Master Agreement for Services - Get Smart Inc. d/b/a Busy Box Productions and Visual Communications Ltd.
MASTER AGREEMENT FOR SERVICES
THIS REVISED AGREEMENT is made on [29 April], 1998 BETWEEN:
(1) Get Smart, Inc, a Delaware corporation d.b.a. Busy Box Productions
("Busy Box"), located at 701 Battery Street, 2nd Floor, San Francisco
California 94111, and
(2) Visual Communications Limited, a company registered in England and
Wales under No. 320338, with its registered office at Ludgate House,
245 Blackfriars Road, London SE1 9UY, trading under the name Visual
Communications Group (the "Client").
WHEREAS
(1) Busy Box and the Client have a Master Agreement for Services
dated 7th June, 1996 (the "Master Agreement") under which
Busy Box provides Deliverables and Services as set out in
Statements of Work issued pursuant to the Master Agreement.
(2) It is the intention of both parties that this Revised Agreement
amends the Master Services Agreement as from the date of this
agreement and supercedes the Addendum to the Master Agreement.
(3) It is the intention of both parties that this agreement does not
recind the Master Agreement.
IT IS AGREED as follows:
DEFINITIONS
1. "ACCEPTANCE" means the date on which the Client certifies the
Deliverables accepted in accordance with the relevant Statement of
Work.
"AFFILIATE" means a subsidiary or holding company of a party, or any
other subsidiary of any such holding company, and the terms
"subsidiary" and "holding company" shall have the meanings given to
them in section 736 of the Companies Act 1985 as amended by section
144(1)(b) of the Companies Act 1989.
"CUSTOM WORK" means all original works including all copyright works
created by Busy Box for the Client to provide Deliverables defined a
Statement of Work which do not constitute Enabling Technology.
"DELIVERABLES" means all works and products defined as deliverables
(including Custom Work and Enabling Technology) in a Statement of
Work.
"ENABLING TECHNOLOGY" means the all original works owned by Busy Box,
including all know-how, technical information and data (including
drawings, specifications, computer program source and object code,
and documentation required by the Client for the Deliverables or to
operate the Custom Work.
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"INTELLECTUAL PROPERTY RIGHTS" means all trade marks (registered and
unregistered), patents (registered and unregistered), copyrights,
design rights, trade names, service marks, trade secrets,
know-how and other intellectual property rights (where registered or
unregistered) and applications for the same, anywhere in the World.
"LICENCE AGREEMENT" means the Licence Agreement relating to the
Enabling Technology to be agreed and signed by both parties which
constitutes a Schedule to this Revised Agreement.
"SERVICE" means those services defined in a Statement of Work.
"SPECIFICATION" means the description and criteria set out in a
Statement of Work which the Deliverables must comply with.
"STATEMENT OF WORK" means a statement in the form to be determined and
agreed between Busy Box and the Client setting out the
Deliverables and Services which constitutes a Schedule to this
Revised Agreement.
2. In the event of any conflict or inconsistency arising in the
interpretation of any of the documents comprising the Master Agreement
or this Revised Agreement, this Revised Agreement shall prevail over
the Master Agreement.
MASTER AGREEMENT AMENDMENTS
3. (a) Clause 1 shall read:
"1, BUSY BOX SHALL PROVIDE THE SERVICES AND DELIVERABLES DEFINED IN
EACH STATEMENT OF WORK IN CONSIDERATION FOR THE CLIENT PAYING BUSY
BOX THE FEES DEFINED IN THE RELEVANT STATEMENT OF WORK. BUSY
BOX SHALL PROVIDE UPGRADES TO THE DELIVERABLES IN ACCORDANCE
WITH THE RELEVANT STATEMENT OF WORK".
(b) Clause 1.1 remains unamended.
4. (a) Clause 3.1 shall read:
"3.1 ALL INTELLECTUAL PROPERTY RIGHTS IN THE CUSTOM WORK SHALL VEST
EXCLUSIVELY IN THE CLIENT. BUSY BOX CONFIRMS THAT ALL INTELLECTUAL
PROPERTY RIGHTS IN CUSTOM WORK SUPPLIED TO THE VISUAL COMMUNICATIONS
GROUP SHALL VEST EXCLUSIVELY IN THE CLIENT".
(b) Clause 3.1.2 shall read:
"3.1.2 IN CONSIDERATION OF THE FEES PAID BY THE CLIENT BUSY BOX
ASSIGNS TO THE CLIENT ALL INTELLECTUAL PROPERTY RIGHTS IN THE
CUSTOM WORK AND WAIVES ALL MORAL RIGHTS IN THE CUSTOM WORK. FOR THE
SAKE OF CLARIFICATION THIS ASSIGNMENT APPLIES TO ALL CUSTOM WORK
CREATED FOR THE CLIENT PURSUANT TO A STATEMENT OF WORK".
