-1-
§ 3.26 Form: Network Services Agreement
This AGREEMENT (the "Agreement") is made and entered into as
of the _______ day of _____________________, 20__ (the "Effective
Date") by and between World Wide Technology Corp., a New York
corporation with a principal place of business at 1 Hudson Street, New
York, New York 10036 ("WWT") and Major Consumer Products, Inc.,
a New Jersey corporation with offices at 1 Gateway Plaza, Newark, N.J.
07102 ("Client").
1. Services
1.1 WWT Services
Upon the terms and subject to the conditions of this Agreement,
which includes all the Schedules attached hereto, WWT will provide to
Client the computer networking services set forth or described in
Schedule A attached hereto (collectively, the "Services"). The Services
shall consist of the following, but only to the extent set forth or
described in Schedule A: (i) consulting services relating to specific
projects (the "Consulting Services"), including, without limitation,
development of the work product described in, and for which
specifications are set forth in, Schedule A (the "Work Product"), if any;
(ii) network installation services (the "Installation Services"); and (iii)
services relating to the ongoing administration and/or maintenance of
computer network(s) (the "Administrative Services"). The Consulting
Services and the Installation Services will hereinafter be referred to
collectively as the "Non-Term Services" and will be delivered to Client
by WWT as per the schedule(s) set forth in Schedule A. WWT will
provide the Administrative Services to Client for the duration of the
Initial Term and any Renewal Period, as those terms are hereinafter
defined in this Agreement. Client agrees that WWT is responsible only
for providing the Services, and WWT is not responsible for providing
any services or performing any tasks not specifically set forth in
Schedule A hereto.
1.2 Client Obligations
Client shall perform the tasks, provide the resources and meet the
obligations set forth in Schedule B hereto. In addition, Client shall
provide WWT, at no charge, with all necessary, accurate, and reliable
information, data, files, documents and other records required by WWT
to perform the Services (the "Client Data").
-2-
1.3 Acceptance of Work Product
Client shall, within _______________ (__) days of WWT's delivery
thereof, review the delivered Work Product, if any, and approve it or
notify WWT in writing of its non-approval, documenting in reasonable
detail any and all material non-conformity of the delivered Work
Product to the specifications set forth in Schedule A. WWT shall, upon
receipt of such notice, use reasonable efforts to correct any such
material non-conformity which it determines in its sole discretion to be
bona fide and shall notify Client of its completion of the correction.
Client shall, after receipt of said notice from WWT, review the
delivered Work Product, at Client's sole expense, solely as is necessary
for the purpose of determining that all such identified defects have been
remedied, and shall thereupon report to WWT. Client shall do so
promptly using diligent efforts, but in no event shall Client's entire
review process exceed the aforementioned _______________ (__) days,
which shall be tolled from the date WWT receives a notice of material
non-conformity from Client to the date that WWT notifies Client of the
completion of the correction of the non-conformity. The Work Product
shall be deemed accepted by Client if:
(a) Client notifies WWT in writing of its approval and the approval date shall then be the date of such notice; or
(b) Client fails to notify WWT in writing within said _____-day time
period of any material defect in the Work Product and the
approval date shall then be the last day of said period; or
(c) Client uses any portion of the Work Product in production and the approval date shall then be the first day of such use.
In the event that the Work Product is not accepted pursuant to this
Paragraph, Client's sole remedy and WWT's sole liability shall be return
of the Work Product to WWT, along with the applicable documentation
and all copies thereof, and notification of WWT of Client's intent to
terminate the Consulting Services upon __________ (_____) days
written notice to WWT. During the _________-day period in the
preceding sentence, WWT shall have the opportunity to cure any
defects in such Work Product, and if such defects are not cured, Client
shall receive a refund of fees paid to WWT for the Work Product,
provided, however, that if such defects are so cured, such termination
shall not be effective and Client shall not be entitled to any refund. In
-3-
the event the Work Product is not accepted pursuant to this Paragraph,
WWT may terminate this Agreement upon written notice to Client
without further obligation to Client. This procedure is the exclusive
means by which Client shall be entitled to reject any Work Product, and
the exclusive remedy for any such failure to accept the Work Product.2. Software and Equipment2.1 Software Purchases
Client acknowledges and agrees that this Agreement does not apply
to computer software (other than Work Product) acquired by Client,
either through WWT, WWT's suppliers or another third party. Client's
rights and obligations with respect to any such software, other than the
Work Product, acquired from WWT or WWT's suppliers shall be
subject to the terms and conditions of WWT's Standard Software
License Agreement, a copy of which is annexed as Exhibit A hereto.
