exv10w11w1



 





			
	Terms and Conditions
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Exhibit 10.11.1


***** CONFIDENTIAL TREATMENT REQUESTED


	 	 	 
	
	 	
	 	 	 
	 
	 	






Terms and Conditions



In order to submit BREW applications, you must first accept the VerizonWireless Terms and
Conditions.




BREWTM APPLICATION LICENSE AGREEMENT



This BREWTM Application License Agreement (“Agreement”) is a legally binding agreement between
you and Cellco Partnership d/b/a Verizon Wireless, a Delaware Partnership, having a place of
business at 180 Washington Valley Road, Bedminster, New Jersey 07921 (“Verizon Wireless”). This
Agreement sets forth the terms and conditions applicable to Verizon Wireless’ reproduction and
distribution of any of the BREWTM software applications developed by you and posted on the online
BREWTM Catalog maintained by Qualcomm, Incorporated (“Applications”). Capitalized terms used herein,
but not defined herein, shall have the same meaning ascribed to them in the BREWTM Developer
Agreement between you and Qualcomm, Incorporated.




     1. License Grant.



          1.1 License. You hereby grant to Verizon Wireless a world-wide, assignable, non?exclusive,
royalty-free license to: (i) copy, reproduce, display and perform all Applications on the Carrier
Catalog, in object code format only, including all related documentation; and (ii) exploit, use,
distribute, transmit, sublicense, transfer and assign an unlimited number of copies of all
Applications to End Users, in object code format only, including all related documentation. With
respect to each Application, the foregoing license shall commence on the date the Application is
downloaded into the Carrier Catalog and will terminate on the earlier of (a) the date the
Application is removed from the Carrier Catalog, or (b) the date of termination of this Agreement.
No such removal or termination will terminate an End User’s rights or licenses to continue to use
those Applications that were downloaded by the End User prior to such removal or termination. All
rights not granted in this Agreement are hereby reserved by you.




          1.2 License Restrictions. Except to the extent permitted by this Agreement or by applicable law,
Verizon Wireless agrees not to: (i) copy, reproduce, display, perform, exploit, use, distribute,
transmit, sublicense, transfer or assign the Applications; (ii) decompile, reverse engineer,
disassemble or modify the Applications; or (iii) remove, efface or obscure any copyright or other
proprietary notices or legends from the Applications.




          1.3 Verizon Wireless Property and Rights. You hereby acknowledge and agree that nothing in this
Agreement grants to you a right or license in any patents, copyrights, trade secrets, trademarks,
logos or other property or rights of Verizon Wireless.




     2. Removal of Applications from the Carrier Catalog.



          2.1 Removal Request. Under the BREWTM Developer Agreement, you may request, in writing, the removal
of an Application(s) from the BREWTM Catalog. Any such Application(s) will be removed from the
Carrier Catalog at the same time that such Application(s) is removed from the BREWTM Catalog. You
acknowledge and agree, however, that such Application(s) will not be removed from the Carrier
Catalog, even if you ask Verizon Wireless to remove such Application(s), until such time as the
Application(s) is removed from the BREWTM Catalog. You also agree and acknowledge that the removal
of an Application(s) from the Carrier Catalog will not terminate an End User’s rights or licenses
to continue to use such Application(s) if the Application(s) was downloaded by the End User prior
to removal.




          2.2 Removal by Verizon Wireless. Verizon Wireless may at any time, at its sole discretion and for
any reason, remove an Application(s) from the Carrier Catalog. You acknowledge and agree that the
removal of an Application(s) by Verizon Wireless from the Carrier Catalog will not terminate an End
User’s rights or licenses to continue to use such Application(s) if the Application(s) was
downloaded by the End User prior to removal.




     3. The DAP.



          3.1 Payments by Qualcomm, Incorporated. You recognize and acknowledge that all payments made to you
by Qualcomm, Incorporated under the BREWTM Developer Agreement constitute a “pass through” payment
of






 





			
	*****	 	The omitted portions of this exhibit have been filed with the Securities and Exchange
Commission pursuant to a request for confidential treatment under Rule 406 promulgated under
the Securities Act of 1933.






