Terms and Conditions of Web and Software Development Services

CONTRACT

FOR WEB AND SOFTWARE DEVELOPMENT  AND I.T. CONSULTING SERVICES

LIMITATIONS OF WARRANTY AND LIABILITY

WEBSITE AND SOFTWARE DEVELOPMENT

Definitions and General Legal Terms

This Contract is entered into on _____________________________, by and between MarpaSoft, herein called “Vendor,” and _______________________________________, herein called “Licensee.”

WHEREAS, Vendor provides management and IT consulting services, and custom Software development (consisting, without limitation, of applications for E-commerce, Social Networking Sites, iPhone Applications, Internet Stores, CMS, Document Management Systems, Workflow Automation, Knowledge Management Systems, Chatrooms, and Web-based Instant Messaging Systems); and

WHEREAS, Licensee desires to retain Vendor’s services for the following projects and purposes:_________________________________________________________________ _________________________________________________________________________;

AND, WHEREAS, Licensee understands that in providing services hereunder Vendor may employ creative design and the creation of Intellectual Property, which shall remain the property of Vendor; NOW, THEREFORE, the Parties hereto agree as follows:

GENERAL TERMS AND CONDITIONS

Italicized terms used herein are more fully defined in the Definitions appended hereto.

1. The term of this agreement shall be for _________________________________ _______________________________________________________, commencing as of the date hereof and continuing until either party shall serve written notice to the other party hereto of its election to terminate this agreement.

2. Licensee shall pay herewith the sum of $________________________ for the purpose of securing Vendor’s services and commencement of work herein.

3. Vendor shall commence work herein on or before _________________________.

4. In consideration of Vendor’s services herein, Licensee shall pay to Vendor;

a. $80.00 per hour for all time spent by Vendor on custom Software development;
b. $250 per hour for management consulting and IT services, not to exceed $1,550 per day, travel and expenses included.

Unless otherwise specified, an initial 30% payment of the full contract value is required prior to commencement of any works. On delivery to the Licensee of a first prototype of the Website or Software outlines a further 20% payment is required. These payments will be followed by staged payments at the completion of each stage of the work thereafter or in equal installments as agreed with Licensee and Vendor (MarpaSoft LLC) in writing at signing, payment due on receipt of invoice, payable to “MarpaSoft LLC.”

Any deductions from the price of goods and services, in respect of any set-off or counter-claim, shall first be approved by Vendor in writing.

Licensee will reimburse Vendor for all reasonable out-of-pocket expenses, including, but not limited to, air fare, lodging, meals and rental of automobiles incurred by Vendor during the development of the Deliverables on behalf of Licensee.

5. In providing its services herein, Vendor shall consult with Licensee to review proposed Software, applicable technologies, custom applications, creative design, and Content. Vendor shall safeguard Licensee’s trade secrets and any proprietary data unique to Licensee, and agrees to non-disclosure of Licensee’s trade secrets and proprietary information. However notwithstanding any non-disclosure agreement, Vendor reserves the right to promote its Software and website design display (herein called “Deliverables”) in the following manners:

a. Display of its Deliverables within promotional material including, without limitation, the Website, interactive CD-ROM’s, collateral printed material, and verbal communication which shall identify Vendor as the creator of the work product displayed thereon;
b. All Websites developed by Vendor shall bear the “MarpaSoft, LLC” strap line at the bottom of each page;
c. The right to link to, refer to, or use for marketing purposes examples of any of Vendor’s work undertaken on behalf of Licensee.

Vendor further reserves the right to re-use, re-engineer, or re-distribute in whole or part, at its discretion, code, code modules, designs, or other components which may have been developed and utilized on behalf of a client. In so doing, Vendor shall secure and protect Licensee’s trade secrets and proprietary data unique to Licensee, but may use Vendor’s own Intellectual Property without restriction in providing services to other Licensees.

6. It is expressly understood, by and between Licensee and Vendor, that Vendor’s work product shall NOT be considered work for hire, and that Vendor retains all rights to the concepts, Intellectual Property, and creative ideas Vendor may employ in providing the above-described services to Licensee. It is further expressly understood, by and between Licensee and Vendor, that should Vendor’s work be deemed, in whole or part, to be work for hire, Vendor may still use and employ its concepts, Intellectual Property, and creative ideas in providing services to other Licensees, without any claim therefor by Licensee.

7. In performance of its services herein, Vendor shall, to the best of its ability, provide high quality website and Software design, consistent with industry standards.

