AGREEMENT
This Agreement dated this 14th day of November, 1997 is between
NetTrade OnLine, L.L.C. a Texas limited liability company, located at 000
Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 ("NetTrade"), and Houston InterWeb
Design, Inc. a Texas corporation, located at 0000 Xxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000 ("InterWeb").
RECITALS
1. NetTrade desires to have InterWeb design, develop, produce, and
install a computer program and related materials (the "Program") consisting of
an interactive web site on the Internet providing real time/on-line trading of
various commodities (the "Web Site"), incorporating functions commercially
available at this time, and including, at a minimum, all of the criteria
described on Exhibit "A" attached hereto. The Program shall be installed on the
designated hardware (the "Hardware") specified herein. The related materials of
the Program shall include, but shall not be limited to, all executable codes and
source codes, magnetic media, and printed documentation related to the Program,
the Hardware, and all updates thereof, including manuals covering the
installation, application, and use of the Program and all specifications for the
Program ("Related Materials").
HARDWARE
2. The Hardware referred to in this Agreement shall be described on
Exhibit "B" attached hereto.
DEVELOPMENT OF THE PROGRAM
3. InterWeb agrees to provide all system engineering services necessary
to design, develop, produce, install, and maintain the Program and the Hardware.
These services shall include, but are not limited to, special studies,
programming and application design and development, systems analysis and design,
conversion and implementation planning, and installation evaluation.
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MAINTENANCE SERVICES, WARRANTY AND DEFAULT
4. InterWeb also agrees to provide all services necessary to maintain the
Program and the Hardware in good working order such that the same are properly
operating and performing the functions and meeting all criteria described in
this Agreement ("Good Working Order"). After InterWeb certifies that the
Program is in Good Working Order, if there exists a defect in the Program or the
Hardware ("Defect"), InterWeb shall immediately respond to NetTrade regarding
the Defect and use its best efforts to restore the Program and Hardware into
Good Working Order. (The term "Defect" shall not include any disruption caused
by Acts of God, or the negligence of third parties not within the control or
direction of InterWeb or its principals.) If, due to the negligence or fault of
InterWeb, any Defect remains uncorrected or the Program and Hardware are not
restored into Good Working Order within 48 hours after notice of same, InterWeb
shall be in default under this Agreement. For each 24 hour period (or part
thereof) thereafter that such default is not cured, InterWeb shall pay to
NetTrade, as liquidated damages, the sum of One Thousand Dollars ($1,000).
INDEPENDENT CONTRACTOR STATUS
5. InterWeb shall perform its duties under this Agreement as an
independent contractor and not as an employee, partner or co-venturer of
NetTrade. Personnel employed by InterWeb who perform duties related to this
Agreement shall remain under the supervision, management, and control of
InterWeb, and shall not in any event be considered employees of NetTrade.
TERM OF AGREEMENT
6. This Agreement shall take effect on the date upon which it is executed
by the parties and shall continue until its termination pursuant to the terms
hereof.
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LUMP SUM COMPENSATION TO INTERWEB
7. NetTrade shall pay to InterWeb the lump sum of Eighty Thousand and
No/100 Dollars ($80,000) payable according to the following schedule:
First payment - $26,666.66 payable upon acceptance and
execution of this Agreement.
Second payment - $26,666.66 payable upon the completion of
co-location and configuration of the
Designated Hardware and delivery and
installation of the Pre-Beta version of the
Program ("Pre-Beta"), as more particularly
described on Exhibit "C" attached hereto.
InterWeb agrees that this event shall occur
no later than January 31, 1998.
Third payment - Balance of $26,666.68 payable upon
determination by NetTrade that the Program
and Designated Hardware are in good working
order, properly operating, and performing the
functions and meeting all criteria described
in this Agreement ("Final Release").
InterWeb agrees that this event shall occur
no later than March 5, 1998; provided that
such date shall be reasonably extended by
reason of delays caused by NetTrade.
