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EXHIBIT 99.5
[DIGITAL BRIDGE LOGO]
DEVELOPMENT, MAINTENANCE, AND MANAGEMENT AGREEMENT
This Website Development, Maintenance, and Management Agreement ("Agreement") is
entered into by and between Garra Sciences, Inc. ("Client"), a Delaware
corporation based in Phoenix, Arizona, and Digital Bridge, Inc. ("DGBI") a
Nevada corporation based in Phoenix, Arizona, on the _____ Day of April 2001
(the "Effective Date").
RECITALS
I. DGBI is in the business of providing business management services, Web
site design, development, and maintenance services, and on-line
publishing and interactive services;
II. Client desires to retain DGBI to provide certain business management
services, and to design, develop, implement, maintain, and host an
Internet Web site, and DGBI desires to so contract with Client, in
accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions as set
forth herein, and other valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
AGREEMENTS
SECTION 1. DEFINITIONS
1.1 DEFINITIONS: The parties agree that, for the purposes of this Agreement, the
following terms shall have the following meanings:
(a) CLIENT CONTENT means any and all text, database files and records,
images, video, audio (including, without limitation, music used in
time relation with text, images, or video), and all other data
provided by Client to be incorporated into the Web Site, as listed
on Schedule "C."
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(b) DEVELOPMENT SCHEDULE means that schedule set forth in Schedule "B"
to this Agreement, which lists the Deliverables and the deadlines
for their delivery.
(c) DGBI TOOLS means the software tools of general application,
whether owned or licensed to DGBI, which are used to develop the
Web Site.
(d) ENHANCEMENTS mean any improvements to the Web Site to implement
new features or add new material. Enhancements shall include
modifications to the Web Site Content to make the Web Site operate
on a Server System other than that provided by or through DGBI.
(e) ERROR means any failure in the Web Site: (i) to meet the
Specifications and/or (ii) to operate with the Server System, that
is attributable to the DGBI.
(f) FINAL VERSION means a non-copy protected, unencrypted, and fully
paid-for disk master of the final version of the Web Site,
recorded in executable form on the specified medium with any
necessary supporting software and data, (except for Server
Software), as to which all development work hereunder, and
corrections to the Beta Version, have been completed and which
meets the Specifications.
(g) LOAD EXPECTATION means the expected number of users of the Web
Site per day. To the extent that this Agreement provides for any
e-commerce or database elements contained within the Web Site,
DGBI and Client shall agree upon a Load Expectation to which the
e-commerce and database elements shall be designed. The Load
Expectation shall be set forth in Exhibit "A."
(h) SOURCE CODE means the code, documentation, notes and other
material which are produced or created by DGBI during the
development of the Web Site and which are not necessary for the
operation or maintenance of the Web Site. Source code shall
include all Java source code, all C++ source code, all Visual
Basic source code and all other similar source code that is
ordinarily not distributed as part of a compiled executable file.
(i) SPECIFICATIONS means the specific elements that make up the Web
Site which are set forth in Schedule "A."
(j) WEB SITE CONTENT means (i) the graphic user interface, text,
images, music and other material of the Web Site developed by DGBI
under this Agreement which is visible to World Wide Web browsers
and (ii) software (including, without limitation, cgi scripts,
perl scripts, java applets, ActiveX components, but not including
any Source Code) developed by DGBI under this Agreement to
implement the Web Site. Web Site Content shall not include Source
Code or DGBI Tools.
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(k) WEB SITE means the site to be developed for Client on the graphic
portion of the Internet known as the World Wide Web, which is
described in the Specifications.
SECTION 2. MANAGEMENT SERVICES
2.1 MANAGEMENT SERVICES: Immediately upon the execution of this Agreement,
and for a period of two (2) years thereafter (or until such time as
Client's Board of Directors deems such services to be unnecessary),
DGBI shall provide Client with the following Management Services
(collectively, the "Services"), which are intended to be equivalent (or
supplemental) to those provided by: (1) V.P. of Finance and Strategic
Planning; (2) V.P. of Marketing; (3) V.P. of Sales; (4) V.P. of
Business Development; (5) V.P. of Operations; (6) V.P. of Corporate
Services, and (7) Creative Director.