2.2 Equipment Purchases
Client acknowledges and agrees that this Agreement does not apply
to equipment or hardware of any type acquired by Client either from
WWT, WWT's suppliers or another third party. Client's rights and
obligations with respect to any such equipment or hardware acquired
from WWT or WWT's suppliers shall be subject to WWT's Purchase
Agreement Standard Terms and Conditions, a copy of which is annexed
as Exhibit B hereto.
3. Work Product; Proprietary Rights
3.1 License
Subject to Sections 3.2 and 3.3 hereof, WWT hereby grants to Client,
and Client hereby accepts, a limited, non-exclusive license to use the
Work Product, if any, solely for Client's own internal business purposes
(the "License"). The License shall remain in effect only so long as this
Agreement remains in effect. Client shall only permit access to the
Work Product by its employees who have a need to know in connection
with the license rights granted under this Agreement. Client shall not
sell, transfer, publish, disclose, display or otherwise make available any
portion of the Work Product to others. Client may create _________
(_____) copy(s) of the Work Product for bona fide back-up purposes
only. No identifying marks, copyright or proprietary right notices may
be deleted from any copies of the Work Product made by Client. Client
-4-
shall not modify, translate, decompile, nor create or attempt to create,
by reverse engineering or otherwise, the source code from the object
code supplied hereunder, or adapt the Work Product in any way or use it
to create a derivative work. To the extent the Work Product consists of
computer software, a copy of such computer software will be provided
to Client hereunder in object code form only under the License.3.2 Proprietary Rights
Client acknowledges that WWT may use pre-existing WWT
Proprietary Materials (as defined herein) in the performance of the
Services, including, without limitation, in developing the Work Product,
and that the Work Product may contain WWT Proprietary Materials or
information incorporating, based upon, or derived from WWT
Proprietary Materials, including reports and notes, whether in oral,
written, graphic, electronic or machine-readable form. WWT shall
retain all title to WWT Proprietary Materials and the Work Product,
including all copies thereof and all rights to patents, copyrights,
trademarks, trade secrets and other intellectual property rights inherent
therein and appurtenant thereto. As used herein, the term "WWT
Proprietary Materials" shall mean and include all proprietary
information, data and knowledge furnished or made available by WWT
to Client and copies thereof, whether in oral, written, graphic, electronic
or machine-readable form, including without limitation, designs, plans,
specifications, flow charts, techniques, methods, processes, procedures,
formulas, discoveries, inventions, improvements, charts, diagrams,
graphs, models, sketches, writings or other technical data, research or
information, and all trade secrets and other proprietary ideas, concepts,
know-how and methodologies. Except as provided in Section 3.1
herein, Client shall not, by virtue of this Agreement or otherwise,
acquire any proprietary rights whatsoever in WWT Proprietary
Materials, the Work Product or any other deliverables developed
hereunder, which shall be the sole and exclusive property of WWT. No
identifying marks, copyright or proprietary right notices may be deleted
from any copy of WWT Proprietary Materials or the Work Product
provided to Client. Notwithstanding the foregoing, in the event that the
Work Product contains Client Data, Client shall retain all rights to such
Client Data as it may have, including all copies thereof and all rights t o
patents, copyrights, trademarks, trade secrets and other intellectual
property rights inherent in such Client Data. WWT shall not, by virtue
of this Agreement or otherwise, acquire any proprietary rights
whatsoever in the Client Data, which shall be the sole and exclusive
-5-
property of Client. Nothing contained herein shall be construed so as to
affect the rights of WWT to use any WWT Proprietary Materials even if
such WWT Proprietary Materials have been incorporated into the Work
Product.3.3 Confidentiality
The parties acknowledge that in the course of performing their
responsibilities under this Agreement, they each may be exposed to or
acquire information that is proprietary to or confidential to the other
party or third parties. The parties agree to hold such information in
strictest confidence and not to copy, reproduce, sell, assign, license,
market, transfer, give or otherwise disclose such information to third
parties or to use such information for any purposes whatsoever, without
the express written permission of the other party, other than for the
performance of obligations hereunder or as otherwise agreed to herein,
and to advise each of their employees, agents and representatives of
their obligations to keep such information confidential. All such
confidential and proprietary information described herein (including,
but not limited to, business plans and data relating to each party, WWT
Proprietary Materials, or Client Data) and any deliverable provided
hereunder, in whatever form (including, but not limited to, the Work
Product) are hereinafter collectively referred to as "Confidential
Information." The parties shall use reasonable efforts to assist each
other in identifying and preventing any unauthorized use or disclosure
of any Confidential Information. Without limitation of the foregoing,
the parties shall use reasonable efforts to advise each other immediately
in the event that either learns or has reason to believe that any person or
entity has violated or intends to violate the terms of this Agreement, and
will reasonably cooperate in seeking injunctive relief against any such
person or entity.
