EXHIBIT 10.17
DEVELOPMENT SERVICES AGREEMENT
This Development Services Agreement (the "Agreement") is entered into as
of March 31, 2000 (the "Effective Date") by and between XXxxx.xxx, a Delaware
corporation with offices at 0000 X. Xxxxxxx'x Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, XX 00000, ("XXxxx.xxx"), and American Psych Systems, Inc. with
offices at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000 ("Client").
This Agreement covers the purchase and license of consulting, development
and other services from XXxxx.xxx, pursuant to orders placed by Client and
accepted by XXxxx.xxx after the Effective Date.
This Agreement includes the following attachments, which are incorporated
herein by this reference:
Attachment 1 XXxxx.xxx Development Services
Schedule 1 Professional Services Agreement
Schedule 2 Contract Fee Structure and Agreements
Schedule 3 Payment Terms
Schedule 3.2 Licensed Products
Any notice required or permitted under this Agreement will be in writing
and delivered to the address set forth below, or to such other notice address as
the other party has provided by written notice.
THIS AGREEMENT, INCLUDING ALL THE DOCUMENTS REFERENCED HEREIN, AND THE
ATTACHMENTS LISTED ABOVE, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING
OF THE PARTIES WITH REFERENCE TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ALL
PRIOR SALES PROPOSALS, NEGOTIATIONS, AGREEMENTS AND OTHER REPRESENTATIONS OR
COMMUNICATIONS, WHETHER ORAL OR WRITTEN. IF THERE IS ANY CONFLICT BETWEEN THE
TERMS AND CONDITIONS OF CLIENT'S PURCHASE ORDER (OR ANY OTHER PURCHASE OR SALES
DOCUMENT) AND THE TERMS AND CONDITIONS OF THIS AGREEMENT, THIS AGREEMENT SHALL
CONTROL. THIS AGREEMENT MAY BE MODIFIED, REPLACED OR RESCINDED ONLY IN WRITING,
AND SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF EACH PARTY.
AGREED:
XXxxx.xxx Client: American Psych Systems, Inc.
/s/ Xxx Xxxxxx /s/ Xxxxxxx Xxxxxxx
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(Authorized Signature) (Authorized Signature)
Xxxxxx Xxxxxx Xxxxxxx X. Xxxxxxx, M.D.
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(Printed Name) (Printed Name)
Sr. VP Sales & Bvs. Dev. CEO & President
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(Title) (Title)
5/3/2000 5/3/00
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(Date) (Date)
ATTACHMENT I
XXXXX.XXX DEVELOPMENT SERVICES
1. DEFINITIONS
1.1. "CONTENT" shall mean marketing collateral, data, text, audio files,
video files, graphics and other materials provided by Client or developed
hereunder for use with the Client Web Site, but excluding the XXxxx.xxx
Software.
1.2. "DEVELOPMENT SERVICES" shall mean design, development, and set-up
services as necessary to modify existing XXxxx.xxx technology, trade secrets and
know-how to produce the XXxxx.xxx Software and other elements of the Client Web
Site, and/or any other consulting services rendered hereunder as identified in
the appropriate schedules ("Schedule(s)") attached hereto.
1.3. "XXXXX.XXX SOFTWARE" shall mean all computer program code and other
results and proceeds of XXxxx.xxx's services hereunder (other than Content) that
are delivered by XXxxx.xxx to Client pursuant to this Agreement. Such XXxxx.xxx
Software shall be provided in object code form unless the parties mutually agree
in writing to delivery of source code.
1.4. "CLIENT WEB SITE(S)" shall mean the so-called "web page" site or
sites on the World Wide Web, for the public Internet or for corporate intranets
or extranets, to be developed or serviced by XXxxx.xxx hereunder, as identified
in the appropriate Schedule(s).
1.5. "REQUEST FOR PROPOSAL" or "APS RFP" shall mean collectively, the APS
Web-based EAP Functional Design Overview and Requirements Document, Project
Stage la, dated March 3, 2000, the APS Website Development RFP, Addendum:
Summary Specifications of Stages 1b, 2a, 2b, and 3, dated March 17, 2000, and
the additional questions dated March 17, 2000.
1.6 "XXXXX.XXX PROPOSAL" shall mean the XXxxx.xxx Proposal of Services for
American Psych Systems, dated March 24, 2000, inclusive of APS Project Stages
la, 1b, 2a, 2b and 3, as outlined in the APS REP.