(a) BUSINESS CASE ANALYSIS AND IMPLEMENTATION SERVICES: DGBI shall
create a detailed business plan, which shall include a detailed
Executive Summary, product assessment, market analysis, marketing
plan, financial pro-formas, and other matters normally associated
with sophisticated business plans.
(b) DEVELOPMENT OF CORPORATE STRATEGY: DGBI shall develop the core
components and structure of a corporate strategy for Client.
Elements of the corporate strategy shall be incorporated into the
business plan and investment presentations. Elements of the
recommended corporate strategy to be delivered by DGBI are as
follows:
(i) COMPETITIVE ANALYSIS: DGBI shall identify key competitors,
competing products, and competitors' market focus and market
share. DGBI shall also develop a competitor matrix and
identify Client's core competencies in light of the
competitive analysis.
(ii) EVALUATION OF MARKET POTENTIAL: DGBI shall develop a
comprehensive definition of Client's current target market,
assess future market growth by geographical region and
industry, and identify potential strategic alliances and
partners.
(iii)FINANCIAL ANALYSIS AND VALUATION: DGBI shall determine
Client's current financial requirements and prepare financial
projections for a minimum of three (3) years. Further, DGBI
shall evaluate Client's funding requirements over time in the
context of its long-term market goals.
(c) JOINT VENTURE AND STRATEGIC ALLIANCE ANALYSIS SERVICES: DGBI shall
utilize its extensive industry network connections to seek out and
negotiate joint
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ventures and strategic alliances (in accordance with the corporate
strategy) so as to rapidly increase the market presence and
overall revenue potential of Client.
(d) INVESTMENT PRESENTATION PREPARATION SERVICES: DGBI shall prepare
investment presentations, including computer slide presentations,
Internet flash presentations, and written materials tailored to
specific investor groups on a continual basis throughout the term
of this Agreement.
(e) BUSINESS DOCUMENT PREPARATION SERVICES: DGBI shall provide Client
with any and all business contracts required by Client to conduct
the business throughout the term of this Agreement (i.e., Letters
of Intent, Joint Venture Agreements, Sales Distribution
Agreements, Service Agreements, Subscription Agreements, licenses,
etc.). DGBI shall draft and present all such documents following
consultation with Client executive management concerning the
nature of the business arrangement that is the subject of the
document.
(1) NO LEGAL ADVICE OR REPRESENTATION: Although DGBI shall be
utilizing the services of licensed attorneys to provide the
aforementioned Business Document Preparation Services,
Client understands and agrees that neither DGBI, nor its
attorneys, shall be providing Client with legal advice,
services, or representation by or through this Agreement or
in any other manner whatsoever. DGBI is only acting as a
scrivener, drafting documents in accordance with Client's
instructions. Client is solely responsible for the
substantive contents of any document, and DGBI, together
with its officers, shareholders, agents, attorneys, and
assigns, hereby disclaims any and all liability that may be
associated with the preparation or presentation thereof.
(f) ACCOUNTING, BOOKKEEPING, AND FINANCIAL SERVICES: DGBI shall
provide Client with any and all required accounting, bookkeeping,
and similar financial services. DGBI shall provide the required
services in accordance with GAAP, and shall provide financial
reports to Client's Board of Directors in accordance with a
schedule to be established thereby. DGBI shall also arrange for
and coordinate Client's annual audit in conjunction with Client's
audit committee.
(g) CORPORATE BRANDING SERVICES: DGBI shall create logos, slogans, and
other trademarks and servicemarks on behalf of Client. It is
understood and agreed that all trademarks and servicemarks created
by DGBI for Client in accordance with this Agreement shall become
the intellectual property of Client once selected.
(h) MARKETING MATERIALS: DGBI shall be responsible for the creation of
all outbound marketing materials (one-sheets, business cards,
collateral packages,
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b2b program sendouts, etc.). The nature and extent of all such
material shall be subject to the mutual agreement of the parties.
(i) MARKETING CAMPAIGN: DGBI shall conduct a survey of Client's niche
market, analyze the results and devise a strategy for broadcasting
and target marketing Client as a company and a product. It is
understood and agreed that this process may involve certain
outside parties, including those who conduct surveys, publish
demographic information or otherwise assist DGBI in providing
services that are not inherently part of DGBI operations.
