EXHIBIT 10.2
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[*** Confidential Treatment Requested. Confidential portions of this agreement
have been redacted and have been separately filed with the Commission]
MASTER PRODUCT LICENSE AND SERVICES AGREEMENT
BETWEEN
SMARTSERV ONLINE, INC.
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC. TO BE KNOWN IN THE FUTURE AS
CITIGROUP CAPITAL MARKETS INC.
This Master Product License and Services Agreement ("MPLSA"), dated and
effective as of November 1, 2001 (the "Effective Date"), together with any
schedules, exhibits and statements of work attached hereto, all of which are
incorporated herein by this reference (collectively, the "Agreement"), are
between SmartServ Online, Inc. ("SMARTSERV"), a Delaware corporation with a
place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc. to be known in the future as Citigroup Capital Markets Inc.
(of which Citigroup Inc. is the parent company), with offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("CUSTOMER").
RECITALS.
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SmartServ is a web and wireless applications provider of technologies and
services that enable wireless data communications and transactions; and
Customer is interested in obtaining licenses for Products and using the Services
of SmartServ in order to offer its Authorized Users the ability to access
certain data and/or execute certain transactions by using wireless devices; and
SmartServ is willing to license those Products and offer the Services requested
by Customer, as more specifically described herein.
In consideration of the mutual promises, conditions and covenants set forth
herein, and in return for good and valuable consideration, the receipt and
sufficiency of which are hereby specifically acknowledged, SmartServ and
Customer hereby agree as follows:
1. DEFINITIONS.
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"AFFILIATED ENTITY OF CUSTOMER" means any company that controls, is controlled
by, or is under common control with ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. or Citigroup Inc.
or either of their successor entities.
"AFFILIATED ENTITY OF SMARTSERV" means any company that controls, is controlled
by or in under common control with SmartServ Online, Inc.
"AUTHORIZED USERS," means Customer's registered users who are authorized to use
the Products as specified in the applicable Product Schedule.
"CUSTOMER" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., its employees, and Affiliated
Entities.
"CUSTOMER CONTENT" means the materials, data and/or information provided by
Customer for use with the Products, including but not limited to, Customer
research reports.
"DOCUMENTATION" means the user, technical and system administrator manuals and
documentation, if any, that SmartServ generally makes available to its customers
for use with the Products identified in the applicable Product Schedule.
"OTHER CONTENT" means the content other than SmartServ Content or Customer
Content, provided pursuant to this MPLSA and/or any applicable Schedule
including, without limitation, any news stories, stock quotes or other
information provided by a third party.
"PRODUCTS" means: (a) the products identified in the applicable Product
Schedule; (b) the Documentation, if any; and (c) any enhancements to the
Products identified in the applicable Product Schedule.
"SCHEDULE" means Product Schedule, Hosting Schedule, Services Schedule, or other
Schedule executed by the Parties in connection with the provision of Services or
Products hereunder.
"SERVICES" means all of the services described in the applicable Services
Schedule.
"SMARTSERV CONTENT" includes any images, photographs, animations, video, audio,
music, text and "applets" incorporated into the Products and/or Services, other
than that which SmartServ agrees is developed for Customer.
2. ORDERING PRODUCTS AND SERVICES.
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2.1 PRODUCTS. Each Product shall be ordered pursuant to an applicable
product schedule (each a "Product Schedule A-" and its successors).
2.2 PROFESSIONAL SERVICES. Any custom development, implementation,
integration, consulting or other professional services to be provided by
SmartServ shall be provided to Customer only in accordance with the terms
set forth in the applicable professional services schedule (each a
"Professional Services Schedule B-" and its successors).
2.3 CUSTOMER SUPPORT SERVICES. Any Customer support to be provided by
SmartServ shall be provided to Customer only in accordance with the terms
set forth in the applicable support schedule (each a "Support Schedule C-"
and its successors).
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2.4 HOSTING SERVICES. Any hosting services to be provided by SmartServ
shall be provided to Customer only in accordance with the terms set forth
in the applicable hosting schedule (each a "Hosting Schedule D-"and its
successors).
2.5 TRAINING. Any training to be provided by SmartServ shall be provided to
Customer only in accordance with the terms set forth in the applicable
training schedule ("Product Schedule A-" and its successors).
2.6 SCHEDULES. Each Schedule shall refer specifically to this MPLSA and the
MPLSA number set forth above, and shall be accepted by the parties only
when signed by an authorized representative of both parties. In the event
of any conflict between the terms and conditions of the MPLSA and the those
of a Schedule, the terms and conditions of the applicable Schedule shall
prevail to the extent such terms are inconsistent with or supplement the
MPLSA.
3. TERM.
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3.1 TERM OF AGREEMENT. This MPLSA shall commence on the Effective Date and
shall remain in effect for three (3) years thereafter unless terminated
earlier in accordance with the terms of this MPLSA.
3.2 TERM OF SCHEDULES. The term of each Schedule shall be as specified
therein; provided, however, that in no event shall the term of any Schedule
extend beyond the term of this MPLSA. Each Schedule may have a different
specified duration and may be terminated only in accordance with its
respective terms or the terms of this MPLSA.
4. LICENSE.
4.1 LICENSE GRANT. Subject to the terms of this MPLSA and the applicable
Product Schedule, SmartServ grants Customer a nonexclusive,
nontransferable, limited-term license to use the Products for access and
use solely by Customer and its Authorized Users in accordance with the
terms of the applicable Product Schedule. The term of the license granted
under this Section shall be coterminous with the term of the applicable
Product Schedule, unless the Parties specifically agree otherwise in the
applicable Product Schedule.
4.2 RESTRICTIONS. Except as otherwise specifically permitted in the
applicable Product Schedule, Customer and/or its Authorized Users shall
not: (a) sell, lease or sublicense any Product, or any part thereof; (b)
modify, alter, translate, create derivative works from, reverse engineer,
disassemble or decompile any Product in any way for any reason; or (c) copy
or reproduce all or any part of the Product. Customer and/or its Authorized
Users shall not, under any circumstances whatsoever: (d) engage in any
fraudulent, illegal, unauthorized or improper use of the Product; (e)
introduce into or transmit through the Product, any virus, worm, back door,
timer, clock or counter; (f) remove, obscure or alter any copyright notice,
trademarks or other proprietary notices affixed to or contained within the
Product; or (g) engage in or allow any action that is inconsistent with the
terms and conditions of the Agreement.
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5. OBLIGATION TO PAY FEES; PAYMENT TERMS.
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Customer shall pay to SmartServ the undisputed fees and charges set forth in the
applicable Schedule within thirty (30) calendar days following Customer's
receipt of SmartServ's invoice, unless alternate payment terms are otherwise
specified in the applicable Schedule. Customer shall be responsible for all
applicable federal, state and local taxes, tariffs and duties, imposed in
connection with Customer's payment obligations under the Agreement, or shall
provide SmartServ a certificate of exemption from such taxes. Upon thirty (30)
days written notice from SmartServ to Customer of Customer's failure to pay any
charges or fees incurred, SmartServ shall have the right to suspend the Product
license(s), the Services and/or Customer's rights under this MPLSA and any
applicable Schedules until full payment is made to SmartServ.
6. AUDIT RIGHTS.
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During the term of the Agreement and for a period of ten (10) days following
termination for any reason of the Agreement, SmartServ shall have the right,
upon reasonable prior written notice to Customer and during Customer's normal
working hours, to audit Customer's use of the Product and/or Services to verify
Customer's compliance with the MPLSA and any applicable Schedule. Customer shall
cooperate fully with such audit and shall not interfere with, nor delay
SmartServ's execution of such audit. In the event the audit shows any use by
Customer in excess of the number of Authorized Users of the Product and/or
Services as set forth in the applicable Schedule, Customer must pay the fees and
charges due in accordance with the findings of such audit. During the term of
the Agreement and for a period of ten (10) days following termination for any
reason of the Agreement, Customer shall have the right, upon reasonable prior
written notice to SmartServ and during SmartServ's normal working hours, to
audit and verify SmartServ's compliance with the MPLSA and any applicable
Schedule.
7. LIMITED WARRANTIES; EXCLUSIVE REMEDIES; DISCLAIMERS.
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7.1 CUSTOMER WARRANTIES. Customer represents and warrants to SmartServ
that:
7.1.1 Customer has the authority, rights and ability necessary for it
to enter into the Agreement and perform its obligations under the
Agreement without restrictions or prohibitions, including, but not
limited to, Customer's prior contractual obligations;
7.1.2 Customer and/or its Authorized Users will use the SmartServ
Products and Services only in accordance with the terms of the
Agreement;
7.1.3 Customer has the right to provide the Customer Content to
SmartServ and to Customer's Authorized Users for use in accordance
with the terms of the Agreement;
7.1.4 Customer Content does not misappropriate or infringe upon the
intellectual property rights of any third party; and
7.1.5 Customer and its Authorized Users shall comply with all
applicable country, federal, state and local laws, all applicable
rules and regulations of any governmental or judicial authority, and
all applicable exchange rules and contract terms.