2. SERVICES
2.1. DEVELOPMENT SERVICES. XXxxx.xxx shall render Development Services in
accordance with the requirements set forth in Schedules attached hereto. Each
Schedule for new services shall be successively numbered (e.g., 1, 2, etc.).
Each schedule shall be executed by the parties and shall be subject to the terms
and conditions of this Agreement. XXxxx.xxx shall provide qualified and trained
personnel to render such services and shall use reasonable commercial efforts to
meet the delivery schedule set forth in the applicable Schedules. Any additions,
deletions or other changes to a Schedule shall be mutually agreed to in writing
in advance by both parties and shall be memorialized in a revised Schedule
pursuant to the procedure set forth in Section 2.6 below for Change Orders. All
services shall be performed at XXxxx.xxx's offices unless otherwise agreed by
the parties. In the event that services are performed at Client's location,
Client shall provide XXxxx.xxx at no charge with all necessary facilities and
equipment, including without limitation, computer time
on Client's computers and office space, sufficient to render the services
contemplated hereunder. Client shall deliver to XXxxx.xxx all Content selected
by Client for incorporation into any Client Web Site in digitized format in
accordance with the delivery schedule set forth in the applicable Schedule(s).
In the event that Client fails to deliver the Content in accordance with the
delivery schedule, the development schedule shall be extended by the number of
days that delivery of the Content was delayed, unless XXxxx.xxx notifies Client
that this extension will not rectify XXxxx.xxx's scheduling interruption
resulting from Client's delay and such delay may also result in additional
charges to Client, in which case the parties shall mutually agree upon a new
delivery schedule and fees with respect to the rendition of the Development
Services.
2.2. ACCEPTANCE OF DELIVERABLES. Within fifteen (15) days after the
delivery to Client of any deliverable pursuant to any Schedule, Client shall
provide XXxxx.xxx with written notice of any failure of any deliverable to
materially conform to the functional specifications set forth in the applicable
Schedule, unless the problem or failure is not readily detectable at time of
testing due to the test platform configuration, the need for integration with
other components to readily detect failure, or non-compatibility with the
hosting environment. XXxxx.xxx and Client shall review the objections, and
XXxxx.xxx will use commercially reasonable efforts to correct any material
non-conformities with the functional specifications and provide Client with a
revised deliverable within fifteen (15) days, but in no event shall XXxxx.xxx
provide Client with a revised deliverable later than thirty (30) days from the
date XXxxx.xxx received written notice of Client's objections. Client shall have
deemed to have accepted the deliverable if XXxxx.xxx does not receive written
notice of Client's objections within said fifteen (15) day period. The failure
of Client to comply with the notice requirements set forth in this Section 2.2
shall not be considered a waiver of Client's right to raise the failure of the
deliverable to conform to the functional specifications to support a claim under
Section 8.2 hereof or a claim for damages as a result thereof.
2.3. DOMAIN NAME REGISTRATION SERVICES. If domain name registration
services are included in the Schedule, XXxxx.xxx shall use commercially
reasonable efforts to assist Client in registering an Internet domain name
selected by Client. Client will be solely responsible for all out-of-pocket
costs and all legal clearances regarding name selection and registration.
2.4 (Reserved)
2.5. HOSTING SERVICES. If Client desires to purchase hosting services from
XXxxx.xxx for the Client Web Site, the parties shall execute the then current
XXxxx.xxx Hosting Services Agreement, and XXxxx.xxx shall render hosting
services pursuant to the terms and conditions of such agreement.
2.6. CHANGE ORDERS. If Client desires to make changes to an existing
Schedule, the parties shall mutually agree upon an additional or revised
Schedule for each new Change Order. Each such Schedule shall be successively
numbered (e.g., 1.A, 1.B, etc.) and shall be executed by the parties. Any
revised Schedule(s) shall be subject to the terms and conditions of this
Agreement.
3. OWNERSHIP AND LICENSE RIGHTS
3.1. PROPERTY RIGHTS AND OWNERSHIP. The Client Web Site(s) and all other
results and proceeds of XXxxx.xxx's services hereunder, shall consist of, and
shall operate in conjunction with, multiple elements of intellectual property,
including without limitation the XXxxx.xxx Software and the Client Content. The
parties' respective rights to such elements shall be as set forth below. For
purposes of this Agreement, the term "ownership" shall refer to ownership of all
intellectual property rights including, but not limited to, all patent,
copyright, trade secret and trademark rights, as applicable, with respect to the
subject intellectual property.
