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EXHIBIT 10(a)
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 21st day of August,
2001, by and between Next Generation Media Corp., a corporation organized and
existing under the laws of the State of Nevada and having a principal place of
business at 8380 Alban Road, Springfield, Virginia, 22150 ("NGMC"), and Mr. Paul
Cummings, an independent contractor residing at 101 Oak Street, Brewster, New
York 10509 ("Consultant").
1. PERFORMANCE BY CONSULTANT
Consultant agrees to provide consulting and web site development services (the
"Services") specified in the Statement of Work attached hereto as Exhibit A, as
amended from time to time by Supplemental Statements of Work.
2. PAYMENT FOR SERVICES
a. Fees. NGMC agrees to pay Consultant for the Services in accordance
with the Fee Schedule set forth in the Statement of Work. The fees specified in
the Statement of Work are the total fees and charges for the Services and will
not be increased during the term of this Agreement except as the parties may
agree in writing.
b. Out-of-Pocket Expenses. Consultant shall pay all out-of-pocket
expenses incurred in relation to the Services provided herein, and shall not be
entitled to reimbursement by NGMC.
3. OBLIGATIONS OF CONSULTANT
a. Work on NGMC's Premises. Whenever Consultant is on NGMC's premises,
Consultant will obey all reasonable instructions and directions issued by NGMC.
b. Periodic Status Consultations. Consultant agrees to participate in
periodic meetings to review the progress of all work under this Agreement.
c. Regeneration of Lost or Damaged Data. With respect to any data which
Consultant has lost or damaged, Consultant shall, at its own expense, promptly
replace or regenerate such data from NGMC's machine-readable supporting
material, or obtain, at Consultant's own expense, a new machine-readable copy of
lost or damaged data from NGMC's data sources.
4. OBLIGATIONS OF NGMC
a. Work on NGMC's Premises. Whenever Consultant is required to work on
NGMC's premises, NGMC will provide office space, office supplies, and reasonable
staff and secretarial support.
b. Provision of NGMC Information. NGMC agrees to make available to
Consultant, upon reasonable notice, computer programs, data and documentation
required by Consultant to complete the Services.
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5. STATEMENTS OF WORK
a. In General. When required by NGMC, the parties shall in good faith
negotiate Supplemental Statements of Work ("Supplements"), each of which upon
signing shall be deemed a part of this Agreement. Unless otherwise agreed in a
Supplement, the following provisions shall govern Supplements generally:
i. Term. In the absence of an express provision for the duration
or early termination of a Supplement, such agreements shall be terminable on
thirty (30) days written notice of either party without cause.
ii. Payment. Supplements may call for lump sum or periodic
payment, or payment against performance milestones, and for compensation based
on time and materials or on a fixed price.
iii. Specifications. Supplements shall include written
specifications for any computer programs and documentation to be provided
thereunder.
iv. Costs of Negotiating. In the event that the parties do not
conclude negotiations for a specific Supplement, each party shall bear its
respective costs relating to the negotiations unless otherwise agreed, and the
progress of such efforts and discussions shall not obligate either party to the
other.
v. Other. Each Supplement may contain such additional terms and
conditions as may be mutually agreed to by the parties, including by way of
example and not limitation, automatic renewal terms, required supplementary
documentation, further specifications or the like.
b. Installation and Testing. Consultant shall provide reasonable
assistance to NGMC to facilitate NGMC's installation and testing of all computer
programs developed under the Statement of Work or Supplements (i) against
previously prepared specifications and (ii) for systems integration ("Acceptance
Testing"). Unless otherwise provided in a Supplement, Acceptance Testing shall
be commenced within ten (10) days of delivery and installation by Consultant of
any computer program and such computer program shall be deemed accepted when it
has operated in conformity with specifications for a period of thirty (30)
consecutive days ("Acceptance"). In the event that the computer program does not
so perform, the period shall be extended on a day-by-day basis until such
performance is achieved for thirty (30) consecutive days. If, at any time
following sixty (60) days after commencement of Acceptance Testing, the computer
program has not met Acceptance Testing standards, NGMC may terminate the
Supplement.
