Blueprint





  Exhibit 10.4







 


SERVICES
AGREEMENT


This
Services Agreement, dated as of February 8, 2017 (the "Effective Date"), is by and between
Smart Server, Inc., a Nevada corporation (the "Company"), and Halcyon Consulting, LLC, a Maryland limited liability
company ("Halcyon") (each a
"Party" and collectively,
the "Parties").


WHEREAS, the
Company has agreed to engage Halcyon to, and Halcyon has agreed to,
deliver certain development and support services to the Company
with respect to the technology described in Exhibit A (the "Technology").


NOW,
THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth
herein, subject to the terms and conditions set forth herein and
intending to be legally bound, the Parties hereby agree as
follows:




1.

Services








1.1.

Overview. Halcyon shall perform
the services described in Exhibit A with respect to
development, enhancement and support of the Technology, and such
other services as agreed in writing between the Parties from
time-to-time (collectively, the "Services"). At the Company's request,
Halcyon shall work with and cooperate with the Company's personnel
and third party service providers.








1.2.

Delivery; Remote Access.
Halcyon shall deliver all software to the Company in both source
code and object code format, as applicable and as requested by the
Company. All audiovisual works and documentation shall be delivered
in formats as requested by the Company. Throughout the Term,
Halcyon shall make all work-in-progress remotely accessible to the
Company on a real-time basis to enable the Company to monitor,
test, download and otherwise review all work-in-progress under the
Services. Such access shall be through a secure, password-protected
virtual private network (or other mode mutually agreed between the
Parties) accessible only by Halcyon and the Company and/or the
Company's designated representatives.








1.3.

Review. All work product shall
be subject to the Company's review and approval. In the event that
the Company identifies any issues with the work product, Halcyon
shall promptly address the issues and resubmit for review by the
Company. No deliverables shall be deemed complete until finally
approved and accepted by the Company.








1.4.

Workmanship. All work performed
by Halcyon shall be in accordance with best practices. Halcyon
shall take all necessary precautions to ensure the safety,
security, integrity and quality of all work performed, including
but not limited to engineering and management practices, regular
backup and recovery, disaster prevention and recovery, anti-virus
and intrusion prevention, server and system performance and
availability, and documentation. Halcyon shall be liable for any
loss of source code, designs, data, or other work or work in
progress resulting from the actions of Halcyon or its
subcontractors.







 

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1.5.

Time of the
Essence. Halcyon acknowledges that time is of the essence
with respect to Halcyon’s obligations hereunder and agrees
that prompt and timely performance of all such obligations in
accordance with this Agreement is strictly required.








2.

Personnel








2.1.

Project Manager. Company shall
appoint a "Project Manager" who (a) will be the primary contact
with Halcyon during the Term, and (b) will have overall
responsibility for managing and coordinating Halcyon's resources
and cooperation with the Company hereunder.








2.2.

Staffing. Halcyon shall assign
sufficient onshore personnel at appropriate levels of experience
and responsibility to timely perform its obligations under this
Agreement. Upon request, Halcyon shall provide the Company with an
opportunity to review and approve such personnel. Halcyon
acknowledges and agrees that continuity of personnel on the
projects hereunder is critical to the success of the Services.
Accordingly, Halcyon shall not, without the Company's prior written
consent, transfer, reassign or otherwise re-deploy any onshore
senior designers, engineers or other critical personnel from
performance of the Services and shall not take any other action
which would result in the material reduction of time expended by
such personnel in performance of the Services unless such personnel
cease to employed by Halcyon. Notwithstanding the foregoing, if the
Company identifies an issue with any Halcyon personnel, Halcyon
shall promptly meet with the Company and work to resolve the
problem as mutually agreed by the parties (including, as necessary,
reassigning such personnel off the Services). For purposes of this
Agreement, with prior written consent of the Company, Halcyon may
perform the Services through its affiliates and their personnel
provided that such affiliates shall be subject to the terms of this
Agreement and Halcyon shall be liable for all acts and omissions
thereof. For as long as the following conditions are satisfied,
Company hereby consents that Halcyon may perform Services hereunder
through its offshore affiliate, Halcyon Technologies Pvt. Ltd.: (1)
that certain Independent Contractor Work for Hire & Assignment
Agreement by and between Halcyon and Halcyon Technologies Pvt.
Ltd., in the form attached hereto as Exhibit B (the "Subcontractor Invention Assignment
Agreement") remains in full force and effect, (2) neither
Halcyon, nor to the knowledge of Halcyon after due inquiry, Halcyon
Technologies Pvt. Ltd. are in breach of the Subcontractor Invention
Assignment Agreement, and (3) Halcyon Technologies Pvt. Ltd. does
not sub-subcontract the performance of the Services to any other
party.








