EXHIBIT 10.13
MASTER SERVICES AGREEMENT
This MASTER SERVICES AGREEMENT ("Agreement"), is entered into effective
March , 1999 (the "Effective Date"), by and between JVWeb, Inc., a Delaware
corporation, having a principal place of business at 0000 Xxxxxxxxxx Xxxx, Xxxxx
0000, Xxxxxxx, XX 00000 ("JVWeb"), and Lernout & Hauspie Speech Products,
S.A./N.V., a corporation organized under the laws of Belgium, having a principal
place of business at Xxxx-Xxxxxxxxxxxxxx 0, 0000 Xxxxx, Xxxxxxx ("L&H").
1. SERVICES.
(a) Work Orders.. JVWeb may wish to have L&H perform services for it as a
subcontractor from time to time in connection with services that JVWeb provides
for its customers (the "Customers"). Such services shall be documented in a Work
Order signed by authorized representatives of both parties. For purposes of this
Agreement, "Services" shall mean the services performed under a Work Order. Each
Work Order shall become part of this Agreement upon its execution by both
parties.
(b) General Nature of Services. The Services will consist of Web page design and
maintenance services and related crisis services, each as further described on
Exhibits A-C and in the applicable Work Order.
(c) Conduct of Services. All work shall be performed in a workmanlike and
professional manner to JVWeb's reasonable satisfaction, in conformity with the
applicable performance standards on Exhibit A, and in any applicable Work Order,
and any materials provided shall be free from defects in materials and
workmanship. Any nonconformity with the foregoing standards shall be corrected
by L&H at its expense. All work product delivered to JVWeb or the Customer shall
be free from any and all liens or encumbrances at the time of delivery. Time is
of the essence in the performance of the Services.
(d) Commencement and Progress of Work. L&H agrees to commence the work on the
date specified in the Work Order and to perform all work diligently thereafter
to completion. Except as otherwise provided in Exhibit C or the applicable Work
Order, if, in the opinion of JVWeb, L&H is not meeting the deadlines set forth
in the Work Order, JVWeb may give L&H notice in writing allowing L&H forty-eight
(48) hours within which to supply necessary services and material described
therein to meet the Work Order deadlines. Should L&H fail or refuse to comply
with the written request, JVWeb may terminate this Agreement and/or the
applicable Work Order pursuant to the provisions in Section 6. If the Customer,
at any time, orders JVWeb to suspend work, JVWeb may order L&H to suspend work
until such time as JVWeb directs L&H to proceed. This Agreement shall remain in
effect during the period of suspension or delay and JVWeb shall not be liable to
L&H therefor. L&H waives any right to make any claim against JVWeb or Customer
for any delay in its commencement or progress, suspension or interruption in
said work, whether caused by JVWeb, Customer, governmental agencies, other
subcontractors or suppliers or any other party.
(e) Method of Performing Services. L&H will determine the method, details, and
means of performing the work to be carried out for JVWeb under each Work Order.
JVWeb shall have no right to, and shall not, control the manner or determine the
method of accomplishing such work. JVWeb may, however, require L&H's personnel
to observe at all times the security and safety policies of JVWeb or the
Customer for whom L&H is performing the Services under the applicable Work
Order. In addition, JVWeb shall be entitled to exercise a broad general power of
supervision and control over the results of work performed by L&H to ensure
satisfactory performance. This power of supervision shall include the right to
inspect, stop work, make suggestions or recommendations as to the details of the
work, and request modifications to the scope of the Work Order.
(f) Use of Subcontractors. L&H may not use any subcontractor to perform the
Services without the prior written approval of JVWeb. All such subcontractors
must agree in writing to be bound by this Agreement and L&H shall remain
responsible for all work performed by its subcontractors
(g) Assignment of Personnel. JVWeb may interview the personnel L&H assigns to
JVWeb's work. L&H personnel may also be subject to security investigation, and
may be rejected or removed from a project upon request by JVWeb, with or without
cause.
(h) Changes. No charges shall be made for any extra work or changes unless such
changes are approved in advance by an authorized representative of JVWeb. If any
change, alteration, deviation or extra work is performed, whether requested by
Customer or not, without the prior written approval by JVWeb, JVWeb shall have
no liability or responsibility for the work performed or any expenses incurred
or payments sought in connection with such change, deviation, alteration or
extra work. L&H acknowledges that this provision may not be waived orally or by
course of dealing or conduct of the parties. If a Change Order results in
reducing the amount or cost of the work described in the Work Order, JVWeb shall
be entitled to a corresponding credit in the amounts payable under the Work
Order.
(i) Reporting. The general manager of each party who is responsible for the
performance of the Services is identified on Exhibit A. In addition, each party
may designate a project manager under an individual Work Order for purposes of
reporting on the day-to-day performance of the Services. Each party shall direct
communications relating to the Services or an individual Work Order to the
appropriate designated manager of the other party. JVWeb and L&H shall develop
appropriate administrative procedures for performance of the Services and for
progress reporting.
(j) Place of Work. L&H's personnel will determine the appropriate location for
the performance of the Services. JVWeb agrees to provide reasonable access to
its facilities to permit L&H or its personnel in order to perform Services and
will use diligent efforts to obtain such consent, when required, from the
Customers.
(k) Workplace Requirements. L&H agrees to observe JVWeb's and Customer's rules
and policies relating to security of, access to, and use of the premises, and
relating to the safety and health of personnel.
(l) Loaned Materials. Any documents, tools, equipment, or other materials
supplied to L&H by JVWeb are for use in performing the Services only and must be
returned in the same condition supplied (reasonable wear and tear excepted) upon
completion or termination . L&H shall not remove from JVWeb' or Customer's
premises any property of JVWeb or Customer, including, but not limited to,
proprietary or confidential information, without the prior written consent of
JVWeb.
