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3.37 Form: Web Site Development and Services Agreement
This AGREEMENT (the "Agreement"), in connection with the design
and hosting of a Web Site on the World Wide Web ("WWW"), is
made and entered into as of the ______ day of ______, 19___ (the
"Effective Date"), by and between XYZ, Inc., a New York corporation
located at 123 Third Avenue, New York, New York 10012 ("XYZ")
and PDQ Software., a Delaware corporation located at 345 West 45th
Street, New York, New York 10036 ("PDQ").
WITNESSETH
WHEREAS, PDQ is in the business of offering Internet services
relating to, among other things, development of sites on the WWW
portion of the Internet and hosting of such sites, and is willing to
provide services to XYZ on the terms and subject to the conditions set
forth below; and
WHEREAS, XYZ desires to engage PDQ, and PDQ desires to be
engaged by XYZ, to provide Internet services on the terms and subject
NOW, THEREFORE, in consideration of the mutual promises set
forth herein, PDQ and XYZ (collectively, the "Parties") hereby agree
as follows:
1. Definitions
1.1 Additional Services
The term "Additional Services" shall mean the services described in
Article 2.5 of this Agreement, including the services identified in
Schedule 1 hereto.
1.2 Available
The term "Available" shall mean the status of the Web Site being
accessible via the WWW portion of the Internet by End Users, as
defined in Article 1.6 below.
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1.3 Beta Site Testing
The term "Beta Site Testing" shall mean the series of tests of the Web
Site (as that term is defined in Article 2.1 below), in the sole and
absolute discretion of XYZ, to be performed by XYZ, or a third party
under XYZ's control, to determine the acceptability of the Web Site.
1.4 End User Database
The term "End User Database" shall mean the database to which PDQ
will establish a link to the Web Site created and hosted hereunder, for
use as described in Schedule 1.
1.5 End User Interface
The term "End User Interface" shall mean all aspects of the look and
feel, navigational structure, method of use, interfaces, icons, buttons
and logos associated with any aspect of the Web Site, including
without limitation, any software or documentation which is part of the
Web Site and which embodies or renders such aspects.
1.6 End Users
The term "End Users" shall mean end users, whether individuals or
entities, anywhere in the world who have the capability to access the
Web Site.
1.7 Host Server
The term "Host Server" shall mean the dedicated server as described in
Schedule 1, connected to the WWW, that is to house the Web Site
upon receipt of the Acceptance Letter and allow access to End Users
(as defined herein).
1.8 Hosting Services
The term "Hosting Services" shall mean the hosting services described
in Schedule 1 to this Agreement.
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1.9 Initial Pages
The term "Initial Pages" shall refer to the first ______ (___) Pages for
the Web Site which are to be developed according to the Approved
Specifications in consideration for the Development Fee as defined in
Article 7.1.
1.10 Initial Term
The term "Initial Term" shall have the meaning set forth in Article
11.1 of this Agreement.
1.11 Monthly Hours
The term "Monthly Hours" shall refer to the ______ (___) hours
available to XYZ for Hosting Services from PDQ each month of the
Term in consideration for the Hosting Fee.
1.12 Page
The term "Page" shall refer to any one of the pages of content
contained in the Web Site to be developed, maintained and hosted
hereunder according to the terms herein.
1.13 Promotion Services
The term "Promotion Services" shall mean all services to be provided
by PDQ in connection with the launch, promotion, marketing, and
attraction of End Users to the Web Site, as more particularly described
in ____________.
1.14 Renewal Period
The term "Renewal Period" shall mean any successive one year period
following the expiration of the Initial Term which has been renewed
and extended beyond the Initial Term pursuant to Article 11 herein and
during which this Agreement shall remain in effect.
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1.15 Site Activity Report(s)
The term "Site Activity Report" shall mean the reports created by PDQ
that are delivered to XYZ hereunder on a weekly basis as part of the
Hosting Services, using a software product that conforms with the
Approved Specifications and other required functionality, as more
particularly described in Schedule 1. Each Site Activity Report will
provide all information gathered by PDQ regarding use of the Web
Site.
1.16 Term
The term "Term" shall mean the Initial Term together with all
Renewal Periods hereunder.
1.17 XYZ Content
The term "XYZ Content" shall mean any materials provided by XYZ
for incorporation in the Web Site, including, but not limited to, any
images, photographs, illustrations, graphics, audio clips, video clips or
text.
1.18 XYZ Project
The term "XYZ Project" shall mean the Services, the Web Site and the
Page Development (as defined in Article 2.4) to be performed by PDQ
under the term of this Agreement.
1.19 Web Site
The term "Web Site" shall mean the web site to be developed by PDQ
for XYZ pursuant to this Agreement as defined in Article 2.1.
2. Development Services
2.1 Scope of PDQ Services
Subject to the terms and conditions of this Agreement, PDQ shall, at
no cost to XYZ other than as expressly set forth herein, timely perform
the services and deliver the materials as described in this Agreement
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("Deliverables") and on the applicable Schedules annexed hereto, and
as subsequently agreed to in writing by the Parties, in order to design,
develop and deliver to XYZ a web site (the "Web Site") on the WWW
portion of the Internet so that the Web Site may be accessed by End
Users, and to update and provide the Hosting Services with respect to
the Web Site, all as provided herein (the "Services'').
