STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement (the "Agreement") is made by and between
Direct Card Services, LLC, a Delaware Limited Liability Company
having an address at ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ and
ROI Media Solutions, LLC, a California Limited
Liability Company having an address at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ #▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇, ▇▇▇▇▇, ▇▇▇
(hereinafter collectively "DCS")
and
INFO TOUCH USA, INC., a Washington State corporation
having an office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ,
▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇
("IFT")
WHEREAS:
A DCS is in the business of creating, developing and offering stored value
bankcard and debit card solutions and products;
B IFT is in the business of designing, developing, deploying, and managing
self-service kiosk applications, kiosk(s), automated teller devices,
client server networks, WiFi networks, and other electronic devices ("IFT
Devices") as well as facilitating transactions via said IFT Devices;
C IFT and DCS believe that offering DCS's services and products through IFT
Devices and existing and future networks is a complementary business
opportunity.
D DCS and IFT both desire to market, sell, promote and leverage each others
existing and future products, and services, to the mutual benefit of each
company's business;
E IFT and DCS wish to work cooperatively to integrate the required DCS
technology and products to the IFT processing platform and DCS will
provide all of the necessary processing services to IFT for remitting the
transactions in order to enable payments of DCS partners' products and
services from IFT Devices;
F IFT and DCS wish to collaborate in the deployment of IFT Systems in
suitable DCS location partners' places of business in order to enable
DCS's products and services, and facilitate transactions of other
unrelated IFT Products and Services; and
NOW THEREFORE IN CONSIDERATION of the mutual promises and covenants hereinafter
set forth, and for other good and valuable consideration (the receipt and
sufficiency of which the Parties acknowledge), the Parties agree as follows:
1 of 25
1. DEFINITIONS;
1.1 In this Agreement (including the recitals hereto and this section) the words
and phrases set forth below shall have the meaning ascribed, namely:
"Confidential Information" shall mean: any information provided by either party
or prepared by either party (either oral, written or digital) reviews of such
information, technical data, or know-how provided to either party by the other
(including any director, officer, employee, agent, or representative of the
other) or obtained by either party from the other (including any director,
officer, employee, agent, or representative of the other) including but not
limited to, that which relates to research, Software plans, products, services,
customers, customer information including but not limited to e-mail addresses,
financial information, and authentications, markets, software, developments,
inventions, processes, designs, drawings, engineering, hardware configuration,
information, marketing or finances of the disclosing party.
"Convenience fee" shall mean: the fee paid by customers per transaction for
certain types of transactions performed at an IFT Device.
"Convenience Retail Business" shall mean stores similar in size to and offering
similar product and service options as those offered by a typical 7-11(R) or
Circle-K(R) convenience store and shall specifically exclude the retail grocery
category, including major grocery chains, local independent full-sized and
smaller grocery stores or chains.
"DCS Devices" shall mean: kiosk applications, kiosk(s), automated teller
devices, client server networks, Wi-Fi networks, and other customer facing
electronic devices for which DCS was or is financially responsible for
deployment.
"Effective Date" shall mean the date set forth on the signature page hereof.
"IFT core network(s)" shall mean: Locations where IFT has a significant role in
the operation of a network of kiosks.
"IFT Commission(s)" shall mean: the portion of the Convenience Fee payable to
IFT for its role in facilitating transactions via the DEVELOPED Application.
"IFT Devices" shall mean: kiosk applications, kiosk(s), automated teller
devices, client server networks, Wi-Fi networks, and other customer facing
electronic devices for which DCS is not financially responsible for deployment
and where IFT or one of its distribution partners is responsible for the
agreement governing the placement of the device in the specific location.
"IFT Intellectual Property" means IFT Software, Kiosk Management Services Plan,
and the software, working papers, notebooks, documents, records, memoranda,
drawings, operating instructions, know-how, and trade secrets that has been
developed and acquired by IFT with respect to the management and operation of a
kiosk terminal, including but not limited to, the Surfnet Premiere domain name,
trade and service marks.
"IFT Marks" shall mean the trademarks, service marks, logos, slogans, trade
dress and other proprietary descriptions listed on Schedule D attached hereto as
such list may be subsequently amended from time to time by IFT in writing.
2 of 25
"IFT third party device(s)" shall mean: devices owned, managed and/or operated
by third parties where IFT software and technology is used but IFT's role is
limited to the provisioning of software and technology.
"IFT Kiosk" shall mean: a customer facing, self-service, automated, WiFi enabled
terminal capable of providing products and services including but not limited to
▇▇▇▇ presentment, ▇▇▇▇ payment, prepaid wireless, pre-paid long distance, mobile
content, metered access and such other services.
"IFT Location Partner" shall mean: any retail business working with IFT.
"IFT Software" means Surfnet Premiere Software and IFT's computer programming,
formatting code, source code, object code, definitions, functionality, screens,
icons, data, information, documentation, operating instructions, records,
memoranda, drawings including not limited to, any files necessary to make forms,
buttons, check-boxes, and similar functions and underlying technology or
components, such as animation templates, interface programs which link
multimedia and either programs, customized graphics, manipulation engines, and
menu utilities, whether in database form or dynamically driven developed by IFT
and used inter-alia to operate and maintain a Kiosk and the Network.
"IFT Transaction(s)" shall mean: transactions made on IFT devices.
"DEVELOPED Application(s)" shall mean: the IFT client/server application
operating on IFT devices that enables DCS's debit card products and services to
interface with the IFT devices within the Surfnet Premiere environment.
"DCS Intellectual Property" means DCS technology and source code, and the
software, working papers, notebooks, documents, records, memoranda, drawings,
operating instructions, know-how, and trade secrets that has been developed and
acquired by DCS with respect to the management and operation of its bankcard
programs known as The Personal Advantage Media MasterCard(R), including but not
limited to, Personal Advantage Media MasterCard(R) website, sales and marketing
materials, bankcard program, logos and trade and service marks.
