Exhibit 10.13
SOFTWARE DEVELOPMENT
AND LICENSE AGREEMENT
This Software Development and License Agreement (the "Agreement") made and
entered into effective this 27th day of January, 2003 and between PocketSpec
Technologies Inc., a Colorado Corporation, hereafter referred to as
("PocketSpec"), Xxxxxx Xxxxxx, dba Tyger POS ("Xxxxxx"), whose address is 0000
Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 and Advanced Restaurant Technologies,
LLC ("ART") whose address is PO. Xxx 000, Xxxxxxxxx, Xxxxxxxx 00000. ART and
Xxxxxx shall , hereafter collectively be referred to as ("Software Provider").
RECITALS
WHEREAS, PocketSpec owns, produces and sells products known as the
ColorQATM, ColorCheckTm and BronzCheckTm, products (the "PocketSpec Products").
Technologies owned and used by PocketSpec are incorporated in all of these
products.
WHEREAS, PocketSpec desires to further exploit the Salon Industry, which
for purposes of this Agreement shall be defined as any business that provides
beauty enhancing services, whether separately established and/or in any
combination of the others. The Salon Industry does not extend to retail only
businesses (i.e. businesses that do not provide services.) The software
development is specific to the BronzCheckTm, however, the software being
developed may be exploited and used for all of the three PocketSpec Products,
WHEREAS, Software Provider has multiple existing software code routines,
and layouts used in the restaurant and other industries, and the existing
systems are compatible to integration into the systems PocketSpec requires to be
developed.
WHEREAS, Software Provider has agreed to produce a software system, as more
fully described herein, to be used by PocketSpec in the Salon Industry with the
PocketSpec Products which shall include integration of peripherals as required
by PocketSpec, hereafter referred to as (the "Software System").
WHEREAS, PocketSpec believes it can more effectively deliver the Software
System by contracting with Software Provider and the Software Provider agrees
that they are well suited to deliver the Software System required by PocketSpec.
WHEREAS, the parties have decided to set down in writing the mutual
understandings in this Agreement.
AGREEMENT
NOW, THEREFORE, for the mutual covenants and agreements set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. PocketSpec and Software Provider agree that the work to be performed by
Software Provider and final work product (the Software System) is referred
to as (the "Engagement") is detailed completely in the attached Exhibit
"A", but briefly described as the following phased work, which shall be
completed by June 1, 2003, or as near to that date as possible
Phase One - Initial layout of screens, design, buttons and overall design
including identification of software and hardware that will be required to
complete the Software System. The software and hardware to be provided by
PocketSpec are detailed in the attached Exhibit "A".
Phase Two - Implementation of a workable module that incorporates the
following: a) USB readings (up to 10) of the TanTone numbers displayed and
averaged (throw out 5% variances) for inclusion into a Graphic display; b)
Account set up screen that reflects the approximate information in the demo
of Sun Touch; c) Series; of tanning beds listed with appropriate
recommended tanning exposure times for each customer (based on mathematics
provided by PocketSpec), d) input screen to place bed measurements and date
of measurement which information will be used in the mathematics; e)
Alternate to USB will be to manually place TanTone numbers into a schedule,
with up to 10 measurements; f) conversion of data process to take data from
Sun Touch to install into the Software System; g) scheduling module
(acquired for money by PocketSpec to save time). Note: The a) through g)
items are to be included in point of sale system, and also as a plug in
module to Sun Touch and Helios (PocketSpec will provide systems).
Phase Three - Integration of Intuit, Quick Books Pro, links to bed timing
system (T-Max); and creation of remote sensor UV exposure level automated
with components installed in beds for testing (expense of PocketSpec);
links to thumb print reader (working), bar code reader (working), cash
drawer (working), credit card system, final graphics installed and system
deployed for beta testing in Toronto; conversion of data tools provided
that converts data from Sun Touch and Helios systems (both Access), plus
the prior system of Helios for period prior to Access (all of which will be
provided by PocketSpec.
Phase Four - Internet system incorporating on-line scheduling; emails;
individual salon web site; apache server system(s) installed at Reseller
facilities or otherwise arranged and manual reviewed approved as well as
on-line demonstrations;
Software Provider and PocketSpec shall agree, in advance, on additional
compensation payable to Software Provider in the event any additional
objectives develop during the completion of the objectives outlined in
Exhibit A. Furthermore, such additional objectives shall not delay or
affect the timing of payments outlined herein for the original objectives
outlined in Exhibit A.