3.4 Nonconfidential Information
Notwithstanding the obligations set forth in Paragraph 3.3, the
confidentiality obligations of the parties shall not extend to information
that:
(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;
-6-
(b) is independently developed by the receiving party;
(c) is subsequently learned from a third party not under a confidentiality obligation to the providing party; or
(d) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, whereupon the
disclosing party shall provide prompt written notice to the other
party prior to such disclosure, so that such party may seek a
protective order or other appropriate remedy. In the event that a
protective order or other appropriate remedy is not obtained, the
disclosing party agrees to disclose only that portion of the
Confidential Information which is required.
4. Payments to WWT
4.1 Charges—Non-Term Services
The fees for the Non-Term Services shall be based on WWT's then-
current time and materials rates, which WWT may change from time to
time, with notice to Client (the "Non-Term Service Fees"). The rate
schedule for the Non-Term Service Fees as of the Effective Date are set
forth in Schedule C hereto.
4.2 Charges—Administrative Services
The fees for the Administrative Services during the Initial Term shall
be as set forth in Schedule C hereto and may be increased from time to
time by WWT during any Renewal Period upon notice to Client (the
"Administrative Service Fees"). The Administrative Service Fees for
the Initial Term shall be paid by Client at the execution of this
Agreement, and the Administrative Service Fees for each Renewal
Period shall be due _________ (_____) days prior to the beginning of
each Renewal Period. With respect to (i) corrections and remedies to the
Work Product, if any, which WWT provides in response to a request by
Client and which WWT is not obligated to provide under this
Agreement, or (ii) corrections or difficulties or defects traceable to
Client's errors or system changes, or (iii) whenever WWT supplies
services at Client's site upon Client's request which are not part of the
Services, for the Initial Term and for each Renewal Period, Client shall
pay WWT for all efforts, and related expenses incurred by WWT,
toward such services, corrections or remedies at the then-current WWT
time and materials rates. (Items (i) through (iii) of the previous
sentence, in addition to all other items not covered by this Agreement,
are not part of the Services, and are hereinafter referred to individually
-7-
and collectively as "Billable Additional Services"). Client shall pay
freight charges for all materials shipped hereunder between WWT and
Client's site.4.3 Out-of-Pocket Expenses
Unless otherwise provided herein, Client shall pay WWT or
reimburse WWT for any out-of-pocket expenses incurred by WWT in
the fulfillment of its obligations under this Agreement, which include
but are not limited to round trip airfare, lodging, meals, local
transportation, communications, round trip travel expenses to WWT's
principal place of business every week, round trip travel expenses from
Client's site to the homes of applicable WWT employees or
representatives each and every weekend, and other incidentals.
