DEVELOPMENT/WORK-FOR-HIRE AGREEMENT
This DEVELOPMENT/WORK-FOR-HIRE AGREEMENT is entered into as of September 30, 2000, by and between Network Consultant , and Client (?Client?). Collectively, Network Consultant and Client are called the ?Parties? in this Agreement.
Recitals
A. Network Consultant is in the business of developing networks and other technology based solutions
B. Client is a firm and wishes to have Network Consultant develop for Client?s ownership and operation a network consisting of ___________
C. This Agreement sets forth the terms and conditions under which Network Consultant will undertake and Client will pay for the work described below.
Based on these recitals, the Parties agree as follows
1. Definitions.
For purposes of this Agreement, the following terms have the indicated meanings:
1.1 ?Correction? means the ?debugging? or elimination of programming errors or defects that for any reason cause the Program to fail to function in accordance with the specifications or introduce results that the typical user would believe are unintended and/or undesirable.
1.2 ?Deliverable? means the version of the Program, Documentation, Work Product, Specifications, and/or any other items to be
delivered by Network Consultant to Client by a specified date in accordance with the Milestone Delivery Schedule. The Deliverables are set forth in Exhibit A to this Agreement.
1.3 ?Documentation? means all instructions that are necessary or useful in order to assist Client in maintaining, modifying and improving the Program, including without limitation all written materials developed pursuant to the Statement of Work, such as linkage reports, the style guide (if any), all templates, specifications, programmers? notes, and technical documentation, and a listing of any Utilities required to implement or modify any of the functions of the Program.
1.4 ?Client Content? means the content of Client to be used online, as well as design structure, imagery, and any audio and audiovisual material, photographs, logos, trademarks, and other materials provided to Network Consultant by Client. Network Consultant will have no rights in any Client Content.
1.5 ?Intellectual Property Rights? means any and all rights, known now or later, associated with works of authorship or inventions throughout the universe, including but not limited to copyrights, patents, trademarks, and all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated) relating to intangible property.
1.6 ?Maintenance? means (a) making any and all corrections to the Program and to all related hardware and network connections
required to ensure that the Program will be available for use at all times required by this Agreement, (b) making refinements as deemed necessary by Client to improve user interaction, (c) training Client personnel in the operation, maintenance and alteration of the Program, and (d) assisting Client in recovering lost data and establishing a mutually agreed upon back-up data protection plan for Client.
1.7 ?Milestone? means any task to be completed by Network Consultant by a specified date in accordance with the Milestone Delivery Schedule. The Milestones are set forth in Exhibit A to this Agreement.
1.8 ?Milestone Delivery Schedule? means the description set forth in Exhibit A to this Agreement of the Milestones and Deliverables to be delivered and the dates by which each Milestone is to be completed and each Deliverable is to be delivered to Client.
1.9 ?Performance Specifications? means the detailed written description of the technical standards for the performance and data capacity of the Program, including without limitation, requirements for hardware, software, Internet connectivity and telecommunications requirements, error occurrences and error correction response times, as set forth in Exhibit D to this Agreement.
1.10 ?Revisions? means any changes or additions to the Program, including without limitation any changes or additions which give the Program features or capabilities not described in the Specifications.
1.11 ?Service Fee Schedule? means the schedule attached as Exhibit B to this Agreement of the fees payable to Network Consultant
for services rendered under this Agreement.
1.12 ?Specifications? means the detailed written description of the Program?s functional and aesthetic aspects including, without
limitation, the Program design, scripts (functions), computer program operating features, interfaces and technical requirements, as set forth in Exhibit D.
1.13 ?Source Code? means the computer programs in human-readable form, including programmers? comments, data files and structures, header and include files, macros, object libraries, programming tools not commercially available, technical specifications, flowcharts and logic diagrams, schematics, annotations and documentation reasonably required or necessary to enable an independent third party programmer with a reasonable level of programming skills to create, maintain, modify or enhance the Program without the help of any other person. Data files containing Source Code must be in standard ASCII format and be readable by a text editor.
1.14 ?Statement of Work? means the written description attached as Exhibit A to this Agreement of the work to be performed by
Network Consultant in the development of the Program.
1.15 ?Utilities? means all Source Code and object code for development tools or other technology embodied in or used in connection with the development of the Program, whether they are Program-specific in application or not, and are written, licensed or otherwise legally acquired by Network Consultant , either prior to or after the date of this Agreement.
1.16 ?Program? means the program to be developed for Client by Network Consultant under this Agreement and includes all and all portions of linked pages capable of running in a satisfactory manner on a computer system to be specified by Client, including without limitation, all HTML or other formatted text files, all related graphics files, data files, modules, routines and objects, and the computer software and all other script or program files required to exploit such materials and that collectively control the display of and user interaction with the Program and have the features and capabilities described in the Specifications, together with all of their Corrections, Revisions and Maintenance. Without limitation of the foregoing, ?Program? includes the complete Source Code for the Program and all portions thereof, all material created by Network Consultant or its permitted subcontractors hereunder and all related data or information required to enable Client to support, maintain and modify the Program.