(m) Most Favored Customer. L&H will offer the Services to JVWeb and provide such
Services at the lowest price that L&H charges any purchaser of its services for
the same or comparable services. Not more frequently than annually and upon
reasonable advance notice, JVWeb shall have the right to audit L&H's records in
order to confirm its compliance with this provision. Such auditor shall be
independent and bound by the provisions of Section 4 (Confidential Information)
hereof and shall be reasonably acceptable to L&H. JVWeb shall be responsible for
all costs associated with said audit unless the audit discloses a breach of this
provision, in which event L&H shall be responsible for the audit costs.
(n) Exclusivity. During the term of this Agreement, L&H will perform Services in
the United States (or under agreements originating within the United States
regardless of where the Services are performed) exclusively through JVWeb. This
provision shall apply only to the Services and shall not apply to speech
recognition products or any related services offered by L&H or any of its
affiliated entities.
2. PRICES, CONSIDERATION AND PAYMENT TERMS.
(a) Prices. Attached to Exhibit A as Schedule A-1 is a list summarizing the
prices that L&H charges for its services as of the Effective Date. Except as
otherwise provided on the applicable Work Order, L&H will charge and JVWeb will
pay the prices stated on Schedule A-1 for the Services. Subject to the
limitation in Section 1(m), L&H may change the prices listed on Schedule A-1
upon not less than sixty (60) days written notice to JVWeb, provided that any
increase in prices shall not be effective with respect to any outstanding Work
Order which does not permit JVWeb to pass such increases through to its
Customer.
(b) Consideration. In consideration of the Services, JVWeb will pay L&H as
follows:
(i) General Web Page Design and Maintenance Services. With respect to any
Services other than Crisis Services which are performed in the United
States or under an agreement which originates in the United States
(regardless of where the Web site is located or where the services are
actually performed), JVWeb will pay L&H the amount specified in Schedule
A-1 to Exhibit A or the price to which the parties otherwise agree in the
individual Work Order.
(ii) Crisis Services. With respect to any Crisis Services which are performed in
the United States or under an agreement which originates in the United States
(regardless of where the Web site is located or where the services are actually
performed), JVWeb will pay L&H fifty percent (50%) of the gross revenue that
JVWeb receives for Crisis Services performed under agreements originating in the
United States (regardless of where the Web site is located or where the services
are actually performed).
(iii) Hosting Services. In addition to the compensation that L&H receives
directly in connection with the performance of the Services, JVWeb will pay L&H
fifty percent (50%) of all profits that it receives in connection with its
performance of Web site hosting services for any Customer who also receives
Services from L&H.
(c) Payment Terms.
(i) Payment by Invoice. For Services other than Crisis Services or for any
other expenses or services for which L&H claims payment, L&H will submit
invoices to JVWeb not more frequently than biweekly. Such invoices shall be
for the costs incurred since the prior invoice and shall indicate in
reasonable detail the basis for the claim for payment. Subject to Section
10 (c), payment in full for any undisputed invoice is due within thirty
(30) days of the date of such invoice.
(ii) Quarterly Payment for Crisis Services. JVWeb will make payments to L&H for
Crisis Services for which JVWeb has received revenue during each calendar
quarter within thirty (30) days after the close of such quarter. JVWeb will
include with such payment a report indicating the basis for payment in
reasonable detail such that L&H can independently calculate the amount due
for that period.
(d) Expenses. Subject to payment by JVWeb of those costs and expenses which are
made part of a Work Order, L&H shall be responsible for all costs and
expenses incident to the performance of Services, including all costs
incurred by L&H to do business.
3. TREATMENT OF L&H PERSONNEL
(a) Compensation of L&H Personnel. L&H shall be solely responsible for payment
of compensation to its personnel. L&H shall pay and report, for all personnel
assigned to JVWeb's work, federal and state income tax withholding, social
security taxes, and unemployment insurance applicable to such personnel as
employees of L&H. L&H shall bear sole responsibility for any health or
disability insurance, retirement benefits, or other welfare or pension benefits,
if any, to which such personnel may be entitled. L&H agrees to defend,
indemnify, and hold harmless JVWeb and each of its Customers, and their
respective officers, directors, employees and agents, and the administrators of
their respective benefit plans, from and against any claims, liabilities, or
expenses relating to such compensation, tax, insurance, or benefit matters;
provided that JVWeb shall (1) promptly notify L&H of each such claim when and as
it comes to JVWeb's attention; (2) cooperate with L&H in the defense and
resolution of such claim; and (3) not settle or otherwise dispose of such claim
without L&H's prior written consent, such consent not to be unreasonably
withheld.
(b) Workers' Compensation. Notwithstanding any other workers' compensation or
insurance policies maintained by JVWeb or its Customers, L&H shall procure
and maintain workers' compensation coverage sufficient to meet the
statutory requirements of every state in which L&H personnel are engaged in
JVWeb's work.
(c) L&H Agreements With Personnel. L&H shall obtain and maintain in effect
written agreements with each of its personnel who participate in any of
JVWeb's work under any Work Order. Such agreements shall contain terms
sufficient for L&H to comply with all provisions of this Agreement, and
shall confirm that such personnel shall have no status as employees of
JVWeb and no claim under any JVWeb benefit plan.
(d) State and Federal Taxes. As neither L&H nor its personnel are JVWeb's
employees, JVWeb shall not take any action or provide L&H's personnel with
any benefits or commitments inconsistent with any of such undertakings by
L&H. In particular, JVWeb will not (1) withhold FICA (Social Security) from
L&H's payments, (2) make state or federal unemployment insurance
contributions on behalf of L&H or its personnel, (3) withhold state and
federal income tax from payment to L&H, (4) make disability insurance
contributions on behalf of L&H, or (5) obtain workers' compensation
insurance on behalf of L&H or its personnel.
