GIGABLAST PROFESSIONAL SERVICES AGREEMENT
Exhibit 10.3
GIGABLAST
PROFESSIONAL SERVICES AGREEMENT
This
Professional Services Agreement (the "Agreement') is made and entered into
effective as of January 19, 2009 (the "Effective Date") by and between Gigablast
Inc., a Delaware corporation with its principal offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, and So Act Network, Int. ("Customer), a
Delaware corporation with its principal offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
#▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1.1 Gigablast
will provide to Customer the professional services ("Services") that are
described
in the Statement of Work, attached hereto as Exhibit A, (the
'Statement of Work') under the terms and conditions of this Agreement Such
Statement of Work may be amended or modified by supplementary work orders agreed
to in writing by both parties hereto and attached to the Statement of Work, and
thereafter the Services shall be deemed to include the services described in
such supplementary work orders.
1.2 Gigablast
will provide such resources and utilize such employees and/or consultants as
it deems
reasonably necessary to perform the Services. The manner and means used by Gig
ablest to perform the Services are in the reasonable discretion and control of
Gigablast All work shall be performed at Gigablast facilities unless otherwise
mutually agreed. Gigablast shall use commercially reasonable efforts to meet the
schedules and time of performance for the Services as set forth in the Statement
of Work.
1.3 Customer
agrees to provide Gigablast with such information and materials as Gigablast
reasonably
requires in order to perform the Services.
1.4 Customer
and Gigablast agree to cooperate in good faith to achieve completion of the
services in a
timely and professional manner. Customer understands and agrees that Gigablast's
provision of the Services may depend on completion of certain Customer tasks or
adherence by Customer to schedules within Customer's control; consequently, the
schedule for completion of the Services or any portion thereof may require
adjustments or changes in the event Customer changes such tasks or schedules.
Gigablast shall bear no liability or otherwise be responsible for reasonable
delays in the provision of Services or any portion thereof occasioned by
Customer's failure to complete a Customer task or adhere to a Customer schedule.
Subject to the foregoing, Gigablast shall make commercially reasonable efforts
to meet milestone and delivery schedules contained in Exhibit A or any statement
of work.
2. Term of Agreement. The
Agreement portion related to Engine and Network construction commences
on the Effective Date and shall continue until completion of the Services as
described in Exhibit A, unless terminated earlier as provided herein. The
Agreement portion related to Engine and Network hosting commences upon the
launch of the live So Act Search Engine and So Act Network and shall continue
for as long as the parties with to continue the relationship, unless terminated
earlier as provided herein. Gigablast recognizes
that ongoing operation of the So Act Engine and Network is vital to Its success, so in the
event service to Customer's search engine and network is terminated for any
reason, Gigablast agrees to assist in an orderly transition to another provider
at Customers expense to insure no interruption and
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CONFIDENTIAL
no loss
of service to Customer or Customer's customers, including but not limited to
transfer of software and correct ongoing operation of So Act Search Engine and
Network.
3. Service Fees and
Expenses.
3.1 For
the Services provided by Gigablast and subject to the provisions of this
Agreement, Customer
agrees to pay Gigablast the fees set forth in the payment schedule of the
Statement of Work attached hereto plus any applicable sales or use taxes or
other charges as dismissed in Section
3.2. Customer also shall reimburse Gigablast for pre-authorized, actual,
reasonable travel and out-of-pocket expenses incurred for any Services that must
be performed away from Gigablast facilities.
3.2
The amounts payable to Gigablast set forth in the Payment Schedule do not
include any sales taxes. if Customer becomes obligated to pay any sales taxes on
the payments set forth in the Payment Schedule, attached hereto as Exhibit A such
obligation shall not in any way reduce the amounts due and payable to Gigablast
hereunder.
4. Invoicing and Payment.
Gigablast shall receive advance payment retainer of $20,000 for services
to be rendered upon execution of this document. All other charges are to be
billed and itemized with an accounting of the relevant charges on a Net 30 basis
in accordance with the Fees and Expenses outlined hereunder in EXHIBIT A
below.
5. Intellectual Property
Rights.
