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Exhibit 10.14
AGREEMENT FOR PROVISION OF
WORLD WIDE WEB HOSTING AND DEVELOPMENT AND RELATED SERVICES
BETWEEN PROMISE KEEPERS, INC. AND DIDAX, L.C.
This Agreement for Provision of World Wide Web Hosting and Development and
Related Services (hereinafter "Agreement"), is executed this 13th day of March,
1996, between Promise Keepers, Inc. (hereinafter "PK"), a Colorado nonprofit
corporation with tax-exempt status under Internal Revenue Code Section
501(c)(3), and DIDAX, L.C. (hereinafter "DIDAX"), a Virginia limited liability
corporation established as a religious organization.
1. RECITALS
1.1. WHEREAS, DIDAX provides certain services relating to World
Wide Web design, development, implementation, hosting,
refreshment, and management, and Internet access, as well as
certain services relating to electronic communications and
information sharing development and implementation, and has in
the past provided such services relating to electronic
communications and information sharing to PK in connection
with the Letter of Intent between the parties executed
February 2, 1995 (hereinafter "Letter of Intent"); and
1.2. WHEREAS, PK desires that DIDAX provide such services to PK and
PK's constituents, and DIDAX desires to provide such services;
and
1.3. WHEREAS, both parties desire to execute this Agreement for
DIDAX to provide such services to PK in consideration for PK's
payment of certain rates and fees and fulfillment of certain
obligations, all on the terms and conditions set forth herein;
and
1.4. WHEREAS, PK and DIDAX share a common ministry and mission to
serve the Lord Xxxxx Xxxxxx by, among other things, advancing
the Kingdom of God, and particularly this present movement of
God among men utilizing electronic communication media and
technology;
1.5. WHEREAS, PK and DIDAX desire to conclude and supersede the
Letter of Intent;
1.6. NOW, THEREFORE, in consideration of the mutual promises
contained in this Agreement, the Parties agree as follows:
2. DEFINITIONS
The following definitions are set forth in alphabetical order.
2.1. "BASE MONTHLY ACCESS FEES" shall mean the flat monthly fees
paid by Subscribers for a specified number of hours of
Internet access. "Base monthly access fees" shall not
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include any fees or charges for access by a Subscriber in
excess of the specified number of hours of Internet access.
2.2. "CHRISTIAN COMMUNITY WEB SITE" shall mean the World Wide Web
"home page" and site that DIDAX will design, develop, and
implement for use in aggregation of Christian content and
information as well as for its own use, located at the
specific URL identified in writing by DIDAX to PK from time to
time.
2.3. "DIDAX THIRD PARTY AGREEMENTS" shall mean any agreements that
DIDAX enters into with parties other than PK (including but
not limited to computer hardware and software vendors and
Internet access providers) to fulfill its obligations to PK
under this Agreement and/or to provide additional services to
PK.
2.4. "FULL TIME EQUIVALENT" OR "FTE" shall mean the functional
equivalent of the services of a single DIDAX employee working
on a full-time basis. For purposes of this Agreement, a Full
Time Equivalent shall be calculated on a monthly basis, and is
an employee or group of employees who collectively performs
services for a number of hours equivalent to no more than the
number of hours that would be performed by an individual
working eight (8) hours per day on all business days in a
given month, not including any holidays observed by PK, and
allowing two weeks per year of vacation allocated
proportionally during each month. Travel time shall not be
included in the measurement of hours performed by an FTE.
2.5. "INITIAL TERM" shall mean the period of time beginning upon
the Date of Execution set forth above, and concluding on the
Conclusion Date specified in Section 16.12 of this Agreement,
no less than nine (9) calendar months from such Date of
Execution.
2.6. "INTERNET" shall mean the wide area cooperative network of
university, corporate, government, and private computer
networks communicating through Transmission Control
Protocol/Internet Protocol ("TCP/IP") that is commonly
referred to as the Internet.
2.7. "PK APPLICATIONS" shall mean software applications, programs,
or other computer- executable code developed or programmed by
DIDAX for or on behalf of PK for use on or in connection with
the PK System. A comprehensive listing of the PK Applications
as of the Date of Execution of this Agreement is attached
hereto as Exhibit A.
2.8. "PK CONSTITUENTS" shall mean individuals who (1) are on PK's
mailing list; (2) participate in a PK-sponsored event; or (3)
purchase products from PK.
2.9. "PK SYSTEM" shall mean the internal electronic communication
and information sharing system utilizing the Lotus Notes(TM)
platform that DIDAX has designed, developed, and implemented
for PK in connection with the Letter of Intent and as
continued under this Agreement.
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2.10. "PK WEB SITE" shall mean the World Wide Web "home page" and
site that DIDAX will design, develop, and implement for PK
under this Agreement, using content and information created or
provided by PK.
2.11. "SUBSCRIBERS" shall mean PK Constituents who obtain access to
the Internet through services provided by DIDAX.
2.12. "UNIVERSAL RESOURCE LOCATOR" OR "URL" shall mean the standard
addressing method that identifies information or resources on
the Internet, and that is used when navigating the World Wide
Web.
2.13. "WORLD WIDE WEB" shall mean the Internet service bearing such
name that provides the users thereof with access to selected
information databases and to selected services on the Internet
through the use of Universal Resource Locators ("URLs").
3. COMPLETE AGREEMENT
This Agreement sets forth the complete agreement between the parties and
supersedes and hereby terminates the Letter of Intent between the parties
executed February 2, 1995. The parties hereby acknowledge that their
respective obligations under that Letter of Intent have been completely and
finally satisfied, and that all such obligations, except for the parties'
respective obligations under Section 2.8 and 2.14 of the Letter of Intent, are
now and forever completely extinguished.
4. TERM AND TERMINATION
4.1. TERM. This Agreement shall remain in effect from the Date of
Execution stated above until superseded by a subsequent
written agreement executed by both parties, or terminated as
permitted herein.
4.2. INITIAL TERM. To give the project a fair opportunity to
succeed, the parties agree to continue performance of this
Agreement for at least the entire Initial Term, as defined in
Section 2.4 above, in the absence of uncured material breach
by the other party.
4.3. TERMINATION FOR BREACH. Either party may terminate this
Agreement at any time upon thirty (30) days after written
notice to the other party specifying the breach if the other
party (1) materially breaches this Agreement and (2) fails to
cure the breach within the thirty (30) day notice period.
4.4. TERMINATION AT WILL. At any time following the conclusion of
the Initial Term, either party may terminate this Agreement
without cause upon sixty (60) days prior written notice.
5. WORLD WIDE WEB DEVELOPMENT
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5.1. WORLD WIDE WEB DEVELOPMENT SERVICES. In consideration for
PK's payment of fees under the following Section 5.2 of this
Agreement, DIDAX shall provide PK, upon request, with
services to design, develop, implement, manage, and refresh a
World Wide Web "home page" and site for PK (hereinafter the
"PK Web Site"), using content and information created or
provided by PK. Such services are collectively referred to
hereinafter as "Web development services." These shall include
but are not limited to using DIDAX' personnel and/or third
party personnel as needed (1) to convert PK content or
information into HyperText Xxxx-up Language ("HTML") for
inclusion in the PK Web Site; and (2) to manage and refresh
the PK Web Site using additional content or information
provided by PK from time to time.
