ELECTRONIC COMMERCE LICENSE
AND HOSTING AGREEMENT
This Electronic Commerce License and Hosting Agreement
("Agreement") is made and entered into between Travel
Dynamics organized under the laws of the State of
Nevada, with its principal place of business located at
0000 Xxxxx Xxxxx Xxxxxx Xxxx, Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, XX 00000 (hereinafter referred to as
"Travel Dynamics"), and APEX Interactive, Inc., a
corporation organized under the laws of the State of
Wisconsin, with its principal place of business located
at 00000 Xxxxxxxxxx Xxxxx, #000, Xxxxxxxxx, Xxxxxxxxx
00000 (hereinafter referred to as "APEX") and shall be
effective as of the date this Agreement has been
executed and delivered by both parties ("Effective Date").
WITNESSETH:
A. APEX is engaged in the business
of website development, marketing, and
hosting. Travel Dynamics is engaged in the
business of multilevel marketing. Travel
Dynamics wishes to engage APEX to develop
and host a website related to Travel
Dynamics' business, and APEX wishes to be so
engaged, on the terms and conditions
contained herein.
B. Xxxxxx Xxxx ("Xxxx") is a
principal of Beechwood Research, LLC
("Beechwood"). Beechwood and Travel
Dynamics have previously attempted to
negotiate a so-called "Purchase Agreement -
Electronic Commerce Site" (the "Beechwood /
Travel Dynamics Agreement"), under the
mutually mistaken assumption that Beechwood
was able to sell the rights to the Product
to Travel Dynamics. The Beechwood / Travel
Dynamics Agreement has been terminated
pursuant to a Terminated Agreement between
Beechwood and Travel Dynamics dated March
____, 2000 and is not in force and effect.
C. In anticipation of the execution
and delivery of the Beechwood / Travel
Dynamics Agreement, Travel Dynamics made
payments to Beechwood in the amount of
$212,500. Xxxx has forwarded such sum to
APEX, and such sum shall be credited towards
the fee to be paid by Travel Dynamics
hereunder as set forth in the table in
Exhibit B.
I. DEFINITIONS
1.01. "Travel Dynamics Original Work"
shall mean materials and information
(including, but not limited to, Source Code)
provided by Travel Dynamics to APEX, as well
as any component or components of the
Product derived from Travel Dynamics
Original Work or Travel Dynamics Licensed Work.
1.02. "Travel Dynamics Licensed Work"
shall mean materials licensed to Travel
Dynamics by a third party for use in the
Product. "APEX Licensed Work" shall mean
material licensed to APEX by a third party
for use in the Product upon terms which are
acceptable to Travel Dynamics, and any
derivations thereof. "Licensed Work" shall
mean both Travel Dynamics Licensed Work and
APEX Licensed Work, but shall not include
any Prohibited Work.
1.03. "APEX Original Work" shall mean
materials and information (including, but
not limited to the Source Code) developed or
owned by APEX and used in the Product, as
well as any component of the Product derived
from such materials and information.
1.04. "Day" shall mean, unless otherwise
specified, a calendar day (as opposed to a
regular working day). "Days" shall similarly
mean calendar days.
1.05. "Intellectual Property" shall have
the meaning set forth in Paragraph 7.01(a).
1.06. "Product" shall mean any and all
software and/or supporting documentation
developed in whole or in part by APEX for
Travel Dynamics pursuant to this Agreement.
It is the intent of the parties that the
Product shall include, or be derived from,
Travel Dynamics Original Work, Travel
Dynamics Licensed Work, APEX Original Work
and APEX Licensed Work, but shall not
include any Prohibited Work.
1.07. "Prohibited Work" shall mean any
materials, including software, which cannot
be used by Travel Dynamics in connection
with the Product, without violating
Intellectual Property right(s) held by third
party(s).
1.08. "Source Code" means,
collectively, all available sub-programs,
routines, program files, data files, file
and data definitions and relationships, data
definition specifications, data models,
program and system logic, interfaces,
algorithms, program architecture, systems
designs, program structure, sequence and
organization, screen displays and report
layouts which are a part of the Product, in
human-readable or machine-readable form.
1.09. "Special Source Code" shall mean
that part of the Source Code relating to
APEX's proprietary token-based security
system, and any other part of the Source
Code which the parties shall mutually
designate from time to time in writing as
Special Source Code.
1.09. "Specifications" shall mean the
operational and/or functional description of
the Product as set forth in Exhibit A as the
same may be amended from time to time in a
writing executed by both parties.
II. LICENSE
2.01. APEX to Develop Product.
(a) APEX shall create a Product which
conforms to the Specifications set forth in
Exhibit A within the time periods,
milestones and/or program schedules set
forth in Exhibit B.
(b) The Product produced for Travel
Dynamics pursuant to this Agreement shall be
the property of APEX (except as otherwise
explicitly set forth herein) and not be
considered Work For Hire, but shall be
subject to the terms and provisions of this
Agreement.
(c) APEX shall provide Travel Dynamics
with progress reports every two weeks, which
shall indicate:
(i) Status of progress to current
date/milestone;
(ii) Short description of problems (if
any) in meeting such milestones;
(iii) Proposed recovery method to next
milestone, if needed;
(iv) Probability of meeting next
milestone.
The parties agree to conduct regular progress review
meetings at mutually agreeable times and locations to
ensure their mutual satisfaction with the performance
of the development and work.
2.02. Milestones and Delivery Schedules.
(a) On or before the deadline set forth
in Exhibit B, Travel Dynamics shall provide
all necessary Travel Dynamics Original Work
and Licensed Work to APEX for inclusion in
the Product.
(b) On or before the deadline set forth
in Exhibit B, APEX shall create a working
site that will allow the same functionality
(excluding database content) as the
Beechwood model site that was demonstrated
to Travel Dynamics and created by APEX
(excluding Instant Call with five different
call locations).
(c) On or before the deadline set forth
in Exhibit B hereto, APEX shall complete the
Product.
2.03. [RESERVED]
2.04. Additional Work.
(a) After completion and approval of the
Product, APEX shall make available on every
regular business day qualified personnel
reasonably approved by Travel Dynamics to
provide programming upgrade assistance to
Travel Dynamics and technical assistance to
Travel Dynamics and its distributors with
respect to the Product. Travel Dynamics
shall pay APEX at the rate of $120.00 per
man-hour for said programming upgrade
assistance and technical support. APEX
shall remove and replace any such personnel
upon the reasonable request of Travel Dynamics
(b) All other work requested by Travel
Dynamics not described herein, and performed
by APEX, shall be charged to Travel Dynamics
a rate of $120 per man-hour.
