This development and marketing agreement (“Agreement”) is entered into by and between Open Interactive, Inc., (“Open Interactive”) and Company(“Client”),  Open Interactive and Client are collectively referred to herein as the “Parties.”

Consulting Services & Terms

1. Open Interactive will provide consulting services to the Client relating to Marketing, Online Media Development, Graphic design and Technology.  The specific nature of the services to be provided by Open Interactive will be as specified in the Schedule (“Services”).  Subject to any lawful restraint imposed upon it by any other party (such as an obligation as to confidence), Open Interactive will make available to the Client all knowledge, information and expertise in its possession in performing the Services.  If the Client wishes Open Interactive to perform any services other than those specified in the Schedule (including without limitation to provide any additional functionality) or to provide further or other Products or software, then Open Interactive shall be entitled to quote the Client separately in writing for the provision of those services or the provision of those products or software.  If the Client accepts that quotation in writing, then the provisions of this Agreement will apply to the provision of those additional services, products or software.

2. Unless otherwise agreed in writing by the parties, the term of this Agreement will commence on the date specified in the Schedule. Customer will be deemed to have accepted the Service as of the Service date. At the end of the Initial Term, the Agreement will be available for renewal at the Client’s request, but will be subject to change with regard to scope of work, and cost of services.

3. Open Interactive reserves the right, upon written change order signed and accepted by Client, to make additional charges in the event: (1) Client causes any delay in the provision of the Services, including, without limitation, any delay resulting from Client’s failure to timely provide Open Interactive with information, materials, instructions, media and/or approvals that are reasonably necessary for the provision of the Services; (2) Client requests additional services; or (3) additional services are necessitated by Client’s acts and/or omissions.  Open Interactive also reserves the right, upon written change order signed and accepted by Client, to make additional charges in the event of an increase in the cost of labor, materials, services or other conditions outside of Open Interactive’s reasonable control.

4. The Parties must agree in writing to any material change in (1) the scope or nature of the Services, and/or (2) costs within Open Interactive’s reasonable control that are associated with the provision of the Services.  Open Interactive shall continue to provide the Services described in this Agreement until any and all material changes have been agreed upon by the Parties.

Products

6. Open Interactive shall supply the Client with Products as ordered by Client in writing and agreed by Open Interactive in writing from time to time.  In the context of this Agreement, “Products” means any hardware and/or third party software provided to the Client by or on behalf of Open Interactive pursuant to this Agreement.

Reporting and Meetings

7. The Client shall make its designee (the “Client Contact”) available to meet with Open Interactive when reasonably required by Open Interactive for the purposes of discussing the status of the Services.  Open Interactive will meet regularly with the Client Contact (by remote communication facility if necessary) and report to the Client on the status of the Services no less than one time per month.

Consulting Rates, and Other Expenses

8. Open Interactive will provide Services to the Client and will be entitled to charge the Client for such Services at the rates specified in the Schedule.  Such rates will not be changed without Client’s prior written consent. Services performed outside of the services outlined in the schedule will be subject the agency rate of $170 per hour unless otherwise agreed to in writing.

9. Open Interactive shall be entitled to provide the Services remotely from its own premises and will not be required to attend the Client’s premises unless necessary to complete the job. Any attendance by Open Interactive personnel at Client’s premises will be limited to 1 hour per meeting, unless more time is required.  Such time period does not include travel time to and from Client’s premises.

10. The Client authorizes Open Interactive to obtain access to the Client’s computing facilities using the remote means of access and subject to any Restrictions on Access set out in the Schedule, for the purposes of providing the Client with Services.

11. Open Interactive will not use the Means of Access to access the Facilities for any purpose other than to provide the Services and will defend, indemnify and hold Client and Client’s directors, officers, employees, and agents harmless from and against any claim, demand, liability, obligation, cost or expense arising out of or related to the  use of the Means of Access to access the Facilities for any purpose other than to provide the Services.

12. Open Interactive will take the following steps to ensure the security of the Facilities (insofar as the use of Open Interactive’s systems and the Means of Access are concerned):

1. Commercially reasonable efforts shall be made by Open Interactive to ensure the security of Client’s passwords;

2. only those employees and contractors of Open Interactive who have executed a Confidentiality Agreement and who are required to access the Facilities for the provision of the Services will be able to do so; and

3. the Facilities will not be accessible by a system or user which transits Open Interactive’s own systems, except as permitted by this Agreement.

13. The Client indemnifies Open Interactive against any loss or damage arising directly or indirectly from any unauthorized use of the Facilities to which Open Interactive has been granted remote access, provided that such unauthorized use has not arisen as the result of any material breach or action by Open Interactive of its own obligations under Clause 10 of this Agreement.

