EX-10.47









Exhibit 10.47  



DEVELOPMENT AGREEMENT 



        This
DEVELOPMENT AGREEMENT dated as of March 28, 2005, is by and between SONY ELECTRONICS
INC., with offices at 1 Sony Drive, Park Ridge, New Jersey 07656-8003 (“Sony”),
and GLOWPOINT, INC., with an office at 225 Long Avenue, Hillside, New Jersey 07205 (“Provider”). 




WITNESSETH:  



        WHEREAS,
 Sony wishes to engage Provider on a non-exclusive  basis to perform certain services,
 including the creation and delivery of certain deliverables,  as more particularly
 described in this Agreement (the “Services”),  and Provider desires to accept
association with Sony in such capacity. 




        NOW,
 THEREFORE,  in consideration of the mutual covenants and premises  hereinabove and
hereinafter set forth, the parties hereby agree as follows: 




1. SERVICES/SCHEDULE  




        Provider
 shall perform the Services  described in Exhibit A attached to this  Agreement and made
a part hereof for Sony in accordance  with the terms and  conditions  hereof.  The
 implementation  schedule  and  milestones  for the Services are set forth in Exhibit B
hereto. 




2. COMPENSATION 



        A.
       As full and complete  consideration  for the  performance of the Services,  Sony
shall pay Provider such fees and reimburse  such  expenses  as are set  forth on  Exhibit
 C  attached  to this  Agreement  and made a part  hereof.  Sony will have no obligation
to pay any invoice  submitted more than ninety (90) days from when such invoice  should
have been issued.  Any fees payable on a per  diem/per  hour  basis are only for those
 days/hours  actually  worked  by  Provider.  Payment  of such fees is  subject  to
performance of the Services  covered thereby to the reasonable  satisfaction of Sony.
 Provider  represents to Sony that such fees are at least as  favorable  as those
 charged to other  clients of  Provider  for the  performance  of services  similar to
the  Services. Provider will furnish Sony such evidence of reimbursable expenses as Sony
may reasonably request as a condition for their payment. 




        B.
       If Provider  determines that it has any inquiries,  problems or believes there are
errors or  discrepancies  with respect to any amounts due to it pursuant to this
 Agreement,  then Provider shall give Sony notice thereof within ninety (90) days of the
date that the Services which gave rise to the inquiry,  problem and/or  discrepancy,
 etc. were performed.  Provider’s  failure to give  Sony  such  notice  will
 constitute  a waiver  of any and all  right  which  Provider  may have to any
 adjustment,  charge  or reimbursement by reason thereof. 



 




 






        C.
       Provider shall maintain complete and accurate  accounting  records concerning the
performance of the Services and will retain such records for a period of two (2) years
 following  termination  or  expiration of this  Agreement.  Sony will have the right,
upon giving Provider  reasonable  notice,  to audit, at any time during the term hereof
and throughout such period,  Provider’s records relating to the costs, expenses, and
disbursements made or incurred in connection with the performance of the Services. 




3.         KEY PERSONNEL 



        A.
       Provider represents and warrants that Provider’s employees and permitted
 subcontractors  assigned by Provider to perform the Services are qualified to do so. 




        B.
       Provider shall not remove (other than by discharge) any of the employees or
permitted  subcontractors referred to in Paragraph 3A from the performance of the
Services  without giving Sony notice  thereof.  Sony may request in writing the removal
of any of Provider’s  employees or permitted  subcontractors  performing the
Services who interact  directly with Sony  employees  and/or customers  whom Sony, in
good faith,  determines is  unqualified  or not suitable to perform the Services.
 Provider shall have thirty (30) days to resolve any issues  related to employees or
permitted  subcontractors  whose  removal Sony has  requested.  The extent of removal
 shall be at Provider’s  sole  discretion  but will at a minimum  consist of the
 restriction  of the  identified  employee or permitted subcontractors from interacting
with Sony employees and/or customers. 




4.         REPRESENTATIONS AND
WARRANTIES 



        A.
       Provider  represents and warrants to Sony that it has the experience and knowledge
to perform the Services;  that the performance of the Services shall not violate any
proprietary rights of third parties,  including,  without  limitation,  patents,
copyrights or trade  secrets;  and, that the  performance of the Services will not
violate any  applicable  law,  rule,  regulation or contractual  obligations or
confidential  relationships  which Provider may have to or with any third party, or
violate the privacy of any third party from whom Provider may obtain any information in
connection therewith. 




