Production Agreement
Working together. We'd all probably like to be able to seal a
business agreement with a handshake. But these days, it's
helpful to put things on paper to avoid confusion. So we decided
to write out the specifics of how we expect things to work with
our client, Qwest Cyber.Solutions LLC (QC.S).
Our goals are all the same: we want to work together to produce
the best possible project for QC.S.
Recitals. This agreement to develop and manage a Website ("the
Project") is made March 15, 2000 by and between BVP Media, Inc.,
a Colorado corporation, having its principal place of business at
9250 East Costilla Avenue, Suite 605, Englewood, CO, 80112,
KEWI.net (a contracting party) 6886 S. Yosemite Street,
Englewood, CO 80112 and QC.S having its principal place of
business at 1670 Broadway,
26th Floor, Denver, CO 80202.
A. BVP Media is first and foremost a INTERACTIVE/ FILM/ VIDEO/
production and project management company.
B. QC.S and BVP Media desire to enter into this agreement for the
purposes of producing a Website for QC.S.
In light of the recitals set forth above, and in consideration of
the conditions, covenants and agreements set forth below, QC.S
and BVP Media hereby agree as follows:
Scope of work, deliverables, and rights Per the terms of this
Agreement, the scope of work that BVP and KEWI.net will provide
is outlined in the attached Statement of Work.BVP Media is
responsible for services as outlined in the attached Statement of
Work. BVP Media will act as project manager on services provided
by Kewi.net. However, Kewi.net is responsible for all services
and materials provided to QC.S as outlined in the Statement of
Work.
Approval. We will ask for your sign-off at certain points in the
production process. We will create an Approval Checklist for
this project. The Checklist will designate David VandeCasteele as
decision maker for QC.S who will have approval authority for this
project. At each approval point, we will ask for your
acknowledgment that the work that we have performed is
acceptable. With your signature at each phase, we will proceed
to the next phase.
Cancellation/termination. Except for cancellation or
termination of this agreement due to breach by either BVP Media
or KEWI.net, QC.S reserves the right to cancel the project at any
point. If this happens, BVP will be paid for materials and time
incurred up to that point. QC.S recognizes that BVP has devoted
the resources of its staff and sub-consultants to meet the
demands of this project. In consideration of this investment of
time, people and resources, BVP will receive a cancellation fee
should QC.S discontinue this project. This fee will reflect 10%
of the unused budget balance for the Website production after
accounting for time and materials already expended by BVP. If
cancellation occurs, QC.S will not take possession of any work
until all amounts owed (including as applicable, the cancellation
fee) are paid in full.
Copyright. This project is a work for hire. The entire right,
title, and interest in the elements created by BVP Media,
KEWI.net, or their staff or sub-consultants (with the exceptions
noted below), and the copyright to those elements (with the
exceptions noted below) shall remain with BVP Media until QC.S
has completed all financial obligations to BVP Media as agreed to
in writing by BVP Media. At which point, BVP Media shall assign
that copyright with all of its rights, interests and obligations
under and pursuant to this Agreement.
Promotional use. BVP shall have the right to use all or portions
of the project for the purpose of advertising or promotion in
portfolios, print ads, press releases, and demonstration media
subject to QC.S' prior written approval.
Indemnification. BVP Media and KEWI.net will indemnify, defend
and hold QC.S, its parents, affiliates, and customers, and their
employees, officers, management committees, directors, equity
holders and insurers, harmless from costs and expenses, including
reasonable attorneys' fees and expenses (which will include the
fully burdened cost of in-house counsel), resulting from (i) any
act or omission of BVP Media, KEWI.net, or their employees or
contractors, (ii) a breach of any provision of this Agreement by
BVP Media or KEWI.net. If any dispute results in litigation, the
prevailing party will be entitled to court costs and reasonable
attorneys fees (including the fully-burdened cost of in-house
counsel) on any award or judgment.
Budgets, terms, and contingencies. Attached is the budget for
this project. BVP Media will obtain prior approval from QC.S
before incurring any additional expenses to the budget identified
below.
Compensation and payment terms. Upon completion of each
milestone and QCS' acceptance of services, deliverables, or other
materials prepared by BVP Media or KEWI.net, as appropriate and
as set forth in the attached Statement of Work, QC.S will pay
BVP Media and KEWI.net in accordance with the attached Billing
Schedule and dates. Per the attached, Kewi.net will invoice QC.S
directly for services as outlined in the attached Billing
Schedule.
