Exhibit 10.4
DEVELOPMENT, ACCESS AND LICENSE AGREEMENT
This Development, Access and License Agreement ("Agreement") entered into as of
and effective _____ August l1,1999, 1999 ("Effective Date") between NetShepherd,
Inc. an _______Alberta ______ corporation ("NetShepherd") with principal offices
located at __________ 000-000 0xx Xxxxxx XX Xxxxxxx Xxxxxxx _________ and Online
System Services, Inc., a Colorado corporation which plans to change its name to
XXXX Interactive Services, Inc. ("XXXX") with principal offices located at 0000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 (collectively "the Parties"), determines
the rights and obligations of NetShepherd and XXXX with respect to the subject
matter of this Agreement.
Section 1: Background
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NetShepherd has developed and offers a distributed task force of individuals
connected to one another and to NetShepherd through the world wide web. Xxxx has
developed a set of community building tools which facilitate communication and
interactivity among individuals on the world wide web. NetShepherd and Xxxx
desire to create a technology and distribution relationship by integrating
Xxxx'x community building technology with NetShepherd's world wide web enabled
Task force.
Section 2: Definitions
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2.1 "Distributed Task Force" means the distributed task force of individuals
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connected by and performing services to customers of NetShepherd over the world
wide web, utilizing NetShepherd's proprietary systems.
2.2 "Intellectual Property Rights" means all current or future patent
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applications, patents, copyrights, trade secrets, trademarks, service marks,
domain names, mask works and other intellectual property rights enforceable at
any time under the laws and regulations of any jurisdiction anywhere in the
world.
2.3 "Modifications" means any error corrections, updates, revisions, new
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versions, new releases, improvements, translations, derivative works, or other
changes or additions to the Xxxx Community Tools (as defined below).
2 "NetShepherd Confidential Information" includes NetShepherd's client list
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and confidential information provided by NetShepherd Customers or NetShepherd
Contractors and all existing and future information identified in writing by
NetShepherd as confidential. NetShepherd Confidential Information excludes any
portion of information which: (1) is or becomes publicly available through no
act or failure of XXXX; (2) was or is rightfully acquired by XXXX from a source
other than NetShepherd; (3) is or becomes independently known or available to
XXXX without breach of this Agreement; (4) is independently developed by XXXX
without reference to the NetShepherd Confidential Information or (5) is required
to be disclosed by court order, after giving NetShepherd the opportunity to
appear before the court and protect its interests. NetShepherd Confidential
Information does not include the identity of NetShepherd Customers introduced to
NetShepherd by XXXX.
2.6 "Object Code" means machine executable computer software code in binary
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format, typically the result of processing the Source Code with an assembler or
compiler.
2.7 "Representatives" means an employee, officer, director, consultant,
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attorney, accountant or agent employed or retained by another entity.
2.8 "Source Code" means software in human-readable, high-level language form,
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which when compiled or assembled, becomes the executable Object Code of a
computer software program. Source Code means both human readable (listings) and
machine readable (source files) forms and shall include all tools and
documentation needed to build such computer software, as well as all flow
charts, programmer comments and design specifications for the computer software.
2.9 Xxxx Community Tools" means Xxxx'x Community Xxxx/XML platform including
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Xxxx'x discussion, chat, personal calendar, template-based page publishing and
community building components.
2.10 "XXXX Confidential Information" includes all existing and future (i) Source
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Code to the Xxxx Community Tools and Modifications made by XXXX, and (ii)
information identified in writing by XXXX as confidential. XXXX Confidential
Information excludes any portion of information which: (1) is or becomes
publicly available through no act or failure of NetShepherd; (2) was or is
rightfully acquired by NetShepherd from a source other than XXXX; (3) is or
becomes independently known or available to NetShepherd without breach of this
Agreement; (4) is independently developed by NetShepherd without reference to
the XXXX Confidential Information; or (5) is required to be disclosed by court
order, after giving XXXX the opportunity to appear before the court and protect
its interests.
2.11 "XXXX Trademarks" means the trademarks designated by XXXX for use by
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NetShepherd under this Agreement.