        B.
       Provider  represents  and  warrants  that any  deliverable  and computer  media
 furnished to Sony as part of the Services  shall be free from computer  viruses,  and
any  undocumented  and  unauthorized  methods for  terminating  or disrupting the
operation of, or gaining access to, the  deliverable,  computer  systems or other
computing  resources or data, or other code features which  result in or cause,  in whole
or in part,  directly  or  indirectly,  damage,  loss,  or  disruption  to all or any
part of the computer  systems or other computing  resources and that same will not
 incorporate  any  termination  logic or any means to repossess such  deliverable.  For
these purposes,  “Termination  logic” means computer code that uses the
internal clock of the computer to test for the date  and/or  time (e.g.,  Friday the
13th),  use count,  execution  key,  or any  related  techniques  as a trigger to render
inoperable or otherwise disable the deliverable or any related computer system. 




        C.
       EXCEPT FOR ANY EXPRESS  WARRANTIES  CONTAINED  IN THIS  AGREEMENT,  PROVIDER
 MAKES NO OTHER  WARRANTIES  TO SONY  



 




 






WHATSOEVER,  AND PROVIDER HEREBY
DISCLAIMS ALL OTHER WARRANTIES,  EXPRESS, IMPLIED, OR STATUTORY,  INCLUDING,  WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
RELATING TO ITS PERFORMANCE OF THE SERVICES.  




5. CONFIDENTIALITY 



        A.
       Any  disclosures  of  information  by one party to the other  party  under  this
 Agreement  or  pursuant  to the transactions  contemplated  hereby shall be governed by
the  Confidentiality  and  Non-Disclosure  Agreement between the parties dated January
 25,  2005  (the  “Confidentiality  Agreement”).  The  terms  of the
 Confidentiality  Agreement  will  apply  hereto  and the transactions contemplated
hereby for a period of two (2) years following the termination or expiration hereof. 




        B.
       If, as part of the Services or otherwise, Provider receives Personal Information
(as such term is defined in Exhibit D attached to this Agreement and made a part hereof),
Provider shall comply with the terms and conditions of such Exhibit D with respect to
such Personal Information. 




6. OWNERSHIP 



        A.
       All deliverables  required by the Services and all tangible and intangible
 property,  work products,  inventions and  discoveries  which are
 conceived/developed/created/obtained  by Provider  specifically in connection with the
performance of the Services (the “Work  Product”),  including,  without
 limitation,  all technical notes,  schematics,  software source and object code,
prototypes,  breadboards,  computer  models,  artwork,  literature,  methods,  processes
and  photographs,  shall, as between Sony and Provider,  be owned by Provider,  and all
right, title and interest therein,  including,  without limitation,  patents and
copyrights, will vest exclusively in Provider.  Provider hereby grants to Sony an
unlimited,  worldwide,  non-exclusive,  perpetual, fully paid-up license to use the Work
Product. 




        B.
       All products,  engineering  data,  business plans and information,
 specifications,  drawings,  or other property furnished by Sony to Provider in
connection  with the  performance  of the Services  shall,  as between Sony and Provider,
 remain the exclusive  property of Sony.  Such Sony property will be used by Provider for
no purpose other than the  performance  of the Services. If requested  by Sony,  Provider
 will sign and deliver a written  itemized  receipt or loan  agreement  for all such
 property and be responsible  for its  safekeeping.  Upon the  termination  or expiration
of this  Agreement,  Provider  will  immediately  return such property to Sony. 




7.         TERM, TERMINATION AND
CANCELLATION 



        A.
       This Agreement shall commence on the date first above written and thereafter
 remain in effect,  unless and until terminated as set forth in this Paragraph, until all
duties and obligations of the parties hereunder have been discharged. 



 




 







        B.
       Either party may terminate this Agreement by giving the other party notice of the
other’s  failure to observe and perform any of the terms and  conditions  hereof on
its part to be so observed and  performed  which is not cured  within  thirty (30) days. 




8. NOTICES 



        All
notices and other  communications  required or permitted to be given under this Agreement
 shall be in writing and will be delivered  personally,  or mailed by registered or
certified mail, return receipt requested,  postage prepaid, or sent by reputable
overnight  courier  service or by telex,  telecopy  or other form of rapid  transmission,
 confirmed  by mailing as  described  above, addressed as follows: 


	         	If to Sony:	Sony Electronics
      Inc. 

      1 Sony Drive 

      Park Ridge, NJ 07656 

      Attention: Vice President, Conferencing Solutions

      Facsimile #: (408) 955-5173 

        
		With a copy
      to:               	Sony
      Electronics Inc. 

