EXHIBIT 10.6
DESIGN AND DEVELOPMENT AGREEMENT
This DEVELOPMENT ASSISTANCE AGREEMENT (this "Agreement"), dated
--------------, 1999, is made and entered into by and between XXXXXXXXXX.XXX., a
Nevada corporation (hereinafter referred to as "Pawnbroker"), and BANSHEE, INC.,
a Nevada corporation (hereinafter referred to as "Banshee").
Banshee and Pawnbroker, intending to be legally bound, hereby agree as
follows:
Section 1
GENERAL
This Agreement sets forth the terms and conditions under which (1) Banshee
agrees to complete the Project (as defined herein below), and (2) Pawnbroker
agrees to provide the Assistance Resources (as defined herein below) to help
Banshee accomplish the Project. The Project consists of two broad phase items
described below.
Section 2
THE XXXXXXX
Xxxxxxx agrees to complete the following Project:
2.1 Work to Be Completed. Item 1) Design and development of a web site with
Oracle backend database, design and implementation of Xxxxxxxxxx.Xxx network
technology; and Item 2) Design and development of a compact disk ("CD"),
containing multimedia sales presentation, software and tutorial.
2.2 Completion Criteria. Pawnbroker may make a reasonable determination
that each milestone is complete, based on standard industry products.
Milestone No. Work/Items to be Completed Completion Date
------------- -------------------------- ---------------
1. 1) Design Phase 07/02
1) Hardware Require 04/29
2) Network Topo 05/18
3) Website 06/08
i) Browser 04/27
ii) 2D Page Layout 05/26
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Milestone No. Work/Items to be Completed Completion Date
------------- -------------------------- ---------------
iii) 3D Page Layout 06/08
4) Oracle 07/02
i) Schema 06/28
2) Production 08/24
1) WAN Complete 06/29
2) Website
i) Site Server 07/09
ii) COM Server 07/13
iii) TRANS Server 07/16
iv) DHTML 07/21
v) JAVA 08/24
3) 3rd party Integration 08/09
4) Database 08/11
i) Widget 07/12
ii) Subscriber 07/14
iii) Buyer Tables 07/19
iv) Law Enforcement 07/21
v) Widget 07/26
vi) Schema 07/28
vii) AP/AR 08/11
3) Xxxxx Xxxxx 00/00
1) Bug Scrub 08/20
2) Demo 08/23
4) Beta Phase 09/01
1) Final Bug 08/30
2) System Attack 09/01
5) Site Online
II CD-ROM - Milestones to be decided upon 06/24
completion of Design Phase
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Completion of a Milestone shall occur when Banshee demonstrates to Pawnbroker
that the Work and/or Items to Be Completed for such Milestone meet the
Completion Criteria and Pawnbroker has delivered Banshee's signed, written
certification that such Completion Criteria are met. Completion of the Project
shall occur upon completion of all Milestones.
2.3 Compliance. Banshee warrants that (1) it owns all intellectual property
rights comprised by the Items to Be Completed or otherwise needed for it to
conduct the Project and perform its obligations under this Agreement, or has the
authority to do so without infringing the rights of any third party or creating
any financial obligation to any third party, and (2) the completion of the
Project and the Banshee's performance of its obligations under this Agreement
will be in compliance with all applicable governmental laws, statutes,
ordinances, administrative orders, rules, and regulations.
2.4. Progress Reviews. Banshee shall permit Pawnbroker to conduct progress
reviews at Banshee's place of business at reasonable times and upon reasonable
notice.
Section 3
PAWNBROKER ASSISTANCE
Pawnbroker shall provide the following Assistance Resources to Banshee, and
Banshee agrees to use and apply the Assistance Resources solely to complete the
Project.
3.1 Funds. Pawnbroker agrees to provide Banshee with funding, to be used
solely to complete the Project, on the following basis:
Amount Date
------ ----
$100,000.00 Upon initial funding
$100,000.00 07/15/99
$45,000.00 Upon completion of Project
TOTAL VALUE: $245,000.00 Cash
3.2 Cumulative Value. The Cumulative Value of Assistance Resources shall
equal the value specified in Section 3.1 hereof for each item provided by
Pawnbroker, including applicable interest and other related charges.
3.3 Delays. If Pawnbroker fails to provide assets or delays in providing
items required in a timely manner, the Project time will slip by the same amount
of time. This paragraph will not
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severe the obligations of either party pursuant to this agreement.
Section 4
FURTHER ASSURANCES
4.1 Ownership. Upon completion, the project will be owned by Pawnbroker.
4.2 Maintenance. Maintenance is further defined in a separate service
agreement entered into between Banshee and Pawnbroker. Banshee will provide
support for sixty (60) days upon delivery.
4.3 Demonstration Copies. Banshee shall provide Pawnbroker with one (1)
copy of a demonstration version of all the Product components in executable
form, accompanied by demonstration instructions, for use by Pawnbroker in its
discretion.
4.4 Training. Banshee shall provide Pawnbroker with reasonable amounts of
training for Pawnbroker personnel and marketing assistance with respect to
complementary products that may be offered by Pawnbroker. Such training shall be
provided without charge for the first thirty (30) days of training sessions
attended by up to two (2) people, and thereafter shall be subject to Banshee's
standard charges or as provided for in a separate agreement entered into between
Banshee and Pawnbroker.
