EXHIBIT 10.2
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WEB SITE DEVELOPMENT AGREEMENT
This Web Site Development Agreement (the "Agreement") is entered into
and effective this 24th day of May, 2000 (the "Effective Date") by and between
Hydrogen Media, Inc., a Florida corporation ("HMI"), and The Publishing Company
of North America, Inc. a NASDAQ listed company ("Client").
TERMS AND CONDITIONS
1. DEVELOPMENT OF THE WEB SITE. Client hereby retains HMI to design and
develop, and HMI hereby agrees to design and develop, a Web Site in
accordance with (1) the project outline set forth on EXHIBIT A (Project
Outline) and (2) the Production Package (including, the Xxxxx Chart and
Site Map) developed jointly by Client and HMI (the "Web Site"). The Project
Outline and Production Package are collectively referred to herein as the
"System Specifications." The parties shall work together in a joint effort
to accomplish the tasks and objectives set forth in the System
Specifications. HMI shall be responsible for delivering and performing only
those professional services specifically identified in the System
Specifications. Any modifications to the System Specifications shall be
pursuant to the Change Order process set forth below.
2. ACCEPTANCE OF DELIVERABLES. Client shall execute a written approval upon
completion of each of the deliverables identified in the System
Specifications. HMI shall rely on such written approval as Client's
acceptance of such deliverable, including, but not limiting to, acceptance
of its design, content, layout, color, format, navigation, and
functionality. Any modifications to the deliverable(s) after execution of
the written approval by Client shall be subject to the Change Order process
set forth below.
3. CHANGE ORDERS. In the event Client desires to make any modifications to the
System Specifications or a deliverable, Client and HMI shall enter into a
Change Order in the form attached hereto as EXHIBIT B (the "Change Order").
The Change Order will include: the scope of services to be provided by HMI,
the scope of services to be provided by Client, the deliverable schedule,
and the cost/payment schedule for the modifications. If the Change Order is
acceptable to Client, HMI and Client shall execute the Change Order. All
Change Orders shall be effective upon execution by both parties, and shall
be attached to and incorporated into this Agreement. In the event of a
conflict between the terms of this Agreement and a Change Order, the terms
of this Agreement shall govern.
4. SUPPORT AND MAINTENANCE. Any support and maintenance services, updates,
versions, or new releases shall be contracted under a separate agreement
between HMI and Client. Maintenance and support for any third party
products or equipment may be available through the respective
vendor(s)/manufacturer(s) of such content and equipment and HMI may assign
third party rights to Client at HMI's sole discretion. Such assignment
shall not be unreasonably withheld.
5. TRAINING. Prior to the launch of the Web Site, HMI will provide five (5)
hours of verbal training (via telephone, seminar, one-on-one, or in person
at Client's discretion) for Client's staff. Any additional training after
such five (5) hours shall be executed pursuant to HMI's Change Order
process or contracted under a separate agreement between HMI and Client.
6. CLIENT RESPONSIBILITIES. Client agrees to perform all tasks assigned to
Client as set forth in this Agreement, the System Specifications, or a
Change Order, and to provide all assistance and cooperation to HMI in order
to complete timely and efficiently the Web Site. HMI shall not be deemed in
breach of this Agreement, the System Specifications, a Change Order, or any
milestone in the event HMI's failure to meet its responsibilities and time
schedules is caused by Client's failure to meet (or delay in) its
responsibilities and time schedules set forth in the System Specifications,
a Change Order, or this Agreement. In the event of any such failure or
delay by Client, (i) all of HMI's time frames, milestones, and/or deadlines
shall be extended by the product of the number of days of Client's failure
multiplied by two (2); and (ii) Client shall continue to make timely
payments to HMI as set forth in this Agreement, the System Specifications,
and any Change Order(s) as if all time frames, schedules, or deadlines had
been completed by HMI. Client shall be responsible for making, at its own
expense, any changes or additions to Client's current systems, software,
and hardware that may be required to support operation of the Web Site.