7.2 SMARTSERV WARRANTIES. SmartServ represents and warrants that:
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7.2.1 SmartServ has all rights necessary to provide any and all
Products, Documentation, SmartServ Content and Other Content,
specifications and other materials to Customer and to perform the
Services as specified in the Agreement and warrants that such
Products, Documentation, specifications and Services are free of all
liens, claims, encumbrances and other restrictions;
7.2.2 the Products, Documentation, specifications and Services
furnished by SmartServ and Customer's use of the same hereunder do not
violate or infringe the rights of any third party or the laws or
regulations of any governmental or judicial authority;
7.2.3 Customer's use of the Products, Documentation, specifications
and Services hereunder shall not be adversely affected, interrupted or
disturbed by SmartServ or any entity asserting a claim under or
through SmartServ, in any way not provided for or contemplated by the
Agreement;
7.2.4 the Documentation and other materials provided by SmartServ
hereunder shall accurately describe the Product(s) provided to
Customer hereunder.
7.2.5 After Customer has notified SmartServ of its acceptance of any
Product(s) pursuant to the acceptance criteria, if any, in the
specifications, Documentation or the statement of work, and the
applicable Services and/or Product Schedule, SmartServ shall correct
and repair any malfunction, defect or nonconformity which prevents the
Product(s) from performing in accordance with the provisions of the
applicable specifications or statement of work, at no additional
charge, in accordance with the maintenance and cure provisions set
forth in this MPLSA and/or any applicable Schedule;
7.2.6 SmartServ will perform the Services required under the Agreement
in a high-quality, professional and workmanlike manner by qualified
and skilled personnel. In performing Services at Customer's locations,
SmartServ personnel will use best efforts to minimize any disruption
to Customer's normal business operations;
7.2.7 SmartServ has the authority, rights and ability necessary for it
to enter into the Agreement and perform its obligations under the
Agreement without restrictions or prohibitions, including, but not
limited to, SmartServ's prior contractual obligations;
7.2.8 SmartServ has the right to provide the SmartServ Content or
Other Content, as applicable, to Customer;
7.2.9 SmartServ Content does not misappropriate or infringe upon the
intellectual property rights of any third party. In addition, to the
best of SmartServ's knowledge the Other Content does not
misappropriate or infringe upon the intellectual property rights of
any third party;
7.2.10 SmartServ shall accurately transmit and represent all Customer
Content, SmartServ Content, and/or Other Content, as applicable, and
shall not alter any Customer Content in any manner not specified by
Customer;
7.2.11 the Products do not contain a "time bomb", disabler, lockup
program or device;
7.2.12 SmartServ shall not distribute, sell or lease the Customer
Content, or any part thereof, in any manner except as otherwise
specifically permitted by Customer in an applicable Schedule. Neither
shall SmartServ modify, alter, translate, create derivative works
from, reverse engineer, disassemble or decompile any Customer Content
in any way for any reason, except as otherwise specifically permitted
by Customer in an applicable Schedule;
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7.2.13 SmartServ shall not engage in any fraudulent, illegal,
unauthorized or improper use of the Customer Content;
7.2.14 SmartServ shall not remove, obscure or alter any copyright
notice, trademarks or other proprietary notices affixed to or
contained within the Customer Content;
7.2.15 the Product(s) do not contain any virus and/or other harmful
elements designed to disrupt the orderly operation of, or impair the
integrity of data files resident on, any data processing system used
for the operation of the Products or rendering of Services by
SmartServ;
7.2.16 the Product(s) will properly and accurately record, store,
process, print, manage and present all calendar dates and data
involving or based on calendar dates including leap year recognition
without error;
7.2.17 new versions and/or enhancements to any Product provided to
Customer hereunder shall not degrade, impair or otherwise adversely
affect the performance or operation of such Product provided
hereunder; and
7.2.18 SmartServ shall comply with all applicable country, federal,
state and local laws, all applicable rules and regulations of any
governmental or judicial authority and all applicable exchange rules,
regulations and contract terms.
7.3 DISCLAIMER. THE WARRANTIES SET FORTH ABOVE OR IN ANY APPLICABLE
SCHEDULE ARE THE PARTIES' ONLY WARRANTIES. THE PARTIES MAKE NO OTHER
WARRANTIES EXPRESS OR IMPLIED AND SMARTSERV SPECIFICALLY DISCLAIMS ANY
IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR
PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. THESE LIMITED
WARRANTIES GIVE CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER ALSO MAY HAVE
OTHER RIGHTS, WHICH VARY BY JURISDICTION. NO ORAL OR WRITTEN INFORMATION OR
ADVICE GIVEN BY SMARTSERV, ITS AGENTS OR REPRESENTATIVES SHALL CREATE A
WARRANTY OR INCREASE THE SCOPE OF THE ABOVE LIMITED WARRANTIES. SMARTSERV
SHALL HAVE NO LIABILITY FOR ANY DECISIONS OR TRANSACTIONS (INCLUDING,
WITHOUT LIMITATION, ANY INVESTMENT DECISIONS PERTAINING TO STOCK
TRANSACTIONS) MADE BY CUSTOMER AND/OR ITS AUTHORIZED USERS IN USING THE
PRODUCTS, SERVICES, AND/OR CUSTOMER CONTENT. THIS DISCLAIMER IS NOT
INTENDED TO DIMINISH SMARTSERV'S OBLIGATION TO PROVIDE ACCURATE INFORMATION
PURSUANT TO SECTION 7.2.10 ABOVE. THIS SECTION 7.3 SHALL SURVIVE
TERMINATION OF THE AGREEMENT.
7.4 RELIANCE ON THIRD PARTY PROVIDERS AND LICENSORS. CUSTOMER ACKNOWLEDGES
AND AGREES THAT USE OF THE PRODUCTS, SERVICES AND/OR SMARTSERV CONTENT OR
OTHER CONTENT MAY BE DEPENDENT UPON THIRD PARTY PROVIDERS AND LICENSORS,
INCLUDING, BUT NOT LIMITED TO, TELECOMMUNICATIONS CARRIERS, INTERNET
SERVICE PROVIDERS AND LICENSORS OF INFORMATION FEEDS. SMARTSERV SHALL NOT
BE RESPONSIBLE OR LIABLE FOR ANY INTERRUPTION IN THE USE OF THE PRODUCTS
AND/OR SERVICES, DELAYS OR ERRORS, CAUSED BY ANY TRANSMISSION OR DELIVERY
OF THE PRODUCTS, THE CUSTOMER CONTENT, THE SMARTSERV CONTENT OR
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ANY OTHER CONTENT OR INFORMATION, CAUSED BY ANY THIRD PARTIES. THIS SECTION
7.4 SHALL SURVIVE TERMINATION OF THE AGREEMENT. SMARTSERV WILL REASONABLY
COOPERATE WITH SUCH THIRD PARTIES IN RESOLVING ANY INTERRUPTION IN
CUSTOMER'S USE OF THE PRODUCTS AND/OR SERVICES.
8. LIMITATION OF LIABILITY.
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8.1 LIMITATION UPON TYPES OF RECOVERABLE DAMAGES. IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR FOR SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE AGREEMENT OR THE SUBJECT MATTER HEREOF, REGARDLESS OF
THE FORM OF ACTION, WHETHER OR NOT SUCH PARTY HAS BEEN INFORMED OF, OR
OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES.
8.2 CAP ON DAMAGES. THE PARTIES' LIABILITY TO EACH OTHER FOR DIRECT
DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE TOTAL
AGGREGATE DOLLAR AMOUNT PAID OR THERETOFORE REQUIRED TO HAVE BEEN PAID BY
CUSTOMER PURSUANT TO THE AGREEMENT, SUBJECT TO SECTION 8.3 BELOW.
8.3 EXCLUSIONS. NO LIMITATION ON EITHER PARTY'S LIABILITY SHALL APPLY TO
(a) DAMAGES RESULTING FROM THE GROSS NEGLIGENCE, BAD FAITH OR WILLFUL
MISCONDUCT OF SUCH PARTY OR INTENTIONAL BREACH OF THE AGREEMENT; (b)
DAMAGES ARISING IN RESPECT OF CLAIMS UNDER SECTION 13 "CONFIDENTIALITY" OR
SECTION 14 "INFRINGEMENT" OF THIS MPLSA; OR (c) CLAIMS FOR PERSONAL INJURY
OR PROPERTY DAMAGE CAUSED BY THE NEGLIGENCE OF EITHER PARTY, ITS EMPLOYEES,
AGENTS OR SUBCONTRACTORS.
8.4 SURVIVAL. THIS SECTION 8 SHALL SURVIVE TERMINATION OF THE AGREEMENT.
9. INTENTIONALLY LEFT BLANK.
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10. SOURCE CODE ESCROW. If requested in writing by Customer, SmartServ shall
execute and deliver to Customer an escrow agreement to be attached hereto as a
Schedule, on terms and with an escrow agent acceptable to Customer with respect
to the delivery of the source code version of the Product and all of its related
programming, systems and data base Documentation as regularly updated by
SmartServ.
11. TERMINATION.
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11.1 TERMINATION FOR CAUSE. Each party shall have the right to terminate
this MPLSA and/or any applicable Schedule if the other party breaches any
material term of the Agreement and refuses or fails to cure such breach.
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11.1.1 Notwithstanding the foregoing, SmartServ shall have the right to
terminate this MPLSA and/or any applicable Schedule in the event Customer
fails to pay any amounts due to SmartServ, provided such failure is not
cured within sixty (60) calendar days of Customer's receipt of SmartServ's
invoice.
11.1.2 In the event that any dispute, controversy or claim arises between
the parties related to the payment of amounts due by Customer under the
Agreement ("Dispute"), the parties agree not to initiate any legal action
until the parties have made reasonable efforts to resolve such Dispute.
