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§ 8.28 Form: Client Oriented Web Site Development And Services
Agreement
AGREEMENT (the "Agreement") made as of ______________,
_____ (the "Effective Date") by and between Big Entertainment
Company, Inc., with offices at _______, ("Customer") and Developer,
Inc., with offices at _________________________ ("Developer").
WHEREAS, Customer desires to establish a branded Web site on
the World Wide Web portion of the Internet to promote products and
materials proprietary to Customer;
WHEREAS, Developer is in the business of providing software and
computer consulting services in connection with creating and
operating Web sites on the World Wide Web and desires to design,
develop, implement, operate, maintain and update a Web site for
Customer subject to the terms and conditions set forth in this
Agreement; and
WHEREAS, Customer wishes to retain Developer to design,
develop, implement, operate, maintain and update a Web site for
Customer subject to the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein, Customer and Developer (each a "Party", and
collectively, the "Parties") hereby agree as follows:
1. Services
1.1. Scope of Services
Subject to the terms and conditions of this Agreement, Developer
shall, at no cost to Customer other than as expressly provided herein,
timely perform the services and deliver the materials set forth or
described in this Agreement and on the applicable Exhibits annexed
hereto, and/or as otherwise subsequently agreed to in writing by the
parties (collectively, the "Services"), in order to design, develop,
implement, operate, maintain and update a Customer-branded Web
site on the World Wide Web portion of the Internet (the "Customer
Site") and in order to sell advertising thereon, all in accordance with
the Specifications (as hereinafter defined). Developer acknowledges
and agrees that the Customer Site is to be a stand-alone Web site
which shall not be a subset or subdomain of any other Web site, and as
such, the Customer Site will be accessible by users of the Internet
solely and directly through a URL designated by Customer.
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1.2. Specifications
Developer shall prepare and deliver to Customer specifications for
the Customer Site which shall detail the design, technical and
functional capabilities, look and feel, and other attributes of the
Customer Site (the "Specifications"). The Specifications shall include,
without limitation: (i) Developer's proposal to Customer, as
applicable; (ii) a design for the Customer Site in accordance with the
Guidelines as set forth in Schedule A hereto; (iii) attributes of
performance which the Customer Site will achieve; (iv) deliverables to
be provided by Developer as part of the Services, including, without
limitation, the Customer Site (the "Deliverables"); and (v) design,
development, testing, delivery, implementation, maintenance and
update schedules for the Customer Site and any Deliverables (the
"Delivery Schedule"). Developer represents and warrants that the
Services, the Deliverables and the Customer Site shall conform in all
material respects to the Specifications.
1.3. Conversion of Content
As part of the Services, Developer shall convert, input, digitize or
otherwise format as necessary all content to be included in the
Customer Site pursuant to the Specifications (collectively, the
"Content").
2. Advertising And Promotion2.1 Advertising Sales
Customer shall have the right, in its sole discretion, to sell
advertising, directly and via its licensees and other promotional
partners, to appear on the Customer Site, without consulting with
Developer. Customer shall have the right to retain all revenues and
fees arising from or in connection with such advertising sold by
Customer, its licensees and promotional partners.
2.2 Strategies and Opportunities
Developer shall consult with Customer on a periodic basis
regarding strategies and opportunities for selling advertising on the
Customer Site. Developer shall not approach any potential advertisers
without the prior written consent of Customer, which consent shall not
be unreasonably withheld or delayed. All final decisions concerning
such strategies, opportunities and potential advertisers shall remain
within Customers sole reasonable discretion.
2.3 Advertisements
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All advertising on the Customer Site shall be consistent with the
Customer Site Guidelines (as hereinafter defined). Developer shall
consult with Customer concerning each proposed advertisement, and
Customer must receive Customer's written approval prior to selling or
integrating any advertisement into the Customer Site.
2.4 URL Registration
Developer shall submit and register the Customer Site URL with
Internet search engines, directories, catalog services, indexes and other
Internet search services which are approved in advance in writing by
Customer. Customer reserves the right to review and approve the
entries describing the Customer Site which Developer plans to submit.
2.5 Promotion
Customer will use commercially reasonable efforts to promote the
Customer Site by including a visual reference to the URL for the
Customer Site in event-specific advertising. Promotion of the URL for
the Customer Site may be conducted only under the exclusive control
of Customer.
