Media Development
Services Agreement
Between
Open-i Media, Inc.
And
SIGA Technologies, Inc.
SERVICE AGREEMENT
This Agreement is made as of March 9, 2000, ("Effective Date") by and
between SIGA Technologies, Inc., a corporation with its principal place of
business at 000 Xxxxxxxxx Xxx., Xxxxx 000, Xxx Xxxx, XX 00000 ("SIGA") and
Open-i Media, Inc., a corporation with offices at 00 Xxxxxxxx Xxxxxx, Xxx Xxxx,
XX 00000 ("Open-i").
RECITALS
A. SIGA is engaged in the development of internet-based multimedia tools
and products for use by its clients and customers.
B. Open-i is a multimedia development firm with experience in the design
and production of media appropriate to SIGA's business. SIGA wishes to engage
Open-i to provide such services.
C. This Agreement shall establish the terms and conditions for services
performed by Open-i for SIGA. These terms govern the general conduct of
contracting including disclosure of information and intellectual property rights
and, where a conflict may occur, supersede the terms of any purchase order
issued for such services.
NOW, THEREFORE, in consideration of these premises and the mutual
covenants contained herein, the parties agree as follows:
1. Services. Open-i shall provide the services set forth on the attached
Exhibit A (the "Scope of Work"), or as otherwise agreed upon by the parties.
2. Fees and Expenses. As compensation for the services provided under this
Agreement, SIGA shall pay to Open-i fees for services rendered ("Fees"), in
accordance with the schedule set forth on the attached Exhibit B. For all Fees
payable in stock, the stock shall be common stock of SIGA Technologies, Inc. and
shall be valued at the closing price on the Effective Date, which is $9.1875 per
share. Open-i shall be entitled to reimbursement for all reasonable ordinary and
necessary expenses directly incurred in connection with the performance of the
consulting services provided hereunder ("Expenses"). Any expense in excess of
Five Hundred Dollars ($500.00) shall be subject to the prior written approval of
SIGA. Travel and living expenses and Consultant's overhead (i.e. office rent and
insurance) are not reimbursable expenses.
3. Invoices and Payment. Within ten (10) business days following the end
of each calendar month. Open-i shall submit to SIGA an invoice, setting forth
Fees accrued (hours billed, if applicable), and Expenses incurred by Open-i.
during the preceding month, specifying dates, time spent. and a description of
the billable activity, during the preceding month. Invoices shall include
documentary evidence for all Expenses, in form and content reasonably
satisfactory to SIGA. All fees payable by SIGA for a given month shall be paid
within 30 days following the date when each monthly invoice is submitted.
2.
4. Term and Termination. This Agreement shall be effective as of the
Effective Date. This agreement may be terminated by SIGA with or without cause,
upon fifteen (15) days written notice of the termination. Open-i shall have the
right to terminate this Agreement in the event of a material breach by the other
party, provided that written notice has been given and SIGA has not cured the
material breach within thirty (30) days of receipt of the notice. SIGA may
terminate this agreement immediately upon written notice, if the material breach
by Open-i constitutes a violation of Section 7, which notice shall specify such
breach. Upon expiration or earlier termination of this Agreement prior to
completion of the services outlined in Exhibit A, Open-i shall deliver to SIGA
copies of all work in progress and other materials developed for SIGA hereunder.
The following provisions shall survive expiration or earlier termination of this
Agreement: Sections 2 and 3 (with respect only to services rendered to SIGA by
Open-i prior to the date of termination), and Sections 5, 6, 7, 8, 9, and 11.
5. Reporting Requirements and Records. Open-i shall keep the designated
representative of SIGA apprised of all material developments in Consultant's
tasks, and shall regularly provide oral summaries of Consultant's progress. SIGA
may, from time to time, request written summaries, which Open-i shall provide to
SIGA in a timely fashion. Upon the request of SIGA, Open-i shall make available
to SIGA finished or completed draft documents, work in progress, and other data
maintained or developed by Open-i in connection with Open-i's performance under
this Agreement. Open-i agrees to retain such records, documents and data for a
period of not less than one (1) year from termination or expiration of this
Agreement. All materials prepared by' Open-i under this Agreement for the
benefit of SIGA shall become the sole property of SIGA upon delivery, and shall
not be used by Open-i for any other purposes.