      16530 Via Esprillo, MZ 7300 

      San Diego, CA 92127 

      Attention: General Counsel, Law Department

      Facsimile #: (858) 942-7597 

        
		If to Provider:	Glowpoint,
      Inc. 

      225 Long Avenue 

      Hillside, NJ 07205 

      Attention: Sherry Harmon 

      Facsimile #: (973) 923-3352







Any notice so addressed and delivered
personally will be deemed given upon receipt. Any notice so addressed and mailed will be
deemed given upon deposit in the United States mails, or if sent by overnight courier
service, on the next business day, or if sent by rapid transmission followed promptly by
mailing, upon receipt of such transmission. Either party may change its address by giving
the other notice thereof in the manner provided in this Paragraph. 



9.         INDEPENDENT CONTRACTOR 



        In
performing  the Services,  Provider  represents  and warrants to Sony that it will act in
the capacity of an independent contractor  and not as an employee or agent of Sony and
will not represent that Provider is an agent or legal  representative  of Sony for any
purpose  whatsoever.  Provider  further  represents and warrants to Sony that it has a
properly  executed and current Form I-9 for each  employee  who will  provide the
 Services  and that any such  employee on visa status is in full  compliance  with such
visa status and that,  where  applicable,  Provider has a valid Labor  Condition
 Application on file covering each and every Sony location where the Services are to be
 performed.  Provider also  represents  and warrants to Sony that it will be solely
 responsible  for the employment and  remuneration  of Provider’s  employees and any
claims with respect  thereto,  



 




 






and will be solely  responsible  for
the withholding and payment of all federal,  state, and local income taxes as well as all
FICA and FUTA taxes  applicable to Provider,  or such employees.  Provider acknowledges
that as an independent contractor,  neither Provider nor any of such employees will be
eligible for any Sony employee benefits, including, but not limited to, vacation,
medical, dental, or pension benefits.  




10.        LIMITATION OF LIABILITY 



        EXCEPT
FOR (I) PAYMENT OF FEES OR CHARGES  ARISING UNDER THIS AGREEMENT AND (II)  LIABILITY FOR
GROSS  NEGLIGENCE OR WILFUL MISCONDUCT  RESULTING IN DEATH,  PERSONAL INJURY OR PROPERTY
 DAMAGE,  EACH PARTY’S ENTIRE  LIABILITY FOR ANY CLAIM,  LOSS,  DAMAGE OR EXPENSE
 FROM ANY CAUSE  WHATSOEVER,  REGARDLESS  OF THE FORM OF ACTION,  WHETHER  IN  CONTRACT,
 TORT  INCLUDING  NEGLIGENCE,  STRICT LIABILITY  OR  OTHERWISE,  SHALL BE  LIMITED  TO
 DIRECT,  PROVEN  DAMAGES  IN AN AMOUNT  NOT TO EXCEED  THE  AGGREGATE  AMOUNT OF ANY
COMMISSIONS  TO WHICH SONY IS ENTITLED  UNDER THE SALES AGENT  AGREEMENT  BETWEEN THE
PARTIES  DATED THE DATE HEREOF (THE “SALES AGENT AGREEMENT”). 




        NEITHER
 PARTY SHALL IN ANY EVENT BE LIABLE TO THE OTHER PARTY FOR ANY  INCIDENTIAL,
 CONSEQUENTAL,  OR ANY OTHER  INDIRECT LOSS OR DAMAGE,  INCLUDING LOST PROFITS OR LOST
REVENUES,  ARISING OUT OF THIS AGREEMENT OR ANY OBLIGATION RESULTING THEREFROM, OR THE
USE OR  PERFORMANCE  OF ANY  SERVICE,  WHETHER IN AN ACTION  FOR OR ARISING  OUT OF ANY
CAUSE  WHATSOEVER,  REGARDLESS  OF THE FORM OF ACTION,  WHETHER IN CONTRACT,  TORT
 INCLUDING  NEGLIGENCE,  STRICT  LIABILITY OR OTHERWISE.  THIS CLAUSE SHALL SURVIVE
 FAILURE OF AN EXCLUSIVE REMEDY. 




11. GENERAL 



        A.
       If, at any time,  Provider or Provider’s  employees are  performing the
Services on Sony’s  premises,  they shall observe the working hours, working rules
and security procedures established therefor by Sony. 




        B.
       Provider shall comply with all federal, state, and local statutes,  ordinances,
and regulations applicable to the carrying on of Provider’s business and the
performance of the Services. 




