Exhibit10.5 SECONDAMENDMENT TO SOFTWAREDEVELOPMENT AND CONSULTING AGREEMENT

EX-10.5 3 ex10-5.htm ex10-5.htm

Exhibit 10.5

SECOND AMENDMENT TO

SOFTWARE DEVELOPMENT AND CONSULTING AGREEMENT

This Second Amendment to Software Development And Consulting Agreement is made and entered into on March 11, 2009 (the “Effective Date”), between SUMOTEXT, Inc. (formerly Reminderbox, Inc.) (“SUMOTEXT”) and Atreides, LLC (“Consultant” and the “Agreement”), each individually a “Party” and collectively the “Parties.”

W I T N E S S E T H:

WHEREAS, the Parties previously entered into a Software Development and Consulting Agreement on or around January 1, 2007 (the “Original Agreement”);

WHEREAS, the Parties previously entered into a First Amendment to Software Development and Consulting Agreement on or around February 24, 2007 (the “Amended Agreement” and collectively with the Original Agreement, the “Software Agreement”);

WHEREAS, the Software Agreement includes some language which is confusing to the Parties; and

WHEREAS, the Parties desire to amend the language of the Software Agreement as provided below.

NOW, THEREFORE, in consideration for the promises and pledges contained below and other good and valuable consideration, which consideration the Parties acknowledge receipt of, and the premises and the mutual covenants, agreements, and considerations herein contained, the Parties hereto agree as follows:

Amendment to Software Agreement.

Subject to satisfaction of the condition precedent set forth below in Section 4, Section 8 of the Software Agreement is hereby removed in its entirety.

Consideration.

Each Party confirms and acknowledges by signing below that they are receiving valid consideration as a result of the terms and conditions of this Agreement.

Effect of Agreement.

Upon the effectiveness of this Agreement, each reference in the Software Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference to such documents, as applicable, as amended hereby. Other than the Section of the Software Agreement modified herein, the Software Agreement shall remain in full force and effect.

4.	Conditions of Effectiveness.

This Agreement shall become effective upon execution by each of the Parties hereto.

5.	Miscellaneous.

Assignment. All of the terms, provisions and conditions of this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the Parties hereto and their respective successors and permitted assigns.

Applicable Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Arkansas, excluding any provision of this Agreement which would require the use of the laws of any other jurisdiction.

Entire Agreement, Amendments and Waivers. This Agreement constitutes the entire agreement of the Parties hereto and expressly supersedes all prior and contemporaneous understandings and commitments, whether written or oral, with respect to the subject matter hereof. No variations, modifications, changes or extensions of this Agreement or any other terms hereof shall be binding upon any Party hereto unless set forth in a document duly executed by such Party or an authorized agent or such Party.

Waiver. No failure on the part of any Party to enforce any provisions of this Agreement will act as a waiver of the right to enforce that provision.

Section Headings. Section headings are for convenience only and shall not define or limit the provisions of this Agreement.

Construction. The Parties acknowledge that each of them has had the benefit of legal counsel of its own choice and has been afforded an opportunity to review this Agreement with its legal counsel and that this Agreement shall be construed as if jointly drafted by the parties hereto.

Authority. Each Party has all requisite power and authority, corporate or otherwise, to enter into and affect the transactions contemplated by this Agreement.

Effect of Facsimile and Photocopied Signatures. This Agreement may be executed in several counterparts, each of which is an original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other counterparts. This Agreement may be executed by facsimile transmission or by e-mail transmission in PDF. A photocopy or PDF of this Agreement shall be effective for all purposes.

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This Agreement has been executed by the Parties on the date first written above, with an Effective Date as provided above.

Atreides, LLC

/s/ Tim Miller

______________________

Tim Miller

President

SUMOTEXT, Inc.

/s/ Tim Miller

______________________

Tim Miller

President

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