2.6                                  “Software” means computer programs and data, in machine readable form, and related materials, including user, technical, and system administrator materials, listings, and documentation related to such computer programs and data. Unless otherwise specified in a Statement of Work or other document signed by TCS and Customer, all Software is only licensed to the Customer and provided only in object code form. Software may be licensed by TCS or by a third party.

 

2.7                                  “Specifications” mean the technical and operational specifications that describe the proper functioning of any Product or Service. For Hardware the Specifications are provided by the manufacturer. For Services and Systems the Specifications are provided in the Statement of Work. For TCS Software, the Specifications are as provided in the License Agreement and any applicable Statement of Work. For third party Software, the Specifications are as provided in the License Agreement.

 

2.8                                  “General Statement of Work” means the document headed with that name specifying the overall respective responsibilities of TCS and the Customer for VoIP E9-1-1.

 

2.9                                  “System” means a combination of Hardware and Software integrated to perform specified functions.

 

2.10                            “Work Orders” means a document referencing this Master Sales Agreement and the General Statement of Work and signed by both Customer and TCS specifying the Products and/or Services to be provided, the respective responsibilities of TCS and the Customer, the applicable schedule of delivery, the Completion Criteria, the applicable charges for the Products and/or Services, and any other terms.

 

3.                                       PRODUCTS AND SERVICES PROVIDED

 

3.1                                  TCS shall provide the Products and Services described in each Work Order, including attachments, for the prices and on the schedules specified therein and in accordance with the Master Sales Agreement and General Statement of Work and any exhibits to either of them referenced in the Work Order.

 

3.2                                  TCS and Customer shall each perform their respective obligations and carry out the responsibilities as described and according to schedules specified in each Work Order. To the extent either Party is delayed in performing any of its obligations under the Agreement due to the other Party’s failure to perform any of its responsibilities in accordance with the applicable schedules, the first Party shall be permitted to delay the performance of its obligations and shall be entitled to compensation from the other Party for any additional actual and reasonable out-of-pocket costs incurred as a result. In the event of delay by Customer, TCS will prepare a change order of the costs associated with the delay. TCS will not continue performance of its obligations until Customer has approved the change order and amended the Work Order to include such costs. In the event of a delay by TCS, TCS will compensate Customer for such delay as set forth in the applicable Work Order or General Statement of Work.

 

4.                                       ACCEPTANCE

 

4.1                                  Products and Services delivered by TCS shall be considered accepted by the Customer upon completion of the Completion Criteria, as defined in Article 2.1. If Customer has not signed the FOA within 30 business days of receipt, Products and/or Services will be deemed accepted unless Customer has provided TCS written notice of rejection detailing the reasons why they do not meet the specifications in the SOW. TCS shall promptly correct any such deficiencies or obtain the Customer’s written agreement to a plan to correct such deficiencies. The System shall thereafter be considered accepted upon completion of the Completion Criteria.

 

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4.2                                  If Customer believes that TCS has not provided a Professional Service in a workmanlike manner or according to the Specifications of the Work Order, Customer shall provide written notice to TCS of any deficiencies within ten (10) business days of the completion of the provision of the Professional Service. TCS may perform again or provide an appropriate credit for any Professional Service that was not delivered in a workmanlike manner or according to its Specifications of the Work Order.

 

4.3                                  Customer shall own all title and interest in all Hardware delivered under this Agreement, unless such Hardware is subject to the terms of a leasing agreement.

 

5.                                       INVOICES AND PAYMENT

 

5.1                                  Customer shall pay the amounts indicated in the Work Order for the Products and Services delivered by TCS. TCS may invoice the Customer for the amounts specified in the Work Order for Products and Services only upon their acceptance. Customer shall pay TCS the full amount of such invoices (other than amounts subject to a good faith dispute) in U.S. Dollars within 30 days of the date of Customer’s receipt of the invoice (“Due Date”). Except for any amounts reasonably disputed by Customer in writing, TCS may assess and Customer shall be liable to pay a late charge at a rate of one-half percent (0.5%) per month or the highest rate permitted by law, whichever is less, on all unpaid amounts (other than disputed amounts) from the due date until paid in full.

