EXHIBIT 10.2
WEB MAINTENANCE AGREEMENT FOR
XXXXXXXXXXXXX.XXX
DATED OCTOBER 25, 1999
WEB SITE MAINTENANCE AGREEMENT
FOR XXXXXXXXXXXXX.XXX
This Web Site Maintenance Agreement (this "Agreement") is made this
25th day of October, 1999, (the "Effective Date) by and between
xXxxXxxxxxx.xxx, Inc. (the "Developer") and XxXxxxxxxxxxx.xxx, Inc. (the
"Customer").
A G R E E M E N T:
1. SERVICES TO BE RENDERED. The Developer will perform the web
site maintenance for the Customer as more particularly described in Exhibit
A, which is attached hereto and incorporated into this Agreement. All
services provided by the Developer to the Customer are defined as the
"Services," any and all resulting work product is the "Product," and any task
discretely listed on Exhibit A, attached hereto, is the "Task")
2. PAYMENT OF FEES. In consideration of the Services, the Customer
shall pay Developer, the fees (the "Fees") more particularly described in
Exhibit B, which is attached hereto and incorporated into this Agreement. The
Customer will purchase or advance all the expenses associated with
acquisition, setup, installation and hosting of the necessary software and
hardware for the maintenance of the Web Site.
3. INDEMNIFICATION.
(a) INDEMNIFICATION BY CUSTOMER. The Customer agrees to
indemnify, defend and hold the Developer, it's owners and its agents,
officers, directors, lawyers, accountants, and employees, harmless from and
against any and all losses, claims, demands, damages, liabilities, costs and
expenses, including but not limited to reasonable attorneys' fees and the
costs of any legal action arising from Customer's web site(s) or Customer's
use of the Services. Such indemnification shall include, but not be limited
to, claims for libel, slander, infringement of copyright, theft of
misappropriation of intellectual property, or unauthorized use of any
trademark, trade name, or service xxxx.
(b) INDEMNIFICATION BY DEVELOPER. Except as otherwise herein
provided, the Developer agrees to indemnify, defend and hold the Customer and
its agents, officers, directors, lawyers, and accountants harmless from and
against any and all losses, claims, demands, damages, liabilities, costs and
expenses, including but not limited to, reasonable attorneys' fees and costs
of any legal action (but excluding consequential damages) arising from the
Developer's gross negligence in the course of providing the Services under
this agreement. In no event will the Developer be liable for lost or damaged
data, loss of business, or anticipatory profits, or any other consequential
or incidental damages resulting from the use or operation of the Services or
the maintenance thereof.
Page 8 of 145
4. LIMITATION OF DAMAGES. The Developer will endeavor to provide
high quality Services and a high quality Product. However, the Developer is
not, and will not be responsible for any consequential or incidental damages
resulting from any malfunctioning of Customer's web site resulting form
Developer's Services, including, but not limited to, any interruptions of
service, or data loss (including lost transactions) regardless of whether
such damages arose from Developer's negligence. Although the Developer will
endeavor to safeguard any data provided by the Customer, the Customer agrees
that it is responsible for safeguarding its data, including maintaining
backup data sets.
5. TERMINATION OF AGREEMENT.
(a) MATERIAL BREACH. If either party is in material breach this
Agreement, the non-breaching party may serve the breaching party with a
written notice specifying the material breach and requesting the breaching
party to cure it. If the breaching party fails to cure the material breach
within ten (10) days after its receipt of the notice, the non-breaching party
may terminate this Agreement by sending a written notice of termination to
the breaching party. The termination of this Agreement shall take effect
immediately on the receipt of such notice of termination by the breaching
party.
(b) TERMINATION ABSENT A BREACH. Either party shall have the
ability to unilaterally terminate the Agreement by sending the other party a
written notice stating that it is terminating the Agreement. The termination
of this agreement shall take effect sixty (60) days following the other
party's receipt of this notice. This sub-paragraph shall not apply to any
termination arising from a material breach.
(c) EFFECT OF TERMINATION. On any termination of this Agreement
pursuant to this paragraph, the Developer may immediately cease providing
Services to the Customer, and neither party shall have any further obligation
to the other under the Agreement, provided that neither party shall be
relieved from any obligations or liabilities arising under the Agreement
prior to its termination.
6. WARRANTIES; LIMITATIONS ON LIABILITY. THE DEVELOPER MAKES NO
WARRANTY, REPRESENTATION, OR PROMISE NOT EXPRESSLY SET FORTH IN THIS
AGREEMENT. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN THE SERVICES ARE
PROVIDED "AS IS." THE DEVELOPER DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS OF THE SERVICES FOR A
PARTICULAR PURPOSE. THE DEVELOPER DOES NOT WARRANT THAT THE SERVICES OR
RELATED MATERIALS WILL SATISFY CUSTOMER'S REQUIREMENTS OR THAT THE SERVICES
AND RELATED SERVICES WILL BE WITHOUT DEFECT OR ERROR.
7. ENTIRE AGREEMENT. This Agreement supersedes all previous
agreements between the parties, contains the entire understanding between the
parties, and may not be changed, except in writing, duly executed by each of
the parties.
Page 9 of 145
8. INDEPENDENT CONTRACTOR. The Developer is an independent
contractor relative to the Customer and nothing contained herein shall be
deemed to create a partnership or agency relationship.
9. ASSIGNMENT. This agreement may not be assigned without the
express written consent of the non-assigning party.
10. NOTICES. All notices required by this Agreement shall be in
writing and sent by Facsimile, Electronic Mail, Federal Express, or U.S.