Section 3: XXXX Community Tools Integration and Delivery
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3.1 Integration Services. XXXX will perform the services set forth on Schedule
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A attached hereto, such services to be performed in accordance with the
suggested schedule therefor included on Schedule A, subject to such
modifications as mutually agreed by NetShepherd and XXXX.
3.2 Services of Xxxxx Xxxxxx. During the performance of the integration
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services, XXXX shall make available to NetShepherd the services of Xxxxx Xxxxxx,
a Senior Vice President of XXXX, for a period of three days, at a time or times
to be mutually agreed by NetShepherd and XXXX. In addition, during the Initial
Term (as hereinafter defined) of this Agreement, XXXX shall make available to
NetShepherd Xx. Xxxxxx'x services and other subject matter experts of Xxxx for a
total of up to 12 additional days as requested by Net Shepherd, such additional
days generally to be provided one day per month during the Initial Term as
mutually agreed by NetShepherd and XXXX.
Section 4: Ownership, License and Maintenance and Support
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4.1 License Grant. XXXX grants to NetShepherd and NetShepherd accepts,
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throughout the Term of this Agreement, a nonexclusive, nontransferable license
to use Xxxx Community Tools on the terms and conditions set forth herein (the
"License"), for use with Net Shepherd's Distributed Task Force.
4.2 Ownership Rights. Subject to the License, XXXX will retain all of its
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ownership rights in all Intellectual Property Rights in the Xxxx Community Tools
4.3 Restrictions on Transfer. Except as expressly provided herein, NetShepherd
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will not sell, assign or otherwise transfer the Xxxx Community Tools or any
portion thereof, to any third party without the prior written consent of Xxxx
not to be unreasonably withheld.
4.4 Restrictions on Disassembly and Reverse Engineering. To the extent that
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restrictions on disassembly and reverse engineering are allowed by applicable
law, NetShepherd will not disassemble or reverse engineer the Xxxx Community
Tools.
4.5 NetShepherd Data. XXXX will not claim any ownership in or rights to data
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or content originated by NetShepherd, including as same may be resident on
XXXX'x servers, and XXXX shall assign to NetShepherd, any such rights it may
acquire.
4.6 Restrictions on Modification. NetShepherd will not make any Modifications
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to the Xxxx Community Tools unless authorized by XXXX in writing.
4.7 Maintenance and Support. During the term of this Agreement, XXXX shall
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provide the following Maintenance and Support Services for the Xxxx Community
Tools at no additional charge:
(a) Problem reporting, tracking and monitoring, and communication to
NetShepherd by electronic mail via the Internet;
(b) Reasonable telephone support on business days for problem
determination, verification and resolution on a call-back basis during
the hours of 8 a.m. to 5 p.m. Mountain Time; and after normal working
hours support in the form of pager based response.
(c) Periodic software Modifications made by XXXX. XXXX will inform
NetShepherd by e-mail at least 48 hours prior to any major software
upgrade to the Xxxx Community Tools.
Section 5: Restrictive Covenants of the Parties
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5.2 Nonsolicitation or Hiring of Employees of the Other Party. During the Term
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of this Agreement and for one year thereafter, and to the extent lawful under
applicable laws and regulations, each party covenants and agrees not to solicit
or hire any employees of the other party.
5.3 NetShepherd Confidential Information. Throughout the Term of this
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Agreement and thereafter, XXXX covenants and agrees not to directly or
indirectly: (i) use any NetShepherd Confidential Information except in
furtherance of this Agreement (and any other agreements between the Parties) and
the interests of NetShepherd and (ii) disclose the NetShepherd Confidential
Information except to Representatives of XXXX who have agreed to keep such
information confidential and use such information only as authorized by this
Agreement.
5.4 XXXX Confidential Information. Throughout the Term of this Agreement and
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thereafter, NetShepherd covenants and agrees not to directly or-indirectly: (i)
use any XXXX Confidential Information except in furtherance of this Agreement
(and any other agreements between the Parties) and the interests of XXXX and
(ii) disclose the XXXX Confidential Information except to Representatives of
NetShepherd who have agreed to keep such information confidential and use such
information only as authorized by this Agreement.