5.1 As
used herein, the term IP Rights shall mean recognized protectable intellectual
property
such as, without limitation: patents and patent applications, copyrights,
trademarks, trade secrets, mask works, industrial design rights, rights of
priority and any and all other legal rights protecting intangible proprietary
information. Examples of inventions, innovations, and for developments that may
contain protectable IP Rights include, without limitation: formulas, know-how,
algorithms, methods, methodologies, design flows, processes, databases,
mechanical and electronic hardware, electronic components, computers and their
parts, computer languages, computer programs and their documentation, encoding
techniques, articles, writings, compositions, works of authorship, and
improvements.
5.2 Customer
shall own all IP Rights to all software developed by Gigablast and paid for by
Customer
in the Statement of Work ("Software"), with the one exception that Gigablast
will exclusively own any modifications to its search engine source code,
including, but not restricted to, the Gigabit generator modifications as
specified in #19. For the term of this Agreement, Customer has the right to use
all Software for the fees and conditions set forth in the Statement of Work Use
of Gigablast's Search Engine, which includes any modifications to the search
engine source code developed for Customer, is subject to a monthly fee based on
the number of servers employed, and is given in the pricing chart in the
Statement of Work.
5.3 Upon
written notice, Customer may have all Software for which it owns the IP Rights,
transferred
or uploaded to a third party for a transfer fee of $1,000.00.
5.4
Customer agrees to assist and cooperate with Gigablast in all reasonable
respects, and execute all documents and, subject to reasonable availability,
give testimony and take all further acts reasonably necessary to acquire,
transfer, maintain, and enforce Gigablast's IP Rights.
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6.
Limited Warranties and
Exceptions.
6.1 Gigablast
warrants that the Services provided hereunder will be performed in a diligent
and
professional manner and consistent with the quality of Gigablast's performance
of services for similarly situated Customers. In addition, Gigablast represents
and warrants-that the Services will comply in all significant respects with the
specifications provided to Gigablast by Customer.
6.2 THE
WARRANTY ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHICH ARE
EXPRESSLY DISCLAIMED.
6.3 In
order to receive warranty remedies, deficiencies in the Services must be
reported to Gigablast
in writing within 30 days of completion of the Services, and the warranties
above are void to the extent that any deficiency is caused by additions,
modifications or deletions to the Services or Software by Customer or any third
party. Customer's sole remedy shall be to have the deficiencies remedied or to
receive a refund of the pro rata amount of the fees allocable to such Services,
at Gigablast's option.
6.4 in
the event that Gigablast fails to be able to provide the services listed in the
Statement of Work
due to the effective closing of the business, Customer has the right to transfer
all Software, and transfer the object code required to run the Search Engine, to
itself or a third party in order to continue to run the service, provided that
such designee assume full responsibility for protecting all II' rights in the
transferred data.
7.
Termination.
7.1 This
Agreement may be terminated by either party upon 45 days prior written notice if
the other
party materially breaches or fails to perform any material term hereof and the
breaching party fails to cure such breach within the 60-day period;
notwithstanding the foregoing, the cure period for any failure of Customer to
pay fees and charges due hereunder shall be 30 days from the data of receipt by
Customer of any notice of breach relating thereto. In addition to termination
for material breach, Customer may terminate this Agreement for convenience upon
60 days prior written notice to the other party at any time during the term of
the Agreement.
7.2 Each
party's obligations under Sections 3-13 of the Agreement shall survive
termination or
expiration of the Agreement. Within sixty (60) days of termination of this
Agreement for any reason, Gigablast shall submit to Customer an itemized invoice
for any fees or expenses accrued and unpaid under this Agreement prior to the
date of such termination.
B. Indemnification.
Customer's rights to indemnity, if any, with respect to the Software
shall be as set
forth in the License Agreement.
9. Limitations on
Liability. EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 5 AND
8 ABOVE
OR FOR BREACHES OF SECTION 10 BELOW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER FOR SPECIAL, CONSEQUENTIAL INCIDENTAL
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INDIRECT,
PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY,
CONTRACT, TORT NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL GIGABLAST BE
LIABLE TO Customer UNDER THIS AGREEMENT FOR AN AMOUNT IN EXCESS OF THE FEES PAID
HEREUNDER TO GIGABLAST.
10. Confidentiality and
Non-Use.
