Master Service Agreement - Juno Online Services LP and Upgrade Corp. d/b/a SOFTBANK Services Group
SOFTBANK
MASTER SERVICE AGREEMENT
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CONFIDENTIAL
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This Master Service Agreement is made this 1st day of August, 1998, between Juno
Online Services, L.P., a Delaware Limited Partnership, with offices located at
120 West 45th Street, New York, New York 10036 (hereinafter referred to as
"CLIENT") and Upgrade Corporation of America d/b/a SOFTBANK Services Group, a
Delaware Corporation, with offices located at 699 Hertel Avenue, Buffalo, New
York 14207-2398 (hereinafter referred to as "SOFTBANK").
RECITALS
WHEREAS, CLIENT desires to have certain technical support services provided
to its user base; and
WHEREAS, SOFTBANK has certain experience and capabilities in handling the
tasks involved in providing technical support services; and
WHEREAS, CLIENT wishes to obtain the benefit of such experience and
capabilities by utilizing certain technical support services of SOFTBANK; and
WHEREAS, SOFTBANK agrees to supply CLIENT with the Services of its staff to
perform the Services described in this Agreement and CLIENT agrees to use such
Services of SOFTBANK's staff for such purposes;
NOW, THEREFORE, in consideration of the covenants derived hereunder the
parties agree as follows:
1. SOFTBANK SCOPE OF SERVICES
SOFTBANK agrees to use its best efforts to provide one or more of the
following Services, as mutually agreed upon and further set forth in the Service
Fee & Responsibilities Attachment and detailed Specifications Form mutually
agreed upon between SOFTBANK and the CLIENT ("the Services").
2. SOFTBANK RESPONSIBILITIES
SOFTBANK will provide to CLIENT its Services in a professional workmanlike
and timely manner and as set forth in the Service Fee & Responsibilities
Attachment and detailed Specifications Form.
3. CLIENT RESPONSIBILITIES
In order for SOFTBANK to fulfill its obligations under this Agreement, it
is necessary that CLIENT reasonably cooperate and assist SOFTBANK in SOFTBANK's
performance of its obligations under this Agreement by timely performing its
responsibilities set forth in the Service Fee & Responsibilities Attachment. In
the event either party fails to perform its Responsibilities in a timely manner
and such failure causes either party to incur additional cost, that party shall
reimburse the other party for such additional costs, provided they are
reasonable and documented and provided there has been notice by the other party
of a failure that will cause such costs to be incurred.
4. DEDICATED REPRESENTATIVES
SOFTBANK shall appoint one qualified staff member ("SOFTBANK ACCOUNT
SERVICE REPRESENTATIVE"), who will (i) have authority to act for SOFTBANK and to
make binding decisions with respect to this Agreement, unless otherwise limited
herein; (ii) submit material and information requests to CLIENT; (iii) provide
access to SOFTBANK's staff to answer questions; and (iv) provide schedules and
plans to CLIENT for CLIENT's review and/or approval.
CLIENT shall appoint one qualified staff member ("CLIENT ACCOUNT SERVICE
REPRESENTATIVE"), who will (i) have authority to act for CLIENT and to make
binding decisions with respect to this Agreement; (ii) review promptly
information supplied by SOFTBANK; (iii) provided and assume responsibilities for
accuracy of CLIENT's information and data required by this Agreement; and (iv)
provide access to CLIENT staff to answer questions, and provide training to
SOFTBANK as more fully described in the Service Fee & Responsibilities
Attachment.
CONFIDENTIAL & PROPRIETARY
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(THIS SECTION HAS BEEN INTENTIONALLY REMOVED)
6. CONFIDENTIALITY
Both parties acknowledge that each party will be disclosing to the other
confidential and proprietary information relating to their past, present and
future activities, products, services, customer lists, customer profiles,
business plans, business practices and other information designated as
confidential ("CONFIDENTIAL INFORMATION"). The Confidential Information may be
disclosed orally or in writing, and all information, unless otherwise indicated,
shall be deemed to be confidential and proprietary. Confidential Information,
however, does not include information that: (i) is now or subsequently becomes
generally available to the public through no fault or breach on the part of
recipient; (ii) recipient can demonstrate to have had Confidential Information
rightfully in its possession prior to disclosure; (iii) is independently
developed by recipient without the use of any Confidential Information (other
than Properties defined in Section 7); or (iv) recipient rightfully obtains from
a third party who has the right to transfer or disclose it. In addition, both
parties agree that (a) all information disclosed or learned from CLIENT's
end-users; and (b) the properties shall be considered CLIENT Confidential
Information for all purposes hereunder.
Both parties agree to hold the Confidential Information confidential and
will not disclose it to any unauthorized employee of CLIENT and/or SOFTBANK, and
will prevent dissemination to any unauthorized person who is not an employee of
CLIENT or SOFTBANK without the prior written consent of the other party. Both
parties agree not to use the Confidential Information of the other party for any
purpose other than the fulfillment of its obligation under this Agreement.
Notwithstanding anything to the contrary herein, recipient is permitted to make,
and this Agreement does not restrict, disclosure of Confidential Information of
the other party in a judicial, legislative or administrative investigation or
proceeding or to a government or other regulatory agency, provided that, to the
extent permitted by, and practical under, the circumstances, recipient provides
to discloser (i) prompt notice prior to any such disclosure hereunder; or (ii)
if prompt notice is not permitted or practical under the circumstances, prompt
notice after such disclosure.
SOFTBANK acknowledges that it has all employees enter into an agreement
whereby they agree not to disclose or use the Confidential Information.
SOFTBANK agrees that as a result of SOFTBANK's performance of the Services,
SOFTBANK enhances or improves the CLIENT's customer lists, such enhancements or
improvements will be the property of CLIENT and shall be considered CLIENT
Confidential Information for all purposes hereunder.
All Confidential Information remains the property of the disclosing party
and no license or other rights in the Confidential Information are granted
hereby to the other party. Further, both parties agree to return all
Confidential Information of the other party regardless of the media in which it
is stored, including, but not limited to, records released to either party for
marketing and distribution Services, immediately upon either party's written
request and in the case of termination or expiration of this Agreement, within
thirty (30) days of such event.
Both parties acknowledge that unauthorized disclosure or use of
Confidential Information could cause irreparable harm and significant injury
which may be difficult to ascertain. Accordingly, both parties agree that the
aggrieved party will have the right to seek immediate injunctive relief from
breaches of this Agreement, in addition to any other rights and remedies it may
have.
7. PROPRIETARY RIGHTS
CLIENT shall own all right, title and interest in and to hard copy
materials or information resulting from Services, including without limitation,
suggestions and solutions proposed by SOFTBANK to resolve problems raised by
CLIENT's end-users (collectively, the "Properties"). SOFTBANK acknowledges that
the Properties shall be "work made for hire". CLIENT shall be considered the
author of the Properties for the purpose of copyright. If the Properties or any
portion thereof is determined not to be "work made for hire", then SOFTBANK
hereby irrevocably assigns, transfers, releases and conveys to CLIENT all right,
title and interest in and to the Properties. SOFTBANK shall, upon CLIENT's
request, enter into any further assignments or waivers of the Properties or the
intellectual property rights related to the Properties as CLIENT deems necessary
or appropriate. As between SOFTBANK and CLIENT, CLIENT shall have the exclusive
rights to the Properties. For all purposes hereunder, the Properties shall be
deemed the Confidential Information of CLIENT.
SOFTBANK shall be the sole and exclusive owner of any technology created by
SOFTBANK which is intended for use among its clients, and any modifications or
derivative works to said technology that are created by SOFTBANK in connection
with its performance of this Agreement. CLIENT acquires no right to use,
transfer, assign, license or otherwise
CONFIDENTIAL & PROPRIETARY
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exploit in any manner any portion thereof for any purpose whatsoever, unless
CLIENT shall have first negotiated and obtained on terms acceptable to SOFTBANK
and CLIENT an agreement stating otherwise to be incorporated herein.
