EXHIBIT 10.10
AUDIO FILE PRODUCTION SERVICES AGREEMENT
This Agreement is entered into as of July 28, 1999 by and between
xxxxxxxxxxxx.xxx, a California corporation ("AH"), and Audio Concepts a New York
general partnership ("AC").
WHEREAS, AH hosts and operates a website currently located on the
Internet at (xxx.xxxxxxxxxxxx.xxx) (the "AH Website"), through which AH encodes
certain third-party content for delivery over the Internet and distributes such
content to Internet users receiving Internet service from various Internet
service providers; and,
WHEREAS, AH has entered into an agreement with Dow Xxxxx that permits
AH to make available the "What's News-Business and Finance and World View," from
page A-1 of the print edition of the Wall Street Journal, on the AH website in a
streaming audio format; and,
WHEREAS, AC has the capability to produce audio recordings from written
text and convert those recordings into specified digital formats; and,
WHEREAS, AH is interested in retaining AC to perform such services in
connection with AH's agreement with Dow Xxxxx;
NOW THEREFORE the parties agree as follows:
1. SERVICES
AC will provide to AH the following Services:
a. TEXT FILES: Pursuant to the agreement between AH and Dow
Xxxxx, every Monday through Friday Dow Xxxxx will transmit text file versions of
the "What's News-Business and Finance and World View" from page A-1 of the print
edition of the Wall Street Journal (the "Text Files") to three electronic
mailbox addresses designated by AC.
b. TIMING: AC shall maintain a full production staff to retrieve
and download the Text Files between the hours of 2:00 a.m. and 3:00 a.m. Eastern
Standard Time ("EST"). If the Text Files have not arrived in the electronic
mailboxes by 3:00 a.m. EST, through no fault of AC, AC shall retain its full
production staff for as long as is necessary to retrieve and download the text
files when they arrive. If AC is required to maintain its production staff
beyond 4:00 a.m. EST, AC shall be entitled to Overtime, as defined in Section
2.c. of this Agreement.
c. PRODUCTION: On each day that AC retrieves and downloads Text
Files (Monday through Friday) AC shall produce an audio recording of the Text
Files and shall convert such recording to a computer-ready digital format (the
"Audio Files"), specified by AH. Once conversion of an audio recording into an
Audio File is complete, AC shall transmit such Audio Files (by way of FTP,
electronic mail, or other method specified by AH) to a computer server specified
by AH (AH shall provide AC with verification, by way of a method to be specified
by
AH, that the Audio Files were received intact and free of errors and / or
viruses and considered delivered by AC).
d. DELIVERY: AC shall transmit the Audio to a computer server
specified by AH by no later than 3:00 a.m. EST, or as soon thereafter as
practicable.
e. EQUIPMENT: AC shall provide all necessary equipment to
retrieve and download the Text Files, to produce the audio recordings of the
Text Files, to convert the audio recordings into Audio files, and to transmit
the Audio Files to the server designated by AH (AH shall provide AC with the
technical specifications necessary for AC to perform its obligations under this
Agreement, including without limitation the information required to transmit the
Audio Files to the server designated by AH).
2. PAYMENT FOR SERVICES
AH shall pay AC as specified below:
a. SETUP FEE: The one-time setup fee shall be $10,000. This fee
is due and payable upon execution of this Agreement.
b. PRODUCTION: The weekly production fee shall be $8,000 per
month. This fee is to be paid on a monthly basis and is to be received by AC a
minimum of one week prior to the start of each production month.
c. OVERTIME: If AC is required to maintain its production staff
beyond 4:00 a.m. EST, solely due to arrival of Text Files later than 3:00 a. m.,
AC shall be entitled to Overtime. Overtime shall be $400 for each additional
hour beyond 4:00 a.m. EST required to complete the retrieval and download of the
Text Files. Such Overtime charges shall be invoiced by AC to AH on a monthly
basis and AH shall pay such invoices within thirty (30) days after receipt of
invoice. AC shall send invoices under this Agreement to:
XxxxxXxxxxxx.xxx
00000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
3. INDEPENDENT CONTRACTORS
a. AC is retained by AH only for the purposes set forth in this
Agreement. The parties intend that the relationship of AC and its personnel to
AH during the term of this Agreement shall be that of independent contractors.
Nothing in this Agreement shall be deemed to create a partnership, agency, joint
venture, franchise relationship, or employer/employee relationship between AH
and AC. AC acknowledges that it is an independent contractor, is not
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an agent or employee of AH, is not entitled to any employment rights or
benefits, and is not authorized to act on behalf of AH. All persons AC furnishes
to provide Services to AH shall be the employees or subcontractors of AC and
shall be neither the employees nor agents of AH. AC shall have exclusive control
over its personnel and over the labor and employee relations, and policies
relating to wages, hours, working conditions or other conditions of its
personnel. AC shall have the exclusive right to hire, transfer, suspend, lay
off, recall, promote, assign, discipline, discharge and adjust grievances with
its personnel. Notwithstanding the foregoing, AH may at any time require AC to
remove from any AH related activity, any personnel objectionable to AH.
b. AC will be solely responsible for all salaries and other
compensation of its personnel who provide Services to AH. AC will be solely
responsible for making all deductions and withholdings from its employee's
salaries and other compensation, and for the payment of all contributions, taxes
and assessments.