2.3.

Independent Contractor Status.
Neither Halcyon nor any of its personnel shall be considered
employees or agents of the Company. As between the Company and
Halcyon, Halcyon shall be solely responsible for payment of any and
all unemployment, social security, and other payroll related taxes,
worker's compensation premiums and any other comparable taxes,
premiums or payments for its employees and agents, as applicable,
including any related assessments and contributions required by
law. Halcyon and its personnel shall not be eligible for any of the
Company's employee benefit programs, for sick or vacation leave,
retirement benefits, worker's compensation benefits or unemployment
benefits, and the Company shall not be liable for the payment of
same to any government or agency.







 

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2.4.

Subcontracting. Halcyon may not
subcontract any of its obligations under this Agreement without the
Company's prior written consent. In any event, Halcyon shall be
liable for all acts and omissions of its subcontractors and such
subcontractors shall be subject to all provisions applicable to
Halcyon and Halcyon's personnel hereunder including, without
limitation, Sections
2.3, 5, and
7.1.








3.

Payment
Terms








3.1.

Fees. Except as otherwise
agreed by the Parties in writing for specific Services, all
Services shall be performed on a time and materials basis.
Halcyon's initial hourly rates are specified in Exhibit A.
After the first year of the Term, and annually thereafter, Halcyon
and the Company shall agree on such rates, provided, however, the
rates may not be higher than one hundred ten percent (110%) of the
immediately preceding year's rates.








3.2.

Expenses. The Company shall
reimburse Halcyon for any pre-approved out-of-pocket or reasonable
Company-requested travel expenses in connection with performance of
the Services. Halcyon shall use commercially reasonable efforts to
minimize such out-of-pocket expenses. Notwithstanding the foregoing or anything else
contained in this Agreement, in no event shall license fees or
royalties incurred by Halcyon be a reimbursable expense.








3.3.

Invoices. Halcyon shall invoice
the Company on a monthly basis for all work actually performed
during the preceding month. Each invoice shall be in a form
reasonably agreed upon by the Parties, including detail reasonably
sufficient to enable the Company to verify the calculation of fees
due thereunder. All fees and expenses are payable in U.S. dollars.
The Company shall pay all undisputed invoices within thirty (30)
days of receipt thereof.








3.4.

Taxes. Halcyon is responsible
for any and all taxes
in connection with the Services including, without limitation,
income, payroll, sales, use, gross receipt or other taxes imposed
upon Halcyon in connection with this Agreement.








3.5.

Records; Inspection. Halcyon
shall maintain complete and accurate records relating to the
Services and the performance of its duties hereunder. All records
shall be maintained by Halcyon for at least three (3) years after
the termination of this Agreement, and shall at all reasonable
times be available for inspection or audit by the Company or its
representatives. Halcyon shall, upon a request by the Company,
promptly prepare and deliver to the Company and its representatives
reports regarding its activities and expenses in connection with
this Agreement. If the Company discovers that Halcyon has
overcharged the Company by more than five percent (5%) with respect
to any invoice, then Halcyon shall refund or credit the Company
with the amount of such overcharge already paid by the Company,
correct and resubmit all relevant invoices not yet paid by the
Company, and reimburse the Company for the cost of the
inspection.







 

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4.

Term;
Termination








4.1.

Initial Term; Renewals. The
initial term of this Agreement shall run for a period of
twenty-four (24) months from the Effective Date ("Initial Term").
Thereafter, this Agreement shall automatically renew for
additional, consecutive twelve (12) month renewal periods unless
either Party provides the other Party notice of non-renewal at
least ninety (90) days prior to expiration of the then current term
or it is terminated pursuant to Section 4.2 or 4.3 below. The initial term and all
renewal terms are collectively referred to hereinafter as the
"Term."








