EXHIBIT 10.1
SOFTWARE DEVELOPMENT AGREEMENT
This Software Development Agreement ("Agreement") is made and
effective this March 17, 1999, by and between ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
Inc., a Delaware Corporation ("Buyer") and ▇▇▇▇▇ Commerce, LLC, a
Delaware Limited Liability Company ("Developer").
NOW THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. Duties and Responsibilities.
Developer shall serve as a contractor of Buyer and shall
design, develop, and implement applications software and web site
that allows the Buyer's customer to design, store, recall, and
order commercially printed business cards, letterhead, envelopes,
business forms, announcement invitations and other commercial
business printed items (any and all products, coding, software, and
services provided by Developer shall collectively be referred to
herein as the "Software") according to the functional
specifications and related information, if any, attached hereto as
Exhibit A and incorporated herein by this reference (the
"Specifications") and as more fully set forth in this Agreement.
Developer acknowledges that it has been contracted for this
specific task, and that it shall report all findings and make all
recommendations directly to the management of Buyer. The Software,
including all versions in either source code or object code form,
shall be delivered to Buyer not later than four (4) months from the
date of execution of this agreement.
2. Ownership of Software.
Developer agrees that the development of the "printing related
work" of the Software is "work made for hire" within the meaning of
the Copyright Act of 1976, as amended, and that the Software shall
be the sole property of Buyer. Printing related work is defined as
1) the software that provides WYSWYG generation of print designs 2)
the software that integrates with PrintOnTheNet's internal print
operations. ▇▇▇▇▇ Commerce, LLC will retain the rights for all
other aspects of the project, but will give PrintOnTheNet
exclusive, royalty-free, worldwide rights to modify and use the
Work provided by Developer. Developer hereby assigns to Buyer,
without further compensation, all of its right, title and interest
in and to the "printing related work" of the Software and any and
all related patents, patent applications, copyrights, copyright
applications, trademarks and trade names in the United States and
elsewhere. Developer will keep and maintain adequate and current
written records with respect to the Software (in the form of notes,
sketches, drawings and as may otherwise be specified by Buyer),
which records shall be available to and remain the sole property of
Buyer at all times. All versions of the "printing related work" of
the Software shall contain Buyer's conspicuous notice of copyright.
Developer will assist Buyer, at Buyer's expense, in obtaining and
enforcing patent, copyright, and other forms of legal protection
for the "printing related work" of the Software in any country.
Upon request, Developer will sign all applications, assignments,
instruments and papers and perform all acts necessary or desired by
Buyer to assign the "printing related work" of the Software fully
and completely to Buyer and to enable Buyer, its successors,
assigns and nominees, to secure and enjoy the full and exclusive
benefits and advantages thereof.
EX-1
3. Compensation.
A. Buyer shall pay Developer $147,500 as follows: $10,000.00 upon
execution of this Agreement, receipt of which is hereby
acknowledged; $15,000 upon the completion of the first milestone;
$35,000 upon the completion of the second milestone; $45,500 upon
the completion of the third milestone; $25,000 upon the completion
of the fourth milestone; $17,500 upon the completion of the fifth
milestone. Payment is due upon receipt of invoice.
The Milestones are defined as follows:
* First milestone: Completion of PrintOnTheNet corporate site and
approval of overall site design.
* Second milestone: Completion of "Print Design Tool".
* Third milestone Completion of "Graphic Server".
* Fourth milestone: Completion of "Print Design Publishing Tool".
Fifth milestone: Delivery of final Work with all features
specified in the Addendum, Exhibit "A".
B. Subject to Buyer's prior approval, Buyer will reimburse
Developer for all reasonable out-of-pocket expenses, including, but
not limited to, air fare, lodging, meals and rental of automobiles
incurred by Developer during the development of the Software on
behalf of Buyer.
C. Buyer shall pay for all hardware, software, development tools,
license fees, and co-location costs that are necessary for the
project.
4. Independent Contractor.
Developer is acting as an independent contractor with respect
to the services provided to Buyer. Neither Developer nor the
Developers of the Developer performing services for Buyer will be
considered Developers or agents of Buyer. Buyer will not be
responsible for Developer's acts or the acts of Developer's
employees, contractors or agents while performing services under
this Agreement. Nothing contained in this Agreement shall be
construed to imply a joint venture, partnership or principal-agent
relationship between the parties, and neither party by virtue of
this Agreement shall have any right, power or authority to act or
create any obligation, express or implied, on behalf of the other
party.
5. Development Staff-Monitoring.
A. Developer will utilize Developers and/or contractors
capable of designing and implementing the Software to be developed
hereunder, and agrees that all work performed in accordance with
this Agreement shall be supervised and performed primarily by ▇▇▇
▇'▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇ ("Key Developers"). All work shall be
performed in a professional and workmanlike manner. Developer
shall arrange for such Developers and/or contractors, if any, to
EX-2
execute and deliver any document or instrument reasonably requested
by Buyer to reflect Buyer's ownership of the Software or in
connection with any application for patent or copyright.