2.2 ADMINISTRATIVE AND CLERICAL PERSONNEL: Following the execution of this
Agreement and for a period of two (2) years thereafter, DGBI shall
provide Client with a sufficient number of administrative and clerical
personnel necessary to conduct those day-to-day operations of Client's
business that are managed by DGBI in accordance with this Agreement as
detailed in Attachment One attached hereto and by this reference
incorporated herein. It is understood and agreed that Attachment One
details the DGBI personnel conducting the day-to-day operations of
Client's business , and the specific duties of each person. It is
further understood and agreed that, from time to time following the
execution of this Agreement, DGBI may be required to retain additional
personnel (and increase the Monthly Service Fee set forth in Section 5)
to carry out its obligations hereunder. DGBI shall first obtain
approval from Client before increasing the Monthly Service Fee to cover
any additional personnel.
2.3 OFFICE FACILITIES: Following the execution of this Agreement and for a
period of two (2) years thereafter, DGBI shall provide Client with
office space and equipment within the DGBI facility in Phoenix, Arizona
sufficient to conduct Client's business operations being managed by
DGBI, as detailed in Attachment One. For so long as DGBI provides
Client with office facilities, Client may set forth the DGBI address as
Client's headquarters and permanent place of business. The minimum
amount of facilities and space provided is set forth in Attachment One
to this Agreement.
SECTION 3. DEVELOPMENT AND DELIVERY
3.1 DEVELOPMENT & PROGRESS REPORTS. DGBI shall use its best efforts to
develop each Deliverable in accordance with the Specifications. On a
regular basis following execution of this Agreement and prior to
delivery of the Final Version of the Web Site, DGBI shall orally report
to Client on the status of development of the Web Site. This oral
report shall include a status report on the work completed and problems
encountered relating to development and testing of the Web Site. In
addition, DGBI shall contact Client's representative promptly upon
discovery of any event or problem that will materially delay
development work.
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3.2 DELIVERY. DGBI shall deliver all Deliverables for the Web Site
within the times specified in the Development Schedule and in
accordance with the Specifications.
3.3 MANNER OF DELIVERY. Deliverables shall be delivered to Client via
a digital medium accessible by the Client.
3.4 DELIVERY OF SOURCE MATERIALS. DGBI shall deliver the Source
Materials to Client upon delivery of the Final Version of the Web
Site.
3.5 TESTING AND ACCEPTANCE PROCEDURES. All Deliverables shall be
tested by DGBI and all necessary corrections as a result of such
testing shall be made prior to delivery to Client. Upon receipt of
a Deliverable, Client shall have a period of ten (10) days within
which to test the item (the "Acceptance Period") and to notify
DGBI in writing of its acceptance or rejection based on its test
results with respect thereto. If Client has not given notice of
rejection within the Acceptance Period, the Deliverable will be
deemed accepted. All work performed on a Deliverable after the
Deliverable is accepted by the Client shall be at an additional
cost to Client. Upon acceptance of the Deliverable, payment shall
be due in accordance with this Agreement.
3.6 REJECTION RIGHTS. Client may reject a Deliverable only on the
basis that it does not comply with the Specifications. Changes to
Deliverables which comply with the Specifications can only be made
after Client accepts the Deliverable and agrees to a written
modification of this Agreement to compensate DGBI for the work
necessary to incorporate such changes and to alter, if necessary,
the Development Schedule.
3.7 REJECTION AND CORRECTION PROCEDURES. If the Client properly
rejects a Deliverable, DGBI shall, within fifteen (15) days of
such notice (or such longer period as Client may allow), submit,
at no additional charge, a revised Deliverable in which all Errors
have been corrected. DGBI shall be under no obligation to correct
a rejected Deliverable if DGBI determines that the failure of the
Deliverable is due to an element (technical or otherwise) outside
of DGBI's control, in which case, the Client shall be responsible
for directing the removal of the element that caused the Error in
the Deliverable. Upon delivery of the corrected Deliverable,
Client shall have an additional ten (10) days to test the
Deliverable and either (1) accept it (making the payment(s) called
for herein; or (2) reject the Deliverable again and repeat the
Rejection and Correction Procedures set forth in this Section 3.7.
In the event that Client determines that the Deliverable continues
to include Errors after three (3) attempts at correction by the
DGBI, Client may terminate this Agreement. Upon such termination,
Client shall return the Deliverable and all copies thereof, to
DGBI.
