Master Services Agreement

MASTER SERVICE AGREEMENT

This Service Agreement ("Agreement") is entered into this twenty first day of

August, 1998 by and between , a Delaware corporation ("AWS") and , a Delaware corporation ("III")

for III to provide to AWS customers various wireless information services as part of "AWS Wireless Data Content Services".

The parties agree as follows:

1. DEFINITIONS

1.1 "Information Providers" are those entities that have the legal right to sell data.

1.2 "Brand" is the use of a company name, logo or other identifying mark in the marketing of a service or product.

1.3 "Content" means the data employed by III, under its agreements with Information Providers, to produce the Service Selections provided hereunder.

1.4 "Branded Content" means the data provided to III under branding agreements entered into between AWS and the Information Providers. Branded Content Information Providers are identified in Exhibit A by Service Selection.

1.5 "Service" means the parsing of Content and Branded Content in accordance with Appendix A, and the delivery of the resultant information message with advertisements and transaction opportunities to the End User.

1.6 "End User" means the AWS customer using the Service.

1.7 "Advertising" shall mean the impressions provide via message tags or web site banners to the End User via the Service.

1.8 "E-commerce" shall mean any financial transaction made between an End User and the III as a result of End User's viewing an Advertisement which results in the End User paying money for a service or product in accordance with an arrangement between III and a vendor of goods or services.

1.9 "Short Message Service" or "SMS" refers to the limited size text message platform or system utilized by AWS to deliver the Service to an End User's wireless telephone.

1.10 All other initially capitalized terms shall have the meanings assigned to them in this Agreement.

2. SERVICE

2.1 III will provide the Service identified in Exhibit A to this Agreement. III shall meet the specifications and support requirements for the Service set forth in Exhibit B.

2.2 AWS shall evaluate the Service made available pursuant to Exhibit A prior to it being made available to End Users to determine whether it conforms to the requirements set forth in Exhibits A and B, and shall notify III promptly in the event AWS discovers any deviations from such requirements. In the event of any nonconformity, III shall remedy such non-conformity as soon as possible, and in no event more than twenty (20) days after AWS' notice of nonconformity.

2.3 At such time as AWS determines that the Service conforms to the requirements, AWS shall make the Service available to End Users. Upon acceptance of the Service and for the term of this Agreement, III will be responsible for the reliability and maintenance of the Service. Throughout the term of this Agreement, III will use its best efforts to promptly correct any deviations from the Service and the requirements that AWS may identify and notify it of from time to time.

2.4 III and AWS shall cooperate to implement modifications or enhancements to the Service based on recommendations from either party. III shall make commercially reasonable efforts to upgrade the Service to ensure that it remains industry competitive.

2.5 To the extent commercially reasonable, enhancements or modifications that negatively affect the Service's performance or availability shall be implemented during AWS' regularly scheduled maintenance hours. III will provide AWS seven (7) days notice of any planned outages or regularly scheduled maintenance that will negatively affect the Service's performance or availability.

2.6 AWS reserves the right to suspend access to the Service by its End Users where, in AWS' reasonable opinion, continued access to the Service is likely to cause personal, monetary, or property damage to any individual or entity. In AWS' sole discretion, AWS may re-establish access to the Service upon the termination of the event or modification by III to the extent that the risk has been rendered insignificant.

2.7 III will provide the Service to End Users who have executed a Subscriber Agreement, an example is attached hereto as Appendix G. The method of execution of a Subscriber Agreement shall be at III's discretion and shall include but not be limited to electronic indication of acceptance and distribution by AWS in connection with marketing and End User materials. AWS agrees not to activate or support two or more wireless devices with the same identification number so as to allow a single registration on the III server for more than one wireless device. For each wireless device receiving the Service (including wireless devices used by AWS), there is to be an exclusively associated Subscriber registration on the III server and an exclusively associated Subscriber Agreement executed by the user of the wireless device.