2.2 Web Site Development and Implementation
As part of the Services, PDQ shall complete each of ______ (___)
milestones ("Milestone(s)") in connection with development of the
Web Site, according to the schedule for each such Milestone set forth
in Schedule 2 hereto.
2.2.1 Web Site Definition
PDQ shall consult with XYZ regarding definition for the Web Site and
shall deliver a written detailed functional description ("the Web Site
Definition") which shall include, without limitation, the layouts for
links to other sites, and linking specifications and communication
procedures for the End User Database, to XYZ for approval
("Milestone 1"). XYZ will review the definition and approve or reject
such definition in XYZ's sole discretion by sending a written notice to
PDQ ("Milestone 2"). If the Web Site Definition is rejected by XYZ,
XYZ will provide written reasons for the rejection and PDQ will
correct and re-deliver such definition within ______ (___) business
day(_).
2.2.2 Specifications
Subject to Section 2.2.6, if the Web Site Definition is accepted by
XYZ, PDQ, in consultation with XYZ, shall then prepare detailed
written specifications consistent with, and containing (1) all of the
functionality set forth in Schedule 1 for the specific number of Pages
(as determined by XYZ) of the Initial Pages, to be initially created by
PDQ; and (2) the Web Site Definition including, without limitation,
the End User Interface for the Web Site, the layouts and positioning
for hypertext, buttons or navigation bar links to other sites that are
requested to be linked by XYZ, the location and layout of sound and
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video clips and the procedure for interacting with the End User
Database, and the maintenance of all of the foregoing (collectively the
"Specifications") and deliver such Specifications to XYZ for approval,
according to the implementation plan set forth in Schedule 2. XYZ
will review the Specifications and approve or reject the Specifications
in XYZ's sole discretion by sending a written notice to PDQ
("Milestone 3"). If the Specifications are rejected by XYZ, XYZ will
provide written reasons for the rejection and PDQ will correct and re-
deliver such Specifications within ______ (___) business days.
2.2.3 Approval of Specifications
The Specifications which have been approved in writing by XYZ
("Approved Specifications") shall automatically become incorporated
by reference into this Agreement.
2.2.4 Prototype
PDQ will develop the Web Site according to the Approved
Specifications and install and implement the Web Site in a semi-final
state of completion ("Prototype") in PDQ's offices or another PDQ
location, provided that the Prototype is accessible by XYZ (the
"Server"). PDQ will present a Prototype review of the Web Site to
XYZ ("Prototype Review"). XYZ will explore and test the Prototype
during the remainder of Prototype Review through means of remote
secured password protected access to the Server and communicate any
required changes in writing to PDQ at the completion of Prototype
Review ("Milestone 4").
2.2.5 Acceptance of the Web Site
PDQ will incorporate the changes resulting from Prototype Review
and install and implement the completed Web Site, according to the
Approved Specifications, in final form on the Server within ______
(___) business days of completion of Milestone 4. PDQ will notify
XYZ that the final Web Site has been installed on-line and is ready for
Beta Site Testing ("Milestone 5"). XYZ shall have two weeks for Beta
Site Testing of the Web Site and will notify PDQ at the completion of
the two week period of XYZ's acceptance or rejection of the Web Site
in XYZ's sole discretion by sending a written notice to PDQ. If XYZ
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rejects the Web Site, XYZ may in its sole discretion, either (1) submit
written notice of errors and defects ("Defects") with the Web Site to
PDQ and PDQ shall have ______ (___) business days to correct such
Defects, or (2) terminate this Agreement according to Article 2.2.6
below, and have no further obligation or liability of any kind to PDQ.
If XYZ accepts the Web Site, XYZ will send to PDQ a letter of
acceptance ("Acceptance Letter''). Upon receipt of such letter, PDQ
make Available the Web Site on the dedicated Host Server
("Milestone 6"). PDQ will also, upon receipt of the Acceptance Letter,
immediately provide to XYZ all source code and HTML, CGI scripts,
all artwork and final copies of all other Deliverables, in an electronic
or magnetic media to be mutually agreed upon. XYZ's acceptance of
any Milestone hereunder shall not represent a waiver of any of PDQ's
ongoing obligations hereunder.
2.2.6 Termination of the Project During Implementation
XYZ may, at any of the six Milestones, terminate this Agreement,
instruct PDQ to de-install the Web Site from both the Test Server and
the dedicated Host Server, to the extent that installation has occurred.
In such event, each party will return all Confidential Information of the
other party, PDQ shall return all XYZ Content to XYZ, and neither
party shall have any further obligation to the other except the
provisions herein that survive termination of this Agreement according
to Article 12.13.
