SOFTWARE DEVELOPMENT AND CONSULTING AGREEMENT
This
Software Development and Consulting Agreement (the "Agreement"), is effective
this day of
July
19, 2005 by and between New Motion Inc., with its principal office 00 Xxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxx, XX 00000
(hereinafter the "Client"), and e4site, Inc. d/b/a Visionaire, a California
corporation, with its principal office at 0000
Xxxxxxxx Xxxxx, Xxxxxxxx, XX. 00000 (hereinafter the "Company").
WHEREAS,
Client wishes to engage the Company to perform certain work hereinafter
described in accordance with the provisions of this Agreement; and
WHEREAS,
Client finds that the Company is qualified to perform the work, all relevant
factors considered, and
that
such performance will be in furtherance of Client's business
("Business").
NOW,
THEREFORE, in consideration of the mutual covenants set forth herein and
intending to be legally bound,
the parties hereto agree as follows:
1.
SERVICES.
1.1
Services
to Client. The
Company shall provide the services as consultant to Client during term of this
Agreement (hereinafter "Services"), where such Services may encompass the
following:
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(a)
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On-site
Services—Company, within Services, may temporarily place an employee(s)
and/or agent(s) with
Client pursuant to this Agreement ("Consultants"), where such Consultants
shall provide services to
Client under Client's management and/or supervision in location controlled
by Client. Names of Consultants,
with standard and overtime billing rates for each Consultant, and
with
starting dates for each Consultant, shall be attached to this Agreement
as
Exhibit A. Should Client request additional services
subsequent to the execution of this Agreement, and such services
are not
listed on Exhibit A attached
hereto, or should either Client or Company request changes to billing
rates and/or other terms for
any Consultant working under the terms of this Agreement, any such
additions or changes will be subject
to prior written mutual agreement fully executed by the authorized
representatives executing this
Agreement. Such agreed-upon terms shall become a part of this Agreement
as
amendments; and/or
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(b)
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Off-site
Services—Company, within Services, may perform projects of fixed duration
("Off-site Services"). For Off-site Services, Company shall develop
a
scope of work ("Proposal") for each project, where such Proposal(s)
will
contain timelines, list of deliverables, and payment schedules.
Unless
otherwise agreed to by the parties, this Agreement shall apply to
all
Off-site Services provided by
Company as requested by Client hereunder from time to time. Should
Client
request additional services subsequent to execution of this Agreement,
or
should either Client or Company request changes
to billing rates and/or other terms for any Off-site Services under
the
terms of this Agreement, any
such additions or changes will be subject to prior written mutual
agreement fully executed by the authorized
representatives executing this Agreement. Such agreed-upon terms
shall
become a part of this
Agreement as amendments
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1.2
Conformity
to Scope of Work.Full
execution of this Agreement holds Company to apply reasonable commercially
available efforts to fulfill Services.
1.3
Authorized
Representatives. Client
and Company will each identify authorized representatives on their respective
behalves with respect to Services, where such representatives will have the
authority to address questions and direct work related to or arising from
Services (hereinafter "Representatives"). Such Representatives will be specified
in written
document fully executed by and between Client and Company.
1.4
Company
Performance. Company
will perform those tasks and assume those responsibilities specified in
Services. Client agrees and accepts that Company's performance of Services
in
timely manner is dependent upon Client's
timely and effective satisfaction of its tasks and responsibilities, and
upon
timely decisions and approvals by Client. Company will not be liable for
any
delays or failures in performance of Services due to failure of Client to
perform its tasks and responsibilities.
1.5
Term.
This Agreement shall commence upon date of execution of this Agreement, and
continue for the contract duration specified in Exhibit A.
2.
PAYMENT
TERMS.
2.1
Payment
for Services. Company
will submit itemized invoices to Client for the services performed in
accordance
with the provisions of any Proposal or as set out on Exhibit A. All invoices
are
due and payable within 30 days
from
the date of Client's receipt of an invoice.
