Terms And Conditions

Marutek dba Veplan is a software developer (the "Developer") engaged in the business of designing, developing, integrating, and hosting computer software and providing consulting services to deliver electronic commerce business solutions to its customers (each a "Customer"). By using the Developer’s software, the Customer agrees to be bound by the following terms and conditions (the "Agreement"), which together with a Customer Purchase Order and any Work Orders executed by the Customer and the Developer, comprise the entire agreement between the Developer and the Customer.


ARTICLE I: LICENSE AND HOSTING

Section 1.01 – Grant of License: During the Term, Developer grants Customer a nonexclusive and nontransferable license to use the Software subject to the terms and conditions of this Agreement and the Customer Purchase Order executed by the Customer. Developer shall host the Software and provide Customer with access to the Software via the internet. Developer shall be responsible for any and all costs incurred by Developer to host the Software. Developer shall perform routine backup of all Customer files stored using the Software. Developer reserves the right to reuse or sell components, libraries, database schemas, source code for other projects.

Section 1.02 – Cooperation: Developer and Customer hereby acknowledge that successful performance of the Services shall require Customer to cooperate with Developer in good faith and to provide information as may be requested from time to time. Customer hereby agrees to provide such good faith cooperation and information. Customer shall disclose to Developer the information necessary to assist Developer in delivering the Software.

Section 1.03 – Third Party Technology: Customer hereby acknowledges and agrees that internet access and Microsoft Internet Explorer® Version 6.0 or higher (the "Internet Application") are required to implement and use the Software. Customer shall be solely responsible for acquiring, maintaining, integrating, and updating all necessary equipment and third party software to implement and use the Software, including all costs, fees, and expenses in connection therewith. Developer shall have no obligation to supply, provide, or deliver to Customer internet access or the equipment or software for the Internet Application.

Section 1.04 – Domain Name Registration: Customer hereby acknowledges and agrees that Customer shall be responsible for registering a domain name for the Software. Developer shall use the domain name specified by Customer to host the domain name and the Software as requested by Customer.

Section 1.09 – Service Level: The Software shall be made available to Customer on the twenty four (24) hours a day, seven (7) days a week, less downtime that is attributable to: (i) scheduled network, hardware, or service maintenance; (ii) the acts or omissions of Customer or Customer’s employees, agents, contractors, or vendors gaining access to the Software; or (iii) a failure of the Internet and/or public switched telephone network (collectively, the "Excusable Downtime").


ARTICLE II: PAYMENTS AND FEES

Section 2.01 – Fees and Payment: Developer shall provide the Software to the Customer for the fees listed in the Customer Purchase Order, and Customer shall pay all fees in full. In the event additional consulting services are requested by the Customer, such services shall be performed by Developer at the time and material rates as set forth in an applicable Work Order executed by Customer and Developer. All payment obligations under this Agreement shall survive termination or cancellation of this Agreement.

Section 2.02 – Taxes: Customer shall pay any and all applicable taxes incurred in connection with this Agreement including (without limitation) any applicable sales or use taxes and any applicable personal property taxes (excluding income taxes assessed against Developer).

Section 2.03 – Late Fee: Any amount which is not paid by Customer when due shall be increased by a late charge equal to 1½% of such unpaid amount for each month (18% per annum) in which such amount is due and not paid.


ARTICLE III: TERMINATION

Section 3.01 – Term: This Agreement shall be valid for the Term as defined in the Customer Purchase Order, and shall only be terminated or canceled as provided under this Article III. Customer may not terminate this Agreement during the Initial Term set forth in the Customer Purchase Order. After the Initial Term Customer or Developer may terminate this Agreement upon thirty (30) days written notice to the other party.

Section 3.02 – Cancellation: If a party violates its obligations under this Agreement, the other party may cancel this Agreement by sending written notice describing the noncompliance to the noncomplying party (the "Cancellation Notice"). Upon receipt of the Cancellation Notice, the noncomplying party shall have thirty (30) days from the date of receipt of such notice to cure any such noncompliance (the "Cure Period"). If such noncompliance is not cured within the required thirty (30) day period, the party providing the Cancellation Notice shall have the right to cancel this Agreement as of the expiration date of the Cure Period.

