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EXHIBIT 10.13
NETWORK PUBLISHING, INC.
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SERVICE AGREEMENT
Agreement entered into this 21st day of March, 1997, by and between
NETWORK PUBLISHING, INC., hereinafter "NPI," and ON'VILLAGE COMMUNICATIONS,
INC., hereinafter "COMPANY."
RECITALS
WHEREAS, NPI is in the business of consulting, development, design,
converting, linking and managing (hosting) information electronically published
on the electronic medium known as the Internet, together with other related and
unrelated worldwide and regional electronic informative networks; and,
WHEREAS, COMPANY desires to publish certain information described on
that electronic medium known as the Internet, together with other related and
unrelated worldwide and regional networks, and to receive related consulting
and hosting services.
WHEREAS, NPI is willing to provide COMPANY the services described in
Exhibit "A," pursuant to the following terms and conditions:
NOW THEREFORE, in consideration of these premises and those other
terms and conditions set forth hereinafter, the parties hereto agree as
follows:
1. SERVICE. NPI shall provide COMPANY the services, equipment,
time and management as specifically described on Exhibit "A," as that exhibit
may be amended and supplemented from time to time in writing, signed by both
parties, which Exhibit, together with all amendments and supplements thereto,
is and shall be attached to this agreement, and made a part hereof.
2. PAYMENT. For NPI's services provided as described above,
COMPANY shall pay NPI the amounts set forth on the terms provided in Exhibit
"A" as it may be amended and supplemented from time to time. Amounts owed
hereunder as set forth in Exhibit "A," as it may be amended or supplemented
from time to time, shall be paid within fifteen days from the date of each
monthly invoice generated and furnished COMPANY, by NPI, which invoices shall
be generated for work performed in the preceding calendar month period ending
on the last day of each calendar month. All amounts not paid within thirty
(30) calendar days of the date of the respective invoice shall accrue interest
at the rate of 18 percent per annum. All amounts not paid as provided herein
may constitute cause for termination of this contract, and entitle NPI to
disconnect COMPANY's electronic publication from the Internet, or other related
or unrelated worldwide or regional network.
3. REPORTING. NPI shall capture all accesses to COMPANY's
electronic publication and provide COMPANY with an accounting of all accesses
together with all data received as a consequence of such accesses. Such
accounting shall be provided to COMPANY at least daily.
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4. TERM. This Agreement shall be for the term of one (1) year
from the date of execution of this Agreement, provided the term hereof will
automatically renew for a subsequent one (1) year period for a total of up to
five years; unless and until terminated as provided in paragraph 5 below.
5. TERMINATION. The COMPANY may terminate this Agreement at any
time without cause upon thirty (30) days' written notice to NPI , provided any
amounts paid in advance by COMPANY and not incurred in the performance by NPI
shall be refunded at the effective date of such termination as more
specifically set forth in Exhibit "A" as amended and supplemented from time to
time. NPI may terminate this Agreement at any time without cause, upon One
Hundred Twenty (120) days written notice. NPI may terminate this Agreement at
any time with cause, upon Thirty (30) days written notice. "Cause," as used
above, shall be defined for the purposes of this Agreement as any failure by
COMPANY to pay amounts provided under Exhibit "A" as amended and supplemented
from time to time, and paragraph 2, or as otherwise invoiced hereafter, when
due, and/or the breach of any provision of this Agreement, together with the
exhibits, amendments and supplements hereto which breach is not cured within
Thirty (30) days after the Company receives written notice of breach from NPI.
The termination of this Agreement with cause by NPI shall not terminate the
obligation of COMPANY to pay for services rendered by NPI as of the date of
such termination. The parties acknowledge and agree that the termination of
services provided by NPI without such 30-day prior notice to the COMPANY would
cause irreparable damage to the COMPANY, and that termination of service,
except in the manner provided herein, is not an acceptable remedy for any
breach or alleged breach by the COMPANY.
