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DESIGN AND DEVELOPMENT AGREEMENT

The following agreement (“Agreement”) contains the complete terms and conditions that will apply between you (“Customer”) and Alphaware Corporation (“Alphaware”), an Illinois corporation having a business office and address at 210 S. Forest Cove Dr., Round Lake, IL 60073, if all of the following conditions are met: (1) you read and agree to the terms and conditions of the Agreement and indicate your acceptance of the terms and conditions of the Agreement by clicking “I Agree” at the Order Page; (2) you fully and correctly submit all information requested of you in the following Order Form; and (3) you submit proper payment pursuant to Section 3, of this Agreement. This Agreement shall become effective on the date (the “Effective Date”) that payment is received and accepted by Alphaware.

ALPHAWARE IS WILLING TO PROVIDE DESIGN AND DEVELOPMENT SERVICES TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS HEREIN, Alphaware IS UNWILLING TO PROVIDE SERVICES TO YOU.

WHEREAS, Alphaware has developed, owns and markets proprietary, Internet-based, e-commerce solutions and offers web site hosting services on the Internet; and

WHEREAS Customer wishes to purchase the web design and development services of Alphaware;

NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, Alphaware and Customer agree as follows:

1. DEFINITIONS
A. “Deliverables” means any work designed, created, and/or produced by Alphaware in connection with this Agreement and as further set forth in the Statement of Work.

B. “Software” means the Alphaware eCommerce software, current release version, including any updates provided by Alphaware, and Alphaware’s proprietary technology and source code.

C. “Statement of Work” means the information provided by Customer to Alphaware in responses to the Design Preferences Form.

D. “Development Services” means the services described in Section 2 of this Agreement.

E. “Customer’s Content” means any computer programs, designs, data, video or audio materials, graphics or other materials provided by Customer to Alphaware pursuant to this Agreement. Customer’s Content includes, but is not limited to, end user data collected by Customer, and information regarding merchandise or services sold by Customer through its Web Site.

F. “Custom Work Product” means all designs, discoveries, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, information, and materials made, conceived, or developed by Alphaware after the Effective Date on behalf of Customer in furtherance of the Web Site or other Services provided to Customer under the terms of this Agreement, and paid for by Customer. Custom Work Product does not include any preexisting software owned by Alphaware, or any Customer Content or any third party software products incorporated into the Custom Work Product.

G. “Generic Modules” means discrete computer program subroutines that are not specific to the functions of the Custom Work Product but are useful generally in Alphaware’s business and that are designated as “Generic Modules” in writing signed by both parties.

H. “Alphaware Technology” means any and all existing software, technology, know how, algorithms, procedures, techniques, and solutions associated with the use, design, development, testing, and distribution of the Custom Work Product and improvements to such existing software and related technology, which technology is owned by Alphaware or its suppliers and used by Alphaware in the development effort hereunder.

I. “Intellectual Property” means intellectual property or proprietary rights, including but not limited to copyright rights, moral rights, patent rights (including patent applications and disclosures), rights of priority, mask work rights, and trade secret rights, recognized in any country or jurisdiction in the world.

J. “Alphaware’s Content” means any and all material developed by Alphaware and made available for use by Customer, including any designing of Customer’s Web Site, and templates prepared by Alphaware for use by Customer.

K. “Web Site” means Customer’s Internet presence, identified by the domain name provided by Customer.

2. WEB SITE DEVELOPMENT SERVICES
A. Development Services. Alphaware agrees to provide web site development, and related services that substantially comply with the Statement of Work.

B. Testing. Alphaware will provide Customer with a link to the Deliverables. Customer shall have 14 days after Alphaware provides the link to inspect and test the Deliverables to determine if it conforms to the Statement of Work. If the Deliverables fail to materially conform to the specifications in the Statement of Work, Customer shall give Alphaware written notice of the failure describing the defect in the Deliverable with sufficient specificity so as to allow Alphaware to easily identify and rectify the failure. Such specificity should include specific page, file or URL references and detailed information about the nature of the defect.