2.2
Reimbursable
Costs. Subject
to Client's prior written approval executed by an appropriate signatory
authority
for Client, Client shall reimburse the Company for all Reimbursable Costs.
Reimbursable costs include, but are
not
limited to, travel costs, subcontractors, materials, computer costs, telephone,
copies, delivery, etc. that are attributable
to Services (the "Reimbursable Costs"). Travel costs are defined as air travel,
lodging, meals and incidentals,
ground transportation, tools, and all costs associated with travel. The Company
shall provide to Client substantiation of Reimbursable Costs
incurred.
2.3
Manner
of Payment. All
payments shall be made by Client to Company in a manner specified and
expressed
with the mutual written agreement and consent of both Client and
Company.
2.4
Non-Payment.
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(a)
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Payment
is past due thirty (30) business days from date of each Pre-Xxxx/Invoice.
If Client payment is past
due, Company may, without advance notice, immediately cease providing
any
and all further Services without any liability for interruption of
work;
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(b)
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If
Client has any valid reason for disputing any portion of any
Pre-Xxxx/Invoice, Client will so notify the Company in writing within
thirty (30) business days of receipt of any Pre-Xxxx/Invoice by Client,
and
if no such notification is given then Client shall pay Company full
amount
specified by Pre-Xxxx/Invoice. The portion of the Company's
Pre-Xxxx/Invoice which is not in dispute shall be paid in accordance
with
the procedures set forth herein; and
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(c)
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A
finance charge of two percent (2%) per month on the unpaid amount
of each
Pre-Xxxx/Invoice, or the
maximum amount allowed by law, will be charged on past due accounts.
Payments by Client will thereafter
be applied first to accrued interest and then to the principal unpaid
balance. Any attorney fees,
court costs, or other costs incurred in collection of delinquent
accounts
shall be paid by Client. If payment
is not current, the Company may suspend performing further
work.
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3.
RIGHT-TO-HIRE.
On-site
and Off-site consulting services are provided at a great expense to the Company.
In consideration thereof,
during the term of this Agreement and for the one hundred eighty (180) day
period immediately following the
period for which a Consultant last performed services for the Client under
this
Agreement, Client shall not, directly
or indirectly, for itself, or on behalf of any other person, firm, corporation
or other entity, whether as principal,
agent, employee, stockholder, partner, member, officer, director, sole
proprietor, or otherwise, solicit, participate in or promote the solicitation
of
such Consultant to leave the employment of Company, or hire or engage such
Consultant.
Notwithstanding
the above paragraph in this Section 3 if at any time the Client wishes to hire
any Contract Employee provided by Company, Client may request that Company
release the Consultant from his/her employment contract with Company to allow
Client to employ or engage the services of Consultant, either directly of
indirectly. Client acknowledges and agrees that Company, in its sole and
absolute discretion, has the right to accept or refuse Client's
request to employ or engage services of Consultant supplied by Company to
Client. If Company has accepted
Client's request to employ Consultant, either directly or indirectly, and the
Contract Employee has not completed a minimum of eight (8) months of continuous
employment at Client for Company, the Client will pay Company, as liquidated
damages, an amount equal to twenty-five percent (25%) of the Consultant's first
year salary, including
guaranteed bonuses. If Consultant has completed a minimum of eight (8) months
of
continuous employment
at Client for Company, and authorization has been obtained by Client from
Company, then Client may employ or engage the services of Consultant, either
directly or indirectly, without any financial compensation or liquidated damages
payment owed to Company from Client.
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Resumes
requested by Client in writing and submitted to Client are confidential and
for
Client use only. Client agrees that Company is the representative of all
candidates for which resumes are submitted to Client by Company.
Accordingly, Client agrees that if any candidate submitted to Client by Company
is hired either directly or
indirectly by Client thin one hundred eighty (180) days of receipt of the
resume, Client agrees to pay Company, as liquidated damages, an amount equal
to
twenty-five percent (25%) of the Consultant's first year salary, including
guaranteed bonuses.
4. STANDARD
OF CARE.