4.2.

Termination for Cause. Either
Party may terminate this Agreement upon written notice if the other
Party materially breaches any of its obligations and fails to cure
such breach within thirty (30) days of notice thereof. Either Party
may terminate this Agreement immediately if the other party makes a
general assignment for the benefit of creditors, is subject of a
petition for bankruptcy, has a receiver appointed or is otherwise
declared insolvent or if the Company is liquidated. The Company may
terminate this Agreement immediately by written notice to Halcyon
if Halcyon violates any applicable law in the performance of the
Services.








4.3.

Other Termination. Company and
Halcyon may mutually agree in writing to terminate this Agreement
at any time. The Company or Halcyon may terminate this Agreement or
any Services hereunder at any time after the Initial Term upon
ninety (90) days' prior written notice to the other.








4.4.

Effect of Termination. In the
event of termination, Halcyon shall immediately deliver to the
Company all Company materials, deliverables, databases,
documentation and any other work in progress developed or then in
development by Halcyon. With respect to software, such materials
shall be delivered in both source code and object code formats.
Halcyon shall also return all Confidential Information, as defined
below, to the Company.








5.

Ownership








5.1.

Intellectual Property Rights.
Intellectual Property Rights means all or any of the following: (a)
patents, patent disclosures, and inventions (whether patentable or
not); (b) trademarks, service marks, trade dress, trade names,
logos, corporate names, and domain names, together with all of the
goodwill associated therewith; (c) copyrights and copyrightable
works (including computer programs), mask works, and rights in data
and databases; (d) trade secrets, know-how, and other confidential
information; and (e) all other intellectual property rights, in
each case whether registered or unregistered and including all
applications for, and renewals or extensions of, such rights, and
all similar or equivalent rights or forms of protection provided by
applicable law in any jurisdiction throughout the
world.







 

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5.2.

Work Product. Halcyon hereby
agrees that all items delivered by Halcyon to the Company and all
information and Intellectual Property Rights arising from Halcyon's
performance of the Services for the Company (such as ideas,
technology, software, databases, data, inventions, concepts,
designs, discoveries, developments, media, content, improvements
and innovations, whether or not patentable or reduced to practice)
conceived, made or developed by Halcyon whether alone or together
with others, during the course of performing the Services are and
shall be the sole and exclusive property of the Company. All of the
rights and things described in the foregoing sentence and
Intellectual Property Rights shall be defined, collectively, as the
"Halcyon Work Product." Halcyon agrees that all Halcyon Work
Product is created as a "work made for hire" for the Company
as defined in Section 101 of the
Copyright Act of 1976. To the extent any Halcyon Work
Product does not qualify as, or otherwise fails to be, "work made
for hire", Halcyon hereby gives, transfers and assigns to the
Company all right, title and interest in and to the Halcyon Work
Product, including all Intellectual
Property Rights therein, and hereby assigns to the Company
or waives any so-called "moral rights" or rights of droit moral in the
Halcyon Work Product, to the extent permitted by law. Such
assignments are perpetual, worldwide and irrevocable. Halcyon
agrees to, and to cause its personnel to, execute and deliver such
additional documents and take such additional reasonable actions as
the Company deems necessary or convenient to perfect or evidence
the Company's ownership of the Halcyon Work Product or to enable
the Company to record this Agreement and/or secure rights of
copyright and/or letters patent in its name, or otherwise to
enforce its rights in the Halcyon Work Product in any country
throughout the world or otherwise carry out the provisions of this
Section
5.2.








5.3.

Company Materials. Halcyon
acknowledges and agrees that all software, content, equipment and
other materials provided by the Company to Halcyon in connection
with this Agreement, including, without limitation, the Technology
and all intellectual property rights related thereto, shall remain
the exclusive property of the Company. Nothing in this Agreement
shall be deemed to grant Halcyon any right or title in such
materials and Halcyon shall use such materials solely to provide
the Services to the Company hereunder.








5.4.