2.6 Non-disclosure
Developer agrees that it shall not, without the prior written consent
of Customer, disclose, distribute or release to any third party, in any
manner or medium, directly or indirectly or through its
representatives: (i) the Customer Site, or any advertising, publicity or
promotion materials (including without limitation, distribution through
the Internet) related to the Customer Site or which include the name of
Customer or its affiliates or subsidiaries or any trademark, trade name,
or any abbreviation, contraction, or other embodiment thereof; and (ii)
any materials or properties owned, controlled, licensed or otherwise
proprietary to Customer, whether or not such materials are
incorporated into the Customer Site, prior to the "public" release of
such materials.
3. Delivery And Acceptance
3.1 Delivery of Specifications
Developer shall deliver to Customer the Specifications no later than
____________________. If Developer fails to timely deliver the
Specifications, Customer shall have the right to terminate this
Agreement without further obligation to Developer. Upon Customer's
acceptance in writing of the Specifications, the Specifications shall be
annexed hereto as Exhibit 1.
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3.2 Acceptance
Within ___________ days after receipt of each Deliverable and the
Customer Site, or as soon as practicable thereafter, Customer will test
and evaluate Developer's submission (the "Customer Acceptance
Test"). The Customer Acceptance Test shall be developed by
Customer and shall demonstrate to Customer's sole satisfaction that
each Deliverable (including, when applicable, the Customer Site)
conforms to the Specifications and appears and functions in
accordance with Customer's requirements (collectively, with the
Specifications, the "Customer Requirements"). In the event that the
Deliverable meets Customer's Requirements, Customer shall notify
Developer in writing that such Deliverable has passed the Customer
Acceptance Test ("Customer Acceptance"). In the event a Deliverable
fails to pass the Customer Acceptance Test, Customer will advise
Developer in writing as to which aspects of the Deliverable failed.
Developer shall, at no cost to Customer, remedy such failure and
deliver the corrected Deliverable to Customer for review within _____
days following receipt by Developer of notice of the failure.
3.3 Time of the Essence
Developer shall perform the Services, and shall otherwise design,
develop, test, deliver, implement, operate, maintain and update the
Customer Site and any Deliverables, in strict compliance with the
Customer Site Guidelines (as hereinafter defined), the Delivery
Schedule and any milestones contained therein. Time is of the essence
with respect to all aspects of this Agreement and the subject matter
hereof.
4. Continuing Services
4.1 Transfer of Customer Site
Upon Customer Acceptance of the Customer Site, Developer shall
transfer and implement the Customer Site and any corresponding
Deliverables to and on the host Internet server and supporting
environment at the location specified in writing by Customer
(collectively, the "Host Server") in conformance with the Delivery
Schedule. The Customer Site will be hosted on the Host Server or as
otherwise specified by Customer (the "Hosting Service Provider").
Developer shall work in conjunction with the Hosting Service
Provider in connection with the transfer of the Customer Site to the
Host Server, provided that Developer shall have ultimate
responsibility for effecting the transfer of the Site to the Host Server.
Developer shall promptly inform Customer of any known failure by
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the Hosting Service Provider to assist Developer in effecting such
transfer.4.2 Operation Of The Customer Site
Developer represents and warrants that all Services shall be
performed so that the Customer Site and any Deliverables, when
operated on the Host Server by the Hosting Service Provider, will
function and perform in accordance with the Specifications. Developer
shall, at no cost to Customer or the Hosting Service Provider,
promptly provide any updates, revisions, and replacements necessary
for the Customer Site to function and perform in accordance with the
Specifications when operated on the Host Server by the Hosting
Service Provider. Customer reserves the right to designate an
alternative Host Server and Hosting Service Provider, and such
designation shall not relieve Developer of its obligations under this
Section 4.2. At no cost to Customer, Developer shall fully cooperate
with Customer and the Hosting Service Provider in providing the
Services under this Agreement, including, but not limited to,
implementing the Customer Site on the Host Server and identifying
and correcting any errors in the Customer Site.
4.3 Updates To The Customer Site
Following implementation of the Customer Site, Developer shall
perform weekly updates to the Customer Site and any other updates
reasonably requested by Customer. All such updates shall become part
of the Customer Site and shall be governed by the terms and
conditions of this Agreement.