Mail, Return Receipt Requested as provided below. Such notice shall be
sufficient for the purposes of this Agreement only if sent to the party's
"Address for Service" as listed below. Such Address for Service may be
changed by any party by serving notice (in compliance with the paragraph) on
the other party. No notice sent by facsimile shall be sufficient without a
confirmation receipt. No notice sent by electronic mail shall be sufficient
unless sent to an address included in the recipient's Address for Service and
acknowledged by a human-generated response.
Developer's Address for Service:
Address: Attn: Xxxxxx Xxxxxx
00000 Xxxxxxx Xxx., Xxxxx 000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
E-mail: xxxxxxx@xxxxxxxxxxx.xxx
Customer's Address for Service:
Address: Attn: Xxxxx Xxxxxxxx
000 X. Xxxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxxxxxxxxx.xxx
Page 10 of 145
11. DISPUTE RESOLUTION. If a dispute or claim shall arise with
respect to any of the terms or provisions of this Agreement, then either
party may, by notice as herein provided, require that the dispute be
submitted under the Commercial Arbitration Rules of the American Arbitration
Association to an arbitrator in good standing with the American Arbitration
Association within fifteen (15) days after such notice is given. Any such
arbitrator so selected is to be mutually acceptable to both parties. If both
parties are unable to agree upon a single arbitrator, each party shall
appoint one (1) arbitrator. If either party does not appoint an arbitrator
within five (5) days after the other party has given notice of the name of
its arbitrator, the single arbitrator appointed by the party giving notice
shall be the sole arbitrator and such arbitrator's decision shall be binding
upon both parties. If two (2) arbitrators are appointed, these two (2)
arbitrators shall appoint a third arbitrator who shall proceed to resolve the
question. The written decision of the single arbitrator ultimately appointed
by or for both parties shall be binding and conclusive on the parties.
Judgment may be entered on such written decision by the single arbitrator in
any court having jurisdiction and the parties consent to the jurisdiction of
Orange County, California for this purpose. Any arbitration undertaken
pursuant to the terms of this section shall occur in Orange County,
California.
12. ATTORNEYS' FEES. In the event of any legal, equitable or
administrative action or proceeding brought by any party against another
party under this Agreement, the prevailing party shall be entitled to recover
the reasonable fees of its attorneys and any costs incurred in such action or
proceeding including costs of appeal, if any, in such amount that the court
or administrative body having jurisdiction over such action may award.
13. GOVERNING LAW. This Agreement will be construed and enforced in
accordance with, and governed by, the laws of the State of California in the
United States of America without giving effect to any conflict of laws
principles. The parties hereby consent to the personal jurisdiction of the
courts of the County of Orange, California, and waive any rights to change
venue.
14. CURRENCY DENOMINATIONS. All currency denominations are in
United States dollars.
SIGNATURE PAGE FOLLOWS
Page 11 of 145
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first written above.
The Developer
XXXXXXXXXXX.XXX, INC.
By: /s/ X. Xxxx
----------------------------
Its: President/CEO
---------------------------
The Customer
XxXxxxxxxxxxx.xxx, Inc.
By: /s/ Xxxxx Xxxxxxxx
---------------------------
Xxxxx Xxxxxxxx
President/CEO
EXHIBIT A
SERVICES
The Developer shall provide maintenance services for the Customer's
web site, xxxx://xxx.xxxxxxxxxxxxx.xxx, as follows:
1. Database Maintenance. The Developer will re-index the database
and making Minor Modifications (as defined below) to the database structures
as needed. ("Minor Modifications" are defined as adding not more than four
fields and not more than two tables to the database in any one month. Any
other modifications are outside the scope of this Agreement).
2. Technical Support. From 8:00 AM to 11:00 PM Pacific Standard (or
Daylight) Time excluding weekends and Holidays (as defined below), the
Developer will be available to provide technical support by telephone and
e-mail. ("Holidays" include New Year's Day, Presidents' Day, Easter, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day, the day after
Thanksgiving, and Christmas Day.) On weekends and Holidays, designated
employees of the Developer will be available to be paged by the Customer for
Emergencies (as defined below). (An "Emergency" is defined as the failure of
a major component of the Web Site that prevents users from purchasing any
products, or preventing users from accessing a substantial portion of the Web
Site's content.)
3. During emergencies and critical updates, the Developer's
designated Network Administrators will be available for troubleshooting on
site of the Customer. (An "Emergency" is defined as the failure of a major
component of the Web Site that prevents users from
Page 12 of 145
purchasing any products, or preventing users from accessing a substantial
portion of the Web Site's content. "Critical update" is a crucial security or
other software patch provided by the original software vendor or legislated
by the government authorities. "Substantial portion of the Web Site" being
defined as no less than forty percent (40%) of the Web site content.)
4. Updates/Changes. The Developer will make any requested updates or
changes to existing components of the Web Site. The Developer will use best
efforts to respond to requests by the Customer to update or change the Web
Site within twenty-four (24) hours, acknowledging receipt of the request and
providing an estimated time-frame within which the Customer should expect the
request will be fulfilled. The Customer agrees that adding any new components
is outside the scope of this Agreement.
13
EXHIBIT B
FEES
In consideration of the Services, the Customer shall pay Developer
Fees in the amount of Ten Thousand Dollars ($10,000) per month, starting
first (1) date of January, year two thousand A.D. (2000), for the first forty
(40) "man hours" of Services provided by the Developer. For any Services
rendered in excess of these initial forty (40) hours each month, the Customer
shall pay Two Hundred Dollars for each additional "man hour," rounded to the
nearest hour.
The Customer will purchase or advance all the expenses associated
with acquisition, setup, installation and hosting of the necessary software
and hardware for the maintenance of the Web Site.
The Developer shall mail the Customer an invoice for each month and
the Fees listed on such invoice shall be paid by the Customer within thirty
(30) days of its receipt of the invoice.
14