This provision has no effect on either party's ability to seek injunctive
relief or other equitable relief whenever the facts or circumstances would
permit that party to seek such relief in a court of competent jurisdiction
including, without limitation, in the case of a breach of the license
restrictions or a party's confidentiality obligations under the Agreement.
11.1.3 Either party shall have the right to terminate this MPLSA and/or any
Schedule in the event either party: (a) suspends its business activities;
(b) becomes insolvent, makes an assignment for the benefit of creditors, or
becomes subject to direct control of a trustee, receiver or similar
authority; or (c) becomes subject to any bankruptcy or insolvency
proceeding under federal or state statutes that, if involuntary, has not
been dismissed within thirty (30) calendar days.
11.2 TERMINATION FOR CONVENIENCE. Customer may terminate this MPLSA and/or
any applicable Schedule, without cause, upon no less than ninety (90) days'
prior written notice to SmartServ, unless otherwise specified in an
applicable Schedule.
11.3 CUSTOMER'S OBLIGATIONS UPON TERMINATION. Upon termination of this
MPLSA or any Schedule for any reason: (a) Customer shall: (i) upon
SmartServ's written request, return, purge or destroy all applicable
Products and confidential information as described in Section 13 entitled
"Confidentiality" below and certify to SmartServ in writing that all such
copies have been surrendered or destroyed in accordance with the foregoing
and that Customer has ceased using any such Products or Services, except in
the event that Customer terminates this MPLSA and/or Schedule for any of
the reasons detailed in the source code escrow agreement pursuant to
Section 10 of this MPLSA; (ii) pay SmartServ any undisputed fees due and
owing under this MPLSA and/or any Schedule; and (b) SmartServ shall be
relieved of any and all obligations to provide technical support and other
Services to Customer. Termination of this MPLSA and/or the affected
Schedule shall be in addition to and not in lieu of any other legal or
equitable remedies.
11.4 TERMINATION OF SCHEDULES. Each Schedule shall become binding when duly
executed by both parties and shall continue thereafter unless terminated as
permitted by this MPLSA or the applicable Schedule. Notice of termination
of any Schedule shall not be considered notice of termination of this
MPLSA.
11.5 SURVIVAL. Any provision of the Agreement that by its nature should
survive termination of the Agreement shall so survive.
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12. PROPRIETARY RIGHTS.
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12.1 PROPRIETARY RIGHTS OF CUSTOMER. Customer Content shall remain the sole
and exclusive property of Customer, including, without limitation, all
copyrights, trademarks, patents, trade secrets and any other intellectual
property and proprietary rights therein. Customer Content shall be used
solely by Customer and its Authorized Users as described herein and/or
indicated on the applicable Schedule. Without limiting the foregoing,
Customer hereby grants to SmartServ a non-exclusive, royalty-free license
to distribute Customer Content in connection with the Products as necessary
to furnish the Products and render the Services to Customer under the
Agreement.
12.2 PROPRIETARY RIGHTS OF SMARTSERV. No title or ownership in and to the
Products and Services, or any part thereof, are transferred to Customer
under the Agreement, unless otherwise specified in the applicable Schedule.
SmartServ shall have and/or retain all right, title and ownership in and to
the following: (a) all Products, SmartServ Content, Documentation and
Services; (b) all new releases, new versions, improvements, revisions,
modifications, upgrades, updates, supplements, fixes, new features, new
modules, adaptations, translations, derivative works and other enhancements
relating to the Products and/or SmartServ Content including, without
limitation, all other software and materials developed, conceived,
originated, prepared, generated or furnished by SmartServ under the
Agreement, unless otherwise specified in an applicable Schedule; (c) any
know-how, methodologies and processes related to the Products and Services;
and (d) all copyrights, trademarks, patents, trade secrets and any other
intellectual property and proprietary rights in and to any of the
foregoing, except for any copyrights, trademarks, patents, trade secrets
and other intellectual property or proprietary rights owned by Customer.
Subsections (a) through (d) are collectively referred to as the "SmartServ
Materials". To the extent, if any, that ownership of the SmartServ
Materials does not automatically vest in SmartServ by virtue of the
Agreement or otherwise, Customer hereby transfers and assigns to SmartServ
all right, title and interest, which Customer may have in and to the
SmartServ Materials. SmartServ's third party licensors whose material is
provided to and/or used by Customer under the Agreement shall have and/or
retain all right, title and ownership in their respective material.
Customer shall not remove any proprietary notices from the Products or
Services to the extent that the parties agree in an applicable Product
Schedule that any proprietary notices are to be included on the Products or
Services, and shall include such notices on any authorized copies of the
Products.
13. CONFIDENTIALITY.
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13.1 SmartServ agrees not to disclose the identity of Customer as a
customer of SmartServ, the existence or nature of the relationship
contemplated hereby or the business application for which Customer intends
to use the Product, except as required by SmartServ to comply with law,
regulation or order of governmental authority, without the prior written
consent of Customer, which Customer may withhold in its sole discretion.
13.2 SmartServ agrees to maintain the confidentiality of all information
and materials supplied to SmartServ by Customer or observed by SmartServ,
its employees, agents or subcontractors regarding or in the possession of
Customer or its Affiliated Entities, including, without limitation,
information or materials concerning Customer, its Affiliated Entities, or
their respective present, potential or future clients and customers,
organization, work,
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know-how, finances, strategies, plans, systems, programs and products.
SmartServ agrees not to use any such information or materials except as
contemplated by the Agreement for the purposes of the Agreement and not to
take any other action inconsistent with the confidential nature of such
information and materials. Without limiting the foregoing, SmartServ shall
limit access to such information to its employees only on a "need to know"
basis. SmartServ agrees that Customer shall have the right to conduct an
audit of SmartServ's procedures used to maintain the confidentiality of
such information and materials. SmartServ agrees that, either upon learning
of, or upon a showing by Customer of, any threatened or actual unauthorized
use or disclosure of such information or materials by SmartServ's
employees, agents or subcontractors, or in the event of any loss of, or
inability to account for, any such information or materials, SmartServ will
notify Customer thereof and will cooperate as reasonably requested by
Customer to seek appropriate injunctive relief against the applicable
employees, agents or subcontractors or otherwise to prevent or curtail such
threatened or actual unauthorized use or disclosure, or to recover such
information or materials.
13.3 Customer acknowledges that SmartServ considers the Products,
Documentation, and any materials labeled "Confidential" at the time of
their delivery to Customer to be confidential. Customer agrees that unless
Customer has obtained SmartServ's written waiver, it shall keep such
confidential materials confidential and prevent their disclosure to any
person other than its Authorized Users and Affiliated Entities and its and
their employees, agents, subcontractors or representatives for purposes
specifically related to Customer's permitted use of the Product. Such level
of protection must be at least equal to that used by Customer to protect
its own confidential information.
13.4 Information shall not be considered confidential to the extent, but
only to the extent, that such information: (i) is already rightfully known
to the receiving party free of any restriction at the time it is obtained
from the other party; (ii) is subsequently rightfully learned from an
independent third party free of any restriction and without breach of this
or any other agreement; (iii) is or becomes publicly available through no
wrongful act of either party; or (iv) is independently developed by one
party without reference to any confidential information of the other.
13.5 Each party acknowledges that the other will suffer irreparable injury
and will not have an adequate remedy at law in the event of a breach of the
provisions of Sections 13.1, 13.2, or 13.3 of this MPLSA, and therefore the
non-breaching party shall be entitled to injunctive relief to restrain any
such breach, threatened or actual. The foregoing shall be in addition to
and without prejudice to any other rights such non-breaching party may have
under the Agreement, at law or in equity.
13.6 Upon expiration or termination of the Agreement, SmartServ shall
return to Customer all of Customer's confidential information including all
copies thereof, under its possession or control or under the possession or
control of SmartServ's affiliates or at Customer's option, destroy or purge
Customer's confidential information, and cause the purging of its
affiliates, systems and files of all such confidential information of
Customer and SmartServ shall deliver to Customer a written confirmation
that such destruction and purging have been carried out.
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14. INFRINGEMENT.
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14.1 INTELLECTUAL PROPERTY INFRINGEMENT. SmartServ agrees to hold Customer
harmless from, defend and handle at its own expense, any claim or action
against Customer, and/or any Affiliated Entity of Customer and their
respective directors, officers, employees and agents for actual or alleged
infringement, breach, contravention, misuse or misappropriation of any
intellectual or industrial property or proprietary right, including,
without limitation, trademarks, service marks, patents, copyrights, trade
secrets or any similar proprietary rights, based upon the Products,
Documentation, or other materials or Services furnished hereunder by
SmartServ or based on Customer's and/or Authorized Users use thereof.
SmartServ further agrees to indemnify and hold Customer, and any Affiliated
Entities of Customer and their respective directors, officers, employees
and agents harmless from and against any and all liabilities, losses,
costs, damages and expenses (including reasonable attorneys' fees), as
incurred, associated with, or arising from, any such claim or action.
SmartServ, at its sole cost, shall have the right to conduct the defense of
any such claim or action and all negotiations for its settlement or
compromise, unless otherwise mutually agreed to in writing; provided, that
any such settlement or compromise shall not be made without Customer's
consent, such consent not to be unreasonably delayed, withheld or
conditioned, and shall include an unconditional release of Customer and the
Affiliated Entities of Customer from all liability arising out of or in
relation to such action and any transactions or conduct in connection
therewith.