 









 








			
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any and/or all amounts which may be owed to Qualcomm, Incorporated by Verizon Wireless for
any/all Applications downloaded from the Carrier Catalog by End Users. Further, you recognize and
acknowledge that you only will be entitled to receive payments from Qualcomm, Incorporated under
the BREWTM Developer Agreement if, through the efforts of Verizon Wireless, End Users download the
Applications from the Carrier Catalog. Nonetheless, you recognize and acknowledge that all payments
made by Qualcomm, Incorporated to you, any failure by Qualcomm, Incorporated to make such payments
and/or any disputes over such payments will be governed exclusively by the BREWTM Developer
Agreement. VERIZON WIRELESS BEARS NO RESPONSIBILITY OR LIABILITY TO YOU FOR ANY SUCH PAYMENTS,
FAILURE TO MAKE SUCH PAYMENTS AND/OR DISPUTES CONCERNING SUCH PAYMENTS.




          3.2 Establishing the DAP. You and Verizon Wireless may choose from time to time to discuss and
negotiate a DAP for one or more Applications. If you and Verizon Wireless negotiate a DAP for one
or more Applications, you must submit a pricing template(s) for the Application(s) in accordance
with the BREWTM Developer Agreement.




          3.3 No Payments. Notwithstanding the description of payments in this Section 3 (The DAP), no
payments will be made by one party to the other under this Agreement.




     4. Limitation of Obligations. You are under no obligation under this Agreement to develop any
Applications, post any Applications on the BREWTM Catalog or keep any Applications posted on the
BREWTM Catalog. Verizon Wireless is under no obligation under this Agreement to download into the
Carrier Catalog any Applications, market any Applications downloaded into the Carrier Catalog to
End Users or ensure that End Users download any Applications.



     5. Ownership. Subject to the licenses granted in this Agreement, and the BREWTM End User License
Agreement, you are and will remain the owner of all right, title and interest in and to each
Application, including all intellectual property rights therein.



     6. Service Level Agreement. You agree to comply with the applicable performance obligations set
forth in the service level agreement (“Service Level Agreement”) attached hereto as Exhibit A with
respect to any and all Applications that utilize the BREWTM
API-labled 
I-SOCKET. The terms of the
Service Level Agreement are incorporated herein by reference. In the event of any conflicts between
the terms of this Agreement and the Service Level Agreement, the express terms of the Service Level
Agreement shall govern and control solely with respect to the subject matter in conflict.



     7. Representations and Warranties.




          7.1 No Viruses. You represent and warrant to Verizon Wireless that each Application will be free
from code that: (i) might disrupt, disable, harm or otherwise impede the operation of any software,
firmware, hardware, wireless communications device, computer system or network; and/or (ii) would
enable you or anyone else to access the Application for any reason unless permitted by this
Agreement. Verizon Wireless may pursue any rights in law or at equity to remedy any harm caused by
any Application that violates this Section 7.1 (No Viruses).




          7.2 Application Representation and Warranty. Each Application will be deemed accepted by Verizon
Wireless at the time it is downloaded into the Carrier Catalog. You represent and warrant to
Verizon Wireless that, for as long as an Application remains on the Carrier Catalog, the
Application will perform in accordance with applicable documentation and standards, including,
without limitation, the specifications for True BREWTM Certification and any specifications posted
by Verizon Wireless on the extranet maintained for developers of Applications (“Extranet”). In the
event Verizon Wireless believes that this representation and warranty is breached, it will provide
written notice to you and, within 10 days, you will: (i) repair the Application so as to bring its
performance into conformity with applicable documentation and standards; (ii) replace the
Application with a version of the Application that performs in accordance with applicable
documentation and standards; or (iii) if neither (i) nor (ii) above is commercially feasible,
ensure removal of the Application from the BREWTM Catalog, at which time Verizon Wireless will
remove the Application from the Carrier Catalog as required by this Agreement, and then this
Agreement will terminate with respect to the Application as set forth in Section 10.2
(Termination). THE FOREGOING WILL BE VERIZON WIRELESS’ SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF A
BREACH OF THE FOREGOING REPRESENTATION AND WARRANTY. THIS LIMITATION OF REMEDY DOES NOT APPLY TO
ANY APPLICATION THAT VIOLATES SECTION 7.1 (NO VIRUSES).




          7.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS
AGREEMENT, NEITHER YOU NOR VERIZON WIRELESS MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES. EACH
PARTY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR
A PARTICULAR PURPOSE.