CONFIDENTIAL INFORMATION
8. InterWeb agrees that all information communicated to it with respect
to the Program is confidential, whether or not such information was directly or
intentionally communicated, and includes all information, conclusions,
recommendations, reports, advice, or other work product generated by InterWeb
pursuant to this Agreement ("Confidential Information"). InterWeb shall use
its best efforts to prevent the disclosure of any Confidential Information to
any third party. InterWeb acknowledges that all information concerning the
Program and any future and proposed commercial efforts of NetTrade and its
principals constitute exceptionally valuable trade secrets of NetTrade.
Confidential Information includes, among other matters, the facts that the
Program is planned, under development, or in production, as well as any
descriptions of the features of the Program.
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USE AND DISCLOSURE
9. InterWeb shall not use any Confidential Information except when
specifically authorized in advance by NetTrade in writing.
COPIES OF CONFIDENTIAL INFORMATION
10. InterWeb agrees that copies of Confidential Information shall not be
made without the express written permission of NetTrade and that all such copies
shall be returned to NetTrade with the originals at the termination of this
Agreement.
RETURN OF MATERIALS
11. At NetTrade's request, InterWeb shall promptly return all Confidential
Information at the conclusion of the work on the project to which the materials
relate, or, if no work is performed, at the time InterWeb ceases to be involved
with that project.
PROPERTY RIGHTS IN THE PROGRAM
12. NetTrade and InterWeb agree that all original material regarding the
Program and all Related Materials originated and prepared for NetTrade by
InterWeb pursuant to this Agreement, shall belong exclusively to NetTrade and
shall constitute a trade secret owned exclusively by NetTrade. InterWeb
acknowledges and agrees that the sale or unauthorized use or disclosure of
information concerning the Program and Related Materials, as well as any
descriptions of the same, shall constitute a breach of this Agreement and
violation of the trade secret.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF INTERWEB
13. InterWeb represents, warrants and covenants to NetTrade that as of the
date hereof:
a. InterWeb is a corporation duly organized, validly existing and in
good standing under the laws of the state of Texas, with full
power and authority to execute, deliver and perform this
Ageement;
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b. InterWeb is in good standing and qualified to do business in
every state where the nature of its business (including, without
limitation, the performance of its obligation under this
Agreement) or where the lease or ownership of its property
requires it to be so qualified or where failure to so qualify may
materially affect its business or assets;
c. Interweb has taken all corporate action which is necessary,
required, or appropriate to authorize and enable it to enter into
and perform its obligations under this Agreement;
d. This Agreement is a valid and binding obligation of InterWeb in
accordance with its terms;
e. The execution, delivery and performance by InterWeb of its
obligations hereunder will not (i) conflict with, or result in
any breach or violation of or default (or give any right of
termination, cancellation or acceleration) under, the bylaws or
certificate of incorporation of InterWeb or any note, bond,
mortgage, indenture, lease, license, permit, agreement or other
instrument or obligation to which InterWeb or any of its
officers, directors, employees or assigns is a part or by which
InterWeb or any of its properties is or may be subject; or (ii)
violate any law, order, rule or regulation applicable to
InterWeb, the effect of either of which would be to deny NetTrade
the benefit to NetTrade hereunder or (iii) require the consent,
approval or other authorization of or by any court,
administrative agency or other governmental authority or any
other person or entity which it has not yet obtained;
f. InterWeb is the author of the Program, has the full and exclusive
right to sell the Program to NetTrade hereunder and the Program
does not infringe upon any valid
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patent or copyright, or constitute an appropriation of a trade
secret, except as relates to commercially available software as
described on Exhibit "C" attached hereto;
g. InterWeb has all right, title and interest in and to the Program,
including, without limitation, all copyrights and patents;
h. NetTrade's use and possession of the Program in accordance with
this Agreement will not violate the terms and conditions of any
license, confidentiality agreement, non-competition agreement,