QC.S will pay BVP Media any additional costs incurred and agreed
to during the production. Again, BVP Media will obtain prior
approval from QC.S.
Term of project. BVP Media shall begin work immediately upon
execution of this Agreement and receipt of the first payment.
Finished work to be delivered in accordance with the Statement of
Work document.
Contingencies. Please note that there are certain contingencies
that may increase these budgets. BVP always obtains client
approval for any overages prior to executing. They are as
follows:
1. The client assumes all responsibility (financial, quality-
control, etc.) for client-supplied or client-managed elements.
The same contingency applies to any databases, artwork, or
programming clips supplied by QC.S.
2. All budgets are contingent upon the level of production
required by the approved creative.
3. All budgets are contingent upon any changes from the approved
scope of work or list of deliverables. These changes may affect
the budget. If they do, BVP will obtain client approval before
executing the new tactics or expanded scope of work.
4. All budgets are contingent upon any client-driven changes
from approved creative or finished elements. In other words, any
changes or revisions to final artwork, deployed web pages,
approved copy, etc., may result in overages.
5. Budgets may also be affected by fixes to client-supplied
materials or rush charges, cancellation fees, overtime or delays
caused by the client.
6. Finally, these budgets can sometimes be impacted by talent or
commercial photography usage fees.
By working closely together, keeping the lines of communication
open between all key decision makers, and streamlining the
internal approval process, we can avoid many of these
contingencies.
Governing law. These paragraphs, together with our Budget,
Approval Checklist, any Change Orders or Amendments, make up the
entire agreement between BVP Media, Inc. and QC.S. The only way
we can amend this is to mutually agree to a change in writing.
If any term or provision of this agreement is judged to be
invalid or unenforceable, the remainder of this agreement will
not be affected.
This Agreement and the rights and obligations of the parties
hereunder will be construed in accordance with and be governed by
the laws of the State of Colorado, without giving effect to
conflicts of law principles. Any dispute arising under or
relation to this Agreement will be resolved exclusively in the
federal or state courts located in Denver, Colorado, without a
jury, and Supplier hereby consents to such waiver of the right to
a jury and to the exclusive personal jurisdiction and venue of
such courts.
This Agreement is governed by the laws of the State of Colorado.
Insurance Provision. Insurance. During the Term, BVP Media will
maintain at its own expense at least the following insurance
coverage, will name QC.S as an additional insured on such
insurance, and any other insurance covering BVP Media, and BVP
Media and its insurers will have no right of subrogation against
QC.S, its parents, affiliates, partners or customers, on any
basis whatsoever:
(a) statutory worker's compensation to the extent BVP
Media is legally required to obtain such insurance;
(b) automobile insurance with coverage limits not less
than $300,000 per person/ $300,000 per occurrence bodily injury
and $50,000 property damage;
(c) commercial general liability insurance with
coverage limits of not less than $500,000 per occurrence.
Insurance Documentation. On request from QC.S, BVP
Media will furnish certificates of insurance or other appropriate
documentation (including evidence of renewal of insurance)
evidencing all coverage referenced above. Such certificates or
documentation will include a provision for QC.S to receive 30
days notice prior to coverage cancellation or material alteration
of the coverage by either such party or the insurer. Such
cancellation or material alteration will not relieve BVP Media of
its continuing obligation to maintain insurance coverage
specified above.