5.2. FEES FOR WEB DEVELOPMENT SERVICES. In consideration for
DIDAX' provision of Web development services under the
preceding Section 5.1 of this Agreement, PK agrees to pay
DIDAX fees for such services (plus reasonable travel expenses
as approved by PK) in accordance with the following rate
schedule:
----------------------------------------------------------------------------------------------------
Service Rate / Fee
------- ----------
----------------------------------------------------------------------------------------------------
Development and implementation of PK Web Site $95.00 per person per hour
----------------------------------------------------------------------------------------------------
Graphics design for PK Web Site $65.00 per person per hour
----------------------------------------------------------------------------------------------------
HTML coding or conversion of PK content / information $45.00 per person per hour
----------------------------------------------------------------------------------------------------
Refreshment and/or management of PK Web Site $75.00 per person per hour
----------------------------------------------------------------------------------------------------
5.3. CHARITABLE CONTRIBUTION OF CERTAIN WEB DEVELOPMENT SERVICES.
At the conclusion of the Initial Term, unless this Agreement
is previously terminated by PK without cause or by DIDAX with
cause, DIDAX agrees that as a charitable contribution to PK's
ministry and charitable activities, DIDAX will not charge PK
for the first fifty thousand dollars ($50,000) of such Web
development services performed during the Initial Term by
DIDAX pursuant to Sections 5.1 and 5.2, as specifically
directed in writing by PK. If this Agreement is terminated by
PK with cause or by DIDAX without cause prior to the
conclusion of the Initial Term, DIDAX will not charge PK for
such Web development services performed as of the Date of
Termination by DIDAX pursuant to Sections 5.1 and 5.2, as
specifically directed in writing by PK, up to a total of fifty
thousand dollars ($50,000) of such Web development services.
6. WORLD WIDE WEB HOSTING
6.1. PROVISION OF WORLD WIDE WEB HOSTING SERVICES. In
consideration for PK's payment of fees under the following
Section 6.2 of this Agreement, DIDAX shall provide PK with
World Wide Web hosting services for the PK Web Site and the PK
content and information provided thereon, via the IBM Global
Network / Advantis Service, or via UUNet or such other
comparable World Wide Web hosting provider as DIDAX may from
time to time select.
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6.2. FEES FOR PROVISION OF WORLD WIDE WEB HOSTING SERVICES. In
consideration for DIDAX' provision of such World Wide Web
hosting services to PK under Section 6.1, PK shall pay DIDAX:
6.2.1. a one-time fee of one thousand dollars (U.S. $1,000)
for initial set-up of the PK Web Site (the "Initial
Set-Up Fee"), and
6.2.2. an ongoing monthly fee (the "Monthly Hosting Fee"),
independent of the amount of server activity on the
file servers where the PK Web Site is located, and
independent of the number of "hits" on and megabytes
of data transferred to and from the PK Web Site, not
to exceed one thousand dollars (U.S. $1,000) per
month during the Initial Term of this Agreement.
6.3. CHARITABLE CONTRIBUTION OF CERTAIN WEB HOSTING SERVICES. As a
charitable contribution to PK's ministry and charitable
activities, DIDAX will not charge PK the Initial Set-Up Fee or
the Monthly Hosting Fee during the Initial Term of this
Agreement. This charitable contribution will be made
regardless of any determination of its tax deductibility to
DIDAX.
6.4. TRANSACTION PROCESSING FEES. In consideration for DIDAX'
processing of specific financial transactions between PK and
PK Constituents by means of the PK Web Site, PK shall pay
DIDAX a fee for each such transaction to cover DIDAX'
reasonable expenses of processing such transactions (the
"Transaction Processing Fee"). The amount of the Transaction
Processing Fee for any transaction shall be one-and-one-half
percent (1.5%) of the total amount (in dollars) of that
transaction, but in any event shall be no less than fifty
cents ($0.50) per transaction. DIDAX agrees, upon written
request by PK, to integrate all transactions into or with the
PK System. In such a case, the amount of the Transaction
Processing fee for such transaction shall increase to two
percent (2%) of the total amount (in dollars) of that
transaction, but in any event shall be no less than fifty
cents ($0.50) per transaction. Both parties agree that this
Transaction Processing Fee does not include any third party
charges, including but not limited to bank charges, credit
card company charges, and electronic funds transfer charges,
which may be applicable to such transactions, and that DIDAX
shall have no liability or responsibility for any such
charges.
7. LOTUS NOTES(TM) IMPLEMENTATION
7.1. PROVISION OF TWO (2) FULL-TIME EQUIVALENTS ("FTES"). During
the Initial Term, DIDAX shall provide two (2) full-time
equivalents ("FTEs"), as defined in Section 2.3 of this
Agreement, to perform the following consulting services for
and on behalf of PK:
7.1.1. administration of the internal Lotus Notes(TM) system
and servers located at PK's national headquarters
building that DIDAX has previously designed,
developed, and implemented for PK (the "PK System")
under the Letter of Intent, including
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but not limited to the PK Applications identified in
Attachment A to this Agreement;
7.1.2. project management of the PK System;
7.1.3. development of additional PK Applications and
enhancements to PK Applications listed in Exhibit A
for use in the PK System; and
7.1.4. development, implementation, management, and
refreshment of the PK Web Site.
These FTEs shall be selected from time to time by DIDAX in its
sole discretion, shall at all times be employees of DIDAX, not
of PK, and shall at all times operate under the complete
direction and control of DIDAX in its sole discretion. Any
specific project or assignment to be performed by these FTEs
must be requested in writing by PK and must be approved by
both the DIDAX Project Manager and the PK Project Manager
supervising the PK System. DIDAX shall provide a monthly
report to PK, itemizing the hours and giving a detailed
description of the activities of the FTEs. DIDAX shall notify
PK in advance or as soon as reasonably possible when a work
order is expected to exceed the FTEs' time allowance under
this Section 7.1 by more than ten percent (10%) for a given
month.
7.2. CONSULTING FEES FOR PROVISION OF TWO (2) FTES. Unless this
Agreement is terminated by PK without cause or by DIDAX for
cause either party prior to the conclusion of the Initial
Term, DIDAX agrees that as a charitable contribution to PK's
ministry and charitable activities, DIDAX will not charge PK
consulting fees for the services performed by the two (2) FTEs
pursuant to Section 7.1.
7.3. CONSULTING FEES FOR ADDITIONAL DIDAX CONSULTANTS. Upon
written request by PK, DIDAX shall provide PK with the
services of one (1) or more DIDAX consultants (in addition to
the two FTEs provided during the Initial Term, as set forth in
Section 7.1 above) to develop, implement, manage, and support
the PK System, in exchange for payment by PK of consulting
fees of five hundred dollars (US $500) per consultant per
eight (8) hour workday, or seventy-five dollars (US $75) per
consultant per hour.
