WEB SITE DESIGN AND CONSULTING AGREEMENT
Agreement, effective as of June 1, 1999, by and between XXXXX
E-COMMERCE CORP, a Delaware corporation having an address at 0 Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000 ("Developer") and DIPLOMAT DIRECT MARKETING CORPORATION, a
Delaware corporation having an address at 000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000
("Client"), regarding Client's interest in securing the services of Developer to
design, develop, test, implement, launch and service a World Wide Web Site which
will be owned by Client and to provide various additional consulting and other
services after the site is successfully launched (the "Project").
The parties hereby agree as follows:
1. THE SITE. Client is planning to launch a new World Wide Web Site tentatively
entitled "_______" in conjunction and with the cooperation of Developer as the
initial hosting company (with the hosting company being identified as the
"Collaborator") and which will be devoted, at least initially, to issues related
to the women's apparel and accessories industry and infants' apparel and
accessories industry, and the Client's products and services, including but not
limited to women's apparel and accessories, infants' apparel and accessories,
and other materials and services manufactured and/or distributed, or otherwise
provided, by the Client (the "Site"). The Site, as presently contemplated, will
consist of the initial components set forth in EXHIBIT A (the "Site
Components"). The Site Components, as well as the contents therein and all
aspects whatsoever of the Site, may change as the Site is designed and
developed, and, thereafter from time to time as specified by Client (subject to
Developer's right to terminate this Agreement under Paragraph 9.1). All aspects
of the Site shall be subject to Client's approval, in its reasonable discretion.
As between Developer and Client, Client shall be solely responsible for the
editorial content of the Site.
2. DEVELOPER'S SERVICES. Developer confirms that it is experienced in the custom
design, development, launch and delivery of web sites and agrees to provide the
following services for the Site, all subject to Client's approval:
a) THE SITE AND LAUNCH MODULE. During Phase I of the Project, the Developer
shall design, develop, test, implement and launch the overall Site structure and
programming and shall develop the Site Components, both for the initial version
of the Site to be launched (the "Launch Module") and so as to accommodate
Additional Modules (see Paragraph 2(b) below). During Phase I of the Project
Developer shall deliver to Client's reasonable satisfaction all materials,
information, software, source code, documentation, guides, manuals and similar
material as are necessary for Client to maintain, update, edit, modify,
terminate, redesign and otherwise operate and service the Site. Developer shall
be responsible for the design, structure and implementation of all aspects of
the Site
to Client's reasonable satisfaction (other than the gathering and delivery to
Developer of editorial content therefor, which shall be the responsibility of
Client). As part of Developer's services required hereunder, but not in
limitation thereof, Developer shall:
(i) work and confer with Client throughout the design process to
ascertain both Client and Collaborator's design needs and requirements for the
Site;
(ii) design the look, operation, and programming of the Site,
including, without limitation, the functional specifications, user interface and
user interface specifications, technical design specifications, search and
retrieval software and graphic elements of the Site design (such as layout,
typeface, illustrations and photographs), both to accommodate Client's current
needs and so as to accommodate modifications and additions thereto as the Site
expands and changes;
(iii) develop and deliver necessary HTML programming;
(iv) incorporate Client Content (as hereinafter defined in Paragraph
3.1) for the launch;
(v) transfer Site files to Client's server;
(vi) fully test (and correct where needed) the Site and all Site
Components and aspects (conduct a soft launch - a Beta test in the staging area)
to Client's reasonable satisfaction;
(vii) launch the Site;
(viii) provide Client with all technical and design documents as well
as a troubleshooting guide needed to ensure that Client can with ease maintain,
update, modify, edit, cancel and otherwise operate the Site;
b) ADDITIONAL MODULES. At Client's request from time to time during the
Development Term (as defined in Paragraph 5), as Phase II of the Project
Developer agrees, if requested, to design, develop, implement, test and launch
Additional Modules subject to the fee schedule contained on Exhibit B, but only
to the extent that the requests are made in accordance with the Schedule annexed
hereto as EXHIBIT B (the "Schedule"). Additional Modules may update and expand
the entire Site, but also may include new material for the original Launch
Module.