     8. Indemnification.




 









 





			
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          8.1 Indemnification. You hereby agree to defend, indemnify and hold harmless Verizon
Wireless and all End Users (each an “Indemnified Party”) against any and all claims, demands,
causes of action, damages, costs, expenses, penalties, losses and liabilities, whether under a
theory of negligence, strict liability, contract or otherwise, incurred or to be incurred by an
Indemnified Party, including, but not limited to, reasonable attorneys’ fees, arising out of,
resulting from or related to any copying, reproduction, display, performance, exploitation, use,
distribution, transmission, sublicensing, transfer or assignment of an Application(s) or related
documentation permitted under this Agreement that allegedly causes harm or causes an infringement
of any patent, copyright, trademark, trade secret or other property rights of one or more third
parties arising in any jurisdiction throughout the world. Verizon Wireless agrees to provide you
with written notice of any claim subject to indemnification, allowing you to have sole control of
the defense of such claim and any resulting disposition or settlement of such claim; provided,
however, that Verizon Wireless may participate in the defense of a claim at its own expense. Any
disposition or settlement of a claim that imposes any liability on or affects the rights of Verizon
Wireless will require the prior written consent of Verizon Wireless.




          8.2 Limited Remedies. If you determine that an Application becomes, or is likely to become, the
subject of an infringement claim or action, you may: (i) procure, at no cost to Verizon Wireless,
the right to continue distributing and/or sublicensing such Application or any portion thereof; or
(ii) replace or modify the Application, or any portion therefore, to render it non?infringing,
provided the replaced or modified version of the Application performs in accordance with applicable
documentation and standards and passes True BREWTM Certification. Alternatively, if neither (i) nor
(ii) above are commercially feasible, you must (a) ensure removal of the Application from the BREWTM
Catalog, at which time Verizon Wireless will remove the Application from the Carrier Catalog as
required by this Agreement, and (b) terminate this Agreement with respect to such Application. No
such removal and termination will terminate an End User’s rights or licenses to continue to use
Applications downloaded by the End User prior to such removal or termination.




          8.3 Exceptions. You will have no liability under this Section 8 (Indemnification) for any claim or
action where such claim or action would have been avoided but for modifications to an Application,
or any portion thereof, made by Verizon Wireless or an End User in violation of this Agreement.
Similarly, you will have no liability under this Section 8 (Indemnification) for any claim or
action where such claim or action would have been avoided but for the combination or use of an
Application, or any portion thereof, with other products, processes or materials not supplied by
you if such combination or use was not intended or anticipated.




          8.4 Sole Remedy. The obligations and remedies set forth in this Section 8 (Indemnification) shall
be the sole and exclusive remedies of Verizon Wireless with regard to an Application’s infringement
of third party patent, copyright, trademark, trade secret or other property rights.




     9. Liability Limitations.



          9.1 No Consequential Damages. EXCEPT FOR THE OBLIGATIONS AND LIABILITIES ARISING UNDER
SECTION 8 (INDEMNIFICATION) OR A BREACH OF SECTION 1.2 (LICENSE RESTRICTIONS) OR SECTION 7.1 (NO
VIRUSES), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN ANY MANNER, UNDER ANY
THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY, FOR ANY
CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR STATUTORY DAMAGES, INCLUDING,
WITHOUT LIMITATION, LOSS OF DATA, REVENUES, BUSINESS OR PROFITS. THE PARTIES ACKNOWLEDGE AND AGREE
THAT THE LIMITATIONS CONTAINED IN THIS SECTION 9 (LIABILITY LIMITATIONS) APPLY REGARDLESS OF
WHETHER THEY WERE ADVISED OF OR WERE AWARE OF THE POSSIBILITY OF THE DAMAGES SET FORTH IN THE
PRECEDING SENTENCE.




          9.2 Limits on Liability. EXCEPT FOR THE OBLIGATIONS AND LIABILITIES ARISING UNDER SECTION 8
(INDEMNIFICATION) OR A BREACH OF SECTION 1.2 (LICENSE RESTRICTIONS) OR SECTION 7.1 (NO VIRUSES), IN
NO EVENT SHALL THE TOTAL, CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY REGARDING ANY AND
ALL CLAIMS AND CAUSES OF ACTION, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, IN TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS RECEIVED BY YOU FOR THE APPLICATIONS
DISTRIBUTED BY VERIZON WIRELESS TO END USERS.




          9.3 Other. THE LIMITATIONS SET FORTH IN THIS SECTION 9 (LIABILITY LIMITATIONS) SHALL BE DEEMED TO
APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RULE AND REGULATION, NOTWITHSTANDING THE
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES
ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT
REASONABLE, AND THAT THE FOREGOING LIMITATIONS IN THIS SECTION 9 (LIABILITY LIMITATIONS) ARE AN
ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.




