Exhibit 10.36
Website Development and Service Agreement
SERVICE AGREEMENT the (Agreement) made as of the 1st day of March, 2005 (the
Effective Date) by and between Brooklyn Cheesecake & Desserts Company, Inc. a
corporation organized and operating under the laws of New York and having
offices at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Client") and
Burbro Capital, Inc, a corporation organized and operating under the laws of New
York and having offices at ▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
WHEREAS, Consultants are in the business of providing certain software and
computer consulting services pertaining to the international network of
computers and computer networks known by the name Internet; and
WHEREAS, Client wishes to retain the services of Consultants to: (i) locate,
establish, install and maintain computer hardware and software to provide Client
with a system to provide information via the World Wide Web protocol of the
Internet (the "World Wide Web"), and allow Internet users to make transactions
(the "Web and Database Server"); (ii) assist Client with Client's development
and operation of a content server to make Client-related multimedia information
accessible via the World Wide Web to Internet users (the "Client Server") (the
Client's presence on the World Wide Web under this Agreement by the Web and
Database Server and the Client Server referred to herein as the "Site"); (iii)
promote the Site; (iv) develop and improve computer programs and other
deliverables to be used in connection with the Site; and (v) consult with Client
with respect to the ultimate transfer of all hardware and software components of
the Web and Database Server to Client's location and facilities.
WHEREAS, Consultants wish to provide Client with such services;
NOW, THEREFORE, in consideration of the conditions and covenants set forth
hereinafter, it is agreed as follows:
1. Retention
Client hereby retains Consultants and Consultants hereby accept such retention
by the Client.
2. Services
Upon the terms and subject to the conditions contained herein, Consultants agree
to provide to Client consulting services as described in statements of work to
be agreed to in writing between the parties from time to time during the term
hereof (the "Statements of Work") and which shall be consecutively numbered and
annexed hereto as Schedule A. Such services shall be provided in accordance with
the provisions of this Agreement and the applicable Statement of Work.
3. Additional Services
In addition to the services described in this agreement, Consultants shall
perform the following additional services in accordance with the timetable set
forth as Schedule B (the "Timetable"):
3.1. Configuration and Operation of Web and Database Server
Consultants will configure and operate the Web and Database Server at an agreed
upon fully-qualified hosting center as outlined in Schedule C. Consultants and
authorized third parties will have access to the Web and Database Server. No
third-party will have access to the Web and Database Server. Without limitation
of the foregoing, to the extent that any third party software licenses are
required to be obtained by Consultants to perform their obligations hereunder,
Consultants shall obtain such licenses on Client's behalf at no additional cost.
-1-
3.2. Removed
3.3. Removed
3.4. Translations into HTML OR EQUIVALENT Format
Provide consulting services to Client and translate Client-supplied text,
graphics and other materials into Hypertext Markup Language (HTML OR EQUIVALENT)
format for use on the Site (such materials, as periodically updated by Client as
part of the Client Server, shall be known as the "Internet Display"). Additional
obligations of the parties with respect to the development of the Internet
Display are further set forth below in Section 4.
3.5. Site Related Programs and Other Deliverables
Develop, in accordance With Section 5 herein, the Site Related Programs and
other Deliverables (as defined herein).
3.6. Site Related Software Developed by Client
Copy, reformat, improve, review or advise on Site related software developed by
the Client, as requested by Client and as set forth in any Statement of Work.
3.7. Software Scripting Routines
In accordance with the Timetable, develop software scripting routines as set
forth in Schedules A and B, Consultants will generate HTML OR EQUIVALENT to make
Client's catalog information of retail merchandise appear on the Web and
Database Server as specified herein (the catalog, together with the software
routines and underlying database is referred to herein as (the "Catalog") and
install, configure and customize the Web and Database Server to enable and track
purchases from the Catalog.
3.8. Recordkeeping
Manage the recordation of all information made available from people accessing
the Site, or purchasing items from the Catalog, including, without limitation
name, address, credit card numbers, products requested and any other information
directly or indirectly obtained from such users (collectively, "User
Information").
