EXHIBIT 10.1
[SLM LOGO]
SLM HOLDINGS, INC.
SUBSCRIBER AGREEMENT
AGREEMENT made this _____ day of __________, 200__ between SLM Holdings,
Inc. ("SLM"), a New York corporation having offices located at 000 Xxxx Xxxxxx
Xxxx. Xxxxx X Xxxx Xxxx, Xxx Xxxx 00000 and ________________________ ("the
subscriber") with offices at _________________
WHEREAS, SLM owns and operates its proprietary "Broker's
E-Vantage" sales lead management system and related software and documentation
accessible by its customers via the Internet (the "System");
WHEREAS, Subscriber desires to contract with SLM, and SLM
desires to provide Subscriber with the use of and access to the System upon the
terms and conditions set forth herein;
NOW THEREFORE, the parties agree as follows:
1. SERVICES TO BE PROVIDED. Subject to the terms and conditions set
forth herein, SLM agrees to provide Subscriber with a non-exclusive limited
license to use and access the System. The System presently provides the
functions described on Schedule "A" annexed hereto and may be modified from time
to time by SLM, at SLM's sole and exclusive discretion.
2. CHARGES AND TERMS OF PAYMENT. In consideration of the use of and
access to the System, Subscriber agrees to pay SLM the license fees and charges
as set forth on Schedule B annexed hereto. In addition, Subscriber shall be
responsible for payment of all Federal, state, and local taxes, if any, other
than taxes assessed against SLM's income, and for telecommunication and
connectivity charges relating to Subscriber's use and access of the System, and
related equipment at Subscriber's premises. Invoices for Subscriber's use of and
access to the System shall be calculated in accordance with the scheduled
charges and shall be rendered monthly. Payment by Subscriber of applicable fees
and charges will be due upon issuance of the invoice for such fees and charges.
Additional fees, charges and other terms may apply in connection with the
provision of new products or services offered by SLM, which shall be mutually
agreed upon by the parties hereto.
3. SUBSCRIBER DATA. In connection with Subscriber's use of the
System, the parties acknowledge that SLM will collect from Subscriber certain
data and information and maintain that data on its database (the "Data").
SUBJECT TO SECTION 11(D) BELOW, ALL DATA AND RIGHTS THEREIN SHALL BE THE
EXCLUSIVE PROPERTY OF SUBSCRIBER.
4. ACCOUNT NUMBERS, USER I.D. CODES AND PASSWORDS. Subscriber will
be assigned an account number to be used for billing purposes. User ID codes and
associated passwords will be assigned to Subscriber and/or Subscriber's
employees who Subscriber notifies SLM in writing are authorized to access the
System. Subscriber and its employees may gain on-line access, via secure
point-to-point connections, to the System by utilizing their User ID codes and
passwords. If an authorized user ("User")
becomes ineligible to access the system by virtue of the termination of such
User's employment or for any other reason, Subscriber shall (i) promptly notify
SLM of such termination; and (ii) terminate such employee's User ID code and
password. SLM shall not be responsible for access to and/or reports ordered
utilizing User ID codes and passwords by unauthorized Users. User ID codes and
passwords may be changed in the sole discretion of SLM at any time.
5. CERTIFICATION BY SUBSCRIBER. Subscriber expressly agrees and
acknowledges the following:
(a) In using any data, information, content or reports
received by it as the result of the use of and access to the System, Subscriber
expressly assumes all risks, known and unknown, relating thereto.
(b) Subscriber will utilize all data, information, content
and reports provided by SLM hereunder solely in connection with its lawful
operations (including, without limitation, e-mail usage) and will not request or
use such information for any purpose which may be prohibited by applicable law,
rule or regulation. All such information shall be utilized and maintained by
Subscriber in such manner as may be required by applicable laws, rules or
regulations.