4.4 Usage Information
Developer shall manage the recordation of and provide to Customer
monthly: (i) all information reflecting access and usage of the
Customer Site, including without limitation, audited and unaudited
hits, visits, click-throughs and impressions; (ii) all available
information about users of the Customer Site consistent with the
Customer Site Guidelines (as hereinafter defined); and (iii)
information directly or indirectly obtained from users accessing the
Customer Site consistent with the Customer Site Guidelines (as
hereinafter defined) (collectively "Usage Information"). Developer
shall adhere to all privacy and data protection laws applicable to the
gathering, processing, storing and transmitting of Usage Information.
Developer shall maintain the strict confidentiality of all Usage
Information.
4.5 Contact Person
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Developer and Customer shall each designate a principal contact
person who shall act as a liaison between Developer and Customer
and who shall have sufficient authority to grant or communicate the
granting of all necessary approvals. Developer shall, upon request by
Customer, remove any Developer employee or agent from the
Developer team rendering the Services, and replace same with
alternative qualified Developer personnel.
4.6 Current Technology
Developer represents and warrants that during the Initial Term and
any Renewal Period (as those terms are hereinafter defined) Developer
shall continually use and integrate the most current and up-to-date
technology commercially available into the Customer Site and any
Deliverables, subject to the prior written approval of Customer.
4.7 Updates Of Customer Site
As part of the Services provided by Developer hereunder, and at no
cost to Customer, Developer shall continually add materials and
subsections to the Customer Site promptly after receiving request(s)
therefor from Customer, in conformance with the Specifications and
the Customer Site Guidelines (as hereinafter defined), which the
Parties may amend from time to time by executing signed writings and
annexing them to the appropriate Exhibit(s) to this Agreement.
5. Computer Software Deliverables5.1 Software License
Developer hereby grants to Customer, its affiliates and subsidiaries,
a worldwide, royalty-free, non-exclusive, enterprise-wide license,
during the Initial Term of this Agreement and any Renewal Period (as
those terms are hereinafter defined) to possess and use all computer
software and development tools contained in, comprising, or
otherwise necessary to display and/or maintain the Customer Site, in
object code, source code, and other applicable forms (collectively,
without regard to software owned by third parties, the "Software"), in
order to make the Customer Site available to users of the Internet
twenty-four (24) hours per day, seven (7) days per week.
5.2 Third Party Licenses
To the extent that any licenses are required to be obtained from
third parties for use of software necessary to operate or maintain the
Customer Site, Developer shall obtain, at Developer's sole cost, such
third party licenses for Customer's benefit following Customer's
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approval in writing of any associated third-party fees. Upon request by
Customer, Developer promptly shall supply copies of all such license
agreements to Customer.5.3 Millennium Compliant
Developer represents and warrants that the Software shall provide,
among other things, the following functionality: (i) accurate
processing of date-related information before, during and after January
1, 2000, including, without limitation, accepting date input, providing
date output, and performing calculations on dates or portions of dates;
(ii) function accurately in accordance with the Specifications and
without interruption before, during and after January 1, 2000 without
any change in operations associated with the advent of the new
century; (iii) respond to two-digit date input in a way that resolves any
ambiguity as to century in a disclosed, defined and predetermined
manner; and (iv) store and provide output of date information in ways
that are unambiguous as to century.
5.4 Third Party Software For Commercial Transactions
In the event that Customer requests and authorizes Developer to
develop and implement the capability to effect commercial
transactions directly over the Customer Site, Developer shall promptly
develop and implement such capability at no cost to Customer.
Notwithstanding the foregoing, Customer shall reimburse Developer
for any third party software which is pre-approved in writing by
Customer as necessary for the development and implementation of
such capability.
6. Fees And Payment; Other Consideration6.1 Fees To Be Paid By Developer
In consideration of Customer entering into this Agreement,
Developer shall pay to Customer the following: (i) an initial payment
of ________________________ dollars ($________) upon
Customer's execution of this Agreement (the "Initial Payment"); (ii)
__________________________ dollars ($________) upon the Launch
Date of the Customer Site (the "Second Payment"); and (iii) ______
percent of all Advertising Revenues (as hereinafter defined). In the
event Customer rejects the Specifications, and if mutual agreement
cannot be reach on modifications thereto within ________ (___) days
after the Effective Date, Customer shall refund the Initial Payment and
this Agreement shall automatically terminate.
