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PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT is entered into as of December 28,
1999 by and between Xxxxx.xxx, a Delaware corporation with offices at 0000 X.
Xxxxxxx'x Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, ("Xxxxx.xxx"), and Expert Practice,
Inc., a California corporation, with offices at 0000 Xxxxxx xxx Xxx Xxxxx, Xxxxx
000, Xxx Xxxxx XX 00000 ("Client").
1. SCOPE
This Agreement covers the purchase of certain Services from Xxxxx.xxx,
pursuant to orders placed by Client and accepted by Xxxxx.xxx after the
Effective Date, as set forth from time to time on sequentially numbered
Attachments to this Agreement. Each Attachment shall be executed by the parties
and, when fully executed, will be incorporated into this Agreement. Xxxxx.xxx
shall provide qualified and trained personnel to render such Services and shall
use reasonable commercial efforts to meet the delivery schedules set forth in
the applicable Schedules.
As of the Effective Date, this Agreement includes the following
Attachments, which are incorporated herein by this reference:
Attachment 1 Xxxxx.xxx Development Services
Attachment 2 Xxxxx.xxx Hosting Services
2. DEFINITIONS
These terms shall be defined as follows:
a. "Agreement" means this Professional Services
Agreement, together with all Attachments
(whether in existence at the time this
Agreement is executed or created thereafter)
and any schedules and/or exhibits appended
to the Attachments.
b. "Attachment" means a sequentially numbered
document appended to this Agreement that
sets forth, at a minimum (i) a description
of certain Services, (ii) any deliverables
(if applicable), (iii) the payment terms for
those Services and (iv) the term or duration
of the Services; and, that, when executed by
both parties, shall be incorporated into
this Agreement and shall be subject to the
terms of this Agreement. To the extent that
any term of an Attachment is inconsistent
with a term of this Agreement, the term
contained in the Attachment shall prevail.
c. "Client Web Site" shall mean that certain
website on the World Wide Web with a URL at
xxx.xxxxxxxxxxxxxx.xxx, for public Internet
access, for which Xxxxx.xxx is rendering
Services hereunder, as set forth on one or
more Attachments.
d. "Confidential Information" means, without
limitation," information (whether conveyed
orally or in writing) about algorithms,
application programming interfaces,
protocols, trade secrets, computer software,
designs, technology, ideas, know-how,
products, services, processes, data,
techniques, improvements, inventions
(whether patentable or not), works of
authorship,
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ideas, know-how, products, services,
processes, data, techniques, improvements,
inventions (whether patentable or not),
works of authorship, business and product
development plans, customer lists and other
information concerning actual or anticipated
business, research or development, or which
is received by license from a third party.
e. "Effective Date" of this Agreement means
July 20, 1999; and, with respect to each
Attachment, the later of (i) July 20, 1999
or (ii) the first date upon which Xxxxx.xxx
actually rendered to Client the Services
specified in that Attachment.
f. "Schedule(s)" means any schedule appended to
an Attachment that sets forth with
reasonable specificity the Services to be
rendered, or deliverables (if applicable) or
the payment terms or other variables
negotiated by the parties with respect to
the Services.
g. "Services" means those certain design and
development, hosting, web site maintenance,
marketing, distribution or other services,
identified and described in an Attachment
that Xxxxx.xxx provides pursuant to this
Agreement.
h. "URL" means uniform resource locator and
refers to the particular internet address
which identifies and locates a web site.
3. PAYMENT
a. Xxxxx.xxx's Fee. In consideration for
Services performed pursuant to any
Attachment to this Agreement, subject to
paragraph 3.c. below, Client will pay
Xxxxx.xxx, upon receipt of an invoice for
Services rendered, the amount negotiated by
the parties prior to execution of such
Attachment. The negotiated amount shall be
set forth on the Schedule B appended to each
Attachment.
b. Out-of-Pocket Expenses. In the event that
Xxxxx.xxx renders Services at Client's
location, Client shall reimburse Xxxxx.xxx
for reasonable travel expenses incurred by
Xxxxx.xxx personnel rendering such Services
at Client's location, so long as Xxxxx.xxx
submits bona fide receipts documenting such
expenses in accordance with Client's
reimbursement policy.
