EXHIBIT 5.8
This Agreement effective the 21st day of June, 1999.
BETWEEN:
XXXXXXXXXXX.XXX Inc.
000 - 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx
X0X 0X0
("COMMUNICATE")
AND:
XXXxxxxxx.xxx, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx X-0
Xxxxxxxxx, XX, X0X 0X0
("PCS")
WHEREAS:
A. COMMUNICATE is a strategic Internet solutions company which provides online
strategic, creative, design, programming and application development
services.
B. PCS wishes to retain the services of COMMUNICATE to design and develop a
World Wide Web Internet Site specifically for PCS at xxx.xxxxxxxxx.xxx (the
"Site").
C. The parties wish to set out in this agreement (the "Agreement") their
mutual obligations with respect to the design and development of the Site.
THIS AGREEMENT WITNESSES that, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Incorporation by Reference
1.1 The foregoing recitals and the attached schedules form an integral part of
this Agreement.
2. Obligations of COMMUNICATE
2.1 COMMUNICATE shall design and develop the Site for PCS (the "Project") with
participation by PCS & opportunities for testing, acceptance, modifications
and approvals by PCS at each stage as described in the proposal (as amended
from time to time, the "Proposal") for PCS dated June 7, 1999, and on the
PCS extranet, copies of which are attached hereto and incorporated herein
as Schedule "A," with changes to the specifications, deliverables, timeline
and budget to be mutually agreed upon.
2.2 COMMUNICATE shall deliver each deliverable at the times and in the manner
specified in the Proposal.
2.3 PCS shall have the time allotted in the Proposal, or if no time is
specified, a reasonable period, to inspect and test each deliverable when
received to determine if it conforms to the specifications set forth in the
Proposal. If any deliverable fails to conform to the specifications, PCS
shall give COMMUNICATE notice of the defect and COMMUNICATE shall then have
the time allotted in the Proposal, or if no time is specified, a reasonable
period, to remedy such failure and redeliver to PCS. If COMMUNICATE is
unable to correct the deliverable to conform to the specifications within
three (3) attempts, PCS may terminate this Agreement and receive a refund
of all monies paid for that deliverable.
3. Obligations of PCS
3.1 PCS shall:
(a) supply COMMUNICATE promptly with such information and content as
COMMUNICATE may reasonably require, in a mutually agreed upon
electronic format; and
(b) pay COMMUNICATE in accordance with section 6 herein.
4. Proprietary Rights
4.1 PCS grants to COMMUNICATE the non-exclusive right to produce and reproduce
on and for the Site any material protectable by copyright which PCS
provides to COMMUNICATE solely for the purpose of the Project and to use
any trademarks approved by PCS for use on the Site.
4.2 The parties agree as follows:
(a) as between COMMUNICATE and PCS, PCS shall *own all right title and
interest in and to any materials provided by PCS for incorporation in
the Site, including, but not limited to, text, graphics, or materials
generated in any form or media and any materials derived
by COMMUNICATE from any materials provided, and owned, by PCS,
including through the conversion of materials to a format ready for
display on the Site (collectively, the "Work"). PCS hereby grants to
COMMUNICATE a non-exclusive, non-transferable, limited license,
revocable at will by PCS, to use the Work under the terms and
conditions of this Agreement solely in connection with the
establishment of the Site;
(b) COMMUNICATE agrees to insert into the Work such copyright, trademark
and other proprietary rights notices as PCS may request from time to
time. In addition, COMMUNICATE agrees that it will do and perform any
acts reasonably necessary or appropriate, including making assignments
and executing and delivering other documents, in order to enable PCS
to register the copyright in the Work and to evidence and enforce any
legal rights PCS may have as the sole and exclusive owner of the Work;
(c) notwithstanding clauses (a) and (b) above, exclusive ownership of the
Work by PCS does not include standard routines, development tools, and
programming techniques commonly employed by programmers, as well as
any underlying software code or computer programs which COMMUNICATE
creates and uses for the purposes of the Project, whether existing
prior to, or developed in connection with, this Agreement
(collectively referred to as the "Tools");
(d) COMMUNICATE hereby grants to PCS a perpetual, non-exclusive, royalty-
free, worldwide, non-transferable license to make use of any and all
such Tools which are incorporated in the Site and which are required
for the operation of the Site. Further, COMMUNICATE hereby grants to
PCS a perpetual, non-exclusive, royalty-free, non-transferable license
to modify or enhance the Tools for the purposes of the foregoing.
