WEB DEVELOPMENT AND SERVICES AGREEMENT
THIS AGREEMENT (the “Agreement”) made as of ______________, _____ (the “Effective Date”) by and between Big Entertainment Company, Inc., with offices at _______, (“Customer”) and Developer, Inc., with offices at _________________________ (“Developer”).
WHEREAS, Customer desires to establish a branded Web site on the World Wide Web portion of the Internet to promote products and materials proprietary to Customer;
WHEREAS, Developer is in the business of providing software and computer consulting services in connection with creating and operating Web sites on the World Wide Web and desires to design, develop, implement, operate, maintain and update a Web site for Customer subject to the terms and conditions set forth in this Agreement; and
WHEREAS, Customer wishes to retain Developer to design, develop, implement, operate, maintain and update a Web site for Customer subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, Customer and Developer (each a “Party”, and collectively, the “Parties”) hereby agree as follows:
1. Services
1.1. Scope of Services
Subject to the terms and conditions of this Agreement, Developer shall, at no cost to Customer other than as expressly provided herein, timely perform the services and deliver the materials set forth or described in this Agreement and on the applicable Exhibits annexed hereto, and/or as otherwise subsequently agreed to in writing by the parties (collectively, the “Services”), in order to design, develop, implement, operate, maintain and update a Customer-branded Web site on the Internet (the “Customer Site”) and in order to sell advertising thereon, all in accordance with the Specifications (as hereinafter defined). Developer acknowledges and agrees that the Customer Site is to be a stand-alone Web site which shall not be a subset or subdomain of any other Web site, and as such, the Customer Site will be accessible by users of the Internet solely and directly through a URL designated by Customer.
1.2. Specifications
Developer shall prepare and deliver to Customer specifications for the Customer Site which shall detail the design, technical and functional capabilities, look and feel, and other attributes of the Customer Site (the “Specifications”). The Specifications shall include, without limitation: (i) Developer’s proposal to Customer, as applicable; (ii) a design for the Customer Site in accordance with the Guidelines as set forth in Schedule A hereto; (iii) attributes of performance which the Customer Site will achieve; (iv) deliverables to be provided by Developer as part of the Services, including, without limitation, the Customer Site (the “Deliverables”); and (v) design, development, testing, delivery, implementation, maintenance and update schedules for the Customer Site and any Deliverables (the “Delivery Schedule”). Developer represents and warrants that the Services, the Deliverables and the Customer Site shall conform in all material respects to the Specifications.
1.3. Conversion of Content
As part of the Services, Developer shall convert, input, digitize or otherwise format as necessary all content to be included in the Customer Site pursuant to the Specifications (collectively, the “Content”).
2. Advertising And Promotion
2.1 Advertising Sales
Customer shall have the right, in its sole discretion, to sell advertising, directly and via its licensees and other promotional partners, to appear on the Customer Site, without consulting with Developer. Customer shall have the right to retain all revenues and fees arising from or in connection with such advertising sold by Customer, its licensees and promotional partners.
2.2 Strategies and Opportunities
Developer shall consult with Customer on a periodic basis regarding strategies and opportunities for selling advertising on the Customer Site. Developer shall not approach any potential advertisers without the prior written consent of Customer, which consent shall not be unreasonably withheld or delayed. All final decisions concerning such strategies, opportunities and potential advertisers shall remain within Customers sole reasonable discretion.
2.3 Advertisements
All advertising on the Customer Site shall be consistent with the Customer Site Guidelines (as hereinafter defined). Developer shall consult with Customer concerning each proposed advertisement, and Customer must receive Customer’s written approval prior to selling or integrating any advertisement into the Customer Site.
2.4 URL Registration
Developer shall submit and register the Customer Site URL with Internet search engines, directories, catalog services, indexes and other Internet search services which are approved in advance in writing by Customer. Customer reserves the right to review and approve the entries describing the Customer Site which Developer plans to submit.