"DCS Location Partner" shall mean: a retail business working with DCS.
"DCS Payment Enabled Device(s)" shall mean: IFT Device(s) and DCS Device(s) that
have been identified in Schedule A from time to time.
"Media Screen" shall mean: a television or computer monitor either enclosed
within a Kiosk enclosure or separate and apart from the Kiosk.
"Surfnet Premiere Software" shall mean: IFT's proprietary kiosk security and
management software platform.
"Self Service Application" shall mean: applications developed by IFT independent
of the DEVELOPED Application including but not limited to ▇▇▇▇ Payment,
Pre-payment, Wi-Fi and Metered Access applications.
"Service Partner" shall mean: any third party contracted by IFT to conduct
services required to operate and maintain the kiosks.
3 of 25
1.2 The parties hereby confirm and ratify the matters contained and referred to
in the Preamble to this Agreement and agree that same and the various schedules
hereto are expressly incorporated into and form part of this Agreement.
1.3 The schedules attached hereto are incorporated into this Agreement by
reference and deemed to form a part thereof. The Schedules to this Agreement are
as follows:
Schedule "A" List of DCS Payment Enabled Kiosks
Schedule "B" Upfront Fees
Schedule "C" Marketing Services
Schedule "D" IFT Marks
Schedule "E" DCS Marks
Schedule "F" Custom Developed Application
Schedule "G" Products Marketing Agreement
1.4 Wherever the singular, plural, masculine, feminine or neuter is used
throughout this Agreement the same shall be construed as meaning the singular,
plural, masculine, feminine, neuter, body politic or body corporate where the
fact or context so requires and the provisions hereof and all covenants herein
shall be construed to be joint and several when applicable to more than one
party.
1.5 All references to currency in this Agreement are in US dollars.
2 Grant of Marketing Rights:
2.1 Subject to the terms and conditions of this Agreement, DCS hereby grants
to IFT a non-exclusive right to market and promote DCS Products on certain
IFT Devices mutually agreed upon by both parties for the term of this
agreement. The initial list of DCS Payment Enabled Kiosk locations is set
out in Schedule A and may be modified from time to time by mutual
agreement of the parties provided that;
a) IFT shall be free to offer or promote products that are similar to
or in competition to the DCS Products on any IFT Device as well as
develop direct links to other products and/or services that may
already be offered by DCS without first obtaining permission from
DCS subject to the terms of Section 3.7; provided, however, that IFT
shall be precluded from offering any similar or directly competitive
products to the DCS products on any DCS Device absent the express
written consent first obtained from DCS unless: (a) said DCS
Location Partner is already an IFT Location Partner, or (b) said DCS
Location Partner is in the Convenience Retail Business. In any and
all situations not covered by the terms of this paragraph 2.1(a),
IFT and DCS agree to work together in good faith for the benefit of
both parties.
b) IFT shall be free to offer or promote such other Self Service
Applications on IFT Devices as IFT may chose in its exclusive
discretion.
2.2 Subject to the terms and conditions of this Agreement, DCS hereby grants
to IFT a non-exclusive right to offer Self Service Applications on DCS
Devices mutually agreed upon by both parties for the term of this
agreement.
2.3 IFT agrees that it will provide DCS with marketing services in DCS Payment
Enabled Kiosk Locations subject to and consistent with Schedule C appended
hereto.
2.4 In connection with this Section 2 the parties acknowledge that it is the
intention of the parties to coordinate and expedite the marketing and
loading opportunities of the DCS bankcard and debit card programs using
IFT kiosks located at IFT Location Partners now existing or as may be
hereinafter established through the combined efforts of the parties. IFT
Location Partners will at their sole discretion dictate ability to provide
marketing and loading of DCS bankcard and debit card programs and assuming
permissions are granted by IFT Location partners then the IFT Location
Partner will dictate opportunities to market and load said DCS bankcard
and debit card programs. Accordingly, references made to Exhibit "G"
entitled "Products Marketing Agreement" which agreement is incorporated by
reference.
4 of 25
3 IFT General Obligations:
3.1 During the term of this agreement IFT shall provide to the DCS Payment
Enabled Devices listed in Schedule A, which may be amended from time to time,
the following services;
a) technical and software support and maintenance services to enable
DCS Products to be offered for sale including the installation and
maintenance of the DEVELOPED Application(s).
b) when available the marketing services as setout and described in
Schedule C.
The foregoing are collectively referred to as "the Services".
3.2 IFT shall determine the method, details, and means of providing the
Services. IFT may engage Service Partners in order to assist IFT in the
performance of the Services, provided however, that any person so engaged shall
be subject to provisions of this Agreement, including covenants of
confidentiality.
3.3 IFT will during the term use its reasonable best efforts to keep the DCS
Payment Enabled Device(s) listed on Schedule A operational and the DEVELOPED
Application(s) functioning, however, DCS acknowledges that the kiosk operations
and the provision of the Services is dependent upon a number of variables
including but not limited to:
- Internet connectivity,
- Telecommunications network infrastructure and reliability
- Location of the IFT Device(s) and the activities of the location
provider.
3.4 IFT will not be responsible for any loss of revenue or sales or any other
damages or loss of any nature or kind suffered by DCS, caused by or related to
any down or lost time during which the DCS Products are off line or not
functioning and as a result not available to the public whether caused as a
result of one or more kiosks being off line or malfunctioning or a failure with
respect to the DEVELOPED Application(s).
3.6 IFT will provide to DCS on a limited basis the Media Screen marketing
services described in Schedule C, as modified from time to time provided that
IFT will in its exclusive discretion determine:
1- In which locations the services will be provided
2- The content and/or message displayed on the media screens
The terms and conditions of this Section are subject to the provisions of
Section 2.3, above.
