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EXHIBIT 99.2
SERVICES AGREEMENT
This Services Agreement (this "Agreement") is entered into as of April 1, 2004
by and between Cinapsys, Inc., a Delaware Corporation located at ▇▇▇ ▇. ▇▇▇▇▇
▇▇▇. ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ("Cinapsys"), and Instapay Systems Inc.
(OTCBB: IPYS), ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Company"), based on
the following facts:
RECITALS
A. Cinapsys is an independent Investor Relations firm that provides IR/PR
and communications services to publicly held companies.
B. Company wishes Cinapsys to perform, and Cinapsys wishes to perform,
certain IR/PR services for Company, as more particularly described below and in
accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree to the following terms and conditions, which set
forth the rights, duties, and obligations of the parties:
1. PERFORMANCE OF SERVICES
1.1. PERFORMANCE OF SERVICES. Unless this Agreement is earlier terminated
as set forth in Section 7 below, for a 3 (three) month term following the date
of this Agreement, Cinapsys agrees to perform the "Services" listed in Appendix
A for Company:
1.2. REVIEW OF INTERVIEWS. Cinapsys shall provide Company with an advance
copy of each of the Interviews for review of facts at least one (1) business
days prior to publication of each Interview.
1.3. ADDITIONAL SERVICES. If Company requires additional Services from
Cinapsys, the parties agree to negotiate in good faith the terms and conditions
of such additional Services, including, without limitation, if applicable, any
deliverables, specifications, payment and delivery schedules relating thereto.
1.4. COOPERATION BY COMPANY. Company shall provide Cinapsys such support,
cooperation, information and materials as are reasonably necessary for Cinapsys
to perform the Services. Notwithstanding anything in this Agreement to the
contrary, Cinapsys shall have no liability resulting from or relating to any
delay or failure by Company in providing to Cinapsys such support, cooperation,
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information and/or materials. Company warrants that all information and
materials that either provides to Cinapsys will be true and accurate in all
material respects.
2. COMPENSATION
2.1. VALUE OF SERVICES. Company shall cause to be paid to Cinapsys $3,500
(three thousand five hundred dollars) per month. The term of this contract is
three months beginning on the date of this agreement, for the Services described
in section 1.1 above and detailed in Appendix A. The initial payment is due upon
the signing of this Agreement.
3. OWNERSHIP
Cinapsys shall share all right, title and interest (including, without
limitation, all intellectual property rights) in and to any work product or
deliverables provided to Company as part of the Services. Except as otherwise
provided in Section 7.1.2, Cinapsys hereby grants to Company a non-exclusive
license to copy and distribute any or all of the Investor Call Interviews
regarding Company.
4. REPRESENTATIONS AND WARRANTIES
4.1. LIMITED WARRANTY. Cinapsys represents and warrants to Company that
(a) Cinapsys has full power to enter into this Agreement and to perform its
obligations hereunder, and (b) Cinapsys has not made and will not make any
commitments or agreements inconsistent with this Agreement.
4.2. EXCLUSIVE WARRANTY. THE EXPRESS WARRANTIES SET FORTH IN SECTION 4.1
CONSTITUTE THE ONLY WARRANTIES MADE BY CINAPSYS WITH RESPECT TO THE SERVICES
(INCLUDING, WITHOUT LIMITATION, ANY DELIVERABLES). CINAPSYS MAKES NO OTHER
REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND WHETHER EXPRESS OR IMPLIED
(EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE SERVICES (INCLUDING,
WITHOUT LIMITATION, ANY DELIVERABLES). CINAPSYS EXPRESSLY DISCLAIMS ALL
WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
CINAPSYS DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE
SERVICES (INCLUDING, WITHOUT LIMITATION, ANY DELIVERABLES) IN TERMS OF
CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS OR OTHERWISE, OR THAT THE
SERVICES (INCLUDING, WITHOUT LIMITATION, ANY DELIVERABLES) WILL BE ERROR-FREE
(EXCEPT FOR ANY ERROR THAT RESULTS FROM CINAPSYS' BAD FAITH, WILLFUL NEGLIGENCE
OR UNTRUE STATEMENT NOT MADE IN RELIANCE UPON AND IN CONFORMITY WITH INFORMATION
PROVIDED TO CINAPSYS BY COMPANY), AND CINAPSYS HEREBY DISCLAIMS ANY AND ALL
LIABILITY ON ACCOUNT THEREOF. THERE IS ALSO NO IMPLIED WARRANTY OF
NON-INFRINGEMENT; THE SOLE REMEDY FOR INFRINGEMENT IS PROVIDED IN SECTION 5.