Third Party Materials. Halcyon
shall not, and shall ensure that its personnel do not, incorporate
any third party materials (including, without limitation, open
source software, freeware, shareware, so called "public domain"
materials, etc.) into any deliverables or Halcyon Work Product
hereunder or into the Company materials (including, without
limitation, the Technology) without the Company's prior written
consent. In any event, Halcyon shall not incorporate into any
deliverable (or otherwise combine, compile or otherwise integrate
the Technology with) any "open source" software that is subject to
a license (e.g., the GPL or Affero GPL) that could: (a) require
divulgement to any third party of any source code that is part of
the Company's Technology or other products; (b) grant a license to
any Company intellectual property for purpose of derivative works;
or (c) grant a license to any third party to redistribute any
Company intellectual property at no charge.







 

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5.5.

Pre-Existing Halcyon Materials.
In addition, Halcyon shall not incorporate any Halcyon materials
developed independent of Halcyon's work for the Company or NextGen
Dealer Solutions, LLC as the Company's predecessor in interest into
any deliverables, Halcyon Work Product or Company materials without
the Company's prior written consent. In the event that Halcyon
incorporates such independently developed or pre-existing Halcyon
materials (or any other Halcyon know-how or other intellectual
property), Halcyon hereby grants to the Company a perpetual,
worldwide, sublicensable, transferrable, royalty-free, irrevocable
license to use, reproduce, perform
(publicly or otherwise), display (publicly or otherwise), modify,
improve, create derivative works of, distribute, import, make, have
made, sell, and offer to sell and otherwise exploit
for all or any purposes
whatsoever such Halcyon materials and Intellectual Property
Rights in connection with the Company's products and
services.








6.

Warranties;
Covenants








6.1.

Warranties. Halcyon represents,
warrants and covenants that:








6.1.1.

the Services will
be performed in a timely, competent and workmanlike manner by
individuals of appropriate training and experience, and that all
work will meet or exceed industry standards and the Company's
specifications;








6.1.2.

the deliverables
and Halcyon Work Product created or contributed by Halcyon
hereunder do not and will not violate or infringe upon the rights
of any third party, including without limitation, Intellectual
Property Rights or other proprietary rights of any
kind;








6.1.3.

(i) Halcyon and its
affiliates have obtained and will obtain written confidentiality, work-for-hire, and intellectual
property rights assignment agreements substantially in the
form provided to the Company giving
the Company rights consistent with those set forth herein
from all personnel, employees, independent contractors,
consultants, subcontractors and co-developers of any rights they
may have in the Technology, any of the deliverables or Halcyon Work
Product, (ii) no person that has developed or created or will
develop or create on Halcyon's behalf any software, code or other
copyrightable work for the Company retains or will retain any
rights, interest or title in the Technology or any software, code
or other copyrightable work made part thereof and (iii) prior to
the assignment set forth in Section 5.2 above, Halcyon and
its affiliates did not transfer, and will not transfer, any right
or interest in the foregoing (including, without limitation, a
license) to any third party;







 

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6.1.4.

except as agreed in
writing by the Parties, Halcyon has not incorporated into the
deliverables or any other software serviced under this Agreement
any hidden or otherwise undocumented screens or other functions; or
secret or otherwise undocumented sounds, images or other features
unless and only to the extent that the same have been expressly
approved in writing to the Company; and








6.1.5.

the deliverables
and Halcyon Work Product provided by Halcyon hereunder do not, and
shall not, contain any programming devices (e.g., viruses, key
locks, etc.) which would (a) cause an unforeseen disruption in the
performance of the software or any part of the network connected to
the software, or (b) permit Halcyon personnel or other third
parties to access the software or any of the Company's equipment
connected to the software without the Company's
authorization.








6.2.

Security. Halcyon shall use
commercially reasonable efforts to protect the physical security
and electronic security of the equipment utilized to provide the
Services to the Company, including by using anti-virus, security
and firewall technology commonly used in the industry.








6.3.

Export. In the event that
Halcyon elects to use non-U.S. citizens or other offshore resources
to perform any Services hereunder, Halcyon shall at all times be
responsible for related regulatory compliance issues including,
without limitation, obtaining any relevant export/import licenses
or regulatory approvals. Software, Technology and other technical
information hereunder may be subject to the export and re-export
laws and regulations of the United States and other
jurisdictions.








6.4.

