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DEVELOPMENT SERVICES AGREEMENT
This Development Services Agreement (the "Agreement") is entered into as of
March 31, 2000 (the "Effective Date") by and between XXxxx.xxx, a Delaware
corporation with offices at 0000 X. Xxxxxxx'x Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000,
("XXxxx.xxx"), and Xxxxx.xxx, Inc., a Delaware corporation with offices at 000
X. 00xx Xxxxxx, Xxx Xxxx, XX 00000 ("Client").
This Agreement covers the purchase and license of consulting, development
and other services from XXxxx.xxx, pursuant to orders placed by Client and
accepted by XXxxx.xxx after the Effective Date.
This Agreement includes the following attachments, which are incorporated
herein by this reference:
Attachment 1 XXxxx.xxx Development Services
Any notice required or permitted under this Agreement will be in writing
and delivered to the address set forth below, or to such other notice address as
the other party has provided by written notice.
THIS AGREEMENT, INCLUDING THE ATTACHMENTS LISTED ABOVE, CONSTITUTES THE
COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES WITH REFERENCE TO THE
SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PRIOR SALES PROPOSALS, NEGOTIATIONS,
AGREEMENTS AND OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN.
IF THERE IS ANY CONFLICT BETWEEN THE TERMS AND CONDITIONS OF CLIENT'S PURCHASE
ORDER (OR ANY OTHER PURCHASE OR SALES DOCUMENT) AND THE TERMS AND CONDITIONS OF
THIS AGREEMENT, THIS AGREEMENT SHALL CONTROL. THIS AGREEMENT MAY BE MODIFIED,
REPLACED OR RESCINDED ONLY IN WRITING, AND SIGNED BY A DULY AUTHORIZED
REPRESENTATIVE OF EACH PARTY.
AGREED:
XXxxx.xxx Client: Xxxxx.xxx, Inc.
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--------------------------------- ---------------------------------
By: /s/ XXXXX XXXXXXXXXXX By: /s/ XXXX XXXXXX
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(Authorized Signature) (Authorized Signature)
Xxxxx Xxxxxxxxxxx - Senior Vice Xxxx XxXxxx, Vice President
President and Chief Financial ---------------------------------
Officer (Printed Name and Title)
---------------------------------
(Printed Name and Title)
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ATTACHMENT 1
XXXXX.XXX DEVELOPMENT SERVICES
ARTICLE I
DEFINITIONS
"Client Web Site(s)" shall mean the so-called "web page" site or sites on
the World Wide Web, for the public Internet or for corporate intranets or
extranets, to be developed or serviced by XXxxx.xxx hereunder, as identified in
the appropriate Schedule(s).
"Content" shall mean marketing collateral, data, text, audio files, video
files, graphics and other materials provided by Client or developed hereunder
for use with the Client Web Site, but excluding the XXxxx.xxx Software.
"Development Services" shall mean design, development, and set-up services
as necessary to modify existing XXxxx.xxx technology, trade secrets and
know-how to produce the XXxxx.xxx Software and/or Modified XXxxx.xxx Software
and other elements of the Client Web Site, and/or any other consulting services
rendered hereunder as identified in the appropriate schedules ("Schedule(s)")
attached hereto.
"Liquidation" shall mean (i) the commencement by XXxxx.xxx or any of its
subsidiaries of a voluntary case or other proceeding seeking liquidation,
winding-up, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency, moratorium or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or has consented to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or has made a general assignment for the
benefit of creditors or (ii) an involuntary case or other proceeding has been
commenced against the XXxxx.xxx or any of its subsidiaries seeking liquidation,
winding-up, reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency, moratorium or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and unstayed
for a period of sixty (60) days, or an order for relief has been entered against
the XXxxx.xxx under the federal bankruptcy laws as now or hereafter in effect.
"Modified Content" shall have the meaning ascribed to such term in Section
3.1(a).
"Modified XXxxx.Xxx Software" shall have the meaning ascribed to such term
in Section 3.1(a).
"XXxxx.xxx Software" shall mean all pre-existing computer program code
developed by XXxxx.xxx that are delivered by XXxxx.xxx to Client pursuant to
this Agreement.
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Such XXxxx.xxx Software shall be provided in object code form unless the parties
mutually agree in writing to delivery of source code.
