Master Agreement for Services - Corbis Corp. and Get Smart Inc. d/b/a Busy Box Productions and Media network
REVISED MASTER AGREEMENT FOR SERVICES
This Revised Master Agreement for Services ("Revised Agreement") is
entered into this 6th day of May, 1998 ("Effective Date") by and between
CORBIS CORPORATION, a Washington corporation with its principal place of
business at 15395 S.E. 30th Place, Suite 300, Bellevue, Washington 98007
("Corbis"), and GET SMART, INC., a Delaware corporation d/b/a BUSY BOX
PRODUCTIONS and MEDIA NETWORK with its principal place of business at
701 Battery Street, 2nd Floor, San Francisco, California 94111 ("Busy Box").
RECITALS
WHEREAS, Busy Box and Digital Stock Corporation ("DSC") entered into a
Master Agreement for Services, dated December 22, 1995 (the "Master
Agreement"), inclusive of Exhibit A comprising the Statement of Work for
Phases 1-3 (as originally planned) of the web site to be developed by Busy
Box for DSC; Addendum to Exhibit A, dated November 20, 1997, setting forth
revisions to Exhibit A; and any other exhibits, addenda and amendments, if
any;
WHEREAS, Busy Box and DSC had certain differences and disputes under the
Master Agreement, both as to services provided by Busy Box and amounts to be
paid by DSC;
WHEREAS, on January 30, 1998, Corbis acquired the business of DSC,
including all rights in and to the Master Agreement; and
WHEREAS, Corbis and Busy Box would like to resolve all differences and
disputes under the Master Agreement and to enter into a new agreement to
complete certain Internet projects that were begun under the Master Agreement;
NOW, THEREFORE, Corbis and Busy Box hereby agree as follows:
1. RESOLUTION OF DISPUTES UNDER MASTER AGREEMENT
1.1. PAYMENT FOR PAST WORK. Corbis and Busy Box agree that as full and
final payment for all services provided and all costs and
expenses incurred under the Master Agreement, from the
commencement of the Master Agreement through the Effective Date
of this Revised Agreement, Corbis will pay Busy Box seventy-seven
thousand seven hundred fifty dollars ($77,750) (the "Master
Agreement Fee") within ten (10) business days of the Effective
Date of this Revised Agreement. Payment shall be made by check.
1.2. RELEASE. Busy Box and Corbis hereby mutually release each other,
and their predecessors in interest, affiliates, successors,
assigns, officers, agents, employees and other representatives,
from all fees, costs, expenses, claims, damages, losses and
liabilities of any nature whatsoever arising under the Master
Agreement.
1.3. TERMINATION OF MASTER AGREEMENT. Corbis and Busy Box hereby
acknowledge and agree that the Master Agreement is hereby
terminated and of no further force and effect; provided
that Section 3 (Proprietary Rights), 4 (Licenses),
6 (Representations & Warranties), 7 (Indemnity) and
8 (Confidentiality) of the Master Agreement shall be replaced
and superseded by the respective provisions of this Revised
Agreement.
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2. NEW WORK UNDER THIS REVISED AGREEMENT
2.1. NEW WORK. Corbis and Busy Box agree that all services Busy Box
provides to Corbis on and after the Effective Date, and all
payments Corbis makes to Busy Box for such services, shall be
governed by the terms and conditions of this Revised Agreement.
2.2. COMPLETION OF THE SITE. Busy Box shall develop the Internet
commerce site (the "Site") as described in the specifications
attached hereto (the "Specifications") in accordance with the
schedules set forth in the Specifications. Corbis and Busy Box
acknowledge that Busy Box began development of the Site under the
Master Agreement and will complete development of the Site under
this Revised Agreement. As used herein, "Site" shall include
those portions of the Site created under this Revised Agreement
and under the Master Agreement, including but not limited to all
Custom Work and Enabling Technologies (as those terms are defined
in the Master Agreement) developed under the Master Agreement.
