Software Application Development
Services Agreement
Between
Open-i Media, Inc.
and
SIGA PHARMACEUTICALS, INC.
This AGREEMENT (the "Agreement") is hereby entered as of this 11th day of
October, 1999 (the "Effective Date"), by and between Open-i Media, Inc., a
corporation with offices at 00 Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Open-i") and, SIGA PHARMACEUTICALS, INC., a corporation with offices at 000
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, ("CLIENT"), under the
following terms and conditions:
WHEREAS. Open-i is in the business of providing Internet World Wide Web
development, programming and related services, including technical and creative
services;
WHEREAS, CLIENT wishes to retain the services of Open-i to perform certain
Internet world wide web development, programming and related services,
including, technical and creative services as described herein; and
WHEREAS, Open-i wishes to provide CLIENT with such services;
NOW, THEREFORE, in consideration of the conditions and covenants set forth
hereinafter, it is agreed as follows:
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1. DEFINITIONS
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1.1. "Deliverable" shall mean the Internet World Wide Web site ("Web Site") and
Dynamic Community Application ("Client Application(s)") for CLIENT, which is the
Content, Software and other materials to be produced by Open-i pursuant to the
specifications.
1.2. "Confidential Information" shall mean any information of either party
whether or not developed by the other, marked in writing as "Confidential,"
including but not limited to preexisting or new information which relates to all
ideas, designs, methods, discoveries, improvements, products, Software, Content,
or other results of consulting or development services, trade secrets, product
data and specifications, proprietary rights, business affairs, product
developments, customer information or employee information, however,
Confidential Information shall not include any of these items that are already
known to that party, in the public domain or has not been previously received
from a third party not bound by a confidentiality agreement.
1.3. "Content" shall mean all text, graphics, photographs, animation, images,
digital and/or audio clips, including that which is posted on or found in a
bulletin board, banner advertisement, hypertext link, chat room, or discussion
forum.
1.4. "Software" shall mean everything except Content. By way of examply only,
Software includes, but is not limited to, all computer code (both source and
object) including, but not limited to, all interfaces navigational devices,
menus, menu structures or arrangements, icons, help, operational instructions,
scripts, information, HTML, JavaScript, Java, Visual Basic, C++, SQL or any
other programming or procedural language, commands syntax, graphical designs,
audio and/or digital slide Components and the literal and non-literal
expressions of ideas that operate, cause, create, direct, manipulate, access or
otherwise affect the Content whether created or licensed from third Parties by
Open-i including is without limitation, and copyrights, trade secrets and other
intellectual or industrial property rights therein Open-i to develop an
operational corporate web site and client application as per the Specifications
and install on a web server selected by the CLIENT the Deliverables.
1.6. "Phase(s)" when used in this Agreement, refers to a portion or portion(s)
of the entire Project, which includes but is not limited to the Web Sites and
Client Applications conceptual design, programming, and testing.
1.7. "Specifications," when used in this Agreement, shall refer to the final
document(s) created by Open-i and submitted to CLIENT for CLIENT's approval,
that shall:
1.7.1. provide detailed requirements for the Deliverable;
1.7.2. sets forth the Phases for delivery of the Deliverable;
1.7.3. sets forth the fees and fee payment schedule for the Project, and
1.7.4. when approved by CLIENT, it shall be incorporated into this
Agreement.
1.8. "Web Site and Client Application Proposal," when used in this Agreement,
shall mean the document created by Open-i and submitted to CLIENT for the
purpose of outlining the Project, which includes but is not limited to estimated
Phases, fees, and related services that upon the parties execution of this
Agreement will be superseded by the Specifications.
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2. STATEMENT OF SERVICES
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2.1. CLIENT hereby retains Open-i as an Internet web development and services
provider, effective as of the Effective Date, and Open-i hereby accepts such
retention by CLIENT.
2.2. Open-i will complete the Project, and deliver the Deliverable in Phases.
Each Phase will require Acceptance by the CLIENT prior to Open-i's commencement
of the succeeding Phase.
2.3. Approval of the Specifications shall proceed as follows.
2.3.1. Open-i will consult with CLIENT for the purpose of creating the
Specifications.
2.3.2. Open-i shall submit for CLIENT's review the proposed
Specifications.