6. RIGHTS IN DATA AND WORKS
a. Ownership. Consultant agrees that NGMC is the owner of all right,
title and interest in all NGMC Content (as defined in Exhibit A), computer
programs, including any source code, object code, enhancements and
modifications, all files, including input and output materials, all
documentation related to such computer programs and files, all media upon which
any such computer programs, files and documentation are located (including
tapes, disks and other storage
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media) and all related material that are used by, developed for, or paid for by
NGMC in connection with the performance of any Services provided by Consultant
before or after the date set forth above.
b. Proprietary Rights. In no way limiting Section 6.a above, Consultant
agrees that all copyrights and other proprietary rights in computer programs,
files, documentation, and related materials that are paid for by NGMC or
developed by Consultant in connection with this Agreement are owned by NGMC and
Consultant hereby assigns to NGMC all right, title and interest in such
copyrights and other proprietary rights.
c. Access. NGMC shall have unrestricted access to all computer media
containing NGMC data from time to time in connection with the performance of the
Services. Consultant, at the request of NGMC, promptly shall deliver to NGMC all
computer programs, including source code, files, media, documentation and
related materials, concerning any Services provided by Consultant before or
after the date of this Agreement.
7. RECRUITMENT
Consultant and NGMC agree not to recruit employees who are currently employed
(or who were employed in the last six (6) months) by the other party unless
written permission is obtained from the other party. This provision shall remain
in effect for a period of six (6) months after termination of this Agreement.
8. WARRANTIES
Consultant warrants the following with respect to Services performed:
a. Compliance with Specifications. Consultant's computer programs,
files, documentation and all other work product will strictly comply with the
descriptions and representations as to the Services (including performance
capabilities, completeness, specifications, configurations, and function) that
appear in the Statement of Work or any Supplemental Statements of Work.
b. Compliance with Specifications After Acceptance. For a period of 180
days after Acceptance pursuant to Section 5.b, any computer programs developed
under this Agreement will operate in conformance with the specifications for
such computer programs.
c. Non-Infringement of Third Party Rights. The Services will not violate
or in any way infringe upon the rights of third parties, including property,
contractual, employment, trade secrets, proprietary information and
non-disclosure rights, or any trademark, copyright or patent rights.
9. TERMINATION
a. Commencement and Renewal. This Agreement shall commence on the date
set forth above and shall remain in effect for one (1) year. Thereafter, this
Agreement shall be renewed automatically without interruption for successive one
(1) month terms at the same terms, conditions and prices as set forth herein.
After the initial one (1) year term, either party may notify the other party, in
writing, of its election not to renew, in which event this Agreement will
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terminate thirty (30) days after receipt of such notice. This Agreement may be
renewed with revised terms, conditions and prices only upon written agreement of
both parties.
b. Termination. Either party, upon giving written notice to the other
party, may terminate this Agreement:
i. if the other party or its employees, consultants or other
agents violate any provision of this Agreement and the violation is not remedied
within thirty (30) days of the party's receipt of written notice of the
violation;
ii. if at any time after the commencement of the Services, NGMC,
in its reasonable judgment, determines that such services are inadequate,
unsatisfactory, or substantially nonconforming to the specifications,
descriptions, warranties, or representations contained herein and the problem is
not remedied within thirty (30) days of the party's receipt of written notice
describing the problem; or
iii. at any time in the event the other party terminates or
suspends its business, becomes subject to any bankruptcy or insolvency
proceeding under Federal or state statute, or becomes subject to direct control
by a trustee or similar authority.
In the event that any of the above events occurs to a party, that party
shall immediately notify the other party of its occurrence.
c. Obligations Upon Expiration or Termination. Upon expiration or
termination of this Agreement, Consultant shall promptly return to NGMC all
computer programs, files, documentation, media, related material and any other
material that, pursuant to Section 6 above, is owned by NGMC. Expiration or
termination of this Agreement shall not relieve either party of its obligations
regarding Confidential Information under Section 10 below.