3.7 DCS acknowledges and accepts that during the term of this agreement IFT
maintains relationships with third parties to offer products and payments that
are in direct competition to DCS. There will be no restrictions to IFT
developing additional direct relationships with other third parties or other
transactional links to stored value card product and service providers for
facilitating such other services.
5 of 25
4 DCS General Obligations:
4.1 The offer of bankcard and debit card services is core to DCS's business
model, profitability and economic sustainability. Due to this fact, DCS will
continue to enlist retailers as co-marketers of DCS's bankcard and debit card
products and services, and facilitate DCS transactions via other DCS Devices
including clerk assisted point of sale terminals and Self Service Kiosks
provided by Kiosk companies other than IFT.
a) Retailer Relationships.
i. During the term of this Agreement DCS maintains direct
relationships with specific retailers who act as hosts for DCS
products and services. There will be no restrictions to DCS
developing additional direct retailer relationships and/or
contracts for facilitating the loading and sale of its
bankcard and debit card products and services provided that
the retailer in question does not already maintain a
contractual relationship with IFT.
ii. DCS and IFT agree to uphold the fee structure and revenue
sharing arrangement outlined in Schedule B regardless of
whether the DEVELOPED application is residing on an IFT
Device, an IFT third party device or in a DCS location where
IFT has agreed to process transactions for DCS.
b) Kiosk Based ▇▇▇▇ Payment Solutions. DCS may utilize competing Kiosk
Products/Services from different kiosk companies provided that:
i. it is required to do so in order to fulfill current or future
contractual obligations,
ii. IFT does not currently offer the capability and declines to
provide the Kiosks and Ongoing Kiosk Maintenance Solution to
DCS for the same price and performance level as the
alternative Kiosk Products/Services Company and/or within a
satisfactory timeframe, or
iii. DCS receives materially better terms or propositions
(determined at DCS's sole discretion) which shall include but
not be limited to the following terms:
i. DCS's cost for the Kiosk and the Ongoing Kiosk
Maintenance Solution is a minimum of 5% less using the
alternative Kiosk Products/Services Company vs. IFT's.
ii. Payment terms are more favorable
Should a retailer request that DCS utilize a Kiosk Products/Services Company
other than IFT, DCS will use reasonable efforts to communicate the availability
of the Kiosk Products/Services offered via IFT and the DEVELOPED Application.
4.2 DCS understands that the DEVELOPED Application only runs and has been
designed to only run within Surfnet Premiere without exception.
4.3 DCS agrees to provide IFT with DCS Partner(s) logos, marks and other
marketing material for the purpose of building the DEVELOPED Application and
Promoting the availability of the DEVELOPED Application on IFT Devices.
6 of 25
4.4 DCS agrees that it will not directly or indirectly (i.e. through another
distributor of services) circumvent IFT or in any way attempt to provide IFT
location partners with its products and/or services if the IFT location partner
is offering the DEVELOPED Application on IFT Devices.
4.5 Nothing in this Agreement shall inhibit IFT from licensing and distributing
the DEVELOPED Application to any of IFT Device(s).
5 Service Fees:
5.1 As compensation for the Services identified in Section 3 DCS agrees to pay
IFT;
a) for any DCS Products and/or Service sold through the DEVELOPED
Application the revenue sharing as set out in Schedule G.
b) for any DCS Kiosks equipped with Surfnet Premiere Software and the
DEVELOPED Application the fees and revenue sharing as set out in Schedule
G.
5.2 As compensation for the Services more particularly described in Schedule
F, DCS agrees to pay IFT the upfront development fees in Schedule B.
5.3 The revenue sharing fees as set out in Schedule G shall be due and payable
immediately and subtracted from monies collected by IFT daily before
transfer of funds to DCS.
6 Application Obligations:
6.1 Both parties will work cooperatively to establish a secure method for
transferring data between their respective systems and shall be responsible to
maintain their own computer systems and technology platform to a commercially
reliable level of service.
6.2 Each party will bear the costs and expenses incurred by such party's
participation in this program and under this Agreement except as specifically
noted in this Section 6.2. The parties may mutually agree to additional roles
and responsibilities as shall be set forth in writing and executed by both
parties and be deemed to be a part of this Agreement. Since time is of the
essence for DCS, DCS has agreed to pay IFT a development fee of no greater than
forty thousand dollars ($40,000.00) to expedite the DEVELOPED Application. IFT
shall provide DCS with an itemized accounting of its development fees related to
the DEVELOPED Application. IFT shall at its sole discretion have the right to
apply any such development fees as a credit towards radio or television
advertising (to be provided in the sole discretion of DCS) in an amount equal to
110% of the development fee in any media market wherein DCS offers bankcard or
debit card products and services in connection with IFT in accordance herewith.
The media may be used by IFT to promote any IFT product or service which is not
in direct competition with a product or service offered by DCS. (This DEVELOPED
Application is referred to in Schedule "F" as the Custom Developed Application.
All terms and conditions in Schedule "F" are deemed a part hereof.)
6.3 The following are the general technology and integration obligations of each
party:
7 of 25
a) IFT will be responsible to collect funds from IFT devices and
customers. Both parties agree to work cooperatively on defining a mutually
agreed upon system whereby DCS will receive funds from an IFT account
based upon the report to be mutually agreed between the parties in order
to credit DCS's bank account for the amount of each payment including
processing fees but minus IFT's commission as outlined in Schedule G.
b) IFT will hold DCS harmless from funds missing from kiosks. The
reporting of transactions in the IFT reporting extranet will be used for
reconciliation of funds collected for transactions occurring on IFT
Devices and will identify the funds owing to DCS from IFT.
c) DCS will hold IFT harmless from funds missing or improper remittance
and posting of funds for each transaction; provided, that IFT has complied
with its obligations hereunder and provided further that it has complied
with Section 6.3(a), above.
d) DCS will provide second-level customer service to IFT during the hours
of 08:00am and 08:00pm Monday - Friday and 9:00am - 2:00pm Saturdays EST
not including any bank and national holidays. DCS will provide first-level
customer service to the DCS bankcard and debit card customers consistent
with its normal practices.