4. CONFIDENTIALITY
L&H shall maintain in strict confidence, and shall use and disclose
only as authorized by JVWeb, all JVWeb or Customer information of a
competitively sensitive or proprietary nature that it receives in connection
with the work performed for JVWeb pursuant to each Work Order. L&H shall require
its personnel to agree in writing to do likewise. JVWeb shall take reasonable
steps to identify for the benefit of L&H and its personnel any information of a
competitively sensitive or proprietary nature, including by using
confidentiality notices in written material where appropriate. These
restrictions shall not be construed to apply to (1) information generally
available to the public; (2) information released by JVWeb generally without
restriction; (3) information independently developed or acquired by L&H or its
personnel without reliance in any way on other protected information of JVWeb;
or (4) information approved for the use and disclosure of L&H or its personnel
without restriction. Notwithstanding the foregoing restrictions, L&H and its
personnel may use and disclose any information (1) to the extent required by an
order of any court or other governmental authority or (2) as necessary for it or
them to protect their interest in this Agreement, but in each case only after
JVWeb has been so notified and has had the opportunity, if possible, to obtain
reasonable protection for such information in connection with such disclosure.
5. INTELLECTUAL PROPERTY; OWNERSHIP OF WORK PRODUCT
(a) Ownership of Intellectual Property and Work Product. JVWeb, its Customers,
and L&H shall retain all ownership rights in the materials and the intellectual
property owned by each of them prior to the commencement of the Services and
nothing herein shall be construed as constituting an assignment or transfer of
such rights. With respect to any work product that L&H or its personnel develops
or creates in connection with the performance of the Services, all copyrights,
patents, trade secrets, or other intellectual property rights associated with
any ideas, concepts, techniques, inventions, processes, or works of authorship
shall belong exclusively to JVWeb or its Customers and shall, to the extent
possible, be considered a work made for hire for JVWeb within the meaning of
Title 17 of the United States Code. L&H automatically assigns, and shall cause
its personnel automatically to assign, at the time of creation of the work
product, without any requirement of further consideration, any right, title, or
interest it or they may have in such work product, including any copyrights or
other intellectual property rights pertaining thereto. Upon request of JVWeb,
L&H shall take such further actions, and shall cause its personnel to take such
further actions, including execution and delivery of instruments of conveyance,
as may be appropriate to give full and proper effect to such assignment.
(b) License to L&H Pre-Existing Works. To the extent that preexisting work or
materials owned or licensed by L&H are included in any work product, L&H
grants to JVWeb or its Customer, as applicable, an irrevocable,
nonexclusive, perpetual worldwide, royalty-free right and license to use,
execute, reproduce, display, perform, and distribute (internally and
externally) copies of, and prepare derivative works based on, such work and
materials, and the right to authorize others to do any of the foregoing.
(c) L&H Tools. Notwithstanding Section 5(a), any routines, libraries, tools,
methodologies, processes, or technologies created, adapted, or used by L&H
in its business generally, including all associated intellectual property
rights (collectively, the "Development Tools") shall be and remain the sole
property of L&H, and JVWeb or its Customers shall have no interest in or
claim to such Development Tools except as necessary to exercise its rights
in the work product. Subject to the intellectual property rights of JVWeb
and/or its Customers, nothing in this Agreement shall be construed to
preclude L&H from acquiring, developing, marketing, or enhancing for itself
or others similar technology performing the same or similar functions as
the technology used or created pursuant to this Agreement.
(d) Residual Rights of Personnel. Notwithstanding Section 5(a), L&H and its
personnel shall be free to use and employ its and their general skills,
know-how, and expertise, and to use, disclose, and employ any generalized
ideas, concepts, know-how, methods, techniques, or skills gained or learned
during the course of any assignment, so long as it or they acquire and
apply such information without disclosure of any confidential or
proprietary information of JVWeb or its Customer and without any
unauthorized use or disclosure of Work Product.
6. TERM AND TERMINATION
(a) Term. The term of this Agreement shall commence on the date set forth above
and shall continue for a minimum period of three (3) years, and thereafter
for as long as JVWeb seeks or obtains services from L&H unless either party
expressly terminates it by not less than sixty (60) days' notice to the
other party.
(b) Termination.
(i) Termination of Work Order by Customer. If a Customer requires JVWeb to
terminate the applicable Work Order without cause, it may do so upon ten
(10) days prior written notice, and in such event JVWeb shall pay to L&H
the reasonable value of L&H's prior performance, if any, up to the
termination date, which payment shall be no more than the rate specified in
the applicable Work Order prorated to reflect the percentage of work that
is completed as of the date of such termination; or, if the Work Order is
performed as a lump-sum contract, the reasonable value shall be L&H's cost
of work and materials to date, plus ten percent (10) per cent, but shall
not exceed the contracted lump sum. In the event of such termination, L&H
shall not be entitled to any payment for anticipated profits or
compensation for uncompleted portions of the work hereunder.
(ii) Termination for Breach. In addition to the foregoing, if either party
defaults in the performance of any of its material obligations under the
Agreement and the default remains uncured for a period of thirty (30) days
after receipt by such party of written notice thereof from the other party,
then the injured party, in addition to any other rights and remedies
available, may terminate the applicable Work Order and/or this Agreement at
any time by giving notice thereof in writing to the defaulting party. Any
termination by L&H of this Agreement under this Section 6(b)(iii) will be
subject to L&H's obligation to complete performance under any Work Order
where work is in progress and where L&H's cessation of work would cause
JVWeb to default under the agreement with a Customer.
(iii)Bankruptcy. Either party may terminate this Agreement in the event that the
other party files for bankruptcy or becomes an involuntary participant in a
bankruptcy proceeding, if such proceedings are not dismissed within ninety
(90) days after commencement; or such party announces that it has ceased or
intends to cease to do business.