Section 6: Hosting of the Xxxx Community Tools
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6.1 Hosting Commitment by XXXX. XXXX will host on XXXX servers, operate, and
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allow continuing access to the Xxxx Community Tools by and for the benefit of
NetShepherd, until the earlier of (a) the expiration or termination of this
Agreement or (b) the changeover to the hosting of the Xxxx
Community Tools on NetShepherd's servers under Section 6.3 below. If this
Agreement and the License continue in effect more than one (1) year after the
Effective Date, XXXX may at any time require NetShepherd to take over the
hosting and operation of the Xxxx Community Tools, provided that it gives
NetShepherd at least 90 days advance written notice and reasonable assistance
and training. Xxxx will not collect any data on NetShepherd's Distributed Task
Force's use of the Xxxx Community Tools other than data related to traffic and
performance management.
6.2 Third Party Costs. NetShepherd will also be responsible for the costs paid
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to third parties for third party content, technology and services that
NetShepherd specifically requests be integrated into the Xxxx Community Tools.
6.3 Optional Hosting by NetShepherd. At any time after four (4) months of the
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Effective Date, NetShepherd may elect to take over the hosting of the Xxxx
Community Tools from XXXX. Promptly after making that election. XXXX will
provide NetShepherd one copy of the Object Code to the Xxxx Community Tools to
enable NetShepherd to commence and continue, at its expense, the hosting and
operation of the Xxxx Community Tools for use in accordance with the License.
6.4 Reference to "Powered by" XXXX. So long as either XXXX or NetShepherd is
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hosting and operating the Xxxx Community Tools for the benefit of NetShepherd,
(a) NetShepherd shall include a reference that the web site management tools are
"powered by" XXXX or other mutually agreed XXXX branding; and (b) NetShepherd
shall include a XXXX icon in the NetShepherd site. XXXX further reserves the
right to modify this branding from time to time, and shall reserve the right to
replace any associated branding and references, with reasonable notice to
NetShepherd.
Section 7: Xxxx Community Tool Integration Fee and License Fee
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7.1 Fee for Services. For the performance of the services as set forth on
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Schedule A, NetShepherd shall pay Xxxx a fee of $200,000 (U.S.) to be made
in two parts
7.2 Part I Fees for professional consultation services, functional
specifications and a demonstration prototype $66,000
These fees are payable on or before September 30,1999 assuming materially
all these services have been provided.
Part 2 Integration Services for transferring of the technology to the
NetShepherd platform
$134,000
The above fee is payable on or before December 31, 1999 assuming materially
all these services have been provided..
If Xxxx has not provided materially all the services in conformance with
the timelines set out in Schedule A, NetShepherd may terminate if Xxxx does not
materially complete these services within 30 days of receiving notice from
NetShepherd requesting such completion.
7.2 License Fee. For any license for the use of the Xxxx Community Tools other
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than
the License, NetShepherd shall pay XXXX a license fee to be negotiated on a case
by case basis, such fee to be determined quarterly and paid to XXXX within 30
days of the end of each quarter for which a fee is due.
7.3 Expenses. Net Shepherd shall reimburse XXXX for all reasonable out-of-
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pocket expenses incurred by Xxxxx Xxxxxx in the performance of services in
accordance with the terms of this Agreement, any expenses in excess of $500.00
to be pre-approved by NetShepherd
7.4 Taxes. NetShepherd will pay or reimburse XXXX for any withholding taxes,
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sales, use or similar taxes, if any, based on the integration services or the
License, excluding taxes based on XXXX'x taxable income or gain.
7.5 Late Fee. In addition to XXXX'x other remedies, if NetShepherd fails to
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pay XXXX any amounts when due under this Agreement, NetShepherd will pay
interest on that amount at the rate of 1.5% per month or such lesser maximum
rate of interest permitted under applicable law.