Unless otherwise contracted with HMI or reflected in a Change Order, Client
shall be responsible for initially populating and then maintaining any
databases on the Web Site as well as providing all content for the Web
Site. With the execution of a Change Order specifically asking HMI to
assesses the Client's systems, software and hardware from time to time, HMI
may agree to perform this function at normal HMI rates.
7. PROJECT MANAGERS. Client and HMI shall assign a Project Manager for
managing the implementation of the Web Site. The Project Managers shall be
responsible for: (i) managing the day-to-day activities under this
Agreement, (ii) serving as liaisons between the parties, (iii) assigning
and scheduling the appropriate personnel to perform all of the required
services under this Agreement, and (iv) authorizing and executing any and
all Change Order(s). Client hereby acknowledges and agrees that the Client
Project Manager shall have the proper authority and power to execute and
perform the duties and responsibilities set forth in this Section. HMI
hereby acknowledges and agrees that the HMI Project Manager shall have the
proper authority and power to execute and perform the duties and
responsibilities set forth in this Section.
8. MARKETING. Client hereby grants HMI the right to use the name and service
marks of Client in its marketing materials or other oral, electronic, or
written promotions, which shall include naming Client as a client of HMI
and a brief scope of services provided. In addition, Client hereby grants
HMI the right to display its logo (or other identifying information) and a
hyperlink to HMI's Web site (currently xxx.xxxxxxxxxxxxx.xxx) on the home
page of the Web Site. Any use of HMI logos or links on Client's Web Site
must be approved in writing by Client. Either party may elect to issue a
press release related to this Agreement. In doing so, any release shall be
approved by the other party and such approval shall not be unreasonably
withheld.
9. COMPATIBILITY. Unless otherwise specifically identified in the System
Specifications or a Change Order: (i) the Web Site is compatible solely
with Netscape Navigator version 4.0 and higher, America On-line version 4.0
and higher, and the domestic versions of Internet Explorer version 4.0 and
higher, (ii) the Web Site is not compatible with interactive television
protocols, and (iii) the Web Site shall function at resolutions of 640 x
480.
10. FEES, EXPENSES, AND PAYMENT.
10.1 Web Site Development Investment. Client agrees to pay HMI a total of
$411,442.00 for development of the Web Site (the "Development
Price"). The Development Price shall be payable as follows: (a) 40
percent or USD$164,576.80 due and payable upon execution of this
Agreement and (b) 60 percent or USD$246,865.20 payable in the form of
unregistered common stock ("Stock") of Client in four tranches as
follows:
a.) A number of shares of Stock having an aggregate value of
$61,716.30 as defined below shall be paid by Client on each of
the following dates (in 2000): June 30, July 28, August 25, and
the Launch Date.
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b.) The value of the Stock shall be based upon the average of the
daily closing prices as reported by Nasdaq for the week ended
by each payment date, less a 20% discount.
c.) Said Stock shall have piggyback registration rights as
specified in Exhibit C.
d.) Upon the written request of HMI, it shall be permitted to
transfer 13% of its Stock to Xxxxxxxx Xxxx.
e.) The issuance of the Stock to HMI and the transfer of Stock to
Xxxxxxxx Xxxx shall be subject to their execution of investment
letters and other customary documentation acknowledging receipt
of Client's public information in order to comply with the
federal and applicable state securities laws.
10.2 Expenses. Client shall reimburse HMI for reasonable out-of-pocket
travel expenses (collectively, "Expenses"), including transportation,
lodging, mileage, and meals incurred in rendering HMI's professional
services. HMI shall obtain Client's prior written authorization
before incurring any individual expense or cost in excess of
USD$250.00 (or USD$3,000.00 in the aggregate). All Expenses not paid
directly by Client shall be paid within fourteen (14) days of receipt
of HMI's invoice. All Expense reimbursements shall be made at HMI's
direct out-of-pocket costs, without any markup for overhead,
administrative costs, or otherwise.