C. Time to Cure. Alphaware shall then have 30 days to remedy such failure or defect and redeliver such Deliverables to Customer. Customer shall have 14 days after Alphaware redelivers to inspect and test the Deliverables to determine if it conforms to the Statement of Work. If the Deliverables continue to fail to materially conform to the specifications in the Statement of Work, then: (i) either Party may terminate this Agreement; or (ii) if both Parties agree, Alphaware will be given an opportunity to cure any defects in accordance with this section.

D. Acceptance. The Deliverables shall be deemed to be accepted (a) upon written notice by Customer to Alphaware of such acceptance or (b) upon expiration of the time period for Customer’s inspection without written notice to Alphaware that the Customer believes the Deliverables fail to conform to Specification in the Statement of Work. Customer shall not unreasonably withhold or delay acceptance.

3. FEES
A. Fees. In consideration of the Design and Development Services, Customer will pay to Alphaware all fees due according to the prices and terms listed in the order invoice. All sales are final, and Alphaware offers no partial or full refunds.

B. Payment. Development and setup fees are due immediately. If a payment is returned or rejected by Alphaware’s bank, or incurs additional costs for Alphaware (e.g., bank fees) for any reason, then Customer shall pay a service fee of $20 and reimburse all such fees and costs incurred by Alphaware, and Customer shall be immediately deemed to be in default of this Agreement. All amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is less, until fully paid. If Customer defaults, Customer agrees to pay Alphaware its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights.

C. Taxes. All fees charged by Alphaware for the Services and Deliverables are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Deliverables, all of which Customer will be responsible for and will pay in full, except for taxes based on Alphaware’s net income. If Alphaware is required to pay directly any such taxes, Customer will, upon receipt of Alphaware’s invoice, promptly reimburse Alphaware for any such taxes paid by Alphaware.

4. SUBLICENSE
Customer may not sublicense or resell any of Alphaware’s Services to any third parties without the prior written permission of Alphaware. Any attempts to do so would be considered a material breach and grounds for termination of this Agreement.

5. USE OF CUSTOMER’S NAME AND TRADEMARKS
Customer hereby grants Alphaware a non-exclusive right and license to use Customer’s name and such of Customer’s trade names, trademarks, and service marks (collectively, “Customer’s Marks”) as are listed on Customer’s Content or otherwise provided to Alphaware in connection with this Agreement (a) on Alphaware’s own Web Sites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing Alphaware’s Services, and, (c) in applications reasonably necessary and ancillary to the foregoing. Customer may use Alphaware’s trade name, trademarks, and service marks (collectively, “Alphaware’s Marks”) in advertising and publicity in conjunction with the offering of Customer’s Content via Alphaware, provided that Customer shall submit copy to Alphaware for its prior written approval, and provided further that under no circumstances shall such use imply that Alphaware endorses, sponsors, certifies, approves or is responsible for Customer’s Content. Notwithstanding the foregoing, Customer need not obtain Alphaware’s prior written approval where use of Alphaware’s Marks is limited to inclusion in a list of systems via which Customer’s Content is available.

6. TERMINATION
A. Termination For Breach. Each Party shall have the right to terminate this Agreement upon Fifteen (15) days prior written notice if the other Party is in material breach of any term of this Agreement, including without limitation the payment of monies, and the breaching Party fails to remedy such breach within the fifteen day notice period.

7. CUSTOMER’S CONTENT
A. Ownership of Content. Customer acknowledges and agrees that (a) unless expressly stated elsewhere, Alphaware has no proprietary, financial, or other interest in Customer’s Content; (b) Alphaware does not, by virtue of offering or hosting Customer’s Content, edit, distribute, market, sublicense, publish, or otherwise provide Customer’s Content to end users; and (c) Customer is solely responsible for the information, data, graphics, text, quality, performance, and all other aspects of its Content. Customer warrants that it owns or has the right to use and offer the Content in connection with Customer’s Marks in the manner in which such Content is offered and will be offered by Customer during the term of this Agreement.

B. Protection of Content. Customer acknowledges and agrees that Customer is solely responsible for ensuring the integrity of its Content. Although Alphaware may, from time to time, provide data backup services, Customer is advised that Alphaware in no way is responsible for any damages resulting from the loss of Customer’s Content, regardless of the reason for such loss. Customer is solely responsible for backing up/archiving Customer’s Content.

