[Exhibit 10.3]
Software Development & Consulting Agreement
THIS AGREEMENT ("Agreement") is made on the 23rd day of
October, 2003, by and between UniPro Financial Services,
Inc., ("UniPro") and MCM Systems Corporation ("MCM") both
parties being Florida corporations and maintain their
corporate offices in the State of Florida.
The parties agree that MCM is acknowledged to be the owner
and primary software developer for the eBroker system (the
"Product") and its future enhancements.
1.0 Product. MCM developed the Product, and by a separate
contemporaneous agreement (the Exclusive Marketing Agreement)
has granted to UniPro the worldwide exclusive rights to
market the completed Product; which shall not be substituted,
modified, or otherwise changed from the specifications in
existence at the time said transaction is Closed, without
prior consultation with UniPro.
2.0 Term. This Agreement shall be in effect commencing on the
Closing date of the Exclusive Marketing Agreement, and shall
remain in effect for the duration (including automatic
renewal terms) of that Exclusive Marketing Agreement. This
Agreement may also be terminated earlier pursuant to the
provisions hereof notwithstanding any provisions to the
contrary.
3.0 Software Development & Consulting.
3.1 All software development ("Product Enhancements") to be
performed for the benefit of the Product by MCM shall be
subject to acceptance by UniPro.
3.2 No such enhancements shall be installed into the
Product's programming until approved in writing by UniPro.
3.3. All enhancements of the Product developed by MCM shall
be deemed part of the Product.
3.4 MCM agrees to provide its development services and give
UniPro such assistance as may be required regarding the sales
and marketing of the Product.
3.5 MCM agrees to give priority to its performance
pursuant to this agreement.
4.0 Compensation. The parties acknowledge that UniPro has
paid the sum of Twenty-Five Hundred ($2,500) dollars in
partial consideration for this Agreement. Additionally,
effective on the Closing Date of the contemporaneous
Exclusive Marketing Agreement, the parties shall participate
on an equal basis in the net revenues generated by future
sales of the Product. MCM assumes full responsibility for the
costs of all future Product Enhancements.
5.0 Payment. UniPro shall pay to MCM its share of the net
revenues on a monthly basis, unless otherwise agreed to in
writing by the parties. Each Invoice is payable within twenty
(20) days from the date of receipt.
6.0 Exclusivity. MCM agrees that the Product Enhancements it
develops will be for and shall be exclusively provided to
UniPro; and that MCM shall not supply, distribute or sell the
Product or any of its future Enhancements to any third
parties.
7.0 Quality Control. MCM assures that it will provide strict
quality control over its development of Product Enhancements.
MCM further agrees to require all of its production personnel
to be properly trained and qualified to produce the Product
Enhancements.
8.0 Representation and Warranties of MCM. MCM represents and
warrants, which warranties and representations will survive
the term of this Agreement:
8.1 that the Product will conform to all
specifications, and will be merchantable, free from defects
and will be fit for the purpose intended;
8.2 that the Product has been developed and is to
be delivered in full compliance with all applicable federal
(US), state and local statutes, rules and regulations (the
"Regulations");
8.3 that MCM has or will maintain sufficient
facilities and capacity to develop Product Enhancements in
accordance with this Agreement.
[Exhibit 10.3 - Pg. 1]
8.4 that MCM is authorized to enter into this
Agreement, that MCM's execution of this Agreement has been
duly approved by all applicable procedures, that this
Agreement constitutes a legal, valid and binding obligation
of MCM, and that to MCM's knowledge this Agreement will not
violate the rights of any third party.
The aforesaid warranties shall be in additional to all other
warranties, express, implied or statutory and in addition to
all obligations contained in this Agreement. Payment for
inspection of, or receipt of the Product by UniPro shall not
constitute a waiver of any breach or warranty.
9.0 Representations and Warranties of UniPro. UniPro
represents and warrants, which warranties and representations
will survive the term of this Agreement:
9.1 that UniPro has, or will have the right to use the
various trade name, trademarks and logos (the "Marks")
pursuant to any required third party license agreements, for
the manufacture of the Product throughout the Initial Term of
this Agreement and any Renewal Term hereof;
9.2 that UniPro is free to enter into this Agreement,
that UniPro's execution of this Agreement has been duly
approved by all applicable corporate procedures, that this
Agreement constitutes a legal, valid and binding obligation
of UniPro, and that to UniPro's knowledge this Agreement will
not violate the rights of any third party. These warranties
shall be in addition to all other warranties, express,
implied or statutory and in addition to all obligations
contained in this Agreement.
9.3 that UniPro shall use its best efforts to market
and promote the Product, including as necessary raising third
party financing to fund such efforts.
