Attached files
| file | filename |
|---|---|
| S-1/A - ITRACKR SYSTEMS INC | v206128_s1a.htm |
| EX-21 - ITRACKR SYSTEMS INC | v206128_ex21.htm |
| EX-23 - ITRACKR SYSTEMS INC | v206128_ex23.htm |
| EX-23.2 - ITRACKR SYSTEMS INC | v206128_ex23-2.htm |
MASTER
“CLICK2CHAT SOFTWARE AS A SERVICE” MANAGED SERVICES AGREEMENT
This
agreement ("Agreement") is entered into, to be effective as of November 1, 2010
(“Effective Date”), by and between RespondQ , LLC (“RespondQ”),
with its principal place of business located at 751 Park of Commerce Dr., Suite
112, Boca Raton, FL 33487 and iTrackr Inc., (“ITrackr”), with its
principal place of business located at 20423 State Road 7 Suite
F6490, Boca Raton, FL 33498.
RECITALS
WHEREAS,
RespondQ requires hosted third-party “Click2Chat software as a service” (the
“Services,” as further described herein) with respect to certain of its
information technology needs;
WHEREAS,
RespondQ requested a proposal from ITrackr for such Services;
WHEREAS,
ITrackr has experience and expertise in the business of providing the
Services;
WHEREAS,
ITrackr submitted a proposal to RespondQ to perform such Services on behalf of
RespondQ;
WHEREAS,
based on ITrackr’s superior knowledge and experience relating to such Services,
RespondQ has selected ITrackr to manage and provide the Services;
WHEREAS,
ITrackr wishes to perform the Services and acknowledges that the successful
performance of the Services and that the security and availability of RespondQ’s
data (“RespondQ Data,” as further described herein) are critical to
the operation of RespondQ’s business; and,
WHEREAS,
ITrackr has agreed to provide the Services to RespondQ, all on the terms and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants and representations set
forth in this Agreement, the parties hereby agree as follows:
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1.
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The
Services.
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1.1
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Purpose;
Term. This Agreement sets forth the terms and conditions
under which ITrackr agrees to license certain hosted “Click2Chat software
as a service” and provide all other services, data import / export,
monitoring, support, backup and recovery, change management, technology
upgrades, and training necessary for RespondQ’s productive use of such
software (the “Services”), as further set forth on an Exhibit A
(sequentially numbered) in the form of the Exhibit A
attached hereto or in other statements of “Click2Chat software as a
service” work containing substantially similar information and identified
as an Exhibit
A. The Agreement and each Exhibit A shall
remain in effect unless terminated as provided
herein.
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1.1.1
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Authorized
Users. Unless otherwise limited on an Exhibit A,
RespondQ and any of its employees, agents, contractors, or suppliers of
services that have a need to use the Services for the benefit of RespondQ
shall have the right to operate and use the same. As a part of
the Service, ITrackr shall be responsible for all user identification and
password change management.
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1.2
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Control of
Services. The method and means of providing the Services
shall be under the exclusive control, management, and supervision of
ITrackr, giving due consideration to the requests of
RespondQ.
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1.3
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Time of ITrackr Performance of
Services. For the term of the applicable Exhibit A, as
the same may be amended, ITrackr shall provide the Services during the
applicable Service Windows and in accordance with the applicable Service
Levels, each as described in an Exhibit A, time
being of the essence.
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1.4
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Non-exclusivity. Nothing
herein shall be deemed to preclude RespondQ from retaining the services of
other persons or entities undertaking the same or similar functions as
those undertaken by ITrackr
hereunder.
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1.5
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Subcontractors. ITrackr
shall not enter into any subcontracts for the performance of the Services,
or assign or transfer any of its rights or obligations under this
Agreement, without RespondQ’s prior written consent and any attempt to do
so shall be void and without further effect. RespondQ’s consent
to ITrackr’s right to subcontract any of the Services shall not relieve
ITrackr of any of its duties or obligations under this Agreement, and
ITrackr shall indemnify and hold RespondQ harmless from any payment
required to be paid to any such
subcontractors.
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1.6
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Change Control
Procedure. RespondQ may, upon written notice, request
increases or decreases to the scope of the Services under an Exhibit
A. If RespondQ requests an increase in the scope,
RespondQ shall notify ITrackr, and, not more than five (5) business days
(or other mutually agreed upon period) after receiving the request,
ITrackr shall notify RespondQ whether or not the change has an associated
cost impact. If RespondQ approves, RespondQ shall issue a
change control, which will be executed by the ITrackr. RespondQ
shall have the right to decrease the scope and the fee for an Exhibit A
will be reduced accordingly.
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2.
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Term and
Termination.