8. Licensee is licensed to use, distribute, and sub-license the Software or Website created by Vendor, in accordance with the Conditions specified in this Agreement, together with any Addendum attached hereto. By their initials here, Vendor and Licensee agree that an addendum is attached hereto further defining the rights and liabilities of the parties:

_________________________(Vendor) _________________________ (Licensee)

9. While Vendor represents that all Websites and Software will be navigable by the majority of search engines, Vendor offers no warranties as to the placement of a site within any search engine index, but will follow best practices and guidelines specified by key search engines.

10. Vendor shall maintain reasonable safeguards against the destruction, loss, or unauthorized alteration of the Website, and shall institute reasonable security procedures to restrict the destruction, corruption, or unauthorized access to the Website, data, and data files, including back-up material.

11. Vendor will maintain and use appropriate virus-protection procedures and Software in connection with the Website.

12. Vendor will produce the Specifications.

LICENSEE’S OBLIGATIONS

13. Upon Vendor’s request, Licensee shall promptly provide to Vendor all information and documents to enable Vendor to perform the Development Work. Vendor reserves the right to decide whether or not to accept any Amendment to the Specifications requested by Licensee with respect to any application, function, or performance criteria not specified in the initial Specifications, or to delete any application, function, or performance criteria specified in the initial Specifications. If Vendor decides to accept any such Amendment, Vendor shall be entitled to make such revision to the Timetable and the Charges as it shall deem reasonably necessary. Vendor shall notify Licensee of the reason for its decision, should Vendor decided not to accept the Amendment.

14. Licensee will, as its sole responsibility, ensure that the Content will at all times comply with all laws, regulations, and codes of practice, will not be defamatory, obscene, or blasphemous, and will not infringe the Intellectual Property Rights of any third party. Licensee shall indemnify and hold Vendor harmless from any claim or action resulting from Licensee’s breach of this provision.

15. Licensee shall operate the Website and use and distribute the Software in accordance with all relevant laws and regulations relating to the protection of personal data including without limitation the Data Protection Act 1998. The Licensee acknowledges and agrees that it is the Licensee’s responsibility to ensure that its use, distribution and sub-licensing of the Software complies with such laws and regulations.

16. Licensee warrants that the use by Vendor of any information or material supplied by the Licensee for the purpose of enabling Vendor to prepare and write the Deliverables does not infringe the Intellectual Property Rights of any third party.

17. Licensee shall indemnify and keep indemnified Vendor against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any breach of the Licensee’s obligations under the Contract and the Licensee’s warranties contained in these Conditions.

18. Licensee undertakes to

a) use the Website in accordance with Vendor’s instructions and only for the Permitted Use;
b) ensure that all its staff who use the Website are properly trained in respect of such use;

RETENTION OF RIGHTS IN VENDOR

19. Ownership of Deliverables: Intellectual Property Rights

a. Licensee acknowledges that any and all of the Intellectual Property Rights created, developed or subsisting in the Deliverables are and shall remain the sole property of MarpaSoft LLC.
b. Upon receipt of final payment by Vendor for the Project Services, Vendor will, upon request, provide to Licensee a complete copy of the Deliverables including electronic files, graphics, source code, and any other tangible materials developed by Vendor in performing the Project Services ("Source Materials"), with the exception of any software and information licensed or used by Vendor which Vendor does not have the right to transfer (for example, Linux, Drupal, Apache, PostgreSQL, Oracle, MySQL, Macromedia Dreamweaver, Adobe Photoshop, etc.), or software previously developed by Vendor (such as form processing scripts). Nothing in this paragraph or elsewhere, however, will prohibit or limit Vendor's use of code, graphics, ideas, concepts, know-how, methods, models, data, techniques, skill, knowledge and experience embodied in, gained, or developed in connection with the Deliverables.
c) Licensee recognizes and understands that any and all Vendor “methodologies and techniques” which include, without limitation, trade secrets, processes, data, know-how, programming codes, documentation, flowcharts, algorithms, business plans, marketing plans, budgeting, licensing, pricing and any other “methodology or technique” is licensed by or through Vendor and remains the property of the Vendor or its respective licensors.
d) Licensee may not reuse or license the “methodologies and techniques” with out the written consent of Vendor, and Licensee understands that penalties for infringement hereof may apply under California law.
e) In the event that new inventions, designs or processes evolve in performance of or as a result of the Development Work, Licensee acknowledges that the same shall be the property of Vendor (MarpaSoft LLC).
f) Licensee shall indemnify and hold Vendor harmless from all liabilities, costs and expenses which Vendor may incur as a result of work done in accordance with the Licensee’s requirements involving infringement of any Intellectual Property Rights. Licensee shall indemnify Vendor against all loss, damages, cost and expenses, suffered as result of any work done in accordance with Licensee’s specification(s) which result in infringement of a patent, registered design or other right in industrial property

20. Licensee agrees to pay all taxes of every kind, federal, state, or municipal, assessed against Vendor by reason of this transaction, and other Charges incurred in the performance of this Contract.

