Delaware
(State or Other
Jurisdiction of
Incorporation or Organization)
7371 (Computer Programming
Services)
(Primary Standard
Industrial
Classification Code Number)
06-1594540
(I.R.S. Employer
Identification Number)
Marc F. Dupré
Angela N. Clement Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP 610 Lincoln Street Waltham, Massachusetts 02451 Telephone: (781) 890-8800 Telecopy: (781) 622-1622 |
Keith F. Higgins
Ropes & Gray LLP One International Place Boston, Massachusetts 02110 Telephone: (617) 951-7000 Telecopy: (617) 951-7050 |
The information in this preliminary
prospectus is not complete and may be changed. Neither we nor
the selling stockholders may sell these securities until the
registration statement filed with the Securities and Exchange
Commission is effective. This preliminary prospectus is not an
offer to sell these securities and we are not soliciting offers
to buy these securities in any jurisdiction where the offer or
sale is not permitted.
Proceeds to
Underwriting
Synchronoss
Proceeds to
Price to
Discounts and
Technologies,
Selling
Public
Commissions
Inc.
Stockholders
$
$
$
$
$
$
$
$
Goldman, Sachs & Co.
Deutsche Bank Securities
3
4
5
6
7
Table of Contents
Leading Provider of Transaction Management Solutions to
the Communications Services Market.
We offer what we
believe to be the most advanced
e-commerce
customer
transaction management solution to the communications market.
Our industry leading position is built upon the strength of our
platform and our extensive experience and expertise in
identifying and addressing the complex needs of leading CSPs.
Well Positioned to Benefit from High Industry Growth Areas
and
E-Commerce.
We believe we are positioned to capitalize on the development,
proliferation and convergence of communications services,
including wireless and VoIP and the adoption of
e-commerce
as a
critical customer channel. Our
ActivationNow
®
platform is designed to be flexible and scalable to meet the
demanding requirements of the evolving communications services
industry, allowing us to participate in the highest growth and
most attractive industry segments.
Differentiated Approach to Non-Automated
Processes.
Due to a variety of factors, CSP systems
frequently encounter customer transactions with insufficient
information or other erroneous process elements. These so-called
exceptions, which tend to be particularly common in the early
phases of a service roll-out, require non-automated, often
time-consuming handling. We believe our ability to address what
we refer to as exception handling is one of our key
differentiators. Our solution identifies, corrects and processes
non-automated transactions and exceptions in real-time.
Importantly, as exception handling matures within a service, an
increasing number of transactions can become automated, which
can result in increased operating leverage for our business.
Transaction-Based Model with High Revenue
Visibility.
We believe the characteristics of our
business model enhance the predictability of our revenues. We
are generally the exclusive provider of the services we offer to
our customers and benefit from contracts of 12 to
48 months. The majority of our revenues are
transaction-based, allowing us to gauge future revenues against
patterns of transaction volumes and growth.
Trusted Partner, Deeply Embedded with Major, Influential
Customers.
We provide our services to market-leading
wireline, wireless, cable, broadband and VoIP service providers
Table of Contents
including Cingular Wireless, Vonage Holdings, Cablevision
Systems, Level 3 Communications, Verizon Business,
Clearwire, 360networks, Time Warner Cable, Comcast and AT&T.
The high value-added nature of our services and our proven
performance track record make us an attractive, valuable and
important partner for our customers. Our transaction management
solution is tightly integrated into our customers critical
infrastructure and embedded into their workflows, enabling us to
develop deep and collaborative relationships with them.
On-Demand Offering that Enables Rapid, Cost-Effective
Implementations.
We provide our
e-commerce
customer
transaction management solutions through an on-demand business
model, which enables us to deliver our proprietary technology
over the Internet as a service. Our customers do not have to
make large and risky upfront investments in software, additional
hardware, extensive implementation services and additional IT
staff at their sites.
Experienced Senior Management Team.
Each member of
our senior management team has over 12 years of relevant
industry experience, including prior employment with companies
in the CSP, communications software and communications
infrastructure industries.
Expand Customer Base and Target New and Converged Industry
Segments.
The
ActivationNow
®
platform is designed to address service providers and business
models across the range of the communications services market, a
capability we intend to exploit by targeting new industry
segments such as cable operators, or MSOs, wireless broadband/
WiMAX operators and online content providers. Due to our deep
domain expertise and ability to integrate our services across a
variety of CSP networks, we believe we are well positioned to
provide services to converging technology markets, such as
providers offering integrated packages of voice, video, data
and/or wireless service.
Continue to Exploit VoIP Industry Opportunities.
We believe that customer demand for our existing VoIP services
will continue to grow. Continued rapid VoIP industry growth will
expand the market and demand for our services. Being the trusted
partner to VoIP industry leaders, including Vonage Holdings,
positions us well to benefit from the evolving needs,
requirements and opportunities of the VoIP industry.
Enhance Current Wireless Industry Leadership.
We
currently process hundreds of thousands of wireless transactions
every month, which are driven by increasing wireless subscribers
and wireless subscriber churn resulting from local number
portability, or LNP, service provider competition and other
factors. Beyond traditional wireless service providers, we
believe the fast-growing mobile virtual network operator, or
MVNO, marketplace presents us with attractive growth
opportunities.
Further Penetrate our Existing Customer Base.
We
derive significant growth from our existing customers as they
continue to expand into new distribution channels, require new
service offerings and increase transaction volumes. As CSPs
expand consumer, business and indirect distribution, they
require new transaction management solutions which drive
increasing amounts of transactions over our platform. Many
customers purchase multiple services from us, and we believe we
are well-positioned to cross-sell additional services to
customers who do not currently purchase our full services
portfolio. In addition, the increasing importance and expansion
of Internet-based
e-commerce
has led to
increased focus by CSPs on their
e-channel
distribution,
thus providing another opportunity for us to further penetrate
existing customers.
Table of Contents
Expand Into New Geographic Markets.
Our current
customers operate primarily in North America. We intend to
utilize our extensive experience and expertise in North America
to penetrate new geographic markets.
Maintain Technology Leadership.
We intend to build
upon our technology leadership by continuing to invest in
research and development to increase the automation of processes
and workflows, thus driving increased interest in our solutions
by making it more economical for CSPs to use us as a third party
solutions provider.
Table of Contents
8
9
10
Common stock offered by us
shares.
Common stock offered by the selling stockholders
shares.
Total
shares.
Over-allotment option offered by us
shares.
Over-allotment option offered by the selling stockholders
shares.
Total
shares.
Use of proceeds
Working capital and general corporate purposes. See Use of
Proceeds.
Dividend policy
Currently, we do not anticipate paying cash dividends.
Risk factors
You should read the Risk Factors section of this
prospectus for a discussion of factors that you should consider
carefully before deciding to invest in shares of our common
stock.
Proposed Nasdaq National Market symbol
SNCR
1,079,480 shares of common stock issuable upon exercise of
options outstanding as of December 31, 2005 at a weighted
average exercise price of $1.40 per share;
980,923 shares of common stock reserved as of
December 31, 2005 for future issuance under our stock-based
compensation plans; and
94,828 shares of common stock issuable upon the exercise of
a warrant, with an exercise price of $2.90 per share.
the automatic conversion of all outstanding shares of our
preferred stock into 13,549,256 shares of common stock,
upon the closing of the offering;
the filing of our restated certificate of incorporation and the
adoption of our amended and restated bylaws immediately prior to
the effectiveness of this offering; and
no exercise by the underwriters of their over-allotment option.
Table of Contents
Year Ended December 31,
2003
2004
2005
(in thousands, except per
share data)
$
16,550
$
27,191
$
54,218
7,655
17,688
30,205
3,160
3,324
5,689
4,053
4,340
7,544
2,919
2,127
2,305
17,787
27,479
45,743
(1,237
)
(288
)
8,475
321
320
258
(128
)
(39
)
(133
)
(1,044
)
(7
)
8,600
3,829
(1,044
)
(7
)
12,429
(35
)
(35
)
(34
)
$
(1,079
)
$
(42
)
$
12,395
$
(0.11
)
$
(0.00
)
$
0.53
$
(0.11
)
$
(0.00
)
$
0.47
9,838
10,244
23,508
9,838
10,244
26,204
$
12,429
$
0.49
$
0.47
25,508
26,204
2005
2005
Pro
Pro Forma
2003
2004
2005
Forma
as adjusted
$
13,556
$
10,521
$
16,002
$
16,002
7,944
8,077
21,774
21,774
22,402
22,784
40,208
40,208
(17,783
)
(17,916
)
(4,864
)
30,073
*
Cost of services excludes depreciation and amortization which is
shown separately.
**
See Note 2 in our audited financial statements for the
basis of our EPS presentation.
Table of Contents
Table of Contents
11
12
13
14
damage to or failure of our computer software or hardware or our
connections and outsourced service arrangements with third
parties;
errors in the processing of data by our system;
computer viruses or software defects;
physical or electronic break-ins, sabotage, intentional acts of
vandalism and similar events;
increased capacity demands or changes in systems requirements of
our customers; or
errors by our employees or third-party service providers.
15
16
17
18
19
variations in our operating results;
announcements of technological innovations, new services or
service enhancements, strategic alliances or significant
agreements by us or by our competitors;
the gain or loss of significant customers;
recruitment or departure of key personnel;
20
changes in the estimates of our operating results or changes in
recommendations by any securities analysts that elect to follow
our common stock;
market conditions in our industry, the industries of our
customers and the economy as a whole; and
adoption or modification of regulations, policies, procedures or
programs applicable to our business.
21
22
authorize the issuance of blank check preferred
stock that could be issued by our board of directors to thwart a
takeover attempt;
prohibit cumulative voting in the election of directors, which
would otherwise allow holders of less than a majority of the
stock to elect some directors;
establish a classified board of directors, as a result of which
the successors to the directors whose terms have expired will be
elected to serve from the time of election and qualification
until the third annual meeting following election;
require that directors only be removed from office for cause;
provide that vacancies on the board of directors, including
newly-created directorships, may be filled only by a majority
vote of directors then in office;
limit who may call special meetings of stockholders;
prohibit stockholder action by written consent, requiring all
actions to be taken at a meeting of the stockholders; and
establish advance notice requirements for nominating candidates
for election to the board of directors or for proposing matters
that can be acted upon by stockholders at stockholder meetings.
23
loss of customers;
lack of market acceptance of VoIP and/or government regulation
of VoIP;
our failure to anticipate and adapt to future changes in our
industry;
a lack of growth in communications services transactions on the
Internet;
compromises to our privacy safeguards;
the occurrence of fraudulent internet transactions;
a decline in subscribers in the wireless industry;
our inability to stay profitable;
our inability to expand our sales capabilities;
consolidation in the communications services industry;
competition in our industry and innovation by our competitors;
failures and/or interruptions of our systems and services;
failure to meet obligations under service level agreements;
financial and operating difficulties in the telecommunications
sector;
failure of our third party providers of software, services,
hardware and infrastructure to provide such items;
our failure to protect confidential information;
our inability to protect our intellectual property rights;
claims by others that we infringe their proprietary technology;
our inability to successfully identify and manage our
acquisitions;
our inability to manage expansion into international markets;
our inability to obtain capital in the future on acceptable
terms;
the loss of key personnel or qualified technical staff;
our inability to manage growth;
the increased expenses and administrative workload associated
with being a public company;
government regulation of the Internet and
e-commerce;
and
changes in accounting treatment of stock options.
24
25
26
our actual capitalization as of December 31, 2005;
our pro forma capitalization after giving effect to the
conversion of all outstanding shares of preferred stock into
common stock upon the effectiveness of this offering; and
our pro forma capitalization as adjusted to reflect (i) the
conversion of all outstanding shares of preferred stock into
common stock upon the effectiveness of this offering and
(ii) the receipt of the estimated net proceeds from our
sale
of shares
of common stock in this offering and the filing of a new
certificate of incorporation after the closing of this offering.
As of December 31, 2005
(in thousands)
Pro Forma
Actual
Pro Forma
As Adjusted
$
1,333
$
1,333
33,493
1,444
1
2
(19
)
(19
)
1,661
36,597
(702
)
(702
)
(114
)
(114
)
(5,691
)
(5,691
)
(4,864
)
30,073
$
31,406
$
31,406
27
28
Year Ended December 31,
2001
2002
2003
2004
2005
(in thousands except per share data)
$
5,621
$
8,185
$
16,550
$
27,191
$
54,218
4,876
3,715
7,655
17,688
30,205
3,923
3,029
3,160
3,324
5,689
5,308
5,169
4,053
4,340
7,544
2,138
2,726
2,919
2,127
2,305
16,245
14,639
17,787
27,479
45,743
(10,624
)
(6,454
)
(1,237
)
(288
)
8,475
928
584
321
320
258
(96
)
(184
)
(128
)
(39
)
(133
)
(9,792
)
(6,054
)
(1,044
)
(7
)
8,600
3,829
(9,792
)
(6,054
)
(1,044
)
(7
)
12,429
(33
)
(35
)
(35
)
(35
)
(34
)
$
(9,825
)
$
(6,089
)
$
(1,079
)
$
(42
)
$
12,395
$
(1.29
)
$
(0.68
)
$
(0.11
)
$
(0.00
)
$
0.53
$
(1.29
)
$
(0.68
)
$
(0.11
)
$
(0.00
)
$
0.47
7,594
8,932
9,838
10,244
23,508
7,594
8,932
9,838
10,244
26,204
$
12,429
$
0.49
$
0.47
25,508
26,204
29
2001
2002
2003
2004
2005
$
20,071
$
16,620
$
13,556
$
10,521
$
16,002
12,960
3,802
7,944
8,077
21,774
30,041
22,255
22,402
22,784
40,208
(10,787
)
(16,752
)
(17,783
)
(17,916
)
(4,864
)
*
Cost of services excludes depreciation and amortization which is
shown separately.
**
See Note 2 in our audited financial statements for the
basis of our EPS presentation.
30
31
32
33
34
Retrospective
Number of
Determination
Options Granted
of Fair Value of
Intrinsic
Grant Date
(in thousands)
Exercise Price
Common Stock
Value
207
$
0.45
$
1.84
$
1.39
98
$
0.45
$
6.19
$
5.74
120
$
10.00
$
7.85
$
0.00
35
The expected pre-IPO valuation of the Company
A risk adjusted discount rate associated with the
IPO scenario
As if conversion values for the Series A and
Series 1 shares
Appropriate discount for lack of marketability under both
scenarios for each valuation date given the length of time until
expected IPO
A minority interest discount associated to be applied to the
private company scenario
The expected probability of achieving IPO versus remaining a
private company
Our operating income estimates continued to reflect projections
consistent with the approved business plan;
We achieved our third consecutive quarter of profitability.
The possibility of an initial public offering remained
consistent with our business plan and a relatively low
probability estimate (25%) for the IPO scenario was assumed
under the PWER (probability weighted expected returns) method.
For the six months ended June 30, 2005, revenues and net
income exceeded forecasts in our business plan;
Discussions began with our investment bankers around the
possibility of an initial public offering earlier than
anticipated in our business plan; in light of these discussions,
a higher probability (60%) was assured under the PWER method.
We signed a leading VoIP provider as a new customer.
For the nine months ended September 30, 2005, revenues and
net income exceeded forecasts in our business plan;
During the third quarter we initiated the process of an initial
public offering and began drafting a registration statement; as
a result we increased the probability used under the PWER method
to 75%.
Anticipated renewal of a contract with a large customer for an
additional two years.
2004
2005
2005 vs 2004
% of
% of
$
Revenue
$
Revenue
$ Change
% Change
(in thousands)
$
27,191
100.0
%
$
54,218
100.0
%
$
27,027
99.4
%
17,688
65.1
%
30,205
55.7
%
12,517
70.8
%
3,324
12.2
%
5,689
10.5
%
2,365
71.2
%
4,340
16.0
%
7,544
13.9
%
3,204
73.8
%
2,127
7.8
%
2,305
4.3
%
178
8.4
%
27,479
101.1
%
45,743
84.4
%
18,264
66.5
%
$
(288
)
(1.1
)%
$
8,475
15.6
%
$
8,763
NM
**
* | Cost of services excludes depreciation and amortization which is shown separately. |
** | Not Meaningful. |
Revenue |
36
37
Expense
38
2003
2004
2004 vs 2003
% of
% of
$
Revenue
$
Revenue
$ Change
% Change
(in thousands)
$
16,550
100.0
%
$
27,191
100.0
%
$
10,641
64.3
%
7,655
46.3
%
17,688
65.1
%
10,033
131.1
%
3,160
19.1
%
3,324
12.2
%
164
5.2
%
4,053
24.5
%
4,340
16.0
%
287
7.1
%
2,919
17.6
%
2,127
7.8
%
(792
)
(27.1
)%
17,787
107.5
%
27,479
101.1
%
9,692
54.5
%
$
(1,237
)
(7.5
)%
$
(288
)
(1.1
)%
$
949
NM
**
*
Cost of services excludes depreciation and amortization which is
shown separately.
**
Not Meaningful.
Revenue
Expense
2003
2004
2005
Mar 31
Jun 30
Sept 30
Dec 31
Mar 31
Jun 30
Sept 30
Dec 31
Mar 31
Jun 30
Sept 30
Dec 31
$
3,007
$
3,623
$
4,102
$
5,818
$
5,819
$
6,265
$
6,381
$
8,726
$
11,350
$
13,776
$
14,115
$
14,977
1,098
1,288
1,946
3,323
3,768
4,313
4,141
5,466
6,281
7,947
7,976
8,001
668
818
881
793
877
847
779
821
1,047
1,358
1,614
1,670
979
1,121
915
1,038
982
866
922
1,570
1,796
1,879
1,716
2,153
700
745
806
668
584
542
488
513
510
526
624
645
3,445
3,972
4,548
5,822
6,211
6,568
6,330
8,370
9,634
11,710
11,930
12,469
$
(438
)
$
(349
)
$
(446
)
$
(4
)
$
(392
)
$
(303
)
$
51
$
356
$
1,716
$
2,066
$
2,185
$
2,508
2003 | 2004 | 2005 | ||||||||||||||||||||||||||||||||||||||||||||||
Mar 31 | Jun 30 | Sept 30 | Dec 31 | Mar 31 | Jun 30 | Sept 30 | Dec 31 | Mar 31 | Jun 30 | Sept 30 | Dec 31 | |||||||||||||||||||||||||||||||||||||
Net Revenues
|
100 | % | 100 | % | 100 | % | 100 | % | 100 | % | 100 | % | 100 | % | 100 | % | 100 | % | 100 | % | 100 | % | 100 | % | ||||||||||||||||||||||||
Costs and expenses:
|
||||||||||||||||||||||||||||||||||||||||||||||||
Cost of services*
|
36.5 | % | 35.6 | % | 47.4 | % | 57.1 | % | 64.8 | % | 68.8 | % | 64.9 | % | 62.6 | % | 55.3 | % | 57.7 | % | 56.5 | % | 53.4 | % | ||||||||||||||||||||||||
Research & development
|
22.2 | % | 22.6 | % | 21.5 | % | 13.6 | % | 15.1 | % | 13.5 | % | 12.2 | % | 9.4 | % | 9.2 | % | 9.9 | % | 11.4 | % | 11.1 | % | ||||||||||||||||||||||||
Selling, general &
administrative
|
32.6 | % | 30.9 | % | 22.3 | % | 17.8 | % | 16.9 | % | 13.8 | % | 14.4 | % | 18.0 | % | 15.8 | % | 13.6 | % | 12.2 | % | 14.4 | % | ||||||||||||||||||||||||
Depreciation & amortization
|
23.3 | % | 20.6 | % | 19.6 | % | 11.5 | % | 10.0 | % | 8.7 | % | 7.6 | % | 5.9 | % | 4.5 | % | 3.8 | % | 4.4 | % | 4.3 | % | ||||||||||||||||||||||||
Total costs and expenses
|
114.6 | % | 109.6 | % | 110.9 | % | 100.1 | % | 106.8 | % | 104.8 | % | 99.2 | % | 95.9 | % | 84.9 | % | 85.0 | % | 84.5 | % | 83.3 | % | ||||||||||||||||||||||||
(Loss) Income from
operations
|
(14.6) | % | (9.6) | % | (10.9) | % | (0.1) | % | (6.7) | % | (4.8) | % | 0.8 | % | 4.1 | % | 15.1 | % | 15.0 | % | 15.5 | % | 16.7 | % |
* | Exclusive of depreciation and amortization |
39
40
Less than
More than
Total
1 year
1-3 years
4-5 years
5 Years
$
5,546
$
1,167
$
3,192
$
1,055
$
132
1,431
739
692
350
350
$
7,327
$
2,256
$
3,884
$
1,055
$
132
41
42
43
44
Wireless
The wireless communications
industry has grown rapidly over the past decade due to the
increasing demand from businesses and consumers for mobile and
high-speed or broadband wireless voice and data
systems. The expanding subscriber base and the corresponding
growth in industry revenues have been driven by improved service
quality, greater national and international roaming coverage,
lower prices and the introduction of new messaging, data and
content services. Wireless carriers face increasing competition
and costs to acquire and retain subscribers. For CSPs to remain
competitive and minimize customer churn, transactions such as
activations, number porting, technology migrations, service plan
changes, new feature requests and many others must be made
available seamlessly, conveniently and cost-effectively.