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Intellectual Property Elements Ownership/Rights
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Client Content, including all Client Client has sole ownership.
Content that is modified by XXxxx.xxx
("Modified Content") and HTML files
that contain Client Content, and
modifications to Content as a result
of Client's usage of self-authoring
tools.
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Content created for Client by Client has sole ownership.
XXxxx.xxx and accepted and paid for
by Client, as well as commissioned
Content authored by third parties
specifically for use in connection
with this Agreement and paid for by
Client (e.g., original illustrations
or graphics).
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Domain name for Client Web Site. Client has sole ownership.
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Server usage report data/statistics Client has sole ownership of
generated by the XXxxx.xxx Software data/statistics, and
in form and substance as set forth in XXxxx.xxx has a license pursuant
the applicable Schedule or as mutually to Section 3.3 below.
agreed by the parties.
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Commercially available third-party Third parties have ownership, and
software that is incorporated into the Client shall be informed of all
XXxxx.xxx Software. third-party software that Client
may need to license at Client's
own expense.
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XXxxx.xxx Software developed by or XXxxx.xxx has sole ownership of
for XXxxx.xxx in connection with this such XXxxx.xxx Software. Client
Agreement for Client. shall be granted a license to use
the XXxxx.xxx Software as set
forth in Section 3.2.
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XXxxx.xxx supplied material developed XXxxx.xxx has sole ownership of
generally to support XXxxx.xxx such developed material. Client
products and/or service offerings shall be granted a license to use
(e.g. httpd configuration). the XXxxx.xxx Software as set
forth in Section 3.2 below.
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3.2. LICENSE TO CLIENT. XXxxx.xxx grants Client a non-exclusive,
non-transferable license to use the XXxxx.xxx Software on all Client, Client
partner or contractor machines necessary to achieve the objectives set forth in
the APS RFP, such as multiple servers in a farm or distributed backup centers in
object code version only to operate and display the Client Web Site in order for
end users to access the Client Web Site. Client may grant a sublicense to a
third party that Client engages to host the Client Web Site; provided, that such
third party agrees in writing to be bound by the license and confidentiality
restrictions set forth in this Agreement. Client is prohibited from duplicating
and/or distributing any XXxxx.xxx Software without the prior written consent of
XXxxx.xxx. Client may maintain a backup copy of the XXxxx.xxx Software, which
shall be used only if the installed copies are lost or destroyed or the hardware
on which the installed copy is installed becomes
inoperable, provided that the use of said backup copies is discontinued
immediately when the original hardware becomes operable.
Attached as Schedule 3.2 is a list of all third party products incorporated into
the XXxxx.xxx Software and for which Client must obtain a license to use.
3.3. LICENSE TO XXXXX.XXX. Client grants XXxxx.xxx a non-exclusive license
to use, copy, and modify the Content in connection with XXxxx.xxx's performance
of the Development Services. XXxxx.xxx may only use, copy, modify, distribute
and display server usage data and statistics generated by the XXxxx.xxx Software
with Client's prior written consent.
3.4. SUPPORTING DOCUMENTS. Each party agrees to execute any additional
documents deemed reasonably necessary to effect and evidence the other party's
rights with respect to the intellectual property elements set forth above.
3.5. NO REVERSE ENGINEERING. With respect to the matters set forth in this
Section 3, XXxxx.xxx reserves all rights not expressly granted hereunder.
Without limiting the foregoing, Client may not reverse engineer, reverse
assemble, decompile or otherwise attempt to derive the source code from the
XXxxx.xxx Software.
3.6. PROPRIETARY NOTICES. All copies of the XXxxx.xxx Software and other
XXxxx.xxx supplied materials used by Client shall contain copyright and other
proprietary notices (appropriately placed) in the same manner in which XXxxx.xxx
incorporates such notices in the XXxxx.xxx Software or in any other manner
requested by XXxxx.xxx. Client agrees not to remove, obscure or obliterate any
copyright notice, trademark or other proprietary rights notices placed by
XXxxx.xxx on or in the XXxxx.xxx Software.