2.5 Promotion
Customer will use commercially reasonable efforts to promote the Customer Site by including a visual reference to the URL for the Customer Site in event-specific advertising. Promotion of the URL for the Customer Site may be conducted only under the exclusive control of Customer.
2.6 Non-disclosure
Developer agrees that it shall not, without the prior written consent of Customer, disclose, distribute or release to any third party, in any manner or medium, directly or indirectly or through its representatives: (i) the Customer Site, or any advertising, publicity or promotion materials (including without limitation, distribution through the Internet) related to the Customer Site or which include the name of Customer or its affiliates or subsidiaries or any trademark, trade name, or any abbreviation, contraction, or other embodiment thereof; and (ii) any materials or properties owned, controlled, licensed or otherwise proprietary to Customer, whether or not such materials are incorporated into the Customer Site, prior to the “public” release of such materials.
3. Delivery And Acceptance
3.1 Delivery of Specifications
Developer shall deliver to Customer the Specifications no later than ____________________. If Developer fails to timely deliver the Specifications, Customer shall have the right to terminate this Agreement without further obligation to Developer. Upon Customer’s acceptance in writing of the Specifications, the Specifications shall be annexed hereto as Exhibit 1.
3.2 Acceptance
Within ___________ days after receipt of each Deliverable and the Customer Site, or as soon as practicable thereafter, Customer will test and evaluate Developer’s submission (the “Customer Acceptance Test”). The Customer Acceptance Test shall be developed by Customer and shall demonstrate to Customer’s sole satisfaction that each Deliverable (including, when applicable, the Customer Site) conforms to the Specifications and appears and functions in accordance with Customer’s requirements (collectively, with the Specifications, the “Customer Requirements”). In the event that the Deliverable meets Customer’s Requirements, Customer shall notify Developer in writing that such Deliverable has passed the Customer Acceptance Test (“Customer Acceptance”). In the event a Deliverable fails to pass the Customer Acceptance Test, Customer will advise Developer in writing as to which aspects of the Deliverable failed. Developer shall, at no cost to Customer, remedy such failure and deliver the corrected Deliverable to Customer for review within _____ days following receipt by Developer of notice of the failure.
3.3 Time of the Essence
Developer shall perform the Services, and shall otherwise design, develop, test, deliver, implement, operate, maintain and update the Customer Site and any Deliverables, in strict compliance with the Customer Site Guidelines (as hereinafter defined), the Delivery Schedule and any milestones contained therein. Time is of the essence with respect to all aspects of this Agreement and the subject matter hereof.
4. Continuing Services
4.1 Transfer of Customer Site
Upon Customer Acceptance of the Customer Site, Developer shall transfer and implement the Customer Site and any corresponding Deliverables to and on the host Internet server and supporting environment at the location specified in writing by Customer (collectively, the “Host Server”) in conformance with the Delivery Schedule. The Customer Site will be hosted on the Host Server or as otherwise specified by Customer (the “Hosting Service Provider”). Developer shall work in conjunction with the Hosting Service Provider in connection with the transfer of the Customer Site to the Host Server, provided that Developer shall have ultimate responsibility for effecting the transfer of the Site to the Host Server. Developer shall promptly inform Customer of any known failure by the Hosting Service Provider to assist Developer in effecting such transfer.
4.2 Operation Of The Customer Site
Developer represents and warrants that all Services shall be performed so that the Customer Site and any Deliverables, when operated on the Host Server by the Hosting Service Provider, will function and perform in accordance with the Specifications. Developer shall, at no cost to Customer or the Hosting Service Provider, promptly provide any updates, revisions, and replacements necessary for the Customer Site to function and perform in accordance with the Specifications when operated on the Host Server by the Hosting Service Provider. Customer reserves the right to designate an alternative Host Server and Hosting Service Provider, and such designation shall not relieve Developer of its obligations under this Section 4.2. At no cost to Customer, Developer shall fully cooperate with Customer and the Hosting Service Provider in providing the Services under this Agreement, including, but not limited to, implementing the Customer Site on the Host Server and identifying and correcting any errors in the Customer Site.