7.4. PAYMENT OF TRAVEL EXPENSES OF DIDAX FTES AND CONSULTANTS. PK
shall pay the ordinary and reasonable expenses of travel
incurred by DIDAX FTEs and consultants provided under this
Agreement for all travel that is requested, initiated, or
otherwise approved by PK. PK shall have no responsibility for
any expenses for travel by DIDAX FTEs or consultants that is
not requested, initiated, or otherwise approved by PK.
8. PK PARTICIPATION IN THE DIDAX CHRISTIAN COMMUNITY WEB SITE.
In consideration for DIDAX' provision of services under this Agreement, PK
shall participate as a "Charter Organization" in DIDAX' Christian Community Web
Site. Such participation shall not impose any obligations upon PK other than
those identified herein or approved by PK from time to time in its sole and
absolute discretion.
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9. LOTUS NOTES(TM) SYSTEM USER FEES
9.1. MONTHLY SYSTEM USER FEES. In consideration for DIDAX'
provision and operation of the PK System, PK shall pay DIDAX a
monthly fee for each person using or accessing the PK System
(the "Monthly System User Fee") on the terms and conditions
set forth below. Each such person using or accessing the PK
System for whom PK is to pay the Monthly System User Fee is
referred to hereinafter as a "PK User."
9.1.1. LEASED SOFTWARE OPTION. In consideration for payment
by PK of a Monthly System User Fee in the amount of
four dollars and ninety-five cents (US $4.95) per PK
User, DIDAX shall provide PK with a sublicense for
each PK User to use the Lotus Notes(TM) application
to access and use the PK System and shall provide PK
with Lotus Notes(TM) Servers and Lotus Notes(TM)
Server Software in accordance with Section 9.2 below.
DIDAX will not charge PK for licenses received from
third party vendors without any charge to DIDAX.
9.1.2. PURCHASED SOFTWARE OPTION. In consideration for
payment by PK of a Monthly System User Fee in the
amount of two dollars and ninety-five cents (US
$2.95) per PK User, DIDAX shall provide PK with Lotus
Notes(TM) Servers and Lotus Notes(TM) Server Software
in accordance with Section 9.2 below. Payment of the
Monthly System User Fee under this Section does not
convey to PK any license or sublicense for a PK User
to use the Lotus Notes(TM) application; PK shall be
solely responsible to obtain appropriate licenses or
sublicenses from Lotus Development Corporation and/or
other third parties to use the Lotus Notes(TM)
end-user application for each such PK User. DIDAX
shall make reasonable efforts to assist PK in
obtaining such licenses.
9.1.3. MONTHLY SYSTEM USER FEES EXCLUSIVE OF
TELECOMMUNICATIONS, HARDWARE, SOFTWARE, AND NETWORK
EXPENSES. All expenses of telecommunications,
including but not limited to the purchase or lease
and the maintenance of telecommunications hardware
such as routers and payments for local,
long-distance, and other telephone services, shall be
the exclusive responsibility of PK. All expenses for
network and user hardware and software other than the
individual Lotus Notes(TM) Servers (provided pursuant
to Section 9.2 below) and any Lotus Notes(TM)
application sublicenses (provided pursuant to Section
9.1.1 above, including but not limited to expenses
for the purchase or lease and maintenance of network
servers, individual computers for PK Users, network
software, operating systems, and network wiring and
connections) shall be the exclusive responsibility of
PK.
9.2. PROVISION OF LOTUS NOTES(TM) SERVERS AND SERVER SOFTWARE. In
consideration for PK's payment of the Monthly System User Fees
pursuant to Section 9.1 above, DIDAX shall lease to PK and
shall install on PK's existing local area or wide area network
at PK's main headquarters two (2) Lotus Notes(TM) servers
running licensed copies of the Lotus Notes(TM)
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server software (the "Lotus Notes(TM) Server") for the first
five hundred (500) PK Users for whom PK has paid the Monthly
System User Fees. DIDAX shall lease to PK and shall install
on PK's existing network one (1) additional Lotus Notes(TM)
Server for every additional five hundred (500) PK Users, upon
payment by PK of a monthly fee of five hundred dollars (US
$500) per Lotus Notes(TM) Server per month (the "Monthly Lotus
Notes(TM) Server Fee"). PK may lease additional Lotus
Notes(TM) Servers from DIDAX by payment of this Monthly Lotus
Notes(TM) Server Fee for each additional Lotus Notes(TM)
Server. Once installed, any equipment relocation requested by
PK shall be provided by DIDAX at the fees set forth in Section
7.3 above, if such relocation involves labor beyond the FTE s
described in Section 7.2 above. In the event of termination
of this Agreement for any reason, PK shall have the right to
purchase any Lotus Notes Servers currently in use within the
PK System for their current depreciated value, as computed
under a straight line three year depreciation schedule.
10. INTERNET ACCESS
10.1. DIDAX' PROVISION OF INTERNET ACCESS. In consideration for
PK's performance of its obligations under this Section 10, and
subject to PK's approval of DIDAX' initial rate structure for
such access, DIDAX shall make available to PK Constituents
access to the Internet via the IBM Global Network / Advantis
Service, or via UUNet, or such other comparable Internet
access provider as DIDAX may from time to time select.
10.2. DONATION OF PERCENTAGE OF QUARTERLY REVENUE GENERATED BY PK
MARKETING. During the Term of this Agreement, as
consideration for PK's good faith efforts to market and
promote, pursuant to Section 12 of this Agreement, the
Internet access offered by DIDAX under this Agreement, DIDAX,
at the conclusion of each quarter during which DIDAX has net
profits, but in any event without regard to profitability by
the end of the Initial Term, shall make a charitable donation
to PK on the following basis: For each Subscriber who became
a Subscriber for the first time as a direct result of PK's
marketing and promotion of the DIDAX Internet Access, which
shall be determined by an invitation to all Subscribers to
identify the source relationship through a PK marketing
channel at the time of online registration for the DIDAX
Internet Access, DIDAX shall make a donation to PK during each
of the first four (4) quarters that such person is a
Subscriber, in an amount equal to five percent (5%) of DIDAX'
gross revenues from the Base Monthly Access Fees paid by all
such Subscribers during that quarter. If this Agreement is
terminated by PK with cause during the Initial Term, by PK
with or without cause subsequent to the Initial Term, or by
DIDAX without cause at any time, this donation shall be
unaffected for a period of twelve (12) months following
termination, after which it shall cease. If this Agreement is
terminated by DIDAX with cause at any time, or by PK without
cause during the Initial Term, this donation shall immediately
cease.
10.3. DONATION OF DIDAX STOCK. As a charitable contribution to PK's
ministry and charitable activities, DIDAX shall donate shares
of DIDAX' common stock to PK.
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10.3.1. Upon satisfactory completion of PK's marketing and
promotional commitments in connection with the
"special kick-off effort" described in Section 12.6
below, DIDAX shall donate ten thousand (10,000)
shares of DIDAX' common stock to PK.