INTERPRETATION OF AGREEMENT

21. A quotation does not constitute an offer of supply, nor shall it bind Vendor to performance of work or services hereunder, until the parties hereto have executed a written agreement.

22. This contract supercedes any and all other agreements, either oral or in writing, between the parties with respect to the subject matter of this contract. This contract contains all the covenants and agreements between the parties with respect to the subject of this contract, and each party acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any party except for the covenants and agreements embodied in this contract. No agreement, statement, or promise not contained in this contract shall be valid or binding between the parties with respect to the subject of this contract. Any modification or amendment to this Contract shall be in writing, and signed by both parties hereto.

23. This contract shall be governed by and construed in accordance with the laws of California.

24. Neither this contract, nor any money due or to become due hereunder, may be assigned by either party without the prior written consent of the other party hereto; providing, however, that Vendor may sub-contract work to be done hereunder at its option; provided, further, that this contract shall be binding on, and inure to the benefit of, each party’s heirs, executors, administrators, successors, and assigns, if any.

25. Any notice required to be given under this contract shall be given in writing either by personal delivery or by registered or certified mail, postage fully prepaid, return receipt requested, and shall be addressed as follows:

Vendor:________________________________________

________________________________________

Licensee:_________________________________________

_________________________________________

DELIVERY OF WORK PRODUCT

26. The parties understand that delivery dates are estimates. Vendor shall use its best efforts to meet delivery schedules, but shall not be liable for delays due to weather, strikes, civil unrest, or other factors beyond Vendor’s control. Signature by any agent, employee, or representative of Licensee shall be deemed conclusive proof of delivery. In the event of delay, Vendor shall not be liable to Licensee in consequential or other damages.

LIMITATIONS OF WARRANTY AND LIABILITY

27. All guarantees and liabilities are subject solely to the terms and Conditions set out herein. Licensee shall rely on its own skills and judgment in relation to use of the goods. Vendor assumes no liability to Licensee in tort for any defect in, failure of, or unsuitability for any purpose, due to any act, omission, or other cause. Vendor’s liability hereunder shall be limited to any breach of its contractual obligations arising under this Contract. Licensee’s sole remedy against Vendor for any failure of any part of the Deliverables to comply with its Specifications shall be to require Vendor to correct such failure, at Vendor’s sole cost, within a reasonable time.

28. Vendor shall not be liable to Licensee for loss of profits, loss of data, goodwill or any type of special, indirect or consequential loss (including loss or damage suffered by the Licensee as a result of an action brought by a third party).

29. Vendor provides custom Software as is, without express or implied warranty, and does not assume responsibility for damage, loss of earnings or other costs incurred through the use of Software. However Vendor will carry out the Development Work and perform all other services with reasonable care and professional skills. Should Licensee become aware of any defect in Vendor’s work product, Licensee shall immediately give written notice thereof to Vendor. Licensee is aware that Deliverables are not warranted as being uninterrupted or error free.

30. In consideration of the payment by Licensee of the support fee specified in the Contract Particulars, in the event that Licensee discovers an Inadequacy and notifies Vendor with full details of the Inadequacy within the support period specified in the Contract Particular, Vendor shall use all reasonable efforts to correct that Inadequacy within a reasonable period of time. Vendor may also, at its discretion, agree to carry out minor changes to the Deliverables if so requested by Licensee. Vendor may, at its option, make an Additional Charge for any change to the Deliverables which is not a correction of an Inadequacy. Any amended or replacement Deliverables supplied in the course of correcting an Inadequacy shall become part of that Deliverable.

31. Notwithstanding anything to the contrary set out in these Conditions, if an Inadequacy has been caused by Licensee’s breach or non-performance of any of these Conditions; by the act of omission of Licensee; or by the fault of any third party; Vendor shall have no liability to Licensee.