4.4 Payment
Client shall pay WWT in accordance with the Fee and Payment
Schedule set forth in Schedule C hereto. Any sum due WWT hereunder
for which a time for payment is not otherwise specified will be due and
payable within ___________ (_____) days after the date of an invoice
therefor from WWT. If Client fails to pay any amount due within
___________ (_____) days from the date of the invoice, late charges of
the lesser of ___________ percent (_____%) per month or the
maximum allowable under applicable law shall also become payable by
Client to WWT. In addition, failure of Client to fully pay any invoiced
amount within ___________ (_____) days after the date of the invoice,
or when payment is otherwise due hereunder, shall be deemed a
material breach of this Agreement, justifying suspension of the
performance of the Services, and shall be sufficient cause for immediate
termination of this Agreement by WWT. If Client fails to pay, when
due, any amount payable hereunder or fails to fully perform its
obligations hereunder, Client agrees to pay, in addition to any amount
past due, plus interest accrued thereon, all reasonable expenses incurred
by WWT in enforcing this Agreement, including, but not limited to, all
expenses of any legal proceeding related thereto and all reasonable
attorneys' fees incurred in connection therewith. No failure by WWT to
request any such payment or to demand any such performance shall be
deemed a waiver by WWT of Client's obligations hereunder or a waiver
of WWT's right to terminate this Agreement.
4.5 Taxes
-8-
Client shall, in addition to the payments required hereunder, pay all
applicable sales, use, transfer or other taxes and all duties, whether
international, national, state or local, however designated, which are
levied or imposed by reason of the transaction(s) contemplated hereby,
excluding, however, income taxes on net profits which may be levied
against WWT. Client shall reimburse WWT for the amount of any such
taxes or duties paid or accrued directly by WWT as a result of this
transaction.
5. Warranties
5.1 Client Representations and Warranties
Client represents and warrants as follows:
(a) Client has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly
executed and delivered by Client and constitutes the valid and
binding agreement of Client, enforceable against Client in
accordance with its terms.
(b) Client further represents and agrees that to the extent its failure to
meet its obligations set forth in this Agreement affects the ability
of WWT to perform WWT's obligations under this Agreement,
including, but not limited to, the Services, WWT shall be relieved
of such obligations.
5.2 WWT Warranties
WWT represents and warrants that, at the time the Services are
rendered, such Services shall be performed in a workmanlike manner
and in accordance with the specifications and description of such
Services as set forth in Schedule A hereto. Without limitation, the
warranty set forth in this Paragraph shall expire ___________ (______)
days after the Services are rendered by WWT and shall not apply to the
extent the Services rendered by WWT are affected by any of the
following: (i) unauthorized actions of the Client personnel; (ii)
unauthorized actions of third parties; (iii) failure of software and
equipment not administered by WWT; (iv) modification of the Work
Product by the Client or third party; (v) damage or malfunction of
hardware caused by the Client or third party; (vi) damage or
malfunction of software caused by the Client or third party; (vii) the
-9-
force majeure conditions set forth in Paragraph 9.5 of this Agreement;
or (viii) failure of Client to perform any of the tasks, provide any of the
resources, or meet any of the obligations set forth or described in
Schedule B hereto.5.3 Disclaimer of Warranty
THE WARRANTY SET FORTH IN PARAGRAPH 5.2 IS A
LIMITED WARRANTY AND IT IS THE ONLY WARRANTY
MADE BY WWT. WWT EXPRESSLY DISCLAIMS, AND CLIENT
HEREBY EXPRESSLY WAIVES, ALL OTHER EXPRESS
WARRANTIES AND ALL DUTIES, OBLIGATIONS AND
WARRANTIES IMPLIED IN LAW, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. WWT DOES NOT
WARRANT AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS THAT THE SERVICES OR THE WORK
PRODUCT WILL MEET CLIENT'S REQUIREMENTS OR THAT
THE OPERATION OR USE OF THE WORK PRODUCT, IF ANY,
WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT
DEFECTS IN THE WORK PRODUCT, IF ANY, WILL BE
CORRECTED. WWT'S LIMITED WARRANTY IS IN LIEU OF ALL
LIABILITIES OR OBLIGATIONS OF WWT ARISING OUT OF OR
IN CONNECTION WITH THE DELIVERY, USE OR
PERFORMANCE OF THE SERVICES AND THE WORK
PRODUCT. THE PARTIES AGREE THAT THE WORK
PRODUCT'S FAILURE TO PERFORM IN ACCORDANCE WITH
APPLICABLE SPECIFICATIONS SHALL NOT BE CONSIDERED
A FAILURE OF THE ESSENTIAL PURPOSE OF THE REMEDIES
CONTAINED HEREIN. EXCEPT FOR THE ABOVE LIMITED
WARRANTY, THE ENTIRE RISK AS TO THE QUALITY AND
PERFORMANCE OF THE SERVICES AND/OR THE WORK
PRODUCT IS WITH THE CLIENT. WWT MAKES NO
WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED,
AS TO THE QUALITY, CAPABILITIES, OPERATIONS,
PERFORMANCE OR SUITABILITY OF ANY SOFTWARE,
INCLUDING, WITHOUT LIMITATION, THE WORK PRODUCT.