2.3.3 CLIENT within ten (10) business days receipt of the Specifications
will either approve or reject the Specifications, in writing and such
approval shall not be unreasonably withheld.
2.3.4. If CLIENT does not reject the Specifications in writing within ten
(10) business days receipt then approval is automatic on the sixth
business day, and Open-i shall invoice CLIENT for the amount specified for
the first Phase.
2.3.5. If CLIENT rejects the Specifications, Open-i shall have ten (10)
business days within which to resubmit the Specifications.
2.3.6. If CLIENT rejects the resubmitted Specifications, Open-i and CLIENT
will negotiate in good faith one of the following courses of action: (i)
Re-negotiate the terms of the Specifications; or (ii) Terminate this
Agreement.
2.3.7. If at anytime during this Agreement Specifications, such
modifications will be in writing signed by the parties, and attached to
this Agreement as an amendment to the Specifications.
2.4. Upon CLIENT's approval of the Specifications, Open-i will invoice CLIENT in
the amount specified for the Phase, and will thereafter invoice CLIENT in
accordance with the payment schedule. All invoices are payable to Open-i within
thirty (30) days following receipt of invoice by CLIENT.
2.5. "Acceptance" for each Phase stated in the Specifications and for the
completed Deliverable shall be as follows:
2.5.1. Open-i will only commence services for a subsequent Phase when
CLIENT has Accepted and paid for the preceding Phase.
2.5.2. Upon Open-i's completion of a particular Phase, CLIENT shall
evaluate that portion of the Project and submit Open-i with written
approval.
2.5.3. If CLIENT does not reject the particular Phase in writing within
ten (10) business days receipt then Acceptance will be automatic on the
sixth business day, and Open-i shall proceed with the next Phase.
2.5.4. If CLIENT rejects the Phase, Open-i shall have ten (10) business
days within which to correct. If CLIENT thereafter withholds approval,
Open-i and CLIENT will negotiate in good faith one of the following
courses of action: (i) Re-negotiate the terms of the Specifications; or
(ii) Terminate this Agreement.
2.6. Acceptance of Deliverable: CLIENT shall be deemed so have Accepted the
Deliverable for all purposes under this Agreement upon the earlier of any one of
the following events: 1) use of the Deliverable on the Internet, 2) licensing or
distribution of the Deliverable to any third party; or 3) no written notice of
rejection from CLIENT within fifteen (15) days from the date of CLIENT's receipt
of the Deliverable.
2.7. Any delays attributable to CLIENT'S failure to respond with Acceptance will
extend any and all deadlines for an amount of time equal to CLIENT's delay.
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3. OWNERSHIP OF RIGHTS
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3.1. Provided that Open-i has received all compensation provided for under this
Agreement:
3.1.1 Open-i hereby irrevocably assigns, conveys and otherwise transfers
to CLIENT all rights, title, and interests worldwide in and to the
Deliverable and all proprietary rights therein, including, without
limitation, all copy rights, trademarks design patents, trade secret
rights, moral rights, and all contract and licensing rights, and all
claims and causes of action of any kind with respect to and of the
foregoing, whether now known or hereafter to become known. In the event
that it has rights in and to the Deliverable that cannot be assigned to
CLIENT, Open-i hereby unconditionally and irrevocably waives the
enforcement of all such rights, and all claims and causes of action of any
kind with respect to any of the foregoing against CLIENT, its distributors
and customers, whether now known or hereafter to become known and agrees,
at the request and expense of CLIENT to consent to and
join in any action to enforce such rights and to procure a waiver of such
rights from the holders of such rights.
3.1.2. Open-i shall retain no rights to use the Deliverable and agrees not
to challenge the validity of the ownership by CLIENT of the Deliverable.
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4. CLIENT'S RESPONSIBILITIES FOR CONTENT
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4.1. CLIENT shall furnish Content and other related information requested by
Open-i that is necessary for Open-i to fulfill its responsibilities under this
Agreement. CLIENT shall provide adequate access to Open-i personnel necessary
for Open-i to fulfill its responsibilities under this Agreement.
4.2. CLIENT assumes sole responsibility for (a) acquiring any authorization(s)
necessary for hypertext links to third party web sites, (b) the accuracy of
materials, including, without limitation, Content, descriptive claims,
warranties, guarantees, nature of business, and address where business is
conducted, and (c) ensuring that the CLIENT Content does not infringe or violate
any right of any third party.