10. CONFIDENTIAL INFORMATION
a. Non-Disclosure. Each party agrees not to use, disclose, sell,
license, publish, reproduce or otherwise make available the Confidential
Information of the other party except and only to the extent necessary to
perform under this Agreement. Each party agrees to secure and protect the other
party's Confidential Information in a manner consistent with the maintenance of
the other party's confidential and proprietary rights in the information and to
take appropriate action by instruction or agreement with its employees,
consultants or other agents who are permitted access to the other party's
Confidential Information to satisfy its obligations under this Section.
b. Definition. "Confidential Information" means a party's information,
not generally known by non-party personnel, used by the party and which is
proprietary to the party or the disclosure of which would be detrimental to the
party. Confidential Information includes, but is not limited to, the following
types of information (whether or not reduced to writing or designated as
confidential):
i. work product resulting from or related to Services performed
under this Agreement;
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ii. a party's computer software, including documentation;
iii. a party's internal personnel, financial, marketing and
other business information and manner and method of conducting business;
iv. a party's strategic, operations and other business plans and
forecasts;
v. confidential information provided by or regarding a party's
employees, customers, vendors and other contractors; and
vi. the existence of a contractual relationship between the
parties.
c. Confidentiality Agreement With Consultant's Employees. All of
Consultant's employees or agents who perform services for NGMC shall sign a
confidentiality agreement in a form approved by NGMC.
11. INDEMNIFICATION
Consultant agrees to indemnify and shall hold harmless (including payment of
reasonable attorneys' fees) NGMC, its corporate affiliates, and any employee or
agent thereof (each of the foregoing being hereinafter referred to individually
as "Indemnified Party") against all liability to third parties (other than
liability solely the fault of the Indemnified Party) arising from or in
connection with the performance of Services under this Agreement. Consultant's
obligation to indemnify any Indemnified Party will survive the expiration or
termination of this Agreement by either party for any reason. NGMC shall conduct
the defense of any such third party action arising as described herein unless
Consultant and NGMC shall mutually agree that Consultant will conduct the
defense.
12. LIMITATION OF LIABILITY
In no event shall either of the parties hereto be liable to the other for the
payment of any consequential, indirect, or special damages, including lost
profits. The provisions of this Section, however, shall not apply in any way to
Consultant's obligations to replace, regenerate or obtain lost or damaged data
or to indemnify any Indemnified Party.
13. INJUNCTIVE RELIEF
It is hereby understood and agreed that damages shall be an inadequate remedy in
the event of a breach by Consultant of this Agreement and that any such breach
by Consultant will cause NGMC great and irreparable injury and damage.
Accordingly, Consultant agrees that NGMC shall be entitled, without waiving any
additional rights or remedies otherwise available to NGMC at law or in equity or
by statute, to injunctive and other equitable relief in the event of a breach or
intended or threatened breach by Consultant.
14. ASSIGNMENT
a. Consent Required. Consultant shall not assign or subcontract the
whole or any part of this Agreement without NGMC's prior written consent.
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b. Subcontracting. Any subcontract made by Consultant with the consent
of NGMC shall incorporate by reference all the terms of this Agreement.
Consultant agrees to guarantee the performance of any subcontractor used in
performance of the Services.
15. OTHER PROVISIONS
a. Status as Independent Contractor. Consultant and NGMC are contractors
independent of one another and neither party's employees will be considered
employees of the other party for any purpose. This Agreement does not create a
joint venture or partnership, and neither party has the authority to bind the
other to any third party.
b. Applicable Law and Forum. This Agreement shall be governed and
construed in accordance with the laws of the State of Virginia without regard to
the conflicts of laws or principles thereof. Any action or suit related to this
Agreement shall be brought in the state or federal courts sitting in Virginia.
c. Notices. Any notice or other communication required or permitted
under this Agreement shall be given in writing and delivered by hand or by
registered or certified mail, postage prepaid and return receipt requested, to
the following persons (or their successors pursuant to due notice):
If to NGMC:
Attn: David Morey
Next Generation Media Corp.