This Section 4.2 shall be enforceable to the maximum extent allowed by
applicable law.
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5. INDEMNIFICATION
5.1. INDEMNIFICATION BY CINAPSYS. Cinapsys shall indemnify, hold harmless
and defend Company (and its and their directors, officers, employees, and
agents) against any and all damages, costs, expenses, settlements and other
liabilities (including reasonable attorneys' fees and costs) arising out of or
relating to any claim, suit, action or proceeding to the extent based on any
claim that the Services in the form provided to Company by Cinapsys, infringe,
misappropriate or violate any U.S. copyright or U.S. trade secret, or that
result from Laguna Research Partner's bad faith, willful negligence or contain
any untrue statement that is not based upon and in conformity with information
provided by Company. This Section 5.1 states the entire liability of Cinapsys
and the exclusive remedy of Company with respect to infringement of any
intellectual property rights or Cinapsys' bad faith, willful negligence or
untrue statements, whether under theory of warranty, indemnity or otherwise.
5.2. EXCLUSIONS. Cinapsys shall have no liability for, and Company shall
indemnify and hold Cinapsys harmless from and against, any claim arising out or
relating to: (a) use, operation or combination of any deliverables with any
other documentation not provided or authorized by Cinapsys, if liability would
have been avoided but for such use or combination; (b) Company's or Company's
agents' activities after Cinapsys has notified Company that Cinapsys believes
such activities may, if Company engages in such activities, result in any claim,
suit, action or proceeding for which Cinapsys would be liable under Section 5.1,
(c) any modifications or marking of any deliverables not specifically made or
authorized in writing by Cinapsys; (d) third party product, software or data;
(e) any negligent or willful acts or omissions of Company; or (f) any use of the
Services (including, without limitation, any deliverables) outside the
geographical boundaries of the United States or Canada.
5.3. INDEMNIFICATION BY COMPANY. Company shall indemnify, hold harmless
and defend Cinapsys (and its and their directors, officers, employees, and
agents) against any and all damages, costs, expenses, settlements and other
liabilities (including reasonable attorneys' fees and costs) arising out of or
relating to any claim, suit, action or proceeding (including, without
limitation, reasonable attorneys' fees) arising from or relating to any use of
the Services, including, without limitation, any reproduction, modification,
distribution or other use of any deliverables, by Company or any party under
license from Company (including, without limitation, any claim of infringement
of third party rights or any breach of warranty), or that results from Company's
bad faith, willful negligence or delivery of untrue statements to Cinapsys.
5.4. NOTICE; COOPERATION; CONTROL. A party ("Indemnifying Party") shall
not be obligated to indemnify, hold harmless and defend the other party
("Indemnified Party") hereunder unless (and only to the extent) the Indemnified
Party (a) promptly notifies the Indemnifying Party of any such claim, suit,
action or proceeding for which indemnification is sought (provided that any
failure to provide such notice shall not diminish Indemnifying Part's
obligations under this Section 5 unless, and only to the extent that, the
Indemnifying Party is materially prejudiced as a result of any such failure to
provide such prompt notice); (b) provides reasonable cooperation to the
Indemnifying Party at the Indemnifying Party's expense; and (c) allows the
Indemnifying Party to control the defense and any settlement of such claim,
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suit, action or proceeding, provided that (i) the Indemnified Party may, at its
option expense, participate and appear with the Indemnifying Party in such
claim, suit, action or proceeding and (ii) neither party may settle any such
claim, suit, action or proceeding without the other party's prior written
approval, which will not be unreasonably withheld or delayed.
6. LIMITATION OF LIABILITY
6.1. TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL ANY PARTY
BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR PUNITIVE
DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF
BUSINESS, LOSS OF USE OF DATA OR INTERRUPTION OF BUSINESS) ARISING FROM OR
RELATING TO THIS AGREEMENT OR THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY
DELIVERABLES), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, HOWEVER CAUSED, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY.
6.2. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY OR THE
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITATION OF LIABILITY OR LIMITED REMEDY,
CINAPSYS' ENTIRE AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING UNDER OR
RELATING TO SECTION 4.1 (LIMITED WARRANTY) AND/OR SECTION 5.1 (INDEMNIFICATION
BY CINAPSYS), UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR
OTHERWISE), SHALL NOT EXCEED THE AMOUNT PAID BY COMPANY TO CINAPSYS UNDER THIS
AGREEMENT.
7. TERM AND TERMINATION
7.1. TERM.
7.1.1 Except as hereinafter provided, this Agreement shall commence on the
date first set forth above and, unless sooner terminated as provided
in this Agreement, shall continue thereafter for a period of 3
(three) months.