6.1.1 Advertising Revenues
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The term "Advertising Revenues" shall mean all advertising or
other revenues arising from, or in connection with, the Customer Site
which are invoiced or received by Developer or any of its parent,
subsidiary or affiliate companies, and/or agents, net of all Operating
Expenses (as hereinafter defined).
6.1.2 Operating Expenses
The term "Operating Expenses" shall mean all direct out-of-pocket
expenses for personnel working exclusively on the Customer Site and
for acquiring materials for the Customer Site actually incurred by
Developer in connection with Developer's performance of the
Services, but excluding all other costs and expenses, such as, by way
of example only, Developer overhead, interest expenses, insurance
premiums, bad debt and taxes.
6.2 Fees To Be Paid By Customer
Customer presently does not intend to authorize commercial
transactions on the Customer Site. However, if Customer ultimately
authorizes such commercial transactions, then, in consideration of
Developer performing the portion of the Services described in
paragraph 5.4 hereof, Customer will reimburse Developer for
preapproved costs of acquiring third-party software, if any, required to
implement such transactions on the Customer Site, and will pay
Developer ____________ of all Net Commercial Revenues, if any (as
hereinafter defined).
6.2.1 Net Commercial Revenues
The term "Net Commercial Revenues" shall mean all revenues
received by Customer from the sale of Customer products directly
through commercial transactions over the Customer Site, but
excluding: (i) revenues received by Customer from the sale of goods
or products sold or distributed through any and all means other than
directly through the Customer Site; (ii) goods or products sold for
scrap or sold for less than Customer's cost; (iii) goods or products
distributed for promotional purposes, or furnished free to the trade,
press, or for public relations use; and (iv) goods or products furnished
free to distributors, sub-distributors, dealers or others, net of all
Commercial Expenses (as hereinafter defined).
6.2.2 Commercial Expenses
The term "Commercial Expenses" shall mean all applicable
discounts, returns and credits in the ordinary course of business; sales,
use or similar taxes; costs of goods and fulfillment (excluding
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Customer overhead); shipping costs; and expenses, if any, reimbursed
to Developer.6.3 Payment
______ times per year, promptly after the last day of each calendar
quarter: (i) Developer shall compute Advertising Revenues; and (ii)
Customer shall compute any Net Commercial Revenues. Within
______ (___) days after the last day of each calendar quarter: (i)
Developer shall send Customer a detailed accounting of such
Advertising Revenues and Operating Expenses together with payment
for the amount of Advertising Revenues then due; and (ii) Customer
shall send Developer a detailed accounting of Net Commercial
Revenues and Commercial Expenses together with payment for the
amount of Net Commercial Revenues then due.
6.4 Ancillary Rights
Developer shall have no right to any royalties, revenues, fees or
other payments in connection with, or as a result of, the Services or
the Customer Site, or with respect to products or services promoted on
or by the Customer Site, except as expressly provided in this Article 6.
Nor shall Developer have any rights of attribution in connection with
the Customer Site, which shall contain appropriate Customer
proprietary rights notices, as directed by Customer. Notwithstanding
the immediately preceding sentence, Developer shall have the right to
place a Customer-approved logo on a credits page for the Customer
Site, which logo may reference Developer's creation and operation of
the Customer Site and which may include a link to Developer's own
Web site, subject to the Customer Site Guidelines (as hereinafter
defined).
7. Auditing Rights
7.1 Books and Records
During the Initial Term of this Agreement and any Renewal Period
(as those terms are hereinafter defined) and for a period of ____ (__)
years after the expiration or termination of this Agreement, the Parties
shall maintain books and records as follows:
7.1.1 Customer
Customer shall maintain books and records reasonably
documenting: (i) Net Commercial Revenues, if any; and (ii) all
Commercial Expenses.
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7.1.2 Developer
Developer shall maintain such books and records reasonably
documenting: (i) all Advertising Revenues; (ii) all hours spent in
rendering the Services; and (iii) all Operating Expenses.
7.2 Inspection
For the sole purpose of verifying (i) Net Commercial Revenues
payable to Developer hereunder; or (ii) Advertising Revenues payable
to Customer hereunder: upon written notice to the non-auditing Party,
the auditing Party or its authorized representative shall have the right
upon ____ (___) days written notice to the non-auditing Party, but not
more than ____ (__) time per calendar quarter, to conduct a
reasonable inspection of the books and records of the non-auditing
Party described in Section 7.1 hereof. Such inspection shall be
conducted on the audited Party's premises, during normal business
hours and pursuant to mutually agreed upon confidentiality
restrictions, in such a manner as to minimize disruption to the audited
Party. The cost and expense of such audit shall be paid by the auditing
Party unless the audit reveals an underpayment to the auditing Party in
excess of ______________ of amounts due to the auditing Party, in
which case the audited Party shall pay the costs of such audit.