COMMUNICATE hereby reserves for itself all rights in and to the Tools
not expressly granted to PCS in the immediately foregoing sentence.
In no event shall PCS use any trademarks or service marks of
COMMUNICATE without COMMUNICATE's prior written consent. Unless
otherwise agreed to in writing by COMMUNICATE, any reproduction,
distribution, selling, disclosing, licensing or sublicensing of all or
any portion of any Tools, or any underlying software code or computer
programs which COMMUNICATE creates and uses to develop the Site, shall
automatically terminate the foregoing license. Nothing in this
paragraph shall affect PCS's ownership of the copyright and other
rights with respect to the Work;
(e) COMMUNICATE waives its rights, if any, under applicable law with
respect to "moral rights" or any similar rights in the Work. In
addition, COMMUNICATE hereby grants to PCS a perpetual, royalty-free,
worldwide, non-transferable right to modify the Work in any manner,
regardless of the effect on the Work, and to display the Work with or
without attribution to COMMUNICATE (except as otherwise agreed in
writing by the parties). Notwithstanding anything in this paragraph,
any alteration of the Site to include any obscene or illegal material
shall automatically terminate the license granted to PCS under
paragraph (d) above;
(f) nothing in this section 4.2 shall grant to PCS any right to sell,
license or disclose all or any portion of any Tools to any person or
party that is not an employee of PCS. For clarification purposes
only, PCS shall not allow a competitor of COMMUNICATE to modify or
enhance the Tools without COMMUNICATE's prior written consent; and
(g) nothing in this section 4.2 shall grant to PCS any claim to, or
ownership in, any third party material (the "Third Party Material")
used by COMMUNICATE in the Project.
4.3 PCS acknowledges that if it wishes to produce or reproduce Third Party
Material in any media other than the Site, PCS shall be responsible for
negotiating any additional license fees directly with the owner of such
Third Party Material and shall bear any costs for acquiring such rights.
4.4 Subject to section 9.6(b) hereof, COMMUNICATE shall, upon request from PCS
or on the termination of this Agreement, return any Work which,it receives
from or produces for PCS under the terms of this Agreement.
4.5 COMMUNICATE will not sell, license, disclose, or otherwise provide any
unique features of the Site to any direct competitors of PCS whose primary
business is web-based computer maintenance, while COMMUNICATE is doing
ongoing work, including work under this Agreement, for PCS and for a period
of six months thereafter without prior written consent from PCS. This
restriction does not apply to features of the Site which are in the public
domain.
5. Representations, Warranties & Indemnities
5.1 PCS represents and warrants as follows:
(a) PCS is the owner of copyright to material supplied to COMMUNICATE for
use on the Site, or has acquired the necessary permission from the
copyright owner or owners of material of which it is not the owner to
sublicense the rights contemplated herein for use on the Site, and
either owns or has been licensed to use any trademarks supplied to
COMMUNICATE for the purposes contemplated by this Agreement;
(b) to the best of its knowledge, none of the material which it supplies
to COMMUNICATE or the trademarks which it approves for use on the Site
or in Site-related promotions will infringe or breach the proprietary,
statutory or contractual rights of any third party;
(c) to the best of its knowledge, any information which it supplies to
COMMUNICATE for publication on the Site and which purports to be
factual shall be accurate and true in all material respects;
(d) any software which it provides to COMMUNICATE for conversion and use
on the Site shall be free of material defects and have been screened
for viruses by a current, commercially-available anti-virus software
program; and
(e) PCS agrees to indemnify, defend and hold harmless COMMUNICATE, its
directors, officers, employees and agents, and defend any action
brought against same with respect to any claim, demand cause of
action, debt or liability, including reasonable legal fees, to the
extent that such action is based upon a claim that:
(i) if true, would constitute a breach of any of PCS's
representations, warranties or agreements hereunder;
(ii) arises out of the negligence or willful misconduct of PCS; or
(iii) any of the Work to be provided by PCS hereunder or other
material on the Site infringes or violates any rights of third
parties, including, without limitation, rights of
publicity, rights of privacy, patents, copyrights, trademarks,
trade secrets and/or licenses.