7.1.2 Notwithstanding Section 7.1.1, Cinapsys may terminate this Agreement
immediately if (a) Company fails to make when due any payments to
Cinapsys under this Agreement; (b) if Cinapsys determines, in its
sole discretion, that Company has failed to provide complete and
accurate information necessary for Cinapsys to perform the Services,
or that Company is acting or has acted in a manner that damages or
could potentially damage Cinapsys' reputation in the business
community, or (c) if Company (i) becomes insolvent; (ii) fails to
pay its debts or perform its obligations in the ordinary course of
business as they mature; (iii) is declared insolvent or admits in
writing its insolvency or inability to pay its debts or perform its
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obligations as they mature; (iv) becomes the subject of any
voluntary or involuntary investigation or proceeding in bankruptcy,
liquidation, dissolution, receivership, SEC inquiry, attachment or
composition or general assignment for the benefit of creditors,
provided that, in the case of an involuntary proceeding, the
proceeding is not dismissed with prejudice within sixty (60) days
after the institution thereof; or (v) becomes delinquent in its
reporting (adds an `e' to the symbol) or violates any public listing
requirements. If Cinapsys terminates this Agreement in accordance
with this Section 7.1.2, then the license granted to Company
pursuant to Section 3 shall immediately terminate.
7.1.3 Notwithstanding Section 7.1.1, Company may terminate this Agreement,
upon an aggregate ten (10) business days' prior written notice and
opportunity for Cinapsys to cure, if Cinapsys breaches any material
term of this Agreement, including, for example only, Cinapsys'
failure to deliver any of the reports referred to in Section 1.1 on
a timely basis.
7.2. EFFECT OF TERMINATION.
7.2.1 TERMINATION OF RIGHTS AND OBLIGATIONS; RETURN OF PROPERTY. Upon any
termination of this Agreement, all obligations and rights hereunder
shall terminate, except to the extent otherwise provided in this
Agreement. Within five (5) business days after any such termination
of this Agreement, each party shall return to the other party, or
destroy all copies or portions of, all of the other party's
property. At either party's request, the other party shall furnish
to the requesting party an affidavit signed by an officer of the
other party certifying that, to the best of its knowledge, such
delivery or destruction has been fully effected.
7.2.2 NO WAIVER OR RELEASE. Termination of this Agreement by either party
shall not act as a waiver of any breach of this Agreement and shall
not act as a release of either party from any liability for breach
of such party's obligations under this Agreement. Neither party will
be liable to the other for damages of any kind which arise solely as
a result of terminating this Agreement in accordance with its terms,
and termination of this Agreement by a party will be without
prejudice to any other right or remedy of such party under this
Agreement or applicable law.
7.2.3 SURVIVAL. The provisions of Sections 1.4, (to the extent any
expenses not previously reimbursed), 3 (except as provided in
Section 7.1.2), 4.1, 5, 6, 7, 9 and 10 shall survive any termination
of this Agreement.
8. ASSIGNMENT
Neither party shall assign, sell, transfer, delegate or otherwise dispose
of, whether voluntarily or involuntarily, by operation of law or otherwise, this
Agreement or any rights or obligations under this Agreement without the prior
written consent of the other party (or any successor thereto). Any purported
assignment, transfer, or delegation by any party other than in accordance with
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the foregoing shall be null and void. Subject to the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of the parties and their
respective successors and assigns.
9. GOVERNING LAW.
This agreement is to be construed in accordance with and governed by the
internal laws of the State of California (as permitted by Section 1646.5 of the
California Civil Code or any similar successor provision) without giving effect
to any choice of law rule that would cause the application of the laws of any
jurisdiction other than the internal laws of the State of California to the
rights and duties of the parties.
10. ENTIRE AGREEMENT.
This Agreement constitutes the complete and exclusive statement of
agreement between the parties with respect to the subject matter herein and
replaces and supersedes all prior written and oral agreements or statements by
and between the parties. No representation, statement, condition or warranty not
contained in such agreements will be binding on the parties or have any force or
effect whatsoever.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by duly authorized representatives of the parties as of the date hereof.
