This is the contract between King & Spalding and CyberNet Communications Corp. for the development of this World Wide Web site. We dedicate this contract to the public domain. We disclaim all warranties, whether express or implied, with respect to this contract.
WORLD WIDE WEB SITE DEVELOPMENT AGREEMENT (WORK FOR HIRE)
THIS WORLD WIDE WEB SITE DEVELOPMENT AGREEMENT (WORK FOR HIRE) ("SDA") is made and entered into as of this _____ day of July, 1995 (the "Effective Date"), by and between King & Spalding (hereinafter "Sponsor"), a Georgia general partnership with offices at 191 Peachtree Street, Atlanta, Georgia 30303-1763, and CyberNet Communications Corp. (hereinafter "Developer"), a Georgia corporation with offices at 3939 Roswell Rd., Suite B-2, Marietta, Georgia 30062:
WHEREAS, Sponsor desires to engage Developer to develop, create, test, and deliver a Web Site (as hereinafter defined) as a work made for hire and to house the Web Site on Developer's Web Server (as hereinafter defined) and make the Web Site available for browsing on the Internet (as hereinafter defined); and
WHEREAS, Developer is interested in undertaking such work; and
WHEREAS, Sponsor and Developer mutually desire to set forth the terms applicable to such work;
NOW, THEREFORE, for the mutual consideration set forth herein, the adequacy of which is hereby acknowledged, Sponsor and Developer, intending to be legally bound, hereby agree as follows:
When used in this SDA, the capitalized terms listed in this Section 1 shall have the following meanings:
1.1 Agreement -- means this SDA, the RFP For Proposed King & Spalding Web Site dated March 19, 1995 ("RFP"), Developer's Response to the RFP dated May 29, 1995 ("Developer's Response"), and all accompanying computer files, attachments, addenda, additions, and the like appended thereto or exchanged therewith.
1.2 Code -- means HTML computer programming/formatting code, any files necessary to make image maps function, and any server code necessary to make forms, buttons, check-boxes, and the like function.
1.3 Deliverables -- means all Code, Documentation, reports, and other materials developed by Developer in the course of its performance under this Agreement, and any other items necessary for the operation of Sponsor's Web Site (other than third-party operating system software, third-party networking software, Web Browsers, and hardware), including all Enhancements thereto.
1.4 Derivative Work -- means a work that is based upon one or more preexisting works, such as a revision, modification, translation, abridgment, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted (including by linking a preexisting work into the Derivative Work so that a Web Browser would display the preexisting work within the Derivative Work), and that, if prepared without authorization of the owner of the copyright in such preexisting work, would constitute a copyright infringement. For purposes hereof, a Derivative Work shall also include any compilation that incorporates such a preexisting work.
1.5 Documentation -- means written or typed materials that relate to Code, including materials useful for design such as logic manuals, flow charts, and principles of operation that may be developed by Developer in the course of its performance under this Agreement.
1.6 Enhancements -- means changes or additions to Code and related Documentation.
1.7 Error -- means any error, problem, or defect resulting from (1) an incorrect functioning of Code, (2) information displayed on a Web Page that does not conform to the information provided by Sponsor, (3) incorrect sequencing of Web Pages, or (4) any failure of the Deliverables to meet specifications.
1.8 HTML -- means the series of commands for formatting Web Pages known as HyperText Markup Language, and shall include any current and future extensions thereto, whether or not the extensions are commonly viewed as "official".
1.9 Internet -- means the world-wide network of computers commonly understood to provide some or all of the following features, among others: electronic mail, file transfers through File Transfer Protocol ("FTP"), Telnet access to local and remote computers, UseNet Newsgroups, Gopher access to information on local and remote computers, Wide Area Information Servers ("WAIS"), and World Wide Web access.
1.10 Outside Web Site -- means any Web Page or other material that can be accessed using a Web Browser and that is not part of Sponsor's Web Site.
1.11 Web Browser -- means software designed to allow interactive access to the World Wide Web (and in some cases to other Internet resources as well), including, without limitation, Netscape Navigator, Mosaic, MacWeb/WinWeb, Cello, and Lynx.
1.12 Web Page -- means a document or file that is formatted using HTML and that is intended to be accessible by Internet users with a Web Browser.
1.13 Web Server -- means the computer or computers that Developer uses to make Web Sites accessible to Internet users approximately 24 hours per day.
1.14 Web Site -- means a series of interconnected Web Pages residing in a single directory on a single Web Server.
1.15 World Wide Web -- means all of the Web Pages that are accessible to a typical computer user with appropriate access to the Internet and a Web Browser.
This Agreement consists of this SDA, the RFP, Developer's Response, and all accompanying computer files, attachments, addenda, additions, and the like appended thereto or exchanged therewith. In interpreting any inconsistencies in this Agreement, this SDA shall control the RFP, the RFP shall control the computer files accompanying Developer's Response, the computer files accompanying Developer's Response shall control the computer files accompanying Sponsor's RFP, and the computer files accompanying Sponsor's RFP shall control Developer's Response. Addenda, attachments, and the like (other than the computer files accompanying Developer's Response and Sponsor's RFP) shall control to the same extent as the documents to which they are attached. Change Orders to this SDA shall control all prior documents and computer files.