Voice over Internet Protocol
VoIP is
realizing dramatic growth as a leading alternative to
traditional voice services. VoIP enables voice information to be
sent in digital form in discrete packets rather than in the
traditional circuit-committed protocols of the public switched
telephone network, or PSTN. VoIP offers numerous benefits to
both enterprises and consumers including lower cost than
traditional voice services, a common transmission medium for
voice and data (e.g. via broadband subscription to the home) and
integrated applications such as unified messaging. The rapid
growth in VoIP has attracted numerous CSP participants, both
next-generation service providers with packet-based networks and
existing telecom service providers with circuit-switched
networks. This combination of traditional switched and
packet-based network technologies is driving the development of
hybrid and converged networks that create new operational
challenges. VoIP service providers are faced with a highly
competitive environment for customer acquisition and challenges
associated with provisioning new services efficiently and
cost-effectively.
45
New account setup and activations including credit
checks, address validation and equipment availability;
Feature requests adding new functionality to
existing services;
Contract renewals for consumers and enterprises;
Number port requests local number portability;
Customer migration between technologies and
networks; and
Equipment orders wireless handsets, accessories, etc.
Automated:
We designed our
ActivationNow
®
platform to eliminate manual processes and to automate otherwise
labor-intensive tasks, thus improving operating efficiencies and
46
reducing costs. By tracking every order and identifying those
that are not provisioned properly, we substantially reduce the
need for manual intervention. Our technology automatically
guides a customers request for service through the entire
series of required steps.
Reliable:
We are committed to providing
high-quality, dependable services to our customers. To ensure
reliability, system uptime and other service offerings are
guaranteed through our commitment to service level agreements,
or SLAs. Our product is a complete customer management solution,
including exception handling, which we believe is one of the
main factors that differentiates us from our competitors. In
performing exception handling, our software platform recognizes
and isolates transaction orders that are not configured to
specifications, processes them in a timely manner and
communicates these orders back to our customers, thereby
improving efficiency and reducing backlog. If manual
intervention is required, our exception handling is outsourced
to centers located in India, Canada and the United States. In
addition, our database design preserves data integrity while
ensuring fast, efficient, transaction-oriented data retrieval
methods. As a demonstration of resilience, the database design
has remained constant during the life and evolution of other
components of the software platform. This stability provides
reusability of the business functionality as new, updated
graphical user interfaces are developed.
Seamless:
Our
ActivationNow
®
platform integrates information across the service
providers entire operation, including customer
information, order information, product and service information,
network inventory and workflow information. We have built our
ActivationNow
®
platform using an open design with fully-documented software
interfaces, commonly referred to as application programming
interfaces, or APIs. Our APIs make it easier for our customers,
partners and other third parties to integrate the
ActivationNow
®
platform with other software applications and to build Web-based
applications incorporating third-party or CSP designed
capabilities. Through our open design and alliance program, we
provide our customers with superior solutions that combine
best-of
-breed
applications with the efficiency and cost-effectiveness of
commercial, packaged interfaces.
Scalable:
Our
ActivationNow
®
platform is designed to process expanding transaction volumes
reliably and cost-effectively. Transaction volume has increased
rapidly since our inception. For 2005, we managed
5.3 million transactions, compared to 1.6 million for
the same period in 2004. We anticipate substantial future growth
in transaction volumes and believe our platform is capable of
scaling its output commensurately, requiring principally routine
computer hardware and software updates. In addition, our
platform enables service providers to offer a variety of
services more quickly and to package and price their services
cost-effectively by integrating them with available network
capacity and resources.
Value-added:
Our
ActivationNow
®
platform attributes are tightly integrated into the critical
workflows of our customers. The
ActivationNow
®
platform has analytical reporting capabilities that provide
real-time information for every step of the relevant transaction
processes. In addition to improving end-user customer
satisfaction, these capabilities provide our customers with
value-added insights into historical and current transaction
trends. We also offer mobile reporting capabilities for key
users to receive critical data about their
e-commerce
transactions
on their mobile devices.
47
Growth in wireless services.
Wireless subscribers
and services have grown rapidly in recent years. According to
In-Stat/ MDR, the global wireless market is expected to add an
average of 186 million new subscribers each year, resulting
in a total wireless population of more than 2 billion by
2007. Not only are more people using wireless phones, but there
are entirely new kinds of wireless service providers entering
the market, such as mobile virtual network operators (MVNO). An
MVNO is a mobile operator that does not own its own spectrum and
usually does not have its own network infrastructure, instead
relying on business arrangements with traditional mobile
operators. Demand for advanced services in the United States,
such as next generation wireless technology for multi-media
voice and content delivery, grew at a compound annual rate of
36% from 56.7 million users in 2004 to 77.2 million
users in 2005, according to Yankee Group. We believe that the
next-generation of wireless services and fast-growing MVNO
marketplace present us with excellent growth opportunities.
According to the Yankee Group, by 2010 the MVNO market will
comprise more than 10 million subscribers with
$10.7 billion in service provider revenues.
Adoption of VoIP.
Internet Protocol-based network
technologies are transforming the communications marketplace and
VoIP applications are just starting to be deployed. The total
number of residential US VoIP customers is expected to grow from
3 million in 2005 to 27 million in 2009, representing
a compound annual growth rate of 173% according to IDC. This
forecast is further supported by Gartner, who predicts that
consumer VoIP services spending in the United States will jump
from $1.9 billion in 2005 to $9.5 billion in 2008. Our
strong 2005 market capture across new entrants, cable companies,
and traditional communications providers positions us well to
leverage our existing base and maximize capture of new
transaction types.
Continued growth of
e-commerce.
Internet-based commerce provides CSPs with the opportunity to
cost-effectively gain new customers, provide service and
interact more effectively. Forrester Research projects
e-commerce sales in the United States to grow from $172 billion
in 2005 to $329 billion in 2010. With the dramatic increase in
Internet usage and desire to directly connect with end-users
over the course of the customer lifecycle, CSPs are increasingly
focusing on
e-commerce
as a channel for customer acquisition and delivery of ongoing
services.
48
Growth in on-demand software delivery model.
Our
on-demand business model enables delivery of proprietary
software solutions over the Internet as a service. Customers do
not have to make large and risky upfront investments in
software, additional hardware, extensive implementation services
and additional IT staff. Because we implement all upgrades to
software on our servers, they automatically become part of our
service and available to benefit all customers immediately.
According to International Data Corporation, or IDC, the
on-demand software market in the United States is expected to
grow from $3 billion in 2003 to $9 billion by 2008, a
compound annual rate of 25%.
Pressure on CSPs to improve efficiency.
Increased
competition and excess network capacity have placed significant
pressure on CSPs to reduce costs and increase revenues. At the
same time, due to deregulation, the emergence of new network
technologies and the proliferation of services, the complexity
of back-office operations has increased significantly. As a
result, CSPs are looking for ways to offer new communications
services more rapidly and efficiently to existing and new
customers. CSPs are increasingly turning to transaction-based,
cost-effective, scalable and automated third-party solutions
that can offer guaranteed levels of service delivery.
Leading Provider of Transaction Management Solutions to
the Communications Services Market.
We offer what we
believe to be the most advanced
e-commerce
customer
transaction management solution to the communications markets.
Our industry leading position is built upon the strength of our
platform and our extensive experience and expertise in
identifying and addressing the complex needs of leading CSPs. We
believe our customer transaction management solution is uniquely
effective in enabling service providers to offer B2C and B2B
e-commerce
provisioning
solutions and rapidly deploy new services, which many of our
competitors are unable to offer or offer as efficiently or
cost-effectively. We also provide customers with real-time
workflow information at every step of the transaction process,
allowing visibility into the entire customer experience. Our
established and collaborative relationships with respected and
innovative service providers such as Cingular Wireless and
Vonage Holdings are indicators of, and contributors to, our
industry-leading position.
Well Positioned to Benefit from High Industry Growth Areas
and
E-Commerce.
We believe we are positioned to capitalize on the development,
proliferation and convergence of communications services,
including wireless and VoIP and the adoption of
e-commerce
as a
critical customer channel. Our
ActivationNow
®
platform is designed to be flexible and scalable to meet the
demanding requirements of the evolving communications services
industry, allowing us to participate in the highest growth and
most attractive industry segments. We intend to leverage the
flexibility and scalability of the platform and our track record
of serving existing customers to extend our services in pursuit
of opportunities arising from additional technologies and
business models, including cable operators (MSOs), WiMAX
operators, MVNOs and online content providers.
Differentiated Approach to Non-Automated
Processes.
Due to a variety of factors, CSP systems
frequently encounter customer transactions with insufficient
information or other erroneous process elements. These so-called
exceptions, which tend to be particularly common in the early
phases of a service roll-out, require non-automated, often time
consuming handling. We believe our ability to address what we
refer to as exception handling is one of our key
differentiators. Our solution identifies, corrects and processes
non-automated transactions and exceptions in real-time. Our
exception handling service is designed to consistently meet SLAs
for transactions that are not fully automated. Critical
functions provided by our exception handling service center
include streamlining operations by reducing the number of
transactions processed with human interaction. Importantly, as
exception handling matures within a service, an increasing
number of transactions can become automated, which can result in
increased operating leverage for our business.
49
Transaction-Based Model with High Revenue
Visibility.
We believe the characteristics of our
business model enhance the predictability of our revenues. We
are generally the exclusive provider of the services we offer to
our customers and benefit from contracts of 12 to
48 months. All of our significant customers may terminate
their contracts for convenience upon written notice and payment
of contractual penalties. The majority of our revenues is
transaction-based, allowing us to gauge future revenues against
patterns of transaction volumes and growth. In addition, our
customers provide us monthly rolling transaction forecasts and
our contracts guarantee us the higher of (i) a percentage
ranging from 75%-90% of these forecasts and (ii) certain
specified monthly minimum revenues levels. We have also grown
our revenues rapidly, at a 76% compound annual growth rate from
2001-2005. Our platform and systems are designed to accommodate
further substantial increases in transaction volumes and
transaction types. Our ability to leverage our technology to
serve additional customers and develop new product offerings has
enabled us to reduce costs and increase operating margins, a
trend which we expect to continue.
Trusted Partner, Deeply Embedded with Major, Influential
Customers.
We provide our services to market-leading
wireline, wireless, cable, broadband and VoIP service providers
including Cingular Wireless, Vonage Holdings, Cablevision
Systems, Level 3 Communications, Verizon Business,
Clearwire, 360networks, Time Warner Cable, Comcast and AT&T.
The high value-added nature of our services and our proven
performance track record make us an attractive, valuable and
important partner for our customers. Our transaction management
solution is tightly integrated into our customers critical
infrastructure and embedded into their workflows, enabling us to
develop deep and collaborative relationships with them. We
believe this leads to higher reliability and more tailored
product offerings with reduced development times and decreases
the risk of our customers defecting to competing platforms. We
work to deepen our customer relationships through on-going
consultation, including quarterly customer advisory councils or
discussion groups. This helps us to deliver higher quality
services to our existing customers and anticipate the evolving
requirements of the industry as a whole.
On-Demand Offering that Enables Rapid, Cost-Effective
Implementations.
We provide our
e-commerce
customer
transaction management solutions through an on-demand business
model, which enables us to deliver our proprietary technology
over the Internet as a service. Our customers do not have to
make large and risky upfront investments in software, additional
hardware, extensive implementation services and additional IT
staff at the their sites. This increases the attractiveness of
our transaction management solution to CSPs. Our expertise in
the CSP marketplace coupled with our open, scalable and secure
multi-tenant application architecture enables rapid
implementations and allows us to serve customers
cost-effectively. In addition, because all upgrades to our
software technology are implemented by us on our servers, they
automatically become part of our service and therefore benefit
all of our customers immediately. This typically results in a
lower total cost of ownership and increased return on investment
for our customers, as well as an infrastructure that can easily
be manipulated to provide our customers a rapid time to market
with new services by leveraging our interfaces to a plethora of
Operational Support Systems (OSS) and Business Support Systems
(BSS) of Service Providers.
Experienced Senior Management Team.
Each member of
our senior management team has over 12 years of relevant
industry experience, including prior employment with companies
in the CSP, communications software, and communications
infrastructure industries. This experience has enabled us to
develop strong relationships with our customers. Our senior
management team has been working together for the last three to
seven years, with Messrs. Waldis, Berry and Garcia having
worked together at Vertek Corporation prior to joining
Synchronoss. The collective experience of the Synchronoss
management team has also resulted in the receipt of various
awards, the most recent of which include the New Jersey
Technology Council 2005 Software/ Information Technology Company
of the Year and the
50
naming of Synchronoss as one of the 50 fastest growing companies
in New Jersey for 2005 by NJBiz. In addition, Mr. Waldis
was named as the Ernst &Young Entrepreneur of the Year
in 2004 in Pennsylvania.
Expand Customer Base and Target New and Converged Industry
Segments.
The
ActivationNow
®
platform is designed to address service providers and business
models across the range of the communications services market, a
capability we intend to exploit by targeting new industry
segments such as cable operators (MSOs), wireless broadband/
WiMAX operators and online content providers. Due to our deep
domain expertise and ability to integrate our services across a
variety of CSP networks, we believe we are well positioned to
provide services to converging technology markets, such as
providers offering integrated packages of voice, video, data
and/or wireless service.
Continue to Exploit VoIP Industry Opportunities.
Continued rapid VoIP industry growth will expand the market and
demand for our services. Being the trusted partner to VoIP
industry leaders, including Vonage Holdings, Time Warner Cable
and Cablevision, positions us well to benefit from the evolving
needs, requirements and opportunities of the VoIP industry.
TeleGeographys VoIP 2005 Second Quarter Market Update
reported that the number of voice-over-broadband subscribers
increased 40% in the second quarter of 2005, from
1.9 million to 2.7 million. Voice-over-Broadband, or
VoB, is a relatively new service offering based on VoIP
technology. According to the same source, VoB subscribers have
grown 600% since the second quarter of 2004, when only 440,000
VoIP lines were in service. Quarterly voice-over-broadband
revenues grew from $151 million in the first quarter of
2005 to $220 million in the second quarter of 2005 and
revenues have grown 655% since the second quarter of 2004, when
voice-over-broadband subscribers generated just
$33 million. This information is consistent with the
Infonetics Research projection of VoIP subscribers in the North
American market growing to over 24 million subscribers in
2008.
Enhance Current Wireless Industry Leadership.
Spending in the global wireless industry has grown significantly
in recent years. A Telecommunications Industry Association (TIA)
report states that spending in the US wireless market grew at a
double-digit growth rate in 2004. By 2008, the sector is
expected to have revenues of $212.5 billion representing a
10 percent compound annual growth rate from 2005 to 2008.
The up-tick in spending is happening because myriad advanced
applications are being offered, including wireless Internet
access, multimedia messaging, games and Wi-Fi. These
applications translate into new transaction types that we can
meld into our workflow management system.
We currently process hundreds of thousands of wireless
transactions every month, which are driven by increasing
wireless subscribers and wireless subscriber churn resulting
from local number portability, service provider competition and
other factors. Beyond traditional wireless service providers, we
believe the fast-growing mobile virtual network operator, or
MVNO, marketplace presents us with attractive growth
opportunities. We believe that our ability to enable rapid
time-to
-market through
deep domain expertise sets us apart from our competition in
attracting potential MVNO customers.
Further Penetrate our Existing Customer Base.
We
derive significant growth from our existing customers as they
continue to expand into new distribution channels, require new
service offerings and increase transaction volumes. As CSPs
expand consumer, business and indirect distribution they require
new transaction management solutions which drive increasing
amounts of transactions over our platform. Many customers
purchase multiple services from us,
51
and we believe we are well-positioned to cross-sell additional
services to customers who do not currently purchase our full
services portfolio. In addition, the increasing importance and
expansion of Internet-based
e-commerce
has led to
increased focus by CSPs on their
e-channel
distribution,
thus providing another opportunity for us to further penetrate
existing customers.
Expand Into New Geographic Markets.
Our current
customers operate primarily in North America. We believe there
is an opportunity for us to obtain new customers outside of
North America. We currently intend to take our business global
by penetrating new geographic markets within the next two years,
particularly Europe, Asia/ Pacific and Latin America, as these
markets experience similar trends to those that have driven
growth in North America.
Maintain Technology Leadership.
Our proprietary
technology allows CSPs to bring together disparate systems and
manage the ordering, activation and provisioning of
communications services, allowing them to lower the cost of new
customer acquisition and product lifecycle management. We intend
to build upon our technology leadership by continuing to invest
in research and development to increase the automation of
processes and workflows, thus driving increased interest in our
solutions by making it more economical for CSPs to use us as a
third party solutions provider. In addition, we believe our
close relationships with our tier one CSPs will continue to
provide us with valuable insights into the challenges that are
creating demand for next-generation solutions.
Provides what we believe to be one of the lowest cost per gross
adds in the wireless
e-commerce
market;
Handles extraordinary transaction volumes with our scalable
platform;
Delivers speed to market on new and existing offerings; and
Guarantees performance backed by solid business metrics and SLAs.
52
PerformancePartner
®
Portal
Gateway Manager
WorkFlow Manager
53
Flexible configuration to meet individual CSP requirements;
Centralized queue management for maximum productivity;
Real-time visibility for transaction revenues management;
Exception handling management;
Order view available during each stage of the transactional
process; and
Uniform look and integrated experience.
Real-Time Visibility Manager
A centralized reporting platform that provides intelligent
analytics around entire workflow;
Transaction management information;
Historical trending; and
Mobile reporting for key users to receive critical
e-commerce
transaction
data on mobile devices.
54
55
56
the breadth and depth of our transaction management solutions,
including our exception handling technology;
the quality and performance of our product;
our high-quality customer service;
our ability to implement and integrate solutions;
the overall value of our software; and
the references of our customers.
57
7 were in sales and marketing;
45 were in research and development;
10 were in finance and administration; and
55 were in operations.
Name
Age
Position
38
Chairman of the Board of Directors,
President and Chief Executive Officer
49
Chief Financial Officer and
Treasurer
40
Vice President and Chief Technology
Officer
37
Executive Vice President of Product
Management and Service Delivery
44
Executive Vice President of
Operations
36
Executive Vice President of Sales
57
Director
49
Director
46
Director
33
Director
(1) | Member of Audit Committee. |
(2) | Member of Compensation Committee. |
(3) | Member of Nomination and Corporate Governance Committee. |
58
59
60
61
62
63
for any breach of the directors duty of loyalty to us or
our stockholders;
for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
in respect of unlawful payments of dividends or unlawful stock
repurchases or redemptions as provided in Section 174 of
the Delaware General Corporation Law; or
for any transaction from which the director derives any improper
personal benefit.
