SOFTWARE DEVELOPMENT AGREEMENT
This Software Development Agreement ("Agreement") is made and effective this
January 26th, 2000 by and between BentleyTel.com Inc., a Nevada corporation with
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offices at 4675 MacArthur Court, Suite 420, Newport Beach, CA herein represented
by its President Jonathon Bentley-Stevens ("Co-Developer")
AND
Data Exchange Inc (Texas) corporation with offices at 1202 West Executive Drive,
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Richardson, TX herein represented by its Chief Executive Officer Ken Heffner
("Owner").
NOW THEREFORE, in consideration of the mutual promises herein contained, the
parties hereto agree as follows:
1. Duties and Responsibilities.
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Co-Developer shall serve as a contractor of Owner and shall design, develop, and
implement application software (the "Software") according to the functional
specifications and related information, if any, attached hereto as Exhibit A and
incorporated herein by this reference (the "Specifications") and as more fully
set forth in this Agreement Co-Developer acknowledges that it has been
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contracted for this specific task, and that it shall report all findings and
make all recommendations and adaptations options in conjunction directly to the
management of Owner. The Software, including all versions in either source code
or object code form, shall be updated and delivered to Owner as requested by
Owner.
2. Ownership of Software.
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Co-Developer agrees that the development of the Software is work made for hire"
within the meaning of the Copyright Act of 1976, as amended, and that the
Software shall be the sole property of Owner. Co-Developer hereby recognizes the
Owners right, title and interest in and to the Software and any and all related
patents, patent applications, copyrights, copyright applications, trademarks and
trade names in the United States and elsewhere. Co-Developer will keep and
maintain adequate and current written records with respect to the Software (in
the form of notes, sketches, drawings, code comments, and as may otherwise be
specified by Owner), which records shall be available to and remain the sole
property of Owner at all times. All versions of the Software shall contain
Owners conspicuous notice of copyright. Co-Developer will assist Owner in
obtaining and enforcing patent, copyright and other forms of legal protection
for the Software in any country. Upon request, Co-Developer will sign all
applications, assignments, instruments and papers and perform all acts necessary
or desired by Owner to assign the Software fully and completely to Owner and to
enable Owner, its successors, assigns and nominees, to secure and enjoy the full
and exclusive benefits and advantages thereof.
3. Compensation.
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Owner shall compensate Co-Developer by granting certain marketing rights to its
products(s) as outlined in the Software Distribution Agreement, with the
exception of written adjustments which will be an addendum or addendums to this
contract executed by both parties from time to time.
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4. Independent Contractor.
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Co-Developer is acting as an independent contractor with respect to the services
provided to Owner. Neither Co-Developer nor the employees of the Co-Developer
performing services for Owner will be considered employees or agents of Owner.
Owner will not be responsible for Co Developer's acts or the acts of
Co-Developer's employees while performing services under this Agreement. This
Agreement shall be constructed as part of joint venture, partnership or
principal-agent relationship between the parties.
5. Development Staff-Monitoring.
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A. Co-Developer will utilize employees and/or contractors capable of designing
and implementing the Software to be developed hereunder. All work shall be
performed in a professional and workmanlike manner. Co-Developer shall arrange
for such employees and/or contractors, if any, to execute and deliver any
document or instrument reasonably requested by Owner to reflect Owner's
ownership of the Software or in connection with any application for patent or
copyright.
B. Owner shall have the right to reasonably observe and monitor all aspects of
the performance by Co-Developer of its obligations hereunder and Co-Developer
shall use reasonable efforts to facilitate such observation and monitoring.
Information, functions and operations of Co Developer not directly related to
its obligations hereunder shall not be subject to observation and monitoring.
6. Change in Specifications.
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Owner may, in its sole discretion, request that changes be made to the
Specifications, or other aspects of the Agreement and tasks associated with this
Agreement. If Owner requests such a change, Co-Developer will use its best
efforts to implement the requested change at no additional expense to Owner and
without delaying delivery of the Software. In the event that the proposed change
will, in the reasonable opinion of Co-Developer, require a delay in delivery of
the Software or would result in additional expense to Owner, then Owner and
Co-Developer shall confer and Owner shall, in its discretion, elect either to
withdraw its proposed change or require Co-Developer to deliver the Software
with the proposed change and subject to the delay and/or additional expense.
7. Confidentiality.
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A. Co-Developer acknowledges that all material and information supplied by
Owner which has or will come into Co-Developer's possession or knowledge of
Co-Developer in connection with its performance hereunder, is to be considered
Owner's confidential and proprietary information (the "Confidential
Information"). By way of illustration, but not as a limitation, Confidential
Information includes the Software, trade secrets, processes, data, know-how,
program codes, documentation, flowcharts, algorithms, marketing plans,
forecasts, unpublished financial statements, budgets, licenses, prices, costs,
and employee and customer lists. Co-Developer's undertakings and obligations
under this Section will not apply, however, to any Confidential Information
which: (i) is or becomes generally known to the public through no action on Co
Developer's part, (ii) is generally disclosed to third parties by Owner without
restriction on such third parties, or (iii) is approved for release by written
authorization of Owner. Upon termination of this Agreement or at any other time
upon request, Co-Developer will promptly deliver to Owner all notes, memoranda,
notebooks. drawings, records, reports, files, documented source codes and other
documents (and all copies or reproductions of such materials) in its possession
or under its control, whether prepared by Co-Developer or others, which contain
Confidential Information. Co-Developer acknowledges that Confidential
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Information is the sole property of Owner. Co-Developer agrees that disclosure
of such information to, or use by, third parties, either during or after this
Agreement, will cause Owner irreparable damage. Co-Developer agrees to use best
efforts to hold Confidential Information in the strictest confidence, not to
make use of it other than for the performance of its obligations hereunder, to
release it only to the Co Developer's employees or contractors with a need to
know such information and not to release or disclose it to any other party.