 

5.2                                  Failure to pay any fees or other charges or amounts (including taxes) due to TCS on or before the Due Date shall be a breach of this Agreement (“ Failure to Pay ”). Notwithstanding anything else contained in this Agreement, in the event of a Failure to Pay that is not cured within fifteen (15) business days after notice thereof, TCS may suspend delivery of Products and/or Services to Customer and/or upon five (5) business days written notice terminate this Agreement for default, unless said Failure to Pay is based on Customer’s good faith dispute of the amounts invoiced as presented in writing to TCS on or before the Due Date or the expiration of the fifteen (15) day notice period referenced above. Any suspension may be continued until the Failure to Pay has been cured but will cease upon cure. TCS shall be entitled to recover reasonable costs incurred prior to termination and attorney’s fees and costs in the event that any legal proceeding is brought by TCS in collecting all unpaid and undisputed amounts hereunder.

 

5.3                                  If Customer disputes any part of an invoice, then in order to withhold such amount from its payment, Customer must notify TCS in writing as to the specific amounts contested and the reasons for such dispute on or before the Due Date of the invoice, provided that this provision does not waive Customer’s right to subsequently place in dispute and seek a refund of amounts already paid.

 

5.4                                  All prices and charges for Products and Services provided hereunder are exclusive of any taxes applicable to the transaction, such as value added taxes, sales or use taxes, duties, or other taxes or levies imposed by any government, public authority, or government agency on Customer’s purchase of Products or Services hereunder, all of which are the responsibility of Customer to pay, provided, for avoidance of doubt, that Customer shall not be responsible for payment of any taxes based on the income, property or employment of TCS.

 

5.5                                  TCS reserves the right to modify its price for annual maintenance and support of any Products for any maintenance renewal period subsequent to the period or periods specified in the Work Order for the reasons set forth below by providing Customer notice of any price modification at least sixty (60) days prior to the commencement of the next applicable renewal period for maintenance services. Price modifications may be based on a change in the number of unique records being managed and any additional features being used by the Customer (unique records managed include all records active for any period of time during each month, regardless of service change or termination) or on Customer-initiated changes to the configuration of the Customer’s Software.

 

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6.                                       TERM AND TERMINATION OF AGREEMENT

 

6.1                                  Subject to paragraph 6.3 below, this Agreement shall be effective upon signature by both Parties as of the date noted above for a period of three (3) years (“Initial Term”) and shall be automatically extended for additional one (1) year periods, unless either Party notifies the other to the contrary no less than sixty (60) days prior to the expiration of the Initial Term or any extension thereof. The expiration of this Agreement shall not terminate any Work Order referring to the terms of the Master Sales Agreement, and the terms of the Master Sales Agreement shall remain effective as to any such Work Order, until that Work Order has been completed or has terminated.

 

6.2                                  Either Party may terminate this Agreement and any Work Order for cause upon written notice to the other Party in the event that the other Party fails to perform any of its material covenants or obligations contained in this Agreement or such Work Order, unless such default is cured or a mutually agreed plan to cure is accepted within thirty (30) days of delivery of written notice of such default to the defaulting Party. If Customer is in material default of this Agreement and such default continues for a period of thirty (30) days after TCS’ written notice thereof to Customer, then TCS shall also have an independent and alternative right to suspend delivery of Products or Services in then effective Statements of Work upon written notice to Customer, provided that TCS will end such suspension upon cure of the default by Customer. Customer may terminate this Agreement and any Work Order upon written notice to TCS if TCS assigns this Agreement or all or a substantial part of the infrastructure used to provide Services hereunder, directly or through the sale or merger of TCS or any of its assets, to an entity that has a substantial business in VOIP services.

 

6.3                                  The Parties agree that in the event that material unforeseen changes in applicable legal or regulatory requirements for providing VoIP E9-1-1 services make the provision of Services under this agreement commercially impracticable or materially impact the cost of acquiring or delivering such services for either Party, then the Parties will negotiate in good faith to adopt changes to or revisions of the Services contemplated by this Agreement so that such legal or regulatory changes are not unreasonably burdensome on either Party. If after good faith negotiations the Parties do not agree to amend this Agreement or the Services to accommodate such legal or regulatory changes, then either Party may terminate this Agreement and any Work Order upon ninety (90) days written notice to the other Party.

 

Customer’s license to any Software shall become effective upon acceptance by Customer of the Software or a System that includes the Software. If this Agreement expires or terminates (other than for reason of Customer’s default), Customer’s license to Software shall continue in accordance with the terms of the applicable TCS Software License Agreement or third party license. If this Agreement and the Customer’s license to use the Software is terminated by TCS pursuant to Section 5.2 for a Failure to Pay or Section 6.2 for a material default by Customer, Customer shall be entitled to retain possession of and to continue to use the Software for a period not to exceed 45 days in order for Customer to make a transition to alternate software or facilities.