3.7 ESCROW. Promptly after acceptance of the final deliverables specified
in Schedule 1 hereto (the "deliverables") to the Client, XXxxx.xxx shall
promptly deliver a copy of the source code of any additional XXxxx.xxx Software
necessary to run Client's Web Site in accordance with this Agreement ("Necessary
XXxxx.xxx Software") to the Escrow Agent as defined in the Escrow Agreement
attached hereto as Exhibit D and incorporated herein by reference.
In the event XXxxx.xxx ceases to conduct business operations, XXxxx.xxx shall
provide written notice to the Escrow Agent to deliver the source code of the
Necessary XXxxx.xxx Software to Client for use in accordance with the rights
granted thereto by Section 3.2 of this Agreement.
4. PAYMENT
4.1. DEVELOPMENT SERVICES. In consideration for the performance of the
Development Services, Client shall pay to XXxxx.xxx the amounts set forth in the
applicable Schedule, on the payment dates set forth in such Schedule. In the
event that XXxxx.xxx renders services at Client's location, Client shall pay the
reasonable travel, living and related expenses for XXxxx.xxx personnel rendering
services at Client's location which expensed conform to Client's travel policy,
attached as Exhibit A, and have been pre-approved by the Client's Project
Manager. All Development services hereunder shall be rendered on a fixed fee
basis. All other current and future work will be billed at the agreed upon
hourly rates for the term of the contract, as defined in Schedule 2, attached.
4.2. (RESERVED)
4.3. HOSTING SERVICES. If the parties have entered into an XXxxx.xxx
Hosting Services Agreement, Client shall pay XXxxx.xxx the amounts set forth in
said Hosting Services Agreement.
4.4. Taxes. In addition to the fees due as specified above, Client shall
pay any and all federal, state and local sales, use, value added, excise, duty
and any other taxes of any nature assessed upon or with respect to the license
granted hereunder, arising from this Agreement, except that taxes on XXxxx.xxx's
income shall be the sole responsibility of XXxxx.xxx.
4.5. PAYMENTS. All payments made pursuant to this Agreement shall be made
in U.S. Dollars are due thirty (30) days from the date of invoice. Late payments
shall bear interest at one and one-half percent (1.5%) per month, or the maximum
rate permitted by law, whichever is less.
5. LIMITED WARRANTY
5.1. SOFTWARE WARRANTY. Subject to the limitations set forth in this
Agreement, XXxxx.xxx warrants only to Client that the XXxxx.xxx Software
furnished hereunder when properly installed, properly used and unmodified by
Client, will substantially conform to the functional specifications set forth in
the applicable Schedule. XXxxx.xxx's warranty shall extend for a period of
ninety (90) days from the date that the final deliverables specified in each
Schedule are delivered to Client ("Warranty Period"). XXxxx.xxx's sole
responsibility under this Section 5.1 shall be to use reasonable commercial
efforts to promptly correct material errors, or at XXxxx.xxx's option, to refund
Client's fees paid for the XXxxx.xxx Software after de-installation and return
thereof. All warranty claims not made in writing or not received by XXxxx.xxx
within the Warranty Period shall be deemed waived, unless such material error
was not readily detectable during the Warranty Period due to the test platform
configuration, the need for integration with other components to readily detect
failure, or non-compatibility with XXxxx.xxx's hosting environment, in which
case XXxxx.xxx's sole responsibility shall be to use reasonable commercial
efforts to promptly correct such material errors, so long as written notice of
any such material error is delivered to XXxxx.xxx within 90 days of the date on
which such material error is or could have been discovered by Client, but in no
event later than 90 days of the date of the delivery of the final deliverables.
5.2. XXXXX.XXX DOES NOT WARRANT THAT THE USE OF THE XXXXX.XXX SOFTWARE
WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT FOR THE EXPRESS WARRANTIES STATED
ABOVE, XXXXX.XXX DOES NOT MAKE ANY WARRANTY AS TO THE XXXXX.XXX SOFTWARE OR THE
SERVICES PROVIDED HEREUNDER OR THE RESULTS TO BE OBTAINED FROM USE OF THE
XXXXX.XXX SOFTWARE. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, THE
XXXXX.XXX SOFTWARE IS USED AND THE SERVICES ARE PROVIDED ON AN "AS-IS" BASIS
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
USE WITH RESPECT TO THE INTERNET OR USE OF INFORMATION IN CONNECTION WITH THE
SOFTWARE.