ANY SOFTWARE PROVIDED TO CLIENT BY WWT OR WWT'S
SUPPLIERS OTHER THAN THE WORK PRODUCT IS
EXPRESSLY PROVIDED UNDER THE TERMS AND
CONDITIONS OF WWT'S STANDARD SOFTWARE LICENSE
AGREEMENT, A COPY OF WHICH IS ANNEXED AS EXHIBIT A
-10-
HERETO. THE WORK PRODUCT IS EXPRESSLY PROVIDED "AS
IS." WWT MAKES NO WARRANTIES OR REPRESENTATIONS,
EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES,
OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY
EQUIPMENT OR HARDWARE. ANY EQUIPMENT OR
HARDWARE PROVIDED TO CLIENT BY WWT OR WWT'S
SUPPLIERS IS EXPRESSLY PROVIDED UNDER THE TERMS OF
WWT'S PURCHASE AGREEMENT STANDARD TERMS AND
CONDITIONS, A COPY OF WHICH IS ANNEXED AS EXHIBIT B
HERETO.6. Limitation of Liability
WWT SHALL HAVE NO LIABILITY WITH RESPECT TO ITS
OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE
FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT,
INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY
EVENT, THE AGGREGATE LIABILITY OF WWT FOR ANY
REASON AND UPON ANY CAUSE OF ACTION OR CLAIM,
INCLUDING WWT'S OBLIGATION TO INDEMNIFY AND HOLD
HARMLESS, UNDER THIS AGREEMENT, SHALL BE LIMITED
TO: (i) THE NON-TERM SERVICE FEES PAID TO WWT BY
CLIENT FOR THE CONSULTING SERVICES IF THE CAUSE OF
ACTION OR CLAIM ARISES OUT OF OR RELATES TO THE
CONSULTING SERVICES; OR (ii) THE NON-TERM SERVICE
FEES PAID TO WWT BY CLIENT FOR THE INSTALLATION
SERVICES IF THE CAUSE OF ACTION OR CLAIM ARISES OUT
OF OR RELATES TO THE INSTALLATION SERVICES; OR (iii)
THE ADMINISTRATIVE SERVICE FEES PAID TO WWT BY
CLIENT FOR THE ADMINISTRATIVE SERVICES
CORRESPONDING TO THE INITIAL TERM OR THE RENEWAL
PERIOD DURING WHICH THE CAUSE OF ACTION OR CLAIM
ACCRUED IF THE CAUSE OF ACTION OR CLAIM ARISES OUT
OF OR RELATES TO THE ADMINISTRATIVE SERVICES; OR (iv)
THE LESSER OF (i), (ii) OR (iii) OF THIS PARAGRAPH IF THE
CAUSE OF ACTION OR CLAIM ARISES OUT OF OR RELATES
TO TWO OR MORE OF THE TYPES OF SERVICES SET FORTH
OR DESCRIBED IN SCHEDULE A HERETO AND WHICH ARE
RENDERED TO CLIENT BY WWT HEREUNDER. THIS
LIMITATION APPLIES TO ALL CAUSES OF ACTION OR
CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT
-11-
LIMITATION, BREACH OF CONTRACT, BREACH OF
WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY,
MISREPRESENTATIONS, CLAIMS FOR FAILURE TO EXERCISE
DUE CARE IN THE PERFORMANCE OF THE SERVICES
HEREUNDER AND OTHER TORTS. BOTH PARTIES
UNDERSTAND AND AGREE THAT THE REMEDIES,
EXCLUSIONS AND LIMITATIONS HEREIN ALLOCATE THE
RISKS OF PRODUCT AND SERVICE NONCONFORMITY
BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM
COMMERCIAL CODE AND/OR OTHER APPLICABLE LAWS.
THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE
UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF
CONSEQUENTIAL DAMAGES AND LIMITATIONS OF
LIABILITY SET FORTH IN THIS AGREEMENT.7. Indemnification
7.1 Indemnification of Client
(a) WWT shall indemnify and hold Client harmless from any claims and suits for patent or copyright infringement asserted or brought
against the Client wherein the Work Product is alleged to infringe
a patent or copyright, or wherein its normal use or its use as
recommended by WWT to the Client is alleged to constitute the
infringement. No indemnity is provided against any claim or suit
for patent or copyright infringement wherein any Work Product is
only an element in a combination with other products not
furnished by WWT and wherein the combination is alleged to
constitute the infringement. Further, no indemnity is provided
wherein the Work Product is used in other than its normal way or
in a way not recommended by WWT or in a process wherein the
Work Product performs less than all of the steps of the process
and the process is alleged to constitute the infringement.
(b) If any Work Product which is subject to this indemnity is claimed, alleged or determined to infringe a patent issued to, or a
copyright registered by, or either owned by or licensed to any
third party, WWT shall have the right and option to modify that
Work Product to avoid such infringement. If, in WWT's sole
option, such modification cannot practicably be accomplished to
avoid such infringement, WWT shall have the right to terminate
the Agreement without liability on the part of WWT to Client. In
such event, WWT will agree to accept return of the Work Product
by Client and to refund to Client the full price paid for the Work
-12-
Product less an amount for depreciation of the Work Product,
such depreciation to be calculated on a straight line basis over
_______ (______) years.
(c) Client shall promptly notify WWT in writing of any third party claim or suit alleging any patent or copyright infringement for
which WWT is alleged to provide indemnification. In such event,
WWT shall have the right in its sole discretion to elect to defend
against or to settle any such claim or suit. Client shall, at WWT's
request but at WWT's expense, cooperate with WWT and provide
assistance and information with respect to any claim of patent or
copyright infringement. WWT shall have the right to select
counsel, at WWT's expense, to defend any lawsuit for patent or
copyright infringement. If Client shall also elect to be represented
by its chosen counsel, Client shall pay the fees and expense of
such counsel. WWT shall pay the full amount of any other
expense of defense and also pay any damages, and/or costs
awarded against the Client up to the full amount the Client paid
WWT for the involved Work Product. Nothing herein, express or
implied, shall be interpreted or construed to create any obligation
on WWT to pay to Client, or others, any damages, consequential
or otherwise, other than those set forth above.
(d) The indemnities set forth in Section 7.1 hereof will not apply to the extent Client was responsible for giving rise to the matter
upon which the claim for indemnification is based and will not
apply unless Client promptly notifies WWT of any matters in
respect of which the indemnity may apply and of which Client
has knowledge or reason to know and gives WWT full
opportunity to control the response thereto and the defense
thereof, including without limitation, any agreement relating to
the settlement thereof. Client's failure to promptly give notice
shall affect WWT's obligation to indemnify Client to the extent
WWT's rights are materially prejudiced by such failure.
7.2 Indemnification of WWT
(a) Client agrees to indemnify, defend and hold WWT harmless from any and all claims, actions, damages, liabilities, costs and
expenses, including reasonable attorneys' fees and expenses,
arising out of any third-party claims of infringement of any
patents, trade secrets, copyrights, trademarks, service marks, trade
names or similar proprietary rights alleged to have occurred
related to property provided to WWT by Client or activities
-13-
undertaken by the Client, including access to or use of Client
Data or other software or hardware provided to WWT by Client.