3.1 Contract Coordinators -- Each party shall designate the name, address, telephone number, fax number, and e-mail address of a Contract Coordinator. The Contract Coordinator of each party shall be responsible for arranging all meetings, visits, and consultations between the parties, and for the transmission and receipt of Deliverables and technical information between the parties. The Contract Coordinators shall also be responsible for receiving all notices under this Agreement and for all administrative matters such as invoices, payments, and amendments. The Contract Coordinator for Sponsor shall be Leneta Kindrick, King & Spalding, 191 Peachtree Street, Atlanta, Georgia 30303-1763, phone: (404)572-4983, fax: (404)572-5100, e-mail: [e-mail address removed from contract]. The Contract Coordinator for Developer shall be Susan Feingold, CyberNet Communications Corp., 3939 Roswell Road, Suite B2, Marietta, Georgia 30036, phone: (404)518-5711, fax: (404)518-6404, e-mail: [e-mail address removed from contract]. The parties' Contract Coordinators will be available Monday through Friday, 9:00am EST to 5:00pm EST, excluding the lunch hour and a reasonable number of days spent out of the office, and will endeavor to respond within one business day of receipt of any requests for information or requests for decisions that are communicated "live" by telephone between the Contract Coordinators (not over voice mail) or that are communicated by e-mail received and read by the party's Contract Coordinator during those hours.
4.1 Change Orders -- Changes in this Agreement or in any of the Specifications or Deliverables under this Agreement shall become effective only when a written change request is executed by the managing partner of Sponsor (currently Ralph B. Levy), on behalf of Sponsor, and by Developer's Contract Coordinator, on behalf of Developer. Change requests that do not substantially affect the nature of Deliverables, their performance or functionality, and that do not cumulatively extend the due date of the deliverables by more than five (5) days or cumulatively increase the dollar amount of the Agreement by more than 5% may be requested and/or accepted by the parties' Contract Coordinators if in writing. Developer may not decline to accept any change requests that reduce the cost of performance, provided that an equitable adjustment in compensation is made for the out-of-pocket costs of any performance or preparation already undertaken. Developer further may not decline any change requests that increase the cost or magnitude of performance, provided that the changes are reasonable in scope and a commensurate increase in compensation (as measured by the initial prices set in Developer's Response and in this SDA) is fixed.
4.2 Sufficient Writings -- A written Change Order shall ordinarily be typewritten on paper and signed by the authorized representative of each of the parties. For purposes of this Section 4 only, however, an electronic mail message sent by the managing partner of Sponsor or by Sponsor's Contract Coordinator or by Developer's Contract Coordinator to each of the other such parties simultaneously, and an electronic mail message response thereto sent to each of the other such parties simultaneously, shall constitute a sufficient writing only if: (a) the electronic mail message setting forth the proposed Change Order explicitly and prominently states that it is "Proposed Change Order Number [insert number here] pursuant to Section 4 of the SDA" (using that exact language but substituting a number for the phrase "[insert number here]"); (b) the responding electronic mail message explicitly and prominently states that it is an "Acceptance of Proposed Change Order Number [insert number here] pursuant to Section 4 of the SDA" (using that exact language but substituting a number for the phrase "[insert number here]"); (c) the author of the responding electronic mail message is an individual authorized pursuant to this Section 4 to accept a Change Order of that nature; (d) the responding electronic mail message clearly refers to only one specific electronic mail message to which it is responding; (e) the terms of the Change Order, including the work to be done, the timing for that work, and the price for that work, are evident on the face of the two electronic mail messages without reference to any outside materials including, without limitation, other mail messages, Web Pages, documentation, or the like; and (f) the two electronic mail messages reflect complete agreement among the parties on all points mentioned in each electronic mail message. If a series of more than two mail messages leads to agreement between the parties with respect to subject matter that should be written up as a Change Order, the agreement reflected in those mail messages shall not be binding on either party unless and until placed in writing in accordance with the terms of this Section.
NOTICE OF DELAY Developer agrees to notify Sponsor promptly of any factor, occurrence, or event coming to its attention that may affect Developer's ability to meet the requirements of this Agreement, or that is likely to occasion any material delay in delivery of Deliverables including, without limitation, any loss or reassignment of key employees, threat of strike, or major equipment failure.
6.1 Design Per Demonstration Model -- The design of Sponsor's Web Site shall be in substantial conformity with the demonstration Web Site provided on disk with Developer's Response, except as specified in this Section of the Agreement. References herein to the names of specific graphics files and HTML commands refer to the files and commands provided on the demonstration disk submitted with Developer's Response.