6. WARRANTIES. COMPANY warrants that all information provided by
it to be electronically published or otherwise handled by NPI in the selected
electronic medium shall be original, and free from material which may encroach
or infringe on another's protected information, photographs, video and audio
works or be defamatory or scandalous. COMPANY shall indemnify and hold
harmless NPI from all claims of third persons arising as a result of NPI's
performance under this Agreement, including by way of example and not
limitation, third-party claims of copyright, trademark or patent infringement,
plagiary, false or misleading information, defamatory or scandalous
information, or any other claim arising from the electronic publication in the
selected medium.
7. NPI WARRANTIES. NPI warrants that it will work diligently and
perform with reasonable caution to provide services to reasonably ensure that
the COMPANY's web site is available to users at all times and be accessible to
the selected medium to the extent such medium is operable or controllable by
NPI. NPI shall not be liable for downtime, stoppages, deletions, or
freeze-outs resulting from elements beyond the control of NPI, acts of god,
acts of war, or force majeure. NPI makes no warranties as to the
protectibility of the electronically published information, the availability in
the selected medium of the use and publication of such information, that such
information is not defamatory, scandalous, proprietary, or free from
duplication on the medium or the absence of other similar information on the
selected medium.
8. OWNERSHIP/USE OF MATERIALS/SOFTWARE/PROGRAMMING. Any and all
content, visuals, logos, or other ideas for COMPANYS' Internet site contributed
by NPI or by the COMPANY shall be and remain in possession of and be treated as
the sole and exclusive property of the COMPANY.
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9. INTEGRATION. This Agreement together with the "Amended
Agreement" of even date herewith and all exhibits, amendments and supplements,
represents the complete and entire agreement between the parties hereto. This
Agreement and the "Amended Agreement" of even date herewith either embodies or
supersedes all prior, contemporaneous or subsequent oral agreements,
representations, understandings, and all written notations, memoranda, or
correspondence of any party hereto, their agents, employees or other related
persons, related to the work contemplated in this Agreement.
10. CONSTRUCTION AND JURISDICTION. This Agreement shall be
construed and enforced pursuant to the laws of the State of Utah, U.S.A. By
affixing their signatures to this Agreement, the parties hereby submit
themselves to the Third District Court, Salt Lake County, State of Utah, or the
Federal District Court, Central Division, State of Utah, for the judicial
resolution of any disputes arising under the terms, interpretation or
performance of this Agreement.
11. ATTORNEY'S FEES. In the event either party is required to
retain counsel to enforce the provisions of this Agreement or to bring legal
action to enforce the provisions of this Agreement or remedy any breaches of
this Agreement, the prevailing party in such action shall be entitled to its
costs and attorney's fees incurred in such action or procedure, whether or not
an action is ultimately filed in a court of proper agreed jurisdiction.
12. NON-DISCLOSURE. NPI acknowledges that all information,
software, reports, pricing, image and other related materials provided to NPI
are confidential and shall not be disclosed or revealed to any third party. If
the program is terminated by either party and NPI has been paid for all
services provided for in this Agreement, NPI will return all confidential
information to Company.
WHEREFORE, the parties have affixed their signatures to this Agreement
the date first above stated.
ON'VILLAGE COMMUNICATIONS, INC. NETWORK PUBLISHING, INC.
By:____________________________________ By:__________________________________
Name:__________________________________ Name:________________________________
Title:_________________________________ Title:_______________________________
Date:__________________________________ Date:________________________________
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EXHIBIT A
Project Scope of Work
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Project name: On'Village Hosting
Primary contact: Xxxx Xxxxxx
"Start date": May 1, 1997 or Sooner (based on arrival at NPI of The
"New OV Equipment")
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PROJECT OVERVIEW
Network Publishing Inc. shall provide to On'Village hosting and maintenance
services for its Internet website.
