EXHIBIT 6.12
TOUCHSCREEN MEDIA GROUP, INC.
SERVICES AGREEMENT
1. PARTIES. This Services Agreement ("Agreement") is between Touchscreen
Media Group, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Touchscreen") and
▇▇▇▇▇▇▇▇.▇▇▇, Inc. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇▇.▇▇▇")
effective as of October 29, 1999 ("Effective Date").
2. RETENTION OF TOUCHSCREEN; PROJECT IDENTIFICATION.
(a) ▇▇▇▇▇▇▇▇.▇▇▇ desires to retain Touchscreen to provide certain
professional services relating to the ▇▇▇▇▇▇▇▇.▇▇▇'s web site ("Web Site").
(b) Touchscreen shall provide services relating to specifications,
information organization and development, graphic design, software development,
architecture and functionality for each Project, as the parties shall agree
which shall be set forth in a separate Statement of Work, in the format attached
("SOW"). Each SOW shall also include the deliverables, fees, reporting
responsibilities and milestones. Any changes to a SOW must be in writing and
signed by the parties.
3. COMPENSATION AND EXPENSES.
(a) ▇▇▇▇▇▇▇▇.▇▇▇ shall pay Touchscreen in accordance with the applicable
SOW. If no time period for payment is identified in the SOW, ▇▇▇▇▇▇▇▇.▇▇▇ shall
pay Touchscreen no later than thirty (30) days after ▇▇▇▇▇▇▇▇.▇▇▇'s receipt of
Touchscreen's invoices. Touchscreen shall invoice ▇▇▇▇▇▇▇▇.▇▇▇ on a biweekly
basis. Except as otherwise provided in the SOW, ▇▇▇▇▇▇▇▇.▇▇▇ shall pay
Touchscreen the final fifteen (15%) for each Project after completion, delivery
and acceptance of the Project to and by ▇▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇▇▇.▇▇▇ agrees to pay
a late fee for all overdue invoices at the rate of one and a half percent (1.5%)
of the outstanding balance per month, or the legal maximum, whichever is lower.
▇▇▇▇▇▇▇▇.▇▇▇ expressly reserves the right to require that any invoice submitted
be supported by reasonable documentation prior to ▇▇▇▇▇▇▇▇.▇▇▇'s acceptance and
payment thereof. Each invoice shall be forwarded to the attention of the
Accounts Payable department at: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. In
no event shall ▇▇▇▇▇▇▇▇.▇▇▇ be obligated to pay Touchscreen for an amount in
excess of the maximum aggregate amount stated in a SOW, without the express
prior written agreement of ▇▇▇▇▇▇▇▇.▇▇▇.
(b) All prices and fees are exclusive of all sales, use, or other
taxes, and shipping, transportation, insurance for deliverables, or other direct
charges, unless specifically stated to the contrary in the SOW. ▇▇▇▇▇▇▇▇.▇▇▇
shall reimburse Touchscreen for reasonable, necessary and actual out-of-pocket
expenses such as travel, lodging, communications and supplies (which may include
administrative expenses or other ▇▇▇▇-up, up to a maximum of 15%, but shall not
include Touchscreen's overhead costs or allocations thereof) except as shall be
approved in advance in writing by ▇▇▇▇▇▇▇▇.▇▇▇.
4. TERM AND TERMINATION.
(a) This Agreement shall remain in effect for so long as Touchscreen is
providing services and/or products under a SOW, unless terminated by one of the
parties as provided herein. Either party may terminate this Agreement if the
other party commits a material breach of this Agreement and fails to cure the
breach within thirty (30) days of written notice from the nonbreaching party. If
▇▇▇▇▇▇▇▇.▇▇▇ fails to pay an invoice within the time specified for payment,
Touchscreen shall have the right, in
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addition to any other rights or remedies, to suspend its services to
▇▇▇▇▇▇▇▇.▇▇▇ under the applicable SOW and any other SOW then in effect, until
receipt of payment, plus interest, from ▇▇▇▇▇▇▇▇.▇▇▇. Any SOW may be terminated
in accordance with this provision, or in accordance with any termination
provisions in the SOW. Notwithstanding any other provision to the contrary
contained in this Agreement, ▇▇▇▇▇▇▇▇.▇▇▇ may at any time terminate the
performance of all or any portion of the services to be provided under any SOW
upon ten (10) days prior written notice to Touchscreen, in which event
▇▇▇▇▇▇▇▇.▇▇▇ shall be obligated to pay only for such portions of the services
actually performed in accordance with such SOW. In such an event, payment must
be made by ▇▇▇▇▇▇▇▇.▇▇▇ to Touchscreen before Touchscreen shall be obligated to
return any ▇▇▇▇▇▇▇▇.▇▇▇ materials to ▇▇▇▇▇▇▇▇.▇▇▇.
