MASTER SERVICES AGREEMENT
MessageOne Inc. (“MessageOne”), and the Customer named below (“Customer”) have entered into this Master Services Agreement
(“Agreement”) dated March 15, 2007, which shall be governed by the terms and conditions specified below. The Attachments to this
Agreement provide(s) for, among other things, the various Services (as defined below) to be provided to Customer by MessageOne,
which may include a description of MessageOne’s and its licensor’s proprietary technology enabling Customer to have (i) an
emergency messaging system in the event of a serious disruption or total incapacitation of its e-mail system(s), which system may
include MessageOne’s proprietary ActiveMailbox functionality allowing historical mail retention within selected mailboxes (“EMS” or
“EMS Email Continuity”), (ii) an external hosted mail gateway providing spam filtering and virus protection for the Customer’s
inbound e-mail traffic (“EMS Email Security”), (iii) a securely hosted email archive messaging system (“EMS Email Archive”), (iv)
an emergency notification system and crisis management center in the event of a serious disruption or total incapacitation of its
communication system(s) (“ALERTFIND”), (v) an advanced business continuity and disaster recovery management solution that
assures the availability of mission critical applications (“OneSwitch”), or (vi) any other product or service offered by MessageOne as
set forth in an Attachment (“Other Products” and together with EMS, EMS Email Security, EMS Email Archive, AlertFind and
OneSwitch are referred to herein as the “M1 Solution”), the Fees (as defined below) to be paid by Customer to MessageOne for those
Services, the Agreed Term (as defined below), and certain requirements of Customer necessary for MessageOne to perform the
Services. The Services for an M1 Solution are described and defined in their respective Attachments to this Agreement and are
governed by the terms and conditions of this Agreement unless otherwise specified in writing on the Attachments.
1. CONTRACT TERM. This Agreement shall continue in
effect for so long as there is an Attachment in effect. The term of
an Attachment, and Customer’s rights to use the Services
described in that Attachment, shall begin on the Commencement
Date (as defined in that Attachment) and continue in effect for
the Agreed Term stated in that Attachment. Thereafter, unless
otherwise stated in a particular Attachment, the Attachment shall
automatically renew for successive renewal terms of equal
duration to the Agreed Term, unless either party gives written
notice of termination to the other at least ninety (90) days before
the end of the then current term. This Agreement and each
Attachment is a non-cancelable contract that may be terminated
only in accordance with its express terms.
2. FEES AND EXPENSES. The Base Fees and the Additional
Fees set forth in each Attachment (the “Fees”) shall be invoiced
by MessageOne in accordance with that Attachment to the billing
address set forth in Section 8 of this Agreement.
Any
out-of-pocket expenses or fees reasonably incurred by
MessageOne on behalf of Customer and with Customer’s prior
authorization, shall be invoiced by MessageOne as and when
incurred. Customer’s payments shall be due within thirty (30)
days after receipt of each invoice. Any and all fees not paid
when due shall bear interest at the lesser of 1.5% per month or
the maximum interest rate permitted by applicable law.
Customer shall be responsible for any sales, use, excise or
comparable taxes assessed or imposed upon the Services
provided or the amounts charged under this Agreement.
3. CONFIDENTIALITY. It may be necessary during the set
up and performance of the Services for the parties to exchange
Confidential Information. “Confidential Information” means
any information whether oral, or written, of a private, secret,
proprietary or confidential nature, concerning either party or its
business operations, including without limitation: (a) Customer’s
data and software, and the details of Customer’s computer
operations and procedures, (b) MessageOne’s access control
systems, specialized network equipment and techniques related to
the applicable M1 Solution, its Instructions (as defined in the
applicable Attachment), pricing and use policies, which include
trade secrets of MessageOne, and (c) the terms of this
Agreement. Each party agrees to use the same degree of care to
AUSTIN 437030v1 53086-00002
protect the confidentiality of the Confidential Information of the
other party and to prevent its unauthorized use or dissemination
as it uses to protect its own Confidential Information of a similar
nature, but in no event shall exercise less than due diligence and
reasonable care. Each party agrees to use the Confidential
Information of the other party only for purposes related to the
performance of this Agreement. All Confidential Information
remains the property of the party disclosing the information and
no license or other rights to Confidential Information is granted
or implied hereby. Notwithstanding the foregoing, neither party
will be liable for disclosure of any information received under
this Agreement and an Attachment which: (i) is generally known
or available by publication, commercial use, or otherwise; (ii) is
known by the receiving party prior to the negotiations of this
Agreement through no wrongdoing and is not subject to
restriction at the time of disclosure; (iii) is independently
developed by the receiving party without the use of Confidential
Information; (iv) is lawfully obtained from a third party without
violation of a confidentiality obligation to the disclosing party; or
(v) results from the order of a court or government agency,
provided advance notice of the disclosure obligation is given to
the disclosing party.
