1.1 "Brand Features"
Means the trade names, trademarks, service marks, logos, and other distinctive brand features of each party, including those listed in Exhibit E
1.2 "Ticket Tracker"
Means a database system that allows End Users to store and retrieve information about real property management work orders and other requests.
1.3 "End User"
Means a user of the Request Tracking system.
1.4 "Team"
Means an item that gets treated as a single unit for presentation purposes within the Ticket Tracker. For example, a property under management or a condo association constitutes a single Team. A large facility, such as a university may constitute several Teams.
1.5 "Administrator"
Means an End User of the Ticket Tracker that has administration over one or more Teams, including authorization to grant or revoke access privileges to other End Users for Teams; and to carry out any valid transaction against the data pertaining to a Team.
1.6 "Content"
Means all content that is made available to End Users of the Ticket Tracker and that is not provided by Gnosio, including without limitation the data contained within the database.
1.7 "Intellectual Property Rights"
Means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
1.8 "Services"
Means the Request Tracking services to be provided by Gnosio for Customer under this Agreement, as more fully described on Exhibit A.
1.9 "Client"
Means a computer system that sends a message to the Request Tracking system asking that the Request Tracking system perform a task or send a response. Typically, the Client will be a web browser and the request will be something like "show me all unfinished repairs for my property". In some cases the Client request may be asynchronous with the response. For example, send me emails when a new request is logged for my Team.
1.10 "Term"
Shall have the meaning indicated in Section 9.
1.11 "Web"
Means the World Wide Web, including pages written in the hypertext markup language and/or any similar successor technology.
2.3 Customer Obligations
Before commencement of the Services, Customer shall provide Gnosio with:
2.5 Security
Customer shall ensure that passwords selected by End Users are not easily determinable . Gnosio shall have the right to immediately discontinue providing Services to End Users that are suspected to be hackers.
2.6 End-User Support
Customer, at its expense, shall provide first level customer support services to its End Users. Gnosio, at its own expense, shall provide second level technical support services to Customer regarding the Services. Such support services will be provided as set forth in Exhibit D.
2.7 Other Services
Customer may request that Gnosio provide services in addition to or instead of the Services set forth herein (e.g., other hosted applications). Any such service shall be mutually agreed to by the parties in a separate agreement or as an amendment or addenda to this Agreement.
3.2 Payment
Customer shall pay all amounts due under this Agreement to Gnosio, at the address indicated at the beginning of this Agreement, credit card, wire transfer, or such other means as Gnosio designates in writing. Amounts paid after the date originally due shall bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) until paid in full. In the event of any failure by Customer to make payment, Customer will pay all reasonable expenses (including attorneys' fees) incurred by Gnosio in collecting such amounts.
5.2 Customer Rights
As between Gnosio and Customer, Gnosio acknowledges that Customer owns all Intellectual Property Rights in and to Content that is not provided to Customer by Gnosio, and that Gnosio shall not acquire any right, title or interest in or to such Content, except as expressly set forth in this Agreement.
5.3 Brand Feature License
Gnosio hereby grants Customer a nontransferable, non-sublicenseable and nonexclusive license during the Term to display Gnosio's Brand Features for the purpose of promoting or advertising that Customer uses the Services and for the purpose of fulfilling its obligations under section 5.4 below. Customer hereby grants to Gnosio a nontransferable, nonexclusive license during the Term to use Customer's Brand Features to advertise that Customer is using the Services. Each party will submit all materials of any kind containing the other party's Brand Features to the other party before release to the public for inspection, and such other party will have the right to approve such material prior to its distribution. Each party agrees that their respective products and/or services that are associated with the other party's Brand Features shall meet the same general level of quality as is provided by the other party in connection with its own Brand Features. Except as set forth in this Section, nothing in this Agreement shall grant or shall be deemed to grant to one party any right, title or interest in or to the other party's Brand Features. All use by Gnosio of Customer's Brand Features (including any goodwill associated therewith) shall inure to the benefit of Customer and all use by Customer of Gnosio's Brand Features (including any goodwill associated therewith) shall inure to the benefit of Gnosio. At no time during or after the Term of this Agreement shall one party challenge or assist others to challenge the Brand Features of the other party (except to the extent such restriction is prohibited by applicable law) or the registration thereof by the other party, nor shall either party attempt to register any Brand Features or domain names that are confusingly similar to those of the other party.