6. Status of Open-i as an Independent Contractor. Open-i shall at all
times be and be deemed to be an independent contractor with SIGA. SIGA is
interested only in the results obtained by Open-i, and Open-i shall have sole
control of the manner and means of performing Open-i's obligations hereunder.
Open-i hereby acknowledges that SIGA will not be required to withhold state and
Federal income taxes, or to make payments for FICA, unemployment insurance or
any other payroll taxes, and that Open-i will report such earnings as corporate
earnings when he files his state and Federal income tax returns. Open-i shall be
obligated to pay federal and state income tax, if any, on any money earned
pursuant to this Agreement. Open-i will not be entitled to workers compensation,
or be covered by any benefits or compensation plans provided for SIGA employees.
Open-i is neither an employee nor an agent of SIGA and shall not, under any
circumstances, have authority to create any contract or obligation, express or
implied, on behalf of, in the name of or binding upon SIGA.
7. Confidentiality Requirement. It is agreed during Open-i's retention and
thereafter that both SIGA and Open-i shall maintain as confidential any and all
information obtained from SIGA the other, whether oral or stored in any media,
including, but not limited to, technical or non-technical data, formulas,
patterns, compilations, programs, software, models, data models, object models,
class libraries, architectures, devices, methods, techniques, drawings,
processes, financial and customer data, product plans, and templates, or
developed in the course of Open-i's services under this Agreement, which
information is of a confidential and proprietary nature and was not previously
known to to the other or publicly available, prior to disclosure of such
information to the parties by SIGA the other or prior to development of such
information under this Agreement. This obligation shall cease only when such
information becomes publicly available through publication by either party SIGA
or rightful publication by others.
7.1 Notwithstanding anything else contained in this Agreement to the
contrary, SIGA and Open-i shall be free to use the "Residuals" for any purpose,
including use in development, manufacture, marketing, and maintenance of its own
or third parties' products and services; provided that neither party may avoid
its confidentiality obligations in this Agreement for item of confidential
information merely by having a person commit such item to memory so as to reduce
it to intangible form. "Residuals" shall mean anything in non-tangible form (as
opposed to
3.
written or documentary form, which includes disk, tape, paper or electronic
form) which may be retained by any party having had rightful access to the
Confidential Information during the term of this Agreement; provided, however,
that it shall not include any trade secret nor any patents, copyrights, or
trademarks of either of the parties or a client of SIGA.
8. Assignment of Intellectual Property Rights. It is agreed that all
right, title and interest Open-i may have in and to any intellectual property
(conceived either individually or jointly), including any inventions, whether
patentable or not, any mask work rights, trademarks, or copyrights and which
arise out of Open-i's performance under this Agreement, shall be the property of
SIGA, and Open-i shall execute all papers necessary for obtaining or perfecting
any patents, trademarks or copyrights or other similar rights in any such
intellectual property. Where applicable, works of authorship created by Open-i
for SIGA in the performance of this Agreement shall be considered "works made
for hire" as defined under U.S. Copyright Law.
8.1 Open-i has non-exclusive, non-transferable, irrevocable, perpetual,
royalty-free right and license to reproduce, distribute, perform, display, and
create derivative works any of the materials delivered by Open-i under this
Agreement for Open-i's business, provided that Open-i removes all SIGA materials
therein provided to Open-i under this Agreement.