(iv) Termination of Work Orders. JVWeb may, at its sole option, terminate any
Work Order, or any portion thereof, upon thirty (30) days' advance written
notice. Upon receipt of such notice, L&H shall advise JVWeb of the extent
to which performance has been completed through such date, and collect and
deliver to JVWeb whatever work product then exists in the manner requested
by JVWeb. L&H shall be paid for all work performed through the date of
termination.
(v) Survival of Obligations Upon Termination. In addition to any provisions
which survive termination of this Agreement in accordance with their
express terms, all provisions of this Agreement which by their nature would
be useful to the interpretation or the enforcement of rights and remedies
under this Agreement after its termination shall survive termination.
7. INDEMNITY
(a) Generally. To the fullest extent permitted by law, L&H shall defend,
indemnify and hold harmless JVWeb and the Customer (including their affiliates,
parents and subsidiaries and their agents, officers and employees) from and
against all claims, damages, loss and expenses (including attorney's fees)
arising out of or resulting from the performance or nonperformance of this
Agreement (including any Exhibit or Work Order) by L&H, including, but not
limited to, any action alleging a breach of warranty (express or implied) or
defect or negligence or poor workmanship relating to work performed by L&H, or
not performed by L&H where the work should have been performed by L&H; or
alleging failure to comply with applicable laws, regulations and ordinances,
including, without limitation, any fines, penalties or corrective measures; or
alleging that any Services or work product that L&H provides infringes any
patent, copyright, trade secret, trademark, or any other intellectual property
or proprietary right.
(b) No Limitation of Liability for Suits by Employees. In any and all claims
against JVWeb or the Customer (including their affiliates, parents and
subsidiaries and their agents, officers and employees) by L&H's direct or
indirect employees or anyone for whose acts L&H may be liable under
worker's compensation acts, disability benefit acts or other employee
benefit acts, the indemnification obligation in Section 7.1 shall not be
limited in any way with respect to the amount or type of damages,
compensation or benefits payable by or for L&H under such acts.
(c) Procedure. Upon becoming aware of any claim, action or proceeding involving
an indemnification obligation by L&H hereunder, JVWeb will promptly notify
L&H of such claim, action or proceeding and will give L&H full and complete
authority to defend and/or settle the matter. L&H shall not be responsible
for any compromise made by JVWeb without the prior written consent of L&H.
In any instance where the outcome of a claim of infringement of an
intellectual property right is a finding of infringement and the use of the
material is enjoined, or if, in the opinion of L&H, such material is likely to
become the subject of a valid claim of infringement, L&H, at its own election
and at its own expense shall (a) procure for JVWeb (or the Customer, as
applicable) the right to continue using the allegedly infringing material; (b)
modify the material so that it becomes non-infringing while still conforming
with any applicable specifications; or (c) replace such materials with
non-infringing materials which still conform with any applicable specifications.
If L&H cannot comply with any of the foregoing measures, L&H will reimburse
JVWeb for the materials in such amount as adequately compensates it.
8. ASSURANCES
(a) No Conflict. As of the Effective Date, L&H does not, and during the term of
hereof, L&H will not have any obligations to any third party that will in
any way limit or restrict its ability to perform its obligations to JVWeb
and the Customers hereunder. L&H agrees that it will not disclose to JVWeb
or any Customer, or make use in the performance of any work hereunder, any
trade secrets, or other proprietary information of any third party, unless
L&H may do so without L&H, JVWeb, or the Customer incurring any obligation
(past or future) to such third party for such work or any future
application thereof.
(b) No Solicitation. During the term of this Agreement and for a period of six
(6) months thereafter, L&H shall not, either directly or indirectly,
solicit, entice, or persuade any employees of JVWeb or a Customer to
terminate their employment with JVWeb (or the Customer) for any reason.
(c) Customers. L&H shall not, without the prior written consent of JVWeb, at
any time during or for the period of six (6) months immediately following a
JVWeb sales lead or Customer bid proposal or the final completion of the
work resulting from a JVWeb sales lead or Customer bid proposal (whichever
is later) either on its own behalf or on behalf of any other person, firm,
company or organization directly or indirectly induce or seek to induce any
Customer or prospective Customer not to do business, or to cease doing
business under any agreement, with JVWeb.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL JVWEB BE LIABLE TO L&H FOR ANY DAMAGES FOR DELAY, LOST
PROFITS, OR OTHER SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING
OUT OF OR IN CONNECTION WITH PERFORMANCE OF THIS AGREEMENT, EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The foregoing limitation of
liability includes delays that are directly the fault of the Customer or JVWeb,
or any third party.
10. RELATIONSHIP OF AGREEMENT TO AGREEMENT WITH CUSTOMER
(a) Customer Approval of Terms. The parties recognize that Work Orders to this
Agreement are subject to the approval of the Customer of corresponding
terms in its agreement with JVWeb.
(b) Terms and Conditions of Agreement with Customer. This Agreement incorporates
by reference, where applicable, all of the requirements, representations,
obligations, remedies and liabilities that are imposed on JVWeb under its
agreement with the Customer wherever it is reasonably contemplated or necessary
for such to be imposed on L&H thereunder, including, without limitation, all
provisions with respect to warranties, termination, default, liquidated damages,
reprocurement costs, audits, delivery, performance schedules and force majeure,
as well as any other provisions set forth in the applicable Customer agreement
to the extent they relate to the services and materials to be provided
hereunder. L&H further agrees to abide by the requirements, make the
representations and accept the obligations, remedies and liabilities that are
imposed on JVWeb under such Customer agreement, where it is contemplated or
necessary for such to be imposed on a L&H thereunder. The applicable provisions
shall be set forth in the Work Order.
(c) Payment Conditioned Upon Receipt of Revenue. Notwithstanding the obligation
of the Customer to pay JVWeb for Services under the Customer Agreement,
under no circumstance shall JVWeb be obligated to pay L&H for such Services
until it receives payment from Customer therefor.