(b) Wherever in this Agreement provision is made for the mutual
agreement of the parties with respect to any matter, the parties shall negotiate
in good faith to reach mutual agreement. If the parties are unable to reach
agreement within the time required, then either party may terminate this
Agreement upon not less than thirty (30) days prior written notice to the other
party.
(c) Upon termination of this Agreement or the particular SOW, each
party shall return the other's Confidential Information; ▇▇▇▇▇▇▇▇.▇▇▇ shall pay
Touchscreen all fees owed under this Agreement for products and/or services
provided through the effective date of termination; and Touchscreen shall return
any ▇▇▇▇▇▇▇▇.▇▇▇ materials, equipment and property of any nature.
5. ▇▇▇▇▇▇▇▇.▇▇▇ CONTRIBUTIONS TO DELIVERABLES, REPRESENTATIONS AND
WARRANTIES.
(a) ▇▇▇▇▇▇▇▇.▇▇▇ represents and warrants that all information, text,
graphics and other materials it discloses or delivers to Touchscreen for use in
connection with this Agreement and/or ▇▇▇▇▇▇▇▇.▇▇▇'s Web Site ("▇▇▇▇▇▇▇▇.▇▇▇
Contributions") are the property of ▇▇▇▇▇▇▇▇.▇▇▇ or that ▇▇▇▇▇▇▇▇.▇▇▇ has
secured the necessary rights from the owner of the ▇▇▇▇▇▇▇▇.▇▇▇ Contributions
for their use in connection with this Agreement and/or ▇▇▇▇▇▇▇▇.▇▇▇'s Web Site.
▇▇▇▇▇▇▇▇.▇▇▇ represents and warrants that no ▇▇▇▇▇▇▇▇.▇▇▇ Contributions infringe
any copyright, trademark, trade secret, patent or other right of a third party.
Touchscreen shall be entitled to rely on the accuracy, completeness and
appropriateness of all ▇▇▇▇▇▇▇▇.▇▇▇ Contributions for each Project. Except as
provided above, ▇▇▇▇▇▇▇▇.▇▇▇ makes no other express or implied warranty with
respect to the ▇▇▇▇▇▇▇▇.▇▇▇ Contributions. ▇▇▇▇▇▇▇▇.▇▇▇ disclaims, and
Touchscreen waives all other express or implied warranties, including, without
limitation, the implied warranties of merchantability or fitness for a
particular purpose.
(b) ▇▇▇▇▇▇▇▇.▇▇▇ agrees that if ▇▇▇▇▇▇▇▇.▇▇▇ Contributions for a
Project are not provided in the mutually agreed upon format, reformatting may
alter time-frames and costs for the Project.
(c) Touchscreen represents and warrants to ▇▇▇▇▇▇▇▇.▇▇▇ that: (a) it
will perform the services in accordance with the standards of its profession or
industry, and the scope of work described in the SOW and will use only qualified
personnel and be responsible for the supervision, management and control of all
personnel performing the services; (b) the Works (and each portion thereof,
excluding ▇▇▇▇▇▇▇▇.▇▇▇ Contributions): (i) will not infringe on or violate any
copyright, patent, trademark or any other intellectual property or other
proprietary right of any third party, (ii) will consist only of information that
Touchscreen is authorized to use and to authorize ▇▇▇▇▇▇▇▇.▇▇▇ to use as
contemplated in this Agreement, (iii) will not constitute a libel or defamation
or conflict with any right of privacy or other rights of, and will not cause
injury to, any third party, and will not be obscene, pornographic or otherwise
tortious; (c) Touchscreen has the full and unrestricted right to disclose any
information, knowledge or data disclosed by it to ▇▇▇▇▇▇▇▇.▇▇▇ in the
performance of this Agreement; (d) Touchscreen is free to undertake the services
required by this Agreement, and there is no conflict of interest between
Touchscreen's performance of this Agreement and any obligation Touchscreen may
have to other
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parties; (e) Touchscreen will perform the services in strict compliance with all
applicable laws, regulations and ordinances; (f) Touchscreen will obtain at its
expense all necessary permits, licenses and other consents required for the
performance of the services; (g) if applicable, Touchscreen has caused its
employees to assign to it all their right, title and interest in any invention,
discovery or other work invented, discovered or developed by its employees in or
as a direct result of the performance of this Agreement; and (f) the
deliverables, at no additional charge to ▇▇▇▇▇▇▇▇.▇▇▇ and without any
modifications by ▇▇▇▇▇▇▇▇.▇▇▇ to its hardware, software or firmware, shall be
Year 2000 Compliant. "Year 2000 Compliant" shall mean that the deliverables
shall correctly process, provide and/or receive date data: a) within and between
the twentieth and twenty-first centuries; b) on, before and after February 29,
2000; and c) in any test simulation of those dates, provided that all products
(for example, hardware, software and firmware) used with the deliverables
properly exchange accurate date data with the deliverables.
