3.38 Retail Web Site Development and Services Agreement
RETAIL WEB SITE SERVICE AGREEMENT (the "Agreement"), made as of this ____ day of
____, 20 ___ (the "Effective Date") between Web Wares Worldwide, Inc., a New
York corporation having its principal place of business as 1234 Avenue of the
Americas, New York, New York 10036 ("Client"), and Global Virtual Designs, Inc.,
a Delaware corporation having its principal place of business at 2131 Broadway,
New York, New York 10023 ("Consultant") (Client and Consultant are hereinafter
collectively referred to as the "parties").
WHEREAS, Client wishes to establish a site on the World Wide Web portion of the
Internet (the "Site") to make available certain materials;
WHEREAS, Client wishes to fulfill customer orders for certain products (the
"Products") placed by means of the Site;
WHEREAS, Consultant is in the business of creating and operating sites on the
World Wide Web and wishes to design, develop, implement, host, support and
maintain the Site, for Client on the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, Client and Consultant agree as follows:
1. Definitions
The following terms shall have the meanings set forth herein:1.1. Client Content
All materials provided by Client to Consultant hereunder, including
without limitation the Product Catalog and any other, graphics, audio, or other
materials in electronic form. Client Content shall include (i) any materials
derived by Consultant from any materials provided by Client, including through
the conversion of materials to a format ready for display on the Site and (ii)
Site Activity Data.
1.2. Confidential Information
Any information relating to or collected in the course of the Agreement
including, but not limited to, the material terms of this Agreement, technical
processes and formulas, source code, product designs, sales, cost and other
unpublished financial information; product and business plans, projections,
customer lists, Site Activity Data, business relationships with other entities,
marketing data, and all information regarding transactions and communications
received by means of the Site. Confidential Information does not include
information that: (i) on the Effective Date of this Agreement was already known
to the receiving party or available to the public; or (ii) after the Effective
Date of this Agreement becomes known to the receiving Party or to the public
other than by disclosure by another party to this Agreement; or (iii) was or is
developed by the receiving Party independently without any use of any of the
disclosing Party's Confidential Information.
1.3. Consultant Software
All software owned by Consultant at the time this Agreement is executed
(except for software developed or obtained in anticipation of executing this
Agreement), and which is employed by Consultant in connection with design,
development, implementation, hosting, support and maintenance of the Site.1.4. Deliverables
The software, services and other materials to be provided to Client by
Consultant hereunder.
1.5. Error
Any failure of the Site, the Host Service, or any Software Deliverable to
operate in accordance with its specifications or the terms and conditions of
this Agreement.
1.6. Host Server
The server on which the Site is made available, in a live environment, to
users. The Host Server shall comply with the performance specifications set
forth in Schedule B.
1.7. Net Client Advertising Revenue
The amounts actually collected by Client arising from the sale of
advertising on the Site, excluding amounts collected and remitted for sales or
use taxes or duties and credits or refunds.
1.8. Net Product Revenue
The amounts actually collected by Client derived directly from the sale of
Products through the Site, excluding (i) amounts collected for sales, use taxes
or duties; (ii) all applicable discounts, returns, and credits; and (iii) the
Processing Fees associated with the relevant orders.
1.9. Processing Fee
A fee to be determined by Client to be assessed to purchasers of Products
over the Site to cover the cost of packaging, shipping, handling, and insuring Products.
1.10. Production Schedule
The production schedule provided by Consultant in accordance with Section
2.2 hereunder.
1.11. Product Catalog
The complete database of all Products provided by Client to Consultant, as
updated by Client from time to time, which database shall be fully integrated by
Consultant into the Site.
1.12. Products
Any merchandise made available for sale by Client through the Site.
1.13. Proposal
The documents attached as Schedule C hereto. The Proposal is intended to
constitute a material part of this Agreement. In the event of a conflict between
the Proposal and any other terms and conditions of this Agreement, the terms and
conditions of the Agreement will prevail.
1.14. Site Activity Data
Any information pertaining to individuals accessing the Site, including
information related to orders placed through the Site and information about
users obtained through technological means.
1.15. Software Deliverables
All Deliverables containing software components.
1.16. Term
The time period for which this Agreement shall be in effect, commencing on
the Effective Date hereof and ending ____ (____) years from the date the Site is
fully operational and accessible to users over the Internet (the "Launch Date"),
unless during that time (i) the Parties execute a writing renewing this
Agreement pursuant to Section 13.5 hereof, or (ii) this Agreement is terminated
pursuant to Section 13.1, 13.2, or 13.3 hereof.
