VONAGE HOLDINGS CORP
FORM S-1/A (Securities Registration Statement)
Filed 4/26/2006
Address
23 MAIN STREET HOLMDEL, New Jersey 07733
Telephone
732-528-2600
CIK
0001272830
Fiscal Year
12/31
QuickLinks -- Click here to rapidly navigate through this document As filed with the Securities and Exchange Commission on April 26, 2006 Registration No. 333-131659
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549
AMENDMENT NO. 3 TO
FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
VONAGE HOLDINGS CORP. (Exact name of registrant as specified in its charter) Delaware (State of Incorporation)
4813 (Primary Standard Industrial Classification Code Number)
11-3547680 (I.R.S. Employer Identification No.)
23 Main Street Holmdel, New Jersey 07733 (732) 528-2600 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) John S. Rego Executive Vice President and Chief Financial Officer Vonage Holdings Corp. 23 Main Street Holmdel, New Jersey 07733 (732) 528-2600 (Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to: James S. Scott, Sr., Esq. Stephen T. Giove, Esq. Ferdinand J. Erker, Esq. Shearman & Sterling LLP 599 Lexington Avenue New York, New York 10022-6069 (212) 848-4000
John T. Gaffney, Esq. Erik R. Tavzel, Esq. Cravath, Swaine & Moore LLP Worldwide Plaza 825 Eighth Avenue New York, New York 10019 (212) 474-1000
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement is declared effective.
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box. If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
Explanatory Note This Amendment No. 3 is being filed solely for the purpose of filing exhibits to the Registration Statement on Form S-1 (File No. 333131659) and no changes or additions are being made hereby to the preliminary prospectus which forms part of the Registration Statement or to Items 13, 14, 15, 16(b) or 17 of Part II of the Registration Statement. Accordingly, the preliminary prospectus and Items 13, 14, 15, 16(b) and 17 of Part II of the Registration Statement have been omitted from this filing.
PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 16. (a)
Exhibits and Financial Statement Schedules. Exhibits
EXHIBIT INDEX Exhibit No.
Description of Exhibit
1.1*
Form of Underwriting Agreement
3.1*
Restated Certificate of Incorporation of Vonage Holdings Corp.
3.2*
Amended and Restated By-Laws of Vonage Holdings Corp.
4.1*
Form of certificate of Vonage Holdings Corp. common stock
4.2** Form of Senior Unsecured Convertible Note 5.1*
Opinion of Shearman & Sterling LLP
10.1** 2001 Stock Incentive Plan of Vonage Holdings Corp. 10.2** Form of Incentive Stock Option Agreement under the 2001 Stock Incentive Plan 10.3** Form of Nonqualified Stock Option Agreement for Employees under the 2001 Stock Incentive Plan 10.4** Form of Nonqualified Stock Option Agreement for Outside Directors under the 2001 Stock Incentive Plan 10.5** Vonage Holdings Corp. 401(k) Retirement Plan 10.6** Lease Agreement, dated March 24, 2005, between 23 Main Street Holmdel Associates LLC and Vonage USA Inc. 10.7** Amended and Restated Employment Agreement, dated February 8, 2006, between Vonage Holdings Corp. and Jeffrey A. Citron 10.8** Employment Agreement, dated February 7, 2006, between Vonage Holdings Corp. and Michael Snyder 10.9** Employment Agreement, dated August 1, 2005, between Vonage Holdings Corp. and John S. Rego 10.10** Employment Agreement, dated August 1, 2005, between Vonage Holdings Corp. and Louis A. Mamakos 10.11** Employment Agreement, dated August 8, 2005, between Vonage Holdings Corp. and Sharon O'Leary 10.12*
Third Amended and Restated Investors' Rights Agreement, dated April 27, 2005, among Vonage Holdings Corp. and the signatories thereto
10.13†
Agreement for Services, dated February 9, 2005, between Vonage Holdings Corp. and Third Party Verification, Inc.
10.14** Registration Rights Agreement, dated December 16, 2005, among Vonage Holdings Corp. and the signatories thereto
II-1
10.15**† Agreement for Services, dated April 27, 2005, between Vonage Network Inc. and Intrado Inc. and Amendment No. 1 thereto 10.16**† Master Service Agreement, dated July 15, 2004, between Vonage Holdings Corp. and Level 3 Communications, LLC 10.17**† Master Sales Agreement, dated June 8, 2005, between Vonage Network Inc. and TeleCommunication Systems, Inc. 10.18†
Master Services Agreement, dated May 5, 2005, between Vonage Network Inc. and Synchronoss Technologies, Inc.
10.19†
OSS Master Services Agreement, dated December 27, 2004, between Vonage Holdings Corp. and Neustar, Inc.
16.1** Letter from Amper, Politziner & Mattia P.C. 21.1** List of Subsidiaries of Vonage Holdings Corp. 23.1*
Consent of Shearman & Sterling LLP (included in Exhibit 5.1)
23.2** Consent of BDO Seidman, LLP, independent registered public accounting firm 23.3** Consent of Amper, Politziner & Mattia P.C., independent registered public accounting firm 24.1** Powers of Attorney (included in signature page of the Registration Statement on Form S-1 (Registration No. 333-131659)) 24.2** Power of Attorney for Michael Snyder
*
To be filed by amendment.
**
Previously filed.
†
Portions of this Exhibit have been omitted and filed separately with the Securities and Exchange Commission as part of an application for confidential treatment pursuant to the Securities Act of 1933, as amended. II-2
SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Holmdel, State of New Jersey, on April 26, 2006. VONAGE HOLDINGS CORP. By:
/s/ JOHN S. REGO Name: Title:
John S. Rego Executive Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated on April 26, 2006. Signature
Title
*
Director and Chief Executive Officer (principal executive officer)
Michael Snyder /s/ JOHN S. REGO
Executive Vice President and Chief Financial Officer (principal financial officer and principal accounting officer)
John S. Rego *
Director, Chairman and Chief Strategist
Jeffrey A. Citron *
Director Betsy S. Atkins * Director Peter Barris * Director Morton David * Director Orit Gadiesh
II-3
* Director J. Sanford Miller * Director Hugh Panero * Director Governor Thomas J. Ridge * Director John J. Roberts * Director Harry Weller *By:
/s/ JOHN S. REGO John S. Rego Attorney-in-fact II-4
QuickLinks Explanatory Note PART II INFORMATION NOT REQUIRED IN PROSPECTUS EXHIBIT INDEX SIGNATURES
Exhibit 10.13 Contract # VHI20040126vR1 [LOGO] SERVICES AGREEMENT This Services Agreement,( the “ Agreement ”) dated as of this 9 th day of February, 2005 (“ Effective Date ”) is between Third Party Verification, Inc., a Florida corporation (“ 3PV ”) and Vonage Holdings Corporation, a Delaware corporation and its successors and assigns (collectively “ Customer ”). 1.0 SERVICES 3PV shall provide Customer with the following services (“ Services ”): A. ELOA: Third Party Verification, Inc. (3PV) shall provide electronic letter of authorization (“ ELOA ”)/Email confirmation services to Customer call centers for all orders of products and services requiring authorization of account change from the customer. This service complies with all relevant laws and regulations and meets all Federal Communications Commission (“ FCC ”) requirements and accommodates Internet sales. 3PV WILL NOT BE PERFORMING VERIFICATION SERVICES ON THE ELOA DATA RECEIVED 3PV shall provide Customer with the Internet ELOA form which includes all necessary data fields as well as the language for the legal acceptance of the ELOA by the consumer. Customer may modify this Internet ELOA FORM from time-to-time, and shall communicate any such modifications to 3PV’s account manager in writing. 3PV will diligently work to implement all such modifications in the ELOA processes within the time frame requested by Customer or within […***…] days of such notice. In the event 3PV is unable to meet above time frame due to technical complexity, 3PV will provide Customer with an explanation in writing why such schedule cannot be met and providing Customer with a new date. If Customer chooses to modify the Internet ELOA Form, Customer will indemnify and defend 3PV, the 3PV Affiliates, and their respective directors, officers, agents and employees (“ 3PV Indemnitees ”) from and against all claims, damages, losses, liabilities, costs, expenses and reasonable attorney’s fees arising out of a claim by a third party against a 3PV Indemnitee for injury to persons (including libel, slander or death) or loss of or damage to tangible or intangible property to the extent resulting from any modification of the Internet ELOA Form by Customer under this Agreement. B. MARTINA 3PV shall provide third party verification services to Customer for all orders requiring authorization of account change from the Customer’s client. These third party verification services shall include: ELOA, automated and live agent third party verification solutions. 3PV reserves the right, at its sole discretion, to refuse to implement, edit and/or eliminate any scripts, text, services, intangibles or other items provided by Customer, in the event these items are found to be in conflict with 3PVs moral, ethical and/or business policies, without penalty or liability to 3PV. 3PV shall provide Customer with timely, written notice articulating its basis for objection and shall provide Customer with a reasonable opportunity to cure or resolve the stated objections. If the parties are unable to resolve any dispute arising hereunder, after reasonable, good faith efforts, either party may terminate the Agreement with thirty (30) days written notice and without any further fees including any monthly minimums being due. Initials
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Confidential Treatment Requested
Pages where confidential treatment has been requested are stamped, "Confidential Treatment Requested" and the redacted material has been separately filed with the Commission. All redacted material has been marked by three asterisks (***).
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2.0 DELIVERABLES REQUIREMENTS 3PV shall provide the services in accordance with the following requirements:
•
The ELOA service will be available and fully operational 24 hours a day/ seven days a week with at least ninety-nine percent (99%) availability exclusive of scheduled maintenance downtime. Scheduled maintenance shall not be performed: i) without advance 48 hours written notice to Customer, ii) except between the hours of 12:00 am Sunday through 5:00 am Sunday east coast time; iii) during any marketing campaign conducted by Customer; and iv) more than a total of five (5) hours in any calendar month. ELOAs shall be similarly available 24 hours a day/seven days a week to Customer, its vendors and any others which Customer designates.
•
The number of interactive voice response (“ IVR ”) third party verifications unanswered shall not exceed […***…] of the total IVR third party verifications issued in a calendar month.
•
The average total amount of waiting time or hold time for a Customer’s client shall not exceed two (2) minutes as calculated on a calendar month basis.
•
In the event of the inability of 3PV to meet these service requirements or an event which would in Customer’s and 3PV’s estimation (after good faith discussions with 3PV) reasonably be likely to result in the inability of 3PV to meet these services requirements, Customer may solely at its option on written notice to 3PV: i) terminate the Agreement with ninety (90) days written notice; or ii) continue with the Agreement but under either circumstance is immediately no longer bound to pay the Early Termination Fee as defined below or use 3PVexclusively.
Administration
All records must be kept in digital format in 2 years (or longer if required by State law). Incomplete verification records will be transferred to customer after 48 hours. No later than thirty (30) days after payment of the first three invoices by Customer 3PV will provide dedicated hardware for Customers ELOA application.
Operations
Each call must digitally recorded and be available on demand based on Billing Telephone Number (BTN) or Working Telephone Number (WTN). Completed automated calls will be reviewed prior to sending Customer a confirmed/nonconfirmed call status. Live agent callbacks will be attempted for dropped automated verifications.
Script Reports
3PV may modify or enhance the script for compliance with FCC and/or State PUC/PSC rules or to increase efficiencies without prior customer approval General/Pending Reports: Web-based report which shows all verifications which have been completed or are still pending final verification Daily Report: Provided via electronic mail, daily good and bad sale report.
3.0 COMPENSATION AND INVOICING In consideration of 3PV’s provision of the Services, Customer shall pay 3PV the fees, and charges at the rates and terms set forth in this Agreement. Unless otherwise agreed in writing between the parties, all additional services not contemplated as part of the original Services shall be billed on a time and material basis, using 3PV’s then current rates. Customer must approve those additional services in advance in a writing signed by both parties which includes a good faith estimate of the total amount of hours to be spent and the total amount of fees. 3PV will make all of the Services listed under Services available to Customer within thirty (30) days of the Effective Date of this Agreement. Provided that set-up is complete and the Services are available to Customer to Customer’s reasonable satisfaction on or before April 1, 2005, 3PV will begin billing Customer, regardless of actual usage, any monthly recurring fees established in this Agreement on April 30, 2005. Customer may not unreasonably withhold its approval and must articulate a material failure of the Services or the set-up. Under such circumstances, the parties shall meet and mutually agree upon a written remediation plan. That remediation plan shall identify any additional services which 3PV shall provide and any fees associated with those services. Initials
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All prices for Services and all payments under this Agreement are in U.S. dollars unless otherwise specified. All invoices are payable upon receipt and all payments are nonrefundable. 3PV reserves the right to assess late payment interest at a rate of twelve percent (12%) per annum or the maximum amount permitted by law, whichever is less, for any undisputed invoiced amounts not paid within thirty (30) days of receipt. In addition, 3PV shall have the right to suspend performance and/or terminate this Agreement if failure to pay exceeds forty-five (45) days from receipt of an invoice. No setoffs or reductions of any kind may be applied to any invoice unless expressly agreed to in writing by 3PV. In the event live agent verifications exceed [...***...] in a given calendar month, 3PV reserves the right to reduce the amount of time allotted to pay that month’s invoice from thirty (30) days to fifteen (15) days and may also invoice Customer at mid-month if live agent verifications have exceeded [...***...] at that point. One Time Setup Fee: [...***...] Cost of Martina Services: Base 3PV verification record includes Completed Verification Record, Dual Channel Recording, live agent review, and verification storage record. Two and a half (2.5) minute average call lengths. Completed live agent callback or opt-out, two (2) minute average call length. In the event more than 10% of Customers live agent verifications exceed two (2) minutes in length, 3PV will notify Customer and work with Customer to reduce the time of Customers live agent verifications. Additional per minute billing for automated calls in excess of two minutes. Additional per minute billing for live agent calls in excess of two minutes. Real time web management reports & Hot Line Support 24 x 7 Extended Logic Programming 3PV Provided Long Distance
[...***...] For the first 2,500 verifications [...***...] Each additional verification [...***...] Each verification from 0 – 2,500 [...***...] Each verification from 2,501 – 5,000 [...***...] Each verification from 5,001 – 10,000 [...***...] Each verification from 10,001 – 15, 000 [...***...] Each verification from 15,001 – 25,000 [...***...] Each verification over 25,000 [...***...] [...***...] N/C [...***...] [...***...]
Cost of ELOA services: Base 3PV ELOA record includes the Completed Verification Record, and ELOA storage record. Real time web management reports Hot line support 7 X 24 Extended logic programming
[...***...] Each ELOA from 0 – 25,000 [...***...] Each ELOA from 25,001 – 50,000 [...***...] Each ELOA over 50,000 N/C N/C [...***...]
Script/ELOA/Reporting Changes Class A Changes
• Speech recognition unique grammar • Database change Per Case Basis
Class B Changes
• Validate New Product (Y/N format) • Additional non-product question • Report back customized data 1 st one free then [...***...]
Class C Changes
• Report changes • Additional prompt statements ( [...***...] per prompt, per language) [...***...]
Minimums: In return for the reduced pricing above, Customer agrees solely during the Initial Term to be billed and pay a minimum of [...***...], regardless of actual usage Exclusive Provider : In return to the reduced pricing and minimums above Customer agrees that 3PV shall be the exclusive provider for all of Customers third party verification Services [...***...]; including, but not limited to, live agent, automated and ELOA third party verifications. Initials
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4.0 TERM AND TERMINATION The initial term (“ Initial Term ”) of this Agreement begins on the Effective Date and expires after twenty-seven (27) months (since the monthly minimums will not apply until May 1, 2005.) The term of this Agreement shall be automatically renewed on an annual basis, unless either party gives notice of its intent not to renew at least sixty (60) days before the expiration of the Initial Term or the then current term. In the event Customer decides to no longer engage in any type of third party verification, this Agreement may be terminated in writing with six (6) months notice. All minimum payments, fees and other costs under this Agreement will need to be paid for the six (6) months notice period before this Agreement will be terminated. Customer will have full usage of all applications during the six (6) month cancellation period. If a party materially breaches this Agreement the other party may give the breaching party a material breach notice, identifying the action or inaction that is the basis of the breach. The party that gave the breach notice may terminate this Agreement if the breaching party has not cured the breach within thirty (30) days after the date of the material breach notice. Unless otherwise provided in the notice or unless the breach has been cured, the termination is effective thirty-one (31) days after the date of the notice. Where the termination is due to Customer’s material breach, Customer shall pay the Early Termination Fee, as defined below. Customer may terminate this Agreement solely for its convenience during the Initial Term provided it pays an early termination fee. The early termination fee shall be equal to [...***...] for each month remaining in the Initial Term (“ Early Termination Fee ”). Customer may terminate the Agreement during any subsequent term without an Early Termination Fee by providing two (2) months advance written notice. Upon termination or expiration of this Agreement, 3PV shall be entitled to payment of any and all fees for the Services actually rendered by 3PVand any and all minimum payments due under this Agreement up until the date of termination or expiration. Termination of this Agreement is without prejudice to any other right or remedy of the parties. Termination of this Agreement for any cause does not release either party from any liability which, at the time of termination, has already accrued to the other party, or which may accrue in respect of any act or omission prior to termination or from any obligation which is expressly stated to survive the termination. 5.0 SERVICE AND DELIVERABLE WARRANTIES 3PV warrants that the Services comply with all relevant laws and regulations and meets all Federal Communications Commission (“ FCC ”) requirements and accommodates Internet sales. 3PV warrants that the Services will be provided with reasonable skill and care and in a professional and workmanlike manner and that the Services do not infringe upon the rights of any third parties. 3PV MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING FROM A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE DELIVERABLES OR ANY OTHER MATTER CONTEMPLATED BY THIS AGREEMENT OR ANY CHANGE ORDER ENTERED INTO IN CONNECTION HEREWITH. 6.0 INDEMNITY and LIMITATION OF DAMAGES 3PV SHALL INDEMNIFY, DEFEND AND HOLD CUSTOMER HARMLESS FOR ALL CLAIMS AND EXPENSES INCLUDING REASONABLE ATTORNEYS FEES BROUGHT BY ANY THIRD PARTY AGAINST CUSTOMER ALLEGING THAT THE SERVICES INFRINGES UPON THEIR RIGHTS INCLUDING BUT NOT LIMITED TO INTELLECTUAL PROPERTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED AT LAW, 3PV’S AGGREGATE LIABILITY FOR DAMAGES TO THE CUSTOMER FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, NEGLIGENCE, PRODUCT S LIABILITY AND STRICT LIABILITY), SHALL BE LIMITED TO THE AMOUNT OF ALL Initials
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PAYMENTS ACTUALLY RECEIVED BY 3PV FROM THE CUSTOMER PURSUANT TO SECTION 3 OF THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE DATE OF THE CLAIM. WHERE THE AGREEMENT HAS NOT YET BEEN IN PLACE FOR SIX MONTHS, THIS AMOUNT SHALL BE EQUAL TO THE AMOUNTS PAID FOR THE NUMBER OF MONTHS THE AGREEMENT HAS BEEN IN PLACE PLUS THE MONTHLY MINIMUM TIMES THE REMAINING NUMBER OF MONTHS NEEDED TO EQUAL A FULL SIX (6) MONTHS. 7.0 DISPUTE RESOLUTION Any court proceeding brought by Customer must be brought, as appropriate, in Florida District Court located in Orange County, Florida, or in the United States District Court for the District of Florida in Orlando, Florida. Any court proceeding brought by 3PV must be brought, as appropriate, in New Jersey State Court located in Newark, New Jersey or in the United States District Court for the District of New Jersey. Each party agrees to personal jurisdiction in such courts 8.0 GENERAL Notices: Unless otherwise provided, notices provided under this Agreement must be in writing and delivered by (i) certified mail, return receipt requested, (ii) hand delivered, (iii) facsimile with receipt of a “Transmission OK” acknowledgment, (iv) email, or (v) delivery by a reputable overnight carrier service (in the case delivery by facsimile or e-mail the notice must be followed by a copy of the notice being delivered by a means provided in (i), (ii) or (v)). The notice will be deemed given on the day the notice is received. In the case of notice by facsimile or e-mail, the notice is deemed received at the local time of the receiving machine, and if not received, then the date the follow-up copy is received. Notices must be delivered to the following addresses or at such other addresses as may be later designated by notice: Customer : Martin Hakim Din , VP of Standards & Practices Vonage Holdings 2147 Rte. 27, 2nd Floor Edison, NJ 08817 Phone: 240.899.6711
3PV : David W. Brinkman, CEO Third Party Verification 220 E. Central Parkway Suite 3000 Altamonte Springs, FL 32701 Phone:407.865.9966 Fax:407.774.3388
Independent Contractor : 3PV and 3PV Personnel are independent contractors for all purposes and at all times. 3PV has the responsibility for, and control over, the methods and details of performing Services. 3PV will provide all tools, materials, training, hiring, supervision, work policies and procedures, and be responsible for the compensation, discipline and termination of 3PV Personnel. Governing Law: THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES ARE GOVERNED BY THE LAWS OF THE STATE IN WHICH THE ACTION IS COMMENCED UNDER SECTION 7 OF THIS AGREEMENT, WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES. Severability: If any provision of this Agreement is held to be unenforceable, the remaining provisions will remain in effect and the parties will negotiate in good faith a substantively comparable enforceable provision to replace the unenforceable provision. Assignment: Neither party may assign any of its rights or this Agreement or delegate any of its obligations without the prior written consent of the other party except that Customer may assign the Agreement as part of a corporate reorganization or restructuring. This Agreement is binding upon and enforceable by each party’s permitted successors and assignees. Any assignment in violation of this section is null and void. Entire Agreement; Modifications; Inconsistencies: This Agreement constitutes the entire agreement of the parties as to the Services contained in this Agreement and supersedes all prior or contemporaneous agreements, proposals, inquiries, commitments, discussions and correspondence, whether written or oral. This Agreement may not be amended or modified except in writing signed by a duly authorized representative of each party. Initials
/s/ 5
Vonage Holdings Corporation
THIRD PARTY VERIFICATION, INC.
(signature) (print name) (title) (date)
(signature) (print name) (title) (date)
Initials
/s/ Louis Mamakos CTO 2/9/2005
/s/ 6
/s/ David W. Brinkman Chief Executor Officer 2/9/05
Exhibit 10.18 MASTER SERVICES AGREEMENT This Master Services Agreement (the Agreement ), effective May 5, 2005 (the Effective Date ), is between VONAGE NETWORK INC. , a Delaware corporation with a place of business at 2147 Route 27, Edison, New Jersey 08817 ( Customer ), and SYNCHRONOSS TECHNOLOGIES, INC. , a Delaware corporation with a place of business at 1525 Valley Center Parkway, Bethlehem, PA 18017 ( Synchronoss ). The parties agree as follows: 1. DEFINITIONS . Deliverable means any work product resulting from the Services that is specifically identified in a Statement of Work and delivered to Customer by Synchronoss. Services means the services defined in the applicable Statement of Work. Statement of Work means any written work statement executed by the parties and containing such information as generally illustrated in Exhibit A attached hereto. 2. SERVICES . 2.1 Engagement . This Agreement will be implemented through one or more Statements of Work executed by the parties from time to time, and provides the terms and conditions applicable to all Statements of Work. Any modification of these terms and conditions within a Statement of Work will apply only to that Statement of Work in which the modification is set forth. Synchronoss will report to the Customer contact so designated in the applicable Statement of Work. 2.2 Services . Synchronoss agrees to undertake the Services and to use commercially reasonable efforts to complete the Services in accordance with the descriptions and schedules specified therein. 2.3 Cooperation . Customer acknowledges that the Services may be performed in cooperation with Customer personnel. Customer will furnish to Synchronoss such (a) descriptions, specifications, materials, data and other information ( Customer Information ), (b) cooperation, technical assistance, resources and support, and (c) access to Customer’s equipment, systems and networks, as reasonably necessary or appropriate to perform the Services. Customer hereby grants Synchronoss a nonexclusive and royalty-free right and license to use the Customer Information solely for the purpose of performing the Services. 2.4 Problems . If Customer (or its third party licensors or vendors) fails to fulfill any of its responsibilities in a timely manner under Section 2.3 for any reason (including without limitation, changes, errors or omissions in Customer Information), which delays provision of the Services or results in additional costs, then Synchronoss may act as it deems prudent to mitigate such effects. In such event, Customer agrees (a) to pay Synchronoss its reasonable additional costs and (b) that any delivery dates, milestones or other time limits specified for Synchronoss’s performance shall be appropriately extended. 3. PROPRIETARY RIGHTS . 3.1 Customer Information . Customer represents and warrants that it owns all right title and interest, or possesses sufficient license rights, in and to the Customer Information as may be necessary to authorize the use thereof contemplated by this Agreement. Except for the limited rights and licenses expressly granted hereunder concerning the Customer Information, no other license is granted, no other use is permitted and Customer shall retain all right, title and interest in and to all Customer Information (including all intellectual property and proprietary rights therein). 3.2 Deliverables . Unless otherwise agreed by the parties in writing, Synchronoss shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Deliverables. Upon payment in full therefor, Synchronoss agrees to grant Customer a nonexclusive, nontransferable right and license (without right to sublicense) to use such Deliverable internally, subject to any other rights or restrictions set forth in the Statement of Work. Except for the limited rights and licenses expressly granted hereunder concerning the Deliverables, no other license is granted, no other use is permitted and Synchronoss (and its licensors) shall retain all right, title and interest in and to all Deliverables (including all intellectual property and proprietary rights therein). 3.3 Restrictions . Except as expressly permitted in this Agreement, Customer shall not directly or indirectly (a) use any Synchronoss Confidential Information to create any software or documentation that is similar to any Deliverable, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or underlying ideas, algorithms or organization of any Deliverable (only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense, transfer or distribute any Deliverable, (d) copy, create derivative works of or otherwise modify any Deliverable or (e) permit any third party to do so. Customer will promptly notify Synchronoss in writing of any unauthorized use, reproduction or distribution of any Deliverable. 4. CONFIDENTIALITY . 4.1 Scope . The term Confidential Information means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information that are disclosed by or for a party in relation to this Agreement (including all copies, analyses and derivatives thereof) and which are marked or otherwise identified as proprietary or confidential at the time of disclosure. If the
Pages where confidential treatment has been requested are stamped, “Confidential Treatment Requested” and the redacted material has been separately filed with the Commission. All redacted material has been marked by three asterisks (***).