6. INTELLECTUAL PROPERTY INDEMNIFICATION
6.1. XXXXX.XXX.
6.1.1. INDEMNIFICATION. XXxxx.xxx, at its own cost and expense,
shall defend Client and its officers and directors, against a claim that the
XXxxx.xxx Software infringes a third-party United States copyright or trade
secret, and shall pay any settlements entered into or damages awarded against
Client, or its officers and directors, to the extent related to such claim,
provided that (i) Client notifies XXxxx.xxx promptly in writing of the claim;
(ii) XXxxx.xxx has the sole control of the defense and all related settlement
negotiations; and (iii) Client provides XXxxx.xxx with all reasonably necessary
assistance, information, and authority to perform the foregoing at XXxxx.xxx's
expense.
6.1.2. XXxxx.xxx shall have no liability for any claim of
infringement based on (i) use by Client of other than the current update of the
XXxxx.xxx Software if the infringement would have been avoided by uses of the
current update; (ii) modifications, adaptations or changes to the XXxxx.xxx
Software not made by XXxxx.xxx; (iii) the combination or use of the materials
furnished hereunder with materials not furnished by XXxxx.xxx if such
infringement would have been avoided by use of the XXxxx.xxx materials alone; or
(iv) use or incorporation of Content or Modified Content. In the event the
XXxxx.xxx Software is held to, or XXxxx.xxx believes is likely to be held to,
infringe the intellectual property rights of a third party, XXxxx.xxx shall have
the right at its sole option and expense to (i) substitute or modify the
XXxxx.xxx Software so that it is noninfringing and qualitatively and
functionally equivalent to the XXxxx.xxx Software; (ii) obtain for Client a
license to continue using the XXxxx.xxx Software; or if neither (i) nor (ii) is
commercially reasonable, XXxxx.xxx shall have the right to terminate this
Agreement immediately upon written notice to Client, and XXxxx.xxx shall make
payment to Client of an amount equal to the fees paid for the XXxxx.xxx
Software, prorated over a three (3) year period commencing on the Effective
Date. This Section 6.1 sets forth Client's sole and exclusive remedy and
XXxxx.xxx's sole liability for intellectual property infringement by XXxxx.xxx.
6.2. Client.
6.2.1. Client hereby represents and warrants to XXxxx.xxx that (i)
Client has secured all necessary consents, permissions, clearances,
authorizations and waivers for the use of Content or Modified Content, including
without limitation, all text, pictures, audio, video, logos and copy contained
in all Content or Modified Content; (ii) the use of Content as contemplated
herein shall not infringe the copyright, trademark or other intellectual
property rights of any party, or constitute defamation, invasion of privacy, or
the violation of any right of publicity or any other right of any party; and
(iii) Client has complied and shall comply with all legislation, rules and
regulations regarding Content.
6.2.2. Client shall indemnify and hold harmless XXxxx.xxx, its
directors, officers, parent company, and affiliates, from any and all liability,
costs and expenses (including attorney's fees) arising in connection with any
third party claim or action brought against XXxxx.xxx, or any of its directors,
officers, parent company, and affiliates, relating to Content or Modified
Content, provided (i) XXxxx.xxx notifies Client promptly in writing of such
claim, (ii) Client has the sole control of the defense and all related
settlement negotiations, and (iii) XXxxx.xxx provides Client with all reasonably
necessary assistance, information and authority to perform the foregoing at
Client's expense.
7. LIMITATIONS ON LIABILITY
THE MAXIMUM LIABILITY OF XXXXX.XXX, ITS DIRECTORS, OFFICERS, PARENT
COMPANY, AND, AFFILIATES, TO CLIENT FOR DAMAGES RELATING TO XXXXX.XXX'S FAILURE
TO PERFORM SERVICES HEREUNDER SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL
FEES PAID BY CLIENT TO XXXXX.XXX WITH RESPECT TO SUCH SERVICES. NOTWITHSTANDING
THE FOREGOING, THE MAXIMUM LIABILITY OF XXXXX.XXX, ITS DIRECTORS, OFFICERS,
PARENT COMPANY, AND AFFILIATES, TO CLIENT FOR DAMAGES FOR ANY AND ALL OTHER
CAUSES WHATSOEVER, AND CLIENT'S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT
EQUAL TO THE TOTAL FEES PAID BY CLIENT TO XXXXX.XXX HEREUNDER. IN NO EVENT SHALL
XXXXX.XXX, ITS DIRECTORS, OFFICERS, PARENT COMPANY, AND AFFILIATES, LICENSORS,
AND SUPPLIERS, BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS
INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY
OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SOFTWARE OR THE SERVICES
PROVIDED HEREUNDER, EVEN IF XXXXX.XXX HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY.
