User Oriented Web Site Development Agreement

AGREEMENT (the "Agreement") Made as of the ___ day of _______, 199__ (the "Effective Date") by and between Brown Publishing, a _____________ corporation having its principal place of business at ABC Avenue, New York, New York ("Brown") and West Systems, Inc., a __________ corporation having its principal place of business at First Street, New York, New York ("West") (Brown and West each being referred to herein as a "Party" and collectively as the "Parties").

WHEREAS, Brown desires to establish a branded web site on the World Wide WEB (the "Brown Site") to make available certain materials proprietary to Brown; and

WHEREAS, West is in the business of providing software, design, and computer consulting services in connection with creating and operating sites on the World Wide Web and desires to design, develop and implement the Brown Site for Brown and provide certain Internet training, skills and transition assistance to Brown on the terms and subject to the conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants set forth herein, West and Brown hereby agree as follows:

1. Definitions

1.1 Beta Test

The term "Beta Test" shall have the meaning set forth in Section 2.4 hereof.

1.2 Brown Confidential Information

The term "Brown Confidential Information" shall mean information in the possession or under the control of Brown relating to the technical, marketing, product and/or business affairs of Brown; Brown Content; source code of any Software Deliverables; user information, including without limitation any information pertaining to usage of the Brown Site; information obtained from server logs or other records of users accessing the Brown Site; proprietary and trade secret information of Brown in oral, graphic, written, electronic or machine readable form; and the existence of, and terms and conditions of, this Agreement. Brown Confidential Information shall not include information which can be demonstrated: (i) to have been rightfully in the possession of West from a source other than Brown prior to the time of disclosure of said information to West hereunder ("Time of Disclosure"); (ii) to have been in the public domain prior to the Time of Disclosure; (iii) to have become part of the public domain after the Time of Disclosure by a publication or by any other means except an unauthorized act or omission or breach of this Agreement on the part of West, its employees, or unauthorized act or omission or breach of this Agreement on the part of West, its employees, or agents; or (iv) to have been supplied to West after the Time of Receipt without restriction by a third party who is under no obligation to Brown to maintain such information in confidence.

1.3 Brown Content

The term "Brown Content" shall mean all materials provided by Brown to West hereunder, including but not limited to text, graphics, or materials generated in any form or media.

1.4 Brown Marks

The term "Brown Marks" shall mean the trademarks, trade names, service marks, or logos owned, controlled, or licensed by Brown.

1.5 Deliverables

The term "Deliverables" shall means the deliverables to be provided to Brown by West hereunder as described herein and/or in Schedule A hereto.

1.6 Design Direction

The term "Design Direction" shall mean a design proposal for the Brown Site, including without limitation a complete storyboard description of the Brown Site showing the opening page, content and link structure, logo design, descriptions of elements containing Java, JavaScript, Shockwave or RealAudio, and sample interactions within the Brown Site.

1.7 Documentation

The term "Documentation" shall mean user and system documentation which explains fully the operation and design of each Deliverable.

1.8 Editing Tools

The term "Editing Tools" shall mean customized electronic data interfaces, forms, and templates designed for editing and publishing the Brown Center on the World Wide Web, including without limitation utilities for the conversion of Brown Content into HTML, Java, JavaScript, Shockwave, and RealAudio formats.

1.9 Expenses

The term "Expenses" shall mean reasonable expenditures made by West for copying, postage, overnight mail, messenger service, and travel (excluding travel not specifically requested by Brown) necessary to the performance of this Agreement.

1.10 Final Acceptance

The term "Final Acceptance" shall mean Brown's acceptance pursuant to Article 3 hereof of the Brown Site operating in a live environment on the Host Server.

1.11 HTML

The term "HTML" shall mean hypertext markup language.

1.12 Host Server

The term "Host Server" shall mean a server operated by the Hosting Service, configured as described in the Server Specifications, on which the Brown Site will operate.