8. WARRANTIES; WARRANTY DISCLAIMERS
SOFTBANK WARRANTS AND REPRESENTS THAT IT HAS ALL RIGHTS, LICENSES AND
AUTHORIZATIONS REQUIRED TO ENTER INTO AND PERFORM THIS AGREEMENT AND THE
PERFORMANCE BY SOFTBANK OF ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT WILL NOT
VIOLATE ANY FEDERAL, STATE OR LOCAL LAW, RULE OR REGULATION.
EXCEPT AS PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS OF EITHER PARTY'S WORK OR PRODUCT FOR ANY PARTICULAR
PURPOSE. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL,
INCIDENTAL, OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS)
INCURRED BY EITHER PARTY AS A RESULT OF ANY BREACH BY EITHER PARTY ARISING FROM
OR RELATED TO THIS AGREEMENT, EXCEPT AS PROVIDED IN SECTION 9 (INDEMNIFICATIONS)
HEREOF OR BREACHES OF A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER.
The end-user will receive the benefits and warranties contained in the
Client software license agreement that accompanies each and every copy of the
product.
9. INDEMNIFICATIONS
Notwithstanding any of the following, CLIENT will not be liable to
indemnify SOFTBANK under the terms of any provision to the extent SOFTBANK's
liability is in any way the result of SOFTBANK's error.
a) CLIENT shall indemnify and hold SOFTBANK harmless from any demands,
claims or suits from third parties for damages or expenses, including attorneys'
fees, arising out of the use of CLIENT's products by end-users or SOFTBANK's use
of CLIENT provided resources or information including, but not limited to, suits
or proceedings based upon (i) a claim of infringement or wrongful use of any
patent, copyright, trade secret or other right of any third party; or (ii) a
claim of product defect or failure to conform to published specifications; or
(iii) claims related to SOFTBANK's providing technical support assistance to
CLIENT's customers based upon information provided by CLIENT; or (iv) SOFTBANK's
authorized use of CLIENT's Confidential Information, in SOFTBANK's performance
of this Agreement as provided herein; or (v) a claim of an unfair or deceptive
act and practice of the CLIENT; or (vi) any acts, which do not comply with
applicable State or Federal law and were performed by SOFTBANK at the direction
of the CLIENT.
b) In the event the CLIENT decides to obtain its own telephone carrier to
be used by SOFTBANK, the CLIENT shall not hold SOFTBANK liable and shall
indemnify and hold SOFTBANK harmless from any demands, claims or suits for
damages or expenses, including attorneys' fees and costs arising from suits or
proceedings based upon a claim resulting from any disruption of telephone
service to SOFTBANK which renders SOFTBANK unable to perform its services as
stated in this Agreement.
SOFTBANK shall indemnify and hold CLIENT harmless from any demands, claims
or suits from third parties for damages or expenses, including attorneys' fees,
arising out of (i) any and all claims that the Services provided under this
Agreement infringe any patent, copyright, trade secret or other right of any
third party; or (ii) any and all claims related to SOFTBANK's providing
technical support assistance to CLIENT's customers which is not based upon
information provided by CLIENT; or (iii) SOFTBANK's unauthorized use of CLIENT's
Confidential Information; or (iv) any and all claims of unfair or deceptive acts
and practices of SOFTBANK; or (v) any and all acts which do not comply with
applicable State or Federal law and were performed by SOFTBANK.
10. REMITTANCE PROCESSING
(THIS SECTION HAS BEEN INTENTIONALLY REMOVED)
11. SOFTBANK FEES
CLIENT agrees to pay SOFTBANK for the performance of its Services in
accordance with the Service Fee & Responsibilities Attachment.
Within fifteen (15) days from the end of each calendar month, SOFTBANK will
submit an invoice to CLIENT for Services performed through the end of the
calendar month. Upon approval from CLIENT, SOFTBANK may submit an invoice, on a
weekly basis, to CLIENT for services performed in accordance with the fee
schedule set forth in the Service Fee
CONFIDENTIAL & PROPRIETARY
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& Responsibilities Attachment if the monthly transaction fees exceed [****]
dollars ($[****]). Said invoice will be representative of services performed for
the week prior to the previous week. SOFTBANK will provide prior written notice
of said change. All undisputed amounts on SOFTBANK invoices to CLIENT are
payable within thirty (30) days of receipt of invoice.
SOFTBANK reserves the right, without further notice, to assess a one
percent (1%) finance charge (12% per annum) on any unpaid balances not paid
within thirty (30) days. In the event of a dispute between CLIENT and SOFTBANK
concerning fees, CLIENT agrees to make payment on the balance of fees that are
not in dispute in accordance with the terms of this section. CLIENT must provide
a reasonable justification for any invoice disputes within one hundred twenty
(120) days from the date of invoice.
All amounts payable to SOFTBANK by CLIENT or to CLIENT by SOFTBANK shall be
in United States currency, unless otherwise specifically provided in accordance
with this Agreement.
Set-up Fees and deposits must be paid prior to SOFTBANK's Services being
provided. A minimum monthly volume commitment fee, as set forth in the Service
Fee & Responsibilities Attachment, is charged per program for each calendar
month or portion of a calendar month that a program is active.
12. COMMENCEMENT OF SERVICES
SOFTBANK shall provide Services to CLIENT by the start date set forth in
the Specifications Form. It is understood by the parties that if SOFTBANK
assigns CLIENT a toll free number, toll number, P.O. box or fax number prior to
the commencement of SOFTBANK Services (for use in mailers, ads or other
announcements) such numbers will only be activated upon SOFTBANK's receipt of a
fully executed contract and applicable set-up fees and deposits. Following the
termination of this Agreement, SOFTBANK shall transfer SOFTBANK provided
telephone numbers to CLIENT, if CLIENT so requests, provided all undisputed
outstanding invoices have been paid. This provision shall not apply to CLIENT
owned lines.
13. MODIFICATIONS
Definitions: "Material Change" is defined as any addition or alteration
of the terms of this Agreement that
(i) materially alters the original intent of the parties
as expressed in this Agreement; or
(ii) is materially inconsistent with any provision of this
Agreement; or
(iii) adds services or fees not included in this
Agreement; or
(iv) materially alters services or fees included in this
Agreement.
"Non-Material Change" is defined as a change that
(i) curtails Services and appropriate fees as included in
this Agreement; or
(ii) affects product additions or deletions; or
(iii) affects product price, weight, shipping and handling
or product release date to SOFTBANK; or
(iv) other change which does not constitute a Material
Change as defined above.
Modification: A material change shall be executed in writing and signed by
a duly authorized representative of each party. A non-material change shall be
agreed to by the CLIENT's Account Representative. Such Representative will have
the authority and will execute a Specifications Form or Set-Up Billing Form. Any
of the above executed documents shall be incorporated as part of this Agreement
and shall be binding upon both parties. Any changes will be implemented as per
CLIENT's request, upon SOFTBANK's receipt of an executed addendum or appropriate
form and at a time mutually agreed upon by both parties.
14. TERM OF AGREEMENT
The term of this Agreement shall be for [****] years from the date of this
Agreement except as earlier terminated or extended pursuant to the terms herein.
At such time the parties shall have the opportunity to renew and/or renegotiate
this Agreement. However, either party may renegotiate pricing, at any time after
the first anniversary date of this Agreement, but no more frequently than once
in any twelve (12) month period by giving written notice of the intent to
renegotiate along with a written revised pricing schedule. If the parties cannot
agree upon pricing modifications within sixty (60) days of notification, either
party may terminate this Agreement in accordance with the default remedy (i),
set forth below. The parties shall mutually agree upon renewal terms. If no new
Agreement is made and the initial two (2) year term or the then current term
should expire, this Agreement shall remain in force and continue on a month to
month basis.