For purposes of this Section 7.2, the term WWT shall include
WWT, its partners, principals, employees and agents.8. Term and Termination8.1 Term
The Administrative Services under this Agreement shall commence
on the Effective Date or such other later date as the parties may agree
upon and shall continue for a period of ___________ (______) months
(the "Initial Term"). Thereafter, the Administrative Services provided
hereunder shall be automatically renewed for a period of ___________
(___) year(s) (individually, a "Renewal Period") without further notice
unless (i) this Agreement is terminated in accordance with its
provisions; (ii) WWT notifies Client in writing at least ___________
(______) days before the commencement of the Renewal Period of the
impending renewal and any changes in the terms and conditions
(including the fees) of this Agreement, as it applies to the
Administrative Services, for the Renewal Period, and Client notifies
WWT in writing at least ___________ (______) days before the
commencement of the Renewal Period of its intent not to renew the
Administrative Services; or (iii) WWT mails to Client at least
___________ (______) days prior to the commencement of a Renewal
Period written notice of WWT's intent to terminate the Administrative
Services without cause, in which case the Administrative services shall
automatically terminate at the end of the Initial Term or the then-current
Renewal Period.
8.2 Termination
In addition to the express rights of WWT to terminate this Agreement
set forth herein, WWT shall also have the right to terminate this
Agreement immediately and cancel any unfilled portion of it by written
notice to Client: (i) if Client becomes bankrupt or insolvent or enters
into any arrangement or composition with its creditors or if a receiver is
appointed to direct the business of Client, or (ii) if Client sells or assigns
or attempts to sell or assign 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, or (iii) upon Client's breach of the License or confidentiality
and nondisclosure provisions contained herein, or (iv) upon a violation
-14-
of WWT's proprietary rights hereunder. WWT shall have the right to
terminate this Agreement upon any breach of any other material
provision of this Agreement by Client, its officers, directors, partners,
employees or agents of any provision of this Agreement, including, but
not limited to nonpayment, and provided Client has not cured such
breach within ___________ (______) days after receipt of notice of
such breach, or upon ___________ (_____) days written notice to
Client upon termination of the business of Client. The termination of
this Agreement shall automatically, and without further action by
WWT, terminate and extinguish the License to the Work Product.
Within ___________ (_____) days after the termination of this
Agreement, Client shall return all diskette copies of the WWT
Proprietary Materials to WWT, erase all other copies of the Work
Product, if any, from all other storage media in its possession, and
certify the completion of such steps in writing to WWT.
Notwithstanding the foregoing, all provisions hereof relating to WWT's
proprietary rights, confidentiality, nondisclosure and nonsolicitation
shall survive the termination or expiration of this Agreement. If WWT
terminates the Agreement as provided in this paragraph, WWT may,
without limiting or waiving any other remedies available to it, offset in
whole or in part its resulting damages by retaining the corresponding
amount of fees previously paid to WWT by Client.9. Miscellaneous
9.1 Hiring of Employees
Both parties agree not to engage in any attempt to hire, or to engage
as independent contractors, the other's employees or independent
contractors for the period ending ___________ (_____) years after the
expiration or earlier termination of this Agreement, except as may be
otherwise agreed to in writing by both parties.
9.2 Independent Contractor
WWT and any and all WWT personnel, in performance of this
Agreement, are acting as independent contractors and not employees or
agents of Client. WWT shall be solely responsible for the payment of
compensation of WWT personnel assigned to perform services
hereunder and such personnel are not entitled to the provisions of any
Client employee benefits. Client shall not be responsible for payment of
worker's compensation, disability benefits and unemployment insurance
-15-
or for withholding and paying employment taxes for all WWT
personnel, but such responsibility shall be that of WWT.9.3 Entire Agreement
This Agreement, including all attachments, Exhibits and/or Schedules
hereto, evidences the complete understanding and agreement of the
parties with respect to the subject matter hereof and supersedes and
merges all previous proposals of sale, communications, representations,
understandings and agreements, whether oral or written, between the
parties with respect to the subject matter hereof. This Agreement may
not be modified except by a writing subscribed to by authorized
representatives of both parties.
9.4 Amendments
No amendment, change, waiver, or discharge hereof shall be valid
unless in writing and signed by an authorized representative of each of
the parties.
9.5 Force Majeure
Neither party shall be liable to the other for any delay or failure to
perform any of the services or obligations set forth in this Agreement
due to causes beyond its reasonable control, including, without
limitation, acts of God, natural or human-caused disasters such as flood
and fire, civil disturbances, labor disputes, compliance with
governmental regulations or other authority, or the inability of freight
forwarders or carriers to complete shipments in accordance with WWT
instructions. Performance times shall be considered extended for a
period of time equivalent to the time lost because of such delay.