14.2 If any Products, Services, Documentation and/or other materials
furnished to Customer become, or in SmartServ's opinion are likely to
become, the subject of any such claim or action, then, SmartServ, at its
expense, may either: (i) procure for Customer the right to continue using
same as contemplated hereunder; (ii) modify same to render same
non-infringing (provided such modification does not adversely affect
Customer's use as contemplated hereunder); or (iii) replace same with
equally suitable, functionally equivalent, compatible, non-infringing
product, documentation, materials and/or services. If none of the foregoing
are commercially practicable, despite SmartServ using its best efforts,
then Customer shall have the right to terminate the Schedule(s) involved
and, without limiting its other remedies, shall be entitled to a refund of
all payments previously paid with respect to such Product from the date the
infringing material was first used by Customer.
14.3 Customer agrees to hold SmartServ harmless from, defend and handle at
its own expense, any claim or action against SmartServ, and/or any
Affiliated Entity of SmartServ and their respective directors, officers,
employees and agents for actual or alleged infringement, breach,
contravention, misuse or misappropriation of any intellectual or industrial
property or proprietary right, including, without limitation, trademarks,
service marks, patents, copyrights, trade secrets or any similar
proprietary rights, based upon the Customer Content. Customer further
agrees to indemnify and hold SmartServ, and any Affiliated Entity of
SmartServ and their respective directors, officers, employees and agents
harmless from and against any and all liabilities, losses, costs, damages
and expenses (including reasonable attorneys' fees), as incurred,
associated with, or arising from, any such claim or action. Customer, at
its sole cost, shall have the right to conduct the defense of any such
claim or action and all negotiations for its settlement or compromise,
unless
11
otherwise mutually agreed to in writing; provided, that any such settlement
or compromise shall not be made without SmartServ's consent, such consent
not to be unreasonably delayed, withheld or conditioned, and shall include
an unconditional release of SmartServ and its affiliated entities from all
liability arising out of or in relation to such action and any transactions
or conduct in connection therewith.
15. EXPORT ADMINISTRATION COMPLIANCE. This provision applies only in connection
with Customer's use of the Products. The Agreement is made subject to any
restrictions concerning the export of the Products or Services from the United
States of America or the country in which Customer is located. Customer and its
Authorized Users shall comply fully with all relevant export laws and
regulations of the United States and any local country, and Customer shall not
export, directly or indirectly, the Products including, the Customer Content,
Other Content, the SmartServ Content or any other technical data received from
SmartServ, or any part thereof, in violation of such laws. Customer shall not
export (via electronic means or otherwise), directly or indirectly, any
Products, the Customer Content, the Other Content, SmartServ Content, any
Services or any technical information acquired from SmartServ under the
Agreement to any country for which the United States government or any agency
thereof at the time of export requires an export license or other governmental
approval, without first obtaining the written consent to do so from SmartServ
and the United States Department of Commerce or authorized agency of the United
States government when required by an applicable statute or regulation.
16. NOTICES. All notices required under this MPLSA shall be deemed delivered
when hand-delivered to the receiving party, or when mailed, via certified mail,
return receipt requested, first class U.S. mail, or when faxed, the next
business day, with a hard copy mailed within three (3) days thereafter in the
manner set forth above. All notices shall be addressed to the applicable party,
as follows:
If to SmartServ: If to Customer:
--------------- --------------
SmartServ Online, Inc. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
One Station Place ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: SVP, Sales and Marketing Attn: First Vice President, Technology
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Contracts Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
--------------
SmartServ Online, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
12
Either party may change the information for receiving notices by providing
written notification of the change to the other party in accordance with the
terms set forth in this Section 16.
17. ASSIGNMENT; BINDING NATURE. Neither party may assign the Agreement,
including any Schedule and/or any rights and/or obligations hereunder, without
the prior written consent of the other party, which consent shall not be
unreasonably withheld; provided, however, that either party may assign the
Agreement and/or any of its rights hereunder upon written notice to the other
party, but without requiring the consent of the other party, to any affiliated
entity of that party, to that party's successor pursuant to a merger,
consolidation or sale, or to an entity which acquires all or substantially all
of that party's assets or business. The Agreement shall be binding upon and
shall inure to the benefit of the parties' respective successors and permitted
assigns. Any assignment in violation of the foregoing shall be null and void,
and of no force or effect.
18. PUBLIC ANNOUNCEMENTS. Neither party shall use the name or marks of the other
party or any likeness thereof or marks similar thereto or refer to or identify
the other party in advertising, or publicity releases, promotional or marketing
correspondence to others without, in each case, securing the prior written
consent of such other party.
19. FORCE MAJEURE. Neither party shall have any liability to the other or to
third parties for any failure or delay in performing any obligation under the
Agreement due to circumstances beyond its reasonable control including, without
limitation, acts of God or nature, actions of the government, fires, floods,
strikes, civil disturbances or terrorism or interruptions in power,
communications, satellites, the Internet or any other network.
20. GOVERNING LAW; EXCLUSIVE JURISDICTION.
--------------------------------------
The Agreement shall be governed by, and construed in accordance with, the laws
of the United States and the State of New York (exclusive of any choice of law
or other provision that would result in the application of the law of any other
jurisdiction) and the parties hereto irrevocably consent to the exclusive
jurisdiction of and venue in the applicable federal and/or New York State courts
located in the Borough of Manhattan, New York County, State of New York.
Application of the United Nations Convention of Contracts for the International
Sale of Goods is expressly excluded. The parties agree that the Uniform Computer
Information Transactions Act or any version thereof, adopted by any State in any
form ("UCITA"), shall not apply to the Agreement, and, to the extent that UCITA
is applicable, the parties agree to opt-out of the applicability of UCITA.
21. MISCELLANEOUS. The parties are independent contractors, and each party shall
have no right to bind the other. If for any reason a court of competent
jurisdiction finds any provision of the Agreement to be unenforceable, that
provision shall be enforced to the maximum extent permissible so as to effect
the intent of the parties, and the remainder of the Agreement shall continue in
full force and effect. Any failure by either party to require strict performance
by the other of any provision of the Agreement shall not constitute a waiver of
such provision or thereafter affect the party's full rights to require strict
performance. The Agreement constitutes the entire agreement between the parties
with respect to the subject matter herein, and supersedes and replaces any and
all prior or contemporaneous understandings or agreements, written or oral,
regarding such subject matter. This MPLSA and any Schedule may only be
13
amended by a specific written amendment that references this MPLSA and the
affected Schedule, if any, and is signed by authorized representatives of both
parties.
[signature page follows]
14
IN WITNESS WHEREOF, the parties have entered into this MPLSA as of the Effective
Date.
SMARTSERV ONLINE, INC. ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: By:
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer and Chairman Title: Managing Director
Date Signed: November 15, 2001 Date Signed: November 21, 2001
SmartServ Executive Sponsor: Customer Executive Sponsor:
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------ ---------------------------------
SmartServ Primary Business Contact: Customer Primary Business Contact:
------------------------------- ------------------------------
15
PRODUCT SCHEDULE GEO-A-1
------------------------
GEO WIRELESS
Upon the parties execution of this Product Schedule GEO-A-1 ("Schedule" or
"Product Schedule"), this Product Schedule shall be made a part of, and
incorporated into, that certain Master Product License and Services Agreement
No. SSOL-CCIB 01 ("MPLSA") with an Effective Date of November 1, 2001, which
together with any other applicable Schedules constitute the agreement
("Agreement") between SmartServ Online, Inc. (hereafter "SmartServ") and ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. to be known in the future as Citigroup Capital Markets Inc.
(hereafter "Customer"). In the event of a conflict between the terms and
conditions of this Schedule GEO-A-1 and the MPLSA, the terms of this Schedule
shall control to the extent such terms are inconsistent with or supplement the
MPLSA.
SECTION 1 - CUSTOMER INFORMATION
--------------------------------------------------------------------------------
Company Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
--------------------------------------------------------------------------------
Contact: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Director Global E-Commerce Content Applications,
Or ▇▇▇ ▇▇▇▇▇▇▇▇, Managing Director, Equity Derivatives
--------------------------------------------------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
City: New York State: NY Zip: 10013
--------------------------------------------------------------------------------
Telephone Number: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇; ▇▇▇ ▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Facsimile: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇; ▇▇▇ ▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
e-mail address: ▇▇▇▇.▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ ▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
--------------------------------------------------------------------------------
The parties agree that for the purposes of this Schedule GEO-A-1, the definition
of "Customer" shall be limited to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and its successor
entity, and that the definition of "Affiliated Entity of Customer" contained in
the MPLSA shall not apply to this Schedule GEO-A-1.
SECTION 2 - TERM OF SCHEDULE.
The term of this Schedule shall commence upon the Effective Date of the Schedule
and remain in effect for twenty-four (24) months thereafter, unless terminated
earlier in accordance with the terms of the MPLSA or this Schedule, or replaced
and/or amended by a successor Product Schedule GEO-A-#.