6.2 General Specifications -- (a) All graphics used in Sponsor's Web Site shall be in interlaced GIF format. (b) No items in the Web Site shall exceed 640 pixels in width unless otherwise specified herein or agreed in writing by the managing partner of Sponsor. (c) Each page of the Web Site will have the following initial "body" statement: BODY BACKGROUND="marble.jpg" link="#0000ff" vlink="#9932cd". (d) With the exception of the first page of the Web Site, each page of the Web Site will have the transparent graphic "k-s2b.gif" centered at the top of the page (the HTML command to display the graphic will use the "alt" feature of HTML to display the text "King & Spalding" if the graphic cannot be viewed with the user's Web Browser), followed by a Derivative Work of the graphic "gr_ban01.gif" used as a horizontal rule (which shall either span the entire width of the user's page no matter how wide or narrow, if this is possible, or, if this is not possible, which shall be displayed using the "center" command, and which shall use dashes as "alt" text to simulate the horizontal rule if graphics are not displayed), followed by the subject matter of the particular page, followed by a Derivative Work of the graphic "gr_ban01.gif" used as a horizontal rule (spanning the width of the page or centered, as specified above, and using dashes as "alt" text as specified above), followed by a graphical and then a textual button bar to be designed and agreed upon by Sponsor and Developer, each of which shall be centered at the bottom of each page. (e) The graphical button bar that is to appear at the bottom of each page (except the first page) will be a functioning HTML image map with the "alt" text "Navigational button bar". Below the graphical button bar there will appear a centered textual button bar that will read as follows: [Web Site specifications deleted]. The words, but not the brackets, in the textual button bar will constitute links to the appropriate portions of Sponsor's Web Site. (f) All non-transparent graphics (including image maps) used in Sponsor's Web Site shall be displayed with the image's width and height specified in the HTML code. (g) The title for each page will identify the page, and will in most cases also be the first text that appears on the page beneath Sponsor's logo. (h) All materials to be supplied by Sponsor may be provided on floppy disks, by LapLink or similar transfer to a notebook computer or hard drive, or may be sent to developer by modem transfer, FTP transfer, or electronic mail, all at Sponsor's option. If materials are provided on disk(s), Developer agrees to copy the materials to the hard drive(s) on Developer's computer(s) and to promptly return the disks to Sponsor. All text material to be provided by Sponsor may be provided in either text format, PageMaker format, WordPerfect format, "PDF" format, or HTML format, all at Sponsor's option. All graphical material to be provided by Sponsor may be provided in either TIFF, GIF, JPEG, or BMP format, all at Sponsor's option. (i) Developer shall develop Sponsor's Web Site to project the highest professional image. Without limitation, in doing so Developer shall not include any of the following in the Web Site or in Sponsor's directory on Developer's Web Server: text, graphics, sound, or animations that might be viewed as offensive or related in any way to sex or any illegal activities; links to other sites that might be viewed as offensive or related in any way to sex or any illegal activities; impressionistic or cartoon-like graphics (unless provided by Sponsor); invisible text, text that is present only when a "webcrawler" or other web indexing tool accesses the Web Site, or any other type of hidden text, hidden information, hidden graphics, or other hidden materials; or destructive elements or destructive programming of any type. (j) During the time that Developer is developing Sponsor's Web Site, Developer agrees to back-up the work that it is undertaking for Sponsor pursuant to this Agreement no less often than once every three (3) days, and to store such back-up materials in a safe and secure environment, fit for the back-up media, and not located at the same location where Developer is undertaking the work set forth in this Agreement.
6.3 Specifications For Home Page -- Sponsor's Web Site will consist of a Home Page (the "first" page for the Web Site) that can be reached by typing one of the following Uniform Resource Locators ("URLs") into a Web Browser (the quotation marks are not part of the URLs): "[Web Site specifications deleted]" or, if top-level directory access is not available free of additional charge, "[Web Site specifications deleted]". Developer will use its best efforts to register the "[Web Site specifications deleted]" domain name for the benefit of Sponsor (or such other name as may be registrable and acceptable to Sponsor [in which event the registered domain name would be substituted for "[Web Site specifications deleted]" in the domain names specified above]), and will assign all rights thereto to Sponsor. [Web Site specifications deleted] Below the image map there will appear a textual button bar identical to the textual button bar described in paragraph 6.2(e) above. Below the textual button bar there will appear a disclaimer to be specified by Sponsor
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6.13 Accessibility Of Web Site During Construction -- Throughout the construction of the prototype and the final Web Site, the Web Site shall be accessible to Sponsor at the URL "http://www.atlwin.com/ks". Until Sponsor has approved the final Web Site, none of the Web Pages for Sponsor's Web Site will be accessible to end users unless the end users have entered the correct userid and password. Acceptable userids will be [Web Site specifications deleted]. The password for each userid will be [Web Site specifications deleted]. Developer and Sponsor agree to keep this password confidential. If the password becomes available to third parties, Developer will change the password to another password specified by Sponsor. Developer will periodically monitor access to the Web Site during development and will notify Sponsor if there appears to be unauthorized access. If possible, Developer will restrict access to the Web Site during construction to Internet users logged in as [Web Site specifications deleted]
6.14 Project Planning Meetings -- After both parties have signed this SDA, representatives of Developer and Sponsor, to include each party's Contract Coordinator, shall arrange a mutually convenient date and time to meet at Sponsor's Atlanta office to discuss project planning. The parties shall endeavor to hold this meeting within one week after both parties have signed this SDA. Developer shall bring to the initial project planning meeting a typewritten list of the source materials that Sponsor is to provide for the prototype. Provided that the materials specified are in accordance with this Agreement, Sponsor will provide these source materials within one week of the project planning meeting. The parties shall hold a second project planning meeting when Developer provides the first "walk through" for the prototype of Developer's Web Site. At that meeting, Developer shall specify in writing the remaining source materials that Sponsor is to provide. Provided that the materials specified are in accordance with this Agreement, Sponsor will provide these materials within two weeks of the second project planning meeting.
6.15 Timing For Development Of A Prototype -- Developer will prepare a prototype model of Sponsor's Web Site and will have it completed within two weeks after Sponsor has provided the prototype source materials requested by Developer in accordance with this Agreement. The prototype will demonstrate at least one sample of each type of page that will reside within Sponsor's Web Site, and will contain all of the practice area pages relating to Sponsor's Intellectual Property and Technology practice area. Developer will visit Sponsor's Atlanta office and conduct a "walk through" of the prototype at a date and time mutually agreeable to Sponsor and Developer but within one week of the scheduled completion of the prototype. Sponsor shall have one week from the date of the "walk through" to specify changes to the prototype that are necessary to bring it into conformity with specifications as well as additional changes (if reasonable in number and nature) to address issues not contemplated by the specifications. Sponsor may also specify changes that vary from the specifications during this week. If such changes from specifications involve significant additional work, the parties will negotiate a fair price for the work (the fair price shall be judged by reference to the pricing set forth below) or, if the parties cannot agree on a price, Sponsor will, at its sole discretion, either proceed with the initial specifications or call the project to a halt and terminate this Agreement. Developer will implement the changes that Sponsor specifies for the prototype within one week after receiving Sponsor's specification of changes, and will then provide a "walk through" of the revised prototype at Sponsor's Atlanta office at a date and time mutually agreeable to Sponsor and Developer but within one week of the scheduled completion of the changes. Sponsor will then have one week from the date of this second "walk through" to either approve the prototype or specify problems with the changes that need to be corrected to bring the prototype in line with the specifications set forth in the Agreement and in line with Sponsor's earlier specified changes. Developer will have one week from receipt of this specification of problems to correct the problems and conduct another "walk through" at Sponsor's Atlanta Office at a date and time mutually agreeable to Sponsor and Developer but within one week of the scheduled completion of the changes. This process will continue until the prototype is approved in writing by the managing partner of Sponsor or until the project is halted and this Agreement is terminated. Developer shall begin construction of the final Web Site only after Sponsor has approved the prototype. At the sole discretion of Sponsor, Sponsor may elect to review the prototype "on line" at any point in lieu of or in addition to any "walk through", and at any other time.