(c) APEX may adjust the hourly rates
charged for the work described in this
Section 2.04 after giving Travel Dynamics at
least sixty (60) days prior written notice
of the change. If requested by Travel
Dynamics after such an adjustment, APEX
shall provide Travel Dynamics a list of five
(5) publicly held Internet development
companies together with the hourly rates
each company charges for comparable
technical support if such rates can
reasonably be determined, and APEX agrees
that its adjusted rates will not exceed the
mean of such rates.
1.05. APEX to Host Product. APEX shall
host Travel Dynamics' Web site for the
Product, as well as the home page set-ups
within the Product. This shall include
keeping and maintaining the server(s) (which
will contain the Product) on APEX's premises
and linking said server(s) to the Internet
through APEX's pipeline. As part of the
hosting, APEX shall perform daily backups of
the Web site and hourly database backups.
Furthermore, APEX agrees to remove the daily
backups from its premises and to store said
backups in a reasonably secure location
storage facility. Each month after the date
of the completion of Phase 3 (as described
in Exhibit A), APEX shall be entitled to an
additional fee for performing such hosting
services and providing the hardware for the
Product (the "Hosting Fee"). Such monthly
Hosting Fee shall be determined as set forth
in this table:
NUMBER OF MEMBERS AS OF PER MEMBER HOSTING FEE(1)
THE 15TH DAY OF MONTH
0 to 5000 $8.33
5001 to 15,000 $7.50
15,001 to 30,000 $6.66
30,001 to 50,000 $5.83
50,000 and over $5.00
[FN]
1 THE PARTIES INTEND THE VOLUME DISCOUNT TO BE APPLIED AT THE MARGIN. FOR
EXAMPLE, FOR A MONTH IN WHICH THE NUMBER OF MEMBERS AS OF THE 15TH DAY
IS 10,000, THE HOSTING FEE WOULD BE CALCULATED
(5000 X $8.33) + (5000 X $7.50) = $79,150.
Provided, however, that the minimum monthly
Hosting Fee shall be Fifteen Thousand
Dollars ($15,000.00) for any month in which
the number of members on the fifteenth
(15th) day of the month is less than three
thousand (3000). The Hosting Fee shall be
paid to APEX no later than the end of each
month. Travel Dynamics may terminate APEX's
hosting services in accordance with the
terms of this Agreement; provided, however,
that if Travel Dynamics terminates APEX's
hosting services hereunder prior to six (6)
months after completion of Phase 3, Travel
Dynamics shall continue to pay the Hosting
Fee for the remainder of such six (6) month
period. In the event Travel Dynamics
terminates APEX's hosting services hereunder
after such six (6) month period, no further
Hosting fees shall accrue, other than any
fees which may accrue under Paragraph 2.12.
In the event Travel Dynamics terminates
APEX's hosting services hereunder, APEX
shall cooperate with Travel Dynamics in the
transfer of such hosting responsibilities to
the new host, and Travel Dynamics shall
reimburse APEX for APEX's reasonable
expenses relating to such transfer.
2.06. Domain Name and Security. Travel
Dynamics shall be responsible for paying for
and maintaining ownership of its domain name
and annual security certificates. Travel
Dynamics shall also pay APEX fifty-two
Dollars ($52.00) per security token.
2.07. Ownership by Parties.
(a) License of Product. APEX hereby
grants to Travel Dynamics a worldwide,
nonsublicensable (except that Travel
Dynamics may grant a sublicense as necessary
to permit an independent contractor to
modify the Product on behalf of Travel
Dynamics as permitted hereunder),
nontransferable (except in connection with
the permitted transfer or assignment of this
Agreement) irrevocable (except in the event
of non-payment by Travel Dynamics of sums
required to be paid by Travel Dynamics under
Paragraphs 2.05, 2.08, and 2.12 or other
material breach of this Agreement by Travel
Dynamics), royalty free (except for payments
required to be made by Travel Dynamics
hereunder) nonexclusive license to use and
modify the Product (except for Licensed Work
embodied in the Product). Travel Dynamics
agrees to provide a copy of the sublicense
agreement to APEX for approval prior to
making it available to their customers.
Travel Dynamics also agrees to gain APEX
approval for any changes to the sublicense
agreement after it goes in force and during
the tenure of this agreement.
(b) License of Travel Dynamics Original
Work. Travel Dynamics hereby grants to APEX
(a) a license to incorporate in the Product
all Travel Dynamics Original Work, and (b) a
sublicense to incorporate in the Product all
Travel Dynamics' Licensed Work. Travel
Dynamics Original Work as well as any ideas,
innovations or inventions created or
conceived utilizing, in whole or in part,
Travel Dynamics Original Work, shall be
owned solely by Travel Dynamics Further,
APEX shall consider Travel Dynamics Original
Work to be confidential, and shall have no
right to utilize, directly or indirectly,
Travel Dynamics Original Work in any other
product or services. These limitations
imposed upon APEX in this Paragraph 2.07 (b)
shall survive any termination of this
Agreement.
(c) Ownership of APEX Original Work.
Ownership of APEX Original Work shall be
retained by APEX.
(d) Use of Licensed Work. APEX shall not
incorporate any Licensed Work in the Product
unless Travel Dynamics has been granted a
license to utilize the Licensed Work on
terms and conditions acceptable to Travel
Dynamics
2.08. Payment. Provided that APEX is not
in material breach of this Agreement, Travel
Dynamics shall make payment in accordance
with Exhibit B in U.S. currency on the dates
set forth on Exhibit B. Past due amounts
shall accrue interest at a rate equal to the
lesser of one and one-half percent (1 1/2%)
per month from the date due, or the maximum
late charge permitted by law.
2.09. Term. The term of this Agreement
shall commence on the date hereof and shall
continue, unless sooner terminated, until
the five (5) year anniversary of said date
(the "Term"). After the expiration of the
Term, this Agreement shall be automatically
renewed for successive one (1) year renewal
term(s), unless either party notifies the
other party at least thirty (30) days prior
to the end of the term of its intention not
to renew.
2. 10. Termination. In the event either
party is in material breach of this
Agreement, including but not limited to
being delinquent in meeting the agreed upon
milestones, delivery or payment schedules
set forth in Exhibits A and B (subject to
Section 2.11, below), the non-breaching
party may, by notice to the breaching party,
terminate this Agreement and seek any remedy
available pursuant to this Agreement.
Notwithstanding any other provision hereof,
Travel Dynamics may terminate APEX's
services hereunder, for any reason, upon or
after the sixth (6th) month anniversary of
the completion of Phase 3 and after thirty
(30) days written notice to APEX. Upon such
termination, the work performed to date
shall be licensed to Travel Dynamics
pursuant to the terms of Paragraph 2.07(a)
and (b) and the Source Code (other than the
Special Source Code) for such completed work
shall be delivered to Travel Dynamics.
