1
Exhibit 10.4
SERVICES PROVIDER AGREEMENT
This Agreement is made and entered into this __________________________ by and
between
XxxxxXxxxx.xxx Inc. ("Client")
located at 000 Xxxxxxx Xxxxxx
Xxxxxx XX 00000
and New York Internet Center ("Provider")
located at 000 Xxxx 00xx Xxxxxx, 00xx Xx
Xxx Xxxx, XX 00000
RECITALS
WHEREAS, Provider is engaged in providing software development and consulting
services for Internet businesses.
WHEREAS, Provider is engaged in hosting websites and servers.
WHEREAS, Provider is engaged in providing high speed connectivity to the
Internet for servers and websites hosted at its facilities.
WHEREAS, Client is in the business of developing a multilingual Internet
Portal, Online Community and Internet Services Provider.
WHEREAS, Client is in need of the services which Provider provides and wishes
to enter into a business arrangement with Provider to provide such services.
IN CONSIDERATION of the promises and mutual covenants hereby contained, it is
hereby agreed as follows and will confirm the arrangements, terms, and
conditions pursuant to which Provider has been retained to serve as provider,
consultant, and advisor to Client, on a non-exclusive basis. The undersigned
hereby agrees to the following terms and conditions:
1. TERM OF CONTRACT
This Agreement will become effective on _____________________, and will
continue in effect for a period of twelve (12) months unless earlier terminated
pursuant to Section 5 of this Agreement.
2. SERVICES TO BE PERFORMED BY PROVIDER
Provider shall at the request of Client, upon reasonable notice, render the
following services to Client from time to time.
2.1 Duties of Provider. Provider agrees to:
a. Provide design consultation in the creation and maintenance
of websites for Client.
b. Provide programming services involved in the development of
the websites owned by the Client.
c. Provide graphics, content and other website maintenance
services as instructed by Client.
d. Provide website and server hosting for Client.
e. Provide and maintain a high speed connection to the Internet
for the Client's website.
Initials_________ Page 1/5
2
2.2 Independent Contractor Status. It is the express intention of the parties
that Provider be an independent contractor and not an employee, agent, joint
venture, or partner of Client. Client shall not have the right to and shall not
control the manner or prescribe the method by which Provider performs the
above-described services. Provider shall be entirely and solely responsible for
its own actions and the actions of its agents, employees, or partners while
engaged in the performance of services required by the Agreement.
2.4 Use of Employees of Provider. Provider may, at its own expense, use any
employee or subcontractors as he deems necessary to perform the services
required of Provider by this Agreement. Client may not control, direct, or
supervise Provider's employees or subcontractors in the performance of those
services except as might hereinafter be agreed by both parties.
2.5 Available Time. Provider agrees to provide a minimum of one hundred (100)
man-hours per month in executing the requirements of the Agreement. Such
man-hours to be cumulative for the duration of this contract. In any given
month, Client may require Provider to deliver no more than 20 man-hours out of
any accumulated, pre-paid time.
2.6 Ownership of work product. Provider relinquishes all rights to the
results of work completed on behalf of Client. The results of work completed
under this Agreement is the sole property of Client. Provider relinquishes all
rights of use or ownership of such product developed expressly for Client.
Client acknowledges that there may be elements of the work product which is the
property of Provider, however Provider agrees to assign complete and
unrestricted rights of ownership of those elements to Client without further
obligation on the part of the Client.
3. COMPENSATION
3.1 Monthly Fee. Client agrees to pay the Provider no less than $10,000 per
month; and
3.2 Client Stock. Provider agrees to accept shares of Client's common stock
in compensation for services. Client common stock is hereby used to pre-pay for
services to be provided in the following amounts.
Price per
XxxxxXxxxx.xxx Website: Share Shares
Website Hosting $ 12,500 $1 12,500
Website Design $ 37,500 $1 37,500
Website Development $ 75,000 $1 75,000
XxxxxXxxxx.xxx Website:
Website Hosting $ 12,500 $1 12,500
Website Design $ 37,500 $1 37,500
Website Development $ 25,000 $1 25,000
Total $200,000 200,000; and
3.3 Maintenance Fees
Client acknowledges that that maintenance and connectivity costs will
escalate as its membership grows. Provider and Client will negotiate an
acceptable maintenance and connectivity fee as membership in the Client's online
community grows.
Initials _________ Page 2/5
3
4. OBLIGATIONS OF CLIENT
4.1 Cooperation Client shall comply with all reasonable requirements of
Provider and provide access to all documents necessary for the performance of
Provider's duties under this Agreement.
4.2 Confidentiality Except in the course of the performance of its duties
hereunder, Provider agrees that it shall not disclose any trade secrets,
know-how, or other proprietary information not in the public domain, learned as
a result of this Agreement, unless and until such information becomes generally
known.