6.16 Timing For Development Of The Final Web Site -- Developer shall complete the final Web Site within six weeks of approval of the prototype or of receipt of the source materials requested in accordance with this Agreement at the second project planning meeting (whichever is later), and shall conduct a "walk through" of the final Web Site at Sponsor's Atlanta office at a date and time agreeable to Sponsor and Developer but within one week of the scheduled final completion date. As a goal, Developer shall strive to shorten the development time for the final Web Site to four weeks, but Developer shall not be obligated to complete the final Web Site within that time frame if a four week development cycle cannot be achieved. Sponsor shall have two weeks from the date of this "walk through" to specify changes to the final Web Site necessary to bring the Web Site in conformity with specifications. Developer shall have two weeks from receipt of this specification of changes to implement the changes. Developer will then conduct a "walk through" of the revised final Web Site at Sponsor's Atlanta office at a date and time mutually agreeable to Sponsor and Developer but within one week of the scheduled completion of the changes. Sponsor will have one week from the date of this "walk through" to specify problems with the changes. Developer will have one week from receipt of this specification of problems to correct the problems and conduct another "walk through" at Sponsor's Atlanta Office at a date and time mutually agreeable to Sponsor and Developer but within one week of the scheduled completion of the changes. This process will continue until the final Web Site is approved in writing by the managing partner of Sponsor or until the project is halted and this Agreement is terminated in the sole discretion of the managing partner of Sponsor. At the sole discretion of Sponsor, Sponsor may elect to review the construction of the final Web Site "on line" at any point in lieu of or in addition to any "walk through", and at any other time. At or prior to each "walk through" of the prototype and of the final Web Site, Developer shall provide Sponsor with a list of all links in Sponsor's Web Site that link to Outside Web Sites. At any time prior to Sponsor's final approval of its Web Site, Sponsor shall have the right, for any reason, to instruct developer to remove one or more links to Outside Web Sites, and Developer agrees to do so at no additional cost.
6.17 Submission To Index Sites -- At the time that Developer conducts the first "walk through" of Sponsor's final Web Site, Developer will supply Sponsor with a list and description of as many "Index Sites" (i.e.-Web Sites, Web Pages, ListServ lists, FAQs, and similar Internet resources that maintain lists of or information about resources available on the Internet) as Developer can reasonably locate (not to exceed 50) that may be appropriate to list Sponsor's Web Site. At Sponsor's option and convenience, Sponsor will then specify (in writing or by electronic mail) the "Index Sites" to which it would like its Web Site submitted, and Developer will then submit Sponsor's Web Site to the selected "Index Sites" within one week after Sponsor has approved its final Web Site or within one week of Sponsor's selection of the "Index Sites", whichever occurs later.
6.18 Delivery Of Deliverables -- Upon Sponsor's approval of its final Web Site, or upon termination of this Agreement, whichever occurs earlier, Developer shall deliver all Deliverables to Sponsor. Documentation shall be delivered in printed format and in electronic format. Code shall be delivered in electronic format. The transfer of electronic materials shall be accomplished by copying them to media to be supplied by Sponsor or, at Sponsor's option, by modem, FTP, LapLink, or electronic mail transfer. Developer shall maintain its back-ups and one set of the final materials provided to Sponsor for a period of six months after Sponsor's approval of its final Web Site. If this Agreement is terminated prior to final approval, or at the expiration of this six month period, Developer will destroy all of its copies of Sponsor's Web Site (including all back-ups thereof) and "wipe" all files constituting final or working copies of Sponsor's Web Site (other than the final copy hosted on Developer's Web Server and one back-up copy thereof) from Developer's computers and back-up materials unless otherwise directed in writing by the managing partner of Sponsor.
