Exhibit 10.94
SERVICES AGREEMENT
This Agreement made this 15th day of November, 2002, by and between DEFENSE
SOLUTIONS, LLC, with its office located at 0000 X Xxxxxx, XX, Xxxxx 000,
Xxxxxxxxxx, XX 00000 and GOVERNMENT INTERNET SYSTEMS, INC ("GIS"), a Nevada
Corporation, with offices at 0000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx.
W I T N E S S E T H
WHEREAS, GIS is a provider of web based emergency response including
ResponseFlash software products that facilitate the real-time movement of
information from any web-aware device to any other web-aware device, before,
during and after an emergency, and;
WHEREAS, GIS desires to become the leading global provider of web based
emergency response management systems for United States, international business
and governmental entities, and;
WHEREAS, GIS desires DEFENSE SOLUTIONS, LLC to aid and assist in the
expansion of GIS's business activity with US federal, state, and local
government departments and agencies, and DEFENSE SOLUTIONS, LLC is willing to
meet such desire.
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and other valuable consideration, the parties hereto agree as follows:
1. GENERAL REPRESENTATION AND RETAINER
(a) GIS hereby retains DEFENSE SOLUTIONS, LLC to assist in the marketing
of its web based emergency response management products and services to US
federal, state, and local governments.
(b) GIS hereby agrees to compensate DEFENSE SOLUTIONS, LLC for its best
efforts as provided in Attachment A.
(c) GIS agrees to reimburse DEFENSE SOLUTIONS, LLC for reasonable expenses
necessarily incurred under this Agreement as provided in Attachment A.
2. DUTIES AND REPRESENTATIONS
(a) GIS hereby agrees to furnish DEFENSE SOLUTIONS, LLC sales promotional
aids, such as price and data books, sales plans, advertising suggestions,
circulars, printed commercial and technical information, and other pertinent
material that GIS may have available from time to time in connection with the
services covered by this agreement. GIS will cooperate generally with DEFENSE
SOLUTIONS, LLC to enable it, acting with proper facilities and efforts on its
own part, to carry out its obligations under this Agreement.
(b) GIS hereby warrants that it will comply with all federal and state
laws concerning the reporting of actions under this contract as may be required
by the Federal Acquisition Regulations of Federal law, and further represents
that it understands that not all actions to be taken by DEFENSE SOLUTIONS, LLC
may be charged as allowable costs in connection with U.S. Government contracts.
While DEFENSE SOLUTIONS, LLC shall use its reasonable efforts to advise GIS of
those costs incurred which DEFENSE SOLUTIONS, LLC believes to be unallowable,
GIS further understands that DEFENSE SOLUTIONS, LLC takes no responsibility for
GIS allocation of the costs of DEFENSE SOLUTIONS, LLC's services as allowable or
non-allowable. In no event shall DEFENSE SOLUTIONS, LLC be liable for any
damages arising from or related to GIS's misallocation of such costs.
(c) In the event that the activities and services undertaken by DEFENSE
SOLUTIONS, LLC hereunder constitute "lobbying" as that term is generally defined
in the Lobbying Disclosure Act of 1995, 2 USC ss.1602, as amended, DEFENSE
SOLUTIONS, LLC will register as a lobbyist for GIS and provide GIS Inc. copies
of all reporting forms pertaining to activities on behalf of GIS filed pursuant
to that law.
(d) GIS understands that it is prohibited from charging directly or
indirectly, costs associated with lobbying activities to its contracts with the
United States Government. Unallowable costs associated with lobbying activities
are defined at Federal Acquisition Regulations (FAR) 31.205-22, effective as of
the date of this Agreement. DEFENSE SOLUTIONS, LLC agrees that in the event that
lobbying activity is one of DEFENSE SOLUTIONS, LLC's responsibilities, a
detailed accounting of time expended, individual agency/congressional employees
contacted, and GIS programs discussed will be provided to GIS for allocation of
such costs to unallowable cost pools.
(e) GIS and DEFENSE SOLUTIONS, LLC shall comply with and do all things
necessary to comply with United States laws and regulations and express policies
of the U.S. Government including, but not limited to, the requirements of the
Foreign Corrupt Practices Act, 15 USC ss.78dd-l, et seq.; the Federal
Acquisition Regulations, 48 CFR ss.1.101, et seq.; the International Traffic in
Arms law as implemented by 22 CFR Parts 120 through 130 and other applicable
regulations; the Xxxx Amendment, 31 USC ss.1352, and applicable regulations; and
the Department of Defense Joint Ethics Regulation (DoD 5500.7-R). No part of any
compensation or fee paid will be used directly or indirectly to make any
kickbacks to any person or entity, or to make payments, gratuities, emoluments
or to confer any other benefit to an official of any government or any political
party. DEFENSE SOLUTIONS, LLC shall not seek, nor relay to GIS any classified,
proprietary or source selection information not generally available to the
public.