c) DELIVERY. Developer agrees to submit to Client for its approval, and in
accordance with the Schedule, all of the Phase I Deliverables set forth in
EXHIBIT C and all of the Phase II Deliverables for each Additional Module
requested in accordance with the conditions of Paragraph 2(b) above
(collectively, the
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"Deliverables," and each separate item a "Deliverable"). Upon receipt, Client
shall promptly review and determine whether each such Deliverable materially
satisfies the acceptance criteria set forth in EXHIBIT C (as supplemented for
the acceptance criteria with respect to any Additional Modules). Client shall
give Developer prompt written notice if Client determines that a Deliverable
does not materially satisfy the acceptance criteria, and such notice shall in
detail set forth the deficiencies found in the Deliverables by Client. Developer
shall, at no cost to Client, promptly correct any such deficiencies. Upon
completion of the corrective action by Developer, Client will reconsider
acceptance of the Deliverable. If the Deliverable still does not materially
satisfy the acceptance criteria within thirty (30) days of Client 's notice of
disapproval, and the end of such period is beyond the specific dates for
Deliverable delivery in the Schedule (as it may be supplemented), Client may:
(i) terminate this Agreement in accordance with Paragraph 9; or (ii) require
Developer to continue to attempt to correct the deficiencies, reserving the
right to terminate in accordance with Paragraph 9. It is understood that Client
may be obligated to obtain the approval also of Collaborator.
d) ONGOING CONSULTATION. Developer agrees to consult, strategize and
coordinate with Client and, if requested by Client, with Collaborator,
throughout the provision of Developer's services hereunder to ensure Client's
reasonable satisfaction with and reasonable approval of each aspect of the Site.
e) MAINTENANCE, AND ONGOING SERVICE.
(i) If requested by Client, and for consideration to Developer as
specified on EXHIBIT D, Developer agrees to provide, at its sole cost and
expense, all maintenance required to correct defects, bugs, viruses, design
flaws and similar inherent problems in the Site, during the Development Term and
for a period of one year thereafter (the "Maintenance Term"); PROVIDED, that the
Developer is not obligated to provide additional maintenance services requested
by Client during periods beyond the Maintenance Term, without its specific
written approval, which approval may be withheld in Developer's full discretion;
and further PROVIDED, that the Developer shall at no time be obligated to
provide such maintenance services in the event that such services are required
due to Client's modification or editing of the Site without Developer's written
approval thereof, Client's destruction of the Site, or Client's license of the
Site for use and/or operation by any other person without Developer's prior
written consent.
(ii) In addition, but only during the Development Term, Developer
agrees to provide other specified design, maintenance and other services
requested by Client, at the fees set forth on EXHIBIT D; PROVIDED, that
Developer shall have the ability to reject such requests(s) based upon
Developer's reasonable determination of Client's inability to pay timely for
such services.
3. CLIENT PROVIDED CONTENT.
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3.1. Client shall be responsible for obtaining all licenses, sublicenses,
assignments, permissions, waivers or other rights or clearances necessary for
Developer 's incorporation of any content provided by Client ("Client Content")
into the Deliverables. Client shall deliver one (1) copy of each item of Client
Content to be provided by Client to be incorporate into a Deliverable. Client
shall provide to Developer as part of that copy all credits and/or attributions
which must be included in the Deliverable. Developer shall use each item of
Client Content provided by Client only in conjunction with the Deliverable for
which it was provided.
3.2. In the event that Client does not obtain the licenses, sublicenses,
assignments, permissions, waivers or other rights or clearances necessary to use
particular materials as Client Content in a Deliverable, Developer shall not be
obligated to incorporate such materials into the Deliverable.
4. RIGHTS IN DELIVERABLE.
4.1. Developer acknowledges that Client shall retain all title to and all
rights in any intellectual property provided by Client to Developer under this
Agreement.
4.2. The original content component of the Deliverables produced by
Developer shall be considered to be works made for hire for all purposes,
including for purposes of interpretation under the U.S. Copyright Law, 17 U.S.C.
ss.101 et seq. To the extent that such Deliverables are not construed to be
works made for hire, Developer shall, and hereby does, perpetually, and without
further consideration, assign all right, title and interest to such Deliverables
to Client. All right, title and interest in the original content component of
the Deliverables produced by Developer, including any copyright or other
proprietary right in the Deliverables, shall be the sole property of Client.