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Confidential Information is provided orally, it shall be deemed to be confidential and proprietary if within ten (10) days after such oral disclosure, the disclosing party provides written notice (which may be in electronic form) to the receiving party identifying the Confidential Information, and indicating the oral communication shall be deemed Confidential Information. Confidential Information shall not include any information that the receiving party can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any obligation to the disclosing party, (b) generally available to the public without breach of this Agreement or (c) independently developed by it without reliance on such information. All Deliverables and pricing information are deemed to be Synchronoss’s Confidential Information when marked as such. 4.2 Confidentiality . Except for the specific rights granted by this Agreement, the receiving party shall not possess, access, use or disclose any of the other’s Confidential Information without its written consent, and shall take the same measures to prevent disclosure of Confidential Information as it takes to protect its own Confidential Information, and no event take less than commercially reasonable efforts. Each party shall transmit Confidential Information only to persons who have a need to know such information in furtherance of this Agreement. Confidential Information may be disclosed to either party’s and its Affiliates’ (defined as a person or entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the party) officers and employees, and professional advisors, without the prior consent of the other party, only if such persons (i) are advised of this Agreement and (ii) have signed written confidential agreements containing terms substantially similar to those contained in this Section 4. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided , either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry. 5. PAYMENTS . 5.1 Fees and Expenses . Customer agrees to pay Synchronoss fees in the amounts and at the times specified in the applicable Statement of Work. Subject to reasonable documentation, Customer agrees to reimburse Synchronoss for its costs and expenses in excess of [...***...] in any one (1) month, reasonably incurred in providing the Services; provided , that all such expenses must be approved in advance by Customer. 5.2 Payment Terms . Unless specified otherwise, all amounts due hereunder shall be paid within 30 days after invoice in US dollars at Synchronoss’s address (or, at its option, to an account specified by Synchronoss). Any amount not paid when due shall bear a late payment charge, until paid, at the rate of 0.5% per month or the maximum amount permitted by law, whichever is less. Customer agrees to reimburse Synchronoss for all costs (including attorneys’ fees) incurred if it institutes an action to collect late payments. 5.3 Taxes . All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Synchronoss’s net income. 6. WARRANTY AND DISCLAIMERS . 6.1 Services . Synchronoss warrants that the Services will be performed in a professional and workmanlike manner. Any warranty claim under this Section 6.1 (“ Services Warranty Claim ”) must be made in writing within 30 days after performance of the nonconforming Service. Synchronoss’s sole obligation and Customer’s exclusive remedy in respect thereof is to promptly and in a commercially reasonable time period, reperform the nonconforming Service or, at Synchronoss’s reasonable discretion, to terminate this Agreement in respect of the nonconforming Service and refund to Customer the fees paid therefor. 6.2 Deliverables . Synchronoss warrants that, as delivered, the Deliverables will materially comply with the specification therefor described in the applicable Statement of Work. Any warranty claim under this Section 6.2 (“ Deliverables Warranty Claim ”) must be made in writing within thirty (30) days after delivery of the Deliverable. Synchronoss’s sole obligation and Customer’s exclusive remedy in respect thereof is to use reasonable efforts to promptly and in a commercially reasonable time period, revise, repair or replace the nonconforming Deliverable or, at Synchronoss’s reasonable discretion, to accept return of the nonconforming Deliverable and refund to Customer the fees paid for such Deliverable. 6.3 Disclaimers . EXCEPT AS SPECIFICALLY STATED HEREIN, THE DELIVERABLES AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. SYNCHRONOSS DOES NOT WARRANT THAT: THE DELIVERABLES WILL MEET CUSTOMER’S REQUIREMENTS; OPERATION OF THE DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE; OR ANY ERRORS WHICH MAY BE CONTAINED IN THE DELIVERABLES CAN OR WILL BE FIXED. TO THE FULLEST EXTENT PERMITTED BY
*** Confidential Treatment Requested
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LAW, SYNCHRONOSS HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE DELIVERABLES AND SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. 7. INDEMNIFICATION . 7.1 Infringement . Except as provided below, Synchronoss shall (i) defend Customer against any claim by a third party that any Deliverable infringes a patent, or any copyright or trade secret, of such third party and (ii) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) finally awarded and arising out of such claim; provided , that (a) Customer promptly provides Synchronoss written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (b) Synchronoss shall have sole control and authority to defend, settle or compromise such claim. If any Deliverable becomes or, in Synchronoss’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Synchronoss may, at its option (1) obtain for Customer the right to continue using such Deliverable or (2) upon Customer’s prior written approval (such approval not to be unreasonably delayed or withheld), replace or modify such Deliverable so that becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to Synchronoss, then it may (3) terminate this Agreement upon written notice to Customer and, after return of the Deliverable, refund to Customer the depreciated value of such Deliverable (calculated as the fees paid therefor, amortized on a straight-line basis over a 3 year period from delivery). 7.2 Exclusions . Synchronoss shall have no liability or obligation to Customer hereunder with respect to any claim based upon (a) any use of the Deliverable not strictly in accordance with this Agreement, (b) use of any Deliverable in an application or environment or on a platform or with devices for which it was not designed or contemplated, (c) alterations, combinations or enhancements of the Deliverable not created by Synchronoss, (d) that portion of any Deliverable which implements Customer’s requirements, (e) Customer’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Deliverable after being provided modifications that would have avoided the alleged infringement or (f) any intellectual property right in which Customer or any of its affiliates has an interest. 7.3 Entire Liability . The foregoing states the entire liability of Synchronoss, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by any Deliverable or any part thereof or by its use or operation. 8. LIMITATION OF LIABILITY . EXCEPT IN THE CASE OF DEATH, BODILY INJURY OR FRAUD OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, AND EXCEPT FOR ANY BREACH OF THE OBLIGATIONS SET FORTH IN SECTION 4, IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OF DATA, LOSS OR INTERRUPTION OF USE OF THE DELIVERABLE OR SERVICE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (D) DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT (IN THE CASE OF SYNCHRONOSS) OR AMOUNTS PAYABLE BY IT (IN THE CASE OF CUSTOMER) HEREUNDER WITH RESPECT TO THE SERVICE OR DELIVERABLE THAT GAVE RISE TO THE CLAIM DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. NOTWITHSTANDING THE FOREGOING, THE LIMITATION IN SECTION 8(D) SHALL NOT APPLY IN RESPECT OF THE COST OF ANY DEFENSE THAT IS CONDUCTED UNDER SECTION 7.1(I) OR THE AMOUNT OF ANY AWARD OR SETTLEMENT THAT IS PAYABLE UNDER SECTION 7.1(II). 9. TERM AND TERMINATION . 9.1 Term . This Agreement shall commence on the Effective Date and continue in effect until the earlier of (a) expiration or termination of all Statements of Work or (b) the third anniversary of the Effective Date. 9.2 Convenience . Subject to any other requirements set forth in the applicable Statement of Work, Customer may terminate any Statement of Work at any time for its convenience upon at least 90 days prior written notice to Synchronoss; provided , that together with such notice, Customer pays Synchronoss any amount then payable or past due. After receipt of such notice and payment, Synchronoss shall commence winding down its performance of Services under the applicable Statement of Work in an orderly manner, and Customer shall remain liable to pay for Synchronoss’s efforts and non-cancelable expenses incurred prior to the effective date of termination. 9.3 Cause . This Agreement may be earlier terminated (in whole, or in respect of any Statement of Work) by
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either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days (10 days in the case of any non-payment) after receiving written notice of such breach from the non-breaching party or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course. 9.4 Effects of Termination . Upon expiration or termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) Customer’s liability to pay for Services performed (and non-cancelable expenses incurred) prior to the termination date shall not be extinguished, and shall become due and payable on the termination date, (b) all other obligations that accrued prior to the effective date of termination and remedies for breach of this Agreement shall survive any termination and (c) the provisions of Sections 3 (Proprietary Rights), 4 (Confidentiality), 5 (Payments), 6 (Warranty and Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9 shall survive. 10. GENERAL PROVISIONS . 10.1 Entire Agreement . This Agreement (including any applicable Statements of Work) constitutes the entire agreement between the parties with regard to, and supersedes all prior negotiations, understandings or agreements (oral or written) between the parties relating to, the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties after the date hereof, shall have no force or effect under this Agreement. This Agreement may be executed in one or more counterparts, each of which is an original, but together constituting one and the same instrument. Execution of a facsimile copy shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature. No changes, modifications or waivers may be made to this Agreement unless in writing and signed by both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. 10.2 Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law provisions or any rule that would cause the application of the laws of any other jurisdiction. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in New York, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover the costs and expenses (including reasonable attorneys’ fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained. 10.3 Relief . Each party agrees that, in the event of any breach or threatened breach of Section 3 or 4, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach or threatened breach, without the necessity of posting any bond or surety. Such remedies shall be in addition to any other remedy that the non-breaching party may have at law or in equity. 10.4 Notices . All notices under this Agreement will be in writing, in English and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested. 10.5 Assignment . This Agreement and the rights and obligations hereunder may not be assigned or otherwise transferred by either party without the prior written consent of the other, except that either party (without consent) may assign its rights and obligations hereunder to any of its Affiliates or to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise). Any attempted transfer in violation hereof will be void and of no effect. Synchronoss may also subcontract performance of any Service. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties. 10.6 Independent Contractors . The parties shall be independent contractors in their performance under this Agreement, and nothing contained herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
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10.7 No Interference . During the farm of this Agreement and for 1 year thereafter, neither party will directly or indirectly recruit, employ or retain any employee of the other party, or otherwise solicit, induce or influence any employee to leave their employment with the other party, or attempt to do so, except with the other party’s written consent. 10.8 Publicity . Within 30 days after the Effective Date, the parties (jointly or separately, as the parties may decide) shall issue a press release approved by both parties (such approval not to be unreasonably delayed or withheld) concerning the arrangements in this Agreement. During the term of this Agreement, each party authorizes the other to include its name and logos in partner listings that may be published as part of its marketing efforts. Except for the foregoing, any news release, public announcement, advertisement or publicity released by either party concerning this Agreement will be subject to prior approval of the other party, which shall not be unreasonably withheld or delayed.
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IN WITNESS WHEREOF , intending to be legally bound, the parties have caused their duly authorized officers to execute this Agreement as a sealed instrument, as of the Effective Date. SYNCHRONOSS TECHNOLOGIES, INC.
CUSTOMER
By: /s/ Name: Stephen G. Walais Title President/CEO
By:
/s/ Name: Michael Tribolet Title EVP of Operations May 9, 2005 6
Exhibit A
STATEMENT OF WORK #____ This Statement of Work #____ is entered into by VONAGE NETWORK, INC. , a Delaware corporation with a principal place of business at 2147 Route 27, Edison, NJ 08817 ( Customer ), and SYNCHRONOSS TECHNOLOGIES, INC. , a Delaware corporation with a place of business at 1525 Valley Center Parkway, Bethlehem, PA 18017 ( Synchronoss ), pursuant to that certain Master Services Agreement between the parties, dated as of May 10, 2005 (the Services Agreement ). This Statement of Work shall have no effect separate and apart from the Services Agreement, and all capitalized terms used herein without definition will have the same meanings as specified therefor in the Services Agreement. Customer and Synchronoss agree as follows:
Services :
Deliverables :
Milestones and Schedule:
Fees:
Special Provisions:
AGREED as of May 9 th , 2005:
SYNCHRONOSS TECHNOLOGIES, INC.
CUSTOMER
By: /s/ Name: Stephen G. Walais Title President/CEO
By:
/s/ Name: Michael Tribolet Title EVP of Operations May 9, 2005 7
VONAGE THE BROADBAND PHONE COMPANY VoIP Activation Services Program Statement of Work Date: 05/05/05
Proprietary Information Not to be disclosed without written permission from both Vonage Network Inc. and Synchronoss Technologies, Inc.
TABLE OF CONTENTS 1.0
STATEMENT OF WORK
3
2.0
STATEMENT OF WORK (“SOW”) OVERVIEW
3
3.0
DEFINITIONS
3
4.0
PROJECT SCOPE
7
5.0
PROJECT RESPONSIBILITIES, ASSUMPTIONS AND METRICS
9
6.0
ADDITIONAL SYNCHRONOSS DELIVERABLES:
15
7.0
CRITICAL MILESTONES
16
8.0
COMPENSATION
17
9.0
INTELLECTUAL PROPERTY INVENTORY
17
10.0 TERM AND TERMINATION
18
11.0 PROJECT LEADS
19
12.0 ACCEPTANCE OF STATEMENT OF WORK
19
SCHEDULE B - SLA
23
ATTACHMENT 2
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1.0 Statement of Work This Statement of Work is entered into with Vonage Network Inc., a Delaware corporation (“Vonage” or “Customer”) with a principal place of business at 2147 Route 27, Edison, New Jersey 08817 and Synchronoss Technologies, Inc. a Delaware corporation with a pricipal place of business at 750 Route 202 South, Suite 600, Bridgewater, NJ 08807, (“Synchronoss”) pursuant to the Master Services Agreement between the parties, dated as of May 5, 2005 (the “Services Agreement”). This Statement of Work shall have no effect, separate and apart from the Services Agreement, and all capitalized terms used herein without definition will have the same meanings as specified therefore in the Services Agreement. 2.0 Statement of Work (“SOW”) Overview 2.1
Business Overview and Objectives
Synchronoss has been implementing back office solutions for telecom carriers since 2000. By using the Synchronoss proprietary service platform, ActivationNow®, and its Order Management Center, Synchronoss tailors solutions to meet client needs. Synchronoss assumes the entire function of the LNP solution for clients or will manage selected defined processes of the LNP function depending on client needs. While there are many companies offering pieces of the LNP solution, Synchronoss implements the entire function thereby saving their clients’ time and expense. This SOW supports Vonage’s Local Number Portability solution by using Synchronoss’ ActivationNow® platform. Synchronoss will provide the Customer a turnkey, outsourced end to-end solution including systems and human resources. 3.0 Definitions Word
ActivationNow Cancel Order Care Record CCA Change Order CSR
Definition ®
Synchronoss’ propriety platform integrates the process components critical to complex voice, data and lP service fulfillment. An Order to cancel a pending transaction at any time before completion or before the Order is declared incomplete. Notification to the incumbent Long Distance carrier that the Customer no longer belongs on their network. Vonages internal Customer Care Application that manages various internal workflow. An Order to change the FOC Date or other Order information on a pending Order where the change is submitted before or on the FOC Date. Customer Service Record is the service inventory detail provided to an end user by a telephone service provider © 2005 Synchronoss Technologies Inc. 3
Customer Dashboard Disconnect DL Donor Carrier DD (Disconnects Only) ELOA Ebonded End User Exception Order Fallout FOC Date Incomplete Order IXC LD LEC LERG LIDB LNP LOA LSP
Vonage Network Inc. A web screen that allows the user to view agreed upon information. An Order to disconnect a number that was previously ported to Vonage and is now returned to the carrier who owns the block of which the number is a part. Directory listing LSR which is needed to create a published listing. The carrier that owns the number and from which the Customer wishes to Port the number. The date on which the Disconnect activity is to occur. Electronic Letter of Authorization gives permission to Vonage and its Network Service Providers to port an end users number Connected via a mechanized interface using CORBA or XML The final user of a service provided by Vonage or a Telephone Service provider An order where an SLA is not met When Orders do not flow through the systems and require manual intervention to complete the Order process. The date the Donor Carrier has confirmed the Port will take place. An incomplete order that has had no activity for 45 days and a subscription has not been done at the NPAC. Inter-Exchange Carrier provides telephone service between service exchanges Long Distance is a service provided by different companies to process calls outside an end users local calling area Local Exchange Carrier provides local telephone service to end users Local Exchange Routing Guide which lists all North American Class 5 Offices and describes their relationship to Class 4 offices Line Information Database containing all valid telephone and calling card card numbers in the relevant region, and has the necessary information to perfom billing validation Local Number Portability is the process of moving a donor carriers telephone number to a new carrier Letter of Authorization provides the new telecommunications provider with permission to act on behalf of a customer The local telephone company currently providing service to the subscriber 4
LSR Manual CSR Lookup Non-Ebonded NPAC NSP Order Order Number Port Port Date Port In Order Port Out Order Production Period Real Time CSR Lookup Recipient Carrier RT SME SOA
Local Service Request is a form used to process porting requests with the carriers A non eBonded CSR lookup is completed with carriers to which Synchronoss is not connected to via a mechanized interface All other methods of connectivity between two companies, including E-fax and using the LSPs / LSPs GUI Refers to all Number Porting Administration Centers located in the United States of America Network Service Provider refers to the companies Vonage uses to provide their last mile telephone service connectivity, numbers and connectivity A transaction(s) being taken on a Donor Carrier’s or a Customer’s telephone number(s) that is being ported, disconnected, changed, or moved, as specified in an LSR. A unique identifier that the Customer assigns to its customer’s Orders. The process of activating one carrier’s number on a different carrier’s network. The day the number is transferred from the Donor Carrier to the Recipient Carrier. An Order that moves a number from a Donor Carrier to the Customer. A Port In Order will include multiple directory listing per telephone number so long as the DL request is received by Synchronoss on the same Order as the Port In request. An Order where another carrier requests to Port a number from the Customer and needs a CSR, FOC, and NPAC concurrance. A Port Out Order will include the removal of all affected directory listings so long as the DL removal request is received by Synchronoss on the same Order, using the same Order number as the Port Out request. The 24 months following the Transition period and beginning with the first successful Managed Services Order processed. A CSR lookup with a carrier that Synchronoss is connected to via a mechanized interface A carrier who is porting a number away from the Donor Carrier. Response Tracking is the system utilized by Vonage customer care to track end user email communications Subject Matter Expert is someone knowledgable in a specific area Service Order Administrator is the compute system used to talk to the NPAC 5
SPID SPOC SSL Standard Reports Status Codes Subscriber SUP TPV Transaction VoIP
Service Provider Identification Number for the NPAC Single Point of Contact is the key individual within a company assigned to handle the internal coordination needed between departments to work with an outside vendor Secure Socket Layer used for secure data transmitting Reports that are designed and delivered on a recurring schedule that provide Order status and SLA status. Codes that explain the status of an Order during the processing of an Order. A Vonage Customer A change to a LSR used to notify a carrier of an Order change. Third party verification used to record the end customer’s approval to port the number. One of the following types of invoiceable Orders: Port In, Port Out, Change FOC Date / Cancel, Disconnect, Directory Listing, or Incomplete. Voice Over Internet Protocol used to provide a form of telephone service 6
4.0 Project Scope 4.1
Overview
To meet the Customer’s end state LNP requirements, Synchronoss shall support the following functions: 4.1.1 Vonage or Vonage’s LOA provider shall collect the end user Order information and provide it to Synchronoss. Synchronoss shall coordinate the remainder of the LNP processes up to the submittal of the LNP order information to the NSP. 4.1.2 Synchronoss shall support Vonage’s NSPs with their porting of Vonage’s number, including processing the LSR on behalf of the NSP if the NSP chooses that service. 4.1.3 Once Vonage receives the FOC Date, the internal workflows will get updated and provisioning coordinated by Vonage Customer Care and Vonage Operations. Vonage’s NSP will respond with the final request to Synchronoss to activate the Port. Synchronoss shall activate the Port and notify Vonage that the Port has been successfully activated within the agreed upon SLAs. 4.1.4 Synchronoss shall provide order status and reports to support these functions. In initial phases the order status will be provided by Synchronoss via a daily update which will be used to manually update Customer Account Status by the Vonage LNP Team. In the final phase, Synchronoss will provide real time status updates through their ActivationNow® platform which will be integrated into the Vonage Business systems by Vonage internal development. 4.2
Services to be provided
To meet Customer’s LNP order processing requirements, Synchronoss shall provide the following Set-Up and Configuration services: 4.2.1 4.2.2 4.2.3 4.2.4 4.2.5 4.2.6 4.2.7 4.2.8 4.2.9
Configuration of and access to the Synchronoss ActivationNow® platform for Porting and workflow management Hosted hardware Allocation of hosted SOA / NPAC Full tier 1 to 3 tech support for ActivationNow® Fully redundant systems Access to Web-based Order status and reporting interface Data collection and reporting development Generate Status Codes and data streams to provide Customer with an up to date status of every Order Maintain and update systems and programs
In order to process each Order, Synchronoss shall host the ActivationNow® platform at its site and manage the personnel to provide the following functions: 4.2.10 4.2.11
Retrieve correct LEC name Retrieve CSR 7
4.2.12 Customer and Synchronoss will agree on universal service order codes (“USOCs”) that Customer would like to see by Customer product code 4.2.13 Highlight CSR data for Subscriber and return the CSR data for Subscriber reconciliation 4.2.14 Negotiate the LSR 4.2.15 Submit the LSR to Vonage’s NSPs 4.2.16 Generate Reports, as specified in Section 4.3 below, and delivered as specified by Vonage. For Vonage’s NSP’s that would like Synchronoss to port Vonage’s numbers on their behalf, Synchronoss shall provide the additional Port In functionality and manage personnel to perform the following functions: 4.2.17 Submit LSR to CLEC’s and LSPs 4.2.18 Receive FOC Date 4.2.19 Notify NSP and Vonage of FOC confirmation 4.2.20 Create NPAC Subscription Version 4.2.21 Activate Port in NPAC 4.2.22 Port Confirmation 4.2.23 CARE Record to incumbent LD provider - disconnect message goes from STI to incumbent long distance provider in instances where Synchronoss is performing full porting on behalf of the NSP. 4.2.24 Fix Exceptions (LSR and CSR) 4.2.25 Handle FOC Date Escalations / Changes with the Donor Carriers 4.2.26 Act as liaison between the Donor Carriers and Customer Port Out and Disconnect Process performed by Synchronoss shall include the following : 4.2.27 4.2.28 4.2.29 4.2.30 4.2.31
Point of contact for Recipient Carriers Passing CSR Processing FOC Issue LSR for directory removal NPAC concurrence
4.2.32 Synchronoss shall designate personnel to work with Customer to create an interface that will make Order flow and communications between the two companies seamless and near real time. The interfaces between the two companies will also provide Order status and allow for Standard Report selection and creation. 4.3
Reporting
During the development of the detailed system requirements, Synchronoss and Customer will agree on 8 Standard Reports and 2 customer defined reports. The frequency of these reports and their recipients will be agreed upon during the set up and configuration phase. The following are the standard 8 reports: 4.3.1 4.3.2 4.3.3 4.3.4 4.3.5
Volumetric Report - Shows daily volume by NSP Invoice Report - Shows order being billed for SLA Report - FOC date SLA Report - Activations SLA Report - Systems 8
4.3.6 SLA Report - Number of orders processed by CSR pulled 4.3.7 Due Date Interval Report by carrier 4.3.8 Daily Activity Report (Blackberry Delivery) 4.3.9 Synchronoss shall also supply Vonage with the raw reporting data from the STI database, on a monthly basis, via an FTP site that Vonage will be able to access. (see attachment 2) 5.0 Project Responsibilities, Assumptions and Metrics 5.1 5.1.1
Synchronoss Responsibilities Synchronoss Project Manager
The Synchronoss Project Manager shall coordinate, plan, organize, control, integrate, and manage the completion of all project initiatives according to sound project management principles. The Synchronoss Project Manager has overall project implementation responsibility and accountability for implementing the ActivationNow® platform. As part of the overall project lifecycle, Synchronoss responsibilities and activities for each delivery phase of the LNP program are described as follows: 5.1.2
Transition Phase The “Transition Phase” shall begin on June 1, 2005. During the Transition Phase, Synchronoss shall perform the following functions: (Pending Vonage and 3PV development cycles) 5.1.2.1 Synchronoss shall pull CSR’s. Synchronoss will manually pull CSR information. • 5.1.2.2 Identify Feature Flags. Synchronoss Agents will see flags via the Synchronoss GUI. • Synchronoss Agents shall notify the Vonage subscriber via Vonage’s RT email system. • This is manual and activated by Synchronoss via the RT system. • RT email is separated by Vonage and made accessible to a Synchronoss representative. This • process will be completed by Synchronoss. The final process has not been completely defined although it will require Synchronoss to have access to the RT system. Assumption : If a subscriber calls or emails a response to the RT, Vonage will process the order • as they have prior to the transition phase. 5.1.2.3 Synchronoss will populate LSRs or Spreadsheets. at the beginning of the transition phase. “Spreadsheet” shall mean the agreed upon method that Synchronoss shall use to communicate LNP orders and status with NSPs, as shall be specified by Vonage.
