Exhibit 10.25
AMENDED AND RESTATED INTEGRATION PROGRAM AGREEMENT
FOR VMAIL AND INSTANT MESSENGER ENGINE
This Amended and Restated Integration Program Agreement dated as of April 30,
2003 (the "Agreement"), replacing in its entirety the Integration Program
Agreement dated as of August 13, 2002 ("Effective Date") and the Amendment to
the Integration Program Agreement dated August 30, 2003 (the "Amendment"), is
between Smart Online, Inc., a Delaware corporation located at the physical
address of 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, XX 00000, and a mailing
notice address of XX Xxx 00000, Xxxxxxxx Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
("SMART ONLINE") and Smart IL , Ltd. located at 25 Xxxxxxxx Xxxxx St., Ramat
Gan, Israel ("Participant") and Participant and SMART ONLINE are sometimes
referred to herein as "Party" or "Parties." Participant and SMART ONLINE agree
as follows:
RECITALS
WHEREAS, SMART ONLINE owns and operates web sites devoted to providing products
and services for small and medium-sized businesses ("SMART ONLINE Site"),
currently located at XXXX://XXX.XXXXXXXXXXX.XXX and
WHEREAS, SMART ONLINE partners with third parties to host and develop
third-party co-branded and privately-labeled web sites, which are devoted to
providing products and services to small and medium-sized businesses, and, when
applicable and allowed, SMART ONLINE also offers the products and services which
appear on the SMART ONLINE Site to the third-party co-branded or
privately-labeled web sites; and
WHEREAS, SMART ONLINE desires to offer to users of the SMART ONLINE Site and
users of the third-party co-branded or privately-labeled web sites
(collectively, the "Users") information about other products and services that
may be of interest to the Users; and
WHEREAS, Participant provides or intends to provide Internet-Based products that
function: (i) to add value to the online experience of a small and medium
business ("SME") end user and/or (ii) to sell Instant Messenger Engine products
and/or services as described in Exhibit A; and
WHEREAS, SMART ONLINE and Participant wish to work cooperatively to make the
application and/or Participant's products and/or services available to Users of
the SMART ONLINE Site and to Users of the third-party privately-labeled web
sites, subject to the approval of such partners. (For example, certain
syndicated partners may offer a competitive product, therefore not needing
Participant's product.) The methods of making the product and/or service
promotional information available to the Users visiting this site is defined in
Exhibit B (also referred to as the "Integration Program"); and
WHEREAS, Participant desires to promote its products and/or services listed in
Exhibit A using the Integration that SMART ONLINE has offered to Participant
(the "Integration Program") and Participant desires to purchase participation in
the Integration Program with an integration cost and with an ongoing revenue
sharing arrangement with SMART ONLINE, as described in Section 3 of this
Agreement;
NOW, THEREFORE, Participant and SMART ONLINE agree as follows:
1. INTEGRATION PROGRAM AND RELATED MATTERS.
(a) Upon the Effective Date of this Agreement and subject to the terms
and conditions of this Agreement, SMART ONLINE shall implement the Integration
Program for Participant's products and/or services listed in Exhibit A. SMART
ONLINE and Participant shall work cooperatively and in good faith to: (1)
mutually determine the strategic locations for Integration, as described in this
Agreement; (2) mutually determine a strategic offer or marketing strategy to
prospective users; (3) implement, including necessary development, the
Integration.
(b) Effective upon the service commencement date stated in Exhibit B
attached hereto and incorporated by reference ("Service Commencement Date") and
subject to the terms and conditions of this Agreement, SMART ONLINE shall
provide the Integration Program, as described in this Agreement, for certain of
Participant's products and/or services listed in Exhibit A.
(c) SMART ONLINE may, from time to time, revise, enhance, update and/or
otherwise modify the functionality and delivered capability of the SMART ONLINE
Sites in a manner which SMART ONLINE, in its discretion, deems appropriate. Such
changes, if any, will not effect the delivery mechanism of Participants
products.
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(d) Participant may, from time to time, modify, add, or update its
products or services listed in Exhibit A and offered through Integration on the
Smart Online Sites. Participant will notify SMART ONLINE of such changes, and
will work cooperatively, assisting in strategically determining location and
marketing, as well as with any necessary development efforts, to implement
Integration, as described in this Agreement. Any changes, as described above,
which constitute a conflict with Smart Online's business strategy for delivery
of integration, applications or content to its or its syndicated partners' end
users will be subject to Smart Online's written approval, not to be unreasonably
withheld.