 

This Agreement and any Work Order referencing this Agreement may also be terminated by either Party, if the other Party has become insolvent, has filed for bankruptcy, or has been declared insolvent or bankrupt.

 

Any termination pursuant to Section 6.2, 6.3 or 6.5 shall be without liability on the terminating Party, provided that such termination will not relieve the terminating Party for amounts owed with regard to Services rendered prior to the effective date of such termination.

 

The following terms of this Agreement shall survive expiration or termination of this Agreement:  Articles 5, 6, 8, 9, 12, 14, and 16.

 

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7.                                       WARRANTY AND MAINTENANCE OF PRODUCTS

 

TCS Products delivered to Customer under this Agreement are warranted to conform to their Specifications for a period of one year after acceptance by Customer (or for such other period as may be set forth in the Work Order). During the warranty period, TCS will correct defects in Software and repair or replace Hardware in accordance with third party manufacturer’s policies and in the event TCS fails to do so within thirty (30) days of notice of such defect, will refund amounts paid by Customer for the defective Hardware or Software prorated for the remaining term of the warranty period. Following such warranty period, TCS shall provide Customer with maintenance and support services for Software and Hardware in accordance with the terms of the TCS Product Maintenance Support Policy, Exhibit B (to be attached only if Software license and Hardware are to be purchased under a Work Order), for the periods Customer requests and pays for such maintenance and subject to any additional terms specified in the applicable Work Order. For all third party Hardware and Software delivered by and purchased through TCS, Customer will be provided warranty and maintenance service in accordance with the third party manufacturer’s warranty and maintenance policies, provided Customer pays any applicable maintenance support charges which are quoted to and approved by Customer in advance of the rendering of such warranty and maintenance service.

 

TCS MAKES NO OTHER WARRANTIES OF ANY KIND WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TCS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

8.                                       INTELLECTUAL PROPERTY NON-INFRINGEMENT AND INDEMNIFICATION

 

8.1                                  TCS represents and warrants as of the effective date of this Agreement and thereafter throughout the term of this Agreement that TCS owns or has the legal right to license the Software licensed under this Agreement and that the Software does not infringe any patent, copyright, or trademark of any third party enforceable in the United States. TCS further represents and warrants that no Hardware or Software delivered to Customer and no System contains any (i) back door, time bomb, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of TCS; or (ii) any virus, Trojan horse, worm, or other software routine or hardware component designed to permit unauthorized access to, disable, erase, modify or otherwise harm any software, hardware or data; provided that with regard to third party Hardware or Software, the representation and warranty in this sentence is made only to TCS’ best knowledge and belief.

 

8.2                                  If a third party claims that any of the Software, Hardware, Systems or Service infringes its patent, copyright, or trademark enforceable in the United States, TCS will indemnify and defend Customer against that claim at TCS’ expense, provided that Customer promptly notifies TCS in writing of the claim (provided that failure or delay in making such notification shall excuse TCS from its indemnification obligation hereunder solely to the extent that TCS is actually prejudiced thereby), allows TCS to control the defense of such claim, and cooperates with TCS in its defense. If such a claim is made, Customer agrees to permit TCS to, and TCS will at its own expense, either:  1) procure necessary rights to enable Customer to continue to use the Software, Hardware, Systems or Service, or 2) modify or replace such Software, Hardware, Systems or Service to eliminate the infringement; provided that the choice between (1) and (2) shall be at TCS’ discretion. However, TCS has no obligation of indemnification under this Section 8.2 for any claim of infringement caused by Customer’s modification of the Software or Service or their combination, operation, or use with any product, data, or apparatus not specified or provided by TCS, provided that such claim would be avoided absent such Customer modification or combination, operation, or use with products, data, or apparatus not specified or provided by TCS. THIS SECTION 8.2 STATES TCS’ ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

 