4. TERM
The initial term of this Agreement shall be for the balance of the term
of AH's agreement with Dow Xxxxx, and shall thereafter be automatically renewed
for successive terms of one calendar year each if AH renews its agreement with
Dow Xxxxx, and unless earlier terminated as hereinafter provided or unless
either party gives the other written notice of non-renewal at least 30-days
prior to the end of the initial term or any renewal term.
5. CONFIDENTIALITY; OWNERSHIP OF WORK PRODUCT
a. AH "Confidential Information" shall mean all information,
whether in written, verbal, graphic, electronic or any other form, which is
disclosed to or observed by AC in the course of its performance of Services
hereunder. Confidential Information shall include, without limitation, customer
names, customer information, business plans, software, hardware or system
designs, specifications, manufacturing processes, documentation, code, and
protocols.
b. AC will treat the terms of this Agreement as AH Confidential
Information.
c. AC shall (i) use AH Confidential Information only in
connection with AC's performance of its obligations under this Agreement, and
(ii) will not disclose AH Confidential Information except to its employees,
agents, and contractors who have first agreed to be bound by the terms and
conditions of this Section and who have a need to know such Confidential
Information in connection with the performance of AC's obligations under this
Agreement. If requested by AH, AC's employees, agents and contractors who are
assigned to work on a AH project shall execute a document satisfactory to AH
acknowledging and agreeing to be bound by the terms of this Section 5. In any
case, AC shall be responsible and liable for any unauthorized disclosure,
publication or dissemination by any of AC's employees, agents or contractors of
any AH Confidential Information.
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d. All AH Confidential Information and Files in AC's possession
or under its custody or control shall be immediately turned over to AH upon the
termination of this Agreement.
e. All Audio Files, computer programs and other ideas and
materials developed, invented or discovered by AC, its employees, agents and
contractors, either solely or in collaboration with others, which result from or
are suggested by any work AC may do for AH (hereinafter collectively referred to
as the "Developments") shall be considered as a work made for hire for AH, and
will be the sole property of AH. AC agrees to assign to AH its entire right and
interest in any such Development, and will execute any documents in connection
therewith that AH may reasonably request. AC agrees to enter into agreements
with all of its employees, agents and contractors necessary to establish AH's
sole ownership in the Developments, and AC agrees to provide AH with copies of
such agreements as executed.
6. WARRANTIES
AC represents and warrants that, in its performance under this
Agreement:
a. All Services shall be performed in a workmanlike manner and on
time under the terms of this Agreement, and all work product, deliverables, and
materials created hereunder shall be in accordance with the highest industry
standards according to the applicable description and requirements for such
Services as set forth in this Agreement.
b. AC shall comply with all applicable Federal, state and local
laws, rules, regulations and orders in its performance under this Agreement.
AC's performance under this Agreement will not violate or in any way infringe
upon the rights of third parties, including proprietary information and
non-disclosure rights, or trademark, copyright, patent, or other intellectual
property rights;
c. AC is the lawful owner or licensee of all computer programs,
software, and other intellectual property used in its performance under this
Agreement; such computer programs, software, and other intellectual property
have been lawfully developed or acquired by AC and AC has the right to permit AH
access to or use of such Computer programs, software, and other intellectual
property as required by this Agreement without violating any rights of any third
party, and there currently is no actual or threatened suit by any third party
based on an alleged violation of such right by AC;
d. AC has in place an effective disaster recovery plan consisting
of one or more alternate sites to which it is capable of immediately shifting
its operations under this Agreement so as to minimize disruption to its ability
to satisfy its obligations under this Agreement.
e. Each Audio File AC creates as part of the Services provided
hereunder shall precisely and accurately represent the contents of the Text File
from which it was created. Specifically, AC warrants and represents that, in
producing the Audio Files, it shall pronounce correctly all words in the Text
Files that are contained in the Xxxxxxx III Dictionary, Web Geo,
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and Web Bio reference works (the "Reference Works"). AH shall provide AC, upon
AC's reasonable request, with a phonetic spelling of any word in the Text Files
that AC demonstrates is not contained in one of the Reference Works. If AH is
unable to provide AC with a phonetic spelling, AC shall make an educated guess
as to the word's correct pronunciation.
f. All computer programs, software, intellectual property and
Services provided hereunder are year 2000 compliant, so that when a date after
January 1, 2000 is either processed, entered into, or is intended to be
generated as a result of the operation of any such software, such software shall
not (a) fail or produce incorrect date results, or (b) cause any other programs
to fail or generate errors.
g. AC is a duly organized corporation in good standing and its
assets are free and clear of any encumbrances.
h. AC has the authority to enter into this Agreement and to
perform the Services and that upon execution of this Agreement, this Agreement
shall be a valid, binding obligation of AC, enforceable in accordance with its
terms.