Annual Compensation
All Other
Other Annual
Compensation(1)
Name and Principal
Salary
Bonus
Compensation
Position
Year
$
$
($)
$
2005
249,984
652,789
1,500
Chairman of the Board of
Directors,
President and Chief Executive Officer
2005
210,000
233,283
1,500
Chief Financial Officer and
Treasurer
2005
200,000
227,783
1,500
Vice President and
Chief Technology Officer
2005
197,083
272,550
84,239
(3)
1,500
Executive Vice
President of Product Management and
Service Delivery
2005
204,000
227,709
1,500
Executive Vice President of
Operations
(1) | The amount shown under All Other Compensation in the table above represents 401(k) matching contributions. |
(2) | No restricted stock grants were made to our named officers during the year. As of December 31, 2005, Mr. Irving held 4,839 restricted shares of our common stock, which had a value as of that date of $21,000, based on the determination by our board of directors of fair market value of our common stock as of December 31, 2005. As of December 31, 2005, Mr. Halis held 40,644 restricted shares of our common stock, which had a value as of that date of $251,832. In each case, the purchaser shall vest with respect to the number of shares that would vest over a 12-month period if Synchronoss is subject to a change in control before the purchasers service terminates and the purchaser is subject to an involuntary termination within 12 months following such change in control. |
(3) | The amount shown under Other Annual Compensation in the table above represents relocation expenses paid by the Company. |
64
65
Number of Securities
Underlying Unexercised
Value of Unexercised
Options at
In-the-Money Options at
December 31, 2005
December 31, 2005
Name
Exercisable
Unexercisable
Exercisable
Unexercisable
30,000
[ ]
110,000
[ ]
shares; or
% of
the shares of common stock outstanding at that time.
66
incentive and nonstatutory stock options to purchase shares of
our common stock;
restricted shares of our common stock; and
stock appreciation rights and stock units.
cash;
shares of common stock that the optionee already owns;
a full-recourse promissory note, but this form of payment is not
available to executive officers or directors;
an immediate sale of the option shares through a broker
designated by us; or
a loan from a broker designated by us, secured by the option
shares.
cash;
a full-recourse promissory note;
services already provided to us; and
in the case of treasury shares only, services to be provided to
us in the future.
67
a merger of Synchronoss after which our own stockholders own 50%
or less of the surviving corporation or its parent company;
a sale of all or substantially all of our assets;
a proxy contest that results in the replacement of more than
one-half of our directors over a
24-month
period; or
an acquisition of 50% or more of our outstanding stock by any
person or group, other than a person related to Synchronoss,
such as a holding company owned by our stockholders.
Each non-employee director who first joins our board of
directors after the effective date of the 2006 Equity Incentive
Plan will receive an initial option for 25,000 shares. The
initial grant of this option will occur when the director takes
office. The option will vest in three equal annual installments.
Each January beginning with January of 2007, each non-employee
director who will continue to be a director after that meeting
will automatically be granted an option for 10,000 shares
of our common stock. However, a new non-employee director who is
receiving the initial option will not receive this option in the
same calendar year. The option will vest in equal monthly
installments over the one-year period following the option grant.
A non-employee directors option granted under this program
will become fully vested upon a change in control of Synchronoss.
The exercise price of each non-employee directors option
will be equal to the fair market value of our common stock on
the option grant date. A director may pay the exercise price by
using cash, shares of common stock that the director already
owns, or an immediate sale of the option shares through a broker
designated by us. The non-employee directors options have
a
10-year
term, except
that they expire one year after the director leaves the board of
directors.
68
the fair market value per share of common stock on the date
immediately before the first day of the applicable offering
period, or
the fair market value per share of common stock on the purchase
date.
69
compensation arrangements, which are described where required
under Management; and
the transactions described below.
70
Number of
Indebtedness
Principal
Shares Acquired
Date of
as of
Indebtedness
Name & Title
Amount
with Loan
Loan
5/31/05*
as of 6/30/05
$
325,003
1,120,700
1/26/01
$
195,701
$ 0
Chairman of the Board of Directors,
President and Chief Executive Officer
$
68,078
234,750
6/1/01
$
81,758
$ 0
Chief Financial Officer and
$
22,454
77,428
7/9/02
$
24,311
$ 0
Treasurer
$
31,000
155,000
10/27/00
$
39,979
$ 0
Vice President and Chief
$
5,800
20,000
1/26/01
$
7,288
$ 0
Technology Officer
$
113,152
390,178
7/9/02
$
122,512
$ 0
Executive Vice President of
Operations
$
6,200
31,000
10/27/00
$
7,996
$ 0
Executive Vice President of Product
Management and Service Delivery
*
Such amount is the largest aggregate indebtedness outstanding to
the Registrant during 2005, the last fiscal year.
71
Purchase
Price of
Interest in
Rumson
Indirect Equity
Hitters,
Name
Position with Synchronoss
Interest in Omniglobe
L.L.C.
Chairman of the Board
12.23
%
$
95,000
of Directors, President
and Chief Executive Officer
Chief Financial Officer
2.58
%
$
20,000
and Treasurer
Vice President and Chief
2.58
%
$
20,000
Technology Officer
Executive Vice President
1.29
%
$
10,000
of Product Management and Service
Delivery
72
each stockholder, or group of affiliated stockholders, that we
know owns more than 5% of our outstanding capital stock;
each of our named executive officers;
each of our directors;
all of our directors and executive officers as a group; and
each selling stockholder.
Shares Beneficially
Shares Beneficially
Owned Prior to
Owned After
Offering
Offering
Name and Address of Beneficial
Shares Being
Owner
Number
Percent
Offered(1)
Number
Percent
3,793,104
15.8
%
%
890 Winter Street, Suite 225
Waltham, MA 02451
2,000,000
8.3
%
463 Mountain View Drive
Colchester, VT 05446
2,579,498
10.7
%
One Maritime Plaza, Suite 1401
San Francisco, CA 94111
1,256,483
5.2
%
255 State Street, 5th Floor
Boston, MA 02109
73
Shares Beneficially
Shares Beneficially
Owned Prior to
Owned After
Offering
Offering
Name and Address of Beneficial
Shares Being
Owner
Number
Percent
Offered(1)
Number
Percent
4,852,086
20.2
%
%
2,352,624
9.8
%
4,852,086
20.2
%
%
3,793,104
15.8
%
%
2,352,624
9.8
%
390,178
1.6
%
282,178
1.2
%
%
205,000
0.9
%
125,429
0.5
%
%
40,000
0.2
%
8,621
12,049,220
49.8
%
*
Less than 1% of the outstanding shares of common stock.
(1)
Does not include shares subject to the underwriters
over-allotment option.
(2)
Consists of 3,751,830 shares held by ABS Ventures VI L.L.C.
and 41,274 shares held by ABS Investors L.L.C.
Mr. Yaphe, one of our directors, is a member of Calvert
Capital IV, LLC which holds voting and dispositive
power for the shares held of record by ABS Ventures VI L.L.C. He
is also a member of ABS Investors L.L.C.
Mr. Yaphe disclaims beneficial ownership of the shares held
by each of the ABS Ventures funds, except to the extent of his
pecuniary interest therein. Mr. Yaphe has no voting or
dispositive control in either of the ABS Ventures funds.
(3)
Mr. McCormick, one of our directors, is the Chief Executive
Officer and the sole stockholder of Vertek Corporation.
(4)
Consists of 2,138,295 shares held by Rosewood
Capital IV, L.P., 420,970 shares held by Rosewood
Capital III, L.P. and 20,233 shares held by Rosewood
Capital IV Associates, L.P.
(5)
Excludes 889,000 shares held in two separate trusts for the
benefit of certain of his family members, as to which he has no
voting or investment power and disclaims beneficial ownership.
(6)
Includes 413,448 shares held by the Waldis Family Partnership,
LP.
(7)
Includes 30,000 shares of common stock issuable upon
exercise of options exercisable within 60 days of
December 31, 2005.
(8)
Includes 110,000 shares of common stock issuable upon
exercise of options exercisable within 60 days of
December 31, 2005.
(9)
Consists of shares of common stock issuable upon exercise of
options exercisable within 60 days of December 31,
2005.
(10)
Includes 180,000 shares of common stock issuable upon
exercise of options exercisable within 60 days of
December 31, 2005.
74
75
our acquisition by means of a tender offer;
our acquisition by means of a proxy contest or
otherwise; or
removal of our incumbent officers and directors.
76
77
Shares Eligible for
Days After Date of this Prospectus
Sale
Comment
Shares sold in the offering
Freely tradable shares saleable
under Rule 144(k) that are not subject to the lock-up
Shares saleable under
Rules 144 and 701 that are not subject to a lock-up
23,199,839
Lock-up released, subject to
extension; shares saleable under Rules 144 and 701
830,000
Restricted securities held for one
year or less
78
1% of the number of shares of common stock then outstanding
which will equal
approximately shares
immediately after this offering; or
the average weekly trading volume of the common stock during the
four calendar weeks preceding the filing of a Form 144 with
respect to such sale.
79
Underwriters
Number of Shares
Paid by the Company | No Exercise | Full Exercise | ||||||
Per Share
|
$ | $ | ||||||
Total
|
$ | $ |
Paid by the Selling Stockholders | No Exercise | Full Exercise | ||||||
Per Share
|
$ | $ | ||||||
Total
|
$ | $ |
80
81
82
(a) it has not made or will not make an offer of shares to
the public in the United Kingdom within the meaning of
section 102B of the Financial Services and Markets Act 2000
(as amended) (FSMA) except to legal entities which are
authorised or regulated to operate in the financial markets or,
if not so authorised or regulated, whose corporate purpose is
solely to invest in securities or otherwise in circumstances
which do not require the publication by the company of a
prospectus pursuant to the Prospectus Rules of the Financial
Services Authority (FSA);
(b) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity
(within the meaning of section 21 of FSMA) to persons who
have professional experience in matters relating to investments
falling within Article 19(5) of the Financial Services and
Markets Act 2000 (Financial Promotion) Order 2005 or in
circumstances in which section 21 of FSMA does not apply to
the Issuer; and
(c) it has complied with, and will comply with all
applicable provisions of FSMA with respect to anything done by
it in relation to the shares in, from or otherwise involving the
United Kingdom.
(a) to legal entities which are authorised or regulated to
operate in the financial markets or, if not so authorised or
regulated, whose corporate purpose is solely to invest in
securities;
(b) to any legal entity which has two or more of
(1) an average of at least 250 employees during the last
financial year; (2) a total balance sheet of more than
43,000,000 and
(3) an annual net turnover of more than
50,000,000, as shown in its last annual or
accounts; or
(c) in any other circumstances which do not require the
publication by the Issuer of a prospectus pursuant to
Article 3 of the Prospectus Directive.
83
84
F-2
F-3
F-4
F-5
F-6
F-7
II-3
EX-10.10: CINGULAR MASTER SERVICES AGREEMENT
F-1
F-2
/s/ Ernst & Young LLP
December 31,
2005
2004
2005
Pro Forma
$
3,404
$
8,786
$
8,786
1,193
4,152
4,152
7,245
13,092
13,092
699
1,189
1,189
4,024
4,024
12,541
31,243
31,243
4,098
4,207
4,207
5,924
3,064
3,064
620
620
221
1,074
1,074
$
22,784
$
40,208
$
40,208
$
999
$
1,822
$
1,822
2,167
6,187
6,187
667
667
667
631
793
793
4,464
9,469
9,469
1,333
666
666
33,459
33,493
1,444
1,444
1
1
2
(19
)
(19
)
(19
)
869
1,661
36,597
(702
)
(702
)
(536
)
(111
)
(114
)
(114
)
(18,120
)
(5,691
)
(5,691
)
(17,916
)
(4,864
)
30,073
$
22,784
$
40,208
$
40,208
F-3
Year Ended December 31,
2003
2004
2005
$
16,550
$
27,191
$
54,218
7,655
17,688
30,205
3,160
3,324
5,689
4,053
4,340
7,544
2,919
2,127
2,305
17,787
27,479
45,743
(1,237
)
(288
)
8,475
321
320
258
(128
)
(39
)
(133
)
(1,044
)
(7
)
8,600
3,829
(1,044
)
(7
)
12,429
(35
)
(35
)
(34
)
$
(1,079
)
$
(42
)
$
12,395
$
(0.11
)
$
(0.00
)
$
0.53
$
(0.11
)
$
(0.00
)
$
0.47
9,838
10,244
23,508
9,838
10,244
26,204
$
12,429
$
0.49
$
0.47
25,508
26,204
* | Cost of services excludes depreciation and amortization which is shown separately. |
F-4
Stock
Accumulated
Common Stock
Treasury Stock
Additional
Subscription
Deferred Stock
Other
Total
Paid-In
Notes from
Based
Comprehensive
Accumulated
Stockholders
Shares
Amount
Shares
Amount
Capital
Stockholders
Compensation
Loss
Deficit
Deficiency
10,501
$
1
(96
)
$
(19
)
$
939
$
(602
)
$
$
$
(17,069
)
$
(16,750
)
(28
)
(28
)
(35
)
(35
)
74
74
(1,044
)
(1,044
)
10,501
1
(96
)
(19
)
904
(556
)
(18,113
)
(17,783
)
(30
)
(30
)
(35
)
(35
)
50
50
2
(7
)
(7
)
(111
)
(111
)
(118
)
10,503
1
(96
)
(19
)
869
(536
)
(111
)
(18,120
)
(17,916
)
(9
)
(9
)
847
(847
)
120
120
(25
)
25
(34
)
(34
)
545
545
15
4
4
12,429
12,429
(3
)
(3
)
12,426
10,518
$
1
(96
)
$
(19
)
$
1,661
$
$
(702
)
$
(114
)
$
(5,691
)
$
(4,864
)
F-5
Year Ended December 31,
2003
2004
2005
$
(1,044
)
$
(7
)
$
12,429
2,919
2,127
2,305
(4,644
)
137
(123
)
21
120
47
(28
)
(30
)
(4,658
)
(1,790
)
(5,868
)
(333
)
(239
)
(490
)
21
(109
)
(853
)
1,237
(579
)
823
988
(253
)
3,842
9
399
178
1,075
(427
)
(1,044
)
162
(57
)
(1,648
)
8,025
(2,419
)
(3,282
)
(2,414
)
75
50
545
(778
)
(2,959
)
2,961
1,396
2,848
(161
)
(1,836
)
(1,980
)
2,000
4
(663
)
(42
)
(667
)
(663
)
1,958
(663
)
(881
)
(1,526
)
5,382
5,811
4,930
3,404
$
4,930
$
3,404
$
8,786
$
81
$
39
$
133
$
$
$
$
35
$
35
$
34
F-6
F-7
1.
Description of Business
2.
Summary of Significant Accounting Policies
F-8
F-9
F-10
F-11
Year Ended December 31,
2003
2004
2005
$
(1,079
)
$
(42
)
$
12,395
155
(4
)
(7
)
(139
)
$
(1,083
)
$
(49
)
$
12,411
$
(0.11
)
$
(0.00
)
$
0.53
$
(0.11
)
$
(0.00
)
$
0.53
$
(0.11
)
$
(0.00
)
$
0.47
$
(0.11
)
$
(0.00
)
$
0.47
Employee
Stock Options
Year Ended
December 31,
2003
2004
2005
6.5
7.0
5.0
4.26
%
3.92
%
4.38
%
0.00
%
0.00
%
0.00
%
F-12
Year Ended December 31,
2003
2004
2005
$
(1,044
)
$
(7
)
$
12,429
(35
)
(35
)
(34
)
$
(1,079
)
$
(42
)
$
12,395
9,838
10,244
11,959
11,549
9,838
10,244
23,508
46
650
2,000
9,838
10,244
26,204
Pro forma
|
||||||||||||||
Numerator:
|
||||||||||||||
Net income
|
$ | 12,429 | ||||||||||||
Denominator:
|
||||||||||||||
Historical weighted average common
shares outstanding basic
|
23,508 | |||||||||||||
Assumed conversion of preferred
stock into common stock
|
2,000 | |||||||||||||
Pro forma weighted average common
shares outstanding basic
|
25,508 | |||||||||||||
Dilutive effect of:
|
||||||||||||||
Unvested restricted shares
|
46 | |||||||||||||
Stock options and warrants for the
purchase of common stock
|
650 | |||||||||||||
Pro forma weighted average common
shares outstanding diluted
|
26,204 | |||||||||||||
F-13
F-14
3.
Investments in Marketable Securities
Gross
Gross
Unrealized
Unrealized
Fair
Cost
Gains
Losses
Value
$
3,416
$
$
(60
)
$
3,356
3,914
(54
)
3,860
$
7,330
$
$
(114
)
$
7,216
$
3,916
$
$
(77
)
$
3,839
3,312
(34
)
3,278
$
7,228
$
$
(111
)
$
7,117
December 31,
2004
2005
$
1,193
$
4,152
5,924
3,064
$
7,117
$
7,216
3. | Investments in Marketable Securities (continued) |
December 31, | ||||||||
2004 | 2005 | |||||||
Less than 12 months
|
$ | 34 | $ | 66 | ||||
Greater than 12 months
|
77 | 48 | ||||||
$ | 111 | $ | 114 | |||||
4. | Property and Equipment |
December 31, | ||||||||
2004 | 2005 | |||||||
Computer hardware
|
$ | 6,888 | $ | 7,928 | ||||
Computer software
|
6,070 | 5,882 | ||||||
Furniture and fixtures
|
481 | 498 | ||||||
Leasehold improvements
|
750 | 904 | ||||||
14,189 | 15,212 | |||||||
Less accumulated depreciation and
amortization
|
(10,091 | ) | (11,005 | ) | ||||
$ | 4,098 | $ | 4,207 | |||||
F-15
5.
Accrued Expenses
December 31,
2004
2005
$
926
$
2,635
1,241
2,737
815
$
2,167
$
6,187
6. | Financing Arrangements |
2006
|
667 | |||
2007
|
666 | |||
$ | 1,333 | |||
7. | Capital Structure |
F-16
F-17
F-18
8.
Stock Plan
Options Outstanding
Option
Weighted-
Shares
Number
Price Per
Average
Available
of
Share
Exercise
for Grant
Shares
Range
Price
1,792
285
$
0.29
$
0.29
(278
)
278
0.29
0.29
0.29
0.29
155
(155
)
.29
1,669
408
0.29
0.29
(562
)
562
0.29
0.29
(1
)
0.29
0.29
179
(179
)
0.29
1,286
790
0.29
(425
)
424
0.45 - 10.00
3.15
(15
)
0.29
0.29
120
(120
)
0.29 - 10.00
0.30
981
1,079
88
178
377
F-19
Retrospective
Number of
Determination of
Grant Date
Options Granted
Exercise Price
Fair Value
Intrinsic Value
207
$
0.45
$
1.84
$
1.39
98
$
0.45
$
6.19
$
5.74
120
$
10.00
$
7.85
Weighted-Average | ||||||||||||
Remaining | ||||||||||||
Options | Contractual Life | |||||||||||
Exercise Price | Options Outstanding | Vested | (in years) | |||||||||
$0.29
|
681 | 199 | 7.82 | |||||||||
$0.45
|
279 | | 9.37 | |||||||||
$10.00
|
119 | | 9.81 | |||||||||
1,079 | 199 | |||||||||||
F-20
F-21
10.
Income Taxes
December 31,
2003
2004
2005
$
25
$
25
$
35
101
144
80
89
3,799
169
105
4,024
6,646
6,612
458
437
356
49
12
21
51
164
7,285
7,175
4,644
(7,285
)
(7,175
)
$
$
$
4,644
Year Ended
December 31,
2003
2004
2005
34
%
34
%
34
%
0
%
0
%
5
%
(1
)%
(631
)%
0
%
(33
)%
597
%
(84
)%
(45
)%
Year Ended December 31,
2003
2004
2005
$
$
$
164
651
(3,579
)
(1,065
)
$
$
$
(3,829
)
11.
Commitments and Contingencies
$
1,168
1,180
1,106
905
529
658
$
5,546
F-22
F-23
12.
Related Parties
Purchase
Price of
Interest in
Position with
Equity Interest
Runson
Name
Synchronoss
in Omniglobe
Hitters, L.L.C.
Chairman of the Board of Directors,
President and Chief Executive Officer
12.23
%
$
95,000
Chief Financial Officer and
Treasurer
2.58
%
$
20,000
Vice President and Chief Technology
Officer
2.58
%
$
20,000
Executive Vice President of Product
Management and Service Delivery
1.29
%
$
10,000
F-24
13.