c. Remittance. Xxxxx.xxx will send Client an
invoice for actual Services rendered at
least monthly. Each invoice will set forth
the Services rendered during the immediately
preceding month, identified by task or
project components, the number of
person-hours devoted to each such task or
project component, the per hour fee for each
person who performed and the aggregate fee
for the billing period. It is the parties
intention that Client may remit payment
either in cash or by issuance of Client's
capital stock. If Client elects to pay
Xxxxx.xxx in cash, Client must remit payment
within ten(10)
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business days after receipt of Xxxxx.xxx's
second monthly invoice for Services for
which a balance is then due. If Client fails
to remit payment within ten (10) business
days after receipt of Xxxxx.xxx's second
invoice, then, commencing on the 11th
business day, Xxxxx.xxx may begin to charge
interest on the balance due at a rate of one
and one-half (1.5%) per month or the maximum
rate permitted by law, whichever is less,
until the balance due is paid. If, however,
Client elects to issue capital stock as
remittance for the balance due, the grace
period for payment may be longer, as
follows: Client must provide to Xxxxx.xxx a
detailed term sheet relating to the capital
stock proposed to be issued and the terms
and payment by capital stock must be
preapproved by Xxxxx.xxx. To allow a
reasonable amount of time for Xxxxx.xxx's
review and approval and a reasonable amount
of time for Client's board of directors to
take the required corporate action, Client
may have up to ten (10) business days after
receipt of Xxxxx.xxx's third monthly invoice
for Services for which a balance is then due
to issue its capital stock. If Client fails
to issue the stock to Xxxxx.xxx within
such ten day period, then Xxxxx.xxx may
charge interest on the balance due. Such
interest shall be calculated retroactively
to the date of the first monthly invoice in
the immediately preceding three month
period, at a rate of one and one-half (1.5%)
per month or the maximum rate permitted by
law, whichever is less, until the balance
due is paid.
4. TERM AND TERMINATION.
a. Term. The term of Services for which Client
contracts on each Attachment will commence
on the Effective Date of that Attachment
and, unless an Attachment specifies a
particular term or describes a finite
project for which a deadline is established,
the term for such Services will extend until
terminated as set forth below.
b. Termination for Cause. This entire
Agreement, or any particular Attachment
alone, may be terminated by either party in
the event of (i) any material default in, or
material breach of, any of the terms and
conditions of this Agreement (or any
material default in, or material breach of,
any of the terms and conditions of a
particular Attachment, as the case may be)
by the other party, which default continues
in effect after the defaulting party has
been provided with written notice of default
and thirty (30) days to cure such default;
(ii) the commencement of a voluntary case or
other proceeding seeking liquidation,
reorganization or other relief with respect
to either party of its debts under any
bankruptcy, insolvency, or other similar law
now or hereafter in effect, that authorizes
the reorganization or liquidation of such
party or its debt or the appointment of a
trustee, receiver, liquidator, custodian or
other similar official of it or any
substantial part of its property; (iii)
either party's consent to any such relief or
to the appointment of or taking possession
by any such official in an involuntary case
or other proceeding commenced against it; or
(iv) either party's making a general
assignment for the benefit of creditors; or
either party's becoming insolvent; or either
party taking any corporate action to
authorize any of the foregoing.
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c. Termination for Convenience. This entire
Agreement, or any particular Attachment
alone, may be terminated by either party
upon one hundred twenty (120) days' advance
written notice (or such shorter or longer
period of time as may be set forth in any
particular Attachment).
d. Effect of Termination. If this Agreement is
terminated by either party for any reason,
Client shall remit payment to Xxxxx.xxx of
the total undisputed fees associated with
all projects and tasks completed as of the
termination date, as well as all amounts due
and owing for any third-party products or
services purchased by Xxxxx.xxx on Client's
behalf. The foregoing shall be without
limitation to the rights and remedies of
either party under this Agreement
e. Survival. Any section of this Agreement
hereto addressing confidentiality,
intellectual property rights, warranties,
disclaimers, indemnification, termination
and governing law shall survive any
termination or expiration of this Agreement
and the Attachment.
5. CONFIDENTIALITY
a. Confidential Information. Each party
acknowledges that, in connection with the
performance of this Agreement, it may
receive certain Confidential Information of
the other party.
b. Covenant. Each party hereby agrees: (i) to
hold and maintain in strict confidence all
Confidential Information of the other party
and not to disclose it to any third party;
and (ii) not to use any Confidential
Information of the other party except as
permitted by this Agreement or as may be
necessary to perform its obligations under
this Agreement. Each party will use at least
the same degree of care to protect the other
party's Confidential Information as it uses
to protect its own Confidential Information
of like importance, and in no event shall
such degree of care be less than reasonable
care.
c. Exceptions. Notwithstanding the foregoing,
the parties agree that Confidential
Information will not include any information
that: (i) is or becomes generally known or
is or becomes part of the public domain
through no fault of the other party, (ii)
the disclosing party authorizes to be
disclosed; (iii) is rightfully received by
the receiving party from a third party
without restriction on disclosure and
without breach of this Agreement; or (iv) is
known to the other party on the Effective
Date from a source other than the party
claiming that the information is
Confidential Information, and not subject to
a confidentiality obligation.
d. Injunctive Relief. Each party acknowledges
that any breach of the provisions of this
section may cause irreparable harm and
significant injury to an extent that may be
extremely difficult to ascertain.