•
The NSP has a choice of Spreadsheet or auto populated LSRs If no CSR is available, order goes on Spreadsheet or pre-populated LSR. • Synchronoss will triage the CSR when no CSR is available from the carrier and attempt to • validate the address through known sources. Synchronoss will access the LERG / NPAC to validate NPA/NXX ownership. • 9
•
Assumption: Rejects in the Master Log are handled by Vonage (Business as Usual).
Transition Phase Workflow (Subject to Development Review/Implementation in the time between LOl completion May 3rd and Transition Phase Launch on June 1St. This may change based on mutually agreed upon implementation criteria.) [GRAPHIC] 10
5.1.3
Managed Services - Phase 1
The “Managed Services - Phase 1” shall begin on June 29, 2005. During the Managed Services - Phase 1, Synchronoss shall perform the following functions: (Subject to change during the Transition phase, which shall begin on May 3, 2005 and end on June 1, 2005) 5.1.3.1 Synchronoss shall provide an automated LNP Website - Real time via a 3PV “thank-you” screen to the LNP Website, or alternatively, as shall be determined by Vonage, the Automatic LNP website shall process email (Vonage can decide on the customer experience) 5.1.3.2 LNP Call Center fallout Synchronoss shall start handling Reject Logs for all new rejects that originated in the Synchronoss system • from June 29 forward. Synchronoss shall send emails back to the Vonage subscriber via RT • • Assumption - After email is sent the Order is canceled after XX days (up to a maximum of 30) if no customer response has been received. If a response is received, then the order shall be acted upon by Synchronoss or canceled. Current process of reopening ticket if contacted by the customer is handled by Synchronoss, • unless customer contacts Vonage directly, in which case Vonage shall reopen the ticket. 5.1.3.3 LERG / NPAC Dip. Synchronoss shall use the LERG and NPAC to verify subscribers current telephone service provider (done in May). 5.1.3.4 Pull Real time CSRs (Mechanization) 5.1.3.5 Real Time Feature Flags. Subscribers will be provided with real-time status on feature flags associated with the line they are porting via the Synchronoss web interface (Status via the web). 5.1.3.6 Post results back to Synchronoss’ Graphical User Interface (GUI) (Status to be provided to the Vonage Subscriber via Vonage / Synchronoss website according to some method to be determined by Vonage and Synchronoss) 5.1.3.7 LSRs will be processed by NSPs (Managing the Master Log) 5.1.3.8 Reporting for 8 standard reports and 2 custom reports, as are set forth in Section 4.3 above. 5.1.4
Managed Services Phase 2 - Full Mechanization
The “Managed Services - Phase 2” shall begin on August 30, 2005. During the Managed Services - Phase 2, Synchronoss shall perform the following functions: (Subject to change during the Transition phase, which shall begin on May 3, 2005 and end on June 1, 2005) 5.1.4.1 5.1.4.2
Fully Mechanized LNP Process from Customer to Port numbers NSP Options: (The NSP’s decision will be delivered to Synchronoss via a LOA in conjunction with Vonage. NSP can port the number • Synchronoss can port the number for NSP •
Additional scope and services provided by Synchronoss shall include: 11
5.1.5 Synchronoss shall Interface with the Customer SPOC for any project issues. 5.1.6 Synchronoss shall participate in Customer LNP project meetings. 5.1.7 Synchronoss shall provide a single-point-of-contact for Customer. 5.1.8 Synchronoss shall maintain confidentiality and abide by Customer LNP policies. 5.1.9 Synchronoss shall document business requirements that are required to meet the objectives of this SOW. 5.1.10 Synchronoss shall provide Customer with requirements documentation so Customer can build interfaces to Synchronoss, and build internal systems and process support for LNP. 5.1.11 Synchronoss shall provide all necessary resources to perform tasks outlined in this SOW. 5.1.12 Synchronoss shall provide a SPOC and escalation process for systems and Order fulfillment when Customer launches LNP. 5.1.13 Synchronoss shall provide Vonage access to all data and systems as reasonably necessary to support project timelines and objectives. 5.1.14 Synchronoss shall provide System release schedules, updated Requirements, APIs and maintenance schedules. 5.1.15 Synchronoss shall support its two (2) latest releases of the ActivationNow® platform concurrently. 5.2
Customer’s Responsibilities
In connection with this SOW, Customer shall perform the following functions: 5.2.1 Customer shall assign a SPOC to coordinate and manage all internal Customer activities to support the project schedule for the Customer’s internal updates. 5.2.2 Customer shall make available SME’s to work with Synchronoss on a real-time basis as required. 5.2.3 Customer shall provide Synchronoss personnel 2-3 cubes with networking connection and a phone for each cube. 5.2.4 Customer shall provide access to all data and systems as reasonably necessary to support project timelines and objectives. 5.2.5 The Customer’s SPOC will designate and invite the appropriate attendees to participate in weekly (or other mutually agreed to time period) project status meetings. 5.2.6 While in production, the Customer shall provide a SPOC and escalation process for both systems and Order fulfillment. 5.2.7 Customer shall develop and manage its internal business flows and processes that react appropriately to the Synchronoss business model. 5.2.8 Customer shall provide Synchronoss a LOA or a method to work with Donor Carriers to configure ActivationNow® and resolve Order issues. 5.2.9 Customer shall exchange relevant information from Carrier Interconnection Agreements with Synchronoss in order to understand contractual ordering nuances. 5.2.10 Vonage shall have the 3PV process completed, tested, and implemented by 5/15/05. 5.2.11 Vonage shall provide Synchronoss with system release schedules to help coordinate activities 5.2.12 On the 1st of each Production Period month, Vonage shall transmit to Synchronoss a hard forecast of the total number of Orders of all types expected for the subsequent month, as well as a rolling soft forecast of the total number of Orders of all types expected for the subsequent 60 days. 5.2.13 Customer shall update its processes, operations, systems and all interfaces to support one of the two (2) latest releases of ActivationNow®. 12
5.3
Project Assumptions
5.3.1 Both parties will agree and sign off on detailed requirements documentation. 5.3.2 Target functionality is to support the flow through of common, simple Orders. 5.3.3 Synchronoss will provide ActivationNow® system API documentation. 5.3.4 Customer will provide a SPOC for all LNP process requests and to help coordinate activities with key stakeholders. 5.3.5 Synchronoss will provide Customer with a SPOC for this project in addition to an escalation process and contact list. 5.3.6 Customer will provide Synchronoss with a SPOC for this project in addition to an escalation process and contact list. 5.3.7 Customer will provide technical SME for data integration process. 5.3.8 Data encryption is SSL or other alternative method agreed to by parties. 5.3.9 Project status meetings will occur weekly (or other mutually agreed to time period) via teleconferencing or in person. 5.3.10 Customer resources will be available and committed to a schedule for analysis, review and clarification and project related issues. 5.3.11 Customer and / or Synchronoss will resolve outstanding issues within a reasonable time period. 5.3.12 Synchronoss shall retain LNP information for up to 2 years, and will transfer these records to Vonage per an agreed upon transmission format. See Attachment 3. 5.4
Performance Metrics
Please see attached Schedule B for SLAs. 6.0 Additional Synchronoss Deliverables: Synchronoss shall provide to Vonage the following additional deliverables: 6.1 6.2
6.3 6.4 6.5 6.6 6.7
Requirements documentation for interface to Synchronoss with manual processes defined. Mechanized interface to Verizon, BellSouth, Qwest, SBC and other carriers for the processing of CSR and if needed, Porting / DL LSR on behalf of Vonage’s NSP. For Porting of LSR’s / DL on behalf of Vonage will require STI to certify with the carriers on behalf of • Vonage’s NSPs LNP Management Group within Synchronoss to manage the LNP process. 8 Standard Reports plus 2 customer defined reports. System Maintenance. ActivationNow® Platform modifications necessary to meet Donor Carriers’ CSR and LSR requirements. Disaster Recovery Plan for ActivationNow® Platform. 13
7.0 Critical Milestones 7.1
Transition Phase
During the Transition Phase, which shall begin on May 3rd and last until June 1st the following shall take place: 7.1.1 Spreadsheet Definitions to create NSP processing logs will be provided by Vonage. 7.1.2 Detailed requirements for transition functions including CSR request and completion, LNP order information sent and reporting will be provided by Synchronoss. 7.1.3 Directory Listings on LNP Orders will be specified by the Vonage subscriber as “Keep” or “Remove”. 7.1.4 Synchronoss update interface to 3PV for new Vonage xml. 7.1.5 Integration testing to test the flow through capability between the 3PV and Synchronoss systems to be performed by Synchronoss and 3PV. 7.1.6 User Acceptance Testing to test the LNP process and systems integration between 3PV and Synchronoss to be performed by Vonage, 3PV, and Synchronoss. 7.1.7 Synchronoss and 3PV will deploy an integrated solution (as identified in Transition Phase workflow chart, above, which is subject to change) to Production. 7.2
Managed Services Phase (Phases to be discussed and defined next meeting)
During the Managed Services Phase, which shall begin on June 29th and be fully implemented on August 30th the following shall take place: 7.2.1 7.2.2
Vonage will integrate its systems to the Synchronoss Gateway based on the API provided by Synchronoss. Synchronoss will have the capabilities to change DL and add DL for both LNP Orders and Customer number Order. 14
8.0 Compensation 8.1
Pricing
Refer to Schedule A. 8.2
Key Pricing Assumptions
8.2.1 Synchronoss shall invoice the Customer on the first of every month for the preceding month’s transactions. 8.2.2 Any required travel, out-of-pocket expenses and professional services will be negotiated and approved in writing by both parties. Notwithstanding anything to the contrary in the Services Agreement, Synchronoss shall not be entitled to reimbursement for any travel or other out-of-pocket expenses related to this SOW without the prior written consent of Customer. 8.2.3 All telecommunications and bandwidth costs between Vonage and Synchronoss, or Vonage’s channel partners/customers and Synchronoss, will be provided by Vonage at its expense. 8.2.4 Synchronoss shall provide an invoice to Vonage in an agreed upon format by June 1,2005. 8.2.5 Vonage shall have the right to audit Synchronoss’ invoice and Synchronoss will provide the data each month of detailed transaction information. 8.2.6 Vonage and Synchronoss will agree on and document an invoice dispute resolution process during the implementation phase. 8.2.7 Vonage shall hold Synchronoss harmless from any damages arising from a positive LOA response that is received from Vonage or Vonage’s LOA provider. 9.0 Intellectual Property Inventory All software, processes and other information, as well as all modifications, fixes and upgrades to same described in this Section 9.0 shall be deemed to be Background Materials as such term is used in the Services Agreement. Synchronoss Intellectual Property for this project consists of ActivationNow® and its components including without limitation the following: 9.1
Electronic Order Gateway that is used to receive both LNP and non LNP Orders from the Customer and provide status back to the Customer using Synchronoss defined messages.
9.2
Work Flow Manager, which is used to process Orders.
9.3
Web Based User Interface used to view and manage Orders.
9.4
Standard Interfaces to LSPs, NPAC and Neustar for transmitting data between Synchronoss and these companies.
9.5
Service Order Administrator (“SOA”) used for NPAC inventory and Order processing.
9.6
A reporting GUI used to show Customer standard reports and status.
9.7
Real Time CSR Functionality. 15
10.0 Term and Termination 10.1.1 Termination for Convenience The term of this SOW is from May 3, 2005, and continues for a 24 month Production Period following the Transition Phase. Any time during the LNP implementation or at the conclusion of this SOW, the Customer may extend this project or increase the scope. In such event, the parties will negotiate in good faith an amendment to this SOW with the revised scope, deliverables, and associated pricing. Customer shall notify Synchronoss with a minimum of [...***...] advanced notice in writing, of Customer’s intention to terminate this SOW for convenience, during which period, Synchronoss shall continue to provide services in connection with this SOW. Unless terminated by either party, the project will automatically continue for successive 12 month periods under the terms of this agreement. If the Customer terminates for convenience the Customer will be obligated to pay the following charges. Period Termination Fee Termination Fee if Vonage meets contract Value of [...***...]
From the beginning of the SOW and through the Transition Phase and Managed Services Production Phase [...***...] - Prorated @ [...***...],-i.e. if cancelled in month [...***...] Vonage will pay Synchronoss [...***...] [...***...] or prorated per the above schedule which ever is less
10.1.2 Termination for Performance Notwithstanding anything to the contrary in this SOW or the Services Agreement, Vonage may terminate this SOW following the first three (3) Production Period months (“Termination Grace Period”) without liability in the event Synchronoss fails to meet the same SLA requirement for any three (3) consecutive months following the Termination Grace Period and, as a result, the Customer is entitled to receive the maximum credit under such SLA during such three consecutive month period. Vonage may also terminate the SOW following the first six (6) Production Period months (“Termination Grace Period”) without liability in the event Synchronoss fails to meet the same SLA requirement for any four (4) months within a 12 month period following the Termination Grace Period and, as a result, the,Customer is entitled to receive the maximum credit under such SLA during such four months out of a 12 month period. The following SLA’s are exempt from the Termination for Performance criteria:
•
SLA#ll
•
SLA #12
*** Confidential Treatment Requested 16
11.0 Project Leads Vonage Network Inc. Name: Synchronoss Technologies, Inc. Name: Anthony Socci 12.0 Acceptance of Statement of Work Vonage Network Inc. Signed Title
/s/
Date
May 9, 2005
Date
May 9, 2005
EVP of Operations
Synchronoss Technologies, Inc. Signed Title
/s/ President / CEO
17
Schedule A 1.0
Connect Fee
Connect fee of [...***...]. This fee is invoiced on date of SOW execution for services and expenses associated with establishment of the LNP outsource. 2.0
Transaction Pricing Table Monthly Fee Schedule
Port In Port Out Changes Imcomplete DL Cancel/ Disconnect
Billing Definition Applies when a LSR or Spreadsheet is sent to an NSP for a TN or when a transaction is fully completed(still need to define) Applies when a LSR or Spreadsheet is sent to an NSP for a TN Applies when a order is changed less than 24 hours before the FOC date Applies when an order remains in the same status for up to 45 days. Applies to stand alone Directory listing orders and billed when the order is completed Applies to orders that are canceled before subscription at NPAC or after a LSR / spreadsheet is sent. A disconnect fee applies when a LSR is issued to remove the listing and the NPAC is provisioned Applies when a CSR does not go to a LSR or spreadsheet Applies when an LSR or Spreadsheet is issued for a TN
20,000-50,000
50,001-100,000
100,001-200,000
200,001 +
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
[...***...]
Manual CSR Lookup Real Time CSR (for nonporting orders) Applies per TN when Synchronoss is SOA/TN’s (per processing the entire porting order in TN) conjunction with a LSR charge. *** Confidential Treatment Requested
18
3.0
Pricing Terms and Special Provisions
3.1
Total Transactions
Vonage will be invoiced a Minimum Monthly Fee of [...***...] each month of the 24 Production Period months following the Transition Phase less credits applied for any SLA remedies. The total aggregate Minimum Monthly Fee for this SOW totals [...***...] for the 24 month Production Period. This Minimum Monthly Fee reflects the base contractual commitment for this SOW, and is not impacted by any forecast variances defined in section 3.2. Transactions or Order Types of any variety described in Section 2.0 may be applied to the Monthly Minimum. The Minimum Monthly Fee shall be paid even in instances where actual invoiced transactions do not total [...***...] a month. 3.2
Monthly Forecast
On the 1st of each Production Period month, Vonage will transmit to Synchronoss a hard forecast of the total number of Orders of all types expected for the subsequent month, as well as a rolling soft forecast of the total number of Orders of all types expected for the subsequent 60 days. The forecast has no effect on the associated Minimum Monthly Fee. However, the hard forecast will be used to determine the appropriate Transaction prices per the Monthly Fee Schedule in 2.0 of this schedule. 3.2.1
Monthly Forecast for Production months 1 – 24 a.)
***
If the actual number of Orders exceeds [...***...] of the Vonage forecast, Synchronoss shall either: 1.1.1
Apply best efforts to the orders above [...***...] and not be bound to the conditions provided in Schedule B for SLAs.
1.1.2
Negotiate a premium payment to manage excess Order volumes over the 110% forecast with no effect on the Schedule B SLAs.
1.2
If the actual number of Orders is less than [...***...] of the Vonage forecast, Vonage will be invoiced an amount equal to [...***...] of the forecast, provided the adjusted amount is above the current Monthly Minimum Fee. In situations where Vonage’s forecast is above the Monthly Minimum Fee, the delta between the Minimum Monthly Fee and [...***...] of forecast will be invoiced at the Port-In rate.
Confidential Treatment Requested 19
Example I [...***...] July 05 [...***...] = [...***...] orders July 05 [...***...] = [...***...] orders (¼ manual CSRs ¾ Port-ins) July 05 [...***...] = [...***...] orders [...***...] July 05 Invoice Calculation 48,750 Port ins @ [...***...] 16,250 Manual CSR @ [...***...] [...***...] below [...***...] of forecast Total invoice
[...***...] [...***...] [...***...] [...***...]
Example II [...***...] July 05 [...***...] = [...***...] July 05 [...***...] = [...***...] (¼ manual CSRs ¾ Port-ins July 05 [...***...] = [...***...] orders [...***...] July 05 Invoice Calculation 48,750 Port ins @ [...***...] 16,250 Manual CSR @ [...***...] Zero orders below 85% Total July 05 invoice
$
[...***...] [...***...] 0.00 [...***...]
Example Ill [...***...] July 05 [...***...] = [...***...] July 05 [...***...] = [...***...] (¼ manual CSRs ¾ Port-ins July 05 [...***...] = [...***...] orders [...***...] July 05 Invoice Calculation 67,500 Port ins @ [...***...] 22,500 Manual CSR @ [...***...] Applied best effort Total July 05 invoice
$
[...***...] [...***...] 0.00 [...***...]
Example IV [...***...] July 05 [...***...] = [...***...] July 05 [...***...] = [...***...] (¼ manual CSRs ¾ Port-ins July 05 [...***...] = [...***...] orders [...***...] July 05 Invoice Calculation 66,000 Port ins @ [...***...] 22,000 Manual CSR @ [...***...] 1,500 Port-in premium 500 manual CSR premium Total July 05 invoice
[...***...] [...***...] [...***...] + premium [...***...] + premium [...***...] + premium
*** Confidential Treatment Requested 20
3.2.2. Estimate of Premium In any case where the actual number of Orders exceeds forecast by [...***...] such that a premium payment could be applied to manage excess forecast, Synchronoss shall provide an estimate of the amount of such payment. 3.3 Network Trading Partner (NSP) Set Up Fees 3.3.1 One time fee for setting up an NSP for porting - [...***...] per NSP 3.3.2 NSP NPAC Certification/Testing Fee (per SPID) - [...***...] for first NPAC and [...***...] for each additional NPAC per [...***...] NSP -These rates apply per SPID
3.4 Project Order Handling Projects are orders that have 50 telephone numbers (“TN’s”) or more on a single LSR. Projects require special handling as well as human monitoring of the order to completion. The Fee for Project Orders is [...***...] per order. Additionally, each TN will be invoiced at the SOA/TN transaction fee at the appropriate volume price in the table in section 2.0 of Schedule A. 3.4.1 Coordinated Cut Fee A fee of [...***...] an hour with a one hour minimum during normal Synchronoss business hours (8am - 9pm eastern, Monday Friday) [...***...] an hour with a two hour minimum for after hours cuts. This fee applies when a Synchronoss Service Coordinator is required to be available by phone to coordinate and test provisioning for a business customer with Vonage or a Vonage NSP. 3.5 CSR Lookup Fees CSR Lookup Fees (as per Schedule A) are an independent order type, and are applied in instances when a pre-populated LSR is not submitted by Synchronoss to the NSP or LSP. In other words, if a Port order does not result from a CSR Lookup, the appropriate CSR transaction price, and not a Port transaction price, will be applied. The CSR and Port transaction prices are not cumulative. If a Port order results from a CSR Lookup, the Port transaction price will be applied. CSR Lookups are inclusive to Port transaction prices. 3.5.1 Manual CSR Lookup - a Manual CSR Fee is only applied in order instances when a Real Time CSR is not available, a Synchronoss OMC resource performs the CSR lookup, but an LSR is not submitted to the NSP or LSP. 3.5.2 Real Time CSR Lookup - The Real Time CSR Fee is only applied in instances where the Vonage subscriber triggers a CSR Lookup through the ActivationNow platform, but an LSR is not submitted to the NSP or LSP. 3.6 Optional Consultant/Agent Fee *** Confidential Treatment Requested 21
The optional Consultant/Agent Fee shall be available upon mutual agreement of the parties. 22
Schedule B - SLAs
• • •
The SLA Table attached hereto as Schedule B will be updated as needed by mutual agreement. A non complex order is an order with 3 telephone numbers or less on the order. A complex order is an order with greater than 3 telephone numbers on the order. 23
24
CSR Lookup SLA Category
1.) The processing time for Synchronoss to process a manual CSR using a LSPs/CLEC GUI
Response
This is the period of time from when STI receives the 3PV message, processes the CSR and either creates a ticket in RT to notify customer of potential porting errors, or populate the NSP Process Log
Synchronoss will process [...***...] of the CSR orders within [...***...] of receipt from 3PV. This is measured by receipt timestamp and the timestamp associated with events in the STI system. This SLA only applies to [...***...] of the [...***...] amount. For daily volume over [...***...] this SLA does not apply to those orders.
Credit
[...***...] credit off of the Transaction fee for CSRs not returned to Customer within [...***...] .
[...***...] credit off of the Transaction fee for CSRs not returned within
[...***...] . [...***...] credit off of the Transaction fee for CSRs not returned to Customer within [...***...] . These credits are not cumulative, so each Order can only receive a maximum credit of [...***...] .
2a.) The processing time for Synchronoss to process a manual CSR when a CSR is requested from an LSP /CLEC via email or fax
2b.) The time for STI to process the response to an email / fax CSR response from an LSP or CLEC
This is the period of time from when STI receives the 3PV message, sends the CSR request via email or fax to the LSP/CLEC.
This is the period of time from when STI receives the email back from the LSP/ CLEC and either creates a ticket in RT to notify customer of porting issues, or populate the NPS Process Log
Synchronoss will process [...***...] of the orders for CSRs received within [...***...] of receipt from 3PV. This is measured by a receipt timestamp and the timestamp associated with “CSR Requested” message in the STI system. This SLA only applies to [...***...] of the [...***...] amount. For [...***...] volume over [...***...] this SLA does not apply to those orders.
Synchronoss will process [...***...] of these emails/faxes within [...***...] of the email receipt. This is measured by receipt timestamp on the fax/email and the timestamp associated with the next status in the STI system. This SLA only applies to [...***...] of the [...***...] amount. For [...***...] volume over [...***...] this SLA does not apply to those orders.
*** Confidential Treatment Requested 25
These credits do not apply if the delay is caused by a carrier system problem. [...***...] credit off of the Transaction fee for CSRs not sent to LSP/CLEC within [...***...] .