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8.3                                  The parties intend that TCS, in its performance of the Services, enjoy the same immunity from or limitation of liability as is available to Customer and its agents under applicable law in connection with the provision of the standard or enhanced 9-1-1 service and in any event, that TCS at least be indemnified against liability arising out of or relating to TCS’ performance of the Services except to the extent such liability results from the negligent, reckless, willful or wanton misconduct of TCS or its employees, agents, representatives or TCS’ breach of this Agreement (including without limitation any warranties of TCS set forth herein). Accordingly, Customer shall defend, indemnify and hold harmless TCS and its directors, officers employees, representatives, agents and third party vendors from and against any and all claims, suits, demands, actions, losses, awards, liabilities, damages, costs and expenses (including, without limitation, reasonable attorney’s fees) asserted by third parties and arising out of or in connection with (a) any act or omission of Customer or its employees, agents, representatives in the operation of its VoIP 9-1-1 service or other services; or (b) any act or omission of TCS that is reasonably undertaken for purposes of the provision and performance of the Services or its other obligations under this Agreement; provided that the foregoing indemnity will not require Customer to indemnify TCS against liability for damages to the extent such damages result from the negligence or reckless, willful or wanton misconduct of TCS or TCS’ breach of this Agreement (including without limitation any warranties set forth herein). To the fullest extent permitted by applicable law, the foregoing indemnity will apply regardless of any strict liability or product liability of TCS not amounting to negligent, reckless, willful or wanton misconduct of TCS or TCS’ breach of this Agreement (including without limitation any warranties of TCS set forth herein).

 

8.4                                  TCS shall defend, indemnify and hold harmless Customer and its directors, officers employees, representatives, agents and third party vendors from and against, any and all claims, suits, demands, actions, losses, awards, liabilities, damages, costs and expenses (including, without limitation, reasonable attorney’s fees) asserted by third parties and arising out of or in connection with (a) any negligent, reckless, willful or wanton act or omission of, or breach of this Agreement by, TCS or its employees, agents, representatives; or (b) any act or omission of TCS that is not reasonably undertaken for purposes of the provision and performance of the Services or its other obligations under this Agreement; provided that the foregoing indemnity will not require TCS to indemnify Customer against liability for damages to the extent such damages result from the negligence, reckless, willful or wanton misconduct of Customer or Customer’s breach of this Agreement (including, without limitation, any warranties of Customer set forth herein).

 

8.5                                  To the extent not addressed in Section 8.3 or 8.4, each party (for purposes of this Indemnification Section, the “Indemnifying Party”) will indemnify, defend and hold harmless the other (including its officers, directors, employees and agents), its Affiliates and customers, against any loss, cost, expense or liability (including reasonable attorneys’ fees and costs) arising from the negligence or willful misconduct of the Indemnifying Party (including its Affiliates, agents, employees and others under its direction or control).

 

8.6                                  In any case in which one Party is required to indemnify the other pursuant to this section 8, the party to be indemnified pursuant to this Section 8 will notify the Indemnifying Party within a reasonable time after receiving notice of a claim (provided that failure or delay in making such notification shall excuse the Indemnifying Party from its indemnification obligation hereunder solely to the extent that the Indemnifying Party is actually prejudiced thereby). Provided that the Indemnifying Party promptly and reasonably investigates and defends any such claim, the Indemnifying Party will have control over the defense and settlement thereof. The party to be indemnified will furnish, at the Indemnifying Party’s reasonable request and expense, information and assistance necessary for such defense.

 

9.                                       LIMITATION OF LIABILITY

 

NEITHER PARTY WILL BE LIABLE TO THE OTHER (OR ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUBCONTRACTORS, CUSTOMERS OR ANY OTHER THIRD PARTY) FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL

 

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DAMAGES ARISING OUT OF THE SERVICES OR SUCH PARTY’S PERFORMANCE OF OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT OR (EXCEPT AS PROVIDED IN SECTION 8) FOR THE CLAIMS OF THIRD PARTIES FOR LOSSES OR DAMAGES. EXCEPT FOR AMOUNTS PAYABLE BY CUSTOMER TO TCS UNDER SECTION 5, AND THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, EACH PARTY’S LIABILITY (WHETHER IN TORT, CONTRACT OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OF SUCH PARTY) UNDER THIS AGREEMENT OR WITH REGARD TO THE SERVICES OR OTHER ITEMS FURNISHED UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL COMPENSATION ACTUALLY PAID TO TCS FOR THE PREVIOUS TWELVE MONTHS UNDER SECTION 5 OR $100,000, WHICHEVER IS GREATER.

 

10.                                ASSIGNMENT

 

This Agreement may not be assigned or transferred by either Party without the prior written consent of the other Party, except that upon notice to the other Party:  (1) either Party may assign this Agreement without consent to any Affiliate of it, and (2) TCS may assign its rights to payments under this Agreement to a financial institution. In addition, Customer’s rights under this Agreement and in the Software may be transferred, leased, assigned, or sublicensed without the consent of TCS to a successor in interest to Customer’s entire business or substantially all of its assets which assumes the obligations of this Agreement.