10.3.2. Upon completion of nine (9) calendar months from the
Date of Execution of this Agreement, unless this
Agreement is previously terminated by DIDAX for cause
or by PK with or without cause, DIDAX shall donate
forty thousand (40,000) additional shares of DIDAX'
common stock to PK.
11. EXCLUSIVITY COMMITMENT
11.1. EXCLUSIVE WORLD WIDE WEB SERVICES. In consideration for
DIDAX' provision of services to PK under Sections 5.1 and 5.2
of this Agreement, and in recognition of the substantial
uncompensated design, development, and implementation services
that DIDAX is providing to PK, PK shall use DIDAX during the
Initial Term of this Agreement, as PK's sole source for and
provider of World Wide Web development, implementation,
hosting, refreshment, and management services, and as PK's
exclusive multi-user electronic communication,
information-sharing, and publishing provider. During the
Initial Term, PK shall not utilize Web hosting services
provided by any person or entity other than DIDAX and shall
not publish or otherwise make PK content or information
available on any other site on the World Wide Web and/or the
Internet. Notwithstanding, PK shall have no obligation to
attempt to control the activities of any persons other than PK
employees. This section shall not be construed to limit PK's
right to publish any material of any kind via non-Internet-
related CD-ROMs, audio, video, broadcast, or any other
non-Internet-related medium not specified herein.
11.2. EXCLUSIVE INTERNET ACCESS. In consideration for DIDAX'
provision of Internet access to PK Constituents under Section
10.1 on or before July 1, 1996, and in recognition of the
substantial donations by DIDAX to PK under Sections 10.2 and
10.3, during the Term of this Agreement, PK: (1) shall not
promote or endorse any other Internet access provider,
service, or vendor or any competitive online services
(hereinafter collectively "Competitive Services); (2) shall
not market PK data and databases to any such Competitive
Services; (3) shall not promote subscriptions to any such
Competitive Services; and (4) shall use DIDAX as PK's
exclusive provider of Internet access for PK Constituents in
any and all area codes in which DIDAX is able to provide such
access via a local telephone number. In all such area codes,
PK shall not utilize any Competitive Services for networking
among its staff and/or user base, except that PK staff may
maintain personal subscriptions to other services for
informational purposes and uses.
12. PK PROMOTIONAL COMMITMENTS
In consideration for DIDAX' provision of services to PK under Sections 5.1 and
5.2 of this Agreement, and of Internet access to PK Constituents under Section
10.1 of this Agreement, PK
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agrees that it will use its existing communication channels and its good faith
efforts, as defined herein, to endorse and promote to varying degrees (1) the
PK Web Site, (2) the Christian Community Web Site, and (3) the Internet access
provided to PK Constituents by DIDAX pursuant to Section 10 of this Agreement
(hereinafter the "DIDAX Internet Access"). PK's endorsement and promotion
commitments include at least the following:
12.1. ENDORSEMENT. PK shall provide to DIDAX written statements for
public distribution endorsing the PK Web Site, the Christian
Community Web Site, and the DIDAX Internet Access. PK's
endorsement shall not indicate that DIDAX is superior to any
other provider, but only that DIDAX is a Christian-controlled
company that can provide access to the Internet.
12.2. LIMITED TRADEMARK LICENSE. While DIDAX hereby acknowledges
the importance of preserving the integrity of PK's names,
marks, and goodwill, PK authorizes DIDAX to reproduce and use,
and hereby grants DIDAX a royalty-free license to reproduce
and use, subject to PK approval (which shall not unreasonably
be withheld) under this Section 12.2, the Promise Keepers'
logo, trademark(s), and trade name(s) in DIDAX marketing
materials and literature (including but not limited to
electronic forms of the same) for the purpose of publicizing
DIDAX' provision of internal communication and Web development
services, the PK Web Site, the Christian Community Web Site,
and the DIDAX Internet Access.
To obtain PK approval hereunder, DIDAX shall submit a written
request for such approval via electronic mail and/or facsimile
(the "Initial Request") to Xxxx Xxxxxxxxxx of PK or such other
PK employee as PK shall identify to DIDAX in writing from time
to time pursuant to Section 16.6 (the "PK Reviewer"). Within
seventy-two (72) hours of DIDAX's transmission of this Initial
Request, PK shall notify DIDAX in writing via electronic mail
and/or facsimile of its approval or disapproval of such a
request. In the event that DIDAX has not received such
written notice of approval or disapproval within this
seventy-two (72) hour period, DIDAX shall so notify PK in
writing via electronic mail and facsimile (the "Final
Request") to the PK Reviewer. If, within twenty-four (24)
hours of DIDAX' transmission of this Final Request, the PK
Reviewer has not notified DIDAX in writing via electronic mail
and facsimile of PK's approval or disapproval of DIDAX'
Initial Request, DIDAX' Initial Request shall automatically be
deemed "approved" by PK under this Section 12.2. Whenever PK
disapproves such a request, PK's written notice of such
disapproval to DIDAX shall specify PK's reasons for
disapproval and PK's suggestions for modifying the particular
DIDAX marketing materials and literature so as to obtain PK
approval.
12.3. PK WEB SITE. PK agrees that during the Term of this
Agreement, the PK Web Site developed by DIDAX under this
Agreement shall be the exclusive official PK site on the World
Wide Web and the Internet, and that DIDAX may identify itself
in promotional and marketing materials as the developer and
provider of the exclusive official PK Web Site.
12.4. EXCLUSIVE INTERNET ACCESS PROVIDER. PK agrees that during the
Term of this Agreement, it shall endorse no other Internet
access provider, that DIDAX shall be the exclusive
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endorsed provider of Internet access to PK Constituents, and
that DIDAX may identify itself in promotional and marketing
materials as PK's exclusive Internet access provider.
12.5. SPECIAL KICK-OFF EFFORT FOR PK WEB SITE. PK shall participate
in a "special kick-off effort" to introduce the PK Web Site to
PK Constituents once the PK Web Site is operational. PK's
participation in this special kick-off effort shall include at
least (1) PK's issuance of an official PK press release
endorsing the PK Web Site; (2) PK's issuance of an on-line
news release endorsing the PK Web Site; (3) PK's promotion of
the PK Web Site in available mailings to Constituents to be
determined at PK's sole discretion following the PK Web Site
becoming operational; (4) PK's publication of an article, news
feature, or announcement endorsing the PK Web Site in the
first issues of New Man magazine and of PK's Men of Action
newsletter published after the PK Web Site is operational; (5)
the making of an official PK announcement endorsing the PK Web
Site from the main platform podium at the first PK conference
held after the PK Web Site is operational; (6) the making of
further official PK announcements endorsing the PK Web Site
from the main platform podium at no fewer than four (4)
additional PK conferences during the Initial Term; and (7) the
provision to DIDAX of no less than one-quarter (1/4) of a full
printed page in the 1996 PK syllabus distributed to those
attending PK conferences and clergy conferences.