11. DISPUTE RESOLUTION
(a) Generally. The parties desire to resolve certain disputes, controversies and
claims arising out of this Agreement without litigation. Accordingly, except in
the case of (i) a dispute, controversy or claim relating to a breach or alleged
breach on the part of either party of the provisions of Section 5, (ii) a suit,
action or proceeding to compel L&H to comply with its obligations to indemnify
JVWeb pursuant to Section 7 of this Agreement or (iii) a suit, action or
proceeding to compel either party to comply with the dispute resolution
procedures set forth in this Section 11, the parties agree to use the following
alternative procedure as their sole remedy with respect to any dispute,
controversy or claim arising out of or relating to this Agreement or its breach.
The term "Arbitrable Dispute" means any dispute, controversy or claim to be
resolved in accordance with the dispute resolution procedure specified in this
Section 11.
(b) Informal Resolution. At the written request of a party, each party shall
appoint a knowledgeable, responsible representative to meet and negotiate in
good faith to resolve any Arbitrable Dispute arising under this Agreement. The
parties intend that these negotiations be conducted by nonlawyer, business
representatives. The discussions shall be left to the discretion of the
representatives. Upon agreement, the representatives may utilize other
alternative dispute resolution procedures such as mediation to assist in the
negotiations. Discussions and correspondence among the representatives for
purposes of these negotiations shall be treated as confidential information
developed for purposes of settlement, shall be exempt from discovery and
production, and shall not be admissible in the arbitration described below or in
any lawsuit without the concurrence of all parties. Documents identified in or
provided with such communications, which are not prepared for purposes of the
negotiations, are not so exempted and may, if otherwise admissible, be admitted
in evidence in the arbitration or lawsuit.
(c) Arbitration. If the negotiations do not resolve the Arbitrable Dispute
within sixty (60) days of the initial written request, the Arbitrable Dispute
shall be submitted to binding arbitration under the Commercial Arbitration Rules
of the American Arbitration Association presided over by a single arbitrator
selected pursuant to those rules. A party may demand such arbitration, in
accordance with the procedures set out in those rules, at the office of the
American Arbitration Association closest to the other party. Discovery shall be
controlled by the arbitrator and shall be permitted to the extent set out in
this Section. Each party may submit in writing to a party, and that party shall
so respond, to a maximum of any combination of thirty-five (35) (none of which
may have subparts) of the following: interrogatories, demands to produce
documents and requests for admission. Each party is also entitled to take the
oral deposition of up to two (2) individuals of another party. Additional
discovery may be permitted upon mutual agreement of the parties. The arbitration
hearing shall be commenced within sixty (60) days of the demand for arbitration
and the arbitration shall be held in a mutually acceptable location. The
arbitrator shall control the scheduling so as to process the matter
expeditiously. The parties may submit written briefs. The arbitrator shall rule
on the Arbitrable Dispute by issuing a written opinion within thirty (30) days
after the close of hearings. The times specified in this Section may be extended
upon mutual agreement of the parties or by the arbitrator upon a showing of good
cause. Judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction.
(d) Costs. Each party shall bear its own cost of these procedures. A party
seeking discovery shall reimburse the responding party the cost of production of
documents (to include search time and reproduction time costs). The parties
shall equally share the fees of the arbitration and the arbitrator. The
arbitrator may award attorneys' fees to the prevailing party as set forth in
Section 12 (l).
12. GENERAL PROVISIONS
(a) Entire Agreement of the Parties. This Agreement supersedes any and all
agreements, either oral or written, between the parties hereto with respect
to the subject matter hereof and contains all the covenants and agreements
between the parties with respect thereto. Each party to this Agreement
acknowledges that no representations, inducements, promises, or agreements,
orally or otherwise, have been made by any party, or anyone acting on
behalf of any party, that are not embodied herein, and that no other
agreement, statement, or promise not contained in this Agreement shall be
valid or binding. Any modification of or amendment to this Agreement will
be effective only if it is in writing signed by both parties.
(b) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the United States of America and the State of
Texas as applied to agreements entered into and fully performed therein by
residents thereof. The parties hereby exclude the applicability of the
United Nations Convention on Contracts for the International Sale of Goods.
(c) Jurisdiction and Venue. L&H hereby submits to the binding jurisdiction of
the courts of the State of Texas and the federal courts having jurisdiction
over Texas for any dispute arising under this Agreement which may be
adjudicated in a court of law pursuant to Section 11 hereof and agrees that
it will not object to venue for any such action in Houston, Texas.
(d) Order of Precedence. To the extent practicable, this Agreement and any Work
Order relating to it are to be construed as supplementing one another.
Where a conflict arises which may only be resolved by giving precedence to
one document, the Work Order will govern as to performance of the parties
under that Work Order.
(e) Subcontracting and Assignment. L&H agrees that it will not subcontract or
assign any of the work hereunder without submitting the identity of such
subcontractor to JVWeb and without obtaining the prior written approval of
JVWeb thereto. Subject to the foregoing restrictions, the provisions of
this Agreement shall be binding upon and shall inure to the benefit of the
heirs, executors, administrators, successors and assigns of each party
hereto. Any subcontract by L&H shall include and incorporate all of the
provisions of this Agreement and any applicable Work Order and the parties
thereto shall agree to be bound by such provisions.