WEBSITE AND SOFTWARE DEVELOPMENT

32. When Vendor is nearing completion of the writing of the Deliverables, it will deliver a test version of the Deliverables to the Licensee. Licensee shall test the Deliverables to review their functionality and to test for the presence of bugs and errors and notify Vendor of any changes which it wishes Vendor to make to the Deliverables. If the Licensee does not notify Vendor of any such changes within 10 Working Days from the delivery of the test version, Licensee shall be deemed to have accepted the Deliverables. If the changes requested by Licensee are not contained in the Specifications, Vendor shall have the right to make Additional Charges in order to carry out the changes. Licensee shall not be entitled to refuse to accept the Deliverables due to a minor defect which does not have a material effect on their commercial functionality. If at any time the Licensee shall commence live running of the whole or any part of the Deliverables (as distinct from testing) then the Licensee shall be deemed to have accepted the Deliverables.

33. The procedure described in Paragraph 32 shall be repeated until Licensee confirms in writing that its accepts the Deliverables, or Licensee is deemed to have accepted because of the passage of 10 days as provided in Paragraph 32.

PRODUCT PROMOTION

34. Upon delivery, Licensee hereby authorizes Vendor to display Deliverables within promotional material which includes, but is not limited to, the Website, interactive CD-ROMs, print collateral, and verbal communication. All Websites developed by Vendor will bear the “MarpaSoft LLC” strapline situated at the bottom of each page.

35. Vendor reserves the right to link to, refer to or use as examples any work undertaken on behalf of a client for marketing purposes, and to re-use, re-engineer or re-distribute either in part or whole at its own discretion, code, code modules, designs, or other components which may have been developed on behalf of a client.

DUTIES ON CANCELLATION

Licensee shall reimburse Vendor for all costs incurred by Vendor in the event of any changes to, or cancellation of, an order to supply goods and services. In the event of postponement or cancelation of any order for Software development, Licensee shall reimburse all costs incurred by Vendor plus an amount not less then 50% of the remaining development costs, as estimated by Vendor.

TERMINATION OF AGREEMENT

37. This Contract shall remain in force for the minimum term (if any) specified in the Contract Particulars (the “Minimum Term”) and thereafter unless and until it is terminated if:

a) Licensee fails to pay any sum due to Vendor within 30 days of the due date thereof;
b) Licensee is adjudged a bankrupt;
c) Licensee makes a general assignment for the benefit of creditors;
d) Licensee defaults on the performance of any obligation hereunder;
e) Licensee suffers any judgment against it, to remain unsatisfied and unbonded for 30 days or longer;
f) Licensee institutes or suffers to be instituted any proceedings for the reorganization of its affairs.
g) Vendor is prevented from performing its obligations under this Contract due to an Event of Force Majeure.

CONFIDENTIALITY

38. Vendor acknowledges that all material and information supplied by Licensee which has or will come into Vendor’s possession in connection with its performance hereunder, is Licensee’s confidential and proprietary information (the “Confidential Information”). Vendor shall safeguard all such information, such as trade secrets, processes, data, know-how, program codes, documentation, flowcharts, algorithms, marketing plans, forecasts, unpublished financial statements, budgets, licenses, prices, costs, and employee and customer lists, to the best of Vendor’s ability. Vendor shall release such information only to Vendor’s employees or contractors with a need to know, and not to release or disclose it to any other party.

Vendor shall not, however, be responsible for the security and of any Confidential Information which:

b) is generally disclosed to third parties by Licensee without restriction on such third parties, or
c) is approved for release by written authorization of Licensee.

39. Similarly, Vendor acknowledges that Licensee’s interests may be compromised if its business competitors learn of Licensee’s negotiations with Vendor for services hereunder. Accordingly, Vendor agrees to keep such negotiations confidential, and not to disclose any information to any third party or entity without the prior written permission of Licensee.

40. Licensee acknowledges that Vendor will utilize proprietary techniques to fulfill Specifications, and Licensee agrees not to divulge such techniques. Licensee shall keep confidential all information (written or oral) concerning the business and affairs of Vendor that it shall have obtained or received as a result of the negotiations for, or entering into, this Contract or the performance thereof, including, without limitation, all information contained or embodied in the Deliverables and in any Specifications and documentation relating to the Deliverables, and all information conveyed to the Licensee by training (the “Information”).

41. Licensee shall take all such steps reasonably necessary to ensure compliance by its employees, agents, and sub-contractors with the privacy provision of this Contract.