3.9. Removed
3.10 Return of Merchandise.
Consultants shall have no liability or obligations in connection with
merchandise acquired by credit card which is subsequently returned to Client by
customer(s) or for the credit of Client's customers, unless such return is
caused by fraud on the part of Consultants or Consultants' gross negligence.
3.11. Removed
3.12. Training
Provide such training, advice and information concerning the use and features of
the Site as Client shall reasonably request.
-2-
4. Development of the Internet Display
Consultants shall develop the Internet Display for use on the Client Server.
Upon the provision by Client to Consultants of text, graphics or other
information (collectively, "Content") for use in the Internet Display,
Consultant shall promptly adapt, translate and reformat the Content as necessary
into HTML OR EQUIVALENT format. Client shall make the final determination of all
Content to be used on the Internet Display. All photographs, trademarks, images
or other works owned or controlled by Client and which are specified by Client
for inclusion in the Internet Display shall be provided by Client in clear and
camera ready form necessary for digital translation, or in other format agreed
upon by the parties. The completed version of the Internet Display shall be
provided to Client for acceptance in accordance with the Timetable set forth in
Schedule B.
5. Statements of Work.
5.1. Site Related Programs
As used in this Agreement, the term "Site Related Programs" shall mean the
software deliverables (other than the Internet Display) to be produced by
Consultants hereunder.
5.2. Milestone Schedule
As used in this Agreement, the term "Milestone Schedule" shall mean the schedule
for the development of Site Related Programs as set forth as part of the
relevant Statement of Work.
5.3. Specifications
As used in this Agreement, the term "Specifications" shall mean the requirements
for the development of a Site Related Program or other deliverable, including
operational and functional capabilities and performance, all as set forth as
part of the relevant Statement of Work.
5.4. Information to be Included in the Statement of Work
The Statement of Work shall include the Specifications, Milestone Schedule, and
any other information that may reasonably and customarily be included to provide
the services desired by Client All work hereunder, shall be compensated pursuant
to Schedule D. Consultants shall prepare a Statement of Work in good faith.
Consultants shall not be required to commence work until both parties have
agreed in writing to the Statement of Work. The performance of the services
required in the Statement of Work shall be completed in accordance with the time
frame set forth in the Statement of Work.
6. Delivery and Acceptance of Deliverables
As used in this Agreement, the term "Deliverable" shall mean any product
produced by Consultant hereunder in connection with the Internet Display or any
Statement of Work.
6.1. Time and Manner of Delivery
Consultant shall deliver each Deliverable at the times and in the manner
specified therefore under this Agreement, including any relevant Statement of
Work.
-3-
6.2. Procedure for Acceptance
The procedure for acceptance of any Deliverable shall be as follows:
(1) Client shall have thirty (30) days to inspect and test each such Deliverable
when received to determine if it conforms to the Specifications.
(2) If any Deliverables fails to conform to its Specifications, Client shall
give Consultants written notice of the failure stating the defect in the
Deliverables. Consultant shall then have thirty (30) days to remedy such failure
and redeliver such Deliverable to Client. After resubmission, Client shall again
inspect the Deliverable to confirm that it conforms to the Specifications. If
the resubmitted Deliverable again fails Client's acceptance testing, Client may,
in its sole discretion accept the Deliverable as a non-conforming Deliverable.
If Client elects to accept the Deliverable as a non-conforming Deliverable,
Client may in its sole discretion either: (i) withhold a mutually agreed upon
offset from the development fees payable to Consultants for the Deliverable or
(ii) invoice and recover from Consultants the amount of Client's reasonable
out-of-pocket costs to correct, modify, and/or complete the Deliverable in
accordance with the Specifications.
(3) Each Deliverable shall be deemed to be accepted unless notice is provided by
Client in accord with Section 6.2 (2).
(4) Except in instances of Force Majeure or in the case of an extension pursuant
to Sections 5.4 or 6.2 herein, a failure by Consultant to provide Deliverables
to Client within the agreed upon time period shall be a breach under this
Agreement.
7. Confidentiality
7.1. Confidential Information
"Confidential Information" shall mean any information relating to or disclosed
in the course of the Agreement, which is marked as "confidential" or
"proprietary" by the disclosing party. Confidential Information shall not
include any information, which is or becomes generally available to the public
without breach of this Agreement; is in the possession of a party prior to its
disclosure by the other party; or becomes available from a third party not in
breach of any obligations of confidentiality to the disclosing party.