The
Company warrants that it services specified in Services shall be performed
in a
professional and workmanlike manner
by
personnel possessing competency consistent with applicable industry standards.
No other representation, express
or implied, and no warranty or guarantee are included or intended in this
Agreement, or in any report, opinion, deliverable,
work product, document or otherwise. Furthermore, no guarantee is made as to
the
efficacy or value of any services
specified in Services performed or software developed. THIS SECTION SETS FORTH
THE ONLY WARRANTIES PROVIDED BY THE COMPANY CONCERNING THE SERVICES AND RELATED
WORK PRODUCT. THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR
IMPLIED, OR ARISING BY COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE IN
TRADE,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR OTHERWISE
5. LIABILITY.
5.1
Limitation.
The
Company's liability, including but not limited to Client's claims of
contributions and indemnification
related to third party claims arising out of Services rendered by the Company,
and for any losses, injury or
damages to persons or properties or work performed arising out of or in
connection with this Agreement and for any other
claim, shall be limited to the payment received by the Company from Client
for
the Services provided giving rise to
the
claim. Notwithstanding anything to the contrary in this Agreement, the Company
shall not be liable for any special, indirect, consequential, lost profits,
or
punitive damages.
5.2
Indemnification.
Client
agrees to indemnify and hold harmless Company from any and all loss, damage,
expense,
or liability resulting from bodily injuries or death of persons, and physical
damage to or destruction of tangible property,
arising from or in any connected with the performance of this Agreement by
Client to the extent that such injury, death, damage, or destruction is caused
by the negligence or willful misconduct of Client or its agents or employees
acting within the scope of their agency or employment to Client. Client agrees
to indemnify and hold harmless Company and its partners, principals, agents
or
employees from and against any loss, claim, damage or liabilities (or actions
in
respect thereof that may be asserted by any third party) that may result from
any third party claims
arising out of or relating to Services or any use by Client of any work product
of the Services and will reimburse Company
for all expenses (including counseling fees) as incurred by Company in
connection with any such action or claim, except to the extent any such claim
a)
is finally determined to have resulted from gross negligence or willful
misconduct of Company or b) is covered by Client's indemnification obligations
specified herein.
5.3
Remedy.
Client's
exclusive remedy for any claim arising out of or relating to this Agreement
will
be for the Company, upon receipt of written notice, either (i) to use
commercially reasonable efforts to cure, at its expense, the matter
that gave rise to the claim for which the Company is at fault, or (ii) return
to
Client the fees paid by Client to the Company
for the particular service within. Services provided that gives rise to the
claim, subject to the limitation contained in Section 5.1. Client agrees that
it
will not allege that this remedy fails its essential purpose.
5.4
Survival.
Articles
2, 3, 4, and 7 survive the expiration or termination of this Agreement for
any
reason.
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6. TERMINATION.
Unless
otherwise indicated, any party may at any time and without cause terminate
this
Agreement and/or Proposal
by giving thirty (30) days written notice of such termination to the other
party. In the event of such termination, Client
agrees to pay Company for all of the Services rendered and expenses incurred
by
Company prior to date of termination,
and, if Client is the terminating party, Client also agrees to pay Company
for
any reasonable and unavoidable
costs associated with termination of Services provided and return transportation
of Company personnel, employees
or agents engaged in providing Services and any other costs or expenses
resulting from such early termination.
7. OWNERSHIP
RIGHTS; CONFIDENTIAL INFORMATION
7.1
Ownership
of Work Product. Work
products will be identified in written documentation by the Company.
Title and rights to all written material, originated and prepared for Client
under this Agreement, shall belong
to
Client. However, Company's working papers belong exclusively to Company. Company
is in the business of providing consulting services and developing creative
media and software for a wide variety of clients, and Client understands that
Company will continue these activities. Accordingly, nothing in this Agreement
shall preclude Company from developing creative media or software for itself
or
other clients, irrespective of the possible similarity of
screen
formats, structure, organization, and sequence to materials, which may be
delivered to Client. The rights and
obligations of Client and Company in this paragraph shall survive termination
of
this Agreement.