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6. WEB SITE CONTENT. If any ▇▇▇▇▇▇▇▇.▇▇▇ Contribution and/or other
▇▇▇▇▇▇▇▇.▇▇▇ content, in Touchscreen's reasonable opinion, is defamatory,
threatening, obscene, indecent, patently offensive, violative of the proprietary
rights of a third party or otherwise tortious, then the parties shall negotiate
in good faith to attempt to resolve the matter. If the parties are unable to
reach mutual agreement, then either party may terminate the Agreement in
accordance with Section 4(b) above.
7. ACCEPTANCE AND REMEDY. All deliverables are legally accepted upon
delivery and acceptance by ▇▇▇▇▇▇▇▇.▇▇▇, unless within thirty (30) days after
receipt of a deliverable, ▇▇▇▇▇▇▇▇.▇▇▇ notifies Touchscreen in writing in detail
as to how the deliverable fails to conform to the specifications set forth in
the applicable SOW. If ▇▇▇▇▇▇▇▇.▇▇▇, in its reasonable discretion, determines in
good faith that the deliverable fails to materially conform to those
specifications, Touchscreen shall have thirty (30) days to use its best efforts
to remedy any material nonconformance and to provide a revised deliverable to
▇▇▇▇▇▇▇▇.▇▇▇. If Touchscreen is unable to remedy any such nonconformance after
such thirty-day period, ▇▇▇▇▇▇▇▇.▇▇▇ shall have the right to terminate the SOW
and/or the Agreement and shall be entitled to a full refund of any compensation
paid to Touchscreen in connection with such deliverable.
8. TECHNICAL SUPPORT. Under the terms of a SOW, and at Touchscreen's
standard rates (except during the warranty period specified in Section 10(a)
below, when such technical support shall be provided at no charge), Touchscreen
will provide to ▇▇▇▇▇▇▇▇.▇▇▇ a reasonable level of technical support during the
support hours of 9:00 a.m. to 5:00 p.m., Eastern Time, by telephone, facsimile
and electronic mail by personnel familiar with the operation of ▇▇▇▇▇▇▇▇.▇▇▇'s
Web Site to answer questions, furnish information and render assistance to
▇▇▇▇▇▇▇▇.▇▇▇ in its use and operation and to assist ▇▇▇▇▇▇▇▇.▇▇▇ to resolve
problems in its Web Site. In addition, Touchscreen will make reasonable attempts
to provide technical support outside of its standard support hours if required
on occasion by ▇▇▇▇▇▇▇▇.▇▇▇. In no event shall Touchscreen have any obligation
under this Agreement to respond to inquiries (whether by electronic mail,
telephone or any other means), provide on-line help utilities for, or otherwise
render assistance to any person other than an authorized representative of
▇▇▇▇▇▇▇▇.▇▇▇. Without limiting the foregoing, Touchscreen shall have no
obligation to assist users of the World Wide Web regarding the use or operation
of ▇▇▇▇▇▇▇▇.▇▇▇'s Web Site or server. Any provision of technical support
services by Touchscreen under this section shall not grant to ▇▇▇▇▇▇▇▇.▇▇▇ any
rights to any customization, enhancements, upgrades, or modifications to the
services set forth in a SOW.
9. PUBLIC NOTICE OF WEB SITE CREATOR. ▇▇▇▇▇▇▇▇.▇▇▇ agrees that in its Web
Site, and its marketing materials and press releases about the Web Site,
▇▇▇▇▇▇▇▇.▇▇▇ shall use commercially reasonable efforts to identify Touchscreen
as the developer of the Web Site.
10. DELIVERABLES - LIMITED WARRANTY.
(a) Touchscreen warrants that each deliverable shall materially conform
to its written specifications in a SOW for a period of one hundred eighty (180)
days after delivery to ▇▇▇▇▇▇▇▇.▇▇▇. If, during such limited warranty period,
the deliverable fails to so conform, Touchscreen shall use commercially
reasonable efforts to remedy such nonconformity, replace the deliverable, or
refund the fees Touchscreen received in connection with the deliverable.
(b) No warranty applies to any deliverable which has been damaged or
misused, altered or upgraded by anyone other than Touchscreen. This limited
warranty shall apply only so long as the deliverables are maintained in the same
operating environment set forth in the applicable SOW. The remedies above are
the ▇▇▇▇▇▇▇▇.▇▇▇'s sole and exclusive remedies for a defect in any deliverable.
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(c) Except as expressly provided in this Agreement or an SOW,
Touchscreen makes no other express or implied warranty with respect to the
products, deliverables, services and/or the results obtained from their use by
▇▇▇▇▇▇▇▇.▇▇▇. Touchscreen disclaims, and ▇▇▇▇▇▇▇▇.▇▇▇ waives all other express
or implied warranties, including, without limitation, the implied warranties of
merchantability or fitness for a particular purpose.