ARTICLE II
SERVICES
2.1 DEVELOPMENT SERVICES.
XXxxx.xxx shall render Development Services in accordance with the
requirements set forth in Schedules attached hereto. Each Schedule for new
services shall be successively numbered (e.g., 1,2, etc.). Each schedule shall
be executed by the parties and shall be subject to the terms and conditions of
this Agreement. XXxxx.xxx shall provide qualified and trained personnel to
render such Development Services and shall use commercially reasonable efforts
to meet the delivery schedule set forth in the applicable Schedules. In the
event that XXxxx.xxx fails to provide the Delivery Services in accordance with
the terms of this Agreement of any Schedule hereto, the delivery schedule shall
be extended by the number of days that delivery of the Development Services was
delayed, unless Client notifies XXxxx.xxx that this extension will not rectify
Client's business interruption resulting from XXxxx.xxx's delay in which case
such delay may result in XXxxx.xxx's credit to the account of Client in an
amount to be mutually agreed upon between XXxxx.xxx and Client, in which case
the parties shall mutually agree upon a new schedule for provisions of
Development Services at XXxxx.xxx's expense. Any additions, deletions or other
changes to a Schedule shall be mutually agreed to in writing in advance by both
parties and shall be memorialized in a revised Schedule pursuant to the
procedure set forth in Section 2.6 below for Change Orders. All services shall
be performed at XXxxx.xxx's offices unless otherwise agreed by the parties. In
the event that services are performed at Client's location or at a location
designated by Client for its operations. Client shall provide XXxxx.xxx at no
charge with all necessary facilities and equipment, including without
limitation, computer time on Client's computers and office space, sufficient to
render the services contemplated hereunder. Client shall deliver to XXxxx.xxx
all Content selected by Client for incorporation into any Client Web Site in
digitized format in accordance with the delivery schedule set forth in the
applicable Schedule(s). In the event that Client fails to deliver the Content in
accordance with the delivery schedule, the development schedule shall be
extended by the number of days that delivery of the Content was delayed, unless
XXxxx.xxx notifies Client that this extension will not rectify XXxxx.xxx's
scheduling interruption resulting from Client's delay in which case such delay
may also result in additional charges to Client in an amount to be mutually
agreed upon between XXxxx.xxx and Client, in which case the parties shall
mutually agree upon a new delivery schedule and fees with respect to the
rendition of the Development Services.
2.2 ACCEPTANCE OF DELIVERABLES.
Within thirty (30) days after the delivery to Client of any deliverable
pursuant to any Schedule, Client shall provide XXxxx.xxx with written notice of
any failure of any deliverable to materially conform to the functional
specifications set forth in the applicable Schedule. XXxxx.xxx and Client shall
review the objections, and XXxxx.xxx will use commercially
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reasonable efforts to correct any material non-conformities with the functional
specifications and provide Client with a revised deliverable within thirty (30)
days. Client shall have deemed to have accepted the deliverable if XXxxx.xxx
does not receive written notice of Client's objections within said thirty (30)
day period.
2.3 DOMAIN NAME REGISTRATION SERVICES.
If domain name registration services are included in the Schedule,
XXxxx.xxx shall use commercially reasonable efforts to assist Client in
registering an Internet domain name selected by Client. Client will be solely
responsible for all out-of-pocket costs and all legal clearances regarding name
selection and registration.
2.4 MAINTENANCE SERVICES.
If Client desires to purchase maintenance services from XXxxx.xxx for the
Client Web Site, the parties shall execute the then current XXxxx.xxx
Maintenance Services Agreement (a sample of which is attached hereto) and
XXxxx.xxx shall render maintenance services pursuant to the terms and conditions
of such agreement; provided however, that the rates contained in such
Maintenance Service Agreement (i) for the first twelve (12) months following the
date of this Agreement shall not increase, (ii) for the next twelve (12) months,
shall not increase more than the Consumer Price Index in effect at the beginning
of such twelve month period and (iii) thereafter at a rate mutually agreed upon
by XXxxx.xxx and Client.
2.5 HOSTING SERVICES.
If Client desires to purchase hosting services from XXxxx.xxx for the
Client Web Site, the parties shall execute the then current XXxxx.xxx Hosting
Services Agreement, and XXxxx.xxx shall render hosting services pursuant to the
terms and conditions of such agreement.
2.6 CHANGE ORDERS.
If Client desires to make changes to an existing Schedule, the parties
shall mutually agree upon an additional or revised Schedule for each new Change
Order. Each such Schedule shall be successively numbered (e.g., 1.A, 1.B,
etc.) and shall be executed by the parties. Any revised Schedule(s) shall be
subject to the terms and conditions of this Agreement.
ARTICLE III
OWNERSHIP AND LICENSE RIGHTS
3.1 PROPERTY RIGHTS AND OWNERSHIP.
(a) The Client Web Site(s) and all other results and proceeds of
XXxxx.xxx's services hereunder, shall consist of, and shall operate in
conjunction with, multiple elements of intellectual property, including without
limitation the XXxxx.xxx Software and the Client Content. The parties'
respective rights to such elements shall be as set forth below. For purposes of
this Agreement, the term "ownership" shall refer to ownership of all
intellectual property rights
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including, but not limited to, all patent, copyright, trade secret and trademark
rights, as applicable, with respect to the subject intellectual property.
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INTELLECTUAL PROPERTY ELEMENTS OWNERSHIP/RIGHTS
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Client Content, including all enhancements Client has sole ownership.
of, modifications to and derivative works
created from Client Content by XXxxx.xxx
("Modified Content") and HTML files that
contain Client Content, and modifications
to Content as a result of Client's usage of
self-authoring tools.
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Content created for Client by XXxxx.xxx and Client has sole ownership.
accepted and paid for by Client, as well as
commissioned Content authored by third
parties specifically for use in connection
with this Agreement and paid for by Client
(e.g., original illustrations or graphics).
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Domain name for Client Web Site. Client has sole ownership.
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Server usage report data/statistics Client has sole ownership of
generated by the XXxxx.xxx Software data/statistics, and XXxxx.xxx
in form and substance as set forth in shall be granted a limited
the applicable Schedule or as mutually license pursuant to Section
agreed by the parties. 3.3 below.
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Commercially available third-party software Third parties have ownership,
that is incorporated into the XXxxx.xxx and Client shall be informed
Software. of all third-party software
that Client may need to
license at Client's own
expense.
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XXxxx.xxx Software developed by or for XXxxx.xxx has sole ownership
XXxxx.xxx in connection with this of such XXxxx.xxx Software.