4.5 Marketing Rights. Banshee acknowledges that Pawnbroker will market the
Product to the public. For example, the web site will be accessed by the public
and access will be places as intended by the design. In addition, Pawnbroker
will mass produce and mail the CD at its own expense. Both parties may market
the product and advertise, as is beneficial to each party's respective business,
and as is consistent with that party's respective rights under this agreement.
Section 5
LICENSE
Pawnbroker hereby grants Banshee broad, exclusive and transferable license
to the Project, its components, related discoveries, designs and technologies.
Pawnbroker shall not permit the Project, or any part thereof to be disclosed to
others, except as intended by this agreement. The Project shall be trademarked
and labeled with appropriate copyright notices. Pawnbroker's obligations under
this paragraph survive any termination of this agreement.
Section 6
ADMINISTRATION
6.1 Principal Contacts. Pawnbroker and Banshee each designate by name the
following to
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serve as principal contact for purposes of the Project and this Agreement.
Banshee: Xxxxx Xxxxx Xxxxxx Valley Business Park
0000 Xxxxxxxx Xxxxxxx, Xxxx X
Xxxxxx, XX 00000
Pawnbroker: Xxx Xxxxxxxx ----------------------------------------
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6.2 Costs and Charges. Except as expressly provided in this Agreement,
Banshee shall not be entitled to any payment, cost reimbursement, or other
assistance or compensation from Pawnbroker for the Project, the preparation of
the Items to Be Completed, or the commitments made hereunder. Except as
otherwise specified in this Agreement, each party shall bear all its own
expenses incurred in rendering performance, including facilities, work space,
computers and computer time, utilities, management, clerical, reproduction
services, supplies, and the like.
6.3 Termination. This Agreement may be terminated only
1. By Pawnbroker for its convenience, provided that, if termination
results in the loss of any Assistance Resources and the Project is
consequently not completed, Pawnbroker shall forfeit any right to
repayment or compensation;
2. By Pawnbroker upon the default of Banshee or Banshee's failure to
complete the Project by at least 11/01/99; or
3. By mutual agreement of the parties.
6.4 Limitations. Neither party shall be entitled to indirect, incidental,
or consequential damages, including lost profits based on any breach or default
under this Agreement. In no event shall Pawnbroker be liable under this
Agreement to Banshee, its successors, and assigns for damages exceeding the
amounts payable and as yet unpaid by Pawnbroker under this Agreement.
6.5 Freedom of Action. Nothing in this Agreement shall be construed to
prohibit or restrict either party from independently developing or acquiring and
marketing materials and/or programs that are competitive with the Product.
6.6 Independent Contractor. Banshee is and shall remain an independent
contractor with respect to all Work. Neither Banshee nor any employee of Banshee
shall be considered an employee or agent of Pawnbroker for any purpose.
6.7 No Assignment. Banshee may not sell, transfer, assign, or subcontract
any right or obligation set forth in this Agreement, without the prior written
consent of Pawnbroker. Any act in derogation of the foregoing shall be null and
void.
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6.8 Governing Law. The validity, construction, and performance of this
Agreement will be governed by the substantive law of the State of Nevada.
6.9 Amendments in Writing. No amendment, modification, or waiver of any
provision of this Agreement shall be effective unless it is set forth in a
writing that refers to the provisions so affected and is executed by an
authorized representative of the party accepting any such waiver, or, in the
case of an amendment or modification, by authorized representatives of both
parties. No failure or delay by either party in exercising any right, power, or
remedy will operate as a waiver of any such right, power, or remedy.
6.10 Entire Understanding. PAWNBROKER AND BANSHEE ACKNOWLEDGE THAT NOTHING
IN THIS AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY PERSON OR
ENTITY, ANY RIGHTS, REMEDIES, OBLIGATIONS, OR LIABILITIES UNDER OR BY REASON OF
THE TERMS OF THIS AGREEMENT. BANSHEE REPRESENTS AND WARRANTS THAT, IN ENTERING
INTO THIS AGREEMENT, IT DOES NOT AND WILL NOT RELY ON ANY PROMISES, INDUCEMENTS,
OR REPRESENTATIONS MADE BY PAWNBROKER WITH RESPECT TO THE SUBJECT MATTER OF THIS
AGREEMENT, NOR ON THE EXPECTATION OF ANY OTHER BUSINESS DEALINGS WITH
PAWNBROKER, NOW OR IN THE FUTURE, AND THAT PAWNBROKER HAS GIVEN NO ASSURANCE AND
HAS UNDERTAKEN NO RESPONSIBILITY WITH RESPECT TO ANY PROMOTION OR MARKETING OF
THE PRODUCT OR ANY PORTION OR COMBINATION THEREOF WITH OTHER MATERIALS, DEVICES,
OR SERVICES.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized representatives.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
BANSHEE, INC. XXXXXXXXXX.XXX
By: ----------------------------- By: /s/ Xxxxxx Xxxxxxx
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Title: -------------------------- Title: President
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