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:
WITNESSETH:
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:
Section 1
DEFINITIONS
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.
Section 2
CONTRACT
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.
Section 3
CONTRACT ADMINISTRATION
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 ______, 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 ______, 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.
Section 4
CHANGES
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 ______), 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.
Section 5
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.
Section 6
SPECIFICATIONS
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 "web crawler" 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
6.4 [Web Site specifications deleted]
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6.6 [Web Site specifications deleted]
6.7 [Web Site specifications deleted]
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6.9 [Web Site specifications deleted]
6.10 [Web Site specifications deleted]
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6.12 [Web Site specifications deleted]
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 " 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]