6.4 IFT agrees to provide the following functions through its IFT devices:
a) The IFT devices will display a series of screens with menu choices to
select a specified DCS service and/or product. The kiosk will specifically
market and promote the DCS service and/or product consistent with Section
2.3, above. The kiosk will allow for the entry of funds to be credited to
any DCS debit card plus allow for amounts to be paid, credit balances and
any other such information deemed required. IFT shall choose with specific
input from DCS the DCS products that will be displayed on a kiosk or group
of kiosks.
b) The IFT processing platform will transmit each transaction to DCS for
authorization. DCS will return a message to the IFT platform with an
approval code and tracking number for each transaction.
c) Upon receiving approval code from DCS, IFT will confirm that the
customer has sufficient funds to settle the transaction. The device will
then issue a printed or emailable receipt to the customer according to the
format specified by DCS.
7 Promotional and Marketing Activities:
7.1 The parties will each designate one representative who will work together to
establish a joint marketing and promotional program to promote each other's
products and services.
7.2 The parties will work cooperatively to create various mutually agreeable
co-branding and co-marketing programs directed at other collaborative and
mutually beneficial partners in each company's distribution channels.
7.3 The marketing and branding programs to be created must be mutually
agreeable, but may include by way of example, point of sale materials (including
debit card applications), direct mail campaigns, and such other jointly
beneficial marketing and promotional programs as the parties determine
appropriate to outline, promote and highlight the commercial relationship
between them. IFT has final editorial rights, subject to reasonable input from
DCS, on all such marketing messages that appear on any devices either owned,
operated or facilitated by IFT.
7.4 Each party will bear the direct costs and expenses incurred by such party's
participation in this program unless agreed to by way of this agreement.
8 of 25
7.5 The parties may mutually agree to additional roles and responsibilities as
shall be set forth in writing and executed by both of the parties and be deemed
to be a part of this Agreement.
8 Term and Termination:
8.1 The term of this Agreement shall commence on the Effective Date and shall
continue for a period of five (5) years. Both parties may mutually agree in
writing to extend this Agreement on a year-to-year basis. Such an extension will
be realized via an amendment to this Agreement.
8.2 Either party may terminate this Agreement forthwith upon written notice to
the other party if the other party:
a) is in default of any payments under this Agreement and fails to remedy
such default within 30 (thirty) days of notice thereof; or
b) is in default of any other term and condition of this Agreement and
fail to remedy such default within 30 (thirty) days on notice thereof; or
c) makes a voluntary or involuntary assignment for the benefit of its
creditors, enters into any composition or arrangement with its creditors,
has a receiver or liquidator appointed with respect to its business or
assets, commences or is the subject of any proceedings under any
bankruptcy, insolvency or other law for the protection of creditors or
relief debtors, or ceases to carry on business in the ordinary course. Is
in default of any other term and condition of this agreement and failed to
remedy such default within 30 days.
8.3 Upon termination of this Agreement, IFT will deactivate the DEVELOPED
Application function from any of the IFT devices on which it is installed.
Additionally any other IFT Self Service Applications will be deactivated from
DCS Kiosks. The parties will return to the other party any and all technical or
proprietary documents specific to the other parties operations.
8.4 The termination of this Agreement shall not release either DCS or IFT from
paying any fees or expenses owed to the other party. Any fees owing will become
immediately due and payable upon termination of this agreement.
9 Intellectual Property / Trademark Licenses:
9.1 With the understanding that DCS's products and services, including bankcard
and debit card programs are DCS's core product and core competency, and the IFT
business model, devices, and competency at deploying Self Service Hardware,
Software, and associated services is IFT's core product and competency, the
Parties will retain all worldwide rights, title and interest in the Intellectual
Property of their respective Software, Hardware and know-how. The parties will
grant each other a nonexclusive, non-transferable license to use the other's
intellectual property pertaining specifically to the technology interfaces
created between the parties for the duration of this Agreement. If one Party
requests the other Party to make any customizations or special features, the
developing Party may choose to develop those customizations or special features
at its own expense, or may elect to enter into a Customization and Development
Agreement on a time and materials basis. Under all specialized customization and
development circumstances, the developing Party will retain all rights to the
intellectual property arising from such work, and will grant each other a
worldwide-unrestricted non-exclusive use license, binding only to the extent of
each respective definitive agreement, as agreed between the Parties in a license
agreement, for any and all IP developed under this contract.
9 of 25
9.2 DCS acknowledges and accepts that all times IFT retains 100% of all title,
rights and interest in the "DEVELOPED Application." IFT acknowledges and accepts
that at all times DCS retains 100% of all title, rights and interest in the
graphical presentation layer associated with the "DEVELOPED Application."
10 Conflicts:
10.1 During the course of performance of this Agreement, each party may disclose
to the other certain Confidential Information and each party shall hold the
other party's Confidential Information in confidence and shall use its best
efforts to protect it. Each party shall not disclose the other party's
Confidential Information to any third party, and shall use it for the sole
purpose of performing under this Agreement. At the conclusion of this Agreement,
each party shall either return the other party's Confidential Information in its
possession (including all copies) or shall, at the disclosing party's direction,
destroy the other party's Confidential Information (including all copies) and
certify its destruction to the disclosing party.
10.2 The term "Confidential Information" shall not include any information
which: (a) is in the public domain at the time of disclosure or enters the
public domain following disclosure through no fault of the receiving party, (b)
the receiving party, through demonstrable evidence, can demonstrate knowledge
prior to disclosure or receipt after disclosure through a third party having no
right or obligation of confidentiality by privity or otherwise to the disclosing
party or (c) is independently developed by the receiving party without reference
to the disclosing party's Confidential Information. Either party may also
disclose the other party's Confidential Information upon the order of any
competent court or government agency; provided that prior to disclosure the
receiving party shall inform the other party of such order.