Accordingly, each party agrees that the
other party will have, in addition to any
other rights or remedies available to it at
law or in equity, the right to injunctive
relief, without posting
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any bond (unless required by statute) and
without showing actual damages, to enjoin
any breach or violation of this section.
6. GENERAL PROVISIONS
a. Force Majeure. In the event that either
party is unable to perform any of its
obligations under this Agreement or to enjoy
any of its benefits because of any event
beyond the control of the affected party
including, but not limited to, natural
disaster, acts of God, actions or decrees of
governmental bodies or failure of
communication lines (a "Force Majeure
Event"), the party who has been so affected
shall promptly give written notice to the
other party and shall use its best efforts
to resume performance. Upon receipt of such
notice, all obligations under this Agreement
shall be immediately suspended for the
duration of such Force Majeure Event.
b. Notice. All notices, demands, requests or
other communications required or permitted
under this Agreement will be deemed given
(i) when delivered personally; or (ii) five
(5) days after having been sent by
registered or certified mail, return receipt
requested, postage prepaid; or (iii) one (1)
day after deposit with a commercial
overnight carrier, with written verification
of receipt or (iv) on the same day, if
transmitted by facsimile documented by a
printed transmission report. Any notice
required or permitted under this Agreement
shall be in writing and delivered to the
address set forth below, or such other
address as the other party has provided by
written notice.
c. Waiver. Waiver of any breach or failure to
enforce any term of this Agreement shall not
be deemed a waiver of any breach or right to
enforce which may thereafter occur. No
waiver shall be valid against any party
hereto unless made in writing and signed by
the party against whom enforcement of such
waiver is sought and then only to the extent
expressly specified therein.
d. Severability. In the event any one or more
of the provisions of this Agreement shall
for any reason be held to be invalid,
illegal or unenforceable, the remaining
provisions of this Agreement shall be
unimpaired and the parties will substitute a
new enforceable provision of like economic
intent and effect.
e. Governing Law. This Agreement, the rights
and obligations of the parties hereto, and
any claims or disputes thereto, shall be
governed by and construed in accordance with
the laws of the State of Colorado without
reference to conflicts of law principles.
f. Assignment. Neither party shall have the
right to assign this Agreement without the
prior written consent of the other party;
provided, that either party shall have the
right to assign this Agreement to any person
or entity that acquires or succeeds to all
or substantially all of such party's
business or assets upon written notice to
the other party.
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g. Publicity. If the parties agree that a press
release regarding this Agreement is
appropriate, then, they will collaborate on
a joint press release announcing the
existence of this Agreement. Neither party
will use the other party's name, domain
name, logo, trademark or service xxxx in
advertising or publicity without obtaining
the other party's prior written consent;
provided, however, that Xxxxx.xxx shall have
the nonexclusive right and license to use
Client's name and Client Web Site name,
including the URL thereto, as a Client
reference, and as part of Xxxxx.xxx's client
portfolio. Xxxxx.xxx shall also have the
right to display its name and logo, as well
as a link to the Xxxxx.xxx site, on the
Client Web Site, and to receive credit as
the developer of the Client Web Site,
(collectively, the "Credit"). Such Credit
shall appear on the "home page" of the
Client Web Site in a position that provides
reasonable and appropriate visibility to
Xxxxx.xxx in light of industry standards and
Client's requirements.
h. Additional Actions and Documents. Each of
the parties hereto hereby agrees to take or
cause to be taken such further actions, to
execute, deliver and file or cause to be
executed, delivered and filed such further
documents, and will obtain such consents, as
may be necessary or as may be reasonably
requested in order to fully effectuate the
purposes, terms and conditions of this
Agreement.