7.2. Prohibition on Disclosure
Each party acknowledges that it will receive Confidential Information of the
other party relating to its technical, marketing, product and/or business
affairs. All Confidential Information of the other party shall be held in strict
confidence and shall not be disclosed or used without express written consent of
the other party, except as may be required by law. Each party shall use
reasonable measures and reasonable efforts to provide protection for
Confidential Information, including measures at least as strict as those, such
party uses to protect its own Confidential Information.
7.3. Confidentiality of User Information
Without limitation of the foregoing, Consultants acknowledge and agree that the
User Information shall be deemed to be Confidential Information of the Client,
and that Consultant not use User Information for any purpose other than that of
fulfilling Consultants' obligations under this Agreement. Neither Consultants
nor any third party on behalf of Consultants, shall have the right, directly or
indirectly, to use, exploit, disclose, transmit, sell, assign, lease or
otherwise convey or make available for access by third parties, any User
Information.
-4-
7.4. Confidentiality of Agreement
Except as required by applicable securities laws, neither Client nor Consultants
shall make any announcement or other disclosure to any third party of the
transactions contemplated by this Agreement without the prior approval of the
other party. All requests by Consultants to Client in this regard shall be
directed to the attention of Chief Executive Officer of Client.
8. No Employment
During the term of this Agreement, Client shall not solicit for employment any
agent acting on behalf of Consultants without Consultants prior written consent.
9. Development Credit
Client shall acknowledge Consultants as the site developers of the Site in text
in an "acknowledgments page" of the Internet Display.
10. Intellectual Property
10.1. Ownership and Licensing of Consultants Materials
All techniques, algorithms and methods or rights thereto owned by Consultants at
the time this Agreement is executed and employed by Consultants in connection
with the Site Related Programs (the "Consultants Materials") shall be and remain
the property of Consultants unless they are in the public domain. Consultants
grant to Client a perpetual, irrevocable, royalty free, unrestricted right to
use, modify, transfer and maintain Consultants Materials.
10.2. Ownership of Program Codes
Unless otherwise specified in a Statement of Work, and except for the
Consultants Materials, all Deliverables and other materials, products,
modifications developed or prepared for Client by Consultants under this
Agreement (including any Statement of Work) including without limitation program
images and text viewable on the Internet, any HTML OR EQUIVALENT Code relating
thereto, or any program code created at the request of Client, is the property
of Client and all title and interest therein shall vest in Client and shall be
deemed to be a "work made for hire" and made in the course of the services
rendered hereunder. To the extent that title to any such works may not, by
operation of law, vest in Client or such works may not be considered works made
for hire, all right, title and interest therein are hereby irrevocably assigned
to Client. All such materials shall belong exclusively to Client with Client
having the right to obtain and to hold in its own name, copyrights,
registrations or such other protection as may be appropriate to the subject
matter, and any extensions and renewals thereof. Consultant agrees to give
Client and any person designated by Client, any reasonable assistance required
to perfect the rights defined in this Section.
10.3. Site Related Programs
Client and Consultants recognize that Site Related Programs may contain code
created during the development of such Site Related Program. Notwithstanding any
other provisions of this Agreement, Consultants shall retain a royalty-free
license to utilize any other code developed by it hereunder.
-5-
10.4. Property of Client
Nothing herein shall be construed to grant any right or license to Consultants
in or to any Content or other material provided to Consultants hereunder by
Client, other than the right to use such material solely on behalf of Client in
accordance with the terms hereto. All of the foregoing materials, including
without limitation any and all copyrights, trademarks or trade names, are and
shall remain the property of Client.