7.2
Confidential
Information. The
Company acknowledges that the Company and such Company's employees
or agents have heretofore and may, in the course of performing their obligations
hereunder, acquire or be exposed
to information that is proprietary or confidential to the Client, an affiliated
company or a client of the Client or such affiliate. As used in this Agreement,
"Confidential Information" shall mean and include all information relating
to
Work performed by the Company, including, without limitation, any work of any
kind and nature which has heretofore been
performed by the Company for the benefit of the Client (specifically including,
without limitation, any and all design
concepts, specifications, source codes, object codes and user and technical
documentation created or developed by
the
Company), whether such information is written or oral and whether such
information has been or is disclosed by the
Client to the Company, obtained by the Company through observation or
examination of any of the Client's documents or materials or developed by the
Company in connection with the performance of this Agreement by the
Company.
The
Company agrees that the Company (i) will hold the Confidential Information
in
strictest confidence, (ii) will
not
disclose any of the Confidential Information to any third party, (iii) will
not
permit any person or entity to examine
or make copies of any document or other tangible material, or any portion
thereof, prepared by the Company or that
comes into the Company's possession or under the Company's control and contains
Confidential Information, (iv) will
not
sell, assign, market, license, transfer or otherwise dispose of any of the
Confidential Information and (v) during the
term
of this Agreement and after its expiration or termination, for any reason,
will
not use any Confidential Information except for efforts pertaining to the Work
performed by the Company on behalf of the Client; provided,
however,
the
Company shall have no liability to the Client with respect to the use, or
disclosure to others not party to this agreement
of such confidential information as the Company can establish by credible
written evidence:
(a) was
generally publicly known, without fault on the Company's part, subsequent to
the
Company becoming
aware of the information,
(b) was
rightfully known by or available to the Company prior to any work for or
communication by
the
Client of such information and the Company provides to the Client within one
(1)
month of the date of learning of such
information written documentation evidencing such prior knowledge,
or
(c) is
received by the Company at any time as a matter of right, without being subject
to any agreement or understanding of secrecy, from a source other than the
Client.
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In
this
regard, the Company agrees that the fact that the Company had prior knowledge
of
a particular item of Confidential
Information, or that such a particular item is or becomes generally known to
the
public, shall not permit the Company's
disclosure to others or use of the same in connection with one or more other
known items of Confidential Information unless the entire particular combination
itself, as well as its advantages and operability, were previously known
to
the Company or the public generally for the same specific purposes and uses
as
disclosed or contemplated by the
Client.
The
Company will advise each of its employees, agents and contractors of their
obligations to keep Confidential
Information confidential in accordance with the provisions of this Agreement,
and the Company shall use its best efforts to assist the Client in identifying
and preventing any unauthorized disclosure or use of any Confidential
Information.
Without limiting the foregoing, the Company shall advise the Client immediately
in the event the Company learns or has a reason to believe that any person
or
entity who has had access to Confidential Information has violated or
intends
to violate the terms of this Agreement and the Company will at its expense
cooperate with the Client in taking injunctive
or other equitable relief in the name of the Client or the Company against
any
such person or entity. Upon termination
of this Agreement or at the Client's request, the Company will promptly turn
over to the Client all documents and
other
tangible materials in the Company's possession or under the Company's control
that contain or relate to any Confidential Information.
8.
MISCELLANEOUS.
8.1
Insecurity
and Adequate Assurances from Client. If
reasonable grounds for insecurity arise with respect to Client's
ability to pay for the Services in a timely fashion, the Company may demand
in
writing adequate assurances of Client's
ability to meet its payment obligations under this Agreement. Unless Client
provides the assurances in a reasonable
time and manner acceptable to Company, in addition to any other rights and
remedies available, Company may
partially or totally suspend its performance while awaiting assurances, without
liability to Client.