8380 Alban Road
Springfield, VA 22150
If to Consultant:
Attn: Paul Cummings
101 Oak Street
Brewster, NY 10509
d. Waiver. No waiver by NGMC of any breach by Consultant of any of the
provisions of this Agreement shall be deemed a waiver of any preceding or
succeeding breach of the same or any other provisions hereof. No such waiver
shall be effective unless in writing and then only to the extent expressly set
forth in writing.
e. Entire Agreement. This Agreement, including Appendices A and B,
constitutes the entire agreement between Consultant and NGMC.
f. Modifications. No modification of this Agreement shall be effective
unless in writing and signed by both parties.
g. Severability. If any provision of this Agreement is invalid or
unenforceable under any statute or rule of law, the provision is to that extent
to be deemed omitted, and the remaining provisions shall not be affected in any
way.
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IN WITNESS WHEREOF, and in acknowledgment that the parties hereto have read and
understood each and every provision hereof, the parties have executed this
Agreement on the date first set forth above.
NGMC:
/s/ David Morey
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David Morey, President
CONSULTANT:
/s/ Paul Cummings
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Paul Cummings
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EXHIBIT A
STATEMENT OF WORK
1. DESCRIPTION OF SERVICES
a. Services. Consultant agrees to perform and provide to NGMC, services
for development of a web site as a work made for hire ("Site") that NGMC desires
to make available on the Internet as set forth herein, as well as other
development services related to maintaining and improving the Site and
consultation with NGMC employees relating to the same.
b. Specifications. Consultant shall use its best professional efforts to
design, author and develop the Site in accordance with the specifications
identified in Schedule 1, and the highest professional standards. The Site shall
incorporate certain materials provided by Consultant which include, without
limitation, computer software (in object or source code form), script,
programming code, data, information, HTML code, trademarks, images,
illustrations, graphics, multimedia files and/or text ("Consultant Content").
The Site shall also incorporate the materials, if any, provided by NGMC,
including, trade or service marks, images, illustrations, graphics, multimedia
files and/or text ("NGMC Content").
c. Post-Acceptance Consultation. For a period of six (6) months
following NGMC's acceptance of the Site, as provided below, Consultant shall use
its best professional efforts to support NGMC's employees in the design,
development, improvement, update, error correction, and maintenance of the Site.
Such consultations shall include design and development of revisions to the
Site, telephone consultation with NGMC employees regarding the design and
maintenance of the Site, and [insert other descriptions here], but shall not
include major upgrades or enhancements to the Site or require on-site travel to
NGMC's facilities. Such post-acceptance consultations shall be provided at no
additional cost to NGMC.
Any post-Acceptance consultations initiated by NGMC's employees for additional
design, development or maintenance that Consultant deems to exceed the scope of
this Statement of Work shall be reported to NGMC, and Consultant shall evaluate
such requests and submit to NGMC for NGMC's acceptance a written price quote
that specifies any additional fees required to accomplish the work. If NGMC
agrees to Consultant's price quote, the parties shall enter into a Supplemental
Statement of Work as set forth in this Agreement.
2. LICENSE
In consideration of Consultant's performance of all obligations under this
Agreement, NGMC grants to Consultant, and Consultant accepts from NGMC, a
non-exclusive, royalty-free license for the term of this Agreement to edit,
modify, adapt, translate, exhibit, publish, transmit, copy, prepare derivative
works from and use the NGMC Content solely in connection with the Site and/or
Consultant's performance of this Agreement.
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3. SITE DEVELOPMENT AND DELIVERY
a. Beta Version. Within thirty (30) days of NGMC's delivery of the NGMC
Content, if any, to Consultant, Consultant shall deliver to NGMC, for NGMC's
review and approval, a preliminary working copy of the Site ("Beta Version"). A
Beta Version shall include at least one (1) prototype of each page that will
reside within the Site, in conformance with the specifications set forth in
Schedule 1, or as agreed by the parties during the development process.
b. Revisions. Upon delivery of a Beta Version to NGMC, NGMC shall have
thirty (30) days to review such Beta Version and provide a written request for
revisions thereto. Upon receipt of such request for revision, Consultant shall
implement such revisions and deliver to NGMC, for NGMC's review and approval, a
revised Beta Version, which upon acceptance shall become the final Site.
