
1.11
"Intellectual Property
Rights" means one or
more of the following:
(a)
------------------------------
rights associated
with works of authorship throughout the universe; (b)
copyrights; (c) moral
rights; (d) mask-works; (e) trademarks and service marks;
(f) trade names; (g) trade secrets; (h)
patents, designs, algorithms and other
industrial property
rights; (i) any other
intellectual and industrial property
rights, whether
arising by operation of law, contract,
license, or otherwise;
and (j) with respect
to the foregoing, all registrations, initial applications,
renewals, extensions,
continuations,
divisions or reissues hereof now or
hereafter in
force.
1.12 "Internet"
means the world-wide
network of computers commonly understood
--------
to provide some or all of the following features, among others:
electronic mail,
file transfers through File Transfer Protocol, Telnet access to
local and remote
computers, UseNet
Newsgroups, Gopher
access to information on local and remote
computers, Wide
Area Information Servers, and World Wide Web access.
1.13
"Liabilities" means
any and all losses, damages, judgments, assessments,
-----------
deficiencies, expenses
(including court costs
and reasonable attorneys' fees),
costs and other liabilities of whatsoever kind.
1.14 "Licensed
Entities" means Company, its Affiliates, any third party
------------------
authorized by
Company from time to time, and the Users.
1.15 "Minimum
Guaranteed
Payment" has the meaning set forth in
Exhibit D of
----------------------------
---------
this Agreement.
1.16
"Modifications" means
any modification (including custom
modifications
-------------
made specifically
for or at the request of Company), addition,
enhancement,
revision, translation,
abridgment, condensation or expansion to or arising from
the Technology,
or any other form in
which the Technology or any part thereof,
may be recast or transformed, in any manner that does not constitute a
Derivative Work.
1.17 "New
Version" means, with respect to software embodied in the
Technology,
-----------
a version of the Technology which contains
significant changes in features and
functionality and
has a new version numbering, as
determined in RazorStream's
sole discretion.
1.18
"Non-Recurring
Engineering Fees" has
the meaning set forth in Exhibit D
--------------------------------
---------
of this Agreement.
-2-
<PAGE>
1.19 "Object
Code" means computer software program code that is intended to
be
-----------
directly executable
by a computer after suitable processing and
without the
intervening steps
of compilation or assembly.
1.20 "Operations
Records" means (a)
written records maintained by RazorStream
-------------------
with regard
to the maintenance and operation of the Technology and
Hosting
Services, including,
but not limited to, maintenance,
repair records, upgrade
records, and server
logs for the Technology and Hosting Services in relation to
Transaction activity,
and (b) documentation with regard to
operational audits
performed by
or on behalf of RazorStream.
1.21
"RazorStream Brand
Features" means the
trademarks, trade names, service
----------------------------
marks, service
names and logos proprietary to RazorStream, as set forth
on
Exhibit A, as such exhibit may be modified from time to time by
mutual agreement
---------
of the parties (which agreement will not
be unreasonably withheld or delayed).
1.22 "Related
Parties" means any owner, parent, partner, Affiliate,
----------------
subsidiary, agent, subcontractor, director, officer, hired or
leased employee or
worker, or permitted
assignee of RazorStream or Company, as the case may be and
as the context requires.
1.23 "Source
Code" means computer software program code, other than
Object
------------
Code and procedural code, such as job control language, which may
be printed out
or displayed
in human readable form (together with its supporting
documentation).
1.24
"Specifications" means
(a) the design characteristics, compatibility
--------------
requirements,
customization,
features, functional,
performance,
engineering,
operational and/or
technical criteria, and the required
hardware and software
operating environment
for operation of the Technology, (b) the requirements for
the Technology
described in Exhibit A and/or the Documentation, (c) the
----------
representations,
warranties, covenants
and other guarantees provided in
this
Agreement, and
(d) any written performance, feature or functionality
specifications or
documentation
related to the Technology provided or made
available by
or through RazorStream to Company and
approved by Company either
prior to or after the Effective Date.