Section 8: Representations and Agreements of NetShepherd
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8.1 Authority and Compliance. NetShepherd represents and warrants to XXXX
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that:
(a) NetShepherd is duly organized, validly existing and in good standing
under the laws of _________Alberta, Canada _____and has all requisite
rights, power and authority to enter into and perform its obligations
under this Agreement;
(b) The person signing this Agreement for NetShepherd is duly authorized
to execute this Agreement on NetShepherd's behalf,
(c) NetShepherd has secured and will keep in effect throughout the Term of
this Agreement all necessary licenses, permits and authorizations to
enable it, and all Representatives acting on NetShepherd's behalf, to
perform all of NetShepherd's obligations under this Agreement, and
will notify XXXX immediately should any such license, permit,
authorization or rights no longer be in effect or in good standing;
(d) NetShepherd will comply with all applicable laws and regulations in
the performance of its obligations under this Agreement
8.2 NetShepherd Expenses. Unless this Agreement expressly requires
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reimbursement by XXXX, NetShepherd will bear and pay all costs and expenses
incurred by NetShepherd pursuant to this Agreement.
8.3 Ownership of XXXX Trademarks; Notices. NetShepherd acknowledges and agrees
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that, except for the limited nonexclusive license under this Agreement,
NetShepherd will not acquire any Intellectual Property Rights to the XXXX
Community Tools and XXXX Trademarks and that all such rights will remain the
sole property of XXXX. NetShepherd will not remove any patent, copyright,
trademark or other intellectual property notice appearing on the Xxxx Community
Tools.
8.4 NetShepherd's Books and Records; Inspection. During the Term of this
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Agreement and for one year thereafter: (a) NetShepherd will maintain true and
correct books and records pertaining to this Agreement and the payments
hereunder, and (b) XXXX shall have the right to engage an independent certified
public accountant, at its expense, to inspect, copy and audit the books and
records of NetShepherd pertaining to this Agreement for the sole purpose of
verifying the accuracy of payments made hereunder, subject to the
confidentiality obligations for NetShepherd Confidential Information.
Section 9: Representations and Agreements of XXXX
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9.1 Authority and Compliance. XXXX represents and warrants to NetShepherd
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that:
(a) XXXX is duly organized, validly existing and in good standing under
the laws of the State of Colorado and has all requisite rights, power
and authority to enter into and perform its obligations under this
Agreement;
(b) The person signing this Agreement for XXXX is duly authorized to
execute this Agreement on XXXX'x behalf;
(c) XXXX has secured and will keep in effect throughout the Term of this
Agreement all necessary licenses, permits and authorizations to enable
it, and all Representatives acting on XXXX'x behalf to perform all of
XXXX'x obligations under this Agreement, and will notify NetShepherd
immediately should any such license, permit, authorization or rights
no longer be in effect or in good standing;
(d) Throughout the Term of this Agreement, XXXX will have obtained at its
expense all necessary permissions to use the XXXX Trademarks and Xxxx
Community Tools as described in this Agreement.
(e) XXXX will comply with all applicable laws and regulations in the
performance of its obligations under this Agreement
9.2 XXXX Expenses. Unless this Agreement expressly requires reimbursement by
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NetShepherd, XXXX will bear and pay all costs and expenses incurred by XXXX
pursuant to this Agreement.
9.3 Ownership of NetShepherd Trademarks; Notices. XXXX acknowledges and agrees
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that XXXX will not acquire any Intellectual Property Rights to any NetShepherd
Materials or Trademarks under this Agreement and that all such rights will
remain the sole property of NetShepherd or its suppliers.
9.4 Performance Warranty and Disclaimer of Other Warranties. XXXX hereby
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warrants that the Xxxx Community Tools shall operate in substantial conformance
with the specifications therefor. THE FOREGOING WARRANTIES BY XXXX ARE IN LIEU
OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section 10: Indemnification
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10.1 Indemnification by NetShepherd. NetShepherd will hold XXXX and its
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Representatives harmless from, and defend and indemnify XXXX and its
Representatives against, any and all claims, losses, damages and expenses,
including reasonable attorneys' fees, arising from a third party claim against
XXXX or its Representatives to the extent that such third party claim is based
on: (a) the negligence or willful misconduct of NetShepherd or its
Representatives, or (b) claims of infringement of Intellectual Property Rights
against XXXX or its Representatives for its authorized use of NetShepherd
Trademarks under this Agreement.
