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Public Offer of HOLBI
This Public Offer with your Online Order(s) sent to us or our Official Representatives and Agents by E-mail, Fax, Phone, Mail or via our Web-Sites, Forums, Chats, Shops, etc. is full legal equivalent of our Custom Software Development Agreement(s) with You and/or Your Payment or Technical Representatives, hereinafter called the “Customer”.
This Agreement is established according to English Law between you as the Customer and our DataLink UK Ltd company registered with the Companies House of the United Kingdom under Number 05622862 acting according to Companies Act 1985 (and/or the HOLBI Corporation as our Payment Agent and Official Representative in USA registered under Number 2352008 subject to the Laws of state Delaware and acting according to the Corporate Laws of USA and/or one of the partners of HOLBI on behalf of HOLBI ), hereinafter called the “Developer”.
Customer and Developer, hereinafter called as “Parties”, agree with the following Terms of this Agreement:
1. PURPOSE OF AGREEMENT
Customer desires to retain Developer as an independent contractor to develop the computer software (the “Software”) described in the Functional Specifications contained in Exhibit A attached to and made
part of this Agreement. Developer is ready, willing and able to undertake the development of the Software and agrees to do so under the terms and conditions set forth in this Agreement.
2. PREPARATION OF DEVELOPMENT PLAN
Developer shall prepare a development plan (“Development Plan”) for the Software, satisfying the requirements set forth in the Functional Specifications. The Development Plan can also be the proposal
sent to Customer if it includes:
A. Functional Specifications for the Software;
B. A listing of all items to be delivered to Customer under this Agreement (“Deliverables”);
C. A payment schedule setting forth the amount and time of Developer’s compensation.
3. ACCEPTANCE OF DEVELOPMENT PLAN
Developer shall deliver the Development Plan to Customer no later then seven days after signature of this contract. Customer shall have three days to review the Development Plan. Upon approval of the Development Plan by Customer, it will be marked as Exhibit B and will be deemed by both parties to have become a part of this Agreement and will be incorporated by reference. Developer shall then commence development of Software that will substantially conform to the requirements set forth in the Development Plan. If the Development Plan is in Customer’s reasonable judgment unsatisfactory in any material respect, Customer shall prepare a detailed written description of the objections. Customer shall deliver such objections to Developer within three days of receipt of the Development Plan. Developer shall then have three days to modify the Development Plan to respond to Customer’s objections. Customer shall have three days to review the modified Development Plan. If Customer deems the modified Development Plan to be unacceptable, Customer has the option of terminating this Agreement upon written notice to Developer or permitting Developer to modify the Development Plan again under the procedure outlined in this paragraph. If this Agreement is terminated, the obligations of both parties under it shall end except for Customer’s obligation to pay Developer all sums due for preparing the Development Plan and the ongoing obligations of confidentiality set forth in the provision of this Agreement entitled “Confidentiality.”
4. PAYMENT FOR DEVELOPMENT PLAN
If the Development Plan is not accepted by Customer and Customer terminates this Agreement, Developer shall be entitled to compensation on a time and materials basis at an hourly rate of £50 plus expenses to the date of termination. Developer shall submit an invoice detailing its time and expenses preparing the Development Plan. If the invoice amount is less than the amounts paid to Developer prior to termination, Developer shall promptly return the excess to Customer. If the invoice amount exceeds the amounts paid to Developer prior to termination, Customer shall promptly pay Developer the difference. However, Developer’s total compensation for preparing the Development Plan shall not exceed $500. In case initial proposal is deemed to replace the Development Plan, Customer is not charged.
The total contract price shall be set forth in the Development Plan. Customer shall pay the Developer upon execution of this Agreement. The remainder of the contract price shall be payable in installments according to the payment schedule to be included in the Development Plan. Each installment shall be payable upon completion of each project phase by Developer and acceptance by Customer in accordance with the provision of this Agreement entitled “Acceptance Testing of Software”.
6. LATE FEES
Late payments by Customer shall be subject to late penalty fees of 2% per month from the due date until the amount is paid.
IN HARD COPY OR DIGITAL FORM. ALL OFFENDERS WILL BE SUED IN A COURT OF LAW.