(f) Relationship. L&H is an independent contractor of JVWeb under this
Agreement, and nothing contained in this Agreement will be construed to (a) give
either party the power to direct and control the day-to-day activities of the
other, or (b) constitute the parties as partners, joint venturers, co-owners, or
otherwise as participants in a joint or common undertaking. L&H, its agents and
employees, will have no power or authority to certify, represent, act on behalf
of, bind, or otherwise create or assume any obligation on behalf of JVWeb for
any purpose whatsoever. L&H may not make any representations or certifications
to any governmental body concerning the status of JVWeb. Any representations and
certifications made by L&H shall be solely concerning the status of L&H. All
financial obligations associated with L&H's business are the responsibility of
L&H. All agreements between L&H and its customers are L&H's exclusive
responsibility. L&H will be solely responsible for, and will indemnify and hold
JVWeb free and harmless from, any and all claims, damages or lawsuits arising
out of the acts of L&H, its employees, servants, agents, or any of them.
(g) Severability and Waiver. The partial or complete invalidity of one of more
provisions of this Agreement or the Work Orders to be performed hereunder
shall not affect the validity or continuing force and effect of any other
provision. The failure of either party to insist, in any one or more
instances, upon the performance of any of the terms, covenants or
conditions of this Agreement, or to exercise any right herein, shall not be
construed as a waiver or relinquishment of such term, covenant, condition
or right as respects further performance.
(h) Legal Compliance and Approvals. L&H shall perform its obligations hereunder
in compliance with all applicable city, county, state and federal
ordinances, codes, rules, laws, regulations and requirements. L&H is
responsible for understanding and complying with all applicable codes and
ordinances and complying with other requirements of city and county
agencies and departments.
(i) No Discrimination. L&H agrees that in the performance of this Agreement it
will not discriminate or permit discrimination against any person or group
of persons on the grounds of sex, race, color, religion, or natural origin
in any manner prohibited by the laws of the United States.
(j) Construction of Agreement. This Agreement is the product of negotiation by
the parties and their attorneys and shall not be construed against either
party as the drafting party.
(k) Notices. All notices, authorizations, and requests in connection with this
Agreement shall be deemed given (i) five (5) business days after they are
deposited with the local national mail of the sender, first-class postage
prepaid; or (ii) the three (3) business day after they are sent by air
express courier; and addressed as follows:
JVWeb: L&H:
JVWeb, Inc. Lernout & Hauspie Speech Products, S.A./N.V.
0000 Xxxxxxxxxx Xxxx Xxxx-Xxxxxxxxxxxxxx 0
Xxxxx 0000 8900 Ieper, Belgium
Xxxxxxx, XX 00000 Attention: Xxxxxxx Xxxx
Attention: Xxxxxxx X. Xxxxx, President
With a copy to: With a copy to:
Lernout & Hauspie Speech Products, X.X./X.X.
Xxxx-Xxxxxxxxxxxxxx 0
0000 Xxxxx, Xxxxxxx
Attention: Xxxxxx Wooliams
or to such other address as a party may subsequently designate in writing.
(l) Public Announcements. Neither party shall make public information
concerning the existence of this Agreement or any Work Order hereunder
through press releases or other disclosures without the prior review and
written consent of the other party, which consent shall not be unreasonably
withheld. The terms of this Agreement shall at all times remain
confidential.
(m) Attorneys' Fees. In the event of a dispute arising out of this Agreement,
the prevailing party shall be entitled to recover its attorneys' fees.
(n) Insurance. L&H shall at its own expense effect and maintain for the
duration of the Agreement such insurance as required by any applicable law
and as appropriate in respect of its obligations under the Agreement. Such
insurance shall include third party liability insurance and, where
appropriate, professional indemnity insurance, each with an indemnity limit
of not less than $1,000,000 for each and every claim.
(o) Continued Performance During Disputes. In the event of any controversy as
to the duties and rights of the parties under this Agreement, or under any
change order or order for additional work issued by JVWeb, L&H shall
continue work, and shall complete work under any Work Order then in
progress.
(p) Force Majeure. Neither party will be liable for any failure or delay in
performing any of its obligations under the Agreement that is due to causes
beyond its reasonable control, such as acts of God, the public enemy, war,
strikes, or walk-outs, except that L&H is not excused for any default or
delay resulting from a strike or walk-out against L&H as a member of an
employees association or as a result of area wide bargaining and is not
excused for delays resulting from weather conditions that can be normally
anticipated for the area and time of year.
(q) Parties in Interest. This Agreement is enforceable only by L&H and JVWeb.
The terms of this Agreement are not a contract or assurance regarding
compensation, continued employment, or benefit of any kind to any of L&H's
personnel assigned to JVWeb's work, or any beneficiary of any such
personnel, and no such personnel, or any beneficiary thereof, shall be a
third-party beneficiary under or pursuant to the terms of this Agreement.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the Effective Date.
JV WEB, INC. LERNOUT & HAUSPIE SPEECH PRODUCTS, S.A./N..V.
Xxxx X. Xxxxx, President
Name
Title
EXHIBIT A
1. Services. L&H shall provide the following services to the Customers: (a)
General Web Page Design and Maintenance Services. The Web page design and
maintenance services shall include, without limitation, services relating to
business information consultancy, Web page design, implementation, testing,
management, and maintenance, as further described in Exhibit B. (b) Crisis
Services. The Crisis services shall include 24/7 crisis response to Web site
errors meeting the performance and response standards set forth on Exhibit C. 2.
General Performance Specifications. In addition to any other specifications set
forth in the Agreement or under an applicable Work Order, all L&H work product
delivered to JVWeb or the Customer shall meet the following requirements: (a)
The work product, as incorporated into JVWeb's or the Customer's materials, as
applicable, will be fully compatible (without modification, loss of performance,
loss of use, or work or expense on the part of JVWeb) with changes to inputs,
outputs, data or other Information in relation to dates arising in the year 2000
and beyond; and (b) The work product will continue to be free of defects
appearing one hundred eighty (180) days of its acceptance arising from faulty
design, workmanship, materials or L&H negligence; and (c) L&H shall have taken
all reasonable steps in the preparation and delivery of the work product to
ensure that the work product is not infected by viruses, including, without
limitation, testing the work product using the latest commercially available
detection software to test the Deliverables and any updates for viruses. For the
purposes of this paragraph "viruses" shall include "logic-bombs" as they may be
generally understood within the computing industry from time to time. 3.