2.2.7 Initial Pages
PDQ agrees, at no additional charge to XYZ beyond the Development
Fee, to develop, install and implement all of the Initial Pages as
individual web Pages, according to the Approved Specifications,
within the Web Site containing the characteristics specified by XYZ in
its sole discretion from time to time as part of the XYZ Project ("Initial
Page Development"). Any other Pages requested by XYZ after the
number of Initial Pages have been depleted will be an Additional
Service to be performed by PDQ pursuant to Article 2.4. Each Page,
whether or not part of the Initial Pages, will be subject to the written
approval of XYZ in advance of implementation into the Web Site.
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2.2.8 Delivery of XYZ Content
XYZ shall deliver the initial XYZ Content to PDQ within ______
(___) days of execution of this Agreement, or as otherwise agreed
between the parties. XYZ shall deliver additional XYZ Content to
PDQ as mutually agreed throughout the XYZ Project and during the
Term.
2.2.9 Change Order Procedure
If, at any time after XYZ has communicated its approval of the
Specifications, XYZ wishes to implement any revisions to the Web
Site that deviate in any material respect from the Approved
Specifications (other than updates to the XYZ Content in any portion
of the Web Site), XYZ shall submit to PDQ a written change order
request ("Request") containing such revisions in detail. PDQ agrees to
incorporate such revisions into the Approved Specifications (and
incorporate the revisions into the Web Site) at no additional cost to
XYZ, to the extent that they do not require substantial labor hours to
implement. In the event that such revisions do require substantial labor
hours to implement, PDQ shall within ______ (__) business day of
receipt of the Request, submit to XYZ a proposed change order
("Change Order"), including a fixed price quote and containing the
scope of the revisions to be performed. Upon XYZ's written agreement
to the Change Order, it shall thereupon become an amendment to this
Agreement.
2.3 Hosting Services
Upon receipt of the Acceptance Letter of the Web Site by XYZ,
Hosting Services shall commence and shall continue for the Term of
this Agreement, unless earlier terminated according to the terms
herein.
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2.4 Additional Services
PDQ agrees to perform certain additional services to develop and
implement additional pages to the Web Site, as specified by XYZ (the
"Additional Services"). With respect to such Additional Services, the
Parties shall execute a work order form (each an "Order Form") in the
form attached hereto as Schedule 3, upon which each such Schedule 3
shall be incorporated into and shall become a part of this Agreement
and shall be subject to the terms and conditions hereof. Additional
Services will be provided by PDQ in consideration for the Additional
Fees indicated in Schedule 4.
2.5 Dedicated Server
The Host Server shall be dedicated to the Web Site and will not be
used to host any other web sites. PDQ shall host the Web Site on the
Host Server beginning as of receipt of the Acceptance Letter. If at any
time during the Term, XYZ elects to transition the Web Site to a non-
dedicated server, XYZ shall give ______ (___) days notice to PDQ of
such election. PDQ shall thereafter host the Web Site on such non-
dedicated server beginning as of the first day of the first calendar
month following the expiration of such ______-day period, and shall
discontinue invoicing XYZ for the Dedicated Server Fee set forth in
Schedule 4 as part of the Hosting Fee, as of that date.
3. Web Site Performance
3.1 Performance Characteristics
As part of the Services, PDQ will ensure the following with respect to
the Web Site performance:
3.1.1 Uptime
Except as otherwise agreed in writing by the Parties, the Web Site and
the Hosting Services shall be Available and fully accessible to End
Users via the WWW twenty-four hours per day, seven (7) days per
week, with the sole exception of scheduled maintenance periods,
which, when otherwise agreed to in writing shall last no longer than
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______ (___) hour per week but which shall not be scheduled on any
day between the hours of ____ a.m. and ____ p.m., Eastern Time.
3.1.2 Unique Domain Name
The Web Site shall be hosted by PDQ for XYZ under a unique domain
name, selected by XYZ, dedicated exclusively to the XYZ Web Site
("Domain Name(s)"), and no other Web site, content, data,
information or materials shall be located under such unique Domain
Name(s) other than as necessary to host the Web Site on behalf of
XYZ. PDQ will register such Domain Name with InterNIC or other
such Internet administrative party on XYZ's behalf, if requested by
XYZ, and XYZ will be the registered owner and contact. All such
Domain Name(s) will be the sole and exclusive property of XYZ and
XYZ will have sole and exclusive control over such Domain Name(s).
3.1.3 Technology Update
During the Term of this Agreement, PDQ shall, at no additional cost to
XYZ, ensure that the Server, the Web Site and all Pages are
maintained so as to be compatible with, and accessible to End Users
using, the then-current developments, versions and updates of Inter-
net-related technology, within a reasonable time after such technology
becomes commercially available. Without limitation of the foregoing,
PDQ agrees that at all times during the Term of this Agreement, and at
no extra cost to XYZ, the Web Site will be compliant with the then-
current and most recent HTML specification, and will be optimized for
viewing with the then-current and most recent versions of the
Microsoft Internet Explorer and Netscape Navigator browsers. To the
extent that any generally available developments, versions and updates
of Internet-related technology make available any new or enhanced
features or functionality that can be incorporated into the Web Site and
the Pages, PDQ will offer to alter the Web Site and Pages to take
advantage of such technical developments. Such services shall be
offered to XYZ by PDQ as part of a proposal that will include prices,
specification descriptions and estimated delivery dates, all subject to
PDQ's treatment of XYZ as its most favored customer.