1.17 ?Work Product? means any and all existing or to-be-developed parts, work-in-progress, components, elements, portions or aspects of the Program that are developed, created or contributed to by or on behalf of Network Consultant under this Agreement, and any and all other results or proceeds of the services of Network Consultant , and of all persons and entities rendering services, in connection with the Program from the inception of Network Consultant ?s and such persons? and entities? efforts with respect to those services, in each case including all physical embodiments of those services, whether or not incorporated in a Deliverable and including without limitation, object code, Source Code, the computer programming for the Program and Documentation, each Deliverable and each constituent portion and element of the foregoing.
2. Network DEVELOPMENT SERVICES
2.1 Development Services. The Program will be developed in accordance with Specifications to be identified by Network Consultant
and approved by Client. In accordance with the Milestone Delivery Schedule and the Statement of Work, Network Consultant will develop the Specifications, design and implement the interfaces and navigation (information design) for the Program, and develop, install and test the Program. Client will provide Network Consultant with design hierarchy, imagery and other Client Content as Client deems appropriate for incorporation into the Program. The Specifications and all other aspects of the Program will be developed by Network Consultant and are subject to approval by Client prior to implementation. The Program will include the Client Content, as well as original graphics and other material created by Network Consultant exclusively for the Program. Network Consultant will develop, produce, complete and deliver the Deliverables to Client, all in conformity with the Specifications, the Statement of Work, and Milestone Delivery Schedule. Network Consultant will provide or obtain, at its expense, all necessary programming and other production services and materials in order to implement the Specifications. Network Consultant will consult with Client throughout the development of the Program. Client will have the right, at Client?s expense, to send Client personnel to Network Consultant ?s place of business upon reasonable notice during normal business hours for consultation with respect to the Program?s development.
2.2 Program Deliverables. Notwithstanding anything to the contrary contained in the Milestone Delivery Schedule, Network Consultant will deliver to Client: (a) all HTML or other formatted text files, all related graphics files, data files, modules, routines, objects, computer software, all Utilities developed by Network Consultant and a list of Utilities approved by Client which are provided by third parties, and all other script or program files required to operate the Program, (b) the complete Source Code for the Program and all portions of the Source Code, and (c) all related data or information required to enable Client to support, maintain and modify the Program, including without limitation, Utilities and other programs enabling Client to generate detailed statistical reports on user access of the Program, self-authoring tools enabling Client to easily update the Program without third party assistance, and all programs and information required for Client to maintain and operate the Program to ensure access to the Program by all users at all times on a 24-hour per day, seven days per week basis. Deliverables will in all cases conform to the Specifications and/or any modifications to them in accordance with section 2.4 of this Agreement. Network Consultant agrees to develop the Documentation and to deliver the Documentation to Client for approval according to the Statement of Work and on the dates specified in the Milestone Delivery Schedule, but in no event later than November 1, 2001
2.3 Program Hardware and Software. Network Consultant will develop an appropriate system for the hardware and software architecture for the Program by in accordance with the Performance Specifications and Specifications (the ?System Architecture?). Network Consultant will obtain the computer hardware and operating system software necessary to operate the Program, in accordance with the System Architecture and the Performance Specifications and Specifications. Network Consultant will load the Program and all supporting data files and data structures onto the server computers so as to cause the Program to be fully functional and operational on the World Wide Web and using Client?s specified domain name. All HTML Source Code as well as CGI and other back-end programming, will be subject to prior Client approval. Network Consultant will verify HTML specification compliance of all Program files to be uploaded to the Program. Network Consultant will work with Client?s third party hosting Client to coordinate and support whatever is reasonably necessary to have the Program launched and properly operating and to educate the Web-hosting Client as to the System Architecture.
2.4 Change Requests. If Client desires to alter the Statement of Work or other work to be performed by Network Consultant in any significant way, the following procedures will apply:
(a) Client will forward to Network Consultant the change request (?Change Request?) which will include (i) a description of the proposed change, and (ii) the reason for the proposed change or other relevant background information.
(b) If the Change Request will not increase price of the project to Client or adversely affect the timetable for completion of the Program, Network Consultant will promptly undertake to effect the Change Request. If Network Consultant notifies Client in writing within three (3) days of the Change Request that it will adversely affect the price or timetable, the parties will meet and decide on the appropriate course of action.
2.5 Project Liaisons. Unless and until otherwise designated in writing by Network Consultant or Client, as the case may be, the project liaison for Network Consultant is Dave Prouhet and for Client is Pat Batson. All discussions involving the Statement of Work will be conducted by these persons, or their designees, and any agreement on the Specifications or Performance Specifications and any changes thereto will be documented in writing with these two people, or their designees, as joint signatories.
