EXHIBIT 10(d): Service Agreement with Cashflow Technologies,
Inc. with Exhibits and Attachments
SERVICES AGREEMENT [iWizard Logo]
This Services Agreement ("Agreement") is made as of the 1st day
of December, 2002 ("Effective Date"), by and between iWizard
Holding, Inc. ("iWizard"), a Delaware corporation, with a place
of business at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇. #▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and
Cashflow Technologies, Inc. ("CTI"), a Nevada corporation, with a
place of business at ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇.
1. TERM.
The Initial Term of the Agreement shall be twelve (12) months,
beginning on the Effective Date and expiring on December 31,
2003. Either party must notify the other party in writing at
least sixty (60) days prior to the expiration of the term if they
elect not renew.
2. RENEWAL/TERMINATION.
Following the Initial Term, the Agreement may be renewed for
subsequent terms of one (1) year each with the written consent of
the parties. As used herein, "Term" shall mean the Initial Term
and any renewal term. Either party may terminate the Agreement
immediately in the event the other party is in default hereunder
and fails to either cure such default or begin implementation of
a mutually agreed upon plan to cure such default within sixty
(60) days of written notice from the other party specifying the
nature of such default and requiring its remedy.
Either party may immediately terminate this Agreement upon
written notice to the other party if (i) the other party
petitions for relief under the Bankruptcy and Insolvency Act or
any other comparable law of any other jurisdiction (ii) any
involuntary petition thereunder is filed or receiving order is
given against the other party and is not dismissed within sixty
(60) days; (iii) relief under the Federal Bankruptcy Code or
state bankruptcy laws is granted with respect to the other party
as a debtor; (iv) the other party makes a general assignment for
the benefit of creditors; (v) the other party ceases doing
business or assigns or attempts to assign this Agreement to an
entity other than as provided in Section 16 below; or (vi) there
is a material breach of this Agreement.
3. SERVICES.
The services ("Services") to be provided by iWizard to CTI will
be set forth in Statement(s) of Work attached hereto and made a
part hereof, which Statement(s) of Work may be amended from time
to time by written agreement of the parties including, without
limitation, pursuant to the "Change Management and Control"
process set forth in Exhibit A attached hereto and made a part
hereof.
CTI shall designate one individual to whom all iWizard
communications concerning this Agreement may be addressed (the
"CTI Contact"). Likewise, iWizard shall designate an "iWizard
Contact," who shall serve as the single point of accountability
for iWizard for the Services and have day-to-day authority to
ensure iWizard's performance of its obligations under this
Agreement.
The parties shall cooperate with one another by, among other
things, making available, as reasonably requested by the other
party, management decisions, information, approvals and
acceptances so that each party may accomplish its obligations and
responsibilities hereunder. The CTI and iWizard Contacts or his
or her designee will be the principal point of contact for
obtaining such decisions, information, approvals and acceptances.
The CTI and iWizard Contact or his or her designee will respond
to written requests for decisions from the other party's Contact
or his or her designee in accordance with the time schedule
agreed to by the iWizard Contact and the CTI Contact, in the
absence of which, the CTI and iWizard Contact will respond within
a reasonable period of time.
In the event the iWizard or CTI Contact or his or her designee
does not receive an adequate response within the time period
prescribed above, iWizard and CTI may escalate the decision
process, with each such individual required to provide a response
to the other party within a reasonable period.
Notwithstanding anything in this Agreement to the contrary,
either party's delay or non-performance of its obligations under
this Agreement shall be excused if and to the extent such delay
or non-performance results from the other party's failure to
timely respond or perform its responsibilities under this
Agreement, or if a party impedes the performance of the other
party. In such event, the aggrieved party will provide the other
party with reasonable notice of such non-performance and will use
commercially reasonable efforts to perform notwithstanding the
other party's failure to perform. CTI shall continue to pay
iWizard for Services actually performed by iWizard prior to and
during any such period of non-performance by CTI.
4. PRICING.
CTI agrees to pay iWizard for the Services in accordance with the
pricing set forth in each Statement of Work. However, any change
in charges incurred on behalf of CTI by iWizard from third-party
data vendors, which charges are beyond iWizard's control, shall
be subject to a related change in the prices specified in each
Statement of Work. iWizard agrees to provide CTI with as much
notice as possible of changes in any such third party charges.
Unless otherwise specified, all charges are exclusive of taxes.
CTI agrees to pay sales or related taxes levied in connection
with the Agreement.
