EXHIBIT 10.3
Confidential Treatment has been requested with respect to portions of the
agreement indicated with an asterisk [*]. A complete copy of this agreement,
including the redacted terms, has been separately filed with the Securities and
Exchange Commission.
Amendment to Omnibus Services Agreement Between Organic, Inc.
and Global Sports Interactive, Inc.
Organic, Inc. ("ORGANIC") and Global Sports Interactive, Inc. ("CUSTOMER")
hereby mutually agree to amend the Omnibus Services Agreement ("OSA") dated
April 1, 1999, and all attached Statements of Work and Change Orders.
WHEREAS, ORGANIC and CUSTOMER have mutually agreed to cease work on both the GSI
Common Engine Development and the Retailer Front End Initiative effective
September 13, 1999. ORGANIC will deliver to CUSTOMER all work product "as is,"
in its current state of development, including all source code and object code
of Organic Pre-existing Software and Customer Software currently in development.
WHEREAS, CUSTOMER has informed ORGANIC of CUSTOMER's intent to build the GSI
Common Engine internally, and will therefore be taking the work product
developed by ORGANIC "as is" and making extensive modifications to the ORGANIC
work product in order to complete the GSI Common Engine Development.
Additionally, since completion of the Retailer Front End Initiative is
contingent upon the final specifications of the GSI Common Engine, CUSTOMER will
be making extensive modifications to the ORGANIC work product for the Retailer
Front End Initiative as well.
NOW, THEREFORE, ORGANIC and CUSTOMER hereby mutually agree to the following
modifications and amendments to the OSA and all attached Statements of Work and
Change Orders:
Warranties. The parties hereby agree that all GSI Common Engine Development and
Retailer Front End Initiative work product is being provided by ORGANIC to
CUSTOMER "as is" and without any performance warranties of any kind; and that
the warranty provision in Section 5.1 of the OSA is hereby revoked and not
applicable to any and all ORGANIC work product for the GSI Common Engine
Development and the Retailer Front End Initiative.
However, ORGANIC and CUSTOMER hereby mutually agree to add the following
Warranty of Title provision to the OSA, which warranty shall be the only
warranty of any kind, either express or implied, that is applicable to any and
all ORGANIC work product for the GSI Common Engine Development and Retailer
Front End Initiative.
Warranty of Title. ORGANIC hereby represents and warrants to CUSTOMER that the
Organic Pre-existing Software and Customer Software shall be original
developments of ORGANIC, that ORGANIC has the full legal right to grant to
CUSTOMER the ownership rights and licenses granted under this Agreement and to
provide all
deliverables as required by this Agreement, that the Organic Pre-existing
Software and Customer Software and all deliverables as used by CUSTOMER,
unmodified, and in the form delivered to CUSTOMER by ORGANIC, do not infringe
upon any patent issued as of the Effective Date, trademark, copyright or any
trade secret or any other proprietary right of any person.
Payment. All invoices billed through August 31, 1999 shall remain valid and are
now immediately due. For the month of September 1999, CUSTOMER hereby agrees to
pay ORGANIC as follows:
(i) [*] representing 50% of the compensation for the GSI Common Engine
Development Team for services performed;
(ii) [*] representing payment for the Front End Initiative Team for
services performed; and
(iii) [*] representing unsigned change orders and payment for GSI Common
Engine Team resources that could not be re-assigned to other projects.
Services. ORGANIC hereby agrees to provide the following resources to perform
transition services to CUSTOMER beginning September 16, 1999 and continuing
through October 1, 1999:
(i) a Senior Producer;
(ii) 6 Content Engineers; and
(iii) 6 Interactive Production Artists.
The above resources will work no more than 100 hours each throughout the
duration stated above. If any of these resources are unavailable, the parties
hereby agree to a reduction in the fees stated above, which reduction shall be
based on the hourly rate for each resource according to the rate card. It is
also understood that CUSTOMER may prefer to have some or all of these resources
to be on site at CUSTOMER's facilities. Therefore, if CUSTOMER elects to have
any or all of these resources on site at CUSTOMER's facilities, CUSTOMER hereby
agrees to pay for any and all reasonable expenses associated with relocating
these resources to CUSTOMER's facilities, including, but not limited to, travel,
lodging, and meals.
Any and all other resources or services that are required beyond the end of
September, or that are in addition to those stated above, will be billed on a
time and materials basis upon prior written approval from CUSTOMER.
Termination. The parties hereby mutually agree to amend the termination
provision of the OSA by adding the following sentence to the end of Section 8.3:
Termination at Will. This Agreement may be terminated by mutual agreement
immediately, at any time, with the effective date of termination to be
mutually agreed upon by the parties in writing.
NOW, THEREFORE, the parties hereby mutually agree to terminate the OSA dated
April 1, 1999, and all attached Statements of Work and Change Orders, as of the
Effective Date of September 13, 1999.
All other provisions of the OSA, Statements of Work, and Change Orders that do
not contradict the above terms of this Amendment shall remain in full force and
effect.
AGREED AND ACCEPTED
ORGANIC, INC. GLOBAL SPORTS INTERACTIVE, INC.
By: ______________________________ By: ________________________________
Title: ___________________________ Title: _____________________________
Date: ____________________________ Date: ______________________________