3. OWNERSHIP AND LICENSE OF RIGHTS
3.1. CORBIS CONTENT. Corbis shall provide Busy Box with certain
content (for example, graphic design, digital images, keywords
and caption information), in various media (for example, film,
paper and digital), as needed for the development of the Site
("Content"). Corbis shall provide the Content solely for Busy
Box's internal use in developing the Site. Except for such
limited use, Busy Box agrees that it will not reproduce, display,
distribute, incorporate into other works or otherwise use the
Content in any manner whatsoever. All rights to the Content shall
remain with Corbis (as owner, agent or as licensee of such
content). Busy Box will return all Content provided by Corbis
upon completion of the Site, termination or expiration of this
Revised Agreement or upon Corbis' request. As used herein,
"Content" includes all such Content provided by DSC under the
Master Agreement.
3.1.1. Busy Box agrees that Corbis shall own all copies,
reproductions, modifications, new versions and
derivative works created by Busy Box of the Content,
including but not limited to cutdowns and new versions
of Corbis digital images, and edited caption information
and keywords, but exclusive of quality control,
processing, and auditing attributes independently
created by Busy Box. Busy Box will deliver all Content,
including Content created under the Master Agreement and
all copies, reproductions, modifications, new versions
and derivative works created by Busy Box of the Content,
to Corbis upon termination or expiration of this Revised
Agreement or upon Corbis' request.
3.1.2. Busy Box acknowledges and agrees that Busy Box will
collect and store Corbis' customer information and that
all such customer information will be the exclusive
property of Corbis. Busy Box will deliver all such
customer information (including all customer information
it may have collected and stored for DSC) to Corbis upon
termination or expiration of this Revised Agreement or
upon Corbis' request. Busy Box is expressly prohibited
from making any use of the customer information, except
as may be requested by Corbis.
3.2. BUSY BOX ASSIGNMENT AND LICENSES.
3.2.1. CUSTOM WORK. As of the Effective Date, Busy Box hereby
irrevocably assigns to Corbis all right, title and
interest, including copyright, in and to the Custom
Work as defined in the Master Agreement. Henceforth,
under this Revised Agreement, the Site shall be
comprised only of Content and Enabling Technologies.
3.2.2. ENABLING TECHNOLOGIES. Upon Corbis' acceptance of the
final version of the site and payment to Busy Box of the
full amount of the Master Agreement Fee and the Fee for
work performed under this Revised Agreement, Busy Box
shall irrevocably grant Corbis,
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its affiliates, successors, and assigns, a
non-exclusive worldwide license to use Enabling
Technologies, in all media whether now known or
hereafter devised, in connection with the Site and
future versions of the Site, if applicable. As used
herein, "Enabling Technologies" means all Busy Box
technologies deployed or otherwise required to operate
the Site in accordance with the Specifications, and
includes all Enabling Technologies licensed under the
Master Agreement (as Enabling Technologies is defined
therein).
3.2.3. Except for the licenses granted above and as may be
provided elsewhere in this Revised Agreement, all right,
title and interest in and to the Enabling Technologies
shall remain the property of Busy Box.
3.2.4. The licenses granted by Busy Box in this Section 3.2
shall be in effect for a period of 100 years from the
Effective Date or until all copyright protection in and
to the Enabling Technologies has expired, whichever is
later.
3.3. THIRD-PARTY TECHNOLOGIES. Subject to Corbis' approval as may be
required under Paragraph 5.4 below, Busy Box shall obtain
third-party technologies (including but not limited to both
hardware and software) on Corbis' behalf. Such technologies will
be standard, off-the-shelf technologies with licensed rights at
least as broad as those specified in Paragraphs 3.2.1 and 3.2.2
above. Subject to payment under Paragraph 5.4 below, Corbis shall
own all right, title and interest to such technologies, or to the
license of such technologies, as the case may be. Busy Box will
deliver all such third-party technologies to Corbis upon
termination or expiration of this Revised Agreement or upon
Corbis' request.
4. ACCEPTANCE OF SITE
4.1. TESTING. After delivery of each of the beta and final versions of
the Site to Corbis in accordance with the development schedule
set forth in the Specifications, Corbis shall test the particular
version of the site Site (I.E., the beta or final version, as the
case may be) for a trial period of up to seven (7) days. During
the respective trial periods, Corbis may perform any tests it may
choose on the particular version of the Site to determine if such
Site performs according to the Specifications.