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[****]Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
CONFIDENTIAL & PROPRIETARY
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Notwithstanding the above, either party by written notice can terminate
this Agreement during its term, (i) for default if such party has previously
given written notice including a detailed description of the default by the
other party and the other party has not cured such default within sixty (60)
days of receipt of written notice; or (ii) for default due to non-payment of
fees under this Agreement, fifteen (15) days after written notice is provided to
recipient, except for bonafide disputes; or (iii) without cause if such party
has previously given written notice of termination which termination shall be
effective sixty (60) days after such written notice by CLIENT and ninety (90)
days by SOFTBANK. If this Agreement is terminated by Client without cause, the
parties agree that, with respect to only the last month during the Agreement,
Client shall waive the [****]% fee reduction that would otherwise apply (as
specified in Section C of the Service Fee and Responsibilities Attachment) if
SOFTBANK failed to satisfy its service level obligations during that month and
the previous month. In the event of default, the parties shall have all remedies
provided in this Agreement or otherwise available under law.
Upon termination, each party shall return any Confidential Information
of the other party. Upon request and at the direction of the CLIENT, SOFTBANK
agrees to transfer SOFTBANK provided toll free number phone lines accordingly,
provided that all undisputed amounts due SOFTBANK are paid and CLIENT has met
all obligations pursuant to this Agreement. This provision shall not apply to
CLIENT owned lines.
15. GENERAL PROVISIONS
a) CLIENT grants SOFTBANK permission to install CLIENT's product on
SOFTBANK's internal network solely for SOFTBANK internal training purposes only
in connection with the Services provided hereunder.
b) CLIENT acknowledges that SOFTBANK will retain a copy of the customer
order database as support for all transactions processed by SOFTBANK for a
period of four (4) years. CLIENT agrees to cooperate and comply with any
applicable laws or regulations which otherwise require SOFTBANK to retain copies
of CLIENT's records. SOFTBANK acknowledges that such records are Confidential
Information of the CLIENT.
c) SOFTBANK reserves the right to pass on any unanticipated price increases
from its suppliers that directly affect the pricing of this Agreement and are
effective during the term of this Agreement. This includes pass through costs
which may include freight, telephone, credit card fees and postal rates. Said
price increases shall be effective upon implementation of the price change by
the supplier. SOFTBANK will endeavor to provide prior written notice of such
price increases.
d) This Agreement is not intended to create any relationship other than
CLIENT as consignor and SOFTBANK as consignee of the product covered by this
Agreement and SOFTBANK as independent contractor performing Services covered by
this Agreement. Neither party is a partner or legal representative of the other
for any purpose whatsoever. It is understood between the parties that SOFTBANK
is not authorized to make any contract, agreement or warranty on behalf of the
CLIENT.
e) This Agreement contains the entire agreement between the parties with
the exception of the Attachments, Addendum or forms provided for in this
Agreement, which are incorporated herein. This Agreement shall supersede all
prior agreements and understandings between the parties with respect to the
subject matter hereof. To the extent that any provision contained in any other
document incorporated as part of this Agreement is inconsistent or conflicts
with this Agreement, the provisions of this Agreement shall control. This
Agreement may be amended only in writing signed by both parties or as otherwise
provided for in this Agreement.
f) CLIENT shall have the right, at its own expense, during normal business
hours and between the sixteenth day and the last day of the month and in a
reasonable manner, not to exceed twice in any twelve (12) month period and on
fifteen (15) days prior written notice, to audit SOFTBANK's billing records for
CLIENT to ascertain the accuracy of the fees charged hereunder to CLIENT by
SOFTBANK.
g) Both parties agree to comply with all federal, state, local laws and
regulations that are applicable to the Services to be provided herein.
h) In the event CLIENT initiates an action, this Agreement shall be
governed, interpreted and enforced in accordance with the laws of the State of
New York and the venue shall be Buffalo, New York. In the event SOFTBANK
initiates an action, this agreement shall be governed, interpreted and enforced
by the laws of the State of New York and the venue shall be New York, New York.
i) Failure of either party to exercise its rights under this Agreement
shall not be construed as a waiver thereof and shall not prevent said party from
thereafter enforcing strict compliance with any of the terms thereof
j) Any notice which may be or is required to be given under this Agreement
shall be written. Any written notices shall be sent by registered mail or
certified mail, postage prepaid, return receipt requested or by other prepaid
delivery method which is traceable. A fax notice does not constitute receipt of
written notice and must be followed by written notice. All such notices shall be
deemed to have been given when received and properly addressed as set forth
below. Either party may change its address by giving notice to the other party
pursuant to this Section.
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[****]Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
CONFIDENTIAL & PROPRIETARY
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All notices must be sent to:
SOFTBANK: CLIENT:
UPGRADE CORPORATION OF AMERICA JUNO ONLINE SERVICES, L.P.
D/B/A SOFTBANK SERVICES GROUP 120 WEST 45TH STREET
699 HERTEL AVENUE NEW YORK, NEW YORK 10036
BUFFALO, NEW YORK 14207 ATTENTION: ARLENE VILLAREAL
ATTENTION: PRESIDENT VICE-PRESIDENT MEMBER SERVICES
FAX NUMBER (716) 871-6668 FAX NUMBER (212)782-2650
CC: CONTRACT ADMINISTRATOR CC: LEGAL DEPARTMENT
k) SOFTBANK agrees that the obligations of CLIENT arising under (or
relating to) this Agreement shall be without recourse to any partner of CLIENT,
any controlling person thereof and any successor to any such partner or person,
and no such partner, controlling person or successor shall have any liability in
such capacity for the obligations of CLIENT. For the avoidance of doubt, each
such partner, controlling person and successor is a third party beneficiary of
this Agreement.
l) Except for the payment of money, neither party shall be liable to the
other for any failure to perform or a delay in the performance of its
obligations caused by circumstances beyond its reasonable control.
m) Neither party may assign this Agreement without prior written consent of
the other party. No Assignment of this Agreement shall release CLIENT or change
CLIENT's primary responsibility to make payments under this Agreement. Upon
occurrence of any default under this Agreement, SOFTBANK may proceed directly
against CLIENT without the necessity of exhausting any remedies against any
assignee.
n) Both parties agree that they will not, without prior written consent of
the other party in each instance (i) use in advertising, publicity or otherwise
the name of the other party, or any parent, subsidiary or affiliate of the other
party or any director, officer, employee or agent of the other party nor any
trade name, trademark, trade devise, service mark, symbol or any abbreviation,
contraction or simulation thereof owned by the other party or its parent,
subsidiaries or affiliates; (ii) represent directly or indirectly that any
product or service provided by the other party has been approved or endorsed by
the other party; or (iii) refer to the existence of this Agreement in press
releases, advertising or materials distributed to prospective customers or
clients.
o) The terms and conditions of Sections 6, 7, 8, 9, 11, 14 and
15(b)(d)(h)(j)(n) will survive any termination or expiration of this Agreement.
Acceptance:
JUNO ONLINE SERVICES, L.P.:
By: /S/ CHARLES ARDAI Date 8/4/98
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Name & Title: CHARLES ARDAI, PRESIDENT
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Acceptance:
UPGRADE CORPORATION OF AMERICA D/B/A SOFTBANK SERVICES GROUP:
By: /S/ GARY M. CROSBY Date 8/10/98
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Name & Title: Gary M. Crosby, Executive Vice President and CFO
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CONFIDENTIAL & PROPRIETARY
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SOFTBANK
MASTER SERVICE AGREEMENT
SERVICE FEE & RESPONSIBILITIES ATTACHMENT
JUNO ONLINE SERVICES, L.P.
FEES EFFECTIVE UPON THE FIRST DAY OF THE MONTH
FOLLOWING EXECUTION OF THIS AGREEMENT
All services performed by SOFTBANK shall be
rendered in accordance with the fees defined herein:
SERVICE/SOFTBANK RESPONSIBILITIES SOFTBANK FEE
A. SET-UP FEES PAYABLE UPON EXECUTION OF CONTRACT
SET-UP FEE Set-Up Fees for future campaigns
to be quoted based on specific needs
and set forth in the Set-Up Billing Form
(30000)DEPOSITS (REFUNDABLE UPON TERMINATION WAIVED
OF THE CONTRACT, PROVIDED OUTSTANDING INVOICES
HAVE BEEN PAID.)