8. TERM AND TERMINATION
8.1. TERM. Subject to this Section 8, the term of this Agreement shall
commence on the Effective Date and continue until the earlier to occur of (i)
all Stages of this project are accepted by Client; or (ii) the Agreement is
terminated pursuant to Section 8.2 or 8.3 below.
8.2. TERMINATION FOR CAUSE. This Agreement may be terminated by either
party in the event of (i) any material default in, or material breach of, any of
the terms and conditions of this Agreement by the other party, which default
continues in effect after the defaulting party has been provided with written
notice of default and thirty (30) days to cure such default or immediately if
Client breaches any of its confidentiality obligations under this Agreement;
(ii) the commencement of a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to either party of its
debts under any bankruptcy, insolvency, or other similar law now or hereafter in
effect, that authorizes the reorganization or liquidation of such party or its
debt or the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property; (iii) either
party's consent to any such relief or to the appointment of or taking possession
by any such official in an involuntary case or other proceeding commenced
against it; or (iv) either party's making a general assignment for the benefit
of creditors; or either party's becoming insolvent; or either party taking any
corporate action to authorize any of the foregoing.
8.3. (Reserved)
8.4. EFFECT OF TERMINATION. If this Agreement is terminated under Section
8.2 while XXxxx.xxx is performing any Development Services for Client hereunder,
Client shall pay all amounts due and owing for any projects already completed by
XXxxx.xxx hereunder or for any third-party products or services purchased by
XXxxx.xxx in Client's behalf. The foregoing shall be without limitation to
XXxxx.xxx's rights and remedies under this Agreement.
Additionally, if the Agreement is terminated by XXxxx.xxx for any reason other
than for cause as provided in Section 8.2 or by Client for any reason
whatsoever, XXxxx.xxx shall provide Client with: (i) the most current version of
the Source Code for each deliverable listed in Schedule I of this Development
Services Agreement,
whether completed or not, as well as the most current version of the object code
of the Necessary XXxxx.xxx Software, for Client's use in accordance with the
rights granted thereto by Section 3.2 of this Agreement; and (ii) a listing of
all additional products which must be licensed to run the Client Web Site in
industry standard digital format, both of which are to be supplied within seven
(7) days of such termination.
8.5. SURVIVAL. Sections 3, 5, 7, 8, 9 and 10 shall survive any termination
or expiration of this Agreement; provided, however, that if this Agreement is
terminated by XXxxx.xxx pursuant to Section 8.2 above, then Section 3.2 shall
not survive.
9. CONFIDENTIALITY
9.1. CONFIDENTIAL INFORMATION. Each party acknowledges that, in connection
with the performance of this Agreement, it may receive certain confidential or
proprietary technical and business information and materials of the other party
("Confidential Information").
9.2. CONFIDENTIALITY. Each party hereby agrees: (i) to hold and maintain
in strict confidence all Confidential Information of the other party and not to
disclose it to any third party; and (ii) not to use any Confidential Information
of the other party except as permitted by this Agreement or as may be necessary
to perform its obligations under this Agreement. Each party will use at least
the same degree of care to protect the other party's Confidential Information as
it uses to protect its own Confidential Information of like importance, and in
no event shall such degree of care be less than reasonable care.
9.3. EXCEPTIONS. Notwithstanding the foregoing, the parties agree that
Confidential Information will not include any information that: (i) is or
becomes generally known or is or becomes part of the public domain through no
fault of the other party, (ii) the first party authorizes to be disclosed; (iii)
is rightfully received by the other party from a third party without restriction
on disclosure and without breach of this Agreement; or (iv) is known to the
other party on the Effective Date from a source other than the first party, and
not subject to a confidentiality obligation.
9.4. INJUNCTIVE RELIEF. Each party acknowledges that any breach of the
provisions of this Section 9 may cause irreparable harm and significant injury
to an extent that may be extremely difficult to ascertain. Accordingly, each
party agrees that the other party will have, in addition to any other rights or
remedies available to it at law or in equity, the right to seek injunctive
relief to enjoin any breach or violation of this Section 9.