5.2 COMMUNICATE represents and warrants as follows:
(a) COMMUNICATE is a company duly incorporated under the laws of British
Columbia;
(b) COMMUNICATE is the sole owner of copyright to any Work including
material which is not supplied or approved by PCS but which
COMMUNICATE contributes to the design of the Site or otherwise uses on
the Site, or has acquired the necessary permission from the copyright
owner or owners of material of which it is not the owner to produce or
reproduce such material in the design of the Site or otherwise use on
the Site, and either owns or has been licensed to use any trademarks
which are not supplied by PCS but which COMMUNICATE uses on the Site;
(c) to the best of its knowledge, none of the Work including material or
software which is not supplied or approved by PCS but which
COMMUNICATE uses or produces or reproduces in the development or
design of the Site will infringe or breach the intellectual property,
proprietary, statutory or contractual rights of any third party;
(d) to the best of its knowledge, any information which is not supplied by
PCS but which COMMUNICATE uses on the Site and purports to be factual
shall be true and accurate in all material respects;
(e) any software which it provides to PCS for conversion and use on the
Site shall be free of any material defects and have been screened for
viruses by a current, commercially-available anti-virus software
program;
(f) the performance of its services shall be of the highest professional
quality and shall be done in accordance with applicable laws;
(g) the deliverables, including the Work and Tools, shall perform as set
forth in the specifications in the Proposal;
(h) the deliverables, including the Work and Tools, shall record, store,
process and present calendar dates fully in and after January 1, 2000
in the same manner and with the same functionality as before December
31, 1999, that COMMUNICATE has successfully tested each such
deliverable to ensure that its operation will not be affected by
either time or date changes or leap years, and that the *deliverables
will correctly process date-related information and associated date
calculations for dates in the range of calendar years 1990 through
2150;
(i) the deliverables, including the Work and Tools, shall not infringe or
misappropriate any patent, copyright, trademark, trade secrets or
other intellectual property rights of any third party, or violate this
Agreement or applicable law. COMMUNICATE shall defend, indemnify and
hold harmless PCS from all claims, losses, damages, expenses and
liabilities arising from a breach or alleged breach of this subsection
(i); and
(j) COMMUNICATE agrees to indemnify, defend and hold harmless PCS, its
directors, officers, employees and agents, and defend any action
brought against same with respect to any claim, demand, cause of
action, debt or liability, including reasonable legal fees, to the
extent that such action arises out of the gross negligence or willful
misconduct of COMMUNICATE.
6. Payment
6.1 COMMUNICATE shall invoice PCS for the amount specified in the COMMUNICATE
Proposal as follows:
(a) $50,000 CAD upon signing of this contract; and
(b) the remaining development budget to be invoiced at various stages
based on *deliverables, milestones and budget to be mutually agreed
upon during the initial planning stage and incorporated in the
Proposal.
6.2 PCS agrees that any consents or approvals will not be unreasonably withheld
or delayed. If PCS has not provided its approval or change requests
within two (2) weeks of a request by COMMUNICATE, PCS will be deemed to
have consented.
6.3 All invoices shall be due and payable upon receipt. Interest will accrue
on any unpaid amounts after 30 days at the rate of 2% per month until fully
paid.
7. Limitation of Liability
7.1 COMMUNICATE shall not be responsible to PCS for any damages or losses,
whether direct, indirect or consequential, arising from a disruption,
delay, defect or failure of the server which provides the Internet
connection for the Site.
8. Confidentiality
8.1 "Confidential Information" shall mean any confidential or proprietary
information of either party, whether or not developed by the other,
including but not limited to preexisting or new information relating to all
ideas, designs, methods, discoveries, improvements, products or other
results of consulting services, trade secrets, product data and
specifications, property rights, business affairs, product development,
customer information or employee information. "Confidential Information"
shall not include information available to the public other than through
the wrongful act or neglect of the recipient of that information under this
Agreement, or available to a party from a third party which is not
violating an obligation of confidence.
8.2 Each party acknowledges and agrees that it (and its subcontractor(s), if
any), in performing its obligations under this Agreement, shall have access
to or be directly or indirectly exposed to each other's Confidential
Information. Each party shall hold confidential all Confidential
Information and shall not disclose or use such Confidential Information,
except as required by applicable law, without the express written consent
of the other party. Each party shall use reasonable measures and
reasonable efforts to provide protection for the other party's Confidential
Information, including measures at least as strict as those each party uses
to protect its own Confidential Information. Such measures shall include,
without limitation, requiring employees and
independent contractors to sign a non-disclosure agreement before obtaining
access to the other party's Confidential Information.
8.3 Each party agrees not to use the other party's Confidential Information
other than to meet its obligations under this Agreement.
9. Termination
9.1 Either party may, at its option, terminate this Agreement, effective
immediately, if the other party materially defaults on its obligations
hereunder and fails to cure such default within fifteen (15) days after
receipt of notice of such default.