Software Provider makes no representation that the Software Systems has any
health benefits. PocketSpec shall indemnify and hold Software Provider
harmless from any and all claims relating to the use of the Software
System.
Bug fixes that pertain to the original task list shall be free for the
first 50 units of the Software System. Any changes beyond that time period
will be billed at an agreed upon rate.
2. Term of Engagement: The terms of this Agreement relating to development of
software shall expire sixty (60) days after project completion as defined
in Exhibit A, or on June 1, 2003, whichever is the later date. Those terms
relating to the license of the Software System shall continue as outlined
in the license provisions herein.
3. PocketSpec's obligations. PocketSpec to supply Software Provider with
development and test equipment. Software Developer will need certain
devices and software to complete the Engagement. Such equipment and
software may include, but is not limited to: Intuit - Quick Books Pro
Developer software, a PocketSpec Device, a PocketSpec Device with USB
interface, a TMax device, Credit Card Integration software, Scheduling
Graphical Interface Software, 2003 MSDN Software, Encryption software, and
a copy of the data tables with data for each product conversion. PocketSpec
shall provide Software Provider with all of the above mentioned equipment.
The above mentioned software shall be provided in a timely manner and at
PocketSpec's expense, but not to exceed $6,000 (six thousand dollars).
PocketSpec shall be credited for the amount expended for tools that the
Software Provider may keep, against the last payment of to the final
reimbursed for the development software from the payment of the $75,000
referred to in section 5.1.1
4. Ownership Upon full and complete payment of the $50,000 initial payment and
subject to the terms and conditions contained herein, Software Provider
hereby grants PocketSpec full and complete ownership of the Software
System,
including source code and ownership versions of any developer software that
is resold as "run-time" licenses. As owner of the Software System,
PocketSpec may resell, exhibit, exploit, market, edit, sell, and to
distribute the Software System in any way PocketSpec deems appropriate,
provided however, the Software Provider has a copy of all or part of the
source code and other component parts. The Software Provider is free to
reuse the said source code, except in the following business areas: Hair
salons, xxxxxx shops, beauty shops, dental offices that utilize cosmetic
dentistry, hotels for which spa, salon or health facilities or services are
offered at additional cost, spas, health clubs, clinics and medical
facilities that offer rejuvenation services, tanning salons , drug rehab
facilities, and any other businesses which charge for personal health or
beauty services.
4.1. For the purposes of this contract, the Martial Arts studio market is
assigned to the Developer.
4.2. All copies of the Software System shall contain an appropriate
copyright notice that states the name of the developer.
5. Payment for the Engagement by PocketSpec to Software Developer as follows:
5.1. Total price for the Engagement is agreed to be $200,000, which price
is allocated as follows:
5.1.1. $50,000 of the price paid for development work, as follows:
$20,000 paid at inception of this Agreement, which payment is
being paid by issue of S-8 Stock and Software Developer accepts
this payment, and PocketSpec guarantees that,'/ of the stock will
be sold for at least $10,000 cash within 15 days frorn the date
hereof; and the remaining 1/2 sold for at least $10,000 within 25
days from the date hereof, if the stock is sold at a deficit,
PocketSpec and/or Xx. Xxxxxx shall immediately pay Software
Provider the deficit in cash, and 1/2 of any surplus credited
shall be applied to the next installments due. Processing or
brokerage fees in excess of 1.5% of the stock value shall be
considered an additional deficit reimbursable by PocketSpec to
Software Provider;
$10,000 on completion of Phase Two;
$10,000 on completion of Phase Three,
$10,000 on completion of Phase Four.
PocketSpec, at its option may issue S-8 free trading stock for
any of the Phase Two through Phase Four payments based on the
guaranty on the part of PocketSpec and/or Xx. Xxxxxx
that any shortfall will be made up in cash and the assurance on
the part of Software Developer that 1/z of any surplus realized
from the sale of the stock is credited to the next payment(s) or
installments to be paid under this Agreement.
