XXXXXXXXX.XXX, INC.
FORM 10-QSB - SEPTEMBER 30, 2000
EXHIBIT 10.5
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WEB SITE DEVELOPMENT AGREEMENT
This Web Site Development Agreement (the "Agreement") is entered into
and effective this 14th day of August, 2000 (the "Effective Date") by and
between Hydrogen Media, Inc., a Florida corporation ("HMI"), and Xxxxxxxxx.xxx,
Inc., a NASDAQ listed company ("Client").
TERMS AND CONDITIONS
1. DEVELOPMENT OF THE WEB SITE. Client hereby retains HMI to design and
develop, and HMI hereby agrees to design and develop, a Web Site in
accordance with (1) the project outline set forth on EXHIBIT A (Project
Outline) and (2) the Production Package (including, the Xxxxx Chart and
Site Map) developed jointly by Client and HMI (the "Web Site"). The Project
Outline and Production Package are collectively referred to herein as the
"System Specifications." The parties shall work together in a joint effort
to accomplish the tasks and objectives set forth in the System
Specifications. HMI shall be responsible for delivering and performing only
those professional services specifically identified in the System
Specifications. Any modifications to the System Specifications shall be
pursuant to the Change Order process set forth below.
2. ACCEPTANCE OF DELIVERABLES. Client shall execute a written approval upon
completion of each of the deliverables identified in the System
Specifications. HMI shall rely on such written approval as Client's
acceptance of such deliverable, including, but not limiting to, acceptance
of its design, content, layout, color, format, navigation, and
functionality. Any modifications to the deliverable(s) after execution of
the written approval by Client shall be subject to the Change Order process
set forth below.
3. CHANGE ORDERS. In the event Client desires to make any modifications to the
System Specifications or a deliverable, Client and HMI shall enter into a
Change Order in the form attached hereto as EXHIBIT B (the "Change Order").
The Change Order will include: the scope of services to be provided by HMI,
the scope of services to be provided by Client, the deliverable schedule,
and the cost/payment schedule for the modifications. If the Change Order is
acceptable to Client, HMI and Client shall execute the Change Order. All
Change Orders shall be effective upon execution by both parties, and shall
be attached to and incorporated into this Agreement. In the event of a
conflict between the terms of this Agreement and a Change Order, the terms
of this Agreement shall govern.
4. SUPPORT AND MAINTENANCE. Any support and maintenance services, updates,
versions, or new releases shall be contracted under a separate agreement
between HMI and Client. Maintenance and support for any third party
products or equipment may be available through the respective
vendor(s)/manufacturer(s) of such content and equipment and HMI may assign
third party rights to Client at HMI's sole discretion. Such assignment
shall not be unreasonably withheld.
5. TRAINING. Prior to the launch of the Web Site, HMI will provide five (5)
hours of verbal training (via telephone, seminar, one-on-one, or in person
at Client's discretion) for Client's staff. Any additional training after
such five (5) hours shall be executed pursuant to HMI's Change Order
process or contracted under a separate agreement between HMI and Client.
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FORM 10-QSB - SEPTEMBER 30, 2000
6. CLIENT RESPONSIBILITIES. Client agrees to perform all tasks assigned to
Client as set forth in this Agreement, the System Specifications, or a
Change Order, and to provide all assistance and cooperation to HMI in order
to complete timely and efficiently the Web Site. HMI shall not be deemed in
breach of this Agreement, the System Specifications, a Change Order, or any
milestone in the event HMI's failure to meet its responsibilities and time
schedules is caused by Client's failure to meet (or delay in) its
responsibilities and time schedules set forth in the System Specifications,
a Change Order, or this Agreement. In the event of any such failure or
delay by Client, (i) all of HMI's time frames, milestones, and/or deadlines
shall be extended by the product of the number of days of Client's failure
multiplied by two (2); and (ii) Client shall continue to make timely
payments to HMI as set forth in this Agreement, the System Specifications,
and any Change Order(s) as if all time frames, schedules, or deadlines had
been completed by HMI. Client shall be responsible for making, at its own
expense, any changes or additions to Client's current systems, software,
and hardware that may be required to support operation of the Web Site.
Unless otherwise contracted with HMI or reflected in a Change Order, Client
shall be responsible for initially populating and then maintaining any
databases on the Web Site as well as providing all content for the Web
Site. With the execution of a Change Order specifically asking HMI to
assesses the Client's systems, software and hardware from time to time, HMI
may agree to perform this function at normal HMI rates.