Selected Quarterly Financial Data (Unaudited)
Quarter Ended
March 31
June 30
September 30
December 31
(in thousands, except per share data)
$
5,819
$
6,265
$
6,381
$
8,726
2,051
1,952
2,240
3,260
(320
)
(204
)
119
398
(329
)
(212
)
110
389
(0.02
)
(0.01
)
0.01
0.02
(0.01
)
(0.01
)
0.00
0.02
$
11,350
$
13,776
$
14,115
$
14,977
5,069
5,829
6,139
6,976
1,527
1,929
1,998
6,975
(2)
1,519
1,921
1,987
6,968
0.07
0.09
0.09
0.32
0.06
0.08
0.08
0.29
(1)
Per common share amounts for the quarters and full years have
been calculated separately. Accordingly, quarterly amounts do
not add to the annual amount because of differences in the
weighted-average common shares outstanding during each period
principally due to the effect of the Companys issuing
shares of its common stock during the year.
F-25
(2)
Includes the impact of a reduction of the Companys
deferred tax valuation allowance of $4.6 million.
Page
4
11
23
25
25
26
27
28
30
43
58
69
72
74
77
80
84
84
84
84
F-1
II-1
Item 13.
Other Expenses of Issuance and Distribution
$
8,025
*
*
*
*
*
*
*
*
$
*
Item 14.
Indemnification of Directors and Officers
II-2
Item 15.
Recent Sales of Unregistered Securities
Item 16.
Exhibits and Financial Statement Schedules
(a)
Exhibits
Exhibit
No.
Description
1
.1*
Form of Underwriting Agreement.
3
.1#
Amended and Restated Certificate of
Incorporation of the Registrant.
3
.2*
Form of Restated Certificate of
Incorporation to be effective upon closing.
3
.3#
Bylaws of the Registrant.
3
.4*
Amended and Restated Bylaws of the
Registrant to be effective upon closing.
4
.1
Reference is made to
Exhibits 3.1, 3.2, 3.3 and 3.4.
4
.2*
Form of Registrants Common
Stock certificate.
4
.3#
Amended and Restated Investors
Rights Agreement, dated December 22, 2000, by and among the
Registrant, certain stockholders and the investors listed on the
signature pages thereto.
4
.4#
Amendment No. 1 to Synchronoss
Technologies, Inc. Amended and Restated Investors Rights
Agreement, dated April 27, 2001, by and among the
Registrant, certain stockholders and the investors listed on the
signature pages thereto.
4
.5#
Registration Rights Agreement,
dated November 13, 2000, by and among the Registrant and
the investors listed on the signature pages thereto.
4
.6#
Amendment No. 1 to Synchronoss
Technologies, Inc. Registration Rights Agreement, dated
May 21, 2001, by and among the Registrant, certain
stockholders listed on the signature pages thereto and Silicon
Valley Bank.
5
.1*
Opinion of Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP.
10
.1*
Form of Indemnification Agreement
between the Registrant and each of its directors and executive
officers.
10
.2#
Synchronoss Technologies, Inc. 2000
Stock Plan and forms of agreements thereunder.
10
.3*
2006 Equity Incentive Plan and
forms of agreements thereunder.
10
.4*
2006 Employee Stock Purchase Plan.
Exhibit | ||||
No. | Description | |||
10 | .5# | Lease Agreement between the Registrant and BTCT Associates, L.L.C. for the premises located at 750 Route 202 South, Bridgewater, New Jersey, dated as of May 11, 2004. | ||
10 | .6# | Lease Agreement between the Registrant and Liberty Property Limited Partnership for the premises located at 1525 Valley Center Parkway, Bethlehem, Pennsylvania, dated as of February 14, 2002. | ||
10 | .7# | Lease Agreement between the Registrant and Apple Tree LLC for the premises located at 8201 164th Avenue NE, Redmond, Washington, dated as of November 28, 2005. | ||
10 | .8# | Warrants to Purchase Series A Preferred Stock of the Registrant issued to Silicon Valley Bank, dated as of May 21, 2001 and June 26, 2002. | ||
10 | .9# | Loan and Security Agreement between the Registrant and Silicon Valley Bank, dated as of May 21, 2001. | ||
10 | .10 | Cingular Master Services Agreement, effective September 1, 2005 by and between the Registrant and Cingular Wireless LLC. | ||
23 | .1* | Consent of Ernst & Young, LLP, Independent Registered Public Accounting Firm. | ||
23 | .2* | Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP (contained in Exhibit 5.1). | ||
24 | .1# | Power of Attorney (included on signature page of this filing). |
| Compensation Arrangement. | |
* | To be filed by amendment. | |
| Confidential treatment has been requested for portions of this document. The omitted portions of this document have been filed with the Securities and Exchange Commission. | |
# | Previously filed as an exhibit to this Registration Statement filed February 28, 2004. | |
(b) | Financial Statement Schedules |
Balance | Balance at | |||||||||||||||
Beginning of | Charged to | End of | ||||||||||||||
Allowance for Doubtful Accounts | Year | Expense | Write-Offs | Year | ||||||||||||
(in thousands) | ||||||||||||||||
December 31, 2003
|
$ | 220 | $ | 137 | $ | | $ | 357 | ||||||||
December 31, 2004
|
$ | 357 | $ | (123 | ) | $ | (34 | ) | $ | 200 | ||||||
December 31, 2005
|
$ | 200 | $ | 21 | $ | | $ | 221 |
Note: | Additions to the allowance for doubtful accounts are charged to expenses. |
II-3
II-4
Item 17.
Undertakings
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by us under Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration
statement relating to the securities offered, and the offering
of these securities at that time shall be deemed to be the
initial bona fide offering.
SYNCHRONOSS TECHNOLOGIES, INC.
By:
/s/
Stephen G.
Waldis
Stephen G. Waldis
Chairman of the Board of Directors,
President and Chief Executive Officer
Signature
Title
Date
/s/
Stephen G. Waldis
Stephen
G. Waldis
Chairman of the Board of Directors,
President and Chief Executive Officer
April 14, 2006
/s/
Lawrence R. Irving
Lawrence
R. Irving
Chief Financial Officer and
Treasurer (Principal Financial and
Accounting Officer)
April 14, 2006
*
William
Cadogan
Director
April 14, 2006
*
Thomas
J. Hopkins
Director
April 14, 2006
*
James
McCormick
Director
April 14, 2006
*
Scott
Yaphe
Director
April 14, 2006
By: /s/
Stephen G. Waldis
Stephen G.
Waldis
Attorney-in-Fact
II-5
II-6
Exhibit
No.
Description
1
.1*
Form of Underwriting Agreement.
3
.1#
Amended and Restated Certificate of
Incorporation of the Registrant.
3
.2*
Form of Restated Certificate of
Incorporation to be effective upon closing.
3
.3#
Bylaws of the Registrant.
3
.4*
Amended and Restated Bylaws of the
Registrant to be effective upon closing.
4
.1
Reference is made to
Exhibits 3.1, 3.2, 3.3 and 3.4.
4
.2*
Form of Registrants Common
Stock certificate.
4
.3#
Amended and Restated Investors
Rights Agreement, dated December 22, 2000, by and among the
Registrant, certain stockholders and the investors listed on the
signature pages thereto.
4
.4#
Amendment No. 1 to Synchronoss
Technologies, Inc. Amended and Restated Investors Rights
Agreement, dated April 27, 2001, by and among the
Registrant, certain stockholders and the investors listed on the
signature pages thereto.
4
.5#
Registration Rights Agreement,
dated November 13, 2000, by and among the Registrant and
the investors listed on the signature pages thereto.
4
.6#
Amendment No. 1 to Synchronoss
Technologies, Inc. Registration Rights Agreement, dated
May 21, 2001, by and among the Registrant, certain
stockholders listed on the signature pages thereto and Silicon
Valley Bank.
5
.1*
Opinion of Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP.
10
.1*
Form of Indemnification Agreement
between the Registrant and each of its directors and executive
officers.
10
.2#
Synchronoss Technologies, Inc. 2000
Stock Plan and forms of agreements thereunder.
10
.3*
2006 Equity Incentive Plan and
forms of agreements thereunder.
10
.4*
2006 Employee Stock Purchase Plan.
10
.5#
Lease Agreement between the
Registrant and BTCT Associates, L.L.C. for the premises located
at 750 Route 202 South, Bridgewater, New Jersey, dated as of
May 11, 2004.
10
.6#
Lease Agreement between the
Registrant and Liberty Property Limited Partnership for the
premises located at 1525 Valley Center Parkway, Bethlehem,
Pennsylvania, dated as of February 14, 2002.
10
.7#
Lease Agreement between the
Registrant and Apple Tree LLC for the premises located at 8201
164th Avenue NE, Redmond, Washington, dated as of
November 28, 2005.
10
.8#
Warrants to Purchase Series A
Preferred Stock of the Registrant issued to Silicon Valley Bank,
dated as of May 21, 2001 and June 26, 2002.
10
.9#
Loan and Security Agreement between
the Registrant and Silicon Valley Bank, dated as of May 21,
2001.
10
.10
Cingular Master Services Agreement,
effective September 1, 2005 by and between the Registrant
and Cingular Wireless LLC.
23
.1*
Consent of Ernst & Young,
LLP, Independent Registered Public Accounting Firm.
23
.2*
Consent of Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP (contained in
Exhibit 5.1).
24
.1#
Power of Attorney (included on
signature page of this filing).
Compensation Arrangement.
*
To be filed by amendment.
Confidential treatment has been requested for portions of this
document. The omitted portions of this document have been filed
with the Securities and Exchange Commission.
#
Previously filed as an exhibit to this Registration Statement
filed February 28, 2004.
MASTER SERVICES AGREEMENT NO. * * *
BETWEEN
SYNCHRONOSS TECHNOLOGIES, INC.
AND
CINGULAR WIRELESS LLC
FOR
SERVICES
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
Services
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
Agreement Number
TABLE OF CONTENTS
ARTICLE I - PREAMBLE....................................................... 3 1.1 Preamble and Effective Date...................................... 3 1.2 Scope of Agreement............................................... 3 ARTICLE II - DEFINITIONS................................................... 3 ARTICLE III - General Clauses.............................................. 4 3.1 Affiliate........................................................ 4 3.2 Amendments and Waivers........................................... 4 3.3 Assignment....................................................... 5 3.4 Cancellation and Termination..................................... 5 3.5 Compliance with Laws............................................. 5 3.6 Conflict of Interest............................................. 6 3.7 Construction and Interpretation.................................. 6 3.8 Cumulative Remedies.............................................. 6 3.9 Delivery, Performance and Acceptance............................. 6 3.10 Entire Agreement................................................. 7 3.11 Force Majeure.................................................... 7 3.12 Governing Law.................................................... 7 3.13 Indemnity........................................................ 7 3.14 Information...................................................... 8 3.15 Infringement of Third Party Intellectual Property Rights......... 9 3.16 Insurance........................................................ 9 3.17 Dispute Resolution............................................... 10 3.18 Invoicing and Payment............................................ 11 3.19 Licenses and Patents............................................. 11 3.20 Limitation of Liability.......................................... 11 3.21 * * *............................................................ 3.22 Minority/Woman/Disabled Veteran-owned Business Enterprises ("MBE/WBE/DVBE") (and Appendices)................................ 12 3.23 Non-Exclusive Market............................................. 12 3.24 Notices.......................................................... 12 3.25 Publicity........................................................ 13 3.26 Records and Audits............................................... 13 3.27 Severability..................................................... 14 3.28 Survival of Obligations.......................................... 14 |
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
Services
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
AGREEMENT NO. * * *
3.29 Taxes............................................................ 14 3.30 Term of Agreement................................................ 14 3.31 Warranty......................................................... 14 3.32 Work Orders...................................................... 15 ARTICLE IV - SPECIAL TERMS................................................. 16 4.1 Access........................................................... 16 4.2 Background Check................................................. 17 4.3 Independent Contractor .......................................... 18 4.4 Work Done By Others. ............................................ 17 4.5 Cingular Corporate Information Security Policy, Compliance by Business Partners, Vendors, Contractors.......................... 18 |
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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ARTICLE I - PREAMBLE
1.1 PREAMBLE AND EFFECTIVE DATE
This Master Services Agreement ("Agreement") effective as of September 1, 2005
("Effective Date"), is between SYNCHRONOSS TECHNOLOGIES, INC., on behalf of
itself its subsidiaries and it's Affiliates (as defined below) a Delaware
corporation with offices at 1525 Valley Center Parkway, Bethlehem, Pennsylvania
18017 (hereinafter referred to as "Supplier"), and CINGULAR WIRELESS LLC, a
Delaware limited liability company, having an office and place of business at *
* *, on behalf of itself and its Affiliates (hereinafter referred to as
"CINGULAR"), each of which may be referred to in the singular as "Party" or in
the plural as "Parties."
1.2 SCOPE OF AGREEMENT
During the term of this Agreement, CINGULAR may authorize Supplier to perform work as specified in orders ("Orders") issued by CINGULAR to Supplier. Supplier will be subject to the terms and conditions contained in each Order and Supplier will perform those services in accordance with the terms of the Order and this Agreement. Pricing shall be based on those rates negotiated for each Order.
ARTICLE II - DEFINITIONS
2.1 "AFFILIATE" means (1) a company, whether incorporated or not, which owns, directly or indirectly, a forty percent (40%) interest in either Party (a "parent company"), and (2) a company, whether incorporated or not, in which a five percent (5%) or greater interest is owned, either directly or indirectly, by: (i) either Party or (ii) a parent company.
2.2 "CANCELLATION" means the occurrence by which either Party puts an end to this Agreement or Orders placed under this Agreement for breach by the other, and its effect is the same as that of "Termination" and, except as otherwise provided for herein, the canceling Party also retains any remedy for breach of the whole Agreement or any unperformed balance.
2.3 "INFORMATION" means all ideas, discoveries, concepts, know-how, trade secrets, techniques, designs, Specifications, drawings, sketches, models, manuals, samples, tools, computer programs, technical information, and other confidential business, customer or personnel information or data, whether provided orally, in writing, or through electronic or other means.
2.4 "LIABILITY" means all losses, damages, expenses, costs, penalties, fines and fees, including reasonable attorneys' fees, arising from or incurred in connection with a claim or cause of action related to performance or omission of acts under this Agreement or any Order, including, but not limited to, claims or causes of actions brought by third parties.
2.5 "ORDER" means such purchase orders, work orders, forms, memoranda or other written communications as may be delivered to Supplier for the purpose of ordering Services hereunder.
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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2.6 "SERVICE(S)" means any and all labor or service provided in connection with this Agreement or an applicable Order, including, but not limited to, consultation, engineering, installation, removal, maintenance, training, technical support, repair, and programming. The term "Service" shall also include any Material, including any Documentation, provided by Supplier in connection with providing the Services.
2.7 "SPECIFICATIONS" mean (i) Supplier's applicable Specifications and descriptions, including any warranty statements, and (ii) CINGULAR's requirements, Specifications, and descriptions specified in, or attached to, this Agreement or an applicable Order, which shall control over an inconsistency with Supplier's Specifications and descriptions.
2.8 "TERMINATION" means the occurrence by which either Party, pursuant to the provisions or powers of this Agreement or pursuant to laws and regulations, puts an end to this Agreement and/or Orders placed under this Agreement other than for breach. On "Termination" all executory obligations are discharged, but any right based on breach of performance survives except as otherwise provided herein.
2.9 "WORK" means all Material and Services, collectively, that Supplier is supplying pursuant to Orders placed under this Agreement.
ARTICLE III - GENERAL CLAUSES
3.1 AFFILIATE
Supplier agrees that an Affiliate may place Orders with Supplier, which incorporate the terms and conditions of this Agreement, and that the term "CINGULAR" shall be deemed to refer to an Affiliate when an Affiliate places an Order with Supplier under this Agreement. An Affiliate will be responsible for its own obligations, including but not limited to, all charges incurred in connection with such Order. The Parties agree that nothing in this Agreement will be construed as requiring CINGULAR to indemnify Supplier, or to otherwise be responsible, for any acts or omissions of an Affiliate, nor shall anything in this Agreement be construed as requiring an Affiliate to indemnify Supplier, or to otherwise be responsible, for the acts or omissions of CINGULAR.
3.2 AMENDMENTS AND WAIVERS
This Agreement and any Orders placed hereunder may be amended or modified only by a written document signed by the authorized representative of the Party against whom enforcement is sought; provided that CINGULAR may, at any time, make changes to the scope of Work, and Supplier shall not unreasonably withhold or condition its consent. * * * No course of dealing or failure of either Party to strictly enforce any term, right or condition of this Agreement shall be construed as a general waiver or relinquishment of such term, right, or condition. A waiver by either Party of any default shall not be deemed a waiver of any other default.
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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3.3 ASSIGNMENT
* * * Any attempted assignment or transfer not consented to in writing, except
for an assignment to receive money due hereunder, will be void. It is expressly
agreed that any assignment of money will be void if (i) the assignor fails to
give the non-assigning Party at least thirty (30) days prior written notice, or
(ii) the assignment imposes or attempts to impose upon the non-assigning Party
additional costs or obligations in addition to the payment of such money, or
(iii) the assignment attempts to preclude CINGULAR from dealing solely and
directly with Supplier in all matters pertaining to this Agreement, or (iv) the
assignment denies, alters or attempts to alter any of the non-assigning Party's
rights hereunder.
3.4 CANCELLATION AND TERMINATION
a. Cancellation:
1. If either Party fails to cure a material default under this Agreement or applicable Order within * * * after written notice, then, in addition to all other rights and remedies, the Party not in default may cancel this Agreement and/or the Order under which the default occurred. * * * Additional provisions for Cancellation of Orders hereunder are set forth in this Agreement.
2. If Supplier is the Party in default, CINGULAR may Cancel any Orders which may be affected by Supplier's default * * *.
b. Termination:
* * * In such event, or if Supplier Cancels this Agreement or any Order as a result of CINGULAR's failure to cure a material default, CINGULAR shall pay Supplier its actual and direct costs incurred to provide the Material and Services ordered by CINGULAR, but no more than a percentage of the Services performed or Material Delivered, less reimbursements. If requested, Supplier agrees to substantiate such costs with proof satisfactory to CINGULAR. In no event shall CINGULAR's Liability exceed the price of any Material or Services ordered hereunder. After the receipt of CINGULAR's payment for any Services, Supplier shall deliver the physical embodiments, if any, of such Services. * * *
c. Partial Cancellation and Termination:
Where a provision of this Agreement or the applicable Laws permit CINGULAR to Terminate or Cancel an Order, such Termination or Cancellation may, at CINGULAR's option, be either complete or partial. In the case of a partial Termination or Cancellation, CINGULAR may, at its option, Accept a portion of the Material or Services covered by an Order and pay Supplier for such Material or Services at the unit prices set forth in such Order. The right to cancel an Order shall also include the right to cancel any other related Order.
3.5 COMPLIANCE WITH LAWS
Supplier shall comply with all applicable federal, state, county, and local rules, including, without limitation, all statutes, laws, ordinances, regulations and codes ("Laws"). Supplier's obligation to comply with all Laws includes the procurement of permits, certificates, approvals, inspections and licenses, when needed, in the performance of this Agreement. Supplier further agrees to comply with all applicable Executive and Federal regulations as set forth in "Executive Orders and Federal
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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Regulations," a copy of which is attached as Appendix 3.5 and by this reference made a part of this Agreement. Supplier shall defend, indemnify and hold CINGULAR harmless from and against any Liability that may be sustained by reason of Supplier's failure to comply with this Section.
3.6 CONFLICT OF INTEREST
Supplier represents and warrants that no officer, director, employee, or agent of CINGULAR has been or will be employed, retained or paid a fee, or otherwise has received or will receive any personal compensation or consideration, by or from Supplier or any of Supplier's officers, directors, employees or agents in connection with the obtaining, arranging or negotiation of this Agreement or other documents entered into or executed in connection with this Agreement.
