Exhibit 10.22
WEB SITE DEVELOPMENT AGREEMENT
This Web Site Development Agreement (the "Agreement"), dated as of this
2nd day of November 1999, is by and between Bear, Xxxxxxx & Co. Inc., a Delaware
corporation, having its principal offices at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
and other direct and indirect subsidiaries at the relevant time of its ultimate
corporate parent, on the one hand, (collectively, "Bear Xxxxxxx"), and Lead Dog
Design, Inc., having offices at 212 W. 35th Street, 8th Floor, New York, New
York, on the other hand ("Developer").
This agreement is intended to cover the development and design by Developer
for Bear Xxxxxxx of a new navigational system and engaging and intuitive
interface for various pages comprising the Bear Xxxxxxx' existing "Client
Toolkit" site (collectively, the "Site", and along with the design of or to be
available at such site, all software, artwork, graphics, animations, audio,
video or other works of authorship underlying or constituting such site and any
modifications, updates and other versions delivered hereunder, in any language,
format or medium, the "Content"). It is the intent of the parties that the
development and design of the Site will focus on presenting the same information
as does the existing Bear Xxxxxxx' "Client Toolkit" site.
As used in this Agreement, the term "Programmer Documentation" shall mean
at all times the latest versions (including, without limitation, drafts and
other work in progress) of all specifications, flow charts, outlines, file
definitions, programmer notes and commentary, and to the extent Developer
creates any source code or object code as part of Content implementation and
design, such object and source code, source files, header files, instructions on
how to compile, decompile and link the code, and other materials, content or
works of authorship constituting the Content; and the term "Deliverables" shall
mean Programmer Documentation along with the Content itself and any other
software on which Developer works for Bear Xxxxxxx.
Bear Xxxxxxx and Developer hereby agree as follows:
Section 1: SERVICES AND DELIVERABLES
1.1. Promptly after execution by Developer of this Agreement, Developer shall
commence the development of the Site, which development shall be carried
out by Developer in the following steps:
(I) Developer shall gather information regarding the existing Bear
Xxxxxxx' "Client Toolkit" site and Bear Xxxxxxx' purposes, goals and
requirements for the Site by interviewing Bear Xxxxxxx personnel
designated by the appropriate Bear Xxxxxxx manager or management
person.
(II) Based on the gathered information and its own input and analyses,
Developer shall develop and deliver to Bear Xxxxxxx a written project
plan and proposal for the development of the Site (the "Project
Plan"), which shall include the following:
(A) Detailed user requirements analyses for developing the Site.
(B) Detailed specifications for the Site (as finally agreed to by
Bear Xxxxxxx, the "Specifications"), including but not limited
to, (1) layout of the homepage and other pages of the Site
designated as "main pages" by Bear Xxxxxxx, (2) full outline of
the Site navigation flow, look and feel and (3) samples of the
graphics and presentation models to be included in the Site.
(C) A detailed timetable for developing and designing the Site and
the Content thereof, including, among other things, the schedule
containing the phases and milestones for delivery of each page
of the Site and its Content, full completion of the Site, and
the date of completion of Developer's performance under the
Project Plan ("Completion Date").
(D) The resources that will be made available by Developer for the
implementation of the Project Plan, including, name of the
Developer's employee that will serve as project leader for the
services to be performed in connection with this Project Plan
(include position, level of experience, and contact
information).
(III) During a period of ten business days following the delivery of the
Project Plan, Developer shall make its personnel available as is
reasonably necessary to answer Bear Xxxxxxx questions and to discuss
Bear Xxxxxxx proposed modifications and/or additions to the Project
Plan. If Bear Xxxxxxx desires to go ahead with the Project Plan and
Developer and Bear Xxxxxxx can agree upon a final version of the
Project Plan, as evidenced by the execution of the same by both
parties, Developer shall be entitled to payment as provided in
Section 1.4.(ii) of this Agreement.