I. Headings. Section headings contained in this
Agreement are inserted for convenience or
reference only, shall not be deemed to be a
part of this Agreement for any other
purpose, and shall not in any way define or
affect the meaning, construction or scope of
any of the provisions hereof.
j. Execution in Counterparts. This Agreement
may be executed in two counterparts, each of
which shall be deemed to be an original, and
both of which, when taken together, shall
constitute one and the same instrument.
k. Independent Contractors. The relationship of
the parties hereunder shall be that of
independent contractors. Nothing herein
shall be construed to constitute a
partnership between or joint venture of the
parties, nor shall either party be deemed
the agent of the other or have the right to
bind the other in any way without the prior
written consent of the other.
THIS AGREEMENT, INCLUDING THE ATTACHMENTS LISTED ABOVE AND APPENDED
FROM TIME TO TIME, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE
PARTIES WITH REFERENCE TO THE SUBJECT MATTER HEREOF. IF THERE IS ANY CONFLICT
BETWEEN THE TERMS AND CONDITIONS OF ANY PROPOSAL AND THE TERMS AND CONDITIONS OF
THIS AGREEMENT, THIS AGREEMENT SHALL CONTROL. THIS AGREEMENT MAY BE MODIFIED,
REPLACED OR RESCINDED ONLY IN WRITING, AND SIGNED BY A DULY AUTHORIZED
REPRESENTATIVE OF EACH PARTY.
SIGNATURE PAGE TO FOLLOW
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PROFESSIONAL SERVICES AGREEMENT
SIGNATURE PAGE
AGREED:
XXXXX.XXX EXPERT PRACTICE, INC.
0000 X. Xxxxxxx'x Xxxxx Xxxxxx 4025 Camino del Rio South
Suite Number 540 Suite Number 100
Xxxxxxxxx, XX 00000 Xxx Xxxxx, XX 00000
By /s/ XXXXXX XXXXXXX By /s/ XXXX X. XXXXX
-------------------------- ------------------------
Xxxxxx Xxxxxxx, CEO Xxxx X. Xxxxx, CEO
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ATTACHMENT 1
XXXXX.XXX DEVELOPMENT SERVICES
The parties intend that the terms and conditions set forth in this Attachment
are read in conjunction with the terms and conditions in the Agreement to which
this Attachment is appended.
1. DEFINITIONS
All capitalized terms used in this Attachment and not defined in this Attachment
shall have the meanings ascribed to them in the Agreement.
1.1. "Client Content" shall mean marketing collateral, data, text,
audio files, video files, graphics and other materials provided by Client
(whether owned by Client or licensed to Client by a third party) or developed
hereunder for use with the Client Web Site or product, but excluding the
Xxxxx.xxx Software.
1.2 "Development Services" shall mean design, development, and set-up
services as necessary to design and produce the Client Web Site or products
and/or any other consulting and project management services rendered in
accordance with the specifications identified in the appropriate Schedules, if
any, attached hereto.
1.3. "Xxxxx.xxx Software" shall mean certain computer program code used
to create seamless cross-platform information flow and process business logic to
combine data from disparate sources. If, and to the extent that, such Xxxxx.xxx
Software is used by Xxxxx.xxx in rendering Development Services, it shall be
provided in object code form only unless the parties mutually agree in writing
to delivery of source code.
2. DEVELOPMENT SERVICES
2.1. Development Services. Xxxxx.xxx shall render Development Services
in accordance with the specifications identified in Schedule 1-A attached
hereto. Any additions, deletions or other changes to Schedule 1-A shall be
mutually agreed to in writing or orally in advance by both parties and shall be
memorialized in a revised Schedule 1-A pursuant to the procedure set forth in
Section 2.3 below for Change Orders. All services shall be performed at
Xxxxx.xxx's offices unless otherwise agreed by the parties. In the event that
services are performed at Client's location, Client shall provide Xxxxx.xxx at
no charge with all necessary facilities and equipment, including without
limitation, computer time on Client's computers and office space, sufficient to
render the Services contemplated hereunder. Client shall deliver to Xxxxx.xxx
all Client Content selected by Client for incorporation into the Client Web Site
or product in digitized format in accordance with the delivery schedule set
forth in Schedule 1-A. In the event that Client fails to deliver the Client
Content in accordance with Schedule 1-A, Xxxxx.xxx's schedule for delivery of
Development Services shall be extended by the number of days that delivery of
the Client Content was delayed, unless Xxxxx.xxx
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notifies Client that this extension will not rectify Xxxxx.xxx's scheduling
interruption resulting from Client's delay. If Client determines that,
notwithstanding the delay of Client's deliverables, timely delivery of
Xxxxx.xxx's Development Services is critical, then such delay may also result in
additional charges to Client, in which case the parties shall mutually agree
upon a new delivery schedule and fees with respect to the expedited rendition of
the Development Services.