c. Delivery. Consultant shall use its best efforts to deliver the Site,
the Beta Version or any portion thereof ("Deliverables"), in accordance with the
highest professional standards and in accordance with the specifications set
forth at Schedule 1.
d. Acceptance. Upon delivery of the final Site, NGMC shall have thirty
(30) days to evaluate and test the Site for conformity with the specifications
set forth in Schedule 1 and any revisions as provided in paragraph (b) above,
and provide to Consultant written notice of acceptance or rejection, specifying
the basis therefor. If NGMC rejects the Site, Consultant shall have thirty (30)
days to implement any changes necessary to cure the reason(s) for rejection and
resubmit such Site to NGMC. The procedure set forth in this Section shall be
repeated until either the Site is accepted or NGMC terminates this Agreement.
4. PROPRIETARY RIGHTS
a. Ownership. Except as expressly provided under paragraph (b), the
Site, Beta Version(s) and Consultant Content ("Works") shall be works made for
hire and the property of NGMC. NGMC shall own all right, title and interest
(including copyright and other proprietary or intellectual property rights) in
the Works and all legally protectable elements, contributions, collective works
thereof or derivative works thereto. To the extent that ownership of any Work
does not automatically vest in NGMC by virtue of this Agreement or otherwise,
Consultant irrevocably transfers and assigns to NGMC all right, title and
interest in the Works and protectable elements or derivative works thereof.
b. Moral Rights Waiver. Consultant understands that the term "moral
rights" means any rights of paternity or integrity, including any right to claim
authorship of a copyrightable work, to object to a modification of such
copyrightable work, and any similar right existing under the judicial or
statutory law of any country in the world or under any treaty, regardless of
whether or not such right is denominated or generally referred to as a "moral
right," including, without limitation, the rights of attribution and integrity
in works of visual art pursuant to 17 U.S.C. Section 106A. Consultant
irrevocably waives and agrees never to assert any moral rights Consultant may
have in any Works, even after any termination or expiration of this Agreement.
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c. Consultant Works. In the event that Consultant cannot grant the
rights set forth at Section 4(a) with respect to any portion of the Site,
including Consultant Content, Consultant shall identify: (i) the nature of such
Works; (ii) the owner of such Works; (iii) any and all restrictions or royalty
terms applicable to Consultant's use of such Works in connection with the
Services; and (iv) the source of Consultant's right and authority to use, copy,
create derivative works, license or display such Works in connection with the
Services.
d. License of Consultant Works. In consideration of NGMC's performance
of its material obligations to Consultant expressly set forth in this Agreement,
Consultant grants to NGMC, and NGMC accepts from Consultant, a perpetual,
irrevocable, non-exclusive and worldwide license, to copy, perform, display,
prepare derivative works and use Consultant Works on and within the Site for
NGMC's business purposes.
e. Limitations. Consultant shall not incorporate into any Work any
material, text, graphic, sound or animation in any form that, without
limitation, may be obscene, defamatory, harassing, grossly offensive, malicious,
or that actually or potentially infringes or misappropriates the copyright,
trademark, proprietary or other intellectual property right of any person.
5. FEE SCHEDULE
a. Fees. NGMC will pay Consultant for the Services as follows: $25,000
cash upon execution hereof or, in the sole discretion of NGMC, 150,000 shares of
the Common Stock of NGMC; provided, however, that in the event that NGMC elects
to pay for such services in shares of its Common Stock, such shares shall be
issuable hereunder as soon as reasonably practicable following the filing of the
Company's registration statement on Form S-8 as set forth below.
b. Registration Rights. In the event that NGMC elects to provide any
shares of its Common Stock hereunder, NGMC agrees to file, as soon as reasonably
practicable, a registration statement on Form S-8 with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Act") relating to an aggregate of 150,000 shares of its Common Stock. NGMC
shall bear the expenses of such registration and to promptly have certificates
representing the shares issued without a restrictive legend promptly upon filing
of such Form S-8 registration statement. The Consultant agrees not to resell the
shares of Common Stock without compliance with the Act and any applicable state
securities laws.