5. PAYMENT/AD HOC SERVICES.
Fixed Monthly Fees. Unless stated otherwise in a Statement of
Work or Work Request Document, any fees, which are fixed and due
on a monthly basis ("Fixed Monthly Fees") are due on the last day
of the prior month (for example, a Fixed Monthly Fee for January
1, 2002 would be due on December 31, 2001). IWizard will invoice
CTI on the 15th of the month for the following month's fees.
Past Due Fees. With respect to Ad Hoc Fees or Variable Fees, any
undisputed amounts not paid within thirty (30) days of the date
of invoice shall accrue interest at the prime rate of the Bank of
Montreal as of the first day the amount is past due. Failure to
make timely payments shall constitute a default hereunder and
shall entitle iWizard to suspend its performance of the Services
and/or require payment in advance for future performance until
CTI's account is paid in full.
6. CONFIDENTIALITY / PROPRIETARY INFORMATION / TRANSITION.
All data, tapes, product designs, business and marketing plans,
product strategies and any other information submitted to iWizard
by CTI or by other entities on CTI's behalf pursuant to the
Agreement, and any work product created specifically and
exclusively for CTI by iWizard pursuant to the Agreement
(collectively the "CTI Proprietary Information"), shall be held
in confidence by iWizard and shall not be disclosed to any third
party without the prior written consent of CTI. iWizard agrees
not to use or make copies of the CTI Proprietary Information
except as required for the performance of its obligations under
the Agreement, and agrees to limit access to the CTI Proprietary
Information to its own employees, agents and consultants strictly
on a need to know basis; provided, however, that such agents and
consultants have executed an agreement with iWizard with
confidentiality provisions at least as restrictive as those
contained herein. CTI Proprietary Information shall not include
information which (a) is in or has entered the public domain
through no breach of this Agreement or other wrongful act of
iWizard; (b) has been rightfully received by iWizard from a third
party without breach of this Agreement; (c) has been approved for
release by written authorization of the CTI; or (d) is required
to be disclosed pursuant to the final binding order of a
governmental agency or court of competent jurisdiction, provided
that iWizard has been given reasonable notice of the pendency of
such an order and the opportunity to contest it.
iWizard acknowledges that CTI is the owner of all of the CTI
Proprietary Information and the media on which it has been
stored, together with any work product created specifically and
exclusively for CTI by iWizard from the CTI Proprietary
Information, but excluding any and all iWizard Proprietary
Information (as defined below) including, without limitation, pre-
existing works of authorship and materials, written documents and
ideas, whether or not protected by iWizard under existing federal
copyright registrations or patents and whether or not issued or
pending.
Any proprietary software programs, data model(s), data
integration tools or technology, business rules and any related
adapters, data processing systems or mechanisms, trade secrets,
know-how and/or processes which iWizard may utilize in the
performance of the Services, as well as any data or written
materials delivered by iWizard, other than those created
specifically and exclusively for CTI under this Agreement, shall
be considered "iWizard Proprietary Information." CTI
acknowledges and agrees that it shall have no rights in or to any
of the iWizard Proprietary Information under this Agreement. CTI
further acknowledges and agrees that iWizard retains unrestricted
rights in any ideas, concepts and techniques iWizard may use in
performing the Services hereunder.
All iWizard Proprietary Information submitted or disclosed to CTI
by iWizard shall be held in confidence by CTI and shall not be
disclosed to any third party without the prior written consent of
iWizard. CTI agrees to limit access to the iWizard Proprietary
Information to its own employees, agents and consultants strictly
on a need to know basis; provided, however, that such agents and
consultants have executed an agreement with CTI with
confidentiality provisions at least as restrictive as those
contained herein. iWizard Propretary Information shall not
include information which (a) was already known to CTI prior to
the time that it is disclosed to CTI hereunder; (b) is in or has
entered the public domain through no breach of this Agreement or
other wrongful act of CTI; (c) has been rightfully received by
CTI from a third party without breach of this Agreement; (d) has
been approved for release by written authorization of iWizard.
iWizard reserves the right to provide Services which are similar
to those contemplated in this Agreement, and to utilize the
iWizard Proprietary Information in providing such Services to
other iWizard customers.
7. GENERAL WARRANTIES.
EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, ANY STATEMENT OF
WORK OR AD HOC PROJECT FORM, THERE ARE NO OTHER REPRESENTATIONS,
WARRANTIES, OR CONDITIONS, IN FACT OR IN LAW, EXPRESS OR IMPLIED
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND
THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF
DEALING OR USAGE OF TRADE.