4. TERMINATION. This Agreement may be terminated by
written notice of termination: (i) by either party if the other party
breaches any of its obligations under this Agreement and the
breach is not substantially cured within 30 days of receipt of
notice of such breach (or, if an effort to cure is being diligently
pursued, within such time as is reasonably necessary to complete
the cure); (ii) by MessageOne if Customer uses the Services in
violation of the terms of this Agreement and such violation is not
cured within five days of receipt of notice of such violation; (iii)
by Customer, immediately upon MessageOne’s receipt of notice,
if there exists any violation of any law, rule, regulation or policy
of any government authority having jurisdiction over
MessageOne or by reason of any decision of a court or other
governmental authority having jurisdiction which violation or
decision has the effect of precluding MessageOne from
furnishing the Services; or (iv) by MessageOne, if Customer does
not make timely payment of amounts due under this Agreement
in accordance with an Attachment and fails to cure such payment
default within five days of receipt of written notice.
5. LIABILITY AND INDEMNIFICATION. UNDER NO
CIRCUMSTANCES AND UNDER NO LEGAL THEORY,
WHETHER IN TORT, CONTRACT, OR OTHERWISE,
SHALL EITHER PARTY OR ANY OF ITS RESPECTIVE
AFFILIATES BE LIABLE TO THE OTHER PARTY FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOST DATA, LOST PROFITS, COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER
FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER
COMMERCIAL DAMAGES OR LOSSES ARISING FROM
OR RELATED TO THIS AGREEMENT OR AN
ATTACHMENT. UNDER NO CIRCUMSTANCES (OTHER
THAN FOR PAYMENT OBLIGATIONS UNDER THIS
AGREEMENT) SHALL EITHER PARTY’S TOTAL
LIABILITY
UNDER
THIS
AGREEMENT
(WHEN
AGGREGATED WITH LIABILITY OF THE AFFILIATES OF
SUCH PARTY) EXCEED THE TOTAL OF ALL FEES
ACTUALLY PAID BY CUSTOMER TO MESSAGEONE.
Subject to the limitations set forth in this Section 5, Customer
shall indemnify defend and hold harmless MessageOne (and its
affiliates and their respective employees and agents) against any
claims, actions, damages, losses or liabilities arising out of any
action brought against MessageOne by a third party as a result of
Customer’s use of the Services. Subject to the limitations set
forth in this Section 5, MessageOne shall indemnify, defend and
hold harmless Customer (and its affiliates and their respective
employees and agents) against any claims, actions, damages,
losses or liabilities arising out of any action brought against
Customer by a third party as a result of the willful misconduct of
MessageOne in its performance of the Services or arising out of
any action brought against Customer by a third party as a result
of the actual or alleged infringement of a third party’s intellectual
property by the Services.
EXCEPT AS SPECIFICALLY STATED IN THIS
AGREEMENT,
MESSAGEONE
MAKES
NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY
WARRANTY
OF
MERCHANTABILITY,
NONINFRINGEMENT, FITNESS FOR A PARTICULAR
PURPOSE, OR CONFORMITY TO ANY REPRESENTATION
OR DESCRIPTION.