2.6 Firm Project Deadlines. Network Consultant agrees to develop the Program and deliver all Deliverables to Client for approval according to the Specifications and the Statement of Work and on the dates specified in the Milestone Delivery Schedule. Network Consultant will deliver to Client all of the items listed in the Milestone Delivery Schedule on the date so indicated. Time is of the essence with respect to such delivery.
2.7 Program Approvals. Network Consultant understands and agrees that Client will have final approval over all elements and content (including but not limited to all creative aspects thereof and all text, graphics, characters, banners and screens) of the Program, including without limitation the Specifications. All aspects of the development and operation of the Program will be subject to the requirements and final approval of Client, including the ?look and feel? of the Program, the use of the Client Content, all technical development, all hardware, software, and platform decisions, and any advertising, links or other elements of the Program. All uses of the Client Content are subject to the prior approval of Client, and must be consistent with the high standards of Client. Client has the final decision on whether to launch the Program once development is completed. Client may also modify, change or alter the Program in any respect at any time, whether before, at or after the Program goes online. To that end, Client will review from time to time Network Consultant ?s proposed implementation of the Specifications (including without limitation each Deliverable and any Work Product that is not otherwise delivered as a Deliverable) and have the right of final approval thereof, which approval may be granted or withheld in Client?s sole discretion. Network Consultant recognizes that Client will exercise its discretion hereunder in all instances to maintain Client?s high standards and good image and reputation. Promptly following receipt of each Deliverable, Client will provide Network Consultant with either: (a) approval (i.e., acceptance) of the Deliverable; or (b) changes that must be made before Client will approve such Deliverable and the date by which such changes must be received by Client. Failure by Client to provide any such approval will be deemed disapproval by Client. Client will endeavor to provide its approvals or disapprovals hereunder reasonably promptly.
3. PROGRAM MAINTENANCE SERVICES
3.1 Program Maintenance. For a period of 90 days following Final Acceptance (as defined in Section 8.1), Network Consultant will
provide 10 hours per month of Program support and maintenance services for the Program. Thereafter, such support and maintenance services will be provided at the rate of $95 per hour of support, with additional hours billed at the rate of $95 per hour, or Network Consultant ?s then-current rate, to its most favored customers, whichever is less. This Section 3.1 does not cover the matters set forth in Section 3.4.
3.2 Client Training. Upon request from Client, Network Consultant will train Client personnel in the development, maintenance and operation of the Program so that such personnel will be able to perform such activities without consultation by Network Consultant at no cost to Client, in amounts reasonably requested by Client.
3.3 Revisions and Updates. Network Consultant will not have any right to make any Revisions to the Program or to make any other use of the Program or any materials contained therein without Client?s prior consent. Client reserves the right to make (or have made by Network Consultant or any third party) any and all Revisions to the Program. At any time upon request, Network Consultant will make such Revisions to the Program as Client will request from time to time. Network Consultant will alter the Program as Client will direct, including removing material or adding new or additional material. Any new or additional material will be subject to the terms of this Agreement. Network Consultant will enable Client to alter or update the Program on its own, without the aid or involvement of Network Consultant or any third party, including without limitation, by providing Client at not charge with self-authoring (so-called ?back-end scripting?) tools.
3.4 Corrections. Notwithstanding Client?s approval of the Program and Documentation pursuant to Section 2.7 above, Network Consultant will make, at its own expense, whatever Corrections are necessary with respect to the Program. Network Consultant will promptly notify Client of any claimed or suspected defect in any aspect of the Program or any Deliverable. In the event Network Consultant fails to make such Corrections or does not make Corrections to Client?s satisfaction within the Correction Response Times set forth in Exhibit C, Client will have the right, in addition to Client?s rights under Section 3.7 below, but not the obligation, to make such Corrections itself or have a third party make such Corrections and the cost of making such Corrections (by Client or by a third party) will, at Client?s option, be deducted from payments otherwise due to Network Consultant hereunder or separately billed to Network Consultant . Network Consultant ?s obligation to make Corrections to the Program pursuant to this Section 3.4 will continue during the period of operation of the Program.
3.5 Updates and Enhancements. Network Consultant will promptly notify Client of any Updates and Enhancements (as defined in this Section) to the Utilities, self-authoring tools, back-end scripting or other programs which are developed by Network Consultant or licensed to Client pursuant to Section 5 below. For purposes of this Agreement, ?Updates? will mean any revisions, updates, ?bug? fixes and corrections of the Utilities or any part thereof, and ?Enhancements? will mean any further developments, extensions, improvements or modifications of the Utilities, or any part thereof. Network Consultant will provide all Updates free of charge during the term of this Agreement, and will make available all Enhancements at the same standard published rates as it charges its other customers.
3.6 Mirror Site. Network Consultant will maintain a mirrored development environment for offline (i.e., non-public access) development and testing of intended changes to the Program, to which they will provide Client continuous secure access. All changes to the Program will be made first in this environment, and tested thereon, before being mirrored out to the production server.