COMPANY CINAPSYS
Instapay Systems Inc., Cinapsys, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: By:
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Signature Signature
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: CEO Title: Chief Operations Officer
Date: April 1, 2004 Date: April 1, 2004
Notwithstanding anything contained herein to the contrary, it is clearly
understood and agreed to by the parties that the aforementioned services to be
provided by Consultant may or may not involve any capital raising efforts or
promotion of the Client's securities. Any such efforts will be expressly stated,
with pertinent details outlining the capital raising effort or promotion. It
shall be expressly understood that Consultant shall have no power to bind Client
to any contract or obligation or to transact any business in Client's name or on
behalf of Client in any manner and Client is not obligated to accept any
recommendations or close any transactions submitted by Consultant. Consultant
shall at all times comply with all State and Federal Securities Laws, rules and
regulations and shall not make any statements concerning the Client to any third
parties without Client consent. Consultant agrees to indemnify and hold Client
harmless from any breach of the securities laws of any state or any federal law,
rule, or regulation unless such breach is caused by the direct action of the
Client.
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APPENDIX A
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ AUDIO INTERVIEW - 1 PER QUARTER
o Question & Answer format, 6-8 questions pre-approved by management
and your compliance department;
o Targeted to institutional money managers as well as retail investors
in the U.S. and Europe, reaching ▇▇▇▇▇▇'▇ desktops, Bloomberg
terminals and Dow ▇▇▇▇▇ Newswire. PLUS, National US press
distribution and European press distribution;
o Distribution for the Interview through the Best Calls(TM)platform.
Event listings will be distributed on the Web sites of OpenCompany
(TM) Disclosure Network members, including the National Investor
Relations Institute (▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇), the National
Association of Investors Corporation
(▇▇▇▇://▇▇▇.▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇), Investor Relations Magazine
(http:/▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇) and Institutional Investor Magazine
(▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇). The OpenCompany(TM)network includes
more than 500,000 individual and institutional investors,
securities lawyers, CEOs, corporate secretaries and other members
of the shareholder communications community;
o Distribution (for qualified companies) throughout Europe, via our
syndication partner;
o Transcription of your interview in .pdf form;
o TAP (Technical Analysis Program) we will provide a TAP for your
Company; o Quantitative analysis of viewers, find out how many
people heard your interview;
o Corporate profile on WSA;
o Prominently featured in our WSA Newsletter, which reaches over 3,000
investors.
o WEBSITE AND INVESTOR DATABASE DEVELOPMENT
o Ground up conception to development. We handle the creative, backend
programming and day-to-day management of your website;
o Website hosting and unlimited email accounts;
o Installation and maintenance of an SEC compliant IR datafeed
(professional IR section for your investors!);
o Investor database. We will build an interactive investor database on
your website that will collect names and information and email your
releases and SEC filings DIRECTLY to your investors.
o PUBLIC WIRE RELEASES
o We will publish 4 press releases per month for your company;* o
Includes copy editing services (we will write your releases from
scratch or simply edit your copy).
o SEC FILINGS
o We will publish 1 8K per month for your Company;
o We will facilitate filings through our partner network at favorable,
discounted rates.
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|X| DEVELOPMENT OF INVESTOR COLLATERAL
o Our editorial staff will develop a broker `tear sheet' and 6-7 page
corporate profile on your Company, suitable for inclusion with your
investor kit;
o We will work with you to develop an investor kit if none is
currently available.**
|X| PRESS AND MEDIA MANAGEMENT CAMPAIGN
o We will work with you to develop a full release calendar, timing
releases and important press announcements for utmost effectiveness;
o Periodicals and trade publications contacted. We will establish
relationships with the editors of periodicals important to your
industry;
o News clipping service. We will perform competitive analysis and
track your news and the news of your competitors to keep you on top
of what is happening in your industry.
|X| PRODUCTION AND HOSTING OF QUARTERLY CONFERENCE CALL o We will coordinate
your quarterly conference call; o We will host your quarterly conference
call and archive it on WSA;
o Distribution of the conference call through the Best Calls(TM)platform.
Event listings will be distributed on the Web sites of
OpenCompany(TM)Disclosure Network members, including the National
Investor Relations Institute (▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇), the National
Association of Investors Corporation
(▇▇▇▇://▇▇▇.▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇), Investor Relations Magazine
(http:/▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇) and Institutional Investor Magazine
(▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇). The OpenCompany(TM)network includes
more than 500,000 individual and institutional investors,
securities lawyers, CEOs, corporate secretaries and other members
of the shareholder communications community;
|X| SHAREHOLDER SERVICES
o Our staff will answer investor phone calls and inquiries for
information;
o We will provide you with an investor email address at Cinapsys (i.e.
▇▇_▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇) and a toll-free number for your investors to
reach us.
* Press releases include the first 500 words, metro circuit + Internet,
trades and disclosure. Add'l words billed at $25.00/100 add'l words.
** Printing and postage is not included in the retainer fee and will be
billed separately plus 15%
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