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3.1.4 Response Time
The Host Server from which an End User accesses the Web Site shall
have a response time, measured at the Host Server, from the receipt at
the Host Server of a request until the commencement of the responsive
process from the Host Server, of no more than ______ (___)
second(s), provided, however that XYZ may terminate this Agreement
pursuant to Article 11.2 at its reasonable discretion if the response time
to End Users is unreasonably slow.
4. Hosting Services
4.1 Web Site Hosting Services
Upon receipt of the Acceptance Letter at no additional charge beyond
the Hosting Fee as identified in Schedule 4, PDQ will expend labor
hours to maintain the Web Site on the WWW (including the
Maintenance and Support Services described in Article 4.4 below), up
to the number of Monthly Hours, and shall update the Web Site with
new XYZ Content supplied in the discretion of XYZ. These Hosting
Services shall include the dedicated Host Server and its upkeep and
maintenance, T-1 Bandwidth, weekly Site Activity Reports, technical
support for, and maintenance of, the Web Site and Pages and repairs,
and all services as set forth in Articles 3 and 4 of this Agreement. To
the extent that Monthly Hours are depleted in the provision of Hosting
Services during any particular month, PDQ will expend any necessary
number of additional labor hours (subject to the advance approval of
XYZ) to conduct the Hosting Services for that month, which will
initially be deducted from any remaining Monthly Hours that were not
fully utilized during any prior month of the Term, and after depletion
of all available Monthly Hours remaining from prior months, will be
chargeable to XYZ at the Hourly Rate set forth in Schedule 4,
provided that the applicable approvals were obtained. Hosting Services
will be provided for a period of ______ (___) year(s) commencing
upon receipt of the Acceptance Letter. Thereafter, the Hosting
Services may be extended for successive Renewal Periods as set forth
in Article 11.1, provided that after termination of two (2) Renewal
Periods, the Hosting Fee for any subsequent Renewal Periods is
subject to re-negotiation between the parties Initial Term, the Hosting
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Fee for any Renewal Period will be agreed upon by the parties, subject
to PDQ's treatment of XYZ as its most favored customer.
4.2 End User Database Maintenance
The maintenance of the End User Database shall be in accordance with
the Approved Specifications and shall include, without limitation, the
loading of new End User Records (as defined in Schedule 1) and the
population of all fields in the End User Database for the corresponding
new End Users. Such maintenance of the End User Database, to be
performed by PDQ in consideration for the Database Maintenance Fee,
as set forth in Schedule 4 ("Database Maintenance''). Such Database
Maintenance shall include without limitation, the receipt, loading and
updating of information, supplied by End Users of the Web Site and
shall be performed, on a weekly basis, to account for all of the End
Users who have filled in an on-line registration form (or modified a
pre-existing registration form) in the preceding week.
4.3 Storage
In the event that the Web Site requires storage and transfer on the Host
Server which exceeds the amount of storage included in the Hosting
Services, XYZ may request that PDQ acquire additional incremental
storage to be included in the Hosting Services at no additional cost to
XYZ. PDQ shall provide the Hosting Services so that the Web Site is
accessible to third parties via the WWW portion of the Internet as
specified herein. PDQ shall convert XYZ Content received from XYZ
and update the Web Site with such material throughout the Term.
4.4 Maintenance and Support Services to XYZ
During the Initial Term and any Renewal Period, PDQ shall provide
the following maintenance and support services to XYZ as part of the
Monthly Hours as described in Article 4.1, in accordance with
standards set forth in the Approved Specifications, at no additional
cost to XYZ other than the Hosting Fee:
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4.4.1 Access to Help
PDQ shall provide XYZ, with support services as part of the Hosting
Services that shall include, without limitation: (i) creating, maintaining
and updating help and support pages accessible by End Users within
and as a part of the Web Site including a list of frequently asked
questions, and (ii) a PDQ help desk accessible by XYZ twenty-four
hours per day seven days per week, provided that after PDQ's business
hours, the help desk support will be accomplished through a pager to a
PDQ employee capable of addressing problems with the Web Site
and/or Server and providing the services as contemplated in this
Article 4. PDQ will provide XYZ with this pager number (and
employee name) as of the date the Hosting Services commence and
will provide updated information as applicable.
4.4.2 PDQ Service Response Time
PDQ shall, use best efforts to correct, within three (3) hours of the
time of discovery by PDQ or notification to PDQ (the "Time of
Discovery"), any defects, errors or omissions in the Web Site
discovered by PDQ or communicated to PDQ by XYZ, which
materially impact the performance, delivery, accessibility or
availability of the Web Site. In the event PDQ is unable to comply
with the requirements set forth in the foregoing sentence, then XYZ
shall be entitled to a credit of ______ dollars ($______) against any
fees due hereunder for each hour beginning one hour after Time of
Discovery, until the defect, error or omission has been corrected and
the performance, delivery, accessibility or availability of the Web Site
has been restored to be in accordance with this Agreement.