B. CAMPAIGN/PROGRAM MANAGEMENT:
(20400) Monthly Campaign/Program Management fee $[****] per month Provide campaign or program specific information as
Includes: requested by the SOFTBANK Account Service Representative
Juno Billable Services and as requested in the Specifications Form
Juno Core Email Service
Participate in development of Telemarketing Call Guides,
providing information including but not limited to:
Product capabilities & technical requirements
Marketing research questions (if required)
Sales and technical objections
Help desk issues
"End of Call" coding
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[****] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
CONFIDENTIAL & PROPRIETARY
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<PAGE>
SOFTBANK
MASTER SERVICE AGREEMENT
SERVICE FEE & RESPONSIBILITIES ATTACHMENT
JUNO ONLINE SERVICES, L.P.
FEES EFFECTIVE UPON THE FIRST DAY OF THE MONTH
FOLLOWING EXECUTION OF THIS AGREEMENT
All services performed by SOFTBANK shall be
rendered in accordance with the fees defined herein:
SERVICE/SOFTBANK RESPONSIBILITIES SOFTBANK FEE
C. TECHNICAL SUPPORT SERVICES:
(3160,3170, Level I Technical Specialist ACROSS ALL CAMPAIGNS
3140, 3150) Includes information gathering, problem definition Billable
and resolution, call backs, add new records, database MINUTES PER MONTH PER MINUTE
edits, marketing/demographic surveys, e-mail technical [****]* -[****]* $[****]*
support, fraud investigation, and after call work (ACW), [****]* -[****]* $[****]*
if applicable [****]* -[****]* $[****]*
[****]* -[****]* $[****]*
HOURS OF OPERATION AND HOLIDAYS . [****]* -[****]* $[****]*
[****]* + $[****]*
Same as hours of operation for Billable Services Technical + phone charges, if applicable
Support
Hours of operation - Juno Billable Services: ACROSS ALL CAMPAIGNS
TECHNICAL SUPPORT Billable Hours
8:00 am - 2:00 am (EST) - Monday through Friday PER MONTH PER HOUR
10:00 am - 12:00 am (EST) - Saturday [****]*- [****]* $[****]*
10:00 am - 12:00 am (EST) - Sunday [****]*- [****]* $[****]*
[****]*- [****]* $[****]*
Hours of operation - Juno Billable Services: [****]*-[****]* $[****]*
CUSTOMER SERVICE [****]* [****]* $[****]*
8:00 am - 12:00 am (EST) - Monday through Friday [****]*+ $[****]*
10:00 am - 8:00 pm (EST) - Saturday + phone charges, if applicable
10:00 am - 8:00 pm (EST) - Sunday
HOLIDAYS NOTE: E-MAIL AND FRAUD INVESTIGATION ACTIVITY
New Years Day Labor Day TO BE BILLED PER AGENT HOUR. PER MINUTE
Memorial Day Thanksgiving PRICING ASSUMES NON-DEDICATED AGENTS. PER
4th of July Christmas HOUR PRICING INDICATES ONE HUNDRED PERCENT
(100%) DEDICATED AGENTS. HOURLY PRICING
BILLED IN FIFTEEN (15) MINUTE INCREMENTS.
SERVICE LEVEL - CUSTOMER SERVICE
SERVICE/SOFTBANK RESPONSIBILITIES CLIENT RESPONSIBILITIES
(3160,3170, Level I Technical Specialist Work with SOFTBANK to define and refine service levels
3140, 3150) Includes information gathering, problem definition throughout the term of the Agreement.
and resolution, call backs, add new records, database
edits, marketing/demographic surveys, e-mail technical Provide all CLIENT products, manuals, product information
support, fraud investigation, and after call work (ACW), and literature necessary to support the relationship.
if applicable
Provide a copy of all supported software for each Agent
HOURS OF OPERATION AND HOLIDAYS . supporting CLIENT's products.
Same as hours of operation for Billable Services Technical CLIENT to deploy call tracking and customer service
Support applications to agent desktops.
Hours of operation - Juno Billable Services:
TECHNICAL SUPPORT
8:00 am - 2:00 am (EST) - Monday through Friday
10:00 am - 12:00 am (EST) - Saturday
10:00 am - 12:00 am (EST) - Sunday
Hours of operation - Juno Billable Services:
CUSTOMER SERVICE
8:00 am - 12:00 am (EST) - Monday through Friday
10:00 am - 8:00 pm (EST) - Saturday
10:00 am - 8:00 pm (EST) - Sunday
HOLIDAYS
--------
New Years Day Labor Day
Memorial Day Thanksgiving
4th of July Christmas
SERVICE LEVEL - CUSTOMER SERVICE
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[****]Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
CONFIDENTIAL & PROPRIETARY
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SOFTBANK
MASTER SERVICE AGREEMENT
SERVICE FEE & RESPONSIBILITIES ATTACHMENT
JUNO ONLINE SERVICES, L.P.
FEES EFFECTIVE UPON THE FIRST DAY OF THE MONTH
FOLLOWING EXECUTION OF THIS AGREEMENT
All services performed by SOFTBANK shall be
rendered in accordance with the fees defined herein:
SERVICE/SOFTBANK RESPONSIBILITIES SOFTBANK FEE
If SOFTBANK fails to meet the Service Level for any
consecutive two (2) month period, in addition to
increasing the number of dedicated Specialists and
On a monthly basis, [****] percent ([****]%) of all incoming Technical Specialists assigned to handle CLIENT end-user
Customer service calls shall be answered by a SOFTBANK calls from the previous month, the fees associated with
Specialist within forty (40) seconds ("Service Level"). providing agent minutes and attributable
to the second month shall be reduced by
SERVICE LEVEL - BASIC [****] percent ([****]%) The service level penalties
On a monthly basis, [****] percent ([****]%)of all incoming stated above shall not apply if volume increases
calls shall be answered by a SOFTBANK by more than twenty-five percent (25%)
Technical Specialist prior to during any given month from the prior month.
it being Forced Disconnected ("Service Level").
"Forced Disconnected" shall mean the system
automatically Disconnecting the call after [****]Confidential treatment has
the end-user remains on hold twenty-five (25) been requested for this portion pursuant
seconds following the CLIENT preamble message and to Rule 406 promulgated under the
SOFTBANK's quality message. Securities Act of 1933, as amended.
SERVICE LEVEL - TECHNICAL SUPPORT WEB
On a monthly basis, [****] percent ([****]%) of all
incoming technical support calls shall be answered
by a SOFTBANK Technical Specialist within one hundred
twenty (120) seconds ("Service Level").
SERVICE LEVEL - GOLD TECHNICAL SUPPORT
On a monthly basis, [****] percent ([****]%) of all
incoming calls shall be answered by a SOFTBANK Technical
Specialist prior to it being Forced Disconnected
("Service Level"). "Forced Disconnected" shall mean the
system automatically disconnecting the call after the
end-user remains on hold twenty-give (25) seconds
following the CLIENT preamble message and SOFTBANK's
quality message.
CONFIDENTIAL & PROPRIETARY
Page 9
<PAGE>
SOFTBANK
MASTER SERVICE AGREEMENT
SERVICE FEE & RESPONSIBILITIES ATTACHMENT
JUNO ONLINE SERVICES, L.P.
FEES EFFECTIVE UPON THE FIRST DAY OF THE MONTH
FOLLOWING EXECUTION OF THIS AGREEMENT
All services performed by SOFTBANK shall be
rendered in accordance with the fees defined herein:
SERVICE/SOFTBANK RESPONSIBILITIES SOFTBANK FEE
Minimum Monthly Volume Commitment Forecasted billable units of measure per month
shall be billed at the appropriate volume tier
and CLIENT's payment of fees shall be equal to
[****] percent ([****]%) of the forecast.
For the months of August and September and
October of 1998, the forecasting criteria for
the CLIENT Billable Services campaign (Ember)
will be lowered from [****]% to [****]%, and
for this period, the service level penalty
shall not apply.
A "BILLABLE UNIT OF MEASURE" IS THE UNIT OF TIME
UPON WHICH FEES ARE LEVIED, E.G. MINUTES OR HOURS.
A SEPARATE FORECAST AND MINIMUM MONTHLY VOLUME
COMMITMENT WILL PREVAIL FOR EACH OF THE ABOVE
FEE SCALES.
