DEVELOPMENT SERVICES AGREEMENT
------------------------------
This Development Services Agreement (hereinafter the "Agreement"),
is
hereby executed on this 26th day of January, 2005, by and between
VSUS
Technologies, Inc., a Delaware corporation ("VSUS") having its
principal
executive offices at 444 Madison Avenue, 24th floor, New York, NY
10022, c/o
Great Court Capital, and ViVaVu Systems Ltd., an Israeli
corporation ("ViVaVu")
founded by Mr. Amiram Ofir, an individual residing in Israel
("Amiram") who,
prior to today, was the founder and Chief Executive Officer of
VSUS.
WHEREAS, VSUS is the owner of software and related intellectual
property originally developed by an affiliate of ViVaVu and
obtained by VSUS
when it acquired certain assets of that affiliate, and as further
developed
through January 25, 2005 (the "Original IP");
WHEREAS, in settlement of a dispute between VSUS and Amiram, among
other consideration, Amiram is now leaving the employ of VSUS, and
licensing
from VSUS the Original IP, and retaining exclusive rights, subject
to the terms
and conditions of the various agreements being executed
simultaneously herewith
(including without limitation the agreement in accordance with
which the Source
Code is being placed into escrow (the "Source Code Escrow")), to
access the
source code thereof, as the same may be supplemented and amended
from time to
time (the "Source Code"), and acquiring ownership of certain
Internet sites used
for hosting certain applications facilitated by the Original IP;
and
WHEREAS, VSUS expects in the very near future to acquire 1stAlerts
Inc., a Delaware corporation ("First Alerts") and requires the
assistance of
ViVaVu and its employees and/or agents to assist it in providing
customer
service and support in the form of responding to e-mails from
customers of First
Alerts regarding technical problems they encounter in using the
services of
First Alerts (such responses referred to herein as "Customer
Support Services");
and
WHEREAS, VSUS also may require the help of ViVaVu in developing
applications of the Original IP as may be useful in that business,
as well as,
if VSUS so desires, to help VSUS develop ancillary businesses
utilizing the
Original IP, subject to the Software License Agreement between the
parties
hereto of even date herewith; which services may include software
design,
programming, maintenance, training and/or debugging, among other
things
(collectively, the "Development Services"), even though ViVaVu has
cautioned
VSUS that such services may involve considerable expense and time
delays,
depending upon the scope thereof; and may therefore not be
economically prudent
(but nevertheless is willing to provide them if VSUS so demands);
and
WHEREAS, VSUS also may wish to avail itself of ViVaVu's capability
to
provide certain Internet-based email hosting services managed by
ViVaVu (the
"Hosting Services"); and
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WHEREAS, ViVaVu is willing to provide such Development Services,
Customer Support Services and Hosting Services (collectively, the
"Services")
upon the terms and subject to the conditions set forth below;
NOW, THEREFORE, in consideration of the mutual promises hereinafter
set
forth, the parties, intending to be legally bound, hereby covenant
and agree as
follows:
1.
PROVISION OF SERVICES
---------------------
(a) Development Service Orders. VSUS shall notify ViVaVu, not less
than
ten (10) Israeli Business Days in advance, to request any
Development Services
which VSUS may require from time to time. For purposes of this
Agreement,
"Israeli Business Days" are Sunday through Thursday, except the
entire Jewish
holidays of Passover and Sukkot, in both cases as observed in
Israel. When and
if VSUS is unable to give the requisite notice, ViVaVu nevertheless
will attempt
in good faith to accommodate VSUS's needs so long as doing so would
not
materially interfere with other previously arranged business
commitments. Such
notice shall specify the type of Development Services needed,
including the
specific problems to be remedied (detailing the symptoms) and/or
the features
desired to be added. ViVaVu then shall deploy, for the
consideration and subject
to the terms and conditions set forth herein, the necessary
personnel to perform
such Development Services for VSUS, commencing not later than the
tenth (10th)
Israeli Business Day after the aforesaid notice.