Insurance. Throughout the Term,
Halcyon shall maintain commercially reasonable insurance in
accordance with industry standards and regulatory requirements,
including, without limitation: (i) comprehensive commercial general
liability insurance; (ii) worker's compensation insurance as
required by the jurisdictions applicable to all personnel
performing the Services; (iii) professional errors & omissions
insurance; and (iv) cyber liability insurance.








6.5.

Liens. Halcyon shall not
encumber or permit a lien on any work-in-progress, code, software
or other deliverables included in the Services without the
Company's prior written consent. The Company will receive good and
valid title to all Halcyon Work Product, free and clear of all
encumbrances or liens of any kind.








7.

Confidentiality;
Non-Compete








7.1.

Halcyon
acknowledges that it will have access to certain confidential
information of the Company and its customers concerning their
business, plans, employees, and other information held in
confidence by the Company ("Confidential Information").
Confidential Information includes all information in tangible or
intangible form regarding the Company, including the information
that (a) relates to the Company's products and services (including,
without limitation, the Technology), (b) relates to the Company's
customers, or (c) is otherwise marked or designated as confidential
or that, under the circumstances of its disclosure, should be
considered confidential. Confidential Information also includes
this Agreement and all services provided by Halcyon to the Company.
Halcyon agrees that it will not use in any way, for its own account
or the account of any third party, except as necessary to meet its
obligations under this Agreement, nor disclose to any third party
(except as required by law or to that party's attorneys,
accountants and other advisors as reasonably necessary), any of the
Company's Confidential Information and will take reasonable
precautions to protect the confidentiality of such information, at
least as stringent as it takes to protect its own Confidential
Information. Halcyon shall require all of its personnel involved in
the Services to sign written confidentiality agreements that are at
least as strict as the confidentiality requirements of this
Section 7.1, and
Halcyon shall remind each individual of his/her confidentiality
obligations upon termination of such individual's employment with
Halcyon.







 

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7.2.

Information will
not be deemed Confidential Information hereunder if such
information: (i) is known to Halcyon prior to receipt from the
disclosing party directly or indirectly from a source other than
NextGen Dealer Solutions, LLC, its representatives or another third
party having an obligation of confidentiality to the disclosing
party; (ii) becomes known (independently of disclosure by the
disclosing party) to the receiving party directly or indirectly
from a source other than one having an obligation of
confidentiality to the disclosing party; (iii) becomes publicly
known or otherwise ceases to be secret or confidential, except
through a breach of this Agreement by Halcyon or its
representatives or sub-contractors; or (iv) is independently
developed by Halcyon after the date of this Agreement. Halcyon may
disclose Confidential Information pursuant to the requirements of a
governmental agency or by operation of law, provided that it gives
the Company reasonable prior written notice sufficient to permit
the disclosing party to contest such disclosure.








7.3.

Halcyon agrees that
during the Term and for a further period of two (2) years
thereafter, Halcyon and its affiliates shall not directly or
indirectly (i) engage in any Restricted Business or (ii) assist,
provide any services or any technology, software or other materials
to any third party engaged in any Restricted Business. If requested
by the Company, Halcyon shall require all of its personnel involved
in providing the Services to sign a written non-competition
agreement on substantially the same terms as the preceding
sentence. "Restricted Business" means (i) any business that
provides software programs or applications that provide inventory
management to the powersports, recreational vehicle, or marine,
industries (which includes, without limitation, motorcycles,
all-terrain vehicles, and personal watercraft), including all
ancillary functionality; and (ii) any other business in which the
Company is engaged or actively pursuing at the applicable time of
determination for which the Company has engaged Halcyon to provide
software development services pursuant to an executed services
agreement; provided, however, that a Restricted Business shall not
include any business disclosed on Schedule 7.3 hereto, in the case
of a business referred to in clause (i); and, in the case of a
business referred to in clause (ii), that it was engaged in and had
commercialized without violation of this Section 7.3 prior to the
time at which the Company first engaged in or began to actively
pursue that otherwise Restricted Business. Following a termination
of this Agreement, the phrase "applicable time of determination"
shall mean the date of termination.







 

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7.4.

Notwithstanding
anything contained in this Services Agreement to the contrary, upon
a monetary default under the Subordinated Secured Confessed
Judgement Promissory Note executed on the date hereof by the
Company in favor of NextGen Dealer Solutions, LLC, and the failure
to cure the default after the expiration of any applicable cure
period, the restrictive covenants contained in Section 7.3 that
restrict Halcyon shall lapse and be of no further force or
effect.