Without limiting the foregoing, WWT's time of performance shall be
enlarged, if and to the extent reasonably necessary, in the event that: (a)
Client fails to provide (i) Client Data as requested by WWT on a timely
basis or (ii) any performance called for by this Agreement, and the same
is necessary for WWT's performance hereunder; or (b) special requests
by Client or any governmental agency authorized to regulate or
supervise Client or any authority having jurisdiction over Client impact
WWT's normal schedule. WWT will notify Client of the estimated
impact on its performance schedule, if any.
9.6 Governing Law
-16-
This Agreement and performance hereunder shall be governed by the
laws of the State of New York without giving effect to principles of
conflict of laws of such state or international treaties. WWT and Client
hereby agree on behalf of themselves and any person claiming by or
through them that the sole jurisdiction and venue for any litigation
arising from or relating to this Agreement shall be an appropriate
federal or state court located in New York County, New York.
9.7 Assignment
Client shall not assign Client's 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, by operation of law
or otherwise, without the prior written consent of WWT. Such consent
shall not be unreasonably withheld. Any attempt to do so shall be
deemed a material breach of this Agreement. WWT may assign this
Agreement. This Agreement shall apply to, inure to the benefit of, and
be binding upon the parties hereto and upon their permitted successors
in interest and permitted assigns. Nothing in this Agreement shall be
construed as preventing WWT from contracting with any third party to
fulfill any of WWT's obligations hereunder.
9.8 Notices
Any notice provided pursuant to this Agreement, if specified to be in
writing, shall be in writing and shall be deemed given (i) if by hand
delivery, upon receipt thereof, (ii) if mailed, ______________ (_____)
days after deposit in the United States mails, postage prepaid, certified
mail return receipt requested, or (iii) if by next day delivery service,
upon such delivery. All notices shall be sent to the addresses set forth
above.
9.9 No Waiver
The waiver or 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.
9.10 Severability
If for any reason a court of competent jurisdiction finds any provision
of this Agreement, or portion thereof, to be unenforceable, that
provision shall be enforced to the maximum extent permissible so as to
-17-
effect the intent of the parties, and the remainder of this Agreement
shall continue in full force and effect.9.11 Counterparts
This Agreement may be executed in several counterparts, all of
which taken together shall constitute one single agreement between the
parties hereto.
9.12 Headings
The headings of the sections of this Agreement are inserted for
convenience only and shall not constitute a part hereof or affect in any
way the meaning or interpretation of this Agreement.
9.13 Services for Others
Client understands and agrees that WWT may perform similar
services for third parties using the WWT Proprietary Materials and the
Work Product and/or using the same personnel, that WWT may utilize
for rendering Services to Client hereunder.
9.14 Approvals and Similar Actions
Where agreement, approval, acceptance, consent or similar action by
either party hereto is required by any provision of this Agreement, such
action shall not be unreasonably delayed or withheld.
9.15 Survival
All provisions of this Agreement relating to confidentiality,
nondisclosure, limitation of liability, indemnification, nonsolicitation
and Client's obligations to pay WWT for services rendered and
expenses incurred, shall survive the completion of the Services or any
termination or expiration of this Agreement.
9.16 Client Identification
Upon the written consent of Client, which shall not be unreasonably
withheld, WWT may use the name of and identify Client as a Client, in
advertising, publicity, or similar materials distributed to prospective
Clients.
-18-
9.17 Remedies
Unless otherwise specified herein, the rights and remedies of both
parties set forth in this Agreement are not exclusive and are in addition
to any other rights and remedies available to it at law or in equity.
9.18 Limitation of Actions
No action, regardless of form, arising out of or relating to this
Agreement or the subject matter hereof may be brought by either party
more than ______________ (_____) years after the cause of action has
initially arisen, with the exception of either party's breach of its
confidentiality or nondisclosure obligations herein or Client's violation
of WWT's proprietary rights in the WWT Proprietary Materials. IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their duly authorized representatives as of the date first
written above.
MAJOR CONSUMER PRODUCTS, WORLD WIDE
INC. TECHNOLOGY CORP
By:_______________________ By:____________________ (Signature) (Signature)
Name:____________________ Name:__________________
Title:_____________________ Title:___________________