Notwithstanding the foregoing, except as provided in Section 4.3, nothing herein
should be construed to vest ownership of any right, title or interest to any
computer software component ("Software") of a Deliverable under this Agreement.
4.3. Developer, or its licensors, shall retain all right, title and
interest to Software. Developer hereby grants, which Developer represents it has
full right, power and authority to grant, to Client a perpetual, worldwide,
royalty-free license, or sublicense, to duplicate, exhibit, perform, transmit,
broadcast, distribute, maintain and modify Software, provided that such Software
is only used by Client in accordance with this Paragraph 4.3 in connection with
substantially all of the content component of the Deliverables provided by
Developer to Client for use in connection with the Site.
4.4. Developer agrees to execute and deliver any documents and take all
such other actions as may be necessary or desirable in order to carry into
effect the
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provisions of this Paragraph 4, including, without limitation, the execution of
assignments, copyright registrations and patent applications.
5. TERM. The term of this Agreement during which period Developer shall be
obligated to provide to Client the services described in Paragraph 2
(collectively, the "Developer Services") shall extend for a period of twelve
(12) months from the date of this Agreement (the "Development Term"). The
parties may extend the Development Term of this Agreement by mutual written
agreement.
6. RESERVED.
7. CLIENT'S SERVICES AND DELIVERABLES. Client shall be responsible for
a) obtaining and securing a domain name and address for the Site;
b) preparing, gathering and/or writing all Client Content (including
illustrations, photographs, charts, graphs and similar information and material
to accompany the editorial content) to be included in the Site, including all
licenses, etc., as referenced in Paragraph 3 of this Agreement;
c) delivering to Developer fully edited editorial content in a mutually
agreed upon digital format;
d) housing the Site on Client's server; and e) coordinating with
Collaborator on all aspects of the Site development, design and operation.
8. THE SCHEDULE. In order to meet the Client's requirements for the Project,
Client and Developer have together developed the Schedule. Developer shall
provide all of its services under this Agreement in accordance with the
Schedule, unless Client and Developer agree otherwise. No changes may be made in
the Schedule without the written consent of Client and Developer.
9. TERMINATION.
9.1.
a) Client may terminate upon ten (10) days' prior written notice this
Agreement in the event (i) Client has rejected any Deliverable in accordance
with the provisions of Paragraph 2(c) and Developer has failed to correct the
deficiencies during the specified time period, (ii) Developer fails to meet any
deadline in the Schedule (following a 15-day cure period), or (iii) Developer
otherwise materially breaches any of its obligations, representations or
warranties under this Agreement.
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b) Developer may terminate this Agreement upon ten (10) days' prior written
notice in the event that (i) Client fails to pay to Developer when due, after
three (3) days' prior notice of such failure to pay, the compensation amounts
required to be paid pursuant to Paragraph 12 and Schedule D, (ii) Client
materially changes the parameters for development of the Site or the Site
Components, (iii) Collaborator, other than Developer, unreasonably withholds its
approval of Developer's work product under this Agreement to the extent its
approval is necessary to launch the Site (if the initial collaborator is other
than Developer) or augment or maintain the Site, or (iv) Client otherwise
materially breaches any of its obligations, representations or warranties under
this Agreement. 9.2. Either party may terminate this Agreement, effective
immediately upon written notice if: (i) all or a substantial portion of the
assets of the other party are transferred to an assignee for the benefit of
creditors or to a receiver or to a trustee in bankruptcy; (ii) a proceeding is
commenced by or against the other party for relief under bankruptcy or similar
laws and such proceeding is not dismissed within sixty (60) days; or (iii) the
other party is adjudged bankrupt or insolvent. Termination of this Agreement
shall not relieve either party of any obligation accrued prior to the
termination date.
9.3. In the event Developer terminates this Agreement other than in
accordance with Paragraph 9.1(b) or Client terminates this Agreement in
accordance with Paragraph 9.1(a), then Client shall have no obligation to pay
any amounts owing under Paragraph 12, except for fees under Paragraph 12(a)
incurred prior to termination and the Royalties (as herein after defined) as
provided under Paragraph 12(b).