10. GENERAL PROVISIONS
10.1. FORCE MAJEURE. In the event that either party is unable to perform
any of its obligations under this Agreement or to enjoy any of its benefits
because of any event beyond the control of the affected party including, but not
limited to, natural disaster, acts of God, actions or decrees of governmental
bodies or failure of communication lines (a "Force Majeure Event"), the party
who has been so affected shall promptly give written notice to the other party
and shall use its best efforts to resume performance. Upon receipt of such
notice, all obligations under this Agreement shall be immediately suspended for
the duration of such Force Majeure Event.
10.2. NOTICE. All notices, demands, requests or other communications
required or permitted under this Agreement will be deemed given when (i)
delivered personally; (ii) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid; or
(iii) one (1) day after deposit with a commercial overnight carrier, with
written verification of receipt.
10.3. WAIVER. Waiver of any breach or failure to enforce any term of this
Agreement shall not be deemed a waiver of any breach or right to enforce which
may thereafter occur. No waiver shall be valid against any party hereto unless
made in writing and signed by the party against whom enforcement of such waiver
is sought and then only to the extent expressly specified therein.
10.4. SEVERABILITY. In the event any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable,
the remaining provisions of this Agreement shall be unimpaired and the parties
will substitute a new enforceable provision of like economic intent and effect.
10.5. GOVERNING LAW. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes thereto, shall be governed by and
construed in accordance with the laws of the State of Maryland without reference
to conflict of law principles.
10.6. ASSIGNMENT. Neither party shall have the right to assign this
Agreement without the prior written consent of the other party; provided, that
either party shall have the right to assign this Agreement to any person or
entity that acquires or succeeds to all or substantially all of such party's
business or assets upon written notice to the other party.
10.7. PUBLICITY. Within a time frame mutually agreed upon by the parties,
the parties shall mutually agree on a joint press release announcing the
existence of this Agreement. Neither party will use the other party's name,
domain name, logo, trademark or service xxxx in advertising or publicity without
obtaining the other party's prior written consent; provided, however, that
XXxxx.xxx shall have the nonexclusive right and license to use Client's name and
Client Web Site name, including the URL (Uniform Resource Locator) thereto, as a
Client reference, and as part of XXxxx.xxx's client portfolio. XXxxx.xxx shall
also have the right to display its name and logo, as well as a link to the
XXxxx.xxx site, on the Client Web Site(s), and to receive credit as the
developer of the Client Web Site(s), (collectively, the "Credit"). Such Credit
shall appear on the "home page" of the Client Web Site(s) in a position that
provides reasonable and appropriate visibility to XXxxx.xxx in light of industry
standards and Client's requirements. XXxxx.xxx shall not provide any third party
with access to or detailed information concerning any part of the Client Web
Site protected by a password or limited to subscriber or member access without
Client's prior written approval.
10.8. ADDITIONAL ACTIONS AND DOCUMENTS. Each of the parties hereto hereby
agrees to take or cause to be taken such further actions, to execute, deliver
and file or cause to be executed, delivered and filed such further documents,
and will obtain such consents, as may be necessary or as may be reasonably
requested in order to fully effectuate the purposes, terms and conditions of
this Agreement.
10.9. HEADINGS. Section headings contained in this Agreement are inserted
for convenience or reference only, shall not be deemed to be a part of this
Agreement for any other purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
10.10. EXECUTION IN COUNTERPARTS. This Agreement maybe executed in several
counterparts, each of which shall be deemed to be an original, and all of which,
when taken together, shall constitute one and the same instrument.
10.11. INDEPENDENT CONTRACTORS. The relationship of the parties hereunder
shall be that of independent contractors. Nothing herein shall be construed to
constitute a partnership between or joint venture of the parties, nor shall
either party be deemed the agent of the other or have the right to bind the
other in any way without the prior written consent of the other.
10.12. JURISDICTION. All disputes arising out of or relating to this
Agreement shall be submitted to the non-exclusive jurisdiction of the state and
federal courts encompassing Bethesda, Maryland, and each party irrevocably
consents to such personal jurisdiction and waives all objections thereto.
10.13. TIME OF THE ESSENCE. The parties acknowledge that time is of the
essence in completing all Stages of the Development Services in the time frames
set forth in this Agreement.
10.14. CONFLICTS. To the extent that the provisions of any attachment,
schedule, exhibit or any document incorporated by reference herein, conflict
with the provisions of this Agreement, this Agreement shall control.