"BUSY BOX HEREBY ASSIGNS TO THE CLIENT ALL INTELLECTUAL PROPERTY
RIGHTS IN THE CUSTOM WORK (AND WAIVES ALL MORAL RIGHTS IN THE CUSTOM
WORK) SUPPLIED TO VISUAL COMMUNICATIONS GROUP PURSUANT TO THE MASTER
AGREEMENT.
(c) Clause 3.2 shall read:
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"3.2 BUSY BOX RETAINS OWNERSHIP TO THE ENABLING TECHNOLOGY AND GRANTS
THE CLIENT UPON ACCEPTANCE OF THE RELEVANT DELIVERABLES AND PAYMENTS TO
BUSY BOX OF ALL CORRESPONDING FEES AN IRREVOCABLE, NON-EXCLUSIVE, NON-
TRANSFERABLE, WORLD-WIDE, ROYALTY FREE, LICENCE TO USE THE ENABLING
TECHNOLOGY ON THE TERMS SET OUT IN THE LICENCE AGREEMENT. BUSY BOX
SHALL GRANT THE CLIENT ACCESS TO THE SOURCE CODE FOR THE ENABLING
TECHNOLOGY, ON TERMS TO BE AGREED IN THE LICENCE AGREEMENT. ALL RIGHT
TITLE AND INTEREST IN THIRD-PARTY TECHNOLOGIES REQUIRED TO ENSURE THE
DELIVERABLES COMPLY WITH THE SPECIFICATION SHALL BE GOVERNED BY USER
LICENCE AGREEMENTS AGREED WITH THE PROPRIETOR OF THAT TECHNOLOGY (TO
BE PROCURED BY BUSY BOX FOR THE CLIENT)."
5. (a) Clause 4.2 shall be deleted.
(b) Clause 4.3 shall be deleted.
6. (c) Clause 6 shall be amended by including:
"6.1.4. THE DELIVERABLES SHALL COMPLY WITH THE RELEVANT SPECIFICATION
FOR 180 DAYS FROM THE DATE OF ACCEPTANCE. SHOULD THE DELIVERABLES
NOT COMPLY WITH THE SPECIFICATION DURING THIS PERIOD BUSY BOX SHALL
AT ITS OWN EXPENSE PROMPTLY TAKE ALL REASONABLE ACTION TO ENSURE THE
DELIVERABLES DO COMPLY WITH THE SPECIFICATION.
6.1.5. THE DELIVERABLES SHALL BE SUPPLIED WITH DUE SKILL AND CARE
AND SHALL BE FIT FOR THE PURPOSE MADE KNOWN TO BUSY BOX BY THE
CLIENT AS EXPRESSLY SET FORTH IN THE RELEVANT STATEMENT OF WORK".
7. (a) A new clause 7.1 and 7.2 should be added.
"7.1 BUSY BOX SHALL DEFEND AT ITS EXPENSE AND HOLD HARMLESS THE
CLIENT AGAINST ANY CLAIM OR SUIT BROUGHT AGAINST THE CLIENT
ALLEGING THAT THE SERVICES AND/OR DELIVERABLES INFRINGE PATENT,
COPYRIGHT, TRADEMARK, SERVICE MARK, OR OTHER INTELLECTUAL
PROPERTY RIGHTS OR RIGHT OF PRIVACY OF A THIRD PARTY, OR LIBELS
OR DEFAMES ANY THIRD PARTY, PROVIDED THAT BUSY BOX IS GIVEN
PROMPT WRITTEN NOTICE OF SUCH CLAIM AND PERMITS BUSY BOX TO
PARTICIPATE IN THE DEFENSE AND/OR SETTLEMENT THEREOF. IF THE CLIENT
IS HELD TO INFRINGE INTELLECTUAL PROPERTY RIGHTS OWNED BY A
THIRD PARTY BUSY BOX SHALL INDEMNIFY THE CLIENT IN RESPECT OF
THE LOSSES AND EXPENSES IT INCURS AS A RESULT OF INFRINGEMENT.
