Maintenance Agreement - Corbis Corp. d/b/a Digital Stock and Get Smart Inc. d/b/a Busy Box Productions and Media Network
MAINTENANCE AGREEMENT
This Maintenance Agreement ("Agreement") is entered into this 22 day of
May, 1998 ("Effective Date") by and between CORBIS CORPORATION, a Washington
corporation d/b/a/ DIGITAL STOCK 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, Corbis and Busy Box entered into a Revised Master Agreement for
Services, dated May 6, 1998 (the "Revised Agreement"), pursuant to which Busy
Box developed an Internet site for Corbis to be located at
www.digitalstock.com (the "Site");
WHEREAS, Corbis would like Busy Box to operate, maintain, monitor and
update the Site under the terms and conditions set forth in this Agreement;
WHEREAS, Busy Box would like to operate, maintain, monitor and update the
Site under the terms and conditions set forth in this Agreement;
NOW, THEREFORE, Corbis and Busy Box hereby agree as follows:
1. BUSY BOX RESPONSIBILITIES.
1.1. THE SITE. Busy Box's services with respect to the Site shall include
all services necessary, appropriate, or as otherwise requested by
Corbis to operate, maintain, monitor and update the Site 24 hours
per day, 7 days per week including but not limited to: Internet
operations; e-commerce operations; image processing; image and
product updates; bug fixes; Corbis-requested changes, or
enhancements to Site; and Site monitoring with escalation tools and
backup options. These services, which are not exhaustive of all
services, to be provided hereunder, are described in greater detail
below;
1.1.1. OVERALL INFRASTRUCTURE. Busy Box will be responsible for
setting up, operating, maintaining and monitoring the
infrastructure necessary to operate the Site in accordance
with current specifications for the Site, as such
specifications may be updated by Corbis and Busy Box from time
to time. Such services shall include, but are not limited to,
the following: database performance tuning and maintenance;
database backup administration; database installation and
configuration; database configuration review, calculation of
optimum parameters; indexing; monitoring performance;
technical support and bug fixes to keep the Site operating in
accordance with the Specifications (as defined in the Revised
Agreement); and recommendations as to Site modifications. At
a minimum, the Site's infrastructure shall include an OC-3
Internet connection; adequate server space; adequate rack
space for servers; sufficient air conditioning for servers;
back-up power source; and other back-up systems. Corbis
understands that Busy Box has contracted with ConXioN, an
Internet access service provider, to provide certain of these
hosting services. Corbis consents to such arrangements with
ConXioN, provided that such arrangement shall not relieve
Busy Box of any of its responsibilities or obligations under
this Agreement.
1.1.2. E-COMMERCE. Busy Box will be responsible for all e-commerce
operations and security on the Site, including but not
limited to the following:
1.1.2.1. Operating, maintaining, monitoring and updating all
merchant server operations, such as user account
set up, transactions, order baskets, check-out,
encrypted
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credit-card information, and download permissions;
1.1.2.2. Operating, maintaining, monitoring and updating the
secured download site for image files and associated
user permissions;
1.1.2.3. Operating, maintaining, monitoring and updating the
Cybercash (VPOS) server and transaction connections
to Cybercash for credit card authorizations and
posting credit card charges;
1.1.2.4. Transmitting FPT files to Corbis' Digital Stock
division containing order information and encrypted
credit card authorizations to enable Digital Stock
to fulfill orders and otherwise complete
transactions.
Busy Box will be responsible for all security on the Site related to
e-commerce operations. Without limiting the foregoing, Busy
Box expressly acknowledges and agrees that it will be
responsible for all security related to customer credit card
information as such information is received, stored and
transmitted by Busy Box. Busy Box understands that Corbis'
good will and business reputation will be affected by the
level of security provided on the Site in processing customer
orders. To that end, Busy Box agrees that Corbis may specify
security levels and protocol for Site operations, and Busy
Box agrees to implement such security and protocol
immediately upon request. Notwithstanding the foregoing, Busy
Box shall not be responsible for customer credit card fraud,
provided that all customer orders are processed through
Cybercash.
1.1.3. IMAGE PROCESSING. Busy Box will process and update images for
the Site on a regular basis, as requested by Corbis. In
processing and updating images, Busy Box agrees to the
following:
1.1.3.1. Busy Box will pre-process all images provided by
Corbis. Busy Box agrees that pre-processing
includes: Converting images to a specified format;
naming images according to specified naming
conventions; assigning specified prices to images;
mapping relationships among keywords, images and PDF
files; maintaining disc image source file and
description; conducting a quality assurance check of
all of the foregoing. In addition, Busy Box will
follow the pre-processing specifications attached
hereto as EXHIBIT A.
