Exhibit 10.9
SLM HOLDINGS, INC.
SUBSCRIBER AGREEMENT
AGREEMENT made this ___ day of _____, 2006_ between SLM Holdings, Inc.
("SLM"), a New York corporation having offices located at 000 Xxxxxxxx Xxxx,
Xxxxx 000X, Xxxxxxxx, XX 00000 and XXXXXX XXXXXXX AND COMPANY, INC. ("the
subscriber") with offices at 00 Xxxxxx Xxxx, 00xx Xx. Xxx Xxxx, XX 00000.
WHEREAS, SLM owns and operates its proprietary "Broker's E-Vantage"
sales data and 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 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.
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(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.
(d) SLM shall issue a Warrant Agreement to the Subscriber in the
amount of 250,000 Warrants to purchase SLM Holdings Inc. Common Stock at $0.40
cents per share or current Fair Market Value (FMV) for each warrant exercised.
The Warrants will be vested immediately upon the signing of this Agreement. The
Warrants will have a three year term. SLM is issuing these Warrants in exchange
for the Subscribers permission to use some or all of the Subscriber's Users as
candidates in extended "Beta-testing" and new product introduction scenarios.
(e) SLM shall issue an additional Warrant Agreement to the
Subscriber in the amount of 400,000 Warrants. The Warrants shall have the same
strike price ($0.40) as the "Beta Warrant" but shall vest as follows;
200,000 Warrants vest on July 1, 2006 providing at least 100 of the Subscriber's
Users have signed on for a one year term to SLMs TBeV web hosted software
product.
200,000 additional Warrants vest on December 31, 2006 providing at
least 200 of the Subscriber's Users have signed on for a one year term to SLMs
TBeV web hosted software product.
In the event that these milestones are not reached than the Warrants shall vest
at a rate of 1000 Warrants per signed User.
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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.
(c) The Subscriber shall provide SLM a list of names of all branch
managers and Registered Reps in each of the Subscribers offices for the sole
purpose of soliciting SLM goods and service offerings. The list shall include
all email addresses and phone numbers. The list will be updated at SLMs request
no less than quarterly.
(d) The Subscriber agrees to send out, from time to time, a
marketing email whose author is a senior executive of the Subscriber. The emails
will be prepared by SLM and approved by the Subscriber. The minimum anticipated
schedule of this email will be monthly for six months following the initial
implementation and then on a quarterly basis.
(e) The Subscriber agrees to allow a senior executive of the
Subscriber to join a "Road Show" to certain of the Subscribers offices along
with representatives of SLM for the purpose of demonstrating the SLM software
and initiating new users. SLM agrees to pay 100% of all costs associated with
these presentations. A minimum of two "Road Shows" during the first year
following implementation is expected.
(f) The Subscriber shall insure that every user delegated for an
implementation of TBeV have access to a PC that meet the minimum requirements as
detailed in Schedule E of this Agreement.
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
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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.
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(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.
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(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 indemnifiable 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 FOR INDIVIDUAL USERS. 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 and equipment 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
and National Securities agree to binding mediation of the dispute in the state
of NY.
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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 Xxxxxxxx Xxxx
Xxxxx 000X
Xxxxxxxx, XX 11 747
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: Xxxxxx Xxxxxxx and Company, Inc.
00 Xxxxxx Xxxx, 00xx Xx.
Xxx Xxxx, XX 00000
(000)000-0000
Fax (000) 000-0000
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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 a 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.
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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.
XXXXXX XXXXXXX AND COMPANY INC. SLM HQLDINGS, INC.
By: /s/ XXXXXX XXXXXX By: /s/ XXXXX XXXXXXX
----------------- ---------------------
XXXXXX XXXXXX XXXXX XXXXXXX
DATE DATE
--------------- ---------------------
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SCHEDULE A
CUSTOM REGISTERED REPRESENTATIVE SET-UP
1. Login Registration and password assignment - The TBeV system uses
Verisign 128 bit encrypted SSL to assure the security of every user's data
files.