(c) The System is designed to operate in conjunction with
the hardware and connectivity specifications designated by SLM, which Subscriber
acknowledges it is solely responsible to procure and maintain. The terminals or
other equipment used to access the System will be operated only by authorized
employees of Subscriber who have received sufficient training in the use and
operation thereof and who are aware of the limitations and other provisions
contained in this Agreement. Subscriber agrees to (i) take all reasonable
measures to prevent unauthorized use of such terminal(s) or equipment and access
to the System by any person other than authorized and designated operators, and
(ii) to establish, and enforce policies whereby its employees are forbidden to
access the System except as provided for herein.
(D) SLM SHALL, IN ITS FULLEST CAPACITY PROTECT ANY AND ALL
PROPRIETARY DATA TO BE "HOUSED" ON THE SYSTEM BY THE SUBSCRIBER. SLM SHALL NOT
AT ANY TIME HAVE ACCESS TO ANY PROPRIETARY SUBSCRIBER DATA UNLESS OTHERWISE
SPECIFICALLY DIRECTED TO AFFECT THAT DATA BY THE SUBSCRIBER'S DELEGATED
ADMINISTRATOR OR OFFICERS OF THE SUBSCRIBER. THE SUBSCRIBER ACKNOWLEDGES THAT ON
OCCASION IT WILL BE NECESSARY FOR SLM TO PERFORM VARIOUS UPGRADES OR MAINTENANCE
TO THE OVERALL SLM GENERAL SYSTEMS, SERVERS, DATABASES AND ITS NETWORKS. SLM
REPRESENTS THAT IN NO WAY SHALL THE INTEGRITY OF A SUBSCRIBER'S PROPRIETARY
DATABASE BE EFFECTED OR COMPROMISED DURING ANY OF THESE REQUIRED PLANNED OR
UNPLANNED MAINTENANCE ACTIVITIES.
(e) The System and all proprietary rights and intellectual
property rights relating to the System are the sole and exclusive property of
SLM, and Subscriber shall have no claim relating thereto. Subscriber expressly
acknowledges and agrees that SLM is and shall remain the exclusive owner of the
System and all source code, object code, machine language, software, and all
intellectual property rights, patent rights, trademarks, copyrights and trade
secrets therein and associated therewith, and as may be associated with any
other business owned or operated by SLM or its principals (collectively, the
"SLM Intellectual Property").
6. REPRESENTATIONS AND WARRANTIES OF SLM. SLM hereby represents and
warrants to Subscriber as follows:
(a) SLM is the owner of the System and has full right, power
and authority to execute, deliver and perform its obligations under this
Agreement.
(b) The Intellectual Property rights utilized in connection
with the System and performance of the Services hereunder do not violate any
rights of any third party, and there is currently no actual or threatened suit
by any such third party based on an alleged violation of such rights by SLM.
(c) The System shall function substantially in accordance
with the specifications set forth on Schedule A annexed hereto.
7. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER. Subscriber hereby
represents and warrants to SLM as follows:
(a) The execution, delivery and performance of this
Agreement has been duly authorized by all necessary action on the part of
Subscriber and does not violate any provision of applicable law, rule or
regulation.
(b) Subscriber shall make no claim nor assert any interest
or right in the SLM Intellectual Property.