10.3 Taxes. Client shall pay, reimburse, and/or hold HMI harmless for all
sales, use, transfer, privilege, tariffs, excise, and all other taxes
and all duties, whether international, national, state, or local,
however designated except income taxes, which are levied or imposed
by reason of the performance of the professional services under this
Agreement or by use of the Web Site, except income taxes.
10.4 Other Fees. Unless otherwise provided in this Agreement or in a
Change Order, payment for all other services rendered by HMI shall be
contracted under a separate agreement between HMI and Client.
10.5 Form of Payment. All payments made to HMI under this Agreement shall
be in United States currency in the form of company check, cashier's
check, or electronic wire transfer.
10.6 Payment of Invoices. All invoices shall be paid by Client within
fourteen (14) days of receipt. Payments not made within such time
period shall be subject to late charges equal to the lesser of (i)
one and one-half percent (1.5%) per month of the overdue amount or
(ii) the maximum amount permitted under applicable law. HMI may
suspend all services on seven (7) days written notice until the
amounts outstanding are paid in full.
11. INTELLECTUAL PROPERTY RIGHTS AND LICENSE.
11.2 Web Site. Except as otherwise set forth in this Section 11.2, Client
and HMI agree that upon payment in full of the fees associated with
the design and development of the Web Site, Client shall own all
worldwide right, title, and interest in and to the Web Site
(including, its source code and documentation) (the "Custom
Programming"). Client and HMI agree that HMI shall retain a
world-wide, royalty-free, non-exclusive, transferable, and perpetual
right and license to the Custom Programming including, but not
limited to, the right to modify, amend, create derivative works,
rent, sell, assign, lease, sublicense, or otherwise alter or transfer
the Custom Programming. Client shall be responsible for researching,
obtaining, and filing all trademark, copyright, patent, or other
intellectual property protections for the Web Site, its look and
feel, any logos, any "tag lines," or any other Web Site content or
documentation designed or developed by HMI for Client. Client and HMI
also agree that the design and development of Client's Web Site may
include source code, documentation, and/or application programs that
were previously written or developed by HMI and modified to meet
Client's specific requirements (the "HMI Content"). HMI shall own all
worldwide right, title, and interest in and to the HMI Content, but
shall provide Client (upon payment in full of the fees associated
with the design and development of the Web Site) a worldwide,
royalty-free, non-exclusive, transferable and perpetual right and
license to use the HMI Content. HMI agrees that it either owns or
will own any rights that it claims to own and which HMI assigns to
Client. HMI will assign any intellectual property rights to Client
that are consistent with this paragraph 11.
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11.3 Third Party Licenses. In addition to any other fees set forth in this
Agreement, Client shall be required to purchase any applicable third
party licenses for any third party products that are necessary for
HMI to design and develop the Web Site. Such third party products may
include, but are not limited to: server-side applications, clip art,
"back-end" applications, music, stock images, or any other
copyrighted work which HMI deems necessary to purchase on behalf of
Client to design and develop the Web Site. In the event any such
third party product exceeds $250.00 per product (or $3000.00 in the
aggregate), HMI shall obtain Client's prior written consent before
incorporating such third party product into the Web Site. HMI shall
provide Client with a list of all third party products upon launch of
the Web Site.
12. TERM AND TERMINATION.
12.2 Term. This Agreement shall be effective as of the Effective Date and
shall continue in effect until complete payment of the Development
Price or until earlier terminated as provided in this Agreement or
until the contracted services as outlined in Exhibit A have been
completed.
12.3 Termination for Cause. This Agreement may be terminated by either
party upon written notice to the other, if the other party breaches
any material obligation provided hereunder and the breaching party
fails to cure such breach within thirty (30) days of receipt of the
notice
12.4 Effect of Termination. Client shall pay HMI for all services rendered
and work performed up to the effective date of termination for any
reason subject to Client's rights to only pay fair value if Client
terminates for cause. HMI shall provide Client with an invoice for
the foregoing fees within thirty (30) days of the effective date of
the termination. Client shall pay the invoice within fourteen (14)
days of receipt.