Definitions and General Legal Terms

Unless the context otherwise requires, the following expressions shall have the following meanings:

Additional Charges

the Charges payable by the Licensee to MarpaSoft LLC at MarpaSoft LLC’s standard prevailing rates from time to time for work undertaken on a time and materials basis together with all expenses incurred

Authority

any governmental, regulatory or administrative body, agency or Authority, any arbitrator or any public, private or industry regulatory Authority or a judicial or quasi-judicial Authority, whether international, national or local

CDPA

the Copyright, Designs and Patents Act 1988

Charges

the Charges set out in the Contract Particulars

Conditions

these Terms and Conditions or any of them; legal agreement between Vendor and the Licensee

Confidential Information

includes the Deliverables, trade secrets, processes, data, know-how, program codes, documentation, flowcharts, algorithms, marketing plans, forecasts, unpublished financial statements, budgets, licenses, prices, costs, and employee and customer lists.

Content

the Content of the Website being all images, displays, menus, pages, sounds or data accessible by WWW users and all such Content made available via the Software due to users of the Software

Contract

the contract for the provision of the Development Work and/or the provision of any other services (as applicable);

Contract Particulars

the particulars prepared by Vendor and signed by the Licensee setting out the goods and services to be supplied by Vendor pursuant to the Contract the Deliverables the Software, and/or the Website (as applicable) to be designed and written by Vendor as specified in the Contract Particulars but excluding the Content;

Development Work

Software development and/or website Development Work as described in the Contract Particulars to be undertaken by Vendor pursuant to these Conditions

Event of Force Majeure

causes beyond the reasonable control of Vendor but not limited to fires, strikes, insurrection or riots, embargoes, or regulations of any civil or military Authority

Infringement of Rights

A violation, as of a law, regulation, or agreement; a breach.

Intellectual Property Rights

any and all copyrights, moral rights, related rights, patents, supplementary protection certificates, petty patents, utility models, trade marks, trade names, service marks, design rights, database rights, semi conductor topography rights, domain name rights, rights in undisclosed or confidential information (such as know-how, trade secrets and inventions (whether patentable or not)), and other similar Intellectual Property rights (whether registered or not) and applications for any such rights as may exist anywhere in the world;

License

the license for the Licensee to use the Deliverables granted pursuant to these Conditions

Licensee

any customer, client, organization or a person ordering Software development or any other services form MarpaSoft LLC

License Fee

the fee payable by the Licensee to MarpaSoft LLC consideration of the License, as specified in the Contract Particulars

MarpaSoft LLC

MarpaSoft LLC, California Limited Liability Company, whose registered office is at 1324 N. Poinsettia Place # 102, Los Angeles, CA 90046; serves as a Vendor of Licensee

Payment Terms

the intervals and dates for the payment of the Charges, as set out in the Contract Particulars

Permitted Use

the use of the Deliverables for the Licensee’s own business purposes

Software

the Software application specified in the Contract Particulars to be designed and written by Vendor pursuant to these Conditions and excluding the Content

Source Materials

a complete copy of the Deliverables including electronic files, graphics, source code, and any other tangible materials developed by Vendor in performing the Project Services ("Source Materials"), with the exception of any software and information licensed or used by Vendor which Vendor does not have the right to transfer (for example, Linux, Drupal, Apache, PostgreSQL, Oracle, MySQL, Macromedia Dreamweaver, Adobe Photoshop, etc.), or software previously developed by Vendor (such as form processing scripts).

Specifications

the written specification of each of the Deliverables to be prepared by Vendor as the same may be altered from time to time pursuant to Condition 1.2 and any related documents such as notes of meetings or telephone conversations, or exchanges of correspondence

Timetable

the Timetable for the performance of the obligations of MarpaSoft LLC the Licensee under the Contract as the same shall be agreed between the parties

Vendor

MarpaSoft LLC as a Vendor of a Licensee

Warranty

an obligation or guarantee that an article or service sold is as factually stated or legally implied by the seller, and that often provides for a specific remedy such as repair or replacement in the event the article or service fails to meet the warranty.

Website

the website (if any) specified in the Contract Particulars to be designed and written by Vendor

Working Day

any day on which the clearing banks in the City of Los Angeles are open for business (excluding 25 December to 1 January (inclusive));

Reference to a statute or statutory provision includes a reference to it as from time to time amended, extended or re-enacted

If you are in agreement with the foregoing, please execute a copy of this agreement in the space provided below and return an executed copy to the Managing Director of MarpaSoft LLC. I agree and wish to accept these Conditions as I am contracting MarpaSoft LLC to undertake my project(s) to be described in the Contract(s) and Contract Particulars

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date indicated below.

Understood, agreed and accepted:

By: _________________________________

Lisa Smirnova, CEO and Managing Director of MarpaSoft LLC