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EXHIBIT 10.4
WEB SITE PROGRAMMING SERVICES
AGREEMENT BETWEEN REGISTRANT
AND THE ADRENALINE GROUP
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February 10, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CEO
▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇▇:
Thank you for selecting the Adrenaline Group as your contractor to develop
▇▇▇▇.▇▇▇'s online entertainment and commerce Web site. We are very excited to
begin working on your project. This letter will summarize the key points of our
previous discussions and will serve as an official agreement about the nature of
our working relationship.
The Adrenaline Group will devote approximately 100 person hours per month over 2
calendar months to your project. Project activities will include planning,
developing, and deploying ▇▇▇▇.▇▇▇'s Web site. Your deliverables will include
planning documents, design documents, source code and executable code.
Contingent upon ▇▇▇▇.▇▇▇'s timely delivery of the site design and content, we
believe that this is sufficient time to accomplish a working Web site.
The cost to you of our services will be $125 per hour beginning Tuesday February
12, 1999. This compensation covers labor only and does not include anticipated
or unanticipated other direct costs, including the costs of hardware and
commercial off-the-shelf software components. We will purchase no of the shelf
hardware or software components without ▇▇▇▇.▇▇▇'s prior consent. The payment
schedule and terms are as follows:
Payment Billing Date Amount Description Due
1 February 2, 1998 $5,000 Project Initiation N/A
2 March 1, 1998 Hourly at $125/hr Month 1 completion Net 15
3 April 1, 1998 Hourly at $125/hr Month 2 completion Net 15
This offer is good for 15 DAYS. Please call me if you have any questions. We
look forward to working with you.
Sincerely,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
The Adrenaline Group, Inc.
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CONFIDENTIAL INFORMATION. DO NOT REDISTRIBUTE.
THE ADRENALINE GROUP, INC.
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PROJECT ACTIVITIES
1. Coordinate procurement of hardware and software
2. Coordinate activities with Germane Systems, Global Center and other
relevant product and service vendors
3. Install, configure, test and debug Web server, email server, database
server and other development and administration software tools
4. Design and deploy Oracle database
5. Deploy tape backup system
6. Document system configuration
7. Deploy online Web content including HTML, GIF/JPEG images, PDF documents,
and Word documents
8. Develop, deploy and test an online open member registration system
9. Coordinate with Certificate Authority in order to configure SSL based
secure Web site
10. Coordinate with Merchant Services Provider in order to configure Web based
credit card billing services
11. Plan and document scalable, multi-server system architecture
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CONFIDENTIAL INFORMATION. DO NOT REDISTRIBUTE.
THE ADRENALINE GROUP, INC.
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Services Agreement page 3 of 6
THIS PROGRAMMING SERVICES AGREEMENT (this "Agreement") is made and entered into
this February 2, 1999, by and between The Adrenaline Group, Inc., a corporation
with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter "Vendor") and
▇▇▇▇.▇▇▇, Inc., a corporation with offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter "Customer").
1. Definitions. For purposes of this Agreement, the following capitalized
terms shall have the meaning ascribed to them below:
CODE shall mean computer-programming code. Unless otherwise specified, Code
shall include such computer programming code in both object code and source
code forms.
CONFIDENTIAL INFORMATION shall mean web site content, ▇▇▇▇.▇▇▇ business
strategies and documentation, DELIVERABLES (including drafts and associated
materials), product design and functionality, concepts and definitions and
any other information that Customer indicates to be confidential and Vendor
acquires (as a result of disclosure by Customer, access to Customer
facilities, analysis of Customer's products or enhancements, or otherwise)
in connection with the SERVICES.
DELIVERABLES shall mean all CODE, DOCUMENTATION, and other media,
materials, or other objects produced as a result of the Services or
delivered by Vendor in the course of providing the SERVICES.
DOCUMENTATION shall mean any written materials that relate to particular
Code or the programming or development thereof, including materials useful
for design (for example, logic manuals, flow charts, and principles of
operation).
SERVICES shall mean programming and development services relating to
existing and planned products and enhancements of Customer or Customer's
customers, whether heretofore or hereafter provided by Vendor.
2. Scope of Services; Compensation. All Services provided by Vendor shall be
subject to this Agreement, unless otherwise agreed upon by both parties in
writing.
The Services may be described more specifically in statements of work set
forth in writing and signed by both parties.
The terms for compensation of Vendor shall be agreed upon by both parties
in writing. Customer shall be responsible for reimbursement of expenses
incurred by Vendor only as stated in such agreement.
3. Confidential Information. Vendor shall receive and hold all Confidential
Information in trust and confidence for Customer. Vendor may not use any
Confidential Information except as authorized by Customer and for the
benefit of Customer. Vendor may disclose Confidential Information only to
those employees who have a "need to know" in order to help Vendor perform
the Services and who are legally bound to maintain the confidentiality of
the Confidential Information.