6. CONSIDERATION. The parties hereto acknowledge
and agree that the limited warranty and limitation of liability
were considered by the parties in entering into this Agreement,
which, but for these limitations, they would not have entered into.
Customer acknowledges that the Fees reflect the allocation of
risk between the parties and that MessageOne would not have
entered into this Agreement without these limitations on its
liability, and Customer agrees that these limitations shall apply
notwithstanding any failure of essential purpose of any limited
remedy.
7. FORCE MAJEURE. If the performance of any obligation
under this Agreement is prevented, restricted or interfered with
by reason of natural disaster, fire or other casualty or accident,
strikes or labor disputes, war or other violence, any law, order,
proclamation, regulations, ordinance, demand or requirement of
any government agency, or any other act or condition beyond the
AUSTIN 437030v1 53086-00002
reasonable control of the parties hereto (“Event of Force
Majeure”), the party so affected, upon giving prompt notice to
the other party, shall be excused from such performance to the
extent of such prevention, restriction or interference; provided
that the party so affected shall use commercially reasonable
efforts to avoid or remove such causes of nonperformance and
shall continue performance hereunder with the utmost dispatch
whenever such causes are removed. The party suffering an Event
of Force Majeure shall notify the other party within 15 days of
the occurrence of such Event of Force Majeure and within 30
days shall furnish the other party with a recovery plan of action.
Without limiting the foregoing, a party suffering an Event of
Force Majeure shall use commercially reasonable efforts to limit
the impact of the Event of Force Majeure on such party’s
performance of this Agreement.
8. NOTICE. All notices, consents and other communications
under this Agreement shall be in writing and shall be deemed to
have been received on the earlier of the date of actual receipt or
the third business day after being sent by United States first class
mail, properly addressed and postage prepaid. Customer’s
address for notice and billing is stated in the Attachment.
MessageOne’s address for notice 11044 Research Boulevard,
Suite C-500, Austin, Texas 78759.
9. LICENSE. MessageOne hereby grants Customer a nonexclusive, non-transferable, non-sublicensable license under
MessageOne’s intellectual property rights to use the applicable
M1 Solution and its applicable Instructions in connection with
the Services to be provided to Customer pursuant to this
Agreement. Except as set forth above, Customer acknowledges
and agrees that all rights, title and interest in the applicable M1
Solution and its applicable Instructions (as defined in an
Attachment), including technology and trade secrets embodied
therein and any custom developments created or provided in
connection with or related to this Agreement, including all
copyrights, patents, trade secrets, trade dress and other
proprietary rights, and any derivative works thereof, shall belong
solely and exclusively to MessageOne or its licensors, and
Customer shall have no rights whatsoever in any of the
foregoing.
10. RESTRICTIONS. Customer acknowledges that its use of
the applicable M1 Solution and its applicable Instructions is
limited to the scope of the license granted under Section 9 and
that this Agreement does not permit Customer to use the
applicable M1 Solution and its applicable Instructions other than
as provided herein or in any applicable Attachment. Customer
acknowledges that the applicable M1 Solution and its applicable
Instructions constitute valuable trade secrets of MessageOne and
its licensors. Unless otherwise expressly permitted in this
Agreement or an Attachment, without MessageOne’s prior
written consent, Customer shall not:
(i)
knowingly or negligently permit other individuals or
entities to use or copy the applicable M1 Solution and its
applicable Instructions except in strict accordance with
the terms and conditions of this Agreement or an
Attachment; or
(ii)
modify, translate, alter, adapt, reverse engineer,
decompile, disassemble (except to the extent applicable
laws specifically prohibit such restriction), reproduce,
distribute or display, or create derivative works,
compilations or collective works based on the applicable
M1 Solution and its applicable Instructions, which is a
valuable trade secret of MessageOne or its licensors; or
(iii)
merge the applicable M1 Solution with any other
software; or
(iv)
sublicense, rent, lease, grant a security interest in, or
otherwise transfer rights to the applicable M1 Solution
and its applicable Instructions except as specifically
permitted herein; or
(v)
use the applicable M1 Solution to operate in or as a
time-sharing,
outsourcing,
or
service
bureau
environment or in any way allow third-party access to
the applicable M1 Solution.