7. PROJECT MANAGERS. Client and HMI shall assign a Project Manager for
managing the implementation of the Web Site. The Project Managers shall be
responsible for: (i) managing the day-to-day activities under this
Agreement, (ii) serving as liaisons between the parties, (iii) assigning
and scheduling the appropriate personnel to perform all of the required
services under this Agreement, and (iv) authorizing and executing any and
all Change Order(s). Client hereby acknowledges and agrees that the Client
Project Manager shall have the proper authority and power to execute and
perform the duties and responsibilities set forth in this Section. HMI
hereby acknowledges and agrees that the HMI Project Manager shall have the
proper authority and power to execute and perform the duties and
responsibilities set forth in this Section.
8. MARKETING. Client hereby grants HMI the right to use the name and service
marks of Client in its marketing materials or other oral, electronic, or
written promotions, which shall include naming Client as a client of HMI
and a brief scope of services provided. In addition, Client hereby grants
HMI the right to display its logo (or other identifying information) and a
hyperlink to HMI's Web site (currently xxx.xxxxxxxxxxxxx.xxx) on the home
page of the Web Site. Any use of HMI logos or links on Client's Web Site
must be approved in writing by Client. Either party may elect to issue a
press release related to this Agreement. In doing so, any release shall be
approved by the other party and such approval shall not be unreasonably
withheld.
9. COMPATIBILITY. Unless otherwise specifically identified in the System
Specifications or a Change Order: (i) the Web Site is compatible solely
with Netscape Navigator version 4.0 and higher, America On-line version 4.0
and higher, and the domestic versions of Internet Explorer version 4.0 and
higher, (ii) the Web Site is not compatible with interactive television
protocols, and (iii) the Web Site shall function at resolutions of 640 x
480.
10. FEES, EXPENSES, AND PAYMENT.
10.1 Web Site Development Investment. Client agrees to pay HMI a total of
$141,117.00 for development of the Web Site (the "Development Price").
The Development Price shall be
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FORM 10-QSB - SEPTEMBER 30, 2000
payable as follows: (a) 100 percent of the cash fees or USD$98,777.00
due and payable upon execution of this Agreement and (b) 100 percent or
USD$42,340 payable in the form of unregistered common stock ("Stock")
of Client per the following terms:
a.) A number of shares of Stock having an aggregate value of
$42,340.00 as defined below shall be paid by Client to HMI
upon the completion of the services described in Exhibit A.
b.) The value of the Stock shall be based upon the average of
the daily closing prices as reported by NASDAQ for the week
ended on the completion date, less a 20% discount.
c.) Said Stock shall have piggyback registration rights as
specified in Exhibit C.
d.) Upon the written request of HMI, HMI shall be permitted to
transfer 13% of its Stock to Xxxxxxxx Xxxx.
e.) The issuance of the Stock to HMI and the transfer of Stock
to Xxxxxxxx Xxxx shall be subject to their execution of
investment letters and other customary documentation
acknowledging receipt of Client's public information in
order to comply with the federal and applicable state
securities laws.
10.2 Expenses. Client shall reimburse HMI for reasonable out-of-pocket
travel expenses (collectively, "Expenses"), including transportation,
lodging, mileage, and meals incurred in rendering HMI's professional
services. HMI shall obtain Client's prior written authorization
before incurring any individual expense or cost in excess of
USD$250.00 (or USD$3,000.00 in the aggregate). All Expenses not paid
directly by Client shall be paid within fourteen (14) days of receipt
of HMI's invoice. All Expense reimbursements shall be made at HMI's
direct out-of-pocket costs, without any markup for overhead,
administrative costs, or otherwise.
10.3 Taxes. Client shall pay, reimburse, and/or hold HMI harmless for all
sales, use, transfer, privilege, tariffs, excise, and all other taxes
and all duties, whether international, national, state, or local,
however designated except income taxes, which are levied or imposed
by reason of the performance of the professional services under this
Agreement or by use of the Web Site, except income taxes.
10.4 Other Fees. Unless otherwise provided in this Agreement or in a
Change Order, payment for all other services rendered by HMI shall be
contracted under a separate agreement between HMI and Client.
10.5 Form of Payment. All payments made to HMI under this Agreement shall
be in United States currency in the form of company check, cashier's
check, or electronic wire transfer.
10.6 Payment of Invoices. All invoices shall be paid by Client within
fourteen (14) days of receipt. Payments not made within such time
period shall be subject to late charges equal to the lesser of (i)
one and one-half percent (1.5%) per month of the overdue amount or
(ii) the maximum amount permitted under applicable law. HMI may
suspend all services on seven (7) days written notice until the
amounts outstanding are paid in full.