8. Customer Site Guidelines8.1 Guidelines
In addition to any requirements set forth or described in the
Specifications, Developer and the Customer Site shall strictly adhere
to the guidelines set forth in this Article 8 (collectively, the "Customer
Site Guidelines").
8.2 Artistic Control
Customer shall have exclusive artistic and editorial control over the
Customer Site, including without limitation, integration of all Content,
and the Design and look and feel of the Customer Site. Developer
shall not publish, or otherwise display the Customer Site or any
portion thereof without the prior written approval of Customer.
8.3 Purpose
The Customer Site and any Deliverables shall be designed to attract
repeat user visits and promote the most current Content, assets and
properties identified by Customer.
8.4 Limitations
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The Customer Site shall not, without the prior written consent of
Customer, contain: (i) software that is downloadable by users (other
than HTML and other software used to format and display HTML
documents or World Wide Web Pages, and elements embedded
therein, such as sounds, images, and audiovisual clips, which elements
Customer acknowledges will be downloadable by users); (ii) HTTP
links to other Web sites (except to Developer's corporate Web site for
purposes of promoting its development and maintenance of the
Customer Site); (iii) materials received and/or licensed from third
parties; or (iv) the capability to sell products directly through the
Customer Site.
9. Proprietary Rights
9.1 Ownership Of Content and Site
All rights, title and interest in and to the Content (as provided by
Customer and as digitized or otherwise reformatted by Developer for
the Customer Site, in all media now known or hereafter developed),
the Specifications, the Usage Information, Confidential Information
(as hereinafter defined), the Deliverables, the Customer Site and any
trademarks, trade names, logos, characters and other materials provide
by Customer, and the look and feel of the Customer Site, including,
without limitation, all copyrights, trademarks, trade names and other
proprietary rights inherent therein or appurtenant thereto (collectively,
the "Customer Materials") are owned and retained exclusively by
Customer.
9.2 Use of Customer Materials
Developer shall not use the Customer Materials or any portion
thereof for any purpose other than that of fulfilling Developer's
obligations under this Agreement. The Customer Materials and any
portion thereof may not be used, disclosed, transmitted, transferred,
sold, assigned, leased or otherwise disposed of, or made available for
access by third parties, or be commercially exploited by or on behalf
of Developer, its employees or agents, except as expressly provided in
this Agreement.
9.3 Developer Materials
Subject to Customer's ownership of all rights, title and interest in
and to the Customer Materials, all techniques, algorithms and methods
not in the public domain or licensed by Developer from any third
party and rights thereto owned by Developer as of the Effective Date
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of this Agreement are and shall remain the property of Developer
(collectively, the "Developer Materials").9.4 Work Made For Hire
Except for the Developer Materials, all materials, products, and
modifications developed or prepared for Customer by Developer
under this Agreement, including without limitation, the Customer
Materials are and shall remain the property of Customer, and all
rights, title and interest therein shall vest in Customer and shall be
deemed to be a "work made for hire" and made in the course of the
Services rendered hereunder. To the extent that title to the Customer
Materials does not, by operation of law, vest in Customer or the
Customer Materials are not considered works made for hire, all right,
title and interest therein are hereby irrevocably assigned to Customer.
All such materials shall belong exclusively to Customer with
Customer having the right to obtain and to hold in its own name
copyrights, registrations or such other protection as may be
appropriate to the subject matter, and any extensions and renewals
thereof. Developer agrees to give Customer and any person designated
by Customer any reasonable assistance required to perfect the rights
defined in this Article 9.
9.5 Domain Name
The Customer Site shall have its URL under Customer's domain
name, www.______.com, which domain name is and shall remain the
sole property of Customer (the "Primary Domain Name"). In addition,
Developer shall register any other domain names which are necessary
for the efficient and proper development and operation of the
Customer Site, which domain names will ultimately resolve to the
Primary Domain Name (the "Secondary Domain Names"). All
Secondary Domain Names shall remain the sole property of Customer.