8. CONFIDENTIAL INFORMATION.
(a) Each party undertakes to retain in confidence the
non-public terms of this Agreement and all other non-public information and
know-how disclosed pursuant to this Agreement which is either designated as
proprietary and/or confidential or by nature of the circumstances surrounding
disclosure, ought in good faith to be treated as proprietary and/or
confidential, and all copies thereof and notes relating thereto ("Confidential
Information"); provided, however, that each party hereto may disclose the terms
and conditions of this Agreement to its immediate legal and financial
consultants. The term "Confidential Information" does not include any
information which (i) at the time of disclosure or thereafter is generally
available to the public (other than as a result of a disclosure directly or
indirectly by a party or its representatives in violation of this Agreement),
(ii) is or becomes available to a party on a non-confidential basis from a
source other than the other party or its representatives, provided that, to the
receiving party's knowledge, such source was not prohibited from disclosing such
information to such receiving party by a legal, contractual or fiduciary
obligation owed to the other party, (iii) was in a party's possession or
knowledge prior to its being furnished by or on behalf of the party, prohibited
from disclosing such information to such party by a legal, contractual or
fiduciary obligation owed to the other party, (iv) is developed by the receiving
party independently of any disclosure of such Confidential Information by the
disclosing party; or (v) whose disclosure is required by applicable law, rule or
regulation. Each party agrees not to disclose the other party's Confidential
Information to any third party without the prior written consent of the
disclosing party. A party's disclosure of Confidential Information as required
by government or judicial order is not prohibited by this Agreement, provided
that the disclosing party gives the other party prompt notice of such order and
assists in the procurement of appropriate protective order (or equivalent)
imposed on such disclosure. Nothing contained herein limits either party's right
to develop products independently without the use of the other party's
Confidential Information. Except as may otherwise be specified in a duly
countersigned rider or amendment hereto, to the extent not inconsistent with
this Section 8, the terms of any non-disclosure agreement(s) entered into
between the parties prior to this Agreement expressly survive the execution of
this Agreement and are deemed incorporated herein by reference.
(b) Each party agrees that money damages would not be a
sufficient remedy for any breach or threatened breach of this Section 8 by it
and that the other party shall be entitled to equitable relief, including an
injunction and specific performance, in the event of any such breach or
threatened breach, in addition to all other remedies available at law or in
equity without the necessity of posting any bond or other security or proving
that monetary damages would be an inadequate remedy. Such remedies shall not be
deemed to be the exclusive remedies for a breach of this Agreement but shall be
in addition to all other remedies available at law or in equity.
9. DISCLAIMERS AND LIMITATION OF LIABILITY
(a) Subscriber expressly agrees that use of and access to
the System is at Subscriber's sole risk. Neither SLM nor its affiliates,
officers, directors, shareholders, employees or agents warrant that the System
or any services rendered by SLM will be uninterrupted or error-free, nor do they
make any warranty as to the results (including cost savings) that may be
obtained from the use of the System or Services or as to the accuracy,
reliability or currency of any data, information or content provided there from.
THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE WARRANTIES, LIMITATIONS AND
EXCLUSIONS SET FORTH IN THIS AGREEMENT (I) REPRESENT THE PARTIES' AGREEMENT AS
TO THE ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT THE AMOUNTS PAYABLE BY
SUBSCRIBER TO SLM PURSUANT TO THIS AGREEMENT REFLECT SUCH ALLOCATION OF RISK,
WITHOUT WHICH NEITHER PARTY WOULD HAVE BEEN WILLING TO ENTER INTO THIS
AGREEMENT; AND (II) FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
(b) THE SYSTEM AND ANY SERVICES ARE PROVIDED BY SLM ON AN
"AS IS" AND "AS AVAILABLE" BASIS. OTHER THAN AS EXPRESSLY PROVIDED FOR HEREIN,
SLM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS
TO THE OPERATION OF THE SYSTEM AND SERVICES OR THE DATA, INFORMATION, CONTENT,
MATERIALS OR PRODUCTS OBTAINED THEREFROM. TO THE FULLEST EXTENT PERMISSIBLE BY
APPLICABLE LAW, RULE, OR REGULATION, SLM DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES SHALL SLM, ITS
AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE
LIABLE TO SUBSCRIBER OR ANY THIRD-PARTY FOR ANY INDIRECT, CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST
PROFITS AND BUSINESS INTERRUPTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING
NEGLIGENCE, ARISING IN ANY WAY FROM ANY PRODUCT OR SERVICE SOLD OR PROVIDED ON
THE SLM SYSTEM, EVEN IF SLM IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT SHALL SLM'S LIABILITY EXCEED THE PRICE PAID BY SUBSCRIBER
FOR THE USE OF AND ACCESS TO THE SYSTEM OR THE SERVICES. NO ORAL ADVICE OR
WRITTEN INFORMATION GIVEN BY SLM OR ITS AFFILIATES, NOR ANY OF THEIR OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, PROVIDERS, OR THE LIKE, SHALL CREATE A WARRANTY;
NOR SHALL USER RELY ON ANY SUCH INFORMATION OR ADVICE.