1.25 "Subscriber
Account" means each active User account of a website operated
------------------
by Company
or any third party authorized by Company, whereby the Company
Software is
sublicensed
to such User.
1.26
"Technology" means
(a) the software applications and
computer programs
----------
described in
the attached Exhibit A, (b) any
Technology Releases developed by
---------
RazorStream from time
to time, (c) any custom Technology enhancements developed
by RazorStream hereunder pursuant to a SOW, (d) any interfaces
necessary for the
Technology to
function within the operating environment of the Licensed
Entities, and
(e) all Documentation
relating to any of the foregoing. For the
avoidance of
doubt, the term
"Technology" includes any third party technology,
software or products
embedded in the computer program described on Exhibit A or
---------
any Technology
Release.
1.27 "Technology
Releases" means any corrections, modifications, or bug fixes,
-------------------
enhancements, updates, new versions or releases to the
Technology.
1.28 "Territory"
means the world.
---------
1.29 "Third
Party Service Provider" means a third party Internet service
-------------------------------
provider (ISP)
that directly or through one or more intermediaries
provides
services to
RazorStream
in order for RazorStream to fulfill its
obligations
under this
Agreement,
including:
(a) two (2) or more independent ISP
connections; (b)
related online facilities management and
redundancy; and (c)
related power
supply and power management.
-3-
<PAGE>
1.30 "Third
Party Software" means the third party software and
technologies
----------------------
(licensed to
RazorStream
from third party software providers) that are
integrated into
the Technology, a list of which is set forth on Exhibit
E
---------
hereto.
1.31
"Transaction" means
any User transaction consummated with respect to the
-----------
Company Services
via the Technology and Hosting Services.
1.32 "Update"
means bug fixes, improvements, updates, Modifications,
------
Derivative Works
and upgrades to any portion of the Technology
developed by
RazorStream from
time to time.
1.33 "User"
means individuals and entities who utilize the
Company Software
----
for their personal or
commercial purposes, as permitted by Company from time to
time, through
one or more websites operated by Company or any third party
authorized by
Company.
1.34 "User
Information" means personally identifiable information of Users
and
----------------
any other information or data relating to any
Transaction transmitted via the
Technology and
Hosting Services in connection with or otherwise
relating to
Company, the
Users and/or the Company Services.
1.35 "Virus"
means a set of computer instructions
which are self-replicating
-----
or self-propagating and are designed to contaminate the Technology,
unexpectedly
consume computer
resources,
or modify, destroy, record or transmit data or
programming without
the intent or permission of the user.
2.
RULES OF CONSTRUCTION.
For all purposes of this Agreement, except as
otherwise expressly provided or
unless the context otherwise requires: (a) the terms defined herein
include the
plural as well as the singular and vice-versa; (b) words importing
gender
include all
genders; (c) any reference to an "Exhibit," an "Article," or
a
"Section" refers to an Exhibit, an Article, or a Section, as the
case may be, of
this Agreement;
(d) the Exhibits hereto form part of this
Agreement; (e) all
references to
this Agreement and the words "herein", "hereof",
"hereto" and
"hereunder" and other words of similar import refer to this
Agreement as a whole
and not to any particular Exhibit,
Article, Section, or other subdivision; (f)
all Article
and Section headings
are for convenience only and shall not affect
the interpretation or construction of this Agreement, (g) the words
"including,"
"included" and "includes" mean inclusion without limitation except
as noted; and
(h) this Agreement, the Documentation and the Exhibits hereto shall
be construed
as consistent
with one another
whenever possible; however, in the event of any
conflict between
any of the terms and
conditions of this Agreement, on the one
hand, and the Exhibits and/or the Documentation, on the other hand, this
Agreement shall
prevail.
3.
TECHNOLOGY LICENSE AND HOSTING SERVICE.
3.1
License Grant.