4.3 Updates To The Customer Site
Following implementation of the Customer Site, Developer shall perform weekly updates to the Customer Site and any other updates reasonably requested by Customer. All such updates shall become part of the Customer Site and shall be governed by the terms and conditions of this Agreement.
4.4 Usage Information
Developer shall manage the recordation of and provide to Customer monthly: (i) all information reflecting access and usage of the Customer Site, including without limitation, audited and unaudited hits, visits, click-throughs and impressions; (ii) all available information about users of the Customer Site consistent with the Customer Site Guidelines (as hereinafter defined); and (iii) information directly or indirectly obtained from users accessing the Customer Site consistent with the Customer Site Guidelines (as hereinafter defined) (collectively “Usage Information”). Developer shall adhere to all privacy and data protection laws applicable to the gathering, processing, storing and transmitting of Usage Information. Developer shall maintain the strict confidentiality of all Usage Information.
4.5 Contact Person
Developer and Customer shall each designate a principal contact person who shall act as a liaison between Developer and Customer and who shall have sufficient authority to grant or communicate the granting of all necessary approvals. Developer shall, upon request by Customer, remove any Developer employee or agent from the Developer team rendering the Services, and replace same with alternative qualified Developer personnel.
4.6 Current Technology
Developer represents and warrants that during the Initial Term and any Renewal Period (as those terms are hereinafter defined) Developer shall continually use and integrate the most current and up-to-date technology commercially available into the Customer Site and any Deliverables, subject to the prior written approval of Customer.
4.7 Updates Of Customer Site
As part of the Services provided by Developer hereunder, and at no cost to Customer, Developer shall continually add materials and subsections to the Customer Site promptly after receiving request(s) therefor from Customer, in conformance with the Specifications and the Customer Site Guidelines (as hereinafter defined), which the Parties may amend from time to time by executing signed writings and annexing them to the appropriate Exhibit(s) to this Agreement.
5. Computer Software Deliverables
5.1 Software License
Developer hereby grants to Customer, its affiliates and subsidiaries, a worldwide, royalty-free, non-exclusive, enterprise-wide license, during the Initial Term of this Agreement and any Renewal Period (as those terms are hereinafter defined) to possess and use all computer software and development tools contained in, comprising, or otherwise necessary to display and/or maintain the Customer Site, in object code, source code, and other applicable forms (collectively, without regard to software owned by third parties, the “Software”), in order to make the Customer Site available to users of the Internet twenty-four (24) hours per day, seven (7) days per week.
5.2 Third Party Licenses
To the extent that any licenses are required to be obtained from third parties for use of software necessary to operate or maintain the Customer Site, Developer shall obtain, at Developer’s sole cost, such third party licenses for Customer’s benefit following Customer’s approval in writing of any associated third-party fees. Upon request by Customer, Developer promptly shall supply copies of all such license agreements to Customer.
5.3 Third Party Software For Commercial Transactions
In the event that Customer requests and authorizes Developer to develop and implement the capability to effect commercial transactions directly over the Customer Site, Developer shall promptly develop and implement such capability at no cost to Customer. Notwithstanding the foregoing, Customer shall reimburse Developer for any third party software which is pre-approved in writing by Customer as necessary for the development and implementation of such capability.
6. Fees And Payment; Other Consideration
6.1 Fees To Be Paid By Developer
In consideration of Customer entering into this Agreement, Developer shall pay to Customer the following: (i) an initial payment of ________________________ dollars ($________) upon Customer’s execution of this Agreement (the “Initial Payment”); (ii) __________________________ dollars ($________) upon the Launch Date of the Customer Site (the “Second Payment”); and (iii) ______ percent of all Advertising Revenues (as hereinafter defined). In the event Customer rejects the Specifications, and if mutual agreement cannot be reach on modifications thereto within ________ (___) days after the Effective Date, Customer shall refund the Initial Payment and this Agreement shall automatically terminate.