Customer shall make available to Developer, at Customer’s expense, all materials, facilities and equipment that is required to perform the job. Customer agrees to provide these items in timely fashion but not later than one week after signature of this agreement. Failure to do so may result in delays or Developer being unable to continue.
8. CHANGES IN PROJECT SCOPE
If at any time following acceptance of the Development Plan by Customer, Customer should desire a change in Developer’s performance under this Agreement that will alter or amend the Specifications or other elements of the Development Plan, Customer shall submit to Developer a written proposal specifying the desired changes. Developer will evaluate each such proposal at its standard rates and charges. Developer shall submit to Customer a written response to each such proposal within three working days following receipt thereof. Developer’s written response shall include a statement of the availability of Developer’s personnel and resources, as well as any impact the proposed changes will have on the contract price or warranty provisions of this Agreement. Changes to the Development Plan shall be evidenced by a “Development Plan Modification Agreement.” The Development Plan Modification Agreement shall amend the Development Plan appropriately to incorporate the desired changes and acknowledge any effect of such changes on the provisions of this Agreement. The Development Plan Modification Agreement shall be signed by authorized representatives of Customer and Developer, whereupon Developer shall commence performance in accordance with it. Should Developer not approve the Development Plan Modification Agreement as written, Developer will so notify Customer within three working days of Developer’s receipt of the Development Plan Modification Agreement. Developer shall not be obligated to perform any services beyond those called for in the Development Plan prior to its approval of the Development Plan Modification Agreement. For purposes of this Agreement, each Development Plan Modification Agreement duly authorized in writing by Customer and Developer shall be deemed incorporated into and made part of this Agreement. Each such Development Plan Modification Agreement shall constitute a formal change to this Agreement adjusting fees as finally agreed upon. If both parties agree the Development Plan Modification Agreement can be substituted by email correspondence as long as it fulfills the same purpose.
9. ACCEPTANCE TESTING OF SOFTWARE
Immediately upon completion of each development phase set forth in the Development Plan’s delivery schedule, Developer shall deliver and install the Software and other materials required to be provided in accordance with the delivery schedule. Customer shall have seven days from the delivery of the Software to inspect, test and evaluate it to determine whether the Software satisfies the acceptance criteria in accordance with procedures set forth in the Development Plan, or as established by Developer and approved by Customer prior to testing. If the Software does not satisfy the acceptance criteria, Customer shall give Developer written notice stating why the Software is unacceptable. Developer shall have fourteen days from the receipt of such notice to correct the deficiencies. Customer shall then have seven days to inspect, test and reevaluate the Software. If the Software still does not satisfy the acceptance criteria, Customer shall have the option of either: (1) repeating the procedure set forth above, or (2) terminating this Agreement pursuant to the section of this Agreement entitled “Termination.” If Customer does not give written notice to Developer within the initial seven-day inspection, testing and evaluation period or any extension of that period, that the Software does not satisfy the acceptance criteria, Customer shall be deemed to have accepted the Software upon expiration of such period. Upon completion of the final development phase set out in the Development Plan, acceptance testing shall be performed on the Software in its entirety to determine whether the Software satisfies the acceptance criteria and operates with internal consistency. Customer shall have seven days to perform such tests. If the completed Software does not satisfy the acceptance criteria, the parties shall follow the acceptance procedures described in the preceding paragraph If and when the acceptance tests establish the Software delivered upon completion of any phase of development complies with the acceptance criteria, Customer shall promptly notify Developer that it accepts the delivered Software.
10. MAINTENANCE OF SOFTWARE
Beginning on the first day of the first month following expiration of the warranty period set forth in the section of this Agreement entitled “Warranties,” Developer shall provide the following error-correction and support services:
A. Telephone hot-line support during Developer’s normal days and hours of business operation. Such support shall include consultation on the operation and utilization of the Software. Customer shall be responsible for all telephone equipment and communication charges related to such support; and
B. Error correction services, consisting of Developer using all reasonable efforts to design, code and implement programming changes to the Software, and modifications to the documentation, to correct reproducible errors therein so that the Software is brought into substantial conformance with the Specifications.
11. PAYMENT FOR MAINTENANCE
Customer shall pay Developer for error-correction and support services based on time and material billing according to Developers price list.