3.7 CONSTRUCTION AND INTERPRETATION
a. The language of this Agreement shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any Party. The Parties agree that this Agreement has been prepared jointly and has been the subject of arm's length and careful negotiation. Each Party has been given the opportunity to independently review this Agreement with legal counsel and other consultants, and each Party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, the drafting of the language of this Agreement shall not be attributed to either Party.
b. Article, section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. The use of the word "include" shall mean "includes, but is not limited to." The singular use of words shall include the plural and vice versa. Except as otherwise specified, Supplier's price for Material and Services includes the price for all related Material or Services necessary for CINGULAR to use the Material and/or Services for its intended purpose, as well as all other Supplier obligations under this Agreement. All obligations and rights of the Parties are subject to modification as the parties may specifically provide in an Order. "Services" and "Software" shall be treated as "goods" for purposes of applying the provisions of the Uniform Commercial Code ("UCC"). If there is an inconsistency or conflict between the terms in this Agreement and in an Order, the terms in the Order shall take precedence.
3.8 CUMULATIVE REMEDIES
Except as specifically identified as a Party's sole remedy, any rights of Cancellation, Termination, Liquidated Damages or other remedies prescribed in this Agreement, are cumulative and are not exclusive of any other remedies to which the injured Party may be entitled. Neither Party shall retain the benefit of inconsistent remedies.
3.9 DELIVERY, PERFORMANCE AND ACCEPTANCE
Services performed by Supplier shall be deemed to be accepted by CINGULAR when Services are * * *. Payments, including progress payments, if any, shall not be construed as Acceptance of Services performed up to the time of such payments. CINGULAR shall notify Supplier of any Services considered to be unsatisfactory. Supplier shall, * * *, take prompt action to correct such unsatisfactory Services. If such unsatisfactory Services have not been corrected within a reasonable
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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time (not to exceed * * *from date of notification), CINGULAR may, in addition to all other rights and remedies provided by law or this Agreement, * * *.
3.10 ENTIRE AGREEMENT
a. The terms contained in this Agreement and in any Orders, including all exhibits, appendices and subordinate documents attached to or referenced in this Agreement or in any Orders, constitute the entire integrated Agreement between Supplier and CINGULAR with regard to the subject matter contained herein. This Agreement supercedes all prior oral and written communications, agreements and understandings of the Parties, if any, with respect hereto. Acceptance of Material or Services, payment or any inaction by CINGULAR, shall not constitute CINGULAR's consent to or Acceptance of any additional or different terms from those stated in this Agreement, except for terms in an Order inserted by CINGULAR and signed by both Parties. Estimates furnished by CINGULAR are for planning purposes only and shall not constitute commitments. Supplier covenants never to contend otherwise.
b. No oral promises or statement have induced either Party to enter into this Agreement, and the Parties agree that the Agreement's express language may only be modified or amended through a subsequent written document signed by the Parties.
3.11 FORCE MAJEURE
a. Neither Party shall be deemed in default of this Agreement or any Order to the extent that any delay or failure in the performance of its obligations results from any cause beyond its reasonable control and without its fault or negligence, such as acts of God, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods or strikes ("Force Majeure").
b. If any Force Majeure condition affects Supplier's ability to perform, Supplier shall give immediate notice to CINGULAR, and CINGULAR may elect to either: (i) Terminate the affected Order(s) or any part thereof, (ii) suspend the affected Order(s) or any part thereof for the duration of the Force Majeure condition, with the option to obtain Material and Services to be furnished under such Order(s) elsewhere, * * * or (iii) resume performance under such Order(s) once the Force Majeure condition ceases, with an option in CINGULAR to extend any affected Delivery Date for the length of time that the Force Majeure condition existed. Unless CINGULAR gives written notice within thirty (30) days after being notified of the Force Majeure condition, option (ii) shall be deemed selected.
3.12 GOVERNING LAW
This Agreement and performance hereunder shall be governed by the Laws of the State of * * *, exclusive of its choice of law provisions.
3.13 INDEMNITY
TO THE FULLEST EXTENT PERMITTED BY LAW, SUPPLIER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS CINGULAR AND ITS AFFILIATES (INCLUDING THEIR EMPLOYEES, OFFICERS, DIRECTORS, AGENTS AND CONTRACTORS) AGAINST ANY LIABILITY ARISING FROM OR INCIDENTAL TO SUPPLIER'S OBLIGATIONS UNDER THIS AGREEMENT OR THE
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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MATERIAL OR SERVICES PROVIDED BY SUPPLIER, INCLUDING (i) INJURIES TO PERSONS, INCLUDING DEATH OR DISEASE, (ii) DAMAGES TO PROPERTY, INCLUDING THEFT, (iii) SUPPLIER'S FAILURE TO COMPLY WITH ALL LAWS, AND (iv) LIENS ON CINGULAR'S PROPERTY.
b. * * * THIS INDEMNITY SHALL SURVIVE THE DELIVERY, INSPECTION AND ACCEPTANCE OF THE MATERIAL OR SERVICES AND THE CANCELLATION, TERMINATION OR EXPIRATION OF THIS AGREEMENT.
CINGULAR shall notify Supplier within a reasonable period of time of any written claim, demand, notice or legal proceedings ("Claim") for which Supplier may be responsible under this indemnity obligation. A delay in notice shall not relieve Supplier of its indemnity obligation, except to the extent Supplier can show it was prejudiced by the delay.
c. Supplier shall assume, at its expense, the sole defense of the Claim through counsel selected by Supplier and shall keep CINGULAR fully informed as to the progress of such defense. Upon reasonable request of Supplier and at Supplier's expense, CINGULAR shall cooperate with Supplier in the defense of the Claim. At its option and expense, CINGULAR may retain or use separate counsel to represent it, including in-house counsel. Supplier shall maintain control of the defense, except that if the settlement of a Claim would adversely affect CINGULAR, Supplier may settle the Claim as to CINGULAR only with its consent, which consent shall not be withheld or delayed unreasonably. Supplier shall pay the full amount of any judgment, award or settlement with respect to the Claim and all other expenses related to the resolution of the Claim, including costs, interest and reasonable attorneys' fees. If CINGULAR is required to take any action to enforce its indemnity rights under this Agreement, or to assume the defense of any Claim for which it is entitled to receive an indemnity under this Agreement, because of Supplier's failure to promptly assume such defense, then CINGULAR may also recover from Supplier any reasonable attorneys' fees (including cost of in-house counsel at market rates for attorneys of similar experience) and other costs of enforcing its indemnity rights or assuming such defense.
Supplier agrees not to implead or bring any action against CINGULAR or CINGULAR's employees based on any claim by any person for personal injury or death that occurs in the course or scope of employment of such person by Supplier and relates to Supplier's performance under this Agreement.
3.14 INFORMATION
a. Information furnished by CINGULAR.
1. Any Information furnished to Supplier in connection with this Agreement, including Information provided under a separate Non-Disclosure prior to executing this Agreement, shall remain CINGULAR's property. Unless such Information was previously known to Supplier free of any obligation to keep it confidential, or has been or is subsequently made public by CINGULAR or a third party, without violating a confidentiality obligation, it shall be kept confidential by Supplier, shall be used only in performing under this Agreement, and may not be used for other purposes, except as may be agreed upon between Supplier and CINGULAR in writing. Supplier is granted no rights or license to such Information. All copies of such Information, in written, graphic or other tangible form, shall be returned to CINGULAR upon the earlier of (i) CINGULAR's request or (ii) upon Termination, Cancellation, or expiration of this Agreement. All copies of such Information in intangible form, such as electronic records, including electronic mail, shall be destroyed upon the earlier of (i) CINGULAR's request or (ii) upon Termination, Cancellation, or expiration of this Agreement,
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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and Supplier shall certify to CINGULAR the destruction of all intangible copies of such Information.
b. Information furnished by Supplier.
Any Information furnished to CINGULAR under this Agreement shall remain Supplier's property. * * * If Supplier provides CINGULAR with any proprietary or confidential Information* * *, CINGULAR shall use the same degree of care to prevent its disclosure to others as CINGULAR uses with respect to its own proprietary or confidential Information. * * *
c. Nothing in this Agreement shall prevent either party from disclosing the other party's name or Information pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations).
3.15 INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS
a. Supplier agrees to defend, indemnify and hold CINGULAR harmless from and against * * *.
b. Supplier agrees to defend or settle, at its' own expense, any action or suit for which it is responsible under this Section. CINGULAR agrees to notify Supplier promptly of any claim of infringement and cooperate in every reasonable way to facilitate the defense. Supplier shall afford CINGULAR, at its own expense and with counsel of CINGULAR's choice, an opportunity to participate on an equal basis with Supplier in the defense or settlement of any such claim.
3.16 INSURANCE
a. With respect to performance hereunder, and in addition to Supplier's obligation to indemnify, Supplier agrees to maintain, at all times during the term of this Agreement, the following minimum insurance coverages and limits and any additional insurance and/or bonds required by law:
b. Workers' Compensation insurance with benefits afforded under the Laws of the state in which the Services are to be performed and Employers Liability insurance with minimum limits of $* * * for Bodily Injury-each accident, $* * * for Bodily Injury by disease-policy limits and $* * * for Bodily Injury by disease-each employee.
c. Commercial General Liability insurance with minimum limits of: $* * *
General Aggregate limit; $* * * each occurrence sub-limit for all
bodily injury or property damage incurred in any one occurrence; $* *
* each occurrence sub-limit for Personal Injury and Advertising; $* *
* Products/Completed Operations Aggregate limit, with a $* * * each
occurrence sub-limit for Products/Completed Operations. Fire Legal
Liability sub-limits of $300,000 are required for lease agreements.
d. CINGULAR and its Affiliated companies will be listed as an Additional Insured on the Commercial General Liability policy.
e. If use of a motor vehicle is required, Automobile Liability insurance with minimum limits of $* * * combined single limits per occurrence for bodily injury and property damage, which coverage shall extend to all owned, hired and non-owned vehicles.
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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f. CINGULAR requires that companies affording insurance coverage have a rating of A- or better and a Financial Size Category rating of VIII or better rating, as rated in the A.M. Best Key Rating Guide for Property and Casualty Insurance Companies.
g. A certificate of insurance stating the types of insurance and policy limits provided the Supplier must be received prior to commencement of any Work. If a certificate is not received, Supplier hereby authorizes CINGULAR, and CINGULAR may, but is not required to, obtain insurance on behalf of Supplier as specified herein. CINGULAR will either invoice Supplier for the costs incurred to so acquire insurance or will reduce by an applicable amount any amount owed to Supplier.
h. The cancellation clause on the certificate of insurance will be amended to read as follows:
"THE ISSUING COMPANY WILL MAIL * * * WRITTEN NOTICE TO THE CERTIFICATE HOLDER PRIOR TO CANCELLATION OR A MATERIAL CHANGE TO POLICY DESCRIBED ABOVE."
i. The Supplier shall also require all subcontractors performing Work on the project or who may enter upon the work site to maintain the same insurance requirements listed above.
3.17 DISPUTE RESOLUTION
a. EXCLUSIVE PROCEDURE. Any dispute arising out of or relating to this Agreement shall be resolved in accordance with the procedures specified in this Section 3.17, which, notwithstanding the parties' right to seek injunctive relief, shall be the sole and exclusive procedures for the resolution of any such disputes.
b. NEGOTIATION BETWEEN EXECUTIVES. Before resorting to other remedies available to them, the parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within * * * after delivery of the notice, the receiving party shall submit to the other a written response. The notice and the response shall include (a) a statement of each party's position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within * * * after delivery of the disputing party's notice, the executives of both parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute. All reasonable requests for information made by one party to the other will be honored.
c. NON-BINDING MEDIATION. If the dispute has not been resolved by negotiation as provided herein, the parties shall endeavor to settle the dispute by mediation under the then current Center for Public Resources ("CPR") Model Procedure for Mediation of Business Disputes. The neutral third party will be selected from the CPR Panel of Neutrals, with the assistance of CPR, unless the parties agree otherwise.
d. LITIGATION. If a dispute has not been resolved by non-binding means as provided herein within * * * of the initiation of such procedures, either party may initiate litigation;
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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provided, however, that if one party has requested the other to participate in a non-binding procedure and the other has failed to participate, the requesting party may initiate litigation before the expiration of the * * * period.
e. CONFIDENTIAL NEGOTIATIONS. All negotiations pursuant to this section 3.17 are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
f. OBLIGATION TO CONTINUE PERFORMANCE. Each party is required to continue to perform its obligations under this contract pending final resolution of any dispute arising out of or relating to this Agreement.
3.18 INVOICING AND PAYMENT
a. Except as otherwise specified in an Order, Supplier shall render an invoice in duplicate, in arrears on a monthly basis or as otherwise agreed by the Parties. The invoice shall specify in detail (i) Material and/or Services provided, (ii) associated fees, (iii) whether any item is taxable and the amount of tax per item, (iv) shipping charges, and (v) total amount due. The invoice shall also reference the purchase order number and the Order number. CINGULAR shall pay Supplier within * * * of the date of receipt of the invoice in accordance with the prices set forth in this Agreement or in the applicable Order. Payment for Material or Services not conforming to the Specifications, and portions of any invoice in dispute, may be withheld by CINGULAR until such nonconformance or dispute has been resolved. If CINGULAR disputes any invoice rendered or amount paid, CINGULAR shall so notify Supplier. The Parties shall use their best efforts to resolve invoicing and payment disputes expeditiously. * * *
b. * * * Supplier shall pay any amount due to CINGULAR that is not so
applied against Supplier's invoices for any reason to CINGULAR within
* * * after written demand by CINGULAR.
c. Supplier agrees to accept standard, commercial methods of payment and evidence of payment obligation including, but not limited to, credit card payments, purchasing card payments, CINGULAR's purchase orders and electronic fund transfers in connection with the purchase of the Material and Services.
3.19 LICENSES AND PATENTS
No licenses express or implied, under any patents, copyrights, trademarks or other intellectual property rights are granted by CINGULAR to Supplier under this Agreement.
3.20 LIMITATION OF LIABILITY
In no event shall either party be liable to the other for consequential, incidental, special or punitive damages, or for loss of revenue or profit in connection with the performance or failure to perform this Agreement, regardless of whether such Liability arises from breach of contract, tort or any other theory of Liability. With the exception of indemnity obligations,
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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payment obligations, failure to comply with law, or intentional misconduct, in no event shall either party's direct damages hereunder exceed $* * *.
3.21 * * *
* * *
3.22 MINORITY/WOMAN/DISABLED VETERAN-OWNED BUSINESS ENTERPRISES ("MBE/WBE/DVBE")
(AND APPENDICES)
a. Supplier commits to goals for the participation of M/WBE and DVBE firms (as defined in the Section entitled "MBE/WBE/DVBE Cancellation Clause") as follows: * * * MBE PARTICIPATION; * * * WBE PARTICIPATION; and * * * DVBE PARTICIPATION. These goals apply to all annual expenditures by any entity pursuant to this Agreement with Supplier.
b. Supplier MBE/WBE/DVBE participation may be achieved through cost of goods content, contract specific subcontracting or the use of value-added resellers. The participation levels identified above will be renegotiated to comply with any regulatory requirements imposed on CINGULAR.
c. Attached hereto and incorporated herein as Appendix 3.22(a) is Supplier's
completed Participation Plan outlining its M/WBE-DVBE goals and specific
and detailed plans to achieve those goals. Supplier will submit an updated
Participation Plan * * *. Supplier will submit M/WBE-DVBE Results Reports *
* *, using the form attached hereto and incorporated herein as Appendix
3.22(b). Participation Plans and Results Reports will be submitted to the
Prime Supplier Results Manager.
3.23 NON-EXCLUSIVE MARKET
It is expressly understood and agreed that this Agreement does not grant Supplier an exclusive privilege to provide to CINGULAR any or all Material and Services of the type described in this Agreement, nor does it require CINGULAR to purchase or license any Material or Services. It is understood, therefore, that CINGULAR may contract with other manufacturers and suppliers for the procurement or trial of comparable Material and Services and that CINGULAR may itself perform the Services described herein.
3.24 NOTICES
a. Except as otherwise provided in this Agreement or an applicable Order, all notices or other communications hereunder shall be deemed to have been duly given when made in writing and either (i) delivered in person, or (ii) when received, if provided by an overnight or similar delivery service, or (iii) when received, if deposited in the United States Mail, postage prepaid, return receipt requested, and addressed as follows:
To: Synchronoss Technologies, Inc.
750 Route 202 South, Sixth Floor
Bridgewater, NJ 08807
* * *
Copy to
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP
610 Lincoln Street
Waltham, Massachusetts 02451
Attention: * * *, Esq.
To: Cingular Wireless LLC
* * *
* * *
Attn.: * * *
* * *
Copy to
Cingular Wireless LLC
* * *
* * *
Attn: * * *
b. The address to which notices or communications may be given by either Party may be changed by written notice given by such Party to the other pursuant to this Section.
3.25 PUBLICITY
Supplier shall not use CINGULAR's or its Affiliates' names or any language,
pictures, trademarks, service marks or symbols which could, in CINGULAR's
judgment, imply CINGULAR's or its Affiliates' identity or endorsement by
CINGULAR, its Affiliates or any of its employees in any (i) written, electronic
or oral advertising or presentation or (ii) brochure, newsletter, book,
electronic database or other written matter of whatever nature, without
CINGULAR's prior written consent (hereafter the terms in subsections (i) and
(ii) of this Section shall be collectively referred to as "Publicity Matters").
Supplier will submit to CINGULAR for written approval, prior to publication, all
Publicity Matters that mention or display CINGULAR's or its Affiliates' names,
trademarks or service marks, or that contain any symbols, pictures or language
from which a connection to said names or marks may be inferred or implied.
3.26 RECORDS AND AUDITS
Supplier agrees that it will:
a. Maintain complete and accurate records related to the Material and Services provided by Supplier to CINGULAR, including records of all amounts billable to and payments made by CINGULAR in accordance with Generally Accepted Accounting Principles and Practices, uniformly and consistently applied in a format that will permit audit;
b. Retain such records and reasonable billing detail for a period of at least
* * * from the date of final payment for Material and Services;
c. Provide reasonable supporting documentation to CINGULAR concerning any disputed invoice amount within * * * after receipt of written notification of such dispute; and,
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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d. Permit CINGULAR and its authorized representatives to inspect and audit during normal business hours the charges invoiced to CINGULAR. Should CINGULAR request an audit, Supplier will make available any pertinent records and files to CINGULAR during normal business hours at no additional charge.
3.27 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable, such invalidity or non-enforceability shall not invalidate or render unenforceable any other portion of this Agreement. The entire Agreement will be construed as if it did not contain the particular invalid or unenforceable provision(s), and the rights and obligations of Supplier and CINGULAR will be construed and enforced accordingly.
3.28 SURVIVAL OF OBLIGATIONS
Obligations and rights in connection with this Agreement, which by their nature would continue beyond the Termination, Cancellation or expiration of this Agreement, including, but not limited to, those in the Sections entitled "Compliance with Laws", "Infringement of Third Party Intellectual Property Rights", "Indemnity", "Publicity", "Severability", "Information", "Independent Contractor" and "Warranty" will survive the Termination, Cancellation or expiration of this Agreement.
3.29 TAXES
a. Supplier may invoice CINGULAR the amount of any federal excise taxes or state or local sales taxes imposed upon the sale of Material or provision of Services as separate items, if applicable, listing the taxing jurisdiction imposing the tax. Installation, labor and other non-taxable charges must be separately stated. CINGULAR agrees to pay all applicable taxes to Supplier, which are stated on, and at the time the Material or Service invoice is submitted by Supplier. Supplier agrees to remit taxes to the appropriate taxing authorities. Supplier agrees that it will honor properly prepared retail sales tax exemption certificates, which CINGULAR may submit, pursuant to the relevant Sales/Use tax provisions of the taxing jurisdictions.
3.30 TERM OF AGREEMENT
a. This Agreement is effective on September 1, 2005, and shall continue in effect unless Terminated or Canceled by either party as provided in this Agreement. The Parties may extend the term of this Agreement by mutual agreement in writing.
b. The Termination, Cancellation or expiration of this Agreement shall not affect the obligations of either Party to the other Party pursuant to any Order previously executed hereunder, and the terms and conditions of this Agreement shall continue to apply to such Order as if this Agreement had not been Terminated or Canceled.