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2.1
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Term. Unless
this Agreement or an Exhibit A is
terminated earlier in accordance with the terms set forth in this Section,
the term of an Exhibit A (the
“Initial Term”) shall commence on the Effective Date and continue for
twelve (12) months thereafter. Following the Initial Term, an
Exhibit A
shall automatically renew for successive one-year terms (each, a “Renewal
Term”) until such time as RespondQ provides ITrackr with written notice of
termination; provided, however, that:
(a) such notice be given no fewer than thirty (30) calendar days prior to
the last day of the then-current term; and, (b) any such termination shall
be effective as of the date that would have been the first day of the next
Renewal Term. “Term” shall collectively mean and include the
Agreement terms represented by the Initial Term and the Renewal
Term.
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2.2
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Termination for
Cause. If either party materially breaches any of its
duties or obligations hereunder, including two periods of successive
failure of ITrackr to met a Service Level, and such breach is not cured,
or the breaching party is not diligently pursuing a cure to the
non-breaching party’s sole satisfaction, within thirty (30) calendar days
after written notice of the breach, then the non-breaching party may
terminate this Agreement or an Exhibit A for
cause as of a date specified in such
notice.
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2.3
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Payments Upon
Termination. Upon the expiration or termination of this
Agreement or an Exhibit A for
any reason, RespondQ shall pay to ITrackr all undisputed amounts due and
payable hereunder.
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2.4
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Return of
Materials. Upon expiration or earlier termination of
this Agreement or an Exhibit A, each
party shall: (a) promptly return to the other party, or certify the
destruction of any of the following of the other party held in connection
with the performance of this Agreement or the Services: (i) all
Confidential Information; and, (ii) any other data, programs, and
materials; and, (b) return to the other party, or permit the other party
to remove, any properties of the other party then situated on such party’s
premises. In the case of RespondQ Data, ITrackr shall,
immediately upon termination of this Agreement or an Exhibit A,
shall provide RespondQ with a final export of the RespondQ Data and shall
certify the destruction of any RespondQ Data within the possession of
ITrackr. The parties agree to work in good faith to execute the
foregoing in a timely and efficient manner. This Section shall
survive the termination of this
Agreement.
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3.
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Termination Assistance
Services. Provided that this Agreement or an Exhibit A has
not been terminated by ITrackr due to RespondQ’s failure to pay any
undisputed amount due ITrackr, ITrackr will provide to RespondQ and / or
to the supplier selected by RespondQ (such supplier shall be known as the
“Successor ITrackr”), at RespondQ’s sole cost and expense, assistance
reasonably requested by RespondQ in order to effect the orderly transition
of the applicable Services, in whole or in part, to RespondQ or to
Successor ITrackr (such assistance shall be known as the “Termination
Assistance Services) during the ninety (90) calendar day period prior to,
and / or following, the expiration or termination of this Agreement or an
Exhibit
A, in whole or in part (such period shall be known as the
“Termination Assistance Period”). Provided that ITrackr and
RespondQ agree as to price and scope of ITrackr’s provisioning of
Termination Assistance Services, such Termination Assistance Services may
include:
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3.1
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developing
a plan for the orderly transition of the terminated or expired Services
from ITrackr to RespondQ or the Successor
ITrackr;
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3.2
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providing
reasonable training to RespondQ staff or the Successor ITrackr in the
performance of the Services then being performed by
ITrackr;
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3.3
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using
commercially reasonable efforts to assist RespondQ, at RespondQ’s sole
cost and expense, in acquiring any necessary rights to legally and
physically access and use any third-party technologies and documentation
then being used by ITrackr in connection with the
Services;
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3.4
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using
commercially reasonable efforts to make available to RespondQ, pursuant to
mutually agreeable terms and conditions, any third-party services then
being used by ITrackr in connection with the Services;
and,
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3.5
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such
other activities upon which the parties may
agree.
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3.6
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The
provisions of this Section shall survive the termination of this
Agreement.
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4.
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Services
Levels.
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4.1
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Service Levels
Reviews. ITrackr and RespondQ will meet as often as
shall be reasonably requested by RespondQ, but no more than monthly, to
review the performance of ITrackr as it relates to the Service Levels
further described in Exhibit
A.
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4.2
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Failure to Meet
Service Levels. As further described in Exhibit A, in
the event ITrackr does not meet any of the requisite Service Levels,
ITrackr shall: (a) reduce the applicable monthly invoice to RespondQ by
the amount of the applicable Performance Credits as a credit, and not as
liquidated damages; and, (b) use its best efforts to ensure that any unmet
Service Level is subsequently met. Notwithstanding the
foregoing, ITrackr will use commercially reasonable efforts to minimize
the impact or duration of any outage, interruption, or degradation of
Service.