(IV) Upon completion by Developer of each page of the Site pursuant to the
schedule contained in the final version of the Project Plan,
Developer shall deliver each page of the Site and the Content thereof
to Bear Xxxxxxx by placing each such page online at
xxxx://xxx.xxx.xxx/xxxxxxx/xxxxxxxxxxx and notifying Bear Xxxxxxx of
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such delivery. After such notification, Bear Xxxxxxx will have two
business days to review and test the Content with the cooperation and
assistance of Developer. In the event of rejection, Developer shall
correct any deficiencies and shall resubmit such Deliverables for
further reviewing by Bear Xxxxxxx.
(V) Upon completion by Developer of the final page of the Site pursuant
to the schedule contained in the final version of the Project Plan,
and, in any case, upon request by Bear Xxxxxxx, Developer shall
delivery to Bear Xxxxxxx the latest version of the Site Content,
Programmer Documentation and the Deliverables. Bear Xxxxxxx will have
[two weeks] to review and test the Content and the Programmer
Documentation with the cooperation and assistance of Developer
("Acceptance Test"). In the event of rejection, Developer shall
correct any deficiencies and shall resubmit such Deliverables for
further Acceptance Testing. If Bear Xxxxxxx does not reject the
Content and the Programmer Documentation within that time, Bear
Xxxxxxx will send Developer promptly, within its normal accounts
payable payment cycle, the payment required under Section 1.4. of
this Agreement.
1.2. Bear Xxxxxxx shall have the right to request in writing (including by e-
mail) addressed to Developer's project leader designated in the Project
Plan and two other Developer's employees, whose contact information is
listed below, changes to the agreed upon Project Plan. Developer shall
respond in writing (including by e-mail) as expeditiously as possible, but
in any case within two business days. In the event that Developer does not
respond within such time period or if Developer's response does not
indicate that the changes would result in additional cost to Bear Xxxxxxx
due to extension of the Project Plan, the requested changes shall be
considered effective and thereby incorporated into the existing Project
Plan. In the event of Developer's timely response that the requested
changes would result in an extension of the Project Plan and additional
cost to Bear Xxxxxxx, the parties will discuss in good faith the most
effective, efficient and expeditious means of implementing the requested
changes and Developer shall provide to Bear Xxxxxxx a written proposal
describing complete details thereof. If Bear Xxxxxxx agrees in writing
(including by e- mail) to Developer's proposal, the requested changes, as
supplemented by Developer's written proposal, shall be considered effective
and thereby incorporated into the existing Project Plan.
Contact information for Developer's employees mentioned above:
Name: Name:
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E-mail address: E-mail address:
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Phone number: Phone number:
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Address:
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1.3. Developer shall ensure that all of Developer's work under this Agreement
shall be performed in a competent, professional and xxxxxxx like manner,
consistent with level of services of a software developer skilled in the
art, and that all such work and the Specifications and the Content shall
conform with the Developer Guidelines annexed hereto.
1.4. As used in this Agreement the term "Project Plan Fees" shall mean a
guaranteed cost of development and design of the Site pursuant to the
Project Plan executed by the parties. The Project Plan Fees shall be equal
to $95,000 exclusive of applicable excise, sales or use taxes or duties.
The payment of the Project Plan Fees, shall be due as follows:
(i) 25% of the Project Plan Fees upon execution of the Agreement;
(ii) 25% of the Project Plan Fees upon execution of the Project Plan
pursuant to Section 1.1.(III) of this Agreement; and
(iii) 50% of the Project Plan Fees upon satisfaction of the applicable
Acceptance Test and acceptance by Bear Xxxxxxx of the applicable
Deliverables pursuant to Section 1.1.(V) of this Agreement.
1.5. To the extent that any future work relating to the Content (not
contemplated at the time of this Agreement or at the time the Project Plan
is approved) or other internet site or content ("Services") are to be
performed and/or Deliverables are to be developed on a time and materials
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basis, Developer shall adhere to the following guidelines:
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(a) No work may be commenced unless and until authorized in writing (may
be by e-mail) by the appropriate Bear Xxxxxxx project manager or
management person or his/her written designee.