Subject to Company's continued compliance with the
--------------
obligations of this
Agreement, RazorStream hereby grants Company throughout the
Territory and
solely within the Field of Use:
3.1.1 a perpetual,
royalty-free,
non-exclusive,
irrevocable
license,
under the Intellectual Property Rights
comprising the Technology, to use,
copy, reproduce,
modify, and prepare
Derivative Works of, the Technology,
including, with
respect to any software embodied therein,
in Source Code
format, solely
for the purposes of integrating and/or embedding the
Technology with,
and/or otherwise
designing and/or developing the Company
Software;
-4-
<PAGE>
3.1.2 a perpetual,
royalty-free,
non-exclusive,
irrevocable
license,
under the Intellectual Property Rights
comprising the Technology, to use,
copy, have
used, reproduce, distribute, modify,
prepare Derivative Works
of,
perform, display, license and otherwise exploit the Technology,
including with
respect to any software embodied therein, in
Object Code
format only,
as embedded in, or integrated with, in whole or in
part,
the
Company Software;
3.1.3 the limited right to grant in the Territory, exclusive or
non-exclusive,
sublicenses in
and to the Technology (including to all
Intellectual Property
Rights therein), including with respect to any
software embodied
therein, in Object Code format only, solely for the
purpose of exploiting
the Company Software (including, without limitation,
embedding or
integrating
such software, in Object Code form only, on
Company or
third party websites and/or in Company and/or third-party
applications and
devices);
3.1.4 the limited right to grant in the Territory, exclusive or
non-exclusive,
sublicenses in
and to the Technology (including all
Intellectual Property
Rights therein), including with respect to any
software embodied therein, in Object Code format only, to Users,
solely for
the
purpose of using the Company Software
(including, without limitation,
as
such Company Software may be embedded or integrated in
third-party
applications and
devices);
3.1.5 a perpetual, royalty-free,
non-exclusive, irrevocable license to
make
additional copies of
the Technology as needed for archival or back-up
purposes;
3.1.6 a perpetual, royalty-free,
non-exclusive, irrevocable license to
copy
and display the Documentation only as reasonably necessary to
exercise
the
licenses granted to Company in Sections 3.1.1-3.1.5, including
any
sublicense rights
therein;
3.1.7 a perpetual, royalty-free,
non-exclusive, irrevocable license to
use,
reproduce and display the RazorStream Brand Features in
connection
with
the sale, advertising, distribution, exploitation, publishing,
promotion, and marketing of the Company Software, in each case, as
approved
by
RazorStream
from time to time
(which approval will not be unreasonably
withheld or
delayed); and
3.1.8 anon-exclusive
sublicense in
and to the Third Party Software
(including all Intellectual Property Rights therein),as
incorporated in the
Technology, to use and exploit such Third Party Software to the
same extent
permitted by
RazorStream
in its license agreements with the
respective
owners of such Third Party Software, in each
case as set forth on Exhibit
E.
3.2
Specifications.
Exhibit A sets forth either detailed or high-level
--------------
----------
descriptions for
the Technology. To the extent not already
developed and set
forth on Exhibit A, RazorStream promptly
shall develop detailed Specifications
---------
for each item of the Technology within thirty (30) days
after the Effective
Date, which
requirement is a material term of this Agreement as long as
Company
provides timely
feedback. All Specifications developed in
accordance with the
foregoing sentence
shall be subject to Company's review and approval,
which
review and
approval shall not be unreasonably withheld or delayed. Such
Specifications, and
any modified Specifications approved by Company,
automatically shall
become part of Exhibit A for all purposes under this
----------
Agreement in
regards to the initial implementation.
3.3
Hosting Services.
During the Term, RazorStream shall host the Technology
----------------
for the Licensed Entities' access and use of the Technology (the
"Hosting
-------
Services"). As part of
the Hosting Services, RazorStream shall provide, operate
--------
and maintain
at its premises, or
facilities under its control and supervision,
all servers, operating system software, network security,
connectivity and other
items
-5-
<PAGE>
necessary for
the proper operation of the Technology in accordance
with its
Specifications, the service level agreement set forth in Article 8
below and all
other provisions
of this Agreement.