12.6. SPECIAL KICK-OFF EFFORT FOR INTERNET ACCESS. PK shall
participate in a "special kick-off effort" to introduce the
DIDAX Internet Access to PK Constituents, promptly after PK's
approval of DIDAX' rate structure for such access. PK's
participation in this special kick-off effort shall be similar
to and shall include at least the elements listed above in
Section 12.5.
12.7. CONTINUING MARKETING. PK shall engage in ongoing marketing
activities promoting the PK Web Site and the DIDAX Internet
Access to PK Constituents. These ongoing marketing activities
include at least (1) PK's periodic issuance of official PK
press releases highlighting developments in and enhancements
to the PK Web Site and the DIDAX Internet Access; (2) PK's
regular mention of the PK Web Site and the DIDAX Internet
Access in PK newsletters directed at PK's different
constituent groups; and (3) PK's announcement and promotion of
the PK Web Site and the DIDAX Internet Access at appropriate
times during PK conferences and other PK events, with the
frequency and extent of all three activities to be determined
in PK's sole discretion.
12.8. EXHIBIT SPACE. PK shall provide DIDAX with favorable booth
space comparable to that utilized by New Man Magazine in each
product tent or exhibit area set up at each PK conference, at
the same rates that PK charges other organizations for such
space and without any royalty obligations, for DIDAX to
promote, market, and sell the PK Web Site and the DIDAX
Internet Access to PK Constituents. Such booth shall be
operated by DIDAX personnel and at DIDAX' expense.
13. ALLOCATION OF LICENSES
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13.1. UPON CONCLUSION OF INITIAL TERM.
13.1.1. At the conclusion of the Initial Term of this
Agreement, unless this Agreement is previously
terminated by PK or by DIDAX, and upon payment in
full by PK of all fees due to DIDAX under Sections 5
and 7 of this Agreement, DIDAX shall grant to PK, to
the extent permitted by applicable agreements between
DIDAX and third parties, a perpetual,
non-transferable license to possess and to use (1)
any World Wide Web "page" form, any HTML "pages", and
any CGI scripts designed and/or developed by DIDAX,
as specifically directed in writing by PK and paid
for under Section 5 of this Agreement, for inclusion
in the PK Web Site during the Initial Term; and (2)
any PK Applications designed, developed, and/or
implemented by DIDAX, as specifically directed in
writing by PK and paid for under Section 7 of this
Agreement, during the Initial Term.
13.1.2. In the event that DIDAX terminates this Agreement
without cause prior to the conclusion of the Initial
Term, DIDAX shall grant to PK all of the rights
enumerated in Section 13.1.1 above without additional
consideration from PK.
13.2. UPON COMPLETION OF NINE (9) MONTHS FROM DATE OF EXECUTION OF
AGREEMENT. In addition to the donation of DIDAX' stock
provided for in Section 10.3 above, upon the completion of
nine (9) calendar months from the Date of Execution of this
Agreement, unless this Agreement is previously terminated by
PK without cause or by DIDAX with cause:
13.2.1. DIDAX agrees that as a charitable contribution to
PK's ministry and charitable activities, DIDAX will
not charge PK consulting fees for DIDAX' services in
designing, developing, and implementing the PK System
(including but not limited to DIDAX' design,
development, and implementation of the PK
Applications identified in Attachment A to this
Agreement), that have been incurred prior to the Date
of Execution of this Agreement. DIDAX estimates that
these fees total substantially more than
two-hundred-fifty-thousand dollars (US $250,000).
13.2.2. DIDAX shall grant to PK, to the extent permitted by
applicable agreements between DIDAX and third
parties, a perpetual, non-transferable license to
possess and to use the PK Applications identified in
Exhibit A to this Agreement.
13.3. UPON TERMINATION OF AGREEMENT PRIOR TO COMPLETION OF NINE (9)
MONTHS FROM DATE OF EXECUTION OF AGREEMENT. In the event
that, prior to the completion of nine (9) calendar months from
the Date of Execution of this Agreement, this Agreement is
terminated by PK without cause or by DIDAX for cause:
13.3.1. DIDAX shall not make the charitable contribution to
PK described in Section 13.2.1, and PK shall promptly
reimburse DIDAX in the amount of two-hundred-fifty-
thousand dollars (US $250,000) if it wishes to retain
the Applications identified in Exhibit A, except as
provided in Section 13.3.2 below.
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13.3.2. Upon payment to DIDAX by PK of the
two-hundred-fifty-thousand dollars (US $250,000) in
consulting fees described in Section 13.2.1, DIDAX
shall grant to PK, to the extent permitted by
applicable agreements between DIDAX and third parties
(including but not limited to Lotus Development
Corporation), a perpetual, non- transferable license
to possess and to use the PK Applications identified
in Exhibit A to this Agreement. In the event that PK
elects not to pay this $250,000 in consulting fees,
all licenses to the PK Applications that DIDAX has
granted to PK shall immediately terminate, and PK
shall promptly return all such PK applications to
DIDAX in accordance with Section 13.5.
13.3.3. In the event that PK terminates this Agreement for
cause or DIDAX terminates this Agreement without
cause prior to the completion of nine (9) calendar
months from the Date of Execution of this Agreement,
DIDAX shall grant to PK without further
consideration, to the extent permitted by applicable
agreements between DIDAX and third parties, a
perpetual, non-transferable license to possess and to
use the PK Applications identified in Attachment A to
this Agreement, and DIDAX shall forgo and release all
claims arising from its development services noted
under Section 13.2.1 above.
13.4. UPON TERMINATION OF AGREEMENT PRIOR TO CONCLUSION OF INITIAL
TERM. In the event that, prior to the conclusion of the
Initial Term, this Agreement is terminated by PK without cause
or by DIDAX for cause:
13.4.1. DIDAX shall not make the charitable contributions to
PK of Web development services specified in Section
5.3, and of not charging consulting fees for the
services performed by the two (2) FTEs pursuant to
Sections 7.1 and 7.2, and PK shall promptly reimburse
DIDAX for those services and associated costs, except
as provided in Section 13.4.2 below.
13.4.2. DIDAX shall grant to PK, to the extent permitted by
applicable agreements between DIDAX and third parties
(including but not limited to Lotus Development
Corporation), a perpetual, non-transferable license
to possess and to use (1) only such World Wide Web
"page" forms, HTML "pages", and CGI scripts designed
and/or developed by DIDAX, as specifically directed
in writing by PK, for inclusion in the PK Web Site on
or before the date upon which such termination
becomes effective, for which PK has already paid or
immediately pays DIDAX in full, and (2) only such PK
Applications as have been developed, implemented, or
managed by DIDAX FTEs and/or consultants providing
services pursuant to Sections 7.1, 7.2, and 7.3 of
this Agreement for which PK has already paid or
immediately pays DIDAX in full.
13.4.3. All World Wide Web "page" forms, HTML "pages", CGI
scripts, software, applications, and other
computer-executable code developed, enhanced,
implemented, and/or deployed by DIDAX for inclusion
or use in or in connection with the PK Web Site shall
remain the intellectual property of DIDAX and shall
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14
be returned to DIDAX by PK, except as specifically
provided in Section 13.4.2 of this Agreement.