8. REMEDIES.
iWizard's sole obligation and CTI's exclusive remedy for any
claim of defective Services shall be to reperform the Services in
question without charge or, at CTI's option, to refund the price
paid by CTI for any defective Services. iWizard's aggregate
liability to CTI whether for negligence, breach of warranty, or
any other cause of action shall be limited to the price paid for
the Services to which the incident relates.
9. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES,
INCLUDING, WITHOUT LIMITATION, LOST INCOME OR LOST REVENUE, AND
WHETHER BASED IN CONTRACT, STATUTE, TORT, INCLUDING WITHOUT
LIMITATION NEGLIGENCE AND GROSS NEGLIGENCE, OR ANY OTHER THEORY.
Any cause of action arising from or in connection with this
Agreement shall be asserted within one (1) year of the date upon
which such cause of action accrued, or the date upon which the
complaining party should have reasonably discovered the existence
of such cause of action, whichever is later.
10. APPLICABLE LAW.
The Agreement shall be governed and construed in accordance with
the laws of Arizona, without regard to conflict of law
principles, and shall benefit and be binding upon the parties
hereto and their respective successors and permitted assigns.
11. ENTIRE AGREEMENT.
The Agreement, together with the Exhibit(s), Statement(s) of
Work, and Appendices attached hereto, constitutes the entire
agreement between the parties with respect to the subject matter
hereof and supersedes any and all written or oral prior
agreements and understandings between the parties.
12. MODIFICATION / SEVERANCE / WAIVER.
The Agreement, and any Statement of Work attached hereto, may
only be amended by a separate writing signed by both parties. If
any one or more of the provisions of the Agreement or any
Statement of Work shall for any reason be held to be invalid,
illegal or unenforceable, the same shall not affect any of the
other portions of the Agreement or Statement of Work. Failure or
delay by either party in exercising any right hereunder shall not
operate as a waiver of such right.
13. ASSIGNMENT.
Neither party may assign its rights and obligations hereunder
without the prior written consent of the other party, which
consent shall not be unreasonably withheld or delayed; provided,
however, that no consent shall be required for assignment by
either party, upon written notice to the other, to an affiliated
corporation or other entity under common control with such party,
provided that the assigning party shall remain fully liable for
performance hereunder, unless the parties agree otherwise in
writing, and the party to whom the assignment is made has
sufficient resources to perform all obligations under this
Agreement.
14. ALTERNATIVE DISPUTE RESOLUTION.
If a dispute arises among the parties relating to this Agreement,
the following procedure shall be implemented before either party
pursues other available remedies, provided, however, that relief
from a court may be pursued if (i) the only dispute relates to
unpaid fees, costs or other charges, or (ii) injunctive relief is
sought in order to maintain the status quo while this procedure
is being followed:
The parties will attempt in good faith to resolve any dispute
arising out of or relating to the Agreement promptly and
initially by senior executives of the parties in the following
manner: If a dispute should arise, a senior officer for each of
CTI and iWizard shall meet within seven (7) days of written
notification of the dispute at a location to be selected by the
parties to attempt to resolve the dispute.
The Senior Executives shall meet as soon as practicable, but in
no event later than fourteen (14) days after the matter has been
referred to them, the initial meeting occurring at a location to
be selected by the parties. Subsequent meetings, if required,
shall be rotated between each Senior Executive's place of
business or at any other mutually agreeable location. If the
Senior Executives are unable to resolve the dispute within sixty
(60) days of their receipt of the matter for resolution, and
either or both are unwilling to continue negotiations, each party
may pursue any and all remedies available to it at law and in
equity.
15. FORCE MAJEURE.
Neither party shall be liable for any losses arising out of the
delay or interruption of its performance of obligations under the
Agreement due to any act of God, act of governmental authority,
act of public enemy, war, riot, flood, civil commotion,
insurrection, severe weather conditions, or any other cause
beyond the reasonable control of the party delayed.
16. NOTICES.
Any notice or other communication required hereunder shall be
made in writing and sent by registered or certified United
States, return receipt requested and postage prepaid or delivery
to the applicable addresses first set forth below, as follows:
If to iWizard, at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇. #▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇
If to CTI, at ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Any party may at any time change the name or address of the
persons to whom all notices or other documents required to be
given under this Agreement must be sent by giving written notice
to the other party. Any notice given pursuant hereto shall be
deemed given upon receipt.