2. Use of the SLM Lead Wizard for up to 10000 leads for each new user. - As a
welcome to the system, SLM include for FREE, an initial database for every
user to employ. This will allow the user to get comfortable with the
powerful search, dialing and email tools associated with the system
3. Introductory Custom Flash campaign - SLM will include the colors, logos,
word copy and other distinct identifying corporate information to allow
your first impression with your prosects to be a lasting one.
4. Two digital photographs captured and uploaded - SLM will take or upload
two personal photos of each user to be incorporated with the introductory
email campaign. The photos will greatly personalize the presentation and
help eliminate the "I just don't know you" rebuttal often heard when
closing sales.
5. Custom digital resume' preparation and upload - Each user shall provide
SLM with a completed, simple personal questionnaire which SLM will then
customize into a professional looking resume.
6. On-site or Web based introductory tutorial and workshop - In most cases
the SLM team of trained experts will be on site to work with users on a
group and individual basis to make sure they have a clear working
knowledge of the TBeV system. Additionally, every user will be assigned
their own account manager. The manager is available to answer any
questions and will regularly phone the users to make sure their experience
with the system is all they expected. The account manager will also
re-visit user locations when necessary or to advise users of new release
features or specials.
7. Unlimited customer service - SLM will provide unlimited customer service
via its 24 hour support line (0-000-XXX-XXXX). Sales support will be
available from 8AM to 10PM Monday-Friday. After hours messaging is
available 24/7 and the SLM customer service desk will return the call at
the beginning of the next business day.
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8. 100mb storage (approximately 50,000 leads) per user - The TBeV system is
designed to keep the user's data "fresh" and allows for the storage of
50,000 leads. Additional space is available for a fee. The user will be
prompted to purge or download antiquated or unused data files to disk when
full.
10. 100% Redundancy via failover co-location at Globix Inc - SLM has a state
of the Art server array located at Globix worldwide in NYC. All data
stored on any SLM servers are treated as "mission critical" data and
subject to a daily backup to the SLM co-location servers located at the
Globix facility in California.
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SCHEDULE B
FEES AND TERMS
1. PERIOD AND RENEWAL OF CONTRACT
(a) THIS MASTER CONTRACT IS FOR AN INITIAL PERIOD OF ONE YEAR. AFTER ONE
YEAR, PROVIDED NO NOTICE OF CANCELLATION HAS BEEN PROVIDED BY
SUBSCRIBER, THE TERM WILL BE THIRTY DAYS, WITH AUTOMATIC RENEWALS
EVERY THIRTY DAYS THEREAFTER. (NOTE: INDIVIDUAL SUBSCRIBERS HAVE
DIFFERENT CANCELLATION RIGHTS SET FORTH IN SECTION 11A OF THE
SUBSCRIBER AGREEMENT.)
2. MONTHLY SUBSCRIPTION FEE
(a) $100.00/USER based on cost associated with current terminals.
Payment of monthly subscription fee to commence 30 days from the
date hereof. All payments are due within 30 days of billing date.
(b) $50.00/USER Dialer License fee for unlimited use of the SLM
auto-Dialer when connected to a local PBX.
3. ONE TIME SET UP FEES
(a) $200/USER set up fee - Includes on site CPU survey, Active -X load,
all installation connections.
(b) $280 BLACK BOX DIALER AND MODEM LEASE - Includes Installation and
Unlimited use of the SLM dialer box and desktop modem.
(c) ONE TIME REBATE ON UP FRONT FEES *
NUMBER OF USERS REBATE TO SUBSCRIBER
--------------- --------------------
1-24 $ 25.00
25-49 $ 50.00
50-99 $ 75.00
100 and greater $100.00
= Rebate on one time fees are subject to the signing of a minimum 100
Users by 7/1/2006
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4. MONTHLY REBATE
SLM agrees to rebate $25.00 per month for every desktop. The
rebate will appear as a monthly credit towards the total
balance due to SLM.
5. SECURITY DEPOSIT
A security deposit in an amount equal to (0) months of subscription
fees is due upon execution of this Agreement.