11. Warranties
11.1. Consultants Warranties
Consultants represent and warrant that:
(a) all of the services to be performed hereunder will be rendered using sound,
professional practices and in a competent and professional manner by
knowledgeable, trained and qualified personnel;
(b) the Deliverables will operate in conformance with the relevant terms of this
Agreement, including without limitation, the Statements of Work;
(c) Consultants are the owner of or otherwise have the right to use and
distribute all materials and methodologies used in connection with providing the
Deliverables;
(d) Consultants will comply with all applicable federal, state and local laws in
the performance of obligations hereunder; the Deliverables are and will be free
of any software disabling devices or internal controls, including, without
limitation, time bombs, viruses, or devices of similar nature;
(f) the Deliverables (other than information or materials supplied by Client and
reproduced accurately in the Deliverables) shall not infringe upon any third
party copyright, patent, trade secret or other proprietary right; and
(g) the Web and Database Server shall be maintained and kept up-to-date to
utilize current developments in Internet-related technology within a reasonable
time after such technology becomes generally commercially available.
11.2. Client Warranties
Client represents and warrants that:
(a) the use, as contemplated by this Agreement, of the material supplied by
Client hereunder shall not infringe any copyright, trademark, trade secret or
other third party proprietary right; and
(b) there is no impediment to Client's performance of its obligations hereunder.
11.3. Removed
12. Indemnification
-6-
12.1. Consultant Indemnification
Consultants agree to indemnify and hold harmless Client, its directors,
officers, employees and agents, and defend any action brought against same with
respect to any claim, demand, cause of action, debt or liability, including
reasonable attorneys' fees, to the extent that it is based upon a claim that:
(i) if true, would constitute a breach of any of Consultants' representations,
warranties, or agreements hereunder; (ii) arises out of the negligence or
willful misconduct of Consultants; or (iii) any of the Consultants Materials,
Deliverables or services to be provided by Consultants hereunder infringes or
violates any patents, copyrights, trade secrets, licenses, or other property
rights of any third party.
12.2. Client Indemnification
Client agrees to indemnify and hold harmless Consultants and defend any action
brought against same with respect to any claim, demand, cause of action, debt or
liability, including reasonable attorneys' fees, to the extent that it is based
upon a claim that: (i) if true, would constitute a breach of any of Client's
representations, warranties, or agreements hereunder; (ii) arises out of the
negligence or willful misconduct of Client; or (iii) any of the Content provided
by Client hereunder and used by Consultants as contemplated in this Agreement
infringes or violates any patents, copyrights, trade secrets, licenses, or other
property rights of any third party.
12.3. Notice of Claim
In claiming any indemnification hereunder, the indemnified party shall promptly
provide the indemnifying party with written notice of any claim which the
indemnified party believes falls within the scope of the foregoing paragraphs.
The indemnified party may, at its own expense, assist in the defense if it so
chooses, provided that the indemnifying party shall control such defense and all
negotiations relative to the settlement of any such claim and further provided
that any settlement intended to bind the indemnified party shall not be final
without the indemnified party's written consent, which shall not be unreasonably
withheld.
12.4. Survival of Indemnification Obligation
Each party's indemnification obligations shall survive any termination of this
Agreement.
13. Support for Defects and Warranties
During the term of this Agreement, Consultants agree that at no extra cost to
Client: (a) to the extent that any Deliverable or service provided by
Consultants shall fail to fulfill any warranty therefore, Consultants shall,
upon written notice by Client of such failure, use its best efforts to promptly
remedy such failure; and (b) Consultants shall promptly deliver to Client all
software containing bug fixes or error corrections to any software or other
Deliverable provided hereunder to Client, including without limitation the
Internet Display, the Catalog and Site Related program, at no additional cost to
Client. In connection with such maintenance, Client shall provide Consultants
with such information as Consultants reasonably requires in a reasonable time to
allow Consultants to provide such maintenance. Consultants shall have no
responsibility for the maintenance of any third party software or hardware,
other than as provided for herein or pursuant to any agreement entered into by
Consultants pursuant to the terms of this Agreement.
14. Limitation of Liability
14.1. Limit on Circumstances
Except for the indemnification obligations set forth herein, neither party
hereto will not be liable for lost profits, lost opportunities, or indirect,
incidental or consequential damages under any circumstances.
-7-
14.2. Limit on Amount
Except for the indemnification obligations set forth herein, Consultants'
liability to client for any and all other matters related to this agreement
shall not exceed $25,000. Except for the indemnification obligations set forth
herein, Client's liability to Consultant for any and all matters related to this
agreement shall not exceed $25,000. Except for the specific performance of
delivery of payment schedule as set forth in Schedule D.