14. Client will reimburse Open Interactive for all reasonable expenses incurred by Open Interactive in carrying out its obligations under this Agreement.  Client will pay Open Interactive for the cost of any Products, including any licensing that Open Interactive is required to pay to obtain a sub-license in favor of Client for any third party software; provided that such expenses and/or costs are approved by Client in writing. (example. Stock Photography License, ecommerce Shopping cart software, any other web based software installed on the client website)

15. Open Interactive shall invoice Client for 50% of the project estimate payable as a down paymnt prior to starting work, and then on an interim basis (at least monthly) for progress payments for any Services performed or Products supplied during the previous month (or during any earlier period which has not previously been invoiced), together with such expenses, as Client is required to reimburse Open Interactive.

Payment of Invoices

Open Interactive’s invoices shall contain such information and detail as Client may reasonably require to enable Client to account for the Services and Products provided to Client.

16. Client shall pay each Open Interactive invoice within thirty (30) days from its receipt of such invoice.  In the event of a dispute between Client and Open Interactive with regard to an invoice or any portion thereof, Client shall pay the undisputed portion of such invoice within thirty (30) days from its receipt of such invoice.

Confidentiality

17. (a) “Confidential Information” means information marked or otherwise identified in writing by a Party as proprietary or confidential or that, under the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential.  It includes, without limitation, non-public information regarding either Party’s products, features, marketing and promotions, trade secrets, data, data structures, source code, object code, know-how, formulas, designs, drawings, photographs, documentation, forms of software or electronic media, processes, ideas, methods, concepts, research, development, information relating to the disclosing Party’s documentation, databases, networks, including information relating to the disclosing Party’s business or financial affairs, which may include business methods, marketing strategies and pricing and also includes the terms of this Agreement. Confidential Information does not include information which: (a) the receiving Party developed independently; (b) the receiving Party knew before receiving it under this Agreement; or (c) is or subsequently becomes publicly available or is received from another source, in both cases other than by a breach of an obligation of confidentiality.

Use of Confidential Information:

The receiving Party will not use the disclosing Party’s Confidential Information without the disclosing Party’s written consent except in furtherance of this business relationship or as expressly permitted by this Section 15, or disclose the disclosing Party’s Confidential Information except as compelled by law, in which case the receiving Party will use its best efforts to give the disclosing Party notice of the requirement so that the disclosure can be contested. The receiving Party will take reasonable precautions to safeguard the disclosing Party’s Confidential Information.  Such precautions will be at least as great as those the receiving Party takes to protect its own Confidential Information.  The receiving Party will disclose the disclosing Party’s Confidential Information only on a need-to-know basis, and only to those employees or consultants who are subject to confidentiality obligations at least as stringent as those imposed by this Section 15.  When Confidential Information is no longer necessary to (d) its performance of this Agreement shall not infringe upon or violate the rights of any third party or any federal, state or municipal laws.  The foregoing warranties do not apply to any third-party materials or works utilized by Open Interactive in providing the Services.

Liability

18. Notwithstanding any other provision in this Agreement, neither Party shall be liable to the other Party for any indirect, punitive, special, incidental or consequential damage resulting from or arising out of the provision of the Services pursuant to this Agreement.  The foregoing shall apply even where such Party was previously advised of the possibility of such damages.

19. Certain provisions relating to the trading of goods and services and other statutes, rules and regulations in the United States of America may imply certain non-excludable warranties or conditions.  To the extent that they are not permitted to be excluded, Open Interactive’s liability for breach of such conditions or warranties and the Client’s sole and exclusive remedy in relation to such breaches shall be limited to:

1. in the case of Products or software or other goods supplied by Open Interactive, at Open Interactive’s option:

   1. the replacement or repair of those Products or software or goods, or the supply of equivalent goods; or

ii) the payment of the cost of replacing or repairing the Products or software or goods or of acquiring equivalent goods; and/or

 

2. in the case of Services, at Open Interactive’s option:

   1. supplying the Services again; or

   2. the payment of the cost of having the Services supplied again.

20. The Client is solely responsible for the proper backup and protection of all of its software and data, as well as the implementation and maintenance of firewalls and security measures (including proper virus control) in relation to the Facilities.

Assistance and Facilities

21. The Client will provide Open Interactive with all reasonable assistance and facilities free of charge, including without limitation of the Means of Access (but not the software used to obtain the Means of Access, which software is the responsibility of Open Interactive to obtain), office facilities, and liaison with the Client Contact in order to permit Open Interactive to efficiently provide the Services.

Conflicts of Interest, Non-Hire Provision

22. Neither Party shall, for a period of two years from the termination of this Agreement, entice away or endeavor to entice away any employee of the other Party.  The Parties acknowledge and agree that the prohibition and restriction contained in this Paragraph 26 are reasonable and necessary to protect the business interests of each Party.

Agreement Non-Exclusive

23. The Client acknowledges that Open Interactive is providing Services to the Client on a non-exclusive basis and that Open Interactive may provide services of the same or a similar nature as the Services to any other party.

Termination

24. This Agreement may be terminated in the following circumstances:

1. Client may terminate any assignment at any time, at which time Open Interactive, Inc. will be compensated for prorated amount for Development Costs, and all expenses will be due and payable within 30 days of termination. Monthly Marketing Costs will not be prorated for terminations after the 1st of the month.

2. Third Party expenses will be subject to terms of third party, and incurred expenses can not be prorated.

 Open Interactive, Inc. reserves the right to terminate any assignment without penalty and deliver current work on any assignment to client, with all invoices for work to date then due and payable immediately. Early termination of any contracted agreement for work will result in an early termination fee of 100% of the remaining agreement(s).

b) Immediately by Open Interactive by notice in writing if the Client fails to remedy a breach of this Agreement (including any provision as to payment) within thirty (30) days of receipt of a notice from Open Interactive of such breach requiring it to do so; or

c) By either Party immediately by notice in writing if the other Party takes any corporate action or other steps are taken or legal proceedings are started (and are not withdrawn, discontinued or struck out within twenty-one days) for its winding up, liquidation or dissolution (other than for the purposes of reconstruction) or the appointment of an administrator, receiver, receiver and manager, official manager, Liquidator, provisional Liquidator, trustee or similar office of it or of any or all of its revenues and assets (“Insolvency Event”), and such Insolvency Event remains in existence in respect of such Party as the time of service of the Notice.

25. Upon termination of this Agreement, however occurring, all amounts unpaid by Client up to the date of termination shall immediately become due and owing and Open Interactive shall be entitled to enforce any and all of its rights and remedies as against Client, at law and in equity; except that Open Interactive shall not be entitled to delete Client’s code or disable Clients website.  Further, Open Interactive agrees to immediately take all steps, upon Client’s written request, to transfer operational control of any website created pursuant to this Agreement to such person or persons as may be identified by Client in such written notice.

General

26. Any notice required or contemplated by this Agreement shall be deemed to have been duly given if it is in writing, properly addressed and delivered personally or mailed by registered or certified mail, postage prepaid addressed or by fax or electronic mail to the Client or Open Interactive at the address set out in the Schedule or this Agreement or such other address nominated by a Party in writing.

27. Client shall be entitled to assign any or all of its rights and/or obligations under this Agreement to any company, person or firm acquiring a majority of its stock or assets, so long as such assignment does not materially increase the scope of the Services or Open Interactive’s obligations under this Agreement.

28. Open Interactive will not be liable to the Client or to any third party for any non-performance or delay in the performance of its obligations under this Agreement, if events or conditions beyond its reasonable control cause the non-performance or delay and Open Interactive gives the Client prompt notice thereof.  In no event will this provision affect Client’s obligation to make payments to Open Interactive under this Agreement except in respect of Services that are unable to be performed by Open Interactive, until they can be performed.

29. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California excluding its conflict of law provisions, and the patent and copyright provisions of federal law.  The Parties expressly and irrevocably consent to the exclusive jurisdiction of the federal and state courts located in Orange County, California.

30. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, such decision shall not affect the validity or enforceability of the Agreement or any of the remaining provisions and this Agreement shall be construed by adding a valid provision which effectuates the intent of the invalid provision as nearly as lawfully possible.

31. Open Interactive is an independent contractor; nothing in this Agreement shall be construed to create a relationship of partnership, joint venture, employment, franchise, or agency between the Parties.  Neither Party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

32. This Agreement, together with the attached Order Information, which are hereby incorporated by this reference, constitutes the complete agreement between the Parties and supersedes all prior or contemporaneous proposals, agreements or representations, written or oral, concerning the subject matter of this Agreement and such Exhibits.

This Agreement may not be modified or amended except in a document expressly stating that it so amends or modifies this Agreement, which document is signed by a duly authorized representative of each Party.

33. This Agreement may be executed simultaneously in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.  The exchange of a fully executed agreement (in counterparts or otherwise) by fax or as an e-mailed document in .pdf format shall be sufficient to bind the Parties to the terms and conditions of this Agreement.

34. Unless specifically provided in this Agreement, the terms and provisions of this Agreement shall survive the termination of this Agreement.