6.1.1 Advertising Revenues
The term “Advertising Revenues” shall mean all advertising or other revenues arising from, or in connection with, the Customer Site which are invoiced or received by Developer or any of its parent, subsidiary or affiliate companies, and/or agents, net of all Operating Expenses (as hereinafter defined).
6.1.2 Operating Expenses
The term “Operating Expenses” shall mean all direct out-of-pocket expenses for personnel working exclusively on the Customer Site and for acquiring materials for the Customer Site actually incurred by Developer in connection with Developer’s performance of the Services, but excluding all other costs and expenses, such as, by way of example only, Developer overhead, interest expenses, insurance premiums, bad debt and taxes.
6.2 Fees To Be Paid By Customer
Customer presently does not intend to authorize commercial transactions on the Customer Site. However, if Customer ultimately authorizes such commercial transactions, then, in consideration of Developer performing the portion of the Services described in paragraph 5.4 hereof, Customer will reimburse Developer for preapproved costs of acquiring third-party software, if any, required to implement such transactions on the Customer Site, and will pay Developer ____________ of all Net Commercial Revenues, if any (as hereinafter defined).
6.2.1 Net Commercial Revenues
The term “Net Commercial Revenues” shall mean all revenues received by Customer from the sale of Customer products directly through commercial transactions over the Customer Site, but excluding: (i) revenues received by Customer from the sale of goods or products sold or distributed through any and all means other than directly through the Customer Site; (ii) goods or products sold for scrap or sold for less than Customer’s cost; (iii) goods or products distributed for promotional purposes, or furnished free to the trade, press, or for public relations use; and (iv) goods or products furnished free to distributors, sub-distributors, dealers or others, net of all Commercial Expenses (as hereinafter defined).
6.2.2 Commercial Expenses
The term “Commercial Expenses” shall mean all applicable discounts, returns and credits in the ordinary course of business; sales, use or similar taxes; costs of goods and fulfillment (excluding Customer overhead); shipping costs; and expenses, if any, reimbursed to Developer.
6.3 Payment
______ times per year, promptly after the last day of each calendar quarter: (i) Developer shall compute Advertising Revenues; and (ii) Customer shall compute any Net Commercial Revenues. Within ______ (___) days after the last day of each calendar quarter: (i) Developer shall send Customer a detailed accounting of such Advertising Revenues and Operating Expenses together with payment for the amount of Advertising Revenues then due; and (ii) Customer shall send Developer a detailed accounting of Net Commercial Revenues and Commercial Expenses together with payment for the amount of Net Commercial Revenues then due.
6.4 Ancillary Rights
Developer shall have no right to any royalties, revenues, fees or other payments in connection with, or as a result of, the Services or the Customer Site, or with respect to products or services promoted on or by the Customer Site, except as expressly provided in this Article 6. Nor shall Developer have any rights of attribution in connection with the Customer Site, which shall contain appropriate Customer proprietary rights notices, as directed by Customer. Notwithstanding the immediately preceding sentence, Developer shall have the right to place a Customer-approved logo on a credits page for the Customer Site, which logo may reference Developer’s creation and operation of the Customer Site and which may include a link to Developer’s own Web site, subject to the Customer Site Guidelines (as hereinafter defined).
7. Auditing Rights
7.1 Books and Records
During the Initial Term of this Agreement and any Renewal Period (as those terms are hereinafter defined) and for a period of ____ (__) years after the expiration or termination of this Agreement, the Parties shall maintain books and records as follows:
7.1.1 Customer
Customer shall maintain books and records reasonably documenting: (i) Net Commercial Revenues, if any; and (ii) all Commercial Expenses.
7.1.2 Developer
Developer shall maintain such books and records reasonably documenting: (i) all Advertising Revenues; (ii) all hours spent in rendering the Services; and (iii) all Operating Expenses.