3. AWS RESPONSIBILITIES

3.1 AWS will provide development guidelines to III for designing the Service's user interface. However, such guidelines shall be consistent with the functionality of NetCare!, III's systems for End User profile control.

3.2 AWS, upon acceptance of the Service, will make the Service available to End Users.

3.3 AWS shall develop marketing materials for the Service and shall use its best efforts to market and sell the Service to potential End Users.

4. LICENSES

4.1 III shall obtain all necessary licenses for the Content.

4.2 III grants to AWS during the term of this Agreement a non-exclusive worldwide royalty-free right and license in accordance with this Agreement to distribute, display, transmit, advertise and publicly perform the Service, in fulfillment of its sales support and marketing responsibilities, and to permit End Users to access the Service.

4.3 AWS' license rights granted under this Section 4 shall extend to any new versions, editions, enhancements, changes, updates, amendments, or other modifications to the Service during the term of this Agreement.

5. TRADE NAME, TRADEMARKS, LOGOS AND COPYRIGHTS

5.1 III hereby grants AWS the right to use and publish in connection with the Service, and promotional materials describing the Service, the trademarks, trade names and logos now or hereafter owned or used by III which are associated with III or the Service ("III's Trademarks") for purposes of advertising and marketing of the Service, provided such use and publication complies any guidelines provided to AWS by III as listed in Exhibit E. By use of III's Trademarks AWS may participate in III's Coop Program as defined, and updated at III's sole discretion, in Exhibit F

5.2 AWS will reasonably use III's Trademarks as listed in Exhibit D (the "Trademarks") in connection with the marketing and providing of Service to End Users:

a. In the event AWS uses the Trademarks, AWS shall comply with III's guidelines for using the Trademarks. Depending on the trademarks used, the current legend or notice requirements are:

i. A TM should appear adjacent to the Trademarks.

ii. A legend should appear indicating that the Trademark is a trademark of Intelligent Information Incorporated. For example, "Powered by iii is a trademark of Intelligent Information Incorporated".

b. AWS agrees to submit to III a sample of the proposed use of the Trademarks on or with the Service, boxes, containers and/or packaging, and III shall have approved such proposed use in writing prior to any sale of the Service using such Trademarks in the proposed manner or any other public use of the Trademarks in the proposed manner by AWS. Approval will not be unreasonably withheld, and if III does not provide a written response within ten days of the receipt of such a request, approval shall be considered granted.

c. AWS will not harm, misuse or bring into disrepute the Trademarks.

d. AWS acknowledges the ownership of III's Trademarks by III, and agrees that it will do nothing inconsistent with such ownership, and that all use of III's Trademarks by AWS shall inure to the benefit of and on behalf of III.

e. AWS agrees that nothing in the Agreement shall give AWS any right, title or interest in the Trademarks, other than the right to use III's Trademarks in accordance with this Agreement, and Reseller agrees that it will not claim title to III's Trademarks or attack the title of III in III's Trademarks.

5.3 III acknowledges that all service marks, trademarks, brands, logos and trade names used by AWS (collectively the "AWS Marks") are the exclusive property of AWS. III shall not use any of the AWS Marks for any purpose or in any medium without the express prior written consent of AWS. III acknowledges that this Agreement does not transfer any rights to use any AWS Marks and that this Agreement does not and will not confer any goodwill or other interest in any AWS Marks upon III, all rights to which shall remain with AWS. Any unauthorized use of the AWS Marks by III shall constitute infringement of AWS' rights and a material breach of this Agreement.

5.4 AWS shall take appropriate measures to insure that proper copyright notice is made known to all End Users, including displaying the copyright notice with in all instructions for use of the Service. Requirements for copyright notice are set forth in Exhibit H.

6. END USER SUPPORT

6.1 The parties' obligations with respect to End User support for the Service are described in Exhibit C, attached hereto and made a part hereof. In the event AWS and III amend Exhibit A to include other Services, the parties may agree to amend Exhibit C with respect to the End User support obligations for such other Services.

6.2 III will develop and maintain current support documentation that instructs the End User on navigation and use of the Service.

