Exhibit 10.1
CONFIDENTIAL TREATMENT REQUESTED UNDER
17 C.F.R. SECTIONS 200.80(B)(4), 200.83 AND 230.406.
TRIAL LICENSE AND SERVICES AGREEMENT
This Trial License and Services Agreement ("Agreement"), is effective
as of March 20, 2002, by and between General Magic, Inc. ("Consultant") having a
place of business at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, XX 00000 and Citibank,
N.A., a national banking association having a place of business at 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000.
WITNESSETH
WHEREAS, Consultant wishes to provide certain services to Citibank; and
WHEREAS, Citibank wishes to procure such services from Consultant, for
good and valuable consideration.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
1. SCOPE OF WORK.
Citibank agrees to retain Consultant on a non-exclusive basis, to
provide services relating to the development and evaluation of an
Application as more fully described hereafter in Appendix A. Consultant
agrees to perform the professional services (hereinafter referred to as
"Services"), as set forth in Appendix A, which is attached hereto and
is incorporated herein by reference. Consultant also agrees to employ
all reasonable efforts to meet Citibank's assignment deadlines and
documentation standards, as applicable.
Citibank shall assign a Citibank employee (the" Project Manager") to
manage and/or coordinate the project and/or assignment. The Project
Manager shall be responsible to monitor Consultant's progress and for
the review and approval of out-of-pocket expenses and invoice
documentation. Unless otherwise agreed upon, Consultant shall meet with
the Project Manager every two weeks to discuss and review the progress
of the project and/or assignment and to report on and deliver work
completed during the preceding two weeks.
2. TERM.
This Agreement shall commence on the effective date as noted above and
shall terminate upon the conclusion of the sixty (60) day hosting
period described in Attachment 1, provided that upon fourteen (14) days
notice to Consultant prior to the then expiring term, Citibank may
extend the term of the hosting services for successive thirty-day
periods at the rate of $[**] per month. For the avoidance of the doubt,
any such extension shall be deemed to extend the term of this Agreement
for a like period.
3. PAYMENT FOR SERVICES.
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SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Citibank agrees to compensate Consultant in accordance with the fee
schedule set forth in Appendix A, which is attached hereto and is
incorporated herein by reference. Consultant agrees to submit to the
Project Manager an itemized invoice for the Services to be rendered
during the term of this Agreement and said invoice shall be payable
within [**] of receipt. Consultant agrees to maintain the necessary
records to ascertain the correctness of the invoice.
4. TRAVEL/REIMBURSABLE EXPENSES.
All travel by Consultant must be necessary and cost effective and
authorized in advance by the Project Manager, in accordance with
Citibank's expense guidelines.
The Project Manager should make all arrangements for Consultant for air
travel, hotel reservations and rental car usage required in connection
with the Services provided under this Agreement, through the
appropriate Citibank approved travel agency, using the business unit's
account number.
It is expected that all expenses associated with ground transportation
(e.g., taxi cabs) and meals incurred by the Consultant, while
conducting activities on behalf of Citibank, will be at reasonable
rates and that the Consultant will exercise prudence in incurring such
expenses.
To the extent possible, all disbursements should be paid by the
Consultant using a Citibank Visa card, Citibank Mastercard or Diners
Club charge card.
Citibank will reimburse Consultant's approved business expenses at
cost. Request for reimbursement of expenses in excess of $50.00 (for
any given expense) will require submittal of acceptable substantiating
documentation for each such expense.
Disbursements will be reimbursed at the cost paid by the Consultant,
without xxxx-up; however, the following disbursements will not be
reimbursed;
(i) Secretarial or word processing services;
(ii) Photocopy expenses at more than 5 cents per page. Photocopy
costs in excess of $1,000 for a single job must be authorized
in advance by the Project/Assignment Manager;
(iii) Any other charges incurred by the Consultant's support staff,
such as meals, filing or proofreading, regardless of when
incurred;
(iv) Any other overhead items (e.g., office supplies, furniture,
conference room space, heating/air conditioning, etc.); and
(v) Local telephone or fax expenses.
5. INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Consultant is an Independent
Contractor and shall not be considered for any purpose to be an
employee of Citibank. Apart from the payment of the agreed upon fees as
outlined above, Citibank is not responsible for any other compensation,
nor for employee benefits and/or matters relating thereto (including
but not limited to the withholding
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and/or payment of federal, state and local income and other payroll
taxes) nor for Workers Compensation, disability benefits or any other
additional legal requirements of a similar nature.
6. PROPRIETARY RIGHTS.
A. For the purposes of this Agreement, "Intellectual Property Rights"
means all current and future worldwide copyrights, trade secrets,
patents and other patent rights, utility models, and other intellectual
property rights (other than trade names, trademarks, and service
marks), including all applications and registrations with respect
thereto.
B. Consultant. Citibank hereby acknowledges that, as and for the
Services, Consultant is building and hosting a proof of concept [**]
application ("Application") built on Consultant's Voice Infrastructure
Software ("Software") to which Citibank will have access under the
terms and conditions of this Agreement. Therefore, Citibank agrees
that, as between the parties, Consultant and its suppliers exclusively
own all right, title and interest in and to the hardware and software
used by Consultant in connection with the provision of the Services,
including the Application (except as set forth in Section 6.C. below)
and the Software and all modifications, enhancements and derivatives
thereof, and all information, reports, studies, charts, plans,
diagrams, presentations and any other tangible or intangible
information, deliverables and all inventions, discoveries,
specifications, designs, methods, devices, writings, compilations of
information, and/or materials developed or produced by Consultant
hereunder, together with all Intellectual Property Rights in the
foregoing (collectively, "Consultant Proprietary Information")
exclusive of Citibank Proprietary Information.
C. Citibank. Consultant agrees that, as between the parties, Citibank
and its affiliates exclusively own all right, title and interest in and
to the (i) information and technology to be delivered by Citibank to
Consultant for use in connection with the development and hosting of
the Application, including the Citibank [**] platform and all
modifications, derivatives and enhancements thereof, (ii) Citibank
Confidential Information; and (iii) all Intellectual Property Rights in
the foregoing (collectively "Citibank Proprietary Information").
D. [**] Technology. [**] shall [**] for the Application under this
Agreement and all Intellectual Property Rights therein ("Scripts"), and
[**] shall have [**] the Scripts. [**] will require any [**] with any
use, sale, distribution, modification, license or other exploitation of
the Scripts. [**]. The parties agree that the Scripts are Confidential
Information, which shall be subject to protection as provided under
Section 9 below. Each party will render all customary and reasonable
assistance to the other party, including without limitation execution
and delivery of all additional documents reasonably requested by the
other party, free of charge, as the requesting party may request in
good faith in order for such requesting party to perfect and register
all Intellectual Property Rights relating to such requesting party's
[**] in any and all countries.
7. LICENSE TO ACCESS SOFTWARE.
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Subject to the terms of this Agreement, including, without limitation,
the payment of the fees set forth in Section 3 above, Consultant hereby
grants to Citibank a non-sublicensable, non-transferable (except as
otherwise provided in Section 19), non-exclusive license to access the
Software through Consultant's Network Operations Center ("NOC") and use
the Software hosted on the NOC solely for Citibank's internal business
purposes in connection with its evaluation of the Software and
Application.
8. WARRANTY DISCLAIMER; INDEMNITY.
A. Disclaimer. CITIBANK HEREBY ACKNOWLEDGES THAT THE SOFTWARE AND
SERVICES ARE PROVIDED TO CITIBANK AS A PROOF OF CONCEPT AND AS SUCH,
THE SOFTWARE AND SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF
ANY KIND WHATSOEVER. CONSULTANT, ON BEHALF OF ITSELF AND ITS SUPPLIERS,
HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SOFTWARE
AND SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NON-INFRINGEMENT.