7.2 Inspection
For the sole purpose of verifying (i) Net Commercial Revenues payable to Developer hereunder; or (ii) Advertising Revenues payable to Customer hereunder: upon written notice to the non-auditing Party, the auditing Party or its authorized representative shall have the right upon ____ (___) days written notice to the non-auditing Party, but not more than ____ (__) time per calendar quarter, to conduct a reasonable inspection of the books and records of the non-auditing Party described in Section 7.1 hereof. Such inspection shall be conducted on the audited Party’s premises, during normal business hours and pursuant to mutually agreed upon confidentiality restrictions, in such a manner as to minimize disruption to the audited Party. The cost and expense of such audit shall be paid by the auditing Party unless the audit reveals an underpayment to the auditing Party in excess of ______________ of amounts due to the auditing Party, in which case the audited Party shall pay the costs of such audit.
8. Customer Site Guidelines
8.1 Guidelines
In addition to any requirements set forth or described in the Specifications, Developer and the Customer Site shall strictly adhere to the guidelines set forth in this Article 8 (collectively, the “Customer Site Guidelines”).
8.2 Artistic Control
Customer shall have exclusive artistic and editorial control over the Customer Site, including without limitation, integration of all Content, and the Design and look and feel of the Customer Site. Developer shall not publish, or otherwise display the Customer Site or any portion thereof without the prior written approval of Customer.
8.3 Purpose
The Customer Site and any Deliverables shall be designed to attract repeat user visits and promote the most current Content, assets and properties identified by Customer.
8.4 Limitations
The Customer Site shall not, without the prior written consent of Customer, contain: (i) software that is downloadable by users (other than HTML and other software used to format and display HTML documents or World Wide Web Pages, and elements embedded therein, such as sounds, images, and audiovisual clips, which elements Customer acknowledges will be downloadable by users); (ii) HTTP links to other Web sites (except to Developer’s corporate Web site for purposes of promoting its development and maintenance of the Customer Site); (iii) materials received and/or licensed from third parties; or (iv) the capability to sell products directly through the Customer Site.
9. Proprietary Rights
9.1 Ownership Of Content and Site
All rights, title and interest in and to the Content (as provided by Customer and as digitized or otherwise reformatted by Developer for the Customer Site, in all media now known or hereafter developed), the Specifications, the Usage Information, Confidential Information (as hereinafter defined), the Deliverables, the Customer Site and any trademarks, trade names, logos, characters and other materials provide by Customer, and the look and feel of the Customer Site, including, without limitation, all copyrights, trademarks, trade names and other proprietary rights inherent therein or appurtenant thereto (collectively, the “Customer Materials”) are owned and retained exclusively by Customer.
9.2 Use of Customer Materials
Developer shall not use the Customer Materials or any portion thereof for any purpose other than that of fulfilling Developer’s obligations under this Agreement. The Customer Materials and any portion thereof may not be used, disclosed, transmitted, transferred, sold, assigned, leased or otherwise disposed of, or made available for access by third parties, or be commercially exploited by or on behalf of Developer, its employees or agents, except as expressly provided in this Agreement.
9.3 Developer Materials
Subject to Customer’s ownership of all rights, title and interest in and to the Customer Materials, all techniques, algorithms and methods not in the public domain or licensed by Developer from any third party and rights thereto owned by Developer as of the Effective Date of this Agreement are and shall remain the property of Developer (collectively, the “Developer Materials”).
9.4 Work Made For Hire
Except for the Developer Materials, all materials, products, and modifications developed or prepared for Customer by Developer under this Agreement, including without limitation, the Customer Materials are and shall remain the property of Customer, and all rights, title and interest therein shall vest in Customer and shall be deemed to be a “work made for hire” and made in the course of the Services rendered hereunder. To the extent that title to the Customer Materials does not, by operation of law, vest in Customer or the Customer Materials are not considered works made for hire, all right, title and interest therein are hereby irrevocably assigned to Customer. All such materials shall belong exclusively to Customer with Customer having the right to obtain and to hold in its own name copyrights, registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof. Developer agrees to give Customer and any person designated by Customer any reasonable assistance required to perfect the rights defined in this Article 9.