10.3 Each party agrees that its obligations provided in this Section are
necessary and reasonable in order to protect the disclosing party and its
business, and each party expressly agrees that monetary damages would be
inadequate to compensate the disclosing party for any breach by the receiving
party of its covenants and agreements set forth in this Agreement. Accordingly,
each party agrees and acknowledges that any such violation or threatened
violation will cause irreparable injury to the disclosing party and that, in
addition to any other remedies that may be available, in law, in equity or
otherwise, the disclosing party shall be entitled to obtain injunctive relief
against the threatened breach of this Agreement or the continuation of any such
breach by the receiving party, without the necessity of proving actual damages.
11 Confidentiality:
11.1 IFT and DCS entered into a Non-Disclosure Agreement dated _____ ______,
2004. Such Non Disclosure Agreement is incorporated herein by reference and is
extended until such time this Agreement is terminated.
11.2 IFT's business plan involves the development, deployment, and monetization
of self-service public access kiosks and kiosk networks including but not
limited to the procurement and development of wireless telecommunications
networks, the development of placement of other networks and the products,
functions and services associated with the kiosks and the kiosk networks as well
as the development of ▇▇▇▇▇▇ and transactional relationships with a variety of
third parties including but not limited to wireless and utility billers. The
terms of this Section are subject to the provisions of Section 2.1(a).
[SH: Sufficient to state that the provision is subject to section 2.1(a)]
10 of 25
11.3 DCS's business plan involves the development, creation and sale of bankcard
and debit card products via media and other direct response outlets. DCS
recognizes the importance of utilizing new methods of distribution including but
not limited to kiosks. Except as defined in this Agreement nothing shall
prohibit DCS from entering into agreements with other providers of similar
services, kiosks, terminals or networks or prohibit DCS from entering into
agreements to provide services with or to other providers of similar services.
11.4 Except as defined in this Agreement IFT shall be at liberty to engage in
any other business or activity, which may conflict or compete with the DCS and
the services and functionality associated therewith, including but not limited
to, the ownership and operation of other kiosks, terminals and networks wherever
located. Except as defined in this Agreement, IFT shall not be under any
fiduciary or other obligation to DCS which does currently or could in the future
prevent or impede IFT from participating in, or enjoying the benefits of,
endeavors of a nature similar to the business or activity described in this
Agreement. The legal doctrines of "corporate opportunity" or "business
opportunity" sometimes applied to parties occupying a relationship similar to
that of IFT and DCS shall not apply with respect to this Agreement and, except
as defined in this Agreement, IFT shall be free to enter into or conduct any
business activity or endeavor it may wish to enter into and, without implied
limitation, except as defined in this agreement, IFT shall not be accountable to
DCS for participation in any such business activity or endeavor outside the
relationship constituted hereby which is in direct competition with the business
or activity undertaken and described in this Agreement subject to the terms of
Section 2.1(a), above.
11.5 Except as defined in this Agreement DCS shall be at liberty to engage in
any other business or activity, which may conflict or compete with the IFT and
the services and functionality associated therewith, including but not limited
to, the ownership, distribution, partnership and operation of other kiosks,
terminals and networks wherever located. Except as defined in this Agreement DCS
shall not be under any fiduciary or other obligation to IFT which does currently
or could in the future prevent or impede DCS from participating in, or enjoying
the benefits of, endeavors of a nature similar to the business or activity
described in this Agreement. The legal doctrines of "corporate opportunity" or
"business opportunity" sometimes applied to parties occupying a relationship
similar to that of DCS and IFT shall not apply with respect to this Agreement
and, except as defined in this Agreement, DCS shall be free to enter into or
conduct any business activity or endeavor it may wish to enter into and, without
implied limitation, except as defined in this Agreement, DCS shall not be
accountable to IFT for participation in any such business activity or endeavor
outside the relationship constituted hereby which is in direct competition with
the business or activity undertaken and described in this Agreement.
12 Representations and Warranties:
12.1 IFT represents and warrants to DCS that:
a. it has full corporate power and authority to execute and deliver
this Agreement; and
b. it has all the necessary rights and licenses to perform and complete
its obligations as set out in this Agreement in a professional
manner by qualified personnel.
11 of 25
Other than the representations and warranties set forth herein, IFT disclaims
any other warranty, whether express or implied, with respect to the provision of
any service described in this Agreement, including without limitation, implied
warranty of merchantability and fitness or durability for a particular purpose.
12.2 DCS represents and warrants to IFT that:
a. it has full corporate power and authority to execute and deliver
this Agreement; and
b. it has all the necessary rights and licenses to perform and complete
its obligations as set out in this Agreement in a professional manner
by qualified personnel.
Other than the representations and warranties set forth herein, DCS
disclaims any other warranty, whether express or implied, with respect
to the provision any service described in this Agreement, including
without limitation, implied warranty of merchantability and fitness or
durability for a particular purpose.
13 Limitation of Liability:
13.1 Neither party shall be liable to the other party or any other person for
any direct, indirect, consequential or punitive damages resulting from the delay
or failure of the Kiosk, including without limitation the loss of revenues,
income, profits, or goodwill, even if a Party has been advised of the
possibility or likelihood of such loss. This limitation shall apply regardless
of whether any action is brought in contract or in tort, including any claim of
fundamental breach and shall survive the expiry, termination, avoidance or
repudiation of this Agreement.
14 Notices:
14.1 All notices required or permitted to be given under this agreement shall be
in writing and either delivered personally or by pre-paid courier or transmitted
by facsimile or other similar means of confirmed electronic communication, to:
DCS at:
Direct Card Services, LLC
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: T. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax : (▇▇▇) ▇▇▇-▇▇▇▇
E-mail : ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
IFT at:
IFT USA Inc.