5. Proprietary Rights And License
5.1 XYZ Content
All XYZ Content shall remain the sole and exclusive property of XYZ,
including, without limitation, all copyrights, trademarks, patents, trade
secrets and any other proprietary rights. Nothing in this Agreement
shall be construed to grant PDQ any ownership right in, or license to,
the XYZ Content, except as provided in Article 5.5 of this Agreement.
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To the extent that PDQ updates, modifies, combines or otherwise
creates any derivative work from XYZ Content, such shall be part of
the Work Product subject to Article 5.2 below.
5.2 Web Site Proprietary Rights
All materials included in or pertaining to the Web Site and Pages and
all other Deliverables hereunder, any updates or modifications thereto
or derivative works thereof, and all ideas, designs, and formats
embodied therein, including but not limited to any computer software
(in object code and source code form), script, animation sequences, the
User Interface, programming code, applets, data, information or
HTML or other scripts developed or provided by PDQ or its suppliers
under this Agreement, audiovisual displays created hereunder for XYZ
(collectively, the "Work Product") are and shall remain the property of
XYZ, and all rights, title and interest therein shall vest in XYZ and
shall be deemed to be a "work made for hire" for XYZ and made in the
course of the Services rendered hereunder. To the extent that title to
the Work Product does not, by operation of law, vest in XYZ or is not
considered works made for hire, then all right, title and interest therein
are hereby irrevocably assigned to XYZ. The Work Product, all
copyright, trademark, trade dress, trade secret, patent and other
proprietary rights therein shall belong exclusively to XYZ with XYZ
having the right to obtain and to hold in its own name copyright
registrations and such other protections as may be appropriate to the
subject matter, and any extensions and renewals thereof. In addition,
any and all data and information about, or provided by, End Users of
the Web Site at any time whether or not included in the database
and/or any report ("User Information"), shall remain the sole and
exclusive property of XYZ, shall be considered XYZ's Confidential
Information, as defined in Article 5.3, and all rights, title and interest
therein shall vest in XYZ. All such User Information gathered or in the
possession of PDQ will be forwarded to XYZ upon receipt by PDQ.
PDQ agrees to give XYZ any reasonable assistance required to perfect
the rights defined in this Article.
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5.3 Confidentiality
During the course of this Agreement, information that is confidential
or proprietary to one party ("Disclosing Party") may be disclosed to
the other party ("Receiving Party"), including, but not limited to
software, technical processes and formulas, source codes, product
designs, sales, cost and other unpublished financial information,
product and business plans, advertising revenues, usage rates,
advertising relationships, projections, and marketing data
("Confidential Information"). Confidential Information shall not
include information that the Receiving Party can demonstrate (a) is, as
of the time of its disclosure, or thereafter becomes part of the public
domain through a source other than the Receiving Party, (b) was
known to the Receiving Party as of the time of its disclosure, (c) is
independently developed by the Receiving Party, or (d) is
subsequently learned from a third party not under a confidentiality
obligation to the Disclosing Party. Except as provided for in this
Agreement, each party shall not make any disclosure of the
Confidential Information to anyone other than its employees who have
a need to know in connection with this Agreement. Each party shall
notify its employees of their confidentiality obligations with respect to
the Confidential Information and shall require its employees to comply
with these obligations. The confidentiality obligations of each party
and its employees shall survive the expiration or termination of this
Agreement.
5.4 PDQ Links
PDQ shall be permitted to place a credit and logo on the Web Site
which will be in a font size, format and location to be determined by
XYZ that links to PDQ's homepage. PDQ shall provide proof of
ownership of any mark proposed to be used by PDQ as an icon and
proof of its trademark registration of any proposed logo to be included
in such placement. In the event that XYZ approves such a link to the
PDQ homepage, PDQ will install a hypertext link on its homepage,
according to the design for such hypertext link included in the
Approved Specifications, to link to the Web Site, and will include on
its homepage or in its linked guest-use policy that owners of linked
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pages and web sites have no involvement with, control over or
responsibility for, the content or performance of PDQ's site.
5.5 Grant of License to PDQ
XYZ hereby grants to PDQ a non-exclusive, worldwide, royalty-free
license for the Initial Term and any Renewal Period to edit, modify,
adapt, translate, exhibit, publish, transmit, participate in the transfer of,
reproduce, create derivative works from, distribute, perform, display,
and otherwise use XYZ Content and Work Product solely to the extent
necessary to render the Services to XYZ under this Agreement. At
XYZ's request at any time, PDQ shall destroy or deliver to XYZ all
copies of the XYZ Content, Work Product and other materials
provided to PDQ. In no event shall PDQ use any trademarks or service
marks of XYZ without XYZ's prior written consent. Unless otherwise
agreed in writing by XYZ, the transfer or attempted transfer of the
Web Site to any host server other than the dedicated Host Server shall
automatically terminate the foregoing license.
