In consideration of the following formally agreements you (Client) and BizConnectors Digital Commerce Solution (BCDC) hereby agree as follows: 1. BCDC Product. Subject to the terms and conditions described herein, BCDC shall provide to Client a web-based electronic commerce application (the "Product") that will permit Client to display and sell products online. Nevertheless BCDC's right to make upgrades and changes to the Solution at its sole discretion, Client agrees to accept the Product "as is", and no section of this Agreement shall be contingent upon any upgrade or change to the Product. All software and hardware comprising the Product shall be provided by BCDC at a location of its choice. The Product is deemed created on the date this Agreement is accepted by Client. 2. Pricing. In exchange for provision of the Product (and subject to the terms of Section 11), Client agrees to pay to BCDC the following on time Setup Fee: Setup Fee: $498.89 The Setup Fee includes Product creation and an optional store/web site synchronization service (the option belonging to Client). The Setup Fee is payable immediately upon Product creation by BCDC, is not contingent upon Client's utilization of the Product or on BCDC's provision of the store/web site synchronization service, and is non-refundable. BCDC reserves the right to withhold the store/web site synchronization service until Client has remitted payment for said Setup Fee. Additionally, Client agrees to pay BCDC a monthly fee based on its Net Monthly Sales as shown below: $0-$5,000 $149.89 $5,000-$10,000 2.9% $10,000-$50,000 2.3% $50,000-$100,000 1.7% $100,000-$250,000 1.0% $250,000-$500,000 0.7% over $500,000 --- 0.4% As an example, if Net Monthly Sales = $23,000, the BCDC fee is $149.89 + (5,000* 2.9%) + (13,000 * 2.3%) = $149.89 + $145.00 + $299.00=$593.89. Net Monthly Sales is defined as all sales proceeds, not including sales tax and shipping and handling costs, received by Client from consumers or other purchasers in a given calendar month from sales by Client of its merchandise through transactions initiated through the Product. A "sale" is deemed completed when the merchandise is shipped to, delivered to, or otherwise received by the consumer or purchaser. BCDC reserves the right to include in Net Monthly Sales all orders that remain outstanding (i.e. not shipped to, delivered to, or otherwise received by the consumer or purchaser) more than 60 days past the date on which the order was placed. As shown in the table above, should Net Monthly Sales fall below $5,000.00, a $149.89 monthly minimum fee shall be charged. However, said minimum fee shall not be enforced for the first 30 days of use of the Product. Net Monthly Sales does not include sales generated through other means (i.e. telephone or facsimile sales) where Client merely utilizes the Product to record and track such orders ("Telephone Orders"). Client shall pay no fees on orders captured without use of the Product, and is not required to report such orders to BCDC. All merchandise returned by consumers or other purchasers after such merchandise has been shipped is the sole responsibility of Client and no credit is given for fees previously earned by BCDC on such sales. 3. Payment Terms. Client may elect to pay via automated credit card payment or by check. Should Client elect to pay by check, BCDC shall mail paper invoices to Client. Should Client elect automated credit card payment, Client's credit card shall be charged immediately upon the creation of any invoice, which shall be sent via electronic mail to an address provided by Client. Should Client be located outside of the United States, Client shall not have the aforementioned payment option and shall be required to choose automated credit card payment. With respect to the Setup Fee described in Section 2, BCDC shall issue an invoice to Client within two (2) business days of the sign up date, and the invoice shall be due and payable within fifteen (15) days of the sign up date. The product creation will not start until the set up fee is fully received by BCDC. With respect to all other fees, BCDC shall issue an invoice to Client by the second business day of each month, and the invoice shall be due and payable by the final day of the month. Should Client elect to pay by check, each such invoice shall include a $10 invoicing fee. In addition to the application of the provisions contained in Section 11, all such invoices remaining unpaid past the due date shall bear interest at the rate of 1.5% per month, accruing from the date the invoice is issued. In the event that Client elects automated credit card payment and BCDC is unable to bill the credit card provided for the amount due of a given invoice (i.e. the credit card is declined), BCDC shall notify Client via electronic mail. Should Client fail to rectify the problem in a timely manner, BCDC reserves the right to override Client's election of automated credit card payment, and Client shall pay by check, subject to the terms outlined in this Section. 