EXHIBIT 10.13
Website Development Agreement
This Agreement is between xXxxxxx.xxx ("eRealty") and Houston InterWeb Design,
Inc. ("HIWD") for the design and development of websites for Service
Providers of eRealty.
1. Scope of Services. eRealty will identify and refer to HIWD certain
Service Providers ("Customers") of eRealty who desire assistance in the design
and development of websites or other internet advertising solutions. HIWD shall
provide to eRealty and the Customer customized internet advertising solutions as
required by the Customer, including but not limited to the following:
(a) The design, development, implementation, operation, maintenance
and updating of Customer-branded stand-alone Web Sites on the World Wide
Web portion of the internet ("Customer Sites");
(b) Such other customized internet advertising solutions as may be
specifically agreed between each Customer and HIWD in separate agreements
to be negotiated with each Customer.
(c) Any ongoing maintenance or modifications associated with the
above-referenced services, and all upgrades, enhancements, developments
and new revisions to the products and software related to the development
of Customer's Sites, provided the sites are hosted on HIWD servers.
(d) The Site shall incorporate certain materials provided by HIWD
which include, without limitation, computer software (in object or source
code form), script, programming code, data, information, HTML code,
trademarks, images, illustrations, graphics, multimedia files and/or text
("HIWD Content"). The Site shall also incorporate the materials, if any,
provided by eRealty and Customers, including, without limitation, trade
or service marks, images, illustrations, graphics, multimedia files and/or
text (eRealty Content"), provided that eRealty and Customers deliver such
eRealty Content to HIWD promptly and in acceptable media and/or electronic
file format(s).
2. Rates. HIWD's services will be billed to eRealty's Service Providers
at the rates set forth on Exhibit A attached hereto. Rates for customized or
non-scheduled services shall be billed on terms and conditions as may be
separately agreed between Customer and HIWD. HIWD agrees to keep the rates it
charges to eRealty under this Agreement confidential.
In consideration for the services to be performed by eRealty, HIWD will
agree to pay eRealty a commission as follows:
1. ***% of the set-up fees collected for the sale of each basic three
page SiteBlazer site or additional SiteBlazer features and any recurring monthly
hosting fees, or
2. ***% commission on fees collected for the referral of all custom
design services up to $**********, or
3. ***% commission on fees collected for the referral of all custom
design services from $********* to $*********, or
4. ***% commission on fees collected for the referral of all custom
design services from $********* and up.
3. Invoicing. All Customer invoicing shall be handled by HIWD
4. Term. The term of the Agreement shall be for a period of one year,
commencing on July 15, 2000 and shall automatically renew for successive one
year terms unless earlier terminated as provided herein. The Agreement shall be
terminable by either party on thirty days written notice with or without cause,
and terminable by either party immediately for cause, which shall include, but
not be limited to, non-payment, default in services, or any material breach of
the Agreement. The Agreement shall also terminate if an administrator, receiver
or liquidator is appointed in connection with HIWD, or HIWD is otherwise
bankrupt, files for bankruptcy or is insolvent.
5. Rights in Data and Works.
(a) Exclusive of eRealty Content, HIWD shall retain all right, title and
interest (including copyright and other proprietary or intellectual
property rights) in HIWD Content, all legally protectable elements, or
derivative works thereto, whether or not paid for wholly or in part by
eRealty or Customer, and whether or not developed in conjunction with
eRealty or Customer.
(b) All copyrights, trademarks, trade dress and other proprietary
rights in text, data, images or related materials furnished by eRealty
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("eRealty Materials") are exclusively owned by eRealty , and all rights
are expressly reserved by eRealty . Neither HIWD nor the Customer shall
have the right to use any eRealty trademarks, trade names, slogans or
logos without eRealty 's prior approval.
(c) eRealty shall retain all right, title and interest (including
copyright and other proprietary or intellectual property rights) in
eRealty Content.
(d) HIWD may place copyright and/or proprietary notices, including
hypertext links within the HIWD Content as incorporated within and on the
Site. eRealty or Customer may not alter or remove such notices without
HIWD's written permission.
(e) eRealty or Customer shall not provide to HIWD any Content that may be
obscene, defamatory, harassing, grossly offensive, malicious, or that
actually or potentially infringes or misappropriates the copyright,
trademark, or proprietary or intellectual property right of any person.
6. Warranties.
(a) HIWD warrants that all services to be performed under the
Agreement will be rendered using sound, professional practices and in
a competent and professional manner by knowledgeable, trained and
qualified personnel.
(b) HIWD warrants that all Deliverables developed by HIWD for any
Customer hereunder shall conform to all specifications provided in the
agreement with each such Customer, and will operate materially in
accordance with those specifications upon delivery. Except as
expressly otherwise provided in any such agreement or in this
Agreement, HIWD does not warrant that its services or Deliverables
will be uninterrupted or error free.