Agreement for Client which does not Client shall be granted a
incorporate, utilize or borrow concepts license to use the XXxxx.xxx
in any manner from Client Content or Software as set forth in
Modified Content. Section 3.2.
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XXxxx.xxx Software developed by or for Client has sole ownership of
XXxxx.xxx in connection with this of such Modified XXxxx.xxx
Agreement for Client which does Software. XXxxx.xxx shall be
incorporate, utilize or borrow concepts granted a limited license to
from Client Content or Modified Content use such Modified XXxxx.xxx
("Modified XXxxx.xxx Software"). Software as set forth in
Section 3.3.
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XXxxx.xxx supplied material developed XXxxx.xxx has sole ownership
generally to support XXxxx.xxx products of such developed material.
and/or service offerings (e.g. httpd Client shall be granted a
configuration). license to use the XXxxx.xxx
Software as set forth in
Section 3.2 below.
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(b) It is the intention of the parties that Client retain all ownership
interests in the Content, the Modified Content and the Client Web Site, as
applicable. XXxxx.xxx shall have no right, title or interest in the Content or
the Modified Content, except for the license to use the Content or the Modified
Content as provided herein. The Client shall be the sole and exclusive owner of
the copyrightable aspects of the graphical user interface of the Client Web
Site, the name of the Client Web Site, all URLs for the Client Web Site and all
information obtained from visitors to the Client Web Site. In addition, all
Modified Content shall be deemed to be works made for hire, in accordance with
the copyright laws of the United States under the direction and control of
Client. Client shall be the proprietor of the Modified Content and all right,
title and interest therein throughout the world including, without limitation,
the copyright and all rights under the copyright therein. To the extent that it
is determined that any aspect of the Modified Content does not qualify as a work
made for hire within the meaning of the copyright laws of the United States,
then XXxxx.xxx shall be deemed to have hereby irrevocably transferred and
assigned to Client all of its right, title and interest, throughout the world
and in perpetuity, in and to the Modified Content, including without limitation
all of its right, title and interest in copyright, and all rights under
copyright therein including but not limited to all renewals and extensions
thereof, reverted copyrights and rights of copyright reversion, all applications
and registration materials therefor, and all rights to recover for prior
infringements relating to the Modified Content, free of any claim by XXxxx.xxx
or any other person or entity.
(c) It is the intention of the parties that Client retain all ownership
interests in the Modified XXxxx.xxx Software. Accordingly, XXxxx.xxx shall
deliver the Source Code (as defined below) to Client for the Modified XXxxx.xxx
Software in which the Client shall have the sole, indefeasible proprietary
interest. XXxxx.xxx shall have no right, title or interest in or to the Modified
XXxxx.xxx Software or the Source Code, except for the license to use the
Modified XXxxx.xxx Software as provided herein. All Modified XXxxx.xxx Software
shall be deemed to be works made for hire, in accordance with the copyright laws
of the United States under the direction and control of Client. Client shall be
the proprietor of the Modified XXxxx.xxx Software and all right, title and
interest therein throughout the world including, without limitation, the
copyright and all rights under the copyright therein. To the extent that it is
determined that any aspect of the Modified XXxxx.xxx Software does not qualify
as a work made for hire within the meaning of the copyright laws of the United
States, then XXxxx.xxx shall be deemed to have hereby irrevocably transferred
and assigned to Client all of its right, title and interest, throughout the
world and in perpetuity, in and to the Modified XXxxx.xxx Software, including
without limitation all of its right, title and interest in copyright, and all
rights under copyright therein including but not limited to all renewals and
extensions thereof, reverted copyrights and rights of copyright reversion, all
applications and registration materials therefor, and all rights to recover for
prior infringements relating to the Modified XXxxx.xxx Software, free of any
claim by XXxxx.xxx or any other person or entity.
For purposes of Section 3.1(c) the term "Source Code" shall mean all or any part
of the machine-readable (but including transcriptions or other representations
thereof, in tangible or intangible form, and on any media whatsoever),
uncompiled (but otherwise regardless of format) instruction set, the totality of
which permits operation of the Modified XXxxx.xxx Software.
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3.2 LICENSE TO CLIENT.
XXxxx.xxx grants Client a non-exclusive, non-transferable license to use
the XXxxx.xxx Software on a single computer in object code version only to
operate and display the Client Web Site in order for end users to access the
Client Web Site; provided, however, that Client, with the consent of XXxxx.xxx,
which consent shall not be unreasonably withheld, shall be able to utilize the
XXxxx.xxx Software on multiple computers at different locations (i.e., "mirror
sites") to handle heavy or increased volume on the Client Web Site. If the
XXxxx.xxx Software is not developed for use on a Client Web Site, then the
foregoing license shall constitute a non-exclusive, non-transferable license to
use the XXxxx.xxx Software on a single computer in object code version only for
Client's internal business needs. Client may transfer the XXxxx.xxx Software to
a different computer so long as the XXxxx.xxx Software is not retained on the
prior computer on which it was initially installed other than as a permitted
backup copy. Client may grant a sublicense to a third party that Client engages
to host the Client Web Site; provided, that such third party agrees in writing
to be bound by the license and confidentiality restrictions set forth in this
Agreement. Client is prohibited from duplicating and/or distributing any
XXxxx.xxx Software without the prior written consent of XXxxx.xxx; provided,
however that Client may copy the XXxxx.xxx Software only as needed for
reasonable ordinary backup or disaster recovery procedures. Client may use the
backup copies only if the installed copy is lost or destroyed or the hardware on
which the installed copy is installed becomes inoperable, provided that the use
of said backup copies is discontinued immediately when the original hardware
becomes operable.