To the extent that title to the Primary Domain Name and the
Secondary Domain Names does not vest in Customer by operation of
law, Developer hereby assigns all rights, title and interests to
Customer which Developer has, may have, or may hereafter have, if
any, in and to the Primary Domain Name and Secondary Domain
Names. Developer shall promptly, upon Customer's request, execute
any documents and submit any documents to Network Solutions, Inc.
and/or other agency which are necessary to give full force and effect
to the foregoing assignment.
9.6 Content License
Customer hereby grants to Developer a non-exclusive, non-
transferable, limited license, solely during the Initial Term of this
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Agreement and any Renewal Period, to use the Content solely for the
benefit of Customer in accordance with the terms and conditions of
this Agreement. Developer may make such copies of the Content as
may be necessary to perform its obligations under this Agreement,
including back-up copies of the Content.10. Confidentiality
10.1 Confidentiality
Unless otherwise agreed to in writing by Customer, Developer shall
maintain the strict confidentiality and shall not disclose to any third
party the existence of, or terms and conditions of, this Agreement. In
addition, Developer, in performing the Services for Customer
hereunder, will have access to or be exposed to, directly and
indirectly, Customer Materials, user information, data, knowledge,
information about the marketing, product and/or business affairs of
Customer, and proprietary and trade secret information of Customer,
in oral, graphic, written, electronic or machine readable form
(collectively, the "Confidential Information"). Confidential
Information shall not include information which can be demonstrated:
(i) to have been rightfully in the possession of Developer from a
source other than Customer prior to the time of disclosure of said
information to Developer hereunder ("Time of Receipt"); (ii) to have
been in the public domain prior to the Time of Receipt; (iii) to have
become part of the public domain after the Time of Receipt by a
publication or by any other means except an unauthorized act or
omission or breach of this Agreement on the part of Developer, its
employees, or agents; or (iv) to have been supplied to Developer after
the Time of Receipt without restriction by a third party who is under
no obligation to Customer to maintain such information in confidence.
10.2 Obligations
All Confidential Information of Customer shall be held in strict
confidence by Developer and shall not be disclosed or used by
Developer without the prior written consent of Customer, except as
provided in this Agreement, or as may be required by law pursuant to
available confidentiality restrictions. Developer shall hold
Confidential Information in strict confidence and shall use its best
efforts to provide protection for Confidential Information, including
measures at least as strict as those Developer uses to protect its own
Confidential Information. Customer acknowledges that it may receive
confidential information of Developer relating to its technical,
marketing, product and/or business affairs. All such confidential
information of Developer shall be held in strict confidence and shall
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not be disclosed or used without the prior written consent of
Developer, except as may be required by law pursuant to available
confidentiality restrictions.11. Warranties
11.1 Developer Warranties
Developer represents and warrants that: (i) all of the Services to be
performed hereunder will be rendered using sound, professional
practices and in a competent and professional manner by
knowledgeable, trained and qualified personnel; (ii) the Deliverables
and the Customer Site will appear and operate in conformance with
the Specifications and the Customer Site Guidelines, and the
Customer Site will be accessible by users of the Internet twenty-four
(24) hours per day, seven (7) days per week; (iii) Developer has full
authority to enter into this Agreement; (iv) all obligations owed to
third parties with respect to the activities contemplated to be
undertaken by Developer pursuant to this Agreement are or will be
fully satisfied by Developer, so that Customer will not have any
obligations with respect thereto; (v) Developer is the owner of or
otherwise has the right to use and distribute the Software, the
Developer Materials, and any other materials and methodologies used
in connection with providing the Services hereunder; (vi) Developer
will comply with all applicable federal, state and local laws in the
performance of its obligations hereunder; (vii) the Software, the
Developer Materials and other materials and methodologies used by
Developer in fulfilling its obligations under this Agreement (except
the Content) shall not infringe upon any third party copyright,
trademark, patent, trade secret or other third-party right; (viii) the
Customer Site shall not contain any Trojan horses, worms, viruses or
other disabling devices; and (ix) Developer, in implementing the
Customer Site, shall not alter the Customer Materials in any manner.
