Ceglia v. Zuckerberg et al

Filing 658

CONTINUATION OF EXHIBITS by Facebook, Inc., Mark Elliot Zuckerberg. to 657 Reply/Response Appendix of Selected Previously-Filed Exhibits filed by Facebook, Inc., Mark Elliot Zuckerberg. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Snyder, Orin)

EXHIBIT B

Case 1:10-cv-00569-RJA -LGF Document 331

Filed 03/26/12 Page 85 of 90

[TRANSCRIPTION OF .TIF DOCUMENT BY GIBSON DUNN PERSONNEL]
General Conditions of Purchase

STREET FAX
SECTION 1 - GENERAL PROVISIONS
1.
Definitions
The following terms have the meaning specified when used
herein:
PURCHASER - Street Fax Inc.
CONTRACTOR/SELLER - The entity, as agents, employees,
suppliers, or sub-contractors, furnishing materials, equipment, or
services hereunder, as identified on Purchase Order.
CUSTOMER - the entity contracting for construction or other
services from Purchaser or which the goods and/or services
provided hereunder are for incorporation into the work or are
required to facilitate completion of Purchaser's contract with such
entity.
PRIME CONTRACT - The contract between Purchaser and
Customer and all provisions, specifications and drawings
referenced therein.
2.
Entire Agreement
The contract between the Purchaser and Seller shall consist of
and be contingent upon the Seller's acceptance of the Purchase
Order, the provisions written on the face thereof, all provisions,
specifications, and drawings referred to therein and these printed
terms and conditions with appendices. In the event of conflict
between the provisions written on the face of this Purchase Order
and those contained in these printed terms and conditions, the
provisions written on the face of the Purchase Order shall prevail.
This Purchase Order shall not be modified either orally or by
failure of either party to enforce their rights hereunder. It is a
condition of this Purchase Order that provisions printed on or
otherwise contained in any questions, order acknowledgement,
shipping document, or other instrument of the seller shall be of
no force or effect.
3.
Payment Terms
No insurance or premium charges or price increases will be
allowed unless authorized by Purchaser in writing. No increase in
price from that stated on the face hereof will be considered
throughout the duration of the order.
The Agreed upon Costs that the Seller and the Buyer have agreed
upon are as follows: Buyer agrees to pay seller the Sum of $3,000
at the onset of this contract. The Buyer agrees to pay seller $2,000
on the due date of the project, and upon completion Buyer agrees
to pay seller an additional $13,000 US dollars within Thirty days
of delivery of the Final approved program. Late fees are agreed to
be a 5% deduction for the seller if project is not completed by
due date and an additional 1% deduction for each day the project
is late thereafter. Buyer agrees to pay a 3.5% late fee per month
on the balance owed the seller and further agrees to pay a
maximum of $2,000 per month to seller or acknowledge that
failure to comply will result in the seller having the right to offline
the site Streetfax.com and remove his program.
The Agreed upon project due date is May 31, 2003.
4.
Changes
a)
BY PURCHASER - Purchaser agrees that no further
revision shall be implemented until or unless approved by seller.
Those revisions shall be transmitted for written approval to seller.
b)
BY SELLER - The Seller agrees that no further revision
shall be implemented until or unless approved by Street Fax.
Those revisions shall be transmitted for written approval to the
Street Fax Purchasing Department.