11. INTELLECTUAL PROPERTY RIGHTS AND LICENSE.
11.1 Web Site. Except as otherwise set forth in this Section 11.1, Client
and HMI agree that upon payment in full of the fees associated with
the design and development of the Web Site, Client shall own all
worldwide right, title, and interest in and to the Web Site
(including, its source code and documentation) (the "Custom
Programming"). Client and HMI agree that HMI shall retain a
world-wide, royalty-free, non-exclusive, transferable, and perpetual
right and license to the Custom Programming including, but not
limited to, the right to modify, amend, create
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FORM 10-QSB - SEPTEMBER 30, 2000
derivative works, rent, sell, assign, lease, sublicense, or otherwise
alter or transfer the Custom Programming. Client shall be responsible
for researching, obtaining, and filing all trademark, copyright,
patent, or other intellectual property protections for the Web Site,
its look and feel, any logos, any "tag lines," or any other Web Site
content or documentation designed or developed by HMI for Client.
Client and HMI also agree that the design and development of Client's
Web Site may include source code, documentation, and/or application
programs that were previously written or developed by HMI and
modified to meet Client's specific requirements (the "HMI Content").
HMI shall own all worldwide right, title, and interest in and to the
HMI Content, but shall provide Client (upon payment in full of the
fees associated with the design and development of the Web Site) a
worldwide, royalty-free, non-exclusive, transferable and perpetual
right and license to use the HMI Content. HMI agrees that it either
owns or will own any rights that it claims to own and which HMI
assigns to Client. HMI will assign any intellectual property rights
to Client that are consistent with this paragraph 11.
11.2 Third Party Licenses. In addition to any other fees set forth in this
Agreement, Client shall be required to purchase any applicable third
party licenses for any third party products that are necessary for
HMI to design and develop the Web Site. Such third party products may
include, but are not limited to: server-side applications, clip art,
"back-end" applications, music, stock images, or any other
copyrighted work which HMI deems necessary to purchase on behalf of
Client to design and develop the Web Site. In the event any such
third party product exceeds $250.00 per product (or $3000.00 in the
aggregate), HMI shall obtain Client's prior written consent before
incorporating such third party product into the Web Site. HMI shall
provide Client with a list of all third party products upon launch of
the Web Site.
12. TERM AND TERMINATION.
12.1 Term. This Agreement shall be effective as of the Effective Date and
shall continue in effect until complete payment of the Development
Price or until earlier terminated as provided in this Agreement or
until the contracted services as outlined in Exhibit A have been
completed.
12.2 Termination for Cause. This Agreement may be terminated by either
party upon written notice to the other, if the other party breaches
any material obligation provided hereunder and the breaching party
fails to cure such breach within thirty (30) days of receipt of the
notice.
12.3 Effect of Termination. Client shall pay HMI for all services rendered
and work performed up to the effective date of termination for any
reason subject to Client's rights to only pay fair value if Client
terminates for cause. HMI shall provide Client with an invoice for
the foregoing fees within thirty (30) days of the effective date of
the termination. Client shall pay the invoice within fourteen (14)
days of receipt.
12.4 Return of Proprietary or Confidential Information. Within ten (10)
days after the termination or expiration of this Agreement, each
party shall return to the other all Proprietary or Confidential
Information of the other party (and any copies thereof) in the
party's possession or, with the approval of the party, destroy all
such Proprietary or Confidential Information. "Proprietary or
Confidential Information" shall include, but is not limited to,
written or oral contracts, trade secrets, know-how, business methods,
business policies, memoranda, reports, records, computer retained
information, notes, or financial information. Proprietary or
Confidential Information shall not include any information which: (i)
is or becomes generally known to the public by any means other than a
breach of the obligations of the receiving party; (ii) was previously
known to the receiving party or rightly received by the receiving
party from a third party; (iii) is
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FORM 10-QSB - SEPTEMBER 30, 2000
independently developed by the receiving party; or (iv) is subject to
disclosure under court order or other lawful process.
13. LIMITED WARRANTIES.
13.1 Web Site. HMI warrants that for a period of ninety (90) days from
launch of the Web Site, the Web Site will operate in accordance with
all the material terms of the System Specifications. All warranty
claims not made in writing within such period shall be deemed waived.