2.11. Time of the Essence. The parties
understand and agree that time is of the
essence. If during the development of the
Product pursuant to this Agreement, APEX is
unable to meet the agreed-upon Specification
by the date set forth herein in all material
respects, for reasons other than a defect or
defects in Travel Dynamics provided hardware
or software or other breach by Travel
Dynamics of any term of this Agreement, and
if fifteen (15) days after receiving written
notice of its inability to meet such
Specification APEX has not yet met such
Specification, then Travel Dynamics may:
(a) Extend the correction period by
any amount of time as may be determined
by Travel Dynamics;
(b) Approve the delivered Product
with a mutually agreeable reduction in
the contract price;
(c) Elect to complete or have
completed (through third parties which
have executed confidentiality agreements
imposing substantially similar
obligations as are imposed upon Travel
Dynamics and APEX pursuant to this
Agreement) the nonconforming Product, and
APEX shall give Travel Dynamics all
reasonable cooperation with respect
thereto at APEX's expense, including but
not limited to (i) granting Travel
Dynamics a world-wide, non-exclusive
license to use APEX Original Work
reasonably necessary for Travel Dynamics
or such third party to complete the
nonconforming Product and (ii) obtaining,
or assisting Travel Dynamics in
obtaining, any licenses from third
parties necessary for the completion of
the non-conforming Product. Thereafter,
Travel Dynamics shall be entitled to
deduct from amounts remaining due APEX
pursuant to this Agreement, any amounts
actually expended pursuant to this
Subsection; or
(d) Terminate this
Agreement for cause.
2.12 Special Source Code.
Notwithstanding any agreement to the
contrary contained in this Agreement, in the
event of termination of this Agreement or
the termination of APEX's hosting services
under Paragraph 2.05, APEX shall have no
obligation to deliver the Special Source
Code to Travel Dynamics. However, in the
event Travel Dynamics is using security
tokens in conjunction with the Product as of
the date that APEX's hosting services are
terminated, APEX shall continue to host a
security gateway to Travel Dynamics' new
hosting location, enabling the continued use
of the security tokens, at an annual fee of
One Thousand Dollars ($1000).
III. REPRESENTATIONS AND WARRANTIES
3.01. Express Representations and
Warranties of APEX. APEX represents and
warrants to Travel Dynamics that:
(a) it has good and marketable title,
or a valid license, to all components of
the Product and that the Product shall be
free and clear of all liens,
encumbrances, security interests or other
claims (other than licenses of Licensed
Work).
(b) APEX possesses the financial and
technical ability to perform its
obligations under the terms of this
Agreement.
(c) No APEX Original Work or APEX
Licensed Work incorporated in the Product
infringes upon any Intellectual Property
right of any third party.
(d) APEX represents and warrants that
the Product will perform in substantial
accordance with the Specifications and
any additional criteria agreed to in
writing by the parties, and shall not
contain any material defect in
operational performance or any material
programming defect. APEX agrees to
promptly notify Travel Dynamics upon
learning of any such material defect in
operational performance or any material
programming defect.
(e) APEX represents and warrants that
it shall perform the services and provide
each and every component of the Product
in a competent and workmanlike manner.
(f) APEX shall "pass through" to
Travel Dynamics any equipment and third
party software end-user warranties and
indemnities which are by their terms
assignable to Travel Dynamics. To the
extent APEX is not permitted to so pass
through, APEX shall enforce such
warranties and indemnities on behalf of
Travel Dynamics.
(g) APEX represents and warrants
that, as of the date of installation, the
Product does not contain, and APEX will
exercise commercially reasonable efforts
to ensure that the Product will not
receive from any APEX data transmission
via modem or other APEX medium, any
Disabling Code including, but not limited
to, any limitations that triggered by:
(a) software being used or copied a
certain number of times, or after the
lapse of a certain period of time; (b)
software being installed on or moved to a
central processing unit or system that
has a serial number, model number or
other identification different from the
central processing unit or system on
which the Product was originally
installed; or (c) the occurrence or lapse
of any similar triggering factor or
event. In the event a Disabling Code is
identified by Travel Dynamics or APEX in
the Product, APEX shall, at APEX's sole
cost: (w) take all steps necessary to
test a new copy of any affected software
for the presence of such Disabling Code;
(x) furnish to Travel Dynamics a new copy
of any affected software without the
presence of such Disabling Code; (y)
install and implement such new copy of
any affected software; and (z) assist
Travel Dynamics in restoring any and all
data or programming lost by Travel
Dynamics as a result of such Disabling
Code. "Disabling Code(s)" means any
virus, worm, trap door, back door, timer,
clock, counter, Trojan horse or other
limiting routine, instruction or design
that would cause the Product not to
perform in substantial accordance with
the Specifications.
(h) APEX represents and warrants that
the Product shall, at all times, achieve
and maintain an uptime availability
average of 99.95% during each calendar
month measured at the APEX/internet
interface, and not including scheduled
downtime for maintenance and upgrades
("Uptime Standard"). For the purposes of
this Agreement, if the Product falls
below the Uptime Standard in any given
month, Travel Dynamics shall notify APEX.
APEX will have fifteen (15) days
following such notice to correct the
situation. If the Product falls below
the Uptime Standard in the following
month, Travel Dynamics shall so notify
APEX and APEX shall credit Travel
Dynamics a ratable portion of such
month's Hosting Fee.
3.02. Disclaimer. OTHER THAN THE EXPRESS
WARRANTY SET FORTH IN PARAGRAPH 3.01, APEX
MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PRODUCT OR THE SERVICES
PROVIDED BY APEX HEREUNDER. APEX HEREBY
DISCLAIMS ANY AND ALL SUCH OTHER WARRANTIES,
INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
3.03. Warranty Obligations. After
delivery of the Product to Travel Dynamics,
upon notice from Travel Dynamics that the
Product is in violation of the warranty
contained in subparagraphs 3.01(d), (g) or
(h), APEX shall, without additional charge
to Travel Dynamics, bring the Product into
compliance with the Specifications, or
repair such material programming defect or
defect in operational performance, within
five (5) days from the time Travel Dynamics
notifies APEX of such noncompliance. Upon
notice to APEX that the Product is in
violation of the warranties contained in
subparagraphs 3.01(a), (c) or (f), APEX
shall, in its sole discretion, either (i)
modify the Product so that the Product is no
longer in violation of such representation
or warranty, (ii) obtain at APEX's expense a
license, from any third party the rights of
which the Product is alleged to have
violated, permitting the continued use of
the Product by Travel Dynamics, or (iii)
refund to Travel Dynamics the fees paid by
Travel Dynamics hereunder with respect to
that part of the Product which infringes
such third party right, or with respect to
all of the Product if the Product as a whole
infringes such third party right.
3.04. Termination Effect. Upon
termination or expiration of this Agreement
for any reason, each party shall immediately
destroy or return to the other all materials
containing proprietary, confidential or
private data and all copies thereof if so
requested by the other party.