5.2. $75,000 For the software technology previously developed by Software
Provider, PocketSpec shall pay to Software Provider a guaranteed
$75,000, without waiver or exception. This second payment of $75,000
shall be paid in full no later than one year from the date of this
Agreement. Each PocketSpec Product and each piece of hardware that
contains any portion of the Software System shall be considered one
module or one copy of the point of sale software and a royalty of
$1000 for each ten such items shall be due and payable to Software
Provider within 10 days of the end of each month's business,
regardless if PocketSpec charges its client for each such module or
copy. As to this $75,000 payment, and to the extent that Software
Provider is eligible to do so, the Software Provider, may exchange, at
its sole and absolute option, one-half of the 1St $50,000 or $25,000
for 312,500 (the value today at $0.08 per share) shares of common
stock in PocketSpec, restricted under SEC Rule 144, and then one half
of the next $25,000 or $12,500 for 156,250 shares of common stock in
PocketSpec, restricted under SEC Rule 144.
5.3. $75,000 Finally, as further royalty payments above and beyond the
initial payment of $50,000 and once the guaranteed royalty payment of
$75,000 has been met, and after 750 Units have been sold (not counting
10 systems than are determined to be demonstration units), PocketSpec
shall pay Software Provider an additional royalty, of $100 for every
Unit sold by PocketSpec up to a total of $75,000 in royalties. The
payment terms for the second royalty set shall be the same as set
forth above for the first $75,000 royalty payments. All parties
acknowledge that Payments to the Software Provider shall be made
payable to Xxxxxx Xxxxxx, dba Tyger POS. However, the parties further
acknowledge that the monies paid shall be split by Xxxxxx Xxxxxx as
follows: 75% interest to Xxxxxx Xxxxxx dba Tyger POS and 25% interest
to Advanced Restaurant Technologies, LLC
5.4. Right of Audit. Until $200,000.00 is paid to Software Provider as
stated in Section 5 hereinabove, PocketSpec shall permit Software
Provider, or representatives of Software Provider which are reasonably
acceptable to PocketSpec, at Software Provider's expense, to
periodically examine PocketSpec's books, ledgers, and records during
regular business hours for the sole purpose of, and only to the extent
necessary, to verify reports furnished to Software Provider pursuant
to Section 5.2 and 5.3; provided that Software Provider delivers to
PocketSpec a written notice of Software Provider's intention to
conduct an inspection not less than ten (10) business days before the
intended date of such inspection; and provided
5
further that only one (1) such inspection may be conducted during any
calendar six (6) month period. In the event that amounts due Software
Provider are determined to have been underpaid by an amount greater
than ten percent (10%) of the amount actually due, PocketSpec shall
pay the cost of such examination. Any royalty payment not paid on or
before the date corresponding to thirty (30) days after the end of the
calendar quarter for which such royalties are due and payable
hereunder shall accrue interest at a rate equal to one percent (1 %)
per calendar month or, if less, the maximum rate permitted under
applicable law. Notwithstanding the above, each report delivered by
PocketSpec to Software Provider pursuant to Section 11., shall be
deemed correct and accurate, and Software Provider shall have no right
to inspection records relating thereto, or otherwise challenge the
accuracy of either such report or the records relating thereto, after
the third anniversary of the date of delivery of such report to
Software Provider.
6. Additional Provisions:
6.1. Proprietary Information. The term "Proprietary Information" shall mean
any and all confidential and/or proprietary knowledge, data or
information of the PocketSpec or Software Provider. By way of
illustration but not limitation, "Proprietary Information" includes
(a) trade secrets, inventions, mask works, ideas, processes, formulas,
source and object codes, data, programs, other works of authorship,
know-how, improvements, discoveries, developments, designs and
techniques (hereinafter collectively referred to as "Inventions"); (b)
information regarding plans for research, development, new products,
marketing, and selling, business plans, budgets and unpublished
financial statements, licenses, prices and costs, suppliers and
customers; and (c) information regarding the skills and compensation
of other employees of either party. Notwithstanding the foregoing, it
is understood that, at all such times, either party is free to use
information which is generally known in the trade or industry, which
is not gained as a result of a breach of this Agreement, and their own
skill, knowledge, know-how and experience to whatever extent and in
whichever _ _way w r r and the Software Provider desires. This
provision shall expire three (3) years after the expiration of this
Agreement
6.2. CODE AND SYSTEMS. The Software System shall be delivered to
PocketSpec, the owner of the Software System, after the $50,000.00 is
paid pursua,,)t to 5.1.1, timely with all source code and original
versions (registered to PocketSpec) of run-time licenses and with good
documentation so manuals can be easily developed PocketSpec shall be
responsible for maintaining the security of the Software System and
the code thereto. PocketSpec shall not distribute the source code to
any third party . PocketSpec may deliver the run-time version of the
program to
PocketSpec customers who agree in writing to be bound to retention of
the confidentiality of the system.