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4.3
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Escrow
Agreement. ITrackr agrees to place in escrow with
an escrow agent copies of the most current version of the source code for
the applicable software that is included as a part of the Services,
including all updates, improvements, and enhancements thereof from time to
time developed by ITrackr (the “Software”) necessary to internally support
(i.e., maintain and / or repair) the Software for the benefit of
RespondQ. ITrackr agrees that upon the occurrence of any event
or circumstance which demonstrates with reasonable certainty the inability
or unwillingness of ITrackr to fulfill its obligations to RespondQ under
this Agreement or an Exhibit A,
RespondQ shall be able to obtain the source code of the then-current
Software from the escrow agent. The provisions of this Section
shall survive the termination of this
Agreement.
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5.
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Fees and
Expenses. RespondQ shall be
responsible for and shall pay to ITrackr the fees as further described in
Exhibit
A, subject to the terms and conditions contained
therein. Any sum due ITrackr for Services performed for which
payment is not otherwise specified shall be due and payable thirty (30)
days after receipt by RespondQ of an invoice from
ITrackr
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5.1
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Billing
Procedures. Unless otherwise provided for under an Exhibit A,
ITrackr shall bill to RespondQ the sums due pursuant to an Exhibit A by
ITrackr’s invoice.
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5.2
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Credits. Any
amounts due from ITrackr may be applied by RespondQ against any fees due
to ITrackr. Any such amounts that are not so applied shall be
paid to RespondQ by ITrackr within thirty (30) days following RespondQ's
request.
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5.3
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Non-binding
Terms. Any terms and conditions that are included in a
ITrackr invoice shall be deemed to be solely for the convenience of the
parties, and no such term or condition shall be binding upon
RespondQ.
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5.4
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Taxes. ITrackr
represents and warrants that it is an independent contractor for purposes
of federal, state, and local employment taxes. ITrackr agrees
that RespondQ is not responsible to collect or withhold any such taxes,
including income tax withholding and social security contributions, for
ITrackr. Any and all taxes, interest or penalties, including
any federal, state, or local withholding or employment taxes, imposed,
assessed, or levied as a result of this Agreement shall be paid or
withheld by ITrackr.
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6.
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RespondQ Resources and
ITrackr
Resources. In accordance with
the terms set forth in Exhibit A, each
party shall provide certain resources (RespondQ Resources and ITrackr
Resources, as the case may be) to the other party as RespondQ and ITrackr
may mutually deem necessary to perform the
Services.
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6.1
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RespondQ
Resources. If so described in an Exhibit A,
where RespondQ provides resources (e.g., technology equipment) to ITrackr
that are reasonably required for the exclusive purpose of providing the
Services, ITrackr agrees to keep such resources in good order and not
permit waste (ameliorative or otherwise) or damage to the
same. ITrackr shall return the resources to RespondQ in
substantially the same condition as when ITrackr began using the same,
ordinary wear and tear excepted. RespondQ shall provide the
RespondQ Resources, if any, described in an Exhibit
A.
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6.2
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ITrackr
Resources. In addition to any ITrackr Resources
described in an Exhibit A, the
ITrackr shall, at a minimum, provide all of the resources necessary to
ensure that the Services continue uninterrupted, considering the
applicable Service Windows and Service Levels, that RespondQ Data is
secure to the standards and satisfaction of RespondQ, and provide for an
optimal response time for RespondQ’s users of the
Services. Where ITrackr fails to provide such minimal ITrackr
Resources, RespondQ shall have the right to immediately terminate this
Agreement or the applicable Exhibit A, in
whole or in part, without
liability.
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7.
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Representations and
Warranties.
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7.1
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Mutual
Representations and Warranties. Each of RespondQ and ITrackr
represent and warrant that:
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7.1.1
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it
is a business duly incorporated, validly existing, and in good standing
under the laws of its state of
incorporation;
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7.1.2
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it
has all requisite corporate power, financial capacity, and authority to
execute, deliver, and perform its obligations under this
Agreement;
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7.1.3
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this
Agreement, when executed and delivered, shall be a valid and binding
obligation of it enforceable in accordance with its
terms;
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7.1.4
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the
execution, delivery, and performance of this Agreement has been duly
authorized by it and this Agreement constitutes the legal, valid, and
binding agreement of it and is enforceable against it in accordance with
its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganizations, moratoriums, and similar laws
affecting creditors' rights generally and by general equitable
principles;
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7.1.5
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it
shall comply with all applicable federal, state, local, international, or
other laws and regulations applicable to the performance by it of its
obligations under this Agreement and shall obtain all applicable permits
and licenses required of it in connection with its obligations under this
Agreement; and,
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7.1.6
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there
is no outstanding litigation, arbitrated matter or other dispute to which
it is a party which, if decided unfavorably to it, would reasonably be
expected to have a potential or actual material adverse effect on its
ability to fulfill its obligations under this
Agreement.