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(b) No estimate may be exceeded without authorization in writing (may be
by e-mail) by the appropriate Bear Xxxxxxx project manager or
management person or his/her written designee.
(c) In absence of an estimate or cap for work agreed to in writing by Bear
Xxxxxxx or contained in an authorization by Bear Xxxxxxx to commence
work as provided in paragraph (a) above, $10,000 or such other amount
as may be set forth in the Project Plan shall be deemed to be the cap
beyond which Bear Xxxxxxx shall not be responsible without further
authorization in writing (may be by e-mail) by the appropriate Bear
Xxxxxxx project manager or management person or his/her written
designee.
(d) Developer shall deliver to the appropriate Bear Xxxxxxx project
manager or his/her written designee a weekly, clear and comprehensive
accounting (for the period ending not more than one day prior to the
date such accounting is received by Bear Xxxxxxx) of all Services
and/or Deliverables performed and/or developed during that week, with
a project by project and programmer by programmer breakdown of the
work performed and all amounts accrued and incurred.
Section 2: PROPRIETARY RIGHTS IN DELIVERABLES, ETC.
2.1. Developer agrees that (i) any and all Deliverables, including, without
limitation, all artwork, files, drawings, video, audio, animations,
graphics, programmer documentation and object and source code (in all
languages, formats and mediums), (ii) any and all original other works of
authorship, including, but not limited to all, user documentation, papers,
documents, drawings, databases and other compilations and software
(including, without limitation, all programs, object code, source code,
outlines, routines, subroutines, revisions, supplements, modules, and
upgrades, in each case, in any language, format or medium) which may be
created, compiled or produced by Developer or any of its subcontractors,
consultants or employees in the course of performing Services or producing
Deliverables for Bear Xxxxxxx (along with the items described in (i) above,
collectively, "Works of Authorship"), and (iii) any and all copyrights and
other proprietary rights and all foreign and domestic, registered and
unregistered, copyrights, applications for registrations therefor and other
proprietary rights related to any Works of Authorship (collectively,
"Copyrights"), shall be deemed to be works made for hire for and the
exclusive property of Bear Xxxxxxx. Except to the extent expressly and
specifically agreed in the Project Plan, to the extent that Developer has
or obtains any right, title or interest in or to any Work of Authorship,
Copyright or Other Technical Information and Inventions (as defined in
Section 2.2 below), Developer hereby assigns and agrees to assign to Bear
Xxxxxxx all of such right, title and interest therein and thereto, and to
the extent that any employee, agent or sub- contractor of Developer has or
obtains any right, title or interest in or to any Work of Authorship,
Copyright or Other Technical Information and Inventions, Developer shall
cause such employee, agent or sub-contractor to assign to Bear Xxxxxxx all
of such right, title and interest therein and thereto.
2.2. To the extent that any Deliverables or Services embody, contain or disclose
any ideas, concepts, know-how, inventions, formulas, techniques, processes,
ideas, algorithms, discoveries, designs, developments, improvements,
techniques or expertise (collectively, "Technical Information and
Inventions") that were known by Developer prior to Developer's work for
Bear Xxxxxxx or is developed by Developer during the course of Developer's
work for Bear Xxxxxxx relating generally to software development and
computer networks (but not the works of authorship expressing the same or
copyrights therein) of Developer ("Developer Technical Information and
Inventions"), Developer shall retain ownership such Technical Information
and Inventions, provided that Bear Xxxxxxx shall have (a) the full,
unrestricted and non- exclusive right to use, disclose, prepare works of
authorship based upon any Developer Technical Information and Inventions
embodied by, contained in or disclosed by the Deliverables or Services and
to copy, display and distribute any such works of authorship, and (b)
ownership of any other Technical Information and Inventions embodied by,
contained in or disclosed by the Deliverables or Services ("Other Technical
Information and Inventions").