3.7 Compliance With Performance Specifications. In the event that, at any time following the Scheduled Launch Date, Network Consultant fails to maintain the Program in full compliance with the provisions of this Section 3, then Network Consultant will have a 24 hour grace period during which to restore the Program to full operation and compliance, provided that during such grace period Network Consultant will use its best efforts in such respect, including without limitation, compliance with the Correction Response Times set forth in Exhibit C.
4. FINANCIAL TERMS
Provided that Network Consultant is not in breach of this Agreement, upon proper submission of an invoice by Network Consultant , Client will make the payments to Network Consultant set forth in the Service Fee Schedule attached hereto as Exhibit B within thirty (30) days of the receipt of invoice. For each payment in the Service Fee Schedule to be made after Client?s acceptance of a Deliverable, Network Consultant will submit an invoice to Client after, and only after, Client has accepted in writing in accordance with Section 2.7 above, each of the Deliverables corresponding to the payment under the Service Fee Schedule. Unless otherwise agreed in writing in advance, Client will not reimburse Network Consultant for travel or other expenses. Network Consultant ?s service fees will be Network Consultant ?s sole remuneration in connection with its services hereunder. All payments due hereunder will be made in U.S. dollars by check or wire transfer.
5. PROPRIETARY RIGHTS
5.1 Ownership Rights to Program. Subject to Sections 5.2 and 5.3 below, Client will own all rights in and to the Program, the Work Product, Deliverables, Utilities and all results and proceeds of Network Consultant ?s services hereunder, including without limitation the name and URL associated therewith, and all Intellectual Property Rights therein and thereto. Network Consultant ?s services hereunder will be rendered on a work-made-for-hire basis, with Client being deemed the sole author of the Program, all Deliverables, Work Product and all related works of authorship under this Agreement, and Network Consultant hereby irrevocably transfers and assigns to Client all Intellectual Property Rights therein and thereto. Network Consultant will provide Client with reasonable assistance to further evidence and set of record Client?s Intellectual Property Rights, and Network Consultant will make no claim inconsistent with Client?s Intellectual Property Rights. All value and goodwill accruing in connection with the Program will inure to the sole benefit of Client. With respect to any so-called ?moral rights,? Network Consultant hereby unconditionally waives such rights and the enforcement thereof. Client will be entitled to full ownership of the original and all copies of all Work Product. Network Consultant acknowledges that Client may register the copyright for the Program (and each element thereof) and any Work Product or derivative work in its own name or that of any of its designees for the full term of copyright and all renewals and extensions thereof.
5.2 Third-Party License Rights. To the extent that the development, hosting or operation of the Program requires the use of any third-party intellectual property, Network Consultant will obtain the prior written consent of Client for the use of such third-party intellectual property, and Network Consultant will obtain at its own expense a perpetual, irrevocable, royalty-free, worldwide right and license to use such third-party intellectual property in the name of, and for the benefit of Client.
5.3 Network Consultant License Rights. To the extent any pre-existing intellectual property owned or licensed by Network Consultant is used in connection with development or maintenance of the Program (?Network Consultant Intellectual Property?) pursuant to Sections 2, 3.3, 3.4 or 3.5, Network Consultant will obtain the prior written consent of Client for such use and Network Consultant will grant and hereby grants Client a perpetual, irrevocable, royalty-free, worldwide right and license to use such Network Consultant intellectual property in connection with the Program. Subject to the foregoing, Network Consultant retains ownership rights to all of the Network Consultant Intellectual Property.
5.4 Customer Data. All customer lists, customer data and other information collected by Network Consultant in connection with the operation of the Program will be solely owned by Client.
5.5 Proprietary Notices. Client will provide Network Consultant with appropriate notices of copyright, trademark and other proprietary rights in Client?s name, and Network Consultant will place such notices in such a manner as Client will direct. In no event will Network Consultant alter, remove, obscure, erase or deface or otherwise hide from view, any copyright, trademark or other proprietary rights notice of Client contained on or incorporated in the Program. Client will have the right to develop and implement any method or mechanism Client deems appropriate to prevent or protect against unauthorized copying of the HTML code for the Program, the Program, or any materials on the Program.
5.6 Further Assurances. Network Consultant will, and will cause every party acting under it in relation to this Agreement to, execute any and all documents and do such other acts requested at any time by Client as may be required to evidence, perfect, confirm and/or further effect the rights granted Client under this Section 5. In the event Network Consultant fails to execute and deliver any such documents and instruments promptly upon request therefor by Client, Client is hereby authorized and appointed attorney-in-fact of and for Network Consultant to make, execute and deliver any and all such documents and instruments, it being understood that such power is coupled with an interest and is therefore irrevocable.
