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.
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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) t