(f) DEFENSE SOLUTIONS, LLC shall maintain appropriate records pertaining
to the services performed under this Agreement. Said records shall be subject to
examination and audit by GIS and the U.S. Government until notified by GIS in
writing that the records no longer need to be maintained.
(g) DEFENSE SOLUTIONS, LLC warrants and represents that no fee or other
compensation received under this Agreement shall be used or spent by DEFENSE
SOLUTIONS, LLC in violation of the laws of the U.S. or any other country in
which DEFENSE SOLUTIONS, LLC performs services under this Agreement.
3. SERVICES
DEFENSE SOLUTIONS, LLC shall put forth its best efforts to assist GIS in
obtaining appropriate contracts from US federal, state, and local government
departments and agencies and other organizations, as appropriate. Specifically,
DEFENSE SOLUTIONS, LLC shall provide GIS with the services set forth in
Attachment A on a best-efforts basis during the term of this Agreement.
4. CONFIDENTIALITY
(a) DEFENSE SOLUTIONS, LLC shall not disclose, publish or authorize others
to disclose or publish any confidential information (including existing and
prospective customer lists) disclosed to DEFENSE SOLUTIONS, LLC by GIS without
the prior written consent of GIS during the term of this Agreement and for a
period of two (2) years after the termination of this Agreement. Upon the
expiration or sooner termination of this Agreement, DEFENSE SOLUTIONS, LLC
agrees to return to GIS, Inc. all drawings, specifications, data and other
material obtained by DEFENSE SOLUTIONS, LLC from GIS in connection with the
performance of this Agreement.
(b) DEFENSE SOLUTIONS, LLC shall comply with the non-competition
requirements, if any, set forth in Attachment A.
5. TERM/TERMINATION
(a) This Agreement shall be deemed to have commenced on the date first
above written.
(b) This Agreement shall remain in full force and effect for a period of
twenty-four (24) months commencing on the date first above written, and
thereafter may be extended by mutual agreement.
6. ASSIGNMENT
DEFENSE SOLUTIONS, LLC shall not assign, pledge or otherwise dispose of any
of GIS's rights or delegate any DEFENSE SOLUTIONS, LLC duties under this
Agreement without the prior written consent of GIS.
7. REPORTS
DEFENSE SOLUTIONS, LLC shall make timely reports via telephone, facsimile
messages, electronic mail and face-to-face meetings with GIS's representative(s)
regarding information relating to projects undertaken or planned.
8. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement in respect to the subject
matter hereof and supersedes all previous agreements, negotiations and
commitments in respect thereto and shall not be changed or modified in any
manner, except by mutual consent in writing signed by the parties hereto.
9. MISCELLANEOUS
(a) This Agreement shall be governed by and construed in accordance with
the laws of the District of Columbia. Any disputes arising under this agreement
shall be referred to binding arbitration according to the rules and regulations
of the AAA in the District of Columbia.
(b) Any notices to be given pursuant to the provisions of this Agreement
shall be in writing and shall be sent by prepaid registered mail to the parties
at the addresses set forth in the introductory paragraph hereof.
(c) DEFENSE SOLUTIONS, LLC is retained by GIS only to the extent set forth
in this Agreement, and the relationship of DEFENSE SOLUTIONS, LLC to GIS is that
of an independent contractor. Further, no partnership or joint venture exists or
is intended to exist between DEFENSE SOLUTIONS, LLC and GIS under this
Agreement.
(d) DEFENSE SOLUTIONS, LLC warrants and represents that there are no
contractual or no compete obligations that conflict with DEFENSE SOLUTIONS,
LLC's provision of services hereunder. DEFENSE SOLUTIONS, LLC will indemnify GIS
against any claims of cost charged against GIS brought by any third party
previously affiliated with DEFENSE SOLUTIONS, LLC employees.
(e) If any one or more provisions of this Agreement shall be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired; provided, however, that in such case the parties agree
to use their best efforts to achieve the purpose of the invalid provision by
introducing a new legally valid provision.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the date first above
written.
DEFENSE SOLUTIONS, LLC GOVERNMENT INTERNET SYSTEMS, INC.
By: By:
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Xxxxxxx X. Xxxxxxxx Xxxxxxx X Xxxxxxxx
Chief Executive Officer Chairman and Chief Executive Officer
Date: Date:
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ATTACHMENT A
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I. SPECIFIC SERVICES: This Attachment may be updated by mutual agreement
between DEFENSE SOLUTIONS, LLC and GIS.
