Ex 99.2
WEB SITE DEVELOPMENT AND HOSTING AGREEMENT
This Web Site Development and Hosting Agreement ("Agreement") is made and
entered into as of the 1 day of August, 2003 ("Effective Date"), by and between:
(a) Cinapsys, a Delaware Corporation, with offices at 000 X. 0xx Xx. Xxxxx
000-0, Xxxxx Xxx, XX 00000 ("Host"); and (b) FTS Apparel, a Colorado
Corporation, with offices at 000 Xxxxxx Xxxxxx Xxxx Xxxxx 0000 Xxxxxxx, XX
00000 ("Client"). Client and Host are collectively referred to as the
"parties".
1. SERVICES
a. Services. Host agrees to perform and provide to Client, services
consisting of non-exclusive electronic access to a digital information
processing, transmission and storage system (Server) to store Clients web site
(Site) and make the Site available on demand by users of the global computer
communications network (Internet) as set forth at Section 4 and specified at
Exhibit A (Hosting Services) and to provide Client with additional services as
set forth at Exhibit B (Additional Services). The Hosting Services and any
Additional Services are collectively referred to as the Services.
b. Web Development Host agrees to develop a website for Client. The Website
will be informational in nature, provide financial data on the Client's Company,
and function as a resource for the employees, investors and the public to
retrieve information on the Client's business. The Client must approve of the
overall development prior to going live on the Internet with the website.
c. Host Materials. In connection with performance of the Services, Host
shall provide to Client certain materials, including, without limitation,
software (in object code or source code form) necessary to operate and maintain
the Site, data, documentation or information developed or provided by Host or
its suppliers under this Agreement ("Host Materials").
d. Client Content. Host shall be responsible for providing, updating,
uploading and maintaining the Site and any and all files, pages, data, works,
information and/or materials on, within, displayed, linked or transmitted to,
from or through the Site, including, without limitation, trade or service marks,
images, photographs, illustrations, graphics, audio clips, video clips email or
other messages, metatags, domain names, software and text ("Client Content").
The Client Content shall also include any registered domain names provided by
Client or registered on behalf of Client in connection with the Services.
2. LICENSE
a. License of Client Content. In consideration of Hosts satisfactory
performance of all obligations of this Agreement, for the term of this
Agreement, Client grants to Host, and Host accepts from Client, a non-exclusive,
worldwide and royalty free license to copy, display, use and transmit on and via
the Internet the Client Content, solely for the benefit of Client and in
accordance with Hosts performance or enforcement of this Agreement.
b. License of Host Materials. In consideration of Clients performance of
its material obligations to Host expressly set forth in this Agreement, Host
grants to Client, and Client accepts from Host, a limited, non-transferable,
non-exclusive license, for the term of this Agreement, to copy and use the Host
Materials in connection with Clients operation and maintenance of the Site for
Clients internal business purposes.
c. Privacy. It is the policy of Host to respect Client's privacy. Host
will not disclose any personal information about Client, information in
connection with Client's use of the Services or Client Content, without Client's
prior consent, unless Host has a good faith belief that such action is necessary
to: (i) comply with legal process or other legal requirements of any court,
governmental authority or agency; (ii) protect or defend rights, interests or
property of Host; or (iii) enforce this Agreement.
3. PROPRIETARY RIGHTS
a. Ownership. Client shall retain all right, title and interest
(including copyright and other proprietary or intellectual property rights) in
the Client Content and all legally protectable elements, derivative works,
modifications and enhancements thereto, whether or not developed by Host, Client
or any contractor, subcontractor or agent for Host or Client. To the extent
that ownership of the Client Content does not automatically vest in Client by
virtue of this Agreement or otherwise, Host agrees to transfer and assign to
Client all right, title and interest in the Client Content and protectable
elements or derivative works thereof.
b. Alterations. Except as provided herein or by law, Host may not alter,
modify, change, remove or disable access to all or any portion of the Site or
Client Content stored on the Server for any reason.
c. Non-Disclosure. Host agrees to comply with all laws and regulations
applicable to the gathering, processing, storing, transmitting and dissemination
of personal information. Host will not disclose any personal information about
Client, information in connection with Clients use of the Services, Client
Content or Confidential Information, without Clients prior written consent,
unless such action: (i) is required by law or regulation, but only to the extent
and for the purposes of such law or regulation; (ii) is in response to a valid
order of a court or other governmental body but only to the extent of and for
the purposes of such order, and only if Host first notifies Client of the order
and permits Client to seek an appropriate protective order; or (iii) is with
written permission of Client, in compliance with any terms or conditions set by
Client regarding such disclosure.