9.4. In the event Developer terminates this Agreement in accordance with
Paragraph 9.1(b) or Client terminates this Agreement other than in accordance
with Paragraph 9.1(a), then Client shall be obligated to pay (i) the amounts
owing under Paragraph 12(a) incurred prior to the date of termination, (ii) in
the event that such termination occurs prior to the Developer's receipt from
Client of aggregate Royalties of $500,000 Client shall continue to be obligated
to pay to Developer in cash (U.S. Dollars), within thirty (30) days of the date
of termination of this Agreement, the difference between $500,000 and the
aggregate amount of Royalties delivered to Developer prior to the date of
termination of this Agreement (which amount shall be credited as the payment of
Royalties for purposes of Paragraph 12(b)), and (iii) the Royalties owing under
Paragraph 12(c).
9.5. Termination of this Agreement shall not limit either party from
pursuing any remedies available to it for any breach of this Agreement. All
obligations of either party set forth in Paragraphs 4,9,12,16 and 17 of this
Agreement shall survive termination of this Agreement.
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10. CREDIT. Provided Developer fully performs its obligations hereunder,
Developer shall be entitled to receive the following credit in the Site, the
size and placement of which shall be mutually determined by Client and
Developer:
"----------------------"
11. OWNERSHIP. Client shall own the Site and all aspects thereof, except as set
forth in Paragraphs 3 and 4. Client shall have the right to modify, edit,
destroy, license, exploit or use the Site in any way, without compensation or
consultation with Developer, subject to the provisions of Paragraph 2(e).
12. CONSIDERATION. In recognition and acknowledgment of the market consulting
and e-commerce content services previously provided by Client to Developer, for
which services Developer has previously advanced $500,000 to Client, in full
consideration for all of Developer's services and Deliverables provided
hereunder for Phase I and Phase II through and including launch of Site and
completion and launch of the scheduled Additional Modules pursuant to Paragraph
2(b), if any, and the Schedule, Client shall compensate Developer as follows:
a) Developer shall receive the related fees and other compensation as set
forth on Exhibit D; and
b) Developer shall receive royalties (the "Royalties") based upon sales
(whether direct or indirect), fees, licenses, royalties, consulting, or any
other forms of revenue or compensation which are derived, directly or
indirectly, from electronic commerce [(which includes but is not limited to
commercial transactions which are in any way solicited, or initiated, or
conducted, or concluded, or otherwise consummated (subject to subsequent
delivery or transfer of the subject matter of the transactions) through use of
Worldwide Web Sites or otherwise through use of the Internet], with the
exception only of revenue or compensation generated under written agreements
entered into with Xxxxxxxxxxx.xxx, Inc. and Catalog City (the "Royalty
Activities"), which Royalties shall equal 5% of all quarterly revenues, net of
returned merchandise, generated by Client and its consolidated subsidiaries, as
determined under generally accepted accounting principles ("GAAP"), consistently
applied for purposes of Client's financial reporting obligations with the
Securities and Exchange Commission (the "SEC") from Royalty Activities (which
for purposes of this subparagraph, 12(b) only shall also include revenue and
compensation generated under written agreements entered into with
Xxxxxxxxxxx.xxx, Inc. and Catalog City), until Developer has received Royalties
in cash the aggregate amount of which equals $500,000. The amount of Royalties
for which Client is obligated to pay Developer under the terms of this
Subparagraph 12(b) shall be paid to Developer within forty-five days following
the last day of each fiscal quarter of client, commencing with the quarter ended
June 30.
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c) Client shall pay to Developer annually, not later than the Payment Date
(as defined herein), Royalties equal to twenty percent (20%) of Net EBIT (as
defined herein) generated by Client and its consolidated subsidiaries, from
Royalty Activities, in perpetuity, as provided herein. The period during which
Developer shall receive Royalties equal to twenty percent (20%) of Net EBIT
shall commence after Developer receives $500,000 from Client as provided in
subparagraph 12(b) above. For purposes of Paragraph 12(c), all as determined
under GAAP consistently applied by the Client's regular auditor for purposes of
Client's financial reporting obligations with the SEC, the capitalized terms
shall have the following meanings:
"Net EBIT" shall mean the amount, but not below zero, equal to EBIT for
the applicable fiscal year less the amount, if any, in the Offset Account.