If such Development Services require travel outside of Israel, an
additional ten
(10) Israeli Business Days' notice (for a total of twenty days)
shall be
required. In no event shall ViVaVu be required to have more than
one of its
employees be deployed outside of Israel due to performance of the
Services at
the same time. Also, in the event that more than 180 person-hours
per month are
required of ViVaVu by VSUS, any additional time in such month shall
be billed at
150% of the otherwise applicable rates, in deference of the
additional expense
ViVaVu may incur due to hiring and training additional personnel.
(b) Personnel. ViVaVu and/or such of its employees or agents as
Amiram
reasonably believes are competent to provide the necessary
assistance to VSUS,
shall make themselves available to perform the Services hereunder.
However, the
parties understand that ViVaVu will be attempting to establish its
own business,
and cannot permit its employees to devote an unreasonable amount of
time and
attention to the Services. Therefore, no personnel of ViVaVu shall
be required
to devote more than 50% of their normal monthly time to the
Services, nor shall
any such personnel be required to spend more than two consecutive
weeks out of
every month outside of Israel performing the Services.
(c) Hosting Services. Hosting services shall be comprised of those
services described on ViVaVu's web site (www.safe-mail.net) from
time to time
for business users. ViVaVu shall provide such Hosting Services for
VSUS and its
affiliates, including service and support (even if the other
hosting services
are provided at a location other than ViVaVu), at the rates and
upon
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the terms and conditions to which the parties mutually may agree;
except that
such rates, terms and conditions to VSUS shall be at least as
favorable as the
most favorable rates, terms and conditions then offered by ViVaVu
to any
unaffiliated third party business customer for comparable services.
(d) Customer Support Services. ViVaVu shall, at the request of
VSUS,
perform Customer Support Services for First Alerts or any other
affiliate of
VSUS, by responding directly to emails sent from customers of such
affiliate,
and by return email offering technical advice and assistance to the
extent
reasonably feasible by e-mail. Unless the parties mutually
otherwise agree in
writing, telephone support is not contemplated as part of the
Customer Support
Services. Upon request from First Alert, ViVaVu shall train, at
ViVaVu's
facility in Israel, a First Alert employee or agent to perform
Customer Support
Services at First Alert (to the extent technically feasible to do
so), provided
that ViVaVu shall not be responsible for providing any food,
lodging or other
expenses of such person while in Israel, and shall be paid as
Customer Support
Services for all time spent in such training, which shall be
carried out, as
time reasonably permits, by the ViVaVu person who normally would
perform the
Customer Support Services. ViVaVu shall charge VSUS the sum of
Forty-Two Dollars
and Fifty Cents ($42.50) per hour for Customer Support Services,
and may deploy
such of its personnel, during regular Israeli business hours, as
Amiram
reasonably believes are appropriate to perform such functions, but
in any event
shall use commercially reasonable efforts to respond to any such
emails from
customers by the end of the following Israeli Business Day.
If additional personnel are required to perform the Customer
Support Services,
ViVaVu shall so advise VSUS or its affiliate (as the case may be)
and shall have
up to thirty (30) days to obtain each such additional person. At
the
commencement of any Customer Support Service for an application
(including that
of First Alerts) for which ViVaVu has not previously provided
support, an
advance payment of One Thousand Dollars ($1,000.00) shall be paid
to ViVaVu to
compensate it for necessary familiarization with the system. If
ViVaVu is still
providing such support for that system six months later, then the
$1,000 shall
be credited towards the fees due ViVaVu for such Customer Support
Services in
the sixth month or thereafter.
(e) No Obligation to Share New Technology. The parties acknowledge
that
ViVaVu, besides providing Services hereunder, expects to be
primarily engaged in
development of his own technology and applications based upon the
Original IP.
Nothing herein shall be deemed to oblige ViVaVu to disclose to
VSUS, or to
utilize in rendering the Services, any such proprietary technology,
know-how or
applications belonging to ViVaVu which is not contained within the
Original IP
(even if it may be based upon it). VSUS may use other software
engineers and
others, unaffiliated with ViVaVu, to develop various applications
and technology
and, if such require adjustments to or recourse to the Source Code
for
implementation or adjustment of any kind, ViVaVu shall make its
personnel
available to perform such services, which shall be deemed
Development Services
hereunder. If VSUS requires ViVaVu to solve a technological need
for which
ViVaVu has developed its own solution, ev