4. HOSTING SERVICES TERMS AND OBLIGATIONS
a. Availability of Services. Subject to the terms and conditions of this
Agreement, Host shall use its best efforts to provide the Services for
twenty-four (24) hours a day, seven (7) days a week throughout the term of this
Agreement. Client agrees that from time to time the Services may be
inaccessible or inoperable for various reasons, including (i) equipment
malfunctions; (ii) periodic maintenance procedures or repairs which Host may
undertake from time to time; or (iii) causes beyond the control of Host or which
are not reasonably foreseeable by Host, including interruption or failure of
telecommunication or digital transmission links, hostile network attacks or
network congestion or other failures (collectively Downtime). Host shall
provide forty-eight (48) hour advance notice to Client in the event of any
scheduled Downtime. Host shall use its best efforts to minimize any disruption,
inaccessibility and/or inoperability of the Services in connection with
Downtime, whether scheduled or not. In the event of any Downtime, Client shall
be entitled to a pro rata reduction of any payments due and payable to Host for
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such period.
b. Backups. Host shall maintain backup servers and telecommunications
connections and maintain weekly backups of Client Content on such backup
servers. Hosts disaster recovery and contingency planning, equipment, software
and telecommunications connections shall enable Host to provide Services on and
from such backup servers within forty-eight (48) hours of any disruption of
Services.
c. Storage and Security. Host shall operate and maintain the Server in
good working order with access restricted to qualified employees of Host and
persons specifically designated by Client. Host shall undertake and perform the
measures set forth at Exhibit A to ensure the security, confidentiality and
integrity of all Client Content and other proprietary information transmitted
through or stored on the Server, including, without limitation: (i) firewall
protection; (ii) maintenance of independent archival and backup copies of the
Site and all Client Content; and (iii) protection from any network attack and
other malicious harmful or disabling data, work, code or program.
5. PAYMENT TERMS
a. Payment. Client shall pay Host for the Services and license hereunder
the amounts set forth at Exhibit C, and at such times provided by the payment
schedule specified therein. Client shall pay Host for any Additional Services
as specified at Exhibit B at the rate specified therein, within thirty (30) days
of invoice.
b. Taxes. The amounts stated in Exhibit C include all taxes, duties and
levies of any governmental entity, exclusive of taxes on Host's net income, and
Host shall be solely responsible for any such taxes, duties or levies.
c. Invoices. Client agrees that amounts of all properly payable invoices
shall be due and payable within thirty (30) days after receipt. In the event
Client disputes the amount charged, Services completed, or whether such invoice
is properly payable, the amount of such invoice will not be due and payable
until the parties resolve the dispute.
d. Expenses. All amounts stated in Exhibit C of this Agreement are
inclusive of all expenses. Host shall be solely responsible for payment of all
expenses arising from its performance of the Services, including, without
limitation, expenses for facilities, computer equipment, software, work space,
utilities, internet and/or telecommunications charges, management,
administrative and reproduction services and supplies.
6. WARRANTIES
a. Host Warranty. Host warrants to Client that: (i) Host has the right
and authority to enter into and perform its obligations under this Agreement;
(ii) Host shall perform the Services in a workmanlike manner and with the
highest professional diligence and skill; (iii) the Services, throughout the
term of this Agreement shall conform substantially to the provisions of this
Agreement and as set forth at Exhibits A and B; (iv) the Host Materials do not
and shall not contain any content, data, work, materials, link, advertising or
services that actually or potentially violate any applicable law or regulation
or infringe or misappropriate any proprietary, intellectual property, contract
or tort right of any person; (v) Host has and will have for the term of this
Agreement the right to grant the rights and license set forth at Section 2(b);
and (vi) the Server and Host Materials are and shall be Year 2000 Compliant.
The term "Year 2000 Compliant" means software or information technology that:
(i) processes accurately date/time data from, into, and between the twentieth
and twenty-first centuries, and the years 1999 and 2000 and leap year
calculations; and (ii) when used in combination with other software or
information technology, accurately processes date/time data, if the other
software or information technology properly exchanges and processes date/time
data.
b. Client Warranty. Client represents and warrants to Host that: (i)
Client has the power and authority to enter into and perform its obligations
under this Agreement; (ii) the Site and Client Content does not and shall not
contain any content, materials, data, work, trade or service xxxx, trade name,
link, advertising or services that actually or potentially violate any
applicable law or regulation or infringe or misappropriate any proprietary,
intellectual property, contract or tort right of any person; and (iii) Client
owns the Client Content and all proprietary or intellectual property rights
therein, or has express written authorization from the owner to copy, use and
display the Client Content on and within the Site.