Managers. (a) JVWeb:
[insert contact information here.]
(b) L&H:
[insert contact information here.]
4. L&H Prices. L&H prices are attached hereto as Schedule A-1.
EXHIBIT B
--------------------------------------------------------------------------------
L&H Bidding and Proposal Procedures
--------------------------------------------------------------------------------
================================================================================
L&H Reference:
================================================================================
Prepared by L&H
Date 13 October 1999
Contact Xxx Xxxxxxxxx
Tel: 01473 623232
This document and any information or descriptive matter set out herein is the
confidential and copyright property of L&Hn S.A.C. (a wholly owned subsidiary of
L&H), and must not be loaned, copied, or used for tendering or any other purpose
without prior written permission. (C)
(C) Lernout & Hauspie 1 Exhibit B, page 1 c:\my
documents\word\jvw\10k699\l&hagt.doc
Exhibit B, page 1
c:\my documents\word\jvw\10k699\l&hagt.doc
1. Executive Summary.................................................................................2
2. Phase 1 -Business Information Consultancy.........................................................3
3. Phase 2 -design and build.........................................................................8
4. Site marketing and launch.........................................................................9
5. Site management..................................................................................10
6. Costing..........................................................................................11
7. Commercial.......................................................................................12
Executive Summary
This section would define the identified requirements of the client,
the solution recommended by L&H, and purpose of the proposal, including
a brief outline of the two phases (see below).
Phase 1 - Business Information Consultancy
The purpose of the business information consultancy varies according to
the scale of the project: where a client needs to place very specific
information on-line, it would consist simply of a functional
requirement capture. Where the project is larger and broader in nature,
it could include a full range of business information audit activities.
In all cases the deliverables from Phase 1 will be used to develop a
detailed scope of supply for Phase 2. Any prices supplied to the client
for design and build during Phase 1 would be estimated prices.
Define audiences, internal and external
The purpose of this activity is to establish who the web-site is aimed
at, and how the needs of the target audience will affect the look and
feel, functionality and navigation structure.
This phase would also be used to determine if the web-site was required
in more than one language, and if so, how the multi-lingual elements of
the project would be handled.
The deliverable would be a brief, summary report, outlining L&H's
understanding of the site's audiences and any multilingual issues. L&H
would then request that the client sign off the report, to confirm that
L&H's understanding of these issues was correct and complete.
Develop branding - look and feel
The purpose of this activity is to establish the graphical identity
that should be created for the web-site. It includes gaining an
understanding of the client's brand identity and corporate style, or,
where no brand exists, identifying the work that is required to create
a brand on behalf of the client.
Once an understanding of brand has been gained, L&H would normally
produce concept visuals, demonstrating the proposed colour scheme, look
and feel, use of imagery, etc. L&H would ask that the concept visuals
be signed off before the project progresses. While some minor design
changes are inevitable following the sign off, the client's signature
indicates an acceptance of the general look and feel.
Define roles and responsibilities
The purpose of defining roles and responsibilities is to ensure that
when development work starts, key roles have been identified. These may
include the client, the client's representative on technical matters,
and members of the company that own particular types of information
(such as sales information, marketing information, etc.).
It will also include defining the roles of the L&H project team - this
would be especially important where the project was being developed in
multiple offices, or if the project was being developed in conjunction
with a strategic partner.
The ultimate objective would be to ensure that all parties involved in
the project understand who has ownership of what development processes.
This allows effective project management. The deliverable from this
would be a contact details list, for distribution to client staff and
L&H personnel. It would briefly summarise the roles of all designated
contacts, their areas of special responsibilities, and for L&H
contacts, escalation procedures for dealing with any problems.
Develop publishing model
The objective here is to define how the roles defined above interact
with each other. The result should be a publishing model (a diagram
depicting a process) that allows both rapid publishing of information,
and appropriate oversight for the client and the L&H project manager.
This diagram would be delivered in conjunction with the contact list
that is a deliverable of the `Defining roles and responsibilities'
stage. The client would be asked to sign-off both items to indicate
their acceptance of the process and the roles of individuals involved.
Audit content
The objective of this exercise is to establish how much information the
client wishes to publish on the web-site initially, and how much of
this information needs to be created / converted from legacy data or
paper. The total quantity of content being published has an obvious
influence on the price.
Facts that should be ascertained include:
o Total quantity of content
o How much of that content is in existence
o What form existing content is available in
o What content has to be created
o What content has to be converted from legacy data / paper
o Whether the client requires assistance in creating that content
The deliverable from this phase is a register of available content and
content to be created. This content register will act as an important
document for tracking the progress of the project in Phase 2.
The client will be asked to sign off the content asset register
content creation register, including the assessment of the total
quantity of content to be included in the site.
Develop information structure - define navigation
The information and navigation structure can be developed following the
assessment of the quantity of information that will be published on the
site, and sign-off of look and feel.
The structure will be influenced by the audiences identified for the
site, and the content identified for the site. The deliverable from
this stage would be a diagram illustrating the way information would be
structured within the site, and how users would move from one section
to another. The diagram would also indicate what quantities of
information would be included within each section of the web-site.
The client would then be requested to sign-off the site structure
diagrams.