(e) Participant shall provide to Smart Online up to 4 programmers for a
period of six (6) months as of August 30, 2002 dedicated to this Integration.
Participant will be responsible for all associated costs for these programmers
with the exception of airline tickets and hotel room and board incurred for the
initial training in the US, which will be for a period of up to 3 weeks which
will be paid by Smart Online.
2. STRATEGIC COOPERATION AND RELATED MATTERS.
(a) SMART ONLINE shall be responsible for all non-Participant services
and for Levels One and Two support of customized and integrated Participant
services, related to customer relationship management ("CRM") support during the
term of this Agreement. Participant is responsible for Level Three (3) support
of customized and integrated Participant Services. Xxxxx 0 support includes:
(i) Issues that can not be resolved by SMART ONLINE CRM staff;
and
(ii) Issues related to application code or any modifications
to such code.
(b) SMART ONLINE shall include Participant in all public relations
activities initiated by SMART ONLINE that relate to the association between
SMART ONLINE and Participant as expressed by this Agreement. SMART ONLINE shall
provide Participant reasonable advance notice of such public relations events
and activities and seek Participant's input and participation in such events and
public relations communications. See Exhibit C Marketing Strategy for examples
of efforts by Smart Online and certain of its syndicated partners.
(c) SMART ONLINE will provide, as reasonable and necessary,
co-development services for implementation of the Integration Program (as
described in Exhibit B) for Participant. Participant will aid SMART ONLINE in
development efforts, as reasonable and necessary, in order to facilitate the
successful implementation of the Integration Program. SMART ONLINE shall at its
sole discretion have the right to outsource to third-parties the provision of
any of these services as long as the level of service provided by such
third-parties is not significantly less than when SMART ONLINE provided such
services and that SMART ONLINE bears all responsibility and costs related to
such services.
(d) Nothing in this Agreement will be deemed to create any restrictions
or limitations of any kind upon Participant's business activities, including but
not limited to entering into transactions similar to those contemplated by this
Agreement with any and all third parties. During the term of this agreement
Participant will not enter into any agreement in the Geographical Licensing Area
defined in Exhibit B, involving Participant's products as described in Exhibit A
with any third party that SMART ONLINE has a contract, or any type of business
relationship directly involving the Participant, a list of which will be
provided to the Participant.
(e) Participant is permitted to: (i) identify SMART ONLINE as a
marketing partner of Participant; (ii) in accordance with SMART ONLINE's
then-current guidelines or as otherwise permitted by SMART ONLINE in writing,
use SMART ONLINE's name and permitted trademarks in connection with proposals to
prospective customers of Participant; (iii) hyperlink from Participant's web
site to SMART ONLINE's home page; (iv) display SMART ONLINE's name, trademarks
and logos on Participant's web site as permitted by SMART ONLINE in writing; and
(v) otherwise refer to SMART ONLINE and its trademarks, logos and products in
print and/or electronic form for promotional, marketing and/or reference
purposes as permitted by SMART ONLINE in writing.
(f) SMART ONLINE agrees to use commercially reasonable efforts to
promote Participant as a selected marketing partner to all prospective users,
which efforts will include promotions at SMART ONLINE's expense by means of
email, newsletters, catalogs, seminars and/or other marketing vehicles deemed
suitable by SMART ONLINE in its sole discretion.
(g) SMART ONLINE is permitted to: (i) identify Participant as a
marketing partner of SMART ONLINE; (ii) in accordance with Participant's then
current guidelines or as otherwise permitted by Participant in writing, use
Participant's name and permitted trademarks in connection with proposals to
prospective SMART ONLINE customers; (iii) hyperlink from SMART ONLINE'S web site
to Participant's home page; (iv) display Participant's
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name, trademarks and logos on SMART ONLINE'S web site as permitted by
Participant in writing; and (v) otherwise refer to Participant and its
trademarks, logos and products in print and/or electronic form for promotional,
marketing and/or reference purposes as permitted by Participant in writing.
SMART ONLINE may provide its customers, analysts and financing sources with
Participant's name and contact information as a reference for SMART ONLINE and
participant will promptly respond to inquiries from such third parties, provided
that Participant is willing to provide a favorable reference for SMART ONLINE.
SMART ONLINE may use, copy and distribute Participant's logos and related
trademarks in connection with SMART ONLINE-authored case studies and related
materials which relate to Participant's status as a SMART ONLINE partner,
subject to Participant approval and guidelines.
(h) It is further agreed that the Parties may within thirty (30) days
of the Service Commencement Date, issue a joint press release in mutually
acceptable form announcing their entering into this Agreement.
