EXHIBIT 10.2(b)
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Professional Services Agreement
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Effective Date September 30, 1999
Name of Company ("Client") Virtual Communities
Client's Address 000 0xx Xxxxxx, Xxx Xxxx, XX 00000
Telephone Number x0 (000) 000-0000
Fax Number
Name & eMail Address of Client's Representative _______________________________
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INTERSHOP Communications, Inc. ("Intershop") and Client agree as follows:
1 Scope of Services/Software.
Intershop will perform the professional services (the "Services") for
Client in support of certain specific and discrete projects (each a "Project")
as described in the attached work order(s) ("Exhibit(s)"), commencing with
Exhibit A. Intershop will use its commercially reasonable efforts to complete
any such Services and/or any project programming and materials ("Software")
described in the related Exhibit in accordance with the terms and conditions of
this Agreement. Each Project performed by Intershop for Client will be
documented in a related Exhibit which will be governed by this Agreement and
will be signed by authorized representatives of both parties. Each Exhibit will
set forth, at a minimum, the work to be done, the duration of each Project, and
the fees for the work to be performed.
2 Performance
2.1 Method. All work will be performed in a workmanlike and professional
manner by employees and contractors of Intershop. Intershop will have the right
to reasonably determine the method, details, and means of performing the work to
be done for Client. Client may, however, require Intershop's personnel at all
times to observe Client's reasonable security and safety policies. Intershop's
personnel will perform their work for Client primarily at Intershop's premises.
2.2 Acceptance. For each Project described in the related Exhibit
performed under this Agreement, Client will have a 5 day "Acceptance Period"
(the length of the Acceptance Period for future Projects will be determined by
mutual agreement) beginning on the date that such Software and/or Service is
delivered. During the Acceptance Period, Client will notify Intershop in writing
adequately detailing any material nonconformance of such Software and/or Service
to the specifications as set forth in the related Exhibit. If Intershop receives
no notice of nonconformity, the Software and/or Service will be deemed accepted
by Client at the end of the Acceptance Period. In the event that Client deliver
Intershop written notice of nonconformance of Software and/or Service, Intershop
will cure such material nonconformance in accordance with the Description of
Work and deliver Software or Service to Client within 10 days of receipt of
nonconforming notification.
2.3 Project Documentation. Within 10 days of delivery of Software and/or
Service, Intershop will deliver to Client related Project documentation, if
applicable.
3 Fees, Expenses, Additional Work
3.1 Fees. Client will pay Intershop fees set forth in the related Exhibit
for Services and/or Software.
3.2 Expenses. In addition to the foregoing, Client will pay Intershop its
actual out-of-pocket expenses, including travel and living, as reasonably
incurred by Intershop in furtherance of its performance of the Services.
3.3 Additional Work. The fees and charges for any follow-on,
installation, troubleshooting and/or additional work not described in the
applicable exhibit will be
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Professional Services Agreement
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performed at Intershop's then-current rates for such work.
4 Ownership
4.1 Ownership. As between Client and Intershop, except as set forth below
in Section 4.2, all right, title, and interest, including copyright interests
and any other intellectual property, in and to the Software produced or provided
by Intershop for Services will be the property of Intershop. To the extent, for
any reason, any interest accrues to Client therein, Client agree to assign and,
upon its creation, automatically assign to Intershop the ownership of such
Software, including copyright interests and any other intellectual property
therein, without the necessity of any further consideration.
4.2 Client's License. Effective upon completion of the Services and/or
Software set forth in the applicable exhibit, Client will have a nonexclusive,
nontransferable royalty-free perpetual license to use the Software in the
machine-readable form as delivered to Client for so long as Client does not
violate any material provisions of this Agreement or any the related Software
License Agreement which accompanies Intershop Software.
4.3 Prohibited Activities. Client will not derive or attempt to derive the
source code or structure of all or any portion of the Software by reverse
engineering, disassembly, decompilation or any other means. Client will not
duplicate, manufacture, copy or reproduce any Software, or any portion thereof,
except as expressly permitted by Intershop. Client may not use, copy, or modify
the Software, or any copy, adaptation, transcription, or merged portion thereof,
except as expressly authorized by Intershop hereunder.
4.4 Third-Party Interests. Client's interest in and obligations with
respect to any programming, materials, or data to be obtained from third-party
vendors, regardless of whether obtained with the assistance of Intershop, will
be determined in accordance with the agreements and policies of such vendors.
5 Intershop Proprietary Information
Client acknowledges that in order to provide the Services, it may be
necessary for Intershop to disclose to Client certain proprietary information
(scientific or technical data, information, design, process, procedure, formula,
script, software or improvement that is commercially valuable to Intershop) that
has been developed by Intershop at great expense and that have required
considerable effort of skilled professionals ("Proprietary Information"). Client
further acknowledges that the Software will of necessity incorporate such
Proprietary Information. Client agrees that it will not disclose, transfer, use,
copy, or allow access to any such Proprietary Information to any employees or to
any third parties, excepting those who have a need to know such Proprietary
Information in order to give effect to Client's rights hereunder and who have
bound themselves to respect and protect the confidentiality of such Proprietary
Information. In no event will Client disclose any such Proprietary Information
to any competitors of Intershop.
6 Warranties
6.1 Intershop warrants that:
6.1.1 Intershop's providing of the Services and/or Software described
herein does not violate any applicable law, rule, or regulation; any
contracts with third parties; or any third-party rights in any U.S. patent,
copyright, or trade secret right; and
6.1.2 Intershop has sufficient right, title, and interest in and to
the Software, exclusive of rights respecting programs, data, and materials
identified as furnished to Client by third-party vendors, to grant and
convey the rights accorded to Client under Section 4.2 hereof.