 

11.                                FORCE MAJEURE

 

Neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment or software, or any consequence thereof, caused by fire, earthquake, flood, water, the elements, unavailability of transportation, acts of terrorism or acts or omissions of third parties other than subcontractors of a Party, or any other cause beyond the reasonable control of a Party and not caused by its negligence (“Force Majeure”). The Party whose performance is affected by such Force Majeure shall notify the other Party of the existence of such Force Majeure and shall use its best efforts to resume performance as soon as practicable. Customer shall not be obligated to pay for any Service which TCS is unable to perform because of Force Majeure.

 

12.                                PUBLICITY AND CONFIDENTIALITY

 

12.1                            Without the written consent of the other or unless required by law or regulatory authority, neither Party shall disclose the terms of this Agreement or any related facts to any third party except such Party’s lawyers, accountants or auditors which are obligated to keep such information in confidence. No press releases or other public announcements of or relating to this Agreement shall be made by either Party without the prior written consent of the other Party. The Parties agree to work in good faith to issue a mutually agreeable joint press release designed to coincide with general availability of the VoIP E9-1-1 services, concerning this Agreement and the work to be performed. Each Party may use the name of the other Party (without other information) in its supplier or customer lists, as applicable.

 

12.2                            For a period of three (3) years from the date of receipt, each party shall maintain the confidentiality of and not disclose to third parties all information or data of any nature provided to it by the other party hereto provided such information (i) contains a conspicuous marking identifying it as confidential or proprietary, (ii) in the case of confidential information disclosed orally, is identified as confidential at the time of disclosure and a written summary provided to the receiving Party within fifteen (15) days of disclosure or (iii) whether or not so marked or identified if such information is related to Customer’s customer lists, financial or budgetary statements or projections, or technical, operational or business plans or strategies (“Confidential Information”). Each Party shall use the same efforts to protect from disclosure Confidential Information it receives hereunder as such Party accords to similar confidential information of its own.

 

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12.3                            This Agreement imposes no obligation on the Recipient with respect to Confidential Information received from the Provider which:

 

(a)                                   was known to the receiving Party without any limitation on use or disclosure prior to the delivery of the Information by Provider,

 

(b)                                  is independently developed by the receiving Party,

 

(c)                                   is rightfully obtained by the receiving Party from a third party under no obligation of confidentiality,

 

(d)                                  is made available to third parties by the disclosing Party without any limitation on use or disclosure, or

 

(e)                                   is, or becomes, publicly available.

 

This Agreement shall not prevent any disclosure of Confidential Information to a court or government agency pursuant to a lawful order, provided that prior to making such disclosure, the receiving Party shall use reasonable efforts to notify the disclosing party of this required disclosure and shall seek or permit the disclosing Party to seek available protections against further disclosure by such court or agency.

 

12.4                            The Parties acknowledge that a breach of any of the promises or covenants contained in this Section 12 may result in irreparable damage to the disclosing party, for which there may be no adequate remedy at law. The disclosing Party shall be entitled to seek injunctive relief and/or a decree for specific performance and such other relief as may be proper (including monetary damages if appropriate).

 

13.                                NOTICES

 

All notices concerning this Agreement shall be in writing and shall be deemed given upon receipt. All notices shall be sent by registered or certified mail, by overnight courier service, facsimile transmission with electronic confirmation of delivery, or by other means agreed upon by both parties. Either Party may change the names or address to which notices must be sent by sending a written notice to the other Party.

 

Notices to TCS should be sent to:		TeleCommunication Systems, Inc.
		275 West Street,
		Annapolis, MD 21401
		Attention: Celeste Ciecierski
		Tel: (410) 295-1451
		Fax: (410) 263-7617
Notices to Customer should be sent to:		Vonage
		2147 Route 27
		Edison, New Jersey 08817
		Attention: Brooke Schulz
		Tel: (732) 528-2627
		Fax: (732) 287-9119

 

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14.                                DISPUTES

 