14.3. Disclaimer
Except as expressly provided for in this agreement, all warranties express or
implied, including implied warranties of merchantability, fitness for a
particular purpose and non-infringement, are disclaimed.
15. Compensation
15.1. Initial Display Date
As used herein, "Initial Display Date" shall mean the date upon which Client's
Internet Display can be accessed by users of the Internet in accordance with the
terms and conditions of this Agreement. The "Catalog Display Date" shall mean
the date upon which the Catalog may be accessed, and purchases may be made from
the Catalog, by users of the Internet in accordance with the terms and
conditions of this Agreement.
15.2. Initial Fee
Client shall pay Consultants all fees associated with this Agreement in
accordance with the amount and payment schedule as set forth in Schedule D,
attached.
15.3. Non-Exclusivity of Agreement
Nothing herein shall be construed to preclude Client from distributing
mail-order catalogs, selling any merchandise (whether or not appearing in the
Catalog), or selling products or services on any other World Wide Web Site.
16. Term
This Agreement shall commence as of the Effective Date and shall continue until
delivery and acceptance of site as noted in Section 13.
17. Termination
17.1. Consultants Termination
Consultants may terminate this Agreement: (i) upon filing of any voluntary
petition by the Client or upon the filing of any involuntary petition against
the Client under the Bankruptcy Code that is not dismissed within thirty (30)
days after filing, or upon any appointment of a receiver for all or any portion
of Client's business or operations, or any assignment of all or substantially
all the assets of Client for the benefit of creditors; or (ii) upon Client's
material breach of this Agreement, if Client fails to cure such default within
thirty (30) days after receipt of notice specifying the default in reasonable
detail; or (iii) pursuant to the terms of Section 20.1.
-8-
17.2. Client Termination
Client may terminate this Agreement: (i) upon filing of any voluntary petition
by Consultants or upon the filing of any involuntary petition against
Consultants under the Bankruptcy Code that is not dismissed within thirty (30)
days after filing, or upon any appointment of a receiver for all or any portion
of Consultants' business or operations, or any assignment of all or
substantially all the assets of Consultants for the benefit of creditors; (ii)
upon Consultants' material breach of this Agreement, if Consultants fail to cure
such default within thirty (30) days after receipt of notice specifying the
default in reasonable detail; (iii) upon Client's written request to terminate
the Site, which shall be given no less than thirty (30) days prior to the
effective date of such termination; or (iv) pursuant to the terms of Section
20.1.
17.3. Rights after Termination
In the event of a termination of this Agreement: (i) the provisions of Sections
7, 10, 11, 12, 14, 17, 18, 19, and 20 shall survive the termination of this
Agreement; (ii) each party shall return all copies of Confidential Information
and all other property belonging to and/or received from the other party.
Consultant agrees that upon the termination of this Agreement for any reason, or
at anytime during the Term as requested by Client, Consultants shall return (or,
at Client's request, destroy) all records of User Information in the possession
or control of Consultants; and (iii) except as otherwise stated herein, each
party may pursue claims it has against the other for any breach of the terms of
this Agreement.
18. Publicity
Consultants agree that they will not, without the written consent of Client in
each instance: (i) use in advertising, publicity or otherwise (including without
limitation on the Internet) the name of Client, Client's domain name, any
trademark, trade name, symbol or any abbreviation or contraction thereof owned
by or referring to the Client; or (ii) represent, directly or indirectly, that
any product or service offered by Consultants has been approved by or endorsed
by Client.
19. Removed
20. General Provisions
20.1. Force Majeure
Nether party shall be deemed in default of this Agreement to the extent that
performance of its obligations or attempts to cure any breach are delayed or
prevented by reason of any act of God, fire, natural disaster, accident, act of
government, or any other cause beyond the control of such party (Force Majeure)
provided that such party gives the other party written notice thereof promptly
and, in any event, within fifteen (15) days of discovery thereof and uses its
best efforts to cure the delay. In the event of such a Force Majeure, the time
for performance or cure shall be extended for a period equal to the duration of
the Force Majeure, provided however that if the Force Majeure continues for
longer than six (6) months, the party not effected by the Force Majeure may
terminate this Agreement without any liability upon written notice to the other
party.