3.31 WARRANTY
a. Supplier warrants to CINGULAR that any Services provided hereunder will be performed in a first-class, professional manner, in strict compliance with the Specifications, and with the care, skill and diligence, and in accordance with the applicable standards, currently recognized in
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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Supplier's profession or industry. If Supplier fails to meet applicable professional standards, Supplier will, * * *.
b. Supplier represents and warrants that:
1. There are no actions, suits, or proceedings, pending or threatened, which will have a material adverse effect on Supplier's ability to fulfill its obligations under this Agreement;
2. Supplier will immediately notify CINGULAR if, during the term of this Agreement, Supplier becomes aware of any action, suit, or proceeding, pending or threatened, which may have a material adverse effect on Supplier's ability to fulfill the obligations under this Agreement or any Order;
3. Supplier has all necessary skills, rights, financial resources, and authority to enter into this Agreement and related Orders, including the authority to provide or license the Material or Services;
4. * * *;
5. No consent, approval, or withholding of objection is required from any entity, including any governmental authority with respect to the entering into or the performance of this Agreement or any Order;
6. The Material and Services will be provided free of any lien or encumbrance of any kind;
7. Supplier will be fully responsible and liable for all acts, omissions, and Work performed by any of its representatives, including any subcontractor;
8. All representatives, including subcontractors, will strictly comply with the provisions specified in this Agreement and any Order; and,
9. Supplier will strictly comply with the terms of this Agreement or Order, including those specified in any Exhibits or Appendices thereto.
d. All warranties will survive inspection, Acceptance, payment and use. These warranties will be in addition to all other warranties, express, implied or statutory. Supplier will defend, indemnify and hold CINGULAR harmless from and against all Liabilities for a breach of these warranties.
e. If at any time during the warranty period for Services, CINGULAR believes there is a breach of any warranty, CINGULAR will notify Supplier setting forth the nature of such claimed breach. Supplier shall * * *.
f. If a breach of warranty has not been corrected within a commercially reasonable time, or if * * *.
3.32 WORK ORDERS
a. CINGULAR may order Material and Services by submitting Orders in connection with this Agreement. CINGULAR will submit Orders that specify, as a minimum, the following information:
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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1. A description of the Services and/or Material, including any numerical/alphabetical identification referenced in the applicable price list;
2. The requested Delivery/Due Date;
3. The applicable price(s)/fee(s);
4. The location to which the Material is to be shipped, or the site where Services will be rendered;
5. The location to which invoices are to be sent for payment; and,
6. CINGULAR's Order number.
b. The terms in this Agreement shall apply to Orders submitted in connection with this Agreement, and preprinted terms on the back of any Order shall not apply.
ARTICLE IV - SPECIAL TERMS
4.1 ACCESS
a. When appropriate, Supplier shall have reasonable access to CINGULAR's premises during normal business hours, and at such other times as may be agreed upon by the Parties, to enable Supplier to perform its obligations under this Agreement. Supplier shall coordinate such access with CINGULAR's designated representative prior to visiting such premises. Supplier will ensure that only persons employed by Supplier or subcontracted by Supplier will be allowed to enter CINGULAR's premises. If CINGULAR requests Supplier or its subcontractor to discontinue furnishing any person provided by Supplier or its subcontractor from performing Work on CINGULAR's premises, Supplier shall immediately comply with such request. Such person shall leave CINGULAR's premises immediately, and Supplier shall not furnish such person again to perform Work on CINGULAR's premises without CINGULAR's written consent.
b. CINGULAR may require Supplier or its representatives, including employees and subcontractors, to exhibit identification credentials, which CINGULAR may issue to gain access to CINGULAR's premises for the performance of Services. If, for any reason, any Supplier's representative is no longer performing such Services, Supplier shall immediately inform CINGULAR. Notification shall be followed by the prompt delivery to CINGULAR of the identification credentials, if issued by CINGULAR, or a written statement of the reasons why the identification credentials cannot be returned.
c. Supplier shall ensure that its representatives, including employees and subcontractors will, while on or off CINGULAR's premises, will perform Services which (i) conform to the Specifications, (ii) protect CINGULAR's Material, buildings and structures, (iii) do not interfere with CINGULAR's business operations, and (iv) are performed with care and due regard for the safety, convenience and protection of CINGULAR, its employees, and property and in full conformance with the policies specified in the CINGULAR Code of Conduct, which prohibits the possession of a weapon or an implement which can be used as a weapon (a copy of the CINGULAR Code of Conduct is available upon request).
d. * * *
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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4.2 BACKGROUND CHECK
Supplier shall conduct a background check for each individual providing Services to CINGULAR on behalf of Supplier to identify whether the individual has been convicted of a felony. Supplier agrees that no individual convicted of a felony will be permitted to provide Services in connection with this Agreement or any order submitted by CINGULAR without CINGULAR's written consent.
4.3 INDEPENDENT CONTRACTOR
Supplier hereby represents and warrants to CINGULAR that:
a. Supplier is engaged in an independent business and will perform all obligations under this Agreement as an independent contractor and not as the agent or employee of CINGULAR;
b. Supplier's personnel performing Services shall be considered solely the employees of Supplier and not employees or agents of CINGULAR;
c. Supplier has and retains the right to exercise full control of and supervision over the performance of the Services and full control over the employment, direction, assignment, compensation, and discharge of all personnel performing the Services;
d. Supplier is solely responsible for all matters relating to compensation and benefits for all of Supplier's personnel who perform Services. This responsibility includes, but is not limited to, (i) timely payment of compensation and benefits, including, but not limited to, overtime, medical, dental, and any other benefit, and (ii) all matters relating to compliance with all employer obligations to withhold employee taxes, pay employee and employer taxes, and file payroll tax returns and information returns under local, state and federal income tax laws, unemployment compensation insurance and state disability insurance tax laws, social security and Medicare tax laws, and all other payroll tax laws or similar laws with respect to all Supplier personnel providing Services; and,
e. Supplier will indemnify, defend, and hold CINGULAR harmless from all Liabilities, costs, expenses and claims related to Supplier's failure to comply with the immediately preceding paragraph.
4.4 WORK DONE BY OTHERS
If any part of Supplier's Work is dependent upon work performed by others, Supplier shall inspect and promptly report to CINGULAR any defect that renders such other work unsuitable for Supplier's proper performance. Supplier's silence shall constitute approval of such other work as fit, proper and suitable for Supplier's performance of its Work.
4.5 CINGULAR CORPORATE INFORMATION SECURITY POLICY, COMPLIANCE BY BUSINESS PARTNERS, VENDORS, CONTRACTORS
Security Requirements for System or Network Access by Contractors
Contractors must comply with these security requirements ("Requirements") to have access to Cingular's computers, computer peripherals, computer communications networks, computer
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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systems/applications/software, network elements and their support systems, and the information stored, transmitted, or processed using these resources ("Information Resources.") "Contractor" means a person or business entity with a written agreement ("Agreement") to perform services for Cingular. "User" means any individual performing services under the Agreement, whether as an employee, approved subcontractor, or agent of Contractor. "Cingular Sponsor" means the Cingular management employee responsible for the oversight of the services provided by Contractor.
These Requirements apply to Contractors and Users performing services on Cingular premises or remotely accessing Cingular infrastructure, systems or applications using Cingular-provisioned client-VPN and to those providing services to Cingular that are hosted external to Cingular premises.
A. COMPLIANCE WITH LAW AND GENERAL POLICY. Contractors must comply with the "CINGULAR CORPORATE INFORMATION SECURITY POLICY" as set forth on Exhibit 1. Contractors must protect Cingular Information Resources and Cingular proprietary or confidential data or information in accordance with the terms and conditions of the Agreement (including any separate confidentiality agreements), and must comply with all applicable international, federal, state, and local laws and regulations related to use of Information Resources and protection of Cingular's data or information. Contractor is responsible for ensuring that all Users it employs or contracts with comply with these Requirements. Additionally, regarding its Users, Contractor shall:
1. Ensure that all Users are covered by a legally binding obligation that protects Cingular's proprietary and confidential information and are briefed on these Requirements.
2. Perform a criminal background check on each User prior to allowing the User to access an Information Resource, and not allow such access if the User has been convicted of or is currently awaiting trial for a felony offense or a misdemeanor related to computer security, theft, fraud or violence.
3. Not subcontract any part of the work under the Agreement whereby a subcontractor will have access to Cingular's Information Resources without written approval of Cingular.
B. AUDITS. Upon at least * * * notice from Cingular, and subject to reasonable security requirements of Contractor, Contractor shall provide Cingular's designated representatives, if under a commercially reasonable nondisclosure agreement with both Cingular and Contractor, with access to and any assistance that it may require with respect to the Contractor's facilities, systems and software for the purpose of performing commercially reasonable tests and audits to determine compliance with these Requirements, including intellectual property audits if applicable, data privacy and security audits, and audits or inspections of the services and related operational processes and procedures, and access to any SAS-70 audits performed during the term of the Agreement. If Contractor is advised that it is not in compliance with any aspect of these Requirements, Contractor shall promptly take actions to comply with the audit findings. If Contractor is substantially in nonconformance with the foregoing, in addition to any remedies that Cingular may have, Contractor shall bear the reasonable cost of a re-audit after Contractor indicates to Sponsor that the audit findings have been remedied. Cingular may audit or inspect any computer hardware or software used by Users in the performance of work for Cingular, and may periodically review or monitor any use of Information Resources by User. Any User using Cingular Information Resources in an inappropriate manner may be subject to removal from the Cingular account, and to any other legal remedies Cingular may have.
C. PRIVACY OF CUSTOMER INFORMATION. Contractor acknowledges that information regarding Cingular's customers and personnel, such as their account information, (including by way of example, name, address, telephone number, credit card information or social security number) ("Customer Information") are subject to certain privacy laws and regulations, as well as the requirements of Cingular. Such Customer Information is to be considered private, sensitive and confidential. Accordingly, with respect to Customer Information, Contractor agrees it shall not:
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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1.Use Customer Information for any purpose except as expressly authorized by Cingular in writing;
2.Disclose Customer Information to any party except as expressly authorized by Cingular in writing;
3. Incorporate Customer Information into any database other than in a database maintained exclusively for the storage of Cingular's Customer Information;
4. Sale, license or lease Customer Information to any other party;
5. Allow access to Customer Information only to those employees of Contractor with a need to know and for use only for the purposes set forth in the Agreement.
D. NOTIFICATION OF SECURITY BREACH. Contractor will immediately notify Cingular Sponsor of any breach of these Requirements, including any breach that allows or could allow a third party to have access to any Customer Information, including but not limited to the following:
Social Security Number
Driver License Number
Home Address
Credit or debit card numbers
Date of birth
Visa / passport number
Bank account numbers
Mother's maiden name
Application PIN or password
Tax identification number
Credit information
Cingular Account Information
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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E. VISA Cardholder Information Security Program (CISP)
If applicable, Contractor shall adhere to all Payment Card Industry (PCI) Data Security Standard Requirements (VISA), as may be modified, for storing, processing, and transmitting credit card or debit cardholder information on behalf of Cingular Wireless. Security requirements apply to all "system components" which is defined as any network component or server, or application included or connected to the Cingular Customer Cardholder data environment. Network components include, but are not limited to firewalls, switches, routers, wireless access points, network appliances, or other appliances. Servers include, but not limited to, web database, authentication, and DNS mail proxy. Applications include all purchased and custom applications including internal and external web applications.
In the event that Contractor causes harm due to negligence or compromises a Cingular Wireless customer's cardholder information, it shall be liable for all penalties, or expenses incurred as a result of such a compromise.
For detailed information regarding the Visa Cardholder information Security
Program, see the following web page:
http://usa.visa.com/business/accepting_visa/ops_risk_management/cisp.html?
ep=v_sym_cisp
To view the Payment Card Industry (PCI) Data Security Program requirements, navigate to "PCI Data Security Standard" and open the PDF.
F. RETURN OR DESTRUCTION OF DATA. At the termination or expiration of the Agreement or when there is no longer a business need or data retention requirement, or at the request of Cingular, and in accordance with all laws, Contractor will either return, or purge and destroy at Cingular's direction, all Cingular data, including Customer Information from Contractor's and User's own information resources, according to Cingular standards, and will notify Cingular when this has been accomplished.
G. CHANGES. These Requirements are subject to change and revision by Cingular from time to time. Cingular is responsible for advising Contractor of any changes. Contractor is responsible for complying with the revised Requirements. If Contractor is unable to comply with the Requirements as revised, it may seek a waiver within a reasonable time following the notification of change.
H. WAIVER AND EFFECT. By accepting these Requirements, Contractor agrees to comply fully with all the Requirements. If Contractor wishes to provide Cingular with services that are not in full compliance with the Requirements, it shall request and negotiate with the Cingular Sponsor a written waiver.
I. REMEDIES. Failure of Contractor to comply with the Requirements may result in Cingular's terminating the Agreement and exercising any other legal rights it may have.
J. CONFLICTS/NON-INTEGRATION. These Requirements are intended to supplement and not replace any written agreements that the Contractor may enter into with Cingular. In the event of a conflict between these Requirements and a signed written agreement between the parties, the signed written agreement shall control. In the event there is a conflict between these Requirement and any oral agreement between the parties, these Requirements shall control.
4.6 OWNERSHIP OF WORK PRODUCT
* * *
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
Services
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives:
SYNCHRONOSS TECHNOLOGIES, INC. CINGULAR WIRELESS LLC By: By: ---------------------------------- ------------------------------------ Printed Name: Printed Name: ------------------------ -------------------------- Title: Title: ------------------------------- --------------------------------- Date: Date: ------------------------------- ---------------------------------- |
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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Appendix 1
EXECUTIVE ORDERS AND FEDERAL REGULATIONS
Work under this Agreement may be subject to the provisions of certain Executive
Orders, federal laws, state laws and associated regulations governing
performance of this Agreement including, but not limited to: Executive Order
11246, Executive Order 11625, Executive Order 11701 and Executive Order 12138,
Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Era
Veteran's Readjustment Assistance Act of 1974. To the extent that such Executive
Orders, federal laws, state laws and associated regulations apply to the Work
under this Agreement, and only to that extent, Supplier (also referred to as
"Contractor") agrees to comply with the provisions of all such Executive Orders,
federal laws, state laws and associated regulations, as now in force or as may
be amended in the future, including, but not limited to, the following:
1. EQUAL EMPLOYMENT OPPORTUNITY DUTIES AND PROVISIONS OF GOVERNMENT CONTRACTORS
In accordance with 41 C.F.R. Section 60-1.4(a), the parties incorporate herein by this reference the regulations and contract clauses required by that section, including, but not limited to, Supplier's agreement that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. Supplier will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.
2. AGREEMENT OF NON SEGREGATED FACILITIES
In accordance with 41 C.F.R. Section 60-1.8, Supplier agrees that it does not and will not maintain or provide for its employees any facilities segregated on the basis of race, color, religion, sex or national origin at any of its establishments, and that it does not, and will not, permit its employees to perform their services at any location, under its control, where such segregated facilities are maintained. The term "facilities" as used herein means waiting rooms, work areas, restaurants and other eating areas, time clocks, rest rooms, washrooms, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees; provided that separate or single-user restrooms and necessary dressing or sleeping areas shall be provided to assure privacy between the sexes.
3. AGREEMENT OF AFFIRMATIVE ACTION PROGRAM
Supplier agrees that it has developed and is maintaining an Affirmative Action Plan as required by 41 C.F.R. Section 60-1.4(b).
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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4. AGREEMENT OF FILING
Supplier agrees that it will file, per current instructions, complete and accurate reports on Standard Form 100 (EE0-1), or such other forms as may be required under 41 C.F.R. Section 60-1.7(a).
5. AFFIRMATIVE ACTION FOR HANDICAPPED PERSONS AND DISABLED VETERANS, VETERANS OF THE VIETNAM ERA.
In accordance with 41 C.F.R. Section 60-250.20, and 41 C.F.R. Section 60-741.20, the parties incorporate herein by this reference the regulations and contract clauses required by those provisions to be made a part of government contracts and subcontracts.
6. UTILIZATION OF SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS CONCERNS
As prescribed in 48 C.F.R., Ch. 1, 19.708(a):
(a) It is the policy of the United states that small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals and small business concerns owned and controlled by women shall have the maximum practicable opportunity to participate in performing contracts let by any Federal agency, including contracts and subcontracts for systems, assemblies, components and related services for major systems. It is further the policy of the United States that its prime contractors establish procedures to ensure the timely payment amounts due pursuant to the terms of the subcontracts with small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals and small business concerns owned and controlled by women.
(b) Supplier hereby agrees to carry out this policy in the awarding of subcontracts to the fullest extent consistent with efficient contract performance. Supplier further agrees to cooperate in any studies or surveys as may be conducted by the United States Small Business Administration or the awarding agency of the United States as may be necessary to determine the extent of Supplier's compliance with this clause.
(c) As used in this Agreement, the term "small business concern" shall mean a small business as defined pursuant to Section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto. The term "small business concern owned and controlled by socially and economically disadvantaged individuals" shall mean a small business concern (i) which is at least fifty-one percent (51%) unconditionally owned by one or more socially and economically disadvantaged individuals, or, in the case of any publicly owned business, at least fifty-one percent (51%) of the stock of which is unconditionally owned by one or more socially and economically disadvantaged individuals; and (ii) whose management and daily business operations are controlled by one or more such individuals. This term shall also mean a small business concern that is at least fifty-one percent (51%) unconditionally owned by an economically disadvantaged Indian tribe or Native Hawaiian Organization, or a publicly owned business having at least fifty-one percent (51%) of its stock unconditionally owned by one of these entities which has its management and daily business controlled by members of an economically disadvantaged Indian tribe or Native Hawaiian Organization, and which meets the requirements of 13 CRF part 124. Supplier shall presume that "socially and economically disadvantaged individual" includes Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian Americans and other minorities, or any other individual found to be disadvantaged by the Administration pursuant to Section 8(a) of the Small
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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Business Act. Supplier shall presume that socially and economically disadvantaged entities also include Indian Tribes and Native Hawaiian Organizations.
(d) The term "small business concern owned and controlled by women" shall mean a small business concern (i) which is at least fifty-one percent (51%) owned by one or more women, or, in the case of any publicly owned business, at least fifty-one percent (51%) of the stock of which is owned by one or more women, and (ii) whose management and daily business operations are controlled by one or more women; and
(e) Suppliers acting in good faith may rely on written representations by their subcontractors regarding their status as a small business concern, a small business concern owned and controlled by socially and economically disadvantaged individuals or a small business concern owned and controlled by women.
7. SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS SUBCONTRACTING PLAN.
The subcontractor will adopt a plan similar to the plan required by 48 CFR Ch. 1 at 52.219-9.
The information contained in this Agreement is not for use or disclosure outside CINGULAR, Supplier, their affiliated companies and their third party representatives, except under written Agreement by the contracting Parties.
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Cingular Wireless LLC RFP SH092801 Appendix 2(a) PRIME SUPPLIER MBE/WBE/DVBE PARTICIPATION PLAN |
PRIME SUPPLIER NAME __________________________
ADDRESS: _____________________________________
TELEPHONE NUMBER: ____________________________
DESCRIBE GOODS OR SERVICES BEING PROVIDED UNDER THIS AGREEMENT:
DESCRIBE YOUR M/WBE-DVBE OR SUPPLIER DIVERSITY PROGRAM AND THE PERSONNEL DEDICATED TO THAT PROGRAM:
THE FOLLOWING, TOGETHER WITH ANY ATTACHMENTS IS SUBMITTED AS AN MBE/WBE/DVBE PARTICIPATION PLAN.