2.3. Nothing herein shall prevent Developer from providing services
substantially similar to those contemplated herein, whether for a
competitor of Bear Xxxxxxx or otherwise, and the parties expressly agree
that in providing such services, or in developing its general, commercially
available software products, Developer may directly or indirectly utilize
residual know-how in its area of expertise resulting from the performance
of the services contemplated herein so long as such know-how is not
specific to Bear Xxxxxxx and is not Other Technical Information and
Inventions
2.4 To the extent that Developer or any author of any of the Deliverables have
any moral rights in or to any of the Deliverables, Developer hereby waives
any such rights and shall ensure that any such author waives any such
rights.
2.5. Developer shall be responsible for obtaining for Bear Xxxxxxx (i) any
required consents to use the likeness of any person reflected in the
Content who is not a Bear Xxxxxxx employee or officer, and (ii) agreements
approved by Bear Xxxxxxx with any third party site with which the Site
would deep-link or frame. The cost of obtaining the foregoing, if
applicable, shall not be included within the fees agreed to be payable to
Developer under this Agreement.
2.6. Upon the request of Bear Xxxxxxx, Developer shall at Bear Xxxxxxx'
reasonable out-of-pocket cost and expense do all acts and
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things, including, but not limited to, making and executing documents,
applications, deeds, license agreements, assignments, transfers,
conveyances, powers of attorney and instruments, using its best efforts to
obtain the cooperation of and bringing claims and actions against its
employees, ex-employees, agents, ex- agents and independent contractors and
giving information and testimony, in each case, requested at any time and
from time to time by Bear Xxxxxxx, in its good faith discretion, to vest,
secure, defend, protect and/or evidence the right, title and ownership of
Bear Xxxxxxx in and to any and all Works of Authorship, Copyrights and
Other Technical Information and Inventions and the waiver of any moral
rights in or to any Deliverable. Developer hereby appoints Bear Xxxxxxx and
its successors and assigns as Developer's attorney- in-fact, with full
power of substitution, in the name and stead of Developer or Bear Xxxxxxx,
for the benefit of Bear Xxxxxxx and its successors and assigns, to from
time to time do any and all such acts and things which Developer is
obligated to do under this paragraph. Developer declares that the
appointment made and the powers granted hereby are coupled with an interest
and are irrevocable.
Section 3: PERSONNEL
3.1 Developer is an independent contractor. Neither Developer nor Developer's
or any of Developer agent's or subcontractor's employees are or shall be
deemed for any purpose to be employees of Bear Xxxxxxx. Bear Xxxxxxx shall
not be responsible for, and Developer shall indemnify and hold Bear Xxxxxxx
harmless against, any cost, expense, liability, claim, damages, action, or
proceeding relating to any payroll-related taxes for any person who
performs any Services, produces any Deliverables, or provides maintenance,
support or training to be performed, produced or provided by Developer
hereunder or any claim arising out of or relating to the employment or
application for employment of any such person.
3.2 Except as may be otherwise agreed in writing by Bear Xxxxxxx, all personnel
assigned to supply the Deliverables, perform the Services or provide
maintenance, support or training shall be full-time employees of Developer,
shall be fully qualified to perform the tasks assigned to them.
Section 4: WARRANTIES
Developer represents, warrants and covenants to Bear Xxxxxxx as the date hereof
and of Acceptance as follows:
4.1. To the best of its knowledge and belief, Developer owns or otherwise has
the valid right by contract or otherwise to deliver and assign to Bear
Xxxxxxx the Deliverables, the Programmer Documentation, all other Works of
Authorship and the Copyrights without violating any applicable law, rule or
regulation or the proprietary rights of any third party, including without
limitation, patents, copyrights, trade secrets, or any license or
sublicense, covenant or contract with any third party.
4.2. To the best of its knowledge, Bear Xxxxxxx may use the Deliverables, the
Programmer Documentation, all other Works of Authorship and the Copyrights
and otherwise fully exploit the rights thereto set forth herein without
infringement of any such proprietary rights of third parties, and there is
currently no actual or threatened suit by any such third party based upon
an alleged violation by Developer of any such proprietary rights.
THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE ONLY WARRANTIES MADE
BY DEVELOPER. DEVELOPER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS.