5.
Purchaser’s Property
Does not include the price of renting the server, and registering
VeriSign and SSL. The Buyer agrees to incur these expenses in
addition to the price of the contract, and will maintain control of
these services at all times.
Data, drawings, tooling, patterns, materials, specifications, and
any other items or information supplied to Seller under this order
are the property of the Purchaser and must be returned upon
completion of this order. Such items or information are to be
used solely in the performance of the work by the seller and shall
not be used or disclosed for any other purpose whatsoever
without Purchaser's prior express written consent.
6.
Settlement of Controversies
In the event that this purchase order is for materials or equipment
which will be incorporated in the Customer’s work under the
Prime Contract, and in the case of disputes between the
Purchaser and the Customer or between the Purchaser and the
Seller regarding materials or equipment to be furnished by the
seller, the Seller agrees to be bound to the same extent that the
Purchaser is bound by the terms of the Prime Contract, and by
any and all decisions and determinations made thereunder,
provided that the Seller shall have the right to participate in the
settlement of any dispute with the customer to the extent that the
Seller will be affected thereby.
No interest shall accrue on any payment(s) otherwise due the
Seller, which is withheld or delayed as a result of any such dispute,
except to the extent that the Purchaser is ultimately paid interest
on monies due the Seller. The Seller shall not be held liable if the
Seller follows instructions of the Purchase and it is later
determined that the Purchaser's instructions were not in
compliance with the terms and specifications of the Prime
Contract. Pending final disposition of a dispute hereunder, the
Seller shall carry on the work unless otherwise agreed in writing
by the Purchaser.
In all instances the final authority should rest with the final
Specifications.
7.
Patent Indemnity
Purchaser hold seller harmless for any infringement sellers work
may constitute on patents held by any third party that result from
the direct request for work made by purchaser in this “work made
for hire” agreement.
The Seller hereby agrees to be responsible for all claims against
the Purchaser of the Customer for alleged infringement of patents
by reason of the Purchaser's or Customer's possession, use, or
sale of any materials or equipment furnished hereunder by the
Seller or by reason of the performance of any work hereunder by
the Seller. The Seller agrees to defend at its sole expense all suits
against the Purchaser and/or the Customer and to save and hold
harmless the Purchaser and the Customer from and against all
costs, expensed, judgments, and damages of any kind which the
Purchaser or the Customer may be obliged to pay or incur by
reason of any such alleged or actual infringement of a patent or
patents. The Purchaser and the Customer agree to render
whatever assistance it reasonably can in the way of information
and access to records for the defense of any such suit. This
indemnity shall not extend to alleged or actual infringements
resulting from the Seller's compliance with the Purchaser's or
Customer's design, instructions, processes, or formulas provided,
however, that the Seller agrees to be responsible if it is reasonable
to assume that the Seller should have been aware of a possible
alleged or actual infringement resulting from the Purchaser's or

Case 1:10-cv-00569-RJA -LGF Document 331

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[TRANSCRIPTION OF .TIF DOCUMENT BY GIBSON DUNN PERSONNEL]
Customer's design, instructions, processes, or formulas and fails
to notify the Purchasers of such possibility.
8.
Assignment of Subcontracting
Neither this order nor any rights, obligations, or monies due
hereunder are assignable or transferable (as security for advances
or otherwise) without the Purchaser's prior written consent, and
except as to purchases of raw materials or standard commercial
articles or parts, the Seller shall not subcontract any major portion
of the work encompassed by this order without the Purchaser's
prior written approval. The Purchaser shall not be required to
recognize any assignment or subcontract made without its prior
written consent.
The buyer accepts that there will be two other subcontractors
working on this project their work will be accepted provided a
noncompete and "work made for hire agreement" are in place.
9.
Proprietary Rights
It is acknowledged that this is a work made for hire agreement
and that all intellectual property rights or patent rights are that of
StreetFax Inc. All code in portion or in its complete form remains
the property of StreetFax Inc. If the items to be supplied
hereunder have been designed in accordance with specifications
or data furnished or originated by the Purchaser or its Customer,
such items shall not be reproduced except with the approval of
the Purchaser and, as applicable, its Customer and all drawings,
photographs, data, software, and other written material or
information supplied in connection therewith shall at all times
remain the property of the Purchaser or its Customer and be
returned promptly upon request at the completion, termination or
cancellation of this order. In the event that StreetFax defaults on
it payment terms rights would be granted to seller.
10.