(25920) KnowledgeCenter(TM)Remote Access to # OF WORKSTATIONS ACCESS FEE
SolutionBase LICENSE PER MONTH
With Direct Data Connect 1-5 licenses $[****]
(Builder Workstation Only) 6-10 licenses $[****]
Includes: 11+ licenses TBD
- Access to one SOFTBANK external
SolutionBase application server
and one user account.
- Available access to a domain where
data resides.
- Technical support assistance from
9:00am - 5:00pm (EST)
- Organization of SolutionBases are
at SOFTBANK's discretion
in regard to formatting standards.
- Provide training to all approved users.
Additional Builder Workstation Licenses $[****] one-time fee per license#
(beyond the initial license) $[****]annual maintenance version per license
SERVICE/SOFTBANK RESPONSIBILITIES CLIENT RESPONSIBILITIES
Minimum Monthly Volume Commitment In the event CLIENT's actual volume does not meet the minimum
forecasted volume commitments, CLIENT is responsible for
payment of fees as set forth under the "SOFTBANK Fee"
column. CLIENT shall make monthly payments based on the
foregoing commitments and said payments shall be reflected in
CLIENT's invoice. CLIENT must provide SOFTBANK with a ninety
(90) day rolling forecast to be submitted to SOFTBANK on the
CLIENT Forecast Form, attached hereto. In the event SOFTBANK
does not receive said forecast, it shall be entitled to rely
upon the previous forecast for minimum monthly volume
commitment purposes.
CLIENT agrees to sign an end-user license agreement to use
and install Primus' SolutionBase software.
Appoint one designated representative as a contact for all
SolutionBase technical support.
Attend all appropriate training at SOFTBANK site and attain
(25920) KnowledgeCenter(TM)Remote Access to certification for each authorized user.
SolutionBase
Maintain computer systems to support remote access to
With Direct Data Connect SolutionBase.
(Builder Workstation Only)
Includes:
- Access to one SOFTBANK external Install and maintain a reliable dedicated communication
SolutionBase application server data link between CLIENT and SOFTBANK facilities (with
and one user account. direct data connect only).
- Available access to a domain where
data resides.
- Technical support assistance from CLIENT agrees to assist with and share new and
9:00am - 5:00pm (EST) modified solutions as a part of the quality review
- Organization of SolutionBases are
at SOFTBANK's discretion
in regard to formatting standards.
- Provide training to all approved users.
Additional Builder Workstation Licenses
(beyond the initial license)
---------------------------
[****]Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
CONFIDENTIAL & PROPRIETARY
Page 10
<PAGE>
SOFTBANK
MASTER SERVICE AGREEMENT
SERVICE FEE & RESPONSIBILITIES ATTACHMENT
JUNO ONLINE SERVICES, L.P.
FEES EFFECTIVE UPON THE FIRST DAY OF THE MONTH
FOLLOWING EXECUTION OF THIS AGREEMENT
All services performed by SOFTBANK shall be
rendered in accordance with the fees defined herein:
SERVICE/SOFTBANK RESPONSIBILITIES SOFTBANK FEE
process.
D. TELECOMMUNICATIONS:
(9311) T-1 Voice Interface Set-Up $[****] one time fee per T-1
T-1 Maintenance Fee $[****] per month per T-1
Telecom Maintenance Fee $[****] per hour
(9311) T-1 Data Interface Set-Up $[****] one time fee per T-1
T-1 Data Maintenance Fee $[****] per month per T-1
Real-time CMS Access of VDN Data $[****] per month per login
(?) Network Charges Pass-through if applicable
E. ADMINISTRATIVE:
(19500) Custom reporting/additional data imports/specialized data $[****]/hour
(19550) transfers billed in fifteen (15) minute increments,
(19560) (beyond initial set up and/or standard activity reporting [****] hour minimum
options) + fee per transfer (CLIENT to be notified of
(19570) fee in advance), if applicable
(19510) Campaign/program modifications beyond initial set-up $[****]/hour
(e.g. CLIENT requested changes or additions, call guide billed in fifteen (15) minute increments,
billed in fifteen (15) minute increments, updates, [****] hour minimum
telecommunications programming, prompt changes,
(CLIENT to supply artwork), additional fax documents, etc.)
(14510)Training (includes training provided by CLIENT or by
SOFTBANK and includes agent and/or trainer time)
(CLIENT WILL NOT BE CHARGED FOR AGENT TRAINING HOURS THAT
ARE RELATED TO SOFTBANK'S ATTRITION AND/OR AGENT QUALITY
ISSUES.) $[****] per agent/trainer hour
Training $[****] per agent/trainer hour
Overtime training (Prior written notice is required)
SERVICE/SOFTBANK RESPONSIBILITIES CLIENT RESPONSIBILITIES
D. TELECOMMUNICATIONS:
(9311) T-1 Voice Interface Set-Up
T-1 Maintenance Fee
Telecom Maintenance Fee
(9311) T-1 Data Interface Set-Up
T-1 Data Maintenance Fee
Real-time CMS Access of VDN Data
(?) Network Charges
E. ADMINISTRATIVE:
(19500) Custom reporting/additional data imports/specialized data
(19550) transfers billed in fifteen (15) minute increments,
(19560) (beyond initial set up and/or standard activity reporting
options)
(19570)
Provide training to SOFTBANK trainers or appropriate
training information or documentation covering specifics of the
product and details of the campaign/program for SOFTBANK to
provide training to its employees.
Provide additional training to SOFTBANK trainers as needed on
an ongoing basis to support any additions or modifications to
---------------
[****]Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
CONFIDENTIAL & PROPRIETARY
Page 11
<PAGE>
SOFTBANK
MASTER SERVICE AGREEMENT
SERVICE FEE & RESPONSIBILITIES ATTACHMENT
JUNO ONLINE SERVICES, L.P.
FEES EFFECTIVE UPON THE FIRST DAY OF THE MONTH
FOLLOWING EXECUTION OF THIS AGREEMENT
All services performed by SOFTBANK shall be
rendered in accordance with the fees defined herein:
SERVICE/SOFTBANK RESPONSIBILITIES SOFTBANK FEE
((20200) Photocopies $0.10 per page
(requested by CLIENT/Customer)
(10050) Envelopes, stationery, other out-of-pocket Cost
(8100- Postage Cost
8250)
F. END OF CAMPAIGN/PROGRAM:
(19495) Reporting/analysis (Quote based on specific needs)
(20230) Data transfer (Quote based on specific needs)
SERVICE/SOFTBANK RESPONSIBILITIES CLIENT RESPONSIBILITIES
All related training expenses for such
SOFTBANK trainers, such as travel, shall
be the responsibility of the CLIENT.
*ON A MONTHLY BASIS, THE PARTIES AGREE TO REASSESS THE PER MINUTE/PER HOUR
PRICING ("HYBRID PRICING") TO EVALUATE THE COSTS FOR BOTH PARTIES AND TO WORK
TOWARDS A MUTUALLY ACCEPTABLE SOLUTION BASED UPON A COST ANALYSIS.. # THE
INITIAL BUILDER WORKSTATION LICENSE SHALL BE INCLUDED AS A COURTESY LICENSE,
HOWEVER THE ACCESS FEE SHALL APPLY TO THE INITIAL LICENSE AND ANY ADDITIONAL
LICENSES REQUESTED BY THE CLIENT. ANY ADDITIONAL SOLUTIONBUILDER OR EXPLORER
LICENSES REQUESTED BY THE CLIENT, SHALL BE CHARGED TO THE CLIENT AS SET FORTH IN
THIS SECTION. SOFTBANK RESERVES THE TO MAKE THESE LICENSES AVAILABLE AND THE
RIGHT TO ADJUST PRICING, UNTIL SUCH TIME NEGOTIATIONS WITH ITS VENDOR ARE
COMPLETED AND SOFTBANK SHALL NOTIFY CLIENT UPON COMPLETION OF SAID NEGOTIATIONS
AND OF PRICE CHANGES, IF ANY.