3.3 LICENSE TO XXxxx.xxx.
Client grants XXxxx.xxx a limited, non-exclusive, non-transferable license
(i) to use, copy, and modify the Content in connection with XXxxx.xxx's
performance of the Development Services, (ii) to use, copy, modify, distribute
and display server usage data and statistics generated by the XXxxx.xxx Software
and (iii) to use, copy and modify the Modified XXxxx.xxx Software; provided,
however, that XXxxx.xxx shall not use in any manner the Modified XXxxx.xxx
Software with any person other than Client without the express written consent
of Client which consent shall not be unreasonably withheld.
3.4 SOURCE CODE ESCROW.
At the expense of Client, within thirty (30) days of the date hereof,
XXxxx.xxx shall deliver to Client in escrow, a fully commented and documented
copy of the source code for the XXxxx.xxx Software (the "XXxxx.xxx Source
Code"), a listing thereof and all relevant commentary, including explanation,
flow charts, algorithms and subroutine descriptions, memory and overlay maps and
other documentation of the XXxxx.xxx Source Code (the "Commentary") together
will all necessary codes, keys and all similar types of access information in
order to access all such XXxxx.xxx Source Code and to customize, modify, and
manipulate the related software programs. Client shall deposit materials in a
secure, environmentally safe, locked facility which is accessible only to
authorized representatives of the Client. Client shall have the obligation to
use its best efforts to protect and maintain the confidentiality of the deposit
materials. Client shall not disclose, transfer, make available, or use the
deposit materials and shall not disclose the contents of the deposit material to
any third party
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or to any unauthorized personnel. Upon the occurrence of a Liquidation,
XXxxx.xxx shall grant to Client a perpetual, non-exclusive, non-transferable,
limited license to use and copy the XXxxx.xxx Source Code, and to create
derivative works therefrom, thirty (30) days from such Liquidation. Client will
acknowledge and agree that such license shall not commence unless and until such
Liquidation occurs, and Client shall have no right to use the XXxxx.xxx Source
Code unless and until the occurrence and continuance of such Liquidation. If
XXxxx.xxx corrects any defects in, or provides any revision to, the XXxxx.xxx
Software hereunder, XXxxx.xxx shall simultaneously furnish the escrow agent with
a corrected or revised copy of such XXxxx.xxx Source Code, a revised listing
thereof, and revised Commentary. Without limiting the generality of this Section
3.4, it is the intention of the parties that Client shall have a license to use,
copy, modify, and maintain the XXxxx.xxx Source Code and related documentation
for the specific application for which it was granted hereunder in the event of
escrow release pursuant to this provision, such that Client shall be a licensee
of the XXxxx.xxx Source Code, which the parties agree and acknowledge
constitutes intellectual property as defined by Section 101(35A) of the United
States Bankruptcy Code, and be entitled to all the benefits granted to software
licensees under the provisions of the United States Bankruptcy Code including,
without limitation, Section 365(n) of Title 11 of the U.S. Code (11 U.S. 365(n).
3.5 SUPPORTING DOCUMENTS.
Each party agrees to execute any additional documents deemed reasonably
necessary to effect and evidence the other party's rights with respect to the
intellectual property elements set forth above.
3.6 NO REVERSE ENGINEERING.
(a) Client may not reverse engineer, reverse assemble, decompile or
otherwise attempt to derive the source code from the XXxxx.xxx Software.
(b) XXxxx.xxx may not reverse engineer, reverse assemble, decompile or
otherwise attempt to derive the source code from the Modified XXxxx.xxx Software
3.7 PROPRIETARY NOTICES.
All copies of the XXxxx.xxx Software and other XXxxx.xxx supplied materials
used by Client shall contain copyright and other proprietary notices
(appropriately placed) in the same manner in which XXxxx.xxx incorporates such
notices in the XXxxx.xxx Software or in any other manner requested by XXxxx.xxx.
Client agrees not to remove, obscure or obliterate any copyright notice,
trademark or other proprietary rights notices placed by XXxxx.xxx on or in the
XXxxx.xxx Software.
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ARTICLE IV
PAYMENT
4.1 DEVELOPMENT SERVICES.
Subject to the provisions of Section 4.6, in consideration for the
performance of the Development Services, Client shall pay to XXxxx.xxx the
amounts set forth in the applicable Schedule, on the payment dates set forth in
such Schedule. In the event that XXxxx.xxx renders services at Client's location
or any other location designated by Client for its operations, Client shall pay
the reasonable travel, living and related expenses for XXxxx.xxx personnel
rendering services at Client's location or any other location designated by
Client or its operations. All services hereunder shall be rendered on a time and
materials basis. All work will be billed at XXxxx.xxx's standard hourly rates,
which rates may be revised from time to time by XXxxx.xxx, in its sole
discretion, upon advance written notice to Client; provided however, that such
rates shall not be increased for a period of eighteen (18) months from the date
hereof. Amounts set forth in the applicable Schedule represent an estimate of
the hours required to complete the work outlined in such Schedule; in the event
that actual hours incurred to complete the work exceed those included in the
estimate, XXxxx.xxx and Client will mutually-determine the additional hours that
will be billed at XXxxx.xxx's standard hourly rates.