8.2
Insecurity
and Adequate Assurances from Company. If
reasonable grounds for insecurity arise with respect to
Company's ability to perform Services in a timely fashion, the Client may demand
in writing adequate assurances of Company's
ability to meet its performance obligations under this Agreement. Unless Company
provides the assurances in
a
reasonable time and manner acceptable to the Client, in addition to any other
rights and remedies available, Client may
partially or totally suspend its performance while awaiting assurances, without
liability to Company.
8.3
Severability.
Should
any part of this Agreement for any reason be declared invalid, such decision
shall not affect
the validity of any remaining provisions, which remaining provisions shall
remain in full force and effect as if this Agreement
had been executed with the invalid portion thereof eliminated, and it is hereby
declared the intention of the parties
that they would have executed the remaining portion of this Agreement without
including any such part, parts, or portions which may, for any reason, be
hereafter declared invalid. Any provision shall nevertheless remain in full
force and
effect in all other circumstances.
8.4
Modification
and Waiver. Waiver
of
breach of this Agreement by either part shall not be considered a waiver
of
any other subsequent breach.
8.5
Independent
Contractor. The
Company is an independent contractor of Client.
8.6
Notices.
Client
shall give the Company written notice within one hundred eighty (180) days
of
obtaining knowledge
of the occurrence of any claim or cause of action which Client believes that
it
has, or may seek to assert or allege,
against the Company, whether such claim is based in law or equity, arising
under
or related to this Agreement or to the transactions contemplated hereby, or
any
act or omission to act by the Company with respect hereto. If Client fails
to
give
such notice to the Company with regard to any such claim or cause of action
and
shall not have brought legal action for such claim or cause of action within
said time period, Client shall be deemed to have waived, and shall be
forever
barred from bringing or asserting such claim or cause of action in any suit,
action or proceeding in any court or before any governmental agency or authority
or any arbitrator. All notices or other communications hereunder shall be
in
writing, sent by courier or the fastest possible means, provided that recipient
receives a manually signed copy and the transmission
method is scheduled to deliver within 48 hours, and shall be deemed given when
delivered to the address specified
below or such other address as may be specified in a written notice in
accordance with this Section.
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If
to the
Company:
e4site,
Inc. d/b/a Visionaire
Attn:
Xxxxxx Xxxx
0000
Xxxxxxxx Xxxxx
Xxxxxxxx,
XX. 00000
If
to
Client:
New
Motion Inc.
Attn:
Xxxxx Xxxxxx
00
Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Any
party
may, by notice given in accordance with this Section to the other parties,
designate another address or person or
entity
for receipt of notices hereunder.
8.7
Assignment.
The
Agreement is assignable or transferable by Client. This Agreement is not
assignable or transferable
by the Company without the written consent of Client, which consent shall not
be
unreasonably withheld or delayed.
8.8
Disputes.
The
Company and Client agree and accept to submit any and all disputes to
non-binding arbitration
with the American Arbitration Association, pursuant to the guidelines and
procedures of the American Arbitration
Association. If the dispute is not resolved through non-binding arbitration,
then the parties may take other appropriate
action subject to the other terms of this Agreement.
8.9
Section
Headings. Title
and
headings of sections of this Agreement are for convenience of reference only
and
shall not affect the construction of any provision of this
Agreement.
8.10
Representations;
Counterparts. Each
person executing this Agreement on behalf of a party hereto represents
and
warrants that such person is duly and validly authorized to do so on behalf
of
such party, with full right and authority to
execute this Agreement and to bind such party with respect to all of its
obligations hereunder. This Agreement may be
executed (by original or telecopy signature) in counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute
but one and the same instrument.
8.11
Cooperation.
Client
and Company will cooperate in taking actions and executing documents, as
appropriate,
to achieve the objectives of this Agreement. Client and Company agree that
Client's payments and Company's performance are dependent on each party's timely
and effective cooperation with each other.