[...***...] credit off of the Transaction fee for CSRs not sent to LSP/CLEC within [...***...] .
[...***...] credit off of the Transaction fee for CSRs not sent to LSP/CLEC within [...***...] . These credits are not cumulative, so each Order can only receive a maximum credit of [...***...] . [...***...] credit off of the Transaction fee for CSRs not returned to Customer within [...***...] of receipt by STI.
[...***...] credit off of the Transaction fee for CSRs not returned within
[...***...] of receipt by STI. [...***...] credit off of the Transaction fee for CSRs not returned to Customer within [...***...] of receipt by STI These credits are not cumulative, so each Order can only receive a maximum credit of [...***...] .
26
SLA Category
3.) The time for Synchronoss to process the remaining 10% of the manual CSRs using a LSPs /CLEC GUI
Response
This is the period of time from when STI receives the 3PV message, processes the CSR and either creates a ticket in RT to notify customer of potential porting errors, or populate the NPS Process Log
Synchronoss will process the remaining orders [...***...] , within [...***...] of receipt from 3PV. This is measured by receipt timestamp and the timestamp associated with events in the STI system. This SLA only applies to [...***...] of the [...***...] amount. For [...***...] volume over [...***...] this SLA does not apply to those orders.
Credit
[...***...] credit off of the Transaction fee for CSRs not returned to Customer within [...***...] .
[...***...] credit off of the Transaction fee for CSRs not returned within
[...***...] . [...***...] credit off of the Transaction fee for CSRs not returned to Customer within [...***...] These credits are not cumulative, so each Order can only receive a maximum credit of [...***...] .
4a.) The time for Synchronoss to process the remaining 10% of orders not completed in 2a.
4b.) The time for STI to process the response to an email/fax CSR response from an LSP or CLEC
This is the period of time from when STI receives the 3PV message, sends the CSR request via email or fax to the LSP/CLEC.
This is the period of time from when STI receives the email back from the LSP / CLEC and either creates a ticket in RT to notify customer of porting issues, or populate the NPS Process Log
Synchronoss will process the remaining orders for CSR requests [...***...] within [...***...] of receipt from 3PV. This is measured by receipt timestamp and the timestamp associated with “CSR Requested” message in the STI system. This SLA only applies to [...***...] of the [...***...] amount. For [...***...] volume over [...***...] this SLA does not apply to those orders.
Synchronoss will process the remaining [...***...] of the responses received via email/fax within [...***...] of receipt from the LSP/ CLEC. This is measured by receipt timestamp on the email/fax and the timestamp associated with the next status in the STI system. This SLA only applies to [...***...] of the [...***...] amount. For [...***...] volume over [...***...] this SLA does not apply to those orders.
*** Confidential Treatment Requested 27
These credits do not apply if the delay is caused by a carrier system problem. [...***...] credit off of the Transaction fee for CSRs not sent to LSP/CLEC within [...***...] .
[...***...] credit off of the Transaction fee for CSRs not sent to LSP/CLEC within [...***...] .
[...***...] credit off of the Transaction fee for CSRs not sent to LSP/CLEC within [...***...] These credits are not cumulative, so each Order can only receive a maximum credit of [...***...] . [...***...] credit off of the Transaction fee for CSRs not returned to Customer within [...***...]
[...***...] credit off of the Transaction fee for CSRs not returned to Customer within [...***...]
[...***...] credit off of the Transaction fee for CSRs not returned to Customer within [...***...] These credits are not cumulative, so each Order can only receive a maximum credit of [...***...] .
CSR SLAs (This SLA becomes effective when the data can be transmitted to the customer via the Vonage Website or some other agreed upon method and STI is ebonded and certified LSPs) SLA Category
5.) Real Time CSR request & response (For LSPs/ CLECs where Synchronoss is eBonded)
Response
Measures the number of Real Time CSR requests received and processed via the Synchronoss platform within [...***...] . This is measured by the timestamp difference between time received and time sent.
Synchronoss will process [...***...] of the CSR real time requests with an automated LEC This SLA is not applicable in instances where the Real Time CSR is too large to be received via EDI.
Credit
[...***...] credit off of the Transaction fee for CSRs not returned to Customer within [...***...]
[...***...] credit off of the Transaction fee for CSRs not returned within
[...***...] . [...***...] credit off of the Transaction fee for CSRs not returned to Customer within [...***...] These credits are not cumulative, so each Order can only receive a maximum credit of [...***...] . These credits do not apply if the delay is caused by a carrier system problem.
*** Confidential Treatment Requested 28
FOC/DL SLAs
(This SLA becomes effective when STI’s Gateway is porting on behalf of Vonage’s NSPs. This is measured from the time the order is received by the STI gateway and sent to the ebonded LSP / LSP) (End state SLA)
SLA Category
6.) Porting Order/DL request & response (For Trading Partners where Synchronoss is eBonded with the trading partner)
Response
Measure of porting request and DL requests that have received a valid response within a given timeframe
Synchronoss agrees for trading partners that Synchronoss is eBonded with that Vonage will receive [...***...] of the non complex, error free, porting Orders and DL requests with a FOC date or message within [...***...] . Synchronoss agrees for trading partners that Synchronoss is eBonded with that Vonage will receive complex, error free, porting Orders and DL requests with a FOC date or message according to an SLA table that Synchronoss will provide on a regular basis.
7.) Porting Order/DL request & response (For Trading Partners where Synchronoss is not eBonded with)
Measure of porting and DL requests that have received a valid response within a given timeframe
Synchronoss agrees for trading partners that Synchronoss is not eBonded with that Vonage will receive [...***...] of the error free, non complex, porting Orders and DL requests with a FOC or message
Credit
[...***...] credit off of the Transaction fee for orders with a response not returned to Customer according to the SLR Table.
[...***...] credit off of the Transaction fee for orders with a response not returned to Customer according to the SLA Table [ ...***...] .
[...***...] credit off of the Transaction fee for orders with a response not returned to Customer according to the SLA Table [...***...] These credits are not cumulative, so each Order can only receive a maximum credit of [...***...] . [...***...] credit off of the Transaction fee for Orders with a response not returned to Customer according to the SLA Table.
[...***...] credit off of the Transaction fee for Orders with a response not returned to Customer according to the SLA Table [...***...] .
[...***...] credit off of the Transaction according to an SLA table that Synchronoss will provide on a regular basis. (Monday thru Friday). Synchronoss agrees for trading partners that Synchronoss is not eBonded with that Vonage will receive [...***...] of the error free, complex, porting Orders and DL requests with a FOC or message according to an SLA table that Synchronoss will provide on a regular basis. *** Confidential Treatment Requested 29
fee for Orders with a response not returned to Customer according to the SLA Table
[...***...] These credits are not cumulative, so each Order can only receive a maximum credit of [...***...] .
8.) Exception Order request FOC Date
Measure of exception request response with a FOC Date
Synchronoss will agree that [...***...] of all non complex exception Orders from an ebonded trading partner will be resolved and a FOC Date returned to Vonage within [...***...] . For complex exception Orders and no-complex orders from a non ebonded trading partner the error will be resolved and a FOC Date returned to Vonage according to an SLA table that Synchronoss will provide on a regular basis.
*** Confidential Treatment Requested 30
[...***...] credit off of the Transaction fee for Orders with a response not returned to Customer according to the SLA Table.
[...***...] credit off of the Transaction fee for Orders with a response not returned to Customer according to the SLA Table [...***...] .
[...***...] credit off of the Transaction fee for Orders with a response not returned to Customer according to the SLA Table [...***...] These credits are not cumulative, so each Order can only receive a maximum credit of [...***...] .
Activation SLAs
(This SLA is for orders where STI is doing the activation on Vonage Orders ported on behalf of Vonage’s NSPs)
SLA Category
9.) Porting Activation Request
10.) Porting Activation Exceptions
Response
Measure of activation response
Measure of exception request response
Synchronoss will agree that [...***...] of the non complex porting requests received from Vonage will be delivered to the NPAC in less than [...***...] . Complex porting requests received from Vonage will be delivered to the NPAC according to an SLA table that Synchronoss will provide on a regular basis. This SLA does not apply during NPAC maintenance periods Synchronoss will agree that [...***...] of the non complex porting activation exceptions will be resolved with an activation within [...***...] . Complex porting activation exceptions will be resolved with an activation according to an SLA table that Synchronoss will provide on a regular basis. This SLA does not apply during NPAC maintenance periods
*** Confidential Treatment Requested 31
Remedy
[...***...] credit off of the Transaction fee for Orders not delivered to NPAC within [...***...] . (Applies to single telephone number orders only, not batch files)
[...***...] credit off of the Transaction fee for Orders not delivered to NPAC within [...***...] .
[...***...] credit off of the Transaction fee for Orders not delivered to NPAC within [...***...] .
[...***...] credit off of the Transaction fee for Orders not delivered to NPAC within [...***...] . These credits are not cumulative, so each Order can only receive a maximum credit of [...***...] .
Porting SLA SLA Category
11.) Ebonded Carrier
12.) Non- eBonded Carriers
Response
Measures the average number of days it will take to port a TN from an Ebonded carrier.
Measures the average number of days it will take to port a TN from a non-eBonded carrier.
Synchronoss agrees that the average port interval for non complex orders with an eBonded carrier will be [...***...] days from the acceptance of a clean CSR. ** For non complex eBonded orders with DSL for Verizon East the port interval will be [...***...] days from the acceptance of a clean CSR. **
Synchronoss agrees that the average port interval for non complex orders with a noneBonded carrier will be [...***...] days from the acceptance of a clean CSR. **
Credit
[...***...] credit off of the Transaction fee for Orders not completed within
[...***...] . [...***...] credit off of the Transaction fee for Orders not completed within
[...***...] . [...***...] credit off of the Transaction fee for Orders not completed within
[...***...] . These credits are not cumulative, so each Order can only receive a maximum credit of [...***...] . [...***...] credit off of the Transaction fee for Orders not completed within [...***...] .
[...***...] credit off of the Transaction fee for Orders not completed within
[...***...] . [...***...] credit off of the Transaction fee for Orders not completed within
[...***...] . These credits are not cumulative, so each Order can only receive a maximum credit of [...***...] . ** This SLA is available when Synchronoss is porting the number on behalf of Vonage’s NSP ** These SLA’s are based on current ILEC/CLEC business rules and may need to be modified if the ILEC/CLEC business rules should change *** Confidential Treatment Requested 32
System Availability SLAB SLA Category 13.) Systems Availability
Uptime
Response Synchronoss agrees that its systems will be available [...***...] of the time per month during the daily hours of [...***...] to [...***...] Monday thru Sunday EST. This response does not include scheduled downtime.
Remedy
[...***...] credit off all Transaction fees for that month’s invoice if the systems are unavailable for a cumulative amount in excess of [...***...] and up to [...***...] in duration.
[...***...] credit off all Transaction fees for that month’s invoice if the systems are unavailable for a cumulative amount in excess of [...***...] and up to [...***...] in duration.
[...***...] credit off all Transaction fees for that month’s invoice if the systems are unavailable for a cumulative amount in excess of [...***...] in duration.
14.) Scheduled Downtime
Scheduled Downtime
Synchronoss agrees that it will not schedule down time in excess of [...***...] per month outside of the above timeframes.
15.) Network Connectivity
Measures the up time of the telco network Synchronoss uses to send and receive data.
Synchronoss agrees that that its telco network will be available [...***...] of the time.
16.) Application Server(s)
Uptime
Synchronoss agrees that an application server will be available [...***...] of the time per month during the daily hours of [...***...] to [...***...] Monday thru Sunday EST. This response does not include scheduled downtime.
*** Confidential Treatment Requested 33
These credits are cumulative, so that each month’s invoice can receive a maximum credit of [...***...] . [...***...] credit off of all Transaction fees for that month’s invoice for each event of scheduled downtime beyond the first [...***...] in duration. This remedy is capped at [...***...] . 0.5% credit off of all Transaction fees for that month’s invoice for each event of scheduled downtime beyond the first [...***...] in duration. This remedy is capped at [...***...] . [...***...] credit off of all Transaction fees for that month’s invoice for each event of scheduled downtime beyond the first [...***...] in duration. This remedy is capped at [...***...] .
Synchronoss shall provide Customer with monthly reports detailing its compliance or noncompliance with the SLAs set forth above, which shall include any supporting information for calculation of the credits. All credits due to Customer pursuant to these SLAs shall be reflected on the same invoice as the Transactions fees to which they relate.
• •
Vonage will supply Synchronoss with a 1 month notification, in regards to any major promotional campaigns (print or multimedia) being launched that could potentially increase the projected volumes of Orders. Synchronoss Technologies has a Business Continuity Plan, which encompasses STI’s DR plan and is available upon request from Vonage. 34
Attachment 2 Order Fee Schedule Matrix (See attached matrix) PortIn
Scenario
1 2
3 4 5 6 7 8 9 10
Vonage Port In number from another carrier Vonage requests directory listing on a Port In Order from another Carrier on the same Port In Order via mechanized interface Vonage requests a directory listing on a Port In number after Vonage has Ported the Number Another carrier requests to Port a number from Vonage Vonage requests a Port In number to be disconnected and remove listings On a Port In Order Vonage provides Synchronoss a FOC change before 2pm eastern time. On a Port In Order Vonage provides Synchronoss a FOC change after 2pm eastern time. A Port Out Order requires a change of DD after 2pm eastern time. A customer changes a FOC more than 3 times on a LNP order A Port In or Port Out Order is canceled before the subscription is made at the
Port Out
Disconnect
Cancel
Change DD
Incomplete
DL
* *
* * * * *
* *
*
*
* *
35
11 12 13 14 15
16
17 18
19
NPAC A Port In Order is canceled after a subscription is made with the N PAC A Port Out Order is canceled after a subscription is made with the NPAC A customer wants to change a listing on a LNP Order after it has been ported A customer wants to list a Vonage telephone number An Order starts the porting process and then remains inactive for 45 calendar days without being subscribed at the NPAC A Disconnect Order is updated with a DD or data change before the agreed upon cut off time on the day of the DD A Disconnect Order is canceled before it is subscribed with at the NPAC A carrier requests to Port Out a number and during the process Vonage wins back the customer before a NPAC subscription has been created A carrier requests to Port Out a number and during the process Vonage wins back the customer but a NPAC subscription has been created
* * * * *
*
* *
*
36
Report Examples Daily Report Mon Apr 11
page 1 DAILY REPORT
Run Date 11-APR-2005 07:00:00 Orders Received in Current Bill Period Type Order
LNP
Day
Total
04-01-05 04-02-05 04-03-05 04-04-05 04-05-05 04-06-05 04-07-05 04-08-05 04-09-05 04-10-05
**************** Sub-Total
xxxxx
Total
xxxxx 37
Year Month Week Ending
(All) (41) (All)
Total New Orders Received Date
Order Type LSP_Name
4/7/2005
LNP
Verizon East Bell South SBC/PacBell/Snet/Ameritech (blank) Qwest Verizon West Comcast/ATT Broadband Cox Focal Teleport Communications XO Communications Central Telephone Co Cablevision Knology Broadview Cincinnati Bell KMC Telecom Florida Digital Ntwk MU Metro ATS MPower Comm Paetec Choice One RCN Altel/Sugarland Sprint Starpower Communications Citizens United Telephone Co.(Sprint) Allegiance Telcom Cavalier Conversent Comm Alltel
[...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...]
4/7/2005 Total
DL
Grand Total
[...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...] [...***...]
This report shows the daily activity. In addition, it allows for manipulation for year to date and separation by carrier. A second tab associated with the report shows all cancels and completes. *** Confidential Treatment Requested 38
39
[letterhead with top & right border] [logo] Vonage e911 Gateway and Error management support Statement of Work Date: 03/16/2006 Proprietary Information Not to be disclosed without written permission from Synchronoss Technologies, Inc.
TABLE OF CONTENTS 1.0
STATEMENT OF WORK
3
2.0
STATEMENT OF WORK (“SOW”) OVERVIEW
3
2.1
BUSINESS OVERVIEW AND OBJECTIVES
3
3.0
DEFINITIONS
3
4.0
PROJECT SCOPE
6
4.1 4.2 4.3 4.4 5.0 5.1 5.2 5.3 5.4 6.0 6.1 7.0 7.1 7.2
OVERVIEW SERVICES TO BE PROVIDED REPORTING DELIVERABLES PROJECT RESPONSIBILITIES, ASSUMPTIONS AND METRICS SYNCHRONOSS RESPONSIBILITIES CUSTOMER’S RESPONSIBILITIES PROJECT ASSUMPTIONS PERFORMANCE METRICS CRITICAL MILESTONES IMPLEMENTATION PHASE COMPENSATION PRICING KEY PRICING ASSUMPTIONS
6 6 7 7 8 8 9 9 10 10 10 11 11 11
8.0
INTELLECTUAL PROPERTY INVENTORY
12
9.0
TERM AND TERMINATION
13
10.0
PROJECT LEADS
14
11.0
ACCEPTANCE OF STATEMENT OF WORK
14
SCHEDULE B – SLAS
17
ATTACHMENT C
20
ATTACHMENT D
21
1.0 Statement of Work This Statement of Work is entered into with Vonage Network Inc., a Delaware corporation (“Vonage” or “Customer”) with a principal place of business at 23 Main Street, Holmdel, New Jersey and Synchronoss Technologies, Inc. a Delaware corporation with a principal place of business at 750 Route 202 South, Suite 600, Bridgewater, NJ 08807, (“Synchronoss”) pursuant to the Master Services Agreement between the parties, dated as of May 5, 2005 (the “Services Agreement”). This Statement of Work shall have no effect, separate and apart from the Services Agreement, and all capitalized terms used herein without definition will have the same meanings as specified therefore in the Services Agreement. 2.0 Statement of Work (“SOW”) Overview 2.1 Business Overview and Objectives This SOW supports the development of the e911 Error correction gateway, as well as e911 manual Error support for those addresses that can not be verified and completed during the automated process. Synchronoss will provide an outsourced platform to be utilized by Synchronoss agents to work the e911 Error. 3.0 Definitions Word
Definition
ActivationNow®
Synchronoss’ proprietary platform, which Synchronoss uses internally to integrate the process components critical to complex voice, data and IP service fulfillment. An Order to cancel a pending transaction at any time before completion or before the Order is declared incomplete. Vonage’s internal Customer Care Application that manages various internal workflow. Connected via a mechanized interface using CORBA or XML The final user of a service provided by Vonage or a Telephone Service provider An address on a Vonage Order that does not match the TCS database An order where an SLA is not met When Orders do not flow through the systems and require manual intervention to complete the Order process. The date the Donor Carrier has confirmed the Port will take place.
Cancel Order CA Ebonded End User Error Exception Order Fallout FOC Date 3/24/2006
© 2006 Synchronoss Technologies Inc. 3
Incomplete Order IXC LD LEC LERG LIDB LNP LOA LSP LSR Manual CSR Lookup Non-Ebonded Not Resolved NSP Order Production Production Period RT SME
An incomplete order that has had no activity for 45 days and a subscription has not been done at the NPAC. Inter-Exchange Carrier provides telephone service between service exchanges Long Distance is a service provided by different companies to process calls outside an end users local calling area Local Exchange Carrier provides local telephone service to end users Local Exchange Routing Guide which lists all North American Class 5 Offices and describes their relationship to Class 4 offices Line Information Database containing all valid telephone and calling card card numbers in the relevant region, and has the necessary information to perform billing validation Local Number Portability is the process of moving a donor carriers telephone number to a new carrier Letter of Authorization provides the new telecommunications provider with permission to act on behalf of a customer The local telephone company currently providing service to the subscriber Local Service Request is a form used to process porting requests with the carriers A non eBonded CSR lookup is completed with carriers to which Synchronoss is not connected to via a mechanized interface All other methods of connectivity between two companies, including E-fax and using the LSPs / LSPs GUI Orders that STI worked measured by change of status but was not able to complete due to issues outside of STI’s control. Network Service Provider refers to the companies Vonage uses to provide their last mile telephone service connectivity, numbers and connectivity A e911 Error order received by STI to work. Application is working in outside of a test environment The 24months following the implementation period and beginning with the first successful e911 Error Order processed. Response Tracking is the system utilized by Vonage customer care to track end user email communications Subject Matter Expert is someone knowledgeable in a specific area 4
SPOC SSL Standard Reports Status Codes Subscriber TCS
Single Point of Contact is the key individual within a company assigned to handle the internal coordination needed between departments to work with an outside vendor Secure Socket Layer used for secure data transmitting Reports that are designed and delivered on a recurring schedule that provide Order status and SLA status. Codes that explain the status of an Order during the processing of an Order. A Vonage Customer TeleCommunication Systems, the 911 provider for Vonage services. 5
4.0 Project Scope 4.1 Overview To develop the e911 Error correction gateway, as well as manage all of the e911 Error for Vonage, Synchronoss shall support the following activities:
•
Synchronoss will receive all of the Vonage e911 Error transactions thru a tool that Synchronoss shall develop and provide access to Vonage and pass to TCS for correction validation. Prior to the development of the Synchronoss tool, Vonage shall send its e911 Error transactions to Synchronoss by uploading the errors to the Vonage RT System which Synchronoss shall access via a virtual private network and a password and id assigned by Vonage.
•
Synchronoss will verify the customer supplied address with the TCS database and pass the appropriate information back to Vonage.
•
Synchronoss will manage the e911 Error and contact the customer where necessary, via a phone call and/or email, to verify their information and gather the correct information for the Vonage billing database.
•
Synchronoss will provide standard reporting to Vonage to show the performance of the e911 Error correction program.
4.2 Services to be provided To meet Vonage’s e911 Error correction gateway processing requirements, Synchronoss shall provide the following Set-Up and Configuration services (collectively “Services”):
• • • • • • • •
Configuration of and access to the Synchronoss ActivationNow® platform for e911 Error correction and workflow management Hosted hardware Full tier 1 to 3 tech support for ActivationNow® Fully redundant systems Access to Web-based Order status and reporting interface Data collection and reporting Generate Status Codes and data streams to provide Vonage with an update of all e911 transaction that flow thru the gateway Maintain and update systems and programs 6
In order to process each e911 transaction, Synchronoss shall host the ActivationNow® platform at its site and provide the following functions:
• • • •
Receive all e911 Error transactions from Vonage via a format to be determined by both parties and management of these transactions Synchronoss will manage all e911 Error transactions in a Synchronoss Care Center. Work-list functionality to manage all of the e911 Error transactions between Vonage and TCS. Generate Reports, as specified in Section 4.3 below and deliver as discussed between Synchronoss and Vonage.
4.3 Reporting During the eight-week development of the detailed system requirements, Synchronoss and Vonage will discuss and agree upon 3 Standard Reports. Additional reports are available at additional ad-hoc rates. 4.4 Deliverables Deliverables for these Services are the three (3) Standard Reports described in Section 4.3. 7
5.0 Project Responsibilities, Assumptions and Metrics 5.1 Synchronoss Responsibilities
•
The Synchronoss Project Manager shall coordinate, plan, organize, control, integrate and manage the completion of all project initiatives according to sound project management principles.
•
The Synchronoss Project Manager has overall project implementation responsibility and accountability for implementing the ActivationNow® platform pieces for the e911 Error transaction.
•
Synchronoss will provide mock reports for SLA compliance four weeks after final contract signature between Synchronoss and Vonage. The parties shall discuss the provided format and agree upon a format for future reports.
•
Synchronoss will make the SLA compliance reports available to Vonage 8 weeks following final contract signature between Synchronoss and Vonage.
•
Synchronoss that Interface with the Vonage SPOC for any project issues.
•
Synchronoss shat participate in all relevant Vonage e911 project meetings.
•
Synchronoss shat, provide a SPOC for Vonage.
•
Synchronoss shall maintain confidentiality and abide by Vonage e911 policies, privacy policy and, when on Vonage site(s), security polices and procedures.
•
Synchronoss shall document business requirements necessary to meet the objectives of this SOW and provide such documentation to Vonage.
•
Synchronoss shall provide all necessary resources to perform tasks outlined in this SOW.
•
Synchronoss shall provide system release schedules, updated requirements and maintenance schedules as mutually agreed by the parties.
•
See Attachment C for the E911 Error correction process.
•
Synchronoss will utilize the Change Management form (see Attachment D) to notify Vonage of any potential opportunities for improvements.
•
Synchronoss shall not use Vonage’s name, logos, service marks, trademarks and/or trade dress without Vonage’s prior written consent. 8
5.2 Customer’s Responsibilities In connection with this SOW, the Customer shall perform the following functions:
•
Customer shall assign a SPOC to coordinate and manage all internal Customer activities to support the project schedule for Vonage’s internal updates.