DEFENSE SOLUTIONS, LLC shall put forth its best efforts to:
(a) Assist GIS in achieving compliance, if necessary, with the
requirements of National Security Telecommunications and Information Systems
Security Policy (NSTISSP No. 11), dated January 2000, Subject: NATIONAL POLICY
GOVERNING THE ACQUISITION OF INFORMATION ASSURANCE (IA) AND IA-ENABLED
INFORMATION TECHNOLOGY (IT) PRODUCTS which requires all information assurance
products used in sensitive Federal Agencies to be evaluated and validated by
July 1, 2002 in accordance with:
o The International Common Criteria for Information Security
Technology Evaluation Mutual Recognition Arrangement
o The National Security Agency(NSA)/National Institute of Standards
and Technology (NIST) National Information Assurance Partnership
(NIAP) Evaluation and Validations Program, or
o The NIST Federal Information Processing Standard (FIPS)
validation program. 1, 2002.
(b) Assist GIS in securing contracts and orders for its web based
emergency response management systems of products and services to US federal,
state, and local governments.
(c) Coordinate meetings between GIS and the departments and agencies of
the U.S. Armed Forces and other federal government departments and agencies as
appropriate, and other interested parties who could use the GIS web based
emergency response management systems line of products and services.
(d) Identifying the key offices that will facilitate GIS's participation
in demonstration programs, tests, and studies that may lead to US federal, state
or local government acquisition of GIS's web based emergency response management
systems line of products and services.
(e) Make, or assist in the making of, presentations on the GIS's web based
emergency response management systems products and services to officials of U.S.
federal, state, and local government agencies as appropriate, and other
interested parties, as mutually agreed.
II. NON-COMPETITION
DEFENSE SOLUTIONS, LLC shall not during the term of this Agreement promote
or assist any other party in promoting a web based emergency response
communications framework that competes directly with GIS's line of products and
services.
III. COMPENSATION
DEFENSE SOLUTIONS, LLC agrees to put forth its best efforts on behalf of
GIS and in return, GIS agrees to compensate DEFENSE SOLUTIONS, LLC with equity
as agreed in (a) below, with management oversight of GIS, as agreed in (b) below
and with a success bonus or bonuses as agreed in (c) below:
(a) EQUITY. Upon execution of this agreement, GIS will cause Vertical
Computer Systems, Inc. ("Vertical") to issue to DEFENSE SOLUTIONS, LLC 3 year
warrants to purchase four million (4,000,000) shares of Vertical Computer
System's common stock at an exercise price of $0.075 in lieu of payment of a
monthly fixed-price retainer. These warrants will remain the property of DEFENSE
SOLUTIONS, LLC and DEFENSE SOLUTIONS, LLC is free to retain or dispose of these
warrants, and the underlying stock if exercised, at the sole discretion of
DEFENSE SOLUTIONS, LLC.
(b) MANAGEMENT OVERSIGHT. DEFENSE SOLUTIONS, LLC is entitled to one seat
on the Board of Directors for GIS. The occupant of this seat on the Board of
Directors is entitled to the same compensation and has full authority to
exercise all rights, privileges and responsibilities as any other member of the
board. This term for this seat on the Board of Directors shall run concurrent
with the term of this contract and any renewals to this contract, as may be in
force from time to time
(c) SUCCESS BONUS. A commission of fifteen (15%) percent of the
face-amount of all contracts and first year maintenance fees less any third
party royalties will be payable immediately upon receipt of payment by GIS from
any US Government, non-government or commercial enterprise or organization
resulting from a contact initiated by DEFENSE SOLUTIONS, LLC. If that contract
leads to a subsequent contract with the same entity within twelve months of the
completion date of the original contract, a similar commission is due upon
receipt of payment by GIS.
IV. DELIVERABLES
1. A Strategic Plan for the marketing of the GIS ResponseFlash web based
emergency response management system line of products and services to
US federal, state, and local governments. Said strategic plan will
include a plan to achieve compliance with NSTISSP no. 11, if
applicable.
2. Joint briefings and presentations coordinated with GIS.
3. Meeting notes, transcripts of meetings, comments from potential
customers, questions from customers, intent to commit to requirement
analysis or purchase of the GIS's line of products and services.
4. Potential customer recommendations on improvements and changes to the
GIS web based emergency response management system line of products
and services, product presentations, and/or marketing and sales
literature.
5. Interim progress reviews.
6. Monthly report and invoice.
V. MILESTONES
1. Within one month of the effective date of this Agreement. (reference
deliverable #1)
2. Monthly from inception to completion of the contract (reference
deliverable #2)
3. Monthly from inception to completion of the contract (reference
deliverable #3)
4. Monthly from inception to completion of the contract (reference
deliverable #4)
5. Initially twice per month, then monthly to completion of the contract
(reference deliverable #5).
Not later than the 5th of each month (reference deliverable #6).