11. OWNERSHIP AND USE OF DELIVERABLES.
(a) Touchscreen agrees that all technology, technical know-how and
software including but not limited to, development tools, programming
techniques, standardized routines, structures, algorithms, processes, designs,
screen displays, menus and interface designs made or conceived by Touchscreen,
whether or not patentable or copyrightable, and whether made solely by
Touchscreen or jointly with others, which are delivered pursuant to, result
directly or indirectly from, or are suggested by any SOW or which result from
information derived from ▇▇▇▇▇▇▇▇.▇▇▇ or its employees, agents or other
consultants shall hereinafter be referred to as "Works". Touchscreen shall
promptly communicate all Works to ▇▇▇▇▇▇▇▇.▇▇▇ in writing. All Works (or any
part thereof) which are subject to copyright shall be deemed "works made for
hire" specially ordered or commissioned as a contribution to a collective work,
such that ▇▇▇▇▇▇▇▇.▇▇▇ shall be the author and sole owner of all right, title
and interest in and to such Works. To the extent that any Works are not deemed
"works made for hire", and further, with regard to any Works that Touchscreen
acquires ownership of from third parties, this Agreement shall operate as
Touchscreen's irrevocable assignment to ▇▇▇▇▇▇▇▇.▇▇▇ of all right, title, and
interest (including any copyright) in such Works in perpetuity. Touchscreen
shall cooperate with ▇▇▇▇▇▇▇▇.▇▇▇ in executing such documents or taking such
other steps that ▇▇▇▇▇▇▇▇.▇▇▇ deems necessary or appropriate to record or
otherwise memorialize such assignment, including all steps necessary to obtain a
patent (if applicable). As between Touchscreen and ▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇.▇▇▇
shall own all other aspects of the Works. ▇▇▇▇▇▇▇▇.▇▇▇ shall own (and
Touchscreen hereby assigns to ▇▇▇▇▇▇▇▇.▇▇▇ all of Touchscreen's right, title,
and interest to) any trademark, service ▇▇▇▇, logo, character, design, etc.
created or acquired for, or otherwise first used in connection with the Works.
This Section shall not grant ▇▇▇▇▇▇▇▇.▇▇▇ any rights in any established
Touchscreen trademark, service ▇▇▇▇, or logo that Touchscreen uses in connection
with the Works.
(b) Notwithstanding the foregoing, nothing herein shall be construed to
vest in ▇▇▇▇▇▇▇▇.▇▇▇ ownership of any right, title or interest in that portion
of the Works developed by Touchscreen prior to the commencement of work
hereunder (collectively "Touchscreen's Pre-existing Software Tools"); however,
Touchscreen hereby grants to ▇▇▇▇▇▇▇▇.▇▇▇ a non-exclusive, worldwide,
royalty-free, irrevocable license in perpetuity to use the Touchscreen
Pre-existing Software Tools in connection with the ▇▇▇▇▇▇▇▇.▇▇▇ Web Site;
provided ▇▇▇▇▇▇▇▇.▇▇▇ is not in material breach of the terms of this Agreement.
(c) ▇▇▇▇▇▇▇▇.▇▇▇ hereby grants Touchscreen a perpetual, non-exclusive
license to use the technology, technical know-how, software, development tools
and programming techniques developed by Touchscreen to create the Works
hereunder in connection with other projects Touchscreen may develop for third
parties; provided that (i) such third parties are not in the business of
providing political information or services, (ii) Touchscreen, when practicable,
endeavors to notify ▇▇▇▇▇▇▇▇.▇▇▇ of its intent to use such technology for such
other projects and to negotiate a license fee payable to ▇▇▇▇▇▇▇▇.▇▇▇ for the
use of such technology, and (iii) Touchscreen is not in material breach of the
terms of this Agreement.
(d) The source code for the Web Site and for the services rendered by
Touchscreen hereunder (except for the source code for Touchscreen's Pre-Existing
Software Tools) shall be delivered
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to ▇▇▇▇▇▇▇▇.▇▇▇ as part of any deliverable under any SOW and shall be owned by
▇▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇▇▇.▇▇▇ hereby grants Touchscreen a non-exclusive,
world-wide, royalty-free, non-transferable, perpetual license to use such source
code for its own business purposes, subject to the limitations set forth in this
Agreement including, but not limited to, the limitation on using such technology
for other projects for other parties set forth in Section 11(c) above.
(e) Any customization of the Web Site by ▇▇▇▇▇▇▇▇.▇▇▇ or any use of the
above-described source code by ▇▇▇▇▇▇▇▇.▇▇▇ or a party other than Touchscreen
shall void the limited warranties provided in this Agreement.
12. CONFIDENTIALITY.
(a) During this Agreement, each party may have access to information
that is considered confidential by the other. This information may include
technical know how, technical specifications, software object code and source
code, protocols, strategic business plans, results of testing, systems,
financial information, product information, methods of operation, compilations
of data, and third party confidential information ("Confidential Information").