"EBIT" shall mean revenues, net of returned merchandise, generated by
Client and its consolidated subsidiaries from Royalty Activities, less the sum
of:
(i) all direct expenses incurred in the Royalty Activities, including,
without limitation, cost of goods sold, costs of maintaining the Site and any
other Royalty Activities - related world wide web sites developed by the Client
or its consolidated subsidiaries, but excluding interest, amortization and
income taxes allocable to the Royalty Activities;
(ii) all variable indirect expenses of Client and its consolidated
subsidiaries allocable to the Royalty Activities (consistent with Client's
normal accounting procedures and practice, as such practices and procedures may
be amended from time to time), including, without limitation, costs of
order-entry, distribution and fulfillment, allocated based on the ratio of net
revenue of the Royalty Activities to net aggregate revenue of the Client and
consolidated subsidiaries; and
(iii) all fixed indirect expenses of Client and its consolidated
subsidiaries allocable to the Royalty Activities (consistent with Client's
normal accounting procedures and practice, as such practices and procedures may
be amended from time to time), including, without limitation, catalog production
and mailing costs, merchandising and marketing costs, allocated in accordance
with GAAP and Client's consistently applied reasonable allocation procedures, as
such procedures may be amended from time to time in accordance with GAAP;
(iv) with the calculation of EBIT, and each component thereof, being
all as determined under GAAP consistently applied by Client's regular auditor
for purposes of Client's financial reporting obligations with the SEC.
"Offset Account" shall mean the amount equal to, but not below zero, of
the aggregate negative EBIT for all periods, reduced by any EBIT.
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"Payment Debt" shall mean the 105th day after the last day of the
Client's fiscal year for purposes of Client's financial reporting obligations
with the SEC.
d) The obligation to pay Royalties to Developer, except by operation of
law, shall not be assignable by Client to any person without the written consent
of Developer, which consent may be withheld in Developer's full discretion; and
PROVIDED, FURTHER, that at the option of Developer, in the event of the sale,
conveyance or disposition of all or substantially all of the assets of Client,
the effectuation by the Client of a transaction or series of related
transactions in which more than 50% of the voting power of the Client is
disposed of, for the consolidation, merger or other business combination of the
Client with or into any other Person (as defined below) or Persons when the
Client is not the survivor, the Developer may terminate this Agreement on ten
(10) days' written notice and Client shall be required to distribute, upon
consummation of and as a condition to any such transaction(s) an amount equal to
the difference between $750,000 and the aggregate amount of Royalties previously
distributed to Developer (which amount shall be credited as the payment of
Royalties for purposes of this Paragraph 12). "Person" shall
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mean any individual, corporation, limited liability company, partnership,
association, trust or other entity or organization.
e) Along with any payment of Royalties made under this Agreement, Client
shall provide to Developer a written statement showing the detailed formula for
and the calculation of such Royalties (the "Statement"), which Statement shall
be certified by the Client's Chief Financial Officer or regular auditors that
made the related calculation of Royalties. In the event that Developer disputes
the amount of any payment of Royalties made by Client under the terms of this
Agreement, Client and its Chief Financial Officer or auditors shall promptly
submit such documentation for review by Developer and its representatives as
shall be reasonably requested by Developer within five business (5) days
following written request being given by Developer therefor. In the event that
Developer and Client fail to agree upon the amount of the related Royalties
payment within twenty-one (21) days following Developer's receipt of the
Statement, Developer shall be entitled to submit, but not later than 90 days
following Developer's receipt of the Statement, such dispute to arbitration by
the American Arbitration Association ("AAA"), through the adjudication by a
single arbitrator, in New York, New York, with the decision of such arbitrator
to be final and binding upon all parties. The fees, costs and expenses of such
arbitration, as submitted by the AAA, shall be borne equally by both Client and
Developer; PROVIDED, that each of Client and Developer shall pay the fees, costs
and expenses of its own counsel, accountants and other representatives in
connection with such arbitration. The parameters of the AAA proceedings
undertaken in accordance with this subparagraph 12(f) shall be prescribed such
that a decision shall be rendered within sixty (60) days following the initial
written reference of the related dispute to AAA arbitration by Developer. All
disputes with respect to the amount of any Royalties payment under the terms of
this Agreement shall be resolved by arbitration in accordance with this
subparagraph 12(f).