6. Content
6.1 Accuracy and Review of XYZ Content
XYZ assumes sole responsibility for (a) acquiring any authorization(s)
necessary for hypertext links to third party Web sites from the Web
Site, (b) the accuracy of materials provided to PDQ, including, without
limitation, XYZ Content and (c) ensuring that the XYZ Content does
not infringe or violate any right of any third party.
7. Fees And Taxes
7.1 Web Site Development Fee
In consideration for the Services and the Initial Page Development to
be rendered by PDQ as defined herein, XYZ shall pay to PDQ,
according to the payment schedule in Schedule 4 attached hereto, the
firm fixed fee as designated in Schedule 4 ("Development Fee"). The
Development Fee shall constitute the entire compensation for all work
in connection with the XYZ Project, including without limitation
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downloading XYZ Content, development of all Initial Pages, all
HTML programming and all other tasks identified in Schedule 1
and/or the Approved Specifications.
7.2 Hosting Fees
XYZ shall pay a monthly fee ("Hosting Fee") for Hosting Services as
described in Article 4.1 and as set forth in Schedule 4, payable on or
before the first day of each month throughout the Term. XYZ shall pay
a monthly fee ("Site Activity Report Fee") for the receipt of Site
Activity Reports as set forth in Schedule 4, payable on or before the
first day of each month throughout the Term.
7.2.1 Database Maintenance Fees
XYZ shall pay the Database Maintenance fee ("Database Maintenance
Fee") for each labor hour expended by PDQ for the maintenance of the
End User Database as set forth in Article 4.2, provided that XYZ has
given advance prior approval for any number of labor hours expended
in excess of ______ (___) hours.
7.3 Additional Fees
Unless otherwise' agreed by the Parties, XYZ shall have no obligation
to pay any additional amounts beyond the Development Fee, the
Hosting Fees, the pre-approved Database Maintenance Fees and the
Site Activity Report Fee. In the event that XYZ requests Additional
Services or any other services that are not part of the XYZ Project,
Initial Page Development or Hosting Services or Maintenance
Services, XYZ shall pay PDQ at the Hourly Rate specified in Schedule
4, not to exceed the maximum amounts specified in Schedule 4, per
hour. These hourly rates will be applicable for any work requested by
XYZ for the period of two (2) years from the date of receipt of the
Acceptance Letter.
7.4 Taxes
XYZ shall pay or reimburse PDQ for all sales and use taxes levied or
imposed by reason of the performance by PDQ under this Agreement;
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excluding, however, income taxes on PDQ's gross income,
employment taxes and taxes based on professional licenses or business
operations which may be levied against PDQ.
7.5 Profit Derived from Web Site
PDQ shall have no right to any profits derived from the sale, use or
application of the Web Site.
8. Warranties
8.1 PDQ Warranties
PDQ makes the following ongoing representations and warranties to
XYZ:
8.1.1 The Web Site and all Deliverables hereunder (except for XYZ
Content provided by XYZ) will be PDQ's own and original creation,
except for information validly licensed by PDQ or in the public
domain;
8.1.2 The Web Site and all Deliverables will include only information
that PDQ is authorized to use and to authorize XYZ to use;
8.1.3 The Web Site, all Deliverables, and their use will not constitute a
libel or defamation, or conflict with or infringe upon or violate any
copyrights, trademark rights, patent rights, trade secret rights, rights of
publicity or privacy or other rights of, and will not cause injury to, any
third party;
8.1.4 Use of the Web Site and all Deliverables, will not give rise to
any claims against XYZ for any guild or other royalty fees or
payments of any kind;
8.1.5 Except with respect to the XYZ Content, all obligations owed to
third parties with respect to the activities contemplated to be
undertaken by PDQ in providing the Services to XYZ and under this
Agreement, including but not limited to all third-party licensing fees,
are or will be fully paid up by PDQ so that XYZ will not have any
obligations with respect thereto;
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8.1.6 The Web Site, all Deliverables and all materials contained
therein conform and will conform to all applicable federal, state and
local laws and regulations;
8.1.7 The Web Site and all Deliverables meet and conform with the
Approved Specifications and each of the functional, operational and
performance standards set forth or described in this Agreement, and
the information contained therein is and will be true and accurate;
8.1.8 The Web Site and all Deliverables will be free from defects in
material and workmanship under normal use and remain in good
working order;
8.1.9 The Web Site and all Deliverables will be free from any pre-
programmed devices, such as "viruses" or other such devices, that will
cause any component thereof to be erased or become inoperable or
incapable of processing or affect operations of other systems; and
8.1.10 PDQ has the power and authority to enter into and perform its
obligations under this Agreement, and PDQ's Services under this
Agreement shall be performed in a workmanlike manner.