CONFIDENTIAL & PROPRIETARY
Page 12
<PAGE>
CLIENT FORECAST FORM
*IMPORTANT INFORMATION: In the event the actual volume for a particular period
does not meet the forecasted volume commitments (as such may be modified or
updated by the most recent Client Forecast Form submitted to SOFTBANK 15 days
prior to the commencement of such period) you are providing below, you will be
responsible for payment of minimum monthly fees as set forth in the agreement
between you and SOFTBANK. You shall make payments based on the agreed upon
commitments and said charges for said commitments shall be reflected in your
monthly invoice. You must provide SOFTBANK with a ninety (90) day rolling
forecast to be submitted to SOFTBANK on this CLIENT Forecast Form. In the event
SOFTBANK does not receive an ongoing forecast, it shall be entitled to rely upon
the previous forecast for minimum monthly volume commitment purposes and
charges.
Client ID Number: Client Name:
------------ ----------------------------------
Campaign Number: Start Date:
------------ ----------------------------------
/ / Initial Forecast (Minimum ninety (90) days)
/ / Ongoing Forecast (thirty (30) day minimum forecasted time period, to be
provided at least thirty (30) days prior to the start of the billing
period covered by the forecast)
/ / Revised Forecast (thirty (30) day minimum forecasted time period, to be
provided at least fifteen (15) days prior to the start of the billing
period covered by the forecast)
90 DAY FORECAST
1st Period 2nd Period 3rd Period
(PERIOD MUST BE EQUIVALENT TO A BILLING/REPORTING
PERIOD.)
FORECAST PERIOD DATE
INBOUND Talk Minutes/Hours
ACW Minutes/Hours
OUTBOUND Agent Hours
MFRP Mail Orders
Fax Orders
ETS Cases
The foregoing is the undersigned's forecast of volume under the services
agreement between CLIENT and SOFTBANK Services Group.
UPGRADE CORPORATION OF AMERICA
D/B/A SOFTBANK SERVICES GROUP
----------------------------------
Client Name
---------------------------------------- ----------------------------------
SIGNATURE SIGNATURE
---------------------------------------- ----------------------------------
PRINT NAME PRINT NAME
---------------------------------------- ----------------------------------
TITLE TITLE
---------------------------------------- ----------------------------------
DATE DATE
<PAGE>
ADDENDUM NUMBER (1) ("ADDENDUM")
TO THE
MASTER SERVICE AGREEMENT
BETWEEN
UPGRADE CORPORATION OF AMERICA D/B/A SOFTBANK SERVICES GROUP ("SOFTBANK")
AND
JUNO ONLINE SERVICES, L.P. ("CLIENT")
WHEREAS, SOFTBANK and CLIENT have entered into a Master Service Agreement
("Agreement") dated August 1, 1998; and
WHEREAS, SOFTBANK and CLIENT desire to add new services and fees; and
WHEREAS, SOFTBANK and CLIENT desire to modify the Agreement by way of this
Addendum effective as set forth herein;
NOW, THEREFORE, SOFTBANK and CLIENT agree as follows:
1. MODIFY TO ADD THE FOLLOWING SERVICES AND FEES:
(See attached Service Fee & Responsibilities Attachment)
2. NO OTHER MODIFICATIONS: Except as provided above, the terms of the Agreement
are unmodified by this Addendum.
3. OTHER AGREEMENTS: The service fees set forth in the Agreement between the
parties constitute master pricing which shall apply to present and future
services provided to the CLIENT. The pricing included in this Addendum shall be
in addition to those fees set forth in the Agreement or any previous document
incorporated as a part of the Agreement. To the extent that any provision or
service fee contained in the Agreement or any previous document incorporated as
part of the Agreement conflicts with this Addendum, the provisions of this
Addendum shall control.
IN WITNESS WHEREOF, the parties have caused this Addendum to be duly
executed and effective as of the date and year indicated by the last signator,
unless otherwise indicated herein.
UPGRADE CORPORATION OF AMERICA JUNO ONLINE SERVICES, L.P.
D/B/A SOFTBANK SERVICES GROUP
BY: /S/ CHARLES ARDAI BY: /S/ GARY M. CROSBY
----------------------------- -----------------------------
NAME: Gary M. Crosby NAME: Charles Ardai
TITLE: Executive Vice President TITLE: President
and CFO
DATE: 9/1/98 DATE: 8/12/98
CONFIDENTIAL & PROPRIETARY
Page 1
<PAGE>
ADDENDUM NUMBER (1)
SERVICE FEE & RESPONSIBILITIES ATTACHMENT
JUNO ONLINE SERVICES, L.P.
FEES EFFECTIVE UPON COMMENCEMENT OF SERVICES
All services performed by SOFTBANK shall be
rendered in accordance with the fees defined
herein and shall be in addition to services
and fees set forth in the Master Service
Agreement or any previously incorporated
Addendum.
SERVICE/SOFTBANK RESPONSIBILITIES SOFTBANK FEE
IVR (INTERACTIVE VOICE RESPONSE) SERVICES:
Inbound call fee: PER CAMPAIGN
(3100) Call Routing
(3230) MINUTES PER MONTH FEE PER MINUTE
(3210) [****] - [****] $[****]
(3210) [****] - [****] $[****]
[****] - [****] $[****]
[****] - [****] $[****]
[****] + $[****]
+ phone charges (See TELECOMMUNICATIONS)
(20480)
See ORDER PROCESSING - INBOUND SERVICE
(Quote based on specific needs)
(?) Custom voice talent
TELECOMMUNICATIONS:
(18100) Additional Toll Free lines $35.00 per line per month
(BEYOND THREE (3) ON SALES PROGRAMS AND/OR ONE (1) ON
AUTOMATED TECHNOLOGY OR TECHNICAL SUPPORT PROGRAMS)
Phone charges: (applies to all services provided)
(9001) Toll Free inbound - SOFTBANK lines Carrier rates*
(includes line/access charges + taxes)
(n/a) Toll inbound CUSTOMER pays toll charges*
SERVICE/SOFTBANK RESPONSIBILITIES CLIENT RESPONSIBILITIES
IVR (INTERACTIVE VOICE RESPONSE) SERVICES:
Inbound call fee: Provide first draft of script.
(3100) Call Routing
(3230) Provide sign-off for script and call-flow in timely manner
(3210) before SOFTBANK begins to program.
(3210)
Provide Closed and Holiday Schedule.
(20480) Provide SOFTBANK with required edits and modifications in a
format acceptable to SOFTBANK.
(?) Custom voice talent
---------------------
[****] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
CONFIDENTIAL & PROPRIETARY
Page 2
<PAGE>
ADDENDUM NUMBER (1)
SERVICE FEE & RESPONSIBILITIES ATTACHMENT
JUNO ONLINE SERVICES, L.P.
FEES EFFECTIVE UPON COMMENCEMENT OF SERVICES
All services performed by SOFTBANK shall be
rendered in accordance with the fees defined
herein and shall be in addition to services
and fees set forth in the Master Service
Agreement or any previously incorporated
Addendum.
SERVICE/SOFTBANK RESPONSIBILITIES SOFTBANK FEE
Toll Free inband SOFTBANK Lines Carrier rates*
(includes line/access charges + taxes)
Toll inbound CUSTOMER pays toll charges*
(9210) Toll outbound calls and call backs Carrier rates*
(includes toll charges + taxes)
*charges incurred only if back-up
telecom lines are utilized.