(i) It is agreed that SMART ONLINE will provide the following services
on its expense during the term of this agreement:
o Appropriate office space within the current SMART ONLINE offices in
North Carolina;
o Complete hosting facility/services of the Participant application
described in Exhibit A;
o All required hardware for hosting the Participant application described
in Exhibit A;
o All required software and licensing required for hosting the
Participant application described in Exhibit A;
o All required storage for storing customer's information and data;
o Development and integration of eCommerce application for transaction
charges;
o Development and integration of Participant products according to
Exhibit B;
o Appropriate telephone number for CRM activities.
o Development and integration of Participant help files within SMART
ONLINE platform.
(j) The Parties' respective responsibilities shall be as defined in
Exhibits A, B and C.
3. PRICE, PAYMENT AND RELATED MATTERS.
It is understood that this project will require a major investment between the
parties. This will be through an initial investment for the immediate need for
resources, equipment and software by Participant, as well as continuous future
investments by Smart Online to scale the infrastructure and required
platform/user needs. It is further understood that Participant's maximum
investment to this co-development will be USD $ 800,000, which have been already
invested in full as of the effective date of this Agreement. Smart Online's
investment will be greater than the Participant's for initial and future
planning of this project.
Smart Online will refund Participant for any co-development investment payments
made by the Participant and Participant's direct expenses in respect to this
Agreement not to exceed $50,000 ("Expenses") if Smart Online cannot deliver the
product within 30 days of the Service Commencement Date.
(b) During the term of this Agreement, the Parties will share Revenue
as set forth below:
(i) Participant shall receive a net payment of $20/per each Subscriber
per each year, or part of a year a Subscriber is active. Said sum will
be in force for a period of 24 months commencing immediately thereafter
Smart Online starts to charge the Subscribers (Service Commencement
Date), thereafter Participant shall receive net payment of $15/per each
subscriber per each year or part of a year the Subscriber is active
(for as long as the Agreement is in effect).
For the purpose of this section a "Subscriber" shall mean any Smart
Online subscriber (which is a single-end user that registers after the Service
Commencement Date with Smart Online and/or its syndicated partners platform and
provides credit card information regardless of any promotional code and (i) has
subscribed for the Participants Products (as defined in Exhibit A) within Smart
Online's syndicated platform; or (ii) has subscribed for other Smart Online
products which are integrated or bundled with the Participants Products,
including third parties' products integrated with Participant's Products; or
(iii) has subscribed to any conference center, video mail (such as Webex), or
other web conference or peer to peer based conference product (excluding PDA
Synchronization and WAP delivery systems) developed by Smart Online and
integrated into Smart Online's platform. Smart Online shall make an effort to
promote the IME and bundle/integrate the IME into other Smart Online products.
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OR
(ii) - Revenue generated from sale of any stand-alone product (as
described in Exhibit A) to any party that was initially introduced by SMART
ONLINE to be shared as follows:
- 50% to Participant from gross revenue
- 50% to Smart Online from gross revenue
SMART ONLINE will notify Participant in writing of such approach, and
of such sales.
Once Participant has earned and been paid $1,610,000 (one million six hundred
and ten thousand US Dollars) in revenue as described above within Sections 3
(b)(i) or (ii) ("Participant's Revenue Share"), no further revenue sharing shall
take place between the Parties.
(c )Smart Online shall calculate revenue share quarterly and pay
Participant based on the greater amount earned from Sections 3(b)(i) or 3(b)(ii)
during each calendar quarter.
(d) All payments due under Section 3(b) shall be paid by SMART ONLINE
quarterly, by the tenth day after of the end of each calendar quarter, beginning
the first calendar quarter after the Service Commencement Date, and without
withholding any tax. All payments will be accompanied by a statement of the
amounts due Participant, certified by SMART ONLINE's auditor or accountant,
together with the basis upon which such amounts were calculated. Participant
may, through an independent auditor, review SMART ONLINE's printed and
electronic records relating to payments due under Section 3(b). Audits may be
made by an independent auditor approved by the Parties not more than quarterly
at any place where the above records are kept during normal business hours and
upon prior notice. If an audit shows an underpayment, SMART ONLINE will promptly
pay Participant the amounts due. If an underpayment is five percent (5%) or more
of the amount due for that quarter, Participant will also receive its reasonable
audit expenses not to exceed $5000.