As the sole and exclusive remedy of Client for breach of the
foregoing warranty, HMI shall, at its option, either correct the
nonconformity or refund to Client the dollar amount attributable to
the number of actual hours HMI spent developing the defective portion
of the Web Site. HMI shall not be liable for failures caused by third
party hardware or software (including Client's own systems), misuse
of the Web Site, or the negligence or willful misconduct of Client.
13.2 Performance of Professional Services. HMI warrants that the
professional services will be performed in a workmanlike and
professional manner by appropriately qualified personnel.
14. DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE Web
Site IS PROVIDED on an "AS IS" and "AS AVAILABLE" basis, AND HMI EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
15. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER OR ANY THIRD PARTY, FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR THE WEB SITE,
OR FOR ANY CLAIM BY ANY THIRD PARTY. THE TOTAL LIABILITY FOR ALL DAMAGES,
LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE) TO THE OTHER SHALL NOT EXCEED THE DEVELOPMENT
PRICE (AS DEFINED IN SECTION 0). THIS LIMITATION OF LIABILITY SHALL APPLY
EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL IN THEIR ESSENTIAL
PURPOSE.
16. THIRD PARTY DISCLAIMER. HMI MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS
OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR
ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
17. INDEMNIFICATION OBLIGATIONS.
17.1 Client Indemnity. Client shall indemnify and hold harmless HMI (and
its subsidiaries, affiliates, officers, agents, co-branders or other
partners, and employees) from any and all claims, damages,
liabilities, costs, and expenses (including, but not limited to,
reasonable attorneys' fees and all related costs and expenses)
incurred by HMI as a result of any claim, judgment, or adjudication
against HMI related to or arising from (a) any photographs,
illustrations, graphics, audio clips, video clips, text, data or any
other information, content, display, or material (whether written,
graphic, sound, or otherwise) provided by Client to HMI (the "Client
Content"), or (b) a claim that HMI's use of the Client Content
infringes the
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FORM 10-QSB - SEPTEMBER 30, 2000
Intellectual Property rights of a third party. To qualify for such
defense and payment, HMI must: (i) give Client prompt written notice
of a claim; and (ii) allow Client to control, and fully cooperate
with Client in, the defense and all related negotiations.
17.2 HMI Indemnity. HMI shall indemnify and hold harmless Client (and its
subsidiaries, affiliates, officers, agents, co-branders or other
partners, and employees) from any and all claims, damages,
liabilities, costs, and expenses (including, but not limited to,
reasonable attorneys' fees and all related costs and expenses)
incurred by Client as a result of any claim, judgment, or
adjudication against Client arising from a claim that Client's use of
the HMI Content, as permitted under this Agreement, infringes
Intellectual Property rights of a third party. To qualify for such
defense and payment, Client must: (i) give HMI prompt written notice
of a claim; and (ii) allow HMI to control, and fully cooperate with
HMI in, the defense and all related negotiations. HMI shall have no
obligation to indemnify Client under this Section to the extent the
infringement arises from (i) the Client Content, (ii) specifications
provided by Client or its agents; (iii) derivative works of the Web
Site created by Client, (iv) use of the Web Site in combination with
non-HMI approved third party products, including hardware and
software, (v) modifications or maintenance of the Web Site by a party
other than HMI, (vi) misuse of the Web Site, and (vii) failure of
Client to implement any improvement or updates to the Web Site, if
the infringement claim would have been avoided by the use of the
improvement or updates.