Develop functional specification
There are two crucial technical aspects of developing a web project:
o Functional specification - this defines what the web-site will do (its
functionality)
o Technical specification - this defines how the defined functionality
will be achieved
In order to develop the functional specification, L&H would work with
the client to answer a series of questions, covering all aspects of
web-site functionality. These would cover a wide variety of issues,
including:
o Target web-browsers (if any)
o Target screen resolution (if any)
o Multimedia functionality required (if any)
o E-commerce functionality required (if any)
o Dynamic publishing functionality required (if any)
o Database integration functionality required (if any)
o What editor the client wishes to use to edit the site following delivery, if
any (e.g. FrontPage, etc.)
o What feedback functionality is required, if any (e.g. forms, forums,
etc.)
o What search functionality is required (if any)
o Any other functionality that the client requires or technologies that they
would like to see used - this could cover anything from digital
certificates or streaming media to integration with legacy database
systems.
When all of this information had been gathered, L&H would ask the
client to sign-off the functional specification - this would be a brief
description of what the web-site will do, complete with a listing of
all functional information gathered. Client acceptance of the
functional specification will allow L&H to develop a technical
specification (see below).
L&H would of course provide all assistance to the client in determining
the functional specification, explaining or demonstrating any and all
issues that might prove problematic.
Technical specification
The technical specification for the web-site is an internal document
for use by L&H. The technical specification will be designed to best
achieve the desired functionality, using the best and most appropriate
technologies.
The technical specification will be available for the client to see at
any time.
Develop project plan
A project plan will be developed, identifying the major stages of the
development, key project dependencies, milestones and sign-off points,
and predicting a finish date for the project based on an assumed
start-date.
The client will be asked to sign-off the project plan, indicating their
acceptance of the timescales, project elements and project dependencies
involved in developing the project.
The client will be asked to sign off on project deliverables as they
are delivered, so that the project can move to the next phase.
Fixed price costing for build and implementation
Following the completion of all appropriate elements for Phase 1, L&H
would be in a position to submit a detailed specification for Phase 2.
This would be developed into a proposal for the client that included a
fixed price and a detailed scope of supply for the project.
Phase 2 - design and build
Creation of shell and graphics
The Phase 1 exercise should have broadly identified the number of page
types that will be required (e.g. home page, first level page, second
level page, etc.). HTML shells will be created for each of these page
types.
This will demonstrate the proposed look and feel for the site (use of
graphics and icons, etc.), how the pages will look and how the
navigation will work.
These shells will be made available to the client for comments, and
when all design and navigation change requests have been incorporated,
the client will be asked to sign them off. Significant changes
subsequent to this sign-off would be considered a variation of the
project.
Integration of content
When the HTML page-types for the web-site have been signed off, they
can be populated with the content that has been provided by the client.
This includes all page information, associated documents, PDFs, etc.
L&H will incorporate all supplied content into the HTML shells, and
incorporate all graphics and downloadable files.
Site testing against target specification
L&H will test the system against the target specification defined in
Phase 1. This will include testing the system in all specified browsers
and screen resolutions.
When the system has been fully tested, and any elements of the system
that fail to meet the functional specification have been amended, the
client will be asked to sign off the system, indicating their
acceptance of the system.
Following sign-off, the system would be covered by L&H's standard
28-day warranty, during which period minor errors or technical problems
would be fixed by L&H (this would not include the addition of any new
content or extra functionality).
Site marketing and launch
L&H would offer a variety of site marketing and launch support
activities to a client:
Registration with search engines
L&H would offer to register the site with Internet search engines and
directories. To take advantage of this, the client would be asked to
submit keywords, a brief company description and contact details for
the client that would be used when registering the site. The client
would be asked to sign-off these details, and to indicate their
understanding that L&H could in no way guarantee the subsequent
performance of the search engines with regard to the web-site in
question.
This activity could be included within the scope of the Phase 2
proposal, or submitted to the client as a separate, costed proposal.
PR and promotion
L&H have the capability to provide various types of support to
companies launching a web-site. This could include advice on public
relations and ways of promoting the web-site, provision of printed
design materials for employees or customers, or design of
banner-adverts for deployment on the World Wide Web.
These activities could be included within the scope of the Phase 2
proposal, or submitted to the client as a separate, costed proposal. In
either case, they would be properly scoped and costed, in terms of
deliverables or hours of effort, and a mechanism would be included to
record customer acceptance once the work had been carried out.
Site management
L&H have the capability to take full responsibility for the
administration of the web-site following delivery, including:
o Updating and amending the site
o Archiving of material on the site
o Dealing with site design and management related queries generated from
the site
o Dissemination of weekly statistics concerning site use, etc.
Should the client require L&H to maintain the web-site, L&H would
normally define the expectations, responsibilities, response times and
charges involved in the maintenance and support of the web-site in a
separate, costed Service Level Agreement, following the completion of
Phase 2 of the project (see Appendix A).
This Service Level Agreement would define procedures for publishing on
the web-site, and the roles and responsibilities of the client and L&H.
It would also define what site usage statistics the client required,
how frequently these were to be generated and what format they would be
presented to the client in. L&H's charges for the complete range of
services would be presented, and if L&H personnel were to work on
client premises, all issues pertaining to that situation would be
considered, and arrangements agreed.
The client would be asked to sign-off the Service Level Agreement
before site maintenance could begin.
Costing
L&H are happy to break down all charges for the purposes of its
clients. The breakdown can include:
o How personnel resources have been allocated for the project
o Daily or hourly rates for different types of personnel
o Materials expenditure anticipated for a project
o Costs by phase
o Costs by activity
o Overtime rates where applicable
How these costs would be broken down in an individual proposal would
normally depend on the nature of the project.
Commercial
Intellectual Property
Subject to any pre-existing third party rights the intellectual
property rights in any project would normally vest with the client.
Validity
Proposals are normally valid for a period of 28 days from the date of
the proposal.
Variance
L&H reserve the right to submit a variation request if the scope of the
work, as outlined in the proposal, changes.
Part Invoicing
L&H reserve the right to invoice on a monthly basis for completed
elements of any proposed project.
EXHIBIT C
CRISIS SERVICES
Performance and response standards. [To be added]