4. PROPRIETARY RIGHTS AND RELATED MATTERS.
(A) TITLE. All copyrights and other intellectual property rights
existing prior to the Effective Date, or subsequently acquired or developed
independently by a party, shall remain the property of such party. Neither party
will gain, by virtue of this Agreement, any rights of ownership to copyrights,
patents, trade secrets, trademarks, or any other proprietary rights owned by the
other party. Title to and ownership of all copies of either Parties' products,
software, graphics, designs, methods, architecture and other tangible
intellectual property-based assets of any kind (collectively "I.P.") whether in
machine readable, printed, or other form and including without limitation all
revisions, enhancements, technical know-how, patents, patent rights, copyrights,
trademarks, service marks, moral rights and trade secrets pertaining to the I.P.
are and will remain the sole property of the respective Party. Unless so stated
in this Agreement, neither Party will have any ownership rights of any kind in
or to any I.P. of the other Party. Neither party may alter or remove any
copyright, patent, trademark and/or other intellectual property notices from the
other Party's I.P.
(b) OWNERSHIP. Each Party represents and warrants to the other Party
that , to the best of its knowledge, it owns and/or has all requisite rights in
and to any software necessary to perform its obligations under this Agreement.
Each Party represents and warrants to the other Party that it owns and/or has
any requisite use rights in and to any Content necessary for the Party to
lawfully perform all of its obligations under this Agreement. Neither Party will
transmit or route to or through the other Party's servers and other facilities
any Content that is in whole or in part unlawful, libelous, defamatory, or
obscene. For so long as this Agreement is in effect, each Party grants to the
other Party a worldwide, non-transferable, revocable, royalty-free and
non-exclusive license to use the other Party's Content or I.P. solely for all
reasonable and necessary purposes required for the Party to perform all of its
obligations under this Agreement. A Party may not use, transfer or otherwise
dispose of any of the other Party's Content except as permitted in this
Agreement. As used in this Agreement, "Content" is defined as any electronic
content data, software, scripts, images, graphics, audio, video, text or other
matter originating or transmitted from any web site owned or operated by a Party
and routed to, passed through and/or stored on any of the other Party's servers
and other facilities.
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(c ) Smart Online may choose, at its sole discretion either to develop
or to integrate a third party conference center, video mail (such as Webex etc.)
or other web-conference or peer-to-peer web-based conference product (excluding
PDA Synchronization and WAP delivery systems). .
Smart Online shall issue or cause to transfer 80,000 (eighty thousand) shares of
Common Stock par nominal value $0.001 of Smart Online, free and clear of any
debt or third party rights, (the "Shares"), which represent approximately 1% of
the total outstanding stock of Smart Online, as of the effective date of this
Agreement , to Xxxxx Xxxxxxxx, upon the occurrence of the earlier of the
following: (i) Smart Online developing or integrating a third party conference
center, video mail (such as Webex etc.) or other web-conference or peer-to-peer
web-based conference product (excluding PDA Synchronization and WAP delivery
systems); or
(ii) if after completion of conducting a proof of concept with Vanenburg, Smart
Online or any of its affiliates enters into a joint venture, partnership, share
acquisition, merger transaction or other kind of transaction, pursuant to which
at least $2.5 million (in cash or equivalent value of equitable securities) is
transferred to Smart Online or any of its affiliates or shareholders, or is
invested or otherwise infused or transferred into or in favor of this joint
venture, partnership or cooperation; or at least three percent (3%) of the
equity (in shares, warrants or other form of equitable security) of Smart Online
is transferred or issued to Vanenburg or any of its affiliates.
(d) The following shall apply with respect to the Shares Xxxxx Xxxxxxxx
shall be entitled to receive in accordace with Section 4(c ) above: (I) Xxxxx
Xxxxxxxx shall not be required to make any payments with respect to the issuance
of the Shares; (ii) in the event of a split or reverse split of Smart Online
stock, Smart Online will grant Xxxxx Xxxxxxxx the equivalent number of Shares so
that the number of Shares represented is not effected by such action.
(e) During the term of this Agreement and until Participant has been
paid the Participant Revenue Share as provided in Section 3(b) above, Smart
Online shall have a free of charge, non-exclusive, non transferable license to
use the IME.
Once Participant has been paid the Participant Revenue Share as
provided in Section 3(b) above, Participant shall grant Smart Online a
perpetual, free of charge, non-exclusive and transferable license to use, make
use, and sublicense the Instant Messenger Engine ("IME"). Upon the occurrence of
the above, each party shall have the right to license the IME to any third party
without the obligation of sharing the revenue earned with that third party with
each other. If Smart Online sells the majority of its stock to a third party
(other than an affiliate) and such sale is conditional upon the transfer of the
Participant's right to the IME to the purchasing entity, the sale of the
Participant's ownership right to the IME shall be then discussed and negotiated
in good faith.