Co-Developer further agrees not to release such information to any employee or
contractor who has not signed a written agreement between Co-Developer and the
employee expressly binding the employee not to use or disclose the Confidential
Information, except as expressly permitted herein. Owner shall be listed as a
third-party beneficiary of any such agreement. Co-Developer will notify Owner in
writing of any circumstances within its knowledge relating to any unauthorized
possession, use. or knowledge of such Confidential Information. At any time,
upon. request, the Co-Developer will return any such information within its
possession to Owner.
B. Co-Developer acknowledges that Owner's purpose in pursuing the development of
the Software is to gain a significant competitive advantage over competitors
operating without such Software and that such advantage will be jeopardized if
such competitors learn of Owner's negotiations with Co-Developer or the
performance by Co-Developer of its obligations hereunder. Accordingly,
Co-Developer agrees to keep such negotiations and performance of its obligations
hereunder strictly confidential and not to disclose any information to any third
party or entity without the prior written permission of Owner. In no event,
shall Co-Developer or any of its employees Owner as a reference in marketing
Co-Developer's services to any third party or entity without Owner's prior
written permission.
9. Warranties.
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A. Co-Developer warrants that for the period of this Software Development
Agreement, the Software will operate substantially according to the
Specifications. In the event of any breach of the warranty in this Section 9.
A., in addition to any other remedy to which Owner may be entitled, Co-Developer
shall take all action necessary in conjunction with the Owner to cause the
Software to operate according to the warranty.
10. Term and Termination.
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A. This Agreement shall commence upon the effective date and continue until all
of the obligations of the parties have been performed or until earlier
terminated as provided herein.
B. Co-Developer's appointment as consultant pursuant to this Agreement and this
Agreement shall terminate upon the occurrence of any of the following events:
(i) In the event either party defaults in any material obligation owed to
the other party pursuant to this Agreement, then this Agreement may be
terminated if the default is not cured least thirty (30) day's' written notice
to the defaulting party.
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(ii) Either party is bankrupt or insolvent, or bankruptcy or insolvency
proceedings are instituted against a party and the proceeding is not dismissed
within sixty (60) days after commencement.
C. Section 2, Ownership of Software, and Section 7, Confidentiality, shall
survive the expiration or termination of this Agreement
11. Notices.
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All notices and other communications required or permitted hereunder or
necessary or convenient in connection herewith shall be in writing and shall be
deemed to have been given when mailed by certified or registered mail, postage
prepaid, or by commercial overnight delivery service addressed as follows.
If to Owner to:
Data Exchange, Inc.
1202 West Executive Drive
Richardson, TX 75081
If to Co-Developer to:
Bentley Telecom, Inc.
4675 MacArthur Court, Suite 420
Newport Beach, CA 92660
Or to such other address as identified by a party to the other in writing.
12. No Waiver.
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The failure of a party to require strict performance of any provision of this
Agreement by the other, or the forbearance to exercise any right or remedy,
shall not be construed as a waiver by such party of any such right or remedy or
preclude any other or further exercise thereof or the exercise of any other
right or remedy.
13. Assignment.
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The rights, duties and privileges of Co-Developer shall not be transferred or
assigned by it, in whole or in part, without the prior written consent of Owner.
14. Entire Agreement.
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This Agreement constitutes the entire agreement between parties as to the
subject matter hereof and supersedes all prior understandings or agreements
whether oral or written. This Agreement may be modified only be written
instrument signed by the parties hereto.
15. Successors.
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This Agreement shall be binding upon and insure to the benefit of the successors
and permitted assigns of the parties hereto.
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16. Severability.
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If any term of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then this Agreement, including all of the remaining
terms, will remain in full force and effect as if such invalid or unenforceable
term had never been included.
17. Govern in Law.
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The terms of this Agreement shall be construed and enforced under the laws of
the State of Texas.
18. Headlines.
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The headings used in this Agreement are for convenience construction or
interpretation.
IN WITNESS WHEREOF, the parties have executed this representatives on the dates
below written.
Data Exchange Inc. BentleyTel.com Inc.
1202 West Executive Drive 4675 MacArthur Court, Suite 420
Richardson, TX 75081 Newport Beach, CA 92660
By: By:
/s/ Ken Heffner /s/ Jonathon Bentley-Stevens
Ken Heffner Jonathon Bentley-Stevens
Chief Executive Officer President
And And
/s/ Michael Heffner /s/ Regina Peralta
Michael Heffner Regina Peralta
Chief Technical Officer Executive Vice President
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