Website Development and Service Agreement

SERVICE AGREEMENT the (Agreement) made as of the 1st day of March, 2005 (the

Effective Date) by and between Brooklyn Cheesecake & Desserts Company, Inc. a

corporation organized and operating under the laws of New York and having

offices at 20 Passaic Avenue, Fairfield, New Jersey 07004 (the "Client") and

Burbro Capital, Inc, a corporation organized and operating under the laws of New

York and having offices at 4 Five Ponds Road, Waccabuc, New York 10509.

WHEREAS, Consultants are in the business of providing certain software and

computer consulting services pertaining to the international network of

computers and computer networks known by the name Internet; and

WHEREAS, Client wishes to retain the services of Consultants to:

(i) locate, establish, install and maintain computer hardware and software to

provide Client with a system to provide information via the World Wide Web

protocol of the Internet (the "World Wide Web"), and allow Internet users to

make transactions (the "Web and Database Server"); (ii) assist Client with

Client's development and operation of a content server to make Client-related

multimedia information accessible via the World Wide Web to Internet users (the

"Client Server") (the Client's presence on the World Wide Web under this

Agreement by the Web and Database Server and the Client Server referred to

herein as the "Site"); (iii) promote the Site; (iv) develop and improve computer

programs and other deliverables to be used in connection with the Site; and (v)

consult with Client with respect to the ultimate transfer of all hardware and

software components of the Web and Database Server to Client's location and

facilities.

WHEREAS, Consultants wish to provide Client with such services;

NOW, THEREFORE, in consideration of the conditions and covenants set forth

hereinafter, it is agreed as follows:

1. Retention

Client hereby retains Consultants and Consultants hereby accept such retention

by the Client.

2. Services

Upon the terms and subject to the conditions contained herein, Consultants agree

to provide to Client consulting services as described in statements of work to

be agreed to in writing between the parties from time to time during the term

hereof (the "Statements of Work") and which shall be consecutively numbered and

annexed hereto as Schedule A. Such services shall be provided in accordance with

the provisions of this Agreement and the applicable Statement of Work.

3. Additional Services

In addition to the services described in this agreement, Consultants shall

perform the following additional services in accordance with the timetable set

forth as Schedule B (the "Timetable"):

3.1. Configuration and Operation of Web and Database Server

Consultants will configure and operate the Web and Database Server at an agreed

upon fully-qualified hosting center as outlined in Schedule C. Consultants and

authorized third parties will have access to the Web and Database Server. No

third-party will have access to the Web and Database Server. Without limitation

of the foregoing, to the extent that any third party software licenses are

required to be obtained by Consultants to perform their obligations hereunder,

Consultants shall obtain such licenses on Client's behalf at no additional cost.

 

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3.2. Removed

3.3. Removed

3.4. Translations into HTML OR EQUIVALENT Format

Provide consulting services to Client and translate Client-supplied text,

graphics and other materials into Hypertext Markup Language (HTML OR EQUIVALENT)

format for use on the Site (such materials, as periodically updated by Client as

part of the Client Server, shall be known as the "Internet Display"). Additional

obligations of the parties with respect to the development of the Internet

Display are further set forth below in Section 4.

3.5. Site Related Programs and Other Deliverables

Develop, in accordance With Section 5 herein, the Site Related Programs and

other Deliverables (as defined herein).

3.6. Site Related Software Developed by Client

Copy, reformat, improve, review or advise on Site related software developed by

the Client, as requested by Client and as set forth in any Statement of Work.

3.7. Software Scripting Routines

In accordance with the Timetable, develop software scripting routines as set

forth in Schedules A and B, Consultants will generate HTML OR EQUIVALENT to make

Client's catalog information of retail merchandise appear on the Web and

Database Server as specified herein (the catalog, together with the software

routines and underlying database is referred to herein as (the "Catalog") and

install, configure and customize the Web and Database Server to enable and track

purchases from the Catalog.

3.8. Recordkeeping

Manage the recordation of all information made available from people accessing

the Site, or purchasing items from the Catalog, including, without limitation

name, address, credit card numbers, products requested and any other information

directly or indirectly obtained from such users (collectively, "User

Information").

3.9. Removed

3.10 Return of Merchandise.

Consultants shall have no liability or obligations in connection with

merchandise acquired by credit card which is subsequently returned to Client by

customer(s) or for the credit of Client's customers, unless such return is

caused by fraud on the part of Consultants or Consultants' gross negligence.