2.2. Acceptance of Deliverables. Within fifteen (15) business days
after the delivery to Client of any deliverable pursuant to Schedule 1-A, Client
shall provide Xxxxx.xxx with written notice of any failure of any deliverable to
materially conform to the functional specifications set forth in Schedule 1-A.
Xxxxx.xxx and Client shall review the objections, and Xxxxx.xxx will use
commercially reasonable efforts to correct any material nonconformities with the
functional specifications and provide Client with a revised deliverable within
fifteen (15) days after such review. Client shall have deemed to have accepted
the deliverable if Xxxxx.xxx does not receive written notice of Client's
objections within the fifteen (15) day period after the original delivery.
2.3. Change Orders. If Client desires to make changes to an existing
Schedule, the parties shall mutually agree upon an additional or revised
Schedule for each new Change Order. Each such Schedule shall be successively
numbered (e.g., 1.A, 1.B, etc.) and shall be executed by the parties. Any
revised Schedule(s) shall be subject to the terms and conditions of this
Agreement.
3. OWNERSHIP AND LICENSE RIGHTS
3.1. Property Rights and Ownership. The parties' respective rights to
Client Content and Xxxxx.xxx Software shall be as set forth below. For purposes
of this Agreement, the term "ownership" shall refer to ownership of all
intellectual property rights including, but not limited to, all patent,
copyright, trade secret and trademark rights, as applicable, with respect to the
subject intellectual property.
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Intellectual Property Elements Ownership/Rights
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Client Content, including all Client Content that is Client has sole ownership.
modified by Xxxxx.xxx ("Modified Content"); Client and
server-side code; graphical elements and HTML files
that contain Client Content, and modifications to Client
Content as a result of Client's usage of self-authoring
tools.
Content created for Client by Xxxxx.xxx and accepted and Client has sole ownership.
paid for by Client, as well as commissioned. Content
authored by third parties specifically for use in
connection with this Agreement and paid for by Client
(e.g., original illustrations or graphics).
Domain name for Client Web Site. Client has sole ownership.
Server usage report data/statistics generated by the Client has sole ownership of data/statistics, and
Xxxxx.xxx Software in form and substance as set forth Xxxxx.xxx has a license pursuant to Section 3.3 below.
in the applicable Schedule or as mutually agreed by
the parties.
Commercially available third-party software which is Third parties have ownership, and Client shall be
incorporated into the Xxxxx.xxx Software. informed of all third-party software that Client may
need to license at Client's own expense.
Xxxxx.xxx Software developed by or for Xxxxx.xxx in Xxxxx.xxx has sole ownership of such Xxxxx.xxx
connection with this Agreement for Client. Software. Client shall be granted a license to use the
Xxxxx.xxx Software as set forth in Section 3.2.
Xxxxx.xxx supplied material developed generally to Xxxxx.xxx has sole ownership of such developed
support Xxxxx.xxx products and/or service offerings (e.g. material. Client shall be granted a license to use the
http configuration). Xxxxx.xxx Software as set forth in Section 3.2 below.
3.2. License to Client. If Xxxxx.xxx designs and develops the Client
Web Site or product such that any Xxxxx.xxx Software is required to operate and
display the Client Web Site, then Xxxxx.xxx will promptly notify Client in
writing and will grant Client a non-exclusive, non-transferable world-wide and
perpetual license to use the Xxxxx.xxx Software in object code version only to
operate and display the Client Web Site or product. If Xxxxx.xxx designs and
develops the Client Web Site such that any Xxxxx.xxx Software is required for
Client's internal business needs, then Xxxxx.xxx grants Client a non-exclusive,
non-transferable world-wide and perpetual license to use
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the Xxxxx.xxx Software in object code version only for Client's internal
business needs. In either case, Xxxxx.xxx agrees to execute a conventional
escrow agreement pursuant to which the parties will establish an escrow account
with a recognized third party escrow agent to hold a complete and current copy
of the source code for the applicable Xxxxx.xxx Software; and, to the extent
that Xxxxx.xxx updates such Xxxxx.xxx Software from time to time, Xxxxx.xxx
agrees to promptly place each such update in the escrow account for the benefit
of Client. Client may grant a sublicense to a third party that Client engages to
host the Client Web Site; provided, that such third party agrees in writing to
be bound by the license and confidentiality restrictions set forth in this
Agreement. Client is prohibited from duplicating and/or distributing any
Xxxxx.xxx Software without the prior written consent of Xxxxx.xxx; provided,
however that Client may copy the Xxxxx.xxx Software only as needed for
reasonable ordinary backup or disaster recovery procedures. Client may use the
backup copies only if the installed copy is lost or destroyed or the hardware on
which the installed copy is installed becomes inoperable, provided that the use
of said backup copies is discontinued immediately when the original hardware
becomes operable.