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7.2
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By ITrackr. ITrackr
represents and warrants that:
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7.2.1
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ITrackr
is possessed of superior knowledge with respect to the
Services;
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7.2.2
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ITrackr
knows the particular purpose for which the Services are
required;
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7.2.3
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the
Services to be performed under this Agreement shall be performed in a
competent and professional manner and in accordance with the highest
professional standards;
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7.2.4
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ITrackr
has the experience and are qualified to perform the tasks involved with
providing the Services in an efficient and timely manner. ITrackr
acknowledges that RespondQ is relying on ITrackr's representation of its
experience and expertise, and that any substantial misrepresentation may
result in damage to RespondQ;
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7.2.5
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the
Services will achieve in all material respects the functionality described
in an Exhibit
A and the documentation of ITrackr, and that such functionality
shall be maintained during the
Term;
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7.2.6
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ITrackr
will use its best efforts to ensure that no computer viruses, malware, or
similar items (collectively, the “Virus”) are introduced into RespondQ’s
computer and network environment while performing the Services, that
ITrackr will adhere to RespondQ’s then current procedures to protect
against the same, and that, where ITrackr transfers such Virus to RespondQ
through the Services, ITrackr shall reimburse RespondQ the actual cost
incurred by RespondQ to remove or recover from the Virus, including the
costs of persons employed by RespondQ;
and,
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7.2.7
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the
Services and any other work performed by ITrackr hereunder shall be its
own work, and shall not infringe upon any United States or foreign
copyright, patent, Trade Secret, or other proprietary right, or
misappropriate any Trade Secret, of any third party, and that it has
neither assigned nor otherwise entered into an agreement by which it
purports to assign or transfer any right, title, or interest to any
technology or intellectual property right that would conflict with its
obligations under this
Agreement.
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8.
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Non-Disclosure of
Confidential Information. The parties acknowledge that
each party may be exposed to or acquire communication or data of the other
party that is confidential, privileged communication not intended to be
disclosed to third parties.
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8.1
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Meaning of
Confidential Information. For the purposes of this
Agreement, the term “Confidential Information” shall mean all information
and documentation of a party that: (a) has been marked
"confidential" or with words of similar meaning, at the time of disclosure
by such entity; (b) if disclosed orally or not marked "confidential" or
with words of similar meaning, was subsequently summarized in writing by
the disclosing entity and marked “confidential” or with words of similar
meaning; (c) with respect to information and documentation of RespondQ,
whether marked “Confidential” or not, consists of RespondQ information and
documentation included within any of the following
categories: (i) policyholder, payroll account, agent, RespondQ,
supplier, or contractor lists; (ii) policyholder, payroll account, agent,
RespondQ, supplier, or contractor information; (iii) information regarding
business plans (strategic and tactical) and operations (including
performance); (iv) information regarding administrative, financial, or
marketing activities; (v) pricing information; (vi) personnel information;
(vii) products and/or and services offerings (including specifications and
designs); or, (viii) processes (e.g., technical, logistical, and
engineering); or, (d) any Confidential Information derived from
information of a party. The term "Confidential Information"
does not include any information or documentation that was: (a) already in
the possession of the receiving entity without an obligation of
confidentiality; (b) developed independently by the receiving entity, as
demonstrated by the receiving entity, without violating the disclosing
entity’s proprietary rights; (c) obtained from a source other than the
disclosing entity without an obligation of confidentiality; or, (d)
publicly available when received, or thereafter became publicly available
(other than through any unauthorized disclosure by, through or on behalf
of, the receiving entity).
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8.2
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Obligation of
Confidentiality. The parties agree to hold all
Confidential Information in strict confidence and not to copy, reproduce,
sell, transfer, or otherwise dispose of, give or disclose such
Confidential Information to third parties other than employees, agents, or
subcontractors of a party who have a need to know in connection with this
Agreement or to use such Confidential Information for any purposes
whatsoever other than the performance of this Agreement. The
parties agree to advise and require their respective employees, agents,
and subcontractors of their obligations to keep such information
confidential.
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8.3
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Cooperation to Prevent
Disclosure of Confidential Information. Each party shall use its
best efforts to assist the other party in identifying and preventing any
unauthorized use or disclosure of any Confidential Information. Without
limitation of the foregoing, each party shall advise the other party
immediately in the event either party learns or has reason to believe that
any person who has had access to Confidential Information has violated or
intends to violate the terms of this Agreement and each party will
cooperate with the other party in seeking injunctive or other equitable
relief against any such person.