9.5 Domain Name
The Customer Site shall have its URL under Customer’s domain name, http://www.______.com, which domain name is and shall remain the sole property of Customer (the “Primary Domain Name”). In addition, Developer shall register any other domain names which are necessary for the efficient and proper development and operation of the Customer Site, which domain names will ultimately resolve to the Primary Domain Name (the “Secondary Domain Names”). All Secondary Domain Names shall remain the sole property of Customer. To the extent that title to the Primary Domain Name and the Secondary Domain Names does not vest in Customer by operation of law, Developer hereby assigns all rights, title and interests to Customer which Developer has, may have, or may hereafter have, if any, in and to the Primary Domain Name and Secondary Domain Names. Developer shall promptly, upon Customer’s request, execute any documents and submit any documents to Network Solutions, Inc. and/or other agency which are necessary to give full force and effect to the foregoing assignment.
9.6 Content License
Customer hereby grants to Developer a non-exclusive, non-transferable, limited license, solely during the Initial Term of this Agreement and any Renewal Period, to use the Content solely for the benefit of Customer in accordance with the terms and conditions of this Agreement. Developer may make such copies of the Content as may be necessary to perform its obligations under this Agreement, including back-up copies of the Content.
10. Confidentiality
10.1 Confidentiality
Unless otherwise agreed to in writing by Customer, Developer shall maintain the strict confidentiality and shall not disclose to any third party the existence of, or terms and conditions of, this Agreement. In addition, Developer, in performing the Services for Customer hereunder, will have access to or be exposed to, directly and indirectly, Customer Materials, user information, data, knowledge, information about the marketing, product and/or business affairs of Customer, and proprietary and trade secret information of Customer, in oral, graphic, written, electronic or machine readable form (collectively, the “Confidential Information”). Confidential Information shall not include information which can be demonstrated: (i) to have been rightfully in the possession of Developer from a source other than Customer prior to the time of disclosure of said information to Developer hereunder (“Time of Receipt”); (ii) to have been in the public domain prior to the Time of Receipt; (iii) to have become part of the public domain after the Time of Receipt by a publication or by any other means except an unauthorized act or omission or breach of this Agreement on the part of Developer, its employees, or agents; or (iv) to have been supplied to Developer after the Time of Receipt without restriction by a third party who is under no obligation to Customer to maintain such information in confidence.
10.2 Obligations
All Confidential Information of Customer shall be held in strict confidence by Developer and shall not be disclosed or used by Developer without the prior written consent of Customer, except as provided in this Agreement, or as may be required by law pursuant to available confidentiality restrictions. Developer shall hold Confidential Information in strict confidence and shall use its best efforts to provide protection for Confidential Information, including measures at least as strict as those Developer uses to protect its own Confidential Information. Customer acknowledges that it may receive confidential information of Developer relating to its technical, marketing, product and/or business affairs. All such confidential information of Developer shall be held in strict confidence and shall not be disclosed or used without the prior written consent of Developer, except as may be required by law pursuant to available confidentiality restrictions.
11. Warranties
11.1 Developer Warranties
Developer represents and warrants that: (i) all of the Services to be performed hereunder will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable, trained and qualified personnel; (ii) the Deliverables and the Customer Site will appear and operate in conformance with the Specifications and the Customer Site Guidelines, and the Customer Site will be accessible by users of the Internet twenty-four (24) hours per day, seven (7) days per week; (iii) Developer has full authority to enter into this Agreement; (iv) all obligations owed to third parties with respect to the activities contemplated to be undertaken by Developer pursuant to this Agreement are or will be fully satisfied by Developer, so that Customer will not have any obligations with respect thereto; (v) Developer is the owner of or otherwise has the right to use and distribute the Software, the Developer Materials, and any other materials and methodologies used in connection with providing the Services hereunder; (vi) Developer will comply with all applicable federal, state and local laws in the performance of its obligations hereunder; (vii) the Software, the Developer Materials and other materials and methodologies used by Developer in fulfilling its obligations under this Agreement (except the Content) shall not infringe upon any third party copyright, trademark, patent, trade secret or other third-party right; (viii) the Customer Site shall not contain any Trojan horses, worms, viruses or other disabling devices; and (ix) Developer, in implementing the Customer Site, shall not alter the Customer Materials in any manner.