Section 3.03 – Nonpayment: Notwithstanding anything to the contrary, Customer failure to pay an invoice when due shall constitute a material breach of this Agreement and be sufficient cause for cancellation of this Agreement by Developer as provided hereunder. Developer shall exercise such right of cancellation by submitting a notice of nonpayment to Customer (the "Nonpayment Notice"). Upon receipt of Nonpayment Notice, Customer shall have twenty (20) days to cure the nonpayment. If Customer fails to cure the nonpayment within such twenty (20) days, Developer shall have the right to cancel this Agreement as of the date established by Developer in the Nonpayment Notice. Cancellation of this Agreement by Developer for nonpayment shall not relieve Customer from any payment obligation under this Agreement.


ARTICLE IV: INTELLECTUAL PROPERTY

Section 4.01 – Ownership: Customer hereby agrees that the Software and all documentation, technology, software all materials incidental thereto (the "Property") developed or provided under this Agreement shall be the sole and exclusive property of Developer, and that Developer shall own all of the rights, titles, and interest to such Property, including (but not limited to) any and all patents, copyrights, and trade secrets in connection therewith. The Property shall not be deemed a "work made for hire" under the U.S. Copyright Act, 17 U.S.C. §101, et seq. Customer hereby assigns, transfers, and conveys to Developer any and all rights, title, and interest that Customer may have or accrue in the Property including (but not limited to) any and all patents, copyrights, and trade secrets in connection therewith. Customer agrees that Developer may maintain on the Software an internet link to the Developer.

Section 4.02 – Confidential Information: The term "Confidential Information" shall mean all information disclosed by the Developer to the Customer or that comes into the possession or knowledge of the Customer and that is not: (i) already known to the Customer; (ii) in the public domain; or (iii) conveyed to the Customer by a third party who is not subject to restrictions to the disclosure or use of such information. For purposes of this definition, all information concerning this Agreement and the Property shall be Confidential Information. The Customer shall maintain such Confidential Information in strict confidence shall not disclose it except to Customer’s authorized personnel. Customer hereby acknowledges and agrees that the Confidential Information derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts by Developer under the circumstances to maintain its secrecy; and is a trade secret as defined under applicable state statutes. Customer shall not reverse engineer the Software, shall not allow the Software to be reversed engineered, and shall not provide access to the Property to any competitor to the Developer.

Section 4.03 – Cooperation: Customer shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets of Developer. Customer shall cooperate with Developer and provide Developer reasonable assistance in securing, maintaining, and enforcing any rights, title, and interests of Developer in and to the Property and the Confidential Information.

Section 4.04 – Non-compete: Customer hereby acknowledges and agrees that Customer will receive Confidential Information and trade secrets of Developer during the Term. Customer acknowledges that Developer has a legitimate business interest in placing reasonable limits on the use of such information. Accordingly, during the Term and for a two-year period following the Term, Customer shall not:

(1) engage in any activities (directly or indirectly) in competition with Developer; or

(2) induce or solicit (directly or indirectly) engage the services of any associate of the Developer or induce an associate of the Developer to leave the employment of Developer; or

(3) use the Property or Confidential Information (directly or indirectly) to develop, promote, advertise, market, or provide any software similar to or competitive with the Developer.

Section 4.05 – Continuation: The terms and provisions of this Article IV shall survive termination and cancellation of this Agreement.


ARTICLE V: WARRANTY

Section 5.01 – Service Warranty: The Software and related services provided by Developer hereunder shall be provided in a timely and professional manner by qualified software support personnel familiar with the Software and shall conform to the standards generally observed in the industry for similar services at the time such services are rendered. Customer’s sole remedy in the event of a breach of this Section 5.01 shall be re-performance of the services. Customer hereby acknowledges and agrees that Developer (including officers, employees, agents, directors and independent contractors of Developer) has not made or granted any express warranties concerning the Software and related services except the warranties set forth in this Section 5.01.

SECTION 5.02 – WARRANTY LIMITATION: THE SERVICE WARRANTY IN SECTION 5.01 IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY. DEVELOPER HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES, ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY.