1.13 Hosting Service

The term "Hosting Service" shall mean a third party designated by Brown to host the Brown Site.

1.14 Launch Date

The term "Launch Date" shall mean the date on which the Brown site, operating on the Host Server, is operational and publicly available to users of the World Wide Web.

1.15 Marketing Plan

The term "Marketing Plan" shall mean a strategy for publicizing the Brown Site in offline and online media. As part of the Marketing Plan, West will, at no additional charge to Brown, register, list or otherwise identify the Brown Site to popular Internet search engines and other sites of interest to users of the Brown Site.

1.16 Optional Services

The term "Optional Services" shall mean the services that may be requested by Brown to be provided by West to Brown pursuant to the terms of Article 12 herein.

1.17 Performance Specifications

The term "Performance Specifications" shall mean the attributes of performance set forth in Exhibit B hereto which the Brown Site can be expected to achieve.

1.18 Production Schedule

The term "Production Schedule" shall mean the Brown Site production schedule provided by West pursuant to Section 2.1 hereof and accepted by Brown pursuant to the terms of Article 3, and listing the Deliverables by delivery date. The Production Schedule shall be in the form set forth in Schedule H.

1.19 Proposal

The term "Proposal" shall mean the document attached as Schedule G hereto. The Proposal is intended to constitute a material part of this Agreement.

1.20 Server Specifications

The term "Server Specifications" shall mean the physical configuration described in Exhibit B which is necessary to operate the Brown Site in accordance with the terms and conditions of this Agreement.

1.21 Services

The term "Services" shall mean the services provided by West to Brown hereunder.

1.22 Site Software

The term "Site Software" shall mean the software programs capable of being run from the Brown Site by users thereof.

1.23 Software Deliverables

The term "Software Deliverables" shall mean all Deliverables containing software components. Each software Deliverable shall include a copy of the source code, object code and Documentation therefor.

1.24 Term

The term "Term" shall have the meaning set forth in Section 14.1.

1.25 Text-Only Version

The term "Text-Only Version" shall mean a version of the Brown Site accessible to Internet users accessing the Brown Site by means of text-only browsers.

1.26 Updates

The term "Updates" shall mean enhancements made by West to any Software Deliverables during the Term. Such enhancements shall include all modifications to the Software Deliverables which increase the speed, efficiency or ease of operation of the Software Deliverables, or add additional capabilities to or otherwise improve the functionality or appearance of the Brown Site.

1.27 West Software

The term "West Software" shall mean all software existing and owned or licensed by West at the time this Agreement is executed (except for software developed or obtained in anticipation of executing this Agreement), and which is employed by West in connection with the Brown Site.

2. Services

West shall perform the Services (including without limitation the production of the Deliverables) outlined in this Article 2 and/or in Schedule A, and as otherwise subsequently agreed to in writing between the parties. All Services shall be performed and all Deliverables shall be delivered in accordance with the Production Schedule. Each Deliverable rendered hereunder will be subject to Brown's acceptance pursuant to the procedure set forth in Article 3. The Deliverables include the following:

2.1 Production Schedule

West shall deliver a proposed Production Schedule within ________ (_____) business days of the Effective Date hereof. If West fails to timely deliver a Production Schedule, or West delivers a Production Schedule that Brown finds unacceptable, Brown shall have the right to terminate this Agreement pursuant to Section 14.4 hereof.

2.2 Design Directions

West shall deliver to Brown, in writing and in accordance with the Production Schedule, ________ (_____) substantially different fully detailed Design Directions for the Brown Site. Upon Brown's acceptance of a Design Direction pursuant to Article 3, such Design Direction will be incorporated herein by reference and deemed to be part of this Agreement. If West fails to timely deliver the Design directions or West delivers Design Directions which Brown in its sole discretion finds unacceptable, Brown shall have the right to terminate this Agreement pursuant to Section 14.4 hereof.

