EXHIBIT 10.5
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SALES AND SERVICE AGREEMENT
This Sales and Service Agreement (this "Agreement") is made this 28th
day of March 2002, (the "Effective Date) by and between EssTec Inc. (the
"Consultant") and First Step (the "Customer").
A G R E E M E N T:
1. SERVICES TO BE RENDERED. The Consultant will perform development of
Corporate Identity and Brand via Web Site development, Logo and Stationary
Development. This will include turnkey services incorporating all costs of
proofs and reprints. All services provided by the Consultant to the Customer are
defined as the "Services," any and all resulting work product is the "Product,".
Estimate time for the development of Product is 6 Weeks from the date hereof.
2. PAYMENT OF FEES. In consideration of the Services, the Customer
shall pay Consultant forty thousand dollars ($ 40,000), payable on the signing
of this contract.
3. OWNERSHIP OF WORK. The ownership of original source codes, design
templates, workflow charts, artwork, including sketches and any other materials
created in the process of creating the product, shall remain with The
Consultant.
4. INDEMNIFICATION.
(a) INDEMNIFICATION BY CUSTOMER. The Customer agrees to
indemnify, defend and hold the Consultant, it's owners and its agents, officers,
directors, lawyers, accountants, and employees, harmless from and against any
and all losses, claims, demands, damages, liabilities, costs and expenses,
including but not limited to reasonable attorneys' fees and the costs of any
legal action arising from Customer's web site(s) or Customer's use of the
Services. Such indemnification shall include, but not be limited to, claims for
libel, slander, infringement of copyright, theft of misappropriation of
intellectual property, or unauthorized use of any trademark, trade name, or
service xxxx.
(b) INDEMNIFICATION BY CONSULTANT. Except as otherwise herein
provided, the Consultant agrees to indemnify, defend and hold the Customer and
its agents, officers, directors, lawyers, and accountants harmless from and
against any and all losses, claims, demands, damages, liabilities, costs and
expenses, including but not limited to, reasonable attorneys' fees and costs of
any legal action (but excluding consequential damages) arising from the
Consultant's gross negligence in the course of providing the Services under this
agreement. In no event will the Consultant be liable for lost or damaged data,
loss of business, or anticipatory profits, or any other consequential or
incidental damages resulting from the use or operation of the Services or the
maintenance thereof.
5. LIMITATION OF DAMAGES. The Consultant will endeavor to provide high
quality Services and a high quality Product. However, the Consultant is not, and
will not be responsible for any consequential or incidental damages resulting
from any malfunctioning of Customer's web site resulting form Consultant's
Services, including, but not limited to, any interruptions of service, or data
loss (including lost transactions) regardless of whether such damages arose from
Consultant's negligence. Although the Consultant will endeavor to safeguard any
data provided by the Customer, the Customer agrees that it is responsible for
safeguarding its data, including maintaining backup data sets.
6. TERMINATION OF AGREEMENT.
(a) MATERIAL BREACH. If either party is in material breach
this Agreement, the non-breaching party may serve the breaching party with a
written notice specifying the material breach and requesting the breaching party
to cure it. If the breaching party fails to cure the material breach within ten
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(10) days after its receipt of the notice, the non-breaching party may terminate
this Agreement by sending a written notice of termination to the breaching
party. The termination of this Agreement shall take effect immediately on the
receipt of such notice of termination by the breaching party.
(b) TERMINATION ABSENT A BREACH. Neither party shall have the
ability to unilaterally terminate the Agreement, except as specifically
permitted by provisions of this Agreement. A party specifically granted the
ability to terminate this Agreement for any reason not covered by subsection (a)
of this Paragraph, may exercise this right by sending the other party a written
notice stating that it is terminating the Agreement and citing the specific
paragraph and subparagraph providing the party with the ability to terminate the
Agreement. The termination of this agreement shall take effect thirty (30) days
following the other party's receipt of this notice. This sub-paragraph shall not
apply to any termination arising from a material breach.
(c) EFFECT OF TERMINATION. On any termination of this
Agreement pursuant to this paragraph, the Consultant may immediately cease
providing Services to the Customer, and neither party shall have any further
obligation to the other under the Agreement, provided that neither party shall
be relieved from any obligations or liabilities arising under the Agreement
prior to its termination.