1.17. Updates
Bug fixes or error corrections to the Software Deliverables during the
Term, and any other modifications made by Consultant to the Software Deliverables.
2. Services
2.1. Services Performed by Consultant
Consultant shall perform the Services outlined in this Article 2 and as
otherwise subsequently agreed to in writing between the Parties (collectively,
the "Services") in accordance with the Production Schedule. All Services shall
be performed under the highest professional standards, and all software used in
the Site shall be based on open standard technologies. Each Deliverable rendered
hereunder will be subject to Client's acceptance pursuant to the procedure set
forth in Article 3.
2.2. Production Schedule
Consultant shall deliver a proposed Production Schedule within _____
(____) business days of the Effective Date hereof. If Consultant fails to timely
deliver an acceptable Production Schedule, Client shall have the right to
terminate this Agreement pursuant to Section 13.3 hereof. Notwithstanding the
foregoing, Consultant shall not be responsible for any delays caused directly by
Client's failure to perform its obligations hereunder in a timely manner.
2.3. Consultant Deliverables
Upon Client's acceptance of the Production Schedule, Consultant shall
develop and deliver all other Deliverables identified in this Agreement,
including Schedule A hereto in accordance with the Production Schedule, each
Deliverable being subject separately to the acceptance procedure set forth in
Article 3.2.4. Beta Testing
Within _____ (____) business days of Client's acceptance of all of the
Deliverables, Consultant will make the complete Site available on a Host Server
provided by Consultant for testing over the Internet by Client (the "Beta
Test"). The Beta Test will be conducted pursuant to a procedure agreed upon by
both parties, and Consultant shall demonstrate to the sole satisfaction of
Client that the Site was designed and can be operated in accordance with the
terms and conditions of this Agreement.
2.5. Hosting Services
Consultant shall operate and maintain the Site and the Host Server during
the Term. Consultant shall provide all computer and telecommunications equipment
and resources, including, without limitation, the hardware, server and ancillary
software, communications lines, firewalls, and support services as specified in
Schedule B hereto, and any other resources necessary for the Site to operate as
contemplated by the performance specifications set forth in Schedule B hereto.
2.6. Modifications to the Site
From time to time during the Term, Consultant shall modify the Site as
Client directs, including without limitation the creation of and uploading to
the Host Server additional graphical, textual, audiovisual, or database
elements. Without limitation of any other provision of this Agreement, Client
shall have the right to direct Consultant to remove from the Site any content or
links which Client determines is in violation of this Agreement or to be
otherwise objectionable to Client.
2.7. Approval Required for Modifications
Consultant shall not alter, edit, or make any change in the Client Content
without Client's prior written approval.
2.8. Training
Consultant shall provide Client with all software and information
necessary for Client to update the Product Catalog or any other component of the
Site, without Consultant's participation. Consultant will train the Client
personnel designated by Client to use all functions of the Site. Such training
shall consist of at least _____ (____) consecutive business days of training
provided at a location designated by Client.
2.9. Technical Support
Consultant shall render technical support by telephone and e-mail, at no
extra charge to Client, at Client's reasonable request. Consultant shall respond
to Client within _____ (____) hour(s) of notification of any Error by telephone.
Consultant shall take all responsible steps to supply a work-around or
correction to such Error as soon as possible. In the event that the Error
significantly interferes with the operation of the Site, as reasonably
determined by Client, Consultant shall apply all necessary resources to resolve
such Error within _____ (____) hours of notification. Consultant shall correct
all other Errors within _____ (____) business days of notification of such Errors.2.10. Backup Archives
All Site Activity Data shall be transmitted fully and completely on a
daily basis (no later than ____ p.m. (Eastern Time)) every day of the year to an
e-mail address designated by Client. The Site shall be designed with the ability
for Site Activity Data to be transmitted to Client on a real-time basis. At no
extra charge to Client, Consultant shall maintain backup archives in the format
specified by Client of all Site Activity Data. Consultant shall forward the
backup archives to Client in the form requested by Client at the end of each
____-day (____-day) period during the Term.
2.11. Updates
During the Term, at no additional cost to Client, Consultant shall provide
Updates for the Software Deliverables. Client shall have the right to review
such Updates prior to Consultant's incorporation of such Updates into the Site,
and Client shall have the right to reject incorporation of any Update into the Site.