7.5.

Arbitration. Any dispute
whatsoever arising as to the interpretation of any provision of
this Agreement or as to the rights, duties, or obligations of any
of the parties hereto in connection with any provision of this
Agreement, as well as any and all statutory and tort claims arising
out of the same operative facts (a "Dispute"), shall be settled in
accordance with the JAMS Comprehensive Arbitration Rules and
Procedures (the "Rules"), and judgment on the award rendered by the
arbitrator may be entered in any court in the State of Delaware
having jurisdiction thereof, subject to the following
conditions:








7.5.1.

The arbitration
shall be held in Wilmington, Delaware and in accordance with the
Rules, except that pre-hearing discovery between the parties shall
be limited to the exchange of documents.








7.5.2.

The arbitration
shall be heard by a single arbitrator who shall be selected
mutually by the parties within 10 days of receipt of a notice of
arbitration of a Dispute or, if the parties fail to select an
arbitrator by mutual agreement within such 10 day period, by JAMS
in accordance with the Rules. Any arbitrator selected by JAMS shall
be an attorney or retired judge experienced in business
matters.








7.5.3.

The hearings shall
be transcribed by a certified court reporter.








7.5.4.

The arbitrator
shall issue a reasoned award, which shall include a memorandum
opinion discussing the facts and legal grounds supporting the
award. The arbitrator appointed, rather than a court, shall
determine any and all challenges and disputes with respect to the
arbitrability of a Dispute and the scope of the arbitration
obligation under this Agreement. Furthermore, the arbitrator shall,
rather than a court, determine all challenges to the enforceability
of this Agreement and the obligation to arbitrate a
Dispute.







 

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7.5.5.

Each party to any
arbitration proceeding hereunder shall bear its own expenses in
connection with such arbitration, including those of attorneys and
experts, and each party shall bear 50% of the costs of the
arbitrator and arbitration proceeding, e.g., the arbitration
facilities and transcript. Failure to pay the fees of JAMS and the
arbitrator when due shall constitute a separate breach of this
Agreement for which the damages shall be awarded by the arbitrator
and shall consist of the reasonable attorneys' fees and costs
incurred to obtain payment of such fees. Notwithstanding anything
in this Section 7.4.5 to the contrary, the prevailing party in any
such proceeding (as determined by the arbitrator) shall be entitled
to recover from the non-prevailing party all fees, costs and
expenses, including reasonable attorneys' fees and the cost of
arbitration, incurred in prosecuting the dispute.








7.5.6.

 The parties
hereby exclude any right of appeal to any court on the merits of a
Dispute. The provisions of this Section 7.4 may be enforced in
any court having jurisdiction over the award or any of the parties
or any of their respective assets, and judgment on award (including
without limitation equitable relief required for enforcement of the
award) may be entered in any such court.








7.5.7.

The arbitration of
a Dispute under this Section 7.4 shall be governed,
construed and enforced solely pursuant to the United States
Arbitration Act, 9 U.S.C. Section 1 et seq.








8.

Miscellaneous








8.1.

Relationship of the Parties.
Halcyon agrees to perform the Services hereunder solely as an
independent contractor. The parties to this Agreement recognize
that this Agreement does not create any actual or apparent agency,
partnership or relationship of employer and employee between the
parties. Halcyon is not authorized to enter into or commit the
Company to any agreements, and Halcyon shall not represent itself
as the agent or legal representative of the Company.








8.2.

Successors and Assigns. This
Agreement is binding upon and inures to the benefit of the parties
hereto and their respective successors and assigns, but is not
assignable by any party without the prior written consent of the
other parties hereto; provided, however, that the Company may
assign any or all of its respective rights or obligations hereunder
to any of its respective lenders as collateral security, or in
connection with a sale of all or substantially all of its assets
and business in either case, without the consent of
Halcyon.








8.3.

Third Party Beneficiaries. This
Agreement does not benefit or create any right or cause of action
in or on behalf of any Person other than the parties
hereto.







 

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8.4.