17.3 Promptly after receipt by a person entitled to indemnification
pursuant to the foregoing Section 17.1 or 17.2 (the "Indemnified
Party") of notice of the commencement of any action, the Indemnified
Party will, if a claim in respect thereof is to be or has been made
against a party who has agreed to provide indemnification under
Section 17.1 or 17.2 (an "Indemnifying Party"), promptly notify in
writing the Indemnifying Party of the commencement thereof; but the
omission to so notify the Indemnifying Party will not relieve it from
any liability which it may have to the Indemnified Party except to
the extent the Indemnifying Party is prejudiced by the delay or
failure to notify it. In case any such action is brought against an
Indemnified Party, and it notifies the Indemnifying Party of the
commencement thereof, the Indemnifying Party will be entitled to
participate in, and, to the extent that it may wish, jointly with any
other Indemnifying Party similarly notified, to assume the defense
thereof, subject to the provisions herein stated, with counsel
reasonably satisfactory to the Indemnified Party, and after notice
from the Indemnifying Party to the Indemnified Party of its election
to so assume the defense thereof, the Indemnifying Party will not be
liable to the Indemnified Party under this Section 17 for any legal
or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation. The Indemnified Party shall have the right to employ
separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall not be at
the expense of the Indemnifying Party if the Indemnifying Party has
assumed the defense of the action with counsel reasonably
satisfactory to the Indemnified Party; provided that the fees and
expenses of such counsel shall be at the expense of the Indemnifying
Party if (i) the employment of such counsel has been specifically
authorized in writing by the Indemnifying Party or (ii) the named
parties to any such action (including any impleaded parties) include
both the Indemnified Party or parties and the Indemnifying Party and,
in the judgement of counsel for the Indemnified Party, it is
advisable for the Indemnified Party or parties to be represented by
separate counsel (in which case the Indemnifying Party shall not have
the right to assume the defense of such action on behalf of the
Indemnified Party or parties, it being understood, however, that the
Indemnifying Party shall not, in connection with any one such action
or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of
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FORM 10-QSB - SEPTEMBER 30, 2000
more than one separate firm of attorneys for the Indemnified Party or
parties. No settlement of any action against an Indemnified Party
shall be made without the consent of the Indemnifying Party and no
Indemnifying Party, in the defense of any such claim or action,
shall, except with the consent of the Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant
or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. If the Indemnified
Party fails to execute a release or other settlement agreement under
circumstances where all of the conditions of the preceding sentence
have been met, the Indemnifying Party shall have no further
obligation to the Indemnified Party pursuant to this Agreement or
otherwise.
18. CONFIDENTIALITY. The parties agree to hold each other's Proprietary or
Confidential Information in strict confidence. The parties agree not to
make each other's Proprietary or Confidential Information available in any
form to any third party or to use each other's Proprietary or Confidential
Information for any purpose other than as specified in this Agreement. Each
party's Proprietary or Confidential Information shall remain the sole and
exclusive property of that party. The parties agree that in the event of
use or disclosure by the other party other than as specifically provided
for in this Agreement, the non-disclosing party may be entitled to
equitable relief. Notwithstanding termination or expiration of this
Agreement, HMI and Client acknowledge and agree that their obligations of
confidentiality with respect to Proprietary or Confidential Information
shall continue in effect for a total period of three (3) years from the
Effective Date.
19. FORCE MAJEURE. Except with regard to payment obligations, either party
shall be excused from delays in performing or from failing to perform its
obligations under this Agreement to the extent the delays or failures
result from causes beyond the reasonable control of the party, including,
but not limited to: default of subcontractors or suppliers; failures or
default of third party software, vendors, or products; acts of God or of
the public enemy; U.S. or foreign governmental actions; strikes;
communications, network/internet connection, or utility interruption or
failure; fire; flood; epidemic; and freight embargoes.
20. CHOICE OF LAW; VENUE; LIMITATION OF ACTIONS. This Agreement shall be
governed and construed in accordance with the laws of the United States and
the State of Florida, and the parties consent to the sole and exclusive
jurisdiction of the state courts and U.S. federal courts having
jurisdiction in Pinellas County, Florida for any dispute arising out of
this Agreement. No action by HMI or Client arising under this Agreement may
be brought at any time more than two (2) years after the facts occurred
upon which the cause of action arose.
21. INDEPENDENT CONTRACTOR STATUS. Client and HMI agree that HMI shall perform
its duties under this Agreement as an independent contractor.
22. NOTICES. Any written notice or demand required by this Agreement shall be
sent by registered or certified mail (return receipt requested), personal
delivery, overnight commercial carrier, or other guaranteed delivery to the
other party at the address set forth herein. The notice shall be effective
(a) as of the date of delivery if the notice is sent by personal delivery,
overnight commercial courier or other guaranteed delivery, and (b) as of
five (5) days after the date of posting if the notice is transmitted by
registered or certified mail.
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FORM 10-QSB - SEPTEMBER 30, 2000
23. ENTIRE AGREEMENT. This Agreement and all exhibits, schedules, and Change
Order(s) set forth the entire agreement between the parties with regard to
the subject matter hereof. No other agreements, representations, or
warranties have been made by either party to the other with respect to the
subject matter of this Agreement, except as referenced herein. This
Agreement may be amended only by a written agreement signed by both
parties.