(c) Under no circumstances shall SLM be liable for any
direct, indirect, incidental, special, or consequential damages that result from
the use of or inability to use the System or any data, information or content
obtained from the System that results from mistakes, omissions, interruptions,
deletion of files or e-mail, errors, defects, viruses, delays in operation or
transmission, or any failure of performance, whether or not resulting from acts
of God, communications failure, theft, destruction, or unauthorized access to
SLM's records, programs, or services. Subscriber hereby acknowledges that this
paragraph shall apply to all data, information content, reports, and services
available through the System.
10. INDEMNIFICATION.
(a) Each party agrees to indemnify, defend, and hold
harmless the other party, and its officers, directors, shareholders, employees,
successors and assigns, from and against any and all actions, causes of action,
claims, demands, costs, liabilities, expenses and damages (including, without
limitation, reasonable attorneys' fees) arising out of or in connection with any
breach of any representation, warranty or covenant set forth herein. In
addition, Subscriber hereby agrees to indemnify, defend and hold SLM, its
officers, directors, shareholders, employees, successors and assigns, harmless
from and against any and all actions, causes of action, claims, demands, costs,
liabilities, expenses and damages (including, without limitation, reasonable
attorneys' fees) arising out of or in connection with the use and operation of
the System, including, without limitation, the provision or transmission of any
data, content, reports or services.
(b) If either party requests indemnification hereunder
("Indemnified Party"), it will give notice to the party from which
indemnification is requested ("Indemnifying Party") promptly after the receipt
of any claim that may be identifiable hereunder and afford the Indemnifying
Party the opportunity to control the defense and approve any compromise,
settlement, litigation or other resolution or other disposition of such claim
except that the Indemnifying Party will have reasonable approval as to any
settlement, and if the Indemnifying Party unreasonably fails to approve any
settlement, it will be responsible for any and all losses, liabilities, damages,
costs and expenses (including without limitation reasonable outside attorneys'
fees and expenses) in excess of and after the time of the proposed settlement.
If the Indemnifying Party assumes control over an indemnified claim, the
Indemnified Party may participate in such defense at its sole cost and expense
and shall provide the Indemnifying Party with such reasonable cooperation and
assistance as may be required in the defense of any such claim.
11. TERM AND TERMINATION.
(a) TERM. This Agreement shall become effective as of the
date first written above ("Effective Date"). The contract shall have an initial
term of ninety days. After the completion of the first ninety day period,
provided written cancellation has not been delivered to SLM, the contract shall
automatically renew every thirty days, for an additional thirty day increment.
(b) TERMINATION FOR CAUSE. Notwithstanding the Term of this
Agreement as provided in Section 11(a) above, this Agreement may be terminated
at any time by either party in the event either party breaches any material
provision of this Agreement, and such breach is not cured within ten (10) days
following the breaching party's receipt of written notice of such breach from
the non-breaching party. The termination right provided in this Section 11 is
not exclusive of any remedies to which either party may otherwise be entitled in
law or in equity in the event of a breach of this Agreement. At its own
discretion, SLM may terminate this agreement in the event that the subscriber's
account becomes, or is, delinquent by thirty or more days.
(c) TERMINATION WITHOUT CAUSE. Following the completion of
the first Contract Year of this Agreement, notwithstanding the foregoing, either
party may terminate this Agreement with or without cause, at any time upon three
(3) months' prior written notice.