SECTION 4. OTHER OBLIGATIONS OF DGBI
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4.1 WEB SITE WARRANTY - VOID FOR EXCEEDING LOAD EXPECTATION. DGBI
represents and warrants that the Web Site (1) will be free of defects
in workmanship in all material respects; (2) will conform in all
respects to the functional and other descriptions contained in the
Specifications; (3) will be fully functional and all features will be
controllable and updateable by Client; and (4) will perform its
designated functions in a commercially reasonable manner. For a period
of one year after the date of acceptance of the Final Version by the
Client (the "Warranty Period"), DGBI agrees to fix, at its own expense,
any Errors.
4.2 WARRANTY DISCLAIMER. EXCEPT AS STATED IN SECTION 8.1, DGBI DISCLAIMS
ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES
OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND FITNESS
FOR A PARTICULAR PURPOSE.
4.3 WEB SITE SUPPORT. DGBI also agrees to provide client with the support
services stated in Schedule "D" to maintain and update the Web Site on
the World Wide Web at the cost to Client stated in Schedule "D." The
costs for the support services set forth in Schedule "D" shall be valid
for a period of two (2) years from the date Client accepts the Final
Version of the Web Site. Thereafter, Client and DGBI may negotiate a
new cost structure for the support services. If Client and DGBI are
unable to agree upon a new cost structure, DGBI will continue to
provide the support services to Client at One hundred and ten percent
(110%) of the costs listed on Schedule "D" for a period not to exceed
six (6) months, at which time, if the parties have not agreed upon a
new cost structure, Client's Web Site will no longer be supported by
DGBI.
4.4 WEB SITE ENHANCEMENTS. DGBI understands and agrees that Client will
require continual modifications and/or enhancements to the Web Site in
excess of or in addition to those modifications provided for under Web
Site Support in Section 4.3, and agrees to provide Client with the
appropriate time, attention, and resources as are necessary to ensure
that requested modifications and/or enhancements are completed in a
timely fashion. Client shall submit to DGBI in writing a list of the
proposed modifications and/or enhancements and all relevant
specifications therefor. DGBI shall have ten (10) days from the date of
receipt of such written list to provide Client with a proposed cost and
schedule for the modifications and/or enhancements. Client may not
contract with any third party to perform modifications and/or
enhancements to the Web Site until DGBI has submitted its proposed cost
and schedule. Thereafter, should Client elect to enter into an
agreement with a third party to perform the modifications and/or
enhancements to the Web Site, then all warranties provided herein shall
become void, and DGBI shall have no further obligation to provide any
services to Client, including, but not limited to, any of the support
services set forth in Section 4.3. In such event, Client shall have
three (3) months to move the Web Site to another WSP.
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SECTION 5. PROPRIETARY RIGHTS
5.1 CLIENT'S OWNERSHIP RIGHTS. DGBI acknowledges and agrees that except as
stated in Section 5.5, and only after DGBI's receipt of all sums due to
DGBI for the development of the Final Version of the Web Site, the Web
Site Content and Documentation, including, but not limited to images,
graphic user interface, and any documentation and notes associated with
the operation and maintenance of the Web Site are and shall be the
property of Client. Title to all intellectual property rights, other
than rights to the Source Code, including, but not limited to,
copyrights, trademarks, patents and trade secrets in the Web Site
Content and Documentation is with, and shall remain with Client.
5.2 DGBI'S OWNERSHIP RIGHTS. Client acknowledges and agrees that except as
stated in Section 5.6, the Source Code and the DGBIs Tools are and
shall be the property of DGBI. Title to all intellectual property
rights, other than rights to the Web Site Content and Documentation,
including, but not limited to, copyrights, trademarks, patents and
trade secrets in the Source Code and DGBIs Tools is with, and shall
remain with, DGBI. DGBI hereby grants to Client and its respective
successors and assigns, a worldwide, royalty-free perpetual license to
re-use the Source Code and DGBIs Tools as necessary in connection with
other Website development projects, provided that Client shall offer
DGBI with the opportunity to provide development services in connection
with such projects.