1.1.3.2. Busy Box will process all images provided by Corbis.
Busy Box agrees that processing includes:
Verification of adherence to standards; creating
and uploading appropriate CPD files (including
multiple resolutions, Photoshop header, watermarked
preview image and keywords); CD asset update
(including creation of disc icon, PDF files and link
from disc area to render appropriate search
results); image asset update (including updating
search index and multiple "addinventory" function);
"What's New" update (including manual HTML coding);
and post-production error checking and other quality
assurance measures.
1.1.3.3. Busy Box will update images and CD's as requested by
Corbis. Busy Box will endeavor to update images and
CD's while providing Internet access to the Site
with reasonable minimal interruption. However, in no
event will any Site downtime exceed one hour as a
result of any image update. Further, Busy Box agrees
that any Site downtime resulting from any image
update shall occur only between the hours of 1:00
a.m. and 3:00 a.m. Pacific Standard Time.
1.1.3.4. Corbis will provide Busy Box up to twelve (12) disc
titles (100 images per title) per month to
pre-process and process. These images will be
provided on disc
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titles of 100 images each on or before the fifteenth
day of each month. Busy Box agrees that it will
pre-process, process and update these twelve (12)
disc titles before the end each month in accordance
with this Paragraph 1.1.3. Upon ten (10) days advance
notice from Corbis, Busy Box agrees that it will use
best efforts to change this processing schedule to
accommodate Corbis special events, such as trade
shows and special presentations.
1.1.4. COMPATIBILITY WITH OTHER SITES. Busy Box will maintain
compatibility and interactivity features between the Site and
other Internet sites designated by Corbis, including but not
limited to the site located at www.corbis.com. Such features
will include, among other possible features, the ability to
search for images on the Site from the www.corbis.com site.
1.1.5. PROCURING EQUIPMENT, PRODUCTS AND THIRD-PARTY SERVICES. Busy
Box will purchase equipment and products,and secure
third-party services, as necessary and appropriate to operate,
maintain and update the Site. As provided in Paragraph 3.2
below, Corbis will reimburse Busy Box for all such equipment,
products and services, provided that Busy Box must receive
Corbis' prior approval for any purchase in excess of $500 and
for all third-party services. Corbis will own all such
equipment and products as provided in Paragraph 4.3 below.
Notwithstanding the foregoing, Corbis shall not be
responsible to reimburse Busy Box for services beyond the
expiration or termination of this Agreement. (For example, if
Busy Box enters into an agreement for Internet service for
one-year, and the Site uses this service for 9 months of that
one-year term, then Corbis shall reimburse Busy Box only for
the 9 months of Internet service, not for the entire year.)
1.1.6. REPORTS. Busy Box agrees to provide Corbis with reports,
every other week, as to the following items:
1.1.6.1. Sales from the Site on a CD and image basis;
1.1.6.2. Customer information;
1.1.6.3. Images downloaded for comping;
1.1.6.4. Standard Web traffic reports, as currently provided
to Corbis, and browser statistics; and
1.1.6.5. Such other information as may be reasonable
requested by Corbis.
1.1.7. ADDITIONAL SERVICES. At Corbis' request and discretion, Busy
Box shall provide up to 15 hours of general services each
month for buy fixes, text changes and associated HTML
coding, and other items not otherwise covered in this
Agreement. Both parties understand and agree that bug fixes
for items and processes, and text changes and associates HTML
coding, already covered in this Section 1.1 shall not be
included in the 15 hours. Busy Box agrees that it will
provide Corbis with a monthly statement of work services
provided within the 15 hours which clearly describes the work
performed. If Corbis does not use the full 15 hours in any
month, the unused hours will be carried over into the next
month, provided that such carry-over time may not exceed
fifteen (15) hours in any given month.
1.2. BACKUP SITE. Busy Box understands that original Digital Stock site
will be used as a backup site the "Backup Site") until August 1,
1998. To that end, Busy Box agrees that it will maintain the
original Digital Stock site, as such site existed as of the date it
was replaced by the Site, until August 1, 1998. If, for any reason,
Corbis determines that the Site is unusable, Corbis will notify Busy
Box to switch over to the Backup Site, and Busy Box will use best
efforts to complete the
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switch over to the Backup Site within one hour of Corbis'
notification.