2.12. Advertising
(a) During the Term, both parties shall have the right to sell
advertising on the Site. Promptly upon execution of this Agreement, the parties
shall confer to determine a mutually acceptable price list and technical and
design formats for advertising. Advertising rates and advertising design
specifications may be modified during the Term, upon the mutual written
agreement of the Parties.
(b) Without limitation of Section 3.3 hereof, each party shall
obtain the other's written approval prior to committing to any advertiser with
respect to the suitability of hosting the particular advertising on the Site and
the artistic and editorial content of the advertisement. Notwith-standing the
foregoing, all agreements for the sale of advertising on the Site will be
between Client and the advertiser in a form acceptable to Client (including,
without limitation, a provision stating that all advertising fees will be
payable to Client).
(c) Consultant agrees that it will (i) cooperate fully with any
entity selected by Client to produce, design, or develop such advertising in
implementing technology to place advertising on the Site; and (ii) cooperate
with Client in implementing technology to place advertising on the Site.
2.13. Domain Name
The Site shall be associated with a domain name chosen by Client and
registered in Client's name by Consultant with Network Solutions, Inc., All
right, title and interest in the domain name for the Site shall vest exclusively
in Client.
3. Acceptance Testing of Deliverables
3.1. Testing of Deliverables
Upon the completion of any Deliverable hereunder, and upon determination
by Consultant that the particular Deliverable satisfies all requirements herein,
Consultant shall deliver to Client _____ (____) copies of such Deliverables.
Client shall have the acceptance period specified for each Deliverable in the
Production Schedule to evaluate the Deliverable. At the end of such acceptance
test period, Client shall provide written notice of: (i) acceptance of such
Deliverable; or (ii) rejection of such Deliverable, specifying the basis
thereof. In the event Client fails to provide such notice within the time period
set out in the Production Schedule, the Deliverable will be deemed to be
rejected, and Client shall provide the basis for such rejection as promptly
thereafter as practicable.
3.2. Rejection of Deliverables
If Client rejects a Deliverable, Consultant will have the Acceptance
Period specified in the Production Schedule for the particular Deliverable to
implement any corrections, amendments or other changes necessary to resolve
Client's objections to such Deliverable. Upon implementation of such changes,
Consultant shall redeliver such Deliverable to Client for acceptance pursuant to
this Article 3, the procedure set forth herein to be repeated until either the
Deliverable is accepted or Client terminates the Agreement pursuant to Section
13.3 hereof.
3.3 Right of Artistic and Editorial Control
Client shall have exclusive artistic and editorial control over the Site,
including, without limitation, the implementation of the Client Content on the
Site and the design and look and feel of the Site.
4. Payments
4.1. Commissions
In consideration of the Services rendered to Client by Consultant
hereunder, on a quarterly basis Client shall pay Consultant: (i) ____ percent
(___%) of Net Product Revenue received during each quarter during the Term, less
a reserve against returns of ___ percent (___%) of Net Product Revenue for the
quarter; and (ii) ___ percent (___%) of Net Client Advertising Revenue received
during each quarter during the Term.
4.2. Sales Reports and Payments by Client
Commencing on the Effective Date of this Agreement and within _____ (____)
days after each calendar quarter during the Term, Client shall send to
Consultant sales reports, and other financial reports and payments, as set forth
in Schedule D attached hereto.
4.3. Taxes
Client shall be the seller of all Products purchased through the Site and
will be responsible for any taxes associated with its income form the sale of
Products through the Site.
5. Audit
Client shall maintain clear and complete books and records relating to the
calculation of Net Product Revenue. Consultant, acting through a Certified
Public Accountant, shall have the right, at reasonable time and on reasonable
notice, to audit the books and records of Client at Client's offices for the
sole purpose of verifying commissions paid under this Agreement. Consultant
shall have the right to perform such audit _____ (____) times per year during
the Term, and any audit hereunder shall be conducted so as to minimize
interruption to Client's business functions.
6. Proprietary Rights6.1. Grant of License by Client
As between Client and Consultant, Client shall own all right, title and
interest in and to the Client Content. Client hereby grants to Consultant a non-
exclusive, non-transferable, limited license, revocable at will by Client, to
use the Client Content under the terms and conditions of this Agreement solely
in connection with the establishment of the Site. Consultant may only make such
copies of the Client Content as may be necessary to perform its obligations
under this Agreement. Except for the limited license set forth in this Section
6.1, Client expressly reserves all other rights in and to the Client Content and
Product Catalog.