(f) USERS' INFORMATION DATABASE. Smart Online will provide Participant,
without additional charge, all users' profile database information collected in
conjunction with the use of Participant's products, in a hardcopy or excel
download.
5. LIMITATIONS OF WARRANTY AND LIABILITY. EXCEPT AS SET FORTH IN THIS AGREEMENT,
ALL EXPRESS AND/OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF
ANY RIGHTS, ARE EXPRESSLY EXCLUDED. EXCEPT AS SET FORTH IN THIS AGREEMENT,
PRODUCTS AND SERVICES DELIVERED, LICENSED AND/OR OTHERWISE PROVIDED UNDER THIS
AGREEMENT ARE DELIVERED IN "AS IS" CONDITION WITHOUT ANY WARRANTIES OF ANY KIND
THAT THEY WILL BE ERROR-FREE OR WILL OPERATE CONTINUOUSLY. NEITHER PARTY WILL BE
LIABLE OR OBLIGATED IN ANY MANNER FOR ANY CONSEQUENTIAL, PUNITIVE OR INDIRECT
DAMAGES OR LOST PROFITS EVEN IF THE RESPONSIBLE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, UNLESS THE OTHER PARTY HAS COMMITTED FRAUD OR SOME
OTHER INTENTIONAL WRONGDOING. IN NO EVENT WILL EITHER PARTY BE LIABLE OR
OBLIGATED IN ANY MANNER TO THE OTHER PARTY FOR ANY AMOUNT IN EXCESS OF THE
PAYMENTS MADE BY THAT PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION ANY AND ALL CONTRACT AND/OR TORT LIABILITY, UNLESS THE OTHER
PARTY HAS COMMITTED FRAUD OR SOME OTHER INTENTIONAL WRONGDOING. THIS SECTION
ALLOCATES THE RISKS BETWEEN THE PARTIES, AND IS AN ESSENTIAL ELEMENT OF THE
BARGAIN BETWEEN THE PARTIES AND WILL BE EFFECTIVE NOTWITHSTANDING THE FAILURE OF
PURPOSE OF ANY ESSENTIAL AND/OR OTHER REMEDIES HEREIN.
6. INDEMNIFICATION.
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(a) INDEMNITY OF PARTICIPANT. SMART ONLINE will indemnify and hold
harmless Participant from all damages, liabilities, costs, expenses, and
reasonable attorney's fees paid and/or incurred by Participant as a result of
any dispute, claim, suit, and/or judgment: (i) for any breach of any warranty
arising directly out of SMART ONLINE's performance of its obligations under this
Agreement, (ii) for any unlawful, wrongful and/or legally actionable acts or
omissions of SMART ONLINE and its employees and agents, and (iii) for all claims
that the Smart Online IP, used within the scope of this Agreement, infringes any
U.S. patent issued as of the Effective Date, any copyright, any U.S. registered
trademark, or any trade secret, of any third party.
(b) INDEMNITY OF SMART ONLINE. Participant will indemnify and hold
harmless SMART ONLINE from all damages, liabilities, costs, expenses, and
reasonable attorney's fees paid and/or incurred by SMART ONLINE as a result of
any dispute, claim, suit, and/or judgment: (i) for any breach of any warranty
arising directly out of Participant's performance of its obligations under this
Agreement, (ii) for any unlawful, wrongful and/or legally actionable acts or
omissions of Participant and its employees and agents, and (iii) for all claims
that the Participant IP, used within the scope of this Agreement, knowingly and
willfully infringes any U.S. patent issued as of the Effective Date, any
copyright, any U.S. registered trademark, or any trade secret, of any third
party. SMART ONLINE acknowledges that it is aware that an application for the
registration of a patent relating to the IP made available by the Participant
under this Agreement has not yet been filed, and therefore the Participant
cannot assure that the IP has not been independently developed by any third
party who has already applied or registered a patent.
7. CONFIDENTIALITY. For so long as this Agreement is in effect and for three (3)
years after its expiration or termination, the a Party receiving Confidential
Information ("Receiving Party") will consider as confidential any nonpublic
information relating to Smart Online or Participant products and/or services,
source code, trade secrets, finances, marketing plans, business opportunities,
personnel, research, development or know-how, and technologies and similar
information, whether disclosed orally, in writing, or in other documents derived
or developed in any way therefrom, except such information as the parties agree
in writing is not confidential or is already known prior to disclosure or in the
public domain. Confidential Information may be used by the Receiving Party only
in furtherance of the purposes of this Agreement and may not be delivered or
disclosed, in whole or in part, to third parties other than their legal and
financial advisers. It is further agreed that the economic terms of this
Agreement are Confidential Information.
