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EXHIBIT 10.12
AMENDED AGREEMENT
THIS AGREEMENT is made as of this 21st day of March, 1997, by
and between ON'VILLAGE COMMUNICATIONS, INC., a California corporation (formerly
named E. VENTURES, INC.), having its principal place of business at 000 Xxxxx
Xx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter
"On'Village"), and NETWORK PUBLISHING, INC., a Utah corporation, having its
principal place of business at Xxx Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxx 00000
(hereinafter "NPI").
WHEREAS, On'Village (as assignee of its organizers) and NPI
entered into a letter of agreement dated as of October 24,
1995 (hereinafter "Letter Agreement"); and
WHEREAS, On'Village and NPI desire to restructure their
relationship and to amend the Letter Agreement as hereinafter
provided;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereby agree as follows:
1. Effect of Letter Agreement. The Letter Agreement is superseded by
this Agreement, and shall be of no further force or effect. From and after the
date of this Agreement, the rights and obligations of the parties to each other
shall be as set forth in this Agreement, without regard to the Letter
Agreement.
2. Employment of Xxxx Xxxxxxx.
(a) The parties acknowledge that Xxxx Xxxxxxx has prior to the
date of this Agreement been employed solely by NPI and, in such capacity, has
been primarily responsible for development of the "Software" (as hereinafter
defined). The parties further acknowledge that NPI has unpaid contingent
compensation obligations to Xxxx Xxxxxxx based in part upon the future revenue
which would have been earned by NPI and payable by On'Village pursuant to the
Letter Agreement.
(b) The parties agree that, from and after the date of this
Agreement, Xxxx Xxxxxxx shall be employed solely by On'Village, pursuant to the
terms of a separate agreement between On'Village and NPI to be executed
concurrently herewith. The parties further agree that On'Village is assuming
certain compensation obligations of NPI to Xxxx Xxxxxxx, provided, however,
that the
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compensation payable to Xxxx Xxxxxxx shall be only as set forth in the new
agreement between On'Village and Xxxx Xxxxxxx and such assumption by On'Village
is strictly limited to the amounts provided for therein. NPI may as necessary
enter into its own agreement(s) with Xxxx Xxxxxxx consistent with the terms of
this Agreement.
3. Software.
(a) Pursuant to the Letter Agreement, NPI has developed certain
software used by On'Village in its search engine and otherwise in connection
with its Internet site, including software which has been completed and is in
present use and software which is incomplete and/or under continuing
development, all of which is herein referred to as the "Software". Upon
execution of this Agreement, all right, title, copyright and interest in the
Software is assigned and transferred to On'Village, for its exclusive use
hereafter.
(b) From and after the date of this Agreement, On'Village shall
undertake sole responsibility for development of all software required in
connection with its Internet site and the operation and maintenance thereof;
provided, however, the parties acknowledge and agree that NPI may from time to
time assist in the development of such software incidental to providing the
services to On'Village as provided in this Agreement or a separate Service
Agreement, and NPI acknowledges and agrees that any such assistance and any
software or enhancements which may arise out of such assistance shall
immediately become and remain the sole property of On'Village.
4. Equipment.
(a) NPI has purchased server hardware, which is presently in use
at NPI's facility for the On'Village website, which equipment is described in
Schedule "A" attached to this Agreement (the "NPI Hardware").
(b) Pursuant to a separate Service Agreement of even date
herewith, NPI shall continue to make the NPI Hardware available for use by
On'Village. In the event of the termination of the Service Agreement,
On'Village shall have the option, exercisable at its option by written notice
to NPI given not later than sixty (60) days after the effective date of such
termination, to purchase from NPI the NPI Hardware. The purchase price shall
be equal to the fair market value of the NPI Hardware as of the termination
date, and shall be paid by On'Village to NPI in full on the purchase date.
(c) On'Village has also purchased certain hardware equipment which
has been attached to or otherwise is used in conjunction with the NPI Hardware,
which equipment is described in Schedule "B" to this Agreement (the "OV
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Hardware"). In lieu of any and all royalty payments accrued in conjunction with
Letter Agreement, NPI will take possession of the OV Hardware.
(d) Pursuant to a separate Service Agreement of even date
herewith, NPI shall continue to make the OV Hardware available for use by
On'Village. In the event of the termination of the Service Agreement,
On'Village shall have the option, exercisable at its option by written notice
to NPI given not later than sixty (60) days after the effective date of such
termination, to purchase from NPI the OV Hardware. The purchase price shall be
equal to the fair market value of the OV Hardware as of the termination date,
and shall be paid by On'Village to NPI in full on the purchase date.
