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 31416 W. Agoura Road, Suite 240
Westlake Village, California, 91361 USA and
ROI Media Solutions, LLC, a California Limited
Liability Company having an address at 4337
Marina City Drive #349ETN,
Marina del Rey, CA, 90292, USA
(hereinafter collectively "DCS")
and
INFO TOUCH USA, INC., a Washington State corporation
having an office located at 999 Third Avenue, ,
Seattle, WA, 98104 USA
("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:
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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.
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"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
bill presentment, bill
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 Bill 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.
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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.
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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.
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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 Bill 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.
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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:
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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