The Parties agree to submit to arbitration for any and all matters in dispute or controversy between them concerning this Agreement that cannot be resolved through discussion by senior executives of both Parties. In the event that discussions by senior executives cannot resolve any such dispute or controversy within sixty (60) days (or such other longer period as the Parties may agree) either Parties may submit such matter in dispute to arbitration, and such matter shall be resolved by a binding arbitration by a single arbitrator. Any such arbitration proceeding shall be held in the English language in New York, New York. The arbitrator will be selected and the arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The parties will share equally in the fees and expenses of the arbitrator and the cost of the facilities used for the arbitration hearing, but will otherwise bear their respective costs incurred in connection with the arbitration. The parties agree to use all reasonable commercial efforts to ensure that the arbitrator is selected promptly and that the arbitration hearing is conducted no later than three (3) months after the arbitrator is selected. The arbitrator may not award punitive or exemplary damages against any Party or any other relief in excess of the limitations set forth herein. The arbitrator’s award shall adhere to the plain meaning of this Agreement and to applicable law, and shall be supported by written findings of fact and conclusions of law. The judgment and award of the arbitrator will be final and binding on each Party. Judgment upon the award may be entered in any United States federal or state court having jurisdiction.

 

15.                                INSURANCE

 

15.1                            TCS shall maintain, during the term of this Agreement, at its own expense, the following insurance:

 

15.1.1                   Worker’s Compensation and related insurance as prescribed by the law of the state in which the work is performed; and

 

15.1.2                   Comprehensive general liability insurance and, if the use of automobiles is required, comprehensive automobile insurance, each with limits of at least USD $2,000,000 for combined single limit for bodily injury, including death, and/or property damage.

 

16.                                MISCELLANEOUS

 

16.1                            Neither Party shall perform or use the TCS Products or Services in any manner nor for any purpose which violates the laws or regulations of the jurisdiction in which the TCS Products or Services are being provided.

 

16.2                            Customer shall not perform any service bureau work, grant multiple-user licenses, or enter into any time-sharing arrangements using Software licensed under this Agreement, except as expressly authorized in writing by TCS, provided that Customer’s use of the software in providing service to its customers shall not be deemed to violate this Section 16.2.

 

16.3                            Any provision or provisions of this agreement which in any way contravenes the law of any jurisdiction in which this Agreement is effective shall, in such jurisdiction, to the extent of such contravention of law, be deemed severable and ineffective. Such severance shall not affect any other provision hereof or the validity of this Agreement, unless one or more essential purposes of the Agreement is rendered ineffective, in which case either Party may terminate the Agreement without cause in that jurisdiction by notice to the other Party within a reasonable period.

 

16.4                            No waiver by either Party to any provisions of this Agreement shall be binding unless made expressly and confirmed in writing. Any such waiver shall relate only to such matter, non-compliance or breach as it relates to and shall not apply to any subsequent or other matter, non-compliance or breach.

 

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16.5                            The relationship between and among the Parties hereto shall be that of independent contractors only, and without limiting the foregoing shall not be that of partners. Nothing herein contained shall be deemed to constitute a partnership between and amongst them, merge their assets, or their fiscal or other liabilities or undertakings. Nothing herein contained shall allow a Party to act as an agent of any other party, except that TCS may be considered a limited agent of Customer when TCS is acting on the behalf of and at the direction of the Customer for the limited purpose of transmitting E9-1-1 data to Public Safety Answering Points (PSAPs). TCS shall be solely responsible for its own employees, including without limitation with regard to their employment, compensation, benefits and taxes relating to their employment. No TCS employee shall be deemed to be an employee of Customer for any purpose.

 

16.6                            This Agreement, (which includes Exhibit A) sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and merges, supersedes, terminates and otherwise renders null and void any and all prior discussions, negotiations and agreements between them. Neither of the Parties shall be bound by any conditions, definitions, representations or warranties with respect to the subject matter of this Agreement other than as expressly provided herein.

 

16.7                            This Agreement, and all the rights and duties of the Parties arising from or relating in any way to the subject matter of this Agreement or the transaction(s) contemplated by it, shall be governed by, construed and enforced in accordance with the laws of the State of New York (excluding any conflict of laws provisions of the State of New York that would refer to and apply the substantive laws of another jurisdiction). To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 14, the Parties agree to submit to the personal and exclusive jurisdiction of the courts located within the state of New York and waive any objection as to venue or inconvenient forum.

 

16.8                            For a period of one year from the termination of this Agreement, Customer and TCS each agree not to solicit the employment of any employee or consultant of the other Party who has been directly involved in the performance of services under this Agreement; provided that the employment of an employee of the other Party who replies to a general advertisement or employment listing not specifically targeted to employees of the other Party shall not be prohibited by this Section 16.8.

 

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By its signature below, each Party signifies its agreement to the foregoing.