6.3 III will make available to AWS an e-mail address where End Users may forward questions and comments about the Service. III will provide such e-mail address on the support documentation and AWS will make it available to the End User upon request. III will respond to End User questions in a manner consistent with its policies and procedures for responding to questions and comments posted in relation to its online Internet services.

6.4 III will provide all End User customer support with regard to any E-commerce conducted through the Offering.

7. CONNECTIVITY

7.1 AWS will maintain at its own expense a frame relay line or like communications service to connect AWS' and III's respective networks in primary and backup configurations. AWS will be responsible for the management and support of the hardware and network facilities maintaining the connection. AWS shall provide and maintain at its cost, mutually agreeable communication protocol(s) for the purposes of providing the Service to End Users. AWS agrees to maintain these communications facilities in a manner capable of providing quality service to the End User, based on the then effective volume of messages being processed.

7.2 III is responsible for maintaining the connection between III's server(s) supporting the Service and the frame relay access device provided by AWS.

8. MARKETING

8.1 AWS will, from time to time, actively promote and market the commercial availability of the Service. Marketing initiatives may include direct response programs, print advertising, seminars, newsletters, brochures, public relations, retail merchandising and other marketing mediums.

8.2 AWS and III will display the other's name or logo on its Internet web site with the intent of creating a hypertext link to each site. AWS will allocate a section of its web site to market and sell the Service.

8.3 AWS is solely responsible for establishing all terms and conditions of use and advertising of the Service. AWS may provide written consent and required guidelines for III to market the Service, and III agrees to comply with any terms and conditions of such consent or guidelines.

9. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF III

III hereby represents, warrants, and covenants to AWS that:

9.1 III has the full right and power to enter into and perform according to the terms of this Agreement, and that it has the right to grant to AWS each of the rights herein granted. Without limiting the foregoing, III covenants that (i) use, editing and publication of the Service by AWS as provided under this Agreement will not violate any patent, trade secret, copyright, trademark, intellectual property, or other right of any third party, including without limitation independent contractors hired by III to contribute to the Service; (ii) the Service will not be pornographic, libelous, and its use by AWS as provided hereunder shall not violate any rights of privacy and/or publicity of any third party; and (iii) no instruction, advice, or information contained in the Service will be injurious to the End User.

9.2 III is not aware of any claim by any third parties adverse to III's or Service's patent, trade secret, copyright, trademarks or intellectual property rights.

9.3 III warrants that the information contained in the Service is accurate, comprehensive and will be updated as set forth in Exhibit B. III also warrants that information contained in descriptions of its services or business are accurate and truthful and comply with all applicable laws.

10. RATES AND PAYMENT

10.1 III and AWS will together establish the monthly rate charged by III to End Users for the Service. III will sell Advertising and E-commerce contracts based on the Service and End User opportunities as defined by III and approved by AWS.

10.2 III will pay AWS . III will pay AWS .

10.3 III will provide to AWS by the fifteenth (15th) day of each month a written report indicating for the previous calendar month: (i) the total number of End Users subscribing to the Service; (ii) the monthly rate for which they are subscribing; (iii) the total number of messages sent to such End Users, and (iv) the total dollars collected for Services, Advertising and E-commerce. III will, with its written report, submit payment to AWS of all amounts due pursuant to Paragraph 10.2 above.

11. EXCLUSIVITY

During the term of this Agreement and for one year thereafter, III will not (a) provide the Service, i.e., all the Selections taken as a whole offering, to any other wireless telecommunications provider or, (b) provide Branded Content Service Selections to any other telecommunications provider. However, III may provide individual Service Selections or other groupings of Service Selections to others.

12. TERM; TERMINATION

12.1 The term of this Agreement is one (1) year beginning on the . This entire Agreement shall automatically renew itself annually for additional one (1) year terms unless either party sends notice of termination to the other party sixty (60) days before the anniversary of the effective date of this Agreement, by certified mail or confirmed receipt delivery service.