7. No CONFLICTING OBLIGATION. Software Provider represents that their
performance of all the terms of this Agreement does not and will not breach
any agreement to keep in confidence information acquired by Software
Provider in confidence or in trust prior to the Engagement by the
PocketSpec.
8. NO PARTNERSHIP OR EMPLOYER/EMPLOYEE RELATIONSHIP. Nothing in this
Agreement, either express or implied may be interpreted to create a
partnership or common interest between the PocketSpec and the Software
Provider, but rather the relationship between the PocketSpec and the
Software Provider is that of a contractor/software provider. In addition,
nothing in this Agreement shall impute any sort of employer/employee
arrangement between the PocketSpec and the Software Provider.
9. PUBLICATION; Software Provider authorizes the publication of its
association with PocketSpec and in turn, PocketSpec authorizes the
publication of its association with Software Provider, subject to all
Securities and Exchange Commission rules and regulations and those rules
and regulations of any exchange on which PocketSpec's shares are traded.
10. LEGAL AND EQUITABLE REMEDIES.
10.1. Both parties agree that the provisions of this Agreement are
reasonable and necessary protection for the immediate and substantial
interests of the PocketSpec and Software Provider, and that any
violation of these provisions would cause substantial and irreparable
injury to PocketSpec or Software Provider. Because services of
Software Provider are personal and unique and because Software
Provider and PocketSpec may have access to and become acquainted with
the Proprietary Information of each other, the parties shall have the
right to enforce this Agreement and any of its provisions by
injunction, specific performance or other equitable relief, without
bond and without prejudice to any other rights and remedies that
either party may have for a breach of this Agreement.
11. NOTICES. Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified below or at such other address
as the party shall specify in writing. Such notice shall be deemed given
upon personal delivery to the appropriate address or if sent by Federal
Express, certified mail, or facsimile two (2) days after the date of
mailing.
12. GENERAL PROVISIONS.
12.1.1. Governing Law; Consent to Personal Jurisdiction. This
Agreement will be governed by and construed according to the laws
of the State of Colorado. Both Parties hereby expressly consent
to the personal jurisdiction of and venue in the state and
federal courts located in the City and County of Denver,,
Colorado, for any lawsuit filed arising from or related to this
Agreement.
12.1.2. Severability. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect the
other provisions of this Agreement, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision
had never been contained herein. If, moreover, any one or more of
the provisions contained in this Agreement shall for any reason
be held to be excessively broad as to duration, geographical
scope, activity or subject, it shall be construed by limiting and
reducing it, so as to be enforceable to the extent compatible
with the applicable law.
12.1.3. Successors and Assigns. This Agreement will be binding upon
the successors, heirs, executors, administrators and other legal
representatives or the respective parties herein.
12.1.4. Survival. The provisions of this Agreement shall survive the
termination of Engagement and the assignment of this Agreement by
the PocketSpec to any successor in interest or other assignee.
12.1.5. Waiver. No waiver by either party of any breach of this
Agreement shall be a waiver of any preceding or succeeding
breach. No waiver by any party of any right under this Agreement
shall be construed as a waiver of any other right. Neither party
shall be required to give notice to enforce strict adherence to
all terms of this Agreement.
12.1.6. Entire Agreement. This document, and the attached Exhibit A,
contain the entire understanding between the parties. This
Agreement is the final, complete and exclusive agreement of the
parties with respect to the subject matter hereof and supersedes
and merges all prior discussions between the parties. No
modification of or amendment to this Agreement, nor any waiver of
any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged.
12.1.7. Benefit of Counsel. Each party to this Agreement has had the
benefit of legal counsel and representation prior to executing
this Agreement.
12.1.8. Facsimile binding. It is agreed that a facsimile signature on
this Agreement shall be considered binding.
THE PARTIES HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS.
Software Provider:
/s/ Xxxxxx Xxxxxx
-----------------------------
Xxxxxx Xxxxxx dba Ty r P S
Advanced Restaurant Technologies, LLC
POCKETSPEC:
POCKETSPEC TECHNOLOGIES INC.
F. Xxxxxxx Xxxxxx
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F. Xxxxxxx Xxxxxx, President