 

AGREED:

 

TeleCommunication Systems, Inc.			CUSTOMER
BY:	/s/ Richard A. Young		BY:	/s/ John S. Rego
Signature			Signature
Richard A. Young			John S. Rego
Name			Name
Exec. VP & COO			CFO
Title			Title
June 8, 2005			6-8-05
Date			Date

 

 

Attachments:

 

Exhibit A: General Statement of Work (To be mutually agreed and incorporated by amendment to the Agreement)

Exhibit B: VoIP i1 9-1-1 Statement of Work

 

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TeleCommunication Systems, Inc.
Western Office
2401 Elliott Avenue, Second Floor
Seattle, WA 98121
Phone 206-792-2000
Fax 206-792-2051
www.telecomsys.com

 

TeleCommunication

Systems

Enabling Convergent Technologies®

 

TCS VoIP E9-1-1
   Exhibit A General Statement of Work
For Vonage Network Inc.

 

 

7/1/2005

 

 

CONFIDENTIAL & PROPRIETARY
Limited Distribution to Authorized Persons Only
Created 2005 and Protected as an Unpublished Work
Under the US Copyright Act of 1976.
Copyright © 2005 Telecommunication Systems Inc
All Rights Reserved.

 

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Contents

 

					Page
1.	INTRODUCTION				3
2.	VoIP E9-1-1 TECHNICAL SERVICE OVERVIEW				4
	2.1	TECHNICAL SERVICE OVERVIEW			4
	2.2	TCS’ VoIP E9-1-1 SERVICE COMPONENTS			4
	2.3	VONAGE’S VoIP E9-1-1 SYSTEM COMPONENTS			5
	2.4	GENERAL SERVICE SPECIFICATION			5
		2.4.1	Connectivity		5
		2.4.2	Subscriber Provisioning		6
		2.4.3	Subscriber Location Information Validation		6
		2.4.4	Subscriber Location Database		7
		2.4.5	Call Signaling		7
		2.4.6	Operator Routing Support Service		7
		2.4.7	Service Confirmation		8
		2.4.8	Reporting		8
	2.5	i1 SERVICE SPECIFICATION			9
		2.5.1	Call Routing		9
		2.5.2	Call Delivery		9
		2.5.3	Data Delivery		9
		2.5.4	Default Routing		9
	2.6	i2 SERVICE SPECIFICATION			10
		2.6.1	Call Routing Flow		10
		2.6.2	Call Delivery		12
		2.6.3	Data Delivery		12
		2.6.4	Default Routing		13
3.	VoIP E9-1-1 PROGRAM MANAGEMENT OVERVIEW				14
4.	DEPLOYMENT SERVICES FOR i2 MARKET LAUNCH				15
	4.1	GENERAL PROJECT			15
	4.2	MARKET LAUNCH			15
	4.3	PSAP OUTREACH			15
	4.4	PSAP DEPLOYMENT WORK			16
		4.4.1	Assumptions		16
	4.5	DATA PROVISIONING			17
	4.6	TESTING			17
	4.7	GO-LIVE			17
	4.8	DEPLOYMENT SCHEDULE			17
	4.9	DEPLOYMENT ACCELERATION			18
	4.10	DEPLOYMENT FIRST MOVER ADVANTAGE			18
	4.11	DEPLOYMENT APPROACH			18
5.	TCS VoIP E9-1-1—OPERATIONAL SERVICES OVERVIEW				18
	5.1	FACILITIES			19
		5.1.1	Data Centers		19
		5.1.2	Network Operations Centers		19
		5.1.3	Technical Support		20
		5.1.4	Monitoring		20
		5.1.5	Data Maintenance		21
6.	MILESTONES FOR SERVICE LAUNCH				21
7.	SERVICE LEVEL AGREEMENT				22
8.	PRICING AND BILLING				22
9.	AGREED:				22

 

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1.                                        Introduction

This document is Exhibit A to the Master Sales Agreement (“MSA”) between TCS and Vonage dated June 8, 2005, describes the TCS VoIP e9-1-1 Service to be provided by TCS to Vonage thereunder, explains how the TCS VoIP E9-1-1 Service will work from a technical, deployment, and operational perspective, and sets forth the parties’ respective roles and responsibilities with regard thereto.

 

The document begins with a “Technical Overview” section, which describes the system components and the implementation options available. This is followed by the “Program Management Overview,” which identifies TCS’ services and roles during initial launch of services and during creation of MSAGs for Vonage. The next major section is the “Operational Services Overview,” which details TCS’ roles and responsibilities while operating the VoIP E9-1-1 Solution.