7. WARRANTIES; LIMITATIONS ON LIABILITY. THE CONSULTANT MAKES NO
WARRANTY, REPRESENTATION, OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN THE SERVICES ARE PROVIDED "AS
IS." THE CONSULTANT DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE AND FITNESS OF THE SERVICES FOR A PARTICULAR PURPOSE. THE
CONSULTANT DOES NOT WARRANT THAT THE SERVICES OR RELATED MATERIALS WILL SATISFY
CUSTOMER'S REQUIREMENTS OR THAT THE SERVICES AND RELATED SERVICES WILL BE
WITHOUT DEFECT OR ERROR.
8. ENTIRE AGREEMENT. This Agreement supersedes all previous agreements
between the parties, contains the entire understanding between the parties, and
may not be changed, except in writing, duly executed by each of the parties.
9. INDEPENDENT CONTRACTOR. The Consultant is an independent contractor
relative to the Customer and nothing contained herein shall be deemed to create
a partnership or agency relationship.
10. ASSIGNMENT. This agreement may not be assigned without the express
written consent of the non-assigning party.
11. NOTICES. All notices required by this Agreement shall be in writing
and sent by Facsimile, Electronic Mail, Federal Express, or U.S. Mail, Return
Receipt Requested as provided below. Such notice shall be sufficient for the
purposes of this Agreement only if sent to the party's "Address for Service" as
listed below. Such Address for Service may be changed by any party by serving
notice (in compliance with the paragraph) on the other party. No notice sent by
facsimile shall be sufficient without a confirmation receipt. No notice sent by
electronic mail shall be sufficient unless sent to an address included in the
recipient's Address for Service and acknowledged by a human-generated response.
Consultant's Address for Service:
Address: 0000 X. Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
E-mail: xxxxxx@xxxxxx.xxx
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Customer's Address for Service:
Address: 00000 Xxxxxx Xx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
E-mail: xxxxxx.xxxxxxx@xxxxxxxxxxxxxxx.xxx
12. DISPUTE RESOLUTION. If a dispute or claim shall arise with respect
to any of the terms or provisions of this Agreement, then either party may, by
notice as herein provided, require that the dispute be submitted under the
Commercial Arbitration Rules of the American Arbitration Association to an
arbitrator in good standing with the American Arbitration Association within
fifteen (15) days after such notice is given. Any such arbitrator so selected is
to be mutually acceptable to both parties. If both parties are unable to agree
upon a single arbitrator, each party shall appoint one (1) arbitrator. If either
party does not appoint an arbitrator within five (5) days after the other party
has given notice of the name of its arbitrator, the single arbitrator appointed
by the party giving notice shall be the sole arbitrator and such arbitrator's
decision shall be binding upon both parties. If two (2) arbitrators are
appointed, these two (2) arbitrators shall appoint a third arbitrator who shall
proceed to resolve the question. The written decision of the single arbitrator
ultimately appointed by or for both parties shall be binding and conclusive on
the parties. Judgment may be entered on such written decision by the single
arbitrator in any court having jurisdiction and the parties consent to the
jurisdiction of Orange County, California for this purpose. Any arbitration
undertaken pursuant to the terms of this section shall occur in Orange County,
California.
13. ATTORNEYS' FEES. In the event of any legal, equitable or
administrative action or proceeding brought by any party against another party
under this Agreement, the prevailing party shall be entitled to recover the
reasonable fees of its attorneys and any costs incurred in such action or
proceeding including costs of appeal, if any, in such amount that the court or
administrative body having jurisdiction over such action may award.
14. GOVERNING LAW. This Agreement will be construed and enforced in
accordance with, and governed by, the laws of the State of California in the
United States of America without giving effect to any conflict of laws
principles. The parties hereby consent to the personal jurisdiction of the
courts of the County of Orange, California, and waive any rights to change
venue.
15. CURRENCY DENOMINATIONS. All currency denominations are in United
States dollars.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
The Consultant
/s/ Xxxxx X. Xxxxxx
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By: Xxxxx X Xxxxxx
Its: VP Operations
The Customer
/s/ Xxxxxx Xxxxxxx
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By: Xxxxxx Xxxxxxx
Its: CEO
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