•
Upon reasonable notice from Synchronoss, Vonage shall make available SMEs to work with Synchronoss on a real-time basis as required.
•
Vonage will be notified via an error message from TCS that the address has not passed verification and will then pass those addresses to Synchronoss to work.
•
Vonage shall provide access to all data and systems necessary to support project timelines and objectives.
•
The Vonage SPOC will designate and invite the appropriate attendees to participate in weekly (or other mutually agreed to time period) project status meetings.
•
While in production, the Customer shall provide a SPOC and escalation process for all systems and processes outside of Synchronoss’ control.
•
The Customer or their designated e911 Vendor shall provide Synchronoss with on going system release schedules and coordinate activities.
•
Vonage will utilize the Change Management form (see Attachment D) to notify Synchronoss of any potential opportunities for improvements.
•
During and after the term of this Statement of Work, Customer agrees to (i) defend Synchronoss against any claim by a third party that results from or arises out of any Customer Information provided by Customer and (ii) indemnify Synchronoss for settlement amounts and damages, liabilities, penalties, costs and expenses (including reasonable attorneys’ fees) finally awarded and arising out of such claim; provided, that the foregoing shall not apply to the extent of Synchronoss’ gross negligence or willful misconduct in performing the Services related to such claim
•
Vonage shall not use Synchronoss’ name, logos, service marks, trademarks and/or trade dress without Synchronoss’ prior written consent
5.3 Project Assumptions
•
Both parties will agree and sign off on the acceptance of their understanding of the detailed Synchronoss proprietary requirements documentation.
•
Target functionality is to support the flow through of all Vonage e911 Error transactions.
•
Synchronoss will provide Customer with a SPOC for this project in addition to an escalation process and contact list.
•
Customer will provide Synchronoss with a SPOC for this project in addition to an escalation process and contact list.
•
Customer will provide technical SME for data integration process. 9
•
Data encryption is SSL or other alternative method agreed to by parties.
•
Project status meetings will occur weekly (or other mutually agreed to time period) via teleconferencing or in person.
•
Customer resources will be available and committed to a schedule for analysis, review and clarification and project related issues.
•
Customer and / or Synchronoss will resolve all outstanding issues related to the project that is the subject of this SOW within a reasonable time period not to exceed four (4) weeks after the execution of this SOW by both parties.
•
Customer agrees that in performing the Services Synchronoss (i) will use and rely primarily on the Customer Information and (ii) does not assume any responsibility for the accuracy or completeness of any Customer Information, and will not undertake to verify its accuracy or completeness. By way of illustration and not limitation, Synchronoss will rely on the address and telephone number from Vonage to perform error correction work and Synchronoss will rely on the TCS database as the 911 official database of record.
5.4 Performance Metrics Please see attached Schedule B for SLAs. 6.0 Critical Milestones 6.1 Implementation Phase The Implementation Phase will begin on February 6, 2006 and be completed on April 3, 2006. A detailed project plan will be created upon contract signing. The Plan will include the following:
• • • • • •
Requirements Development Database setup Unit Testing Integration Testing Launch 10
7.0 Compensation 7.1 Pricing Refer to Schedule A. 7.2 Key Pricing Assumptions
•
Synchronoss shall invoice the Customer on the first of every month for the preceding month’s transactions.
•
Travel and living expenses (i.e. airfare, hotel, car, meal, phone) associated with project activities will be pre-approved by Vonage in writing and billed back to Vonage at cost. Vonage shall have no obligation to reimburse Synchronoss for any travel or living expenses that Vonage has not pre-approved.
•
Vonage will incur a cost for all API updates and maintenance involving the connection between Synchronoss and TCS in order to keep the e911 Error Correction Gateway current with latest TCS API.
•
All telecommunications and bandwidth costs between Vonage and Synchronoss, or Vonage’s channel partners/customers and Synchronoss, will be paid by Vonage at its expense. To the extent possible, Synchronoss shall use Vonage service on accounts Vonage shall provide Synchronoss exclusively for this purpose.
•
If an order is processed from “initial” status to another state in the STI Error Correction Gateway) and a customer cancels their Vonage order, Synchronoss will bill Vonage for the error correction.
•
If the order status has not changed from the “initial” status and customer cancels the order Synchronoss will not charge Vonage for the error correction. 11
8.0 Intellectual Property Inventory All software, hardware, know-how, processes and other information, as well as all modifications, fixes and upgrades to same, that are described in this Section 8.0 or that are otherwise used in connection with performing the Services shall not be deemed to be Deliverables as such term is used in the Services Agreement. Synchronoss Intellectual Property for this project consists of ActivationNow® and its components including without limitation the following:
• • • •
Electronic Order Gateway that is used to receive both LNP and non LNP Orders from the Customer and provide status back to the Customer using Synchronoss defined messages. Work Flow Manager, which is used to process Orders. Web Based User Interface used to view and manage Orders. A reporting GUI used to show Customer standard reports and status.
If necessary to access the Service provided under this Statement of Work, then during the term of this Statement of Work and subject to all terms and conditions in the Agreement, Synchronoss grants Customer a nonexclusive, nontransferable license to use the applicable components of the Synchronoss Intellectual Property (via the interface that Synchronoss makes available to Customer) solely in connection with accessing the Service for Customer’s internal business purposes. Except for the limited rights and licenses expressly granted under this Section 9.1 concerning the Synchronoss Intellectual Property, Customer receives no right or license to possess or use any of the foregoing, no other use is permitted and Synchronoss (and its licensors) shall retain all right, title and interest therein and thereto. 12
9.0 Term and Termination 9.1.1 Term of Statement of Work The term of this SOW is from February 6, 2006 and will continue for 12 months following the processing of the first e911 Error order. Any time during the implementation or at the conclusion of this SOW, the Customer may extend this project or increase the scope. In such event, the parties will negotiate in good faith an amendment to this SOW with the revised scope, deliverables, and associated pricing, Unless terminated by either party, the project will automatically continue for successive 12 month periods under the terms of this agreement. At lease sixty (60) days prior to any automatic renewal, Synchronoss shall notify Customer of the impending renewal. 9.1.2 Termination for Convenience Customer shall notify Synchronoss with a minimum of [...***...] advanced notice in writing, of Customer’s intention to terminate this SOW for convenience, during which period, Synchronoss shall continue to provide services in connection with this SOW. *** Confidential Treatment Requested 13
10.0 Project Leads Vonage Network Inc. Name: Synchronoss Technologies, Inc. Name: Anthony Socci 11.0 Acceptance of Statement of Work Vonage Network Inc. Signed Title
/s/
Date 30 March 2006
President
Synchronoss Technologies, Inc. Signed Title
/s/
Date
VP Service Delivery 14
3/16/06
Schedule A 1.0 Connect Fee Connect fee of [...***...]. This fee will be invoiced in two installments half on the date of signature of this agreement and the remaining half after implementation of the e911 error correction gateway. This fee is for services and expenses associated with establishment of the e911 Error correction gateway. 2.0 Transaction Pricing Synchronoss will charge Vonage [...***...] per error over an 8 week build and implementation time frame. Following the 8-week delivery timeframe and Vonage’s acceptance of Sychronoss work, the cost per error correction will fall to [...***...] per error with no accompanying gateway charge to Vonage. The [...***...] Error price includes working the error and up to [...***...] outbound phone calls for the total population of Vonage e911 Errors per month. Above and beyond the [...***...] outbound calls will be charged at an additional [...***...] per outbound call. *** Confidential Treatment Requested 15
3.0 Pricing Terms and Special Provisions On the 1st of each Production Period month, Vonage will transmit to Synchronoss a forecast of the total number of e911 Error orders expected for the subsequent month, as well as a rolling estimate of the total number of e911 Error orders expected for the subsequent 60 days. 3.1.1 Monthly Forecast for Production months 1 – 12 a.) If the actual number of Orders exceeds [...***...] of the Vonage forecast, at Vonage’s discretion, Synchronoss shall either: 1.1.1
Apply best efforts to the orders above [...***...] and not be bound to the conditions provided in Schedule B for SLAs.
1.1.2
Negotiate a premium payment to manage excess Order volumes over the [...***...] forecast with no effect on the Schedule B SLAs.
Vonage will be required to provide Synchronoss with a transaction volume forecast for the first 2 months following contract signature, but will not be held to the forecast. At the end of the first 2 months, Vonage will be required to provide Synchronoss with a committed forecast and a 60 day estimate and if the actual number of e911 Error orders is less than 85% of the Vonage forecast, Vonage will be invoiced an amount equal to 85% of the hard forecast supplied for that month. *** Confidential Treatment Requested 16
Schedule B – SLAs The SLA Table attached hereto as Schedule B will be updated as needed by mutual agreement. 17
Error Correction SLAs
(SLA’s are in effect after system implementation)
SLA Category
Description
Remedy
1.) The processing time for Synchronoss to work an error correction out of the initial errors status.
Synchronoss will work [...***...] of the error corrections within [...***...]. This is measured by receipt timestamp and the change of status from initial to the next appropriate status.
The difference of actual orders worked and [...***...] of orders received will receive a [...***...] discount on each order’s transaction price.
2.) The processing time for Synchronoss to work an error correction out of the initial errors status.
Synchronoss will work the remaining [...***...] of the error corrections within [...***...]. This is measured by receipt timestamp and the change of status from initial to the next appropriate status.
The difference of actual orders worked within [...***...] and [...***...] of orders received will receive an additional [...***...] discount on each order’s transaction price.
3.) The processing time for Synchronoss to complete and error correction after receipt from Vonage.
Synchronoss will complete [...***...] of the error corrections within [...***...]. This is measured by receipt timestamp and the completion status timestamp.
The difference of actual orders completed within [...***...] and [...***...] of the orders received in a [...***...] period will receive an additional [...***...] discount on each order’s transaction price.
At no time should the backlog float exceed [...***...] of all orders. If any individual day greater than [...***...] of the [...***...] forecasted average transaction volume, then this SLA does not apply.
No one order can receive more than a [...***...] discount.
Errors that fall into a Not Resolved status are exempt from this SLA. A Not Resolved error correction status is defined in Attachment C of this Document.
•
Synchronoss shall provide Vonage with monthly reports detailing its compliance or noncompliance with the SLAs set forth above, which shall include any supporting information for calculation of the credits.
•
All SLA’s are waived during scheduled maintenance windows, as well as non scheduled downtimes of the TCS and Vonage’s applications.
•
All credits due to Vonage pursuant to these SLAs shall be reflected on the same invoice as the Transactions fees to which they relate.
*** Confidential Treatment Requested. 18
•
Vonage will supply Synchronoss with 1 month notification, in regards to any major promotional campaigns (print or multimedia) being launched that could potentially increase the projected volumes of e911 transactions. 19
Attachment C e911 Address Correction Process Processing Steps: After each step, resubmit address to TCS for validation; if address does not validate, proceed to the next step. 1. 2. 3. 4.
Attempt to correct address with known correction methods. Examples of correction methods include: a. Standardizing address formats b. Correcting misspellings of address information Attempt to validate address using the TCS/Kivera and/or USPS websites. Attempt to contact customer via phone to determine correct e911 address. Attempt to contact customer via email to determine correct e911 address.
Customer Contact Assumptions: 1. Synchronoss will attempt to call customer up to [...***...] times in a [...***...] day period. Each time the customer does not answer, STI will leave a message with a callback number. 2. Synchronoss will attempt to email customer via the Vonage RT system one time. E911 Addresses that Cannot Be Resolved: These are situations where the customer’s e911 address will not be able to be corrected and resolved with TCS. 1. Customer states that the place of residence (or place of use of Vonage service) is not in the US or Canada 2. APO addresses cannot be validated. 3. Customer may refuse e911 service 4. Customer may not respond to phone and email contacts 5. PO Boxes cannot be validated 6. Rural Route (RR) mailing addresses cannot be validated 7. Some new street addresses/developments cannot be validated 8. Some addresses will be valid in USPS, but they are not valid in TCS, hence making the address not resolved. *** Confidential Treatment Requested 20
Attachment D CHANGE ORDER FORM Describe services or changes requested (attach additional pages if necessary) 1. Change Order requested by: Vonage
Synchronoss
Name Authorized Signature
Date
2. Modifications, clarifications or supplements to description of services in the scope of the Statement of Work, if any (attach additional pages if necessary). 3. Assignment of additional employees and resources (attach additional pages if necessary). 4. Impact on price, delivery schedule, payment schedule and scope of services (attach additional pages if necessary). Acceptance or Rejection SYNCHRONOSS By: Name: Title: Accepted:
Date: Rejected:
VONAGE By: Name: Title: Accepted:
Date: Rejected: 21
Addendum A In conjunction with the Vonage Gateway and Error Management Support SOW, Synchronoss will perform triage on a total of approximately fifty thousand [...***...] [...***...] back-log orders. These orders will be posted to the RT [...***...] queue and will be worked via the process described within the Vonage Gateway and Error Management Support SOW and accompanying attachments. The pricing for the [...***...] back-log orders is [...***...] per fallout worked, as stated in the SOW. *** Confidential Treatment Requested 22
EARLY START AGREEMENT This Early Start Agreement (“Early Start Agreement”) is entered into on March 21, 2005 (the “Effective Date”), by and between: SYNCHRONOSS TECHNOLOGIES, INC. , a company organized and existing under the laws of Delaware, USA, having its registered office at 750 Route 202 South, Bridgewater, New Jersey, 08807, USA (hereinafter referred to as “Synchronoss”) and VONAGE NETWORK INC. a company organized and existing under the laws of Delaware, having its registered office at 2417 Route 27, Edison, New Jersey 08817 (hereinafter referred to as (“Vonage”). Each of the above is hereinafter also referred to individually as a “Party” and collectively as the “Parties”. 1
Recitals
Synchronoss provides outsourced local number portability (“LNP”) services and desires to provide such services to Vonage. Vonage wishes to engage Synchronoss’ services to port its customers’ telephone numbers to and from alternate carriers. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants, agreements, representations and warranties hereinafter set forth and for other good and valuable consideration, the parties hereto agree as follows: 2
Background
2.1
The Parties are in the process of negotiating a formal robust agreement for Synchronoss’ provision of LNP services to Vonage (the “Definitive Agreement”).
2.2
Synchronoss is available to commence the kickoff of the relationship immediately, and commencing the actual LNP services commencing on the Effective Date.
2.3
The purpose of this Agreement is to allow the parties to immediately commence the LNP services while the parties are simultaneously negotiating the Definitive Agreement.
2.4
This Agreement sets out the terms and conditions that shall apply with respect to the performed services until the Definitive Agreement is executed, or the relationship is terminated as provided herein.
2.5
This Agreement shall not allow for Synchronoss to perform services beyond May 3, 2005. The parties may agree to an extension(s) provided that the agreement is memorialized in a writing signed by both which states specifically what additional time frame and the additional fees which are authorized. 1
3
The Early Start Services
3.1
Synchronoss shall perform the following services (the “ Services ”):
•
3.2 4 4.1 4.1.1 4.1.2
Provide professional services to mechanize the management of Vonage’s LNP process, and plan for the transition of Vonage’s LNP operations to Synchronoss, as more particularly described in Exhibits A and B attached hereto, and on the timeframe contained in Exhibit B. The planning and organization necessary to deploy the Services shall commence immediately upon execution of this Agreement. Fees and Charges Vonage shall pay to Synchronoss a fee in the amount of [...***...] for services and expenses incurred from the Effective Date of March 21, 2005 through May 3, 2005 (“Professional Services Fee”), payable as follows: [...***...] upon execution of this Agreement [...***...] provided that Synchronoss has performed its obligations as stated in of this Agreement without commercially reasonable objection by Vonage.
4.2
The Professional Services Fee will be invoiced on the Effective Date of this Agreement.
4.3
If the Parties do not execute the Definitive Agreement by May 3, 2005 or Vonage has terminated the agreement prior to that date for reasons other than Section 8, Synchronoss has no obligation to continue to negotiate with Vonage and has no obligation to refund any portion of the Professional Services Fee.
4.4
Provided that this agreement has not been terminated pursuant to Section 8 and the Parties do not execute a Definitive Agreement by May 3, 2005 Vonage shall pay an additional break-up fee to Synchronoss in the amount of [...***...] (the “Break-Up Fee”). Such payment will be made within ten (10) days of the termination of this agreement.
4.5
If Synchronoss and Vonage have not entered into the Definitive Agreement by May 3, 2005, 2005, this Agreement shall automatically terminate and any unpaid fees pursuant to Section 4.3 and Section 4.4 will be due immediately.
5
Representations, Warranties and Limitation of Liability
5.1
Synchronoss represents and warrants that it (a) has the ability to pull Customer Service Records; (b) has the ability to provision Local Service Requests from local exchange carrier’s (LECs) using the ActivationNow™ platform (described in Exhibit A); (c) has the ability to provide LNP fallout management; (d) has the ability to subscribe ports to the number portability administration center (NPAC) using the ActivationNow™ platform (described in Exhibit A); and (e) will perform the Services in a professional manner.
5.2
Each party shall indemnify the other for any third party claims of intellectual property
***
Confidential Treatment Requested
2
infringement based on items provided by it to the other party. Synchronoss DOES NOT MAKE ANY OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE WORK AND THE RESULT THEREOF, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 5.3
6
Limitation of Liability . EXCEPT FOR OBLIGATIONS OF INDEMNIFICATION FOR INTELLECTUAL PROPERTY CLAIMS, PROTECTION OF CONFIDENTIAL INFORMATION AND THE SECURITY OBLIGATIONS, SINCE LIABILITY FOR SUCH OBLIGATIONS ARE NOT LIMITED, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES OF ANY KIND, OR INCREASED COST OF OPERATIONS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND BOTH EACH PARTY’S LIABILITY SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED PER CLAIM (OR IN THE AGGREGATE DURING ANY 12-MONTH PERIOD) AN AMOUNT EQUAL TO THE TOTAL PAYMENTS MADE BY VONAGE DURING THE TERM OF THIS AGREEMENT. Confidential Information
6.1
Each party will treat as confidential and will not use, disclose or otherwise make available the business, customer, financial, marketing, technical or other data or information (“ Confidential Information ”) received by such party from the other party to any person, other than such party’s employees who need to know such information for the purposes contemplated by this Agreement and who have signed written confidentiality agreements containing terms substantially similar to those contained in this Section. Each party shall instruct such employees, to keep such information confidential by using the same care and discretion that such party uses with respect to its own confidential property and trade secrets, and in no event less than commercially reasonable care. The foregoing shall not apply to information that (a) is or becomes available in the public domain (other than as a result of a breach of this Agreement), (b) which is independently known or developed by the recipient, or (c) is made available to recipient by a third party, other than a third party which recipient knew or should have known to be legally bound to maintain the confidentiality of the information.
6.2
Security. During the Term of this Agreement Synchronoss shall employ the commercially reasonable information security policies, products and procedures to protect Vonage’s Confidential Information. Synchronoss shall comply with any information security obligations reasonably required by Vonage to protect Vonage’s Confidential Information.
6.3
These Confidentiality provisions shall survive perpetually, including after termination of this Agreement for any reason. 3
7
Intellectual Property Rights
Synchronoss shall own all rights title and interest to all intellectual property contained or embodied in the materials, software and know-how Synchronoss brings to this engagement, and the ideas, concepts and know-how Synchronoss gains from performing the Services, and all Confidential Information Synchronoss provides to Vonage. Vonage will own all rights, title and interest in the intellectual property rights with of any Confidential Information, works of authorship, methods, processes or means, provided or disclosed to Synchronoss. 8
Termination for Breach
8.1 Either Party may terminate this Agreement at any time without further financial obligation upon any breach by the other Party of any provision of this Agreement after the breaching Party has received written notice of such breach and has had a ten (10) day opportunity to cure such breach. 9 9.1 10
No Exclusivity The arrangement set forth in this Agreement is non-exclusive and this Agreement shall not prevent or prohibit Vonage from entering into similar agreements with other providers of services similar to the Services. Miscellaneous
10.1
The waiver by either party of a breach of my provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any right.
10.2
The invalidity or unenforceability of any provision of this Agreement shall not affect the enforceability of the other provisions of this Agreement, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.
10.3
Any amendment or modification to this Agreement can be effective only if reduced to writing and signed by duly authorized representatives of the parties.
10.4
Assignment . Neither this Agreement nor any right, interest or obligation hereunder may be assigned, pledged or otherwise transferred by either party without consent of the other party, which shall not be unreasonably withheld, except that either party may assign this Agreement to its Affiliate or to a successor in interest pursuant to a merger or acquisition of or by the assigning party without such consent.
10.5
The parties hereto hereby acknowledge and agree that this Agreement is being entered into during the time in which the parties are negotiating the Definitive Agreement. Therefore, on and after the effective date of the Definitive Agreement this Agreement shall be of no further force and effect and will be superseded in its entirety by the Definitive Agreement.
10.6
The parties hereto are independent contractors and nothing contained in this Agreement shall be so construed as to constitute a partnership, joint venture or agency between the parties hereto. 4
10.7
Choice of Law . THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAW PROVISIONS) OF THE STATE OF NEW JERSEY AND SHALL BENEFIT AND BE BINDING UPON THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS LITIGATION.
10.8
Venue . Any controversy or claim arising out of or relating to this contract, or the breach thereof not resolved by mediation, shall be resolved in litigation in the appropriate State or Federal District Court venued in the State of New Jersey. Both parties consent to jurisdiction and venue in such courts in New Jersey.
IN WITNESS WHEREOF, the parties, as of the date first set forth above, have caused this Agreement to be executed by their duly authorized representatives. Synchronoss Technologies Inc.
Vonage Network Inc.
By: /s/ Lawrence R. Irving Name: Lawrence R. Irving Title: CFO
By: /s/ John S. Rego Name: John S. Rego Title: CFO 5
Exhibit A Vonage / Synchronoss Technologies LOI Pricing Agreement I.
Services to be negotiated in the definitive “Agreement” include:
• • •
Transition Phase E-bonding to NPAC Number Porting • Porting of Vonage numbers for Vonage’s NSP And/Or • Provide Vonage NSP with the LSR data needed to port the number LSR fallout corrected by Synchronoss • Call customer when required FOC date notification Snap backs on day of port E-Bonding or mechanized interface to Vonage’s NSP Real Time CSR lookup Reporting and Order Status Web server integrated to Vonage Provide Due Date intervals in instances where Synchronoss controls the port process through to the Local Service Provider
• • • • • • • •
II. Under this LOI, Synchronoss will provide Vonage with the professional services described under the following headings to facilitate the deployment of Synchronoss’ LNP Managed Services solution. The fixed fee for these services is [...***...] invoiced at the time of LOI Effective date. a.)
ActivationNow™ Implementation (“Implementation”)
During the “Implementation Phase”, Synchronoss will develop detailed requirements, and begin to automate the following LNP functionality for Vonage through the ActivationNow™ platform. The following functionality implementation timelines are estimates based on discussions with Vonage to date, and will be finalized in the definitive “Agreement”.