11. OWNERSHIP OF CUSTOMER DATA, PRIVACY.
MessageOne acknowledges and agrees that:
(i)
all right, title, and interest in and to Customer Data
(as defined below) shall belong solely and
exclusively to Customer; and
(ii)
that the Customer Data shall not be utilized by
MessageOne for any purpose other than to perform
the Services required under this Agreement.
For purposes of this Agreement, “Customer Data” shall mean
information collected by MessageOne in connection with
providing the applicable M1 Solution to Customer, it being
acknowledged by Customer that such Customer Data is being
made available to and to the extent necessary licensed to
MessageOne in order for MessageOne to provide the applicable
M1 Solution.
12. PUBLICITY. Customer agrees that during an Agreed
Term, MessageOne may publicly refer to Customer, orally and in
writing, as a customer of MessageOne and use a logo provided by
Customer to display on MessageOne’s Website.
Customer
further agrees to be the subject of a written case study and press
release. The final copy of such a case study and press release
shall be subject to Customer's written approval prior to release to
any other party. In addition, Customer agrees to make its
representatives available to serve as references (for response to
customer prospect inquiries) for the M1 Solution, provided that
such reference requests are limited to a reasonable number and
frequency. Further, notwithstanding anything to the contrary,
either party may disclose the existence and general nature of this
Agreement. Any other reference by either party to the other party
requires written consent.
13. ASSIGNMENT. Except as expressly provided in this
Agreement, nothing contained in this Agreement is intended to
confer upon any third party any rights, benefits, or remedies of
any kind or character whatsoever. No party may assign this
Agreement or an Attachment, in whole or in part, without
obtaining the prior written consent of the other party which
consent will not be unreasonably withheld or delayed (provided
either party may withhold consent if the proposed assignee is, or
is affiliated with, a competitor of such party), except that, without
the other party’s consent, either party may assign this Agreement
AUSTIN 437030v1 53086-00002
along with all Attachments executed in accordance herewith to
any successor entity or purchaser of substantially all the assets of
the assigning party’s business.
14. GOVERNING LAW. This Agreement has been
negotiated, executed and delivered at, and shall be deemed to
have been made in, Texas. This Agreement shall be governed
by and interpreted in accordance with the laws of the State of
Texas, without reference to choice of law or conflict of laws
principles that direct the application of the laws of a different
state.
15. DISPUTE RESOLUTION. The parties will attempt to
settle any claim or controversy arising out of this Agreement or
an Attachment through consultation and negotiation in good faith
and in a spirit of mutual cooperation. If those attempts fail, then
such dispute or difference may upon written demand of either
party be settled by binding arbitration under the rules of the
American Arbitration Association before a single arbitrator.
Arbitration shall take place in Austin, Texas and all parties
consent to personal jurisdiction in the federal and state courts
located Travis County, Texas. An award of arbitration may be
entered as a judgment in any court having jurisdiction in the
matter, or application may be made to such court for acceptance
of the award and for an order of enforcement, as the case may
require. Notwithstanding the above, the parties acknowledge and
agree that issues or disputes related to violations of Section 3, and
Section 10, or any matter otherwise regarding Confidential
Information or the infringement or validity of any patent,
trademark, copyright, trade secret, or trade dress shall not be
governed by this section, except that the parties agree that any
litigation regarding such issue or dispute shall take place in the
courts located in Travis County, Texas, and all parties consent to
personal jurisdiction in the federal and state courts located in
Travis County, Texas for the resolution of any such issues or
disputes.