24. DISPUTES. Client and HMI agree to make a good-faith effort to resolve any
disagreement arising out of, or in connection with, this Agreement through
negotiation. Should the parties fail to resolve any such disagreement
within ten (10) days, any controversy or claim arising out of or relating
to this Agreement, including, without limitation, the interpretation or
breach thereof, shall be submitted by either party to arbitration in
Pinellas County, Florida and in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. The arbitration shall be
conducted by one arbitrator, who shall be (a) selected in the sole
discretion of the American Arbitration Association administrator and (b) a
licensed attorney with at least ten (10) years experience in the practice
of law and at least five (5) years experience in the negotiation of
technology contracts or litigation of technology disputes. The arbitrator
shall have the power to enter any award that could be entered by a judge of
the state courts of Florida sitting without a jury, and only such power,
except that the arbitrator shall not have the power to award punitive
damages, treble damages, or any other damages which are not compensatory,
even if permitted under the laws of the State of Florida or any other
applicable law. The arbitrator must issue his or her resolution of any
dispute within thirty (30) days of the date the dispute is submitted for
arbitration. The written decision of the arbitrator shall be final and
binding and enforceable in any court having jurisdiction over the parties
and the subject matter of the arbitration. Notwithstanding the foregoing,
this Section shall not preclude either party from seeking temporary,
provisional, or injunctive relief from any court.
25. SEVERABILITY. In the event that a court finds any provision of this
Agreement invalid and/or unenforceable, the parties agree that the
remaining provisions shall remain valid and in force.
26. WAIVER. Neither party shall be deemed by mere lapse of time (without giving
notice or taking other action hereunder) to have waived any breach by the
other party of any of the provisions of this Agreement. Further, the waiver
by either party of a particular breach of this Agreement by the other party
shall not be construed as, or constitute, a continuing waiver of such
breach, or of other breaches of the same or other provisions of this
Agreement.
27. SURVIVAL. The following provisions shall survive termination or expiration
of this Agreement: Sections 10 (Fees, Expenses, and Payment), 11
(Intellectual Property Rights and License), 12 (Term and Termination), 14
(Disclaimer of Warranties), 15 (Limitation of Liability), 16 (Third Party
Disclaimer), 17 (Indemnification Obligations) 18 (Confidentiality), 20
(Choice of Law; Venue; Limitation of Actions), 24 (Disputes), and 27
(Survival).
28. DAYS. Unless indicated otherwise, all references to "days" shall mean
calendar days.
29. COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts and all counterparts so executed shall for all purposes
constitute one agreement, binding on all parties.
30. APPROVAL. This Agreement shall not be binding upon HMI until it has been
approved by HMI's legal department and signed by an officer of HMI.
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FORM 10-QSB - SEPTEMBER 30, 2000
The parties have executed this Agreement by their duly authorized
representatives as of the Effective Date.
HMI CLIENT
--- ------
HYDROGEN MEDIA, INC. XXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
----------------------- -------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx
--------------------- -----------------
Title: CFO Title: President
-------------------- ---------------
Address: Address:
0000 Xxxx Xxxxx 000 Xxxxxxxxx.xxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000 Xxxx Xxxxx, XX 00000
LEGAL DEPARTMENT APPROVAL:
This Agreement was approved by the HMI legal department on the 14th day of
September, 2000.
/s/ Xxxxxxxxxxx X. Xxxxx
------------------------
Approved HMI officer
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FORM 10-QSB - SEPTEMBER 30, 2000
EXHIBIT A
---------
The scope of the project is as follows:
GATEWAY
From Xxxxxxxxx.xxx Home page, users will click on the Webcast section gateway
button.
AKAMAI
Akamai will provide high-bandwidth delivery of streaming video.
AUTODETECT PLAYER
The site will be encoded for both RealPlayer and Windows MediaPlayer on the user
end. The site will detect which player is installed on the user's machine, and
automatically configures to play back using the appropriate player. If neither
player is present on a user's computer, the site will offer the opportunity to
download the desired player.
WEBCAST PAGE/CUSTOM BROWSER
Users will be presented with a custom browser page that enables users to view
streaming video and content links related to the video topic, and to browse the
net.
VIDEO SELECTIONS
Users will select the video they wish to view from a list of topics.
ATTORNEY REFERRAL NETWORK
Users can link to the Xxxxxxxx.xxx Attorney Referral Network from the Webcast
page at all times.
HIRING AN ATTORNEY
Users can link to this section on Xxxxxxxxx.xxx at any time.
AUDIO ONLY OPTION Users can select audio only.
STREAMING VIDEO WINDOW
The selected video will be streamed into the site and be viewed through an
imbedded window.
CONTENT WINDOW
A content window will display links to related information on Xxxxxxxxx.xxx.