B. Indemnity. Consultant shall, at its expense, defend or settle any
third party claim against Citibank that the Services, as provided in
accordance with this Agreement, or the Application and Software, when
used in accordance with this Agreement, infringe any third party's [**]
or misappropriates any third party's [**] ("Claim") and Consultant
shall pay any final judgments awarded, or settlements entered into,
provided that Citibank (a) promptly notifies Consultant in writing of
the Claim, (b) gives Consultant sole control of the defense thereof and
all related settlement negotiations, and (c) provides Consultant with
the assistance, information and authority necessary to perform its
obligations under this Section 8.B. Consultant will reimburse
reasonable out-of-pocket expenses incurred by Customer in providing
such assistance.
9. CONFIDENTIAL INFORMATION.
The provision, disclosure and use of all Confidential Information under
this Agreement (including the Consultant Proprietary Information and
the Citibank Proprietary Information) shall be governed by the terms
and conditions of the Mutual Non-Disclosure Agreement entered into by
the parties on October 1, 2001 (the "NDA"), except to the extent that
any provisions of the NDA are inconsistent with the terms of this
Agreement, in which case the terms of this Agreement shall govern.
Consultant shall comply with Citibank's reasonable privacy policies and
its Privacy Promise concerning the privacy and confidentiality of
Citibank customer information, including as they may be amended from
time to time. Citibank shall make such policies and Privacy Promise
available to Consultant upon request. As part of such policies and
Privacy Promise, Citibank reserves the right to conduct an on-site
audit and review of Consultant's systems, sites and procedures, and
those of its subcontractors, at Citibank's expense, at reasonable times
and for a reasonable duration and upon reasonable advance notice to
Consultant to ensure the privacy and
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confidentiality of any Citibank customer information. In the event
Citibank privacy policy standards are not met, the parties shall
mutually agree upon a re-mediation plan.
10. LIMITATION OF LIABILITIES.
EXCEPT FOR BREACH OF SECTIONS 6 OR 9, OR CONSULTANT'S INDEMNITY
OBLIGATIONS UNDER SECTION 8.B. NEITHER PARTY SHALL HAVE ANY LIABILITY
FOR ANY CLAIM RELATING TO THIS AGREEMENT IN EXCESS OF THE FEES AND
EXPENSES PAID TO CONSULTANT HEREUNDER. EXCEPT FOR BREACH OF SECTIONS 6
OR 9, OR PURSUANT TO SECTION 8.B. IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. INSURANCE.
Consultant shall maintain, throughout the performance of its
obligations under this Agreement, a policy of Worker's Compensation and
Employer Liability Insurance with coverage limits as may be required by
law of the state in which the Services are to be performed. Consultant
further agrees to maintain adequate Comprehensive General Liability
Insurance (minimum coverage $500,000.00) providing coverage against
liability for bodily injury, death and property damage which may arise
out of or based upon any act or omission of Consultant or any of its
employees, subcontractors, or agents under this Agreement. Upon written
request, Consultant shall promptly provide certificate(s) from its
insurers indicating the amount of insurance coverage, nature of such
coverage and expiration date(s) of each applicable policy.
12. COMPLIANCE WITH CITIBANK'S POLICIES & PROCEDURES.
Consultant agrees to comply with Citibank's Drug Abuse Policy, which
prohibits the selling, distributing, manufacturing, processing, using
or being under the influence of illegal drugs or illicit narcotics (non
prescriptive medication) as defined by the state in which the Services
are to be performed and/or the Federal Government, while on Citibank
business or on Citibank premises. Consultant acknowledges that its
employees, subcontractors, or agents may be required to undergo drug
testing based on the nature of their assignment. In the event that any
of Consultant's employees, subcontractors, or agents refuses to undergo
such testing or violates the aforementioned policy, said person will be
barred from performing any further Services for Citibank and this
Agreement may be terminated by Citibank.