12. CUSTOMER’S ROLE IN MAINTENANCE
The provision of the error-correction and support services described above shall be expressly contingent upon Customer promptly reporting any errors in the Software or related documentation to Developer in writing and not modifying the Software without Developer’s written consent.
13. OWNERSHIP OF SOFTWARE
Developer shall retain all copyright, patent, trade secret and other intellectual property rights Developer may have in anything created or developed by Developer for Customer under this Agreement (“Work Product”) Subject to payment of all compensation due under this Agreement , Developer grants Customer a nonexclusive, nontransferable, royalty-free license to use the Work Product. The license shall authorize Customer to:
A. Install the Software on computer systems owned, leased or otherwise controlled by Customer
B. Utilize the Software for its internal data-processing purposes (but not for time-sharing or service bureau purposes), and
C. Copy the Software only as necessary to exercise the rights granted in this Agreement.
14. OWNERSHIP OF BACKGROUND TECHNOLOGY
Customer acknowledges that Developer owns or holds a license to use and sublicense various preexisting development tools, routines, subroutines and other programs, data and materials that Developer may include in the Software developed under this Agreement. This material shall be referred to as “Background Technology.” Developer’s Background Technology includes, but is not limited to PHP, Apache, MySQL, osCommerce and Linux. Developer retains all right, title and interest, including all copyright, patent rights and trade secret rights in the Background Technology. Open Source Background Technology such as Linux, osCommerce, MySQL, Apache, PHP and other software licensed as Open Source is not subject to this provision. Subject to full payment of the consulting fees due under this Agreement, Developer grants Customer a nonexclusive, perpetual worldwide license to use the Background Technology in the Software developed for and delivered to Customer under this Agreement, and all updates and revisions thereto. However, Customer shall make no other commercial use of the Background Technology without Developer’s written Consent
15. SOURCE CODE ACCESS
Customer agrees that the Software developed under this Agreement shall be delivered to Customer in source code form. The source code shall be used solely by Customer to maintain the Software and shall be subject to every restriction on use set forth in this Agreement. Customer agrees not to disclose the source code to third parties except on a need-to-know basis under an appropriate duty of confidentiality. In cases where object code is delivered to Customer because of specific Background Technology chosen, Customer agrees to be bound to the same terms.
THE SOFTWARE FURNISHED UNDER THIS AGREEMENT IS PROVIDED ON AN AS “AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED OR STATUTORY; INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOR ARE THERE ANY WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. DEVELOPER DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER’S NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SOFTWARE.
17. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS
Developer warrants that Developer will not knowingly infringe on the copyright or trade secrets of any third party in performing services under this Agreement. To the extent any material used by Developer contains matter proprietary to a third party, Developer shall obtain a license from the owner permitting the use of such matter and granting Developer the right to sub-license its use. Developer will not knowingly infringe upon any existing patents of third parties in the performance of services required by this Agreement, but Developer MAKES NO WARRANTY OF NON-INFRINGEMENT of any COUNTRY. If any third party brings a lawsuit or proceeding against Customer based upon a claim that the Software breaches the third party’s patent, copyright or trade secrets rights, and it is determined that such infringement has occurred, Developer shall hold Customer harmless against any loss, damage, expense or cost, including reasonable attorney fees, arising from the claim. This indemnification obligation shall be effective only if:
A. The third party intellectual property rights involved were known to Developer prior to delivery of the Software
B. Customer has make all payments required by this Agreement
C. Customer has given prompt notice of the claim and permitted Developer to defend, and
D. The claim does not result from Customer’s modification of the Software. To reduce or mitigate damages, Developer may at its own expense replace the Software with a noninfringing product.
18. LIMITATION OF DEVELOPER’S LIABILITY TO CUSTOMER
A. In no event shall Developer be liable to Customer for lost profits of Customer, or special or consequential damages, even if Developer has been advised of the possibility of such damages.
B. Developer’s total liability under this Agreement for damages, costs and expenses, regardless of cause, shall not exceed the total amount of fees paid to Developer by Customer under this
C. Developer shall not be liable for any claim or demand made against Customer by any third party except to the extent such claim or demand relates to copyright, trade secret or other proprietary rights, and then only as provided in the section of this Agreement entitled Intellectual Property Infringement Claims.