#▇▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chairman and CEO
Fax : (▇▇▇) ▇▇▇ ▇▇▇▇
E-mail : ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
with a copies to;
IFT Technologies Corp.
#▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
and:
12 of 25
Cawkell ▇▇▇▇▇▇, Business Lawyers
Attn: ▇▇▇▇▇▇▇ ▇. Cawkell and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
1260 - 1188 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ 4(a)2
Fax: ▇-▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
or to such other address and facsimile number as each party may notify to other
from time to time. All notices shall be effective when actually received.
15 General:
15.1 News Release; Both parties will issue a joint news release announcing this
Agreement. The content of this release will be mutually agreed upon within ten
(10) days of the execution of this Agreement. Each party may also issue a
separate release(s) once the content of said release(s) is approved by the other
party. Nothing in this Section 15.1 shall prevent either party from making any
disclosure required by law.
[IFT is a public company and must make public disclosures from time to time]
15.2 Force Majeure; Notwithstanding anything in this agreement, neither party
shall be liable for any failure or delay in performing its obligations under
this agreement, other than payment obligations, due to causes outside its
reasonable control, provided that a party claiming the benefit of this section
shall use its best efforts to eliminate the cause or causes beyond its control
including, without limitation, obtaining materials from other sources or using
services of other suppliers. Events of force majeure shall include, without
limitation, failure or malfunction of computer equipment or software,
interruption in telecommunication services, accidents, acts of God, strikes or
other labor disputes, cancellation of a kiosk network kiosk, and legislation or
regulations of any government or governmental agency. Nothing in this section
shall prevent a party from terminating this Agreement pursuant to section 8.2
hereof.
15.3 Amendments; The terms and conditions of this Agreement may only be modified
via an amendment to this Agreement signed by both parties.
15.4 Severability; If any provision of this Agreement is held by any court or
other authority of competent jurisdiction to be invalid, illegal or in conflict
with any applicable state or federal law or regulation, such law or regulation
shall control, to the extent of such conflict, without affecting the remainder
of this Agreement.
15.5 Assignment; No party may assign, voluntarily, by operation of law, or
otherwise, any of its rights, or delegate any of its duties under this Agreement
to any party without the other party's prior written consent, except:
a) that any party may with the other parties approval assign this
Agreement or any of its rights or obligations arising hereunder to the
surviving entity in a merger, acquisition, or consolidation in which it
participates, or to a purchaser of substantially all of its assets;
b) that IFT may assign this Agreement or any of its rights or obligations
arising hereunder to its parent company or any of the parent companies
wholly owned subsidiaries.
13 of 25
Subject to the foregoing, this Agreement shall be binding upon and shall
inure to the benefit of the successors and permitted assigns of the
parties.
15.6 Waiver; The failure of either party at any time to require performance of
any provision shall not affect the right to require performance at any other
time, nor shall the waiver by either party of a breach of any provision be a
waiver of any succeeding breach or a waiver of the provision itself.
15.7 Independent Contractors; The parties are independent contractors for
purposes of this Agreement. Neither party will have, nor represent that it has,
any power, right, or authority to bind the other, or to assume or create any
obligation or responsibility, express or implied, on behalf of the other party
without such other party's express written consent. No joint venture,
partnership, or affiliation between the parties is either created or implied
hereunder.
15.8 Entire Agreement; This Agreement and any exhibits attached hereto
constitute the entire agreement between the parties hereto and supersede all
oral and written negotiations of the parties hereto with respect to the subject
matter hereof.
15.9 Governing Law; This Agreement shall be governed and construed in accordance
with the laws of the State of Washington without giving effect to its principles
of conflicts of laws.
15.10 Dispute Resolution; Any controversy or claim arising out of or relating to
either party's performance under this Agreement, the parties' inability to agree
on any provision to be agreed to, or the interpretation, validity or
effectiveness of this Agreement, except as may be related to the infringement of
the intellectual property of either party, shall, upon the written request of
either party, be referred to designated senior management representatives of IFT
and DCS for resolution. Such representatives shall promptly meet and, in good
faith, attempt to resolve the controversies, claims or issues referred to them.
a) If such representatives do not resolve a matter referred to them within
thirty (30) calendar days after reference of the matter, the matter shall
be resolved by arbitration before the American Arbitration Association
located in Los Angeles, California and subject to its rules and
regulations. Judgment on the award rendered may be entered in any court of
competent jurisdiction. The arbitrators shall have no authority to award
punitive damages. Unless otherwise ordered by the arbitrator(s), the
parties shall bear their respective costs and attorneys' fees incurred in
connection with any arbitration hereunder.
b) Notwithstanding any other provision of this Agreement, each party shall
still be entitled to access the courts to obtain appropriate injunctive
relief.
[IP claims cannot be confined to any jurisdiction and often involve injunctive
relief]
15.11 No Third Party Beneficiaries; No third party rights are intended to be
created by this Agreement and as such there are no third party beneficiaries to
this Agreement.
15.12 Non-Solicitation; During the term of this Agreement and for one (1) year
thereafter, neither party will directly or indirectly solicit or attempt to
solicit for employment any employees or contractors from the party.
15.13 Counterparts; This Agreement may be executed in any number of counterparts
(including by facsimile) and all such counterparts taken together shall be
deemed to constitute one and the same instrument.
14 of 25
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
authorized, executed, and delivered effective as of October ____, 2004.