 

Pricing for the VolP E9-1-1 Solution also is attached to this document.

 

TCS and Vonage entered into a letter agreement with an Effective Date of May 31, 2005 (the “Letter Agreement”) which provided for the completion a Demonstration Project of the TCS VoIP E9-1-1 service. (Terms in this paragraph which are capitalized and not otherwise defined refer to terms defined in the Letter Agreement.) The Letter Agreement, by its terms, will expire on July 1, 2005, but the Demonstration Project has not been completed due to circumstances mutually understood between TCS and Vonage. Both parties have agreed to enter into this Exhibit A in order to initiate certain other activities required for full deployment of the service, but with the contingency that if the Demonstration Project does not successfully complete the Acceptance Criteria set forth in Exhibit B of the Letter Agreement by July 15, 2005, then this Exhibit A to the MSA shall become null and void, and the rights and obligations of both TCS and Vonage shall be the same as though this Exhibit A to the MSA was never executed.

 

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2.                                        VoIP E9-1-1 Technical Service Overview

This section describes the technical scope of the TCS VoIP E9-1-1 Service and defines the respective scope of responsibility for TCS and Vonage. Activities or functions described in this Statement of Work as Vonage responsibilities may be undertaken by a third party on behalf of Vonage upon express written authorization by Vonage. Upon receipt of such authorization, TCS will be entitled to deal with such third party for the purposes set forth in such authorization, and will deal with such third party pursuant to Vonage’s written instructions.

 

2.1          Technical Service Overview

The TCS E9-1-1 VoIP Service will support static, nomadic, and mobile VoIP subscribers. TCS will provide to Vonage both an i1 and an i2 solution as specified below in sections 2.5 and 2.6, respectively.

 

2.2          TCS’ VoIP E9-1-1 Service Components

TCS will provide the following components as part of the TCS VoIP E9-1-1 Service:

 

Component		Description
Business to Business (B2B) Provisioning Interface		The TCS B2B interface currently supports and will continue to support civic address validation whereby the provided address is compared against geographic data (e.g., street name, city, state, ZIP), and provisioning of the subscriber address into the SLDB. The B2B interface is based on Simple Object Access Protocol (“SOAP”).
Validation Database (VDB)		Provides a validation interface to the SLDB using Master Street Address Guide (MSAG) data and GIS layer data. The VDB provides both civic and MSAG data validation. Delivery of the MSAG files is the responsibility of the ESGW provider.
		MSAG validation will be made available by TCS in November 2005
Subscriber Location Database (SLDB; a.k.a. LIS)		Stores subscriber location information for use by the VPC.
Service Order Input Database (SOIDB)		Used for provisioning MSAG valid shell records into the ALI database and provisioning ESQKs into the selective router.
VoIP Positioning Center (VPC)		Provides call routing instructions to Vonage’s VoIP network and delivers caller location information to the ALI/PSAP.
Emergency Routing Database (ERDB)		Identifies the Emergency Services Number (ESN), ESQK Pool, Selective Router, and Contingency Routing Number (The 10-digit, PSAP 7x24 emergency number; used if call cannot be routed through the selective router).
ALI Link		Integrates the VPC with V-E2, NENA2, and PAM compliant ALI databases nationally.
Operator Routing Support Service (ORSS)		If Vonage chooses TCS ORSS service, calls that the VPC cannot automatically route to a PSAP will be answered by a call taker and transferred to the appropriate PSAP or first responder. The PSTN connectivity to the ORSS the responsibility of Vonage.
		ORSS available June 30, 2005
Reporting Web		A secure, customer-facing web-based reporting interface.

 

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2.3          Vonage’s VoIP E9-1-1 System Components

To complete the solution, Vonage must provide the following components:

 

Component		Description
Provisioning Server		Provides location provisioning interface to VoIP Subscriber and relays subscriber location information to the SLDB via the B2B Provisioning Interface.
9-1-1 Call/Proxy Server (Soft Switch):		Interacts with VPC to obtain and interpret location-based call routing instructions.
Emergency Services Gateway (ESGW):		Routes 9-1-1 calls to the Selective Router via trunks between ESGW and Selective Routers or via trunks to tandem switches which connect to Selective Routers

 

Both the TCS-provided and Vonage-provided components will use NENA standard interfaces (as set forth in section 2.4.5 below) where applicable. The following diagram represents the solution system components: