contract 18sept

8/6/2019 Contract 18sept

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1 APPLICATION DEVELOPMENT AGREEMENT

This Application Development Agreement ("Agreement") is entered into on ______,2009, by and between Avenuesocial, Inc., having its principal place of business at 44288

Fremont Boulevard, Fremont, California 94538 (Developer), and __________________ (anindividual residing at/having its principal place of business at)________________________("Customer").

WITNESSETH:

WHEREAS, Customer is desirous of retaining Developer to develop a Facebookapplication, as described in this Agreement; and

WHEREAS, Developer desires to develop a Facebook application in accordance withthe terms and conditions of this Agreement;

NOW, THEREFORE, Customer and Developer hereby agree as follows:

1. TERM

The term of this Agreement shall commence on the date set forth above, and continueuntil completion of the services provided for in this Agreement or termination pursuant toSections 2 or 3.

2. TERMINATION

a. In General. This Agreement may be terminated by either party upon written notice ifthe other party breaches any material term or condition of the Agreement and such breachremains uncorrected for ten (10) days following written notice from the non-breaching partyspecifying the breach.

b. Failure to Pay. Developer may terminate this Agreement immediately upon notice toCustomer at any time that Customer fails to deliver payment within three (3) days of the date setfor such payment by the parties. Developer shall retain all work product until full paymentbyCustomerfor all services rendered at the time of terminationby Developer is made by Customer.Customer shall pay for all work performed by Developer at the time of termination of thisAgreement, in accordance with the schedules set forth in Exhibit A and Exhibit A-___, attached

hereto.

c. Obligations Upon Termination. Upon termination of this Agreement for any reason,the parties shall have no further obligations pursuant to the terms of the Agreement except as setforth in Sections 7, 8, 9, 18 and 20.

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d. Customer Termination. Customer may terminate this Agreement upon notice toDeveloper. Developer shall retain all work product until full payment by Customer for allservices rendered at the time of termination. Customer shall pay for all work performed byDeveloper at the time of termination of this Agreement, in accordance with the schedules setforth in Exhibit A and Exhibit A-____, attached hereto.

3. SERVICES

a. In General. In consideration of the fees described in Section 4 of this Agreement,Developer will develop the Facebook application as fully described in this Agreement(hereinafter referred to as Web Application.)

b. Work Plan. Developer will prepare a Work Plan for Customer which will include thefollowing:

(a) The specifications for the Web Application;

(b) A listing of all items to be delivered to Customer (the "Deliverables");

(c) A schedule containing a delivery date for each Deliverable; and

(d) A schedule setting forth the amount and timing of Developer'scompensation.

Developer shall deliver the Work Plan to Customer with this Agreement. Customer shallhave five (5) days thereafter in which to accept or reject the Work Plan in writing. If Customerrejects the Work Plan, Customer shall specify in writing its grounds for rejection and Developershall use its best efforts to provide a revised Work Plan acceptable to Customer within thefollowing five (5) days. If Customer rejects the revised Work Plan, Customer shall have theoption of repeating the procedure in this Section 3.b, or terminating this Agreement upon writtennotice to Developer.

Upon acceptance of the Work Plan by Customer, it will be attached as Exhibit A to thisAgreement and shall be incorporated into this Agreement. Developer shall commencedevelopment of the Web Application in conformity to the Work Plan.

c. Acceptance. Developer shall deliver the completed Web Application to Customeraccording to the Work Plan. Customer shall have ten (10) days thereafter in which to inspect,test, and evaluate the Web Application to determine whether it satisfies the acceptance criteriaset forth in the Work Plan. If the Web Application does not satisfy the acceptance criteria,Customer shall give Developer written notice stating why the Web Application is unacceptable.Developer shall have ten (10) days from the receipt of such notice to correct the deficiencies.Customer shall then have ten (10) days to inspect, test and reevaluate the Web Application.Customer shall not unreasonably refuse to accept the Web Application.

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d. Limited Support. During the Acceptance period and for ten (10) days thereafter,Developer shall provide Customer limited e-mail and/or phone support for issues involvingaccess, alterations, and maintenance of the Web Application using third party software and/ortechnology purchased by Customer. Developer is not responsible for providing third party

software and/or technology to Customer.

4. CHANGE OF SCOPE

At any time during the term of this Agreement, should Customer desire Developer toprovide any additional services in the form of a modification of or a change to the Work Plan,Developer and Customer shall comply with the following:

a. Submission of Request. Customer shall submit to Developer in writing all requests byCustomer for any such additional services which alter, amend, enhance, add to, or delete fromthe Work Plan and/or time and/or place of performance (hereinafter referred to as

"Modification/Change Request" or "Request").

b. Acceptance Procedure. Developer will evaluate such Modification/Change Request atno additional charge to Customer as soon as possible but not later than ten (10) working daysfollowing Developer's receipt of the Request.

Developer's written response shall include a statement of the availability of Developer'spersonnel and resources, the impact, if any, on the completion date and the change in costs, ifany. Developer in its sole discretion may refuse to accept the Modification/Change Request.

Developer shall submit to a Revised Work Plan and shall include the following:

(a) Updated specifications for the Web Application;

(b) Updated listing of old and new items to be delivered to Customer (the"Deliverables");

(c) Updated schedule containing a delivery date for each Deliverable; and

(d) Updated schedule setting forth the amount and timing of Developer'scompensation.

Should Customer elect to authorize the Revised Work Plan, Customer will, as soon as possiblebut not later than ten (10) working days, authorize Developer to perform the requestedModification/Change Request by returning a duly authorized copy of the Request to Developer.

c. Performance. Upon such authorization by Customer of the Modification/ChangeRequest, Developer will commence performance in accordance with such Request immediately.Developer shall not be obligated to perform any additional services in advance of written

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authorization from Customer. In the event that Developer commits resources to the performanceof a Modification/Change Request without such prior written authorization, it shall be presumedthat performance of such Modification/Change Request will have no effect on the completiondate.

d. Binding Agreement. For the purposes of this Agreement, each Revised Work Planauthorized in writing by Customer and agreed to by Developer shall be deemed incorporated intoand part of this Agreement as Exhibit A-___ (_____ constituting the number of the revision)and each such Revised Work Plan shall constitute a formal amendment to this Agreementadjusting fees and completion date as finally agreed upon for each authorized Revised WorkPlan. In no event shall the Work Plan be deemed altered, amended, enhanced, or otherwisemodified except through written authorization and acceptance by Customer and Developer of aRevised Work Plan, all in accordance with this Section 4.

5. NON-EXCLUSIVE AGREEMENT & CONFIDENTIALITY

a. Non-Exclusivity. Customer acknowledges that Developer may be and could beperforming services for businesses other than Customer including, without limitation, othercomputer software companies. This Agreement shall not prohibit Developer from representingor performing programming services for such other businesses.

b. Confidentiality. Each party acknowledges that it will receive confidential informationand trade secrets ("Confidential Information") from the other party in the course of developingthe Web Application. The Confidential Information shall be deemed to include all theinformation one party receives from the other, except anything designated as not confidential.For example, business affairs, vendors, finances, properties, methods of operation, computerprograms, employees, documentation, and other such information whether written, oral, orotherwise, is confidential in nature. Each party agrees to maintain the secrecy of the other party'sConfidential Information and agrees not to use it except in developing the Web Application andnot to disclose it to anyone outside Developer or Customer or anyone within Developer orCustomer who does not have a need to know it to perform under this Agreement. "ConfidentialInformation" shall not include any information which is publicly available at the time ofdisclosure or subsequently becomes publicly available through no fault of the recipient party oris rightfully acquired by the recipient party from a third party who is not in breach of anagreement to keep such information confidential.

6. DELIVERABLES AND NON-EXLUSIVE LICENSE

a. Deliverables. Developer agrees that upon completion of this Agreement or fullpayment for work performed after termination of this Agreement, one copy of the WebApplication, including source code, object code and technical documentation, shall be deliveredto Customer.

b. Ownership and Nonexclusive License. Full and exclusive rights in the underlyingsource code and object code of Web Application, including any and all related letters patent,

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trademarks, copyrights, trade secrets, and any other proprietary rights which Developer possessesshall remain with Developer. Nothing herein s conveys an ownership interest in the WebApplication to Customer. Further, nNothing herein shall prevent Developer from using all or aportion of the source code or object code used in the development of the Web Application in anyother project for any third party. Upon Customers full and complete compliance with all the

provisions of this Agreement, Developershall grants Customer a non-exclusive, perpetual, non-transferable, worldwide, limited license solely to use, display, and/or perform the WebApplication. Developer retains all rights in the Web Application that are not expressly granted toCustomer.

c. Developer's Proprietary Software Programs. Notwithstanding the provisions ofSubsections 8.a and 8.b above, it is understood and agreed that Developer may in its solediscretion use its proprietary software programs in developing the Web Application. IfDeveloper uses any such proprietary software programs and so notifies Customer, Customershall not market or in any way use such software programs as independent "stand-alone"programs without the express written consent of Developer, and Customer shall not acquire any

proprietary rights to such programs.

7. REPRESENTATIONS AND WARRANTIES

(a) Warranty of Web Application Performance: Developer, represents and warrantsthat, for thirty (30) days following acceptance of the Web Application by Customer, the WebApplication will be free from programming errors and defects in workmanship and materials,and will conform to the specifications in the Work Plan. If programming errors or other defectsare discovered during the warranty period, Developer shall promptly remedy them at its expense.

(b) Warranty of Title: Developer represents and warrants that he owns and has thecomplete right to license, convey title without any encumbrances to the Web Application andDeliverables covered by this Agreement. Developer further represents and warrants that he hasobtained all required registrations, permissions and consents from all third parties necessary todeliver the Web Application, Background Technology and Deliverables. Developer shall notgrant any rights or licenses to any intellectual property or technology that would conflict with itsobligations or Developers rights under this Agreement.

(c) Warranty Against Disablement: Developer expressly represents and warrants thatno portion of the Web Application contains or will contain any protection feature designed toprevent its use. This includes, without limitation, any computer virus, worm, software lock, dropdead device, Trojan horse routine, trap door, time bomb or any other codes or instructions thatmay be used to access, modify, delete, damage or disable the Web Application or computersystem.

(d) Warranty of Compatibility: Developer, Inc represents and warrants that the WebApplication shall be compatible with Customer's hardware and software as set forth in thespecifications in the Work Plan. Special hardware issues that are not explicitly conveyed in theWork Plan and display a lack of compatibility will NOT be Developers responsibility and

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Customer may submit a Revised Work Plan as described in Section 4.

(e) Warranty Against Intellectual Property Infringement: Developer represents andwarrants that the Web Application and Deliverables shall not infringe on the trademark,copyright, patent, trade secrets or any other rights of any third party. To the extent the Web

Application or the Deliverables infringe upon the rights of any third party, Developer shallobtain a license or consent from such third party permitting the use of the Web Application andDeliverables.

8. INDEPENDENT CONTRACTOR

Developer is and shall at all times be an independent contractor and shall not be deemedan employee or agent of Customer. Nothing in this Agreement is intended to, or shall be deemedto, constitute a partnership or joint venture between the parties.

9. OTHER AGREEMENTS

This Agreement, including Exhibit A, and any revised Exhibit A-____, contains thecomplete agreement between the parties and shall, as of the effective date hereof, supersede allother agreements between the parties relating to the development of the System. The partiesstipulate that neither of them has made any representation with respect to the subject matter ofthis Agreement or the execution and delivery hereof except such representations as arespecifically set forth herein. Each of the parties hereto acknowledges that they have relied ontheir own judgment in entering into this Agreement.

10. MODIFICATION OF AGREEMENT

No waiver or modification of this Agreement or of any covenant, condition, or limitationherein contained shall be valid unless in writing and duly executed by both parties, and noevidence of any waiver or modification shall be offered or received in evidence in anyproceeding, arbitration, or litigation between the parties hereto arising out of or affecting thisAgreement, or the rights or obligations of the parties hereunder, unless such waiver ormodification is in writing, duly executed both parties. The parties further agree that theprovisions of this Section may not be waived except as herein set forth.

11. FORBEARANCE - NO WAIVER

Forbearance or neglect on the part of either party to insist upon strict compliance with theterms of this Agreement shall not be construed as or constitute a waiver thereof.

12. CHOICE OF LAW

It is the intention of the parties hereto that this Agreement and the performance hereunderand all suits and special proceedings hereunder be construed in accordance with and under andpursuant to the laws of the State of California.

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13. VENUE

The parties agree that any action or proceeding arising from or relatingto this Agreement may only be brought in a federal court in the Northern

District of California, San Jose Division or in state court in Santa ClaraCounty, California.

14. AGREEMENT BINDING ON SUCCESSORS

This Agreement shall inure to the benefit of and be binding upon the successors andpermitted assigns of the respective parties.

15. ASSIGNMENT RESTRICTED

Customer may not assign this Agreement in whole or in part without the written consent

of Developer.

16. FAILURE TO PERFORM

Developer shall not be liable for any delay in performance due to force majeure,including strikes, accidents, acts of God, or other delays beyond the control of Developer. Iftimely completion of the Web Application is prevented by any cause of force majeure, or any actof Customer, then such failure or delay shall not constitute default.

17. LIMITED SYSTEM WARRANTY

a. In General. Developer warrants that the Web Application will be performed in aworkmanlike manner and that for a period of thirty (30) days following Customer's acceptance ofthe Web Application, the Web Application will perform according to the technical Work Plan orRevised Work Plan (if any) agreed upon by Developer and Customer. Developer will repair orreplace the Web Application during thirty ninety days as soon as possible after Customer informsDeveloper of any breach of this warranty.

b. Exclusions. This warranty excludes any claims based on defects in the WebApplication caused by Customer, other parties beyond the control of Developer, or the hardware.EXCEPT AS PROVIDED IN SUBSECTION 17.a ABOVE, THERE ARE NO EXPRESS ORIMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OFMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RESPECTINGTHIS AGREEMENT, THE WEB APPLICATION.

18. DEFAMATION

Customer shall not defame, slander, libel, misrepresent, or otherwise tarnish or violateDevelopers reputation. If Developer brings a legal action for the enforcement of this paragraph,

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or because of an alleged dispute, breach, default, or misrepresentation in connection with thisparagraph, Developer shall be entitled to recover attorneys fees and costs incurred in that action,in addition to any other relief to which Developer may be entitled.

19. NONREFUNDABLE DEPOSIT

Customer shall submit a NONREFUNDABLE deposit in the amount of $__________, toDeveloper with an executed copy of this Agreement.

20. ATTORNEYS FEES AND COSTS

If Developer brings a legal action for the enforcement of this Agreement, or because ofan alleged dispute, breach, default, or misrepresentation in connection with any of the provisionsof this Agreement, Developer shall be entitled to recoverreasonable attorneys fees and othercosts incurred in that action, in addition to any other relief to which Developer may be entitled.

IN WITNESS WHEREOF, Customer and Developer have executed this SoftwareDevelopment Agreement to be effective on the date first above written.

DEVELOPER CUSTOMER

Avenuesocial, Inc. Name:______________________________

By:__________________________________ By: ________________________________

Dated: , 2009 Dated: ,

2009

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EXHIBIT A

WORK PLAN

A. Specifications for the Web Application

B/C. Listing of all items to be delivered to Customer (Deliverables);

with Schedule setting forth Developers Compensation; and

Delivery Dates for each DeliverableDelivery Date for Each Deliverable

Deliverables Compensation Delivery Date

D. Schedule setting forth the amount and timing of Developer's compensation

DEVELOPER CUSTOMER


By:__________________________________ By: ________________________________


2009

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* * *

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EXHIBIT A- .

REVISED WORK PLAN

A. Updated Specifications for the Web Application

B. Listing of all items to be delivered to Customer (Deliverables);

Schedule setting forth Developers Compensation; and

Delivery Dates for each Deliverable

Deliverables Compensation Delivery Date

DEVELOPER CUSTOMER


By:__________________________________ By: ________________________________


2009

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contract 18sept

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