4.2 MAINTENANCE SERVICES.
If the parties have entered into a XXxxx.xxx Maintenance Services
Agreement, Client shall pay XXxxx.xxx the amounts set forth in said Maintenance
Services Agreement.
4.3 HOSTINGS SERVICES.
If the parties have entered into a XXxxx.xxx Hosting Services Agreement,
Client shall pay XXxxx.xxx the amounts set forth in said Hosting Services
Agreement.
4.4 TAXES.
In addition to the fees due as specified above, Client shall pay any and
all federal, state and local sales, use, value added, excise, duty and any other
taxes of any nature assessed upon or with respect to the license granted
hereunder, arising from this Agreement, except that taxes on XXxxx.xxx's income
shall be the sole responsibility of XXxxx.xxx.
4.5 PAYMENTS.
All payments made pursuant to this Agreement shall be made in U.S. Dollars
are due thirty (30) days from the date of invoice. Late payments shall bear
interest at one and one-half percent (1.5%) per month or the maximum rate
permitted by law, whichever is less. Notwithstanding anything to the contrary
contained herein, no payments by Client shall be due and payable prior to (i)
the closing of Client's Series A Preferred Stock financing of at least
$ * and (ii) the entering into of definitive documentation relating to an
agreement between Client and Nursefinders, Inc. for provision of varied
collateral, data and other items to
* This confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities
and Exchange Act of 1934, as amended.
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be mutually agreed upon between such parties; provided, however, that in no
event shall such period be longer than five (5) months from the date hereof.
ARTICLE V
LIMITED WARRANTY
5.1 SOFTWARE WARRANTY.
Subject to the limitations set forth in this Agreement, XXxxx.xxx warrants
only to Client that the XXxxx.xxx Software furnished hereunder when properly
installed, properly used and unmodified by Client in any material manner, will
substantially conform to the functional specifications set forth in the
applicable Schedule. XXxxx.xxx's warranty shall extend for a period of ninety
(90) days from the date that the final deliverables specified in each Schedule
are delivered to Client ("Warranty Period"). XXxxx.xxx's sole responsibility
under this Section 5.1 shall be to use commercially reasonable efforts to
promptly correct material errors, or at XXxxx.xxx's option, to refund Client's
fees paid for the XXxxx.xxx Software after deinstallation (which shall be at
XXxxx.xxx's sole expense) and return thereof. All warranty claims not made in
writing or not received by XXxxx.xxx within the Warranty Period shall be deemed
waived. XXxxx.xxx's warranty obligations are solely for the benefit of Client,
who has no authority to extend or transfer this warranty to any other person or
entity.
5.2 XXXXX.XXX DOES NOT WARRANT THAT THE USE OF THE XXXXX.XXX SOFTWARE WILL BE
UNINTERRUPTED OR ERROR FREE. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE,
XXXXX.XXX DOES NOT MAKE ANY WARRANTY AS TO THE XXXXX.XXX SOFTWARE OR THE
SERVICES PROVIDED HEREUNDER OR THE RESULTS TO BE OBTAINED FROM USE OF THE
XXXXX.XXX SOFTWARE. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, THE
XXXXX.XXX SOFTWARE IS USED AND THE SERVICES ARE PROVIDED ON AN "AS-IS" BASIS
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
USE WITH RESPECT TO THE INTERNET OR USE OF INFORMATION IN CONNECTION WITH THE
SOFTWARE.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
6.1 XXXXX.XXX.
(a) Representations and Warranties. XXxxx.xxx hereby represents and
warrants that:
(i) it has the full right, power and authority to enter into this
Agreement;
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(ii) this Agreement is the legal, valid and binding obligation of
XXxxx.xxx, enforceable against it in accordance with its terms, subject to
any applicable bankruptcy, reorganization, insolvency or any other laws
affecting creditor's rights generally or by general principles of equity;
and
(iii) the execution, delivery and performance of this Agreement shall
not conflict with or violate in any way any other agreement or other
arrangement with any third party and shall not violate any third party's
intellectual property rights.
(b) Indemnification. XXxxx.xxx shall indemnify, defend and hold harmless
Client, its officers, directors, agents and affiliates (the "Client Indemnified
Persons") from and against any and all claims, actions, damages, losses, costs,
liabilities and expenses (including without limitation, reasonable attorneys'
fees) sustained or incurred by the Client Indemnified Persons as a consequence
of (i) any third party claim, demand, assessment, judgment, order, decree,
action, cause of action, litigation, suit or other proceeding (a "Claim")
brought against the Client Indemnified Persons that the XXxxx.xxx Software
and/or the Modified XXxxx.xxx Software infringes any person's intellectual
property rights (including, without limitation, copyrights, patents, trade
secrets, trademarks, trademarks, etc.), (ii) any third party Claim brought
against the Client Indemnified Persons relating to the Development Service
provided by XXxxx.xxx of the Client Web Site, (iii) any misrepresentation or
breach of the representations and warranties of XXxxx.xxx made in this Agreement
or (iv) the nonfulfillment or breach of any covenants or agreements of XXxxx.xxx
provided in this Agreement; provided, however, that in each case (A) XXxxx.xxx
is given prompt notice of, and shall be given the opportunity to undertake and
conduct the defense of, any such claim, (B) the Client shall cooperate fully
with XXxxx.xxx in all material respects with any such defense and all related
settlement negotiations, (C) Client provides XXxxx.xxx with all reasonably
necessary assistance, information and authority to perform the foregoing at
XXxxx.xxx's expense and (D) XXxxx.xxx shall keep the Client fully advised of all
significant developments and shall not enter into a settlement of any claim on
behalf of the Client without the Client's prior written approval, which approval
shall not be unreasonably withheld.