8.2 XYZ Warranties
XYZ represents and warrants that (a) XYZ has the power and
authority to enter into and perform its obligations under this
Agreement, (b) XYZ Content does not and shall not contain any
content that is inaccurate or that infringes on or violates any right of a
third party, and that XYZ owns the XYZ Content or otherwise has the
right to place the XYZ Content on the Web Site and (c) XYZ has
obtained any authorization(s) necessary for hypertext links from the
Web Site to other third party Web sites.
8.3 Disclaimer of Warranty
THE WARRANTIES SET FORTH IN 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,
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INCLUDING WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
9. Indemnification
9.1 XYZ
XYZ agrees to indemnify, defend, and hold harmless PDQ, its
directors, officers, employees and agents, and defend any action
brought against same with respect to any third party claim, demand,
cause of action, debt or liability, including reasonable attorneys' fees,
to the extent that such action is based upon (i) a claim that any of the
XYZ Content as provided by XYZ hereunder (provided that PDQ has
followed XYZ's Approved Specifications and all instructions included
with such XYZ Content) infringes or violates any rights of third
parties, including, without limitation, rights of publicity, rights of
privacy, patents, copyrights, trademarks, trade secrets and/or licenses,
and/or (ii) any breach of this Agreement by XYZ or any act or
omission or alleged act or alleged omission by XYZ in connection
with this Agreement. 9.2 PDQ
PDQ agrees to indemnify, defend, and hold harmless XYZ, its
directors, officers, employees and agents, and defend any action
brought against same with respect to any claim, demand, cause of
action, debt or liability, including reasonable attorneys' fees, to the
extent that such action arises out of or in connection with (i) the gross
negligence or willful misconduct of PDQ, (ii) PDQ's breach of any
covenants, warranties or representations made herein and/or (iii) any
breach of this Agreement by PDQ or any act or omission or alleged act
or alleged omission by PDQ in connection with this Agreement.
9.3 Notice
In claiming any indemnification hereunder, an indemnified party shall
promptly provide the indemnifying party with written notice of any
claim which the indemnified party believes falls within the scope of
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the foregoing paragraphs. An 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 an indemnified party shall not be final
without the indemnified party's written consent, which shall not be
unreasonably withheld.
10. Limitation Of Liability
XYZ SHALL HAVE NO LIABILITY UNDER ANY
CIRCUMSTANCES FOR CONSEQUENTIAL, EXEMPLARY,
SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF
XYZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE LIABILITY OF XYZ, REGARDLESS OF THE
BASIS OF THE CLAIM, FOR ANY REASON AND UPON ANY
CAUSE OF ACTION SHALL BE LIMITED TO THE TOTAL
AMOUNT OWED TO PDQ BY XYZ HEREUNDER. THIS LIMIT
OF LIABILITY IS A MATERIAL TERM OF THIS AGREEMENT
AND XYZ'S EXECUTION OF THIS AGREEMENT WAS
DEPENDENT UPON ITS INCLUSION.
11. Termination And Renewal
11.1 Term
This Agreement shall be effective when signed by the Parties and
thereafter shall remain in effect for the Term as herein defined. The
Hosting Services shall commence upon receipt of the Acceptance
Letter and continue for two (2) years thereafter, unless earlier
terminated as otherwise provided in this Agreement (the "Initial
Term"). This Agreement shall be renewed beyond the Initial Term for
additional one (1) year Renewal Periods at the option of XYZ upon ten
(10) days written notice to PDQ prior to the end of the Initial Term
and/or in the then-current Renewal Period.
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11.2 Termination
Either party may terminate this Agreement if a bankruptcy proceeding
is instituted against the other party which is acquiesced in and not
dismissed within sixty (60) days, or results in an adjudication of
bankruptcy, or the other party materially breaches one or more of its
representations, warranties or obligations under this Agreement, and
such breach is not cured within thirty (30) days of receipt of notice
specifying the breach.
11.3 Termination for Convenience
XYZ shall have the right to terminate this Agreement for convenience
at any time during the Term, with thirty (30) days written notice to
PDQ. If such termination occurs within the first eight (8) months of
the Initial Term, then XYZ shall pay PDQ the Hosting Fees due as of
the date of such termination and an amount equal to the Hosting Fees
which would have been due PDQ for the remainder of such initial
eight_month period. If such termination occurs at any time after the
expiration of the first eight (8) months of the Initial Term, then XYZ
shall pay to PDQ the Hosting Fees due as of the date of such
termination and five percent (5%) of the Hosting Fees which would
have been due PDQ based on the number of months remaining in the
Initial Term or the then-current Renewal Period, as applicable. Except
as set forth in this Section 11.3 and with respect to the provisions of
this Agreement that survive termination, XYZ shall have no further
obligation to PDQ in connection with the termination of this
Agreement for XYZ's convenience.
11.4 Termination and Returns
Upon any termination or expiration of this Agreement for any reason,
PDQ shall deliver to XYZ all Deliverables for which XYZ has
tendered payment and each party shall return all Confidential
Information of the other party.