8.12
Governing
Law and Construction. This
Agreement will be governed by and construed in accordance with the laws of
California, without regard to the principles of conflicts of law. The language
of this Agreement shall be deemed
to
be the result of negotiation among the parties and their respective counsel
and
shall not be construed strictly for or against any party. Each party (i) agrees
that any action arising out of or in connection with this Agreement shall
be
brought solely in courts of the State of California, in Los Angeles, or the
United States District Court for Los Angeles,
(ii) hereby consents to the jurisdiction of the courts of the State of
California and the United States District Court
for
California, and (iii) agrees that, whenever a party is requested to execute
one
or more documents evidencing such
consent, it shall do so immediately. In the event of any such dispute resolved
within the courts of law, the prevailing
party shall be entitled to reasonable attorney's fees and associated
costs.
8.13
Entire
Agreement; Survival. This
Agreement, including any Exhibits and/or Addendums, states the entire Agreement
between the parties and supersedes all previous contracts, proposals, oral
or
written, and all other communications
between the parties respecting the subject matter hereof, and supersedes any
and
all prior understandings,
representations, warranties, agreements or contracts (whether oral or written)
between Client and the Company respecting the subject matter hereof This
Agreement may only be amended by an agreement in writing executed by the parties
hereto.
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8.14
Force
Maieure. The
Company shall not be responsible for delays or failures (including any delay
by
the Company to make progress in the prosecution of any Services) if such delay
arises out of causes beyond its control. Such
causes may include, but are not restricted to,
acts
of God
or of
the public enemy, fires,
floods, epidemics, riots, quarantine
restrictions, strikes, freight embargoes, earthquakes, electrical outages,
computer or communications failures, and
severe weather.
8.15
Rights
and Clearances. Client
represents and warrants that is has secured all rights, licenses, and
clearances
with respect to property of Client and/or third parties that Client has
requested Company utilize within the scope of Services. Client agrees and
accepts to indemnify and hold harmless Company against all claims arising from
all
property of Client and/or third parties that Client has requested Company
utilize within the scope of Services.
8.16
Insurance.
Company
represents that it has general liability and E&O insurance covering the
Services rendered
in amount of at least $1 million per policy.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
Date:
July 19, 2005
Client:
New Motion Inc.
By:
/s/ Xxxxx Xxxxxxx
Print
Name: Xxxxx Xxxxxxx
Title:
CFO
Company:
e4site, Inc. d/b/a Visionaire
By:
/s/ Xxxxxx Xxxx
Print
Name: Xxxxxx Xxxx
Title: CEO
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This
Exhibit is an addendum to the Software Development and Consulting Agreement
entered into by e4site Inc d/b/a Visionaire, a California corporation, and
New
Motion, Inc. a California corporation, effective July 19, 2005.
This
Schedule covers the specifics of the following services:
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Service:
|
Sr
Systems Engineer
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Consultant:
|
Xxxxxxx
Xxxxxxx
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Start
Date:
|
July
1, 2005
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Contract
Duration:
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12
Months
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Renewal:
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Mutually
decided by Company and Client at least 30 days prior to the expiration
of
the
12-month duration.
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Engagement
Specific:
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1)
Onsite Fulltime
|
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2) Xxxxxxx will be entitled to company holidays, 2 weeks of vacation and 1 week of personal/sick time. |
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Compensation:
|
$7000.00
per calendar month
|
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Expenses:
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Actuals
for locations other than Irvine, CA
|
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Billing
Terms:
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Bimonthly
(Billed on the 1st and 15th of the every month for the following
15
days)
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Payment
Terms:
|
Thirty
(30) days from the date of Invoice.
|
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Project
Location:
|
Onsite
at customer location in Irvine, CA and Offsite
|
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Account
Manager:
|
Xxxxxx
Xxxx
|
|
"Company"
|
"Client" |
|
e4site
Inc. dba Visionaire
|
New Motion, Inc. |
|
By:
/s/ Xxxxxx Xxxx
Print
Name: Xxxxxx Xxxx
Title: CEO
|
By:
/s/ Xxxxx Xxxxxxx
Print
Name: Xxxxx Xxxxxxx
Title:
CFO
|
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