7.1 Server Hosting -- Developer agrees, at Sponsor's option, to maintain Sponsor's Web Site on Developer's Web Server on a month to month basis, and to make maintenance modifications to Sponsor's Web Site from time to time in accordance with Sponsor's directions. Such modifications shall be implemented within two business days of Developer's receipt of Sponsor's changes if the changes are easily implemented, and within three business days of Developer's receipt of Sponsor's changes if the changes are not easily implemented. As part of this service, Developer agrees to make Sponsor's Web Site available to Internet users approximately 24 hours per day, to back-up Sponsor's Web Site at least once every two weeks, and to store said back-up materials in a safe and secure environment, fit for the back-up media, and not located at the same location as Developer's Web Server. Also as part of this service, Developer agrees to use its best efforts to ensure reasonable response times for users accessing Sponsor's Web Site. For purposes of this paragraph, reasonable response times shall be measured as follows: on the first Saturday following Sponsor's final approval of its Web Site, Developer will conduct three tests of the time that it takes to load the home page of Sponsor's Web Site from an IBM compatible computer (with a 16550 UART chip and an Intel 80486 DX33 processor or faster running Windows for Workgroups 3.11 and Netscape Navigator 1.1N with the cache turned off) accessing Sponsor's Web Site over a phone line using a 14,400 baud modem; these tests will take place at approximately 10:00am, 4:00pm, and 10:00pm (the results of these tests will be reported to Sponsor upon completion); reasonable response times means that at all times the time it takes to load the home page of Sponsor's Web Site using a properly configured IBM compatible computer (as set forth above) accessing Sponsor's Web Site over a phone line using a 14,400 baud modem shall in no event exceed twice the average of the three test response times. Upon notice from Sponsor not more often than once each month, and also in the event of Sponsor's termination of its use of Developer's Web Server as the host for Sponsor's Web Site, Developer agrees to transfer a complete copy of Sponsor's then-current Web Site, including all Code therefor, to Sponsor, said transfer to occur by either copying files onto media provided by Sponsor or by modem transfer, FTP transfer, LapLink transfer, or electronic mail. The transfer method will be selected by Sponsor in its discretion no later than 24 hours before the time the transfer is to take place. In the event such transfer results from Sponsor's termination of its use of Developer's Web Server as the host for Sponsor's Web Site, Developer shall maintain one complete electronic version of Sponsor's Web Site, including all Code therefor (and shall "wipe" all other versions thereof off of its computers and media, including back-up copies), until Sponsor's Contract Coordinator or managing partner informs Developer in writing that the transferred files appear to be complete, at which time Developer shall "wipe" its final copy of Sponsor's Web Site off of its computers and media.
7.2 Transaction Logging -- During the time that Sponsor's Web Site is located on Developer's Web Server, Developer shall provide to Sponsor, on a monthly basis and free of charge, one floppy disk or e-mail file (sent to Sponsor's Contract Coordinator) containing a transaction log database, in Comma Separated Value format, setting out the date, time, source IP address, and file, graphic, or other material accessed for each access to Sponsor's Web Site during the month.
7.3 Internet Accounts -- At the time Developer signs this SDA, it shall provide Ralph Levy, Leneta Kindrick, and Adair Dorsey Sisk with free Internet accounts at "jake.atlwin.com". These accounts, along with Brad Slutsky's account, shall be free to the users during the time Sponsor's Web Site is being developed and for two months thereafter. One month prior to the termination of these accounts, Developer shall notify these individuals that their free Internet Accounts will expire in one month, and shall provide them with pricing information and the option to continue their accounts if they so choose. In the absence of payment to renew such accounts, any unpaid accounts shall be terminated one month after such notice of expiration has been sent.
8.1 Total Price -- The total price for all of the work set forth in the Agreement (excluding the Server Hosting and excluding post-approval modifications not implemented by Sponsor) shall be [Web Site specifications deleted]. The total price for development of the Web Site shall not exceed [Web Site specifications deleted], provided that the total number of Web Pages in the site does not exceed [Web Site specifications deleted]. The reasonable size and composition of a Web Page shall be judged by reference to the demonstration Web Sites designed by Sponsor and Developer and included with the RFP and with Developer's Response. This price covers all work of whatever nature on Sponsor's Web Site contemplated in this Agreement (excluding Server Hosting and post-approval modifications not implemented by Sponsor). The price for the Server Hosting shall be [Web Site specifications deleted]. Charges for post-approval modifications to Sponsor's Web Site shall be free if submitted to Developer by Sponsor as "ready to implement" HTML pages, and shall be billed at the rate of [Web Site specifications deleted] if the changes are to be implemented by Developer. The cost of Server Hosting and the hourly rate for additional work shall not increase for a period of one year from the date of Sponsor's acceptance of its final Web Site. For purposes of this paragraph, accesses to Sponsor's Web Site shall mean the number of accesses to individual Web Pages within Sponsor's Web Site reflected in the monthly transaction log that Developer provides to Sponsor; provided, however, that accesses to Sponsor's Web Pages by Developer shall not count as accesses for purposes of this paragraph.
8.2 Invoicing -- When both parties have signed this SDA, Sponsor will forward to Developer a check in the amount of [Web Site specifications deleted], made payable to CyberNet Communications Corp. Upon approval of the prototype, Sponsor will forward to Developer another check in the amount of [Web Site specifications deleted], made payable to CyberNet Communications Corp. Thereafter, Developer shall invoice Sponsor on a bi-weekly basis for the amount of work done during the applicable two week period. The amount due shall be [Web Site specifications deleted]. All payments are due fifteen (15) days after receipt of a properly payable invoice. If there is a dispute with regard to whether work was actually completed or whether an invoice is properly payable, the amount of the invoice in dispute shall not be due until the dispute is resolved.
8.3 Expenses -- The prices set forth above are inclusive of expenses. Except as expressly agreed otherwise in writing by the managing partner of Sponsor, Developer shall bear all of its own expenses arising from its performance of its obligations under this Agreement, including (without limitation) expenses for facilities, work spaces, utilities, management, clerical and reproduction services, supplies, and the like. Sponsor shall have no obligation to provide office space, work facilities, equipment, clerical services, programming services, or the like.
8.4 Most Favored Customer -- Developer agrees that the charges established under this Agreement shall not exceed those offered or imposed with respect to Web Site development projects of similar size and scope undertaken for other customers of Developer during the period that Sponsor's Web Site is under development. If, during the period that Sponsor's Web Site is under development, Developer offers or accepts lower charges for such services involving other for-profit customers, Developer shall so notify Sponsor and remit as a credit to Sponsor the differences between the amount of the payments theretofore made by Sponsor for such services and the amount that would have been payable if such lower charges had been in effect.