10.1 Customer
acknowledges its confidentiality obligations with respect to the Software
(including
any Software developed hereunder) as set forth in Section 9 of the License
Agreement. With respect to any other confidential information of a party
disclosed hereunder, each
party agrees that such information shall be deemed Confidential Infomation
hereunder only if
it is clearly marked or otherwise dearly designated as confidential or the
equivalent or confirmed in writing as confidential within ten (10) days
following oral disclosure. However, a party's Confidential Information shall not
include any information that (a) is or becomes a part of the public domain
through no act or omission of the other party; or (b) was in the other party's
lawful possession prior to the disclosure and had not been obtained by the other
party either directly or indirectly from the disclosing party; or (c) is
lawfully disclosed to the other party by a third party without restriction on
disclosure; or (d) is independently developed by the other party by employees or
agents without access to or other use of the party's Confidential
Information.
10.2 Each
party agrees, for the term of this Agreement and five years after its expiration
or termination,
to hold the other party's Confidential information in strict confidence, not to
disclose such Confidential Information to third parties not authorized by the
disclosing party to receive such Confidential Information, and not to use such
Confidential Information for any purpose except as expressly permitted
hereunder. Each party agrees to take all reasonable steps to protect the other
party's Confidential Information to ensure that such Confidential Information is
not disclosed, distributed or used in violation of the provisions of this
Agreement, and shall not disclose such Confidential Information to any person
who has not entered into a written agreement with such party containing
provisions covering the Confidential Information that are at least as protective
as those set forth herein. The foregoing prohibition on disclosure of
Confidential information shall not apply to the extent certain Confidential
Information is required to be disclosed by the receiving party as a matter of
law or by order of a court, provided that the receiving party uses reasonable
efforts to provide the disclosing party with prior notice of such obligation to
disclose and reasonably assists in obtaining a protective order
therefore.
10.3 Each
party recognizes that the other party has received and in the future will
receive from
third parties their confidential or proprietary information subject to a duty to
maintain the confidentiality of such information and to use it only for certain
limited purposes. Each party agrees that it owes to the other party and to such
third parties, during the term of this Agreement and thereafter, a duty to hold
all such confidential or proprietary information in the strictest confidence and
not to disclose it to any person, firm or corporation or to use it except as
necessary in carrying out the provisions of this Agreement and the License
Agreement.
10.4 Upon
the termination of this Agreement and the License Agreement, or upon a party's
earlier
request, the other party shall deliver to the requesting party all of the
requesting party's Confidential Information in tangible form that the other
party may have in its possession or control and certify such return in writing
to the requesting party.
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11. Independent Contractors.
Gigablast shall perform the Services as an independent contractor,
and nothing contained in this Agreement shall be construed to create or imply a
joint venture, partnership, principal-agent or employment relationship between
the parties. Neither party shall take any action or permit any action to be
taken on its behalf which purports to be done in the name of or on behalf of the
other party and shall have no power or authority to bind the other party to
assume or create any obligation or responsibility express or implied on the
other party's behalf or in its name, nor shall such party represent to any one
that it has such power or authority.
12. Governing Law. This
Agreement will be governed by the procedural and substantive laws of
the State of the defendant without regards to its conflicts of laws principles.
This Agreement is prepared and executed and shall be interpreted in the English
language only, and no translation of Agreement into another language shall have
any effect. The parties agree that the
United Nations Convention on Contracts for the International Sale of Goods is
specifically excluded from and shall not apply to this Agreement. Any dispute
hereunder shall be adjudicated in the state and federal courts located in the
state of the defendant and the parties both hereby expressly consent to the
jurisdiction of such courts and to venue in such forum.
13. Miscellaneous.
13.1 Notices. Notices to
be given or submitted by either party to other pursuant to this Agreement
shall be in writing and directed to the other party at such party's address as
set forth above. All notices shall be evidenced by means of a delivery receipt
and shall be effective upon receipt
13.2 Severability. If any term or
provision of this Agreement is determined to be invalid or unenforceable
for any reason, it shall be adjusted rather than voided, if possible, to achieve
the intent of the parties to extent possible. In any event, all other terms and
provisions shall be deemed valid and enforceable to the maximum extent
possible.
13.3 Force Majeure.
Gigablast shall not be liable for any loss, damage, or penalty arising
from
delay due to causes beyond its reasonable control.
13.4 Assignment. Neither
party shall assign, delegate, or subcontract any portion of its rights,
duties,
or obligations under this Agreement without the prior written consent of the
other party, which consent will not be unreasonably withheld or delayed.