3.05. Express Representations and
Warranties of Travel Dynamics. Travel
Dynamics represents and warrants to APEX that:
(a) Travel Dynamics has good and
marketable title to all Travel Dynamics
Original Work.
(b) Travel Dynamics has the right to
sublicense to APEX all Travel Dynamics
Licensed Work provided by Travel Dynamics
to APEX hereunder.
(c) No Travel Dynamics Original Work
provided to APEX hereunder infringes upon
any Intellectual Property right of any
third party.
IV. INDEPENDENT PRODUCT DEVELOPMENT AND RELATED RIGHTS
a. Except as otherwise provided
herein, this Agreement does not
and shall not be construed to
limit the rights of either party
to independently develop, market,
sell, lease, service or
manufacture competing products
provided that no proprietary
knowledge or know-how of the
other party is used in such
products. The foregoing
notwithstanding, Travel Dynamics
shall not reverse engineer any
portion of the Product.
V. HEADINGS
5.01. The headings and titles of the
Articles and Sections of this Agreement are
for convenience only and shall not affect
the construction or interpretation of any
provision.
V1. NOTICES
6.01. Any notice which may be required
to be given under this Agreement shall be in
writing and shall be sent either by
facsimile actually received by the other
party, or by a nationally recognized
overnight delivery service with proof of
delivery. To the extent this Agreement
requires notice to be given to APEX or
Travel Dynamics, such notices shall be
deemed to have been duly given and delivered
upon the receipt of such fax or one (1) day
after being sent by such overnight delivery
service, to the parties at the following
locations, or such other addresses as the
parties may designate from time to time:
IF TO APEX: IF TO TRAVEL DYNAMICS
Xx. Xxxxxx X. Xxxxx Xx. Xxxxx Xxxxxxx
APEX Interactive Travel Dynamics
00000 Xxxxxxxxxx Xxxxx 0000 Xxxxx Xxxxx Xxxxxx Xxxx,
Xxxxx 000 Penthouse suite
Wauwatosa, Wisconsin 53226 Xxxxxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
VII. INDEMNIFICATION
7.01. Indemnification.
(a) APEX Interactive. APEX shall indemnify,
defend and hold Travel Dynamics harmless
from, and pay any judgment for, any suit,
claim, fine, demand, penalty or proceeding
(hereinafter "Travel Dynamics Claim")
against Travel Dynamics alleging that any
portion of the Product (other than any
portion of the Product consisting of
containing, or derived from any Travel
Dynamics Original Work or any Travel
Dynamics Licensed Work) infringes any
patents, utility models, copyrights,
trademarks, trade secrets or any other
intellectual property rights of a third
party ("Intellectual Property"), provided
that APEX is promptly notified in writing of
any Travel Dynamics Claim, given all
reasonable assistance required, and
permitted to direct the defense of such
Claim. Travel Dynamics may at its own
expense retain independent counsel to
represent it with respect to any Claim. APEX
shall have no liability for settlements or
costs incurred without its consent.
(b) Travel Dynamics Indemnity. Travel
Dynamics shall indemnify, defend and hold
APEX harmless from, and pay any judgment
for, any suit, claim, fine, demand, penalty
or proceeding (hereafter "Claim") against
APEX alleging that the Travel Dynamics
Original Work or Travel Dynamics Licensed
Work contained in the Product or that Travel
Dynamics modifications to the Product
infringes any Intellectual Property of a
third party, provided that Travel Dynamics
is promptly notified of any Claim, given all
reasonable assistance required, and
permitted to direct the defense of such
Claim. APEX may at its own expense retain
independent counsel to represent it with
respect to any Claim. Travel Dynamics shall
have no liability for settlement or costs
incurred without its consent.
7.02. Injunction. In the event that
Travel Dynamics' use or marketing of the
Product is enjoined due to an alleged
infraction by any of APEX's Original Work
contained in the Product of any Intellectual
Property of a third party, APEX's sole
obligation shall be to, at its option and
expense, (a) license to Travel Dynamics a
fully equivalent component of APEX's
Original Work not subject to such
injunction, (b) modify APEX's Original Work
so that it is no longer subject to such
injunction, (c) obtain for Travel Dynamics
the right to continue using the enjoined
Product, or (d) take back the enjoined
Product from Travel Dynamics and refund to
Travel Dynamics the amounts paid by Travel
Dynamics hereunder.
VIII. ASSIGNMENT
8.01. Assignment by Travel Dynamics.
Travel Dynamics shall not Transfer this
Agreement, except with the prior written
consent of APEX, which consent shall not be
unreasonably withheld;
8.02. Assignment by APEX. APEX shall not
assign or otherwise transfer this Agreement
(other than the right to receive payments
hereunder), except with the prior written
consent of Travel Dynamics, which consent
shall not be unreasonably withheld.
IX. SEVERABILITY
9.01. If any provision of this Agreement
is held invalid by any law, rule, order or
regulation of any government, or by the
final determination of a court of last
resort or arbitrator, such invalidity shall
not affect (a) the other provisions of this
Agreement, (b) the application of such
provision to any other circumstance other
than that with respect to which this
Agreement was found to be unenforceable, or
(c) the validity or enforceability of this
Agreement as a whole.
X. SURVIVAL
10.01. Unless this Agreement expressly
provides otherwise or by its nature a
provision cannot survive this Agreement, the
provisions of this Agreement shall survive
the expiration or any termination of this
Agreement.
XI. CONFIDENTIAL AND PROPRIETARY INFORMATION
11.01. Non-Disclosure of Proprietary
Information. All information of a
confidential and/or proprietary nature
furnished or disclosed by either party shall
remain the property of the disclosing party.
The recipient shall take all reasonable
steps to prevent the disclosure of such
information, and shall allow the disclosure
of such information within its own
organization only on a need-to-know basis.
If the recipient reproduces any part of such
information for permitted use within its own
organization, the recipient shall indicate
the disclosing party's proprietary interest
on all such reproductions. If any such
information is transferred to Travel
Dynamics' or APEX's vendors, suppliers or
customers, such information and such
transfer must be authorized in writing by
the disclosing party. The foregoing
notwithstanding, in no event shall Travel
Dynamics or APEX disclose or cause to be
disclosed, directly or indirectly, in whole
or in part, any confidential information of
the other to any competitor of the other.
Such obligation to keep information
confidential shall survive termination or
expiration of this Agreement.
11.02. Exception to Non-Disclosure.
Neither party hereto shall be bound by the
confidentiality obligations of Section 11.01
hereof if.:
(a) The information was in the public
domain at the time of disclosure;
(b) The information becomes publicly
available through no fault of the recipient;
(c) The information was in the
recipient's possession, free of any
obligation of confidence, at the time of
receipt of the information;
(d) The information was independently
developed by employees or agents of the
recipient, without reverse engineering
barred by this Agreement or applicable
law, and without reference to any of the
information disclosed in confidence; or
(e) The recipient is obligated to
produce the information under court or
government action after all reasonable
appeals have been exhausted.