4.3 Indemnification Client agrees to indemnify and hold harmless Provider
from and against any and all claims, actions, losses, or damages, including
legal fees, arising from the usage by Client and its customers of its services.
4.4 No Warranties With respect to the services to be provided hereunder,
Client, acknowledges that Provider makes no warranties, express or implied. As a
result, Client, agrees that Provider shall not be liable for any claims or
damages which may be suffered by Client, including but not limited to, loss of
data as a result of delays, non-deliveries, or service interruptions caused by
the fault or negligence of Provider.
4.5 Domain Name: Client hereby waves any and all claims which it may have
against Provider for any loss, damage, claim, or expense arising out of or in
relation to the registration of the Domain Name in any on-line or off-line
network directories, membership lists or registration lists, or the release of
the Domain Name from such directories or lists following the termination of this
Agreement.
5. TERMINATION OF AGREEMENT
5.1 Termination on Notice Notwithstanding any other provision of this
Agreement, either party may terminate this Agreement at any time by giving
thirty (30) days written notice to the other party. Unless otherwise terminated
as provided in this Agreement, this Agreement will continue in force for a
period of twelve (12) months.
5.2 Termination on Occurrence of Stated Even This Agreement will terminate
automatically and immediately on the occurrence of any of the following events:
a. bankruptcy or insolvency of either party
b. non-payment or performance as stated in this Agreement by
Client
6. GENERAL PROVISIONS
6.1 Further Acts Each party agrees to perform any further acts and execute
and deliver any further documents that may be reasonably necessary to carry out
the provisions and intent of this Agreement.
6.2 Entire Agreement This Agreement contains the entire understanding of the
parties hereto with respect to the subject matter contained herein and may be
amended only by a written instrument signed by the parties affected thereby, or
their respective successors or assigns. This Agreement cancels and supersedes
all prior agreements, if any, oral or written, among Client and Provider.
Initials _________ Page 3/5
4
6.3 Severability If any provision of this Agreement shall be held invalid,
such invalidity shall not affect the other provision hereof, and to this extent
the provisions of this Agreement are intended to be and shall be deemed
severable.
6.4 Counterparts This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
6.5 Notices Any notice or other communication required or permitted under
this Agreement shall be sufficiently given if delivered personally or sent by
registered or certified mail, postage prepaid and return receipt requested, to
the address of the parties set forth in the first paragraph of this Agreement or
at such address as may have been provided in like manner in writing to both
parties to this Agreement. Any notice that is sent by mail under this Agreement
shall be considered received on the date on which it is actually delivered to
the premises of the party of whom it is properly addressed, such date to be
conclusively evidenced by the date of the return receipt.
6.6 Governing Law This Agreement shall be construed in accordance with, and
governed by the laws of the State of New Jersey.
6.7 Assignment No party to this Agreement may assign this Agreement or its
right or obligations hereunder without the written consent of the other.
6.8 Headings The headings of this Agreement are inserted solely for the
convenience of reverence and are not part of, and are not intended to govern,
limit or aid in the construction of any term or provision hereof.
6.9 Pronouns All pronouns and any variations thereof shall be deemed to refer
to the masculine, feminine, or neuter, singular or plural, as the identity of
the person, persons, entity or entities may require.
6.10 Waiver No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute a waiver of any other provision, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
6.11 Acknowledgment Concerning Counsel Each party acknowledges that it had the
opportunity to employ separate and independent counsel of its own choosing in
connection to this Agreement.
6.12 Arbitration Any controversy, claim, misunderstanding, course of action,
matter in question, breach, disagreement, dispute, or other related matter
arising out of, or relating to this Agreement, or the relationship between the
parties, shall be decided by mandatory binding arbitration before the American
Arbitration Association, State of New Jersey. In such arbitration, the parties
shall be entitled to full discovery rights accorded to litigants under the laws
of the State of New Jersey. The prevailing party shall be entitled to recover
costs and expenses incurred expenses incurred, including reasonable attorney's
fees, related costs, and any advanced arbitration expenses.
Initials _________ Page 4/5
5
6.13 Indemnification Provider will indemnify and hold harmless, Client and its
officers, directors, agents, and employees against any expenses, which may be
incurred by Client as result of statements made by Provider which are inaccurate
or misleading or the failure by Provider to state facts, which are necessary to
be stated in order to make statements made not misleading.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
CLIENT: XxxxxXxxxx.xxx Inc.
BY: _____________________________
Xxxxxxxxxx Xxxxxxx, CEO
Accepted by: New York Internet Center
_____________________________
Xxxxx Xxxxx, CEO