4.3. CLIENT shall not place or cause to be placed Content that contains any
communication, or materials which are obscene, threatening, malicious, which
infringe on or violate any applicable laws or regulation or any proprietary,
contract, privacy or other third party right, or which otherwise exposes Open-i
to civil or criminal liability. Any such materials which do not satisfy the
foregoing requirements shall be deemed to be a material breach of this
Agreement.
4.4. If notified of allegedly infringing, defamatory, damaging, obscene,
illegal, or offensive Content, Open-i's sole obligation will be to inform CLIENT
of such allegations. Open-i shall not be liable for any damages incurred by
CLIENT because of any such claim or action. CLIENT shall hold Open-i harmless
from any damages resulting from CLIENT's acts or omissions with regard thereto.
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5. EXPENSES
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5.1. Open-i will be reimbursed by CLIENT for all reasonable out-of-pocket
expenditures that are incurred solely for the purpose of providing the Included
Services under this Agreement. For all related expenses aggregating in excess of
$1,000.00, Open-i will obtain CLIENT's prior written approval. Open-i will
maintain all receipts for all expenses.
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6. DOMAIN NAME REGISTRATION
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6.1. As part of CLIENT's responsibilities, CLIENT shall provide Open-i with a
registered domain name, which it will own. In the event CLIENT does not provide
Open-i with a registered domain name, Open-i shall register, at CLIENT's written
request, a domain name(s) selected by CLIENT, which CLIENT will own, provided
that such domain name is available for registration and does not violate
InterNIC's or any other registration services' policies, or any law or
regulation. CLIENT agrees to promptly reimburse Open-i for all fees incurred by
Open-i in connection with the registration and maintenance of such domain name.
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7. TERM OF AGREEMENT
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7.1. The term of this Agreement ("Term") shall begin upon execution of this
Agreement, and unless terminated earlier by mutual agreement of the parties, the
Term shall end upon the earlier of:
7.1.1. Acceptance of all Phases contemplated for the Project; or
7.1.2. the termination of this Agreement in accordance with its terms.
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8. TERMINATION
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8.1. Either party may terminate this Agreement if a bankruptcy proceeding is
instituted against the other party which is acquiesced in and not dismissed
within ninety (90) days, or results in an adjudication of bankruptcy, or the
other party materially breaches any of its representations, warranties or
obligations under this Agreement, and such breach is not cured within thirty
(30) days of the breaching party's receipt of notice specifying the breach.
8.2. In the event that CLIENT fails to pay its fees within thirty (30) days from
the date of issue, or applicable due date, such non-payment shall be deemed a
material breach of this Agreement, and will be sufficient cause for termination
of this Agreement by Open-i if CLIENT cannot cure such breach within five (5)
business days. CLIENT shall be liable for any costs associated with such
collection, including, but not limited to, legal costs, attorneys' fees, court
costs, and collection agency fees.
8.3. Upon termination or expiration of this Agreement, for any reason:
8.3.1. CLIENT shall pay all outstanding fees up to the date of the
effective date of termination or effective date of expiration of this
Agreement. Upon payment in full of all outstanding invoices, client shall
own all deliverables.
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9. CONFIDENTIAL INFORMATION
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9.1. Each party will (i) keep in confidence the other party's Confidential
Information made available to it, (ii) not use the other party's Confidential
Information other than for the aforesaid purposes provided herein and (iii) not
disclose to any third party any Confidential Information, except as required by
order of a court or other government entity.
9.2 Each party shall notify its respective employees, representatives, and
agents of their confidentiality obligations with respect to the Confidential
Information and shall require its employees to comply with these obligations.
The confidentiality obligations of each party and its respective employees,
representatives, and agents shall survive the expiration or termination of this
Agreement.
9.3. The provisions of this Section shall survive termination of this Agreement.
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10. REPRESENTATIONS, WARRANTIES AND LIMITATIONS
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10.1. The following representations and warranties are provided solely for the
benefit of the parties to this Agreement, and no other person or entity.
10.2. Open-i warrants, represents and covenants that:
10.2.1. The Software hereunder shall perform in accordance with the
Specifications, and all services provided hereunder shall be provided in a
professional manner.
