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.
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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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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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.
2.1 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.
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Payment is past
due thirty (30) business days from date of each Pre-Bill/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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If Client has
any valid reason for disputing any portion of any Pre-Bill/Invoice,
Client will so notify the Company in writing within thirty (30)
business days of receipt of any Pre-Bill/Invoice by Client, and if
no such notification is given then Client shall pay Company full
amount specified by Pre-Bill/Invoice. The portion of the Company's
Pre-Bill/Invoice which is not in dispute shall be paid in
accordance with the procedures set forth herein; and
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A finance
charge of two percent (2%) per month on the unpaid amount of each
Pre-Bill/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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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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Initial:
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Page 2 of 7
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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
5.1 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
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