20.2. Partial Invalidity
Should any provision of this Agreement be held to be void, invalid or
inoperative, the remaining provisions of this Agreement shall not be affected
and shall continue in effect and the invalid provision shall be deemed modified
to the least degree necessary to remedy such invalidity.
-9-
20.3. No Waiver
The failure of either party to partially or fully exercise any right or the
waiver by either party of any breach, shall not prevent a subsequent exercise of
such right or be deemed a waiver of any subsequent breach of the same or any
other term of this Agreement.
20.4. Independent Contractor
Consultants are acting, in performance of this Agreement, as an independent
contractor. Consultants shall provide under this Agreement the services of only
those personnel who are employees of Consultants for federal tax purposes.
Consultants shall be solely responsible for the payment of compensation of
personnel assigned to perform services hereunder. Client shall not be
responsible for payment of worker's compensation, disability benefits, and
unemployment insurance or for withholding or paying employment related taxes for
any Consultant employee, but such responsibility shall be solely that of
Consultants. In the event that any federal, state or local government agency,
any court or any other applicable entity determines that the personnel provided
by Consultants or any permitted subcontractor or assignee of Consultants
hereunder are employees of Client for any purpose, Consultants agrees to
indemnify and hold Client harmless from all liabilities, costs and expenses
(including, but not limited to, attorneys' fees) associated with such
determination. Notwithstanding any other provision of this Agreement,
Consultants may only assign or subcontract work to be performed hereunder with
the express written consent of Client, and Consultants shall remain primarily
liable for all obligations hereunder. Consultants shall be responsible for all
payroll taxes.
20.5. Insurance
Consultants shall purchase and keep in force at its own cost and expense all
insurance coverages including: (a) Worker's Compensation and Employer's
Liability Insurance; (b) Commercial General Liability Insurance, including
Contractual Liability, completed operations, personal injury coverage, broad
form property damage; (c) Errors and Omission Insurance; and (d) Umbrella
coverage for (b) and (c) above.
Each and every policy and certificate shall contain an endorsement stating that
the insurance company will not, prior to the expiration or termination of this
Agreement or any policy expiration date shown on the policy and certificate,
terminate the policy or change any coverage therein without giving written
notice to Client. This notice shall be provided by certified mail to Client and
shall arrive at least fifteen (15) days prior to the termination or change.
20.6. Source Code Escrow
Consultants agrees to timely turn over to Client any Source Code so developed in
connection with the services performed or provided by Consultants or their
agents under this Agreement.
20.7. Notices
Any notice required or permitted to be sent shall be in writing and shall be
sent in a manner requiring a signed receipt such as, Federal Express or like
courier delivery, or if mailed, then mailed by registered or certified mail,
return receipt requested. Notice is effective upon receipt. Notice shall be sent
to addresses as set forth above.
Place of notice to be given by each respective party may be changed by such
party giving to the other written notice thereof as herein provided.
-10-
20.8. Assignment
Neither party shall assign any of its rights or obligations under this Agreement
to any other entity without the other party's prior written consent.
20.9. Entire Agreement
This Agreement, including the Schedules and Statements of Work thereto, sets
forth the entire agreement between the parties on this subject and supersedes
all prior negotiations, understandings and agreements between the parties
concerning the subject matter. No amendment or modification of this Agreement
shall be made except by a writing signed by both parties.
20.10. Governing Law
This Agreement shall be governed and interpreted in accordance with the laws of
the state of New York without regard to principles of conflict of laws.
20.11. Forum for Resolution of Controversy or Claim
Any controversy or claim arising out of or relating to this agreement, or the
breach thereof, shall be tried before the Supreme Court of the State of New
York, New York County or the Southern District of the United States District
Court as the case may be. All parties consent to the jurisdiction of either the
New York County Supreme Court or Southern District of New York United States
District Court.
-11-
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first above written.
Brooklyn Cheesecake & Desserts Company, Inc.
By:
----------------------------
Title:
-------------------------
Burbro Capital, Inc.
