FIRST AMENDMENT TO SOFTWARE DEVELOPMENT AND CONSULTING AGREEMENT
Exhibit
10.4
FIRST
AMENDMENT TO
This
First Amendment to Software Development and Consulting Agreement is made and
entered into on February 24, 2009 (the “Effective
Date”), between SUMOTEXT, Inc., (formerly Reminderbox, Inc.) (“SUMOTEXT”)
and DataMethodology, LLC (“Consultant”
and the “Agreement”),
each individually a “Party”
and collectively the “Parties.”
W I T N E S S E T H:
WHEREAS, the Parties
previously entered into a Software Development and Consulting Agreement on or
around January 1, 2007 (the “Original Agreement);
WHEREAS, the Original
Agreement had some misstatements and language which was confusing to the
Parties;
WHEREAS, the Parties desire to
amend the language of the Original Agreement as provided below; and
NOW, THEREFORE, in
consideration for the promises and pledges contained below and other good and
valuable consideration, which consideration the Parties acknowledge receipt of,
and the premises and the mutual covenants, agreements, and considerations herein
contained, the Parties hereto agree as follows:
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1.
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Amendment to Original
Agreement.
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a)
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Subject
to satisfaction of the condition precedent set forth below in Section 4,
the following Section 6 of the Original Agreement is hereby amended in its
entirety to provide as follows:
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“6. Transfer
of Ownership.
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(a) ▇▇▇▇
▇▇▇▇▇ hereby assigns to Client the copyrights to any code, application, module,
or design developed for Client under this agreement.
(b) ▇▇▇▇
▇▇▇▇▇ hereby additionally grants to Client ownership of all product's source
code.”
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2.
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Consideration.
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Each
Party confirms and acknowledges by signing below that they are receiving valid
consideration as a result of the terms and conditions of this
Agreement.
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3.
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Effect of
Agreement.
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Upon
the effectiveness of this Agreement, each reference in the Original
Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of
like import shall mean and be a reference to such documents, as
applicable, as amended hereby. Other than the Sections of the
Original Agreement modified herein, the Original Agreement shall remain in
full force and effect.
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4.
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Conditions
of Effectiveness.
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This
Amendment shall become effective upon execution by each of the Parties
hereto.
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5.
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Miscellaneous.
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a)
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Assignment. All
of the terms, provisions and conditions of this Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the Parties
hereto and their respective successors and permitted
assigns.
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b)
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Applicable
Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Arkansas, excluding any
provision of this Agreement which would require the use of the laws of any
other jurisdiction.
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c)
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Entire Agreement,
Amendments and Waivers. This Agreement constitutes the
entire agreement of the Parties hereto and expressly supersedes all prior
and contemporaneous understandings and commitments, whether written or
oral, with respect to the subject matter hereof. No variations,
modifications, changes or extensions of this Agreement or any other terms
hereof shall be binding upon any Party hereto unless set forth in a
document duly executed by such Party or an authorized agent or such
Party.
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d)
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Waiver. No
failure on the part of any Party to enforce any provisions of this
Agreement will act as a waiver of the right to enforce that
provision.
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e)
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Section
Headings. Section headings are for convenience only and shall not
define or limit the provisions of this
Agreement.
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f)
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Construction. The
Parties acknowledge that each of them has had the benefit of legal counsel
of its own choice and has been afforded an opportunity to review this
Agreement with its legal counsel and that this Agreement shall be
construed as if jointly drafted by the parties
hereto.
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g)
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Authority. Each
Party has all requisite power and authority, corporate or otherwise, to
enter into and affect the transactions contemplated by this
Agreement.
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h)
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Effect of Facsimile
and Photocopied Signatures. This Agreement may be executed in
several counterparts, each of which is an original. It shall
not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other
counterparts. This Agreement may be executed by facsimile
transmission or by e-mail transmission in PDF. A photocopy or
PDF of this Agreement shall be effective for all
purposes.
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This
Agreement has been executed by the Parties on the date first written above, with
an Effective Date as provided above.
DataMethodology,
LLC
/s/
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
President
/s/
▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇
President
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