2. PROBLEM REPORTS AND SITE OUTAGES. In the event of problems with or
outages of the Site, Busy Box will provide the following levels of support:
2.1. URGENT. Corbis shall designate a problems as "URGENT" if there is an
outage of the Site, or if the Site is otherwise unusable. Corbis
will call Busy Box at 1-800-847-7813 to report the URGENT problem,
and Busy Box will respond to such report within 1 hour of Corbis'
initial call. Busy Box understands that time is of the essence and
will use best efforts to correct the reported problem as soon as
possible. Further, Busy Box will provide Corbis with a status report
of the problem, including problems with third-party services, as
least once per hour until the problem is fixed. Busy Box's
obligations under this Paragraph 2.1 shall be for 24 hours per day, 7
days per week. Corbis' contact shall be at (425) 649-3440.
2.2. NOT CRITICAL. Corbis shall designate a problem as "NOT CRITICAL" if
there is problem with the Site that is not URGENT. Corbis will call
Busy Box at 1-800-847-7813 or send e-mail to Busy Box at
notcritical@busybox.com to report the NOT CRITICAL problem, and Busy
Box will respond to such report within 24 hours of Corbis' initial
call. Busy Box understands that time is of the essence and will use
best efforts to correct the reported problem as soon as possible.
Busy Box will report to Corbis as soon as the problem is corrected.
Busy Box's obligations under this Paragraph 2.3 shall be for 24 hours
per day, 7 days per week. Corbis' contact shall be at (425) 649-3440.
2.3. BUSY BX REPORTS. If Busy Box becomes aware of problems or outages of
the Site before receiving a call from Corbis, Busy Box will
immediately report any URGENT problems with the Site to Corbis.
Further, Busy Box will report all NOT CRITICAL problems promptly
during normal business hours. Corbis' contact shall be at (425)
649-3440.
3. FEES AND COSTS.
3.1. FIXED FEES. The fixed monthly fee for services described in Sections
1 and 2 above will be $10,000. Busy Box shall invoice Corbis for
this amount each month, and corbis will pay such invoices by check
within 30 days of its receipt of each such invoice.
3.2. REIMBURSEMENT FOR COSTS. Subject to the terms of Paragraph 1.1.5
above, Corbis shall reimburse Busy box for its actual out-of-pocket
costs, without any mark-up thereon. Busy Box shall invoice Corbis
for reimbursements each month and provide receipts for all such
costs to be reimbursed. Corbis will pay such invoices by check within
30 days of its receipt of each such invoice and related receipts.
3.2.1. Subject to the requirements of Paragraphs 3.2 and 1.1.5,
Corbis expressly acknowledges and consents to a quarterly
reimbursement of $8550 for services provided by ConXioN,
in addition to any usage fees assessed by ConXioN in
accordance with the applicable ConXioN usage fee schedule.
3.3. HOURLY FEES. Corbis agrees to pay Busy Box the hourly fee of $150 per
hour for development time, and $75 per hour for non-development time,
for services performed that are not described in Sections 1 and 2
above. Such services may not be performed without Corbis' prior
consent. Busy Box shall invoice Corbis for such services each month
and provide a detailed statement of work performed. Corbis will pay
such invoices by check within 30 days of its receipt of each such
invoice and statement of work.
4. OWNERSHIP.
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4.1. CORBIS CONTENT. Corbis shall provide Busy Box with certain Content, in
various media (for example, film, paper and digital), as needed to
operate, maintain and update the Site. Corbis shall provide the Content
solely for Busy Box's internal use in operating, maintaining and
updating 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
termination or expiration of this Agreement or upon Corbis' request.
4.1.1. 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 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 Agreement or upon Corbis' request.
4.2. CUSTOMER INFORMATION. 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 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.
4.3. EQUIPMENT AND PRODUCTS PURCHASED BY BUSY BOX. Busy Box will be
purchasing equipment and products under this Agreement, and that Corbis
will be reimbursing Busy Box for such equipment and products. Busy Box
acknowledges and agrees that all such equipment and products purchased
by Busy Box for which Corbis provides reimbursement shall be the
property of Corbis. All right, title and interest in and to such
equipment and products shall vest in Corbis upon reimbursement to Busy
Box as provided in this Agreement.
5. TERM AND EVENTS UPON TERMINATION.
5.1. TERM. This Agreement shall be effective as of April 1, 1998 and
continue for a period of six months. Thereafter, this Agreement shall
automatically renew on a monthly basis until one party provides the
other with written notice of termination. Busy Box agrees to provide
Corbis with no less than 90 days' prior written notice of termination,
and Corbis agrees to provide Busy Box with no less than 90 days' prior
written notice of termination.
5.2. EVENTS UPON NOTICE OF TERMINATION. Upon notice of termination of this
Agreement, Corbis and Busy Box agree to the following for the fixed
fees specified in Paragraph 3.1:
5.2.1. During the 60 days immediately following the notice of
termination, Busy Box agrees that it will allow no new purchases
from the Site. However, Busy Box will continue to operate,
maintain and monitor the Site as otherwise provided herein,
including but not limited to allowing customers to download
images which were licensed prior to the notice of termination.