I. "The Installation"-NPI will be responsible for the setup and installation
of The "New OV Equipment" to be provided by On'Village (as defined in the
"Amended Agreement") The setup and installation will make ready the COMPANY's
website for Hosting and Internet Access Usage by NPI as defined below.
Pursuant to the"Amended Agreement" between the COMPANY AND NPI dated of even
date herewith, NPI will not charge the COMPANY for these services.
II. "Previous to "the Installation-" "the NPI Hardware"and the "OV Hardware" as
separately defined in the "Amended Agreement" shall continue to be used by
On'Village.
III. Deposit- On the "Start date"of this Agreement, On'Village will make
payment to NPI in the form of a security deposit of $2000 which will be
applied to the services performed in the last month of the Service Agreement.
BASIC SERVICES
HOSTING AND INTERNET ACCESS USAGE
Hosting and Maintenance
1. On'Village servers will be hosted in Network Publishing's server
room which is locked and protected by an electronic alarm system.
2. Access to On'Village's servers will be made available to Xxxx
Xxxxxxx or other mutually approved On'Village representative
during business hours (7:00am to 6:00pm) with a Network
Publishing employee.
3. On'Village servers will be monitored 24 hours per day and rebooted
when necessary.
4. On'Village HTTP servers will be backed up daily. Database servers
will also be backed up daily, in an online ("hot") mode. Each
Friday's backups will be removed to an off site location as a
recovery insurance against catastrophe at the computer site.
5. On'Village servers will have remote access by authorized
On'Village programmers and administrators.
6. NPI will provide up to 10 hours monthly of updates and/or
enhancements to On'Village Website including server software
updates, hardware maintenance, programming and database
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analysis.
B. Internet Access Usage
1. On'Village servers will be connected to Internet through Network
Publishing's network which consists of redundant T1 connections.
BASIC MONTHLY SERVICE CHARGES
A. Hosting and Maintenance-$1000.00 per month
B. Internet Access Usage-$1000.00 per month minimum. The minimum
rate includes up to 30,000 "Megabytes Transmitted" per month.
Once the "Megabytes transmitted" exceeds the 30,000 minimum,
On'Village will be billed for additional usage at the rate of
$4.00 per 100 "Megabytes transmitted" for all additional monthly
usage.
CHARGES FOR ADDITIONAL SERVICES
Additional Updates/Enhancements for services requested by On'Village
over and above the 10 hours monthly as provided for in the "Basic
Services" will be billed at the following rates:
1. Server software updates and hardware maintenance to be billed at
$125.00 per hour.
2. HTML markup services billed at $75.00 per hour.
3. Customer programming and database analysis billed at $125.00
per hour
SIGNATURES
On'Village Communications, Inc. Network Publishing, Inc.
By:________________________________ By:______________________________
Title:_____________________________ Title:___________________________
Date:______________________________ Date:____________________________
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Schedule "A"
The "NPI Hardware"
The "NPI Hardware" includes all hardware which is presently in use at NPI's
facility for the On'Village website including, but not limited to the Compaq
Server known as "Xxxxxx" and it's integrated components.
ON'VILLAGE COMMUNICATIONS, INC.
By ____________________________________
Typed Name: Xxxx Xxxxxx
Title: CEO
NETWORK PUBLISHING, INC.
By ____________________________________
Typed Name: Xxxxxxx Xxx
Title: President
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Schedule "B"
The "OVHardware"
The "OV Hardware" includes all hardware which is presently in use (and used in
conjunction with the "NPI Hardware") at NPI's facility for the On'Village
website which was purchased by On'Village for the amount of Ten thousand twenty
four dollars ($10,024.00) on or about 5-17-96 by On'Village.
ON'VILLAGE COMMUNICATIONS, INC.
By ____________________________________
Typed Name: Xxxx Xxxxxx
Title: CEO
NETWORK PUBLISHING, INC.
By ____________________________________
Typed Name: Xxxxxxx Xxx
Title: President