2.3 Other Deliverables

Upon Brown's acceptance of a particular Design Direction as the concept upon which the Brown Site should be based, West shall develop and deliver all Other Deliverables identified in Schedule A hereto in accordance with the Production Schedule consistent with such Design Directions, such Deliverable being subject separately to the acceptance procedure set forth in Article 3.

2.4 Beta Testing

Within ________ (_____) business days after Brown's acceptance of all of the foregoing Deliverables, West and Brown will begin to jointly test the Brown site on a server provided and operated by West which will be configured in accordance with the Server Specifications (the "Beta Test"). The Beta Test will be conducted pursuant to the procedure specified in Schedule A, shall in no event be less than ________ (_____) weeks in duration, and shall demonstrate to the reasonable satisfaction of Brown that the Brown Site was designed and can be operated in accordance with the terms and conditions of this Agreement.

2.5 West Operational Obligations

Although the Parties intend for the Brown Site to operate in a live environment through the Hosting Service, Brown shall have the option to require West to operate the Brown site in a live environment for a period of not more than ________ (_____) months after Final Acceptance. Brown shall give West notice of Brown's exercise of this option no later than the commencement of the Beta Test, and thereafter on a monthly basis, no later than ________ (_____) days in advance of the next month. In consideration of West's operation of the Brown site, Brown shall pay West a monthly operational fee of ________ ($_______) for each month in which West operates the Brown Site, prorated on a 30 (thirty) day month basis for periods of less than one month.

2.6 Transfer to Hosting Service

Upon notice from Brown, West shall transfer the Brown Site to the Host Server. Such transfer shall include: (i) delivery of full and complete copies of all Software Deliverables; and (ii) assignment of all necessary rights under third party agreements to Brown or the Host Service. West shall fully cooperate with Brown and the Hosting Service, will direct the Hosting Service, and will have ultimate responsibility for effectuating the transition. West will promptly inform Brown of any known failure by the Hosting Service to assist in effectuating the transition. Brown will use its best efforts to cause the Hosting Service to reasonably cooperate in the transition. West will continue to host the Brown Site until the transfer has been completed and accepted by Brown.

2.7 Updates

During the Term, West shall maintain the Site Software, including, without limitation, provision to Brown of the source and object code for all Updates developed during the Term, as well as a description of such Update's functionality. Brown shall have the right not to utilize any such Update.

2.8 Maintenance

At any time during the Term, if Brown demonstrates to West a reproducible error in the Brown site, West shall correct such error and redeliver source and object code for such correction as soon as possible but in no event later than ________ (_____) business days.

2.9 Training

West will train the Brown personnel designated by Brown to use and maintain the Site Software and Editing Tools and any Updates thereto. Such training shall consist of at least _______ (____) business days of training provided at a location designated by Brown.

2.10 Marketing Plan

West shall deliver to Brown the Marketing Plan in accordance with the Production Schedule. All actions planned to be taken by West pursuant to the Marketing Plan shall be subject to Brown's prior written consent as to content and context. West shall not itself use, nor shall it authorize any third party to use, Brown Content or Brown's name or Brown's Marks in any manner inconsistent with this Agreement.

3. Acceptance Testing and Payment

3.1 Testing of Deliverables

Upon the completion of any Deliverable hereunder, West shall deliver to Brown _________ (_____) copies of such Deliverables (except in the case of Software Deliverables, in which case West will allow at least ________ (______) Brown representatives to simultaneously access and use the software Deliverables). Brown shall have the acceptance period specified for each Deliverable in the production Schedule to evaluate the Deliverable. At the end of such acceptance test period, Brown shall provide written notice of: (i) acceptance of such Deliverable; or (ii) rejection of such Deliverable, specifying the basis therefor. In the event Brown fails to provide such notice within the time period set out in the Production Schedule, the Deliverable will be deemed to be rejected, and Brown shall provide the basis for such rejection as promptly thereafter as practicable.