17. SURVIVAL OF TERMS.
Any provision of this Agreement which contemplates performance or
observance subsequent to any termination or expiration of this
Agreement, including, without limitation, all provisions with
respect to confidentiality, proprietary information, and any
limitation on liabilities and disclaimers, shall survive any
termination or expiration of this Agreement and continue in full
force and effect.
18. COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
including facsimile copies, each of which may be executed by less
than all of the parties hereto, each of which shall be
enforceable with respect to the parties actually executing such
counterparts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized representatives as of the
Effective Date set forth above.
CASHFLOW TECHNOLOGIES, INC. IWIZARD HOLDING, INC.
BY: BY:
-------------------------- ---------------------------
(Signature) (Signature)
------------------------------ -------------------------------
(Print or Type Name) (Print or Type Name)
---------------------------- ---------------------------
(Title) (Title)
EXHIBIT A to Services Agreement
Change Management and Control
This section describes the process for requesting and approving
changes to the systems for which Services are provided pursuant
to this Agreement. The iWizard Project Manager is responsible
for administering and managing this change control process.
Definition of Change
A "change" is defined as any modification, clarification,
addition, or deletion to the baseline Statement of Work and/or
its component documents. A Change Request Form ("CRF"), a sample
form of which is attached hereto, will be the vehicle for
communicating change or making a request for work to be done.
The CRF must describe the change, the rationale for the change,
and the effect the change will have on the project. The CRF will
identify any new deliverables, as well as any applicable fees.
Change Management Process
The following describes the process to follow when requesting a
change to a Statement of Work.
1. Any project team member (iWizard or CTI or CTI assigns) can
initiate a CRF by filling out a CRF and submitting it to the
iWizard Project Manager.
2. All requests will be brought before a Review Meeting of
iWizard and CTI representatives, time and frequency to be agreed
upon, the purpose of such meeting shall be to approve change and
work requests and assign priorities for resources.
3. If approved, the iWizard team will specify the requirements
of the project and determine the time and resources required and
the overall impact on the systems. Upon completion, the
findings will be presented at the next regularly scheduled Review
Meeting or at a special meeting if deemed necessary.
4. If the request is approved, it will be signed
(electronically or hardcopy) by both parties to authorize work to
commence. A Change / Work Request Log will be maintained to
track the status of all requests. The status of all requests
will be on the agenda for the Review Meeting.
5. If for any reason the request exceeds resources available
under this Services Agreement, where possible, CTI may choose to
assign additional resources to speed the completion of a project,
expand the scope, etc. at the rates below provided iWizard agrees
to secure those resources. Any other skill sets required with
be quoted at the then market rate.
Hourly Rates
------------------------
Project Leader
$60/hr
Software Developerator
$60/hr
Customer Service Rep
$35/hr
Data Analyst
$50/hr
EXHIBIT B to Services Agreement
Change Request / Work Request Form
Request related to: __Campaign/Mktg __Website __eCommerce__Other System ____
Requester Name _________________________Company_________________
Date____________
DESCRIPTION of REQUEST Needed by___________
Assigned to Vendor____________________Contact__________________Date________
SPECIFICATION (Look for attachments) Estimated Completion Date________
Job Steps required: Actual Completion Date __________
Bandwidth
Implications_____________________________________________________
Hardware and Software
Implications___________________________________________________
Maintenance
Implications_____________________________________________________
Labor hours Required____________Chargeable hours___________
Non-charge hours____________
Ad Hoc Services Pricing Schedule
APPROVALS
Vendor
Rep___________________________Vendor________________________Date_______
Requester_____________________________Company____________________
Date__________
Cashflow Technologies, Inc.
Monthly IT Maintenance and Support
Statement of Work
The Team
Dedicated Support (up to 80 hours per week)
The full-time focus of these two folks is on Cashflow
Technologies, Inc. (CTI). Their goal is to minimize down time
and think of creative ways to improve the CTI system.
* Project Leader / Data Analyst to manage and coordinate
projects, define and document design specifications and execute
campaign strategy.
* Software Developer to monitor and tune servers and program
changes to existing functionality.
Non-dedicated Support (a virtual team person for up to 40 hours
per week)
These are resources required to accomplish CTI goals but are
not required on a full-time basis.