4. Term of Agreement. Nevertheless the provisions of Sections 11 and 14, this Agreement shall continue indefinitely until it is terminated by either or both parties. This Agreement may be terminated, without cause, at any time by BCDC upon sixty (60) days' written notice to Client. Client may terminate this Agreement at any time by executing BCDC's Account Termination Agreement, to be provided by BCDC to Client upon request. Nevertheless the termination of this Agreement by either party, all fees earned by BCDC pursuant to this Agreement shall remain due and payable by Client through the date of termination. 5. Client Records Retention. At its sole option, BCDC shall be permitted to purge or otherwise destroy any Client order information that is more than two (2) years old (measured from the date each such order was placed). Should Client desire BCDC to retain its order information for a longer duration, separate arrangement must be made and additional charges may apply. BCDC shall provide Client with notice should it decide to purge client order information. 6. Support. BCDC has designed the Product to require minimal support of Client personnel to operate, maintain, and modify the Product. Should Client personnel require assistance in regards to the Product, they may pose such questions via the electronic mail or by calling an BCDC representative for telephone support. 7. Proprietary Intellectual Property. Client acknowledges and agrees that all of the ideas, specifications, design, and source code (the "Proprietary Intellectual Property") utilized by BCDC in providing the Product to Client belongs solely and exclusively to BCDC. The Proprietary Intellectual Property includes, but is not limited to, the database model, structure and relations, the HTML, ASP, and JavaScript source code, including computer code implemented in other languages, and the interfaces between each of the modules contained in the Product. 8. Security of Transactions. BCDC has made a substantial effort (and will continue to make such efforts) to provide Client with a Product that will maintain Client's data integrity and privacy as well as the privacy and other rights of Client's consumers and other purchasers by, among other things, using Secure Socket Layer technology. Client acknowledges that conducting business on the internet through use of the Product poses certain security risks, known and unknown, that are beyond the control of BCDC. Client acknowledges and agrees to hold BCDC harmless from and against any and all liability occasioned by the criminal or other tortuous actions of third parties against Client, BCDC, the Product, or the data maintained by the Product. 9. Client Representations: Client warrants, at all times during the performance of this Agreement, that: a. Client is solely responsible for the content of the merchandise catalog, customer list, and order information, including any input errors in introducing any data to the Product; b. All merchandise sold by using the Product is the legal property of Client, does not infringe upon the intellectual property or other rights of any third party, and is legal to sell to each customer and in each jurisdiction in which such merchandise is sold or delivered; c. Client is solely responsible for determining the applicability of state and local sales taxes, tariffs, and import/export fees to each sales transaction; and d. Client will, at all times, accurately track the status of all orders with the Product, and mark as shipped all merchandise actually shipped to, delivered to, or otherwise received by a purchaser within two (2) business days of the date of shipment, delivery, or receipt (whichever is earlier). 10. Limitation of Liability. BCDC has made a substantial effort (and will continue to make such efforts) to provide a stable, functioning Product for use by Client. Despite BCDC's efforts, certain disruptions in the provision of the Product to Client may occur due to third party acts, hardware or software failure, or acts of God. Client agrees to indemnify and save/hold BCDC harmless from and against any and all losses, damages, costs, claims, attorney fees and liabilities of whatever nature, and specifically including lost profits, resulting from or arising out of or in connection with the performance or nonperformance of any obligation of BCDC, including the Product. It is understood that this indemnity provision will apply even if such indemnified claims were caused in whole or in part by any act, omission, negligence, or product defect (arising from negligence) of any type occasioned by BCDC or any third party. It is the intention of Client and BCDC that this indemnity shall survive the execution of this Agreement and shall not require payment as condition precedent to recovery. 