3.2 Rejection of Deliverables

If Brown rejects a Deliverable West will have ________ (_____) business days to implement any corrections, amendments or other changes necessary to resolve Brown's objections to such Deliverable. Upon implementation of such changes, West shall redeliver such Deliverable to Brown for acceptance pursuant to Article 3 herein, the procedure set forth therein to be repeated until either the Deliverable is accepted or Brown terminates the Agreement pursuant to Section 14.4 hereof.

3.3 Payment

Upon Brown's acceptance of a Deliverable, Brown shall pay any fees due upon such acceptance pursuant to the Payment Schedule set forth in Schedule D hereto. West is responsible for all cost-overruns and unanticipated excess expenses or costs not due to the sole fault of Brown.

3.4 Expenses

West shall provide Brown with a detailed invoice listing and describing all Expenses for each calendar month period in the Term, with the first such period commencing upon the Effective Date (each such period being an "Invoice Period"). Subject to the terms and conditions of this Agreement, Brown shall reimburse West for Expenses ________ (_____) days after the month in which such invoice is received. Unless such Expense is previously authorized in writing by Brown, Brown shall not reimburse any Expense (i) in excess of ___________ dollars ($______) for any Invoice Period or (ii) any Expense if the aggregate Expenses reimbursed during the Term equal _____________ dollars ($_______). In connection with any request for reimbursement, West shall provide documentation for such Expenses in a form acceptable to Brown.

3.5 Right of Artistic and Editorial Control

Brown shall have exclusive artistic and editorial control over the Brown Site, including, without limitation, the implementation of the Brown Content on the Brown Site and the design and look and feel of the Brown Site.

4. Proprietary Rights

4.1 Grant of License by Brown

As between Brown and West, Brown shall own all right, title and interest in and to the Brown Content. Brown hereby grants to West a non-exclusive, non-transferable license to use the Brown Content under the terms and conditions of this Agreement solely in connection with the establishment of the Brown Site. West may make only such copies of the Brown Content as may be necessary to perform its obligations under this Agreement. Except for the limited license set forth in this Section 4.1, Brown expressly reserves all other rights in and to the Brown Content.

4.2 Copyright Notice

West shall cause the following copyright notice (or any other notices as instructed by Brown) to be displayed on each page of the Brown Site on which Brown Content is viewed: "_____________________________."

4.3 Trademark Usage

West shall not use any Brown Content or Brown marks, logos or other identifiers in any manner other than as is expressly provided for in this Agreement, without Brown's prior written approval.

4.4 Publicity

Without limitation of Section 4.3, West and its employees, agents and representatives will not, without prior written consent in each instance, use in advertising, publicity or any other promotional endeavor any Brown mark, the name of Brown mark, the name of Brown or any Brown affiliate, or any officer or employee of Brown, or any trade name, trademark, or trade device used by Brown or its affiliates; or represent, directly or indirectly, that any product or service provided by West has been approved or endorsed by Brown, or refer to the existence of this Agreement in press releases, advertising or materials distributed to West's prospective customers.

4.5 Work Made For Hire

Except for the West Software, all materials, products, and modifications developed or prepared by West under this Agreement, including without limitation forms, images and text viewable on the Internet, any HTML elements relating thereto, and software, including the Deliverables and any Updates thereto, are the property of Brown and all right, title and interest therein shall vest in Brown and shall be deemed to be a "work made for hire" under United States copyright law and made in the course of this Agreement.

4.6 West Software

The West Software is and shall remain the property of West. West grants to Brown a perpetual, irrevocable, non-exclusive, license for Brown or its agents to use, modify, copy, transfer and maintain the West Software in conjunction with the operation and maintenance of the Brown Site.

4.7 Rights Clearance

Brown shall be responsible for obtaining any permissions necessary to place the Brown Content on the Brown Site. Except with respect to the Brown Content, West shall have the full and complete responsibility to obtain any rights, licenses, clearances, releases or other permissions necessary for Brown to utilize the Brown Site as contemplated by this Agreement.