2.1 Termination of Schedule.
-----------------------
2.1.1 By SmartServ. For the purposes of this Schedule GEO-A-1 only,
notwithstanding anything to the contrary in the MPLSA, at any time,
twelve (12) months from the effective date of this Schedule, SmartServ
shall have the right to terminate, without cause or liability,
Customer's access to and use of the Products and Services, or any part
thereof, upon one-hundred eighty (180) days prior written notice to
Customer, in the event
that the license of Products and Services by SmartServ to Customer, as
evidenced by SmartServ financial statements, is not profitable to
SmartServ. In the event SmartServ delivers such termination notice to
Customer, Customer, during the one-hundred eighty (180) day termination
notice period, shall not add or give access to the Products or Services
to any additional Authorized Users beyond either (i) the number of
Authorized Users using the Product at the time notice of termination is
delivered by SmartServ, or (ii) the minimum number of Authorized Users
(400) as set forth in Section 10.3.3 hereof, whichever is the greater
number of Authorized Users. At anytime, on or after the twelfth month
from the Effective Date of this Schedule GEO-A-1, SmartServ may give a
one-hundred eighty (180) day termination notice to Customer.
2.1.2 By Customer. For the purposes of this Schedule only, Customer expressly
waives its right to terminate for convenience pursuant to Section 11.2
of the MPLSA, in connection with this Schedule GEO-A-1, except in
accordance with this Section 2.1.2. At any time, on or after the ninth
(9th) month from the Effective Date of this Schedule GEO-A-1, Customer
may give a ninety (90) day termination notice to SmartServ.
SECTION 3 - AUTHORIZED USERS. For purposes of this Schedule, "AUTHORIZED USER"
means an employee of Customer who has been entitled by Customer to access the
Product and has been assigned a user identification number and password by
SmartServ. At Customer's sole discretion, additional types of Authorized Users
may be added, but only pursuant to a separate mutually agreed upon successor
Product Schedule.
3.1 Authorized User Entitlements.
-----------------------------
Customer acknowledges, represents and warrants that:
3.1.1 Only Authorized Users shall be granted access to the Product.
3.1.2 Each Authorized User has agreed, in writing, to the compliance
requirements imposed by the applicable markets and/or exchanges
(collectively, the "EXCHANGES") and each Authorized User has been,
prior to using the Product, classified in accordance with the rules and
regulations set forth and as amended from time to time by the
Exchanges, as a PROFESSIONAL USER. The term "PROFESSIONAL USER" is
defined by the respective Exchanges.
3.1.3 Any applicable fees imposed by the Exchanges have been paid in full, or
will be paid by Customer in accordance with the fee payment
requirements imposed by the Exchanges. To the extent that Customer
fails to pay any applicable Exchange fee for an Authorized User,
SmartServ may, at SmartServ's discretion, remit such fee to the
respective Exchanges, and Customer shall, within thirty (30) calendar
days following Customer's receipt of written documentation establishing
that SmartServ rightfully and correctly remitted such fee, reimburse
the amount remitted by SmartServ for such fee.
3.1.4 Customer acknowledges and agrees that SmartServ is not: (i) providing
any investment advice; (ii) executing, accepting or directing any
trades for or on behalf of any person or entity; (iii) providing any
clearing services; (iv) providing any trade or order confirmation; or
(v) providing any services that require licensing or registration with
the NASD, SEC, or other regulatory body or Exchanges. Customer shall
ensure that each of its Authorized Users acknowledges and agrees to the
foregoing.
3.1.5 Subsequent to the assignment of ID/Passwords to the Authorized Users by
SmartServ, each Authorized User shall be responsible for the use of
their passwords and/or login IDs.
3.1.6 Customer has sole control of, and responsibility for, the distribution
of and entitlement to access to the Product for its Authorized Users.
It is Customer's sole responsibility to ensure that access to the
Product is granted only to Authorized Users as defined in this Product
Schedule GEO-A-1. Further, Authorized User IDs are not transferable and
are for use solely by the individual Authorized User to whom the ID is
issued.
3.1.7 Customer will defend and indemnify SmartServ in accordance with the
MPLSA for direct damages incurred by SmartServ as a result of
Customer's or an Authorized User's noncompliance with or violation of
Sections 3.1.2, 3.1.3 of this Product Schedule Geo-A-1 and for Section
3.1.6, above, to the extent that such non-compliance or violation is
caused by Customer or its employees.
3.2 ***
SECTION 4 - ***
SECTION 5 - ***
SECTION 6 - TRAINING. SmartServ shall provide training in the use and operation
of the Product provided hereunder for all Customer technical or management
personnel designated by the Customer's technical or management personnel at a
time or times agreeable to both parties. This training shall enable Customer to
provide its Authorized Users with the Tier One support specified in Section
4.1.1 of Support Schedule GEO-C-1 (Help Desk).
SECTION 7 - The parties expressly agree that for the purposes of this Product
Schedule only, the disclaimer of the Warranty of Fitness for a Particular
Purpose contained in Section 7.3 of the MPLSA does not apply.
SECTION 8 - RIGHT TO DISTRIBUTE. SmartServ grants Customer a non-exclusive,
non-transferable right to distribute the Product to Authorized Users only: (a)
during the term of this Schedule; (b) in connection with Customer's provision to
its Authorized User's of wireless access to the Product on Approved Devices; and
(c) for such Authorized Users' use. Customer may distribute the Product under a
Customer proprietary brand name. Customer shall be responsible for all
provisioning and order fulfillment in connection with distribution of the
Product.
***
SECTION 9 - RECORDS AND REPORTS. Customer shall collect and maintain for each
Authorized User complete and accurate Authorized User records for the Product.
These records shall include: the date the Product was provided to the Authorized
User and the name and contact information of the Authorized User (collectively,
"RECORDS"). Such Records shall be owned by Customer, and shall be Confidential
Information of Customer for purposes of this Schedule, but shall be subject to
audit pursuant to Section 6 Audit Rights of the MPLSA. Customer shall cooperate
fully with SmartServ in the event of any request by any Exchange or
Exchange-regulating body that requires the disclosure of any Records to such
Exchange or Exchange-regulating body.
SECTION 10 - ***
SECTION 11 - ***
SECTION 12 - ***
IN WITNESS WHEREOF, the parties have entered into this Product Schedule GEO-A-1
as of the Effective Date.
SMARTSERV ONLINE, INC. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------- -----------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------- -----------------------
Title: Chief Executive Officer and Chairman Title: Managing Director
--------------------------------------- -----------------------
EXHIBIT 1
TO PRODUCT SCHEDULE GEO-A-1
GEO-SOW- 1
***
IN WITNESS WHEREOF, the parties have entered into this GEO Statement of Work-1
as of the Effective Date.
SMARTSERV ONLINE, INC. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------- -----------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------- -----------------------
Title: Chief Executive Officer and Chairman Title: Managing Director
--------------------------------------- -----------------------
PROFESSIONAL SERVICES SCHEDULE GEO-B-1
--------------------------------------
GEO WIRELESS
Upon SmartServ's execution of this Professional Services Schedule GEO-B-1
("SCHEDULE" or "PROFESSIONAL SERVICES SCHEDULE"), this Schedule shall be made a
part of, and incorporated into, that certain Master Product License and Services
Agreement No. SSOL-CCIB 01 ("MPLSA") with an Effective Date of November 1, 2001,
which together with any other applicable Schedules and exhibits thereto
constitute the agreement ("Agreement") between SmartServ Online, Inc. (hereafter
"SmartServ") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc (to be known in the future as
Citigroup Corporate Investment Bank) (hereafter "Customer"). In the event of a
conflict between the terms and conditions of this Schedule GEO B-1 and the
MPLSA, the terms of this Schedule shall control to the extent such terms are
inconsistent with or supplement the MPLSA.
SECTION 1 - CUSTOMER INFORMATION.
--------------------------------------------------------------------------------
Company Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
--------------------------------------------------------------------------------
Contact: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Director Global E-Commerce Content Applications or
▇▇▇ ▇▇▇▇▇▇▇▇, Managing Director, Equity Derivatives
--------------------------------------------------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
City: New York State: NY Zip: 10013
--------------------------------------------------------------------------------
Telephone Number: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇; ▇▇▇ ▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Facsimile: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇; ▇▇▇ ▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
e-mail address: ▇▇▇▇.▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ ▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
--------------------------------------------------------------------------------
The parties agree that for the purposes of this Schedule GEO-B-1, the definition
of "Customer" shall be limited to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and its successor
entity, and that the definition of "Affiliated Entity of Customer" contained in
the MPLSA shall not apply to this Schedule GEO-B-1.
SECTION 2 - TERM OF SCHEDULE. The term of this Schedule shall be coterminous
with Product Schedule GEO-A-1 (see Section 2.1 of Schedule GEO-A-1 for term and
termination provisions). No modification of this Schedule shall affect the term
of this Schedule, unless specifically agreed to by the parties in writing.
SECTION 3 - CUSTOM DEVELOPMENT, IMPLEMENTATION AND INTEGRATION SERVICES.
3.1 Description of Services. With the assistance and cooperation of Customer,
SmartServ shall provide customization, implementation and integration services
as necessary to configure the Products for initial launch by Customer ("Standard
Services"), all as more particularly described in the GEO Statement of Work No.
1, ("GEO-SOW-1"), dated November 1, 2001
which is attached as Exhibit 1 to Product Schedule GEO-A-1 and incorporated
herein by reference.
