AGREEMENT 47598
BETWEEN
BATTELLE MEMORIAL INSTITUTE
PACIFIC NORTHWEST DIVISION
AND
WEB SAFE TECHNOLOGIES, INC.
Battelle Memorial Institute, through its Pacific Northwest Division (BATTELLE)
agrees to provide to Web Safe Technologies, Inc. (CLIENT) technical/research
services for the following tasks (the Project):
Work with ZKid Network Company staff to Interface the ZKid Network Company web
site to Battelle's MozartTM software system.
o Task 1: Meet with ZKid Network Staff in Richland and develop the
specifications for the product
o Task 2: Develop project plan, revised statement of work and
specifications for the Mozart integration
o Task 3: Execute the engineering per task 2 and the revised
statement of work
under the following terms and conditions:
1. PERIOD OF PERFORMANCE
BATTELLE's start date shall be the latter of either the BATTELLE representative
or the CLIENT representative signature dates of this Agreement. The Project
completion date is October 31, 2004, or sooner.
2. PAYMENT
BATTELLE estimates that the price to the CLIENT for performance of the Project,
will be Fifteen Thousand Dollars and No Cents ($15,000.00) in U.S. Dollars,
payable in advance upon signing of the agreement for approximately 130 hours of
work. If this payment is not received within 30days of the execution of this
Agreement, this Technical Services Agreement shall be null and void.
The amount stated above is an estimate of the costs and fee for the performance
of this Project. BATTELLE will use its best efforts to meet the Project
objectives within the time and funds available. CLIENT will not be required to
reimburse BATTELLE for costs and fee incurred in excess of the estimate set
forth above, and BATTELLE shall not be obligated to continue performance under
this agreement or otherwise to incur costs and fee in excess of the estimate
stated above, unless the estimate has been increased by written amendment to
this Agreement.
Payments not received by BATTELLE within 30 days of receipt of invoices by the
CLIENT shall accrue interest at a rate of twelve percent (12%) per annum and
BATTELLE may, at its option, suspend or terminate work on the project.
Payment by U.S. Mail shall be transmitted to:
(Banking information deleted to protect the privacy of Batelle)
For Electronics Funds Transfers, payment shall be made to the following:
(Banking information deleted to protect the privacy of Batelle)
Please Reference Agreement Number above on check or in "comments" section of
Electronic Funds Transfer.
3. INTELLECTUAL PROPERTY
Background Intellectual Property means all existing BATTELLE intellectual
property. No license to any Background Intellectual Property is granted or
implied under this Agreement. Any licensing of Background Intellectual Property
shall be the subject of separate licensing agreements negotiated between the
parties.
o Field of Use means systems for use in World Wide Web Internet
sites that may be accessed by children, where children are the
intended and primary audience and the site must be deemed as
"safe-for-kids" as the business objective of the licensee
BATTELLE Inventions means any invention, whether or not patented or patentable,
authored, conceived, or reduced to practice solely by BATTELLE under this
Agreement. BATTELLE shall own all BATTELLE Inventions. If the parties have
executed License Agreement No. 514770, which the parties were negotiating at the
time they entered into this Agreement, BATTELLE shall license all BATTELLE
Inventions, resulting from this Agreement, falling within the Field of Use to
CLIENT under the terms of the fully executed License Agreement No. 514770. Any
licensing of BATTELLE Inventions falling outside the Field of Use shall be the
subject of separate licensing agreements negotiated between the parties.
CLIENT Inventions means any invention, whether or not patented or patentable,
authored, conceived, or reduced to practice solely by CLIENT under this
Agreement. CLIENT shall own all CLIENT Inventions. Any licensing of CLIENT
Inventions shall be the subject of separate licensing agreements negotiated
between the parties.
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Jointly Developed Inventions means any inventions authored, conceived, or
reduced to practice jointly by BATTELLE and CLIENT under this Agreement. Jointly
Developed Inventions shall be jointly owned by BATTELLE and CLIENT. If the
parties have executed License Agreement No. 514770, which the parties were
negotiating at the time they entered into this Agreement, BATTELLE shall license
its undivided interest in Jointly Developed Inventions falling within the Field
of Use to CLIENT under the terms of the fully executed License Agreement No.
514770. CLIENT shall license its undivided interest in Jointly Developed
Inventions to BATTELLE for use outside the Field of Use under the terms of the
fully executed License Agreement No. 514770.
In the event CLIENT is in material breach of its payment obligations under this
Agreement, or is otherwise in material breach of its obligations under this
Agreement or the fully executed License Agreement No. 514770, no rights
described in this provision shall accrue to CLIENT.
In the event of a conflict between the Intellectual Property provision (above)
and that of License Agreement No. 514770, License Agreement No. 514770 shall
take precedence.
4. NO ENDORSEMENT/LITIGATION
BATTELLE does not endorse products or services. Therefore, CLIENT agrees that it
will not use or imply BATTELLE's name, or use BATTELLE's reports, for
advertising, promotional purposes, raising of capital, recommending investments,
or any way that implies endorsement by BATTELLE, except with prior written
approval of an officer of BATTELLE.