BUSY BOX SHALL HAVE NO LIABILITY UNDER THIS CLAUSE FOR ANY CLAIM
THAT WOULD HAVE BEEN AVOIDED BY USE OF THE DELIVERABLES, WITH
DEVICES, PARTS OR SOFTWARE NOT CONTEMPLATED BY THIS REVISED
AGREEMENT OR OTHERWISE APPROVED BY BUSY BOX"
7.2 ASSIGNMENT. NEITHER PARTY WITHOUT THE WRITTEN CONSENT OF THE
OTHER SHALL ASSIGN THIS REVISED AGREEMENT OR ANY INTEREST
HEREIN. SUCH CONSENT SHALL NOT BE UNREASONABLY WITHHELD BY BUSY
BOX IF THE CLIENT PROPOSES AN ASSIGNMENT TO A SUCCESSOR OR AN
AFFILIATE. ANY SUCH ASSIGNMENT IN VIOLATION OF THIS CLAUSE 7
SHALL BE VOID. NOTWITHSTANDING THE FOREGOING, BUSY BOX IS
PERMITTED TO USE CONSULTANTS, INDEPENDENT CONTRACTORS AND AGENTS
TO ASSIST IN THE PERFORMANCE OF THIS REVISED AGREEMENT, PROVIDED,
HOWEVER, THAT BUSY BOX REMAINS RESPONSIBLE FOR THE SERVICES. IF
INDEPENDENT CONTRACTORS AND AGENTS ARE USED BUSY BOX SHALL PROCURE
THOSE CONTRACTORS AND AGENTS COMPLY WITH THE TERMS OF CLAUSES 3 AND 8
OF THIS REVISED AGREEMENT".
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8. (a) Clause 12 shall read:
"12. GOVERNING LAW: THIS REVISED AGREEMENT, THE LICENSE AGREEMENT AND
THE MASTER AGREEMENT SHALL BE GOVERNED BY ENGLISH LAW".
9. A new Clause 13 shall be inserted to read:
"13. ALL DISPUTES BETWEEN THE PARTIES ARISING OUT OF OR RELATING TO
THIS REVISED AGREEMENT SHALL BE REFERRED FOR DETERMINATION AS FOLLOWS:
(a) IF THE DISPUTE IS OF A TECHNICAL NATURE IT SHALL BE REFERRED
FOR FINAL DETERMINATION TO AN EXPERT (THE "EXPERT"), WHO SHALL BE
DEEMED TO ACT AS EXPERT AND NOT AS ARBITRATOR; AND
(b) IN ALL OTHER RESPECTS IT SHALL BE DETERMINED BY A SINGLE
ARBITRATOR (THE "ARBITRATOR").
BOTH THE EXPERT AND THE ARBITRATOR SHALL BE SELECTED BY MUTUAL
AGREEMENT OR FAILING AGREEMENT WITHIN 14 DAYS AFTER A REQUEST BY ONE
PARTY TO THE OTHER, SHALL BE CHOSEN AT THE REQUEST OF EITHER PARTY,
IN THE CASE OF THE EXPERT, BY THE PRESIDENT FOR THE TIME BEING OF
THE BRITISH COMPUTER SOCIETY AND, IN THE CASE OF THE ARBITRATOR,
UNDER THE RULES OF THE LONDON COURT OF INTERNATIONAL ARBITRATION."
THE EXPERT SHALL BE INSTRUCTED TO DELIVER HIS DETERMINATION TO THE
PARTIES WITH 14 DAYS AFTER HIS APPOINTMENT. THE ARBITRATOR SHALL BE
INSTRUCTED TO DELIVER HIS DETERMINATION WITHIN 60 DAYS AFTER HIS
RECEIVING ALL INFORMATION NECESSARY FOR HIS DETERMINATION.
DECISIONS OF THE EXPERT SHALL BE FINAL AND BINDING AND NOT SUBJECT
TO APPEAL. REFERENCES TO THE ARBITRATOR SHALL BE DEEMED TO BE A
SUBMISSION TO ARBITRATION UNDER THE RULES OF THE LONDON COURT OF
INTERNATIONAL ARBITRATION AND THE ARBITRATION SHALL BE CONDUCTED IN
THE ENGLISH LANGUAGE IN LONDON, ENGLAND.
THE EXPERT SHALL HAVE THE SAME POWERS TO REQUIRE ANY PARTY TO
PRODUCE ANY DOCUMENTS OR INFORMATION TO HIM AND THE OTHER PARTY AS
AN ARBITRATOR AND EACH PARTY SHALL IN ANY EVENT SUPPLY HIM SUCH
INFORMATION WHICH IT HAS AND IS MATERIAL TO THE MATTER TO BE
RESOLVED AND WHEN IT COULD BE REQUIRED TO PRODUCE ON DISCOVERY.
THE FEES OF THE EXPERT AND THE ARBITRATOR SHALL BE BORNE BY THE
PARTIES IN THE PROPORTION AS MAY BE DETERMINED BY THE EXPERT OR
ARBITRATOR (AS THE CASE MAY BE) HAVING REGARD (AMONGST OTHER THINGS)
TO THE CONDUCT OF THE PARTIES".
10. Busy Box and the Client agree the following Statements of Works formed
part of the Master Services Agreement and the Intellectual Property Rights
which arise out of creation of the Custom Work for the Deliverables in
these Statements of Work vest in the Client.
Statement of Work 1 ("Specification Document for Visual June 9, 1995
Communications Group")
Statement of Work 4 ("stockdirectory.com") July 25, 1997
Statement of Work 4a ("Addendum to Statement of Work 4") October 2, 1997