(c) Limitations on Indemnification.
(i) XXxxx.xxx shall have no liability for any claim of infringement
pursuant to clause (a)(i) and (a)(ii) based on (i) use by Client of other
than the current update (which current update has been provided to Client)
of the XXxxx.xxx Software as long as such infringement would have been
avoided by uses of the current update provided to Client; (ii)
modifications, adaptations or changes to the XXxxx.xxx Software or
Modified XXxxx.xxx Software not made by XXxxx.xxx which such modifications,
adaptations or changes have caused such infringement, (iii) the combination
or use of the materials furnished hereunder with materials not furnished by
XXxxx.xxx if such infringement would have been avoided by use of the
XXxxx.xxx materials alone or (iv) Modified XXxxx.xxx Software which
infringement was solely a result of the addition of Content or Modified
Content. In the event the XXxxx.xxx Software is held to, or XXxxx.xxx
believes is likely to be held to, infringe the intellectual property rights
of a third party, XXxxx.xxx shall have the right at its sole option and
expense to (i) substitute or modify the XXxxx.xxx Software so that it is
non-infringing and qualitatively and functionally equivalent to the
XXxxx.xxx Software; (ii) obtain for Client a license to continue using the
XXxxx.xxx
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Software; or if neither (i) nor (ii) is commercially reasonable, XXxxx.xxx
shall have the right to terminate this Agreement immediately upon written
notice to Client, and XXxxx.xxx shall make immediate payment to Client of
an amount equal to the fees paid for the XXxxx.xxx Software and Development
Services.
(ii) XXxxx.xxx shall have no liability for any claim of
indemnification pursuant to clause (a)(iv) based on (i) any negligent act
or omission on the part of Client or (ii) Client's failure to comply with
its obligations hereunder.
6.2 CLIENT.
(a) Representations and Warranties.
(i) it has the full right, power and authority to enter into this
Agreement;
(ii) this Agreement is the legal, valid and binding obligation of
Client, enforceable against it in accordance with its terms, subject to any
applicable bankruptcy, reorganization, insolvency or any other laws
affecting creditor's rights generally or by general principles of equity;
and
(iii) the use of Content as contemplated herein shall not infringe the
copyright, trademark or other intellectual property rights of any party, or
constitute defamation, invasion of privacy, or the violation of any right
of publicity or any other right of any party.
(b) Indemnification. Client shall indemnify, defend and hold harmless
XXxxx.xxx, its officers, directors, agents and affiliates (the "XXxxx.xxx
Indemnified Persons") from and against any and all claims, actions, damages,
losses, costs, liabilities and expenses (including without limitation,
reasonable attorneys' fees) sustained or incurred by the XXxxx.xxx Indemnified
Persons as a consequence of (i) any third party Claim brought against the
XXxxx.xxx Indemnified Persons relating to the Content or Modified Content, (ii)
any third party Claim brought against the XXxxx.xxx Indemnified Persons relating
to the Modified XXxxx.xxx Software, (iii) any misrepresentation or breach of the
representations and warranties of the Client made in this Agreement or (iv) the
nonfulfillment or breach of any covenants or agreements of the Client provided
in this Agreement; provided, however, that in each case (A) the Client is given
prompt notice of, and shall be given the opportunity to undertake and conduct
the defense of, any such claim, (B) XXxxx.xxx shall cooperate fully with the
Client in all material respects with any such defense and related settlement
negotiations, (C) Client provides XXxxx.xxx with all reasonably necessary
assistance, information and authority to perform the foregoing at Client's
expense and (D) the Client shall keep XXxxx.xxx fully advised of all significant
developments and shall not enter into a settlement of any claim on behalf of
XXxxx.xxx without XXxxx.xxx's prior written approval, which approval shall not
be unreasonably withheld.
(c) Limitations on Indemnification.
(i) Client shall have no liability for any claim of infringement
pursuant to clause (a)(i) and (a)(ii) based on Modified XXxxx.xxx Software
which infringement was not due to the addition of Content of Modified
Content. In the event the Modified
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XXxxx.xxx Software is held to, or Client believes is likely to be held to,
infringe the intellectual property rights of a third party, Client shall
have the right at its sole option and expense to (i) substitute or modify
the XXxxx.xxx Software so that it is non-infringing and qualitatively and
functionally equivalent to the XXxxx.xxx Software; (ii) obtain for
XXxxx.xxx a license to continue using the XXxxx.xxx Software; or if
neither (i) nor (ii) is commercially reasonable, Client shall have the
right to terminate this Agreement immediately upon written notice to
Client, and XXxxx.xxx shall make immediate payment to Client of an amount
equal to the fees paid for the XXxxx.xxx Software and Development Services.
(ii) Client shall have no liability for any claim of indemnification
pursuant to clause (a)(iv) based on (i) any negligent act or omission on
the part of XXxxx.xxx or (ii) XXxxx.xxx's failure to comply with its
obligations hereunder.