Consultant acknowledges that the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, which prohibits a federally
insured institution from knowingly engaging any person with a criminal
conviction, which includes crimes involving breach of trust or
dishonesty, (collectively referred to as "criminal background") from
participating directly or indirectly in the conduct of the affairs of
the institution. Consultant agrees that it shall not assign any person
to provide Services to Citibank hereunder that Consultant knows,
suspects or has reason to believe has a criminal background. Consultant
acknowledges that its employees, subcontractors, or agents may be
required to be fingerprinted based on the nature of their assignment.
In the event that any of Consultant's employees, subcontractors, or
agents refuse to undergo such fingerprinting or violates the
aforementioned prohibition, said person will be barred from performing
any further Services for Citibank and this Agreement may be terminated
by Citibank.
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The Consultant further acknowledges that its representative has
received and read Citibank's Code of Conduct & Ethical Policies and
will abide by all applicable policies and requirements contained
therein. The Consultant agrees to comply with all Citibank standard
safety and security policies and procedures which have been
communicated to Consultant by Citibank.
Consultant agrees that it will comply with all of Citibank's (i)
standard physical and information security procedures and rules in
place at such Citibank locations where Consultant is performing work
and (ii) web standards, where applicable.
13. COMPLIANCE WITH LAWS.
Consultant agrees to comply with all applicable federal, state, county
and local laws, ordinances, regulations and codes in the performance of
its obligations under this Agreement, including but not limited to the
procurement of permits, licenses and certificates where required and
payment of applicable taxes.
14. TERMINATION
This Agreement may be terminated by Citibank at any time, upon [**]
prior written notice. Consultant shall be paid for all work which was
authorized by Citibank prior to such notice of termination and which is
completed by the Consultant before the effective date of said
termination.
Upon completion of the project and/or assignment or upon any
termination of this Agreement, each party shall return to the other
party all of its Confidential Information and its Proprietary
Information, and all documents, data and materials and copies thereof
supplied to the other party in connection with this Agreement. Further,
Consultant shall (i) discontinue providing any further access to the
Software and Application by Citibank; and (ii) discontinue any further
use of any Citibank Proprietary Information.
15. TAXES.
The fees and/or charges reflected in Appendix A hereof, are exclusive
of any sales, use, personal property, value-added and goods/services
taxes. When applicable, said taxes will appear as a separate item on
Consultant's invoice and Citibank shall be liable for payment of such
taxes to Consultant.
Notwithstanding the foregoing, Citibank shall not be responsible for
any foreign, federal, state or local taxes based on the net income or
receipts, or any other such taxes based on Consultant's doing business
in a particular jurisdiction.
16. PUBLICITY.
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Consultant agrees not to use the name of Citibank or any of its
subsidiaries or affiliates in any sales or marketing publication or
advertisement including internal and external publications, without the
prior written consent of Citibank. Consultant also agrees not to make
any public disclosure except as may be legally required, relating to
this Agreement or Citibank or its affiliated companies, without
obtaining the prior written consent of Citibank.
17. NONDISCRIMINATION.
Consultant agrees to comply and to cause its subcontractors and/or
agents to comply with the provisions of all applicable federal, state,
and local laws, regulations and executive orders relating to equal
opportunity and nondiscrimination in employment, and the use of
minority business enterprises, to the extent that any such laws, orders
and regulations are applicable in the performance of their Services
hereunder. For the purpose of this Agreement, the provisions of such
laws, orders and regulations shall be deemed an integral part of this
Agreement to the same extent as if they were written at length herein.
18. NON-SUBORNATION.
Consultant agrees that in performance of its obligations under this
Agreement, it will not make or offer to make any payments to, or
confer, or offer to confer any benefit upon any employee, agent or
fiduciary of any third party, with the intent to influence the conduct
of such employee, agent or fiduciary in relation to the business of
such third party, in connection with this Agreement.
19. GENERAL PROVISIONS.
Paragraph Headings. Paragraph headings are for convenience only and
shall not be a part of the Terms and Conditions of this Agreement.