4.8 Approval Required for Revisions

West shall not alter, edit, or make any change in the Brown Content without Brown's prior written approval.

4.9 Non-Competition

West shall not be entitled to see or provide any of the Software Deliverables to third parties without the prior written consent of Brown. Notwithstanding the above, the Parties acknowledge West's right to develop software for other customers as long as such software does not include an arrangement of elements substantially similar to any in the Software Deliverables.

5. Site Advertising

Brown shall have the exclusive right to sell advertising on the Brown Site. West agrees that it will (i) at the request of Brown, submit a proposal, including fixed price quotations, for the production of such advertising, which proposal shall be competitive with then-current market rates for similar projects; and (ii) cooperate fully with any entity selected by Brown to produce, design, or develop advertising.

6. Confidentiality

West acknowledges that it shall, in performing the Services for Brown hereunder, have access to or be directly or indirectly exposed to Brown Confidential Information. West shall hold confidential all Brown Confidential Information and shall not disclose or use such Brown Confidential Information without express written consent of Brown. West shall use reasonable measures at least as strict as those West uses to protect its own Confidential Information. Such measures shall include, without limitation, requiring employees and independent contractors of West to execute a non-disclosure agreement before obtaining access to the Brown Confidential Information.

7. Maintenance Option

Brown shall have the option, at any time prior to _____________ (______) days before the expiration of the Term, to extend the Term of this Agreement for an additional ________ (_____) year period. In the event Brown makes such an election, Brown shall pay to West an extension fee of _____________ ($), payable on a __________ basis, and West's obligations hereunder, including without limitation those under Sections 2.7 and 2.8, shall continue.

8. Warranties, Representations and Covenants

8.1 By West

West represents and warrants that: (i) the Brown Site will be designed and will operate in conformance with the terms and conditions of this Agreement; (ii) the Brown Site will operate fully and successfully on hardware configured as set forth in the Server Specifications; (iii) West has fully authority to enter into this Agreement; (iv) all obligations owed to third parties with respect to the activities contemplated to be undertaken by West pursuant to this Agreement are or will be fully satisfied by West, so that Brown will not have any obligations with respect thereto; (v) West is the owner of or otherwise has the right to use and distribute all materials and methodologies used in connection with providing the Services hereunder; (vi) the software and other materials used by West in fulfilling its obligations under this Agreement (except the Brown Content provided by Brown) do not now and will not infringe upon any copyright, patent, trade secret contract right or other third party right; (vii) the Deliverables provided hereunder, including without limitation Deliverables provided pursuant to Optional Services, do not now and will not infringe upon any copyright, patent, trade secret or other third party right; (viii) the Brown Site shall not contain any Trojan horses, worms or viruses; (ix) West will comply with all applicable federal, state and local laws and regulations in the performance of its obligations hereunder; and (x) the Brown Site, as designed, will not violate any federal, state, or local law or regulation.

8.2 By Brown

Brown represents, warrants and covenants that: (i) it has full authority to enter into this Agreement; and (ii) the Brown Content will not infringe upon any copyright, patent, trademark, trade secret, contract right or other third party right; and (iii) all obligations owed to third parties with respect to the activities contemplated to be undertaken by Brown pursuant to this Agreement are or will be fully satisfied by Brown so that West will have not have any obligations with respect thereto.

9. Indemnification

Each Party hereto shall indemnify, defend, and hold harmless the other Party, its directors, officers, employees and agents with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that it is based upon a claim that: (i) if true, would constitute a breach of any of the indemnifying Party's representations, warranties, or agreements hereunder; or (ii) arises out of the gross negligence or willful misconduct of the indemnifying Party. In claiming any indemnification hereunder, the Party claiming indemnification (the "Claimant") shall provide the other Party with written notice of any claim which the Claimant believes calls for indemnification under this Agreement. The Claimant may, at its own expense, assist in the defense if it so chooses, provided that the other party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the Claimant shall not be final without the Claimant's written consent.