ARTICLE VII
LIMITATIONS ON LIABILITY
EXCEPT IN CONNECTION WITH SECTION 6.1 OR 6.2, THE MAXIMUM LIABILITY OF
XXXXX.XXX, ITS DIRECTORS, OFFICERS, PARENT COMPANY, AND, AFFILIATES, TO CLIENT
FOR DAMAGES RELATING TO XXXXX.XXX'S FAILURE TO PERFORM SERVICES HEREUNDER SHALL
BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CLIENT TO XXXXX.XXX WITH
RESPECT TO SUCH SERVICES.
ARTICLE VIII
TERM AND TERMINATION
8.1 TERM.
Subject to this Article VIII, the term of this Agreement shall commence on
the Effective Date and continue until terminated by either party pursuant to
Section 8.2 or 8.3 below.
8.2 TERMINATION FOR CAUSE.
This Agreement may be terminated by (A) either party in the event of (i)
mutual written agreement of the parties; (ii) any material default in, or
material breach of, any of the terms and conditions of this Agreement by the
other party, which default continues in effect after the defaulting party has
been provided with written notice of default and thirty (30) days to cure such
default; (iii) the commencement of a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to either party of its
debts under any bankruptcy, insolvency, or other similar law now or hereafter in
effect, that authorizes the reorganization or liquidation of such party or its
debt or the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property; (iv) either
party's consent to
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any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it; or (v)
either party's making a general assignment for the benefit of creditors; or
either party's becoming insolvent; or either party taking any corporate action
to authorize any of the foregoing, (B) by Client pursuant to Section 6.2(c)(i)
and (C) by XXxxx.xxx pursuant to Section 6.1(c)(i).
8.3 EFFECT OF TERMINATION.
(a) If this Agreement is terminated by XXxxx.xxx pursuant to Sections
8.2(A)(ii)-(v), while XXxxx.xxx is performing any Development Services for
Client hereunder, Client shall immediately pay XXxxx.xxx the total fees actually
incurred to date by XXxxx.xxx associated with such incomplete project, as well
as all amounts due and owing for any projects already completed by XXxxx.xxx
hereunder or for any third-party products or services purchased by XXxxx.xxx on
Client's behalf. The foregoing shall be without limitation to XXxxx.xxx's rights
and remedies under this Agreement. Termination of the Agreement shall be in
addition to, and not in lieu of, any equitable or legal remedies available to
either party.
(b) If this Agreement is terminated by Client pursuant to Sections
8.2(A)(ii), Client shall not be obligated to pay any further fees pursuant to
this Agreement other than fees for Delivery Services already performed for
Client. The foregoing shall be without limitation to Client's rights and
remedies under this Agreement. Termination of the Agreement shall be in addition
to, and not in lieu of, any equitable or legal remedies available to either
party.
8.4 SURVIVAL.
Articles III, V, VII, VIII, IX and X shall survive any termination or
expiration of this Agreement; provided, however, that (i) if this Agreement is
terminated by XXxxx.xxx pursuant to Section 8.2 above (other than Section
8.2(i)), then Section 3.2 shall not survive and (ii) if this Agreement is
terminated by Client pursuant to Section 8.2 above (other than Section 8.2(i))
then Section 3.3 shall not survive.
ARTICLE IX
CONFIDENTIALITY
9.1 CONFIDENTIAL INFORMATION.
Each party acknowledges that, in connection with the performance of this
Agreement, it may receive certain confidential or proprietary technical and
business information and materials of the other party ("Confidential
Information").
9.2 CONFIDENTIALITY.
Each party hereby agrees: (i) to hold and maintain in strict confidence all
Confidential Information of the other party and not to disclose it to any third
party; and (ii) not to use any Confidential Information of the other party
except as permitted by this Agreement or as may be necessary to perform its
obligations under this Agreement. Each party will use at least the same degree
of care to protect the other party's Confidential Information as it uses to
protect its own
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Confidential Information of like importance, and in no event shall such degree
of care be less than reasonable care.
9.3 EXCEPTIONS.
Notwithstanding the foregoing, the parties agree that Confidential
Information will not include any information that: (i) is or becomes generally
known or is or becomes part of the public domain through no fault of the other
party, (ii) the first party authorizes to be disclosed; (iii) is rightfully
received by the other party from a third party without restriction on disclosure
and without breach of this Agreement; or (iv) is known to the other party on the
Effective Date from a source other than the first party, and not subject to a
confidentiality obligation.
9.4 INJUNCTIVE RELIEF.
Each party acknowledges that any breach of the provisions of this Article
IX may cause irreparable harm and significant injury to an extent that may be
extremely difficult to ascertain. Accordingly, each party agrees that the other
party will have, in addition to any other rights or remedies available to it at
law or in equity, the right to seek injunctive relief to enjoin any breach or
violation of this Article IX.
ARTICLE X
GENERAL PROVISIONS
10.1 FORCE MAJEURE.
In the event that either party is unable to perform any of its obligations
under this Agreement or to enjoy any of its benefits because of any event beyond
the control of the affected party including, but not limited to, natural
disaster, acts of God, actions or decrees of governmental bodies or failure of
communication lines (a "Force Majeure Event"), the party who has been so
affected shall promptly give written notice to the other party and shall use its
best efforts to resume performance. Upon receipt of such notice, all obligations
under this Agreement shall be immediately suspended for the duration of such
Force Majeure Event.