8. TERM AND TERMINATION.
(a) This Agreement will commence on the Effective Date and will
continue in effect for a period of twenty- four (24) months from the Service
Commencement Date ("Initial Term"). After the expiration of the Initial Term,
this Agreement will be automatically renewed for successive twelve (12) month
terms ("renewal Term(s)") unless either Party notified the other Party in
writing at least thirty (30) days prior to the expiration of the then-current
term of its intention to not renew this Agreement.
(b) Either Party may terminate this Agreement for any reason upon 120
days prior written notice to the other Party with or without cause.
Notwithstanding the foregoing, neither Party shall have the right to terminate
this Agreement, other than upon the occurrence of a material breach as provided
in Section 8(c ), prior to the Participant having received the Participant
Revenue Share, as provided in Section 3(b).
If Participant elects to terminate this Agreement as a result of Smart
Online performing a material breach, as described in Section 8(c), prior to
Participant recovering the entire Participant Revenue Share , then Smart Online
shall pay Participant the remaining balance of the Participant Revenue Share.
Smart Online shall make such payment to Participant within 30 days of
termination clause of the Agreement.
(c) Either Party may terminate this Agreement upon: (i) failure of the
other Party to comply with any material provision of this Agreement, including
without limitation all provisions of the "Payment Terms" section of the
Schedule, if not remedied within thirty (30) days after written notice of
default is sent to the defaulting Party; (ii) filing by the other Party of a
voluntary petition under the United States Bankruptcy Act or any similar foreign
law; (iii) filing of an involuntary petition against the other Party under the
United States Bankruptcy Act or any similar foreign law, if not dismissed within
sixty (60) days; or (iv) insolvency of (combined with the defaulting Party's
inability to perform its obligations hereunder) or appointment of a receiver for
the other Party. All provisions of Sections 2(d), 3, 4, 5, 6, 7 (for the period
stated in that Section), and 9 will survive any expiration or termination of
this Agreement.
9. GENERAL PROVISIONS.
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(a) No joint venture or employment is created between Participant and
SMART ONLINE by this Agreement. The Parties are for all purposes independent
contractors. Neither Party has any authority, express or implied, to create any
obligation or responsibility on behalf of the other Party.
(b) No waiver, amendment, or modification of any provision of this
Agreement will be effective unless in writing and signed by the Party against
whom its enforcement is sought. No failure or delay by either Party in
exercising any right or remedy under this Agreement, except as provided herein,
will operate as a waiver.
(c) If any provision of this Agreement is held by a court of competent
jurisdiction to be unenforceable, unlawful, or invalid, such provision will be
deemed modified to eliminate the invalid portion and as so modified will be
deemed a part of this Agreement.
(d) This Agreement is the complete and exclusive agreement between the
parties with regard to the subject matter hereof and supersedes the prior
discussions, negotiations and memoranda related hereto. No modification of or
amendment to this Agreement, nor any waiver of any rights under this Agreement,
shall be effective unless in writing signed by the party against whom it is to
be enforced. Nothing express or implied in this Agreement is intended to confer,
nor shall anything herein confer, upon any person other than the parties and the
respective successors or permitted assigns of the parties, any rights, remedies,
obligations or liabilities whatsoever.
(e) Each person signing this Agreement represents that he or she has
requisite authority to do so.
(f) All notices, demands or consents given under this Agreement will be
in writing and will be deemed given when delivered personally, or five days
after deposit in the United States mail (certified or registered mail), or three
days after being sent by overnight courier, to the receiving Party at the
addresses in this Agreement or at such other address given by either Party to
the other in writing.
(h) This Agreement may be simultaneously executed in one or more
counterparts, each of which shall be deemed to be an original of this Agreement
and all of which shall constitute one and the same instrument.
(i) This Agreement shall be interpreted, construed and enforced in all
respects in accordance with the laws of the State of North Carolina without
regard to any conflicts of law rules. Further, the Parties consent to the
jurisdiction and venue of the sate and federal courts located in Wake County,
North Carolina.
This Agreement is entered into as of the Effective Date.