     10. Term and Termination.



          10.1 Term. This Agreement will become effective with respect to each Application on the date
Verizon Wireless downloads the Application into the Carrier Catalog, and will remain in effect
until terminated as provided in





 









 








			
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this Agreement.




          10.2 Termination. Verizon Wireless may terminate this Agreement with respect to any or all
Applications, with or without cause, upon 30 days written notice to you. Upon termination of this
Agreement, Verizon Wireless agrees: (i) to remove from the Carrier Catalog all subject
Applications; and (ii) to cease permitting End Users, or any other persons, to download the subject
Applications from the Carrier Catalog. Further, this Agreement will terminate with respect to any
or all Applications on the date such Applications are removed from the BREWTM Catalog, as well as
the Carrier Catalog, in accordance with the BREWTM Developer Agreement and this Agreement. You
acknowledge and agree that the termination of this Agreement with respect to an Application does
not terminate the rights or licenses of an End User to continue to use the Application if the
Application was downloaded by the End User prior to termination.




          10.3 Survival. Upon termination of this Agreement, the following provisions will survive
termination: (i) Section 5 (Ownership); (ii) Section 8 (Indemnification); (iii) Section 9
(Liability Limitations); (iv) Section 10 (Term and Termination); and (v) Section 11 (General).




     11. General.



          11.1 Dispute Resolution. Any claim or controversy arising out of or relating to this Agreement
will be settled by an independent arbitration administered by the American Arbitration Association
under the Wireless Industry Arbitration rules as modified by this Agreement. The arbitration shall
occur before a single, neutral arbitrator and, in rendering a decision, the arbitrator shall apply
the substantive law of the State of New York. The decision of the arbitrator shall be enforceable
in the Federal District Court for the district where the arbitration is held.




          11.2 Advertising. You agree not to place advertisements on any Application, whether advertisements
for other Applications or third party advertisements, without the prior written consent of Verizon
Wireless.




          11.3 End User Information. You agree not to use, copy or disclose, for any purpose other than to
perform your obligations under this Agreement, any personally identifiable information about End
Users that you gather as a result of their download or use of the Applications.




          11.4 Publicity and Confidentiality. You may not issue any marketing or other communications
intended for public disclosure, including, without limitation, press releases, advertisements and
websites, that reference Verizon Wireless or use the Verizon Wireless logo without the prior
written consent of Verizon Wireless unless specifically permitted by the publicity guidelines
posted by Verizon Wireless on the Extranet. Further, you agree that the terms and conditions of
this Agreement are the confidential and proprietary information of Verizon Wireless, and that you
will not disclose such information to any third party without the prior written consent of Verizon
Wireless. This obligation of confidentiality will continue for the longer of: (i) five (5) years
from the effective date hereof; or (ii) for as long as this Agreement is in effect, plus and
additional two (2) year period thereafter.




          11.5 Export Control Compliance. Verizon Wireless agrees that it will not export or re-export any
Applications, or any portions of thereof, in any form in violation of the laws, rules and
regulations of the United States or any other jurisdiction or country without the appropriate
United States and foreign government export or import licenses or other official authorization.




          11.6 Government Legend. Both parties acknowledge and agree that the Applications are “commercial
computer software” as defined in DFARS 252.227 7014, and that they have been developed exclusively
at private expense. Pursuant to FAR 12.212 or DFARS 252.227 7202 and their successors, as
applicable, all use, reproduction and disclosure of the Applications is governed by this Agreement.




          11.7 Severability. In the event any provision of this Agreement is found to be invalid, illegal or
unenforceable, the validity, legality and enforceability of any of the remaining provisions shall
not in any way be affected or impaired, and a valid, legal and enforceable provision of similar
intent and economic impact shall be substituted therefore.




          11.8 Waiver. The failure by either party to require the performance of the other party under any
provision of this Agreement will not affect the right of such party to require performance under
said provision at any time thereafter. Nor will waiver by either party of a breach of any provision
of this
Agreement be taken or held to be a waiver of the provision itself.




          11.9 Construction. The headings and captions of this Agreement are inserted only for convenience
and identification and are in no way intended to define, limit or expand the scope and/or intent of
this Agreement.




          11.10 Relationship of Parties. You and Verizon Wireless are independent contractors under this
Agreement,






 









 








			
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and nothing herein shall establish any relationship of partnership, joint venture,
employment, franchise or agency between you and Verizon Wireless. Neither you nor Verizon Wireless
shall have the power to bind the other or incur obligations on the other’s behalf without the
other’s prior written consent.