9. Information of Contractor or Third Parties. Open-i warrants that work
performed under this Agreement will or have been original to Open-i, and will
not infringe upon any rights of others or contain libelous material. In
performance of its obligations under this Agreement, Open-i shall, to the best
of its knowledge and ability, avoid infringement of any patent, copyright, mask
work right, or trademark, or the disclosure of any trade secret or other
confidential and proprietary of other any third party. Even when permission has
been obtained from the affected third party(ies) Open-i agrees that it shall not
knowingly furnish or use any such patented or copyrighted information or any
such mask work or trademarks in the performance of this Agreement, nor shall
Open-i knowingly use the trade secrets or other confidential and proprietary
information of Open-i or others, without the prior written consent of SIGA.
Open-i shall indemnify SIGA in the event of an infringement action by any third
party against SIGA arising out of Open-i's use of any patents, copyrights, mask
work rights, trademarks, trade secrets, or other confidential and proprietary
information.
10. Representations of the parties. As a material inducement for both
parties to enter into this Agreement, the parties hereby represent to the other
and agree as follows: (a) each party holds any and all required and necessary
rights and licenses in order for Open-i to undertake the services to be provided
hereunder; (b) Consultant, and all contractors employed by either party to
complete work hereunder, shall be fully capable of performing the obligations
required to complete such work in a professional, safe and workmanlike manner;
(c) each party shall at all times comply with all Federal, State and local laws
and ordinances applicable to its obligations under this Agreement; and (d) each
party shall acquire and maintain in good standing its own insurance, including
unemployment compensation, disability insurance, automobile insurance, and
general liability insurance.
11. General Provisions.
(a) Waivers. Any waiver of any right under this Agreement must be in
writing and signed by the waiving party.
(b) Written Agreement to Govern. This Agreement is the entire
understanding between the parties relating to the subjects it covers and
supersedes all other prior agreements, representations and covenants, oral or
written. Amendments to this Agreement must be in writing and signed by both
parties.
4.
(c) Attorneys' Fees. The prevailing party in any arbitration, action
or other proceeding brought to enforce this Agreement shall be entitled to
recover its reasonable attorneys' fees, costs, and expenses in connection with
such action or proceeding from the either party.
(d) Severability. If any term or provision of this Agreement is
deemed unenforceable for any reason, such provision shall be severed from this
Agreement and shall not affect the remainder of this Agreement.
(e) Governing Law. This Agreement shall be governed in accordance
with the laws of the State of California.
(f) Dispute Resolution. Any disputes between the parties which
cannot be resolved among themselves or shall be resolved in the state or federal
courts located in New York, NY. Open-i hereby agrees and submits to the
jurisdiction of these courts for the purpose of this Agreement.
(g) Further Assurances. In addition to the actions specifically
mentioned in this Agreement, the parties shall each do whatever may be
reasonably necessary to accomplish the transactions contemplated in this
Agreement. Wherever this Agreement requires the consent of the other party,
unless otherwise specified, such consent shall not be unreasonably withheld or
delayed.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and all such counterparts taken together shall be deemed to
constitute one and the same agreement.
(i) Recitals and Attachments. The recitals set forth above and the
attached Schedule(s) shall be deemed to be a part of this Agreement as though
such provisions had been set forth in full in this Agreement.
(j) Notices and Other Communications. Every notice required by this
Agreement shall be delivered either by (i) personal delivery, (ii) overnight
courier requiring the signature of the recipient (e.g. Federal Express), (iii)
postage prepaid return receipt requested certified mail, or (iv) by facsimile
transmission confirmed by delivery of a copy in accordance with the methods
described in (i), (ii) or (iii), above, addressed to the party for whom intended
at the addresses appearing below the recipient's signature, below, or at such
other address as the intended recipient shall have designated by written notice.
5.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and date first written above.
SIGA: Open-i:
SIGA Technologies, Inc. Open-i Media, Inc.
a Delaware corporation A New York corporation
By: /s/ [Illegible] By: /s/ [Illegible]
------------------- ------------------
Its: Chief Executive Its: President
Officer
Address: Address:
000 Xxxxxxxxx Xxx. 00 Xxxxxxxx Xxxxxx
Xxxxx 000 Ground Floor
New York, NY 10017 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxx Xxxxx
Fax: (000)000-0000 Fax: (000)000-0000
6.