5.3 DGBI'S OWNERSHIP OF COMPONENTS. Client will retain copyright ownership
of all compiled elements of the Web Site including, but not limited to
all Java applets, Java applications, C++ applications, Visual Basic
Applications, database applications, etc. and of the following
material: N/A ("DGBI Retained Components"). However, DGBI
hereby grants to Client a royalty-free, worldwide, perpetual,
irrevocable, nonexclusive license, to use, reproduce, distribute,
customize, publicly perform and publicly display the DGBI Retained
Components on the Web Site and on other Website projects initiated by
Client. Client shall not have the right to resell or sublicense the
DGBI Retained Components to any third party unrelated to Client (unless
such party is a successor to Client's business).
5.4 CLIENT'S OWNERSHIP OF COMPONENTS. Client will retain copyright
ownership of the following material: All client provided Client
Content, all music, art or similar material provided by Client ("Client
Retained Components"). However, Client grants to DGBI a royalty-free,
worldwide, perpetual, irrevocable, nonexclusive license, with the right
to sublicense through multiple tiers of sublicensees, to use,
reproduce, distribute, modify, publicly perform and publicly display
the Client Retained Components by and through the Web Site.
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5.5 LICENSE TO WEB SITE CONTENT AND CLIENT CONTENT. Client grants to DGBI a
nonexclusive, worldwide license to reproduce and modify Client Content
and the Web Site Content to develop and maintain the Web Site.
5.6 CLIENT'S DOMAIN NAME. Client's domain names shall remain the sole
property of Client. DGBI acknowledges that DGBI has no right to use
Client's domain names other than in connection with the Web Site
development and maintenance project covered in this Agreement.
SECTION 6. PAYMENT
6.1 PAYMENT FOR MANAGEMENT SERVICES: In consideration for the performance
by DGBI of the Management Services set forth in this Agreement, Client
shall pay DGBI as follows:
(a) MONTHLY SERVICE FEE: In partial consideration for the ongoing
services to be provided by DGBI pursuant to Section 2 of this
Agreement, Client shall pay DGBI a Monthly Service Fee of Ninety
Three Thousand Dollars ($93,000) in cash based upon the personnel
outlay set forth in Attachment One attached hereto and by this
reference incorporated herein, which shall be due and payable in
advance to DGBI on or before the fifth (5th) day of each month in
which such ongoing Services are rendered (or immediately upon
receipt of an invoice for said Services). The first Monthly
Service Fee shall be due on or before the fifth day of the month
following that in which this Agreement is executed.
(b) FACILITIES FEE: DGBI shall provide the office facilities set forth
in Section 2.3 of this Agreement as detailed in Attachment One in
consideration for payment of a Facilities Fee in the amount of
$25,000. The Facilities Fee shall be invoiced with the Monthly
Service Fee, and shall be payable by Client concurrently
therewith.
6.2 PAYMENT FOR DEVELOPMENT SERVICES: In consideration for the performance
by DGBI of the Development Services set forth in this Agreement, Client
shall pay DGBI as follows:
(a) CASH PAYMENT: All work performed by DGBI's employees and
consultants in connection with the development of the Final
Version of the Web Site shall be billed at the flat rate of Three
Hundred Fifty Thousand Dollars ($350,000.00) (the "Development
Fee").
(i) PAYMENT TERMS: DGBI and Client agree to the following
terms for the payment of the Development Fee:
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(1) The sum of Two Hundred thousand dollars ($200,000.00)
shall be due and payable within thirty (30) days
following the execution of this Agreement; and
(2) The remainder of the amount due ($150,000) shall be
due and payable upon delivery and acceptance of the
Final Version.
6.3 WEB SITE SUPPORT AND MAINTENANCE FEES. Following the delivery and
acceptance of the Final Version of the Web Site, DGBI shall provide
Client with Web Site Support and Maintenance Services as set forth in
Schedule "D" attached hereto and by this reference incorporated herein.
All Web Site Support and Maintenance work shall be billed to Client as
set forth in Schedule "D".
6.4 TAXES. Client shall be responsible for the payment of all sales, use
and similar taxes.
6.5 EXPENSES. Client shall promptly reimburse DGBI for the following: (i)
all reasonable travel and out-of-pocket expenses incurred by DGBI while
providing services pursuant to this Agreement and approved in advance
by Client. Client shall only be required to reimburse DGBI for the
above costs and expenses once it has received from DGBI appropriate
documentation for such expenses.