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SCHEDULE C
THE BROKER'S e-VANTAGE
SERVICE LEVEL AGREEMENT
SERVICE LEVEL OVERVIEW
Sales Lead Management offers a single Service Level Agreement (SLA) that ensures
99.9% applications availability. This is achieved through a dedicated,
monitored, maintained, and backed up data center environment providing:
1. Connectivity - SLM applications are connected to the Internet 24/7.
2. Hardware - 24/7 break fix time on all the server hardware.
3. Software - 24/7 break fix time for all applications, operating systems, and
databases.
4. Customer Support - 24/7 availability.
CONNECTIVITY
Network integrity is maintained by utilizing proactive monitoring tools that
consist of commercial off-the-shelf (COTS) hardware, software and port monitors
along with proprietary application scripts provided by SLM. Our fault tolerant
24/7 managed network - ensures no single point of failure between our servers
and the Internet backbone.
HARDWARE
SLM Data center server availability is maintained by a fault tolerant hardware
infrastructure of load balanced symmetrical multi-processor (SMP) servers. The
infrastructure provides a resilient and real time self-healing solution for
highly available servers. All servers are configured with hard disc redundancy
supporting either RAID-1 or RAID-5 array automatic real-time recovery in the
event of a disc failure. Additionally, all of our servers are configured with
power supply redundancy and are sourced by redundant power distribution systems
backed up by both battery and diesel generators.
SOFTWARE
SLM software, complimented by our hardware infrastructure, is highly available.
Transactions are distributed across our hardware infrastructure to ensure
optimal performance and fault tolerance.
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CUSTOMER SUPPORT
SLM Customer Support is available 24x7. Response time during standard business
hours (Mon-Fri 8am-6pm EST) is 15-30 minutes depending on incident type,
immediate. Off-hours support provides thirty (30) minute response time. All
service incidents are documented, prioritized, and tracked through resolution.
Internal SLA's ensure all incidents that are processed promptly and that our
customers receive timely and accurate updates.
The range of expertise and experience available from within SLM ensures that our
clients have a SLA which offers the level of systems, application, and customer
support our customers expect. For customers requiring a custom or specialized
Service Level Agreement, or who have other special requirements, SLM will work
with our customers to provide the desired Service Levels.
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SERVICE LEVEL AGREEMENT
The Broker's e-Vantage System is used by NATIONAL SECURITIES CORPORATION to
manage a comprehensive sales lead database and market various financial products
using the SLM permission based email campaign manager. SLM guarantees that:
a. The TBEV BROKER'S e-VANTAGE service will be available 99.9% of the
time from MONDAY-FRIDAY FROM 8:00AM TO 8:00PM EST/EDT. Any
individual outage in excess of SIX (6) HOURS of sum of outages
exceeding SIX (6) HOURS per month will constitute a violation.
b. Typically, 99% of TBEV BROKER'S e-VANTAGE transactions will exhibit
THREE (3) SECONDS or less response time, defined as the interval
from the time the user sends a transaction to the time a visual
confirmation of transaction completion is received. EXCLUDED FROM
THIS AGREEMENT ARE: (1) LEAD DATABASE QUERY TRANSACTIONS AND (2)
TRANSACTION LATENCY DUE TO THE QUALITY OF SERVICE OF THE PUBLIC
INTERNET. Missing the metric for business transactions measured over
any business week will constitute a violation.
c. The SLM Customer Support team will respond to service incidents that
affect multiple users (TYPICALLY MORE THAN 10) within FIFTEEN (15)
MINUTES, resolve the problem within TWO (2) HOURS, and update status
every THIRTY (30) MINUTES. Missing any of these metrics on an
incident will constitute a violation.
d. The SLM Customer Support team will respond to service incidents that
affect individual users within FIFTEEN (15) MINUTES, resolve the
problem within ONE (1) HOUR, and update status every THIRTY (30)
MINUTES. Missing any of these metrics on an incident will constitute
a violation.
e. The SLM Customer Support team will respond to non-critical inquiries
within THIRTY (30) MINUTES, deliver an answer within THIRTY (30)
MINUTES, and update status every THIRTY (30) MINUTES. Missing any of
these metrics on an incident will constitute a violation. A non-
critical inquiry is defined as a request for information that has no
impact on the service quality if not answered or acted upon
promptly.