10.2 Indemnification by XXXX. XXXX will hold NetShepherd and its Representatives
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harmless from, and defend and indemnify NetShepherd and its Representatives
against, any and all claims, losses, damages and expenses, including reasonable
attorneys' fees, arising from a third party claim against
NetShepherd or its Representatives to the extent that such third party claim is
based on: (a) the negligence or willful misconduct of XXXX or its
Representatives or (b) claims of infringement of Intellectual Property Rights
against NetShepherd or its Representatives for its authorized use of the Xxxx
Community Tools or XXXX Trademarks under this Agreement.
10.3 Procedure for Indemnification. If a third party asserts a claim that is
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eligible for indemnification under Sections 10.1 or 10.2: (a) the indemnified
Party will promptly notify the indemnifying Party of the suit or claim; (b) the
indemnified Party will give the indemnifying Party sole authority to defend or
settle the suit or claim, provided that the indemnifying Party does not agree to
a settlement of the suit or claim unless the settlement is reasonably acceptable
to the indemnified Party; (c) the indemnified Party will provide to the
indemnifying Party all information in its control concerning the suit or claim;
and (d) the indemnified Party will reasonably cooperate with the defense of the
suit or claim. The indemnification obligations under Sections 10.1 and 10.2 are
subject to and conditioned upon compliance with this Section 10.3 by the
indemnified Party.
Section 11: Limitations of Liability
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11.1 Excusable Delay. Neither NetShepherd nor XXXX will be deemed to be in
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default of any provision of this Agreement or for any failure in performance,
resulting from acts or events beyond the reasonable control of NetShepherd or
XXXX, as the case may be including, without limitation, acts of God, civil or
military authority, civil disturbance, war, strikes, fires, other catastrophes,
telecommunication outages, equipment malfunctions or other such major events
beyond NetShepherd's or XXXX'x reasonable control.
11.2 Liability Exclusion. EXCEPT FOR EITHER PARTY'S OBLIGATIONS TO THIRD
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PARTIES PURSUANT TO SECTION 10, INDEMNIFICATION, IN NO EVENT SHALL NETSHEPHERD
OR XXXX BE LIABLE TO EACH OTHER FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES,
INCLUDING LOST PROFITS. NEITHER PARTY SHALL SEEK, OR OTHERWISE APPLY FOR, ANY
PUNITIVE OR EXEMPLARY DAMAGES.
Section 12: Term and Termination
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12.1 Term. This Agreement will become effective as of the date first written
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above and will continue in effect for a period of one (1) year (the "Initial
Term"), subject to renewal or earlier termination as provided in Sections 12.2
or 12.3 below ("Term").
12.2 Renewal. The Term of this Agreement will automatically renew for
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successive 12-month periods unless either Party provides the other Party written
notice of termination at least 90 days before the scheduled expiration of the
then current Term.
12.3 Termination. The Term and this Agreement may be terminated only as
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follows:
(a) Either Party may elect not to renew the Term of this Agreement
pursuant to Section 12.2 above, in which case the Term and this
Agreement will terminate upon expiration of the then current Term.
(b) Either Party may, at its discretion, elect to terminate this
Agreement effective upon 30 days advance written notice to the
other Party stating that such Party is in material default under
any of the provisions of this Agreement, unless such default is
timely cured within
such 30-day notice period. Any notice of termination under this
Section 12.3(b) will state the basis for the alleged default and
the measures reasonably necessary to cure such default
(c) XXXX may elect to terminate the Term and this Agreement upon at
least 90 days advance written notice to NetShepherd after the end
of any calendar quarter for which XXXX has not received the Minimum
Payments under Section 7.1, 7.2 or 7.3 above.
(d) The Parties may terminate this Agreement at any time by mutual
written agreement.
12.4 Rights and Obligations Upon Termination or Nonrenewal. Upon the nonrenewal
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or earlier termination of the Term of this Agreement by either Party:
(a) Both Parties will be relieved of all obligations under this
Agreement, except for those obligations which expressly survive
termination of this Agreement,
(b) Each Party will, at its expense and at the request of the other,
promptly return to the other any Confidential Information of the
other,
(c) The Parties will promptly pay to each other the payments due and
payable hereunder through the date of termination or expiration.