9.2 The right to terminate this Agreement in accordance with paragraph 9.1
shall not be an exclusive remedy and either party shall be entitled to
damages arising out of any breach of this Agreement or to any other remedy
available at law or in equity.
9.3 The parties may also terminate this Agreement upon such terms and
conditions as may be mutually agreed upon.
9.4 PCS may terminate this Agreement without cause on thirty (30) days prior
written notice upon payment for all unpaid invoices and uncompensated
expenses through the date of termination. Such payment by PCS to
COMMUNICATE upon termination shall include a prorata payment based on all
work done by COMMUNICATE towards the completion of a milestone but which
milestone is not completed prior to termination.
9.5 Either party may terminate this Agreement upon completion of the initial
planning stage for any reason or no reason, including but not limited to
the parties failure to agree to the specifications, timeline and budget for
the remaining Phases.
9.6 Upon termination:
(a) COMMUNICATE shall cease using any of PCS's trademarks, marketing
materials or stationery;
(b) provided that PCS has paid to COMMUNICATE any amounts owing for
services rendered and disbursements incurred under this Agreement,
COMMUNICATE shall return to PCS within 10 days any PCS products or
materials in COMMUNICATE's possession and delete any electronic copies
of such products or materials from its system except for any
electronic copies of such products or materials which have been
purchased and paid for or properly licensed for COMMUNICATE's account;
(c) COMMUNICATE shall refund to PCS any monies which COMMUNICATE may have
received for work which is not delivered to PCS; and
(d) the rights and licenses granted under this Agreement to PCS shall
survive termination.
10. Limitation of Liability
10.1 COMMUNICATE shall have no liability under this Agreement or otherwise for
consequential, exemplary, special, incidental, or punitive damages and
COMMUNICATE's liability under this Agreement will be limited to the amount
actually paid to COMMUNICATE by PCS under this Agreement. This limitation
applies to all causes of action in the aggregate, including without
limitation, breach of contract, breach of warranty, negligence, strict
liability, misrepresentations, and other torts.
11. Governing Law
11.1 This Agreement shall be governed by and interpreted in accordance with the
laws of British Columbia and Canada and the parties irrevocably attorn to
the jurisdiction of the courts of British Columbia in respect to any and
all matters arising out of this Agreement.
12. Notices
12.1 Any notices or communications required to be given shall be made in
writing and either delivered to the recipient at the address described on
the first page of this Agreement and sent by telecopier and e-mail as
follows:
If to COMMUNICATE: (000) 000-0000 If to PCS: (000) 000-0000
email: xxxxx@xxxxxxxxxxx.xxx email: xxxxx.xxxxxxx@xxxxxxxxx.xxx
---------------------
Attention: Xxxxx Xxxx Attention: Xxxxx Xxxxxxx
unless otherwise advised in writing by the intended recipient. If notice
is delivered by courier or personal delivery, it shall be deemed to have
been given upon delivery. If notice is sent by telecopier or email, it
shall be deemed to have been given at one business day after the
transmission was sent and receipt confirmed electronically.
13. Miscellaneous
13.1 Time shall be of the essence of this Agreement and no extension or
variation of this Agreement or any obligation hereunder shall operate as a
waiver of this provision.
13.2 The parties agree that this Agreement will be effective following any
change of name of PCs.
13.3 COMMUNICATE shall not have the power to bind PCS nor shall COMMUNICATE
make any such representation and PCS shall not have the power to bind
COMMUNICATE nor shall PCS make any such representation. COMMUNICATE's
relation to PCS shall be that of an independent contractor and not that of
a partner, employee or joint venture.
13.4 The waiver by either party of any breach or failure to enforce any of the
terms and conditions of this Agreement at any time shall not in any way
affect, limit or waive either party's rights thereunder to enforce and
compel full performance with every term and condition of this Agreement.
13.5 This Agreement shall be binding upon and inure to the benefits of the
successors and assigns of the parties. Neither party may assign its rights
or obligations hereunder without the prior consent of the other, except
that the sale of substantially all of the stock or assets of either or the
merger of
either shall not be deemed an assignment which requires the other's
consent, provided prompt notice of any such sale or merger shall be
given to the other.
13.6 All provisions of this Agreement relating to PCS warranties,
confidentiality, non-disclosure, proprietary rights, limitation of
liability, indemnification obligations and payment obligations shall
survive the termination or expiration of this Agreement.