Notices. Any notice or other
communication provided for herein or given hereunder to a party
hereto must be in writing, and (i) sent by facsimile transmission,
(ii) delivered in person, (iii) mailed by first class registered or
certified mail, postage prepaid, (iv) sent by electronic mail or
(iv) sent by Federal Express or other overnight courier of national
reputation, addressed as follows:






If to
Company:


Smart
Server, Inc.


4521
Sharon Road


Suite
370


Charlotte, NC
28211


Attn:
Steven Berrard


If to
Halcyon:


Halcyon
Consulting, LLC


1431
Greenway Drive


Suite
775


Irving,
TX 75038


Attn:
Kartik Kakarala


With a
copy to:


Offit
Kurman, P.A.


8171
Maple Lawn Boulevard


Suite
200


Maple
Lawn, MD 20759


Attn:
Glenn D. Solomon, Esquire


or to
such other address with respect to a party as such party notifies
the other in writing as above provided. Each such notice or
communication will be effective (i) if given by facsimile, when the
successful sending of such facsimile is electronically confirmed,
(ii) if given by any other means specified in the first sentence of
this Section 8.4
upon delivery or refusal of delivery at the address specified in
this Section 8.4.
Each such notice or communication shall be deemed to have been
received on the next Business Day if not received on a Business Day
or if required after 5 p.m. on a Business Day




8.5.

Complete Agreement. This
Agreement and the Annexes, Schedules and Exhibits and the other
documents delivered by the parties in connection herewith, contain
the complete agreement between the Parties hereto with respect to
the transactions contemplated hereby and thereby and supersede all
prior agreements and understandings among the Parties with respect
hereto and thereto.








8.6.

Indemnification. Halcyon shall
defend, indemnify, and hold harmless the Company and the Company's
affiliates, and each of their respective officers, directors,
employees, agents, successors, and assigns (each, a "Company Indemnitee") from and
against all any and all losses, damages, liabilities, deficiencies,
claims, actions, judgments, settlements, interest, awards,
penalties, fines, costs, or expenses of whatever kind, including
reasonable attorneys' fees, fees, and the cost of enforcing any
right to indemnification hereunder and the cost of pursuing any
insurance providers that are incurred by a Company Indemnitee
("Losses") arising out of or resulting from any third party claim,
suit, action, or proceeding (each, an "Action") that results
from:







 

11







 








8.6.1.

Halcyon's breach of
any representation, warranty, covenant, or obligation of Halcyon
(including any action or failure to act by any subcontractor that,
if taken or not taken by Halcyon, would constitute such a breach by
Halcyon) under this Agreement; or








8.6.2.

any negligence or
willful misconduct in connection with the performance or activity
required by or conducted in connection with this Agreement by
Halcyon or any of its subcontractors in connection with performing
Services under this Agreement.








8.7.

Captions. The captions
contained in this Agreement are for convenience of reference only
and do not form a part of this Agreement.








8.8.

Amendment. This Agreement may
be amended or modified only by an instrument in writing duly
executed by all Parties.








8.9.

Waiver. Any Party may extend
the time for the performance of any of the obligations or other
acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document
delivered pursuant hereto, or (c) waive compliance with any of the
covenants, agreements or conditions contained herein, to the extent
permitted by applicable Law. Any agreement to any such extension or
waiver will be valid only if set forth in a writing signed by the
Party granting such extension or waiver. No waiver by any Party of
any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to
any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such
occurrence.








8.10.

Governing Law; Consent to
Jurisdiction. This Agreement and the transactions
contemplated hereby, and all disputes between the parties under or
relating to this Agreement or the transactions contemplated hereby,
whether in contract, tort or otherwise, shall be governed by, and
construed and enforced in accordance with, the laws of the State of
Delaware, without regard to its rules of conflict of laws, and, as
applicable, U.S. federal law.








8.11.

Waiver of Jury Trial. EACH
PARTY TO THIS AGREEMENT HERETO HEREBY ACKNOWLEDGES AND AGREES THAT
ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH
PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH
PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND
(IV) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION
8.10.







 

12







 








8.12.

Severability. Any term or
provision of this Agreement that is invalid or unenforceable in any
jurisdiction will, as to that jurisdiction, be ineffective to the
extent of such invalidity or unenforceability without rendering
invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the
terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable,
the provision will be interpreted to be only so broad as is
enforceable.








8.13.