SECTION 7. CONFIDENTIALITY
7.1 CONFIDENTIAL INFORMATION. The terms of this Agreement, the Source
Materials and technical and marketing plans or other sensitive business
information, including all materials containing said information, which
are supplied by Client to DGBI or developed by DGBI in the course of
developing the Web Site is the confidential information ("Confidential
Information") of Client.
7.2 RESTRICTIONS ON USE. DGBI agrees that, except as authorized in writing
by Client: (i) DGBI will preserve and protect the confidentiality of
all Confidential Information; (ii) DGBI will not disclose to any third
party, the existence, source, content or substance of the Confidential
Information or make copies of Confidential Information; (iii) DGBI will
not deliver Confidential Information to any third party, or permit the
Confidential Information to be removed from DGBI's premises; (iv) DGBI
will not use Confidential Information in any way other than to develop
the Web Site as provided in this Agreement; (v) DGBI will not disclose,
use, or copy any third party information or materials received in
confidence by DGBI for purposes of work performed under this Agreement;
and (vi) DGBI shall require each of its employees who work on or have
access to the Confidential Information to sign a suitable
confidentiality and assignment agreement and be advised of the
confidentiality and other applicable provisions of this Agreement.
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7.3 LIMITATIONS. Information shall not be considered to be Confidential
Information if DGBI can demonstrate that it (i) is already or otherwise
becomes publicly known through no act of DGBI; (ii) is lawfully
received from third parties subject to no restriction of
confidentiality; (iii) can be shown by DGBI to have been independently
developed by it without use of the Confidential Information; or (iv) is
authorized in writing by Client to be disclosed, copied or used.
SECTION 8. WARRANTIES, COVENANTS AND INDEMNIFICATION
8.1 WARRANTIES AND COVENANTS OF DGBI. DGBI represents, warrants and
covenants to Client the following:
a. DGBI has the full power and authority to enter into this
Agreement and perform the services provided for herein, and
that such ability is not limited or restricted by any
agreements or understanding between DGBI and other persons or
entities;
b. Any information or materials developed specifically for, or
any advice provided to Client pursuant to this Agreement shall
not rely or in any way be based upon confidential or
proprietary information or trade secrets obtained or derived
by DGBI from sources other than Client, unless DGBI has
received specific authorization to use such proprietary
information or trade secrets;
c. The use of the DGBI Tools in the Web Site Content and
Documentation does not and will not violate the rights of any
third parties, including but not limited to, copyrights, trade
secrets, trademarks, publicity, privacy and patents;
d. DGBI's performance of this Agreement will not conflict with
any other contract to which DGBI is bound, and while
developing the Web Site, DGBI will not engage in any
consulting services or enter into any agreement in conflict
with this Agreement;
e. The Web Site Content and Documentation will be created by
DGBI's employees during the course of their employment, or
independent contractors who assigned all right, title and
interest worldwide in their work to DGBI, who are also subject
to the same non-disclosure obligations as the DGBI;
f. DGBI is the owner of all right, title and interest to the
tangible forms of the Web Site Content and Documentation and
all intellectual property rights protecting them. The Web Site
Content and Documentation and the
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intellectual property rights protecting them are free and
clear of all encumbrances, including, without limitation,
security interests, liens, charges, or other restrictions;
g. The Web Site Content and Documentation are not in the public
domain.
8.2 WARRANTIES AND COVENANTS OF CLIENT. Client represents, warrants and
covenants to DGBI the following:
a. Client has the full power and authority to enter into this
Agreement and perform those acts required of it herein, and
that such ability is not limited or restricted by any
agreements or understanding between Client and other persons
or entities;
b. Any information or materials provided to DGBI pursuant to this
Agreement shall not rely or in any way be based upon
confidential or proprietary information or trade secrets
obtained or derived by Client from third party unless Client
has received specific authorization to use such proprietary
information or trade secrets;
c. The use, public display, public performance, reproduction,
distribution, or modification of any Client Content licensed
to DGBI does not and will not violate the rights of any third
parties, including, but not limited to, copyrights, trade
secrets, trademarks, publicity, privacy and patents;
d. Client's performance of this Agreement will not conflict with
any other contract to which Client is bound, and during the
term of this Agreement, Client will not engage in any
consulting services or enter into any agreement in conflict
with this Agreement.