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Page E-61
XXXXXXXXX.XXX, INC.
FORM 10-QSB - SEPTEMBER 30, 2000
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Page E-62
XXXXXXXXX.XXX, INC.
FORM 10-QSB - SEPTEMBER 30, 2000
EXHIBIT B
---------
CHANGE ORDER NO. _____
This CHANGE ORDER NO. _____ (hereinafter referred to as the "Change
Order") is effective as of the _____ day of _______________ 2000 by and between
HYDROGEN MEDIA, INC. ("HMI"), a Florida corporation and________________________,
a _______________ corporation ("Client").
WHEREAS, Client and HMI entered into that certain Web Site Development
Agreement dated as of the _____ day of ________________ 2000 (the "Agreement")
for the development of the Web Site.
WHEREAS, Sections 1 (Development of the Web Site), 2 (Acceptance of
Deliverables), and 3 (Change Orders) of the Agreement, require HMI and Client to
enter into a Change Order prior to the modification of the System Specifications
or a deliverable, setting forth the details and specifications necessary for
completion of the modifications.
NOW, THEREFORE, in consideration of the mutual promises described
below, HMI and Client, intending to be mutually bound, agree to the following
terms and conditions:
1. SCOPE OF SERVICES. HMI shall perform the services as described in
SCHEDULE I attached.
2. COMMENCEMENT AND COMPLETION OF SERVICES. Unless otherwise agreed in
writing by the parties, the services shall be completed in accordance
with the deliverable schedule attached hereto as SCHEDULE II.
3. PAYMENT. Payment to HMI for performance of the services described in
this Change Order shall be as set forth in SCHEDULE I.
4. LOCATION OF PERFORMANCE. The services described above shall be
performed at HMI.
5. HMI PROJECT MANAGER. The HMI Project Manager for performance of the
services is _______________.
6. CLIENT PROJECT MANAGER. The Client Project Manager for performance of
the services is _______________.
7. INCORPORATION BY REFERENCE. The terms and conditions of the Agreement
are hereby incorporated by reference and made a part of this Change
Order. When executed and dated by HMI, this Change Order (and any
attached Schedule or other documentation) shall have effect as a
binding contract as provided in Section 3 (Change Orders) of the
Agreement. The parties intend that the terms and conditions of the
Agreement and the Change Order be complementary with each other;
however, in the event of a conflict between the terms and conditions of
this Change Order and those of the Agreement, the terms and conditions
of the Agreement shall take precedence and control over those of this
Change Order.
Page E-63
XXXXXXXXX.XXX, INC.
FORM 10-QSB - SEPTEMBER 30, 2000
HMI: CLIENT:
HYDROGEN MEDIA, INC. _________________________________
By:_______________________________ By:______________________________
Name:_____________________________ Name:____________________________
Title:____________________________ Title:___________________________
Date:_____________________________ Date:____________________________
Page E-64
XXXXXXXXX.XXX, INC.
FORM 10-QSB - SEPTEMBER 30, 2000
EXHIBIT C
---------
PIGGYBACK REGISTRATION RIGHTS
SECTION 1. PIGGYBACK REGISTRATION
---------- ----------------------
(a) Each time that the Client proposes for any reason to register any of its
Stock under the Securities Act of 1933 (the "Securities Act") in connection
with the proposed offer and sale of its Stock for money, either for its own
account or on behalf of any other security holder ("Proposed
Registration"), other than pursuant to a registration statement on Forms
X-0, X-0 or any similar forms, the Client shall promptly give written
notice of such Proposed Registration to HMI and Xxxxxxxx Xxxx and shall
offer HMI and Xxxxxxxx Xxxx the right to request inclusion of their Stock
issued pursuant to the terms of the Agreement in the Proposed Registration.
(b) HMI and/or Xxxxxxxx Xxxx shall have 30 days from the receipt of such notice
to deliver to the Client a written request specifying the number of shares
of Stock that HMI and/or Xxxxxxxx Xxxx intends to sell in the Proposed
Registration, as well as information on HMI and/or Xxxxxxxx Xxxx 's
intended method of disposition.
(c) In the event that the Proposed Registration by the Client is, in whole or
in part, an underwritten public offering, the Client shall so advise HMI
and Xxxxxxxx Xxxx as part of the written notice given pursuant to Section
1(a) of this Exhibit, and any request under Section 1(b) of this Exhibit
must specify that their Stock be included in the underwriting on the same
terms and conditions as the shares of Stock, if any, otherwise being sold
through underwriters under such registration.