12.5 Return of Proprietary or Confidential Information. Within ten (10)
days after the termination or expiration of this Agreement, each
party shall return to the other all Proprietary or Confidential
Information of the other party (and any copies thereof) in the
party's possession or, with the approval of the party, destroy all
such Proprietary or Confidential Information. "Proprietary or
Confidential Information" shall include, but is not limited to,
written or oral contracts, trade secrets, know-how, business methods,
business policies, memoranda, reports, records, computer retained
information, notes, or financial information. Proprietary or
Confidential Information shall not include any information which: (i)
is or becomes generally known to the public by any means other than a
breach of the obligations of the receiving party; (ii) was previously
known to the receiving party or rightly received by the receiving
party from a third party; (iii) is independently developed by the
receiving party; or (iv) is subject to disclosure under court order
or other lawful process.
13. LIMITED WARRANTIES.
13.2 Web Site. HMI warrants that for a period of ninety (90) days from
launch of the Web Site, the Web Site will operate in accordance with
all the material terms of the System Specifications. All warranty
claims not made in writing within such period shall be deemed waived.
As the sole and exclusive remedy of Client for breach of the
foregoing warranty, HMI shall, at its option, either correct the
nonconformity or refund to Client the dollar amount attributable to
the number of actual hours HMI spent developing the defective portion
of the Web Site. HMI shall not be liable for failures caused by third
party hardware or software (including Client's own systems), misuse
of the Web Site, or the negligence or willful misconduct of Client.
13.3 Performance of Professional Services. HMI warrants that the
professional services will be performed in a workmanlike and
professional manner by appropriately qualified personnel.
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14. DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE Web
Site IS PROVIDED on an "AS IS" and "AS AVAILABLE" basis, AND HMI EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
15. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER OR ANY THIRD PARTY, FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR THE WEB SITE,
OR FOR ANY CLAIM BY ANY THIRD PARTY. THE TOTAL LIABILITY FOR ALL DAMAGES,
LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE) TO THE OTHER SHALL NOT EXCEED THE DEVELOPMENT
PRICE (AS DEFINED IN SECTION ERROR! REFERENCE SOURCE NOT FOUND.). THIS
LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET
FORTH ABOVE FAIL IN THEIR ESSENTIAL PURPOSE.
16. THIRD PARTY DISCLAIMER. HMI MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS
OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR
ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
17. INDEMNIFICATION OBLIGATIONS.
17.2 Client Indemnity. Client shall indemnify and hold harmless HMI (and
its subsidiaries, affiliates, officers, agents, co-branders or other
partners, and employees) from any and all claims, damages,
liabilities, costs, and expenses (including, but not limited to,
reasonable attorneys' fees and all related costs and expenses)
incurred by HMI as a result of any claim, judgment, or adjudication
against HMI related to or arising from (a) any photographs,
illustrations, graphics, audio clips, video clips, text, data or any
other information, content, display, or material (whether written,
graphic, sound, or otherwise) provided by Client to HMI (the "Client
Content"), or (b) a claim that HMI's use of the Client Content
infringes the Intellectual Property rights of a third party. To
qualify for such defense and payment, HMI must: (i) give Client
prompt written notice of a claim; and (ii) allow Client to control,
and fully cooperate with Client in, the defense and all related
negotiations.
17.3 HMI Indemnity. HMI shall indemnify and hold harmless Client (and its
subsidiaries, affiliates, officers, agents, co-branders or other
partners, and employees) from any and all claims, damages,
liabilities, costs, and expenses (including, but not limited to,
reasonable attorneys' fees and all related costs and expenses)
incurred by Client as a result of any claim, judgment, or
adjudication against Client arising from a claim that Client's use of
the HMI Content, as permitted under this Agreement, infringes
Intellectual Property rights of a third party. To qualify for such
defense and payment, Client must: (i) give HMI prompt written notice
of a claim; and (ii) allow HMI to control, and fully cooperate with
HMI in, the defense and all related negotiations. HMI shall have no
obligation to indemnify Client under this Section to the extent the
infringement arises from (i) the Client Content, (ii) specifications
provided by Client or its agents; (iii) derivative works of the Web
Site created by Client, (iv) use of the Web Site in combination with
non-HMI approved third party products, including hardware and
software, (v) modifications or maintenance of the Web Site by a party
other than HMI, (vi) misuse of the Web Site, and (vii) failure of
Client to implement any improvement or updates to the Web Site, if
the infringement claim would have been avoided by the use of the
improvement or updates.