12.5 Survival. The terms and provisions of Sections 4.2, 4.5, 5.2, 5.3, 5.4, 8,
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9, 10, 11, 12.4 and 13 (inclusive) of this Agreement will survive and remain in
effect pursuant to their terms after the expiration or any earlier termination
of the then current Term of this Agreement by either Party.
Section 13: General
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13.1 Governing Law. This Agreement is governed by and construed in all respects
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in accordance with the laws of the State of Colorado, without regard to
conflicts of laws principles.
13.2 Dispute Resolution. Parties agree that all disputes arising as a result of
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or in connection with this Agreement will be mutually resolved, except that if
Parties are unable to mutually resolve such disputes within 60 days, one or both
of the Parties will submit the dispute for arbitration. At least 30 days before
either Party initiates arbitration proceeding, authorized Representatives of
NetShepherd and XXXX will review and become familiar with the subject matter of
the dispute, and meet in person or by telephone to review and attempt to resolve
the dispute in good faith. Except only for disputes for which injunctive relief
is sought by either Party, any disputes between the Parties (which arc not
otherwise resolved by the Parties) will be submitted to binding arbitration in
Denver, Colorado, before one arbitrator, with the venue and proceedings in
accordance with the then prevailing commercial rules of the American Arbitration
Association. NetShepherd and XXXX each waive their right to a trial by jury for
any disputes between the Parties.
13.3 Rights and Remedies. The Parties acknowledge that the unauthorized use or
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disclosure of Confidential Information, or the unauthorized use of the
NetShepherd Trademarks, the XXXX Trademarks or the Xxxx Community Tools may
result in immediate and irreparable injury and harm, and may cause damages in
amounts difficult to ascertain. Accordingly, upon such breach, which has not
been timely cured, the owning Party of such property will be entitled to seek an
injunction and other legal or equitable remedies, subject to the limitations in
Sections 10 and 11 above. All rights and remedies will be cumulative, and the
exercise of any one of them will not be deemed to be a waiver of any other.
13.4 Protection of Trademarks. NetShepherd and XXXX will at all times use the
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trademarks of the other in a-manner which will not diminish the rights of the
trademark owner.
13.5 Assignment. Neither Party may assign this Agreement or any of its
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respective rights or obligations under this Agreement unless approved in
writing, prior to such assignment, by the other Party, such approval to not be
unreasonably withheld. Notwithstanding the foregoing, either Party may assign
its rights and obligations under this Agreement, upon notice to the other Party
and without the other Party's approval or consent, if such assignment is in
connection with the sale of substantially all of the business of the assigning
Party related to this Agreement
13.6 Headings. The section headings in this Agreement are for convenient
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reference and are not a part of this Agreement.
13.7 Waiver. No waiver of any breach of any provision of this Agreement will
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constitute a waiver of any prior, concurrent, or subsequent breach of the same
or any other provisions hereof, and no waiver will be effective unless made in
writing.
13.8 Notices. Any notice required or permitted to be given under this
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Agreement will be sufficient if in writing and delivered personally or via fax
(all fax notices will also be mailed in accordance with this Section 13.8) or
sent by registered or certified mail, postage prepaid and return receipt
requested, or sent by overnight courier to the attention of the "President" at
the Parties' respective addresses set forth above (or to such other address as
the Parties will designate by notice to the other in accordance with this
Section 13.8) and will be deemed to have been given as of the date of receipt.
13.9 Amendments. This Agreement can be modified or amended only by written
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agreement signed by the Parties.
13.10 Severability. If any provision of this Agreement is held to be illegal,
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invalid or unenforceable under present or future laws effective during the Term
hereof, such provision will be fully severable; this Agreement will be construed
and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof; and the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of each such illegal, invalid or unenforceable provision,
there will be added automatically as a part of this Agreement a provision which
reflects the intent of the Parties and is as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid and
enforceable.
13.11 Counterparts. This Agreement may be executed manually or via fax and in
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one or more counterparts.
13.12 Construction. If an ambiguity or question of intent arises, this
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Agreement will be construed as if drafted jointly by the Parities and no
presumption or burden of proof will arise favoring or disfavoring either Party
by virtue of authorship of any of the provisions of this Agreement.
13.13 Agreement Expenses. Each of the Parties will pay their own expenses and
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legal fees incurred before the execution of this Agreement.