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8.4
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Remedies for Breach of
Obligation of Confidentiality. ITrackr acknowledges that breach of
ITrackr’s obligation of confidentiality may give rise to irreparable
injury to RespondQ and the RespondQs of RespondQ, which damage may be
inadequately compensable in the form of monetary
damages. Accordingly, RespondQ or RespondQs of RespondQ may
seek and obtain injunctive relief against the breach or threatened breach
of the foregoing undertakings, in addition to any other legal remedies
which may be available, to include, at the sole election of RespondQ, the
immediate termination, without penalty to RespondQ, of this Agreement in
whole or in part.
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8.5
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The
provisions of this Section shall survive the termination of this
Agreement.
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9.
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Proprietary
Rights.
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9.1
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Pre-existing
Materials. RespondQ acknowledges that, in the course of
performing the Services, ITrackr may use software and related processes,
instructions, methods, and techniques that have been previously developed
by ITrackr (collectively, the “Pre-existing Materials”) and that same
shall remain the sole and exclusive property of
ITrackr.
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9.2
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Data of RespondQ. RespondQ’s
information, or any derivatives thereof, contained in any ITrackr
repository (the “RespondQ Data,” which shall also be known and treated by
ITrackr as Confidential Information) shall be and remain the sole and
exclusive property of RespondQ. RespondQ shall be entitled to
an export of RespondQ Data, without charge, upon the request of RespondQ
and upon termination of this Agreement or an Exhibit
A. ITrackr is provided a license to RespondQ Data
hereunder for the sole and exclusive purpose of providing the Services,
including a license to store, record, transmit, maintain, and display
RespondQ Data only to the extent necessary in the provisioning of the
Services.
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9.3
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No
License. Except as expressly set forth herein, no
license is granted by either party to the other with respect the
Confidential Information, Pre-existing Materials, or RespondQ
Data. Nothing in this Agreement shall be construed to grant to
either party any ownership or other interest, in the Confidential
Information, Pre-existing Materials, or RespondQ Data, except as may be
provided under a license specifically applicable to such Confidential
Information, Pre-existing Materials, or RespondQ
Data.
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9.4
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The
provisions of this Section shall survive the termination of this
Agreement.
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10.
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Information
Security. ITrackr acknowledges that RespondQ has
implemented an information security program (the RespondQ Information
Security Program, as the same may be amended) to protect RespondQ’s
information assets, such information assets as further defined and
classified in the RespondQ Information Security Program (collectively, the
“Protected Data”).Where ITrackr has access to the Protected Data, ITrackr
acknowledges and agrees to the
following.
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10.1
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Undertaking by
ITrackr. Without
limiting ITrackr’s obligation of confidentiality as further described
herein, ITrackr shall be responsible for establishing and maintaining an
information security program that is designed to: (i) ensure the security
and confidentiality of the Protected Data; (ii) protect against any
anticipated threats or hazards to the security or integrity of the
Protected Data; (iii) protect against unauthorized access to or use of the
Protected Data; (iv) ensure the proper disposal of Protected Data; and,
(v) ensure that all subcontractors of ITrackr, if any, comply with all of
the foregoing. In no case shall the safeguards of ITrackr’s
information security program be less stringent than the information
security safeguards used by the RespondQ Information Security Program as
provided by RespondQ to ITrackr for this purpose. The RespondQ
Information Security Program is Confidential Information of
RespondQ.
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10.2
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Indemnification by
ITrackr. Without
limiting ITrackr’s other obligations of indemnification herein, ITrackr
shall defend, indemnify, and hold RespondQ Indemnitees harmless from and
against any and all Claims, including reasonable expenses suffered by,
accrued against, or charged to or recoverable from any RespondQ
Indemnitee, on account of the failure of ITrackr to perform its
obligations imposed herein.
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11.
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General
Indemnity. ITrackr agrees to indemnify, defend, and hold
RespondQ, its officers, directors, agents, and employees (each, an
“Indemnitee” and collectively, the “Indemnitees”) harmless from and
against any and all liabilities, damages, losses, expenses, claims,
demands, suits, fines, or judgments (collectively “Claims”), including
reasonable attorneys' fees, costs, and expenses incidental thereto, which
may be suffered by, accrued against, charged to, or recoverable from any
RespondQ Indemnitee, by reason of any Claim arising out of or relating to
any act, error or omission, or misconduct of ITrackr, its officers,
directors, agents, employees, and subcontractors, during the performance
of this Agreement, including, without limitation, Claims arising out of or
relating to: (a) bodily injury (including death) or damage to tangible
personal or real property; (b) violation of any law or regulation; (c)
Viruses; or, (d) breaches of any representations made under this
Agreement; provided, however, that
the foregoing indemnity shall not apply to the extent that the applicable
Claim resulted from the acts or omissions of RespondQ, its officers,
directors, agents, or employees.