3.4
Documentation.
RazorStream shall
provide Company with Documentation
-------------
(which may
be in electronic format) that is sufficiently detailed so
as to
enable a reasonable
end-user to use the Technology for its intended purpose and
which sets
forth the
Specifications for the Technology. Company may duplicate
the Documentation
so that Company's personnel may use the Technology and
Documentation to
conduct electronic commerce business
activities from as many
work stations
as may be required.
3.5 Source
Code Escrow. Within sixty (60) days after the Effective
Date,
--------------------
RazorStream shall
deposit and maintain the Technology in Source Code form
(including all
any updates, modifications or
enhancements), together with all
Documentation and
appropriate
supporting
materials,
in escrow with DSI
Technology Escrow
Services Inc. (or such other escrow agent as mutually agreed)
for the benefit of Company pursuant to a separate
escrow agreement in a form
acceptable to
both Parties. Company shall be permitted to
access and use the
escrowed materials
(a) if RazorStream ceases to operate or
states, either in
general to
the public, or in writing to Company, that
RazorStream does not
intend to continue to support the Technology, (b) upon the
occurrence of an
Event of Default by
RazorStream with respect to any obligation or duty relating
to the Hosting Services and/or Support Services, (c) upon bankruptcy or
insolvency of
RazorStream,
(d) upon termination of this Agreement
by Company
pursuant to
Sections 3.6, 14.1 or 14.2, or (e) as otherwise
set forth in the
escrow agreement.
The costs for
maintaining the Technology in Source Code form
on behalf of Company by the escrow agent shall be paid by Company.
The escrow agreement
shall include, without limitation, a license grant for use
of the escrowed materials by Company in such manner as shall be
reasonably
required to
exercise the rights pursuant to this
Agreement, including to use,
reproduce, publicly
display and perform, and modify (including without
limitation the
ability to alter, change, enhance and make additions
to) the
Source Code
consistent with the
licenses granted herein. Company may engage a
third party
consultant
or independent
contractor to modify, change or enhance
the Source Code on Company's behalf; provided, however, that
Company shall first
require that
any such consultant or independent contractor execute a
non-disclosure
agreement. Any
modifications or derivative works (including all
alterations, changes,
enhancements and additions) to the Source Code created by
or on behalf of Company, but not the base Source Code that
was the starting
place for such modifications, shall be owned
solely and exclusively by Company
and RazorStream
hereby assigns all of its right, title
and interest in and to
such modifications
or derivative works to Company. RazorStream also shall
promptly place
any updates, modifications or enhancements and accompanying
Documentation and/or
supporting
materials into such escrow. The nature and
completeness of
the escrowed materials will be subject
to verification at the
facilities of the escrow agent by a representative of Company in
the presence of
a representative
of RazorStream. From time to time at Company's request,
RazorStream shall
provide Company with a list of all third-party software
embedded in
the Technology, if any.
3.6 Option
to Host Technology. Company may, at its sole option, elect
to
----------------------------
host the Technology on Company's, or a third party's, servers for
the benefit of
all Licensed
Entities, by providing thirty (30) days'
prior written notice to
RazorStream at anytime
during the Term.
Following the exercise of such option,
RazorStream shall
continue to provide the Technology and Hosting
Services as
provided hereunder
until such time as Company has confirmed in writing that the
Technology has been
successfully transitioned to Company's, or a third party's,
servers (the
"Transfer Notice"). RazorStream shall use reasonable and good
----------------
faith efforts
to cooperate with Company to
transition the Technology. Company
shall be responsible for all expenses associated with transferring
and retooling
and equipment
required for the
Technology on Company's equipment. The exercise
by Company
of the option hereunder shall be deemed a termination of this
Agreement under
Section 14.2.
-6-
<PAGE>
3.7
Application to
Company and Third Party Websites.