Section 5.03– Indemnification: Customer shall defend, indemnify and hold Developer and its officers, directors, employees, and agents harmless from and against any and all claims, actions, liability, expenses, costs, or losses arising from (i) Customer’s improper use of the Software; (ii) Customer’s combination, interface, operation or use of the Software with third party products; (iii) misuse of the Software by End-Users; (iv) the acts (or any failure to act) of Customer hereunder; and (v) any breach by Customer of its obligations hereunder. This Section 5.03 shall survive termination and cancellation of this Agreement.

Section 5.04 – Limitation of Damages: Developer shall not be liable to Customer under this Agreement or in connection with the Property for any lost profits, consequential, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, including negligence, and regardless of whether Developer has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding any provision to the contrary, the liability of Developer for any reason and for any cause of action whatsoever in connection with this Agreement and the Property shall be limited to the amount of money received by Developer from Customer under this Agreement. This Section 5.04 shall survive termination and cancellation of this Agreement.

Section 5.05 – Force Majeure: Developer shall not be liable for any failure to perform its obligations under this Agreement because of circumstances beyond the reasonable control of Developer, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any government or governmental authority, declarations of government, transportation delays, power failure, computer failure, telecommunications failure, and any other events reasonably beyond the control of Developer.


ARTICLE VI: MISCELLANEOUS

Section 6.01 – Public Announcements: All public announcements of the relationship of Developer and Customer under this Agreement shall be subject to the prior written approval of Developer; provided, however that Developer may list Customer as a customer of the Developer and/or user of the Software in Developer’s marketing materials, press releases, and other public documents. Customer also agrees that it shall work in good faith with the Developer to document its overall experience, satisfaction, and use of the Software in a press release to be issued by the Developer. Such press release shall be issued within six (6) months of the execution of this Agreement, shall be mutually agreeable to the Developer and the Customer, and shall include quotes from the Customer and the Developer.

Section 6.02– Entire Agreement: Excepting the Customer Purchase Order and any Work Order, this Agreement contains the entire understanding of the parties concerning the subject matter hereof and supersedes previous verbal and written communications, proposals and agreements between the parties concerning the subject matter hereof. In the event of a conflict between the Customer Purchase Order or a Work Order and this Agreement, the terms and conditions of this Agreement shall prevail, except as explicitly provided otherwise under such Customer Purchase Order or Work Order. If a provision of this Agreement is rendered invalid, void or unlawful, the remaining provisions shall remain in full force and effect.

Section 6.03 – Amendments and Modifications: This Agreement may be modified and updated by Developer from time to time, and shall be binding upon 30 days written notice to Customer of such modification or amendment.

Section 6.04 – Miscellaneous: The headings and captions of this Agreement are inserted for reference convenience and do not define, limit or describe the scope or intent of this Agreement, or any particular section, paragraph, or provision. This Agreement may be executed in multiple counterparts, each of which shall be an original, but which together shall constitute one and the same instrument. All assignments of rights under this Agreement by Customer without the prior written consent of Developer shall be void. This Agreement shall be governed by the laws of the State of California without regard to any rules of conflict or choice of laws, which require the application of laws of another jurisdiction, and venue shall be Los Angeles, California. Pronouns and nouns shall refer to the masculine, feminine, neuter, singular or plural, as the context shall require. Waiver of breach of this Agreement shall not constitute waiver of another breach. Failing to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity. Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of Arbitration Rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties in accordance with the Arbitration Rules of Arbitration Rules of the American Arbitration Association. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to the other party under this Agreement are true, correct and accurate to the best of their knowledge. In the event of litigation or arbitration arising out of this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).

Section 6.05 – Notice: Notices shall be in writing. Notices shall be deemed delivered when delivered by Certified or Registered Mail – Return Receipt Requested, by commercial express delivery service or by hand to the address set forth below for Developer or to the address set forth on the signature page of this Agreement for Customer. Notice shall be deemed given on the date of receipt - as evidenced in the case of Certified or Registered Mail by Return Receipt and in the case of commercial express delivery by electronic or written delivery confirmation.

Developer Address:
Marutek, Inc.
7510 Sunset Blvd, Unit #556
Los Angeles, California 90046


Last updated June 28, 2005