Notwithstanding the foregoing, a party may assign any of all of its rights, in
whole or in part, to any corporation, company, partnership or other entity that
controls, is controlled by or is under common control with such
party.
13.5 Export Administration and
Compliance with Laws. Each party agrees to comply fully with all
relevant regulations of the U.S. Department of Commerce and with the U.S. Export
Administration Act to assure that deliverables and technical data are not
exported in violation of United States Law and to comply fully with any other
regulations or laws relating to such export or import into another country.
Customer shall be responsible for any
duties, customs charges or other taxes or fees relating to such export. Each
party shall comply with all applicable laws, rules and regulations in its
performance under this Agreement.
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13.6
Complete Agreement.
This Agreement is the complete and exclusive statement of the Agreement
between the parties regarding the subject matter hereof, which supersedes all
proposals, oral or written, and all other communications between the parties
relating to such subject matter. This Agreement specifically supersedes any
prior Professional Services Agreement that may have been in effect between the
parties.
13.7
Modification. Customer
agrees that any preprinted terms and conditions of any purchase order or other
instrument issued by Customer in connection with the Agreement that are in
addition to or inconsistent with the terms and conditions of this Agreement
shall be of no force or effect. This Agreement may be modified only by a written
instrument duly executed by an authorized representative of Gigablast and
Customer.
13.8
No Waiver. The
failure of a party to enforce any provision of this Agreement shall not
constitute a waiver of such provision or the right of such party to enforce such
provision or any other provision.
13.9.
In the event it becomes necessary or feasible for Company to turn this account
over for collection to our attorney, or collection agency, or in the event court
action is instituted by Company for collection of any items herein, all
collection costs, incurred interest and reasonable attorney's fees will be
payable by Customer.
14.
Facsimile and Email
Copies. All Facsimile
and/or Email copies duly executed in whole or in counterparts are recognized by
the parties as fully binding under any and all applicable laws.
In
witness whereof, the parties hereto have executed this Agreement as of the
Effective Date.
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Name
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Name ▇▇▇▇
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Title CEO
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Title
PRESIDENT
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CONFIDENTIAL
EXHIBIT
A
Statement
of Work (Confidential)
Description
of Services (Confidential):
Gigablast
Inc. will construct social networking software according to specifications as
provided by Customer. Gigabfast will attempt to use open source solutions if it
deems them as timesaving solutions..
Specifications
currently include, but may be modified in the future:
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1.
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Formulate a timeline for the work below |
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2.
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Provide
a weekly progress report. Upload it to a web page or tool used for
measuring progress.
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3.
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A
user accounting system.
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4.
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The ability for one user to connect to another as a "friend'' |
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5.
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The
ability for a user to create and moderate groups which other users can
join, with permission from the
creator.
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6.
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The
ability to message all members of a
group.
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7.
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A
private email module.
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8.
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A
search module so a user can search pages in the network as well as pages
on the web, where the web search does not use inlink information to rank
the search results.
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9.
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The
search module should also quote queries by default. Display unquoted
results below those, with a disclaimer, "The results below are not exactly
quoted matches, but may be
useful'
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10.
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A
commerce module to charge users $40/Year to become members and thus belong
to the "member" group. Commerce module should connect to a billing service
to conduct the actual transaction. PayPal should be supported. Module
should record all transactions and make them easy to
view.
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11.
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A
permission system so a user can control permissions for his/her pages and
files based on groups or
individual users.
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12.
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Initial
groups will include "Media Allies' (members of the press), 'Investors",
"Members", "Public", "Connections" ("friends' of the user, varies from
user to user)
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13.
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A
Inspirational module to display one of 365 personal and life wisdom
success items (quotations, uplifting thoughts, etc.). Only available to
members. There might already be a module for this in ▇▇▇▇.▇▇▇,
etc.
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14.
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Page
Builder Module. Make it easy to create a page describing an Initiate.
Initiative (kind of like a business plan) includes information on the
following topics: Objective, Management, Resources, and Requirements.
Select a stock clip art icon for each topic and then fill in the blanks.
Consider using a "drag & drop" of the clip art so it seems
slick
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15.
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An
alert module to email and message a user when new results match his/her
query. Used to aid in connecting users. One user may have certain
resources that another user
requires.
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CONFIDENTIAL
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16.
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Allow
creation of other pages and files that go into more detail about the initiative
but are meant only for non-public
groups.