11.03 No use of Confidential
Information. Travel Dynamics shall own the
content of its database (including, without
limitation, the commission structure,
customers, clients, vendors, independent
reps and distributors), and APEX shall have
no rights in or to any information contained
in Travel Dynamics' database, and APEX shall
not sell, use, market, publicize or
otherwise exploit (commercially or
otherwise) any information contain in Travel
Dynamics' database, including without
limitation, e-mailing or otherwise
contacting any of representatives,
distributors or vendors.
XII. ARBITRATION
12.01 Any dispute arising out of or
relating to this Agreement shall be settled
by binding arbitration, conducted on a
confidential basis, under the then current
Commercial Arbitration Rules of the American
Arbitration Association (the "Association")
strictly in accordance with the terms of
this Agreement and the substantive law of
the State of Wisconsin. The arbitration
shall be held at a mutually agreeable
location in Waukesha, Wisconsin and
conducted by one (1) arbitrator chosen from
a list of attorneys or judges who are
members of the Association's commercial
arbitration panel and are knowledgeable
about the software and electronic commerce
industries. If the parties cannot within
thirty (30) days after the expiration of
such 60-day period, agree on the selection
of the arbitrator, the arbitrator will be
chosen pursuant to the Commercial
Arbitration Rules of the Association. The
costs of the arbitration, including the fees
to be paid to the arbitrator, shall be
shared equally by the parties to the
dispute. The judgment upon the award
rendered by the arbitrator may be entered
and enforced in any court of competent
jurisdiction. Neither party shall be
precluded hereby from seeking equitable
remedies in any court having jurisdiction
hereof including, but not limited to,
temporary restraining orders and preliminary
injunctions, to protect its rights and
interest, but such shall not be sought as a
means to avoid or stay arbitration. The
arbitrator shall not award any
consequential, incidental punitive or
exemplary damages. The parties acknowledge
that they have voluntarily agreed to
arbitrate their disputes in accordance with
the foregoing and each party hereby
irrevocably waives any damages in excess of
compensatory damages.
XIII. WAIVER
13.01 Failure or delay of either party
to exercise any right or remedy under this
Agreement or to require strict performance
by the other party of any provision of this
Agreement shall not be construed to be a
waiver of any such right or remedy or any
other right or remedy hereunder.
XIV. FORCE MAJEURE
14.01 Subject to a party's right to
terminate this Agreement under Section 2.09,
neither APEX nor Travel Dynamics shall be
liable to the other for its failure to
perform any of its obligations during any
period in which such performance is delayed
by fires, insurrection, acts of God or of
the public enemy, or compliance with any
law, regulation or other governmental order.
XV. FURTHER ASSURANCES
15.01 The parties agree to execute all
instruments and documents of further
assurance and will do any and all such acts
as may be reasonably required to carry out
their obligations and to consummate the
transactions contemplated by this Agreement.
XVI. GOVERNING LAW
16.01 This Agreement shall be governed
by and construed in all respects in
accordance with the laws of the State of
Wisconsin. Any action brought concerning
this Agreement or the relationship of the
parties shall be commenced in Wisconsin
circuit court located in Waukesha County,
Wisconsin or in the Federal District Court
for the Eastern District of Wisconsin.
XVII. REMEDIES CUMULATIVE
17.01 Except as otherwise set forth
herein, any rights or cancellation or
termination, or remedies prescribed in this
Agreement are cumulative and are not
intended to be exclusive of any other remedy
not inconsistent herewith, of which the
injured party may be entitled to herein or
at a law or in equity, including, but not
limited to, the remedy of specific performance.
XVIII. CONDITIONS PRECEDENT/THIRD PARTY LICENSES
17.01 [reserved]
17.02 Warrant and Registration Rights
Agreement. It shall be a condition
precedent to APEX's obligations hereunder
that Travel Dynamics shall have executed and
delivered to APEX (a) a Warrant to purchase
certain shares of the common stock of Travel
Dynamics, and (b) a Registration Rights
Agreement with respect to the shares subject
to the Warrant, each in a form acceptable to
APEX.
18.03 License from Third Parties. In
developing the Product for Travel Dynamics,
APEX may be required to obtain licenses from
third party licensors or may be subject to
third party encumbrances other than
prerequisite licenses (e.g. license
limitations or payment to third parties).
All such currently known
requirements/encumbrances will be
communicated by APEX promptly to Travel
Dynamics but in any event prior to final
delivery of the Product to Travel Dynamics
The parties will attempt to minimize, where
possible, the necessity for such
prerequisite licenses. APEX understands and
agrees that Travel Dynamics shall not be
required to accept any Product which
requires Travel Dynamics to enter into
license or sub-license arrangement on terms
which are not acceptable to Travel Dynamics
XIX. INTEGRATION
19.01 This Agreement, including all
exhibits (all of which are incorporated into
this Agreement), constitutes and contains
the entire agreement and understanding
concerning the subject matter between the
parties, sets forth all inducements made by
any party to any other party with respect to
any of the subject matter, and supersedes
and replaces all prior and contemporaneous
negotiations, proposed agreements or
agreements, whether written or oral. Each of
the parties acknowledges to each of the
other parties that no other party nor any
agent or attorney of any other party has
made any promise, representation or warranty
whatsoever, express or implied, written or
oral, not contained herein concerning the
subject matter hereof to induce it to
execute this Agreement, and each of the
parties acknowledges that it has not
executed this Agreement in reliance or any
promise, representation or warranty not
contained herein.
XX. PRE-EXISTING TECHNOLOGY AND INTELLECTUAL PROPERTY
20.01 Except as explicitly set forth
herein, nothing herein shall be deemed to
transfer any ownership of any Travel
Dynamics Original Work or APEX Original
Work, or other things tangible or
intangible, created by either party or
acquired by a party from a third party.
XXI. RELATIONSHIP OF THE PARTIES
21.01 APEX is an Independent Contractor.
(a) It is the intent of the parties that
during the term of this Agreement APEX shall
be an independent contractor, and nothing
set forth herein shall be deemed or
construed to render the parties joint
ventures, partners or employer and employee.
Neither party is authorized to make any
commitment or representation on the other's
behalf.
(b) During the term of this Agreement,
if the term "partnership," "partner" or
"development partner" or the like is used to
describe the parties' relationship, Travel
Dynamics and APEX agree to make it clear to
third parties that these terms refer only to
the spirit of cooperation between them and
neither describe, nor expressly or impliedly
create, the legal status of partners or
joint ventures.