8.3 DGBI'S INDEMNITY. DGBI agrees to indemnify, defend and hold harmless
Client and its directors, officers, employees, and agents from and
against all claims, defense costs (including reasonable attorneys'
fees), judgments and other expenses arising out of or on account of
claims arising out of the following circumstances:
a. alleged infringement or violation of any trademark, copyright,
trade secret, right of publicity or privacy (including but not
limited to defamation), patent or other proprietary right with
respect to the Web Site Content or Documentation unless based
upon the use of the Client Content;
b. any use of confidential or proprietary information or trade
secrets DGBI has obtained from sources other than Client;
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c. any negligent act or omission of DGBI in the performance of
this Agreement;
d. the breach of any covenant or warranty set forth in Section
9.1, above.
8.4 CLIENT'S INDEMNITY. Client agrees to indemnify, defend and hold
harmless DGBI and its directors, officers, employees, sublicensees and
agents from and against all claims, defense costs (including reasonable
attorneys' fees), judgments and other expenses arising out of or on
account of claims arising out of the following circumstances:
a. alleged infringement or violation of any trademark, copyright,
trade secret, right of publicity or privacy (including but not
limited to defamation), patent or other proprietary right with
respect to the Web Site Content or Documentation which is
based upon the use of the Client Content;
b. any use of confidential or proprietary information or trade
secrets DGBI has obtained from Client;
c. any negligent act, omission or will conduct of Client in the
performance of this Agreement;
d. the breach of any covenant or warranty set forth in Section
9.2, above.
SECTION 9. TERM AND TERMINATION
9.1 TERM: The term of this Agreement shall begin immediately following the
date of execution hereof. The initial term hereof shall be two (2)
years (the "Initial Term"). Unless Client dictates otherwise in writing
within ninety (90) days prior to the expiration of the Initial Term,
this Agreement shall be automatically renewed thereafter for additional
two (2) year terms (the "Renewal Terms") following the expiration of
the previous term.
(a) FEE STRUCTURE: Fees for ongoing services provided shall remain
fixed for each term; however, the Parties shall agree in
writing on a fee structure for each Renewal Term, which fee
structure shall serve as an addendum to this Agreement. Should
the Parties fail to agree to a new fee structure, the fee
structure utilized in the previous term shall apply, with an
increase of no more than five percent (5%).
9.2 TERMINATION: This Agreement shall terminate upon the occurrence of any
one or more of the following events:
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(a) Either party fails to timely and properly perform any material
covenant, agreement, obligation, term, or condition contained
herein, and such failure continues for a period of sixty (45) days
after receipt by the defaulting party of written notice thereof
from the other party. The forty five (45) day cure period shall
not apply if the failure to perform is not capable of being cured.
It is understood and agreed that a failure on the part of Client
to provide DGBI with requested information necessary to complete a
deliverable item called for under this Agreement will not
constitute a breach by DGBI of any of its obligations hereunder.
(b) Upon the institution by or against DGBI or Client of insolvency,
receivership or bankruptcy proceedings or any other proceedings
for the settlement of the debts of either party; (ii) upon either
party making an assignment for the benefit of its creditors; or
(iii) upon either party's dissolution. Notwithstanding the
foregoing, any sums due to DGBI from Client that are unpaid at the
time of the act triggering termination under this subsection shall
remain due and payable and shall become a claim against Client or
Client's estate.
9.3 CONSEQUENTIAL DAMAGES: Under no circumstance shall either party be
liable to the other for lost profits, revenues, savings, or data, and
any other consequential, indirect, special, or incidental damages that
may arise from that a breach or default of the terms of this Agreement,
including any damages which may arise under any indemnities provided by
either party under this Agreement.
SECTION 10. GOVERNING LAW AND DISPUTE RESOLUTION
10.1 ARBITRATION. Any dispute between DGBI and Client which relate to or
arise out of this Agreement, shall be resolved by binding arbitration in
conducted by JAMS/Endispute and otherwise in accordance with the
Commercial Arbitration Rules of the American Arbitration Association,
except as otherwise mandated by law or governmental regulation. Any such
arbitration shall occur in Phoenix, Arizona. The fees and expenses of
the arbitrator for any arbitration under this Agreement shall be paid by
the losing party. Such arbitration shall be in lieu of either party's
rights to assert any claim, demand or suit in any court action. However,
notwithstanding the foregoing, either party may institute court action
solely for the purpose of obtaining injunctive relief.