3.2 Fees. SmartServ shall provide the Standard Services at the fees set forth in
Attachment A to this Professional Services Schedule GEO-B-1. Any additional
custom development, implementation or integration Services ("Additional
Services") requested by Customer and approved by SmartServ, as set forth in a
separate mutually agreed upon statement of work attached hereto and incorporated
herein by reference, shall be billed at the rates set forth in Attachment A to
this Schedule GEO-B-1, unless otherwise mutually agreed to by the parties. Such
Additional Services may include, but are not limited to, any reconfiguration or
other customization services requested after the date of the GEO-SOW-1,
performance of other additional testing procedures and any other customization,
implementation and integration Services not included as part of the Standard
Services.
IN WITNESS WHEREOF, the parties have entered into this Schedule as of the
Effective Date above.
SMARTSERV ONLINE, INC. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------- -----------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------- -----------------------
Title: Chief Executive Officer and Chairman Title: Managing Director
--------------------------------------- -----------------------
Date Signed: November 15, 2001 Date Signed: November 21, 2001
--------------------------------- -----------------
Attachment A
to Professional Services Schedule GEO-B-1
***
SUPPORT SCHEDULE GEO-C-1
------------------------
GEO WIRELESS
This Support Schedule GEO-C-1 ("SCHEDULE" or "SUPPORT SCHEDULE"), shall be made
a part of, and incorporated into, that certain Master Product License and
Services Agreement No. SSOL-CCIB 01 ("MPLSA") with an Effective Date of November
1, 2001, which together with any other applicable Schedules and exhibits thereto
constitute the agreement ("AGREEMENT") between SmartServ Online, Inc. (hereafter
"SmartServ") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc. (to be known in the future as
Citigroup Corporate & Investment Bank) (hereafter "Customer"). In the event of a
conflict between the terms and conditions of this Schedule GEO-C-1 and the
MPLSA, the terms of this Schedule shall control to the extent such terms are
inconsistent with or supplement the MPLSA.
SECTION 1 - CUSTOMER INFORMATION.
--------------------------------------------------------------------------------
Company Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
--------------------------------------------------------------------------------
Contact: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Director Global E-Commerce Content Applications,
or ▇▇▇ ▇▇▇▇▇▇▇▇, Managing Director, Equity Derivatives
--------------------------------------------------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
City: New York State: NY Zip: 10013
--------------------------------------------------------------------------------
Telephone Number: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇; ▇▇▇ ▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Facsimile: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇; ▇▇▇ ▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
e-mail address: ▇▇▇▇.▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ ▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
--------------------------------------------------------------------------------
The parties agree that for the purposes of this Schedule GEO-C-1, the definition
of "Customer" shall be limited to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and its successor
entity, and that the definition of "Affiliated Entity of Customer" contained in
the MPLSA shall not apply to this Schedule GEO-C-1.
SECTION 2 - TERM OF SCHEDULE.
The term of this Schedule shall be coterminous with Product Schedule GEO-A-1 of
the Agreement. No modification of this Schedule shall affect the term of this
Schedule, unless specifically agreed to by the parties in writing.
SECTION 3 - ***
SECTION 4 - SUPPORT SERVICES. During the term of this Schedule, support service
responsibilities will be allocated as follows:
4.1 Help Desk.
---------
4.1.1 Tier One (1) Support Responsibility. Customer shall provide Tier 1
support for all Authorized Users, which shall include fielding Service
Calls (hereinafter defined) and other technical support requests from
Authorized Users and providing first-line troubleshooting and issue
resolution services.
4.1.2 Tier Two (2) Support Responsibility. SmartServ shall provide Tier 2
technical assistance and consultation for all levels of Severity issues
from 7:00 AM-7:00 PM EST/EDT, Monday-Friday, excluding days when the
U.S. stock exchanges are closed, for Customer Tier 1 help desk
personnel and other Customer technical or management personnel only.
SmartServ shall provide Tier 2 technical assistance and consultation at
all other hours for Severity 1 Problems only.
The SmartServ Tier 2 help desk support shall function solely to provide
technical support and answer questions of the Customer's Tier 1 or
technical representatives, and only on issues that remain unresolved
after reasonable efforts to assist the Authorized User by the Customer
Tier 1 help desk. SmartServ Tier 2 help desk support shall have no
contact with Authorized Users of the Product and shall not be expected
nor requested to have contact with Authorized Users. Customer's
questions and support inquiries will be responded to depending on the
nature and severity of the question/support inquiry in accordance with
the Severity Levels as set forth above.
4.2 Account Management.
------------------
SmartServ will assign an account manager that will be responsible for
maintaining the on-going relationship between SmartServ and Customer.
4.3 Software Maintenance.
--------------------
4.3.1 Service Calls. Customer's calls to SmartServ's Help Desk to make a
trouble report ("Service Calls") during the time that SmartServ
provides the Services under this Schedule, will be responded to based
on the level of severity in accordance with Section 3 above, entitled
"Problem Severity Levels."
4.3.2 Changes Requested by Customer. SmartServ may charge Customer, at the
rates for professional services set forth in Attachment A to
Professional Services Schedule GEO-B-1, for time spent identifying and
resolving problems to the extent Service Calls are caused by changes
made to the Products as a result of a specific request by Customer to
add or change functionality or features which are not produced,
marketed and generally made available by SmartServ to other similarly
situated SmartServ customers using a Product(s) similar to Customer.
4.3.3 Refinements. SmartServ shall provide Customer with all revisions, new
versions and releases, updates, improvements, modifications and
additional functionality enhancements to the Products, which are
produced and generally made available free of
charge by SmartServ to other Customers using similar Products as
Customer, at no additional cost to Customer ("Refinements"). If a
Refinement is acceptable to Customer, SmartServ shall provide such
services as are required, if any, to enable Customer to continue
Customer's use of the Products with at least the same functionality as
was available prior to installation of the Refinement. If any such
Refinement adversely affects Customer's use of the Products, Customer's
operations or other systems or processes in the use of the Products,
then Customer can reject such Refinement, and SmartServ shall return
the Products to the version prior to the attempted Refinement
installation. For purposes of this Agreement, a Refinement once
incorporated into any Product shall be considered a part thereof for
all purposes hereunder.
IN WITNESS WHEREOF, the parties have entered into this Support Schedule GEO-C-1
as of the Effective Date.
SMARTSERV ONLINE, INC. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------- -----------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------- -----------------------
Title: Chief Executive Officer and Chairman Title: Managing Director
--------------------------------------- -----------------------
HOSTING SCHEDULE GEO-D-1
------------------------
GEO WIRELESS
Upon SmartServ's execution of this Hosting Schedule GEO-D-1 ("SCHEDULE" or
"HOSTING SCHEDULE"), this Hosting Schedule shall be made a part of, and
incorporated into, that certain Master Product License and Services Agreement
No. SSOL-CCIB 01 ("MPLSA") with an Effective Date of November 1, 2001 which
together with any other applicable Schedules and exhibits thereto constitute the
agreement ("AGREEMENT") between SmartServ Online, Inc. (hereafter "SmartServ")
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (to be known in future as Citigroup Capital
Markets Inc.) (hereafter "Customer"). In the event of a conflict between the
terms and conditions of this Schedule and the MPLSA, the terms of this Schedule
shall control to the extent such terms are inconsistent with or supplement the
MPLSA.
SECTION 1 - CUSTOMER INFORMATION.
--------------------------------------------------------------------------------
Company Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
--------------------------------------------------------------------------------
Contact: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Director Global E-Commerce Content Applications,
or ▇▇▇ ▇▇▇▇▇▇▇▇, Managing Director, Equity Derivatives
--------------------------------------------------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
City: New York State: NY Zip: 10013
--------------------------------------------------------------------------------
Telephone Number: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇; ▇▇▇ ▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Facsimile: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇; ▇▇▇ ▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
e-mail address: ▇▇▇▇.▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ ▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
--------------------------------------------------------------------------------
The parties agree that for the purposes of this Schedule GEO-D-1, the definition
of "Customer" shall be limited to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and its successor
entity, and that the definition of "Affiliated Entity of Customer" contained in
the MPLSA shall not apply to this Schedule GEO-D-1.
SECTION 2 - TERM OF SCHEDULE.
The term of this Schedule shall be coterminous with Product Schedule GEO-A-1 of
the Agreement (see Section 2.1 of Schedule GEO-A-1 for term and termination
provisions). No modification of this Schedule shall affect the term of this
Schedule, unless specifically agreed to by the parties in writing.
SECTION 3 - HOSTING SERVICES. During the term of this Schedule, SmartServ shall
host the applicable Product, as described more fully in Product Schedule
GEO-A-1, for access by Authorized Users, in accordance with the following:
3.1 Dedicated Lines.
---------------
3.1.1 Customer shall provide and maintain a dedicated private line from the
SmartServ data center to the Customer data center for access by
SmartServ to the Customer Content contained in Customer's database
("Customer's Dedicated Line").
3.1.2 SmartServ shall provide and maintain a dedicated private line between
the SmartServ data center and GoAmerica, which will serve as a wireless
Internet service provider.
3.2 Uptime Service Commitment.
-------------------------
The Product shall be available for access by Authorized Users, except for
scheduled downtimes and required repairs as detailed in this Section. The
Product shall be available at least 99.97 % of the time during prime service
hours, which are Monday through Friday 7:00AM until 10:59PM Eastern Standard
Time exclusive of Customer holidays ("Prime Service Hours"). The "Uptime Service
Commitment" shall be determined by measuring the total number of minutes
comprising Prime Service Hours, less the number of minutes during Prime Service
Hours that the Products are not available to Authorized Users in any given
thirty (30) day period. For the purposes of the Uptime Service Commitment, the
Products shall be considered to be unavailable for any period that there is a
total outage, meaning that there is a complete failure or unavailability of
SmartServ's Hosting Environment. The Uptime Service Commitment shall be measured
only within SmartServ's firewall ("SmartServ's Hosting Environment"), as
represented by figure "C" in Exhibit 1 attached hereto. The measurement of the
Uptime Service Commitment shall not include any failure to access the Product
caused by any party other than SmartServ.