        C.
       No right or interest in this Agreement shall be assigned or  subcontracted  by
Provider without the prior written consent of Sony,  and no delegation of the
 performance  of the Services or other  obligations  owed by Provider to Sony shall be
made without such consent of Sony, which consents may be withheld for any or no reason. 




        D.
       No course of dealing,  course of performance  or failure of either Party  strictly
to enforce any term,  right or condition of this Agreement shall be construed as a waiver
of any term, right or condition. 



 




 






        E.
       If any paragraph, or clause thereof, of these terms and conditions shall be held
to be invalid or unenforceable in any jurisdiction in which these terms and conditions
apply, then for such jurisdiction the meaning of such paragraph or clause shall be
construed so as to render it enforceable to the extent feasible; and if no feasible
interpretation would save such paragraph or clause, it shall be severed from these terms
and conditions and the remainder shall remain in full force and effect, unless leaving
the remainder in full force and effect would make the Agreement unjust. 




        F.
       This Agreement shall be deemed to have been made in, and shall be construed
pursuant to the laws of, the State of New York without regard to conflicts of laws
provisions thereof. Any waivers or amendments of the terms and conditions hereof will be
effective only if made in writing.  The parties will attempt in good faith to resolve any
controversy or claim arising out of or related to this Agreement promptly by negotiations
between senior executives of the parties who have authority to settle the controversy
(but who do not have direct responsibility for the administration hereof). The disputing
party will give the other party written notice of the dispute. Within twenty (20) days
after receipt of such notice, the receiving party shall submit to the other a written
response. Such disputing party notice and such receiving party response will include: (i)
a statement of its position and a summary of the evidence and arguments supporting its
position; and, (ii) the name and title of the executive who will represent it in the
negotiations. Such executives will meet at a mutually acceptable time and place within
thirty (30) days of the date of the disputing party’s notice and thereafter as often
as they reasonably deem necessary to exchange information and to attempt to resolve the
dispute. If the dispute has not been resolved within sixty (60) days of the disputing
party’s notice, or if either party will not meet within thirty (30) days, either
party may initiate mediation of the dispute in accordance with the Center for Public
Resources’ model procedure for mediation of business disputes. If the dispute is not
resolved pursuant to such mediation procedure within sixty (60) days of the initiation
thereof, or if either party will not participate in such mediation, then either party may
initiate litigation by giving thirty (30) days prior notice to the other party.
Notwithstanding the foregoing, either party may initiate litigation immediately with
respect to any matter arising out of or in connection with the terms and conditions of
this Agreement for which equitable relief is sought. All dates specified in this Section
may be extended by the mutual written agreement of the parties. THE PARTIES HEREBY WAIVE
TRIAL BY JURY IN CONNECTION WITH ANY ACTION OR SUIT ARISING UNDER THIS AGREEMENT OR
OTHERWISE ARISING FROM THE RELATIONSHIP BETWEEN THE PARTIES HEREUNDER. 




        G.
       Except as specifically provided in this Agreement,  the rights and remedies of the
parties set forth herein shall be cumulative and in addition to any rights and remedies
available to them at law and/or in equity therefor. 




        H.
       This Agreement, the Confidentiality Agreement, the Sales Agent Agreement and the
Joint Marketing Agreement between the parties dated the date hereof supersede all prior
oral or written understandings between the parties (including, without limitation, any
prior agreement related to any of the Services) and constitute the entire agreement
between them concerning the subject matter of this Agreement and shall not be
contradicted, explained or supplemented by any course of dealing between the parties or
any of their affiliates.  There are no understandings or representations, express or
implied, not expressly set forth in this Agreement, the Joint Marketing Agreement, the
Sales Agent Agreement and the Confidentiality Agreement.  This Agreement  



 




 






may not be modified or amended
except by a writing signed by the parties.  If there is a conflict between any term or
condition of this Agreement and any term or condition of any Appendix hereto, then the
term or condition in the Appendix will take precedence with respect to the subject matter
of the Appendix and the term or condition in the Agreement will take precedence with
respect to all other matters.  




        IN
WITNESS WHEREOF, the parties have by their duly authorized  representatives  executed
this Agreement as of the Effective Date. 


	Provider:
      

      GLOWPOINT, INC. 

      

      

      By:    /s/ David C. Trachtenberg           

      

      Title: CEO and President                        
      

      	Sony: 

      SONY ELECTRONICS INC.

      

      

      By:    /s/ Michael McCausland                   

      

      Title: GM Visual Communications