10. Insurance

10.1 Purchase and Maintenance

Throughout the Term, West shall procure and maintain at its own expense insurance naming Brown as an additional insured and an additional loss payee, which insurance must be satisfactory to Brown, of the following types and in the following amounts:

_____________________;

_____________________; and

_____________________;

10.2 Insurance Documentation

All insurance to be maintained by West under this Article 10 shall be with companies licensed to do business in the State of _______ and acceptable to Brown. West shall furnish to Brown certificates of insurance or other appropriate documentation (including evidence of renewal of insurance) evidencing all coverage referenced in this Article 10. Such certificates or other documentation will include a provision whereby _________ (_____) days' notice must be received by Brown prior to cancellation or material alteration of the coverage by either West or the insurer in question.

11. LIMITATION OF LIABILITY

EXCEPT WITH RESPECT TO LIABILITY ARISING FROM A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, (A) NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), AND (B) EXCEPT WITH RESPECT TO LIABILITY ARISING FROM BROWN'S INDEMNIFICATION OBLIGATIONS HEREUNDER, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, THE LIABILITY OF BROWN HEREUNDER SHALL NOT EXCEED THE FEES, IF ANY, DUE AND OWING TO WEST HEREUNDER.

12. Optional Services

During the Term, Brown shall have the right to request from West a proposal with respect to any of the Optional Services set forth in Schedule E hereto. Within ________ (_____) business days of such request, West shall provide Brown with a written proposal specifying all Deliverables to be provided under such Optional Services, a related production schedule for the production and delivery of such Deliverables, and a fixed price for the creation and delivery of such Deliverables. Upon Brown's written approval of such proposal, such proposal shall be deemed an approved addition (an "Approved Addition") and shall be deemed an amendment to this Agreement. All Deliverables shall be subject to acceptance by Brown pursuant to Article 3 hereof.

13. Change Control Procedure

During the Term, Brown shall have the right to request from West changes in the scope of work as set forth in this Agreement or as determined by an accepted Deliverable. West shall evaluate the impact of each requested change, and use its best efforts to respond with a proposal to effectuate the change without any material impact on the Production Schedule, or on the cost of the Services or Deliverables. West shall, within a reasonable time, inform Brown in writing of the impact, if any, of the proposed change on the Production Schedule and/or the cost of the Services or Deliverables. Upon Brown's written approval of West's written response, such response shall be deemed to be an approved change (an "Approved Change"), and shall be deemed an amendment to this Agreement.

14. Term and Termination

14.1 Term

The term of this Agreement shall commence on the Effective Date and shall continue until the ______________ (______) year anniversary of the Final Acceptance, unless this Agreement is earlier terminated.

14.2 Termination for Breach

Either Party may terminate this Agreement upon not less than _____________ (______) days' written notice if the other Party materially breaches any of the terms of this Agreement provided, however, that this Agreement will not terminate if the non-terminating party has cured the breach within the _____________ (_____) day period.

14.3 Termination for Bankruptcy and Similar Events

Either Party may terminate this Agreement, effective immediately upon written notice, if: (i) all or a substantial portion of the assets of the other Party are transferred to an assignee for the benefit of creditors, to a receiver or trustee in bankruptcy; (ii) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within ________ (_____) days; or (iii) the other Party is adjudged bankrupt or insolvent.

14.4 Termination During Performance of Services

During the course of West's performance of Services hereunder, Brown shall have the right to terminate this Agreement upon written notice to West in the event that: (i) West fails to timely deliver a Production Schedule; (ii) West delivers a Production Schedule that Brown in its sole discretion finds unacceptable; (iii) West fails to timely deliver the Design Directions; (iv) West delivers Design Directions which Brown in its sole discretion finds unacceptable; (v) Brown rejects the same Deliverable twice; or (iv) Brown rejects any ________ (_____) Deliverables rendered by West during the course of the Services. In the event of a termination of this Agreement pursuant to this Section 14.4, West shall immediately pay to Brown a full refund of all fees paid to West under this Agreement.