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12.
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Proprietary Rights
Indemnification. ITrackr agrees to indemnify, defend,
and hold RespondQ Indemnitees harmless from and against any and all
Claims, including reasonable attorneys' fees, costs, and expenses
incidental thereto, which may be suffered by, accrued against, charged to,
or recoverable from any RespondQ Indemnitee, arising out of a claim that
the Services infringes or misappropriates any United States or foreign
patent, copyright, trade secret, trademark, or other proprietary
right. In the event that ITrackr is enjoined from delivering
either preliminary or permanently, or continuing to license to RespondQ,
the Services and such injunction is not dissolved within thirty (30) days,
or in the event that RespondQ is adjudged, in any final order of a court
of competent jurisdiction from which no appeal is taken, to have infringed
upon or misappropriated any patent, copyright, trade secret, trademark, or
other proprietary right in the use of the Services, then ITrackr shall, at
its expense: (a) obtain for RespondQ the right to continue using such
Services; (b) replace or modify such Services so that it does not infringe
upon or misappropriate such proprietary right and is free to be delivered
to and used by RespondQ; or, (c) in the event that ITrackr is unable or
determines, in its reasonable judgment, that it is commercially
unreasonable to do either of the aforementioned, ITrackr shall reimburse
to RespondQ the full cost associated with Termination Assistance
Services.
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13.
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Indemnification
Procedures. Promptly after receipt by RespondQ of a
threat of any action, or a notice of the commencement, or filing of any
action against RespondQ or any RespondQ Indemnitee, RespondQ shall give
notice thereof to ITrackr, provided that failure to give or delay in
giving such notice to ITrackr shall not relieve ITrackr of any liability
it may have to RespondQ or any RespondQ Indemnitee except to the extent
that ITrackr demonstrates that the defense of such action is prejudiced
thereby. RespondQ shall not independently defend or respond to
any such claim; provided, however, that:
(a) RespondQ may defend or respond to any such claim, at ITrackr's
expense, if RespondQ’s counsel determines, in its sole discretion, that
such defense or response is necessary to preclude a default judgment from
being entered against RespondQ; and, (b) RespondQ shall have the right, at
its own expense, to monitor ITrackr's defense of any such
claim. ITrackr shall have sole control of the defense and of
all negotiations for settlement of such action. At ITrackr’s
request, RespondQ shall cooperate with ITrackr in defending or settling
any such action; provided, however, that
ITrackr shall reimburse RespondQ for all reasonable out-of-pocket costs
incurred by RespondQ (including, without limitation, reasonable attorneys’
fees and expenses) in providing such
cooperation.
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14.
|
Limitation of
Liability. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH
HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND/OR
CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT; PROVIDED, HOWEVER, THAT
THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO
DAMAGES INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILFULL MISCONDUCT
OF A PARTY. A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT
DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO
PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT
THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT,
EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS
UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS
AGREEMENT, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATION SHALL NOT
APPLY TO: (A) A PARTY’S OBLIGATIONS OF INDEMNIFICATION, AS FURTHER
DESCRIBED IN THIS AGREEMENT; (B) DAMAGES CAUSED BY A PARTY’S GROSS
NEGLIGENCE OR WILFULL MISCONDUCT; OR, (C) A PARTY’S BREACH OF ITS
OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN THIS
AGREEMENT. This Section shall survive the termination of this
Agreement.
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15.
|
General.
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|
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15.1
|
Relationship between
RespondQ and ITrackr. ITrackr
represents and warrants that it is an independent contractor with no
authority to contract for RespondQ or in any way to bind or to commit
RespondQ to any agreement of any kind or to assume any liabilities of any
nature in the name of or on behalf of RespondQ. Under no
circumstances shall ITrackr, or any of its staff, if any, hold itself out
as or be considered an agent employee, joint venture, or partner of
RespondQ. In recognition of ITrackr’s status as independent
contractor, RespondQ shall carry no Workers’ Compensation insurance or any
health or accident insurance to cover ITrackr or ITrackr’s agents or
staff, if any. RespondQ shall not pay any contributions to
Social Security, unemployment insurance, federal or state withholding
taxes, any other applicable taxes whether federal, state, or local, nor
provide any other contributions or benefits which might be expected in an
employer-employee relationship. Neither ITrackr nor its staff,
if any, shall be eligible for, participate in, or accrue any direct or
indirect benefit under any other compensation, benefit, or pension plan of
RespondQ.