For the avoidance
of
--------------------------------------------------
doubt, and without
limiting any portion of this Section 3, the licenses granted
herein shall
apply to each
individual website operated by Company or any third
party authorized
thereby. The Parties acknowledge and agree
that the websites
operated by
Company, or any third party authorized
thereby from time to time,
shall be as set forth on the attached Exhibit F, which Exhibit may be
---------
unilaterally amended
by Company in accordance with the provisions
of Section
11.1.
4.
OWNERSHIP.
4.1
Technology Ownership.
As between the parties, the
Technology, Updates,
---------------------
New Versions,
Modifications
and/or Derivative
Works to the Technology made by
RazorStream and provided to Company by RazorStream under this
Agreement, and the
RazorStream Brand
Features, shall remain the sole and exclusive property
of
RazorStream, with
all right, title and
interest therein to be held exclusively
by RazorStream,
provided, however, that any and all Updates, New Versions,
Modifications and/or
Derivative
Works to the Technology made by
RazorStream
shall be deemed to be
included within the licenses granted to Company under the
terms of this
Agreement. As between
the parties, the Company Software, and any
Updates, New
Versions, Modifications and/or Derivative
Works thereto, and any
Modifications and/or Derivative Works to the Technology, made by or
on behalf of
Company, shall
remain the sole and exclusive property of Company,
with all
right, title
and interest therein to be held exclusively by Company.
Additionally, RazorStream acknowledges that as between the Parties,
Company owns
all right,
title and interest, including all
Intellectual Property Rights, in
and to all content,
information and/or data processed by or transmitted via the
Technology and
Hosting Services, including all User Information.
4.2
License Restrictions.
Except as otherwise provided herein, this
---------------------
Agreement does
not grant to Company
any rights of ownership to the Technology.
Except as otherwise provided herein, Company may not modify, decompile,
disassemble, reverse
engineer or otherwise
attempt to discover the Source Code
of the Technology or create derivative works based
thereon, and Company shall
not remove
any proprietary notices, labels, or marks on any
component of the
Technology.
5.
CONFIDENTIALITY.
5.1
Confidential
Information. During
the term of this Agreement, either
-------------------------
party may come into possession of the other
party's Confidential Information.
For the purposes of this Agreement, "CONFIDENTIAL INFORMATION" means any
information that a party designates as confidential or which the
receiving party
knows or has reason to know is confidential.
Without limiting the
foregoing,
Confidential
Information includes
financial, business
and technical plans and
strategies, pricing
information,
customer lists, inventions, new products,
services or
technology.
Confidential
Information does not include information
which is: (a) already known by the receiving party at time of
disclosure; (b) or
becomes, through
no act or fault of the receiving party,
publicly known; (c)
received by
the receiving party from a third party without a
restriction on
disclosure or use; or (d) independently developed by the receiving
party without
reference to
the disclosing party's Confidential Information.
The receiving
party may disclose Confidential Information to the extent required to be
disclosed by a court or governmental agency pursuant to a statute,
regulation or
valid order;
provided that the receiving party first notifies
the disclosing
party and gives it the opportunity to seek a protective order or to
contest such
required
disclosure.
5.2
Restrictions. Each
party will hold the disclosing party's
Confidential
------------
Information in
confidence and will not use such information except as
permitted
under this
Agreement.
Each party will use the same precautions to
prevent
disclosure to
third parties of such information as it uses with its own
confidential
information, but
in no case less than reasonable efforts.
-7-
<PAGE>
5.3
Additional Obligations. Each party agrees (a) not to alter
or remove any
----------------------
identification of
any copyright, trademark or other
proprietary rights notice
which indicates
the ownership of any
part of the Confidential Information, and
(b) to notify the other party of the
circumstances surrounding any possession,
use or knowledge of the Confidential
Information by any person or entity other
than those
authorized
by this Agreement.
5.4
Privacy Compliance.