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17.
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An
advertising system only usable by members. Investigate open source
solutions for this_
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18.
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A
module for doing press releases. Members can pay
$10 (uses Commerce module) and So Act will automatically submit
their press release to various sources which the users has check marked.
Press release will be recorded as a file in case user wants to allow other
groups to view it.
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19.
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Search
module should ultimately ask a series of questions to narrow search
results. For now we will attempt to restrict gigabits to headers, etc. to
obtain an ontology for the search results. If that works well
we will investigate creating a series of questions based on the
generated ontology.
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20.
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When
first searching ask user two select either button #1 or #2. #1 = 'Show me
only ads that relate directly to my exact search", #2 = "No, I do not
like ads". Ask them that once per day. Put buttons at bottom of search
results. Show ads by default.
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21.
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All
non-member (public) users need to give extra information in order to
bypass ads in the search results. If they select the "No thanks" button,
it says "We're happy to give you a fabulous more relevant and intuitive
search experience with no ads but first we ask that
you give us an email and your age range. We also ask that you Agree to our
Terms of Service and allow us the option of sending you one non-spam email
a month updating you of developments around the world that will make cur
lives infinitely better on the planet. And don't worry; you can opt out of
the emails at any time in the
future."
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22.
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Show
search results from within the network on top of web search results,
but only for members. Non-members do not get to search the network. Allow
user to keep searching on either the network or the web exclusively by
providing separate "Next 10" links.
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23.
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If
user answers a 10-item demographics questionnaire they receive the So Act
newsletter and get access to the Inspirational
module.
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24.
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Make
the network look similar to ▇▇▇▇▇▇▇▇.▇▇▇ or
▇▇▇▇▇▇▇.▇▇▇ if
simple and possible.
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25.
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Make
a way to send everyone the newsletter to their internal email
address.
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26.
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A
user can pay a one-time fee of $1000 and
$500 annually to be a "Certified Green Member" and be in the
"Green" group. They must e-sign a sworn
statement of accuracy (TBD). Their pages and files will get a boost in the
search results.
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27.
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Write
some software, kind of
like and Instant Messenger, that runs on the desktop. Gives a user
access to their list of connections, who wants to connect to them, chat,
email, alerts and search, just like the web page does, but it a
tighter/smaller space.
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28.
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Investigate
using open source software for the social networking platform, including:
▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇▇▇://▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇ ▇▇▇▇://▇▇▇▇▇▇.▇▇▇
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇/
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29.
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Investigate using open source software/modules for the other components. |
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30.
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Build
a small search engine without using link information to rank indexed
terms. So that for a search, the results are unaffected by link
popularities. Pricing sheet was already given to Customer. Size of cluster
needs to be determined, waiting for Customer on
that.
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31.
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Obtain
Terms of Service from Customer so we can display on the website. 32. Host
the social network service on a single machine using raid level 1. Backup
the server
on a nightly basis to another server located 100 ft. or more away in a
different.
room. The social network service servers are separate from the search
engine servers.
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CONFIDENTIAL
Fees and Expenses: Payment
Terms:
Customer
agrees to the discounted billing rate of $150.00 per hour for all custom
software engineering services rendered by a Gigablast software engineer other
than ▇▇▇▇ ▇▇▇▇▇, and $375.00 per hour for ▇▇▇▇ ▇▇▇▇▇. Customer will provide
Gigablast with a retainer of $20,000.00. When ready to go live Customer will pay
Gigablast a fee of $500 per month to host the Social Network server, which
includes nightly backups mentioned in 32) above.
Pricing
Chart for Search Engine: (These charges begin after launch of So Act Engine
& Network)
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Up to This Many 25KB
Documents in Index (In Millions)
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Max 25KB Pages
Downloaded Per Day (In Millions)
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Max Typical
Queries Per Day
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Flat
Monthly Fee
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| 25 | 1 | 4,000,000 | $3,000 |
| 50 | 2 | 4,000,000 | $4,500 |
| 100 | 4 | 4,000,000 | $6,750 |
| 200 | 8 | 4,000,000 | $10,125 |
| 500 | 16 | 4,000,000 | $15,187 |
| 1000 | 30 | 4,000,000 | $22,781 |
| 2000 | 50 | 4,000,000 | $34,171 |
| 5000 |
100
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4,000,000
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$49,257
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