10.0 Default and Termination.
10.1 In the event that either party:
(a) breaches any term or condition of this Agreement;
or
(b) abuses or misrepresents its status regarding the
Product Enhancements to the detriment of the other party, or
(c) becomes the subject of a ny proceeding under the
Bankruptcy Act, becomes insolvent or any assignment is made
for the benefit of creditors or a trustee is appointed for
all or any portion of the party's assets, or
10.2 The failure to terminate the Agreement upon the
occurrence of one or more of these events of default by a
party shall not constitute a waiver or otherwise affect the
right of the non-breaching party to terminate the Agreement
as a result of a continuing or subsequent failure or refusal
by the breaching party to comply with any such obligations.
Failure by the non-breaching party to exercise any of its
rights or remedies hereunder or to insist on strict
compliance with any of the terms of this Agreement shall not
constitute a waiver of any of the terms or conditions of this
Agreement with respect to any other subsequent breach nor
shall it constitute a waiver by the non-breaching party of
its rights at any time thereafter to require strict
compliance with the terms of this Agreement.
10.3 Upon termination, the parties shall make any
outstanding payments which may be due to each of the other.
11.0 Indemnity.
11.1 Both parties agree to indemnify and hold harmless the
other party and, its officers, directors, employees and
agents, and other users of the Product harmless from all
claims, demands, losses, liability, suits at law or in
equity, costs and expenses, including reasonable attorney's
fees, resulting from injury, illness and/or death caused, in
whole or in part, by contact with, use and/or consumption of
the Product, unless (and then only to the extent) such
injury, illness and/or death is caused by the sole negligence
or misconduct. In the event of any claim, threatened claim,
or notification of either which may be the subject of
indemnification provided for in this Section, prompt written
notices thereof shall be provided to the other party.
[Exhibit 10.3 - Pg. 2]
11.2 The provisions of this Section 11 and the indemnity
hereunder, shall survive this Agreement and any performance
hereunder.
12.0 Confidentiality. All terms and conditions of this
Agreement shall remain confidential between MCM and UniPro.
Each party acknowledges that during the course of carrying
out this Agreement, it may receive confidential and
proprietary information related to the other party's
business, created or provided by the other party
("Confidential Information"). Confidential Information
includes any information, designs, data or know-how that a
party has designated as proprietary and/or confidential, or
that, by the nature of the circumstances surrounding the
disclosure, ought to be treated as exclusive property of the
other party and undertakes to retain in confidence all
Confidential Information. Each party's obligations under
this Section 12 shall survive expiration and termination of
the Agreement and any amendments thereto.
13.0 Miscellaneous Provisions.
13.1 Independent Contractor Relationship. MCM and UniPro
are independent contracting parties and this Agreement does
not create a relationship of principal and agent, partners,
joint ventures or employer and employee between UniPro and
MCM. MCM shall have no authority to bind or otherwise
obligate UniPro in any manner nor shall MCM represent to
anyone that it has a right to do so.
13.2 Severability. The provisions of the Agreement are
severable and the Agreement shall be interpreted and enforced
as if all completely invalid or unenforceable provisions were
not contained in the Agreement, and partially valid and
enforceable provisions shall be enforced to the extent that
they are valid and enforceable.
14.0 Entire Agreement. The Agreement constitutes the entire
written Service & Consulting Agreement between the parties
and supersedes any and all prior negotiations, understandings
and/or agreements, oral or written, between the parties to
this Agreement with respect to the subject matter of this
Agreement. The parties agree that neither party is relying on
any statement or promise not contained in this Agreement.
15.0 Amendments in Writing. Neither the Agreement nor any of
its provisions may be waived, modified or amended except by
an instrument in writing signed by the parties to this
Agreement.
16.0 Assignment. The Agreement shall be binding upon and
shall inure to the benefit of the parties to this Agreement,
provided, however, it shall not be assigned by either UniPro
or MCM, without the prior written consent of the other party.
17.0 Applicable Law. The parties agree that all terms,
conditions and provisions of this Agreement shall be governed
by and construed in accordance with the laws of the State of
Florida.
18.0 No Delegation of Authority. MCM shall not subcontract or
otherwise permit third parties to produce the Product
Enhancements or to perform its obligations under this
Agreement, without the prior written consent of UniPro.
19.0 Cumulative Remedies. The rights and remedies above
provided to either party shall be cumulative in addition to
all other rights and remedies available to either party in
law and in equity.
20.0 Notices. Whenever a provision is made under this
Agreement for any demand, notice or declaration of any kind,
or where it is deemed desirable or necessary by either party
to give or serve any such notice, demand or declaration to
the other party, it shall be in writing and served either
personally or sent by United States mail, certified, postage
prepaid, addressed to the address as either party may advise
the other from time to time. It shall be deemed delivered
upon receipt.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
UniPro Financial Services, Inc. MCM Systems Corporation
By: __/s/ Xxxxxx Judkowitz______ By:___/s/ Xxxxxx Hale_______
Xxxxxx Xxxxxxxxx, President Xxxxxx X. Xxxx, President
[Exhibit 10.3 - Pg. 3]