4.2. PROCEDURE. In the event that, Corbis determines that the
particular version of the Site does not perform according to the
Specifications, Corbis shall notify Busy Box of the deficiency in
the Site before the expiration of the trial period. Upon receipt
of such notice, Busy Box shall use its best efforts to remedy the
deficiency within seven (7) days. After Busy Box's attempt to
remedy the deficiency has been completed, Corbis shall have seven
(7) days in which to test the particular version of the Site in
order to determine in its discretion if the deficiency has been
remedied. If the deficiency has not been remedied by the end of
this second seven-day period. Corbis may terminate this Revised
Agreement upon notice to Busy Box, and upon payment to Busy Box
of fifty percent (50%) of the payment specified in Paragraph 5.1,
Corbis shall have no further liability to Busy Box.
4.3. AUTOMATIC ACCEPTANCE. In the event that Corbis does not notify
Busy Box of any deficiencies in the Site within seven (7) days of
the initial seven-day trial period, Corbis shall be deemed to
have accepted the Site.
4.4. LAUNCH OF SITE PRIOR TO ACCEPTANCE. Both parties agree that the
Site may be made available over the Internet before Corbis has
accepted the Site, and that such a launch of the Site in no way
indicates acceptance of the Site by Corbis. Acceptance shall
follow the procedures set forth in this Section 4 and may occur
after the launch of the Site.
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5. FEE, EXPENSES AND PAYMENTS
5.1. FEE. Within ten (10) business days of the date on which Corbis
accepts the final version of the Site, in accordance with Section 4
above, Corbis will pay Busy Box a fee of eighty-seven thousand
two hundred fifty dollars ($87,250)(the "Fee"). Payments shall
be made by check.
5.2. FIXED FEE. Both parties agree that the Fee is a firm, fixed fee
for completion of the Site in accordance with the Specifications,
and Corbis shall not be responsible for paying any additional
amounts to Busy Box, including but not limited to hourly fees, to
complete the Site.
5.3. LATE PENALTY. Both parties agree that time is of the essence, and
Corbis will suffer significant damage if the Site is not
completed by May 11, 1998. Accordingly, if the Site is not
completed (including Corbis' acceptance of the final version of
the Site) by May 18, 1998, Busy Box will pay Corbis a late
penalty of $1000 per day for each day of delay, which amount may
be applied against the Fee owned by Corbis to Busy Box. In no
event will the cumulative late penalty exceed $20,000. The late
penalty shall not apply to delays caused by MetaDesign's material
delay in providing Busy Box with design work needed to complete
the Site, or any force majeure or other event beyond Busy Box's
reasonable control.
5.4. EXPENSES. Corbis agrees to reimburse Busy Box for its reasonable
out-of-pocket expenses incurred in obtaining third-party
technologies in accordance with Paragraph 3.3 above; provided
that Busy Box must obtain Corbis' prior approval for any singlel
expense that exceeds $1000, and further provided that Busy Box
must provide Corbis with receipts for all reimbursable expenses.
Corbis will make payment to Busy Box for reimbursable expenses
after Corbis' acceptance of the project, within 30 days of
receipt of an invoice from Busy Box.
6. MAINTENANCE AND HOSTING OF SITE
6.1. Corbis and Busy Box intend to enter into a separate agreement
governing the ongoing maintenance and hosting of the Site. Both
parties agree to use good-faith efforts to enter into such
agreement prior to the completion of the Site.
7. REPRESENTATIONS AND WARRANTIES
7.1. Busy Box hereby represents and warrants the following as of the
date hereof and upon delivery of the final Site to Corbis:
7.1.1. the Site will be free from significant programming
errors and from defects in materials and workmanship;
7.1.2. the Site will conform to the performance capabilities,
characteristics, and other descriptions and standards
applicable thereto as set forth in the Specifications;
7.1.3. Busy Box is the sole and exclusive owner of all rights
in the Enabling Technologies, including all patent
rights, copyright and all other intellectual property
rights therein, and Busy Box has the right to grant to
Corbis all rights granted in this Revised Agreement free
and clear of any and all agreements, liens, adverse
claims, encumbrances and interests of any third party;
and
7.1.4. the Site, Custom Work and Enabling Technologies and the
exercise by Corbis of its rights hereunder with respect
to those items will not infringe upon, violate or
misappropriate any patent, copyright, trade secret,
trademark, contract or other right or interest of any
third party, provided, that Busy Box makes no warranties
or representations with respect to the content provided
by Corbis.