Section 5: LIMITATIONS OF LIABILITY
5.1. EXCEPT AS STATED HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING
FROM EITHER PARTY'S PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THE TERMS
OF THIS AGREEMENT OR ANY OF THE ATTACHMENTS OR EXHIBITS HERETO.
5.2. Notwithstanding anything set forth in this Agreement, no limitation of
liability or exculpation of either party hereto shall apply to: (a) any
liability arising out of or in connection with acts or omissions that
constitute bad faith, willful misconduct, gross negligence, or intentional
breach of this Agreement; or (b) any liability, loss or claim arising out
of a breach by such party of Section 2, 3, 4 or 6 hereof.
Section 6: NON-DISCLOSURE
6.1. Developer acknowledges that in the course of performing its obligations
hereunder, Developer and its agents, representatives, employees and sub-
contractors may have access to information relating to Bear Xxxxxxx, its
business, customers, correspondents, finances, activities, securities or
future positions, software, systems, strategies or plans that is
non-public, proprietary or
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confidential in nature (all the foregoing, along with the Deliverables, the
Specifications and the Other Technical Information and Inventions,
collectively, "Bear Xxxxxxx Information"). Developer shall and shall cause
its subcontractors and affiliates and Developer's and its subcontractors'
and affiliates' agents, representatives, and employees (collectively,
"Representatives") to (i) keep all Bear Xxxxxxx Information confidential;
(ii) not disclose any Bear Xxxxxxx Information or any part thereof, in any
manner whatsoever, without Bear Xxxxxxx' prior written consent, and (iii)
not use any Bear Xxxxxxx Information or any part thereof, other than to
enable Developer to perform its obligations under this Agreement. Moreover,
Developer shall and shall cause its Representatives to reveal Bear Xxxxxxx
Information only to its agents, representatives and employees who need to
know such Information in connection with this Agreement, who are informed
by Developer of the confidential nature of such Bear Xxxxxxx Information
and who shall agree (in writing) to act in accordance with the terms and
conditions of this provision. All media on which any Bear Xxxxxxx
Information may be recorded or located, including, without limitation,
documents, papers, outlines, samples, photocopies, photographs, films,
drawings, descriptions, reproductions, cards, tapes, discs and other
storage facilities (collectively, "Bear Xxxxxxx Documentation") made by
Developer or any of its Representatives in the course of performing
Services or producing Deliverables for Bear Xxxxxxx, or that come into the
possession of Developer or any of its employees, agents representatives, or
sub-contractors in the course of performing Services or producing
Deliverables for Bear Xxxxxxx, are the property of Bear Xxxxxxx and shall
be returned to Bear Xxxxxxx by Developer upon the earlier of request by
Bear Xxxxxxx or termination of Developer's engagement by Bear Xxxxxxx.
Developer shall not, and shall cause any of its Representatives who obtain
or have obtained possession of or develop or have developed any Bear
Xxxxxxx Documentation not to, deliver, copy, or in any way allow any Bear
Xxxxxxx Documentation to be delivered to or used, examined or copied by any
third party without the written direction or consent of Bear Xxxxxxx.
Developer shall, and shall cause its Representatives to, place an
appropriate emblem or other annotation on any and all Bear Xxxxxxx
Documentation evidencing Bear Xxxxxxx'x ownership of such Bear Xxxxxxx
Documentation. Developer acknowledges that the use or disclosure of any
Bear Xxxxxxx Information or Bear Xxxxxxx Documentation in a manner
inconsistent with this Agreement may cause Bear Xxxxxxx irreparable damage,
and that Bear Xxxxxxx shall have the right to seek injunctive relief to
prevent such unauthorized use or disclosure, and to such damages as are
occasioned by such unauthorized use or disclosure.