D. Customer shall indemnify Developer against all claims, liabilities and costs, including reasonable attorney fees, of defending any third party claim or suit arising out of the use of the Software provided under this Agreement, other than for infringement of intellectual property rights. Developer shall promptly notify Customer in writing of any third party claim or suit and Customer shall have the right to fully control the defense and any settlement of such claim or suit.
During the term of this Agreement and for five years afterward, Developer will use reasonable care to prevent the unauthorized use or dissemination of Customer’s confidential information. Reasonable care means at least the same degree of care Developer uses to protect its own confidential information from unauthorized disclosure. Confidential information is limited to information clearly marked as confidential, or disclosed orally that is treated as confidential when disclosed and summarized and identified as confidential in a writing delivered to Developer within seven days of disclosure. Confidential information does not include information that:
A. The Developer knew before Customer disclosed it
B. Is or becomes public knowledge through no fault of Developer
C. Developer obtains from sources other than Customer who owe no duty of confidentiality to Customer, or
D. Developer independently develops.
20. TERM OF AGREEMENT
This Agreement commences on the date it is executed and shall continue until full performance by both parties, or until earlier terminated by one party under the terms of this Agreement.
21. TERMINATION OF AGREEMENT
Each party shall have the right to terminate this Agreement by written notice to the other if a party has materially breached any obligation herein and such breach remains uncured for a period of thirty days after written notice of such breach is sent to the other party. If Developer terminates this Agreement because of Customer’s default, all of the following shall apply:
A. Customer shall immediately cease use of the Software.
B. Customer shall, within seven days of such termination, deliver to Developer all copies and portions of the Software and related materials and documentation in its possession furnished by Developer under this Agreement.
C. All amounts payable or accrued to Developer under this Agreement shall become immediately due and payable.
D. All rights and licenses granted to Customer under this Agreement shall immediately terminate. This Agreement may be terminated by Customer for its convenience upon thirty days’ prior written notice to Developer. Upon such termination, all amounts owed to Developer under this Agreement for accepted work shall immediately become due and payable and all rights and licenses granted by Developer to Customer under this Agreement shall immediately terminate.
The charges included here are include all taxes of Developer as Independent Contractor. Developer shall not pay any interest or penalties incurred due to late payment or nonpayment of Customer. Customer(s) and their Payer(s) are liable for taxes in their own countries and keep in mind that any Payment(s) to Developer are allowed deductions. Special Conditions regarding VAT is applied for Customers from the United Kingdom and European Union. These details we supply on demands of our Customers.
23. RELATIONSHIP OF THE PARTIES
Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties. Developer is an independent contractor, and neither Developer nor Developer’s staff is, or shall be deemed, Client’s employees. In its capacity as an independent contractor, Developer agrees and represents, and Customer agrees, as follows:
A. Developer has the right to perform services for others during the term of this Agreement subject to non-competition provisions set out in this Agreement, if any.
B. Developer has the sole right to control and direct the means, manner and method by which the services required by this Agreement will be performed.
C. Developer has the right to perform the services required by this Agreement at any place or location and at such times as Developer may determine.
D. Developer will furnish all equipment and materials used to provide the services required by this Agreement, except to the extent that Developer’s work must be performed on or with Customer’s computer or existing software.
E. The services required by this Agreement shall be performed by Developer, or Developer’s staff, and Customer shall not be required to hire, supervise or pay any assistants to help Developer.
F. Developer is responsible for paying all ordinary and necessary expenses of its staff.
G. Neither Developer nor Developer’s staff shall receive any training from Customer in the professional skills necessary to perform the services required by this Agreement.
H. Neither Developer nor Developer’s staff shall be required to devote full-time to the performance of the services required by this Agreement.
I. Customer shall not provide insurance coverage of any kind for Developer or Developer’s staff.
24. NON-SOLICITATION OF DEVELOPER’S EMPLOYEES OR SUB-CONTRACTORS
A. Customer agrees not to knowingly hire or solicit Developer’s employees during performance of this Agreement and for a period of five years after termination of this Agreement without Developer’s written consent.
B. Customer agrees not to knowingly hire or solicit Developer’s sub-contractors during performance of this Agreement and for a period of five years after termination of this Agreement without Developer’s written consent.