13. NO OBLIGATION TO PUBLISH. Nothing in this Agreement shall obligate Client to
launch, publish or continue to publish the Site; PROVIDED, that in the event
that Client (i) fails to launch the Site on or before September 1, 1999, or (ii)
fails to continue to publish the site for a period of at least five (5) years
from the date hereof (the "Publication Period"), and at all times during the
Publication Period Client does not use its best efforts to generate significant
revenue from use of the Site, or otherwise from electronic commerce generally,
then within thirty (30) days following its receipt of written notice from
Developer of a breach by Client of either subprovision (i) or (ii), Client shall
be obligated to pay to Developer the difference between $500,000 and the
aggregate amount of Royalties previously distributed to Developer (which amount
shall be credited as the payment of Royalties for purposes of Paragraph 12)
within thirty (30) days of written notification therefor given to Client by
Developer.
14. REPRESENTATIONS AND WARRANTIES.
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14.1.Developer represents and warrants to Client that: (i) Developer has
the full right, power and authority to enter into and to fully perform this
Agreement; (ii) the design of the Site and all design and programming aspects of
the Site as delivered by Developer shall be original and shall be owned by
Client as work for hire or by transfer of all rights, including the copyright
thereto; (iii) neither the design nor programming of the Site, nor any other
material or facet added to the Site by Developer (other than Client Content
supplied by Client) contains any libelous material or any material which
constitutes an invasion of privacy or publicity, or infringes any trademark,
copyright, patent, trade secret, or other intellectual property right; and (iv)
the Site as delivered by Developer shall be free of "bugs," viruses, defects or
design flaws.
14.2. Client represents and warrants to Developer that: (i) Client has the
full right, power and authority to enter into and to fully perform this
Agreement; (ii) to the extent that Client is required to obtain rights,
permissions and credit and/or attribution information with respect to the Client
Content, Client will do so accurately and completely; and (iii) the Client
Content provided by Client will not contain any libelous material or any
material which constitutes an invasion of any right of privacy or publicity, or
infringes upon any trademark, copyright, patent, trade secret or other
intellectual property right.
14.3. No party shall in any circumstances be liable to the other party or
any other party for any loss of business or profits, or any other indirect,
consequential, incidental, punitive or similar damages arising from the breach
of this Agreement, even if it has been advised of the possibility of such
damages.
14.4. THE WARRANTIES STATED HEREIN ARE LIMITED WARRANTIES AND THE ONLY
WARRANTIES MADE BY THE PARTIES. THE PARTIES WAIVE ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
15. INDEMNIFICATION.
15.1.During the Term of this Agreement and for one (1) year thereafter,
Developer shall indemnify and hold Client harmless from and against any and all
claims, demands, actions, losses, liabilities, damages, costs and expenses
(including, but not limited to, reasonable attorneys' fees) arising out of or
resulting from Developer 's material breach of Paragraph 14.1 of this Agreement,
provided that Client (i) notifies Developer promptly of any written claims or
demands against Client, (ii) gives Developer the opportunity to defend or settle
any such claim at Developer 's expense, and (iii) cooperates with Developer , at
Developer 's expense, in defending or settling such claim.
15.2. During the Development Term of this Agreement and for one (1) year
thereafter, Client shall indemnify and hold Developer harmless from and against
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any and all claims, demands, actions, losses, liabilities, damages, costs and
expenses (including, but not limited to, reasonable attorneys' fees) arising out
of or resulting from Client's material breach of Paragraph 14.2 of this
Agreement, provided that Developer (i) notifies Client promptly of any written
claims or demands against Developer , (ii) gives Client the opportunity to
defend or settle any such claim at Client's expense, and (iii) cooperates with
Client, at Client's expense, in defending or settling such claim.
16. CONFIDENTIALITY.
16.1.Each party shall retain in confidence and shall not, without the prior
written consent of the other party (the "Disclosing Party"), disclose in any
manner or use, except under the terms and prior to the termination of this
Agreement, any materials disclosed to a party (the "Receiving Party") by the
Disclosing Party and either marked at the time of disclosure as being
confidential or identified in writing by the Disclosing Party within thirty (30)
days of disclosure to the Receiving Party as being confidential ("Confidential
Information"); PROVIDED, that if the receiving Party is compelled by law
(whether through court order or subpoena) to disclose such Confidential
Information, the Receiving Party shall provide the Disclosing Party with prompt
notice of such compelled disclosure.