By:
----------------------------
Title:
-------------------------
-12-
Schedule A - Statement of Work
Statement of Work
Goal
To be the best online distributor of cheesecakes.
Vision
The general vision of the site is an `order' friendly site with an
emphasis on ease of use for order placement. The end goal, placing an
order, should not be hindered by any extraneous information or graphics.
As well, the site should be consistently "fresh and current"; therefore
admin capabilities for updates on a regular basis should be made
available.
Look and Feel
Presently, the BCC color scheme is black, charcoal and white. The company
would like to stay within that color scheme as they feel that the graphic
work and colors reflect more of an "attitude" rather than a "look".
Commerce Development
Order of Importance/Expectations for (by target market):
1. Individual Consumer
2. Corporate Gifting Capabilities
3. Food Service Consumers
4. Fundraising
Functional Expectations:
t 6 12 o Will feature a "cake of the month" promotion with ability to
discount if necessary
o Want to be able promote up sells (i.e. Customers who purchased x
also
liked z)
o Ability to track frequent shoppers/buyer tally's for return
customers
o Ability to discount/offer promotions
o Special messages (gifting)
o Shipping (information/contracting Pending)
o Ability to provide downloadable "catalog (PDF)
Individual Consumer product category hierarchy
The initial launch of the site should target and be capable of supporting the
purchases of the individual consumer.
Overall Category- Cakes
o 10"
o 8"
o Mini's
o Cake line
o Blackout Cake
o Brooklyn Apple Cake
o Sugar Free
-13-
Collateral/Content:
o Product Photos
o Logo
o Product Descriptions
o Order information/Black-out dates
Marketing site development needs:
o Investor Relations- necessary for SEC compliance should include
links to ▇▇▇▇▇ and other sites that provide "real-time" stock
information.
o About Us
o Board of Directors
o Product Information/Tips
o FAQ's
o Customer Service/Contact Us
Future
Corporate Gifting
This idea needs further development. One of the general ideas and "wishes"
for this system is that it be able to support an automated recurring order
process that reminds and prompts corporate clients of gifting options and
rewards them for their purchases.
Food Service
Food Service consumers include distributors and restaurants. Although the
needs and final marketing ideas for reaching this target need further
development some of the general ideas include the ability to provide
product tips (i.e. decorating, keeping it fresh, etc...) as well as
providing supportive marketing materials that can be used to promote sales
within the venue.
Fundraiser
Want to provide downloadable brochures and order forms.
Marketing & Maintenance .*
The parties are to negotiate in good faith a contract to provide marketing
and on going maintenance.*
The below is not included in contract.*
We offer our expertise in creating and implementing results driven media
advertising campaigns utilizing traditional and online media planning with
the goal of strategically building the Brooklyn Cheesecake brand. This
vision is realized through a team approach and a host of capabilities
including:
o Advertising Planning
o Strategic Media Planning
o Media and Market Research
o Media Buying Clout
o Creative Development
o Production
* Hand written on original contract*****
-14-
The customized execution may include use of the following:
o Promotions
o Direct Mail
o Radio Campaigns
o Print Advertising
o National Cable TV advertising
o Online Advertising to proactively drive traffic through the use of
major search engine promotional programs
o E-mail campaigns
Results will be tracked and analyzed on a regular basis through:
o Vanity Number/Toll Free Reports
o Call Center Management/Order Entry Reports
o Web Campaign Summaries including Page Statistics
A monthly marketing and advertising budget will be determined by Brooklyn
Cheesecake and agreed upon after a detailed media plan has been approved.
-15-
Schedule B Timetable and Additional Services
>> March 1, 2005: Project commences - Project Manager (▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇) meets with client to secure digital assets, product
detail, and copy.
>> March 4, 2005 - Merchant account detail provided by client.
>> March 8, 2005 - First prototype delivered with products, look and
feel intact for discussion and review.
>> March 10, 2005 - initial training on program usage for fulfillment
is done on client premises.
>> March 15, 2005 - Merchant processing gateway integration completed.
>> March 18, 2005 - final prototype delivered.
>> March 21, 2005 - one week of test ordering, friends and family.
>> March 28, 2005 - website open for public business.