(b) Each party shall use the other's Confidential Information only for
the purposes of, and in performance of its obligations under, this Agreement
and/or a SOW. Each party shall maintain the confidentiality of the other party's
Confidential Information in the same manner in which it protects its own
Confidential Information of like kind, but in no event shall either party take
less than reasonable precautions to prevent the unauthorized disclosure or use
of the Confidential Information. Each party may disclose such Confidential
Information to its attorneys and auditors in the normal course or by reason of
governmental rules or regulations or court proceedings.
(c) Each party is permitted to disclose the other party's Confidential
Information to its employees and subcontractors on a need to know basis only,
provided that such employees and subcontractors have written confidentiality
obligations to that party. Each party shall be responsible for, and shall
indemnify and hold the other harmless from, any damages, expenses or costs
resulting from unauthorized disclosure or use of Confidential Information by its
employees or subcontractors.
(d) The confidentiality provisions of this Agreement do not apply to
information that is in the public domain; was known to the receiving party prior
to access to that information; received lawfully from a third party through no
breach of any obligation of confidentiality owed to the other party; or created
by a party independently of its access to or use of the other party's
Confidential Information.
(e) Upon termination of this Agreement or a party's request, each party
shall return the other party's Confidential Information in its possession and
shall not use the other party's Confidential Information for its own, or any
third party's, benefit. Each party's confidentiality obligations shall survive
termination of this Agreement, and any applicable SOW, for so long as the
Confidential Information remains confidential.
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13. LIMITATION OF LIABILITY. Except as otherwise provided in Section 14
below, in no event shall either party be liable to the other, regardless of the
form of action or theory of recovery for (a) any indirect, special, exemplary,
consequential, incidental or punitive damages, or for lost profits or business
interruption losses, even if such party has been advised of the possibility of
such damages.
14. INDEMNIFICATIONS.
(a) Touchscreen shall, at its sole expense, defend, indemnify, and hold
▇▇▇▇▇▇▇▇.▇▇▇ harmless against any and all third party claims, suits, demands and
actions against ▇▇▇▇▇▇▇▇.▇▇▇ (including reasonable attorneys fees) resulting
from or arising out of Touchscreen's breach of any of its covenants,
representations or warranties or its performance or non-performance under this
Agreement.
(b) ▇▇▇▇▇▇▇▇.▇▇▇ shall, at its sole expense, defend, indemnify, and
hold Touchscreen harmless against any and all third party claims (including
reasonable attorneys fees and expenses) that (1) that ▇▇▇▇▇▇▇▇.▇▇▇ Contributions
and/or other ▇▇▇▇▇▇▇▇.▇▇▇ content infringes a third party's intellectual
property rights; and/or (2) that ▇▇▇▇▇▇▇▇.▇▇▇ Contributions and/or other
▇▇▇▇▇▇▇▇.▇▇▇ content are obscene, pornographic, threatening, defamatory,
libelous, slanderous, or otherwise tortious.
(c) To receive indemnification, the party seeking indemnification must
provide the other party with prompt written notice of the claim, must allow the
other party to have sole and exclusive control of the defense and/or settlement
of the claim, and must cooperate with the other party, at the other party's
expense, in the defense and/or settlement of the claim. This provision states
each party's sole and exclusive remedy and obligations for indemnification
regarding the above referenced claims.
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15. RELATIONSHIP OF THE PARTIES. The relationship created by this Agreement
is that of independent contractor, and nothing in this Agreement shall
constitute the parties as joint venturers, partners, employees, or agents of
each other.
16. NO EMPLOYEE SOLICITATION. During the term of this Agreement and for a
period of one (1) year after its termination, each party agrees not to hire,
solicit for hire, or use the services of any individuals who were or are
employees of the other party during the term of this Agreement. Each party
stipulates to the reasonableness of this provision to protect the legitimate
interests of each party in its workforce.
17. INSURANCE. Touchscreen represents that it shall at all times during the
term of this Agreement have insurance in effect in the minimum amounts and
coverage as are standard in its industry, including without limitation, Worker's
Compensation, and providing that no cancellation, reduction in amount or
material change in coverage thereof shall be effective until at least ten (10)
days after receipt by ▇▇▇▇▇▇▇▇.▇▇▇ of written notice thereof. Such notice shall
be forwarded to: ▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: Legal. In the event of any such change, ▇▇▇▇▇▇▇▇.▇▇▇ may require
Touchscreen to obtain said minimum amounts and coverages from another acceptable
carrier. Touchscreen agrees to submit copies of such insurance policies to
▇▇▇▇▇▇▇▇.▇▇▇ upon request.
18. ADVERTISING. Touchscreen shall not in any way or in any form publicize
or advertise the fact that it is performing the services without the prior
written consent of ▇▇▇▇▇▇▇▇.▇▇▇, provided that Touchscreen, without such
consent, may include ▇▇▇▇▇▇▇▇.▇▇▇ in any representative listing of its clients.
