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ASP Solution Master Services Agreement

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Exhibit 10.10


MASTER SERVICES AGREEMENT NO. SG021306


BETWEEN


SYNCHRONOSS TECHNOLOGIES, INC.


AND


CINGULAR WIRELESS LLC


FOR


SERVICES


1


PROPRIETARY 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.


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....................................................... 4
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................................................. 6
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 Most Favored Customer............................................ 11
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..................................................... 13
3.28 Survival of Obligations.......................................... 14


i


PROPRIETARY 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.


Services


CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.


Agreement Number SG021306


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


ii


PROPRIETARY 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.


CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.


Agreement Number SG021306


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 5565 Glenridge Connector, Atlanta, Georgia 30342, 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.


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.


3


PROPRIETARY 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.


CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.


Agreement Number SG021306


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. An equitable adjustment shall be made if such change substantially affects the time of performance or the cost of the Work to be performed under this Agreement. Such cost adjustment shall be made on the basis of the actual cost of the Work, unless otherwise agreed in writing. 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.


3.3 ASSIGNMENT


Neither Party may assign, delegate, subcontract or otherwise transfer its rights or obligations under this Agreement, except with the prior written consent of the other Party, which consent will not be unreasonably withheld; provided, however, that CINGULAR will have the right to assign this Agreement to any Affiliate without securing the consent of Supplier, and both Parties may assign their respective right to receive money due hereunder. 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


4


PROPRIETARY 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.


CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.


Agreement Number SG021306


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.
Notwithstanding the foregoing, if the material default is a breach of
the Compliance with Laws Section of this Agreement, the Party not in
default may, upon providing written notice, cancel the Agreement ***.
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 without any financial
obligation or Liability on the part of CINGULAR whatsoever, except to
pay for the value of any Material and/or Services retained by
CINGULAR.


b. Termination:


CINGULAR may Terminate this Agreement or any Order, in whole or in part, at
any time, upon written notice to Supplier. 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. The foregoing statement of CINGULAR's Liability states the entire
Liability of CINGULAR and Supplier's sole remedy for CINGULAR's Termination
for convenience, or Supplier's Cancellation for material default.


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 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.


5


PROPRIETARY 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.


CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.


Agreement Number SG021306


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 performed to CINGULAR's satisfaction. 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, at no charge to CINGULAR, take prompt action to correct such unsatisfactory Services. If such unsatisfactory Services have not been corrected within a reasonable time (not to exceed *** from date of notification), CINGULAR may, in addition to all other rights and remedies provided by law or this Agreement, Cancel this Agreement and/or any affected Order.


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


6


PROPRIETARY 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.


CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.


Agreement Number SG021306


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, and deduct from any commitment
under such Order(s), the quantity of the Material and Services obtained
elsewhere or for which commitments have been made 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 Georgia, 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 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. IT IS THE INTENT OF THE PARTIES THAT THIS INDEMNITY APPLY REGARDLESS OF
WHETHER OR NOT SUCH LIABILITY WAS CAUSED IN PART BY CINGULAR'S OWN
NEGLIGENCE OR THAT OF THE OTHER PARTIES INDEMNIFIED UNDER THIS SECTION,
EXCLUDING ONLY ANY LIABILITY ARISING FROM THE SOLE NEGLIGENCE OF CINGULAR.
THIS INDEMNITY SHALL SURVIVE THE DELIVERY, INSPECTION AND ACCEPTANCE OF THE
MATERIAL OR SERVICES AND THE CANCELLATION, TERMINATION OR EXPIRATION OF
THIS AGREEMENT.


7


PROPRIETARY 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.


CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.


Agreement Number SG021306


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
reason
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