SMART REVENUE EUROPE, LTD.: SMART ONLINE, INC.:
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxxx Xxxxx
----------------------------- -------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxxx Xxxxxxx Xxxxx
Title: CEO Title: CEO
Address: _______________________________ 0000 Xxxxxxxx Xxxxxxx, 0xx Xxxxx
_______________________________________ Xxxxxx, XX 00000
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EXHIBIT A
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DESCRIPTION OF APPLICATION AND/OR PRODUCTS / SERVICES OF
INTEGRATION PROGRAM PARTICIPANT
1) INSTANT MESSENGER ENGINE (IME)
The Instant Messenger Engine is a web-native application designed to allow users
to communicate online, in real-time, through the Internet using instant
messaging protocols. Participant will deliver the prototype application as a
100% web based solution either combined with a third-party solution and/or
independently as a stand-alone application via the Smart Online syndicated
platform without the need of download and/or uploading any files for the users.
Participant will provide the application as a solution ready for integration to
the Smart Online syndicated platform. All tests will be performed by Smart
Online and Participant prior to the Service Commencement Date. Participant will
provide the appropriate human resources to assist Smart Online with the
completion of the instant messenger engine and any required integration of
Participant's product to other third parties products, such human resources may
be provided in the best practical way mutually agreed by the parties.
The Profile Database will be kept through a central server location by Smart
Online at it's hosting facilities for update interface, security and user
account access.
SMART ONLINE RESPONSIBILITIES
1) PROVIDE LEGAL WORK PERMIT FOR THE HUMAN RESOURCES REQUIRED TO WORK IN
THE U.S.
2) MIS/HOSTING FACILITIES, HARDWARE
3) RECOMMENDATION AND PARTICIPATION FOR USER INTERFACE
4) BUILD A PROFILE DATABASE/HARDWARE AND SOFTWARE
5) ASSIST WITH DOCUMENTATION
6) REDUNDANT AND FAILOVER HOSTING
7) RESOURCES TO PROVIDE INTEGRATION OF SMART ONLINE'S APPLICATIONS AND/OR
THIRD PARTIES SOFTWARE
8) ALL INTEGRATION RESOURCES AS DEFINED IN EXHIBIT B
10) INTEGRATION OF IM PRODUCT INTO SMART ONLINE PLATFORM
11) SECURITY AND USER ACCESS MANAGEMENT
12) SUBSCRIPTION ECOMMERCE BILLING
13) INFRASTRUCTURE (HARDWARE, SOFTWARE, HOSTING, MAINTENANCE)
14) METHODOLOGY
15) PROCESS
16) PROJECT MANAGEMENT
17) PROVIDE ASSISTANCE TO WRITE, APPLY FOR, REGISTER AND MAINTAIN IM
SERVICE MARKS, TRADEMARKS, PATENTS AND COPYRIGHTS IN THE GEOGRAPHICAL
TERRITORY, UNDER THE NAME OF THE PARTICIPANT AT PARTICIPANT'S EXPENSE,
SUBJECT TO PARTICIPANT'S PRIOR APPROVAL.
CONTINUED ON NEXT PAGE
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EXHIBIT A
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(CONTINUED)
PARTICIPANT'S RESPONSIBILITIES:
1) MAKE AVAILABLE TO SMART ONLINE THE APPROPRIATE HUMAN RESOURCES FOR FULL
COMPLETION OF INSTANT MESSENGER ENGINE'S INTRODUCTION TO THE US MARKET
2) PROVIDE A PROTOTYPE INSTANT MESSENGER PRODUCT TO SMART ONLINE FOR THE
PURPOSE OF THIS PARTNERSHIP
3) ASSIST SMART ONLINE WITH THE NECESSARY DOCUMENTATION AND PROGRAM NOTES
4) PROVIDE TO SMART ONLINE ALL PROGRAM CODING AND KNOW-HOW IN ENGLISH
5) DEDICATED INDIVIDUALS TO WORK WITH SMART ONLINE'S STAFF
6) APPLY FOR ALL APPROPRIATE SERVICE MARKS, TRADEMARKS, PATENTS AND
COPYRIGHTS IN THE GEOGRAPHICAL TERRITORY AS NECESSARY TO PROTECT THE
IME PRODUCT
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EXHIBIT B
TO INTEGRATION PROGRAM AGREEMENT:
TYPICAL INTEGRATION METHODS
The methods listed below shall be used to strategically and as appropriate, in
Smart Online's sole discretion, promote a provider's content, products and/or
services to users of a web site.
Upon and after the launch, Smart Online may cause information about the
provider's content, products and/or services to be strategically delivered to
the user, as appropriate, using the methods below, when the user is viewing a
portion of the site as reasonably related to the provider's content, products
and/or services.