5.7 Client Goodwill. Network Consultant acknowledges that the rights and powers retained by or granted to Client under this Agreement are necessary to protect ?Allbusiness.com? Intellectual Property Rights of Client and, specifically, to conserve the goodwill and good name of its products and the name ?Allbusiness.com?, and therefore Network Consultant agrees that it will not, and it will not allow or assist any other party to, perform any act that would result in any of Client?s products or the name ?Allbusiness.com? to become involved in matters that will or could detract from, or impugn, their public acceptance and popularity, or impair their legal status. Network Consultant acknowledges and agrees that, as between Network Consultant and Client, all Client Content is owned by Client.
5.8 Litigation. Should Network Consultant become aware of any infringing use of the Program (or any element thereof), Network Consultant will notify Client and Client may, within its sole discretion, undertake to prosecute necessary actions to prevent such use or distribution. In the event Network Consultant is joined in any such litigation, the decisions of Client?s counsel with reference to matters of procedure, conduct of such litigation and/or the handling thereof, will prevail and Network Consultant will cooperate with and assist Client?s counsel. Any recovery will be the sole property of Client.
6. CONFIDENTIAL INFORMATION
6.1 Confidential Information. Network Consultant may, during the performance of its services under this Agreement, have access to and acquire knowledge from, material, data, systems and other information concerning the operation, business, financial affairs, products, customers and Intellectual Property Rights of Client that may not be accessible or known to the general public (referred to as ?Confidential Information?). ?Confidential Information? also includes (a) the terms of this Agreement and the fact of its existence and
(b) any information or materials that Client obtains from any third party that Client treats as proprietary or designates as Confidential Information, whether or not owned by Client. ?Confidential Information? does not include information that Network Consultant can document in reasonable detail and to Client?s reasonable satisfaction: (i) is known by Network Consultant at the time of receipt from Client and is not subject to any other non-disclosure agreement between the parties; (ii) is now, or hereafter becomes, generally known to the public through no fault of Network Consultant ; or (iii) is otherwise lawfully and independently developed by Network Consultant , or lawfully acquired from a third party without any obligation of confidentiality.
6.2 No Disclosure. Any Confidential Information acquired by Network Consultant will not be used, published or divulged by Network Consultant to any other person or entity in any manner whatsoever without the prior clear and express written approval of Client, which approval Client may withhold in its sole discretion. Network Consultant will not disclose any Confidential Information to any such person or entity until the same will have signed such a Confidentiality Agreement, and upon such signature will only disclose such of the Confidential Information as is reasonably necessary to permit performance of Network Consultant ?s obligations hereunder. Network Consultant will, and will cause its employees, agents and every other person and entity it employs in connection with its services under this Agreement to, protect and safeguard the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information as Network Consultant uses to protect its own confidential or proprietary information of a like nature. In the event that Network Consultant is directed to disclose any portion of any Confidential Information of Client or any other materials proprietary to Client in conjunction with a judicial proceeding or arbitration, Network Consultant will immediately notify Client both orally and in writing. Network Consultant agrees to provide Client with reasonable cooperation and assistance in obtaining a suitable protective order and in taking any other steps to preserve confidentiality. Upon any termination or expiration of this Agreement or upon the request of Client, Network Consultant will immediately return all Confidential Information to Client.
6.3 No Confidential Information of Other Parties. Network Consultant represents and warrants that it will not use in the course of its performance hereunder, and will not disclose to Client, any confidential information of any third party (including competitors of Client or Network Consultant ) unless Network Consultant is expressly authorized in writing by such third party to do so.
6.4 Program Confidential. Until the public launch of the Program, Network Consultant will not, and will have no right to, release, distribute or disclose to any third party the Program or any Work Product or any portion thereof or any of the materials provided by Client hereunder. Network Consultant will not provide advance access to the Program or any portion thereof to any person or entity without the prior written consent of Client, which consent may be granted or withheld by Client in its sole discretion. All so-called ?test pages? for the Program that Network Consultant may make available on the Internet for review by Client will be password protected.
6.5 Specific Performance. The parties specifically acknowledge and agree that the provisions of this Section 6 are reasonable and necessary for the protection of the Confidential Information and to prevent damage or loss to Client. Network Consultant understands and agrees that Client may suffer irreparable harm in the event that Network Consultant fails to comply with any of its obligations under this Section 6, and that monetary damages in such event would be substantial and inadequate to compensate Client. Consequently, Network Consultant agrees that in such event Client will be entitled, in addition to such monetary relief as may be recoverable by law, to such temporary, preliminary and/or permanent injunctive or other equitable relief as may be necessary to restrain any threatened, continuing or further breach by Network Consultant , without showing or proving any actual damages sustained by Client, without bond.