11.2 Customer Warranties
Customer represents and warrants that: (i) it has full authority to enter into this Agreement; (ii) all obligations owed to third parties with respect to the activities contemplated to be undertaken by Customer pursuant to this Agreement are or will be fully satisfied by Customer, so that Developer will not have any obligations with respect thereto; and (iii) Customer has provided Content for the Customer Site that does not infringe or violate copyright, patent, trademark, trade secret or other proprietary rights of any third party.
12. Disclaimers Of Warranty
THE WARRANTIES SET FORTH IN SECTIONS 1.2, 1.3, 3.3, 4.2, 4.6, 5.3 AND IN ARTICLE 11 OF THIS AGREEMENT ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY THE RESPECTIVE PARTIES. THE PARTIES EXPRESSLY DISCLAIM, AND HEREBY EXPRESSLY WAIVE, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER MAKES NO WARRANTIES OR GUARANTEES AS TO THE ACCURACY OR COMPLETENESS OF ANY CONTENT PUBLISHED OR MADE ACCESSIBLE ON THE CUSTOMER SITE.
13. Indemnification And Insurance
13.1 Developer Indemnification
Developer shall indemnify, defend, and hold harmless Customer, its directors, officers, employees and agents, against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that the same is based upon a claim that: (i) if true, would constitute a breach of any of Developer’s representations, warranties, or obligations hereunder; (ii) arises out of the negligence or willful misconduct of Developer; or (iii) any of the Developer Materials, or Services or Deliverables or the Customer Site or any portion thereof infringes or violates any patents, copyrights, trade names, trade secrets, licenses, or other rights of any third party.
13.2 Customer Indemnification
Customer shall indemnify, defend, and hold harmless Developer, its directors, officers, employees and agents, with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that the same is based upon a claim that any of the Content provided by Customer infringes or violates any U.S. patents which have issued as of the Effective Date, copyrights, trademarks, trade secrets, licenses, or other property rights of any third party.
13.3 Notice
In claiming any indemnification hereunder, the indemnified Party shall promptly provide the indemnifying Party with written notice of any claim which the indemnified Party believes falls within the scope of this Article 13. The indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified Party may not be entered into without the indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed.
13.4 Insurance
Developer shall, throughout the Initial Term of this Agreement and any Renewal Period (as those terms are hereinafter defined), maintain an errors and omissions insurance policy(ies) in an amount of not less than ____________ dollars($_______), covering all of the Software and Services to be provided and performed hereunder. Developer agrees to notify Customer in writing of any amendment or cancellation of any such policy(ies) or difficulty in obtaining policies at a reasonable cost. Developer shall notify Customer when any claims made against the errors and omissions policies, in the aggregate, total in excess of __________ dollars($_______).
14. Term And Termination
14.1 Term
The initial term of this Agreement shall commence on the Launch Date and shall continue until the ________ anniversary thereof (“Initial Term”). Thereafter the Agreement shall automatically be renewed for successive periods of one (1) year (each a “Renewal Period”) for maximum of ________ aggregate years (“Complete Term”), unless terminated by either of the Parties pursuant to the terms of this Agreement.