16.2. This Paragraph 16 shall impose no obligation upon the Receiving Party
with respect to any Confidential Information: (i) in the public domain at the
time received by Receiving Party; (ii) which enters the public domain other than
by breach of the Receiving Party's obligations hereunder; (iii) known to the
Receiving Party prior to receipt from the Disclosing Party; (iv) received by
Receiving Party from a third party if such third party has the right to make
such disclosure; or (v) independently developed by the Receiving Party without
access to Confidential Information.
16.3. Upon the Disclosing Party's request or termination of this Agreement,
the Receiving Party will, at its election, either promptly deliver to the
Disclosing Party or destroy all Confidential Information in every form in the
Receiving Party's possession.
17. GENERAL.
17.1.The relationship between the parties shall be that of independent
contractors. Nothing in this Agreement shall create, or be deemed to imply the
creation of, any partnership, joint venture or other relationship. Neither party
shall have the authority to incur any obligation, contractual or otherwise, in
the name or on behalf of the other party. Each party shall bear its own costs
and expenses in connection with performance of this Agreement.
17.2.This Agreement and any exhibits or appendices hereto constitute the
entire agreement between the parties with respect to the subject matter hereof
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and supersede all prior and contemporaneous communications. Neither this
Agreement nor any exhibits or appendices hereto shall be modified except by a
written agreement dated subsequent to the date of this Agreement and signed on
behalf of the parties by their respective duly authorized representatives.
17.3. If this Agreement shall be terminated or held by a court of competent
jurisdiction to be invalid, illegal or unenforceable as to particular
provisions, this Agreement shall remain in full force and effect as to the
remaining provisions.
17.4. No waiver of any breach of any provisions of this Agreement shall
constitute a waiver of any prior, concurrent or subsequent breach of the same or
any other provisions hereof or thereof, and no waiver shall be effective unless
made in writing and signed by the duly authorized representative of the party to
be charged.
17.5. All notices that Developer or Client may give to the other pursuant
to this Agreement shall be in writing and shall be hand delivered or sent by
registered or certified mail postage prepaid, return receipt requested, by
facsimile (with confirmation back), or by overnight courier service, postage
prepaid, to the parties at the addresses provided above or to such other address
or as either party shall designate by written notice given in accordance with
this Section, with notice being deemed given five days' after being deposited
with the United States mail, upon hand delivery, upon receipt of confirmation
back that a facsimile was received and one day after deliver to a nationally
recognized overnight courier service (if so deposited or delivered as described
above).
17.6. This Agreement shall be binding on Developer and Client and the
respective successors and permitted assigns of each party. Except as permitted
in this Agreement, no party may assign any of its rights or delegate any of its
obligations under this Agreement to any third party without the express written
consent of the other party, which consent may be withheld in either party's sole
discretion.
17.7. This Agreement between Developer and Client is not exclusive and the
parties are free to engage in other relationships of a similar nature with other
parties.
17.8. Client hereby grants Developer its permission to (i) disclose to
potential customers of Developer that Client is a customer of Developer , and
(ii) duplicate, exhibit, perform, transmit, broadcast and distribute
Deliverables to potential customers of Developer for purposes of publicizing
Developer's services.
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17.9. This Agreement shall be governed and construed in accordance with the
internal substantive laws of the State of New York without regard to its
conflicts of laws principles.
17.10. The section headings contained in this Agreement are for purposes of
convenience and reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
17.11. Neither party shall be in material breach if failure to perform any
obligation hereunder is caused solely by supervening conditions beyond that
party's control, including acts of God, civil commotions, strikes, labor
disputes and governmental demands or requirements.
17.12. This Agreement may be executed in counterparts which, when taken
together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto, each acting with proper
authority, have executed this Agreement under seal as of the 30th day of June,
1999.
XXXXX E-COMMERCE CORP. DIPLOMAT DIRECT MARKETING CORPORATION
By: /S/ XXXXX XXXXXXXXXX By: /S/ XXXXXX X. XXXXXX
Xxxxx Xxxxxxxxxx, President Xxxxxx X. Xxxxxx, President
- 15 -
EXHIBIT A
[Omitted]
EXHIBIT B
[Omitted]
EXHIBIT C
[Omitted]
EXHIBIT D
[Omitted]
