Website Development and Service Agreement

 

Exhibit 10.36

 

                  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.

 

 

                                      -1-

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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.

 

 

                                       -2-

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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.

 

 

                                      -3-

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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.

 

 

                                       -4-

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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.

 

 

                                       -5-

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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) t