-----------------
[****] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
CONFIDENTIAL & PROPRIETARY
Page 3
<PAGE>
ADDENDUM NUMBER (2) ("ADDENDUM")
TO THE
MASTER SERVICE AGREEMENT
BETWEEN
UPGRADE CORPORATION OF AMERICA D/B/A SOFTBANK SERVICES GROUP ("SOFTBANK")
AND
JUNO ONLINE SERVICES, L.P. ("CLIENT")
WHEREAS, SOFTBANK and CLIENT have entered into a Master Service Agreement
("Agreement") dated August 1, 1998; and
WHEREAS, SOFTBANK and CLIENT desire to add new services and fees; and
WHEREAS, SOFTBANK and CLIENT desire to modify the Agreement by way of this
Addendum effective as set forth herein;
NOW, THEREFORE, SOFTBANK and CLIENT agree as follows:
1. MODIFY SECTION 5, CLIENT PRODUCT/LITERATURE: change to read as follows;
"CLIENT, at its expense, will from time to time provide SOFTBANK on a
consignment basis such quantities of product inventory or literature as
CLIENT deems advisable in order that SOFTBANK can fulfill its obligations
under this Agreement. The title to all such consigned inventory shall at
all times remain with CLIENT until title passes to a purchaser, and
SOFTBANK shall have no right, title or interest in such inventory, the
accounts receivable from any sale of such inventory, or in any proceeds of
such inventory or accounts receivable. SOFTBANK shall have no right to
pledge, mortgage or otherwise encumber, and SOFTBANK shall keep free of any
pledge, mortgage or other encumbrance, all of the inventory received by
SOFTBANK, the accounts receivable from any sale of such inventory, and any
proceeds of such inventory or accounts receivable and any other property of
CLIENT that SOFTBANK may from time to time possess. Without the prior
written consent of CLIENT, SOFTBANK will not store or hold any of the
consigned inventory at any location other than the SOFTBANK facility to
which CLIENT ships such inventory and SOFTBANK will not locate its
executive offices outside the United States. SOFTBANK shall keep all
inventory segregated from all other goods and property held by SOFTBANK.
SOFTBANK shall be authorized to make deliveries of inventory only to
purchasers that have completed purchases from CLIENT pursuant to this
Agreement or otherwise in writing by the CLIENT Account Service
Representative. Upon receipt of written instructions from CLIENT, SOFTBANK
shall immediately return to CLIENT, at CLIENT's expense, such quantities of
product inventory as CLIENT may direct.
CLIENT will ship product inventory or literature, freight prepaid, to
SOFTBANK F.O.B. destination, at 3357H SouthPark Place, Grove City, Ohio
43123. CLIENT is responsible for all shipping costs and bears all risks of
loss to its product. CLIENT agrees to provide SOFTBANK with a packing slip
and consignment invoice for each shipment of product to SOFTBANK. A copy of
the packing slip must accompany each product delivery. CLIENT agrees to
include product description and unique SKU number for each product on each
packing slip to ensure accurate inventory receipt and reporting. SOFTBANK
cannot receive product which arrives at SOFTBANK Distribution Center
without a packing slip.
CLIENT further agrees to provide product with a unique SKU number
affixed to each unit. In instances where no SKU number is affixed to each
unit, SOFTBANK will advise CLIENT, providing a quote to prepare and affix
such labels. In instances where CLIENT does not use unique SKU numbers,
SOFTBANK will work with CLIENT to create such numbers, providing a quote to
prepare and affix required labels. In all instances labels will be prepared
and affixed only after CLIENT has approved quoted costs.
CLIENT shall maintain personal property insurance to cover "all risks"
to CLIENT's inventory and shall be responsible for all risks of loss to
product while such inventory is on consignment with SOFTBANK. SOFTBANK will
use all reasonable precautions with its staff and facilities to prevent
unauthorized access to and removal of CLIENT's product. On a monthly basis,
SOFTBANK will provide a reconciliation of product inventory received,
shipped and current balances.
All product returned to SOFTBANK by customers that is deemed damaged
based on CLIENT provided guidelines and cannot be returned to stock, will
be accounted for and destroyed or returned to CLIENT at its direction and
expense, at least every ninety (90) days. SOFTBANK will invoice CLIENT the
cost of such disposal in the
CONFIDENTIAL & PROPRIETARY
Page 1
<PAGE>
month following disposal (billable as special warehouse work), providing a
certificate of destruction which includes product description, SKU number
and unit counts.
When product inventory is to be returned to CLIENT or transferred to
another location at the request of CLIENT, CLIENT is responsible for making
arrangements with shipper of their choice on a "freight-prepaid" basis only
and bears all risks. SOFTBANK cannot ship "freight collect". Upon request
of product return or transfer by CLIENT, SOFTBANK will prepare product for
shipping (billable as special warehouse work) in a timely manner, including
a packing slip which notes product description, SKU number and unit counts.
CLIENT's shipper will coordinate product pick up with SOFTBANK Distribution
contact."
2. MODIFY SECTION 15(O), GENERAL PROVISIONS: add Section 5 as a section that
will survive any termination or expiration of the Agreement.
3. MODIFY SECTION C. OF THE SERVICE FEE AND RESPONSIBILITIES ATTACHMENT,
"TECHNICAL SUPPORT SERVICES", SERVICES/SOFTBANK RESPONSIBILITIES COLUMN,
EFFECTIVE AUGUST 10, 1998, TO READ AS FOLLOWS:
Hours of operation - Juno Billable Services:
TECHNICAL SUPPORT
8:00 am - 2:00 am (ET) - Monday through Friday
10:00 am - 12:00 am (ET) - Saturday
10:00 am - 12:00 am (ET) - Sunday
CUSTOMER SERVICE
8:00 am - 12:00 am (ET) - Monday through Friday
10:00 am - 8:00 pm (ET) - Saturday
10:00 am - 8:00 pm (ET) - Sunday
4. MODIFY TO ADD THE FOLLOWING SERVICES AND FEES:
(See attached Service Fee & Responsibilities Attachment)
5. NO OTHER MODIFICATIONS: Except as provided above, the terms of the
Agreement are unmodified by this Addendum.
6. OTHER AGREEMENTS: The service fees set forth in the Agreement between the
parties constitute master pricing which shall apply to present and future
services provided to the CLIENT. The pricing included in this Addendum
shall be in addition to those fees set forth in the Agreement or any
previous document incorporated as a part of the Agreement. To the extent
that any provision or service fee contained in the Agreement or any
previous document incorporated as part of the Agreement conflicts with this
Addendum, the provisions of this Addendum shall control.
IN WITNESS WHEREOF, the parties have caused this Addendum to be duly
executed and effective as of the date and year indicated by the last signator,
unless otherwise indicated herein.
UPGRADE CORPORATION OF AMERICA JUNO ONLINE SERVICES, L.P.
D/B/A SOFTBANK SERVICES GROUP
BY: /S/ GARY M. CROSBY BY: /S/ CHARLES ARDAI
------------------------------------ -----------------------------
NAME: Gary M. Crosby NAME: Charles Ardai
TITLE: Executive Vice President and CFO TITLE: President
DATE: 1/5/99 DATE: 1/5/99
CONFIDENTIAL & PROPRIETARY
Page 2
<PAGE>
ADDENDUM NUMBER (2)
SERVICE FEE & RESPONSIBILITIES ATTACHMENT
JUNO ONLINE SERVICES, L.P.
FEES EFFECTIVE UPON COMMENCEMENT OF SERVICES
All services performed by SOFTBANK shall be
rendered in accordance with the fees defined
herein and shall be in addition to services
and fees set forth in the Master Service
Agreement or any previously incorporated
Addendum.
SERVICE/SOFTBANK RESPONSIBILITIES SOFTBANK FEE
ORDER PROCESSING:
TELEMARKETING (NOTE: SOFTBANK DOES NOT ACCEPT PURCHASE
ORDERS, CHECK ORDERS OR TAX EXEMPT ORDERS
VIA TELEPHONE.)
(1)(10) Inbound service - (24 hours a day, 7 days a week, 365 days a ACROSS ALL CAMPAIGNS
year) Includes order entry, customer inquiries and call Billable Talk
back, add new records, database edits, marketing/demographic MINUTES PER MONTH FEE PER MINUTE
surveys, if applicable [****] - [****] $[****]
[****] - [****] $[****]
[****] - [****] $[****]
[****] - [****] $[****]
[****] - [****] $[****]
[****]+ $[****]
+ phone charges (See TELECOMMUNICATIONS)
(50,60,70) Outbound service - 8:30 am - 8:00 pm (ET), $[****] per agent hour
Monday through Friday except for these holidays: + phone charges (See TELECOMMUNICATIONS)
New Years Day Labor Day
Memorial Day Thanksgiving
4th of July Christmas
Includes order entry, customer inquiries and call backs,
add new records, database edits, marketing/demographic
surveys, if applicable
(25950) Minimum Monthly Volume Commitment Forecasted billable unit of measure per month
shall be billed at the corresponding fee set
forth in this Agreement and CLIENT's payment of
fees shall be equal to eighty percent (80%) of
the forecast.