BATTELLE does not undertake Projects for the purposes of litigation or to assign
fault or blame and does not provide expert witness services. Therefore, CLIENT
agrees not to use any Project results in any dispute, litigation, or other legal
action.
In any event, if, at any time, BATTELLE or its employees are required to respond
to any subpoenas, orders for attendance at depositions, hearings or trials,
document requests, or other legal proceedings as a result of or relating to
BATTELLE's work on the Project, CLIENT agrees to reimburse BATTELLE, in addition
to any other amounts payable under this Agreement, BATTELLE's labor charges,
attorney time and/or fees, travel, photocopying and other miscellaneous
expenses.
5. CONFIDENTIALITY
BATTELLE agrees not to disclose the specific results of the Project as embodied
in reports and correspondence transmitted to CLIENT, and not available to the
public generally, without CLIENT'S written consent, except as required by law,
or except as necessary to protect BATTELLE's intellectual property rights, such
as filing for patent(s). Acceptance of this Agreement does not preclude
BATTELLE's undertaking work in this general field for others.
6. LIMITATION OF LIABILITY
BATTELLE will provide a high standard of professional service on a best efforts
basis. However, BATTELLE, as a provider of such services, cannot guarantee
success, thus BATTELLE MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR
MERCHANTABILITY, FOR ANY REPORT, DESIGN, ITEM, SERVICE OR OTHER RESULT TO BE
DELIVERED UNDER THIS AGREEMENT.
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CLIENT assumes responsibility for its use, misuse, or inability to use the
Project results and in no event shall BATTELLE have any liability for damages,
including but not limited to any indirect, incidental, or consequential damages,
arising from or in connection with this Agreement.
CLIENT agrees to indemnify and hold BATTELLE harmless from any and all
liabilities, suits, claims, demands, and damages, and all costs and expenses in
connection therewith, in any manner relatin to this Agreement or its
performance, asserted by third parties from any cause whatsoever, except for
injury or damage occurring during performance of the Project on BATTELLE-owned
premise where fault of CLIENT is not a contributing cause.
7. NATURE OF SERVICES
CLIENT agrees that BATTELLE is an independent contractor and specifically
acknowledges that BATTELLE is a service provider, not a manufacturer or
supplier. CLIENT retains all final decision making authority and all
responsibility for the formulation, design, manufacture, assembly, packaging,
marketing and sale of CLIENT'S products, including, without limitation, product
labeling, warnings, instructions to users, and for obtaining any governmental or
other pre- or postmarked approvals, certifications, registrations, licenses, or
permits.
8. FORCE MAJEURE
Neither CLIENT nor BATTELLE shall be liable in any way for failure to perform
any provision of this Agreement (except payment of monetary obligations) if such
failure is caused by any law, rule, or regulation, or any cause beyond the
control of the party in default.
9. USE PERMIT
Under the terms of Use Permit DE-GM060ORLO1831 between BATTELLE and the U.S.
Department of Energy, BATTELLE is permitted to use certain facilities and
equipment belonging to the U.S. Government that are located at BATTELLE'S
Pacific Northwest Division. In the event that such facilities or equipment are
utilized in performance of this Agreement, the provisions of the Use Permit are
required to be incorporated herein by reference. A copy of the applicable
provisions is available upon request or at the following web site:
xxxx://xxx.xxxxxxxx.xxx/xxxxxxxxxxxxxxxxxxx/XXXX-XxxXxxxxx.xxx
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10. EARLY TERMINATION
Either party shall have the right to terminate this Agreement upon thirty (30)
days' written notice for any good-faith basis. In the event of early
termination, BATTELLE agrees to provide CLIENT with all reports, materials, or
other deliverable items available as of the date of the termination, provided
that CLIENT is not in default of its obligations under this Agreement. In any
event, CLIENT agrees to pay all charges incurred or committed by BATTELLE,
including costs of termination, within (30)days of receipt of a final invoice.
11. ENTIRE AGREEMENT
This Agreement, including the Proposal incorporated herein, represents the
entire Agreement of the parties and supersedes any prior discussions or
understandings, whether written or oral, relating to the subject matter hereof.
This Agreement may be modified or amended only by mutual agreement in writing.
No course of dealing, usage of trade, waiver, or non-enforcement shall be
construed to modify or otherwise alter the terms and conditions of this
Agreement. In the event of any conflict or inconsistency between these terms and
conditions and the Proposal, these terms and conditions shall control.
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12. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the laws of
and enforced within the jurisdiction of the State of Washington.
13. MISCELLANEOUS
This Agreement may not be assigned in whole or in part without the prior written
approval of both parties. In any event, however, this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by and against the successors,
assigns and transferees of the parties. If any part of this Agreement shall be
held invalid or unenforceable, such invalidity and unenforceability shall not
affect any other part of this Agreement. Captions used as headings in this
Agreement are for convenience only and are not to be construed as a substantive
part of this Agreement.
WEB SAFE TECHNOLOGIES, INC. BATTELLE MEMORIAL INSTITUTE
Pacific Northwest Division
By /s/ Xxxx Xxxxxxx By /s/ Xxxx Xxxx
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Name Xxxx Xxxxxxx Name Xxxx Xxxx
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Title Vice President Title Contracting Officer
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Date April 30th, 2004 Date April 30th, 2004
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