* Web Designer to create email templates and make graphics
changes
* Videographer for 4 video shoots per year
* Editor/Encoder for up to 4 video recordings a year and up to
4 audio recordings per month.
* Technical Customer Service Rep to answer and resolve
technical support calls
* Teleprompter Operator for 4 video shoots per year
* Senior eCRM Analyst to create and direct eCRM strategy
* Senior Technical Analyst to design and direct technical
strategy
Responsibilities
* 24 hour monitoring of all servers including Jive Forum,
eCommerce and Web site except for holidays to be agreed upon and
scheduled.
* Coordinate work efforts with Rackspace regarding hardware
maintenance and service.
* Maintain the existing interfaces between the eCommerce site
and the fulfillment centers
* Provide toll-free technical customer support for the Web
site, eCommerce and Jive Forum.
* Monitor system performance, bandwidth and web site traffic
and tune the system as required
* Update and modify existing functionality as specified by
CTI.
* Run monthly data hygiene process to eliminate duplicates,
append demographics, and update existing profiles. Note: Third
party costs are not included.
* Make content changes as specified by CTI to the Web site,
eCommerce and Jive Forum.
* Maintain and improve functionality of existing eCommerce
system including but not limited to adding SKUs and shipping
options and expanding campaign management features.
* Coordinate the implementation of projects with other CTI
vendors as required.
* Develop new programs with vendors such as Quicksilver and
Franklin Coaching as resource capacity and team skill sets allow.
* Manage and execute eCRM strategy including but not limited
to evaluating list sources, creating a prospecting strategy,
designing and building email templates, querying the system,
analyzing campaign responses, cleaning the data, editing video
and audio and delivering rich media email campaigns.
* Publishing database status and system exception reports.
* Implementation and automation of scripts, such as system
alerts.
* Monitor the testimonial engine and make changes as specified
by CTI.
* Coordination of all project management aspects including but
not limited to compilation of project plans, project timelines,
test plans and resource requirements; allocate resources,
communicate status of open projects, maintain change management
process and log. Ensure team members are focused on the
successful completion of project tasks, and that the project
remains on schedule and is completed with the highest possible
quality.
* Creation of a Web site optimization and site promotion plan
to incorporate affiliate relationships and key word placements.
* Maintenance of a backup and recovery strategy
Capacity
With regards to providing new functionality, the only limitation
shall be the size of the hardware environment and the size of the
resources agreed upon. The scope of work cannot be expanded
arbitrarily. A Change Management process will be used to
prioritize work projects and determine the available capacity of
the team, given CTI requests in the queue.
Change Management
The boundaries for any change request will be the projects and
priorities currently specified, the capacity of the current team
and the requirements for the new project. With the team
resources remaining constant, we will have to manage the other
project factors of scope and duration. The iWizard team will work
with CTI to identify and prioritize deliverables. CTI will drive
the efforts and focus of the iWizard Maintenance team.
Work Request Flow (simplified)
1) A request is made to the iWizard Project Leader on a Work
Request Form
2) The request is scoped for time and resources needed.
3) The specification is returned to CTI for approval and
prioritization within existing projects
4) IWizard completes Work Request and reports status to CTI
Not included
* Third party expenses for items such as demographic appension
or internet advertising.
* Additional hardware or software needed to execute CTI
requests.
* Videotaping or production for anything other than a head and
shoulders shot for web video in wave format.
* New development requiring skill sets not employed by iWizard
or not allowed by the current schedule.
* Credits for unused resources for future projects.
* Use of iWizard hardware for delivery of email campaigns
* Development of mentoring subscription program on a revenue
sharing arrangement.
* Rebuild of the Web or eCommerce sites to incorporate Rich
Dad's Journey.
* International sites in languages other than English.
Assumptions
* IWizard reserves the right to assign non-dedicated resources
at its discretion.
* If requests exceed available resources for multiple
consecutive months, CTI and iWizard will mutually agree to the
best way to CTI's needs.
* IWizard and CTI will agree to a schedule of holidays and
system downtimes required for routine and necessary maintenance.
* CTI will make a twelve month commitment for maintenance
beginning December 1, 2002
* Either party may give 60-days notice of termination.
Communication Plan
iWizard will schedule a weekly Status Meeting to report the
progress of projects and to discuss and set priorities for any
newly specified Work Requests.
On a monthly basis, iWizard will provide a list of completed
projects and resolved issues and will make any recommendations to
improve the systems.
Monthly cost $25,000 per month beginning December 1, 2002