3.3. License to Xxxxx.xxx. For the period of time that Xxxxx.xxx is
rendering Development Services, Client grants Xxxxx.xxx a non-exclusive,
non-transferable license to use, copy, and modify the Client Content in
connection with Xxxxx.xxx's performance of the Development Services.
3.4. Supporting Documents. Each party agrees to execute any additional
documents deemed reasonably necessary to perfect the other party's rights with
respect to the intellectual property elements set forth above.
3.5. No Reverse Engineering. All rights not expressly granted hereunder
are reserved by Xxxxx.xxx. Without limiting the foregoing, Client may not
reverse engineer, reverse assemble, decompile or otherwise attempt to derive the
source code from the Xxxxx.xxx Software.
3.6. Proprietary Notices. In the event that Client uses any Xxxxx.xxx
Software, all copies of the Xxxxx.xxx Software and other Xxxxx.xxx supplied
materials used by Client shall contain copyright and other proprietary notices
in the same manner in which Xxxxx.xxx incorporates such notices in the Xxxxx.xxx
Software or in any other manner requested by Xxxxx.xxx. Client agrees not to
remove, obscure or obliterate any copyright notice, trademark or other
proprietary rights notices placed by Xxxxx.xxx on or in the Xxxxx.xxx Software.
4. LIMITED WARRANTY
4.1. Software Warranty. In the event that Client uses any Xxxxx.xxx
Software, then, subject to the limitations set forth in this Agreement,
Xxxxx.xxx warrants only to Client that the Xxxxx.xxx Software furnished
hereunder when properly installed, properly used and unmodified by Client, will
substantially conform to the functional specifications set forth in Schedule
1-A___. Xxxxx.xxx's warranty shall extend for a period of ninety (90) days from
the date that the final deliverables specified in Schedule 1-A are delivered to
Client ("Warranty Period"). Xxxxx.xxx's sole responsibility under this Section
shall be to use reasonable commercial efforts to promptly correct material
errors, or at Xxxxx.xxx's option, to refund Client's fees paid for the Xxxxx.xxx
Software after deinstallation and return thereof. All warranty claims not made
in writing or not received by Xxxxx.xxx within the Warranty Period shall be
deemed waived. Xxxxx.xxx's warranty obligations are solely for the benefit of
Client, who has no authority to extend or transfer this warranty to any other
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person or entity.
4.2. XXXXX.XXX DOES NOT WARRANT THAT THE USE OF THE XXXXX.XXX SOFTWARE
WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SPECIFICATIONS WILL MEET
CLIENT'S REQUIREMENTS. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, XXXXX.XXX
DOES NOT MAKE ANY WARRANTY AS TO THE XXXXX.XXX SOFTWARE OR THE RESULTS TO BE
OBTAINED FROM USE OF THE XXXXX.XXX SOFTWARE. EXCEPT FOR THE EXPRESS WARRANTIES
SET FORTH ABOVE, THE XXXXX.XXX SOFTWARE IS USED ON AN "AS-IS" BASIS WITHOUT
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH
RESPECT TO THE INTERNET OR USE OF INFORMATION IN CONNECTION WITH THE SOFTWARE.
5. INTELLECTUAL PROPERTY INDEMNIFICATION
5.1. Xxxxx.xxx.
5.1.1. Indemnification and Defense. Xxxxx.xxx, at its own cost
and expense, shall indemnify and defend Client and its officers, directors,
employees and contractors against any claim that the Xxxxx.xxx Software
infringes a third-party United States copyright or trade secret or other
intellectual property right, and shall pay any settlements entered into or
damages awarded against Client, or its officers, directors, employees and
contractors, to the extent related to such claim, provided that (i) Client
notifies Xxxxx.xxx promptly in writing of the claim; (ii) Xxxxx.xxx has the sole
control of the defense and all related settlement negotiations; and (iii) Client
provides Xxxxx.xxx with all reasonably necessary assistance, information, and
authority to perform the foregoing at Xxxxx.xxx's expense. Xxxxx.xxx agrees
that, in the event any action, proceeding or investigation, administrative,
legal or otherwise, is initiated against Xxxxx.xxx in connection with or arising
out of Xxxxx.xxx's performance under this Agreement or any attachment appended
to this Agreement, Xxxxx.xxx shall not (i) implead Client in any such action,
proceeding or investigation, (ii) initiate any proceeding or investigation or
file any separate action, administrative, legal or otherwise (including any
cross-claim or counter-claim), against Client or (iii) seek to recover from
Client any claims, judgments, costs, liabilities, damages or expenses, including
any attorneys' fees ("Losses"), or seek to obtain contribution or indemnity from
Client with respect to any such Losses, without regard to fault on the part of
any person or entity. For purposes of this paragraph the term Client includes
any parent, subsidiary or affiliate of Client, Client's insurance carrier and
the officers, directors, employees, agents and contractors of each of the
foregoing.