8.5 Records And Audit -- Developer shall maintain complete and accurate accounting records to substantiate Developer's charges on each invoice. Developer shall preserve such records for a period of at least one year after completion of the pertinent work. Sponsor shall have access to such records for purposes of audit, either through its own representatives or through an accounting firm selected and paid by Sponsor. Any such review of Developer's records shall be conducted at reasonable times during business hours.
8.6 Partial Payment And Ownership In The Event Of Termination -- If this Agreement is terminated for any reason, Developer shall be entitled to payment for work done up to the date of termination that conforms to specifications (the total of all payments to developer under this Agreement shall not, however, exceed [Web Site specifications deleted]), and Developer shall and hereby does grant to Sponsor in that event all right, title, and interest, including all United States and international copyrights and all other intellectual property rights in the Deliverables in the form in which they exist on the date of termination, which form shall not materially differ from the status described in the invoices and reports that Developer has submitted to Sponsor.
CONFIDENTIALITY AND NON-COMPETITION
9.1 Confidentiality -- Developer shall treat this project as confidential in accordance with paragraph 11.2 below. After Sponsor has approved its final Web Site, however, Developer may list Sponsor as a client of Developer and may include a link to Sponsor's Web Site on Developer's Web Site. Developer may not issue any press release that refers to Developer's work for Sponsor unless the managing partner of Sponsor has previously approved the press release in writing, which approval may be withheld for any reason or for no reason at all. If Developer receives press inquiries regarding Developer's work for Sponsor after Sponsor's approval of the final Web Site, Developer may respond to such inquiries with respect to the work that Developer conducted for Sponsor and any technical questions relating to Sponsor's Web Site, but shall also refer all such inquiries to the managing partner of Sponsor. In no event shall Developer comment on Sponsor's philosophies, motivations, goals, or the like in constructing a Web Site, on items or ideas that Sponsor may have decided not to include in its Web Site, or on disagreements or difficulties (if any should arise) between Developer and Sponsor or between Sponsor and others in connection with this Agreement or the construction of Sponsor's Web Site.
9.2 Non-Competition -- Developer shall be free during and after the development of Sponsor's Web Site to develop Web Sites for any other client. Developer shall not, however, design a Web Site for one of its other clients that "looks and feels" peculiarly like Sponsor's Web Site. Such "look and feel" shall be measured by reference to the degree of presence or absence of any of the following elements: the use of the "marble.jpg" background; the use of similar logos or graphics or similar sizing and placement of logos or graphics; the use of a similar organization scheme for the entire Web Site or for any particular page or section thereof; the use of the same type face for the customer's logo; the gradated coloring of the customer's logo; the organization of the site into sections such as an "About" section, a "Practices" section, an "Articles" section, a "Cases" section, an "Attorneys" or "Employees" section, a "Resources" section, and/or an "Office Locations" section; the use of a "button bar" that is substantially similar to Sponsor's "button bar"; the HTML formatting of previously written articles; the use of descriptive text similar to or organized similar to that of Sponsor; and/or the use of the same or substantially similar links or graphics to convey information about a city or about legal resources. The parties recognize that some elements, such as similar graphics or textual materials, may on their own give rise to a violation of this provision of the Agreement (and may potentially give rise to a violation of intellectual property rights as well), whereas other elements, such as the use of gradated coloring on a logo, could not, by themselves, give rise to a violation of this provision of the Agreement. Developer shall have greater leeway with respect to this paragraph when designing Web Sites for non-legal organizations than when designing Web Sites for legal organizations.
10.1 Bi-Weekly Reports -- With each bi-weekly invoice, Developer shall provide to Sponsor a short written report of the progress of the work to date, any anticipated problems (resolved or unresolved), and any indication of delay in fixed or tentative schedules.
10.2 Site Visits -- Developer shall, from time to time and upon reasonable notice, allow access to its premises by Sponsor for purposes of project review and discussions between Sponsor and Developer's management and personnel concerning the status and conduct of work being performed hereunder.
11.1 No Confidential Information of Developer -- It is understood and agreed that Sponsor does not wish to receive from Developer any confidential information of Developer or of any third party. Developer represents and warrants that any information provided to Sponsor in the course of entering into this Agreement or performing any work hereunder shall not be confidential or proprietary to Developer.
11.2 Confidential Information of Sponsor -- From time to time Sponsor may provide its own confidential business and technical information to Developer in connection with the work to be performed by Developer hereunder. Such information shall be designated as confidential upon or prior to disclosure by Sponsor. In addition, the preparation and specifications of the Deliverables shall in all instances be treated as confidential, unless and until disclosed publicly by Sponsor. Developer shall use its best efforts to prohibit any use or disclosure of Sponsor's confidential information, except as necessary to perform work hereunder.
OWNERSHIP AND RIGHTS
12.1 Ownership of Work Product by Sponsor -- Except as set forth below, all elements of all Deliverables shall be exclusively owned by Sponsor and shall be considered works made for hire by Developer for Sponsor. Except as set forth below, Sponsor shall exclusively own all United States and international copyrights and all other intellectual property rights in the Deliverables.
12.2 Vesting of Rights -- With the sole exception of any Preexisting Works identified in Section 12.3 hereof, Developer agrees to assign, and upon creation of each element of each Deliverable automatically assigns, to Sponsor, its successors and assigns, ownership of all United States and international copyrights and all other intellectual property rights in each element of each Deliverable. This assignment is undertaken in part as a contingency against the possibility that any such element, by operation of law, may not be considered a work made for hire by Developer for Sponsor. From time to time upon Sponsor's request, Developer and/or its personnel shall confirm such assignments by execution and delivery of such assignments, confirmations of assignments, or other written instruments as Sponsor may request. Sponsor, its successors and assigns, shall have the right to obtain and hold in its own name all copyright registrations and other evidence of rights that may be available for the Deliverables and any portion(s) thereof.