***
•
May 15, 2005 • Pull CSR’s • Feature Flags • Populate LSRs • Status by category and state • Email notifications on flags to customers
•
June 15, 2005 • Automated LNP Website • LNP Call Center fallout • LERG / NPAC Dip
Confidential Treatment Requested 6
• • • • •
•
Pull Real time CSRs Real Time Feature Flags Post results back to web LSRs processed by NSPs Real time reporting August 15, 2005 • Fully Mechanized LNP Process from Customer to Port • NSP Options • NSP can port the number • STI can port the number for NSP
b.) LNP Operations Transition Planning (“Planning”) During the LOI “Planning Phase” Synchronoss will develop and document the detailed business and systems requirements, project plans and business processes required to support the transition of Vonage’s current LNP operation, as well as the management of Vonage’s existing LNP resources to Synchronoss. The actual transition of current LNP operations, as well as the milestones and timeframes for deployment of the LNP Managed Services Phase described in Appendix B of this LOI, will be defined in detail in the “Agreement”. The following Synchronoss resources will be dedicated and deployed on-site at Vonage’s facilities in Edison, NJ during the “Planning” phase. Program Manager Project Manager Process Engineer LNP Operations Manager LNP Center Manager LNP SME Quality Assurance Engineer This team will be complimented with other non-dedicated Synchronoss resources including: Business Analysts Systems Architects Developers Testers Additional LNP SME’s 7
Exhibit B Vonage / Synchronoss Technologies Engagement Milestones Quick Start Implementation (LOI) – Synchronoss implementation team and activities described in Appendix A, deployed on-site at Vonage to develop detailed business and systems requirements, project plans, evaluate current LNP operation, develop and document LNP business processes, begin automation and facilitate transition of current Vonage LNP operations and management of resources to Synchronoss. MSA/SOW Agreement Complete – The target date for execution of a comprehensive MSA and SOW between “the Parties”. Transition Phase — Synchronoss Account and Operations teams assume responsibility for the Management of the current Vonage LNP operation and resources. Managed Services Phase 1 – Synchronoss assumes full LNP systems and operational responsibility. The Managed Services pricing model, terms and SLA’s negotiated in the “Agreement” are applied. The following LNP functionality is implemented:
• • • • • • • •
Automated LNP Website LNP Call Center fallout LERG / NPAC Dip Pull Real time CSRs Real Time Feature Flags Post results back to web LSRs processed by NSPs Real time reporting
Mechanization Complete – The following additional LNP functionality is implemented:
• •
Fully Mechanized LNP Process from Customer to Port NSP Option • NSP can port the number • STI can port the number for NSP 8
Exhibit 10.19
OSS MASTER SERVICES AGREEMENT This OSS MASTER SERVICES AGREEMENT (“Master Services Agreement”) is entered into this 27 th day of December, 2004_(the “Effective Date”) by and between NeuStar, Inc., a Delaware corporation with a principal place of business at 46000 Center Oak Plaza, Sterling, VA, 20166 USA, and Vonage Holdings Corporation (“ Customer ”), with a principal place of business at 2147 Route 27 Edison, NJ 08817_ (individually a “ Party ” and collectively the “ Parties ”). 1. DEFINITIONS. Capitalized terms and phrases used in this Master Services Agreement shall have the meanings set forth in Schedule I. Terms that are not defined therein or in this Master Services Agreement are defined in the context in which they are used and have the meanings there stated. 2. SERVICES. NeuStar shall provide to Customer certain Operations Support Systems (“OSS”) services (“Services”) as set forth in the NeuStar OSS Clearinghouse Addendum and individual Service Agreements, Reseller Agreements executed by the Parties and appended hereto as Addenda. NeuStar will render such Services only pursuant to the terms and conditions set forth herein and contained in each Addendum, which, upon acceptance by NeuStar, will form a separate binding agreement between the Parties. Each Addenda shall incorporate by reference the terms and conditions of this Master Services Agreement. NeuStar may provide or perform any of the Services through Affiliates, subcontractors or authorized agents, provided that NeuStar remain obligated to perform its obligations hereunder. 3.
CUSTOMER RESPONSIBILITIES.
3.1. No Resale. Except when the Parties execute a Reseller Agreement, and then only as set forth therein, the Services are for use by Customer and its End Users only, and solely for Customer’s internal business purposes, and not for resale to any third party, including by way of a service bureau. 3.2. Non-Interference. Neither Customer nor its End Users, customers, suppliers, contractors, licensors or licensees shall restrict or interfere with NeuStar’s systems or the maintenance or use thereof. Upon notice, Customer shall promptly remove or cause the removal of any hazard, interference or service obstruction that may be caused by equipment, hardware, software, content or connectivity, owned by or under the control of Customer or its End Users or customers. In the event that Customer or its End Users, customers, suppliers, licensors or licensees restrict or interfere with any Service, NeuStar may upon reasonable notice, suspend, in whole or in part, until such restriction or interference is cured, performance of its obligations hereunder. 3.3. No Liens. Customer shall not, directly or indirectly, cause any NeuStar property to become subject to any mechanic’s lien, materialman’s lien, vendor’s lien or any similar lien, whether by operation of law or otherwise. If Customer becomes aware: that it has breached its obligations under this Section, it shall promptly notify NeuStar in writing, cause such lien to be discharged and released of record without cost to NeuStar, as soon as reasonably possible, and indemnify NeuStar against all Losses. 3.4. Related Costs. Except as specifically set forth in an Addendum, Customer shall have sole responsibility for the costs, expenses and deployment of any interconnection, installation and testing necessary to receive the Services. 3.5.
Network Connections. As part of this Master Services Agreement, Customer may be required to connect to NeuStar’s system.
(a) Customer may only use the network connection to NeuStar’s systems (“ Network Connection ”) for the specific lawful business purposes outlined in this Master Services Agreement, or in any applicable Service Agreements or Addenda. (b) Customer shall not use the Network Connection or its equipment or systems in a way that interferes in any way with or adversely affects the use of the NeuStar network by NeuStar or any other authorized third party user of the NeuStar network. (c) Upon prior written notice by NeuStar, Customer shall promptly remove any interference or service obstruction that may be caused by hardware, software or connectivity, owned by or under the control of Customer or any of its representatives, agents or contractors. If Customer fails to remove any interference or service obstruction in a reasonably timely manner, NeuStar may take any and all reasonable steps necessary to remedy the interference or service obstruction, at Customer’s expense, with no liability to NeuStar. Additionally, if the interference or service obstruction creates an emergency or urgent situation, NeuStar may take any and all reasonable steps necessary to remedy the interference or service obstruction, at Customer’s expense, with no liability to NeuStar. (d) Each party shall take all reasonable precautions not to disturb or interfere with the other party’s services or property, unless such disturbance or interference is deemed to be necessary for control of the use of NeuStar’s network and the party is notified in advance. (e) Customer will allow only authorized employees or agents to access the Network Connection. Customer shall be solely responsible for ensuring that such employees or agents are not security risks. (f) Each party will adhere to generally accepted industry best practices relating to network security and data privacy as they relate to the Network Connection and shall be solely responsible for the selection, implementation, and maintenance of security procedures and policies that are sufficient to ensure that (a) such party’s use of the Network Connection (and Customer’s use of NeuStar-owned equipment) is secure, including protected from viruses and other malicious code or attacks, and is used only for authorized purposes, and (b) such party’s business records and data are protected against improper access, use, loss alteration or destruction.
3.6. User Agreements. Customer acknowledges that the receipt of certain Services hereunder may be subject to the requirements of the North American Portability Management, LLC, and thus the provision of such Services are conditioned upon the recipient of such Services to executing an NPAC/SMS User Agreement with NeuStar, as the NPAC Administrator, for each applicable service area. 4.
PROFESSIONAL SERVICES.
4.1. Statement of Work. Any Services of a professional nature (e.g., development, programming, etc...) provided by NeuStar shall be set forth in a mutually agreed upon written statement of work (“ Statement of Work ”). Each Statement of Work shall contain a conspicuous reference identifying it as a Statement of Work under this Master Services Agreement, or the appropriate Service
Pages where confidential treatment has been requested are stamped, "Confidential Treatment Requested" and the redacted material has been separately filed with the Commission. All redacted material has been marked by three asterisks (***).
1
Agreement. Each Statement of Work shall include or incorporate by reference, subject to agreement to the contrary, the following information, or the process for agreeing to the same: (a) A statement of project requirements. (b) A description of the professional services. (c) A specification covering each Deliverable. (d) Provisions for the design, testing, and final acceptance of each Deliverable. (e) A description of all required progress meetings and the personnel required to participate. (f)
A description of all milestones, including all delivery dates or events.
(g) A statement of compensation structure, including all particular fees or charges. (h) The maximum authorized total expenditure (if applicable). (i)
A list of the Parties’ representatives.
(j)
Any special Intellectual Property provisions.
(k) Any special termination provisions. (l)
Any assumption(s) on which performance of the professional services or delivery of Deliverables is conditioned.
(m) Any special warranty provisions. 4.2.
Modifications. If either Party desires to modify a Statement of Work, then the following procedure will be followed: (a) The requesting Party shall submit a written request to the other proposing change(s) to a Statement of Work.
(b) NeuStar shall develop a change order that includes: (i) an analysis of the impact of the proposed modification 3n the Deliverable(s), including functionality, if applicable; iii) an estimate of the impact on the estimated schedule for the proposed Deliverable(s) resulting from the proposed change order; (iii) an estimate of the additional cost, if any, of the proposed modification; and (iv) an evaluation of the technical feasibility of the proposed change. The modification will not become effective until both Parties agree to it in a writing signed by both. 4.3. Deliverables. NeuStar shall deliver the Deliverable(s) to Customer in accordance with the applicable Statement of Work. Each Statement of Work shall set forth a period after delivery of a Deliverable (the “Acceptance Period”) for the performance of acceptance or functionality testing, if any, and the period within which Customer shall provide NeuStar with a notice of any non-conformities. If not specified in the applicable Statement of Work, the Acceptance Period is deemed to be fourteen (14) days after delivery of the Deliverable or any corrected Deliverable. If the relevant Statement of Work is priced on a Fixed Price Basis, then, unless otherwise provided, NeuStar shall correct all non-conformities within thirty (30) days of receipt of such notification. If the non-conformance is not corrected during such period, then Customer may, at its sole discretion, terminate the Statement of Work in accordance with this Master Services Agreement or require NeuStar to continue working to provide the Deliverable. If the relevant Statement of Work is priced on a Time and Materials Basis, then, unless otherwise provided, the Parties shall follow the modification procedures set forth in Section 4.2. Customer is deemed to accept a Deliverable when it either (a) provides NeuStar with written notification of acceptance or (b) fails to provide such written notice of acceptance or a written notice of non-conformities to NeuStar within the Acceptance Period. 5.
PAYMENT TERMS.
5.1. Payment. Customer shall pay all charges as may be set forth in the Statement of Work or Addenda . Unless otherwise provided for in such Statement of Work or Addenda , NeuStar shall render invoices to Customer on a monthly basis. Payment shall be due and payable no later than thirty (30) days after the date of the invoice. Unless subject to a good faith dispute, and then only if Customer provides NeuStar with notice of the nature of the dispute prior to the due date, any amounts not paid when due shall be assessed interest at a monthly rate equal to one and one half percent (1.5%) or the maximum rate allowed by law, whichever is less, from the date the payment was due. If NeuStar commences legal proceedings to collect any payment due to it hereunder and Customer is found to be required to make such payments, Customer shall be responsible for and pay all reasonable attorney’s fees, court costs and other reasonable collection expenses incurred by NeuStar. 5.2.
Statements of Work.
(a) If a Statement of Work provides for charges on a Time and Materials Basis, then NeuStar shall charge Customer the labor rates set forth in the applicable Statement of Work. If such charges and timelines are specifically noted as an estimate in the Statement of Work and performance requires fewer hours or charges than the estimate, then the Customer’s cost will be less than the estimate. If performance requires more hours or higher charges than the estimate, then NeuStar will notify Customer as soon as it becomes aware of the need. Customer may then terminate the applicable Statement of Work by paying NeuStar for the hours worked and material purchased to date, continue with the work up to the estimated hours, or exercise the amendment process set forth herein and amend the Statement of Work and authorize additional work. (b) If a Statement of Work provides for charges on a Fixed Price Basis, then NeuStar shall perform the stated professional services and deliver the required Deliverables for the fixed price set forth in the Statement of Work. 5.3. Taxes. All charges to Customer are calculated exclusive of any applicable federal, state or local use, excise, value-added, gross receipts, sales and privilege taxes, duties, universal service assessments or similar liabilities (other than general income or property taxes imposed on NeuStar) associated with the Services, whether charged to NeuStar, its suppliers or Affiliates, Customer or End User.
5.4. Records. During the Term, as defined in Section 6.1 below, and for twelve (12) months thereafter, either Party shall provide the other, or its designated representative, upon written request of at least fourteen (14) days, and not more than once per calendar year, reasonable and necessary access to such records and facilities as are reasonably necessary during normal business hours for the purpose of verifying billing invoices under this Master Services Agreement. 5.5. Assurances. Upon request by NeuStar, Customer shall provide a deposit, letter of credit or similar surety as a condition of continued provision of service if (a) Customer’s payments are repeatedly overdue or (b) there is a material and adverse change to Customer’s financial condition or business prospects. 6.
TERM & TERMINATION.
6.1. Term. This Master Services Agreement shall commence on the Effective Date and shall continue until the later of (a) the fifth (5 th Anniversary of the Effective Date or (b the date on which the
2
term of the last effective Addenda expires or is otherwise terminated (collectively with any renewal periods, the “ Term ”), unless otherwise earlier terminated in accordance with this Master Services Agreement. 6.2. Event of Default Termination. In the event that either Party commits an Event of Default, the other Party may, by giving written notice to the defaulting Party, immediately terminate the applicable Addendum under which the material breach occurred. The foregoing notwithstanding, the non-defaulting party may pursue any legal remedies it may have under applicable law or principles of equity relating to such breach and subject to the terms of this Section. 6.3. Insolvency. Either Party may immediately terminate the Addenda if the other Party (a) becomes or is declared insolvent or bankrupt; (b) is the subject of any proceeding related to its liquidation or insolvency (whether voluntarily or involuntarily) which is not dismissed within ninety (90) Days; (c) makes an assignment for the benefit of creditors; (d) experiences a material adverse change in financial condition which may reasonably be expected to affect its ability to perform; or (e) fails to comply with a written request for reasonable assurances within ten (10) Business Days or otherwise repudiates any Addenda. 6.4. Effect of Termination. Termination refers to the termination of the Parties’ respective commitments and obligations from and after the date of termination, but does not relieve the Parties of their payment and other obligations incurred prior to the date of termination. To the extent NeuStar is performing professional services on behalf of Customer, NeuStar shall, with regard to such services: (a) inform Customer of the extent to which performance has been completed through the date of termination or expiration; (b) wind up its work in a commercially reasonable manner; (c) preserve items of value created prior to termination; (d) deliver to Customer all work in progress that Customer has paid for at that time; and (e) invoice Customer all amounts properly due and owing since the date of last invoice. 7.
INTELLECTUAL PROPERTY.
7.1. Reservation. Each Party retains all right, title and interest in and to its respective Intellectual Property rights No licenses will be deemed to have been granted by either Party to any of its Intellectual Property rights, except as otherwise expressly authorized in an Addenda. Any provision in a Statement of Work that deems any Deliverables developed by NeuStar to be a “work made for hire” or the property of Customer, including any Intellectual Property rights thereto, shall be contingent upon payment to NeuStar of all amounts properly invoiced to Customer. 7.2. Tools. All right, title and ownership to any tools, software (both in object code and source code form), hardware, databases excluding any Customer data contained in such databases, and know-how, which NeuStar previously developed or which NeuStar independently develops or licenses from a third party (collectively, “ NeuStar Tools ”) shall remain the exclusive property of NeuStar. The foregoing notwithstanding, in the event that, in order for Customer to use the Services, NeuStar provides Customer with an API, software toolkit, or other software, subject to the terms and conditions of this Master Services Agreement, including without limitation Customer’s timely payment of all fees due, NeuStar hereby grants Customer a non-exclusive, non-transferable except to the extent in conjunction with a permissible assignment of this Master Services Agreement, worldwide, license to use during the Term the API, toolkit and/or other software, as well as any updates and upgrades thereof, solely for the purpose of accessing and using the Services under this Master Services Agreement. In the case that Customer resells a Service under a reseller agreement, the foregoing license shall include the right to sublicense. NeuStar may, in its discretion from time to time and at no charge to Customer, make modifications to the API, toolkit and/or other software licensed hereunder. NeuStar will use commercially reasonable efforts to provide Customer with reasonable notice prior to the implementation of any material changes to the API, toolkit and/or other software. 7.3. Prohibition. Customer shall not, within its reasonable control allow others to, reverse engineer or otherwise attempt to derive source code from the Toolkit, other software, Services, or any software accessed as part of the Services. 8.
CONFIDENTIALITY.
8.1. Confidential Information. Each Party acknowledges that they may be furnished with, receive, or otherwise have access to Confidential Information of the other Party. 8.2.
Exclusion. Confidential Information excludes any information that the receiving Party can demonstrate: (a) at the time of disclosure, was in the public domain or in the possession of the receiving Party; (b) after disclosure, is published or otherwise becomes part of the public domain through no fault of the receiving Party;
(c) was received after disclosure from a third party who had a lawful right to disclose such information to the receiving Party without any obligation to restrict its further use or disclosure; (d) was independently developed by the receiving Party without reference to Confidential Information of the disclosing Party; or (e) was required to be disclosed to satisfy a legal requirement of a competent government body. 8.3. Obligations. The following obligations with respect to Confidential Information shall survive the expiration or termination of this Master Services Agreement perpetually. (a) Each Party’s Confidential Information shall remain the property of that Party. Each Party shall use at least the same degree of care, but in any event no less than a reasonable degree of care, to prevent unauthorized disclosure of Confidential Information as it employs to avoid unauthorized disclosure of its own Confidential Information of a similar nature. Except as otherwise permitted hereunder, the Parties may disclose such information to entities performing services required hereunder where: (i) use of such entity is authorized hereunder, (ii) such
disclosure is necessary or otherwise naturally occurs in that entity’s scope of responsibility, and (iii) the entity agrees in writing to assume the obligations described in this Article. Any disclosure to such entity shall be under the terms and conditions of this Article. (b) Each Party shall take reasonable steps to ensure that its employees comply with this Article. In the event of any disclosure or loss of, or inability to account for, any Confidential Information of the disclosing Party, the receiving Party shall promptly, and at its own expense notify the disclosing Party in writing, and take such actions as may be necessary and cooperate in all reasonable respects with the disclosing Party to minimize the violation and any damage resulting therefrom.
3
(c) Except as otherwise provided herein, either Party may disclose the terms and conditions of this Master Services Agreement to third parties that (i) have expressed a bona fide interest in consummating a significant financing, merger or acquisition transaction between such third parties and such Party, (ii) have a reasonable ability (financial and otherwise) to consummate such transaction, and (iii) have executed a nondisclosure agreement that includes within its scope the terms and conditions of this Article or substantially similar terms and conditions and also includes a procedure to limit the extent of copying and distribution of this Master Services Agreement. Each Party shall endeavor to delay the disclosure of the terms and conditions of this Master Services Agreement until the status of discussions concerning such transaction warrants such disclosure. (d) A Party receiving a request pursuant to Section 8.2(e) to disclose Confidential Information shall immediately upon receiving such request, and to the extent that it may legally do so, advise the disclosing Party promptly and prior to making such disclosure in order that the disclosing Party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information 9.
REPRESENTATIONS & DISCLAIMERS. Mutual Representations. Each Party represents and warrants that:
9.1.
(a) it has the requisite corporate power and authority I:o enter into this Master Services Agreement and to carry out the transactions contemplated hereunder; (b) the execution, delivery and performance of this Master Services Agreement and the consummation of the transactions contemplated hereunder have been duly authorized by the requisite corporate action on its part; and (c) this Master Services Agreement has been duly executed and delivered, and create lawful, valid and legally binding obligations, in accordance with their respective terms. NeuStar Representations. NeuStar represents and warrants that:
9.2.
(a) it shall obtain and/or maintain the resources necessary to provide the Services and shall operate its activities in a professional and workmanlike manner, in accordance with accepted industry standards, and in compliance with all laws, regulations, orders and decrees applicable to NeuStar; (b) it shall provide the particular Services in accordance with the particular description of Services set forth in the applicable Addendum; (c) its provision of the Services does not and shall not infringe, misappropriate or violate the United States Intellectual Property rights of any Person; and (d) it owns or otherwise has the right to provide Customer with Services contemplated hereunder. 9.3. Customer Representations. Customer represents and warrants that, to the extent required for the receipt or resale of any Services, it has executed for each applicable service area an NPAC/SMS User Agreement pursuant to the corresponding NPAC/SMS Master Agreement with the North American Portability Management, LLC, and that each such NPAC/SMS User Agreement is in full force and effect upon execution of this Master Services Agreement. 9.4 Customer Restrictions. Customer shall not make any representations or warranties, whether written or oral, to third parties, including without limitation, its own customers or End Users, concerning the Services that are not expressly authorized herein or that materially depart from any applicable services level commitment set forth under this Master Services Agreement. 9.5. Disclaimers. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN OR UNDER THIS MASTER SERVICES AGREEMENT, ALL SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND NEITHER NEUSTAR NOR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ASSIGNS MAKE ANY WARRANTIES TO CUSTOMER OR TO ANY OTHER THIRD PARTY INCLUDING, WITHOUT LIMITATION, ITS OWN CUSTOMERS AND END USER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT RELATING TO ANYTHING PROVIDED OR USED OR DESCRIBED HEREUNDER, AND ANY SERVICES, EQUIPMENT, MATERIAL, GOODS, REAL ESTATE OR OTHER TANGIBLE OR INTANGIBLE ASSET THAT IS CONVEYED, HYPOTHECATED, LEASED, SOLD, OR OTHERWISE PROVIDED TO CUSTOMER IN ANY MANNER, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED. 10. LIABILITY. 10.1. General Intent. Subject to the specific provisions of this Article, it is the intent of the Parties that each shall be liable to the other only for any direct damages incurred by the non-breaching Party as a result of the breaching Party’s failure to perform its obligations in the manner required by this Master Services Agreement. 10.2.
Restrictions.
(a) EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS IN SECTIONS 11.1(b) AND 11.2(c), WHICH SHALL NOT BE LIMITED, AND NOTWITHSTANDING ANYTHING IN THIS MASTER SERVICES AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ASSIGNS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, LOSS OF BUSINESS, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE, WHETHER SUCH CLAIM IS CHOATE OR INCHOATE, WHETHER BY STATUTE, IN TORT, OR IN CONTRACT, INCURRED BY A PARTY, INCLUDING SUCH PARTY’S CUSTOMERS, VENDORS OR BENEFICIARIES, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (b) FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE EXCLUSIVE REMEDY OF CUSTOMER AND NEUSTAR’S SOLE LIABILITY. (c) EACH PARTY’S LIABILITY HEREUNDER SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DIRECT DAMAGES, (II) AMOUNTS ACTUALLY PAID (INCLUDING
4
BOTH PRINCIPAL AND INTEREST) TO NEUSTAR BY CUSTOMER IN CONNECTION WITH THE CONTESTED SERVICE OVER THE PRECEEDING TWELVE (12) MONTHS FROM THE TIME THE EVENT RESULTING IN LIABILITY OCCURS. THE FORGOING LIMITATION SHALL NOT APPLY WITH RESPECT TO FEES DUE AND OWING HEREUNDER, OR CLAIMS ARISING OUT OF A BREACH OF ANY CONFIDENTIALITY PROVISIONS. 10.3. Force Majeure. Neither Party shall be liable for any loss or damage resulting from any cause beyond its reasonable control (a “ Force Majeure Event ”) including an “act of God”, insurrection or civil disorder, war or military operations, national or local emergency, acts or omissions of government, highway authority or other competent authority, compliance with any statutory obligation or executive order, industrial disputes of any kind (whether or not involving either Party’s employees), fire, lightning, explosion, flood, subsidence, weather of exceptional severity, or any similar act or omission beyond the reasonable control of any Party. Upon the occurrence of a Force Majeure Event and to the extent such occurrence interferes with a Party’s performance of this Master Services Agreement, each Party shall be excused from performance of its obligations during the period of such interference, provided that such Party uses all reasonable commercial efforts to avoid or remove such causes of nonperformance. 11. INDEMNIFICATION. 11.1. NeuStar Obligations. NeuStar shall indemnify, defend and hold harmless Customer, its Affiliates and their respective officers, directors, employees, shareholders, and members from and against any losses, claims, penalties, fines, judgments, damages, forfeitures, liabilities or expenses (including reasonable attorney’s fees, expert witness fees, expenses and costs of settlement) (collectively, “ Losses ”) or threatened Losses arising out of third party claims relating to, incurred in connection with, or based upon: (a) any breach by NeuStar of its warranties and representations set forth in this Master Services Agreement; or (b) any infringement, misappropriation or violation of any United States Intellectual Property right asserted by any third party relating to a Service or Deliverables, including the provision or use thereof, except to the extent that such claim is based on a use of Service or Deliverable that is not authorized under this Master Services Agreement, or otherwise not recommended by NeuStar in writing to Customer, or to the extent that Customer specified the manner in which NeuStar was to perform. 11.2. Customer Obligations. Customer shall indemnify, defend and hold harmless NeuStar, its Affiliates and their respective officers, directors, employees, shareholders, and members from and against any Losses or threatened Losses arising out of, relating to, incurred in connection with, or based upon: (a) any breach by Customer of its warranties and representations set forth in this Master Services Agreement; (b) Customer use of a Service or Deliverable that is not authorized under this Master Services Agreement, or otherwise not recommended by NeuStar in writing to Customer, or to the extent that Customer specified the manner in which NeuStar was to perform; or (c) any infringement, misappropriation or violation of any United States Intellectual Property right asserted by any third party relating to any customer material provided to NeuStar. 11.3. Procedure. Upon receiving notice of any third party claim covered by the indemnity obligations set forth in this Article, the Party entitled to indemnification under such Section (the “ Indemnified Party ”) shall promptly notify the other Party (the “ Indemnifying Party ”). The right of indemnification hereunder shall not be adversely affected by a failure to give such notice, unless and only to the extent that the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party may assume control of the defense of any such claim; however, the Indemnified Party may, at its own cost and expense, participate through its attorneys or otherwise, in such investigation, trial and defense of such claim and any appeal arising therefrom. The Indemnifying Party shall not settle any such claim without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or delayed, unless such settlement is solely for monetary damages for which the Indemnified Party is fully indemnified therefor under this Master Services Agreement. If the Indemnifying Party does not assume full control over the defense of a claim pursuant to this Section, then the Indemnifying Party may participate in such investigation, defense or trial, at its sole cost and expense, and the Indemnified Party shall have the right to defend or settle such claim in such manner as it may deem appropriate, solely at the cost and expense of the Indemnifying Party. 11.4. Option. In addition to the foregoing indemnification obligations, if all or any part of a Service or a Deliverable is, or in the reasonable opinion of NeuStar may become, the subject of a claim of infringement, misappropriation or violation of a third party’s United States Intellectual Property rights, NeuStar may, at its sole discretion and expense, either (a) procure for Customer the right to continue receiving and using the Services or Deliverable; or (b) replace or modify the allegedly infringing aspect of the Services or Deliverable to make it non-infringing, without altering its functionality. 12. GENERAL. 12.1. Assignment. Neither Party may assign or otherwise transfer all or any portion of its rights or obligations under this Master Services Agreement without prior written consent of the other Party, which consent shall not be unreasonably conditioned, withheld or delayed, except that either Party may assign this Master Services Agreement without consent to (a) any Affiliate of such Party; (b) an entity which acquires all or substantially all of the assets of such Party; and (c) a successor in a merger or acquisition. Any assignment or transfer in violation of this Section shall be void and have no effect. 12.2. Notices. Any notices, requests, demands, and determinations under this Master Services Agreement (other than routine operational communications), shall be in writing and shall be deemed duly given (a) when delivered by hand, (b) one (1) Business Day after being
transmitted via an express, overnight courier with a reliable system for tracking delivery, delivery costs paid (c) when sent by confirmed facsimile with a copy delivered by another means specified in this Section, or (d) on the day an authorized employee of the receiving party accepts receipt in writing, when mailed by United States mail, registered or certified mail, return receipt requested, postage prepaid, to the address listed on the first page of this Master Services Agreement. A Party may from time to time change its address or designee for notice
5
purposes by giving the other prior written notice of the new address or designee and the date upon which it will become effective. 12.3. Counterparts. This Master Services Agreement may be executed in counterparts, all of which taken together shall constitute one single agreement between the Parties. 12.4. Relationship of Parties. The Parties are independent contractors, bound to each other only as provided for herein. Neither Party has the authority to bind, act on behalf of or represent the other. Except as expressly set forth in this Master Services Agreement or any Service Agreement, nothing in this Master Services Agreement creates a relationship of partnership, employer and employee, principal and agent, master and servant, or franchisor and franchisee. Neither Party shall act or fail to act in a way that could reasonably cause others to believe that it has authority to act on behalf of the other beyond the authority expressly granted herein. 12.5.