(d) RETURN OF CONFIDENTIAL INFORMATION. Upon the termination
of this Agreement by either party for any reason, each party shall promptly
return all Confidential Information belonging to the other party provided that,
notwithstanding anything contained herein to the contrary, that monies owed by
subscriber are paid in full. In the event of termination by SLM due to
non-payment by Subscriber of any monies owed hereunder, as defined herein, SLM
shall have the right to retain and use for its benefit any Data and all rights
related thereto.
12. NOTICES. All notices and statements to be given under this
Agreement shall be given in writing, derived by hand, overnight express or
similar service (fee prepaid), or first class United States
registered or certified mail with return receipt requested (postage prepaid), or
facsimile to the following addresses (which may be changed by written notice
according to the terms of this paragraph):
IF TO SLM: SLM Holdings, Inc.
000 Xxxx Xxxxxx Xxxx
Xxxxx X
Xxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx
Fax No.: (000)000-0000
With a copy to:
Xxxxxx Xxxxxx
000 Xxxxxxxxx Xxx
Xxx Xxxx, XX 00000
(000)000-0000
IF TO SUBSCRIBER: _________________
_________________
_________________
_________________
All written notices and statements must be sent via overnight courier, certified
or registered mail, facsimile, or personal delivery. Such correspondence shall
be deemed given, delivered, received and effective upon personal delivery, the
same day of sending by facsimile once confirmed, one calendar day after sending
by overnight express or similar service, three calendar days after mailing by
certified or registered United States mail, or at any point that the sender can
produce proof of delivery (i.e. signed proof of delivery, provided by the USPS
or overnight courier).
13. HEADINGS. The paragraph and section headings used in this
Agreement are for purposes of convenience only and shall not be deemed a part of
this Agreement for purposes of construction or interpretation.
14. ENTIRE AGREEMENT, AMENDMENT. This Agreement constitutes the
entire agreement and understanding between the parties relating to the subject
matter hereof, and all other prior agreements or understandings, written or
verbal, are hereby superseded. This Agreement cannot be amended, waived or
modified unless the parties so agree in writing signed by both of the parties
hereto.
15. ASSIGNMENT. This Agreement and the rights and duties hereunder
may not be assigned or delegated by either party without the prior written
consent of the non-assigning party, except by SLM, in connection with a sale of
it's entire business, whether such sale is accomplished by a transfer of
substantially all of its assets, by merger or otherwise provided that any such
assignee agrees in writing to be bound by the terms of this Agreement.
16. NO PARTNERSHIP. Nothing contained herein shall constitute this
arrangement to be a joint venture or a partnership between SLM and Subscriber.
17. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and are binding upon the parties hereto and their respective
successors and permitted assigns.
18. NO WAIVER. Failure on the part of either party to complain of
any action or non-action of the other party shall not be deemed to be a waiver
of any rights under this Agreement. No waiver of any of the provisions of this
Agreement shall be deemed to be a waiver of other provisions of this Agreement,
and a waiver at any
time of the provisions of this Agreement shall not be construed as a wavier at
any subsequent time of the same provisions.
19. SEVERABILITY. If any term of this Agreement is held to be
invalid or unenforceable, this Agreement shall be construed without such invalid
or unenforceable term.
20. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts. Each counterpart
so executed shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument.
21. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of New York, without regard to its conflicts of laws
principles. Any and all actions arising out of the performance of this Agreement
shall only be maintained in the appropriate Federal or State courts located in
the State of New York, Counties of Nassau or Suffolk and the parties irrevocably
consent to the exclusive jurisdiction of such courts. Subscriber expressly
acknowledges and agrees that the pricing and other terms herein have been
negotiated, set and calculated in reliance on Subscriber's agreement and
willingness to be exclusively and irrevocably subject to the personal
jurisdiction of the state and federal courts located in New York State, Counties
of Nassau or Suffolk and that SLM would not enter into this Agreement absent
such agreement by Subscriber.
SLM HOLDINGS, INC.
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Xxxxxxx X. Xxxxxxxxxx
National Sales Manager
DATE DATE
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