Warranty Provision. BVP Media and KEWi.Net each warrant that (a)
all services, deliverables and other materials prepared by BVP
Media or KEWi.Net under this Agreement will be (i) free of
defects in materials, design and workmanship, (ii) the original
work of BVP Media or KEWi.Net, will not be derived from or based
on the proprietary or confidential materials of any party, and
will not infringe the rights of any other party, (iii) made with
new materials (not used, reconditioned or government surplus),
(iv) in substantial conformance with applicable specifications,
drawings and other descriptions set forth in the attached
Statement of Work or communicated to BVP Media or KEWi.Net by
QCS, (v) suitable for their intended purposes, and
(vi) merchantable, of workmanlike quality, and fit for QC.S'
intended purposes, (b) their employees and contractors are not
entitled to, and will not assert any claims seeking, any employee
benefits from QC.S, (c) they are solely responsible for paying
all taxes related to employment and independent contractors, (d)
all of their personnel providing services will have suitable
skills, knowledge and experience, (e) the services will be
performed in a professional and workmanlike manner in accordance
with the highest professional standards and any specifications or
requirements set forth in the attached Statement of Work, or
communicated to BVP Media or KEWi.Net by QC.S, (f), they will not
introduce into the systems of QC.S any virus, Trojan horse,
trapdoor, worm, backdoor or any similar destructive or malicious
mechanism, and (g) the services will be Year 2000 compliant
according to standards provided by QC.S, or if none, then
according to best industry standard practices. BVP Media and
KEWi.Net will immediately replace any individuals providing
services under the attached Statement of Work not in compliance
with this warranty upon notice from QC.S and will re-perform at
no charge any work not in compliance with this warranty brought
to its attention by written notice within 90 days after that work
is performed. BVP Media and KEWi.Net each agree that if the
services failed to meet the foregoing warranties, they will at
the option of QC.S, replace the deliverables or other materials,
re-perform the services, or refund the amounts paid for the
services, deliverables and other materials. BVP Media and
KEWi.Net will each assign to QC.S any assignable warranties BVP
Media or KEWi.Net may receive from any third party vendor to the
extent appropriate for QC.S to use the services, deliverables and
other materials.
Limitation of Liability Provision. IN NO EVENT WILL EITHER PARTY
BE LIABLE TO THE OTHER FOR ANYINDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OFANY KIND, INCLUDING
LOST PROFITS (REGARDLESS OR WHETHER THAT PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES).
Confidentiality Provision. In the course of providing the
services, each party will acquire confidential information of the
others, including information regarding business activities and
operations, technical information, and trade secrets of a party,
its partners and customers ("Confidential Information"). Each
party will hold in confidence all Confidential Information of the
other parties, not use Confidential Information for purposes
other than performance of the attached Statement of Work and not
disclose such Confidential Information to any third party except
for its approved contractors providing services who have executed
an agreement regarding protection of such Confidential
Information at least as protective as those contained herein.
Confidential Information includes written, machine-reproducible
and visual materials, and all verbal disclosures made by or on
behalf of QCS under this Agreement or the attached Statement of
Work. QCS Confidential information includes the terms of this
Agreement, any software, whether in object, source or executable
code, documentation, nonpublic financial information, customer
lists, sales knowledge and related data, business contacts,
pricing, business plans, techniques, methods and processes. It
also includes QCS' nonpublic plans for new products and services,
product improvements and marketing strategies. Each party agrees
not to use or bring onto the premises of any other party any
proprietary or confidential information of any third party
without the agreement of such other party.
Upon knowledge by a party of any material unauthorized
possession, use or knowledge, or any attempted material
unauthorized possession, use or knowledge, of the Confidential
Information of another party by any person or entity
("Unauthorized Act"), such party will: (a) notify the other party
promptly of the details of the Unauthorized Act, (b) use
reasonable efforts to assist the other party in investigating,
minimizing the impact of, and preventing the recurrence of the
Unauthorized Act, and (c) use reasonable efforts to cooperate
with the other party in any litigation and investigation against
third parties deemed necessary by the other party to protect its
proprietary rights. Each party will bear the cost it incurs as a
result of compliance with the provisions contained above.
Even if marked as confidential, the obligations set forth
above will not apply to information generally available to or
known to the public, known by a party without obligation of
confidentiality before the negotiations leading to this Agreement
as demonstrated by such party's written records, independently
developed by a party outside the scope of this Agreement as
demonstrated by such party's written records, lawfully disclosed
to a party without restriction by a third party having the right
to make the disclosure or required to be publicly disclosed to a
tribunal. In the case of required disclosures to tribunals, a
party will promptly notify the other party and fully assist such
party to obtain protective orders maintaining the confidentiality
of the information.
Promptly upon expiration or termination of this Agreement or
earlier if requested by a party, except to the extent
specifically provided elsewhere in this Agreement, the other
party will return, erase or destroy all Confidential Information
of such party in its possession or control, including
Confidential Information stored in any computer memory or data
storage apparatus, and, at a party's request, provide a
certification by an officer of the other party that it retains no
Confidential Information in any form whatsoever.
Agreed to and accepted by:
BVP Media, Inc.
By: /s/ Natalie Nickel
Name: Natalie Nickel, President & COO
Qwest Cyber.Solutions LLC
By: /s/ Martin Barrack
Martin Barrack, Vice President
Kewi.net, Inc.
By: /s/ Frank Backes
Frank Backes, President