6.2. Proprietary Notice
Consultant shall cause the following notices (or any other notices as
instructed by Client) to be displayed on each page of the Site on which Client
Content is viewed:
(a) "Copyright (or (c)) 20 ___ [relevant year] Web Wares Worldwide,
Inc. All Rights Reserved."
(b) "[Client Mark] is a registered trademark [or service mark] of
Web Wares Worldwide, Inc."
6.3. Trademark Usage
Consultant shall not use any Client Content or Client Marks, logos or
other identifiers in any manner other than as is expressly provided for in this
Agreement, or permit any third party to do so, without Client's prior written
approval of the intended use. Consultant shall submit to Client for prior
written approval all proposed uses of the Client Marks, and shall not use the
Client marks without such approval. Client reserves the right to review any
approved use of the Client Marks and to require changes in such further use, and
Consultant agrees to comply with any such requirements. Without limitation of
the foregoing, Consultant and its employees, agents and representatives will
not, without prior written consent in each instance, use in advertising,
publicity or any other promotional endeavor any Client Mark, the name of Client
or any Client affiliate, or any officer or employee of Client, or represent,
directly or indirectly, that any product or service provided by Consultant has
been approved or endorsed by Client.
6.4. Consultant Software
Consultant grants to Client a perpetual, irrevocable, non-exclusive,
royalty free license (or, in the case of third-party software, sublicense) for
Client or its agents or assigns to use, modify, copy, transfer and maintain the
Consultant Software in conjunction with the operation, maintenance, and updating
of the Site. Except as stated herein, as between Client and Consultant,
Consultant retains all right and title in the Consultant Software.6.5. Work Made For Hire
All materials, products, and modifications developed or prepared by
Consultant under this Agreement, including without limitation forms, images and
viewable on the Internet, any HTML elements relating thereto, and software,
including the Deliverables and any Updates thereto, are the property of Client
and all right, title and interest therein shall vest in Client and shall be
deemed to be a "work made for hire" under United States copyright law (17 U.S.C.
¤ 101 et seq.) and made in the course of this Agreement. To the extent that
title to any such works may not, by operation of law, vest in Client or such
works may not be considered to be work made for hire, all right, title and
interest therein are hereby irrevocably assigned to Client. All such materials
shall belong exclusively to Client with Client 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.
Consultant agrees to give Client and any person designated by Client, any
reasonable assistance required to perfect and enforce the rights defined in this
Section 6.5.
6.6. Rights Clearance
Client shall be responsible for obtaining any permissions necessary to
place the Client Content on the Site. Except with respect to the Client Content,
Consultant shall have the full and complete responsibility to obtain any rights,
licenses, clearances, releases or other permissions ("Right Clearances")
necessary for development of the Site as contemplated by this Agreement and to
pay any fees or costs associated therewith. All Rights Clearances obtained
hereunder shall be on a perpetual, irrevocable, royalty-free, transferable basis.
7. Confidentiality
Consultant acknowledges that it (and its subcontractors, if any) shall, in
performing the Services for Client hereunder, have access to or be directly or
indirectly exposed to Client Confidential Information. Consultant shall hold
confidential all Client Confidential Information, including without limitation
Site Activity Data, and shall not disclose or use such Client Confidential
Information without express written consent of Client, or permit any third party
to do so. Consultant shall use reasonable measures and reasonable efforts to
provide protection for Client Confidential Information, including measures at
least as strict as those Consultant uses to protect its own Confidential
Information. Such measures shall include, without limitation, requiring
employees and independent contractors of Consultant to sign a non-disclosure
agreement before obtaining access to the Client Confidential Information.
8. Site Activity Data
Client acknowledges and agrees that Consultant is and shall be the sole owner of
all Site Activity Data. Consultant shall not copy, display, divulge to any third
party or make any other use of the Site Activity Date without Client's express
written consent.