Severability and Modification.
(a) In the event that any provision of this Master Services Agreement conflicts with the law under which this Master Services Agreement is to be construed or if any such provision is held invalid by an arbitrator or a court with jurisdiction over the Parties, such provision shall be deemed to be modified to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. The remainder of this Master Services Agreement shall remain in full force and effect. (b) If any state or federal body of competent jurisdiction determines that any provision of this Master Services Agreement violates any applicable rules, policies, or regulations, both Parties shall make reasonable efforts to promptly bring this Master Services Agreement into compliance and shall endeavor in those efforts to preserve for both Parties the economic benefits as reflected in this Master Services Agreement to the maximum extent possible. 12.6. Consents and Approval. Except where expressly provided as being in the sole discretion of a Party, where agreement, approval, acceptance, consent, or similar action by either Party is required under this Master Services Agreement, such action shall not be unreasonably delayed, conditioned or withheld. An approval or consent given by a Party under this Master Services Agreement shall not relieve the other Party from responsibility for complying with the requirements of this Master Services Agreement, nor shall it be construed as a waiver of any rights under this Master Services Agreement, except as and to the extent otherwise expressly provided in such approval or consent. 12.7. Waiver of Default. No waiver or discharge hereof shall be valid unless in writing and signed by an authorized representative of the Party against which such amendment, waiver, or discharge is sought to be enforced. A delay or omission by either Party hereto to exercise any right or power under this Master Services Agreement shall not be construed to be a waiver thereof. A waiver by either of the Parties of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant. 12.8. Cumulative Remedies. Except as otherwise expressly provided, all remedies provided for in this Master Services Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise. 12.9. Survival. Any provision of this Master Services Agreement which contemplates performance or observance subsequent to any termination or expiration (in whole or in part) shall survive any such termination or expiration (in whole or in part, as applicable) and continue in full force and effect. 12.10. Third Party Beneficiaries. This Master Services Agreement shall not be deemed to create any rights in third parties, including End Users, suppliers and customers of a Party, or to create any obligations of a Party to any such third parties, or to give any right to either Party to enforce this Master Services Agreement on behalf of a third party. 12.11. Governing Law. This Master Services Agreement and performance under it shall be governed by and construed in accordance with the laws of the State of New York, without regard to its choice of law principles (except Sections 5-1401 and 5-1402 of the New York General Obligations Law) or the U.N Convention on Contracts for the International Sale of Goods. The Parties hereby expressly opt-out from the applicability of any State’s version of the Uniform Computer Information Transactions Act (“UCITA”). 12.12. Waiver of Jury Trial. To the extent applicable, the Parties each waive any right they may have to a trial by jury in any legal proceeding arising from or related to this Master Services Agreement. 12.13. Order of Precedence. Any conflict among or between the terms and conditions of the documents making up this Master Services Agreement will be resolved in accordance with the following order of precedence (in descending order of precedence: (i)
this Master Services Agreement,
(ii)
the Addenda;
(iii)
the Service Agreements.
12.14. Entire Agreement. This Master Services Agreement constitute the entire agreement between the Parties with respect to the subject matter in this Master Services Agreement, and supersede all prior agreements, whether written or oral, with respect to the subject matter contained therein. This Master Services Agreement may be modified only by a written instrument executed by both parties. CUSTOMER: VONAGE HOLDING CORP. By: Printed
/S/ (Signature) MICHAEL TRIBOLET
NEUSTAR, INC. By: Printed
/S/ (Signature) MICHAEL R. LACH
Name: Title: Date:
Name: Title: Date:
EVP OPERATIONS 12/29/04
6
PRESIDENT AND CEO 01/04/05
Address:
Address:
2147 Route 27 Edison, NJ 08817
4600 Center Oak Plaza Sterling, VA 20166
7
SCHEDULE 1 TO OSS MASTER SERVICES AGREEMENT Definitions The following terms shall have the following definitions. Other terms used in this Master Services Agreement are defined in the context in which they are used and have the meanings there stated or are defined in the applicable Transaction Document. 1. “ Affiliate ” shall mean, with respect to any entity, any other entity Controlling, Controlled by or under common Control with such entity, whether directly or indirectly through one or more intermediaries. 2. “ Business Day ” or “ business day ” means Monday through Friday, 8:00 a.m. to 8:00 p.m. EST, excluding Federally recognized holidays, as well as the Friday immediately following Thanksgiving Day and the day before Christmas. 3.
“ Confidential Information ” shall mean all information, in any form, disclosed by the disclosing Party to the other Party which: (a) concerns the operations, plans, know-how, trade secrets, business affairs, personnel, customers or suppliers of the disclosing Party; or
(b) the receiving Party knows or might reasonably expect is regarded by the disclosing Party as the confidential information of the disclosing Party; (c) is designated as confidential, restricted, proprietary, or with similar designation; or (d) concerns any of the terms or conditions or other facts with respect to this Master Services Agreement. 4. “ Control ” and its derivatives shall mean legal, beneficial or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding voting capital stock (or other ownership interest, if not a corporation) of an entity, or actual managerial or operational control over such entity. 5.
“ Days ” or “ days ” shall mean calendar days unless otherwise specified.
6.
“ Deliverables ” shall mean the final material that NeuStar is required to deliver to Customer in accordance with a Statement of Work.
7.
“ End User ” shall mean the Person to which Customer ultimately provides services.
8.
“ Events of Default ” shall mean any of the following:
(a) any representation or warranty made by a Party in this Master Services Agreement which was incorrect in any respect when made and that could reasonably be expected to have a material adverse effect upon the other Party’s ability to realize the benefits of its bargain; (b) a material breach of this Master Services Agreement that is not cured within thirty (30) days after notice of breach to the breaching Party; (c) Customer’s failure to make any payment or any other amount when such payment or amount is due and such failure continues for fifteen (15) days after receipt of notice of such failure; 9. “ Fixed Price Basis ” shall mean a compensation arrangement in which NeuStar assumes responsibility for the performance of professional services and/or delivery of any Deliverables set forth in a Statement of Work for a fixed price. 10. “ Intellectual Property ” shall mean all intellectual property rights, including by way of explanation, but not by limitation, those statutory or common law rights in and relating to copyrights, patents, trademarks, trade secrets, moral rights, or any similar rights. 11. “ Losses ” shall mean liabilities, damages and related costs and expenses, including fines, levies, assessments, reasonable legal fees, allocable costs of in-house counsel, and disbursements and costs of investigations, litigation, settlement, judgment, interest and penalties. 12. “ Master Services Agreement ” shall mean this OSS Mister Services Agreement, and all Addenda, Exhibits and Schedules thereto. 13. “ OSS ” means operations support systems. 14. “ Person ” means any individual, corporation, proprietorship, firm, partnership, limited liability company, trust, association or other entity. 15. “ Time and Materials Basis ” shall mean a compensation arrangement in which NeuStar estimates the number of hours and cost of materials required to perform professional services in accordance with a Statement of Work and, if applicable, complete and deliver any Deliverable(s), and bills Customer for the hours actually worked and material actually expended.
16. “ TN ” means a telephone number. 17. “ Working Telephone Number ” or “ WTN ” shall mean a working telephone number (e.g., NPA/NXX/XXXX) for an End User. 18. “ United States Intellectual Property Right(s) ” shall mean any and all Intellectual Property Rights recognized by United States law, treaty or courts. 8
ADDENDUM TO OSS MASTER SERVICES AGREEMENT
ENHANCED SERVICE REQUEST
Enhanced Service Order TABLE OF CONTENTS TABLE OF CONTENTS
I
1.
GENERAL TERMS
1
2.
SERVICE DESCRIPTION
1
2.1 2.2 2.3
1 2 2
3.
4.
ESR Send ESR Receive Availability
PRICE LIST 3.1 Obligations 3.2 Setup Fees 3.3 Transaction Service Fees 3.4 Training Fees SIGNATURE PAGE
2 2 2 2 3 4 i
1. GENERAL TERMS This Enhanced Service Order Agreement (“Service Agreement”) is entered into as of the 27th day of December, 2004 (“Effective Date”) between NeuStar, Inc. (“NeuStar”) and Vonage Holdings Corporation_(“Customer”), and shall be governed by the terms and conditions of the OSS Master Services Agreement (“Master Services Agreement”) dated as of the 27th day of December, 2004, between the Parties. Terms used in this Agreement that are not defined below or in the Master Services Agreement are defined in the context in which they are used and have the meanings there stated. This Service Agreement describes the features of NeuStar’s Enhanced Service Request Service (the “Service”). This Service is one of a number of services comprising the NeuStar OSS Clearinghouse solution. NEUSTAR IS ONLY OBLIGATED TO PERFORM THOSE SERVICE FEATURES SPECIFIED IN THE PRICE LIST SET FORTH HEREIN. The Term of this Service Agreement shall begin on the Effective Date above and unless terminated as provided under the Master Services Agreement shall continue for five (5) years thereafter (the “Service Term”). 2.
SERVICE DESCRIPTION The Enhanced Service Request is a NeuStar OSS Clearinghouse service that automates the processing of transactions from an Enhanced Service Provider (“ ESP ”) to a facilities-based competitive local exchange carrier (“ CLEC ”) required to provision services. NeuStar’s Enhanced Service Request Service supports the following functions: ESR Send ESR Receive
2.1 ESR Send The ESR Send function enables ESPs to request services from their CLEC trading partners. The request supports new, modify, cancel and disconnect requests. Upon submission each request is validated against a generic set of business rules. Business rule validation error details are provided to the end user or upstream system for correction before delivery to the CLEC trading partner. The ESR Send functionality includes a Web GUI from which ESPs can enter orders as well as an XML over SOAP API for upstream integration. ESR Send also supports the receipt of information from a CLEC trading partner such as Due Date, Jeopardy Reasons, Reject Reasons, and Completion Date. CLEC trading partner information is viewable by the ESP via the ESR Order service Web GUI as well as via the XML over SOAP API.
1
2.2 ESR Receive The ESR Receive function enables CLECs to receive orders from their ESP trading partners in an automated fashion. ESR Receive supports new, modify, cancel and disconnect requests. ESR Receive also supports CLEC specific business rule validation upon receipt of each request. Automated rule validation error details are provided to the ESP for correction. ESR Receive supports the transmission of order status (Due Date, Jeopardy Reasons, Reject Reasons, Completion Date ) to the ESP. ESR Receive also provides a Web GUI from which CLEC users can view ESRs as well as an XML over SOAP API for downstream integration. 2.3 Availability The above-listed services are available for a given trading partner only in the event that the trading partner supports the functionality, and such functionality is supported through an electronic bonding interface. Where a trading partner does not support an e-bonding interface, NeuStar will send the service requests to the trading partner via fax, spreadsheet or email, where supported by the trading partner. 3.
PRICE LIST
3.1 Obligations. NeuStar shall provide the services described herein between Customer and the following [...***...] trading partners: [...***...], subject to the limitations set forth in Section 2.3 above. Additional Trading Partners may be added at Customer request, subject to the limitations set forth in Section 2.3 above, the financial terms set forth is section 3.2 below, and the terms and conditions of an applicable Statement of Work to be agreed upon by the parties. 3.2 Setup Fees. Customer shall pay NeuStar a setup fee in accordance with the terms as set forth on Schedule 1 attached hereto. 3.3 Transaction Service Fees. Each month Customer shall pay NeuStar a monthly fee based upon the table set forth in Schedule 1 attached hereto. *** Confidential Treatment Requested
2
3.4 Training Fees. Included in the setup fees above is [...***...] of “train the trainer” training session at NeuStar’s Sterling, VA facility (“Initial Training”). Initial Training will train the trainer on the NeuStar ESR Solution. Initial Training must be used within sixty (60) days from the Effective Date. Additional training may be offered, upon Customer request. Customer shall pay NeuStar [...***...]. In addition, Customer shall be responsible for reasonable travel related expenses, if such training is to be conducted at Customer location. *** Confidential Treatment Requested
3
4.
SIGNATURE PAGE
This Service Agreement is executed by the duly authorized representatives of the Parties: CUSTOMER: VONAGE HOLDING CORP. By:
NEUSTAR, INC
/s/
By: (Signature)
(Signature)
Printed Name: MICHAEL TRIBOLET
Printed Name: MICHAEL R. LACH
Title: EVP OPERATIONS Date:
/s/
Title: PRESIDENT AND COO
12/29/04
Date:
Address: 2147 Route 27 EDISON, NJ 08817
01/04/05
Address: 46000 Center Oak Plaza STERLING, VA 20166
BILLING CONTACT Name: CHRISTINE MOREHOUSE Title: Address: 2147 ROUTE 27 EDISON, NJ 08817 Telephone: 732-226-2999 Facsimile: 732-476-5243 E-mail:
[email protected]
4
Schedule 1 to the Enhanced Service Request
Transaction Service Fees Customer shall pay to NeuStar, each month, the following fee based on the aggregate number of ESR Send orders (per Telephone Number) provided under this Service Agreement. Each month Customer shall pay NeuStar the greater of: (a) (b)
[...***...] per schedule set forth in the Monthly Schedule Table below; or An amount equal to the product of [...***...] for each request type in each Transaction Tier on a calendar month basis and the applicable rates specified in the Monthly Schedule Table below:
Monthly Schedule [...***...]
[...***...]
[...***...]
[...***...]
[...***...]
Monthly [...***...]
[...***...]
[...***...]
[...***...]
[...***...]
Effective April 1st, 2006 Monthly [...***...]
[...***...]
Monthly [...***...]
[...***...]
(This monthly [...***...] shall apply for remainder of the term)
Price per Transaction [...***...]
[...***...]
Transaction cost is inclusive of [...***...]. The services described herein are [...***...]. Accordingly, such corresponding fees are not represented in this fee schedule. Should Customer establish the need for such transactions, the Parties agree to negotiate a service addendum that will address such capabilities.
Setup Fees
Customer shall pay NeuStar a one-time set-up fee equal to [...***...] for implementation of services and for set-up of trading partner interfaces for the [...***...] trading partners identified in Section 3.1 above. Additional trading partners may be added for an additional fee of [...***...] per trading partner.
*** Confidential Treatment Requested 5
Customer shall pay NeuStar an additional fee of [...***...] subject to successful production turn-up of the ESR Send capability to the first trading partner prior to [...***...]. [...***...] of the setup fees stated above will be invoiced upon contract signature and due net 30. NeuStar will invoice Vonage for the remaining [...***...] upon Vonage’s written acknowledgement that it has experienced [...***...] of continuous uptime in production mode.
*** Confidential Treatment Requested 2
ADDENDUM TO OSS MASTER SERVICES AGREEMENT
The NeuStar OSS Clearinghouse
TABLE OF CONTENTS
The NewStar OSS Clearinghouse TABLE OF CONTENTS 1 . INTRODUCTION 2 . CLEARINGHOUSE 2.1 Data Center 2.2 Network Connectivity 2.3 Customer Support Services 2.3.1 Trading Partner Certification 2.3.2 Systems Integration 2.3.3 Training 2.3.4 Documentation 2.3.5 Testing 2.3.6 Trading Partner / Industry Change Management 2.3.7 Help Desk 2.4 System Interfaces 2.4.1 User Interface 2.4.2 Application Programming Interface 2.4.3 Custom OSS Adaptors 3 . SERVICE LEVEL AGREEMENT 3.1 Availability 3.2 Exclusions 3.3 Remedies 4 . ANCILLARY SERVICES 4.1 Disaster Recovery 4.1.1 Backups 4.1.2 Security
i
I 1 1 1 1 1 2 2 2 2 3 3 3 5 5 5 5 5 6 6 6 7 7 7 7
1.
INTRODUCTION
The NeuStar OSS Clearinghouse is a centrally managed, information interchange processing facility that provides OSS interconnection services to a customer under a NeuStar OSS Master Services Agreement. These services enable the exchange of different types of information with multiple trading partners (“ Trading Partners ”). The Clearinghouse supports multiple service suites, each of which is further described in separate Service Agreements under the OSS Master Services Agreement. Capitalized terms used by not defined herein shall have the meanings ascribed to them in the OSS Master Services Agreement, dated as of December 27th, 2004, by and between NeuStar, Inc. and Vonage Holdings Corporation (the “Master Services Agreement”), and the services herein are deemed Services under the Master Services Agreement. 2.
CLEARINGHOUSE
2.1
Data Center
The NeuStar OSS Clearinghouse is hosted in the NeuStar Data Center, which provides hosting for mission-critical services to the telecommunications industry. The Data Center is responsible for operating and maintaining network equipments and servers for the NeuStar OSS Clearinghouse. It operates a Network Operations Center (NOC) that provides network monitoring and customer support on a 24x7 basis. 2.2
Network Connectivity
Network connectivity to the NeuStar clearinghouse (the “ Clearinghouse ”) is required from both the Customer to the Clearinghouse and from the Clearinghouse to the Trading Partner’s networks. Connectivity to Customer Customer connectivity with NeuStar’s OSS Clearinghouse may be based on the public access Internet or on a dedicated circuit and is the responsibility of Customer. Customer may have existing circuit connectivity to NeuStar used for other NeuStar service offerings, (e.g., Number Portability Administration Center (“ NPAC ”) connectivity). If Customer desires to utilize such existing connectivity for access to the NeuStar OSS Clearinghouse system, then-Customer must seek written approval from NeuStar. Customer understands, however, that such use of existing interconnection facilities (e.g., NPAC) is not recommended by NeuStar and, therefore, any service outage of the OSS Clearinghouse Services described under the Master Services Agreement and/or any attached addendum or Service Agreement that is caused by an outage of such other connectivity to a separate NeuStar system shall be excluded from the determination of whether NeuStar has met any service level requirement. Connectivity to Trading Partners NeuStar connectivity to Trading Partners is accomplished through an established network of physical circuits to the various ILEC and IXC data centers. The NeuStar Clearinghouse provides certified interfaces to access these Trading Partner gateway systems. The Trading Partner access network provides high speed, redundant circuits to each of these Trading Partner data centers, which terminate at the appropriate routers to access the required gateway systems. 2.3
Customer Support Services
1
2.3.1
Trading Partner Certification
The NeuStar OSS Clearinghouse certifies its interfaces with the Trading Partners. Following is a description of the certification process. Define Certification Requirements— When a new Trading Partner interface is to be supported, the requirements for the interface are captured and memorialized in a writing provided to Customer and Trading Partner and any system components need are developed or configured. Kick-Off Meeting— The official start of the certification process is with the Kick-Off Meeting, where the NeuStar OSS Clearinghouse Certification Team meets with the Trading Partner Certification Team. Written Test Plans and a written Test Schedule are reviewed and agreed to for the testing process. Establish Trading Partner Connectivity— The Trading Partner gateways must be able to recognize and accept transactions from the Customer. This requires that the Trading Partner IDs and relationships are configured into the Trading Partner gateway, tested and certified. NeuStar utilizes the Trading Partner specified transport methods such as Connect:Direct, CORBA, or Interactive Agent as a means of transmitting requests and receiving responses. The testing and certification of the interface is a critical part of the Trading Partner connectivity component. Develop Test Plan and Test Data— The Certification is based on a set of agreed upon tests that demonstrate that the NeuStar OSS Clearinghouse system is able to meet the Trading Partner’s Interface and operate successfully. NeuStar, working with the Trading Partner’s team develop the plan and the data, with expected results (collectively the “ Test Plan ”) and a schedule for performing and completing the Test Plan (the “ Test Schedule .”) Execute and Pass all Test Cases— Once connectivity is established, the test orders will be submitted and worked as issues arise until all tests are in passed status. The NeuStar Certification Team is dedicated to this process and ensures that test cases are completed and all issues are resolved. Receive Trading Partner Certification— Once all test cases have been executed and passed successfully, the Trading Partner will certify that the NeuStar OSS Clearinghouse is certified on its gateway. 2.3.2
Systems Integration
NeuStar offers systems integration support, on a professional services basis, for Customers that select to use the Clearinghouse API or OSS Adaptor. 2.3.3
Training
NeuStar provides end user training for Clearinghouse Customers. Users who undergo training will learn the processes for both data input and output, and will have hands-on training with instruction on using the Web-based interface. Training sessions can be designed with a “train the trainer” approach, allowing students to return from the training with the ability to transfer materials and capabilities to additional users of the Clearinghouse. The training may be delivered remotely via a web cast session, in-house at the NeuStar training facility or, on site with the Customer. Pricing for training is set forth in the applicable Service Agreement. 2.3.4
Documentation
NeuStar provides documentation for its Clearinghouse Customers, including the following: (a)
User Guide describing the features of the Clearinghouse Service;
(b) Online Help describing the trading partner business rules; and
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(c) 2.3.5
Training Materials to all students participating in our training sessions. Testing
The NeuStar Clearinghouse provides Customers access to a test system that enables the testing of system changes at the Clearinghouse. This gives Clearinghouse Customers the ability to test changes prior to going to production. Trading Partner / Industry Change Management
2.3.6
NeuStar maintains the Trading Partner interfaces to ensure compliance with industry standards and the Trading Partner specific business rules. Interface changes are implemented to meet industry requirements and individual Trading Partner release schedules. 2.3.7
Help Desk
(a) The NeuStar OSS Clearinghouse provides Help Desk services for customer support during Standard Business Day (as defined in the Master Services Agreement). The Help Desk is the single point of initial contact for Customers to contact the Clearinghouse and open a trouble ticket or obtain information. The Help Desk will open and track all customer requests until they are closed. NeuStar’s Help Desk number is [...***...] . (b) Escalation Path For Technical Support Issues: If Customer is not satisfied with the technical support provided by NeuStar, Customer may follow and initiate the escalation path (including any appropriate escalation to a higher level contact) to the associated contacts as set forth below. Such contacts may be changed from time-to-time, upon reasonable and prior written notice to Customer. Level
Name
Position
Phone #
Cell Phone
Email
Initial Contact Secondary Contact Final Contact
[...***...] [...***...] [...***...]