IFT USA Inc. Direct Card Services, LLC
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By:/s/ T. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------- --------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: T. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CEO Title: Managing Member
ROI Media Solutions, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Member
15 of 25
Schedule A:
List of DCS Payment Enabled Kiosk Locations
-------------------------------------------------------------------------------------------------------------------
# ▇▇▇▇ ▇▇▇▇ ▇▇▇ # ▇▇▇▇ ▇▇▇▇ ▇▇▇ # ▇▇▇▇ ▇▇▇▇ ▇▇▇
-------------------------------------------------------------------------------------------------------------------
1
-------------------------------------------------------------------------------------------------------------------
16 of 25
Schedule B
Upfront Development Fees
Development Fees
Since time is of the essence for DCS, DCS has agreed to pay IFT a development
fee of no greater than forty thousand dollars ($40,000.00) to expedite the
DEVELOPED Application. Payable 50% immediately and the balance upon completion
of development.
17 of 25
Schedule C
Marketing Services
--------------------------------------------------------------------------------
o DCS and IFT will define each months advertising program cooperatively.
--------------------------------------------------------------------------------
o IFT will use its commercially reasonable best efforts to provide DCS with
airtime on the Media Screen located above the transaction area in
locations that have Media Screens for the term of this agreement for the
purpose of promoting the availability of the DEVELOPED Application
Service.
--------------------------------------------------------------------------------
o If DCS wishes to provide IFT with broadcast quality commercials in Beta SP
-or- digital format. IFT will at its sole discretion digitize the
commercials. Costs associated with digitizing will be borne by DCS .
--------------------------------------------------------------------------------
o DCS may produce "promotional tags" featuring the availability of the
DEVELOPED Application. The tag will be in the form of a static image,
flash file or html page. The length of this "promotional tags" may vary.
--------------------------------------------------------------------------------
18 of 25
Schedule D
IFT Marks
[LOGO INFOTOUCH]
[LOGO SURFNET]
[LOGO CMMI]
TIO
19 of 25
Schedule E
DCS Marks
20 of 25
Schedule F
Custom Developed Application
Scope of Services
1.1. IFT will develop a kiosk solution designed specifically for DCS that
incorporates all of the one time software development, presentation layer
development, and project management costs, as well as the ongoing product and
service costs required to enable DCS's customers to conduct Stored Value Card
Reloads.
1.2. IFT will create a software and hardware solution that enables DCS's
stored value card transactions.
1.2.1 Total Application Development. Total Application Development
will include the following products and services:
(a) Software Development. IFT is responsible for developing the
application required to permit DCS's customers to conduct stored value card
reloads at IFT owned kiosks utilizing cash. IFT shall cooperate with DCS and its
technology partners and use commercially reasonable efforts to expedite delivery
of the software.
(b) Presentation Layer Design and Development. IFT is responsible for
developing a graphical user interface and user experience that is intuitive.
(c) Project Management. IFT is responsible for project managing all
aspects of the development of the software application development.
(d) Total Application Development Scope of Work and Acceptance Criteria.
IFT will work cooperatively with DCS on the creation of a Scope of Work
document.
1.3. IFT is responsible for installation of the application on all kiosks.
21 of 25
Schedule G
Financial Stored Value Card Programs
This Program Schedule describes the Programs and certain Parties' associated
responsibilities involving Stored Value Cards known as The Personal Advantage
Media Card MasterCard(R).
(1) DCS STORED VALUE CARD Program Summary
The Personal Advantage Media Card MasterCard(R) is a debit card program
offered primarily through media partners, either radio or television.
(2) Stored Value Card Shared Fees and Funds Remittance
IFT will use its electronic kiosks to provide a variety of services relating to
the marketing and servicing of Stored Value Cards. The fee sharing arrangement
for such services is set forth below. IFT shall be entitled to receive a portion
of certain of such fees, subject to the payment provisions of Section 2.1.2,
below. DCS shall have the right, subject to any applicable Issuer approval, to
change any customer pricing or fees, upon reasonable notice to IFT, provided IFT
will continue to have the opportunity to earn the applicable IFT Share, as
provided for below. Each party will earn its pro rata share of any incremental
increase in the Convenience Fee.
Stored
Value Card Transaction Description Convenience Fee IFT Share DCS Share
---------- ----------------------- --------------- --------- ---------
DCS Media New customer registration $ "X" $ "Y" $ 3.00
Card
Cash Reload fee $ "X" $ "Y" $ 3.00
Notes:
- "X" to be determined by IFT and its Location Partners
- "Y" equals Convenience Fee minus "DCS Share"
Customer information inquiry NC NC NC
* Any overage of cash due to rounding will be credited to the value
of the card. If DCS provides a refund to any IFT Customer for any
fee, DCS shall be entitled to reimbursement for IFT's portion of
such fee, which was previously retained by IFT ("Refund
Reimbursement"). DCS may offset any Refund Reimbursement owed to it
by IFT against any payment it may owe to IFT. DCS will identify any
Refund Reimbursement in reports submitted to IFT.
IFT may not impose any additional fees to any IFT Customer for any
of the Stored Value Card programs, or the servicing thereof, without
DCS prior written consent.
2.1.1 By 15:00 PST, on each day during the Term, other than on Saturdays,
Sundays and banking holidays ("Business Day(s)"), DCS shall provide to IFT
a summary and detailed report or reports (the "Funding Report") showing
its calculations of all transactions performed at IFT Locations and/or for
which IFT is entitled to receive a fee for the period(s) since the last
report. DCS shall make such calculations using a midnight to midnight
(Eastern time) twenty-four hour period for any calendar day (each such
period, a "Transaction Day.") The Funding Report shall group transactions
by type or product code and by IFT Location and shall be delivered to IFT
in whatever format is commercially feasible and mutually agreeable to the
Parties. The Parties shall work together to reconcile the Funding Report
with the Funding Amount, as defined below, and shall apply any resulting
adjustments to the next Funding Amount as appropriate. The relevant
operational staff shall work together in good faith to resolve any
disputed or unreconciled Funding Amount.
