Exhibit 10.2
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Master Product License and Services Agreement
between
SMARTSERV ONLINE, INC.
and
SALOMON SMITH BARNEY 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 One Station Place, Stamford, Connecticut 06902, and Salomon
Smith Barney Inc. to be known in the future as Citigroup Capital Markets Inc.
(of which Citigroup Inc. is the parent company), with offices at 388 Greenwich
Street, New York, NY 10013 ("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 Salomon Smith Barney 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.
MPLSA No. SSOL-CCIB-01
"CUSTOMER" means Salomon Smith 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).
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).
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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.
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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.
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
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MPLSA No. SSOL-CCIB-01
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:
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
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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 ;
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
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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 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.
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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.
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
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MPLSA No. SSOL-CCIB-01
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.
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.
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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, 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
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MPLSA No. SSOL-CCIB-01
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.
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,
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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 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
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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. Salomon Smith Barney Inc.
One Station Place 125 Broad Street, 6th Floor
Stamford, CT 06902 New York, NY 10004
Attn: SVP, Sales and Marketing Attn: First Vice President,
Fax: (203) 353-5962 Technology Contracts Department
Fax: (212) 801-2755
With a copy to:
--------------
SmartServ Online, Inc.
One Station Place
Stamford, CT 06902
Attn: General Counsel
Fax: (203) 353-5962
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
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MPLSA No. SSOL-CCIB-01
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 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]
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MPLSA No. SSOL-CCIB-01
IN WITNESS WHEREOF, the parties have entered into this MPLSA as of the Effective
Date.
SMARTSERV ONLINE, INC. SALOMON SMITH BARNEY INC.
By: By:
Name: Sebastian E. Cassetta Name: John Wizeman
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/ Sebastian E. Cassetta /s/ John Wizeman
- --------------------------------- --------------------------------
SmartServ Primary Business Contact: Customer Primary Business Contact:
- --------------------------------- --------------------------------
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