8. ALPHAWARE’S CONTENT
Upon payment of any fees charged for the development of Alphaware’s Content, Alphaware hereby provides Customer with a non-exclusive, royalty-free, irrevocable, non-supported license to use Alphaware’s Content as part of Customer’s Web Site. Customer agrees to maintain a text hyperlink to "http://www.alphawaresolutions.com" in the header or footer of the website. The link must be standard html, contain no javascript, and be approved by the Licensor.

9. RIGHTS IN DATA AND WORKS
A. Grant of License. Upon final and full payment of all fees associated with the Deliverables, Alphaware grants to Customer a limited, non exclusive, license to use, reproduce, display, and perform, works based upon the Deliverables, Alphaware Technology, the Generic Modules, and all Intellectual Property rights contained in the Custom Work Product. This license shall only extend to the extent necessary for the Customer to maintain a Web Site while hosted with Alphaware.

B. Alphaware’s Rights. Custom Work Product, Software, Alphaware’s Content, Alphaware Technology, the Generic Modules, and all Intellectual Property rights contained therein are and will remain the sole and exclusive property of Alphaware.

C. Alphaware’s Rights to Customer Content. Customer grants to Alphaware a non exclusive, worldwide, perpetual, royalty free license to reproduce, modify, display, perform, adapt, transmit, distribute, improve, and otherwise use the Customer Content in connection with Alphaware’s performance under this Agreement.

D. Alphaware’s Right to Re-Use Deliverables. Customer understands and specifically acknowledges that Alphaware may, in its sole discretion, use some or all of the Deliverables (excluding Customer Content) in the future in commercial development projects for other customers. Nothing in this Agreement shall be construed to limit Alphaware’s right to do so or to use any information in non-tangible form retained by Alphaware as ideas, information and understandings retained in the human memories of its employees, contractors and agents, provided that Alphaware may only use information of general applicability and not Customer’s Confidential Information. This provision shall not be construed to operate to grant Alphaware any rights under Customer’s patents or copyrights.

E. Customer to Cooperate. Customer will provide reasonable assistance and cooperation to Alphaware to acquire, transfer, maintain, perfect, and/or enforce the Intellectual Property rights in the Web Site (excluding Customer Content) and Custom Work Product, including, but not limited to, execution of a formal assignment or such other documents as may be reasonably requested by Alphaware. Customer hereby appoints the officers of Alphaware as Customer’s attorneys in fact to execute such documents on Customer’s behalf for this purpose.

F. Security Interest. To the extent that Customer has any interest or right with respect to the Deliverables, such interest or right shall be subject to (and Customer hereby grants to Alphaware) a security interest to the extent of the difference between the payments that are due and are actually made by the Customer for such Deliverables and the fees set forth in Exhibit A. Upon request of Alphaware, Customer shall execute any instrument required to perfect such security interest.

10. POINT OF CONTACT
Customer shall designate a single Point of Contact in the accompanying Order Form. Customer’s Point of Contact shall have full authority to enter into agreements and make binding decisions on behalf of Customer. Customer agrees that Alphaware may rely on representations made by Customer’s Point of Contact. Customer may change its Point of Contact at any time by giving written notice to Alphaware in accordance with the notice provisions of this Agreement. Alphaware is under no obligation to accept instructions from anyone other than the Point of Contact.

11. CUSTOMER’S INDEMNIFICATION
Customer shall indemnify and hold harmless Alphaware from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorneys fees, arising from or relating to Customer’s provision, or an end user’s use, of Customer’s Content, or any act, error, or omission of Customer in connection therewith, including but not limited to matters relating to incorrect, incomplete, or misleading information; libel; invasion of privacy; infringement of a copyright, trade name, trademark, service mark, or other intellectual property or other right; or violation of any applicable law.

12. WARRANTIES
Each party warrants and represents to the other party that it has the complete right to enter into and perform its responsibilities under this Agreement.