12.3 Preexisting Works -- In the event that any portion of any Deliverable (including the entirety thereof) constitutes a preexisting work for which Developer cannot grant to Sponsor the rights set forth in paragraphs 12.1 and 12.2 above, Developer shall specify below: (1) the nature of such preexisting work; (2) its owner; (3) any restrictions or royalty terms applicable to Developer's or Sponsor's use of such preexisting work or Sponsor's exploitation of the Deliverable as a Derivative Work thereof; and (4) the source of Developer's authority to employ the preexisting work in the preparation of the Deliverable.
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The works set forth above will be referred to as "Preexisting Works". The only preexisting works that may be used in the construction of any Deliverable are the Preexisting Works specified above and any Preexisting Works that may be approved in writing by the managing partner of Sponsor prior to their use. Further, before initiating the preparation of any Deliverable that contains one or more such Preexisting Works, Developer shall, at Developer's sole expense, cause Sponsor, its successors, and assigns, to have and obtain the perpetual, irrevocable, nonexclusive, worldwide, royalty-free right and license to (1) use, execute, reproduce, display, perform, distribute internally or externally, sell copies of, and prepare Derivative Works based upon all Preexisting Works and Derivative Works thereof and (2) authorize or sublicense others from time to time to do any or all of the foregoing.
12.4 Indemnification/No Infringement -- In performing services under this Agreement, Developer agrees not to design, develop, or provide to Sponsor any items that infringe one or more patents, copyrights, trademarks, or other intellectual property rights (including trade secrets), privacy or other rights of any person or entity. If Developer becomes aware of any such possible infringement in the course of performing any work hereunder, Developer shall immediately so notify Sponsor in writing. Developer agrees to indemnify, defend, and hold Sponsor, its partners, employees, representatives, agents, and the like harmless for any such alleged or actual infringement and for any liability, debt, or other obligation arising out of or as a result of or relating to (a) the Agreement, (b) the performance of the Agreement, or (c) the Deliverables. This indemnification shall include attorneys' fees and expenses, unless Developer defends against the allegations using counsel reasonably acceptable to Sponsor.
AGREEMENTS WITH EMPLOYEES
No individuals or entities other than Developer and Developer's employees shall undertake any work in connection with this Agreement. Developer shall obtain and maintain in effect written agreements with each of its employees who participate in any of Developer's work hereunder. Such agreements shall contain terms sufficient for Developer to comply with all provisions of the Agreement and to support all grants and assignments of rights and ownership hereunder. Such agreements also shall impose an obligation of confidence on such employees with respect to Sponsor's confidential information. It shall be sufficient compliance with this provision of the Agreement if each such employee reads this Agreement and indicates their consent to abide by its terms by signing and dating this SDA or by initialing and dating this paragraph of this SDA.
REPRESENTATIONS AND WARRANTIES Developer makes the following representations and warranties for the benefit of Sponsor, as a present and ongoing affirmation of facts in existence at all times when this Agreement is in effect:
14.1 No Conflict -- Developer represents and warrants that it is under no obligation or restriction, nor will it assume any such obligation or restriction that does or would in any way interfere or conflict with, or that does or would present a conflict of interest concerning, the work to be performed by Developer under this Agreement. Sponsor understands that Developer is currently working on one or more similar projects for other clients. Provided that those projects do not interfere or conflict with Developer's obligations under this Agreement, those projects shall not constitute a violation of this provision of the Agreement.
14.2 Ownership Rights -- Developer represents and warrants that (1) it is and will be the sole author of all works employed by Developer in preparing any and all Deliverables other than Preexisting Works; (2) it has and will have full and sufficient right to assign or grant the rights and/or licenses granted in the Deliverables pursuant to this Agreement; (3) all Deliverables other than Preexisting Works have not been and will not be published under circumstances that would cause a loss of copyright therein; and (4) all Deliverables, including all Preexisting Works, do not and will not infringe any patents, copyrights, trademarks, or other intellectual property rights (including trade secrets), privacy or similar rights of any person or entity, nor has any claim (whether or not embodied in an action, past or present) of such infringement been threatened or asserted, nor is such a claim pending against Developer (or, insofar as Developer is aware, against any entity from which Developer has obtained such rights).
14.3 Conformity, Performance, and Compliance Developer represents and warrants that (1) all Deliverables shall be prepared in a workmanlike manner and with professional diligence and skill; (2) all Deliverables will function with properly configured Web Browsers such as Netscape, Mosaic, MacWeb/WinWeb, Cello, and Lynx; (3) all Deliverables will conform to the specifications and functions set forth in this Agreement; and (4) Developer will perform all work called for by this Agreement in compliance with applicable laws. Developer will repair any Deliverable that does not meet this warranty within 4 hours if the defect affects the usability of Sponsor's Web Site, and otherwise will repair the defect within 24 hours, said repairs to be free of charge to Sponsor. This warranty shall extend for a period of ten (10) years following Sponsor's acceptance of its final Web Site. This warranty does not cover links that change over time, pages that become obsolete over time, content that becomes outdated over time, or other changes that do not result from any error on the part of Developer.
TERM AND TERMINATION
15.1 Term of Agreement -- This Agreement shall be effective as of the Effective Date and shall remain in force for a period of 99 years, unless otherwise terminated as provided herein.