7. REPRESENTATIONS, WARRANTIES, INDEMNIFICATION AND INSURANCE
7.1 Network Consultant Representations and Warranties. Network Consultant represents and warrants that
(a) it has the right, power and authority to enter into this Agreement and to fully perform its obligations under this Agreement;
(b) the making of this Agreement by it does not violate any agreement existing between it and any other person or entity;
(c) it owns or has acquired all necessary license rights in and to all materials it contributes to the Program,
(d) it complies, and at all times will comply, with all applicable laws, rules and regulations in effect at the time services are
performed pursuant to this Agreement, including without limitation all professional registration requirements and technical specifications pertaining to any aspect of the Program.
(e) subject to the provisions of Sections 5.2 and 5.3 hereof, the Program and all Work Product therein that is not supplied by Client, as delivered by Network Consultant is original, has not been previously published in any form and is not in the public domain,
(f) the Program and all Work Product are delivered free and clear of any liens, charges, encumbrances or restrictions, including those of Network Consultant ?s suppliers,
(g) all HTML or other formatted text files, Source Code and object code as delivered by Network Consultant is complete and accurate;
(h) all Source Code is and will be fully narrated with logic diagrams and flow charts and is human readable and can be translated by a computer or assembler for execution;
(i) The Program and all Work Product, including without limitation, any images or graphics contained therein which is not supplied by Client do not violate or infringe any right of privacy or publicity or any other Intellectual Property Right, or contain any libelous, defamatory, obscene or unlawful material, or otherwise violate or infringe any other right of any person or entity, and that Network Consultant will not exercise any of the rights granted to it under or pursuant to this Agreement in a manner that will violate any applicable law, rule or regulation;
(j) The Program, as delivered by Network Consultant , will be free of any computer virus or any other similar harmful, malicious or hidden program or data and will operate in accordance with the Specifications. Without limitation of the foregoing, Network Consultant warrants that the Program, as delivered by Network Consultant will be free of any hardware or software device or code which will prevent Client from accessing or using the Program or any portion thereof.
(k) All of the services provided by Network Consultant or a permitted subcontractor thereof will be rendered very sound, professional practices and in a competent and professional matter by knowledgeable, trained and qualified personnel; and
(l) The Program will be developed and will operate in conformance with the terms and conditions of this Agreement.
7.2 Network Consultant Indemnification. Network Consultant agrees to, and will, indemnify, defend and hold harmless Client and its directors, shareholders, officers, agents, employees, successors and assigns from and against any and all claims, demands, suits, actions, judgments, damages, costs, losses, expenses (including attorneys? fees and expenses) and other liabilities arising from, in connection with or related in any way to, directly or indirectly, (a) its performance of this Agreement, (b) any breach or alleged breach of any of the representations, warranties, undertakings or agreements made by it under this Agreement, (c) its activities under this Agreement, including without limitation, any unauthorized use by it or any of its subcontractors of any portion of the Client Content or the Program, or (d) any act or omission of it, its directors, officers, agents, employees or subcontractors. Client will promptly notify Network Consultant of any such claim. Network Consultant will bear full responsibility for the defense (including any settlements); provided however, that (i) Network Consultant will keep Client informed of, and consult with Client in connection with the progress of such litigation or settlement; and (ii) Network Consultant will not have any right, without Client?s written consent, to settle any such claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Client.
7.3 Client General Representations and Warranties. Client represents and warrants that (a) it has the right, power and authority to enter into this Agreement and to fully perform its obligations under this Agreement; (b) the making of this Agreement by it does not violate any agreement existing between it and any other person or entity; and (c) it has all necessary rights in and to the Client Content and any other materials it contributes to the Program. Client further represents and warrants that such materials contributed by Client do not violate or infringe any Intellectual Property Rights of any other person or entity.
7.4 Client Indemnification. Client agrees to, and will, indemnify, defend and hold harmless Network Consultant , and its directors, shareholders, officers, agents, employees, successors and assigns from and any and all claims, demands, suits, actions, judgments, damages, costs, losses, expenses (including attorneys? fees and expenses) and other liabilities arising from, in connection with or related in any way to, indirectly or indirectly, a breach or alleged breach of the representations and warranties set forth in Section 7.6 hereof. Network Consultant will promptly notify Client of any such claim, and Client will bear full responsibility for the defense of such claim (including any settlements).
7.5 Attorneys. Notwithstanding any of the foregoing, Client will have the right, in its absolute discretion, to employ attorneys of its own choice and to institute or defend any matter, claim, action or proceeding and to take any other appropriate steps to protect all rights and interest in and title to the Program and every element thereof and, in that connection, to settle, compromise in good faith, or in any other manner dispose of any matter, claim action, or proceeding and to satisfy any judgment that may be rendered, in any manner as Client in its sole discretion may determine.
8. TERM AND TERMINATION
8.1 Term. The term of this Agreement will commence as of the Effective Date and will continue until all obligations hereunder have been performed, unless terminated sooner in accordance with this Agreement.
8.2 Termination for Default. Either party will have the right to terminate this Agreement for material breach of a material obligation that is not cured within thirty (30) days after written notice of such breach. For purposes of this Agreement, any act or failure to act by any third party contractor of Network Consultant or any employee of Network Consultant or such third party contractor will be deemed an act or failure to act by Network Consultant .