Termination
A. DEFAULT - The Purchaser may terminate this order
or any part thereof by written notice if the Seller:
a) fails to make deliveries or to complete performance
of its obligations hereunder within the time
specified or in accordance with the agreed
schedules unless such failure is due to acts of God,
strike or other causes which are beyond the control
of the Seller.
b) Fails to comply with the terms and conditions of
the purchase order and does not cure such failure
within a period of ten (10) calendar days after
written notice thereof.
c) Makes an assignment for the benefit of creditors
without prior written consent of the Purchaser,
becomes insolvent or subject to proceedings under
any law relating to bankruptcy, insolvency, or the
relief of debtors.
Should the Purchaser elect to terminate for default, the Purchaser
may take possession of all or any of the items to be supplied
hereunder which are in the Seller's possession without regard to
stage of completion and may complete or cause the work to e
completed on such items or may manufacture of procure similar
items. Any additional costs or expense incurred by the Purchaser
over and above the original purchase price from the Seller plus
freight costs shall be for the account of the Seller.
In all events, the Purchaser shall not be or become liable to the
Seller or any third party claiming through or under the Seller for
any portion of the price of any items that Purchaser elects not to
accept following notice of termination for default.
11. Liens
The Seller agrees to deliver the items to be supplied hereunder
free and clear of all liens, encumbrances, and claims of laborers or
material men and the Purchaser may withhold payment pending
receipt of evidence in form and substance satisfactory to it of the
absence of such items, claims and encumbrances.

12. Governing Law
This Purchase Order and any material relating thereto shall be
governed by the laws of the state in which the Purchaser's office
that issues the order is located.
13. Recovery of Damages
If the Seller should recover any damages as a result of antitrust
violations in any manner due to price fixing on the part of
another manufacturer or Seller, the Seller shall pay over to the
Purchaser any ages Purchaser has suffered as a result of the same
price fixing within a reasonable time after the damages are
recovered by the Seller.
14.

Notice of Labor Disputes
a) Whenever the Seller has knowledge that any actual or
potential labor dispute is delaying or threatens to delay
the timely performance of this order, the Seller shall
immediately give notice thereof, including all relevant
information with respect thereto, to the Purchaser.
b) The Seller shall insert the substance of this clause
including this paragraph (b) in any subtier supply
agreement hereunder as to which a labor dispute may
delay the timely performance of this order except that
each such subtier supply agreement shall provide that
in the event its timely performance is delayed or
threatened by delay by an actual or potential labor
dispute, the subtier Seller shall immediately notify its
next higher tier Seller or Sellers, as the case may be, of
all relevant information with respect to such dispute.

15. Indemnity Requirements for Contractors/Seller
Contractor/Vendor shall defend, indemnify and save Street Fax
from any and all claims, suits, losses, damages, or expenses,
whether caused or contributed to by the negligence of Street Fax,
its agents, or employees, or otherwise, on account of injuries to or
death of any and all persons whomsoever, including the
Contractor/Vendor, subcontractors, employees of
Contractor/Vendor, the subcontractor, and of Street Fax and any
and all damage to property to whomsoever belonging, including
property owned by, rented to, or in the care, custody, or control
of the parties hereto arising or growing out of, or in any manner
connected with the work performed under this contract, or
caused or occasioned, in whole or in party by reason of or arising
during the presence of the person or of the property of
Contractor/Vendor, subcontractors, their employees, or agents
upon or in proximity to the property of Street Fax
Notwithstanding the foregoing, nothing herein contained is to be
construed as an indemnification against the sole negligence of
Street Fax.
16. Publicity
Seller shall not publish photographs or articles, give press releases
or make speeches about or otherwise publicize the existence or
scope of this Purchase Order, or any generalities or details about
this Purchase Order without first obtaining the written consent of
Buyer.
17. Seller’s Disclosure
Any information relating to the Seller's designs, manufacturing
processes or manufactured products which the Seller may disclose
to the Buyer in connection with the performance of the contract
may be used by the Buyer for any purpose relating to the contract
and to its performance without liability therefor to the Seller.
18. General Notes
Seller shall reference this purchase order number on all
documents and/or correspondence related to this order.
The signatures below will execute this contract.