15.2 Termination of Work -- Sponsor may, at its sole option, terminate any or all work outstanding, or any portion thereof, immediately upon written notice. Upon receipt of notice of such termination, Developer shall inform Sponsor of the extent to which performance has been completed through such date, and collect and deliver to Sponsor whatever work product and Deliverables then exist in a manner prescribed by Sponsor. Developer shall be paid for all work performed through the date of receipt of notice of termination as specified in paragraph 8.6 above. Developer may not terminate any work under this Agreement without the prior written consent of the managing partner of Sponsor, which consent may be withheld for any reason or for no reason at all.
15.3 Survival In the event of any termination of this Agreement, Paragraphs 6.18, 7.1, and 8.6, and Sections 11 through 16 hereof shall survive and continue in effect and shall inure to the benefit of and be binding upon the parties and their legal representatives, heirs, successors, and assigns. The termination of any provision of this Agreement shall not excuse a prior breach of that provision.
16.1 Force Majeure -- Either party shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such party; provided that, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause of such delay or failure.
16.2 No Agency -- Developer, in rendering performance under this Agreement, is acting and shall act solely as an independent contractor. Sponsor does not undertake by this Agreement or otherwise to perform any obligation of Developer, whether by regulation or contract. In no way is Developer to be construed as the agent or to be acting as the agent of Sponsor in any respect, any other provisions of this Agreement notwithstanding.
16.3 Multiple Counterparts -- This Agreement may be executed in several counterparts, all of which taken together shall constitute one single Agreement between the parties.
16.4 Authority To Enter Into Agreement -- The parties and their representatives signing this Agreement hereby acknowledge and represent that the representatives signing this Agreement are duly authorized agents of the parties hereto and are authorized and have full authority to enter into this Agreement on behalf of the parties for whom they are signing.
16.5 Section Headings; Exhibits -- The section and subsection headings used herein are for reference and convenience only, and shall not enter into the interpretation hereof. The exhibits referred to herein and attached hereto, or to be attached hereto, are incorporated herein to the same extent as if set forth in full herein.
16.6 No Waiver -- No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. The terms and conditions of this Agreement may be waived or amended only in writing and only by the party that is entitled to the benefits of the term(s) or condition(s) being waived or amended. A waiver by either of the parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained (whether or not the provision is similar). Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
16.7 Governing Law/Consent To Jurisdiction And Venue -- This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without reference to the choice of law provisions thereof. All aspects of all actions brought relating to the subject matter of this Agreement shall be governed by Georgia law, without reference to the choice of law provisions thereof. The parties hereto hereby consent to the exclusive jurisdiction and venue of the United States District Court for the Northern District of Georgia or the Superior Court of Fulton County for any action that may be brought in connection with this Agreement other than a cross-claim for indemnification brought in response to a claim of infringement filed in another court. In the case of a cross-claim for indemnification, Developer agrees to be subject to the jurisdiction and venue of the court in which the infringement claim is brought, provided that Sponsor is also subject to jurisdiction and venue in that court.
16.8 Entire Agreement -- Each party to this Agreement acknowledges that this Agreement constitutes the entire Agreement of the parties with regard to the subject matters addressed in this Agreement, that this Agreement supersedes all prior or contemporaneous agreements, discussions, or representations, whether oral or written, with respect to the subject matter of this Agreement, and that this Agreement cannot be varied, amended, changed, waived, or discharged except by a writing signed by all parties hereto. Each party to this Agreement further acknowledges that no promises, representations, inducements, agreements, or warranties, other than those set forth herein, have been made to induce the execution of this Agreement by said party, and each party acknowledges that it has not executed this Agreement in reliance on any promise, representation, inducement, or warranty not contained herein.
16.9 Neutral Construction -- The parties to this Agreement agree that this Agreement was negotiated fairly between them at arm's length and that the final terms of this Agreement are the product of the parties' negotiations. Each party warrants and represents that it has sought and received legal counsel of its own choosing with regard to the contents of this Agreement and the rights and obligations affected hereby. The parties agree that this Agreement shall be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore should not be construed against a party or parties on the grounds that the party or parties drafted or was more responsible for drafting the provision(s).
16.10 Unenforceability -- If any provision of this Agreement or any word, phrase, clause, sentence, or other portion thereof should be held to be unenforceable or invalid for any reason, then provided that the essential consideration for entering into this Agreement on the part of any party is not unreasonably impaired, such provision or portion thereof shall be modified or deleted in such manner as to render this Agreement as modified legal and enforceable to the maximum extent permitted under applicable laws.
16.11 Time Of The Essence -- Time is of the essence to the performance of the parties' obligations under this Agreement.
16.12 Notices -- Under this Agreement if one party is required or permitted to give notice to the other, such notice shall be deemed given either (a) when transmitted by facsimile or (b) two business days after depositing the notice in the U.S. mail, first-class postage prepaid, if the notice was sent to the other party's Contract Coordinator at the address or facsimile number specified above, or at such other address or facsimile number as the party may specify in writing in accordance with this paragraph.
16.13 No Assignment -- Developer may not, without the prior written consent of the managing partner of Sponsor, assign, transfer, subcontract, or sublicense this Agreement or any obligation hereunder. Any attempt to do so in contravention of this Paragraph shall be void and of no force and effect. Sponsor may not, without the prior written consent of Developer, assign Sponsor's performance under this Agreement to a third party. Sponsor may assign or sublicense all or any portion of its rights in any Deliverable(s) to any third party, without the permission of Developer.
IN WITNESS WHEREOF, Sponsor and Developer have caused this Agreement to be signed and delivered by their duly authorized agents, all as of the Effective Date stated above.
King & Spalding
Date: July ___, 1995
CyberNet Communications Corp.
Date: July ___, 1995