22 of 25
2.1.2 Not later than 2:00 PM (New York time) on each Business Day, IFT shall
initiate an Automated Clearing House ("ACH") system transfer from a bank
account designated by IFT to a bank account designated by DCS in an amount
(the "Funding Amount") equal to, for all for the relevant Transaction
Day(s):
(3) the number of DCS Media Card activation fees collected multiplied by
$____ plus ----
(4) the number of DCS Media Card load fees collected multiplied by $____
plus ----
(5) the aggregate amount of value loaded on to DCS Media Cards plus
The Funding Amount following any day other than a Business Day shall
include the Funding Amounts for Transaction Days since the last Funding
Amount was transferred to DCS. No such ACH transfer shall be initiated
until the Funding Amount for the relevant Transaction Day(s) for all IFT
Locations in the aggregate exceeds One Thousand and 00/100 ($1,000.00)
Dollars. Both parties agree to work together in good faith to resolve any
problems with ACH transfer that may arise hereunder. However,
notwithstanding the above, if no resolution is reached by the parties
within twenty-four (24) hours of written notice of the problem being given
to IFT, DCS may, in its sole discretion, stop accepting new transactions
in the event the unremitted Funding Amount at any time exceeds Twenty-Five
Thousand Dollars ($25,000) or if DCS believes, in its sole discretion,
that there has been any event that indicates an adverse change in the
financial condition of IFT.
(3) DCS's Responsibilities
(a) DCS will provide directly the necessary services to implement the
Stored Value Card Programs, including all customer service.
(b) DCS shall use best efforts to cause the Stored Value Cards to comply
with all governmental requirements.
(c) DCS request/response transaction server will interface, via the
connectivity, with the IFT system, subject to DCS approval, in order
to capture all information regarding the registration of new IFT
Customers, to load funds and handle inquiries by IFT Customers
regarding customer information. The DCS system will also act as a
gateway to the Optimum Pay USA, Inc. backend processing system. All
relevant IFT Customer record information, including personal
information, will be maintained by DCS and/or Optimum Pay USA, Inc.,
and such information shall remain the property of DCS and not be
retained by IFT except for the sole purpose of maintaining the
reporting extranet associated with the DEVELOPED Application. Card
balance and transaction identifiers will be passed to IFT each time
funds are loaded to enable IFT to provide the cardholder with
required information via a printed receipt at the point of sale.
(e) DCS customer service will process all requests for refunds and shall
provide all approved refund amounts and related detail to IFT not
less than monthly. Any fees previously retained or credited to IFT
by DCS that are associated with a refund by DCS of fees paid by any
IFT Customer shall be credited back to DCS for adjustment in the
daily reconciliation.
23 of 25
(4) IFT's Responsibilities
(a) IFT shall, with the assistance of DCS, and subject to approval by
DCS, work to develop the most effective and efficient method of
delivering a Customer interface via IFT's kiosk to permit IFT to
load the Stored Value Card.
(b) For the Stored Value Card Service:
(i) Enable certain information disclosures and permit initial
value loads.
(ii) Allow IFT Customers to swipe the relevant Stored Value Card
through a card reader and insert cash into the IFT kiosks for
purposes of adding to the Customer's balance associated with
the cards. Amount to be loaded at any single transaction shall
be limited to One Thousand ($1,000.00) Dollars (so that any
such requests will be rejected with appropriate messaging
prior to transmission to DCS). The minimum load amount shall
be Twenty-Five Dollars ($25.00) per transaction.
(iii) Allow the IFT Customer to swipe the relevant Stored Value Card
and obtain balance and transaction history information.
(c) IFT shall immediately transmit all pertinent information, defined by
DCS in use case documentation and mutually agreed upon by both
parties, collected by it to DCS through the Connectivity.
(d) IFT shall provide each IFT Customer a printed receipt showing
pertinent information defined by DCS in use case documentation and
mutually agreed upon by both parties.
(e) DCS will provide IFT with any and all information IFT requires in
order to facilitate and meet applicable governmental requirements.
In addition to any obligations or requirements pursuant to this
Program Schedule or the Agreement, IFT's requirements with respect
to governmental requirements. Such requirements may change from time
to time based on the addition of new IFT Locations or changes in
law, but any such changes shall be set forth in an amendment to
Schedule 1 and shall be subject to the provisions of the Agreement.
(f) IFT shall make available such technology resources as reasonably
required to enable the Stored Value Card programs. IFT shall make
such changes to its existing systems as the Parties may agree are
required including, but not limited to, changes to the kiosk or IFT
Location interface to provide necessary prompts to the Customer and
to produce required transaction receipts.
24 of 25
(g) IFT shall be responsible for uncollected or uncollectable funds and
any costs associated with collecting such funds, and no such
uncollected funds and no such costs shall be deducted from the
amounts remitted to DCS.
(7) Scope of Program
The products and services detailed in this Program Schedule are to be
offered only in territories or areas shown on Schedule 1. For purposes of
this Program Schedule only, and as it relates to the payment of fees or
loading of funds by IFT Customers, IFT is authorized to collect payments
for Stored Value Cards from IFT Customers for both applicable fees and
loads, subject to the following terms and conditions:
(a) DCS hereby appoints IFT as its authorized delegate with authority to
engage in the transactions contemplated by this Program Schedule;
(b) IFT, as the authorized delegate is not authorized to appoint
subagents or to assign its interests hereunder.
(c) IFT, as the authorized delegate, will operate in full compliance
with all present and future applicable laws and regulations, as may
be amended from time to time.
(8) Governmental Requirements
To the extent that any governmental requirement shall apply to either
Party, such Party shall comply therewith.
(9) Notwithstanding which parties may have entered into the Agreement or the
relationship of the Agreement to this Program Schedule, the Parties hereto
agree that only DCS and IFT shall have any liabilities and obligations to
each other pursuant to the terms and conditions of this Program Schedule.
25 of 25