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7.2. If Corbis believes that there is a breach of any warranty contained
in Section 7.1, Corbis shall notify Busy Box, setting forth the
nature of such claimed breach. Busy Box shall promptly investigate
such claimed breach and shall either (a) provide information
satisfactory to Corbis that no breach of warranty in act occurred,
or (b) advise Corbis of Busy Box's planned corrective action. In the
event that a breach of warranties has occurred, Busy Box shall, at
no additional charge, promptly take such action as may be required
to correct such breach.
7.3. In the event that the Site, Custom Work or Enabling Technologies
(excluding the content provided by Corbis) is finally determined by
a court of competent jurisdiction to constitute an infringement of a
patent, copyright, trade secret or other proprietary right and its
use is enjoined, Busy Box shall, at its own expense, either
(a) procure the right for Corbis to continue its use of the Site,
Custom Work or Enabling Technologies under this Revised Agreement,
or (b) replace or modify the Site, Custom Work or Enabling
Technologies with a version of the same that is not infringing and
is a product of equal or greater value and meets the performance
criteria and functions outlined in the Specifications.
7.4. The remedies provided for herein are cumulative and are in addition
to all other remedies Corbis may have under applicable law or in
equity.
7.5. These representations and warranties shall be in effect for a period
of 100 years from the Effective Date.
8. INDEMNIFICATION AND HOLD HARMLESS FOR CLAIMS OF INFRINGEMENT
8.1 Busy Box shall defend, hold harmless, and indemnify Corbis from
and against any and all damages, liabilities, obligations,
expenses, costs and attorneys' fees incurred by or awarded
against Corbis in any claim, action, or judicial or other
proceeding based upon a breach of Busy Box's representations and
warranties provided in Section 7.1 above. This indemnification
shall be in effect for a period of 100 years from the Effective
Date.
9. DEFAULT AND REMEDIES
9.1. Corbis shall be in default of this Revised Agreement upon the
breach by Corbis of any material covenant or obligation of Corbis
to be performed under this Revised Agreement, if not cured within
ten (10) business days after receipt by Corbis of written notice
thereof. At any time after the occurrence of an event of default,
Busy Box may (a) terminate this Revised Agreement by giving
written notice to Corbis; and (b) enforce Corbis' performance of
the applicable covenants or recover damages for the breach
thereof.
9.2. Busy Box shall be in default of this Revised Agreement upon
breach by Busy Box of any covenant or obligation of Busy Box, if
not cured within five (5) business days after Busy Box's receipt
of written notice thereof. At any time after the occurrence of an
event of default, Corbis may terminate this Revised Agreement by
giving written notice to Busy Box, and (b) enforce Busy Box's
performance of the applicable covenants or recover damages for
the breach thereof.
9.3. The remedies provided for herein are cumulative and are in
addition to all other remedies Corbis or Busy Box may have under
applicable law or in equity.
10. CONFIDENTIALITY
10.1. Each party hereto (the "Disclosing Party") will disclose to the
other party ("Recipient") information in connection with the
performance of this Revised Agreement. All non-public information
disclosed by the Disclosing Party to the Recipient during the
term of this Revised Agreement, including but not limited to
technical and business information relating to Disclosing Party's
products, research and development, production, costs,
engineering processes, profit or
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margin information, finances, customers, marketing, and future
business plans, shall be deemed "Confidential Information." In
addition, "Confidential Information" shall include all
Confidential Information disclosed by DSC and Busy Box during the
term of the Master Revised Agreement. All Confidential
Information shall remain the sole property of Disclosing Party,
and Recipient shall have no rights to or in the Confidential
Information. Recipient shall hold the Confidential Information in
strict confidence. Recipient shall not make any disclosure of the
Confidential Information to anyone without the express written
consent of Disclosing Party, except (i) to employees,
consultants, advisors or agents to whom disclosure is necessary
to the performance of this Revised Agreement, or the conduct of
Recipient's business, and who shall be bound by the terms hereof;
or (ii) in the context of any administrative or judicial
proceeding, provided that prior written notice of such required
disclosure and an opportunity to oppose or limit disclosure is
given to Disclosing Party.