8.3 Termination for Insolvency. Client will have the right to terminate this Agreement upon written notice to Network Consultant in the event that Network Consultant makes any assignment for the benefit of creditors or files a petition in bankruptcy or is adjudged bankrupt or becomes insolvent or is placed in the hands of a receiver or if the equivalent of any of the proceedings or acts referred to in this clause, though known and/or designated by some other name or term will occur.
8.4 Termination for Convenience. Client will have the right to terminate this Agreement for convenience upon fifteen (15) days? advance written notice to Network Consultant . In the event of termination for convenience of this Agreement, in whole or in part, Client?s sole liability to Network Consultant will be payment of invoices for services rendered prior to the termination date.
8.5 Effect of Termination. Upon expiration or termination, in whole or in part, of this Agreement, or at any time upon the request of Client, Network Consultant will immediately deliver to Client all inventory, customer data, intellectual property, Source Code and object code of software, materials and other elements of the Program necessary for Client or a provider selected by Client to continue the uninterrupted operation of the Program. In addition, Network Consultant will provide Client with reasonable assistance in transitioning the Program in-house or to an alternate provider of services on a times and materials basis at the hourly rates identified in Exhibit . Upon termination Network Consultant will cease any use of the Client Content or any trademarks or trade names of Client, including without limitation, the Program name.
8.6 Survival of Terms. Sections 5, 6, 7, 8.5, 8.6, 9 and 10 will survive the expiration or termination of this Agreement for any reason. In no event will Network Consultant have any right to recover or obtain any Intellectual Property Rights in or to the Program or any Work Product, or enjoin or otherwise interfere with Client?s development, provision or other exploitation of the Program (or any element thereof), or any Work Product. No breach of this Agreement by Client will entitle Network Consultant to terminate or rescind this Agreement or to injunctive or other equitable relief, it being agreed that Network Consultant ?s sole remedy, if any, in the event of such a breach will be an action for damages.
9. INDEPENDENT CONTRACTOR; NO AGENCY
9.1 Independent Contractor. Network Consultant is, and will remain, an independent contractor with respect to services performed pursuant to this Agreement. The parties are independent contractors and no agency, partnership, franchise or other relationship is created hereby. Nothing contained herein will be construed to constitute the parties as principal and agent, employer and employee, partners or joint venturers, nor will any similar relationship be deemed to exist between the parties. Neither party will have any power to obligate or bind the other party, except as specifically provided.
9.2 Personnel. Personnel supplied by Network Consultant will work exclusively for Network Consultant and will not, for any purpose, be considered employees or agents of Client. Network Consultant assumes full responsibility for the actions of such personnel while performing services pursuant to this Agreement and will be solely responsible for and will indemnify Client and hold it harmless from their supervision, daily direction and control (including without limitation Network Consultant ?s and such personnel?s compliance with all applicable laws, regulations and ordinances), compensation, benefits (including without limitation any pension or welfare plans and workers? compensation program) and taxes (including without limitation all withholding taxes, payroll taxes, disability insurance payments, unemployment taxes, and other similar taxes, assessments, contributions and charges on the payments made or required to be made by Network Consultant to such personnel). Network Consultant will file all returns and reports that may be required by any governmental or professional agency with respect to any of the foregoing. Network Consultant will ensure that all employees or consultants working for Network Consultant in connection with this Agreement will have executed appropriate Confidentiality and Invention Assignment Agreements such that all work product developed by such parties will be deemed owned by Client pursuant to Section 5.1 hereto.
9.3 Injuries. Client will have no obligation whatsoever to compensate Network Consultant on account of any damages or injuries which Network Consultant or any person or entity engaged by Network Consultant may sustain as a result or in the course of the performance of Network Consultant ?s or such employee?s services under this Agreement. Network Consultant will indemnify and hold Client harmless from and against any claims, losses, or liabilities arising out of the development or operation of the Program except to the extent such relate to the Client Content.
9.4 Independent Contractors. Network Consultant will directly render all services to be performed by Network Consultant under this Agreement exclusively through its employees and independent contractors under its control. Client will have the right, in its sole discretion, to approve any third party from whom Network Consultant obtains services or rights which pertain to the Program and any Work Product and Client will have the right to approve the form of contract entered into between Network Consultant and any such third party to ensure assignment of rights consistent with Client?s rights pursuant to Section 5 above.
10. GENERAL PROVISIONS
10.1 Notices. All notices which either party is required or may desire to serve upon any other party will be in writing and addressed to the party to be served as follows:
(a) if to Client:
.
Attn:
With a copy to:
.
Attn:
(b) if to Network Consultant :
.
Attn:
Any such notice may be served personally or by certified mail (postage prepaid), internationally commercially recognized overnight delivery service (such as Federal Express or DHL), courier or other written communication. Notice will be deemed served upon personal delivery or upon the second business day after the date sent. Either party may change the address to which notices are to be delivered by written notice to the other party served as provided in this Section 10.1.