In the event that, for any consecutive sixty (60) day period during the term of
this Schedule, the Uptime Service Commitment falls below 99.97%, SmartServ shall
have ten (10) days from the date of discovery of such failure to provide a plan
of action to remedy the situation.
It shall not be deemed to be a failure or unavailability if Customer or any
Authorized User is unable to access the Products due to any event beyond the
control of SmartServ, including, but not limited to: (i) unavailability due to
the failure of any party outside of SmartServ's control, as detailed in Section
7.4 of the MPLSA, including any failure of the Customer's Dedicated Line
described in Section 3.1.1, hereof or any other failure on the part of Customer,
or (ii) unavailability due to any other causes unrelated to the failure of the
Product or SmartServ's Hosting Environment.
3.3 Scheduled Maintenance.
---------------------
For the purpose of maintaining the Uptime Service Commitment, scheduled
maintenance shall be performed during non-Prime Service Hours at times mutually
agreed to the parties. Scheduled downtime will be conducted at SmartServ's
discretion, but shall not be scheduled between the hours of 7:00 AM-11:00PM
EST/EDT, Monday through Friday, except those days when the U.S. equity markets
are closed, or when there is a Customer holiday. However, if agreed to by both
parties, scheduled maintenance may be performed during Prime Service Hours. From
time to time, SmartServ will schedule and perform, at its own cost, periodic
maintenance, and repair checks and services; provided, however, that no such
maintenance or checks and services shall
disrupt the functioning of the Products and Services. SmartServ shall provide
Customer with no less than one (1) week advance notice of such scheduled
downtime.
3.4 Disaster Recovery.
-----------------
SmartServ's Hosting Services will have emergency recovery features for the
purpose of preventing service interruptions or outages. SmartServ shall, at all
times, have back-up servers and other equipment necessary to enable SmartServ to
meet its Uptime Service Commitment and Response Time Commitment (see Section 4
below). SmartServ shall be responsible only for components at its premises and
for network components under its control. Customer may request that SmartServ
participate in a test of Customer's disaster recovery capability once per year
to confirm that SmartServ's system is capable of operating in a disaster
recovery mode.
Measurement of compliance with the Uptime Service Commitment shall exclude time
during a disaster situation.
SECTION 4 - RESPONSE TIME.
4.1 Response Time Defined.
---------------------
"Response Time" means the amount of time in seconds that elapses from the second
when a request for information enters into the firewall of SmartServ's Hosting
Environment (the "Demarcation Point") at its New York Data Center to the second
when that request for information leaves the Demarcation Point to be forwarded
to the applicable carrier. (See Demarcation Point, "Figure C" depicted in "End
to End Configuration" Exhibit 1 hereto).
The "Average Response Time" is the average measurement of a Response Time for a
particular request for information, as measured by SmartServ submitting a
request for information [pinging], once every 10 minutes, over a rolling 24-hour
period.
4.2 Average Response Time Commitment.
--------------------------------
4.2.1 As of the effective date of this Schedule, SmartServ represents that it
will maintain Average Response Times as follows for the following types
of requests for information ("Average Response Time Commitment")
Snap Quote: .4 sec
Watch List (18 symbols) .8 sec
News Headline .8sec
News Text 1.4sec
Chart Intra-day 2.5sec
Chart 5 day 4sec
SmartServ shall conduct application testing and reporting at the request of, and
upon reasonable notice by, Customer.
4.2.2 Customer acknowledges and agrees that SmartServ has not had the
opportunity to conduct full Response Time testing which takes into
account full usage by Authorized Users, and
therefore SmartServ may, at the time that either (i) more than 500
Authorized Users have been entitled to use the Products; or (ii) a
material change is made to the SmartServ Hosting Environment, have the
right to amend the above Average Response Time Commitment, to reflect
more accurately the Average Response Times due to this increased usage
or change in architecture. Customer acknowledges and agrees that the
Average Response Time Commitment in Section 4.2.1 above applies only
when S&P/Comtex is used as the provider of Other Content. SmartServ
will make every reasonable effort to keep its Average Response Time
Commitment short enough so that the total end-to-end request for
information is less than ten (10) seconds. SmartServ does not guarantee
and is not liable for the end-to-end response time, but only the
Average Response Time Commitment defined above in Section 4.2.1.
4.2.3 In the event that, for any consecutive thirty (30) day period during
the term of this Schedule, the Average Response Time Commitment is
greater than the times detailed in Section 4.2.1 (or as amended
pursuant to Section 4.2.2), Customer shall be entitled to the Usage
Credit set forth in Section 10.4 of Product Schedule GEO-A-1, and
SmartServ shall have ten (10) calendar days from the date of discovery
of such failure to remedy the situation.
SECTION 5 - ONGOING MONITORING SERVICES.
5.1 SmartServ will monitor its Hosting Services for the duration of this
Hosting Schedule with respect to (i) Uptime Service Commitment; (ii)
Average Response Time Commitment; and (iii) intrusion detection.
5.2 SmartServ shall prepare and make available to Customer monthly reports
setting forth the results of its monitoring activities pursuant to
Section 5.1 above. In addition, upon reasonable notice by Customer,
with respect to Average Response Time Commitment monitoring, SmartServ
shall provide such reports in a file format which shall include (i) the
time of completion after the request and the ensuing response, (ii) the
type of transaction, and (iii) the Response Time of each transaction.
[signature page follows]
IN WITNESS WHEREOF, the parties have entered into this Hosting Schedule GEO-D-1
as of the Effective Date above.
SMARTSERV ONLINE, INC. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------- -----------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------- -----------------------
Title: Chief Executive Officer and Chairman Title: Managing Director
--------------------------------------- -----------------------
Date Signed: November 15, 2001 Date Signed: November 21, 2001
--------------------------------- -----------------
EXHIBIT 1
(to Hosting Schedule GEO-D-1)
END-TO-END CONFIGURATION
***
PRODUCT SCHEDULE PRIME-A-1
--------------------------
PRIME WIRELESS
Upon the parties execution of this Product Schedule PRIME-A-1 ("Schedule" or
"Product Schedule"), this Product Schedule shall be made a part of, and
incorporated into, that certain Master Product License and Services Agreement
No. SSOL-CCIB 01 ("MPLSA") with an Effective Date of November 1, 2001, which
together with any other applicable Schedules constitute the agreement
("Agreement") between SmartServ Online, Inc. (hereafter "SmartServ") and ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. to be known in the future as Citigroup Capital Markets Inc.
(hereafter "Customer"). In the event of a conflict between the terms and
conditions of this Schedule PRIME-A-1 and the MPLSA, the terms of this Schedule
shall control to the extent such terms are inconsistent with or supplement the
MPLSA.
SECTION 1 - CUSTOMER INFORMATION
--------------------------------------------------------------------------------
Company Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
--------------------------------------------------------------------------------
Contact: ▇▇▇ ▇▇▇▇▇▇, Director, Equity Finance
--------------------------------------------------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
City: New York State: NY Zip: 10013
--------------------------------------------------------------------------------
Telephone Number: ▇▇▇ ▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Facsimile: ▇▇▇ ▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
e-mail address: ▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇
--------------------------------------------------------------------------------
The parties agree that for the purposes of this Schedule PRIME-A-1, the
definition of "Customer" shall be limited to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and its
successor entity, and that the definition of "Affiliated Entity of Customer"
contained in the MPLSA shall not apply to this Schedule PRIME-A-1.
SECTION 2 - TERM OF SCHEDULE.
The term of this Schedule shall commence upon the Effective Date of the Schedule
and be coterminous with the initial term of Product Schedule GEO A-1, unless
terminated earlier in accordance with the terms of the MPLSA or this Schedule,
or replaced and/or amended by a successor Product Schedule PRIME-A-#.
2.1 Termination of Schedule.
-----------------------
2.1.1 By SmartServ. For the purposes of this Schedule PRIME-A-1 and
notwithstanding anything to the contrary in the MPLSA, at any time from
twelve (12) months from the effective date of this Schedule, SmartServ
shall have the right to terminate, without cause or liability,
Customer's access to and use of the Products and Services, or any part
thereof, upon one-hundred eighty (180) days prior written notice to
Customer, in the event that the license of the Products and Services to
Customer by SmartServ, as evidenced by SmartServ financial statements,
is not profitable to SmartServ. In the event that SmartServ terminates
Product Schedule GEO-A-1 in accordance with the provisions thereof,
such termination notice shall also be delivered to the Customer contact
specified in Section 1 of this Schedule PRIME-A-1 and such termination
notice shall apply concurrently to this Product Schedule PRIME-A-1,
except that Customer, during the one-hundred eighty (180) day
termination notice period shall not add or give access to the Products
or Services to any additional Authorized Users beyond the maximum
number of Authorized Users (350) as set forth in Section 3.2 hereof. In
the event that Product Schedule GEO-A-1 is terminated, the parties
herein may mutually agree to renegotiate this Schedule PRIME A-1 in
order to include the GEO functionality at a cost to be agreed upon by
the parties.