employment agreement or any agreement or arrangement to which
InterWeb, its agents, affiliates, employees or officers may be
subject;
i. The Hardware purchased by NetTrade hereunder is all of the
hardware necessary for performance of the Program to operate in
Good Working Order and the Hardware is in good working condition;
j. There is no action, suit or proceeding pending or, to InterWeb's
knowledge, threatened against or affecting it before or by any
court, administrative agency or other governmental authority
which could impair the consummation by InterWeb of the
transactions contemplated by this Agreement;
k. InterWeb is not in default with respect to any agreement to which
it is a party or by which it is bound, which default could impair
the consummation of the transactions contemplated by this
Agreement; and
l. InterWeb has reviewed the financial projections regarding this
Agreement, a copy of such projections are attached hereto as
Exhibit "D", but acknowledges that such projections are made
without any warranty by NetTrade or any person as to their
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reasonableness or accuracy; and InterWeb warrants that it enters
into this Agreement without any reliance whatsoever on such
financial projections.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF NETTRADE
14. As a material inducement to InterWeb to enter into and
perform this Agreement, NetTrade represents, warrants and covenants to InterWeb
that as of the date hereof:
a. NetTrade is a limited liability company duly organized,
validly existing and in good standing under the laws of the
state of Texas, with full power and authority to execute,
deliver and perform this Agreement;
b. NetTrade has taken all corporate action that is necessary,
required or appropriate to authorize and enable it to enter
into and perform its obligations under this Agreement;
c. This Agreement is a valid and binding obligation of
NetTrade, enforceable against NetTrade in accordance with
its terms, except insofar as enforceability shall be limited
by applicable bankruptcy, insolvency or other similar laws;
and
d. Neither the execution of this Agreement by NetTrade, nor
performance by NetTrade of its obligations under this
Agreement, violates the terms and conditions of any
agreement to which NetTrade or its properties may be
subject.
INDEMNIFICATION
15. InterWeb will indemnify and save and hold NetTrade, its members,
directors, and affiliates harmless from and against any and all judgments,
losses, claims, damages, costs, liabilities, orders, obligations or the like
(including, without limitation, attorneys' fees and disbursements) incurred
by such party in connection with or as a result of (a) any breach by InterWeb
of any of its representations, warranties, covenants and/or agreements
contained herein, and (b) any claim that the Program or Hardware infringes
upon a valid patent or copyright, or constitutes any appropriation of a trade
secret. In the event
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either party becomes aware of any threat, warning or notice of any such third
party claim, demand or proceeding which could have an adverse impact on
NetTrade's use of the Program or Hardware hereunder, such party shall notify the
other party promptly of the same in writing.
GOVERNING LAW
16. This Agreement shall be construed according to, and the rights of the
parties shall be governed by, the law of the State of Texas.
ENTIRE AGREEMENT
17. This Agreement sets forth the entire agreement between the parties
with regard to the Program and the other Software that is the subject matter of
this Agreement. No other agreements, representations, or warranties have been
made by either party to the other with respect to the Software.
ATTORNEY'S FEES
18. If any legal action is necessary to enforce the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorney's fees
in addition to any other relief to which the party may be entitled.
SEVERABILITY
19. If any of the provisions of this Agreement are found by a court of
competent jurisdiction to be invalid or unenforceable, they shall be severable
from the remainder of this Agreement and shall not cause the invalidity or
unenforceability of the remainder of this Agreement.
AMENDMENT
20. This Agreement may be amended only by a written agreement signed by
both parties.
EXECUTED at Houston, Texas on the 14th day of November, 1997.
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HOUSTON INTERWEB DESIGN, INC. NETTRADE ONLINE, L.L.C.
By: /s/ XXXXX XXXXX By: /s/ XXX XXXXXXXX
--------------------------------- ------------------------------
Xxxxx Xxxxx, President Xxx Xxxxxxxx, Manager
By: /s/ XXXX XXXXXXX
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Xxxx Xxxxxxx, Manager
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