(e) The parties acknowledge that additional computer hardware
equipment is now required to properly operate and maintain the site, and that
additional equipment may be required from to time hereafter (the "New OV
Equipment"). It is understood and agreed that On'Village shall be responsible
at its sole cost and expense to acquire and to provide all such additional
equipment as may be required in its discretion, and that NPI shall have no
obligation to provide such additional equipment after the date of this
Agreement. Any and all New OV Equipment shall be and remain the property of
On'Village (or any lessors of such equipment for the benefit of such lessors
and On'Village as provided in agreements between them), and NPI shall have no
interest therein. NPI agrees to execute such documents from time to time as
may be reasonably required to evidence On'Village's ownership and/or the
interests of On'Village's lessors or lenders related to the New OV Equipment,
and On'Village may place such markings on such equipment as it deems necessary
to evidence such interests.
(f) Pursuant to the Service Agreement of even date herewith NPI
agrees to setup and install the New OV Equipment at no charge.
6. Compensation to NPI. As compensation for its services to date
and for ongoing technological consultation, On'Village shall pay to
NPI one percent (1%) of On'Village's net advertising revenues derived
in the operation of the On'Village website. For purposes hereof, "net
advertising revenues" shall be determined in accordance with generally
accepted accounting principles as applied to On'Village by its
independent certified public accountants in preparing financial
statements for On'Village from time to time. Such compensation shall
be computed and paid quarterly by the 25th day of the month
immediately following each calendar quarter. "Net advertising
revenues" is defined as gross advertising revenues from the ON VILLAGE
Internet Yellow Pages project revenue sources less discounts and bad
debts, and includes revenue specifically for ON VILLAGE Internet
Yellow Pages project including revenues from Quickstart Ads (Basic
template "page behinds") and corresponding add on
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products, display ads, banner ads, text links, positioning of links
and, any products that ON VILLAGE adds in the future which are
specific to the ON VILLAGE Internet Yellow Pages. Excluded from "net
advertising revenues" are new revenue centers which ON VILLAGE
develops that are not specific to the ON VILLAGE Internet Yellow Pages
project. ON Village shall account to NPI quarterly for its "net
advertising revenue." NPI may upon 30 days written notice review the
books and records, for the purpose of verifying "net advertising
revenue" at NPI's expense.
7. Use of Compuserve Name. NPI has advised On'Village that it is
probable that it will terminate its affiliation with Compuserve in the near
future. In the event such affiliation is terminated, within sixty (60) days
after written notice of such termination given by NPI to On'Village, On'Village
agrees to cease any further use of the Compuserve name or or in connection with
its website and the conduct of On'Village's business related thereto.
8. General Provisions.
(a) Successors. This Agreement shall be binding upon and shall
inure to the benefit of the parties respective successors and assigns.
(b) Assignment. Neither party shall assign this Agreement
without the prior written consent of the other party, except that On'Village
may assign this Agreement in connection with the sale of all or substantially
all of its assets related to the website, subject to the assignee's agreement
to assume the obligations to NPI hereunder.
(c) Governing Law. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of California.
(d) Notices. All notices, approvals, consents, requests, demands
or other communication to be given to either party shall be in writing, by
certified mail, return receipt requested, or by other means where receipt is
acknowledged, and shall be effective on the date of receipt thereof. If
undeliverable, or if receipt is not acknowledged, such communication shall be
effective on the date mailed or sent. Such communication shall be addressed to
On'Village and NPI at their respective addresses set forth in the preamble
above, or at any other address that each party shall provide to the other in
writing.
(e) Waiver or Modification. No waiver or modification of any of
the terms or provisions of this Agreement shall be valid unless contained in a
single written document signed by both parties. No course of conduct or
dealing between the parties shall act as a waiver of any provision of this
Agreement.
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(f) Integration. This Agreement contains the entire
understanding of the parties, and there are no representations, warranties,
promises or undertakings other than those contained herein. This Agreement
supersedes and cancels all previous agreements between the parties hereto.
(g) Attorneys Fees. In the event any legal action becomes
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled, in addition to its court costs or arbitration fees, to
such reasonable attorneys' fees as shall be fixed by a court of competent
jurisdiction or by an arbitrator(s).
(h) The parties represent and warrant that they have made no
agreements that are inconsistent with this Agreement or that would prevent them
from entering into this Agreement. The parties further represent and warrant
that entering into this Agreement does not violate any agreements, rights or
obligations existing between them and any other entity.
IN WITNESS WHEREOF, the parties have executed this Agreement
by and through their respective duly authorized officers, as of the date first
above written.
ON'VILLAGE COMMUNICATIONS, INC.
By /s/ XXXX XXXXXX
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Typed Name: Xxxx Xxxxxx
Title: CEO
NETWORK PUBLISHING, INC.
By /s/ XXXXXXX XXX
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Typed Name: Xxxxxxx Xxx
Title: President
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