13. DISCLAIMER OF WARRANTIES
THE FOREGOING WARRANTIES ARE MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES AND DELIVERABLES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND Alphaware NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR Alphaware ANY OTHER LIABILITY IN CONNECTION WITH ANY SERVICES PROVIDED UNDER THIS AGREEMENT. Alphaware DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES PROVIDED WILL BE ERROR FREE.

14. LIMITATION OF LIABILITY
ALPHAWARE ASSUMES NO RESPONSIBILITY WITH RESPECT TO CUSTOMER’S OR END USER’S USE OF THE SERVICES AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, AND SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS, OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF Alphaware IS AWARE OF THE POSSIBILITY THEREOF. Alphaware SHALL IN NO EVENT BE LIABLE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY IT FROM CUSTOMER FOR THE SERVICES DURING ANY 12-MONTH PERIOD.

15. NO ASSIGNMENT BY CUSTOMER
Customer may not assign this Agreement without the prior written consent of Alphaware, which Alphaware may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written permission shall be deemed null and void. Alphaware may assign this Agreement, which shall be effective upon written notice provided to Customer.

16. NOTICES
(i) Any notice or other communication (“Notice”) required or permitted under this Agreement shall be in writing and either delivered personally or sent by facsimile, overnight delivery, express mail, or certified or registered mail, postage prepaid, return receipt requested, to the address listed above in this Agreement, for Alphaware or the address provided in the application form submitted with the payment for Customer; (ii) a Notice delivered personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A Notice sent by facsimile shall be deemed given when transmitted, provided that confirmation of that transmission was received. A Notice sent by overnight delivery or express mail shall be deemed given twenty-four (24) hours after having been sent. A Notice that is sent by certified mail or registered mail shall be deemed given forty eight (48) hours after it is mailed. If any time period in this Agreement commences upon the delivery of Notice to any one or more parties, the time period shall commence only when all of the required Notices have been deemed given; (iii) either party may designate, by Notice to the other, substitute addresses, addressees or facsimile numbers for Notices, and thereafter, Notices are to be directed to those substitute addresses, addressees or facsimile numbers.

17. MISCELLANEOUS
(i) The laws of the State of Illinois shall govern the validity and construction of this Agreement and any dispute arising out of or relating to this Agreement, without regard to the principles of conflict of laws; (ii) THE PARTIES SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS, AND AGREE TO VENUE IN LAKE COUNTY, ILLINOIS; (iii) a ruling by any court that one or more of the provisions contained in this Agreement is invalid, illegal or unenforceable in any respect shall not affect any other provision of this Agreement. Thereafter, this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had been amended to the extent necessary to be enforceable within the jurisdiction of the court making the ruling and to preserve the transactions originally contemplated by this Agreement to the greatest extent possible; (iv) the section and subsection headings have been included for convenience only, are not part of this Agreement and shall not be taken as an interpretation of any provision of this Agreement.; (v) this Agreement may be amended, waived, changed, modified or discharged only by an agreement in writing signed by all of the parties; (vi) this Agreement represents the entire understanding of the parties with respect to the subject matter hereof, and there are no representations, promises, warranties, covenants or understandings with respect thereto other than those contained in this Agreement. Without limiting the generality of the foregoing, it is expressly agreed that the terms of any purchase order issued by Customer with respect to the Deliverables provided under this Agreement shall not be applicable and that any acceptance of such purchase order by Alphaware shall be for acknowledgment purposes only; (vii) failure to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of that term, covenant or condition or of any other term, covenant or condition of this Agreement. Any waiver or relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other time; (viii) the remedies set forth in this Agreement are cumulative and are in addition to any other remedies allowed by law. Resort to one form of remedy shall not constitute a waiver of alternate remedies; (ix) wherever used in this Agreement, the singular shall include the plural, and the plural shall include the singular. The use of any gender, tense or conjugation shall include all genders, tenses and conjugations; (x) the Parties are independent contractors and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership; and (xi) this Agreement is only between Alphaware and Customer, and does not make any third-party a beneficiary of this Agreement, whether known or contemplated by either party. Further, this Agreement does not make Customer a third-party beneficiary of any agreement that Alphaware may have with third parties, nor does this Agreement make Alphaware a third-party beneficiary of any agreement that Customer may have with third parties.
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