1. GOALS
A. WHAT ARE YOUR MBE/WBE/DVBE PARTICIPATION GOALS?
- MINORITY BUSINESS ENTERPRISES (MBES) _____________%
- WOMEN BUSINESS ENTERPRISES (WBES) _____________%
- DISABLED VETERANS BUSINESS _____________% ENTERPRISES (DVBES)
B. WHAT IS THE ESTIMATED ANNUAL VALUE OF THIS CONTRACT WITH CINGULAR WIRELESS? ______________
C. WHAT ARE THE DOLLAR AMOUNTS OF YOUR PROJECTED MBE/WBE/DVBE PURCHASES?
- MINORITY BUSINESS ENTERPRISES (MBES) _____________
- WOMEN BUSINESS ENTERPRISES (WBES) _____________
- DISABLED VETERANS BUSINESS _____________ ENTERPRISES (DVBES)
* SEE MBE/WBE/DVBE CANCELLATION CLAUSE IN AGREEMENT FOR DEFINITIONS OF MBE, WBE, AND DVBE*
2. LIST THE PRINCIPAL GOODS AND/OR SERVICES TO BE SUBCONTRACTED TO MBE/WBE/DVBEs OR DELIVERED THROUGH MBE/WBE/DVBE VALUE ADDED RESELLERS.
The information contained herein is not for use or disclosure outside CINGULAR, supplier, their affiliated and subsidiary companies, and their third party representatives, except under written agreement.
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
9/14/99
Rev. 02/26/01
DETAILED PLAN FOR USE OF M/WBES-DVBES AS SUBCONTRACTORS, DISTRIBUTORS, VALUE ADDED RESELLERS
For every product and service you intend to use, provide the following information: (Attach additional sheets if necessary)
PRODUCTS CLASSIFICATION /SERVICES COMPANY NAME (MBE/WBE/DVBE) TO BE PROVIDED $ VALUE DATE TO BEGIN ------------ -------------- -------------- ------- ------------- |
3. SELLER AGREES THAT IT WILL MAINTAIN ALL NECESSARY DOCUMENTS AND RECORDS TO SUPPORT ITS EFFORTS TO ACHIEVE ITS MBE/WBE/DVBE PARTICIPATION GOAL (S). SELLER ALSO ACKNOWLEDGES THE FACT THAT IT IS RESPONSIBLE FOR IDENTIFYING, SOLICITING AND QUALIFYING MBE/WBE/DVBE SUBCONTRACTORS, DISTRIBUTORS AND VALUE ADDED RESELLERS.
4. THE FOLLOWING INDIVIDUAL, ACTING IN THE CAPACITY OF MBE/WBE/DVBE COORDINATOR FOR SELLER, WILL:
- ADMINISTER THE MBE/WBE/DVBE PARTICIPATION PLAN,
- SUBMIT SUMMARY REPORTS, AND
- COOPERATE IN ANY STUDIES OR SURVEYS AS MAY BE REQUIRED IN ORDER TO DETERMINE THE EXTENT OF COMPLIANCE BY THE SELLER WITH THE PARTICIPATION PLAN.
NAME: (PRINTED) ________________________________________________________________
TITLE: _________________________________________________________________________
TELEPHONE NUMBER: ______________________________________________________________
AUTHORIZED SIGNATURE:___________________________________________________________
The information contained herein is not for use or disclosure outside CINGULAR, supplier, their affiliated and subsidiary companies, and their third party representatives, except under written agreement.
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
DATE: ____________________
The information contained herein is not for use or disclosure outside CINGULAR, supplier, their affiliated and subsidiary companies, and their third party representatives, except under written agreement.
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
Cingular Wireless LLC RFP SHO92801
Appendix 2(b)
CINGULAR
M/WBE-DVBE QUARTERLY RESULTS REPORT
NOTE: Subcontracting & Value Added Reseller Results should reflect ONLY M/WBE-DVBE dollars directly traceable to purchases DURING THE REPORT QUARTER.
1. REPORTING COMPANY: 2. CONTRACT/WORK ORDER NUMBER: 3. REPORT QUARTER: Name: _________________________ ___________________________ This report reflects the utilization of Minority Address: ______________________ (If available) Business Enterprise/ Woman _______________________________ Business Enterprise/Disabled City, _________________________ Veterans Enterprise State, ________________________ participation for period Zip: __________________________ through (Please indicate Telephone: ____________________ dates) PARTICIPATION GOAL PARTICIPATION ACHIEVEMENT 4. 5. ACTUAL FOR QUARTER MBE WBE DVBE --- --- ---- ANNUAL Subcontracting Dollars GOAL Value Added Reseller $__ $__ $__ MBE WBE DVBE Dollars ---- --- ---- Total Purchase $__ $__ $__ Percent of Total Purchases __% __% __% |
The information contained herein is not for use or disclosure outside CINGULAR, supplier, their affiliated and subsidiary companies, and their third party representatives, except under written agreement.
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
9/14/99
Rev. 02/26/01
Agreement Number: _____ Dollars $______________ Percentage of Total Purchases %__ %__ %__ VALUE ADDED RESELLER* RESULTS * SUPPLIER WHO PURCHASES PRODUCTS/SERVICES FROM AN ORIGINAL EQUIPMENT MANUFACTURER OR OTHER PRIME SUPPLIER FOR RESALE AND PROVIDES ENHANCEMENTS OR ADDED VALUE TO THE BASIC PRODUCT. (Attach additional sheets if necessary) 6. Ethnic/Gender: Total Dollars: -------------- -------------- Name: ___________________________________________________________________________________________ Address: ________________________________________________________________________________________ City, State, Zip: _______________________________________________________________________________ Telephone: _______________________________ Goods or Services: ______________________________________________________________________________ Ethnic/Gender: Total Dollars: -------------- -------------- Name: ___________________________________________________________________________________________ Address: ________________________________________________________________________________________ City, State, Zip: _______________________________________________________________________________ Telephone: _______________________________ Goods or Services: ______________________________________________________________________________ Agreement Number: _________________________________________________________________________________________________ |
The information contained herein is not for use or disclosure outside CINGULAR, supplier, their affiliated and subsidiary companies, and their third party representatives, except under written agreement.
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
The information contained herein is not for use or disclosure outside CINGULAR, supplier, their affiliated and subsidiary companies, and their third party representatives, except under written agreement.
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
Agreement Number: _____
EXHIBIT 1
It is the policy of Cingular Wireless to take active steps to ascertain any identified or suspected risks to the electronic information and services of the company through the use of, providing external access to, outsourcing to or employment of Contractors. Acceptance of this exhibit provided an explicit assertion of compliance with each of the individual provisions as enumerated within this exhibit.
Security Compliance Requirements
* * *
The information contained herein is not for use or disclosure outside CINGULAR, supplier, their affiliated and subsidiary companies, and their third party representatives, except under written agreement.
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
Agreement Number: _____
CINGULAR WIRELESS
EXHIBIT B
EXECUTIVE ORDERS AND FEDERAL REGULATIONS
Work under this Agreement may be subject to the provisions of certain Executive
Orders, federal laws, state laws, and associated regulations governing
performance of this contract including, but not limited to: Executive Order
11246, Executive Order 11625, Executive Order 11701, and Executive Order 12138,
Section 503 of the Rehabilitation Act of 1973 as amended and the Vietnam Era
Veteran's Readjustment Assistance Act of 1974. To the extent that such Executive
Orders, federal laws, state laws, and associated regulations apply to the work
under this Agreement, and only to that extent, SUPPLIER (also referred to as
"SUPPLIER") agrees to comply with the provisions of all such Executive Orders,
federal laws, state laws, and associated regulations, as now in force or as may
be amended in the future, including, but not limited to the following:
1. EQUAL EMPLOYMENT OPPORTUNITY DUTIES AND PROVISIONS OF GOVERNMENT SUPPLIERS
In accordance with 41 C.F.R. Section 60-1.4(a), the parties incorporate herein by this reference the regulations and contract clauses required by that section, including but not limited to, SUPPLIER's agreement that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The SUPPLIER will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin.
2. AGREEMENT OF NON SEGREGATED FACILITIES
In accordance with 41 C.F.R. Section 60-1.8, SUPPLIER agrees that it does not and will not maintain or provide for its employees any facilities segregated on the basis of race, color, religion, sex, or national origin at any of its establishments, and that it does not and will not permit its employees to perform their services at any location, under its control, where such segregated facilities are maintained. The term "facilities" as used herein means waiting rooms, work areas, restaurants and other eating areas, time clocks, rest rooms, wash rooms, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees; provided, that separate or single-user restroom and necessary dressing or sleeping areas shall be provided to assure privacy between the sexes.
3. AGREEMENT OF AFFIRMATIVE ACTION PROGRAM
SUPPLIER agrees that it has developed and is maintaining an Affirmative Action Plan as required by 41 C.F.R. Section 60-1.4(b).
4. AGREEMENT OF FILING
SUPPLIER agrees that it will file, per current instructions, complete and accurate reports on Standard Form 100 (EE0-1), or such other forms as may be required under 41 C.F.R. Section 60-1.7(a).
5. AFFIRMATIVE ACTION FOR HANDICAPPED PERSONS AND DISABLED VETERANS, VETERANS OF THE VIETNAM ERA.
In accordance with 41 C.F.R. Section 60-250.20, and 41 C.F.R. Section 60-741.20, the parties incorporate herein by this reference the regulations and contract clauses required by those provisions to be made a part of government contracts and subcontracts.
The information contained herein is not for use or disclosure outside CINGULAR, supplier, their affiliated and subsidiary companies, and their third party representatives, except under written agreement.
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
Agreement Number: _____
6. EXECUTIVE ORDER 13201 COMPLIANCE
In accordance with 29 C.F.R. Part 470.2(b) the parties incorporate by reference the regulations and contract clauses required by those provisions to be made a part of covered subcontracts and purchase orders and SUPPLIER agrees to comply with the provisions of 29 CFR Part 470.
7. UTILIZATION OF SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS CONCERNS
AS PRESCRIBED IN 48 C.F.R., CH. 1, 19.708(A):
(A) It is the policy of the United states that small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals and small business concerns owned and controlled by women shall have the maximum practicable opportunity to participate in performing contracts let by any Federal agency, including contracts and sub-contracts for systems, assemblies, components, and related services for major systems. It is further the policy of the United States that its prime SUPPLIERs establish procedures to ensure the timely payment amounts due pursuant to the terms of the subcontracts with small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals and small business concerns owned and controlled by women.
(B) The SUPPLIER hereby agrees to carry out this policy in the awarding of subcontracts to the fullest extent consistent with efficient contract performance. The SUPPLIER further agrees to cooperate in any studies or surveys as may be conducted by the United States Small Business Administration or the awarding agency of the United States as may be necessary to determine the extent of the SUPPLIER's compliance with this clause.
(C) As used in this contract, the term small business concern shall mean a small business as defined pursuant to section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto. The term small business concern owned and controlled by socially and economically disadvantaged individuals shall mean a small business concern which is at least 51 percent unconditionally owned by one or more socially and economically disadvantaged individuals; or, in the case of any publicly owned business, at least 51 percent of the stock of which is unconditionally owned by one or more socially and economically disadvantaged individuals; and (2) whose management and daily business operations are controlled by one or more such individuals. This term also means small business concern that is at least 51 percent unconditionally owned by an economically disadvantaged Indian tribe or Native Hawaiian Organization, or a publicly owned business having at least 51 percent of its stock unconditionally owned by one of these entities which has its management and daily business controlled by members of an economically disadvantaged Indian tribe or Native Hawaiian Organization, and which meets the requirements of 13 CRF part 124. The SUPPLIER shall presume that socially and economically disadvantaged individual include Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian Americans, and other minorities, or any other individual found to be disadvantaged by the Administration pursuant to section 8(a) of the Small business Act. The SUPPLIER shall presume that socially and economically disadvantaged entities also include Indian Tribes and Native Hawaiian Organizations.
(D) The term "small business concern owned and controlled by women" shall mean a small business concern (i) which is at least 51 percent owned by one or more women, or, in the case of any publicly owned business, at least 51 percent of the stock of which is owned by one or more women, and (ii) whose management and daily business operations are controlled by one or more women; and
(E) SUPPLIERs acting in good faith may rely on written representations by their sub-SUPPLIERs regarding their status as a small business concern, a small business concern owned and controlled by socially and economically disadvantage individuals or a small business concern owned and controlled by women.
8. SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS SUB-CONTRACTING PLAN. THE SUB-SUPPLIER WILL ADOPT A PLAN SIMILAR TO THE PLAN REQUIRED BY 48 CFR CH. 1 AT 52.219-9.
The information contained herein is not for use or disclosure outside CINGULAR, supplier, their affiliated and subsidiary companies, and their third party representatives, except under written agreement.
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
750 Route 202 South Bridgewater, NJ 08807 (SYNCHRONOSS TECHNOLOGIES INC. LOGO) www.synchronoss.com
(CINGULAR RAISING THE BAR(SM) LOGO)
CINGULAR ONLINE
Cingular Online Order Management Center (OMC)
Statement of Work (SOW)
September 1, 2005
Final
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
(C) 2005 Synchronoss Technologies Inc Synchronoss Technologies, Inc Confidential & Proprietary
750 Route 202 South Bridgewater, NJ 08807 (SYNCHRONOSS TECHNOLOGIES INC. LOGO) www.synchronoss.com
TABLE OF CONTENTS
1.0 INTRODUCTION......................................................... 4 1.1 GENERAL AGREEMENTS............................................... 4 1.2 OVERVIEW PROGRAM SCOPE........................................... 4 2.0 SERVICE TERM......................................................... 4 3.0 * * * PROGRAM OBJECTIVES............................................. 5 3.1 * * * PROCESSING................................................. 5 3.2 * * * SCOPE...................................................... 5 TABLE 1.0: * * * *................................................... 5 3.3 * * *............................................................ 5 4.0 * * * SOLUTIONS...................................................... 6 4.1 * * *............................................................ 6 4.2 * * *............................................................ 6 4.3 * * *............................................................ 6 4.4 * * *............................................................ 6 5.0 * * *................................................................ 7 5.1 * * * REQUIREMENTS............................................... 7 5.2 SECURE ENVIRONMENT............................................... 7 5.3 ACCESS SECURITY.................................................. 7 5.4 SECURITY AND PRIVACY............................................. 7 5.5 ENVIRONMENTAL STANDARDS.......................................... 7 5.6 MONITORING....................................................... 8 5.7 BACKUPS.......................................................... 8 6.0 DISASTER RECOVERY (DR)............................................... 9 6.1 DR SOLUTION OVERIEW.............................................. 9 6.2 DR SERVICE LEVELS................................................ 9 7.0 CINGULAR TERMINATION FOR CONVENIENCE AND BUY-OUT PROVISION........... 10 7.1 CINGULAR TERMINATION FOR CONVIENENCE............................. 10 7.2 DEDICATED INFRASTRUCTURE BUYOUT.................................. 10 8.0 RELATED DOCUMENTS.................................................... 12 9.0 SIGNOFF SHEET........................................................ 13 |
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
(C) 2005 Synchronoss Technologies Inc Synchronoss Technologies, Inc Confidential & Proprietary
750 Route 202 South Bridgewater, NJ 08807 (SYNCHRONOSS TECHNOLOGIES INC. LOGO) www.synchronoss.com
1.0 INTRODUCTION
1.1 GENERAL AGREEMENTS
This Statement of Work ("SOW") between Cingular Wireless LLC ("Cingular") and Synchronoss Technologies, Inc. ("STI") is governed by the Professional Services Agreement ("PSA") dated September 1, 2005. The parties agree that this SOW confirms and memorializes an agreement with respect to services provided to Cingular by STI commencing April 28, 2003 and replaces and supersedes the Cingular eCommerce Statement of Work dated July 16, 2003 and the "Appendix A: AWS Order Management Center (OMC) SOW", dated July, 2003 as amended in their entirety. As such, the parties agree that the Cingular eCommerce Statement of Work dated July 16, 2003 and the "Appendix A: AWS Order Management Center (OMC) SOW", dated July 2003, as amended, are terminated as of the date hereof, provided, any rights that accrued thereunder prior to the date hereof shall survive termination.
Defined terms used in this SOW will have the meanings ascribed to them in this SOW or in the PSA. In the event of a conflict between this SOW and the PSA, the terms of the SOW will govern. SOW modifications need to be in writing, as well as mutually agreed upon by both parties.
1.2 OVERVIEW PROGRAM SCOPE
The scope of this SOW is to define the work activities, * * * pricing, forecasting process, service level agreements and remedies associated with the Services performed by STI for Cingular's internet organization ("Cingular Online").
Cingular Online objectives are to streamline the back office management process relating to the sale of wireless telecommunications services by Cingular Online, improve cycle times for such sales, reduce the transaction cost per subscriber and create an exceptional customer experience. This SOW provides Cingular Online with an Application Service Provider ("ASP") solution that enables STI to manage Cingular's business objectives. The Services to be performed by STI under this SOW are as follows:
CUSTOMER ONLINE ORDER MANAGEMENT CENTER (OMC):
* * *
* * *:
- * * *
2.0 SERVICE TERM
The term of this SOW is * * * from the date of signature of this SOW (the "Initial Term"). The SOW will renew in successive additional * * * terms, unless either party provides written notice of non-renewal * * * prior to the date of termination. Any time during the term of this SOW, either party may propose an increase or decrease in the scope of this SOW. In such event, the parties will negotiate in good faith an amendment to this SOW with the revised scope, deliverables, and associated pricing.
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750 Route 202 South Bridgewater, NJ 08807 (SYNCHRONOSS TECHNOLOGIES INC. LOGO) www.synchronoss.com
3.0 * * * PROGRAM OBJECTIVES
The objectives for the Order Management Center ("OMC") are to establish and manage scalable, reliable and flexible center operations. * * * STI is required to closely adhere to all of Cingular's business processes and security standards in performing its * * *Services to ensure a seamless Cingular branded customer experience. * * *
3.1 * * * PROCESSING
The primary source of * * * will be generated from Cingular * * *. The goal
of the * * * is to consistently deliver against the SLA commitments. The *
* * operating hours will be * * *. The * * * will operate * * *.
3.2 * * * SCOPE
* * * commitments will be adjusted * * *. A * * * forecast will be provided to STI by Cingular on the * * *. The forecast will provide STI with the revised * * *. This data will be utilized to revise the * * * commitments for the * * *. Addendum A describes in detail the forecast methodology.
TABLE 1.0: PROJECTED * * * 2005*
* * * * * * * * * * * * * * * * * * |
* The forecast process is defined in Addendum A - Pricing Agreement. SLA and Remedies are defined in Addendum B.
3.3 * * *
A key objective of the * * *is to consistently * * *. In order to accomplish this objective, the * * * will * * *. In addition, the * * * agents will * * *. * * *
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4.0 * * * SOLUTIONS
4.1 * * *
* * *
4.2 * * *
* * *
4.3 * * *
* * *
4.4 * * *
* * *
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5.0 * * * HOSTING
The objective of hosting the * * * is to provide Cingular with a * * *. The
costs identified in this SOW are based upon STI standard pricing.
Significant deviations from the STI systems architecture that exists on the
Effective Date could impact the cost and schedule for the * * *effort. In
addition to * * *, STI will provide * * * support for this environment. * *
* services are defined in Addendum D * * * Operations Management Document.
5.1 HOSTING REQUIREMENTS
STI will provide and maintain * * *.
STI will provide to Cingular a list of all hardware, software, and equipment located at STI's premises that will be used to perform the Services required under this SOW. STI shall provide sufficient hardware, software and equipment to ensure * * *% availability of the Services. Subject to Cingular's payment of the fees set forth in Section 7.2, Cingular shall own the hardware and equipment purchased by STI to fulfill its obligations under this SOW (the "Dedicated Infrastructure").
5.2 SECURE ENVIRONMENT
The premises, hardware, and application must be accessible only to authorized personnel. * * *
5.3 ACCESS SECURITY
Access control is achieved via a combination of access control * * *.
5.4 SECURITY AND PRIVACY
In the event STI receives Cingular Data (as defined in the PSA), STI may not use such Cingular Data for any purpose other than the fulfillment of STI's obligations of this SOW. STI may not provide such Cingular Data to any third-party for any reason, unless specifically authorized in writing by Cingular; provided, however, if STI is required to produce such Cingular Data to comply with any legal, regulatory, law enforcement or similar requirements or investigations, STI may do so after providing Cingular i) prior written notice of its intent to produce the Cingular Data and ii) an opportunity to seek a protective order or similar mechanism to prevent disclosure as Cingular deems necessary. STI shall comply with any other Cingular security or privacy requirements in effect at any time during the term of this SOW. * * *. At a minimum, STI will undertake the following measures to ensure the security of all Cingular Data and other Cingular information:
* * *
5.5 ENVIRONMENTAL STANDARDS
Any hardware required to perform the Services under this SOW will be protected from damage by:
* * *
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750 Route 202 South Bridgewater, NJ 08807 (SYNCHRONOSS TECHNOLOGIES INC. LOGO) www.synchronoss.com
5.6 MONITORING
The following monitoring tools and practices will be provided by STI.