SERVICE/SOFTBANK RESPONSIBILITIES CLIENT RESPONSIBILITIES
ORDER PROCESSING:
TELEMARKETING
(1)(10) Inbound service - (24 hours a day, 7 days a week, 365 days a Produce, mail and/or insert direct marketing promotions
year) Includes order entry, customer inquiries and call (mails pieces or ads) for product(s) or service(s) to its
back, add new records, database edits, marketing/demographic registered or prospective user base. Such promotions should
surveys, if applicable include: Assigned toll free number(s), fax number(s),
mailing address, previously defined product
or service pricing, customer shipping &
handling charges and sales tax instructions.
CLIENT will submit promotions to
SOFTBANK for review before final
printing or publication. CLIENT
will also provide samples of final
pieces for reference by SOFTBANK Associates
(50,60,70) Outbound service - 8:30 am - 8:00 pm (ET), working on CLIENT's behalf.
Monday through Friday except for these holidays:
New Years Day Labor Day
Memorial Day Thanksgiving
4th of July Christmas
Includes order entry, customer inquiries and call backs,
add new records, database edits, marketing/demographic
surveys, if applicable
(25950) Minimum Monthly Volume Commitment In the event CLIENT's actual volume does not meet the minimum
forecasted volume commitments, CLIENT is responsible for
payment of fees as set forth under the "SOFTBANK Fee"
column. CLIENT shall make monthly payments based on the
foregoing commitments and said payments shall be reflected in
CLIENT's invoice. CLIENT must provide SOFTBANK with a ninety
(90) day rolling forecast to be submitted to SOFTBANK on the
CLIENT
[****] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
CONFIDENTIAL & PROPRIETARY
Page 3
<PAGE>
ADDENDUM NUMBER (2)
SERVICE FEE & RESPONSIBILITIES ATTACHMENT
JUNO ONLINE SERVICES, L.P.
FEES EFFECTIVE UPON COMMENCEMENT OF SERVICES
All services performed by SOFTBANK shall be
rendered in accordance with the fees defined
herein and shall be in addition to services
and fees set forth in the Master Service
Agreement or any previously incorporated
Addendum.
SERVICE/SOFTBANK RESPONSIBILITIES SOFTBANK FEE
(20220) Tracers $[****] per tracer
MAIL/FAX/INTERNET/EMAIL RESPONSE PROCESSING
(20100) Exception processing mail/fax responses $[****] per mail/fax/manual response - one letter
(NO DISK SIZE, NO PAYMENT TYPE, MISSING
PROOF OF PURCHASE, CREDIT CARD REJECTS, ETC.)
FULFILLMENT:
(2700) All shipped product $[****] per shipment (first unit only)
$[****] per additional unit on a shipment
Fulfillment Surcharges:
(19350) International shipments (INCLUDES CANADA) $[****] per shipment
(11000- Packaging fee
11022) Shippable $[****] per shipment
Packable $[****] per shipment
(8000) Freight/Postage:
Airborne program $[****] up to 4 lbs., $[****] for 5 lbs.++
Airborne over five pounds (5 lbs.) Carrier rates
+ all other carriers Cost
Postage
(19371= Back order notification and management $[****] per notice + postage
card)
(19380) Special warehouse work at CLIENT's request $[****] per hour per person
(19412, Receiving/Storage:
19410) Receiving charge $[****] per pallet
Monthly storage - pallet location $[****] per pallet
(20075) Product Return Handling $[****] per unit
SERVICE/SOFTBANK RESPONSIBILITIES CLIENT RESPONSIBILITIES
FORECAST FORM, attached hereto. In the event
SOFTBANK does not receive said forecast,
it shall be entitled to rely upon the
previous forecast for minimum monthly
volume commitment purposes.
(20220) Tracers
MAIL/FAX/INTERNET/EMAIL RESPONSE PROCESSING
(20100) Exception processing mail/fax responses
(NO DISK SIZE, NO PAYMENT TYPE, MISSING
PROOF OF PURCHASE, CREDIT CARD REJECTS, ETC.)
FULFILLMENT:
(2700) All shipped product Provide sufficient product and/or literature to meet customer
demand. Provide a consignment invoice for each shipment of
product to SOFTBANK.
Fulfillment Surcharges:
(19350) International shipments (INCLUDES CANADA)
(11000- Packaging fee Provide shipping or mailing container (unless CLIENT requests
11022) Shippable SOFTBANK to order on CLIENT's behalf).
Packable
[****] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
CONFIDENTIAL & PROPRIETARY
Page 4
<PAGE>
ADDENDUM NUMBER (2)
SERVICE FEE & RESPONSIBILITIES ATTACHMENT
JUNO ONLINE SERVICES, L.P.
FEES EFFECTIVE UPON COMMENCEMENT OF SERVICES
All services performed by SOFTBANK shall be
rendered in accordance with the fees defined
herein and shall be in addition to services
and fees set forth in the Master Service
Agreement or any previously incorporated
Addendum.
SERVICE/SOFTBANK RESPONSIBILITIES SOFTBANK FEE
TELECOMMUNICATIONS:
Phone charges: (applies to all services provided)
(9001) Toll Free inbound - SOFTBANK lines
U.S. calls $[****] per minute (includes line/access fees &
taxes)
Canadian calls $[****] per minute (includes line/access fees
& taxes)
(9311) Telecom Access Charges
For cross corporation routing enabling traffic $[****] per minute (includes access fees & taxes)
from Worldcom to be routed to CustomerONE MCI T-1s.
(n/a) Toll inbound CUSTOMER pays toll charges
(9210) Toll outbound calls and call backs Carrier rates (includes toll charges & taxes)
[****] Confidential treatment has been requested for this portion pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
CONFIDENTIAL & PROPRIETARY
Page 5
<PAGE>
CLIENT FORECAST FORM
*IMPORTANT INFORMATION: In the event the actual volume does not meet the
forecasted volume commitments you are providing below, you will be responsible
for payment of minimum monthly fees as set forth in the agreement between you
and SOFTBANK. You shall make payments based on the agreed upon commitments and
said charges for said commitments shall be reflected in your monthly invoice.
You must provide SOFTBANK with a ninety (90) day rolling forecast to be
submitted to SOFTBANK on this CLIENT Forecast Form. In the event SOFTBANK does
not receive an ongoing forecast, it shall be entitled to rely upon the previous
forecast for minimum monthly volume commitment purposes and charges.
Client ID Number: Client Name: Juno Online Services
------------ --------------------------------
Campaign Number: Start Date:
------------ --------------------------------
/ / Initial Forecast (Minimum ninety (90) days)
/ / Ongoing Forecast (thirty (30) day minimum forecasted time period, to be
provided at least thirty (30) days prior to the start of the billing
period covered by the forecast)
/ / Revised Forecast (thirty (30) day minimum forecasted time period, to be
provided at least fifteen (15) days prior to the start of the billing
period covered by the forecast)
90 DAY FORECAST
1st Period 2nd Period 3rd Period
(PERIOD MUST BE EQUIVALENT TO A BILLING/REPORTING
PERIOD.)
FORECAST PERIOD DATE
INBOUND Talk Minutes
ACW Minutes
OUTBOUND Agent Hours
MFRP Mail Orders
Fax Orders
ETS Cases
The foregoing is the undersigned's forecast of volume under the services
agreement between CLIENT and SOFTBANK Services Group.
UPGRADE CORPORATION OF AMERICA
D/B/A SOFTBANK SERVICES GROUP Juno Online Services, L.P.
---------------------------------
CLIENT NAME
----------------------------------- ---------------------------------
SIGNATURE SIGNATURE
----------------------------------- ---------------------------------
SIGNATOR'S PRINTED NAME SIGNATOR'S PRINTED NAME
----------------------------------- ---------------------------------
SIGNATOR'S TITLE SIGNATOR'S TITLE
----------------------------------- ---------------------------------
DATE DATE