7. INDEMNIFICATION
AC shall, at its own expense, defend, indemnify and hold AH and its
directors, officers, employees and agents from and against any and all claims,
demands, suits, or causes of action (hereinafter "Claims") which result or are
claimed to result in whole or in part from any act or omission of AC or its
employees, agents or contractors, or which are based upon or make the contention
that any of the materials supplied by AC to AH or used by AH in the manner
recommended by AC, in whole or in part, constitute infringement of any
trademark, trade secret, statutory copyright, patent, common law right, title or
slogan, unless the infringing material was furnished to AC by AH, or which
result from the alleged or actual violation by AC of any applicable law, statute
or regulation, or which are based upon a failure of Services to conform to the
Warranties in this Agreement. Notwithstanding the foregoing, AC shall not be
liable for damage to third parties to the extent caused solely by the active and
gross negligence of AH. The obligations of AC under this section shall be
independent of any other obligation of AC hereunder.
8. NO LIENS
No mechanics' lien, notice, claim or action thereon shall be filed by
AC, or any person or entity acting through AC, for services under this
Agreement. Where applicable, AC shall, upon request of AH, deliver to AH,
contemporaneously with any payment, recordable partial waivers of lien for any
partial payments, and recordable final waiver of lien for the final payment.
9. TERMINATION.
a. Either party may terminate this entire Agreement prior to its
expiration date, with or without good cause shown, without penalty and without
liability for damages as a result of
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such termination, upon 60 days written notice to the other. In the case of AC's
gross negligence or non-performance, AH may terminate this Agreement immediately
upon written notice to AC.
b. If this agreement between AH and Dow Xxxxx is cancelled at any
time during the Term of this Agreement, and such cancellation is not
attributable to conduct on the part of AC, this Agreement shall be cancelled
automatically as of the same date.
c. Upon termination of Services then in process, AH shall only be
liable for payment of fees earned as a result of Services actually performed
under this Agreement prior to the date of termination.
10. ADVERTISING
AC agrees that it will not use the names, service marks and/or
trademarks of AH or any of its affiliated companies, or reveal the existence of
this Agreement or its terms and conditions in any manner without the express
prior written consent of AH.
11. GENERAL
a. This Agreement shall be binding upon and inure to the benefit
of the parties and their successors and assigns; provided, however, no
assignment by either party shall be of any force except with the prior written
consent of the other party.
b. The rights and duties of the parties will be governed by the
local law of the State of California, excluding any choice-of-law rules that
would require the application of the laws of any other jurisdiction.
c. All notices required or permitted to be given by one party to
the other under this Agreement shall be deemed given (i) when delivered
personally on a business day, (ii) five days after deposit in the U.S. mail,
certified or registered, postage prepaid, (iii) the business day when delivered
if delivered by a nationally recognized courier, or (iv) the business day upon
which facsimile transmission is complete before 4 p.m., provided that such
transmission is followed by notice under one of methods "(i)" through "(iii)"
above. Notice by either party to the other shall be given at the respective
addresses set forth below or to such other address as the party to receive the
notice has designated by notice to the other party:
If to AH XxxxxXxxxxxx.xxx
00000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
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If to AC: Audio Concepts
00 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxx
Facsimile (000) 000-0000
d. If any term or provision is held invalid or unenforceable in
any respect, such invalid and unenforceable term or provision shall be amended
automatically to provide its nearest enforceable economically equivalent term or
provision. The invalidity or unenforceability of any particular term or
provision of this Agreement shall not affect the other terms or provisions
hereof, which shall continue in full force and effect.
e. SIGNATURES. This Agreement may be executed in counterparts,
which together shall constitute one and the same agreement. Each party may rely
on a facsimile signature on this Agreement, and each party shall, if the other
party so requests, provide an originally signed copy of this Agreement to the
other party.
f. The failure of either party to insist, in any one or more
instances, upon the performance of any of the terms, covenants, or conditions of
this Agreement or to exercise any right hereunder, shall not be construed as a
waiver or relinquishment of the future performance of any rights, and the
obligations of the party with respect to such future performance shall continue
in full force and effect.
g. This Agreement constitutes the complete, final and exclusive
statement of the terms of the agreement among the parties pertaining to the
subject matter hereof and supersede all prior agreements, understandings,
negotiations and discussions of the parties. No modification or rescission of
this Agreement shall be binding unless executed in writing by the party to be
bound thereby.
IN WITNESS WHEREOF, AC and AH have caused this Agreement to be executed
by persons duly authorized as of the date of first above stated.
XxxxxXxxxxxx.xxx. Audio Concepts
By: /s/ [ILLEGIBLE] By: /s/ Xxxx Xxxx
------------------------------ ----------------------------
Title: President Title: President
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