10.2.2. neither the Software nor the services hereunder infringe any
copyright or misappropriate any trade secrets of a third party.
10.3. CLIENT warrants, represents and covenants that
10.3.1. it has the right to disclose the Content it provides to Open-i,
that authorization is not required from any third party in order for
Open-i to provide the services requested by CLIENT under this Agreement,
and that the services Open-i will provide under this Agreement does not
violate the rights of any third party.
10.4. Open-i DOES NOT WARRANT ANY SOFTWARE OR INCLUDED SERVICES AGAINST FAILURE
OF PERFORMANCE DUE TO FAILURE OF COMPUTER HARDWARE OR COMMUNICATIONS SYSTEM.
Open-i DOES NOT PROVIDE ANY GOODS OR SERVICES UNDER THIS AGREEMENT, EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT. Open-i HEREBY DISCLAIMS WITH RESPECT TO
ALL SERVICES AND OBLIGATIONS PROVIDED HEREUNDER, ALL IMPLIED WARRANTIES,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A
PARTICULAR PURPOSE.
10.5. The parties acknowledge that the following provisions have been negotiated
by them and reflect a fair allocation of risk:
10.5.1. Remedies. In addition to its right of termination and excluding
remedies for any breach of the representations and warranties contained
herein, CLIENT's sole and exclusive remedies for Open-i's default
hereunder shall be to obtain the repair, replacement or correction of the
defective services or Deliverable to the extent warranted under this
Agreement. If such remedy is not economically or technically feasible or
effective, then CLIENT may obtain an equitable partial or full credit or
refund of amounts paid with respect to the defective services or
deliverable, subject to the limitation set forth immediately below.
10.5.2. Limitation of Liability. IN NO EVENT SHALL Open-i BE LIABLE TO
CLIENT OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE
OR OTHERWISE, FOR (i) ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY CLIENT TO
Open-i FOR ANY SERVICES DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING
RISE TO THE ALLEGED CLAIM, OR (ii) ANY
DIRECT. INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT
LIMITED TO, LOST PROFIT OR BUSINESS INTERRUPTION EVEN IF NOTIFIED IN
ADVANCE OF SUCH POSSIBILITY) ARISING OUT OF OR RELATING TO THIS AGREEMENT.
10.5.3. CLIENT, at its own expense, shall defend, indemnify, and hold
harmless Open-i, its agents, affiliates, successors, and assigns with
respect to any damages, expenses (including but not limited to attorney's
fees), claim, or action brought against Open-i, its agents, affiliates,
successors, and assigns that arises out of or in connection with CLIENT's
representations, acts or omissions under this Agreement, including, but
not limited to: (1) the Content; (2) unauthorized use of the Software;
(3) any use of Internet facilities conducted or permitted by CLIENT; (4)
the conduct of any business, advertising, marketing or sales in connection
therewith; and, (5) any negligent or illegal act or omission of CLIENT or
any of its agents, contractors, servants, employees, or other users or
accesses. Open-i shall promptly notify CLIENT of any claim or action,
shall provide reasonable assistance in connection with the defense and/or
settlement thereof, and shall permit CLIENT to control the defense and/or
settlement thereof.
10.6. Open-i agrees to indemnify, hold harmless, and defend CLIENT from and
against any and all damages, costs, and expenses, including reasonable
attorneys' fees incurred in connection with a claim which, if true, would
constitute a breach of the foregoing warrantees in this Section (a "Claim");
provided Open-i is notified promptly in writing of such Claim and has sole
control over its defense or settlement, and CLIENT provides reasonable
assistance in the defense of such Claim. Following notice of a Claim, Open-i may
at its expense, without obligation to do so, procure for CLIENT the right to
continue to use the Software or, without obligation to do so, may replace or
modify the Software to make it non-infringing. If Open-i elects to replace or
modify the Software, such replacement shall substantially meet the
specifications of the Software that is accused of infringement.
10.7. Notwithstanding anything to the contrary herein, neither party shall
settle or compromise any claim subject to this Section without the other party's
prior written consent, not to be unreasonably withheld or delayed.
10.7.1. The provisions of this Section shall survive termination of this
Agreement.
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11. MISCELLANEOUS
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11.1. DEVELOPMENT CREDIT AND PUBLICITY. Neither party shall use any trademarks,
service marks, nor properties owned, controlled, licensed or otherwise
proprietary to either party, whether or not such materials are incorporated into
the CLIENT Web Site, without the other party's prior written consent.