3.11. Removed

3.12. Training

Provide such training, advice and information concerning the use and features of

the Site as Client shall reasonably request.

 

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4. Development of the Internet Display

Consultants shall develop the Internet Display for use on the Client Server.

Upon the provision by Client to Consultants of text, graphics or other

information (collectively, "Content") for use in the Internet Display,

Consultant shall promptly adapt, translate and reformat the Content as necessary

into HTML OR EQUIVALENT format. Client shall make the final determination of all

Content to be used on the Internet Display. All photographs, trademarks, images

or other works owned or controlled by Client and which are specified by Client

for inclusion in the Internet Display shall be provided by Client in clear and

camera ready form necessary for digital translation, or in other format agreed

upon by the parties. The completed version of the Internet Display shall be

provided to Client for acceptance in accordance with the Timetable set forth in

Schedule B.

5. Statements of Work.

5.1. Site Related Programs

As used in this Agreement, the term "Site Related Programs" shall mean the

software deliverables (other than the Internet Display) to be produced by

Consultants hereunder.

5.2. Milestone Schedule

As used in this Agreement, the term "Milestone Schedule" shall mean the schedule

for the development of Site Related Programs as set forth as part of the

relevant Statement of Work.

5.3. Specifications

As used in this Agreement, the term "Specifications" shall mean the requirements

for the development of a Site Related Program or other deliverable, including

operational and functional capabilities and performance, all as set forth as

part of the relevant Statement of Work.

5.4. Information to be Included in the Statement of Work

The Statement of Work shall include the Specifications, Milestone Schedule, and

any other information that may reasonably and customarily be included to provide

the services desired by Client All work hereunder, shall be compensated pursuant

to Schedule D. Consultants shall prepare a Statement of Work in good faith.

Consultants shall not be required to commence work until both parties have

agreed in writing to the Statement of Work. The performance of the services

required in the Statement of Work shall be completed in accordance with the time

frame set forth in the Statement of Work.

6. Delivery and Acceptance of Deliverables

As used in this Agreement, the term "Deliverable" shall mean any product

produced by Consultant hereunder in connection with the Internet Display or any

Statement of Work.

6.1. Time and Manner of Delivery

Consultant shall deliver each Deliverable at the times and in the manner

specified therefore under this Agreement, including any relevant Statement of

Work.

 

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6.2. Procedure for Acceptance

The procedure for acceptance of any Deliverable shall be as follows:

(1) Client shall have thirty (30) days to inspect and test each such Deliverable

when received to determine if it conforms to the Specifications.

(2) If any Deliverables fails to conform to its Specifications, Client shall

give Consultants written notice of the failure stating the defect in the

Deliverables. Consultant shall then have thirty (30) days to remedy such failure

and redeliver such Deliverable to Client. After resubmission, Client shall again

inspect the Deliverable to confirm that it conforms to the Specifications. If

the resubmitted Deliverable again fails Client's acceptance testing, Client may,

in its sole discretion accept the Deliverable as a non-conforming Deliverable.

If Client elects to accept the Deliverable as a non-conforming Deliverable,

Client may in its sole discretion either: (i) withhold a mutually agreed upon

offset from the development fees payable to Consultants for the Deliverable or

(ii) invoice and recover from Consultants the amount of Client's reasonable

out-of-pocket costs to correct, modify, and/or complete the Deliverable in

accordance with the Specifications.

(3) Each Deliverable shall be deemed to be accepted unless notice is provided by

Client in accord with Section 6.2 (2).

(4) Except in instances of Force Majeure or in the case of an extension pursuant

to Sections 5.4 or 6.2 herein, a failure by Consultant to provide Deliverables

to Client within the agreed upon time period shall be a breach under this

Agreement.

7. Confidentiality

7.1. Confidential Information

"Confidential Information" shall mean any information relating to or disclosed

in the course of the Agreement, which is marked as "confidential" or

"proprietary" by the disclosing party. Confidential Information shall not

include any information, which is or becomes generally available to the public

without breach of this Agreement; is in the possession of a party prior to its

disclosure by the other party; or becomes available from a third party not in

breach of any obligations of confidentiality to the disclosing party.