19. ASSIGNMENT. Neither this Agreement nor any interest under it shall be
assignable by Touchscreen, nor shall Touchscreen subcontract with, or otherwise
delegate duties to, any other party for the provision of the services, or any
part thereof, without ▇▇▇▇▇▇▇▇.▇▇▇'s prior written consent. Any purported
assignment or delegation by Touchscreen without such consent shall be void.
20. GENERAL PROVISIONS.
(a) This Agreement, all SOWs, and any addenda thereto, contain the
entire understanding of the parties with respect to the subject matter addressed
herein and supersedes and merges all prior understandings, agreements, promises
and representations, whether written or oral, relating thereto. No alteration,
modification or amendment of any provision of this Agreement or a SOW shall be
binding unless in writing and signed by an authorized representative of each
party. Neither this Agreement, nor any SOW, shall be amended by Touchscreen's
receipt of purchase orders or other administrative documents, regardless of
Touchscreen's failure to object to such form.
(b) This Agreement shall be governed by the laws of the State of New
York, without regard to its conflicts of laws, and the copyright, trademark, and
patent laws of the USA. The parties consent to the exclusive jurisdiction of the
Federal or State courts located in New York City.
(c) Any waiver of a party's right or remedy related to this Agreement
must be in writing, signed by that party to be effective. No waiver shall be
implied from a failure of either party to exercise a right or remedy. In
addition, no waiver of a party's right or remedy will effect the other
provisions of this Agreement.
(d) All notices must be in writing and sent either by hand delivery;
messenger; certified mail, return receipt requested; overnight courier; or by
facsimile (with a confirming copy) and shall be effective when received by such
party at the address listed above or other address provided in writing.
III-47
(e) All provisions of this Agreement and any SOW relating to
confidentiality, ownership, indemnification, and limitations of liability or
where the context would otherwise require survival shall survive the termination
of this Agreement and the SOW.
(f) If any provision of this Agreement and/or a SOW is held by a court
of competent jurisdiction to be invalid or unenforceable, such provision will be
enforced to the extent it is not in violation of such law or is not otherwise
unenforceable and all other provisions shall remain in full force and effect.
ACCEPTED AND AGREED:
TOUCHSCREEN MEDIA GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
(signature)
Name: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
(printed)
Title: President
-------------------------------------
(printed)
▇▇▇▇▇▇▇▇.▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
(signature)
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
(printed)
Title: President
-------------------------------------
(printed)
III-48
STATEMENT OF WORK
CLIENT: ▇▇▇▇▇▇▇▇.▇▇▇
PROJECT: CIT
DATE: OCTOBER 29, 1999
--------------------------------------------------------------------------------
A) DESCRIPTION OF PROJECT:
Over the past five months, it has been both a challenging and rewarding
opportunity to work with the ▇▇▇▇▇▇▇▇.▇▇▇ team. Our collective strength has put
▇▇▇▇▇▇▇▇.▇▇▇ in a unique position to gain significant share and recognition on
the Internet. We are very proud to be a part of this accomplishment and thank
you for giving us this opportunity.
As ▇▇▇▇▇▇▇▇.▇▇▇ continues to execute on a very aggressive business strategy, we
have recognized the necessity to respond to your needs with a proposal to create
a core team of dedicated resources to support your application development
needs.
Our goal is to make it easier for ▇▇▇▇▇▇▇▇.▇▇▇ to do business with Touchscreen
by providing a dedicated pool of resources while providing a more cost-effective
solution to ▇▇▇▇▇▇▇▇.▇▇▇. This core team will be focused on maintaining and
enhancing the ▇▇▇▇▇▇▇▇.▇▇▇ web site, as ▇▇▇▇▇▇▇▇.▇▇▇ becomes more
self-sufficient overtime.
The objectives of this team are to:
I. Develop a team of resources with deep knowledge of ▇▇▇▇▇▇▇▇.▇▇▇'s business.
2. Provide a single point of contact for site development that ensures plans
are executed in a consistent and timely manner.
3. Ensure that communication is convenient and easy for ▇▇▇▇▇▇▇▇.▇▇▇
4. Deliver a team of resources in order to respond rapidly to market demands
and mission critical requirements.
TOUCHSCREEN MEDIA GROUP
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ TEL:
▇▇▇.▇▇▇.▇▇▇▇ FAX: ▇▇▇.▇▇▇.▇▇▇▇
--------------------------------------------------------------------------------
NEW MODELS FOR NEW MEDIA
III-49
The following is a description of the core team members and the activities they
will perform to support ▇▇▇▇▇▇▇▇.▇▇▇. In addition to this team, the Touchscreen
management team will allocate 10% of heir time to ▇▇▇▇▇▇▇▇.▇▇▇, these managers
include: Executive Producer, Creative Director, Chief Technology Officer, and
Technical Services Manager.