2.1.2 By Customer. For the purposes of this Schedule only, Customer
expressly waives its right to terminate for convenience pursuant to
Section 11.2 of the MPLSA, in connection with this Schedule PRIME-A-1,
except in accordance with this Section 2.1.2. At any time, on or after
the ninth (9th) month from the Effective Date of this Schedule
PRIME-A-1, Customer may give a ninety (90) day termination notice to
SmartServ. In the event that Schedule GEO-A-1 is terminated by Customer
(as identified in Section 1 of the Schedule GEO-A-1), in accordance
with the provisions thereof, at any time prior to the termination or
expiration of this Schedule PRIME A-1, then this Schedule PRIME A-1
shall terminate concurrently with the termination or expiry of the
Schedule GEO-A-1, unless the parties hereto mutually agree to
renegotiate this Schedule PRIME A-1 in order to include the GEO
functionality at a cost to be agreed upon by the parties.
SECTION 3 - AUTHORIZED USERS. For purposes of this Schedule, "AUTHORIZED USER"
means an employee and/or client of Customer who has been entitled by Customer to
access the Product and has been assigned a user identification number and
password. At Customer's sole discretion, additional types of Authorized Users
may be added, but only pursuant to a separate mutually agreed upon successor
Product Schedule.
3.1 Authorized User Entitlements.
-----------------------------
Customer acknowledges, represents and warrants that:
3.1.1 Only Authorized Users shall be granted access to the Product.
3.1.2 Each Authorized User has agreed, in writing, to the compliance
requirements imposed by the applicable markets and/or exchanges
(collectively, the "EXCHANGES") and each Authorized User has been,
prior to using the Product, classified in accordance with the rules and
regulations set forth and as amended from time to time by the
Exchanges, as a PROFESSIONAL USER. The term "PROFESSIONAL USER" is
defined by the respective Exchanges.
3.1.3 Any applicable fees imposed by the Exchanges have been paid in full, or
will be paid by Customer in accordance with the fee payment
requirements imposed by the Exchanges. To the extent that an Authorized
User's applicable Exchange Fee is not paid, SmartServ may, at
SmartServ's discretion, remit such fee to the respective Exchanges on
behalf of the Authorized User, and Customer shall, within thirty (30)
calendar days following Customer's receipt of written documentation
establishing that SmartServ rightfully and correctly remitted such fee,
reimburse the amount remitted by SmartServ for such fee.
3.1.4 Customer acknowledges and agrees and will ensure that each of its
Authorized Users acknowledges and agrees, that neither SmartServ nor
its third party content providers are: (i) providing any tax, legal,
investment recommendations or advice; (ii) executing, accepting or
directing any trades for or on behalf of any person or entity; (iii)
providing any clearing services; (iv) providing any trade or order
confirmation; or (v) providing any services that require licensing or
registration with the NASD, SEC, or other regulatory body or Exchanges;
and (vi) that each Authorized User shall not redistribute, decompile or
reverse engineer any portion of the Product.
3.1.5 Each Authorized User shall be responsible for the use of their
passwords and/or login IDs.
3.1.6 Customer has sole control of, and responsibility for, the distribution
of and entitlement to access to the Product for its Authorized Users.
It is Customer's sole responsibility to ensure that access to the
Product is granted only to Authorized Users as defined in this Product
Schedule PRIME-A-1. Further, Authorized User IDs are not transferable
and are for use solely by the individual Authorized User to whom the ID
is issued.
3.1.7 Customer will defend and indemnify SmartServ in accordance with the
MPLSA for direct damages incurred by SmartServ as a result of
Customer's or an Authorized User's noncompliance with or violation of
Sections 3.1.2, 3.1.3 and/or 3.1.4 of this Product Schedule PRIME-A-1
and for Section 3.1.6, above, to the extent that such non-compliance or
violation is caused by Customer or its Authorized Users.
3.2 Number of Authorized Users.
For the purposes of this Schedule only, Customer shall be entitled to provide
access to the Product to no more than three hundred and fifty (350) Authorized
Users. Access to the Product by any additional Authorized Users may be
authorized under a separate successor Product Schedule, by mutual agreement of
the parties.
Section 4 ***
4.2 Customer agrees that SmartServ is not required to develop software to be
resident on any Approved Device; provided, however, that SmartServ shall be
obligated to support such resident software to the extent that such resident
software is commercially marketed and publicly available. SmartServ will only
support devices that use commercially marketed and publicly available browsers.
4.3 ***
SECTION 5 - DESCRIPTION OF SMARTSERV PRODUCT. For the purpose of this Product
Schedule PRIME-A-1, Product shall mean SmartServ's proprietary financial
application (the "Product") licensed by Customer for use by Authorized Users as
defined herein, subject to the terms of this Schedule and the MPLSA. The Product
will be customized for Customer to reflect a unique "look and feel" as agreed to
by the parties and specified in Section 12 ("PRIME wireless user interface
screen layout") of PRIME-SOW-1. For the purposes of this Product Schedule
PRIME-A-1, the term "Customer Content" shall mean the PRIME Customer Content as
set forth in the PRIME-SOW-1. SmartServ will provide a front-end and back-end
SmartServ interface to enable Authorized Users using Approved Devices the
ability to access the Product and Services, which will include the ability to
access wirelessly, Customer Content.
5.1 Wireless Access to Customer Content.
------------------------------------
5.1.1 Customer shall provide all Customer Content to SmartServ in XML, .txt
or such other format as may be mutually agreed to by the parties.
Customer acknowledges and agrees that Customer's failure to provide
Customer Content in accordance with the foregoing requirements may
result in delays or additional charges to be charged in accordance with
the rates specified in the Professional Services Schedule GEO-B-1,
Customer understands and agrees that SmartServ's ability to render
Customer Content to the Approved Devices is dependent upon and subject
to, at least in part, Customer's ability to provide the Customer
Content in XML or .txt or such other format as may be mutually agreed
to by the parties.
5.1.2 ***
5.1.3 ***
5.1.4. The Product will display Customer Content on the Approved Devices as
more specifically detailed in the PRIME-SOW-1 attached as Exhibit 1
hereto.
5.2 Wireless Access to Customer Content and Functionality.
-----------------------------------------------------
The Product will display the Customer Content and function on the Approved
Devices as more specifically detailed in the PRIME SOW-1.
SECTION 6 - SUPPORT AND TRAINING. SmartServ shall provide Support Services to
Customer as set forth in Support Schedule GEO-C-1. SmartServ shall provide
training in the use and operation of the Product provided hereunder for all
Customer technical or management personnel designated by the Customer's
technical or management personnel at a time or times agreeable to both parties.
This training shall enable Customer to provide its Authorized Users with the
Tier One support specified in Section 4.1.1 of Support Schedule GEO-C-1 (Help
Desk).
SECTION 7 - The parties expressly agree that for the purposes of this Product
Schedule only, the disclaimer of the Warranty of Fitness for a Particular
Purpose contained in Section 7.3 of the MPLSA does not apply.
SECTION 8 - RIGHT TO DISTRIBUTE. SmartServ grants Customer a non-exclusive,
non-transferable right to distribute the Product to Authorized Users only: (a)
during the term of this Schedule; (b) in connection with Customer's provision to
its Authorized User's of wireless access to the Product on Approved Devices; and
(c) for such Authorized Users' use. Customer may distribute the Product under a
Customer proprietary brand name. Customer shall be responsible for all
provisioning and order fulfillment in connection with distribution of the
Product.
Nothing contained in the MPLSA or this Schedule shall in any way restrict
SmartServ's right to offer or provide Product to third parties under different
brand names, excluding the Customer Content and "look and feel" (as depicted in
Section 12 of PRIME-SOW-1 entitled "PRIME wireless user interface screen").
SECTION 9 - RECORDS AND REPORTS. Customer shall collect and maintain for each
Authorized User complete and accurate Authorized User records for the Product.
These records shall include: the date the Product was provided to the Authorized
User and the name and contact information of the Authorized User (collectively,
"RECORDS"). Such Records shall be owned by Customer, and shall be Confidential
Information of Customer for purposes of this Schedule, but shall be subject to
audit pursuant to Section 6 Audit Rights of the MPLSA. Customer shall cooperate
fully with SmartServ in the event of any request by any Exchange or
Exchange-regulating body that requires the disclosure of any Records to such
Exchange or Exchange-regulating body.
SECTION 10 -FEES.
10.2 ***
10.4 Credits for GEO Subscriber Fees. The Parties agree that, if feasible, an
Average Response Time for PRIME Customer Content will be determined. In the
event such a determination is made, the parties will discuss and mutually agree
as to the methodology for any credit of an Authorized User's GEO Subscriber Fees
for delivery of PRIME content in excess of the Average Response Time Commitment.
SECTION 11 ***
SECTION 12 ***
o
IN WITNESS WHEREOF, the parties have entered into this Product Schedule
PRIME-A-1 as of the Effective Date.
SMARTSERV ONLINE, INC. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------- -----------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------- -----------------------
Title: Chief Executive Officer and Chairman Title: Managing Director
--------------------------------------- -----------------------
EXHIBIT 1
TO PRODUCT SCHEDULE PRIME-A-1
PRIME-SOW- 1
***
IN WITNESS WHEREOF, the parties have entered into this PRIME Statement of Work
as of March ___, 2002.
SMARTSERV ONLINE, INC. ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Chief Executive Officer and Chairman Title: Managing Director
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