B. Buyer shall have the right to reasonably observe and
monitor all aspects of the performance by Developer of its
obligations hereunder and Developer shall use reasonable efforts to
facilitate such observation and monitoring, including, without
limitation, access to work in progress both on-site at the
Developer's location, via the Internet, and/or via modem access.
Information, functions and operations of Developer not directly
related to its obligations hereunder shall not be subject to
observation and monitoring.
6. Change in Specifications.
Buyer may, in its sole discretion, request that changes be
made to the Specifications, or other aspects of the Agreement and
tasks associated with this Agreement. If Buyer requests such a
change, Developer will use its best efforts to implement the
requested change at no additional expense to Buyer and without
delaying delivery of the Software. In the event that the proposed
change will, in the reasonable opinion of Developer, require a
delay in delivery of the Software or would result in additional
expense to Buyer, then Buyer and Developer shall confer and Buyer
shall, in its discretion, elect either to withdraw its proposed
change or require Developer to deliver the Software with the
proposed change and subject to the delay and/or additional expense.
7. Confidentiality and Non-Competition
A. Non-Competition
During the Restricted Period (as hereinafter defined) and
within the Restricted Area (as hereafter defined), Developer shall
not, directly, or indirectly, alone or as a partner, officer,
director, Developer, consultant, agent, independent contractor,
member or stockholder of any Buyer or business organization (a)
engage in any business which is directly in competition with the
Business; (b) provide goods or services to anyone else that is
directly in competition with the Business and (c) shall not solicit
to sell nor sell to any current or past customer or competitor of
Buyer, any service, product, computer software, and/or computer
hardware that is the same and/or materially the same as that which
was used and/or developed at any time (prior to and/or during the
term of this Agreement) by, and/or on behalf of, Buyer by
Developer.
B. Confidentiality
1. Developer acknowledges that all material and information
supplied by Buyer which has or will come into Developer's
possession or knowledge of Developer in connection with its
performance hereunder, is to be considered Buyer's confidential and
proprietary information (the "Confidential Information"). By way
of illustration, but not as a limitation, Confidential Information
includes the Software, trade secrets, processes, data, know-how,
program codes, documentation, flowcharts, algorithms, marketing
plans, forecasts, unpublished financial statements, budgets,
licenses, prices, costs, and Developer and customer lists.
Developer's undertakings and obligations under this Section will
not apply, however, to any Confidential Information which: (i) is
or becomes generally known to the public through no action on
EX-3
Developer's part, (ii) is generally disclosed to third parties by
Buyer without restriction on such third parties, or (iii) is
approved for release by written authorization of Buyer. Upon
termination of this Agreement or at any other time upon request,
Developer will promptly deliver to Buyer all notes, memoranda,
notebooks, drawings, records, reports, files, documented source
codes and other documents (and all copies or reproductions of such
materials) in its possession or under its control, whether prepared
by Developer or others, which contain Confidential Information.
Developer acknowledges that Confidential Information is the sole
property of Buyer. Developer agrees that disclosure of such
information to, or use by, third parties, either during or after
this Agreement, will cause Buyer irreparable damage. Developer
agrees to use best efforts to hold Confidential Information in the
strictest confidence, not to make use of it other than for the
performance of its obligations hereunder, to release it only to the
Developer's Developers or contractors with a need to know such
information and not to release or disclose it to any other party.
Developer further agrees not to release such information to any
Developer or contractor who has not signed a written agreement
between Developer and the Developer expressly binding the Developer
not to use or disclose the Confidential Information, except as
expressly permitted herein. Buyer shall be listed as a third-party
beneficiary of any such agreement. Developer will notify Buyer in
writing of any circumstances within its knowledge relating to any
unauthorized possession, use, or knowledge of such Confidential
Information. At any time, upon request, the Developer will return
any such information within its possession to Buyer.
Developer also agrees and acknowledges that Buyer is a
publicly traded corporation and that Developer may receive
"Confidential Information" that is material, nonpublic information
about the Buyer's business and its stock/securities. Accordingly,
Developer agrees that neither it, nor its employees will engage in
any trading of the Buyer's securities after learning of
significant, confidential corporate developments.
2. Developer acknowledges that Buyer's purpose in pursuing
the development of the Software is to gain a significant
competitive advantage over competitors operating without such
Software and that such advantage will be jeopardized if such
competitors learn of Buyer's negotiations with Developer or the
performance by Developer of its obligations hereunder.
Accordingly, Developer agrees to keep such negotiations and
performance of its obligations hereunder strictly confidential and
not to disclose any information to any third party or entity
without the prior written permission of Buyer. In no event, shall
Developer or any of its Developers use Buyer as a reference in
marketing Developer's services to any third party or entity without
Buyer's prior written permission.