16. CONSTRUCTION; COUNTERPARTS. The section
headings in this Agreement are solely for convenience and will
not be considered in its interpretation. The Attachments to this
Agreement are hereby incorporated herein as if set forth herein in
full and may be executed without any further amendment to this
Agreement. This Agreement has been reviewed and negotiated
by the parties, and each party has had the opportunity to review
this Agreement with counsel of its own choosing; accordingly,
this Agreement shall not be construed strictly for or against either
party. Pronouns used in this Agreement shall be construed to
include the masculine, feminine or neuter, as the identity of the
antecedent may require. If a conflict arises between the terms of
this Agreement and an Attachment, the terms of this Agreement
shall control unless the Attachment expressly states that it
controls. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original for all
purposes, and together shall constitute one and the same
document. Telecopied signatures shall be relied on as original
signatures in all respects.
17. SEVERABILITY. If any provision of this Agreement or an
Attachment is held by final judgment of a court of competent
jurisdiction to be invalid, illegal or unenforceable, such invalid,
illegal or unenforceable provision shall be severed from the
remainder of this Agreement or an Attachment (as the case may
be), and the remainder of this Agreement or an Attachment (as
the case may be) shall be enforced. In addition, the invalid,
illegal or unenforceable provision shall be deemed to be
automatically modified, and, as so modified, to be included in
this Agreement or an Attachment (as the case may be), such
modification being made to the minimum extent necessary to
render the provision valid, legal and enforceable.
Notwithstanding the foregoing, however, if the severed or
modified provision concerns all or a portion of the essential
consideration to be delivered under this Agreement or an
Attachment (as the case may be) by one party to the other, the
remaining provisions of this Agreement or an Attachment (as the
case may be) shall also be modified to the extent necessary to
equitably adjust the parties’ respective rights and obligations
hereunder.
18. BINDING EFFECT. Subject to the limitations herein
before expressed, this Agreement and any Attachment will inure
to the benefit of and shall be binding upon the parties, their
successors, administrators, and assigns.
19. ENTIRE AGREEMENT. This Agreement, together with
any Attachment executed in accordance herewith, constitute the
entire agreement between the parties with respect to the subject
matter hereof, and supersede and replace all prior and
contemporaneous understandings and agreements, written or oral,
regarding such subject matter. No amendment or modification of
this Agreement or an Attachment will be binding unless in
writing and signed by a duly authorized representative of both
parties.
AUSTIN 437030v1 53086-00002
Executed to be effective as of the date stated at the beginning of this Agreement.
MESSAGEONE INC.
LEVEL 3 COMMUNICATIONS, LLC
By:
Print Name:
Print Title:
Date Signed:
By:
Print Name:
Print Title:
Date Signed:
________________________
________________________
________________________
________________________
________________________
________________________
________________________
________________________
ALERTFIND ATTACHMENT TO MASTER SERVICES AGREEMENT
This Attachment is entered into by the undersigned and, except as expressly set forth herein, is governed by that certain Master Services
Agreement dated March 15, 2007 by and between the undersigned.
MESSAGEONE:
LEVEL 3 COMMUNICATIONS
MessageOne Headquarters and Notice Address:
Headquarters and Notice Address:
11044 Research Boulevard
Suite C-500
Austin, Texas 78759
Attn: President
1025 Eldorado Boulevard
Broomfield, Colorado 80021
AGREED TERM: 36 months from March 15, 2007 (the “Commencement Date”).
SERVICES.
ALERTFIND.
MessageOne hereby agrees to provide Customer, MessageOne’s and it licensor’s proprietary AlertFind Service
(“AlertFind”), a hosted, emergency notification and escalation service that can be used by Customer in the manner described in the user
manual provided to Customer in connection with this Attachment (the “Instructions”). Upon initiation of a notification using AlertFind,
MessageOne will send to the Recipient (as defined below) notifications via the channels defined in each Recipient’s AlertFind profile, which
may include voice, emails, SMS, fax devices (the “Devices”). MessageOne will provide complete audit reporting on all attempted, delivered
and receipt acknowledged notification attempts as well as overall system performance associated with those notification attempts. AlertFind
may, if set forth below, include MessageOne’s proprietary Inbound IVR functionality allowing initiation and retrieval of notifications for all
Recipients (as defined below).