17.4 Promptly after receipt by a person entitled to indemnification
pursuant to the foregoing Section 17.1 or 17.2 (the "Indemnified
Party") of notice of the commencement of any action, the Indemnified
Party will, if a claim in respect thereof is to be or has been made
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against a party who has agreed to provide indemnification under
Section 17.1 or 17.2 (an "Indemnifying Party"), promptly notify in
writing the Indemnifying Party of the commencement thereof; but the
omission to so notify the Indemnifying Party will not relieve it from
any liability which it may have to the Indemnified Party except to
the extent the Indemnifying Party is prejudiced by the delay or
failure to notify it. In case any such action is brought against an
Indemnified Party, and it notifies the Indemnifying Party of the
commencement thereof, the Indemnifying Party will be entitled to
participate in, and, to the extent that it may wish, jointly with any
other Indemnifying Party similarly notified, to assume the defense
thereof, subject to the provisions herein stated, with counsel
reasonably satisfactory to the Indemnified Party, and after notice
from the Indemnifying Party to the Indemnified Party of its election
to so assume the defense thereof, the Indemnifying Party will not be
liable to the Indemnified Party under this Section 17 for any legal
or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation. The Indemnified Party shall have the right to employ
separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall not be at
the expense of the Indemnifying Party if the Indemnifying Party has
assumed the defense of the action with counsel reasonably
satisfactory to the Indemnified Party; provided that the fees and
expenses of such counsel shall be at the expense of the Indemnifying
Party if (i) the employment of such counsel has been specifically
authorized in writing by the Indemnifying Party or (ii) the named
parties to any such action (including any impleaded parties) include
both the Indemnified Party or parties and the Indemnifying Party and,
in the judgement of counsel for the Indemnified Party, it is
advisable for the Indemnified Party or parties to be represented by
separate counsel (in which case the Indemnifying Party shall not have
the right to assume the defense of such action on behalf of the
Indemnified Party or parties, it being understood, however, that the
Indemnifying Party shall not, in connection with any one such action
or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys for the Indemnified Party or
parties. No settlement of any action against an Indemnified Party
shall be made without the consent of the Indemnifying Party and no
Indemnifying Party, in the defense of any such claim or action,
shall, except with the consent of the Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant
or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. If the Indemnified
Party fails to execute a release or other settlement agreement under
circumstances where all of the conditions of the preceding sentence
have been met, the Indemnifying Party shall have no further
obligation to the Indemnified Party pursuant to this Agreement or
otherwise.
18. CONFIDENTIALITY. The parties agree to hold each other's Proprietary or
Confidential Information in strict confidence. The parties agree not to
make each other's Proprietary or Confidential Information available in any
form to any third party or to use each other's Proprietary or Confidential
Information for any purpose other than as specified in this Agreement. Each
party's Proprietary or Confidential Information shall remain the sole and
exclusive property of that party. The parties agree that in the event of
use or disclosure by the other party other than as specifically provided
for in this Agreement, the non-disclosing party may be entitled to
equitable relief. Notwithstanding termination or expiration of this
Agreement, HMI and Client acknowledge and agree that their obligations of
confidentiality with respect to Proprietary or Confidential Information
shall continue in effect for a total period of three (3) years from the
Effective Date.
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19. FORCE MAJEURE. Except with regard to payment obligations, either party
shall be excused from delays in performing or from failing to perform its
obligations under this Agreement to the extent the delays or failures
result from causes beyond the reasonable control of the party, including,
but not limited to: default of subcontractors or suppliers; failures or
default of third party software, vendors, or products; acts of God or of
the public enemy; U.S. or foreign governmental actions; strikes;
communications, network/internet connection, or utility interruption or
failure; fire; flood; epidemic; and freight embargoes.