13.4.4. All software, applications, and other
computer-executable code developed, enhanced,
implemented, and/or deployed by DIDAX, as
specifically directed in writing by PK, during the
Initial Term shall remain the intellectual property
of DIDAX and shall be returned to DIDAX by PK, except
as specifically provided in 13.4.2.
13.4.5. All other licenses and rights granted to PK under
this Agreement shall terminate in accordance with and
except as provided in Section 13.5.
13.5. TERMINATION OF LICENSES. Upon termination of this Agreement
at any time by either party, with or without cause, unless
superseded by a subsequent written agreement executed by both
parties:
13.5.1. all software licenses granted to PK under this
Agreement and/or the Letter of Intent shall
terminate, except as specifically provided in
Sections 13.1 through 13.4;
13.5.2. all software, applications, and other
computer-executable code developed, enhanced,
implemented, and/or deployed by DIDAX as specifically
directed in writing by PK, including but not limited
to the PK Applications, shall remain the intellectual
property of DIDAX and shall be returned to DIDAX by
PK, except as specifically provided in Sections 13.1
through 13.4;
13.5.3. neither party shall have any further obligation to
the other party under this Agreement, except for the
confidentiality obligations established by Section
14.8 of this Agreement; and
13.5.4. any software licenses that PK has obtained directly
from third parties, and not through DIDAX, including
but not limited to any software licenses that PK has
obtained directly from Lotus Development Corporation,
shall not be affected by this Section 13.5.
13.6. TERMINATION OF LICENSES FOR VIOLATION OF SECTION 14.8
REGARDING CONFIDENTIAL INFORMATION. Notwithstanding any of
the foregoing provisions of this Section 13, if at any time PK
violates Section 14.8 of this Agreement regarding Confidential
Information, DIDAX' donations to PK pursuant to Section 10.2
of this Agreement shall cease for one (1) quarter, after which
such donations shall resume. Upon the third violation of
Section 14.8 by PK, DIDAX may, at its option, terminate all
licenses granted to PK under this Agreement.
13.7 WARRANTY; DIDAX THIRD PARTY AGREEMENTS. DIDAX warrants and
represents that any licenses and rights that it conveys to PK
under this Section 13 shall be as extensive as DIDAX' own
licenses to the same, and shall be subject only to such
applicable DIDAX
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Third Party Agreements as DIDAX has previously identified
under this Section 13.7. DIDAX shall identify in writing to
PK (1) any such DIDAX Third Party Agreements that will apply
to a particular project, service, or work order that DIDAX is
to perform for PK pursuant to this Agreement and that may be
conveyed to PK under this Section 13 (hereinafter "Work
Order"), and (2) the specific limitations that will be imposed
upon any licenses to be conveyed to PK under this Section 13,
at the commencement of such Work Order or as soon thereafter
as reasonably possible. Upon receiving such written notice
from DIDAX, PK shall select one of the following options and
shall so notify DIDAX in writing:
13.7.1 PK may agree that any licenses to such Work Order
that PK may receive under this Section 13 shall be
subject to such DIDAX Third Party Agreements and the
limitations imposed thereby.
13.7.2 PK may specifically request that DIDAX immediately
discontinue such Work Order, in which case PK shall
have no further rights or licenses to such Work Order
under this Agreement and shall not be charged under
this Agreement for DIDAX' services in performing such
Work Order after the date of the written notice. The
foregoing sentence shall not in any way operate to
prevent DIDAX from continuing to perform such Work
Order after the date of the written notice. The
foregoing sentence shall not in any way operate to
prevent DIDAX from continuing to perform such Work
Order for its own purposes and at its own expense,
and possessing all rights, interests, and ownership
therein.
13.7.3 PK may specifically request that DIDAX perform the
Work Order in such a way that any licenses or rights
to such Work Order that PK may receive under this
Section 13 will not be subject to the limitations of
such DIDAX Third Party Agreements, in which case
DIDAX and PK shall negotiate in good faith to execute
a new Work Order that will satisfy PK's request and
under which PK shall assume all additional costs and
liabilities of DIDAX performing such Work Order so as
to satisfy PK's request.
14. LICENSES AND PROPRIETARY RIGHTS
14.1. SOFTWARE LICENSE. DIDAX grants PK, to the extent permitted by
applicable agreements, a nonexclusive, nontransferable license
to use, during the Term of this Agreement, all software that
DIDAX develops for use in connection with the PK Web Site
and/or the PK System (other than individual user software and
client software which shall be licensed separately and
directly to Subscribers under the DIDAX subscriber agreement).
Such software may be used only as part of the PK System and/or
the PK Web Site, and may only be installed and executed on
computer equipment owned or controlled by DIDAX, located at
Data Centers maintained by DIDAX, and/or otherwise approved in
writing by DIDAX, except that such software as applicable may
be installed on desktop workstations and laptop computers of
PK directors and paid staff.
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14.2. THIRD PARTY SOFTWARE. DIDAX grants PK, to the extent
permitted by applicable agreements, a nonexclusive,
nontransferable license to use, during the Term of this
Agreement, any third party software that is incorporated into
the PK Web Site and/or the PK System.
14.3. PROMISE KEEPERS DATA. PK grants DIDAX a license, during the
Term of this Agreement, to upload, reformat, copy, provide
access to, distribute to Subscribers, and otherwise use any
databases, programs, or other data provided or developed by
Promise Keepers and submitted to DIDAX for inclusion in the PK
Web Site and/or the PK System (hereinafter "PK Data"). Use of
such data shall be limited to the extent necessary to achieve
the purposes of the PK Web Site and/or the PK System.
14.4. DIDAX DATA. PK recognizes that, apart from the services
provided by DIDAX to PK under this Agreement, DIDAX may from
time to time make available on or through the PK Web Site, as
approved by PK, databases, programs, and/or other data,
information, or content created, provided, licensed, and/or
developed by DIDAX (hereinafter "DIDAX Data"). PK agrees that
such DIDAX Data shall remain the property of DIDAX and/or its
licensors, and that DIDAX' provision of such DIDAX Data on or
through the PK Web Site does not in any way confer upon PK any
proprietary or possessory rights in such DIDAX Data, except as
specifically granted in other sections of this Agreement.
14.5. PK EDITORIAL CONTROL OVER PK WEB SITE. PK shall retain final
control over and complete responsibility for all substantive
content of the PK Web Page and the PK System.