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11.5 Transition Obligation
Upon any termination or expiration of this Agreement, PDQ shall, at
no additional charge to XYZ, provide all reasonably requested support
in the transitioning of the Hosting Services to XYZ or a third party
vendor selected by XYZ, in its sole discretion, including without
limitation the transfer and any necessary conversion of all software,
HTML, databases and consulting regarding technology hosting
requirements.
12. Miscellaneous
12.1 Entire Agreement
This Agreement and attached Schedules constitute the entire This
cement between XYZ and PDQ with respect to the subject matter
hereof and there are no representations, understandings or agreements
which are not fully expressed in this Agreement. To the extent that
there is a conflict between the terms of this Agreement and the
Specifications, the terms and conditions of this Agreement shall
govern in the area of the conflict.
12.2 Independent Contractors
PDQ and its personnel, in performance of this Agreement, are acting
as independent contractors and not employees or agents of XYZ. No
PDQ personnel shall have the authority to bind XYZ or otherwise
create legal obligations on behalf of XYZ.
12.3 Amendments
No amendment, change, waiver, or discharge hereof shall be valid
unless in writing and signed by an authorized individual of the party
against which such amendment, change, waiver, or discharge is sought
to be enforced, except the automatic amendment procedures described
herein.
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12.4 XYZ Identification
PDQ may not use the name or identify XYZ in any capacity, in
advertising, publicity, press releases, marketing collateral or similar
materials distributed or displayed to prospective clients, without
XYZ's advance written permission. Subject to the foregoing, PDQ
shall have the right to insert a link from its "hotlinks" URL
("www.pdq.com/clients/index.html/") to the Web Site, provided
however that such link shall be discontinued by PDQ immediately
upon any termination of the Hosting Services, or this Agreement,
unless XYZ provides written notice to the contrary for any reasto PDQ
prior to, or concurrent with, such termination.
12.5 Force Majeure
If the performance of any part of this Agreement by either party is
prevented, hindered, delayed or otherwise made impracticable by
reason of any flood, riot, fire, judicial or governmental action, labor
disputes, act of God or any other causes beyond the control of either
party, that party shall be excused from such to the extent that it is
prevented, hindered or delayed by such causes, provided that the party
claiming force majeure has taken all reasonable measures to avoid
such cause.
12.6 Governing Law
This Agreement shall be governed in all respects by the laws of the
State of New York without regard to its conflict of laws provisions,
and XYZ and PDQ agree that the sole venue and jurisdiction for
disputes arising from this Agreement shall be the appropriate state or
federal court located in the State of New York, and XYZ and PDQ
hereby submit to the jurisdiction of such courts.
Agreement shall be governed in all respects by the laws of the State of
New York without regard to its conflict of laws provisions, and XYZ
and PDQ agree that the sole venue and jurisdiction for disputes arising
from this Agreement shall be the appropriate state or federal court
located in the State of New York, and XYZ and PDQ hereby submit to
the jurisdiction of such courts.
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12.7 Assignment
PDQ shall not assign, without the prior written consent of XYZ, its
rights, duties or obligations under this Agreement to any person or
entity, in whole or in part, whether by assignment, merger, transfer of
assets, sale of stock, operation of law or otherwise, and any attempt to
do so shall be deemed a material breach of this Agreement.
12.8 Notice
Any notice provided pursuant to this Agreement shall be in writing
and may be sent only by personal delivery, registered or certified mail
(return receipt requested), or by overnight express mail (e.g.; Federal
Express), or courier shipment if outside the United States, if such
service actually provides proof of mailing. The day of mailing of any
such notice will be deemed the date of the giving thereof (except
notices of change of address, the date of which will be the date of
receipt by the receiving party). Facsimile transmissions will not
constitute valid notices hereunder, whether or not actually received.
All notices shall be addressed as follows (or to such other address as
either party may in the future specify in writing to the other party):
In the case of PDQ:
PDQ Software ____________________________________
Fax: ______________________
Attention: ________________
In the case of XYZ:
XYZ, INC. ____________________________________
Fax: ______________________
Attention: ________________
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12.9 Waiver
The waiver of failure of either party to exercise any right in any
respect provided for herein shall not be deemed a waiver of any further
right hereunder or a subsequent exercise of the same fight in a
subsequent situation.
12.10 Severability
If any provision of this Agreement is determined to be invalid under
any applicable statute or rule of law, it is to that extent to be deemed
omitted, and the balance of the Agreement shall remain enforceable.
12.11 Counterparts
This Agreement may be executed in several counterparts, all of which
taken together shall constitute one single agreement between the
Parties hereto.
12.12 Headings
The section headings used herein are for reference and convenience
only and shall not enter into the interpretation hereof.
12.13 Survival
All provisions of this Agreement relating to PDQ warranties,
confidentiality, non-disclosure, proprietary rights, limitation of
liability, PDQ indemnification obligations and payment obligations
shall survive the termination or expiration of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to
be executed by their duly authorized representatives as of the date first
written above.
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PDQ Software XYZ, INC.
By: ___________________ By: ___________________
(Signature) (Signature)
Name: ________________ Name: _________________
Title: _______________ Title: ________________
Date: ________________ Date: _________________