(c) HIWD warrants that all software provided by HIWD and all
Deliverables shall be Year 2000 Compliant. All Customer Sites
developed by HIWD will be virus-free on delivery and will be
accessible by Internet users twenty-four (24) hours per day, seven (7)
days per week, provided however, in the event the host site used by
HIWD is non-operational, HIWD will not be in breach of this Agreement
so long as HIWD acts in a prudent and customarily reasonable manner to
work to restore access.
(d) eRealty represents and warrants to HIWD that: (i) eRealty has the
power and authority to enter into and perform its obligations under
this Agreement; (ii) eRealty and Customer Content does not and shall
not contain any content, materials, link, advertising or services that
actually or potentially violate any applicable law or regulation or
infringe or misappropriate any proprietary, intellectual property,
contract or tort right of any person; and (iii) eRealty and Customer
own their respective Content and all proprietary or intellectual
property rights therein, or has express written authorization from the
owner to copy, use and display the Content on and within the Site.
(e) EXCEPT AS EXPRESSLY STATED AT SECTION 6(a-c), HIWD MAKES NO OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR
PURPOSE, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT.
7. Non-Solicitation Agreement. Each party agrees that it will not attempt to
hire any employee of the other as an employee or subcontractor during the term
of the Agreement or for a period of one year after the Agreement has terminated,
unless agreed to in writing by both parties.
8. Exclusivity. eRealty and HIWD agree that this Agreement is non-exclusive
as it relates to HIWD and the services it provides hereunder. HIWD may provide
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similar services to customers who were not introduced to HIWD by eRealty.
eRealty may not engage companies providing similar services as HIWD, during the
term of the agreement, to provide the same or similar services comtemplated by
the agreement. HIWD will be the exclusive provider of web design, development
and hosting services to eRealty's Service Providers.
9. Confidentiality. Each party shall agree not to use, disclose, sell,
transfer or display the confidential information of the other party.
"Confidential information" means proprietary information of a party not
generally known by non-party personnel, used in that party's business, and the
disclosure of which would be detrimental to that party. Confidential
information shall include computer scripts, software, financial, marketing and
business information, customer data, strategic plans and business plans, and the
like. HIWD agrees and acknowledges that the rates it charges to eRealty under
this Agreement are confidential. Upon termination or expiration of this
Agreement, each party shall immediately deliver to the disclosing party all
confidential information and shall cease all use of the confidential
information.
10. Indemnification.
(a) eRealty agrees to indemnify, hold harmless and defend HIWD and its
directors, officers, employees and agents from and against any action,
claim, demand or liability, including reasonable attorney's fees and
costs, arising from or relating to: (i) eRealty's breach of this
Agreement; (ii) the negligence or willful misconduct of eRealty; or (iii)
any allegation that eRealty or Customer Content infringes a third person's
copyright or trademark right, or misappropriates a third persons trade
secret. eRealty agrees that HIWD shall have the right to participate in
and control the defense of any such claim through counsel of its own
choosing.
(b) HIWD agrees to indemnify, hold harmless and defend eRealty and its
directors, officers, employees and agents from and against any action,
claim, demand or liability, including reasonable attorney's fees and
costs, arising from or relating to any allegation that the HIWD Content
infringes a third person's copyright or trademark right, or
misappropriates a third person's trade secrets.
11. Independent Contractor. The relationship of the parties shall be that of
an independent contractor. HIWD has the right to control the manner and means
of performing its services and delivering the Deliverables, and HIWD shall bear
all expenses attendant thereto. No agency shall be created by the Agreement.
Neither party has the power or authority to represent, act for, bind, or
otherwise create or assume any obligation on behalf of the other party for any
purpose whatsoever.
12. Notice. Any notice required to be given under this Agreement shall be in
writing and shall be duly served when it shall be hand delivered to the
addresses set forth below, or three (3) days after mailing if written notice has
been deposited, duly registered or certified, return receipt requested, in a
post office or official depository under the care and custody of the United
States Postal Service addressed to the other party at the following addresses:
To: Houston InterWeb Design, Inc. To: xXxxxxx.xxx
0000 Xx. Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxx, CEO Attn:
13. General Terms and Conditions.
(a) The Agreement shall be governed by Texas law. Venue of any dispute
relating to this Agreement shall be in Houston, Xxxxxx County, Texas
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(b)The Agreement is not assignable by either party without the express
written consent of all parties.
(c) Conditions of force majeure shall excuse any delay or non-
compliance beyond the party's control, upon prompt notice.
(d) Any partial invalidity of any term of the Agreement shall not
affect the remainder of the Agreement.
(e) This Agreement is the complete and entire agreement of the
parties, superceding any previous agreements or discussions, and no
supplements or amendments shall be recognized except as in writing and
signed by both parties.
SIGNED at Houston, Texas, this 26 day of July, 2000.
XXxxxxx.xxx
Name: /s/
-------------------------------------
Title: President and CEO
HOUSTON INTERWEB DESIGN, INC.
Name: /s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxx
Title: CEO
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