14.6. RESERVATION OF RIGHTS. Apart from the licenses granted
expressly herein, each party reserves to itself all ownership,
copyrights, patents, trade secrets, and other rights in any
data, information, programs, or other items it provides or
makes available to the other party in connection with the
relationship established by this Agreement. No grant or other
transfer of rights shall be implied from the terms of this
Agreement. PK shall retain all rights, title, and interest
(including but not limited to any copyrights, patent rights,
or other intellectual property rights) in the data,
information, and other items that it provides to DIDAX for
inclusion in the PK Web Site. DIDAX shall retain all rights,
title, and interest (including but not limited to any
copyrights, patent rights or other intellectual property
rights) in the data, information, programs, and other items
that it provides to PK and/or PK Constituents, or includes in
the PK Web Site, the DIDAX Web Site, and/or the Christian
Community Web Site, under this Agreement. DIDAX shall retain
all rights, title, and interest (including but not limited to
any copyrights, patent rights or other intellectual property
rights) in any derivative works that it prepares for or on
behalf of PK using data, information, and/or other items
provided by PK, unless and until PK shall have fully
compensated DIDAX pursuant to this Agreement for DIDAX'
services in preparing such derivative works.
14.7. SOFTWARE REUSE. PK acknowledges that any software developed
by DIDAX under this Agreement may be reused by DIDAX in any
manner which does not disclose confidential
Page 16 of 20 Promise Keepers/DIDAX Agreement
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17
information of PK or imply sponsorship of other DIDAX products
by PK without prior written authorization.
14.8. CONFIDENTIAL INFORMATION. PK and DIDAX agree to fully respect
and protect each parties' respective (1) confidential,
proprietary, and/or trade secret information, including but
not limited to DIDAX' pricing information; (2) intellectual
property rights; and (3) confidentiality and/or intellectual
property obligations to third parties. Each party agrees to
take reasonable measures, including at least the measures the
party normally takes to protect its own confidential
information, to preserve the confidentiality of any
confidential information received from the other party.
Neither party will convey any confidential, proprietary,
and/or trade secret information of the other party to any
third party without the prior written consent of the
proprietor party.
Each party shall make every reasonable effort to identify
information as confidential or non- confidential at the time
of disclosure to the other party. Notwithstanding the
foregoing sentence, each party shall treat all information
disclosed by the other party, unless such information is
provided by PK for inclusion in the PK Web Site, as
Confidential Information under this Agreement for no less than
sixty (60) days following the completion of any project during
which one party has disclosed information to the other party.
Within this sixty (60) day period, the proprietor party shall
identify in writing to the recipient party the information
that is Confidential Information. After this sixty (60) day
period has expired, any information not identified as
Confidential Information under the preceding sentence shall no
longer be considered Confidential Information under this
Section 14.8.
Upon termination of this Agreement, unless superseded by a
subsequent written agreement, each party, at the discretion of
the proprietor party, shall return or destroy all documents,
computer files, and other items that contain or embody
confidential information of the other party, except as
expressly provided herein. The parties hereby agree that
information regarding the pricing and rates offered to PK by
DIDAX under this Agreement is included in the confidential
information protected under this Section.
15. WARRANTIES; INDEMNIFICATION
15.1. SOFTWARE WARRANTIES. DIDAX warrants that all software
developed by DIDAX as part of the PK System, in the form
installed by DIDAX: (1) will not infringe any U.S. copyrights,
patents, or trade secrets of any third party; and (2) will not
contain any undocumented code, such as a virus, worm or Trojan
horse, designed to disable, erase, or otherwise harm programs,
data, or equipment. DIDAX represents, and PK hereby
acknowledges, that the PK System developed and provided by
DIDAX includes Lotus Notes(TM), that Lotus Notes(TM) may be
used only to access the PK System and PK Web Site, and does
not constitute the complete Lotus Notes(TM) product, and that
Lotus Notes(TM) is subject to the copyright and other
proprietary rights of Lotus Development Corporation and its
licensors.
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15.2. DISCLAIMER. OTHER THAN THE WARRANTIES STATED IN THE PRECEDING
PARAGRAPH, DIDAX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
15.3. EXCLUSIVE REMEDIES. As PK's exclusive remedies for any breach
of warranty under this Agreement, DIDAX agrees to act as
promptly as commercially reasonable to provide a revised
version of the software that cures the breach, or to acquire
rights that permit continued use of a version that would
otherwise infringe, and also to indemnify PK against any third
party claims or suits alleging infringement in breach of the
foregoing infringement warranty. DIDAX' obligation of
indemnity is conditioned on PK's giving prompt notice of any
claim to be indemnified, providing reasonable information and
other assistance to DIDAX, permitting DIDAX to control the
defense of the claim, and mitigating damages as feasible.
15.4. MUTUAL INDEMNIFICATION. DIDAX shall defend, indemnify, and
hold harmless PK and its officers, directors, agents,
affiliates, distributors, franchisees, and employees from any
and all third party claims, demands, liabilities, costs, or
expenses, including reasonable attorneys' fees, where it is
alleged that DIDAX' inclusion of DIDAX Data in the PK Web Site
pursuant to Section 14.4 of this Agreement infringes the
proprietary rights of a third party. PK shall defend,
indemnify, and hold harmless DIDAX and its officers,
directors, agents, affiliates, distributors, franchisees, and
employees from any and all third party claims, demands,
liabilities, costs, or expenses, including reasonable
attorneys' fees, where it is alleged that PK's provision of PK
Data to DIDAX for inclusion in the PK Web Site or the
Christian Community Web Site pursuant to Section 14.3 of this
Agreement infringes the proprietary rights of a third party.
This obligation of indemnity is conditioned on the
non-indemnifying Party giving prompt notice of any claim to be
indemnified, providing reasonable information and other
assistance to the indemnifying Party, and mitigating damages
as feasible.
16. MISCELLANEOUS
16.1. DISPUTE RESOLUTION. Both parties desire to avoid dissipating
resources on wasteful litigation and therefore agree to
resolve disputes privately by good faith negotiation where at
all possible. Any dispute which the parties cannot resolve by
negotiation shall be submitted to Christian mediation, and if
mediation fails, arbitration, under the rules of the Institute
for Christian Conciliation, or any comparable entity agreed
upon in writing by the parties. Any arbitration award issued
by the mediator shall be final, binding, and enforceable in
any court of competent jurisdiction.
16.2. NO CONSEQUENTIAL DAMAGES. As a further incentive to avoid
litigation, the parties agree that neither party shall be
liable to the other party for consequential, indirect,
special, or incidental damages in connection with the
transaction contemplated by this Agreement, even if advised of
the possibility of such damages.
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16.3. NON-ASSIGNMENT. PK and DIDAX acknowledge that under this
Agreement, neither party's benefits nor its responsibilities
are assignable or delegable without the prior written consent
of the other party.
16.4. TAX STATUS. DIDAX acknowledges that Promise Keepers is a
tax-exempt entity and agrees to consider in good faith any
reasonable modification to this Agreement that is appropriate
to maintain Promise Keepers' tax-exempt status.
16.5. FORCE MAJEURE. The parties shall not be liable for any delay
or failure to carry out their respective obligations if such
delay or failure is due to any cause beyond the control of the
parties, including without limitation restrictions of law or
regulations, labor disputes, acts of God, or mechanical or
electronic breakdowns.