20. CHOICE OF LAW; VENUE; LIMITATION OF ACTIONS. This Agreement shall be
governed and construed in accordance with the laws of the United States and
the State of Florida, and the parties consent to the sole and exclusive
jurisdiction of the state courts and U.S. federal courts having
jurisdiction in Pinellas County, Florida for any dispute arising out of
this Agreement. No action by HMI or Client arising under this Agreement may
be brought at any time more than two (2) years after the facts occurred
upon which the cause of action arose.
21. INDEPENDENT CONTRACTOR STATUS. Client and HMI agree that HMI shall perform
its duties under this Agreement as an independent contractor.
22. NOTICES. Any written notice or demand required by this Agreement shall be
sent by registered or certified mail (return receipt requested), personal
delivery, overnight commercial carrier, or other guaranteed delivery to the
other party at the address set forth herein. The notice shall be effective
(a) as of the date of delivery if the notice is sent by personal delivery,
overnight commercial courier or other guaranteed delivery, and (b) as of
five (5) days after the date of posting if the notice is transmitted by
registered or certified mail.
23. ENTIRE AGREEMENT. This Agreement and all exhibits, schedules, and Change
Order(s) set forth the entire agreement between the parties with regard to
the subject matter hereof. No other agreements, representations, or
warranties have been made by either party to the other with respect to the
subject matter of this Agreement, except as referenced herein. This
Agreement may be amended only by a written agreement signed by both
parties.
24. DISPUTES. Client and HMI agree to make a good-faith effort to resolve any
disagreement arising out of, or in connection with, this Agreement through
negotiation. Should the parties fail to resolve any such disagreement
within ten (10) days, any controversy or claim arising out of or relating
to this Agreement, including, without limitation, the interpretation or
breach thereof, shall be submitted by either party to arbitration in
Pinellas County, Florida and in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. The arbitration shall be
conducted by one arbitrator, who shall be (a) selected in the sole
discretion of the American Arbitration Association administrator and (b) a
licensed attorney with at least ten (10) years experience in the practice
of law and at least five (5) years experience in the negotiation of
technology contracts or litigation of technology disputes. The arbitrator
shall have the power to enter any award that could be entered by a judge of
the state courts of Florida sitting without a jury, and only such power,
except that the arbitrator shall not have the power to award punitive
damages, treble damages, or any other damages which are not compensatory,
even if permitted under the laws of the State of Florida or any other
applicable law. The arbitrator must issue his or her resolution of any
dispute within thirty (30) days of the date the dispute is submitted for
arbitration. The written decision of the arbitrator shall be final and
binding and enforceable in any court having jurisdiction over the parties
and the subject matter of the arbitration. Notwithstanding the foregoing,
this Section shall not preclude either party from seeking temporary,
provisional, or injunctive relief from any court.
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25. SEVERABILITY. In the event that a court finds any provision of this
Agreement invalid and/or unenforceable, the parties agree that the
remaining provisions shall remain valid and in force.
26. WAIVER. Neither party shall be deemed by mere lapse of time (without giving
notice or taking other action hereunder) to have waived any breach by the
other party of any of the provisions of this Agreement. Further, the waiver
by either party of a particular breach of this Agreement by the other party
shall not be construed as, or constitute, a continuing waiver of such
breach, or of other breaches of the same or other provisions of this
Agreement.
27. SURVIVAL. The following provisions shall survive termination or expiration
of this Agreement: Sections 10 (Fees, Expenses, and Payment), 11
(Intellectual Property Rights and License), 12 (Term and Termination), 14
(Disclaimer of Warranties), 15 (Limitation of Liability), 16 (Third Party
Disclaimer), 17 (Indemnification Obligations) 18 (Confidentiality), 20
(Choice of Law; Venue; Limitation of Actions), 24 (Disputes), and 27
(Survival).
28. DAYS. Unless indicated otherwise, all references to "days" shall mean
calendar days.
29. COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts and all counterparts so executed shall for all purposes
constitute one agreement, binding on all parties.
30. APPROVAL. This Agreement shall not be binding upon HMI until it has been
approved by HMI's legal department and signed by an officer of HMI.
The parties have executed this Agreement by their duly authorized
representatives as of the Effective Date.
HMI CLIENT
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HYDROGEN MEDIA, INC. THE PUBLISHING COMPANY OF NORTH AMERICA,
INC.
By: /s/ Xxxxx X. Xxxxxxxx, C.O.O.
---------------------------------
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Chief Operating Officer
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Title:
----------------------------------
Address:
Address:
0000 Xxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000 000 X.X.X.X. Xxxxxxx
Xxxx Xxxxx, XX 00000
LEGAL DEPARTMENT APPROVAL:
This Agreement was approved by the HMI legal department on the 24th day of May,
2000.
/s/ Xxxxxxx Xxxxxx
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Approved HMI officer
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EXHIBIT A
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PROJECT OUTLINE
The scope of the project is as follows:
XXXXXXXXX.XXX
PROJECT SCOPE
PHASE ONE SITE DEVELOPMENT DETAILS
***CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
SITE CONTENT AND FUNCTIONALITY
**CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
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**CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
10
**CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
11
**CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
12
**CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
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EXHIBIT B
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CHANGE ORDER NO. _____
This CHANGE ORDER NO. _____ (hereinafter referred to as the "Change Order")
is effective as of the _____ day of _______________ 2000 by and between HYDROGEN
MEDIA, INC. ("HMI"), a Florida corporation and ________________________, a
_______________ corporation ("Client").
WHEREAS, Client and HMI entered into that certain Web Site Development
Agreement dated as of the _____ day of ________________ 2000 (the "Agreement")
for the development of the Web Site.
WHEREAS, Sections 1 (Development of the Web Site), 2 (Acceptance of
Deliverables), and 3 (Change Orders) of the Agreement, require HMI and Client to
enter into a Change Order prior to the modification of the System Specifications
or a deliverable, setting forth the details and specifications necessary for
completion of the modifications.
NOW, THEREFORE, in consideration of the mutual promises described below,
HMI and Client, intending to be mutually bound, agree to the following terms and
conditions:
1. SCOPE OF SERVICES. HMI shall perform the services as described in
SCHEDULE I attached.
2. CLIENT SCOPE OF SERVICES. Client shall perform the services as
described in SCHEDULE II.
3. COMMENCEMENT AND COMPLETION OF SERVICES. Unless otherwise agreed in
writing by the parties, the services shall be completed in accordance
with the deliverable schedule attached hereto as SCHEDULE III.
4. PAYMENT. Payment to HMI for performance of the services described in
this Change Order shall be as set forth in SCHEDULE IV.
5. LOCATION OF PERFORMANCE. The services described above shall be
performed at HMI.
6. HMI PROJECT MANAGER. The HMI Project Manager for performance of the
services is _______________.
7. CLIENT PROJECT MANAGER. The Client Project Manager for performance of
the services is _______________.
9. INCORPORATION BY REFERENCE. The terms and conditions of the Agreement
are hereby incorporated by reference and made a part of this Change
Order. When executed and dated by HMI, this Change Order (and any
attached Schedule or other documentation) shall have effect as a
binding contract as provided in Section 3 (Change Orders) of the
Agreement. The parties intend that the terms and conditions of the
Agreement and the Change Order be complementary with each other;
however, in the event of a conflict between the terms and conditions
of this Change Order and those of the Agreement, the terms and
conditions of the Agreement shall take precedence and control over
those of this Change Order.
HMI: CLIENT:
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HYDROGEN MEDIA, INC.
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By: By:
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Name: Name:
-------------------------------- ---------------------------
Title: Title:
------------------------------- --------------------------
Date: Date:
-------------------------------- ---------------------------
14
EXHIBIT C
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PIGGYBACK REGISTRATION RIGHTS
[This exhibit was not completed at the time of execution of the agreement and
has not yet been completed as of the time of this filing.]