(c) APEX may hire employees, associates,
consultants or other outside agents
("Agents") to assist with the performance of
APEX's responsibilities under this
Agreement. All such Agents shall be subject
to the confidentiality term of this Agreement.
(d) Travel Dynamics will not deduct from
APEX's fees any amount for taxes, insurance,
bonds or payments of any kinds related to an
employer-employee relationship unless Travel
Dynamics is held responsible for such items.
APEX understands and agrees that it is
responsible for the full payment of wages
and other compensation of any and all Agents
APEX may choose to engage, and for the
payment of any federal, state and local
income taxes, social security taxes, workers
compensation and other insurance required by
law.
(e) APEX may determine the method,
details and means for performing services
called for in this Agreement, subject to the
Specifications, timetables and milestones
supplied by Travel Dynamics.
(f) APEX maintains independent offices
in which it performs a majority of its work.
Work at Travel Dynamics' location will be
done only as necessary to facilitate
interaction with Travel Dynamics' equipment
or other personnel.
(g) APEX is free to set its own hours
for performing the services called for in
this Agreement, and is free to choose and
schedule work for other customers without
regard for this Agreement, subject to the
completion schedule, time frames and
milestones set forth Exhibits "A" and "B"
attached hereto.
XXII. ATTORNEYS' FEES
22.01 The prevailing party in any action
or proceeding (including, without
limitation, arbitration) between Travel
Dynamics and APEX arising out of or related
to this Agreement shall be entitled to
recover from the other party all of its
reasonable attorneys' fees and costs in
connection with such action, including any
arbitration or appeal of such action.
IN WITNESS WHEREOF, authorized representatives of the
parties have affixed their signatures as the Effective
Date.
Dated: ____________, 2000 APEX
APEX Interactive, Inc.
BY:
Xxxxxx X. Xxxxx, President
TRAVEL DYNAMICS
Travel Dynamics
BY:
Xxxxx Xxxxxxx, CEO
EXHIBIT A
PRODUCT SPECIFICATIONS
The parties hereto contemplate that delivery of the
Product shall occur in four (4) phases, each of which
are described below. Travel Dynamics shall have the
right, but not the obligation, to proceed with the next
phase of development upon completion by APEX of the
work required to achieve the Product Specifications for
the then-current phase of development. The existence of
a writing executed by both parties shall be considered
conclusive proof of the parties' agreement to proceed
with the subsequent phase on the terms and conditions
set forth in the writing. This phase shall be known as
"Phase 5" and is not a part of this Agreement.
Phase 1. Phase 1 shall consist of the
design meeting and follow-up to define the
functionality changes, aesthetic changes,
and development of the costs associated with
Phase 2 through Phase 4 of the development
of the Product. Phase 1 shall include, but
shall not be limited to:
a. Delivery by Travel Dynamics of proposed
functionality changes to the Specifications;
b. Delivery by Travel Dynamics of proposed
changes to the Specifications;
c. Delivery by APEX of a budget of projected
time/cost to complete Product ("Projected Cost");
d. Delivery of Travel Dynamics of the graphic
design suggestions and logo to be used in the
Product;
e. APEX to begin programming on the
compensation plan and construction of the
"Back office" of the product;
f. Execution of the signed Agreement.
Phase 2. Phase 2 shall consist of the
implementation and incorporation by APEX of
the functionality and aesthetic changes, the
database content (including, without
limitation, Travel Dynamics' commission
compensation structure), and Instant Call
into the working Product. Phase 2 will also
call for working demonstration of the
Product that will be complete with; A
working sample Travel Dynamics Home Page
with three sections, (1) Travel Dynamics
Home page with future functionality
indicated by non working navigation bars,
(2) Travel Dynamics Mall Home page with
Travel Dynamics Travel Options page,
Entertainment Options page, Shopping Options
page, (3) Associate "Back Office" page with
security options. This phase shall also
incorporate the automated enrollment
sections for the purchase of the TruPack
$495.00 that generates an online web page
for the Associate with options to select
from six (6) different home page options.
The development of a complete and fully
functioning Product with testing shall not
be the goal of this phase. It is agreed
that this phase will be the "roll-out" or
"introduction" phase for Travel Dynamic's
direct marketing base. Many of the
functions in this specification simply can
not be totally completed by the proposed
"roll out" date and that much of the success
of this phase is contingent on Travel
Dynamics delivering graphic design concepts
and approving these designs prior to the
"roll out" date.
Xxxxx 0. Xxxxx 3 shall consist of the
implementation by APEX of the functionality
and aesthetic changes, the database content
(including, without limitation, Travel
Dynamics' commission compensation structure
and reports into the working Product),
setting up the Instant Call program for
customer support, the development of a
complete and fully functioning Product per
the specifications included hereunder.
Phase 3 shall include but not be limited to
the delivery of the final Product, as well
as revisions to the Product, if necessary.
Phase 4. Phase 4 shall consist of hosting
services and technical support following
DELIVERY of the Product to Travel Dynamics.
Phase 4 shall include:
a. Technical support for Travel Dynamics and
its distributors every regular business day at
a rate of $120.00 per hour, subject to
adjustment pursuant to Section 2.06;
b. Hosting Travel Dynamics' server at APEX's
premises, including providing Internet access
for the server, hosting all the home page
set-ups within the Product, making daily site
backups and hourly database backups, and
removing the backups from APEX's premises and
storing them long term in a qualified storage
facility;
C . On-going product support and new feature
development for the Product.
The following list of specifications shall be
used for the creation of the Product.
Product Specifications:
ASSOCIATE SITE
Travel Dynamics' Independent Associate site will have
the same functionality as found in the company site as
outlined below with the exception of the "teaser page"
and Corporate history. However, each Associate's page
will have a link to the Corporate site. Each Associate
will have 6 templates to choose from and the ability
for limited customization for their individual site.
The Associate site will utilize the same buttons for
information as follows.
CORPORATE SITE
Travel Dynamics Company Home Page to include:
A collage of Pictures depicting Travel Dynamics Company
with Travel Dynamics' marketing questions. Travel
Dynamics' Company site will include an area to enter a
zip code. The customer will be transferred to the
qualified associate site related to the zip code that
was entered. The option for browser download should
also be available on the homepage with instructions for
users. There will be a "Teaser page" that will be
hosted on a separate URL that will link to the
Corporate home page. This will be a straight HTML
questionnaire that when completed will send the visitor
to the Corporate Home page.