* * *
5.7 BACKUPS
Data and applications will be automatically backed up * * *. * * *
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750 Route 202 South Bridgewater, NJ 08807 (SYNCHRONOSS TECHNOLOGIES INC. LOGO) www.synchronoss.com
6.0 DISASTER RECOVERY (DR)
STI will provide a disaster recovery solution for the all Services required under this SOW that enables rapid restoration of all functions of the system in event of a long-term service disruption to * * *. This section provides an overview of the infrastructure required to support the disaster recovery solution as well as the service levels associated with the solution.
6.1 DR SOLUTION OVERIEW
STI will * * * provide a highly available system that can restore the * * * system to * * *. * * *
A * * * will be implemented to ensure that * * *.
6.2 DR SERVICE LEVELS
The following service levels are associated with the DR solution:
- Service restoration time: * * *
- System performance level: * * *
- System SLA's: * * *
NOTE: This solution will rely on the implementation of a dedicated, private circuit (e.g. friends net connection) between STI's Bridgewater, NJ office and Cingular's Bothell, WA facility.
- DR test will be performed * * *.
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7.0 CINGULAR TERMINATION FOR CONVENIENCE AND BUY-OUT PROVISION
In the event Cingular desires to terminate the SOW prior to the end of its term, Cingular may exercise its right for Termination for Convenience as described in Section 7.1. In addition, STI may provide transition services subject to a mutually agreeable SOW that may include the following terms:
1. Specific key milestones and dates in which Cingular can exercise the right to migrate all or part of the * * *.
2. Identification of the work effort needed and the related costs to establish a mutually acceptable SOW to help transition the production environment to Cingular.
7.1 CINGULAR TERMINATION FOR CONVIENENCE
1. If Cingular or STI terminates for convenience with less than * * *notice, Cingular or Synchronoss (whichever party terminates) will pay the other a termination fee equal to * * *% of * * * (the "Termination Fee").
2. In the case of a termination by Cingular, * * *.
7.2 DEDICATED INFRASTRUCTURE BUYOUT
1. Upon any termination of the PSA or this SOW prior to expiration of the Initial Term, Cingular may, at its discretion, pay the applicable Buyout Fee set forth in Table 2 below in exchange for ownership of the Dedicated Infrastructure (if Cingular elects not to pay the Buyout Fee, then STI shall retain ownership of the Dedicated Infrastructure). At the end of the * * *of the Term of the Agreement, ownership of the Dedicated Infrastructure will automatically vest in Cingular without further action.
TABLE 2: BUYOUT FEE*
* * * BUYOUT ----- ------ * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * |
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750 Route 202 South Bridgewater, NJ 08807 (SYNCHRONOSS TECHNOLOGIES INC. LOGO) www.synchronoss.com
* * * BUYOUT ----- ------ * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * * * * $* * * |
* The Buyout Fee in this table is in addition to the Termination Fee defined in paragraph 1 and 2 of section 7.1.
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750 Route 202 South Bridgewater, NJ 08807 (SYNCHRONOSS TECHNOLOGIES INC. LOGO) www.synchronoss.com
8.0 RELATED DOCUMENTS
1. Addendum A - * * * Pricing Agreement doc
2. Addendum B - * * * SLA and Remedies doc
3. Addendum C - Cingular Master Professional Services Agreement (PSA)
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9.0 SIGNOFF SHEET
IN WITNESS WHEREOF, this Agreement is executed by the duly authorized representatives of the Parties.
SYNCHRONOSS TECHNOLOGIES, INC. SYNCHRONOSS TECHNOLOGIES, INC. Signature: Signature: -------------------------- ----------------------------- Name: Name: ------------------------------- ---------------------------------- Title: Title: ------------------------------ --------------------------------- Date: Date: ------------------------------- ---------------------------------- CINGULAR CINGULAR Signature: Signature: -------------------------- ----------------------------- Name: Name: ------------------------------- ---------------------------------- Title: Title: ------------------------------ --------------------------------- Date: Date: ------------------------------- ---------------------------------- |
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(C) 2005 Synchronoss Technologies Inc Synchronoss Technologies, Inc Confidential & Proprietary
750 Route 202 South Bridgewater, NJ 08807 (SYNCHRONOSS TECHNOLOGIES INC. LOGO) www.synchronoss.com CINGULAR CINGULAR Signature: Signature: -------------------------- ----------------------------- Name: Name: ------------------------------- ---------------------------------- Title: Title: ------------------------------ --------------------------------- Date: Date: ------------------------------- ---------------------------------- |
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(C) 2005 Synchronoss Technologies Inc Synchronoss Technologies, Inc Confidential & Proprietary
750 Route 202 South Bridgewater, NJ 08807 (SYNCHRONOSS TECHNOLOGIES INC. LOGO) www.synchronoss.com
(CINGULAR RAISING THE BAR(SM) LOGO)
CINGULAR ONLINE
Cingular Online Order Management Center (OMC)
Addendum A - Pricing Agreement
September 1, 2005
Final
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(C) 2005 Synchronoss Technologies Inc. Synchronoss Technologies, Inc Confidential & Proprietary
(SYNCHRONOSS TECHNOLOGIES INC. LOGO)
TABLE OF CONTENTS
1.0 * * * Pricing Schedule................................................. 3 1.1 * * * Service Fee................................................... 3 1.2 Cingular Online Order Mangement Center (OMC) - * * * Service Fees... 4 1.3 Cingular Online Order Management Center (OMC) - * * * Service Fees.. 5 1.4 Cingular Online Order Management Center (OMC) - * * * Service Fees.. 6 2.0 Forecasting............................................................ 7 2.1 * * * Forecast...................................................... 7 2.2 * * * Forecast...................................................... 7 3.0 Pricing Assumptions.................................................... 8 4.0 Travel and Living Expenses............................................. 10 |
CONFIDENTIAL TREATMENT REQUESTED
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1.0 * * * PRICING SCHEDULE
This section of the SOW provides the * * * service fees associated with the Agreement. The service fees in this SOW go into effect on the Effective Date of the Agreement. Modifications to any of the prices herein need to be in writing, and mutually agreed upon by both parties.
1.1 * * * SERVICE FEE
Table 1 represents the * * * fee for the * * *. The * * * fee is applied to every * * *.
TABLE 1: * * * SERVICE FEE
TIERED GATEWAY SERVICE SERVICE FEE TYPE FEE ID SERVICE CHARGE * * * FEE ---------------- ------- -------------- --------- * * * *T1 * * * $* * * SERVICE T2 * * * $* * * FEE T3 * * * $* * * |
* T = * * *Service Fee
1. The * * * Service Fee assumes * * * may contain a maximum of * * * of service per * * *. * * *
2. The * * * Price applies to all * * * in that tier. * * *
3. * * * Notwithstanding anything herein to the contrary, if the initial or final period of the term of the Agreement does not span an entire * * *, the * * * shall be a prorated * * * based on the * * *.
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1.2 CINGULAR ONLINE ORDER MANGEMENT CENTER (OMC) - * * * SERVICE FEES
Table 3 represents the service fees associated with * * *.
TABLE 3: OMC * * * SERVICE FEES:
* * * Fees ----------------------------------------------------- SERVICE * * * * * * * * * FEE CINGULAR SERVICE SERVICE --------------- --------------- ------ TYPE SYSTEM FEE ID CHARGE * * * * * * * * * * * * * * * SLA ------- -------- ------- ------- ------ ------ ------ ------ ------ -------- * * * * * * ** * * * * * $* * * $* * * $* * * $* * * $* * * Addendum B * * * * * * * * * $* * * $* * * $* * * $* * * $* * * Addendum B * * * * * * * * * * * * $* * * $* * * $* * * $* * * $* * * Addendum B * * * * * * * * * $* * * $* * * $* * * $* * * $* * * Addendum B * * * * * * * * * * * * $* * * $* * * $* * * $* * * $* * * Addendum B * * * * * * * * * $* * * $* * * $* * * $* * * $* * * Addendum B * * * * * * * * * * * * $* * * $* * * $* * * $* * * $* * * Addendum B * * * * * * * * * $* * * $* * * $* * * $* * * $* * * Addendum B * * * * * * * * * * * * $* * * $* * * $* * * $* * * $* * * Addendum B * * * * * * * * * $* * * $* * * $* * * $* * * $* * * Addendum B * * * * * * * * * * * * $* * * $* * * $* * * $* * * $* * * Addendum B * * * * * * * * * $* * * $* * * $* * * $* * * $* * * Addendum B * * * * * * * * * * * * $* * * $* * * $* * * $* * * $* * * Addendum B * * * * * * * * * * * * $* * * $* * * $* * * $* * * $* * * * * * * * * * * * * * * $* * * $* * * $* * * $* * * $* * * * * * * * * * * * * * * $* * * $* * * $* * * $* * * $* * * Addendum B |
* O = * * * Fees in * * *
** TBD = To Be Determined when sufficient data is available
*** * * *
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1.3 CINGULAR ONLINE ORDER MANAGEMENT CENTER (OMC) - * * * SERVICE FEES
Table 4 represents the service fees associated with * * *
TABLE 4: OMC * * * SERVICE FEE
* * *FEES --------------------------------------------------- * * * * * * * * * SERVICE --------------- --------------- --------------- SERVICE FEE TYPE FEE ID SERVICE CHARGE * * * * * * * * * * * * * * * * * * ---------------- ------- -------------- ------ ------ ------ ------ ------ ------ * * * ** * * * * * * * * * * * $* * * $* * * * * * * * * * * * * * * * * * * * * $* * * $* * * * * * * * * * * * * * * * * * * * * * * * $* * * $* * * * * * * * * * * * * * * * * * * * * $* * * $* * * * * * * * * * * * * * * * * * * * * * * * $* * * $* * * * * * * * * * * * * * * * * * * * * $* * * * * * * * * * * * * * * * * * * * * * * * * * * $* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * $* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * $* * * $* * * $* * * $* * * $* * * $* * * |
* B = * * *
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1.4 CINGULAR ONLINE ORDER MANAGEMENT CENTER (OMC) -* * * SERVICE FEES
Table 5 represents the service fees associated for * * *.
TABLE 5: * * * FEES
* * *FEES --------------------------------------------------- * * * * * * * * * SERVICE --------------- --------------- --------------- SERVICE FEE TYPE FEE ID SERVICE CHARGE * * * * * * * * * * * * * * * * * * ---------------- ------- -------------- ------ ------ ------ ------ ------ ----- * * * * * * * * * $* * * * * * $* * * * * * $* * * * * * * * * * * * * * * $* * * * * * $* * * * * * $* * * * * * * * * * * * * * * $* * * * * * $* * * * * * $* * * * * * * * * * * * * * * $* * * * * * $* * * * * * $* * * * * * * * * * * * * * * $* * * $* * * $* * * $* * * $* * * $* * * * * * * * * * * * $* * * $* * * $* * * $* * * $* * * $* * * * * * * * * * * * $* * * $* * * $* * * $* * * $* * * $* * * * * * * * * * * * $* * * $* * * $* * * $* * * $* * * $* * * |
* T = * * * Fees
** * * *
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2.0 FORECASTING
2.1 * * * FORECAST
Cingular will provide Synchronoss with a * * * forecast on or about * * *. The forecast will provide Synchronoss with * * *. If the forecast is not received * * *Synchronoss Technologies (STI) will invoke the prior * * *forecast.
* * *
2.2 * * * FORECAST
Cingular will provide Synchronoss with * * *. If the forecast is not received * * * Synchronoss Technologies (STI) will invoke the prior * * * forecast for * * *.
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3.0 PRICING ASSUMPTIONS
1. STI and Cingular will meet once every 3-6 months to review and adjust the * * * prices where appropriate.
2. Synchronoss and Cingular agree to review and adjust where appropriate the * * * fees * * * after * * * is implemented for this * * *. Cingular will determine, at its option, when this review will take place. Any adjustment to * * *will be mutually agreed to by both parties and the pricing table amended as soon as possible.
3. Within * * * after signature of the SOW, STI agrees to meet and reassess * * *. Any adjustments would be mutually agreed to by both parties
4. In the event that the time studies reveal a material change in costs, greater than * * * %, both parties agree to review in detail the core reason for the change. In the event that a change is attributed to performance, then both parties will mutually agree if a change is warranted.
5. The service fee in this appendix is for * * *.
6. Service levels apply only to * * *. * * *
7. STI anticipates * * *. These * * * could be priced at a different rate. The rate for * * * would be determined by * * *. * * *
8. New * * * not identified in Section 3.0 of this SOW would be handled through a written change request. New * * * will require * * *. * * * STI anticipates * * *. * * *
9. Any modifications requested by Cingular that impact * * * may require pricing adjustments.
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OPERATIONS MANAGEMENT TEAM
As part of this SOW, STI will provide Cingular with Operations Management support. The dedicated team will provide Cingular with the following services:
PROGRAM MANAGEMENT:
Responsibilities include project management, business analysis, and functional analysis to support new development, features and functionality. * * *
OPERATIONS MANAGEMENT:
Responsibilities include credit, activation, and order fulfillment, * * * management, service level monitoring and reporting, staffing, * * *, training, and * * *.
For planning purposes STI assumes a minimum number of resources will be required for a period of * * *. At the end of * * * Cingular may adjust the number of FTEs on a * * * basis. Adjustments to the resources must be communicated in writing * * * before the start of the next * * *. Table 6 reflects the schedule and fee for the Operations Management Team.
TABLE 6: OPERATIONS MANAGEMENT TEAM SCHEDULE AND COST
MONTHS/QTR FTES PRICE PER FTE TOTAL ---------- ----- ------------- ------ * * * * * * $* * * $* * * * * * * * * * * * * * * |
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4.0 TRAVEL AND LIVING EXPENSES
Travel and living expenses (e.g.: airfare, hotel, car, meal, phone) associated with program activities will be pre-approved per Cingular travel policy and billed back to Cingular * * *.
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750 Route 202 South Bridgewater, NJ 08807 (SYNCHRONOSS TECHNOLOGIES INC. LOGO) www.synchronoss.com (CINGULAR RAISING THE BAR(SM) LOGO) CINGULAR ONLINE Cingular Online Addendum B - SLA and Remedies September 1, 2005 Final CONFIDENTIAL TREATMENT REQUESTED 7/01/05 (C) 2005 Synchronoss Technologies Inc. |
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TABLE OF CONTENTS
1.0 SERVICE LEVEL REQUIREMENTS AND REMEDIES................................ 3 1.1 * * * SERVICE LEVEL REQUIREMENTS:................................ 3 1.2 * * * SERVICE LEVEL REQUIREMENTS:................................ 4 1.3 * * * SERVICE LEVELS REQUIREMENTS................................ 7 2.0 * * * SERVICE LEVELS AND REMEDIES..................................... 8 2.1 * * * AVAILABILITY............................................... 8 2.2 Description for * * *............................................. 10 3.0 ASSUMPTIONS............................................................ 11 3.1 METHODS AND PROCEDURES (M&P)...................................... 11 3.2 SECURITY.......................................................... 11 3.3 REMEDIES.......................................................... 11 |
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1.0 SERVICE LEVEL REQUIREMENTS AND REMEDIES
1.1 * * * SERVICE LEVEL REQUIREMENTS:
1. * * * % of all * * * in * * * period will be * * *.
2. STI will not be responsible for failures to meet the Service Level Requirement for those * * *.
3. If any * * * is greater than * * * % of the * * *, then STI will * * *.
4. Special events will be reviewed on an individual basis. Cingular and STI agree to meet and review special event requirements on as needed basis. STI will apply best efforts to fulfill special event request.
In the event the Service Level Requirement is not met in a given * * *, STI will provide to Cingular the discount set forth on Table 1 each * * *.
If the Service Level Requirement exceeded in a given * * *, STI will invoice Cingular the * * *.
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(SYNCHRONOSS TECHNOLOGIES INC. LOGO) TABLE 1: * * * SERVICE LEVELS AND REMEDIES |
SLA ID** * * * SLA INDEX *$-DISCOUNT (CREDIT) PER * * * -------- --------------- ------------------------------ * * * * * * * * * % of * * * * * * * * * * * * % of * * * * * * * * * * * * % of * * * * * * * * * * * * * * * * * * * * * % of * * * * * * * * * * * * % of * * * * * * * * * * * * % of * * * * * * * * * * * * % of v * * * * * * * * * % of * * * |
* Remedies will be applied * * * and apply to the total * * * amount from tables 3 and 4 of Addendum A.
** * * * SLA
*** - * * *
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1.2 * * * Service Level Requirements:
1. * * * % of * * * by STI in * * * will be * * * . * * *
2. STI will not be responsible for failure to * * * reasons outside of STI's control; including and without limitation * * *.
3. * * *
4. The * * * process will be * * * by * * *, when available, that will * * *.
5. * * * that are not * * * will not be * * *.
In the event the Service Level Requirement is not met in a given * * *, STI will provide to Cingular * * *.
If the Service Level Requirement is exceeded by STI in a given * * *, STI will * * * Cingular * * *.
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TABLE 2: * * * SERVICE LEVELS AND REMEDIES
SLA ID** ** * * SLA INDEX *$-DISCOUNT (CREDIT) PER * * * -------- ---------------- ------------------------------ * * * * * * * * * % of * * * * * * * * * * * * % of * * * * * * * * * * * * % of * * * * * * * * * * * * * * * * * * * * * % of * * * * * * * * * * * * % of * * * * * * * * * * * * % of * * * * * * * * * * * * % of * * * |
* Remedies will be applied * * * and apply to * * *.
** * * * Service Level
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1.3 * * * SERVICE LEVELS REQUIREMENTS
1. STI will not be responsible for failures to meet the Service Level Requirement for any * * *. * * *
2. * * * * * *
TABLE 3: * * * SERVICE LEVELS
SLA ID* SERVICE LEVEL CATEGORY SERVICE LEVEL ------- ---------------------- ------------- * * * * * * * * * * * * * * * * * * * * * * * * * * * |
* IC = * * * Service Level
STI and Cingular will meet no less than once every 3 to 6 months to review and modify the * * *, SLA and remedies where appropriate.
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2.0 * * * SERVICE LEVELS AND REMEDIES
2.1 * * * AVAILABILITY
SYSTEM AVAILABILITY:
The * * * is available * * * excluding * * *.
* * * SERVICE LEVELS:
* * *
SERVICE LEVEL MEASUREMENT PROCESS:
* * *
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(SYNCHRONOSS TECHNOLOGIES INC. LOGO) TABLE 4: * * * GUIDELINES |
Platform * * * Criteria -------- -------------- * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * |
*** ELIGIBLE FOR REMEDIES:
* * *
* * *
TABLE 5: * * * SERVICE LEVELS AND REMEDIES
Service Level - * * * %-Discount (Credit) off * * * Fee* --------------------- ---------------------------------- * * * * * * % DISCOUNT * * * * * * % DISCOUNT * * * * * * % DISCOUNT * * * * * * % DISCOUNT |
* Discounts will be applied * * *
* SLA's and remedies do not apply when STI, * * *.
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(SYNCHRONOSS TECHNOLOGIES INC. LOGO) TABLE 6: * * * CALCULATION |
* * * * * * ----- ----- * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * |
TABLE 7: * * * SERVICE LEVELS AND REMEDIES
SERVICE LEVEL - * * * REMEDY --------------------- ------ * * * * * * * * * * * * |
* Credits accrued by STI as a result of * * * outages can be applied to remedies/penalties incurred by STI.
* * *
2.2 Description for * * *
* * *
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3.0 ASSUMPTIONS
3.1 METHODS AND PROCEDURES (M&P)
* * *
3.2 SECURITY
* * *
3.3 REMEDIES
* * *
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