C. Certain Definitions.For purposes of this Agreement:
"Restricted Period" shall mean the period commencing as of the
date hereof and terminating three (3) years from the date that
Developer ceases to provide and services to Buyer.
"Restricted Area" means any and all geographic areas where
there is access to the Internet and/or a Global Computer Network.
EX-4
"Business" shall, notwithstanding anything herein to the
contrary, include the business of providing printing services,
printed goods, and print advertising specialties.
8. Training.
Developer shall provide Buyer and its Developers with training
consultations with respect to the use of the Software as may
reasonably be requested by Buyer from time to time for a total of
forty (40) hours that can be spread over three (3) months after
acceptance at no additional costs to Buyer ("Training Period"). To
this end, Developer shall train Buyer as to how to modify and/or
enhance the web site and software (without the Developer's
intervention) and shall deliver a detailed user's manual to Buyer
on or before completion of acceptance that will enable Buyer's
Developers who are otherwise unfamiliar with the Software to become
adequately informed about using and modifying the Software. All
training that Developer is required to provide hereunder shall be
performed at such locations and at such times as are mutually
agreed to by the parties hereto. Upon the expiration of the
Training Period and following Buyer's request, Developer will
provide any support services necessary to insure Buyer's continued
use of the Software. Such services will be performed on a time and
material basis at Developer's then current hourly rates for such
services.
9. Warranties.
A. Developer warrants that for a period of six (5) weeks
following acceptance, the Software will operate substantially
according to the Specifications. In the event of any breach of the
warranty in this Section 9. A., in addition to any other remedy to
which Buyer may be entitled, Developer shall take all action
necessary to cause the Software to operate according to the
warranty. The first 100 hours of work needed to remedy the warranty
will be at the expense of Developer and any additional amount of
time will be billed to Buyer at $120 per hour.
10. Term and Termination.
A. This Agreement shall commence upon the effective date and
continue until all of the obligations of the parties have been
performed (and in no event later than June 30, 1999) or until
earlier terminated as provided herein.
B. Developer's appointment as consultant pursuant to this
Agreement and this Agreement shall terminate upon the occurrence of
any of the following events:
(i) In the event either party defaults in any material
obligation owed to the other party pursuant to this Agreement,
then this Agreement may be terminated if the default is not
cured following at least thirty (30) days' written notice to
the defaulting party.
(ii) Either party is bankrupt or insolvent, or
bankruptcy or insolvency proceedings are instituted against a
party and the proceeding is not dismissed within sixty (60)
days after commencement.
EX-5
(iii) Both or either of the Key Developers dies or
becomes disabled.
C. Section 2, Ownership of Software, and Section 7,
Confidentiality, shall survive the expiration or termination of
this Agreement. In the event of early termination due to
Developer's default or the death or disability of the individual(s)
identified in subsection B. (iii). above. Developer agrees to
deliver the Software then completed.
D. If the Agreement is terminated due to the death or
disability of Developer, then Developer (or Developer's executor,
administrator or other representative) shall deliver that part of
the Software then completed, provided payment is made by Buyer for
such completed part.
11. Notices.
All notices and other communications required or permitted
hereunder or necessary or convenient in connection herewith shall
be in writing and shall be deemed to have been given when mailed by
certified or registered mail, postage prepaid, or by commercial
overnight delivery service addressed as follows.
If to Buyer to:
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Developer to:
▇▇▇▇▇ Commerce, LLC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇ #▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Or to such other address as identified by a party to the other
in writing.
12. No Waiver.
The failure of a party to require strict performance of any
provision of this Agreement by the other, or the forbearance to
exercise any right or remedy, shall not be construed as a waiver by
such party of any such right or remedy or preclude any other or
further exercise thereof or the exercise of any other right or
remedy.
13. Assignment.
The rights, duties and privileges of Developer shall not be
transferred or assigned by it, in whole or in part, without the
prior written consent of Buyer.
14. Entire Agreement.
This Agreement constitutes the entire agreement between
parties as to the subject matter hereof and supersedes all prior
understandings or agreements whether oral or written. This
EX-6
Agreement may be modified only by written instrument signed by the
parties hereto.
15. Successors.
This Agreement shall be binding upon and insure to the benefit
of the successors and permitted assigns of the parties hereto.
16. Severability.
If any term of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, then this Agreement,
including all of the remaining terms, will remain in full force and
effect as if such invalid or unenforceable term had never been
included.
17. Governing Law.
The terms of this Agreement shall be construed and enforced
under the laws of the State of Florida and, where applicable, any
and all Federal statutory laws.
18. Headings.
The headings used in this Agreement are for convenience only
and are not to be used in construction or interpretation.
IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized representatives on the dates below written.
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. ▇▇▇▇▇ Commerce, LLC
By:/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By:/s/▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
President Principal
EX-7