5.2.2. During the 30 days immediately preceding the termination of this
Agreement, in order to wind down and close down the Site, Busy
Box agrees to the following:
5.2.2.1. In accordance with instructions from Corbis, Busy Box
will dismantle the Site;
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5.2.2.2. In accordance with instructions from Corbis, Busy Box
will pack and deliver to Corbis (at Busy Box's expense)
all Content (as specified in Section 4.1 above),
customer information (other than credit card
information), equipment and other such items belonging
to Corbis as specified in Section 4 and other
provisions of this Agreement;
5.2.2.3. Busy Box will destroy all customer credit card
information;
5.2.2.4. Busy Box will provide such other reasonable services as
requested by Corbis.
5.2.3. At all times during the 90 days following the notice of
termination, Busy Box agrees to reasonably cooperate with Corbis
to wind down and close down the Site.
6. DEFAULT AND REMEDIES.
6.1. Corbis shall be in default of this Agreement upon the breach by Corbis
of any material covenant or obligation of Corbis to be performed under
this 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
Agreement by giving written notice to Corbis; and (b) enforce Corbis'
performance of the applicable covenants or recover damages for the
breach thereof.
6.2. Busy Box shall be in default of this 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 (a)
terminate this 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.
6.3. If this Agreement is terminated before the end of this initial
six-month term through no fault of Corbis, Busy Box agrees to provide
Corbis with access to and a license for the Enabling Technologies (as
defined in the Revised Agreement) such that Corbis will be able to
operate, maintain, monitor and update the Site to Corbis' reasonable
satisfaction. Further, Busy Box agrees to use its best efforts to
enable Corbis to operate, maintain, monitor and update the Site, to
Corbis' reasonable satisfaction.
6.4. 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.
7. RISK OF LOSS. Busy Box agrees that it shall be responsible for and bear all
risk of loss for all Corbis property, including but not limited to Content,
customer information, software and hardware, that is in Busy Box's
possession or control, or in the possession or control of a third party with
which Busy Box has contracted, including but not limited to ConXioN and
other Internet access service providers. Busy Box shall indemnify Corbis for
any loss or damage to Corbis property.
8. INDEMNIFICATION. Busy Box expressly acknowledges and agrees that it is
responsible for processing all credit card transactions conducted on the
Site, including the security of receiving, storing and transmitting credit
card information, and will indemnify, defend and hold Corbis harmless from
all liabilities, costs and expenses, including reasonable attorneys' fees,
incurred as a result of Busy Box's actions, inaction and/or security in
processing credit card transactions, including the security of receiving,
storing and transmitting credit card information.
9. CONFIDENTIALITY.
9.1. Each party hereto (the "Disclosing Party") will disclose to the other
party ("Recipient") information in connection with the performance of
this Agreement. All non-public information
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disclosed by the Disclosing Party to the Recipient during the term
of this 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 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 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
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.
9.2. After termination of this 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.
9.3. Notwithstanding the other provisions of this 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 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.
9.4. The confidentiality obligations under this Section 9 shall be in
effect for a period of five (5) years from the Effective Date.
10. GENERAL PROVISIONS
10.1. ASSIGNMENT. This 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 Agreement or any right or obligation
hereunder, without the prior written consent of Corbis.
10.2. SEVERABILITY. If any provision or any part of a provision of this
Agreement shall be held invalid or unenforceable, such invalidity
or unenforceability shall not invalidate or render unenforceable
this entire Agreement, but rather the entire provision or this
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.
10.3. SURVIVAL OF TERMS. Notwithstanding any provision of this Agreement
to the contrary, Sections 4, 5.2, 7, 8 and 9 will survive the
expiration or termination of this Agreement.
10.4. 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.
701 Battery Street, 2nd Floor
San Francisco, CA 94111
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
in the manner provided herein.
10.5. ENTIRE AGREEMENT. Each party acknowledges that it has read this
Agreement and agrees to be bound by its terms. This Agreement and
the Revised Agreement are the complete and exclusive agreements and
understandings 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 Agreement or its
provisions shall be binding upon either party unless in writing and
signed by the party sought to be charged with the same.
10.6. GOVERNING LAW. This 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.
10.7. INDEPENDENT PARTIES. The parties hereto are independent contracting
parties, and no partnership, joint venture, agency or other form of
agreement or relationship is intended.
IN WITNESS WHEREOF, the parties have caused this 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 By: /s/ Rosanne Esposito
------------------------------ ------------------------------
Leslie Hughes Rosanne Esposito
Vice President, Corbis Images President
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