Waiver. Failure by either party at any time to enforce any obligation
by the other party, to claim a breach of any term of this Agreement or
to exercise any power agreed to hereunder will not be construed as a
waiver of any right, power or obligation under this Agreement, will not
affect any subsequent breach, and will not prejudice either party as
regards any subsequent action.
Severability. If any term or provision of this Agreement should be
declared invalid by a court of competent jurisdiction, the remaining
terms and provisions of this Agreement shall remain unimpaired and in
full force and effect.
Subcontractors/Agents. Citibank reserves the right of approval of all
subcontractors and/or agents, which approval will not be unreasonably
withheld by Citibank. Approval of any subcontractor and/or agent by
Citibank shall not constitute the superseding or waiver of any right of
Citibank to reject work which is not in conformance with its standards
or this Agreement. Consultant shall be fully responsible for its
subcontractors and/or agents. Nothing in this Agreement shall be
construed to create any contractual relationship between Citibank and
any subcontractor and/or agent, nor any obligation on the part of
Citibank to pay or to see to the payment of any money due any
subcontractor and/or agent as may otherwise be required by law.
Assignment. Neither party may assign any of its rights or obligations
under this Agreement without the prior consent of the other; provided,
however, that either party may assign any rights
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or obligations to a parent, subsidiary or affiliate (including any
successor in interest thereof) upon notice to the other party.
Modification. No modification, waiver or amendment of any term or
conditions of this Agreement shall be effective unless and until it
shall be reduced to writing and signed by both of the parties hereto or
their legal representatives.
Survival. Sections 3, 5, 6, 8, 9, 10, 14 and 19 will survive the
expiration or termination of this Agreement for any reason.
Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the substantive laws of the State of New
York as if the Agreement were made in New York for performance entirely
within the State of New York.
Complete Agreement. This Agreement together with Appendix A constitutes
the entire agreement of the parties with respect to this subject matter
and may not be modified in any way except by written agreement signed
by both parties. There are no other agreements either express of
implied with regard to this subject matter.
IN WITNESS WHEREOF, the parties hereto, through their duly authorized officers,
have executed this Agreement as of the effective date first set forth above.
Citibank, N.A. General Magic, Inc.
By: /s/ signature illegible By: /s/ Xxxxx X. Russian
_______________________ ____________________
Print Name:_________________ Print Name: Xxxxx Russian
_____________
Title:______________________ Title: CFO
__________________
Date:_______________________ Date: March 18, 2002
___________________
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APPENDIX A
Statement of Work
[**] Proof-of-Concept ("Project")
Start Date: February 1, 2002
Completion Date: Xxxxx 00, 0000
X. Services to be Rendered and Deliverable to be Provided:
Services to be performed and Deliverables ("Deliverables") in
connection with developing an [**] applications. More specific
information is set forth in Attachment 1 which is attached hereto and
incorporated herein by reference.
II. Deliverables/Milestones:
All Services shall be completed on or before the Completion Date set
forth above unless the parties hereafter revise the completion date.
III. Fees:
1. Fees:
(a) Fixed Price Project: $[**]
(b) Reimbursable Expenses $[**]
2 Estimated Total Fees: $[**]
3. Estimated Taxes: uncertain
5. Estimated Total Cost (exclusive of taxes) $[**]
Consultant shall not charge any fees in excess of those set forth in the absence
Citibank's prior written approval.
IV. Acceptance Criteria: As set up forth in Attachment 1 to this Appendix A
V. Miscellaneous: Not withstanding anything contained in this appendix,
Citibank shall not be obligated to proceed with any further activities
or services shall be subject to a separate written agreement therefor.
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Citibank, N.A. General Magic, Inc.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxx X. Russian
____________________ _____________________
Print Name: Xxxx Xxxxx Print Name: Xxxxx Russian
____________ _____________
Title:___________________ Title: CFO
__________________
Date:____________________ Date: 3-18-2002
___________________
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Attachment 1
[**]
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