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15.2
|
Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida. ITrackr hereby consents and
submits to the jurisdiction and forum of the state and federal courts in
the State of Florida in all questions and controversies arising out of
this Agreement.
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15.3
|
Dispute
Resolution. In the event of any dispute or disagreement
between the parties with respect to the interpretation of any provision of
this Agreement, or with respect to the performance of either party
hereunder, RespondQ and ITrackr Engagement Managers will meet for the
purpose of resolving the dispute. If the parties are unable to
resolve the dispute within five (5) working days, or as otherwise agreed,
either project manager will have the right to submit the dispute to
ITrackr’s vice president level and RespondQ’s second vice president level
(the “Representatives”) who will meet as often as the parties reasonably
deem necessary in order to gather and furnish to each other all essential,
non-privileged information that the parties believe germane to resolution
of the matter at issue. During the course of these non-judicial
dispute resolution procedures, documents used to resolve the dispute shall
be limited to essential, non-privileged information. All
requests shall be made in good faith and be reasonable in light of the
economics and time efficiencies intended by the dispute resolution
procedures. The Representatives may mutually agree to appoint a
neutral advisor to facilitate negotiations and, if requested by both
parties, to render non-binding opinions. No formal proceedings
for the judicial resolution of any dispute may be commenced until sixty
(60) calendar days following initiation of negotiations under this Section
or for such shorter period as the parties may mutually agree to in
writing. Either party may then seek whatever remedy is
available in law or in equity. The provisions of this Section
will not apply to any dispute relating to the parties’ obligations of
non-disclosure and confidentiality as further described
herein.
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15.4
|
Compliance With Laws;
RespondQ Policies and
Procedures. Both parties agree to comply with all
applicable federal, state, and local laws, executive orders and
regulations issued, where applicable. ITrackr shall comply with
RespondQ policies and procedures where the same are posted, conveyed, or
otherwise made available to ITrackr. Without limiting ITrackr’s
other obligations of indemnification herein, ITrackr shall defend,
indemnify, and hold RespondQ Indemnitees harmless from and against any and
all Claims, including reasonable expenses suffered by, accrued against, or
charged to or recoverable from any RespondQ Indemnitee, on account of the
failure of ITrackr to perform its obligations imposed
herein.
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15.5
|
Cooperation. Where
agreement, approval, acceptance, consent or similar action by either party
hereto is required by any provision of this Agreement, such action shall
not be unreasonably delayed or withheld. Each party will
cooperate with the other by, among other things, making available, as
reasonably requested by the other, management decisions, information,
approvals, and acceptances in order that each party may properly
accomplish its obligations and responsibilities
hereunder. ITrackr will cooperate with any RespondQ
supplier performing services, and all parties supplying hardware,
software, communication services, and other services and products to
RespondQ, including, without limitation, the Successor
ITrackr. ITrackr agrees to cooperate with such suppliers, and
shall not commit or permit any act which may interfere with the
performance of services by any such
supplier.
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|
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15.6
|
Force
Majeure. Neither party shall be liable for delays or any
failure to perform the Services or this Agreement due to causes beyond its
reasonable control. Such delays include, but are not limited
to, fire, explosion, flood or other natural catastrophe, governmental
legislation, acts, orders, or regulation, strikes or labor difficulties,
to the extent not occasioned by the fault or negligence of the delayed
party. Any such excuse for delay shall last only as long as the
event remains beyond the reasonable control of the delayed
party. However, the delayed party shall use its best efforts to
minimize the delays caused by any such event beyond its reasonable
control. Where ITrackr fails to use its best efforts to
minimize such delays, the delays shall be included in the determination of
Service Level achievement. The delayed party must notify the
other party promptly upon the occurrence of any such event, or performance
by the delayed party will not be considered excused pursuant to this
Section, and inform the other party of its plans to resume
performance. A force majeure event does not excuse ITrackr from
providing Services and fulfilling its responsibilities relating to the
requirements of backup and recovery of RespondQ
Data. Configuration changes, other changes, viruses / malware,
or other errors or omissions introduced, or permitted to be introduced, by
ITrackr that result in an outage or inability for RespondQ to use the
Services shall not constitute a force majeure
event.
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15.7
|
No
Waiver. The failure of either party at any time to
require performance by the other party of any provision of this Agreement
shall in no way affect that party's right to enforce such provisions, nor
shall the waiver by either party of any breach of any provision of this
Agreement be taken or held to be a waiver of any further breach of the
same provision.