--------------------------------------------------------------------------------
INDIVIDUAL ACTIVITIES
--------------------------------------------------------------------------------
STRATEGY & - Understand ▇▇▇▇▇▇▇▇.▇▇▇ business, objectives, and
PLANNING industry
- Communicate the strategic vision of ▇▇▇▇▇▇▇▇.▇▇▇ to
the core team
- Proactively identify/recommend new opportunities
that support the business strategy
--------------------------------------------------------------------------------
PROJECT - Overall project management responsibilities
MANAGER - Development of production documentation - flow
charts, functional specification, blueprint, testing
plans, etc...
- Production and implementation schedule
- Work flow and resource management
- Time accounting, budget management and status
reports
- Participation in strategy and marketing projects
--------------------------------------------------------------------------------
CREATIVE - Graphic production
DESIGNER - Animation production
- Audio and video compression (streaming media)
--------------------------------------------------------------------------------
APPLICATION - HTML Programming
PROGRAMMER - Database development
- Web server Programming
- Systems Integration
- Multimedia programming
- Application development
- Testing and debugging
--------------------------------------------------------------------------------
TECHNICAL - Server configuration
SERVICES - Hardware and software configuration and support
- Systems administration
--------------------------------------------------------------------------------
TESTER & - Test function
ADMINISTRATION - Test content
- Test performance
- Test usability
- Feedback documentation
- Site Statistics documentation
- General project team support
--------------------------------------------------------------------------------
B) PROJECT COMMENCEMENT DATE:
This project will commence upon the execution of this SOW. Target date is
November 1, 1999.
TERM OF PROJECT:
Ongoing
C) DELIVERABLE ITEMS:
This is an ongoing development assignment. Work will be defined as it is
identified. Progress Reports will indicate deliverables and schedules.
COMPLETION AND DELIVERY DATE FOR DELIVERABLE ITEMS:
See progress report weekly.
III-50
D) THE PROJECT SERVICES WILL BE PROVIDED BY THE FOLLOWING EMPLOYEES OF
CONTRACTOR:
As we launch the Continuous Improvement team into place, we will support it with
the following employees:
------------------------------------------------- ------------------------------
MANAGEMENT EMPLOYEE
------------------------------------------------- ------------------------------
Vice President- Consultant ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------------- ------------------------------
Executive Producer ▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------- ------------------------------
Creative Director ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------- ------------------------------
Chief Technology Officer ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------- ------------------------------
Technical Services Director ▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------------- ------------------------------
CIT - FULL - TIME TEAM
------------------------------------------------- ------------------------------
Project Manager ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------------- ------------------------------
Creative Designer ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------------- ------------------------------
Cold Fusion/HTML Programmer ▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------- ------------------------------
Cold Fusion/HTML Programmer ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------------- ------------------------------
Tester/Administrative Assistant ▇▇▇▇▇▇ ▇▇▇
Please note that the team members may change from time to time.
COMPENSATION RATE AND CALCULATION METHOD:
------------------------------------------ ------------------ ----------------------- ---------------- ---------------
MANAGEMENT % WEEKLY HOURS RATE TOTAL
------------------------------------------ ------------------ ----------------------- ---------------- ---------------
Vice President - Consultant 20% 8 $270 $ 2,160
------------------------------------------ ------------------ ----------------------- ---------------- ---------------
Executive Producer 10% 4 $200 $ 800
------------------------------------------ ------------------ ----------------------- ---------------- ---------------
Creative Director 10% 4 $135 $ 540
------------------------------------------ ------------------ ----------------------- ---------------- ---------------
Chief Technology Officer 10% 4 $205 $ 820
------------------------------------------ ------------------ ----------------------- ---------------- ---------------
Technical Services Director 10% 4 $135 $ 540
------------------------------------------ ------------------ ----------------------- ---------------- ---------------
CIT - FULL - TIME TEAM
------------------------------------------ ------------------ ----------------------- ---------------- ---------------
Project Manager 100% 40 $125 $ 5,000
------------------------------------------ ------------------ ----------------------- ---------------- ---------------
Creative Designer 100% 40 $ 85 $ 3,400
------------------------------------------ ------------------ ----------------------- ---------------- ---------------
Cold Fusion/HTML Programmer 100% 40 $180 $ 7,200
------------------------------------------ ------------------ ----------------------- ---------------- ---------------
Cold Fusion/HTML Programmer 100% 40 $180 $ 7,200
------------------------------------------ ------------------ ----------------------- ---------------- ---------------
Tester/Administrative Assistant 100% 40 $ 60 $ 2,400
------------------------------------------ ------------------ ----------------------- ---------------- ---------------
WEEKLY TOTALS 224 $30,060
------------------------------------------ ------------------ ----------------------- ---------------- ---------------
- ESTIMATED TOTAL COST: $30,060 per week. In the event the CIT team is
required to provide additional hours/staff to meet the needs of the
development schedule, Touchscreen will inform ▇▇▇▇▇▇▇▇.▇▇▇ by providing a
"statement of work" (SOW). Upon written approval of the SOW, Touchscreen
will assign the resource for this additional work.