10.2 NOTICE.
All notices, demands, requests or other communications required or
permitted under this Agreement will be deemed given when (i) delivered
personally; (ii) five (5) days after having been sent by registered or certified
mail, return receipt requested, postage prepaid; or (iii) one (1) day after
deposit with a commercial overnight carrier, with written verification of
receipt.
10.3 WAIVER.
Waiver of any breach or failure to enforce any term of this Agreement shall
not be deemed a waiver of any breach or right to enforce which may thereafter
occur. No waiver shall be valid against any party hereto unless made in writing
and signed by the party against whom enforcement of such waiver is sought and
then only to the extent expressly specified therein.
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10.4 SEVERABILITY.
In the event any one or more of the provisions of this Agreement shall for
any reason be held to be invalid, illegal or unenforceable, the remaining
provisions of this Agreement shall be unimpaired and the parties will substitute
a new enforceable provision of like economic intent and effect.
10.5 GOVERNING LAW.
This Agreement, the rights and obligations of the parties hereto, and any
claims or disputes thereto, shall be governed by and construed in accordance
with the laws of the State of New York without reference to conflict of law
principles.
10.6 ASSIGNMENT.
Neither party shall have the right to assign this Agreement without the
prior written consent of the other party; provided, that either party shall have
the right to assign this Agreement to any person or entity that acquires or
succeeds to all or substantially all of such party's business or assets upon
written notice to the other party.
10.7 PUBLICITY.
Within a time frame mutually agreed upon by the parties, the parties may
issue a joint press release announcing the existence of this Agreement which
shall be mutually agreed upon by the parties. Neither party will use the other
party's name, domain name, logo, trademark or service xxxx in advertising or
publicity without obtaining the other party's prior written consent; provided,
however, that XXxxx.xxx shall have the nonexclusive right and license to use
Client's name and Client Web Site name, including the URL (Uniform Resource
Locator) thereto, as a Client reference, and as part of XXxxx.xxx's client
portfolio. XXxxx.xxx shall also have the right to display its name and logo, as
well as a link to the XXxxx.xxx site, on the Client Web Site(s), and to receive
credit as the developer of the Client Web Site(s), (collectively, the "Credit").
Such Credit shall appear on the "home page" of the Client Web Site(s) in a
position that provides reasonable and appropriate visibility to XXxxx.xxx in
light of industry standards and Client's requirements.
10.8 ADDITIONAL ACTIONS AND DOCUMENTS.
Each of the parties hereto hereby agrees to take or cause to be taken such
further actions, to execute, deliver and file or cause to be executed, delivered
and filed such further documents, and will obtain such consents, as may be
necessary or as may be reasonably requested in order to fully effectuate the
purposes, terms and conditions of this Agreement.
10.9 HEADINGS.
Section headings contained in this Agreement are inserted for convenience
or reference only, shall not be deemed to be a part of this Agreement for any
other purpose, and shall not in any way define or affect the meaning,
construction or scope of any of the provisions hereof.
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10.10 EXECUTION IN COUNTERPARTS: FACSIMILE SIGNATURES.
This Agreement may be executed in several counterparts, each of which shall
be deemed to be an original, and all of which, when taken together, shall
constitute one and the same instrument. Facsimile counterpart signatures to this
Agreement shall be acceptable and binding.
10.11 INDEPENDENT CONTRACTORS.
The relationship of the parties hereunder shall be that of independent
contractors. Nothing herein shall be construed to constitute a partnership
between or joint venture of the parties, nor shall either party be deemed the
agent of the other or have the right to bind the other in any way without the
prior written consent of the other.
10.12 JURISDICTION.
All disputes arising out of or relating to this Agreement shall be
submitted to the non-exclusive jurisdiction of the state and federal courts
encompassing Denver, Colorado, and each party irrevocably consents to such
personal jurisdiction and waives all objections thereto.
10.13 ENTIRE AGREEMENT.
This Agreement (and any Schedules hereto) constitutes the entire agreement
and understanding between XXxxx.xxx and the Client and supersedes any prior
agreement or understanding, oral or written, relating to the subject matter of
this Agreement. All modifications and amendments to this Agreement must be in
writing and signed by both parties.
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SCHEDULE 1
This Schedule describes Services to be provided by XXxxx.xxx to Client under
this Development Services Agreement dated March 31, 2000.
Description of Work:
The following statement of work covers the Xxxxx.xxx Phase I Prototype
Development and newco operating set-up fees as described below.
Deliverables: The following deliverables are included in Schedule "A".
Fee Schedule: XXxxx.xxx will xxxx client actual vendor software and integration
services fees. An estimate of these fees are included in Schedule "A."
XXxxx.xxx's hourly rate is $ * /hr for project services.
XXxxx.xxx and Client Contacts: XXxxx.xxx client contact: Xxxxxx Xxxxxxx -
303-488-2019 ext. 224. Client contact: Xxxx XxXxxx - 000-000-0000.
XXXXX.XXX CLIENT: XXXXX.XXX, INC.
By: /s/ XXXXX XXXXXXXXXXX By: /s/ XXXX XxXXXX
----------------------------------- ------------------------------------
Xxxxx Xxxxxxxxxxx Xxxx XxXxxx
----------------------------------- ------------------------------------
Printed Name Printed Name
Senior Vice President-
Chief Financial Officer Vice President
----------------------------------- ------------------------------------
Title Title
March 31, 2000 March 31, 2000
----------------------------------- ------------------------------------
Date Date
* This confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities
and Exchange Act of 1934, as amended.