REQUIREMENTS OF CUSTOMER. To enable MessageOne to provide the Services set forth above, Customer agrees to use its best
efforts to provide MessageOne with administrative access to Customer’s IT environment (i.e. permission based access to any specific
emergency contact data that the Customer wants to be part of the Services), Customer’s computer systems and appropriate personnel to the
extent necessary for MessageOne to provide the Services. MessageOne shall not be responsible for any inability to provide the Services in
the manner set forth in this Attachment which results from the inability of MessageOne to employ MessageOne’s standard practices in
deploying and managing AlertFind, or from the failure of Customer or Customer’s employees to follow the guidelines set forth in the
Instructions to use AlertFind.
BASE FEES.
Fees for the AlertFind service shall be $33,000 per year, payable annually in advance. Fees include:

Emergency notification coverage for up to 7,000 Customer employees, contractors, vendors and partners (“Recipients”).

20,750 Annual Domestic United States voice notification minutes per year (the “Included Annual Minutes”).

41,500 Annual Domestic U.S. SMS message attempts per year (the “Included Annual SMS Messages”)

3,500 Annual Domestic United States Fax Pages (the “Included Annual Fax Pages”)

Unlimited email notification attempts

Unlimited administrative accounts defined as those accounts possessing authority to initiate an outbound notification

AlertFind Inbound IVR System provisioned with one (1) US toll-free number for accessing all Recipients; it being acknowledged
that minutes used during Customer’s use of Inbound IVR shall reduce Customer’s Included Annual Minutes.

All support for install, training, and usage.
AUSTIN 437030v1 53086-00002




7 x 24 x 365 Operator assistance for sending notification.
Access to shared outbound voice notification capacity infrastructure.
Automatic data import and updates from any data source (i.e. LDRPS)
End-User Documentation
For purposes of this Attachment, voice notification minutes are the total minutes used by Customer’s usage of AlertFind for both
outbound notification and inbound calls.
MessageOne may increase all fees chargeable under this Attachment by up to 8% per contract year, by giving Customer at least ninety (90)
days prior written notice.
ADDITIONAL FEES.
In addition to the Fees enumerated above, Customer may incur the following additional Fees for the Services:



Any and all per minute fees for voice notifications in excess of the Included Annual Minutes in the Domestic United States (as
defined below) shall be charged at $0.20 per minute (“Per Minute Excess Rate”). Rates for attempted and delivered voice
notifications to Devices outside the Domestic United States shall be charged at the Per Minute Excess Rate plus the applicable
surcharge for such non-Domestic United States country. The surcharges for each non-Domestic country are available upon
Customer’s request.
Any and all SMS Messages in excess of the Included Annual SMS Messages inside the Domestic United States shall be charged at
$0.10 per SMS Message (“Per SMS Excess Rate”). Rates for non-Domestic United States SMS Messages shall be charged at the
Per SMS Excess Rate plus the applicable surcharge for such non-Domestic United States country. The surcharges for each nonDomestic country are available upon Customer’s request.
Any and all per page fees for fax notifications in excess of the Included Annual Fax Pages inside the Domestic United States shall
be charged at $.20 per each fax notification page (“Per Fax Page Excess Rate”). Rates for non-Domestic United States Fax Pages
shall be charged at the Per Fax Page Excess Rate plus the applicable surcharge for such non-Domestic United States country. The
surcharges for each non-Domestic country are available upon Customer’s request.
For purposes of this Attachment the term “Domestic United States” shall be defined as the lower 48, contiguous United States and the
District of Columbia.
Any additional fees shall be invoiced and paid quarterly in arrears by Customer in accordance with the Master Services Agreement. To
the extent Customer desires to subscribe for additional Services, such additional Services shall be first agreed to in writing by the parties
and paid by Customer in accordance with the Master Services Agreement.
MESSAGEONE INC.
LEVEL 3 COMMUNICATIONS, LLC
By:
Print Name:
Print Title:
Date Signed:
By:
Print Name:
Print Title:
Date Signed:
________________________
________________________
________________________
________________________
AUSTIN 437030v1 53086-00002
________________________
________________________
________________________
________________________