Notwithstanding
anything herein to the contrary,
-------------------
RazorStream shall
not collect, use or
disclose any User Information that would
violate any
applicable
privacy or other laws, rules, regulations,
generally
accepted industry standards or the terms of this Agreement.
6.
PROFESSIONAL SERVICES.
6.1 SOW;
Deliverables.
RazorStream
will perform professional services
------------------
("Professional
Services") for
Company, initially as part of the Implementation
----------------------
Services, as
defined below, and as
Company and RazorStream may agree from time
to time. For each project undertaken by RazorStream under this Agreement
outside of
the initial Implementation Services,
RazorStream and Company will
enter into
a written Statement of Work ("SOW") pursuant to this
Agreement,
---
substantially in
the form of the
attached Exhibit B.
Each SOW shall include a
---------
description of the Professional Services to be performed, the work
product to be
produced by
RazorStream
(the "Deliverables"), the terms of ownership of the
------------
Deliverables
(including ownership of any Intellectual Property Rights
therein),
any requirements
and specifications for the project or the
Deliverables, any
compensation to
be paid to RazorStream for the
Professional Services and any
pre-approved
reimbursable expenses
to be charged to Company, and the
project
schedule for
performance
of the Professional Services and delivery of the
Deliverables.
RazorStream shall complete the Professional Services described
in
each SOW in accordance with the project schedule and/or milestones, as
applicable, set
forth in the SOW or any project plan
drafted pursuant to such
SOW that has been approved by Company. The pricing for the Professional
Services described in
any SOW may be either a fixed amount or may be charged on
a time and materials basis, as the Parties may agree in the
applicable SOW.
Where a SOW provides that RazorStream will perform the
Professional Services
described such SOW on a time and materials basis, RazorStream shall
set forth an
estimate of
the total charges for
completion of such Professional Services and
such estimate
shall not be exceeded without Company's
prior written consent.
Unless otherwise
agreed in any SOW, any Deliverables created under this
Agreement shall
automatically be included within the definition of "Technology"
under this
Agreement.
6.2 Change
Orders. Company may require reasonable changes in the
scope of
--------------
the Professional
Services described in any SOW that
RazorStream shall perform
upon receiving
notice thereof from
Company.
Notwithstanding the foregoing, if
the change
in the scope of the
Professional Services under an SOW requested by
Company materially
increases the amount of time to be spent by
RazorStream in
providing the Professional Services as so modified, then Company
and RazorStream
shall agree
in writing to a change order with respect to such
SOW ("Change
------
Order") setting
forth a description of
the additional Professional Services to
-----
be provided
by RazorStream and the additional compensation,
if any, for such
additional
Professional Services. RazorStream shall not be obligated to
perform
such additional Professional Services if Company and RazorStream
cannot agree in
writing on
the pricing for such additional Professional Services.
Notwithstanding any
other provision of this Agreement, Company shall
have no
obligation to pay any charges for any Professional Services
rendered pursuant to
this Agreement
that exceed the fixed price, or the
estimate of all total time
and materials charges, set forth in any SOW, unless such additional
charges have
been approved
in writing by Company in advance.
This Agreement and any SOW or
Change Order
shall be construed as consistent with one another whenever
possible; provided,
however, that notwithstanding anything herein to the
contrary, in
the event of any
conflict between any of the terms and conditions
of this Agreement, on the one hand, and any SOW or
Change Order, on the other
hand, this
Agreement shall prevail.
-8-
<PAGE>
6.3
Implementation
Services.