14.5 Termination for Convenience

At any time during the Term, Brown shall have the right to terminate this Agreement without cause upon _______ (_____) days written notice to West. In the event of such a termination, Brown shall pay to West all fees due for any Deliverables accepted at the time of termination.

14.6 Obligations Upon Termination or Expiration

Upon termination or expiration of this Agreement, West shall immediately return to Brown all copies of Brown Confidential Information, and all records of user information in the possession or control of West.

14.7 Transfer of Brown Site

Upon the request of Brown, or upon the termination or expiration of this Agreement, whichever occurs first, West shall, at no additional cost, provide all necessary assistance to Brown and third parties authorized by Brown to transfer the Brown Site or portions thereof to an alternate server to be owned and operated by an entity of Brown's choice. Such transition assistance shall include, but shall not be limited to, (i) delivery of full and complete copies of all Software Deliverables; and (ii) assignment of all necessary rights under third party agreements to Brown or the Host Service (as directed by Brown).

14.8 Survival

Upon expiration or termination of this Agreement, the provisions of Article 1, Sections 4.3-4.9 both inclusive, Articles 5, 6, 8, 9, 11, and 16 shall survive.

15. Time of the Essence

West recognizes that time is of the essence in this Agreement and that the failure to develop, test and deliver the deliverables hereunder in accordance with the Delivery Schedule shall result in expense and irreparable damage to Brown.

16. General

16.1 No Joint Venture

The Parties agree and acknowledge that West is an independent contractor. This Agreement shall not be deemed to create a partnership or joint venture and neither Party is the other's agent, partner, employee, or representative. Neither Party hereto shall have the right to obligate or bind the other Party in any manner whatsoever, and nothing herein contained shall give or is intended to give any rights of any kind to any third persons.

16.2 Force Majeure

Nether Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed, restricted or prevented by reason of any act of God, fire, natural disaster, act of government, strikes or labor disputes, inability to provide raw materials, power or supplies, or any other act or condition beyond the reasonable control of the party in question.

16.3 Partial Invalidity

Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity.

16.4 No Waiver

The failure of either Party to partially or fully exercise any right or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.

16.5 Assignment

West shall not assign any of its rights or obligations under this Agreement to any other entity without Brown's prior written consent. All the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable by the respective successors and assigns of the Parties.

16.6 Notices

Any notice required or permitted to be sent shall be in writing and shall be sent in a manner requiring a signed receipt, and if mailed then mailed by registered or certified mail, return receipt requested. Notice is effective upon receipt. Notices to Brown shall be sent to the attention of the General Counsel or such other person(s) as Brown may from time to time designate.

16.7 Entire Agreement

This Agreement, including the Schedules hereto, sets forth the entire agreement between the Parties on this subject and supersedes all prior negotiations, understandings and agreements between the Parties concerning the subject matter. No amendment or modification of this Agreement shall be made except by a writing signed by the Party to be bound thereby or the successor or assign of such Party.

16.8 Governing Law

This Agreement shall be governed and interpreted in accordance with the laws of the state of __________ without regard to principles of conflict of laws. The Parties agree to submit to the exclusive jurisdiction over all disputes hereunder or related hereto in the federal and state courts in the State of _______________ located in ______________ County.

16.9 Headings

The section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

16.10 Counterparts

This Agreement may be executed in counterparts, and each of which shall be deemed an original and all of which together shall constitute one and the same document.

IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date first above written.

BROWN PUBLISHING WEST SYSTEMS, INC.

By:________________________ By:________________________

Print Name:_______________ Print Name:________________

Title:_____________________ Title:_____________________

Date:______________________ Date:______________________

Taken from: Forms on Disk for Computer Law: Drafting and Negotiating Forms and Agreements by Richard Raysman and Peter Brown