10.2 GOVERNING LAW; VENUE. The validity, construction and performance of
this Agreement shall be governed by the laws of the State of Arizona,
and all claims and/or lawsuits in connection with this Agreement must
be brought in Maricopa County, Arizona.
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SECTION 11. MISCELLANEOUS PROVISIONS
11.1 NOTICES. For purposes of all notices and other communication required or
permitted to be given hereunder, the address of the parties hereto shall
be indicated below. All notices shall be in writing and shell be deemed
to have been duly given if sent by facsimile, the receipt of which is
confirmed by return facsimile, or sent by first class registered or
certified mail or the equivalent, return receipt requested, addressed to
the parties at their last known addresses.
11.2 ENTIRE AGREEMENT. This Agreement, including the attached Schedules which
are incorporated herein by reference as though fully set out, contains
the entire understanding and agreement of the parties with respect to
the subject matter contained herein, supercedes all prior oral or
written understandings and agreements relating thereto except as
expressly otherwise provided, and may not be altered, modified or
waived, in whole or in part, except in writing, signed by duly
authorized representatives of the parties.
11.3 FORCE MAJEURE. Neither party shall be held responsible for damages
caused by any delay or default due to any contingency beyond its
control preventing or interfering with performance hereunder.
11.4 SEVERABILITY. If any provision of this Agreement shall be held by a
court of competent jurisdiction or by an arbitrator to be contrary to
law, the remaining provisions shall remain in force and effect as if
said provision never existed.
11.5 ASSIGNMENT. This Agreement is personal to DGBI and Client. Neither DGBI
nor Client may sell, transfer, sublicense, hypothecate or assign its
rights and duties under this Agreement without the written consent of
the other party. No right of DGBI or Client hereunder shall devolve by
operation of law or otherwise upon any receiver, liquidator, trustee or
other party. This Agreement shall innure to the benefit of DGBI and
Client, together with their respective successors and assigns.
11.6 WAIVER AND AMENDMENT. No waiver, amendment or modification of any
provision of this Agreement shall be effective unless consented to by
both parties in writing. No failure or delay by either party in
exercising any rights, power or remedy under this Agreement shall
operate as a waiver of such right, power or remedy.
11.7 AGENCY. The parties to this Agreement are separate and independent legal
entities. DGBI is performing services for Client as an independent
contractor. Nothing contained herein shall be deemed to constitute
either DGBI or Client as agent, representative, partner, joint venturer,
or employee of the other party for any purpose. Neither party has the
authority to bind the other to incur any liability on behalf of the
other, nor to direct the employees of the other. DGBI is an independent
contractor,
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not an employee of Client. No employment relationship is created by
this Agreement. DGBI shall retain independent professional status
throughout this Agreement and shall use its own discretion in
performing the tasks assigned.
11.8 COUNTERPARTS. This Agreement may be executed in counterparts, with each
signed original being a full and legal original agreement.
11.9 LIMITATIONS ON LIABILITY; REMEDIES. EXCEPT AS PROVIDED FOR IN SECTION 8,
ABOVE WITH RESPECT TO INDEMNIFICATION, NEITHER PARTY SHALL BE LIABLE TO
THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE
DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, THE BREACH
OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH
LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING
NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF EITHER PARTY HAS
WARNED OR BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date set
forth above.
GARRA SCIENCES INC. DB CAPITAL MANAGEMENT, INC.
BY:__________________________________ BY:__________________________________
NAME:_______________________________ NAME:_______________________________
TITLE:________________________________ TITLE:________________________________
DATE:________________________________ DATE:________________________________
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SCHEDULE OF EXHIBITS
ATTACHMENT 1: PERSONNEL, FACILITIES, AND EQUIPMENT
EXHIBIT A: SPECIFICATIONS/PROJECT PLAN
EXHIBIT B: DEVELOPMENT AND PAYMENT SCHEDULE
EXHIBIT C: CLIENT CONTENT
EXHIBIT D: SUPPORT AND MAINTENANCE SERVICES AND FEES
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