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15.8
|
Notices. Any
notice given pursuant to this Agreement shall be in writing and shall be
given by personal service or by United States certified mail, return
receipt requested, postage prepaid to the addresses appearing at the end
of this Agreement, or as changed through written notice to the other
party. Notice given by personal service shall be deemed
effective on the date it is delivered to the addressee, and notice mailed
shall be deemed effective on the third day following its placement in the
mail addressed to the addressee.
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15.9
|
Assignment of
Agreement. This Agreement and the obligations of ITrackr
hereunder are personal to ITrackr and its staff. Neither
ITrackr nor any successor, receiver, or assignee of ITrackr shall directly
or indirectly assign this Agreement or the rights or duties created by
this Agreement, whether such assignment is effected in connection with a
sale of ITrackr's assets or stock or through merger, an insolvency
proceeding or otherwise, without the prior written consent of
RespondQ.
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|
|
15.10
|
Counterparts;
Facsimile. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement. The
parties agree that a facsimile signature may substitute for and have the
same legal effect as the original
signature.
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|
15.11
|
Entire
Agreement. This Agreement and its attached exhibits
constitute the entire agreement between the parties and supersede any and
all previous representations, understandings, or agreements between
RespondQ and ITrackr as to the subject matter hereof. This
Agreement may only be amended by an instrument in writing signed by the
parties.
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|
|
15.12
|
Cumulative
Remedies. All rights and remedies of RespondQ herein
shall be in addition to all other rights and remedies available at law or
in equity, including, without limitation, specific performance against
ITrackr for the enforcement of this Agreement, and temporary and permanent
injunctive relief.
|
Executed
on the dates set forth below by the undersigned authorized representatives of
the parties to be effective as of the Effective Date.
|
RESPONDQ,
LLC
|
iTrackr
Inc.
|
|||
|
(“RespondQ”)
|
(“ITrackr”)
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Benny
Aboud
|
Name:
|
John
Rizzo
|
|
|
Title:
|
Chairman
|
Title:
|
CEO
|
|
|
Date:
|
November
1, 2010
|
Date:
|
November
1, 2010
|
|
|
Address
for Notice:
|
Address
for Notice:
|
|||
|
RESPONDQ
|
|
iTrackr
Inc.
|
||
|
751
Park of Commerce Dr.
|
20423
State Road 7
|
|||
|
Suite
112
|
Suite
F6490
|
|||
|
Boca
Raton, FL 33487
|
Boca
Raton
|
|||
|
FL
33498
|
||||
EXHIBIT
A
ITrackr’s
Click2Chat Software as a Service Statement of Managed Services
This
Exhibit A - ITrackr’s Software as a Service Statement of Work shall be
incorporated in and governed by the terms of that certain Master “Click2Chat
Software as a Service” Managed Services Agreement by and between RESPONDQ, LLC (“RespondQ”) and
iTrackr Inc. (“ITrackr”)
dated November 1, 2010, as amended (the “Agreement”). Unless expressly provided
for in this Exhibit
A, in the event of a conflict between the provisions contained in the
Agreement and those contained in this Exhibit A, the
provisions contained in the Agreement shall prevail.
|
Services
Description:
|
Click
2 Chat Software(ChatTrackr) Hosted Services
|
|
|
Support
Description:
|
Software
Product Support and Maintenance per RespondQ’s
requirements
|
|
|
Training
Description:
|
Train
the Trainer material on Chat Software Platform
|
|
|
Backup
Requirements:
|
Remote
Back up of RespondQ Chat Data
|
|
|
Service
Windows:
|
24X7
|
|
|
Service
Levels:
|
Platform
up 24X7
|
|
|
RespondQ
Resources:
|
Administrative
Resource to interface with Developer and Service Providers, IT Resources
for integrating Chat Platform to RespondQ IT platforms
|
|
|
ITrackr
Resources:
|
Developer
for maintenance and support of ChatTrackr Platform
|
|
|
Initial
License Fee
|
$25,000
payable within 90 days of contract execution
|
|
|
Services
Fees or Rate:
|
$12,700
per month
|
|
|
Start
Date:
|
November
1, 2010
|
|
|
End
Date:
|
||
|
Additional
RespondQ Requirements:
|
|
Executed
on the dates set forth below by the undersigned authorized representatives of
the parties to be effective as of the Start Date.
|
RespondQ,
LLC
|
iTrackr
Inc.
|
|||
|
(“RespondQ”)
|
(“ITrackr”)
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Reid
Shapiro
|
Name:
|
John
Rizzo
|
|
|
Title:
|
Chairman
|
Title:
|
CEO
|
|
|
Date:
|
November
1, 2010
|
|
Date:
|
November
1, 2010
|