6.2 INTERSHOP MAKES NO REPRESENTATION, EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7 LIMITATION OF LIABILITY
EXCEPT FOR ANY LIABILITY ARISING FROM BREACH BY INTERSHOP OF WARRANTIES
CONTAINED IN SECTIONS 6.1.1 AND 6.1.2, INTERSHOP'S LIABILITY HEREUNDER IS
LIMITED TO THE AMOUNTS PAID BY CLIENT DURING THE TERM OF
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THIS AGREEMENT FOR THE INTERSHOP PROFESSIONAL SERVICES. IN NO EVENT WILL
INTERSHOP HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA,
OR INTERRUPTION OF BUSINESS ARISING IN ANY WAY HEREUNDER UNDER ANY THEORY OF
LIABILITY, WHETHER OR NOT INTERSHOP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
8 Termination
8.1 Termination. The Agreement may be terminated by either party upon
written notice, if the other party breaches any obligation provided hereunder
and the breaching party fails to cure such breach within the 30 day period;
provided that the cure period for any failure by Client to pay fees and charges
due hereunder will be 15 days from the date of receipt by Client of notice of
such failure.
8.2 Remaining Payments. Within 30 days of termination of this Agreement
for any reason, Intershop will submit to Client an itemized invoice for any fees
or expenses theretofore accrued under this Agreement. Client, upon payment of
accrued amounts so invoiced, will thereafter have no further liability or
obligation to Intershop whatsoever for any further fees or expenses arising
hereunder. In the event Intershop terminates this Agreement because of the
breach by Client, Intershop will be entitled to a pro rata payment for work in
progress based on the percentage of work then completed, plus the full amount of
payment attributable to programming and materials already furnished by
Intershop.
9 Independent Contractors
The parties are and will be independent contractors to one another, and
nothing herein will be deemed to cause the creation of an agency, partnership,
or joint venture between the parties. Nothing in this Agreement creates or
establishes the relationship of employer and employee between Client and either
Intershop or any employee or agent of Intershop.
10 Miscellaneous
This Agreement will be governed by and constructed in accordance with the
substantive laws of the State of New York. THE PARTIES AGREE THAT THE U.N.
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO
THIS AGREEMENT. This is the entire Agreement between the parties relating to
the Services and supersedes any prior purchase order, communications, or
representations concerning the contents of the Services. No change or
modification will be valid unless it is in writing and is signed by the parties.
Accepted by Client
Name Avi Xxxxxxxxx
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Signed /s/ Avi Xxxxxxxxx
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Date 9/30/99
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Accepted for Intershop
Name Xxxxxx Xxxxxxxxxx
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Signed /s/ Xxxxxx Xxxxxxxxxx
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Date 10/12/99
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Exhibit A
Project Services, Description and Fees
The following is a Project Work Order that details the Project/Scope of Work to
be provided by Intershop to Client in accordance with the
Professional Services Agreement.
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Description of Work: Solution Definition Workshop. During Solution Definition,
IPS will conduct workshops with Virtual Communities to identify specific
requirements Virtual Communities requires of the Intershop ePage Cartridge. Any
software adaptions needed to meet Virtual Communities' specific requirements
will be documented and priced as a deliverable of the Solution Definition
Workshop. This project does not include the actual adaptation of the Intershop
ePages Cartridge.
Solution Definition: During Solution Definition, IPS will provide the following
document-based deliverables.
. Project Purpose and Vision
. Meeting Minutes
. High Level Functional Requirements
. Project Plan, including a description of the Software to be developed
along with a timeline with specific milestone deliverables for review
(hereafter, "Project Plan")
. Final Fixed Price Proposal for all work identified in the Project Plan
. Hardware/Software Requirements
In addition, within the context of the initial six person-day Solution
Definition Intershop will provide consulting and mentoring in support of
client's development of its Electronic Commerce platform:
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. Consulting: Intershop will provide consulting services to Client on
topics such as development of functional and technical design
specifications for the EC platform, integration alternatives, and best
use and practice of Intershop technology.
. Mentoring: Intershop will provide mentoring and coaching for use of
Intershop technology in areas such as the basic features, store
creation, use of server-side scripting, hook and extension
programming, database schema, integration such as payment system,
billing system, account registration/provisioning, and web-
page/template customization and usage. Prior to mentoring, Client
engineers are requested to complete Intershop 4 Essentials and/or
Enterprise training.
Fees
Client will pay Intershop $2000 per staff-day; a staff-day is work performed by
a single person during a normal 8 hour day. The parties hereby confirm that this
Project as set forth above is to be completed in accordance with the
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terms and conditions of the Agreement entered into by the parties as of the
Effective Date of such Agreement. Fees payable for work under this Exhibit A
will be due and payable no later than December 31, 1999. Notwithstanding any
term contained in this Agreement, the maximum liability for the initial Project
under this Exhibit is six staff-days professional services.
Provided this agreement is signed and returned to Intershop by 2:00 PM PDT on
September 30, 1999, Intershop will use its reasonable best efforts to:
. Complete the Solution Definition by October 15, 1999; and
. Return to Client to commence work on integration and implementation by
November 1, 1999, provided the parties have agreed to terms and
associated scope of work to be attached to this Agreement as Exhibit B.
Intershop Communications, Inc. Client
Signed: Xxxxxx Xxxxxxxxxx Signed: Avi Xxxxxxxxx
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Title: Director of Prof. Services Title: President
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Date: 10/12/99 Date 9/30/99
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