9. Warranties, Representations And Covenants
9.1. By Consultant
Consultant represents, warrants and covenants that: (i) all of the
Services will be rendered using sound, professional practices and in a competent
and professional manner by knowledgeable, trained and qualified personnel; (ii)
the Site will be designed and will operate in conformity with the terms and
conditions of this Agreement; (iii) Consultant 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 Consultant pursuant to this
Agreement are or will be fully satisfied by Consultant, so that Client will not
have any obligations with respect thereto; (v) Consultant is the owner of or
otherwise has the right to use and distribute all materials and methodologies
used in connection with providing the Services hereunder; (vi) the software and
other materials used by Consultant in fulfilling its obligations under this
Agreement (except the Client Content provided by Client) do not now and will not
infringe upon any copyright, patent, trade secret, contract right or other third
party right; (vii) the Site, as designed, will not violate any federal, state,
or local law or regulation; (viii) Consultant shall take all necessary steps to
ensure the security and confidentiality of the Site Activity Data; and (ix)
Consultant shall notify Client immediately of any breach or failure of such
security and shall cooperate fully with Client, at Consultant's expense, in any
investigation or prosecution thereof by Client.
9.2. By Client
Client represents, warrants and covenants that: (i) it has full authority
to enter into this Agreement; and (ii) the Client Content will not infringe upon
any copyright, patent, trademark, trade secret, contract right or other third
party right; and (iii) all obligations owed to third parties with respect to the
activities contemplated to be undertaken by Client pursuant to this Agreement
are or will be fully satisfied by Client so that Consultant will not have any
obligations with respect thereto.
10. Indemnification
Each party hereto shall indemnify, defend, and hold harmless the other party,
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 it is based upon a claim that: (i) if true, would constitute a
breach of any of the indemnifying Party's representations, warranties, or
agreements hereunder; or (ii) arises out of the gross negligence or willful
misconduct of the indemnifying Party. In claiming any indemnification hereunder,
the Party claiming indemnification (the "Claimant") shall provide the other
Party with written notice of any claim which the Claimant believes falls within
the scope of the foregoing sections. The Claimant may, at its own expense,
assist in the defense if it so chooses, provided that the other 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 Claimant
shall not be final without the Claimant's written consent.
11. Insurance
During the Term, Consultant shall procure and maintain at its own expense
insurance, which must be satisfactory to Client, of the following type and in
the following amounts: (i) statutory worker's compensation in accordance with
all Federal, state, and local requirements; (ii) Professional Liability
Insurance with a limit of not less than ___ dollars ($____); (iii) Employer's
Liability Insurance with a limit of not less than ___ dollars ($____); (iv)
Comprehensive General Liability Insurance having the broadest form of coverage
consistent with the highest standards in the industry, with combined single
limits of ____ dollars ($___) per each occurrence as respects personal injury,
including death, and property damage; and (v) Employee Fidelity Bonds with a
limit of ____ dollars ($___) for each employee of Consultant engaged in
providing the Services. Consultant shall furnish to Client certificates of
insurance or other appropriate documentation (including evidence of renewal of
insurance) evidencing all coverage referenced in this Article 11 and naming
Client as an additional insured and an additional loss payee. Such certificates
or other documentation will include a provision whereby _____ (___) days' notice
must be received by Client prior to coverage cancellation or material alteration
of the coverage by either Consultant or the applicable insurer.
12. Limitation of Liability
EXCEPT WITH RESPECT TO LIABILITY ARISING FROM A PARTY'S INDEMNIFICATION
OBLIGATIONS HEREUNDER, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR ABANDONMENT OF
ITS OBLIGATIONS HEREUNDER (THE "EXCEPTIONS"), NEITHER PARTY HERETO SHALL BE
LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES) SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS. IN ANY EVENT, THE LIABILITY OF CLIENT HEREUNDER SHALL
NOT EXCEED THE FEES, IF ANY, DUE AND OWING TO CONSULTANT HEREUNDER.
13. Term, Renewal, and Termination13.1. Termination for Breach
Either Party may terminate this Agreement upon _____ (___) days' written
notice if the other Party materially breaches any of the terms of this
Agreement; provided, however, that this Agreement will not terminate if the non-
terminating party has cured the breach within the _____ (___) day period.
13.2. Termination for Bankruptcy and Similar Events
Either Party may terminate this Agreement, effective immediately upon
written notice, if: (i) all or a substantial portion of the assets of the other
party are transferred to an assignee of the benefit of creditors, to a receiver
or trustee in bankruptcy; (ii) a proceeding is commenced by or against the other
party for relief under bankruptcy or similar laws and such proceeding is not
dismissed within _____ (___) days; or (iii) the other party is adjudged bankrupt
or insolvent.
13.3. Termination During Performance of Services
During the course of Consultant's performance of Services hereunder,
Client shall have the right to terminate this Agreement upon written notice to
Consultant in the event that: (i) Consultant fails to timely deliver an
acceptable Production Schedule; (ii) Client rejects any _____ (___) Deliverables
rendered by Consultant during the course of the Services; or (iii) Client
rejects any one Deliverable _____ (___) times.