Notwithstanding the
foregoing, in
connection
------------------------
with the roll-out of
the Technology for use in a production environment by, and
with respect to the
roll-out of each individual website operated by, Company or
any third party authorized by Company, RazorStream
shall provide, pursuant to
the fees set forth in Exhibit D, all (a) account set-up, engineering
and
----------
implementation
hardware, equipment
and services reasonably necessary with
respect to the
installation, testing and proper configuration of the
Technology
and Hosting Services to ensure that the Technology and Hosting
Services function
substantially in accordance with the Specifications and otherwise
meet Company's
requirements in
all respects, and (b) such training services as
Company may
reasonably request
(collectively,
the "Implementation Services"). Prior to
------------------------
commencing any
Professional Services other than the Implementation Services,
it
shall be RazorStream's responsibility to obtain a separate SOW with
Company that
shall govern
RazorStream's
performance
of such Professional
Services and any
compensation owed to RazorStream there for. RazorStream shall not
be entitled to
any compensation
for (i) the Implementation Services,
or (i) any Professional
Services rendered
by RazorStream for Company unless Company has agreed
in a
separate SOW
to such charges.
7.
MAINTENANCE AND SUPPORT.
During the Term, and
at all times thereafter to the extent Company continues to
use the Technology, RazorStream shall provide to Company the
maintenance and
support services
("Support Services") for the Technology in accordance with the
----------------
terms and conditions set forth on Exhibit C hereto.
----------
8.
REDUNDANCY; BACK-UP; THIRD PARTY SERVICE PROVIDERS.
8.1
Redundancy; Disaster
Recovery. At all times during the Term of this
-------------------------------
Agreement, RazorStream
shall maintain complete back-up
facilities at a remote
location so as to
ensure availability of the Technology and Hosting Services in
the event that the Technology or Hosting Services experience technical
difficulties or other problems whether within or beyond
RazorStream's reasonable
control.
8.2
Bandwidth. During the
Term, the Bandwidth representing the connection of
---------
the Technology/Hosting
Services to the
Internet shall only operate at capacity
for periods
of time that are commercially reasonable (as determined by
applicable industry standards and practices in effect from time to
time). In the
event that
(a) the Technology/Hosting Services connection exceeds
Bandwidth
capacity beyond
periods of time that are commercially
reasonable in any given
calendar month,
and (b) Company reasonably anticipates that the
Technology/Hosting
Services connection
will continue to exceed Bandwidth
capacity, RazorStream shall provide additional bandwidth as
requested by Company
within thirty
(30) days, provided that such increases in Bandwidth are
reasonable and
a commensurate increase in compensation is mutually agreed
between RazorStream
and Company.
Initial Bandwidth
will be set at a guaranteed 100Mbps
(megabits per second),
burstable to 1 Gbps (gigabit per second). This given resource
level, independent
of other factors, can support an approximate
sustained 800 simultaneous 128Kb
video connections. Burst allowance can support an approximate 7,500
simultaneous
128Kb video
connections.
Bandwidth utilization
samples are taken for each 5 minute
interval throughout
the month. The 95th
percentile of the sample data will be used as the basis for
all usage charges. The Customer shall be billed the
higher of (i) the Minimum
Ethernet MRC (in the
event Customer's 95th percentile usage is equal to or less
than the applicable
Minimum Usage) or (ii) an MRC equal to the Minimum Ethernet
MRC plus an amount equal to the product of
the 95th percentile usage in excess
of the applicable Minimum Usage for such month multiplied by the
applicable Unit
MRC.
-9-
<PAGE>
8.3
Back-Up of
Transaction Logs.
RazorStream shall make
a complete back-up
-----------------------------
of the Transaction logs on a daily basis
during the Term. On
the first day of
every month
during the Term, or at more frequent intervals as
reasonably
requested by Company, RazorStream shall deliver to Company a
complete electronic
copy of the Transaction logs for the previous month.
8.4 Notice
of Third Party Service Provider. RazorStream may change its
Third
--------------------------------------
Party Service
Provider as long as
notice of such change is provided to Company
within 30 days of such change.
9.
SECURITY.
9.1
Security. RazorStream
shall use SSL
encryption or other such technology
--------
consistent with
applicable
industry standards and
practices as in effect from
time to time to ensure that the Technology is
configured so as to (a) permit
only Licensed
Entities' use of the Technology for purposes of conducting
Transactions, and (b)
prohibit any non-Licensed