11. Default. An Event of Default is defined as the occurrence of one or more of the following: (a) Client fails to pay the Setup Fee described in Section 2 within thirty (30) days of the due date, (b) Client fails to pay any other fee due BCDC within sixty (60) days of the due date, (c) Client breaches the terms and/or conditions of the Agreement, (d) it is determined by BCDC or Client that the person who accepted the agreement on behalf of Client was not authorized to do so as outlined in Section 17, or (e) Client becomes a debtor in a bankruptcy proceeding or has all or substantially all of its assets seized by creditors. Should an Event of Default occur, BCDC, at its sole option, may immediately terminate this Agreement, with cause, and may opt to turn Client debt over to a collection agency if permitted by law. BCDC reserves the right to limit Client's access to the Product or take other reasonable measures to collect payment should any fee due BCDC remain unpaid past the due date, even if an Event of Default has not occurred. 12. Enforcement of Agreement. This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to its conflict of law principles. Should either party hereto, or any heir, personal representative or assign of either party hereto, resort to legal proceedings in connection with either this Agreement or in any other manner concerning BCDC's relationship with Client, the party prevailing in such legal proceedings shall be entitled, in addition to such other relief as may be granted, to recover its reasonable attorney's fees and costs. Additionally, Jurisdiction and venue shall be solely in the State or Federal Courts situated in the Courts of Los Angeles County or the Southern District of California. By this Agreement, Client expressly consents to personal jurisdiction in said courts. 13. Entire Agreement. Nevertheless the provisions of Section 14, this Agreement contains the entire agreement and understanding between the parties hereto and supersedes any prior or contemporaneous written or oral agreements, representations and warranties between them respecting the subject matter hereof. If any terms, provisions, covenants or conditions of this Agreement, or the application thereof to any person, place or circumstance, shall be deemed to be invalid, unenforceable or void, the remainder of this Agreement and such terms, provisions, covenants or conditions as applied to other persons, places and circumstances shall remain in full force and effect. 14. Amendments. BCDC retains the sole right to issue Amendments to this Agreement upon thirty (30) days' written notice to Client. Such Amendments shall become part of this Agreement, in full force and effect upon expiration of the thirty (30) day notice period. 15. Confidential Information. BCDC hereby acknowledges that it may receive confidential or proprietary information of Client, including, without limitation, information relating to Consumers, sales, pricing, advertising, business information (sales and marketing research, materials, plans and the like) and other information obtained from or relating to Client or Consumers ("Confidential Information"). Confidential Information does not, however, include: (i) information already known or independently developed by BCDC; (ii) information in the public domain through no wrongful act of BCDC; or (iii) information received by BCDC from a third party other than Client who was free to disclose such information. BCDC hereby agrees that during the term of this Agreement and at all times thereafter it shall maintain such Confidential information in confidence and shall not use, commercialize, publish, transfer, report or disclose such Confidential Information to any person or entity, except to its own employees having a "need to know" (and who are themselves bound by similar nondisclosure restrictions), and to such other recipients as Client may approve in writing; provided that all such other recipients shall have first executed a confidentiality Agreement in a form acceptable to Client. BCDC shall use at least the same degree of care in safeguarding Client's Confidential Information as it uses in safeguarding its own confidential information. 16. Spamming: BCDC has designed the Product to provide various means for Client to send electronic mail messages. Client warrants, at all times, that it will not utilize Product to engage in abusive tactics or unethical behavior with regard to electronic mail ("Spamming"), including, but not limited to, the following types of conduct: a. transmitting data in any manner that violates a State or Federal law, rule, or regulation against Spamming or other prohibited communications, regardless of how such law defines Spamming or other such prohibited activity; b. sending electronic mail messages that threaten harm to person or property, or which result in harassment of the recipient; c. sending electronic mail messages to recipients who did not voluntarily provide an electronic mail address to Client; d. falsifying or forging electronic mail header information. 17. Authorized Representative. The person accepting this agreement attests that he or she is authorized to do so, on behalf of Client. Should it be determined that he/she has accepted the agreement without authorization, he/she shall be personally liable for any and all outstanding fees detailed in Section 2, and such determination shall be considered an Event of Default as defined in Section 11.
.gif)