10.2 Entire Agreement. This Agreement, together with the Exhibits attached hereto, constitutes the entire understanding and agreement between Client and Network Consultant with respect to the transactions contemplated, and supersedes any and all prior or contemporaneous oral or written representation, understanding, agreement or communication between Client and Network Consultant concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth.
10.3 Amendments. All amendments or modifications of this Agreement will be binding upon the parties despite any lack of consideration so long as the same will be in writing and executed by each of the parties hereto. It is expressly understood and agreed that no usage of trade or other regular practice or method of dealing between the parties hereto will be used to modify, interpret, supplement or alter in any manner the express terms of this Agreement or any part hereof.
10.4 Waiver. No waiver of any provision of this Agreement or any rights or obligations of either party hereunder will be effective, except pursuant to a written instrument signed by the party waiving compliance, and any such waiver will be effective only in the specific instance and for the specific purpose stated in such writing.
10.5 Construction. This Agreement has been negotiated by the parties hereto and by their respective counsel. This Agreement will be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party.
10.6 Headings. The section and paragraph headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, govern, limit, modify or construe the scope or extent of the provisions of this Agreement to which they may relate. Such headings are not part of this Agreement and will not be given any legal effect.
10.7 Severability. In the event that any provision of this Agreement should be found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
10.8 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.
10.9 Publicity. Network Consultant may not make any disclosure or announcement relating to this Agreement without the prior written consent of Client. Network Consultant may not use Client?s name for any endorsement or other usage without the prior consent of Client. Provided that this Agreement has not been terminated by Client pursuant to Section 8.2 above due to breach or default by Network Consultant , Network Consultant may reference the services rendered under this Agreement when asked for references from other potential customers.
10.10 Assignment. The services rendered by Network Consultant are personal in nature and Network Consultant may not assign its obligations or this Agreement without the prior written consent of Client, including any assignment by operation of law or pursuant to any change of ownership control of Network Consultant . All subcontractors will be subject to the prior approval of Client. Subject to the foregoing, this Agreement will inure to the benefit of the parties and their successors and permitted assigns.
10.11 Governing Law. This Agreement will be governed by the laws of the State of Illinois without reference to conflict of law principles. All disputes arising out of or relating to this Agreement will be subject to the exclusive jurisdiction and venue of the state courts sitting in Columbia, Illinois, and the federal courts and each party irrevocably consents to such exclusive jurisdiction and venue and waives any objection thereto.
IN WITNESS WHEREOF, the duly authorized representatives of each of the parties hereto have executed this Agreement as of the day and year first written above.
Client Network Consultant
By: By:
Name: Name:
Title: Title:
EXHIBIT A
STATEMENT OF WORK
Milestones/Deliverable Milestone Delivery Schedule
Alpha Version
(design & core functionality)
Beta Version
(full functionality subject to errors)
Final Version
(full functionality & errors corrected)
Launch Version/Scheduled Launch Date
(full functionality & errors corrected)
Final Documentation
EXHIBIT B
SERVICE FEE SCHEDULE
[Specify fees and cap on fees]
EXHIBIT C
PROGRAM PERFORMANCE SPECIFICATIONS
Error Occurrences/Correction Response Times
Level 1 Bugs (errors which significantly impair the core functionality of the Program or cause other gross problems) will be fixed by Network Consultant within 24 hours of discovery by Network Consultant , or verbal/email notification by Client or anyone else.
Level 2 Bugs (errors which detract significantly from the Program?s appearance, navigation, layout, but which do not impede core functionality) will be fixed by Network Consultant within 12 hours of discovery by Network Consultant , or verbal/email notification by Client or anyone else.
Level 3 Bugs (minor errors, misspellings, etc) will be fixed by Network Consultant within 24 hours of discovery by Network Consultant , or verbal/email notification by Client or anyone else.
Performance Requirement
The following performance requirement is based on our estimate of peak traffic situation. The average numbers are much smaller for the most part. However, the system must be able to handle routine peak traffic. When necessary, the system must also be readily upgraded to handle spike of traffic due to heavy marketing campaign or special events.
Measurement criteria Performance requirement Note
Connections per second This assumes HTTP 1.0
Concurrent session per second This is the logical sessions created for unique users. Sessions are created in the database. Note that not all sessions generate connection at every second as it takes time for the user to browse through the contents
# of sessions per hour This number smoothes out spurts of peak traffic during the peak hour.
Pages viewed per second This includes all elements of the page
Bits per second transferred
Median response time Note: this is not the same as average. This is measured from the web server, not from browser, because the delay at the browser is highly dependent on the user connection. The number can be obtained from analyzing the log files of web servers.
Max response time Same as the note on median response time, except that this must also apply during the peak period.
EXHIBIT D
SPECIFICATIONS