- MAXIMUM AGGREGATE AMOUNT PAYABLE UNDER THIS SOW WITHOUT FURTHER APPROVAL:
$30,060 per week.
E) PROGRESS REPORT AND COST ACCRUAL SCHEDULE:
- Touchscreen will invoice ▇▇▇▇▇▇▇▇.▇▇▇ each week for services and materials.
▇▇▇▇▇▇▇▇.▇▇▇ will provide payment net 10 business days from receipt of
invoices. Weekly payments will be supported with progress reports that
include activities, deliverables, time and materials.
III-51
- As new projects that are outside the scope of the CIT effort are
identified, Touchscreen will "statement of work"(SOW). Upon written
approval of the SOW, Touchscreen will assign the resource for this
additional work. Resource outside the CIT team will be billed at
Touchscreen's published rates.
F) ▇▇▇▇▇▇▇▇.▇▇▇ REPRESENTATIVE:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
AGREEMENT:
- ▇▇▇▇▇▇▇▇.▇▇▇ will transition the development business "in house" and reduce
the development activity at Touchscreen overtime. In order to manage this
transition, ▇▇▇▇▇▇▇▇.▇▇▇ will provide 6 weeks notice when an individual on
the CIT team is to be replaced with a ▇▇▇▇▇▇▇▇.▇▇▇ employee.
- This estimate does not include management or responsibility for work
completed by ▇▇▇▇▇▇▇▇.▇▇▇ employees during the transition period.
- This proposal shall be considered a part of and subject to the terms and
conditions of the "Professional Services Agreement" between Touchscreen
Media Group, Inc. and ▇▇▇▇▇▇▇▇.▇▇▇ dated 10/11/99. With the exception of
the payment terms in this SOW, to the extent that there are any other
inconsistencies in this Statement of Work" (SOW), the "Professional
Services Agreement" will prevail.
Please signify your acceptance of this "Statement of Work" by signing below.
Upon a fully executed SOW, we will commence work.
TOUCHSCREEN MEDIA GROUP, INC. ▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------- -----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------- -------------
Title: President Title: President
--------- ----------
Date: October 29, 1999 Date: November 3, 1999
---------------- -----------------
III-52
▇▇▇▇▇▇▇▇.▇▇▇, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Touchscreen Media Group December 2, 1999
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Dear ▇▇▇▇▇▇:
The following is the agreement we believe ▇▇▇▇▇▇▇▇.▇▇▇, Inc. (the "Company")
reached with Touchscreen Media Group ("Touchscreen") today.
1. The Company currently owes Touchscreen $466,000 for services rendered. The
Company agrees to make the following payments (the "Scheduled Payments") to
Touchscreen for invoiced services: $35,000 by the end of the business day
on December 31, 1999, $85,000 by the end of the business day on January 14,
2000, and $35,000 per week on each Friday thereafter until such date as all
outstanding invoices from Touchscreen to the Company are less than thirty
days old.
2. ▇▇▇▇▇▇ ▇. ▇▇▇▇, Chairman of the Company, will personally guarantee the
Scheduled Payments (up to $550,000), subject however to the terms and
conditions set forth in the Individual Limited Guaranty Agreement dated the
date hereof (the "Guaranty"). ▇▇. ▇▇▇▇'▇ obligations under the Guaranty are
subject to your execution and delivery of this Agreement to the Company.
3. In consideration of ▇▇. ▇▇▇▇'▇ Guaranty, Touchscreen agrees that it will
continue to provide services to the Company in the amount of approximately
$10,000-$12,000 per week. Touchscreen will not be obligated to provide
further services to the Company in the event that the total outstanding
invoices owed by the Company to Touchscreen exceed $550,000 or ▇▇. ▇▇▇▇
defaults under the Guaranty.
4. The Company agrees to pay to Touchscreen 25% of the proceeds of any
offering of securities by the Company upon receipt thereof until such time
as the Company's account with Touchscreen is current (outstanding invoices
less than thirty days old). Any payments made by the Company to Touchscreen
pursuant to this Section 4 shall be applied to reduce the Company's
obligation to make the Scheduled Payments.
5. This Agreement supersedes our prior agreements with respect to the subject
matter hereof.
III-53
If the foregoing correctly reflects our agreement, please execute this Agreement
where indicated below and return a copy to the Company at ▇▇▇-▇▇▇-▇▇▇▇.
Very truly yours,
▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, Chairman
READ AND AGREED TO
TOUCHSCREEN MEDIA GROUP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, a duly authorized
officer
III-54