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 10 Corporate Park, Suite 315, Irvine, CA 92606 (hereinafter the "Client"), and e4site, Inc. d/b/a Visionaire, a California corporation, with its principal office at 1601 Lockness Place, Torrance, CA. 90501 (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:
1.1 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:
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.
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.
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
5.1 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