14.2 Termination
Either Party may terminate this Agreement at any time upon written notice to the other Party in the event of the occurrence of one or more of the following events: (i) if a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by the other Party; or (ii) if such a petition is filed by any third party, or an application for a receiver of the other Party is made by anyone, and such petition or application is not resolved favorably by such Party within ____ days; or (iii) the other Party materially breaches any of its representations, warranties, obligations or agreements hereunder, and such breach, if capable of being cured, is not cured within ______________ days following receipt of written notice of such breach from the non-breaching Party. Termination under Section 14.2(iii) hereof shall be effective, at the non-breaching Party’s option, upon the breaching party’s receipt of a notice of a material breach under Section 14.2(iii).
14.3 Use of Software Upon Termination
In the event of any termination under Section 14.2, other than due to Customer’s default, Customer may continue to use or authorize a third party to use the Developer Materials for the period of the Complete Term in connection with the operation and maintenance of the Customer Site, without any further obligations to Developer for any Net Commercial Revenues or other amounts. However, Customer shall assume any third party licenses required for such continued use of third-party software.
14.4 Survival
Upon expiration or termination of this Agreement, all provisions comprising the Parties’ express warranties provided herein, in addition to Sections 2.6, 5.1, and Articles 7, 9 (except Section 9.6), 10, 11, 12, 13 (except Section 13.4), 14 (except Section 14.6), and 15 shall survive.
14.5 Return of Customer Materials and Advertising
Upon expiration or termination of this Agreement, or upon request by Customer, Developer shall immediately (i) cease using and return to Customer (or at Customer’s request, destroy) all copies of Customer Materials, if any, in its control or possession, in addition to all other property belonging to and/or received from Customer; and (ii) cease selling advertising on the Customer Site.
14.6 Transfer of Services
Upon termination or expiration of this Agreement, Developer shall, at no cost to Customer, provide reasonable assistance to Customer and any third parties authorized by Customer in assuming performance of those Services necessary for the continued and uninterrupted operation of the Customer Site.
15. General Provisions.
15.1 No Agency or Joint Venture
The Parties agree and acknowledge that the relationship of the Parties is in the nature of an independent contractor. This Agreement shall not be deemed to create a partnership or joint venture and neither Party is the other’s agent, partner, employee, or representative.
15.2 Force Majeure
Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God or any act beyond its reasonable control provided that such Party gives the other Party written notice thereof promptly upon discovery thereof and uses its best efforts to cure the delay.
15.3 Partial Invalidity
Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity.
15.4 No Waiver
The failure of either Party to partially or fully exercise any right or the waiver by either Party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.
15.5 No Assignment
Developer shall not assign this Agreement or any of its rights or obligations under this Agreement to any other entity without the prior written consent of Customer. Furthermore, no work to be performed by Developer hereunder shall be subcontracted to or performed on behalf of Developer by any third party, except with the prior written consent of Customer.
15.5.1 Notices
Any notice required or permitted to be sent shall be in writing and shall be sent in a manner requiring a signed receipt such as authenticated Internet transmission, authenticated facsimile transmission, FedEx or like courier delivery, or if mailed, then mailed by registered or certified mail, return receipt requested. Notice is effective upon receipt. Notices shall be sent to the addresses first set forth above to the attention of the signatories of this Agreement.
15.6 Entire Agreement
This Agreement, including any Exhibits annexed hereto, set forth the entire agreement between the Parties on this subject and supersedes all prior negotiations, understandings and agreements between the Parties concerning the subject matter, including without limitation, the Letter of Intent between the Parties dated September 25, 1996. Notwithstanding the foregoing, the Script Loan and Confidentiality Agreement between the Parties dated November 20, 1996 shall remain effective and in force. No amendment or modification of this Agreement shall be made except by a writing signed by the Party to be bound thereby.
15.7 Governing Law
This Agreement shall be governed and interpreted in accordance with the laws of the state of ___________ without regard to principles of conflict of laws. The Parties agree to submit to the exclusive jurisdiction over all disputes hereunder in the appropriate courts in the State of ____________.
IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the Effective Date.
| By: ____________________ | By: __________________ |
| Print Name: _______________ | Print Name: ____________ |
| Title: ____________________ | Title: _________________ |
| Date: ____________________ | Date:_________________ |