Several Title Buttons to choose from that link the
visitor to the prospective pages:
Go Shopping (Information about shopping in the
Travel Dynamics Mail
How to shop tutorial Formation on how to shop
and what to do inside the mall
Enter the Mall (Takes customer directly into
the Mall)
About Travel Dynamics' company (Information, on
the corporation, stock and investor information
and program outline and Links to subsections):
Vision and Mission (Information and Graphics)
Management Formation, Pictures, and Graphics,)
Strategic Alliances (Information, Pictures and
Graphics)
Product Line (formation, Graphics and Links to
subsections)
administrative section of the distributor log
in below)
e-commerce -Information regarding purchasing
and discount products, Graphics and Links to
subsections
Go Shopping in the Travel Dynamics Mall
(Information, Graphics, Links to subsections
and all product purchases from each
prospective vendor will be tracked and
linked to the portal site in which the
distributor entered, the commission tracking
will be a component of each mall owner or
Direct sales persons commission report as
outlined in the administrative section of
the distributor log in below)
How to shop tutorial
The Travel Dynamics. Mall will be branded with
the Travel Dynamics logos and image and contain
all components and functionality of the Beechwood
Research, LLC demonstration site called "The
I-Mall" and will include (but not limited to) the
following:
All current and future vendors stores
(Travel Dynamics will have first right of
refusal.)
Navigation features to browse by
category or floor.
Newbie University on all sites.
Global Product search w/splash page for
each store site category
Instant Call Back feature to be routed
to the Travel Dynamics Customer Service
Department with up to five (5) different
ring locations per Travel Dynamics choice.
All link Lock Vendor Features, Gobbets
updating each vendor store, etc.
E-mail Links to tech support (Apex), to
Customer Service and to Representative
Information. (Travel Dynamics)
Bonus Bucks (Travel Bucks) Program and
Lifestyles Store with all products
Promotional Giveaway lead generation
Program
Auction/Bid Product program
The Travel Dynamics Store to include all
current product offerings, new Logo and
conference schedule, all personal
development and sales aids and training
programs.
Business Opportunity (Information, Graphics,
Flash Presentation and Links to subsections)
Flash Presentation (presenting business
opportunity)
Mission (Information and Graphics)
Market and Strategy (Information and
Graphics)
Business Overview (Power point
presentation with multiple slides, Power
Point Down Load Capabilities)
Compensation Plan (Information and
Graphics)
Training and Support (Information,
Graphics and link to the IME event sites)
Become a Distributor and Web Mall Owner
(Information, Graphics and Links to
subsections):
Independent representative
application agreement with online
processing of credit card information.
Upon credit card approval a
distributor ID# is automatically
assigned, the new distributor is
automatically placed in the database
genealogy, the company is e-mailed
the new distributor information, the
up-line is e-mailed new distributor
contact information, and the
distribution center is automatically
notified to send a marketing director
kit.
Web Mall owner application
agreement with online processing of
credit card information.
Upon credit card approval the mall
site is automatically assigned the
same distributor ID# and begins an
automatic URL to be searched and
assigned. Shipping information to be
automatically sent to distribution
facility for Web owner welcome kit
and security token to be sent.
6 unique home page designs will be
available for the new web director to
Choose and be assigned with options
to insert pictures and graphics.
Frequently Asked Questions Section
(information and graphics)
ASSOCIATES HOME PAGE
The associate home page shall consist of six different
designs (Looks and feels) that can be selected and
changed at the Associates discretion. There shall be an
option to import customized text and photos that can be
selected and modified by the Associate from a secure
page. There shall be a method for navigating between
four (4) main sections of the Associates site; Travel,
Entertainment, the Shopping mall and an Opportunity
section. The four sections shall include:
Travel
Hotel bookings via a link to a TruDynamic's
partner site
Condo Rentals via a link to a TruDynamic's partner
site
Group Adventures via a link to a TruDynamic's
partner site
Airline via a link to a TruDynamic partners site
Car Rental, Train and Bus via a link to a
TruDynamic's partner's site.
These will not be booking sites but informational
only sites and will not constitute special
programming for auditing commissions. There will
also be a City Search link that will allow an
Associate to locate service providers in a given
city where travel discounts may be used. There
will also be the facility for a site visitor to
purchase the travel package that will be managed
through the current commission program and show up
in the proper direct sales members register.
Entertainment
This area shall be used for the linking to Travel
Dynamics partners sites to check on discounted
dining card members, airline, golf and ski
discounts. It shall not be a booking engine but
will include the ability to purchase magazines
through the Travel Dynamics site.
Shopping
The shopping area will consist of a Travel
Dynamics branded mall that will contain name brand
stores as well as a Travel Dynamics outlet for
health products or other items. The addition of
this health store, or any future stores, shall not
be part of the original specifications but is
listed here as an acknowledgement of the desire of
Travel Dynamics for future store additions to the
shopping site and the need to program in a method
for expansion in the data base. The shopping
area will allow the visitor to purchase items,
goods and services, including long distance
telephone service online. All commissions from
this section shall show up on the Associates
reports. Commissions from stores from within the
mall will populate the Associates reports as soon
as they are received from the stores and on a
real-time basis from any store that is hosted on
the "closed mall" or resident on the APEX servers.
Each shopping site shall have Instant call feature
that will create an interactive customer service
feature between the visitor and the Travel
Dynamics customer service group.
Opportunity
Each Associate site shall have the ability to
present a Power Point or Flash presentation on the
business opportunity (Travel Dynamics shall
provide the content for this presentation). There
will be a explanation of the compensation plan in
this area as well as a copy of Travel Dynamics
policies and Procedures. Content can include
testimonies from current Associates as chosen by
Travel Dynamics for their opportunity
presentation. There will be a facility for
allowing Travel Dynamics to change these
testimonies and import pictures from gig, tif or
Jpeg files. As new services are added to the
Travel Dynamics program this area of the site will
have the ability to allow Travel Dynamics
personnel to update content.
DISTRIBUTOR LOG
In Bar code security is provided to ensure optimal security for web
director access, to include the security token feature. Once Associate
is inside, the Web owner will be placed into the Travel Dynamics "I-
Office" Home Page to include Information, Graphics, Capability to run
audio/video streams, Option to download audio/video player with user
instructions, Button Links to subsections: Travel Dynamics will
provide the video and content for such broadcasting as well as the
following features:
WEB ADMINISTRATIVE SECTION
Personal Sales Volume "Real Time" Reports for
either Travel Dynamics Products and/or stores
other than Travel Dynamics (providing the
purchases are made from current reporting APEX
hosted stores). All other stores sales data shall
populate these reports when received from the stores.
Group Sales Volume Reports for either Travel
Dynamics Products and/or stores other than Travel
Dynamics for Registered groups as well as downline
sales in an Associates group.
Drill Down Purchasing capabilities to view
customer transactions and buying habits from all
stores that do not filter customer data under a
privacy policy or agreement with their customers.
In such cases drill down will show the amount of
the purchase and from what store it came from.