11.2 Customer Warranties
Customer represents and warrants that: (i) it has full authority to
enter into this Agreement; (ii) all obligations owed to third parties
with respect to the activities contemplated to be undertaken by
Customer pursuant to this Agreement are or will be fully satisfied by
Customer, so that Developer will not have any obligations with
respect thereto; and (iii) Customer has provided Content for the
Customer Site that does not infringe or violate copyright, patent,
trademark, trade secret or other proprietary rights of any third party.
12. Disclaimers Of Warranty
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THE WARRANTIES SET FORTH IN SECTIONS 1.2, 1.3, 3.3,
4.2, 4.6, 5.3 AND IN ARTICLE 11 OF THIS AGREEMENT ARE
LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES
MADE BY THE RESPECTIVE PARTIES. THE PARTIES
EXPRESSLY DISCLAIM, AND HEREBY EXPRESSLY WAIVE,
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. CUSTOMER MAKES NO WARRANTIES OR
GUARANTEES AS TO THE ACCURACY OR COMPLETENESS
OF ANY CONTENT PUBLISHED OR MADE ACCESSIBLE ON
THE CUSTOMER SITE.
13. Indemnification And Insurance13.1 Developer Indemnification
Developer shall indemnify, defend, and hold harmless Customer, its
directors, officers, employees and agents, against same with respect to
any claim, demand, cause of action, debt or liability, including
reasonable attorneys' fees, to the extent that the same is based upon a
claim that: (i) if true, would constitute a breach of any of Developer's
representations, warranties, or obligations hereunder; (ii) arises out of
the negligence or willful misconduct of Developer; or (iii) any of the
Developer Materials, or Services or Deliverables or the Customer Site
or any portion thereof infringes or violates any patents, copyrights,
trade names, trade secrets, licenses, or other rights of any third party.
13.2 Customer Indemnification
Customer shall indemnify, defend, and hold harmless Developer, its
directors, officers, employees and agents, with respect to any claim,
demand, cause of action, debt or liability, including reasonable
attorneys' fees, to the extent that the same is based upon a claim that
any of the Content provided by Customer infringes or violates any
U.S. patents which have issued as of the Effective Date, copyrights,
trademarks, trade secrets, licenses, or other property rights of any third
party.
13.3 Notice
In claiming any indemnification hereunder, the indemnified Party
shall promptly provide the indemnifying Party with written notice of
any claim which the indemnified Party believes falls within the scope
of this Article 13. The indemnified Party may, at its own expense,
assist in the defense if it so chooses, provided that the indemnifying
Party shall control such defense and all negotiations relative to the
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settlement of any such claim and further provided that any settlement
intended to bind the indemnified Party may not be entered into
without the indemnified Party's prior written consent, which shall not
be unreasonably withheld or delayed.13.4 Insurance
Developer shall, throughout the Initial Term of this Agreement and
any Renewal Period (as those terms are hereinafter defined), maintain
an errors and omissions insurance policy(ies) in an amount of not less
than ____________ dollars($_______), covering all of the Software
and Services to be provided and performed hereunder. Developer
agrees to notify Customer in writing of any amendment or
cancellation of any such policy(ies) or difficulty in obtaining policies
at a reasonable cost. Developer shall notify Customer when any claims
made against the errors and omissions policies, in the aggregate, total
in excess of __________ dollars($_______).
14. Term And Termination
14.1 Term
The initial term of this Agreement shall commence on the Launch
Date and shall continue until the ________ anniversary thereof
("Initial Term"). Thereafter the Agreement shall automatically be
renewed for successive periods of one (1) year (each a "Renewal
Period") for maximum of ________ aggregate years ("Complete
Term"), unless terminated by either of the Parties pursuant to the
terms of this Agreement.
14.2 Termination
Either Party may terminate this Agreement at any time upon written
notice to the other Party in the event of the occurrence of one or more
of the following events: (i) if a petition under any foreign, state, or
United States bankruptcy act, receivership statute, or the like, as they
now exist, or as they may be amended, is filed by the other Party; or
(ii) if such a petition is filed by any third party, or an application for a
receiver of the other Party is made by anyone, and such petition or
application is not resolved favorably by such Party within ____ days;
or (iii) the other Party materially breaches any of its representations,
warranties, obligations or agreements hereunder, and such breach, if
capable of being cured, is not cured within ______________ days
following receipt of written notice of such breach from the non-
breaching Party. Termination under Section 14.2(iii) hereof shall be
effective, at the non-breaching Party's option, upon the breaching
party's receipt of a notice of a material breach under Section 14.2(iii).