Vendor shall be responsible for the safekeeping of all materials and media
containing Confidential Information and shall account for such materials
and media at Customer's request. So long as Vendor uses reasonable efforts
to maintain the confidentiality of Customer's
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CONFIDENTIAL INFORMATION. DO NOT REDISTRIBUTE.
THE ADRENALINE GROUP, INC.
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Confidential Information and materials, Vendor shall not be liable for
disclosure or theft of such Information or materials by third parties who
obtain the Confidential Information or materials by improper means.
The foregoing confidentiality obligations shall remain in effect until two
(2) years after any relevant Services are completed or terminated and
Vendor has delivered to Customer or destroyed the materials and media
containing Confidential Information associated with such Services.
Notwithstanding the previous sentence, Vendor will respect in perpetuity
all applicable copyrights and trademarks of Customer.
4. Rights in Deliverables. All Deliverables shall be deemed to be works made
for hire and shall belong exclusively to Customer and its designees. If by
operation of law any of the Deliverables, including all related
intellectual property rights are not owned in their entirety by Customer
automatically upon their creation, then Vendor agrees to assign, and hereby
assigned, to Customer and its designees the ownership of such Deliverables,
including all related intellectual property rights.
Customer may obtain and hold in its own name copyrights, registrations, and
other protection that may be available in the Deliverables. Vendor agrees
to provide any assistance required to perfect such protection. In addition,
any know-how or programming techniques learned, developed or discovered by
Vendor during performance of these services shall remain the intellectual
property of the Vendor.
Vendor may include in the Deliverables preexisting materials only if such
pre-existing materials are either provided by Customer or if they are owned
or licensable without restriction by Vendor. To the extent that preexisting
materials owned or licensed by Vendor are included in the Deliverables,
Vendor shall identify any such materials prior to commencement of the
services involving such materials. Vendor grants to Customer (as an
exception to the transfer and assignment provided in the first paragraph of
this Section) and irrevocable, non-exclusive, worldwide, royalty-free right
and license to use, execute, reproduce, display, perform, and distribute
(internally and externally) copies of, and prepare derivative works based
upon, such materials, and the right to authorize others to do any of the
foregoing.
5. 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 or until earlier
terminated as provided herein.
B. Vendor'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 fifteen
(15) 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.
(iii) Services or disrupted for more than thirty (30) days due to
death, disability or departure of principal developer(s).
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CONFIDENTIAL INFORMATION. DO NOT REDISTRIBUTE.
THE ADRENALINE GROUP, INC.
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C. Section 3, Confidentiality, shall survive the expiration or termination of
this Agreement. In the event of early termination due to Vendor's default
or pursuant to subsection B. (iii). above. Vendor agrees to deliver the
Software then completed. In addition, should Customer default in making
payment to Vendor for services completed, Vendor may, at its option,
recover all outstanding fees owed plus reasonable interest or have all
right, title and interest in any deliverables reverts back to Vendor.
D. If the Agreement is terminated due to the death or disability of one of
Vendor's Developers, then Vendor shall deliver that part of the Software
then completed, provided payment is made by Customer for such completed
part.
6. 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 Customer to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CEO
▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq
▇▇▇▇▇ and ▇▇▇▇▇▇, Attorneys at Law LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
If to Vendor to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
The Adrenaline Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Or to such other address as identified by a party to the other in writing.
7. 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.
8. Successors. This Agreement shall be binding upon and inure to the benefit
of the successors and assignees of ▇▇▇▇.▇▇▇, Inc. It is understood that
this is a personal services contract and as such The Adrenaline Group shall
not permit this contract to be assigned to or performed by any other party.
9. 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.
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CONFIDENTIAL INFORMATION. DO NOT REDISTRIBUTE.
THE ADRENALINE GROUP, INC.
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10. General Provisions. Each party warrants that it is and will remain free of
any obligations and restrictions that would interfere or be inconsistent
with its performance of the Agreement.
Vendor agrees to take further actions and execute and deliver such further
agreements or other instruments as Customer may reasonably request to give
effect to the ownership and license provisions of Section 4 of this
Agreement.
References to "Vendor" in this Agreement shall include any majority-owned
or controlled subsidiary or affiliate. Except of such subsidiaries or
affiliates, Vendor may not subcontract the services without Customer's
prior written consent.
This Agreement supersedes all other communications, understandings and
agreements relating to the subject matter hereof. It may be amended only in
writing.
This Agreement shall be governed by the laws of the State of Virginia as
they pertain to a contract executed, delivered, and performed in that
State.
In WITNESS WHEREOF, this Agreement has been executed and delivered by
authorized representatives of both parties as of the date first indicated
above.
11. PREEXISTING MATERIALS.
adrenaline.* Java packages
adrenalinex.* Java packages
*backup.bat Oracle backup scripts
Accepted and agreed to:
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President Date
The Adrenaline Group, Inc.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CEO Date
▇▇▇▇.▇▇▇, Inc.
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