          11.11 Assignment. Verizon Wireless may assign this Agreement in whole without your consent, but you
may not assign this Agreement in whole or in part without the prior written consent of Verizon
Wireless. This Agreement will bind and inure to the benefit of the respective successors and
permitted assigns of Verizon Wireless.




          11.12 Compliance with Laws. Both parties agree to comply with all applicable laws, rules and
regulations in connection with their activities under this Agreement.




          11.13 Governing Law. This Agreement is governed by the laws of the State of New York, without
regard to its conflict of law principles. The United Nations Convention on Contracts for Sale of
International Goods does not apply to this Agreement.




          11.14 Notices. All notices required by this Agreement must be in writing and delivered, via United
States mail, postage prepaid, courier or facsimile to the other party as agreed to by the parties.
Notice will be deemed effective upon receipt.




          11.15 Entire Agreement and Amendment. This Agreement completely and exclusively states the
agreement between you and Verizon Wireless regarding its subject matter. This Agreement supersedes
and replaces all prior or contemporaneous understandings, representations, agreements or other
communications between you and Verizon Wireless, whether oral or written, regarding its subject
matter. No modification of this Agreement will be valid except in writing signed by you and Verizon
Wireless.




Exhibit A




SERVICE LEVEL AGREEMENT



This Service Level Agreement is Exhibit A to the BREWTM Application License Agreement between
you and Verizon Wireless. Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the BREWTM Application License Agreement.




I. Help Desk Technical Support



Upon reasonable request, whether initiated via telephone, facsimile or fax, you will provide
technical support services to designated contacts at Verizon Wireless (“Help Desk Technical
Support”). Help Desk Technical Support will include, but is not limited to, consultation on the
operation and utilization of the Applications and problem resolution for failures of the
Applications as reported by Verizon Wireless. All Help Desk Technical Support will be provided from
your facility.




II. End User Technical Support



As set forth below, you will use commercially reasonable efforts to provide technical and service
related support to End Users who download one or more of the Applications from the Carrier Catalog
on a 24 hours a day, seven (7) days a week basis by both telephone and electronic mail (“End User
Technical Support”). End User Technical Support will include, but is not limited to, the functions
set forth below.





	 	•	 	Establishment and maintenance of a toll free telephone number for End Users to call to obtain
End User Technical Support.
	 
	 	•	 	Establishment and maintenance of an electronic mail address specifically for End Users to write
to obtain End User Technical Support.
	 
	 	•	 	Answering the toll free telephone number with a standard, professional support greeting.
	 
	 	•	 	Answering all messages sent to the electronic mail address using a standard, professional
format.
	 
	 	•	 	Troubleshooting of World Wide Web connection problems when brought to your attention by End
Users in calls to the toll free telephone number or in messages to the electronic mail address.
	 
	 	•	 	Provide basic End User assistance on navigation and use of the Applications when requested by
End Users in calls to the toll free telephone number or in messages to the electronic mail address.
	 
	 	•	 	Assist End Users with registration, password and user profile issues when requested in calls to
the toll free telephone number or in messages to the electronic mail address.






	 	•	 	Log all calls to the toll free telephone number and all messages to the electronic mail
address, each a Problem Action Request (“PAR”), and keep records of those logs for at least two (2)
years.
	 
	 	•	 	Conduct ongoing testing of the Applications to proactively troubleshoot and resolve problems.




 









 











			
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III. PARS



The response to PARs will be determined by the severity of the problem reported by the End
Users. You and Verizon Wireless will assign trouble severity based on the codes set forth in the
following table (“Severity Code”).




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Maximum	 	Minimum	 	Initial
	Severity	 	 	 	Restoral	 	Status	 	Response
	Code	 	Description	 	Time	 	Intervals	 	Time
	 

	 	A Severity Code 1 PAR shall be defined as a “Critical
problem” when the problem with the Application(s) causes:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	    •  a complete outage of a product
or service; or
	 	 	 	 	 	 
	1

	 	    •  a reoccurring temporary outage of a product or
service; or

	 	*****
	 	*****
	 	*****
	 

	 	    •  data loss or corruption; or critical job/data
integrity defect.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Example: 404 Error on a top two tier service category.	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	A Severity Code 2 PAR shall be defined as a “Major
Problem” when the problem with the Application(s) causes:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	         •  severe or moderate degradation of the capability of
the Application(s); or
	 	 	 	 	 	 
	2

	 	    •  materially different performance of essential features
and functions of the Application(s) from those normally
experienced by End Users; or