[...***...] [...***...] [...***...]
[...***...] [...***...] [...***...]
[...***...] [...***...] [...***...]
[...***...] [...***...] [...***...]
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(c) The following table describes NeuStar’s severity levels and their associated resolution procedures. Severity Level
1 Critical business impact
Conditions
Complete loss of service and work cannot reasonably continue
Resolution
Closure
NeuStar Customer Support will work around the clock and Customer agrees to commit resources 24 hours a day until problem resolved. Fixes will be applied as emergency patches.
Customer receives a workaround or information that resolves the issue and has tested workaround and/or resolution
The Severity Level may be downgraded if a viable workaround is established.
Patch is implemented, if issue is due to a software defect
Functionality of the service is seriously affected or gives unexpected or incorrect results
Fixes may be delivered as emergency patches. Fixes could alternatively rolled out in next Maintenance Release.
Customer receives information that resolves the issue
A workaround is available, but can only be used for a short time
The Severity Level may be downgraded if a viable workaround is established.
Patch is implemented, if issue is due to a software defect
Issue can be circumvented
Fixes may be implemented in next service upgrade/update
Next upgrade/update to include fix
Real or perceived data loss or corruption An essential part of the service is unusable No workaround is available 2 Significant business impact
3 Minimal
business impact
Service can be used with only slight inconvenience
4
4
Feature Requests
Little business impact
Documentation enhancement
Fixes may be implemented
Customer receives information that resolves the issue. Fix implemented
Cosmetic issues NeuStar Product Management reviews the Feature Request and NeuStar Customer Support notifies the Customer of status
2.4
System Interfaces
The NeuStar Clearinghouse provides three system interface options. Clearinghouse Customer’s may choose to enter their orders directly in the Clearinghouse graphical user interface (GUI), through a mechanized interface that utilizes the Clearinghouse’s Application Program Interface (API), or through the OSS Adaptor. 2.4.1
User Interface
The Clearinghouse is accessible to users via a graphical user interface (GUI) using a standard web-browser. The GUI allows the Customer to create and update order transactions, as well as monitor and manage the processes involved in interconnection. This enables order entry and tracking, and enables users to manage exceptions and resolve fallout. 2.4.2
Application Programming Interface
NeuStar’s OSS Clearinghouse services are accessible via a bi-directional XML Application Programming Interface (API). All request and response messages exchanged with the Customers back office systems are formatted as XML documents. 2.4.3
Custom OSS Adaptors
OSS Adaptors enable external customer systems to integrate to the OSS Clearinghouse API. The NeuStar Clearinghouse provides an OSS Adaptor Toolkit that can be used to integrate to the Customer’s back-office systems. Customers may choose to use the adapter toolkit to integrate information presented in customer specific format and transform it to meet the NeuStar API requirements. 3.
SERVICE LEVEL AGREEMENT
NeuStar will provide the OSS Clearinghouse Service in accordance with the service levels set forth herein. 3.1
Availability
NeuStar will ensure availability of the OSS Clearinghouse Service (“ Service Availability ”) of at least [...***...] (“ Minimum Service Availability ”). The
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Service is considered unavailable if Customer is unable to perform transactions as described in an applicable Service Agreement. 3.2
Exclusions.
In determining whether NeuStar has met any service levels, including any additional SLA set forth herein or in a Service Agreement under the OSS Master Services Agreement, failures and interruptions caused by the following shall be excluded:
3.3
•
facilities, hardware, or software provided by or under the control of Customer;
•
acts or omissions from or by Customer;
•
LEC or Trading Partner system outages or unavailability;
•
NeuStar scheduled maintenance—which shall be announced and communicated to Customer and any changes to the standard maintenance schedule shall be communicated to Customer at least seven (7) days in advance;
•
anything beyond the point at which NeuStar connects to the public Internet;
•
NeuStar compliance with Customer-provided specifications or directions; or
•
a Force Majeure Event (as defined in the Master Services Agreement). Remedies
If Service Availability fails to meet the Minimum Service Availability requirement for [...***...], then the Parties will assign appropriate management personnel and investigate the reasons for the failure to meet the Minimum Services Availability. NeuStar will then identify the impact on Customer and develop a plan for improvement (“ Improvement Plan ”). The Improvement Plan will be developed and submitted to Customer within [...***...], and will detail the actions to be taken for improving performance to the acceptable service level and identify dates for achieving such results. If NeuStar fails to achieve the service level by the date committed in the Improvement Plan, then NeuStar shall apply a [...***...] that NeuStar misses Minimum Service Availability. The maximum service credit that shall be applied for all service level failures [...***...] of the monthly transaction-based fees in any given billing month. NeuStar’s obligation to apply a credit is contingent on Customer submitting a support request within two (2) days of the outage or failure via email or telephone to NeuStar’s customer support department. Such support request must contain up-to-date contact information and accurately state the nature of the problem as known to Customer. Upon Customer’s submission of such support request, NeuStar shall automatically apply such credits to Customer’s account. If NeuStar fails to achieve Minimum Service Availability by more than [...***...] months, Customer may terminate the Master Services Agreement.
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4.
ANCILLARY SERVICES
4.1
Disaster Recovery
The NeuStar OSS Clearinghouse is deployed in [...***...] geographically dispersed data centers, one as the primary, and [...***...], with highspeed network connections between the [...***...] data centers. The primary data center has a separate secured facility that stores the backup data on tapes from the data center. In the case of disaster, Customers’ data can be restored from the backup facility. The data center has a comprehensive security measures including network security and building security, minimizing the risk of the data center being attacked from the Internet as well as by human intrusion. 4.1.1
Backups
NeuStar performs and logs daily and weekly backups of transaction and system data using NeuStar’s enterprise backup system. The backup includes operating systems, software application, scripts, utilities, databases, and logs used in providing the Service. 4.1.2
Security
NeuStar provides industry standard security features to protect the NeuStar OSS Clearinghouse. NeuStar’s security system incorporates authentication, access control, logging, security, and encryption techniques.
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Enhanced Service Order Agreement Vonage Holdings Corporation NeuStar, Inc. This Addendum (“Addendum”) is made and entered into as of the last date signed below (the “Addendum Effective Date”) by and between Vonage Network Inc. and NeuStar, Inc. (“NeuStar”). Background WHEREAS, Vonage and NeuStar have entered into that certain OSS Master Services Agreement (the “Agreement”) and Enhanced Service Order Agreement (“Service Agreement”), effective December 27, 2004; and the Agreement and the Service Agreement were assigned on effect as of January 1, 2005, by Vonage Holdings Corp. in a corporate reorganization to Vonage Network Inc., (“Vonage”) a wholly owned subsidiary of Vonage Holdings Corp WHEREAS, Vonage and NeuStar have reached agreement on the additional services that NeuStar will provide to Vonage under the terms and conditions set forth herein and in the Agreement and the Service Agreement. Addendum THEREFORE, in exchange for the consideration and covenants herein, the receipt and sufficiency of which the parties hereby acknowledge, the parties agree as follows: 1.
NeuStar shall provide the ESR Receive functionality to Vonage Trading Partners. For every CLEC trading partner of Vonage that receives ESR transactions from Vonage via NeuStar’s ESR Receive service, Vonage shall pay NeuStar the fees set forth in the table below for each transaction successfully delivered by Neustar to such CLEC trading partner. For purposes of this Addendum, “transaction” shall have the meaning set forth in the Service Agreement.
2.
NeuStar shall seek, with reasonable assistance from Vonage, Letters of Authorization from all of Vonage’s CLEC trading partners authorizing NeuStar to process, on Vonage’s behalf, LSR preorder and ordering transactions.
3.
For every ESR request for which NeuStar […***…] processes an […***…] transaction […***…] on behalf of Vonage, [… ***…] Vonage shall pay NeuStar a fee of […***…]. Where rejections encountered in the ESR fulfillment process managed […***…] NeuStar shall assess an additional fee of […***…] for each incident […***…].
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4.
For every ESR request for which NeuStar conducts an […***…] transaction on behalf of Vonage, NeuStar shall charge the fees set forth in the table below. In addition, when authorized by the CLEC trading partner, Vonage may request that NeuStar process related […***…] to the […***…] on its behalf. For this service NeuStar shall charge the fees set forth in the table below.
5.
Vonage may request NeuStar to perform […***…] for certain subscribers as described in the Statement of Service. NeuStar shall perform such […***…] for a fee of […***…] within normal business hours and $15 per TN outside of standard business hours. Vonage shall provide NeuStar with a 5 business day advance notice and a 2-hour window within which such […***…] shall need to be scheduled. This is in addition to normal transaction fees and this is distinct from the […***…] described in the SOS.
6.
For every ESR request received from Vonage that involves a […***…], NeuStar shall send a […***…] transaction to the [… ***…] for the subscriber. NeuStar shall charge Vonage the fees set forth in the table below for every […***…] for which such a transaction is processed. The table below detailsthe various charges discussed in Sections 3-5 above, with additional details where appropriate, and supersedes all pricing or fees in the Agreement or Service Agreement, and the Enhanced Service Order, or Addendum to either, or other orders or documents between the parties:
Transaction Type
Per transaction fee based on volume tiers (aggregate) […***…] […***…] […***…]
[…***…]
[…***…]
Transaction Type […***…] […***…] […***…] […***…] […***…] Transaction Type […***…] […***…]
***
[…***…]
[…***…]
Per transaction fee based on volume tiers (aggregate) […***…] […***…] […***…] […***…] […***…] […***…] […***…]
[…***…] […***…] […***…] […***…]
[…***…] […***…] […***…] […***…]
Per transaction fee based on volume tiers (aggregate) […***…] […***…] […***…] […***…]
[…***…]
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[…***…]
Per transaction fee based on volume tiers (aggregate) […***…] […***…] […***…] […***…] […***…] […***…]
Transaction Type […***…]
7.
The following monthly recurring fee schedule replaces any and all […***…] pricing stated in the Addendum to the Agreement and the Service Agreement, and all related addenda or orders related to any of such documents. Each month Customer shall pay NeuStar the greater of: (a) (b)
[…***…] commitment amount set forth in the table below; and An amount equal to the product of […***…] on a calendar month basis and the applicable rates specified in the Transaction Type table set forth above:
Monthly Schedule […***…] Monthly […***…]
Month […***…]
Month […***…]
[…***…]
[…***…]
Effective Month […***…] Monthly Tiers
Monthly […***…]
[…***…]
The […***…] amounts set forth in the table above, shall become effective on the first production order flows from Vonage to […***…] or their affiliates (hereinafter collectively “XO)”) through the NeuStar system, and shall apply as set forth above through the term of the Service Agreement. If within ninety (90) days of the Addendum Effective Date, […***…] Vonage may terminate this Addendum, the Agreement, and the Service Agreement, and all related addenda or orders related to any of such documents or agreements between the parties upon thirty (30) days advance written notice, with no penalty and no further obligation to Vonage; provided, however, that any delay or inability to process such orders shall not be the direct result of delay, failure or action on the part of Vonage and Vonage shall have provided all […***…]. 8.
NeuStar shall establish with Vonage, mutually agreeable methods and procedures, for order delivery and addressing fallout during processing of orders, as described in the Statement of Service.
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9.
If NeuStar fails for […***…] to meet any specific service levels set forth in the Vonage Statement of Service for Deployment of the NeuStar Clearinghouse (ESR) and related documents, then the Parties will assign appropriate management personnel and investigate the reasons for the failure to meet such service levels. NeuStar and Vonage will then identify the impact on Vonage and develop a plan for improvement (“Improvement Plan”). The Improvement Plan will be developed and submitted to Vonage for approval […***…] and will detail the actions to be taken for improving performance to the acceptable service level and identify dates for achieving such results. If NeuStar fails to achieve the service levels described in and by the date committed in the Vonage approved Improvement Plan […***…] unless otherwise mutually agreed upon by the Parties), then Vonage shall have the right to terminate this Addendum, the Agreement, and the Service Agreement, and all related addenda or orders related to any of such documents without penalty; provided, however, that such termination shall not relieve Vonage of the obligation to pay any amounts already due.
10.
This Addendum may be executed in counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by the parties. Telecopied or facsimile signatures shall be given the same effect as originals.
11.
Upon execution the Parties shall in good faith negotiate the issuance of a press release announcing and describing the relationship set forth herein, for release to the public within 30 days of execution of this agreement.
12.
Neustar hereby consents to the assignment of the Agreement and the Service Agreement by Vonage Holdings Corp. to Vonage Network Inc.
Approved and Accepted By: NeuStar, Inc.
Vonage Holdings Corporation
/s/ Signature
/s/ Signature
John Malone Printed Name
Michael Tribolet Printed Name
SVP Title
EVP Operations Title
7/26/05 Date:
7/22/05 Date:
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iPeer Program Participation Form
IPeer Participant Number
1. Effective Date:
12/8/04
2. Participant Name:
Vonage
3. Customer Contact Information: Name:
Michael Tribolet
Phone Number:
732-528-2630
Fax Number: Email Address:
[email protected]
4. Customer billing Contact Name and Address (if different from above) Name: Address:
Christine Moorehouse 2147 Route 27 Edison, NJ 08817
5. Customer hereby agrees to be bound by the terms and conditions set forth in the IP Traffic Exchange/iPeer Program Participation Terms and Conditions (“Terms & Conditions”). Signature of Authorized Customer Representative /s/ Name: Title:
Michael Tribolet EVP Operations
Accepted by Neustar: /s/ Name: Michael Markovic Title
VP, Account Management
NeuStar, Inc. 46000 Center Oak Plaza Sterling, Virginia 20166
IP Traffic Exchange/iPeer Program, Participation Terms and Conditions 1. SERVICE. NeuStar shall provide to Participant (individually a “Party” and collectively the “Parties”) its Service Provider ENUM component of its IP Traffic Exchange services (the “Service”) in accordance with these Terms and Conditions. The Service is a clearinghouse service designed to enable efficient exchange of IP traffic between service providers by providing discovery of IP endpoints of other participants. No other terms and conditions shall apply to the provision of the Service unless expressly agreed in writing by NeuStar and Participant. 2. TERM. The term of these Terms and Conditions shall begin on the Effective Date and shall continue for four (4) years thereafter (together with any renewals, the “Term”), unless terminated by either Party as provided herein. Thereafter, the Term shall automatically renew for successive twelve (12) month periods. 3. NO RESALE. The Service is for use by Participant solely for its internal business purposes, and not for resale as a stand-alone product to any third party, including by way of a service bureau, provided, however, that Participant shall be authorized to provide the Service functionality to its customers to facilitate Participant’s other offered services. 4. OPERATION. On at least a quarterly basis (due at the beginning of each quarter), Participant shall provide NeuStar with transaction volume projections for that quarter. 5. NON-INTERFERENCE. In order to participate in the Program, Participant will be required to connect to NeuStar’s Clearinghouse system. Participant may only use the connection to NeuStar’s systems (“Network Connection”) for the specific lawful business purposes outlined in these Terms & Conditions, or in any applicable exhibit or addenda. Participant shall not use the Network Connection or its equipment or systems in a way that interferes in any way with or adversely affects the use of the NeuStar Clearinghouse by NeuStar or any
other authorized third party user of the NeuStar Clearinghouse. NeuStar reserves the right to cancel and/or temporarily suspend the delivery of Service if Participant engages in activities which cause disruption or damage to NeuStar’s network or which NeuStar reasonably believes may cause disruption or damage to NeuStar’s network. NeuStar will provide Participant with notice of such suspension and will make reasonable efforts to work with Participant to restore Service.
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6. PRICING AND BILLING. The Service shall be provided free of charge from the Effective Date to December 31, 2005. Beginning January 1, 2006, Participant shall receive a discounted rate of [...***...] of the commercially available rates for the Service for twelve (12) months, beginning January 1, 2006. For the remainder of the Term thereafter, Participant shall pay NeuStar according to the then current commercially available rates. The Parties agree that as of the Effective Date, NeuStar has not established the commercially available rates for the Service. Therefore, prior to Participant’s obligation to pay beginning in the second (2 nd ) year of the Term, the Parties shall negotiate in good faith a price and billing schedule to be attached hereto as Exhibit A. In the event that, after reasonable good faith negotiations, the Parties are unable to reach agreement on a price and billing schedule, Participant shall have the right to terminate its participation in the Program with no further liability for either Party. 7. SERVICE LEVELS. Participant agrees that the Service will be provided on an “as is” basis and that there will be no assured service level agreements, including but not limited to availability and system response times. Without limiting the generality of the above, however, NeuStar will make commercially reasonable efforts to provide the Service in a workmanlike and professional manner and to follow established industry best practices. The Parties agree that upon commencement of the second (2 nd ) year of the Term, they shall negotiate appropriate service level agreements based upon mutual experience with the market which shall be attached as Exhibit C hereto. In the event that, after reasonable good faith negotiations, the Parties are unable to reach agreement on a service level agreement, Participant shall have the right to terminate its participation in the program with no further liability. 8. ADVISORY BOARD. Participant agrees to serve during the Term as a member of NeuStar’s Product Advisory Board for the Service. NeuStar expects that this board will meet approximately twice per year for the purpose of soliciting feedback and advice on the Service and possible enhancements or changes thereto. 9. NORTH AMERICAN SERVICES. Participant agrees that during the Term, NeuStar shall be the sole and exclusive provider of the Service to Participant with respect to any telephone numbers in the North America Numbering Plan (NANP). In addition, during the Term, Participant shall not develop its own equivalent of the Service for use with NANP telephone numbers, nor shall Participant enter into any negotiations, discussions or agreements with any organization regarding the purchase of the Service or its equivalent for NANP telephone numbers. 10. TERMINATION. In the event that either Party commits a material breach of these Terms & Conditions, the other Party may, by giving written notice to the defaulting Party, terminate Participant’s participation in the Program, provided that the breaching Party shall have thirty (30) days to cure any such breach. The foregoing notwithstanding, the non-defaulting party may pursue any legal remedies it may have under applicable law or principles of equity relating to such breach and subject to the terms of this Section. Either Party may immediately terminate Participant’s participation in the program if the other Party (a) becomes or is declared insolvent or bankrupt; (b) is the subject of any proceeding related to its liquidation or insolvency (whether voluntarily or involuntarily) which is not dismissed within ninety (90) days; or (c) makes an assignment for the benefit of creditors. Termination refers to the termination of the Parties’ respective commitments and obligations from and after the date of termination, but does not relieve the Parties of their payment, if any, and other obligations incurred prior to the date of termination. 11. LIABILITY. EACH PARTY’S LIABILITY HEREUNDER SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DIRECT DAMAGES, OR (II) AMOUNTS ACTUALLY PAID (INCLUDING BOTH PRINCIPAL AND INTEREST) TO NEUSTAR BY CUSTOMER IN CONNECTION WITH THE CONTESTED SERVICE OVER THE PRECEEDING TWELVE (12) MONTHS FROM THE TIME THE EVENT RESULTING IN LIABILITY OCCURS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES. WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, NEUSTAR SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES SUSTAINED BY PARTICIPANT OR ITS END USERS BY REASON OF ANY FAILURE IN OR BREAKDOWN OF THE CLEARINGHOUSE, THE SERVICE OR NEUSTAR-PROVIDED WEB APPLICATION SOFTWARE, OR FOR ANY INTERRUPTION OR DEGRADATION OF THE SAME, WHATEVER THE CAUSE OR DURATION THEREOF. 12. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEUSTAR
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DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH RESPECT TO THE CLEARINGHOUSE, THE WEB APPLICATION SOFTWARE, AND THE SERVICES RENDERED HEREUNDER. 13. CONFIDENTIALITY. For a period of two (2) years from the date of disclosure thereof, or such longer period as required by regulation, law or court order, each Party shall use at least the same degree of care, but in any event no less than a reasonable degree of care, to prevent unauthorized disclosure of the other Party’s Confidential Information as it employs to avoid unauthorized disclosure of its own Confidential Information of a similar nature. For purposes of these Terms and Conditions, Confidential Information shall mean any information that a Party indicates to the other Party is, or that the other Party is on notice or with respect to which a reasonable Party should be on notice, confidential in nature (e.g., marked “confidential” or “proprietary”). 14. PUBLICITY. Neither Party shall identify, either expressly or by implication, the other Party or use any of their trade names, trademarks, service marks, or other proprietary marks in any advertising, sales presentation, news releases, advertising, or other promotional or marketing materials without such other Party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, NeuStar may identify Participant as an IP Traffic Exchange Participant and shall have the right to issue a press release describing the Program and identifying Participant as a charter participant of the Program. 15. DATA OWNERSHIP AND USE. The Parties agree that Participant shall maintain sole and exclusive ownership of the data that it provides NeuStar to provision the Service and that such data shall be considered Confidential Information hereunder; provided, however, that NeuStar shall have the right to disclose elements of such data to other users of the Service only for the purpose of providing the Service as contemplated hereunder. 16. SERVICE OWNERSHIP AND LICENSE. NeuStar, or its licensors, has and shall have sole and exclusive ownership of all right, title and interest in and to the IP Traffic Exchange service, including, but not limited to, associated hardware, software, interfaces, and documentation, and all portions and copies thereof, including all associated intellectual property rights. Without limiting the foregoing and notwithstanding anything else herein, Participant grants to NeuStar a non-exclusive right to use, reproduce, access, modify, distribute, transmit, exchange, export and relay any of the Participant’s data in the IP Traffic Exchange service to the extent necessary for NeuStar to provide the Service. NeuStar grants to Participant a non-exclusive, non-transferable right and license to use the IP Traffic Exchange service and any associated web application software or tools for the limited purposes set forth herein. Except as provided herein, Participant shall not modify, create derivative works based on, loan, rent, lease, give, sublicense, transfer, publish, disclose, display, reverse engineer, decompile, translate, adapt, or disassemble the IP Traffic Exchange service or associated web application software or tools. 18. ENTIRE AGREEMENT. These Terms and Conditions constitute the entire agreement between the Parties with respect to the subject matter herein, and supersede all prior agreements, whether written or oral, with respect to the subject matter contained therein. These Terms and Conditions may be modified only by a written instrument executed by both parties. 19. ASSIGNMENT. Neither Party may assign or otherwise transfer all or any portion of its rights or obligations under these Terms and Conditions without prior written consent of the other Party, which consent shall not be unreasonably conditioned, withheld or delayed. 20. GOVERNING LAW. These Terms and Conditions shall be governed by the laws of the Commonwealth of Virginia, without reference to its principles of conflict of laws or the U.N Convention on Contracts for the International Sale of Goods. The Parties hereby expressly opt-out from the applicability of any State’s version of the Uniform Computer Information Transactions Act (“UCITA”).
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Letter of Authorization To: [...***...] Communications Re: Letter concerning authorization between Vonage Holdings, Inc and NeuStar, Inc. By this letter, Vonage Network Inc. (hereafter, “ESP”) authorizes NeuStar, Inc., (hereafter, “NeuStar”) to act as its limited agent regarding pulling customer service records (“CSRs”) and processing local number portability (“LNP”) orders into and out of ESP’s network with respect to ordering of [...***...] Communications, Inc., [...***...] Communications Services, Inc. or their affiliates (hereinafter collectively “[...***...]”) services. This Letter of Authorization (“LOA”) includes the following functions, but not limited to:
•
Obtain CSR and local service request (“LSR”) information for activating, disconnecting, editing and escalating service orders for
porting numbers onto and out of the ESP network • Obtain information for processing directory listings for ESP orders. • Obtain information for the purposes of resolving technical issues between the company interfaces. • Obtain information for reporting and trending analysis for ESP NeuStar is authorized to act on behalf of ESP with respect to ESP’s subscribers and future subscribers who provide Letters of Authorization to perform services on their behalf. ESP confirms that NeuStar will be explicitly notified that Letters of Authorization have been obtained for each transaction. This limited agency authorization shall become effective from the date written above and shall remain in full force and in effect until terminated by ESR or NewStar upon ten (10) days prior written notice. This letter does not prohibit the Customers from acting on its own behalf. In the event of such revocation ESP and NeuStar shall promptly notify [...***...]. Vonage Network Inc. Acceptance
NeuStar, Inc. Acceptance
/s/ Authorized Signature
/s/ Authorized Signature
Michael Tribolet Name: Print or Type
Michael Markovic Name: Print or Type
EUP Operations Title
Vice President Title
7/22/07 Date
7/25/05 Date
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