16.6. NOTICES. Notices under this Agreement shall be sufficient if
personally delivered, delivered by a major commercial
overnight delivery courier service, sent by facsimile, or
mailed by U.S. mail, to a party at its address set forth below
or as amended by notice pursuant to this Section. Unless
actually received earlier, notices shall be deemed received
five (5) days after deposit in the U.S. mail or one (1) day
after being transmitted by overnight delivery courier service
or by facsimile.
Notices to DIDAX: DIDAX, L.C.
0000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer and
Vice President of Finance
Fax No.: 000-000-0000
Xxxxxx & Grange, P.C.
Copy to: 0000 Xxxxxxxxxx Xxxxx, 0xx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx XX, Esq.
Fax No.: 000-000-0000
Notices to Promise Keepers: Promise Keepers, Inc.
Xxxx Xxxxxx Xxx 000000
Xxxxxx, XX 00000-0000
Attn: Xx. Xxxxx Xxxxxxxxx
Vice President for Administration
Fax No.: 000-000-0000
Promise Keepers, Inc.
Copy to: Xxxx Xxxxxx Xxx 000000
Xxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxx, Esq.
In-house Counsel
Page 19 of 20 Promise Keepers/DIDAX Agreement
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20
Fax No.: 000-000-0000 or 000-000-0000
16.7. INDEPENDENT CONTRACTORS. Nothing in this Agreement shall be
construed to make either party an agent, joint venturer, or
partner of or with the other party, and no party shall have
the right or authority to legally bind the other party in any
manner.
16.8. GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Virginia.
16.9. AMENDMENTS. This Agreement may be amended only by a writing
executed by both parties.
16.10. HEADINGS. The headings and captions in this Agreement are for
convenience of reference only and shall not define, limit, or
expand any of the terms or provisions hereof.
16.11. COUNTERPARTS. This Agreement may be signed in counterparts,
and each counterpart shall be a part of the same whole.
16.12. CONCLUSION DATE OF INITIAL TERM. The parties mutually agree
that the Initial Term, as defined in Section 2.4 of this
Agreement, shall conclude on __________________________ (the
"Conclusion Date").
NOW, THEREFORE, THE PARTIES HERETO ACKNOWLEDGE THAT THEY HAVE READ THIS
AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS. IN WITNESS
WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE EXECUTED BY THEIR DULY
AUTHORIZED REPRESENTATIVES.
PROMISE KEEPERS, INC. DIDAX, L.C.
By: /s/ XXXXX XXXXXXXXX By: /s/ XXXXXX X. XXXXXX
------------------------------ ------------------------------
Xx. Xxxxx Xxxxxxxxx Xx. Xxxxxx X. Xxxxxx
Vice President for Administration Chairman / Chief Executive Officer
Page 20 of 20 Promise Keepers/DIDAX Agreement
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EXHIBIT/ATTACHMENT A
TO AGREEMENT FOR PROVISION OF
WORLD WIDE WEB HOSTING AND DEVELOPMENT AND RELATED SERVICES
BETWEEN PROMISE KEEPERS, INC. AND DIDAX, L.C.
(EXECUTED MARCH ___, 1996)
For purposes of Section 2.7, Section 7, and Section 13 of the Agreement for
Provision of World Wide Web Hosting and Development and Related Services
Between Promise Keepers, Inc. and DIDAX, L.C. executed March ___, 1996
(hereinafter "Agreement"), the PK Applications, as defined in Section 2.7 of
the Agreement, as of the Date of Execution of the Agreement, shall consist of
the following operational applications, templates, and databases in the form in
which they exist and have been approved by Promise Keepers, Inc. ("PK") as of
this ______________ day of March, 1996 (the "Operative Date").
- PK Mail template
- PK Discussion template
- PK Name and Address Book template
- PK Volunteer Tracking template
- PK Volunteer Conference Manual database
- PK Prayer/Praise/Encouragement database
- PK Lost and Found database
- PK Classified Ads database
- PK Internal Job Posting database
- PK Automated Budget System application
Copies of these PK Applications, in the form in which they exist and have been
approved by PK as of the Operative Date, have been deposited, and shall be
stored for one (1) year following termination of the Agreement, in
computer-readable format in the possession of the following:
Xxxxxxx X. Xxxxxx, Esq. Xxxxxx X. Xxxxxx XX, Esq.
Promise Keepers, Inc. Xxxxxx & Grange, P.C.
Post Office Box 103001 0000 Xxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000-0000 XxXxxx, Xxxxxxxx 00000
000-000-0000 (telephone) 000-000-0000 (telephone)
000-000-0000 (facsimile) 000-000-0000 (facsimile)
000-000-0000 (facsimile)
22
[PROMISE KEEPERS LETTERHEAD]
VIA FAX (000)000-0000 AND FIRST CLASS U.S. MAIL
February 10, 1997
Xx. Xxxxxx X. Xxxxxx
Chairman & CEO
Didax
0000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
RE: PK/DIDAX CONTRACT MODIFICATION
Dear Xxx:
This is in response to your letter of February 3, 1997 and confirms our
agreement with respect to the modification of the PK/Didax contract, Section
11.2 as set forth in your letter, a copy of which is attached hereto.
Sincerely,
/s/ XXXXXXX XXXXXXXX
Xxxxxxx Xxxxxxxx
Vice President
cc: Xxx Xxxxxx
Xxxxxx X'Xxxxx
Xxxxxx Xxxxxx
23
[DIDAX LETTERHEAD]
February 3, 1997
Xx. Xxxxxxx Xxxxxxxx
Vice President
Promise Keepers
0000 Xxxxx
Xxxxxx, Xxxxxxxx 00000
Dear Xxxx,
This letter is in response to your request to remove the exclusivity of DIDAX
providing Promise Keepers employees with internet access. For the benefit of
the ministry in its desire to move from individual dial-up accounts to an
overall corporate account, we agree to remove the exclusivity regarding
internet access for PK employees.
Regarding the PK/DIDAX contract, this requires a modification to the last
sentence of Section 11.2 as follows:
CURRENT SENTENCE:
"In all such area codes, PK shall not utilize any Competitive Services for
networking among its STAFF AND/OR user base, EXCEPT THAT PK STAFF MAY MAINTAIN
PERSONAL SUBSCRIPTIONS TO OTHER SERVICES FOR INFORMATIONAL PURPOSES OR USES."
MODIFIED SENTENCE:
"In all such area codes, PK shall not utilize any Competitive Services for
networking among its user base."
PLEASE NOTE THIS DOES NOT CHANGE THE EXCLUSIVITY AGREEMENT AS IT RELATES TO PK
CONSTITUENTS OR ANY OTHER TERMS OF THE CONTRACT.
If you agree with the above modification to the last sentence in Section 11.2
of the contract, please respond in writing to confirm we are in agreement.
As always, it is our privilege to serve PK. As the new conference season
approaches, we are excited to see how the Lord will work through PK this year.
Please call me at (000)000-0000 if you have any questions.
Sincerely,
/s/ XXXXXX X. XXXXXX
Xx. Xxxxxx X. Xxxxxx
Chairman & CEO
RCV:cm
cc:Xxx Xxxxx