7. LIMITATION OF LIABILITY
EXCLUSIVE OF LIABILITY UNDER SECTION 8 (INDEMNIFICATION), NEITHER PARTY
SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR
GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS
SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT,
TORT OR OTHERWISE EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
8. INDEMNIFICATION
a. By Host. Host agrees to indemnify, hold harmless and defend Client and
its directors, officers, employees and agents from and against any action,
claim, demand or liability, including reasonable attorneys fees and costs,
arising from or relating to: (i) Hosts actual or threatened breach of any
provision of Sections 3 and/or 6(a) of this Agreement; (ii) any gross negligence
or willful misconduct of Host; or (iii) any allegation that the Host Materials
infringe a third person's copyright or trademark right, or misappropriates a
third person's trade secrets. Host agrees that Client shall have the right to
participate in the defense of any such claim through counsel of its own
choosing.
b. By Client. Client agrees to indemnify, hold harmless and defend Host
and its directors, officers, employees and agents from and against any action,
claim, demand, dispute, or liability, including reasonable attorneys fees and
costs, arising from or relating to any allegation that the Site or Client
Content infringes a third person's copyright or trademark right, or
misappropriates a third person's trade secrets.
9. TERM AND TERMINATION
a. Term. The term of this Agreement shall commence on the Effective Date
and shall continue thereafter for one (1) year, unless sooner terminated by
either party.
b. Termination. This Agreement may be terminated: (i) by Client upon ten
(10) days written notice to Host; (ii) by Client in the event Host makes a
general assignment for the benefit of creditors, files a voluntary petition in
bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a
petition in bankruptcy is filed against Host, or if a receiver or trustee is
appointed for all or any part of the property or assets of Host; or (iii) by a
written agreement executed by the parties.
c. Return and Destruction. Upon any termination or expiration of this
Agreement, Host shall immediately deliver to Client all copies of Client
Content, the Site and Confidential Information in Hosts possession, custody or
control and erase and remove all copies of all Client Content, the Site and
Confidential Information from any computer equipment and media in Hosts
possession, custody or control.
d. Payment Upon Termination. In the event this Agreement is terminated,
Client shall pay Host for all Services, Additional Services and work undertaken
in performance of its obligations hereunder up to the date of termination. Such
payment is due and payable upon Hosts submission to Client of: (i) a properly
payable invoice; (ii) a detailed record that documents the extent to which
performance of Services was completed through such date of termination; and
(iii) written certification of Hosts compliance with Section 9(c).
10. CONFIDENTIALITY
a. Confidential Information. Client may provide to Host certain
confidential, proprietary and trade secret business or technical information of
Client or third persons in connection with Hosts performance of the Services
(Confidential Information). Confidential Information shall be clearly marked
and designated as Confidential. Host agrees to preserve the confidentiality of
all Confidential Information that is provided by Client in connection with the
Agreement, and shall not, without the prior written consent of Client, disclose
or make available to any person, or use for its own or any other persons
benefit, other than as necessary in performance of its obligations under this
Agreement, any Confidential Information of Client. Host shall exercise a
commercially reasonable level of care to safeguard Confidential Information of
Client against improper disclosure or use.
b. No Host Confidential Information. Host agrees not to disclose to Client
any Confidential Information of Host or of any other person. Host represents
and warrants that any information provided to Client in the performance of this
Agreement is not and shall not be Confidential Information.
11. PUBLICITY
Host may not: (a) use the Site or Client Content, including, without
limitation, any trade or service xxxx, trade name or domain name of Client, in
advertising or publicity on or via any media; or (b) directly or indirectly
represent that any product or service offered by Host has been contracted for,
purchased, retained, approved or endorsed by Client.
12. GENERAL
a. Independent Contractors. The parties and their respective personnel,
are and shall be independent contractors and neither party by virtue of this
Agreement shall have any right, power or authority to act or create any
obligation, express or implied, on behalf of the other party.
b. Assignment. Host may not assign any of its rights, duties or
obligations under this Agreement to any person or entity, in whole or in part,
and any attempt to do so shall be deemed void and/or a material breach of this
Agreement.
c. Waiver. No waiver of any provision hereof or of any right or remedy
hereunder shall be effective unless in writing and signed by the party against
whom such waiver is sought to be enforced. No delay in exercising, no course of
dealing with respect to, or no partial exercise of any right or remedy hereunder
shall constitute a waiver of any other right or remedy, or future exercise
thereof.
d. Severability. If any provision of this Agreement is determined to be
invalid under any applicable statute or rule of law, it is to that extent to be
deemed omitted, and the balance of the Agreement shall remain enforceable.
e. Notice. All notices shall be in writing and shall be deemed to be
delivered when received by certified mail, postage prepaid, return receipt
requested, or when sent by facsimile or e-mail confirmed by call back. All
notices shall be directed to the parties at the respective addresses given above
or to such other address as either party may, from time to time, designate by
notice to the other party.