11.2 INJUNCTIVE RELIEF. Both parties acknowledge that the disclosure of any
aspect of the Confidential Information of the other party shall immediately give
rise to continuing irreparable injury to the non-disclosing party inadequately
compensable in damages at law and without prejudice to any other remedy
available to the non-disclosing party, and shall entitle the non-disclosing
party to obtain injunctive relief.
11.3. INDEPENDENT CONTRACTOR Neither party shall have the power to bind the
other party, nor shall either party make any such representation. The parties'
relation to the other shall be that of an independent contractor solely
responsible for the manner and means by which the duties hereunder are carried
out. Neither party shall be construed for any purpose to be an employee subject
to the control and direction of the other party.
11.4. FORCE MAJEURE Except for CLIENT's payment obligations, if the performance
of any part of this Agreement by either party is prevented, hindered, delayed or
otherwise made impracticable by reason of any flood, riot, fire, judicial or
governmental action, labor disputes, act of God or any other causes beyond the
control of either party, that party shall be excused from such to the extent
that it is prevented, hindered or delayed by such causes.
11.5. NOTICE Any notice provided pursuant to this Agreement, if specified to be
in writing, shall be in writing and shall be deemed given (i) if by hand
delivery, upon receipt thereof, (ii) if by mail, five (5) days after deposit in
the United States mails, postage prepaid, certified mail, return receipt
requested, (iii) if by facsimile transmission, upon electronic confirmation
thereof, or (iv) if by next day delivery service, upon such delivery. All
notices shall be addressed as follows (or such other address as either party may
in the future specify in writing to the other):
To Xxxxx Xxxxx:
Open-i Media. Inc
Address first listed
To Xxxx Xxxxxx
SIGA PHARMACEUTICALS, INC
Address first listed
11.6. WAIVER. The waiver by either party of any breach or failure to enforce any
of the terms and conditions of this Agreement at any time shall not in any way
affect, limit or waive either party's rights thereafter to enforce and compel
strict compliance with every term and condition of this Agreement.
11.7. 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.
11.8. COUNTERPARTS. This Agreement may be executed in several counterparts, all
of which taken together shall constitute the entire agreement between the
Parties hereto.
11.9. HEADINGS AND RECITALS. The section headings used herein are for reference
and convenience only and shall not enter into the interpretation hereof. The
entire recitals portion (the Whereas statements) of this Agreement are
incorporated into this Agreement by reference.
11.10. ENTIRE AGREEMENT. This Agreement, including any and all Exhibits, or
invoices annexed hereto, sets forth the entire agreement between the parties on
this subject and supersedes all prior negotiations, understandings, and
agreements between the parties concerning the subject matter. No amendment or
modification hereof shall be binding unless in writing and duly executed by both
parties.
11.11. MEDIATION. Any dispute between the parties arising from this Agreement
must first be referred to non-binding mediation by a mediator from the American
Arbitration Association with knowledge of web development services, the costs of
whom shall be paid jointly by both parties. Each party shall cooperate in such
mediation, but may terminate mediation at any time after the expiration of
ninety (90) days from commencement thereof. Nothing in this paragraph shall
preclude either party from exercising any and all legal rights available to it
in a court of competent jurisdiction for injunctive relief. No offer, finding,
action, inaction, or recommendation made or taken in or as a result of mediation
shall be considered for any purpose an admission of a party, nor shall it be
offered or entered into evidence in any legal proceeding.
11.12. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAW PROVISIONS) OF
THE STATE OF NEW YORK AND SHALL BENEFIT AND BE BINDING UPON THE PARTIES HERETO
AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS LITIGATION.
11.13. Any controversy or claim arising out of or relating to this contract, or
the breach of thereof not resolved by Mediation, shall be resolved in litigation
in the appropriate State or Federal District Court venued in the State of New
York. Both parties consent to jurisdiction and venue in such courts in New York
IN WITNESS WHEREOF, for adequate consideration and intending to be legally
bound, the parties hereto have caused this Agreement to be executed by their
duly authorized representatives.
Open-i Media, Inc.
BY: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, President
SIGA PHARMACEUTICALS, INC.
BY: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, CEO