	 	*****
	 	*****
	 	*****
	 

	 	    •  an inability to service End
User help requests related to the Application(s); or
	 	 	 	 	 	 
	 

	 	    •  a failure of non-essential features or functions of the
Application(s); or
	 	 	 	 	 	 
	 

	 	    •  a failure that requires on-going
intervention by Verizon Wireless to maintain the
Application(s).
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Example: Customers receive “compile error” messages when
attempting to read a news item.	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	A Severity Code 3 PAR shall be defined as a “Minor Problem” when
the problem with the Application(s) causes:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	    •  minimal degradation of an End User experience; or
	 	 	 	 	 	 
	3

	 	    •  materially different performance of non-essential
features and functions of the Application(s) from those normally
experienced by End Users.

	 	*****
	 	*****
	 	*****
	 
	 	 	 	 	 	 	 	 
	 

	 	Example: Service personnel must manually log on to site
with the user name and password	 	 	 	 	 	 





1.
Third Party Interaction



To the extent necessary, you will interface with third party software, hardware, content and/or
application providers used by you to establish, maintain and/or provide the Applications to Verizon
Wireless for distribution to End Users. In connection with Help Desk Technical Support and End User
Technical Support, neither Verizon Wireless nor End Users will be handed off to such third parties
for any reason.




2. PAR Initiation and Tracking



Severity assessment of PARs shall be assigned by the party detecting the problem and communicating
the problem to the other party. In addition, PARs shall be tracked via a common issue number. Both
parties shall agree on the



 




*****   The omitted portions of this exhibit have been filed with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act
of 1933.



 









 








			
	Terms and Conditions
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severity assessment and issue number in the initial communication regarding each PAR. Both
you and Verizon Wireless will communicate about PARs though a single support telephone number. Such
telephone numbers will be exchanged at the time that this Agreement becomes effective, and they
will be staffed 24 hours a day, seven (7) days a week. A root cause analysis of each PAR will be
provided by you within  ***** for all Severity Level 1 and Severity Level 2 PARs. Further,
you will provide a written event assessment within ***** of the resolution of all PARs.



3. Escalations



Escalations shall occur if response times, status intervals, initial response times or post-event
documentation times are not met. You and Verizon Wireless shall exchange escalation contacts and
their numbers through the Vice President level at the time that this Agreement becomes effective.



4. Upgrade Coordination


You will give Verizon Wireless at least 24 hours written notice of the installation of any new
software releases related to one or more of the Applications, as well as the installation of any
new hardware related to one or more of the Applications. Included in the notice will be any
expected changes to the Applications.



5. Maintenance


Scheduled downtime for the Applications shall not exceed two (2) hours and shall not occur during
normal working hours.



IV. Service Levels



You will ensure that the performance and availability of each of the Applications is
monitored on a continuous, 24 hours a day, seven (7) days a week basis. This monitoring shall
encompass the performance and availability of the underlying network within your span of control,
any and all servers used to provide and support the Applications, disk space utilization and
Internet connectivity. Further, you will ensure that each of the Applications is available for End
Users to download from the Carrier Catalog, as well as for use by End Users after download, on
average *****% of the time during each calendar month. This excludes scheduled maintenance periods.



You will ensure that each transaction related to each of the Applications will complete within *****
seconds or less, on average, excluding network transfer time. This metric shall be attained at
least *****% of the time on a weekly basis.



The network between your hardware and software, on the one hand, and the Internet, on the other
hand, will be configured such that no single component failure will significantly impact the
availability or performance of the Applications. This network will be sized such that no single
connection runs at more than *****% average utilization for a ***** minute peak period each day.



V. Reporting



You are responsible for reporting to Verizon Wireless on a monthly basis your actual
performance against each of the service levels set forth in
Section IV, above. The parties will
mutually agree on the precise content, format and method for delivering these reports at the time
this Agreement becomes effective.



VI. Non-Performance



If you
fail to meet one or more of the service levels set forth in Section IV, above, Verizon
Wireless either may (a) give you written notice along with 30 days to cure the non-performance or
(b) terminate this Agreement in accordance with Section 10 of this Agreement.



VII. Changes to Service Levels



Upon mutual, written agreement, you and Verizon Wireless may change the service levels set
forth herein from time to time.




	 	 	 	 	 
	Name:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 






o I accept the VerizonWireless Terms and Conditions




 




*****   The omitted portions of this exhibit have been filed with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act
of 1933.