MONTHLY VIOLATION AND ASSOCIATED PENALTIES
1 VIOLATION OF ANY SORT = 50% DISCOUNT ON THE MONTHLY FEE PER EACH AFFECTED
DESKTOP.
2 VIOLATIONS OF ANY SORT (FOR MORE) = 100% DISCOUNT ON THE MONTHLY FEE OF EACH
AFFECTED DESKTOP.
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SCHEDULE D
CORPORATE ADMINISTRATION RIGHTS
NATIONAL SECURITIES CORPORATION shall elect an organizational "administrator"
within its organization who will have the following entitlements when logged
into The Broker's e-Vantage system under their authorized password:
1. The ability to access Xxxxxx Xxxxxxx and Company, Inc. records or
databases 24/7 within the TBeV environment.
2. The ability to create, modify, delete or assign passwords and
usernames or provision new users among authorized users.
3. Add, delete or re-assign prospectors with the system.
4. The ability to re-assign leads or data between authorized users.
5. The ability to run certain queries such as the number of dials made
per rep or the ability to view the history of any file uploads.
6. Grant or deny access to compliant approved email presentations.
7. Access any and all records entered and maintained by an authorized
user(s).
8. Enter or change text in certain editable tables (i.e. broker bios or
client letters in parts of email messages.)
9. All uploads of data shall be delivered to SLM in excel (.xls) or
comma separated text file (.csv) format at the direction of the
organization administrator. All uploads (excluding the SLM Lead
Wizard or other data files purchased through SLM) are subject to a
standard upload fee of .01 cent per record.
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SCHEDULE E
TBEV DESKTOP AND NETWORK REQUIREMENTS
In order to run TBeV, the following minimum requirements must be met.
Recommended requirements are also listed for optimal performance of this
application.
HARDWARE/SOFTWARE/NETWORK CONFIGURATION
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MINIMUM RECOMMENDED
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HARDWARE o Pentium 112 o Pentium IV
o 128 MB of RAM o 256MB of RAM or better
o Video Resolution 1024x768 o Video Resolution 1024x768 or
256-colors higher, True-color
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SOFTWARE o Windows 2000 o Windows XP (SP2)
o Microsoft Internet Explorer 5.0 o Microsoft Internet Explorer 6.0
(SP2) (SP2)
o Macromedia Flash Player o Macromedia Flash Player
version 6 version 7
o Browser must: o Browser must:
o allow ActiveX o allow ActiveX
controls/plug-ins to controls/plug-ins to
install and run and be install and run and be
able to read/write to the able to read/write to the
registry registry
o be JavaScript enabled o be JavaScript enabled
o accept cookies and o accept cookies and
certificates certificates
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NETWORK o 56kbps modem connection to the o LAN with T1 WAN link for
internet internet access
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ADDITIONAL PRE-REQUISITES
o Computers must be free of Spyware and Viruses prior to installation.
If the computers are not free of Spyware and/or Viruses, SLM will
attempt to clean the affected machine(s) at an hourly rate of $200
per Hour. SLM also reserves the right to subcontract these services.
o Administrative access (Power User or higher) is required to install
or upgrade the various components of the software. Standard User
accounts will not be able to properly install and configure the
software. After installation or upgrade is complete, Standard User
permissions are sufficient to run the software.
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o If Pop-Up Blocker software is being used, it must be configured to
Always Allow Pop-Ups from "xxx.xxxxxx.xxx" and
"xxx.xxxxxxxxxxx-xxxxxxx.xxx". Additionally, if Content Advisor or
any other web filtering software/firewalls are being used, the user
must be granted full access to the above URLs.
o Open Internet Explorer. Click the Tools menu and select Internet
Options. In the dialog that appears, click on the Security tab, then
select the Internet zone and click the Custom Level button at the
bottom. Verify the following settings:
ACTIVEX CONTROLS AND PLUG-INS
o Automatic prompting for ActiveX controls: Enabled
o Download signed ActiveX controls: Prompt
o Run ActiveX controls and plug-ins: Enabled
o Script ActiveX controls marked safe for scripting:
Enabled
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