(d) Upon receipt of a written request pursuant to Section 1(b) of this Exhibit
C, the Client shall promptly use its best efforts to cause all such shares
of Stock held by HMI and Xxxxxxxx Xxxx to be registered under the
Securities Act (and included in any related qualifications under blue sky
laws or other compliance), to the extent required to permit sale or
disposition as set forth in the Proposed Registration.
(e) In the event that the offering is to be an underwritten offering, and HMI
and/or Xxxxxxxx Xxxx propose to distribute their shares of Stock through
such underwritten offering, HMI and/or Xxxxxxxx Xxxx agree to enter into an
underwriting agreement with the underwriter or underwriters selected for
such underwriting by the Client.
(f) Notwithstanding the foregoing, if in its good faith judgment the managing
underwriter determines and advises the Client in writing that the inclusion
of the Stock issued to HMI and Xxxxxxxx Xxxx pursuant to the Agreement in
the underwritten public offering, together with any Stock offered by the
Client would interfere with the successful marketing of such securities,
the managing underwriter may exclude the Stock from the Proposed
Registration as long as all shares of Stock owned by the Client's officers,
directors and 5% shareholders are excluded.
Section 2. Preparation and Filing
---------------------------------
If and whenever the Client is under an obligation pursuant to this
Agreement to use its best efforts to effect the registration of any shares of
its Stock, the Client shall, as expeditiously as practicable:
(a) prepare and file with the Securities and Exchange Commission (the
"Commission") a registration statement with respect to such securities and
use its best efforts to cause such registration statement to become and
remain effective in accordance with Section 2(b) hereof;
Page E-65
(b) prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective until the
earlier of (i) the sale of all Stock covered thereby or (ii) the expiration
of three months from the effective date of the registration statement, and
to comply with the provisions of the Securities Act with respect to the
sale or other disposition of all Stock covered by such registration
statement;
(c) furnish to HMI and Xxxxxxxx Xxxx such number of copies of any summary
prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents as such holder may reasonably request in order to facilitate the
public sale or other disposition of such shares of Stock issued to HMI and
Xxxxxxxx Xxxx pursuant to this Agreement;
(d) use its best efforts to register or qualify the Stock covered by such
registration statement under the securities or blue sky laws of New York
and up to three other states that do not impose what is commonly referred
to as merit review and all other acts or things which may be necessary or
advisable to enable HMI and Xxxxxxxx Xxxx to consummate the public sale or
other disposition in such jurisdictions of such Stock; provided, however,
that the Client shall not be required to consent to general service of
process for all purposes in any jurisdiction where it is not then subject
to process, qualify to do business as a foreign corporation where it would
not be otherwise required to qualify or submit to liability for state or
local taxes where it is not liable for such taxes;
(e) at any time when a prospectus relating thereto covered by such registration
statement is required to be delivered under the Securities Act, notify HMI
and Xxxxxxxx Xxxx of the happening of any event as a result of which the
prospectus included in such registration, as then in effect, includes an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of-the circumstances then existing and, at the
request of such holder, as promptly as practicable prepare, file and
furnish to such holder a reasonable number of copies of a supplement to or
an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(f) if the Client has delivered preliminary or final prospectuses to HMI and/or
Xxxxxxxx Xxxx and after having done so the prospectus is amended to comply
with the requirements of the Securities Act, the Client shall promptly
notify HMI and Xxxxxxxx Xxxx and, if requested, they shall immediately
cease making offers of their Stock and return all prospectuses to the
Client. The Client shall promptly HMI and Xxxxxxxx Xxxx with revised
prospectuses and, following receipt of the revised prospectuses, HMI and
Xxxxxxxx Xxxx shall be free to resume making offers of the Stock; and
Section 3. Expenses
-------------------
The Client shall pay all expenses incurred in complying with Sections 1 and
2 of this Exhibit C, including, without limitation, all registration and filing
fees (including all expenses incident to filing with the NASD Regulation, Inc.),
fees and expenses of complying with securities and blue sky laws, printing
expenses, and fees and disbursements of the Client's counsel for the holders of
their Stock; provided, however, that all underwriting discounts and selling
commissions, attorneys' fees of HMI and Xxxxxxxx Xxxx, if any, and selling
expenses applicable to the Stock issued to HMI and Xxxxxxxx Xxxx and covered by
registration effected pursuant to this Exhibit C hereof shall be borne by HMI
and Xxxxxxxx Xxxx, in proportion to the number of shares of Stock sold by each
respectively.
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