f. Amendment. No amendment, change, waiver, or discharge hereof shall be
valid unless in writing and signed by both parties.
g. Law. This Agreement shall be governed in all respects by the laws of
the State of California without regard to its conflict of laws provisions.
h. Survival. The definitions herein and the respective rights and
obligations of the parties under Sections 3, 5(b), 5(d), 6, 7, 8, 9, 10, 11 and
12 shall survive any termination or expiration hereof.
i. Time. The parties agree that time is of the essence in the performance
of the respective obligations under this Agreement.
j. Entire Agreement. This Agreement, together with Exhibits A, B and C,
which are incorporated by reference, constitutes the complete and exclusive
statement of all mutual understandings between the parties with respect to the
subject matter hereof, superseding all prior or contemporaneous proposals,
communications and understandings, oral or written.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date indicated below.
CINAPSYS, INC. CLIENT
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxx Xxxxxx Name: Xxxxx Xxxxxxxxx
Title: COO Title: President, CEO
Date: August 1, 2003 Date: August 1, 2003
RETURN THE SIGNED COPY OF THIS CONTRACT IN ITS ENTIRETY TO:
FAX: 000-000-0000
ATTN: XX. XXXX XXXXXX, COO
NOTE THAT THERE ARE SUBSEQUENT EXHIBIT AREAS WHICH NEED TO BE FILLED OUT AND
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SIGNED BELOW
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EXHIBIT A
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Client Identifying Information
CLIENT INFORMATION MAIN CONTACT
FTS Apparel, Inc. Xxxxx Xxxxxxxxx
000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Email: xxxxxxxxxx@xxx.xxx TECHNICAL CONTACT
_____________________________
Name
_____________________________
Email Address
Client's Registered Domain Names
XXX.XXXXXXXXXX.XXX
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XXX.XXXXXXXXXXX.XXX
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XXX.XXXXXXXXXXX.XXX
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XXX.XXXXXXXXXXXXX.XXX
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XXX.XXXXXXXXXXXXXXX.XXX
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BILLING CONTACT
Xxxxx Xxxxxxxx, President and CEO
EXHIBIT B
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Hosting Services
Host will provide client with website hosting on a non-dedicated Unix Platform.
The Hosting package shall include the following:
Pop Email Boxes . . . 100
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Server Space. . . . . 1000MB
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Site Traffic. . . . . 15Gig
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Auto Responders . . . 100
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Email Aliases . . . . Unlimited
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Site Stats. . . . . . Y
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Mail Manager. . . . . Y
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Control Panel . . . . Y
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FrontPage Ext . . . . Y
===================== =========
Counter . . . . . . . Y
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Protected Directories Y
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Anon FTP. . . . . . . Y
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SSH . . . . . . . . . Y
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FTP Accounts. . . . . 10
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Mysql Databases . . . Y
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Secure Server . . . . Y
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Sub domains . . . . . 25
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File Manager. . . . . Y
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PHP4/SSI. . . . . . . Y
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CGI-BIN . . . . . . . Y
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Search Engine . . . . Y
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Mime Types. . . . . . Y
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Shopping Cart . . . . Y
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Cold Fusion . . . . . Y
===================== =========
EXHIBIT C
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Payment Terms and Schedule
INITIAL FEES:
HOSTING FEE: $700.00/MO.
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DEVELOPMENT FOR SATELLITE SITE $8,000.00
________________________________________________________________________________
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TOTAL RECURRING HOSTING AND MAINTENANCE FEE: $700.00/MO. 12 MONTHS
TOTAL ONE-TIME DEVELOPMENT FEE $8,000.00
PAYMENT TO BE MADE USING S8 STOCK OF THE COMPANY, OTC BB TICKER SYMBOL FLIP.
THE AMOUNT OF THE PAYMENT SHALL BE 50,000 SHARES. CINAPSYS AGREE'S NOT TO SELL
MORE THAN 10,000 SHARES ON ANY GIVEN MONTH OR 30 DAY PERIOD.
EXHIBIT D
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Method of Payment
Please specify your method of payment:
WIRE TRANSFER
Xxxxx Fargo
00000 Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx, XX 00000
(000) 000-0000
ABA# 000000000
Acct.# 2777707999
Cinapsys, Inc.
CHECK (CASHIER'S OR MONEY ORDER ONLY)
All checks shall be made payable to Cinapsys, Inc.
Please mail checks to:
Cinapsys, Inc.
000 X. 0xx Xx.
Xxxxx Xxx, XX 00000
STOCK
0000 Xxxxxx xx xxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Name of Account: Cinapsys, Inc.
Acct.# 13475660
DTC Number: 0632
Broker: Xxxx Xxxxxx
Phone: 000-000-0000