7.2. Prohibition on Disclosure

Each party acknowledges that it will receive Confidential Information of the

other party relating to its technical, marketing, product and/or business

affairs. All Confidential Information of the other party shall be held in strict

confidence and shall not be disclosed or used without express written consent of

the other party, except as may be required by law. Each party shall use

reasonable measures and reasonable efforts to provide protection for

Confidential Information, including measures at least as strict as those, such

party uses to protect its own Confidential Information.

7.3. Confidentiality of User Information

Without limitation of the foregoing, Consultants acknowledge and agree that the

User Information shall be deemed to be Confidential Information of the Client,

and that Consultant not use User Information for any purpose other than that of

fulfilling Consultants' obligations under this Agreement. Neither Consultants

nor any third party on behalf of Consultants, shall have the right, directly or

indirectly, to use, exploit, disclose, transmit, sell, assign, lease or

otherwise convey or make available for access by third parties, any User

Information.

 

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7.4. Confidentiality of Agreement

Except as required by applicable securities laws, neither Client nor Consultants

shall make any announcement or other disclosure to any third party of the

transactions contemplated by this Agreement without the prior approval of the

other party. All requests by Consultants to Client in this regard shall be

directed to the attention of Chief Executive Officer of Client.

8. No Employment

During the term of this Agreement, Client shall not solicit for employment any

agent acting on behalf of Consultants without Consultants prior written consent.

9. Development Credit

Client shall acknowledge Consultants as the site developers of the Site in text

in an "acknowledgments page" of the Internet Display.

10. Intellectual Property

10.1. Ownership and Licensing of Consultants Materials

All techniques, algorithms and methods or rights thereto owned by Consultants at

the time this Agreement is executed and employed by Consultants in connection

with the Site Related Programs (the "Consultants Materials") shall be and remain

the property of Consultants unless they are in the public domain. Consultants

grant to Client a perpetual, irrevocable, royalty free, unrestricted right to

use, modify, transfer and maintain Consultants Materials.

10.2. Ownership of Program Codes

Unless otherwise specified in a Statement of Work, and except for the

Consultants Materials, all Deliverables and other materials, products,

modifications developed or prepared for Client by Consultants under this

Agreement (including any Statement of Work) including without limitation program

images and text viewable on the Internet, any HTML OR EQUIVALENT Code relating

thereto, or any program code created at the request of Client, is the property

of Client and all title and interest therein shall vest in Client and shall be

deemed to be a "work made for hire" and made in the course of the services

rendered hereunder. To the extent that title to any such works may not, by

operation of law, vest in Client or such works may not be considered works made

for hire, all right, title and interest therein are hereby irrevocably assigned

to Client. All such materials shall belong exclusively to Client with Client

having the right to obtain and to hold in its own name, copyrights,

registrations or such other protection as may be appropriate to the subject

matter, and any extensions and renewals thereof. Consultant agrees to give

Client and any person designated by Client, any reasonable assistance required

to perfect the rights defined in this Section.

10.3. Site Related Programs

Client and Consultants recognize that Site Related Programs may contain code

created during the development of such Site Related Program. Notwithstanding any

other provisions of this Agreement, Consultants shall retain a royalty-free

license to utilize any other code developed by it hereunder.

 

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10.4. Property of Client

Nothing herein shall be construed to grant any right or license to Consultants

in or to any Content or other material provided to Consultants hereunder by

Client, other than the right to use such material solely on behalf of Client in

accordance with the terms hereto. All of the foregoing materials, including

without limitation any and all copyrights, trademarks or trade names, are and

shall remain the property of Client.

11. Warranties

11.1. Consultants Warranties

Consultants represent and warrant that:

(a) all of the services to be performed hereunder will be rendered using sound,

professional practices and in a competent and professional manner by

knowledgeable, trained and qualified personnel;

(b) the Deliverables will operate in conformance with the relevant terms of this

Agreement, including without limitation, the Statements of Work;

(c) Consultants are the owner of or otherwise have the right to use and

distribute all materials and methodologies used in connection with providing the

Deliverables;

(d) Consultants will comply with all applicable federal, state and local laws in

the performance of obligations hereunder; the Deliverables are and will be free

of any software disabling devices or internal controls, including, without

limitation, time bombs, viruses, or devices of similar nature;

(f) the Deliverables (other than information or materials supplied by Client and

reproduced accurately in the Deliverables) shall not infringe upon any third

party copyright, patent, trade secret or other proprietary right; and

(g) the Web and Database Server shall be maintained and kept up-to