6.2. Notwithstanding anything set forth in this Agreement, the confidentiality
provisions of this Agreement, including, but not limited to the above shall
not apply to: (a) information which (A) is already in the possession of the
party subject to the confidentiality obligations, (B) is or become
generally available to the public other than as a result of an improper
disclosure by the party subject to the confidentiality obligations or its
agents, representatives or employees, (C) is independently developed by the
party subject to the confidentiality obligations, or (D) become available
to the party subject to the confidentiality obligations on a
non-confidential basis from a source which, to the best of such party's
knowledge, is not prohibited from disclosing such information to the party
subject to the confidentiality obligations by a legal, contractual or
fiduciary obligation to the party subject to the confidentiality
obligations, or (b) disclosures required by applicable law, rule,
regulation or order or to legal counsel or auditors of the party who are
subject to an obligation of confidentiality.
Section 7: MISCELLANEOUS
7.1. If any provision of this Agreement is declared or found to be invalid,
illegal, unenforceable or void, then both parties shall be relieved of all
obligations arising under such provision, but only to the extent that such
provision is invalid, illegal, unenforceable or void, it being the intent
and agreement of the parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it valid, legal
and enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is valid, legal and
enforceable and achieves the same objective. Each party agrees that it will
perform its obligations hereunder in accordance with all applicable laws,
rules and regulations now or hereafter in effect.
7.2. Developer shall submit to Bear Xxxxxxx a fully and accurately completed and
signed Internal Revenue Service Form W-9 (Request for Taxpayer
Identification Number and Certification) prior to any payment under this
Agreement being due to Developer. Developer further understands and agrees
that, notwithstanding anything set forth in this Agreement, no payment to
Developer shall be made unless and until the requirement of this Section
7.2 is satisfied.
7.3. Headings are for reference purposes only.
7.4. Any notices required or permitted to be sent hereunder shall be served
personally or by registered or certified mail, return receipt requested,
reputable overnight delivery services such as Federal Express, Airborne
Express or DHL, or by facsimile with confirmation of receipt; to the
addresses listed above.
7.5. This Agreement shall be interpreted and construed in accordance with the
Copyright laws of the United States and the internal law of State of New
York, without regard to the conflicts of law principles thereof, and any
action brought in relation to this Agreement shall be brought in a Federal
or state court in the City of New York and Bear Xxxxxxx and Developer
hereby
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irrevocably consent to the jurisdiction of such Courts, and both parties
hereby waiving any claim or defense that such forum is not convenient or
proper. Each party hereby consents to service of process by any means
authorized by New York law (other than by publication). Each party waives
any right to trial by jury with respect to any dispute, suit, action or
proceeding arising our of or relating to this Agreement or otherwise
relating to the relationship of the parties, whether in contract, tort or
otherwise.
7.6. This Agreement may not be modified or altered except by a written
instrument executed by both parties. The failure of either party to
exercise in any respect any right provided for herein shall not be deemed a
waiver of any rights. This Agreement, together with each Project Plan
hereunder, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes and merges all prior
proposals, understandings and all other agreements, oral and written
between the parties relating to such subject matter. The rights and
remedies of Bear Xxxxxxx under this Agreement and any Project Plan are
cumulative.
7.7. Neither party may assign this Agreement or any Project Plan or delegate any
obligations hereunder or thereunder, except that Developer may sub-
contract some or all of its performance under the Agreement only with the
written consent of Bear Xxxxxxx.
7.8. Developer shall not use Bear Xxxxxxx'x or any of its affiliates' name or
trademarks or service marks without Bear Xxxxxxx'x written consent
(including by e-mail by an authorized Bear Xxxxxxx management person) or
use in the Site.
7.9. Notwithstanding anything set forth in this Agreement, the terms and
provisions of Sections 2 and 4 through 7 shall survive the expiration or
termination of the Agreement, regardless of the cause.
IN WITNESS WHEREOF, the parties, by their duly authorized representatives,
hereto have executed this Agreement as of the date noted above.
BEAR, XXXXXXX & CO. INC. LEAD DOG DESIGN INC.