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14.3 Use of Software Upon Termination
In the event of any termination under Section 14.2, other than due
to Customer's default, Customer may continue to use or authorize a
third party to use the Developer Materials for the period of the
Complete Term in connection with the operation and maintenance of
the Customer Site, without any further obligations to Developer for
any Net Commercial Revenues or other amounts. However, Customer
shall assume any third party licenses required for such continued use
of third-party software.
14.4 Survival
Upon expiration or termination of this Agreement, all provisions
comprising the Parties' express warranties provided herein, in addition
to Sections 2.6, 5.1, and Articles 7, 9 (except Section 9.6), 10, 11, 12,
13 (except Section 13.4), 14 (except Section 14.6), and 15 shall
survive.
14.5 Return of Customer Materials and Advertising
Upon expiration or termination of this Agreement, or upon request
by Customer, Developer shall immediately (i) cease using and return
to Customer (or at Customer's request, destroy) all copies of Customer
Materials, if any, in its control or possession, in addition to all other
property belonging to and/or received from Customer; and (ii) cease
selling advertising on the Customer Site.
14.6 Transfer of Services
Upon termination or expiration of this Agreement, Developer shall,
at no cost to Customer, provide reasonable assistance to Customer and
any third parties authorized by Customer in assuming performance of
those Services necessary for the continued and uninterrupted operation
of the Customer Site.
15. General Provisions.
15.1 No Agency or Joint Venture
The Parties agree and acknowledge that the relationship of the
Parties is in the nature of an independent contractor. This Agreement
shall not be deemed to create a partnership or joint venture and neither
Party is the other's agent, partner, employee, or representative.
15.2 Force Majeure
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Neither Party shall be deemed in default of this Agreement to the
extent that performance of its obligations or attempts to cure any
breach are delayed or prevented by reason of any act of God or any act
beyond its reasonable control provided that such Party gives the other
Party written notice thereof promptly upon discovery thereof and uses
its best efforts to cure the delay.
15.3 Partial Invalidity
Should any provision of this Agreement be held to be void, invalid
or inoperative, the remaining provisions of this Agreement shall not be
affected and shall continue in effect and the invalid provision shall be
deemed modified to the least degree necessary to remedy such
invalidity.
15.4 No Waiver
The failure of either Party to partially or fully exercise any right or
the waiver by either Party of any breach, shall not prevent a
subsequent exercise of such right or be deemed a waiver of any
subsequent breach of the same or any other term of this Agreement.
15.5 No Assignment
Developer shall not assign this Agreement or any of its rights or
obligations under this Agreement to any other entity without the prior
written consent of Customer. Furthermore, no work to be performed
by Developer hereunder shall be subcontracted to or performed on
behalf of Developer by any third party, except with the prior written
consent of Customer.
15.5.1 Notices
Any notice required or permitted to be sent shall be in writing and
shall be sent in a manner requiring a signed receipt such as
authenticated Internet transmission, authenticated facsimile
transmission, FedEx or like courier delivery, or if mailed, then mailed
by registered or certified mail, return receipt requested. Notice is
effective upon receipt. Notices shall be sent to the addresses first set
forth above to the attention of the signatories of this Agreement.
15.6 Entire Agreement
This Agreement, including any Exhibits annexed hereto, set forth
the entire agreement between the Parties on this subject and
supersedes all prior negotiations, understandings and agreements
between the Parties concerning the subject matter, including without
limitation, the Letter of Intent between the Parties dated September
25, 1996. Notwithstanding the foregoing, the Script Loan and
Confidentiality Agreement between the Parties dated November 20,
1996 shall remain effective and in force. No amendment or
modification of this Agreement shall be made except by a writing
signed by the Party to be bound thereby.
15.7 Governing Law
This Agreement shall be governed and interpreted in accordance
with the laws of the state of ___________ without regard to principles
of conflict of laws. The Parties agree to submit to the exclusive
jurisdiction over all disputes hereunder in the appropriate federal or
state courts in the State of ____________ located in __________
County.
IN WITNESS WHEREOF, the Parties have executed and delivered
this Agreement as of the Effective Date.
BIG ENTERTAINMENT
DEVELOPER COMPANY, INC.
By: ____________________ By: __________________
Print Name: _______________ Print Name: ____________
Title: ____________________ Title: _________________
Date: ____________________ Date:_________________