SERVICE COMMENCEMENT DATE: NO LATER THAN WITHIN 30 DAYS OF ACCEPTANCE OF UAT
(USER ACCEPTANCE TESTING) RESULTS FOR PARTICIPANT'S INSTANT MESSENGER ENGINE.
GEOGRAPHIC LICENSING AREA: XXXXXX XXXXXX, XXXXXXXXXXX XX XXXXXX XXXXXX, XXX
XXXXXX AT SMART ONLINE'S CHOICE
------------------------------- ------------------------------------------------
TYPE OF INTEGRATION METHODOLOGY
------------------------------- ------------------------------------------------
My Office Integration of Partcipants offerings
within "My Office" bundled with email package
and/or other office products within the
syndicated platform.
------------------------------- ------------------------------------------------
Contextual Integration Integration of Participants
offerings within certain existing SMART ONLINE
applications to enhance the visibility of the
participants' products/services during the
users' work session.
------------------------------- ------------------------------------------------
Solutions Integration Integration of Participants
offerings within the appropriate solutions
offerings of SMART ONLINE and/or its third-party
syndicated partners.
------------------------------- ------------------------------------------------
Wizard (Solution Finder) Application that qualifies the
user's needs for specific SMART ONLINE
applications and/or participants' products and
services.
------------------------------- ------------------------------------------------
Private-Label and/or Participants' offerings would be delivered with
co-branded a and/or private-label look and feel subject
Co-Branded Syndicated Site to the mutual agreement with each syndicated
partner.
------------------------------- ------------------------------------------------
Visuals Short, non-obtrusive, display-only,
informational message and visual prompts,
potentially allowing the user to take action to
further investigate the subject matter within
the SMART ONLINE syndicated partners' and/or
participants' platform.
------------------------------- ------------------------------------------------
Permission Marketing Subject to approval by Smart Online,
the ability to communicate via email, within a
Business Resource Site's email communication
facility, to opt-in users for up-sale
opportunities of the participants.
------------------------------- ------------------------------------------------
Features and Benefits Detailed description of the participants
products and/or services within certain
designated marketing page(s) of SMART
ONLINE's syndicated partners' platform to
educate users to enhance their decision
making process.
------------------------------- ------------------------------------------------
Question and Answer Creation of frequently and commonly
asked questions within certain designated
marketing page(s) of SMART ONLINE's syndicated
partners' platform with answers to assist the
users in their decision making process.
------------------------------- ------------------------------------------------
Pricing Creation of tabular comparisons of products
and/or services similar to participants', where
possible, within certain designated marketing
page(s) of SMART ONLINE's syndicated partners'
platform with answers to assist the users in
their decision making process.
------------------------------- ------------------------------------------------
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------------------------------- ------------------------------------------------
TYPE OF INTEGRATION METHODOLOGY
------------------------------- ------------------------------------------------
Overview and Testimonials Creation of detailed overview
of participants' products and/or services,
including customer testimonials, where
applicable, within certain designated marketing
page(s) of SMART ONLINE's syndicated partners'
platform with answers to assist the users in
their decision making process.
------------------------------- ------------------------------------------------
Xxxxxxx Xxxx Integration of Participants offerings
within a customized xxxxxxx xxxx for quick
access to participants' products and services.
------------------------------- ------------------------------------------------
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EXHIBIT C
---------
TO INTEGRATION PROGRAM AGREEMENT:
MARKETING STRATEGY
ACTIVE SMART ONLINE MARKETING:
o Developing a placement strategy to best highlight partner
products/services throughout all applicable platforms where the user
requires it/them the most.
o Distributing a targeted press release upon launch to analyst and
current business network.
o Conducting email campaigns for all registered users on each applicable
platform
o Highlighting new online services to partner's marketing and
communications department
o Co-developing sales sheets for use by partner sales force
o Providing marketing materials for inclusion in partner's communication
mechanisms (i.e. news letters,
training materials, email campaigns, intranet postings) where possible.
ACTIVE PARTNER MARKETING WITH REGARD TO THE RESOURCE CENTER/ENTIRE PLATFORM (MAY
VARY BASED UPON EACH SYNDICATED PARTNER):
o Public relations activities
o Internal communication to sales and operations managers and staff
dealing with their small business
customer base
o Web cast training for sales staff
o Web cast with actual customer base
o Targeted direct mail
o Bank statement message inserts, where applicable
o Customer and sales force testimonials
o Sales force training and workshops for sales scripting in order to
solicit new and existing customers
o Branch/store/distribution center on-site advertising/slogans/banners
o Periodic distribution of newsletters to premium customers
o Multiple bundling integration of Smart Online and syndicated partner
products/services to other divisions besides small business
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