5.4 Attribution
All Web Pages in the Request Tracking system and Customer's partner page shall conspicuously display a graphic to be provided by Gnosio that indicates that the Services are provided by Gnosio. The graphic on the Customer's partner page only shall link to the Gnosio site located at www.gnosio.com or such other address as Gnosio may designate from time to time during the Term. The specifications for such graphic are set forth in Exhibit C.
5.5 Injunctive Relief
Each party acknowledges that a breach of this Section 5 may cause irreparable harm to the other party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which the other party may be legally entitled, such party shall have the right to seek immediate injunctive relief in the event of a breach of this section by the other party or any of its officers, employees, consultants or other agents.
5.6 Indemnity.
Each party will indemnify, defend, protect and hold the other party harmless from and against all damages, liabilities, costs charges and expenses, including reasonable attorneys fees, suffered or incurred by the other party as a result of or in connection with a breach of this Section 5.
7.2 Termination.
Either party may terminate this Agreement if the other party materially breaches any term or condition of this Agreement and fails to cure that breach within thirty (30) calendar days after receiving written notice terminate this Agreement if Customer breaches its payment obligations under sections 3.1 and/or 3.2 and fails to cure that breach within five (5) calendar days after receiving written notice of such breach.
7.3 Effect of Termination.
Upon the termination of this Agreement for any reason all license rights granted herein shall terminate.
7.4 Survival.
In the event of any termination or expiration of this Agreement for any reason, Articles 1, 3, , 5, 7.4, 8 shall survive termination
(i) by personal delivery when delivered personally,
(ii) by overnight courier upon written verification of receipt,
(iii) by telecopy or facsimile transmission when confirmed by telecopier or facsimile transmission report, or
(iv) by certified or registered mail, return receipt requested, upon verification of receipt.
All notices must be sent to the addresses first described above or to such other address that the receiving party may have provided for the purpose of notice in accordance with this Section. Neither party may assign its rights or delegate its obligations under this Agreement without the other party's prior written consent, except to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets, so long as such surviving entity or purchaser shall expressly assume in writing the performance of all of the terms of this Agreement. This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to conflict of law principles. Venue for any dispute arising out of or in connection with this Agreement shall be in the state and federal counts located in San Francisco County, California. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, acts of God, war, governmental action, or any other cause, which is beyond the reasonable control of such party. Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under this Agreement. The failure of either party to require performance by the other party of any provision shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
This agreement, and exhibits hereto, constitute the entire agreement between the parties with respect to the subject matter hereof. This agreement supersedes, and the terms of this agreement govern, any other prior or collateral agreements with respect to the subject matter hereof. Any amendments to this agreement must be in writing and executed by an officer of the parties.
IN WITNESS WHEREOF, the parties have caused this Information Services Agreement to be signed by their duly authorized representatives.
-------- Customer -------------------------------- GNOSIO INC.-------------
By:________________________________ By:____________________________________
Name:______________________________ Name: _________________________________
Title:_____________________________ Title: ________________________________
Date:______________________________ Date: _________________________________
Gnosio will receive data input from Customer at Gnosio's web-based front end to the request tracking database system (or other front end as Gnosio may implement from time to time with reasonable notice).
Gnosio will process the Customer data input and take appropriate action. Input can include:
* Logging a new customer request
* Adding a comment to an existing customer request
* Marking a customer request as fixed
* Closing a fixed customer request
Gnosio will not be responsible for handling support issues from Customer's End Users, for transmission of data between Customer and Gnosio's network interface.
Gnosio will provide ninety-nine and five-tenths (99.5) percent Service Availability over a rolling thirty (30) day period, as measured and monitored from Gnosio's facilities in San Francisco, California, "Service Availability" is defined as the percentage requests received by Gnosio from Customer that are successfully processed by Gnosio's tracking system. Service Availability does not include Downtime or network outages.
Gnosio will not exceed a Downtime of more than five-tenth (0.5) of a percent over a rolling thirty (30) day period. "Downtime" is defined as any one (1) minute period during which Gnosio's request tracking system processes no queries.