5.1.2. Limitation on Liability. In the event that Xxxxx.xxx
provides Client any Xxxxx.xxx Software in rendering Development Services to
Client, then Xxxxx.xxx shall have no liability for any claim of infringement
based on (i) use by Client of other than the current update of the Xxxxx.xxx
Software if the infringement would have been avoided by uses of the current
update; (ii) modifications, adaptations or changes to the Xxxxx.xxx Software not
made by Xxxxx.xxx; (iii) the combination or use of the materials furnished
hereunder with materials not furnished by Xxxxx.xxx if such infringement would
have been avoided by use of the Xxxxx.xxx materials alone; or (iv) use or
incorporation of Client Content or Modified Content. In the event the Xxxxx.xxx
Software is held to, or Xxxxx.xxx believes is likely to be held to, infringe the
intellectual property rights of a third party, Xxxxx.xxx shall have the right at
its sole option and expense to (i) substitute or modify the Xxxxx.xxx
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Software so that it is non-infringing and qualitatively and functionally
equivalent to the Xxxxx.xxx Software; (ii) obtain for Client, at Xxxxx.xxx's
expense, a license to continue using the Xxxxx.xxx Software; or if neither (i)
nor (ii) is commercially reasonable, Xxxxx.xxx shall have the right to terminate
this Attachment immediately upon written notice to Client, but shall make Client
whole by reimbursing Client for reasonable expenses associated with development
by a third party of new software that is non-infringing and qualitatively and
functionally equivalent to the Xxxxx.xxx Software.
5.1.3 Work-Made-For-Hire; Assignment. As set forth in Section
3.1, all material on any media whatsoever, excluding specifically any Xxxxx.xxx
Software ("Material"), developed or prepared by Xxxxx.xxx for Client under this
Agreement, whether completed or in the process of creation, shall be deemed to
be "work-made-for-hire" and made in the course of the Development Services
rendered hereunder and shall belong exclusively to Client. Notwithstanding the
foregoing, in the event that any of the Material is deemed by a court of
competent jurisdiction not to be a work-made-for-hire under the U.S. copyright
laws, this Agreement shall operate an irrevocable assignment by Xxxxx.xxx to
Client of all rights of authorship to the Material arising under the U.S.
copyright laws. To that end, Xxxxx.xxx agrees to execute and deliver all
documents requested by Client in connection therewith. No rights of any kind in
the Material are reserved to Xxxxx.xxx.
5.1.4 Xxxxx.xxx warrants and represents:
A. the Material created by Xxxxx.xxx in rendering Development
Services is original to Xxxxx.xxx;
B. the Material has not been published, and shall not be
published, under circumstances which have caused, or may
cause, loss of copyright;
C. neither the Material, nor any portion thereof, violates any
patent, copyright, trade secret or other proprietary right of
any other party;
D. the Material will conform in all respects to Client's
specifications and other requirements;
E. in developing the Material, Xxxxx.xxx shall not utilize any
confidence, trade secrets or copyright protected information
or material of any other person or entity;
F. Xxxxx.xxx's employees have expertise in performing the
Services;
G. Xxxxx.xxx's employees shall comply with all relevant laws,
regulations, ordinances, and other governmental orders of all
relevant governmental authorities and bodies in providing the
Development Services; and,
H. in recognition of the critical nature of timely completion of
the Development Services, Xxxxx.xxx has, and shall maintain,
sufficient resources, facilities, capacity and manpower to
ensure that all Development Services will be performed by
qualified personnel in a workmanlike manner, and in conformity
with the highest standards of Xxxxx.xxx's industry.