10.2. After termination of this Revised Agreement, upon written
request, Recipient shall return, within ten (10) business days,
all originals and copies any requested Confidential Information
disclosed by Disclosing Party which has been fixed in any
tangible means of expression.
10.3. Notwithstanding the other provisions of this Revised Agreement,
nothing received by Recipient shall be considered to be
Confidential Information of the other, if: (i) it has been
published or is otherwise readily available to the public other
than by a breach of this Revised Agreement; (ii) it has been
rightfully received by Recipient from a third party without
confidentiality limitations; or (iii) it was known to Recipient
prior to its first receipt by Recipient, as shown by files
existing at the time of initial disclosure.
10.4. The confidentiality obligations under this Section 10 shall be in
effect for a period of five (5) years from the Effective Date.
11. GENERAL PROVISIONS
11.1. ASSIGNMENT. This Revised Agreement shall be binding upon the
parties, their heirs, representatives, executors, administrators,
successors, licensees and assigns, Notwithstanding the foregoing,
Busy Box shall not, without the prior written consent of Corbis,
sell, assign or otherwise transfer this Revised Agreement or any
right or obligation hereunder, without the prior written consent
of Corbis.
11.2. SEVERABILITY. If any provision or any part of a provision of this
Revised Agreement shall be held invalid or unenforceable, such
invalidity or unenforceability shall not invalidate or render
unenforceable this entire Revised Agreement, but rather the
entire provision or this Revised Agreement shall be construed as
if not containing the particular invalid or unenforceable
provision or provisions, and the rights and obligations of the
parties shall be construed and enforced accordingly.
11.3. NOTICES. All notices hereunder shall be in writing and shall be
deemed given when sent by certified or registered mail, return
receipt requested, postage prepaid, addressed as follows:
If to Busy Box:
Get Smart, Inc. dba Busy Box Productions
P O Box 191712
San Francisco, CA 94119
Attention: Rosanne Esposito, President
Fax: (415) 283-1806
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If to Corbis:
Corbis Corporation
15395 S.E. 30th Place, Suite 300
Bellevue, WA 98007
Attention: Director of Products and Systems, Corbis Images
Fax: (425) 746-1618
With a copy to the General Counsel
Fax: (425) 746-1618
or such other address as a party may so designate by written
notice to the other in the manner provided herein.
11.4. ENTIRE AGREEMENT. Each party acknowledges that it has read this
Revised Agreement and agrees to be bound by its terms. This
Revised Agreement is the complete and exclusive agreement and
understanding between the parties concerning the subject matter
hereof, which supersede all previous understandings negotiations
and proposals, whether oral or written. No modification,
amendment, consent or discharge in connection with this Revised
Agreement or any of its provisions shall be binding upon either
party unless in writing and signed by the party sought to be
charged with the same.
11.5. GOVERNING LAW. This Revised Agreement shall be governed and
interpreted under the laws of the State of California. Any and
all disputes arising under this Agreement shall be finally
decided through arbitration before Judicial Arbitration and
Mediation Services, Inc. ("JAMS/Endispute") in accordance with
JAMS/Endispute rules and procedures, and judgment on any
JAMS/Endispute award may be entered in any court having
jurisdiction over the parties or their assets.
IN WITNESS WHEREOF, the parties have caused this Revised Agreement to be
executed by their respective duly authorized representatives as of the date
first written above.
CORBIS CORPORATION GET SMART, INC.
d/b/a/ BUSY BOX and MEDIA NETWORK
By: /s/ Leslie Hughes 5-14-98 By: /s/ Rosanne Esposito
--------------------------------- -----------------------------
Leslie Hughes Rosanne Esposito
Vice President, Corbis Images Its: President
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