13.14 Time Limitation. Except for actions for breach of a Party's intellectual
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property rights and any claims for which either party has an indemnification
obligation pursuant to Section 10, no action arising out of or relating to this
Agreement may be brought later than two (2) years after the cause of action
became known to the injured Party.
13.15 Publicity. Neither Party will make any public release or announcement
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regarding the terms or existence of this Agreement except as may be required by
law, including the federal securities laws, without the prior consent of the
other Party, which consent will not be unreasonably withheld.
13.16 Relationship of the Parties. NetShepherd and XXXX are each independent
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businesses. Neither Party nor its respective employees and representatives can
or shall make any agreements, warranties, representations, promises or covenants
on behalf of or for the other Party or any third party, unless approved in
advance in writing by the other Party. This Agreement shall not be construed as
a partnership or franchise for any purpose or reason, whether implied, expressed
or statutory.
13.17 Complete Agreement. This Agreement contains the complete agreement
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between the Parties concerning the subject matter hereof and supersedes all
prior understandings, letters of intent, proposals or agreements, and all prior
communications between the Parties relating to the subject matter of this
Agreement. No representation, warranty, promise, inducement or statement of
intention has been made by either Party which is not embodied in this Agreement.
13.18 XXXX Community Members. During the Term of this Agreement, XXXX will use
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its reasonable best efforts to give NetShepherd access to the members of
XXXX'x various communities, to the extent that it may do so without
violating the rights or privacy of such parties, or XXXX'x contracts or
agreements, for the sole purpose of permitting NetShepherd to recruit
such persons for NetShepherd's distributed task force. Net Shepherd Inc.
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shall pay Xxxx a fee of $1.00 for every member of Xxxx'x company that
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becomes an active Net Shepherd's Task force participant as a result of
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Xxxx'x invitation to participate..
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The Parties have executed this Agreement as of the Effective Date.
NETSHEPHERD, INC. ("NetShepherd") ONLINE SYSTEM SERVICES, INC. ("XXXX")
By____________________________ By ___________________________________
Title_________________________ Title ________________________________
SCHEDULE 'A'
Scope Of Work
The following table outlines a draft scope of work to be undertaken by Net
Shepherd and Xxxx. Integration of Xxxx'x community tools will be in two phases
as noted. All tools will be part of version 4.0 of the Xxxx suite of tools.
Task Phase Scope
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Integrated 1 . Xxxx will provide a way for Net Shepherd to pass their
Registration/ members' login data to make signing in to any service hosted by
Sign-In Xxxx transparent to the user.
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Add Discussions 1 . Include Xxxx'x discussions into Net Shepherd custom browser.
(The Member's Journal)
. Xxxx will pre-populate the discussion with Net Shepherd's
chosen discussion and topic names.
. Net Shepherd will modify their custom browser to accommodate
the new link.
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Add Chat 1 . Include Xxxx'x chat into Net Shepherd browser.
. Net Shepherd will modify their custom browser to accommodate
the new link.
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Customized Xxxx Me 1 . Custom-branded, custom look & feel Xxxx Me page, including
ability to change all the graphics, delete any elements and
change the layout of the page. Net Shepherd to provide
direction. Net Shepherd or Xxxx to develop graphics, as
determined by Net Shepherd.
. No additional dynamic elements will be included.
. There is the possibility that this page can include updated
news/information from Net Shepherd. To be determined based on
other content on the page.
. If links are included that go to other Xxxx offerings, these
other offerings will not be customized in look & feel.
. Net Shepherd will modify its custom browser to accommodate
the new link.
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Personal Calendar 1 . Include Xxxx'x personal calendar into Net Shepherd's browser.
. Net Shepherd will modify their custom browser to accommodate
the new link.
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Email Services 1 . Net Shepherd will evaluate Xxxx'x e-mail services to
determine integration suitability.
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Personal Home Page 2 . Home page hosting will be implemented as part of a second
Hosting phase of integration of the Xxxx tools.
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Community Building 1 . Xxxx will provide version 4 of its community building tools
Tools so that Net Shepherd's community members and contracted
customers may create branded, sub-communities of the Internet
Explorers society. (Net Shepherd's virtual community)
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