>> April 30, 2005 - Corporate gifting site.
>> May 31, 2005 - Food service and fundraising site.
-16-
Schedule C - Software Application and Database Features
*General Functionality *
o Built with PHP 4
o Multilingual support with English supplied
*Administration / Backend Functionality *
o Supports unlimited products and categories
o Products-to-categories structure
o Categories-to-categories structure
o Add/Edit/Remove categories, products, manufacturers, customers, and
reviews
o Administration area secured with a username and password
o Contact customers directly via email or newsletters
o Easily backup and restore the database
o Print invoices and packaging lists from the order screen
o Statistics for products and customers
o Multilingual support
o Multicurrency support
o Automatically update currency exchange rates
o Select what to display, and in what order, in the product listing
page
o Support for static and dynamic banners with full statistics
*Customer / Frontend Functionality *
o All orders stored in the database for fast and efficient retrieval
o Customers can view their order history and order statuses
o Customers can maintain their accounts
o Address book for multiple shipping and billing addresses
o Temporary shopping cart for guests and permanent shopping cart for
customers
o Fast and friendly quick search and advanced search features
o Product reviews for an interactive shopping experience o Forseen
checkout procedure
o Secure transactions with SSL
o Number of products in each category can be shown or hidden
o Global and per-category bestseller lists o Display what other
customers have ordered with the current product shown
o Breadcrumb trail for easy site navigation
*Product Functionality *
o Dynamic product attributes relationship
o HTML OR EQUIVALENT based product descriptions
o Automated display of specials
o Control if out of stock products can still be shown and are
available for purchase
o Customers can subscribe to products to receive related
emails/newsletters
-17-
*Payment Functionality *
o Accept numerous offline payment processing (check, money orders,
offline credit card processing,..)
o Accept numerous online payment processing (2CheckOut, PayPal,
o ▇▇▇▇▇▇▇▇▇.▇▇▇, iPayment,..) - Client must obtain a Merchant Account
Disable certain payment services based on a zone basis
*Shipping Functionality *
o Weight, price, and destination based shipping modules o Real-time
quotes available (UPS, USPS, FedEx,..) o Free shipping based on
amount and destination
o Disable certain shipping services based on a zone basis
*Tax Functionality *
o Flexible tax implementation on a state and country basis
o Set different tax rates for different products
o Charge tax on shipping on a per shipping service basis
-18-
Schedule D - Compensation
1. 350,000 shares* of Brooklyn Cheesecake & Desserts Company Common Stock
issuable to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ upon commencement of work as set forth on
Schedule A.
2. 350,000 shares* of Brooklyn Cheesecake & Desserts Company Common Stock
issuable to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ upon commencement of work as set forth on
Schedule A.
3. 350,000 shares* of Brooklyn Cheesecake & Desserts Company Common Stock
issuable to ▇▇▇▇▇▇▇ ▇▇▇▇ upon commencement of work as set forth on
Schedule A.
4. 350,000 shares* of Brooklyn Cheesecake & Desserts Company Common Stock
issuable to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ upon the completion and launching of the Site
for commercial activity in accord with the terms of this Agreement which
this Schedule E is a part thereof.
5. 350,000 shares* of Brooklyn Cheesecake & Desserts Company Common Stock
issuable to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ upon the completion and launching of the Site
for commercial activity in accord with the terms of this Agreement which
this Schedule E is a part thereof.
6. 350,000 shares* of Brooklyn Cheesecake & Desserts Company Common Stock
issuable to ▇▇▇▇▇▇▇ ▇▇▇▇ upon the completion and launching of the Site for
commercial activity in accord with the terms of this Agreement which this
Schedule E is a part thereof.
7. 400,000 shares* of Brooklyn Cheesecake & Desserts Company Common Stock
issuable to others upon the completion and launching of the Site for
commercial activity in accord with the terms of this Agreement which this
Schedule E is a part thereof.
-----------
o Shares of Common Stock to be subject to separate voting rights agreement
by and between the Company and ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ providing the
Chairman of Brooklyn Cheesecake & Desserts authority to vote the shares
until such time as the shares are sold or transferred under applicable
securities law to a non affiliate of Consultant or Consultants.
-19-