25. MEDIATION AND ARBITRATION
If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually agreed-upon mediator in Berkshire, UK. Any costs and fees other than attorney fees associated with the mediation shall be shared equally be the parties. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the parties agree to submit the dispute to binding arbitration in Berkshire, UK under the rules of the English Laws.
26. ATTORNEY FEES
If any legal action is necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses.
27. COMPLETE AGREEMENT
This Agreement together with all exhibits, appendices or other attachments, which are incorporated herein by reference, is the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter. In the event of a conflict between the provisions of the main body of the Agreement and any attached exhibits, appendices or other materials, the Agreement shall take precedence.
28. MODIFICATIONS TO AGREEMENT
Modifications and amendments to this Agreement, including any exhibit or appendix hereto, shall be enforceable only if they are in writing and are signed by authorized representatives of both parties.
29. GOVERNING LAW
This Agreement shall be interpreted under English law. Any and all legal actions relative hereto shall be in the courts of Berkshire, United Kingdom.
All notices and other communications given in connection with this Agreement shall be in writing and shall be deemed given as follows:
A. When delivered personally to the recipient’s address as appearing in the introductory paragraph to this Agreement;
B. Three days after being deposited in the UK or US mails, postage prepaid to the recipient’s address as appearing in the introductory paragraph to this Agreement, or
C. When sent by fax or telex to the last fax or telex number of the recipient known to the party giving notice. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first-class or certified mail, or the recipient delivers a written confirmation of receipt. Any party may change its address appearing in the introductory paragraph to this Agreement by giving notice of the change in accordance with this paragraph. ND STRICTLY PROHIBITED TO DISTRIBUTE, PUBLISH, OFFER FOR SALE, LICENSE OR SUBLICENSE, GIVE OR DISCLOSE TO ANY OTHER
The rights and obligations under this Agreement are freely assignable by either party. Customer shall retain the obligation to pay if the assignee fails to pay as required by this Agreement.
Each party represents and warrants that on this date they are duly authorized to bind their respective principals by their signatures.
33. ONLINE ORDERS
Special Terms and Conditions apply to Online order(s) according to current Public Offer:
Signatures of Parties on hard copies of this Agreement are not required in order for the Agreement to be legally bind on you. Using of your Online Order(s) with current Public Offer of HOLBI has the same legal force and effect as if you had actually signed hard copies of this Agreement. Any amendments and supplements to this Agreement and present Public Offer shall be executed by concluding Agreement(s). The Parties shall act faithfully to each other, performing the best works and services to the mutual interests.
This Agreement comes in force from the moment of your first inquiry, order or contacting us regarding our products and services. All conditions of this Agreement and obligations of the both Parties are automatically and momentarily applied from the date of the Customer’s first payment for our products or services. The Agreement is valid during one year from the date of the Customer’s first payment. Parties shall keep all records accurately, showing clearly correspondence and any transactions according to this Agreement. Developer and Customer(s) are not be liable for any breach by reason of force majeure or delay on beyond their control.
The Subject and Contents of this Agreement is Web-Development and Design of Online Store (Shop, Site, Portal, etc.) based on osCommerce or its equivalent eCommerce scripts and other Content Management Systems (CMS), related Software, Web-Services and Works, which specification and details may be negotiated or not with Online Orders and/or messages by E-mail, Fax, Phone, as well as via Forums, Chats and Web-Conferences.
Developer works according to the Public Price-List of Services or on a time basis at an hourly rate of $75 (€50, £50 ex. VAT dependently on the conditions) plus real expenses. Prepayments are allowed but chargebacks are possible in case they are accepted by the Developer. Developer has the right to complete ordered Services and Works according to Agreement(s) and prepayment(s). In case of cancellation of current Agreement, Developer has the right for compensation on a time basis according to Report of Completed Works and Services plus real expenses. Payments made according to Invoices with full details of ordered services and works are the proofs of final payments and cannot be returned or cancelled. Payments made by Customers or their Payers according to such Invoices mean acceptance of Acts of completed works and services.
DataLink UK Ltd t/a Holbi (05622862)
24 Luna Close, Swindon, Wiltshire SN25 2LZ, United Kingdom
Updated 01/01/2007 v1
Updated 23/08/2010 v1.1