Counterparts; Electronic
Transmission. This Agreement may be executed in two or more
counterparts (any of which may be delivered by facsimile or
electronic mail transmission), each of which will be deemed an
original, but all of which together will constitute one and the
same instrument.








8.14.

Construction. The Parties
hereto have participated jointly in the negotiation and drafting of
this Agreement. If any ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties hereto, and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any of the provisions of this Agreement. The
words "include," "includes" or "including" (or any other tense or
variation of the word "include") in this Agreement shall be deemed
to be followed by the words "without limitation." When reference is
made in this Agreement to an Article, Section, Exhibit or Schedule,
such reference shall be to an Article, Section, Exhibit or Schedule
of this Agreement unless otherwise indicated. The words "hereof,"
"herein" and "hereunder" and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. The definitions
contained in this Agreement are applicable to the singular as well
as to the plural forms of such terms and to the masculine as well
as the feminine and neuter genders of such
terms.







 


 


 


 


 


 


 


 


 



 

13







 






[Signature
Pages Follow]


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 





                                                              









14








 






 


IN
WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the day and year first above written.


	
 Smart
Server, Inc.

 

By:/s/
Marshall Chesrown  


 


Name: Marshall
Chesrown   




 


Its: Chier Executive
Officer


 

	
 Halcyon
Consulting, LLC

 

By:
/s/ Kartik Kakarala


 


Name:
Kartik
Kakarala

 


Its:
CEO                  
     




 







 


 


 


 


 


 


 



[Signature Page to Smart Server, Inc. Services Agreement with
Halcyon Consulting, LLC]





                                        









15








 






EXHIBIT
A


Technology:


The
"Technology" refers to the inventory management, functionality
software product for the powersports, recreational vehicles and
marine industries (which includes, but is not limited to,
motorcycles, personal watercraft, all-terrain vehicles and personal
watercraft) commonly known as CyclePro and all of its variants held
by Halcyon, its affiliates or subsidiaries, which includes but is
not limited to all designs, source code, databases, user
interfaces, functionality, documentation, brands, media, logos,
artwork, domain names, business processes and derivative works that
may be known by other names, as well as any updates, enhancements,
modifications, adaptations, error corrections or improvements
thereto developed under this Agreement or otherwise provided by the
Company to Halcyon to work on under this Agreement.


Services:


Development
Services




●

Halcyon shall
initially make up to 15 full time equivalent resources available to
the Company to perform software design, development, corrections,
testing, delivery, installation, configuring, integration and
customization upon request. Halcyon
shall ensure all Technology complies with the specifications
therefor.








●

The Company may
increase or decrease the utilization of such resources — or
the allocation of such resources (e.g., switching developers for
quality assurance personnel) upon ten (10) business days' prior
written notice.








●

Halcyon personnel
will work side-by-side with Company personnel and contractors upon
request by, and at the direction of, the Company. Such direction
shall include working on developments within the Company's product
roadmap for the Technology.






Documentation




●

Prior to or concurrently with the delivery of any
software hereunder, Halcyon shall provide the Company with complete and
accurate documentation for such software, such documentation
including, but not limited to, all user manuals, operating manuals,
technical manuals, and any other instructions, specifications,
documents, and materials, in any form or media, that describe the
functionality, installation, testing, operation, use, maintenance,
support, and technical and other components, features, and
requirements of any software that, collectively, includes all such
information as may be reasonably necessary for the effective
installation, testing, use, support, and maintenance of the
applicable software by the Company, including the effective
configuration, integration, and systems administration of the
software and performance of all other functions set forth in the
specifications.









                                                              
















 






On-Going Support
Services




●

Halcyon shall
devote staff to address bugs identified in the Technology by the
Company.








●

With respect to
bugs, errors or other performance issues that the Company
identifies as critical (i.e., materially impacting performance of
the Technology and operation of the Company or its customers),
Halcyon shall, upon the Company's request, work to address the bug
within 24 hours of becoming aware of the issue and to resolve the
bug as soon as is reasonably practical.









                                                           
















 






Hourly
Rates:


The
following * rates apply for the * of the Term: *


*
Portions of this
Exhibit have been omitted and filed separately with the Securities
and Exchange Commission pursuant to a request for Confidential
treatment