12.2 Either party may terminate this Agreement immediately in the event the other party fails to cure any material breach of this Agreement within thirty (30) days written notice thereof.

12.3 AWS may terminate this Agreement immediately in the event III fails to comply with the specifications and support requirements set forth in Exhibit B, and such failure continues for a period of five (5) days after AWS's written notice thereof.

13. MISCELLANEOUS

13.1 Any information disclosed by either party in connection with the relationship described in this Agreement will be treated as the Disclosing Party's Confidential Information in accordance with the Nondisclosure terms in the Preferred Content License Agreement between the parties, dated May 1, 1997. The parties will mutually agree upon the content and timing of joint press releases. Notwithstanding the foregoing, AWS may disclose this Agreement and any of its terms to any affiliate of AWS in which AWS owns at least a 15% beneficial interest.

13.2 This Agreement will not create an exclusive relationship or any partnership, joint venture or agency relationship between AWS and III, except as provided for herein.

13.3 III will indemnify, defend and hold harmless AWS, and its officers, employees, representatives and agents, against any claim, suit, action, or other proceeding which is based on or arises from: (i) a claim that the use of the Service in accordance with this Agreement infringes any third-party intellectual property right, or any right of personality or publicity, is libelous or defamatory, or otherwise results in injury or damage to any third party; (ii) any misrepresentation or breach of representation or warranty of III contained herein; (iii) any breach of any covenant or agreement to be performed by III hereunder; or (iv) any willful misconduct or negligence by III. III will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by AWS in connection with or arising from any such claim, suit, action or proceeding attributable to any such claim.

13.4 EXCEPT AS PROVIDED IN 13.3 ABOVE, NEITHER PARTY WILL BE LIABLE TO THE OTHER (OR THE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS OR CUSTOMERS OF EITHER OF THEM OR ANY THIRD PARTY) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF SUCH PARTY'S FAILURE TO PERFORM UNDER THIS AGREEMENT.

13.5 EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

13.6 The parties shall comply with all applicable federal, state and local laws, orders and regulations in performing the terms and conditions of this Agreement.

13.7 This Agreement (i) will be governed by the internal laws of the state of Washington, without reference to its choice of law rules, (ii) will constitute, along with the parties' Nondisclosure Agreement, the parties' entire agreement with respect to the subject matter hereof, and (iii) may be amended only by a writing signed by both AWS and III.

13.8 All notices and requests in connection with this Agreement shall be deemed given as of the day they are (i) hand delivered, (ii) deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested; or (iii) sent by overnight courier, charges prepaid, and addressed as noted under the signature line below or to such other address as the party to receive the notice so designates by written notice to the other.

13.9 Neither Party may assign this Agreement, or any portion thereof, to any third party, except a subsidiary or parent company or an affiliated company in which the Assigning Party has a controlling interest, unless the other non assigning Party expressly consents to such assignment in writing. Any attempted assignment without such consent shall give the non offending Party the right to terminate this Agreement effective upon written notice.

13.10 The Service shall not be used by AWS for any other purpose other than the specified use of the distribution of the Service through wireless devices. In the event that AWS becomes aware that any third party is improperly using the Service, including, without limitation, providing or about to provide the Service or Content to an unauthorized party, AWS shall immediately notify III of the facts of which it is aware in connection with such actual or potential unauthorized use and shall provide III with any documents in its possession with respect to the same. The parties shall cooperate to the fullest extent possible to take all actions necessary to eliminate such unauthorized use as expeditiously as possible.

13.11 This Agreement, and the Nondisclosure Agreement referenced in Paragraph 13.1, constitute the entire agreement, and supersede any previous agreement, between the parties with respect to the subject matter hereof. This Agreement shall not be modified except by written agreement dated subsequent hereto signed on behalf of III and AWS by their duly authorized representatives. Neither this Agreement nor any written or oral statements related hereto constitute an offer, and this Agreement shall not be legally binding until executed by both parties hereto.

The parties have executed this Agreement on the date first written above.