13.7 The provisions of this Agreement shall be severable. Should any portion
of this Agreement be held void, invalid or inoperative, the remaining
provisions shall not be affected and shall continue in effect provided
that such severance will not materially alter the substance of this
Agreement. All void, invalid or inoperative provisions shall be deemed
modified to the least extent necessary to remedy such provisions
enforceability.
13.8 This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and all prior
agreements or understandings with respect thereto are superseded hereby.
No amendment or modification hereof shall be binding unless in writing
and duly executed by the parties.
13.9 This Agreement may be executed in multiple counterparts, all of which
taken together shall constitute one single Agreement between the
parties.
IN WITNESS WHERE the authorized signatories of the parties have executed this
Agreement as of the day and year first above mentioned.
XXXXXXXXXXX.XXX, Inc. XXXxxxxxx.xxx, Inc.
_______________________________ ________________________________
Authorized Signatory Authorized Signatory
Schedule A
XXXXXXXXXXX.XXX PROPOSAL DATED JUNE 7, 1999
-------------------------------------------
and PC SUPPORT PROJECT EXTRANET
-------------------------------
The proposal dated June 7, 1999 is, and is intended to be, general in nature.
COMMUNICATE and PCS will develop more detailed deliverables, specifications,
timelines and budgets, which, upon being agreed to in writing, will
automatically be added to and form a part of this Agreement.
000-000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx
X0X 0X0
xxxxxxxxxxx.xxx
telephone: 000.000.0000
fax: 000.000.0000
www:xxxx://xxx.xxxxxxxxxxx.xxx
CONTRACT ADDENDUM
DATE: July 19, 1999
CLIENT: XXXxxxxxx.xxx
PROJECT CODE: PCS/CENTER
PREPARED By: Xxxx Xxxxxxx
--------------------------------------------------------------------------------
ATTN: Xxxxx Xxxxxxx
TOTAL PAGES: 11
This fax transmission should consist of this cover page, an addendum to our
contract agreement, the project plan/timeline, and the feature set v1.1
document. If any of these documents were not received, please call Xxxx Xxxxxxx
at 587-2142.
Also, here is the breakdown of the current deposit status:
Corporate Website $ 20,000.00
Flow Diagrams $ 5,000.00
Online Marketing of Corporate Site $ 1,500.00
T&M for work on PCSupport Center to date $ 13,664.17
-------------------------------------------------------------
TOTAL TO DATE $ 40,164.17
Initial deposit $(50,000.00)
Deposit Remaining $ (9,835.83)
Let me know if you require any clarification, otherwise, fax back to my
attention at 687-2192.
Xxxx Xxxxxxx
Account Executive
ADDENDUM - JULY 19, 1999.
This is an addendum to the Agreement (as per schedule A) effective June 21, 1999
between Xxxxxxxxxxx.xxx and PC Support.
PC Support approves proceeding with the budget below to deliver a XXXxxxxxx.xxx
web site with minimal functionality (see attached Feature Set v1.1 and Project
Plan.mpp). Functional scope decisions that deviate from or expand on this
feature set will be approved on an item by item basis, and Xxxxxxxxxxx.xxx will
present budget revisions and other impact statements as and if the scope
increases.
Development will proceed upon delivery of the initial deposit of $60,164($70,00
as per below, minus remaining deposit of $9836). Payment will then continue as
per the payment schedule below, drawing partially from new invoices, and
partially form the deposit.
Budget Breakdown
----------------
Low High
Project Management $ 28,600 $ 33,000
Engineering $ 93,600 $108,000
Site design & Development 88,400 $102,000
QA & Development $ 52,000 $ 60,000
Total $262,600 $303,000
Payment Schedule
----------------
Project cost Date Invoiced Deposit Paid
Commencement 19/Jul $70,700.00 $ 70,700.00
Deposit
Payment 1 2/Aug $ 45,133.33 $58,916.67 $ 58,916.67
Payment 2 16/Aug $ 45,133.33 $47,133.33 $ 47,133.33
Payment 3 30/Aug $ 45,133.33 $35,350.00 $ 35,350.00
Payment 4 13/Sep $ 45,133.33 $23,566.67 $ 35,350.00
Payment 5 27/Sep $ 45,133.33 $11,783.33 $ 33,350.00
Payment 6 11/Oct $ 57,133.33 $ 0.00 $ 45,350.00
Total $282,800.00 $282,800.00
XXXXXXXXXXX.XXX, Inc. PC Support
____________________________ ____________________________
Authorized Signatory Authorized Signatory
Date: July 19, 1999 Date: July 20, 1999