Query capabilities to include (within downline
only, not company wide)
New Associates signups
Qualified Associates or Distributors
within a given group
Non-Qualified Associates or Distributors
in a given group
Commissions Due at variable time frames
Distributor lists by state, title and
qualification
E-mail Distribution Lists Capabilities (within
downline only, not company wide)
E-mail Qualified Associates or
Distributors in your group
E-mail Non-Qualified Distributors
E-mail Down-line By Title or Rank
E-mail distributors by state
E-mail shoppers club members
Lead Follow Up/Generation Program Web owner
notification of the address of all of their mall
visitors who fill out a profile for e-mail follow
up. There shall be a lead follow-up training
program on this part of the site.
TRAVEL DYNAMICS COMPANY FORMS AND TRAINING REPORTS
(All information for web owner downloading purposes)
Independent Associates Applications/Agreements
> Web owners Applications/Agreements > Product
Order Forms > Training Reports or programs >
Positive Press > Leadership Lists );~ Business
Opportunity Outlines/Conference Call Outlines >
Action Plan For Success Advanced Training Reports
> Sales aid order forms.
Complete Company Calendar/Event Registration
and Forms
Travel Dynamics. Business Sales Aid section to
include information, pictures, graphics, sales aid
purchase options that shopping cart the sales
aides and send secure credit card and order
information to the distribution center. Sales
aides are to be included in the Travel Dynamics
store.
Go Shopping in the Travel Dynamics Mall
(Information, Graphics, Links to subsections and
all product purchases from each prospective vendor
will be tracked and linked to the portal site in
which the distributor entered, the commission
tracking will be a component of each mall owner or
web owner's commission report as outlined in the
administrative section of the distributor log-in
below)
The Travel Dynamics Mall will be branded
with the Travel Dynamics logos and image and
contain all components and functionality of
the Beechwood Research, LLC "I-Mall" to
include (but not limited to) the following:
All current and future vendors
stores (Travel Dynamics will have
first right of refusal)
Newbie University on all sites
Global Product search w/ splash
page for each store site category
Instant Call Back feature to be
routed to the Travel Dynamics
Customer Service
All link Lock Vendor Features, as
well as robot updating each vendor
store, etc.
E-mail Links to tech support (Apex)
Customer Service and Representative
Information. (Travel Dynamics)
Bonus Bucks or "Travel Bucks"
Program that allows for purchaser to
earn products from the Lifestyles
Store that will be in the "closed mall."
Promotional Giveaway lead
generation Program which will be
defined by Travel Dynamics but follow
the example in the Beechwood
Research, LLC "I-Mall" example.
Auction/Bid Product program feature.
The Travel Dynamics mall database system
is also the complete administrative backbone
of the company and will include the
following features as outlined below:
AGENT ACCESS
Order Entry access features -Full
remote, secure access with password
protection to the database -Data entry
capabilities for Mall owner and order entry
-Employee log-in automatically assigned to
entries -Authorization to make same day
changes on their entries only.
Customer Service access features -Full
remote, secure access with password
protection to the database -Access to view
all accounts for customer service related
issues -Authorization to make changes to
contact information (name, address, phone
number, email, etc.)
MODIFY ACCESS
Same features as Agent Access, Plus:
-May issue credits
-Able to make Social Security # or Federal Tax ID#
changes
-Authorization to correct data entry errors on any
agent's entries
MANAGEMENT ACCESS
Same features as Agent, and Modify
Access, PLUS:
Able to make sponsorship and
placement corrections to database
records
Limited Management Report capabilities
* Query retrieval by title or rank
* Query retrieval by state
EXECUTIVE ACCESS
Same features as Agent, Modify, and Management
Access, PLUS: -Commission check calculation and
printing functions
Printed check summary
Commission adjustment and correction capabilities
Ability to credit or debit
commissions
E-mail capabilities to all Web
Owners, as well as query type
retrievals for designing different
distribution lists, such as by title
or rank, by income, etc.
Full Management Report capabilities
-Query retrieval of various types
including but not limited to
Title or Rank
State
Income (i.e. top 100)
Activity
Types of sales
Number of hits to website
**A notes section on all IR and customer accounts will
be required to document entries,
revisions and communications.
Additional Features of the entire system:
Apex Interactive will be available via pager to provide
technical support on a 24-hour basis. Subject to the
terms of the Agreement, Apex will perform all technical
support for Travel Dynamics database and genealogy.
Interpretation of Exhibits. The attached Exhibits shall
be interpreted liberally to conform to the terms and
conditions of the Agreement. In the event any term or
provision of this Exhibits is in conflict, or is not
otherwise subject to interpretation in a manner
consistent with the Agreement, the terms and conditions
of the Agreement shall take precedence over any term or
condition of these Exhibits.
EXHIBIT B
The fee for phase 1 through 3 for programming and
graphic work to modify the Beechwood Research, LLC
model known as the "I-Mall" per the specifications in
Exhibit "A" and the design notes provided to APEX by
Xxxxxx X. Xxxxxxxx, shall be Five Hundred Eighty-Six
Thousand Three Hundred Dollars ($586,300), payable as
set forth below.
It is further understood that this cost does not
include back end integration of an accounting system
that will be decided on by Travel Dynamics and
purchased by them. It does not include the design of
an inventory management system nor does it include
interfacing to the UPS label printing and shipping
program currently under modification by United Parcel
Service, or the software that will give Travel Dynamics
the ability to fax reports or other pages using free
web services. These functions will be provided under
phase four (4) and will be completed on a time and
material basis at the billing rate of $120.00 per man
hour, should Travel Dynamics elect to add those
features to the system.
PAYMENT SCHEDULE
Payment Schedule:
Description of Milestone Payment terms Amount Due
n/a This is the amount prepaid $212,500
to Xxxx, to be delivered to
APEX by Xxxx and credited
towards the fee
Execution of Agreement due upon execution of Agreement $80,650
Completion of Phase 2 upon receipt of invoice $146,575
Product goes live on the Internet upon receipt of invoice $146,575
Delivery of Security Tokens Net 30 See Section 2.06
Hosting monthly See Section 2.05
Security Gateway pursuant to Net 30, monthly See Section 2.12
Section 2.12
Phase 4 work Net 30, monthly See Section 2.04 and
Exhibit A
Time Periods, Milestones, and Schedules:
Providing all content, graphics, Logos and approvals
are met the following schedule for completion of the
project is proposed:
1. 1 week after the date hereof: Travel Dynamics
shall have delivered to APEX all Project graphics
and functional direction per the enclosed
specifications in Exhibit "A" established.
2. 3 weeks after the date hereof: proposed
"I-office" reports shall be presented for review.
3. 11 weeks after the date hereof: Product
review scheduled with Xxxxxx Xxxxxxxx, Xxxxx
Xxxxxxx and other Travel Dynamics' personnel.
4. 12 weeks after the date hereof: final review
of the Product and check off meeting on the Product.
5. 13 weeks after the date hereof: site goes
live and the start of Phase 4.