13.4. Obligations Upon Termination or Expiration
Upon termination or expiration of this Agreement, Consultant shall
immediately deliver to Client: (i) all copies of Client Confidential
Information, (ii) all records of user information in the possession or control
of Consultant, and (iii) any other material or work product produced hereunder
which is owned by Client.13.5. Renewal
Client shall have the right to renew this Agreement upon not less than
_____ (___) days' written notice to Consultant.
13.6. Transfer of Site
Client shall have the right, at any time, to transfer the hosting and
operation of the Site to its own server or the server of a designated third
party. Upon the request of Client or upon the termination or expiration of this
Agreement, whichever occurs first, Consultant shall, at no additional cost,
provide all necessary assistance to Client and third parties authorized by
Client to transfer the Site or portions thereof to such an alternate server.
Such transition assistance shall include (i) delivery of full and complete
copies of all Deliverables; and (ii) subject to contractual limitations,
assignment of all necessary rights under third party agreements to Client or any
third party (as directed by Client) except for rights under agreements entered
into by Consultant for the license, purchase, or other use of third-party
software for the purpose of developing the Site. Notwithstanding the transition
of this Site during the Term, the provisions of Article 4 shall apply until the
expiration or termination of this Agreement.
13.7. Survival
Upon expiration or termination of this Agreement, the provisions of
Article 1, Articles 6-10 inclusive, Article 12, Section 13.4, this Section 13.7,
and Article 15 shall survive.
14. Time of the Essence
Consultant recognizes that time is of the essence in this Agreement and that the
failure to develop, test and deliver the Deliverables hereunder in accordance
with the Production Schedule shall result in expense and irreparable damage to
Client. Consultant agrees to control any deviation from the Production Schedule
by using best efforts to perform the Services in a timely manner and assigning
all necessary resources to the performance of the Services in such a manner. In
the event Consultant fails to deliver any Deliverable in a form acceptable to
Client within _____ (___) business days after the date such Deliverable was due
(the "____ Day Late Period"), a credit shall accrue in Client's favor in the
amount of _____ dollars ($___) for each day beyond the ____ Day Late Period that
Consultant fails to deliver an acceptable Deliverable. Such credit shall be used
to offset fees payable to Consultant pursuant to Article 4 thereof.
15. General
15.1. Independent Contractors
Consultant and Client agree that they will be independent contractors.
Neither party will be an agent, representative, or partner of the other party.
Neither party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other party provided that nothing in this subsection shall
be construed to limit the ability of Consultant to secure contractual
commitments from third parties to buy or license Advertising. This Agreement
shall not be interpreted or construed to create an association, joint venture or
partnership between the parties or to impose any partnership obligation or
liability upon either party.15.2. 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 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 to Client shall be sent to the attention of Client's General
Counsel or such other person(s) as Client may from time to time designate.
Notices to Consultant shall be sent to the attention of the Chief Executive
Officer or such other person(s) as Consultant may from time to time designate.
Notices shall be sent to the addresses listed above, unless a Party changes its
address by notice given pursuant to this Section 15.2.
15.3. Waiver
Consultant and Client agree that the failure of either Party to insist
upon or enforce strict performance by the other party of any provision of this
Agreement or to exercise any right under this Agreement shall not be construed
as a waiver or relinquishment to any extent of such Party's right to assert or
rely upon any such provision or right in that or any other instance; rather, the
same shall be and remain in full force and effect.
15.4. Assignment
Neither Party shall transfer or assign this Agreement or any right,
interest or benefit under this Agreement without the prior written consent of
the other Party, which consent will not be unreasonably withheld or delayed,
provided, however, that Client may assign this Agreement to an affiliate or to a
successor in interest and shall give Consultant notice of such assignment within
_____ (___) days thereof.
15.5. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts entered into and wholly to
be performed in the State of New York. Each Party irrevocably consents to the
exclusive jurisdiction of the courts of the State of New York and the federal
court situated in the State of New York, in connection with any action to
enforce the provisions of this Agreement, to recover damages or other relief for
breach or default under this Agreement, or otherwise arising under or by reason
of this Agreement.
15.6. Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
WEB WARES GLOBAL VIRTUAL
WORLDWIDE, INC. DESIGNS, INC.
By:____________________ By:________________________
Title:_________________ Title:_____________________
Date:__________________ Date:______________________