5.2. Client.
5.2.1. Client hereby represents and warrants to Xxxxx.xxx that
(i) Client has secured all necessary consents, permissions, clearances,
authorizations and waivers for the use of Client Content or Modified Content,
including without limitation, all text, pictures, audio, video, logos and copy
contained in all Client Content or Modified Content; (ii) the use of Client
Content as contemplated herein shall not infringe the copyright, trademark or
other intellectual property
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rights of any party, or constitute defamation, invasion of privacy, or the
violation of any right of publicity or any other right of any party; and (iii)
Client has complied and shall comply with all legislation, rules and regulations
regarding Client Content.
5.2.2. Client shall indemnify and hold harmless Xxxxx.xxx, its
directors, officers, parent company, and affiliates, from any and all liability,
costs and expenses (including attorney's fees) arising in connection with any
third party claim or action brought against Xxxxx.xxx, or any of its directors,
officers, parent company, and affiliates, relating to Client Content or Modified
Content, provided (i) Xxxxx.xxx notifies Client promptly in writing of such
claim, (ii) Client has the sole control of the defense and all related
settlement negotiations, and (iii) Xxxxx.xxx provides Client with all reasonably
necessary assistance, information and authority to perform the foregoing at
Client's expense.
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ATTACHMENT 1
SIGNATURE PAGE
AGREED:
XXXXX.XXX EXPERT PRACTICE, INC.
0000 X. Xxxxxxx'x Xxxxx Xxxxxx 4025 Camino del Rio South
Suite Number 540 Suite Number 100
Xxxxxxxxx, XX 00000 Xxx Xxxxx, XX 00000
By /s/ XXXXXX XXXXXXX By /s/ XXXX X. XXXXX
-------------------------- ------------------------
Xxxxxx Xxxxxxx, CEO Xxxx X. Xxxxx, CEO
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SCHEDULE 1-A
DEVELOPMENT SERVICES
1. WEB SITE AND PRODUCT DESIGN, DEVELOPMENT AND IMPLEMENTATION
2. PROJECT MANAGEMENT AND ON-GOING SUPPORT
3. GENERAL SITE MANAGEMENT ACTIVITIES AND ATTENDANCE ON TELEPHONE
CALLS AND AT MEETINGS
DELIVERABLES
1. DEPLOYMENT OF THE WWW.EXPERTPRACTICE WEB SITE (VERSION 1)
o Phase I - ExpertPractice Architectural Envisioning
Links to products, outside partners or vendors:
a) RPM/ITS
b) HOTSPACE
c) RISK MANAGEMENT
d) SNAPPNET
e) CREDENTIALSAGENT
f) CREDENTIALS PROFILE
o Phase II - Application and Data Architecture development
o Phase III - Implementation
2. MODIFICATIONS TO THE VERSION 1 OF WWW.EXPERTPRACTICE WEB SITE TO ADD OR
MODIFY THE FOLLOWING LINKS TO SERVICES/PRODUCTS TO PRODUCT (VERSION 2);
g) CLICKTHINGS! (FORMERLY HOTSPACE)
h) SITE ADMINISTRATION PAGES-- PHASE I
3. DEPLOYMENT OF XXXXXXXXXXXXXX.XXX WEB SITE VERSION 3, FUNCTIONAL
SPECIFICATIONS AND TIMELINE FOR THE RELEASE SHOULD BE DELIVERED BY FEBRUARY 1,
2000 THE CURRENT PRODUCTS AND FEATURES DEFINED ARE:
i) MANAGE YOUR PRACTICE(DEFINED AS A PRODUCT)
j) SITE ADMINISTRATION PAGES-- PHASE 2
k) OTHER PRODUCTS, OUTSIDE PARTNERS OR VENDOR
PRODUCTS SHOULD BE DEFINED IN THE FUNCTIONAL
SPECIFICATIONS.
4) WEB SITE AND PRODUCT MANAGEMENT SERVICES -- ONGOING, FOR THE
XXXXXXXXXXXXXX.XXX ECOMMERCE SITE AND ANY PRODUCTS DEVELOPED BY XXXXX.XXX
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SCHEDULE 1-B
FEES and PAYMENT SCHEDULE
DEVELOPMENT SERVICES FEES PER HOUR SERVICES INCLUDE
-------------------- ------------- ----------------
TECHNICAL DEVELOPMENT $ * WEB SITE AND/OR PRODUCT DEVELOPMENT
PROJECT MANAGEMENT $ * PROJECT MANAGEMENT ACTIVITIES
INCLUDING MEETING, VISITS, AND
MANAGEMENT OF PROJECT TEAM.
PRODUCT MANAGEMENT $ * WEBSITE AND/OR PRODUCT MANAGEMENT
* This confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities
and Exchange Act of 1934, as amended.
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