Gnosio shall have the right to modify and revise the Services from time to time.
Service Setup Fee:
Customer shall pay Gnosio a Setup Fee for training, loading initial data and configuring the system of $2,900
Monthly Service Fees:
Customer shall pay Gnosio Monthly Fees, as set forth below, based on the number of Teams.
Up to 25 Teams: $900 per month.
Up to 100 Teams: $1,400 per month.
Up to 200 Teams: $2,200 per month.
Payments:
Monthly Service Fee: First payment is due and payable upon Effective Date. Each month, Gnosio shall bill Customer monthly for the monthly fee at the rates listed above. Payments are due net 30 days from receipt of invoice.
Service Set-Up Fee:
Service Set-Up fee is due and payable upon contract execution.
Wire Transfer Instructions:
(a) Pages within the Ticket Tracker Graphic Size: 62 x 28 pixels Graphic Location: In the page header or mutually acceptable placements
(b) Customer's partner page: Graphic Size: 62 x 28 pixels
Graphic Location: mutually acceptable placement Such Graphic shall link to the Gnosio site located at www.gnosio.com or such other address as Gnosio may designate from time to time during the Term.
Customer may get a Gnosio graphic located on the following page: http://www.gnosio.com/gnosio/images/small-logo.gif
(b) "Consulting Requests" means any request made by Customer to Gnosio Technical Support Personnel that is unique to Customer and is unrelated to a Fix, Minor Problem, or Severe Problem. This includes requests by Customer to incorporate a new feature or enhance an existing feature of the Services.
(c) "Fix" means a correction, fix, alteration or workaround that solves a Minor Problem or a Severe Problem.
(d) "Gnosio Technical Support Personnel" means the employees at Gnosio responsible for handling technical support calls. Gnosio will provide Customer with a web interface or an email address (the "Support Address"), as well as an email pager address (the "Support Pager") for contacting the Gnosio technical support personnel, and an escalation telephone support number. Gnosio will provide Customer with technical contacts. Gnosio may change its designated technical support personnel at its discretion with reasonable notice to Customer.
(e) "Hours of Operation" means 24/7 for Severe Problems and Monday to Friday 9:00 a.m. - 7:00 p.m. Pacific Time for Minor Problems. Gnosio may, at its reasonable discretion, change or expand the hours of operation with reasonable notice to Customer.
(f) "Minor Problem" means any error, bug, or malfunction that makes any feature of Gnosio's search engine perform unpredictably or to otherwise become intermittently unavailable, or that causes Gnosio's Ticket Tracker to have a material degradation in service quality or response time performance.
(g) "Severe Problem" means any error, bug, or malfunction that causes Gnosio's search engine to become inaccessible to Customer and its End Users, or that causes any feature of Gnosio's Ticket Tracker to become continuously unavailable or inaccurate.
2. Support procedures.
Customer will use reasonable efforts to fix any Minor Problems within Customers control without escalation to Gnosio. All Minor and Severe Problems and Consulting Requests must be submitted to Gnosio via the Support Address.
(a) If Customer believes it is reporting a Severe Problem, Customer will accompany its request with a page via the Support Pager.
(b) Upon receiving a request from Customer, Gnosio will determine whether the request is a Minor Problem, a Severe Problem, or a Consulting Request.
(c) If the request is a Severe Problem, Gnosio will attempt to respond to the request within one hour. Gnosio will then use commercially reasonable efforts to fix the Severe Problem and will provide daily status reports to Customer (upon request by Customer).
(d) If the request is a Minor Problem, Gnosio will attempt to respond to the request within one business day. Gnosio will then use commercially reasonable efforts to fix the Minor Problem and will provide weekly status reports to Customer (upon request by Customer).
(e) If the request is a Consulting Request, Gnosio will attempt to respond to the request within ten business days. Should Customer and Gnosio agree to have Gnosio take further action pursuant to the Consulting Request, Customer and Gnosio will negotiate a separate agreement setting forth the terms and conditions for Gnosio's performance of such further action. All time spent by Gnosio in responding to a Consulting Request will be billed to the Customer at Gnosio's then applicable consulting rates and charges.
Customer Brand Features: ______________________________________________________
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