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By: /s/ By: /s/
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Signature Signature
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Print or Type Name and Title Print or Type Name and Title
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DEVELOPER GUIDELINES:
9/99
Development of Specifications
To the extent that the Services and/or Deliverables include the development of
Specifications or consultation regarding the development of Specifications,
Developer shall adhere to the following guidelines:
(a) Developer shall elicit from Bear Xxxxxxx the (i) business rules, (ii)
process assumptions and (iii) user and administrative functions desired by
Bear Xxxxxxx to be implemented in the Content to be developed.
(b) Developer shall ensure that, when completed, such Specifications shall
contain a clear and comprehensive description of the Content to be
developed and a clear and comprehensive description of the following:
(i) the functions desired by Bear Xxxxxxx to be accomplished by the
Content;
(ii) the business rules, process assumptions and business and marketing
goals desired by Bear Xxxxxxx or required by the desired
functionality to be implemented by the Content;
(iii) the computer language and format (e.g. HTML or DHTML) in which each
portion of the Content will be written;
(iv) the software tools to be used to write the Content;
(v) the recommended hardware and software environment in which the
Content will reside; and
(vi) any Developer or third party works of authorship to be incorporated
into the Content.
Content Development
Developer shall adhere to the following guidelines:
(a) The Content shall fully implement the applicable Specifications.
(b) The Content shall operate without unnecessary delay or use of system
resources and without more than usual and customary glitches, bugs,
malfunctions or crashes.
(c) To the extent that Developer creates source code as part of Content
implementation and design, any such source code shall be fully annotated,
with clear and comprehensive annotations of the structure, purpose, all
functions, and how they are implemented so that another programmer who is
skilled in the art could without undue difficulty understand the structure,
purpose, all functions and how they are implemented and maintained and/or
change the applicable software.
(d) The Content shall be designed and implemented using state of the art web
page creation techniques and practices.
(e) Before linking with or framing any other party's site or content, Developer
shall obtain the written consent of (i) Bear Xxxxxxx and (ii) in the case
of framing, the owner of such site or content.
(f) Except as otherwise agreed in writing by Bear Xxxxxxx, any links to framing
of another party's site or content will be carried out in a manner
calculated to call to the attention to the visitor that Bear Xxxxxxx is not
responsible for the other party site or content.
(g) Developer shall use all reasonable efforts to ensure that any Content or
customization of third party Content developed by Developer and provided to
Bear Xxxxxxx hereunder shall not contain computer viruses or other
contaminants or any codes or instructions that may be used to access,
modify, delete or damage such software or any other software used as part
of or with the Deliverables, without Bear Xxxxxxx' authorization, any data
files created by other computer programs used in connection with the
Deliverables or any other software used as part of or with the
Deliverables.
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(h) Any software or customization of third party software developed by
Developer and provided to Bear Xxxxxxx hereunder (i) is designed to be used
prior to, during, and after the calendar year 2000 A.D.; (ii) will operate
during each such time period without any error or interruption relating to,
or the product of, data or input which includes an indication of or
reference to a date which represents or references different centuries or
more than one century; (iii) will, under normal use and service, record,
store, process and present calendar dates falling on or after September 9,
1999, January 1, 2000 and February 29, 2000, in the same manner, and with
the same functionality, data integrity and performance, as the Content
records, stores, processes and presents calendar dates on or before
September 8, 1999, December 1, 1999 and February 29, 1996; and (iv)
recognizes the year 2000 as a leap year. Notwithstanding the foregoing, in
respect to the third party software provided by Developer to Bear Xxxxxxx,
Developer's sole obligation under this paragraph shall be to use reasonable
due diligence in inquiring into and obtaining reasonably appropriate year
2000 representations from such third parties.
(i) At the request of Bear Xxxxxxx, Developer shall promptly provide Bear
Xxxxxxx with evidence sufficient to demonstrate adequate testing to meet
the foregoing requirements. Developer shall cooperate with any year 2000
problem identification and/or testing procedure carried out by Bear Xxxxxxx
and/or securities industry groups, without charge to Bear Xxxxxxx.
Notwithstanding anything else in this or any other agreement, Developer
consents to Bear Xxxxxxx releasing information regarding any such procedure
or the results thereof.
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